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The Earl of Mar and Kellie moved Amendment No. 230:


Page 15, line 34, at end insert (", and
(b) of his view as to the economic, social and environmental impact and sustainability of an Act of the Scottish Parliament containing the same provisions as those in the Bill").

The noble Earl said: This amendment continues the subject of the introduction procedures for legislation in the Scottish parliament. The amendment has the purpose of ensuring that Ministers of the Scottish executive bring forward legislation which is certified to be not just intra vires, as we have just discussed, but also economically, socially and environmentally friendly and sustainable. Indeed, I wish to extend this amendment to any member of the Scottish parliament who is introducing a Bill.

The amendment has been proposed to me as a probing amendment by the RSPB in Scotland. I believe that the issue is an important one for the Committee as it would give a guarantee that the Scottish parliament will enact only sustainable legislation. The prohibition in effect on unsustainable legislation will save the Scottish parliament a degree of scrutiny time, although it will by no means eliminate the need for scrutiny. While there has been a general desire for a minimum of restrictions on the activity of the Scottish parliament intra vires, I believe that we are allowed to set down some minimum philosophy on the face of the Bill. The complex nature of compliance with existing Scottish, British and Community law will ensure that most enactments are ultimately compliant. I therefore see no reason why they should not be required to be in compliance at the start.

Amendment No. 242 is grouped with this one. It is aimed at ensuring that all Scottish Acts are compatible with the UN Convention on the Rights of the Child as adopted by the United Kingdom Parliament. It is important that Scottish Ministers, indeed any proposer of legislation in the Scottish parliament, should have the convention on children's rights firmly in front of them when drafting legislation. For a Bill to be presented in an incompatible state would be a demonstration of incompetence and possibly contempt. The presentation of incompetent legislation is always a waste of parliamentary time. I am absolutely confident that, even in the friendly Scottish parliament, those who form the Opposition will pounce on incompetent legislation and that which is ultra vires. The inclusion of this new clause on the face of the Bill would ensure that the Scottish parliament understood its responsibilities right from the start and that all citizens interested in children's welfare and their future would have confidence in the legislation passed by the parliament. The children's rights "proofing" measure must be seen as an asset to the Bill and to the parliament. I beg to move.

Lord Sewel: The noble Earl suggests that Amendment No. 230 would ensure that the legislation coming before the parliament was economically,

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socially and environmentally friendly. The amendment does not actually state that. It states that the Minister would be required to give,


    "his view as to the economic, social and environmental impact and sustainability of an Act of the Scottish Parliament containing the same provisions as those in the Bill".

Looking back on the history of legislation, I believe that that assumes a degree of wisdom and omniscience that has been sadly lacking in our previous attempts over a wide area of policy. The thought that a Minister would be able to make a full and comprehensive statement of the likely economic, social, environmental and sustainability impact of any single piece of legislation is one that I find quite daunting. However, I have little difficulty in recognising and supporting the sentiments to which the noble Earl wishes to draw attention. I am sure that the noble Earl, Lord Lindsay, would have made a similar case were he in his place today.

The difficulty is that this degree of detail, as to the type of introductory statement that should be made and the sort of matters a Scottish Minister should include when introducing a Bill, comes down to minutiae. I wish to see the Scottish parliament and Scottish Ministers continue their commitment to sustainability, which has been well established in the Scottish Office over recent years. However, it is not right for the Bill itself, which sets up the framework within which the parliament and the executive can decide their own policies, to take that step and begin setting out in detail how the parliament should go about its business. I have no qualms at all in fully supporting the noble Earl's wish for the Scottish parliament to move forward on a comprehensive front in terms of economic, social, environmental and sustainability issues. However, I do not believe it right for this Parliament to impose that sort of statutory duty on a Minister.

Baroness Linklater of Butterstone: I support my noble friend on Amendment No. 242 dealing with the UN Convention on the Rights of the Child. It is surely only right that every Bill should be considered in terms of its compliance with the convention. The future of our children is one of the pre-eminent issues that we should bear in mind: survival rights, development rights, protection rights and participation rights, all of which are contained in the convention. UNICEF wholeheartedly supports the amendment and the positive impact it sees it having on the lives of children in Scotland. Given that backing, the amendment should be hard to resist.

Lord Mackay of Ardbrecknish: I thought I would listen to the Minister before intervening. I was puzzled when the noble Earl, Lord Mar and Kellie, said on the previous amendment that he did not think a statement should be made as a statement, and he now comes forward with a whole raft of matters on which a statement is to be made. All the noble Earl has missed out is motherhood and apple pie.

This is an instance of where the "trust the Scottish parliament" theme enters into the argument. Any government bringing forward legislation believe that they are doing the right thing. They may not be doing

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the right thing, but they believe they are. They certainly think they are doing the right thing in relation to economic and social issues. I suppose, in matters of social security, the Government believe the clear-out they have had over the past two days in the Department of Social Security to be the right thing. I am sure all governments believe that the environmental impact of their legislation is the right thing. As for obeying the UN Convention on the Rights of the Child, I assure the Committee without giving away any secrets that the L Committee never talked of anything other than these matters. It is certainly advised by the learned Law Officers about EU legislation and conventions and United Nations conventions to make sure that the legislation is correct. We should be extremely careful about going overboard in regard to statements.

After hearing the Minister's reply, I wonder what is the difference between Clause 30 and all the matters that the noble Earl wishes to see included. I believe that they would be unnecessary words on the face of the legislation. Equally, I think that the whole of Clause 30 is unnecessary. Frankly, if the Minister tells the Committee that the Scottish executive and the Scottish parliament can be trusted not to bring forward measures that are environmentally, economically or socially unsound, or disobey a convention, then surely we can also trust the parliament not to bring forward legislation which is against its legal competence. The Minister's answer suggests that the whole of Clause 30 could easily be dropped. Perhaps the noble Lord should move against his own clause. If the Scottish parliament does not need to hear statements about all these other matters, surely it does not need to hear a statement about the competence of legislation. I should have thought that if the L committee exists, as I am sure it will, in the Scottish parliament, one matter about which it will be concerned, and the one question that it will ask is: is this within our legislative competence? The matter will have nothing to do with a statement to the Scottish parliament. It will be a question of whether or not it is hauled before the courts of this country if it attempts to go outside the legal competence. I agree with the Minister's argument against the noble Earl's amendment. But, frankly, his argument convinces me that the whole clause should be dropped.

Lord Sewel: I cannot resist replying to that point. There is a fundamental difference between Clause 30 as it now stands and the amendment offered by the noble Earl. Clause 30 deals with the basic issue of a statement about competence and whether the proposed legislation is within the competence of the parliament. That is a fundamental issue. The noble Earl's amendment deals with policy content, which can be discussed only after the issue of competence has been decided. So the noble Earl's amendment is very much a second order amendment, while the clause is a first order clause.

Lord Mackay of Ardbrecknish: But surely, if one is considering policy, one must look at Schedule 5 where sometimes policy on the same issue is partly reserved and partly not reserved. Therefore, the question of competence will have to run through the whole of the Scottish government's legislative programme. It will

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have to address the issues all the time as it draws up the legislation. As it will have done that, the idea that the minister appearing before the parliament and saying "We believe this is within the legislative competence" will carry any weight in a court of law is, I suspect, Cloud-cuckoo-land.


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