HL Deb 09 November 1998 vol 594 cc531-46

4.37 p.m.

Consideration of amendments on Third Reading resumed.

Clause 22 [Standing orders]:

[Amendment No. 11 not moved.]

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

Lord Sewel moved Amendment No. 12:

Page 10, line 42, leave out ("the Minister of the Crown,") and insert ("him (whether or not he continues to be a Minister of the Crown),").

The noble Lord said: My Lords, on the second day of Report the Government agreed to consider the amendment of the noble Lord, Lord Mackay of Ardbrecknish, that would extend to past Ministers of the Crown the same protection as is afforded to current Ministers of the Crown.

We have reflected on the amendment and conclude that it is indeed a valuable provision to make. Amendment No. 12 provides that the limitations set out in Clause 23(3) on the power of the parliament to impose a requirement on a person to attend its proceedings to give evidence, or to produce documents, also extend to former Ministers. We thought it sensible to extend this to former civil servants too, and that is what Amendment No. 13 does. In effect the parliament cannot impose requirements on a former Minister of the Crown or civil servant in relation to the exercise of ministerial functions, if it cannot impose such a requirement on the current Minister or his civil servants. I beg to move.

Lord Mackay of Drumadoon

My Lords, I welcome these two amendments which were discussed previously on 28th October, as the Minister said. They deal with a practical concern which I raised then. I am most grateful to the Government for responding positively.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 13:

Page 11, line 1, after ("person") insert ("who is or has been").

On Question, amendment agreed to.

Clause 31 [Scrutiny of Bills by the Scottish Executive]:

Lord Sewel moved Amendment No. 14:

Page 14, line 33, leave out from ("Parliament,") to end of line 39 and insert ("state that in his view the provisions of the Bill would be within the legislative competence of the Parliament.

(1A) The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision.

(1B) The form of any statement, and the manner in which it is to be made, shall be determined under standing orders, and standing orders may provide for any statement to be published.").

The noble Lord said: My Lords, in moving Amendment No. 14 I shall speak also to Amendments Nos. 15 to 17. Before I discuss the details of these government amendments I wish to make it clear that in proposing amendments we do not seek at this stage to disturb amendments made earlier by the House to Clause 32.

Government Amendment No. 14 revises the formulation of Clause 31 and extends it to require the presiding officer, on or before the introduction of a Bill, to make a statement as to whether or not a provision of a Bill would be within the legislative competence of the parliament. This is similar to the requirement placed on a member of the Scottish executive when introducing a Bill. It will ensure that the parliament is aware of the presiding officer's views on the vires of any Bill. This gives the parliament important guidance about the competence of the parliament and allows the presiding officer to express his concerns if he has any. The final part of Amendment No. 14 is about the form of the statement. It provides that the form of the statements made by the Scottish executive and the presiding officer shall be determined by standing orders.

Amendments Nos. 16 and 17 make consequential provision in Clause 32. Government Amendment No. 15 is a drafting amendment. It is consequential upon the amendment made by the House to Clause 32(2). Given the earlier amendment, there is no need to refer in Clause 31(1) to subsection (2) and so Government Amendment No. 15 removes a redundant provision.

Perhaps it would be helpful if I explain to your Lordships what our thinking is in relation to Clause 32 as it develops. Noble Lords have put forward a persuasive case regarding the difficulties that a presiding officer, challenged in this way, would face if the parliament were able to question his authority, and we do not disagree with their views. However, we have looked closely at what the amendment made earlier achieves and we do not think it has quite the right effect. It would give the presiding officer the right of veto over which Bills were to be introduced into parliament.

Our thinking at the moment is to seek a position which would have the effect of deleting subsections (1) and (2) of Clause 32. This will ensure that the parliament is well aware of the presiding officer's views and that the presiding officer is not left in the uncomfortable and, we honestly believe, undesirable position of having an absolute veto over what Bills can be introduced into the parliament. I hope that noble Lords will agree that this addresses their concerns about the risk of conflict between the presiding officer and the parliament, but in essence that is a matter for a later date.

4.45 p.m.

