SECTION 7—MINERAL DEPOSITS

HL Deb 03 November 1998 vol 594 cc247-62

Reservation The exploitation of mineral deposits of unprecedented or substantial national significance.").

The noble Lord said: My Lords, I raised this issue originally because I noticed that the Government dealt with outer space issues as a reserved subject. It therefore seemed altogether reasonable to reserve minerals under the ocean depths. However, the Government resisted that for a number of reasons outlined by the Minister in a letter to me. He made it quite clear that coal, oil and gas would be reserved but other minerals would not. My concern was that valuable mineral deposits could be discovered under the ocean depths. The Minister stated in his reply that the management of the Crown Estate was reserved but the Crown property would not be. He went on to say: It will thus be for the [Scottish] parliament to legislate about mineral resources (other than oil, coal and gas) found on land or under the seabed".

I immediately wondered what would happen were there to be a massive discovery of uranium within Scotland. We know that there is uranium in Scotland. We do not know how much, but we know that it exists. There are countless other mineral deposits—for example, gold. That may not be commercial, but there are many other mineral deposits. The Minister stated in his letter: Were valuable mineral deposits to be found in Scotland, their exploitation would be of great significance, in the first instance, to the people of Scotland. The Members of the Scottish parliament will be best placed to make decisions in the best interests of the Scottish people".

I appreciate that that argument would recommend itself to the Scottish National Party. But if there is a massive find of uranium, I simply do not believe that the British Parliament will say, "This is not a matter of any concern to ourselves".

The Minister acknowledged there was a problem. He went on to say in his letter: the list of reserved matters in Schedule 5 … can be changed by virtue of an Order in Council under Clause 29".

I appreciate that the essence of his argument is that this Parliament is sovereign and, if for any reason mineral deposits which are of great significance to Britain are found, this Parliament can take action and alter Schedule 5 by amending it. But he states in his letter that this could be done: If the Scottish and Westminster Parliaments agreed that that was in the best interests of the UK".

It may well be that the political government in the Scottish parliament is entirely different from the composition of the government of the Westminster Parliament. If the two executives have different political parties in charge, there will be the potential for considerable conflict.

It seems to me that in the absence of any concordats being suggested, the Minister is relying on good will between the two parliaments. It may well be that there is no such good will. It will be no use relying on gentlemen's agreements or on the subject being well interpreted. It may be subject to misinterpretation or no interpretation.

I suggest that unless this matter is specified clearly in the schedule, before the parliament is set up, it will be a source of continuing conflict. It is surely only a matter of time until major mineral deposits are found either under Scottish land or under the ocean depths. In that case, it seems that reservations should be put into the Bill. If they are not, we shall be storing up problems for the future. I beg to move.

10 p.m.

Lord Mackie of Benshie

My Lords, I have always thought that the amendments proposed by the noble Lord, Lord Selkirk, had a good deal of sense in them. However, as regards this amendment, if we find untold gold, silver or platinum in Scotland, then the exploitation thereof must be reserved to the United Kingdom Parliament. Is that the correct interpretation? If it is, I am against the amendment. If we find treasure in Scotland, we should be able to exploit it. Surely to goodness, if we find treasure, it should be Scottish.

Lord Renton

My Lords, before the noble Lord sits down, perhaps I may ask him about uranium, which my noble friend mentioned. It is a matter of natural interest if we happen to find uranium.

Lord Mackie of Benshie

My Lords, there is no question of the Scottish parliament acting against the national interest. If there is uranium which requires exploitation and great control, the Scottish parliament will agree to that. The Scottish parliament will be sensible about this matter. But if it is found on Scottish soil, surely the Scottish parliament should have control over it.

The Earl of Balfour

My Lords, one or two matters should be taken into consideration on this amendment moved by my noble friend Lord Selkirk. It must have been some years since I looked at it, but there is an old Act which goes back before the Union of the Crowns which specifies that gold, silver or other precious metals found in Scotland belong to the Crown. I am fairly certain that that old Act is still on the statute book. It has resulted in deterring a number of prospectors looking for precious metals from ever trying to seek its development in Scotland.

The other matter which has put off the development of many ores in Scotland is that the strata has been so tilted that it is almost vertical, which makes it quite impossible to mine in any way other than by open-cast. Those two matters are worth considering.

