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Lord Hardie: If the Bill is passed there will be consequential amendments in respect of earlier

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legislation. That is what is the intention with regard to "pre-enactments". We have already indicated that all of these matters will be considered again before Report. I am sure that we can take that matter on board. Although, having said that, I do not want to hold out any false hope to the noble Lord.

Lord Renton: Perhaps the noble Lord will also bear in mind that a provision to amend existing legislation by subordinate legislation is, of course, notoriously a Henry VIII clause.

On Question, amendment agreed to.

[Amendments Nos. 292FC and 292FCA not moved]

Clause 96, as amended, agreed to.

Clause 97 [Power to adapt certain functions exercisable by a Minister of the Crown]:

[Amendment No. 292FCB had been withdrawn from the Marshalled List.]

Lord Hardie moved Amendment No. 292FCC:


Page 45, line 9, after ("provision") insert ("(including, in particular, provision modifying a function exercisable by a Minister of the Crown)").

The noble and learned Lord said: In moving Amendment No. 292FCC, I shall speak also to Amendments Nos. 292FDA, 292FDB, 292FEA, 292FF and 292FFA. Clause 97 confers the power for an Order in Council or an order made by a Minister of the Crown to make provision for enabling or facilitating the transfer of ministerial functions to the Scottish ministers, in particular by providing that certain functions can be exercised separately in or as regards Scotland or within devolved competence.

This group of amendments is intended to clarify the scope of provision that could be made under this power, in particular by making clear that existing ministerial functions can be modified for the purpose of enabling or facilitating a transfer of a function to the Scottish ministers under the Bill. The function to be transferred may not be the whole ministerial function as it exists but a part or aspect of it which is relevant to Scotland and it may need to be modified to identify and make clear the part that is to be transferred to the Scottish ministers to be separately exercisable by them as regards Scotland. Amendment No. 292FCC, which is the main amendment in the group, makes clear that such provision can be made. Amendments Nos. 292FDA, 292FDB and 292FEA make consequential drafting changes.

Amendment No. 292 FFA amends Clause 97 in two ways. First, in the new subsections (4) and (5) it provides that where the Clause 97 power is used to split a European Community or international obligation which is expressed in quantitative terms so that part of it can be transferred to the Scottish ministers, the order will not be made unless they have been consulted. Secondly, new subsection (6) will ensure that the Secretary of State's powers of intervention in Clause 54 can be used to ensure that the Scottish ministers' share of a quantitative international obligation is met.

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Examples of international obligations and obligations under European Community law which will fall within the scope of these amendments are likely to include EC quotas for livestock subsidies and the United Kingdom's obligations under the Kyoto Protocol on climate change and related Community law to achieve certain targets for the reduction of greenhouse gas emissions. All parts of the UK should be required to meet a fair proportion of such obligations, not least to ensure that unfair burdens are not placed upon business in one area compared to another. Where it is possible for the Scottish ministers to contribute to the achievement of the obligation through the exercise of their powers it is obviously right that they should be apportioned a share of the obligation. An order under Clause 97 will enable that to be done. The order will be made by a Minister of the United Kingdom Government or by Her Majesty in Council on the advice of such a Minister and will be subject to procedure at Westminster only.

As Members of the Committee may be aware, the Government of Wales Bill was amended to enable the UK Government to provide by order for the achievement by the National Assembly for Wales of a share of a quantitative international or EC obligation. Clause 97, coupled with the provisions in Clauses 49 and 59 for transferring ministerial functions to the Scottish ministers, enables the same result to be delivered for Scotland. Equivalent arrangements will be made for Northern Ireland.

The UK Government will in effect have the ultimate power to determine the Scottish ministers' share of the obligation. However, the extent of the share should be a matter for consultation between the United Kingdom Government and the Scottish ministers, and the present Government regard the aim of reaching agreement as a matter of great importance. We therefore believe that it is right that there should be a statutory requirement for the Scottish ministers to be consulted and, indeed, we would expect that any government would use their best endeavours to reach agreement with them about the size of their share of an international or Community obligation.

As with international and EC obligations more generally, the Government must be in a position to ensure that the United Kingdom's commitments are met. New subsection (6), which would be introduced into Clause 97 by the amendment, has the effect that, in relation to quantitative international obligations which are split using Clause 97, the Secretary of State's powers of intervention under Clause 54 will be available, as a last resort, in relation to the Scottish share of the obligation. This means that the Secretary of State will be able to intervene to ensure that the Scottish share of a quantitative international obligation is achieved.

