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(1C) But the Parliament may not impose such a requirement in pursuance of subsection (1B) in connection with the exercise of functions which are exercisable--
(a) by the Scottish Ministers as well as by a Minister of the Crown, or
(b) by a Minister of the Crown only with the agreement of, or after consultation with, the Scottish Ministers.

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(1D) Subsection (1C)(b) does not prevent the Parliament imposing such a requirement in connection with the exercise of functions which do not relate to reserved matters.
(1E) Where all the functions of a body relate to reserved matters, the Parliament may not impose such a requirement on any person in connection with the discharge by him of those functions.
(1F) The Parliament may not impose such a requirement on--
(a) a judge of any court, or
(b) a member of any tribunal").

The noble and learned Lord said: My Lords, Amendment No. 101 is one of a group of amendments to which amendments have been tabled by the Opposition. In moving it my intention is to speak to Amendments Nos. 104 to 110 and Amendments Nos. 118, 227, 229 and 230. I shall also speak to Amendment No. 103A.

The background to these amendments is that Clause 23 was originally framed in a certain way. Since then the ground on which it was originally built has moved considerably, particularly, for example, because of the amendments concerning the legislative competence of the Parliament, which were made in Committee.

In redrafting the clause to take account of these changes we have tried to state in ordinary language what it is that the Parliament may require someone to give evidence about, while preserving the various limitations to the Parliament's powers which are included in the clause as it presently stands.

The key alteration here is that we propose to replace references to "devolved matters" and,


    "other matters in relation to which functions are exercisable by the Scottish Ministers"
with a reference to giving evidence or producing documents,


    "concerning any subject for which any member of the Scottish Parliament has general responsibility".
We think that it is appropriate in this context to use, so far as possible, language which can be given its ordinary meaning, rather than tying the provision to the complexities of "matters", "relating to" and so on.

It is intended that this new formulation will cover what was previously covered, such as functions that are conferred on Scottish Ministers under or by virtue of Clauses 49, 59, 85 and 103, the retained functions of the Lord Advocate and functions of the First Minister. It is also intended to cover areas where the Scottish administration operate but where the Scottish Ministers may have no functions, simply a general overall responsibility.

In doing away with the reference to "devolved matters" we decided that it would not be right to tie a new definition entirely to functions. For example, in the field of health there are large areas of activity where Ministers' specific functions, as such, are limited, as matters stand, to making appointments to the bodies, which exercise direct responsibility for the delivery of services. We would not want there to be any room to argue that the Parliament's powers to hold inquiries into health issues was limited to the narrow "function" of making appointments. It should be able to investigate

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such issues, without facing artificial constraints. Similar issues could arise in areas where local authorities are responsible for the actual delivery of services.

In other words, the wording of the new provision is simply framed to avoid difficulties where it is clear that a particular subject falls within the responsibility of the Scottish administration, but where there may be scope for arguments as to what extent Ministers exercise actual functions in relation to it under existing legislation. Without this general construction, the Parliament could be hampered in the extent to which it is able to conduct effective inquiries into subjects which are clearly devolved. That was not a risk under the previous drafting, which included a general reference to "devolved matters".

I hope that it will help the House if I describe in some detail how the limitations on the parliament's power have been redrafted. I shall deal first with the provisions as regards persons outside Scotland. For those outside Scotland, the parliament can only impose a requirement in connection with a person's discharge of functions of the Scottish administration, or functions of a Scottish public authority or cross-border public authority, or Borders rivers functions, where those functions concern a subject for which any member of the Scottish executive has general responsibility. So, for example, a representative of a cross-border public authority can be summoned only in connection with the functions of that body relating to devolved matters, because only those functions concern a subject for which a member of the Scottish executive has general responsibility. I hope that noble Lords will agree that that reformulation is a sensible recasting of what was already there in subsection (3) of the present clause.

I turn now to Amendments Nos. 101A and 102. The Opposition's Amendment No. 102 seeks to delete the word "general" from general responsibility in subsection (1A)(b) of the new clause, which is about imposing requirements on persons outside Scotland, in particular in connection with the discharge of functions of Scottish public authorities and cross-border authorities. The Opposition's Amendment No. 101A seems to cover similar ground.

