§ 8.34 p.m.
§ Lord Evans of Temple Guiting
rose to move, That the draft order laid before the House on 9 December 2004 be approved [4th Report from the Joint Committee].
The noble Lord said: My Lords, I shall speak also to the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 and the Scotland Act 1998 (Modifications of Schedule 5) (No. 2) Order 2005. These were laid before the House on 18 and 25 January respectively. The Government wish to thank the House for agreeing to consider these technical pieces of legislation together, as is normal for instruments under the Scotland Act.
The orders being considered today are made under different Scotland Act powers. Two are being made under Section 30(2) and one under Section 63. Noble Lords are by now familiar with powers at Sections 30(2) and 63 of the Scotland Act, which are explained in the Explanatory Memorandum accompanying each instrument.
I turn first to the Scotland Act 1998 (Modifications of Schedule 5) Order. Article 2 amends the reservation at Section H2 (Health and Safety) of Schedule 5 to the Scotland Act 1998. The amendment will permit the Scottish Parliament to legislate in relation to fire safety on construction sites. It will also allow the Scottish Parliament to legislate in relation to fire safety on premises that were listed in Part I of Schedule 1 to the Fire Certificates (Special Premises) Regulations 1976 (S.I. 1976/2003) on 1 July 1999, when the Scottish Parliament took on its full powers. The Explanatory Memorandum available to your Lordships provides the 886 policy background to the order. In short, it reflects the fact that fire safety law is undergoing reform across the UK.
Amending the reservation to give the Scottish Parliament legislative competence in respect of the matters that I have just described is a further step to allow a consistent split of policy responsibility across the UK between the Health and Safety Executive and ODPM in England and Wales and the HSE and the Scottish Executive in Scotland. The ODPM has been working on a regulatory reform order to give effect to this policy split in England and Wales. The Scottish Executive are taking forward a Fire Bill in the Scottish Parliament, which will give effect to the policy split in Scotland in respect of those areas within the Scottish Parliament's legislative competence. The Scottish Executive, Health and Safety Executive and ODPM have discussed and agreed the content of the order. The Scottish Parliament considered and approved the order on 26 January.
I turn now to the Section 63 order, which is the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.)Order 2005. As noble Lords will be aware, this is commonly known as an executive devolution order. It transfers functions to the Scottish Ministers in respect of a number of different policy matters where primary legislation remains a matter for this Parliament. It is about recognising that, in this instance, Scottish Ministers are better placed to exercise those functions in, or as regards, Scotland. The order is an updating exercise and transfers functions in four different policy areas. These are: fire service pensions, electricity and energy, food regulation and road traffic regulation.
In respect of fire service pensions, Scottish Ministers will be able to exercise an order-making power in the Fire and Rescue Services Act 2004, which repealed the relevant provisions previously executively devolved to the Scottish Ministers in the Fire Services Act 1947. That will enable them to set out the details for fire-fighters' pensions in Scotland. In respect of electricity and energy, the order transfers to the Scottish Ministers functions of the Secretary of State specified in Section 3A of the Electricity Act 1989. Section 3A specifies the principal objective and general duties of the Secretary of State and the Gas and Electricity Markets Authority in carrying out functions under Part 1 of the 1989 Act.
The order also transfers functions of the Energy Act 2004 and Section 32(7) of the 1989 Act. Those sections provide for amendments to the requirements for Scottish Ministers to consult before making an order in relation to the renewables obligation under Sections 32 to 32C of the 1989 Act. Finally, the order also transfers a new function, under Section 32BA of the 1989 Act, which allows green certificates issued in respect of electricity generated from eligible renewables sources in Northern Ireland to be produced to GEMA as proof that a supplier has met its renewables obligation.
In relation to food, the order transfers to Scottish Ministers functions relating to the regulation of substances falling within the definition of "food" in the Food Safety Act 1990, as amended by a European directive—Regulation 178/200. The order transfers those functions only in so far as they are not already exercisable by Scottish Ministers
. 887 That ensures that Scottish Ministers will continue to be able to regulate food safety and standards for Scotland for all substances considered to be food in Community law. Specifically, the functions being transferred arise under the Food and Environment Protection Act 1985, the Food Safety Act 1990 and the Food Standards Act 1999. Those Acts are the core framework for the regulation of food in Great Britain, including the transposition of Community measures, and all share the definition of food contained in the 1990 Act, as amended.