Lord Mackay of Ardbrecknish

My Lords, my noble friend Lord Selkirk of Douglas has a point. The noble Lord, Lord Mackie of Benshie, has rather walked into a trap which will mean that he will have to bring forward amendments on Third Reading to deal with two other parts of the schedule. It seems rather odd that the noble Lord, Lord Mackie of Benshie, thinks that any treasures yet to be found should be the property of the Scottish parliament but yet is quite content that the treasures already found—namely, oil, gas and coal—should be reserved to the United Kingdom. It seems to me that that is the opposite of a bird in the hand being worth two in the bush.

Lord Mackie of Benshie

My Lords, the noble Lord, Lord Mackay, may not have noticed that up to now we have been living in the United Kingdom.

Lord Mackay of Ardbrecknish

My Lords, I hope that we shall continue to live in the United Kingdom—which adds to the argument. If it is good enough for oil and gas, as it is in Section 2, and for coal, as it is in Section 3, it seems to me that, looking to the future and the possibility that some other mineral resources may be found, they should be treated in exactly the same way as those which have already been found such as oil, gas and coal. It is amazing that we say that the current wealth found in Scottish waters and under the land in Scotland ought to be reserved to the United Kingdom, but if we are lucky enough to find any future wealth we can keep it ourselves. It is very illogical. My noble friend has a point and I look forward to the Government accepting it.

Lord Sewel

My Lords, I am grateful to the noble Lord for his explanation as to why he considers this amendment to be necessary. I hope to be able to reassure him that it is not. As I understand it, the noble Lord has particular concern that if in future valuable mineral deposits were discovered in Scotland, this parliament will be unable to legislate over the matter. It is only proper that the exploitation of mineral deposits should be generally devolved along with such matters as planning and the environment, given their importance to the Scottish environment and to Scottish communities. For example, I am thinking of the effects such exploitation would have on the economic development of adjacent communities, on the quality of the environment and the amenities of nearby towns and the countryside. There are also the consequences for the jobs of local people and their livelihoods. It is certainly a matter that should be left for the Scottish parliament to consider and regulate.

The ownership and exploitation of coal, oil and gas, however, are all reserved by Schedule 5, Section 4. It is considered that they should form an exception to the devolution of the exploitation of mineral deposits, given their importance as energy supplies and the need to maintain a uniform regulatory regime in these industries. Were valuable mineral deposits to be found in Scotland their exploitation should, in the first instance, be addressed in the context of the communities that will be affected by the development of the minerals. I believe that members of the Scottish parliament will be best placed to make decisions in the best interests of these people.

The noble Lord argues a case at the extreme in that there have been some unprecedented finds of valuable minerals. If that is the case, it is possible for the list of reserved matters in Schedule 5 of the Bill to be changed by virtue of an Order in Council under Clause 29. If mineral deposits of unprecedented national significance were discovered in the future, it would be possible for Schedule 5 to be amended if the Scottish and Westminster Parliaments agree that it is in the best interests of the United Kingdom to do so. If the noble Lord is arguing a case at the extreme, I have to answer him in a similar way. If it became a matter of absolute national importance and significance, it would be possible to amend the Act itself by legislation in this Parliament. But I do not anticipate that. I do not believe that the noble Lord creates a situation which is grounded in sufficient reality for us to make provision for it in the Bill. On that basis, I trust that he will be able to withdraw his amendment.

Lord Selkirk of Douglas

My Lords, I am grateful to the Minister for his response. But there is a basic inconsistency in it because coal, oil and gas are reserved, but uranium, which can be used as a nuclear fuel, is not reserved. I am simply saying to the Minister that if uranium deposits are discovered in considerable quantities, it is inconceivable that the United Kingdom Parliament would say that it is not a matter for it. If the United Kingdom Parliament intervenes and does what the Minister says by introducing an Order in Council, the Scottish parliament will very much resent such interference. However much the Minister may say that the United Kingdom Parliament is sovereign, if it is not a reserved matter the Scottish parliament will very much resent that interference and it will give rise to conflict between the two parliaments.

I am suggesting to the Minister that it would be better if this matter was thought out in greater depth and these matters reserved, otherwise he will be storing up problems for the future. Having said that, I have put down a marker and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hardie moved Amendments Nos. 226A to 226D:

Page 87, line 4, leave out from ("authority") to ("a") in line 5 and insert ("if some of its functions relate to reserved matters and some do not, unless it is"). Page 87, leave out lines 14 and 15 and insert— ("( ) An authority to which this paragraph applies is referred to in this Act as a Scottish public authority with mixed functions."). Page 87, line 17, at end insert ("(referred to in this Act as a Scottish public authority with no reserved functions)"). Page 87, line 29, at end insert—

("Financial assistance to industry

.—(1) This Schedule does not reserve giving financial assistance to commercial activities for the purpose of promoting or sustaining economic development or employment.

