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Lord Selkirk of Douglas: The Minister included Amendment No. 193ZA and the group associated with it. I have tabled Amendments Nos. 293A and 293B. Amendment No. 293A seeks to leave out "adjacent to" and insert "surrounding". The purpose was to clarify the definition of Scotland to include the internal waters and territorial sea. The definition in Amendment No. 112 seemed unclear, and the amendment sought to clarify it. I should be grateful if the Minister has time to consider it.
Lord Sewel: I can deal with that matter now, although there will be an opportunity later to discuss it in detail. However, I can assure the noble Lord that in all fisheries legislation the term "adjacent to" is the term that is used. The term "surrounding" is not a term which is used in fisheries legislation.
Lord Mackay of Ardbrecknish: As I said when I intervened the first time, I am reasonably content with the fisheries part, which I had expected to be taken separately. I will certainly read what the noble Lord has said and will take advice on it but, as I understood it, I am reasonably content with what he said. I remain profoundly concerned about Amendment No. 173ZA. If it has principally a fisheries function, I believe that ought to be said very clearly. If it has other uses then those ought to be put clearly, but as it stands it seems to me to be extraordinarily wide and it gives the executive very considerable powers. I really am very unhappy and, as my noble friend said, it probably is not even in the correct part of the Bill. I think it would be far safer if the Minister would take this particular amendment away and reconsider it. He could then bring it back, if he wants to, at the appropriate part of the Bill, and much more tightly drafted so that it actually applies to those matters to which it is supposed to apply and is not capable of being applied to anything else.
I have little doubt that the noble Lord could take this away and come back at Report stage in October, after he has thought about the matter. I would urge him to do that; or, indeed, he could do as my noble friend suggested and place it in Clause 41--which I do not think we will reach tonight. I think there will be time for him to put down a suitable amendment to that clause.
Lord Sewel: I have listened to what noble Lords have said and to the concerns they have expressed. I would prefer to maintain the present position and persist with the amendments, but I give the undertaking that I shall reflect upon what noble Lords have said yet again, over the long summer evenings that beckon--there is little else to do, given the state of the weather!
10.53 p.m.
On Question, Whether the said amendment (No. 173ZA) shall be agreed to?
Their Lordships divided: Contents, 44; Not-Contents, 29.
Alderdice, L.
Brooks of Tremorfa, L.
Burlison, L.
Carlisle, E.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Dean of Beswick, L.
Desai, L.
Dubs, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gilbert, L.
Gordon of Strathblane, L.
Grenfell, L.
Hacking, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hayman, B.
Hoyle, L.
Islwyn, L.
Linklater of Butterstone, B.
Lockwood, B.
McIntosh of Haringey, L. [Teller.]
Mackie of Benshie, L.
Mar and Kellie, E.
Monkswell, L.
Paul, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Sewel, L.
Smith of Gilmorehill, B.
Steel of Aikwood, L.
Stone of Blackheath, L.
Thomas of Macclesfield, L.
Thomson of Monifieth, L.
Thurso, V.
Tope, L.
Watson of Invergowrie, L.
Whitty, L.
Young of Old Scone, B.
Balfour, E.
Byford, B.
Carnegy of Lour, B.
Chesham, L.
Courtown, E. [Teller.]
Dundonald, E.
Dunleath, L.
HolmPatrick, L.
Kenyon, L.
Kingsland, L. [Teller.]
Kintore, E.
Lindsey and Abingdon, E.
Lucas of Chilworth, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Minto, E.
Montrose, D.
Palmer, L.
Park of Monmouth, B.
Renton, L.
Rowallan, L.
Saltoun of Abernethy, Ly.
Selkirk of Douglas, L.
Sempill, L.
Stair, E.
Stodart of Leaston, L.
Torphichen, L.
Trefgarne, L.
Weir, V.
Resolved in the affirmative, and amendment agreed to accordingly.
11. p.m.
