HL Deb 22 October 1998 vol 593 cc1677-82

(" .—(1) The proceedings shall be recorded by any means which the Parliament thinks fit.

(2) The record made under subsection (1) above shall be capable of being referred to in any proceedings for the purpose of clarifying any ambiguity or lack of clarity in an Act of the Scottish Parliament or any subordinate legislation passed by the Parliament.

(3) The proceedings may be broadcast in any way which the Parliament may agree.").

The noble Lord said: My Lords, this amendment allows for the recording and broadcasting of the proceedings of the Scottish parliament. It provides also authority to allow the rule in Pepper v. Hart, which was in [1993] 1 All England Reports on page 42 regarding references in court to the parliamentary record.

Until that case was decided, the parliamentary record of Hansard could not be referred to for the purposes of explaining an Act of Parliament. That case relaxed the rule and allowed reference to parliamentary materials where the legislation was ambiguous, obscure or led to an absurdity; or where the material relied on consisted of one or more statements by a Minister or other promoter of the Bill together, if necessary, to understand such statements and their effect; and where the statements relied on are clear.

That case was binding on Scotland in respect of Hansard reports alone. Although it is very likely to be extended by analogy to the Scottish parliamentary record, that application will not be automatic and would require to be raised in a case or decided upon by a court.

The consultative steering committee group secretariat hinted at that in its departmental proposals regarding the options for reporting the parliament's procedures when it stated: The courts can in certain circumstances refer to Hansard in construing legislation and the Official Report in Scotland may also be used in a similar way post-devolution". It is surely more appropriate for legislation to deal with that at this point. This amendment is necessary to extend the advantages of Pepper v. Hart to the Scottish parliamentary record and to make absolutely certain that broadcasting and recording of the proceedings of parliament are admissible in court in order to explain what the intention of the legislation both was and is. I beg to move.

Lord Mackay of Drumadoon

This matter was debated in Committee on 14th July. The view was then expressed by the noble and learned Lord, Lord Rodger of Earlsferry, that there may be doubt whether it was necessary to have such a provision on the face of the Bill if the Government could give an assurance that they expected that the court, in the interpretation of any Act, could refer to the proceedings in the Scottish parliament in the same way that courts refer to proceedings under Pepper v. Hart under the present regime.

In reply, the noble and learned Lord the Lord Advocate indicated that that was the Government's position. However, he went on to say: The question of interpretation of the Acts of the Scottish parliament will be a matter for the courts. The Scottish parliament itself may pass legislation similar to the Interpretation Act to assist in the interpretation of Acts of Parliament. But unless such provision is made by the Scottish parliament about construing a particular Act or Acts of Parliament, in my submission, the courts would apply the same canons of construction, including reference to the proceedings in parliament in cases of ambiguity. I see no reason for any difference between construing an Act of the Scottish parliament by the courts and an Act of the UK Parliament. In certain limited circumstances, it may well be appropriate to look at the proceedings in the Scottish parliament".—[Official Report, 14/7/98; col. 248.] Reflecting on what the noble and learned Lord the Lord Advocate said on that occasion, a thought struck me as to whether it would be within the legislative competence of the Scottish parliament to enact legislation indicating how the English courts or the Northern Irish courts could construe Acts of the Scottish parliament because having regard to the provisions of Clause 28(2)(a), there may be an argument that such an interpretation Act would form part of a law of a country or territory other than Scotland.

In reflecting on that, it seemed that there may well be force in the concern that the Law Society expressed, which is along the following lines: that, even though we would expect the Pepper v. Hart approach to be followed by courts throughout the United Kingdom, nevertheless there may be some sense in putting the middle part of this amendment on the face of the Bill. Subsection (1) would be necessary to make subsection (2) work, and subsection (3) would be a matter for the Scottish parliament itself. I have no strong view on that one way or the other, though personally I would wish the proceedings to be broadcast.

I am concerned that, while subsection (2) may come to pass, lying behind this there may be a matter of concern that, if the Scottish parliament is to be given powers to require the Scottish courts to interpret legislation in a way different from the canons of construction that would apply to UK statutes, that could be extended extra-territorially into England, Wales and Northern Ireland. It does not arise directly from the amendment but seems to lie behind it and I invite the noble and learned Lord the Lord Advocate, his colleagues and officials, to reflect on that before the Bill leaves your Lordships' House.

