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Lord Sewel: My Lords, I am enormously grateful to the noble and learned Lord for asking those specific questions. The parliament will modify the provisions by an Act of the Scottish parliament. He is correct to assume that the amendment has the effect of giving the parliament the power to modify Clauses 97 and 69(3) which deal with the acts of the presiding officer or the deputy. This adds for the sake of completeness, and completeness only, to a range of modifying powers.
Lord Simon of Glaisdale: My Lords, my question was why.
Lord Sewel: My Lords, as to why, these are the last elements of a package of powers provided to the parliament to modify certain provisions in the Bill. For example, one relates to protections which received full support in your Lordships' House. The idea that the parliament should develop its own protections was welcomed by noble Lords opposite. It is because the provisions in Clauses 97 and 69(3) fall into that group of powers that theoretically it is sensible to allow the parliament to modify them. But for the life of me I cannot think of any circumstance in which the parliament would wish to modify those powers.
Lord Mackay of Drumadoon: My Lords, in the spirit of co-operation I suggest that one possible example is the need to consolidate legislation.
Lord Sewel: My Lords, I am enormously grateful to the noble and learned Lord. Perhaps that will do it.
Lord Simon of Glaisdale: My Lords, I can ask a question only before the noble Lord sits down, or at least settles down. Does he really think it is desirable that the House should be discussing questions of this intricacy to which the noble Lord confesses he does not know the answers at 20 minutes to 10 at night on the Third Reading of a lengthy and complicated Bill?
Lord Mackie of Benshie: My Lords, in spite of the distinction of the noble and learned Lord, is his question not out of order on Third Reading?
Lord Sewel: My Lords, I do not wish to make a comment of any kind on that matter. I believe that we must address the issues as they come before us at whatever time of the day and at whatever stage of the Bill they are brought up, and I am happy to do that to the best of my ability.
On Question, amendment agreed to.
[Amendments Nos. 60 and 61 not moved.]
Lord Sewel moved Amendment No. 62:
On Question, amendment agreed to.
Lord Hardie moved Amendment No. 64:
The noble and learned Lord said: My Lords, Clause 105 provides a power to make provision consequential on the Scotland Act by subordinate legislation. This amendment ensures that where subordinate legislation modifies a pre-commencement enactment or prerogative instrument it may provide that a function under that enactment or instrument is not transferred by virtue of Clause 53.
This power may be necessary where a provision in the order is consequential upon some provision in the Bill other than Clause 53 which devolves functions to the Scottish Ministers. The general intention is that amendments made by Schedule 8 and under Clause 105 will show what the position is immediately after devolution. This amendment ensures that the necessary powers are in place. I beg to move.
On Question, amendment agreed to.
Schedule 5 [Reserved Matters]:
Baroness Ramsay of Cartvale moved Amendment No. 65:
The noble Baroness said: My Lords, we have looked again at the layout of Part II of Schedule 5 and have concluded that improvements can be made to its layout to make it easier to read and to use. We therefore propose to make a number of printing changes to Part II of Schedule 5. The noble Lord, Lord Sewel, has placed in the Library copies of a letter sent to the noble Lord, Lord Mackay of Ardbrecknish, which includes a version of Schedule 5, including these changes. These will make the headings more eyecatching and introduce a numbering system which will give each section its own unique identifying number. They will also shorten Schedule 5 by a few pages, which I am sure the whole House will welcome.
Amendments Nos. 65 to 69 are linked with those changes and are purely drafting changes. I can give specific examples of those changes if noble Lords wish. I beg to move.
On Question, amendment agreed to.
Baroness of Ramsay of Cartvale moved Amendment Nos. 66 to 69:
On Question, amendments agreed to.
Lord Sewel moved Amendment No. 70:
The noble Lord said: My Lords, I think that this is the last occasion on which I shall appear before your Lordships saying that these are primarily technical amendments to the Bill. The Bill currently reserves the subject matter of the Data Protection Act 1984 and the subject matter of the 1995 EC Data Protection Directive. However, the 1984 Act is prospectively consolidated and repealed by the Data Protection Act 1998 which received Royal Assent on 16th July of this year. It is therefore appropriate to replace the reference to the 1984 Act with the 1998 Act and that is what Amendment No. 70 does.