Lord Mackay of Drumadoon

My Lords, as the noble Minister very properly said, these amendments fall to be considered against what happened on the 28th July, when your Lordships first debated the detail of Clause 32, or Clause 31 as it then was, beginning at col. 1368. This resulted in a Division, in terms of which an amendment standing in the name of the noble Earl, Lord Mar and Kellie, was allowed, and another one in my name, which brought about the introduction of the words, A decision made by the Presiding Officer under subsection (1) shall not be capable of being overruled by the parliament".—[Official Report, 28/7/98; col. 1369.] I have to confess that when I first read the amendments tabled for Third Reading my impression was that the Government were content to accept their defeat on that occasion and were not minded to reverse the defeat that they had suffered. I then remembered, with a little prompting, the amendments which were put down at Report stage in relation to these two clauses. Amendment No. 119 was in identical terms to Amendment No. 14, as we now have it, and the next amendment, Amendment No. 120, sought to leave out subsections (1) and (2) of Clause 31, as it then was, and effectively to reverse the defeat suffered at the Committee stage.

After certain discussions with the noble Minister, Lord Sewel, and through the usual channels, I understood that it had been accepted by the Government that it is against the conventions of your Lordships' House, and indeed against the Denham Convention, to seek to overcome at a later stage of a Bill's passage through this House a defeat which the Government have suffered at an earlier stage. Having listened to the noble Minister this afternoon I have a mild concern, to put it no higher than that at this stage, that Amendment No. 14 is at the very least a stepping stone, and presumably a necessary stepping stone, to reversing that defeat.

If that is correct, the allowance of this amendment at this stage might amount to a breach of the Denham Convention, which was followed rigorously by the previous government despite the wishes of certain very senior Members of that government in another place who took some persuading, I understand, that the convention fell to be honoured in the way that it was. I therefore noted that when the noble Lord, Lord Sewel, said he was not seeking at this stage to overturn the defeat, this was something that might well come at a later stage.

If all that the Government intend to do in another place is to make the Bill more effective, that may be acceptable. But if this Amendment No. 14 is an attempt to overturn the earlier defeat then that may prove to be unacceptable, albeit that it may be something we are not really aware of until the Bill returns to this House, if that ever proves to be necessary. The noble Lord said it would be wrong for the presiding officer to have an absolute veto. It may be a necessary part of a devolution settlement of the nature which the Government are bringing forward that the presiding officer, and the clerks who work for him, may in fact have something in the nature of an absolute veto in deciding which Bills are presented to parliament and, indeed, which amendments to Bills are tabled.

To some extent the Clerks of your Lordships' House in the Public Bill Office have a veto in that in certain instances they can refuse to accept amendments because they do not fall within the Long Title or because they are in similar terms to amendments which have been debated and voted on at an earlier stage. I understand that in some instances the view adopted by the Public Bill Office is one which may not be particularly welcomed by the Government, and on other occasions it may not be welcomed by members of the Opposition parties. However, it is respected as a necessary and valuable procedure for regulating the affairs of your Lordships' House. So it may be wrong to rule out the presiding officer having an absolute veto, as the noble Minister rather suggested in his speech was the Government's intention.

So far as this afternoon is concerned, I would be content to allow these amendments to be accepted, but I hope that before any amendments are tabled in another place, and before the Government decide what view they should adopt when this Bill returns to another place, it may be possible for my comments to be given further consideration; and as always I would be happy to discuss the matter further with the noble Minister.

The Earl of Mar and Kellie

My Lords, the noble and learned Lord, Lord Mackay of Drumadoon, is right. The Public Bill Office does have a veto, and I have enjoyed being in receipt of one on more than one occasion. I think I am content with the amendment because it is important that the presiding officer should form a view about whether the proposed legislation is intra or ultra vires. I suspect that in most cases it is unlikely that a Bill will be introduced which is wholly ultra vires and that this is a notice being served on the person proposing the legislation that they should get it sorted out during the process of scrutiny.

Lord Sewel

My Lords, as regards the point made by the noble and learned Lord, Lord Mackay of Drumadoon, I wish to make it absolutely clear that Amendment No. 14 does not breach any convention. It would apply irrespective of the decision on the reversal of the defeat suffered by the Government previously. So, no matter what happens in relation to that separate clause, we should still seek the provision in this clause. The amendment simply ensures that the parliament has the presiding officer's views on the vires of any Bill. I had hoped to be of some help to the House in indicating the way the Government's thinking was going; I have learnt my lesson.

Lord Mackie of Benshie

My Lords, I wish to make a simple point about correctness to the Lord Mackay of Drumadoon. The expression, "noble Minister", is one that I dislike. Lords are "noble" by axiom and by custom. Ministers and ability are a matter of opinion.

On Question, amendment agreed to.

Lord Sewel moved Amendments Nos. 15 to 17:

Page 14, line 40, leave out (", subject to subsection (2),").

