Scotland Bill

HL Deb 08 October 1998 vol 593 cc578-659

3.44 p.m.

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

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Schedule 6 [Devolution issues]:

Lord Sewel moved Amendment No. 291GB:

Page 84, line 10, leave out from ("means") to ("whether") in line 11 and insert— ("() a question").

The noble Lord said: I beg to move Amendment No. 291GB. At the same time I shall speak to Amendments Nos. 291GC, 291GD, 291GE and 291GFA.

These amendments amend the definition of devolution issues in Schedule 6. They are important amendments but are essentially technical. First, I shall explain the general purpose of this schedule.

It is recognised that, from time to time, certain questions will arise for determination in judicial proceedings which are relevant to mapping out the boundaries of the devolution settlement. These issues are referred to as devolution issues.

Apart from enabling the Law Officers to institute judicial proceedings for the determination of devolution issues, including referring any such issue directly to the Judicial Committee of the Privy Council, the Bill does not make provision for the determination of these issues. However, where these issues arise in proceedings before any court or tribunal and between any parties, it is considered that there should be certain common procedures which apply, such as provisions giving the Law Officers an opportunity to intervene, provisions for the reference of the devolution issue to a higher court, including the Judicial Committee of the Privy Council and for appeal, ultimately, to that Judicial Committee. This is intended to minimise the risk of contradictory decisions and provide an ultimate common court of appeal upon devolution issues.

Paragraph 1 of Schedule 6 defines the devolution issues which are subject to these special procedures. As far as possible, they are confined to issues which raise vires questions which arise from the devolution settlement. Amendments Nos. 291GB to 291GFA amend the definition of those devolution issues, partly in consequence of the changes made at earlier stages in Committee to the description of legislative competence.

Lord Mackay of Drumadoon

I am grateful to the Minister for explaining the purposes of these amendments. I will read with care what he has said.

I wish to raise a few small points on the amendments which he may care to answer this afternoon or on which he may write to me before Report stage. In Amendment No. 291GC, in the third line, perhaps after the word "function" there may be value in including the words "within the competence" of the Scottish Ministers, the First Minister or the Lord Advocate. It may be said that that is implied, but it might be helpful to have that clarified.

I say that because, in addition to the functions set out in the Bill that are to be transferred to the members of the Scottish executive—who include all the Scottish ministers, the First Minister and the Lord Advocate—it will be competent, by way of a Clause 59 order, to add to these executive functions.

I should be grateful if the Minister could explicitly clarify that if any issue arose in relation to the competency of the exercise of the reserved functions of the Lord Advocate, that would be a devolution issue rather than a vires issue, which would be dealt with by the existing law under the judicial review procedure.

When one looks at the amended clause—which it will become once these amendments are agreed—it is important to be clear whether such questions of competence under Clause 59 functions or reserved functions fall within the definition now before us. As I am sure the noble Lord will appreciate, I am not asking these questions for academic reasons. Indeed, I am asking them for the very reasons he himself identified; namely, to seek to minimise the risks of an individual having to raise more than one action or indeed an individual raising one action with a number of issues in it, with some of them going down one judicial route to one Court of Appeal and others going down another judicial route to another Court of Appeal. They are complicated matters. I do not necessarily expect an answer this afternoon but I would welcome one before Report.

Lord Steel of Aikwood

Perhaps I may take this opportunity to say that, in my view, Schedule 6 was not properly examined in the other place. No doubt there will be a desire to examine it properly here. I do not propose to take up the time of the Committee, but I think it would be convenient if I gave notice that at Report stage, having consulted my- noble friends Lord Lester and Lord Goodhart, we intend to table an amendment to define properly the composition of the Judicial Committee of the Privy Council under the heading of a constitutional court. It is entirely unsatisfactory that the whole of this part of the Bill should be put on appeal to something that is amorphous and ill-defined. I believe that its composition ought to be made clear and there will be a later opportunity to do that.

Lord Wilberforce

I very much support what has just been said by the noble Lord, Lord Steel. I had very much the same point in mind. It is deplorable that when we came to Clause 32 there was no discussion whatever on the procedure of reference to the Privy Council. On this part, again no amendment has been put down. Unfortunately, my noble and learned friends from Scotland are not here today and it is hardly for me, with very tenuous though precious connections with Scotland, to raise this point. I shall look forward very much to what the noble Lord has to say at the Report stage, particularly as regards the composition of this body, which at the moment is totally amorphous and totally undefined and yet is to be put in the position of giving decisions which are binding on the supreme constitutional court of the United Kingdom; namely, the House of Lords. The point does not quite arise on the amendment of the noble and learned Lord, Lord Mackay, but, the noble Lord having raised it, I hope I may be forgiven for having added my voice to his.

Lord Hope of Craighead

Without taking up time, on behalf of the Scottish judges who are absent, perhaps I may endorse what the noble and learned Lord has just said. I share much of these concerns. A particular point of concern is that the Scottish judiciary should be properly represented on the judicial committee. The position is quite simple at the present time, but this measure is intended to last well into the next century. We cannot be sure that the composition of the judicial committee as it is today will be the same in 30 years' time.

Lord Sewel

I thank the noble and learned Lord, Lord Mackay, for raising these questions. I shall take the opportunity to consider them and will certainly be writing to the noble and learned Lord with full and, I hope, appropriate and adequate answers.

On the points raised by the noble Lord, Lord Steel, and the noble and learned Lords, Lord Wilberforce and Lord Hope, I look forward to seeing the resolution that they propose. I am happy to enter into correspondence with them if they wish to write. On that basis, I hope that we can agree the amendments.

On Question, amendment agreed to.

Lord Sewel moved Amendments Nos. 291GC to 291GE:

Page 84, line 14, leave out from beginning to ("whether") in line 21 and insert ("a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,

() a question whether the purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, within devolved competence, () a question").

Page 84, line 21, leave out from ("function") to ("by") in line 22.

Page 84, line 25, at beginning insert ("a question").

On Question, amendments agreed to.

[Amendment No. 291GF had been withdrawn from the Marshalled List.]

Lord Sewel moved Amendment No. 291GFA:

Page 84, leave out lines 27 to 29 and insert— ("() any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters.").

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 291GG:

Page 84, line 29, at end insert (", or () whether the standing orders of the Parliament comply with the provisions of this Act").

The noble and learned Lord said: Before I deal with this amendment, perhaps I may make one observation in response to the point raised by the noble Lord, Lord Steel, and others. Ministers have been very helpful in making available to your Lordships copies of draft orders dealing with various aspects of the devolution settlement. A Section 59 order is an example of that. If there is in existence a draft order or a draft Order in Council of the procedures which are intended to apply to supplement the provisions in Schedule 6 for the references of devolution issues from the courts up to the judicial committee, it would certainly be of assistance if that could be available when we return to discuss these matters at a later stage.

In this series of amendments I seek to identify a number of issues which I believe should be devolution issues. Some of them are matters which I have raised on more than one occasion during the debates in Committee so far. I refer in particular to what was said on the second day of Committee on 14th July (at cols. 248 and 249 òf the Official Report), on the third day of Committee on 16th July (at cols. 247 to 251 of the Official Report) and on the seventh day of Committee on 28th July (at col. 1391 of the Official Report). I do not offer any major criticism as I appreciate that the matters are very complicated, but on some of the issues that were raised promises were made of an answer or a letter. Such promises remain unfulfilled.

I should be grateful if the Minister who is to reply could make clear the Government's policy on a number of the issues that I have set out in this series of amendments as devolution issues. First, is it intended that the courts should be able to deal with a challenge to the competency of the standing orders of the Scottish parliament based on the argument that, as approved by the Scottish parliament, they fail to comply properly with the provisions of the Bill, and in particular with Clauses 21 and 22 and Schedule 3? Secondly, if such a challenge is to be competent, who would have the right to raise such a challenge—the title of interest, as we refer to it in the courts? Thirdly, is it intended that the vires of an Act of the Scottish parliament can be challenged on the basis that it has not been passed in accordance with standing orders that comply with the provisions of the Bill as it is finally enacted by Parliament? That matter is focused on in Amendment No. 291GH.

Is it intended that the vires of an Act of the Scottish parliament can be challenged on the basis that it has not been enacted in accordance with the standing orders of the parliament, as they have been adopted by the parliament, or that the particular standing order in question is one required for the parliament by the Scotland Act or one which it has chosen of its own volition to incorporate in its standing orders? That is focused on in Amendment No. 291GKB. Similar issues are focused on in Amendments Nos. 291 GJ and 291GK in relation to the vires of subordinate legislation made by members of the Scottish executive and, if appropriate, approved by a resolution of the Scottish parliament.

It seems to me that if the answer to any of these questions is yes—and I believe that in many instances, if not in all of them, that will be the answer—the next issue which arises is whether the Minister is satisfied that the terms of paragraph 1 of Schedule 6, as currently drafted in the light of the amendment which the noble and learned Lord, Lord Sewel, has just moved, covers each of the issues I have identified.

For the reasons I mentioned in speaking to the last group of amendments, I am extremely anxious to restrict the number of court actions that may have to be raised and also any confusion as to whether a particular legal issue is a devolution issue which falls to be dealt with according to the procedure set out in Schedule 6 or a vires issue which is a not a devolution issue, in which case different procedures might apply. Once again, I appreciate that these are technical matters in regard to which it may be inappropriate to expect a full answer this afternoon, but I hope that it will be possible to address them, by letter if necessary, in sufficient time to enable me to consider whether any further amendments will be required before we reach Report stage. I beg to move.

4 p.m.

Lord Renton

I wonder whether my noble and learned friend will make it clear—I may not have understood well enough what was said—that this group of amendments does not deal with vires at all. The group deals simply with the question of whether the various matters listed in these six amendments have been dealt with in accordance with the standing orders of the parliament which themselves have nothing to do with vires but only with procedure.

Lord Mackay of Drumadoon

I am grateful to my noble friend for his intervention. He is entirely correct as a matter of strict law. The problem is that in attacking the vires of the legislation various legal arguments will be deployed. It will fall to be assessed by the courts as to whether or not they give rise to devolution issues. The issue in itself may not be a question of vires but the issue that is being deployed as a legal argument may be part of a series of legal arguments attacking the vires of the legislation or attacking the vires of the subordinate legislation. That, as I understand it, is the approach set out in Schedule 6. One may take as an example paragraph 1(a), just amended, which states that "devolution issue" means a question, whether an Act of the Scottish Parliament … is within the legal competence of the Parliament". Strictly speaking, deciding whether a legal argument along those lines is a devolution issue or not is not necessarily a question of vires. The legal argument is deployed as part of an attack on the vires of the legislation. That is, I understand, the approach which the Bill takes. No doubt the noble and learned Lord the Lord Advocate will be able to confirm whether or not I am correct.

The Lord Advocate (Lord Hardie)

To deal with the point made by the noble and learned Lord at the outset, there are working drafts of the subordinate legislation and regulating procedure and these have been put in the Library and the Printed Paper Office. So they are available. However, I emphasise that they are still working drafts and work on them is continuing. The decision was taken to put them in the Library and the Printed Paper Office to enable noble Lords to consider them at this stage if they so wished.

The Government cannot accept these amendments, which seek to extend the range of matters which fall to be determined as devolution issues under the special provisions of Schedule 6. I take the point made by the noble Lord, Lord Renton, that these truly are not legal issues. I hope that the Committee will forgive me if I repeat what the purpose of Schedule 6 is. It is to define devolution issues which are to be subject to special judicial procedures. Devolution issues are essentially issues about the legislative competence of the parliament and the devolved executive competence of the Scottish executive.

The amendments would bring challenges to the procedures of the parliament within the scope of Schedule 6. It is our view that that cannot be right. Of course it is important that parliament does pass its legislation properly in accordance with properly drafted standing orders. However, that is not a matter for Schedule 6 or the Judicial Committee of the Privy Council but for the parliament itself. Indeed, I would venture to suggest that it would not be a productive use of the valuable time of the Judicial Committee of the Privy Council to deal with these issues. But nothing in Schedule 6 would prevent what I would describe as a normal challenge in terms of judicial review. For example, if one considered that a member of the Scottish executive had made subordinate legislation without following the proper procedures, that would be a matter for the ordinary judicial review, if I may put it that way, under the ordinary law. It is not a matter for the Schedule 6 procedure involving directly the Judicial Committee of the Privy Council.

If I may briefly refer to two of the examples raised by the noble and learned Lord, the first is this: could an Act of the Scottish parliament be challenged on the basis of the failure of the parliament to comply with the standing orders? The answer is no, and the reason is contained in Clause 27(5) which excludes a challenge. That is the purpose of the clause. The second question, which gives a different answer, is: could the courts deal with the competency of a standing order? The answer to that is yes, in terms of the judicial review procedure. As to title and interest, it is left to the courts to decide as to who properly has title and interest in any given case.

I hope those explanations will enable the noble and learned Lord to withdraw the amendment. If there are any particular issues that he wishes me to deal with further in writing, I shall be happy to do so.

Lord Renton

I thank the noble and learned Lord the Lord Advocate for his lucid explanation. However, may I make a suggestion? I think it would enable the sixth schedule and this part of it to be better understood if Clause 91, which is not at all explanatory, were to be amplified so as to set out the principle, in broad terms and fairly briefly, and to underline the way in which the sixth schedule is to be applied. Can that suggestion be considered between now and Report stage?

Lord Hope of Craighead

In my experience some of the challenges which are liable to be made will be made by people acting without legal advice. In the courts we often encounter the litigant in person, the party litigant, who will have to try to understand the schedule and appreciate the point which the noble and learned Lord has made.

It occurs to me that the litigant's target is going to be either the Act or the subordinate legislation. It may be quite difficult for him to appreciate that he may have to go to a different court in order to obtain an answer depending upon the way in which he develops his argument. As the noble and learned Lord, Lord Mackay of Drumadoon, pointed out, these arguments tend all to be gathered together as a means of securing the desired remedy, which is to get rid of the Act or the subordinate legislation.

The point which is troublesome but inevitable, I imagine, is that the route will be different according to the nature of the attack. It is really in order to minimise the risk of confusion that I think there is great force in the point which has just been made.

Lord Steel of Aikwood

Before the noble and learned Lord replies, perhaps I may intervene. I may have misunderstood what he was saying. However, at one point I thought he was not keen to extend the list of those matters in which the courts might intervene, but it seems to me that that is precisely what his amendments would achieve if they were carried. In particular, if one looks at Amendment No. 291 GKA, to suggest that there could be some court involvement in establishing whether subordinate legislation which a member of the Scottish executive has purported to make has been made in accordance with the standing orders of the parliament seems to me to be going far too far.

I should have thought that if any member of the Scottish parliament attempted to make subordinate legislation outwith the standing orders of the parliament, the parliament itself would have something fairly severe to say on the matter. That is where the matter should rest.

It seems to me to be a continuation of what I said on Tuesday about the "twins Mackay" appearing to be very keen to find out always what the Scottish parliament might be doing and telling it to stop it. We should have greater trust in the procedures of the parliament.

Lord Mackay of Drumadoon

Yet again, I take the gentle chastisement of the noble Lord, Lord Steel. However, there are cases in the law reports where subordinate legislation made by Ministers of the United Kingdom Government has been successfully challenged because the correct procedure has not been followed, despite the wealth of experience of those Ministers, their officials and the very experienced and helpful Clerks of the two Houses of this Parliament.

Therefore, these amendments seek to establish answers, and I wish to be quite clear that I have the correct answers. If I have not, I should be extremely grateful to the noble and learned Lord the Lord Advocate if he will write to me about the matter.

As I understand the approach which is advanced, it will be for the Parliament to decide what are its standing orders. No challenge in the courts would be competent. Certainly if such a challenge were made, it would not be a devolution issue as to whether standing orders comply with the Act of Parliament, as it will become.

Secondly, I understand that the effect of Clause 27(5) is that the courts would not entertain a challenge to the vires of an Act of the Scottish parliament based upon a failure to follow standing orders because that would be acting in breach of the cryptic way in which it is put, which is of course the correct way; namely, that every Act of the Scottish parliament shall be judicially noticed.

Thirdly, I understand that it would be competent for somebody to challenge subordinate legislation but if he chose to do so and raised the legal issues which are identified in the three amendments—Amendments Nos. 291GJ, 291GK and 291GKA—those would not fall to be considered to be devolution issues. Therefore, those matters would be raised in judicial proceedings which could ultimately end in a hearing before the Appellate Committee of your Lordships' House.

I shall obviously reflect extremely carefully as to whether that is a sensible approach. But my initial reaction is that it is not, because it is perfectly possible to imagine a situation in which somebody adversely affected by subordinate legislation—for example, the Scottish equivalent to the beef on the bone regulations—seeks to challenge the vires of the regulations on a variety of grounds. Some of them may well be devolution issues and some may not be. That is a matter of some practical concern which reinforces the value of examining the issues mentioned by the noble and learned Lords, Lord Wilberforce and Hope, earlier this afternoon.

I hope that I have followed the matter correctly. I am grateful to the noble and learned Lord for explaining the matter to the Committee. My very helpful friend Lord Mackay of Ardbrecknish has been to the PPO and has now furnished me—

4.15 p.m.

Lord Hardie

Before the noble and learned Lord withdraws his amendment, perhaps I should just deal with the points raised by the noble Lord, Lord Renton, and the noble and learned Lord, Lord Hope. I shall consider between now and Report any way in which to make the position clearer and I take on board the concerns of the noble Lord, Lord Renton.

As regards the point raised by the noble and learned Lord, Lord Hope, I understand that the ultimate destination of cases may alter according to the nature of the issue. But initially, a party litigant would raise his proceedings in a Scottish court, either in Scottish proceedings or separately in a Scottish court. The court would then decide whether it was a devolution issue. The ultimate destination of that case, if it were a devolution issue, would be the Judicial Committee of the Privy Council whereas, if it were not, it would be a matter for the Appellate Committee of your Lordships' House.

Lord Mackay of Drumadoon

As I was saying, I am now furnished with the copies of the drafts of a variety of rules and Acts of sederunt which may helpfully inform not only myself but others at later stages of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No. 291GH to 291GKB not moved.]

Lord Mackay of Drumadoon moved Amendment No. 291GL:

Page 84, line 42, at end insert— ("() The Lord Advocate may defend on behalf of the Scottish Executive any such proceedings instituted against a member of the Scottish Executive.").

The noble and learned Lord said: This amendment and the other amendments grouped with it are merely drafting amendments which seek to expand on the provisions of paragraph 4(2) of Schedule 6. That provides that the Lord Advocate may defend any proceedings for the determination of a devolution issue instituted by the Advocate General. But, curiously, there is no corresponding provision dealing with the Advocate General's position at that stage. They may be purely technical drafting points but it seems to me to be curious that a provision is made for defending some proceedings but not for others. That is the sole purpose of these small drafting amendments. I beg to move.

Lord Renton

I find some difficulty about this because on page 84 the Bill states that: The Lord Advocate may defend any such proceedings instituted by the Advocate General". My noble friend's Amendment No. 291GL makes it clear that the Advocate General may be acting on behalf of a Minister of the Crown. The Lord Advocate is a Minister of the Crown, is he not? He is at the moment. Is he to have a dual personality?

Lord Mackay of Drumadoon

I am happy to say that any future Lord Advocate must confine himself to having one personality. At some date between now and the Scottish parliament becoming operational, the Lord Advocate will cease to be a Minister of the Crown and will become a member of the Scottish executive even though he is exactly the same person one day as he is the next. Although he will be the public prosecutor in Scotland and will have full membership of the Scottish executive, he will cease to be a Minister of the Crown and, as such, will cease to be answerable to this Parliament in respect of any of his functions, even though he remains a member of the parliament.

Lord Renton

I am grateful to my noble and learned friend for that explanation. I must apologise to the Committee for not refreshing my memory, which has been tarnished since we first considered this matter in the summer.

Lord Hardie

These amendments are thought to be unnecessary. Paragraphs 4, 15 and 25 of Schedule 6 are primarily intended to ensure that the relevant Law Officers have title and interest to institute proceedings for the determination of a devolution issue. Without such a provision, there could be considerable doubt whether the Lord Advocate would have sufficient title and interest to bring proceedings.

There is no similar doubt in the case of those against whom the proceedings may be brought. The persons against whom proceedings are brought will depend on the facts and circumstances of each case. Where, for example, the Advocate General raises proceedings against Scottish ministers, it will be possible for such proceedings to be raised against them in their own name or for the Lord Advocate to represent them in accordance with the Crown Suits (Scotland) Act 1856 as amended by Paragraph 2 in Schedule 7. The position is exactly the same as with the Secretary of State for Scotland at present.

How Ministers of the Crown or government departments in the United Kingdom are sued is a matter which is determined primarily by Section 17 of the Crown Proceedings Act 1947.

As can be seen, it is unnecessary to have any special provision as to how a member of the Scottish executive or a Minister of the Crown may be sued. That is why it is stated in Paragraphs 4, 15 and 25. Each of those paragraphs is without prejudice to any power to institute or defend proceedings exercisable by any other person. The provisions do not therefore cut across any other arrangements for initiating or defending actions on behalf of the Scottish executive or UK Government.

Lord Mackay of Drumadoon

I am sure that the explanation of the noble and learned Lord the Lord Advocate will be more than sufficient clarification if any doubt arises in the future. On that basis I withdraw Amendment No. 291GL and I shall not be moving the subsequent amendments in the group.

Amendment, by leave, withdrawn.

[Amendment No. 219GM not moved.]

Lord Hardie moved Amendment No. 291GMA:

Page 85, line 2, leave out from beginning to ("intimation").

The noble and learned Lord said: In moving Amendment No. 291GMA, I shall speak also to Amendment No. 291GMB. These amendments are technical amendments to provide flexibility. They simply require intimation of a devolution issue to be given to the Advocate General and to the Lord Advocate without the restriction that this should be done in pursuance of a court order; for example, the relevant intimation could be given by a party under the rules of court. I beg to move.

Lord Mackay of Drumadoon

Perhaps I may ask the noble and learned Lord to clarify one matter. Would this amendment, which I did not initially understand, although I now see the force of it, still have in mind the policy that the intimation should be given by a party and not by the court or tribunal itself?

