§ 8.40 p.m.
§ Lord Evans of Temple Guiting
rose to move, That the draft order laid before the House on 20 May be approved [20th Report from the Joint Committee].
The noble Lord said
My Lords, with your Lordships' permission, we can conveniently consider two further instruments being made under powers provided by the Scotland Act 1998. They are the Scottish Public Services Ombudsman Act 2002 (Consequential Provisions and Modifications) Order 2004 and the Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004. It has become common practice to batch instruments being made under the Scotland Act to make the best use of scarce parliamentary time.
The first instrument is being made under Section 63 of the Scotland Act. The two further instruments are being made under Section 104 of the Scotland Act. Many noble Lords are familiar with these powers, which rather than relating to substantive policy issues are technical in nature. But I hope it will be helpful to outline briefly what the powers under the Scotland Act allow us to do when explaining the policy background to the orders. Before doing so, I should emphasise that the orders have been scrutinised by the Joint Committee on Statutory Instruments and the Lords Merits Committee. They have also been agreed to by the Scottish Executive and relevant Whitehall departments.
I turn, first, to the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2004, which is being made under the powers provided by Section 63 of the Scotland Act. The Scotland Act recognised that, in some cases, it would be appropriate for Scottish Ministers to be able to exercise executive functions in areas where primary legislation continues to be a matter for Westminster. That is the process known as executive devolution. It should be noted that executive, not legislative, competence is transferred under that process. In other words, the legislative competence of the Scottish Parliament is not varied where the Scottish Ministers are given power to carry out the function.
Section 63 of the Scotland Act allows functions, so far as they are exercisable in or regards Scotland, to be exercisable by the Scottish Ministers, instead of, or concurrently with, a Minister of the Crown. It also allows for functions to be carried out by a Minister of the Crown with the agreement of, or after consultation with, the Scottish Ministers. 756 Orders made under Section 63 are also considered by the Scottish Parliament. This order was considered and agreed by the Scottish Parliament's Communities Committee on the 9 June. A Standing Committee in the other place considered and agreed the order on the 24 June. The order transfers functions in two distinct areas. The first relates to the approval of a cooperative housing association, whose registered office is in Scotland, in connection with a claim for tax relief purposes under Section 488 of the Income and Corporation Taxes Act 1988. The second concerns the executive devolution to Scottish Ministers of concurrent powers to make regulations for Scotland under Sections 4 and 6 of the Fireworks Act 2003.
I shall set out the content of these two parts of the order in a little more detail. Further information on the policy background and an explanation of what each article of the order does can be found in the Explanatory Memorandum, copies of which can be obtained from the Printed Paper Office.
Section 488 of the Income and Corporation Taxes Act 1988 provides that a co-operative housing association which meets the criteria set down in the Act can make a claim to the Inland Revenue for certain tax reliefs and exemptions.
At present, the function of approving an association for the purposes of Section 488 is carried out in Scotland by a Minister of the Crown. Before devolution, officials in the former Scottish Office had delegated authority from the Secretary of State to confirm approval to the housing co-operative and its accountants for the purpose of Section 488. However, this function is not within the competence of the Scottish Ministers.
Such approvals do not arise very frequently in Scotland—as little as one every six or seven years. However, it is expedient and sensible for these consents to be issued by the Scottish Ministers since, after devolution, the expertise and resources lie within the Scottish Executive. The Government and the Scottish Executive have therefore agreed that it is appropriate for this function to be transferred.
I should add that the order does not transfer the function of setting out the criteria against which a housing co-operative's eligibility is to be tested. That function will continue to be discharged by UK Ministers.
I hope it is helpful to noble Lords if I explain a further feature of this element of the order. Executive devolution requires the functions in question to be treated as exercisable in, or as regards, Scotland. To do that, the order uses powers under Section 30(3) of the Scotland Act. This power—commonly referred to as a "paving provision"—assists a transfer of function to the Scottish Ministers by specifying the extent to which the functions are to be treatable as exercisable in, or as regards, Scotland.
