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Scotland Bill

9.1 p.m.

House again in Committee on Clause 27.

[Amendments Nos. 145 and 146 not moved.]

Clause 27 agreed to.

Clause 28 [Legislative competence]:

Lord Mackay of Drumadoon moved Amendment No. 147:


Page 14, line 26, leave out ("so far as") and insert ("to the extent that").

The noble and learned Lord said: In moving Amendment No. 147, I shall, with the leave of the Committee, speak also to Amendment No. 148. These are two drafting amendments which also probe to see that I correctly understand the policy which lies behind the provisions in Clause 28, and in particular the first subsection of that clause.

I understand the policy to be that, if there is conflict between any of the provisions of an Act of the Scottish parliament and the legislative competence of the parliament--in other words, if those provisions are outside the legislative competence--only the provisions that offend against the definition of that legislative competence will be affected and will fall to be quashed by the courts. Putting it another way, those provisions that are found to be outwith the legislative competence can be severed from the competent provisions of the Act of the Scottish parliament and it would not be necessary for the whole of such an Act to fall merely because one or more of its provisions offended against the provisions of Clause 28.

What I would imagine happening in such a situation is that, among any other orders that it may be necessary to issue, the court would pronounce an order quashing or setting aside the offending provision or provisions. I should be most grateful if the Minister would confirm that my understanding of the position is correct in so far as it relates to Acts of the Scottish parliament itself.

A related issue concerns the vires of subordinate legislation made by the Scottish executive and confirmed, where appropriate, by the Scottish parliament. This is a matter where the competency is dealt with by Clause 50(2) of the Bill. This is again an issue which could profitably be clarified at this stage. If any provisions of subordinate legislation made by a member of the Scottish executive are outwith the executive's competence--and this could arise because such provisions would be outwith the legislative competence of the parliament had the same provisions been included in an Act of the Scottish parliament--does that mean that the whole instrument of subordinate legislation falls, or is it only the offending provisions that are quashed and not enforced? It would be most helpful if the Minister could confirm the position.

It will be appreciated that Acts of the Scottish Parliament and secondary legislation made by the Scottish executive will be open to challenge on other grounds. Not all questions of vires will fall to be

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determined by reference to Clause 28 of the Bill. It would therefore also be helpful if the Minister could say whether the same approach would apply. If the subordinate legislation could be challengeable on other grounds, would the whole instrument fall, or would it be only the offending provisions that would fall?

In raising these matters, I assume that there is no intention on the part of the Government to restrict the grounds upon which subordinate legislation made by the Scottish executive may be challenged because it is outwith the devolved competence of the executive. I seek an assurance that it is no part of the intention of the Bill's provisions to interfere in any way with either the existence or extent of the exclusive supervisory jurisdiction exercised by the Court of Session, a matter which we may well require to look at in greater detail at later stages of the Bill. It would, however, be helpful if that could be confirmed at this stage as part of the response to Amendments Nos. 147 and 148. I beg to move.

Baroness Ramsay of Cartvale: The noble and learned Lord suggested that Clause 28(1) might be interpreted as meaning that if one provision of an Act of the Scottish parliament is outside the legislative competence of the Scottish parliament then the whole of that Act is invalid. The noble and learned Lord's Amendments Nos. 147 and 148 seek to clarify that it is only the specific provision in question which is invalid and not the whole of the Act.

However, that is what Clause 28(1) already provides. It says that,


    "An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament".

It does not say that an Act of the Scottish parliament is invalid if any of its provisions is outwith its legislative competence. An Act is invalid only "so far as" any provision is outwith the legislative competence of the parliament.

The wording of the clause has of course been considered very carefully, as has the amendment, and I am advised that the only way in which the clause can be interpreted is that it is the particular provision in question which is invalid and not the whole Act which is invalid. I must say that as a layman that is how I would read the clause. We do not believe that the form of words proposed by the noble and learned Lord--which would say "to the extent that" rather than "so far as"--would be any clearer.

I shall try to answer some of the direct questions put by the noble and learned Lord, Lord Mackay of Drumadoon. Where a provision of an Act of the Scottish parliament or of subordinate legislation is ultra vires, it is only that provision, to the extent to which it is incompetent, that is ultra vires and not anything surrounding it.

I hope that that reassures the noble and learned Lord that Amendments Nos. 147 and 148 are not necessary, though I accept his positive intentions in proposing them. However, the noble and learned Lord actually

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went wider than his two amendments in posing some of the questions in relation to the Court of Session. I should like to return to that at the appropriate part of the Bill or in some other way.

Lord Mackay of Drumadoon: I am grateful to the noble Baroness for her full reply, which completely meets the basic issue which I raised with these two amendments. The supplementary question which was tucked in as an extra was a difficult one and I can well understand why she would not wish to give a full response at this stage. However, it would be exceedingly helpful if a response could be sent by letter before we reach the subsequent clauses, in particular Clauses 92, 93 and that part of the Bill. It will be important there to have the Government's thinking before us as to the extent, if at all, it is intended that the Bill should interfere with the supervisory jurisdiction of the Court of Session.

