Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Kingsland moved Amendment No. 46:

Leave out Clause 107.

The noble Lord said: My Lords, the purpose of this amendment is to raise two questions in relation to Clause 107 (b), which is that part of the clause which deals with the circumstances in which subordinate legislation is made when a member of the Scottish Executive exercises a function improperly.

I apologise to the noble and learned Lord the Lord Advocate for raising this issue in a manner which is often described as a probing amendment. At the Committee stage he addressed the House at length on Clause 107(a); and at the Report Stage my noble and learned friend Lord Mackay of Drumadoon, in a moment of uncharacteristic inadvertence, withdrew this amendment when the noble and learned Lord the Lord Advocate would have had the opportunity to answer the questions that I now ask.

The first issue concerns the definition of ultra vires. Is ultra vires in Clause 107(b) ultra vires in the sense of a member of the Scottish executive exercising a function which encroaches upon reserved powers; or does ultra vires have a meaning in the wider and more general sense of ultra vires in administrative law?

The second issue concerns the circumstances in which it is discovered that a member of the executive has exercised this function ultra vires. Quite often the discovery will be made in connection with judicial proceedings. I can quite see why subordinate legislation might be made subsequent to judicial proceedings to correct a matter which has encroached upon the reserved powers. But in my submission it would be quite improper for such legislation to be made during judicial proceedings. Indeed, were that done, it would breach the fundamental principle of the separation of powers which has been a hallmark of our constitution for the past 300 years. I beg to move.

Lord Mackay of Drumadoon: My Lords, perhaps I should begin by apologising to my noble friend for my inadvertence to which he understandably drew attention. Noble Lords who have followed our debates with interest will know that on a number of occasions we

9 Nov 1998 : Column 599

have touched on the terms of both Clause 105 and 107 and other clauses which give either to the United Kingdom Government or to the new Scottish executive the power to make subordinate legislation of a quite wide-ranging nature. Therefore I am sure the whole House--and, more importantly, perhaps the lawyers who will need to interpret this Bill when it becomes an Act of Parliament--would very much welcome an answer to the two succinct points that my noble friend raises.

Lord Sewel: My Lords, with Amendment No. 46 noble Lords opposite seek to delete Clause 107. I think the noble Lord, Lord Kingsland, recognised that as a probing amendment device. He will not be surprised to hear that we consider Clause 107 to be an important part of the Bill and that we cannot accept its deletion.

Clause 107 gives a power to the UK Government to make any provision that may be necessary or expedient in consequence of an ultra vires Act, or a suspected ultra vires Act, either of the parliament or of the executive. It enables problems which may result from an ultra vires provision of an Act of the Scottish parliament or actions of the Scottish executive to be addressed. Subordinate legislation will be able to make such provision as is necessary or expedient to remedy the problem. The subordinate legislation which does this may be retrospective in effect and may amend any enactment including an Act of the Scottish parliament or secondary legislation.

I hope noble Lords will agree that this is a sensible provision. There may be occasion where it is necessary for the remedial action to be taken quickly to address the consequences of ultra vires legislation or action. In most cases, of course, we would expect the Act to be referred back to the Scottish parliament. However, this may not always be possible. There will be circumstances where it would be outwith the competence of the Scottish parliament to pass any necessary remedial provision. Clause 107 gives the UK Government the power to make provision. Ultra vires in this context relates to the functions of a member of the Scottish executive which are those conferred upon him or her by the Bill, but the provision is not limited to that and would extend to other ultra vires matters although it is aimed at the specific competence of Scottish ministers.

It is not intended that the power contained in this clause should be used as a form of legislative override, and for this reason it is intended that this power should only be used with the consent of Scottish ministers, where that has not been a court decision. If there was no such consent then the appropriate method for resolving any dispute about vires would be to raise the matter in the courts as a devolution issue. I hope that gives some help to the noble Lord, Lord Kingsland, in relation to the questions that he asked.

9.15 p.m.

