§ 7.25 p.m.
§ Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 12th December 2002 be approved [6th Report front the Joint Committee].
§ The noble Lord said: My Lords, as is usual with orders of this kind, copies of the Explanatory Memorandum are available in the Printed Paper Office.
§ The order before the House executively devolves responsibilities in a number of separate areas, giving additional responsibilities to Scottish Ministers. The Scotland Office has liaised between the relevant officials in the Scottish Executive and officials in the Department for Transport, the Lord Chancellor's Department and the Home Office. Policy on these issues has been agreed by all parties.
§ Noble Lords may also like to note that, where possible, the Government see advantages in laying omnibus orders under particular sections of the Scotland Act which contain two or more different policy areas. This maximises the efficient use of parliamentary time without, of course, lessening the opportunities to scrutinise the orders, either in your Lordships' House or in another place.
§ The draft order was laid before both Houses on 12th December. It was considered by the House of Commons Standing Committee on Delegated Legislation on 22nd January; it was looked at by the Justice 1 Committee of the Scottish Parliament and agreed to by the Parliament itself on 23rd January. Subject to parliamentary approval, it will be made at the Privy Council in February.
§ Before I deal with the substance of the draft order itself, it may be helpful to noble Lords if I say a few words about the power in the Scotland Act under which it is proposed to make this order and comment on some of the other powers in the Act that can be used to vary the devolution settlement.
§ The Scotland Act contains a number of ways in which the devolution settlement can be amended, including transferring or giving powers to the Executive to carry out a particular function or duty among other things. The Government see devolution as a process that requires monitoring and variation and always envisaged that the devolution settlement would be varied in ways that improve efficient and responsive government—not least because adjustments are required for legislation passed after the Scotland Act which often need to be implemented by secondary legislation. For instance, the order refers to Acts passed in 1999 and 2000.
§ This is not to say that the changes proposed in the draft order are in any way fundamental. But if, for example, it would be more appropriate for a function 629 in or as regards Scotland to be provided by the Executive rather than the UK Government, it seems sensible to provide the Executive with the power to carry it out. Equally, other sections of the Act give order-making powers in relation to cross-border public authorities or for agency arrangements, where the UK Government might provide a function performed in or as regards Scotland on behalf of the Executive or vice versa. Noble Lords will therefore see that Scotland Act orders are not, in this order, bringing fundamental constitutional matters to the attention of Parliament. They are part of the on-going management of the boundaries of the devolution settlement. They follow identification of ways in which services can best be delivered north and south of the Border and, indeed, across it, or to implement new projects or policies as they apply under the devolution settlement.
§ Section 63 of the Scotland Act confers a power on Her Majesty to provide by Order in Council for any statutory or non-statutory function of a UK Minister of the Crown—so far as they are exercisable in or as regards Scotland—to be exercisable by the Scottish Ministers instead of concurrently with the UK Minister of the Crown. This mechanism is more commonly known as executive devolution.
§ Noble Lords will notice that orders made under Section 63 can apply to matters exercisable by the Scottish Ministers either instead of or concurrently with UK Ministers. They can also provide for UK Ministers to exercise a function only with the agreement of, or after consultation with, the Scottish Ministers—although this power is not being used in the draft order currently before the House.
§ Thus, orders under Section 63 include powers enabling the Government to transfer a power to the Scottish Ministers or to give them the power to carry out a function while the UK Secretary of State retains the power to carry it out as well. This flexibility is designed to ensure that the best way of providing a service or maintaining a responsibility can be found, based on the particular circumstances of each proposal.