Lord Hardie

Yes, that would be the position. It may be under an order of the court.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 291GMB:

Page 85, line 3, leave out ("it to") and insert ("a court or tribunal shall").

On Question, amendment agreed to.

[Amendments Nos. 291GN to 291GR not moved.]

Lord Mackay of Drumadoon moved Amendment No. 291H:

Page 88, line 3, leave out ("require") and insert ("request").

The noble and learned Lord said: This short amendment raises the issue of whether any party to legal proceedings should be entitled as a matter of right to require a court or tribunal to do a particular thing and to follow a particular course of action. This arises in paragraph 33 of the schedule which provides that one of the four law officers mentioned, may require any court or tribunal to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he is a party".

It seems to me that two issues arise: first, whether any party, even as important a party as a Lord Advocate, should have the right to require a court to act in such a manner; and, secondly, if the law officer is a party to the proceedings with other parties, whether it complies with convention rights to give him a right to require the court to act in a particular manner which the other party or parties to the litigation would not have? There would seem to be an element of discrimination which would be eliminated if the Bill was amended in the way I propose. That presumably would give every party the right to request the court or tribunal to refer to the Judicial Committee. In practical terms that may be quite important. matter. If devolution issues are raised in comparatively small proceedings—and by that I mean proceedings of small monetary value in the lower courts—the last thing on earth the lay parties may want is to become involved in proceedings in front of the Judicial Committee where the costs involved might be out of proportion to the specific sum of money at stake. I beg to move.

Lord Hardie

The noble and learned Lord has properly pointed out the effect of substituting a request for a requirement in the sense that the appropriate law officer—not just the Lord Advocate but the Advocate General or the Attorney General for Northern Ireland—could only request a court to refer a matter where a devolution issue had arisen.

We feel that there should be the power to require an inferior court to refer such an issue to the Judicial Committee. No doubt a court or tribunal would pay careful heed to a request by any law officer, whether it was the Lord Advocate or one of the others. But the provision in the Bill puts beyond doubt that a devolution issue must be referred to the Judicial Committee of the Privy Council if a law officer requires it. This is to provide a fast-track procedure to ensure that a devolution issue will be referred to the Judicial Committee where a law officer considers that it is important to do so. The present position is clearly desirable to ensure, among other things, consistency of decisions. It is possible that in different courts throughout Scotland, and perhaps even in England, a similar issue will be considered by different inferior courts. If that were known to the law officer, it would be inappropriate to end up with the possibility of having umpteen different decisions.

In that situation it is clearly important to obtain an authoritative ruling. The law officers would wish to refer the matter to the Judicial Committee. If the option was left to the inferior court of saying no, there would be undue delay in resolving what might be an important issue. With that explanation I hope that the noble and learned Lord will withdraw the amendment.

Lord Mackay of Drumadoon

I shall reflect on what the noble and learned Lord said. In particular it would be helpful to consider his reply in the light of the documents which have now come to hand. The expense involved is a matter to which we shall return shortly. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 291J:

Page 88, line 5, at end insert— ("33A. Where a court or tribunal refers a devolution issue for determination in terms of paragraph 33 above, the person making the request for such a reference shall pay all legal expenses of any parties that subsequently take part in any proceedings before the Judicial Committee for the determination of the judicial issue referred.").

The noble and learned Lord said: I do not intend to move or speak to Amendment No. 291K. I shall confine my remarks to this one amendment. It concerns the additional legal expenses which will be incurred by other parties if one of the Law Officers mentioned in paragraph 33, which we have just been discussing, exercises his right to require a court to refer a devolution issue directly to the Judicial Committee.

As I indicated, the other parties to the proceedings may be perfectly content to have the dispute resolved by the lower courts even if a devolution issue is involved. They may agree that there are two sides to the argument and they want an independent adjudication upon it. Whether that comes from the sheriff court or the Lord Ordinary in the Court of Session, they would be quite content with that and would not wish to become involved in a paragraph 33 reference. In so far as such a reference would take place during the course of the proceedings which might then go back to the sheriff court or the Court of Session, they would really have little alternative but to remain involved and the question of additional expense would undoubtedly occur.

Paragraph 36 of Schedule 6 deals with the question of expenses. I am not entirely clear that it would have application in a situation where, against their will, the lay parties to proceedings were taken to the Judicial Committee under paragraph 33. In such circumstances if, for the reasons fully explained by the noble and learned Lord the Lord Advocate, in the public interest or a specific law officer felt that it was important that the devolution issue be resolved at Judicial Committee level because of its ramifications, whether throughout Scotland or the United Kingdom, in order to avoid any dangers arising from conflicting decisions by lower courts—possibly in different legal jurisdictions altogether—it is equitable that the other party should be entitled to cover any additional expense, taxed of course by the taxing master or the auditor of the court. I beg to move.

4.30 p.m.

Lord Hardie

I fully understand and sympathise with the thinking behind Amendment No. 291J. Despite that, I am not able to accept it, for this reason. Traditionally expenses are left to the discretion of the court, including the Judicial Committee of the Privy Council. The court will take into account the question of whether or not it is a test case. In your Lordships' House it is not unusual for such situations to arise when, even in cases where the Government are successful, the Government bear the expenses of the case or certainly the unsuccessful party does not have to pay.

We can trust the courts on this matter and I invite the noble and learned Lord to withdraw the amendment, leaving the issue of expenses to the discretion of the court. Clearly, if the court was of the view that a party had become embroiled in an issue of this sort which was not of their own making, that would be another factor as to who paid the costs. If it was a spurious matter as to whether the party was to blame for the devolution issue being raised in the first place, the Judicial Committee may wish to provide a sanction on expenses.

Baroness Carnegy of Lour

While the noble and learned Lord the Lord Advocate was speaking, I was thinking of the parties who might get trapped in this situation and was trying to follow the argument. Can he say whether the parties would know in advance whether or not their expenses would be paid? If not, it would not fulfil its purpose. People may be put off going to court if there is any doubt. Perhaps the noble and learned Lord should look at the previous amendment and consider whether or not there is virtue in looking at the system to make sure that that does not happen.

Lord Hardie

It is not the intention of the Government or the Bill to put anyone off raising issues which are clearly devolution issues. The short answer to the question raised by the noble Baroness, Lady Carnegy, is that one can never be certain in advance that the expenses will be met, unless an undertaking is given.

It may be, if the Lord Advocate or Advocate General of the day feels that it is an issue which should be aired and he accepts that it is not appropriate for the party to bear the cost, at that point the law officer may well say, "I am anxious to have this matter tested and we will of course meet the whole expenses of the case". However, there will be other cases where a devolution issue arises because of an action which has been raised by a party and which, even in the course of the litigation, may be raised by the party himself or herself as a side issue which then comes into focus. In that situation it may well be that the party has taken on the cost of the litigation and the risk associated with all litigation. This is therefore a matter which ought to be left, as it has been for centuries, to the discretion of the tribunal court hearing the case.

Lord Mackay of Drumadoon

While sitting listening to the noble and learned Lord's explanation of the Government's position which, I am sure he will appreciate, comes as no surprise—he would not wish to burden his successors in office and the other law officers with a huge volume of expense—it struck me that there may be scope for amending paragraph 36. That might give encouragement to the Judicial Committee to look favourably at a party who ended up being brought to that committee under a paragraph 33 reference. It may be helpful therefore if I give notice that I anticipate tabling an amendment to that effect at Report stage. However, in the light of what the noble and learned Lord said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 291K not moved.]

Schedule 6, as amended, agreed to.

Clause 92 [Legislative powers to remedy ultra vires acts]:

Baroness Ramsay of Cartvale moved Amendment No. 291KA:

Page 43, leave out lines 35 and 36 and insert— ("(a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament which is not, or may not he. within the legislative competence of the Parliament, or").

The noble Baroness said: Before turning to the detail of government Amendment No. 291 KA, perhaps it would be helpful if I explained why the Government consider the provisions in clause 92 are necessary.

Clause 92 enables provision to be made by subordinate legislation consequential upon any ultra vires provision of an Act of the Scottish parliament or an ultra vires exercise of a function by a member of the Scottish executive. The power to make subordinate legislation is exercisable by Her Majesty by an Order in Council or by a Minister in the UK Government.

Clause 92 provides a means by which problems resulting from ultra vires provision of Acts of the Scottish parliament or actions of a member of the Scottish executive may be quickly remedied. It allows subordinate legislation to make such provision as is considered necessary or expedient to correct the problem. The subordinate legislation which does this may be retrospective in effect and it may amend any enactment including an Act of the Scottish parliament or secondary legislation under the parliament's authority. However, a determination by the courts that a provision or action is ultra vires is not a prerequisite for the use of this power. It could be used to remedy a defect or a suspected defect before judicial proceedings were commenced thereby avoiding the necessity for them.

This clause envisages that there may be a need to sort out the consequences of ultra vires legislation quickly. Usually the Act or subordinate legislation would be referred back to the Scottish parliament to reconsider. However, there will be circumstances where it would be outwith the legislative competence of the Scottish parliament to legislate to pass any necessary consequential provision. That would have to be done by the UK Parliament and in some cases it may be very desirable that it can be done quickly. Clause 92 makes express provision for that.

I turn now to the detail of government Amendment No. 291 KA. This makes it clear that the UK Government can make subordinate legislation under Clause 92 in consequence of an Act or any provision of an Act not being within the legislative competence of the parliament. It also, however, removes from the scope of Clause 92 power to remedy ultra vires provision made by persons other than the members of the Scottish executive under an Act of the Scottish parliament. The power is intended to deal with the consequences of the parliament or the executive acting outwith their powers. Remedying the consequences of ultra vires actions by other persons acting under an ASP will be a matter for the parliament itself. I beg to move.

Lord Fraser of Carmyllie

I am grateful to the noble Baroness for her explanation. She may recall from an earlier stage that one of the issues in this Bill that interests me is how, when the Scottish parliament passes an Act, it achieves any legislative effect in England, Wales or Northern Ireland.

At the present time, if a Scottish Bill is passed within this Parliament, it is almost invariably the case that at least one or two clauses within that Bill will allow certain provisions of it, although primarily for application in Scotland, to extend into England. It has always seemed to me to be a problem that we ought to confront and try to resolve. It would be absurd if in some key social or criminal activities the Scottish parliament, with a proper, clear purpose, sought to resolve that issue in Scotland but found that it had no prospect of applying such provisions somewhere as close as Carlisle or Newcastle and found that much of the efficacy of what it sought to achieve was thereby limited.

As I understand this provision, it is intended for the circumstance in which the Scottish parliament, unintentionally or erroneously, goes further than it should in terms of its legislative competence and acts, accordingly, ultra vires. I wondered whether the provision might conveniently be used as a device, so that, when the Scottish parliament wanted part of an Act to be extended to England, a simpler route than taking primary legislation through the Westminster Parliament, could be achieved by secondary legislation. It strikes me as an intriguing possibility. Although I do not expect the noble Baroness to provide a complete answer now, I hope that before we come to the next stage the Government may reflect on that.

Baroness Ramsay of Cartvale

I can give a partial answer. An Act of the Scottish parliament can make provisions only in Scots law. Clause 95 could be used by the UK Government to apply a provision to English law. As regards the rest of the question, I shall accept the noble and learned Lord's request to write to him.

Lord Mackay of Drumadoon

I am grateful to the noble Baroness for explaining the approach that the colonial governor might seek to take if, for whatever reason, he or she is of the view that an Act of the Scottish parliament is ultra vires or might be ultra vires or if a purported exercise by a member of the Scottish executive is (or may not be) a proper exercise of a function.

I have great difficulty with that order-making power being one which does not require the affirmative resolution procedure. A subsequent amendment was designed to address that issue but has been pre-empted by the rewriting of the provisions dealing with subordinate legislation. We shall have to address that again on Report. I fully understand the reasoning, but I remain somewhat apprehensive about how that will work in practice.

Unlike my noble and learned friend Lord Fraser of Carmyllie, who may be of the opinion that the provision would be used only when the Scottish parliament or Scottish executive unintentionally traversed the borders of competence, I am concerned that that will be done intentionally at some stage in the future to test the legislation and the will of the United Kingdom Government, for whatever reason. That is where I am at one with the noble Lord, Lord Steel of Aikwood, who I am sorry to see is not in his place. These matters are political issues which should be resolved by politicians and not by orders which may have to be construed and ultimately enforced by courts of law. At this stage, I do not oppose Amendment No. 291KA.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 291L:

Page 43, line 39, at end insert— ("(2) No person shall he guilty of an offence solely as a result of the retrospective effect of subordinate legislation made under subsection (1) above.").

The noble and learned Lord said: This amendment seeks to achieve the simple purpose that if, for whatever reason, the order-making power provided for in Clause 92 is used, under no circumstance can it be used to create a criminal offence with retrospective effect. It would be inequitable to leave open that possibility and this amendment is designed to stop that. I beg to move.

4.45 p.m.

Lord Hardie

Again, I agree entirely with the sentiment behind the amendment. In our submission, it is not necessary. Any order under this Bill will have to comply with the Human Rights Bill, which by then will be enacted. Article 7(1) of the convention, which will be incorporated into domestic law by then, prohibits that precise situation. No one can be held guilty of a criminal offence on account of an act or omission which did not constitute a criminal offence under national or international law when it was committed. That is the simple answer. With that explanation, I invite the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon

I am grateful for that explanation, which I assume would, on the basis of an undertaking by the noble and learned Lord, cover the situation which may arise in the period between the coming into force of this Bill and the Human Rights Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 291M not moved.]

Clause 92, as amended, agreed to.

Lord Mackay of Drumadoon moved Amendment No. 291MA:

After Clause 92, insert the following new clause—

COURTS TO TAKE ACCOUNT OF DECISIONS THAT ACTS ULTRA VIRES: CRIMINAL CASES

(" .(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: This amendment and Amendment No. 291MB raise important issues about what will happen in criminal proceedings throughout the United Kingdom, but primarily in Scotland, if it is argued before a court, and the court reaches the view, that an Act of the Scottish parliament or any provision of such an Act was outwith the legislative competence of the parliament, or that a member of the Scottish executive did not have the power to make, confirm or approve a provision of subordinate legislation that he had purported to make, confirm or approve.

As drafted, Clause 93 seeks to specify certain powers that a court or tribunal would have if it reached such a view. At this juncture, we are dealing with criminal courts. In criminal cases, that might arise in one of two situations. I refer first to cases where the alleged illegality of the primary legislation and of the subordinate legislation—the alleged lack of competence—justified the mounting of a challenge to the competency of the charge which the particular accused was required to face in criminal proceedings. He might be charged with contravening a section of an Act of the Scottish parliament. His initial line of defence, which in all probability would be raised at the preliminary stage of any proceedings before any trial commenced, would be that the Scottish parliament did not have the competence to make such legislation and to create such an offence, and for that reason he could not be prosecuted for it and convicted.

The second general area where such an issue might arise relates to the admissibility of evidence. That might arise in one of two ways. An accused may be able to argue that the statutory procedures under which the evidence had been recovered, whether by way of some search or seizure, was outwith the competence of the parliament or the executive because the procedure constituted a breach of convention rights and was therefore outwith the competence. Alternatively, he may be able to argue that the new rules of evidence that the Scottish parliament required the courts to follow again amounted to breaches of convention rights and therefore the charge should not have been laid or the evidence admitted. Technically speaking, that could arise in proceedings in other parts of the UK but, in all probability, this particular matter is one which we can confine to Scotland.

As presently drafted, Clause 93 would provide that if a criminal court reached such a view that the charge was incompetent for the reason that the legislation should not have been enacted or that the evidence had been recovered or was about to be admitted by rules of evidence, which were equally in breach of convention rights and, for that reason, ultra vires, it would, nevertheless, have options open to it within its discretion. The first of those options is contained in subsection (2)(a); namely, that it could remove or limit, any retrospective effect of the decision on competency. In other words, the court will say, "I am perfectly satisfied that, on the date you committed the offence, the parliament did not have power to create such an offence or in some way limit any retrospective effect of the decision". It is inconceivable that a court would ever make such an order but, ex facie of the legislation, that appears to be possible. Similarly, under subsection (2)(b), the court could in some way suspend the effect of its decision on the legal question involved for a period, to allow the defect to be corrected", presumably by the Scottish parliament or the Scottish executive remaking the offending subordinate legislation.

It seems to me to be unsatisfactory to admit the possibility of that occurring. I suggest that the approach should be as follows. If the court in criminal proceedings is satisfied that some provision of the legislation coming out of the Scottish parliament or made by the Scottish executive was indeed ultra vires at the date it was made, it should apply that decision there and then. To do otherwise would run the risk of an almost inevitable breach of convention rights as set out in the European Convention on Human Rights.

I very much hope the Government will be prepared to look again at how this particular clause will apply in criminal proceedings. Of course, it would apply not only to subordinate legislation made by the Scottish executive in terms of the executive powers devolved to it in the Bill; it could also apply theoretically to the executive competence to be devolved by way of a Section 59 order. Again, it would be helpful if that matter could also be considered. We wish to minimise as far as possible any unnecessary concerns or litigation arising from the provisions of the Bill or the role that the courts will have to play after devolution. As a first step, it seems to me that looking at criminal proceedings separately would be a valuable way to proceed. I beg to move.

Lord Hardie

Again, I can understand the reasoning behind the amendment and, indeed, have sympathy for the noble and learned Lord's views. However, as the amendment stands, it would require the court to give effect to its decision on the competence of an Act of the Scottish parliament or the making of subordinate legislation and bind the inferior court to that decision in the particular case in which the decision was made. As the noble and learned Lord pointed out, the court could not suspend the effect of its decision, or take any other steps which are available, in terms of the clause as drafted.

Therefore, the amendment would limit the court's discretion in exercising the power conferred by the Bill in relation to a particular criminal case and would leave the court with a restricted power as to what it could do. I understand that the noble and learned Lord's point is that different considerations ought to apply in criminal cases. However, the Government believe that it is important that courts should have the power to suspend the effect of the decision to give a chance for the defect to be remedied.

I entirely agree with the point raised by the noble and learned Lord towards the end of his argument; namely, that it is almost inevitable in the situation he was considering for there to be a breach of human rights. If that is the case, the court would not take any steps to suspend the legislation or to delay it. Indeed, in the almost inevitable case, it would be a clear breach of human rights legislation. That would be a good reason for the Court of Appeal to quash any ultimate conviction.

Of course, there may be an exceptional case but it is difficult to imagine what it might be. Nevertheless, there may well 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". 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, and so on.

Lord Mackay of Drumadoon

I am looking hopefully in the direction of the noble and learned Lord, Lord Hope, to see whether he has anything to say. Indeed, I am happy to see him rise to speak.

Lord Hope of Craighead

With the greatest respect, I gained the impression that the noble and learned Lord the Lord Advocate was perhaps addressing two amendments and not one, although I may have misunderstood him. There are two issues involved. The first is a criminal point which has been addressed. For my part, I can see that there would be some value in the court having a discretion. One cannot foresee the niceties that may arise in some of these issues. I would rather rely on the discretion of the court, informed of course by human rights case law, rather than tie the court down as proposed in the amendment.

As regards the other matter, which has not perhaps been addressed—namely, the matter of deferring the effect of an order for a period of time—that is something which I thought the court in civil proceedings would be able to do within its existing jurisdiction. I know that the German constitutional court adopts that approach when such issues come before it. I have no doubt that the courts in this country would wish to follow that example. However, that is anticipating an amendment which I believe the noble and learned Lord will move shortly.

Lord Mackay of Drumadoon

I am grateful to the noble and learned Lord, Lord Hope, for his contribution, and indeed to the noble and learned Lord the Lord Advocate for his response. I have to say that I remain slightly concerned because, after consideration of what I said, as well as hearing in mind the remarks of the noble and learned Lord, Lord Hope, and the response of the Minister, it seems to me that none of us can find an example in which it would be appropriate in the context of a criminal case for a judge to make either an order suspending "retrospective effect" or in some way to stay or interrupt the proceedings to allow new legislation to be made or enacted.

While the noble and learned Lord, Lord Hope, is quite correct to say that one can never anticipate what will happen in the future, that argument can, to some extent, be deployed both ways. Nevertheless, I shall certainly reflect on what the Minister said. Having reconsidered the matter, I suspect that I will raise it again on Report. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Lord Mackay of Drumadoon moved Amendment No. 291P:

Page 44, line 1, leave out subsection (2) and insert— ("(2) The court or tribunal may, if it has decided that an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, suspend acting upon or giving effect to any such decision for such period not exceeding six months, and on such conditions, as to allow the Scottish Executive and the Secretary of State to take such action as they deem appropriate.").

The noble and learned Lord said: In moving Amendment No. 291P I wish to speak also to Amendments Nos. 291Q, 291R and 291S. These amendments address the application of the provisions of Clause 93 in civil proceedings. They seek to limit the scope of the discretionary powers the courts are to be given when they reach the view that either the Scottish parliament or the Scottish executive has legislated beyond their competence.

As I have already indicated, for the first time the courts are to be given power to quash legislation which in the eyes of the general public is primary legislation in the sense that the layman in Scotland who is bound by the law, and bound by the law as it applies in civil proceedings, will treat legislation which has come out of this Parliament in exactly the same way as legislation which has been passed by the politicians elected to the Scottish parliament. It is important to bear in mind that this power which has been given to the courts will cover subordinate legislation made under powers which may arise under a Section 59 order.

It is quite clear to those of us who have from time to time had to consider this matter, whether as lawyers in practice or judges, that this is an extremely complex area of the law which at the present time has to he applied only when considering the vires of subordinate legislation made by the United Kingdom Parliament. As recently as April of this year, in an appeal which came to the Appellate Committee of this Chamber in the case of Boddington v. British Transport Police, the noble and learned Lords who constituted the committee which heard that appeal and delivered their opinions on 2nd April, had slightly differing views as to the state of the law. I shall not trouble the Committee with a detailed exposition of those views, but the noble and learned Lord the Lord Chancellor said, Subordinate legislation … is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred". His clear view on the issue was—as sometimes happens in cases before the Appellate Committee of your Lordships' House—disagreed with by other noble and learned Lords, in particular the noble and learned Lords, Lord Browne-Wilkinson, and Lord Slynn of Hadley. I think it is fair to say that the law is in a state of some complexity and—if I may use this word as quietly as possible—there is dispute between Members of this Chamber who sit as Lords of Appeal in Ordinary and the noble and learned Lord the Lord Chancellor as to what is the state of the law.

