§ 3.16 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.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.1349
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Strabolgi) in the Chair.]
§ Clause 30 [Scrutiny of Bills by the Scottish Executive]:
§ Lord Mackay of Drumadoon moved Amendment No. 228:
§ Page 15, line 31, after ("statement") insert ("to the Parliament").
§ The noble and learned Lord said: In the absence of my noble friend Lord Mackay of Ardbrecknish from the Chamber, perhaps I may say what a great pleasure it is to be able to start a Committee day promptly. I am sure that the Ministers are as determined as I am to make good progress in this fullish day that we have before us.
The first group of amendments comprises Amendments No. 228, 229 and 232. I seek to propose amendments to Clause 30 which, falling upon a similar provision in the Human Rights Bill, provides that when a member of the Scottish executive in charge of a Bill brings the legislation before the parliament he shall,
on or before introduction of the Bill in the Parliament, make a statement to the effect that in his view an Act of the Scottish Parliament containing the same provisions as those in the Bill would be within the legislative competence of the Parliament".
§ The three amendments that I propose are designed to achieve, first, that the statement is made "to the Parliament"; and, secondly—this is a very important suggestion—that the view which the member of the Scottish executive puts forward should not be his own view but that of the Scottish executive. Thirdly, Amendment No. 232 seeks to ensure that the statement should be made in two stages during the passage of the Bill. It should be made primarily during the general debate on the Bill, which is provided for in Clause 34(1)(a), and then it should be repeated during the debate on the final stages, which is provided for in Clause 34(1)(c). Quite obviously, the last amendment is designed to take account of the possibility, as one anticipates will happen with the Scottish parliament—as, indeed, happens with Bills going through this House—that not only opposition members but the minister in charge of a Bill will seek to bring forward amendments on behalf of the Scottish executive.
§ In my view it is important that the view which is placed before the members of the parliament is the view of the Scottish executive itself. This is because the issue as to whether or not the provisions set out in the Bill would lie or do lie within the legislative competence of the parliament is a question of law. When a Bill becomes an Act of the Scottish parliament, there are devolution issues which fall to be determined in accordance with the procedures set out in Clause 91 in Schedule 6 of the Bill. The first of these is whether an Act of the Scottish parliament or any provision of an Act of the Scottish parliament is within the legislative competence of the parliament.
§ So the issue is a question of law. And, with the greatest respect to those who will serve as ministers in the Scottish executive, it is not their personal view as laymen that matters, it is the view, on this important question of law, of the Scottish executive.1350
§ Anyone who had the benefit of hearing the long Pepper v. Hart statement read into the Official Report last week by the noble Lord, Lord Sewel, will know that that issue is a highly complicated one. If such a statement is made to the Scottish parliament it will be open to members of the parliament to ask questions about the statement, raise queries as to whether it is entirely correct, and no doubt identify particular provisions in the Bill where there may or may not be some doubt as to whether the provision lies within the legislative competence.
§ It is important that the views that are being defended should be clearly identified as the views of the Scottish executive as a body. It is inconceivable that any such statement will have been made without the benefit of legal advice. One suspects that the statement will be drafted or at least revised by those lawyers who are acting for the Scottish executive, whether solicitors within the department which the first minister will no doubt establish, or people advised by the Scottish law officers and the legally qualified staff of the law officers.
§ If lawyers are having an input into the statement on behalf of the Scottish executive, it seems to me appropriate that it is the view of that body which should be made clear. We do not yet know what conventions will apply to the advice given by the Scottish law officers to the Scottish executive. My amendment does not require one of them to come before the parliament and defend the view on behalf of the executive. I do not seek to trespass on that area at the moment. All I seek to establish is what I believe is important; namely, that the Bill should not remain the personal view of the Minister but should reflect the view of the Scottish executive. I beg to move.
§ The Earl of Mar and Kellie
It is undoubtedly correct to incorporate the content of these amendments into the First Reading procedure in the Scottish parliament. I am sure that the Scottish parliament will do that. But, as the question of the vires of the parliament will always be a major component of the scrutiny process in the Scottish parliament, on these Benches we do not believe that it is necessary to incorporate the amendment on the face of the Bill.
§ Baroness Ramsay of Cartvale
Amendments Nos. 228 and 232 tabled by the noble Lord, Lord Mackay of Drumadoon, are, in our view, unnecessarily prescriptive. We agree with the views put forward by the noble Earl, Lord Mar and Kellie. We do not believe that we should be trying to prescribe how Scottish ministers should make the statement required by Clause 30. We should leave it to the parliament and Scottish ministers to agree on how the information required by Clause 30 is presented both to the parliament and the public at large.
It is possible, for example, that the statement would be included as part of the memorandum accompanying the Bill when it is introduced, just as at present the Explanatory and Financial Memorandum accompanying a Bill introduced in this House includes information on various matters. On the other hand, if we accepted the 1351 amendment it could be read as implying that the minister must make an oral statement to the parliament on the introduction of a Bill. I believe we should leave it to the discretion of the minister to decide on the form of the statement as the Bill provides.
Equally, if any member of the parliament decides that it would be helpful to have a view from the executive on the legislative competence of a Bill at some stage after introduction, it would be up to that member to seek the view of the minister during debate. We do not need Amendment No. 232 to allow that to happen, and it seems quite inappropriate to require that such a view must be given in every case at two stages of the passage of a Bill.
I hope that noble Lords will agree that we are right to leave it to the Scottish executive and the parliament to develop its working practices which will ensure that questions relating to legislation, including the vires of legislation, can be revised and addressed as appropriate. It is our intention that the parliament should be allowed, where appropriate, to decide for itself how it should operate day to day.
We also consider that the other amendment in this group, Amendment No. 229, is inappropriate. It is likely that a member of the Scottish executive will want to seek the approval of his colleagues before making a statement about the legislative competence of a Bill before it is introduced into the parliament. But, at the end of the day, it will primarily be his responsibility to satisfy himself that the Bill he is responsible for is within the legislative competence of the parliament. It is therefore appropriate that the statement will record his view. However, there is the safeguard that all the ministers will be legally responsible for any such statement through Clause 48(4) which provides that, among other things, any act of a member of the Scottish executive will be treated as an act of each member of the Scottish executive.
I therefore urge the noble Lord to withdraw his amendment.
§ Baroness Carnegy of Lour
I was interested in that reply. I expect to an extent that it holds water well. However, I remind the noble Baroness that this matter and others which we are about to deal with are not just questions of the law and legal mechanics. How the public view the progress of the Bill in the parliament, the discussion and so on will matter very much. The reputation of the parliament and the quality of Scottish legislation will hang on the smooth working of the system.
The noble Lady said that the Government do not mind whether this statement is made prior to the Bill being laid before the parliament or whether it is in the Explanatory and Financial Memorandum. If one thinks this through and tries to imagine how the procedure will work, I think it would be much better if the statement was made before the Bill appeared. Once the Bill is printed, the die is cast and the Bill has to be discussed. People will want to know that it is considered to be intra vires, and why, before they begin to discuss it at all.
1352 I wonder whether the Government have thought that out. Are the alternatives equally good? Of course the parliament needs to have a say in as much as possible of its proceedings, but these matters are of great importance to the extent that the quality of law is affected and as regards the way in which people view the parliament. Have the Government really considered whether these alternatives are equally good?
§ 3.30 p.m.
§ Baroness Ramsay of Cartvale
I agree wholeheartedly with the noble Baroness that this is not just a question of legal mechanics. I also agree with her that the workings and the proceedings of the parliament and how they are viewed by the public are matters of the utmost importance. But does not the noble Baroness think that the members of the Scottish parliament would think of that as well? The Government have thought through carefully what the Bill contains on these points and, as always, the amendments that are proposed by the noble and learned Lord, Lord Mackay of Drumadoon. The view of the Government is that they are unnecessarily prescriptive, as I have said, and that there is adequate coverage of the basic principles underlying them in the Bill as it stands.
§ Lord Hylton
I appreciate what the Minister has said about Clause 48 which asserts collective responsibility within the executive, but so, in my view, does Amendment No. 229. It would have the merit of building in the legal point of view of the Scottish Law Officers at the earliest possible stage. Here I agree with the noble Baroness, Lady Carnegy of Lour, that it is desirable that this clarity should be introduced into the proceedings of the parliament at the earliest possible stage in each Bill.
§ Baroness Ramsay of Cartvale
I appreciate the concern of all Members of the Committee to make sure that the best practice is in force in the Scottish parliament. That is something we all agree on. However, if I may say so, I think there is a tendency to try to second guess the members of the Scottish parliament in dotting every "i" and crossing every "t" as to what they should do at all times. The Government trust the good political sense and the good common sense of the members of the Scottish parliament. I stand by our opinion of these amendments which is that they are over-prescriptive and unnecessarily prescriptive.
§ Lord Rodger of Earlsferry
I hope the noble Baroness can help me. I, of course, understand the point that she makes about trusting the Scottish parliament and, presumably, the Scottish executive. Can she explain the practice of this clause? She mentioned en passant Clause 48(4) giving rise to some kind of collective responsibility on the part of the Scottish executive. I understand that; but what is the nature of this responsibility? If the statement turns out to be wrong—it has been made for some purpose which I do not quite follow—what is the nature of the responsibility which is being shouldered by the Scottish executive for that statement?
§ Baroness Ramsay of Cartvale
This would then become a question of vires and may be challenged in the way that any question of vires may be challenged.
§ Lord Rodger of Earlsferry
I understand that. The question is, what is the responsibility which the Scottish executive shoulders by making the statement? Will it become liable for damages to people who have relied upon the statement? What exactly is the purpose of the statement and what is the nature of the responsibility that is assumed?
§ Baroness Ramsay of Cartvale
The purpose of the statement—which the noble and learned Lord, Lord Mackay of Drumadoon, also seeks in his amendment, and which the Government have laid down in the Bill—is that the Scottish executive assumes the responsibility of saying that in its judgment the Bill (or whatever it is bringing forward) is within the vires, the power and competence of the Scottish parliament. I do not think it is any more or any less than that. It would be challenged in the usual way if there was anything wrong. It is not intended to be a legal responsibility on the executive; it is a statement to ensure that the executive has properly considered the issue and made a proper judgment in so far as it is competent to do so—one would hope it would have considerable competence—that the measure is within the power and competence of the Scottish parliament.
§ Lord Mackay of Drumadoon
I am grateful to the noble Baroness for giving such a full response. However, I have some difficulty with Clause 48(4). As I understand it, it seeks to deal with situations where some form of legal liability or legal rights may arise as a result of the acts or omissions of one member of the Scottish executive which binds the executive and any other member of it. Over the Recess I shall think carefully about the reliance which the Government place on that.
I began to think that in her closing remarks the noble Baroness was coming round to the view that there may be some merit in the approach that I advocate because she talked of the Scottish executive putting forward a Bill which in its judgment—those were her words—fell within the legal competence of the parliament. I am sure she is correct about that. It is inconceivable that a Bill will be put forward without the Scottish executive as a body being satisfied that the Bill falls within the legal competence of the parliament. If that is so, I have some difficulty as to why it is the personal view of the member that is provided for in Clause 30(1) and not the view of the Scottish executive. I do not regard the giving of the view as an act or an omission. I regard it as an expression of opinion on what I have already suggested is a highly complicated question of law.
This matter will benefit from some thought over the Recess, particularly when we consider in detail the long Pepper v. Hart statement about Clause 28 which was made some days ago. On the understanding that this matter may be worth revisiting, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1354
§ [Amendment No. 229 not moved.]
§ The Earl of Mar and Kellie moved Amendment No. 230:
Page 15, line 34, at end insert (", and
(b) of his view as to the economic, social and environmental impact and sustainability of an Act of the Scottish Parliament containing the same provisions as those in the Bill").
§ The noble Earl said: This amendment continues the subject of the introduction procedures for legislation in the Scottish parliament. The amendment has the purpose of ensuring that Ministers of the Scottish executive bring forward legislation which is certified to be not just intra vires, as we have just discussed, but also economically, socially and environmentally friendly and sustainable. Indeed, I wish to extend this amendment to any member of the Scottish parliament who is introducing a Bill.
§ The amendment has been proposed to me as a probing amendment by the RSPB in Scotland. I believe that the issue is an important one for the Committee as it would give a guarantee that the Scottish parliament will enact only sustainable legislation. The prohibition in effect on unsustainable legislation will save the Scottish parliament a degree of scrutiny time, although it will by no means eliminate the need for scrutiny. While there has been a general desire for a minimum of restrictions on the activity of the Scottish parliament intra vires, I believe that we are allowed to set down some minimum philosophy on the face of the Bill. The complex nature of compliance with existing Scottish, British and Community law will ensure that most enactments are ultimately compliant. I therefore see no reason why they should not be required to be in compliance at the start.
§ Amendment No. 242 is grouped with this one. It is aimed at ensuring that all Scottish Acts are compatible with the UN Convention on the Rights of the Child as adopted by the United Kingdom Parliament. It is important that Scottish Ministers, indeed any proposer of legislation in the Scottish parliament, should have the convention on children's rights firmly in front of them when drafting legislation. For a Bill to be presented in an incompatible state would be a demonstration of incompetence and possibly contempt. The presentation of incompetent legislation is always a waste of parliamentary time. I am absolutely confident that, even in the friendly Scottish parliament, those who form the Opposition will pounce on incompetent legislation and that which is ultra vires. The inclusion of this new clause on the face of the Bill would ensure that the Scottish parliament understood its responsibilities right from the start and that all citizens interested in children's welfare and their future would have confidence in the legislation passed by the parliament. The children's rights "proofing" measure must be seen as an asset to the Bill and to the parliament. I beg to move.
§ Lord Sewel
The noble Earl suggests that Amendment No. 230 would ensure that the legislation coming before the parliament was economically, 1355 socially and environmentally friendly. The amendment does not actually state that. It states that the Minister would be required to give,his view as to the economic, social and environmental impact and sustainability of an Act of the Scottish Parliament containing the same provisions as those in the Bill".Looking back on the history of legislation, I believe that that assumes a degree of wisdom and omniscience that has been sadly lacking in our previous attempts over a wide area of policy. The thought that a Minister would be able to make a full and comprehensive statement of the likely economic, social, environmental and sustainability impact of any single piece of legislation is one that I find quite daunting. However, I have little difficulty in recognising and supporting the sentiments to which the noble Earl wishes to draw attention. I am sure that the noble Earl, Lord Lindsay, would have made a similar case were he in his place today.
The difficulty is that this degree of detail, as to the type of introductory statement that should be made and the sort of matters a Scottish Minister should include when introducing a Bill, comes down to minutiae. I wish to see the Scottish parliament and Scottish Ministers continue their commitment to sustainability, which has been well established in the Scottish Office over recent years. However, it is not right for the Bill itself, which sets up the framework within which the parliament and the executive can decide their own policies, to take that step and begin setting out in detail how the parliament should go about its business. I have no qualms at all in fully supporting the noble Earl's wish for the Scottish parliament to move forward on a comprehensive front in terms of economic, social, environmental and sustainability issues. However, I do not believe it right for this Parliament to impose that sort of statutory duty on a Minister.
§ Baroness Linklater of Butterstone
I support my noble friend on Amendment No. 242 dealing with the UN Convention on the Rights of the Child. It is surely only right that every Bill should be considered in terms of its compliance with the convention. The future of our children is one of the pre-eminent issues that we should bear in mind: survival rights, development rights, protection rights and participation rights, all of which are contained in the convention. UNICEF wholeheartedly supports the amendment and the positive impact it sees it having on the lives of children in Scotland. Given that backing, the amendment should be hard to resist.
§ Lord Mackay of Ardbrecknish
I thought I would listen to the Minister before intervening. I was puzzled when the noble Earl, Lord Mar and Kellie, said on the previous amendment that he did not think a statement should be made as a statement, and he now comes forward with a whole raft of matters on which a statement is to be made. All the noble Earl has missed out is motherhood and apple pie.
This is an instance of where the "trust the Scottish parliament" theme enters into the argument. Any government bringing forward legislation believe that they are doing the right thing. They may not be doing 1356 the right thing, but they believe they are. They certainly think they are doing the right thing in relation to economic and social issues. I suppose, in matters of social security, the Government believe the clear-out they have had over the past two days in the Department of Social Security to be the right thing. I am sure all governments believe that the environmental impact of their legislation is the right thing. As for obeying the UN Convention on the Rights of the Child, I assure the Committee without giving away any secrets that the L Committee never talked of anything other than these matters. It is certainly advised by the learned Law Officers about EU legislation and conventions and United Nations conventions to make sure that the legislation is correct. We should be extremely careful about going overboard in regard to statements.
After hearing the Minister's reply, I wonder what is the difference between Clause 30 and all the matters that the noble Earl wishes to see included. I believe that they would be unnecessary words on the face of the legislation. Equally, I think that the whole of Clause 30 is unnecessary. Frankly, if the Minister tells the Committee that the Scottish executive and the Scottish parliament can be trusted not to bring forward measures that are environmentally, economically or socially unsound, or disobey a convention, then surely we can also trust the parliament not to bring forward legislation which is against its legal competence. The Minister's answer suggests that the whole of Clause 30 could easily be dropped. Perhaps the noble Lord should move against his own clause. If the Scottish parliament does not need to hear statements about all these other matters, surely it does not need to hear a statement about the competence of legislation. I should have thought that if the L committee exists, as I am sure it will, in the Scottish parliament, one matter about which it will be concerned, and the one question that it will ask is: is this within our legislative competence? The matter will have nothing to do with a statement to the Scottish parliament. It will be a question of whether or not it is hauled before the courts of this country if it attempts to go outside the legal competence. I agree with the Minister's argument against the noble Earl's amendment. But, frankly, his argument convinces me that the whole clause should be dropped.
