Devolution
The first item of business is a debate on the draft orders as detailed in motions S1M-28 and S1M-29 in the name of Mr Henry McLeish:
That the draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) Order 1999, which was laid before the Parliament on 26 May, be approved.
That the draft Scotland Act 1998 (Border Rivers) Order 1999, which was laid before the Parliament on 26 May, be approved.
The debate is scheduled to end at 4 pm and will be followed by a debate on motion S1M-19 in the name of Mr Ross Finnie on the Scottish adjacent waters boundaries, and the amendments thereto. That in turn will be followed at 5 pm by decision time, when questions on all three motions and the amendments will be put.
As in yesterday's debate, Mr McLeish will formally move only the first of the motions at this stage but will speak on both. I also invite other members to speak on either motion, or both. I will ask Mr McLeish formally to move his second motion before questions are put at decision time. At this stage I do not propose to set any time limit for members' speeches during the first debate. I may, however, review that position towards the end of the time allocated if a large number of members are still waiting to speak.
Before going into the details of the two orders, I will try to put them into context. The white paper "Scotland's Parliament" of 1997 recognised, in paragraph 2.10, that there would be areas where public bodies with a UK or GB remit operate in devolved areas. It will be for the Scottish Parliament to decide whether to put in place separate Scottish bodies, but we should recognise the advantages of current arrangements that allow sharing of knowledge and expertise and greater efficiency.
Section 88 of the Scotland Act provides mechanisms for cross-border public authorities to be specified. Some 65 such bodies have been identified. Section 88 provides for them. Scottish ministers will have the right to be consulted on membership and on other functions relating to such bodies, as the white paper set out. Section 88 also gives Parliament the chance to scrutinise reports of the bodies.
Section 89 provides opportunities for case-bycase examination of bodies and for transferring additional functions to the Scottish ministers, or otherwise adjusting the basic position provided by
section 88. That is what the present order does. It also offers an opportunity to move forward, with Westminster, to put in place suitable arrangements for cross-border public authorities that will give UK and Scottish ministers and the two Parliaments appropriate control.
I would like to commend—perhaps surprisingly—the guidance notes that have been published on two of the orders, which, unlike some guides that I have read, are reasonably straightforward and put into a wider context the orders that we are discussing. The guide on cross- border authorities identifies the 30 bodies in question and goes through the type of consultation and the type of decision making that will apply to each of them.
I will speak first to the draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) Order 1999. The purpose of this order is to put in place customised arrangements for the control and accountability of certain public authorities that have been specified as cross- border public authorities.
Section 88 of the Scotland Act 1998 has been used to designate a number of authorities as cross-border public authorities. They are bodies, Government departments, offices or office holders with mixed functions, in that some of their functions relate to devolved matters in Scotland and some do not. Examples include bodies such as the Forestry Commissioners, which deal with devolved matters in Scotland and England and Wales. Another example is the Scottish Committee of the Council on Tribunals which, although operating only in Scotland, deals with both reserved and devolved matters.
It is worth noting that the border to which I refer, in talking about cross-border public authorities, need not be the geographical border between Scotland and England. Rather, those bodies are partly within devolved Scotland and partly not. Because of that, certain of the general provisions of the Scotland Act 1998—in particular, the provisions on the transfer of ministerial functions— could cause problems when they are applied to such bodies. As I will explain, designation of such a body as a cross-border public authority, under section 88 of the Scotland Act 1998, is designed to address those problems.
The Scotland Act 1998 (Cross-Border Public Authorities) (Specification) Order 1999, which was made by Her Majesty in Council on 11 May, specifies 65 cross-border public authorities. Specification as a cross-border public authority applies what might be called the default provisions in section 88 of the Scotland Act 1998. That means—and I stress this—that the ordinary transfer of ministerial functions, under section 53 of the Scotland Act 1998, is disapplied to functions which are specifically exercisable in relation to the authority, such as powers to give directions specifically to that authority.
The Scottish ministers will not, therefore, automatically acquire such functions in connection with the authority. However, ministers of the Crown must, in such cases, consult Scottish ministers before exercising certain functions in relation to the body—in particular, powers of appointment or removal of members of the authority or functions which might affect Scotland otherwise than wholly in relation to reserved matters. Requirements for reports relating to the authority to be laid before Parliament are now extended so that the reports are also to be laid before the Scottish Parliament.
Section 89 of the Scotland Act 1998 goes further. It provides a wide-ranging power to make provision, by Order in Council, in relation to a cross-border public authority. The default provisions in section 88 can be adjusted by an order under section 89. The draft order that is before us today uses that power to supplement or replace the default provisions for 30 cross-border public authorities. The provision that is made for each authority is tailored to that authority, and it is not possible to describe those arrangements fully in general terms. However, the general theme of the order is to give the Scottish ministers and the Scottish Parliament greater control than is afforded by the default arrangements. That means, for example, providing for certain functions to be exercised by the Scottish ministers rather than by a minister of the Crown.