As the noble and learned Lord, Lord Hope, has just observed, irrespective of what is set out in this Bill, the courts will have their existing powers to deal with issues that come before them. The existing law, whatever it is, will apply to Acts of the Scottish parliament unless it is explicitly amended by this Bill, and will apply equally to subordinate legislation unless the existing law is amended by the Bill. As I stressed earlier, it is important to bear in mind that in reviewing such subordinate legislation issues of vires will not be confined to the devolution issues as they are set out in Schedule 6.

I have a number of practical difficulties with the approach favoured by Clause 93, as regards deciding whether or not to make an order removing or limiting any retrospective effect, or an order suspending the effect of the decision to allow corrective action to be taken. How is the court to have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected? Is it intended that the courts should allow such persons to become parties to the proceedings, because if they did they and indeed the Lord Advocate or any other Minister or Law Officer who became convened to the proceedings at that stage would not, as I understand it, be entitled to go back to the beginning and re-argue the decision which had already been reached that the particular provision was ultra vires? That would be taken as read and one would move on to the next stage, the discretionary stage of whether or not to make such an order. There is the practical issue of what role the Law Officers will play. Will they represent the public interest or the interests of the executive body concerned, whether it be the Scottish executive or the British Government?

Most importantly of all, is it not an inevitable consequence of giving such discretionary powers to the courts that they will be drawn into possibly highly political decisions which will inevitably bring them much more into the public eye and into the mind of the media than many of them would wish, and indeed many politicians or members of the public would wish? The issue of whether in this situation a decision should have retrospective effect could be a highly political one in which the economic interests of one body may have to be balanced against the economic or possibly environmental interests of another. I firmly believe that these are decisions for politicians and not for the courts.

That is the practical concern I have. One approach, of course, is just to get rid of the clause altogether. In 1978 a similar amendment was moved in a Committee stage on 10th May 1978. I now refer to a name which will be familiar to the Committee from our discussions earlier this week. No less a person than the noble and learned Lord, Lord McCluskey, replied for the government on that occasion. He made it quite clear that the government's view then was that it would be highly dangerous to put anything on the face of the Bill to deal with the practical situation with which this clause is concerned. The noble and learned Lord said, So far as civil cases are concerned, we believe it would be highly dangerous to depart from the well-known and well settled rules which I have outlined above. It would really be quite impossible to work out all the permutations that might result if one attempted to deal with all the various inequities which would be thrown up by an attempt to restore to his previous position everyone who had acted on the faith of a valid Scottish Assembly Act. Noble Lords may well consider that the present law achieves a broadly equitable result and that it would be dangerous to meddle with it".—[Official Report, 10/5/78; col. 1124.] That is one approach which could be achieved by opposing that the clause stand part of the Bill.

The other approach, which is the approach taken in this series of amendments, is to seek to restrict the scope of the discretionary powers to be given to the court. That is what Amendment No. 291P seeks to achieve. It restricts the options to the one option of deferring for a period of six months. That deletes the provisions of the existing subsection (3) and sets out an alternative form in Amendments Nos. 291R and 29IS as to what interests the courts should have regard to. It excludes in particular the interests of sections of the general public who could clearly argue a case, whether or not they entered into legal proceedings, that their interests would be adversely affected if the court proceeded to make an order one way or another. Again I seek to restrict to the bare necessity the extent to which the courts have a role to play. I believe that that is sensible for the future of Scotland. I fully accept that they have to have a role but suggest that it ought to be limited as far as possible.

To return to my comments in reference to the Boddington case, clearly the law is in a state of some uncertainty in this situation. It would be wrong to try to sort that out by means of legislative provisions which address only part of the problem—which may be what has been happening inadvertently in the existing Clause 93. Not for the first time, and I hope not for the last, there is force in the comments made by the noble and learned Lord, Lord McCluskey; namely, that it might be positively dangerous to meddle with or alter the law in this restrictive manner. At this stage, therefore, I beg to move Amendment No. 291 P.

Baroness Carnegy of Lour

This is clearly one of the complicated mechanisms by which the Government have been obliged to try to develop a workable relationship between the Scots parliament and the Westminster Parliament and the citizens of Scotland and their law.

The effect that this and some other mechanisms will have on people in Scotland as a whole worries me greatly. I was very sorry indeed that I could not stay late enough last night to hear and possibly take part in the debate introduced by the noble and learned Lord, Lord McCluskey. That also concerned the effect on the Scottish public of what may happen as a result of the legal provisions.

The Government must take very seriously the question of how we envisage these provisions working out; how the public will see the kind of situation that will arise; what will be said in the newspapers as a result, and in the parliament, when such matters go wrong. There may be a period of doubt and so on.

In their anxiety to find legal mechanisms, the Government are perhaps forgetting what may happen politically as a result. If people in Scotland begin to lose confidence in the law, particularly the new law that is being established around their parliament, we shall be in very great political trouble, and even civil trouble. People will dislike it very much. They believe that the law operates smoothly and in their interest, and they may begin to suspect that it does not. I hope the Government will examine this matter carefully. One cannot expect an answer now from the noble and learned Lord the Lord Advocate to all the points raised by my noble and learned friend. But will the Government examine the matter before Report, and envisage slightly more the politics that they are proposing?

Lord Hope of Craighead

The problem addressed by this amendment is not entirely new in Europe. This kind of issue arises in Germany. The German constitutional court has to deal with problems of this kind arising in regard to legislation of the Länder. The issue may also arise in Spain, given the systems of devolution that operate there.

I make no comment on the detail of the proposed amendment. However, it would be of some comfort to know whether, in framing the clause as they have, the Government have had regard to the way in which similar problems are dealt with in other countries within Europe. I am certain that we have a lot to learn from the constitutional courts in other countries as to what solutions can be adopted to enable the problem of the retrospective effect of a decision to be addressed. Will the noble and learned Lord the Lord Advocate inform the Committee, either now or by letter, as to whether that research has been done?

5.15 p.m.

Lord Hardie

To deal first with Amendment No. 291P, the Government cannot accept this amendment, or the other amendments in the group. As the noble and learned Lord said, the amendment restricts the power of a court to make an order removing or limiting the retrospective effect of a decision that an Act of the Scottish parliament or an action of the Scottish executive is outwith the competence of those bodies.

The Government do not believe that it is appropriate to specify in the legislation a limitation on the period during which a court may suspend the effect of its decision that a provision is ultra vires. The courts need to have flexibility to tailor their response to the particular circumstance of each case. That is not saying anything very different from what my noble and learned friend Lord McCluskey said many years ago: it is not possible to legislate for every eventuality. But that is not what we are doing. We are not looking at particular cases and saying that the court must take into account A, B, C or D and in other situations must act in a different way. We have provided flexibility. The court will obviously take into account such matters as the fact that someone has acted on the faith of legislation which is ultimately shown to be ultra vires. That would be an important consideration. There may be other considerations which would balance that exercise.

These amendments would leave the court with a restricted power as to what it could do if it decided that legislation was outwith the competence of the parliament or the executive. I invite noble Lords to place their faith in the Scottish courts and courts of the Scottish jurisdiction. They have a very good reputation. I have confidence in them and I hope that your Lordships will also express that confidence by entrusting them with this general power to exercise in accordance with their discretion and taking into account principles to which they will no doubt have regard.

In answer to the point raised by the noble and learned Lord, Lord Hope, I am advised that the drafters of the legislation and the policy makers certainly examined other jurisdictions in coming to this formulation. I am unable to say whether they followed those jurisdictions precisely. If the noble and learned Lord wishes to have further information I am happy to write to him on that matter.

The Government believe it is important for the courts and tribunals to have this power. As I have indicated, the court or tribunal will be declaring invalid legislation which, up to that point, has been considered to be valid, and some people will have acted on the faith of that apparently valid legislation. The power will ensure that the courts can protect those who have acted in good faith on that basis. To seek to limit the courts' discretion in the manner proposed would not be appropriate. It is important that the courts are left to decide how to act on the merits of each particular case.

Turning to Amendments Nos. 291Q, 291R and 291S, as I have indicated, we cannot accept these amendments either. One point I would make in that regard is that they appear to make varying and contradictory provision as to whose interests a court or tribunal should take into account when considering whether or not to make an order under Clause 93. That contradiction confirms me in my belief that the Bill strikes the right balance. It directs the court to take into account the interests of those parties who would be adversely affected by the decision, but does not limit them to that consideration alone. I think this represents an appropriate balance, and nothing would be gained by making the changes proposed in the amendments. Clearly circumstances will differ from case to case. In some instances it may be only the parties to the proceedings whose interests are substantially affected, but that would be a little surprising. Overall, I think the courts need the flexibility which the Bill provides.

In that regard, I anticipate that counsel appearing in the case, whether they are law officers or not, would specifically address the interests of other groups of people who may be affected by this legislation, apart from their own clients, so that the court is fully apprised of the issues in order to enable it to decide the matter properly.

With that explanation, I invite the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon

Before the noble and leárned Lord sits down, I wonder whether he would address one point. I specifically raised the issue as to whether persons who would be adversely affected might in some way have the right to become involved in the proceedings as parties. I should have pointed out that Amendments Nos. 291R and 291S are clearly alternatives. I have no doubt that, if Amendment No. 219R were agreed to. the noble Baroness the Deputy Chairman would say that she could not call Amendment No. 291S. They are alternatives which illustrate two approaches that might be taken and there was never any intention that they should both go on the face of the Bill.

A more practical issue is what the court is to do if a body of opinion—maybe a very vocal body of opinion in Scotland, such as the CBI or the TUC—says that the interests of their members, who are not parties to the proceedings, will be adversely affected, and their argument runs along certain economic or environmental grounds, contrary to the policy of the Scottish executive, represented in the proceedings by the Lord Advocate. I have some difficulty as to how a Lord Advocate, arguing the case for the Scottish executive, of which he is a full member, and no doubt seeking to do that very effectively and fully, could at the same time perform some kind of amicus curiae role of drawing to the attention of the court the economic, environmental or other interests of third parties when he disagreed with their assessment of their own interests and with the argument that they wished to place before the court.

What troubles me about this provision is whether or not it will allow the possibility of the court's admitting these individuals as parties to the proceedings. If they come into the proceedings at the stage where the court has already decided that the Act of the Scottish parliament is ultra vires, effectively all they are engaged on is a political debate in which they seek to have a discretionary power exercised in a way which will serve their political interests, whether they be economic, environmental or whatever.

It is for that reason that I return to this theme, which I have mentioned once or twice in Committee, as to precisely what interests the Lord Advocate—or the Advocate General in the case of my other amendment—would be representing were he to go into the proceedings not to argue the initial legal issue but, taking that as read, to argue whether or not discretionary powers should be exercised.

Lord Fraser of Carmyllie

My noble and learned friend Lord Mackay, obviously lighter on his feet than I am, got up rather quicker than I did. I wish to raise more or less the same point. What troubles me about the matter is this. In deciding whether to make an order under subsection (3), the court shall, have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected". I think I understand who that group of people are. The next subsection provides the opportunity for intimation to be given to the Lord Advocate. If the matter is so intimated to him, he has, as I understand it, the right to join the proceedings, because it is provided in subsection (5) that, he may take part as a party in the proceedings so far as they relate to the making of the order". I assume that in the traditional way, if intimation were made to the Lord Advocate, he would, when he appeared, have regard to what is the public interest. That may be a rather broad but perfectly proper responsibility, but we would have the curious position of having three classes of people: those who are parties and are affected; a group of people who are not parties but who would be adversely affected, who seem to have no right to intervene; and the Lord Advocate, who has a broader public interest, who has the right to intervene. One group is excluded, and I do not follow the logic of that.

I wonder whether it might be more appropriate to follow the line offered by my noble and learned friend Lord Mackay of Drumadoon in his Amendment No. 291R, to remove the provision under which the court shall, have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected", and insert instead the broader proposition of the public interest. In those circumstances, only the Lord Advocate would intervene and the difficulty to which my noble and learned friend Lord Mackay adverted would be removed.

Lord Hardie

I understand the concerns that have been addressed. We have to some extent also touched upon a later amendment, Amendment No. 292YEA, and when we come to that amendment perhaps some of what I say now will be taken as dealing with that.

I think there may be a fundamental misunderstanding here as to the purpose of Clause 93 or the stage at which we get to that provision. A Clause 93 order arises only where the court has already decided that something is ultra vires, as one sees in Clause 93(1)(a), and the orders under Clause 93(2) and following go on from there. The question as to whether the Act is ultra vires is a matter where the interests would lie with the Lord Advocate or the Advocate General or the parties to the proceedings. The interests in relation to the vires issue would not lie with third parties who may be affected by the order. In that situation, the Lord Advocate and the Advocate General would both be acting for their respective executives but would also be acting and putting forward arguments—at least, as far as the Lord Advocate is concerned—as to where the public interest lay in Scotland. It would not be appropriate to have third parties in the proceedings until that point.

In deciding whether to make an order under Clause 93(2), the court will have to consider the interests of the parties to the proceedings, and, if the Lord Advocate has not thus far been a party to the proceedings, which is difficult to imagine, he will be given intimation to make representations.

What I would imagine would happen at that stage is that the Lord Advocate, and indeed counsel, in the best tradition of the Faculty of Advocates, would advise the court that not only were there interests that were being specifically addressed in the case but that there was a body of interests, such as the CBI—if that body had been vociferous and quite properly drawn the matter to the attention of the executive—which was claiming to be interested in the outcome of any order that the court may ultimately make. In that situation, if the court wished to have further information about that particular interest, it could afford a third party the opportunity of being heard on the question of whether the order ought to be suspended, although it would not have a title of interest to come into the litigation. I believe that under the rules of court that would be possible. I am pleased to see that the noble and learned Lord, Lord Hope of Craighead, nods his head.

I fully understand the fears of noble and learned Lords, but they may arise because of a misunderstanding about how the procedure under this provision works. With that explanation, I invite the noble and learned Lord to withdraw his amendment.

5.30 p.m.

Lord Hope of Craighead

Before the noble and learned Lord sits down, perhaps I may pick up the point that he has just made. The provision makes no reference to the rule-making power of the court under the Court of Session Act, but I hope I am right in saying that the power of the court under that Act to make rules for all of the procedures before the court, in particular rules about intimation to parties, is not removed in any way by this Bill and the Bill assumes that the court, once the Act has been passed, will undertake its responsibility with the assistance of the Rules Council to make appropriate rules to enable the procedures to work.

Lord Hardie

I can give the noble and learned Lord that assurance. The Bill does not interfere with the administration of the courts as it is currently; nor does it remove any rule-making power available to the court. I anticipate that there are bound to be additional rules following this legislation.

Lord Mackay of Drumadoon

One can never be sure whether one is under a misunderstanding. That is the very nature of the beast. I believe that I now understand the approach. For once I may have got it right. I fully accept that it is a two-stage process. The Lord Advocate may be involved in the first stage because he will be given intimation of a devolution issue. If for any reason he fails to become involved then at the second stage his role will be confined to that described by the noble and learned Lord the Lord Advocate.

As I understand the reply to my supplementary request for information, the underlying policy of the Bill is that it is for the court to decide whether any person's interest has been adversely affected in terms of Clause 93(3) on a case-by-case basis or in accordance with rules of court, which the court can make, as to whether or not such a person can enter into the proceedings. The Government admit the possibility of that happening. Notwithstanding the considerable confidence that I have in both the High Court and shrieval benches in Scotland, if it is competent for such parties to come in, I am concerned that the court will become very much involved in political arguments.

The purpose of these amendments is to clarify the Government's policy on this and one or two other matters. That has been helpfully done in the responses that I have received. This is a matter that I wish to reflect upon. Like the previous group of amendments, I believe that this is a matter to which I shall return in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 291Q to 291S not moved.]

The Earl of Balfour moved Amendment No. 292:

Page 44, line 8, at end insert ("by the decision").

The noble Earl said: Looking at the 19 amendments to Clause 93 (powers of courts or tribunals to vary retrospective decisions), it is clear to me that the original drafting has not been satisfactory and that the Government have had second thoughts. I can take some comfort from the fact that as a hereditary Peer my amendments were tabled before anybody else's, yet the Government wish to get rid of us. Whilst I am happy to bow to the amendments tabled by the noble Lord, Lord Sewel, I ask him to consider Amendment No. 292 which seeks to add to the end of subsection (3) the words "by the decision". As drafted the provision reads: persons who are not parties to the proceedings would otherwise be adversely affected". By what?

I read subsection (4) as if Amendment No. 292BB tabled by the noble Lord, Lord Sewel, had been inserted. I hope I am correct. It reads: Where a court or tribunal is considering whether to make an order under this section,

1. (a) it shall order intimation of that fact to be given to the Lord Advocate, and
2. (b) the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6),

unless the person to whom the intimation would he given is a party to the proceedings".

Surely, in subsection (4) the person in this case can be only either the Lord Advocate or the appropriate law officer. I thought that in England and Wales there were, or are, two law officers: the Attorney-General and the Solicitor-General. In future is there to be only one to deal with Scotland: the Attorney-General?

The noble and learned Lord, Lord Hope of Craighead, pointed out at an earlier stage of this Bill that there was no time limit in Clause 93; nor did there appear to be any compensation provisions for any person adversely affected by the retrospective decision of a court or a tribunal. I consider that to be unfair. I support Amendment No. 292A tabled by my noble friend Lord Selkirk, although I do not believe that it goes far enough in dealing with retrospective decisions. I beg to move.

Lord Selkirk of Douglas

I rise to speak to Amendment No. 292A. I put this forward on behalf of the Law Society of Scotland. When the Government make such an order the Lord Advocate will receive notification, but it is also important that anybody who is likely to be adversely affected by any possible decision is informed. For example, Parliament deals with a wide variety of laws and plans. Plans to be made by citizens are based very much on the present law as it is declared by Parliament. If the Scottish parliament wishes to effect something within the United Kingdom's jurisdiction the court may find that such a provision is outwith the parliament's vires and make an order which removes or limits the effect of the decision of the Scottish parliament. Here there is surely a case for the court to intimate an interest not only to the Lord Advocate but to any other party who is likely to be adversely affected.

Amendment No. 292YEA in the name of my noble and learned friend Lord Mackay of Drumadoon would limit the effect of the amendment to persons who have a right to take part in the proceedings. I should be content with that limitation.

The purpose of tabling the amendment is not to concentrate on specific drafting but to deal with the principle: that groups of people are likely to be adversely affected. What rights, safeguards and protections are they to have? I invite the noble and learned Lord the Lord Advocate to address that point rather than the details of my amendment.

My noble and learned friend Lord Fraser of Carmyllie raised a valid and legitimate matter when he said that public interest is of great importance. How is it to be safeguarded when groups of people are likely to be adversely affected? I recognise the reality that rules of court could cover the issue. However, there is no requirement in the Bill, and I invite the Lord Advocate to discuss this matter between now and Report stage with the Lord President of the Court of Session. The Bill is far too vague when it deals with people and groups who are likely to be adversely affected. There is a gap. It is an issue that requires to be resolved. I hope that the noble and learned Lord the Lord Advocate will feel able to consider the issue further before Report stage.

Lord Mackay of Drumadoon

It may be of assistance if I speak briefly to the amendments in the grouping. I shall refer to my own amendments and one or two others.

I understand the reasoning underlying the amendment in the name of the noble Lord, Lord Selkirk, although I have some practical difficulties with it which the noble and learned Lord the Lord Advocate and I have just discussed. The practical problem of giving intimation to anyone who might be adversely affected by a specific issue would be mind boggling. For example, the idea of intimating some action relating to sheep farming or beef on the bone to every hill farmer in Scotland would be out of the question. While I sympathise with the concept underlying the amendment, there is a practical problem.

Amendment No. 292BA touches on an issue which I raised earlier. I have nothing further to say on that. I believe that the Government are sympathetic to the second part of the amendment relating to "the relevant law officer", since Amendment No. 292BB appears in the name of the noble Lord, Lord Sewel. While I have no objection in principle to the amendment, I have some difficulty in following the qualification set out at paragraph (b) which states: the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6)". The fault may be entirely mine but I find it difficult to imagine any decision covered by the provisions of subsection (1) of Clause 93 which would not be a devolution issue within the meaning of paragraph 1 of Schedule 6. Even if there could be such a situation—at present I have some difficulty in understanding it—should not the United Kingdom Government in any event receive intimation of what is going on and have the right to enter the proceedings? If the court is duty bound to have regard to the interests of other parties which might be adversely affected, it seems to me that there should be some force whereby the United Kingdom Government—whether through the Advocate General or by other means—should receive intimation of what may be pronounced by way of an order.

The other amendments in my name are consequential. I speak to them formally.

5.45 p.m.

Lord Hardie

Perhaps I may deal with Amendment No. 292 in the name of the noble Earl, Lord Balfour.

I thank the noble Earl for the amendment, which he intends would clarify the meaning of Clause 93(3). The noble Earl wishes to make it clear that the courts or tribunals must have regard to the extent to which persons who are not parties to the proceedings would otherwise be affected by the court's decision. This is essentially a drafting amendment. We have given it careful consideration but we believe that the intention behind the clause as drafted is clear and we do not consider the amendment necessary although we understand the reasoning behind it.

In Amendment No. 292A, the noble Lord, Lord Selkirk of Douglas, raises the question of requiring courts to order intimation of intention of an order under Clause 93. To some extent that has been prefaced by the discussion we had on the previous amendment where I confirmed to the noble and learned Lord, Lord Hope of Craighead, that the Bill does not affect the general power of the Court of Session to make rules of procedure with the assistance of the Rules Council. I anticipate, as I have already said, that the Court of Session would make rules to cover, among other things, orders under Clause 93; and would deal with the question of intimation.

