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Mr. Dalyell: My right hon. Friend's charm, wit and verbal facility disguise that there has been no answer to a fundamental question. Can the Scottish Parliament of itself initiate a referendum on independence?

Mr. Dewar: I thought that I had answered that in reply to the hon. Member for Beaconsfield, who looked pleased with my answer because he felt that he had pinned me down. I saw him taking his slightly aggressively green biro pen to note my words. I accept that this is a serious matter. It is my view that matters relating to reserved matters are also reserved. It would not be competent for the Scottish Parliament to spend money on such a matter in those circumstances. The hon. Member for Banff and Buchan may dispute that, but we can return to this argument on another occasion.

Mr. Salmond: Will the Secretary of State give way?

Mr. Dewar: No, because I will be criticised for not covering the amendments, and I will be sorry if that happens. If the hon. Gentleman would haud his wheesht, we can come back to the matter.

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Government amendments Nos. 131 and 132 make a technical alteration to the way in which clause 28 introduces schedule 4, which reflects the way in which the schedule has been restructured by the other amendments. Government amendments Nos. 203 and 243 are purely drafting amendments. The amendment to schedule 7 deletes two lines which previously protected certain provisions in the European Communities Act 1972 from the general modifications made by clause 106. Amendment No. 203 re-enacts this as part of clause 106 itself.

Parliamentary counsel concluded that it is better drafting if the amendment is made by virtue of clause 106 rather than schedule 7. The policy remains unchanged. Why the Parliamentary Counsel came to this conclusion is not entirely clear to me. However, as they are men of skill--whose expertise has been effectively and creditably displayed in the drafting--I am glad to take their advice.

There are also some technical amendments to the way in which schedule 4 specifies provisions of the Scotland Bill and other enactments modified by it which are or are not protected from further modification by the Scottish Parliament. In particular, Government amendment No. 224 provides that the Scottish Parliament will be able to modify clause 22(7) which specifies the penalty for a breach of subsection (6) of that clause on Members' interests.

I have no doubt that there will be a good deal of interest--I cannot avoid the word--in Members' interests in the Scottish Parliament, as there has been in this House. It is a matter for increasing study and, sometimes, speculation. The amendments are consistent with the devolution of matters relating to the criminal law.

Mr. Heald: The Secretary of State referred to amendment No. 223 and, earlier, he said that the Union is a reserved matter. Under "Acts of Union" in schedule 4--if the amendment is agreed to--the passage will read:


Does that mean that there are aspects of the Acts of Union which may be modified by the Scottish Parliament, and if so, what?

Mr. Dewar: This is a belt-and-braces provision which means exactly what it says. The amendments to schedule 4 entrench the provisions of the Acts of Union between England and Scotland which relate to freedom of trade. There might be a semi-respectable argument for saying that that is hardly necessary because the matteris reserved, as the hon. Member for North-East Hertfordshire (Mr. Heald) said. This is not a subject for contention, because there is one thing which unites everyone in the House; whatever final settlement is reached, it is clear that Scotland and England will always need access to each other's markets. Free trade will be a sine qua non. The amendment makes that clear.

Government amendment No. 227 provides that the Scottish Parliament can modify the Bill's provisions and sets out that Parliament's procedure on subordinate legislation made under the Bill that is subject to procedure in that Parliament. Again, that is consistent--a useful word in this context--with the Parliament having control over its own procedures. As the House will know,

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we intend to be as flexible as possible--and impose as little as possible restrictive legislation--on the Parliament's procedures and internal arrangements. We hope that the Scottish Parliament can, when the time comes, consider in an enlightened and sensible way the evolution of its own procedures. We do not assume that it will follow the procedures of the House of Commons. It may do so, as some of our rules are based on common sense and have evolved over many years, but it may find new approaches and procedures--we want to leave maximum flexibility for that.

