Third Standing Committee on Delegated Legislation
Wednesday 15 March 2000
[Mr. Barry Jones in the Chair]
Draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) Order 2000
The Minister for the Arts (Mr. Alan Howarth): I beg to move,
That the Committee has considered the draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) Order 2000.
Before I describe the order, I should like to put it into context. The 1997 White Paper, ``Scotland's Parliament'', recognised that, when United Kingdom or Great Britain public bodies are established on a statutory basis and have a remit that includes responsibility for devolved matters in Scotland, the Scottish Executive would have a right to be consulted on their membership, on any changes to terms of reference and on the exercise of any functions in respect of such bodies. Sections 88 and 89 of the Scotland Act 1998 and the Orders in Council under those sections give effect to that commitment.
Section 88 provides the mechanism to designate public bodies as cross-border public authorities. The Scotland Act 1998 (Cross-Border Public Authorities) (Specification) Order 1999 designates 65 public bodies as cross-border public authorities, including the three public bodies in the order that we are now discussing. They are the British Library, the National Heritage Memorial Fund and the Theatres Trust and their responsibilities extend throughout the United Kingdom. Because of that, certain general provisions of the Scotland Act 1998, in particular the provisions concerning the transfer of ministerial functions to Scotland, would be inappropriate if applied to such public bodies. Their designation as cross-border public authorities under section 88 of the Scotland Act is designed to address those problems.
Usually, section 88 requires that Scottish Ministers are consulted before an appointment is made to made to a cross-border public authority. However, section 89 allows the requirement of section 88 to be adjusted in particular cases by an order such as the one before us. That is the purpose of the order in relation to the appointment and, in certain cases, the removal of members of the British Library Board, trustees of the Theatres Trust and trustees of the National Heritage Memorial Fund. For those authorities, United Kingdom and Scottish Ministers have agreed that it is not necessary to consult on the appointment or removal of every trustee or member.
The order ensures that Scottish interests are properly represented and that appointment issues are dealt with in the most efficient and practical manner to avoid unnecessary bureaucracy or delay. The draft order cannot be recommended to Her Majesty until it has been approved by a resolution of each House of Parliament and by a resolution of the Scottish Parliament.
The provision made in the order for each cross-border public authority is tailored to that authority and, in effect, it re-establishes the pre-devolution position on appointment issues, which was a mixture of statutory and voluntary arrangements. The order is also in line with separate discussions that the Department for Culture, Media and Sport and the Scottish Executive have had on an agreed concordat covering consultation arrangements on all appointments of interest to the Scottish Executive.
For the British Library and the Theatres Trust, appointments are made by my right hon. Friend the Secretary of State for Culture, Media and Sport. Scottish Ministers will be consulted on one member of the British Library Board and one member of the Theatres Trust who, in the view of my right hon. Friend, appears to have special knowledge of Scotland. The British Library is the national library of the United Kingdom and the foremost centre for reference, study and bibliographical and other information services for both science and the humanities.
The Theatres Trust's UK remit is
to promote the better protection of theatres for the benefit of the nation.
Local authorities are required to consult the trust on planning applications affecting land on which a theatre is located. It also provides advice on theatre buildings to grant-awarding bodies, including lottery bodies. I am confident that Scottish interests will be fully represented in the work of both bodies throughout the United Kingdom.
Appointments to the National Heritage Memorial Fund are made by my right hon. Friend the Prime Minister on advice from my right hon. Friend the Secretary of State for Culture, Media and Sport. The National Heritage Memorial Fund is a fund of last resort that has the powers to provide financial assistance towards the acquisition, maintenance and preservation of buildings, land, works of art and other objects or structures of importance to the national heritage. The National Heritage Memorial Fund also administers the heritage lottery fund, which distributes money generated by the national lottery. Both the National Heritage Memorial Fund and the heritage lottery fund have a UK-wide remit.
Consultation by my right hon. Friend the Prime Minister will take place on the appointment of the chairman and on however many persons with Scottish connections, ``by residence or otherwise'', are to be trustees at any one time. Under section 1 of the National Heritage Act 1980, consultation on the appointment of the chairman is required to take place with what are now the devolved Administrations. In addition, my right hon. Friend the Prime Minister is required to consult Scottish Ministers on the termination on grounds of misconduct of the appointment of the chairman and any trustees with Scottish connections. Again, I am confident that Scottish interests will be fully represented in the work of the National Heritage Memorial Fund and the heritage lottery fund throughout the United Kingdom.
