Scotland Bill

HL Deb 02 November 1998 vol 594 cc92-132

Consideration of amendments on Report resumed.

Lord Mackay of Drumadoon moved Amendment No. 191B:

After Clause 93, insert the following new clause—

REDUCTION OR SUSPENSION OF PROVISION OF ACT OF SCOTTISH PARLIAMENT

(" .—(1) This section applies to proceedings in which the party who raises the proceedings seeks an order for reduction or suspension (or other like order) of any provision of an Act of the Scottish Parliament or subordinate legislation made, confirmed or approved by a member of the Scottish Executive.

(2) Proceedings to which this applies may only be brought in an appropriate court or tribunal.

(3) In subsection (2) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and "proceedings" includes a counterclaim or similar proceeding.

(4) In subsection (3) "rules" means—

1. (a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the 93 Secretary of State for the purposes of this section or rules of court;
2. (b) in relation to proceedings before a court or tribunal in Scotland, rules made for the purposes of this section;
3. (c) in relation to proceedings before a tribunal in Northern Ireland—
   1. (i) which deals with transferred matters, and
   2. (ii) for which no rules made under paragraph (a) are in force,
   rules made by a Northern Ireland department for those purposes; and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.").

The noble and learned Lord said: My Lords, this amendment seeks to insert a new clause into the Bill. It seeks to address a concern expressed by the Faculty of Advocates in a memorandum submitted to the Government some time ago and upon which I have already commented.

The purpose of the amendment is to create rule-making powers which would entitle either the Lord Chancellor or Secretary of State in England or Wales, the First Minister in Scotland or the procedure set out for Northern Ireland in subsection (4)(c) of the new clause to lay down the courts or tribunals in which there should be vested a power to reduce, suspend or otherwise set aside any provision of an Act of the Scottish parliament or any subordinate legislation made, confirmed or approved by a member of the Scottish parliament.

In a memorandum submitted to the Government, the Faculty of Advocates said that the then Clause 93 of the Bill could cause confusion as to the forum appropriate for the challenging of administrative acts and could restrict the scope envisaged by Clause 93(2). The Faculty said: Legislation of the Scottish Parliament may be relevant in both England and Scotland and may affect considerable numbers of persons or businesses. It is therefore important that decisions taken in relation to the vires of legislation be consistent and be taken by courts of appropriate authority in each jurisdiction".

Referring to the position in Scotland, it said: Having such decisions taken only by the Court of Session within this jurisdiction would promote this interest. It is inherently undesirable that all minor courts and all tribunals should have the power to quash the proceedings of the Scottish parliament". The Faculty went on to recommend that the Bill be amended. Dealing with the situation in Scotland, it suggested, that the power to declare the invalidity of administrative acts and legislation (including those of the Scottish parliament and the Scottish Executive) should remain vested in the Court of Session. The Bill should be amended to indicate that where such matters are raised in proceedings before any other court or tribunal in Scotland, it is appropriate either that the matter be transferred to the Court of Session or that the cause be sisted pending one of the parties presenting an action in the Court of Session seeking the reduction of the relevant legislation. Similar provisions should be introduced relating to the jurisdiction of the English courts and obviously other courts of the United Kingdom.

The amendment is designed to make it possible for there to be some control over which courts should exercise a jurisdiction to reduce or otherwise set aside Acts of the Scottish parliament in subordinate legislation. The amendment would not necessarily limit parties in the lower courts in raising devolution issues whether they did so as pursuer or plaintiff in an action or the defender and defendant. But it would prevent the lower courts from pronouncing orders that courts should set aside the Acts of the Scottish parliament or subordinate legislation, assuming that the rule-making power was exercised in the way which I and the Faculty of Advocates believe it should be; namely, reserving such important issues to the higher courts. I beg to move.

Lord Hardie

My Lords, the amendment seeks to define the appropriate court or tribunal for proceedings seeking the order for reduction or suspension of an Act of the Scottish parliament or subordinate legislation. In that regard, its intention is similar to the amendment we discussed before the dinner break.

In speaking to the previous amendment, I explained that it would be wrong to make such a provision in the Scottish Bill. Schedule 6 provides that questions of whether the exercise of a function by a member of the Scottish executive or a failure to act is incompatible with the convention rights in a devolution issue. With one exception, it is not intended to specify the courts or tribunals in which devolution issues may be raised.

The appropriate forum will depend upon the ordinary law as to what proceedings can competently be brought before a court or tribunal. For example, if it is competent only to bring an action of reduction in the Court of Session that action would still be competent only in the Court of Session. On the other hand, if an action is competent in another court it would be appropriate to raise devolution issues in that context.

We do not consider that it would be appropriate to provide that devolution issues can be raised only in the Court of Session because Schedule 6 provides for a fast track procedure for the law officers to raise matters directly with the Judicial Committee of the Privy Council. That provision has no counterpart in the Human Rights Bill.

Furthermore, the amendment does not have the effect of bringing the provisions in the Scotland Bill into line with the Human Rights Bill because they contain no counterpart to Clause 7(1)(b) of that Bill entitling a person to rely upon convention rights in any legal proceedings before any court or tribunal. With that explanation, I invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon

My Lords, I am grateful to the noble and learned Lord for explaining the Government's position in response to the concern I raised. I do not see the amendment as being concerned with making the terms of the Scotland Bill compatible with the provisions of the Human Rights Bill. That was an objective of a previous amendment.

I framed the amendment and brought it before the House in order to meet the concern raised by the Faculty of Advocates as to whether it is appropriate that the sheriff court should have power in Scotland—and no doubt the lower civil courts in other parts of the United Kingdom—to reduce, suspend or cost, or whatever other form of order may be competent, the Acts of the Scottish parliament and its elected members.

The noble and learned Lord the Lord Advocate will be aware that actions of reduction are not competent in the sheriff court. However, as a defence to an action raised in the sheriff court it is open to a defender to have a document reduced ope exceptionis. That would apply to an Act of the Scottish parliament or a provision of subordinate legislation made, confirmed and approved by a member of the Scottish executive. It seems to me that the Faculty has a point and therefore I seek to test the opinion of the House.

8.45 p.m.

On Question, Whether the said amendment (No. 191B) shall be agreed to?

Their Lordships divided: Contents, 46; Not-Contents, 95.

Division No. 2
CONTENTS
Alton of Liverpool, L.	Leigh, L.
Annaly, L.	Lindsay, E.
Attlee, E. [Teller.]	Lyell, L.
Baker of Dorking, L.	Mackay of Ardbrecknish, L.
Balfour, E.	Mackay of Drumadoon, L.
Blaker, L.	Marlesford, L.
Blatch, B.	Masham of Ilton, B.
Brougham and Vaux, L.	Monro of Langholm, L.
Byford, B. [Teller.]	Northbrook, L.
Campbell of Alloway, L	Northesk, E.
Carnegy of Lour, B.	Palmer, L.
Carr of Hadley, L.	Park of Monmouth, B.
Chesham, L.	Renton, L.
Cope of Berkeley, L.	Rowallan, L.
Craigavon, V.	St. John of Fawsley, L.
Crathorne, L.	Saltoun of Abernethy, Ly.
Dixon-Smith, L.	Selkirk of Douglas, L.
Fookes, B.	Sempill, L.
Gardner of Parkes, B.	Skelmersdale, L.
Gisborough, L.	Stair, E.
Harris of Peckham, L.	Sudeley, L.
HolmPatrick, L.	Waddington, L.
Kingsland, L.	Wilcox, B.

NOT-CONTENTS
Acton, L.	Davies of Coity, L.
Addington, L.	Dean of Beswick, L.
Ahmed, L.	Dixon, L.
Alderdice, L.	Donoughue, L.
Alli, L.	Dormand of Easington, L.
Amos, B.	Eatwell, L.
Archer of Sandwell, L.	Evans of Parkside, L
Bach, L.	Falconer of Thoroton, L.
Bassam of Brighton, L.	Falkland, V.
Blackstone, B.	Farrington of Ribbleton, B.
Blease, L.	Gallacher, L.
Borrie, L.	Gilbert, L.
Bragg, L.	Gordon of Strathblane, L.
Brooks of Tremorfa, L.	Goudie, B.
Burlison, L.	Grenfell, L.
Carlisle, E.	Hacking, L.
Carmichael of Kelvingrove, L.	Hardie, L.
Carter, L. [Teller.]	Hardy of Wath, L.
Chandos, V.	Haskel, L.
Christopher, L.	Hilton of Eggardon, B.
Clarke of Hampstead, L.	Hollis of Heigham, B.
Crawley, B.	Howie of Troon, L.
David, B.	Hoyle, L.

Hughes of Woodside, L.	Phillips of Sudbury, L.
Hunt of Kings Heath, L.	Pitkeathley, B.
Islwyn, L.	Ramsay of Cartvale, B.
Janner of Braunstone, L.	Randall of St. Budeaux, L.
Jay of Paddington, B. [Lord Privy Seal.]	Rendell of Babergh, B.
	Renwick of Clifton, L.
Linklater of Butterstone, B.	Sawyer, L.
Lockwood, B.	Scotland of Asthal, B.
Lofthouse of Pontefract, L.	Sefton of Garston, L.
McCarthy, L.	Sewel, L.
Macdonald of Tradeston, L.	Simon, V.
McIntosh of Haringey, L. [Teller.]	Strabolgi, L.
	Symons of Vernham Dean, B.
Mackenzie of Framwellgate, L.	Taylor of Blackburn, L.
Mackie of Benshie, L.	Thomas of Macclesfield, L.
Mackie of Benshie, L.	Thomson of Monifieth, L.
Maddock, B.	Thornton, B.
Mallalieu, B.	Thurso, V.
Mar and Kellie, E.	Tomlinson, L.
Milner of Leeds, L.	Tordoff, L.
Monkswell, L.	Uddin, B.
Morris of Castle Morris, L.	Varley, L.
Nicholson of Winterbourne, B.	Warner, L.
Nicol, B.	Whitty, L.
Orme, L.	Williams of Mostyn, L.
Perry of Walton, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

8.54 p.m.

Clause 94 [Legislative power to remedy ultra vires acts]:

Lord Mackay of Drumadoon moved Amendment No. 191C: Page 43, line 29, leave out ("or expedient").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak to Amendments Nos. 191D, 191E and 202YA. These are small drafting amendments which seek to delete certain words in Clauses 94 and 97. In Clause 94 they seek to delete the words "or expedient" in line 29 and the words "or may not be" as they appear in paragraphs (a) and (b).

The order-making powers in Clauses 94 and 97, to which the fourth of the amendments is directed, should be used only when necessary and when an Act of the Scottish parliament or a provision of an Act of the Scottish parliament or any purported exercise by a member of the Scottish Executive of his functions is outwith competence or not a proper exercise of function. It should not be competent for these powers to be used, as the Bill currently would allow, where it is just a question of expediency or, under Clause 94, where there is doubt as to whether or not the Act of the Scottish Parliament or the provision of an Act of the Scottish Parliament is within legislative competence or where there is doubt as to whether or not the member of the Scottish Executive has acted within his executive functions.

