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Baroness Ramsay of Cartvale moved Amendment No. 116A:

Page 59, line 40, leave out ("to which this sub-paragraph applies") and insert ("belonging to a Minister of the Crown or government department").

The noble Baroness said: I beg to move Amendment No. 116A. I shall speak also to Amendments Nos. 116B to 116E, 175A, 271A, 271B, 271D to 271J, 271L to 271P and 292G to 292N. The amendments are intended to improve the provisions of the Bill dealing with transfer of property liabilities. Generally, these amendments cover the clauses in the Bill providing for transfer of property and liabilities from the UK government to the Scottish ministers, to the Lord Advocate and to the Scottish Parliamentary Corporate Body. A new provision is also made providing a mechanism for the transfer of property and liabilities from the Scottish executive to the UK government where the functions are also transferred.

While the amendments are of a generally technical nature, they simplify the transfer of property process. There will also be consequential amendments to

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Clauses 101 and 103. As we propose to make other amendments to these clauses, the amendments will be tabled later as a package.

I move these amendments formally. If Members of the Committee wish to ask any questions about specific amendments, I shall of course be prepared to answer them.

Lord Mackay of Ardbrecknish: I would not have stopped the Committee if the noble Baroness had not indicated that we would be getting even more amendments. We have already had one amendment today which was a tinge on the late side, but welcome nonetheless. If anything, all these amendments, with more to come, make my case in the very first debate about the need for a revising chamber in the Scottish parliament.

As to Amendment No. 116E, when subordinate legislation is passed in UK legislation, normally the terminology is something like "The Secretary of State if he considers it appropriate to do so", etc. It actually says "The Secretary of State" or "the Minister". I do not think I have ever come across legislation which has just said "the person". After all, one of our arguments earlier today concerned whether a provision should read "the Secretary of State may" or "the Secretary of State shall". I shall not argue about "may" and "shall" in the first line of Amendment No. 116E, although the temptation is there. What does "the person" mean? Is it a Minister? If it is a Minister, why does it not say so? Is it a member of the assembly--I have lapsed into Welsh-speak there? Is it a member of the parliament? If so, why does it not say so? Is it to be an officer of the parliament? Is it to be an official? I just wonder who is "the person" making the legislation. It strikes me immediately as very odd terminology.

I have no doubt that one will come across one or two other bits and pieces, but what I have said is an indication that we need the ability to scrutinise and to ask questions about these matters. I hope that the noble Baroness can give me some help on "the person".

Lord Mackie of Benshie: I was also struck by Amendment No. 116E; not so much by "the person" but by what he had to do,

    "to enable the corporation to exercise its functions or to facilitate their exercise or in connection with their exercise or proposed exercise".

Are all those definitions necessary?

Baroness Ramsay of Cartvale: As a non-lawyer, I very often wonder whether all the words and phrases in these clauses are necessary. As to the question of what does "the person" mean, again as a non-lawyer, a person means a person. This is an open power. The legislation can be made by either a Minister of the Crown or by Her Majesty. Hence it is just "the person". One does not need to define whether it is the Minister. A person is a person. I am sorry that that does not please the noble Lord, Lord Mackay of Ardbrecknish. No doubt he is about to tell me why.

Lord Mackay of Ardbrecknish: It is partly because I did not hear who the "or" was--"a Minister of the

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Crown or". I got the impression that she fumbled over that. It is a little uncertain. I am even more puzzled, having listened to that explanation.

The Government cannot just say "a person" can do this. It must be a person with some standing. They must have some idea who "the person" is. Amendment No. 271G refers to "the person making the legislation". Either a Minister of the Crown makes the legislation or the parliament makes the legislation. Unless there are some other "persons" who are going to make the legislation, I cannot conceive of anyone other than those two groups; and if it is one of those two groups, it should say so on the face of the Bill.

Baroness Ramsay of Cartvale: The legislation can be made either by a Minister of the Crown or Her Majesty by Order in Council. That is why the provision states "the person".

Lord Rodger of Earlsferry: If it is not a Minister of the Crown, upon whose advice does Her Majesty make the Order in Council? It must surely be one or the other. Her Majesty does not make these orders unless advised. It must therefore be on the advice of a Minister of the Crown. It is one or the other.