Page 14, line 41, leave out ("Presiding Officer decides") and insert ("decision of the Presiding Officer under section 31(1A) is").

Page 15, line 1, leave out from beginning to ("shall") and insert ("Such a decision of the Presiding Officer").

On Question, amendments agreed to.

Clause 35 [Power to intervene in certain cases]:

Lord Mackay of Drumadoon moved Amendment No. 18:

Page 16, line 20, leave out ("at any time during").

The noble and learned Lord said: My Lords, perhaps I may also speak to Amendments Nos. 18 to 21. I stand corrected by the noble Lord, Lord Mackie of Benshie. I should of course have referred to, "the noble Lord the Minister". Perhaps I may gently encourage the noble Lord, Lord Mackie of Benshie, to look at his intervention in Hansard tomorrow to see whether, in addressing me, he referred to me in the correct terms.

Lord Mackie of Benshie

My apologies, my Lords.

Lord Mackay of Drumadoon

My Lords, one benefit that law officers and former law officers have is that they are always regarded as learned, whether or not that is justified.

I return briefly, but seriously, to a point that I raised on Report on 28th October. It is focused in Amendments Nos. 18 to 21 on Clause 35. I wish to take up a concern expressed by the noble and learned Lord, Lord Hope of Craighead, in Committee regarding whether Clause 35 as currently drafted might result in the judicial committee having to hear to completion references made under Section 33. The problem arose in terms of Clause 35(3)(c). The noble and learned Lord felt that, as drafted, the clause would require the judicial committee to go ahead with a case even if the Secretary of State knew all along that he would make an order within the terms of his power to do so under subsection (1).

On that occasion the drafting of my amendment was correctly criticised by the noble and learned Lord the Lord Advocate. I have redrafted the amendments and I hope that they are now immune from the criticism made on that occasion. The sole purpose of these amendments is to prevent the judicial committee carrying on with work which the noble and learned Lord, Lord Hope of Craighead, thought to be unnecessary. I beg to move.

Lord Hardie

My Lords, I am grateful to the noble and learned Lord for explaining Amendments Nos. 18 to 21. However, the Government do not consider that they are necessary, nor that they would meet the concern that he has raised.

As I understand the noble and learned Lord's explanation, he is focusing on the point raised by the noble and learned Lord, Lord Hope of Craighead, in Committee. I assure the House that we have taken the point seriously. We appreciate that, if the Secretary of State uses his power to prohibit a Bill proceeding to Royal Assent after the judicial committee has determined that a Bill is within the legislative competence of the parliament, it could be argued that this would be wasteful of the time of the judicial committee. However, as I have explained, the noble Lords' amendment would not have the effect of preventing that. It would be prevented only if Clause 35(3)(c) was deleted.

As the Government have already made clear on a number of occasions, this and the other powers of intervention are meant to be long-stops. Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used. The incentives to avoid their use will be particularly strong in the case of a Bill that has been examined by the judicial committee. Against that background we concluded that it was right for the Secretary of State to have the option of using his power under Clause 35 after the vires of a Bill have been established.

Perhaps I may explain the point in a little more detail. Under Clause 33 questions about devolution issues can be referred to the judicial committee by the law officers of the United Kingdom Government, followed by the Lord Advocate as law officer to the Scottish executive. There is a variety of reasons why that may happen. The United Kingdom Government might be concerned that the Scottish parliament was straying beyond its competence, or the Lord Advocate could have doubts about the vires of a Private Member's Bill.

In the Government's view, it should be for the law officer who made the reference to decide whether it should be withdrawn if the Secretary of State indicated an intention to use Clause 35. A law officer to the United Kingdom Government might choose to do that in some circumstances; however, in other circumstances there might be a strong case for the devolution issue concerned to be determined by the committee. Even if the Bill concerned does not subsequently proceed in the same form, it may be desirable for the issue of vires to be clarified. With that explanation, I invite the noble and learned Lord to withdraw the amendment.

Baroness Carnegy of Lour

My Lords, before the noble and learned Lord sits down, and with the leave of the House, he is repelling this amendment on the grounds that the circumstances he described might happen. He has not said that the judicial committee's time could be wasted in certain circumstances. If that were the case, and in view of the important business conducted by the judicial committee—we have only to turn our minds to what is presently happening elsewhere in this House to see how important that can be—why not accept the amendment? I do not know whether it is a matter of nobody listening to the noble and learned Lord when he talks to them, but this provision seems so sensible that I do not understand why he has not persuaded the Cabinet.

