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Clause 22

Volume 940: debated on Wednesday 30 November 1977

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Subordinate Instruments

10.30 p.m.

With this we may also discuss Amendment No. 383, in page 11, line 20, leave out 'subsection (6) above' and insert 'this section'.

In coming to Clause 22 we reach that part of the Bill dealing with subordinate instruments. That part of the Bill provides a variety of powers which, in effect, either directly transfer or provide machinery for transferring the exercise of powers of a statutory kind to make subordinate instruments from Westminster or Whitehall to Edinburgh. In moving this amendment, what we seek to do is to explore the thinking behind the Government's decision to allow some of these powers to be exercised to the extent that they are.

In Clause 22 (1) the general provision appears that:
"Where, by or under any Act passed before this Act, any power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on a Minister of the Crown, then, to the extent that—
  • (a) the power is exercisable as regards Scotland; and
  • (b) it is so exercisable exclusively with respect to a devolved matter;
  • it shall be exercisable by a Scottish Secretary."
    In making that provision, the Bill is fairly clear that the order-making power conferred by statute on a United Kingdom Minister is transferred to a Scottish Secretary. But when we go through the rest of the clause we see that that simple provision is taken a great deal further. For example, in subsection (3) with regard to statutory orders, where a special procedure is prescribed under the 1945 Act, there is a provision that those powers shall be exercisable subject to such special procedure as may be prescribed by the standing orders of the Assembly.

    There is absolutely no requirement on the Assembly to provide any such special procedure. Therefore, one would point out, in looking at the general question of the handling of the subordinate instrument-making power, that insofar as Par- liament has provided for a special protecting procedure in certain cases, that is in no way reflected in the power conferred upon the Scottish Assembly and the Scottish Secretaries and there is no obligation that a protection should be repeated, although there is an opportunity for it to be done.

    The subsection with which we are concerned, subsection (6), deals with a form of statutory subordinate instrument, and we are concerned to explore the implications of that for two reasons. The first reason is that once again the question of the Royal Prerogative arises, and we have the opportunity, and it is appropriate and necessary to take it, of pointing out that the whole question of the formal position with respect to the Crown and Her Majesty in Council is not adequately resolved in the Bill. Once again we have the situation in which the logical conclusion of a scheme such as the one presented by the Government would be to provide for some kind of Governor-General arrangement. It may seem as though that is a purely formal constitutional, ceremonial matter. But it is not, because it illustrates once again the problem of considering who is responsible for giving advice to Her Majesty under the provisions purported in this Bill to be exercised by Her Majesty in Council.

    In this case, we are discussing powers conferred on Her Majesty to make an Order in Council. One assumes from the way in which the Bill is drafted and the distinction made between this provision and the others that what is referred to here and what the Government have in mind does not involve any kind of parliamentary scrutiny and that it is a simple executive act which presumably up till now has been exercised by a United Kingdom Minister involving the use of the Privy Council in purely a formal way.

    But we then see that, under this provision,
    "Her Majesty may by Order in Council make provision for securing that, to the extent that the power is exercisable as regards Scotland and exclusively with respect to a devolved matter, it shall be exercisable by order and treated for the purposes of this section as if it had been conferred by that Act on a Minister of the Crown."
    One assumes that, if that has any point at all, it is a curiously indirect way of transferring power to a Scottish Secretary.

    The first question that I ask is: why it is done in that way, and am I right in assuming that, in saying that it shall be exercisable by order and treated for the purposes of this section as if it had been conferred by that Act on a Minister of the Crown, the purpose is not, as one might have thought from looking at the wording of the clause, to transfer the power to a Minister of the Crown but simply to enable subsection (1) to come into effect and to enable the power to be exercisable by a Scottish Secretary? I cannot understand why it is necessary for that to be done in such an indirect way.

