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Clause 95

Power to make provision consequential on Acts of the Scottish Parliament.

Lords amendment: No. 139, in page 45, line 4, at end insert
("or made by legislation mentioned in subsection (2).
(2) The legislation is subordinate legislation under an Act of Parliament made by--
(a) a member of the Scottish Executive,
(b) a Scottish public authority with mixed functions or no reserved functions, or
(c) any other person (not being a Minister of the Crown) if the function of making the legislation is exercisable within devolved competence.")

Mr. McLeish: I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker: With this, it will be convenient to discuss Lords amendments Nos. 140 to 146, 152, 157, 158, 160 to 169, 174 to 179, 184 and 286, Lords amendment No. 286, and amendment (a) thereto.

Mr. McLeish: I am reluctant to say that the amendments are technical, but we do have a technical amendment to Lords amendment No. 286.

This large group of amendments deals with various powers under the Bill to make subordinate legislation. Among our aims is to clarify the scope of the power to split ministerial functions under clause 97.

We also aim to split quantitative obligations under clause 97. The amendments provide that, where the power in clause 97 is used to split a European Community or international obligation which is expressed in quantitative terms so that part of it can be transferred to Scottish Ministers, the order will not be made unless they have been consulted.

The amendments in the group also ensure that the Secretary of State's powers of intervention in clause 54 can be used to ensure that the Scottish Ministers' share of a quantitative obligation is met.

The general provisions about subordinate legislation have been redrafted to make them easier to use and to take on board recommendations of the Delegated Powers Scrutiny Committee in another place that subordinate

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legislation under the Bill which amends primary legislation should be subject to affirmative resolution procedure.

The amendments also deal with the transfer of property to Scottish Ministers, the Lord Advocate and the Scottish parliamentary corporate body.

Finally, the amendments deal with the making of provision consequential on Acts of the Scottish Parliament.

Dr. Fox: The Minister will be pleased to hear that I accept that most of the amendments in the group are purely technical. However, I shall probe him on one or two areas--not least on Lords amendment No. 146, which is fairly substantial.

My questions mainly concern the quantitative relationship. We could all think of many areas where such a relationship might apply. In such areas, the working relationship between the Westminster Government and the Scottish Parliament--the Scottish Executive--will be extraordinarily important.

By what mechanism will consultation take place? Given that international obligations are involved, and given that quantitative distribution is involved--say environmental examples, such as on carbon dioxide emissions, where Scotland would be expected to play its part in fulfilling Britain's international obligations--how will the process work in practice? Is this to be among the areas where there will be a concordat? Will the matter be set down on paper? Shall we know in advance how it will work? Or will it simply be left to good will?

The Minister says that no Westminster Government would give a quantitative responsibility on an international obligation to the Scottish Parliament without consultation. I believe that it is legitimate to ask what that consultation will consist of. Will it be a full written and clearly delineated consultation exercise, according to a procedure about which we shall know in advance? Or will there simply be a telephone call to say, "By the way, we have agreed that that is what it's going to be; now you have been consulted. That's it. Thank you very much"? There is a world of different between those two extremes.

Mr. Thomas McAvoy (Comptroller of Her Majesty's Household): How could you suggest such a thing?

Dr. Fox: When the hon. Gentleman has spent as long in government as the Conservatives did, he will know how such a situation can come about--although I hope, for the benefit of the rest of us, that he does not gain that experience.

What will the proposals mean? They make a difference. Earlier in the Bill's passage we said that, where there is potential for conflict between Westminster and the Scottish Parliament, we must consider what would happen in a worst-case scenario. I am not being flippant.A conflict might arise if the form of the consultation process had not been set out far enough in advance and we did not know the mechanisms according to which it would occur.

All I want is for the Minister to tell us the Government's thinking. The Secretary of State said that we must consider the worst-case scenario--that is what I

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am asking the Minister to do. What would happen if a Westminster Government were putting on to a Scottish Parliament what the Scottish Parliament thought was a disproportionate element of a quantitative international obligation? There does not seem to be a mechanism for resolving disputes. Subsection (4) of amendment No. 146 contains the words

    "Scottish Ministers have been consulted",

but we know no more about that. The Minister should tell us what that means.

6.30 pm

Amendments Nos. 160 to 169 represent a substantial rewriting of the Bill. We would argue that as a result of work done in another place, there has been a significant improvement in the Bill, compared with the original drafting that came to this House. However, as there has been such substantial rewriting and so many new points have been added, one wonders why that was not in the original Bill presented to the House.

Furthermore, given that substantial rewriting was required for a Bill that received an enormous amount of drafting time, and given that it was done in the Chamber to which those on the Government Front Bench are instinctively hostile, does not that reinforce the case for a revising Chamber? If ever there was such a case, it is made by these 10 amendments. The Government considered that there were so many flaws in the structure of their flagship legislation that they had to go back to the drawing board and draft it again.

It is surely legitimate for us to ask what would happen if this were a piece of Scottish Parliament legislation and there were no revising Chamber. What would the Government do then? In the new, improved form of this section of the Bill, hon. Members on both sides of the House have much to be grateful to the other place for. Without that revising Chamber, what would we have done?

Mr. Dalyell: I realise that we are short of time, but my curiosity overcomes me. Do hon. Members on the Conservative Front Bench want a revising Chamber?

Dr. Fox: In all the previous stages of the Bill we have recognised that the lack of any revision mechanism would be a serious deficit in the procedures of the Scottish Parliament. The hon. Gentleman will know that in the other place we tabled amendments to try to introduce time lags in the Bill as a substitute for a separate revising Chamber, so that those who had doubts about the contents of and procedures in a Bill would have time to make representations. That, of course, has disappeared.

The Minister speaks of the improved drafting of the Bill and the amendments that the Government tabled. The Government could not have done that under the procedures in their own Bill. The irony is not lost on us. Let us hope that the deficiencies do not cause poor legislation to be introduced in the Scottish Parliament.

Mr. Desmond Swayne (New Forest, West): I agree with my hon. Friend about the desirability of the revising Chamber and the way in which that is highlighted by the

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amendment. No doubt the Minister would reply that the deficiency is made up for by extensive reliance on pre-legislative scrutiny, but that depends heavily on the public and on public and professional bodies doing their work. That is a largely uncharted course and unproven--but I digress.

My question is simple, and it arises from reading the Bill with an untrained mind--certainly not a legal mind. Is it the purpose of the amendment to bring about a formal consultation of Scottish Ministers in matters where the United Kingdom Government will deal with our international obligations?

Mr. Hayes: Will my hon. Friend add to that the implications of the amendment for the relationship between Scottish Ministers and the new constitutional arrangements? We spend a great deal of time speaking about the relationship between this place and the new Parliament, but I am interested in what my hon. Friend and the Minister believe the amendment suggests for the relationship between Scottish Ministers and the new Parliament. Does the amendment affect other aspects of the Bill; and can that be explained during this evening's proceedings?

Mr. Swayne: My hon. Friend anticipates me.I intended to ask the Minister for his views. It is inevitable and desirable that the Scottish Executive should be consulted and its views sought and understood. However, this House will rightly continue to contain a large number of Scottish Members of Parliament, who remain in this place to scrutinise Government activities in those spheres. To what extent does consulting the Scottish Executive have implications for their role in this House?

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