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Lord Hardie: As the noble and learned Lord said, these amendments prevent future changes to certain parts of the list of reserved matters by Her Majesty by Order in Council. There has been singled out the constitution, in paragraphs 1 to 5 of the schedule, and also judicial remuneration, to which the noble and learned Lord drew our attention.
Any Order in Council requires an affirmative resolution of both Houses of this Parliament. In addition it would require the approval of the Scottish parliament. So the three Houses would effectively consider the matter.
The advantage of the Order in Council mechanism is that it allows changes to the list of reserved matters to be made promptly by agreement, with both Holyrood and Westminster having an opportunity to debate and approve the proposal. These amendments would remove that flexibility and would mean that any changes to these matters would require to be done by primary legislation. We do not consider that that is necessary,
The primary legislation route is undesirable in the context of these amendments, because it seeks to introduce the concept of first and second-class reserved matters. It has a different procedure for the constitution and judicial remuneration from other reserved matters. It is our contention that all matters that are reserved to Westminster are of equal importance and must be seen as such.
I can understand that noble Lords may have some concerns that an Order in Council would mean less control over any changes by the UK Government and Parliament. However, we see no reason why that should be the case. Not only does there have to be the agreement of the United Kingdom Government before the order is drafted, but it requires an affirmative resolution of both Houses of this Parliament and would also require the support of Holyrood.
I do not share the concerns of the noble and learned Lord, Lord Mackay of Drumadoon, about the effect on judicial independence. The independence of the judiciary is not threatened by the provision that the list of reserved provisions relating to remuneration may be altered by Order in Council. It is inconceivable that the United Kingdom Parliament would bring forward an Order in Council which would distinguish between the judiciary in England and Wales on the one hand and the judiciary in Scotland on the other. I cannot imagine that any government would do that. All governments are jealous of the principle of judicial independence.
That is a further protection in relation to the point raised by the noble and learned Lord that, because of the involvement of the judiciary in reviewing legislation, considering legislation or even striking down legislation on occasions, there may be a temptation for the Scottish parliament to wreak vengeance. But that would not be open to it because it requires the Order in Council to be approved in both Houses of this Parliament.
Lord Ewing of Kirkford: Before the noble and learned Lord, Lord Mackay of Drumadoon, responds to the invitation from my noble and learned friend, perhaps I may express my gratitude, having just entered the Chamber, to the noble Viscount, Lord Thurso, for mentioning the Division that took place some minutes ago. Perhaps I may indicate to the Committee that I was dining in another part of the Palace of Westminster, and there was no indication whatever that a Division was taking place in this House.
I have had reason to complain in recent weeks about the fact that in another part of the Palace of Westminster there was no indication that Divisions were taking place in your Lordships' House. I find that totally unsatisfactory. Tonight a Division took place and my noble friends on the Front Bench were successful in their prosecution of the case and carried the Division in the lobbies; but, when I look at the verdict that was
Members on all sides may say, "He is defending his own position, having missed the vote". In some ways I am, because I happen to be on the roster of those who should be here tonight and should vote in any Divisions. I did not do so because I was not told that a Division was taking place. I wish to record the fact that there was no indication in the other part of the Palace of Westminster, where I was dining, that a Division was taking place. I plead that the House officials should take notice of what happened earlier tonight.
Lord Whitty: Before the noble Lord replies to the debate, perhaps I may respond to my noble friend. As he said, a number of these occasions have arisen. When another place rises before us, the annunciators there are switched off, in the same way as our annunciators are switched off when we finish our business. There is clearly a new point here which we need to raise with the House officials and the officials of another place, as my noble friend suggests. We shall do that.
Lord Mackay of Drumadoon: I agree with everything that the noble Lord said. In my room, when Divisions are called in both Houses at the same time, various bells ring, which make it bewildering as to where one is meant to go. I am disappointed that the noble Lord was not here for the Division. I am quite sure that, having listened to the argument advanced by my noble friend Lord Mackay of Ardbrecknish, he would have voted in support of his opposition to the somewhat extraordinary position adopted by his noble friends. He can be grateful that his conscience can be clear as a result of being elsewhere.
I find what the noble and learned Lord the Lord Advocate said about all reserved matters being equally important a somewhat curious proposition to take on board. I happened to open the Bill at page 82, lines 6, 7 and 8, and see among the reserved matters,
I do not labour the matter of judicial remuneration. Those who are in receipt of it are well able to argue in their own cause, as the noble and learned Lord, Lord McCluskey, did to some considerable effect at Second Reading. But, in his absence, it was appropriate that the matter should be raised.
I concede that the noble and learned Lord the Lord Advocate was right to draw attention to the provisions which will apply when the Order in Council procedure is followed; namely, that affirmative resolution will be
I have some lingering concerns, but, in view of the fact that the noble Lord, Lord Ewing, is in his place and would no doubt vote for the Government on this occasion, I shall not press the amendment to a vote. I beg leave to withdraw the amendment.
Lord Renton: I tabled this Motion not with the intention of dividing the Committee but in order to draw attention to the fact that Clause 29 and Schedule 5 together deal in a complicated way with reserved matters; that is, matters on which the Scottish parliament will not have power to legislate. It happens to be a Henry VIII clause which can be altered merely by Order in Council, though subject to affirmative resolution by both Houses of Parliament. But it is done in an extremely complicated way.
Reserved matters are exceptions to the general power stated in Clause 27 given to the Scottish parliament to legislate. But it is done in Schedule 5 by making reservations and then exceptions to reservations over pages 66 to 83--17 pages in all. They are fine distinctions and there are bound to be disputes as to whether a matter is reserved.
It is not until we reach Clause 91 and Schedule 6 that we find the arrangements that are to be made for resolving the uncertainties, which I suggest are bound to arise. There, under the heading of "Devolution Issues", the Bill sets out in Schedule 6 (not in the clause, as one might have expected) that arrangements are made for the determination of such issues by proceedings to be instituted either by the Advocate General or the Lord Advocate. I do not see why it should be one or the other; I should have thought it best that that responsibility should not be divided between the two but should be placed upon one or other of them.
In paragraph 7 of Schedule 6 we find that that vitally important matter is to be decided judicially. It is just tucked away in the schedule. That is not the way in which we are accustomed to legislate. It may be that, as the matter went through its rather cursory proceedings in another place and because we should not try to change the Bill too radically, there is not much we can do about that. But we have the long Recess between now and Report stage and I hope that the Government realise that in this important matter of granting devolution to the Scottish parliament we should make the matter as clear as possible. We should try to avoid uncertainties which will give rise to the need for judicial decisions.
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