Such order-making powers may be necessary. I accept that there may be circumstances where it is necessary for such a power to exist and that it should be used, but I do not accept that that should occur in the circumstances that are currently permitted. I beg to move.

Lord Hardie

My Lords, the Government cannot accept Amendments Nos. 191C and 202YA. With these amendments the noble and learned Lord is seeking to remove the words "or expedient" from Clauses 94 and 97 which provide for the making of subordinate legislation, subject to procedure in this Parliament, in certain circumstances. The noble and learned Lord's amendments would restrict the circumstances in which such subordinate legislation could be made.

The powers in Clauses 94 and 97 are consequential powers and in both cases the Government consider that the right test is whether such legislation is necessary or expedient. I appreciate that the noble and learned Lord does not take issue with the word "necessary" but there is a question as to whether it is appropriate to include the alternative of expediency. We see those words as essential to ensure that these consequential powers may be exercised in appropriate circumstances.

The degree of flexibility provided by Clauses 94 and 97 is important. It would be difficult to demonstrate in all but a narrow range of cases that subordinate legislation was absolutely necessary.

There will be instances where it would indeed be expedient, but not necessary, for subordinate legislation to be made. For example, under Clause 94, an Act of the Scottish parliament might be found to be ultra vires and subordinate legislation could be used to address the situation concerning rights or liabilities. It might not be absolutely necessary that such provision was made, but it would be expedient.

Equally, the Government cannot support Amendments Nos. 191D and 191E which would restrict when the power in Clause 94 could be exercised. We think that it is important that the order-making power can be used if there is a suspected defect in an Act or the action of a member of the Scottish executive. To do otherwise would make it necessary for a court to rule that a provision or action is ultra vires. However, we want to ensure that remedying action can be taken before that event and may even avoid unnecessary judicial proceedings. I can understand why lawyers might be keen to have unnecessary judicial proceedings, wearing their other hats as practising lawyers, but that does not make good sense. I am sure that this power will be exercised with caution and only where there is a good degree of certainty that something really is ultra vires. I hope that the noble and learned Lord can withdraw the amendment.

Lord Mackay of Drumadoon

My Lords, I intend to do that very thing. I am quite sure that the noble and learned Lord did not think that I was wishing to be obstructive in unnecessary legal proceedings; there are more than enough necessary legal proceedings to keep me and my colleagues well occupied.

I accept the force of what the noble and learned Lord the Lord Advocate said: it may have the effect of reducing the amount of litigation. That is one of the themes to which I have returned on more than one occasion in these debates and I am therefore happy to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

[Amendments Nos. 191D to 191F not moved.]

Lord Hardie moved Amendment No. 191G: Transpose Clause 94 to after Clause 99.

The noble and learned Lord said: My Lords, this is a formal amendment to transpose Clause 94 to after Clause 99. It is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 192:

After Clause 94, insert the following new clause—

INTERPRETATION OF ACTS OF THE SCOTTISH PARLIAMENT ETC

(".—(1) This section applies to—

1. (a) any provision of an Act of the Scottish Parliament, or of a Bill for such an Act, and
2. (b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a member of the Scottish Executive,

which could be read in such a way as to be outside competence.

(2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible. and is to have effect accordingly.

(3) In this section, "competence"—

1. (a) in relation to an Act of the Scottish Parliament, or a Bill for such an Act, means the legislative competence of the Parliament, and
2. (b) in relation to subordinate legislation, means the powers conferred by virtue of this Act.").

On Question, amendment agreed to.

[Amendment No. 192A not moved.]

Lord Mackay of Drumadoon moved Amendment No. 192B:

After Clause 94, insert the following new clause—

FREEDOM OF SPEECH

(" .—(1) In the Bill of Rights, there shall be inserted at the end of Article IX (freedom of speech) the words "; and in this Article, "Parlyament" shall include the Scottish Parliament".

(2) In the Claim of Right Act 1689, there shall be inserted at the end of Article XXV the words "of those Parliaments (including the Scottish Parliament)".").

The noble and learned Lord said: My Lords, in speaking to this amendment I shall speak also to Amendment No. 192D. It raises the issue of parliamentary privilege which was one of the subjects which we debated late in the night on the ninth day of Committee.

As I explained on that occasion, the objective of the amendments dealing with parliamentary privilege is to place the Scottish parliament, so far as is possible, on the same footing as the Westminster Parliament as regards the extent to which the courts will investigate how and why Parliament has acted in the way it has, in particular in the passing of legislation.

In moving these amendments, perhaps it may be helpful to make clear a number of matters. Nothing in the amendments is intended to interfere in any way with the jurisdiction which the courts and tribunals of the United Kingdom will have to determine devolution issues as they are defined in paragraph 1 of Schedule 6 and as they arise from time to time in proceedings which come before courts and tribunals.

The first of the amendments was drafted with considerable assistance from senior Clerks in the Public Bill Office, for which I am extremely grateful. Amendment No. 192 is based on Section 26(1) of the Northern Ireland Constitution Act 1973.

In a number of places, the Bill already seeks to protect freedom of speech and the freedom of the Scottish parliament to regulate its own affairs; for example, in Section 21 and Schedule 3, we have powers to make standing orders which are to some extent constrained by certain prescriptions written into the Bill but which are primarily left to the parliament itself to determine. We have Clause 27(5), which was amended last week by Amendment No. 112, when the noble Lord, Lord Sewel, explained to your Lordships that the purpose of the new subsection was to prevent the validity of Acts of the Scottish parliament being challenged on arguments directed to the fact that standing orders had not been followed properly or on any other procedural grounds which suggested that a procedural rule of the parliament had not been adhered to. But that was as far as I understood Clause 27(5) to go.

Clause 37 accords to the new parliament, for the purposes of the law on defamation, the absolute privilege to any statement made in proceedings of the parliament and the publication under the authority of the parliament of any statement. As I understand it, that would cover not only members of the new parliament but any individuals who may be called to give evidence or provide information to committees of that parliament during its formal proceedings.

A number of other amendments have been brought forward helpfully by the Government seeking to exclude challenges based on any defects in the election or appointment of particular office holders or members of the Scottish executive. I very much welcome those amendments.

Notwithstanding those provisions, I remain concerned that the Scottish parliament will not enjoy the same privilege as this Parliament. I understand that to be acknowledged by the Government because on more than one occasion the Minister has referred to that fact. Indeed, in a letter dated 16th October of this year, he wrote to my noble friend Lord Mackay of Ardbrecknish. The noble Lord, Lord Sewel, said: During debates in Committee on the extent of the Scottish Parliament's privilege I indicated that we were actively considering the matter. We have concluded that we cannot justify attempting to mirror Westminster privileges. Those privileges are very wide ranging and, in certain respects, apply for largely historical reasons. Instead, we consider it more appropriate to protect the Parliament in the same way as the Crown". He then went on to discuss a number of the amendments which the Government have brought forward, I repeat, very helpfully, at this stage.

In his letter, the noble Lord, Lord Sewel, did not explain why the Government had concluded that they could not justify attempting to mirror Westminster privileges. As he rightly says, those privileges are wide-ranging and it is certainly true that they have a long history. That is obvious from the fact that in my amendments I have referred to the Bill of Rights and the Claim of Right Act 1689 which are understood to found the privileges which this Parliament enjoys.

It is my position that if the Government are not prepared to accord the Scottish parliament the same privileges as the Westminster Parliament, they should explain why that is so. I believe—and my view is shared by many others—that in Scotland at least the voters who vote for members of the new parliament and, after the parliament is elected and sets about its business, the population at large will wish to treat primary legislation coming out of the Scottish parliament, in the form of Acts of the Scottish parliament, in exactly the same way as they treat legislation coming out of Westminster.

It may be that in law and in constitutional theory there are differences between the two forms of legislation, and no doubt constitutional lawyers can spend many hours discussing the reasons for and legal consequences of those differences. But the man in the street will treat them the same and therefore, if at all possible, the courts should be encouraged and indeed constrained to treat them the same.

It may help if I explain why this matter should be dealt with in this Bill rather than left to the Scottish parliament itself. I believe that the definition of the legislative competence of the Scottish parliament which is to be found in Clause 28 of the Bill would not permit the Scottish parliament to pass any Act which would bind courts in any part of the United Kingdom other than Scotland to accord its legislation privilege similar to the privilege attached to legislation coming from Westminster. Therefore, if this matter is to be addressed, it must be addressed in legislation enacted at Westminster and this seems to me to be the appropriate time at which to look at the issue.

Perhaps I may give one or two examples of the kind of challenge that I wish to exclude. One would be an attempt to investigate whether or not an Act of the Scottish parliament had been obtained by some fraud, deception or other improper motive either on the part of a member of the parliament itself or a member of the public who had been involved in lobbying parliament or in placing information before its members. A second example may be an attempt to demonstrate that an Act of the Scottish parliament had been passed by the parliament on the basis of a perfectly genuine but completely inaccurate understanding of the relevant facts.

Those are not fanciful examples. In comparatively recent cases which have come before either the Appellate Committee of your Lordships' House or the Judicial Committee of the Privy Council, those issues have arisen. In the case of British Railways Board and another v. Pickin in 1974 the speech of Lord Morris of Borth-y-Gest explained in comparatively short form what the privileges of this Parliament are designed to achieve. He said, It must surely he for Parliament to lay down the procedures which are to be followed before a bill can become an Act". The Government accept that for the Scottish parliament. He went on, It must be for Parliament to decide whether its decreed procedures have in fact been followed". The same applies to the Scottish parliament. The speech continues, It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders".

The Government accept all of that in relation to the Scottish parliament, but Lord Morris went on to say this: It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark on an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed". That arose in proceedings designed to challenge the validity of a private Act of Parliament. In another case of Prebble v. Television New Zealand Limited in 1994 the Privy Council addressed a similar issue and followed the same approach.

So those are not fanciful issues, as is also confirmed by the fact that a joint committee of both Houses of Parliament, chaired by the noble and learned Lord, Lord Nicholls, is currently addressing this whole issue and has taken evidence from a number of senior judges, senior politicians and, indeed, senior officials of both Houses. It appears to be accepted in that committee's discussions that there are instances where the courts are precluded from looking behind what this Parliament has enacted. That is a starting point for its deliberations.

It is desirable that the Scottish parliament should set out on an equal footing with the Westminster Parliament. If, in the course of time, the committee of the noble and learned Lord, Lord Nicholls, reports and recommends a change in the law on a UK-wide basis, obviously the position as regards the Scottish parliament would need to be examined and altered. If there were an amendment to the privilege of this Parliament, agreed to by this Parliament, I should be content that it should be reflected in an amendment to what will then be the Scotland Act so that the Scottish parliament will be on the same basis.

I object to the fact that the Government are not prepared to mirror Westminster's privileges in the new Scottish parliament. It may not be possible to mirror them exactly, but in principle there should be no difference between the two parliaments. For those reasons, I beg to move Amendment No. 192B.

9.15 p.m.

