Orders of the Day — Scotland Bill

House of Commons, 16 November 1998.

PAYMENTS OUT OF THE FUND

Henry McLeish (Labour, Central Fife)

I beg to move, That this House agrees with the Lords in the said amendment.

Michael Martin (Deputy Speaker, Glasgow Springburn)

With this, it will be convenient to discuss Lords amendments Nos. 89 to 112, 180 to 183 and 291.

Henry McLeish (Labour, Central Fife)

The amendments deal with a range of matters concerning finance and the tax-varying power. The main areas covered are accounting arrangements for cross-border public authorities, the independence of the Auditor General for Scotland and financial arrangements for the Registers of Scotland. On the tax-varying powers, the group contains amendments that provide for the reimbursement of expenses involved in administration of the power and a revised definition of "Scottish taxpayer". The other amendments are technical. The technical amendments ensure that references in the Bill to "enactment" include the Scotland Act itself. Amendments Nos. 88, 89, 99 and 101 cover that point. Amendments Nos. 88, 89 and 99 make consequential amendments to clauses 62, 63 and 66. Amendment No. 186, in an earlier group, provides that references to "enactment" include future enactments and subordinate legislation. Amendment No. 111 therefore removes a redundant provision in clause 75. Amendment No. 103 is partly consequential on the revised definition of "enactment". With amendment No. 96, it restructures and simplifies definitions in clause 66 about "Scottish legislation" and "other legislation". Government amendments Nos. 90 to 93, 95 to 98, 100 to 102 and 104 are largely technical and designed to clarify the intention of the Bill. The main substantive point concerns cross-border public authorities, which may, by virtue of an order under clause 84, receive part of their income directly from the Scottish Consolidated Fund. In those cases, the Bill's current provisions could well mean dual accounting and dual auditing. It may be sensible for such bodies to provide only one account with, if necessary, an apportionment to Scotland as well, of course, as the other parts of United Kingdom, and for that account to be audited only once by, for example, the Comptroller and Auditor General. Such an arrangement may suit the needs of both this Parliament and the Scottish Parliament, and could be put into place under clause 84. The effect of amendments Nos. 96, 97 and 98 is to make it clear that such agreed arrangements in relation to a cross-border public authority are not duplicated or superseded by the provision that the Parliament is required to make under clause 66. The other amendments clarify the provisions on the Auditor General for Scotland and the competence of the Parliament to provide for the accountability of persons receiving sums derived from the Scottish Consolidated Fund, even where those sums are used for functions in relation to reserved matters.

Liam Fox (Conservative, Woodspring)

It seems a very long time since we started this Bill. We have finally got to the final day, and I imagine that a couple of bottles may be broken open this evening. I look forward to the Minister's invitation, given the extortionate salaries that exist under this Government. The Minister briefly alluded to amendments Nos. 90 and 93, which remove the term "independent" from auditors other than the Auditor General for Scotland who may be asked to examine expenditure made by the Scottish Executive or other public bodies in Scotland. Does that mean that an audit could be conducted in-house and so not independently of the Scottish Executive? I hate to bring a discordant note to the final day of the Bill, but the accounting methods of some Labour councils in Scotland have left much to be desired. We want an assurance that this is not simply a way of allowing previously independent procedures to be done in-house. Amendment No. 91 removes the words or by the Scottish Ministers", when defining the functions of the Auditor General for Scotland in respect of investigating the economy, efficiency and effectiveness of spending by others paid out of the Consolidated Fund. In other words, those who are paid directly from it can be audited, but those who are paid from it via a Scottish Minister need not be. Why is such a watering down of the comprehensive range of powers available to the auditor necessary? This is a change from what was originally in the Bill. We have a right to ask why it is needed. Will the Minister say more about amendments Nos. 106 to 108 on existing debt? Some parts of the Bill defy attempts to get to the bottom of the amendments. With the best will in the world, I require the Minister to make this clear so that we know what is intended. It is a particular joy at the end of the Bill to be able to welcome amendments tabled by the Government. Amendments Nos. 109 and 110 on tax-varying powers fall into that category. We are delighted that the Government have accepted that there was a serious anomaly in the practical implementation of those powers. We welcome the U-turn because we welcome sinners who repent at any time, even on the final day of an 18-month marathon. The amendments change the definition of what constitutes a day's residency in Scotland for tax purposes. In the original Bill, a person was deemed to be resident in Scotland for tax purposes if he was in Scotland at the beginning or end of the day. That would have resulted in an anomaly for someone who worked for a financial service company in Edinburgh and who lived there, but spent the week working in London, who got the plane to Heathrow on Monday morning, stayed in London during the week and flew back on Friday evening. Because he spent part of Monday and Friday in Scotland, he would have been deemed to have been in Scotland for four days of out of seven and so liable to pay tax. That was a ridiculous anomaly, and I am delighted that the Government decided to remove it. There are still anomalies in the tax definitions. Some of the most pertinent are in clause 71 and concern definitions of principal home, place of residence and main place of residence that have not been used before in United Kingdom tax legislation. What discussions has the Scottish Office had with the Treasury on those definitions? For example, an employee of a Scottish company who has a house in Edinburgh, but is seconded to London for a year where he stays in a rented flat would be considered a Scottish taxpayer because he has a principal home in Edinburgh even though he performs no employment duties in Scotland for an entire year. What constitutes a place under this legislation? That is not contained in UK tax law. Does it include hotel rooms, company flats, train compartments, the cabs of heavy goods vehicles or oil rigs? We would welcome clarification. I would like the Minister to clarify two other points. Under the national tax rules relating to UK residents, anyone resident in the United Kingdom for any part of the year is resident for the whole year and liable to UK tax on the full income, even if he leaves the UK to live abroad for part of the year. By concession, the tax yield is split and income arising after departure is not in practice subject to tax. It is not clear whether the split-year concession will apply to Scottish tax if a Scottish taxpayer moves to England part way through the year. The Minister mentioned cross-border authorities but on cross-border commuters, will a person who is resident in England who works in Scotland every day and returns home at night be not liable to Scottish tax because he will not have spent any days in Scotland according to the new definition? His work mates who live in Scotland will be liable. If English residents work night shifts, they will be liable to Scottish tax because technically they will be present in Scotland every day. How will those and other anomalies be ironed out? With some of the other problems that we mentioned earlier, they introduce unnecessarily discordant notes into an improved and rewritten part of the Bill.

Tam Dalyell (Labour, Linlithgow)

I know, as others do, that the Law Society has had discussions with the Scottish Office and its lawyers on the issue and range of definitions. May we have a brief assurance from my hon. Friend the Minister that the Law Society is reasonably satisfied—I cannot say completely satisfied because no one is ever completely satisfied on these matters—with the answers that have been given, or can we anticipate that there will be great difficulty in the courts when the matters come to be tested, as undoubtedly they will?

