§ 3.15 p.m.
§ The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel)
My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.—(Lord Sewel.)
§ On Question, Motion agreed to.
§ Clause 23 [Power to call for witnesses and documents]:
§ The Lord Advocate (Lord Hardie) moved Amendment No. 101:
§ Page 11, line 26, leave out from beginning to ("in") in line 10 on page 12 and insert ("concerning any subject for which any member of the Scottish Executive has general responsibility.
§ (1A) Subject to subsection (1B), the Parliament may impose such a requirement on a person outside Scotland only in connection with the discharge by him of—
- (a) functions of the Scottish Administration, or
- (b) functions of a Scottish public authority or cross-border public authority, or Border rivers functions (within the meaning of section 103(4)), which concern a subject for which any member of the Scottish Executive has general responsibility.
§ (1B) In relation to the exercise of functions of a Minister of the Crown, the Parliament may not impose such a requirement on—
- (a) the Minister of the Crown, or
- (b) a person in Crown employment, within the meaning of section 191(3) of the Employment Rights Act 1996,
§ (1C) But the Parliament may not impose such a requirement in pursuance of subsection (1B) in connection with the exercise of functions which are exercisable—
- (a) by the Scottish Ministers as well as by a Minister of the Crown, or
- (b) by a Minister of the Crown only with the agreement of, or after consultation with, the Scottish Ministers.
§ (1D) Subsection (1C)(b) does not prevent the Parliament imposing such a requirement in connection with the exercise of functions which do not relate to reserved matters.
§ (1E) Where all the functions of a body relate to reserved matters, the Parliament may not impose such a requirement on any person in connection with the discharge by him of those functions.
§ (1F) The Parliament may not impose such a requirement on—
- (a) a judge of any court, or
- (b) a member of any tribunal").
§ The noble and learned Lord said: My Lords, Amendment No. 101 is one of a group of amendments to which amendments have been tabled by the Opposition. In moving it my intention is to speak to Amendments Nos. 104 to 110 and Amendments Nos. 118, 227, 229 and 230. I shall also speak to Amendment No. 103A.
§ The background to these amendments is that Clause 23 was originally framed in a certain way. Since then the ground on which it was originally built has moved considerably, particularly, for example, because of the amendments concerning the legislative competence of the Parliament, which were made in Committee.
§ In redrafting the clause to take account of these changes we have tried to state in ordinary language what it is that the Parliament may require someone to give evidence about, while preserving the various limitations to the Parliament's powers which are included in the clause as it presently stands.
The key alteration here is that we propose to replace references to "devolved matters" and,
other matters in relation to which functions are exercisable by the Scottish Ministers
with a reference to giving evidence or producing documents,
concerning any subject for which any member of the Scottish Parliament has general responsibility".
We think that it is appropriate in this context to use, so far as possible, language which can be given its ordinary meaning, rather than tying the provision to the complexities of "matters", "relating to" and so on.
§ It is intended that this new formulation will cover what was previously covered, such as functions that are conferred on Scottish Ministers under or by virtue of Clauses 49, 59, 85 and 103, the retained functions of the Lord Advocate and functions of the First Minister. It is also intended to cover areas where the Scottish administration operate but where the Scottish Ministers may have no functions, simply a general overall responsibility.
§ In doing away with the reference to "devolved matters" we decided that it would not be right to tie a new definition entirely to functions. For example, in the field of health there are large areas of activity where Ministers' specific functions, as such, are limited, as matters stand, to making appointments to the bodies, which exercise direct responsibility for the delivery of services. We would not want there to be any room to argue that the Parliament's powers to hold inquiries into health issues was limited to the narrow "function" of making appointments. It should be able to investigate 1919 such issues, without facing artificial constraints. Similar issues could arise in areas where local authorities are responsible for the actual delivery of services.
§ In other words, the wording of the new provision is simply framed to avoid difficulties where it is clear that a particular subject falls within the responsibility of the Scottish administration, but where there may be scope for arguments as to what extent Ministers exercise actual functions in relation to it under existing legislation. Without this general construction, the Parliament could be hampered in the extent to which it is able to conduct effective inquiries into subjects which are clearly devolved. That was not a risk under the previous drafting, which included a general reference to "devolved matters".
