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Lord Mackay of Drumadoon moved Amendment No. 136:

Page 11, line 33, at end insert--
("( ) The power in subsection (1) is not exercisable in relation to a Minister of the Crown").

The noble and learned Lord said: For the sake of making progress, this amendment is linked with Amendment No. 137. It raises a very short but important point as to whether in any circumstances the Scottish parliament, or one of its committees, should have the power to require a Minister of the Crown to attend upon the parliament's proceedings for the purposes of giving evidence or producing documents in his custody or under his control.

It is obvious from the clause as drafted that the right to summon Ministers of the Crown to appear before the parliament or to produce documents is not an unqualified power. It is restricted by the provisions of subsection (4). Nevertheless, it is there and so in certain circumstances it could be used. I believe it would not be appropriate for the Scottish parliament to have such a power. No doubt from time to time the parliament or one of its committees may feel that its deliberations would be assisted if Ministers of the Crown were to attend and be willing to answer questions. That would apply not only in respect of those Ministers whom it has power to require to attend, but it would also apply to other Ministers whose attendance would be precluded as a matter of requirement by the way subsection (4) is framed.

The willing attendance of Ministers of the Crown to assist the parliament is a very different matter from their being required to attend in a situation where they do not wish to do so. I believe that the existence of the power and its use would be very unhelpful towards maintaining good relations between the United Kingdom Government on the one hand and the Scottish parliament and the Scottish executive on the other hand.

Obviously, this parliament can require Ministers of the Crown to attend and, if they are required to do so, to turn up at a suitably convenient time--sometimes somewhat prompter than might be the case if it were a matter of their own choosing. However, so far as the courts of the land are concerned there can be little doubt that if a party wishes a Member of Parliament or a Minister of the Crown to attend they do not have the right to summon them before the court in the way that they can summon other members of the public.

That is the situation that I believe should apply in the Scottish parliament. By all means invite them to attend and also make it clear why you wish them to attend, but do not insist on having in this clause an absolute right to do so because, far from fostering good relations, it

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could well lead to unnecessary tension between the Executive of the United Kingdom Government and the new institutions being set up in Scotland. I beg to move.

Lord Fraser of Carmyllie: This matter relates primarily to the situation of a Minister of the Crown, and particular provision is made for someone who remains a Minister of the Crown. The issue which seems to me still to require clarification is that of someone who has been a Minister of the Crown and has dealt with matters covered by this clause but where that person is no longer a Minister but a Member of the House of Commons. In such circumstances, am I to understand that for the purposes of hearing evidence the Scottish parliament could not require that individual to attend but would be able to require him to attend so long as he remained a Minister of the Crown? If I have understood that position correctly, it does seem to me to be a rather curious anomaly. Clearly the House of Commons must be taken as being on notice that one of its Members might be required to attend. They have already dealt with this provision. Given the change of Ministers that there may be, perhaps as soon as the end of this week, those no longer in office might have evidence which a Scottish parliament considered appropriate for its deliberations. I should be grateful if the Minister would clarify that matter.

Baroness Carnegy of Lour: I support the amendment. I believe that enabling the Scottish parliament to ask United Kingdom Ministers, who are answerable to the electorate through a different set of elected representatives, to submit to questions, whether on small or large issues, merely because their responsibilities overlap in affecting devolved matters is asking for trouble and confrontation. This Parliament and the Government have an enormous responsibility to reduce the areas which invite confrontation, provided that the parliament works as is intended.

I see from the notes on clauses that Ministers of the Crown include Treasury Ministers. One can imagine a Chancellor of the Exchequer of a Conservative government being summoned before the Scottish parliament, which is perhaps Labour or SNP dominated, to be questioned about why the grant from Westminster is so small and results in Scottish income tax being raised by 3p. in the pound. According to my reading of the Bill, that could happen. Could the Prime Minister be summoned to be questioned about the Government's policies, vis-a-vis the policies of the Scottish parliament and how they conflict?

On reading the Bill, it appears that the policies which have evolved from the thinking of the civil servants in the Scottish Office have not been adequately tested for their political effect by the Government or by the House of Commons. I can understand people's belief before the Bill came to Parliament that this part would work well. But the political effect is likely to be fairly catastrophic for the good working of the Scottish

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parliament and Westminster together. I believe that the Government should consider the amendment because it is very important.