Baroness Carnegy of Lour

My Lords, this is obviously a complex legal matter and one that I do not fully understand. Perhaps I may make a suggestion to the Minister. If he feels able to accept Amendment No. 192B, I think that would be very attractive to Scots as a whole.

I base that view on my experience. A number of years ago, I took through the House a piece of legislation, fixing term days and quarter days in Scotland. In the process, I repealed an Act of the 17th Century. When talking about the House of Lords, I have often told people about that. It interests them to know that it is possible to repeal an Act of Parliament of that date. People are very interested to hear that that can be done. In the future, people may be interested to know that this Bill inserts something about freedom of speech into two such ancient pieces of legislation, the Bill of Rights and the Claim of Right Act 1689. If something like that were to be done, it would prove of great interest to people. Perhaps such an amendment would be worth making, provided that the matter that it introduced was acceptable.

Lord Thomson of Monifieth

My Lords, like the noble Baroness, Lady Carnegy of Lour, my mind boggles at the legal complexities of this matter. I have two brief points. First, I am intrigued about the history—which is always fascinating—and about how, given that there was an independent Scottish Parliament until 1707, we can amend the Bill of Rights of the English Parliament of 1689. The historical possibility for the lawyers intrigues me.

On the main point, I am intrigued because, not for the first time in these long debates, we now have a Conservative Opposition in this House who appear to be extremely enthusiastic about increasing the status, power and privileges of a Scottish parliament, which they did their best to persuade the Scottish people to reject.

Lord Sewel

My Lords, I am well known for being generous in welcoming new converts to the cause and I shall not go down the line opened up by the noble Lord, Lord Thomson of Monifieth.

In Amendments Nos. 192B and 192D, noble Lords opposite are seeking to extend the protection of the Scottish parliament. That is a thread that has run through many of our debates. The noble and learned Lord was kind enough to point out the way in which the Government have responded to questions by taking seriously the specific points made by noble Lords opposite and trying to meet them. Now we finish up with a position where the protection afforded to the Scottish parliament, to members of the Scottish parliament and to officers of the Scottish parliament is much more explicit—in a way it is both more explicit and more general—than was the case when we first started to consider the Bill.

I do not think that there is a matter of principle between us on the need to provide effective and adequate protection for the Scottish parliament. Where we differ is in striking where the balance should be. We have considered this issue at some length in earlier debates. We believe that what is now provided in the Bill, together with the amendments proposed to Schedule 4, represent the right approach. We are not attracted by the idea of going down the route which the noble and learned Lord invites us to take.

With Amendments Nos. 192B and 192D the noble and learned Lord has made clear that he wishes to replicate completely the arrangements existing at Westminster for the Scottish parliament. The Government do not agree that that is the right approach. I am conscious that the subject of protection for the Scottish parliament is large and complex. We have made a number of amendments in response to the concerns of noble Lords that the parliament should be able to go about its business without undue interruption from the courts. We have also tabled amendments to Schedule 4 which make it clear that those parts of the Bill which deal with protection from judicial proceedings may be modified by the parliament. I believe that that balance is about right.

We have concluded that we cannot justify attempting to mirror Westminster privileges. That is why we cannot support the Opposition amendments before us tonight. The privileges enjoyed by Westminster are very wide-ranging and rooted in history, as the noble and learned Lord indicated. Some of them flow from the fact that the Parliament at Westminster is the highest court. That would be an inappropriate basis on which to draw protection and privileges for the Scottish parliament, which in no sense can act as a court.

The other problem with following the route which we have been invited to take by the Opposition is that the privileges enjoyed by Westminster are relatively ill-defined and of uncertain scope. That is partly the inevitability of the way in which they relate to the past and have been developed. We do not believe that that is the way to start when setting up the new institution. We are attracted by a different approach which is to be more explicit and precise, as far as we can, as regards protection, as well as giving the parliament itself power to pass legislation on the protection available to it. As I say, we are not attracted to the arguments put forward by the noble and learned Lord.

I can deal with the two illustrations he used to support his case in contra-distinction to that of the Government. He indicated that an Act of the Scottish Parliament may be open to challenge if it was argued that it had been obtained through fraud or deception and also that the act had been brought about by a genuine and wrong understanding of the facts.

Clause 27(5) makes it clear that the validity of an Act is not affected by any question as regards the background of the legislation. Once enacted, the legislation stands, assuming that the Act was in the competence of the parliament. So I do not see how the courts would accept a challenge on the grounds that the noble and learned Lord has indicated. That is effectively closed off by Clause 27(5), but the noble and learned Lord has a different view.

Lord Mackay of Drumadoon

My Lords, I do not want to interrupt too much, but if the noble Lord is in a position to assure me that challenges of the nature I have explained as possibilities would be covered by Clause 27(5), no one would be happier than I. I encourage the noble Lord to continue.

Lord Sewel

My Lords, I like to bring happiness wherever I can. On this occasion, I think I can give the noble and learned Lord all the happiness that he seeks. That indeed is our interpretation of the effect of Clause 27(5). So, on that happy note, I think I can conclude my remarks and invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon

Indeed so, my Lords. When earlier on I invited the noble Lord to explain what was behind Amendment No. 112, I was anxious to see whether it went of its own volition as far as we are now going. I am grateful for the noble and learned Lord's explanation which I shall read carefully. However, it does seem that to a large extent it meets my practical concerns. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 192C and 192D not moved.]

Lord Mackay of Drumadoon moved Amendment No. 192E:

After Clause 94, insert the following new clause—

COURTS NOT TO REQUIRE LEGISLATION TO BE UNDERTAKEN

(" . No court shall pronounce any order requiring a member of the Scottish Executive or a junior Scottish Minister to introduce a Bill to the Parliament or to make, confirm or approve any provision of subordinate legislation.").

The noble and learned Lord said: My Lords, this amendment seeks to introduce into the Bill after Clause 94 a new clause which would prevent any court from pronouncing an order requiring a member of the Scottish executive or a junior Scottish Minister to introduce a Bill to the parliament or to make, confirm or approve any provision of subordinate legislation.

Among the devolution issues which are defined in paragraph 1 of Schedule 6 to the Bill are questions as to whether a purported or proposed exercise of a function by a member of the Scottish executive is or would be incompatible with any of the Convention rights or with Community law and whether a failure to act by a member of the Scottish executive is incompatible with any of the Convention rights or with Community law. For these reasons, I can see that it is possible that in proceedings which are raised before the courts, and in particular before the Scottish courts, an order may be sought requiring a member of the Scottish executive or a junior Scottish Minister to act along the lines set out in the amendment.

I fully accept, because they are devolution issues, that the courts will require to rule on whether the acts or omissions of members of the Scottish executive or junior Ministers have been in accordance with their statutory duties under the Bill. I therefore have no objection to the courts having power to grant declarators to that effect. However, my concern arises in these circumstances. If in an action at the instance of the United Kingdom Government, acting no doubt through one of its Secretaries of State, the court is asked to order a member of the Scottish executive to act in a way that previously he had been unwilling to act, the court would inevitably be drawn into further controversy. No doubt the decision as to whether to grant such an order would be one on which the court would have a discretion. Quite how it would go about seizing itself of the necessary information before it exercised discretion is not entirely obvious to me. But whether or not it makes the order, the very fact that it is asked to make the order could give rise to avoidable controversy.

On more than one occasion Ministers have encouraged us to accept that members of the Scottish executive and junior Scottish Ministers will act in a responsible manner. For my part, I should like to believe that the Government's faith in these future appointees is well founded. I see no reason why it should not be. However, there will be times when people acting perfectly genuinely take a different view from Ministers of the United Kingdom Government and may feel that they are acting perfectly responsibly. I believe that they should be left to make up their own minds as to what to do if a court grants a declarator that they have acted outwith their powers, or that they have failed to act in a manner in which the statutory duties upon them require them to act. Therefore, I do not think that the courts should have the power to go beyond the granting of an order in the same way as the Government, in an earlier amendment which was dealt with on Report, accepted that the courts should not have the power to grant similar orders against the parliament. I beg to move.

9.30 p.m.

Lord Hardie

My Lords, the amendment is unnecessary. The answer to it is the Crown Proceedings Act 1947, which prevents the court from making an order for specific performance against the Crown. The Scottish Executive will be part of the Crown. Accordingly, I invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon

My Lords, I am grateful to the noble and learned Lord for making the position clear. If the answer is as short and as obvious as the response that has just been given, perhaps I should have known it before. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 192F:

After Clause 94, insert the following new clause—

CRIMINAL PROCEEDINGS: PROCEDURE WHERE LEGISLATION IS ULTRA VIRES

(" .—(1) This section applies where in criminal proceedings a court decides that—

1. (a) an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or
2. (b) a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve.

(2) When a court reaches any decision to which this section applies, it, and any inferior court bound by its decision, shall take account of and act upon any such decision in the conduct of the criminal proceedings in which the decision was made.").

The noble and learned Lord said: My Lords, we debated this matter in Committee on 8th October. I explained then my position on the amendment at some length and, therefore, I need not repeat in great detail what was said on that occasion. My concern basically was that if, in the course of criminal proceedings, it becomes obvious that there is a valid challenge to either a provision of primary legislation or subordinate legislation upon which a criminal prosecution proceeds, that should be the end of the matter. The court should decide the effect that that successful challenge has on the proceedings and either bring them to a halt or proceed depending upon what view the trial judge takes as to the effect that the invalid provision may have.

In the speech that I made on the last occasion I said that there might be two instances where such a problem might arise. The first is where it in some way justified a successful challenge to the competency of the charge which a particular accused was required to face in criminal proceedings. The second instance was where such an issue affected the admissibility of any evidence upon which the Crown intended to rely. I sought to contrast the situation with what will arise in civil proceedings where, possibly, different considerations may apply.

It is fair to say that, in his reply, the noble and learned Lord the Lord Advocate did not come up with any concrete example as to where it would be appropriate for the criminal court to have the discretionary powers set out in Clause 95, as it now is. In particular, that applies to the discretionary powers to make an order removing or limiting any retrospective effect of the decision or suspending the effect of the decision for any period or on any conditions to allow the defect to be corrected. However, the noble and learned Lord did suggest that there may be exceptional cases where it is appropriate for the court to say: Well, there is a defect here but it is a fairly technical matter. it is in the interests of justice that the opportunity be given to remedy it". The noble and learned Lord then went on to say: It is that very exceptional situation that the clause is intended to address. Clearly the clause is mainly directed toward civil cases where people have acted upon certain legislation to their prejudice".—[Official Report, 8/10/98; col. 597.] On that occasion the noble and learned Lord clearly took a similar line to the one which I take; namely, that other considerations may apply in civil proceedings.

I have considered the matter carefully since 8th October to see whether it is possible to identify exceptional cases where it would be appropriate in civil proceedings for a criminal court to have such discretionary powers. I have been unable to identify any case where that would be appropriate and for that reason I have brought forward this amendment again. I beg to move.

