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'(3A) The power in subsection (1) is not exercisable in relation to a Minister of the Crown'.

Amendment No. 103, in page 11, leave out lines 23 and 24.

29 Jan 1998 : Column 572

Government amendment No. 225.

Amendment No. 164, in page 11, line 25, leave out

'which exercises the judicial power of the State'.

Amendment No. 165, in page 11, line 29, after 'otherwise)', insert

'and if two thirds of more of its membership so resolve'.

Amendment No. 166, in page 12, line 3, after 'Scotland', add

'or in a court exercising jurisdiction in those parts of the United Kingdom in which the person resides or works'.

Government amendment No. 226.

Amendment No. 167, in clause 24, clause 24, page 12, line 8, after 'refuses', insert

'or fails without reasonable excuse,'.

Amendment No. 249, in clause 24, page 12, line 8, after 'refuses' insert

'or fails without reasonable cause.'.

Government amendment No. 227.

Amendment No. 168, in clause 25, clause 25, page 12, line 29, after 'oath', insert 'or affirmation'.

Government amendment No. 228.

Amendment No. 104, in clause 83, clause 83, page 38, line 21, at end insert--

'(3A) The Parliament shall be entitled to require any representative of a cross-border public body--
(a) to attend its proceedings for the purpose of giving evidence, or
(b) to produce documents in his custody or under his control,
in respect of matters within the responsibility of that body which relate to or affect Scotland.'.

New clause 2--Power to request witnesses and documents--

'(1) The Parliament may request any person--
(a) to attend its proceedings for the purpose of giving evidence, or
(b) to produce documents in his custody or under his control, relating to any of the matters mentioned in subsection (2).
(2) The matters to which subsection (1)(b) applies are reserved matters in so far as they affect Scotland.
(3) In the event of a person to whom this section applies declining to give evidence or produce documents, he shall inform the Clerk in writing of the reasons for his refusal.
(4) The power contained in subsection (1) may be exercised by a committee or sub-committee of the Parliament only if the committee or sub-committee is expressly authorised to do so (whether by standing orders or otherwise).
(5) The Clerk shall give the person in question notice in writing specifying--
(a) the time and place at which the person is invited to attend and the particular matters relating to which he is requested to give evidence, or
(b) the documents, or types of documents, which he is to produce, the date by which he is requested to produce them and the particular matters to which they relate.
(6) Such notice shall be given--
(a) in the case of an individual, by sending it, by registered post or the recorded delivery service, addressed to him at his usual or last known address or, where he has given an address for service, at that address, or
(b) in any other case, by sending it, by registered post or the recorded delivery service, addressed to the person at the person's registered or principal office.

29 Jan 1998 : Column 573

(7) A person is not obliged under this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in proceedings in a court in Scotland.'.

Mr. Jenkin: I shall endeavour to explain to the Committee what the amendments are about, for the benefit of those who do not understand--a category which, until a little while ago, included me.

We are referring the power to summon witnesses and documents. This Parliament's power to summon witnesses and documents is absolute; it is one of our absolute prerogatives. It is not recorded in any statute, but is something that we inherited, so to speak, from the Crown. It is referred to only in "Erskine May", which has no statutory authority but is one of the sources of our constitution.

The power is extremely draconian, and it is one that we rarely use. If the Scottish Parliament is to have analogous powers, they will have to be granted by this Parliament by statute. That is what the clause is principally about.

It is proposed that the Scottish Parliament's powers will be prescribed, rather than unlimited like the powers of this Parliament. The debate will be about what prescriptions and limits for those powers exist, and how they are likely to be applied.

The amendments reflect two main concerns: first, that the extremely draconian power should be exercised carefully, not lightly or wantonly; and secondly, that the power should not extend to summoning people and documents that are not the responsibility of the Scottish Parliament.

