House of Commons |
Session 1997-98 Internet Publications Other Bills before Parliament Arrangement of Clauses (Contents) |
Scotland Bill
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EXPLANATORY AND FINANCIAL MEMORANDUM | |
The Bill provides for the establishment of a Scottish Parliament and the Scottish Administration. | |
Part I establishes the Parliament and makes provision about elections. Part II establishes the Administration and makes provision for the transfer of functions. Part III makes provision for financing the Administration, including provision for audit and accounting. Part IV makes provision for the Parliament's tax-varying power. Parts V and VI provide for various miscellaneous, general and supplementary matters. | |
PART I | |
THE SCOTTISH PARLIAMENT | |
Clause 1 establishes a Scottish Parliament. Members of the Scottish Parliament ("MSPs") are to be constituency members elected by the simple majority system or regional members elected by proportional representation. Schedule 1 makes provision for the constituencies, regions and the number of regional members (including provision for changes to the regions and the number of regional members). | |
Clauses 2 and 3 make provision for dissolution of the Parliament, the timing of ordinary general elections and the circumstances in which extraordinary general elections are to be held. In general, ordinary general elections are to be held on the first Thursday in May every fourth calendar year. Extraordinary general elections are held where the Parliament resolves by a majority of not less than two-thirds of its membership that it should be dissolved, or if the Parliament does not nominate a First Minister during the period specified in Clause 43 | |
Clause 4 deals with candidates for general elections. It provides for registered political parties to submit a regional list of their candidates to be regional members and identifies those who may not be candidates to be regional or constituency members. | |
Clauses 5 to 7 set out the proportional representation system by which regional members are returned at a general election. Voters may give a vote for a registered political party which has submitted a regional list or for an individual candidate. That vote is in addition to any right to vote for the return of a constituency member. The process for determining the return of regional members is based on the number of votes given for each party and for each individual, and on the number of candidates of the party returned as constituency members for the constituencies in the region | |
Clause 8 provides for constituency by-elections where the seat of a constituency member is vacant. | |
Clause 9 provides that a vacancy in a regional member seat which had been allocated to a registered political party will be filled by the nomination of another person from the same party list. If the vacancy is not filled in accordance with that procedure or the seat has been held by an individual candidate, the seat will remain vacant until the next general election. | |
Clause 10 provides that those who are properly registered and are entitled to vote in a local government election in an area falling wholly or partly within a constituency are entitled to vote in that constituency in an election to the Parliament. | |
Clause 11 enables the Secretary of State to make provision by order for the conduct of elections and related matters. | |
Clauses 12 and 13 provide for the term of office of an MSP and the procedure for his resignation. | |
Clauses 14 to 17 provide the grounds of disqualification from being an MSP and the exceptions from, consequences of, and legal proceedings as to, disqualification. | |
Clause 18 provides for the election of a Presiding Officer and two deputies from among the MSPs. | |
Clause 19 provides for the appointment of a Clerk of the Parliament by the Scottish Parliamentary Corporate Body ("SPCB"). | |
Clause 20 provides for the establishment, membership and functions of the SPCB. Schedule 2 makes further provision about the SPCB including provision about its powers and staff. | |
Clause 21 requires the proceedings of the Parliament to be regulated by standing orders. Schedule 3 makes further provision as respects the content of the standing orders. | |
Clause 22 requires the standing orders to provide for the registration and declaration of interests of MSPs and for the prohibition of MSPs from promoting any matter in return for payment. It provides that any MSP who contravenes provisions of the standing orders under the clause commits an offence. | |
Clauses 23 to 25 enable the Parliament to require certain persons to attend to give evidence, or to produce documents, relating to specified matters. Failure to comply is an offence. Persons giving evidence in proceedings of the Parliament may be required to take an oath. A refusal to do so when so required is an offence. | |
Clause 26 makes provision for the Lord Advocate and the Solicitor General for Scotland to participate in the proceedings of the Parliament (but not vote) when they are not MSPs. It also provides for them to be able to refuse to answer any question or produce any document if they consider that it might prejudice particular criminal proceedings or might otherwise be contrary to the public interest. | |