Lord Mackay of Drumadoon: My Lords, before the Minister sits down, could he please clarify one point that he made in relation to the power not being used except with the consent of the Scottish ministers? As I

9 Nov 1998 : Column 600

understand Schedule 7, the procedure to be followed for exercising the power under Clause 107 would be Type G, which would require that,

    "the instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House".

That procedure, as I understand it, would not require the consent either of the Scottish executive or of the Scottish parliament. I rather suspect that the two questions my noble friend has identified are really rather good ones. It may be a little late in the day to consider revising the terms of Clause 107, but I suspect there is force in the points he made. That suggests to me that the prudent course for the Government to follow would be to accept this amendment, reflect on the arguments which have been advanced by my noble friend and bring forward in another place a substitute for Clause 107 which would take account of the valid concerns he has raised not only as to the breadth of the clause which would cover any form of ultra vires but also the timing of such an order were it to impinge on the separation of powers.

The Earl of Balfour: My Lords, before the Minister replies, I wonder whether, with the leave of the House, I could refer to Amendment No. 64 in the name of the noble Lord, Lord Sewel. In that addition to the last part of Schedule 4 perhaps Clause 105 should be added to Clause 107. I thought, from what has been said, that provisions in this additional paragraph to Schedule 4 cover quite a lot of what has been said.

Lord Thomas of Gresford: My Lords, before the noble Lord the Minister replies, I wonder if I could--

Lord McIntosh of Haringey: My Lords, this is an Opposition amendment and the Opposition spokesman has already wound up, as far as I can tell. We have now had three interventions and I do not think we can have any more.

Lord Sewel: My Lords, perhaps I may clarify the point. The noble and learned Lord, Lord Mackay of Drumadoon, is quite right. This is a Type G procedure, which means that it falls to Westminster alone. However, the expectation is that the convention would develop in the way that I outlined in my original contribution.

Lord Kingsland: My Lords, I am not sure whether the prohibition of the noble Lord, Lord McIntosh, extends to me, as the mover of the amendment. The noble and learned Lord, Lord Mackay of Drumadoon, has, as on so many occasions in the past, saved me from the intellectual effort of rounding off my amendment, save for this: I hope the noble Lord the Minister will consider very carefully the scope of ultra vires in Clause 107. I listened very carefully to his reply and I think he went part of the way towards me but not quite as far as I would have hoped. It would be constitutionally a very questionable exercise if, for example, subordinate legislation could issue to, in effect, change the decision

9 Nov 1998 : Column 601

of a court that a Minister had breached the rules of natural justice. In my submission, Clause 107(b) is not clear about whether that would be the case or not.

The Deputy Speaker (Lord Elton): My Lords, does the noble Lord wish to move or to withdraw his amendment?

Lord Kingsland: My Lords, in the circumstances I think it would be wrong of me to press this matter to a Division and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 111 [Regulation of Tweed and Esk Fisheries]:

Lord Sewel moved Amendment No. 47:

Page 52, leave out line 20.

The noble Lord said: My Lords, I beg to move Amendment No. 47 formally.

On Question, amendment agreed to.

Clause 126 [Interpretation]:

Lord Sewel moved Amendment No. 48:

Page 59, line 12, at end insert ("and includes an enactment comprised in, or in subordinate legislation under, an Act of Parliament, whenever passed or made").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Baroness Ramsay of Cartvale moved Amendment No. 49:

Page 60, line 3, at end insert--
(""standing orders" means standing orders of the Parliament,").

The noble Baroness said: My Lords, I do not want the noble and learned Lord, Lord Mackay of Drumadoon, to become as sensitised to my use of the word "drafting" as he did at an earlier stage to my use of the word "technical", but Amendments Nos. 49 and 51 are indeed drafting amendments. They add to the Bill a definition of "standing orders" for the purposes of the Bill. Amendment No. 49 makes it clear that references in the Bill to standing orders are always to those of the parliament itself. A further amendment, Amendment No. 51 to Clause 127, adds that definition to the index of defined expressions. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page