LEGISLATIVE COMPETENCE OF ASSEMBLY (Hansard, 29 November 1977)

§ Mr. Teddy Taylor
This clause sets out the arrangements for the legislative competence of the Assembly. It states: A Scottish Assembly Act shall be law only if or to the extent that it is within the legislative competence of the Assembly. Schedule 2 of the Bill sets out the arrangements for working out what is within the legislative competence of the Assembly.
What happens if there is an error? We know that mistakes can happen. What would happen if an Assembly Act were passed, approved and accepted as being within the legislative competence of the Assembly and later, through the operation of particular powers, it was discovered that part of that Act was not within the legislative competence of the Assembly? Can the Government do anything at a later stage after the Bill has received its Royal Assent?
The Minister might say that Parliament could pass an Act to deal with the 386 situation. Would that be the only way in which the Government could do something about it? Let us suppose that the Assembly passes a housing Act with 10 sections. Let us suppose that it is believed to be within the legislative competence of the Assembly but that, perhaps as a result of judicial determination or an action against a local authority, it later appears to the Government that one section is not within the legislative competence of the Assembly. Can the Government do anything about it? The answer might be to present an Act in this House to overturn the provisions of that section. Is that the only safeguard or is there some other restrospective action that would put right the error?
My second question is about arrangements that might be made if only part of an Assembly Act is outwith the legislative competence of the Assembly. Is it possible to refer part of the Bill to the Judicial Committee? One could say that only one section should be referred and the Committee may report back that that particular section is outwith the legislative competence of the Assembly.
The end of Clause 19(2) states: references in this Act to a Bill within the legislative competence of the Assembly are references to a Bill which, if it became a Scottish Assembly Act, would be wholly within the legislative competence of the Assembly. 387 What happens if only part of the Act is found to be outwith the legislative cornpehmce of the Assembly? Does the rest of the Act go forward or would the Assembly have to start again?
My third question is brief. What is the provision for hybridity, which is a complex House of Commons issue? Would the question of hybridity of Assembly legislation be considered by the Minister in relation to legislative competence or by the Judicial Committee? What action is taken by the Minister on legislative competence if a Bill proves to be hybrid?

§ Mr. John Smith
The hon. Gentleman has asked me what happens in the case of a mistake. It is always difficult to anticipate mistakes, but the hon. Member for Glasgow, Cathcart (Mr. Taylor) will notice that the clause says: A Scottish Assembly Act shall be law only if or to the extent that it is within the legislative competence of the Assembly. What we are doing is restricting the power of the Scottish Assembly to legislate to matters within its competence. If there is a question about the competence of the Assembly, no doubt the Assembly will be advised by its own legal advisers as to what is within its competence. Then the Secretary of State is under an obligation to consider the Bill under Clause 20, and if he is of the opinion that it is outwith the Assembly's competence, it will go to the Judicial Committee of the Privy Council for determination.
If, after that process of scrutiny has been gone through, there remains a provision which is, in the opinion of perhaps a citizen, outwith the legislative competence, there is provision later in the Bill for post-Assent challenge in the courts. That would be open to a citizen. But if the United Kingdom Government fail to operate the provision under Clause 20 and wish to correct the matter, they will be able to legislate about it, because this Parliament remains sovereign. We have already gone through that matter before.

§ Mr. Graham Page (Crosby)
Would it then be necessary to have an indemnity Act to indemnify those who had acted under an invalid Act of the Scottish Assembly?

§ Mr. Smith
Whether it would be necessary would be a matter that would have to be considered at the time. We thought it right that there should be a power of post-Assent challenge, because the Acts of the Assembly are not sovereign. To that extent it seemed right to make that provision. All these provisions have to be operated by human beings, and we must make the best provisions that we can. We think that we have provided reasonable checks by very precise definitions of the competence of the Assembly by the Bill and for the mechanisms of control by override and the scrutinies of vires.

§ Mr. Powell
Would it follow from that that on the challenge of a citizen the view taken by the Judicial Committee could be overthrown by the ordinary courts?