Clause 27 provides that the Scottish Parliament may make laws, to be known as Acts of the Scottish Parliament, and that Bills shall becomes Acts of the Scottish Parliament when they have been passed by the Parliament and have received Royal Assent. The clause states that it does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. | |
Clause 28 makes provision as to the legislative competence of the Scottish Parliament. In particular, the Parliament cannot legislate in relation to reserved matters (which are defined in Schedule 5) and can only legislate as a matter of the law of Scotland. European Community law, rights under the European Convention on Human Rights which are given effect to in UK law and provisions of the Bill (other than those set out in Schedule 4) are also protected as is the position of the Lord Advocate as head of the criminal prosecution system and system of investigation of deaths in Scotland | |
Clause 29 introduces Schedule 5 and also provides for modifications of that Schedule to be made by subordinate legislation. | |
Clause 30 provides that a member of the Scottish Executive in charge of a Bill shall, on or before its introduction, make a statement to the effect that in his view an Act of the Scottish Parliament containing the same provisions as those in the Bill would be within the legislative competence of the Parliament. | |
Clause 31 requires the standing orders to ensure that no Bill can be introduced if the Presiding Officer decides that it would be outside the legislative competence of the Parliament. Standing orders may provide for the Parliament to overrule such a decision by the Presiding Officer. The standing orders are required to ensure that it is the Presiding Officer who submits Bills for Royal Assent and to impose certain limitations on his power to do so. | |
Clause 32 provides that questions as to whether a Bill would be within the legislative competence of the Parliament may be referred to the Judicial Committee of the Privy Council by the Advocate General, the Lord Advocate or the Attorney General. | |
Clause 33 enables the Secretary of State by order to prohibit the submission of a Bill for Royal Assent within 4 weeks of its passing by the Parliament if he believes (and states his reasons) that it contains provisions which would be incompatible with international obligations; or that, in certain cases, the provisions would have an adverse effect on the operation of an enactment as it applies to reserved matters. | |
Clause 34 requires the standing orders to make provision as to the procedural stages of a Bill, including reconsideration of a Bill following a decision of the Judicial Committee that the Bill is not within the legislative competence of the Parliament or following an order by the Secretary of State under Clause 33. | |
Clause 35 provides that the Acts of Union have effect subject to the Bill. | |
Clause 36 provides for the use of Letters Patent under the Scottish Seal for the signification of Royal Assent to a Bill, and for proclamations under the Scottish Seal in connection with general elections. | |
Clause 37 makes provision about defamation. Statements made in proceedings of the Parliament and statements published under the Parliament's authority are to be absolutely privileged. | |
Clause 38 disapplies the rule of strict liability for contempt of court in relation to publications made in, or reports of, certain proceedings of the Parliament. | |
Clause 39 provides for the Parliament to be a public body for the purposes of the Prevention of Corruption Acts 1889 to 1916. | |
Clause 40 provides for the exclusion of certain days in calculating when Parliament should meet after a general election. | |
PART II | |
THE SCOTTISH ADMINISTRATION | |
Clause 41 establishes a Scottish Executive, comprising the First Minister, the Ministers appointed by the First Minister under Clause 44, the Lord Advocate and the Solicitor General for Scotland. They are to be known collectively as the Scottish Ministers. | |
Clauses 42 to 44 provide for the appointment and term of office of the First Minister and the Ministers. The Parliament nominates one of its members to be First Minister and the Ministers are only appointed with the agreement of the Parliament. | |
Clause 45 makes provision in relation to the appointment and removal of the Lord Advocate and the Solicitor General for Scotland. It provides for the continuation of the independence of the Lord Advocate in relation to his prosecution functions and functions relating to the investigation of deaths in Scotland, and for the Lord Advocate and the Solicitor General for Scotland to cease to be Ministers of the Crown. | |
Clause 46 provides for the appointment and term of office of Junior Scottish Ministers. | |
Clause 47 provides for the appointment of staff by the Scottish Ministers. Service in their staff and in certain other positions is to be service in the Home Civil Service. It also makes provision in relation to the salary, allowances and pension payable in respect of such persons. | |
Clause 48 makes provision concerning the conferral of statutory functions on the Scottish Ministers and the exercise of functions of the Scottish Ministers, the First Minister or the Lord Advocate; and for the treatment of acts and omissions of, and property acquired or liabilities incurred by, a member of the Scottish Executive. | |
