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Lord Sewel: No, I think that in this case I do mean "the English zone" because the Northern Ireland and Welsh considerations must be taken into account.
Viscount Thurso: In this amendment, the Minister has introduced two points; first, the concept of functions, which I think that I follow although I am not sure about it. Secondly, he referred to fisheries. The noble Lord will know from our correspondence and many conversations of my interest in fisheries in Scotland, as chairman of Scrabster Harbour Trust, and the importance that I attach to that. I cannot pretend for a moment that I have fully taken on board what the Minister has said. As he indicated that there will be an opportunity to speak to that question at a later stage, rather than try to comment now, I should like to study what he said. If he has anything available by way of an explanatory note, I should be extremely grateful to receive a copy.
I turn to the first point with which I started: the introduction of the concept of functions. I regard Clause 29 as extremely important. All of the previous three clauses that we have debated are interlinked. I am not sure whether my comments should be directed to the amendment of the noble Lord, Lord Sewel, the amendments tabled by the noble and learned Lord, Lord Mackay of Drumadoon, or the intention of the noble Lord, Lord Renton, to oppose that the clause stand part. I shall take this opportunity to comment generally on Clause 29 and hope that it will remove the need for a later intervention.
Clause 29 as a whole deals with the ability of Ministers by Order in Council to make modifications to Schedules 4 and 5 which are the reserved matters. It is impossible to discuss this clause without going back to the debate on Amendment No. 144 in the name of my noble friend Lord Steel. In that short debate the noble Lord, Lord Sewel, extremely seductively and with great skill sidetracked the Committee by a discussion on federalism. That was not the question in point. If the definition of sovereignty is the final power in any matter, by virtue of the fact that the Parliament at Westminster retains the right to modify, amend or repeal this Act at a later stage clearly sovereignty is retained. Therefore, sovereignty is never in question.
However, we took into account the comments of the noble Lord and his assurance as to the seriousness with which matters were to be devolved and reserved. The clause permits by Order in Council the matters within Schedules 4 and 5 to be changed almost by the flick of an administrative pen. This is a very technical area. Since I am not a lawyer I am happy to be corrected. However, given all of the assurances that we have received about the seriousness with which the Government intend to devolve matters to the Scottish parliament, and their firm intention--which we do not doubt; indeed, we share it--that that parliament will have full exercise of those devolved powers, it is extraordinary in the face of those goods intentions that a clause should allow a UK Minister, by an administrative flick of the pen, to remove or add to the reserved powers.
In discussing this matter with my noble friends a short while ago I suggested that if there was no satisfactory explanation this would be the place, if not in the context of my noble friend's amendment, where we should table an amendment. I shall not make the exaggerated claim that this goes to the heart of the Bill. However, I believe that it goes to the heart of the question whether the message that the Government intend to send to the people of Scotland is that this is substantive devolution or just window-dressing. I apologise to the Committee if I have strayed into a debate on Clause 29 stand part but these matters are so complicated that I want to get my oar in before the matter disappears.
Lord Kingsland: I have three very short questions to put on Amendment No. 173ZA. First, on whose advice is it intended that Her Majesty shall act? Secondly, is the Minister aware of the breathtaking scope of this authorisation of delegated legislation to amend primary legislation?
Thirdly, is the Minister aware that under a part of the Bill which is supposed to be devoted to legislation he has included an amendment which deals with executive functions? Would it not be more proper, as well as more elegant, to include the substance of Amendment No. 173ZA under ministerial functions starting in Clause 41?
Lord Mackay of Ardbrecknish: This group of amendments is a puzzling mix. I had not paid much attention to Amendment No. 173ZA because that was in a part of the Bill with which my noble and learned friend Lord Mackay of Drumadoon was dealing. For some reason that I cannot understand he seems to think that Amendment No. 193ZA and so forth is well within my bailiwick because it mentions fish.
Perhaps I can be sure that we are taking the whole of the group which starts with Amendment No. 193ZA and which includes Amendments Nos. 293A and 293B tabled by my noble friend Lord Selkirk of Douglas, so that my noble friend does not lose the opportunity to speak on the issue of sea fishing. I shall start with the simpler matter, although fishing is never simple.