The order also allows for the concurrent transfer of the powers of Section 2(2) of the European Communities Act 1972 for the limited purpose of regulating food in so far as those powers are not already exercisable by the Scottish Ministers for that purpose. European Community legislation on food safety and standards is, from time to time, transposed using those powers.
In respect of the Road Traffic Regulation Act 1984, the order before us changes the current position. As things stand, the Home Secretary has the power to make Anti-Terrorist Traffic Regulation Orders—ATTROs—in Scotland. The Government have agreed with the Scottish Executive that functions to regulate or control a road in the case of a terrorist threat should be exercised by Scottish Ministers. This is administratively sensible as the Scottish Ministers are responsible for road transport policy in Scotland.
As ATTROs make provision for dealing with the reserved matter of terrorism, Scottish Ministers will be required to seek the agreement of the Secretary of State before making such orders.
Functions under the Roads (Scotland) Act 1984 as amended will he transferred by the order. Scottish Ministers will then be able to exercise functions—for example, ahead of international summits held in Scotland—affecting the movement of vehicles and other traffic. Again, those will be exercised in relation to avoiding or reducing the likelihood of any terrorist threat.
I describe the order as an updating exercise to reflect the fact that UK or European legislation has been changed or amended in the four different policy areas. The order will allow the Scottish Ministers to exercise similar functions provided for in updated legislation governing new regimes as they have done previously. All relevant UK government departments and the Scottish Executive have discussed and agreed the content of the order. The Scottish Parliament considered and approved the order on 1 February.
The final order before us is the Scotland Act 1998 (Modifications of Schedule 5) (No. 2) Order 2005. Article 2 amends the reservation at Section B8 in Part 2 of Schedule 5 to the Scotland Act. Among other things, this reservation relates to the interception of communications. The amendments are needed in respect of the definitions of "Place of detention", "person detained" and "Private telecommunication system". These will reflect the repeal of and changes to other legislation which those definitions currently refer to.
888 The amendments are as follows. With reference to the Mental Health (Scotland) Act 1984—the 1984 Act—the definition of "Place of detention" is being replaced with reference to the Mental Health (Care and Treatment) (Scotland) Act 2003—"the 2003 Act".
The definition of "person detained" is being replaced by references to the appropriate detaining legislation, which are certain provisions of the 1984 Act and the Criminal Procedure (Scotland) Act 1995, the 2003 Act, and regulations made under provisions of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. This new definition reflects the opportunity being taken to extend the definition of "person detained" to include all those detained in hospital by mental health legislation in addition to those detained via the criminal justice system. That reflects the existing powers under the 1984 Act.
The definition of "private telecommunications system" is being updated by a definition drawn from the more recent Regulation of Investigatory Powers Act 2000, which takes account of technological developments.
The amendments have been discussed and agreed by the Department of Health, the Home Office and the Scottish Executive. The Scottish Parliament has not yet considered the order, but we expect that it will do so in the next couple of weeks. In drawing to a close, I thank the House again for continuing the usual practice of considering the orders as a package. I commend them to the House. I beg to move.
Moved, That the draft order laid before the House on 9 December 2004 be approved [4th Report from the Joint Committee].(Lord Evans of Temple Guiting.)
§ The Duke of Montrose
My Lords, I support the orders that have been explained by the Minister. Sometimes issues and events present themselves in a way that is readily comprehensible and sometimes they do not. This morning, we had a nice easy one which came under the slogan, "Do it yourself" with a B&Q logo, three hulls and a neat lady keeping everything in what is called in the Navy "shipshape and Bristol fashion".
This evening, we have this measure which has so many pieces and patches, amendments and subclauses that it is hard to follow how it can all be pieced together. If Ellen MacArthur's boat had to be assembled from such a diverse set of components, I doubt it would have made it out of the harbour, let alone round the world.
As regards the relevant modifications of Schedule 5 order, which the Minister took pains to explain to us, one wonders slightly why the power has to be transferred and whether some of the matters could not be done under some kind of Sewel arrangement. Would that not have sufficed?
