§ 8.26 p.m.
§ Baroness Ramsay of Cartvale rose to move, That the draft order laid before the House on 7th July be approved [25th Report from the Joint Committee].
§ The noble Baroness said: My Lords, this is an order which will be made under Section 105 of the Scotland Act 1998. It is the third of its kind. Two extensive orders were made under this power last year ahead of devolution.
§ Section 105 enables existing enactments or instruments to be amended as necessary in consequence of the Scotland Act. Given the wide implications of devolution, it was impractical to make provision at the time for every modification of every enactment necessary as a result of that Act. Section 105 enables further modifications to be made as the need arises.
§ This order deals with all the examples identified over the past year where a consequential modification is necessary. In some cases this has simply been a matter of realising that a power which may have to be 665 exercised at some point in the future has not been adapted to work properly where it has been devolved to Scottish Ministers. In one or two cases the need to exercise a power has been identified and the provisions in this order are intended to enable devolved powers to be exercised or exercised more effectively. There are also examples where the purpose is to include statutory bodies set up by Acts of the Scottish Parliament within the effects of UK legislation on, for example, disability discrimination.
§ A number of the entries relate to the procedure in the Scottish Parliament for devolved secondary legislation subject to affirmative resolution procedure, particularly where the statute requires the approval to be obtained within a certain number of days. As matters stand before the current order, largely as a result of different terminology between the Scottish Parliament and Westminster, there are cases where the period allowed for parliamentary scrutiny continues to run during the parliamentary Recess. This means that an order can fall because the Scottish Parliament has not been sitting to pass the required affirmative resolutions. The current order puts the Scottish Parliament procedure on a similar basis to that obtaining here in that the clock marking the period within which affirmative resolutions are required will stop ticking during recess.
§ Another entry relating to subordinate legislation procedure is that for the Human Rights Act 1998. Section 10 of that Act provides for Ministers to make remedial orders where statutory provisions are found to be incompatible with the European Convention on Human Rights. It will be possible for these orders to be made in relation to devolved matters by the Scottish Ministers. Schedule 2 to the Human Rights Act regulates the parliamentary procedure for these orders. That procedure is more complex than the usual statutory instrument procedures. Section 118 of the Scotland Act does not do all that is necessary to translate the parliamentary procedure for these orders so that it operates correctly in the Scottish Parliament. A similar procedure for deregulation orders in the Deregulation and Contracting Out Act 1994 was amended by an earlier order under Section 105.
§ Another group of entries in the order extend references to the term "enactment" so that they include references to Acts of the Scottish Parliament where that is necessary. The general rule is that references to "enactment" in Acts of the UK Parliament do not include Acts of the Scottish Parliament or instruments made under Acts of the Scottish Parliament. But in some cases it is desirable that references to "enactment" should include Acts of the Scottish Parliament so that this Parliament's Act operates properly. Amendments of that type have been made to the Equal Pay Act, the Sex Discrimination Act, the Race Relations Act and the Requirements of Writing (Scotland) Act.
§ Noble Lords will perhaps be relieved that I do not intend to go into the detail of each entry in the order. There are some 23 modifications. However, if noble Lords have questions on any specific entries I will be 666 happy to assist. I hope noble Lords will have no difficulty in supporting the order, which is aimed at the effective operation of this Parliament's pre-existing legislation in Scotland following devolution. I commend the order to the House.
§ Moved, That the draft order laid before the House on 7th July be approved [25th report from the Joint Committee].—(Baroness Ramsay of Cartvale.)
§ 8.30 p.m.
