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The Earl of Balfour: My Lords, before the Minister replies, perhaps I may say that I feel from what has been said that we must protect the Scottish parliament from being challenged over any question in court. That is where I feel that this is a necessary amendment and am extremely glad that it was tabled.
Lord Hardie: My Lords, we do not consider the amendment to be necessary. As the noble Lord, Lord Selkirk of Douglas, pointed out, the effect of the amendment would be to put into the Bill a provision to allow the record of proceedings to be relied upon by the courts in a Pepper v. Hart-type situation where there is ambiguity in the legislation.
Perhaps I may deal with the point raised by the noble and learned Lord, Lord Mackay of Drumadoon. The position would be that the Scottish parliament could not legislate to have effect south of the Border; it could not affect the English law. However, English courts may well wish to interpret Scottish legislation in certain situations and would apply the canons of construction that apply to the interpretation of legislation of the UK Parliament, including the application of Pepper v. Hart.
In relation to the Scottish courts, the position is as I stated on the last occasion when this was discussed, in July, when the noble and learned Lord, Lord Rodger of Earlsferry, raised this matter. The noble and learned Lord, Lord Mackay of Drumadoon, referred to the passage in Hansard where I set out the position. My position quite clearly is that, in the absence of any legislation by the Scottish parliament affecting interpretation of Scottish legislation, the Scottish courts would follow the canons of construction and would apply the principles of Pepper v. Hart in appropriate cases. Of course the Scottish parliament could legislate to indicate that that was to be excluded in the interpretation of the legislation by the Scottish courts, but that would be entirely a matter for the parliament, just as this Parliament could legislate to change the rules in relation to Pepper v. Hart.
Essentially, what I am saying is that the question of construction of statutes is for the appropriate courts. They would apply the canons of construction with which they are familiar unless they were changed by legislation--either by the UK Parliament in relation to UK legislation or by the Scottish parliament in relation to Scottish legislation. But any interpretation Act of the Scottish parliament could only have effect in relation to Scottish courts. I trust that, with that explanation, the noble Lord will feel able to withdraw his amendment.
11.15 p.m.
Lord Selkirk of Douglas: My Lords, I am puzzled that the Lord Advocate does not feel able to clarify the law in this connection as it appears that he agrees with the principles laid down in Pepper v. Hart for the rest of the United Kingdom--certainly for England--and I do not see what objection there can be to clarifying this point in legislation. A Scots parliament could obviously change the law in the future in this connection if it so wished, and I do not see what objection in principle the Lord Advocate can have. If my noble friend agrees, perhaps we can return to this on Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 [Standing orders--further provision]:
Baroness Ramsay of Cartvale moved Amendment No. 89:
Page 64, line 22, leave out from ("proceedings") to end of line 23 and insert--
. The standing orders may include provision for withdrawing from a member of the Parliament his rights and privileges as a member.").
The noble Baroness said: My Lords, I should like to explain the general principle behind Amendments Nos.
As I explained when we last debated this schedule in Committee, the Government want to ensure that the parliament puts in place a framework to regulate members' interests. I am sure that the electorate would expect no less. The White Paper made it clear that there would be "minimum requirements" in respect of, among other things, rules about members' pecuniary interests.
These amendments ensure that the parliament is under a basic duty to make provision for the regulation of its members' interests. The parliament will have to make provision for a register of interests that is published and publicly available and for its members to register their financial interests and to declare such interests before taking part in any proceedings of the parliament relating to that matter. The parliament will also be required to make provision prohibiting paid advocacy. These provisions are intended to ensure that all MSPs work in a properly regulated framework which ensures propriety in the conduct of the parliament's business.
Previously, the parliament was to be required to make provision for this in its standing orders. We have been looking carefully at this provision and considered that this could restrict the parliament in what it was able to do; for example, the parliament may want to make provision about a code of conduct for MSPs. This could go beyond what MSPs did in the proceedings of the parliament. That would be outwith the scope of standing orders. These amendments give the parliament the flexibility to address such situations.
Moreover, when this House last considered this schedule, a number of noble and learned Lords expressed concern that provisions relating to criminal offences would be defined in standing orders rather than in legislation. These amendments address that concern. They provide that the parliament must make provision by, or under, an Act of the Scottish Parliament (ASP). That is not to say that standing orders cannot be used at all in the context of provisions about members' interests. It is anticipated that the core provisions would be in the ASP or subordinate legislation under it. But there is no reason why certain procedural matters for example could not be left to standing orders.
We believe that these amendments will assist the parliament in developing a robust and rigorous approach to such matters and I urge noble Lords to support them. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, the noble Baroness will be pleased and probably slightly grateful to hear that we welcome these amendments. They take into account some of the problems raised in
The Deputy Speaker (Lord Cocks of Hartcliffe): My Lords, you will recall that Amendment No. 90 has already been spoken to. With the leave of the House, I shall put Amendments Nos. 89 to 100 en bloc.
Lord Steel of Aikwood: My Lords, before that is done, perhaps I may put one small point on Amendment No. 90. As it refers to the presiding officer, I would like to add one sentence to what I said before about the situation in Northern Ireland because I should have added that the provision that I quoted--I hope that the noble Baroness is listening to me--is a direct lift from the standing orders of the 1973 Northern Ireland Assembly. In addition, I am told that the Minister of State, in the course of official consultations, has confirmed that the term "presiding officer" is a legal one and that it is entirely a matter for the assembly to determine what the presiding officer is actually called. Although I agree that we should pass Amendment No. 90, we cannot leave a situation where the Welsh assembly and the Northern Ireland Assembly can call the person who presides over them whatever they like while the Scottish parliament must do what it is told by this place. That is not a tenable position and it must be put right before we go further with the Bill.
On Question, amendment agreed to.
Baroness Ramsay of Cartvale moved Amendment No. 90:
On Question, amendment agreed to.
Clause 22 [Members' interests]:
Baroness Ramsay of Cartvale moved Amendments Nos. 91 to 100:
On Question, amendments agreed to.
Page 64, line 34, at end insert--
("The Presiding Officer and deputies
. The standing orders shall include provision for ensuring that the Presiding Officer and deputies do not all represent the same political party.").
Page 10, line 25, leave out from beginning to ("in") in line 35 and insert--
("(1) Provision shall be made for a register of interests of members of the Parliament and for the register to be published and made available for public inspection.
(2) Provision shall be made--
(a) requiring members of the Parliament to register in that register financial interests (including benefits in kind), as defined for the purposes of this paragraph,
(b) requiring that any member of the Parliament who has a financial interest (including benefits in kind), as defined for the purposes of this paragraph,").
Page 10, line 38, leave out from beginning to ("for") in line 39 and insert ("Provision made in pursuance of subsection (2) shall include any provision which the Parliament considers appropriate").
Page 10, line 40, leave out from ("with") to second ("in") in line 41 and insert ("an interest defined for the purposes of subsection (2)(a) or (b)").
Page 10, line 43, leave out ("Standing orders shall include provision") and insert ("Provision shall be made").
Page 11, line 3, leave out ("standing orders") and insert ("provision").
Page 11, line 8, leave out ("Standing orders may include provision") and insert ("Provision made in pursuance of subsections (2) to (4) shall include any provision which the Parliament considers appropriate").
Page 11, line 10, leave out from ("of") to end of line 11 and insert ("those subsections").
Page 11, line 15, leave out ("subsections (1) to") and insert ("subsection (2) or").
Page 11, line 20, after ("section,") insert--
("(a) "provision" means provision made by or under an Act of the Scottish Parliament, and
(b)").
Transpose Clause 22 to after Clause 36.
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