Fifth Standing Committee on Delegated Legislation
Tuesday 15 June 1999
[Mr Roger Gale in the Chair]
Draft Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999
10.30 am
The Parliamentary Under-Secretary of State for Scotland (Mr. Calum Macdonald): I beg to move,
That the Committee has considered the draft Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999.
The Chairman: With this it will be convenient to consider the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999, the draft Scotland Act 1998 (Modification of Functions) Order 1999, the draft Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999, and the draft Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999.
Mr. Macdonald: We have before us today five draft orders under the Scotland Act 1998 for approval. They form an important part of the whole package that is required to deliver devolution for Scotland. Several orders require the agreement of this Parliament and the Scottish Parliament and they were debated and approved by the Scottish Parliament on 2 and 3 June.
For the convenience of the Committee, I shall briefly explain the orders. The Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999 is made under section 30(2) of the Scotland Act. The schedules are central to the definition of the legislative competence of the Scottish Parliament and schedule 5, in particular, lists the matters on which the Scottish Parliament cannot legislate. The order makes several modifications to the schedules to clarify the powers of the Scottish Parliament, the first of which is to devolve competence to legislate on the funding of political parties—a matter that the hon. Member for West Dorset (Mr. Letwin) raised yesterday in Committee. In future, such matters will be dealt with by the Scottish Parliament, which will be allowed to devise its own arrangements. I am sure that that meets with the approval of the Committee.
The order reserves the functions of the Secretary of State for Trade and Industry that he exercises through the Export Credits Guarantee Department. It clarifies the Scottish Parliament's legislative competence in freedom of information, it clarifies the reservation of health and safety matters and it introduces a minor exception from the reservation of interception of communications.
The Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 is a technical order. It provides for various functions to be treated as being, or as not being, exercisable ``in or as regards'' Scotland for various purposes of the Scotland Act 1998, in particular the transfer of ministerial functions. The order is required because the Scottish Parliament and the Executive have powers only over functions exercisable ``in or as regards'' Scotland. For most functions, it is clear that they are exercisable in or as regards Scotland, but the position may be unclear in some cases.
For example, when prisoners are transferred from one jurisdiction to another it may not be clear which Ministers can deal with matters such as parole. At present, prisoners sentenced in England or in Scotland continue to be subject to the English or Scottish system even if they are transferred to prisons across the border. The order will enable that system to continue. Other examples include the regulation of fishing, implementation of European Community obligations in agriculture, provision of student loans and interception of communications.
The order also paves the way for the Executive devolution order, which contains provisions for Scottish Ministers to be consulted on, or agree to, appointments of persons to United Kingdom or Great Britain bodies. It clarifies those cases when there may be some doubt whether a function will or will not be devolved.
The Scotland Act 1998 (Modification of Functions) Order 1999 is also a technical order. It is required to facilitate the transfer of functions to the Scottish Ministers under selections 53 or 63 of the Scotland Act. Not surprisingly, legislation has been drafted over the years without much thought as to how it would work in the event of devolution. The result is that not all the functions on the statute book that it is intended should be devolved to the Scottish Ministers are expressed in a way that will allow the mechanisms in the Scotland Act to operate on them. Section 106 therefore provides a power to modify functions or facilitate their transfer to the Scottish Ministers by virtue of the Scotland Act.
The Scotland Act 1998 (Transfer of functions to the Scottish Ministers) Order 1999 gives effect to the White Paper commitment that the Scottish Executive will be responsible for carrying out functions in areas in which law-making powers will be reserved. That is referred to as Executive devolution—the devolution of Executive functions where legislative competence continues to be reserved at Westminster. Any function of a United Kingdom Minister, insofar as it is exercisable in or as regards Scotland, can be executively devolved under section 63.
The order applies to statutory and non-statutory functions. It also provides for specified functions of UK Ministers to be exercisable only with the agreement of, after consultation with, or concurrently with the Scottish Ministers—whichever is the most appropriate.
I shall outline the key provisions of the order. Schedule 1 specifies the functions that are to be exercisable by the Scottish Ministers instead of by the UK Minister. Schedule 2 specifies the functions to be exercisable concurrently with the UK Minister. Schedule 3 specifies functions to be exercisable by a UK Minister only with the agreement of, or after consultation with, the Scottish Ministers. Schedule 4 specifies some non-statutory functions to be carried out by the Scottish Ministers instead of the UK Minister. The functions covered by the order are explained in detail in the guide to the order, which is available to the Committee. The substance of the order was available to hon. Members when the House debated the Scotland Act.
The Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 makes a variety of amendments to legislation to take account of the Scotland Act. The first consequential modifications order made amendments that came into force on 6 May and 20 May, in connection with the creation of the Parliament and the transfer of the Lord Advocate from the UK Government to the Scottish Executive, together with a small number of amendments that come into force on 1 July.
The order makes other consequential amendments that will come into force on 1 July. Those are broadly intended to reflect the statutory position after 1 July, when any relevant functions will have been transferred to the Scottish Ministers under section 53 of the Scotland Act. However, some provisions of the order will come into force immediately before 1 July to prevent ministerial functions under certain enactments from being transferred to the Scottish Ministers on that day: it is intended that those functions should transfer to Scottish Ministers in a slightly different way. That is achieved by making further consequential amendments in the order to those enactments that come into force on 1 July.
The draft orders, although technical in nature, are essential to the transfer of powers in the devolution settlement. They are also important to clarify and fully implement that settlement.
The Chairman: I remind the Committee that we have agreed to take all five orders together, so we may have a reasonably wide-ranging debate.
10.39 am
Mr. Oliver Letwin (West Dorset): If you imagine that this will be a reasonably wide-ranging debate, Mr. Gale, I fear that I shall be a nugatory contributor to it. The only order among the five that seems to be of any great moment, apart from the joy of de-legitimising the nonsense that occurred yesterday, is the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999. That is effectively a parallel to the transfer of functions order in Wales.
For the benefit of the Minister, I recall with some delight the occasion on which we discovered that its analogue in Wales managed in error to transfer power over the Brompton cemetery to the Welsh Assembly. I was unable to spot any equivalent defect in this order, so I came prepared to say that I could not see the slightest reason to spend further time on what seem to be admirably prepared and technically necessary measures.
I have been shaken to my foundations, however, by the arrival of my hon. Friend the Member for Faversham and Mid-Kent (Mr. Rowe), one of the most acute Conservative Members, who is not a member of the Committee. If he has come to bring us news of some blockbuster defect that I have wholly failed to spot, I may want to return to the fray. Barring that horrendous eventuality, I have nothing further to add except to congratulate the Minister's officials, who must have laboured mightily to produce such a great bundle of documents.
10.41 am
Mr. Andrew Rowe (Faversham and Mid-Kent): I am grateful to you for allowing me to say a few words, Mr. Gale. I want some clarification. When the powers are transferred under the European Communities Act 1972, will the United Kingdom Cabinet Minister hitherto responsible for agriculture be precluded from debating any of the great topics of the day, such as the effects of genetically modified foods, as they apply to Scotland? Will he be able to debate such matters only as they apply to England? If so, that seems a curiosity.
I want to be confirmed in my hope that issues that relate to the ombudsman and arose before this legislation comes into force can be referred to the ombudsman even though they will then relate to issues reserved to the Scottish Parliament. That is an important issue; as we know, referring matters to the ombudsman can take a long time. One hopes that the Minister will assure us that inquiries conducted by the ombudsman will not be stopped halfway to facilitate the transfer to the Scottish Parliament.
10.43 am
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