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Lord Sewel: My Lords, I had intended to deal with these matters when we discussed Amendment No. 138. I am happy to deal with them now or when we discuss that amendment but I should prefer not to deal with it on two occasions. Perhaps the noble and learned Lord, Lord Mackay of Drumadoon, will indicate whether he wants the explanation now or later.

Lord Mackay of Drumadoon: My Lords, if it is convenient, I should like to hear the explanation now.

Lord Sewel: My Lords, I thought the noble and learned Lord might say that. He is quite correct to say that he wrote to me seeking clarification of the provision in Clause 27(5).

The intention is that that provision should have the effect that an Act of the Scottish parliament may not be challenged on any procedural grounds. In that respect, it is intended to make the position of an Act of the Scottish parliament similar to that of an Act of the Westminster Parliament.

I understand that the position regarding Westminster Acts has been discussed in a number of judicial cases. The effect of those cases is that the validity of a Westminster Act cannot be challenged on the basis of arguments about the legitimacy of, for example, the manner in which an Act has been introduced as a Bill; or what was done previous to its introduction; or what passed in Parliament during the various stages of its progress through the two Houses.

Clause 27(5) is intended to confer similar protection on Acts of the Scottish parliament. Accordingly, the intention is that Clause 27(5) should certainly preclude challenges to the validity of an Act of the Scottish parliament on the basis that standing orders have not been properly followed during the parliamentary passage of that Act as a Bill. However, it is intended that it should preclude also challenges on other procedural grounds where it is suggested that a procedural rule of the parliament has not been followed. Therefore, an Act of the Scottish parliament will therefore be in a different position from subordinate legislation which can be challenged on the basis that the procedure prescribed for making the subordinate legislation has not been complied with. I hope that that gives a range of fairly comprehensive assurances which the noble and learned Lord sought.

Lord Mackay of Drumadoon: My Lords, I regret to disappoint the Minister. I am not sure that it provides all the safeguards that I am seeking. However, his response has been extremely helpful in that it clarifies the Government's intentions in relation to this

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amendment. That will be extremely useful not in relation to Amendment No. 138 but in relation to another amendment which we shall reach next week. Therefore, I am grateful to the Minister.

On Question, amendment agreed to.

Lord Steel of Aikwood moved Amendment No. 113:


Page 14, line 25, at end insert ("in relation to reserved matters").

The noble Lord said: My Lords, this refers to Clause 27(7) which at present states:


    "This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland".
I wish to add the words "in relation to reserved matters". I am well aware that the Government will tell me that nothing in this legislation prevents this Parliament acting in its sovereign capacity in any way in the future that it so wishes. Indeed, if the Conservative Party were swept to power at the next election it will have the power to introduce legislation to abolish the Scottish parliament and all the work that we have been so painfully putting together. Were they to do that, I am sure that that would lead fairly quickly to the break-up of the United Kingdom. But there is no question that this Westminster Parliament retains absolute power over what happens under the provisions of this Bill.

Having said that, in my view there is no reason to have subsection (7) in the Bill at all. It is entirely unnecessary and otiose. But it is more than that. As worded at present, it is provocative and, indeed, positively offensive because it almost invites this Parliament to meddle in future in the law-making of Scotland on those matters which this Bill devolves to Scotland. That cannot be right. I hope that even if the Government do not accept the amendment or agree to delete subsection (7) altogether from the Bill, they will assure us that it is not intended that this Parliament in future should intervene in matters or attempt to make laws on those issues which we are busy devolving to Edinburgh at present.

It is important to have a clear statement on this because of an exchange which took place in this House on 4th March. It is my understanding that when the parliament is devolved the only residual Scottish executive responsibility here will be through the Secretary of State for Scotland whose post continues. Therefore, I assume that there will have to be some opportunity for Members of the other place to question the Secretary of State for Scotland on his responsibilities because he will be a Minister of the Crown and answerable to this Parliament. Clearly, Scottish Question Time, as we have known it up to now, will change. Almost all of the matters for which the Secretary of State is at present responsible will be devolved, and therefore Scottish Question Time in the House of Commons will cease the minute the Scottish parliament is up and running. That is my understanding.