§ I hope that it will help the House if I describe in some detail how the limitations on the parliament's power have been redrafted. I shall deal first with the provisions as regards persons outside Scotland. For those outside Scotland, the parliament can only impose a requirement in connection with a person's discharge of functions of the Scottish administration, or functions of a Scottish public authority or cross-border public authority, or Borders rivers functions, where those functions concern a subject for which any member of the Scottish executive has general responsibility. So, for example, a representative of a cross-border public authority can be summoned only in connection with the functions of that body relating to devolved matters, because only those functions concern a subject for which a member of the Scottish executive has general responsibility. I hope that noble Lords will agree that that reformulation is a sensible recasting of what was already there in subsection (3) of the present clause.
§ I turn now to Amendments Nos. 101A and 102. The Opposition's Amendment No. 102 seeks to delete the word "general" from general responsibility in subsection (1A)(b) of the new clause, which is about imposing requirements on persons outside Scotland, in particular in connection with the discharge of functions of Scottish public authorities and cross-border authorities. The Opposition's Amendment No. 101A seems to cover similar ground.
§ I have already explained why we have adopted the new phrase which may be causing noble Lords opposite a certain amount of concern. The word "general" is intentionally included in the drafting to reduce the scope for technical debates about the extent to which a particular issue is or is not the responsibility of Scottish ministers. We think that if we accepted those amendments, the intended position would be less clear. That is why we feel unable to do so.
§ I turn now to the matter of Ministers of the Crown under this new provision. The parliament will have very limited powers to impose a requirement to give evidence on Ministers of the Crown and their civil servants. The relevant provisions are set out in the proposed new subsections (1B) to (1D).
§ Again, the intention has been to restate, and where possible clarify, what is already in the clause. In relation to the exercise of ministerial functions, a Minister of the Crown or civil servant may only be called to answer for 1920 the exercise of such a function in so far as the exercise of that function concerns a subject for which any member of the executive has general responsibility.
§ The main example of this once more concerns cross-border public authorities. Noble Lords will recall that functions in relation to such authorities do not transfer automatically to Scottish ministers, but those bodies will exercise functions in relation to devolved matters and it is right that the parliament should be able to require a Minister of the Crown or his civil servants to give evidence in relation to his ministerial functions in connection with that authority where that concerns a devolved matter; in other words, a matter concerning which a member of the Scottish executive has general responsibility.
§ I turn now to Amendments Nos. 103B and 103D. As before, where a function is exercisable by Scottish ministers as well as by Ministers of the Crown; for example, by virtue of Clause 52, the parliament cannot require a Minister of the Crown to give evidence; nor can it do so merely because the Minister exercises a function with the agreement of, or after consultation with, Scottish ministers; for example, because of a provision made in an order under Clause 59(1)(c). This point was covered previously by Clause 23(5)(b) and with the redrafting, the new subsection (1D) is needed to preserve the effect of that previous paragraph. I hope that, again, this provides some reassurance in relation to Amendments Nos. 103B and 103D.
§ Amendment No. 103E seeks to delete new subsection (1E). Persons discharging functions of bodies, all the functions of which relate to reserved matters, may not be summoned in relation to those functions. That simply restates the provision originally at Clause 23(6)(a), but brings the language into line with that used elsewhere in the Bill.
The protection for judges and members of tribunals is retained. Amendment No. 227, to which I shall return in a moment, provides a definition of "tribunal" for all purposes in the Act, which allows the specific reference to tribunals,
which exercise the judicial power of the state",
originally in Clause 23(6)(c) to be omitted. I am sorry that the noble and learned Lord, Lord Hope of Craighead, is not in his place because noble Lords will remember that he was concerned about that point in Committee. I believe that we have now addressed that.
§ I hope that this reassures the House that what are, I freely admit, complex provisions have not been substantially altered but, as far as possible, made clearer and more compatible with drafting elsewhere in the Bill.
