ANNEX 2
SCOTLAND BILL
Letter from Lord Sewel to the Chairman
I am writing to you in your capacity
as the Chairman of the Delegated Powers and Deregulation Committee
to inform you of a number of amendments to the Scotland Bill which
the Government are bringing forward in relation to powers to make
subordinate legislation.
The Delegated Powers and Deregulation
Committee reported on the Scotland Bill in the 24th report [HL
124] and made a recommendation in respect of powers which modify
primary legislation. The Government are happy to take this recommendation
on board.
The powers contained in the Scotland
Bill are, as the Committee recognised, necessarily complex, not
least because they deal with not one but two Parliaments. However,
we are conscious that the operation of clauses 101-103 of the
Bill has not been easy to understand for many Members of Parliament
and Peers during the debates on the Bill. We have therefore looked
to simplify the provisions where possible. There have also been
a number of changes to the subordinate legislation provisions
in earlier parts of the Bill, and the amendments take account
of these.
I attach the text of the amendments
which we have tabled, along with further related amendments for
Report [not printed]. The net effect of these is to replace
the whole of clauses 101-3 except for 101(1) which is retained
(but which is followed by four new subsections). For ease of reference,
the two new clauses which are to be inserted after clause 101
are referred to here as 101A and 101B. The effect of the amendments
is considered below.
Procedure
In the Bill as it stands, it is
not immediately obvious what procedure pertains to a particular
power to make subordinate legislation. It is necessary to determine
whether the power is listed in various subsections of clause 102
and whether the provisions of clause 103 apply. Only by determining
what combination of subsections applies is it possible to tell
what procedure is required. For example, orders under clause 29
are listed in clause 102(1) and (3), requiring them to be affirmative
instruments in relation to both Houses of Parliament and the Scottish
Parliament. Clause 102(5) then prevents the instrument from being
made without approval of the Parliaments. It is this combination
of a variety of subsections which seems to lead to some difficulty.
We therefore intend to replace
clauses 102 and 103. Subsection (1) of a new clause 102 will direct
the reader to a new Schedule 6A. This Schedule contains a table
which lists which of 11 "types" of procedure applies
to a particular power. The definition of these types of procedure
is then set out in paragraph 2 of the Schedule. Thus, to determine
the procedure pertaining to clause 29 orders, the reader looks
at the table and determines that Type A procedure is to be used.
He then goes to the description of Type A, which states that no
recommendation to make the legislation is to be made to Her Majesty
in Council unless a draft of the instrument (a) has been laid
before, and approved by resolution of, each House of Parliament
and (b) has been laid before, and approved by resolution of, the
Parliament.
We consider that this two-stage
process will prove much easier for a reader to understand to understand
and to follow.
In the case of "open powers",
the Committee made mention of the formula used in Schedule 2,
para 2(2) of the European Communities Act 1972 and you may wish
to note that the formula for the relevant procedure for open powers,
"Type G", is now the same as in that Act. The term "open
power" is also added to the Index of Defined Expressions
provided in clause 113.
Paragraph 3 of Schedule 6A provides
for special cases where the procedure applying to a particular
power is modified in certain cases. This is related to the power
to modify enactments and the recommendation of the Delegated Powers
Committee, as explained below.
Powers to Modify Enactments etc.
In the Bill as it stands, clause
101(5)-(7) provides that subordinate legislation made under certain
provisions of the Bill may modify (to a greater or lesser extent)
enactments, prerogative instruments or other documents. In some
cases, powers are also permitted to modify parts of the Scotland
Bill and provisions made under it. The Committee recognised the
special position of the Scotland Bill as regards powers for subordinate
legislation made under it to amend enactments.
In relation to the ability to modify
primary legislation, the Committee acknowledged that the Bill
has to make complex provisions and that powers to modify primary
legislation are necessary for the purpose. However, the Committee
invited the House to consider whether amendments to the Scotland
Bill should be permitted without the use of the affirmative resolution
procedure. It also suggested that provision such as that in the
Government of Wales Act might be adopted, requiring subordinate
legislation which amends primary legislation to be subject to
affirmative procedure.
We have considered these suggestions
and are happy to accept them. Paragraph 3 of Schedule 6A therefore
provides that, where subordinate legislation contains provisions
which textually amend or more precisely "add to, replace
or omit any part of the text of an Act (including [the Scotland]
Act)" and would otherwise be subject to one of the types
of negative procedure, the procedure is changed so that the instrument
is instead subject to affirmative procedure.
We have also given further consideration
to the terms of clause 101(6) and, for greater precision and clarity,
propose to separate out the powers contained in that provision.
Clause 101B(1) will provide a power for subordinate legislation
made under certain clauses to modify the Scotland Bill (except
Schedules 4 and 5) and subordinate legislation under the Bill.