The Earl of Balfour

My Lords, before the Minister replies, perhaps I may say that I feel from what has been said that we must protect the Scottish parliament from being challenged over any question in court. That is where I feel that this is a necessary amendment and am extremely glad that it was tabled.

Lord Hardie

My Lords, we do not consider the amendment to be necessary. As the noble Lord, Lord Selkirk of Douglas, pointed out, the effect of the amendment would be to put into the Bill a provision to allow the record of proceedings to be relied upon by the courts in a Pepper v. Hart-type situation where there is ambiguity in the legislation.

Perhaps I may deal with the point raised by the noble and learned Lord, Lord Mackay of Drumadoon. The position would be that the Scottish parliament could not legislate to have effect south of the Border; it could not affect the English law. However, English courts may well wish to interpret Scottish legislation in certain situations and would apply the canons of construction that apply to the interpretation of legislation of the UK Parliament, including the application of Pepper v. Hart.

In relation to the Scottish courts, the position is as I stated on the last occasion when this was discussed, in July, when the noble and learned Lord, Lord Rodger of Earlsferry, raised this matter. The noble and learned Lord, Lord Mackay of Drumadoon, referred to the passage in Hansard where I set out the position. My position quite clearly is that, in the absence of any legislation by the Scottish parliament affecting interpretation of Scottish legislation, the Scottish courts would follow the canons of construction and would apply the principles of Pepper v. Hart in appropriate cases. Of course the Scottish parliament could legislate to indicate that that was to be excluded in the interpretation of the legislation by the Scottish courts, but that would be entirely a matter for the parliament, just as this Parliament could legislate to change the rules in relation to Pepper v. Hart.

Essentially, what I am saying is that the question of construction of statutes is for the appropriate courts. They would apply the canons of construction with which they are familiar unless they were changed by legislation—either by the UK Parliament in relation to UK legislation or by the Scottish parliament in relation to Scottish legislation. But any interpretation Act of the Scottish parliament could only have effect in relation to Scottish courts. I trust that, with that explanation, the noble Lord will feel able to withdraw his amendment.

11.15 p.m.

Lord Selkirk of Douglas

My Lords, I am puzzled that the Lord Advocate does not feel able to clarify the law in this connection as it appears that he agrees with the principles laid down in Pepper v. Hart for the rest of the United Kingdom—certainly for England—and I do not see what objection there can be to clarifying this point in legislation. A Scots parliament could obviously change the law in the future in this connection if it so wished, and I do not see what objection in principle the Lord Advocate can have. If my noble friend agrees, perhaps we can return to this on Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 [Standing orders—further provision]:

Baroness Ramsay of Cartvale moved Amendment No. 89:

Page 64, line 22, leave out from ("proceedings") to end of line 23 and insert—

("Withdrawal of rights and privileges

The standing orders may include provision for withdrawing from a member of the Parliament his rights and privileges as a member.").

The noble Baroness said: My Lords, I should like to explain the general principle behind Amendments Nos. 89 and 91 to 100. I shall try to do so briefly. I know that this is a big group of amendments, but it takes very much into account our discussions in Committee. I should, of course, be happy to give noble Lords more information about the detail of any of the government amendments, should they wish it.

As I explained when we last debated this schedule in Committee, the Government want to ensure that the parliament puts in place a framework to regulate members' interests. I am sure that the electorate would expect no less. The White Paper made it clear that there would be "minimum requirements" in respect of, among other things, rules about members' pecuniary interests.

These amendments ensure that the parliament is under a basic duty to make provision for the regulation of its members' interests. The parliament will have to make provision for a register of interests that is published and publicly available and for its members to register their financial interests and to declare such interests before taking part in any proceedings of the parliament relating to that matter. The parliament will also be required to make provision prohibiting paid advocacy. These provisions are intended to ensure that all MSPs work in a properly regulated framework which ensures propriety in the conduct of the parliament's business.