However, much of the 1998 Act is not expected to come into force until the middle of next year. Amendment No. 71 therefore ensures that the amended reservation of the subject matter of the 1998 Act will be fully effective even if some of the provisions of the 1998 Act are not in force when Schedule 5 is brought into force. I trust that that is clear. I beg to move.
On Question, amendment agreed to.
Lord Sewel moved Amendment No. 71:
The noble Lord said: My Lords, the amendment has been spoken to previously. I beg to move.
On Question, amendment agreed to.
Lord Selkirk of Douglas moved Amendment No. 72:
The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 74 and 75.
Housing is a delegated subject to the Scottish parliament. One of the most important aspects of housing is the buying and selling of houses. In this process the work of estate agents is an essential element. Therefore, it makes sense to devolve estate agency along with housing. Furthermore, if solicitors are to be regulated by the Scottish parliament, then estate agents providing similar services should be subject to the same regulations issued by the Scottish parliament. It is in the consumers' interests that the regulatory regimes of similar services are, or should be, within the competence of the Scottish parliament. This would ensure a level playing field in competition law regulation in respect of identical or similar activities. If Scots civil and criminal law and Scots housing law are to be devolved, it surely makes sense to devolve regulation of estate agency as well, whether practised by solicitors or estate agents.
Amendment No. 75 is consequential on Amendment No. 72. The legal systems north and south of the Border are different. One of the perceived benefits of the Scottish system is that there is no gazumping in house selling and buying. It is therefore appropriate that Scots
Amendment No. 74 raises the issue of future developments with regard to the definition of the legal profession. Historically, notaries public and solicitors have been separate offices, although in many cases solicitors are also notaries public. Again, clarification is necessary. The amendment anticipates three developments: opportunities for foreign lawyers to establish themselves in Scotland to provide legal services; the creation of multi-disciplinary practices (partnerships between lawyers and non-lawyers); and the creation of multi-national practices (partnerships between Scots lawyers and foreign lawyers). It is therefore appropriate to anticipate possible change rather than create a potential need for the Scotland Bill to be amended in future. I earnestly hope that the Minister will accede to the amendments so that the Bill need not be amended in due course. I beg to move.
The Earl of Mar and Kellie: My Lords, these amendments have much to commend them. The anomaly being created within the estate agents in Scotland is difficult to understand. Having tabled similar amendments in Committee, I wonder whether the noble and learned Lord the Lord Advocate can still be content with the Bill's proposal to split parliamentary control of solicitor estate agents and non-solicitor estate agents.
Amendment No. 74 is forward looking. It refers to the likely possibilities of new legal businesses setting up in Scotland in its new constitutional form.
Page 70, line 48, after ("50,") insert ("69(3),").
Page 73, line 19, at end insert--
(". If any pre-commencement enactment or prerogative instrument is modified by subordinate legislation under section 105, a function under that enactment or instrument (whether as it has effect before or after the modification) is not transferred by virtue of section 53 if the subordinate legislation provides that it is not to be so transferred.").
Page 75, line 9, leave out from ("in") to ("when") in line 10 and insert ("it").
Page 75, line 10, leave out ("other entries") and insert ("illustrations, exceptions or interpretation provisions").
Page 75, line 11, leave out ("The other entries") and insert ("Any illustrations, exceptions or interpretation provisions").
Page 75, line 11, leave out (", unless otherwise indicated").
Page 75, line 12, leave out (""exceptions from reservation" does not generally") and insert (""exceptions" does not").
Page 76, line 18, leave out ("1984") and insert ("1998").
Page 76, line 20, at end insert--
("Interpretation
If any provision of the Data Protection Act 1998 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 79, line 13, at end insert--
("Regulation of particular practices in the estate agents' profession for the purpose of regulating that profession in the provision of estate agency services.").
9.45 p.m.
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