For the assistance of members, we have prepared a guide to the order, which sets out the background to each of the bodies that are dealt with in the order and explains the overall effect on them of the Scotland Act 1998 and the order. That was the guide to which I referred earlier. As I said, I think that in this constitutional context the guide is a reasonable read, which is quite surprising.
It may be helpful to members if I cite one example. One of the more important authorities that is dealt with in the order is the Forestry Commissioners. Forestry is a devolved matter. Decisions on forestry in Scotland will therefore be taken by the Scottish ministers and the Scottish Parliament. Nevertheless, in devolving forestry it would be a mistake to abandon structures that have served the forestry sector well for so many years. Allowing the Forestry Commission to continue to operate on a Great Britain-wide basis will ensure that Scotland, England and Wales can take advantage of access to shared knowledge and expertise, and will ensure greater efficiency in the use of resources. It is for those reasons that the Forestry Commissioners have been specified as a cross-border public authority. The devolution
of policy responsibility means that the powers of the forestry ministers over forestry in Scotland will transfer to the Scottish ministers. Responsibility for financing the commission's activities in Scotland will also be transferred.
The primary intention of the order is that the power of direction over the commission currently exercised by the Secretary of State for Scotland should transfer to the Scottish ministers in relation to the exercise by the commission of its functions as regards Scotland. The Scottish Parliament will also be responsible for funding forestry in Scotland. The order provides for the Scottish activities of the commission to be funded out of the Scottish consolidated fund and similarly for proceeds from the commission's activities in Scotland to be paid into the Scottish consolidated fund.
The order makes sensible provision to ensure that cross-border public authorities can continue to operate after 1 July with appropriate input and control for the Scottish ministers and for the Parliament.
I come now to the Scotland Act 1998 (Border Rivers) Order 1999.
The border between Scotland and England crosses the Tweed and Esk rivers. Unless otherwise addressed, that would have meant that legislative responsibility for fishery matters in those rivers would have been split between this Parliament and Westminster. Most members of this Parliament would agree that that would have been a ludicrous state of affairs. Fish are obviously no respecters of national borders and it would have been bizarre to contemplate the prospect, however remote, of conservation measures being taken on one side of the border and free exploitation on the other.
What section 111 of the Scotland Act 1998 therefore provides is the scope for whole-river management of the two rivers by this Parliament and by Westminster, acting by means of Orders in Council, of which this is the first.
In essence, the order before us does several things. First, it allows the continuation of the status quo in management terms. In other words, the Tweed throughout its length will continue to be regarded as essentially a Scottish river, managed by the River Tweed Council. For its part, the Esk will continue to be regarded, throughout its length, as an English river and, as such, it will be regulated by the Environment Agency.
Secondly, the order clarifies the powers of the Environment Agency in relation to the Esk, places an obligation on the Environment Agency to provide an annual report of its activities to this Parliament, and enhances enforcement powers.
Thirdly, the order seeks to address the age-old problem of fishery rights in the Solway where the Esk tends to meander, sometimes to the north of the border that runs down the middle and sometimes to the south. In brief, the order allows Scots netsmen to fish out to the middle of the Esk from the north side and English netsmen to fish out to the middle of the river from the south side, regardless of the position of the river at the time. The proviso, of course, is that the netsmen must be properly licensed or authorised to do so. That is obviously a matter of vital importance. None of this affects the exclusive right of the good people of Annan to fish within what is known as the Annan box, bestowed on them by royal charter in the 16th century.
All of this, I think, demonstrates our commitment to the principle of whole-river management for the two border rivers. At the same time, it offers proof, if proof was needed, of the democratic accountability of the process to those on either side of the border with fishery interests in the rivers. The key part of this order is to ensure that there is consistent management of both rivers, north and south of the lines that we have identified.
I commend these orders to the Parliament.
I move,
That the draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) Order 1999, which was laid before the Parliament on 26 May, be approved.
It would be helpful if members who want to participate in the debate could indicate their intention to speak by pressing the white button on their consoles.
I repeat what I said yesterday afternoon when I responded to Mr McLeish about these orders. The SNP gives a general welcome to the orders and to the fact that they move forward the transfer of powers to this Parliament and to the Scottish Executive.
I hope that that general welcome is accepted in the spirit in which it is given. One might call it the spirit of the new politics, although the fact that there is no common definition of the new politics seemed to affect yesterday's debate. Perhaps members could move towards making such a definition, rejecting Mr McAllion's definition of new politics as being about Opposition members simply keeping their mouths shut. The Opposition has a duty to welcome progress and to scrutinise in detail—
Will
Mr Russell give way?