In this instance, the functions transfer to the Scottish Ministers only where the housing association's registered office is in Scotland. For the remainder of Great Britain, the function will continue to reside with UK Ministers. 757 I hope it is helpful to your Lordships if I deal with one final aspect of this part of the order. In another place, a question was asked about whether a claim for tax relief could be retrospective. I should make it clear that the order before us applies only to applications which fall to be dealt with after the order comes into force. Any backdating would be in terms of the existing statutory regime, and not as a consequence of amendments made by this order.
The second area with which the Section 63 order deals is the Fireworks Act 2003. Noble Lords will recall that this is an enabling Act, which allows a Minister of the Crown to make regulations in a range of areas in relation to fireworks. The order before us will allow functions that could be currently exercised by a Minister of the Crown to be discharged also by the Scottish Ministers.
Section 4 of the Act provides that fireworks regulations can be made that include provision for prohibiting the supply, purchase, possession or use of fireworks during specified hours of the day or in specified circumstances. It also provides for exceptional dispensation from prohibitions to be made, if necessary, in the same regulations.
Section 6 of the Act provides that fireworks regulations may include provision prohibiting the operation of public fireworks displays unless specified conditions are complied with. These include the giving of notice and other information, the payment of required fees, training, and prohibiting persons from operating, or assisting in the operation of, displays if they are below a specified age. Section 6 of the Act also provides for exceptions to be made in relation to these conditions, and defines the term "public fireworks display".
The order enables the function of making these regulations to be exercisable by the Scottish Ministers. It also confers the function on the Scottish Ministers of certain powers under the Consumer Protection Act 1987, which have been applied to fireworks regulations by the Fireworks Act in relation to offences and enforcement. As stated in the explanatory memorandum, this function is transferred only in relation to Sections 4 and 6 of the Fireworks Act. The reason that only those functions, not all the functions in the Act, are being devolved is that the Act covers a complex mix of reserved and devolved areas. Some aspects of the Act are best dealt with on a GB basis or relate to reserved matters, such as consumer protection. The DTI and the Scottish Executive, who agreed the content of the order before us, will be liaising closely on those issues so there is no risk of conflicting regimes.
I turn to the orders being made under Section 104 of the Scotland Act. That section allows for orders considered to be necessary or expedient in consequence of any provision in an Act of the Scottish Parliament. Section 104 orders are usually concerned with modifying areas of law reserved to the UK Parliament or amending the law of England and Wales—and, in some cases, Northern Ireland—in 758 consequence of an Act of the Scottish Parliament. By definition, it would be outside the competence of the Scottish Parliament to legislate in those areas.
As a result, Section 104 orders are considered at Westminster only. In this instance, the Scotland Act requires the orders to be subject to affirmative resolution, as they amend primary legislation. The two Section 104 orders before us were considered and agreed by the other place on 24 June.
The main purposes of both Section 104 orders are to remove spent references in the statute book to bodies which have ceased to exist, and to substitute or make provision for references to new bodies. Neither Section 104 order alters the underlying statutory regime in the legislation as amended.
The first order is made in consequence of the Scottish Public Services Ombudsman Act 2002. That Act of the Scottish Parliament is designed to streamline and improve the public sector complaints system in Scotland. It transferred to the Scottish Public Services Ombudsman (SPSO) powers previously exercised by the Health Service Commissioner for Scotland, the Commissioner for Local Administration in Scotland and the Scottish Parliamentary Commissioner for Administration.
A number of articles in the order remove references to the commissioners abolished by the 2002 Act and replace them with references to the ombudsman where necessary. Furthermore, the 2002 Act provides for the ombudsman to co-operate with ombudsmen and commissioners operating elsewhere in the UK in those areas relevant to those officeholders' interests. The draft order makes reciprocal arrangements with other commissioners and ombudsmen.
The order also makes provision in respect of the Government. The 2002 Act provides that no person is, or may be required, to supply to the ombudsman information relevant to proceedings of the Scottish Cabinet. The draft order makes similar provision in relation to the UK Cabinet.
Noble Lords will wish to note that that is not a new policy proposal. The statutory frameworks that supported the former Scottish parliamentary and health service commissioners contained similar provisions. Precedent therefore exists for recognising that circumstances may arise whereby either of those officers' work could require access to UK Cabinet papers in pursuance of their functions. The responsibilities of both those officeholders transferred to the SPSO.
