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Lord Hardie: As the noble and learned Lord observed, this is very similar to the previous amendment in that it attempts to say to whom the Solicitor to the Secretary of State for Scotland should or should not provide advice. As the Committee will be aware, the Secretary of State for Scotland will retain his role as a member of the United Kingdom Government. Like any other member of the Government, the Secretary of State for Scotland should be able to create whatever posts are needed within his own department and decide what qualifications holders of those posts should have, as should the Advocate General.

As I have said in relation to Amendment No. 290D, this amendment is at best unnecessary. At worst it could interfere with the ability of the Secretary of State to

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organise his or her department in the best and most efficient way. Having said that, I would advise the Committee that it is inconceivable that the Secretary of State would not have the benefit of separate legal advice from the First Minister. How that is achieved is a matter for the respective executives.

With that explanation I urge the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon: Once again I, the Law Society and others will reflect on what the noble and learned Lord said in response to this probing amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sewel moved Amendment No. 290EA:

Page 39, line 32, leave out ("sections 106, 107 and 108") and insert ("section 106").

The noble Lord said: Amendment No. 290EA is consequential on Amendment No. 292TNA, to which we shall come later. However, for convenience, I speak to it now.

Amendment No. 292TNA provides a clearer list of those persons to whom the functions in Clause 107 apply. In particular the existing reference to the functions of any person, subject to certain exclusions, is broader and vaguer than it needs to be. We are really concerned with the devolved functions of the members of the Scottish executive and this amendment simply clarifies that and lists them. It also has the effect of excluding the functions of cross-border public authorities from the definition, which was always the intention.

Government Amendment No. 290EA is a consequential amendment. It removes a reference to Clauses 107 and 108 in Clause 83 which is made redundant by Amendment No. 292TNA. I beg to move.

The Earl of Balfour: I am rather confused here. Clause 83 is headed, "Cross-border public authorities: initial status". The clause, as amended, commences:

    "(1) Sections 49, 106, 107 and 108 shall not apply in relation to any function which is specifically exercisable in relation to a cross-border public authority and section 106 shall not apply in relation to any function of such an authority".
Clause 107 is entitled "Consolidated Fund, etc." The clause commences, as amended, with the words on page 34 of the Marshalled List. I am fascinated as the two amendments were grouped together but they seem to be poles apart. I am rather confused.

Lord Mackay of Drumadoon: While the Minister is thinking about how he might alleviate the confusion in the mind of my noble friend Lord Balfour, who, if I may say so, very frequently puts his finger on a matter of some significance even in the very detail of a clause, perhaps I may say that I welcome the amendments. I see why they have been brought forward and I hope that when my noble friend considers the matter further he

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will appreciate that there is an intention to clarify and simplify here. From these Benches, I offer no opposition to the amendments.

Lord Sewel: I thank the noble and learned Lord for his words. I wonder whether we can leave it at this stage, and if there is a further matter of clarification we can deal with it later.

The Earl of Balfour: I am happy with that.

On Question, amendment agreed to.

[Amendment No. 290F not moved.]

11.45 p.m.

Lord Mackay of Drumadoon moved Amendment No. 290G:

Page 39, line 45, at end insert--
("(3A) The Parliament shall be entitled to require any representative of a cross-border public body--
(a) to attend its proceedings for the purpose of giving evidence, or
(b) to produce documents in his custody or under his control,
in respect of functions within the responsibility of that body which are exercisable in or as regards Scotland.").

The noble and learned Lord said: This amendment seeks to extend the powers of the Scottish parliament to take evidence in both oral and documentary form in relation to the activities of cross-border public authorities. The Committee will recall from the provisions of Clause 23 that the Scottish parliament is given power to require any person to attend its proceedings for the purpose of giving evidence or to produce documents in his custody or under his control, provided that that oral or documentary evidence relates to matters mentioned in subsection (2) of the clause. Subsection (2) of Clause 23 states that the matters are:

    "(a) devolved matters concerning Scotland,

    (b) other matters in relation to which functions are exercisable by the Scottish Ministers".
Those would include not just the matters which are devolved to the Scottish executive because they lie within the legislative competence of the Scottish executive but also matters transferred to Scotland and to the Scottish executive by the operation of a Section 59 order. As it has been described by one Minister-- I regret that I do not remember which one--it indicates how executive devolution is marching ahead of legislative devolution. It is that to which I understand Section 22(2)(b) to be primarily referring.

This amendment seeks to address the powers in relation to cross-border public authorities. I am extremely grateful to the officials of the noble Lord, Lord Sewel, for responding very promptly to a fax which I sent in the small hours of Monday morning asking for a copy of the draft order, which reached me today. It enables me to understand more fully what my amendment is about and I hope to enable the Committee to do likewise.

The guide to the working draft, which is attached to the front of it, contains one or two surprising comments. It indicates that, as the White Paper indicated, the Scottish parliament will be able to require the

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submission of reports and the presentation of oral evidence from cross-border public authorities. The Bill makes provision for such authorities in Clauses 83 to 85. It makes it clear, as the Bill does when one studies it carefully, that an authority can be specified as a cross-border public authority under Clause 83(5) only if it has, in addition to other functions, functions exercisable in or as regards Scotland which do not relate to reserved matters.

We then come to the somewhat surprising part:

    "It should be noted that a cross-border public authority is not necessarily an authority with functions which cross the border between England and Scotland. Rather, as indicated above, they will be authorities which exercise functions in or as regards Scotland which do not relate to reserved matters as well as other functions. Thus cross-border public authorities could include Scotland-only authorities which have functions which relate to reserved matters and matters which are not reserved".

I should indicate that in the draft which has been prepared, and very helpfully prepared, it sets out the current thinking as to what those cross-border public authorities shall be, as specified under Clause 83(5). It includes some fairly major authorities such as the Criminal Injuries Compensation Board, the new appeals panel, the Forestry Commission, the National Radiological Protection Board, whose activities obviously have a bearing on the nuclear establishments in Scotland, the Sea Fish Industry Authority and others.

As I read the provisions of Clause 23, it would entitle the parliament to require those authorities to produce witnesses and to produce documents covering the matters specified by Clause 23(2); in other words, if they were touching on devolved matters or other matters in relation to which functions are exercisable by Scottish Ministers. However, it would not cover all the activities of the cross-border public authorities even if the cross-border public authority in question was a Scotland-only authority; in other words, if it operated only in Scotland but had functions which related to reserved matters and matters which were not reserved.

I can well see that there is a problem in not wanting to make Ministers of the Crown and other public bodies accountable to two parliaments. But it is inevitable that that principle will be breached in relation to cross-border public authorities because some of them such as the Forestry Commission, the NRPB and the Sea Fish Authority will all be accountable to this Parliament and will, in certain respects, be accountable to the Scottish parliament.

It is against that background that it is inappropriate that on certain issues relating to Scotland, the Scottish parliament could require them to come and give evidence and produce documents but on other issues it could not.

In so far as the structure of the Bill makes those authorities accountable to both parliaments, there is merit in looking again as to whether the terms of Clause 23 might be broadened or whether one accepts the amendment which I propose. That would enable the Scottish parliament to call one of those bodies in front of it in relation to any activity in Scotland, whether it is one that touches on reserved matters or one that touches on devolved matters.

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I accept that this is a complicated matter, but I hope that the amendment will be accepted as a constructive suggestion which, in the light of the draft order which is available, might merit some reconsideration as suggested in Amendment No. 290G. There is also a small drafting amendment, Amendment No. 290K, tagged on to the grouping. I pose this question. Why is not what I suggest more understandable, at least to the lay Minister? I beg to move.

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