The noble Lord's amendment goes too wide for the reasons explained by the noble and learned Lord, Lord Mackay of Drumadoon. It would be impossible to intimate to everyone. But it would be for the court to consider what class or category of people should receive intimation in given situations. It would be equally for counsel involved in the case to draw to the attention of the court that they were aware of a body of interest which was not represented in the proceedings. The court could then consider whether that group of people should be represented. Those are all matters ultimately for the Lord President and the Rules Council.

On Amendments Nos. 292B, 292C, 292D, 292E, 292BA, 292CA, 292DA and 292ZEA, it will be apparent that the Government have sympathy with the amendments and for that reason have brought forward amendments which achieve a similar aim which the Committee has accepted. I hope that it will be helpful if I explain why the Government do not think that the amendments of the noble Earl, Lord Balfour, or the noble and learned Lord, Lord Mackay, are quite right. We do not think it would be appropriate to give intimation to the parliament as the noble Earl provides. We appreciate that intimation will be given to the Welsh assembly. I suspect that that may have provoked the amendment. However, this reflects the different legal entity of the assembly and the parliament.

The amendments tabled by the noble and learned Lord, Lord Mackay, provide for intimation to be given to the Lord Advocate and to the First Minister. It is important that intimation is given to the executive's Law Officer in every case, no matter where the proceedings take place. However, I do not see what is to be gained from extending that requirement to the First Minister. I am sure that the Lord Advocate will advise the First Minister if a relevant case arises and can make such representations to the courts on behalf of the Scottish executive as required.

I turn to government amendments, Amendments Nos. 292BB, 292BC, and 292DB. As I have already indicated this group of government amendments covers much the same ground and ensures that the appropriate Law Officer is given intimation of the fact that a court or tribunal intends to make an order under Clause 93.

In most cases, we would expect that the appropriate Law Officer would have been given sufficient notice under Schedule 6, which requires intimation to be given to the Law Officers.

However, to answer the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, I anticipate that there may well be cases under Clause 93(1)(b) which do not raise a devolution issue. What is concerned there is the vires of the action of the Scottish executive confirming or approving a provision of subordinate legislation. It may be that a Scottish Minister may have done something under subordinate legislation which would not involve the English Law Officers. That is one example which I can put forward at present. There may be others.

The amendments ensure that the appropriate Law Officers are given intimation where a court is considering making an order under Clause 93. The Lord Advocate, the Law Officer of the Scottish executive, will receive intimation regardless of where proceedings occur, along with the appropriate UK Law Officer. For proceedings in Scotland, the intimation would be given to the Advocate General; but for proceedings in England and Wales, the Attorney-General, and in Northern Ireland, the Attorney-General for Northern Ireland. would be appropriate Ministers.

In answer to the point made by the noble Earl, there are currently four law officers; the Attorney-General and Solicitor-General affect England, Wales and Northern Ireland and the Lord Advocate and Solicitor-General for Scotland affect Scotland. After devolution, in Scotland there will be the Lord Advocate and Solicitor-General for Scotland while in UK Westminster terms there will still be the Attorney-General and the Solicitor-General. However, there will also be the Advocate General who will have responsibilities for Scottish matters in the UK context.

The Earl of Balfour

I beg leave to withdraw Amendment No. 292.

Amendment, by leave, withdrawn.

Lord Selkirk of Douglas had given notice of his intention to move Amendment No. 292A:

Page 44, line 10, after second ("to") insert ("any person adversely affected in terms of subsection (3) above and to").

The noble Lord said: I am grateful to the noble and learned Lord the Lord Advocate for his reply. I shall be pleased if he can follow up with the Lord President the matter regarding the rules of court.

[Amendment No. 292A not moved.]

[Amendment No. 292B not moved.]

The Deputy Chairman of Committees (The Viscount of Oxfuird)

I must advise the Committee that should Amendment No. 292BA be agreed to I cannot call Amendment No. 292BB due to pre-emption.

Lord Mackay of Drumadoon had given notice of his intention to move Amendment No. 292BA:

Page 44, line 11, leave out ("Lord Advocate unless he") and insert ("First Minister and the relevant law officer unless either of them").

The noble and learned Lord said: I do not intend to insist on the amendment. However, I should be grateful if the noble and learned Lord the Lord Advocate could write to me about the point I raised in connection with Amendment No. 292BB. I have some difficulty in following the position, but the fault may be entirely mine.

If the noble and learned Lord's example is correct it would seem to follow that the effect of Clause 93 is changing the law of Scotland even when a member of the Scottish executive is not concerned with an Act which falls within his devolved competence but is involved with an issue which may be in a wider form of competence. That is a difficult and tricky issue. I did not follow precisely what was said and if, following further reflection, more can be said before Report I should be grateful.

[Amendment No. 292BA not moved.]

Lord Hardie moved Amendments Nos. 292BB and 292BC:

Page 44, line 11, leave out from ("Advocate") to ("the") in line 12 and insert ("and (b) the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6), unless the person to whom the intimation would be given is a party to").

Page 44, leave out line 14 and insert ("A person to whom intimation is given under subsection (4)").

On Question, amendments agreed to.

[Amendments Nos. 292C to 292DA not moved.]

Lord Hardie moved Amendment No. 292DB:

Page 44, line 20, at end insert ("and "the appropriate law officer" means—

1. (a) in relation to proceedings in Scotland, the Advocate General,
2. (b) in relation to proceedings in England and Wales, the Attorney General,
3. (c) in relation to proceedings in Northern Ireland, the Attorney General for Northern Ireland.").

On Question, amendment agreed to.

[Amendments Nos. 292E and 292ZEA not moved.]

Lord Mackay of Drumadoon moved Amendment No. 292YEA:

Page 44, line 20, at end insert— ("() Apart from the provisions of subsections (4) and (5), this section shall not be construed as giving to any person a right to take part as a party in any proceedings to which this section applies, if that person would not otherwise be entitled or permitted to do so.").

The noble and learned Lord said: The amendment touches on an issue we have already discussed. My purpose in bringing it forward is that it seeks to establish that the provisions of subsections (4) and (5) do not give a right to any party to enter proceedings and that that is accepted by the Government against the background that it leaves the Court of Session whether by rule of court or otherwise to admit such an individual as a party. If that could be clearly stated at the Dispatch Box it would certainly satisfy me. However, for the purpose of assisting party litigants and others, there may be some force in putting it on the face of the Bill. I beg to move.

Lord Hardie

As already explained, I confirm that the provision does not give parties a right to appear. As regards putting it in the Bill, it is a drafting matter to which we can give thought and come back if necessary.

Lord Mackay of Drumadoon

On the basis that my drafting might be improved upon, I am happy to leave the noble and learned Lord to reflect on the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93, as amended, agreed to.

Lord Mackay of Drumadoon moved Amendment No. 292XEA:

After Clause 93, insert the following new clause—

SUPERVISORY JURISDICTION OF COURT OF SESSION

(" . The provisions of this Act shall have no effect on the existence or extent of the supervisory jurisdiction of the Court of Session as it exists on the day when sections 91 and 93 of this Act come into force.").

The noble and learned Lord said: We have touched on this issue and it has been indicated that nothing in the Bill is intended to interfere in any way with the existence or extent of the supervisory jurisdiction of the Court of Session. If that can be unequivocally stated I shall withdraw the amendment. I beg to move.

Lord Hardie

The Bill enables references of devolution issues to be made by the law officers directly to the Judicial Committee of the Privy Council. It enables the Judicial Committee to deal with other references of appeals to it. Subject to that exception, the Bill does not affect or extend the jurisdiction of the Court of Session.

The Court of Session will retain its supervisory jurisdiction to review decisions and administrative actions. The devolved administration will be subject to the jurisdiction. If, however, devolution issues arise in the exercise of the jurisdiction, the court will need to comply with the special procedures in Schedule 6.

If one is talking about the supervisory jurisdiction in the context of judicial review and administrative acts the short answer is that the Bill does not affect the exclusive jurisdiction of the Court of Session in that regard. However, if one goes wider and goes into devolution issues it will be apparent that other courts can deal with devolution issues at first instance.

Lord Renton

I would have thought that the very explanation that the noble and learned Lord has given indicates the desirability of the removal of any possible doubt. He used the word "if' rather a lot in the course of his explanation. Whether or not we use the exact words in the amendment, I believe that the removal of doubt as regards the jurisdiction of the Court of Session is essential in the complex provisions of the Bill.

Lord Hardie

I am sorry. I was trying to shorten the position. Perhaps I may explain it more fully. The amendment seeks to reserve the supervisory jurisdiction of the Court of Session to deal with judicial review matters. The Government consider that that would go too far. It is intended that the Scottish parliament shall be able, if it wishes, to legislate to alter the scope of judicial review. But nothing in the Bill has that effect. It will be for the parliament to decide whether the supervisory jurisdiction of the Court of Session should be interfered with in any way. In the Scottish parliament that would be in the context of considering a Court of Session Act or whatever. It may be that the parliament could consider that certain types of review might be taken in the sheriff court. But all those issues would be for the Scottish parliament. This amendment would prevent the parliament from exercising that power.

Subject to the parliament's power to legislate, the Bill is not intended to affect either the existence or the extent of the Court of Session's supervisory jurisdiction. The Court of Session will retain its jurisdiction to review decisions and administrative actions, and the devolved administration will be subject to that jurisdiction. If devolution issues arise in the exercise of the court's jurisdiction, as opposed to a review of administrative actions of the executive, it will have to comply with the provisions and procedures of this Bill.

Schedule 6 and Clauses 91 and 93 explain how such issues should be dealt with and confer a new power on the court to vary or limit any retrospective effect. We have discussed that earlier today. The Bill enables references of devolution issues to be made by the Law Officers directly to the Judicial Committee, and to deal with other references and appeals. Subject to that exception, the Bill does not affect or extend the jurisdiction of the court in relation to particular types of proceedings.

I hope that that is a fuller explanation which will satisfy the noble Lord. I apologise for trying to cut matters short.

6 p.m.

Lord Renton

Dare I suggest that it would be a useful precaution if we started off an amendment on these lines with the words, Subject to the provisions of this Act"? That would ensure that any residuary jurisdiction of the Court of Session remained.

Lord Hardie

I am very reluctant to draft legislation in the Chamber. I appreciate and recognise the expertise of the noble Lord over a considerable number of years in dealing with such matters. With respect, it would not be appropriate for me to seek to draft legislation here and now.

Lord Hope of Craighead

Before the noble and learned Lord sits down—I do not want to indulge in drafting either—one point that he might like to bear in mind when he considers the point is that there may be some areas in respect of which the Scottish parliament might wish to examine the extent of the supervisory jurisdiction. One example is awards by arbitrators, which at present are subject to the supervisory jurisdiction. There are some people who think that that is undesirable, given the need for finality in arbitration awards. That would fall within the scope of the Scottish parliament unless otherwise excluded by the Bill. I would prefer that the Bill would leave the matter open for consideration by the Scottish parliament.

Lord Mackay of Drumadoon

Perhaps I may indicate for the purpose of making speed that, as the noble and learned Lord will recall from the debate on Tuesday night or Wednesday morning, this issue was one which was raised by me and a number of members of faculty in Edinburgh because of a genuine uncertainty on their part as to what the position will be. I understand that the noble and learned Lord has explained to us that, subject to the provisions which would require devolution issues to be referred or appealed to the Judicial Committee—which are procedural aspects of dealing with devolution issues—the terms of this Bill do not in any way affect either the existence or the extent of the supervisory jurisdiction.

Beyond that, among the matters being devolved to the Scottish parliament is a legal or legislative competence, if so advised, to enact legislation—presumably primary legislation, but not necessarily—which might amend the extent of the supervisory jurisdiction or, indeed, the courts in which the issues could be raised if it were taken away in part from the Court of Session. On both the substantive and procedural matters the Scottish parliament would have the competence. Whether it acted in accordance with the suggestion of the noble and learned Lord, Lord Hope, and restricted the extent might be a matter for discussion. Equally there might be other areas where it would be sensible to broaden, modify or amend it in some way.

In the light of the discussion this afternoon, I will do two things. First, with the assistance of my noble friend Lord Renton, I will reflect whether a more happily framed amendment could be tabled on Report. Secondly, I would intend to discuss the matter with those who raised this concern with me in anticipation of the Committee Stage debate. I have little doubt that the noble and learned Lord the Lord Advocate and his officials—and, more importantly, his draftsmen—will consider whether there might be some scope for an amendment which could remove any doubt. On that basis, I beg leave to withdraw Amendment No. 292XEA.

Amendment, by leave, withdrawn.

Clause 94 [The Judicial Committee]:

Lord Mackay of Drumadoon moved Amendment No. 292EA:

Page 44, line 23, at end insert ("or the House of Lords)").

The noble and learned Lord said: In moving this amendment, I will speak also to Amendments Nos. 292EB and 292EC. I do not intend to speak to Amendment No. 292ED.

The first of these amendments raises a very important constitutional principle of whether the Appellate Committee of your Lordships' House should be bound by a decision of the Judicial Committee of the Privy Council on devolution issues. In the light of the observations made earlier in our debate this afternoon that the whole issue of the procedures set out in Schedule 6 is to be discussed further on Report, and in the light of the observations of the two noble and learned Lords who intervened, I raise this as an important issue. Whether or not the Government wish to give an answer today, I would certainly wish to have an answer or a comment from them before the Bill becomes law.

The second amendment raises a more practical issue. I am happy to see in the Committee noble and learned Lords who have sat on the Judicial Committee and who may have a contribution to make to this. As I understand it, the procedure which the Judicial Committee follows in the judicial business it has to deal with, is regulated to some extent by Orders in Council and, in other respects, by informal practice notes. The normal practice and convention, as I understand it, is that, if the members of the committee who hear a case are unanimous in the view as to how the case should be disposed of, the advice of the board which is tendered to Her Majesty is drafted by one of its number, and there is only one opinion for any lawyer interested in why the decision was reached to have regard to.

My understanding is that since 1966 it has been competent for members of the committee who disagree with the majority to issue their own opinion, setting out—whether in short or longer form—why they so disagree. I also understand that since some date in the 1970s—unfortunately I have been unable to obtain a copy of the relevant practice note—there is a procedure by which a member of the committee who agrees with the majority in the result of the case but disagrees with some legal decision which may have arisen in the course of the argument can in those exceptional circumstances set forth his own opinion. I note a measure of surprise on the face of the noble and learned Lord, Lord Hope, who has obviously not seen this practice note either.

I raise this for the very practical purpose that, if we are to move into the field of having important devolution issues considered by, presumably, five members of the Judicial Committee, it is very important that they should be free to issue their individual opinions on a case so that the law can develop. Undoubtedly the development of both civil and criminal law in the United Kingdom has been helped by the fact that in important cases which come before the Appellate Committee of your Lordships' House—even if the members of the Appellate Committee are united in their view as to how the case should be decided—the members write their individual speeches. The law is enriched because it enables lawyers to pick up ideas, float them out and develop them further in subsequent cases. It would be very unfortunate indeed if a similar practice was not followed by the Judicial Committee. That is what lies behind Amendment No. 292EB.

I fully accept that it would not be for this House in any way to dictate how the Judicial Committee should go about its business but I would hope that in raising this issue we might at least have an undertaking from the Government that in the framing of the Order in Council some consideration would be given to this issue before the matter was placed before Her Majesty in Council. A quick glance through the draft that is available suggests that it has not yet been addressed.

Finally, Amendment No. 292EC raises a practical issue which arises from time to time. Sometimes, in the course of legal argument, counsel rightly or wrongly make concessions, whether voluntarily or in response to questioning from one or more members of the Bench. The court's decision thereafter proceeds on the basis that such a concession has been made. If the matter has gone up to the Judicial Committee and the case has been decided, among other things, on the basis of a legal concession having been made, there may be scope for an argument that it would be wrong to bind every other court in a subsequent case where a similar legal concession had not been made, because it would inevitably mean that, even if all the parties concerned were agreed that the matter ought to be looked at afresh in the lower courts, that could not happen and the matter would have to go to the Judicial Committee, possibly with unnecessary expense for all concerned. That is a further practical issue which I raise in the third amendment. I beg to move.

Lord Hope of Craighead

As a serving member of the Judicial Committee, perhaps I may make two observations. The first is in regard to Amendment No. 292ED. This is a matter on which I would suggest that members of the Judicial Committee would wish to express views in the framing of appropriate rules or orders. For my part, I would prefer that the matter was not addressed directly in legislation but was dealt with by means of orders. Another advantage is that it would give some room for flexibility as experience develops in the course of the working out of the new jurisdiction. As for decisions which proceed upon a concession, I should have thought that there was ample jurisprudence to show that, when any court is aware that a previous decision has proceeded on a concession, it removes its effect as a binding authority and is regarded as subject to review in the light of that known fact.

6.15 p.m.

Lord Wilberforce

The noble and learned Lord has raised three quite separate points. To my mind, by far the most important is the first amendment, Amendment No. 292EA, which inserts the words, "or the House of Lords". That brings us into a difficult area arising from the fact that it has been decided to have two separate courts in this country—the House of Lords, which is still to remain the supreme court for the United Kingdom, and this separate ad hoc or fluctuating court, the Judicial Committee of the Privy Council, to decide devolution issues. Therefore, one has to face the difficult question: which is to have priority, one over the other?

If the devolution court, if I may call it that, were to be a fully accepted constitutional court in the style of the German constitutional court or the Italian constitutional court, or, for that matter, the Supreme Court of the United States, I should have no hesitation in accepting a proposition that decisions of that court should have priority over and be binding on all other courts. But I find a much greater difficulty with the present rather untidy set-up of the two courts, with no great definition of the dividing line between them.

There are difficulties either way. In favour of the amendment to insert the words "or the House of Lords" is the undoubted proposition, which is a strong one, that, so long as the United Kingdom is entire and not divided, the supreme court is and should remain the House of Lords in this country. For my part I should be very unhappy in departing from that in favour of allowing priority to another court, even in such important matters as devolution and even though, in practice, that other court—the Judicial Committee—will no doubt be equipped with high grade judges, possibly the same persons in practice as will sit in the House of Lords. Nevertheless, in my mind, I am greatly impressed by the constitutional importance of retaining the ultimate superiority of the House of Lords.

On the other hand, one gets into great difficulties when one looks at the set-up by which decisions or issues are referred to the Judicial Committee on the way up. In Schedule 6 there are elaborate provisions providing for references to the Judicial Committee by lower courts—for example, by the Inner House in Scotland or by the Court of Appeal in this country—during the course of the proceedings. One may have this situation. A case comes up with, assuming it is a civil case, no limitation on the right of appeal. It comes to the Court of Appeal in England. It decides to refer the matter—a devolution issue—to the Judicial Committee, which gives a ruling. There is then an appeal, as of course there can be as of right, to the House of Lords. The same may happen in Scotland in a civil matter. The House of Lords is clearly entitled to over-rule a decision of the lower court. But is it bound by the decision of the Judicial Committee given at an intermediate stage? That is very difficult. On the other hand, if the Judicial Committee has given a ruling, is it acceptable that the House of Lords should then be entitled to take a different view? There are difficulties both ways.

One has also to bear in mind Schedule 6(32) which states that the House of Lords, in a case before it, may decide a devolution issue if it thinks it appropriate in the circumstances but otherwise shall refer it to the Judicial Committee. There is a flexible and rather fuzzy compromise between the superiority of the two courts. I am very unhappy about this. I am impressed by the argument of the noble and learned Lord, Lord Mackay of Drumadoon, and by the constitutional position. I am reluctant to see anything inserted into an Act of Parliament which provides that our supreme court in this country is bound by decisions of another court. On the other hand, I see the practical objections in relation to the set-up which we at present have under Schedule 6.

One has to consider a minor point. What is meant by the words in Clause 94, shall he binding in all legal proceedings"? Does it mean that it is binding inter-parties—between the parties—or is it binding as a matter of jurisprudence? Therefore, is it to be a binding authority in future cases? The House of Lords has never accepted that decisions of the Judicial Committee of the Privy Council, however eminent and important, are binding on it. It no doubt defers to them; it gives them respect; it follows them when necessary; but it has always reserved the position that decisions of the Judicial Committee are not binding on the House of Lords.

That is a minor point, possibly of drafting. I prefer to rest on the main constitutional question, which I believe this House has to face, although possibly not today, of whether it is acceptable that decisions of the Judicial Committee shall be binding even inter-parties on the House of Lords.

As the noble and learned Lord raised three questions together, perhaps I may speak also to Amendment No. 292EB, which concerns separate opinions. As the noble and learned Lord stated, under the existing practice, as laid down by Order in Council in 1966, dissenting opinions are allowed.

This provision was inserted, changing the practice of very many years at the instance of Commonwealth judges—mainly, I think, Sir Garfield Barwick from Australia, a very strong-minded and important judge. It was necessary to give Commonwealth judges a chance to expound their point of view. That was inserted in the practice and it is the practice at the present time, so that from that point of view the amendment might be said to be unnecessary. However, one still has to face the question: is it right or is it not? I find that a question of great difficulty. Again of course, it can be said that it is very nice to have a rich division of opinion. It is helpful in future cases and also helpful in jurisprudence and it helps to develop the law.

That I would accept entirely in cases of ordinary civil litigation, or even perhaps in criminal litigation. It is desirous very often to have the other point of view put forward so that legislators may have an opportunity of seeing what the arguments are. But now we are faced with a very different situation. We are faced with intensely political issues, and they may get more political as we go on. Is it desirable—I just ask this question rhetorically—that we should allow members of the Judicial Committee of the Privy Council to express dissenting views? You may then have a division on party lines. You may have a tendency for judges who are known to be intense devolutionists to be appointed to sit on the court or, conversely, judges who are known to be in favour of the unity of the United Kingdom to sit on the court. You may at any rate have disputes and recriminations and more politicisation of what ought to be a purely judicial process.