§ Baroness Carnegy of Lour
My Lords, I am sure that we are all very grateful to the noble Baroness, Lady Ramsay of Cartvale, for what I am sure, when I read it, will be a very clear explanation of what the order does. I am bound to say that until she spoke I found it extremely difficult to follow. As I listened, some points were cleared up and probably more will be cleared in my mind when I have read what she said. But I should like to put in a plea—it follows from what my noble friend said earlier—about the Explanatory Note. It is very difficult to know from the Explanatory Note what is happening. The Explanatory Note simply repeats what the order itself says. In fact it is very difficult from that to know what to do, because I think I am right in saying that the order amends 21 Acts of Parliament. Am I supposed, as a humble, simple Back-Bench Peer, to look up 21 Acts and see precisely what happens in each case in so far as concerns the law affecting Scotland? If there is a common thread running through all the changes in those 21 Acts, it would have been helpful to have a paragraph explaining precisely what that change was. I trust the noble Baroness and assume that that is precisely what is happening. But next time an order similar to this is before the House I hope that she will ask the Secretary of State for Scotland to provide a rather fuller explanation. That would be enormously helpful.
Paragraph 21 of the order relates to the Human Rights Act, to which the noble Baroness referred. Do I understand that that Act, which was passed only in 1998, is being altered simply to meet the existing situation, or will the Scots Parliament alter Acts relating to Scotland once those Acts have been found to be outwith the European Convention on Human Rights and the Human Rights Act? Is the procedure actually changing? I rather suspect that it is. That it is not going to happen in the House of Commons and the House of Lords any more but in the Scots Parliament. It would be helpful to know whether that is true. I may be misreading that. I am not a lawyer. It is quite difficult for me to follow. That is my main point.
My other point is whether for years ahead we will go on noticing in the statute book things which require to be changed? What will happen if we notice them after we are required to make the change? Will that not be a problem? What will happen if we come across something in some Act that was passed by Westminster and we find that it simply is not valid because of the existence of the Scots Parliament? There will have to be an immediate order, I suppose, to put that right. I have two questions. First, has the procedure under the Human Rights Act actually changed when legislation which affects Scotland is 667 found to clash with the Human Rights Act? Second, are we going to go on having to change Acts of Parliament and what will happen if we find quite suddenly we have to do that and that the Act is not valid when we come upon the problem?
§ Lord Mackay of Ardbrecknish
My Lords, I echo the point made by my noble friend Lady Carnegy of Lour about the Explanatory Note. I think the Minister was in her place when I made the point earlier. This one is markedly worse because it does not explain the bulk of the text. That relates, I think my noble friend said, to 21 Acts of Parliament and makes amendments to them. Frankly, choosing at random paragraph 10, without going to the Fisheries Act 1981 one would not have a clue as to what was being done. That is what ought to be explained. The Explanatory Note tells us why things have to be changed. My noble friend and I understand and appreciate that. But what we should have explained to us is what the changes are in each individual paragraph. I wonder if the next time—and there will he a next time—the Minister comes forward with an order under the precommencement powers we will have an Explanatory Note which actually explains what has been changed and why it needs to be changed. I can understand one or two items. Clearly, the prorogation and dissolution of Parliament had to be dealt with by putting in the Scottish Parliament. I can understand that. The recess point I can understand. But the Fisheries Act item, I am afraid, would be quite beyond me unless I went to the Library and looked up the Act of Parliament. That is perhaps asking people to go a bridge too far. I hope the Minister appreciates that. I am not necessarily expecting an answer about the Fisheries Act 1981, but I hope the Minister will take the point away and next time perhaps her officials can actually explain the changes made to the legislation. That is a major point. I hope that the Minister will take it on board.
My noble friend Lady Carnegy referred to paragraph 21. As my noble friend was speaking it occurred to me to question the Minister on the concept of a remedial order. I do not know if the Minister recalls—if she does not, I am happy to have a letter about it—the case recently where a lady was charged with being drunk in charge of a car and had not actually been in a car. She had been walking with an unsteady gait around a supermarket car park. She admitted to having driven the car to the car park. She was charged. However, the case was thrown out because the Road Traffic Act under which she was obliged to admit that she had been the driver of the car was incompatible with the ECHR. The Minister clearly remembers the case. I am a little unsighted about it from thereon in.
