From: David Rogers
Constitution Group - Functions
20 November, 1998
Mr Parr, HD
Copy to:'
Mr Walford, CG H __
'_
Mr Ewing, CG
Mr Ferguson, Liaison Division
Mr Mason, EID
1·
Mr Jamieson, CG
Mr Mullin, Sols
Ms Hibbert, CG
SECURE ELECTRONIC
COMMERCE
BILL
1.
I refer to your minute of 19 November to Ms Hibbert which pointed out that the
Queen's Speech will include the Secure Electronic Commerce Bill which includes certain
provisions about devolved matters in Scotland.
I have also seen Mr Mullin's
minute of
19 November.
Copies of this correspondence are attached for those who have not seen it
before.
2.
I have nothing to add to Mr Mullin's comments about the question of whether this
Bill will be, or should be deemed to be, a pre-commencement enactment.
3.
The question about whether this Bill should make provision about devolved matters in
Scotland is really quite separate. As you say, the Government has announced that it expects a
convention to develop whereby the Westminster Parliament will not normally legislate about
devolved matters in Scotland without the consent of the Scottish Parliament.
There has been
quite a bit of thinking over the last couple of weeks about this very point, and in particular
about the arrangements which need to be made for those Bills which may be going through
Parliament at the time when the Scottish Parliament assumes is powers. Rather than going on
at length about the conclusions
which have been reached, I am copying ·the relevant
correspondence to you, Mr Mullin and Mr Mason.
4.
You will see from the annex to Mr Ferguson's minute of 11 November that there are a
number of Westminster Bills making provision about devolved matters in Scotland which
may still be before Parliament
when the Scottish Parliament takes up its powers.
Mr
Walford's minute of 19 November explains the CG and Liaison Division thinking about how
to deal with these Bills.
The Secure Electronic Commerce Bill is in a slightly different
position in that it is not to 'be introduced until Easter next year, and its Parliamentary passage
may drag on into the following session.
it will look rather odd for the Government to be
introducing
such legislation
during the purdah period before the Scottish Parliamentary
election, and might be difficult to defend that as consistent with the impending devolution of
p~ary
legislative competence to the Scottish Parliament.
Are there strong reasons for the
1120P ARR.DOC
Bill to make provision about devolved matters in Scotland? If not, it might be better for such
provision to be left to the Scottish Parliament, with the Westminst~rBill
confining itself to _
other matters.
DAVID ROGERS
Constitution Group
Area G-H93
Victoria Quay
Ext 45534
20 November 1998
1120PARR.DOC
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~ .~..
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..
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n
(David)
Subject
: RE:FWD:DEVOLUTION:
SECURE ELECTRONIC
COMMERCE
BILL
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SECURE ELECTRONIC
COMMERCE
BILL
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15:34
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No
Ewa,
David
I have
looked
at the papers
on secure
electronic
commerce.
I agree
with
David
that
it might
be more
sensible. for him to reply.
He might; want_to
attach
a copy
of my note
of yesterday's
meeting
which
Tracy
is about
to
issue. ,
I do wonder
given
that the Bill Will not be introduced
until
Easter
next
year
(i.e. probably
during
the pre-election
purdah
period)
whether
DTI
should
not be encouraged
to make
it an England-only
Bill.
It will
look
very
odd to publish
a Bill
at Westminster
just as MSPs
are going
out on
. e stump
proclaiming
the virtues
of a Scottish
Parliament
with
primary
'legislative powers.
It would
appear
to make a mockery
of the convention.
--
"
'
Happy
to discuss ..
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Ms Hibbert, CG
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Copy to:
Mr Mason, EID
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Mr MulIin, Sals
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SECURE ELECTRUNIC
CUMMERCE B.I~LP•.••.", .•.J.. {:.4. c...r-.J~
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1.
This minute seeks advice on the potential impact of the above DTI Bill.
p~'
1.
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2.
We have just been informed by the DTI that the Secure Electronic Commerce Bill is ~
~
to be included in the Queen's Speech next week and is to be subject to the new carry-over ~
17""'-
procedure.
That means the Bill is to be considered in the Commons in the coming session,
~$h
but that consideration in the Lords will be held over until the 1999/00 session.
DTI expect ~
that the Bill will be introduced no earlier than Easter next year.
~.
3.