Lord Hardie

My Lords, I am sorry if the noble Baroness thinks that I do not listen. I assure her that I always listen to submissions on the part of noble, and noble and learned Lords. Perhaps I may explain what would happen.

If a reference was made to the judicial committee, and if after the four-week period but during the period of the reference the Secretary of State decided that he wished to make an order, what would happen is that the Secretary of State would make that fact known to those parties who were parties to the proceedings before the judicial committee. It would be for the law officer who had made the reference to the judicial committee to consider whether or not to withdraw it. I imagine that in most cases the law officer would withdraw the reference for the very reason given by the noble Baroness—namely, to save the time of the judicial committee.

However, there might also be cases where the law officer considered that the issue in the case ought to be determined by the judicial committee so that clarification could be sought from the supreme judicial body as to the proper construction, so that the same difficulty would not arise in future.

By rejecting the amendment, we keep the flexibility available to the law officer—not just the Lord Advocate but the law officer of the United Kingdom Government. As I said, the law officer of the United Kingdom Government may well decide, although the Secretary of State will be a member of the United Kingdom Government, in certain special circumstances that he or she still wishes for a decision of the judicial committee. It is for that reason that we invite the noble and learned Lord to withdraw the amendment. I hope that this additional explanation has clarified my position. I apologise to the House if my explanation was not clear on the first occasion.

Lord Hope of Craighead

My Lords, before the noble and learned Lord sits down, and again with the permission of the House, is it envisaged that the judicial committee will be kept informed about the kind of discussions to which the noble and learned Lord referred? I ask that question because it seems to me that on occasions some of the issues which require reference to the judicial committee will be extremely urgent. We have the experience, with matters going on upstairs this week, of the disruption to the programme of hearings which can occur if urgent cases are slipped in out of order.

Plainly it is the responsibility of the judicial committee to deal promptly with urgent cases; but if the case is one where hanging over the decision is the Secretary of State's view which will result in the legislation not proceeding anyway, it might well affect the view about timetabling. It would be beneficial to the jucidial committee to know about it.

Lord Hardie

My Lords, the rules for the judicial committee would be a matter for that committee. I see no reason why the committee should not be advised that the matter was in issue and that the case was therefore no longer as urgent as one might normally expect.

Lord Mackay of Drumadoon

My Lords, it is quite obvious that since the matter was first raised much further consideration has been given to it. I am grateful to the noble and learned Lord the Lord Advocate for making that clear. As he rightly says, rules will have to be made for the work of the judicial committee. My recollection is that we have had some discussion already about the need for an order in council and whether it will be necessary to make a provision about the issue in the order in council. It may be a matter for further reflection.

So would the issue which the noble and learned Lord raised as to whether the law officer who made the reference would have the right to withdraw it. There may well be an argument that if one law officer has placed an issue before the judicial committee, it is not up to him to withdraw it unilaterally. There may be the view that the other law officers have a right to insist that it goes ahead and the judicial committee itself, having been seized of it, may fall to be given discretion or to have a role in the matter. That too is an issue which might be addressed in the Order in Council, a draft of which we have already seen.

I accept the force of the point made by the noble and learned Lord that in certain instances it may be desirable that the devolution issue raised be determined, even though it is intended that the Secretary of Sate should, in the fullness of time, proceed with a Clause 35 order because the judicial committee's decisions on determinations will be of value in future cases, not just in the one before them.

I am not entirely satisfied that my amendments would have precluded that from happening, but I am satisfied that the concern which was raised initially by the noble and learned Lord, Lord Hope of Craighead, has been given much fuller consideration. For those reasons, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

[Amendments Nos. 19 to 21 not moved.]

Clause 36 [Stages of Bills]:

[Amendment No. 22 not moved.]

Clause 40 [Proceedings by or against the Parliament etc.]:

Baroness Ramsay of Cartvale moved Amendment No. 23:

Page 18, line 45, after second ("the") insert ("Parliamentary").

The noble Baroness said: My Lords, this is a drafting amendment to ensure drafting consistency in the Bill. It makes it clear that "the corporation" referred to in Clause 40 is the Scottish parliamentary corporate body. As provided for by Clause 21(1), the SPCB is referred to throughout the Bill as "the Parliamentary corporation". The amendment brings the reference in Clause 40 into line with that. I beg to move,

On Question, amendment agreed to.

[Amendment No. 24 not moved.]