Henry McLeish (Labour, Central Fife)

Let me first deal with the point raised by my hon. Friend the Member for Linlithgow (Mr. Dalyell) about discussions with the Law Society of Scotland. The Law Society has been involved in every step of very productive discussions and is satisfied with the progress that is being made. However, as I shall explain to the hon. Member for Woodspring (Dr. Fox) in a moment, the discussions are on-going and the Law Society will continue to be involved. At present, the Law Society is satisfied and I can reassure my hon. Friend that any issues before the Confederation of British Industry, the Law Society and ourselves will continue to be discussed at every opportunity. I now return to some of the main concerns that have been raised this evening. Amendments Nos. 90, 91, 92 and 93 concern the Auditor General for Scotland. Let me briefly explain their implications. Amendments Nos. 90 and 91 are consequential to amendments Nos. 95 and 92 respectively. The amended subsection proposed in amendment No. 95 provides for the independence of persons appointed by the Auditor General for Scotland to undertake audits or value-for-money studies. Amendment No. 92 is technical. It clarifies that the Parliament is able to legislate for the accounting and auditing arrangements of bodies receiving money indirectly from the Scottish Consolidated Fund. Such bodies might include non-departmental public bodies funded by a grant from the Scottish Ministers. This makes the words or by the Scottish Ministers in clause 66(2)(d) unnecessary. The Parliament should be able to make accounting and auditing provisions even if the bodies' functions include reserved matters. That point is what the provision is intended to make clear. Clause 66 already makes it clear in relation to bodies such as the Scottish Ministers and the Lord Advocate, to whom sums are voted directly out of the Scottish Consolidated Fund, by requiring the Parliament to legislate for their accountability. Of course the Parliament can legislate to provide for the accountability of persons and bodies, whether or not they receive funds derived from the Scottish Consolidated Fund, where the funding of those persons and bodies is otherwise within the competence of the Parliament. Amendment No. 93 clarifies that the Auditor General for Scotland will be an individual, natural person and cannot be a corporate body or even a group of individuals. While on its own, the amendment might seem to remove the requirement for the Auditor General to be independent, this very important requirement is now catered for in the new subsection (6) proposed in amendment No. 95. That should give the hon. Gentleman the reassurance that he requires about the absolute independence of the Auditor General. Amendment No. 95 clarifies the independence of the Auditor General for Scotland and of persons appointed by him. The sole exception is that the new subsection (6A) of clause 66 would allow the Parliament to provide for the direction of the Auditor General in relation to the preparation of his own accounts. In other words, the Parliament could provide for the Auditor General's accounts to be prepared in a particular format and in a particular manner. In all other respects, the Auditor General will be free from the direction and control of any Member either of the Parliament or of the Executive, and any persons appointed by him—for example, firms of accountants—will be similarly free of such direction or control when they are undertaking audit or value studies of the Executive or its subsidiary bodies. The other points raised were in relation to amendments Nos. 105 to 108, which are also technical amendments. Their purpose is to allow provision to be made to ensure that the outstanding debt owed by the Registers of Scotland trading fund to the national loans fund is repaid after devolution when the Registers of Scotland becomes part of the Scottish Administration. For further clarification, the keeper of the Registers of Scotland is responsible for maintaining various registers, the main ones being the land register and register of sasines in which titles to land and other heritable property are registered. He exercises these functions through the Registers of Scotland Executive Agency which operates as a trading fund under the existing trading fund legislation. That legislation will cease to apply to the Registers of Scotland when it ceases to be a UK Government Department and becomes part of the Scottish Administration on devolution. This would leave the outstanding debt owed by the trading fund to the national loans fund somewhat in limbo. The amendments will enable the Secretary of State to order that the existing debt which is deemed to be owed by the trading fund to the national loans fund should be treated as an advance from the Secretary of State to the Scottish Ministers. The amount is just over £5 million. The Scottish Ministers will have to continue to repay the debt on the existing terms and conditions; and the Secretary of State will pay the proceeds into the national loans fund. That will ensure that the outstanding debt can continue to be repaid to the fund. I am sure that that very simple clarification will suffice to answer the hon. Member for Woodspring. Of course it will be for the Parliament to decide on the permanent financial regime for the Scottish Administration, including the Registers of Scotland, and the current review of the registers' operations will assist both them and the incoming Executive in doing so. In the transitional period, we want to ensure that the registers can continue to operate broadly as now. 5.45 pm I now turn to the questions that the hon. Member for Woodspring asked about tax. Again, he was largely complimentary that the Government had clarified an important matter that was raised in the House previously. I also refer to a point that was raised by my hon. Friend the Member for Linlithgow. There have been good discussions with representatives of the Law Society of Scotland, the Confederation of British Industry and the Institute of Chartered Accountants in Scotland. Following debate in Committee in another place, my noble Friend Lord Sewel, the Minister for Agriculture, gave undertakings to look again at the drafting of clause 71, and a useful meeting with the representatives of the three bodies concerned took place on 21 October. Proposals for basing the definition of a Scottish taxpayer on the concept of residence were discussed. While there were a number of differing views around the table, there was recognition that applying the concept of residence in this context could give rise to some very serious anomalies, which had been raised previously in the House. There was, however, also a general acceptance that most of the difficult cases that had been identified could be removed or substantially diminished if the Government were to amend the definition of a "day spent in Scotland", so as to remove the double counting which can arise under the current provision in clause 71(4)(a). That provision says that a day spent in Scotland means any day in which a person is in Scotland at the beginning or end of the day. It was pointed out that, for example, a lorry driver who spent 92 non-consecutive nights in Scotland in his cab could qualify as a Scottish taxpayer because of the double counting. I am pleased to say that the Government have listened to those concerns and amendments Nos. 109 and 110 address precisely this issue. They will ensure that if a person is in Scotland at midnight, he will only clock up one day spent in Scotland. Therefore, assuming that a person spends the entire year in the UK, he would have to spend 183 nights in Scotland before qualifying as a Scottish taxpayer. The three organisations involved were content with the amendments on the basis that they substantially address their concerns about clause 71 and I hope that the House will agree. In reply to the hon. Gentleman's final points, the Scottish Office is working very closely with the Inland Revenue and the Treasury on tax powers, which will continue until the infrastructure is in place. Any outstanding issues will not only be discussed by the Scottish Office, the Treasury and the Inland Revenue, but will involve the organisations referred to by the hon. Member for Woodspring and by my hon. Friend the Member for Linlithgow. I hope that I have adequately responded to the concerns that have been expressed.

Liam Fox (Conservative, Woodspring)

I am grateful to the Minister. On his final point, which is a matter of some concern, I raised three terms: principal home, place of residence and main place of residence. On-going discussions with the Treasury will have to be structured as any change in UK tax law in respect of those definitions will obviously have an impact on Scottish taxpayers for UK taxes. Is this one of the areas where the Government intend to have a concordat? Will there be a formal mechanism of discussion and if so when might we see it?

Henry McLeish (Labour, Central Fife)

The answer is, no, there will not be such a mechanism in respect of those issues. In the circumstances, I shall assure the hon. Gentleman first, that the discussions, both those between the Treasury, the Scottish Office and the Inland Revenue and those with the key organisations I have mentioned, are on-going; and, secondly, that I shall write to him and other Opposition leaders detailing the current state of play on the matters that have been raised. I am sure that the contents of that correspondence will reassure the House that everything possible is being done to ensure a smooth transition to the infrastructure required for the new tax-varying power.

Eleanor Laing (Conservative, Epping Forest)

May I ask the Minister for further clarification on a few points? Amendments Nos. 90 and 93 relate to the audit of expenditure by the Scottish Executive. I am sure that the Minister will agree that it is an extremely important point of principle that the Auditor General and anyone carrying out an audit should not only be independent, but be seen to be independent. In answer to my hon. Friend the Member for Woodspring (Dr. Fox), the Minister said that he considered that those matters were dealt with in amendment No. 95 and new subsection (6), but I do not think that they clarify the point. Therefore, I ask the Minister for an assurance that independence is assured for anyone who carries out an audit in those terms. On amendment No. 106 and the question of who pays for the general register of sasines and the land register, is the Minister saying that it will certainly be the Scottish taxpayer who pays directly, rather than the matter being paid for out of national taxation; or is the effect of his answer that they will still be paid for out of national taxation, but accounted for in a different way so that they appear to be taken account of in the Scottish block? On amendments Nos. 109 and 110, it is good to see that the Government have taken account of some of the points that Conservative Members have insisted are anomalous since the beginning of the Bill's passage. Many matters have caused us to be concerned that, subsequent to the enactment of the legislation, the Parliament would be unable to operate because of the in-built anomalies. I hope that the Minister will pay tribute to the work done in another place, where the anomalies have been smoothed out. Many times when we raised such anomalies in this place, the Government ignored us. I hope that the Minister will commend the work of the other place, which has been extremely valuable, although I do not expect him to go so far as to say that he hopes that the other place will continue in its present form. If the work had not been done in the other place, the Bill would not work.