Clause 49 provides for the transfer to the Scottish Ministers of functions exercisable by a Minister of the Crown in or as regards Scotland which are not functions so far as they relate to reserved matters or retained functions of the Lord Advocate or. | |
Clause 50 defines the scope of the powers to make subordinate legislation transferred under Clause 49. Provision may be made in the subordinate legislation if, and only if, the provision would be within the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament. | |
Clause 51 provides that, subject to one exception, any statutory requirement for a function to be exercised only with the agreement of, or after consultation with, another Minister of the Crown does not apply to the exercise of the function by a member of the Scottish Executive by virtue of Clause 49. | |
Clause 52 provides for the concurrent exercise of certain powers by Ministers of the Crown despite the transfer of functions under Clause 49. | |
Clause 53 prohibits a member of the Scottish Executive from doing anything which is incompatible with European Community law or with the rights in the European Convention on Human Rights which are given effect to in law in the United Kingdom. Despite the transfer to the Scottish Ministers of functions in relation to observing and implementing obligations under Community law made by virtue of Clause 49, Ministers of the Crown continue to exercise functions as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972 | |
Clause 54 enables the Secretary of State by order to direct that any proposed action by a member of the Scottish Executive shall not be taken if it would be incompatible with international obligations of the United Kingdom. It also enables the Secretary of State by order to direct the Scottish Executive to take specified action where to do so is required for the purpose of giving effect to such obligations. The Secretary of State is also given power by order, in certain circumstances, to revoke subordinate legislation made by a member of the Scottish Executive | |
Clauses 55 and 57 make provision for the holding of property and the incurring of liabilities by the Scottish Ministers and the Lord Advocate; and for the acquiring of rights and the incurring of liabilities by the First Minister. | |
Clauses 56 and 58 enables subordinate legislation to provide for the transfer of certain property and liabilities to the Scottish Ministers in connection with the exercise of devolved functions and to the Lord Advocate in connection with the exercise of his retained functions. | |
Clause 59 enables subordinate legislation to provide for the transfer to the Scottish Ministers of statutory functions and for the adaptation of such functions. | |
Clause 60 provides for the transfer of certain property and liabilities to the Scottish Ministers in connection with the exercise of any functions transferred under Clause 59. | |
PART III | |
FINANCIAL PROVISIONS | |
Clause 61 establishes a Scottish Consolidated Fund and provides for the Secretary of State to make payments into the Fund out of money provided by Parliament. It also makes provision as to receipts of the Scottish Executive and other receipts which are payable into the Fund and provision as to banking services in respect of the Fund. | |
Clause 62 makes provision as to the circumstances in which sums may be paid out of the Scottish Consolidated Fund and as to the purposes for which such sums may be applied. | |
Clause 63 provides for the Scottish Ministers to have power to borrow from the Secretary of State in certain circumstances and subject to certain conditions. | |
Clause 64 provides a power for the Treasury to issue to the Secretary of State out of the National Loans Fund the sums required by him to lend to the Scottish Ministers under Clause 63, and sets a limit of £500m on the sum outstanding on loan at any time. This limit may be increased by the Secretary of State by order. | |
Clause 65 makes provision as to the interest rate to be charged on loans made by the Scottish Executive to bodies established by enactment. It also provides that such bodies may not, under a power conferred by an Act of the Scottish Parliament, borrow in a currency other than sterling except with the consent of the Scottish Ministers and the approval of the Treasury. | |
Clause 66 requires rules made by or under an Act of the Scottish Parliament to provide for a number of matters relating to financial control, accounts and audit. It also requires provision to be made for independent persons to exercise certain functions relating to these matters. | |
Clause 67 provides for certain outstanding sums which were lent by the Secretary of State out of the National Loans Fund to be repaid to the Scottish Ministers and paid into the Scottish Consolidated Fund, and for the Scottish Ministers to repay the sums received to the Secretary of State. | |
Clause 68 requires the Secretary of State to prepare for each financial year an account of the sums paid and received by him under Clauses 63, 64 and 67. This account is to be sent to the Comptroller and Auditor General, who will then examine it and report on it to Parliament. | |
PART IV | |
THE TAX-VARYING POWER | |
