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Lord Steel of Aikwood: Members of the Committee on these Benches do not agree with this series of amendments. We regard Clause 59 as providing a very welcome, flexible process by which, over the years, some executive functions may transfer. I simply do not understand the objection to that by the Conservative Party. It is quite clear in subsection (1)(a) that if functions are to be transferred to Scottish Ministers instead of a Minister of the Crown, Ministers of the Crown must agree to that, otherwise it would not happen. Therefore, I am afraid that this is the Conservative Party reverting to type and the great conversion on which I praised the noble Lord, Lord Mackay, on occasion has temporarily disappeared.
Lord Renton: I find the last comments of the noble Lord, Lord Steel, surprising as well as being unacceptable. Surely the overriding factor which we must bear in mind in considering these amendments is that although there is to be devolution, and on a fairly large scale, the unity of the United Kingdom must be preserved.
If merely by an Order in Council Scottish Ministers are to have responsibilities transferred to them by a Minister of the Crown, that departs from the definite character of devolution at which we should aim. Flexibility in many matters of government is worthwhile. However, we must bear in mind the need for preserving the unity of the
Lord Sewel: Amendments Nos. 271Q and 271T are about the executive devolution of functions to Scottish Ministers; that is the process by which executive functions which relate to reserved matters are to be exercisable, in particular as regards Scotland by Scottish Ministers.
Amendment No. 271Q would prevent any such functions being transferred to Scottish Ministers so as to be wholly the responsibility of those Scottish Ministers. That transfer would take place only by order and on the initiative of a Minister of the Crown. On the basis of this amendment, that option would not be available to the Minister of the Crown. By preventing functions being transferred to Scottish Ministers in that way, the amendment goes against the very principle of devolution and introduces a degree of inflexibility into the system that I do not want.
The transfer order to set in train that process would be an Order in Council which would be affirmative in both Westminster and the Scottish parliament so there is plenty of opportunity for both parliaments to come to a view as to whether the content of the order is appropriate in any particular.
Amendment No. 271T appears to be intended to allow for the statutory functions exercisable by Scottish Ministers to be transferred to UK Ministers or to be exercisable by UK Ministers of the Crown either concurrently with Scottish Ministers or with the agreement of or after consultation with Scottish Ministers. I assure the noble and learned Lord that that matter is covered fully by Clause 98. An order under that clause can provide functions exercisable by a member of the Scottish executive to be transferred to a UK Minister or to be made concurrently exercisable by a Scottish Minister and a UK Minister. Again, it is the order route and I believe that that maintains the right framework and provides the right vehicle.
Amendment No. 271TA removes the reference to the "other person", so that, for example, a requirement to consult the local authority transfers automatically with the function. Further reflection on the wording of Clause 59 has led us to conclude that it is right that where a UK Minister is required to obtain the agreement of, or consult with, a third party--the "other person"--the Scottish Ministers should also be subject to the same requirement
The Earl of Balfour: I am only going by what I read in the Bill, but I am worried about the proposal to leave out the words "or other person", as set out in Amendment No. 271TA. I must say that I felt the original words would cover--and here I am on shaky ground--the independence of the Law Officers, because they are not quite Ministers of the Crown in this respect. I thought that the words "or other person" were designed to cover them within the provisions.
Lord Sewel: No, that is not the case. The "other person" in this subsection would relate to a situation where it was necessary for a Minister to consult a local authority or some other body before exercising his functions.
The Earl of Mar and Kellie: Can the Minister confirm whether I am correct in thinking that we are now discussing the transfer of reserved or devolved matters between the Westminster Parliament and the Scottish parliament?
Lord Renton: I understand the argument advanced by the Minister, but surely the power in Clause 59(1)(a) should be limited to such change as is made necessary by the power given under Clause 29 which says:
that is, the schedule which defines the reserve powers and exceptions. The Minister's argument was that the functions must be transferred because the legislative powers have been transferred. If that is not so--
Lord Sewel: It is perhaps necessary to pull back a little and recognise the difference between legislative devolution--that is, the devolution of legislative competence--and some executive acts in respect of which, where the legislative competence is reserved, the executive authority will nevertheless devolve to Ministers.
As the noble and learned Lord mentioned, we published a draft order in February and a further draft was made available on 10th July. They indicated the different categories into which various executive functions would be allocated; for example, those relating to reserved matters. Some were to be transferred to the Scottish Ministers, some would be made concurrently exercisable by the Scottish Ministers and a UK Minister, and some would be exercisable by UK Ministers only with the agreement of, or after consultation with, the Scottish Ministers.
The current version of the draft order lists over 400 functions which will be treated in one of those three ways. The majority of them will be transferred to Scottish Ministers so that only the Scottish Ministers will exercise that function in or as regards Scotland after devolution. Functions to be executively devolved include functions relating to betting, gaming and lotteries, firearms licensing, extradition, funding Gaelic broadcasting, appointments to tribunals, powers and duties in respect of electricity supply, roads and airports, the running of public sector pension schemes and the approving of places where abortions may be carried out. Those are all areas where the legislative competence remains reserved, but they are executive functions which conveniently, on the basis of common sense, are best carried out by the Scottish executive.
Lord Mackay of Drumadoon: I was disappointed to hear the noble Lord, Lord Steel, accuse me of reverting to type. Indeed, from day one of the proceedings on the Bill I have made quite clear where my priorities lie; namely, to make the Scottish parliament and the Scottish executive as successful as possible. In the first of my amendments I was not seeking to prevent the transfer of some executive authority or executive competence to Scottish Ministers in relation to reserved matters, if that was sensible. I fully accept that there are many instances where it is highly sensible that they should have that executive competence. I was seeking to avoid a situation where the sole person who would have executive competence would be a Scottish Minister in a situation where the only body which would have legislative competence would be this Parliament. I anticipate that what is competent under Clause 59(1)(a) could, in certain circumstances, give rise to tension between London and Edinburgh.
I draw the Committee's attention to one example which happened to catch my eye in the draft order. There are certain powers under the Abortion Act 1967 where the executive competence is to be devolved. I hope that I am right in that assumption. Indeed, this is a matter where the Scottish Ministers alone would have that power; yet the legislative competence lies entirely here, as noble Lords decided in a vote earlier this week. Therefore, it is possible that a problem could arise, which could be avoided, if we were limited to Clause 59(1)(a). That is why I raised the matter. I hope that I did so in a constructive manner.