Yes, I will.
Is Mr Russell prepared to define new politics as something other than mere abuse? It should involve listening to what people have to say in context. To be honest, new politics is not about people simply agreeing with one's views. It is about taking seriously what everybody has to say. That does not mean that debate cannot be robust. Mr McAllion's contribution was certainly robust, but it was also fair and hard- hitting. It is rather disappointing, therefore, that Mr Russell has taken only one phrase from it. That is not new politics; that is old abuse.
I will accept Johann Lamont's definition of the new politics as being where we have consensus and we work together. The basis of consensus is, of course, consultation. The issue that we were debating yesterday was that there was no consultation. I had the advantage of seeing Mr McAllion's performance from the front, whereas Ms Lamont had the disadvantage of seeing it from the back. It was not only the words, but the spirit of what he said that was the problem.
The general welcome that I give to the orders does not exclude detailed scrutiny of them. This order has notable omissions. I yield to no one in my enthusiasm and support for the controller of plant variety rights. I have no doubt—and I speak as someone who once worked for the Scottish Bedding Plants Association—that the work of the plant varieties and seeds tribunal is extremely important, but I would have thought that there were other bodies that required consideration because they work in reserved areas across both Parliaments and meet the definition given in the white paper of being bodies operating in reserved areas in relation to their activities in or affecting Scotland.
It is interesting to note that the white paper— published, it seems, so long ago now—listed a number of other bodies that have not made it into the order. Those bodies include the energy regulators; the Office of Passenger Rail Franchising; the Health and Safety Commission; the Commission for Racial Equality, which wanted to be considered in this way; the Employment Service; the Benefits Agency; the Post Office and broadcasting and telecommunications organisations such as the BBC and the Independent Television Commission.
For schedule 1 to the order to omit those bodies is to produce a piece of legislation that is seriously defective. Those bodies affect the everyday life of everyone in Scotland. All the people whom we represent are touched every day by the activities of those bodies.
The Parliament and its committees will have the opportunity to invite representations from all those bodies. The controller of plant varieties can come and talk to us, but it is a deficiency of the order that he cannot be required to come and give evidence and tell us the truth of what is happening. I am sure that an invitation from Mr Dewar or Mr McLeish or even Mr McConnell is not something to be treated lightly, but it would be much more important if the Parliament and its committees could say, "We require you to attend" and, "We require you to give information on what is happening."
I will confine my comments to broadcasting. It was clear from last year's debate on the Scottish Six that it would be vitally important for the Parliament to question those making the decisions. Some of the people in this chamber were present at the BBC governors' dinner, which was held in Glasgow at the end of the governors' meeting last year. That was a remarkable event. Those who were invited were soft-soaped with warm words by a hard-faced group of people who had already made up their minds about what was going to happen. No amount of debate or discussion would make any difference. What actually happened was that there was no real consultation. The Broadcasting Council for Scotland made its views known, and was ignored. The political parties in Scotland made their views known, and were ignored, as were the listeners and viewers organisations.
Virtually the whole of civic Scotland argued for some change in the way that the BBC treated Scotland. What they got was a typical BBC fudge—the offering of something that is referred to north and south of the border as "Newsnet". It is an appalling way to treat audiences in Scotland, because it removes that programme of great quality, "Newsnight". It denies part of that programme to the Scottish audience while substituting something else. That is an unacceptable compromise, and it is not I who says it, but the broadcasters who work on those programmes. The committee of this Parliament that is responsible for broadcasting should be able to call the chairman of BBC Scotland, or the director general of the BBC, or any of those responsible for similar decisions and to scrutinise the decisions as they are made.
The failure to give this Parliament the power to demand attendance is a major weakness of this order. That applies right across the spectrum. I am glad that many of the Liberal Democrats agree that the Parliament should have this basic right. It also applies to the ITC. Some members are concerned that the honouring of licences in certain places in Scotland has not come up to public expectation. In such circumstances it would be vital to demand the attendance of officials from the ITC to examine them on the issue. That is a major
defect in the order, and it applies not just to broadcasting, but to all the bodies that are mentioned in it. I hope that serious consideration will be given to strengthening the powers of the Parliament and the powers of the committee so that this Parliament can ask real questions.
The Scottish National party has considered the orders and, as yesterday, we will support them because we wish to move the process forward, and because it would be unreasonable not to do so. That does not mean that we do not regard parts of the orders as not effective enough. Mr McLeish is nodding his head. I hope that consideration will be given to some of these issues, both in terms of the bodies that touch our lives but which are not in the order and in terms of ensuring that this Parliament can be an effective voice for the people of Scotland. I hope that it will not be a Parliament that receives the odd annual report or letter from the director general, but one which can ask him what is going on, and ensure that he understands the strength of opinion and passion in Scotland for the Parliament to work.