(2) Sub-paragraph (1)—

1. (a) does not apply to giving financial assistance to any activities in pursuance of a power exercisable only in relation to activities which are reserved,
2. (b) does not apply to Part I of this Schedule, except paragraph 9, or to a body to which paragraph 3 of this Part of this Schedule applies,
3. (c) is without prejudice to the exceptions from the reservations in Sections 2 and 3 of Head 5.

(3) Sub-paragraph (1) does not affect the question whether any matter other than financial assistance to which that sub-paragraph applies is reserved.").

The noble and learned Lord said: My Lords, with the leave of the House, I should like to move Amendments Nos. 226A to 226D en bloc. I beg to move.

On Question, amendments agreed to.

Baroness Ramsay of Cartvale moved Amendment No. 226E: Page 87, line 31, after first ("to") insert ("the subject-matter of").

The noble Baroness said: Amendments Nos. 226E and 226F constitute drafting amendments to the provisions of paragraph 4 of Schedule 5 which say how references to "any enactment" in Schedule 5 are to be read.

Schedule 5 describes reserved matters and generally speaking is intended to fix those matters as at the principal appointed day. This is done sometimes by using general words and sometimes by referring to the subject matter of an enactment. In both cases it is intended that the description is fixed as at the principal appointed day but what may fall within the description may change.

At the moment the Bill provides that all enactments referred to in Schedule 5 are to be read as they have effect on the principal appointed day. That is correct where an enactment is referred to in order to identify subject matter. The reserved matter is the subject matter of that enactment on the principal appointed day.

However, where the reference is not to the subject matter of an enactment—for example, on page 72, at line 38, part of the reservation of insolvency is described in terms of, any other enactment relating to the sequestration of the estate of any person — it is appropriate for the reference to be dynamic and automatically to cover future enactments. The amendment permits this to happen. I beg to move.

On Question, amendment agreed to.

Baroness Ramsay of Cartvale moved Amendment No. 226F: Page 87, line 32, after ("to") insert ("the subject-matter of").

On Question, amendment agreed to.

Schedule 8 [Modifications of enactments]:

Lord Hardie moved Amendment No. 226G: Page 96, line 10, at end insert—

("United Nations Act 1946 (c.45)

. In section 1 of the United Nations Act 1946 (measures to give effect to decisions of Security Council), in subsection (4), for the words following "shall" there is substituted "forthwith after it is made be laid—

1. (a) before Parliament; and
2. (b) if any provision made by the Order would, if it were included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, before that Parliament."").

The noble and learned Lord said: My Lords, Section 1 of the United Nations Act enables Her Majesty, by Order in Council, to give effect to resolutions of the Security Council. Noble Lords will be aware that that happened recently in connection with the venue of the proposed trial in the Lockerbie case following the United Nations resolution.

Amendment No. 226G amends the wording of subsection (4) of Section 1 of the Act to provide that any Order in Council made under it will be laid before the Scottish parliament as well as before Westminster if any provision in the order would be within the legislative competence of the Scottish parliament. I beg to move.

Lord Mackay of Drumadoon

My Lords, while I can well understand why this amendment has been tabled, perhaps the noble and learned Lord the Lord Advocate can explain whether or not it would be competent for the Scottish parliament to challenge, either in principle or in detail, an Order in Council which may be laid before it in the terms of this amendment.

Lord Thomson of Monifieth

My Lords, can the noble and learned Lord also say what would happen if there was a dispute between the Scottish parliament and the Westminster Parliament in that regard?

Lord Hardie

My Lords, perhaps I may deal with both questions together. The amendment is designed to cover a situation similar to that surrounding the Lockerbie trial. If there were a United Nations resolution which affected a Scottish criminal trial, then to give effect to that resolution there would require to be an Order in Council. However, because it affects the Scottish criminal law, the intention would be to place it before the Scottish parliament as well as the Westminster Parliament.

Of course, the Scottish parliament would be obliged to give effect to the United Kingdom's international obligations in terms of the United Nations resolution, which would call on the United Kingdom as a whole to comply. The Order in Council, having been ratified by the Scottish parliament, would enable the Scottish courts to proceed in accordance with Scottish procedure.

10.15 p.m.

Lord Mackay of Drumadoon

My Lords, before the noble and learned Lord sits down, he said that the Order in Council would be ratified by the Scottish parliament. I have looked at the United Nations Act 1946 and, as I understand it, the procedure involves the provision being laid before this Parliament and, quite frankly, this Parliament has to take it or leave it because it involves implementation of an international obligation.

