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The Earl of Perth: Dover House belongs to the Crown Estate. It is a long time since I was a Crown Estate Commissioner, but if I am right will the Government ensure that the Crown Estate is fully informed of the debate?

Lord Hardie: I can assure the noble Earl that the interest of the Crown Estate will be respected and the Crown Estate Commissioners will be fully advised of the situation. If there is a Crown Estate interest it will be respected and any lease or other arrangements from the Commissioners would transfer either to the Scottish executive or remain with the United Kingdom Government.

Baroness Carnegy of Lour: Am I right in thinking that not only will the property be transferred but so, too, will the liabilities which go with it?

Lord Hardie: Yes.

Lord Selkirk of Douglas: I am extremely grateful to the Lord Advocate for giving us more information. I hope that when decisions are made further information will be supplied, as we are acutely interested in the subject. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 agreed to.

Clause 56 [Transfers to the Scottish Ministers]:

5.15 p.m.

Lord Sewel moved Amendments Nos. 271A and 271B:


Page 24, line 36, leave out ("to which this section applies") and insert ("belonging to a Minister of the Crown or government department").
Page 24, line 39, leave out ("to which this section applies") and insert ("belonging to a Minister of the Crown or government department").

On Question, amendments agreed to.

Lord Mackay of Drumadoon moved Amendment No. 271C:


Page 24, line 41, at end insert--
("( ) Any subordinate legislation under subsection (1) above which transfers heritable property shall be registrable in the Register of Sasines or the Land Register for Scotland.").

The noble and learned Lord said: Amendments Nos. 271C and 271K are technical amendments dealing with the importance of keeping the property records of

30 Jul 1998 : Column 1648

Scotland up to date in the event that powers to be given in Clauses 55 and 58 to transfer property in the first place to the Scottish Ministers and in the second place to the Lord Advocate are used.

It is accepted on all sides that such registers should be as accurate as possible. The Government would set a good example by accepting the proposal that if any orders are made they should be recorded either in the Register of Sasines or the Land Register for Scotland, whichever is appropriate. I beg to move.

Lord Hardie: These amendments are unnecessary. The Bill, when it receives Royal Assent, together with the subordinate legislation transferring the property, will constitute a sufficient link in the title which the Scottish Ministers or the Lord Advocate can use to register title to particular items of heritable property if they so wish. As the noble and learned Lord will be aware, they could record a notice of title using the Act and the subordinate legislation as links. That would not always be necessary, but would accord with the usual practice.

It would be most unusual to provide for the registration in Scotland of subordinate legislation transferring property. It is unlikely that such subordinate legislation would list each particular item of heritable property transferred and it would certainly not contain a full conveyancing description. The burden on the Keeper of the Registers would therefore be enormous and he would have an almost impossible task in identifying the titles against which to show the subordinate legislation. The simplest way in respect of particular items of property would be to register a notice of title.

There would of course be nothing to prevent the title to any particular heritable property so transferred from being formally recorded at a later stage if Scottish Ministers or the Lord Advocate were minded to. I invite the noble and learned Lord to withdraw the amendment.

Lord Rodger of Earlsferry: Should not the transfer be registrable under the Land Registration Act?

Lord Hardie: It may well be, but the same issue would arise because subordinate legislation might not identify the particular property.

Lord Rodger of Earlsferry: It is a matter for the Government, but they might care to consider whether, since there would be a transfer, it would require registration under the Land Registration Act.

Lord Mackay of Drumadoon: The amendments were moved in the hope that they might be helpful. I am surprised that subordinate legislation is being contemplated which does not identify the property that has been transferred by it.

I shall look carefully at what the noble and learned Lord the Lord Advocate said and I shall research the point made by the noble and learned Lord, Lord Rodger. It may be necessary to raise the issue again on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Sewel moved Amendments Nos. 271D to 271G:


Page 24, line 42, leave out subsection (2).
Page 25, line 6, after ("Crown") insert ("or government department").
Page 25, line 6, leave out from ("subject") to end of line 12.
Page 25, line 12, at end insert--
("( ) Subordinate legislation under this section may only be made in connection with any transfer or sharing of functions of a Minister of the Crown by virtue of section 49, 59 or 84 or in any other circumstances in which the person making the legislation considers it appropriate to do so for the purposes of this Act.").

On Question, amendments agreed to.

Clause 56, as amended, agreed to.

Clause 57 agreed to.

Clause 58 [Transfers to the Lord Advocate]:

Lord Sewel moved Amendments Nos. 271H and 271J:


Page 25, line 28, leave out ("to which this section applies,") and insert ("belonging to a Minister of the Crown or government department,").
Page 25, line 31, leave out ("to which this section applies") and insert ("belonging to a Minister of the Crown or government department").

On Question, amendments agreed to.

[Amendment No. 271K not moved.]

Lord Sewel moved Amendments Nos. 271L to 271P:


Page 25, line 34, leave out subsection (2).
Page 25, line 43, after ("Crown") insert ("or government department").
Page 25, line 43, leave out from ("subject") to end of line 3 on page 26.
Page 26, line 3, at end insert--
("( ) Subordinate legislation under this section may only be made in connection with the Lord Advocate becoming a member of the Scottish Executive or having any retained functions or in any other circumstances in which the person making the legislation considers it appropriate to do so for the purposes of this Act.").

On Question, amendments agreed to.

Clause 58, as amended, agreed to.

Clause 59 [Power to transfer functions]:

Lord Mackay of Drumadoon moved Amendment No. 271Q:


Page 26, leave out line 8.

The noble and learned Lord said: This amendment and Amendment No. 271T raise certain issues relating to the powers which are proposed in Clause 59 to the effect that Her Majesty may, by Order in Council, provide for functions which are currently exercisable by a Minister of the Crown in, or as regards, Scotland to be exercised in different ways: first, by Scottish Ministers in place of or instead of a Minister of the Crown; secondly by Scottish Ministers concurrently with a Minister of the Crown; and thirdly by the Minister of the Crown only with the agreement of or after consultation with Scottish Ministers.

That is a power which could be used to transfer to the Scottish executive, either to act on its own or to act concurrently with Ministers of the Crown, executive competence over a wide range of functions additional to the executive competence which will flow from other provisions of the Bill.

30 Jul 1998 : Column 1650

As Members of the Committee will be aware, there has been deposited in the Printed Paper Office a draft of the first Order in Council under Clause 59 which extends to almost 90 pages and indicates a huge variety of functions under a large number of Acts, covering a great range of reserved matters as those are to be found in Schedule 5.

The purpose of the amendments are two-fold: first, to prevent that expansion of executive competence in a manner which would exclude altogether a Minister of the Crown. I have no objection to Scottish ministers being given such competence which they could exercise concurrently with Ministers of the Crown. As I understand it, in such a situation one or other could act and no doubt the working arrangements, whether they be by way of concordat or otherwise which will evolve in the years ahead, will ensure which one does act. But I am concerned about the Minister of the Crown being excluded from having any executive competence in those fields which all relate to reserved matters.

Amendment No. 271T seeks to ensure that it is not one-way traffic; in other words at present all that can happen is that the executive powers of British Government Ministers can go to Scottish Ministers in one of the three ways set out in Clause 59(1). If that power is exercised, it can mean only that the executive competence of Ministers of the Scottish executive increases every time another Order in Council is made.

The purpose of Amendment No. 271T is to enable there to be a reverse process in circumstances that if Her Majesty in Council decided that a particular executive power should go back to the Minister of the Crown alone, or be altered in the second and third ways set out in subsection (1), that also would be competent. I should indicate that I have no objection to government Amendment No. 271TA. I beg to move.


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