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Lord Mackay of Ardbrecknish moved Amendment No. 129:

Page 62, line 5, at end insert--

("Scrutiny of delegated legislation

The standing orders shall include provision for the exercise of appropriate control by the Parliament over the passage of delegated legislation created by a Scottish Minister by virtue of this Act or under powers conferred by the Parliament.").

The noble Lord said: I beg to move Amendment No. 129. This amendment is about the scrutiny of delegated legislation. Under governments of all political parties the amount of delegated legislation has increased enormously. In this House we have set up a Select Committee on Delegated Powers and Deregulation. Indeed, I was one of its founder members. Then I fell to be one of its victims when some of my legislation was called into question by that committee. I have to say in my defence that I immediately took on board what that committee said and tabled suitable amendments.

That Select Committee looks for Henry VIII clauses in particular, and tries to judge, and to point the House in the direction of, the correctness of the chosen route for the approval of secondary legislation. I refer to whether it should be by the affirmative procedure or the negative procedure. Occasionally the committee tells Ministers and the House that perhaps a power is a Henry VIII-type power and that rather than using the negative procedure, approval should be by means of the affirmative procedure. I think I can safely say that the previous government very much listened to what the committee said and that so far this Government have done likewise. However, that is just one aspect of this. I refer to looking at powers as they are constructed in primary legislation.

This amendment deals with what we do with delegated legislation when it comes before a parliament. In this House we have a convention not to divide. The noble Earl, Lord Russell--he is unfortunately not in his place although I saw him earlier--has found some ingenious ways round that convention without actually breaking it as I also know--not, I am happy to say to my cost as I always managed to win, but at least it caused a little trouble.

Under the Statutory Instruments Act 1946, both Houses must consider all affirmative orders. A huge number of negative instruments are laid before Parliament and never discussed. The figure runs into hundreds in a Session. The House, of course, has a right to discuss them as we have 40 days in which to table a prayer. In the other place, if it is agreed to have a debate (through, I suspect, the usual channels) they are Standing Committee debates of an hour and a half. Noble Lords who were once Members of the other House will remember some happy hours and a half dealing with secondary legislation. The Joint Select Committee of both Houses considers statutory

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instruments as to the form in which they are and the legal propriety. The financial ones are laid before the Commons alone and treated by a Commons committee.

Lord Renton: I am grateful to my noble friend for giving way. It is important that he should stress that it is a question of whether they are ultra vires, within the power, that that joint committee has to consider above all.

Lord Mackay of Ardbrecknish: I am grateful to my noble friend, who knows a great deal about these matters. By "legal propriety" I meant that they are within the vires of the original Act. My amendment does not lay down what should be the appropriate controls. I am content that the detail should be left to the Scottish parliament. It may wish to use a method different from the one used here. It might be too much to hope that it would use a method which would improve the scrutiny of secondary legislation, and that more secondary legislation might be scrutinised by the Scottish parliament than is scrutinised here. That might come about, because the Scottish parliament will obviously not have as much as the other place does. One can only hope.

I am not laying down the details; I am merely saying that the:

    "standing orders shall include provision for the exercise",

of such delegated legislation, when the Scottish parliament comes into being. It is an important matter. Many Members of the Committee take part in serious debates on legislation on the propriety of the Government seeking powers via secondary legislation. Part of that argument is always the lack of control by both Houses of this Parliament of secondary legislation. I hope that the parliament in Scotland might do rather better. I beg to move.

9.15 p.m.

Lady Saltoun of Abernethy: We should not forget that this Holyrood parliament will not have a second chamber. This is an important amendment which should receive serious consideration by the Government.

Lord Hope of Craighead: The amendment touches upon the area of judicial scrutiny as well as parliamentary scrutiny, because if there is a defect in the delegated legislation, because it falls outside the competence of the parliament--I am looking particularly at Schedule 6 which lists the devolution issues--the legislation will be vulnerable to attack. I think that I am picking up the point made a moment ago by the noble Lord, Lord Renton: one of the crucial points of scrutiny is to scrutinise the vires of the delegated legislation.

In the case of the Scottish parliament, that will raise a number of complex issues affecting European Community law, human rights law and the rights of the Scottish parliament itself. Anything that could be done to ensure that delegated legislation was as secure as possible against challenge should be done. In that connection, I was struck by a point made by the noble

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and learned Lord the Lord Advocate when Clause 1(4) was being discussed. He may well remember that the noble and learned Lord, Lord Simon of Glaisdale, was suggesting that that clause was unnecessary. If I picked up correctly the reply made by the noble and learned Lord it was that it was desirable to include that subsection in Clause 1 to ensure the provisions passed by the parliament were as secure as possible against attack.