    My second question is why this provision for the making of an Order in Council as a means of creating subordinate instruments is, it would appear to be the policy of the Bill, to be eschewed for Scotland. Logically, if there is any exchange procedure, as opposed to a straightforward order of the kind referred to directly in Clause 22(1), the advantage of such a procedure should be conferred on the Scottish Assembly and the Scottish Secretaries, and the separate arrangement instead of an order whereby decisions can be promulgated by an Order in Council ought to be reproduced in some shape or form in respect of the Scottish Assembly.

    Why has not that been done? Is that also a reflection of the mysterious and mythical fact to which we had reference last week that in some way the Scottish Secretaries cannot be allowed to have direct access to the Prerogative?

    The Committee is entitled to an explanation. It is not clear why this power to make an Order in Council is not given an equivalent form for the new Scottish devolved arrangements but, instead, is to be transferred in a curiously transmuted manner via a totally illusory transfer of the power to a Minister of the Crown, when the only purpose of transferring it to a Minister of the Crown appears to be so that by a preceding subsection of the same clause it should be transferred directly on in this curious conduit pipe to the Scottish Secretary.

    This is a convoluted matter, but it is a convoluted provision, and the Committee is entitled to some explanation of what it is about, what is the intention, and how it relates to this mysterious Prerogative to which the Scottish Assembly and the Scottish Secretaries are not to be given access.

    Has my hon. Friend directed his mind to page 11, line 16, where for the only time on this page the word "order" has a small "o", and does that mean that this is not an Order in Council?

    That is the point. As I understand the position, the effect of that—which is what I am putting to the Minister—is to transfer the Order in Council provision, with capital "O" and "C", to the ordinary making of an order under subsection (1). What sort of an order it is transferred into is not clear. I am not being facetious in saying that there are orders and orders. Some orders are affirmable in some ways and some are affirmable in others. But this is transferred by Order in Council into a generalised type of order, with a small "o", and we have no idea. There is no provision here for further definition of the type of order to which it is transferred, so there is a certain amount of explaining to be done, and not just the nuts and bolts of it.

    I recognise that it is conceivable that, although it does not appear in the legislation, there is somewhere lurking in some ministerial or Civil Service mind a rational structure into which all this fits. It certainly does not appear clearly in the Bill. However, it will not answer the real problem of how the whole question of the exercise of the Royal Prerogative and on whose advice it is to be exercised is to be solved in relation to the Scottish Executive. The fact is that there is a proliferation and confusion of the different styles and titles, which are on occasion airily dismissed by the Minister of State as being a matter of no moment, as if it were a piece of pedantry to ask for the meaning of a Bill to be explained. The whole matter is not explained.

    The second point about subsection (6) is the contrast between subsections (1) and (6). In subsection (1) the matter is absolutely direct—where the
    "Act passed before this Act" gives a power "to make, confirm or approve orders, rules, regulations"
    which is exercisable in Scotland by a Scottish Secretary. It shall be so exercisable. There is no room for any discretion. That is the enacting provision itself.

    However, when we come to subsection (6), it suddenly becomes discretionary:
    "Where, by or under any Act passed before this Act, power is conferred on Her Majesty to make an Order in Council, Her Majesty may"
    —I stress the word "may"—
    "by Order in Council make provision for securing"
    that it is treated as if it were conferred by that Act on a Minister of the Crown.

    Who is to advise Her Majesty on the circumstances in which she should transfer the Order in Council into a power exercisable by order by a Minister of the Crown? Is that to be a matter on which she will be following the advice of a United Kingdom Minister or of a Scottish Minister? It is certainly not clear from the provisions of subsection (6), and it is a matter of some importance. If the answer is that it is to be exercised only by a United Kingdom Minister, what on earth is the point of the provision? If the United Kingdom Minister can advise Her Majesty to make an Order in Council under the Act which is referred to at the beginning of subsection (6), why not simply allow him to do just that? The United Kingdom Minister can cause Her Majesty to make the Order in Council—I do not say that in any way disrespectfully—if he is the person who is making the decision whether the particular powers shall be exercisable by order by a Minister of the Crown. If he is making the decision, he might as well exercise the power directly. I see no advantage in giving him the power to change one form of subordinate instrument into another form of subordinate instrument.