§ The order before the House contains examples of powers both being transferred and running concurrently. It authorises the transfer of functions under certain provisions of the Taxes Management Act 1970 and the Access to Justice Act 1999, the Rehabilitation of Offenders Act 1974 and the Transport Act 2000. In respect of the function under the Transport Act 2000, which relates to the payment of a transport grant, the power will be exercisable concurrently by the Scottish Ministers and the Secretary of State for Transport. So the Secretary of State will continue to be able to exercise that function notwithstanding this order. With regard to the relevant functions under the Taxes Management Act 1970 and the Access to Justice Act 1999, and the Rehabilitation of Offenders functions, the effect of the order will be for the relevant functions to be exercisable, in or as regards Scotland, by the Scottish Ministers instead of by a UK Minister.630
§ The order transfers to Scottish Ministers the power to commence in Scotland Sections 101 to 103 of the Access to Justice Act 1999. This will have the effect of amending the Taxes Management Act 1970. The amendments concern immunity of and indemnity for general commissioners of income tax and their clerks in relation to legal proceedings arising from the execution of their duties. The amendments have already been implemented in England, Wales and Northern Ireland, where general commissioners are appointed by the Lord Chancellor. As the power to appoint general commissioners in Scotland has already been executively devolved to the Scottish Ministers, it is appropriate for them to implement the changes there, once the necessary powers have been given to Scottish Ministers by this order. The order also transfers to the Scottish Ministers powers under these amendments to make associated regulations.
§ What this part of the regulations is not concerned with is, of course, general taxation—which is very much a reserved matter. It relates solely to the operation of the immunity and indemnity for the general commissioners and their clerks provided for by the UK Parliament.
§ The order before the House also makes provision in relation to the Rehabilitation of Offenders Act 1974. This seeks to make life easier for people who have been convicted of a criminal offence and who have not re-offended. If someone does not receive a further conviction by the end of the prescribed rehabilitation period, then the conviction becomes "spent". In general, this means that such people do not have to declare it and they cannot be prejudiced by it.
§ Sections 4(4) and 7(4) of the Rehabilitation of Offenders Act 1974 allow subordinate legislation to be made that excludes or modifies the application of, or makes exceptions to, the regime for rehabilitation of offenders under the 1974 Act.
§ The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended) is made under Sections 4(4) and 7(4) of the 1974 Act. It sets out categories of employment involving a particular level of trust to which the 1974 Act does not apply and for the purposes of which convictions never become spent.
§ As the rehabilitation of offenders generally is devolved, the transfer of functions by the order gives certainty to the exercise of powers by the Scottish Ministers to make or amend the exceptions order under the Rehabilitation of Offenders Act. The Scottish Ministers will therefore have the power to amend all aspects of the exceptions order, even if an amendment may have an impact on a reserved area, such as financial services. The Home Office will continue to liaise with the Scottish Executive to ensure consistency, but this order allows Scottish Ministers to amend the exceptions order for Scottish purposes.
§ Noble Lords will want to know that any impact upon a reserved area is negligible. In the example I gave of financial services, for instance, the purpose of the exceptions order is to limit the protection given to those convicted of certain offences. Scottish Ministers would therefore be able to amend the exceptions order, 631 for example, in relation to financial services occupations. It does not enable Scottish Ministers to amend legislation on financial services or other reserved areas.
§ In addition, Article 3 of the order transfers to the Scottish Ministers the power under Section 272 of the Transport Act 2000 to make certain awards of financial assistance to shipping services. As I have already explained, this power would be exercisable concurrently with UK Ministers. So the power can be exercised by the Scottish Ministers and the Secretary of State independently of each other.
§ Under current legislation the Scottish Executive is able to award freight facilities grants for water-borne services which begin and end in Scotland, but have no power to do so where one end of the service lies elsewhere within the UK or abroad.
§ The power contained in the order will principally enable Scottish Ministers to award freight facilities grant awards for short sea shipping movements that do not begin or end in Scotland. The additional function will thus enable the Scottish Executive to develop an integrated and more sustainable transport system for Scotland by, in this instance, encouraging the removal of heavy goods vehicles from Scottish roads. In exceptional circumstances, it is possible to envisage payment of a grant for a movement that both begins and ends outside Scotland, such as movements that take in Scotland as part of a ship's journey, provided it satisfies the Section 63 criteria of being "as regards" Scotland. However, each case would, of course, be judged on its own merits.
§ This is a discretionary grant scheme. It is understood from the Executive that any increase in costs associated with the transfer of powers can be catered for within existing resources. I beg to move.
Moved, That the draft order laid before the House on 12th December 2002 be approved [6th Report, from the Joint Committee].—(Lord Evans of Temple Guiting.)
