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Lord Sewel: My Lords, the noble Lord is right. In a coalition situation it would be a breach of the spirit of the amendment if the two coalition parties took the whole lot. I recognise that.

Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister for that assurance. It would be very difficult to write those kind of circumstances into the legislation. We have made progress and I am grateful to the Minister both for tabling his amendment and for his assurances from the Dispatch Box about the Government's intention behind the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 to 78 not moved.]

Lord Sewel moved Amendment No. 79:

Page 9, line 28, at end insert--
("( ) The validity of any act of the Presiding Officer or a deputy is not affected by any defect in his election.").

22 Oct 1998 : Column 1675

The noble Lord said: My Lords, we now begin to turn to an issue which has been of concern to your Lordships' House as we have discussed this Bill through Committee. I refer to the degree of protection afforded to the parliament. We raise it here initially in a relatively modest way. It is dealt with elsewhere, after Clause 36, by Amendment No. 138 which stands in my name. That is a more substantive and substantial issue.

We were particularly struck during earlier debates on this subject by the strength of feeling on all sides of the House that the parliament should be able to go about its business without undue interruption from the courts. We took the message from that that perhaps the Bill did not say quite enough on that score. This group of amendments is the consequence of our further consideration of this point. Amendment No. 138 takes the protection argument further. We think it would be sensible to ensure that the validity of the acts of the various office holders cannot be questioned because of some defect in their appointment; in particular, any defect in any parliamentary proceedings which have to be followed before the relevant appointment.

We have provided such protection for the presiding officer and his deputies, members of the Scottish executive and junior Ministers and the auditor-general. We have also taken the opportunity to recast the provision already in Clause 27(5) to make it quite clear that the intention there is to ensure that an Act of the parliament is not affected by any validity in the proceedings leading to its enactment. As I said, this is the first stage in trying to deal with the problems of protection of the proceedings of the parliament and to avoid undue interference by the courts in the affairs of the parliament. We shall return to these points on a later amendment. This is the beginning. I beg to move.

11 p.m.

Lord Mackay of Drumadoon: My Lords, I very much welcome this amendment and the other amendments with which it is grouped. For reasons which I shall explain at a later stage of Report, I do not feel that they go far enough, but I have no doubt that the amendments are all sensible and welcome. No objection is offered to any one of them.

On Question, amendment agreed to.

Clause 20 [Scottish Parliamentary Corporate Body]:

Lord Sewel moved Amendment No. 80:

Page 10, line 7, leave out subsection (5).

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 81:

Page 10, line 16, leave out ("virtue of") and insert ("or under").

The noble and learned Lord said: My Lords, this is a minor and technical amendment to ensure consistency of drafting throughout the Bill, particularly in Clause 60(4). I beg to move.

On Question, amendment agreed to.

22 Oct 1998 : Column 1676

Schedule 2 [Scottish Parliamentary Corporate Body]:

Lord Hardie moved Amendment No. 82:

Page 62, line 35, leave out ("or").

The noble and learned Lord said: My Lords, in moving this amendment, I wish also, with the leave of the House, to speak to Amendments Nos. 83 to 86.

Paragraph 1 of Schedule 2 provides that a person who is appointed to be a member of the SPCB under Clause 20 will cease to hold office when one of three sets of circumstances applies. These are where another member of the Scottish parliament is appointed in his place, where he resigns or where he ceases to be a member of the Scottish parliament otherwise than by virtue of dissolution. The purpose of Amendments Nos. 82 and 83 is to make express provision for the parliament to be able to remove a member of the board from office. This would be by resolution of the parliament and is consistent with the express provisions made for the removal from office of the presiding officer and his deputies.

Amendment No. 84 is a technical amendment in relation to pension provisions for staff of the parliament. The purpose of Amendment No. 85 is to clarify that the SPCB will be able to charge for goods and services provided in performing its functions. For example, such a function could include the provision of catering facilities for members. The purpose of Amendment No. 86 is to make provision for the SPCB to be able to sell goods such as souvenirs to the public and also to provide services to the public. I beg to move.

Lord Mackay of Drumadoon: My Lords, we can once again accept all these amendments without question. I suppose it will be a matter of regret to the MSPs that they have to pay for their food and drink, which I understand to be the purpose of Amendment No. 85, and I wish the shops which will be set up under Amendment No. 86 well and hope that the House whisky is as successful there as it certainly is in your Lordships' House.

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 83 to 86:

Page 62, line 36, at end insert ("or is removed from office by resolution of the Parliament.").
Page 63, line 14, leave out ("Accordingly,") and insert ("In particular,").
Page 63, line 23, at end insert--
("(aa) charging for goods or services,").
Page 63, line 26, at end insert--
("(2A) The corporation may sell goods or provide services, and may make arrangements for the sale of goods or provision of services, to the public.").

