| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Clyde: My Lords, I add a further little worry which has occurred to me. As I understand it, and if the
view that has been expressed is correct, Section 5 gives the authority to Schedule 1, so how can amendments be made to Schedule 1 with any effect?
Lord Sewel: My Lords, I shall try to clarify the intention, but because of the importance of this matter if there are outstanding difficulties I shall be happy to take the measure away. However, I shall proceed for the moment. The intention has always been that the Scottish parliament will make its own provisions with regard to the interpretation of Acts of a Scottish parliament. In the first instance the intention is to make transitional provision in applying the Interpretation Act 1978. The idea is to use the power to make transitional provision to apply the 1978 Act to the Acts of the Scottish parliament unless and until the Scottish parliament makes its own provision. If that is satisfactory at this stage, we can keep the amendment on that understanding. If my explanation is not satisfactory, I am content to take it away.
Lord Hope of Craighead: My Lords, before the Minister sits down, perhaps I may say a few words. I would be perfectly content with the assurance that the transition from the Interpretation Act--which quite obviously deals with measures of this Parliament--was provided for in the way described. I understand that there will have to be some measure which can then be used by the Scottish parliament for the interpretation of its measures. However, it is not simply that point which troubles me. I wish to be sure that the continuing provisions--some of which are in the amendment--for interaction between Acts of the Scottish parliament and Acts of this Parliament are all fully in place. I see some of them but I want to be quite sure that the entire battery of measures that is needed to provide for the interaction between measures of this Parliament and of the Scottish parliament is in place.
10.30 p.m.
Lord Mackay of Drumadoon: My Lords, before the Minister replies to the noble and learned Lord, Lord Hope, this comes as something of a surprise to me in view of the remarks of the noble and learned Lord the Lord Advocate in Committee on 14th July. He said:
- "I see no reason for any difference between construing an Act of the Scottish parliament by the courts and an Act of the UK Parliament"--[Official Report, 14/7/98; col. 248.]
There may be an innocent explanation to this amendment and I fully accept that, possibly to his surprise, the Minister has been faced with a number of fairly searching questions for this time of day. What troubles me is that there appears to be somewhat of a departure from the approach that I understood the noble and learned Lord to advocate, one with which I fully sympathise; namely, that in construing Acts of the Scottish parliament and construing Acts of this Parliament, by and large a common approach should be taken.
When we bear in mind that it will be competent for the Scottish parliament to amend Acts of this Parliament, the idea that one has different rules of construction for different parts of an amended statute
depending on where they originated is somewhat mind-boggling. It may make a lot of money for lawyers but it should not commend itself either to politicians or, more importantly, to the electorate.It may be sufficient if the Minister will undertake to write to those who have contributed to this debate within the course of the next couple of days so that, if it is necessary to return to this matter at Third Reading, that can be done. I do not disguise my concern that, technical though Amendment No. 226K was explained to be, it seems to open up something of a hornet's nest as regards the interpretation of legislation.
Lord Sewel: My Lords, I wonder whether it would be acceptable if at this stage we kept with the amendments, and if I promised to write within the next day or two and we could return to this matter at Third Reading if there are issues outstanding. On that basis, I commend the amendment to the House.
On Question, amendment agreed to.
Lord Hardie moved Amendment No. 226L:
On Question, amendment agreed to.
Lord Hardie moved Amendment No. 226M:
The noble and learned Lord said: My Lords, the purpose of this amendment is to transfer certain devolved functions of the Registrar of Companies in Scotland and the Assistant Registrar of Friendly Societies for Scotland to the Accountant in Bankruptcy, who will be an office holder in the Scottish administration.
As a result of the amendment, functions relating to the devolved aspects of insolvency in Scotland will be concentrated in a single office holder appointed by and accountable to Scottish ministers. The Registrar of Companies and the Assistant Registrar of Friendly Societies for Scotland will be left with their reserve functions and therefore accountable to the United Kingdom Government and Parliament. I trust that noble Lords will see the sense of this approach. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, will the noble and learned Lord give some brief indication of the provisions in subsection (3)? There is a whole list of them and it is quite difficult to follow them. I am sure that the noble and learned Lord can at least lead us through the main ones so that we can fully understand what is to be devolved.
