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Mr. Deputy Speaker: With this, it will be convenient to discuss Lords amendments Nos. 114 to 118.
Mr. McLeish: This is a group of technical amendments, which is designed to ensure that clauses 83 to 85 make appropriate provision for cross-border public authorities--that is, those authorities whose functions cross the reserved-devolved divide and which are designated by an Order in Council under clause 83.
The most important amendments are Nos. 114 and 118, which make it clear that the clause 84 power can modify the application of clauses 83(1) and 52(4), and amendment No. 116, which makes it clear that an order under clause 84 can confer new functions. The other amendments clarify the wording of the clauses or are consequential to other amendments.
Mr. Oliver Letwin (West Dorset):
I do not want to detain the House unduly, but I draw the Minister's attention to amendment No. 113, which he barely mentioned, because it gives rise to an interesting question. I have laboured manfully to understand the import of the amendment and consulted noble Lords who were active in the discussions in another place.
First, how does the Minister interpret the difference in clause 83, to which amendment No. 113 refers, between a function
Secondly, will the Minister cast more light on the connection between the amendments and the draft Cross-Border Public Authorities (Specification) Order, which was introduced in another place? In particular, will he clarify whether all the bodies specified in the order are cross-border in the normal use of that term? If so, how could they have functions to which clauses 107 and 108 ought not to apply, which would be the effect of amendment No. 113?
My final question relates to earlier questions about audit. Who will be responsible for the audit of those authorities and how will that relate to the effect of amendment No. 113, which removes under clause 83 the application of clause 107 to those bodies, given that clause 107 deals specifically with whether moneys paid to those authorities will come out of the Scottish Consolidated Fund?
Mr. McLeish:
I should, perhaps, have dealt with those issues before, but, in the interests of brevity, I did not. I shall do so now.
Government amendment No. 113 is a consequential amendment. It removes a reference to proposed sections 107 and 108 in clause 83, which is made redundant by amendment No. 180 to clause 107.
Government amendments Nos. 114 and 118 make it clear that a clause 84 order can modify the application of clauses 83(1) and 52(4) in relation to any cross-border public authority. The bodies in the order referred to by the hon. Member for West Dorset (Mr. Letwin) are cross-border public authorities. That means, for example, that an Order in Council under clause 84 could apply clause 49 in relation to certain ministerial functions in relation to the authority so that those functions would transfer to Scottish Ministers.
Government amendment No. 115 simply makes it clear that an order made under clause 84 may make provision in respect of any particular function of an authority. At present, it could be read as enabling provision to be made only in respect of all the functions of an authority. That would be too restrictive. It is a technical amendment.
Government amendment No. 116 introduces a new paragraph in clause 84(2) to make it clear that an order under it can confer new functions. That might be used, for example, to give the Scottish Ministers a new function of determining the form of accounts of a cross-border public authority.
Government amendment No. 117 is a drafting amendment that simply deletes the redundant words "if any" from clause 84(2)(c). That subsection would then
simply provide that an order under clause 84 would be able to modify the constitution of a cross-border public authority. One cannot amend the constitution of an authority that does not have one.
A draft of the order that would be made under clause 83 was placed in the Library on 29 July. Examples of bodies include the Forestry Commission, the Meat and Livestock Commission, the British Waterways Board and the Intervention Board for Agricultural Produce.
It will be useful if I also put on record an explanation of the context of clause 83. The policy is that it should be for the Scottish Parliament to decide whether cross-border public authorities should continue to operate after devolution as they do at present. The Government envisage, however, that the Scottish Parliament will, generally speaking, wish existing arrangements to continue to operate to take advantage of sharing knowledge and expertise, and of the greater efficiency in the use of resources. The provisions of clauses 83 to 85 give effect to that policy.
Public bodies, Government Departments, office-holders or offices that meet the criteria set out in clause 83(6) may be specified as cross-border public authorities under an Order in Council made under that subsection. If an authority is so specified, certain provisions of the Bill are disapplied in respect of functions of, and functions specifically exercisable in relation to, the authority in question.
The amendments, which are genuinely technical, seek only to improve the Bill passed in the other place and are certainly worthy of support.
The auditing of cross-border public authorities was dealt with in the previous group of amendments. We seek to provide that only one auditing authority need be involved, even though there is a cross-border public body that straddles the reserve devolved function. The reference to auditing and the control of expenditure is clear, but to try to minimise the amount of auditing, it is better that one Parliament takes responsibility for that, rather than having dual auditing.
Mr. Dalyell:
I am not trying to be difficult, but those could be complex matters. Is there to be a lead authority, depending on which had or was thought to have the greater share of the business?
Mr. McLeish:
Essentially, the order provides for cross-border public authorities to be established. That is important. These are matters for which the Scottish Parliament could in future decide to have its own body, rather than be part of a UK set-up. In the interim, we are trying, first, to avoid dual auditing, which makes sense. Secondly, it could fall to the National Audit Office to perform the task, according to discussions that will take place. Determining the auditing authority will be a matter of common sense.
When we refer to cross-border public authorities, we are referring to the relationship between the United Kingdom and Scotland, but that also takes cognisance of the fact that Northern Ireland and Wales are part of the set-up. The Bill tries to clarify that, so that when we set up bodies, regardless of whether Scotland decides to set up its own bodies, we have a working system that eases the transition to a new system that will work efficiently.
Dr. Fox:
What the Minister is saying about avoiding dual auditing is self-evidently sensible. Will there be a
Mr. McLeish:
That is also a fair question. There have been extensive discussions with all the organisations because it is important that we get it right. When clause 84 orders are made in relation to specific bodies, specific auditing requirements will be defined. As to specific orders under clause 84, we want to ensure that each body is taken care of and has its proper procedures established so that there is no confusion as to who is taking the lead role in any particular aspect of a body's work.
Mr. Letwin:
The Minister described the amendment as "technical", and I accept that. However, I am not sure that his answer was technical--if it was, it was so technical that I did not understand it. I press him once more on this point for the sake of clarity. Under amendment No. 113, the application of proposed sections 107 and 108 is disapplied when dealing with a function
Mr. McLeish:
I can describe Government amendment No. 113, which is straightforward, but technical. It deletes the reference in clause 83 to the disapplication of clauses 107 and 108 in respect of the functions of cross-border public authorities. The amendment is purely consequential on amendment No. 180, which was debated in the previous group. Amendment No. 180 amends clause 107 to make it clear that the functions of cross-border public authorities are not Scottish functions for the purposes of that clause and clause 108. Therefore, there is no need to continue to disapply clauses 107 and 108 in relation to the functions of cross-border public authorities.
"which is specifically exercisable in relation to a cross-border public authority"
and a cross-border authority's function? That seems to be the distinction on which amendment No. 113 is relying when it excludes proposed sections 107 and 108 from the second part of clause 83, which relates to the function of such an authority as opposed to the specific exercise of a function in relation to a cross-border public authority. I ask because it is not certain that a court would be clear about the difference. It would be extremely helpful if the Minister could clarify that point.
"which is specifically exercisable in relation to a cross-border public authority".
However, proposed sections 107 and 108 are also disapplied when we are dealing not with that but with
"any function of such an authority".
I do not understand--and I do not see how a judge will understand--the difference between those two phrases. Could the Minister provide a concrete example of that difference?
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