Baroness Linklater of Butterstone: We do not follow the argument that the provision in the Bill will create further tension or difficulties. If a Minister of the Crown outside Scotland has functions or responsibilities relating to devolved matters concerning Scotland, the Scottish parliament should have the power to require him to attend. It is a simple question of accountability. There is no reason why anyone--particularly someone of importance as regards Scottish matters--should not be accountable. We believe that the Bill is rightly specific on that and we oppose the amendment.

Baroness Carnegy of Lour: Does the noble Baroness consider that the Chancellor of the Exchequer is accountable to the people of Scotland through their elected members to the Scottish parliament or to the Westminster Parliament? How can she use that argument?

Lord Mackie of Benshie: The noble Baroness has made her point. I do not wish to offend the dignity of the Chancellor of the Exchequer or anyone else, but I point out that when a Minister does not want to answer questions the answers are most vital and necessary.

6.15 p.m.

The Lord Advocate (Lord Hardie): The amendments raise the issue of the circumstances in which a Minister of the Crown may be summoned before parliament. As I explained earlier, under the Bill as drafted, those who are responsible only for reserved matters cannot be summoned in connection with those matters, although they can of course be invited to attend and to submit documents. The noble and learned Lord, Lord Mackay of Drumadoon, thought that that was appropriate if they wished to attend in response to an invitation. For UK Ministers and civil servants, we have in particular had to be careful to avoid what might be described as "double accountability". We absolutely accept that Ministers of the Crown exercising functions in reserved areas will be using resources voted by the United Kingdom Parliament and should be accountable to it, and to it alone, and not to the Scottish parliament.

We have also ensured that where it is provided in, say, an executive devolution order under Clause 59 that the Scottish Ministers must be consulted or their agreement sought about the exercise of a function by a UK Minister which concerns a reserved matter, that in itself provides no basis for summoning UK Ministers and their civil servants before the Scottish parliament. Similarly, they will not be summonable in relation to a function which they share with Scottish Ministers by virtue of Clauses 52, 53 or 59. For those functions they will be rightly accountable to Westminster.

Bearing in mind the principles underlying these provisions, I have to say that the amendments tabled by the noble and learned Lord go further in restricting the power of summons in relation to Ministers of the Crown

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than we think is justified. They would prevent the parliament from being able to call Ministers of the Crown to give evidence to the Scottish parliament in any circumstances. In particular, they would prevent a Minister of the Crown from being summoned where he exercises a function in relation to devolved matters concerning Scotland instead of the Scottish Ministers. In reply to the point raised by the noble Baroness, Lady Carnegy, that would apply to the Chancellor of the Exchequer.

There will continue to be what are known as "cross border public authorities". These bodies will have responsibilities for devolved matters in Scotland as well as matters elsewhere. Examples include the British Tourist Authority. Appropriate arrangements for their control and accountability will be made under Clauses 83 and 84. In some cases concerning those bodies, it will be appropriate for ministerial functions in relation to devolved matters concerning Scotland to be exercisable by UK Ministers. For example, it may not make practical sense for a ministerial power of direction, say of the form of accounts, to be split between the Scottish and UK Ministers. Rather, it might be more appropriately exercised by a UK Minister after consultation with the Scottish Ministers. In that case, it makes perfect sense for the Scottish parliament to be able to summon UK Ministers.

Another example of circumstances where it would be appropriate for a UK Minister to be subject to summons would be where he exercises a function in relation to a devolved matter in Scotland instead of a Scottish Minister by virtue of an Order in Council under Clause 98. For example, it could be administratively more convenient for a UK department to conduct certain statistical surveys for the whole of the UK. In that situation, it would be appropriate that the UK Minister ought to be capable of being summoned to the Scottish parliament.

If the amendments proposed by the noble and learned Lord were to be accepted, the parliament would not be able to fulfil properly its role in holding Ministers to account for their functions in relation to devolved matters. I hope the noble and learned Lord will agree that that would be an undesirable outcome.

Finally, I should perhaps mention that the matter was raised in another place. The Opposition Front Bench spokesman, Mr. Jenkin, welcomed government amendments to Clause 23 precisely in order to clarify the issue we are now discussing. Mr. Jenkin offered the view that the Government had "responsibly addressed" the issue of double accountability, which he explained had prompted the Opposition to put down in that place amendments similar to those we are now considering. There appears to be a change of heart on the part of the Opposition.

I hope that with that explanation, the noble and learned Lord will withdraw his amendment.

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