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Lord Mackay of Drumadoon: I am grateful to the Minister for giving way. I am not offering any criticism but he has completely misunderstood the purpose of Amendment No. 145. I have no intention of pressing it to a Division today. But I shall have to look carefully at what he has said because the explanation he has given for rejecting the amendment flies in the face of provisions set out in Schedule 4 as it is currently framed and as it is shortly proposed to be amended in terms of a government amendment.

I give the example of student fees. If a Scottish parliament were to enact legislation that it was illegal to charge students from England more in fees than students from Scotland for studying the same course, and if that conflicted with the wishes of the British Government as to the manner in which they funded English students attending universities throughout the United Kingdom--which I understand is one of the reasons lying behind the Government's attitude in recent weeks--is the Minister saying that, as a matter of constitutional theory, it would be impossible for this Parliament to enact legislation which had the legal effect of overruling the Act of the Scottish parliament making it illegal to charge English students more than Scottish students? If the Minister is saying that, I do not understand how that can be consistent with the supremacy of this Parliament, which I do not understand to be infringed in any way by the constitutional settlement which the Government have brought forward, which I fully accept has been overwhelmingly endorsed by the Scottish parliament, and which I accept in putting forward my Amendment No. 145.

It might be helpful if the Minister addressed that practical example. He has clearly misunderstood my amendment. I want to make it quite clear that I do not understand the answer which he has given because the amendment recognises that this Parliament would retain the right to make laws for Scotland which may not be amended or repealed by the Scottish parliament. That does not mean that every Act passed by this Parliament falls into that category or indeed that any Act it might pass in the future fell into that category. All it recognises is the right to entrench certain provisions, which is one of the matters addressed in Schedule 4, and rightly so.

Lord Mackie of Benshie: We, too, completely misunderstood the amendment. If it is being said that it is a drafting amendment, it appears to us to strike at the very root of the Bill.

Lord Sewel: Perhaps I may read out what the effect of the noble and learned Lord's amendment would be. Clause 27(7) would read:

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To me that seems to create what has been described in the phrase used earlier in this Committee: namely, a degree of ambiguity that legislation passed by this House on devolved matters relating to Scotland could not be amended or changed by the Scottish parliament. That is the danger that the noble and learned Lord is getting into.

As regards the general point he made about the ping-pong problem, Clause 27 makes it clear that the devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Indeed, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.

If problems do arise the solution is for the Scottish executive and the United Kingdom Government to resolve the matter through political dialogue. That is what differences between mature parliaments and executives will be concerned with. That is what happens in other political systems. I cannot believe that it is beyond our wit to develop such a convention. That is much more suitable than through the business of legislative ping-pong or tennis. If this Parliament thought the situation had got to a stage of total impasse, it would be possible to look again at the Bill and enact primary legislation affecting the reserved matters. That is the ultimate route. There should be mature political dialogue to resolve a difference, which is better than legislative tennis. If an impasse results there is the ultimate fallback position of looking at Schedule 5 and changing the devolved powers.

Turning to Amendment No. 146, we fully agree with the intention behind the new Section 27(8). It is clearly right to ensure that the courts should, in cases of doubt, tend towards a stricter interpretation of the effect of Acts of the Scottish parliament, thus reducing the scope for practical problems in consequence of the declaration of an apparently valid ASP as ultra vires. But the new subsection is simply unnecessary, as it would duplicate provision already made by Clause 28(8) and (2). Read together, these require that a provision of an Act of the Scottish parliament is to be construed so far as possible as within legislative competence and therefore as being compatible with the incorporated European convention rights.

I refer to the point made by my noble friend Lord Kirkhill, who is in his place. Government Amendment No. 164, to which we shall come later, seeks to adjust the wording of Clause 28(8) to make its meaning absolutely clear. As I said, I accept the point made by the noble and learned Lord that there may well be an opportunity to make absolute consistency in phrasing. We shall discuss that point with the parliamentary draftsman.

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The new subsections, Clause 27(9) and (10), are in fact in a different category. The devolution proposals which the Scottish people endorsed last year were for a parliament able to make primary legislation by providing for Holyrood legislation to be read as being compatible with Westminster legislation or if that were not possible, for the latter to prevail. These new subsections would subvert that policy by rendering the Scottish parliament unable to make distinctive primary legislation except where there was no existing Westminster enactment. I believe that that would be a clear nonsense. In those circumstances I ask the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon: I was interested to hear what the Minister had to say about political dialogue being the way to resolve disputes between the new Scottish institutions, the Westminster Parliament and the United Kingdom Government. That approach will be very welcome when we come to consider in due course the provisions of Clauses 33 and 54.

