---

Legislative and Regulatory Reform Bill

My Lords, I ought to address a point made on Report by the noble Lord, Lord Goodhart, about the Scotland Act, on which, as the noble Lord observed, I agreed to reflect. As he astutely judged, I am unlikely to promise that we shall change things, but one can always think about these things. The noble Lord suggested that any amendment to the Scotland Act would be of constitutional significance. That is a large statement but one that has to be taken into account and thought about as it has many implications. He did so on the grounds that the Act was, "““in a sense, the possession of the Scottish Parliament””.—[Official Report, 26/10/06; col. 1309.]" I do not think that anyone would disagree fundamentally with that. I am pleased that the noble Lord recognised the not insignificant interest in the devolution Acts that Westminster has, not least because it is this sovereign Parliament that debated and passed the Acts and chose to devolve power to the then newly created legislatures. I labour the point about sovereignty because devolution is based on the retention of a sovereign UK Parliament—a Parliament that continues to be able to legislate on any matter, reserved or devolved. We, of course, choose to exercise a self-denying ordinance in relation to devolved matters in Scotland through the Sewel convention. Indeed, the Bill before us contains provisions in Part 3 that require the consent of the Scottish Parliament, and that consent was overwhelmingly given on 5 October 2006. But the sovereign UK Parliament retains the responsibility for reserved matters such as the constitution. The Scotland Act itself is a matter reserved to Westminster. Of course, we must respect the views of the Scottish Parliament. That is why we have listened not only to your Lordships’ concerns about the Bill but also to our colleagues in the Scottish Parliament. We brought forward the amendment debated and agreed on Report, which adds a new precondition—which the noble Lord welcomed—ruling out provisions which the Minister considers to be of constitutional significance. We firmly believe that this is the right way to address those concerns and reflects the fact that there is not a consensus on this issue. The constitutional precondition allows for minor changes to enactments which contain provisions which are constitutionally significant—that would include the devolution Acts—but only ever for the purpose of better regulation, as the limits of the order-making powers make clear. The constitutional precondition rightly respects the sovereign nature of Westminster within our governance arrangements. On Report, the noble Lord, Lord Goodhart, said that he could not support a list of constitutional statutes because it would need constant updating and, importantly, because, "““many statutes contain provisions that are constitutionally important alongside those that are not””.—[Official Report, 26/10/06; col. 1309.]" This is exactly what the Government’s amendment introducing the new constitutional precondition was intended to address. It is not easy to reconcile the noble Lord’s statement with the proposition that any change to the Scotland Act would be of constitutional significance. It is worth adding that Clause 9 already restricts the order-making powers to reserved matters; that is, to matters for which only this Parliament is responsible. So these order-making powers cannot be used to make changes to legislation that has been passed by the Scottish Parliament. The only exception is that the Bill allows for incidental and consequential changes to be made to devolved matters, but only ever for a reserved purpose. This is consistent with the fact that the Scottish Parliament can and does make incidental or consequential changes to reserved matters for a devolved purpose without requiring procedure in, or the agreement of, the Westminster Parliament. I highlight an important point that I think will provide the noble Lord with some of the comfort which he seeks. The Scotland Act recognises that over time changes may have to be made to the reservations and exceptions set out in Schedule 5. Section 30(2) of the Act therefore allows the schedule to be modified through an Order in Council. A draft order has to be approved by the Scottish Parliament and both Houses at Westminster before it is made. The initiative in proposing a Section 30(2) order can be taken by either Administration but both sides agree to both the principle and the detail before the order can be pursued. Since devolution, the Government are committed to that being the appropriate route to effect alterations to the Scottish Parliament’s legislative competence. The Legislative and Regulatory Reform Bill does not change that arrangement. Orders under the Bill should not be subject to procedure in the Scottish Parliament. As I have already mentioned, the Bill restricts the order-making powers to reserved matters; that is, matter for which only this Parliament is responsible. It would not therefore be appropriate for orders to go before the Scottish Parliament for approval. That is particularly true when one considers that the Scottish Parliament can and does make incidental or consequential changes to reserved matters for a devolved purpose without requiring procedure in or the agreement of the Westminster Parliament. For those reasons, we stick to our original position. I invite the noble Lord to withdraw his amendment.