Michael Martin (Deputy Speaker, Glasgow Springburn)

Order. I did not want to stop the hon. Lady while she was in full flow, but I should point out that we are discussing Lords amendments, not the Bill in its entirety.

Robert Syms (Conservative, Poole)

I intend to make only a brief speech, dealing mainly with amendments Nos. 109 and 110. I welcome the amendments, because they clarify points raised in earlier debates. I was interested in the Minister's comments about a person having to be in Scotland for 183 days at midnight before qualifying for taxation. How are tax inspectors to police that provision? In addition, Deloitte and Touche has raised a point about split-year concessions, which are possible under United Kingdom tax law. How would that be applied to Scotland? The clarification provided by amendments Nos. 109 and 110 is welcome because the Bill contained major problems. To re-emphasise what my hon. Friend the Member for Epping Forest (Mrs. Laing) said about audit, I am a little worried about the term "independent" being removed, because its presence would strengthen the power of an auditor. To remove it might well weaken the hand of the person doing the audit and strengthen that of the Executive. I am therefore a little wary of amendments Nos. 90 to 93, and I should like a little more reassurance from the Minister.

Henry McLeish (Labour, Central Fife)

On the last point, the hon. Gentleman has my total reassurance. As the note in my hand says—it is more generous than the official advice—the removal of the word "independent" is an illusion. Amendment No. 95 covers it entirely. The members of the consultative steering group have been determined to build on the auditing procedures used in this House. Hon. Members will find that a combination of the legislation, which is tough, and the work of the steering group, which is putting flesh on the bones, satisfies them that the issues are being taken seriously. Independence means independence. I hope that that also covers the first point raised by the hon. Member for Epping Forest (Mrs. Laing). The amendments are technical, but the main principle behind them is not a technicality—independence must be guaranteed. The adjustment in respect of the register is, in a sense, a technical one in terms of debt and the loan fund. The important point is that fees pay for the whole amount, so it does not fall as a burden either on the taxpayers of England, Wales and Northern Ireland, or on those of Scotland. That should clarify the hon. Lady's point. The other issues raised relate to amendments Nos. 109 and 110. The amendments have clarified and helped to resolve a problem that was troubling many hon. Members, which is why the Government took it seriously. On the other hand, many of the comments made about taxation have been unnecessary—to describe them as distorted or exaggerated would be going too far. They have been taken care of in the discussions with the Inland Revenue, the Treasury and the expert organisations to which I referred. We do not foresee any problems arising, because we have a great body of UK tax legislation and the experts are working with the Scottish Office to ensure a smooth transition from the current position to the implementation of the tax-varying power, if the Parliament decides to use it after the elections on 6 May.

CROSS-BORDER PUBLIC AUTHORITIES: INITIAL STATUS

Henry McLeish (Labour, Central Fife)

I beg to move, That this House agrees with the Lords in the said amendment.

Michael Martin (Deputy Speaker, Glasgow Springburn)

With this, it will be convenient to discuss Lords amendments Nos. 114 to 118.

Henry McLeish (Labour, Central Fife)

This is a group of technical amendments, which is designed to ensure that clauses 83 to 85 make appropriate provision for cross-border public authorities—that is, those authorities whose functions cross the reserved-devolved divide and which are designated by an Order in Council under clause 83. The most important amendments are Nos. 114 and 118, which make it clear that the clause 84 power can modify the application of clauses 83(1) and 52(4), and amendment No. 116, which makes it clear that an order under clause 84 can confer new functions. The other amendments clarify the wording of the clauses or are consequential to other amendments.

Oliver Letwin (Conservative, West Dorset)

I do not want to detain the House unduly, but I draw the Minister's attention to amendment No. 113, which he barely mentioned, because it gives rise to an interesting question. I have laboured manfully to understand the import of the amendment and consulted noble Lords who were active in the discussions in another place. 6 pm First, how does the Minister interpret the difference in clause 83, to which amendment No. 113 refers, between a function which is specifically exercisable in relation to a cross-border public authority and a cross-border authority's function? That seems to be the distinction on which amendment No. 113 is relying when it excludes proposed sections 107 and 108 from the second part of clause 83, which relates to the function of such an authority as opposed to the specific exercise of a function in relation to a cross-border public authority. I ask because it is not certain that a court would be clear about the difference. It would be extremely helpful if the Minister could clarify that point. Secondly, will the Minister cast more light on the connection between the amendments and the draft Cross-Border Public Authorities (Specification) Order, which was introduced in another place? In particular, will he clarify whether all the bodies specified in the order are cross-border in the normal use of that term? If so, how could they have functions to which clauses 107 and 108 ought not to apply, which would be the effect of amendment No. 113? My final question relates to earlier questions about audit. Who will be responsible for the audit of those authorities and how will that relate to the effect of amendment No. 113, which removes under clause 83 the application of clause 107 to those bodies, given that clause 107 deals specifically with whether moneys paid to those authorities will come out of the Scottish Consolidated Fund?

Henry McLeish (Labour, Central Fife)

I should, perhaps, have dealt with those issues before, but, in the interests of brevity, I did not. I shall do so now. Government amendment No. 113 is a consequential amendment. It removes a reference to proposed sections 107 and 108 in clause 83, which is made redundant by amendment No. 180 to clause 107. Government amendments Nos. 114 and 118 make it clear that a clause 84 order can modify the application of clauses 83(1) and 52(4) in relation to any cross-border public authority. The bodies in the order referred to by the hon. Member for West Dorset (Mr. Letwin) are cross-border public authorities. That means, for example, that an Order in Council under clause 84 could apply clause 49 in relation to certain ministerial functions in relation to the authority so that those functions would transfer to Scottish Ministers. Government amendment No. 115 simply makes it clear that an order made under clause 84 may make provision in respect of any particular function of an authority. At present, it could be read as enabling provision to be made only in respect of all the functions of an authority. That would be too restrictive. It is a technical amendment. Government amendment No. 116 introduces a new paragraph in clause 84(2) to make it clear that an order under it can confer new functions. That might be used, for example, to give the Scottish Ministers a new function of determining the form of accounts of a cross-border public authority. Government amendment No. 117 is a drafting amendment that simply deletes the redundant words "if any" from clause 84(2)(c). That subsection would then simply provide that an order under clause 84 would be able to modify the constitution of a cross-border public authority. One cannot amend the constitution of an authority that does not have one. A draft of the order that would be made under clause 83 was placed in the Library on 29 July. Examples of bodies include the Forestry Commission, the Meat and Livestock Commission, the British Waterways Board and the Intervention Board for Agricultural Produce. It will be useful if I also put on record an explanation of the context of clause 83. The policy is that it should be for the Scottish Parliament to decide whether cross-border public authorities should continue to operate after devolution as they do at present. The Government envisage, however, that the Scottish Parliament will, generally speaking, wish existing arrangements to continue to operate to take advantage of sharing knowledge and expertise, and of the greater efficiency in the use of resources. The provisions of clauses 83 to 85 give effect to that policy. Public bodies, Government Departments, office-holders or offices that meet the criteria set out in clause 83(6) may be specified as cross-border public authorities under an Order in Council made under that subsection. If an authority is so specified, certain provisions of the Bill are disapplied in respect of functions of, and functions specifically exercisable in relation to, the authority in question. The amendments, which are genuinely technical, seek only to improve the Bill passed in the other place and are certainly worthy of support. The auditing of cross-border public authorities was dealt with in the previous group of amendments. We seek to provide that only one auditing authority need be involved, even though there is a cross-border public body that straddles the reserve devolved function. The reference to auditing and the control of expenditure is clear, but to try to minimise the amount of auditing, it is better that one Parliament takes responsibility for that, rather than having dual auditing.