Clause 44 [The Scottish Executive]:

Lord Sewel moved Amendment No. 25:

Page 20, line 5, at end insert—

("(3) A person who holds a Ministerial office may not be appointed a member of the Scottish Executive; and if a member of the Scottish Executive is appointed to a Ministerial office he shall cease to hold office as a member of the Scottish Executive.

(4) In subsection (3), references to a member of the Scottish Executive include a junior Scottish Minister and "Ministerial office" has the same meaning as in section 2 of the House of Commons Disqualification Act 1975.").

The noble Lord said: My Lords, on Report we accepted noble Lords' valid concerns that it would be inappropriate for a person to hold office as a Minister of the Crown and as a member of the Scottish executive. We agreed to come back at Third Reading with amendments which would prevent that. This is exactly what the amendment does. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, I warmly welcome this government amendment. It has been quite a long haul to persuade the Government of its merits. I re-read the defences of the Government's position which were put forward by the noble Baroness, Lady Ramsay, at Committee stage. I will spare her blushes by not repeating any of the defences.

This is a sensible proposition. We have argued it through the Welsh and the Scottish Bills. We have received absolutely no agreement from the Government on the Welsh Bill and in some ways they have got themselves into a real jam, simply because they did not accept our amendment. If they had done so, their political problems in Wales would perhaps not be on the same scale as they are today. However, that is an aside. Why should I intrude on a private grief? I shall not even say that I have some sympathy with Mr. Rhodri Morgan. I hope that he has not allowed himself to be beaten into submission. The amendment we are now discussing would have made the position in Wales much clearer.

However, be that as it may, we have made progress with the Scottish Ministers who are clearly more enlightened and more open to argument than are our Celtic cousins who are looking after the Welsh Bill. This is sensible. Mr. Donald Dewar rightly recognised that at the beginning when for a few hours he thought he might manage to be the Secretary of State for Scotland and the First Minister or Prime Minister for Scotland. He quickly saw that that was an impossible position and made it clear that he would not contemplate it. He was absolutely right and the Government are right. I am grateful to them for accepting our argument and warmly welcome the amendment.

Lord Crickhowell

My Lords, I join in congratulating the Minister on moving such a sensible amendment. I was astonished when I saw it on the Marshalled List in the light of the arguments that were advanced, day after day, in the various stages of the Welsh Bill, as to why we should not have a similar amendment. Initially I was ridiculed and told that the point I was making was absurd and that the whole thing was totally unnecessary.

When this House backed me and we sent our amendment to the Commons, the tone of the Government changed because they had discovered that quite a lot of their people in the other place thought that the proposition that there should be a dual mandate was pretty unsatisfactory. The Minister in another place conceded a large part of the case.

Nevertheless, when pressed by Mr. Dafydd Wigley to have a clear-cut amendment, the Government refused and referred to the need for transitional arrangements during the handover period, while the orders were being made. They argued that there might be future occasions on which it would be desirable to have a dual mandate and that therefore it would be quite wrong not to have scope for it; that the flexibility was needed. However, apparently now in the Scottish Bill flexibility is not needed. I am not sure why it should be needed in the case of the Welsh Bill and not in the case of the Scottish Bill, but there we are.

I take the opportunity to comment in the light of events taking place, I believe, this very afternoon in Wales, where decisions are being taken about the form of election to be held for the leadership of the Labour Party in the assembly in Wales. I remind noble Lords of the firm commitments that were given in both Houses as to what would happen in Wales. We did not succeed in getting a statutory prohibition written in, as is now the case in Scotland. But we received the undertaking that the dual mandate would only be held for a short transitional period. On the specific authority of the then Secretary of State for Wales, who on that occasion was sitting on the steps of the Throne, the Minister who replied to the House, the noble Lord, Lord Williams of Mostyn, said that he would be surprised and disappointed if the period of the dual mandate extended to as much as 12 months.

I hope that those specific undertakings, on the basis of which I withdrew the amendment, will not now be overlooked, that Ministers will hold to their promises, particularly in the light of the amendment that has now been moved for Scotland, and that there will be no question of a dual mandate being held by the present Secretary of State or indeed anyone else in Wales.

