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Lord Mackay of Ardbrecknish: My Lords, I echo the point made by my noble friend Lady Carnegy of Lour about the Explanatory Note. I think the Minister was in her place when I made the point earlier. This one is markedly worse because it does not explain the bulk of the text. That relates, I think my noble friend said, to 21 Acts of Parliament and makes amendments to them. Frankly, choosing at random paragraph 10, without going to the Fisheries Act 1981 one would not have a clue as to what was being done. That is what ought to be explained. The Explanatory Note tells us why things have to be changed. My noble friend and I understand and appreciate that. But what we should have explained to us is what the changes are in each individual paragraph. I wonder if the next time--and there will be a next time--the Minister comes forward with an order under the precommencement powers we will have an Explanatory Note which actually explains what has been changed and why it needs to be changed. I can understand one or two items. Clearly, the prorogation and dissolution of Parliament had to be dealt with by putting in the Scottish Parliament. I can understand that. The recess point I can understand. But the Fisheries Act item, I am afraid, would be quite beyond me unless I went to the Library and looked up the Act of Parliament. That is perhaps asking people to go a bridge too far. I hope the Minister appreciates that. I am not necessarily expecting an answer about the Fisheries Act 1981, but I hope the Minister will take the point away and next time perhaps her officials can actually explain the changes made to the legislation. That is a major point. I hope that the Minister will take it on board.
My noble friend Lady Carnegy referred to paragraph 21. As my noble friend was speaking it occurred to me to question the Minister on the concept of a remedial order. I do not know if the Minister recalls--if she does not, I am happy to have a letter about it--the case recently where a lady was charged with being drunk in charge of a car and had not actually been in a car. She had been walking with an unsteady gait around a supermarket car park. She admitted to having driven the car to the car park. She was charged. However, the case was thrown out because the Road Traffic Act under which she was obliged to admit that she had been the driver of the car was incompatible with the ECHR. The Minister clearly remembers the case. I am a little unsighted about it from thereon in.
All I remember is that when I asked the question here I was assured that the Lord Advocate was still considering whether to appeal. I am not sure whether he has appealed. Perhaps the Minister can tell me. I think there was some doubt when I asserted that the problem would become larger and might affect speeding cases. Last week I read in the papers that indeed it did affect speeding cases, but south of the Border. It is becoming a very large problem. Will the Scottish Parliament be able to bring forward a
I appreciate that that is rather a fast ball to bowl on the basis of the order. But I have known the Minister over many years and I am absolutely confident that she will be able to give me an answer. If my confidence is misplaced, I should be happy to accept some information about these matters in writing.
Lord Thomas of Gresford: My Lords, the former Secretary of State for Wales, Mr Ron Davies, in a telling phrase, said that devolution is a process and not an event. Here today we are seeing another example of that process continuing.
As a frequent visitor to Scotland, I am heartened to see how the Scottish Parliament is beginning to forge its own character and its own culture in a way that is entirely distinct from Westminster. However, I appreciate the difficulties that it must have when it is faced with the maze of primary and subordinate legislation that already exists. I join in the expressions that have passed from other noble Lords in a desire for clarity. It would be helpful if the Minister could tell us whether there is any proposal to produce in a loose-leaf form the legislation as it has been amended which affects Scotland. It will take a great deal of time for these Acts of Parliament to be amended and published. Many other amendments will need to be made by further consequential orders. As each comes to this House for approval, so it would be helpful if there were some means of bringing it before the legislators who are carrying our their duties in Scotland.
On the Human Rights Act, it is entirely appropriate that if a breach of the convention is found in Scotland which affects legislation within the devolved competence of the Scottish Parliament, it should be for the Scottish Parliament to put it right. In answer to the noble Lord, Lord Mackay of Ardbrecknish, if legislation is to be passed by the Scottish Parliament, it will have to comply with the convention. Where a breach of the convention has been found, it will be interesting to see whether the Scottish Parliament will attempt to revert to the previous position, as the noble Lord suggested it might.
Baroness Ramsay of Cartvale: My Lords, I am grateful for the welcome that has been given to the order by all three noble Lords who have spoken. I shall try to deal with specific points that were raised.
The noble Baroness, Lady Carnegy, asked about the Explanatory Note and the noble Lord, Lord Mackay of Ardbrecknish, echoed her points. There is no reason why Explanatory Notes cannot be longer. The note is intended to be a short, concise statement of the substance and purport of the instrument and
The noble Baroness asked whether there will be a need for further similar orders. In a way, the noble Lord, Lord Mackay of Ardbrecknish, almost answered her question by saying that there is almost bound to be such a need. We do not anticipate any orders at the moment, although one can never say never. The wide implications of the devolution settlement mean that we cannot rule out the possibility of further orders. That is why Section 105 of the Scotland Act enables further modifications as the need arises. That is why that section was included in the Scotland Act. However, as I said in my opening remarks, the order is a culmination of a whole year of looking at various examples that came up where legislation was needed. We have now achieved a significant harvest of all the likely necessary actions.
The noble Baroness, Lady Carnegy, and the noble Lord, Lord Mackay of Ardbrecknish, asked about the Human Rights Act. The Scottish Parliament will be able to amend its own Acts to make them comply with the European Convention on Human Rights. The noble Lord, Lord Mackay, asked whether the Scottish Parliament could amend the Road Traffic Acts. The answer is no. The Scottish Parliament does not have devolved competence on the subject matter of the Road Traffic Acts. The noble Lord referred to a specific case. In lawyers' jargon it is known as Margaret Anderson Brown v. Stott (procurator fiscal). Petitions of appeal have now been lodged with the Judicial Committee of the Privy Council and the Advocate General has intervened to represent the United Kingdom interest. I am advised that further discussion of the case could be prejudicial to further legal proceedings. Therefore, I should not take the matter any further.
Baroness Carnegy of Lour: My Lords, the noble Baroness said that under the Human Rights Act the Scots Parliament will be able to amend its own Acts. I thought that that was the case all along--ever since we legislated two years ago. I wonder whether the Scots Parliament will now be able to amend Acts of the Westminster Parliament which apply to Scotland. That would mean that the provisions of Acts passed by the Scots Parliament would diverge from those which
Baroness Ramsay of Cartvale: My Lords, as I understand the position, the Scottish Parliament can only amend Acts of its own. It cannot amend Acts passed at Westminster. It is Westminster which will amend Westminster Acts. That is why we have Section 105. It is only with regard to devolved issues that the Scottish Parliament can amend legislation to make it fit the European Convention on Human Rights.
Baroness Carnegy of Lour: My Lords, I should like to pursue this point because we need to be clear. I have the Human Rights Act in my hand. I am trying to see what precisely paragraph 21 does. The noble Baroness referred to devolved matters, but a good deal of Westminster legislation applies to devolved matters which are now the responsibility of the Scots Parliament. Can those pieces of legislation be amended by the Scots Parliament? If not, I cannot see why this provision is there.
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