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Baroness Ramsay of Cartvale moved Amendment No. 218A:
The noble Baroness said: My Lords, during Committee the noble Earl, Lord Mar and Kellie--temporarily not in his place--tabled an amendment to insert into the exceptions to the social security reservation a reference to Section 26 of the National Assistance Act 1948. His argument was that, if Section 22 of that Act is to be excepted, then Section 26 ought also to be excepted as the two provisions are closely related and both deal with the provision of accommodation by local authorities and their powers to charge for such accommodation. We agreed to look further at the relationship between those two sections.
In considering Sections 22 and 26 it became clear to us that neither of those sections deals with matters covered by the social security reservation. Section 22 of the 1948 Act is about the provision of accommodation by local authorities and their powers to charge for that accommodation. The provisions of Section 22 are applied by Section 26 which enables local authorities to arrange for accommodation to be provided by the voluntary sector or private providers. Those sections are also applied in relation to the provision of accommodation by local authorities in Scotland under the Social Work (Scotland) Act 1968 and the Mental Health (Scotland) Act 1984. The
Viscount Thurso: My Lords, the noble Baroness kindly referred to my noble friend who is not in his place. Noble Lords will be aware that he has been one of the most assiduous attenders on this Bill through all its stages in your Lordships' House. While I do not have a clue as to what the amendment does, on his behalf I thank the noble Baroness.
On Question, amendment agreed to.
Lord Hardie moved Amendment No. 218B:
The noble and learned Lord said: My Lords, in moving Amendment No. 218B, I shall speak also to Amendment No. 218E.
Amendments Nos. 218B, and 218E, along with Amendment No. 145C to Clause 52, which we have already considered, make up a package of amendments relating to training for employment and job search and support to ensure that the former is devolved and the latter is reserved. The two amendments refine the job search and support and social security reservations in Schedule 5 in order to ensure that that policy is achieved.
Amendment No. 218B adds an exception to the reservation of social security matters to ensure that payments to persons undergoing training who have injured themselves are not a reserved matter. Amendment No. 218E adds an exception to the reservation of job search and support. It will except parts of the Enterprise and New Towns (Scotland) Act 1990 relating to assisting persons to establish themselves as self-employed persons and relating to the disclosure of information under the Act. Those matters would otherwise fall within the reservation of the subject matter of the 1973 Act but would not fall within the existing exception for training for employment. Your Lordships may be aware that the 1990 Act established Scottish Enterprise and Highlands and Islands Enterprise. Matters relating to the economic development agencies such as Scottish Enterprise and Highlands and Islands Enterprise, which not only support economic development but also assist people to obtain training for employment and to establish themselves as self-employed, are also to be within the competence of the Scottish Parliament.
The Government believe that this package presents a sensible split of legislative competence and an efficient and practical sharing of powers. I beg to move.
On Question, amendment agreed to.
Lord Hardie moved Amendment No. 218C:
The noble and learned Lord said: My Lords, we are concerned that the blanket reservation of the subject matter of the Child Support Acts may restrict the legislative competence of the Scottish parliament in relation to the law on aliment more than is intended. Aliment is that part of Scottish private law that deals with the obligations of one person to pay maintenance in respect of children and others. The Scottish parliament should be able to legislate on the general rules of Scottish private law, of which aliment is a part, in so far as they do not conflict with the law of child support.
We have particular concern that the reservation of the powers conferred on the Secretary of State by Section 30(1) and, prospectively, by Section 30(2) of the 1991 Act to collect maintenance other than child support maintenance would prevent the Scottish parliament from legislating generally in relation to the imposition of obligations of aliment and the assessment of the levels of aliment payable and from legislating generally as to the collection and enforcement of such aliment.
This amendment is therefore to clarify that the Scottish parliament will be able to legislate on aliment other than where it is superseded by the Child Support Acts.
The second part of Amendment No. 218C ensures that Section 30(2) of the Child Support Act 1991, which is not yet in force, can nonetheless be considered as part of the subject matter of the 1991 Act. I beg to move.
On Question, amendment agreed to.
Lord Sewel moved Amendment No. 218D:
On Question, amendment agreed to.
Lord Sewel moved Amendment No. 218E:
On Question, amendment agreed to.
Lord Mackay of Ardbrecknish moved Amendment No. 219:
The noble Lord said: My Lords, in moving Amendment No. 219, I shall speak also to Amendment No. 220.
We discussed Amendment No. 219 in Committee but did not discuss these two issues taken together. Amendment No. 219 would remove from reservation the law on abortion and move it to the Scottish parliament. Amendment No. 220 seeks to reserve euthanasia. The amendments seem to be in opposite directions but that is
The two issues have three things in common. First, they have a considerable moral dimension. Secondly, they involve the criminal law. Thirdly, they involve health. I do not believe that we are encompassing the moral dimension in legislation, so I can leave that to one side, except to underline the point that that is a common theme of both abortion and euthanasia. People have very strong feelings on both of those issues on moral grounds, one way or the other.
When one comes to setting up a Scottish parliament, one has to approach those two issues from a different attitude, and that with regard to the criminal law and to health. The noble Lord, Lord Sewel, at various stages in the progress of the Bill, has justified the decision to devolve something to the Scottish parliament or to keep something at Westminster from the point of view that one starts with the big picture, the great issues that have been devolved, and one then asks: Are these issues closer to the big issue of being devolved or closer to the big issue of being reserved?