I am glad that the Minister referred to Part 1 of Schedule 1 to the Fire Certificates (Special Premises) Regulations 1976. Will he give some examples of what those special premises are likely to comprise that will become the responsibility of Scottish Ministers? 889 As regards the devolution of powers to Scottish Ministers, is every possible aspect of food and the environment that has not already been tidied up covered by the measure? A slight worry is that the actual criteria are those laid down by an EC regulation. In Scotland, we are never particularly worried about our beef, which is a premium product, but there are always occasional worries about whether someone will try to regulate haggis in a way that we do not approve of.
The Minister referred to a matter that puzzles me. There is an interesting overlap in Section B8 of Schedule 5 as regards some of the provisions that are being delegated to Scottish Ministers under the delegation of powers order. The third paragraph in the relevant section clearly reserves to Westminster special powers and other special provisions for dealing with terrorism. Is there some special construction that allows the Road Traffic Regulation Act 1984 not to be a special power when it is being used to introduce traffic calming to reduce the danger of terrorism? Does the fact that that function will be exercised only with the agreement of the Secretary of State mean that it is not really a devolved power? If that is the case, one wonders why it cannot be exercised by the Secretary of State acting alone. Presumably, he should be just as exercised about the security situation as Scottish Ministers.
Subject to the Minister's answers, we are glad to welcome the measures.
§ Lord Maclennan of Rogart
My Lords, I am grateful to the Minister for his explanation of the orders, although even with his explanation they do not seem to me to have the lapidary clarity that, in an ideal world, would be the background against which one debated such a disparate—dare I say?—ragbag of orders.
Perhaps the Minister will reply to a few points of general interest. First, it appears that the Scotland Act 1998 (Modifications of Schedule 5) Order has come about partly through the review of fire safety in England and Wales although there appears some suggestion that it is also happening in Scotland. Is it an accident that these things are happening at the same time? Are they linked? Where does the initiative lie? Who requested these changes? That is far from clear.
It is not clear why sites over which the Scottish Parliament will be able to legislate in respect of fire safety are chosen and others are reserved. What is the rationale for their reservation? If fire safety is to be devolved it should not be carved up with particular regard to the nature of the sites. On the face of it, that would lead to potential confusion.
In turning to the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order, my eye alights on the road traffic regulation provisions. Again, I find it baffling, partly because the explanation advanced involved the legislative history of these amendments and changes rather than a clear statement of the objective which the Government and/or the Scottish Executive seek to achieve. Scottish Ministers are considered to be the appropriate authority to exercise those traffic regulation functions but only 890 subject to the agreement—presumably the prior agreement—of the Home Secretary before the legislation is brought forward. As these matters deal with terrorism, it is right that the expertise of the United Kingdom Government should be available to the Scottish Executive if they are to lay down regulation orders. One would assume that they would avail themselves of that expertise in a consultative process. However, it appears to be a requirement of law that they may not enact these rules without the prior permission of the Home Secretary. If that is so, it seems to be a new kind of legislative power. I am unaware of other examples of such a contingency being operated. It throws up rather wider questions of a constitutional nature. If it is open only to the Scottish Executive to legislate with the agreement of the United Kingdom Minister, would it not, as the noble Duke suggested, be more sensible to leave the power for the purposes of dealing with terrorism clearly and explicitly for the responsible United Kingdom Minister? If the United Kingdom Minister is to second-guess the judgments made by the Scottish Executive, there is a clear risk of rifts, tension, friction and superarrogation, which is not administratively convenient. We really ought to have a little more explanation of what is in the minds of those who have devised this rather strange procedure.
On the Modification of Schedule 5 (No. 2) Order, it is not entirely clear from where the initiative has come for that proposed change in definition of places of detention. It may well be a sensible step to take, but who has thought it necessary to introduce those changes? Is it being done on the initiative of the Scottish Executive because of their introduction of the 2003 Act; or is it part of a continuous tidying-up operation? If it is the latter, it seems a rather odd way to proceed. There is some case for the systematic review of legislation, rather than ad hoc amendment such as that proposed tonight.