Lord Hardie

My Lords, the noble and learned Lord is correct. "Ratified" was the wrong word. Indeed, I believe that I referred earlier to the provision being "laid before".

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 226H:

Page 97, line 18, leave out from ("Scotland)") to end of line 24 and insert—

1. ("(a) in subsection (9)—
1. (i) after "effect" there is inserted "with the omission of subsection (8) and", and
2. (ii) in paragraph (a), for "(8)" there is substituted "(7)", and
2. (b) after that subsection there is inserted

"(10) The remuneration of members of the Lands Tribunal for Scotland shall be charged on the Scottish Consolidated Fund.").

The noble and learned Lord said: My Lords, this is a drafting amendment. The amendments made by the Bill to the Lands Tribunal Act 1949 ensure that remuneration of members of the Lands Tribunal is a charge on the Scottish Consolidated Fund. The amendment makes the position clearer than did the original provision. I beg to move.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 226J:

Page 97, line 42, at end insert—

("Superannuation Act 1972 (c.11)

. In section 1(6) of the Superannuation Act 1972 (superannuation as respects civil servants, etc.), for "or the Consolidated Fund" there is substituted "the Consolidated Fund or the Scottish Consolidated Fund".").

The noble Lord said: My Lords, this amendment will enable the Minister responsible for the Civil Service to admit persons remunerated out of the Scottish Consolidated Fund to the Principal Civil Service Pension Scheme where that may be appropriate. I beg to move.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 226K:

Page 98, leave out lines 20 to 32 and insert— ("(2) After section 23 there is inserted—

"Acts of the Scottish Parliament etc.

23A.—(1) This Act applies in relation to an Act of the Scottish Parliament and an instrument made under such an Act only to the extent provided in this section.

(2) Except as provided in subsection (3) below, sections 15 to 18 apply to—

1. (a) an Act of the Scottish Parliament as they apply to an Act,
2. (b) an instrument made under an Act of the Scottish Parliament as they apply to subordinate legislation.

(3) In the application of those sections to an Act and to subordinate legislation—

1. (a) references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and
2. (b) the reference in section 17(2)(b) to subordinate legislation includes an instrument made under an Act of the Scottish Parliament.

(4) In the application of section 20 to an Act and to subordinate legislation, references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament."

(3) In Schedule 1 (words and expressions defined), the following definitions are inserted in the appropriate places— "Act" means an Act of Parliament. "Enactment" does not include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament."").

The noble Lord said: My Lords, government Amendment No. 226K is technical. It seeks to clarify the provisions contained in paragraph 14 of Schedule 8 which amend the Interpretation Act 1978 so that it deals with the interaction between Westminster legislation and Acts of the Scottish parliament. That is the new Section 23A.

The final part of the amendment is new and provides a general rule, as a starting point, about references to Acts and enactments in future Westminster legislation. It inserts two definitions in Schedule 1 to the 1978 Act which provide that the terms "Act" and "Enactment" will not include Acts of the Scottish parliament or instruments made under an Act of the Scottish parliament. I beg to move.

Lord Mackay of Drumadoon

My Lords, I have some recollection that yesterday when the noble Baroness, Lady Ramsay of Cartvale, used the words "technical amendments", my ears pricked up. Perhaps I may advise the noble Lord, Lord Sewel, that when he uses similar words my ears similarly prick up.

This is a substantial amendment and the fact that it comes at the eleventh-and-a-half hour of the debate on the Bill is a matter of surprise. As I understand it, the effect of the amendment is to provide that a substantial number of the sections of the Interpretation Act 1978 should have no application to the construction of Acts of a Scottish parliament. That is contrary to the impression that I have gained throughout our debates on the Bill.

Earlier today, in anticipation of this debate, I went to the Library and obtained a copy of the 1978 Act. Having done so, I can advise the House that it is instructive to look at the rules of construction of statutes which are disapplied by this, at first sight, minor amendment but which in my view is a very substantial amendment.

Section 1 of that Act states: Every section of an Act takes effect as a substantive enactment without introductory words".

Section 4 then states: An Act or provision of an Act comes into force—

1. (a) where provision is made for it to come into force on a particular day, at the beginning of that day;
2. (b) where no provision is made for its coming into force, at the beginning of the day on which the Act receives the Royal Assent".

Section 5 of the Act refers to Schedule 1, which gives assistance on how certain words fall to be construed. They include words which we discussed in a little detail earlier in the proceedings on the Bill when debating the provisions of Clause 25; namely, the meaning of the words, "oath" and "affidavit". Those words are defined by Schedule 1 as including affirmation and declaration. The schedule also includes useful assistance on how one interprets other terms such as "Lord Chancellor", "Sheriff' and "Writing".