§ The Duke of Montrose
My Lords, I thank the Minister for giving us that quick canter back through the Scotland Act 1998, which brings back a vision of late nights and long exchanges. He told us about the various Acts that are being effected. With regard to the powers being transferred from the 1970 and 1999 Acts, was the power to appoint general commissioners devolved to the Scottish Executive at the time of the Scotland Act? Is that why the 1999 measures are not implemented in Scotland? Was the lack of those powers in Scotland discussed when they were implemented in England and Northern Ireland? Is it likely to be necessary to devolve any other powers under the Access to Justice Act 1999, when Scotland has not benefited from its provisions?
Presumably, since the Act of Union, if one is accused of cheating on one's taxes in Scotland, one has been liable to be tried in a Scottish court. However, devolution has introduced a whole new factor. Does the general commissioner of income tax have any 632 immunity from prosecution in Scotland at present? If not, how many prosecutions have there been in the past 25 years?
I turn to the amendment to the Rehabilitation of Offenders Act 1974, which allows exceptions to the ruling on criminal records. It appears to have a particularly interesting background. The Minister told us that some additional exemptions have already been passed for England, Wales and Northern Ireland. The Scottish Executive issued a consultation paper in December, showing the amendments that they would like in this field. It contains a list of the professions that they would like to be added to those who can insist on seeing the full range of a person's convictions when considering that person for an appointment. The consideration of the matter is already well advanced. It seems that, when the lack of powers was recognised, there was a fairly mad scramble to get the proper powers in place.
It might seem reassuring to see, in the Explanatory Note, that the instrument has no financial effect on the UK Government departments. However, presumably any increase in the numbers who can require that additional information will require an extra capability by those who need to supply it. That is likely to be an additional expense for the Scottish Executive. Has the Minister's department made any assessment of the cost? If the matter does not come under him, what assessment have the Scottish Executive made?
I return to the Access to Justice Bill. The drawback is that once the provision is in place, the Scottish Executive, in paying the expenses of the commissioners and their clerks arising out of the execution of their duties or when the Scottish court so order it, will land up having to pay towards the collection of a UK tax. Is it possible for the Scottish Executive to limit that in any way?
With regard to the amendment to the Transport Act 2000, considerable discussion was had in another place about the debate that took place last May regarding the ferry service between Scotland and Northern Ireland. That debate happened around the time of the introduction of the service from Rosyth to Zeebrugge. No change was made at that time. Have any new factors come to light since then that have precipitated the introduction of the measure?
Another question arises from the statement that the powers remain with the UK ministry as well as with the Scottish ministry. If either makes a ruling, must payment come from the Government in the UK and/ or from the government in Scotland?
§ 7.45 p.m.
§ The Earl of Mar and Kellie
My Lords, I start by saying that it is good to see the noble Duke, the Duke of Montrose, back at the Dispatch Box. I am also grateful to the Minister for his comprehensive explanation of the order.
This is an eclectic order, as it deals with three totally unconnected issues. But that is the stuff of such constitutional measures, and it satisfies my instinct for the devolution of power and the increasing autonomy 633 of Scotland. However, although the three measures are all devolutionary in trend, one caused me to look at it more than once.
The transfer of the rehabilitation of offenders suspension measure was not the one that worried me. The former social services worker in me recognises the increasing and widening need for people in positions of trust to be subject to a full disclosure of their previous convictions, within a confidential setting.
Nor did the power to make maritime and inland waterway freight facilities grants worry me. It is eminently sensible for suitably leveraged capital grants to be made available to create harbour facilities and so divert freight from multiple HGVs on the road network into coastal shipping. In doing so, we will make a further stab at meeting our Kyoto and other environmental targets. Indeed, the power being devolved seems especially generous, allowing the Scottish Executive to build facilities even furth of Scotland as well as within.
The order seems to complement the other recent order, in which we were asked to devolve power to subsidise shipping services to other places outwith Scotland, such as the Campbeltown to Ballycastle ferry. We must watch with interest to see how the new ferry service from Rosyth to Zeebrugge establishes itself. Similarly, the new freight service from Invergordon to Orkney will remove HGVs from that difficult northern section of the A9 up to Scrabster. Even more esoteric is the possibility of assisting with the service offered in Shetland by the Norrena on the Denmark-Shetland-Faroe Islands service.