Viscount Thurso: My Lords, there is a great deal of meat in this amendment and I do not pretend to have been able to get to grips with all of it. Perhaps I may raise a small point for the Minister to answer. In this House we have often debated when to use "shall" and when to use "may". But for the first time in my experience in this House I see the phrase,
Lord Hardie: My Lords, Section 84 (3) refers to resolutions as to the winding up of a company which require to be forwarded to the registrar and recorded by him in accordance with Section 380 of the 1985 Act. Section 89(3) deals with a voluntary winding up, where there is to be a declaration of solvency to be delivered to the registrar within 15 days of the resolution.
Section 94(3) provides that, in a member's voluntary winding up, on completion the liquidator is required to make an account of the winding up, showing how it was conducted, and to present it to a general meeting of the company within a week after the meeting and to send a copy of the account to the registrar, along with a return of the holding of the meeting and its date.
Section 106(3) provides that, in a creditor's voluntary winding up, when the company's affairs are fully wound up the liquidator is to make up an account of the winding up, to be presented at a general meeting of the company and a meeting of creditors. A copy of the account is to be delivered to the registrar of companies within a week.
Section 109(1) provides that in a voluntary winding up the liquidator is to deliver to the registrar of companies within 14 days after his appointment the prescribed notice of the appointment.
Section 112(3) provides that a copy of an order staying the proceedings in a winding up must be forwarded forthwith by the company to the registrar.
Section 130(1) provides that on the making of a winding-up order a copy must be forwarded by the company to the registrar, who is required to enter it in the records relating to the company.
Section 147(3) provides that any order of the court assisting the proceedings in a winding up is to be forwarded forthwith by the company to the registrar of companies, who is required to enter it in the records.
There are a number of other provisions. Perhaps the noble Lord, Lord Mackay of Ardbrecknish, could identify which particular provision he is concerned with.
With regard to the point made by the noble Viscount, I seek refuge in the draftsman on this occasion. I suspect that this is a drafting arrangement. I think that in this case the use of the words,
Page 99, line 14, leave out from ("authority") to end of line 15 and insert ("with mixed functions or no reserved functions.").
Page 99, line 30, leave out from beginning to ("(members") and insert--
("(1) The Insolvency Act 1986 is amended as follows.
(2) Anything directed to be done, or which may be done, to or by--
(a) the registrar of companies in Scotland by virtue of any of the provisions mentioned in sub-paragraph (3), or
(b) the assistant registrar of friendly societies for Scotland by virtue of any of those provisions as applied (with or without modification) in relation to friendly societies, industrial and provident societies or building societies,
shall, or (as the case may be) may, also be done to or by the Accountant in Bankruptcy.
(3) Those provisions are: sections 53(1), 54(3), 61(6), 62(5) (so far as relating to the giving of notice), 67(1), 69(2), 84(3), 94(3), 106(3) and (5), 112(3), 130(1), 147(3), 170(2) and 172(8).
(4) Anything directed to be done to or by--
(a) the registrar of companies in Scotland by virtue of any of the provisions mentioned in sub-paragraph (5), or
(b) the assistant registrar of friendly societies for Scotland by virtue of any of those provisions as applied (with or without modification) in relation to friendly societies, industrial and provident societies or building societies,
shall instead be done to or by the Accountant in Bankruptcy.
(5) Those provisions are: sections 89(3), 109(1), 171(5) and (6), 173(2)(a) and 192(1).
(6) In section 427").
"shall, or (as the case may be) may"--
which seems to be browning the covey somewhat.
"shall, or (as the case may be) may",
arises from the start of the subsection, which says that,
"Anything directed to be done [shall be done], or which may be done [or (as the case may be) may be done]".
One can see the sense of the draftsman's approach on this occasion.
Next Section
Back to Table of Contents
Lords Hansard Home Page