Section 12 — Remedial orders

Convention Rights (Compliance) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:30 pm on 30th May 2001.

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Photo of Michael Matheson Michael Matheson Scottish National Party

Amendment 46 refers to section 12 of the bill and seeks to bring the bill into line with the Human Rights Act 1998. As it stands, the bill allows ministers to use remedial orders to rectify incompatibility with the European convention on human rights when it is considered "necessary or expedient" to do so.

First, I find it difficult to imagine a situation in which it would be expedient, but not necessary, to make a remedial order to address any ECHR incompatibility. At stage 2, the minister lodged an amendment that stated that the remedial orders will be used only when "there are compelling reasons". Surely any such compelling reasons would fall under the category of necessity. As a result, there is little justification for continuing to have the catch-all phrase "or expedient" included in section 12 of the bill.

Secondly, the bill's explanatory notes state that the proposed legislation mirrors the Human Rights Act 1998. However, I refer the minister to section 10(2) of that act, which states:

"If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may ... make such amendments to the legislation as he considers necessary to remove the incompatibility."

The Human Rights Act 1998 does not mention expediency. Given the concerns that have been highlighted about the use of remedial powers, I believe that the word "necessary" gives sufficient latitude for ministers to act where they have compelling reasons to address ECHR incompatibility. As a result, I do not believe that it is appropriate to invoke remedial orders purely on the basis of expediency.

I move amendment 46.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I thank Mr Matheson for giving us an opportunity to air the matter again. During the stage 2 debate, Iain Gray said that we would give the Parliament an indication of the thinking behind the provision in question. Mr Matheson is right to point out that section 12 is an important section of the bill. It gives Scottish ministers new powers to extend the range of circumstances under which they are able to make remedial orders to remedy actual or perceived incompatibilities with the European convention on human rights. As has been pointed out, the section is drafted to allow Scottish ministers to make a remedial order where they consider that to be "necessary or expedient".

Mr Matheson referred to the wording of section 10(2) of the Human Rights Act 1998. I refer him to section 107 of the Scotland Act 1998, which states:

"Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of—

(a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament which is not, or may not be, within the legislative competence of the Parliament, or

(b) any purported exercise by a member of the Scottish Executive of his functions which is not, or may not be, an exercise or a proper exercise of those functions."

The wording that appears in section 12 of the Convention Rights (Compliance) (Scotland) Bill is intended to reflect the provision in the Scotland Act 1998.

Because of concerns that were raised by the Justice 1 Committee at stage 1, an amendment to the bill was introduced at stage 2 that introduced additional wording to the bill, which stipulated that ministers must have

"compelling reasons for making a remedial order, as distinct from taking any other action."

It is important to emphasise that the "compelling reasons" test will apply in addition to the "necessary and expedient" test as set out in section 12(1) of the bill.

We must recognise the different way in which the European convention on human rights operates in Scotland relative to the functions of Scottish ministers, because the ECHR is incorporated into the Scotland Act 1998, our procedures and our fundamental constitutional framework. Scottish ministers are not in a position to act incompatibly with the ECHR, even if primary legislation appears to require or authorise them to do so. That is why we have sought the powers that are set out in section 12.

The word "expedient" is included to account for situations in which ministers are required to take action on an issue that is pending before the court and on which the Executive expects a declaration of incompatibility, or a similar finding. One might say that the word "necessity" covers situations in which the court has made its decision and we are up the creek without a paddle, to put it colloquially. By including the word "expedient" in the bill, we want to cover situations in which the court has not yet made a declaration of incompatibility, but is expected to do so, or situations in which ministers have been advised that there is a serious risk of incompatibility, despite legislation not yet having been challenged in court.

Photo of Michael Matheson Michael Matheson Scottish National Party

Is the minister saying that the Executive would use the expediency test only if a court were about to rule that legislation was incompatible with the convention? Is he saying that it would not use the necessity test to address problems in advance of a ruling?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I am referring to situations in which there has not been a ruling, but in which the court is expected to issue a declaration of incompatibility. I also said—Mr Matheson might not have heard this, because he was trying to intervene—that there might be circumstances in which ministers are advised that there is a serious risk of incompatibility, although legislation has not yet been challenged in the courts. It might then be expedient to act, rather than to wait for a ruling that makes action a necessity. The provision seeks to ensure that we have the scope to cover situations in which a court ruling is expected, or in which we have been told that there is a serious risk of incompatibility, although a challenge has not yet emerged.

During the stage 2 debate, Gordon Jackson expressed the view that an expediency test was not the necessary result of introducing a compelling reasons test. This is getting very technical, but there is an important distinction to be made.