§ Mr. Smith
We shall discuss these matters when we come to the provisions about the post-Assent challenge, but the ordinary courts will make their own determination of the matters raised before them under the Bill. No doubt they will take into account the views of the Judicial Committee when they give their determination on the matter if the Judicial Committee has made a determination on the matter before the ordinary courts.
I think that the number of matters that will be referred to the Judicial Committee will be very small. One does not expect the Assembly to wish to legislate on matters clearly beyond its competence, because it would be checked by the Judicial Committee. The existence of this checking provision is probably a salutary way of reminding the Assembly that it operates within certain fields of competence.
I would not expect there to be many references to the Judicial Commitee of the Privy Council, because there would be discussions between the United Kingdom Government and the Assembly, and the United Kingdom Government would be aware of what the Assembly wished to legislate about and would no doubt seek, if they took the view that the Assembly was acting without the vires, to point that out to it informally. It is only if there is an extensive and severe disagreement about a provision that has some ambiguity about it that 389 an issue would be referred to the Judicial Committee.
The hon. Gentleman mentioned referring part of the Bill. That is quite true. If the Secretary of State sees that there is one provision within the Bill, he does not have to refer the whole Bill. He can refer the part of it that he thinks is ultra vires to the Assembly. In the event of there being determination by the Judicial Committee that it was ultra vires the Bill, one goes back to the Scottish Assembly which considers the matter further, and it is then put forward again by the Secretary of State for Royal Assent.
The hon. Gentleman mentioned hybridity. This has a certain topicality. I am not sure what the answer to that point is. It is rather complicated and perhaps involves the rules for the future that the Scottish Assembly might establish for its own procedure.
9.30 p.m.
Hybridity is a procedural matter and when it arises here the House considers it as a matter of procedure. The general line in the Bill is that the Assembly itself will decide a great deal of its procedure There is some difference in this respect between the Scotland and Wales Bill, and the shorter provision in the Scotland Bill. We do not know what procedure the Scottish Assembly will follow for Bills, and it is impossible for me to answer what its rules on hybridity may be. We cannot specify them now.
I do not know whether the hon. Gentleman wants to make specific rules on hybridity for application in the Assembly, but I repeat that the Assembly itself will determine its own procedure by its own standing orders. I believe that to be the right attitude. In writing its rules no doubt it will look at this House's rules on hybridity and consider whether to follow them. I do not think that I can go much further on that question now.

§ Mr. Teddy Taylor
I am grateful for what the hon. Gentleman has said on these matters, in particular about the question of error. He said that he did not want to take the question of hybridity much further, but it is important. We shall have an opportunity to return to the subject later.
390 Has the hon. Gentleman any ideas about private and public legislation? Does he take the view that the Assembly in its legislative competence will be able to make its own rules on private and public legislation? This is important. It might decide not even to draw a dividing line between the two. Does the hon. Gentleman say that the question of whether there should be private legislation within the legislative competence would be a matter for the Assembly? Or does he contemplate that the Assembly would not have the power to pass private legislation?
I hope that the Minister will be kind enough later to answer the point, which I understand is detailed, about hybridity, but can he say something now about private legislation? Does he consider that the Assembly will itself determine whether it divides Bills into those which are private legislation and those which are public, or that it will not be a legislative forum for private legislation?

§ Mr. Smith
There are provisions later in the Bill relating to private legislation, and I will bear the hon. Gentleman's comments in mind so that we can give him as detailed an answer as possible then.

§ Mr. Dalyell
On a point of order, Mr. Murton. It will be within your recollection that at 3.30 this afternoon, on a point of order, I asked, among other things, about the question of appeals. I do not know whether this is the right moment to raise the matter. May I ask whether for criminal cases the final appeal is to the High Court of Justiciary and in civil cases to the House of Lords? I thought that the matter came under Clause 20, but it seems that it is being dealt with now.

§ Mr. Smith
Further to that point of order, Mr. Murton. We have to try to keep the clauses in separate compartments, and the matter raised by my hon. Friend the Member for West Lothian (Mr. Dalyell) does not relate to Clause 19. I shall be happy to answer his questions at the appropriate point.