All I remember is that when I asked the question here I was assured that the Lord Advocate was still considering whether to appeal. I am not sure whether he has appealed. Perhaps the Minister can tell me. I think there was some doubt when I asserted that the problem would become larger and might affect speeding cases. Last week I read in the papers that indeed it did affect speeding cases, but south of the Border. It is becoming a very large problem. Will the Scottish Parliament be able to bring forward a 668 remedial order to sort out the Road Traffic Act so that this problem did not occur in Scotland and people who were caught speeding by speed cameras could not get away with it by pleading the ECHR and saying, "I am not going to incriminate myself"?
I appreciate that that is rather a fast ball to bowl on the basis of the order. But I have known the Minister over many years and I am absolutely confident that she will be able to give me an answer. If my confidence is misplaced, I should be happy to accept some information about these matters in writing.
§ Lord Thomas of Gresford
My Lords, the former Secretary of State for Wales, Mr Ron Davies, in a telling phrase, said that devolution is a process and not an event. Here today we are seeing another example of that process continuing.
As a frequent visitor to Scotland, I am heartened to see how the Scottish Parliament is beginning to forge its own character and its own culture in a way that is entirely distinct from Westminster. However, I appreciate the difficulties that it must have when it is faced with the maze of primary and subordinate legislation that already exists. I join in the expressions that have passed from other noble Lords in a desire for clarity. It would be helpful if the Minister could tell us whether there is any proposal to produce in a loose-leaf form the legislation as it has been amended which affects Scotland. It will take a great deal of time for these Acts of Parliament to be amended and published. Many other amendments will need to be made by further consequential orders. As each comes to this House for approval, so it would be helpful if there were some means of bringing it before the legislators who are carrying our their duties in Scotland.
On the Human Rights Act, it is entirely appropriate that if a breach of the convention is found in Scotland which affects legislation within the devolved competence of the Scottish Parliament, it should be for the Scottish Parliament to put it right. In answer to the noble Lord, Lord Mackay of Ardbrecknish, if legislation is to be passed by the Scottish Parliament, it will have to comply with the convention. Where a breach of the convention has been found, it will be interesting to see whether the Scottish Parliament will attempt to revert to the previous position, as the noble Lord suggested it might.
From these Benches, we wholly welcome the production of this order. In the nature of the process, there will be more to come; and we shall welcome them when they arrive.
§ Baroness Ramsay of Cartvale
My Lords, I am grateful for the welcome that has been given to the order by all three noble Lords who have spoken. I shall try to deal with specific points that were raised.
The noble Baroness, Lady Carnegy, asked about the Explanatory Note and the noble Lord. Lord Mackay of Ardbrecknish, echoed her points. There is no reason why Explanatory Notes cannot be longer. The note is intended to be a short, concise statement of the substance and purport of the instrument and 669 one accessible to the layman—that is the very point made by the noble Baroness. The kind of note that is attached to such orders appears to be based on convention. If Parliament were to ask for a different style of note or for fuller notes, there is no obvious reason why that could not be provided. If noble Lords feel that we could learn from the example to which the noble Earl, Lord Mar and Kellie, who, unfortunately, is not in his place today, often refers—that the Explanatory Notes attached to papers in the Scottish Parliament are a great deal fuller—I am sure that the relevant authorities in both Houses could take the matter forward rather than it being a matter for the Government or being left to individual Secretaries of State.
The noble Baroness asked whether there will be a need for further similar orders. In a way, the noble Lord, Lord Mackay of Ardbrecknish, almost answered her question by saying that there is almost bound to be such a need. We do not anticipate any orders at the moment, although one can never say never. The wide implications of the devolution settlement mean that we cannot rule out the possibility of further orders. That is why Section 105 of the Scotland Act enables further modifications as the need arises. That is why that section was included in the Scotland Act. However, as I said in my opening remarks, the order is a culmination of a whole year of looking at various examples that came up where legislation was needed. We have now achieved a significant harvest of all the likely necessary actions.
