HC Deb 24 March 1976 vol 908 cc396-7
35. Mr. Russell Johnston

asked the Lord Advocate what studies his Department has made of the process of judicial review in other countries.

The Lord Advocate

In considering the question of judicial review, officials of my Department have had regard to the process of judicial review in certain other countries, including a number of members of the Commonwealth and the Republic of Ireland.

Mr. Johnston

Is the right hon. and learned Gentleman aware that I am pleased to hear that such studies have been undertaken, but have they led him or his Department to conclude that any effective decentralisation of power within the United Kingdom requires some formal division of power which, in turn, will require some interpretation of vires? Would it not be far better and more appropriate for a judicial matter of this sort to be decided by a court rather than by a political Minister, as suggested in paragraphs 58 and 59 of the White Paper?

The Lord Advocate

It would be wrong to suggest that the studies of this aspect are complete. The hon. Gentleman will perhaps understand why I cannot give a categorical reply to his question at the moment.

Mr. Buchan

Surely the hon. Member for Inverness (Mr. Johnston) has got it wrong. Should not a distinction be drawn between the two types of ultra vires—that in relation to a Bill going through the Assembly, endorsed or otherwise by Parliament, and that in the judicial review afterwards in which the law can be challenged in the courts because, having passed the Assembly and the Parliament, it was thought to be ultra vires? I hope that we do not admit a judicial review and that what is passed by the Assembly and Parliament becomes law.

The Lord Advocate

My hon. Friend draws an important distinction and tempts me, but I shall resist the temptation.