I move on now to Section 6, which states that, unless the contrary intention appears—

1. (a) words importing the masculine gender include the feminine;
2. (b) words importing the feminine gender include the masculine"—

perhaps I may refer back to the amendment that we discussed yesterday on the Queen's Printer in Scotland in that respect. Section 6(c) then refers to the fact that, words in the singular include the plural and words in the plural include the singular".

The legislation includes provisions dealing with how one construes references to distance, time and other matters in the construction of statutes.

I could go on, but I do not believe that it is necessary for me to do so. It is clear that Amendment No. 226K disapplies a substantial number of the provisions of the Interpretation Act 1978 from the construction of Acts of the Scottish parliament. I personally have some concern as to the competency of that parliament enacting an interpretation Act that would bind the English and Northern Irish courts in the interpretation of Acts of the Scottish parliament. It would undoubtedly be within the competence of the Scottish parliament to bind the Scottish courts, but, in view of the provisions of Clause 28(2)(c) as currently drafted, it might be possible to argue that Clause 28(2)(a) would preclude the Scottish parliament from laying down rules which would bind the English and Northern Irish courts as to how they construed such Acts.

However, much more importantly, I believe that is a very serious mistake to lay down on the face of the Bill in the stark terms set out in the amendment a divergence of approach to the question of construction of statutes, which is a necessary consequence of the words which the draftsmen have used on this occasion. As I have said on more than one occasion, after devolution when members of the Scottish parliament have been elected and the latter is up and running, the man in the street in Scotland will wish to treat the legislation coming from this Parliament in exactly the same way as he treats legislation coming from the Scottish parliament. I believe that the courts should follow a similar approach. Therefore, I must express grave concerns about the amendment, which, as I construe it, seeks to disapply a major share of the provisions of the Interpretation Act 1978.

Lord Hope of Craighead

My Lords, I think perhaps it might be convenient for me to add a few words to what the noble and learned Lord has said. As I read the amendment, its effect will be quite dramatic so far as concerns the Interpretation Act. Indeed, the only sections of that Act which would continue to apply to Acts of the Scottish parliament are Sections 15 to 18 and Section 20. I believe that that would be the effect of the amendments to Schedule 1, which seem to be a complete reversal of what was, and still is, in the schedule prior to the making of these amendments.

I would be able to understand this approach if the Minister could tell us that one of the first measures which would be introduced by the Scottish parliament was a fresh interpretation Act. While I share reservations as to whether that would be competent as regards the interpretation of measures in courts outside those in Scotland, at least it would indicate to us that the important parts of the Interpretation Act which one would need to use in order to interpret Scottish legislation would be available in the future when Scottish legislation is being interpreted.

An alternative approach might be to build some measure into this Bill which would provide equivalent measures with amendments suitable for the interpretation of Scottish enactments. In any event, there is a further point that troubles me which makes me suggest, with the greatest respect to the Minister, that it might be wise to take this amendment away and bring it back at Third Reading. I am not at all clear why reference has not been made to some of the other sections in the Interpretation Act which might be relevant to the kind of amendment which is being provided for here.

Sections 15 to 18 deal with the repeal of enactments by Acts of the Scottish parliament, and therefore the machinery which the Interpretation Act applies for these repeals is machinery which the Scottish parliament will need. Therefore it is quite right that these sections should apply to the Scottish parliament. Section 20 has a similar effect because it deals with references to other enactments. Again, it will be useful to the Scottish parliament to have the benefit of Section 20. However, I am not at all sure why no mention is made of Sections 22, 23, and possibly 26 and 27, which might also have a bearing on the way in which Scottish legislation might interact with other measures.

These are complicated matters and it is a matter of some regret that this measure has come forward at this stage in the Bill. The interaction between the Interpretation Act and the ability of the Scottish parliament to legislate effectively with the benefit of that measure is of such great importance that I suggest this amendment is worth having a further look at. In any event we need a much clearer explanation as to its effect.

Lord Clyde

My Lords, I add a further little worry which has occurred to me. As I understand it, and if the view that has been expressed is correct, Section 5 gives the authority to Schedule 1, so how can amendments be made to Schedule 1 with any effect?