    If the power to make an Order in Council transferring the power to make Orders in Council into a power to be exercised by a Minister of the Crown by means of the order—"order" with a small "o"—is to be exercised on the advice of the Scottish Secretary, why does it not say so? If there is some explanation why it does not say so, the Minister will agree that it is undesirable that such a power should be conferred by a side wind in any event.

    10.45 p.m.

    It may be that there is a scheme that explains how this interrelates. The point is not just to pick holes in the provision —because there are holes in it and parts

    of it which no reasonable person, not even a reasonable lawyer, could regard as clear beyond a peradventure—but to bear in mind that genuine difficulties will exist, and will continue to exist, when the Government insist on enacting a procedure involving the creation of a Scottish Executive. They have not the self-confidence or honesty of purpose to provide for a governor-general or equivalent, but insist on creating a hybridised, bastardised constitutional nightmare that cannot be resolved. It was to illustrate that situation that I tabled the amendment.

    I wish I could argue, in a convoluted way, whether there should be large "o's" or small ones, as does the hon. Member for Cleveland and Whitby (Mr. Brittan), but at this hour of the evening I cannot do it.

    I turn to subsection (6), which raises some pertinent questions. Ceremonial is not the main thing that concerns me about the Bill, but I think it must be dealt with in the light of that subsection.

    As and when the time comes, who will be host to Her Majesty the Queen? Hitherto, it has always been the Secretary of State. However, I think there will be difficulties on this matter between the Secretary of State and the First Secretary. I should like to know who will be responsible for entertaining the Queen when she comes to Holyrood House and who will be her chief host. Will it be the Secretary of State for Scotland, or the First Secretary of the Scottish Assembly?

    On the question of ceremonial, I should like to quote some words of Lord Kilbrandon. He said that the State Opening of Parliament was "an English beano". He then got all steamed up about the Garter King of Arms and said that at the State opening of Parliament Scottish Officers of State and Judges were absent. He went on to say that Her Majesty's Judges played a part, but 18 of the Queen's Judges sat in Scotland and none of them was invited to the State opening.

    There are serious issues relating to Her Majesty's own position, because she is on record as saying:
    "I cannot forget that I was crowned Queen of the United Kingdom of Great Britain and Northern Ireland."—[Official Report, 4th May 1977; Vol. 931, c. 424.].
    I submit that on these issues she has a right to be consulted, and I leave that matter there.

    One can clearly see the shape of the clause as the draftsman intended it. He started off by thinking "Here we have subordinate legislation, made by the Secretary of State or Ministers, and we must do something about that if it applies to Scotland". So he started off Clause 1 by saying that any power which is conferred on a United Kingdom Minister or the Secretary of State by subordinate legislation and refers to a devolved matter in Scotland shall be done in certain ways in the Scottish Assembly.

    Having got through five subsections on that, the draftsman suddenly realised, "Good gracious me! There are statutory instruments or subordinate legislation which are not named by a Minister or a Secretary of State at all. What on earth shall we do about that?"

    These things used to be very popular in legislation—although they are not so popular now—and they were done by Order in Council. An Order in Council does not say who recommended Her Majesty to make it, and it cannot be pinned down on anybody except the unfortunate Clerk to the Council, Mr. Neville Leigh, who signs it. However, he does not recommend the Order in Council; that is done by the Minister or Secretary of State responsible for that particular function of government. So, instead of saying that Orders in Council, so far as they relate to Scotland and devolved matters shall be made on the advice of the Scottish Secretary, the draftsman, for some extraordinary reason, took the roundabout way. I shall explain my understanding of the way that he took, and no doubt if I am wrong the Minister will correct me.

    First, there is to be a master Order in Council saying that wherever there are Orders in Council they shall be made by a Minister in future, not by some unnamed recommender and signed by Mr. Neville Leigh: they are to be made by a Minister of the Crown. But they are not to be made by a Minister of the Crown, because, having said that, one can refer back to subsection (1) of the clause and find that they are to be made by a Scottish Secretary. That is a roundabout way.