Lord Sewel

My Lords, as would be expected, I welcome the welcome that the amendment has received. For the sake of accuracy, perhaps I may point out that it is not so much the blushes of the noble Baroness, Lady Ramsay of Cartvale, that should be spared but my own. I plead that I was trying to look after the future employment prospects of the noble Lord, Lord Mackay of Ardbrecknish, when advancing those arguments. Perhaps I may say to the noble Lord, Lord Crickhowell, that I almost came close to reconsidering my position on this amendment the further he advanced his case. The point we are making is that Scotland is Scotland and Wales is Wales. Scotland will have a parliament with primary legislative responsibility. That is fundamentally different from the Welsh Assembly, which has only secondary legislative powers. On that basis, I commend the amendment to the House.

On Question, amendment agreed to.

Clause 52 [Exercise of Functions]:

Baroness Ramsay of Cartvale moved Amendment No. 26:

Page 23, line 17, leave out ("Subsections (3) and (4) do") and Insert ("Subsection (4) does").

The noble Baroness said: My Lords, Amendment No. 26 is a drafting amendment to Clause 52 to remove an unnecessary reference to Clause 52(3) in Clause 52(5). Clause 52(3) provides that statutory functions of the Scottish Ministers shall be exercisable by any member of the Scottish executive. Clause 52(5) currently provides that subsection (3) does not apply in relation to the exercise of functions conferred on the First Minister alone and to the Lord Advocate's retained functions. However, as these functions would not be functions of the Scottish Ministers, it is unnecessary to provide that Clause 52(3) does not apply. Accordingly, the amendment deletes the reference to Clause 52(3). I beg to move.

Lord Mackay of Drumadoon

My Lords, the noble Baroness will be delighted to hear that on this occasion I fully accept her explanation that it is a technical amendment. I have to say that, before she spoke, I did not think that it was, but I am now quite persuaded that it is. I do not oppose the amendment.

On Question, amendment agreed to.

Clause 53 [General transfer of functions]:

Baroness Ramsay of Cartvale moved Amendment No. 27:

Page 24, line 5, at end insert—

("( ) This section and section 54 are modified by Part III of Schedule 4.").

The noble Baroness said: My Lords, I am tempted to say that this is yet another drafting amendment. The amendment makes it clear that Clauses 53 and 54, which transfer to the Scottish Ministers those ministerial functions which are exercisable within devolved competence, are modified by Part III of Schedule 4. I could give a good deal more detail if it were asked for. However, in the circumstances, I commend the amendment to the House. I beg to move.

Lord Renton

My Lords, we shall not contest the amendment but I have to express surprise about the use of the word "modified". It is a fairly new word to be used in the statute book. Indeed, I do not remember it being used until this Session. In the course of time the word will no doubt be given a particular meaning and effect, but I hope that the Government will resist using it as much as they can. I do not think it is a good expression to use. "Modify" generally means "reduce". That is not what is intended here. It is intended to say: This section and section 54 are to be considered in the light of Part III of Schedule 4". I hope that I am not out of order in saying that we should in future be very careful about the use of the word "modify".

Baroness Ramsay of Cartvale

My Lords, I shall pass on the noble Lord's comments to the parliamentary draftsman. I am sure that what he has said will be read and noted.

On Question, amendment agreed to.

Clause 71 [Existing debt]:

Lord Hardie moved Amendment No. 28:

Page 31, line 18, leave out ("This section applies") and insert ("Subsections (2) to (4) apply").

The noble and learned Lord said: My Lords, in moving Amendment No. 28, I shall, with the leave of the House, speak also to Amendments Nos. 29, 30, 31 and 78. These are technical amendments. Their purpose is to allow provision to be made to ensure that outstanding debt owed by the Registers of Scotland Trading Fund to the National Loans Fund is repaid after devolution when the Registers of Scotland become part of the Scottish administration.

As noble Lords will be aware, the Keeper of the Registers of Scotland is responsible for maintaining various registers. He exercises those functions through the Registers of Scotland Executive Agency. It operates as a trading fund under existing trading funds legislation. That legislation will cease to apply to the Registers of Scotland when it ceases to be a United Kingdom government department and becomes part of the Scottish administration on devolution. That would leave outstanding debt owed by the trading fund to the National Loans Fund in limbo.

The effect of the amendments will be to enable the Secretary of State to order that the existing debt which is deemed to be owed by the trading fund to the National Loans Fund be treated as an advance from the Secretary of State to Scottish Ministers. The Scottish Ministers will have to continue to repay the debt on existing terms and conditions and the Secretary of State will pay the proceeds into the National Loans Fund. This will ensure that the outstanding debt can continue to be repaid to the fund. I beg to move.

