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Lord Monro of Langholm: My Lords, I am grateful to the Minister for his good humoured reply. Will he ask his fisheries department to continue negotiating with the MAFF fisheries department so that there is not a complete void next summer. Maybe there will be some light at the end of the tunnel. I appreciate the complications. I have been deeply involved in them umpteen times. We always fall down at the end of the day, but this time we have to get it right. I am grateful to the Minister and his department for the efforts they have made. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

2 Nov 1998 : Column 119

[Amendment No. 204 not moved.]

Clause 104 [Subordinate legislation: general]:

Lord Sewel moved Amendment No. 205:


Page 48, line 28, leave out subsection (6).

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 205ZA:


Page 48, line 35, at end insert--
("( ) The standing orders of the Parliament shall include provision for the exercise of appropriate control by the Parliament over the passage of delegated legislation created by a Scottish Minister by virtue of this Act or under powers conferred by the Parliament.").

The noble Lord said: My Lords, this amendment takes us into Schedule 7 although the amendment itself refers to Clause 104. When I was considering the schedule last Thursday and looking at the various provisions for affirmative and negative orders, as we understand them in this Parliament, I wondered where provision was made in the Bill for similar procedures in the Scottish parliament. I could not find any such provision setting out that secondary legislation had to be dealt with by either affirmative or negative procedures or saying that standing orders had to be devised to deal with secondary legislation along the lines of the affirmative and negative procedures.

The reason why this is important is that in paragraph 2 of Schedule 7 the types of procedure are listed. They include the ones we know about. Perhaps I may just read out one of them, which is Type A. It states:


    "No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument--


    (a) has been laid before, and approved by resolution of, each House of Parliament".
That is clear as regards this Parliament. Type E, for example, must be financial. It is an affirmative resolution of the House of Commons. Others relate to either House. We know exactly what is meant because the procedures here on how we deal with secondary legislation are well established. It is either by the affirmative procedure which, as noble Lords know, means that the Government have to table a Motion and find time for a debate. In the other place a Division has to be won on that debate if one is called. In your Lordships' House there is the convention that the House is not divided on secondary legislation.

There is the negative procedure under which a vast array of orders are made. Essentially, it is for the Opposition or an aggrieved Member to put down a Prayer saying, "Please annul these." If nobody tables a Prayer, then after, I believe, 40 days, they simply pass into law. That is the negative procedure. It is less taxing because the Government obviously do not have to find time to debate either on the Floor of the other place, in Committee, or in your Lordships' House, the piece of secondary legislation.

As I understand Schedule 7, it assumes that the same kind of procedures will apply in the Scottish parliament. For example, in Type A, in addition to there being the affirmative procedure in each House of Parliament, both

2 Nov 1998 : Column 120

in the Commons and in your Lordships' House, the instrument also has to be laid before and approved by resolution of the parliament--in other words, the Scottish parliament. Type D specifically concerns the Scottish parliament. The instrument has to be laid before, and approved by resolution of, the parliament. Type J is the negative procedure. Schedule 7 states:


    "The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the Parliament".
That is the negative procedure. But nowhere can I find any provision in the Bill that the Scottish parliament has to have these procedures and that the standing orders should contain such provision.

My amendment may not be necessary. However, if I am right and there is no provision in the Bill, perhaps my amendment is necessary. My amendment does not lay down the detail of what the parliament should do. It simply says:


    "The standing orders ... shall include provision for the exercise of appropriate control by the Parliament over the passage of delegated legislation ... by virtue of this Act or under powers conferred by the Parliament".
By that I mean that, in order to accord with the types of procedure laid down in Schedule 7, the standing orders will have to make provision in the Scottish parliament for similar types of procedures to those to which we are accustomed in the Westminster Parliament.

This has been a quite convoluted explanation. Perhaps the Minister will tell me that I have misread the Bill and that the provision is there. I shall then be satisfied. But if it is not there, I suggest that it ought to be there and that we ought to consider that very seriously. I beg to move.

10.30 p.m.

Baroness Ramsay of Cartvale: My Lords, we have now had a number of debates about what is appropriate for this Parliament to require the Scottish parliament to include in its standing orders. This amendment raises another point on what in fact is familiar ground, although the noble Lord has raised specific points about the affirmative and negative procedure with which I should perhaps deal right away.