I do not know what the answer is. I shall be very glad to hear what the noble and learned Lord says about it, but I just wanted to make the point that it is by no means easy to decide, as the amendment suggests to us, that it is a good thing to have dissenting opinions. From one point of view it is and from another point of view it is not. If you want to stir up and allow controversy and have more transparency, more argument in the open, then by all means let us have it. If you want to keep the peace and have a rational and gentle progress towards devolution in a peaceful way, then I suggest that not only should the amendment not be allowed but that something should be inserted positively to say that dissenting opinions are not to be permitted, as they would be if nothing were done.

Perhaps the suggestion of the noble and learned Lord, Lord Hope of Craighead, is the best solution in the end: leave it to the Judicial Committee itself to decide and to frame its own rules. It is perhaps rather ducking the issue, but from a practical point of view at this stage it may be the best solution and I would not be opposed to it. I just wanted to give some arguments which might indicate that the noble and learned Lord's amendment is not all that easy.

Lord Sewel

I think there is one thing that we are all agreed on, and that is that things are not always easy. That is certainly true of this part of the Bill. The Government do not accept Amendment No. 292EA, which would alter the binding nature of decisions of the JCPC in relation to the House of Lords. The Government believe that it is important that the decisions of the JCPC are binding in all legal proceedings other than proceedings before the JCPC itself. Amendment No. 292EA would mean that they were not binding upon this House, and we do not accept that position.

Devolution issues will seldom be decided by this House. In normal circumstances, under Schedule 6 of the Bill any devolution issue which arises in judicial proceedings in this House will be referred to the Judicial Committee unless this House considers it more appropriate that it should determine the issue itself. We think it is appropriate that this House should not be able to depart from the earlier decisions made by the JCPC. We believe that the JCPC is ideally placed to resolve disputes about vires. It has a vast experience of dealing with constitutional issues from the Commonwealth, making the provision that the JCPC's decisions of the highest status will ensure that clear decisions with a clear status are produced and that devolution issues are treated consistently. That is the advantage behind the line that we are advocating.

Regarding Amendment No. 292EB, I find myself in very close agreement with the noble and learned Lord, Lord Hope of Craighead. The factual position has been outlined by the noble and learned Lord, Lord Mackay of Drumadoon, and I think from there on that it is really a matter for the court itself to decide matters on its own basis, and let practice and convention develop within the court.

Regarding Amendment No. 292EC, again I fall back on the point which was expressed by the noble and learned Lord, Lord Hope of Craighead. We have his explanation of what the effect of a case being decided on a concession would be, and I am prepared to rest on that.

Lord Mackay of Drumadoon

The noble and learned Lord has dealt briefly with the three amendments, and I anticipate that at Report stage we may have more to say about the issue which lies behind the first of the amendments. I am grateful to the noble and learned Lord, Lord Wilberforce, for giving a quite fascinating contribution to our debate.

As far as the second amendment is concerned, I fully accept, as I indicated at the outset, that this is a matter which would fall to be done by Order in Council. I do not think at the present time it is left entirely to members of the Judicial Committee themselves, and indeed the draft of the order that we have indicates that it will be Her Majesty's Council that decides on procedure, as apparently Her Majesty's Council has decided in the past about the issue of dissenting opinions.

I listened with fascination to what the noble and learned Lord said about the possible undesirability of allowing dissenting opinions and, if I may say so, his concern that this might prevent judges being drawn into political controversy. It certainly struck a chord with one or two of the matters I have been arguing earlier.

As regards Amendment No. 292EC, obviously I understand and accept the views that have been expressed and I will draw this to the attention of the High Court judge in Scotland. I thought it was very necessary that this issue should be addressed, and we clearly have done that. I beg leave to withdraw Amendment No. 292EA.

Amendment, by leave, withdrawn.

[Amendments Nos. 292EB, 292EC and 292ED not moved.]

The Earl of Mar and Kellie moved Amendment No. 292F:

Page 44, line 37, at end insert— ("(d) provide such resources to the Judicial Committee as Her Majesty considers necessary or expedient.").

The noble Earl said: We have already heard about the possible need for alteration of the structure of the Judicial Committee of the Privy Council. Now I should like to move Amendment No. 292F, which has the purpose of ensuring that the Judicial Committee, or whatever it is to become, is adequately funded and resourced for its new devolutionary responsibilities. Although we hope that this function will not be exercised very often, it may be. We do not know how much work will come from this new source, but I believe that we should make sure that a suitable resources package is developed to meet the needs of the Judicial Committee. It will be important that devolution issues are dealt with speedily and are not caught up in a logjam, which itself might be the result of inadequate resources. I beg to move.

Lord Sewel

I understand why the noble Earl has tabled this amendment, but I can assure him that it is totally and utterly unnecessary. The government of the day would always make sure that sufficient resources were available for the Judicial Committee to do its job. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.

Lord Mackay of Drumadoon

Before the noble and learned Lord sits down, am I right in thinking that when members of the Judicial Committee of the Privy Council sit in that committee they are not actually paid for doing so?

Lord Sewel

There may still be costs incurred in their deliberations.

6.30 p.m.

The Earl of Mar and Kellie

I am almost content with what the Minister said. I believe that in the event of hostility between the two parliaments, there may be a rash of devolution issues to be decided. However, having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 94 agreed to.

Lord Mackay of Drumadoon moved Amendment No. 292ZFA:

After Clause 94, insert the following new clause—

PROTECTION OF THE PARLIAMENT FROM INTERDICT OR INJUNCTION

(" . No court shall pronounce any interdict or injunction against the Scottish Parliament or any of its committees restraining the Parliament or any of its committees from holding any proceedings or considering or deciding any item of business at such proceedings.").

The noble and learned Lord said: In moving this amendment I shall speak also to Amendments Nos. 292YFA, 292XFA and 292WFA. The first of these amendments raises the issue of interdicting the parliament and its committees from holding any proceedings or considering or deciding any item of business at such proceedings. That occurs from time to time in relation to the proceedings of local authorities. It is certainly not unknown where, in anticipation of a meeting taking place, one or more parties, whether or not they be members of the authority, seek to obtain a court order preventing the meeting taking place. Frequently that has been done at the eleventh hour with media in attendance to ensure maximum publicity for what is going on.

I raised the matter in the course of the proceedings on the Government of Wales Bill. I understood it to be accepted that in that regard it would be competent. It strikes me that that may be part of the whole issue of parliamentary privilege which I know the Minister undertook to look at before Report. It is an issue on which I am awaiting a statement in the light of what was said on 28th July.

Lord Sewel

I thank the noble and learned Lord for giving way. Perhaps I may indicate that the Government have considerable sympathy with the arguments advanced in this area. It is a matter of some difficulty and complexity. We recognise the possibility of amending the Bill and are considering actively what amendments we can bring forward at a later stage.

Lord Mackay of Drumadoon

Perhaps I may invite the Minister to indicate whether that will cover also Amendment No. 292WFA, an issue raised by the noble and learned Lord, Lord Rodger of Earlsferry, as to whether the court could pronounce orders for the Scottish executive to introduce a Bill to parliament or make subordinate legislation and an order requiring parliament to pass legislation. It seems to me that that is in the same area. Perhaps the Minister can indicate, on an entirely without prejudice basis, that he will consider also Amendment No. 292WFA. I beg to move.

Lord Sewel

I have indicated clearly that it is highly likely that we shall be bringing forward amendments in relation to the earlier points raised by the noble and learned Lord. I cannot make that commitment as strongly with regard to Amendment No. 292WFA but I am prepared to look at the matter.

Lord Mackay of Drumadoon

I have a concern in relation to Clauses 6(6) and 8 of the Human Rights Bill. It would be competent for the Scottish executive to be ordered by a court to present a Bill to parliament and competent for the Scottish parliament to be made the subject of an order requiring it to pass such a Bill. Similar orders could be pronounced in relation to subordinate legislation.

As I indicated, that issue was raised by the noble and learned Lord, Lord Rodger of Earlsferry, on 28th July at col. 1368 of the Official Report when he drew attention to the need to make sure that the provisions of the two Bills—the Human Rights Bill and the Scotland Bill—were compatible. The point he made at that stage was not responded to by the Minister. I understand from checking with the Library that no letter has been written in relation to the matter. I am concerned that it should be addressed further. It may arise also under Clause 54 concerning the powers of the Secretary of State which we have discussed on a number of occasions.

In view of the anxiety to move on to other business in due course, I shall not say anything further at this stage. However, it is clearly a matter to which we must return on Report. We may also return to the other points I have raised.

Lord Fraser of Carmyllie

Before my noble and learned friend withdraws the amendment, I regard the Minister's intervention as the most important he has made during the course of this Committee stage. It is extremely valuable. In view of his remarks, I shall not press him further. However, before we reach this matter on Report I hope that we shall have an opportunity in advance to reflect for as long as possible on what changes the Government may be introducing.

Lord Sewel

Perhaps I may make an offer of consultations and discussions on this point because I recognise its importance.

Lord Mackay of Drumadoon

I greatly welcome that further intervention. I join with what my noble and learned friend Lord Fraser said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 292YFA to 292WFA not moved.]

The Earl of Balfour moved Amendment No. 292FA:

Before Clause 95, insert the following new clause—

INQUIRIES

(" .—(1) The Parliament may cause an inquiry to be held into any matter relevant to the exercise of any of its functions.

(2) Section 210 of the Local Government (Scotland) Act 1973 (power to direct inquiries) shall apply in relation to an inquiry held under subsection (1) as if it were a local inquiry held under that section and the Parliament was the Minister causing it to be held.").

The noble Earl said: It seems a long time since we started dealing with the business on this Bill. I am not at all sure whether there are any facilities for the parliament of Scotland to enable inquiries to be held. This is one effort on my part to suggest how that may be done. I believe that the parliament should have that power. With those few words, I beg to move.

Lord Hardie

I accept the point made by the noble Earl that the Bill already enables the parliament to conduct its own inquiries under Clause 23 but, on the other hand, does not contain any explicit provision which would allow the establishment of separate inquiry bodies. It may be helpful if I remind the Committee that Ministers and Parliament rely on the Tribunals of Inquiry (Evidence) Act 1921 to set up inquiries such as the Cullen Inquiry. Those powers are tied closely to Westminster procedures and will not transfer to Scottish ministers. As a result, the noble Earl is correct to say that neither the Scottish executive nor the Scottish parliament will enjoy, from the beginning, the general powers to set up such inquiries whereas a different situation arises in Wales. The key difference between Wales and Scotland is that the Scottish parliament will be able to legislate, if it wishes, to give itself or the executive the power to establish inquiries either in general terms or in relation to a particular issue in respect of matters within the devolved competence.

While this amendment would give the parliament—but not the executive—immediate powers to establish inquiries, it would also tie such inquiries to the local government inquiries rules and procedures. By contrast the 1921 Act applies the rules of the Court of Session. We think on balance it is preferable to leave the parliament to make its own provision and to allow it a free hand to decide what rules of procedure it would wish any inquiry to follow. With that, I would invite the noble Earl to withdraw his amendment.

The Earl of Balfour

Perhaps I may ask just one more question. Can the Scottish parliament, assuming it is functioning, hold or arrange to hold through its procedures an inquiry into any specific matter it wishes or will it be limited in any way on a devolved issue?

Lord Hardie

The parliament could legislate to hold an inquiry for any particular issue within its devolved competence.

The Earl of Balfour

The noble and learned Lord, Lord Hardie, just said "legislate". That, I fear, will take some time. If something rather urgent came up and it was felt it would be of benefit to the parliament to have an inquiry, does it need to go to the extent of introducing a Bill to be able to do so? That seems to be rather restricting its powers, if I may say so.

Lord Hardie

What I am saying is that it could legislate generally to make provision for the holding of inquiries in appropriate cases. Thereafter there would be an administrative or executive decision, which may, of course, involve advising parliament.

The Earl of Balfour

That is now clear in my mind. I am relieved by those words and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 95 [Power to make provision consequential on Acts of the Scottish parliament]:

[Amendments Nos. 292FB and 292FBA not moved.]

Clause 95 agreed to.

Clause 96 [Power to make provision consequential on this Act]:

Lord Hardie moved Amendment No. 292FBB:

Page 45, line 6, leave out ("prerogative instrument or other") and insert ("or prerogative instrument or any other instrument or").

The noble and learned Lord said: This is a substantial set of government amendments relating to the powers in the Bill to make subordinate legislation.

In moving Amendment No. 292FBB, I shall speak also to Amendment No. 292YGA, 292GBAA, 292GBAB, 292GBAC, 292GBAD, 292GBAE, 292GBT, 292XNA and 292YNA.

I have already placed in the Library a copy of a letter to the Chairman of the Delegated Powers and Deregulation Committee which sets out in detail the purpose and effect of these amendments. I understand that some noble Lords may have concerns that that committee has not yet had the opportunity to consider the amendments. I am happy to give an undertaking that if any Member of the Committee has any comments or concerns, we will give them full consideration and bring forward any further amendments at Report if that is required.

The Delegated Powers and Deregulation Committee reported on the Bill in its 24th report and made a recommendation in respect of powers which modify primary legislation. The Government are happy to take this recommendation on board and our amendments provide that where subordinate legislation under the Bill contains provisions that textually amend an Act it must be subject to affirmative procedure.

The powers contained in the Bill are, as the committee recognised, necessarily complex, not least because they deal with not one but two Parliaments. However, we are conscious that the operation of Clauses 101 to 103 of the Bill has not been easy to understand. We have therefore looked to simplify the provisions where possible. In particular we have provided a table which lists which of the various types of procedure applies to a particular power.

There have also been a number of changes to the subordinate legislation provisions in earlier parts of the Bill, and the amendments take account of these. There will be a few related amendments to earlier parts of the Bill, which we will bring forward at Report.

The net effect of all the amendments will be to replace the whole of Clauses 101 to 103 except for Clause 101(1) which is retained but which will then be followed by four new subsections. We are conscious that the replacement provisions are still, of necessity, somewhat complex, but we hope that they will prove easier to understand and follow.

I do not propose to describe the amendments at length, but would be happy to deal with any specific points which noble Lords may raise. I beg to move.

6.45 p.m.

Lord Mackay of Ardbrecknish

The noble and learned Lord the Lord Advocate has explained that these amendments in the Government's name significantly change that part of the Bill which deals with secondary legislation. There are a number of amendments in this group in my name but they all become nonsense because they relate to a part of the Bill which is now to be excised. Obviously I shall have to study the changes made as well as the change in the format.

I welcome the Lord Advocate's acceptance of the points made by the Delegated Powers and Deregulation Committee. I suspect that will cover some of the amendments that I have down in my name. I mentioned on Tuesday that I was not best pleased with the way this matter had been dealt with by the Government. The Government apologised for the misunderstanding. The letter to my noble friend Lord Alexander of Weedon suggested that these amendments would be tabled at Report stage. I was minded to make an enormous fuss but I have decided to be generous and allow the Government to proceed to table the amendments. We will see the result when we see the rewrite of the Bill. We can then study it perhaps with greater ease than we can at the moment and come back at Report stage with any issues that we still think need further consideration as regards secondary legislation. So I am prepared to accept these amendments at the moment. We will study them between now and Report.

Lord Renton

I am not sure whether I should make my point on the first amendment on this clause that the noble and learned Lord has moved or in the discussion on whether the clause shall stand part. We seem to be ducking discussions on clause stand part, so it might be convenient if I make the point now.

In lines five and six on page 45 we see the expression, "any pre-commencement enactment". That could have a wide meaning. It could go back to the Act of Union or possibly even earlier. I cannot believe that that is what the Government really intend. In applying their minds to the wording of Clause 96, I think that is a matter which should be thought out again. It just does not make sense at the moment.

Lord Hardie

If the Bill is passed there will be consequential amendments in respect of earlier legislation. That is what is the intention with regard to "pre-enactments". We have already indicated that all of these matters will be considered again before Report. I am sure that we can take that matter on board. Although, having said that, I do not want to hold out any false hope to the noble Lord.

Lord Renton

Perhaps the noble Lord will also bear in mind that a provision to amend existing legislation by subordinate legislation is, of course, notoriously a Henry VIII clause.

On Question, amendment agreed to.

[Amendments Nos. 292FC and 292FCA not moved]

Clause 96, as amended, agreed to.

Clause 97 [Power to adapt certain functions exercisable by a Minister of the Crown]:

[Amendment No. 292FCB had been withdrawn from the Marshalled List.]

Lord Hardie moved Amendment No. 292FCC:

Page 45, line 9, after ("provision") insert ("(including, in particular, provision modifying a function exercisable by a Minister of the Crown)").

The noble and learned Lord said: In moving Amendment No. 292FCC, I shall speak also to Amendments Nos. 292FDA, 292FDB, 292FEA, 292FF and 292FFA. Clause 97 confers the power for an Order in Council or an order made by a Minister of the Crown to make provision for enabling or facilitating the transfer of ministerial functions to the Scottish ministers, in particular by providing that certain functions can be exercised separately in or as regards Scotland or within devolved competence.

This group of amendments is intended to clarify the scope of provision that could be made under this power, in particular by making clear that existing ministerial functions can be modified for the purpose of enabling or facilitating a transfer of a function to the Scottish ministers under the Bill. The function to be transferred may not be the whole ministerial function as it exists but a part or aspect of it which is relevant to Scotland and it may need to be modified to identify and make clear the part that is to be transferred to the Scottish ministers to be separately exercisable by them as regards Scotland. Amendment No. 292FCC, which is the main amendment in the group, makes clear that such provision can be made. Amendments Nos. 292FDA, 292FDB and 292FEA make consequential drafting changes.

Amendment No. 292 FFA amends Clause 97 in two ways. First, in the new subsections (4) and (5) it provides that where the Clause 97 power is used to split a European Community or international obligation which is expressed in quantitative terms so that part of it can be transferred to the Scottish ministers, the order will not be made unless they have been consulted. Secondly, new subsection (6) will ensure that the Secretary of State's powers of intervention in Clause 54 can be used to ensure that the Scottish ministers' share of a quantitative international obligation is met.

Examples of international obligations and obligations under European Community law which will fall within the scope of these amendments are likely to include EC quotas for livestock subsidies and the United Kingdom's obligations under the Kyoto Protocol on climate change and related Community law to achieve certain targets for the reduction of greenhouse gas emissions. All parts of the UK should be required to meet a fair proportion of such obligations, not least to ensure that unfair burdens are not placed upon business in one area compared to another. Where it is possible for the Scottish ministers to contribute to the achievement of the obligation through the exercise of their powers it is obviously right that they should be apportioned a share of the obligation. An order under Clause 97 will enable that to be done. The order will be made by a Minister of the United Kingdom Government or by Her Majesty in Council on the advice of such a Minister and will be subject to procedure at Westminster only.

As Members of the Committee may be aware, the Government of Wales Bill was amended to enable the UK Government to provide by order for the achievement by the National Assembly for Wales of a share of a quantitative international or EC obligation. Clause 97, coupled with the provisions in Clauses 49 and 59 for transferring ministerial functions to the Scottish ministers, enables the same result to be delivered for Scotland. Equivalent arrangements will be made for Northern Ireland.

The UK Government will in effect have the ultimate power to determine the Scottish ministers' share of the obligation. However, the extent of the share should be a matter for consultation between the United Kingdom Government and the Scottish ministers, and the present Government regard the aim of reaching agreement as a matter of great importance. We therefore believe that it is right that there should be a statutory requirement for the Scottish ministers to be consulted and, indeed, we would expect that any government would use their best endeavours to reach agreement with them about the size of their share of an international or Community obligation.

As with international and EC obligations more generally, the Government must be in a position to ensure that the United Kingdom's commitments are met. New subsection (6), which would be introduced into Clause 97 by the amendment, has the effect that, in relation to quantitative international obligations which are split using Clause 97, the Secretary of State's powers of intervention under Clause 54 will be available, as a last resort, in relation to the Scottish share of the obligation. This means that the Secretary of State will be able to intervene to ensure that the Scottish share of a quantitative international obligation is achieved.

As Members of the Committee will recall, the Bill defines an "international obligation" as excluding an obligation under European Community law. As far as EC obligations are concerned, we believe that the procedures for their enforcement should be as effective as those arising from other international obligations. We are examining whether anything more is required to enable the UK Government to be able to ensure that the Scottish ministers implement the Scottish share of a quantitative EC obligation and we will, if it proves necessary, bring forward further amendments at Report. I beg to move.

Lord Fraser of Carmyllie

I am not surprised that the noble and learned Lord took that passage not so much at a gentle trot, but at an accelerating gallop. It is an extremely complicated set of observations with regard to these amendments and will need to be examined carefully.

From an earlier intervention, the noble and learned Lord will be aware of my concerns that, at a point of tension or hostility between the United Kingdom Government and the Scottish parliament, the UK Government may seek to use their rights to determine international obligations in a way that deprives the Scottish parliament of the opportunities to exercise its power in what would otherwise be seen as an area of devolved power.

Clearly, it is important that such a set of powers should rest in the hands of the United Kingdom Government and the Kyoto example is an obvious and a valid one. However, the only question to which I should like an answer now is this. If there is to be quota or ratio determined, as I understood the noble and learned Lord, it will be the Secretary of State who determines what the Scottish quota or ratio is to be. If that is the case and it is not the First Minister who will be involved in that decision, other than the rather loose requirement of consultation, it seems to me yet again that there is an opportunity for conflict and tension.

Lord Renton

I want to draw attention to subsection (6) set out at the end of Amendment No. 292FFA. It is unprecedented; I have never seen its like before. It is an extraordinary piece of legislation. One will need a convincing, practical explanation of the need for it before enacting the words, "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". I have never come across anything like that in my long parliamentary experience and the matter must be reconsidered. To enact something with so much uncertainty in its meaning is asking a bit much of us. I hope therefore that the noble and learned Lord will decide not to move Amendment No. 292FFA when it arises but will give an undertaking to consider it further and to give us a necessary and practical explanation of its effect.

Baroness Carnegy of Lour

Following what my noble and learned friend Lord Fraser of Carmyllie said, can the noble and learned Lord tell us whether he actually said that, if the two parliaments disagree about the share of the cost of whatever is undertaken, the Secretary of State for Scotland will arbitrate on the amount of the share? If he did say that, can he tell us why he thinks that that is the right way to proceed and why he thinks that it will work? This is important.