5.15 p.m.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the noble and learned Lord for his explanation. I think it is a good job he did not say that it is a drafting amendment. It certainly sounded fairly technical and seemed to have some connection with debt relief, which is very fashionable these days. However, it sounded all right. I suspect that I shall have to read it fully to understand and appreciate it. I think we are content with the amendment.

Lord Simon of Glaisdale

My Lords, the noble and learned Lord is right in saying that this is a technical amendment in the sense that it deals with the technicalities of advances from the Treasury. However, it is on the face of it a substantial amendment. In fact, the whole of page 4 of the Marshalled List is made up of government amendments. So that calls for us to think what has happened.

When the Bill was introduced into this House it had already gone through the other place. However, it was still 96 pages long. The Bill we are now considering, as amended on Report, is 111 pages long. Most of the increase—15.5 per cent.—arises from government amendments; and so today we are adding more and more government amendments. We are bound to ask why we are in the position of constantly inflating the statute book from stage to stage. Even after the Bill has been considered by one House, we go on making it longer and longer at the instance of the Government. The reason is that we try to draft in an over-elaborate way.

The matter was referred to by the Renton Committee on the preparation of legislation. In fact, it was referred to under the title "Over-Elaboration". In paragraph 6.5 of the report the committee quotes with approval a memorandum from two great Scottish judges, my noble and learned friend Lord Emslie and the late Lord Wheatley, who at the time were Lord President and Lord Justice Clerk. This is what they said: Most of the problems encountered by the Courts flow directly from the tendency of Parliament to ignore the virtue of enacting broad general rules in which the principal and over-riding intention can be readily seen, and to try to legislate in detail for particular aspects of the mischief which presumably the statute is intended to curb. It is an eternal truth that one can seldom foresee every combination of circumstances which may arise, and the practical consequence of attempting to do so and of drafting a statute so as to concentrate unduly on foreseen examples is more often than not to conceal the general intention and the ambit of that intention in a welter of detached provisions which leave one in doubt as to whether a particular combination of circumstances not expressly provided for was intended to be covered at all. It is probably the case that legislation in detail is resorted to because Parliamentarians harbour the suspicion that judges cannot be trusted to give proper effect to clear statements of principle. This, with respect to them (the Parliamentarians), is wholly unfounded. Indeed, so far as Scots judges are concerned, the strength of their common law system lies in its reliance upon broad statements of principle, and there is no reason to suppose that similar broad statements of principle in statute law would not, in their hands, be applied to the facts of any given case, to achieve the will of Parliament". That is precisely true also of English common law principles, as I am sure the noble and learned friend will bear out, and why this Bill in particular is so massive and has grown and is still growing. That brings me back to ask the noble and learned Lord why that should be so.

Noble Lords will remember that Sir Robert Andrew, who was asked to advise on the Government Legal Services, advised that parliamentary counsel should be responsible to the Law Officers. That was his only recommendation that was disregarded. The same recommendation was made by an authoritative committee of the Hansard Society on legislation and its preparation under the chairmanship of the late Lord Rippon. I ask again: when will an important body of lawyers in the Government be made responsible to someone other than the Prime Minister, to whom at the moment they are solely responsible; for example a legal officer such as the Lord Chancellor or the Attorney-General who will ensure that the drafting does not continue in this over-elaborate way but lays down general principles as recommended by the Renton Committee?

Lord Renton

My Lords, I rise briefly to support the noble and learned Lord, Lord Simon of Glaisdale. It is important that he reminds us of the views of the committee which are just as applicable today as they were as long ago as 1975 when the report was published.

The noble and learned Lord has pointed out that since the Bill came before the House a tremendous number of government amendments has been tabled. I am surprised by that, bearing in mind that the intention to legislate on this matter was expressed in the Queen's Speech as long ago as May 1997. In Scotland the Law Officers who advise the Scottish Office are responsible for parliamentary counsel. It is only in England and Wales and in general that parliamentary counsel in Whitehall are responsible to the Prime Minister but in Scotland it is different, and I believe wisely so.

This was not an easy Bill to draft and I am not surprised that there have been a number of government amendments, but I believe that the matter should have been considered in much greater depth at an earlier stage, even before the Bill reached another place. In another place legislation is not considered with the thoroughness that noble Lords display in this matter. I believe that to be due in part to the fact that the other place does not have the same degree of expertise and legal learning. Therefore, noble Lords have a very important task in considering the further amendments that the Government have introduced and, on their own initiative, improving the Bill in general as they have tried to do.