§ Lord Sewel
I cannot resist replying to that point. There is a fundamental difference between Clause 30 as it now stands and the amendment offered by the noble Earl. Clause 30 deals with the basic issue of a statement about competence and whether the proposed legislation is within the competence of the parliament. That is a fundamental issue. The noble Earl's amendment deals with policy content, which can be discussed only after the issue of competence has been decided. So the noble Earl's amendment is very much a second order amendment, while the clause is a first order clause.
§ Lord Mackay of Ardbrecknish
But surely, if one is considering policy, one must look at Schedule 5 where sometimes policy on the same issue is partly reserved and partly not reserved. Therefore, the question of competence will have to run through the whole of the Scottish government's legislative programme. It will 1357 have to address the issues all the time as it draws up the legislation. As it will have done that, the idea that the minister appearing before the parliament and saying "We believe this is within the legislative competence" will carry any weight in a court of law is, I suspect, Cloud-cuckoo-land.
§ Baroness Young of Old Scone
I hesitate to get in the way of the ping-pong between the two Front Benches on the issue. I support the noble Earl, Lord Mar and Kellie, who made valuable points on Amendment No. 230.
I wish to address some of the questions that have been raised in the past few minutes. Recently we have passed Article 3(d) of the Treaty of Amsterdam, which brought environmental protection requirements right to the heart of all Community policies. I assume that the Scottish parliament will be a good European in that respect and perhaps might need a shred of comfort in addressing its environmental and sustainable development duties in all its legislation.
I also wish to pick up the point with which the noble Lord, Lord Mackay of Ardbrecknish, taunted me in my absence last night in terms of consistency. Recently, in the Government of Wales Bill, we had debates in this House and another place on strengthening the clear sustainable development duty that the Welsh assembly will have. We will shortly debate the sustainable development duty of the regional development agencies in England. Last night the noble Lord, Lord Mackay of Ardbrecknish, called for consistency from the three absent noble Baronesses. I should have thought one element of consistency might be some reference to sustainable development on the face of the Bill.
The importance of sustainable development for Scotland cannot be underestimated. The Committee has heard me speak on many occasions of the economic value of Scotland's environment; it is a hugely important part of its economic future. I hope that the words of support that we have received from the Minister will indicate that not only in its legislative programme but also in all its works the Scottish parliament will put sustainable development at the heart of all it does.
I thank Members of the Committee for being so animated about the point. I hope that means that people are interested in it as a topic, as well as simply part of the machinery of government. It is vital to see sustainable development not simply as another policy area that can be added to a string of policy areas, but as a process and an approach for the future in Scottish legislation.
§ Baroness Carnegy of Lour
The noble Baroness knows a great deal about such matters but she has forgotten that the procedures of this Parliament include pre-legislative scrutiny. It seems to me that the noble Earl has also forgotten that, and I am not sure that the Minister had not forgotten it. Surely, the Royal Society for the Protection of Birds, of which the noble Baroness has been such a distinguished office-bearer, will have a tremendous opportunity to influence legislation in 1358 Scotland through pre-legislative scrutiny. I believe I am right that that is where such bodies will say to the Scots parliament that a Bill needs to contain this, this and this element. Likewise, in respect of the convention on the rights of the child there are groups in Scotland which are already very assiduous in watching what the Westminster Parliament does. They will watch the Scots parliament. At that stage, before legislation comes to the Scots parliament, they will intervene. They will be good at it and look forward to it. That is the great merit of the system.
I do not understand why the noble Lord talks in terms of what should happen when the Bill is presented to the parliament.
§ The Earl of Mar and Kellie
I thank Members of the Committee for their support, wherever it came from. It is interesting to see how those noble Lords who sit on my left are already becoming the guardians of the procedures of the Scottish parliament.
I am certain that, whenever legislation is introduced, where it will have a harsh impact it will be pounced upon by the opposition in the parliament. We are discovering that the nature of opposition in the Scottish parliament will not just be concerned with the usual test of whether legislation will work—that is, whether it is seaworthy—but will also involve close scrutiny of whether it will contravene other legislation.
This was a probing amendment and therefore I should withdraw it at this moment.
§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)
Is it your Lordships' pleasure that the amendment be withdrawn?
§ On Question, amendment negatived.
§ Lord Mackay of Drumadoon moved Amendment No. 231:
§ Page 15, line 34, at end insert (", and shall at the same time secure that a copy of the bill is transmitted to both Houses of Parliament").
§ The noble and learned Lord said: In speaking to this amendment, I wish briefly to speak to Amendment No. 233. The amendments provide, first, that when a member of the Scottish executive is on the point of introducing a Bill to the parliament and issues a statement of the nature we have already been discussing under Clause 30, he shall at the same time secure that a copy of the Bill is transmitted to both Houses of this Parliament.
§ Secondly, we propose as an amendment to Clause 31, under subsection (1), that in reaching his decision as to whether or not a Bill should be introduced to the parliament, the presiding officer would be entitled to take account of any representations he received from either House of this Parliament.
§ The suggestions incorporated in the two amendments are put forward in the interests of promoting good relations between the Scottish parliament on the one hand and this Parliament on the other. One hopes that it will be possible for the Scottish executive and the 1359 United Kingdom Government to keep in good contact, whether at ministerial level or at official level through working parties of officials. The civil servants, after all, will be members of the same Home Civil Service and, whether or not concordats exist and cover the matters under discussion, it is to be anticipated that at official level there will be good consultation at the pre-legislative stage. One imagines that drafts of Bills, or certain parts of them, to be presented to the Scottish parliament will be widely circulated among members of the Scottish executive and that there will possibly be consultation upon them with officials and Ministers of the United Kingdom Government.
§ A different situation applies to parliamentary bodies. What happens in this Parliament will be of interest to members of the Scottish parliament and vice versa. The purpose of the first amendment is therefore to ensure that, as a matter of courtesy, just as in this Parliament numerous documents are presented every day, recorded in the Minutes of proceedings and are available for Members to consult if they are interested, the same procedure should apply to Bills of the Scottish parliament before the presiding officer decides whether they should be introduced.
§ Inevitably, from time to time, views may be expressed. It will be for this House and another place to decide how they will respond to Scottish legislation. They may not wish to comment in some instances, but there may be others where they may feel it would be of value for a committee to examine the legislation and communicate its views. That is not in the sense of seeking to interfere, but to inform the members of the Scottish parliament what views are held.
§ These amendments touch on an important innovation which arises in relation to the Scottish parliament; that is, that the presiding officer—namely, the speaker—will be in a position to refuse to introduce a Bill to the parliament. Indeed, the standing orders require that it should not be introduced if the presiding officer is of the view that the Bill or any provision of it would not be within the legislative competence of the parliament.
§ This is a novel power. It may be interesting for the Committee to hear from the Minister the reasoning that lies behind it. It gives rise to a number of interesting legal questions. If the presiding officer decides not to allow a Bill to be introduced, would anyone have the legal right to challenge that decision? If so, whom? Would it be competent to challenge that in a court? There is a reverse side to those questions. If it was anticipated that the presiding officer was going to introduce a Bill to the Scottish parliament, having formed the view that it would be within its legislative competence, would anyone have the right to challenge such a decision by going to the court and seeking at that stage a declarator from the court that, ex facie the print of the Bill, the Bill lay outwith the legislative competence of the parliament? If such an argument could be successfully advanced, would it be open to the court in Scotland to grant an interdict against the parliament considering the terms of the Bill or some amendment to it?1360
§ These are real, live questions which I hope the Committee, in the fullness of time, will be persuaded should not be allowed to arise. A later amendment will address the whole issue of giving the Scottish parliament the privilege which accords to this Parliament. But as we touch for the first time on the role of the presiding officer in these matters, it may be helpful for the Minister to indicate what is the Government's thinking on them. I beg to move.
§ 4 p.m.
§ Lord Steel of Aikwood
In the latter stages of his remarks, the noble and learned Lord, Lord Mackay of Drumadoon, was straying on to the next group of amendments. However, I want to deal only with Amendments Nos. 231 and 233 and to indicate that I and my colleagues are strongly opposed to them.
In sum, the amendments seem to be saying that, when the Scottish parliament is established, it must hang on to nanny's hand and that nanny must be able to say, "Go and find out what little Johnny is doing and tell him to stop it". That appears to be the basic thinking behind the amendments.
The Scottish parliament must be free-standing. Once it comes into being, it should not expect to be second-guessed the whole time by the Westminster Parliament. To suggest that by an Act of this Parliament the Scottish parliament should be required to send any Bills to the headmaster's study before it can consider them, is entirely out of keeping with the spirit of the Bill. We are strongly opposed to the amendments.
§ Lord Gray of Contin
I take issue with the noble Lord, Lord Steel of Aikwood. I do not believe that that is the purpose behind the amendment. I support my noble and learned friend Lord Mackay of Drumadoon.
We must remember that we are dealing with a completely new parliament which will operate in a completely different way. It will be a single chamber parliament; there will not be anyone at a second stage able to pull back anything that it does wrong. What it finally decides will be there for all time.
Whatever those of us who spoke against the Bill on Second Reading may feel about the principle of a Scottish parliament, that stage has passed. We are all now united to try and produce legislation which will make a Scottish parliament as workable as possible. Anything that we can do to prevent a Scottish parliament from getting itself into trouble should be applauded.
I do not take the view that this amendment necessarily makes the Scottish parliament subservient to this Parliament in any definite way; it is a co-operative measure. None of us knows what the pre-legislative arrangements will be and they could vary from government to government. For example, we do not know whether every Scottish Bill, before it ever reaches the Scottish parliament, will be canvassed for comment among United Kingdom Ministries. At the present time, when a department has legislative proposals, other departments are given the opportunity of commenting upon them. Whether that will be the way in which the new Scottish parliament will work, nobody knows.
1361 Therefore, the amendment would be, in a sense, a safeguard so that, before the Scottish parliament embarked upon something which might be quite radical and new, other departments would be aware of it. Let us not forget one of the points with which I am sure the noble Lord, Lord Steel, would heartily agree. The Scottish parliament is still going to be operating within the United Kingdom. It will not be an independent parliament and therefore, if it is within the United Kingdom, surely it is right that other departments within the United Kingdom should be allowed to comment upon it and that Members of both Chambers should be kept fully informed as to what it proposes. There will then be no danger of it doing anything that will put the Union at risk.
I support my noble friend Lord Gray of Contin and wish to add one or two points to this rather important discussion.
It is essential that the arrangements that we make under the Bill for the proceedings of the new Scottish parliament should avoid delays and uncertainties. If subsection (2) remains and the parliament has to debate whether or not a decision of the presiding officer is to be accepted, such a debate could take up a vast amount of time, be extremely controversial and not help at all.
The presiding officer in the new parliament will be analogous to the Speaker of the House of Commons. Those of us who served in the House of Commons remember well that when the Speaker made rulings, the House accepted them. It is important that the presiding officer of the new Scottish parliament should be a person with a reputation for independence and one who has the ability to command authority. To have his or her rulings challenged in this way would cause uncertainty and delay and should be avoided.
§ Lord Mackie of Benshie
Perhaps I may quickly read Clause 31. It states:Standing orders shall, subject to subsection (2), ensure that a Bill is not introduced in the Parliament if the Presiding Officer decides that the Bill or any provision of the Bill would not be within the legislative competence of the Parliament".Presumably the presiding officer has the benefit of advice from lawyers and would decide properly. The amendments propose extra nannying measures and there are plenty of those on the face of the Bill right now.
§ Lord Hamilton of Dalzell
The thought passes through my mind that part of the legislative process is the manifesto. What will happen when legislation comes forward as a result of a manifesto commitment and is not found to be within the competence of the parliament?
§ The Lord Advocate (Lord Hardie)
In relation to Amendments Nos. 231 and 233, it appears that the noble and learned Lord, Lord Mackay of Drumadoon, and other Members of the Committee who spoke in support of him—particularly the noble Lord, Lord Gray of Contin—are trying to create an opportunity for the Westminster Parliament to become involved in the 1362 legislative process of the Scottish parliament. They seek to impose a duty on responsible Scottish ministers to send to both Houses of the United Kingdom Parliament a copy of any Bill which is to be introduced into the Scottish parliament.
It is not clear how either House of Parliament would consider a draft Bill before it was even introduced into the Scottish parliament. The second amendment gives the United Kingdom Parliament the chance to make representations to the presiding officer about the legislative competence of the Scottish parliament's proceedings on a particular piece of legislation, with a view to persuading the presiding officer not to introduce the Bill. The second amendment puts in the words, after "decides":either at his own hand"—so the presiding officer can make up his own mind—or following representations from either House of Parliament".I agree wholeheartedly with the noble and learned Lord, Lord Mackay of Drumadoon. It is essential that there should be good relations between the Scottish parliament and the Westminster Parliament at official, ministerial and executive levels, and, one hopes, at member level. As the noble and learned Lord pointed out, the civil servants who will service the Scottish executive and the Scottish parliament are part of the United Kingdom Civil Service. It is inconceivable that there will not be good relations at official level between the civil servants of Scotland and the civil servants serving the United Kingdom Parliament. It is envisaged that there will be an interchange; and that civil servants will move between one jurisdiction and the other to maintain co-operation and understanding between them. I am confident that at their level Ministers will keep each other advised of what is happening and what they are proposing.
I have no doubt that there will be informal arrangements to allow Bills to be considered. Equally, if the Scottish parliament wished to provide copies of its Bills to the United Kingdom Parliament on a formal basis that would undoubtedly be within its competence and would happen. I anticipate, whatever the politicians may decide, that civil servants will make Bills available to their counterparts on an informal basis, as they are drafted, and explain what is happening north of the Border so that civil servants south of the Border can consider what is being proposed.
§ Lord Torphichen
If a civil servant gives away the contents of a Bill a little too soon, that is a leak. There is a fine line between keeping people informed and going through the normal channels of providing information. It is a very difficult area.
§ 4.15 p.m.
§ Lord Hardie
I do not accept that it is a difficult area. If we have got to the stage of a Bill having been prepared with a view to its being introduced, there is no question of it being seen as a leak to provide a copy of the Bill to civil servants in London for their consideration and any input that they wish to make from their own departments.
1363 From my comments so far the Committee will not be surprised to hear that we do not accept these amendments. We share the views of the noble Lord, Lord Steel of Aikwood. We are apprehensive that by allowing these amendments there would be accusations, albeit unjustified, that the United Kingdom Parliament was trying to interfere in the internal workings of the Scottish parliament. As the noble Lord, Lord Renton, said, the position of the presiding officer or Speaker is a special one. All parliaments are sensitive about the independence of their Speaker or presiding officer, whatever you wish to call him or her. The Scottish parliament will be no different. It will be jealous about the independence and the position of its presiding officer.
These amendments could well be presented as giving an opportunity to the United Kingdom Parliament to exercise undue influence over the presiding officer. I am sure that that is not the intention of the noble and learned Lord but that may well be how it is viewed by others. We must allow the Scottish parliament to enact its legislation without interference by the United Kingdom Parliament. It would not be appropriate for Westminster to have a role in formally commenting on the vires of a Bill before it is introduced or considered by the Scottish parliament. It will be for the Scottish parliament to give careful scrutiny to any Bill. Members of this House and another place should not attempt to prejudge the outcome of the deliberations of the Scottish parliament.
The Bill already provides a scheme for the resolution of disputes about the competence of Scottish legislation. Once the Bill has been passed by the parliament the Lord Advocate and Law Officers of the United Kingdom Government can refer questions about the competence of an Act to the Judicial Committee of the Privy Council.
The noble and learned Lord raised the question of who will challenge a decision of the presiding officer. That is provided for in subsection (2) of Clause 31. It states specifically:Standing orders may provide for the Parliament to overrule any decision of the Presiding Officer".So the parliament can challenge the decisions of the presiding officer. We will come to that in the next set of amendments. That is one way of challenging such a decision.
As to judicial review, I find it difficult to envisage who would have a title to challenge the presiding officer. In any event, as I indicated to the noble and learned Lord, Lord Hope of Craighead, on a previous occasion, the whole question will be considered.
If the Law Officers take the matter to the Judicial Committee of the Privy Council the Bill cannot be submitted for Royal Assent. Even if it gets through that and becomes law there is another provision. Clause 91 and Schedule 6 enable the Law Officers of the United Kingdom and of the Scottish executive to challenge an Act of the Scottish parliament as being outwith its competence.
I hope we all agree that after devolution it will be important for the parliaments to keep in touch with each other. Legislative provisions which could be presented 1364 as this Parliament interfering in the legislative process in Scotland, or interfering in the independence of the presiding officer, should not be accepted. They are not required or desirable. I hope the noble and learned Lord will withdraw the amendment.
§ Baroness Carnegy of Lour
Can the noble and learned Lord answer one question that concerns me? He said that during the drafting of a Bill civil servants of the Scottish parliament might well be discussing points which related to the drafting of the Bill with other civil servants in the United Kingdom. The Bill says somewhere that civil servants in the Scottish Office are part of the United Kingdom Civil Service. Would it be possible for the members of the Scottish executive or the presiding officer to instruct Scottish Office civil servants not to consult United Kingdom department civil servants?
§ Lord Hardie
The simple answer to that question is yes. It would be possible for the executive to give instructions to civil servants not to provide information. However, I hope that we will not reach that stage in our relations between the two parliaments.
§ Lord Fraser of Carmyllie
I am grateful to the Lord Advocate for a number of the points that he has made, but I am a little puzzled by the basic approach that has been taken to competence in relation to this Parliament. I hope that the noble Lord, Lord Steel, appreciates that none of us who is concerned about this has the least intention of trying to introduce a further stage for Scottish legislation which would necessarily bring some part of that legislative process to Westminster. At the very most, we want to ensure—this seems eminently sensible if there is even the risk of challenge as to competence—that those who are engaged in these matters at Westminster should have such legislation drawn to their attention.
