Eighth Standing Committee on Delegated Legislation
Wednesday 19 July 2000
[Mr. Eric Illsley in the Chair]
Draft Scotland Act 1998
The Minister of State, Scotland Office (Mr. Brian Wilson): I beg to move,
That the Committee has considered the draft Scotland Act 1998 (Consequential Modifications) Order 2000.
I welcome you to the Chair, Mr. Illsley. The draft order is made under section 105 of the Scotland Act 1998. As some of us are already too well aware, it is the third order of its kind: two extensive orders were made under that power last year, ahead of devolution. Section 105 enables existing enactments or instruments to be amended as necessary in consequence of the Scotland Act. Given the wide implications of devolution, it was impractical to make provision at the time for every modification of every enactment necessary as a result of that Act. Section 105 enables further modifications to be made as the need arises.
The draft order deals with all the examples identified over the past year in which a consequential modification is necessary. In some cases, it has simply been a matter of realising that a power that may have to be exercised at some point in the future has not been adapted to work properly when devolved to Scottish Ministers. In one or two cases, the need to exercise a power has been identified and the provisions under the order are intended to enable devolved powers to be exercised or exercised more effectively.
Mr. Michael Fabricant (Lichfield): Will the Minister give way?
Mr. Wilson: Not at this juncture.
There are also examples where the purpose is to include statutory bodies set up by Acts of the Scottish Parliament within the effects of United Kingdom legislation, for example, on disability discrimination. I may as well give way now to the hon. Gentlemanit will save trouble later on.
Mr. Fabricant: The Minister is perceptive. Does the fact that modifications are needed demonstrate that the original legislation was drafted hastily and incorrectly?
Mr. Wilson: That is obviously a matter for the Committee to judge, but on the basis of what I have said so far, it would be unreasonable to adduce that conclusion. Everyone recognises that devolution legislation was an extremely major and complex constitutional change and the idea that there would be no tidying up afterwards belongs in the world of fantasy, which doubtless is why the hon. Gentleman raises the matter.
Mr. Alasdair Morgan (Galloway and Upper Nithsdale): Presumably, another explanation is that the legislation was scrutinised inadequately by the Opposition during the passage of the Bill.
Mr. Wilson: The hon. Gentleman makes an excellent point. I wish that I had thought of it.
Several entries relate to the procedure in the Scottish Parliament for devolved secondary legislation subject to the affirmative resolution procedure, especially when the statute requires approval to be obtained within a certain number of days. As matters stand, before the draft order is passed, mainly as a result of different terminology between the Scottish Parliament and Westminster, there are cases when the period allowed for parliamentary scrutiny continues during the parliamentary recess. That means that an order can fall because the Scottish Parliament has not been sitting to pass the required affirmative resolutions. The draft order puts the Scottish parliamentary procedure on a similar basis to that obtaining here, in that the clock marking the period within which affirmative resolutions are required will stop ticking in the recessquite poetic, do hon. Members not think?
Another entry relating to subordinate legislation procedure is that for the Human Rights Act 1998, section 10 of which provides for Ministers to make remedial orders where statutory provisions are found to be incompatible with the European convention on human rights. It will be possible for such orders to be made in relation to devolved matters by Scottish Ministers. Schedule 2 of the Human Rights Act regulates the parliamentary procedure for those orders. The procedure is more complex than the usual statutory instrument procedure, and section 118 of the Scotland Act 1998 does not do all that is necessary to translate the parliamentary procedure for those orders so that it operates correctly in the Scottish Parliament. A similar procedure for deregulation orders in the Deregulation and Contracting Out Act 1994 was amended by an earlier order under section 105.
Another group of entries in the draft order extends references to the term ``enactment'', so that they include references to Acts of the Scottish Parliament, where necessary. The general rule is that references to ``enactment'' in Acts of the United Kingdom Parliament do not include Acts, or instruments made under Acts, of the Scottish Parliament. However, it is sometimes desirable for references to ``enactment'' to include Acts of the Scottish Parliament, so that the UK Parliament's Act operates properly. Amendments of that type have been made to the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Requirements of Writing (Scotland) Act 1995.
