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9.15 pm

Mr. Collins: My hon. Friend is being a little ungenerous. He should know that, in this Government, even the Foreign Office does not follow British foreign policy.

Dr. Fox: I shall not be drawn into the debate on the Foreign Office. It has had enough damage done to it for one day. A little kindness would be in order at this time of the evening.

How will new clause 19 work? The Minister has outlined to us tonight three mechanisms by which an Order in Council may be made. It may be made

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    "by a Minister of the Crown instead of by the member of the Scottish Executive . . . by a Minister of the Crown concurrently with the member of the Scottish Executive, or . . . by a Minister of the Crown only with the agreement of, or after consultation with, a member of the Scottish Executive."

Exactly who will be in charge of initiating which process is taken forward? At what level of Government will that decision be made? That seems crucial in maintaining the political balance between Westminster and the Scottish Parliament, and maintaining the authority of Ministers of the Crown in relation to Ministers in the Scottish Executive. If that is not made clear at this point, there is plenty of room for misinterpretation later, for mischief making and for unnecessary tension.

The Government have tabled new clause 19 as a means of clarifying one or two of the problems which they identified in the drafting of the Bill earlier. But new clause 19, lacking any specific indication of who will initiate the process, who will be responsible for it and who will oversee it, seems to lead toward ever greater confusion.

The House would be grateful to the Minister if he could give us a far more detailed explanation of exactly how the mechanisms that will bring new clause 19 into play will work in practice. That is not clear from the amendments that have been tabled.

Mr. Dalyell: At an earlier stage in the Bill, I raised the question of a Scottish Parliament and Lockerbie. The hon. Member for Banff and Buchan (Mr. Salmond) acidly commented that at last I had found a reason for supporting the Scottish Parliament. With that introduction, I come to amendment No. 143 to clause 52, which states:

My hon. Friend the Minister may recollect that, the night before he brought in the Bill, there was an Adjournment debate on Lockerbie. I think that he is fully cognisant of the problem, but, in terms of amendment No. 143, would Lockerbie, and all that goes with it, be the responsibility of the United Kingdom Parliament or the Parliament in Edinburgh?

Mr. Hogg: I want to follow on from the questions put by my hon. Friend the Member for Woodspring (Dr. Fox) on new clause 19. In particular, I am concerned with subsection (1)(a). I should be extremely grateful if the Minister could explain a little more clearly how that will work. It at least raises the possibility of a quite serious democratic deficit.

As I understand new clause 19(1)(a), an Order in Council may provide for a Minister of the Crown to exercise any devolved functions performed by a member of the Scottish Executive. First, will the Order in Council, under the affirmative procedure, be discussed in the Scottish Parliament and the Westminster Parliament, or in only one Parliament? An Order in Council in respect of a Minister of the Crown should be dealt with only at Westminster, not in the Scottish Parliament. I would welcome clarification of that matter.

Secondly, and differently, as I understand new clause 19(1)(a), the power under the Order in Council could be general and continuing--not specific to the performance of an individual function, but enabling a Minister of the

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Crown to perform for an extended period the functions usually performed by a member of the Scottish Executive. I would also welcome clarification of that matter.

Lastly and most seriously, assuming that an Order in Council is made empowering a Minister of the Crown to perform the functions usually performed by a member of the Scottish Executive, the Minister of the Crown would not be accountable to the Scottish Parliament, and could give no account for his or her doings to it. Indeed, it is bizarre to suppose that a Minister of the Crown could give an account in this place, because we are, by reason of other measures, precluded from examining devolved business.

If a Minister of the Crown were given powers under new clause 19(1)(a) in respect of business usually transacted by members of the Scottish Executive, to whom would he be accountable? Not to the Scottish Parliament, because he would not be available to it. Would he be accountable to us? We will have no authority over what happens in Scotland, however, so I strongly suspect that new clause 19(1)(a) will create a serious democratic deficit. I very much look forward to hearing what the Minister has to tell us.

Mr. McLeish: I shall deal with new clause 19 first, and try a further explanation. We are devising a structure that will allow Scottish Executive Ministers and Ministers of the Crown at Westminster to deal with devolved and reserved competencies in an orderly fashion. I make that clear to provide context for last question asked by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg).

New clause 19 will enable the transfer, with the agreement of both Parliaments, of functions exercisable by Scottish Ministers--

Mr. Hogg: I referred to new clause 19(1)(a).

Mr. McLeish: With respect, the right hon. and learned Gentleman asked for answers. I intend to give them.

Mr. Hogg: The Minister is doing his best.

Mr. Deputy Speaker: Order. The Minister has not given way.

Mr. Hogg: I think that the Minister was giving way.

Mr. Deputy Speaker: The Minister has not so far given way.

Mr. McLeish: With the greatest respect, and accepting the right hon. and learned Gentleman's experience in the House, allow me to go through the points he made. I am keen to do so, because he asked a specific question about agreement in both Parliaments. We are talking about functions being handed down--[Interruption.] Would the right hon. and learned Gentleman care to listen?

We are dealing with a simple process concerning reserved and devolved functions and Orders in Council, on which there must be agreement. Schedule 5 deals with reserved competencies. There can be adjustments, but they must be agreed by both Houses.

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The next issue is where the Order in Council would be dealt with. First, there must be concurrent agreement on an Order in Council straddling reserved and devolved powers. Secondly, some Orders in Council will be dealt with entirely by the Scottish Parliament, because they relate to devolved competencies. Finally, Orders in Council relating to reserved matters are dealt with at Westminster. The position is not as complex as hon. Members are trying to make out. We are trying to give the clauses in the Bill some structure and to refine them so that there is little doubt, confusion and ambiguity about how orders will be dealt with as the process of devolution unfolds.

Dr. Fox: Subsection (1) of new clause 19 states:

Subsection (2) states that, where an order is made under subsection (1)(a), it may be

    "exercisable by the Minister of the Crown free from any such requirement"

to consult. How is that different from what my right hon. and learned Friend suggested, which was that the new clause creates a democratic deficit as a means of bypassing the mechanism that the Minister has just outlined?

Mr. McLeish: There is no case for any democratic deficit. The new clause is intended to help and to simplify the procedures involved.

Dr. Fox indicated dissent.

Mr. McLeish: The hon. Gentleman shakes his head. I assure him that that is the purpose of the new clause. We have no intention of bypassing any particular process. The Bill is designed so that the Westminster Government and the Scottish Executive will have simple processes that will be tried and understood. That is essential for devolution to work.

Mr. Hogg: Let us assume that an Order in Council is made that grants the Minister of the Crown some authority under the Order in Council. Does the Minister concede that the Minister of the Crown cannot be accountable to the Scottish Parliament? To whom is the Minister of the Crown accountable for the exercise of the powers conferred on him under the Order in Council?

Mr. McLeish: There will be a permanent transfer of Executive powers, and he will be responsible to Westminster. That is the terminology of the Bill, and it is straightforward.

Mr. Grieve: I appreciate the Minister's comments. Looked at in one way, what he says must be correct. However, in view of the discussion that we have had about the limits on the powers of the Secretary of State for Scotland--I assume that he would be exercising these powers--and the ability of the House to question it, if that unlikely turn of events were to happen, would it not be

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impossible under the Standing Orders of the House, as they would then be, for us to question him about these matters?

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