As the noble and learned Lord will appreciate from Clause 32, the Advocate General—I understand that he will be a Member of this Parliament, in this House or in another place—would have the responsibility to challenge in certain circumstances. The Bill provides for that at a later stage. However, it seems to me to be appropriate that at the earliest possible stage, if a Law Officer of this Parliament is to mount a challenge—be that the Advocate General or the Attorney-General—he should be aware of that and be able to make his argument about the Bill's incompetence at an early stage rather than having to wait for the whole Bill to proceed through all its stages in that parliament. That seems to me to be a fairly simple and fundamental way to approach this matter.
The most interesting thing that the noble and learned Lord said was that he could not imagine anyone having a title to raise legal proceedings by way of judicial review in respect of the legislative competence of this Parliament. I agree with him that it might be difficult to imagine that, but I would like to be reassured as to whether he is offering the view that nobody, in any circumstances, is entitled to raise issues of legislative competence before the courts other than the Law Officers to whom the legislation refers.
1365 What troubles me about the clause is that, first, it is for the presiding officer to reach a view as to whether something is within the parliament's legislative competence. He offers a view; he may or may not be right. We must assume that in certain circumstances he may be wrong. Clause 31(2) then states that the standing orders provide for the parliament itself to override that decision.
Perhaps I may outline the circumstance that troubles me. Let us assume that I am a member of that parliament. I am in the minority. I have failed to get the majority in the parliament to overrule a decision of the presiding officer, but it is still my view that the Bill is beyond the legislative competence of the parliament. At that point, would it be open to me to take the matter to the courts and to have the issue tested at that stage? If I have missed something and the answer is no, and if at that point there is no opportunity for an individual or a group of persons who might be affected to raise the issue, it would be extremely helpful to have that spelled out.
If I have a concern about the totality of the provisions it is that I fear that there is a set of ambiguities that do not reveal—certainly, they do not reveal to me—exactly what the position would be. That seems to me to be a much more important issue to address rather than the essentially ancillary points about how such issues are brought to the attention of Members of the Westminster Parliament, members of the Scottish parliament or, indeed, informed citizens in Scotland or elsewhere. Until I have a clearer understanding of that, I believe that we face the risk of paddling around in confusion and failing to make much progress.
§ Lord Torphichen
Perhaps I may answer that point so far as I can. The Government have set their system fairly firmly in favour of review after a possible non-conforming Act has passed through the Scottish parliament. I am sure that it would be much easier to rule out an offending clause or to modify the intention slightly at an early stage rather than wait until that Bill has passed through the Scottish parliament when such phrases as, "It is now the settled will of the Scottish people", will be bandied around.
The noble Lord, Lord Steel of Aikwood, said that this is making another "nannying" rule for the Scottish parliament. The whole of this Bill is a set of rules, established by this Parliament, relating to the future parliament in Scotland. One more or one less rule does not make for nannying. The whole Bill is a nannying process. Given that sooner or later somebody will wish to test the limits of what can or cannot be done, I believe that this is the point at which we can choose between not being independent or going for full independence—and the Scottish National Party will make use of this provision over the years until independence is brought about.
§ Lord Mackay of Drumadoon
We have had an interesting debate on a topic which I fully confess has strayed slightly further than the scope of my two amendments. Perhaps I may deal first with the reply 1366 which the Lord Advocate gave on the issue of who might have the right to challenge a decision by the presiding officer on whether to introduce a Bill, the premise for such a challenge being that the individual concerned took a different view of the legislative competence of that Bill from that taken by the presiding officer. It may, indeed, be difficult to identify somebody who has a title and interest to challenge, but one of the grounds upon which an Act of the Scottish parliament can be challenged is that convention rights were infringed by either the provisions of one part of that Act or by the whole Act. If legal challenge is competent at that stage, I believe that it is not impossible to envisage somebody qualifying a title and an interest. Therefore, there may be force in making it clear on the face of the Bill either at this stage or later whether legal challenge should be open to anybody.
Perhaps I may make my own position on that quite clear: I do not think that it would be prudent for such a legal challenge to be open. It should be a matter between the presiding officer on the one hand and the parliament on the other hand—that is, if subsection (2) is to remain part of the Bill.
On the more general issue, the noble and learned Lord the Lord Advocate was kind enough to acknowledge that it was no part of my argument to try to suggest that this Parliament had some form of supervisory or nannying role over the activities of the Scottish parliament. However, the Scottish parliament will have to learn that a variety of people will be interested in its affairs, in the Bills that it is considering and in the Acts of Parliament that it is passing. Those persons will include not only individual Members of your Lordships' House and individual Members of another place, but quite possibly also the Houses of this Parliament themselves. Therefore, it is not impossible that in the fullness of time, whether as a consequence of a debate in this House or the deliberations of a committee, a decision will be taken to convey to the Scottish parliament the views of, say, your Lordships' House.
Only a few days ago we debated whether to present an humble Address to Her Majesty on a matter which was causing considerable concern to a number of Lordships. If views come from here, one likes to hope that the Scottish parliament will not behave as if it is a child being talked to, or talked at, by a nanny. When tabling these amendments, I did not for one moment think that that would be appropriate. I thought it appropriate to set up some form for communication between the two parliaments on the Bills that they will be considering.
We have had a useful debate. I do not intend to press any of these amendments.
§ 4.30 p.m.
§ Lord Hardie
At this stage perhaps I should deal with some of the points raised in the debate. I am advised that there will be concordats, about which we have heard already, to ensure that prospective legislation in both Scotland and Westminster is drawn to the attention of the other side. That will enable points on vires to be raised early, as the noble and learned Lord, Lord Fraser of Carmyllie, was anxious to secure.
1367 As to title and interest, I apologise if I have not been clear. I was referring to title and interest to challenge the decision of the presiding officer, not to the whole question of the competence of the parliament. There is provision in the Bill for the Law Officers to challenge the title and interest at pre-Assent stage, and in any proceedings other people can challenge the competence of a Scottish Bill. The various Law Officers can intervene at that stage.
§ Lord Fraser of Carmyllie
I readily acknowledge that the draftsman of the Bill has put together an extremely elaborate and sophisticated set of arrangements for various Law Officers to intervene if the parliament acts beyond its legislative competence. That ties in elegantly with a number of provisions to be found in the Government of Wales Bill. All of that seems to be well settled. But what concerns me is that the whole issue of legislative competence has been approached too singularly from the point of view of the Scottish government, the Westminster Government and the Law Officers. What remains unclear to me is what would happen if an individual regards his human rights as being breached by proposed legislation. Does he have the right to go to the courts in Scotland at that stage and attempt, perhaps by way of interdict, to prevent the legislation proceeding? That is an absolutely fundamental question to which we must have an answer.
§ Lord Hardie
The noble and learned Lord may recall that in answer to a point raised by the noble and learned Lord, Lord Hope of Craighead, at an earlier stage of the proceedings in relation to interdict I said that the Government were considering the matter and would come back with either a statement or something else.
§ Lord Fraser of Carmyllie
I am very grateful to the noble and learned Lord. We should like to see that. If it is of any help to the Government, both I and my noble and learned friend Lord Mackay believe it is desirable, if a solution is suggested, perhaps to prevent individuals at that early stage from interrupting the legislative process, without obviously excluding their right at a later stage to come before the courts and challenge what is proposed.
§ Lord Rodger of Earlsferry
When consideration is given to this matter I presume that it will include the terms of Clause 6 of the Human Rights Bill which is now being considered by another place. Clause 6(1) provides that it is unlawful for a public authority to act in a way that is incompatible with a convention right. I presume that the Scottish parliament and the Scottish executive are public authorities for the purposes of Clause 6(1) of that Bill. I join with others in believing that in that situation it is necessary to consider very carefully the position at the interim stage and whether or not there is a remedy open to an individual, who would be a victim within the human rights legislation, if he could put himself into that position, or whatever other case might be appropriate, to challenge the legislation at that stage—in other words, while the legislation is going through the House—on the basis that it was incompatible with human rights and 1368 therefore was unlawful. It may be that in due course we shall see some alignment of the Scotland Bill with the Human Rights Bill.
We have been promised this from time to time but it has not yet come to pass. It will be interesting at that stage to see exactly how much scope there is for such a challenge to be made. Obviously, this is a matter of great importance from the point of view of the courts and the parliament and all those involved in the workings of it.
§ Lord Mackay of Drumadoon
I am quite sure that the noble and learned Lord the Lord Advocate will wish to deal with this matter in writing. I do not put any further questions at this stage. I am sure he readily accepts that there is a genuine concern as to what role, if any, the courts will play at this stage.
I should like to seek clarification on one matter. In his most recent intervention the noble and learned Lord spoke about concordats on either side. I am not sure whether it is proposed that there should be any concordats involving either this House or both Houses of Parliament and/or the Scottish parliament itself. As I understand it, the concordats are to be between Government Ministers and departments on the one side and the executive on the other. If so, it may well be that concordats would not formally cover the transmission of Bills or proceedings of this Parliament. That is a matter that may be reflected upon before we debate concordats in a day or two. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 232 not moved.]
§ Clause 30 agreed to.
§ Clause 31 [Scrutiny of Bills by the Presiding Officer]:
§ [Amendment No. 233 not moved.]
§ The Earl of Mar and Kellie moved Amendment No. 233A:
§ Page 15, line 42, leave out subsection (2).
§ The noble Earl said: Amendment No. 233A has the purpose of removing subsection (2) of Clause 31 and in so doing averting the humiliation and resignation of the presiding officer. The Bill allows the Scottish parliament to overrule the presiding officer on a matter of legislative competence concerning a Bill that is about to be introduced. We have had a good deal of discussion about this. I do not see why the power to overrule the presiding officer should be in the Bill at all. In a fixed term parliament the presiding officer has a different and greater statutory role than has evolved in this undocumented Westminster Parliament. I do not see how the presiding officer acting on professional advice and support can be overruled by the parliament and continue in office. A vote based on Clause 31(2) will be a vote of no confidence in the presiding officer. The mere calling of such a vote will weaken his authority.
§ There is a further concern about the significance of such an overruling of the presiding officer in the event of later judicial proceedings. A court is likely to be asked to decide upon the significance of such a ruling. 1369 Any measure that has attracted Clause 31(2) action will be seen as a highly marginal issue in terms of its vires. I believe that this measure is outwith the bounds of a fixed term parliament which is itself a creature of statute. I beg to move.
I warmly support this amendment. When discussing Amendment No. 231 I referred to the important part played by the presiding officer. I was very much fortified by the confirmation provided by the noble and learned Lord the Lord Advocate that the position of the presiding officer would be analogous to that of the Speaker of another place. I believe that it would be chaotic if the decision of the presiding officer then had to be debated in the parliament. It would perhaps be a very long debate with an uncertain result. That would seriously diminish the authority of the presiding officer.
I hope that the Committee will agree on the need to leave out subsection (2). But with this amendment we are also discussing Amendment No. 234 in the names of my noble and learned friend Lord Mackay of Drumadoon and my noble friend Lord Mackay of Ardbrecknish. According to that amendment,A decision made by the Presiding Officer under subsection (1) shall not be capable of being overruled by the Parliament".It is arguable that from a drafting point of view that is unnecessary, but I believe it would be desirable to have it in for the removal of doubt. I have great faith in the Lord Advocate, but I hope he will keep an open mind on this matter. I am very worried about it and, as I mentioned when discussing the earlier amendment, we must try to avoid uncertainty in the provisions we put forward for establishing this new parliament. We must avoid uncertainty and delay. I believe that subsection (2) of Clause 31 is asking for trouble.
§ Lord Steel of Aikwood
I support my noble friend Lord Mar and Kellie in his amendment and I very much agree with what the noble Lord, Lord Renton, has just said. The presiding officer—a horrible name, to which we will come later—in the Scottish parliament will have, if I may say so with respect to the noble Lord, Lord Renton, an even more authoritative position than the Speaker of the House of Commons, because this is a whole area with which the Speaker of the House of Commons does not deal. It is important that we get it right.
As a layman, I must confess that I was a little disturbed by the tone of the previous discussion among so many distinguished noble and learned Lords who seemed to be imagining a process, which I find very difficult to contemplate, where legislation in embryo could be challenged in the courts. I am not aware that such a procedure has ever existed. It is highly undesirable.
Clearly, responsibility should lie with the presiding officer to declare whether something is or is not ultra vires. He will not do that off the top of his head. Presumably, he will take into account all the representations he has received; from his expert advisers within the parliament; from the Civil Service; and, no doubt, from Her Majesty's Government at Westminster. 1370 Anyone who cares to give advice can register it. He has that responsibility independent of the executive. That is the important thing. Parliament must trust him. One cannot have a situation where the parliament says, "We have decided to overturn your judgment today, but expect you to remain in office tomorrow". It seems to me that is an inconceivable position.
Moreover, I should like to ask a question of the Government Front Bench. In Clause 31(1) there are these words:if the Presiding Officer decides that the Bill or any provision of the Bill would not be within the legislative competence of the Parliament".I assume from this that the presiding officer would have the job also of declaring whether any amendment that might come forward to a Bill was ultra vires. Furthermore, I wonder whether, in the process of going through the proceedings of the parliament, something might not happen to render the Bill ultra vires. Going back to the previous discussion, does that mean that someone could make a legal challenge at that stage? It seems to me an impossible position. Greater clarity is required here. I believe that we can at least make a start by removing subsection (2) of the clause.
§ Lord Fraser of Carmyllie
The noble Lord said that he found the previous discussion somewhat unedifying or alarming. Indeed so, and that is precisely why we have spent so much time seeking to have the matter clarified. In my view, the noble Earl is absolutely right in bringing forward this matter. I believe that the situation could become even more absurd. It may be that the presiding officer—whose title we shall certainly change before we get to the end of this Bill—will reach a view that what has been proposed is not within the legislative incompetence of the parliament. If he has reached such a view it would seem to me to be almost a matter of inevitability that the Lord Advocate would have reached the same view about the legislative incompetence of the matter.
It seems to me to set a new parliament off on a course that is really quite absurd if, as it begins to debate something, the presiding officer says, "I believe this to be legislatively incompetent" but the Lord Advocate has said, "You can carry on with this, but once it is all over I am going to challenge it." If we want to have a sensible, effective legislative process, it seems to me that the proposal to delete subsection (2) is eminently sensible. I would certainly also suggest that the proposal of my noble and learned friend Lord Mackay for a new amendment to put the matter beyond doubt is equally desirable.
§ 4.45 p.m.
§ Lord Selkirk of Douglas
Members of the Committee who have just spoken have put forward extremely powerful arguments which the Government ignore at their peril. It is necessary for the Lord Advocate to state what precedents there are for Speakers or presiding officers—not just in this country but throughout the world—having powers to decide over issues of legislative competence. I do not believe that Speakers generally have those powers. In the House of 1371 Commons the Speaker has the power to specify a money Bill, but certainly does not have power in areas of legislative competence. I believe that Clause 31(2) is exceedingly unfortunate because it would diminish the standing of the presiding officer. It would make the position of the presiding officer infinitely more vulnerable than the position of the Speaker of the House of Commons and it could very readily bring the presiding officer into direct conflict with both the executive and the parliament. I do not believe that should be the role of the presiding officer. I hope that it will be the role of the Lord Advocate to specify the legislative competence of Bills.
Surely it should be inconceivable for any Bill to be brought forward by any regime or government in Scotland if it is not within legal competence. I do not imagine for a single moment that most presiding officers in Scotland will have the legislative ability of the present Lord Advocate or, indeed, of virtually any Lord Advocate; at least, it would be extremely unusual if that were to be the situation. It is exceedingly likely that the presiding officer would, in reality, follow the advice given by the Lord Advocate because he or she would almost certainly lack the same qualifications; and, of course, if the Lord Advocate were to be wrong, then it would be for the Judicial Committee of the Privy Council to sort that out.
The possibility of overruling the presiding officer could not arise in the same way in the House of Commons. This provision puts the presiding officer in a desperately vulnerable position. The presiding officer should not be in such a weak position. He or she should not be brought into conflict with the executive and should not be brought into conflict with the parliament. It is a basic instability in the Bill and it is one which I believe cannot endure.
§ Lord Desai
Perhaps I may briefly say that the House of Commons or the Westminster Parliament is not a good model for considering this question because there are no limits on its competence that it ever admits. Therefore, the question does not arise for the Westminster Parliament or for the Speaker. However, where there are written constitutions, especially where there is a federation, although we are not here discussing a federation, battles like this frequently have to be settled. This is not an unknown thing.
I would modestly suggest that we should not confuse the role of the Lord Advocate with that of the presiding officer. These are two different branches of government. I believe that it is quite likely—and why not?—that they would disagree. In that case the matter would be settled by the Judicial Committee of the Privy Council. This will be an interesting experiment. This is not Westminster politics; these are different politics; and why not?
§ Lord Rodger of Earlsferry
Where the presiding officer's view has been overridden, is he or she nonetheless under a duty to submit the Bill for Royal Assent? Subsection (3) is a curious provision. It simply says:Standing Orders shall ensure that the Presiding Officer".1372 It sounds as though it might be goodness knows who, if it were not provided that it were the presiding officer who submits the Bill for Royal Assent. Is that saying also that he is under a duty to present the Bill for Royal Assent? Does that duty apply—this is really where the question comes up—even if he remains of the view that it would be outwith the power of the parliament to pass the Bill—for example, that it would be unlawful in terms of the human rights legislation?
§ Lord Mackay of Drumadoon
Perhaps I may briefly mention the amendment which is grouped with Amendment No. 233A and indicate my support for virtually everything that has been said. Perhaps I should make it clear to the noble Lord, Lord Steel of Aikwood, if my noble and learned friend Lord Fraser of Carmyllie has not already done so, that, as lawyers, we believe this is highly undesirable. We may be raising all kinds of issues but we think it is undesirable that the courts should be involved at this stage.
