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Lord Mackay of Drumadoon: I wish my advocacy was always as effective. I am genuinely grateful to the noble and learned Lord for a constructive response. This is an important issue. It is a question of balance. I believe that at the present time the balance is not quite right. However, I am reassured that the matter will be looked at again and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clause 27 [Acts of the Scottish Parliament]:

Lord Mackay of Drumadoon moved Amendment No. 143:


Page 14, line 24, leave out ("section") and insert ("Act").

The noble and learned Lord said: In moving Amendment No. 143, I shall speak also to Amendments Nos. 145 and 146. I understand that the noble Lord, Lord Steel of Aikwood, wishes to add Amendment No. 144 to the grouping and I have no objection to that.

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Amendment No. 143 is a small drafting amendment to Clause 27(7) and its terms are self-explanatory. It seeks to delete the word "section" and substitute the word "Act" to make clear that nothing in the proposed Act, not just in the proposed section, affects the power of the United Kingdom Parliament to make laws for Scotland.

Amendment No. 145 is again a small drafting amendment and seeks to add, at the end of line 25 of subsection (7), the words,


    "which may not be amended or repealed by the Scottish Parliament".

In other words, it is proposed that the Bill, when it becomes an Act, makes it clear to all those who read it--not just lawyers, but also laymen--that this Parliament retains the right to make laws for Scotland which it can entrench in the sense that they are laws which cannot be amended or repealed by the Scottish parliament.

That may have some practical implications. I do not in any way wish to embarrass the noble Lord, Lord Sewel, by reminding him of the fact that this Chamber and another place have been engaged in a form of ping-pong over the past few weeks. It is not impossible to imagine that a few years down the line another form of ping-pong might emerge, though it may not be quite as fast a game as the one played in this Palace, where one stroke is played in one Chamber one day and the return stroke in the other Chamber the next day.

It is not impossible to imagine, even on the question of student fees, legislation emerging from the Scottish parliament which is unacceptable to a British government, it being in conflict with certain laws passed here. And who knows what may happen thereafter? That is a constitutional possibility. The second amendment would make clear to those who read Clause 27(7) that there can be no doubt that the final say will rest with this Parliament.

In Amendment No. 146 I set forth three additional subsections to be added to Clause 27; that is, subsections (8), (9) and (10). These are also self-explanatory. The new subsection (8) is based on provisions that one finds in the Human Rights Bill and is to the effect that,


    "So far as it is possible to do so, Acts of the Scottish Parliament and any instruments made under an Act of the Scottish Parliament must be read and given effect in a way which is compatible with Convention Rights".

The new subsection (9) will state that,


    "So far as it is possible to do so, Acts of the Scottish Parliament and any instruments made under an Act of the Scottish Parliament must be read and given effect in a way which is compatible with primary legislation enacted by Parliament".

For the same reason one finds the provision in the Human Rights Bill, it is a wish to resolve any conflicts between constructions which are compatible with convention rights and those that are not by favouring the former in preference to the latter. It seems to be sensible to have a similar rule for resolving conflicts between the construction of Acts of the Scottish parliament on the one hand and primary legislation passed by this Parliament on the other in a way which would avoid recourse to courts where that can be prevented.

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It is a reasonable presumption that, when the Scottish parliament is up and running, it will enact legislation which is in conformity with the existing body of statute law which, in the first years at least, will have been enacted entirely by this Parliament. It must be the presumption that unless it explicitly decides to repeal legislation passed by this Parliament as a matter of policy, it does not intend to do so by implication. That is what the new subsection (9) seeks to achieve.

The new subsection (10) is again relatively self-explanatory. It provides that,


    "In the event that it is not possible to read and give effect to an Act of the Scottish Parliament or an instrument made under an Act of the Scottish Parliament in a way which is compatible with an Act of Parliament, then the provision of the Act of Parliament shall prevail".

I believe that they will be useful additions to Clause 27. I beg to move.

Lord Renton: I wish to support my noble and learned friend with regard to these three amendments. We have now reached the three most important clauses of the Bill--I am glad to see the noble Lord, Lord Sewel, nodding in agreement--which define the legislative powers of the Scottish parliament. The detail is vast--around 30 pages of the Bill are involved--and is largely contained in Schedules 4 and 5.

As a background to the amendment moved by my noble and learned friend, I draw attention to Clause 27(7). That is to be welcomed because it makes it abundantly clear that the Parliament of the United Kingdom is to remain sovereign in legislative matters. In order to put that beyond doubt, we should accept the amendment which seeks to replace the word "section" by the word "Act" as proposed by my noble and learned friend.

As my noble and learned friend says, Amendment No. 145 is simply a drafting amendment. But Amendment No. 146 is fundamental for the removal of doubt. In England and Wales, as well as in Scotland, there will no doubt be controversy from time to time when it may be alleged that a conflict exists between the national law and the European Convention on Human Rights. It is right therefore that we should include the new subsection (8) in order to remove any such doubt. The new subsection (9) and the new subsection (10) are essential in order to clarify the matter. These three clauses are necessarily very complicated. It is right that Amendment No. 146 should be there in order to clarify matters.

