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The Deputy Chairman of Committees (Baroness Lockwood): I must point out that if Amendment No. 149 is agreed to, I cannot call Amendment No. 150.
9.30 p.m.
Lord Mackie of Benshie: I rise to speak in the hope that the Minister understands his speech as well as those who wrote it. We do not believe that there is any evil intent. As far as my limited ability goes, I cannot find any evil intent, but I am sure that if there is any, one of the twin Lords Mackay will find it. In the meantime, I should be interested to hear what else is said on this amendment.
Lord Clyde: I regard this clause and these amendments as the most important part of this legislation. I doubt if there is serious dispute about that. It is essential that the limitations on the powers of the Scottish parliament are clearly, precisely and simply expressed. If not, the Scottish parliament will not have the confidence to know what it can and cannot do. Its work will be delayed by repeated attacks on the competence of its work in the courts and elsewhere. That will lead to a sense of frustration and despair which may have disastrous consequences. This particular provision must be drafted with immense simplicity and clarity.
I do not believe that there is any dispute about the end object to be achieved. There are perhaps three possibilities. A measure may be proposed that is
concerned wholly with a devolved matter. There is no problem about that. A measure may be proposed that is concerned wholly with a reserved matter. There is no problem about that. The only other category is a measure that is concerned in part with a reserved matter and in part with a devolved matter. The solution that has been adopted--I do not have any dispute with it--is to determine its primary element. If it is merely a consequential effect of a reserved matter, it is properly within the competence of the Scottish parliament. That is the substance of what is sought to be achieved. I should like to see that expressed as clearly and simply as possible.I was glad that the former three provisions disappeared, in particular subsection (5) which I found utterly impenetrable. As far as I could follow it, it made sense until its penultimate line but the last part of it led me into Alice in Wonderland. I remain unpersuaded that the provisions that are proposed to replace it are wholly satisfactory.
I start with Amendment No. 153. The test that is sought to be introduced under this amendment is purpose. I suggest that that test is too vague. It refers to
- "the purpose of the provision, having regard (among other things) to its effect in all the circumstances".
First, that is too uncertain a standard by which to achieve the required confidence. How does one find the purpose? Where is the limit on the circumstances to which one has regard? Secondly, I suggest that the reference to "purpose" is not in point. My understanding, when first reading the amendment, was that if the Scottish parliament decided to adopt a measure with the purpose of discouraging crime--something that would be within its competence--and then realised that the supply, distribution and possession of certain drugs was an important feature that encouraged crime, it would be entitled to legalise cannabis. Yet that is, of course, interfering with the reserved matter--the Misuse of Drugs Act 1971. But if the test is "purpose", then it is done with the purpose which is within its competence. I am not sure that purpose is the proper test.
Thirdly, I suggest that the proper test is the substance of the subject matter. Indeed, to take the quotation from Gallagher, which the Minister mentioned, it is the pith, substance and nature of the matter to be regarded, not the purpose. Purpose, to my mind, is not the same as the pith and substance. So I am uneasy about the proposed new subsection (3).
When one comes to the next part of the amendment (subsection (3A)) one still has the reference to "purpose", but it brings in the further concept of consistency. I am not persuaded at the moment that it is necessary to embark upon questions of consistency, if one is merely concerned to deal with the cases where a provision may relate both to reserved and devolved matters.
How will that work? Let us suppose that the Scottish parliament proposed to standardise all public holidays throughout Scotland. That presumably would be within its competence. Within the course of that, it would want to fix the date of Easter. That is a reserved matter. But,
provided that it does it consistently--that is to say, it fixes all the public holidays--presumably it can do it. Is that what is intended? Again, let us suppose that it required to make provision for a single tribunal to set proper professional standards. It would not be allowed to do that under the provisions for accountants, doctors and actuaries. But if it made it to apply to all professions in Scotland--teachers and lawyers as well as accountants, doctors, actuaries and dentists--could it do it because it is done consistently throughout the whole sphere? I have an anxiety that that provision will lead to more trouble than benefit.Amendment No. 169 is the other important amendment in this group. Here one finds in subsection 3B the provision dealing with incidental matters where there is an overlap between devolved and reserved matters. I welcome that provision.
I am not so confident about the necessity for subsection 3A. May it not just be obscuring what can otherwise can be put simply and clearly? Subsection 3A(1) provides:
- "The law on reserved matters shall not be modified".
But Schedule 4, paragraph 4 already says that clearly. Then subsection (2) seeks to define "the law on reserved matters". Is that necessary because Clause 28(2)(c), explaining what the competence is, says that the parliament does not have competence in a provision which relates to reserved matters? Of course the reserved matters cover matters of statute and of common law. That seems, as I see it, to be sufficient.
Subsection (3) introduces the matter of specialty, and if that was where it stopped, then it might be useful. But what concerns me is that the rest of that subsection has been plucked out of Schedule 5 and thrust into Schedule 4, and that seems to me to be unfortunate. There is a distinct structure here: Schedule 4 deals with things that cannot be amended; Schedule 5 lists the things which cannot be the subject of legislation by a Scottish parliament. Surely it was better to have the two matters referred to in subsections (3) and (4) in Schedule 5, where they used to be, rather than thrust into the amended Schedule 4.
I touch only on matters of importance. If we are dealing also with Amendment No. 169A, I wish to express two matters of anxiety. The amendment gives the power to restate the law with modifications, and to repeal. It may be necessary to provide for that, but there is a danger. It is difficult to restate the law without changing its meaning. One is dealing here with matters which may be of concern to the United Kingdom Parliament. That provision could involve the reorganising, rewriting or renumbering of sections in Acts of the United Kingdom. That would add to the complexity of a statute book which is sufficiently complex.