The transitional provision will be made under Clause 121, expanding on what is meant by affirmative and negative procedure in the Scottish parliament under the Statutory Instruments Act 1946. It will be applied with modifications until the Scottish parliament makes its own provision. While the Bill requires standing orders to address a number of aspects to do with the passage of primary legislation, we think it has been quite properly silent on the procedures for secondary legislation. The noble Lord, Lord Mackay, is looking puzzled. Am I not addressing the points he was making?

Lord Mackay of Ardbrecknish: My Lords, perhaps the noble Baroness would like to repeat that last sentence. I was busy trying to read Clause 121.

Baroness Ramsay of Cartvale: My Lords, I am sorry. I thought the noble Lord looked as if he was about to intervene with a query. While the Bill requires

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standing orders to address a number of aspects to do with the passage of primary legislation, as I have said many times at earlier stages of the Bill we think it is quite properly silent on the procedures for secondary legislation.

I entirely agree with the noble Lord that it is important that the Scottish parliament should exercise appropriate control over the passage of delegated legislation. I do not think anyone would be in dispute about that. The Delegated Powers and Deregulation Committee accepted that it would be for the parliament to decide, in the face of each new delegated legislative power, what was the right measure of scrutiny and control. The committee did not make a recommendation but it made a suggestion that the House might wish to consider whether Schedule 3 standing orders should be amended to make plain that standing orders will address this issue. We gave careful consideration to the suggestion of the Select Committee--I repeat that it was only a suggestion--that Schedule 3 should be amended to make plain that the standing orders would address the issue of scrutiny of secondary legislation.

Moreover, as I promised the noble Lord, Lord Mackay, and indeed other noble Lords in Committee, we looked most carefully at the whole subject again and considered what was said at that time. However, I have to say that we have concluded that detailed parliamentary procedures are better left to the Scottish parliament to devise. We think it right that it should be able to decide its procedure for itself. We believe that the parliament will act maturely and responsibly in this area, as, indeed, in others. As we are devolving power to the parliament, we believe that we should allow it to have the discretion to exercise its power over subordinate legislation wisely and that we should trust it to exercise that power properly. We are sure that we can rely on the parliament to make provision for the scrutiny of subordinate legislation in its standing orders.

I should add that the Statutory Instruments Act 1946, which makes detailed provision as to affirmative and negative procedure in this Parliament, will be applied in relation to subordinate legislation subject to the affirmative or negative procedure in the Scottish parliament until the latter makes its own provision. In view of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Mackay of Ardbrecknish: My Lords, clearly I have stumbled across something that was of some interest. As far as I understand what the noble Baroness said, the transitional arrangements will be covered by Clause 121 and existing legislation of the UK Parliament. Therefore, the types of procedures contained in paragraph 2 of Schedule 7 will be dealt with by that means. However, beyond that transitional position I become somewhat worried. The noble Baroness reminded me that, although the Delegated Powers and Deregulation Committee pointed this out, the Government decided that they did not need to take any steps looking beyond the transitional period. Yet beyond that period, I presume that Schedule 7 would still rule and the types of procedures there would have to be undertaken by the Scottish parliament. Therefore, in a way we are dictating to the Scottish parliament that it

2 Nov 1998 : Column 122

will be required to have secondary legislation along the lines of the types of procedure laid out in paragraph 2 of the schedule.

I am a little puzzled about the latter. It does not seem to me to be right that the Bill can be silent into the future about what should be contained in standing orders with regard at least to the broad-brush approach of secondary legislation; namely, that there should be provision of some kind for something which looks like affirmative orders, as witness Type D in paragraph 2, and something that looks like negative procedure, as witness Type J. To be honest, I am reticent to back off from my very non-prescriptive amendment because this does leave the decisions to the Scottish parliament while making it clear that it has to bring forward standing orders to exercise the appropriate control. It does not seem to me to be any more prescriptive than Clause 34 with regard to the general debates on Bills.

As I said, I am almost reluctant to let this one go at this time of night. But I think that the best I can do is to study the noble Baroness's response and perhaps return to the matter on Third Reading if I still feel that something is not quite right. Indeed, I am almost tempted to see how many of your Lordships are still here at this time of night, but that would preclude me from returning to the matter once I have studied the Minister's response and taken some advice upon it. Therefore, in order to try to get the Bill right as far as concerns the Scottish parliament, I shall read the Government's reply. If anything else has to come to help me in that respect by way of a letter, it had better come quickly before this Thursday when I shall decide what to do for next Monday. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 [Subordinate legislation: scope of powers]:


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