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The Earl of Mar and Kellie: It is undoubtedly correct to incorporate the content of these amendments into the First Reading procedure in the Scottish parliament. I am sure that the Scottish parliament will do that. But, as the question of the vires of the parliament will always be a major component of the scrutiny process in the Scottish parliament, on these Benches we do not believe that it is necessary to incorporate the amendment on the face of the Bill.
Baroness Ramsay of Cartvale: Amendments Nos. 228 and 232 tabled by the noble Lord, Lord Mackay of Drumadoon, are, in our view, unnecessarily prescriptive. We agree with the views put forward by the noble Earl, Lord Mar and Kellie. We do not believe that we should be trying to prescribe how Scottish ministers should make the statement required by Clause 30. We should leave it to the parliament and Scottish ministers to agree on how the information required by Clause 30 is presented both to the parliament and the public at large.
It is possible, for example, that the statement would be included as part of the memorandum accompanying the Bill when it is introduced, just as at present the Explanatory and Financial Memorandum accompanying a Bill introduced in this House includes information on various matters. On the other hand, if we accepted the
Equally, if any member of the parliament decides that it would be helpful to have a view from the executive on the legislative competence of a Bill at some stage after introduction, it would be up to that member to seek the view of the minister during debate. We do not need Amendment No. 232 to allow that to happen, and it seems quite inappropriate to require that such a view must be given in every case at two stages of the passage of a Bill.
I hope that noble Lords will agree that we are right to leave it to the Scottish executive and the parliament to develop its working practices which will ensure that questions relating to legislation, including the vires of legislation, can be revised and addressed as appropriate. It is our intention that the parliament should be allowed, where appropriate, to decide for itself how it should operate day to day.
We also consider that the other amendment in this group, Amendment No. 229, is inappropriate. It is likely that a member of the Scottish executive will want to seek the approval of his colleagues before making a statement about the legislative competence of a Bill before it is introduced into the parliament. But, at the end of the day, it will primarily be his responsibility to satisfy himself that the Bill he is responsible for is within the legislative competence of the parliament. It is therefore appropriate that the statement will record his view. However, there is the safeguard that all the ministers will be legally responsible for any such statement through Clause 48(4) which provides that, among other things, any act of a member of the Scottish executive will be treated as an act of each member of the Scottish executive.
Baroness Carnegy of Lour: I was interested in that reply. I expect to an extent that it holds water well. However, I remind the noble Baroness that this matter and others which we are about to deal with are not just questions of the law and legal mechanics. How the public view the progress of the Bill in the parliament, the discussion and so on will matter very much. The reputation of the parliament and the quality of Scottish legislation will hang on the smooth working of the system.
The noble Lady said that the Government do not mind whether this statement is made prior to the Bill being laid before the parliament or whether it is in the Explanatory and Financial Memorandum. If one thinks this through and tries to imagine how the procedure will work, I think it would be much better if the statement was made before the Bill appeared. Once the Bill is printed, the die is cast and the Bill has to be discussed. People will want to know that it is considered to be intra vires, and why, before they begin to discuss it at all.
I wonder whether the Government have thought that out. Are the alternatives equally good? Of course the parliament needs to have a say in as much as possible of its proceedings, but these matters are of great importance to the extent that the quality of law is affected and as regards the way in which people view the parliament. Have the Government really considered whether these alternatives are equally good?
Baroness Ramsay of Cartvale: I agree wholeheartedly with the noble Baroness that this is not just a question of legal mechanics. I also agree with her that the workings and the proceedings of the parliament and how they are viewed by the public are matters of the utmost importance. But does not the noble Baroness think that the members of the Scottish parliament would think of that as well? The Government have thought through carefully what the Bill contains on these points and, as always, the amendments that are proposed by the noble and learned Lord, Lord Mackay of Drumadoon. The view of the Government is that they are unnecessarily prescriptive, as I have said, and that there is adequate coverage of the basic principles underlying them in the Bill as it stands.
Lord Hylton: I appreciate what the Minister has said about Clause 48 which asserts collective responsibility within the executive, but so, in my view, does Amendment No. 229. It would have the merit of building in the legal point of view of the Scottish Law Officers at the earliest possible stage. Here I agree with the noble Baroness, Lady Carnegy of Lour, that it is desirable that this clarity should be introduced into the proceedings of the parliament at the earliest possible stage in each Bill.
Baroness Ramsay of Cartvale: I appreciate the concern of all Members of the Committee to make sure that the best practice is in force in the Scottish parliament. That is something we all agree on. However, if I may say so, I think there is a tendency to try to second guess the members of the Scottish parliament in dotting every "i" and crossing every "t" as to what they should do at all times. The Government trust the good political sense and the good common sense of the members of the Scottish parliament. I stand by our opinion of these amendments which is that they are over-prescriptive and unnecessarily prescriptive.
Lord Rodger of Earlsferry: I hope the noble Baroness can help me. I, of course, understand the point that she makes about trusting the Scottish parliament and, presumably, the Scottish executive. Can she explain the practice of this clause? She mentioned en passant Clause 48(4) giving rise to some kind of collective responsibility on the part of the Scottish executive. I understand that; but what is the nature of this responsibility? If the statement turns out to be wrong--it has been made for some purpose which I do not quite follow--what is the nature of the responsibility which is being shouldered by the Scottish executive for that statement?
Lord Rodger of Earlsferry: I understand that. The question is, what is the responsibility which the Scottish executive shoulders by making the statement? Will it become liable for damages to people who have relied upon the statement? What exactly is the purpose of the statement and what is the nature of the responsibility that is assumed?
Baroness Ramsay of Cartvale: The purpose of the statement--which the noble and learned Lord, Lord Mackay of Drumadoon, also seeks in his amendment, and which the Government have laid down in the Bill--is that the Scottish executive assumes the responsibility of saying that in its judgment the Bill (or whatever it is bringing forward) is within the vires, the power and competence of the Scottish parliament. I do not think it is any more or any less than that. It would be challenged in the usual way if there was anything wrong. It is not intended to be a legal responsibility on the executive; it is a statement to ensure that the executive has properly considered the issue and made a proper judgment in so far as it is competent to do so--one would hope it would have considerable competence--that the measure is within the power and competence of the Scottish parliament.
Lord Mackay of Drumadoon: I am grateful to the noble Baroness for giving such a full response. However, I have some difficulty with Clause 48(4). As I understand it, it seeks to deal with situations where some form of legal liability or legal rights may arise as a result of the acts or omissions of one member of the Scottish executive which binds the executive and any other member of it. Over the Recess I shall think carefully about the reliance which the Government place on that.
I began to think that in her closing remarks the noble Baroness was coming round to the view that there may be some merit in the approach that I advocate because she talked of the Scottish executive putting forward a Bill which in its judgment--those were her words--fell within the legal competence of the parliament. I am sure she is correct about that. It is inconceivable that a Bill will be put forward without the Scottish executive as a body being satisfied that the Bill falls within the legal competence of the parliament. If that is so, I have some difficulty as to why it is the personal view of the member that is provided for in Clause 30(1) and not the view of the Scottish executive. I do not regard the giving of the view as an act or an omission. I regard it as an expression of opinion on what I have already suggested is a highly complicated question of law.
This matter will benefit from some thought over the Recess, particularly when we consider in detail the long Pepper v. Hart statement about Clause 28 which was made some days ago. On the understanding that this matter may be worth revisiting, I beg leave to withdraw the amendment.