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Lord Sewel: My Lords, I recognise the points made by the noble Lord, Lord Mackay of Ardbrecknish. He put the context of the earlier amendment and he got it absolutely right; we were talking about sea fisheries. But, on reflection, subsection (3) involves a little bit more than that and I will deal with that extension. Its whole purpose will be to clarify which existing ministerial functions will transfer to Scottish ministers by providing for Her Majesty, by Order in Council, to specify which functions are or are not exercisable in or as regards Scotland. Any order made under Clause 29(3) is subject to affirmative procedure, both at Westminster and in the Scottish parliament. The use of this power will require the agreement of both parliaments. There will be occasions when, although a function is exercisable outwith Scotland, it will be important to be able to regard it as one which is exercisable in or as regards Scotland by virtue of some other connection that it has to Scotland.

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The noble Lord is absolutely right in saying that the principal use will be in functions relating to sea fisheries. That is where it is essential that this process exists. But on reflection--I did think about it over the summer--I saw that it has other uses as well; for example, in relation to protection of the marine environment, where existing functions are similarly exercisable in relation to areas of the sea. So it is not just sea fishing but the associated marine environment where one needs this use of words to be able to act effectively.

When such regulatory functions are exercised outwith Scotland there will need to be clear connections to Scotland to justify action being taken by Scottish Ministers and for Scottish courts to recognise jurisdiction in trying offences under Scots law. At sea, however, it is possible to envisage various connections to Scotland that might be thought to satisfy the condition "as regards Scotland". Equally, it might be possible to establish various connections to other parts of the United Kingdom in respect of any particular function. The power could also be used in connection with the executive devolution of functions to Scottish Ministers under Clause 59; for example, by providing that the appointment of Scottish members of a UK or GB body operating in a reserved area is a function exercisable as regards Scotland, so that Scottish Ministers can be given a role in the exercise of the appointment function under Clause 59.

I think I have demonstrated that the principal reason for having the power is related to sea fisheries, but there are certain very, very secondary contexts in which the power would be exercisable and necessary as well. I mentioned the marine environment and the business of Scottish members on GB bodies and the ability of Scottish Ministers to be involved in those appointments. That is why there is reference to "as regards Scotland"--that is necessary--but it is a very minor extension beyond sea fisheries. I hope that satisfies the noble Lord, Lord Mackay.

Lord Mackay of Ardbrecknish: My Lords, I suspect that the Minister should be grateful to me for putting down this amendment because it has allowed him to put on record a much wider interpretation of this subsection than one would have construed from his words at the Committee stage. I suspect that if the Minister had tried to do something rather wider than sea fishing some aggrieved party might easily have taken him to court and prayed in aid his words at the Committee stage. So I think I have done the Minister a big favour--I hope he appreciates it--by allowing him to put it on the record, in case any Pepper v. Hart occasions arise, that this subsection must be interpreted a good deal wider than it was initially in Committee.

I am happy to accept the noble Lord's explanation. I am happy to accept that it does have a wider application. I am therefore content to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Sewel moved Amendment No. 117:

Page 15, line 20, at end insert--
("( ) An Order in Council under this section may also make such modifications of--
(a) any enactment or prerogative instrument (including any enactment comprised in or made under this Act), or
(b) any other instrument or document,
as Her Majesty considers necessary or expedient in connection with other provision made by the Order.").

The noble Lord said: My Lords, in moving Amendment No. 117 I wish to speak also to Amendment No. 205. These are technical amendments which complete the package of government amendments to the powers to make subordinate legislation which we began in Committee. I am pleased to say that the Delegated Powers and Deregulation Committee has reported on our amendments and has welcomed them, recognising that the approach is easier to use and meets the concerns that the committee expressed in its earlier report. I beg to move.

Lord Renton: My Lords, last week, when we had the Northern Ireland Bill before us, we found provisions under which any use by the proposed assembly in Northern Ireland which appeared to be ultra vires could be referred to the judicial process in ways that were specified. The Government had tabled a new clause saying that if the Secretary of State thought it was ultra vires she could take steps to put it right. Reference was made to this Bill because in it we find that there are somewhat analogous powers, although they are not quite the same. I should be grateful if the Minister could tell the House what would happen in the following circumstances. Let us suppose that under Clause 29, as amended, an Order in Council were made in order to modify an enactment or prerogative instrument and then, under Clause 32, the matter was referred to the Judicial Committee, which reached a different conclusion from that of Her Majesty, acting, of course, on the advice of her Ministers. It would seem that the Secretary of State has some powers, but we need not trouble about those. But let us suppose that the Order in Council procedure and the decision of the judicial proceedings did not reach the same conclusion. What would happen? Which of them would have precedence?

Lord Sewel: And answer came there none, my Lords. I thank the noble Lord, Lord Renton, for that point. He will not be surprised to know that I cannot give him an answer here and now, but I promise to give him an answer as quickly and as fully as I can.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 118:

Page 15, line 21, leave out subsection (4).

The noble and learned Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

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Clause 30 [Scrutiny of Bills by the Scottish Executive]:

[Amendment No. 119 had been withdrawn from the Marshalled List.]

Lord Mackay of Drumadoon moved Amendment No. 119A:

Page 15, line 30, at end insert--
("( ) The Scottish Executive and its members shall not be liable in damages to any person who suffers loss as a consequence of an incorrect statement made under subsection (1).").

The noble and learned Lord said: My Lords, this amendment and Amendment No. 119D return to an issue which arose in Committee on 28th July and relate to the statement which a member of the Scottish executive has to make on introducing a Bill to the new parliament. An issue arose as to the nature of the responsibility of the Minister on such an occasion. At one stage the noble Baroness, Lady Ramsay, indicated that there would be no legal responsibility on the individual Minister concerned, but in an earlier part of her speech she referred to the provisions of Clause 48(4), which seem to suggest that not only the Minister who made the statement but other Ministers would also be legally responsible.

From time to time, through no fault of the member of the Scottish executive concerned, an erroneous view will be taken as to the compatibility of a Bill with convention rights or any other aspect of the competence of the new parliament. There being a question of law, lawyers are not always correct, which is why we have a system of appellate courts to correct even the judges who occasionally get the law wrong. It seems to me to be entirely inappropriate that there should be any legal responsibility on a member of the executive or indeed any liability in damages. I have tabled these amendments in the hope that an unequivocal response can be given by the Government. I beg to move.

6 p.m.

Lord Hardie: My Lords, despite the clear explanation of the noble and learned Lord, Lord Mackay of Drumadoon, the Government do not believe that these amendments are necessary. They would prevent members of the Scottish executive or the presiding officer from being liable in damages if someone suffers loss as a consequence of an incorrect statement by a member of the executive that an Act containing the same provisions would be within the competence of the parliament.

We consider that the principles of ordinary law should apply and we do not think it would be right to afford a member of the Scottish executive or the presiding officer the additional protection of these amendments. If someone has suffered a loss as a result of reliance on a statement that proves later to be incorrect--or, more particularly, negligently made--and can demonstrate to a court that he has a competent and relevant action for damages, then it would be wrong to prevent either the member of the Scottish executive or the presiding officer from being liable in damages.

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I should point out that when we come to discuss Amendment No. 138, to which my noble friend will speak later, it will be seen that we have provided the parliament and its various officers with the minimal protection that we consider appropriate. If the Scottish parliament considers it appropriate to confer additional protections on the Scottish executive or the presiding officer in relation to damages then it could do that; subject, of course, to compliance with the European Convention on Human Rights. With that explanation, I invite the noble and learned Lord to withdraw his amendment.

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