On Question, amendments agreed to.

Lord Hardie moved Amendment No. 87:

Page 63, line 37, leave out ("proceedings") and insert ("act").

On Question, amendment agreed to.

22 Oct 1998 : Column 1677

Lord Selkirk of Douglas moved Amendment No. 88:

After Clause 21, insert the following new clause--

Record and broadcasting of proceedings

(" .--(1) The proceedings shall be recorded by any means which the Parliament thinks fit.
(2) The record made under subsection (1) above shall be capable of being referred to in any proceedings for the purpose of clarifying any ambiguity or lack of clarity in an Act of the Scottish Parliament or any subordinate legislation passed by the Parliament.
(3) The proceedings may be broadcast in any way which the Parliament may agree.").

The noble Lord said: My Lords, this amendment allows for the recording and broadcasting of the proceedings of the Scottish parliament. It provides also authority to allow the rule in Pepper v. Hart, which was in [1993] 1 All England Reports on page 42 regarding references in court to the parliamentary record.

Until that case was decided, the parliamentary record of Hansard could not be referred to for the purposes of explaining an Act of Parliament. That case relaxed the rule and allowed reference to parliamentary materials where the legislation was ambiguous, obscure or led to an absurdity; or where the material relied on consisted of one or more statements by a Minister or other promoter of the Bill together, if necessary, to understand such statements and their effect; and where the statements relied on are clear.

That case was binding on Scotland in respect of Hansard reports alone. Although it is very likely to be extended by analogy to the Scottish parliamentary record, that application will not be automatic and would require to be raised in a case or decided upon by a court.

The consultative steering committee group secretariat hinted at that in its departmental proposals regarding the options for reporting the parliament's procedures when it stated:

    "The courts can in certain circumstances refer to Hansard in construing legislation and the Official Report in Scotland may also be used in a similar way post-devolution".
It is surely more appropriate for legislation to deal with that at this point. This amendment is necessary to extend the advantages of Pepper v. Hart to the Scottish parliamentary record and to make absolutely certain that broadcasting and recording of the proceedings of parliament are admissible in court in order to explain what the intention of the legislation both was and is. I beg to move.

Lord Mackay of Drumadoon: This matter was debated in Committee on 14th July. The view was then expressed by the noble and learned Lord, Lord Rodger of Earlsferry, that there may be doubt whether it was necessary to have such a provision on the face of the Bill if the Government could give an assurance that they expected that the court, in the interpretation of any Act, could refer to the proceedings in the Scottish parliament in the same way that courts refer to proceedings under Pepper v. Hart under the present regime.

22 Oct 1998 : Column 1678

In reply, the noble and learned Lord the Lord Advocate indicated that that was the Government's position. However, he went on to say:

    "The question of interpretation of the Acts of the Scottish parliament will be a matter for the courts. The Scottish parliament itself may pass legislation similar to the Interpretation Act to assist in the interpretation of Acts of Parliament. But unless such provision is made by the Scottish parliament about construing a particular Act or Acts of Parliament, in my submission, the courts would apply the same canons of construction, including reference to the proceedings in parliament in cases of ambiguity. I see no reason for any difference between construing an Act of the Scottish parliament by the courts and an Act of the UK Parliament. In certain limited circumstances, it may well be appropriate to look at the proceedings in the Scottish parliament".--[Official Report, 14/7/98; col. 248.]

Reflecting on what the noble and learned Lord the Lord Advocate said on that occasion, a thought struck me as to whether it would be within the legislative competence of the Scottish parliament to enact legislation indicating how the English courts or the Northern Irish courts could construe Acts of the Scottish parliament because having regard to the provisions of Clause 28(2)(a), there may be an argument that such an interpretation Act would form part of a law of a country or territory other than Scotland.

In reflecting on that, it seemed that there may well be force in the concern that the Law Society expressed, which is along the following lines: that, even though we would expect the Pepper v. Hart approach to be followed by courts throughout the United Kingdom, nevertheless there may be some sense in putting the middle part of this amendment on the face of the Bill. Subsection (1) would be necessary to make subsection (2) work, and subsection (3) would be a matter for the Scottish parliament itself. I have no strong view on that one way or the other, though personally I would wish the proceedings to be broadcast.

I am concerned that, while subsection (2) may come to pass, lying behind this there may be a matter of concern that, if the Scottish parliament is to be given powers to require the Scottish courts to interpret legislation in a way different from the canons of construction that would apply to UK statutes, that could be extended extra-territorially into England, Wales and Northern Ireland. It does not arise directly from the amendment but seems to lie behind it and I invite the noble and learned Lord the Lord Advocate, his colleagues and officials, to reflect on that before the Bill leaves your Lordships' House.

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