Finally, I come to the power, or the duty, to pick up the tab for the general commissioners. This worries me, when I consider the worst case scenario. It seems to be a case of the devolution of expenditure rather than policy. I acknowledge that Scottish Ministers appoint the general commissioners, but they do not have any control over income tax policy, as other noble Lords have said. It sounds like a case of taxation without representation or, at least, expenditure without a handle on policy.
When we discussed the issues yesterday in Scotland, people suggested to me that the general commissioners could lose a class action, perhaps from a particular point of principle, with the consequence of a large number of taxpayers having valid claims against them. Does the Minister agree that, in such circumstances, the UK Treasury should make contingency funds available, bearing in mind that Scottish Ministers have no say in taxation policy? I do not see why the Scottish block grant should pick up the tab on that issue.
The general commissioners are not the only ones who may increase the Executive's expenditure. The marine freight facilities grants will cost money, but that will be controllable expenditure drawn on a deliberate budget. The unpredictable nature of the indemnification of the general commissioners may be a real problem to the Scottish Parliament.
In conclusion, I like two out of three. If this House had greater powers over secondary legislation, I would be seeking to amend the order by deleting the general 634 commissioners issue. However, I shall stop dreaming and revert to reality and give this order a two-thirds blessing.
§ Baroness Carnegy of Lour
My Lords, we must congratulate my noble friend and the noble Earl on having made so much of what seemed an incomprehensible order when I first looked at it. The Explanatory Note attached to it told me nothing. I could not understand it. However, when I went to the Explanatory Memorandum—both have been supplied—I understood much better. We must thank the Government for producing that, because it explains what is going on.
I apologise to the Minister. I missed the first minute of his speech. I was at an all-party group upstairs. Everything happened so fast that I could not slide down the banisters quickly enough. The part of his introduction that I heard about the general situation and how the developing intricacies of devolution to Scotland are being met was extremely helpful. The Government are increasingly able to explain what they are trying to do when making such arrangements. It is terribly important that they are well done, because the day may well come when there is a government of a different party at Westminster from that at the Scots Parliament. It is very important that the arrangements are robust.
We are dealing with grey areas in which people work in contexts that are controlled partly by Westminster and partly by the Scots Parliament. It is very important to get it right. I think the Minister said that liaison between United Kingdom Ministers and Scottish Ministers was important to achieve consistency.
I have only one question. I think I understand what the Government are saying and it seems perfectly sensible. My noble friend and the noble Earl asked interesting questions and we look forward to the answers. My question is simply about money. This will involve money for the Scots Parliament that is currently the Westminster Parliament's money. There do not seem to be any costs in the rehabilitation of offenders changes, but the arrangements for shipping that begins in Scotland and ends somewhere else—or, mysteriously, can also begin and end somewhere else and still Scotland might want to help it along with money—will cost money, which will have to be taken from the Scottish block. As the noble Earl has said, the indemnifying of general commissioners of income tax and their clerks will undoubtedly cost money.
As with a lot of these orders, the question is how much will be added to the Scottish block to cover the measures. Will there be a conscious movement of money to fund them? The cost is not very great in the context of the whole Scottish budget, but it is being imposed on the Scots Parliament. Doubtless it wants this to happen and will have agreed to it—and I can see why—but it is being imposed. The U.K taxpayer is not going to have to pay for it.
635 I think I gave the Minister notice of my question. How precisely will the issue be handled? The situation will be repeated with many of the orders under the Scotland Act. That is an important question and we would like a clear answer.
§ Lord Kirkhill
My Lords, I have two brief observations. First, I congratulate my noble friend the Minister on the comprehensive manner in which he has explained a complicated order.
About 25 years ago I used to stand at the Dispatch Box when I was Minister of State at the Scottish Office. In particular, I guided the then Scotland Bill through your Lordships' House. I recall Mr Hayter even then giving me much helpful advice in muttered asides, as I am sure I frequently blundered badly.
I was a Minister in the Scottish Office for about four years. During that time I do not think that I took through your Lordships' House more than perhaps four Bills in any Session of Parliament. Perhaps there might have been five on one occasion, but it was usually about four. In its brief existence, the devolved Executive has produced and carried about 40 Bills. The question of retained power and devolved authority is, almost by definition, a moveable feast. Those involved in the public awareness of Scottish life would very much welcome the contents of the order.
