Legislative and Regulatory Reform Bill
The next item of business is a debate on motion S2M-4887, in the name of George Lyon, on legislative consent to the Legislative and Regulatory Reform Bill, which is United Kingdom legislation. I will allow a slight pause for members who are leaving the chamber and remind them that decision time is in 10 minutes' time.
The Legislative and Regulatory Reform Bill was introduced in the House of Commons on 11 January 2006. As originally drafted, the bill mainly concerned matters that are outwith the Parliament's legislative competence. It dealt with regulatory reform orders and inspection and enforcement regimes that do not operate in devolved areas in Scotland.
The bill contains four provisions that are subject to the Scottish Parliament's consent by virtue of the Sewel convention, because they apply to Scotland for devolved purposes. Those clauses are in part 3 of the bill and will streamline how European Community law is implemented in domestic legislation, which will avoid possible delays in the transposition of our European Union obligations.
Members will know that cross-party concern was expressed that the reserved parts of the bill as first published arguably left open the possibility that the Scotland Act 1998 and the devolution settlement could be unpicked by regulatory reform orders. Since its publication, the UK bill has been extensively revised by the House of Commons and the Lords. Those changes and the amendment that was tabled on constitutional matters last Monday mean that, as no part of the 1998 act can be said not to be "of constitutional significance", we are confident that the powers could not in practice be used to amend that act.
As the European and External Relations Committee asked me to do at my appearance there on Tuesday, I have now written to the Cabinet Office, making clear our reasons for ensuring that the matter was put beyond doubt and asking that United Kingdom ministers confirm that position on the public record later this month.
I will take a minute to thank the committee for its patience. Members have been extremely understanding and have allowed us the time to pursue the genuine concerns that they raised at the initial evidence session way back in March 2006. I therefore ask members to follow the recommendation of the report of the European and External Relations Committee and support the motion in my name at decision time tonight.
I move,
That the Parliament agrees that the relevant provisions in the Legislative and Regulatory Reform Bill introduced in the House of Commons on 11 January 2006, that relate to the implementation of European Union obligations and which are within the legislative competence of the Scottish Parliament, or which confer executive powers on the Scottish Ministers, should be considered by the UK Parliament.
At the Parliamentary Bureau, the Scottish Green Party indicated that there must be a debate on the motion. The Westminster bill to which it refers is controversial—it is in flux—and the legislative consent motion raises important constitutional questions.
I welcome all the work done by the European and External Relations Committee. It secured important concessions from the ministers. However, despite this being Westminster legislation, we need to send a clear signal that the bill is fundamentally flawed. It grants far too many powers to ministers to amend, replace or repeal existing legislation. Although improvements have been made, those safeguards still contain far too many loopholes.
I welcome the fact that the minister indicated that an amendment has been tabled, and that he has written to the Cabinet Office. However, we are still being asked to grant legislative consent on the assumption that the House of Lords will accept that amendment on constitutional significance. We do not have a clear definition of constitutional significance and what it amounts to. When the Procedures Committee discussed legislative consent motions, there was strong evidence that we need two stages of consent. First, we would have to consent to the proposal for legislative action at Westminster, and secondly we would have to consent to the bill once all the amendments had been agreed.
This bill is still in flux and is opposed by many at Westminster, including Simon Hughes of Mr Lyon's party, who said that it is
"terrible, bad and wrong, and that it is anti-democratic legislation".—[Official Report, House of Commons, 21 March 2006; Vol 444, c 152.]
In this situation, I do not think that it is fair that the Parliament consents to a bill that is still in flux. Without the safeguards discussed by the Procedures Committee, we should not support the motion. I urge other parties to join us in abstaining.
Until about one minute ago, I thought I was off the speakers' list, but I am quite glad that I am not, because Mark Ballard totally misunderstands what is happening here.
Undoubtedly the bill was flawed. None of us on the European and External Relations Committee liked it at all, to put it mildly, and we were not alone in that. I am sure that the Executive would not have thought any differently. Academics wrote in to the newspapers and people said in the House of Lords that the power that Westminster was trying to take through the bill was ridiculous, and it was.
This is a good example of a committee doing its job. We spent a long time on the bill and put as much effort as we could into making sure that the safeguards were there, and they are. Mark Ballard is wrong to suggest that it is still the bill that it used to be, and not just because of the introduction of the phrase "constitutional significance". To be fair, no one in their right mind could argue that the Scotland Act 1998 is not an act of constitutional significance.