In the light of that helpful response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 148 not moved.]

Lord Sewel moved Amendment No. 149:


Page 14, leave out line 33.

The noble Lord said: In moving Amendment No. 149, I shall speak also to Amendments Nos. 151, 153, 160, 161, 164, 165, 166A, 167, 167A to 167C, 168, 168A, 169, 169ZZA, 169ZA, 169A, 172, 173, 182, 204, 209, 259, 291A and 294.

The purpose of these amendments is to ensure that the Scottish parliament can legislate effectively about things which the White Paper intended should be devolved. At the same time, the amendments seek to ensure that there are adequate safeguards for those matters which the White Paper intended should be reserved.

The purpose of the amendments is essentially to clarify the operation of the legislation in this vital area. They do not represent a change of policy but they are rather complex and involve some quite difficult concepts. That, I am afraid is unavoidable. It is important, however, that Members of the Committee understand exactly what it is we are proposing and why and I hope that the Committee will bear with me therefore in what is a detailed explanation and exemplification of these government amendments.

The White Paper indicated that it was proposed to define the legislative competence of the Scottish parliament by listing the matters which were reserved. Everything not specifically reserved would be devolved. This approach is given effect to in the Bill by providing in Clause 28(2)(c) that the Scottish parliament can make laws except where the provision "relates to" the reserved matters listed in Schedule 5. In interpreting what is meant by "relates", it is intended that the courts should rely upon the respection doctrine which they developed in dealing with cases arising from the Commonwealth constitutions and the Government of Ireland Act 1920. The classic statement is found in the words of Lord Atkin in Gallagher v. Lynn in 1937 where he stated:

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    "It is well established that you ought to look at the true nature and character ... the pith and substance of the legislation. If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field".

In other words, it is intended that any question as to whether a provision in an Act of the Scottish parliament "relates to" a reserved matter should be determined by reference to its "pith and substance" or its purpose and if its purpose is a devolved one then it is not outside legislative competence merely because "incidentally it affects" a reserved matter. A degree of trespass into reserved areas is inevitable because reserved and other areas are not divided into neat watertight compartments.

Clause 28(4) and (5) were intended to achieve this. Clause 28(5) provides that a provision does not relate to reserved matters merely because it makes provision for purposes relating to devolved matters which incidentally affects reserved matters. However, there may be some doubt as to whether this provision is sufficient because it does not make it clear that in determining whether a provision relates to a reserved matter the court should determine this by reference to the purpose of the provision in question. In the absence of such a provision, it is possible that the courts would apply a literal approach and hold that a provision "relates" to a reserved matter merely if it affects it. If the courts were to adopt this approach, this would severely fetter the Scottish parliament's ability to legislate about subjects which are, in terms of the White Paper, to be devolved.

For example, the White Paper intended that pollution control should be devolved. However, an Act of the Scottish parliament containing provisions about water pollution from coal-mines or dust from open-cast coal-mining would affect the reserved matter of coal-mining. If the courts were to apply a literal approach, they could hold that these provisions related to the reserved matter and would therefore be beyond the legislative competence of the Scottish parliament. This would make a nonsense of the devolution of pollution control. The same point applies, for example, to planning or local government or even the courts and the administration of justice.

Amendment No. 153 is designed to solve this problem by providing expressly that any question as to whether a provision in an Act of the Scottish parliament "relates to" a reserved matter is to be determined by reference to its purpose. The courts can determine that a provision is for a permitted purpose, even if, as an ancillary matter, it affects reserved matters. In ascertaining the purpose of the provision, the courts are required to have regard, among other things, to its effect in all the circumstances. In my example of pollution control, the courts would take into account that the pollution control provision had an effect upon the reserved matter of coal-mining but may nevertheless consider that its purpose was about pollution control and not about coal-mining.

In the vast majority of cases the ancillary effects of such provisions upon reserved matters are likely to be minor but in some cases they could be significant.

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Whether the effect of a provision on reserved matters is minor or significant, if it is to be within the powers of the Scottish parliament it must in every case satisfy the test that its purpose is a devolved one. The Gallagher case which I mentioned earlier provides a very good illustration of how substantial an incidental effect can be. Northern Irish legislation about milk was found to be for the lawful purpose of promoting the health of the inhabitants of the Province, even though it had a substantial effect upon the reserved matter of cross-border trade by preventing such trade in milk.

An Act of the Scottish parliament reorganising local government would not be possible without ancillary effects on the functions of local authorities which concern reserved matters such as weights and measures, health and safety at work, data protection or the administration of housing benefit. Such legislation could have significant effects on the way in which the relevant services are administered, but they might be purely ancillary to local government reorganisation. The Scottish parliament should be able to legislate about which tier in a system of local government would administer these matters, but not to alter, for example, the rules on the administration of social security benefits, the funding of those benefits, or entitlements or specific duties of local government about reserved matters. The same point also applies in the case where the Scottish parliament amends the law of criminal evidence. This could have a significant and beneficial effect on the confiscation of drug trafficking proceeds, which is a reserved matter.