Tam Dalyell (Labour, Linlithgow)

I am not trying to be difficult, but those could be complex matters. Is there to be a lead authority, depending on which had or was thought to have the greater share of the business?

Henry McLeish (Labour, Central Fife)

Essentially, the order provides for cross-border public authorities to be established. That is important. These are matters for which the Scottish Parliament could in future decide to have its own body, rather than be part of a UK set-up. In the interim, we are trying, first, to avoid dual auditing, which makes sense. Secondly, it could fall to the National Audit Office to perform the task, according to discussions that will take place. Determining the auditing authority will be a matter of common sense. When we refer to cross-border public authorities, we are referring to the relationship between the United Kingdom and Scotland, but that also takes cognisance of the fact that Northern Ireland and Wales are part of the set-up. The Bill tries to clarify that, so that when we set up bodies, regardless of whether Scotland decides to set up its own bodies, we have a working system that eases the transition to a new system that will work efficiently.

Liam Fox (Conservative, Woodspring)

What the Minister is saying about avoiding dual auditing is self-evidently sensible. Will there be a voluntary code of practice? Will he write to us and tell us what consultation the Government have had with what are envisaged to be cross-border bodies and what representations have been made? We might then at least have an idea of the opinions of those groups. Although the amendments are technical, it would be helpful for us to know for future reference what is the Government's thinking on the numbers of groups involved and the balance of opinion on the question of audit.

Henry McLeish (Labour, Central Fife)

That is also a fair question. There have been extensive discussions with all the organisations because it is important that we get it right. When clause 84 orders are made in relation to specific bodies, specific auditing requirements will be defined. As to specific orders under clause 84, we want to ensure that each body is taken care of and has its proper procedures established so that there is no confusion as to who is taking the lead role in any particular aspect of a body's work.

Oliver Letwin (Conservative, West Dorset)

The Minister described the amendment as "technical", and I accept that. However, I am not sure that his answer was technical—if it was, it was so technical that I did not understand it. I press him once more on this point for the sake of clarity. Under amendment No. 113, the application of proposed sections 107 and 108 is disapplied when dealing with a function which is specifically exercisable in relation to a cross-border public authority". However, proposed sections 107 and 108 are also disapplied when we are dealing not with that but with any function of such an authority". I do not understand—and I do not see how a judge will understand—the difference between those two phrases. Could the Minister provide a concrete example of that difference?

Henry McLeish (Labour, Central Fife)

I can describe Government amendment No. 113, which is straightforward, but technical. It deletes the reference in clause 83 to the disapplication of clauses 107 and 108 in respect of the functions of cross-border public authorities. The amendment is purely consequential on amendment No. 180, which was debated in the previous group. Amendment No. 180 amends clause 107 to make it clear that the functions of cross-border public authorities are not Scottish functions for the purposes of that clause and clause 108. Therefore, there is no need to continue to disapply clauses 107 and 108 in relation to the functions of cross-border public authorities.

New clause

Henry McLeish (Labour, Central Fife)

I beg to move, That this House agrees with the Lords in the said amendment.

Michael Martin (Deputy Speaker, Glasgow Springburn)

With this, it will be convenient to take Lords amendments Nos. 133, 134, 136 to 138, 279 to 285, 299 and 300.

Henry McLeish (Labour, Central Fife)

Amendment No. 132 deals with the compatibility of the Scotland Bill and the Human Rights Act 1998; amendments Nos. 133 and 134 deal with the legislative power to remedy ultra vires acts; amendments Nos. 136 to 138 would ensure that the appropriate law officer is informed if a court intends to exercise its powers to vary retrospective decisions; amendments Nos. 279 to 283 refer to the definition of devolution issues; amendments Nos. 284 and 285 relate to a number of court procedural issues, including the requirement that intimation be given to the Advocate General and the Lord Advocate if a devolution issue arises in any proceedings; and amendments Nos. 299 and 300 refer to an amendment to the Criminal Procedure (Scotland) Act 1995 to take account of devolution issues. That group of amendments basically comprises technical ones to clauses 92 and 93 and schedule 6 to ensure that the arrangements for judicial scrutiny are appropriate and work properly. I should remind the House about the systems put in place by the Bill for dealing with legal questions about the extent of the Parliament's powers. The Bill creates a carefully thought through process for settling questions about the boundaries of the devolution settlement. What we propose will ensure that any legal disputes about those boundaries can be resolved consistently and authoritatively. Schedule 6, in particular, sets out the definition of "devolution issues" and the process for resolving any legal questions that arise about them. The arrangements will provide a solid foundation for developing a common understanding of the detailed extent of the powers of the Parliament and the Scottish Executive as time passes. They form a key part of our proposals.

Oliver Letwin (Conservative, West Dorset)

I draw the Minister's attention to amendment No. 132, which again deals with the question of judges and litigation. My suspicions were aroused slightly when the Minister described it as a technical amendment. The Opposition strongly welcome what we understand to be the purport of amendment No. 132—I hope that the Minister will confirm whether we are correct. Namely, the amendment would prohibit class actions on behalf of people who are vaguely affected by some act—I am comforted to see the Minister nodding—when it could be argued loosely that they were affected by a convention right under clause 28. If that is the amendment's intention, we strongly welcome it. I should add in passing that the noble Lord Mackay of Drumadoon first pointed that out in another place, and we all owe him a debt. Can the Minister clarify his interpretation of the critical term "victim" as it applies in this case? How does he expect that that will relate to a convention right not to be covered under clause 28, given amendment No. 132? Can he also enlighten us about how he envisages individuals pursuing those matters in the courts? Does he expect that it will be possible, nevertheless, to bring an action against Parliament or will it inevitably be against the Executive? If it is against Parliament, does anything in any of the amendments create a constitutional precedent that could have implications for this place?

John Hayes (Conservative, South Holland and The Deepings)

Like my hon. Friend the Member for West Dorset (Mr. Letwin), I am prepared to accept the Minister's description of "technical" amendments. However, when he refers to a "technical explanation" of amendments, one might—with the greatest respect to the Minister—read "convoluted". It might be useful to have some practical examples of the effects of amendment No. 132 and the previous group of amendments. They appear to bring the Bill into line with the Human Rights Act 1998, but it would be useful to have some tangible examples of the difference that they will make, and a fuller explanation thereof. I accept that the amendments are technical and I have no wish to delay the House unnecessarily, but we need an explanation, by way of example, of the difference that the amendments will make.

Dominic Grieve (Conservative, Beaconsfield)

I do not think that amendment No. 132 is a technical amendment. I believe that it is a fairly important amendment—although I suspect not a controversial one. It seeks to bring the scope of the Bill into line with the Human Rights Act 1998, but I ask the Minister to clarify why this change has been inserted into the legislation at a late stage when we debated the matter at considerable length when it was first brought before the House. It was made quite clear then that there would be the right of challenge under the scope of the human rights convention and the Bill as then drafted. That does not appear to me to be a technical matter. The amendment introduces a considerable change—albeit a change that is in line with the House's intentions when the matter was first brought before us. I seek clarification on that point because it is important that the two pieces of legislation should match up correctly.

