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Clause 28

Legislative Competence

Mr. Wallace: I beg to move amendment No. 8, in page 13, line 32, leave out 'so far as' and insert

'only to the extent that'.

The First Deputy Chairman: With this, it will be convenient to discuss the following amendments: No. 170, in page 13, line 32, leave out 'so far as' and insert 'to the extent that'.

No. 173, in page 14, line 3, at end insert--

'(f) it is incompatible with any international treaty obligation'.

No. 171, in page 14, leave out lines 15 to 18.

No. 172, in page 14, leave out lines 19 to 22.

Mr. Wallace: I shall try to be brief, because the important function of this group of amendments is to give the Minister the opportunity to reply, and perhaps to explain precisely what the clause means.

Amendment No. 8 would leave out the words "so far as" and replace them with the words:

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If so amended, clause 28(1) would read:

    "An Act of the Scottish Parliament is not law only to the extent that any provision of the Act is outside the legislative competence of the Parliament."

The purpose of that is to make it clear that, if an Act had 20 sections, one of which went beyond the legislative competence of the Parliament, the whole Act would not fall. Instead, it would not be operative only to the extent of that one section. [Interruption.]

The First Deputy Chairman: Order. May we have a bit more quiet in the Chamber, please?

Mr. Wallace: I am sure that my explanation accords with what was intended, and if we could have that on the record, it would be helpful. The Secretary of State laughs, but he knows that there may be someone somewhere down the line who would try to suggest otherwise--and no doubt would make a small fortune from doing so. Our other aim is to try to elicit some elaboration of the provisions of the clause. As I understand it, if, for example, an amendment to Scots private law trespassed on, or had implications for, a reserved subject, so long as it did not materially go too far, it would be allowed, despite the fact that the subject was reserved. The wording, however, is not entirely transparent, and our understanding is not helped by the notes on clauses, which say:

Mr. Menzies Campbell (North-East Fife): In St. Andrews we think of nothing else.

Mr. Wallace: Quite so. But seriously, the Committee would be helped if we could be given some elaboration of what was intended. I think that the provision was intended to be helpful, and I am sure that the Minister of State, or even the Secretary of State, would be delighted to tell the Committee how helpful it is.

Mr. Salmond: Like the hon. and learned Member for Orkney and Shetland (Mr. Wallace), I am looking for assistance from the Minister. As the hon. and learned Gentleman said, subsection (6) reads:

I have gone through many Bills and there are always some clauses that cause difficulty, but that is one of the most confusing subsections that I have come across. I know that the Minister of State has such matters under his full command and will be able to elucidate and elaborate--[Interruption.]--thanks to the Secretary of State? That simply proves how difficult the clause is, because we are calling in the heavy artillery to try to elucidate. The Committee would be grateful if we could be given a fairly concise description.

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We are talking about matters of competence. We saw in the previous vote the Labour and Conservative parties join each other in the Lobby, delighted with the idea that they could box in the Scottish Parliament but leave it open to the Westminster Parliament to intrude on devolved matters.

We have also had a debate on competence this evening, in which the Conservative party was delighted with the idea that the Scots Parliament could not summon a United Kingdom Minister, but a United Kingdom Parliament could summon a Scots Minister. To many of us it looks as if we are seeing the beginning of a one-way street--a retreat from understandings and commitments.

I hope that, in his explanation of clause 28(6), the Secretary of State will be able to give us some reassurance on wider matters of competence, which are causing many of us considerable concern.

9.45 pm

Dr. Fox: Amendment No. 170 was suggested by the Law Society. Its reasoning was that subsection (1) appears to provide that the provisions of an Act of the Scottish Parliament may not be severable, in that, if any provision of an Act is outside the legislative competence of the Scottish Parliament, the Act is not law. Its feeling was that, if the Scottish Parliament were to enact a miscellaneous provisions Act, the legislation could be challenged, not on the section issued but on another totally unrelated section, as not being legislatively competent. If the Secretary of State is unable to reply immediately, we would welcome a written answer.

Amendment No. 173 is consistent with clause 33. It would be more logical to put the provision in clause 28, because clause 33 gives the Secretary of State discretion to make the decision, and the amendment would state at this part of the Bill that the matter does not lie within the legislative competence of the Parliament. That would be a neater arrangement.

I, too, do not think that the clause will win the plain English award this year. If the hon. and learned Member for Orkney and Shetland (Mr. Wallace) found it impenetrable, the Secretary of State can imagine what a non-lawyer made of it. In subsection (4), it seems as though the legislation is competent if it deals with reserved matters, in which case the Bill would bring Scottish law into line with United Kingdom law. I wonder whether that interpretation is correct.

Subsection (5) allows the Scottish Parliament to make "incidental or consequential" amendments to United Kingdom law where it relates to devolved matters. What does the Secretary of State have in mind? Can he give us examples of when that would happen? Why is it necessary, and does it not make nonsense of the concept of legislative competence in the clause?

Many of us found it difficult to understand the clause, so I look forward to the Secretary of State's detailed explanations.