After his explanation, I think that I understand what the Minister is doing. I was puzzled when I saw the amendments, but I understand that he is making it clear that he is dealing with vessels fishing within the Scottish zone, which is out to the median line, I presume, or the 200-mile limit in the North Sea. I think that it is bound to be the median line. Down around the south of Islay it is bound to be the median line with Northern Ireland, I would guess. Vessels fishing there are clearly fishing in Scottish waters when it comes to the application of the law. That is the point to make to my noble friend Lord Dixon-Smith: it is to make it clear that Scottish law will prevail with regard to fishing vessels fishing in those waters, whereas, of course, English and Welsh law will prevail if they are fishing in waters which are within the English zone. I understand that.
I understand also from what the Minister said that the exception in relation to Scottish fishing boats outside the fishing zone does not include the rules and regulations, so we will not have the position, as I thought we might have, where the Scottish Office would have to make the rules and regulations for Scottish fishing boats fishing, say, off the south west of England. These boats will be regulated by MAFF which will have given them a licence to fish in that fishing zone. Presumably, being law-abiding Scots they will fish only if they have a licence.
My problem occurs when I am asked to tie in Amendment No. 173ZA with these amendments on sea fishing which all go together. The Minister suggested at the start that Amendment No. 173ZA applied only to the new Section 5A on sea fishing, but he then indicated that it did not; that it could apply to Clause 28. I wondered why an amendment of such breadth and -dare I say?--close to being a Henry VIII provision, if not firmly being in Henry VIII territory, had been introduced at this stage when the Delegated Powers Scrutiny Committee has completed its scrutiny of the Bill.
My noble friend Lord Kingsland came in on that point. Amendment No. 173ZA is extraordinarily wide. If the Government want it to refer to sea fishing that is what it should say. If it goes wider than that, it should have been separated from the sea-fishing amendments to prevent us thinking that it applied only to the sea-fishing provisions. I am content with the sea fishing amendments. I have taken advice. Having listened to the Minister, I shall consider what he said before Report stage. I am reasonably content with what he said about sea fishing. However, like my noble friend Lord Kingsland, I am less than happy with Amendment No. 173ZA. I hope that the Minister can give me some words of assurance; otherwise I may be disposed to divide the House.
10.45 p.m.
Lord Sewel: Perhaps I may recap and I hope give some assurance to noble Lords who have spoken on these amendments.
The amendments are required, first, in order to ensure that there is an effective transfer to Scottish Ministers of functions in relation to the regulation of Scottish sea fisheries; and, secondly, to ensure that the competence of the Scottish parliament and of Scottish Ministers does not extend to regulating sea fishing by non-Scottish boats outside the Scottish zone of British fishery limits. Those are the two issues that the amendments seek to address.
Lord Renton: I am grateful to the Minister for giving way. We are dealing with the powers of parliament not with the powers of Ministers.
Lord Sewel: The proposed Order in Council does not modify enactments but merely provides what functions are or are not exercisable in or as regards Scotland.
Perhaps I may deal with another direct point. The Order in Council power in Clause 29 is exercisable by the Queen and is subject to affirmative procedure both at Westminster and in the Scottish parliament. The ministerial advice to the Queen would be given by the UK Minister.
I refer specifically to the amendment that gives the noble Lord, Lord Mackay of Ardbrecknish, some concern. The purpose of Amendment No. 173ZA is to clarify which existing ministerial functions will transfer to Scottish Ministers--it is as simple as that--by providing for Her Majesty by Order in Council to specify which functions are or are not functions exercisable in or as regards Scotland. This provision should therefore clarify when functions which are exercisable outwith Scotland are in fact exercisable as regards Scotland by virtue of some other connection to Scotland.
It will be used principally for fisheries functions. That is its principal objective. However, having set this pattern, this framework, this arrangement, it is possible that there will be other uses--for example, in relation to the protection of the marine environment. I think that we are over-egging the pudding a little if we see it as
some major matter of principle. The amendment seeks to deal with the specific issues of what functions should be exercisable by Ministers and the parliament in relation to the coastal areas around Scotland; and in particular the difficulty of fisheries where one has zones, boats and licences.
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