Lord Hardie

My Lords, the position of the Government is the same as it was in Committee. When we considered the matter at that time the noble and learned Lord voiced his concerns about the effect of the provision in criminal cases. He could see few reasons why it was appropriate to allow the courts this power in criminal cases. He feared that by giving them this power we risked their exercising the power in a way which might breach convention rights. I said that clearly in criminal cases the power would be exercised, and be exercisable, only in exceptional cases. The very nature of exceptional cases is such that it is difficult to imagine what they would be because they are exceptional.

I understand the noble and learned Lord's concerns but I do not think that his amendment provides us with an appropriate solution. I take comfort from the fact that the noble and learned Lord, Lord Hope of Craighead, argued on a previous occasion that this matter should be left to the discretion of the courts. The courts will not use this power lightly. On that occasion the noble and learned Lord thought—he is not present at this stage this evening—that the provision as framed was appropriate. Accordingly I invite the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon

My Lords, since the previous occasion on which we discussed this matter I have considered what the noble and learned Lord, Lord Hope, said. However, he, like the noble and learned Lord the Lord Advocate, could not identify an exceptional case. I have thought carefully about the matter and I intend to insist on the amendment.

9.36 p.m.

On Question, Whether the said amendment (No. 192F) shall be agreed to?

Their Lordships divided: Contents, 37; Not-Contents, 87.

Division No. 3
CONTENTS
Annaly, L.	Gisborough, L.
Archer of Weston-Super-Mare, L.	Harris of Peckham, L.
Attlee, E. [Teller.]	Kingsland, L.
Blatch, B.	Leigh, L.
Brougham and Vaux, L.	Lindsay, E.
Byford, B.	Lyell, L.
Carnegy of Lour, B.	Mackay of Ardbrecknish, L. [Teller.]
Carr of Hadley, L.
Chesham, L.	Mackay of Drumadoon, L.
Dixon-Smith, L.	Monro of Langholm, L.
Dundee, E.	Montrose, D.
Gardner of Parkes, B.	Northbrook, L.

Northesk, E.	Selkirk of Douglas, L.
Palmer, L.	Sempill, L.
Park of Monmouth, B.	Skelmersdale, L.
Renton, L.	Stair, E.
Rowallan, L.	Sudeley, L.
St. John of Fawsley, L.	Wharton, B.
Saltoun of Abernethy, Ly.	Windlesham, L.

NOT-CONTENTS
Acton, L.	Hunt of Kings Heath, L.
Addington, L.	Islwyn, L.
Ahmed, L.	Jay of Paddington, B. [Lord Privy Seal]
Alderdice, L.
Alli, L.	Linklater of Butterstone, B.
Amos, B.	Lockwood, B.
Archer of Sandwell, L.	Lofthouse of Pontefract, L.
Bach, L.	McCarthy, L.
Bassam of Brighton, L.	Macdonald of Tradeston, L.
Berkeley, L.	McIntosh of Haringey, L. [Teller.]
Blackstone, B.
Blease, L.	Mackenzie of Framwellgate, L.
Borrie, L.	Mackie of Benshie, L.
Bragg, L.	Mallalieu, B.
Brooks of Tremorfa, L.	Mar and Kellie, E.
Burlison, L.	Milner of Leeds, L.
Carlisle, E.	Monkswell, L.
Carmichael of Kelvingrove, L.	Morris of Castle Morris, L.
Carter, L. [Teller.]	Orme, L.
Chandos, V.	Phillips of Sudbury, L.
Christopher, L.	Pitkeathley, B.
Clarke of Hampstead, L.	Ramsay of Cartvale, B.
Crawley, B.	Randall of St. Budeaux, L.
	Razzall, L.
Davies of Coity, L.	Rendell of Babergh, B.
Dean of Beswick, L.	Renwick of Clifton, L.
Dixon, L.	Sawyer, L
Donoughue, L.	Scotland of Asthal, B.
Dormand of Easington, L.	Sefton of Garston, L.
Evans of Parkside, L.	Sewel, L.
Falconer of Thoroton, L.	Simon, V.
Farrington of Ribbleton, B.	Symons of Vernham Dean, B.
Gallacher, L.	Taylor of Blackburn, L.
Gordon of Strathblane, L.	Thomas of Macclesfield, L.
Goudie, B.	Thomson of Monifieth, L.
Grenfell, L.	Thornton, B.
Hacking, L.	Thurso, V.
Hardie, L.	Tomlinson, L.
Hardy of Wath, L.	Tordoff, L.
Haskel, L.	Uddin, B.
Hilton of Eggardon, B.	Varley, L.
Hollis of Heigham, B.	Warner, L.
Howie of Troon, L.	Whitty, L.
Hoyle, L.	Williams of Mostyn, L.
Hughes of Woodside, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

9.45 p.m.

Clause 95 [Powers of courts or tribunals to vary retrospective decisions]:

[Amendments Nos. 192G to 192L not moved.]

Clause 96 [The Judicial Committee]:

[Amendments Nos. 193 to 199 not moved.]

Lord Selkirk of Douglas moved Amendment No. 200:

Page 45, line 4, at end insert— ("(d) provide such resources to the Judicial Committee as Her Majesty considers necessary or expedient.").

The noble Lord said: My Lords, the amendment makes provision for adequate resources to be made available to the Judicial Committee so that it can properly meet its responsibilities under Clause 94. No provision is made in the Bill for adequate resources to be made available to the Judicial Committee to deal with devolution issues. I should be grateful to hear the Minister's view as to whether an amendment along these lines is necessary.

Lord Sewel

My Lords, the noble Lord's amendment is very similar to one tabled by the noble Earl, Lord Mar and Kellie, at an earlier stage of the Bill. I should like to reassure the noble Lord, as I hope I reassured the noble Earl, that the amendment is entirely unnecessary. I agree that it is important that the Judicial Committee should have sufficient resources to carry out its duties properly. There is no need to prescribe that on the face of the Bill. The Government of the day will, of course, want to make sure that the Judicial Committee is properly resourced, as is the case currently. I have now given that assurance for the second time.

Perhaps I may take the opportunity to reply to a point raised by the noble and learned Lord, Lord Mackay of Drumadoon, when we discussed this matter earlier. He asked whether members are paid for sitting on the committee. I should like to reassure him that they are. Retired judges and Lords of Appeal in Ordinary are paid a daily rate of £622 before tax if they sit on the board of the Judicial Committee. It is considered to be part of the duties of serving Lords of Appeal in Ordinary. We would expect expenses incurred to be reimbursed—for example, if the Judicial Committee sat in Edinburgh.

On that basis, perhaps the noble Lord would feel able to withdraw his amendment.

Lord Mackay of Drumadoon

My Lords, before my noble friend indicates his intention, I thank the noble Lord for the additional information which he has given. I am sure that it will be of great interest to those who will, in the fullness of time, be qualified to sit on the Judicial Committee.

Lord Sewel

My Lords, it may perhaps be of even more interest to those who are not qualified to sit on the Judicial Committee.

Lord Selkirk of Douglas

My Lords, I am grateful to the Minister for his assurance, in the light of which I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 201 and 202 not moved.]

Clause 97 [Power to make provision consequential on Acts of the Scottish Parliament]:

[Amendment No. 202YA not moved.]

Baroness Ramsay of Cartvale moved Amendment No. 202ZA:

Page 45, line 11, at end insert ("or made by legislation mentioned in subsection (2).

(2) The legislation is subordinate legislation under an Act of Parliament made by—

1. (a) a member of the Scottish Executive,
2. (b) a Scottish public authority with mixed functions or no reserved functions, or
3. (c) any other person (not being a Minister of the Crown) if the function of making the legislation is exercisable within devolved competence.").

The noble Baroness said: My Lords, in view of the earlier comment of the noble and learned Lord, Lord Mackay of Drumadoon, that when I refer to "technical amendments" his ears prick up, I shall not say that Amendment No. 202ZA is a minor and technical amendment, although in fact it is. Clause 97 allows provision to be made by subordinate legislation in consequence of an Act of the Scottish Parliament. It could be used, for example, to make provision in English law to complement something done in an Act of the Scottish Parliament which, because of Clause 28(2)(a), could not amend English law. This might be necessary to provide for cross-border enforcement of a provision in an ASP.

Similar principles apply to subordinate legislation made by Scottish Ministers under powers which transfer to them and by others such as the Registrar General. This amendment therefore extends the power in Clause 97 so that the consequences of such subordinate legislation can be dealt with. I beg to move.

Lord Mackay of Drumadoon

My Lords, I am most grateful to the noble Baroness for giving that clear explanation of why this minor and technical amendment is required. One of the advantages of having a second revising Chamber is that one has many opportunities to table such amendments. I can well understand why this is required and I have absolutely no objection to it.

On Question, amendment agreed to.

Clause 99 [Power to adapt functions]:

Lord Sewel moved Amendment No. 202A:

Page 46, line 4, at end insert— ("( ) If subordinate legislation under this section modifies a function of observing or implementing such an obligation under Community law so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be achieved under the obligation as is specified in the legislation, references in sections 28(2)(d) and 53(2) and paragraph 1 of Schedule 6 to Community law are to be read as including references to the requirement to achieve that much of the result.").

The noble Lord said: My Lords, I am afraid that I shall take a little longer to move this amendment than immediate previous amendments. Clause 99 includes a power for an Order in Council, or an order made by a Minister of the Crown, to provide that certain functions can be exercised separately in or as regards Scotland or within devolved competence. Among other things, this will enable the United Kingdom Government to split an international or European Community obligation which is expressed in quantitative terms, such as a target or ratio, in order to facilitate the transfer of part of that obligation to the Scottish Ministers. It also contains provision to ensure that the Secretary of State's powers of intervention under Clause 54 will be available to enforce the Scottish share of an international obligation.

As we indicated to the House at Committee stage, we have been considering whether anything more is required to ensure that the Scottish Ministers implement the Scottish share of a quantitative Community obligation. An example would be an EC quota for livestock subsidies. Noble Lords will recall that for the purposes of the Bill a Community obligation does not fall within the definition of an international obligation. Compliance by the Scottish Parliament and Ministers with Community law more generally would be a devolution issue in relation to which proceedings might be taken by the Law Officers. However, the Scottish share of a Community obligation which has been apportioned using Clause 99 might not itself be thought to be part of Community law. Government Amendment No. 202A deals with this problem. It provides that the references to Community law in Schedule 6, Clause 28(2)(d) and Clause 53(2) are to be read as including references to the requirement to achieve the Scottish share of such an obligation. The effect is that where the Scottish share of a quantitative EC obligation is transferred to the Scottish Ministers it will be regarded as a matter of Community law and can be enforced on the same basis as any other function of the Scottish Ministers in observing and implementing a Community obligation. This is in line with the approach which is adopted in the Government of Wales Act.