It is important to bear in mind that however the new parliament goes about its business—I am not in any way seeking to be cynical—if the consensus approach does work on the ground at Holyrood, when issues come before the court I would be very surprised indeed if consensus comes with it. The party acting for individual parties will seek to have the legislation struck down or construed in a way that benefits the interests of their clients. The matter will be raised at this and subsequent stages in the hope that it will assist the Committee to address the fundamental issue: the extent to which the courts should have a greater role in the affairs of Holyrood than they are permitted to have in your Lordships' House and another place.
My noble and learned friend Lord Fraser referred to the Lord Advocate having the same view as the presiding officer. We have to accept that the current drafting of Clause 31 admits the possibility of different views. One cannot imagine a member of the Scottish executive making the statement referred to in the previous subsection unless the Lord Advocate, if called upon to do so in the parliament, were prepared to defend it. Therefore there is a possibility of the presiding officer reaching a different view on a question of law—no doubt with the benefit of legal advice—from that reached by the Scottish executive and the Law Officers when framing the legislation.
In that event two courses seem open. First, the individual member promoting the Bill should consider whether a drafting amendment on his own initiative before the Bill is introduced might take account of the presiding officer's concerns. The second alternative would apply unless subsection (2) is left out: that members of the parliament, many of whom would not have access to legal advice, would be asked to vote on essentially a question of law against the view of the presiding officer backed by his own lawyers. The latter alternative would be highly undesirable and, as the noble Earl said, would tend to diminish the standing of the presiding officer. Therefore I hope that the noble and learned Lord the Lord Advocate or the Minister who is to reply will address the various concerns raised.
§ Lord Hardie
First, I agree entirely with the last comment of the noble and learned Lord, Lord Mackay of Drumadoon. It is conceivable that the Lord Advocate may take a different view from that of the presiding officer. Although I would anticipate that the presiding officer would take legal advice from his equivalent to the Speaker's counsel and would not act capriciously, it is possible that there could be a difference of opinion. Secondly, the presiding officer will consider all Bills that are being introduced into the parliament and not just government Bills. One may have a Back Bencher's Bill on which the presiding officer will take a view.
A noble Lord asked about the thinking behind this unusual power given to the presiding officer. It is not a power enjoyed by the Speaker in another place although the Speaker has certain powers in relation to a money Bill. But so far as I am aware, the Speaker in another place could not prevent a Bill being introduced into the House. The thinking underlying Clause 31 is to provide a first check so that if the presiding officer takes the view that something is ultra vires, he can say so. If that is accepted, it is an end of the matter. Again, one would hope that in the majority of, if not all, cases, it would be acceptable. However, one has to anticipate that the presiding officer may on a rare occasion get it wrong; and if he or she gets it wrong what happens? If no remedy is afforded to the parliament to overrule that decision, the presiding officer is acting effectively as the adjudicator and is almost usurping the ultimate function of the Judicial Committee of the Privy Council, the body given the task of adjudicating upon legislation.
If the presiding officer gets it wrong and subsection (2) is omitted, what alternative remedy is available to the parliament? I do not anticipate that any executive would act without the advice of its law officers. If the parliament, on advice, believes that the presiding officer has got it wrong, what is to be the remedy? If subsection (2) is deleted, there is no remedy.
§ Lord Hope of Craighead
I am grateful to the noble and learned Lord for giving way. A series of rhetorical questions have been asked. But it occurs to me that one should not entirely disregard the fact that the parliament is made up of individual members. One of the problems that may well arise is that a private member has an interest in a Bill which is then declared by the presiding officer to be outwith the legislative competence. If I were asked what his remedy is, my advice would be to seek a judicial review in the court of the presiding officer's decision. That takes us back precisely to the argument we discussed previously. The two provisions are very much interrelated on that aspect.
We should not ignore the fact that the individual private member may want to take those remedies in order to make progress on a Bill about which he feels strongly.
§ Lord Dixon-Smith
Before the noble and learned Lord resumes, we need to consider this issue the other way round. It is not just that the presiding officer may 1374 be wrong. As the clause is drafted, the presiding officer may be right but under subsection (2) none the less the parliament has the right to set his opinion aside. That seems to me exceedingly dangerous. If I am right, amendment must be required.
§ Lord Hardie
Perhaps I may deal with the noble Lord's point. Just as the presiding officer may be wrong on occasions, the executive or the parliament may be wrong in challenging his decision. The noble Lord is correct; the parliament could overrule that decision. However, if that were to happen, the protection is the entitlement of the Lord Advocate or the Attorney-General to challenge the legislative competence of the Bill and to make a reference prior to the Bill obtaining Royal Assent.
If the executive, having been involved in a decision of the majority of the parliament, overrules the presiding officer it is inconceivable that the Lord Advocate would be involved in that challenge. One imagines that the Lord Advocate would have advised the executive. But it is conceivable that the executive might be in a minority in deciding to overrule the decision of the presiding officer. If that were the case, the Lord Advocate undoubtedly would challenge the competence of the Bill at the appropriate stage.
However, if the executive were in the majority, it is inconceivable that the United Kingdom Law Officers would be unaware of that exercise and the Lord Advocate or the Attorney-General would take action in accordance with Clause 31(4). Therefore the fear that legislation which had overridden the correct view of the presiding officer would be passed without proper scrutiny is unjustified.
I should like to turn to the question relating to the effect on the standing of the Speaker. The noble Earl, Lord Mar and Kellie, stated that the presiding officer would be brought into conflict with the parliament or the Scottish executive. I do not necessarily share that view. The provision simply enables the parliament to allow a Bill to proceed in the knowledge that once it has passed through the various legislative stages, if there is any uncertainty about vires, the Bill can be referred to the Judicial Committee of the Privy Council. Therefore the parliament and the executive would be in no doubt that there could be a reference if the presiding officer took a considered view that it was ultra vires.
I feel that the presiding officer would command the respect of the parliament and his decision on legislative competence would usually be upheld and respected. However, as I previously indicated, it is important to make provision for the exception.
§ 5 p.m.
Will the noble and learned Lord give way? I regret to say that the noble and learned Lord is not right. Subsection (2) is perfectly plain in its statement that parliament may overrule any decision of the presiding officer. In practice parliament may agree 1375 on most occasions but if it decides to overrule it may only do so after a vote, and it would be very unusual for a vote to be taken without a debate having taken place. For the presiding officer to be the subject of a debate in the Chamber, frankly, to divert attention away from that situation to the possibility of the matter ultimately being referred to the Judicial Committee avoids the difficulty that is certain to arise.
§ Lord Steel of Aikwood
Will the noble and learned Lord allow me to reply? The Bill allows the executive or one of the Law Officers to take the Bill to the Judicial Committee before it goes for Royal Assent on the grounds that it is ultra vires. That is a sensible provision. However, to refer the matter to the courts before then, even allowing for the suggestion made by the noble and learned Lord, Lord Hope, to challenge the decision of the presiding officer in the courts is highly undesirable, just as the reference in the Bill is undesirable.
The ultimate remedy of the Scottish parliament if the presiding officer mucks about and gets it totally wrong is to do what is done in another place; namely, to table a substantive motion of no confidence in the Speaker. That provision is very familiar. It is a remedy that can only be used once, but it does exist.
§ Lord Hardie
With respect to the noble Lord, Lord Steel of Aikwood, that would be taking a sledgehammer to crack a nut. Suppose that the presiding officer genuinely made a mistake. Would it be appropriate for the parliament to table a vote of no confidence and to have the presiding officer removed? It would be less severe for parliament to consider the matter and overrule the presiding officer in that situation. The protection the public has is that if parliament is wrong and the Speaker is right, then the ultimate adjudicator is the Judicial Committee of the Privy Council.
If the provision is not allowed to enable the presiding officer's decision to be reviewed, then, subject to the comments of the noble and learned Lord, Lord Hope of Craighead, the effect is that the ultimate arbiter of the competence of proposed legislation is the presiding officer rather than the Judicial Committee of the Privy Council. That is only subject to whether the executive or an aggrieved member has the right of judicial review of the decision of the presiding officer. As I indicated, this matter is being considered in detail.
The question of the executive judicially reviewing the presiding officer would undermine the presiding officer more than if parliament considered whether or not the presiding officer had got it right. To drag the presiding officer through the courts would be quite inappropriate. The noble Lord, Lord Steel, is nodding in agreement that it would be quite inappropriate. If that remedy were not available to the executive or to an aggrieved member, what would be the remedy where the presiding officer got it wrong and effectively prevented legislation from being considered?
§ Lord Steel of Aikwood
I am most grateful to the noble and learned Lord for giving way. The answer is that we are living in the real world of politics as well as law. If the presiding officer got it wrong on a Private Member's Bill it is open to that private Member to reintroduce the Bill in the next Session, having made a great row in public and in the press, through agitation, to amend two lines in it. The presiding officer would then get it right. We have to live in a practical world as well as a legal world.
§ Lord Fraser of Carmyllie
The noble and learned Lord the Lord Advocate is far too reasonable a man. He advanced his argument carefully on the basis that if anyone enters into a dispute about the limits of the legislative competence of this parliament, they do so in good faith. It is not impossible to envisage circumstances where the majority in the Scottish parliament when it is first established do not accept the limits placed on the legislative competence of the parliament and may take every opportunity to test it further. Having looked at the framework, they may appreciate that it would be a legally futile gesture to make because, sooner or later, the Judicial Committee of the Privy Council would knock it out. However, it is not difficult to envisage 18 months of political turmoil. A majority group, having overridden a presiding officer who had looked at the law, taken the best advice and reached a view, and a Lord Advocate, who had looked at the law and offered a view, could nevertheless spend a considerable time trying to establish that what fell within the legislative competence of the parliament was inadequate. It might wish to take the opportunity to spell that out. That seems to me to be the real role of politics which the noble Lord, Lord Steel of Aikwood, referred to. For those reasons we wish to have as precise and clear a set of arrangements as possible, allowing the least possible opportunity for mischief.
§ Lord Rodger of Earlsferry
Since the presiding officer will enjoy a very difficult and lonely role, will the Government consider giving him the kind of right that the Advocate General, the Lord Advocate and the Attorney-General are given in Clause 32(1) to refer the matter to the Judicial Committee? That might provide him with a back-up. I fully accept that 99 times out of 100 the Advocate General will take the point but it might bolster his standing when he is given the role of taking decisions on the competency of legislation if he too could refer the matter to the Privy Council at an appropriate stage.
§ The Earl of Mar and Kellie
Committees of this House do not normally take so long to discuss amendments that I put forward. The truth will always out! I have received a considerable amount of support for the amendment. I still believe that Clause 31(2) is unsustainable as regards the position of the presiding officer; that is, unless the provision is one of those quaint devices whereby one calls for a resignation or it is a means of introducing a vote of no confidence in the 1377 presiding officer. The noble and learned Lord the Lord Advocate has told us that that might well be a routine procedure and not a major and last-resort means of getting rid of an errant presiding officer.
I agree with my noble friend Lord Steel of Aikwood, about the opportunity to reintroduce a Bill believed to be ultra vires after some discussion with the presiding officer and his advisers. I believe that we should pursue the amendment and therefore I wish to test the opinion of the Committee.
§ 5.11 p.m.
§ On Question, Whether the said amendment (No. 233A) shall be agreed to?
§ Their Lordships divided: Contents, 136; Not-Contents, 119.1379
|Division No. 1|
|Ackner, L.||Hamilton of Dalzell, L.|
|Addington, L.||Hampton, L.|
|Ailsa, M.||Hamwee, B.|
|Aldington, L.||Harding of Petherton, L.|
|Alexander of Tunis, E.||Harmsworth, L.|
|Allenby of Megiddo, V.||Harris of Greenwich, L.|
|Alport, L.||Hayhoe, L.|
|Alton of Liverpool, L.||Holderness, L.|
|Ampthill, L.||HolmPatrick, L.|
|Balfour, E.||Home, E.|
|Beaumont of Whitley, L.||Hooson, L.|
|Beloff, L.||Hope of Craighead, L.|
|Blatch, B.||Howe, E.|
|Boardman, L.||Howell of Guildford, L.|
|Bowness, L.||Hylton, L.|
|Brabazon of Tara, L.||Inchyra, L.|
|Braine of Wheatley, L.||Jenkins of Hillhead, L.|
|Broadbridge, L.||Jopling, L.|
|Brougham and Vaux, L.||Kinnoull, E.|
|Cadman, L.||Kintore, E.|
|Calverley, L.||Lang of Monkton, L.|
|Carlisle, E.||Lauderdale, E.|
|Carlisle of Bucklow, L.||Linklater of Butterstone, B.|
|Carnegy of Lour, B.||Long, V.|
|Cavendish of Furness, L.||Lucas, L.|
|Chalker of Wallasey, B.||Lucas of Chilworth, L.|
|Clanwilliam, E.||Ludford, B.|
|Clark of Kempston, L.||Lyell, L.|
|Clement-Jones, L.||McColl of Dulwich, L.|
|Cope of Berkeley, L.||Mackay of Ardbrecknish, L.|
|Craig of Radley, L.||Mackay of Drumadoon, L.|
|Crickhowell, L.||Mackie of Benshie, L.|
|Dacre of Glanton, L.||McNair, L.|
|Davidson, V.||McNally, L.|
|Denbigh, E.||Mar and Kellie, E. [Teller.]|
|Denham, L.||Marlesford, L.|
|Denton of Wakefield, B.||Mayhew of Twysden, L.|
|Dholakia, L.||Mersey, V.|
|Dixon-Smith, L.||Middleton, L.|
|Dundonald, E.||Miller of Hendon, B.|
|Elibank, L.||Milverton, L.|
|Ellenborough, L.||Minto, E.|
|Falkland, V.||Monckton of Brenchley, V.|
|Fookes, B.||Mowbray and Stourton, L.|
|Fraser of Carmyllie, L.||Munster, E.|
|Garel-Jones, L.||Naseby, L.|
|Glasgow, E.||Nelson, E.|
|Gray of Contin, L.||Newall, L.|
|Grey, E.||Nicholson of Winterbourne, B.|
|Noel-Buxton, L.||Sharpies, B.|
|O'Cathain, B.||Skelmersdale, L.|
|Park of Monmouth, B.||Steel of Aikwood, L.|
|Pearson of Rannoch, L.||Stockton, E.|
|Pender, L.||Stodart of Leaston, L.|
|Rankeillour, L.||Strathcarron, L.|
|Rawlings, B.||Swinfen, L.|
|Rees, L.||Taylor of Warwick, L.|
|Renton, L.||Thomas of Gresford, L. [Teller.]|
|Roberts of Conwy, L.||Thomson of Monifieth, L.|
|Rodger of Earlsferry, L.||Thurlow, L.|
|Rodgers of Quarry Bank, L.||Thurso, V.|
|Rowallan, L.||Tordoff, L.|
|Russell, E.||Torphichen, L.|
|Saltoun of Abernethy, Ly.||Wallace of Saltaire, L.|
|Sanderson of Bowden, L.||Weatherill, L.|
|Seccombe, B.||Wilcox, B.|
|Selkirk of Douglas, L.||Wise, L.|
|Sempill, L.||Wynford, L.|
|Alli, L.||Howie of Troon, L.|
|Amos, B.||Hoyle, L.|
|Archer of Sandwell, L.||Hughes, L.|
|Ashley of Stoke, L.||Hughes of Woodside, L.|
|Bach, L.||Hunt of Kings Heath, L.|
|Barnett, L.||Irvine of Lairg, L. [Lord Chancellor.]|
|Bassam of Brighton, L.|
|Berkeley, L.||Islwyn, L.|
|Blackstone, B.||Janner of Braunstone, L.|
|Blease, L.||Jay of Paddington, B.|
|Blyth, L.||Jeger, B.|
|Borrie, L.||Judd, L.|
|Brooke of Alverthorpe, L.||Kennedy of The Shaws, B.|
|Brooks of Tremorfa, L.||Kennet, L.|
|Bruce of Donington, L.||Kilbracken, L.|
|Burlison, L.||Kirkhill, L.|
|Callaghan of Cardiff, L.||Levy, L.|
|Carew, L.||Lockwood, B.|
|Carmichael of Kelvingrove, L.||Lofthouse of Pontefract, L.|
|Carter, L. [Teller.]||Lovell-Davis, L.|
|Castle of Blackburn, B.||McIntosh of Haringey, L. [Teller.]|
|Cledwyn of Penrhos, L.|
|Clinton-Davis, L.||Mackenzie of Framwellgate, L.|
|Currie of Marylebone, L.||Mallalieu, B.|
|David, B.||Mason of Barnsley, L.|
|Davies of Coity, L.||Merlyn-Rees, L.|
|Davies of Oldham, L.||Milner of Leeds, L.|
|Dean of Beswick, L.||Molloy, L.|
|Desai, L.||Monkswell, L.|
|Diamond, L.||Montague of Oxford, L.|
|Dixon, L.||Morris of Manchester, L.|
|Donoughue, L.||Murray of Epping Forest, L.|
|Dormand of Easington, L.||Nicol, B.|
|Dubs, L.||Orme, L.|
|Evans of Parkside, L.||Paul, L.|
|Ewing of Kirkford, L.||Pitkeathley, B.|
|Farrington of Ribbleton, B.||Ponsonby of Shulbrede, L.|
|Gallacher, L.||Prys-Davies, L.|
|Gilbert, L.||Puttnam, L.|
|Glenamara, L.||Ramsay of Cartvale, B.|
|Gordon of Strathblane, L.||Randall of St. Budeaux, L.|
|Goudie, B.||Rendell of Babergh, B.|
|Gould of Potternewton, B.||Roll of Ipsden, L.|
|Graham of Edmonton, L.||Serota, B.|
|Grantchester, L.||Sewel, L.|
|Grenfell, L.||Shepherd, L.|
|Hacking, L.||Shore of Stepney, L.|
|Hardie, L.||Simon, V.|
|Hardy of Wath, L.||Simon of Highbury, L.|
|Haskel, L.||Smith of Gilmorehill, B.|
|Hayman, B.||Stoddart of Swindon, L.|
|Hilton of Eggardon, B.||Stone of Blackheath, L.|
|Hogg of Cumbernauld, L.||Strabolgi, L.|
|Hollis of Heigham, B.||Symons of Vernham Dean, B.|
|Taylor of Blackburn, L.||Varley, L.|
|Taylor of Gryfe, L.||Walker of Doncaster, L.|
|Thomas of Macclesfield, L.||Wallace of Coslany, L.|
|Thornton, B.||Watson of Invergowrie, L.|
|Turner of Camden, B.||Williams of Elvel, L.|
|Uddin, B.||Williams of Mostyn, L.|
|Young of Old Scone, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 5.19 p.m.
