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Lord Renton: I too must present my apologies to the Committee for not having been present during discussion of all the amendments since the adjournment. I feel that we are getting into a very complicated situation, which has been made more complicated by the amendments which have been moved by the noble Lord, Lord Sewel. Clauses 28 and 29 and the fourth and fifth schedules all have to be considered together. I shall welcome the long Recess in order to consider in detail what the combined effect of those provisions will be.

It is all very well for us to do all that we can, as zealously as we can, and with the accuracy of detail which is necessary in legislation, in order to ensure that the reserved powers from the Scottish parliament--

Lord Sewel: I am grateful to the noble Lord for giving way. As the noble Lord recognised, he was not in his place when we dealt with the list of amendments to the clause in question. I tried to explain in some detail the thinking and understanding of the Government in moving that series of amendments. I also made clear--this may help the noble Lord at this stage and perhaps satisfy him--that if Members of the Committee with a special interest in this area feel that there are matters which could be advanced through discussion, I shall be happy to have those discussions with my officials and Members of the Committee. I hope that that is something the noble Lord, Lord Renton, will feel able to take up if he wishes to pursue it and that it satisfies him at this stage.

10.15 p.m.

Lord Renton: I am grateful to the noble Lord for that intervention. This is a difficult and complicated matter. We shall need time to consider it. In view of what he said, I can curtail my remarks.

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When we get down to the detail of the fourth and fifth schedules, we find that there are exceptions to exceptions. In the years to come, there will be those who will have to do their best to administer the situation and sometimes reconcile what appear to be conflicts in the exceptions within the exceptions. They will have a difficult time. Therefore, between now and October, we should take all the time that we can--private time for each of us--to consider how it is likely to work out.

Baroness Ramsay of Cartvale: Perhaps I can attempt to give some reassurance in answer to the noble and learned Lord, Lord Mackay of Drumadoon. If Amendment No. 171 had been moved, it would have prevented an Act of the Scottish parliament from modifying Clause 89 in relation to the appointment and removal of judges. The noble and learned Lord explained why he was concerned about what was meant by the wording of the Bill at the present time.

I can assure the noble and learned Lord that it is not our intention that the Scottish parliament should be able to modify the substance of Clause 89. Paragraph 11 of Schedule 4 allows an Act of the Scottish parliament to modify various titles, including those of the Lord President, the Lord Justice Clerk, sheriffs principal and sheriffs. But it does not allow the substance of Clause 89 to be altered. In any case, paragraph 11 has now been replaced by the Government's Amendment No. 169A which makes it clear that only the names may be changed.

I hope that that explanation goes some way to provide some of the reassurance that the noble and learned Lord seeks. He also went wider than the terms of the amendment into some complex matters to which we will come later in the Bill and perhaps we can deal with them then. I shall be delighted to write to the noble and learned Lord, Lord Fraser of Carmyllie, and hope that the noble Lord, Lord Renton, feels that he received the assurance he requires for future dealings on the complex matters he raised.

Lord Mackay of Drumadoon: I thank the noble Baroness for her reply which certainly met my anxiety. I shall re-read the schedule with eager anticipation of finding the satisfaction which, to some extent, I have already received.

Perhaps I can make a suggestion which the Government might take on board. I do not want to frighten the Government Chief Whip but it is possible that this Bill will not have completed its Committee stage before the House rises. For that reason, might it be possible to prepare a document to be available to all Members of the Committee setting out the terms of Clause 28 and Schedule 4 as now amended? Indeed, it may be of assistance for it to be available to us next week. These are important changes brought about by the government amendments.

It is obviously a document which will have no formal status, but I imagine that the draftsman could print it out tomorrow morning. If we had the wording of Clause 28

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and Schedule 4, as amended, before us next week and certainly during the Recess, it would be of considerable assistance.

Lord Sewel: I think I can reassure the noble and learned Lord. There will be practical issues to overcome but I do not think that they will be insuperable. I shall see what we can do.

[Amendment No. 171 not moved.]

Schedule 4, as amended, agreed to.