7 p.m.

Lord Hardie

Perhaps I may deal first with the point raised by the noble and learned Lord, Lord Fraser of Carmyllie, which was taken up by the noble Baroness, Lady Carnegy of Lour. As the noble and learned Lord appreciated, we are dealing with international obligations. We are talking about a United Kingdom function. The noble and learned Lord accepted the validity of the Kyoto example. Scotland would be required to contribute to the quota under the terms of Kyoto. In that example, the question that then arises is: what is the size of the Scottish quota? That will be a matter for negotiation between the Scottish executive and the United Kingdom Government. We regard the aim of reaching agreement about such matters as very important. The consultation requirement, which will be introduced by these amendments, will underpin that. There is a requirement to consult.

It is difficult to envisage circumstances, even if the Government in the United Kingdom were of a different political complexion from the executive in Scotland, where it would be in the interests of the United Kingdom Government to be seen to be imposing an unfair burden on Scotland. The Government of the United Kingdom obviously have responsibility for the entire United Kingdom.

The order under Clause 97 will be subject to Westminster procedures. As I have explained on government Amendment No. 292YNA, an order amending primary legislation will require affirmative resolution in both Houses of Parliament; otherwise it would be subject to the negative resolution.

We feel that there will be strong incentives for agreement on the size of the Scottish share. As I said, we expect the United Kingdom Government to use their best endeavours to achieve agreement. Ultimately, however, in the absence of such an agreement, the United Kingdom Minister would allocate the responsibilities between the different parts of the kingdom. I hope that that answers the point raised by the noble Baroness. We are referring to an international obligation which is the preserve of the United Kingdom Parliament, so it is appropriate that it should be handled by a United Kingdom Minister.

To take up the point raised by the noble Lord, Lord Renton, I appreciate that these amendments are complex. As the noble and learned Lord, Lord Fraser of Carmyllie, said, I cantered or galloped through the explanation. It is important that noble Lords should have the time to reflect on that explanation. I hope that, having done so, noble Lords will understand more clearly the thinking behind our amendments. I propose to move Amendment No. 292FFA at the appropriate time in the knowledge that once noble Lords have had the opportunity to read my remarks and to reflect upon them, they may on Report table such amendments as they think appropriate. We would give such amendments proper and full consideration, as we do with all amendments.

Lord Renton

Before the noble and learned Lord leaves that point, can he tell us whether there is a precedent for enabling subordinate legislation to modify an international obligation, as proposed here? It is not only most unusual, but unprecedented. Indeed, I should have thought that it was against our constitutional principles. If a government have entered into an international obligation, it is true that sometimes, by primary legislation and with the agreement of both Houses, we may vary it, but not by subordinate legislation.

Lord Hardie

I cannot think at present of any example. Perhaps I may reflect on that matter and write to the noble Lord about it.

On Question, amendment agreed to.

[Amendment No. 292FCD had been withdrawn from the Marshalled List.]

[Amendment No. 292FD not moved.]

Lord Hardie moved Amendments Nos. 292FDA and 292FDB:

Page 45, line 11, after ("transfer") insert ("of a function").

Page 45, line 12, leave out ("of a function exercisable by a Minister of the Crown").

On Question, amendments agreed to.

[Amendment No. 292FE had been withdrawn from the Marshalled List.]

Lord Hardie moved Amendment No. 292FEA:

Page 45, line 14, leave out ("of a Minister of the Crown").

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 292FF:

Page 45, line 21, at end insert ("or its other adaptation").

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 292FFA:

Page 45, line 21, at end insert—

("(4) No recommendation shall be made to Her Majesty in Council to make, and no Minister of the Crown shall make, subordinate legislation under this section which modifies a function of observing or implementing an obligation mentioned in subsection (5) unless the Scottish Ministers have been consulted about the modification.

(5) The obligation is an international obligation, or an obligation under Community law, to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise), where the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which includes the whole or part of Scotland).

(6) If subordinate legislation under this section modifies a function of observing or implementing such an international obligation 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 section 54 to the international obligation are to be read as references to the requirement to achieve that much of the result.").

The Deputy Chairman of Committees (Lord Skelmersdale)

The Question is, That Amendment No. 292FFA be agreed to?

Lord Renton

Not-Content.

The Deputy Chairman of Committees

The Question is, That this amendment be agreed to? As many as are of that opinion will say, "Content"; to the contrary, "Not-Content".

Noble Lords

Content.

The Deputy Chairman of Committees

The "Contents" have it.

On Question, amendment agreed to.

Clause 97, as amended, agreed to.

Clause 98 [Agreed redistribution of functions exercisable by the Scottish Ministers etc.]:

Lord Hardie moved Amendment No. 292FG:

Page 45, line 28, leave out ("a Minister of the Crown") and insert ("the member of the Scottish Executive").

The noble and learned Lord said: In moving this amendment, I should like to speak also to Amendment No. 292FH. The amendments correct an error in the wording of Clause 98(1)(c). As drafted, subsection (1)(c) merely repeats subsection (1)(c) of Clause 59. It is intended that this should be a mirror image of that provision. The words "Minister of the Crown" and "member of the Scottish Executive" in Clause 98(1)(c) should be transposed if Clause 98 is to have its proper effect. That is what the amendments seek to achieve. I beg to move.

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 292FH and 292FJ:

Page 45, line 29, leave out ("member of the Scottish Executive") and insert ("Minister of the Crown").

Page 45, line 33, leave out ("another person") and insert ("any other of those persons").

On Question, amendments agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 292FK:

Page 45, line 39, at end insert— ("() This section shall not apply to the functions exercisable by the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.").

The noble Lord said: These two small amendments, Amendments Nos. 292FK and 292FL, which stand in my name and that of my noble and learned friend, are intended to bolster the independence of the Lord Advocate in his discharge of his role of public prosecutor. That independence is already protected by Clause 27(5).

Some time ago my noble and learned friend moved an amendment to Clause 26, seeking to exclude from judicial review any decision by the Lord Advocate or the Solicitor-General to decline to answer questions. When the noble and learned Lord responds to the latter, perhaps he could also respond to these other issues if he cannot do so this evening. I look forward to hearing the noble and learned Lord's reply to these two small issues about the independence of his office. I beg to move.

Lord Fraser of Carmyllie

The noble and learned Lord the Lord Advocate will not be surprised that, as far as is possible in this legislation, I seek to entrench that independence of the position of the Lord Advocate to which my noble friend referred. Again, we want to probe here whether that will indeed be possible. While the provision to which my noble friend referred would seem to set the Lord Advocate properly apart from the Scottish executive, it seems, unless I have misunderstood the existing provision, that it would be possible for those functions presently exercisable by the Lord Advocate to be moved to any one of a number of other Ministers within the Scottish executive. As regards the system of criminal prosecution, I consider that to be wholly unacceptable.

I raised this matter at an earlier stage in relation to Clause 54. I was concerned that the Secretary of State might be able to intervene in the activities of the Lord Advocate where, in some manner, an international obligation was involved. When I consider the most important criminal prosecution that the noble and learned Lord has on his books at present, it seems to me that issues regarding international obligations may well arise. I shall not get involved in that aspect at this stage but, if possible, I should like to have some reassurance from the noble and learned Lord that by resort to this provision in the Bill the position of Lord Advocate could to all intents and purposes be abolished and a completely different approach to criminal prosecution in Scotland be adopted.

What I am about to say may not be as supportive as the noble and learned Lord would like, but I am not as concerned about the power that he currently enjoys to investigate deaths in Scotland. That would be unnecessarily restrictive if, for example, we were taking this forward in such a way that it appeared we were effectively trying to entrench his position in relation to the 1976 Act regarding fatal accidents and sudden deaths (with which the noble and learned Lord is very familiar) and, therefore, not allowing for any changes. To my mind, that is not nearly as important as the vital role that the Lord Advocate fulfils as head of the system of criminal investigation and prosecution in Scotland.

I firmly believe that that is the linchpin of the distinctive character of the Scottish criminal legal system. If that could be played with at some time in the future, I would regard that as being wholly undesirable. I hope that the noble and learned Lord will give me the same kind of assurance that my noble friend Lord Mackay seeks; namely, that the distinct position in the system of the Lord Advocate could not be played around with in the future by resort to this provision.

Lord Hardie

The position of the Lord Advocate in relation to other Scottish Ministers on the Scottish executive is of course protected. Clause 98 raises a different issue as to whether the functions can be transferred from the Lord Advocate back to Westminster. The answer to the question posed is that it does appear on the face of the Bill as drafted that that would be possible. However, in our view it is unlikely that that would be done because the role and functions of the Lord Advocate are a key part of the overall devolution settlement.

Nevertheless, in view of the points raised by Members of the Committee, I should like to reconsider the matter and decide whether any clarification is necessary. With that explanation and undertaking to give further consideration to the matter, I invite the noble Lord to withdraw the amendment.

Lord Mackay of Ardbrecknish

I am grateful to the noble and learned Lord for the assurance that he will reflect on the matter and reconsider it. These are waters in which I do not normally swim. Therefore, I am sure that the club of Lord Advocates and former Lord Advocates will be studying his words with care.

Lord Fraser of Carmyllie

I am very grateful for the noble and learned Lord's explanation. However, if he is going to reflect on the matter, perhaps he could ensure that the opportunity is allowed in the provision for the role of the Lord Advocate to return to the United Kingdom Parliament. That is a provision which I would warmly endorse.

Lord Mackay of Ardbrecknish

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 292FL not moved.]

Clause 98, as amended, agreed to.

7.15 p.m.

Lord Hardie moved Amendment No. 292G:

After Clause 98, insert the following new clause—

AGREED REDISTRIBUTION OF PROPERTY AND LIABILITIES

(".—(1) Her Majesty may by Order in Council provide—

1. (a) for the transfer to a Minister of the Crown or government department of any property belonging to the Scottish Ministers or the Lord Advocate, or
2. (b) for a Minister of the Crown or government department to have such rights or interests in relation to any property belonging to the Scottish Ministers or the Lord Advocate as Her Majesty considers appropriate (whether in connection with a transfer or otherwise).

(2) Her Majesty may by Order in Council provide for the transfer to a Minister of the Crown or government department of any liabilities to which the Scottish Ministers or the Lord Advocate are subject.

(3) An Order in Council under this section may only be made in connection with any transfer or sharing of functions of a member of the Scottish Executive by virtue of section 98 or in any other circumstances in which Her Majesty considers it appropriate to do so for the purposes of this Act.").

Lord Renton

I hope that I am not wasting time, but I have a drafting point to raise which I believe should not be ignored. The amendment refers to, property belonging to the Scottish Ministers or the Lord Advocate". Strictly speaking, that would include their private property. Moreover in subsection (2) we have reference to the, liabilities to which the Scottish Ministers or the Lord Advocate are subject". That would also include any obligation awarded by a court against them to pay damages. Surely we really must make it clear that this is a reference to public property and public liabilities. Therefore, I hope that between now and the Report stage, the noble and learned Lord will bear that in mind and get this clause tidied up in that way.

Lord Hardie

I shall certainly give consideration to that drafting matter.

On Question, amendment agreed to.

Clause 99 [Scottish taxpayers for social security purposes]:

Lord Hardie moved Amendment No. 292YGA:

Page 45, line 40, after ("individuals") insert ("of any description specified in the order").

On Question, amendment agreed to.

Clause 99, as amended, agreed to.

Clause 100 [Regulations of Tweed and Esk fisheries]:

The Deputy Chairman of Committees

Before I call Amendment No. 292ZGA, I should point out to Members of the Committee that, if it is agreed to, I shall be unable to call Amendment No. 292GA.

Baroness Ramsay of Cartvale moved Amendment No. 292ZGA:

Page 46, leave out lines 12 and 13 and insert ("or in connection with the conservation, management and exploitation of salmon, trout, eels and freshwater fish in the Border rivers.

(1A) An Order under subsection (1) may—

1. (a) exclude the application of section 49 in relation to any Border rivers function,
2. (b) confer power to make subordinate legislation.

(1B) In particular, provision may be made by such an Order—

1. (a) conferring any function on a Minister of the Crown, the Scottish Ministers or a public body in relation to the Border rivers,
2. (b) for any Border rivers function exercisable by any person to be exercisable instead by a person (or another person) mentioned in paragraph (a),
3. (c) for any Border rivers function exercisable by any person to be exercisable concurrently or jointly with, or with the agreement of or after consultation with, a person (or another person) mentioned in paragraph (a).").

The noble Baroness said: With the leave of the Committee, I should like to speak to Amendments Nos. 292GAA, 292GAB, 292GAC and 292GBA while moving this amendment. In providing for the matter of fisheries to be devolved, the Government have always recognised that special arrangements would be required in respect of the two border river systems which straddle the boundary between England and Scotland. It is universally accepted that the task of fisheries management needs to be approached on a whole-river basis. However, in doing so, anyone responsible for fisheries management for such a river system which lies both in England and Scotland would have to operate under the law of both England and Scotland. It is necessary, therefore, that the laws for regulating fisheries should be the same on both sides of the border. Our task in this Bill, therefore, is to enable both Parliaments to approve such laws, but in a way that ensures that any laws have to be agreed by both Parliaments.

If this problem were to arise between two sovereign countries, it would be customary for the legal framework for the shared river system to be agreed by treaty, which might then be given effect in the law of each country through their Parliaments. Such a legislative approach would be entirely flexible, and could deal with all aspects of fisheries, such as the setting up of cross-Border management bodies with powers to act under each legal system and by giving Ministers on each side any necessary reserve powers.

The set of amendments that the Government have proposed to Clause 100 are intended to allow much the same approach to be taken for the two border rivers between Scotland and England. In effect, we are providing for the legal framework for each of these rivers to be established by Orders in Council which would be prepared by the fisheries departments in both countries in co-operation: and for such orders to be capable of addressing the wide range of tasks of fisheries management. Such Orders in Council should also be flexible enough to offer a wide range of legal mechanisms for fisheries management—much as would be open for each Parliament if acting independently.

Amendment No. 292ZAB therefore sets out the purpose of any Order in Council in broad terms—the conservation, management or exploitation of any freshwater fish species. It provides for disapplying the normal arrangements for transferring functions under Clause 49 of the Scotland Bill, so that special arrangements can be made for the complex set of cross-Border functions that currently exist. It provides for Orders in Council to make provision for subordinate legislation, so that, for example, Ministers would have reserve powers to act by order. This amendment also clarifies that such orders may confer functions on Ministers or public bodies on either side of the Border and that such functions may be exercised in future either concurrently, jointly, or with the agreement of, or after consultation with, another Minister or public body. This should ensure that Ministers or public bodies, whether English or Scottish, are able to act with the same flexibilities as they do now in the interests of managing these fisheries.

Amendment No. 292GAA introduces certain new terms that are needed to clarify the scope of any Order in Council in amending existing fisheries enactments, and confirms that the purpose of conservation of fish can include protection of their environment.

Amendment No. 292GAB confirms that an Order in Council may amend a previous Order in Council made under the Scotland Act. Amendment No. 292GAC is a drafting amendment which is consequential on the third amendment. Finally, Amendment No. 292GBA deals with the definition of the Border river systems. It clarifies that the River Sark, which for a part of its length acts as the Border between Scotland and England, will be considered to be a tributary of the Esk for the purposes of this clause. It also enables Orders in Council to amend definitions of the Tweed and Esk, including in particular the definitions of the estuarial limit of both rivers.

Before I conclude I would like to add a brief remark following on the final point about the definitions of estuarial limits in relation to freshwater fisheries management in the Solway Firth. Under the present legal definition of the Esk, the estuarial limit is drawn so as to include all of the inner Solway Firth. There are significant salmon fisheries in that part of the Firth. And there are distinctive practices and regulations governing those salmon fisheries in England and Scotland. The relevant management bodies have drawn to our attention that significant difficulties arise for enforcement of salmon fisheries regulations as a result of the fluid nature of the boundary between England and Scotland in the Solway Firth. The boundary in the Solway Firth has, for many purposes, been taken to be the medium filum of the Esk—I am advised that is the legal phrase I have to use; it means the middle of the river—and then the combined Esk and Eden rivers at low tide. The topography of the inner Solway Firth is such that this channel can move considerably, and it is very difficult to demonstrate to the satisfaction of a court where the channel may be at any given point in time. This has been a frustration for enforcement agencies in that area, not just for many years, but for many generations.

That is why last year it was announced that the Government would investigate the option of establishing a fixed boundary in the Solway Firth. We have taken provision to establish such a boundary in Clause 112(2) of this Bill. By establishing a fixed boundary for the purposes of defining "Scotland" as that term is used in this Bill, we shall not directly alter the boundary as it may be understood in common law. We shall, however, 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 100. I believe this measure is therefore welcomed by all responsible bodies in that area. Taken together with the provisions in Clause 100 that allow a clear legal framework to be established for freshwater fisheries management in that area, I believe in time we shall see a satisfactory resolution of the outstanding issues on salmon fisheries management in the Solway Firth. I beg to move.

The Earl of Balfour

I apologise to the noble Baroness, Lady Ramsay of Cartvale, as I have not had time to study those amendments which were only laid when we resumed in October. However, I wish to raise one or two points that concern me. Section 141 of the Water Act 1989 extended the powers of the National Rivers Authority into Scotland up to the source of the River Esk in Scotland. Had that Act not extended the National Rivers Authority's functions north of the Border right into Scotland I would have complained in 1989 that the National Rivers Authority called itself "national" when it applied then only to England and Wales. That was obviously done with an eye to the catchment area for domestic water, the water we drink. There is also, of course, the matter of sewerage. While I have no objection to the Government's amendments, I am somewhat doubtful as to the actual boundary of the south-west Scotland water and sewerage authority in respect of Scotland and whether the English authority's boundary does not cross the Border in certain cases. I ask the Government to consider that.

While I admit that our wonderful river purification boards in Scotland have disappeared, we still have our Scottish environmental protection agency. I ask the Government to consider between now and Report whether there is an overlap here in respect of some of its boundaries. On the other side of Scotland almost the whole of the River Tweed is covered in particular by Chapter LXX of the 1859 River Tweed Amendment Act. I do not wish to waste the time of the Committee but I think that in addition to the fisheries aspect we need to consider the sewerage and water catchment aspects at this stage. That is rather a technical point. I shall leave it at that.

7.30 p.m.

Lord Fraser of Carmyllie

Perhaps I may say to the noble Baroness that this seems quite the most unromantic, but possibly practical, provision in the Bill. I do not want to delay matters now and I shall take the opportunity to read her remarks. However, it has long been a fascinating part of the relationship between England and Scotland that the River Esk, as it winds its way through the Solway sands, from time to time changes its course. Consequently, the question arises as to whether the particular machines used for fishing are lawful according to the law of Scotland or the law of England. There are fascinating complications in regard to whether charters were granted by James I of England or James VI of Scotland. If I understand the noble Baroness's remarks, there is to be a boring resolution of this matter, and money going to penniless advocates in Edinburgh might be reduced. As I understand it, what might follow is a set of arrangements whereby there would be a fixed line through the Solway sands that would determine who had jurisdiction in such circumstances. The noble Baroness nods so I take that to be her meaning. I still wonder whether that is an entirely practical solution. Since the River Esk shifts its course through such sands and winds from England to Scotland, perhaps I need not be too pessimistic. Perhaps there will be ample opportunity for future litigation in Edinburgh.

Lord Renton

Following my noble and learned friend's point, I ought first to confess that the only place where I foul-hooked a trout was the lower reaches of the River Solway. It was on the Scottish side of the river. I am surprised that the expression "Border rivers" should be confined to the Rivers Tweed and Esk, because the Solway is a Border river for a few miles.

The Earl of Balfour

Perhaps I may intervene with one more point. I believe that, strictly speaking, the Esk should be referred to as the South Esk, because there is the River Esk at Musselburgh.

Lord Mackay of Ardbrecknish

After 10 days, we now come to a matter of real importance. After many hours of what I would call high-level law we come to a matter that I understand—fishing. Like my noble and learned friend Lord Fraser of Carmyllie I have to say that understanding the law of fishing on the Solway boundaries is not easy. I shall turn to that presently.

When the Bill first appeared, I tabled a probing amendment. It is fair to say that the amendments moved today by the noble Baroness go a long way to satisfy the people who are interested and involved in matters concerning the Esk and the Solway in general.

Salmon and sea trout legislation north and south of the Border is very different. The organisations governing the river systems in both countries are different. As my noble friend Lord Balfour mentioned, the Tweed is catered for by special legislation. It covers the whole of the Tweed. Tweed fishing is not governed by Scottish legislation or English legislation; it is governed by its own legislation. However, that is not true of the rivers on the other side of the country which flow into the Solway. Sometimes they are in England; sometimes they are in Scotland; and sometimes one bank is in one country and the other bank is in the other. The Esk is the classic example.

That causes problems. For example, in Scotland fishing for salmon and sea trout on a Sunday is illegal, but that is not so in England. Looking at the river as a whole, the question therefore arises: can I fish it on a Sunday or not? Personally, I should never consider fishing a river on a Sunday for salmon or sea trout. But the question is: would someone be able to? Equally, in Scotland there are no rod licences, whereas there are in England. What would be the position in regard to rod licences on the Esk? Would it be considered to be English so far as rod licences are concerned and would one need a rod licence? These are difficult matters and I do not intend to probe too much. So far as I understand matters from my contacts, those who are involved in that part of the world, the amendments that are now proposed by the Government very much meet their approval. Indeed, I received a letter from my noble friend Lord De Ramsey, who is chairman of the Environment Agency, which is involved in the management of fisheries. The letter makes it clear that, the Agency's view is that the Government's amendments would make it possible via secondary legislation to manage the Esk fishery on a catchment basis … [and] solve the lack of a regulatory body for most of the River Sark which joins the Esk at Gretna and also provide more effective regulation of the Solway". So I am reasonably satisfied.