Eleanor Laing (Conservative, Epping Forest)

I agree with my hon. Friend the Member for Beaconsfield (Mr. Grieve) that this is a late stage for the Government to introduce an amendment that the Minister describes as a "key part" of their proposals. If they are so important, why have we not examined those matters before? They refer to the way in which the proceedings of the Scottish Parliament coincide with or work alongside the proceedings of not only this Parliament but other quasi-judicial and quasi-parliamentary bodies—of which there seems to be an increasing number—to which we are affiliated or connected in some way. The amendment relates to important parts of the Human Rights Act 1998, which we scrutinised and considered in this place for many hours. I do not believe that I am being unduly critical by asking the Minister to explain why, if the amendments are a key part of the Government's proposals, they are being proposed now. It is also a matter of concern that the amendments are described as technical ones. Given that the amendments cover page after page, and if they are technical, is the Minister admitting that many of the points that Conservative Members raised when the clauses were debated in Committee had been overlooked at the time and have had to be considered since?

Michael Martin (Deputy Speaker, Glasgow Springburn)

We cannot go into the history of the Bill. The motion before us asks whether we agree with the Lords in their amendment. It is a question of agreeing or disagreeing, not wondering why we got here.

Eleanor Laing (Conservative, Epping Forest)

I was seeking to clarify some points about the amendments so that I could consider whether we should agree or disagree with the Lords amendments. Thank you for your advice, Mr. Deputy Speaker.

John Hayes (Conservative, South Holland and The Deepings)

It would help those with less acute minds than your own, Mr. Deputy Speaker, if the Minister would clarify the point by citing an example. We accept that the amendments are technical, but we should be grateful if the Minister illustrated that by citing an example. My hon. Friend the Member for West Dorset asked for examples when we debated the previous group of amendments; he did not get them. By providing practical examples, perhaps the Minister will satisfy those of us who have reservations about the interface between the two pieces of legislation.

Eleanor Laing (Conservative, Epping Forest)

I thank my hon. Friend for reminding me of that point, which I should have made. I am sure that the Minister took the note of my hon. Friend's observation. Once again, I seek clarification to enable us to consider whether the clauses have been properly scrutinised by the House before we can decide whether to agree or disagree with the Lords amendment.

Henry McLeish (Labour, Central Fife)

Setting aside the bit of melodrama at the end of the hon. Lady's speech, I point out that our aim is consistency. The matter is technical. The amendments have been debated; they make sense, and we ask the House to support them. Technically, the Scottish Parliament will be a public authority under the Human Rights Act 1998, but in most cases we would expect the Executive to be the subject of any actions on that. Government amendment No. 132 ensures that the Scotland Bill and the Human Rights Act 1998 are consistent in terms of title and interest and the award of damages. Only those with title and interest—that is, Law Officers or anyone who would be a victim in terms of section 7(6) of the Human Rights Act 1998—could bring proceedings about the alleged contravention of the convention rights, about whether an action is incompatible with those convention rights. It is intended to restrict the members of the public who can mount a challenge involving such questions to those who can bring proceedings against the public authority under section 7(7) of the Human Rights Act 1998. That ensures consistency between the Scotland Bill and the Human Rights Act 1998 about who can bring proceedings. Scots law would probably already have the effect that only such victims would have had title and interest. We are making a straightforward attempt to achieve consistency. Hon. Members asked for examples. I should like to respond fully and give some illustrations, but the key points are that the amendment is technical, that it makes sense, and that there should be no suspicion that the matter has not been properly considered. The amendment will improve the Bill; that is the purpose of all the amendments that we are discussing tonight.

POWER TO MAKE PROVISION CONSEQUENTIAL ON ACTS OF THE SCOTTISH PARLIAMENT.

Henry McLeish (Labour, Central Fife)

I beg to move, That this House agrees with the Lords in the said amendment.

Michael Martin (Deputy Speaker, Glasgow Springburn)

With this, it will be convenient to discuss Lords amendments Nos. 140 to 146, 152, 157, 158, 160 to 169, 174 to 179, 184 and 286, Lords amendment No. 286, and amendment (a) thereto.

Henry McLeish (Labour, Central Fife)

I am reluctant to say that the amendments are technical, but we do have a technical amendment to Lords amendment No. 286. This large group of amendments deals with various powers under the Bill to make subordinate legislation. Among our aims is to clarify the scope of the power to split ministerial functions under clause 97. We also aim to split quantitative obligations under clause 97. The amendments provide that, where the power in clause 97 is used to split a European Community or international obligation which is expressed in quantitative terms so that part of it can be transferred to Scottish Ministers, the order will not be made unless they have been consulted. The amendments in the group also ensure that the Secretary of State' s powers of intervention in clause 54 can be used to ensure that the Scottish Ministers' share of a quantitative obligation is met. The general provisions about subordinate legislation have been redrafted to make them easier to use and to take on board recommendations of the Delegated Powers Scrutiny Committee in another place that subordinate legislation under the Bill which amends primary legislation should be subject to affirmative resolution procedure. The amendments also deal with the transfer of property to Scottish Ministers, the Lord Advocate and the Scottish parliamentary corporate body. Finally, the amendments deal with the making of provision consequential on Acts of the Scottish Parliament.

Liam Fox (Conservative, Woodspring)

The Minister will be pleased to hear that I accept that most of the amendments in the group are purely technical. However, I shall probe him on one or two areas—not least on Lords amendment No. 146, which is fairly substantial. My questions mainly concern the quantitative relationship. We could all think of many areas where such a relationship might apply. In such areas, the working relationship between the Westminster Government and the Scottish Parliament—the Scottish Executive—will be extraordinarily important. By what mechanism will consultation take place? Given that international obligations are involved, and given that quantitative distribution is involved—say environmental examples, such as on carbon dioxide emissions, where Scotland would be expected to play its part in fulfilling Britain's international obligations—how will the process work in practice? Is this to be among the areas where there will be a concordat? Will the matter be set down on paper? Shall we know in advance how it will work? Or will it simply be left to good will? The Minister says that no Westminster Government would give a quantitative responsibility on an international obligation to the Scottish Parliament without consultation. I believe that it is legitimate to ask what that consultation will consist of. Will it be a full written and clearly delineated consultation exercise, according to a procedure about which we shall know in advance? Or will there simply be a telephone call to say, "By the way, we have agreed that that is what it's going to be; now you have been consulted. That's it. Thank you very much"? There is a world of different between those two extremes.

Thomas McAvoy (Labour/Co-operative, Glasgow Rutherglen)

How could you suggest such a thing?

Liam Fox (Conservative, Woodspring)

When the hon. Gentleman has spent as long in government as the Conservatives did, he will know how such a situation can come about—although I hope, for the benefit of the rest of us, that he does not gain that experience. What will the proposals mean? They make a difference. Earlier in the Bill's passage we said that, where there is potential for conflict between Westminster and the Scottish Parliament, we must consider what would happen in a worst-case scenario. I am not being flippant. A conflict might arise if the form of the consultation process had not been set out far enough in advance and we did not know the mechanisms according to which it would occur. All I want is for the Minister to tell us the Government's thinking. The Secretary of State said that we must consider the worst-case scenario—that is what I am asking the Minister to do. What would happen if a Westminster Government were putting on to a Scottish Parliament what the Scottish Parliament thought was a disproportionate element of a quantitative international obligation? There does not seem to be a mechanism for resolving disputes. Subsection (4) of amendment No. 146 contains the words Scottish Ministers have been consulted", but we know no more about that. The Minister should tell us what that means. 6.30 pm Amendments Nos. 160 to 169 represent a substantial rewriting of the Bill. We would argue that as a result of work done in another place, there has been a significant improvement in the Bill, compared with the original drafting that came to this House. However, as there has been such substantial rewriting and so many new points have been added, one wonders why that was not in the original Bill presented to the House. Furthermore, given that substantial rewriting was required for a Bill that received an enormous amount of drafting time, and given that it was done in the Chamber to which those on the Government Front Bench are instinctively hostile, does not that reinforce the case for a revising Chamber? If ever there was such a case, it is made by these 10 amendments. The Government considered that there were so many flaws in the structure of their flagship legislation that they had to go back to the drawing board and draft it again. It is surely legitimate for us to ask what would happen if this were a piece of Scottish Parliament legislation and there were no revising Chamber. What would the Government do then? In the new, improved form of this section of the Bill, hon. Members on both sides of the House have much to be grateful to the other place for. Without that revising Chamber, what would we have done?