I am very reluctant to criticise the Lord Advocate because I believe that he has done great service to us in the course of this Bill. But I believe that there is a general matter for consideration here which applies especially to this Bill that devolves powers to Scotland. As the noble and learned Lord said, this is of very general application. I hope that in future sessions the Government will bear in mind that legislation is of vital importance, difficult and requires a great deal of consideration before Parliament is ever asked to consider it.

Lord Hardie

My Lords, I am grateful to the noble and learned Lord, Lord Simon, and to the noble Lord, Lord Renton, for their interventions. While the question of accountability of parliamentary draftsmen is a matter of general interest and importance, it goes beyond the scope of this amendment. Further, the procedures in the Scottish parliament, once it is established, for pre-legislative scrutiny by a committee will be a vast improvement on the present procedures in Westminster. I believe that to be a positive advantage of this Bill which I hope noble Lords will acknowledge.

I turn to the question of why this amendment is required. I apologise to the House if I have not already explained the matter. In the transitional period the Government are anxious to ensure that the registers can continue to operate broadly as they do at the present time.

5.30 p.m.

Lord Simon of Glaisdale

My Lords, if the noble and learned Lord will allow me to intervene, we were not complaining of the noble and learned Lord's explanation. We were complaining about the length of the amendment introduced at this stage.

Lord Hardie

My Lords, I understand that. Perhaps I may explain to the noble and learned Lord that other provisions in Clause 129 enabling an Order in Council to deal with transitional and transitory provisions will achieve the objective of enabling the registers to continue to operate broadly, as now. However, in considering these matters it was noted that provisions relating to the National Loans Fund could not be included in that general transitional provision or general Order in Council because there is apparently an agreement with the Public Accounts Committee that there must be specific provisions in primary legislation dealing with the loans fund. That is why the provision is brought forward. I apologise that that matter was not picked up before this stage. I hope that with that explanation noble Lords will accept the amendment.

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 29 to 31:

Page 31, line 35, at end insert— ("(4A) Subsection (4B) applies to any amount outstanding immediately before the commencement of this subsection in respect of the principal of the sum treated by virtue of section 2(3) of the Government Trading Funds Act 1973 as issued to the Registers of Scotland Executive Agency Trading Fund on the day on which the order establishing that fund came into force ("the issue date").

(4B) The Secretary of State may, with the agreement of the Treasury, by order provide—

  1. (a) for the amount to be treated as an advance made by him to the Scottish Ministers on the issue date, and
  2. (b) for the advance to be repaid to him at such times and by such methods, and for interest on the advance to be paid to him at such rates and at such times, as were determined by the Treasury under section 2B(3) of that Act in respect of the sum referred to in subsection (4A).").

Page 31, line 36, after ("(4)'') insert ("or (4B)").

Page 31, line 38, after ("(4)") insert ("or (4B)").

On Question, amendments agreed to.

Clause 79 [Supplemental powers to modify enactments]:

Lord Sewel moved Amendment No. 32:

Page 38, leave out lines 7 and 8.

The noble Lord said: My Lords, with Amendment No. 32 I speak also to Amendments Nos. 47, 48 and 57.

Government Amendment No. 48 amends the definition of "enactment" provided by Clause 126 to make it explicit that it includes future Acts of Parliament and subordinate legislation made under such Acts. This definition will apply throughout the Bill. It allows Amendments Nos. 32 and 57 to remove existing provisions which apply only for the purposes of Clause 79 and paragraph 2(5) of Schedule 4 and which are now redundant.

Government Amendment No. 47 is the so-called disappearing amendment. It replicates Amendment No. 204A which was omitted at Report stage because of a printing error on the Marshalled List. Fortunately for everyone the error was spotted by the noble Earl, Lord Balfour. I am very much in his debt for spotting it and alerting us to it. This makes amends for that. I beg to move.

The Earl of Balfour

My Lords, I thank the noble Lord for his kind remarks. It is always a pleasure to be of help sometimes.

Lord Mackay of Ardbrecknish

My Lords, I am sure we are all grateful to my noble friend Lord Balfour for the way in which he scrutinises legislation to make sure that the Government do not make mistakes. Perhaps I may revert back to the last debate. I am sure that the noble and learned Lord, Lord Simon of Glaisdale, will be happy to note that five lines have been taken out of the Bill and three lines added, with a net loss of two lines. I suppose progress is made slowly.

On Question, amendment agreed to.

The Earl of Mar and Kellie moved Amendment No. 33:

Before Clause 86, insert the following new clause—