Photo of Jim Wallace Jim Wallace Liberal Democrat

Yes, I know.

I have indicated the circumstances in which the expediency test would arise: it relates to the nature of the incompatibility. The compelling reasons test concerns the use of a remedial order rather than some other vehicle, such as primary legislation. The terms "necessary" and "expedient" relate to the actual incompatibility that is the matter of concern, whereas the compelling reasons test is whether we should address that incompatibility by way of a remedial order rather than through primary legislation. There is a clear distinction between the two, although I am conscious of the fact that it might not be obvious. If members read the Official Report, they will recognise the distinction.

Any action that ministers may propose to take under section 12—whether we consider that action necessary or expedient—cannot be taken until we have established that there is a compelling reason for proceeding with a remedial order rather than following other potential routes, most obviously the primary legislation route. That is why we find amendment 46 inappropriate, and I invite Mr Matheson to withdraw it.

Photo of Gordon Jackson Gordon Jackson Labour

I am tempted to ask the minister to repeat all that.

Photo of Gordon Jackson Gordon Jackson Labour

It was difficult to follow.

We discussed the matter in the committee, where we are frank about such things, and I have reservations about the first use of the word "expedient". I can see what Michael Matheson is getting at—I had not thought of it before—in relation to things that may happen in future, but I would have thought that that situation would be covered, by necessity, in the phrase "may be incompatible". I recognise expediency in relation to the incidental, consequential provisions further on in section 12, and I do not think that Michael Matheson is trying to take out the word "expedient" at that stage.

I took a position on the issue in the committee, and I accept the fact that the catch-all phrase "compelling reasons" probably means that there is not the danger that Michael Matheson is afraid of, so I am not prepared pointedly to disagree with the minister. Nevertheless, I have reservations about the use of the word "expedient" in that context. To the normal mind, "expedient" has a connotation that is quite different from necessity or compulsion—it just means something that suits. I would have preferred "expedient" not to have been used in the original section 12, but because of the "compelling reasons" catch-all, I am prepared to accept that it will not matter much and I am not pushed to remove the word. It is a difficult problem, and I will read what the minister said in the Official Report, as I suspect that I did not fully understand it the first time round.

Photo of Phil Gallie Phil Gallie Conservative

I am delighted to be more enthusiastically behind the minister's comments. At long last, there is something good in the Scotland Act 1998 that I want to sign up to. The mention of expediency, to which the minister referred, reflects that perhaps our problem is that we incorporated the ECHR a bit prematurely in the Scotland Act 1998; many of our senior justice figures have said that in recent times, as did some of the judiciary well before the Scotland Act 1998 was passed.

Perhaps one of the greatest strengths of the bill is the fact that it will give the minister powers to deal with the unforeseen. We have been caught out on a number of occasions since the setting up of the Parliament, and we do not want the justice system to be put under a question mark. I believe firmly that the minister is right in taking the power. I am sure that he will use it extremely wisely. It is necessary.

Photo of Jim Wallace Jim Wallace Liberal Democrat 3:45 pm, 30th May 2001

I am grateful for Mr Gallie's support, which I am sure arises out of conviction rather than expediency.

I understand what Gordon Jackson is saying. The word "expedient" was picked up as a direct read-across from the Scotland Act 1998. I accept that, in some circumstances, it can sound as if it is a synonym for convenience, but—as I hope I made clear in my explanation—that is not the intent. Expediency falls short of an absolute necessity. If a provision were challenged in court on the ground that it was not absolutely necessary, we would be able to say that it had been done in anticipation of something that could become a necessity.

Photo of Michael Matheson Michael Matheson Scottish National Party

I confess that, after the minister's explanation, I was wavering about what to do with my amendment, but, having heard Phil Gallie's contribution, I have made up my mind.

Members have to reflect on the important role that is played by this part of the bill. It gives considerable powers to ministers to provide remedial orders to amend primary legislation, which the chamber and the parliamentary committees will be unable to amend. The Parliament will be able to pass comment on the legislation, but will have to either take it or leave it. Given the wide-ranging nature of the powers, it is important that there should be an element of necessity before legislation is changed by means of a remedial order; it is not enough to say simply that it would be expedient to do so.

I take on board the distinction that the minister is trying to make, but I find it difficult to understand why his aim could not be achieved with wording that mentions only the idea of necessity. There is nothing in the bill that would prevent that. In defence of the inclusion of the word "expedient", the minister talked about a situation in relation to which his officials had advised him that there would be a clear incompatibility that, if it were not acted on, could leave the legislation open to challenge. However, that would be a compelling reason and would make the passing of a provision necessary. Similarly, if a case were being challenged in the courts and it looked as though there would be a ruling that there was an incompatibility, there would be a compelling reason and a necessity to act in the interest of Scottish ministers.