Government amendment No. 227 also clarifies that the amendments made in schedule 7 to enactments within the devolved field that relate to the role of the Advocate General are to be protected from modification. Hon. Members will remember that the Advocate General is a new inhabitant of the Government--he will be the Law Officer responsible for advising the United Kingdom Administration on Scottish law.

Government amendments Nos. 228 and 229 extend the list of bodies and offices to which the Scottish Parliament can amend references in the Bill. Government amendment No. 234 is a technical amendment to simplify and clarify the provision in part III of schedule 5 that states how references to enactments in the schedule are to be interpreted. Those references are mostly to the subject matter of enactments, and are used as descriptions of reserved matters. As before, they are to be read as references to the enactments as they have effect on D-day--the day when the Parliament assumes its powers. However, for enactments that cease to have effect between enactment of the Scotland Bill and D-day, the references are to be read as references to the enactments as they had effect immediately before that time.

If I may hurry on, I shall refer the House to Government amendments Nos. 256 and 258. Clause 29 provides for the list of reserved matters in schedule 5 to be varied by Orders in Council, subject to affirmative resolution at both Westminster and Holyrood. The amendments would enable the consequences of such changes to be provided for.

Government amendment No. 256 and the first part of Government amendment No. 258 transfer the provision that enables a clause 29 order to modify enactments and other documents from clause 29 to clause 100, where such provisions are generally set out. I do not think that I should labour these points. The amendments tidy up the Bill's drafting in what I hope hon. Members will feel are helpful ways.

Government amendment No. 244 is a purely technical amendment to ensure that references to an Act of Parliament in section 2 of the European Communities Act 1972 are read as references to Acts of the Scottish Parliament in appropriate cases. Government amendment No. 245 amends section 3(4) of the European Communities Act 1972, which deals with Community instruments in the custody of a Government Department that may be used as evidence in legal proceedings. That extends the scope of the section to include any part of the Scottish Administration.

I apologise to the hon. Member for North-East Hertfordshire, who I think is preparing to speak, for having left him only two or three minutes in which to make what may be complex points. I thought that it was only polite to try to deal with some of the points that were

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being put to me and--even though it was a rather hurried Cook's tour--to survey the range of amendments in the group.

Mr. Heald: We are all pleased to recognise that the right hon. Gentleman has made a colourful picture from what might otherwise be dull material. I want first to ask him about schedule 4 as amended. Government amendment No. 223 lists various provisions that may not be modified, including--as it will be--the Scotland Act itself. However, amendment No. 227 states that the Scottish Parliament may modify section 100, under which a Scottish Minister may exercise his powers by statutory instrument, and section 101(3), which provides for the affirmative procedure.

Is the Secretary of State satisfied that consistency can be achieved between the measures passed here and those passed by the Scottish Parliament? If the documents are not of the same form and character, difficulties may arise.

Clause 101(5) says that a recommendation for an Order in council for Scotland can be made only after the matter has been through the House on the affirmative resolution procedure. What are the minimum criteria to be applied for such a recommendation to Her Majesty to have proper force and legitimacy? Clearly, we are working on the basis of a set of parameters and safeguards for subordinate legislation, to ensure that we know exactly how the powers are to be exercised. If there are to be modifications, are there any limits within which that is to happen, and does Parliament have any say in how it might be achieved?

10 pm

What is the interaction between the European Communities Act 1972 and the Consolidated Fund as regards the Scottish functions referred to in Government amendment No. 203? The Secretary of State may be able to explain why the provisions of clause 106(2) and (3) do not apply; as time is short, a letter would be satisfactory.

Can the Secretary of State confirm that both Westminster and Edinburgh would have to pass an order under Government amendment No. 258 and that the procedure would always allow for adequate debate on such orders in both legislatures, given that reserved powers are concerned? What is the interaction between the amendment, providing as it will for a two-way street with Orders in Council, and clause 27(7)? Does the power of this Parliament remain undiminished, and if so, how?


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