The Conservatives go along, in the main, with Mr McLeish's comments, but—if the chamber will bear with me—I seek clarification on a number of the schedules.
Schedule 9 to the order on cross-border authorities refers to the Council on Tribunals. We very much welcome the passing of control of the tribunals to the Scottish Parliament, but we have some concerns about industrial tribunals in particular, especially given the weird and wonderful decisions that they have made recently. How much control will the Parliament have over the make-up of the chairmen's panels? Will changes be made in the methods of taking and recording evidence? We feel that that is necessary. If the statute gives us that right, we applaud it.
A number of questions arise from schedule 10, which concerns criminal injuries. Under paragraph 2 of part II, the adjudicator will be either the secretary of state or the Scottish ministers, but who will have the final say? Who is the authority? If there is a dispute, who will make the decisions? A similar problem arises with net expenditure, which can be determined by the Home Department. However, expenditure incurred in Scotland has to be reimbursed to the Secretary of State for Scotland. What does that mean in relation to the block grant? Is there a change of status?
On the National Criminal Intelligence Service, we are again concerned about financing. The order states that Scottish ministers may make payments on Scottish issues, but is there a choice? Once again, where does the money come from? Is this a change of status and will the order in effect lead to a reduction in the block grant? There is another aspect to that, because the involvement of the Scottish police service would benefit NCIS. We wonder whether there is some direct means of re-injecting cash back into the Scottish police force rather than paying the money to the Secretary of State for Scotland.
On schedule 21, we are aware that there will be much support for the retention of the UK-wide agreement on police pay scales, which is almost certainly necessary if we are to maintain harmony and co-operation among the police forces across the UK. The retention of the agreement would without doubt be welcomed by the Scottish Police Federation and the Association of Scottish Police Superintendents.
One or two queries come to mind with regard to cross-border policing and the powers of arrest of the English and the Scottish forces, particularly when a crime is committed in Scotland and Scottish policemen pursue the criminal. When they cut across the border, what powers will be left for the English police to apprehend the criminal and assist the Scottish police on what has become a cross-border matter? I believe that we have nothing to worry about, but I seek assurances because some concerns may arise about the matter.
It is all very well to talk about pay structures and pay negotiations for Scottish police officers, but recent statements in the press have given rise to concerns about the structures in which they serve. One of the Scottish nationalists recently referred to a reduction in the number of police forces. Currently, Scotland has eight police forces and the suggestion in the press was that the number would be reduced to three. My understanding is that the secretary of state suggested, about a year ago, that there would have to be a review of police structures. Since then, some negotiations have taken place with various interested parties and I understand that a steering committee has been established. I welcome that, but one year on from the secretary of state's statement, which referred to a comprehensive spending review that would examine only the costing of the police service, I ask the minister whether the way in which the police service carries out its duties is now being looked at. How many times has the steering committee met? Is it making positive progress?
I also seek guidance on schedule 6, which deals with the chief commissioner and other commissioners who are appointed for the purposes of part III of the Police Act 1997. I was not at Westminster then, but I believe that the act
covers England and Wales but not Scotland. I understand that part of the act may address intrusive surveillance. If it does, may I ask the minister whether individuals have been appointed as commissioners in Scotland and, if so, who they are? When were they appointed and, if they have taken up their duties, when did they do so?
Much of the advance publicity for today's debate was about the motion on the Scottish Adjacent Waters Boundaries Order and I understand the Scottish fishing community's concern and anger about the effects of that order. However, there is also understandable concern about the future of freshwater fishing in Scotland and I am particularly concerned about the effects of the Scotland Act 1998 (Border Rivers) Order 1999 on salmon and freshwater fisheries in Scotland.
A letter, sent to me by a former Lord Advocate, gives an excellent statement of the common-law position in Scotland on freshwater fishing. I will quote from that letter, because it is important that the statement is put on the Scottish Parliament's official record at an early date:
"The common law position in relation to both salmon and trout is that they are not the property of anyone until they are caught. Thus, brown trout in waters not protected by an order under the Freshwater and Salmon Fisheries (Scotland) Act 1976 do not belong to anyone whilst they are in the water but become the property of the fisherman or person who catches and lands them whether or not that person owns the fishing rights and whether or not permission has been given."
Since that letter was sent to me on 8 April 1981, it has been photocopied hundreds, possibly thousands, of times and has been used as an excellent defence by many Scottish anglers when they have been challenged by irate landowners, who try to chase them off the land and refuse them the right to fish the waters of Scotland. Lest anyone thinks that the letter was written by some left-wing, revolutionary lawyer, it should be noted that it was signed by James Mackay–Lord Mackay of Clashfern–who was a very distinguished Conservative Lord Advocate and, later, Lord Chancellor.
