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Lord Gray of Contin: I take issue with the noble Lord, Lord Steel of Aikwood. I do not believe that that is the purpose behind the amendment. I support my noble and learned friend Lord Mackay of Drumadoon.
We must remember that we are dealing with a completely new parliament which will operate in a completely different way. It will be a single chamber parliament; there will not be anyone at a second stage able to pull back anything that it does wrong. What it finally decides will be there for all time.
Whatever those of us who spoke against the Bill on Second Reading may feel about the principle of a Scottish parliament, that stage has passed. We are all now united to try and produce legislation which will make a Scottish parliament as workable as possible. Anything that we can do to prevent a Scottish parliament from getting itself into trouble should be applauded.
I do not take the view that this amendment necessarily makes the Scottish parliament subservient to this Parliament in any definite way; it is a co-operative measure. None of us knows what the pre-legislative arrangements will be and they could vary from government to government. For example, we do not know whether every Scottish Bill, before it ever reaches the Scottish parliament, will be canvassed for comment among United Kingdom Ministries. At the present time, when a department has legislative proposals, other departments are given the opportunity of commenting upon them. Whether that will be the way in which the new Scottish parliament will work, nobody knows.
Therefore, the amendment would be, in a sense, a safeguard so that, before the Scottish parliament embarked upon something which might be quite radical and new, other departments would be aware of it. Let us not forget one of the points with which I am sure the noble Lord, Lord Steel, would heartily agree. The Scottish parliament is still going to be operating within the United Kingdom. It will not be an independent parliament and therefore, if it is within the United Kingdom, surely it is right that other departments within the United Kingdom should be allowed to comment upon it and that Members of both Chambers should be kept fully informed as to what it proposes. There will then be no danger of it doing anything that will put the Union at risk.
Lord Renton: I support my noble friend Lord Gray of Contin and wish to add one or two points to this rather important discussion.
It is essential that the arrangements that we make under the Bill for the proceedings of the new Scottish parliament should avoid delays and uncertainties. If subsection (2) remains and the parliament has to debate whether or not a decision of the presiding officer is to be accepted, such a debate could take up a vast amount of time, be extremely controversial and not help at all.
The presiding officer in the new parliament will be analogous to the Speaker of the House of Commons. Those of us who served in the House of Commons remember well that when the Speaker made rulings, the House accepted them. It is important that the presiding officer of the new Scottish parliament should be a person with a reputation for independence and one who has the ability to command authority. To have his or her rulings challenged in this way would cause uncertainty and delay and should be avoided.
Lord Mackie of Benshie: Perhaps I may quickly read Clause 31. It states:
- "Standing orders shall, subject to subsection (2), ensure that a Bill is not introduced in the Parliament if the Presiding Officer decides that the Bill or any provision of the Bill would not be within the legislative competence of the Parliament".
Presumably the presiding officer has the benefit of advice from lawyers and would decide properly. The amendments propose extra nannying measures and there are plenty of those on the face of the Bill right now.
Lord Hamilton of Dalzell: The thought passes through my mind that part of the legislative process is the manifesto. What will happen when legislation comes forward as a result of a manifesto commitment and is not found to be within the competence of the parliament?
The Lord Advocate (Lord Hardie): In relation to Amendments Nos. 231 and 233, it appears that the noble and learned Lord, Lord Mackay of Drumadoon, and other Members of the Committee who spoke in support of him--particularly the noble Lord, Lord Gray of Contin--are trying to create an opportunity for the Westminster Parliament to become involved in the
legislative process of the Scottish parliament. They seek to impose a duty on responsible Scottish ministers to send to both Houses of the United Kingdom Parliament a copy of any Bill which is to be introduced into the Scottish parliament.It is not clear how either House of Parliament would consider a draft Bill before it was even introduced into the Scottish parliament. The second amendment gives the United Kingdom Parliament the chance to make representations to the presiding officer about the legislative competence of the Scottish parliament's proceedings on a particular piece of legislation, with a view to persuading the presiding officer not to introduce the Bill. The second amendment puts in the words, after "decides":
- "either at his own hand"--
so the presiding officer can make up his own mind--
- "or following representations from either House of Parliament".