The result of the purpose test is that an individual provision whose purpose is reserved will be outside competence. However, another result is that there might conceivably be a provision which appears to deal entirely with a reserved matter but which can nevertheless be regarded as being within competence.

This might arise, for example, if there is an Act of the Scottish parliament about a devolved matter which omits to make a necessary consequential amendment to a reserved enactment. It would be possible for an Act of the Scottish parliament simply to make that missed consequential. By itself, it would appear to relate to a reserved matter but, when read in the context of the prior ASP, it can be seen to be for the devolved purpose.

Clearly, it is not the intention that these ancillary effects upon the law on reserved matters should be greater than necessary. Amendment No. 151 to Clause 28, together with Amendments Nos. 167 to 169 to Schedule 4, therefore erect a test in addition to the "purpose test" in Amendment No. 153. Its effect is that the Scottish parliament will be able to modify the law on reserved matters but only where the modifications are incidental to, or consequential on, provision which does not relate to reserved matters, and they do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision. Therefore, if there was a way for the Scottish parliament to complete its legislative task without making modifications which have an effect on reserved matters, or if that is not possible by making modifications which have a lesser effect on reserved matters, then it would be required to take that route for otherwise it would be acting

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ultra vires. Provisions which seek to define the law in areas where there is no existing enactment or case law will nevertheless be modification of the law and will be subject to the additional test and to the powers of intervention in Clauses 33 and 54.

By,


    "the law on reserved matters",

it is intended to mean the law which is about a reserved matter rather than, for example, planning law, which, although devolved, may apply to a reserved matter. The amendments therefore define the law on reserved matters as enactments and rules of law whose subject matter is reserved by Schedule 5. We recognise, of course, that it is important to ensure that the Scottish parliament can legislate on the general rules of Scots private law and criminal law across the board and without fragmenting the general principles which distinguish Scots law as a separate system of law. The new test in Schedule 4 applies generally. In the case of Scots private and criminal law, however, it applies only to certain specified aspects of private law and to the rules of Scots private and criminal law which are special to reserved matters--those which result in a distinct and separate treatment of a reserved matter. In the latter case, the rules will include not only those which exist at present, but also any private or criminal law provisions in future Westminster legislation which are special to reserved matters and which would, of course, supersede to that extent any general provision of Scots private law.

Examples of provisions of Scots private law and criminal law which are special to reserved matters are, first, Section 90 of the Copyright, Design and Patents Act 1988 which categorises copyright as moveable property and provides that an assignation of copyright is not effective unless it is in writing signed by or on behalf of the assignor. This is a special rule of Scots private law on a reserved matter designed to protect the interests of an owner of copyright; secondly, in the case of betting, gaming and lotteries, the rule that gaming contracts cannot be enforced on the basis that they are sponsiones ludicrae; and, thirdly, the provisions of the Proceeds of Crime (Scotland) Act 1995 which make special provisions about confiscating the proceeds of drug trafficking.

It would be inappropriate for the Schedule 4 test to apply to general provisions of Scots private or criminal law which reflect or are the application of their general principles or rules; for example, the rules about how a person may sign a document under Scots law, which may apply both to reserved and to devolved areas. However, Amendment No. 153 to Clause 28 in effect retains the existing test in Clause 28(3) that it will be within competence for the Scottish parliament to modify the Scots private or criminal law as it applies to reserved matters only if the purpose of the provision is to make the law in question apply consistently to reserved and to devolved areas. The courts would, of course, have regard to the effect of such a provision when assessing its purpose.

The amendments include a provision to ensure that the necessity test for effect on reserved matters is judged by reference to the legislative powers of the Scottish

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parliament. Thus, the fact that a consequential provision might be given effect by a Westminster Act or by an order made by a Minister of the Crown under Clause 95 of the Bill will not affect what is considered to be "necessary" for the purposes of this test. Clearly it is sensible to allow the Scottish parliament to complete its legislative task.

There are also a number of related amendments (Amendments Nos. 243 to 247 and 262 to 267) to Clauses 33 and 54, to which we will come when we reach those clauses.

As I said at the outset, these are essentially technical amendments designed to ensure that the Scottish parliament is not hamstrung from the start by a literal interpretation of the test of its legislative competence. However, I recognise that they are substantial and I hope that my explanation has been helpful. They do not represent any change of policy. The amendments are, however, vital to deliver the policy for which the Scottish people voted last September. Of course, we are testing the effect of the new approach on the definitions of reserved matters in Schedule 5 and it is possible that we shall table further technical amendments to Schedules 4 and 5 at Report stage as a result.

A number of minor and technical amendments are include in the group. These clarify the wording of Clauses 28, 50 and 54 and modify Schedules 4 and 5 in consequence of the amendments I have just described and amendments made in another place. In addition, there is an amendment to allow Schedule 4 to be modified by Order in Council in the same way as Schedule 5. I beg to move.


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