Previously, the parliament was to be required to make provision for this in its standing orders. We have been looking carefully at this provision and considered that this could restrict the parliament in what it was able to do; for example, the parliament may want to make provision about a code of conduct for MSPs. This could go beyond what MSPs did in the proceedings of the parliament. That would be outwith the scope of standing orders. These amendments give the parliament the flexibility to address such situations.

Moreover, when this House last considered this schedule, a number of noble and learned Lords expressed concern that provisions relating to criminal offences would be defined in standing orders rather than in legislation. These amendments address that concern. They provide that the parliament must make provision by, or under, an Act of the Scottish Parliament (ASP). That is not to say that standing orders cannot be used at all in the context of provisions about members' interests. It is anticipated that the core provisions would be in the ASP or subordinate legislation under it. But there is no reason why certain procedural matters for example could not be left to standing orders.

We believe that these amendments will assist the parliament in developing a robust and rigorous approach to such matters and I urge noble Lords to support them. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, the noble Baroness will be pleased and probably slightly grateful to hear that we welcome these amendments. They take into account some of the problems raised in Committee. We on these Benches are grateful to the Government for that and are content to let the amendments pass.

The Deputy Speaker (Lord Cocks of Hartcliffe)

My Lords, you will recall that Amendment No. 90 has already been spoken to. With the leave of the House, I shall put Amendments Nos. 89 to 100 en bloc.

Lord Steel of Aikwood

My Lords, before that is done, perhaps I may put one small point on Amendment No. 90. As it refers to the presiding officer, I would like to add one sentence to what I said before about the situation in Northern Ireland because I should have added that the provision that I quoted—I hope that the noble Baroness is listening to me—is a direct lift from the standing orders of the 1973 Northern Ireland Assembly. In addition, I am told that the Minister of State, in the course of official consultations, has confirmed that the term "presiding officer" is a legal one and that it is entirely a matter for the assembly to determine what the presiding officer is actually called. Although I agree that we should pass Amendment No. 90, we cannot leave a situation where the Welsh assembly and the Northern Ireland Assembly can call the person who presides over them whatever they like while the Scottish parliament must do what it is told by this place. That is not a tenable position and it must be put right before we go further with the Bill.

On Question, amendment agreed to.

Baroness Ramsay of Cartvale moved Amendment No. 90:

Page 64, line 34, at end insert—

("The Presiding Officer and deputies

The standing orders shall include provision for ensuring that the Presiding Officer and deputies do not all represent the same political party.").

On Question, amendment agreed to.

Clause 22 [Members' interests]:

Baroness Ramsay of Cartvale moved Amendments Nos. 91 to 100:

Page 10, line 25, leave out from beginning to ("in") in line 35 and insert—

("(1) Provision shall be made for a register of interests of members of the Parliament and for the register to be published and made available for public inspection.

(2) Provision shall be made—

  1. (a) requiring members of the Parliament to register in that register financial interests (including benefits in kind), as defined for the purposes of this paragraph,
  2. (b) requiring that any member of the Parliament who has a financial interest (including benefits in kind), as defined for the purposes of this paragraph,").

Page 10, line 38, leave out from beginning to ("for") in line 39 and insert ("Provision made in pursuance of subsection (2) shall include any provision which the Parliament considers appropriate").

Page 10, line 40, leave out from ("with") to second ("in") in line 41 and insert ("an interest defined for the purposes of subsection (2)(a) or (b)").

Page 10, line 43, leave out ("Standing orders shall include provision") and insert ("Provision shall be made").

Page 11, line 3, leave out ("standing orders") and insert ("provision").

Page 11, line 8, leave out ("Standing orders may include provision") and insert ("Provision made in pursuance of subsections (2) to (4) shall include any provision which the Parliament considers appropriate").

Page 11, line 10, leave out from ("of') to end of line 11 and insert ("those subsections").

Page 11, line 15, leave out ("subsections (1) to") and insert ("subsection (2) or").

Page 11, line 20, after ("section,") insert—

  1. ("(a) "provision" means provision made by or under an Act of the Scottish Parliament, and
  2. (b)").

Transpose Clause 22 to after Clause 36.

On Question, amendments agreed to.

Baroness Amos

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

Moved accordingly and, on Question, Motion agreed to.