Clause 29 [Reserved matters]:

Lord Sewel moved Amendments Nos. 172 and 173:

Page 15, line 23, leave out from ("matters") to end of line 24.
Page 15, line 26, leave out ("that Schedule") and insert ("Schedule 4 or 5").

On Question, amendments agreed to.

Lord Sewel moved Amendment No. 173ZA:

Page 15, line 27, at end insert--
("(2A) Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Scotland.").

The noble Lord said: I wish to speak to a package of amendments which relate to the devolution of functions in relation to the regulation of sea fishing. The first is Amendment No. 173ZA to Clause 29. We will have an opportunity to debate related amendments, Amendments Nos. 193ZA, 293AA and 293AB and 294A to Schedule 5 and other clauses, later. It will be for the benefit of the Committee if I outline the complete package at this stage.

In the White Paper, Scotland's Parliament, the Government made clear our intention to devolve functions relating to sea fisheries subject to suitable co-ordination arrangements to ensure effective discharge of UK obligations. The devolution of functions which are exercised at sea has raised particular questions for the Bill which have required careful thought. The Government are now in a position to table a set of amendments to ensure effective devolution.

Lord Mackay of Ardbrecknish: I am in some trouble as to exactly to which group the noble Lord is speaking. I do not mind doing things in the way the noble Lord is suggesting but perhaps he would indicate where we are.

Lord Renton: Before the noble Lord, Lord Sewel, replies to my noble friend, I wonder whether he would bear in mind that in Clause 29 we are dealing with reserved matters of legislation. However, his amendment refers to "functions". In relation to legislation, I am a little puzzled as to what "functions" means. Here we have an opportunity for Her Majesty, by Order in Council, to specify functions which are to be,

    "exercisable in or as regards Scotland".

But they are presumably legislative functions. Here I am a little worried because we have a problem with regard to what are known as Henry VIII clauses. Later in the

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Bill we find that where Her Majesty is given power by Order in Council an affirmative resolution of Parliament is required. That is something of a safeguard. However, I find it a little mysterious that we should be giving Her Majesty by Order in Council the power to specify "functions" which are to be treated for such purposes as may be specified. It is all a little unusual.

Lord Hylton: In support of the noble Lord, Lord Renton, I notice that the amendment refers to "functions" whereas Schedule 5 refers to "matters". Are "matters" and "functions" the same thing?

Lord Sewel: I was brought up to understand that "functions" are things that are done; "matters" may be subjects. That is the fundamental difference.

Perhaps I may reply to the noble Lord, Lord Mackay of Ardbrecknish. Clearly, the matter before the Committee at this stage is Amendment No. 173ZA, but it may be useful if I speak to Amendments Nos. 193ZA, 293AA, 273AB and 294A for the sake of completeness.

Perhaps I may continue from where I was. The devolution of functions which are exercised at sea has raised particular questions for the Bill, which have required careful thought, and the Government are now in a position to table a set of amendments to ensure effective devolution.

As Members of the Committee will understand, the exercise of ministerial and other functions in relation to the regulation of sea fishing will often mean that functions are being exercised outside Scotland. In passing, I should remind the Committee that, for the purposes of this Bill, Scotland includes the 12-mile territorial seas around Scotland, as provided in Clause 112.

When such regulatory functions are exercised outside Scotland, there will need to be clear connections to Scotland to justify action being taken by Scottish Ministers and for Scottish courts to recognise jurisdiction in trying offences under Scots law. At sea, however, it is possible to envisage various possible connections to Scotland that might be thought to satisfy the condition "as regards Scotland". Equally, it might be possible to establish various connections to other parts of the UK in respect of any particular function.

This possibility of various such connections being recognised will mean that there will be legitimate grounds for doubt as to whether an existing function is or is not exercisable "in or as regards Scotland", and therefore whether or not it does transfer to a Scottish Minister.

Amendment No. 173ZA to Clause 29 is intended to address that specific doubt, by enabling an Order in Council to be made to specify when existing functions are or are not exercisable in or as regards Scotland. By enabling such doubts to be resolved, such Orders in Council will make clear when existing functions may be transferred to Scottish Ministers under Clauses 49 or 59, and thus avoid the risk of both Scottish and UK Ministers seeking to exercise identical functions. This power will be used principally for fisheries functions, but will have other uses, for example, in relation to

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protection of the marine environment. It will also be able to be used for the purposes of Clause 28 so as to clarify the circumstances in which an Act of the Scottish parliament can confer functions upon Scottish Ministers in or as regards Scotland.

