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Lord Sewel: I thank the noble and learned Lord for explaining very clearly his point. Matters of cross-border authorities, particularly where they are dealing with devolved matters and reserved matters--as could well be the case with cross-border authorities--are always extremely complicated. It is useful to take as an illustration the Forestry Commission wherein a cross-border public authority, through its activities in Scotland, will be accountable to the Scottish parliament. For its activities in Wales it will be accountable to the Welsh assembly, and for its activities in England it will be accountable to Westminster.
The difficulty is that the amendment as proposed would entitle the parliament to require a cross-border public authority to give evidence and produce documents in respect of any functions exercisable in or as regards Scotland. The important words are "any functions". That would include reserved as well as devolved matters. Clearly it would be inappropriate, in relation to reserved matters, for the cross-border public authority to be required to give evidence and produce documents to the Scottish parliament. That is the point where there is either a difference of understanding between us or we disagree.
Where a cross-border public authority is exercising devolved matters concerning Scotland or other matters in relation to which functions are exercisable by Scottish Ministers--the noble and learned Lord made the point about executive devolution and the exercise of executive functions marching ahead of legislative devolution--then it is quite proper that the cross-border public authority should provide evidence and produce documents to the Scottish parliament. But it is not proper that a cross-border public authority should produce documents and provide evidence in relation to the reserved matters that it may be carrying out in Scotland.
Lord Mackay of Drumadoon: I hope that the Minister will be prepared to reflect further. I am sure he will. There seem to me to be three situations. One is that the cross-border public authority is dealing with devolved matters. If it is, it clearly can be required to produce witnesses and documentary evidence under Clause 23(2)(a).
If it is dealing with reserved matters which also happen to be matters in relation to which functions are exercisable by Scottish Ministers, then again it could be required to produce witnesses and documents, so we have a breach of the principle that the Minister referred to that it is inappropriate for it to be accountable in relation to reserved matters. Under Clause 23(2)(b) the authority will be accountable in relation to reserved
matters, but only if they are also covered by a Clause 59 order. We have a third situation where there are truly reserved matters which are not covered by Clause 59.It may well be that in the course of an investigation a committee of the Scottish parliament is carrying out there is a wish to examine the operations of a cross-border public authority touching on all aspects of its work such as devolved and reserved matters covered by Clause 23(2)(b) and others which are not. In relation to the first two of these categories it would have the right to cite the witness to give evidence.
The question arises that if having done that the questioner strays into the third category, the witness can say that he or she is not going to answer because they were not invited to come but were ordered to do so. That would be very undesirable. This matter merits further consideration as to whether it is desirable to have the right to order a witness to appear to answer certain questions but not others even though they are, in layman's terms, relevant to the work of the Scottish parliament, and equally in relation to documents.
I do not intend to insist on this amendment tonight, but I suggest further consideration in the light of what we now understand to be the potential cross-border public authorities, some of which are very important bodies indeed and others possibly less so except to people who have a great interest in plant varieties and the unrelated live transplant regulatory authority, which is of interest to medics but not to a large number of other people.
There are groups of authorities which include very important bodies. Before Report we ask the Minister to consider whether some extension to Clause 23 might be appropriate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ramsay of Cartvale moved Amendment No. 290H:
The noble Baroness said: Amendments Nos. 290H, 290L and 290M are technical amendments aimed at ensuring that the powers under Clauses 83 and 84 can make appropriate provision to ensure that cross-border public authorities are properly dealt with on devolution.
Government Amendments Nos. 290H and 290N make it clear that a Clause 84 order can modify the application of Clause 83(1) in relation to the authority which is the subject of that order. This means, for example, that the Order in Council could apply Clause 49 in relation to certain ministerial functions in relation to the authority so that those functions would transfer to the Scottish Ministers.
Government Amendment No. 290L simply makes it clear that an order made under this clause may make provision in respect of any individual function of an authority. At present it could be read as an enabling provision to be made only in respect of all the functions of an authority, and that would be too restrictive and is not what was meant.
Government Amendment No. 290M introduces a new subparagraph in Clause 84(2) to make it clear that new functions can be conferred by the clause. This might be
The provisions of Clause 84 are necessary to accommodate the wide range of arrangements which may be appropriate for individual cross-border public authorities to enable them to continue to operate effectively after devolution. There are, of course, significant and appropriate safeguards upon the use of these powers. The authorities subject to a Clause 84 order must be consulted prior to an order being made and the order is subject to procedure in both parliaments. Together these requirements provide considerable scope for scrutiny.
I hope that the Committee will welcome this series of amendments as bringing clarification to the scope of the powers under this clause. I beg to move.
On Question, amendment agreed to.
[Amendment No. 290J had been withdrawn from the Marshalled List.]
[Amendment No. 290K not moved.]
Clause 84 [Power to adapt etc. cross-border public authorities]:
Lord Sewel moved Amendments Nos. 290L to 290N:
On Question, amendments agreed to.
Lord Selkirk of Douglas moved Amendment No. 291.
Page 40, line 1, leave out ("(2) and") and insert ("(1) to").
Midnight
Page 40, line 17, leave out ("the functions") and insert ("any function").
Page 40, line 18, at end insert--
("( ) conferring any function on a cross-border public authority or on a Minister of the Crown or the Scottish Ministers in relation to such an authority,").
Page 40, line 21, leave out (" 83(2)") and insert (" 83(1), (2)").
Before Clause 86, insert the following new clause--
(" .--(1) There shall be a Register of Concordats where each concordat shall be registered.
(2) The Register shall be held by--
(a) the Public Record Office; and
(b) the Keeper of the Records of Scotland.
(3) A concordat shall not be effective unless it is registered under subsection (1) above within two weeks of its execution.
(4) A concordat shall be capable of being challenged by court action only before--
(a) the High Court in England and Wales; or
(b) the Court of Session in Scotland.
(5) Any party having an interest may challenge a concordat.
(6) In this section "concordat" means any agreement between the Secretary of State and the Scottish Executive regarding the consultation arrangements and common United Kingdom guidelines in respect of--
(a) any reserved matter under Schedule 5;
(b) any devolved matter under section 29(4);
(c) any transfer of ministerial functions under section 49;
(d) any functions exercisable with agreement under section 51;
(e) any shared power under section 52;
(f) any cross-border public authority under section 83, 84 or 85; or
(g) any agency arrangements under section 87.").
The noble Lord said: Amendment No. 291 creates a register of concordats. Concordats are referred to in various sections of the White Paper, for example, on forestry matters. Only a few moments ago the Minister made particular mention of forestry. The Lord Advocate has decided that there should be concordats in relation to scrutiny of Scots legislation by the Advocate General. Surely, those concordats should be known and in the public domain. The new clause seeks to do that. I look forward to hearing what the Minister or the Lord Advocate has to say in reply.
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