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Mr. Swinney: May I put another scenario to the Minister, where a one-way street might be difficult? The hon. Member for Dundee, East (Mr. McAllion) mentioned revising the Parliament's funding mechanism. If, in the circumstances, this House were to proceed with a review of the need for public expenditure, as the Treasury Select Committee suggested the House might wish to do in the future, the Westminster Parliament would be able to compel Scottish Members to make representations, but the Scottish Parliament would not be able to compel Westminster Ministers to take account of the fact that there were imbalances in spending in the rest of the United Kingdom, but not in Scotland. That would be totally unfair.

Mr. McLeish: The Government are not trying to conceal anything--we have been open. The point is obvious in terms of devolved and reserved powers, and invitations and summonses. I cannot be clearer in response to the point made by the hon. Member for Perth (Ms Cunningham) a few minutes ago.

Government amendment No. 225 seeks to amend subsection (4) to make it clear that the power to summon does not apply to a person in connection with discharging functions of a body that is concerned only with reserved matters. It takes account of the fact that someone might have two sets of responsibilities--one reserved and one devolved--or that the Parliament might want to call someone living in Scotland in connection with a devolved matter.

Mr. McAllion: I accept the distinction that my hon. Friend has drawn between reserved and devolved powers. He will remember, however, that the Labour party, under the Scottish Constitutional Convention, gave

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a commitment to a joint review of the Barnett-Goschen formula between the Scottish and Westminster Parliaments. It seems to be a serious watering down of that commitment to say that the Scottish Parliament should not have the power to summon Treasury Ministers so that they can take part, on an equal basis with the Westminster Parliament, in the joint review of the Barnett-Goschen formula.

Mr. McLeish: I do not want to get involved in a substantive discussion about the Barnett formula. The matter is simply not on the agenda, politically or in terms of the Bill. Where reserved matters are being discussing at Westminster, the Scottish Parliament will have the right to invite, not to summon. It is as clear-cut as that.

Mr. Swinney: The Minister is distinguishing between devolved and reserved powers. If the distinction is so clear, why do we have so many concordats to cover the grey areas, which seem to be the matters on which the Scottish Parliament should have the right to question UK Ministers and to compel them to answer?

Mr. McLeish: I am not aware that the matters that we are discussing are littered with concordats. I do not want to go over the points that hon. Members have raised.

The purpose of Government amendments Nos. 226 to 228 is to remove any doubt about when procurators fiscal may decline, in proceedings of the Scottish Parliament, to answer questions or produce documents relating to particular criminal cases.

Clause 26(3) enables the Lord Advocate or the Solicitor-General for Scotland to decline to answer questions or produce documents relating to the operation of the criminal prosecution system in a particular case if he considers that answering the question or producing the document might prejudice criminal proceedings in that case, or that it would otherwise be contrary to the public interest. In proceedings in this House, the Law Officers may also decline to answer questions on similar grounds.

The problem that we have encountered is whether that provision would entitle a procurator fiscal to decline to answer on the same grounds. In solemn proceedings, a procurator fiscal acts on behalf of, and in the name of, the Lord Advocate and would be entitled, under clause 26, to refuse to answer questions about any prosecution decisions on the basis that the Lord Advocate had instructed him not to answer. It would then be for the Parliament to decide whether to summon the Lord Advocate to pursue the matter.

However, there is room for doubt about whether a procurator fiscal would be so protected in respect of other proceedings, such as summary proceedings or petition procedure, where complaints run in the name of the procurator fiscal and prosecution decisions are taken by the procurator fiscal rather than in the name of, or by, the Lord Advocate. The amendments remove the scope for doubt.

Government amendment No. 226 adds subsection (9) to clause 23, to provide that a procurator fiscal in proceedings of the Scottish Parliament may decline to answer any question or produce any document relating to the operation of the criminal prosecution system in a

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particular case where the Lord Advocate considers that prejudice might be caused in that case, or that to do so would otherwise be contrary to the public interest, and has authorised him to decline to do so. If the Parliament is not satisfied, it can, of course, call the Lord Advocate to appear before it.