This amendment is necessary to complete the provisions which ensure that compliance by the Scottish Ministers with quantitative international and EC quotas can be enforced. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, I became slightly lost in the middle of the explanation given by the Minister, although I believe that that was more my fault than his. Possibly I should read what he said. However, as this is Report stage it is more difficult to do that. As I understand the Minister, if for example the Community came to an agreement about pollution emissions which were divided up by a formula—I may have missed what that formula might be—between Scotland and England, Scotland would have to take whatever its share might be of the emissions reduction. But what if the English position was that they were putting out more of the foul substances than a comparative Scottish plant, in other words, the Scottish plant was cleaner than the English plant? The Scottish plant would still have to take a proportionate hit, so to speak, which might be much more difficult to achieve.

Perhaps I am missing something here but I think that there is a problem. This is more of a Committee point but these amendments have come forward on Report. I am not sure whether I can think of an example relating to fishing as it has already been divided into sea areas. Therefore I believe that that will be acceptable. I am concerned with emissions. I am reluctant to go too far into coal burn but electricity plants in Scotland on coal burn are perhaps cleaner than some comparative English plants. But they may have to take a bigger hit, which will be more difficult to achieve than, for example, making the same savings in England. If the noble Lord cannot help me off the top of his head, perhaps he would write to me on that matter.

Lord Fraser of Carmyllie

My Lords, before the noble Lord responds, my noble friend has a good point. The issue of emissions is something to which I have referred previously. The exact allocation of responsibilities regarding emissions, whether under EU legislation or international obligation, is as yet unclear to me. The point of my intervention is to put down a marker for the last stage which we shall come to in this Bill. As I understand it, as far as electricity is concerned—not just the generation but the transmission—that is something which will remain the responsibility of the Westminster Parliament.

My further understanding is that as matters stand at present. those powers vested in the Secretary of State where it applies in Scotland are exercised not by the President of the Board of Trade or the Secretary of State for Trade and Industry but by the Secretary of State for Scotland. I am not clear at present as to where these responsibilities are to be divided. Will we see those powers, where they are to be applied in Scotland, exercised by some department other than the Secretary of State for Scotland, so long as he continues to be, or are they to be exercised by some other Secretary of State elsewhere in the Whitehall empire?

Lord Sewel

My Lords, perhaps I may try to respond to the legitimate points made by the two noble Lords. The noble Lord, Lord Mackay, helpfully used the example of emissions. One can see the ludicrousness of a straight pro-rata allocation if, for example, the stage was reached where there were no coal-burning power stations in Scotland and all of them were in England. There is no point in having a pro-rata allocation on that basis. The Scottish share would be something to be negotiated between UK and Scottish Ministers, taking into account their responsibilities and the proportionate contribution that Scotland and the rest of the United Kingdom make to the problem being tackled. Therefore, there is a strong requirement to reach a sensible accommodation and agreement.

The noble and learned Lord, Lord Fraser of Carmyllie, asks who at the end of the day will be responsible. Under Clause 54, the Secretary of State has powers of intervention. My understanding is that the Secretary of State would act in this way to require Scottish Ministers to accept and implement the quantitative obligations. If I am not correct about that, I will write to the noble Lord in good time. I do not wish to speculate but we all know that "Secretary of State" means any Secretary of State.

On Question, amendment agreed to.

10 p.m.

Clause 100 [Agreed redistribution of functions exercisable by the Scottish Ministers etc.]:

Lord Hardie moved Amendment No. 202B:

Page 46, line 23, at end insert— ("(4) This section does not apply to any retained functions of the Lord Advocate which fall within section 48(6)(a).").

The noble and learned Lord said: My Lords, in Committee, amendments were brought forward which sought to exclude from the scope of Clause 100 certain functions exercisable by the Lord Advocate. We undertook to consider the matter further and this amendment reflects that further consideration. It provides that the functions exercisable by the Lord Advocate immediately before he ceases to be a Minister of the Crown will not be capable of being transferred to a UK Minister under this clause. This would include functions exercisable by the Lord Advocate in relation to criminal prosecutions and investigations of deaths in Scotland, as well as his law officer functions. As indicated in Committee, we accept that it is inconceivable that such functions should be transferred to a UK Minister and this amendment simply makes the matter clear on the face of the Bill. I beg to move.

Lord Mackay of Drumadoon

My Lords, I welcome the amendment, which reflects the concern expressed in Committee. I can well understand the noble and learned Lord when on this occasion he says that something is inconceivable. However, it is important that it is set out on the face of the Bill and I offer no opposition to the amendment.

On Question, amendment agreed to.

Clause 103 [Regulation of Tweed and Esk fisheries]:

Lord Monro of Langholm moved Amendment No. 203:

Page 47, line 9, at beginning insert ("Subject to subsection (1A),").

The noble Lord said: My Lords, I shall speak also to Amendment No. 228. It relates to Clause 118 and highlights the word "Solway". I apologise to the noble Lord, Lord Mackay of Ardbrecknish, for being absent when he discussed the River Esk in Committee. I wish to deal with some of the points which were discussed in order to see whether the issue is any clearer. We are discussing the future management of the River Esk, or the Border Esk—certainly not the North or South Esk, as some noble Lords mentioned on the previous occasion.

The problem has been that during the past 20 years the North West Water Authority, then the National Rivers Authority and now the Environment Agency, has laid claim to the management of the River Esk right to its source. That means 90 per cent. in Scotland and about 10 per cent. in England. As that 90 per cent. flows through my former constituency I have been intimately involved in arguing the case over the years.

There is some misunderstanding, which was highlighted in the debate, in that for only a short distance is the River Esk the boundary between England and Scotland. It is entirely in Scotland to the junction of the River Liddel and shortly below that the whole river flows through England to the Solway. That is why those three organisations from England claim the management of the whole river from its source to its mouth in the Solway Firth.

The important point is that we must decide who will be in charge of the river. Will it start at the national boundary as the Scottish part will be entirely managed by Scotland, as recommended in my amendment, or will there be a joint management of the whole river, which in many ways would be to its benefit?

The problem has been that because the mouth is in England we are not entitled to have a salmon district fisheries board, which in most rivers in Scotland does so much to improve the angling propensities of the rivers through restocking and policing works by the bailiffs. Can the Minister say whether we in Scotland will have total control over the whole river or whether there will be a continuing argument between England and Scotland as to who has the right to manage it? This may seem to be a very parochial point but where I live in Dumfries this river is of immense importance for angling and for many other reasons.

How will this operate from next summer when the authority, I hope, gets control of the river in Scotland and the responsibility for the English part goes to England? And how are we going to look after the financial aspects of managing the river, with or without a district board, and rod licensing for the English or Scottish parts of the river?

On 8th October my noble friend Lord Mackay of Ardbrecknish raised the issue of rod licensing on this river. I have seen the letter in reply from the noble Lord, Lord Sewel, which indicates that consultations had been inconclusive. The letter states: Consequently the present arrangements under the Environment Agency will continue with the issue of rod licences remaining unchanged". Does the Minister know what the position is at the present time, because it is extremely fluid? The three authorities in England—the water authority, the National Rivers Authority and the Environment Agency—all feel that legally they have the right to charge for rod licensing throughout the Scottish stretches of the river. I visited the chairmen of the two first boards and argued in depth that it would be quite unfair and that the River Esk would be the only river in Scotland to which rod licensing was applicable and that this would be a national disgrace in terms of a serious impost on local anglers. Those two authorities agreed that they would not push their right by legislation to have rod licensing, but it is still in place. I would like to be quite clear tonight that rod licensing will not be charged by an English authority on a length of the river in Scotland, because the legislation does not make it clear what the jurisdiction will be next summer.

To a degree, the problem has been resolved because, due to the removal of rates on fishing in Scotland, the riparian owners have put that money into managing the river, in exchange for not charging rod licences. However, I should like this matter to be cleared up tonight, if possible. A lot of the fishing is extremely inexpensive, as a result of the good work over many years of the two estates, and pensioners and residents fish at remarkably low cost. It would be a great pity if we were to run into an administrative hiccup because of the changeover of jurisdiction from England to the Scottish parliament.

I hope that we will not wait too long for an answer. In the letter to my noble friend Lord Mackay it was stated that any other decision should be deferred until the outcome of the ongoing review of English salmon legislation. Heaven knows, that has been permanently on the stocks for years and years, particularly in regard to the North East drift nets. When we get the answer relative to English salmon legislation that will go some way to clearing up the problems of the River Esk.

Lastly, the noble Baroness, Lady Ramsay, spoke at some length on the problem of the Solway Firth. She indicated that the Bill would establish a fixed boundary for the purposes of defining the border between England and Scotland. I wonder whether she has had any further thoughts as to how that is to be done bearing in mind that the centre of the channel is flexible and moves either side of the Solway Firth from year to year and month to month. It will be difficult to define that centre line. Shall we have a series of buoys? We can hardly expect policemen to go out with sextants and theodolites in order to try to decide what is the latitude and longitude of a national boundary in the middle of a firth.

We must try to find a solution because half netting is an extremely important industry and sport on the Solway. It must be policed and it will be impossible to do that if the policemen are unable to find out exactly where is the boundary between England and Scotland. A prosecution may fail because the fisherman will say he was either in England or Scotland. I wonder whether the Minister has had further thoughts as to how the boundary is to be defined in order to bring peace and quiet to what is the sometimes contentious issue of the Solway Firth.

I should be grateful for some further thoughts on how to resolve the difficulty between England and Scotland. At the moment we do not seem to have reached a happy conclusion despite the consultations which have taken place between the fisheries boards. I beg to move.

Viscount Thurso

My Lords, I was extremely interested to see this amendment on the Marshalled List. I am grateful to the noble Lord, Lord Monro of Langholm, for raising the question.

As I understood the quite lengthy debate we had in Committee, the result of that debate and the amendments brought forward by the Government put us in a position in which we should be able to accept the recommendations of the salmon strategy taskforce report of the noble Lord, Lord Nickson. It now appears that that is in some doubt. Therefore, I should be grateful to hear the clarification which the noble Lord, Lord Monro, has asked for. We support the recommendations in that report.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to my noble friend Lord Monro of Langholm for moving this amendment. He has explained the position with regard to the Esk in such a way that I need not add any more to it.

I was grateful to the noble Baroness for writing to me on the question of rod licences. I do not believe that she wrote to me about the more difficult question of the shifting sands of the Solway. I am not entirely sure whether the noble Baroness wrote to me on that because I received such a plethora of letters in the summer. I cannot find a letter about the Solway but I could not guarantee that I did not receive one. However, I certainly received a letter on rod licences for which I am grateful. I look forward to receiving the further clarification for which my noble friend asked.

I should like to move the River Esk downstream a little. The channel of the River Esk is not entirely obvious at high tide in the Solway. But is obvious at low tide, as I noticed when I flew over it today. It is ironic that the centre line of the River Esk forms the border between England and Scotland and, as my noble friend Lord Monro said, it can move. Not only can it move but it does so with the passage of time. Therefore, an area of sandbank can be in England at one stage but can end up a few decades later in Scotland and vice versa. As my noble friend explained, that is important from the point of view of knowing which particular country's salmon netting legislation is applicable.

It goes further than that because the estate at the top of the Solway—Castletown estate—has land boundaries which go out into the sea along the River Esk channel and along the River Eden channel until they meet just off Port Carlisle in the Solway.

