Scotland Act 1998 (Modifications of Schedule 4) Order 2000

HL Deb 29 June 2000 vol 614 cc1146-9

7.37 p.m.

Baroness Ramsay of Cartvale rose to move, That the draft order laid before the House on 25th May be approved [21st Report from the Joint Committee].

The noble Baroness said: My Lords, this debate concerns the draft Scotland Act 1998 (Modifications of Schedule 4) Order 2000. Like most Scotland Act orders which have come before this House since last summer, this one is primarily a tidying exercise.

The context of the order is that Schedule 4 to the Scotland Act forms part of the definition of the legislative competence of the Scottish Parliament. It places restrictions on the extent to which certain legislation, including the Scotland Act itself, can be modified by the Scottish Parliament.

Section 30 of the Scotland Act provides a mechanism whereby Schedule 4 can be modified by an Order in Council, subject to the approval of both the UK and Scottish Parliaments. That allows the boundary of legislative competence to be adjusted or clarified.

The purpose of the order is to clarify the boundary in respect of two matters: pensions and the Scottish Consolidated Fund. When the Scotland Act was drafted, the concept of pension sharing had not developed sufficiently to enable the Act to deal with it fully. The position is now settled following the passing of the Welfare Reform and Pensions Act 1999. As a consequence, it has now become necessary to amend Schedule 4 to the Scotland Act to bring it into line.

General pensions law and, in particular, the law which deals with the sharing of rights under pension arrangements on divorce are reserved matters. Nothing in the order changes the extent of the reservation which is set out in Schedule 5 to the Scotland Act. This order is concerned with the complex rules in Schedule 4 which determine the extent to which the Scottish Parliament can amend rules of Scots private law even though they relate to reserved matters. Paragraph 2(1) states that an Act of the Scottish Parliament cannot amend the "law on reserved matters". That includes the aspects of pensions law reserved by Schedule 5. Sub-paragraph (3) relaxes this restriction for rules of Scots private law. Together with Section 29(4), this allows the Parliament to modify Scots private law as it applies to reserved matters, as long as the purpose of the provision is to make the law in question apply consistently to reserved and non-reserved areas.

However, certain rules of Scots private law are protected from amendment if they are special to a reserved matter or are listed in sub-paragraph (3). The order extends the list of protected provisions of Scots private law to include pensions obligations introduced by the 1999 Act.

Following the chain of exceptions to exceptions, the inclusion of the new entries to Schedule 4 ensures that no modification to these rules of Scots private law can be made by the Scottish Parliament. In practical terms, we do not expect the amendments made by this order to have any great effect. They do not change pensions law or Scots private law. Nor is it likely that the Scottish Parliament would wish to legislate in this area, which is already pretty well the preserve of the UK Parliament.

Schedule 4 was intended to cover pension sharing on divorce. The order simply ensures that its terms fit with the Welfare Reform and Pensions Act 1999, now that the concept has been firmed up.

The second aspect of the order relates to the Scottish consolidated fund. Under Schedule 4(4) of the Scotland Act 1998, the Scottish Parliament cannot in general amend the Scotland Act. That is hardly a great surprise. However, it was recognised that there are some aspects of the Scotland Act that it makes sense to allow the Scottish Parliament to amend, so provision is made for this restriction to be relaxed in specified instances.

One instance is to allow the Scottish Parliament to modify some of the references to the Scottish consolidated fund. The purpose is to add one further type of provision to the areas that the Scottish Parliament may legislate to amend in the 1998 Act.

At present, and subject to certain exceptions, the Parliament can legislate to amend provisions in the Act that charge sums on the fund

or require sums to be paid from or to the fund".

However, the Scottish Parliament cannot at present legislate to make amendments to the provisions of the Scotland Act that provide for expenditure to be "payable out of" the Scottish consolidated fund.

There are two provisions in the 1998 Act that provide for sums to be "payable out of" the Scottish consolidated fund, which the Scottish Parliament cannot amend. The first is Section 21(6), which provides that any expenses of the Scottish parliamentary corporate body shall be payable out of the fund. The second is Section 51(5), which, in effect, provides that the salaries and allowances of the Scottish Administration civil servants are payable out of the fund.