My noble friend Lord Monro of Langholm has unfortunately had to travel north for an appointment tomorrow morning. He has long had an interest in this matter since his previous constituency bordered, and included in some places, the River Esk. He, too, wonders about the question of rod licences. My noble friend fought off various attempts to impose rod licences on the whole of the River Esk. Having left the field of battle in the other place, I think he hopes that rod licences will not be imposed on the River Esk. Perhaps the noble Baroness can help me on this point, either now or by letter.

There is a problem with the Solway itself. As the noble Baroness said—and my noble and learned friend Lord Fraser of Carmyllie amplified the point—the problem in the Solway is that the boundary can change as the river changes between the sandbanks. Ownership may not change. Therefore, an owner living in England may well find himself owning land, or rather sandbanks, which has moved into Scotland. Fishery legislation being different on either side of the Border, there is a huge problem in relation to the half-net fishery on one side and the ordinary fishery on the other. If you are caught on the wrong side, you just say, "Please, guv, I was fishing on the other side of the boundary. I wasn't fishing on the Scottish (or English) side", depending on which side you are fishing legally and where you are trying to fish illegally. It is a well-known fact that, so long as you have a permit somewhere to fish for salmon or sea trout you can move freely around and then plead that that is where you caught the salmon or sea trout if you are challenged when you come ashore. I assure your Lordships that the Solway is open to that.

If I heard the noble Baroness aright and she believes that all these matters can be resolved easily, I agree with my noble and learned friend Lord Fraser of Carmyllie. I am prepared to take bets on the fact that it will not be resolved easily. Indeed, it may never be resolved, because there are some people who think it is quite a good thing to have that rather moveable feast in the middle of the Solway.

Those who are interested in this matter will study the noble Baroness's words carefully. I assure her that, on the face of the amendments, those who are involved in the Esk fishery feel that the amendments meet their original concerns. I thank the noble Baroness for that.

Viscount Thurso

We on these Benches welcome the amendments. The noble Lord, Lord Mackay of Ardbrecknish, made the case for them. I recall that at Second Reading the noble Lord, Lord Nickson, who was chairman of the Scottish Salmon Strategy Task Force, thanked the noble Lord, Lord Sewel, for having included them, as that was one of the task force's recommendations. We very much welcome the amendments.

Baroness Ramsay of Cartvale

I thank the noble Viscount for welcoming the amendments. The noble Earl, Lord Balfour, and I have discussed the Tweed and the Esk previously during the Bill's passage. I undertake to write to the noble Earl about the important issues he raised in relation to sewerage and other matters.

I am sorry that the noble and learned Lord, Lord Fraser of Carmyllie, found my presentation of the subject unromantic. I should certainly not like to be thought of as stealing business from the legal fraternity. I am sure, as the noble Lord, Lord Mackay, said, that will not be the case. There is probably still a great deal of material to provide the wherewithal for their livelihood.

I will write to the noble Lord, Lord Renton, about his point regarding the south Solway. I do not have an answer now but I will clarify the point.

I will write also to the noble Lord, Lord Mackay of Ardbrecknish—whose knowledge of fishing is indubitably much greater than mine, and indeed many Members of this place—about rod licences, and also on the question of the Solway. I am grateful to the noble Lord for his positive remarks about the amendments.

On Question, amendment agreed to.

[Amendment No. 292GA not moved.]

Lord Sewel moved Amendments Nos. 292GAA to 292GAC:

Page 46, line 14, at end insert— (""the Border rivers" means the Rivers Tweed and Esk, Border rivers function" means a function conferred by any enactment, so far as exercisable in relation to the Border rivers, conservation", in relation to salmon, trout, eels and freshwater fish, includes the protection of their environment,").

Page 46, line 16, at end insert— (""enactment" includes one made under this Act,").

Page 46, line 17, leave out ("that Act") and insert ("the Salmon and Freshwater Fisheries Act 1975").

On Question, amendments agreed to.

[Amendment No. 292GB not moved.]

Baroness Ramsay of Cartvale moved Amendment No. 292GBA:

Page 46, line 19, leave out from ("Scotland") to end of line 20 and insert ("including—

1. (a) its tributary streams (which for this purpose include the River Sark and its tributary streams), and
2. (b) such waters on the landward side of its estuary limits as are determined by an Order under subsection (1),

together with its banks;

and references to the Border rivers include any part of the Border rivers.

() An Order under subsection (1) may modify the definitions in subsection (2) of the River Tweed and the River Esk.").

On Question, amendment agreed to.

Clause 100, as amended, agreed to.

Clause 101 [Subordinate legislation: general]:

Baroness Ramsay of Cartvale moved Amendments Nos. 292GBAA to 292GBAC:

Page 46, line 24, at beginning insert—

("(A1) Any power to make subordinate legislation conferred by this Act shall, if no other provision is made as to the person by whom the power is exercisable, be exercisable by Her Majesty by Order in Council or by a Minister of the Crown by order.

(B1) But the power to make subordinate legislation under section 115(3) providing—

1. (a) for the appropriation of sums forming part of the Scottish Consolidated Fund, or
2. (b) for sums received by any person to be appropriated in aid of sums appropriated as mentioned in paragraph (a),

shall be exercisable only by Her Majesty by Order in Council.

(C1) References in this Act to an open power are to a power to which subsection (A 1) applies (and include a power to make subordinate legislation under section 115(3) whether or not the legislation makes provision as mentioned in subsection (B1)).

(D1) An Order in Council under an open power may revoke, amend or re-enact an order, as well as an Order in Council, under the power; and an order under an open power may revoke, amend or re-enact an Order in Council, as well as an order, under the power.").

Page 46. line 27, leave out subsections (2) to (4).

Page 47, line 1, leave out subsections (6) to (12).

On Question, amendments agreed to.

Clause 101, as amended, agreed to.

Lord Hardie moved Amendment No. 292GBAD:

After Clause 101, insert the following new clause—

SUBORDINATE LEGISLATION: SCOPE OF POWERS

(".—(1) References in this section to a power are to an open power and to any other power to make subordinate legislation conferred by this Act which is exercisable by Her Majesty in Council or by a Minister of the Crown, and include a power as extended by this section.

(2) A power may be exercised so as to make different provision for different purposes.

(3) A power (as well as being exercisable in relation to all cases to which it extends) may be exercised in relation to—

1. (a) those cases subject to specified exceptions, or
2. (b) any particular case or class of case.

(4) A power includes power to make—

1. (a) any supplementary, incidental or consequential provision, and
2. (b) any transitory, transitional or saving provision,

which the person making the legislation considers necessary or expedient.

(5) A power may be exercised by modifying—

1. (a) any enactment or prerogative instrument,
2. (b) any other instrument or document,

if the subordinate legislation (or a statutory instrument containing it) would be subject to any of the types of procedure referred to in Schedule (Procedure for subordinate legislation).

(6) A power may be exercised so as to make provision for the delegation of functions.

(7) A power includes power to make provision for sums to be payable out of the Scottish Consolidated Fund or charged on the Fund.

(8) A power includes power to make provision for the payment of sums out of money provided by Parliament or for sums to be charged on and paid out of the Consolidated Fund.

(9) A power may not be exercised so as to create any criminal offence punishable—

1. (a) on summary conviction, with imprisonment for a period exceeding three months or with a fine exceeding the amount specified as level 5 on the standard scale,
2. (b) on conviction on indictment, with a period of imprisonment exceeding two years.

(10) The fact that a power is conferred does not prejudice the extent of any other power.").

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 292GBAE:

After Clause 101, insert the following new clause—

SUBORDINATE LEGISLATION: PARTICULAR PROVISIONS

(".—(1) A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised by modifying any enactment comprised in or made under this Act (except Schedules 4 and 5): sections 84, 92, 95, 98, and 115(3).

(2) The reference in subsection (1) to a power to make subordinate legislation includes a power as extended by section (Subordinate legislation: scope of powers).

(3) A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised so as to make provision having retrospective effect: sections 29, 54(4), 92 and 95.").

On Question, amendment agreed to.

Clause 102 [Subordinate legislation: procedure]:

[Amendments Nos. 292GBAF to 292GBS not moved.]

Lord Hardie moved Amendment No. 292GBT:

Leave out Clause 102 and insert the following new clause—

SUBORDINATE LEGISLATION: PROCEDURE

(".—(1) Schedule (Procedure for subordinate legislation) (which determines the procedure which is to apply to subordinate legislation under this Act in relation to each House of Parliament and the Scottish Parliament) shall have effect.

(2) In spite of the fact that that Schedule provides for subordinate legislation under a particular provision of this Act (or the statutory instrument containing it) to be subject to any type of procedure in relation to the Parliament, the provision conferring the power to make that legislation may be brought into force at any time after the passing of this Act.

(3) Accordingly, any subordinate legislation (or the statutory instrument containing it) made in the exercise of the power in the period beginning with that time and ending immediately before the principal appointed day is to be subject to such other type of procedure (if any) as may be specified in subordinate legislation made under section 115(3).").

On Question, amendment agreed to.

Clause 103 [Subordinate legislation: supplementary]:

On Question, Whether Clause 103 shall stand part of the Bill?

Lord Hardie

As I explained, this clause has been replaced as a result of amendments.

Clause 103 negatived.

Lord Selkirk of Douglas moved Amendment No. 292GC

After Clause 103, insert the following new clause—

SUBORDINATE LEGISLATION: FIRE SAFETY

(" . In making subordinate legislation in relation to fire safety, the Parliament shall have regard to fire safety legislation in England and Wales.").

The noble Lord said: I can speak very briefly to this amendment which concerns harmonisation in relation to fire safety. Building in Scotland is not identical to that in England, and in the north far more buildings are constructed with timber frames. There has been a substantial debate about the making safe of windows because, sadly, in the past some young children have fallen to their deaths. If windows are not capable of being opened, fatalities can arise if there is a serious fire. It is a question of getting the right balance to make sure that windows are secure so that children cannot fall and that occupants can escape in the event of a serious fire.

I believe that in this area there is a strong case for safety legislation on fire to be in harmony north and south of the Border. Apart from anything else, there can be an emergency near to one side of the Border which might require fire engines from both sides to participate. This does not mean that the safety legislation needs to be identical, but it should be in harmony on a subject of such importance.

When the noble Lord, Lord Sewel, answered the debate initiated by the noble Lord, Lord Howie of Troon, on 15th June this year, he said: The process of harmonisation of the building standards of England. Wales and Northern Ireland is a joint process. In a way it is intended to the extent that harmonisation is attractive. It is intended that the best aspects of each set of regulations are retained … harmonisation is very much a two-way process … there may well be a case here for harmonisation to be towards the Scottish practice rather than in the other direction".—[Official Report, 15/6/98; col. 1393.] Whether or not the Minister was correct in that connection, it seems that, as a matter of principle, harmonisation is necessary in the interests of saving lives. I beg to move.

7.45 p.m.

Baroness Ramsay of Cartvale

I understand the concerns behind the amendment, but we are confident that the amendment is unnecessary. We made clear in the White Paper our intention to devolve general fire safety, and that remains our intent. At present, such legislation is essentially the same across Britain, but it differs to a degree where there is a need to relate general fire safety provisions to separate Scottish legislation on, for example, building control or houses in multiple occupation. Because of this similarity, it is only reasonable to expect that the Scottish parliament will have regard to what is happening south of the Border if and when it considers making changes to legislation relating to general fire safety.

For the most part, with regard to general fire safety, there can be no specifically and specially Scottish circumstances or considerations, and that is why both the legislation and the consultation documents on possible changes to it have hitherto been on a Great Britain basis. There is also an existing structure of Great Britain committees and working groups which covers all fire service matters, including general fire safety. We have every reason to suppose that those will continue after devolution.

Even after devolution any new legislative proposals are likely to be on a common basis, north and south of the Border. We should not forget that for some aspects of general fire safety the Scottish parliament will have to adhere to the terms of European Union directives in the same way as Westminster does. Similarly, if the noble Lord has concerns about fire safety references in building control legislation, he may wish to note that the Government envisage that the existing network of contacts and working groups across the Border will continue in this field.

Taking all these considerations together, we feel that there is no need formally to require the parliament to have regard to legislation in England and Wales. However, as I hope I have explained, the Government envisage that the new parliament will do that and that it is most unlikely to diverge from the position in England and Wales unless there are very sound reasons to do so. In the light of all that, I hope that the noble Lord will be able to withdraw his amendment.

Lord Selkirk of Douglas

I am grateful to the Minister for her assurances. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 [Transfer of property: supplementary]:

Lord Hardie moved Amendments Nos. 292H to 292N:

Page 49, line 9, leave out (", 60").

Page 49, line 9, leave out ("or 85") and insert (", 85 or (Agreed redistribution of property and liabilities)").

Page 49, line 13, leave out ("under the") and insert ("by virtue of such").

Page 49, line 15, leave out ("the") and insert ("such").

Page 49, line 17, leave out ("by or under the") and insert ("by virtue of such").

Page 49, line 47, at end insert—

("() A certificate issued by the Secretary of State that any property or liability has, or has not, been transferred by virtue of subordinate legislation under section 56 or 58 or paragraph 2 of Schedule 2 shall be conclusive evidence of the transfer or (as the case may be) the fact that there has not been a transfer.

() A certificate issued by the Secretary of State and the Scottish Ministers that any property or liability has, or has not, been transferred by virtue of an Order in Council under section 85 or (Agreed redistribution of property and liabilities) shall be conclusive evidence of the transfer or (as the case may be) the fact that there has not been a transfer.").

On Question, amendments agreed to.

Clause 104, as amended, agreed to.

Clause 105 [Ministers of the Crown]:

Baroness Ramsay of Cartvale moved Amendment No. 292HNA.

Page 50, line 5, after ("exercise") insert ("of a function").

The noble Baroness said: In moving Amendment No. 292HNA, I shall speak also to Amendments Nos. 292JNA, 292KNA and 292LNA. This is a set of technical amendments designed to clarify the operation of Clauses 105, 106 and 107, which deal with general modifications of enactments.

Clause 105 provides for references to a Minister of the Crown in various forms of legislation to be read in appropriate cases as being or including a reference to the Scottish ministers. At present this will apply where functions are exercisable by a member of the Scottish executive by virtue of Clause 49. Amendments Nos. 292HNA and 292JNA adapt this so that the clause applies where a member of the Scottish executive exercises functions within devolved competence, aligning it with the wording now used elsewhere in the Bill. Amendment No. 292KNA alters the description of the legislation to which the clause applies to make it clear that it applies to documents which may, in terms of particular legislation, be termed "instruments". Amendment No. 292LNA ensures that references to Ministers of the Crown are caught however they may be described in particular legislation.

I turn to Amendments Nos. 292MNA and 292SNA. Clause 106 translates provisions in pre-commencement enactments so that subordinate legislation is laid before the Scottish parliament instead of this Parliament in appropriate cases. Amendments Nos. 292MNA and 292NNA in Clause 106 similarly link the operation of that clause to the concept of devolved competence rather than depend on the transfer of the functions through Clause 49.

Amendment No. 292PNA clarifies the application of the clause where the function of making the subordinate legislation is exercisable by a person other than a Minister of the Crown, such as Her Majesty, the Registrar General or the courts.

Amendments Nos. 292UNA to 292WNA divide Clause 107 into two clauses by separating subsection (8) which deals with accounts and audits from the remainder of the clause which deals with payments into and out of the Consolidated Fund. A consequential amendment is made to Clause 108. The amendments are purely presentational and have no substantial effect. I beg to move.

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 292JNA to 292LNA:

Page 50, line 5, leave out from ("Executive") to ("any") in line 6 and insert ("within devolved competence").

Page 50, line 6, leave out from ("enactment") to ("document") in line 7 and insert ("or prerogative instrument, and any other instrument or").

Page 50, line 8, after ("Crown") insert ("(however described)").

On Question, amendments agreed to.

Clause 105, as amended, agreed to.

Clause 106 [Subordinate instruments]:

Lord Hardie moved Amendments Nos. 292MNA to 292SNA:

Page 50, line 10, leave out ("by virtue of section 49") and insert ("within devolved competence").

Page 50, line 20, leave out ("virtue of section 49") and insert ("a member of the Scottish Executive within devolved competence").

Page 50, line 22, leave out subsection (3) and insert—("(3) Where—

1. (a) a function of making, confirming or approving subordinate legislation conferred by a pre-commencement enactment is exercisable by a Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 applies, and
2. (b) a pre-commencement enactment makes such provision in relation to the exercise of the function as is mentioned in subsection (2),

the provision shall have effect, so far as it relates to the exercise of the function by that authority, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.

(3A) Where—

1. (a) a function of making, confirming or approving subordinate legislation conferred by a pre-commencement enactment is exercisable within devolved competence by a person other than a Minister of the Crown, a member of the Scottish Executive or a Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 applies, and
2. (b) a pre-commencement enactment makes such provision in relation to the exercise of the function as is mentioned in subsection (2),

the provision shall have effect, so far as it relates to the exercise of the function by that person within devolved competence, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.").

Page 50, line 27, after ("(3)") insert ("or (3A)").

Page 50, line 28, leave out from ("as") to ("as") in line 29 and insert ("the function is exercisable as mentioned in paragraph (a) of subsection (3) or, as the case may be, (3A)").

Page 50, line 31, leave out subsection (5).

On Question, amendments agreed to.

Clause 106, as amended, agreed to.

Clause 107 [Consolidated Fund, etc.]:

Lord Hardie moved Amendments Nos. 292TNA and 292UNA:

Page 50, line 33, leave out subsection (1) and insert—

("(1) In this section "Scottish functions" means—

1. (a) functions of the Scottish Ministers, the First Minister or the Lord Advocate which are exercisable within devolved competence,
2. (b) functions of any Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 applies.").

Page 51, line 37, after ("functions") insert ("(within the meaning of subsections (1) to (7))").

On Question, amendments agreed to.

Clause 107, as amended, agreed to.

Lord Hardie moved Amendment No. 292VNA:

Divide Clause 107 into two Clauses, the first (Consolidated Fund, etc.) to consist of subsections (1) to (7) and the second (Accounts and audit) to consist of subsection (8).

On Question, amendment agreed to.

Clause 108 [Requirements to lay reports etc. before Parliament]:

Lord Hardie moved Amendment No. 292WNA:

Page 52, line 5, leave out ("107") and insert ("(Consolidated Fund. etc.)").

On Question, amendment agreed to.

Clause 108, as amended, agreed to.

Clause 109 agreed to.

Clause 110 [Stamp duty]:

On Question, Whether Clause 110 shall stand part of the Bill?

Lord Fraser of Carmyllie

The Committee has formally agreed that a large number of amendments should be made to the Bill without any intervention. The Government will appreciate that some of them are, or potentially may be, extremely complicated. Without something like a Keeling schedule it is extremely difficult to work out exactly what they amount to. Without suggesting that we will make difficulties about them, I simply place on record that we want an opportunity to see them in their context and may return to some of them at Report stage.

Lord Renton

Earlier I suggested that the Lord Advocate was a Minster of the Crown. Clause 110 makes it clear that he is a Minister of the Crown although I was told at the time that he would no longer be.

Lord Hardie

The very fact that the Lord Advocate has ceased to be a Minister of the Crown requires Clause 110 to give him exemption from stamp duty. Therefore, I am added back in for the purpose of exemption from stamp duty. I am sure that the noble Lord would not wish me to pay stamp duty unnecessarily.

Clause 110 agreed to.

Lord Hardie moved Amendment No. 292XNA:

After Clause 110, insert the following new clause—

MODIFICATION OF SECTIONS 105 TO 109

(".—(1) Subordinate legislation may provide for any provision of sections 105 to 109 not to apply, or to apply with modifications, in such cases as the person making the legislation considers appropriate.

(2) Subordinate legislation made by Her Majesty in Council or a Minister of the Crown under this Act may, in connection with any other provision made by the legislation, also provide for any provision of sections 105 to 109 not to apply, or to apply with modifications.").

On Question, amendment agreed to.

Clause 111 agreed to.

Lord Hardie moved Amendment No. 292YNA:

Before Schedule 7 insert the following new schedule—

("SCHEDULE

PROCEDURE FOR SUBORDINATE LEGISLATION

General provision

1.—(1) Subordinate legislation (or a statutory instrument containing it) under a provision listed in the left-hand column is subject to the type of procedure in the right-hand column.

(2) This paragraph is subject to paragraphs 3 and 4.

Provision of the Act	Type of procedure
Section 2(1)	Type C
Section 11(1)	Type C
Section 14	Type D
Section 17(5)	Type J

Section 29	Type A
Section 33	Type I
Section 36	Type J
Section 54	Type I
Section 56	Type G
Section 58	Type G
Section 59	Type A
Section 61(5)	Type K
Section 64(3)	Type E
Section 75	Type E
Section 83	Type I
Section 84	Type F
Section 85	Type F
Section 92	Type G
Section 94(3)(a) and (b)	Type I
Section 95	Type G
Section 96	Type G
Section 97	Type G
Section 98	Type A
Section (Agreed redistribution of property and liabilities)	Type H
Section 99(1)	Type C
Section 99(2)	Type I
Section 100	Type A
Section 104(9)	Type G
Section (Modification of sections 105 to 109)(1)	Type G
Section 112(2)	Type B
Section 112(7)	Type H
Section 115(3)	Type G
Schedule 2, paragraph 2	Type G
Schedule 2, paragraph 7	Type H

Notes

The entry for section 54 does not apply to an instrument containing an order merely revoking an order under subsection (1) of that section.

The entry for section 75, in relation to an instrument containing an order which makes only such provision as is mentioned in section 75(3), is to be read as referring to type K instead of type E.

Types of procedure

2. The types of procedure referred to in this Schedule are—

Type A: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument—

1. (a) has been laid before, and approved by resolution of, each House of Parliament, and
2. (b) has been laid before, and approved by resolution of, the Parliament.

Type B: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

Type C: No Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

Type D: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

Type E: No Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, the House of Commons.

Type F: The instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament and of the Parliament, shall be subject to annulment in pursuance of—

1. (a) a resolution of either House, or
2. (b) a resolution of the Parliament.

Type G: 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.

