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Lord Sewel moved Amendments Nos. 292GAA to 292GAC:


Page 46, line 14, at end insert--
(""the Border rivers" means the Rivers Tweed and Esk,
"Border rivers function" means a function conferred by any enactment, so far as exercisable in relation to the Border rivers,
"conservation", in relation to salmon, trout, eels and freshwater fish, includes the protection of their environment,").
Page 46, line 16, at end insert--
(""enactment" includes one made under this Act,").
Page 46, line 17, leave out ("that Act") and insert ("the Salmon and Freshwater Fisheries Act 1975").

On Question, amendments agreed to.

[Amendment No. 292GB not moved.]

Baroness Ramsay of Cartvale moved Amendment No. 292GBA:


Page 46, line 19, leave out from ("Scotland") to end of line 20 and insert ("including--
(a) its tributary streams (which for this purpose include the River Sark and its tributary streams), and
(b) such waters on the landward side of its estuary limits as are determined by an Order under subsection (1),
together with its banks;
and references to the Border rivers include any part of the Border rivers.
( ) An Order under subsection (1) may modify the definitions in subsection (2) of the River Tweed and the River Esk.").

On Question, amendment agreed to.

8 Oct 1998 : Column 641

Clause 100, as amended, agreed to.

Clause 101 [Subordinate legislation: general]:

Baroness Ramsay of Cartvale moved Amendments Nos. 292GBAA to 292GBAC:


Page 46, line 24, at beginning insert--
("(A1) Any power to make subordinate legislation conferred by this Act shall, if no other provision is made as to the person by whom the power is exercisable, be exercisable by Her Majesty by Order in Council or by a Minister of the Crown by order.
(B1) But the power to make subordinate legislation under section 115(3) providing--
(a) for the appropriation of sums forming part of the Scottish Consolidated Fund, or
(b) for sums received by any person to be appropriated in aid of sums appropriated as mentioned in paragraph (a),
shall be exercisable only by Her Majesty by Order in Council.
(C1) References in this Act to an open power are to a power to which subsection (A1) applies (and include a power to make subordinate legislation under section 115(3) whether or not the legislation makes provision as mentioned in subsection (B1)).
(D1) An Order in Council under an open power may revoke, amend or re-enact an order, as well as an Order in Council, under the power; and an order under an open power may revoke, amend or re-enact an Order in Council, as well as an order, under the power.").
Page 46, line 27, leave out subsections (2) to (4).
Page 47, line 1, leave out subsections (6) to (12).

On Question, amendments agreed to.

Clause 101, as amended, agreed to.

Lord Hardie moved Amendment No. 292GBAD:


After Clause 101, insert the following new clause--

Subordinate legislation: scope of powers

(".--(1) References in this section to a power are to an open power and to any other power to make subordinate legislation conferred by this Act which is exercisable by Her Majesty in Council or by a Minister of the Crown, and include a power as extended by this section.
(2) A power may be exercised so as to make different provision for different purposes.
(3) A power (as well as being exercisable in relation to all cases to which it extends) may be exercised in relation to--
(a) those cases subject to specified exceptions, or
(b) any particular case or class of case.
(4) A power includes power to make--
(a) any supplementary, incidental or consequential provision, and
(b) any transitory, transitional or saving provision,
which the person making the legislation considers necessary or expedient.
(5) A power may be exercised by modifying--
(a) any enactment or prerogative instrument,
(b) any other instrument or document,
if the subordinate legislation (or a statutory instrument containing it) would be subject to any of the types of procedure referred to in Schedule (Procedure for subordinate legislation).
(6) A power may be exercised so as to make provision for the delegation of functions.
(7) A power includes power to make provision for sums to be payable out of the Scottish Consolidated Fund or charged on the Fund.
(8) A power includes power to make provision for the payment of sums out of money provided by Parliament or for sums to be charged on and paid out of the Consolidated Fund.

8 Oct 1998 : Column 642


(9) A power may not be exercised so as to create any criminal offence punishable--
(a) on summary conviction, with imprisonment for a period exceeding three months or with a fine exceeding the amount specified as level 5 on the standard scale,
(b) on conviction on indictment, with a period of imprisonment exceeding two years.
(10) The fact that a power is conferred does not prejudice the extent of any other power.").

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 292GBAE:


After Clause 101, insert the following new clause--

Subordinate legislation: particular provisions

(".--(1) A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised by modifying any enactment comprised in or made under this Act (except Schedules 4 and 5): sections 84, 92, 95, 98, and 115(3).
(2) The reference in subsection (1) to a power to make subordinate legislation includes a power as extended by section (Subordinate legislation: scope of powers).
(3) A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised so as to make provision having retrospective effect: sections 29, 54(4), 92 and 95.").