As well as legislating on reserved matters, the Bill wiil seek to amend substantive
~
Scots law. Far instance, it will amend the Requirements
af Writing (Scotland) Act 1995 sa
II
that an electronic signature would be recognised in Scots law.
In addition, the Bill will
11 H
provide Ministers with order-making powers under which the relevant Minister would be able
to amend the law to ensure that (where appropriate) requirements for material to be provided
in writing may be satisfied by means of electronic communication.
Since such powers would
relate in Scotland to substantive;
devolved civil law, it is our intention to ensure that the
order-making powers would be available to Scottish Ministers after devolution ..
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~
4.
The questions which arise ITom the above are as follows:;..
/---.
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-l~L.-u.-. 4.1 Will the DTI Bill beconsidered apre-commencement enactment? Le~ .~ c;t::e,
'.A1 I
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p~
11k.
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If the ans~er to 4.1 is "no", what arrangements will apply to the Westminster
~
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"",,-tt... 5 •. r-e-. \ \ ParlIament amendmg devolved Scots law?
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~ :J;'4.3 Once the primary legislatiau is made, what consultatian amuigements might
'Ite.•••••.••f
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be n~cessary between Westminster and Scottish Ministers in the making of the ?rders
~
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5.
To answer 4.1, my view is that the DTI Bill woVlid not be considered
a pre-
A-vr)
k\\ ~
commencement
enactment, but I would welcome your thoughts.
I reached my view by
.
l
considering
Clause 53 of the Scotland Bill.
Clause 53 (copy attached)
defines
"pre- ~~
~d ~
commencement
enactment".
The DTI Bill will be primary legislation, sO"53(3)(c) would
not:k ~
sf fI'_ ~ apply. Neither would the DTI Bill be.passed before or in the same session as the Scotland +le.
fA l(
~"""~)
Bill, so 53(3)(a) would not apply.
I assume that Clause 53 of the Scot~and Bill will be
~
. ~
\..\W' commenced before the DTI Bill would be enacted, so 53(3)(b) would not apply.
N~
V:W"
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t'"~ 6.,
The
Quick Guide to Devolution'·issued to staff last month confinned (in paragraph4)
f;;... ~
that the Westminster Parliament will retain the power to leaislate on devolved matters.
So,
~
~
~~
clearly Westminster would be able to make the amendments mentioned above at paragraph 3.
However, the
Quick Guide to Devolution also referred to the expectation of a convention that
the Westminster
Parliament
would not normally legislate on devolved matters without the
- ----~--._.-
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_
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_
consent of the· Scottish Parliament.
That would seem to be the way forward for 4.2. I should
be grateful if you would explam further how this convention might work.. Fur illf)ti:U1~e,
how
would the Scottish Parliament be consulted and how would the consent be obtained, directly
from Westminster or via Scottish officials?
In addition, what would happen if the Scottish
Parliament refused consent and decided itself to legislate to amend Scots law (either to match
what Westminster
proposed,
or even to take a different approach)?
It wuuld help
iLl
instructing the DTI Bill if we could alert the DTI now to any particular requirements of the
convention.
I would appreciate any information you might be able to give me, though I
realise it might still be too early for you to say much.
7.
I assume the answer to 4.3 lies in the interdepartmental
concordat with the DT!.
I
would appreciate if Mr Mason could consider this and whether any special provision is
required.
8.
I would be happy to discuss.
PAULMPARR
SOlID
Civil Law Policy Branch
Spur VI, Saughton House
Ext.: (4) 2206
Fax: (4) 2195
19 November 1998
.Y
· - mhe functiun::;Illtaltionedin sub~-s-hall,se--faF-as.-they--are
exercisable within devolved competence, be exercisable by the Scottish
Ministers
instead
of
by
a
Minister
of
the
Crown.
(a) those of Her Majesty's prerogative and other executive functions
which are exercisable on behalf of Her Majesty by a Minister of the
Crown,
(b) other functions conferred on a Minister of the Crown by a
prerogative instrument, and
(c) functions conferred on a Minister of the Crown by any pre-
commencement enactment,
but do' not include any retained functions of the,' Lord Advocate.
(3) In this Act, "pre-commencementenactment"means-
(a) an Act passed before or in the same session as this Act and any
other enactment made before the passing of this Act,
(b) an enactment made, before the commencement of this section,
under such an Act or such other enactment,
(c) subordinate legislation under section 106, to the extent that the
legislation states that it is to be treated as a pre-commencement
enactment.
(
(Ii
Document Outline