As the position currently is, everything to the south of the channel of the River Esk is in England. If in fact some other fixed boundary is used other than the central line of the River Esk, it could easily move entirely into England or stay entirely in Scotland. Therefore the normally agreed position up until now as to the legality under Scottish or English law of net fishing in the Solway would change dramatically. Legislation or activities related to the boundary could be important for the estates that march along the Solway and for the people who have the netting rights.

It is important that we know from the Government that, if changes are to be made in the future—whichever government decide to make them; whether it be the Government of the United Kingdom masquerading as the Government of England or the government of Scotland—they will make sure that people on both sides of the Border know what has been proposed and are given an opportunity to respond. Clearly, if it is the Scottish government doing it, the people in England have no representation in the Scottish parliament.

We want an acknowledgement that any observations from people outside Scotland in relation to the Solway will be taken into account in any changes that are to be made and their legal interests will also be taken into account if any decisions are made to move from the more flexible boundary of the central line of the Esk to the fixed boundary which may be incorporated in future legislation.

10.15 p.m.

The Earl of Balfour

My Lords, I support my noble friend Lord Monro on this point. It was in the water Act that applied to England and Wales that the catchment areas of the River Esk were brought within the field of the National Rivers Authority. It was in that Act at that time that some of the misunderstandings as to where the boundary is placed were established.

Perhaps I may also mention a rather peculiar problem that arises in today's Marshalled List. When we sat last Wednesday an amendment appeared in the Marshalled List in the name of the noble Lord, Lord Sewel, numbered 204A. It was quite short and read: Page 47, leave out line 34". That line in the Bill reads, 'enactment' includes one made under this Act". Normally when an amendment is withdrawn—by whichever side of the Chamber—its number usually remains and after the number, in brackets, the word "withdrawn". Why on this occasion has Amendment No. 204A vanished? It was an amendment of some importance and I believe—here I am on dangerous ground—that the noble Lord, Lord Sewel, spoke to that amendment with Amendment No. 140A. On that I may be wrong, but I am extremely curious at this point.

Lord Sewel

My Lords, it seems that we do not have the ever-shrinking parliament, but we now have the ever-vanishing amendment. I shall try to sort that out in the course of time.

I recognise that the purpose of the amendments tabled by the noble Lord, Lord Monro of Langholm, appears clear-cut and that they are based on his considerable experience and understanding of the position with regard to the River Esk. Clearly, the intention is to bestow on the Scottish parliament competence to legislate on the management, in the widest sense, of freshwater fish in that section of the Border Esk which flows within Scotland. But I fear the amendments misunderstand the purpose of Clause 103 and overlook what is already permissible and intended under the Bill.

Fishery matters which the amendments address are not reserved under the Bill. Consequently a Scottish parliament will be able to take the action which the amendments propose, subject to the limits on its competence set out in Clause 28. Incidentally, the same applies to that part of the Tweed which flows within Scotland.

What Clause 103 seeks to do in addition—and I stress "in addition"—is to provide a framework for both Parliaments, acting jointly, to legislate for the total lengths of the Border rivers and to establish a common statutory framework for fisheries management in those rivers that is the same in Scots law as in the law south of the Border. That represents a recognition—it is an important recognition—that sound and effective management, conservation and exploitation needs to be considered on a whole river catchment basis. At least we are providing the framework. We cannot bring it about in the Bill, but we are providing the framework which will enable a whole river catchment basis to be put in place. That is a useful advance on the present status. On rod charging, I shall have to return to the details and I shall then write to the noble Lord, Lord Monro.

Perhaps I may turn to the great story of the Solway boundary. I used to know the answer to this, but it is a little bit like the Schleswig-Holstein question: of those who did know it, one died, one went mad and the other has forgotten it. I think I am the one who has forgotten it. However, I do have some assistance here. As both noble Lords have indicated, we have effectively had a shifting boundary in the Solway which has considerable implications for the effective management of, in particular, the area's salmon fisheries. It is perhaps difficult to understand a shifting international boundary—or rather, a shifting national boundary—

A noble Lord

My Lords, it will be "international"!

Lord Sewel

My Lords, not if we have anything to do with it!

I announced last year that the Government would be investigating the option of establishing a fixed boundary in the Solway Firth. That was the initiative that my noble friend Lady Ramsay mentioned at an earlier stage. In Clause 118(2) we have provided for establishing a fixed boundary for the purposes of defining "Scotland", as that term is used in the Bill. We shall not directly alter the boundary as it may be understood in common law. However, we shall provide a basis for establishing the jurisdiction of any future laws that may be made for England or Scotland, including any powers or duties that may be necessary to enforce regulations established by Order in Council under Clause 103.

I believe that this measure is welcomed by all responsible bodies in that area. Taken together with the provisions in Clause 103 which allow a clear legal framework to be established for freshwater fisheries management in the area, I believe that in time we shall see a satisfactory resolution of the outstanding issues on salmon fisheries management in the Solway Firth. As both noble Lords indicated, there have been long-running problems in that particular area. I am not saying that this devolution Bill for Scotland solves them all, but it helpfully provides a way forward.

Perhaps I may now reply to the noble Earl, Lord Balfour. It is an extremely helpful contribution that I am about to make. I understand that the matter was debated last week. Now we have a phrase which will cause some amusement. The amendment was not "actively withdrawn." There is no known reason why it should have disappeared. We shall investigate. I thank the noble Earl most sincerely for his contribution. He may be hearing more later. I certainly hope that I shall. On that basis, I hope that the noble Lord will withdraw his amendment.

Lord Monro of Langholm

My Lords, I am grateful to the Minister for his good humoured reply. Will he ask his fisheries department to continue negotiating with the MAFF fisheries department so that there is not a complete void next summer. Maybe there will be some light at the end of the tunnel. I appreciate the complications. I have been deeply involved in them umpteen times. We always fall down at the end of the day, but this time we have to get it right. I am grateful to the Minister and his department for the efforts they have made. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 204 not moved.]

Clause 104 [Subordinate legislation: general]:

Lord Sewel moved Amendment No. 205:

Page 48, line 28, leave out subsection (6).

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 205ZA:

Page 48, line 35, at end insert— ("( ) The standing orders of the Parliament shall include provision for the exercise of appropriate control by the Parliament over the passage of delegated legislation created by a Scottish Minister by virtue of this Act or under powers conferred by the Parliament.").

The noble Lord said: My Lords, this amendment takes us into Schedule 7 although the amendment itself refers to Clause 104. When I was considering the schedule last Thursday and looking at the various provisions for affirmative and negative orders, as we understand them in this Parliament, I wondered where provision was made in the Bill for similar procedures in the Scottish parliament. I could not find any such provision setting out that secondary legislation had to be dealt with by either affirmative or negative procedures or saying that standing orders had to be devised to deal with secondary legislation along the lines of the affirmative and negative procedures.

The reason why this is important is that in paragraph 2 of Schedule 7 the types of procedure are listed. They include the ones we know about. Perhaps I may just read out one of them, which is Type A. It states: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument— (a) has been laid before, and approved by resolution of, each House of Parliament". That is clear as regards this Parliament. Type E, for example, must be financial. It is an affirmative resolution of the House of Commons. Others relate to either House. We know exactly what is meant because the procedures here on how we deal with secondary legislation are well established. It is either by the affirmative procedure which, as noble Lords know, means that the Government have to table a Motion and find time for a debate. In the other place a Division has to be won on that debate if one is called. In your Lordships' House there is the convention that the House is not divided on secondary legislation.

There is the negative procedure under which a vast array of orders are made. Essentially, it is for the Opposition or an aggrieved Member to put down a Prayer saying, "Please annul these." If nobody tables a Prayer, then after, I believe, 40 days, they simply pass into law. That is the negative procedure. It is less taxing because the Government obviously do not have to find time to debate either on the Floor of the other place, in Committee, or in your Lordships' House, the piece of secondary legislation.

As I understand Schedule 7, it assumes that the same kind of procedures will apply in the Scottish parliament. For example, in Type A, in addition to there being the affirmative procedure in each House of Parliament, both in the Commons and in your Lordships' House, the instrument also has to be laid before and approved by resolution of the parliament—in other words, the Scottish parliament. Type D specifically concerns the Scottish parliament. The instrument has to be laid before, and approved by resolution of, the parliament. Type J is the negative procedure. Schedule 7 states: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the Parliament". That is the negative procedure. But nowhere can I find any provision in the Bill that the Scottish parliament has to have these procedures and that the standing orders should contain such provision.

My amendment may not be necessary. However, if I am right and there is no provision in the Bill, perhaps my amendment is necessary. My amendment does not lay down the detail of what the parliament should do. It simply says: The standing orders … shall include provision for the exercise of appropriate control by the Parliament over the passage of delegated legislation … by virtue of this Act or under powers conferred by the Parliament". By that I mean that, in order to accord with the types of procedure laid down in Schedule 7, the standing orders will have to make provision in the Scottish parliament for similar types of procedures to those to which we are accustomed in the Westminster Parliament.

This has been a quite convoluted explanation. Perhaps the Minister will tell me that I have misread the Bill and that the provision is there. I shall then be satisfied. But if it is not there, I suggest that it ought to be there and that we ought to consider that very seriously. I beg to move.

10.30 p.m.

Baroness Ramsay of Cartvale

My Lords, we have now had a number of debates about what is appropriate for this Parliament to require the Scottish parliament to include in its standing orders. This amendment raises another point on what in fact is familiar ground, although the noble Lord has raised specific points about the affirmative and negative procedure with which I should perhaps deal right away.

The transitional provision will be made under Clause 121, expanding on what is meant by affirmative and negative procedure in the Scottish parliament under the Statutory Instruments Act 1946. It will be applied with modifications until the Scottish parliament makes its own provision. While the Bill requires standing orders to address a number of aspects to do with the passage of primary legislation, we think it has been quite properly silent on the procedures for secondary legislation. The noble Lord, Lord Mackay, is looking puzzled. Am I not addressing the points he was making?

Lord Mackay of Ardbrecknish

My Lords, perhaps the noble Baroness would like to repeat that last sentence. I was busy trying to read Clause 121.

Baroness Ramsay of Cartvale

My Lords, I am sorry. I thought the noble Lord looked as if he was about to intervene with a query. While the Bill requires standing orders to address a number of aspects to do with the passage of primary legislation, as I have said many times at earlier stages of the Bill we think it is quite properly silent on the procedures for secondary legislation.

I entirely agree with the noble Lord that it is important that the Scottish parliament should exercise appropriate control over the passage of delegated legislation. I do not think anyone would be in dispute about that. The Delegated Powers and Deregulation Committee accepted that it would be for the parliament to decide, in the face of each new delegated legislative power, what was the right measure of scrutiny and control. The committee did not make a recommendation but it made a suggestion that the House might wish to consider whether Schedule 3 standing orders should be amended to make plain that standing orders will address this issue. We gave careful consideration to the suggestion of the Select Committee—I repeat that it was only a suggestion—that Schedule 3 should be amended to make plain that the standing orders would address the issue of scrutiny of secondary legislation.