On Question, amendment agreed to.

Clause 102 [Subordinate legislation: procedure]:

[Amendments Nos. 292GBAF to 292GBS not moved.]

Lord Hardie moved Amendment No. 292GBT:


Leave out Clause 102 and insert the following new clause--

Subordinate legislation: procedure

(".--(1) Schedule (Procedure for subordinate legislation) (which determines the procedure which is to apply to subordinate legislation under this Act in relation to each House of Parliament and the Scottish Parliament) shall have effect.
(2) In spite of the fact that that Schedule provides for subordinate legislation under a particular provision of this Act (or the statutory instrument containing it) to be subject to any type of procedure in relation to the Parliament, the provision conferring the power to make that legislation may be brought into force at any time after the passing of this Act.
(3) Accordingly, any subordinate legislation (or the statutory instrument containing it) made in the exercise of the power in the period beginning with that time and ending immediately before the principal appointed day is to be subject to such other type of procedure (if any) as may be specified in subordinate legislation made under section 115(3).").

On Question, amendment agreed to.

Clause 103 [Subordinate legislation: supplementary]:

On Question, Whether Clause 103 shall stand part of the Bill?

Lord Hardie: As I explained, this clause has been replaced as a result of amendments.

Clause 103 negatived.

Lord Selkirk of Douglas moved Amendment No. 292GC


After Clause 103, insert the following new clause--

Subordinate legislation: fire safety

(" . In making subordinate legislation in relation to fire safety, the Parliament shall have regard to fire safety legislation in England and Wales.").

8 Oct 1998 : Column 643

The noble Lord said: I can speak very briefly to this amendment which concerns harmonisation in relation to fire safety. Building in Scotland is not identical to that in England, and in the north far more buildings are constructed with timber frames. There has been a substantial debate about the making safe of windows because, sadly, in the past some young children have fallen to their deaths. If windows are not capable of being opened, fatalities can arise if there is a serious fire. It is a question of getting the right balance to make sure that windows are secure so that children cannot fall and that occupants can escape in the event of a serious fire.

I believe that in this area there is a strong case for safety legislation on fire to be in harmony north and south of the Border. Apart from anything else, there can be an emergency near to one side of the Border which might require fire engines from both sides to participate. This does not mean that the safety legislation needs to be identical, but it should be in harmony on a subject of such importance.

When the noble Lord, Lord Sewel, answered the debate initiated by the noble Lord, Lord Howie of Troon, on 15th June this year, he said:


    "The process of harmonisation of the building standards of England, Wales and Northern Ireland is a joint process. In a way it is intended to the extent that harmonisation is attractive. It is intended that the best aspects of each set of regulations are retained ... harmonisation is very much a two-way process ... there may well be a case here for harmonisation to be towards the Scottish practice rather than in the other direction".--[Official Report, 15/6/98; col. 1393.]
Whether or not the Minister was correct in that connection, it seems that, as a matter of principle, harmonisation is necessary in the interests of saving lives. I beg to move.

7.45 p.m.

Baroness Ramsay of Cartvale: I understand the concerns behind the amendment, but we are confident that the amendment is unnecessary. We made clear in the White Paper our intention to devolve general fire safety, and that remains our intent. At present, such legislation is essentially the same across Britain, but it differs to a degree where there is a need to relate general fire safety provisions to separate Scottish legislation on, for example, building control or houses in multiple occupation. Because of this similarity, it is only reasonable to expect that the Scottish parliament will have regard to what is happening south of the Border if and when it considers making changes to legislation relating to general fire safety.

For the most part, with regard to general fire safety, there can be no specifically and specially Scottish circumstances or considerations, and that is why both the legislation and the consultation documents on possible changes to it have hitherto been on a Great Britain basis. There is also an existing structure of Great Britain committees and working groups which covers all fire service matters, including general fire safety. We have every reason to suppose that those will continue after devolution.

8 Oct 1998 : Column 644

Even after devolution any new legislative proposals are likely to be on a common basis, north and south of the Border. We should not forget that for some aspects of general fire safety the Scottish parliament will have to adhere to the terms of European Union directives in the same way as Westminster does. Similarly, if the noble Lord has concerns about fire safety references in building control legislation, he may wish to note that the Government envisage that the existing network of contacts and working groups across the Border will continue in this field.

Taking all these considerations together, we feel that there is no need formally to require the parliament to have regard to legislation in England and Wales. However, as I hope I have explained, the Government envisage that the new parliament will do that and that it is most unlikely to diverge from the position in England and Wales unless there are very sound reasons to do so. In the light of all that, I hope that the noble Lord will be able to withdraw his amendment.


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