Some noble Lords may ask what the distinction is between sums "payable out of" and sums "charged on" the Scottish consolidated fund. The answer is that "charged on" means that money has to be paid out of the fund without any further approval, whereas "payable out of" means that money can be paid out of the fund only if the Scottish Parliament specifically agrees the expenditure, normally by its inclusion in a budget Act.

The upshot of all this is that under the current legislation, the Scottish Parliament cannot legislate to put in place alternative arrangements, such as having some part of the Administration staff or of the affairs of the Scottish Parliament corporate body funded directly from the proceeds of trading.

It was never intended that those parts of the Scotland Act should be put beyond the reach of the Scottish Parliament. The order will allow the Scottish Parliament to amend them if it wishes. This is purely a tidying exercise. There are no plans for the use of the new power, but the order will allow the Scottish Parliament greater flexibility for the future. As I said at the outset, this order is concerned more with good housekeeping than with constitutional policy. On that basis, I hope that noble Lords will feel able to support it.

Moved, That the draft order laid before the House on 25th May be approved [21st Report from the Joint Committee].—(Baroness Ramsay of Cart vale.)

7.44 p.m.

The Earl of Mar and Kellie

My Lords, I believe that this is the ninth time that we have been asked to approve a Scotland Act order. That is not a complaint.

The order makes two clarifying amendments, which it is not difficult to approve. It is right that any modification of the significant Schedule 4 should require the so-called type A procedure of approval by both Houses of the United Kingdom Parliament and by the Scottish Parliament, but that highest level of scrutiny is here being applied to clarifications of two substantive elements of the schedule, rather than to substantive modifications.

I certainly approve of last year's extension of pension sharing on divorce into the law of Scotland and I understand the logic of expanding paragraph 2(3)(b) by two extra sentences to make it clear that the new elements of Scots law are reserved to the United Kingdom Parliament.

Similarly, Article 3 makes a slight increase in the powers of the Scottish Parliament. No one will be surprised to hear that I instantly approve of any such proposal. In this case, we are being asked to approve the opportunity for the Parliament to legislate changes to the way in which money may be paid out of the Scottish consolidated fund. It is curious that that modification is being proposed at this time, when the Scottish Executive has no plans to implement those soon to be acquired powers. However, that lack of pressing need suggests that the modification is pure in intent and is not being brought forward out of expediency.

I have three quick observations to make about the Scottish devolutionary process and its relationship to this House. First, this House is not serving itself well in its legislative work for Scotland by the lack of awareness and availability of the Bills and Acts of the Scottish Parliament. I acknowledge that this is a new phenomenon, but we should be more familiar with what the Scottish Parliament is doing and how that may merge with legislation in Westminster. Perhaps the existence of the Parliament in Northern Ireland between 1922 and 1972 is a precedent.

Secondly, this House should be made aware at least of Royal Assent being granted to an Act of the Scottish Parliament. I believe that there have been eight so far. Thirdly, I want to complain about the minimalist explanatory note attached to the draft order. Comprising four sentences, it compares unfavourably with the four pages issued to Members of the Scottish Parliament by the Scottish Executive. My honourable friend Sir Robert Smith also raised that issue when the draft order was before the First Standing Committee on Delegated Legislation.

This Parliament must work hard to become the new Union Parliament and, in so doing, re-find its place in the evolving nature of the British Union.

7.48 p.m.

Lord Mackay of Ardbrecknish

My Lords, the noble Baroness, Lady Ramsay of Cartvale, will be pleased to hear that I do not have much to say about the order. It is important that we are given an opportunity to study the orders arising from the Scotland Act through the affirmative resolution procedure. I am not sure whether the noble Earl, Lord Mar and Kellie, was complaining about that. I have taken advice from people who understand these matters and they seem to be satisfied that it was sensible.

I have a small interest in pension splitting on divorce, because I was responsible for the Green Paper and the subsequent White Paper that set the process in train. I am perfectly happy with the order. It would not have been sensible for Scotland to be left out on a limb. I hope that I do not embarrass the noble Baroness by saying that she has my support on the order.

Baroness Ramsay of Cartvale

My Lords, it is with great delight that I receive the support of both the noble Lord, Lord Mackay of Ardbrecknish and the noble Earl, Lord Mar and Kellie. I very much appreciate their welcome of this measure which, as I have said, is very much a tidying up exercise.

On Question, Motion agreed to.