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The Chairman of Committees (Lord Boston of Faversham): My Lords, we now come to Amendment No. 101A, as an amendment to Amendment No. 101. I must point out to the House that if Amendment No. 101A is agreed to, I cannot call Amendment No. 102.

Lord Mackay of Drumadoon moved, as an amendment to Amendment No. 101, Amendment No. 101A:

Line 10, leave out from ("which") to end of line 11 and insert ("relate to the exercise of the functions of the Scottish Administration").

The noble and learned Lord said: My Lords, in moving Amendment No. 101A, I shall, of course, deal with all the amendments which the noble and learned Lord the Lord Advocate has just discussed. I am sure that the whole House will be grateful to him for having explained why this raft of amendments is required. It illustrates yet again the value of an important and complex Bill being considered over a period of months in two separate Chambers. I may be wrong, but I think that some of the amendments that we are considering today seek to amend amendments that were made to the Bill in Committee. It is clear that serious further thought has been given by the Government to the drafting of the Bill. That is to be welcomed because of the importance of this matter for Scotland and, indeed, the whole of the United Kingdom.

I shall read carefully in Hansard what the noble and learned Lord has just said, but in speaking to the amendments perhaps I may illustrate what I understand the position to be. Perhaps in reply the noble and learned Lord will then confirm whether or not I am correct. Amendment No. 101A seeks to delete the words concerning any subject for which any member of the Scottish executive has general responsibility. My

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understanding is that the phrase which currently appears in the government amendments is of wider scope than the executive competence, as defined in Clauses 48 to 50 and anything that may be covered by a Section 59 order under Clause 59. Those clauses set out the ministerial functions of Scottish ministers. Some are derived from Clause 49, which is a general transfer of functions; others will derive from other clauses; and yet others will derive from any order made under Clause 59. We have a draft of such an Order in Council available for consideration. As I understand it, the noble and learned Lord the Lord Advocate said that this term is meant to be broader than that. I should be grateful if he would elaborate, by way of example, what he has in mind.

Another of my amendments seeks to delete the word "general". I have some difficulty in knowing the difference between a member of the Scottish executive having "responsibility" for a subject as opposed to "general responsibility" for a subject. The noble and learned Lord the Lord Advocate said that it might give rise to unnecessary dispute if the word is taken out. I venture to suggest that if the word remains in there might also be scope for disputes. It would be extremely helpful if that could be clarified before I decide whether or not to press Amendment No. 101A.

Moving on, I am grateful for the further consideration that has been given to Amendment No. 103A, and I will obviously not insist on that.

I remain concerned about the effects of the new subsection (1C) and (1B), to which Amendments Nos. 103 and 103E are directed. If a Minister of the Crown is to be summonable in certain circumstances, the distinctions which are set out in these two new subsections are somewhat artificial and may give rise to a measure of dispute.

I have no difficulty with Amendments Nos. 110 and 118, and the other amendment to which I have spoken, and I am content that they should be added to the Bill at this stage. I beg to move.

3.30 p.m.

Baroness Carnegy of Lour: My Lords, when the noble and learned Lord replies I should be grateful if he could tell the House exactly how the use of the word "general" will clarify the functions to which the clause refers. This will be very important. It will be a question of whether a request is valid or not. The meaning is crucial. Will the noble and learned Lord attempt to tell us where "general responsibility" begins and ends and what it actually means? It is very important.

It is quite difficult to follow the government amendments. Perhaps on another occasion it might be possible to remove a larger part of the Bill and put the re-written part in as a whole amendment. It would be easier for a lay person like myself to follow what is happening. As I understand it, the clause is being rewritten in two clauses. It is difficult to follow how it is done. I ask that as a subsidiary question, but the noble and learned Lord might take it on board for the sake of

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those of us who have some difficulty in following detailed, technical amendments. My specific question is about the word "general".

The Earl of Mar and Kellie: My Lords, these government amendments remove a chunk of the Bill and replace it with, I believe, words of greater clarity. The power to call for witnesses and documents has to be mentioned in this Bill because of the statutory nature of the parliament. Obviously the Parliament at Westminster has these powers, but they are not written down for well-known reasons. The replacement words in the amendments are clearer and are in more readable English. These powers are important to the work and ability of the Scottish parliament.

As to Amendment No. 110, it is a useful amendment which attempts to clarify the meaning of the clause. I approve of that, particularly as the Bill is specifying how an offence may be committed. Absolute clarity should be attempted in such circumstances. The court will find this helpful, particularly as such a prosecution might have a political context. Such a quasi-political trial will attract attention and it will therefore be helpful if the subjects specified in the notice are very clear and all encompassing. It will be important that the accused should have acted deliberately and not by accident. It would be disastrous if the first prosecutions under this clause were to founder on points of legal definition. These government amendments can be supported.

