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Lord Rodger of Earlsferry: Perhaps the noble and learned Lord the Lord Advocate will consider one other matter. I should have raised it had I been present during discussion on Clause 28(8). It arises also in relation to Clauses 30 to 32. Subsection (8) of Clause 28 gives a direction as to how,

and it is to be read,

    "so far as possible, so as to be within the legislative competence of the Parliament".

Therefore I presume that if there were proceedings in relation to an Act, that is the way it would be read.

If, however, one were the lonely presiding officer, or the accompanied members of the judicial committee of the Privy Council, acting under Clause 32, in that situation would one read the provisions in such a way, if possible, so as to be within the legislative competence

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of the parliament; or would one, since there is ample time to put the matter right if it is outside the competence, not use that presumption? In other words, at the pre-legislative stage would one use a different test from that which would be used in terms of Clause 28(8)? Perhaps the noble and learned Lord the Lord Advocate will respond to that matter during the course of our debates this evening.

Lord Hardie: I may be able to deal with the point now. The noble and learned Lord has far greater experience and expertise in statutory interpretation than I. However, I should have thought that the reference in Clause 28(8) to an Act would refer to an Act that has passed through all its stages, including Royal Assent; whereas when it comes to scrutiny under Clause 32, one is looking at a Bill. The question before the judicial committee is whether a particular provision of a Bill, or the Bill as a whole, is within the competence of the parliament. I should not have thought that those arguing for legality could rely upon Clause 28(8). The whole question would be whether this provision would apply. If I am wrong, I am sure that the noble and learned Lord will correct me.

Lord Mackay of Drumadoon: Anyone who doubted that lawyers might make some money out of devolution will have had those doubts dispelled by the discussion of the last half-an-hour.

I was interested to hear the remarks of the noble and learned Lord about the fact that, as a Law Officer, he would be able to obtain all the information he required from his political colleagues. Looking round the Chamber as he uttered those words, I did not feel that they struck an overwhelming chord with his three predecessors who are present. However, I am sure that he will pay attention to the points raised by the noble and learned Lord, Lord Hope. What is clear is that, if references to the judicial committee take place at a pre-legislative stage, speed in determining a matter is of the essence.

I do not intend to press these amendments to a Division. However, I invite the Government to think again as to the politics of allowing the Attorney-General to intervene at this stage. I can readily accept that some questions of English law might arise; but if those have to be debated before the judicial committee, it would be perfectly possible for the Advocate General, if he were appearing, to be accompanied by a lawyer qualified in the law of England if the Advocate General were not so qualified. The politics of allowing the Attorney-General to intervene at this stage might go down very badly in Scotland. As he will be a member of the same government as the Advocate General, I hope that it might be possible to restrict the right to the Advocate General.

I am interested to hear the noble and learned Lord's remark about the role of the law officers acting independently of their executive bodies, albeit having advised them in advance as to what they propose to do. I shall reflect carefully on that matter over the Recess.

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Finally, to take up another point made by the noble and learned Lord, Lord Hope of Craighead, about information, I invite the Government to consider whether a provision such as Clause 93(4) or paragraph 5 of Schedule 6 might be written into the procedure at this stage to ensure that the appropriate contradictor has information given to him so that the judicial committee has the benefit of a full debate on the legal issues that arise. I seek leave to withdraw Amendment No. 235.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 236:

Page 16, line 10, leave out ("Standing orders shall ensure that,").

The noble and learned Lord said: Amendments Nos. 236 and 237 are small drafting amendments. They seek to amend Clause 31 to delete the reference to standing orders in subsection (5). If the judicial committee has decided that a Bill or any provision of a Bill is not within the legislative competence of the parliament, that should be the end of the matter. It should be on the face of the Bill that the presiding officer shall not submit a Bill before Royal Assent. I beg to move.

Baroness Ramsay of Cartvale: As the noble and learned Lord, Lord Mackay of Drumadoon, indicated, Amendments Nos. 236 and 237 would prescribe on the face of the Scotland Bill, that the presiding officer must not submit for Royal Assent a Bill, in its unamended form, if the Judicial Committee of the Privy Council decides that the Bill or a provision of it would be outwith the legislative competence of the parliament. As currently drafted, the Scotland Bill provides that standing orders must make the detailed provision to ensure that this does not happen.

I agree with the noble Lord that it is important that in such cases unamended Bills are not submitted for Royal Assent. However, I believe that the Bill in front of us already makes appropriate provision for this. It essentially places a duty on the parliament to provide in its standing orders for the procedures under which the presiding officer may and may not submit Bills for Royal Assent. These procedures must include procedures to prevent a Bill being submitted if the circumstances in Clause 31(5) apply.