Type H: The instrument containing the legislation shall be subject to annulment in pursuance of—

1. (a) a resolution of either House of Parliament, or
2. (h) a resolution of the Parliament.

Type I: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Type J: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the Parliament.

Type K: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the House of Commons.

Special cases

3.—(l) This paragraph applies if—

1. (a) the instrument containing the legislation would, apart from this paragraph, be subject to the type F, G, H, I or K procedure, and
2. (b) the legislation contains provisions which add to, replace or omit any part of the text of an Act (including this Act).

(2) Where this paragraph applies—

1. (a) instead of the type F procedure, the type A procedure shall apply,
2. (b) instead of the type G procedure, the type B or (as the case may be) C procedure shall apply,
3. (c) instead of the type H procedure, the type A procedure shall apply,
4. (d) instead of the type I procedure, the type B or (as the case may be) C procedure shall apply,
5. (e) instead of the type K procedure, the type E procedure shall apply.

4. If legislation under section 115(3) makes provision as mentioned in section 101(B1) then, instead of the type G procedure, the type D procedure shall apply.

5.—(1) An instrument containing an Order in Council or order under an open power which revokes, amends or re-enacts subordinate legislation under an open power may (in spite of section 14 of the Interpretation Act 1978) be subject to a different procedure under this Schedule from the procedure to which the instrument containing the original legislation was subject.

(2) An instrument containing an Order in Council under section 84 or 85 which revokes, amends or re-enacts an Order under either section may (in spite of section 14 of the Interpretation Act 1978) be subject to a different procedure under this Schedule from the procedure to which the instrument containing the original Order was subject.").

On Question, amendment agreed to.

Schedule 7 [Modifications of enactments]:

Lord Hardie moved Amendment No. 292ZNA:

Page 90, line 12, at end insert— ("() In section 38(2) (interpretation)—

1. (a) in the definition of "His Majesty's aircraft", after "Kingdom" there is inserted "or the Scottish Administration",
2. (b) in the definition of "His Majesty's ships", after "Kingdom" there is inserted "or the Scottish Administration" and after "said Government" there is inserted "or Administration". and
3. (c) in the definition of "officer", after "Minister of the Crown" there is inserted "and a member of the Scottish Executive".

() In section 40 (savings)—

1. (a) in subsection (2), after "in the United Kingdom", in each place where those words occur, there is inserted "or the Scottish Administration", and
2. (b) after subsection (3) there is inserted—"

"(3A) A certificate of the Scottish Ministers to the effect that—

1. (a) any alleged liability of the Crown arises otherwise than in respect of the Scottish Administration,
2. (b) any proceedings by the Crown are proceedings otherwise than in right of the Scottish Administration,

shall, for the purposes of this Act, he conclusive as to that matter."").

The noble and learned Lord said: In moving Amendment No. 292ZNA I should like to speak also to Amendment No. 292NB. Amendment No. 292ZNA makes certain amendments to the Crown Proceedings Act 1947 which are consequential on the creation of the Scottish administration. The first part of the amendment deals with the interpretation provisions in Section 38(2). It ensures that the definition of Her Majesty's ships and aircraft covers those ships and aircraft which may belong to Her Majesty in right of the Scottish administration as well as in right of the UK Government. It also provides that a member of the Scottish executive is an officer in relation to the Crown for the purposes of the Act which puts him in the same position as a Minister of the Crown in the UK Government.

The second part of the amendment deals with Section 40 and ensures that it applies Crown liabilities and proceedings in respect of the Scottish administration in the same way that it applies to such liabilities and proceedings in respect of the UK Government. The final part of the amendment ensures that Scottish ministers can certify that liabilities of the Crown or proceedings against the Crown are otherwise in the right of the Scottish administration. This ensures that they can make similar provision to the Secretary of State who can certify in respect of Her Majesty's Government.

Amendment No. 292NB amends Section 46 of the Civil Jurisdiction and Judgments Act 1982 which makes provisions about the domicile and seat of the Crown for civil jurisdiction purposes. Amendment No. 292NB provides that the Crown in right of the Scottish administration has its seat in, and in every place in, Scotland and makes a consequential amendment to subsection (7) adding a reference to the Scottish administration.

The Government consider it necessary that these amendments should be made on the face of the Bill rather than under clause 96 because they make clear the status which we intend the Scottish administration should have: a part of the Crown separate and distinct from the UK Government, in effect Her Majesty's Government in Scotland in relation to devolved matters. I ask noble Lords to support these amendments. I beg to move.

Lord Mackay of Ardbrecknish

While I am somewhat reluctant to halt this headlong dash for the tape as far as concerns the Committee stage of the Bill, I am intrigued by the idea that some of Her Majesty's ships and aircrafts may be in the ownership of the Scottish administration. I was under the impression that defence was not a delegated power but was reserved. Perhaps the noble and learned Lord will tell me which ships and aircraft will be in the ownership of the Scottish administration, and who will be the admiral of the fleet.

8 p.m.

Lord Hardie

In answer to the noble Lord's second question, perhaps he would be interested in applying. In answer to his first question, the provision relates to the defence not of the realm but of fish—a subject close to the noble Lord's heart. The fishery protection fleet is in part owned by the Scottish administration.

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 292NA and 292NB:

Page 91, line 26, leave out ("38A") and insert ("38AB").

Page 92, line 19, at end insert—

("Civil Jurisdiction and Judgments Act 1982 (c.27)

.—(1) Section 46 of the Civil Jurisdiction and Judgments Act 1982 (domicile and seat of the Crown) is amended as follows.

(2) In subsection (3), after paragraph (a) there is inserted— (aa) the Crown in right of the Scottish Administration has its seat in, and in every place in, Scotland,".

(3) In subsection (7), after "Kingdom" there is inserted ", the Scottish Administration".").

On Question, amendments agreed to.

Baroness Ramsay of Cartvale moved Amendment No. 292NBA:

Page 92, line 34, at end insert—

("Tourism (Overseas Promotion) (Scotland) Act 1984 (c.4)

. In section 1 of the Tourism (Overseas Promotion) (Scotland) Act 1984 (power of Scottish Tourist Board to promote tourism in Scotland outside UK), subsection (2) is omitted.").

The noble Baroness said: Amendments Nos. 292NBA and 292QC are consequential on the devolution of the subject of tourism. They remove the requirement for the Scottish Tourist Board to obtain the approval of Ministers, following consultation with the British Tourist Authority, for its overseas marketing activities.

Both the Scottish Tourist Board and the British Tourist Authority have the power to market Scotland overseas. This will continue. Following devolution, however, the STB overseas marketing activity will no longer be, as it is now, secondary to that of the BTA. Overseas marketing will simply be one of a number of activities which STB undertake and for which they will be accountable to the Scottish Ministers and through them to the Scottish Parliament. In these circumstances, the Government believe that a requirement to consult with the BTA would be inappropriate. We also believe that it is unnecessary to require the board to obtain the consent of Scottish Ministers. They will not be required by statute to obtain such consent for any other activity. I beg to move.

Viscount Thurso

Perhaps I may seek clarification from the noble Baroness. Am I right to assume that tourism is a wholly devolved matter and that there is no requirement for the Scottish tourist minister (if such a person will exist in the executive) to have any connection with the BTA if Scotland chooses not to have that connection?

Baroness Ramsay of Cartvale

I think that the answer to that question is yes. If it is not, I shall write to the noble Viscount.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 292NC:

Page 94, line 3, at end insert—

("Official Secrets Act 1989 (c.6)

.—(1) Section 12 of the Official Secrets Act 1989 (meaning of "Crown servant" and "government contractor" for the purposes of that Act) is amended as follows.

(2) In subsection (1), after paragraph (a) there is inserted— (aa) a member of the Scottish Executive or a junior Scottish Minister;".

(3) In subsection (2)(a), after "above," there is inserted "of any office-holder in the Scottish Administration,".

(4) After subsection (3), there is inserted— (3A) In this section "office-holder in the Scottish Administration" has the same meaning as in section 112(6)(a) of the Scotland Act 1998.".").

The noble and learned Lord said: This government amendment provides that members of the Scottish executive and junior Scottish Ministers are Crown servants for the purposes of the Official Secrets Act 1989. It ensures that they are subject to the offences created by the Act and that they are able to receive and, if necessary, disclose information covered by the 1989 Act. It will put them in the same position as Ministers in the UK Government. It will also put them in the same position as their staff, who will of course be civil servants and, as such, Crown servants without the need for any amendment.

The 1989 Act also makes provision about disclosures by government contractors—that is, essentially, those people who are not civil servants but who provide goods or services for the purposes of ministers, the civil service, the police and the military. Amendment No. 291NC provides that people providing goods and services for the purpose of any office-holder in the Scottish administration will also be government contractors for these purposes.

The amendment makes the correct provision. It is necessary for the Scottish Ministers to be able to carry out their duties to the full and for there to be no anomalies in the position of Ministers as against their civil servants in respect of access to information and I would urge the Committee to support it. We consider that the amendment tabled by the noble Lord, Lord Mackay, about the Official Secrets Act is flawed in a number of ways, and I invite him to withdraw it. I beg to move.

Lord Mackay of Ardbrecknish

I am grateful to the noble and learned Lord for his explanation. I do not know whether or not Amendment No. 292ND is defective. It addresses the same problem. We are glad to see that the Government have taken the matter on board and have put forward their own amendment. I accept that it is properly drafted, but one never knows.

On Question, amendment agreed to.

[Amendment No. 292ND not moved.]

Lord Hardie moved Amendment No. 292NE:

Page 94. line 39, leave out from beginning to ("there") and insert— (".() The Criminal Procedure (Scotland) Act 1995 is amended as follows. () After section 288").

The noble and learned Lord said: In moving the amendment, I speak also to Amendment No. 292QA. These amendments are intended to ensure that the High Court of Justiciary has appropriate powers to give effect to a decision by the Judicial Committee on an appeal from the High Court on a devolution issue.

The role of the Judicial Committee will be to make a determination on the issue. Having done so, it will inform the High Court of its decision. It will then be for the High Court to implement the determination in the circumstances of the particular case and for this purpose it will have all the powers it has when sitting as an appeal court.

While the High Court will have to give effect to the Judicial Committee's decision, it will have to consider what the implications of this are for the case, and whether a conviction should be affirmed, quashed or amended, or authority for a new prosecution granted. In some cases, it may be necessary to quash the conviction. In others, a number of charges may be involved. In these cases the sentence may also require to be reviewed as well. The point is that it will be for the High Court to decide what is appropriate.

The amendments also make it clear, however, that any earlier acquittal or quashing of a conviction in the proceedings will not be affected by any determination of an appeal by the Judicial Committee.

Further amendments to the Criminal Procedure (Scotland) Act 1995 will be made by an order under Clause 96, a working draft of which has already been placed in the Library. I beg to move.

On Question, amendment agreed to.

Viscount Thurso moved Amendment No. 292P:

Page 95, line 18, after ("counsel") insert ("or by a solicitor").

The noble Viscount said: With the leave of the Committee, I should like to move the amendment in the name of my noble friend Lord Mar and Kellie. My speech will necessarily be brief because until my noble friend had to catch a flight I did not have the slightest knowledge or understanding of the amendment. I therefore ask the Committee's indulgence. The amendment also concerns lawyers, so I am out of my depth in a major way.

The amendment seeks to insert the words "or by a solicitor" after the words "counsel" at line 18 on page 95. It is an entirely probing amendment and boils down to a simple question. I understand that it comes from the Law Society of Scotland. The simple question is to discover whether in the Bill, and in the Act when it is enacted, the word "counsel" will include or exclude solicitor advocates.

I understand that, in the Criminal Procedure (Scotland) Act 1995, the Criminal Legal Aid (Scotland) Regulations 1996 and the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, it states specifically under "Interpretation" that counsel includes a solicitor advocate. However, the Code of Conduct (Scotland) Rules 1992 for solicitors appears to separate the two. Therefore there may be some misunderstanding. Effectively the Law Society of Scotland would like to know whether solicitor advocates are included in Schedule 7 and will have the right to plead in court. My instructions are that if I receive any confirmation, I can withdraw the amendment with grace. I beg to move.

Lord Selkirk of Douglas

I support the noble Lord's recommendations. The Law Reform (Miscellaneous Provisions) Act makes allowance for solicitor advocates to appear. Why then should they be excluded from the right of appeal?

As regards Amendment No. 292Q, the provision in the Bill simply allows the court to appoint counsel as amicus curiae. Solicitors with extended rights of audience should also be capable of being appointed.

Lord Hardie

I am sorry to interrupt the noble Lord. Perhaps I may short circuit proceedings by saying to the noble Viscount that the answer is yes, and invite him to withdraw the amendment.

Viscount Thurso

As instructed, and with humility and grace, I thank the noble and learned Lord for his answer and and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 292Q not moved.]

Lord Hardie moved Amendments Nos. 292QA and 292QB:

Page 95, leave out lines 33 and 34 and insert—

("Appeals to Judicial Committee of the Privy Council.)

288B.—(1) This section applies where the Judicial Committee of the Privy Council determines an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998 against a determination of a devolution issue by the High Court in the ordinary course of proceedings.

(2) The determination of the appeal shall not affect any earlier acquittal or earlier quashing of any conviction in the proceedings.

(3) Subject to subsection (2) above, the High Court shall have the same powers in relation to the proceedings when remitted to it by the Judicial Committee as it would have if it were considering the proceedings otherwise than as a trial court."

() In section 307(1) (interpretation), after the definition of "crime" there is inserted— devolution issue" has the same meaning as in Schedule 6 to the Scotland Act 1998;".").

Page 95, line 42, at end insert—

("Damages Act 1996 (c.48)

In section 6 of the Damages Act 1996 (guarantees for public sector settlements), after subsection (8) there is inserted—

"(8A) In the application of subsection (3) above to Scotland, for the words from "guidelines" to the end there shall be substituted "the Minister.").

On Question, amendments agreed to.

Schedule 7, as amended, agreed to.

Schedule 8 [Repeals]:

Lord Hardie moved Amendment No. 292QC:

Page 96, line 34, at end insert—

("1984 c. 4.

The Tourism (Overseas Section 1(2).") Promotion) (Scotland) Act 1984.

On Question, amendment agreed to.

Baroness Ramsay of Cartvale moved Amendment No. 292R:

Page 96, leave out lines 35 and 36.

The noble Baroness said: In another place, the Government amended the provisions in the Bill which deal with the disqualification of MSPs if they are declared bankrupt. This was to ensure that the provisions apply in the same way and with the same effect as they do to MPs. Amendment No. 292R is a consequential amendment necessary as a result of the earlier amendments. I beg to move.

On Question, amendment agreed to.

Schedule 8, as amended, agreed to.

Clause 112 [Interpretation]:

[Amendment No. 293 not moved.]

Baroness Ramsay of Cartvale moved Amendment No. 293XZA:

Page 52, line 37, leave out from ("Parliament,") to ("and") in line 41 and insert ("Northern Ireland legislation (within the meaning of the Northern Ireland Act 1998)").

The noble Baroness said: This is a minor and technical amendment to update the definition of "enactment" provided in Clause 112 to take account of the creation of the new Northern Ireland Assembly. The Northern Ireland Bill currently before this House provides for the establishment of the assembly, which will be able to pass Acts. At present, Clause 112 lists various forms of legislation connected with Northern Ireland. In the interests of simplicity, that is replaced here with a reference to the definition provided in the Northern Ireland Bill, thereby bringing Acts of the Northern Ireland assembly within the definition of "enactment" in the Scotland Bill. I beg to move.

On Question, amendment agreed to.

Baroness Ramsay of Cartvale moved Amendment No. 293YZA:

Page 53, line 3, at end insert— (""government department" means any department of the Government of the United Kingdom").

The noble Baroness said: These are technical amendments. Amendment No. 293YZA provides the definition of "government department" for the purpose of the Bill, making it clear that the expression does not include the Scottish administration. Amendment No. 294ZZB adds this definition to the index of defined expressions in Clause 113. Amendment No. 294ZZC is also a technical amendment. It simply adds the definition of "Member of the Scottish Executive" provided in Clause 41(1), to the index of defined expressions in Clause 113. I beg to move.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 293ZZA:

Page 53, line 6, leave out ("as it has") and insert ("and (b) the Protocols to the Convention, as they have").

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 293ZA and 293YA:

Page 53, line 9, at end insert— (""occupational pension scheme", "personal pension scheme" and "public service pension scheme" have the meanings given by section 1 of the Pension Schemes Act 1993, but as if the reference to employed earners in the definition of personal pension scheme were to any earners,").

Page 53, line 14, leave out ("115") and insert ("(Commencement)").

On Question, amendments agreed to.

Lord Selkirk of Douglas moved Amendment No. 293A:

Page 53, line 23, leave out ("adjacent to") and insert ("surrounding").

The noble Lord said: Although in shipping legislation the phrase "adjacent to" is sometimes used, the Scotland Bill is certainly not maritime legislation. The territorial extent of Scotland is a matter of custom and this amendment is designed to ensure that there is no doubt whatever about the issue. I should be grateful if the Minister could look at the matter between now and Report with a view to bringing back an amendment if necessary. I beg to move.

Lord Hardie

As was explained on an earlier occasion, the term "adjacent to" is used consistently across existing fisheries legislation to describe what is a water for the specific purposes of each piece of legislation. We have considered the matter and we are not persuaded that any useful purpose would be served by using the word "surrounding" instead. Indeed, to use the term "surrounding" would require any Order in Council under Clause 112(2) to specify not just a boundary between Scottish waters and other UK waters but would require an outer limited to be defined as relevant to the waters surrounding Scotland. I invite the noble Lord to withdraw the amendment.

Lord Selkirk of Douglas

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hardie moved Amendment No. 293ZAA:

Page 53, line 24, after ("body") insert ("(except the Parliamentary corporation)").

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 293AA and 293AB:

Page 53, line 26, at end insert— (""the Scottish zone" means the sea within British fishery limits (that is, the limits set by or under section 1 of the Fishery Limits Act 1976) which is adjacent to Scotland,").

Page 53, line 33, after ("Kingdom") insert (", or sea within British fishery limits,").

On Question, amendments agreed to.

[Amendment No. 293B not moved.]

Lord Hardie moved Amendments Nos. 293C and 294:

Page 53, line 33, at end insert—

("() For the purposes of this Act—

1. (a) the question whether any function of a body, government department, office or office-holder relates to reserved matters is to be determined by reference to the purpose for which the function is exercisable, having regard (among other things) to the likely effects in all the circumstances of any exercise of the function, but
2. (b) bodies to which paragraph 2A of Part III of Schedule 5 applies are to be treated as if all their functions were functions which relate to reserved matters.").

Page 53, line 48, leave out ("in section 28").

On Question, amendments agreed to.

[Amendment No. 294YZA had been withdrawn from the Marshalled List.]

Baroness Ramsay of Cartvale moved Amendment No. 294YZB:

Page 54, line 20, leave out from ("office") to end of line 24 and insert ("of a description specified in an Order in Council made by Her Majesty under this subsection").

The noble Baroness said: The Scottish administration will be made up of certain office holders and their staff. These are the members of the Scottish executive, junior Scottish ministers and their staff and certain non-ministerial office holders and their staff. These non-ministerial office holders are civil servants who currently form part of government and should, after devolution, form part of the Scottish administration which will effectively be the government in Scotland in relation to devolved matters.

For the avoidance of doubt, we have to specify what these officers are. The three most significant such officers—the registrar general and the keepers of the registers and the records who head their own departments—are mentioned expressly, but there are quite a number of others such as the accountant in bankruptcy, the chief social work inspector and sheriff clerks. We believe that the most appropriate way of achieving that is to list them in an Order in Council which we propose will be subject to negative resolution in both the UK Parliament and the Scottish parliament. Amendment No. 294YZB amends the existing Clause 112(7)(b) to allow this. I beg to move.

Lord Mackay of Ardbrecknish

I cannot let this amendment go before noting that it is the last which is to be moved, other than formally. I am glad to see that we have reached the tapes, although a little later than I had promised. Perhaps I may give the Government a little piece of advice from an old hand at legislation. "Technical and correcting amendments" is often sufficient few words to get through many of the amendments we have dealt with recently and Members of the Opposition just smile and let them pass—as I do with this one!

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 294XZA:

Page 54, leave out lines 34 and 35 and insert ("to observe and implement Community law or the Convention rights").

On Question, amendment agreed to.

Clause 112, as amended, agreed to.

Clause 113 [Index of defined expressions]:

Lord Hardie moved Amendments Nos. 294ZZA to 294A:

Page 55, line 1, at end insert—
("Auditor General for Scotland	Section (Auditor General for Scotland)")
Page 55, line 18, at end insert—
("Government department	Section 112(1)")
Page 55, line 22, at end insert—
("Member of the Scottish Executive	Section 41(1)")
Page 55, line 26, at end insert—
("Occupational pension scheme, personal pension scheme and public service pension scheme	Section 112(1)")
Page 55, line 30, at end insert—
("Open power	Section 101(C1)")
Page 56, line 4, at end insert—
("The Scottish zone	Section 112(1)")

On Question, amendments agreed to.

Clause 113, as amended, agreed to.

Clause 114 agreed to.

Clause 115 [Commencement]:

[Amendments Nos. 295 and 296 not moved.]

[Amendment No. 297 had been withdrawn from the Marshalled List.]

Lord Hardie moved Amendment No. 297A:

Page 56, line 23, at end insert— ("(4) If any of the following provisions come into force before the Human Rights Act 1998 has come into force (or come fully into force), the provision shall have effect until the time when that Act is fully in force as it will have effect after that time: sections 28(2)(d), 53(2), (Human Rights) and 112(1) and Schedule 6.").

On Question, amendment agreed to.

[Amendment No. 298 had been withdrawn from the Marshalled List.]

Clause 115, as amended, agreed to.

Lord Hardie moved Amendment No. 299:

Divide Clause 115 into two Clauses, the first (Transitional provisions etc.) to consist of subsections (3) and (4) and the second (Commencement) to consist of subsections (1) and (2).

On Question, amendment agreed to.

Clauses 116 and 117 agreed to.

House resumed: Bill reported with amendments.