§ Lord Mackay of Drumadoon moved Amendment No. 234:
§ Page 15, line 42, in place of the words last left out insert—
§ ("(2) A decision made by the Presiding Officer under subsection (1) shall not be capable of being overruled by the Parliament.").
§ On Question, amendment agreed to.
§ Lord Mackay of Drumadoon moved Amendment No. 235:
§ Page 16, line 5, leave out (", the Lord Advocate or the Attorney General") and insert ("or the Lord Advocate").
§ The noble and learned Lord said: In speaking to this amendment, I shall speak also to Amendments Nos. 238 and 239. In the light of observations which have been made, I do not intend to speak to Amendments Nos. 240 and 241.
§ These three amendments deal with the provisions of Clause 31(4) and Clause 32. They raise a number of issues relating to the making of a reference to the judicial committee on the question of whether a Bill, or any particular provisions of a Bill, would be within the legislative competence of the parliament. It can be seen from Clause 32(1) that that power is proposed to be given to the Advocate General, who will be a member of the United Kingdom Government, the Lord Advocate, who will be a member of the Scottish executive and the Attorney-General who will also be a Member of the United Kingdom Parliament.
§ The first question which this amendment addresses is why the reference should be initiated by a Law Officer as opposed to the Secretary of State in relation to the United Kingdom Government or the first minister in relation to the Scottish executive. Clearly, the issue which the judicial committee will require to address will be a question of law. However, the decision as to whether or not to seek such a reference may well have a political element to it. In those circumstances, it is inconceivable that either a Law Officer of the United Kingdom Government or the Lord Advocate, as the Law Officer of the Scottish executive, would initiate such a reference unless he did so on behalf of and with the full consent of the executive members of the executive body of which he was a member.
§ The second question is why both the Advocate General and the Attorney-General should be given such a right. They will both be members of the same government: namely, the United Kingdom Government. I would like to think that it is inconceivable that one would seek to initiate such a reference if the other was not content that that should happen, and vice versa. That 1380 is why one of the amendments seeks to delete the Attorney-General from any involvement at that pre-legislative stage.
§ It is extremely important to bear in mind that such a reference can be made only prior to the Bill becoming an Act of parliament. The suggestion that the Attorney-General, who has responsibilities for England and Wales and, to a limited extent, for Northern Ireland, should have a role to play in initiating such a reference seems somewhat bizarre.
§ Thirdly, it raises the question as to whether or not the Bill should make it clear whether, in initiating those references, the Lord Advocate, if it be he who initiates a reference, or the Advocate General, if it is he, is acting in the public interest or on behalf of the executive body of which he is a member.
§ It seems to me to be difficult for the Advocate General and the Lord Advocate both to be acting in the public interest if appearing on different sides of a case. It is not impossible but it is certainly difficult. In all probability, they will be on different sides and they will be arguing the issue of law as to whether or not it falls within the legislative competence of the parliament. That should be done in the name of a Minister rather than a Law Officer.
I raised this matter on the Second Reading and in response the noble and learned Lord the Lord Advocate said:
In the exercise of that function the Lord Advocate is acting as a Law Officer, and Law Officers do not act other than in an independent fashion at present. They act independently of the Government. They give independent advice. If they think at any stage that a Minister is about to transgress the proper boundaries of activity, it is the function of the Law Officer to pull back the Minister and to advise him or her accordingly. For the Lord Advocate to have the power to intervene and to refer a Bill independently of the executive is consistent with the actions of the Law Officer".—[Official Report, 18/6/98; col. 1782.]
Therefore, as the noble and learned Lord the Lord Advocate was explaining that provision on Second Reading, he was clearly of the view that that power was to be exercised in the public interest but, as I say, the difficulty that I have is that the Advocate General may be on the other side.
§ At a recent seminar which I attended, a speech was made on this issue. Views were expressed to a contrary effect. In particular, it was suggested that realistically, there is bound to be a political element in any decision to refer a question to the judicial committee, particularly in the early stages of devolution. Therefore, it will be important to ensure that there is agreement within the United Kingdom Government that such a challenge should be mounted. The speaker therefore envisaged that the Advocate General, in exercising that power, would act only with the agreement of his ministerial colleagues.
§ Such references are bound to attract a measure of controversy, referring back to what my noble and learned friend Lord Fraser of Carmyllie said a few moments ago. It is not unrealistic to expect that some members of the Scottish parliament may well seek to test, on a fairly regular basis, the limits of the legislative competence. Let us suppose that a Bill gets half way 1381 through its parliamentary passage and then either the Advocate General, as a member of the British Government, or the Lord Advocate, acting as a Scottish Law Officer, seeks to stop the Bill in its tracks by initiating a reference to the judicial committee and it is argued that the Bill does not fall within that legislative competence, it is not difficult to envisage the political fall-out which that may generate. In those circumstances, I propose Amendments Nos. 235, 238 and 239. I beg to move.
§ 5.30 p.m.
I find it very difficult to understand what the division of function is to be, not only in relation to Clauses 31 and 32 but also in the general administration of the law and the advising of parliament in Scotland in the years to come. We have great respect for the present Lord Advocate as we have had, if I may say so, for his predecessors in this House in recent years. Indeed, there was even a former Attorney-General present in the Chamber a short while ago, but that is no longer the case.
The Attorney-General normally has jurisdiction only in England and Wales. However, we now have a new person of legal eminence—namely, the Advocate General—as proposed in the Bill. I have looked carefully through the "Notes on Clauses" as well as trying to study the Bill itself, but I am at a loss to understand how the Advocate General is to be appointed and exactly what his functions will be. As a background to these two clauses, it would be most helpful if we could be told what is to be the division of function between these three learned people.
In relation to the particular function in Clause 31 of reference to the judicial committee, I wonder what would happen if the three learned people did not agree with each other. Let us suppose, for example, that two of them say, "Yes, this should be a reference to the judicial committee", but the other one disagrees. What would happen in that event? Indeed, could any one of them use his own initiative, whatever the others might feel, and decide whether to refer the matter to the judicial committee? This is a complex matter on which the noble and learned Lord the Lord Advocate must enlighten the Committee. It will be very difficult for us to understand the position unless he does so.
§ Lord Hope of Craighead
I should like to add something to the points made by the noble and learned Lord, Lord Mackay of Drumadoon, about the relationship between the Lord Advocate and the Ministers. If I may be so bold, I make such comments from the point of view of the judicial committee of which I am a member. If these issues about legislative competence are brought before the judicial committee for decision, questions will arise from time to time which are questions of fact or questions about which information may be necessary in order to enable the committee to reach its decision. Indeed, that happens quite frequently in our proceedings and, sometimes, in the relatively informal way that these hearings are 1382 conducted, we put questions to counsel who have the advantage of having with them people from the relevant jurisdictions who can provide answers.
If such references are to be conducted with expedition, which is essential if the parliament is to be assisted to do its job, the less opportunity there is for delay and confusion the better. Indeed, if someone appearing in a reference is not representing the true originator of the issue or has no immediate access to the information which the committee needs to resolve the point, the more unfortunate the position will become. It seems to be very important to identify correctly the true initiator of the decision to bring the matter before the judicial committee. Broadly speaking, it is for that reason that I would be inclined to support the amendment moved by the noble and learned Lord.
§ Lord Hardie
Perhaps I may deal, first, with the point made by the noble and learned Lord, Lord Hope of Craighead. While I can understand that the judicial committee frequently deals with factual matters, it is difficult for me to understand how that would arise in this situation. The noble and learned Lord will be aware that the reference in terms of Clause 32 relates to the question of whether or not a Bill, or any provision of a Bill, would be within the legislative competence of the parliament. That strikes me as being purely a legal question. I give way to the noble and learned Lord.
§ Lord Hope of Craighead
I am much obliged. Perhaps I may just elaborate on what I said. One only has to look, for example, at the contents of Schedule 5 and the reservations listed therein to understand my point. Indeed, I happen to be looking at the section relating to medicines on page 81 of the Bill which says:Regulation of prices charged for medical supplies",and so on. Indeed, it does not seem very far fetched to suggest that issues of fact might arise to which the judicial committee would like to have a quick answer to enable it to get to grips with the true issue of law which needs to be decided. The problem is that the whole idea of the reference to the judicial committee is written into the Bill in about one line, without really establishing the nature of the jurisdiction which the committee will have to exercise at that juncture.
§ Lord Hardie
I understand the point raised by the noble and learned Lord. However, even if a question of fact should arise, I do not understand the point about the title of the person appearing. For example, if the Lord Advocate were appearing in his own right in such circumstances, I would be surprised if he did not have the ability to answer factual questions relating to medicines, and so on. I am sure that it would be within the ability of the Lord Advocate to obtain the necessary information to enable him properly to instruct the committee. Before taking the reference, no doubt the Lord Advocate, the Advocate General or, indeed, the Attorney-General would have considered such factual issues if they related to a particular matter.
I turn now to the point raised by the noble Lord, Lord Renton, as to the relative functions of the three Law Officers. Of course, the office of Lord Advocate 1383 will be devolved, so he will be the senior Law Officer to the Scottish executive and the Scottish parliament. He will have no role in relation to acting as a Law Officer for the UK Government. As far as concerns the Attorney-General, he will of course retain his present role.
As the noble Lord will appreciate, at present the Lord Advocate has certain functions in respect of the UK Government as regards giving advice on Scots law in relation to UK departments, and has an input into UK policy and its Parliament. Therefore, by taking the Lord Advocate north and confining him to Scotland and to the Scottish parliament, we have created a gap which the Advocate General will fill. He or she will be a Scots lawyer of standing who will assume the roles which the Lord Advocate presently exercises in relation to the UK Government and the UK Parliament.
I thank the noble and learned Lord for his explanation as far as it has gone. I bear in mind what he has said about the Lord Advocate and that the Lord Advocate will continue to have his United Kingdom responsibilities—
Well, who will have them in respect of Scotland because Scotland is to remain part of the United Kingdom.
§ Lord Hardie
I am sorry. I obviously have not made myself clear. After devolution the Lord Advocate will not have the responsibility to the United Kingdom Government which he has at the present time. That is why the new office of Advocate General has been created. He will take over the responsibilities of the Lord Advocate in relation to the United Kingdom Parliament. The Advocate General will be a senior Scottish lawyer appointed by the Prime Minister to perform the roles relating to the United Kingdom Parliament and Government which the Lord Advocate presently exercises.
§ 5.45 p.m.
The Earl of Balfour
Can the noble and learned Lord say what is the position of the Attorney-General in this case?
§ Lord Hardie
As I sought to explain, the Attorney-General will be in exactly the same position as he is at the moment. He is the English Law Officer for the United Kingdom Parliament.
I turn to the group of amendments which we are considering at the moment. Amendments Nos. 235 and 239 would have the effect that the Attorney-General could not refer matters about the legislative competence of Bills of the Scottish parliament to the Judicial Committee of the Privy Council. The Government do not think that it would be appropriate to remove that right from the Attorney-General. If one goes on through the Bill, one can see that in terms of Part III of Schedule 6—that is, after legislation is in place—the Attorney-General has a specific role to play in 1384 proceedings in England. If, in the course of proceedings in England, there is a challenge to the question of the vires of a piece of Scottish legislation, it would be for the Attorney-General to raise the matter or, indeed, he could institute the proceedings themselves. In that situation the Lord Advocate would defend them.
It is envisaged that the Attorney-General will have a specific role in relation to legislation which has Royal Assent. We think that it is illogical to remove from him the role to challenge legislation prior to Royal Assent. There may be issues of English law and issues with which he is concerned which he wishes to raise at the pre-assent stage. That is why we are leaving the Attorney-General with the right to challenge legislation prior to Royal Assent.
Amendment No. 238 effectively removes the question of reference from Law Officers and hands it over to Ministers. The position which was outlined in the White Paper is that the Government recognise that the Scottish executive and the United Kingdom Executive may take different views of the Scottish parliament's legislative powers. In providing that references to the Judicial Committee should be made by a minister—whether it is the Secretary of State for Scotland or the first minister—noble Lords would run the risk of politicising the process and shifting the focus away from the determination of the legal argument. Essentially, whether it is competent or not is a legal issue and should not be a political issue. For that reason it was decided that the Law Officers were the appropriate people to raise proceedings about the competence of a Bill which had passed through its stages but was awaiting Royal Assent.
It is important to realise that the Judicial Committee will be concerning itself with technical questions of law and not matters of politics, although there may be issues of fact, as the noble and learned Lord, Lord Hope, has pointed out. In our view, in that situation it is appropriate that the references should be by the Law Officers rather than by other Ministers.
To deal with the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, we do not see the Law Officers acting in a representative capacity here. If the Law Officers consider that the Act is ultra vires, then they will intervene and raise proceedings in their own right.
§ Lord Mackay of Drumadoon
Before the noble and learned Lord sits down, will he address this question? Does he envisage that before initiating such a reference, the Law Officer would consult his political colleagues and act in accordance with their views as to whether a reference should be made?
I fully take his point that the issue for the Judicial Committee to decide is a legal issue. But I do not demur from the suggestion I made earlier that the decision as to whether to initiate a reference could have a highly political content. The problem about the Law Officer initiating this reference, particularly if he is the Lord Advocate, is that a few months or possibly a few weeks earlier, as a member of the Scottish executive he would have been involved in the formulation of a view, which 1385 would have been given to the parliament by the Minister in terms of Clause 30, that the Bill is in accordance with the legislative purpose of the parliament.
However, a few weeks or a few months down the line there may be uncertainty as to whether he is still acting in his capacity as a member of the Scottish executive or in an independent role representing the public interest. Traditionally, over the years Lords Advocate have been called into cases, such as the Law Hospital case in which I appeared. In the application by the Law Hospital as to whether or not feeding should be withdrawn from a patient in a permanent vegetative state the court required the Lord Advocate to represent the public interest. He did so in his own right. How he goes about working out what is the public interest is a matter for him. But there is no suggestion in that event that he is representing the Government.
I have a concern that there is an element of confusion here. I should be grateful if the noble and learned Lord would confirm whether he envisages that this would be the decision of the Lord Advocate, the Attorney-General or the Advocate General alone, or would it be one in which he took on board the views and acted in accordance with the wishes of his political colleagues?
§ Lord Hardie
I should like to draw a distinction, first of all, between Acts of the Scottish parliament which are initiated and introduced by the executive as part of the government's programme of legislation, and the legislation introduced by others such as Back-Benchers.
In the latter case the Lord Advocate would not have been involved in any statement in terms of the legislation by the person who is introducing the Bill. It is understandable in that situation how the Bill could go through. The Lord Advocate would say, "Well, I am not happy with this. It is outwith the competence and I am raising proceedings".
I turn to the situation where we are talking about government legislation. Of course, ultimately the workings of the executive will be for them. But I would envisage that the Lord Advocate, as Law Officer, would have a role similar to the one which he exercises at the moment in advising the executive about the legality of proposed legislation, and so on.
If the Lord Advocate has advised the executive that he or she considers that the proposed Bill is within the competence of the parliament, and then it goes through the parliament, it is inconceivable that the Lord Advocate will take a different view just before Royal Assent. Therefore I do not see that difficulty arising.
If the Lord Advocate is minded to raise proceedings challenging the competence of legislation which is about to be presented for Royal Assent, I would certainly anticipate that the Lord Advocate of the day would advise his ministerial colleagues that he had taken this view and that he was proposing to intervene and to present the necessary application to the Judicial Committee of the Privy Council. I do not anticipate—and I would not myself accept—that the executive would be able to discourage the Lord Advocate from that course because, if he has taken the view that this 1386 matter is ultra vires and outwith the competence of the parliament and has decided that he will proceed, clearly he ought to explain to his ministerial colleagues why he considers the matter is ultra vires. However, that would not be a political decision and he ought not to be influenced by any political consideration not to proceed in that situation.
As I said, this may be an interesting academic exercise or discussion because at the earlier stages, if it is a government Bill, the Lord Advocate will have expressed a view about the competence of the legislation. If he has taken a view at the earlier stages that it is not lawful, he ought to make that clear to the executive and, if need be, consider his own position if that advice is not accepted.
