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The Earl of Mar and Kellie: My Lords, this amendment gives a rather harsh replacement to the original text. It is important that rule 4 be retained as an override over the previous three rules. My previous Western Isles amendment revolved around the powers in rule 4.

Lord Evans of Temple Guiting : My Lords, I appreciate that the wording in the amendment replicates that which is used in paragraph 7 of Schedule 2 to the Parliamentary Constituencies Act 1986. On this occasion I acknowledge that we cannot fall back on the argument that the provisions in this Bill are the same as those in the 1986 Act and therefore must not be changed.

The noble Duke suggested in Committee that rule 4 in the Bill appeared to be a slightly racier version of the similar provisions in the 1986 Act and he thought that not aiming to give full effect was less instructive and produced something that was confusing and nebulous. I am afraid that I have to disappoint him. This provision in the Bill is not materially different from that in the 1986 Act. As my noble friend Lord Filkin indicated to the noble Duke in his recent letter to him, having consulted the draftsman, there is no difference in meaning between rule 4 in the Bill and a similar rule in the 1986 Act. It is, as the letter said—the noble Duke
 
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has repeated it—simply drafted in a modern, legal style. I hope, given that there is no difference, that the noble Duke will not press his amendment.

The Duke of Montrose: My Lords, I thank all noble Lords who participated in supporting my amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2004

Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 20 May be approved [20th Report from the Joint Committee].

The noble Lord said: My Lords, with your Lordships' permission, we can conveniently consider two further instruments being made under powers provided by the Scotland Act 1998. They are the Scottish Public Services Ombudsman Act 2002 (Consequential Provisions and Modifications) Order 2004 and the Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004. It has become common practice to batch instruments being made under the Scotland Act to make the best use of scarce parliamentary time.

The first instrument is being made under Section 63 of the Scotland Act. The two further instruments are being made under Section 104 of the Scotland Act. Many noble Lords are familiar with these powers, which rather than relating to substantive policy issues are technical in nature. But I hope it will be helpful to outline briefly what the powers under the Scotland Act allow us to do when explaining the policy background to the orders. Before doing so, I should emphasise that the orders have been scrutinised by the Joint Committee on Statutory Instruments and the Lords Merits Committee. They have also been agreed to by the Scottish Executive and relevant Whitehall departments.

I turn, first, to the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2004, which is being made under the powers provided by Section 63 of the Scotland Act. The Scotland Act recognised that, in some cases, it would be appropriate for Scottish Ministers to be able to exercise executive functions in areas where primary legislation continues to be a matter for Westminster. That is the process known as executive devolution. It should be noted that executive, not legislative, competence is transferred under that process. In other words, the legislative competence of the Scottish Parliament is not varied where the Scottish Ministers are given power to carry out the function.

Section 63 of the Scotland Act allows functions, so far as they are exercisable in or regards Scotland, to be exercisable by the Scottish Ministers, instead of, or concurrently with, a Minister of the Crown. It also allows for functions to be carried out by a Minister of the Crown with the agreement of, or after consultation with, the Scottish Ministers.
 
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Orders made under Section 63 are also considered by the Scottish Parliament. This order was considered and agreed by the Scottish Parliament's Communities Committee on the 9 June. A Standing Committee in the other place considered and agreed the order on the 24 June. The order transfers functions in two distinct areas. The first relates to the approval of a co-operative housing association, whose registered office is in Scotland, in connection with a claim for tax relief purposes under Section 488 of the Income and Corporation Taxes Act 1988. The second concerns the executive devolution to Scottish Ministers of concurrent powers to make regulations for Scotland under Sections 4 and 6 of the Fireworks Act 2003.

I shall set out the content of these two parts of the order in a little more detail. Further information on the policy background and an explanation of what each article of the order does can be found in the Explanatory Memorandum, copies of which can be obtained from the Printed Paper Office.

Section 488 of the Income and Corporation Taxes Act 1988 provides that a co-operative housing association which meets the criteria set down in the Act can make a claim to the Inland Revenue for certain tax reliefs and exemptions.