Lord Sewel

My Lords, I shall try to clarify the intention, but because of the importance of this matter if there are outstanding difficulties I shall be happy to take the measure away. However, I shall proceed for the moment. The intention has always been that the Scottish parliament will make its own provisions with regard to the interpretation of Acts of a Scottish parliament. In the first instance the intention is to make transitional provision in applying the Interpretation Act 1978. The idea is to use the power to make transitional provision to apply the 1978 Act to the Acts of the Scottish parliament unless and until the Scottish parliament makes its own provision. If that is satisfactory at this stage, we can keep the amendment on that understanding. If my explanation is not satisfactory, I am content to take it away.

Lord Hope of Craighead

My Lords, before the Minister sits down, perhaps I may say a few words. I would be perfectly content with the assurance that the transition from the Interpretation Act—which quite obviously deals with measures of this Parliament—was provided for in the way described. I understand that there will have to be some measure which can then be used by the Scottish parliament for the interpretation of its measures. However, it is not simply that point which troubles me. I wish to be sure that the continuing provisions—some of which are in the amendment—for interaction between Acts of the Scottish parliament and Acts of this Parliament are all fully in place. I see some of them but I want to be quite sure that the entire battery of measures that is needed to provide for the interaction between measures of this Parliament and of the Scottish parliament is in place.

10.30 p.m.

Lord Mackay of Drumadoon

My Lords, before the Minister replies to the noble and learned Lord, Lord Hope, this comes as something of a surprise to me in view of the remarks of the noble and learned Lord the Lord Advocate in Committee on 14th July. He said: I see no reason for any difference between construing an Act of the Scottish parliament by the courts and an Act of the UK Parliament'—[Official Report, 14/7/98; col. 248.] There may be an innocent explanation to this amendment and I fully accept that, possibly to his surprise, the Minister has been faced with a number of fairly searching questions for this time of day. What troubles me is that there appears to be somewhat of a departure from the approach that I understood the noble and learned Lord to advocate, one with which I fully sympathise; namely, that in construing Acts of the Scottish parliament and construing Acts of this Parliament, by and large a common approach should be taken.

When we bear in mind that it will be competent for the Scottish parliament to amend Acts of this Parliament, the idea that one has different rules of construction for different parts of an amended statute depending on where they originated is somewhat mind-boggling. It may make a lot of money for lawyers but it should not commend itself either to politicians or, more importantly, to the electorate.

It may be sufficient if the Minister will undertake to write to those who have contributed to this debate within the course of the next couple of days so that, if it is necessary to return to this matter at Third Reading, that can be done. I do not disguise my concern that, technical though Amendment No. 226K was explained to be, it seems to open up something of a hornet's nest as regards the interpretation of legislation.

Lord Sewel

My Lords, I wonder whether it would be acceptable if at this stage we kept with the amendments, and if I promised to write within the next day or two and we could return to this matter at Third Reading if there are issues outstanding. On that basis, I commend the amendment to the House.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 226L: Page 99, line 14, leave out from ("authority") to end of line 15 and insert ("with mixed functions or no reserved functions.").

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 226M:

Page 99, line 30, leave out from beginning to ("(members") and insert— ("(1) The Insolvency Act 1986 is amended as follows. (2) Anything directed to be done, or which may be done, to or by—

1. (a) the registrar of companies in Scotland by virtue of any of the provisions mentioned in sub-paragraph (3), or
2. (b) the assistant registrar of friendly societies for Scotland by virtue of any of those provisions as applied (with or without modification) in relation to friendly societies, industrial and provident societies or building societies,

shall, or (as the case may be) may, also be done to or by the Accountant in Bankruptcy.

(3) Those provisions are: sections 53(1), 54(3), 61(6), 62(5) (so far as relating to the giving of notice), 67(1), 69(2), 84(3), 94(3), 106(3) and (5), 112(3), 130(1), 147(3), 170(2) and 172(8).

(4) Anything directed to be done to or by—

1. (a) the registrar of companies in Scotland by virtue of any of the provisions mentioned in sub-paragraph (5), or
2. (b) the assistant registrar of friendly societies for Scotland by virtue of any of those provisions as applied (with or without modification) in relation to friendly societies, industrial and provident societies or building societies,

shall instead be done to or by the Accountant in Bankruptcy.

(5) Those provisions are: sections 89(3), 109(1), 171(5) and (6), 173(2)(a) and 192(1).

(6) In section 427").

The noble and learned Lord said: My Lords, the purpose of this amendment is to transfer certain devolved functions of the Registrar of Companies in Scotland and the Assistant Registrar of Friendly Societies for Scotland to the Accountant in Bankruptcy, who will be an office holder in the Scottish administration.