I hope that it follows from what I have said that I see this as a public interest issue. The Government consider it important that the making of the reference should be left in the control of the independent Law Officers because of the constitutional significance of this matter and bearing in mind the desirability of having harmony between Scotland and the United Kingdom. It should not be left to politicians to decide whether or not they will challenge legislation. I take up the point that the noble and learned Lord, Lord Fraser of Carmyllie, alluded to earlier. If there were extreme people in power who wanted to push the parliament to extremes and to challenge Westminster, the independent Law Officers may well be seen (I hope they will) as a protection against such excesses. I hope it will be considered that the independent Law Officers would not simply accept instructions from a group of politicians who were clearly acting outwith the competence of the legislation. With that explanation—
§ Baroness Carnegy of Lour
I am concerned not so much about the political aspect but rather about the mechanics of the matter which I do not understand. The noble and learned Lord, Lord Hope, pointed out that the judicial committee would need to ask various questions and to be able quickly to acquire the facts that were needed to enable it to reach a decision. According to Clause 32(1) the Attorney-General could make the reference right from the start. However, he is an English Law Officer. Would he have been in Edinburgh while all this was going on? Is it right that he should be included in that clause at that point? The noble and learned Lord said that at a later stage there may be an English dimension to all this. Obviously the politics of that would be fairly tricky. One can understand there may be occasions when the Attorney-General would be involved. However, if a measure has come from the Scottish parliament and it concerns Scottish legislation and decisions to be made by that parliament, why is it possible for the Attorney-General to make the reference? I should have thought that that would be pretty unacceptable and not an easy matter for the judicial committee. However, I may be quite wrong.
§ Lord Hardie
We are concerned with the legislative competence as to whether the parliament has exceeded its powers and encroached on the powers of the United Kingdom Parliament. By the word "encroached" I mean 1387 encroached in an unacceptable way because there will always be certain overlaps. The Attorney-General may well have an interest if the effect of the Scottish legislation is to encroach to an unacceptable extent upon his jurisdiction.
As regards the ascertaining of facts, the Attorney-General will, of course, have that within his power, just as much as the Advocate General. The Advocate General will essentially be concerned with United Kingdom issues. The Attorney-General will have the ability to obtain the necessary factual material, just as much as the Advocate General. I refer to the example given by the noble and learned Lord, Lord Hope of Craighead. Medicines are a United Kingdom matter. It would be easy for the Attorney-General to obtain the necessary factual material for the judicial committee. I am bound to say I still feel that the likelihood of the judicial committee requiring factual evidence is probably more remote in this kind of case than in the other kinds of case that the noble and learned Lord is accustomed to deal with.
I wish to ask the noble and learned Lord another rather vital question. He has made clear that the Advocate General is to be a member of the Scottish executive.
I am sorry. I made a slip of the tongue. I meant to say that the Lord Advocate will be a member of the Scottish executive and his first loyalty will be to the Scottish executive. Therefore he is unlikely ever to refer to the judicial committee a complaint about the Scottish executive's legislative intention. In those circumstances, if the Advocate General thinks that a complaint should be made, will he be able to overrule the Lord Advocate?
§ Lord Hardie
I am sorry. I should have picked up the point the noble Lord made earlier about what happens if two out of the three agree. With respect, that may be due to a misunderstanding on the part of the noble Lord. Any of these people may take proceedings. The Lord Advocate could take the decision himself to challenge legislation. Equally, the Attorney-General could take the decision himself to challenge legislation. If legislation had been challenged by the Attorney-General, which the Lord Advocate had advised the executive was perfectly competent, I would anticipate the Lord Advocate being on the other side of the litigation. Similarly the Advocate General may, on his or her own account, take the decision to raise proceedings. Therefore all three do not need to agree; anyone can decide that he or she thinks that the legislation is outwith the competence.
§ 6 p.m.
§ Lord Hope of Craighead
Perhaps I may return to the point raised by the noble Baroness, Lady Carnegy of Lour. It relates to a question of procedure which is not clear from this clause but may be provided for under the Orders in Council referred to in Clause 94. The judicial committee would be in grave difficulty if it did 1388 not have two parties before it—a contradictor to the argument put forward by the party initiating the proceedings. I should welcome a comment from the noble and learned Lord. Does he envisage that if, to take an example, the Attorney-General were to raise an issue, the judicial committee would have power to order the proceedings to be served upon a Scottish Law Officer, or possibly a Scottish minister, in order that a proper contradictor can be presented to the committee before the case is heard?
§ Lord Hardie
I believe that this matter may be dealt with by orders. I will write to the noble and learned Lord to confirm that.
As I understand it, proceedings against the parliament or the corporate body will be served upon the Lord Advocate. Therefore, if the Attorney-General raised a question as to the competence of the legislation, that would be done in the form of an initiating writ, which would then be served upon the Lord Advocate.
As I indicated to the noble Lord, Lord Renton, if the Attorney-General raised proceedings and the Lord Advocate had advised the Scottish executive that the matter was within its competence and had supported the legislation through parliament, then the Lord Advocate would undoubtedly enter the process and argue the case for the Scottish parliament as to the legality of the legislation. Similarly, if the Advocate General raised proceedings, again they would be served on the Lord Advocate.
The only question might arise when the Lord Advocate initiated proceedings as to the legality of legislation. As I said, the most likely situation would be if legislation were introduced by a Back-Bencher or someone other than the Scottish executive, if the Lord Advocate had taken the view all along that that was not within the powers of the parliament, then the Lord Advocate would raise the matter. I will examine the question as to who should be the contradictor in that situation. Clearly, in that situation I should not anticipate the Attorney-General or Advocate General entering the proceedings. I shall certainly consider that matter and come back to the noble and learned Lord.
§ Lord Rodger of Earlsferry
Perhaps the noble and learned Lord the Lord Advocate will consider one other matter. I should have raised it had I been present during discussion on Clause 28(8). It arises also in relation to Clauses 30 to 32. Subsection (8) of Clause 28 gives a direction as to how,Any provision of an Act of the Scottish Parliament is to be read";and it is to be read,so far as possible, so as to be within the legislative competence of the Parliament".Therefore I presume that if there were proceedings in relation to an Act, that is the way it would be read.
If, however, one were the lonely presiding officer, or the accompanied members of the judicial committee of the Privy Council, acting under Clause 32, in that situation would one read the provisions in such a way, if possible, so as to be within the legislative competence 1389 of the parliament; or would one, since there is ample time to put the matter right if it is outside the competence, not use that presumption? In other words, at the pre-legislative stage would one use a different test from that which would be used in terms of Clause 28(8)? Perhaps the noble and learned Lord the Lord Advocate will respond to that matter during the course of our debates this evening.
§ Lord Hardie
I may be able to deal with the point now. The noble and learned Lord has far greater experience and expertise in statutory interpretation than I. However, I should have thought that the reference in Clause 28(8) to an Act would refer to an Act that has passed through all its stages, including Royal Assent; whereas when it comes to scrutiny under Clause 32, one is looking at a Bill. The question before the judicial committee is whether a particular provision of a Bill, or the Bill as a whole, is within the competence of the parliament. I should not have thought that those arguing for legality could rely upon Clause 28(8). The whole question would be whether this provision would apply. If I am wrong, I am sure that the noble and learned Lord will correct me.
§ Lord Mackay of Drumadoon
Anyone who doubted that lawyers might make some money out of devolution will have had those doubts dispelled by the discussion of the last half-an-hour.
I was interested to hear the remarks of the noble and learned Lord about the fact that, as a Law Officer, he would be able to obtain all the information he required from his political colleagues. Looking round the Chamber as he uttered those words, I did not feel that they struck an overwhelming chord with his three predecessors who are present. However, I am sure that he will pay attention to the points raised by the noble and learned Lord, Lord Hope. What is clear is that, if references to the judicial committee take place at a pre-legislative stage, speed in determining a matter is of the essence.
I do not intend to press these amendments to a Division. However, I invite the Government to think again as to the politics of allowing the Attorney-General to intervene at this stage. I can readily accept that some questions of English law might arise; but if those have to be debated before the judicial committee, it would be perfectly possible for the Advocate General, if he were appearing, to be accompanied by a lawyer qualified in the law of England if the Advocate General were not so qualified. The politics of allowing the Attorney-General to intervene at this stage might go down very badly in Scotland. As he will be a member of the same government as the Advocate General, I hope that it might be possible to restrict the right to the Advocate General.
I am interested to hear the noble and learned Lord's remark about the role of the law officers acting independently of their executive bodies, albeit having advised them in advance as to what they propose to do. I shall reflect carefully on that matter over the Recess.
1390 Finally, to take up another point made by the noble and learned Lord, Lord Hope of Craighead, about information, I invite the Government to consider whether a provision such as Clause 93(4) or paragraph 5 of Schedule 6 might be written into the procedure at this stage to ensure that the appropriate contradictor has information given to him so that the judicial committee has the benefit of a full debate on the legal issues that arise. I seek leave to withdraw Amendment No. 235.
§ Amendment, by leave, withdrawn.
§ Lord Mackay of Drumadoon moved Amendment No. 236:
§ Page 16, line 10, leave out ("Standing orders shall ensure that.").
§ The noble and learned Lord said: Amendments Nos. 236 and 237 are small drafting amendments. They seek to amend Clause 31 to delete the reference to standing orders in subsection (5). If the judicial committee has decided that a Bill or any provision of a Bill is not within the legislative competence of the parliament, that should be the end of the matter. It should be on the face of the Bill that the presiding officer shall not submit a Bill before Royal Assent. I beg to move.
§ Baroness Ramsay of Cartvale
As the noble and learned Lord, Lord Mackay of Drumadoon, indicated, Amendments Nos. 236 and 237 would prescribe on the face of the Scotland Bill, that the presiding officer must not submit for Royal Assent a Bill, in its unamended form, if the Judicial Committee of the Privy Council decides that the Bill or a provision of it would be outwith the legislative competence of the parliament. As currently drafted, the Scotland Bill provides that standing orders must make the detailed provision to ensure that this does not happen.
I agree with the noble Lord that it is important that in such cases unamended Bills are not submitted for Royal Assent. However, I believe that the Bill in front of us already makes appropriate provision for this. It essentially places a duty on the parliament to provide in its standing orders for the procedures under which the presiding officer may and may not submit Bills for Royal Assent. These procedures must include procedures to prevent a Bill being submitted if the circumstances in Clause 31(5) apply.
I also accept that the end result of the noble Lord's amendments is likely to be the same as what is provided for in the Bill. But how we achieve that end is important. As I have indicated, the detailed procedures about the submission of Bills for Royal Assent will, quite rightly, be set out in standing orders, not on the face of the Bill. It will also be necessary in these procedures to build in the safeguards to ensure that Bills which have been declared to be ultra vires do not go forward unless they are amended. Clause 31(5) ensures that that will be done. I therefore believe the approach chosen by the Government is the correct one.
As I have explained on other occasions, we believe that it is important and indeed necessary that detailed matters concerning legislative proceedings in the parliament should be a matter for the Scottish parliament. That is why the Bill provides for this matter 1391 to be dealt with through standing orders. It is consistent with the approach we have followed throughout this particular clause, which prescribes the framework within which standing orders will cover detailed procedures dealing with the presiding officer's duties in scrutinising Bills and in submitting Bills for Royal Assent, as well as being consistent, with the general approach we have taken throughout the Bill.
I therefore invite the noble and learned Lord to withdraw his amendment.
§ Lord Mackay of Drumadoon
The sweetness of the noble Baroness's smile becomes greater, but her generosity remains at a fairly low level. This is not a matter which I intend to press, but it brings to mind a question which I asked some days ago and to which I still await a reply. What happens if the standing orders passed by the parliament do not comply with the provisions of the Bill? Who has the right to challenge it? No doubt I shall receive a reply to the question over the Recess and, if necessary, we can return to the matter. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 237 not moved.]
§ Clause 31, as amended, agreed to.
§ Clause 32 [Scrutiny of Bills by the Judicial Committee]:
§ [Amendments Nos. 238 to 241 not moved.]
§ Clause 32 agreed to.
§ [Amendment No. 242 not moved.]
§ 6.15 p.m.
§ Clause 33 [Power to intervene in certain cases]:
§ Lord Sewel moved Amendment No. 243:
§ Page 16, line 34, after ("obligations") insert ("or the interests of defence or national security").
§ The noble Lord said: I am speaking to Amendments Nos. 243 to 247 and 262 to 267. The purpose of these amendments is to ensure that there are adequate safeguards for those matters which the White Paper intended should be reserved. I spoke to related amendments to Clause 28 and Schedule 4—I am advised that it was last Tuesday, but it is all rather a fog at the moment.
§ While for the Scottish parliament to have a workable legislative competence, its legislation for devolved purposes needs to be able to have ancillary effects upon reserved matters, the Government recognise that there need to be safeguards in cases where Acts of the Scottish parliament could have adverse effects on the law as it applies to reserved matters. For example, legislation about housing or local taxation could possibly have an impact on the operation of social security legislation. Clause 33 therefore empowers the Secretary of State, by order, to prevent a Scottish Bill from being submitted for Royal Assent in certain circumstances. Clause 54(4) provides a complementary power to revoke subordinate legislation. Under Amendments Nos. 243 to 247 these powers would be available to a Secretary of State if the Bill contains 1392 provisions which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters. The change from the current wording in the Bill is necessary to take account, first, of the amendments to the tests of legislative competence in Clause 28 and, secondly, of possible adverse effects on the operation of any aspect of the law, whether statute law or the common law, as it applies to reserved matters.
§ Clauses 33 and 54(4) also enable the Secretary of State to intervene to ensure that the United Kingdom's international obligations are met. Amendments Nos. 243 and 263 provide for the interests of defence and national security to be treated on a similar basis. These powers would be available, for instance, where the Secretary of State considered on reasonable grounds that a Scottish Bill dealing with planning which affected defence establishments would be incompatible with the interests of defence or national security.
§ Amendment No. 247 would enable the Secretary of State to use his power of intervention in a four-week period after a decision by the Judicial Committee of the Privy Council that a Scottish Bill was intra vires. Without this amendment, the Secretary of State would have to use his power of intervention before the vires of a Scottish Bill had been established.
§ These powers of intervention are of course meant to be long stops. Their use would require to be justified and would be liable to be scrutinised by judicial review. The amendments establish a series of tests which limit the extent to which legislation by the Scottish parliament can affect reserved matters. But the powers of intervention provide essential balance to ensure that there is a sensible outcome in relation to reserved matters. Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used. But there should be no doubt that this Government will be willing to use the powers of intervention if it became necessary.
§ We have also taken the opportunity to make a number of clarificatory amendments to Clause 54. Amendments Nos. 262, 265 and 267 correct the wording of Clause 54 by making it clear that the Secretary of State's power to revoke subordinate legislation applies to existing legislation and that the requirement for the Secretary of State to state his reasons for making orders under that clause applies to orders made under all subsections, not just that under the power to revoke subordinate legislation.
§ I hope that this explanation of the amendments has been helpful. I beg to move.
§ Lord Lang of Monkton
I believe that I understood the explanation that the noble Lord gave of the amendments he has tabled to Clauses 33 and 54. Since, as I understand it, this is the first time that there has been any reference of substance to the powers of the Secretary of State in the Bill, I wonder whether we might explore a little more fully the role and function of the Secretary of State in future in the context of the amendments to his powers that the Government have tabled.
1393 Formerly, the position of Secretary of State for Scotland was powerful because he presided over a complete range of domestic areas of government, a substantial department and a substantial budget. He was therefore able to act with some authority within Scotland and to defend Scotland's powers within government at Westminster and in Whitehall. One can think of many examples—Tom Johnston and Willie Ross spring to mind—of those who have done this. But now there is to be something of a role reversal. We are all familiar with the constitutionally illiterate challenge of any Secretary of State: "Are you the Government's man in Scotland or Scotland's man in Government?". As I see it, under this Bill that question need not be asked. It is quite clear that the role of the Secretary of State for Scotland can in future only be that of the role of the Government's man in Scotland.
Clearly, from a position of strength, the Secretary of State is now moving to a position of considerable weakness. He will no longer be at the centre of government. He will be an outsider but with power to intervene to prohibit a Bill of the Scottish parliament after it has passed through the Scottish parliament. Indeed, through Clause 54 he will have power to intervene to control and prohibit action by the Scottish executive.
If I read the Bill correctly, that does not bode well for the future relationship between the parliament in Edinburgh and the Parliament at Westminster. Therefore I ask the Government how they see the role, function and status of the Secretary of State. In the context of this clause and subject to the amendments as tabled, to which Secretary of State are they referring? Is it the Secretary of State for Scotland or another? I looked at Clause 112 for enlightenment on interpretation and found it silent. In the context of the amendments it may be the Foreign Secretary, the Secretary of State for Home Affairs or the Secretary of State for Defence who will be the relevant Secretary of State. As most Secretaries of State these days seem to be Scots, that may not be perceived as being a problem at the present time.
I suspect that the answer I will receive is that it is the use of the generic term "Secretary of State", which is normally used in legislation. But it is all the more important, therefore, to clarify precisely what the role of the Secretary of State for Scotland will be. It is he who is most likely to find himself dealing from Westminster with the Scottish parliament.
Will there be a Secretary of State for Scotland? Will he be a Secretary of State for Scotland alone or might he be grouped together with other territorial parts of the United Kingdom as a sort of revived and some may think insulting concept of Colonial Secretary? Will he have a seat in the Cabinet? What roles would he have other than those that might—and only "might"—arise under Clauses 33 and 54? What would be his powers and authority?
1394 I assume that the Secretary of State will have no department and that in itself will underline the weakness of his position—something on which Mr. Jack Cunningham may care to reflect in the days ahead. Will he have junior ministers to assist him? Will he receive advice from officials and, if so, from which officials? Will they be from the Scottish Office? If so, how will that reflect the advice that those same officials will be giving to the Scottish executive whose actions the Secretary of State might then be advised to overrule?
I am not seeking to raise artificial hurdles, difficulties and problems; rather, I am trying to anticipate the kind of problems that will arise once the legislation is in force. The argument may be better raised at Clause stand part, at which time I may be tempted to return to the charge. But I should like the Government's views and thoughts on how they see the role of the Secretary of State.