I also accept that the end result of the noble Lord's amendments is likely to be the same as what is provided for in the Bill. But how we achieve that end is important. As I have indicated, the detailed procedures about the submission of Bills for Royal Assent will, quite rightly, be set out in standing orders, not on the face of the Bill. It will also be necessary in these procedures to build in the safeguards to ensure that Bills which have been declared to be ultra vires do not go forward unless they are amended. Clause 31(5) ensures that that will be done. I therefore believe the approach chosen by the Government is the correct one.

As I have explained on other occasions, we believe that it is important and indeed necessary that detailed matters concerning legislative proceedings in the parliament should be a matter for the Scottish parliament. That is why the Bill provides for this matter

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to be dealt with through standing orders. It is consistent with the approach we have followed throughout this particular clause, which prescribes the framework within which standing orders will cover detailed procedures dealing with the presiding officer's duties in scrutinising Bills and in submitting Bills for Royal Assent, as well as being consistent, with the general approach we have taken throughout the Bill.

I therefore invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon: The sweetness of the noble Baroness's smile becomes greater, but her generosity remains at a fairly low level. This is not a matter which I intend to press, but it brings to mind a question which I asked some days ago and to which I still await a reply. What happens if the standing orders passed by the parliament do not comply with the provisions of the Bill? Who has the right to challenge it? No doubt I shall receive a reply to the question over the Recess and, if necessary, we can return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 237 not moved.]

Clause 31, as amended, agreed to.

Clause 32 [Scrutiny of Bills by the Judicial Committee]:

[Amendments Nos. 238 to 241 not moved.]

Clause 32 agreed to.

[Amendment No. 242 not moved.]

6.15 p.m.

Clause 33 [Power to intervene in certain cases]:

Lord Sewel moved Amendment No. 243:

Page 16, line 34, after ("obligations") insert ("or the interests of defence or national security").

The noble Lord said: I am speaking to Amendments Nos. 243 to 247 and 262 to 267. The purpose of these amendments is to ensure that there are adequate safeguards for those matters which the White Paper intended should be reserved. I spoke to related amendments to Clause 28 and Schedule 4--I am advised that it was last Tuesday, but it is all rather a fog at the moment.

While for the Scottish parliament to have a workable legislative competence, its legislation for devolved purposes needs to be able to have ancillary effects upon reserved matters, the Government recognise that there need to be safeguards in cases where Acts of the Scottish parliament could have adverse effects on the law as it applies to reserved matters. For example, legislation about housing or local taxation could possibly have an impact on the operation of social security legislation. Clause 33 therefore empowers the Secretary of State, by order, to prevent a Scottish Bill from being submitted for Royal Assent in certain circumstances. Clause 54(4) provides a complementary power to revoke subordinate legislation. Under Amendments Nos. 243 to 247 these powers would be available to a Secretary of State if the Bill contains

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provisions which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters. The change from the current wording in the Bill is necessary to take account, first, of the amendments to the tests of legislative competence in Clause 28 and, secondly, of possible adverse effects on the operation of any aspect of the law, whether statute law or the common law, as it applies to reserved matters.

Clauses 33 and 54(4) also enable the Secretary of State to intervene to ensure that the United Kingdom's international obligations are met. Amendments Nos. 243 and 263 provide for the interests of defence and national security to be treated on a similar basis. These powers would be available, for instance, where the Secretary of State considered on reasonable grounds that a Scottish Bill dealing with planning which affected defence establishments would be incompatible with the interests of defence or national security.

Amendment No. 247 would enable the Secretary of State to use his power of intervention in a four-week period after a decision by the Judicial Committee of the Privy Council that a Scottish Bill was intra vires. Without this amendment, the Secretary of State would have to use his power of intervention before the vires of a Scottish Bill had been established.

These powers of intervention are of course meant to be long stops. Their use would require to be justified and would be liable to be scrutinised by judicial review. The amendments establish a series of tests which limit the extent to which legislation by the Scottish parliament can affect reserved matters. But the powers of intervention provide essential balance to ensure that there is a sensible outcome in relation to reserved matters. Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used. But there should be no doubt that this Government will be willing to use the powers of intervention if it became necessary.

We have also taken the opportunity to make a number of clarificatory amendments to Clause 54. Amendments Nos. 262, 265 and 267 correct the wording of Clause 54 by making it clear that the Secretary of State's power to revoke subordinate legislation applies to existing legislation and that the requirement for the Secretary of State to state his reasons for making orders under that clause applies to orders made under all subsections, not just that under the power to revoke subordinate legislation.

I hope that this explanation of the amendments has been helpful. I beg to move.

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