    But what about this master Order which Her Majesty may make—presumably on the recommendation of a Minister of the Crown of Parliament? Apparently there will be a list in that master Order of the number of cases in which subordinate legislation can be done by Order in Council. Is this to be a full list? Will someone sit down and go through all the statutes to discover all the cases of subordinate legislation by Order in Council, or is it to be done by a number of master Orders, or will it be ad hoc on each occasion—that is to say, when there is a power to legislate by Order in Council the Order will start with a preamble saying that Her Majesty says that this can be done by a Minister of the Crown? That is what it seems like in subsection (6)—unless there is to be a master Order listing all the cases of Orders in Council and saying that they may be done by a Minister of the Crown, which means a Scottish Secretary. That is the problem that we must face.

    Having done all that in this roundabout way, why do we have to destroy for Scotland other forms of subordinate legislation? Why can we not continue with an Order in Council for Scottish legislation? If the House in its wisdom has passed a statute which says that subordinate legislation under that statute shall be by Order in Council and not by Statutory Instrument made by the Secretary of State, there may be some reason for that. It may be a traditional or conventional one, but there is a reason. Now we are altering that and saying that if it applies to Scotland it is to be done not by Order in Council but by the Scottish Secretary.

    My hon. Friend gave a possible solution—that a Scottish Secretary cannot recommend the Queen to do anything and, therefore, cannot recommend Her Majesty to make an Order. We are getting into a completely confused state when we reach that situation. It seems to me unnecessary to alter the form of subordinate legislation when it has already been decided in a statute that it shall be by order.

    Amendment No. 383 seeks to delete the words "under subsection (6) above" in subsection (7) and insert "this section". That means that under subsection (7) the master Order shall come before the House on an affirmative resolution in draft form before it is made. That is very sensible. If we are to have a master Order directing us that in future a whole series of Orders in Council shall not be Orders in Council, we should see it in the House. The point of letting us see it in draft and approve it is that it may be doing some harm to legislation affecting the rest of the United Kingdom. It will be splitting existing legislation, splitting the way in which we make legislation.

    We are saying "Here is a statute which says that we shall legislate by Order in Council. In future we shall legislate partly by the Scottish Secretary and partly by Her Majesty on the recommendation of the Secretary of State here. It is right that we should see how that splitting is being done, both in the subject matter and in the way of doing it". Therefore, I am prepared to accept subsection (7) so far as it refers to the master Order under subsection (6).

    But surely in the case of any of the Statutory Instruments or Orders in Council with which we are dealing we are being directed by the clause to split them. If they apply to the whole United Kingdom, as I suppose 99 per cent. of them do, we are in future to split them and exercise this subordinate power partly by the Scottish Secretary and partly by a Secretary of State of the United Kingdom. If that is to be done it should come before the House in the same way as the master Order in Council would under subsection (6).

    I complained some days ago, in raising a point of order, that the Bill in certain clauses, and certainly in Clause 22, trespasses on the laws of the United Kingdom outside Scotland, although it is intended, of course, to deal only with the law as it applies to Scotland. Worse than that, it trespasses on the ways of making the law. Here is a typical example in this clause. It is not merely a textual law of the United Kingdom that is being altered but the methods of making the law Here we have an example where we are told that where we have the old and trusted form of subordinate legislation by Order in Council, no longer shall that legislation be by recommendation of Her Majesty and Her Majesty taking the step of making the Order in Council, but that in future it shall be done by the Scottish Secretary, who has no access to Her Majesty and cannot advise Her Majesty to do it by Order in Council.

    When we come to having to change the law in this way, it is not only hopelessly confusing—I hope that I have not caused the Committee to be more confused than when we started—but it strikes at the roots of our—

    It being Eleven o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again, pursuant to Order [16th November].

    Committee report Progress; to sit again tomorrow.