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Lord Sewel: My Lords, noble Lords diagonally opposite tabled this amendment when Clause 27 was discussed in Committee and we have had much the same discussion as we had then. I remain unpersuaded by the arguments that I have heard. At the end of the day there is little between us in trying to describe the actual constitutional position and what the future arrangements are likely to be.

We believe that the Bill as a whole makes appropriate provision for sovereignty of the United Kingdom Parliament within the framework of devolution. That is the crux of it. We are implementing a constitutional

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arrangement which recognises--indeed has to recognise and rightly recognises--the sovereignty of the Parliament of the United Kingdom.

Lord Mackie of Benshie: My Lords, I thank the noble Lord for giving way. Is there any necessity to rub it in?

Lord Sewel: My Lords, it is not a matter of rubbing it in. I welcome the continuing sovereignty of the United Kingdom Parliament. However, in making such an arrangement it is important to capture in the Bill the essence of devolution as opposed to some other model, such as, perhaps, federalism. That is what subsection (7) does. In effect, it says that the United Kingdom Parliament retains all sovereignty, but it is invited to exercise that sovereignty in relation to devolved matters through conferring devolved competence on the Scottish parliament. Therefore, although, formally, the United Kingdom Parliament retains the ability to legislate on all matters, in practice it devolves the power to legislate other than on reserved matters to the Scottish parliament.

Clause 27 of the Bill makes it clear that the devolution of legislative competence to the Scottish parliament does not affect Westminster's ability to legislate for Scotland, even in relation to devolved matters. Indeed, as paragraph 4.4. of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in relation to Northern Ireland earlier in the century, we would expect the convention to be established that Westminster would not normally legislate with regard to matters within the competence of the Scottish parliament without the consent of that parliament. It may just be convenient from time to time.

Various noble Lords have expressed concern about who will be accountable for various policies and who will answer questions about them. It is outwith the scope of this Bill to make arrangements for what would happen in this Parliament after devolution. In the other place the Procedure Committee is looking at what might happen to procedures there after devolution. It will be taking evidence from a range of sources and we should not prejudge the outcome of its considerations. However, as I have mentioned before, it is possible that a convention will develop in the other place that questions as regards matters within the competence of the Scottish parliament are not accepted if United Kingdom Ministers decline to answer them on the grounds that the subjects are matters for the Scottish executive. That approach has worked before in relation to Northern Ireland and I can see advantages in adopting it again.

No doubt your Lordships' House will want to reflect on what we do here following the outcome of the review in the other place. Personally, I should have thought that

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the kind of self-denying ordinance which may be followed elsewhere is worth considering. I suspect that will happen.

Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord for answering the question about questions. Before he sits down I would like to be clear about legislation. Let us assume that the Government have negotiated on an issue which is devolved; for example, involving agriculture or fishing or some other issue. It has been negotiated in Brussels and a conclusion has been reached there which requires legislation. That has to be passed. Will it be passed by this House for the whole of the United Kingdom or will it pass legislation for England and Wales? I shall leave out Northern Ireland because it involves quite complex devolution. Will it be left to the Scottish parliament to pass parallel legislation for Scotland? I am unclear as to what will happen in those circumstances.

Lord Sewel: My Lords, there are sections of the Bill which we are likely to try to define as regards the nature of the relationship between this Parliament and the Scottish parliament in relation to the acceptance of international obligations and carrying them through into law. I would like to hold back on this until we reach that stage of the Bill.

Baroness Carnegy of Lour: My Lords, before the noble Lord continues, can he say how he sees the role of the Select Committees of this House? For example, there is Sub-Committee D of the European Communities Committee which concentrates on matters relating to agriculture and the like. Will they take into consideration the views of the Scottish parliament? Will the Select Committees address their recommendations to the Scottish parliament as well? These kinds of things should be sorted out before the Bill becomes law; otherwise there will be great confusion.

Lord Sewel: My Lords, I believe that we sometimes create problems for ourselves by seeking to define precisely all matters of detail, when in some cases the application of common sense, based on experience, is perhaps the best way forward. What the noble Baroness asked is a prime example. I believe that something sensible will occur, which is a proper and reasonable way of conducting business.

As regards a point raised by the noble Lord, Lord Mackay of Ardbrecknish, about the Secretary of State for Scotland, he will be answerable to the UK Parliament for the discharge purely of his functions, including the transmission, and the amount, of the block grant to the Scottish executive. However, how that grant is spent will be a matter for the Scottish parliament to consider. On that basis, I hope that the noble Lord will withdraw his amendment.