Lord Mackay gave the common-law position in that letter but, of course, in salmon fishing the common law has been overridden for many years in Scotland by statute law. It was not until the Freshwater and Salmon Fisheries (Scotland) Act 1976 was passed that it became a criminal offence to fish for brown trout in protected waters. Sadly, since 1976 there has been a succession of protection orders covering many of the rivers, burns and lochs of Scotland. Although the spirit, and the declared intention, of the act was that there should be more protection in return for access, sadly, that has not happened. Many anglers complain about a decrease in access as a result of the act.
I am reliably informed that the River Esk–which flows into the Solway firth and is covered by the Scotland Act 1998 (Border Rivers) Order 1999–is not governed by any protection order. That is true of both the Upper Esk and the Lower Esk. I also understand–this seems to have been confirmed by the minister's opening remarks–that since 1865 the River Esk has been run as if it were an English rather than a Scottish river, as it is in part. I am concerned because this statutory instrument gives new powers to the Environment Agency–that is the Environment Agency south of the border–to make byelaws on fishing in the Upper Esk. The order creates a new offence of unauthorised fishing in the Lower Esk, gives power to water bailiffs to enforce the new provisions and extends the existing powers of water bailiffs and other authorised persons to the whole of the River Esk– in both the Scottish and English parts of the river. The order also creates new offences that are applicable to the powers of water bailiffs.
Even before this statutory instrument came before us, concern was expressed in many parts of Scotland about the extension of criminal law to freshwater fishing. That concern is understandable if we bear in mind the fact that angling is probably the most popular participatory sport in Scotland. Most responsible anglers do not want a free-forall; they realise that there must be control. However, control of things such as access, pricing, stocking and the management of freshwater fisheries ought to be democratic.
I have said many times in the House of Commons that there should be a democratically constituted Scottish anglers trust to administer all freshwater fishing rights in Scotland. I hope to have an opportunity at a later date to speak about that in greater detail–possibly when legislation on it is introduced in this Parliament.
I am concerned about this order and I hope that the minister will allay some of my fears when he sums up. If he does not, I will be obliged to vote against it.
I broadly support the Scotland Act 1998 (Border Rivers) Order 1999, although I take on board some of Mr Canavan's concerns. I am sure that we will be able to address those issues, as they affect not only the Borders but freshwater fishing throughout Scotland.
I hope that today's debate will be less ill-natured than those of yesterday afternoon. We seem to have imported many of the bad habits of
Westminster: butting in, shouting, waving our hands in the air and bobbing up and down like a river full of demented corks. We all said that we wanted the Scottish Parliament to display a new style of politics, so it is up to us to make that happen. I do not feel that we achieved it yesterday.
I must confess that, at first, I misread the order and understood that it concerned the Border reivers, which might have been a little more colourful. However, the order is necessary because it outlines the joint responsibilities of UK and Scottish ministers and Parliaments in respect of rivers and estuaries that flow across the border between Scotland and England. It modifies the Environment Act 1995, which relates to the conservation, management and exploitation of salmon, trout, eels and freshwater fish. It requires agreement to be reached between Scottish and UK ministers and gives the Environment Agency new powers to make byelaws in connection with such matters.
As Mr Canavan said, the order creates a new offence of unauthorised fishing in the Lower Esk that can be enforced by water bailiffs. Angling is a popular sport but it does not need to be managed for the sake of fish stocks. The order does not take away current legal rights to fish for salmon—I am sure that my constituents in the burgh of Annan, who were granted that right by royal charter by James V on 1 March 1538 will welcome that. The order refers to the burghers of Annan—however, those who make the excellent decision to visit that lovely and historic area should be aware that Annan is actually better known for the fine quality of its fish and chips than for its burgers.
The order also clarifies the rights of Scottish fishermen to fish in any part of the Lower Esk that lies on or to the north of a line in the main channel of the River Esk that represents what is called the medium filum—which I presume is the mid-point— at low water. I am not sure whether that line in the middle of the Esk also defines the boundaries of my constituency. If it does, I will not take up any challenge from my colleagues to walk around the perimeter of my constituency.
I commend the order to my colleagues in the hope that, in progressing these orders, we can press on with more exciting matters that pertain to the needs, desires and aspirations of our constituents.
Does the minister agree that, given that the Environment Agency south of the border can prosecute but the Scottish Environment Protection Agency cannot, it would level the playing field and give equal environmental protection to both the Tweed and the Esk if SEPA were given the power to prosecute?
I am a Tweed commissioner and therefore must declare some form of interest, although my interest is non-pecuniary.
We remember Mr Canavan coming down to Kelso, in the Borders, with several of his pieces of paper. I recall him fishing opposite a noble residence, studiously ignored by everyone save a few distant onlookers.