Lord Fraser of Carmyllie: My Lords, I support my noble friend Lady Carnegy in seeking further elucidation of what is meant by "general responsibility". I have in mind the issue of agriculture. I should have thought that the individual citizen in Scotland would believe that agriculture would fall within the remit of this Scottish parliament. However, as the noble Lord, Lord Sewel, indicated to us in a very interesting speech at Committee stage, the whole matter of agriculture as it is affected by the common agricultural policy is not to be within the purview of the Scottish parliament but is to fall within that reservation described as "foreign affairs".

I am confused. If agriculture is generally within the responsibility of the Scottish parliament, is this a route whereby it would become open to members of the Scottish parliament to make inquiries about matters relating to the common agricultural policy? As I understood the noble Lord's explanation at Committee stage, that would not properly be for the Scottish parliament but for Scottish MPs to pursue here in the Westminster Parliament.

Lord Renton: My Lords, I should like briefly to follow up the point made by my noble friend Lady Carnegy of Lour, who referred to the complicated situation created by the government amendments. I sympathise with my noble friends on the Front Bench who say that they have to make amendments to those amendments. That makes the matter even more complicated. It would have been so much better on this occasion to ask your Lordships to approve leaving out Clause 23 and substituting a completely redrafted new

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clause. Rather than pursue these detailed matters now, it might be very much better if the noble and learned Lord the Lord Advocate would agree to do that. It would simplify matters and, at the next stage, we could have a much more rational consideration of the whole matter.

The Earl of Balfour: My Lords, I wish to raise one point on Amendment No. 109, in which Clause 23 is divided into two parts. I am perfectly happy with subsections (8) and (9) going into another clause. Under subsection (8), a requirement under the section "Power to call for witnesses and documents" is imposed on the Clerk to give the person in question notice in writing. That is fair enough. Subsection (9) states how that notice should be sent--by registered post, and so on. But subsection (10) still deals with that person, stating:

    "A person is not obliged under this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in proceedings in a court in Scotland".
That belongs to subsections (8) and (9) and not in the other part of the clause. When I looked at this rather complicated group of amendments, I felt that subsection (10) should be in what will turn out to be the smaller of the two clauses.

Lord Hardie: My Lords, the point raised by the noble Earl, Lord Balfour, is clearly a drafting issue which we could certainly consider and, if necessary, rearrange for Third Reading. Having said that, I am not giving a guarantee that that would be the outcome of such consideration.

I understand the concern of the noble Baroness, Lady Carnegy of Lour, and the noble Lord, Lord Renton, about the way in which the amendments have been brought forward. I can only apologise if that has caused inconvenience to the House. Certainly, it is a matter which we can consider at any future stage should we be in a similar position with another Bill. The noble Lord, Lord Renton, proposes that we withdraw the amendments and come back with them at Third Reading. I have given brief consideration to that matter but, on reflection, I think it preferable to proceed with the amendments at this stage. By the time we reach Third Reading noble Lords will have had time to reflect on the amendments. If there are drafting issues, or issues which are appropriate for Third Reading, that might be the way to proceed.

The noble and learned Lord, Lord Mackay of Drumadoon, the noble Baroness, Lady Carnegy of Lour, and the noble and learned Lord, Lord Fraser of Carmyllie, asked about the general responsibilities. In my initial outline of the amendments I sought to explain that we were anxious to ensure that the parliament was not unduly restricted in matters which it could consider in this way. I used the example of health. I specifically sought examples because it is often helpful to point to an example. I considered health quite a good example illustrating how the responsibility of the parliament might well be very restricted in connection with making appointments to certain bodies and the bodies themselves carrying out the delivery of the services. In that situation we think it appropriate that the parliament should be able to address health issues and not confine itself only to appointments to boards, trusts and so on. That is the reasoning behind the use of a general approach.

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I understand the point made by the noble and learned Lord, Lord Mackay of Drumadoon, that by putting in the word "general" there may be disputes as to whether a matter comes within the general responsibility. That may be an easier question to answer. The present wording will give effect to the intention of the Bill in allowing the parliament to deal with matters which have been devolved. That is preferable to having a far too restrictive definition which would deny the parliament the opportunity to deal with such matters.

Perhaps I may move on to the point made by the noble and learned Lord, Lord Fraser of Carmyllie. Agriculture is devolved, so that would be a general responsibility of the parliament. It could request Scottish ministers to come before it and speak about the common agricultural policy. But the common agricultural policy is a matter for the United Kingdom Parliament. However, having said that, I certainly expect that the Scottish executive would make representations to the United Kingdom Parliament. It would be appropriate for the Scottish parliament to be able to ask Scottish ministers about their position on the common agricultural policy. Of course, the parliament could not refuse to implement the common agricultural policy, but it is clearly a matter which it could debate.

With those explanations, I hope I have assisted noble Lords to understand what we are about in this clause.

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