Amendment No. 227 raises a slightly different point. It reflects a point raised in Committee that, although "tribunal" is defined for the purposes of this clause, it is not defined in other contexts in the Bill, most notably in Schedule 6 but also, for example, in Clauses 93 and 95. We think that "tribunal" ought to have a consistent
definition throughout the Bill. In the Human Rights Bill, "tribunal" is defined as,
any tribunal in which legal proceedings may be brought",
and we think that that definition is a sensible one to adopt also in this Bill. I hope noble Lords who have raised this issue will feel that that provides a useful clarification.
§ I am grateful for Amendment No. 103A. The particular purpose behind the special protection given to Ministers of the Crown in Clause 23(1B) is to avoid the problem of "double accountability"; in other words, the risk that individuals will find themselves answerable to two different parliaments at once. The proposed amendment seeks to extend that protection to those who have in the past been Ministers of the Crown. We are not certain that the amendment is necessary, but we are content to consider the points raised by it and, if necessary, to return at Third Reading with an appropriate amendment.
§ With that long explanation—I hope that noble Lords will accept that it was unavoidably lengthy—I hope that noble Lords will feel able to withdraw their amendments. I beg to move.
§ The Chairman of Committees (Lord Boston of Faversham)
My Lords, we now come to Amendment No. 101A, as an amendment to Amendment No. 101. I must point out to the House that if Amendment No. 101A is agreed to, I cannot call Amendment No. 102.
Lord Mackay of Drumadoon moved, as an amendment to Amendment No. 101, Amendment No. 101A:
Line 10, leave out from ("which") to end of line 11 and insert ("relate to the exercise of the functions of the Scottish Administration").
§ The noble and learned Lord said: My Lords, in moving Amendment No. 101A, I shall, of course, deal with all the amendments which the noble and learned Lord the Lord Advocate has just discussed. I am sure that the whole House will be grateful to him for having explained why this raft of amendments is required. It illustrates yet again the value of an important and complex Bill being considered over a period of months in two separate Chambers. I may be wrong, but I think that some of the amendments that we are considering today seek to amend amendments that were made to the Bill in Committee. It is clear that serious further thought has been given by the Government to the drafting of the Bill. That is to be welcomed because of the importance of this matter for Scotland and, indeed, the whole of the United Kingdom.
§ I shall read carefully in Hansard what the noble and learned Lord has just said, but in speaking to the amendments perhaps I may illustrate what I understand the position to be. Perhaps in reply the noble and learned Lord will then confirm whether or not I am correct. Amendment No. 101A seeks to delete the words concerning any subject for which any member of the Scottish executive has general responsibility. My 1922 understanding is that the phrase which currently appears in the government amendments is of wider scope than the executive competence, as defined in Clauses 48 to 50 and anything that may be covered by a Section 59 order under Clause 59. Those clauses set out the ministerial functions of Scottish ministers. Some are derived from Clause 49, which is a general transfer of functions; others will derive from other clauses; and yet others will derive from any order made under Clause 59. We have a draft of such an Order in Council available for consideration. As I understand it, the noble and learned Lord the Lord Advocate said that this term is meant to be broader than that. I should be grateful if he would elaborate, by way of example, what he has in mind.
§ Another of my amendments seeks to delete the word "general". I have some difficulty in knowing the difference between a member of the Scottish executive having "responsibility" for a subject as opposed to "general responsibility" for a subject. The noble and learned Lord the Lord Advocate said that it might give rise to unnecessary dispute if the word is taken out. I venture to suggest that if the word remains in there might also be scope for disputes. It would be extremely helpful if that could be clarified before I decide whether or not to press Amendment No. 101A.
§ Moving on, I am grateful for the further consideration that has been given to Amendment No. 103A, and I will obviously not insist on that.
§ I remain concerned about the effects of the new subsection (1C) and (1B), to which Amendments Nos. 103 and 103E are directed. If a Minister of the Crown is to be summonable in certain circumstances, the distinctions which are set out in these two new subsections are somewhat artificial and may give rise to a measure of dispute.
§ I have no difficulty with Amendments Nos. 110 and 118, and the other amendment to which I have spoken, and I am content that they should be added to the Bill at this stage. I beg to move.
§ 3.30 p.m.
