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Lord Mackay of Drumadoon: My Lords, the noble and learned Lord has helpfully and fully explained the reasoning behind the principal amendment in this group, Amendment No. 192. Perhaps I may invite him, however, to clarify one point, which is whether in practical terms subsection (2) of the new clause will have any different effect from subsection (6) of Clause 28 as it stands. I say that because when this issue was last debated in Committee, my recollection is that the noble and learned Lord, Lord Hope of Craighead, indicated that, if at all possible, the approach to the construction of legislation in one Bill should be the same as in another.

My amendment to Amendment No. 192, Amendment No. 192A, follows the approach taken in Clause 3(1) of the Human Rights Bill, which states:


Under the Human Rights Bill as amended in another place--it falls to be considered by your Lordships this Thursday--subordinate legislation will include Acts of the Scottish parliament. Therefore, under the Human Rights Bill, they will fall to be construed by the approach set out in subsection (1) which follows a different style from that in the government amendment but a fairly similar style to that of subsection (6). It was probably for that reason that the noble and learned Lord, Lord Hope of Craighead, expressed the wish that, if at all possible, the same approach should be followed, because if the same provision of an Act of the Scottish parliament falls to be construed under two Bills as against convention rights in each instance, it seems desirable that, if at all possible, the two Acts should indicate that that construction should be along similar lines.

I welcome that part of Amendment No. 192 which indicates that this provision should apply at a pre-legislative stage. Obviously, that is the purpose which my amendment, Amendment No. 131, seeks to achieve.

As I have said, my main concern relates to subsection (2) of the new clause that is Amendment No. 192. I want to be quite clear about whether the Government are suggesting a different approach from that on which we have been proceeding until now in this Bill and in the Human Rights Bill.

Lord Renton: My Lords, I am not in broad disagreement with the Government over what they are intending in this group of amendments. However, if

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the Lord Advocate will look at Amendment No. 192 and at subsection (2) of that new clause, he will find that,


    "Such a provision"--
that is, an Act of the Scottish parliament--


    "is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly".
I believe that the word "narrowly" is capable of two interpretations. One is that the provision is to be read so strictly that if there is a doubt, it must be considered outside the competence. I wonder whether the noble and learned Lord would be good enough to consider his view of the wording of that subsection because I am not sure that it is consistent with the broad intention of this group of amendments.

Lord Hardie: My Lords, perhaps I may deal first with the point raised by the noble Lord, Lord Renton. Reading that subsection as a whole, the direction is to read the provision--that is, an Act of the Scottish parliament,


    "as narrowly as is required for it to be within competence".
If there are two possible interpretations, one of which would have the effect of taking the provision outwith competence, while the other interpretation would bring it within competence, that is the direction or instruction that we are hoping to give the court. I hope that that explains what we are about. I hope also that we have achieved our objective with regard to the terminology.

I turn now to the points raised by the noble and learned Lord, Lord Mackay of Drumadoon. Following the earlier stages of the consideration of the Bill, and having regard to the comments of the noble and learned Lord, Lord Hope of Craighead, this matter was given detailed consideration by parliamentary draftsmen and by Ministers with their advice. I would emphasise that there is not very much between us as to the intention behind the provision. The amendments of the noble and learned Lord and our amendments are intended to ensure that the courts do not invalidate an Act of the Scottish parliament. In cases of ambiguity, both amendments require the courts to read an Act of the parliament in such a way as to assume that it was within the legislative competence of the parliament.

The difference is largely one of style. The amendment of the noble and learned Lord is more positive, whereas our position is more negative because it requires the court to read the Act narrowly. This matter has been considered by parliamentary counsel and it is their view that the way it is approached in this provision is more appropriate than the formulation of the noble and learned Lord. I understand how the noble and learned Lord came to such a formulation from the human rights legislation. That particular point was considered by parliamentary counsel and the view was taken that, in the context of this Bill, this terminology was the more favoured and more appropriate.

