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Baroness Anelay of St Johns: The noble and learned Lord has given a fascinating exposition of the role of the Master of the Rolls. The post has been around for several centuries and I should have known more about it than I did. It is certainly still alive and kicking.

I look forward to the Minister explaining what the Government consider to be the legal position and whether they consider that the post is indeed a judicial office. I was intrigued by the parting shot of the noble and learned Lord that the Master of the Rolls sits as an ex officio judge in the Court of Appeal. If the post of Master of the Rolls is to remain listed and the Government consider it to be a judicial office, and may therefore wish to change it in the future, do they have any such intention at this time and, if so, what name are they considering?

I noticed that in introducing his amendment the noble and learned Lord referred to being sworn in as "Keeper" and Master of the Rolls. Will we have "keepers" in future?

Baroness Scotland of Asthal: I am again grateful to the noble and learned Lord for his erudite exposition and for his reminder of the historical route from which the post of Master of the Rolls derived. Let me say straight away, by way of reassurance, that the title of Master of the Rolls will not be changed. The Lord

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Chancellor does not at present have any plans to make an order altering either the title of the office or the way in which its distinguished holders may be styled.

The Government wished to include in the Bill a general power to alter judicial titles if the need arose for modernisation purposes. It may be the case that where the functions of a post, very often not stipulated by statute, change, it may be helpful to court users to change the name to reflect that. The Government took the view that it was not desirable to pick and choose between titles, however unlikely substantive changes to some of them may be—particularly the most senior.

The clause has been drafted to include all judicial titles in the Supreme and county courts. However, I am aware that the noble and learned Lord has not tabled the amendment, as he put it, because he wants to be "NIMBY" in relation to this matter, but rather because he believes that the title is not judicial. That is where we part company. Far be it from me to question the noble and learned Lord's wisdom on this matter but, although the Government accept that it does not have its origins in a judicial title, over the years the title has become one which most people would accept is appended to a judge.

There are numerous examples of that. Section 2(2) of the Supreme Court Act 1981 refers to the Master of the Rolls being one of the ex officio judges of the Court of Appeal; Section 10 of the same Act sets out the procedure and eligibility for appointment to a number of offices, including Master of the Rolls, under the title "Appointment of Judges of the Supreme Court", and so on. So, although it may not have started off with a judicial role, it certainly has one now.

It is fair to say, therefore, that it is commonly acknowledged that the Master of the Rolls carries out judicial functions and that, to use the term of the noble and learned Lord, being a judge is his day job.

Lord Donaldson of Lymington: It is not my day job.

Baroness Scotland of Asthal: The Master of the Rolls has an important judicial role. To return to my earlier point, it would not be right to single out this particular judicial title and exclude it from those listed in Clause 59. Given my reassurance in relation to the continuance of the title of Master of the Rolls, I invite the noble and learned Lord to withdraw his amendment.

Lord Donaldson of Lymington: I shall certainly withdraw the amendment for the time being, and probably for ever. My parting shot to the Minister is that if the Government want to do that, why do they not alter the heading of the clause from "Power to alter judicial titles" to "Power to alter titles"? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton: I beg to move that the House do now resume. In moving the Motion, I propose that we return to this business not before twenty-five minutes past eight o' clock.

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Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2003

7.25 p.m.

Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 12th December 2002 be approved [6th Report from the Joint Committee].

The noble Lord said: My Lords, as is usual with orders of this kind, copies of the Explanatory Memorandum are available in the Printed Paper Office.

The order before the House executively devolves responsibilities in a number of separate areas, giving additional responsibilities to Scottish Ministers. The Scotland Office has liaised between the relevant officials in the Scottish Executive and officials in the Department for Transport, the Lord Chancellor's Department and the Home Office. Policy on these issues has been agreed by all parties.

Noble Lords may also like to note that, where possible, the Government see advantages in laying omnibus orders under particular sections of the Scotland Act which contain two or more different policy areas. This maximises the efficient use of parliamentary time without, of course, lessening the opportunities to scrutinise the orders, either in your Lordships' House or in another place.

The draft order was laid before both Houses on 12th December. It was considered by the House of Commons Standing Committee on Delegated Legislation on 22nd January; it was looked at by the Justice 1 Committee of the Scottish Parliament and agreed to by the Parliament itself on 23rd January. Subject to parliamentary approval, it will be made at the Privy Council in February.

Before I deal with the substance of the draft order itself, it may be helpful to noble Lords if I say a few words about the power in the Scotland Act under which it is proposed to make this order and comment on some of the other powers in the Act that can be used to vary the devolution settlement.

The Scotland Act contains a number of ways in which the devolution settlement can be amended, including transferring or giving powers to the Executive to carry out a particular function or duty among other things. The Government see devolution as a process that requires monitoring and variation and always envisaged that the devolution settlement would be varied in ways that improve efficient and responsive government—not least because adjustments are required for legislation passed after the Scotland Act which often need to be implemented by secondary legislation. For instance, the order refers to Acts passed in 1999 and 2000.

This is not to say that the changes proposed in the draft order are in any way fundamental. But if, for example, it would be more appropriate for a function

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in or as regards Scotland to be provided by the Executive rather than the UK Government, it seems sensible to provide the Executive with the power to carry it out. Equally, other sections of the Act give order-making powers in relation to cross-border public authorities or for agency arrangements, where the UK Government might provide a function performed in or as regards Scotland on behalf of the Executive or vice versa. Noble Lords will therefore see that Scotland Act orders are not, in this order, bringing fundamental constitutional matters to the attention of Parliament. They are part of the on-going management of the boundaries of the devolution settlement. They follow identification of ways in which services can best be delivered north and south of the Border and, indeed, across it, or to implement new projects or policies as they apply under the devolution settlement.