As a result of the amendment, functions relating to the devolved aspects of insolvency in Scotland will be concentrated in a single office holder appointed by and accountable to Scottish ministers. The Registrar of Companies and the Assistant Registrar of Friendly Societies for Scotland will be left with their reserve functions and therefore accountable to the United Kingdom Government and Parliament. I trust that noble Lords will see the sense of this approach. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, will the noble and learned Lord give some brief indication of the provisions in subsection (3)? There is a whole list of them and it is quite difficult to follow them. I am sure that the noble and learned Lord can at least lead us through the main ones so that we can fully understand what is to be devolved.

Viscount Thurso

My Lords, there is a great deal of meat in this amendment and I do not pretend to have been able to get to grips with all of it. Perhaps I may raise a small point for the Minister to answer. In this House we have often debated when to use "shall" and when to use "may". But for the first time in my experience in this House I see the phrase, shall, or (as the case may be) may which seems to be browning the covey somewhat.

Lord Hardie

My Lords, Section 84 (3) refers to resolutions as to the winding up of a company which require to be forwarded to the registrar and recorded by him in accordance with Section 380 of the 1985 Act. Section 89(3) deals with a voluntary winding up, where there is to be a declaration of solvency to be delivered to the registrar within 15 days of the resolution.

Section 94(3) provides that, in a member's voluntary winding up, on completion the liquidator is required to make an account of the winding up, showing how it was conducted, and to present it to a general meeting of the company within a week after the meeting and to send a copy of the account to the registrar, along with a return of the holding of the meeting and its date.

Section 106(3) provides that, in a creditor's voluntary winding up, when the company's affairs are fully wound up the liquidator is to make up an account of the winding up, to be presented at a general meeting of the company and a meeting of creditors. A copy of the account is to be delivered to the registrar of companies within a week.

Section 109(1) provides that in a voluntary winding up the liquidator is to deliver to the registrar of companies within 14 days after his appointment the prescribed notice of the appointment.

Section 112(3) provides that a copy of an order staying the proceedings in a winding up must be forwarded forthwith by the company to the registrar.

Section 130(1) provides that on the making of a winding-up order a copy must be forwarded by the company to the registrar, who is required to enter it in the records relating to the company.

Section 147(3) provides that any order of the court assisting the proceedings in a winding up is to be forwarded forthwith by the company to the registrar of companies, who is required to enter it in the records.

There are a number of other provisions. Perhaps the noble Lord, Lord Mackay of Ardbrecknish, could identify which particular provision he is concerned with.

With regard to the point made by the noble Viscount, I seek refuge in the draftsman on this occasion. I suspect that this is a drafting arrangement. I think that in this case the use of the words, shall, or (as the case may be) may", arises from the start of the subsection, which says that, Anything directed to be done [shall be done], or which may be done [or (as the case may be) may be done]". One can see the sense of the draftsman's approach on this occasion.

Lord Mackay of Drumadoon

My Lords, before the Lord Advocate sits down, I wonder whether he could assist us by identifying which of the provisions referred to in subsection (3) are affected by the word "shall" and which by the word "may". As he began this helpful discussion as to what these sections involve, perhaps he could deal with Sections 53(1), 54(3), 61(6) and 62(5). I may be wrong, but I do not think he dealt with them in detail.

Lord Hardie

The noble and learned Lord will be well aware of the provisions in the statute and will know which ones contain "shall" and which contain "may". If he is unaware of those, I shall write to him in due course. Section 53, subsections (1) and (5) relate to the appointment of a receiver in the prescribed form, as the noble and learned Lord will remember, to be delivered to the registrar of companies within seven days of an execution for registration. On receipt of the relevant document and the requisite fee, the registrar has to enter the particulars of the appointment in the register of charges. Section 54, subsections (3) and (4) provide that, where the receiver is appointed by the court, the court's interlocutor is required to be delivered to the registrar for registration by or on behalf of the petitioner within seven days. Again, there is a question of a fee.

I do not know whether there are any further details that the noble and learned Lord wishes to have. I am happy to deal with any particular provision.

Lord Mackay of Drumadoon

My Lords, I am sure that the noble and learned Lord will be happy to write to me in detail about the fees involved.

Lord Hardie

My Lords, I am sure that they are much more modest than the noble and learned Lord's fees.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 226N:

Page 100, line 31, after ("definitions),") insert—

1. ("(a) in the definition of "the Crown", after "of" there is inserted "the Scottish Administration or of",M and
2. (b)")

On Question, amendment agreed to.

Clause 118 [Interpretation]:

Lord Sewel moved Amendment No. 227: Page 55, line 30, at end insert— (""tribunal" means any tribunal in which legal proceedings may be brought").

On Question, amendment agreed to.