At present, the function of approving an association for the purposes of Section 488 is carried out in Scotland by a Minister of the Crown. Before devolution, officials in the former Scottish Office had delegated authority from the Secretary of State to confirm approval to the housing co-operative and its accountants for the purpose of Section 488. However, this function is not within the competence of the Scottish Ministers.

Such approvals do not arise very frequently in Scotland—as little as one every six or seven years. However, it is expedient and sensible for these consents to be issued by the Scottish Ministers since, after devolution, the expertise and resources lie within the Scottish Executive. The Government and the Scottish Executive have therefore agreed that it is appropriate for this function to be transferred.

I should add that the order does not transfer the function of setting out the criteria against which a housing co-operative's eligibility is to be tested. That function will continue to be discharged by UK Ministers.

I hope it is helpful to noble Lords if I explain a further feature of this element of the order. Executive devolution requires the functions in question to be treated as exercisable in, or as regards, Scotland. To do that, the order uses powers under Section 30(3) of the Scotland Act. This power—commonly referred to as a "paving provision"—assists a transfer of function to the Scottish Ministers by specifying the extent to which the functions are to be treatable as exercisable in, or as regards, Scotland.

In this instance, the functions transfer to the Scottish Ministers only where the housing association's registered office is in Scotland. For the remainder of Great Britain, the function will continue to reside with UK Ministers.
 
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I hope it is helpful to your Lordships if I deal with one final aspect of this part of the order. In another place, a question was asked about whether a claim for tax relief could be retrospective. I should make it clear that the order before us applies only to applications which fall to be dealt with after the order comes into force. Any backdating would be in terms of the existing statutory regime, and not as a consequence of amendments made by this order.

The second area with which the Section 63 order deals is the Fireworks Act 2003. Noble Lords will recall that this is an enabling Act, which allows a Minister of the Crown to make regulations in a range of areas in relation to fireworks. The order before us will allow functions that could be currently exercised by a Minister of the Crown to be discharged also by the Scottish Ministers.

Section 4 of the Act provides that fireworks regulations can be made that include provision for prohibiting the supply, purchase, possession or use of fireworks during specified hours of the day or in specified circumstances. It also provides for exceptional dispensation from prohibitions to be made, if necessary, in the same regulations.

Section 6 of the Act provides that fireworks regulations may include provision prohibiting the operation of public fireworks displays unless specified conditions are complied with. These include the giving of notice and other information, the payment of required fees, training, and prohibiting persons from operating, or assisting in the operation of, displays if they are below a specified age. Section 6 of the Act also provides for exceptions to be made in relation to these conditions, and defines the term "public fireworks display".

The order enables the function of making these regulations to be exercisable by the Scottish Ministers. It also confers the function on the Scottish Ministers of certain powers under the Consumer Protection Act 1987, which have been applied to fireworks regulations by the Fireworks Act in relation to offences and enforcement. As stated in the explanatory memorandum, this function is transferred only in relation to Sections 4 and 6 of the Fireworks Act. The reason that only those functions, not all the functions in the Act, are being devolved is that the Act covers a complex mix of reserved and devolved areas. Some aspects of the Act are best dealt with on a GB basis or relate to reserved matters, such as consumer protection. The DTI and the Scottish Executive, who agreed the content of the order before us, will be liaising closely on those issues so there is no risk of conflicting regimes.

I turn to the orders being made under Section 104 of the Scotland Act. That section allows for orders considered to be necessary or expedient in consequence of any provision in an Act of the Scottish Parliament. Section 104 orders are usually concerned with modifying areas of law reserved to the UK Parliament or amending the law of England and Wales—and, in some cases, Northern Ireland—in
 
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consequence of an Act of the Scottish Parliament. By definition, it would be outside the competence of the Scottish Parliament to legislate in those areas.