§ Baroness Carnegy of Lour
My Lords, when the noble and learned Lord replies I should be grateful if he could tell the House exactly how the use of the word "general" will clarify the functions to which the clause refers. This will be very important. It will be a question of whether a request is valid or not. The meaning is crucial. Will the noble and learned Lord attempt to tell us where "general responsibility" begins and ends and what it actually means? It is very important.
It is quite difficult to follow the government amendments. Perhaps on another occasion it might be possible to remove a larger part of the Bill and put the re-written part in as a whole amendment. It would be easier for a lay person like myself to follow what is happening. As I understand it, the clause is being rewritten in two clauses. It is difficult to follow how it is done. I ask that as a subsidiary question, but the noble and learned Lord might take it on board for the sake of 1923 those of us who have some difficulty in following detailed, technical amendments. My specific question is about the word "general".
§ The Earl of Mar and Kellie
My Lords, these government amendments remove a chunk of the Bill and replace it with, I believe, words of greater clarity. The power to call for witnesses and documents has to be mentioned in this Bill because of the statutory nature of the parliament. Obviously the Parliament at Westminster has these powers, but they are not written down for well-known reasons. The replacement words in the amendments are clearer and are in more readable English. These powers are important to the work and ability of the Scottish parliament.
As to Amendment No. 110, it is a useful amendment which attempts to clarify the meaning of the clause. I approve of that, particularly as the Bill is specifying how an offence may be committed. Absolute clarity should be attempted in such circumstances. The court will find this helpful, particularly as such a prosecution might have a political context. Such a quasi-political trial will attract attention and it will therefore be helpful if the subjects specified in the notice are very clear and all encompassing. It will be important that the accused should have acted deliberately and not by accident. It would be disastrous if the first prosecutions under this clause were to founder on points of legal definition. These government amendments can be supported.
§ Lord Fraser of Carmyllie
My Lords, I support my noble friend Lady Carnegy in seeking further elucidation of what is meant by "general responsibility". I have in mind the issue of agriculture. I should have thought that the individual citizen in Scotland would believe that agriculture would fall within the remit of this Scottish parliament. However, as the noble Lord, Lord Sewel, indicated to us in a very interesting speech at Committee stage, the whole matter of agriculture as it is affected by the common agricultural policy is not to be within the purview of the Scottish parliament but is to fall within that reservation described as "foreign affairs".
I am confused. If agriculture is generally within the responsibility of the Scottish parliament, is this a route whereby it would become open to members of the Scottish parliament to make inquiries about matters relating to the common agricultural policy? As I understood the noble Lord's explanation at Committee stage, that would not properly be for the Scottish parliament but for Scottish MPs to pursue here in the Westminster Parliament.
My Lords, I should like briefly to follow up the point made by my noble friend Lady Carnegy of Lour, who referred to the complicated situation created by the government amendments. I sympathise with my noble friends on the Front Bench who say that they have to make amendments to those amendments. That makes the matter even more complicated. It would have been so much better on this occasion to ask your Lordships to approve leaving out Clause 23 and substituting a completely redrafted new 1924 clause. Rather than pursue these detailed matters now, it might be very much better if the noble and learned Lord the Lord Advocate would agree to do that. It would simplify matters and, at the next stage, we could have a much more rational consideration of the whole matter.
The Earl of Balfour
My Lords, I wish to raise one point on Amendment No. 109, in which Clause 23 is divided into two parts. I am perfectly happy with subsections (8) and (9) going into another clause. Under subsection (8), a requirement under the section "Power to call for witnesses and documents" is imposed on the Clerk to give the person in question notice in writing. That is fair enough. Subsection (9) states how that notice should be sent—by registered post, and so on. But subsection (10) still deals with that person, stating:A person is not obliged under this section to answer any question or produce any document which he would he entitled to refuse to answer or produce in proceedings in a court in Scotland".That belongs to subsections (8) and (9) and not in the other part of the clause. When I looked at this rather complicated group of amendments, I felt that subsection (10) should be in what will turn out to be the smaller of the two clauses.
