Climate Change Bill [HL]

We are in quite different territory here with the Bill; we are on to the devolution process and Orders in Council. I am already familiar with the procedure with such orders, having been the Northern Ireland Minister—an issue that Northern Irish Members of your Lordships’ House thoroughly objected to, as no detailed scrutiny is allowed. I will kick off by reminding the Committee again that this Bill is brought to it with the agreement of the devolved Administrations. I am not clear whether I am fully seized of the noble Duke’s actual concerns, which may give him a way out. However—to explain why this approach has been taken—the Bill reflects the Scottish devolution settlement, which we are not trying to unstitch here. When an emissions trading scheme is to be set up in Scotland only and the proposals would be within the, "““competence of the Scottish Parliament””," then the appropriate procedure will take place entirely before the Scottish Parliament. As I said at the end of the last debate, this is allowed for under the Scottish devolution settlement by way of an Act in the Scottish Parliament. This new power allows such a scheme to be made by the Scottish Ministers through secondary legislation. As noted elsewhere in the debate, we have agreed the relevant aspects of the Bill with each of the devolved Administrations and, like us, Scottish Ministers wish to ensure a facility to create, in a single instrument, trading schemes that operate across all territories of the UK or any combination of them. We in this House have adopted a convention that we do not seek to legislate in areas over which the devolved Parliaments have competence without the consent of those Parliaments. The Bill covers devolved elements, and therefore a legislative consent motion has been sought and obtained in the Scottish Parliament and the Northern Ireland Assembly. The Scottish Ministers’ policy is that the appropriate procedural mechanism to establish such a scheme which includes provision within the competence of the Scottish Parliament is an Order in Council made by Her Majesty. An Order in Council is the procedure required for various purposes under the Scotland Act 1998, and precedents for its use in relation to matters containing a mix of reserved and devolved matters in Scotland are set in the Health Act 1999 and the Energy Act 2004. I stress that the various devolution settlements are not the same as part of the process of devolution. Part 2 of Schedule 3 provides a different procedural mechanism to apply to trading schemes set up by the Secretary of State, Welsh Ministers and a Northern Ireland department or any combination of them to reflect the situation. The multi-legislature procedure that applies to these schemes is regularly used; for example, it is not uncommon for this House to scrutinise statutory instruments covering England and Wales made jointly by the Secretary of State and Welsh Ministers. The Scottish devolution settlement is different; there is a precedent in the Scotland Act for the Order in Council procedure in the Bill. If the proposers of the amendment simply wanted the same procedure to apply for Scotland as for Wales and Northern Ireland, they would simply need to add Scottish Ministers to paragraph 5 of Schedule 2. I do not think that is the issue, but I hope I have satisfied the noble Duke. In answer to the question about whether Her Majesty would turn down a request to revoke an Order in Council that had been annulled by a parliament, that is a matter of constitutional practice. In law Her Majesty can do what she likes, but conventionally she always follows advice from Parliament.