Moreover, as I promised the noble Lord, Lord Mackay, and indeed other noble Lords in Committee, we looked most carefully at the whole subject again and considered what was said at that time. However, I have to say that we have concluded that detailed parliamentary procedures are better left to the Scottish parliament to devise. We think it right that it should be able to decide its procedure for itself. We believe that the parliament will act maturely and responsibly in this area, as, indeed, in others. As we are devolving power to the parliament, we believe that we should allow it to have the discretion to exercise its power over subordinate legislation wisely and that we should trust it to exercise that power properly. We are sure that we can rely on the parliament to make provision for the scrutiny of subordinate legislation in its standing orders.

I should add that the Statutory Instruments Act 1946, which makes detailed provision as to affirmative and negative procedure in this Parliament, will be applied in relation to subordinate legislation subject to the affirmative or negative procedure in the Scottish parliament until the latter makes its own provision. In view of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Mackay of Ardbrecknish

My Lords, clearly I have stumbled across something that was of some interest. As far as I understand what the noble Baroness said, the transitional arrangements will be covered by Clause 121 and existing legislation of the UK Parliament. Therefore, the types of procedures contained in paragraph 2 of Schedule 7 will be dealt with by that means. However, beyond that transitional position I become somewhat worried. The noble Baroness reminded me that, although the Delegated Powers and Deregulation Committee pointed this out, the Government decided that they did not need to take any steps looking beyond the transitional period. Yet beyond that period, I presume that Schedule 7 would still rule and the types of procedures there would have to be undertaken by the Scottish parliament. Therefore, in a way we are dictating to the Scottish parliament that it will be required to have secondary legislation along the lines of the types of procedure laid out in paragraph 2 of the schedule.

I am a little puzzled about the latter. It does not seem to me to be right that the Bill can be silent into the future about what should be contained in standing orders with regard at least to the broad-brush approach of secondary legislation; namely, that there should be provision of some kind for something which looks like affirmative orders, as witness Type D in paragraph 2, and something that looks like negative procedure, as witness Type J. To be honest, I am reticent to back off from my very non-prescriptive amendment because this does leave the decisions to the Scottish parliament while making it clear that it has to bring forward standing orders to exercise the appropriate control. It does not seem to me to be any more prescriptive than Clause 34 with regard to the general debates on Bills.

As I said, I am almost reluctant to let this one go at this time of night. But I think that the best I can do is to study the noble Baroness's response and perhaps return to the matter on Third Reading if I still feel that something is not quite right. Indeed, I am almost tempted to see how many of your Lordships are still here at this time of night, but that would preclude me from returning to the matter once I have studied the Minister's response and taken some advice upon it. Therefore, in order to try to get the Bill right as far as concerns the Scottish parliament, I shall read the Government's reply. If anything else has to come to help me in that respect by way of a letter, it had better come quickly before this Thursday when I shall decide what to do for next Monday. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 [Subordinate legislation: scope of powers]:

Lord Sewel moved Amendment No. 205A:

Page 49, line 10, at end insert— ("(5A) But a power to modify enactments does not (unless otherwise stated) extend to making modifications of this Act or subordinate legislation under it.").

On Question, amendment agreed to.

[Amendment No. 206 not moved.]

Schedule 7 [Procedure for subordinate legislation]:

Lord Sewel moved Amendment No. 206A:

Page 93, line 3, at end insert—

("Section 52(2)

Type G")

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 206B: Page 93, line 4, column 2, leave out ("I") and insert ("C").

The noble and learned Lord said: My Lords, Amendment No. 206B is grouped with another six amendments which seek to make amendments to the provisions of Schedule 7 of the Bill, which, as your Lordships will recall, was introduced into the Bill not so long ago when the Government helpfully amended the provisions dealing with subordinate legislation and made them more intelligible for the lay reader and the lawyer reader too.

I seek to make a number of amendments as to the kind of procedure that ought to be followed when dealing with seven of the order making powers. Amendment No. 206B deals with the order making power under Clause 54 of the Bill, which your Lordships will appreciate is an important order making power. It gives to the Secretary of State power to take action by means of an order when he believes that an, action proposed to be taken by a member of the Scottish Executive would be incompatible with … international obligations". Equally, he has an order making power when he has, reasonable grounds to believe that any action capable of being taken by a member of the Scottish Executive has not been taken. He has power to direct that, the action shall be taken". Clause 54(3) on page 24 of the Bill states that "action" can include, making, confirming or approving subordinate legislation", or introducing a Bill into the parliament.

As presently drafted, the Bill would allow that order to be made by Type I procedure; namely, that, The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of either House of Parliament". Having regard to the significant nature of the order making powers under Clause 54, I believe that if they are used or are threatened with being used, they could give rise to a major dispute between the Secretary of State on the one hand and the Scottish executive on the other. It seems appropriate that that should be done by Type C procedure, the affirmative resolution procedure. I refer to Amendment No. 206B.

It may be convenient to discuss the next two amendments in the group together. They deal with Clauses 84 and 85, which touch on the subject of cross-Border public authorities, their initial status and also the power to adapt them. I propose that in the first of the two amendments, the Type I procedure should again be replaced by a Type C procedure; namely, the approval by affirmative resolution. In the latter amendment I propose that it should be replaced by Type A procedure, that is an Order in Council, that requires a draft of the instrument to be approved by resolution of each House of Parliament and also approved by resolution of the parliament itself. One suspects that while these cross-Border public authorities may be a useful device to enable the British Government, the Scottish executive and other public authorities to co-operate for the benefit of all, they will nevertheless give rise to some sensitivities. I believe it is sensible that the order making powers should be subject to the alterations of procedure I propose.

I turn now to Amendments Nos. 206G to 206K. These deal with the order-making powers to be found in Clauses 94, 97, 98 and 99. We have discussed these in relation to earlier amendments. They deal with the power to make subordinate legislation when it is thought necessary or expedient in the circumstances set out in the clauses.

As presently drafted, these proposals would be subject to Type G procedure: the instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House. I suggest that no Minister of the Crown is to make the legislation unless a draft has been laid before and approved by a resolution of the House of Commons.

I readily accept that these amendments go somewhat further than the views expressed by the Delegated Powers and Deregulation Committee. However, I propose them having spent a number of hours preparing for and taking part in debates in this House in relation to these various order-making powers. I put them forward as appropriate and, to quote the terms of Clause 94, "necessary or expedient". I beg to move.

Baroness Ramsay of Cartvale

My Lords, this set of amendments is clearly aimed at requiring subordinate legislation under certain provisions in the Bill to be subject to affirmative rather than negative resolution procedure.

The general thrust of the amendments is to require a higher level of procedure than in this Parliament for various orders. We gave careful consideration to the procedure which should apply to each order under the Bill. That is one of the reasons why both the original provisions governing procedure and the new provisions substituted at Committee stage are so complex. It is also worth recalling, as the noble and learned Lord himself pointed out, that the Delegated Powers and Deregulation Committee—the body set up by this House to consider the appropriateness of the degree of parliamentary scrutiny given to delegated powers—has reported on both the Bill and the amendments we have made to it and did not suggest the sort of changes of procedure that are sought by these amendments.

The committee did suggest that affirmative resolution procedure should be used for orders which amend primary legislation—a recommendation that we were pleased to take on board and which is manifested in paragraph 3 of Schedule 7.

There is no doubt that many uses of the powers dealt with in these amendments will be important, but that does not mean that affirmative resolution procedure is necessary on every occasion. In some cases a requirement for affirmative resolution procedure could be harmful. As we explained in the memorandum to the Delegated Powers and Deregulation Committee, we do not think it appropriate that the orders under Clause 54 should be subject to affirmative procedure, as would be required by Amendment No. 206B. Such orders would need to be made quickly to avoid uncertainty and possibly damaging effects. It would be very difficult for an affirmative instrument to be drafted, laid, debated by both Houses of Parliament and made quickly, even assuming that Parliament was sitting. Drafts of an affirmative instrument can be laid only when Parliament is sitting. That could give rise to difficulty if, say, subordinate legislation had been made by a member of the Scottish executive at the time of the parliamentary Recess at Westminster and the Secretary of State wanted to make an order under Clause 54.

I know that the noble and learned Lord has faith, as we all do, in the work of the Delegated Powers and Deregulation Committee. The committee deliberated on four occasions before producing its report on the Bill. I believe that we should rely on and accept the results of that detailed scrutiny as we have done in bringing forward our suite of amendments at Committee stage.

I also suggest to the noble and learned Lord that he may have inadvertently chosen a type of procedure in Amendment No. 206C that is applicable to ministerial orders and not Orders in Council. However, that is a side issue. I hope that, in view of what I have said, the noble and learned Lord will feel able to withdraw his amendment.

Lord Mackay of Drumadoon

I am grateful to the noble Baroness for explaining the Government's position. I would be more persuaded of the argument about following the advice of the Delegated Powers and Deregulation Committee had the Government been prepared to follow that committee's advice about the Human Rights Bill on Thursday afternoon. However, as the noble Baroness had no responsibility for that, I will not pull her leg too unmercifully about it.

I have a concern about Section 54 orders. I accept that there may be a need for urgency, but they are of a highly sensitive nature and in five, 10 or 20 years' time it may be interesting to look back and see how many of these are made in the parliamentary Recess and how many when Parliament is sitting.

I recognise that the committee would not accept these amendments as necessary and, for that reason, I beg leave to withdraw Amendment No. 206B.

Amendment, by leave, withdrawn.

[Amendments Nos. 206C and 206D not moved.]

Lord Sewel moved Amendments Nos. 206E and 206F:

Page 93, line 13, at end insert—

("Section (Agency arrangements)

Type H")

Page 93, line 13, at end insert—

("Section (Assistance for opposition parties)

Type A")

On Question, amendments agreed to.

[Amendments Nos. 206G to 206K not moved.]

Clause 110 [Subordinate instruments]:

Lord Sewel moved Amendments Nos. 206L and 206M:

Page 51, line 37, leave out from ("authority") to ("and") in line 38 and insert ("with mixed functions or no reserved functions,").

Page 52, line 2, leave out from ("authority") to ("and") in line 3 and insert ("with mixed functions or no reserved functions,").

On Question, amendments agreed to.

Clause 111 [Consolidated Fund etc.]:

Lord Sewel moved Amendment No. 206N:

Page 52, line 19, leave out from ("authority") to end of line 20 and insert ("with mixed functions or no reserved functions.").

On Question, amendment agreed to.

Clause 116 [Modification of sections 109 to 114]:

Baroness Ramsay of Cartvale moved Amendment No. 206P:

Page 54, line 5, after ("sections") insert (" 89 and").

The noble Baroness said: In moving Amendment No. 206P, I shall speak also to Amendment No. 206Q. These are technical amendments which add Clause 89 to the list of general modification clauses which subordinate legislation under the Bill may disapply or modify in particular cases. Clause 89 was overlooked because it does not appear alongside the other general modification clauses, namely Clauses 109 to 114, in the Bill. I will expand on the matter if noble Lords wish me to do so. I beg to move.

