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Lord Mackay of Drumadoon: My Lords, I welcome these two amendments which were discussed previously on 28th October, as the Minister said. They deal with a practical concern which I raised then. I am most grateful to the Government for responding positively.

On Question, amendment agreed to.

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Lord Sewel moved Amendment No. 13:

Page 11, line 1, after ("person") insert ("who is or has been").

On Question, amendment agreed to.

Clause 31 [Scrutiny of Bills by the Scottish Executive]:

Lord Sewel moved Amendment No. 14:

Page 14, line 33, leave out from ("Parliament,") to end of line 39 and insert ("state that in his view the provisions of the Bill would be within the legislative competence of the Parliament.
(1A) The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision.
(1B) The form of any statement, and the manner in which it is to be made, shall be determined under standing orders, and standing orders may provide for any statement to be published.").

The noble Lord said: My Lords, in moving Amendment No. 14 I shall speak also to Amendments Nos. 15 to 17. Before I discuss the details of these government amendments I wish to make it clear that in proposing amendments we do not seek at this stage to disturb amendments made earlier by the House to Clause 32.

Government Amendment No. 14 revises the formulation of Clause 31 and extends it to require the presiding officer, on or before the introduction of a Bill, to make a statement as to whether or not a provision of a Bill would be within the legislative competence of the parliament. This is similar to the requirement placed on a member of the Scottish executive when introducing a Bill. It will ensure that the parliament is aware of the presiding officer's views on the vires of any Bill. This gives the parliament important guidance about the competence of the parliament and allows the presiding officer to express his concerns if he has any. The final part of Amendment No. 14 is about the form of the statement. It provides that the form of the statements made by the Scottish executive and the presiding officer shall be determined by standing orders.

Amendments Nos. 16 and 17 make consequential provision in Clause 32. Government Amendment No. 15 is a drafting amendment. It is consequential upon the amendment made by the House to Clause 32(2). Given the earlier amendment, there is no need to refer in Clause 31(1) to subsection (2) and so Government Amendment No. 15 removes a redundant provision.

Perhaps it would be helpful if I explain to your Lordships what our thinking is in relation to Clause 32 as it develops. Noble Lords have put forward a persuasive case regarding the difficulties that a presiding officer, challenged in this way, would face if the parliament were able to question his authority, and we do not disagree with their views. However, we have looked closely at what the amendment made earlier achieves and we do not think it has quite the right effect. It would give the presiding officer the right of veto over which Bills were to be introduced into parliament.

Our thinking at the moment is to seek a position which would have the effect of deleting subsections (1) and (2) of Clause 32. This will ensure that the parliament is well aware of the presiding officer's views and that the presiding officer is not left in the

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uncomfortable and, we honestly believe, undesirable position of having an absolute veto over what Bills can be introduced into the parliament. I hope that noble Lords will agree that this addresses their concerns about the risk of conflict between the presiding officer and the parliament, but in essence that is a matter for a later date.

4.45 p.m.

Lord Mackay of Drumadoon: My Lords, as the noble Minister very properly said, these amendments fall to be considered against what happened on the 28th July, when your Lordships first debated the detail of Clause 32, or Clause 31 as it then was, beginning at col. 1368. This resulted in a Division, in terms of which an amendment standing in the name of the noble Earl, Lord Mar and Kellie, was allowed, and another one in my name, which brought about the introduction of the words,

    "A decision made by the Presiding Officer under subsection (1) shall not be capable of being overruled by the parliament".--[Official Report, 28/7/98; col. 1369.]

I have to confess that when I first read the amendments tabled for Third Reading my impression was that the Government were content to accept their defeat on that occasion and were not minded to reverse the defeat that they had suffered. I then remembered, with a little prompting, the amendments which were put down at Report stage in relation to these two clauses. Amendment No. 119 was in identical terms to Amendment No. 14, as we now have it, and the next amendment, Amendment No. 120, sought to leave out subsections (1) and (2) of Clause 31, as it then was, and effectively to reverse the defeat suffered at the Committee stage.

After certain discussions with the noble Minister, Lord Sewel, and through the usual channels, I understood that it had been accepted by the Government that it is against the conventions of your Lordships' House, and indeed against the Denham Convention, to seek to overcome at a later stage of a Bill's passage through this House a defeat which the Government have suffered at an earlier stage. Having listened to the noble Minister this afternoon I have a mild concern, to put it no higher than that at this stage, that Amendment No. 14 is at the very least a stepping stone, and presumably a necessary stepping stone, to reversing that defeat.

If that is correct, the allowance of this amendment at this stage might amount to a breach of the Denham Convention, which was followed rigorously by the previous government despite the wishes of certain very senior Members of that government in another place who took some persuading, I understand, that the convention fell to be honoured in the way that it was. I therefore noted that when the noble Lord, Lord Sewel, said he was not seeking at this stage to overturn the defeat, this was something that might well come at a later stage.

If all that the Government intend to do in another place is to make the Bill more effective, that may be acceptable. But if this Amendment No. 14 is an attempt

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to overturn the earlier defeat then that may prove to be unacceptable, albeit that it may be something we are not really aware of until the Bill returns to this House, if that ever proves to be necessary. The noble Lord said it would be wrong for the presiding officer to have an absolute veto. It may be a necessary part of a devolution settlement of the nature which the Government are bringing forward that the presiding officer, and the clerks who work for him, may in fact have something in the nature of an absolute veto in deciding which Bills are presented to parliament and, indeed, which amendments to Bills are tabled.

To some extent the Clerks of your Lordships' House in the Public Bill Office have a veto in that in certain instances they can refuse to accept amendments because they do not fall within the Long Title or because they are in similar terms to amendments which have been debated and voted on at an earlier stage. I understand that in some instances the view adopted by the Public Bill Office is one which may not be particularly welcomed by the Government, and on other occasions it may not be welcomed by members of the Opposition parties. However, it is respected as a necessary and valuable procedure for regulating the affairs of your Lordships' House. So it may be wrong to rule out the presiding officer having an absolute veto, as the noble Minister rather suggested in his speech was the Government's intention.

So far as this afternoon is concerned, I would be content to allow these amendments to be accepted, but I hope that before any amendments are tabled in another place, and before the Government decide what view they should adopt when this Bill returns to another place, it may be possible for my comments to be given further consideration; and as always I would be happy to discuss the matter further with the noble Minister.

The Earl of Mar and Kellie: My Lords, the noble and learned Lord, Lord Mackay of Drumadoon, is right. The Public Bill Office does have a veto, and I have enjoyed being in receipt of one on more than one occasion. I think I am content with the amendment because it is important that the presiding officer should form a view about whether the proposed legislation is intra or ultra vires. I suspect that in most cases it is unlikely that a Bill will be introduced which is wholly ultra vires and that this is a notice being served on the person proposing the legislation that they should get it sorted out during the process of scrutiny.

Lord Sewel: My Lords, as regards the point made by the noble and learned Lord, Lord Mackay of Drumadoon, I wish to make it absolutely clear that Amendment No. 14 does not breach any convention. It would apply irrespective of the decision on the reversal of the defeat suffered by the Government previously. So, no matter what happens in relation to that separate clause, we should still seek the provision in this clause. The amendment simply ensures that the parliament has the presiding officer's views on the vires of any Bill. I

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had hoped to be of some help to the House in indicating the way the Government's thinking was going; I have learnt my lesson.

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