As Members of the Committee will recall, the Bill defines an "international obligation" as excluding an obligation under European Community law. As far as EC obligations are concerned, we believe that the procedures for their enforcement should be as effective as those arising from other international obligations. We are examining whether anything more is required to enable the UK Government to be able to ensure that

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the Scottish ministers implement the Scottish share of a quantitative EC obligation and we will, if it proves necessary, bring forward further amendments at Report. I beg to move.

Lord Fraser of Carmyllie: I am not surprised that the noble and learned Lord took that passage not so much at a gentle trot, but at an accelerating gallop. It is an extremely complicated set of observations with regard to these amendments and will need to be examined carefully.

From an earlier intervention, the noble and learned Lord will be aware of my concerns that, at a point of tension or hostility between the United Kingdom Government and the Scottish parliament, the UK Government may seek to use their rights to determine international obligations in a way that deprives the Scottish parliament of the opportunities to exercise its power in what would otherwise be seen as an area of devolved power.

Clearly, it is important that such a set of powers should rest in the hands of the United Kingdom Government and the Kyoto example is an obvious and a valid one. However, the only question to which I should like an answer now is this. If there is to be quota or ratio determined, as I understood the noble and learned Lord, it will be the Secretary of State who determines what the Scottish quota or ratio is to be. If that is the case and it is not the First Minister who will be involved in that decision, other than the rather loose requirement of consultation, it seems to me yet again that there is an opportunity for conflict and tension.

Lord Renton: I want to draw attention to subsection (6) set out at the end of Amendment No. 292FFA. It is unprecedented; I have never seen its like before. It is an extraordinary piece of legislation. One will need a convincing, practical explanation of the need for it before enacting the words,


    ""so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be achieved under the obligation as is specified in the legislation".

I have never come across anything like that in my long parliamentary experience and the matter must be reconsidered. To enact something with so much uncertainty in its meaning is asking a bit much of us. I hope therefore that the noble and learned Lord will decide not to move Amendment No. 292FFA when it arises but will give an undertaking to consider it further and to give us a necessary and practical explanation of its effect.

Baroness Carnegy of Lour: Following what my noble and learned friend Lord Fraser of Carmyllie said, can the noble and learned Lord tell us whether he actually said that, if the two parliaments disagree about the share of the cost of whatever is undertaken, the Secretary of State for Scotland will arbitrate on the amount of the share? If he did say that, can he tell us why he thinks that that is the right way to proceed and why he thinks that it will work? This is important.

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7 p.m.

Lord Hardie: Perhaps I may deal first with the point raised by the noble and learned Lord, Lord Fraser of Carmyllie, which was taken up by the noble Baroness, Lady Carnegy of Lour. As the noble and learned Lord appreciated, we are dealing with international obligations. We are talking about a United Kingdom function. The noble and learned Lord accepted the validity of the Kyoto example. Scotland would be required to contribute to the quota under the terms of Kyoto. In that example, the question that then arises is: what is the size of the Scottish quota? That will be a matter for negotiation between the Scottish executive and the United Kingdom Government. We regard the aim of reaching agreement about such matters as very important. The consultation requirement, which will be introduced by these amendments, will underpin that. There is a requirement to consult.

It is difficult to envisage circumstances, even if the Government in the United Kingdom were of a different political complexion from the executive in Scotland, where it would be in the interests of the United Kingdom Government to be seen to be imposing an unfair burden on Scotland. The Government of the United Kingdom obviously have responsibility for the entire United Kingdom.

The order under Clause 97 will be subject to Westminster procedures. As I have explained on government Amendment No. 292YNA, an order amending primary legislation will require affirmative resolution in both Houses of Parliament; otherwise it would be subject to the negative resolution.

We feel that there will be strong incentives for agreement on the size of the Scottish share. As I said, we expect the United Kingdom Government to use their best endeavours to achieve agreement. Ultimately, however, in the absence of such an agreement, the United Kingdom Minister would allocate the responsibilities between the different parts of the kingdom. I hope that that answers the point raised by the noble Baroness. We are referring to an international obligation which is the preserve of the United Kingdom Parliament, so it is appropriate that it should be handled by a United Kingdom Minister.

To take up the point raised by the noble Lord, Lord Renton, I appreciate that these amendments are complex. As the noble and learned Lord, Lord Fraser of Carmyllie, said, I cantered or galloped through the explanation. It is important that noble Lords should have the time to reflect on that explanation. I hope that, having done so, noble Lords will understand more clearly the thinking behind our amendments. I propose to move Amendment No. 292FFA at the appropriate time in the knowledge that once noble Lords have had the opportunity to read my remarks and to reflect upon them, they may on Report table such amendments as they think appropriate. We would give such amendments proper and full consideration, as we do with all amendments.


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