My Lords, this amendment seeks to introduce a new paragraph into Clause 40. I will speak also to Amendment 140, which raises essentially the same point in relation to Clause 68. With both these amendments I seek to introduce a provision to the effect that the regulations referred to in those clauses which apply to Scotland may be made only with the consent of the Scottish Parliament.
Before I develop the reasoning behind these amendments, I owe the Ministers an apology for not having raised this issue in Committee. I am afraid that frankly I did not notice it until we reached this stage. It was prompted by the debates which took place on the Scotland Bill, to which I shall refer in a moment, which raised a point which bears on the significance of the legislation in this Bill which I am seeking to deal with.
I should add that the same point arose in relation to Clause 34. I tabled an amendment earlier on Report but, due to other business as Convenor, I was not able to attend and could not move it. In a way, it does not matter, because the point was essentially the same. Because of the way in which the Bill is framed, one point links all three clauses in the same way.
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It is a feature of the Bill that the provisions which apply to England and Wales are set out in full and we are debating them, line by line, as we ordinarily do; but although the Bill applies to Scotland, Wales and Northern Ireland, it does not set out the measures which deal with certain devolved matters relating to those Administrations. That has three consequences. First, this House—or, indeed, this Parliament—is not able to debate the detail of the legislation. As one can see in Clause 40(1), the Secretary of State is seeking to be given power, by regulations, to make such provision as he considers appropriate to enable any of the provisions to apply in relation to Wales, Scotland and Northern Ireland. These provisions are not set out in the Bill.
Secondly, as I understand the purpose of these provisions, it is not intended that the devolved legislatures should legislate on these matters either. I have checked the website so far as Scotland is concerned and I cannot see any legislation before the Scottish Parliament seeking to reproduce what we have in this Bill. Thirdly, the measures which seek to apply these provisions in relation to Wales, Scotland and Northern Ireland are to be contained in a statutory instrument. As we all know, we cannot amend a statutory instrument in any respect. We have to take simply what is on the face of the instrument and say either yes or no to it. A troubling aspect of the Bill is the inability of this House, or the devolved legislatures, to debate in detail what the Secretary of State is proposing to do to give similar effect to its provisions in those legislatures.
I will develop this a little bit more, to emphasise that these three chapters—I will leave aside the first one, apart from a quick reference to it—are dealing with devolved matters. Clause 34 in Part 1, which I was not able to deal with, relates to the labour market and makes particular provision regarding illegal working in licensed premises. The legislation for England and Wales, which the Bill seeks to amend, is to be found in the Licensing Act 2003; it has a parallel in Scotland in the Licensing (Scotland) Act 2005. The Scottish Act traces, more or less chapter by chapter, section by section, what one finds in the Licensing Act 2003. It is not too difficult to see how the provisions which this Bill seeks to put into the 2003 Act could be fitted into the 2005 Act to make parallel provision. However, we are not seeing that in this Bill, and we would not have the power to discuss any amendments to it if it came up in a statutory instrument.
Amendment 73 deals with Clause 40, which appears in a part of the Act which is concerned with access to services. As we heard in earlier debates this afternoon, it also deals with residential tenancies. Those are the subject of legislation for England and Wales found in the Housing Act 1988 and the Rent Act 1977 and they have their parallels in Scotland in the Housing (Scotland) Act 1988 and the Rent (Scotland) Act 1984. Once again, one can see exactly how the provisions that come in for England and Wales, in relation to the English legislation, could be fitted in to the Scottish legislation as well to give similar effect to it. Of course, we have the deficits, which I have drawn attention to, in being able to examine, criticise and comment upon what might be forthcoming when we have detail.
Part 5 of the Bill concerns support for certain categories of migrants. Amendment 140 relates to Clause 68, which deals with the transfer of responsibility, I think between local authorities, for people who are described as “relevant children”. The way this is to be done, so far as this Bill is concerned, is by making amendments, which are found in Schedules 10 and 11 to the Bill, to the Children Act 1989, with the parallel provisions in Scotland to be found in the Children (Scotland) Act 1995.
We are not dealing with trivial details here. If you look at the Children Act, for example, in the schedules, this occupies nearly 20 pages of legislation—a very considerable package of legislation, which, if we follow the provision in the clause, will be reproduced in a statutory instrument. Similarly, in the Licensing Act matter, it was 20 pages of legislation. The material in the Housing Act is set out in four clauses, which are considerable in their detail. So these are not trivial matters; they are very considerable matters, which, as we have been hearing in relation to residential tenancies, may have very considerable consequences in regard to penalties, the risk of discrimination and so on. There is a real issue here about the way in which the Government are seeking to legislate on these important matters.
Those of your Lordships who have been following the Scotland Bill will be aware that in Clause 2 there is a provision dealing with the Sewel convention, which has attracted a good deal of discussion. As it stands in the Scotland Bill as amended on Report, the clause states that,
“it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.
The word “normally” has attracted some criticism and in a way it gives me a very good justification for asking questions about the legislation we see in this Bill. Is this a normal situation, where the consent of the Scottish Parliament will be sought, or is it not? There has been very little clarification in the debates on the Scotland Bill as to what exactly is intended by the clause.
So far, rather to my dismay, the Government show no sign of introducing any kind of amendment to Clause 2 to deal with another matter, which the noble and learned Lord, Lord McCluskey, who I am glad to see in his place, raised about the possible justiciability of a failure to observe the Sewel convention. I hope the noble and learned Lord, Lord McCluskey, can hear what I am saying because exactly that problem arises in regard to what we see in this legislation. Here the Minister is proposing to take measures in relation to Scotland with regard to devolved matters. If he was not to seek the consent of the Scottish Parliament, there may be really considerable consequences. Perhaps I should pause while the Minister confers with his colleague but the point is sharply raised as to exactly what we are dealing with here.
There are two stages at which one has to consider the problem. First, because this Bill falls within the formula in the Scotland Bill, I would have expected—but I do not know—that the legislative consent of the Scottish Parliament will be sought in relation to this Bill because it contains provisions, such as the clauses that I referred to, which are of very considerable
interest to those who are concerned with devolved matters in Scotland. Secondly, there is the stage of the statutory instrument, which is perhaps the more important stage, as to whether it is the intention of the Government that the consent of the Scottish Parliament should be sought to the instruments—there will be three of them, no doubt—that the Minister is proposing to put before this Parliament for its approval. There are really at least two features. The first is the rather second-hand way in which the legislation for Scotland is proposed in the Bill, and the second is the very considerable concern as to the consequences for the Bill if the formula in the Scotland Bill about legislative consent is not followed in both of these two stages.
I have been speaking about Scotland but I have been greatly encouraged that the noble Lord, Lord Wigley, has used exactly the same formula in relation to Wales in tabling amendments to Clauses 40 and 68. He is not concerned, rightly, with Clause 34 because Wales is not mentioned in it. But it is mentioned to exactly the same effect in relation to residential tenancies and relevant children, which are matters in the devolved area for Wales. I am not speaking for Northern Ireland but I imagine that the same point arises in relation to it on all three clauses, as it is mentioned in Clauses 34, 40 and 68.
There are quite important issues here that require explanation. I have apologised for not bringing this forward before but I would be grateful if the Minister will tell us more about what is going on. If he finds it easier, it might be better if he writes to me to explain exactly what is proposed so that, at the first stage, when the Scottish Parliament wonders whether it should give legislative approval to this Bill, it knows exactly what it has to expect and whether it will have a chance to look at the detail when that is formulated. For those reasons, I beg to move.