I suspect that the Government have given little thought to this matter. Their preoccupation has been so entirely with the role, powers and functions of the Scottish parliament that they have regarded the Secretary of State's function as something that will just wither away into irrelevance. If that is the case—I hope that the Minister can reassure me that it is not—it is an extremely dangerous posture to adopt. Links between Edinburgh and Westminster will be vital if we are to retain the integrity of the United Kingdom following the creation of this parliament. There is a possibility that the role of the Secretary of State will be pivotal in sustaining and nurturing that relationship. Therefore, we should be told where the Government stand in relation to the powers of the Secretary of State.
§ Lord Kirkhill
Before the noble Lord resumes his seat and before I make one point, I want to say that his remarks are pertinent, important and certainly demanding of specific reply. I am sure that it is my own stupidity, but I did not understand the point he made in relation to various Secretaries of State. Perhaps he could elaborate a little on that point so that I can fully understand his comments.
§ Lord Lang of Monkton
I am grateful to the noble Lord for giving me the chance to try to make myself more clear. Under subsection (1)(a) of Clause 33, the Secretary of State may take certain action to prohibit the presiding officer from submitting a Bill for Royal Assent, where he has reasonable grounds to believe that such action,would be incompatible with any international obligations".The Government's amendment added to that criterion the further consideration that he should intervene where the interests of defence or national security are concerned.
I imagine that the Secretary of State who would be in the lead in such intervention would be, first, the Secretary of State for Foreign Affairs; secondly, possibly the Secretary of State for Home Affairs and, thirdly, the Secretary of State for Defence. That may be 1395 so, in which case the Minister and I understand each other. But it still does not answer the question in relation to what powers the Secretary of State has.
§ Lord Sewel
Perhaps I can deal with those issues now, if it is convenient to the Committee.
The noble Lord, Lord Lang, will receive the reply he anticipated. Reference in the Bill to "Secretary of State" is a generic reference. It is applicable to any Secretary of State. If we move on to the broader point, it comes up elsewhere in the Bill on the future role and function of the Secretary of State. We must remember that everything to do with the Secretary of State—the future role and function of the Secretary of State—is largely a matter for the Prime Minister of the day. We imagine that there will be an important task to be done, particularly in the early stages of the parliament's life, in terms of establishing and cementing good relations between the UK Government and the Scottish executive.
Clearly, this is an area where everyone recognises that the role of the Secretary of State in a devolved context is likely to change and evolve over time. It is difficult at this juncture to be prescriptive or precise in terms of how the relationship between the Secretary of State for Scotland and the UK Parliament, the UK Government, the Scottish parliament and the Scottish executive will change.
We are in a situation where, although we are establishing the framework for devolution, much of the relationships and practices are of a dynamic nature. There will be change; and there will be evolution. I am not confident that I can predict at this stage what that will look like five years down the road.
§ Lord Hope of Craighead
Perhaps the Minister will explain a little more the thinking behind Amendment No. 247. That is the provision which creates a relationship between the Secretary of State and the Judicial Committee of the Privy Council. Clearly, some provision has to be made to deal with a situation where a reference has been made to the Privy Council and to provide a timetable within which the Secretary of State takes the step provided for in Clause 33.
From the way in which Amendment No. 247 is presently worded, it seems to me that, even if the Secretary of State decided that in the interest of defence or national security he should make an order under Clause 33, nevertheless, the Judicial Committee would have to go through the process of hearing the application or deciding it, or otherwise disposing of it before the period of four weeks began. Perhaps it would make more sense if the period of four weeks were to run from the date of reference to the Judicial Committee. It seems unfortunate, if the Judicial Committee is to have other things to do, that it should have to go through and decide an issue which will be immediately rendered academic by the decision of the Secretary of State.
§ Lord Fraser of Carmyllie
Before the noble Lord responds, perhaps I can intervene briefly. I can reassure the Minister that I welcome Amendment No. 244. The Bill as it stood made my head throb and this amendment makes it somewhat simpler to understand. It is therefore 1396 to be welcomed. However, we will want a fuller reply at some point about the role of the Secretary of State for Scotland—whether combined or however it is to be.
It seems to me that the only thing one can say with confidence about the Secretary of State for Scotland under these new arrangements is that his first task will be to see whether the Advocate General is free for lunch every day; he has so little else to do. Otherwise all that he would be doing on an annual basis is adjusting the seating plan for the annual visit of the Moderator of the General Assembly before he delivers his customary sermon in the Palace of Westminster. I wonder what his role would be. The only prediction one can make with any certainty is that he will not be residing in the splendour of Dover House for much longer from what one reads about the intentions of the Prime Minister.
I do not expect an answer from the noble and learned Lord at this time but I would be grateful if he reflects on it and writes to me. In Clause 33 he is proposing after "international obligations" the words,or the interests of defence or national security".What exactly are "international obligations?" Before the Minister leaps to his feet, I am aware that international obligations are defined in Clause 112(10). They are defined there in the context of separating out from international obligations those obligations which are to be treated as Community law.
If this Parliament wished at any time in the future to remove from the Scottish parliament the powers that have been devolved—to increase again the extent of the reservation—as I understand it this Parliament could do so under Clause 29 by way of an Order in Council. Am I correct in understanding that if the Government of the United Kingdom entered into international obligations—and they could achieve international obligations without reference to this House; the obligations would already be in place—it would allow the Westminster Government by, as it were, a back route to impinge upon those matters which had been devolved to the Scottish parliament?
This is not simply to raise an exceptionally arcane point; although it may appear to be such. It is my understanding that the device has been used by the Federal Government of Australia when wishing to restrict the activities or the powers of the states. As a consequence of entering into international obligations, what had been within the remit of the states was necessarily limited. I am not sure what the answer is but it is something we ought to be alive to. It would be helpful, if not now, then during the long Recess, if the Minister would reflect on it and write to me.
§ 6.30 p.m.
§ Lord Rodger of Earlsferry
As I understand it, Clause 33(1) will, as a result of Amendment No. 243, give the power to the Secretary of State to make an order where he believes legislation would be incompatible with international obligations or the interests of defence and national security. Clause 54(4)(a) has a similar theme in respect of subordinate legislation. Why is it that there is no reference in Clause 54(1) to the interests of defence or national security? In other words, the 1397 Secretary of State cannot stop a proposed action by a member of the Scottish executive even if he believes that it is contrary to the interests of defence and national security. He can only do so if it is incompatible with any international obligations. Is that intentional or just an omission?
§ Lord Sewel
I shall try to respond to the points made by noble Lords. I am enormously gratified that the amendment has helped the throbbing head of the noble Lord, Lord Fraser of Carmyllie. His comments have added to my throbbing head. He invited me to write to him over the Recess and that is an invitation that I take up with alacrity. If he does not mind, I will leave the point there.
As to the point of the noble and learned Lord, Lord Hope of Craighead, I accept the commonsense attraction of what the noble Lord said. Again, it is a matter upon which I would like to write to the noble and learned Lord.
The noble and learned Lord, Lord Rodger of Earlsferry, asks why Clause 54 does not require or prohibit executive action in relation to the interests of defence and national security. We consider that it is appropriate to have powers of intervention in order to protect the interests of defence and national security from the possible adverse effects of Acts of the Scottish parliament or subordinate action made by Scottish Ministers. That is what the amendments set out to do. The powers therefore match those in relation to the possible adverse effects of legislation on the operation of the law as it applies to reserved matters. We do not consider that it is necessary to provide the Secretary of State with powers to prevent or require action in relation to the interests of defence or national security to match those which are available for international obligations.
Clearly, a judgment has to be made about the extent of the powers of intervention. We have concluded that it would go too far to extend the power of the Secretary of State in relation to defence and national security to executive action by the Scottish Ministers. It is a matter of judgment. I take the noble and learned Lord's point. I would like to revisit the matter and give it another round of judgment.
§ Lord Mackay of Drumadoon
While the Minister is doing so, he may wish to consider Amendment No. 263. As I read it, the amendment seeks to eliminate the anomaly to which the noble and learned Lord drew attention. As I construe it, it seems to write certain provisions into Clause 54. I may be wrong about that.
§ Lord Sewel
It is the difference between subordinate legislation and executive action. We are covering subordinate legislation but we are not insisting on the prohibition of executive action.
§ On Question, amendment agreed to.
§ Lord Sewel moved Amendments Nos. 244 to 247:
§ Page 16, line 35, leave out from ("which") to ("which") in line 37 and insert ("make modifications of the law as it applies to reserved matters and").1398
§ Page 16, line 39, leave out ("an enactment") and insert ("the law").
§ Page 17, line 2, leave out ("and").
Page 17, line 5, at end insert—
("( ) if a reference is made in relation to the Bill under section 32, the period of four weeks beginning with the reference being decided or otherwise disposed of by the Judicial Committee").
§ On Question, amendments agreed to.
§ Clause 33, as amended, agreed to.
§ Clause 34 [Stages of Bills]:
§ Lord Mackay of Ardbrecknish moved Amendment No. 248:
§ Page 17, line 12, leave out subsection (1) and insert—
§ ("(1) Each Bill shall be considered by the Parliament at the following stages—
- (a) a general debate on the principles of the Bill;
- (b) a stage during which a committee of the Parliament may hear evidence on and shall consider representations received from interested parties on the subject matter of the Bill, and at the conclusion of which, the committee shall report to the Parliament on the evidence and representations it has received;
- (c) a stage for a further general debate on the Bill, in the light of the report prepared in terms of paragraph (b) hereof, with an opportunity for members to vote on the general principles of the Bill;
- (d) a committee stage for members of the Parliament to consider and vote on the detail of the Bill;
- (e) a report stage to consider any amendments subsequent to the committee stage in paragraph (d);
- (f) a final debate and vote on the Bill, at which the Parliament can either pass or reject it.
§ (1A) A period of not less than three calendar months shall separate the stages of the Bill mentioned in subsections (1)(c) and (1)(e) unless otherwise provided for by a resolution of the Parliament.").
§ The noble Lord said: Amendment No. 248 is grouped with the amendment of my noble friend Lord Balfour, Amendment No. 249. The Committee will remember that on the first day of Committee we had an interesting debate about the second Chamber. The Government indicated very firmly, including in the Division Lobbies, that they did not want a second Chamber. They also indicated—as they have done all along when we have discussed these matters—that somehow or other the Scottish parliament would deal with its business, especially its legislative business, in a different way. The implication was, of course, in a better way than the House of Commons. Therefore the need for a second Chamber would not be there and a case could not be made for one.
§ We see in Clause 34 what the standing order shall provide as regards the procedures dealing with a piece of legislation, a Bill. It is interesting that we keep on being told that all such details should be left to the parliament to work out for itself. However, every now and then—on every other clause, I suspect—up come some details which are not to be left to the Scottish parliament, but to be set out in legislation. This is one of those occasions when the Government's usual line has been stood on its head.1399
§ The proposals in Clause 34 sound remarkably similar to the way in which the House of Commons deals with Bills. There is first to be a general debate on the Bill. That is to be followed by detailed consideration of it. There is then to be a final stage at which the Bill can be passed or rejected. That sounds awfully like Second Reading, Committee stage, Report and Third Reading. Furthermore, there is to be no second Chamber for the Scottish parliament. I was under the impression—I was continually told—that there would be different procedures in the Scottish parliament. Even if the Scottish parliament wants to have different procedures, Clause 34 ties it down to a system that looks remarkably like that in the House of Commons.
§ As we all know, even if the House of Commons is not hurrying through the legislation, a Bill takes on average about three months to complete all its stages. One of the advantages of your Lordships' House is that a Bill also has to take roughly about the same amount of time passing through. Often by the time a Bill reaches this House, various outside organisations with an interest in it have caught up with what the Bill actually does and they then lobby Members of your Lordships' House to change the Bill. That is certainly what happened on some of the major legislation in which I was involved at the Department of Social Security.
§ In my amendment I suggest an alternative to what I might call "the House of Commons pattern" as outlined in Clause 34. In Amendment No. 248 I suggest that there should first be a general debate on the principles of the Bill—a bit akin to Second Reading. Then, as the amendment states in, I hope, reasonably plain English, there should be a stage during which a committee of the parliament goes out to take evidence, to meet people who are interested in the subject matter of the Bill, and generally to listen to what is being said. That is not dissimilar to procedures that have been used in your Lordships' House on one or two occasions when a committee of your Lordships' House has held hearings, not just here in London, but also in Scotland. It is certainly true as regards one piece of Scottish legislation. I meant to check before the debate, but I believe that certain deer legislation went through that procedure and that some of my noble friends went to the Highlands to take evidence from the people directly involved.
§ I envisage a similar sort of operation, except that it would apply to every Bill. I believe that we have attempted to apply such a procedure only to Bills about which there has not been a great deal of political controversy. In some ways, however, I believe that it is more important that it is done for politically controversial Bills. During that stage, outside bodies could make representations to a committee of the parliament and suggest amendments. At the end of the period, the committee should report to the parliament on the evidence and the representations it has received.
§ At that point, there would be considerable input from outside the parliament. That suggests to me that the parliament would be "inclusive". I now come to some buzz words so beloved of government Ministers. The Bill would "involve" the people of Scotland. It would be "non-confrontational." Given those words, so beloved of 1400 Ministers, I hope that the Government will accept my amendment, at least in principle. I accept that it could probably be worded better, but it is the principle with which I am really concerned.
§ There would then be a further general debate, a kind of Second Reading mark two, when members would have before them the evidence and representations made to the committee. That would give members of the parliament the opportunity for a better informed debate than may have been the case the first time round. We would then move to a Committee stage in the normal way. I have teased out that the final stages might look more like those in your Lordships' House than in the House of Commons. There would be a Report stage, at which any amendments suggested subsequent to Committee stage, could be considered. There would then be a final debate and vote on the Bill—a sort of Third Reading—when the parliament could either pass or reject the Bill.
§ I have made clear in what would be new subsection (1A)) that there should be a period of time between those two events so that the parliament is not rushed in its consideration of legislation, given that it is unicameral, and to ensure that Bills should take the same amount of time to go through the only House of the Scottish parliament as they do to go through both Houses of this Parliament.
§ I suspect that many Members of the Committee will offer variations on the theme of how the Scottish parliament ought to legislate as a unicameral legislature. I gather that unicameral legislatures around the world deal with such problems in different ways. However, it seems to me—as I am sure that it must to many Members of the Committee—that Clause 34(1) does not sound at all innovative. It sounds and reads very like the House of Commons procedure translated to the Scots parliament in Edinburgh. I beg to move.
§ 6.45 p.m.
§ The Deputy Chairman of Committees (Lord Lyell)
It may be convenient if I advise the Committee that if Amendment No. 248, in the names of the noble and learned Lord, Lord Mackay of Drumadoon and the noble Lord, Lord Mackay of Ardbrecknish, is accepted, I shall not be able to call Amendment No. 249, which stands in the name of the noble Earl, Lord Balfour.
The Earl of Balfour
I agree very much with what my noble friend on the Front Bench said. On my reading of Clause 34 it appears to offer only one opportunity for a Bill to be amended. In my amendment I suggest two stages as a means of winning at least a tiny slice of the cake. I support my noble friend Lord Mackay of Ardbrecknish in his amendment, although I feel a little unhappy about what will be the new subsection (1A). I believe that the delay would be rather trying for the parliament in Scotland.
I have never been a Member of another place, but I do not want amendments to be "chosen" in the Scottish parliament. I understand that that is done by the Chairman of Ways and Means in the other place. That is because—I say this quite loosely—I know of 1401 amendments which were never called in another place but which were accepted in this House. I believe that that leads to defective legislation.
Without making a long speech, I should like to refer to what happens in this House and why I think it is so good. Your Lordships' House goes through Bills properly, from end to end. That does not appear to happen often in another place. We also have a total of three bites at the cherry. I feel that there should be at least three opportunities for legislation to be amended although I have set down only two in my amendment. I say that on this principle. It is extremely difficult for a noble Lord from any corner of this House to table an amendment—obviously, it must not contradict the principles of the Bill—which is legally correct and in language that the parliamentary draftsman is likely to accept.
As so often happens, the Government have accepted the principle of the amendment and agreed to table an amendment of their own at Report stage. Even when that happens, occasionally a consequential amendment should be taken into consideration. There is then an opportunity for the Government to tidy up any loose ends at Third Reading in your Lordships' House.
Referring to my noble friend's proposed subsection (1A), there is a rather nice rule in this Chamber that there should be an interval of two weekends between the stages of a Bill. That is sensible. I hope the Government accept that back-benchers of the Scottish parliament should have every opportunity to discuss Bills and table amendments in the same way as Members of this House. I have the executive very much in mind. I want to make quite certain that when a Bill has gone through parliament it does not have defects. Occasionally Bills have had defects, with disastrous results. Sometimes the courts have found that legislation is not as good as it should be. That leads to complications. One of the difficulties is that primary legislation is required to alter primary legislation. The Scottish parliament should be given every opportunity to get legislation right in a reasonable time with a reasonable opportunity for debate so that every clause is discussed.
§ Baroness Carnegy of Lour
I am sure that the Committee will be told that this matter should be left to the Scottish parliament and that it is wrong for us to interfere. The main element of my noble friend's suggestion is that the public in Scotland should have time to absorb what the Scottish parliament is trying to do and to react to it before legislation proceeds too far. There are examples of what happens when the Government decide in the course of a Bill to make a hurried change which does not work. This is a sensitive matter at the present time. We have the example of the proposal to lower the age of consent where there has been a last-minute change. The public have not properly absorbed what is proposed. Noble Lords had to take a view on it rather quickly. Public opinion is still developing on the subject. It was a pity that that happened so quickly.
1402 Another example is Scottish student fees. One understood how the issue arose. A decision was taken hurriedly on the basis of the Dearing Report. A mistake occurred and another hurried decision was made by the Scottish Office to put it right. That turned out to be another doubtfully convenient decision. That is what happens when governments decide matters too quickly without public opinion having time to make itself heard.