As I indicated when I intervened as the Minister was replying, I do not intend to divide the Committee on these amendments at this stage. However, I repeat what I said earlier. The way in which the Minister began to respond, particularly to Amendment No. 145, failed to acknowledge what I understand to be an inevitable consequence of the supremacy of parliament, that not only will it be competent to enact legislation relating to devolved matters in the future, but that it may be appropriate in rare cases to make it clear that this further legislation cannot be amended by the Scottish parliament. Perhaps we could develop this argument later when we discuss the ability of the Scottish parliament to amend the provisions of Clause 89.

I listened with interest to what the Minister said about subsections (9) and (10) which Amendment No. 146 seeks to insert. There remains, in my mind at least, some concern about how a court will resolve differences between an Act of this Parliament and an Act of the Scottish parliament dealing with similar issues, but not exactly the same point. I can envisage problems of construction as to the way in which such matters are resolved in relation to convention rights under subsection (8). There should be some scope for seeking to guide the courts as to the way in which this Parliament wishes them to approach the problems on which subsections (9) and (10) focus. Although the noble and learned Lord, Lord Hope, was slightly critical of the drafting of subsection (9), which I seek to add by way of Amendment No. 146, I understood him to support the general principle that it would be preferable to set out on the face of the Bill how the legislation of the new parliament is to be construed.

We have had a useful debate. I suspect that noble Lords on all sides will read with interest what has been said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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7.30 p.m.

Lord Steel of Aikwood moved Amendment No. 144:

Page 14, line 25, at end insert ("in relation to reserved matters").

The noble Lord said: In moving Amendment No. 144, I should like first to point out that Clause 27 as a whole was never discussed in the other place because of the way in which the timetable Motion fell, and it is therefore right that we should pay closer attention to its provisions. Curiously enough, however, it so happens that there was a Division in the other place on an amendment identical to Amendment No. 144, but without any discussion. That strikes me as peculiar, but it was the way in which the timetable Motion fell.

Subsequent clauses which we shall reach--presumably after a welcome break--deal with the correct limits which the Bill seeks to set down on the powers of the Scottish parliament. In other words, a whole series of clauses and schedules defines what the parliament may not do and where it may not trespass on the responsibilities of Westminster.

My amendment seeks, at the end of line 25 on page 14, to set a similar limit on what Westminster may not do within Scotland. It seems peculiar to leave subsection (7) to read:

    "This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland",

without making it clear that in future, once the Scottish parliament comes into being, we do not expect the Westminster Parliament to make laws for Scotland except in those matters which will be set out as "reserved matters" in this Bill. My amendment seeks to set out that boundary more clearly.

As the Minister said, various mechanisms are set out in the Bill to deal with disputes over the rights of the Scottish parliament and of the Westminster Parliament in future. It is inevitable that there will be some such disputes. However, what I do not understand, and the question that I should like to ask the Government, is: if we do not pass my amendment, what is to stop the Westminster Parliament attempting to legislate on precisely the same ground as the Scottish parliament which we are now setting up? I do not want to go into the example of student fees, which is admittedly cross-border and complicated, so perhaps I may take another example at random. Let us suppose that the Scottish parliament took it into its head to decide that, for various good reasons, there should be a tax on caravans in Scotland. That would be within its competence. Are we then saying that the Westminster Parliament could suddenly, a few months later, say, "There shall not be a tax on caravans in Scotland"? That is a recipe for continued ping-pong of a new variety, using Hadrian's Wall as the net. That does not seem to be a sustainable and arguable position.

My final point is that we are dealing here with the theology of sovereignty. This is where I disagree with the noble Lord, Lord Renton. I must remind the Committee that the whole of this legislation is based on the findings of the Scottish Constitutional Convention and that its work was in turn based on the Claim of Right, which sought to assert yet again in Scotland that the people of Scotland are sovereign. That is a

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completely different concept from that of the sovereignty of parliament in England and Wales. Although we cannot create two sovereignties in any devolved structure, nonetheless we want the Bill to reflect as far as possible the spirit of the Claim of Right which made it clear that the Scottish parliament, when it comes into being, should be sovereign in relation to internal matters in Scotland. To leave what I see as a loophole (by which Westminster could at any time override the legislation of the Scottish parliament) is a mistake. I believe that adding the words,

    "in relation to reserved matters",

is the correct solution to this dilemma. I beg to move.

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