§ Considered in Committee.
§ [Progress, 23rd November]
§ [Mr. OSCAR MURTON in the Chair]
§ 3.32 p.m.
§ Mr. Tam Dalyell (West Lothian)On a point of order, Mr. Murton. I wish to raise a point of order of which I have given you fairly reasonable notice. I say at once that it concerns tomorrow's business. None the less, it is a serious matter and I believe it courteous to raise it now. The purpose of the point of order is to request the presence of my right hon. and learned Friend the Attorney-General and my right hon. and learned Friend the Lord Advocate when we debate the clause on judicial review by the Judicial Committee of the Pricy Council and to ask that they make to the House of Commons an objective statement of the view of the judges of the Judicial Committee.
It may be within the recollection of some hon. Members who assiduously have followed our discussions on the Bill that on Monday 14th November 1977 I asked the Government:
Have the Judicial Committee or the judges been consulted and what is the Judicial Committee's view of the task which has been handed to it? Is it up to the Judicial Committee to decide what might seem at one level to be pure questions of law but what at many other levels may he thought to be the most delicate issues of political decision? What do the judges themselves think about it?"—[Official Report, 14th November 1977; Vol. 938, c. 124.]My hon. Friend the Minister of State, Privy Council Office, replied:there was very little criticism about the control mechanisms, the override provisions, or the use of the Judicial Committee of the Privy Council to deal with questions of vires. My hon. Friend the Member for West Lothian asked about this. The use of the Judicial Committee of the Privy Council is restricted to the matter of the vires of Bills. It is very important to have a legal solution for that problem.To those who say that the. Scottish Assembly will acquire powers, I reply that it cannot acquire powers that tins Parliament has not given it. The United Kingdom Government can put the matter before: he Judicial Committee of the Privy Council, whose decision268will be binding upon them. My hon. Friend the Member for West Lothian asked whether the Judicial Committee of the Privy Council had been consulted. We have ensured that the Judicial Committee and the courts' administrations generally have been informed about the proposals which concern them".—[Official Report, 14th November 1977; Vol. 938, c. 196–197.]I wrote to the Library about this subject and I quote its final answer, which states:You asked whether the Judicial Committee of the Privy Council had ever been consulted on its planned role as final court of reference on devolution issues and, if so, what view was taken.The letter continues, Mrs. Rosamund Coates writing for the Library:I know of no published source on this question and I therefore spoke to the Registrar of the Judicial Committee. He pointed out that the Lord Chancellor, who is head of the judiciary and senior presiding judge of the Judicial Committee, would, in his capacity as Cabinet Minister, have considered the devolution Bills together with other Ministers and would have had the same opportunities to state his views. Not surprisingly the Registrar was not prepared to indicate what the Lord Chancellor's views might have been.To say that the Judicial Committee has been involved is one thing, but what it has commented in reply and what the reply of the judges of the Committee has been may be something totally different.I submit that the gravest issues are involved. No one knows that better than my right hon. Friend the Lord President of the Council after all those eloquent and ferocious speeches about Sir John Donaldson's rôle in politics as a judge of the High Court. It is to my right hon. Friend that we are indebted for the wonderful phrase "the flap-doodle above the framework of the law".
My hon. Friend the Minister of State knows very well that there are delicate issues involved. For my part I do not think it is true that one can, even if one wants to, confine the rôle of the Judicial Committee of the Privy Council purely to questions of law. For example, if an Act of the Assembly had been passed as intra vires by the Judicial Committee of the Privy Council, will it still be open to the citizen to challenge the vires of the Assembly Act in a litigation in which his rights are involved in relation to an Assembly Act? Alternatively, is a private citizen who deems himself to be affected by an Act of the Assembly able to say 269 "I am going to court because I say that what the Assembly has done is ultra vires"?
§ The ChairmanWould the hon. Gentleman be kind enough to come to the point with which he considers the occupant of the Chair should deal?
§ Mr. DalyellThe tradition of Scottish law is built on practical cases. Does not this Bill introduce a potential for legal decisions based on in avente hypothetical cases? If so, what is to be the appeal position? Do civil cases go to the House of Lords and do criminal cases go on appeal to the High Court of Judiciary?
I am sure that no one doubts that my hon. Friend the Minister of State is an extremely able lawyer. That is my opinion of him and it has been for many years. However, I urge that through the usual channels the Attorney-General be asked to make a statement to the House on this type of issue with the full authority of the Lord Chancellor, because the Attorney-General represents the Lord Chancellor in the House. It is the Lord Chancellor to whom the Judicial Committee of the Privy Council reports. This issue should be dealt with by the Law Officers of the Crown speaking with the full sought-out authority of expert advisers and the Lord Chancellor.
§ The ChairmanI am grateful to the hon. Member for giving me prior notice of his point of order. He will understand the reply which I shall give. This is not a matter for the Chair. The Chair has no control over the movement of Ministers. The other details which he raised are matters for argument during the course of the debate.