Lord Kirkhill: I wish to support Amendment No. 146 and in particular subsection (8) which is contained within it. I should explain why I give my support. The position in the meantime, at least until 1st November, is that in Strasbourg there is a part-time commission and a part-time court. The countries which at present incorporate the European Convention on Human Rights are, in terms of their constitutional courts, fairly relaxed about the ultimate decision-making which occurs. They are fairly relaxed because at the moment the commission weeds out a good many of the complaints laid before it and the part-time court. Subsequently, because the court

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is part-time, it takes an inordinate length of time to reach a conclusion. The part-time commission and the part-time court will cease and a new full-time court will come into being. Clearly, it will form into chambers and so on, and there will be an element of vetting. Nevertheless, the decision-making process will speed up enormously. This country, having now incorporated the European Convention on Human Rights into its domestic law, will be faced with quick decision-making, or fairly quick decision-making, and will be asked for reasonably quick implementation. For that reason alone, it would seem to be sensible to accept Amendment No. 146.

Lord Hope of Craighead: I share the views of the noble Lord, Lord Kirkhill. However, there is a provision in Clause 28--subsection (8)--which, it might be said, has precisely the same effect as subsection (8) of the amendment. No doubt the Minister will make that observation in due course.

The reason for my intervention is to put in a plea that the various rules which the court is being asked to apply in construing legislation both in this Bill and in the Human Rights Bill be cast in the same terms. There is also a provision in similar terms in the Human Rights Bill. When I last saw it, it was not in identical terms. It would be helpful if the same terminology were to be used.

Subsection (9) of the amendment raises a point which might be worth considering. The width of the subsection is such as to give rise to the possibility that this Parliament might legislate on a matter such as education for England and Wales in a way that was not compatible with legislation which the Scottish parliament might wish to enact for Scotland. If the amendment is directed to primary legislation enacted by Parliament relating to Scotland, the possibility of collision could arise and may need to be addressed. However, as the clause is phrased at the moment, it seems so wide as to be likely to give rise to great difficulty about the powers of the Scottish parliament.

7.15 p.m.

Lord Sewel: I think it is better that we have a separate debate on Amendments Nos. 143, 145 and 146 and then have another debate on Amendment No. 144. Amendment No. 144 heads off in a totally different direction.

It was said that Amendment No. 145 is a relatively minor amendment--almost a drafting amendment. I do not share that view. Amendment No. 145, as it is written, strikes at the very heart of the devolved settlement. Let me make it clear at the outset that I consider that to be a major issue of principle in the legislation.

The Government cannot accept any of the amendments, although there may be some opportunity on Amendment No. 146 at least to seek the views of the parliamentary draftsman on the points that were made by the noble and learned Lord, Lord Hope of Craighead. Amendment No. 143 proposes an entirely unnecessary amendment to Clause 27(7). Clause 27 makes it clear

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that the parliament will be able to pass laws. Subsection (7) of that clause then goes on also to make it clear that the power thus conferred does not affect the powers of this Parliament to make laws for Scotland. There is therefore no need at all for any further clarificatory provision.

As I said, I consider Amendment No. 145 to be of significant importance because it would strike at the heart of the Scottish parliament's ability to enact legislation. The amendment would appear to be intended to prevent the parliament from amending or repealing legislation passed at Westminster even where that legislation relates to devolved matters. This would effectively undermine the devolution settlement itself. The Scottish parliament must have the competence to amend legislation passed at Westminster in respect of devolved matters and to the extent permitted by Schedules 4 and 5 in relation to reserved matters. If not, then I cannot see how devolution can work.

After all, we are creating a devolved parliament. We have to give it the competence to get on with the job of legislating in its appropriate areas. The Scottish parliament will be able to develop and build on the foundation of legislation already established at Westminster. In a way, that is its legislative inheritance. It should also be able to develop and adapt any future legislation which may, for good reason, be enacted by this Parliament.

Accepting the noble and learned Lord's amendment would fix any legislation enacted at Westminster in aspic. It would remain constant, unmoveable, unmodifiable, unamendable and unchangeable. It could not be changed by the Scottish parliament even if circumstances changed and consequential amendments were needed. Is the noble and learned Lord saying that the parliament should have no power to amend existing legislation on, for example, planning, housing or education because they are covered by legislation enacted at Westminster? That is what I meant when I said that the amendment as presently drafted strikes at the very heart of the devolved settlement.

The whole point about devolution is that this Parliament is entrusting the Scottish parliament to make laws for Scotland in respect of the devolved matters. That is the proposal which was endorsed by the Scottish people in the referendum and that has been the basis of this legislation. If there are disagreements about what matters the parliament should be able to legislate on, those should be addressed in the context of amendments to Schedules 4 and 5 to the Bill, not by legislating for a blanket ban on the parliament's legislative competence.

The noble and learned Lord expressed fears about legislation being enacted in Scotland which would not be passed at Westminster. But that is one reason why we are establishing a Scottish parliament, so that it can actually develop Scottish solutions to Scottish problems, not following Westminster all the time and not being bound by how Westminster wishes to legislate. Again, that is the underlying philosophy and basis of the devolved settlement.

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The noble and learned Lord suggested that we could end up in a situation where legislation was constantly being subjected to the ping-pong approach, constantly being amended by each parliament because they could not agree on the right way forward.


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