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Lord Fraser of Carmyllie: Before my noble and learned friend withdraws the amendment, I regard the Minister's intervention as the most important he has made during the course of this Committee stage. It is extremely valuable. In view of his remarks, I shall not press him further. However, before we reach this matter on Report I hope that we shall have an opportunity in advance to reflect for as long as possible on what changes the Government may be introducing.

Lord Sewel: Perhaps I may make an offer of consultations and discussions on this point because I recognise its importance.

Lord Mackay of Drumadoon: I greatly welcome that further intervention. I join with what my noble and learned friend Lord Fraser said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 292YFA to 292WFA not moved.]

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The Earl of Balfour moved Amendment No. 292FA:

Before Clause 95, insert the following new clause--


(" .--(1) The Parliament may cause an inquiry to be held into any matter relevant to the exercise of any of its functions.
(2) Section 210 of the Local Government (Scotland) Act 1973 (power to direct inquiries) shall apply in relation to an inquiry held under subsection (1) as if it were a local inquiry held under that section and the Parliament was the Minister causing it to be held.").

The noble Earl said: It seems a long time since we started dealing with the business on this Bill. I am not at all sure whether there are any facilities for the parliament of Scotland to enable inquiries to be held. This is one effort on my part to suggest how that may be done. I believe that the parliament should have that power. With those few words, I beg to move.

Lord Hardie: I accept the point made by the noble Earl that the Bill already enables the parliament to conduct its own inquiries under Clause 23 but, on the other hand, does not contain any explicit provision which would allow the establishment of separate inquiry bodies. It may be helpful if I remind the Committee that Ministers and Parliament rely on the Tribunals of Inquiry (Evidence) Act 1921 to set up inquiries such as the Cullen Inquiry. Those powers are tied closely to Westminster procedures and will not transfer to Scottish ministers. As a result, the noble Earl is correct to say that neither the Scottish executive nor the Scottish parliament will enjoy, from the beginning, the general powers to set up such inquiries whereas a different situation arises in Wales. The key difference between Wales and Scotland is that the Scottish parliament will be able to legislate, if it wishes, to give itself or the executive the power to establish inquiries either in general terms or in relation to a particular issue in respect of matters within the devolved competence.

While this amendment would give the parliament--but not the executive--immediate powers to establish inquiries, it would also tie such inquiries to the local government inquiries rules and procedures. By contrast the 1921 Act applies the rules of the Court of Session. We think on balance it is preferable to leave the parliament to make its own provision and to allow it a free hand to decide what rules of procedure it would wish any inquiry to follow. With that, I would invite the noble Earl to withdraw his amendment.

The Earl of Balfour: Perhaps I may ask just one more question. Can the Scottish parliament, assuming it is functioning, hold or arrange to hold through its procedures an inquiry into any specific matter it wishes or will it be limited in any way on a devolved issue?

Lord Hardie: The parliament could legislate to hold an inquiry for any particular issue within its devolved competence.

The Earl of Balfour: The noble and learned Lord, Lord Hardie, just said "legislate". That, I fear, will take some time. If something rather urgent came up and it was felt it would be of benefit to the parliament to have

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an inquiry, does it need to go to the extent of introducing a Bill to be able to do so? That seems to be rather restricting its powers, if I may say so.

Lord Hardie: What I am saying is that it could legislate generally to make provision for the holding of inquiries in appropriate cases. Thereafter there would be an administrative or executive decision, which may, of course, involve advising parliament.

The Earl of Balfour: That is now clear in my mind. I am relieved by those words and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 95 [Power to make provision consequential on Acts of the Scottish parliament]:

[Amendments Nos. 292FB and 292FBA not moved.]

Clause 95 agreed to.

Clause 96 [Power to make provision consequential on this Act]:

Lord Hardie moved Amendment No. 292FBB:

Page 45, line 6, leave out ("prerogative instrument or other") and insert ("or prerogative instrument or any other instrument or").

The noble and learned Lord said: This is a substantial set of government amendments relating to the powers in the Bill to make subordinate legislation.

In moving Amendment No. 292FBB, I shall speak also to Amendment No. 292YGA, 292GBAA, 292GBAB, 292GBAC, 292GBAD, 292GBAE, 292GBT, 292XNA and 292YNA.

I have already placed in the Library a copy of a letter to the Chairman of the Delegated Powers and Deregulation Committee which sets out in detail the purpose and effect of these amendments. I understand that some noble Lords may have concerns that that committee has not yet had the opportunity to consider the amendments. I am happy to give an undertaking that if any Member of the Committee has any comments or concerns, we will give them full consideration and bring forward any further amendments at Report if that is required.

The Delegated Powers and Deregulation Committee reported on the Bill in its 24th report and made a recommendation in respect of powers which modify primary legislation. The Government are happy to take this recommendation on board and our amendments provide that where subordinate legislation under the Bill contains provisions that textually amend an Act it must be subject to affirmative procedure.

The powers contained in the Bill are, as the committee recognised, necessarily complex, not least because they deal with not one but two Parliaments. However, we are conscious that the operation of Clauses 101 to 103 of the Bill has not been easy to understand. We have therefore looked to simplify the provisions where possible. In particular we have provided a table which lists which of the various types of procedure applies to a particular power.

8 Oct 1998 : Column 625

There have also been a number of changes to the subordinate legislation provisions in earlier parts of the Bill, and the amendments take account of these. There will be a few related amendments to earlier parts of the Bill, which we will bring forward at Report.

The net effect of all the amendments will be to replace the whole of Clauses 101 to 103 except for Clause 101(1) which is retained but which will then be followed by four new subsections. We are conscious that the replacement provisions are still, of necessity, somewhat complex, but we hope that they will prove easier to understand and follow.

I do not propose to describe the amendments at length, but would be happy to deal with any specific points which noble Lords may raise. I beg to move.

6.45 p.m.

Lord Mackay of Ardbrecknish: The noble and learned Lord the Lord Advocate has explained that these amendments in the Government's name significantly change that part of the Bill which deals with secondary legislation. There are a number of amendments in this group in my name but they all become nonsense because they relate to a part of the Bill which is now to be excised. Obviously I shall have to study the changes made as well as the change in the format.

I welcome the Lord Advocate's acceptance of the points made by the Delegated Powers and Deregulation Committee. I suspect that will cover some of the amendments that I have down in my name. I mentioned on Tuesday that I was not best pleased with the way this matter had been dealt with by the Government. The Government apologised for the misunderstanding. The letter to my noble friend Lord Alexander of Weedon suggested that these amendments would be tabled at Report stage. I was minded to make an enormous fuss but I have decided to be generous and allow the Government to proceed to table the amendments. We will see the result when we see the rewrite of the Bill. We can then study it perhaps with greater ease than we can at the moment and come back at Report stage with any issues that we still think need further consideration as regards secondary legislation. So I am prepared to accept these amendments at the moment. We will study them between now and Report.

Lord Renton: I am not sure whether I should make my point on the first amendment on this clause that the noble and learned Lord has moved or in the discussion on whether the clause shall stand part. We seem to be ducking discussions on clause stand part, so it might be convenient if I make the point now.

In lines five and six on page 45 we see the expression, "any pre-commencement enactment". That could have a wide meaning. It could go back to the Act of Union or possibly even earlier. I cannot believe that that is what the Government really intend. In applying their minds to the wording of Clause 96, I think that is a matter which should be thought out again. It just does not make sense at the moment.

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