I do not intend to go into the detail of each entry in the draft order, as there are 23 paragraphs in the schedule. However, if hon. Members have questions on any entry, I shall be happy to assist. I hope that hon. Members will have no difficulty in supporting the order, which is aimed solely at the effective operation in Scotland of pre-existing UK Parliament legislation following devolution. I can assure hon. Members that the order contains no hidden traps or matters of substance disguised as mere tidying-up; it is exactly as it appears. However, as always, I expect the Committee's scrutiny to test that assertion.
Mr. Dominic Grieve (Beaconsfield): I hope not to take up too much of the Committee's time. When contemplating at the outset the brevity of article 3:
Nothing in this Order prejudices the general operation of the modifications in sections 117 to 122 of the Scotland Act 1998
I was minded to point out gently to the Minister the contents of the explanatory note, which are worth reading in their entirety. The note states:
Article 3 contains a saving provision which ensures that, in interpreting enactments which have not been textually amended because reliance is placed on the general modifications in the Act no adverse implication can be drawn because of the presence in the Schedule of textual amendments to some enactments which replicate the effect of the general modifications.
The quality of explanatory notes continues to be a cause of concern to this and doubtless many other Committees. As those notes come from the Scotland Office, will the Minister in future provide notes along the lines of those provided by the Scottish Parliament, which enabled members of the Committee to understand in brief what the article is about? I do not find the above explanatory note helpful.
Most matters in the body of the text seem completely innocuous, and I trust the Minister's judgment on such matters, which may be an unusual thing for an Opposition Member to say. Having considered the order, I can see no reason why the Committee should not pass it.
I seek further clarification only on the scope of paragraph 21, relating to the Human Rights Act 1998. Will that paragraph give Ministers of the Scottish Executive powers similar to those held by Ministers in the UK Government in relation to primary as opposed to secondary legislation? If a Scottish court or, ultimately, the House of Lords decides that a piece of legislation offends the Human Rights Act 1998, will the Scottish Parliament and a Minister, through that Parliament, be allowed to enact a similar short debate and pass an order to quash the offending section? I assume that that is the intention, but the text is difficult to follow with complete accuracy. I should be grateful if the Minister clarified that we are referring to that rather than to a power for secondary legislation.
Sir Robert Smith (West Aberdeenshire and Kincardine): As so often in encounters with the Minister, I echo the need for better explanatory notes. The issue has not been debated in the Scottish Parliament, so we cannot look there for further guidance, but it was raised in another place earlier this week and the same point about explanatory notes was made there. The Minister assures us that there are no hidden elephant traps and that other legislation will not be subject to dangerous amendments. If the explanatory notes had provided more information, hon. Members would have had time to establish for themselves whether the Minister's intentions were genuinely only to tidy up.
I was less shocked than the other Opposition spokesman, the hon. Member for Beaconsfield (Mr. Grieve), to hear that the Minister asked the House of Commons Library whether anything controversial could be hidden in the proposals. I thank the Library for its scrutiny. So far, nothing controversial can be spotted but, as they say, you never know. I, too, want to highlight human rights legislation and would be grateful for further guidance.
Devolution is an evolving process and tidying-up will be necessary. The lack or otherwise of scrutiny of the original Scotland Act will not stop various problems coming to light from time to time. With hindsight, it would have been better if the non-controversial aspects of the Scotland Act had been debated in Committee and the controversial aspects on the Floor of the House, as that would have provided better scrutiny of the more complicated bits.
Will the Minister give an assurance that after the recessor perhaps after the Queen's Speech, to provide even more timea new style of explanatory notes will be forthcoming? That would be most welcome. For now, we have to take it on trust that he and the Library have done their work carefully and that nothing too dangerous or controversial is contained in the order.