Raising those matters on the Floor of this House in this manner is not an adequate way to involve the public in consideration, whether the proposed changes are, as the Minister suggested, purely technical or whether there are issues of public import about which representations might reasonably be made. I am concerned about that somewhat untidy manner of proceeding. I make no complaint about what the Minister said; he gave an account of the legislative history, but the orders have come about as a result of political intervention from either the United Kingdom Government or the Scottish Executive. It would be interesting to know from where they originated.
§ Baroness Carnegy of Lour
My Lords, I do not want to detain the Minister; I know that he has an important engagement outside the House for which he is already late. I just want to ask him two questions about the order concerning functions transferred to the Scottish Ministers. The first is about the fire and rescue services' pensions. From what he said, I was not quite sure whether that will involve the Scottish Executive paying pension to employees of the fire and rescue 891 services. I realise that pensions are a reserved matter, so if Scottish Ministers are to do that, there must be an order.
If that is the case, if money is to be paid by Scottish Ministers to the employees of the Scottish rescue services, will the money required for that be specifically transferred from Westminster to the Scottish Executive? Clearly, the Barnett formula would not cover a matter such as that. That is one question.
My second question relates to the road traffic regulations. I understand that the road traffic regulations part of the order is to enable Scottish Ministers to do the right thing to protect important visitors to Scotland when there is a danger of terrorism. Because the protection of the public against terrorism is a reserved matter it is necessary for the Home Secretary to be involved.
Will Scottish Ministers have to consult the Westminster Minister—presumably the Home Secretary—about the detail every time the roads have to be altered because there is a threat of terrorism in Scotland? That seems to me to be a rather clumsy arrangement. I can see that it might be necessary, but does the Scottish Minister have to consult the Home Secretary every time? This is probably a result of devolution but it is rather an awkward procedure.
Those are two simple questions, therefore: on pensions and the Barnett formula, and on the consultation in relation to road traffic arrangements.
§ The Earl of Mar and Kellie
My Lords, I shall raise three points since we are speaking about Scotland. The first is very simple. As usual, I approve of this fairly tame clutch of orders, which are devolutionary in trend. I believe that the House should hear about all devolutions, irrespective of how minor they are.
My second point is about anti-terrorist traffic regulation orders, or ATTROs—I like that mnemonic. Who will pay for the work? The leg work will clearly be done by the Scottish Ministers on behalf of the Home Secretary. I have in mind the G8 summit at Gleneagles, which will no doubt require a lot of work. I would certainly argue that the Home Secretary should pay for this work because, in the worst case scenario, it is the United Kingdom Government that may provoke the terrorism because the United Kingdom Government obviously control foreign policy in Scotland—Scotland being submerged so far as foreign policy is concerned. My ultimate remedy for that, of course—and it is a hope—is that the Minister will bring forward further modifications of Schedule 5, devolving foreign policy.
Since we are discussing Scotland, my third point is again to complain about the Home Secretary, and in particular the way in which he announced changes to immigration and asylum earlier this week. I want to complain about the way that the Scottish Executive's Fresh Talent initiative was ridden over roughshod, probably even trashed. How will Scotland reverse its predicted decline in population when it has to be straitjacketed into an immigration policy suitable for 892 the south-east of England? Logic therefore demands that I express a similar hope, even more forlorn, that immigration and asylum policy be devolved.
§ Lord Evans of Temple Guiting
My Lords, I will attempt to answer all the questions raised. As usual, if I miss any out, we will write.
The noble Duke, the Duke of Montrose, asks why not have a Sewel Motion rather than taking the Section 30(2) route. We need to use the order-making power as Sewel Motions relate only to UK primary legislation going through Parliament. This order relates to the legislation already passed. He also asks why road traffic regulations are being transferred to Scottish Ministers. Scottish Ministers are already responsible for traffic regulation in Scotland. This order balances the devolved aspect of traffic regulation with a need to consider the reserved matters dealing with terrorism. Approval of the order will place Scotland in a position equivalent to that of the National Assembly for Wales for making ATTROs (anti-terrorist traffic regulation orders).