Although it is anticipated that, in practice, the SPSO would rarely have cause to seek sight of UK Cabinet papers, it is sensible that such material should benefit from the protection given by previous ombudsman-related legislation.
The 2002 Act also provides that a member of the Scottish Executive may give notice in writing to the SPSO that documents and information on which the ombudsman has sought disclosure should not be disclosed, as to do so would be contrary to the public interest. The order makes similar provisions for Ministers of the Crown. However, the order does not 759 undermine the existing regimes on disclosure of information as laid out in, for example, the Freedom of Information Act 2000.
In summary, the order as a whole addresses issues where the framework provided by the 2002 Act has a read across to matters outside the legislative competence of the Scottish Parliament.
Noble Lords will surely be delighted that I turn finally to the last order before us this evening. It is again being made under Section 104 of the Scotland Act, this time in consequence of the Water Industry (Scotland) Act 2002. The main purpose of this Act was to provide for the establishment of Scottish Water as the successor to three water and sewerage authorities in Scotland.
The effect of the order is to remove any references to the predecessor water and sewerage authorities in the enactments and subordinate legislation and to put references to Scottish Water in their place. It would be outside the competence of the Scottish Parliament to make the vast majority of modifications in the draft order. Thus this order is an exercise in making sure that the new devolved body is appropriately represented in the statute book. It also makes amendments to reflect the creation of water customer consultation panels by the 2002 Act.
Eagle-eyed noble Lords may have noticed from paragraph 5 of the Explanatory Memorandum that the draft order does include two modifications to the Transport Acts 1962 and 1968. That would be within the legislative competence of the Scottish Parliaments to make. It is not our usual practice to include any modifications in orders under Section 104 to matters within the competence of the Scottish Parliament. However, in this instance, these two modifications have been included, since there is no suitable vehicle before the Scottish Parliament in which they could be included and because we wish to see the statute book as tidy as possible to assist the user. I hope noble Lords will agree that this is an example of sensible and pragmatic partnership between the Government and the Scottish Executive.
These three technical orders are in our view a sensible, expedient and necessary use of the powers under Sections 63 and 104 of the Scotland Act and I commend them to the House. I beg to move.
Moved, That the draft order laid before the House on 20 May be approved. [20th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
§ The Duke of Montrose
My Lords, the Minister would appear to be in training for a marathon, the way he has gone through all of these—
§ Baroness Carnegy of Lour
My Lords, is it correct that we can speak after our Front Bench in discussing these orders? I am not sure, but there is something I want to say.
§ Baroness Crawley
My Lords, I understand that it is correct. Of course, we will all keep an eye on the clock.
§ The Earl of Mar and Kellie
My Lords, could I ask for clarification as to whether we have to be finished at five past nine?
§ The Duke of Montrose
My Lords, I understand that the Motion that was passed was that the Bill on asylum and immigration should not begin before five past nine. 760 When one tries to bring all these Scottish orders together, the kaleidoscope that appears is quite amazing. I feel that the ancients might have been pleased to see that we were dealing with the three basic elements: fire, air and water.
I am sure the Scottish Executive will be pleased that it has powers under the Fireworks Act. It can be a sensitive issue in a local area, when people wish to have regulation to suit their immediate needs. I am glad to hear the Minister say there is a definition of what is a "public display" because in my area a lot of people have fireworks in their back garden. The minute they fire a rocket, it seems to me that it is then almost a public display.
I have a few comments about the order on the substitution of Scottish Water for the various authorities in the other Acts. I am fascinated to know whether this was triggered by the EU directive on water or whether it was simply an effort to harmonise charges. I notice that up to last year, 77 per cent of businesses that got water from Scottish Water received an increase in charges, with only 18 per cent receiving a reduction.
The water industry commissioner reckoned that there would be an increase in revenue of about £30 million since two years ago. One can understand that some regulations may have to be made, but we hope that this money will be properly used.