Amendment No. 43, tabled by my hon. Friend the Member for Falkirk, West (Mr. Canavan), would extend the Parliament's power to call for witnesses and documents in relation to devolved matters to include UK Ministers, and public servants and persons generally outside Scotland. In the Government's view that would go too far.

Under the clause as it stands, United Kingdom Ministers and civil servants may be required to give evidence if they have responsibilities relating to devolved matters concerning Scotland, or executively devolved matters. The same applies to anyone else outside Scotland who has such responsibilities. My hon. Friend's amendment would enable the Parliament to summon anyone, wherever they lived in the United Kingdom, irrespective of whether or not they had responsibilities relating to devolved matters. I hope that my hon. Friend will agree that the clause strikes the right balance, and I ask him not to press his amendment.

Amendments Nos. 163 and 165 would require the Parliament, and its Committees, to vote by a two-thirds majority before exercising the power of summons. In our view, the way in which the Parliament reaches a decision to use the power should be a matter for the Parliament itself. It is not appropriate for the Bill to impose such a requirement.

The Government cannot accept amendments Nos. 161 and 162. The right hon. Member for Devizes (Mr. Ancram) does not want the Scottish Parliament to be able to call Ministers of the Crown to give evidence to the Scottish Parliament in any circumstances. That would not be right. The Scottish Parliament should be able to call for evidence from Ministers of the Crown who discharge functions in relation to fully or executively devolved matters in Scotland. Such a situation may arise if a United Kingdom Minister continues to discharge functions relating to a public body in Scotland that is concerned with devolved as well as reserved matters, and which has been listed under an order under clause 83. We shall obviously deal with that procedure later. On that basis, I would ask the right hon. Gentleman not to press those amendments.

Amendment No. 164 seeks to delete the reference in clause 23(4) to the exercise of the judicial power of the state. The phrase is self-explanatory: it refers to those courts and tribunals whose functions are judicial in character. There are bodies called tribunals that do not exercise the judicial power of the state--a phrase previously used in legislation--and they ought not to be excluded from the Parliament's power to summon persons to give evidence. Given that clarification, I would ask the right hon. Gentleman not to press his amendment.

Mr. Wallace: Will the Minister clarify the position of children's hearings? Are they covered by this clause?

Mr. McLeish: My judgment is that they are not covered by this subsection, but I shall write to the hon. Gentleman on that point.

Mr. Dalyell: Is a judge of the European Court of Justice, the European Court of Human Rights or the

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International Court of Justice a judge of a court that exercises the judicial power of the state? My hon. Friend may want to say something about the Church of Scotland courts.

Mr. McLeish: On my hon. Friend's first point, I think that such a judge would be excluded. I shall extend him the courtesy of sending him details on that point, and on the other matter of the Church of Scotland.

Mr. Jenkin: Will the Minister send a copy to the Opposition?

Mr. McLeish: Of course, as a courtesy, the letters will be copied to the Opposition.

The Opposition raised the issue of the judicial power of the state, but the phrase is self-explanatory. However, I have agreed to provide letters of clarification on outstanding points, which I hope will deal with the matter.

Amendment No. 166 would add to subsection (8) a reference to a court in that part of the United Kingdom in which the person lives or works. At present, the clause affords a person who is required to give evidence or produce documents the same opportunity to refuse to answer a question or to produce a document as he would have if he were in court in Scotland. Given that the legal system in Scotland differs from that in other parts of the UK, not surprisingly the privileges recognised there are not identical to those recognised in Scottish courts. We do not consider that it would be either helpful or appropriate for the Scottish Parliament in its proceedings to attempt to recognise rights and privileges available in courts in other parts of the United Kingdom.

Amendments Nos. 167 and 249 would amend the provision that makes it an offence for a person not to answer a question put to him when he is attending proceedings of the Parliament. Although clause 24 provides that it is an offence to refuse to answer a question, a person is not obliged to answer questions unless they are about devolved or executively devolved matters.


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