Tam Dalyell (Labour, Linlithgow)

I realise that we are short of time, but my curiosity overcomes me. Do hon. Members on the Conservative Front Bench want a revising Chamber?

Liam Fox (Conservative, Woodspring)

In all the previous stages of the Bill we have recognised that the lack of any revision mechanism would be a serious deficit in the procedures of the Scottish Parliament. The hon. Gentleman will know that in the other place we tabled amendments to try to introduce time lags in the Bill as a substitute for a separate revising Chamber, so that those who had doubts about the contents of and procedures in a Bill would have time to make representations. That, of course, has disappeared. The Minister speaks of the improved drafting of the Bill and the amendments that the Government tabled. The Government could not have done that under the procedures in their own Bill. The irony is not lost on us. Let us hope that the deficiencies do not cause poor legislation to be introduced in the Scottish Parliament.

Desmond Swayne (Conservative, New Forest West)

I agree with my hon. Friend about the desirability of the revising Chamber and the way in which that is highlighted by the amendment. No doubt the Minister would reply that the deficiency is made up for by extensive reliance on pre-legislative scrutiny, but that depends heavily on the public and on public and professional bodies doing their work. That is a largely uncharted course and unproven—but I digress. My question is simple, and it arises from reading the Bill with an untrained mind—certainly not a legal mind. Is it the purpose of the amendment to bring about a formal consultation of Scottish Ministers in matters where the United Kingdom Government will deal with our international obligations?

John Hayes (Conservative, South Holland and The Deepings)

Will my hon. Friend add to that the implications of the amendment for the relationship between Scottish Ministers and the new constitutional arrangements? We spend a great deal of time speaking about the relationship between this place and the new Parliament, but I am interested in what my hon. Friend and the Minister believe the amendment suggests for the relationship between Scottish Ministers and the new Parliament. Does the amendment affect other aspects of the Bill; and can that be explained during this evening's proceedings?

Desmond Swayne (Conservative, New Forest West)

My hon. Friend anticipates me. I intended to ask the Minister for his views. It is inevitable and desirable that the Scottish Executive should be consulted and its views sought and understood. However, this House will rightly continue to contain a large number of Scottish Members of Parliament, who remain in this place to scrutinise Government activities in those spheres. To what extent does consulting the Scottish Executive have implications for their role in this House?

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I refer to amendment No. 286, which inserts a new schedule in the Bill and sets out certain types of procedure for subordinate legislation. That is a welcome step forward for clarification, but on even a brief reading we find that if paragraph 3 applies, instead of Type F procedure, Type A procedure shall apply, and so on. For further Bills, would flow charts meet statutory requirements? I welcome the efforts that have been made to simplify the legislation, but flow charts might be the ultimate in simplification.

Henry McLeish (Labour, Central Fife)

They might lead me to understand the measure more than I do, which could be a hindrance in some circumstances. I shall deal first with amendment No. 146, then with subordinate legislation and the new schedule in amendment No. 286. Amendment No. 146 amends clause 97 in two ways. First, in the new subsections (4) and (5), it provides that, where the clause 97 power is used to split a European Community or international obligation that is expressed in quantitative terms so that part of it can be transferred to Scottish Office Ministers, the order will not be made unless they have been consulted. That is important. Secondly, new subsection (6) will ensure that the Secretary of State's powers of intervention under clause 54 can be used to ensure that the Scottish Ministers' share of a quantitative international obligation is met. Examples of international obligations and obligations under European Community law that will fall within the scope of these amendments are likely to include EC quotas for livestock subsidies, and the United Kingdom's obligations under the Kyoto protocol on climate change and related Community law to achieve certain targets for the reduction of greenhouse gas emissions. All parts of the UK will be required to meet a fair proportion of such obligations, not least to ensure that unfair burdens are not placed upon business in one area compared to another. Where it is possible for the Scottish Ministers to contribute to the achievement of the obligation through the exercise of their powers, it is obviously right that they should be apportioned a share of the obligation. An order under clause 97 will enable that to be done. The order will be made by a Minister of the United Kingdom Government or by Her Majesty in Council on the advice of such a Minister, and will be subject to procedure at Westminster only. The amendment sets out the procedure to be pursued. Consultation will be required, but it would be impossible to define at this stage what that will mean. A framework will be defined for such consultation. The final order will be processed in this House.

Liam Fox (Conservative, Woodspring)

I am less reassured than I was at the beginning. This is an area where there could be litigation over devolution. We need certain information in this debate, not least the minimum definition of consultation that satisfies the legality of the Bill. The Minister says that there will be some form of consultation, but what will that mean? When the matter goes to court, as it surely will, what is the Government's legal advice on what constitutes minimum acceptable consultation under the terms of this part of the Bill?

Henry McLeish (Labour, Central Fife)

It is absurd to suggest that we can clarify and define that this evening. The changes that we are suggesting should be set against a background of important European and international obligations. It makes sense that a process should be established that will deal with quantitative obligations. That is the first major point. Obviously the Government will continue to work within the context of the Scotland Act, which I hope the measure will become after this week, and that of the Scottish Office. Our purpose will be to work out specifically what will be involved in consultation. I do not think that it would be appropriate this evening to try to speculate on what, in the Opposition's eyes, inadequacy would be.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate that what consultation may or may not be is a difficult thing to define. However, it would be helpful if the Minister spelt out the reality of who calls the shots. United Kingdom Ministers will decide, after having consulted, how the quotas will be allocated, and that is the end of the matter. I am sure that he will confirm that to the House.

Henry McLeish (Labour, Central Fife)

First, we accept that there is a serious attempt by the Westminster Parliament to discuss obligations with the Holyrood Parliament. However, we have discussed before European Community and international obligations and the need for the Holyrood Parliament to be consistent in its application of these obligations. We are talking about a further situation where we have not qualitative but quantitative considerations. It seems elementary and straightforward that if there is a process of consultation to be defined, it will clearly flow, as a framework, from the amendment that we shall agree this evening and from the Bill when it is enacted and becomes law.

Oliver Letwin (Conservative, West Dorset)

I must ask the Minister to answer the question that my hon. Friend the Member for Beaconsfield (Mr. Grieve) put in an earlier intervention. Would United Kingdom Ministers, following consultation, lay down what the quotas are to be, and that would be the end of the matter?

Henry McLeish (Labour, Central Fife)

That is not what we have said. As for international obligations, Scotland will be able to go much further on the basis of the devolution settlement than Scottish Office Ministers can now. We are saying that we must take international obligations very seriously. Scotland is obliged to implement these obligations. That is not to say that Scotland will want to do something else. First, we are talking of obligations that have been placed on the United Kingdom, so there must be a process to deal with them. That is elementary. Secondly, if that process is to work, there must be a basis upon which we consult. That is put into the Bill by the technical amendment that we are considering. If a debating point is being made, it will not wash. We know that international obligations are vital and we are ensuring that when we consider quotas, in respect of the environment or anything else, there will be proper discussions between the two Executives in proceeding to implement international obligations. I think that it is very straightforward.