As a result, Section 104 orders are considered at Westminster only. In this instance, the Scotland Act requires the orders to be subject to affirmative resolution, as they amend primary legislation. The two Section 104 orders before us were considered and agreed by the other place on 24 June.

The main purposes of both Section 104 orders are to remove spent references in the statute book to bodies which have ceased to exist, and to substitute or make provision for references to new bodies. Neither Section 104 order alters the underlying statutory regime in the legislation as amended.

The first order is made in consequence of the Scottish Public Services Ombudsman Act 2002. That Act of the Scottish Parliament is designed to streamline and improve the public sector complaints system in Scotland. It transferred to the Scottish Public Services Ombudsman (SPSO) powers previously exercised by the Health Service Commissioner for Scotland, the Commissioner for Local Administration in Scotland and the Scottish Parliamentary Commissioner for Administration.

A number of articles in the order remove references to the commissioners abolished by the 2002 Act and replace them with references to the ombudsman where necessary. Furthermore, the 2002 Act provides for the ombudsman to co-operate with ombudsmen and commissioners operating elsewhere in the UK in those areas relevant to those officeholders' interests. The draft order makes reciprocal arrangements with other commissioners and ombudsmen.

The order also makes provision in respect of the Government. The 2002 Act provides that no person is, or may be required, to supply to the ombudsman information relevant to proceedings of the Scottish Cabinet. The draft order makes similar provision in relation to the UK Cabinet.

Noble Lords will wish to note that that is not a new policy proposal. The statutory frameworks that supported the former Scottish parliamentary and health service commissioners contained similar provisions. Precedent therefore exists for recognising that circumstances may arise whereby either of those officers' work could require access to UK Cabinet papers in pursuance of their functions. The responsibilities of both those officeholders transferred to the SPSO.

Although it is anticipated that, in practice, the SPSO would rarely have cause to seek sight of UK Cabinet papers, it is sensible that such material should benefit from the protection given by previous ombudsman-related legislation.

The 2002 Act also provides that a member of the Scottish Executive may give notice in writing to the SPSO that documents and information on which the ombudsman has sought disclosure should not be disclosed, as to do so would be contrary to the public interest. The order makes similar provisions for Ministers of the Crown. However, the order does not
 
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undermine the existing regimes on disclosure of information as laid out in, for example, the Freedom of Information Act 2000.

In summary, the order as a whole addresses issues where the framework provided by the 2002 Act has a read across to matters outside the legislative competence of the Scottish Parliament.

Noble Lords will surely be delighted that I turn finally to the last order before us this evening. It is again being made under Section 104 of the Scotland Act, this time in consequence of the Water Industry (Scotland) Act 2002. The main purpose of this Act was to provide for the establishment of Scottish Water as the successor to three water and sewerage authorities in Scotland.

The effect of the order is to remove any references to the predecessor water and sewerage authorities in the enactments and subordinate legislation and to put references to Scottish Water in their place. It would be outside the competence of the Scottish Parliament to make the vast majority of modifications in the draft order. Thus this order is an exercise in making sure that the new devolved body is appropriately represented in the statute book. It also makes amendments to reflect the creation of water customer consultation panels by the 2002 Act.

Eagle-eyed noble Lords may have noticed from paragraph 5 of the Explanatory Memorandum that the draft order does include two modifications to the Transport Acts 1962 and 1968. That would be within the legislative competence of the Scottish Parliaments to make. It is not our usual practice to include any modifications in orders under Section 104 to matters within the competence of the Scottish Parliament. However, in this instance, these two modifications have been included, since there is no suitable vehicle before the Scottish Parliament in which they could be included and because we wish to see the statute book as tidy as possible to assist the user. I hope noble Lords will agree that this is an example of sensible and pragmatic partnership between the Government and the Scottish Executive.

These three technical orders are in our view a sensible, expedient and necessary use of the powers under Sections 63 and 104 of the Scotland Act and I commend them to the House. I beg to move.

Moved, That the draft order laid before the House on 20 May be approved. [20th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

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