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Lord Sewel moved Amendment No. 226K:

Page 98, leave out lines 20 to 32 and insert--
("(2) After section 23 there is inserted--
"Acts of the Scottish Parliament etc.
23A.--(1) This Act applies in relation to an Act of the Scottish Parliament and an instrument made under such an Act only to the extent provided in this section.
(2) Except as provided in subsection (3) below, sections 15 to 18 apply to--
(a) an Act of the Scottish Parliament as they apply to an Act,
(b) an instrument made under an Act of the Scottish Parliament as they apply to subordinate legislation.

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(3) In the application of those sections to an Act and to subordinate legislation--
(a) references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and
(b) the reference in section 17(2)(b) to subordinate legislation includes an instrument made under an Act of the Scottish Parliament.
(4) In the application of section 20 to an Act and to subordinate legislation, references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament."
(3) In Schedule 1 (words and expressions defined), the following definitions are inserted in the appropriate places--
""Act" means an Act of Parliament."
""Enactment" does not include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament."").

The noble Lord said: My Lords, government Amendment No. 226K is technical. It seeks to clarify the provisions contained in paragraph 14 of Schedule 8 which amend the Interpretation Act 1978 so that it deals with the interaction between Westminster legislation and Acts of the Scottish parliament. That is the new Section 23A.

The final part of the amendment is new and provides a general rule, as a starting point, about references to Acts and enactments in future Westminster legislation. It inserts two definitions in Schedule 1 to the 1978 Act which provide that the terms "Act" and "Enactment" will not include Acts of the Scottish parliament or instruments made under an Act of the Scottish parliament. I beg to move.

Lord Mackay of Drumadoon: My Lords, I have some recollection that yesterday when the noble Baroness, Lady Ramsay of Cartvale, used the words "technical amendments", my ears pricked up. Perhaps I may advise the noble Lord, Lord Sewel, that when he uses similar words my ears similarly prick up.

This is a substantial amendment and the fact that it comes at the eleventh-and-a-half hour of the debate on the Bill is a matter of surprise. As I understand it, the effect of the amendment is to provide that a substantial number of the sections of the Interpretation Act 1978 should have no application to the construction of Acts of a Scottish parliament. That is contrary to the impression that I have gained throughout our debates on the Bill.

Earlier today, in anticipation of this debate, I went to the Library and obtained a copy of the 1978 Act. Having done so, I can advise the House that it is instructive to look at the rules of construction of statutes which are disapplied by this, at first sight, minor amendment but which in my view is a very substantial amendment.

Section 1 of that Act states:

    "Every section of an Act takes effect as a substantive enactment without introductory words".

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Section 4 then states:

    "An Act or provision of an Act comes into force--

    (a) where provision is made for it to come into force on a particular day, at the beginning of that day;

    (b) where no provision is made for its coming into force, at the beginning of the day on which the Act receives the Royal Assent".
Section 5 of the Act refers to Schedule 1, which gives assistance on how certain words fall to be construed. They include words which we discussed in a little detail earlier in the proceedings on the Bill when debating the provisions of Clause 25; namely, the meaning of the words, "oath" and "affidavit". Those words are defined by Schedule 1 as including affirmation and declaration. The schedule also includes useful assistance on how one interprets other terms such as "Lord Chancellor", "Sheriff" and "Writing".

I move on now to Section 6, which states that,

    "unless the contrary intention appears--

    (a) words importing the masculine gender include the feminine;

    (b) words importing the feminine gender include the masculine"--
perhaps I may refer back to the amendment that we discussed yesterday on the Queen's Printer in Scotland in that respect. Section 6(c) then refers to the fact that,

    "words in the singular include the plural and words in the plural include the singular".
The legislation includes provisions dealing with how one construes references to distance, time and other matters in the construction of statutes.

I could go on, but I do not believe that it is necessary for me to do so. It is clear that Amendment No. 226K disapplies a substantial number of the provisions of the Interpretation Act 1978 from the construction of Acts of the Scottish parliament. I personally have some concern as to the competency of that parliament enacting an interpretation Act that would bind the English and Northern Irish courts in the interpretation of Acts of the Scottish parliament. It would undoubtedly be within the competence of the Scottish parliament to bind the Scottish courts, but, in view of the provisions of Clause 28(2)(c) as currently drafted, it might be possible to argue that Clause 28(2)(a) would preclude the Scottish parliament from laying down rules which would bind the English and Northern Irish courts as to how they construed such Acts.

However, much more importantly, I believe that is a very serious mistake to lay down on the face of the Bill in the stark terms set out in the amendment a divergence of approach to the question of construction of statutes, which is a necessary consequence of the words which the draftsmen have used on this occasion. As I have said on more than one occasion, after devolution when members of the Scottish parliament have been elected and the latter is up and running, the man in the street in Scotland will wish to treat the legislation coming from this Parliament in exactly the same way as he treats legislation coming from the Scottish parliament. I believe that the courts should follow a similar approach. Therefore, I must express grave concerns

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about the amendment, which, as I construe it, seeks to disapply a major share of the provisions of the Interpretation Act 1978.

Lord Hope of Craighead: My Lords, I think perhaps it might be convenient for me to add a few words to what the noble and learned Lord has said. As I read the amendment, its effect will be quite dramatic so far as concerns the Interpretation Act. Indeed, the only sections of that Act which would continue to apply to Acts of the Scottish parliament are Sections 15 to 18 and Section 20. I believe that that would be the effect of the amendments to Schedule 1, which seem to be a complete reversal of what was, and still is, in the schedule prior to the making of these amendments.

I would be able to understand this approach if the Minister could tell us that one of the first measures which would be introduced by the Scottish parliament was a fresh interpretation Act. While I share reservations as to whether that would be competent as regards the interpretation of measures in courts outside those in Scotland, at least it would indicate to us that the important parts of the Interpretation Act which one would need to use in order to interpret Scottish legislation would be available in the future when Scottish legislation is being interpreted.

An alternative approach might be to build some measure into this Bill which would provide equivalent measures with amendments suitable for the interpretation of Scottish enactments. In any event, there is a further point that troubles me which makes me suggest, with the greatest respect to the Minister, that it might be wise to take this amendment away and bring it back at Third Reading. I am not at all clear why reference has not been made to some of the other sections in the Interpretation Act which might be relevant to the kind of amendment which is being provided for here.

Sections 15 to 18 deal with the repeal of enactments by Acts of the Scottish parliament, and therefore the machinery which the Interpretation Act applies for these repeals is machinery which the Scottish parliament will need. Therefore it is quite right that these sections should apply to the Scottish parliament. Section 20 has a similar effect because it deals with references to other enactments. Again, it will be useful to the Scottish parliament to have the benefit of Section 20. However, I am not at all sure why no mention is made of Sections 22, 23, and possibly 26 and 27, which might also have a bearing on the way in which Scottish legislation might interact with other measures.

These are complicated matters and it is a matter of some regret that this measure has come forward at this stage in the Bill. The interaction between the Interpretation Act and the ability of the Scottish parliament to legislate effectively with the benefit of that measure is of such great importance that I suggest this amendment is worth having a further look at. In any event we need a much clearer explanation as to its effect.

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