The noble Baroness, Lady Carnegy, and the noble Lord, Lord Mackay of Ardbrecknish, asked about the Human Rights Act. The Scottish Parliament will be able to amend its own Acts to make them comply with the European Convention on Human Rights. The noble Lord, Lord Mackay, asked whether the Scottish Parliament could amend the Road Traffic Acts. The answer is no. The Scottish Parliament does not have devolved competence on the subject matter of the Road Traffic Acts. The noble Lord referred to a specific case. In lawyers' jargon it is known as Margaret Anderson Brown v. Stott (procurator fiscal). Petitions of appeal have now been lodged with the Judicial Committee of the Privy Council and the Advocate General has intervened to represent the United Kingdom interest. I am advised that further discussion of the case could be prejudicial to further legal proceedings. Therefore, I should not take the matter any further.
I hope that I have dealt with all of the points raised by noble Lords.
§ Baroness Carnegy of Lour
My Lords, the noble Baroness said that under the Human Rights Act the Scots Parliament will be able to amend its own Acts. I thought that that was the case all along—ever since we legislated two years ago. I wonder whether the Scots Parliament will now be able to amend Acts of the Westminster Parliament which apply to Scotland. That would mean that the provisions of Acts passed by the Scots Parliament would diverge from those which 670 remained at Westminster. Is the Scots Parliament still amending only its own legislation, or is it amending that which applies to Scotland but has been made at Westminster?
§ Baroness Ramsay of Cartvale
My Lords, as I understand the position, the Scottish Parliament can only amend Acts of its own. It cannot amend Acts passed at Westminster. It is Westminster which will amend Westminster Acts. That is why we have Section 105. It is only with regard to devolved issues that the Scottish Parliament can amend legislation to make it fit the European Convention on Human Rights.
§ Baroness Carnegy of Lour
My Lords, I should like to pursue this point because we need to be clear. I have the Human Rights Act in my hand. I am trying to see what precisely paragraph 21 does. The noble Baroness referred to devolved matters, but a good deal of Westminster legislation applies to devolved matters which are now the responsibility of the Scots Parliament. Can those pieces of legislation be amended by the Scots Parliament? If not, I cannot see why this provision is there.
§ Lord Thomas of Gresford
My Lords, I believe that an answer to the noble Baroness's question may lie in the fact that this particular consequential modification order is precisely the kind of order that would be brought forward if there was found to be a breach of the Human Rights Act. The primary legislation of this Parliament would be amended by means of an order of this kind. That seems to me to be the sensible way of approaching this. It would not be necessary to return to the original Act of Parliament which has been said to be in breach in order to make the changes.
§ Baroness Ramsay of Cartvale
My Lords, that is the case. I do not know whether I have made matters worse or better for the noble Baroness, but Section 10 of the Human Rights Act 1998 provides for the making of remedial orders where statutory provisions are found to be incompatible with the ECHR. It would be possible for these orders to be made in relation to devolved matters by Scottish Ministers or Her Majesty in Council by Order in Council on the recommendation of the First Minister.
Schedule 2 regulates the parliamentary procedure for these orders. It regulates the parliamentary procedure for the orders in relation to the 21 Acts. Section 118 of the Scotland Act does not do all that is necessary to translate the parliamentary procedure for these orders so that it operates correctly in the Scottish Parliament. I hope that that has helped to clarify matters.
§ Lord Mackay of Ardbrecknish
My Lords, that is most helpful and I hope that my noble friend is satisfied. However, one point has occurred to me. I understand that any legislation passed by this Parliament in the past affecting a devolved matter which is found to be in breach must be changed by the Scottish Parliament. My question is rather difficult, 671 and I do not believe that I received a full answer from the Government when we debated the devolution legislation. I shall try again, having been reminded of the matter.
What happens if the Scottish Parliament declines? I understand that the United Kingdom is a party to the European Convention and it would be the UK that would be in breach. If the Scottish Parliament declined, would the UK Parliament take the matter into its own hands and proceed to amend the legislation?
§ Baroness Ramsay of Cartvale
My Lords, the noble Lord has suggested an extremely hypothetical situation and I do not intend to answer it. However, should the noble Lord wish to take expert opinion on it, I shall do so on his behalf and write to him.
On Question, Motion agreed to.