§ Baroness Michie of Gallanach
My Lords, I should like to ask the Minister a question. I appreciate that these draft statutory instruments have to do with modifications, as the Minister explained at some length, and that they are technical in nature. They deal with naming new bodies, and so on. I very much welcome the statutory instrument which allows the transfer of functions to Scottish Ministers. However, I question why the draft statutory instruments on the Scottish public services ombudsman and Scottish Water are being debated here.
It is ridiculous that we are debating these matters here, when they should be debated in the Scottish Parliament. As long as these reserved powers are in place, the Government are doing nothing to enhance the stature of the Scottish Parliament. The fact that there are only 10 Members in the Chamber demonstrates the lack of interest there is in Scottish matters. I have no quarrel with that, but I think that Westminster does nothing to help the Scottish Parliament to be responsible and accountable so long as it retains these reserved powers. Why are we debating these matters here when nobody really cares about them and they should be debated in the Scottish Parliament? I know what the Minister's answer will be.
§ Baroness Carnegy of Lour
My Lords, we care about these matters very much. I do not think that we are making policy.
The water supply order seems to be a matter of redrafting to include the new titles of the water company. Why has it taken until now to do that, as the Scotland Act was passed so long ago? Is there any reason for that? 761 Paragraph 13 of the order dealing with the transfer of functions to Scottish Ministers gives them the job of deciding that a housing association could make a claim for tax purposes. The Minister said that this used to be done by Scottish Office Ministers and was delegated to officials. Does he know whether Scottish Ministers will delegate this to officials, or will they be in a better position to do it themselves? That would be a useful piece of devolution. Could he tell us that?
§ The Earl of Mar and Kellie
My Lords, the transfer of functions order can be welcomed as being devolutionary in trend, albeit being only executive devolution from Ministers of the Crown to Scottish Ministers.
The transfer of housing association approval for tax purposes strikes me as a tidying-up exercise, as the old Scottish Office used to do this work. This measure is benign and welcome.
The other order, covering fireworks, is new because the Act only came into force in 2003. It makes eminent good sense for such domestic activities as fireworks and firework displays to be administered by Scottish Ministers. There is a distinct need for the private use of the noisier fireworks to be controlled, certainly in terms of dates. It seems to me that the season for fireworks in Scotland is becoming ever longer, often to the distress of residents and animals.
The order that relates to the Scottish Public Service Ombudsman is unusual in that it is consequential on an Act of the Scottish Parliament. That is a fact for constitutional anoraks. The order allows the Scottish Public Service Ombudsman to consult with other UK ombudsmen, but prohibits him demanding either Scottish or United Kingdom Cabinet papers or disclosing information that would not be in the public interest. I have one question: is the SPSO allowed to deal with all public service matters in Scotland or just those which are devolved? If the latter is the case, who deals with reserved public service matters?
The water supply order is another order that is consequential on an Act of the Scottish Parliament. It clearly relates to the reduction of Scottish public water authorities from three to one. The streamlining may be good idea.
I note the tiny use of the Sewel convention in the two transport Acts, but like my noble friend Lady Michie of Gallanach, I wonder why we have to do this in quite this way. Will the order effect any real change beyond the amendment of legislation?
Finally, the three orders remind the House of how quite quietly Scotland is going its own way, as it should do. The First Minister, Jack McConnell, is worried about that and the fact that the UK news media ignore government activity in Scotland, except for the silly stories. As a Unionist, he should be worried. However, I suspect that it is "aye been" and that it is a "no bad" thing.
§ Lord Monro of Langholm
My Lords, I certainly agree with the recommendation that these matters 762 should have been sorted out in Edinburgh. Will the Minister explain how much of the legislation comes under the Sewel convention, or memorandum of understanding with devolved administrations, and how much under Act of Parliament?
It is unfortunate that the Scottish Office gave the Minister a brief to put three orders together, because it was very difficult to follow the derivation of each order from its original Act of Parliament. The majority of the legislation seems as though it will come under the Sewel convention, which does not have legislative purpose, but which has become accepted by the Government in Devolution Guidance Note 10.
