Scotland Bill

I also need to address some of the points regarding the amendments in my own name. I indicated that this was intended to help give effect to Scottish Parliament measures where perhaps only one small part of a Bill was in contention, rather than hold them up and frustrate them. If that were to happen and a whole Bill was referred because there was one clause in it over which there was some doubt and some cause for a Supreme Court determination, I rather think the Scottish Parliament might have a view to express at the point. The Bill being held up might contain other measures that it was agreed on all sides were very valuable; indeed, the measure under reference might be one where there was agreement about the policy intent but some doubt about whether it was within competency. The six amendments that the Government have put forward are intended to achieve a number of important changes as well as technical improvements. As I have set out, and my noble friend has made this point, we think that the law officer who is making the limited reference should be responsible for publishing notice of it, rather than the Presiding Officer. Amendment 12 implements recommendations made by the Subordinate Legislation Committee of the Scottish Parliament. We are taking on board what it said in its report on the delegated powers in the Bill in its 10th report of 2011, Session 3, where it stated that it, "““could envisage situations where the delay in commencement of the specified provisions would possibly require further provision to be made to enable the Act to function as the Parliament intended””." The new power in subsection (9) is added in response to those comments to give the Scottish Ministers the power to make appropriate consequential provision in that scenario. Amendment 12 deals with a point that the noble and learned Lord picked up: it modifies Section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 in its application to commencement orders made by the Scottish Ministers under new Section 33A(6). The effect is that those orders, which are to be subject to negative procedure in the Scottish Parliament, must be laid for a minimum period of 40 days rather than the standard 28-day period before they can come into force. It may be helpful if I also write to noble Lords about this; I spent many sessions trying to get my head around a lot of its implications. The measure is designed to eliminate the risk that the Scottish Parliament passes a negative resolution after provisions in a commencement order made under Section 33A(6) have come into force. In this scenario the resolution would have no effect, as the provisions commenced would by that time already have the force of law. By increasing the laying period to 40 days, if the Parliament passes a negative resolution within that period then, in terms of Section 28 of the 2010 Act as modified, the instrument is not to come into force after that resolution. Amendment 12 also allows the Supreme Court to provide that an order under new Section 33A(6) may be laid before the Scottish Parliament less than 40 days before it comes into force, in acknowledgement that there may be circumstances where it is desirable to bring provisions of an ASP that were subject to a limited reference into force more urgently. Amendment 13 amends Section 113 of the 1998 Act so that the useful supplementary order-making powers contained at subsections (2) to (6) and (11) of that section also apply to the powers of Scottish Ministers to make orders under Section 33A(6), (9) and (10). For example, that would allow a consequential order under new section 33A(10) also to make supplementary or incidental provision under the power at Section 113(4)(a). Amendment 14 is a technical amendment, which makes consequential orders made by Scottish Ministers under new Section 33A(9) and (10) subject to negative procedure in the Scottish Parliament—that is, a type J procedure if one looks at Schedule 7 to the 1998 Act. Amendment 15 is another technical amendment related to parliamentary procedure, which has the effect that where orders made by Scottish Ministers under new Section 33A(6), (9) or (10) add to, replace or omit any part of the text of an Act, they will be subject to affirmative procedure in the Scottish Parliament, rather than the negative procedure. Again, this amendment is tabled in response to a recommendation made by the Subordinate Legislation Committee of the Scottish Parliament. The noble and learned Lord asked some other questions and referred to the evidence given by the dean of the faculty, Richard Keen QC. He suggested that the clause should be amended so that the non-referred part needs further approval from the Scottish Parliament before commencement. We considered this but believe that to do so would introduce a further layer of complexity to an issue that would, anyway, be dealt with in very practical terms. Where the provisions of an Act of the Scottish Parliament are to be brought into force by Scottish Ministers by commencement order, they will clearly consider the intentions of Parliament in deciding whether it is appropriate to commence non-affected provisions while the reference is still ongoing. If a Bill contains provisions that are a clear set of checks and balances—a point made by the noble and learned Lord—the law officer making the reference can specify all those related provisions as being affected by the reference, and none will come into force until the Supreme Court has reached its decision. A limited reference will be made in relation to those provisions or parts of an ASP that are easily separable and unrelated to the rest of the ASP. However, if there are concerns over a short or single-purpose Bill, in which everything is interrelated, it would clearly be more appropriate to refer the whole Bill than to have a limited reference. There also appears to be a contradiction between what was recommended by the previous Scotland Bill Committee and the Subordinate Legislation Committee; they did not sit well together. It appeared illogical that the previous Scotland Bill Committee should recommend that unaffected provisions of the Bill be commenced by an order subject to affirmative procedure, while at the same time the Subordinate Legislation Committee recommended that affected provisions should be commenced following a favourable Supreme Court decision by an order subject to the negative procedure. It begged the question of why a commencement order for those parts unaffected by a reference should be subject to a higher standard of scrutiny than those that had been referred to the Supreme Court. As I said, I accept that this matter is complex. Perhaps I might write to the noble and learned Lord to set it out in more detail. I assure him that it has been gone into in considerable detail. He also asked about giving powers to the Supreme Court with regard to timing. The consideration there is that very often these might involve the rights of third parties or people who would be affected by the legislation. If legislation is to have an effect on people, they may not know the date on which a Supreme Court judgment will be made, so it is only fair that they should be given some notice. This at least allows that flexibility. As the noble and learned Lord will no doubt readily recognise, these matters would be the subject of representations made to the Supreme Court when parties were making their submissions. I hope the noble and learned Lord will understand the purpose of the amendment, which is intended not to frustrate but rather to facilitate a Bill that may have just one or two clauses that cause doubt. It would allow the rest of it then to proceed. Effort has been made to include the right checks and balances so that it can be done with the minimum of complication. Perhaps that does not flow from what has just been said but it is certainly the intent. I thank my noble friend Lord Selkirk for his amendment, the spirit of which—indeed, almost the text of which—has been picked up. In the light of the government amendments, I hope that he will withdraw his amendment.