Clause 69 provides that the Scottish Parliament may pass a resolution providing for the basic rate of income tax for Scottish taxpayers to be increased or reduced so as to differ, by not more than 3%, from that determined by the UK Parliament. | |
Clause 70 requires a tax-varying resolution of the Scottish Parliament to relate to only a single year of assessment beginning after, but no more than 12 months after, the resolution. The clause prevents the tax-varying power from applying in relation to any year before the year 2000-01. Standing orders shall ensure that only a member of the Scottish Executive may move a motion for a tax-varying resolution. | |
Clause 71 defines the expression "Scottish taxpayer". A person is a Scottish taxpayer for a particular year if he is resident in the UK for tax purposes, and Scotland is the part of the UK with which he has the closest connection. Generally speaking, the latter criterion is satisfied by a person who has his principal UK home in Scotland or spends more of the year in Scotland than elsewhere in the UK. Special provision is made for members of the UK, European and Scottish Parliaments | |
Clause 72 makes provision to take account of changes in the UK income tax structure which would have a significant effect on the extent of the Scottish Parliament's tax-varying powers. It imposes a duty on the Treasury to indicate to the House of Commons whether an amendment of the tax-varying power is required as a consequence of such changes and, if they think an amendment is required, to make appropriate proposals. | |
Clause 73 applies where the basic rate of income tax has been increased for Scottish taxpayers. It requires the Inland Revenue to pay into the Scottish Consolidated Fund an amount equal to the estimated yield of the increased rate of tax to be paid by Scottish taxpayers in consequence of the Scottish Parliament's resolution. | |
Clause 74 applies where the basic rate of income tax has been reduced for Scottish taxpayers. It requires a payment to be made out of the Scottish Consolidated Fund to the Inland Revenue to allow for the shortfall in the yield of income tax resulting from the reduced rate of tax to be paid by Scottish taxpayers. | |
Clause 75 permits the Treasury by order to modify enactments as they consider necessary or expedient to take account of the fact that the Scottish Parliament has, is to have or has exercised tax-varying powers. It also provides power by order to exclude the effect of any tax-varying resolution in relation to certain enactments and to postpone the effect of such a resolution in relation to the operation of the PAYE system. | |
PART V | |
MISCELLANEOUS AND GENERAL | |
Clauses 76 to 78 provide for the payment by the Parliament of salaries, pensions, gratuities and allowances in respect of MSPs and members of the Scottish Executive (including junior Scottish Ministers). The Parliament is to abate the salary of any MSP where he receives a salary as a Member of Parliament or a Member of the European Parliament. | |
Clause 79 requires all MSPs, members of the Scottish Executive and junior Scottish Ministers to take an oath of allegiance. Members of the Scottish Executive are also required to take an official oath. | |
Clause 80 provides for MSPs, members of the Scottish Executive and junior Scottish Ministers to be excused from jury service. | |
Clause 81 concerns Scottish representation at Westminster. It repeals the rule in the Parliamentary Constituencies Act 1986 which provides that Scotland is to have not less than 71 parliamentary constituencies. It also provides for the Boundary Commission for Scotland in its next full review of Scottish parliamentary constituencies to regard the electoral quota for Scotland as the electoral quota then current for England. No constituency including the Orkney or Shetland Islands is to include any area other than those islands | |
Clause 82 provides for a new Ministerial office of the Advocate General for Scotland in the Government of the United Kingdom. | |
Clauses 83 to 85 make provision in relation to certain statutory public bodies which are specified in subordinate legislation as cross-border public bodies. Clause 83 requires Ministers of the Crown to consult the Scottish Ministers in relation to such bodies and Clause 84 confers a power to adapt such bodies by subordinate legislation. Clause 85 enables the transfer by subordinate legislation of certain property and liabilities of such bodies where an Act of the Scottish Parliament has provided for any of its functions to be no longer exercisable in or as regards Scotland | |
Clause 86 requires the Parliament to make provision for the investigation of certain complaints made to its members in respect of members of the Scottish Executive, the Registrar General of Births, Deaths and Marriages for Scotland, the Keeper of the Registers of Scotland and the Keeper of the Records of Scotland. | |
Clause 87 provides for arrangements to be made between the Scottish Ministers or the Lord Advocate and any Minister of the Crown, government department, holder of a public office, or public body for administrative, professional or technical services to be provided by one of them for the other. | |