Perhaps I may give an example. We have debated frequently the question of agriculture and fisheries and the interaction between the agricultural and fisheries policies in the United Kingdom and in the EU. Eventually, we obtained from the Government a clear statement of the position--that is, that the common agricultural policy and the common fisheries policy are matters of foreign affairs, including matters relating to Europe and, therefore, have to follow that heading and will be dealt with by the United Kingdom Parliament. Other aspects of agriculture and fisheries which do not involve Europe, including the carrying out of the policy, may be devolved, but the actual policy will stay at Westminster because the broad heading of the negotiations with the EU is a Westminster decision.
In considering the two issues of abortion and euthanasia, we must now ask ourselves: Where does the criminal law go and where does health go? It seems to me right and proper that those two issues should follow those two broad headings. In this case, we do not even have a dilemma because both broad headings go to the Scottish parliament. The criminal law goes in its entirety to the Scottish parliament. Scots law will go to the Scottish parliament which will decide and legislate on matters relating to the criminal law. All those lovely Acts, such as the Criminal Procedure (Scotland) Act--and all sorts of other such legislation with which we have had pleasure in this House and in the other place--will go to the Scottish parliament. We do not argue about that. One of the key arguments in favour of having a Scottish parliament is that there will be a unique body of Scottish law.
Euthanasia and abortion also involve health--and health is to be devolved entirely to the Scottish parliament. The Scottish parliament will be entirely responsible for health, just as the Secretary of State for Health is responsible for it at present.
If one follows the principled approach to these matters, it seems clear that two issues, which involve both the criminal law and health, should be devolved to the Scottish parliament. The Government have accepted that in the case of euthanasia, but not in the case of abortion. That seems odd. Their only justification in Committee appeared to be that one could not have a different law on different sides of the Border. If that is the view taken by the Government, we should not be going down the road of devolution. The whole point about devolution is that it envisages the possibility of the Scottish parliament coming to a different conclusion regarding the position in Scotland from that reached by this Parliament in relation to England and Wales.
Indeed, on 4th May 1978, when the last devolution Bill was discussed, the noble Lord, Lord Kirkhill, who then occupied the position of the noble Lord, Lord Sewel, said in relation to that Bill, that abortion should be devolved. In the debate on whether it should or should not be devolved, the noble Lord, Lord Kirkhill, answering the point that it would be undesirable to have different legal provisions on either side of the Border, said:
That seems perfectly sensible. If it is to be a parliament in which we are to have confidence--I do, although it does not seem, in this regard, that the Government do--I believe that it should be given the ability to make such decisions both on euthanasia and abortion.
One does not have to go back to 1978 to look for some help with this argument. I have only to go back to 5th October this year, to the debate on the Northern Ireland Bill. Discussing the question of whether or not abortion should be devolved to the Northern Ireland Assembly, the Minister at the Northern Ireland Office, the noble Lord, Lord Dubs, said:
It is totally illogical for the Government to maintain their current position in the light of what the noble Lord, Lord Dubs, said. It is also illogical for them to have one policy on abortion and another on euthanasia, both of which affect the criminal law and the health service to a huge degree and both of which have a very large moral component.
I think that I have made the case. I am deeply grateful to the noble Lord, Lord Dubs, for making the Government's policy so abundantly clear on 5th October. I look forward to consistency from the Government about devolution and I look forward to them accepting Amendment No. 219. If they do not accept Amendment No. 219, they should accept Amendment No. 220. If they do not, there is a suspicion that there is some other motive behind their actions. If there is some other motive, I should be deeply grateful if the Government would let us know. I beg to move.
Page 81, line 2, leave out from first ("of") to ("Part") in line 3.
Page 81, line 6, after ("children),") insert ("section 15 of the Enterprise and New Towns (Scotland) Act 1990 (industrial injuries benefit),").
Page 81, line 21, at end insert--
("Exception from reservation
The subject-matter of sections 1 to 7 of the Family Law (Scotland) Act 1985 (aliment).
Interpretation
If section 30(2) of the Child Support Act 1991 (collection of payments other than child support maintenance) is not in force on the principal appointed day, it is to be treated for the purposes of this reservation as if it were.").
Page 81, line 28, leave out from ("authority") to ("persons") in line 29 and insert ("with mixed functions or no reserved functions,").
Page 83, line 39, at end insert (", and
(b) the following sections of Part I of the Enterprise and New Towns (Scotland) Act 1990 (Scottish Enterprise and Highlands and Islands Enterprise)--
(i) section 2(3)(c) (arrangements for the purpose of assisting persons to establish themselves as self-employed persons), and
(ii) section 12 (disclosure of information).").
7 p.m.
Page 84, leave out lines 2 to 4.
"In the Government's view, this is what legislative devolution is all about. It would surely be a nonsense to exclude from devolution a field of law just because it raises a number of difficult issues.
It would, in my view, be insulting to suggest that the elected representatives of Scotland would not be responsible enough to deal with these issues and that they would fail to give proper weight to the feelings of the people of Scotland".--[Official Report, 4/5/78; cols. 487-88.]
I would go further and say that they would fail to give proper weight to the problem of different laws south of the Border, but they would have the decision in their own hands.
"The position is very simple. Abortion law comes under criminal justice. Criminal justice is a reserved power and therefore abortion is a reserved power ... when responsibility for criminal justice and policing is passed to the Assembly, which it is our clear intention will be the case when the conditions are appropriate, responsibility for abortion will also pass to the Assembly... As I have said, the day that we transfer those powers, responsibility for abortion will be transferred as well".--[Official Report, 5/10/98; col. 228.]
Please can we have some consistency within Government? It is perfectly clear that in this Bill the responsibility for criminal law and for criminal justice is to be devolved. Following the logic that the Government explained on 5th October, abortion ought to be devolved because, as I have said, not only does that follow from what the noble Lord, Lord Dubs, said about the criminal law, but I believe that it also follows the health service point which I mentioned earlier.
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