Mr Canavan has some misconceptions about freshwater fishing. What he must understand about the order is that it allows the management of the whole Tweed river system, including those bits that are within England. However, a more important point is that more than 90 per cent of fishable water for brown trout on the Tweed system is open to anglers. They have to pay a modest fee and I will sell him a ticket any time that he wants.
How much?
I will give the prices for my local association: £5 for a day, £10 for a week and £20 for a season. All that money is reinvested into the river.
That is the point: the Tweed protection order, about which there was considerable debate recently, has enhanced fishing and allowed its management. Fishing is predominantly managed by local angling associations. While I share Mr Canavan's concerns about access to fishing, I believe that protection orders can, if they are properly managed, assist in developing fishing and in allowing as many people as possible to fish.
Like some of the previous speakers—and much to my surprise—I, too, am addressing the border rivers order. I had thought that the other order would have attracted a lot more attention.
The border rivers order seeks to give a sensible framework to the regulation of the two cross- border rivers on either side of our country—the Tweed and the Esk. It may not be the most exciting statutory instrument that I have ever read, but it is certainly redolent of history. We have heard both the minister and Dr Murray mention the fact that paragraph 6(6) refers to the charter granted by James V to the burghers of Annan. The order shows that two different and legally separate
jurisdictions can find an accommodation to deal with matters of common and mutual interest. That makes one wonder why some Conservative members believe that extending Scottish jurisdiction—which is what independence is, after all—would bring western civilisation as we know it to an end.
The order makes reference to other acts, which in turn refer to further acts, so reading it demands a great deal of attention. I would be glad if the minister would confirm one of my interpretations. He alluded to the duty of the Environment Agency to lay reports before the Scottish Parliament, but will he confirm that, under paragraph 4(2) of the order, the making of byelaws for the Upper Esk— which for the majority of its length, beginning not far north from Scotsdike, is an entirely Scottish river—cannot take place without the concurrence of a Scottish minister? The order does not make that clear.
I have one or two other questions of detail, which I am sure the minister will welcome. In the Lower Esk, the Environment Agency still has the power to grant licences to fish south of the medium filum. Medium filum means the middle; Brian Donohoe used it in a riveting adjournment debate in the House of Commons not long ago when he was talking about the fascinating subject of boundary walls. Can the minister confirm that the entire area north of the medium filum—that is, on the Scottish side—is allocated to existing legal rights to fish for salmon, and that there is no area north of the medium filum that is currently unallocated in respect of such rights?
Can he also explain for the benefit of the curious why, if I understand it correctly—the logic of this escapes me, but I am sure that there must be a good explanation—the only people who can fish for trout north of the medium filum on the Esk are those who have the right to fish for salmon? It seems to me that the two species could be separated.
Another subject that relates to the Esk, but is not directly dealt with in the order, is the shellfish fishery in the Solway. Recently, there has been a large increase in the number of people hand raking for mussels on the Solway. That practice attracts people from as far afield as Wales and Liverpool. There is some concern locally that the use of four-wheel drive vehicles is causing great damage to the foreshore and that the stocks of shellfish, particularly cockles, may be in jeopardy from that practice. Will the minister say whether he is considering a regulatory order for shellfish in the Solway?
Finally, will the minister be tackling the situation regarding migratory fish in the Solway by means of an order, as was suggested by the Environment Agency last year?
It is obviously sensible to have mutual arrangements for these rivers, which are very much a shared resource between the two nations of Scotland and England. We will not oppose this order, although we have some reservations about the fact that the vast length of the Esk will fall under the remit of the Environment Agency.
At this moment, no members have indicated their wish to speak. Do any members wish to contribute further to the debate? Donald Gorrie has just indicated his wish to speak.
I was busy doing my preparation at the 11th hour, which is, I am afraid, a bad habit of mine.
I wish to raise my concern—this probably reveals my ignorance—about the wording of the schedules to the order on cross-border authorities. I have found that four of the schedules refer to the secretary of state, and, although I am not entirely sure, I assume that the references are, in one case, to the Minister of Agriculture, Fisheries and Food and, in another, to the Home Secretary. The references are not clear in the schedules, although obviously they are clear in the acts that the orders will change. I suggest that, for the benefit of those of us who read documents at the 11th hour, the documents should make clear which secretary of state would be acting jointly with the Scottish ministers.
The Lord Chancellor creeps into schedule 9, but I am not sure why—although I have nothing against him. We should try to be as clear as possible on the already slightly wavy grey line— which is like the River Esk—between Scottish jurisdiction and Westminster jurisdiction. Where does the Lord Chancellor come in?
In schedule 20, which is about police information technology organisations, there is reference to a body that has three members, of whom
"(i) at least one shall be appointed by the Secretary of State; (ii) at least one shall be appointed by the Secretary of State after consultation with the Scottish Ministers; and (iii) at least one shall be appointed by the Scottish Ministers". As a proportional person, I should approve of that. The schedule is trying to be fair, but is it not a bit confusing?