The list of powers under which the Bill may be modified has been
reduced from that in clause 101(6). Special protection is afforded
to Schedules 4 and 5, which go to the heart of the devolution
settlement - clause 29 provides a bespoke mechanism for amendment
of these Schedules with the agreement of both Parliaments, and
it would be inappropriate to permit other subordinate legislation
under the Bill to amend them.
Clause 101A(5) will provide a power
for subordinate legislation under the Bill to amend any enactment
(other than the Scotland Bill or subordinate legislation made
under it), prerogative instrument, or other instrument or document.
In comparison with the former clause 101(6), this power has been
widened so that most powers to make subordinate legislation under
the Bill may make use of it. Although we expect that relatively
few powers will need to amend primary legislation, there is a
greater need for powers to modify secondary legislation or other
documents, and we consider that the greater flexibility which
clause 101A(5) offers is desirable. As described above, Schedule
6A provides safeguards on the use of this power in that any subordinate
legislation which textually amends an Act will be subject to affirmative
procedure.
Clauses 105 to 109 of the Bill
set out a number of general modifications to existing enactments,
instruments and other documents. These only apply in certain circumstances.
A new clause, to be inserted after clause 110, makes clear that
subordinate legislation under the Bill may provide that such a
general modification will not apply, or will apply with modifications,
in particular cases. For example, it is proposed that the Order
under clause 59, which provides for the transfer of certain Ministerial
functions to Scottish Ministers, will apply with modifications
the general modification set out in clause 105 which translates
references to a Minister of the Crown to include references to
the Scottish Ministers.
We consider that the power contained
in clause 101(5) allowing an Order in Council under clause 29
to modify any enactment (including the Scotland Act), prerogative
instrument or other document would be more appropriately located
in clause 29 itself. Amendments to achieve this will be brought
forward at Report, as indicated in the text attached [not printed].
Other amendments
Clause 97 is an open power but
under the present clause 102(1) subordinate legislation under
that clause is subject to affirmative procedure. It is considered
that it is more appropriate that, as with other open powers, there
should be a choice of procedure before the Westminster Parliament
- either negative or draft affirmative - ie Type G. However,
in line with the amendments described above, when such an instrument
textually amends primary legislation of the UK Parliament, then
it will be subject to affirmative procedure.
Clause 115(3) provides a general
power for subordinate legislation to make transitory or transitional
provision in connection with the coming into force of any provision
of the Scotland Act. This is an open power and subordinate legislation
under clause 115(3) may be made either by Her Majesty by Order
in Council or by a Minister of the Crown by order. Such an order
will normally be subject to Type G procedure, ie negative resolution
in respect of both Houses of Parliament unless the instrument
is laid in draft and approved by resolution of both Houses. Amongst
other things, we intend that this power will be used to provide
for appropriation of sums from the Scottish Consolidated Fund
for the financial year 1999-2000. Such orders would replace the
normal Westminster appropriation procedure. Clause 101(B1) has
been inserted to ensure that when the power is used in this way
it is exercisable only by Her Majesty by Order in Council, and
paragraph 4 of Schedule 6A provides that such orders are subject
to affirmative procedure. This has been done to reflect the special
importance of such appropriation orders.
Also in connection with transitional
arrangements, it will be necessary for the procedures applying
to certain orders to be amended until such time as the Scottish
Parliament assumes its powers. For example, the power in clause
14 for an Order in Council to specify office-holders who are to
be disqualified from membership of the Parliament will be subject
to affirmative resolution procedure in the Scottish Parliament
(Type D procedure). However such an Order would obviously need
to be in place in time for the first elections, and we therefore
require to make an initial Order which is subject to procedure
in the Westminster Parliament. The new provisions of clause 102(2)
and (3) are intended to make it clear that an order under clause
115(3) can modify the procedure which is to apply to orders under
the Bill to take account of this sort of situation.
We have also given consideration
to those powers which may require to be exercisable in relation
either to all cases to which the power extends or to particular
subsets of those cases. One area we have in mind is clause 99
(Scottish taxpayers for social security purposes) where we wish
to ensure that there is flexibility in the way that individuals
to which the clause applies are described. Subsection (3) of clause
101A therefore provides generally that a power may be exercised
in relation to all cases to which it extends, to those cases subject
to specified exceptions or to any particular case or class of
case. We are also making related amendments to clause 99 and to
clause 112(7) to clarify the operation of these powers.
Finally, we have taken the opportunity
to restructure the remaining material in clauses 101-103 to provide
for a more logical arrangement.
I trust that you agree that these
amendments provide an improvement on the provisions contained
in clauses 101-103 of the Bill, and that you are content that
the recommendation of the Delegated Powers and Deregulation Committee
will be implemented.
I am copying this letter to Lord
Mackay of Ardbrecknish and Lord Mackie of Benshie. I am also arranging
for copies to be placed in the Library.
Lord Sewel CBE
Parliamentary Under-Secretary of State
Scottish Office
2 October 1998
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