Clause 88 modifies the effect of enactments dealing with private legislation where the power to make, confirm or approve orders has been transferred to the Scottish Ministers and provides for the Parliament to provide for its own special procedure. | |
Clause 89 sets out the role of the First Minister in the appointment and removal of Scottish judges. A recommendation of the First Minister for their removal from office requires the approval of two thirds of the members of the Parliament. | |
Clause 90 provides that the Treasury may in certain circumstances require the Scottish Ministers to provide information. | |
Clause 91 gives effect to Schedule 6 which establishes a procedure to ensure that certain questions about the legislative competence of the Parliament, the powers of the Scottish Executive and the powers of a Minister of the Crown in relation to Scotland can be dealt with by a special procedure of the courts. Generally speaking, the Judicial Committee of the Privy Council will be the final court for deciding such questions. | |
Clause 92 enables provision to be made by subordinate legislation to remedy any purported provision made by or under an Act of the Scottish Parliament, or any purported exercise of functions by a member of the Scottish Executive. | |
Clause 93 provides for a court or tribunal to remove, limit or suspend any retrospective effect of its decision that a provision of an Act of the Scottish Parliament or subordinate legislation is not within the powers of the Parliament or person making it. | |
Clause 94 provides for the membership of the Judicial Committee of the Privy Council for the purpose of proceedings under the Bill and enables certain powers to be conferred on the Judicial Committee in relation to such proceedings. | |
Clause 95 enables subordinate legislation to make such provision as is considered necessary or expedient in consequence of any provision made by or under an Act of the Scottish Parliament. | |
Clause 96 enables subordinate legislation to make such modifications in any pre-commencement enactment as appear necessary or expedient in consequence of the Bill. | |
Clause 97 enables subordinate legislation to make such provision as is considered appropriate for enabling or otherwise facilitating the transfer to the Scottish Ministers by virtue of clause 49 and 59 of functions exercisable by a Minister of the Crown. It also provides power to enable functions of government departments to be exercised separately in or as regards Scotland. | |
Clause 98 enables the Secretary of State by order to provide for individuals to be treated for the purposes of any of the matters that are reserved by virtue of Head 6 (Social Security) of Schedule 5 as if they were, or were not, Scottish taxpayers; and to provide in relation to any year of assessment that, for those purposes, the basic rate in relation to the income of Scottish taxpayers shall be treated as being such rate as is specified in the order instead of the rate increased or reduced for that year by virtue of a tax-varying resolution of the Parliament passed after the beginning of the year | |
Clause 99 provides that Her Majesty may by Order in Council make provision for regulating fishing for salmon, trout, eels and freshwater fish in the River Tweed and the River Esk. | |
PART VI | |
SUPPLEMENTARY | |
Clauses 100 to 103 make general provision about the exercise of powers to make subordinate legislation under the Bill. | |
Clause 104 provides for certain statutory and documentary references to a Minister of the Crown to be read as, or to include, a reference to the Scottish Ministers where appropriate. | |
Clause 105 modifies the effect of enactments in relation to the exercise, by a member of the Scottish Executive or other persons, of certain functions to make, confirm or approve subordinate legislation. | |
Clause 106 provides that references in enactments to money paid into or out of the Consolidated Fund or out of money provided by Parliament cease to have effect in relation to functions, other than functions relating to reserved matters, which are exercisable in or as regards Scotland by any person other than a Minister of the Crown by virtue of Clause 52 or 53. References to sums charged on the Consolidated Fund are to be read instead as references to the Scottish Consolidated Fund | |
Clause 107 provides for reports which are required to be laid before Parliament to be laid instead, or in addition, before the Scottish Parliament. | |
Clause 108 extends the application of enactments to Crown land so that references to Ministers of the Crown and government departments include Scottish Ministers, the Lord Advocate and a member of the Scottish Executive as appropriate. | |
Clause 109 extends the Crown exemption from stamp duty to cover the Scottish Ministers, the Lord Advocate and the SPCB. | |
Clause 110 gives effect to Schedules 7 and 8 which contain modifications to enactments and repeals. | |
Clauses 111 to 116 deal with interpretation, expenses, commencement, extent and the short title of the Bill. | |
Financial effects of the Bill | |
