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Lord Hope of Craighead: I speak briefly in support of the points made by the noble and learned Lords, Lord Clyde and Lord Mackay of Drumadoon. Clearly, the amendments will need to be studied with great care in the light of the points which have been made. I speak only to make two brief suggestions. The first relates to Amendment No. 153, which deals in the new subsection (3) with the purposes of the provision. These days, the courts are well used to interpreting statutes by references to the purpose of the statute. There is sometimes a debate as to whether the purposive approach is the right one to adopt. Sometimes the courts prefer to adopt a literal approach. Plainly, the intention is that the purposive approach should be adopted. It might be enough simply to stop at that point and delete the words from "having regard to" to the end of the subsection. It introduces material which simply complicates a fairly straightforward provision.

The second point relates to Amendment No. 169A. I do not wish to trivialise the debate, but it seems to me, looking at paragraph 13, that the idea of an Act changing the name of a judge is a little strange. I believe that the aim is the possibility of changing the name of the office held by a judge. It might be happier to insert the words,

in order to make that position clear.

The Earl of Balfour: I would like to raise a question on Amendments Nos. 166A and 291B. Amendment No. 166A provides that the Private Legislation Procedure (Scotland) Act shall not be modified. I am thinking of the position in which on so many occasions I have been a Parliamentary Commissioner dealing with opposed private legislation. With that in mind, I believe that the matter can satisfactorily be devolved to the Scottish parliament. However, Clause 88, which is set out under the heading of "Private legislation", deals with pre-commencement enactments. I am somewhat mystified as to whether Amendment No. 166A does not to some extent contradict the provisions in Clause 88.

Moreover, I also wonder why subsection (3) of Clause 88 says:

    "Section 49 shall not apply in relation to the Private Legislation Procedure (Scotland) Act 1936",

because Clause 49 deals with the general transfer of functions to Scottish Ministers. I should have thought that that was an entirely different subject, but quite an important point.

Baroness Carnegy of Lour: On the same amendment--namely, Amendment No. 166A--can the Minister say why the provision is not being changed? My recollection from experience is that the final stages

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of opposed Private Bills go to a committee of both Houses at Westminster. Indeed, that involves the House of Lords. I have chaired such a joint committee, and I do not believe that the situation has changed. Are the Government maintaining the House of Lords in this piece of legislative procedure, but not in any other?

Lord Sewel: I believe that we have had a thoughtful, valuable and most helpful series of contributions to this debate from noble Lords and noble and learned Lords. We are all agreed that this is one of the most important parts of the Bill and that it does indeed deserve full and proper scrutiny.

Clearly, as the Minister responsible for the Bill, I am aware that whatever comments I make on this occasion have to be considered both deliberate and weighed. Therefore, I shall not reply at this stage to many of the points made by noble Lords and noble and learned Lords. However, because of the importance of this particular part of the Bill, I make the offer to have discussions with Members of the Committee who feel that we can make further improvements to these clauses. As I say, I shall take those points away while making that offer of discussion.

However, I can deal with the point on private legislation raised by the noble Earl, Lord Balfour, and the noble Baroness, Lady Carnegy. Amendments Nos. 166A and 291A bring the treatment of the Private Legislation Procedure (Scotland) Act 1936 into line with that of other enactments, which are to be protected from modification by the Scottish parliament, by adding a provision to that effect in Schedule 4 and deleting Clause 88(3), which will become redundant. Following devolution, it is intended that the Scottish parliament will be able to make its own provision in relation to private legislation as far as relates to devolved matters. By virtue of these amendments, the parliament will not be able to modify the 1936 Act and ministerial functions will not transfer to the Scottish Ministers. Private legislation under the 1936 Act will continue to be a matter for Westminster and UK Ministers, but it is expected that a convention will develop that they will normally deal with devolved matters only with the consent of the Scottish parliament. I think that is the kind of approach that we have tried consistently to adopt when these kind of issues arise.

I repeat what I have already said. Although these are technical amendments, they are incredibly important technical amendments which seek to place in legislation, and to define legislatively, what I think we all recognise is an incredibly difficult provision. Because of that importance I am happy to take further in discussion the concerns of noble Lords and noble and learned Lords. I think the Committee will realise that at this stage I have to refrain from saying anything further of substance.

On Question, amendment agreed to.

[Amendment No. 150 not moved.]

10 p.m.

Lord Sewel moved Amendment No. 151:

Page 14, line 34, at end insert--
("(cc) it is in breach of the restrictions in Schedule 4").

On Question, amendment agreed to.

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[Amendment No. 152 not moved.]

The Chairman of Committees (Lord Boston of Faversham): I must point out to the Committee that if Amendment No. 153 is agreed to, I cannot call Amendments Nos. 154 to 158 inclusive.

Lord Sewel moved Amendment No. 153:

Page 14, line 40, leave out subsections (3) to (5) and insert--
("(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (3A), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
(3A) A provision which--
(a) would otherwise not relate to reserved matters, but
(b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,
is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.").

On Question, amendment agreed to.

[Amendments Nos. 154 to 159 not moved.]

Lord Sewel moved Amendments Nos. 160 and 161:

Page 15, line 10, leave out ("that competence") and insert ("the legislative competence of the Parliament").
Page 15, line 14, leave out subsection (7).

On Question, amendments agreed to.

Lord Mackay of Drumadoon: I hope I shall be allowed to move Amendment No. 162--

The Chairman of Committees: I beg the Committee's pardon. I should have given the warning on Amendment No. 161 that if that amendment was agreed to, I could not call Amendments Nos. 162 or 163.

[Amendments Nos. 162 and 163 not moved.]

The Chairman of Committees: I must point out to the Committee that if Amendment No. 165 is agreed to, I cannot call Amendment No. 166.

Lord Sewel moved Amendments Nos. 164 and 165:

Page 15, line 18, leave out ("so") and insert ("in such a way").
Page 15, line 20, leave out subsection (9).

On Question, amendments agreed to.

[Amendment No. 166 not moved.]

On Question, Whether Clause 28, as amended, shall stand part of the Bill?

Lord Mackay of Drumadoon: I wish to raise a point which I had hoped to raise in the group of amendments which is disappearing off the dyke like snow in the month of June. I think I have one chance left to raise this point, but in case I lose that chance I shall raise the point now. Why in this Bill have the draftsmen introduced the term "modification of the law"? As far as my researches have indicated--I fully confess they are not as extensive as they might have been--that is not a term currently used in public general statutes when

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one is talking about legislation which repeals or amends existing legislation. Nor is it found in judicial authorities in so far as I have researched that, and nor--very importantly--is it found in legal textbooks dealing with statutory construction. If this new term is to be introduced, I believe we are entitled to an explanation of that. That is my purpose in speaking at this point.

Baroness Ramsay of Cartvale: I shall try to give an answer as so many of these amendments were overtaken by events and I think we have all been caught slightly by surprise. The term "modify" has been used quite deliberately in this Bill so that, in the case of enactments, the various restrictions on the competence of the Scottish parliament to modify aspects of the law apply to any change to the effect of an enactment, for example, by a gloss placed on its interpretation by another enactment, not just those modifications which involve textual amendments. It is therefore felt that narrowing these provisions to apply only to textual amendments--which is the effect that we believe the use of the word "amendment" and not "modify" would produce--would subvert their purpose. I do not know whether that provides the noble and learned Lord with an adequate reply, but that is why the word "modify" is used. We believe that it is preferable to the word "amend" or "amendment".

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