The Sewel convention is a way of avoiding debate in Scotland on legislation that we have passed here. That is wrong. The Scottish Parliament should have the right to discuss in detail the Fireworks Act and the Act which deals with consumer protection. It would have been able to give a more detailed answer and it would have a more detailed knowledge of what is going on. More importantly, Scotland would know what was happening. Nobody in Scotland will know about the orders being laid tonight, but they should, because it is part of the democratic process. Yet, under the Sewel convention—the Minister might like to comment on it—the legislation will not be discussed in detail in Scotland nor will it receive the publicity that it deserves. That is particularly true of the order on fireworks. I used to have a fireworks factory in my constituency. One knows just how much legislation dealt with the safety of fireworks and the promotion of the company.
I make a further point with a rather wry smile, because I was the Minister who took the original Water Act 1994 through Parliament. All hell broke loose among the Labour Opposition and the Liberal Party when we did away with a multiplicity of local government water companies and put them into three units: the east, the north and the west. That worked very satisfactorily until the Labour government returned to power. The arrangements were then used effectively to nationalise the industry and create one company for the whole of Scotland. That is what this order is all about. Since then we have seen the most incredible increase in the cost of water in Scotland. I should think that in many areas it is as expensive as whisky. Even on my humble farm it has gone up about four times in a year, and that is supposed to be because of the cost of putting in new drains and sewers. By and large it is thoroughly unsatisfactory. Scottish Water wants to take a good look at itself before it provides for Scotland the water that it is entitled to have.
Is that happening under the Sewel rules or under another procedure? People in Scotland would like to know what is going on and why this order is being passed here rather than in Edinburgh in the Scottish Parliament. I should like the Minister to give detailed comments on the Sewell arrangements because that is vital in relation to these orders.
§ Lord Evans of Temple Guiting
My Lords, I am grateful to noble Lords for their comments on the orders. I will go through the questions asked and hope that I will 763 be able to give satisfactory answers. First, I thank the noble Duke, the Duke of Montrose, for welcoming the orders. He asked about the cost of water in Scotland. The order does not relate to the cost of water in Scotland. We are simply inserting the term "Scottish Water" into reserved legislation. Water charges are rightly a matter for the Scottish Parliament.
Unless I completely misunderstood the noble Baroness, Lady Michie, I was amazed at her almost emotional outburst that we do not discuss Scottish matters properly in this House. By her contribution she showed the emotion that sometimes comes to the surface when we discuss Scottish matters. Although very few noble Lords are present, we have most Scottish Peers, and the discussion has been both rather interesting and totally worth while.
I also said during my speech that these orders have been discussed. They have been discussed by the Joint Committee on Statutory Instruments, the Lords Merits of Statutory Instruments Committee, the Scottish Executive, within Whitehall departments and, as noble Lords will see in Hansard, there was an interesting discussion in the other place. I tried to head off many of the questions that were discussed there by incorporating those into my rather lengthy speech. So I make no apologies to the noble Baroness, Lady Michie, for the way that this matter has been handled.
The noble Baroness, Lady Carnegy,
asked about the water order and whether that is a matter of redrafting. I can confirm that it is. She also asked who will be taking the decisions on housing co-operatives in Scotland—whether it will be Scottish Ministers or civil servants. That is a purely procedural matter. The Scottish Executive officials will be given delegated authority to confirm approval of a housing co-operative for tax-relief purposes, having first considered the rules and constitution of the co-operative. She also asked whether there are any changes in the water order other than in the name. There are no changes.
The noble Earl, Lord Mar and Kellie,
asked what matters the SPSOs deal with. His powers are set out in the SPSO Act 2002. The Parliamentary Commissioner for Administration would deal with reserved matters for the UK.
The noble Lord, Lord Monro ,
asked why the three orders were being taken together. If we had taken them separately, we would have been here twice or even three times as long as we have. That may or may not have been something that the noble Lord would have welcomed—but that is the reason.
As for the Sewel Motion, that consent is sought on occasions when the Westminster Parliament is to legislate in devolved areas in primary legislation—not in secondary legislation, such as the three orders that we have been considering.
I hope that I have answered the questions that have been raised.
On Question, Motion agreed to.