Amendment No. 193ZA to Schedule 5 introduces a specific reservation to make clear that the competence of the Scottish parliament will not extend to regulating sea fishing beyond the Scottish zone, except in relation to Scottish fishing boats. This amendment is to address a similar but complementary concern to that I have already described; that to ensure that functions in relation to sea fishing which may be considered to satisfy the condition "as regards Scotland" should not enable the Scottish parliament or Scottish Ministers to act in relation to non-Scottish fishing boats operating outside those waters which are under the administrative responsibility of Scottish Ministers. All fishermen, not just UK fishermen, need to be clear when they are operating under the laws of Scotland or the laws of the rest of the UK. For laws which apply to sea areas, there needs to be a clear boundary between seas where Scots law will apply and where English law applies; and for that boundary to be fully effective, the Bill needs to make clear that it will be beyond the competence of the Scottish parliament or of Scottish Ministers to regulate fishing outside the zone where Scots law does apply.

The introduction of this reservation requires us to introduce into the Bill two concepts which need clear definition: the Scottish zone, where Scottish Ministers will be responsible for regulating sea fishing; and Scottish fishing boats, which will be subject to regulation by Scottish Ministers, although subject also to local fisheries laws which apply when they are fishing outside the Scottish zone.

Amendments Nos. 293AA and 293AB (to Clause 112) provide for a Scottish zone to be established by Order in Council. Amendment No. 193ZA (to Schedule 5) includes a definition of Scottish fishing boats, by relying on the requirement for all such vessels to be registered under the Merchant Shipping Act 1955, and for their registration to indicate a port chosen by the vessel's owners.

I am conscious that the requirements to implement devolution for sea fisheries has raised interesting problems for our legal advisers, and indeed for UK fisheries Ministers who remain rightly determined to ensure that UK obligations to manage fisheries under the common fisheries policy are implemented effectively. The Government wish to avoid any gaps emerging in our enforcement of EU legislation for sea fisheries, even if that appears to provide for overlapping responsibilities of fisheries Ministers after devolution. In particular, that objective may require further amendment to the Bill to ensure that certain regulatory functions can, if necessary, be exercised concurrently by both Scottish and UK Ministers.

At the same time, we are concerned to avoid introducing unnecessary complications in the administration of fisheries for the fishermen themselves.

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By introducing an explicit reservation in relation to the regulation of sea fishing by non-Scottish boats outside the Scottish zone, the Bill should provide greater certainty about the management responsibilities of the respective fisheries Ministers within the UK and of the Scottish parliament.

In effect, Scottish Ministers will be responsible for managing fisheries within the Scottish zone and for managing Scottish boats; and MAFF Ministers will be responsible for managing fisheries within the English zone and for managing English boats. The responsibilities of the Welsh and Northern Irish Ministers and assemblies will be a matter for their respective Bills.

This overlapping set of responsibilities, which arises because of the need to regulate both by sea area and by fishing boats which may operate in various areas, opens up a possibility that UK fishing boats in future may be required to operate under the authority of separate licences issued by the fisheries administrations of the different parts of the UK.

I would like therefore to take this opportunity to make it clear that, although the Bill opens up such a possibility, it does not inevitably lead to a requirement for separate licensing systems to apply simultaneously to all UK fishing boats; quite the contrary. Although none of us can commit the Scottish executive, my right honourable friend the Secretary of State expects that the current licensing arrangements, based on issue of a single licence, should continue to operate with minimal disturbance. We expect fishermen will operate under licences issued by the fisheries Minister responsible for that part of the UK where their fishing boat is registered; and that their licence will be both valid and enforceable around the UK, in much the same way as at present. I beg to move.

10.30 p.m.

Lord Dixon-Smith: Before we leave this subject, can the Minister confirm that when, on fisheries matters, he refers to "the English zone", he means "the United Kingdom zone"; otherwise we are introducing a dimension separate from the Bill?

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