The amendments that were made to the bill earlier were more important. We do not have time to go into them now, but they defined very clearly the particular occasions when the power can be used, so it is no longer some open-ended—if I may mix it—carte blanche that is to be given to the Westminster Executive. The sort of thing that the bill might be used to amend in Scotland would be incidental; for example, a change could be made to legislation at Westminster that meant that Scottish legislation had to be renumbered. Such consequential amendment might require sections that were once sections 5, 6 and 7 to become 3, 4 and 5. It is not a fair point to say that the bill is still in a state of flux south of the border. Amendments tabled by the Government in the House of Lords answer almost all the questions that have been raised and change the bill in the way we want. I say bluntly that the committee would not have agreed to the bill if we had felt that there was still the danger to which Mark Ballard refers. I am satisfied that the bill no longer has those dangers and that we should be content to allow it to go ahead.
I thank Gordon Jackson for dealing with some of the more technical aspects of the Legislative and Regulatory Reform Bill and for his explanation in the European and External Relations Committee. The bill as previously drafted was dangerous and undemocratic. I still fail to understand how it ever managed to get to the stage that it did without considerable fuss from political commentators and places other than the Scottish Parliament. It beggars belief that civil servants thought that they could get away with it. I thank the committee for being instrumental in bringing about significant changes before the most recent change on "constitutional significance", to which Mark Ballard referred. Political commentators discussed that for a long time.
The amended bill came before the European and External Relations Committee on 26 September. The bill that the committee saw that day was much changed. I do not know whether Mark Ballard has had a chance to look at the words of the civil servant in the Official Report, who said:
"As the minister said, we take the clear view that anything that would amend the Scotland Act 1998 would be of constitutional significance and would therefore be ultra vires."
He also said:
"Protection is provided by what is now clause 9 of the Westminster bill, which makes it clear that, except for purposes ancillary to the reserved provisions of the bill, an order under part 1 of the bill cannot do anything that would be ‘within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament.'"—[Official Report, European and External Relations Committee, 26 September 2006; c 2075 and 2079.]
This is a significantly changed bill. It went through a robust process in the committee. I hope that what we have here today is not a frivolous attempt by the Greens to have a go at the Liberals. Goodness knows, it is easy enough to have a go at the minister's party. Let us get on with the real business of the Parliament.
When the Legislative and Regulatory Reform Bill came before the European and External Relations Committee a few months ago, the minister was under some pressure with respect to its contents. He was asked to deliver a bill that had been explained to the House of Commons in a way that left great dissatisfaction, particularly for the then member of Parliament for Eastwood.
The committee did a great service. I pay particular tribute to Jim Wallace and Gordon Jackson for their knowledge and experience in convincing the minister that there had to be change. If I have any problem with the bill, it is the fact that it will eventually allow for swifter transposition of European obligations, and Britain has a brilliant record of transposing European regulation very quickly. Nonetheless, the bill has been changed. I thank the minister for his efforts and once again I thank my colleagues on the European and External Relations Committee. The Conservatives will support the motion.
The Legislative and Regulatory Reform Bill that was originally presented to the House of Commons, and which the European and External Relations Committee considered back in March, certainly merited the description that my Westminster colleague Simon Hughes gave it, which Mark Ballard mentioned. When the minister came back before the committee, we were looking at an almost entirely different bill. There are key amendments, some of which Gordon Jackson referred to. First, the purposes of the bill, which will determine the use of the powers by ministers, are far more tightly defined. Secondly, one of the committee's concerns about the original bill was that when enacted it could be used to amend itself. That can no longer happen; there are proper safeguards and the bill can no longer be used to amend itself. Thirdly, as the minister said, the powers will not be able to be used to do anything that is of constitutional significance. The minister said that, in the Executive's view, that would cover the Scotland Act 1998 and I welcome the fact that he has written to Whitehall to ask that a similar reassurance be given by a UK minister.
We thought that the Scotland Act 1998 should perhaps be specified, but we were advised by officials that parts of our devolution settlement, such as the executive powers given to the Scottish ministers in respect of the railways, are not covered by the Scotland Act 1998 but are nevertheless of constitutional significance. Therefore the provision will be wider in scope than it would be if only the Scotland Act 1998 were specified.
I welcome the amendments that have been proposed to the bill and I support the legislative consent motion.
The difference between Mark Ballard and members of the European and External Relations Committee is that the committee members have compared the bill as it will be with the bill as it was in March 2006. The bill as amended will be unrecognisable from the earlier version; it will have been completely revised and amended.
No order will be able to be made under the legislation unless all six preconditions in clause 3 are satisfied. The most important of those is in the amendment that was tabled recently, which states that the provision must not be "of constitutional significance". The Executive is of the view that there is no part of the Scotland Act 1998 that can be said not to be of constitutional significance. It should also be remembered that five other preconditions would require to be met before the order was competent. For example, the provision must not remove any necessary protection or prevent any person from continuing to exercise any right of freedom that they might reasonably expect to continue to exercise.
Therefore, we cannot envisage circumstances in which an order that sought to amend the Scotland Act 1998 would meet all the preconditions. An order that failed to meet the preconditions would be incompetent. Amendment of the Scotland Act 1998 by an order would be a practical impossibility. I ask members to support the motion.