Can we be as clear as possible in distinguishing between our remit and that of Westminster? Where documents refer to the secretary of state, can we be clear whether the reference is to the Secretary of State for Scotland, the Home Secretary or whoever?
As no other members have indicated that they wish to speak, I will ask Mr McLeish to wind up. Afterwards, I will entertain a motion for early closure of this debate, which will allow us to move on to the debate on the Scottish adjacent waters boundaries.
I was concerned, Mr Deputy Presiding Officer, that you would announce that I should rise and respond to this debate—alas, I will.
I will take Donald Gorrie's points first. Schedule 20 to the Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) Order 1999 is not confused, because the purpose of the order is to try to clarify whether it should be the UK or Scottish ministers who deal with particular appointments. I hope that he will accept that reassurance.
Schedule 9 to the order refers to the Lord Chancellor because he is the responsible member of the Westminster Government who deals with the matter concerned. It is nothing more sinister than that.
Donald Gorrie also asked to which secretary of state the schedules referred. I realised only about three years ago that, in any piece of Westminster legislation, there was seldom a specific reference to the Secretary of State for Defence, or to the Secretary of State for Scotland and so on. The only reference is to "secretary of state"—that is the terminology used. In this case, depending on what the schedule was, it would reflect the appropriate minister. The references are not to the Secretary of State for Scotland.
I have dispensed with the easier parts of my response. I will take Michael Russell's comments next, because, in a sense, if we were here to talk about a settlement for a separate, independent Scotland, there would be some validity to the points that he made, and I say that to the SNP in a constructive sense.
Michael Russell knows full well that in the "Scotland's Parliament" white paper—which was published in 1997 and which was the subject of a very successful referendum of the Scottish people—we were absolutely clear about cross- border public authorities and indeed about the bodies to which he referred, such as the energy regulators, the Office of Passenger Rail Franchising and the Health and Safety Commission. In the white paper, we said:
"In certain reserved areas, the activities of other UK/GB bodies which are accountable to the UK Parliament will continue to be significant in the economic or social life of Scotland, and therefore likely to be of interest to the Scottish Parliament."
However, those are reserved matters. I think that Michael Russell knows that there will be an opportunity for Scottish ministers to become involved in appointments to the bodies that we have just described and to other bodies. There will also be an opportunity for reports of those organisations to be lodged in this Parliament. We can make a distinction between a demand and an invitation, but I suspect that many of those bodies will accept an invitation from this Parliament to meet a committee or the Parliament.
One of the things that we tend to forget about devolution is that, whether the matter is reserved or devolved, this is a very powerful Parliament. The Parliament will be listened to if it discusses issues that touch on reserved matters. As for the specific bodies that Michael Russell mentioned, we have faithfully delivered on the white paper commitments. His comments would have been more valid if there had been another type of settlement, and I suggest that he knows full well the position regarding those bodies.
As for the Equal Opportunities Commission, the Independent Television Commission and the Radio Authority, the orders debated yesterday give Scottish ministers involvement in appointments to those bodies. Those bodies are of interest to Scotland, and the Parliament could consider issues that pertain to them, which backs up my point about the Parliament's involvement in wider issues.
The Equal Opportunities Commission, the ITC and the Radio Authority are not cross-border public authorities, but operate in reserved areas. I should stress that, as part of the devolution settlement, we have substantial devolved powers and substantial executive devolution, and the Parliament has a role in matters wholly reserved to Westminster. That role has been detailed not only in the white paper, but in every step along the way to the current situation of the Parliament.
The minister will remember that the Commission for Racial Equality wished to have its functions devolved, because it thought—rightly—that racial equality legislation might be stronger if dealt with by this Parliament rather than by the UK Parliament. That organisation was listed in the white paper in 1997, but has disappeared from the orders that we are debating. Will the minister refer in particular to the Commission for Racial Equality, because many people are interested in how this Parliament will relate to that organisation?
Alex Salmond makes a reasonable point, because what is important in the orders that I outlined yesterday and in today's orders is that this is an evolving process. He is right to say that there has been a debate on racial equality. It is a very important and sensitive issue,
and more debate will ensue. However, that matter is not covered in this order; but I should like to think that the Parliament would investigate it. That should be done with MPs at Westminster and with Westminster. However, I want to put it on record that racial equality is a very important issue, and I do not want to detract from Alex Salmond's constructive comments.
Michael Russell also made the point about how we define the new politics. Perhaps a common definition would be a constructive tone in the chamber; concentration on some of the big policy issues on which we campaigned in the election; and a mutual respect for comments made on every side of the chamber. If we achieve that in the first few weeks, people here and the wider public will respect that. That comment is aimed at everyone—I am not singling out any one party— but if we could meet that definition of the new politics, we would be paying tribute to the fact that we have a Parliament. The Scottish people would want us to act in such a way.