Dr. Norman A. Godman (Greenock and Inverclyde): If I heard my hon. Friend correctly, he said that the order will ensure that the three bodies reflect Scottish interests, and that Scotland will be fully represented. Presumably, if the Transport Bill is enacted, a similar order will be made to provide for Scottish representation on the Strategic Rail Authority. The SRA does not cover Northern Ireland, but it will, presumably, contain a Scottish representative. Can we therefore expect a similar order once the Transport Bill has been passed?
Mr. Howarth: My hon. Friend's question goes way outside my departmental responsibilities. I must apologise, but I do not know the answer. However, I shall ask my right hon. Friend the Secretary of State for the Environment, Transport and the Regions to ensure that my hon. Friend receives a reply to his question, which is, I recognise, important.
In dealing with all three bodies specified in the order my right hon. Friend the Secretary of State for Culture, Media and Sport will consult Scottish Ministers and keep them informed of developments in making appointments, offering the opportunity for comment and inviting nominations of possible candidates.
The order makes sensible provision to ensure that the specified cross-border public authorities can continue to operate with an appropriate input and control for each House of Parliament and the Scottish Parliament. The pre-devolution arrangements worked well, and UK and Scottish Ministers are happy to have them re-established as specified in the order.
I can confirm that in our opinion the order complies with the European convention on human rights, and I commend it to the Committee.
Mr. Dominic Grieve (Beaconsfield): It is a pleasure to serve on the Committee, and it is a particular pleasure to reply to the Minister. He asked me just before the Committee started whether the arrival of all his colleagues placed me in awe, but the prospect of standing before you, Mr. Jones, and answering a Minister who taught me English at school is much more daunting.
I remember spending some time with the Minister reading an extremely dense 17th century piece of literature—perhaps one could describe it as poetry—called ``Samson Agonistes''. It came to mind as I considered the order, because it is rather dense. I have read the order, re-read it, examined the explanatory note and listened carefully to the Minister, but one or two minor matters still require elucidation.
The Minister rightly said that cross-border authorities would normally be dealt with under section 88 of the Scotland Act 1998, which is helpfully mentioned in the last paragraph of the explanatory note. Section 88 makes it clear that consultation is to take place in relation to ``any appointment or removal'' of any person to or from the ``cross-border public authority''. The Minister has made the sensible case that that must be adapted to circumstances. When one is not dealing with what might be described as pure cross-border authorities, such as the Esk and Tweed fisheries, the input may properly be limited to specific individuals who will represent Scottish interests. As I am my party's spokesman for Scotland, it is my job to ensure that Scottish interests are properly represented.
With that in mind, I was struck by the fact that the level of consultation envisaged in the order is well below that expected in section 88 of the Scotland Act 1998, even in respect of those who will represent Scottish interests. The Minister will correct me if I have misunderstood. Section 88 states that the consultation will extend
to any appointment or removal of . . . any members.
Let us carefully re-read the convoluted explanatory note, which states:
In relation to the British Library Board . . . a person . . . shall be appointed only after consultation with the Scottish Ministers.
There is nothing in the note or the order about consultation over the removal of that person. Is that because that person cannot be removed once appointed, or because the Government, for some reason about which they have not enlightened us, consider that the problem would not arise when removing that person and could be dealt with by Ministers in London without consulting the Scottish Ministers?
Unless I have misunderstood article 3 despite reading it carefully, it does exactly the same thing on the Theatres Trust. There will be consultation on appointment, but not removal. There may be an explanation, and I confess that I have not had time to examine the Theatres Trust Act 1976. Assuming that there can be removal on several grounds, I am puzzled as to why there is no mechanism for consultation about a person's removal, given that consultation would have taken place before his appointment.
The game was given away in the explanatory note by the fact that the matter is different in relation to the National Heritage Act 1980. The note states that people will be
appointed by the Prime Minister,
but, before termination on grounds of a person's misconduct,
the Prime Minister shall consult the Scottish Ministers.
What if the termination is not on such grounds? Are we to assume that no consultation need take place? If not, why not?