Taken together, the factors of compelling reason and necessity give ministers sufficient ground and latitude to make provisions.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

Further to what Mr Matheson has just said, it is true to say that, in the case that Mr Wallace outlined, there would not be the same urgency, because the legislation that would have to be amended by order would not, at that point, have been found to be incompatible by any court. That would allow the minister time to amend the offending legislation by means such as emergency legislation in this chamber, rather than by making an order.

Photo of Michael Matheson Michael Matheson Scottish National Party

That is correct, and the situation that Mr Morgan talks about happened with the Mental Health (Public Safety and Appeals) (Scotland) Bill because of a challenge against the Mental Health (Scotland) Act 1984.

I take on board what the minister said about the Scotland Act 1998, but the policy memorandum for the Convention Rights (Compliance) (Scotland) Bill says that the remedial powers section mirrors the provisions that are contained in the Human Rights Act 1998. In the section of that act that deals with remedial powers, there is no mention of expediency.

Photo of Gordon Jackson Gordon Jackson Labour

Having heard the minister's explanation, which I had not heard before and which is undoubtedly interesting—[ Laughter. ] I did not mean that pejoratively.

Having heard the minister's explanation, I ask Mr Matheson what harm inclusion of the word "expediency" would do. I do not like the word, but I cannot see what damage it would do, given the explanation that we have heard.

Photo of Michael Matheson Michael Matheson Scottish National Party

It is a catch-all word that people who draft bills like to include just in case a situation arises that they have not considered. However, the ministers have been unable to come up with a situation in which the factors of compelling reason and necessity would not give them the power to act. The question is, if there is no need for the word to be in the bill, why include it? It has been included because it is a catch-all word.

I will press my amendment.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 46 be agreed to. Are we agreed?

Members:

No.

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 19, Against 62, Abstentions 0.

Amendment 46 disagreed to.

Photo of Michael Matheson Michael Matheson Scottish National Party

Amendment 22 is, essentially, a paving amendment to amendment 23.

Amendment 23 reflects some of the concerns that exist around the provisions under section 12, which deals with remedial orders. As was mentioned in the debate on amendment 46, ministers will have wide-ranging powers, as the bill stands, to modify by way of a remedial order any sort of instrument or document, although it may not be directly related to the functions of the ministers.

At stage 2, the Deputy Minister for Justice said, of instruments or documents that would not relate to ministerial functions:

"I admit that we have no particular documents or instruments in mind".—[Official Report, Justice 1 Committee, 25 April 2001; c 2370.]

He was unable to give us an example in which such powers would be required.

It is only right for the Parliament to be a little suspicious of giving ministers powers to change things of which they are unable to give specific examples. Ministers should be able to use the powers under remedial orders only in connection with functions of the Scottish Executive. On that basis, and given that the minister was unable to give us clear examples at stage 2 of the type of documents and instruments that ministers may have to change and for which they do not have direct responsibility, I do not believe that it is appropriate that we continue to have such provision in the bill.

I move amendment 22.

Photo of Iain Gray Iain Gray Labour

As Mr Matheson has explained, his amendments 22 and 23 would amend section 12(2)(d), so that modification in a remedial order of any instrument or document that was not an enactment or prerogative instrument could be carried out only if it was an

"instrument or document relating to the exercise or purported exercise of functions by the Scottish Ministers".

Mr Matheson lodged a similar amendment at stage 2, and he is quite right to say that, at that time, he asked me for an example of particular instruments or documents that we had in mind that would fit in the category of being neither enactments nor prerogative instruments, but which would be likely to need amendment by way of the remedial order power.

I fear that Mr Matheson is, again, correct to say that I could not provide an example. My position was that we needed to be flexible, because we were unsure what the future could bring. It is difficult to predict exactly what amendments may need to be made to our law in future as ECHR case law develops before the domestic courts. I confess, further, that I find myself still unable to give an example. In recognition of the points that have been raised by Mr Matheson, in all humility and to show our disinterest in catch-all phrases, I am happy to accept amendments 22 and 23.

Photo of Michael Matheson Michael Matheson Scottish National Party

This is a result—I have not written a speech for such an occasion.

I thank the minister for exhibiting such humility before so many of his fellow members. I have no difficulty with the use of remedial powers in relation to issues for which the Scottish ministers have direct responsibility. However, given that the minister has failed on at least four occasions to give an example, it is only right that the Executive should accept that there is no need for such a power.

Amendment 22 agreed to.

[Amendment 23 moved—[Michael Matheson]—and agreed to.]