Phil Gallie identified a number of schedules. The schedules go into detail on how the responsibilities are split up and who takes decisions. He should read the schedules in detail, but if any of his specific concerns are still unanswered, he should not hesitate to ask me. I should be happy to fill him in on points that are germane to all of them.
Phil Gallie referred to the police. In a sense, none of the orders that we are discussing today affects the debate in Scotland about the future of the police forces. We have established a review to consider the police force structure, but no decisions have been made on that matter and there is no hidden agenda as to what the outcome might be. We are involving all the parties, and the guiding principle is that we are committed to the best policing. That will be the guiding criterion and not whether there are two, three, four, five, six, seven or eight forces. We gave a cast-iron reassurance that it will be a proper debate, and this Parliament, as well as the new Executive, can engage in it. I hope that Mr Gallie accepts that assurance, which is unaltered by anything that is being discussed today.
I accept the minister's assurance; we will watch what happens. I made several specific detailed points. I should be grateful if Mr McLeish could pick them up at a later date; perhaps he could drop me a note.
I will do that, but I will respond to some of the points now.
Mr Gallie raised a concern about intrusive surveillance. The specific point was whether we have commissioners. Under the Police Act 1997, the Prime Minister appointed a chief commissioner and a number of commissioners to oversee the authorisation process, to give prior approval in certain sensitive cases to investigate complaints and to consider appeals. Both the chief commissioner and the commissioners require to be serving—or former—High Court judges under the terms of the judicial appointments act. The commissioners for Scotland are Lord Davidson and Lord Bonomy. A central support office, the Office of Surveillance Commissioners, supports the commissioners. There are support offices in London, Northern Ireland and Scotland. The Scottish support office function is provided by the staff of the police division at the Scottish Office Home Department. If any further information is required, I will be happy to provide it.
Phil Gallie asked for reassurances about costs. I can assure him that the block will not be worse off as a consequence of anything that is happening here. This is about administration and structures. We have a devolution settlement and must define issues for the first time that we have not defined before, but I can reassure him that there is not a financial hit in relation to that.
I was going to say that I will deal with Dennis Canavan's points, but that might be ambitious as I know from experience at Westminster that Dennis Canavan has a great deal more knowledge of this subject than most. On the order affecting the Solway, I cannot promise a debate on the wider issues, because that is not a matter for me. To quote a Westminster phrase, I acknowledge the matter and will pass it to the appropriate minister—Mr John Home Robertson—who is also in the chamber today, so he will take cognisance of this debate.
Suffice it to say that under the section 111 order, the border remains the medium filum. However, the new offence is one of fishing without authority, wherever that fishing may have taken place. Scottish fishermen may fish from the north to the medium filum and English fishermen from the south, but now anyone fishing without authority—a legal right or written permission in Scotland, or a licence from the Environment Agency in England—is guilty of an offence and can be tried in court in Dumfries and Galloway, or in Cumbria. That in no way satisfies the other wider concerns raised by Dennis Canavan; I hope that they will be the subject of a more detailed response from the appropriate minister and department.
Robin Harper made a point about the EA and the Scottish Environment Protection Agency. The two organisations have different responsibilities. SEPA does not deal with fishing anywhere in Scotland. District salmon fisheries boards do that job.
I was grateful to my colleague Elaine Murray for her supportive comments; she represents one of the areas under discussion. We have tried to put
conservation and the environment at the top of the agenda for this order. I hope that we have succeeded.
Alasdair Morgan has a much greater knowledge of these matters than I do. I was deeply impressed—so much so that I do not think that I can respond to any of the particular points that were raised. I hope that that is a distinction for Alasdair.
We have heard detailed questions surrounding an issue that is important to the members who raised them. There were questions on wider issues, but some of the details are germane to the upper and lower parts of the River Esk. I promise to have the appropriate department provide detailed answers to the questions.
I should like to think that this has been a constructive debate, and I hope that it has been a model of how to debate serious issues and technical orders. I am given hope by the fact that—as Michael Russell said at the start of the debate—the SNP will not oppose, because that will take us forward to 1 July. Everyone in this chamber is looking forward to the time when we are not in transition, but are dealing with the big issues that affect Scottish people. I think that all of us are up for that.
I remind members that rule 8.14.2 allows any member, without notice, to move early closure of debate. Such a motion can be taken only with the agreement of the Presiding Officer. I am minded to entertain such a motion, so that we can move on to the debate on Scottish adjacent waters boundaries.
I move under rule 8.14,
That the debate be now closed.
Are we agreed?
Motion agreed to.