On Question, amendment agreed to.

Baroness Ramsay of Cartvale moved Amendment No. 206Q:

Page 54, line 9, after ("sections") insert (" 89 and").

On Question, amendment agreed to.

Schedule 4 [Enactments etc. protected from modification]:

Lord Sewel moved Amendment No. 206R:

Page 65, leave out lines 8 to 40 and insert—

("PART I

THE PROTECTED PROVISIONS

Particular enactments

1.—(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, any of the following provisions.

(2) The provisions are—

1. (a) Articles 4 and 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 so far as they relate to freedom of trade,
2. (b) the Private Legislation Procedure (Scotland) Act 1936.
3. (c) the following provisions of the European Communities Act 1972—

Section 1 and Schedule 1, Section 2, other than subsection (2), the words following "such Community obligation" in subsection (3) and the words "subject to Schedule 2 to this Act" in subsection (4), Section 3(1) and (2), Section 11(2),

1. (d) paragraphs 5(3)(b) and 15(4)(b) of Schedule 32 to the Local Government, Planning and Land Act 1980 (designation of enterprise zones),
2. (e) sections 140A to 140G of the Social Security Administration Act 1992 (rent rebate and rent allowance subsidy and council tax benefit),
3. (f) the Human Rights Act 1998.

The law on reserved matters

2.—(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.").

The noble Lord said: In moving Amendment No. 206R, I shall speak also to government Amendments Nos. 206S to 206W. This is a suite of technical amendments to Schedule 4. I hope to be brief, but I can supply further detail about particular provisions if noble Lords would find that helpful.

As noble Lords will be aware, Schedule 4 sets out restrictions upon the ability of the Scottish parliament to modify the Bill itself, certain other enactments and the law on reserved matters. These amendments clarify both the wording and the format of the schedule. For example, they ensure that, where the schedule prevents an Act of the Scottish parliament from modifying an enactment, it should, except in certain cases, also prevent ministerial functions conferred by that enactment from transferring to the Scottish Ministers.

The amendments ensure that the parliament can legislate about its own protections from judicial proceedings, as has been referred to earlier. The amendments also ensure that the restrictions in the schedule do not unduly limit the competence of the Scottish parliament to legislate about its own subordinate legislation procedure or about the fulfilment of the requirements of Clause 66 on financial control and Clause 87 on maladministration.

Finally, the amendments prevent modification of the powers which UK Ministers share with the Scottish Ministers by virtue of Clause 52 and of certain provisions of social security legislation. That will ensure that the ministerial functions of funding council tax benefit and housing benefit remain with the UK Government rather than being caught by the general devolution of the funding of local authorities and Scottish Homes. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, amendments that spread over four pages of the Marshalled List can hardly be described as technical amendments. Equally, amendments that delete a whole chunk of a schedule and replace it with a lot more words cannot be described as technical. These amendments came into our hands only towards the end of last week and we have not yet had time fully to study them. Their purpose is to make clear on the face of the Bill—to that extent they are welcome—that the Scottish parliament cannot modify either by primary legislation or subordinate legislation a number of provisions. I cannot help noticing that the very first ones are Articles 4 and 6 of the Union with Scotland Act 1706 and the Union with England Act 1707. The fact that the Scottish parliament cannot change important Acts that brought about the United Kingdom is some progress. I understand that the Social Security Administration Act that the Minister has discussed and this Bill when it becomes an Act cannot be changed. I also note that judicial salaries cannot be changed. That does not surprise me given the difficulty that the Government had with the judges this afternoon.

However, my heart lightened somewhat when I reached paragraph 13. That does not prevent an Act of a Scottish parliament to amend any of the titles there referred to. I thought that at last there was progress and that the Scottish parliament would be able to decide that there should be a Premier and not a First Minister or that there should be a Speaker and not a presiding officer, or any of the other silly titles that the Government propose to give leading figures in the Scottish parliament. But I then read that it is not to do with any of them since the amendment does not relate to ministerial office or any member of the staff of the Scottish administration. Therefore, while I understand that the Scottish parliament can change the titles of any court or tribunal or any judge, chairman or officer of a court or tribunal, or the holder of any office in the Scottish administration, which is not a ministerial office, or any member of the staff of the Scottish administration, or any register, it will not be able to call the presiding officer the Speaker or the First Minister anything other than the First Minister. My heart dropped when I saw that.

I note the absence of the noble Lord, Lord Steel of Aikwood, who I believe has more important duties today than participation in the Scotland Bill. He is taking part in a car rally throughout Africa, which some people in Scotland may find hard to believe is more important than the Scotland Bill. I did not believe that the Liberal Democrats thought that there was anything more important than this Bill.

To show that I have read it I make these observations. We shall study the detail with some care before next Monday. However, in so far as it prevents the Scottish parliament doing certain things that may bring about the end of the Union we probably agree with the Government.

Before I conclude, I commiserate with the Minister on having to withdraw from the battle to secure a first-past-the-post seat in the Scottish parliament. Perhaps we should table an amendment to ensure that he gains a top position in the top-up list in recognition of the sterling work that he has done on this Bill.

Lord Sewel

My Lords, I should correct the noble Lord on a point of fact. He said that the Government had had trouble with the judges earlier this evening. It was not so much the judges who caused trouble as our old friends the hereditary Peers. We won the Division with the life Peers.

On Question, amendment agreed to.

Lord Sewel moved Amendments Nos.206S to 206W:

Page 66, line 2, at end insert— ("and in this sub-paragraph "Act of Parliament" does not include this Act").

Page 66, leave out lines 13 to 17.

Page 66, leave out line 20 and insert ("Paragraph 2 does not apply to").

Page 66, line 22, after ("by") insert ("virtue or).

Page 66, line 31, leave out from beginning to end of line 27 on page 67 and insert—

("8.—(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, this Act.

(2) This paragraph does not apply to modifying sections 1(4), 16(5), 20(6), 22(7), 23(9), 27(5), (Proceedings by or against the Parliament etc.) to 39, (Validity of acts of Scottish Ministers etc.), 81 and (Agency arrangements) and paragraphs 4(1), (2) and (2A) and 6(1) of Schedule 2.

(3) This paragraph does not apply to modifying any provision of this Act (other than sections 60(7), 62(2), 67(5), 73, 74 and 111) which—

1. (a) charges any sum on the Scottish Consolidated Fund,
2. (b) requires any sum to be paid out of that Fund without further approval, or
3. (c) requires or authorises the payment of any sum into that Fund.

(4) This paragraph does not apply to any modifications of Part III which are necessary or expedient for the purpose or in consequence of the establishment of a new fund, in addition to the Scottish Consolidated Fund, out of which loans may be made by the Scottish Ministers.

(5) This paragraph does not apply to—

1. (a) modifying so much of any enactment as is modified by this Act.
2. (b) repealing so much of any provision of this Act as amends any enactment, if the provision ceases to have effect in consequence of any enactment comprised in or made under an Act of the Scottish Parliament.

Enactments modified by this Act

9. An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify—

1. (a) the effect of section 111(3) in relation to any provision of an Act of Parliament relating to judicial salaries,
2. (b) so much of any enactment as
1. (i) is amended by paragraph 2, 6 or 30 of Schedule 8, and
2. (ii) relates to the Advocate General,
3. (c) so much of any enactment as is amended by paragraph 8(b) or 27 of Schedule 8.

Shared powers

10. An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, any enactment so far as the enactment relates to powers exercisable by a Minister of the Crown by virtue of section 52.

PART II

GENERAL EXCEPTIONS

Restatement, etc.

11.—(1) Part I of this Schedule does not prevent an Act of the Scottish Parliament—

1. (a) restating the law (or restating it with such modifications as are not prevented by that Part), or
2. (b) repealing any spent enactment, or conferring power by subordinate legislation to do so.

(2) For the purposes of paragraph 2, the law on reserved matters includes any restatement in an Act of the Scottish Parliament, or subordinate legislation under such an Act, of the law on reserved matters if the subject-matter of the restatement is a reserved matter.

Effect of Interpretation Act 1978

12. Part I of this Schedule does not prevent the operation of any provision of the Interpretation Act 1978.

Change of title etc.

13.—(l) Part I of this Schedule does not prevent an Act of the Scottish Parliament amending, or conferring power by subordinate legislation to amend, any enactment by changing—

1. (a) any of the titles referred to in sub-paragraph (2), or
2. (b) any reference to a declarator,

in consequence of any provision made by or under an Act of the Scottish Parliament.

(2) The titles are those of—

1. (a) any court or tribunal or any judge, chairman or officer of a court or tribunal,
2. (b) any holder of an office in the Scottish Administration which is not a ministerial office or any member of the staff of the Scottish Administration,
3. (c) any register.

Accounts and audit and maladministration

14. Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any enactment for or in connection with the purposes of section 66 or 87.

Subordinate legislation

15.—(1) Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any enactment for or in connection with any of the following purposes.

(2) Those purposes are—

1. (a) making different provision in respect of the document by which a power to make subordinate legislation within sub-paragraph (3) is to be exercised.
2. (b) making different provision (or no provision) for the procedure, in relation to the Parliament, to which legislation made in the exercise of such a power (or the instrument or other document in which it is contained) is to be subject,
3. (c) applying any enactment comprised in or made under an Act of the Scottish Parliament relating to the documents by which such powers may be exercised.

(3) The power to make the subordinate legislation, or a power to confirm or approve the legislation, must be exercisable by—

1. (a) a member of the Scottish Executive.
2. (b) any Scottish public authority with mixed functions or no reserved functions,
3. (c) any other person (not being a Minister of the Crown) within devolved competence.

PART III

ADAPTATION OF SECTIONS 49 AND 50

16.—(1) This paragraph applies to a function which (apart from this Schedule) would be transferred to the Scottish Ministers by virtue of section 49(2)(b).

(2) If, because of anything in Part I of this Schedule, a provision of an Act of the Scottish Parliament modifying an enactment so as to provide for the function to be exercisable by a different person would be outside the legislative competence of the Parliament, the function is not so transferred.

17.—(1) Paragraph 16 does not apply to any function conferred by any provision of—

1. (a) the European Communities Act 1972,
2. (b) the Human Rights Act 1998, except sections 1, 5, 14 to 17 and 22 of that Act,
3. (c) the law on reserved matters (for the purposes of paragraph 2) so far as contained in an enactment.

(2) For the purpose of determining—

1. (a) whether any function under any of the provisions referred to in sub-paragraph (1) is transferred to the Scottish Ministers by virtue of section 49, and
2. (b) the extent to which any such function (other than a function of making, confirming or approving subordinate legislation) is exercisable by them,

the references in section 50 to the legislative competence of the Parliament are to be read as if section 28(2)(c) were omitted.

(3) Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any of the provisions mentioned in sub-paragraph (1) so as to provide for a function transferred to the Scottish Ministers by virtue of section 49 to be exercisable by a different person.").

On Question, amendments agreed to.

Lord Hunt of Kings Heath

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly and, on Question, Motion agreed to.

House adjourned at eleven o'clock.