§ Lord Hardie
My Lords, the point raised by the noble Earl, Lord Balfour, is clearly a drafting issue which we could certainly consider and, if necessary, rearrange for Third Reading. Having said that, I am not giving a guarantee that that would be the outcome of such consideration.
I understand the concern of the noble Baroness, Lady Carnegy of Lour, and the noble Lord, Lord Renton, about the way in which the amendments have been brought forward. I can only apologise if that has caused inconvenience to the House. Certainly, it is a matter which we can consider at any future stage should we be in a similar position with another Bill. The noble Lord, Lord Renton, proposes that we withdraw the amendments and come back with them at Third Reading. I have given brief consideration to that matter but, on reflection, I think it preferable to proceed with the amendments at this stage. By the time we reach Third Reading noble Lords will have had time to reflect on the amendments. If there are drafting issues, or issues which are appropriate for Third Reading, that might be the way to proceed.
The noble and learned Lord, Lord Mackay of Drumadoon, the noble Baroness, Lady Carnegy of Lour, and the noble and learned Lord, Lord Fraser of Carmyllie, asked about the general responsibilities. In my initial outline of the amendments I sought to explain that we were anxious to ensure that the parliament was not unduly restricted in matters which it could consider in this way. I used the example of health. I specifically sought examples because it is often helpful to point to an example. I considered health quite a good example illustrating how the responsibility of the parliament might well be very restricted in connection with making appointments to certain bodies and the bodies themselves carrying out the delivery of the services. In that situation we think it appropriate that the parliament should be able to address health issues and not confine itself only to appointments to boards, trusts and so on. That is the reasoning behind the use of a general approach.
1925 I understand the point made by the noble and learned Lord, Lord Mackay of Drumadoon, that by putting in the word "general" there may be disputes as to whether a matter comes within the general responsibility. That may be an easier question to answer. The present wording will give effect to the intention of the Bill in allowing the parliament to deal with matters which have been devolved. That is preferable to having a far too restrictive definition which would deny the parliament the opportunity to deal with such matters.
Perhaps I may move on to the point made by the noble and learned Lord, Lord Fraser of Carmyllie. Agriculture is devolved, so that would be a general responsibility of the parliament. It could request Scottish ministers to come before it and speak about the common agricultural policy. But the common agricultural policy is a matter for the United Kingdom Parliament. However, having said that, I certainly expect that the Scottish executive would make representations to the United Kingdom Parliament. It would be appropriate for the Scottish parliament to be able to ask Scottish ministers about their position on the common agricultural policy. Of course, the parliament could not refuse to implement the common agricultural policy, but it is clearly a matter which it could debate.
With those explanations, I hope I have assisted noble Lords to understand what we are about in this clause.
§ Lord Mackay of Drumadoon
My Lords, I am grateful to the noble and learned Lord. His further remarks confirm my initial impression that the amendments are designed to broaden the scope of the work which takes place before committees of the parliament and the parliament itself without in any sense increasing the statutory functions of the executive or the parliament. In that respect, the amendments fall to be welcomed. Most of us are united in the view that the parliament should work as successfully as possible. The elimination of any artificial limitations on its work is to be welcomed. I therefore do not insist on my Amendment No. 101A to Amendment No. 101.
§ Amendment No. 101A, as an amendment to Amendment No. 101, by leave, withdrawn.
§ [Amendments Nos. 102 to 103E not moved.]
§ On Question, Amendment No. 101 agreed to.
§ Lord Hardie moved Amendments Nos. 104 to 108:
§ Page 12, line 12, leave out ("That power may be exercised") and insert ("Such a requirement may be imposed").
§ Page 12, line 15, leave out ("The Clerk shall give") and insert ("A requirement under section (Power to call for witnesses and documents) shall be imposed by the Clerk giving").
§ Page 12, line 18, leave out ("matters relating to") and insert ("subjects concerning").
§ Page 12, line 20, leave out from ("particular") to end of line 21 and insert ("subjects concerning which they are required").
§ Page 12, line 34, leave out ("relating to") and insert ("concerning").
§ On Question, amendments agreed to.1926
§ Lord Hoyle
My Lords, before we move to the Statement on welfare reform, I should like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.