I have already explained why we have adopted the new phrase which may be causing noble Lords opposite a certain amount of concern. The word "general" is intentionally included in the drafting to reduce the scope for technical debates about the extent to which a particular issue is or is not the responsibility of Scottish ministers. We think that if we accepted those amendments, the intended position would be less clear. That is why we feel unable to do so.

I turn now to the matter of Ministers of the Crown under this new provision. The parliament will have very limited powers to impose a requirement to give evidence on Ministers of the Crown and their civil servants. The relevant provisions are set out in the proposed new subsections (1B) to (1D).

Again, the intention has been to restate, and where possible clarify, what is already in the clause. In relation to the exercise of ministerial functions, a Minister of the Crown or civil servant may only be called to answer for

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the exercise of such a function in so far as the exercise of that function concerns a subject for which any member of the executive has general responsibility.

The main example of this once more concerns cross-border public authorities. Noble Lords will recall that functions in relation to such authorities do not transfer automatically to Scottish ministers, but those bodies will exercise functions in relation to devolved matters and it is right that the parliament should be able to require a Minister of the Crown or his civil servants to give evidence in relation to his ministerial functions in connection with that authority where that concerns a devolved matter; in other words, a matter concerning which a member of the Scottish executive has general responsibility.

I turn now to Amendments Nos. 103B and 103D. As before, where a function is exercisable by Scottish ministers as well as by Ministers of the Crown; for example, by virtue of Clause 52, the parliament cannot require a Minister of the Crown to give evidence; nor can it do so merely because the Minister exercises a function with the agreement of, or after consultation with, Scottish ministers; for example, because of a provision made in an order under Clause 59(1)(c). This point was covered previously by Clause 23(5)(b) and with the redrafting, the new subsection (1D) is needed to preserve the effect of that previous paragraph. I hope that, again, this provides some reassurance in relation to Amendments Nos. 103B and 103D.

Amendment No. 103E seeks to delete new subsection (1E). Persons discharging functions of bodies, all the functions of which relate to reserved matters, may not be summoned in relation to those functions. That simply restates the provision originally at Clause 23(6)(a), but brings the language into line with that used elsewhere in the Bill.

The protection for judges and members of tribunals is retained. Amendment No. 227, to which I shall return in a moment, provides a definition of "tribunal" for all purposes in the Act, which allows the specific reference to tribunals,


    "which exercise the judicial power of the state",
originally in Clause 23(6)(c) to be omitted. I am sorry that the noble and learned Lord, Lord Hope of Craighead, is not in his place because noble Lords will remember that he was concerned about that point in Committee. I believe that we have now addressed that.

I hope that this reassures the House that what are, I freely admit, complex provisions have not been substantially altered but, as far as possible, made clearer and more compatible with drafting elsewhere in the Bill.

Amendment No. 227 raises a slightly different point. It reflects a point raised in Committee that, although "tribunal" is defined for the purposes of this clause, it is not defined in other contexts in the Bill, most notably in Schedule 6 but also, for example, in Clauses 93 and 95. We think that "tribunal" ought to have a consistent

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definition throughout the Bill. In the Human Rights Bill, "tribunal" is defined as,


    "any tribunal in which legal proceedings may be brought",
and we think that that definition is a sensible one to adopt also in this Bill. I hope noble Lords who have raised this issue will feel that that provides a useful clarification.

I am grateful for Amendment No. 103A. The particular purpose behind the special protection given to Ministers of the Crown in Clause 23(1B) is to avoid the problem of "double accountability"; in other words, the risk that individuals will find themselves answerable to two different parliaments at once. The proposed amendment seeks to extend that protection to those who have in the past been Ministers of the Crown. We are not certain that the amendment is necessary, but we are content to consider the points raised by it and, if necessary, to return at Third Reading with an appropriate amendment.

With that long explanation--I hope that noble Lords will accept that it was unavoidably lengthy--I hope that noble Lords will feel able to withdraw their amendments. I beg to move.


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