Amendment No. 163 would limit the use of the power to circumstances in which a two thirds majority of the Parliament votes to exercise it, and Amendment No. 165 would apply that principle to Committees. The exercise of the power could be left entirely to the Scottish Parliament's discretion, but it is rarely used at Westminster, mainly because, when people are invited to attend Parliament or a Committee, they regard it as a privilege and an opportunity to present their views. Even the most reluctant witnesses are encouraged to attend voluntarily by a Clerk merely saying that we have the power. Nevertheless, the power is available for use.

Making the power explicit in the Bill makes it seem a more everyday power than it should be. Our contention is simply that the draconian power should be used only when there is consensus in the Scottish Parliament. In this Parliament, it would be unlikely for even the majority party to require the attendance of a witness or require documents to be produced against the wishes of, for example, the main Opposition party. We want to reflect in the Bill, for the Scottish Parliament, that natural tendency to consensus.

Amendments Nos. 161, 162 and 164 are concerned with who should be subject to the power. Matters are not made any simpler for us by Government amendment No. 224. It appears that the Government want to trim the Parliament's right to summon Ministers of the Crown from the original intention as expressed in the Bill, because under the amendment Ministers would not be subject to compulsion on questions relating to functions exercisable under joint responsibility, but would still be subject to it on devolved matters in which they have a direct involvement.

29 Jan 1998 : Column 574

I look forward to a full explanation of the reasons behind amendment No. 224 and of the distinctions intended in the wording. My fear is that the natural lines of accountability will still be blurred. The principle should surely be that United Kingdom Ministers are responsible and answerable to the United Kingdom Parliament, and that Scottish Ministers should be responsible to the Scottish Parliament.

Where their responsibilities overlap, we should not expect Scottish Ministers to be responsible to this Parliament or United Kingdom Ministers to be responsible to the Scottish Parliament. They must explain their functions and their relationships with each other to their own respective Parliaments.

Obviously, as we are a sovereign Parliament, we would have the power to summon Scottish Ministers to appear here; but I would suggest that we would want to use it extremely sparingly. Our intention in amendments Nos. 161 and 162 is to create clear lines of accountability, so that United Kingdom Ministers are not automatically expected to be answerable to the Scottish Parliament for what they do in the United Kingdom Government, although of course one would expect them to make themselves available as a resource for informing debate in the Scottish Parliament and to give evidence and information there when asked to do so. I should be interested in the Government's view of that principle.

Amendment No. 164 is designed to widen the exclusion of those acting in a judicial capacity. I am interested to see that--perhaps in the spirit of the new politics, which is finally beginning to touch the Conservative party--the Liberal Democrats are supporting our amendment.

It is obvious that judges should not be called to account to a legislature for their decisions, but the same surely applies to those who act in a judicial or quasi-judicial capacity, even if it is not a state capacity: for example, the heads of self-regulatory organisations; ombudsmen of private industries; arbitrators, who might be dealing with contracts or insurance matters; and--this may be a matter dear to the hearts of Liberal Democrats--the Church courts, which are non-state courts but have a judicial capacity none the less.

Amendments Nos. 167 and 168 are intended as clarifications and suggested improvements. The former would tighten the requirement for people to attend if summoned, and the latter would allow for an affirmation as an alternative to an oath.

The Government, I fear, have the luxury of a middle course, because the amendments tabled by the Scottish National party suggest that anyone in the United Kingdom should be subject to the power. That reminds us that we are dealing with United Kingdom legislation that has the force of law in England, Wales and Northern Ireland as well as Scotland. The nationalists would like to make any person in the United Kingdom who is concerned with the functions set out under subsection (2) subject to summons by the Scottish Parliament. One might say, "They would say that, wouldn't they?"

Judging by amendment No. 43, the hon. Member for Falkirk, West (Mr. Canavan) shares our view that Ministers of the Crown, who are answerable to the United Kingdom Parliament, should be immune from compulsion to attend the Scottish Parliament. If he does not, I should be interested to hear what he says.

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