I agree wholeheartedly with the noble and learned Lord, Lord Mackay of Drumadoon. It is essential that there should be good relations between the Scottish parliament and the Westminster Parliament at official, ministerial and executive levels, and, one hopes, at member level. As the noble and learned Lord pointed out, the civil servants who will service the Scottish executive and the Scottish parliament are part of the United Kingdom Civil Service. It is inconceivable that there will not be good relations at official level between the civil servants of Scotland and the civil servants serving the United Kingdom Parliament. It is envisaged that there will be an interchange; and that civil servants will move between one jurisdiction and the other to maintain co-operation and understanding between them. I am confident that at their level Ministers will keep each other advised of what is happening and what they are proposing.
I have no doubt that there will be informal arrangements to allow Bills to be considered. Equally, if the Scottish parliament wished to provide copies of its Bills to the United Kingdom Parliament on a formal basis that would undoubtedly be within its competence and would happen. I anticipate, whatever the politicians may decide, that civil servants will make Bills available to their counterparts on an informal basis, as they are drafted, and explain what is happening north of the Border so that civil servants south of the Border can consider what is being proposed.
Lord Torphichen: If a civil servant gives away the contents of a Bill a little too soon, that is a leak. There is a fine line between keeping people informed and going through the normal channels of providing information. It is a very difficult area.
4.15 p.m.
Lord Hardie: I do not accept that it is a difficult area. If we have got to the stage of a Bill having been prepared with a view to its being introduced, there is no question of it being seen as a leak to provide a copy of the Bill to civil servants in London for their consideration and any input that they wish to make from their own departments.
From my comments so far the Committee will not be surprised to hear that we do not accept these amendments. We share the views of the noble Lord, Lord Steel of Aikwood. We are apprehensive that by allowing these amendments there would be accusations, albeit unjustified, that the United Kingdom Parliament was trying to interfere in the internal workings of the Scottish parliament. As the noble Lord, Lord Renton, said, the position of the presiding officer or Speaker is a special one. All parliaments are sensitive about the independence of their Speaker or presiding officer, whatever you wish to call him or her. The Scottish parliament will be no different. It will be jealous about the independence and the position of its presiding officer.
These amendments could well be presented as giving an opportunity to the United Kingdom Parliament to exercise undue influence over the presiding officer. I am sure that that is not the intention of the noble and learned Lord but that may well be how it is viewed by others. We must allow the Scottish parliament to enact its legislation without interference by the United Kingdom Parliament. It would not be appropriate for Westminster to have a role in formally commenting on the vires of a Bill before it is introduced or considered by the Scottish parliament. It will be for the Scottish parliament to give careful scrutiny to any Bill. Members of this House and another place should not attempt to prejudge the outcome of the deliberations of the Scottish parliament.
The Bill already provides a scheme for the resolution of disputes about the competence of Scottish legislation. Once the Bill has been passed by the parliament the Lord Advocate and Law Officers of the United Kingdom Government can refer questions about the competence of an Act to the Judicial Committee of the Privy Council.
The noble and learned Lord raised the question of who will challenge a decision of the presiding officer. That is provided for in subsection (2) of Clause 31. It states specifically:
- "Standing orders may provide for the Parliament to overrule any decision of the Presiding Officer".
So the parliament can challenge the decisions of the presiding officer. We will come to that in the next set of amendments. That is one way of challenging such a decision.
As to judicial review, I find it difficult to envisage who would have a title to challenge the presiding officer. In any event, as I indicated to the noble and learned Lord, Lord Hope of Craighead, on a previous occasion, the whole question will be considered.
If the Law Officers take the matter to the Judicial Committee of the Privy Council the Bill cannot be submitted for Royal Assent. Even if it gets through that and becomes law there is another provision. Clause 91 and Schedule 6 enable the Law Officers of the United Kingdom and of the Scottish executive to challenge an Act of the Scottish parliament as being outwith its competence.
I hope we all agree that after devolution it will be important for the parliaments to keep in touch with each other. Legislative provisions which could be presented
as this Parliament interfering in the legislative process in Scotland, or interfering in the independence of the presiding officer, should not be accepted. They are not required or desirable. I hope the noble and learned Lord will withdraw the amendment.
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