Baroness Ramsay of Cartvale: Her Majesty, by Order in Council, makes her order on the advice of a Minister; or it could be a Minister of the Crown on his own authority.

Lord Mackay of Ardbrecknish: Perhaps I may suggest that, as we are going to get another batch of amendments on this subject, the Government should consider amending this provision and saying "Ministers of the Crown or Her Majesty by Order in Council". That would make it perfectly clear and it would not be, as it appears to be on the face of the Bill just now, any Tom, Dick or Harry.

On Question, amendment agreed to.

Baroness Ramsay of Cartvale moved Amendments Nos. 116B to 116E:

Page 59, line 43, leave out ("to which this sub-paragraph applies") and insert ("belonging to a Minister of the Crown or government department").
Page 59, leave out lines 46 to 49.
Page 60, line 3, after ("Crown") insert ("or government department").
Page 60, line 4, at end insert--
("( ) Subordinate legislation under sub-paragraph (2) may only be made if the person making the legislation considers it appropriate to do so to enable the corporation to exercise its functions or to facilitate their exercise or in connection with their exercise or proposed exercise.").

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

Clause 21 [Standing orders]:

The Earl of Balfour moved Amendment No. 117:

Page 10, line 22, at end insert--
("( ) Where the Parliament makes or remakes standing orders, it shall publish them.

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( ) Where the Parliament revises standing orders (without remaking them as a whole), it shall publish either the revision or the standing orders as revised (as it considers appropriate).").

The noble Earl said: All persons connected with the parliament should be able to obtain a copy of standing orders. That should also apply to the availability of any revised standing orders. This amendment is grouped with others. I shall leave my noble friend Lord Selkirk to speak for himself.

As regards the amendments in Schedule 3, it is necessary to make the proceedings of parliament public knowledge except where standing orders provide otherwise. As regards Amendment No. 120, reporting of the proceedings should be done as soon as possible. Amendment No. 121 refers to the fact that members of the parliament should not be left in the dark over any proceedings which are either to take place or have taken place. Those proceedings should, in general, be made available to the citizens of Scotland.

Clause 70 of the Government of Wales Bill, entitled "Openness", is an extremely good clause. So far during the passage of this Bill I have had the rather unfortunate feeling that the present Government are not all that keen on everything being as open as I would like it to be.

The next amendment is Amendment No. 141. Members of the parliament must be able to obtain the documents, and those documents must be available for the general public and there must be provision for circumstances where there should be charges. There will be a very similar type of provision in most local government legislation. Again, that is taken from Clause 70 of the Government of Wales Bill. It is needed in the Scottish Bill because of the points that I have raised. I beg to move.

Lord Selkirk of Douglas: I shall speak briefly to Amendment No. 118. It relates to the well-known case of Pepper v. Hart which relies entirely on Hansard. It permitted reference to parliamentary materials where legislation is ambiguous or obscure, or leads to an absurdity; the material relied on consists of one or more statements by a Minister or other promoter of the Bill together if necessary to understand such statements and their effects; and the statements relied on are clear.

That case is binding on Scotland only in respect of Hansard reports. What the amendment seeks to do--and it may well be necessary--is to extend the advantages of Pepper v. Hart to the Scottish parliamentary record. There is now no provision for making use of the recording and broadcasting of parliamentary proceedings. This amendment would rectify that.

The case of Pepper v. Hart is in (1) All England Reports [1993] at page 42. At page 64, in obiter dicta, the noble and learned Lord, Lord Browne-Wilkinson, made clear his view that there are sound reasons for making a limited modification to the existing rule unless there are constitutional or practical reasons which outweigh them. Subject to the privileges of the House of Commons, references to parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal

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meaning of which leads to an absurdity. But even in such cases reference in court to parliamentary material should be permitted only where it discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.

The noble and learned Lord said he could not foresee that any statements in Parliament other than those of the Minister or other promoter of the Bill would be likely to meet those criteria. All of those statements suggest that more conditions would have to be met than those indicated in his reasoning. He added that it was important that the judge refrain from impugning or criticising the Minister's statement or reasoning, which shows a suitable respect for Ministers of the Crown. I hope that the Minister will look sympathetically at this particular amendment that may be of assistance to those who seek to interpret legislation that is far from clear.

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