I support entirely that philosophy. The amendment falls into that category. It is a mechanism which will tend to make the delegated legislation as secure as possible against attack. Some steps have been taken in the Bill to try to provide protection. I can see in paragraph 2 of Schedule 6 a provision which attempts to deal with the possibility of frivolous or vexatious complaints. It may be difficult for a court, when faced with a complaint challenging delegated legislation on the ground of lack of vires, to say immediately that that complaint is frivolous or vexatious. My concern is that delegated legislation may be subject to question and cause uncertainty. The amendment is a step at least in the direction of securing certainty.

Lord Selkirk of Douglas: I wonder whether in answering the amendment the Minister could turn her attention to the earliest date when the standing orders could be published. I am referring in particular to the draft standing orders. Will the Minister tell the Committee whether the draft standing orders are now in existence? Obviously the Government would wish to take into account the views expressed in Parliament and the wording of the statute. It would be of great help if the Committee could be told the earliest possible date that they could come into existence. In deciding such matters, the Scottish Parliament will want to have draft standing orders before it before it can approve them and before they receive the force which standing orders approved by Parliament receive. If the Minister can enlighten us on this point, it would be a great help.

Baroness Ramsay of Cartvale: My Lords, we have had now a number of debates about what it is appropriate for this Parliament to require the Scottish parliament to include in its standing orders. Amendment No. 129 raises yet another point on what is becoming familiar ground.

We stated in paragraph 9.1 of the White Paper that there should be a minimum of legislation and wherever possible we would leave it to the Scottish parliament to decide for itself what its procedures should be. While the Bill requires standing orders to address a number of aspects to do with the passage of primary legislation, it is, quite properly in my view, silent on the procedures for secondary legislation.

However, I agree entirely with the noble Lord, Lord Mackay of Ardbrecknish, that it is important that the parliament should have appropriate control over the passage of delegated legislation. I do not think that anyone would dispute that. I agree with the importance that the noble and learned Lord, Lord Hope, stressed, in his intervention on the amendment. Indeed, the

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amendment reflects a suggestion made by the Select Committee on Delegated Powers and Deregulation--in which the noble Lord, Lord Mackay of Ardbrecknish, has such a special interest--which drew attention to the Bill's lack of prescription on this point. Noble Lords will have noted that the report of the committee was generally favourable. On this particular point the committee accepted that,

    "it will be for the Parliament to decide in the case of each new delegated legislative power what is the right measure of scrutiny and control".

It did not make a recommendation but suggested that,

    "the House may wish to consider whether Schedule 3 (Standing Orders) should be amended to make plain that Standing Orders will, in fact, address the issue".

I hope that the noble Lord will forgive me if I repeat something which has been said a number of times now: that this new parliament will, we believe, without doubt be a responsible body. It must be right that the Scottish parliament is able to decide its procedures for itself. Since we are devolving power to the parliament, we are anxious to allow the parliament the discretion to exercise this power and we think we should trust it to exercise it properly.

Various provisions in the Bill envisage that the parliament will make provision for the scrutiny of legislation. For example, Clause 106 translates references to procedure at Westminster to procedure in the Scottish parliament for subordinate legislation-making powers which will transfer to the Scottish ministers. But we felt that the detailed parliamentary procedures for the subordinate legislation were better left for the Scottish parliament to devise.

The noble Lord, Lord Selkirk of Douglas, asked me about the publication of draft standing orders. There are no draft standing orders at present in existence because the consultative steering group which we have now talked about on various occasions, chaired by my honourable friend Mr. Henry McLeish with representatives of all the Scottish political parties, is still meeting on that subject. It is expected to report by the end of December. The Secretary of State will then prescribe an initial set of orders which will be available next spring.

I am sure that we can rely on the parliament to make provision for the scrutiny of subordinate legislation in its standing orders. The Select Committee made only one recommendation. It drew to the attention of the House the extent of Henry VIII powers and the suggestion that the affirmative procedure would be appropriate for the exercise of these powers. We are giving careful consideration to what the Select Committee said and we will certainly return to the issue when we consider Clauses 101, 102 and 103, which deal with subordinate legislation.

However, I do not wish to imply that the Government are intransigent on this matter. We are certainly willing to look at it again and tell the House how we feel at the next stage of the Bill. I invite the noble Lord to withdraw his amendment.

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