Mrs. Fyfe: I am glad to know that I am not the only Member of Parliament who finds the clause puzzling. I should be very grateful for some clarification, especially as the clause relates to schedule 5, on which I have tabled some amendments.

Equal opportunities is a reserved power, except for a couple of minor modifications set out in the Bill; but would it be acceptable if the Scottish Parliament wanted

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to legislate on equal opportunities in relation to its own devolved powers? I am not sure whether the Bill as it stands means that the Westminster Parliament would legislate on everything to do with equal opportunities, even though it could not enforce equal opportunities in relation to powers that are devolved to the Scottish Parliament. We need clarity about that before we debate schedule 5.

Mr. Dalyell: Subsection (8) says:

The phrase "whenever passed or made" suggests that a Scottish Act can modify even an Act of Parliament passed subsequent to the enactment of the Bill. Given the mutually exclusive approach to vires, is it not difficult to imagine where it would be competent for both bodies to legislate and for the subsection to be applicable?

A narrow possibility is that the answer is the minor area of overlap mentioned earlier in the clause, but a wider possibility is that the subsection permits the Scottish Parliament to respond when Westminster uses its overriding power under clause 27(7). Surely that could set up the possibility of endless oscillation between the two Parliaments, which would be difficult to resolve. Will my right hon. Friend comment on what might be endless oscillation?

Mr. Dewar: My hon. Friend the Member for Linlithgow (Mr. Dalyell) could never be accused of endless oscillation. He goes forward with a steady pace, fixing his beam on one objective, and pursuing it relentlessly.

I shall deal briefly with amendments Nos. 8 and 170, which have the enormous advantage of being simple and understandable. I can confirm to the hon. and learned Member for Orkney and Shetland (Mr. Wallace) that his understanding of our intention is correct. Very simply, if there is a challenge to the vires of a provision in an Act of the Scottish Parliament, and if that is upheld, clearly the specific provision falls, but not the rest of the Act. That is the clarity which we are all anxious to establish. The argument is whether the phrase "so far as" is the proper way to do it.

I have never made myself out to be a draftsman--occasionally a barrack-room lawyer, but never a draftsman. I am advised--and I wish to take the advice that I have been given--that this is the right way to do it. Clearly, that is the interpretation that would be put upon it, and the interpretation that is intended. I hope that the hon. and learned Gentleman will not want to pursue that matter.

I am rather telescoping all the amendments, because we have only a few minutes to go. I wish to refer to some amendments which I concede are not quite so easy. Amendment No. 173 is sensible, the hon. Member for Woodspring (Dr. Fox) suggested, because it puts in the matter of international treaty obligations at a more convenient point. I am advised, and I think that the Committee will follow the argument, that it would be wrong to treat this as a vires matter.

The courts are not normally in a position to assess the compatibility of our domestic law with our international obligations unless those international obligations have

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been incorporated into our law. There are a number of international obligations which are not in that position. I accept that the position will, to some extent, be simplified when rights under the European convention on human rights and certain other matters of European Community law are imported into our law, but there will still be extensive areas which would not be justiciable, and therefore not suitable for the vires provision.

I do not need to stress to the House that I do not expect that machinery to be used in these particular circumstances. I would expect a Scottish Parliament--as with the UK Parliament--to recognise that, if we have international treaty obligations, our domestic law must not infringe and defy those obligations. If we accepted the amendment tabled by the hon. Member for Woodspring--in a fair and probing spirit--and if we did get such a case, we might be in a situation in which we had no fail-safe arrangement of the kind anticipated. I have simplified the matter, but, for that reason, I invite him to withdraw that amendment.

We now come to one or two amendments which are a little more complex. Perhaps it would be appropriate if I said a word or two about the impact of clause 28. I must tell the House--not in a patronising or mocking spirit--that it is a difficult clause. It took me a long time to begin to see the shape of it through the technicalities of the language, which are complex and make easy reading difficult--there is no doubt about that.

The hon. and learned Member for Orkney and Shetland gave us the benefit of the doubt by assuming that the clause is intended to be helpful, and I think it will be helpful. A lot of genuine political argument has been--I will not say raging--present in the Chamber about what the Bill is essentially trying to do. This is another example where we have tried to make sure that there is a proper balance of responsibility between Westminster and the Parliament in Edinburgh.

There is an understandable tendency for the hon. Member for Banff and Buchan (Mr. Salmond) to establish criteria for the propriety of the Bill or its virtue which can be met only by a total independence solution. That is unfortunate, because he is a man of some skill, who, I have no doubt, read the White Paper many times before he came to his decision to advocate a yes vote. I recognise that he had reservations and would have liked the scheme to go further, but it is not proper for him now to come forward and establish his reservations as the test, as he consistently tries to do.

We are the ones who have tried throughout to be consistent, which means that we have had on occasion to defend principles that are important in terms of the proper responsibilities of this House. We are determined that we will continue to do so, because that is what Scotland endorsed in the referendum--if we are to take the White Paper seriously, as we are constantly encouraged to do.

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