Lord Mackay of Drumadoon moved Amendment No. 173A:
The noble and learned Lord said: This amendment is grouped with Amendment No. 173B. Both seek to achieve the effect that certain specified parts of Schedule 5 shall not be amendable by Order in Council passed in furtherance of the powers set out in Clause 29(2) as currently drafted.
The two parts of Schedule 5 to which I seek to apply this restriction are, first, that which is to be found on page 64 of the Bill; namely, the first five paragraphs of
Amendment No. 173B deals with a matter which is set out on page 82 of the Bill under "Head 11"; namely, Section 1, which refers to a "reservation" as regards the important matter of judicial remuneration, with four separate subparagraphs listing the different judges in Scotland.
Some weeks ago, I attended a very interesting seminar held by the Faculty of Advocates in which the noble and learned Lord the Lord Advocate and I took part. It was held under the Chatham House rules and, therefore, I am unable to indicate who said what. However, it is possible for me to indicate what views were expressed. Among the issues discussed and to which contributions were made was the issue of the importance of judicial remuneration being a reserved matter. My understanding of what was said is as follows.
When the Government came forward with their proposals for a devolution settlement and set them out in the White Paper prior to the referendum and it became clear that, as a result of the referendum, a devolution Bill was to be presented to Parliament, various representations were made on behalf of the judiciary in Scotland that they should continue to be regarded for the purposes of salary and pension provision on the same footing as they currently enjoy with judges in other parts of the United Kingdom. Indeed, if this equal footing which has applied for many years now were to be departed from, there would be a risk of judges in Scotland--or, at least, certain categories of them--falling behind and their status being diminished.
I pick up a point which I made earlier this evening in referring to what the noble and learned Lord, Lord Hope of Craighead, said in his Second Reading speech on the Bill. It is of the utmost importance that the independence of the judges be maintained and that their status and the respect in which they are held by society should not be diminished in any way.
If--as will be possible--it will fall to judges in Scotland to set aside provisions of an Act of the Scottish parliament, or provisions in statutory instruments and secondary legislation made by members of the Scottish executive, it is not impossible that this will lead to an element of political controversy. They will have--as indeed will judges in other parts of the United Kingdom--a far greater role to play in dealing with primary legislation in particular than is possible for judges when they are construing and applying primary legislation coming from this Parliament. It is for that reason that the Scottish judges felt that judicial remuneration should be reserved. The Government sensibly and constructively accepted those representations; hence the provisions that are to be found on page 82 of the Bill. It seems to me sensible
Viscount Thurso: Before I speak to Amendments Nos. 173A and 173B, I wish to comment briefly on the previous debate as I did not realise that the noble Lord, Lord Mackay of Ardbrecknish, was going to divide the Committee so quickly. I was therefore unable to speak at that point. However, I wish to explain why I persuaded my noble friends to join me in the Government Lobby. Our objection is to the totality of Clause 29 and the implication that amendments to devolved matters and reserved matters cannot be dealt with by Order in Council. Therefore if there is anything that we might support, it would be the intention of the noble Lord, Lord Renton, to oppose the Question that the clause stand part of the Bill.
However, we also feel that, given the complexity of what we are discussing, and particularly the complexity of the amendments that have been moved by the Government, we prefer to wait until a later stage to determine what course of action we wish to take. At this stage we think it is preferable to read what has been said before making such decisions. That is why I persuaded my noble friends to follow me into the Government Lobby.
Turning to the two specific amendments, I do not see any great harm in Amendment No. 173A. The principle of the Bill is to devolve devolved matters, and to reserve reserved matters. Since the amendment reinforces the reserved matters, I do not mind that at all. What I am looking for is the other side of the coin; namely, that devolved matters are well and truly devolved.
Amendment No. 173B afforded me some amusement when I read it, given the volume of lawyers, judges and potential judges taking part--that their status and pay is the one matter above everything else that needs to be enshrined in this legislation forever.
Page 15, line 27, at end insert--
("( ) Subsection (2) above does not permit any amendment to be made to the provisions of paragraphs 1 to 5 of Part I of Schedule 5 by Order in Council.").
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