This Bill will not lead to any increase in overall public expenditure funded by UK taxpayers as a whole. All expenditure under, or as a consequence of, this Bill will be contained within an overall budget for the Parliament or, in the case of costs incurred by UK Government Departments as employers as a result of the exercise of the Parliament's tax-varying power, will be contained within those Departments' programmes. The Parliament's budget will be the same as if the budget for the services under the control of the Parliament had continued to be provided under present arrangementsThe Bill makes provision for payments into the Scottish Consolidated Fund by the Secretary of State. This will merely replace the funding for that part of the services under the control of the Parliament which is currently voted by Parliament. Self-financed public expenditure in Scotland -i.e. spending not financed by UK taxpayers as a whole - may increase or decrease depending on how the Scottish Parliament elects to use its tax-varying powers and how it decides to treat self-financed spending by Scottish local authorities | |
The site, design and procurement method will determine the eventual cost of the Scottish Parliament building. | |
The additional annual running costs of the Scottish Parliament and Administration can only be estimated at this stage since the legislation allows the Parliament itself to make most decisions about its own procedures and the Scottish Executive to decide on its shape, the allocation of functions and its administrative requirements, including staff and accommodation. All running costs will be met from the Parliament's assigned budget. The costs will also depend on the decisions about the pay of MSPs which will in turn depend on advice to be submitted in due course by the Senior Salaries Review Body (SSRB)The best current estimate is that the total additional annual running costs, including salaries, pensions and allowances for MSPs, staff costs and accommodation costs will amount to between £20m and £30m. | |
The direct costs to the Government of establishing the mechanisms for administering the Parliament's tax varying power are estimated at around £10m. These costs will be incurred largely by the Inland Revenue. Running costs for the Government of the tax-varying power, again to be incurred by the Inland Revenue, are expected to be around £8m per annum, but may vary depending upon whether or not the Scottish Parliament chooses to vary the rate of tax. The Department of Social Security will also incur set-up costs of around £6m in changing its systems to accommodate the tax-varying powerTheir annual running costs are expected to be around £1m, but that estimate may vary depending on whether the Parliament chooses to vary the rate of tax. The administration costs incurred by the Inland Revenue and Department of Social Security will be met from the Scottish Consolidated Fund once it is established, and from the Scottish Block before then. Further work is being done to refine the provisional estimates quoted above. | |
If the Scottish Parliament should decide to use the tax-varying power, there would be consequential effects on eligibility to income-related benefits and on liabilities for child maintenance. These would involve extra public expenditure, estimated at up to £5 million a year, which would be met from the Scottish Consolidated Fund. If the full flexibility to vary tax is used there could be costs on appropriate personal pensions of the order of £4m, including set up costs. | |
Elections to the Parliament, which will normally be held every 4 years, will cost around £6m. The costs of the first elections will be met from the Consolidated Fund and offsetting savings will be found from other Scottish provision. The costs of subsequent elections will be met from the Scottish Consolidated Fund within the overall budget allocated to the Parliament. | |
Effect of the Bill on public service manpower | |
The provisional estimate is that some 200 staff will be needed to serve the Scottish Parliament. These staff will not be civil servants. The Parliament will decide on the most appropriate staffing structure. | |
The Scottish Executive will inherit responsibility for the staff of The Scottish Office and other Departments for which the Secretary of State for Scotland is currently responsible and the Lord Advocate's departments. The Scottish Executive is likely to need some increase in staff over and above current staff numbers to deal with new responsibilities currently falling to the Cabinet Office and HM Treasury; new responsibilities for policy development presently undertaken by Whitehall Departments; and to respond to the Scottish Parliament | |
The Secretary of State for Scotland will need the support of a small staff, as will the Advocate General for Scotland. | |
The Inland Revenue and Department for Social Security will need some additional manpower to establish and maintain the mechanisms for administering the Parliament's tax-varying power. | |
Business compliance cost assessment | |
Other than the tax-varying power, the Bill will have no significant direct impact on businesses, charities or voluntary organisations. | |
Collection of income tax from employees at the Scottish variable rate through the PAYE system will generate additional costs for employers in both the private and public sectors. Their setting up costs are estimated to be around £50m (which could be phased) and running costs at around £6-£15m. Costs will vary from employer to employer. |
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© Parliamentary copyright 1997 | Prepared 18 December 1997 |