Tam Dalyell (Labour, Linlithgow)

I hardly expect Ministers to endorse the perspicacity of its choice of individual to do it, but the fact is that Heriot-Watt decided, wisely or unwisely, to ask me to give the Lothian lecture on Friday on the subject of devolution, science and technology and the environment. The Government Whip gives a wry smile but that is the position that I am in. I am asking for some guidance. Am I wrong in thinking that at the end of the day these delicate questions of quotas—not only fish but carbon dioxide emissions—depend on what the Government must call good sense and good will, and that there is no legal framework on which to allocate responsibilities? We must all hope that the good will is to be found. Is there anything other than good will for deciding these matters?

Henry McLeish (Labour, Central Fife)

That is just not true. The 190 hours that we have spent dealing with the Bill have been about creating a legal framework that will enable us to debate and discuss issues and process and implement decisions that are applicable both to Westminster, if that be necessary, and Holyrood. I can reassure my hon. Friend. I shall write to him with the full back-up of the framework with which we are dealing. It is right to say—I shall make what I hope is the final point—that written into the Bill is consultation in respect of European and international obligations. From that will flow the framework that will make that consultation work.

Liam Fox (Conservative, Woodspring)

I am grateful to the Minister for giving way once again. We agree that there must be a mechanism for dealing with quotas. We also agree that there has to be consultation. However, in the event of disagreement, who makes the final decision about the allocation of quotas within the United Kingdom? On whom will that legal responsibility and power actually fall?

Henry McLeish (Labour, Central Fife)

To repeat a point made earlier, I said that such matters would be dealt with in this House after due consultation. The fact that is missing from Opposition arguments is that we need to have a fixed and agreed position on international and European Community obligations. That means, rightly so, the necessity for dialogue and consultation. Is it too radical to suggest that the Opposition might see that as sensible and straightforward? I repeat again that a framework is outlined in the Bill that will take us forward on these issues. There is nothing terribly surprising before us. However, the Opposition always want to try to recreate a bit of interest about matters that have been discussed during various stages in the other place and in this place. There is nothing dramatic before us this evening. We simply have a consultation process built into an existing clause.

Dominic Grieve (Conservative, Beaconsfield)

Just when one felt that the debate on the Bill was coming gently to its end, it is interesting how matters are reawakened and we return to the central principles and the difficulties in the operation of this proposed legislation. The Minister says that we are failing to understand the spirit behind the proposed legislation but I understand that spirit very well. I understand also its limitations. It is—[Interruption.] Does the Minister want me to give way to him?

Henry McLeish (Labour, Central Fife)

No, I am just breathing.

Dominic Grieve (Conservative, Beaconsfield)

If we consider the way in which the proposed legislation will operate in practice, it will be a fertile area for dispute. What is said to be consultation is all part of the happy-clappy inclusiveness which the Government serve up to us. Everybody can be happy, clappy and inclusive as long as everyone agrees with the decision that the Government will make. I fail to see how the consultation process, as it is added in by the amendment, will serve any purpose if it is spelt out statutorily if, ultimately, Ministers in Whitehall will have to take the final decision—under considerable pressure, one may suspect, from the electorate south of the border as much as that north of the border. The debate has served to bring that out. I am worried not that the Minister has presented the amendment and asked us to approve it but by the slightly mealy-mouthed way in which he tries to avoid spelling out the truth behind the amendment. All these things get dressed up. Instead of telling the House, "This is the position, there is a consultation mechanism but at the end of the day Whitehall Ministers will have to decide how allocations are implemented fairly on a United Kingdom basis", the process is dressed up. At the end of the day it is suggested that by the mechanism that has been put before us those north of the border will have an input on a statutory basis into the way in which the formulae are arrived at. That is not correct.

John Hayes (Conservative, South Holland and The Deepings)

I am hesitant to interrupt my hon. Friend's Anglo-Catholic sermon. Perhaps the Minister can deal with the issue best by adopting the course that we have asked him to follow when discussing previous groups of amendments and using illustrations. We look for some tangible and practical illustrations of how the process would work in practice. In my judgment it is all very well to talk about technical amendments but unless we translate them into practicalities, it is rather hard for us to make judgments about them.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to my hon. Friend. I am not sure about the Anglo-Catholicism of my speech—it may be Anglo-Scottish for all I know. As I have often said to the Minister, I hope that the legislation works. However, it is incumbent on the Opposition to point out areas in which it may prove to be deficient.

Robert Syms (Conservative, Poole)

The Minister alluded to the proposed subsection (5) under amendment No. 146, which says: defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise)". That leaves a lot of room for misunderstanding. Will this matter be set out in a concordat between the Scottish Executive and the Government so that people know the ground rules in respect of areas of policy, or will it be an ad hoc arrangement—

Henry McLeish (Labour, Central Fife)

indicated dissent.

Robert Syms (Conservative, Poole)

The Minister shakes his head. That is very important because there might be differences over consultation, not only over what people should be consulted about but over what weight should be given to respective consultations. The Bill seems to be moving towards some kind of formula whereby people would know where they stand on these issues. I welcome that because it diminishes the potential for disputes. It would be extremely helpful if the Minister would reassure us that that matter will be negotiated between the Scottish Assembly and the Government.

Henry McLeish (Labour, Central Fife)

I can give the hon. Member for Poole (Mr. Syms) total reassurance on an extremely well made point.

REGULATION OF TWEED AND ESK FISHERIES

Michael Martin (Deputy Speaker, Glasgow Springburn)

With this, it will be convenient to discuss Lords amendments Nos. 154 to 156, 192, 195 and 209.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

I shall deal first with amendments Nos. 153 to 156, which cover ground that was debated hastily, under urgent timetable pressure, earlier in the proceedings. We now have from the Lords a much expanded definition compared with the original. However, it is quite complex and I hope that the Minister will explain it a little further. The essential principle that concerns my constituents and me is that what happens in England should not be decided merely by the Scottish Parliament without reference to my constituents' representations, which will be made through this House. [Interruption.] Those who suggest that adjusting the boundary could solve the problem had better have another look at the atlas, because it would be a fairly substantial boundary adjustment. If the Scottish Parliament decided to allow Sunday fishing on the River Till—a considerable distance south of the border—which would add to pressure on river stocks, current UK legislation would preclude it. However, if the Scottish Parliament became enthusiastic for such a change, or for such a change on the entire Tweed river system, my constituents would have a legitimate interest in resisting that change. One could imagine other changes, especially as the clause includes environmental aspects that could be significant. If legislation passed in the Scottish Parliament required the removal of various kinds of cauld that exist on the river system now, landowners would be involved in significant expense. We therefore need to be clear that there would then be an effective process of representation through this Parliament, and that any orders made would have regard to that. What will be the position on commencement day? Will we have to wait some time for an order under clause 100? If so, what will be the position in the mean time? Will the legislation be accompanied by an immediate order under clause 100, or will there be a significant period in which all those matters will be dealt with by Westminster? I do not understand what happens in that interim period. I should be grateful for the Minister's reassurance on both those points, which affect the property and livelihood of a number of my constituents. Amendments Nos. 192, 195 and 209 define the "Scottish zone" and an order will subsequently amplify the definition. Will that be done immediately, or will we wait for a long time before we have a definition? What happens if we wait for a long time? Will the order introduced under clause 112(2), to which amendment No. 195 refers, create a new definition of the "Scottish zone" and the boundary between Scotland and England out to sea? That is an intriguing prospect, as nobody has produced a satisfactory definition thus far and there are sharp differences of view as to where that boundary should lie. Of more immediate significance to my constituents are the references to Scottish fishing boats because many boats fishing from ports in my constituency are registered in Scotland. The effect of these amendments appears to be that the fishing activities of a Scottish-registered boat fishing in the English zone would be regulated by the Scottish Parliament.

