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Lord Mackay of Drumadoon: I am grateful to the noble Baroness for giving me that answer at an unexpected point in tonight's debate. I shall reflect on her remarks. I suspect that I may wish to write to the Minister on this matter, as it is of some significance. We are introducing a new term and we must be clear as to its meaning. On that basis, I withdraw my opposition to Clause 28.

Clause 28, as amended, agreed to.

Schedule 4 [Enactments protected from modification]:

The Chairman of Committees: I must point out that if Amendment No. 169A is agreed to, I cannot call Amendments Nos. 170 and 171.

Lord Sewel moved Amendments Nos. 166A to 169A

Page 62, line 10, at end insert--
("Private Legislation Procedure (Scotland) Act 1936
. The Private Legislation Procedure (Scotland) Act 1936 shall not be modified.").
Page 62, line 20, leave out ("28(2)(b)") and insert ("28(2)(cc)").
Page 62, line 22, at end insert--
("Local Government, Planning and Land Act 1980
. Paragraphs 5(3)(b) and 15(4)(b) of Schedule 32 to the Local Government, Planning and Land Act 1980 shall not be modified.").
Page 62, line 25, leave out ("sections 12 and 20 of") and insert ("section 20 of, and paragraphs 2 to 6 of Schedule 2 to,").
Page 62, line 26, leave out ("those sections") and insert ("that section or those paragraphs").
Page 62, line 28, leave out ("28(2)(b)") and insert ("28(2)(cc)").
Page 62, line 33, leave out ("and 14 to 17") and insert (", 14 to 17 and 22").

21 Jul 1998 : Column 831

Page 62, line 33, at end insert--
("Law on reserved matters

3A.--(1) The law on reserved matters shall not be modified.
(2) In this paragraph, "the law on reserved matters" means--
(a) any enactment the subject-matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and
(b) any rule of law which is not contained in an enactment and the subject-matter of which is a reserved matter.
(3) Sub-paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter or the subject-matter of the rule is--
(a) interest on sums due in respect of taxes or excise duties and refunds of such taxes or duties, or
(b) the obligations, in relation to occupational or personal pension schemes, of the trustees or managers.
(4) Sub-paragraph (3)(b) extends to cases where liabilities under orders made in matrimonial proceedings, or agreements made between the parties to a marriage, are to be satisfied out of assets of the scheme.
(5) Sub-paragraph (1), read with section 28(2)(cc), is to be disregarded for the purpose of determining whether the exercise of any function (other than a function of making, confirming or approving subordinate legislation so far as it makes modifications to which that sub-paragraph applies) is within or outside devolved competence.
(6) In this paragraph "enactment" includes an enactment whenever passed or made.
3B.--(1) Paragraph 3A does not prevent an Act of the Scottish Parliament making modifications which--
(a) are incidental to, or consequential on, provision made (whether by the Act in question or another enactment) which does not relate to reserved matters, and
(b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision.
(2) In determining for the purposes of sub-paragraph (1)(b) what is necessary to give effect to the purpose of a provision, any power to make laws other than the power of the Parliament is to be disregarded.").
Page 62, line 37, at end insert ("and paragraph 4(1) and (2) of Schedule 2").
Page 63, line 9, leave out from beginning to ("and") in line 10.
Page 63, leave out lines 20 to 41 and insert--
("11.--(1) This Schedule does not prevent an Act of the Scottish Parliament--
(a) restating the law (or restating it with such modifications as are not prevented by this Schedule), or
(b) repealing any spent enactment.
(2) For the purposes of paragraph 3A, the law on reserved matters includes any restatement in an Act of the Scottish Parliament, or subordinate legislation under such an Act, of the law on reserved matters if the subject-matter of the restatement is a reserved matter.
12. This Schedule does not prevent the operation of any provision of the Interpretation Act 1978.
13. This Schedule does not prevent an Act of the Scottish Parliament amending any enactment (including this Act) by changing the name of--
(a) any court or tribunal or any judge, chairman or officer of a court or tribunal,
(b) any holder of an office in the Scottish Administration which is not a ministerial office or any member of the staff of the Scottish Administration,
(c) any register,
in consequence of any provision made by or under an Act of the Scottish Parliament.").

On Question, amendments agreed to.

21 Jul 1998 : Column 832

Schedule 4, as amended, agreed to.

Lord Mackay of Drumadoon had given notice of his intention to move Amendment No. 171:

Page 63, line 41, at end insert--
("(3) Notwithstanding the provisions of sub-paragraphs (1) and (2), an Act of the Scottish Parliament may not amend section 89 of this Act.").

The noble and learned Lord said: Once again, I have a slight problem in that my Amendment No. 171 has disappeared. Under that amendment I had sought to raise a very important issue; namely, whether or not an Act of the Scottish parliament could competently amend the provisions of Clause 89 of the Bill, dealing with the procedures for the appointment and removal of judges. The clause was amended when the Bill was in another place. The contents of the clause were discussed by the noble and learned Lord, Lord Hope, at Second Reading, and the noble and learned Lord, Lord McCluskey, touched on the importance of the independence of the judiciary in view of the important role it will have to play in ensuring that the devolution settlement works.

If the matter has troubled those in another place, it seems that the clause should be improved on from the terms in which it is currently drafted. If, as will undoubtedly be the case, your Lordships will discuss in Committee whether Clause 89 should be further amended, all those efforts could come to nought if it was competent for the Scottish parliament to "amend out" amendments that had been "amended in" during the Bill's passage through this House and another place.

This is a sensitive but important issue. Judges in Scotland will not deal merely with matters that fall within the legislative competence of the Scottish parliament or the competence of the Scottish executive. They will deal with the construction of legislation which will continue to be part of this Parliament, the existing body of statute law and common law relating to reserved matters.

It seems to me that it would be a very important bulwark to the independence of the judiciary that once the Bill has completed its passage through this House, the only means by which Clause 89 should be amended would be by primary legislation brought forward to this Parliament.

In these circumstances, I should very much welcome the Government's response on this issue. I shall not press the matter tonight but I shall take steps to ensure that that problem does not afflict me at Report stage, if we have not reached an accommodation by then. I cannot over-stress the importance of this matter, and I hope that the Minister will be kind enough to tell us the Government's thinking on it.

Lord Fraser of Carmyllie: First, perhaps I may apologise for the fact that I have not played a part in some of the earlier discussions, important though I have indicated I regard them to be. I regret to say that the United States Secretary of State seems to be under the misapprehension that she is now the Lord Advocate for Scotland. The Committee may not be surprised that some of us are more than a little alarmed that matters

21 Jul 1998 : Column 833

which properly fall within the remit of the Lord Advocate should have been taken on board by her and that she should have thought that the best way of dealing with matters of criminal prosecution in Scotland was by announcing them on CNN. Be that as it may, I am sure that my concerns will be understood by many Members of the Committee. My apology is made on that basis.

As we are dealing with Schedule 4, I wish to ask a highly technical question. I do not expect a reply tonight, but, because it is such a technical point, it might be helpful if I were to indicate it now and the Minister might do no more than offer me, in her usual courteous way, the promise that she will write to me. I am intrigued to see on page 62 that in the European Communities Act 1972,

    "Section 2, other than subsection (2) ..."

"shall not be modified". I have written so many boring words about Section 2(2) in the past and what is covered by that subsection. This provision as set out in the Bill is somewhat obscure to me. If the Minister will promise to write to me before the end of the month of September with a full explanation of the provision, I shall be more than satisfied.

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