I make these observations with a view to being helpful. I am concerned to see whether we can secure a simple, precise and clear solution to a problem which I think everyone agrees exists. I respectfully suggest that much of the material here could be thinned out. I would welcome an indication from the Minister that he would
give further consideration to the successful drafting of this admittedly difficult but critically important provision.
Lord Mackay of Drumadoon: I noted that the Minister did not indicate that he would be happy to take any questions on what he had read out. Having listened to the important issues raised by the noble and learned Lord, Lord Clyde, his reticence is understandable.
We are all agreed that this is an important area of the Bill. I welcome the fact that the Government have, to some extent on their own initiative, taken the opportunity to think again about the terms in which Clause 28 is currently drafted. As I recall, this was not a matter that was discussed at any length, if at all, in another place.
I noted that the Minister stated that it was possible that further amendments would be brought forward at Report stage. If that proves to be the case, it would be extremely helpful if they could be tabled as early as possible and, if possible, a letter setting out in advance the purpose of the amendments would be of assistance. In striving to understand certain of these amendments in preparation for this evening's debate, time and again I came back to the fact that I was unaware what problem the Government had detected in Clause 28 as currently drafted. It is only if one is aware of the problem that the amendment is designed to meet that one can address the secondary, but equally important, question as to whether the problem is met by the proposed amendment.
With the greatest of humility and respect, I agree with every point that the noble and learned Lord, Lord Clyde, raised. I tentatively pose a number of other questions, to which I hope the Minister will respond. While it is entirely a matter for him, I suspect that a considered response sent in writing would be the way forward, and one which, by one means or another, we can read into the debates at Report stage. Clearly when lawyers come to construe the Scotland Act in the years ahead, the speech that the noble Lord, Lord Sewel, made will be one of the most important parts of Hansard to which they will have regard.
As regards Amendment No. 153, I invite the Minister to address what happens if the courts are of the view that the legislation has two purposes and one of them cannot be set aside as being an ancillary purpose, and one of these purposes is within the legislative competence of the Scottish parliament and one is clearly outwith. It may well be that there is a fourth situation in addition to the three which the noble and learned Lord, Lord Clyde, identified earlier. I have some difficulty as to why one should have regard to the provision's effect in seeking to determine what a provision's purpose is. One is almost encouraged to ask: is that not an instance of putting the cart before the horse? Look at what the provision achieves and then work out what its purpose is intended to be--because if the purpose is not achieved, what then?
I should be grateful if the noble Minister could confirm whether the new subsection 3A is intended to replace the existing subsection (3) of Clause 28. If so, I
should welcome his clarification of how the provisions of the new subsection 3A have a different purpose and indeed a different effect from those currently set out in Clause 28(3).The next amendment I shall mention briefly is No. 165, which I welcome, subject to the question of a modification which we will turn to in a later grouping. Moving to Amendments Nos. 167B and 167C, which deal with the relationship between this Bill and the Human Rights Bill, I invite the Minister to address the point of why the reference to Section 12 of the Human Rights Bill is being removed--that is the clause in the Bill which deals with self-expression. More important, I ask why reference is being made to paragraphs 2, 3, 4, 5 and 6 of Schedule 2 of the Human Rights Bill, which, as the Minister is no doubt aware, deal with certain provisions for the making of remedial orders. I do not understand why they have any relevance to the making of primary legislation by the Scottish parliament.
Of all the amendments to which the noble and learned Lord spoke, Amendment No. 169 is the one that I found the most difficult to understand. I agree with what the noble and learned Lord, Lord Clyde, said, that a serious question arises as to whether the proposed subsection 3A is necessary. But, if it is, I reinforce the point that has been made; namely, that it is desirable that this matter should be expressed as simply as possible. I fully accept that one can sometimes err on the side of simplicity and end up achieving a result which is not what parliament intended. On the other hand, members of the public, and indeed members of the parliament, in the first few years will have regular recourse to the provisions of the Act to see what their legislative powers are. If they experience as much difficulty in understanding the provisions incorporated in Amendment No. 169 as I do, and as the noble and learned Lord, Lord Clyde, also seems to do, it can be anticipated that problems may lie ahead.
Finally, I turn to Amendment No. 169A, which deals with the question, among other things, of the restatement of the law by means of consolidation Bills. I would like the Minister to assure the Committee that the amendment is framed in terms which the Scottish Law Commission and the Law Commission in England are satisfied would enable the consolidation of legislation to proceed as it does at present. In other words, in addition to merely restating the law, will they be allowed to take account of amendments to the law, supported by Law Commission recommendations and in other technical respects, in which the absolute rule against making new law in consolidation is to some extent modified, subject as it is in this Parliament to a Joint Committee chaired by one of the Lords Appeal in Ordinary?
In the early years of the Parliament, it will be most important for the law to be consolidated as quickly and effectively as resources permit. When one parliament is amending law which was made by this Parliament, it will be even more difficult for members of the public to discover what the statute law currently is. Consolidation is one way of addressing that issue. We wish to be sure that nothing in either Clause 28 or Schedule 4 should prevent such a process taking place.
As I said at the outset, I welcome the amendment. I cannot begin to suggest that I fully took on board everything the Minister said. He set some difficult homework for the Summer Recess; homework in respect of which I suspect I might seek assistance from others. I anticipate that we shall return to the matter on Report, I hope in a thoroughly constructive manner.
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