Henry McLeish (Labour, Central Fife)

indicated assent.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

The Minister agrees that that is the correct interpretation. It is easy to understand the logic that, if a vessel is registered in Scotland and its owner fishes in Scottish waters, he has accepted obligations to Scotland which make it appropriate that he should be regulated by Scotland. It is slightly more questionable when, for historical or other reasons, a vessel is registered in Scotland and its owner fishes off Seahouses or Amble and is nevertheless regulated wholly by the Scottish Parliament. Has the Minister thought about that; and will he clarify the position?

Liam Fox (Conservative, Woodspring)

The question of the River Esk was raised in the other place on several occasions. Will the Minister give us some quick clarifications? As the House knows, the management of the River Esk and the right to its source has been claimed by the North West Water authority, the National Rivers Authority, and now the Environment Agency. When it comes to the question of management, exactly how will joint authorities work together, and what will their relative responsibilities be? If the Minister cannot answer now, I should be grateful if he wrote to me explaining exactly how that will be worked out. I hope that the details of this specific example, as opposed to the generic one that we discussed under the previous group of amendments, have been sorted out because it is a very practical issue that has caused many problems. May I make a plea for anglers? What is the current position in the Bill regarding rod licensing? That matter was raised in the other place and we did not quite get an answer then. It may be appropriate to finish discussion of this group of amendments and the Bill by asking about a fixed boundary in the Solway Firth. Given that the centre of the channel moves, how will that come about? Are we to attempt to restrict and fix in legislation something that is wholly flexible and movable in nature? Let us hope that our attempt to do that is better than our attempts in some other parts of the Bill.

Andrew Welsh (Scottish National Party, Angus)

I do not want to oppose the amendments, but I should like to congratulate the Minister on his efficient and, as ever, competent dispatch of business. It is appropriate that consideration of the Bill is ending with amendments relating to the River Sark and the River Tweed. This whole saga started in 1974—that long saga is coming to an end as far as the House is concerned, but for Scotland a new story is beginning.

Henry McLeish (Labour, Central Fife)

I shall be brief, and I think that I can satisfy all the points that hon. Members have raised. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) referred to the Tweed and the Esk. Clearly, these will be matters for both Parliaments, so I cannot predict when decisions will be made. There will be no change to the status quo in the interim, and it will be up to the Parliament, along with Westminster, to define its priorities and what changes will be put in place. In providing for fisheries to be devolved, the Government have always recognised that special arrangements would be required in respect of the two border river systems which straddle the boundary between England and Scotland. It is universally accepted that fisheries management needs to be approached on a whole-river basis. In doing so, however, anyone responsible for fisheries management for a river system which lies in England and Scotland would have to operate under the law of both England and Scotland. It is necessary, therefore, that the laws for regulating fisheries should be same on both sides of the border. Our task in respect of the Bill, therefore, is to enable both Parliaments to approve such laws, but in a way that ensures that they both approve the same laws. The Government amendments to clause 100 are intended to allow much the same approach to be taken for the two border rivers between Scotland and England. In effect, we are providing for the legal framework for each of those rivers to be established by Orders in Council—which would be prepared by the Fisheries Departments in both countries in co-operation—and for such Orders in Council to be capable of addressing the wide range of tasks involved in fisheries management. Such Orders in Council should also be flexible enough to offer a wide range of legal mechanisms for fisheries management, much as would be open for each Parliament if it were acting independently. We have to get it right on both sides of the river, and we have established in the Bill a framework for making sure that that is the case. On sea fisheries, Government amendments Nos. 29, 192, 195, 209 and 252 relate to the devolution of functions in respect of the regulation of sea fishing. In the White Paper "Scotland's Parliament", the Government made clear their intention to devolve functions relating to sea fisheries, subject to suitable co-ordination arrangements to ensure effective discharge of United Kingdom obligations. The devolution of functions exercised at sea has raised for the Bill particular questions which have required careful thought, and the amendments are the product of that further thought. They are intended to ensure effective devolution. As hon Members will understand, the exercise of ministerial and other functions in relation to the regulation of sea fishing will often mean that functions are being exercised outside Scotland. I should remind the House that, for the purposes of the Bill, Scotland includes the 12-mile territorial seas around Scotland, as provided in clause 112. When such regulatory functions are exercised outside Scotland, there will need to be clear connections to Scotland to justify action being taken by the Scottish Ministers, and for Scottish courts to recognise jurisdiction in trying offences under Scots law. At sea, however, it is possible to envisage various possible connections to Scotland that might be thought to satisfy the condition "as regards Scotland". I am conscious that the requirement to implement devolution for sea fisheries has raised a number of problems for legal advisers and, indeed, for United Kingdom Fisheries Ministers, who remain determined to ensure that United Kingdom obligations to manage fisheries under the common fisheries policy are implemented effectively. Scottish Ministers will be responsible for managing fisheries within the Scottish zone, and for managing Scottish boats. Ministry of Agriculture Ministers will be responsible for managing fisheries within the waters adjacent to England and for managing English boats. The responsibilities of the Welsh and Northern Ireland Ministers and Assemblies will be a matter for their own legislation. That overlapping set of responsibilities, which arise because of the need to regulate in respect of sea area and fishing boats which may operate in various areas, opens up a possibility that United Kingdom fishing boats may have to operate under the authority of separate licences issued by the fisheries administration. That is not on the horizon at present. The question of the zone is being considered and discussed, and that consideration will be published when that point is reached. Again, decisions on that will be taken by the new Parliament.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

Do I understand the Minister to have expressed concern at the confusion that could arise if two boats fishing in the same part of English waters happened to be registered one in Scotland and one in England—even though they were both operating out of the same English port—and that the discussions have some time to go to find a satisfactory resolution?

Henry McLeish (Labour, Central Fife)

I can confirm that that is the case. This is an area of regulation that we want to get right, and it will be dealt with. I hope that this is the last time that the Bill is considered by the House. I should respond to the point made by the hon. Member for Woodspring, which showed the spirit in which the Bill has been considered—it has been a highly technical discussion. He referred to the definition of freshwater fisheries management in the Solway firth. Under the current legal definition of the Esk, the estuarial limit is drawn to include all the inner Solway firth. There are significant salmon fisheries in that part of the firth, and there are distinctive practices and regulations governing those salmon fisheries in England and Scotland. The relevant management bodies have drawn to our attention the fact that significant difficulties arise for enforcement of salmon fisheries regulations as a result of the fluid nature of the boundary between England and Scotland in the Solway firth. That is at the heart of the point that has been made. The boundary in the Solway firth has, for many purposes, been taken to be the medium filum of the Esk, and then the combined Esk and Eden rivers at low tide. Things are not getting much simpler as we move through the Bill. The topography of the inner Solway firth is such that that channel can move considerably, and it is difficult to demonstrate to the satisfaction of a court where the channel may have been at any point in time. That has been a frustration for enforcement agencies in that area—not for many years, but for many generations. The good news is that the Government are considering that issue to come up with some final legal resolution to that on-going conundrum.

Liam Fox (Conservative, Woodspring)

On a point of order, Mr. Deputy Speaker. As this may be the final time that we discuss the Bill, may I, on behalf of the Opposition, thank you, the other Deputy Speakers and, through you, Madam Speaker, for the way in which procedures have been conducted, especially the long stages in the middle of our consideration? May I also, through the Minister, thank his civil servants for the information with which we were supplied during consideration of the Bill? Without that, it would have been impossible to come forward with constructive opposition. The Bill is much improved, although, as the Minister noted, we have finished with a debate which has been as clear as mud.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Further to that point of order, Mr. Deputy Speaker. May I associate the Liberal Democrats with the remarks of the hon. Member for Woodspring (Dr. Fox)? We thank you, your fellow Deputy Speakers and Madam Speaker, as well as Ministers and officials. If the Minister and his colleagues show flexibility on the one matter that we have referred back to the other place, this may indeed be the last time that we have to debate the Bill on the Floor of the House.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

There is no need for me to comment on those kind points of order.