Lord Mackay of Drumadoon: My Lords, perhaps the noble and learned Lord is able to give an expression of the Government's intention. If a court failed to

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construe an Act of the Scottish parliament under Amendment No. 192, or if it construed it under Clause 3(1) of the Human Rights Bill, in practical terms would the same approach be adopted?

I accept that there are positive and negative ways of putting things. I am sure that the noble and learned Lord will concede that throughout the debate on this Bill we on these Benches have tried to be as positive as possible. Such negativity as there has been has come from other quarters, which I would not care to name in the presence of the noble Lord, Lord Mackie of Benshie.

Joking apart, I am not trying to open up a divide, I am trying to close one off. If it is possible for the noble and learned Lord--either today, on Thursday with the Human Rights Bill or when we come back to this on Third Reading--to make it clear that the form of words used by the parliamentary draftsman in Amendment No. 192 is, in practical terms, necessary to set the courts along an approach identical to that in the Human Rights Bill, that would cover any concern that I have.

Lord Hardie: My Lords, I am quite happy to give that assurance. I will come back and explain the matter more fully at Third Reading, if the House so wishes.

On Question, amendment agreed to.

Clause 29 [Legislative competence: supplementary]:

5.45 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 116:


Page 15, line 18, after ("functions") insert ("in relation to the regulation of sea fishing").

The noble Lord said: My Lords, before I speak to this amendment perhaps I could suggest that, to avoid confusion when we come to amendments which have already been spoken to, it might be handy if Ministers resurrect the old practice of getting up and saying that they have already spoken to them and that they beg to move. That would help us all--including, dare I say, the Government Whip--to follow where we are on the Bill and what we are doing.

Your Lordships might be puzzled by this amendment. When your Lordships read Clause 29(3), which was inserted into the Bill at Committee by the Government, you may wonder why I am attaching the words,


    "in relation to the regulation of sea fishing".
The reason is very simple. When we discussed this matter in Committee on 21st July 1998, this subsection and a number of other amendments, which come later in the Bill, were all moved by the noble Lord, Lord Sewel, on the basis of dealing with a sea-fishing problem. The noble Lord, Lord Sewel, made it perfectly clear in col. 836 of the Official Report that this all had to do with,


    "the exercise of ministerial and other functions in relation to the regulation of sea fishing [which] will often mean that functions are being exercised outside Scotland."--[Official Report, 21/7/98; col. 836.]

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I do not want to pray in aid all that the noble Lord said to prove my point but, perhaps as a resume, I will quote from column 838 of the Official Report where he said,


    "In effect, Scottish Ministers will be responsible for managing fisheries within the Scottish zone and for managing Scottish boats; and MAFF Ministers will be responsible for managing fisheries within the English zone and for managing English boats".--[Official Report, 21/7/98; col. 838.]
Later in column 841 of the Official Report he said,


    "The amendments"--
in plural, including the amendment that incorporated this subsection into the Bill--


    "are required, first, in order to ensure that there is an effective transfer to Scottish Ministers of functions in relation to the regulation of Scottish sea fisheries; and, secondly, to ensure that the competence of the Scottish parliament and of Scottish Ministers does not extend to regulating sea fishing by non-Scottish boats outside the Scottish zone of British fishery limits".--[Official Report, 21/7/98; col. 841.]
In other words, the whole debate was very much predicated on the fact that the whole group of amendments concerned sea fishing.

I said in my response that I accepted and understood what was being done. But I was puzzled as to why the first amendment--which is the amendment that we now see as Clause 29(3)--had no reference to sea fishing in it. The Minister said he would reflect on what I was saying during the summer. As he has not brought forward any amendments, clearly he has reflected and he has decided that he does not need to do anything.

As it stands, the functions in Clause 29(3) appear open-ended. It is quite a widely drawn subsection. We know from what the Minister said in Committee that it governs matters entirely relating to sea fisheries. For the avoidance of doubt we should put into the legislation the phrase that I have inserted so that it reads,


    "specify functions in relation to the regulation of sea fishing".

No doubt the Minister will give me further assurances, but it would be easier if it was clear on the face of the Bill that this particular subsection referred to the regulation of sea fishing. I beg to move.


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