The reason I raised this issue is that on 4th March the noble Lord, Lord Taylor of Gryffe, asked the then Leader of the House, the noble Lord, Lord Richard,

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what would be the consequence of that change in relation to this House. He said,


    "Is my noble friend aware that from that date"--
the date on which the Scottish parliament comes into being--


    "Scottish Questions will no longer be in order in the House of Commons?".
That is not strictly correct and I have described the situation that will obtain. The noble Lord continued,


    "Can we have some assurance that similar strictures will not be applied in the House of Lords in these new constitutional arrangements?".
The noble Lord, Lord Richard, replied,


    "My Lords, I am aware of no rules of order in your Lordships' House which would prevent a noble Lord from putting down such a question".--[Official Report, 4/3/98; col. 1200.]
That cannot be a complete or accurate answer. Who would answer Questions in this place on behalf of the Scottish executive and the Scottish parliament? It clearly cannot be right that Questions of that kind could be put in this House or in the other place.

I am grateful to the noble Lord, Lord Molyneaux of Killead, for drawing my attention to the fact that, during the days of Stormont, that was exactly what happened. There were no Questions on devolved matters in either House of Parliament, and there can be no Questions on devolved matters once this Act is in operation. Clause 27(7) as it stands, therefore, is dangerous and misleading. I should like to see it either amended or withdrawn, or at any rate to be given a clear statement from the Government as to the absolute limits that will be placed on future interventions from this Parliament in the internal affairs of Scotland after the Scottish parliament is up and running. I beg to move.

Lord Mackay of Ardbrecknish: My Lords, I had not intended to take part in the debate on this amendment because I had not understood what the noble Lord, Lord Steel, was getting at. However, having listened to him, I am tempted to rise to my feet and make a few observations.

First, we have been over this ground firmly with regard to many matters which are devolved but yet have a competence at Community level; for example, agriculture and fisheries. It was made clear to me that, despite these matters being devolved on the face of the Bill, Scottish Members of either this House or the other place could raise Questions on agriculture and fisheries in Scotland so long as they related to the common agriculture or common fisheries policies, or negotiations going on in relation to either.

As I understand it--the Minister made it clear to me and we were grateful for that--the position will be that the Minister for Agriculture, and in this House the Parliamentary Secretary, Ministry of Agriculture, will answer Questions on Scottish matters pertaining to agriculture and fisheries so far as they relate to the common agricultural and common fisheries policies. That is pretty well all of them and therefore gives us carte blanche to continue asking Questions, as my noble friend Lord Monro did yesterday when he asked about the problems of Scottish agriculture.

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If we go a little further into areas such as health and education where Community competence is not relevant, the money that will be spent by the Scottish parliament will be voted for by the other place. It seems to me, therefore, that, with a little ingenuity, any Member of the other place could ask Questions about devolved Scottish matters so long as he or she ties the Question into the money voted by the House of Commons to be sent to the Scottish parliament.

Therefore Questions ought to be allowed in the other place in these matters. What I am not sure about is who will answer them. Frankly, I do not believe that the office of Secretary of State for Scotland will last very long after the devolution settlement comes in. Let us assume that, at least in the short term, he will answer. Am I right in assuming that he will be held answerable for the money sent and spent and therefore he will have to answer Questions?

Those are matters to which we will probably struggle to find answers. Whether we will find answers to them on this side of May or whether they will develop in the post-devolutionary phase is a different matter. I shall be interested to hear the Government's response.

5.15 p.m.

Lord Fraser of Carmyllie: My Lords, for slightly different reasons to the noble Lord, Lord Steel of Aikwood, I wondered why this provision was included in the Bill. Let us envisage the circumstance that it is not in the Bill. It does not seem to me that any possible restriction could be imposed on the power of this Parliament to legislate for Scotland at some point in the future.

Unlike the noble Lord, Lord Steel, I am not interested in having a statement of present intention from the Government. As I understand the constitutional theory, a future government would be perfectly entitled, where there is only a devolved parliament, to make laws for Scotland, not least (though I would not advise it) repealing this Act. If there is anything to be said for the Government, it is that at least they have been honourable in stating on the face of the Bill that this remains the case. It does not add or subtract anything to what is the proper constitutional position.


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