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Lord Simon of Glaisdale: My Lords, what else could "standing orders" mean--standing orders of the House of Commons, of the House of Lords, of a county council? One has only to read the Bill to see that "standing orders" can only mean standing orders of the parliament. This is yet another example of overloading a Bill with a whole lot of unnecessary verbiage.
Baroness Ramsay of Cartvale: My Lords, as a layman, I am inclined to agree. However, parliamentary draftsmen think otherwise. They wish it to be absolutely clear that it means standing orders of the Scottish parliament. I commend the amendment to the House.
On Question, amendment agreed to.
Lord Hardie moved Amendment No. 50:
The noble and learned Lord said: My Lords, this is a drafting amendment which is intended to clarify what is meant by the reference to "administrative law" in the definition of Scots private law in Clause 126(4) as meaning the "judicial review of administrative action". I beg to move.
On Question, amendment agreed to.
Clause 127 [Index of defined expressions]:
Baroness Ramsay of Cartvale moved Amendment No. 51:
On Question, amendment agreed to.
Baroness Ramsay of Cartvale moved Amendment No. 52:
The noble Baroness said: My Lords, as my noble friend Lord Sewel indicated at the end of the Report stage, this technical amendment is to correct a small error in Clause 130 to ensure that only the provisions in paragraph 23 of Schedule 8, amendments to the Insolvency Act 1986 which deal with disqualification of members of the Scottish parliament, come into force immediately on Royal Assent, and not other provisions of that paragraph dealing with the functions of the Registrar of Companies in Scotland, the Assistant Registrar of friendly Societies for Scotland and the Accountant in Bankruptcy. I beg to move.
On Question, amendment agreed to.
Schedule 1 [Constituencies, regions and regional members]:
Viscount Thurso moved Amendment No. 53:
The noble Viscount said: My Lords, sitting on these Benches, these are words that I do not usually hear myself say, but these are "drafting amendments of a minor and technical nature". I hope that in making that statement I have not cast a fly over the noble and learned Lord, Lord Mackay of Drumadoon. These amendments are consequential on the amendments that were accepted on Report. If one looks at Clause 85, one sees that it refers to exemption from jury service, which clearly has nothing to do with membership of the Scottish parliament, whereas Clause 86 has to do with representation at Westminster.
Amendment No. 54 relates to what was merely a slip of the pen. The sub-paragraph should have read, "2005", instead of "2003". I understand that the Government have indicated that they are willing to accept these amendments. I beg to move.
Lord Hardie: My Lords, the Government have no objection to these amendments. We see them as part of the package of amendments that noble Lords made to Schedule 1. However, I should make it clear that, while
On Question, amendment agreed to.
Viscount Thurso moved Amendment No. 54:
On Question, amendment agreed to.
Schedule 3 [Standing orders--further provision]:
Lord Mackay of Ardbrecknish had given notice of his intention to move Amendment No. 55:
Page 60, line 37, leave out ("administrative law") and insert ("judicial review of administrative action").
Page 62, line 53, at end insert--
Standing orders Section 126(1)
Page 63, line 21, after ("23") insert ("(1) and (6)").
Page 64, line 33, leave out ("85") and insert ("86").
Page 65, line 2, leave out ("2003") and insert ("2005").
Page 68, line 41, at end insert--
. The standing orders shall include provision for the types of procedure to be followed by the Parliament for the confirmation, approval or annulment of subordinate legislation made by a member of the Scottish Executive.").
The noble Lord said: My Lords, since putting this amendment down, I have received a useful letter from the Minister which is lodged in the Library. I shall therefore not move it.
Lord Sewel moved Amendment No. 56:
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Simon of Glaisdale: My Lords, I have one question concerning "political parties". Is it envisaged that there will be no Cross-Benchers or independents?
Lord Sewel: My Lords, it is possible that there will be independents and Cross-Benchers and I do not believe that they are struck out by the wording. I indicated that the amendment was to clarify what "parties" meant. The distinction I sought to draw earlier today was to exclude wild and fancy dress.
On Question, amendment agreed to.
Schedule 4 [Enactments etc. protected from modification]:
Lord Sewel moved Amendment No. 57:
On Question, amendment agreed to.
Lord Sewel moved Amendment No. 59:
The noble Lord said: My Lords, Amendments Nos. 59 and 62 are the Government's amendments to ensure that Schedule 4 does not prevent the Scottish parliament from modifying Clauses 19(7) and 69(3). These clauses provide that the validity of any act of the presiding officer or a deputy is not affected by any defect in his election and that the validity of any act of the Auditor General for Scotland is not affected by any defect in his nomination by the parliament. The parliament was given power to modify other similar provisions inserted at Report through the amendments
Lord Simon of Glaisdale: My Lords, this is a whole group of amendments including one which has not been moved. They are almost a shining example of the over-elaboration, to which I ventured to refer earlier, so as to be almost incomprehensible.
As I understand it, paragraph 1(1) of Schedule 4 forbids the Scottish parliament from modifying the Act. Subparagraph (2) modifies subparagraph (1) by allowing it to modify certain provisions. I cannot make head or tail of why the provisions are included or are to be added or taken out. This provision deals, I believe, with the defect in the election of the presiding officer or his deputy. Is that provision necessary at all?
There is a doctrine of the English common law whereby an officer, even if he is defective in his appointment, nevertheless can act validly as an officer de facto even though not de jure. That is not frequently relied on. It was drawn attention to in an article by one of the greatest common lawyers of the Commonwealth, the late Sir Owen Dixon, the Chief Justice of Australia. I do not know whether that is part of the Scottish common law. Perhaps the noble and learned Lord the Lord Advocate can tell us or perhaps write to me later if he does not have the information at his fingertips as I did not give him notice of my question.
There is also the question of how it is intended that this provision should be modified. As I said, paragraph (1) seems to say that the provision may not be modified. Paragraph (2) derogates from that and sets out the power to modify. Now we have an amendment which derogates from paragraph (2). If one wanted a really complicated provision that would be designed to mislead and mystify every reader of the statute book, that could hardly be better exemplified than by this amendment. Is the intention that the Scottish parliament may modify Clause 19(7), as it will be; and if so, how and why?
The same question arises on the other government amendment, Amendment No. 62. That provision relates to the Auditor General and says that he may act validly notwithstanding any defect in his appointment. Is that necessary? Would he not be an officer acting validly de facto? I may say that the leading case on this branch of the law is the decision by the New Zealand Court of Appeal, which went so far as to say that the judicial act of a judge invalidly appointed, including his jurisdiction in criminal cases, was nevertheless valid because he was an officer de facto even if not de jure.
I come to my second question. As it is intended, I presume, that the Scottish parliament may not modify Clause 69(3), why is that provision now added? I have not dealt with the amendments tabled by the Opposition but the purpose of many of them appears to be equally difficult to understand. Perhaps I should leave that matter until they are formally moved. In the meantime, I should be most grateful to have an answer to my questions on the two government amendments.
Page 69, line 22, after ("of") insert ("political").
Page 70, leave out lines 33 and 34.
Page 70, line 47, after ("17(5),") insert ("19(7),").
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