Lord Steel of Aikwood: My Lords, I am most grateful to the Minister for his reply. In a way I am sorry that I dragged the noble Lord, Lord Mackay of Ardbrecknish, into this discussion. He advanced a most dangerous doctrine by inviting ingenuity among

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Westminster parliamentarians in future to meddle--that appears to be his view--in the internal affairs of Scotland. I accept entirely what the Minister has just said in his closing remarks, that as long as the office of Secretary of State for Scotland exists--and I agree with the noble Lord, Lord Mackay, that it will not be for very long--it would be unacceptable for questions to be tabled to him about how money is spent simply on the excuse that he is responsible for the transfer of the block grant from the Treasury to Scotland.

The noble Lord, Lord Mackay of Ardbrecknish, introduced a Brussels red herring. I agree with the Minister in considering it a fair point as regards a subject such as agriculture and a clear correlation between Community competence, on the one hand, and the devolved administration of agriculture matters for Scotland, on the other. If there is some agreement where we have to legislate, for example, against, say, five-legged sheep, common sense dictates that the Scottish parliament and this Parliament would agree that one simple piece of legislation should go through this House affecting the whole of the United Kingdom. I do not believe that anyone would take offence at that.

However, if it were a matter relating to our external obligations, that would clearly be a reserved matter. I do not think there is a problem. I welcome what the Minister said about a convention that will grow. I agree with that; namely, that this Parliament will not normally legislate on devolved matters. I would rather that the Minister had added the words "nor interfere" in devolved matters. I do not believe that that is a matter for discussion or questions in this or the other House. I believe that it would be resented in Holyrood if this Parliament were seen to try to interfere in devolved matters. I accept the Minister's assurance that that is not intended and that a convention will develop. It is just unfortunate that these two lines remain in the Bill. We shall just have to agree to differ. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 [Legislative competence]:

Lord Sewel moved Amendment No. 114:

Page 15, line 8, leave out subsection (5).

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 115:

Page 15, line 12, leave out subsection (6).

The noble and learned Lord said: My Lords, in moving this amendment I shall speak to Amendments Nos. 131, 145, 192 and 192A. Government Amendment No. 192 inserts a new clause which makes provision as to the interpretation of:

    "(a) any provision of an Act before the Scottish parliament, or of a Bill for such an Act, and

    (b) any provision of subordinate legislation, made, confirmed or approves, or purporting to be made, confirmed or approved, by a member of the Scottish Executive",
where such a provision could, on one reading, be outwith the competence of Parliament. The provision clarifies and replaces the existing provisions in respect

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of these matters in Clauses 28(6) and 50(4). Those subsections are consequentially deleted by Amendments Nos. 115 and 145.

In the sense that it builds on the existing clauses, this is not a new provision. It is, however, a very important one and it may be helpful if I briefly explain how it is intended to work. First, the new clause is intended to apply to the interpretation of Bills as well as to Acts of the Scottish parliament. It will therefore apply in any case where the Judicial Committee of the Privy Council is considering any reference to it of a Bill or of a devolution issue in connection with an Act of the Scottish parliament.

Secondly, the new clause makes it clear that any provisions in such legislation or in Bills which could be read widely as being outwith competence are to be read as narrowly as is required in order for them to be within legislative competence, but only so far as it is possible to do so.

An example might make this clearer. An Act of the Scottish parliament might make general provision enabling the Scottish ministers to hold a referendum on any matter. It would be possible to read that Act as enabling Scottish ministers to hold a referendum on some reserved matters such as independence or the monarchy. The Act would be ultra vires to that extent. However, in order to preserve the validity of that Act, the new clause would require the courts to read the Act as narrowly as is required for it to be intra vires, so far as it is possible to do so. In other words, the courts will be required to read the Act of the Scottish parliament as enabling only the holding of referendums on matters within the competence of the parliament. In that way, the Act is not rendered ultra vires to any extent.

This is thought to be the normal rule of construction which the courts would apply in construing legislation from parliaments with limited powers. They would seek to give effect to that legislation rather than to invalidate it. This is called the principle of efficacy. However, if a provision can clearly only be read as making provision outwith competence--for example, an Act of the Scottish parliament providing only for a referendum on independence or the monarchy--the new clause will not enable or require it to be read as being within competence.

We think it is necessary to have this provision to ensure that legislation made by the parliament and the executive can be given effect in relation to matters within their competence and does not have to be struck down merely because it could, on a broad reading, also potentially relate to matters outwith their competence.

As I have explained, Amendments Nos. 115 and 145 are consequential. They delete the redundant provisions in Clauses 28(6) and 50(4). I beg to move.

5.30 p.m.

The Earl of Mar and Kellie: My Lords, this group of amendments is clearly designed to establish a bias in favour of devolution. It is inevitable that some legislation passed by the Scottish parliament will be tantamount to sailing close to the wind. Wherever the

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line is drawn, it will be impossible to avoid coming up to the line. There cannot be a legislative no man's land. I am sure that those members of the Judicial Committee who have to rule on devolution issues will find helpful the instruction to read this legislation in favour of the Scottish parliament. This amendment will strengthen the devolution project as it maximises rather than minimises the powers devolved to the Scottish parliament.

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