§ Lord Evans of Temple Guiting
My Lords, I am extremely grateful to everybody who has contributed to this brief debate. The noble Baroness, Lady Carnegy of Lour, kindly said how clear my statement was. This was a process. I found it difficult to grasp the issue initially. The more questions I asked, the clearer it became to me—and therefore the clearer to everybody else. That is a good thing, particularly from a government who believe in absolute clarity of communication.
The noble Duke, the Duke of Montrose, made a number of interesting points, which I shall attempt to answer. The underlying point goes back to two lines from the order. These matters are part of the ongoing management of the boundaries of the devolution settlement. With an Act as ambitious as the Scotland Act 1998, there will be matters that have to be dealt with. I gather there have been eight order so far and there will probably be others. I hope that any others will be closely argued to your Lordships' satisfaction. In answer to one of the noble Duke's questions, we anticipate that there may be further orders, but at the moment we have nothing in mind.
The noble Duke asked what sort of jobs are excepted under the Rehabilitation of Offenders Act. He sees a moving feast of exceptions. Broadly, the exceptions are those involved with national security, the care of the young and vulnerable—for obvious reasons—the administration of justice, and work in which issues of probity are vital.
The noble Duke, the noble Earl and the noble Baroness all asked whether there were cost implications for the Scottish Parliament. I shall deal first with the question asked by the noble Earl, Lord Mar and Kellie. 636 He is very concerned that there are costs that will have to be met by the Scottish Executive, particularly if a cost order were made against a general commissioner. I reassure the noble Earl that the legislation the order brings into force in Scotland makes exemptions where bad faith is proved or if a general commissioner is involved in a trial as a result of a matter arising from his duties. The Scottish Executive, which would be liable if a costs order were made, would not, therefore, be punished for the misbehaviour of the general commissioner or his clerk. I should also point out that that applies only to the senior people and not to the more junior commissioners.
On the question of transport, I, too, read the discussion in the House of Commons Hansard about ferries and ships going here, there and everywhere. I am assured that there is no hidden agenda as regards that part of the order. As I said in the statement, the aim is simply to make roads in Scotland less congested by encouraging freight carriers to ship freight rather than drive on crowded Scottish roads in vast lorries.
I believe that I answered the question on costs posed by the noble Baroness, Lady Carnegy of Lour. However, she shakes her head. She was kind enough to warn me that she intended to ask that question. Therefore, I obtained information on the cost predictions for each section of the order. The principal cost arises from the freight facilities grant. The Scottish Executive is content with the arrangements. Funding will be met from existing resources within the assigned budget. The Scottish Executive advises that by 2005–06 the SFG budget will be £15.4 million. The Government do not envisage any significant costs arising from other parts of the order other than normal administrative ones. There have been no cost orders against general commissioners in the past so we do not envisage anything of substance in that regard in future.
I believe that I was asked about costs in the Scotland Office. I am advised that the Scotland Office can take on the additional work with no additional costs being incurred.
§ Baroness Carnegy of Lour
My Lords, I am grateful to the noble Lord for giving way. I asked whether there would be a deliberate specific transfer via the Treasury of the Scots block from Westminster to the Scots Parliament for matters such as those we are discussing. The Scotland Office considers that it can cover the work but has thought been given to what will happen when the changes are made and the burden is moved? I see that the noble Lord, Lord McIntosh, is present. He knows all about the Treasury. Perhaps he can help in this matter.
§ Lord Evans of Temple Guiting
My Lords, I answered that question by saying that any cost would be accommodated within existing resources. There will be no new money as a result of the order other than the moneys in relation to transport.
§ The Duke of Montrose
My Lords, I did not ask whether costs would arise within the department the noble Lord represents. I foresee costs arising when 637 people inquire about previous convictions. I do not know to whom those questions would be addressed. But one can foresee an increasing flood of such questions and that may require extra resources being made available.
§ Lord Evans of Temple Guiting
My Lords, I am advised that there will be no increase in net resources. It is anticipated that these matters can be dealt with through the existing structures with no additional staff and no additional money being required.
§ On Question. Motion agreed to.
§ Baroness Farrington of Ribbleton
My Lords, I beg to move that the House do adjourn during pleasure until 8.25 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 8.5 to 8.25 p.m.]