Section 63 of the Scotland Act confers a power on Her Majesty to provide by Order in Council for any statutory or non-statutory function of a UK Minister of the Crown—so far as they are exercisable in or as regards Scotland—to be exercisable by the Scottish Ministers instead of concurrently with the UK Minister of the Crown. This mechanism is more commonly known as executive devolution.

Noble Lords will notice that orders made under Section 63 can apply to matters exercisable by the Scottish Ministers either instead of or concurrently with UK Ministers. They can also provide for UK Ministers to exercise a function only with the agreement of, or after consultation with, the Scottish Ministers—although this power is not being used in the draft order currently before the House.

Thus, orders under Section 63 include powers enabling the Government to transfer a power to the Scottish Ministers or to give them the power to carry out a function while the UK Secretary of State retains the power to carry it out as well. This flexibility is designed to ensure that the best way of providing a service or maintaining a responsibility can be found, based on the particular circumstances of each proposal.

The order before the House contains examples of powers both being transferred and running concurrently. It authorises the transfer of functions under certain provisions of the Taxes Management Act 1970 and the Access to Justice Act 1999, the Rehabilitation of Offenders Act 1974 and the Transport Act 2000. In respect of the function under the Transport Act 2000, which relates to the payment of a transport grant, the power will be exercisable concurrently by the Scottish Ministers and the Secretary of State for Transport. So the Secretary of State will continue to be able to exercise that function notwithstanding this order. With regard to the relevant functions under the Taxes Management Act 1970 and the Access to Justice Act 1999, and the Rehabilitation of Offenders functions, the effect of the order will be for the relevant functions to be exercisable, in or as regards Scotland, by the Scottish Ministers instead of by a UK Minister.

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The order transfers to Scottish Ministers the power to commence in Scotland Sections 101 to 103 of the Access to Justice Act 1999. This will have the effect of amending the Taxes Management Act 1970. The amendments concern immunity of and indemnity for general commissioners of income tax and their clerks in relation to legal proceedings arising from the execution of their duties. The amendments have already been implemented in England, Wales and Northern Ireland, where general commissioners are appointed by the Lord Chancellor. As the power to appoint general commissioners in Scotland has already been executively devolved to the Scottish Ministers, it is appropriate for them to implement the changes there, once the necessary powers have been given to Scottish Ministers by this order. The order also transfers to the Scottish Ministers powers under these amendments to make associated regulations.

What this part of the regulations is not concerned with is, of course, general taxation—which is very much a reserved matter. It relates solely to the operation of the immunity and indemnity for the general commissioners and their clerks provided for by the UK Parliament.

The order before the House also makes provision in relation to the Rehabilitation of Offenders Act 1974. This seeks to make life easier for people who have been convicted of a criminal offence and who have not re-offended. If someone does not receive a further conviction by the end of the prescribed rehabilitation period, then the conviction becomes "spent". In general, this means that such people do not have to declare it and they cannot be prejudiced by it.

Sections 4(4) and 7(4) of the Rehabilitation of Offenders Act 1974 allow subordinate legislation to be made that excludes or modifies the application of, or makes exceptions to, the regime for rehabilitation of offenders under the 1974 Act.

The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended) is made under Sections 4(4) and 7(4) of the 1974 Act. It sets out categories of employment involving a particular level of trust to which the 1974 Act does not apply and for the purposes of which convictions never become spent.

As the rehabilitation of offenders generally is devolved, the transfer of functions by the order gives certainty to the exercise of powers by the Scottish Ministers to make or amend the exceptions order under the Rehabilitation of Offenders Act. The Scottish Ministers will therefore have the power to amend all aspects of the exceptions order, even if an amendment may have an impact on a reserved area, such as financial services. The Home Office will continue to liaise with the Scottish Executive to ensure consistency, but this order allows Scottish Ministers to amend the exceptions order for Scottish purposes.

Noble Lords will want to know that any impact upon a reserved area is negligible. In the example I gave of financial services, for instance, the purpose of the exceptions order is to limit the protection given to those convicted of certain offences. Scottish Ministers would therefore be able to amend the exceptions order,

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for example, in relation to financial services occupations. It does not enable Scottish Ministers to amend legislation on financial services or other reserved areas.

In addition, Article 3 of the order transfers to the Scottish Ministers the power under Section 272 of the Transport Act 2000 to make certain awards of financial assistance to shipping services. As I have already explained, this power would be exercisable concurrently with UK Ministers. So the power can be exercised by the Scottish Ministers and the Secretary of State independently of each other.

Under current legislation the Scottish Executive is able to award freight facilities grants for water-borne services which begin and end in Scotland, but have no power to do so where one end of the service lies elsewhere within the UK or abroad.

The power contained in the order will principally enable Scottish Ministers to award freight facilities grant awards for short sea shipping movements that do not begin or end in Scotland. The additional function will thus enable the Scottish Executive to develop an integrated and more sustainable transport system for Scotland by, in this instance, encouraging the removal of heavy goods vehicles from Scottish roads. In exceptional circumstances, it is possible to envisage payment of a grant for a movement that both begins and ends outside Scotland, such as movements that take in Scotland as part of a ship's journey, provided it satisfies the Section 63 criteria of being "as regards" Scotland. However, each case would, of course, be judged on its own merits.

This is a discretionary grant scheme. It is understood from the Executive that any increase in costs associated with the transfer of powers can be catered for within existing resources. I beg to move.

Moved, That the draft order laid before the House on 12th December 2002 be approved [6th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

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