[Amendment No. 228 not moved.]

Clause 119 [Index of defined expressions]:

Lord Sewel moved Amendment No. 229: Page 57, leave out line 17.

On Question, amendment agreed to.

Lord Sewel moved Amendments Nos. 229A to 230: Page 57, line 19, column 2, leave out ("Section") and insert ("Sections 105(5A) and"). Page 58, line 16, at end insert— ("Scottish public authority with Paragraphs 1 and 2 of Part III of mixed functions or no reserved Schedule 5") functions

Page 58, line 21, at end insert—

("Tribunal

Section 118(1)")

On Question, amendments agreed to.

Clause 121 [Transitional provisions etc.]:

Lord Sewel moved Amendment No. 230A:

Page 58, line 37, after ("53(2)") insert ("and (3)").

On Question, amendment agreed to.

Clause 122 [Commencement]:

Lord Sewel moved Amendment No. 230B: Page 58, line 38, leave out from beginning to ("shall") and insert ("Sections 18 to 39, Parts II to V. sections 109 to 116 and section 117 (except so far as relating to paragraphs 9, 10, 17 and 21 of Schedule 8)").

The noble Lord said: My Lords, the effect of this, let us be frank, rather cryptic amendment is to bring the parts of the Scotland Bill which deal with elections into force immediately on Royal Assent. That is not to say that the elections themselves will take place immediately on Royal Assent. There will be a period of time between Royal Assent and the calling of the elections. It is just that this provision enables those aspects of the Bill dealing with elections to be brought into effect immediately after Royal Assent. Normally, provisions should not be brought into force less than two months after Royal Assent, which in this case would mean mid-January 1999. As the elections are to be held on 6th May 1999, this leaves little time for the detailed elections provisions under Clauses 11 and 14 to be put in place, not least because these are affirmative orders. The amendment therefore brings forward the commencement of the elections provisions allowing the orders to begin their parliamentary passage before Christmas. This, in turn, will ensure that the orders are in place well before the elections, which will be of advantage to electoral administrators and candidates alike. I am sure noble Lords will agree that this is a desirable objective.

I should note that there is a small lacuna in the amendment, in that it would inadvertently commence amendments to the Insolvency Act 1986 which have been inserted by Amendment No. 226M, which we discussed earlier. We therefore intend to make the necessary correction at Third Reading.

This is the last amendment with which we will deal tonight. It may be of benefit to the House if I indicate briefly a number of areas, in addition to those signalled earlier in debate, in which we may bring forward amendments at Third Reading. These include improving the layout of Schedule 5, the reservation of data protection in Schedule 5, the definition of administrative law, further minor amendments to Schedule 4, the appointment of civil servants by Scottish Ministers, the extension of the protection in Clause 23 to cover former Ministers and civil servants, the Registers of Scotland Trading Fund, the drafting of Clause 48(5), and further amendments in connection with the use of the term "enactment". We shall also be reinstating Amendment No. 204A, which the noble Earl, Lord Balfour, identified last night had been omitted from the Marshalled List because of a printing error. We are bringing it back. I hope that that is of assistance to the House. I beg to move.

10.45 p.m.

Lord Mackay of Ardbrecknish

My Lords, we are grateful to the Minister for that foretaste of some of the amendments that the Government will bring forward for Third Reading. I wonder whether the noble Lord could try to ensure that we get these amendments as soon as possible and, it is to be hoped, before we leave London for the weekend. In this case, I do not necessarily mean that the Government should wait until Friday. Whereas some of us may be here on Friday, other noble Lords may not be. Even if we receive the amendments informally, those of us who have taken part in the proceedings on the Bill will be grateful.

As far as I could follow them, I am certain that we will be welcoming many, if not all, of them as responses to points that have been made during the 14 days we have spent on the Bill. One of the interesting aspects of the Bill as it has gone through the House is that many of the points made in debate have been taken on board by the Government and, I suspect, have also led to a rethinking by the Government on other parts of the Bill. We have seen a fair raft of amendments from the Government.

Perhaps the final point I should make regarding this amendment is that those of your Lordships who thought that we were about to escape the Scotland Bill next Monday forever have just been told that before Christmas we will have more happy hours looking at the many orders which will have to be brought forward in order to run the elections. With that pre-Christmas present, I am content with the noble Lord's amendment.

Lord Mackie of Benshie

My Lords, will the noble Lord please consider returning to the practice of not having Scottish business on a Monday?

On Question, amendment agreed to.

In the Title:

[Amendment No. 231 not moved.]

House adjourned at fourteen minutes before eleven o'clock.