It is quite wrong that this Chamber, which has enormous experience of how public opinion develops during the passage of legislation, should not insert into this Bill an extension of the period of time during which the parliament legislates so that public opinion can develop and react properly. It is very important for Scotland. If that does not happen many beginners who have not before dealt with legislation will become very disappointed with the process. They may let down their constituents and the country as a whole. The parliament may have been unduly influenced by Civil Service advice and not enough by public opinion. I believe that that will occur in a number of ways. The Scottish Civil Service is a marvellous body of men and women who do their utmost. However, it is not their job to test the opinion of people about legislation; it is the job of politicians.
On one or two occasions this afternoon the Government have said that they will look again at certain matters. I hope that they will either accept this or look at it again. It will be the greatest possible mistake if they do not.
§ Lord Hylton
I have great sympathy with what has just been said by the noble Earl and the noble Baroness. I should like to explore other possible alternative procedures for the Scottish parliament. If Clause 34 is accepted as drafted, do the Government believe that it would be possible for the Scottish parliament to consider Bills while still in draft and before they had been finalised by the executive or by private members? If so it would allow for the taking of evidence from interested parties and either specific or broad pressure groups on particular Bills.
I understand that there is already in existence in the other place a special standing committee procedure whereby evidence can be taken. I believe that when Parliament resumes that procedure will be adopted for certain Bills. I am trying to elucidate the idea of scrutiny in advance of the terms of legislation becoming fixed. Anything that the Government can say to throw light on that matter is most welcome.
§ Lord Mackie of Benshie
I understand the purpose of Amendments Nos. 248 and 249. The noble Lord, Lord Mackay of Ardbrecknish, and the noble and learned Lord, Lord Mackay of Drumadoon, have done a lot of very useful work in considering a possible procedure. I quite like it but I will not have it, in that I do not believe that this amount of detail is a matter for us. Good work has been done on this. There is no disagreement with it as far as concerns my party. It provides a chance for a proper examination of legislation in a unicameral parliament. I cannot say the same about the efforts of the Government in Clause 34 1403 in relation to the first stage where the Government simply follow a pale imitation of the procedure adopted in this Parliament.
The Government appear to adopt an attitude that is contrary to what was said in the debate in the House of Commons when Mr. McLeish gave the following reply:The all-party consultative steering group on the Scottish Parliament, which has been alluded to, agreed at its first meeting that arrangements for pre-legislative scrutiny should be introduced. The exact form that that might take will be considered carefully in the coming months".—[Official Report, Commons; 19/5/98; col. 750.]Why on earth are we now putting on the face of the Bill detail in the form of recommendations that simply form parliamentary procedure? While I believe it would be wrong to put Amendment No. 248 onto the face of the Bill, it appears to me that Clause 34 is badly drafted and is certainly in need of modification.
§ 7 p.m.
§ Baroness Ramsay of Cartvale
I appreciate that in Amendments Nos. 248 and 249 noble Lords want to ensure that the parliament will have sufficient opportunities to consider and vote on Bills in front of it. I agree with that wholeheartedly. I also agree that it is important that the parliament is able to hear and consider the views of bodies interested in a Bill. However, the Government believe that it is not for us to prescribe the working practices of the parliament. We cannot accept these amendments because they would intrude too far into the legislative processes of the Scottish parliament. I am afraid that I am not disappointing the noble Baroness, Lady Carnegy of Lour, in saying that.
We consider that the Bill prescribes the three minimum stages of parliamentary scrutiny. This is a very minimal and generalised laying down of three stages of parliamentary scrutiny—not with capital letters. It is not unique to Westminster to have a general debate on a Bill with an opportunity for members to vote on its general principles, then consideration of, and an opportunity to vote on, the details of the Bill and a final stage at which the Bill may be passed or rejected. One could not get a much more generalised description of what most democratic legislatures go through when they are trying to get a Bill through. Of course, it does not mean that the detail of how then to proceed is in any way curtailed by what is in this Bill. Everyone has their own way.
The noble Lord, Lord Mackay of Ardbrecknish, immediately saw Westminster and another place in the way that we have done that. But these are very generalised principles. It is very difficult to work out other ways that one could get a Bill through.
The Earl of Balfour
I am sorry to interrupt the noble Baroness in what she is saying. But she did refer to three stages? Would the Scottish parliament be able to make its procedure enter four stages if it so wished?
§ Baroness Ramsay of Cartvale
Yes. I thank the noble Earl for making that point. If I said "stages" that certainly was an error; I did not mean stages, I meant 1404 three points. I will not go through the points again as I have already stated them. It does not mean that consideration of, and an opportunity to vote on, the details of the Bill needs to be at one stage. There could be as many stages as the Scottish parliament wanted to make it. There is nothing in the Bill to prevent the parliament from considering a Bill in draft form—before it was introduced.
The noble Lord, Lord Mackay of Ardbrecknish, said that he has been told that there are many variations on a theme. That is true. These principles are very generalised and very basic; and on that basic theme the Scottish parliament could produce any variation it wanted. All could be possible within the framework we have laid down. Working procedures for the parliament may well be different from those of this and another place. Personally, I rather believe that they will be. They may or may not be. That is for the Scottish parliament to decide.
We should not assume that Bills will be developed and introduced exactly as they are at Westminster. Ultimately, it will be for the parliament to decide on its own procedures, including arrangements for the scrutiny of legislation. These will be governed by its standing orders.
We have recognised that it would be unrealistic to expect the parliament to be in a position to put in place standing orders on day one of its operation. That is why my right honourable friend the Secretary of State for Scotland established the all-party consultative steering group which has been mentioned. This group is chaired by my honourable friend Mr. Henry McLeish. This group will prepare a draft report recommending what the standing orders should cover. It is expected to report by the end of the year. Initial standing orders will be included in a transitional order to be made by the Secretary of State in good time to be in place from the outset. I remember giving an identical answer earlier in the Committee stage to the noble Lord, Lord Selkirk of Douglas, who is not in his place at the moment. It will then be for the parliament to develop and adapt the standing orders in due course, as it sees fit.
The consultative steering group has already begun to consider how the legislative process might be handled by the Scottish parliament. It is very likely to recommend a vigorous pre-legislative process so that proposals for legislation which come before the parliament have been subject to rigorous scrutiny and participation and that the effects of the proposed legislation have been well considered. The group is looking at the form in which legislation might be required to be presented and at the details of the various stages of scrutiny which the Bill should undergo in the parliament. The results of the group's consideration will inform the parliament's eventual decisions on the legislative process. I am sure that the parliament will want to establish a system of legislating which will deliver well thought out, quality legislation.
I can assure the noble Earl, Lord Balfour, that there is nothing in the Bill to prevent the parliament from including in its standing orders appropriate opportunity for detailed consideration of a Bill. For example, it 1405 could even include a Report stage in our terms if it considers that necessary. Personally, I would agree that there are advantages in allowing a second stage for dealing with the detail of a Bill, if only to allow the proposers of the Bill to respond to points raised in earlier debates. However, I believe that we should leave it to the parliament to decide about that.
The amendment would impose a very detailed and time-consuming process on the parliament which I think we should hesitate to impose. There are certainly interesting elements in the proposal and I agree that consultation with outside bodies will be a necessary feature of the parliament's work. However, I repeat yet again that we should leave it to the parliament to decide precisely how to do that. I urge the noble Lord to withdraw his amendment.
§ Lady Saltoun of Abernethy
The noble Baroness has told us that the consultative steering committee will probably report at about the end of the year. What we do not know is whether its recommendations will have to be accepted by the Scottish parliament, quite apart from the fact that we do not know what its recommendations are going to be.
In scrutinising the Bill we have a duty to do all we can to make sure that legislation passed by the parliament which this Bill brings into being will receive thorough and adequate scrutiny. That is our duty to the people of Scotland.
§ Baroness Ramsay of Cartvale
As the noble Lady said, the group will prepare a draft report recommending what the standing orders should cover. It is expected to report by the end of the year. The initial standing orders will be included in a transitional order to be made by the Secretary of State in good time to be in place from the outset. But it will then be for the parliament to develop and adapt those in due course as it sees fit. It will be for the Scottish parliament then to deal with the standing orders.
§ Lord Steel of Aikwood
I am baffled as to why we are discussing this matter. Perhaps I may refer back to what Mr. Henry McLeish said in another place and continue the quotation which my noble friend read. He said:It is useful to stress the work that is being done by the consultative steering group, which involves representatives of all parties, who are all making an excellent contribution. They are aware of the unicameral nature of the Scottish Parliament. They are keen to achieve consensus on legislation. Indeed, they are keen to improve radically on the Westminster model, which is important".—[Official Report, Commons, 19/5/98: col. 750.]Therefore, although the noble twins Mackay had a very good run at doing this work for the committee, they have their representatives on it. I believe that they should put their thoughts to that committee.
By no stretch of the imagination could one consider Clause 34 to improve radically on the Westminster model. One might as well pass a provision in the Bill that the parliament shall be in favour of motherhood and apple pie; it has no real effect. I do not see why the 1406 clause is in the Bill. The standing orders for the Scottish parliament will be adopted by the Scottish parliament. We are well on the way to getting them through an all-party process; and I think we should leave it at that.
The Earl of Balfour
I was going purely and simply on what I read in the Bill. When I read Clause 34, I had the impression that the clause will give the parliament only one chance to amend a Bill. I am glad to have that impression corrected, but that is how I read the Bill.
§ Lord Mackay of Ardbrecknish
We have had an interesting debate on the amendment. I am grateful to noble Lords who have spoken and those who supported my idea. The noble Lord, Lord Mackie, liked it but would not accept it. Perhaps I may say this to the noble Lord, Lord Hylton. My stages one and two could easily be achieved on the basis of a draft Bill. I think that that would be a good idea. But as my noble friends Lord Balfour and Lady Carnegy said, it is important that we have proper scrutiny of legislation.
The Minister spent half her time watering down Clause 34 and the other half trying to tell me that it did not mean what I think it means. I noted she said that Clause 34 does not go through three stages; it makes points. With all due respect, it does not make points. Clause 34(1)(c) states:Standing orders shall include provision for a final stage at which a Bill can be passed or rejected".That implies that Clause 34(1)(a) and (b) were also stages.
We have three stages in place of the six stages in this Parliament. There is no getting away from that simple fact. It cannot be said that what is provided here is a minimum, generalised approach. It is in the legislation. If the Scottish parliament did not have standing orders which included those three things and someone were aggrieved, it could possibly find itself in court.
But the most ridiculous factor is this. It is not for us to prescribe working practices. While I shall withdraw my amendment, will the Government withdraw their prescription of what working practices should be? They are hoist with their own petard. If I am at fault because I am prescribing working practices, I should have thought that the Government were at fault. Clause 34 need only provide that, "Standing orders shall include provisions for the procedures to be followed for the passage of a Bill". We can then allow the consultative steering group to put forward its proposals and, after the parliament starts, it can amend them as it sees fit.
I have found the debate unsatisfactory. I am glad that I started it off because I hope that the Government, the people on the steering committee, and those who will be in the new parliament are at least listening to the point we are making: that in a unicameral parliament it would be a mistake—I think a serious mistake—to reflect, as does Clause 34(1), the procedures of the House of Commons, which has this House to back up and revise its legislation, and to give outside bodies a second bite at the cherry of campaigning and lobbying against a piece of legislation.
Before my noble friend sits down, one should get on the record that what is proposed in subsection (1) of the Bill does not fully represent even the procedures of the House of Commons. In the House of Commons there is a procedure very similar to that in subsection (1)(b) of my noble friend's amendment.
§ Lord Mackay of Ardbrecknish
I gather that there are now some new procedures in the House of Commons which are somewhat like those in subsection (1)(b), but the fact is that they are not used in every Bill. As I said earlier, I suspect that, as in this House, they are used by and large on Bills of no political controversy. It is the Bills of political controversy that most need good scrutiny and good provision.
However, as I indicated, for the moment I beg leave to withdraw the amendment, but I hope that the Government will reflect on their argument and will consider withdrawing Clause 34.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 249 not moved.]
§ 7.16 p.m.
§ On Question, Whether Clause 34 shall stand part of the Bill?
§ Their Lordships divided: Contents, 99; Not-Contents, 83.1408
|Division No. 2|
|Allenby of Megiddo, V.||Grantchester, L.|
|Alli, L.||Gregson, L.|
|Amos, B.||Grenfell, L.|
|Ampthill, L.||Hardie, L.|
|Archer of Sandwell, L.||Hardy of Wath, L.|
|Ashley of Stoke, L.||Haskel, L.|
|Bach, L.||Hogg of Cumbernauld, L.|
|Barnett, L.||Howie of Troon, L.|
|Bassam of Brighton, L.||Hoyle, L. [Teller.]|
|Berkeley, L.||Hughes, L.|
|Blackstone, B.||Hunt of Kings Heath, L.|
|Blyth, L.||Irvine of Lairg, L. [Lord Chancellor.]|
|Brooks of Tremorfa, L.||Islwyn, L.|
|Burlison, L.||Janner of Braunstone, L.|
|Carter, L. [Teller.]||Jay of Paddington, B.|
|Castle of Blackburn, B.||Jeger, B.|
|David, B.||Judd, L.|
|Davies of Coity, L.||Kennedy of The Shaws, B.|
|Davies of Oldham, L.||Kirkhill, L.|
|Dean of Beswick, L.||Levy, L.|
|Dean of Thornton-le-Fylde, B.||Lockwood, B.|
|Desai, L.||Lofthouse of Pontefract, L.|
|Dixon, L.||McIntosh of Haringey, L.|
|Donoughue, L.||Mackenzie of Framwellgate, L.|
|Dormand of Easington, L.||Mallalieu, B.|
|Dubs, L.||Merlyn-Rees, L.|
|Eatwell, L.||Milner of Leeds, L.|
|Evans of Parkside, L.||Monkswell, L.|
|Falconer of Thoroton, L.||Montague of Oxford, L.|
|Farrington of Ribbleton, B.||Morris of Manchester, L.|
|Gallacher, L.||Nicol, B.|
|Gilbert, L.||Orme, L.|
|Gordon of Strathblane, L.||Pitkeathley, B.|
|Goudie, B.||Ponsonby of Shulbrede, L.|
|Gould of Pottemewton, B.||Puttnam, L.|
|Graham of Edmonton, L.||Ramsay of Cartvale, B.|
|Randall of St. Budeaux, L.||Strabolgi, L.|
|Rea, L.||Symons of Vernham Dean, B.|
|Rendell of Babergh, B.||Taylor of Gryfe, L.|
|St. John of Bletso, L.||Thomas of Macclesfield, L.|
|Sefton of Garston, L.||Thornton, B.|
|Sewel, L.||Turner of Camden, B.|
|Shore of Stepney, L.||Uddin, B.|
|Simon, V.||Varley, L.|
|Simon of Highbury, L.||Walker of Doncaster, L.|
|Simpson of Dunkeld, L.||Watson of Invergowrie, L.|
|Smith of Gilmorehill, B.||Whitty, L.|
|Stoddart of Swindon, L.||Williams of Mostyn, L.|
|Stone of Blackheath, L.||Young of Old Scone, B.|
|Aldenham, L.||Linklater of Butterstone, B.|
|Aldington, L.||Ludford, B.|
|Alexander of Tunis, E.||Lyell, L.|
|Astor, V.||Mackay of Ardbrecknish, L.|
|Balfour, E.||Mackay of Drumadoon, L.|
|Blatch, B.||Mackie of Benshie, L.|
|Brabazon of Tara, L.||Mar and Kellie, E. [Teller.]|
|Brentford, V.||Massereene and Ferrard, V.|
|Cadman, L.||Minto, E.|
|Calverley, L.||Montrose, D.|
|Carlisle, E.||Mountevans, L.|
|Carlisle of Bucklow, L.||Mowbray and Stourton, L.|
|Carnegy of Lour, B.||Munster, E.|
|Chesham, L.||Napier and Ettrick, L.|
|Clement-Jones, L.||Newby, L.|
|Coleraine, L.||Nicholson of Winterbourne, B.|
|Colwyn, L.||Park of Monmouth, B.|
|Cope of Berkeley, L.||Pilkington of Oxenford, L.|
|Darcy de Knayth, B.||Rankeillour, L.|
|Dartmouth, E.||Razzall, L.|
|Denham, L.||Rees, L.|
|Dholakia, L.||Renton, L.|
|Dixon-Smith, L.||Rodgers of Quarry Bank, L.|
|Dundonald, E.||Rowallan, L.|
|Effingham, E.||Russell, E.|
|Ellenborough, L.||Ryder of Warsaw, B.|
|Fraser of Carmyllie, L.||Saltoun of Abernethy, Ly.|
|Glasgow, E.||Sanderson of Bowden, L.|
|Gray of Contin, L.||Seccombe, B.|
|Hamilton of Dalzell, L.||Selkirk of Douglas, L.|
|Hampton, L.||Sempill, L.|
|Hamwee, B.||Steel of Aikwood, L.|
|Hooson, L.||Stodart of Leaston, L.|
|Howell of Guildford, L.||Strange, B.|
|Hunt of Wirral, L.||Thomas of Gresford, L. [Teller.]|
|Hylton, L.||Thomson of Monifieth, L.|
|Jopling, L.||Thurso, V.|
|Kingsland, L.||Tordoff, L.|
|Kintore, E.||Ullswater, V.|
|Lang of Monkton, L.||Weir, V.|
|Lawrence, L.||Wilcox, B.|
§ Resolved in the affirmative, and clause agreed to accordingly.
§ 7.25 p.m.
§ Baroness Ramsay of Cartvale
I beg to move that the House do now resume and that the Committee stage begins again not before 8.25 p.m.
§ Moved accordingly and, on Question, Motion agreed to.
§ House resumed.