The noble Duke, the Duke of Montrose, asked for examples of special premises under Part 1 of Schedule 1 to the Fire Certificates (Special Premises) Regulations 1976. A few examples are manufacturing premises using highly flammable liquids and premises storing liquid gas in very large quantities.
The noble Duke also asked whether every aspect of food was included as a result of the order. Scottish Ministers have devolved competence to act in relation to food as defined within the parameters of the GB Food Safety Act 1990 at the time of devolution. The definition of food in the 1990 Act and other legislation regulating food safety and food standards was amended to reflect the new European food law framework on 7 December 2004.
As the devolution settlement is fixed in part by reference to the scope of the 1990 Act as it stood on 1 July 1999, and as certain substances considered drugs and medicine under our domestic law now fall within the European food law framework, this technical measure is required to ensure that Scottish Ministers can continue to regulate food safety and food standard matters for Scotland in respect of all food within the new definition.
The noble Duke, the Duke of Montrose, also asked why for transferred functions under the Road Traffic Regulation Act 1984 there was an obligation to obtain the consent of the Secretary of State. He asked whether that meant that the powers were not actually devolved. Section 63 of the Scotland Act specifically envisages the transfer of functions to be exercised with the agreement of the Secretary of State.
The noble Lord, Lord Maclennan of Rogart, raised general points about how the orders are handled. It is difficult to make such highly technical orders intelligible. He might like to think about how we can share them with the public before we introduce them in the House, as he suggested, and we certainly will. As the noble Earl, Lord Mar and Kellie, pointed out, these technical orders 893 are complicated and challenging. However, we take on board the point made by the noble Lord, Lord Maclennan.
The noble Lord, Lord Maclennan, asked a similar question to that of the noble Duke, the Duke of Montrose: why is the agreement of the Secretary of State required for orders made by Scottish Ministers in relation to anti-terrorist traffic regulation orders? The Scotland Act specifically envisages the transfer of functions where they are to be exercised with the agreement of the Secretary of State when they relate to reserved matters. In matters of general policy—on roads, for example—the function is devolved. The noble Lord also asked whether the review of fire safety was happening at the same time, and by coincidence, as in England and Wales. The review is taking place at a similar time, as there are certain cross-border issues that are relevant to both the ODPM's Regulatory Reform (Fire Safety) Order and the Scottish Executive's Fire Bill.
The noble Lord, Lord Maclennan, asked why the definition of "persons detained" was being changed, and about the intention of the changes to the definitions. The current definitions in the Scotland Act have become out of date, and the order seeks to ensure that the definitions are brought up to date to give full effect to the Act.
The noble Baroness, Lady Carnegy, asked what a fire service pensions order would do. The transfer of functions will enable Scottish Ministers to make detailed arrangements for one or more pension schemes for fire service staff. She went on to ask about the financial implications of such pensions. The answer is that there are no direct financial implications. Fire service pensions are funded on a pay-as-you-go basis by contributions from the local authority, employers and staff. The situation will not change because of the transfer of functions.
The noble Baroness, Lady Carnegy, also asked how often Scottish Ministers expect to exercise the ATRRO functions in Scotland. It is impossible to determine frequency. The Scottish Executive have advised that they do not believe that ATTROs will be used on anything like a regular basis in Scotland. Local roads authorities already have extensive power to make traffic regulation orders. An ATTRO would be used only in extreme circumstances, which, in all probability, would be sanctioned by the local road authority.
894 The noble Earl, Lord Mar and Kellie, asked about the financial implications of the road traffic regulations power already exercised by Scottish Ministers under the Road Traffic Regulation Act 1984. The order simply serves to clarify their ability to exercise those powers for the purpose of countering vehicle-borne terrorist threats. The Scottish Executive do not expect to increase public spending and no transfer of funds is proposed in connection with the order.
At least two noble Lords asked where the initiatives on these orders come from. They come from legislative proposals in the UK and Scottish Parliaments. The noble Earl, Lord Mar and Kellie, asked whether recent announcements on asylum and immigration override the Fresh Talent initiative. The Scottish Ministers have supported the recent announcements and have said that they believe that the Government's proposals should not impinge on Fresh Talent. As I said at the beginning, if I have missed anything out I will write to noble Lords.
On Question, Motion agreed to.