HC Deb 14 February 1978 vol 944 cc351-73

"If it appears to the Secretary of State that a Bill passed by the Assembly may be incompatible with Community obligations or any other international obligations of the United Kingdom he shall, before certifying his opinion to that effect to the Assembly, pursuant to section 19(1)(b) of this Act, refer the question whether the Bill is so incompatible to the Judicial Committee of the Privy Council for an opinion, and shall only so certify if the Privy Council expresses the opinion that the Bill is so incompatible."—[Mr. Brittan.]

Brought up, and read the First time.

Mr. Brittan

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this we may also take New Clause 5—(Reference to Privy Council following resolution of either House of Parliament)— Where in the Act it is provided that the Secretary of State may refer a question to the Judicial Committee of the Privy Council he shall also so refer the question if so required by a resolution of either House of Parliament. We may also take the following amendments:

No. 10, in Clause 19, page 8, line 12, leave out from "Assembly" to end of line 25 and insert and if he is of opinion that the Bill—

  1. (a) is not within the legislative competence of the Assembly; or
  2. (b) is not compatible with Community obligations or any other international obligations of the United Kingdom, or provides for matters which are or ought to be provided for in legislation passed by Parliament and implementing any such obligation—
he shall refer the question whether the Bill falls within paragraph (a) or paragraph (b) of this subsection to the Judicial Committee of the Privy Council for an opinion". No. 11, in page 8, line 25, at end insert— (1A) If so required by resolution of either House of Parliament the Secretary of State shall refer the question whether the Bill falls within paragraph (a) or paragraph (b) of subsection (1) of this section to the Judicial Committee for an opinion". No. 12, in page 8, leave out lines 26 to 28 and insert— (2) A reference under subsection (1) or subsection (1A) of this section may be confined to the question whether any specified provision of the Bill falls within paragraph (a) or paragraph (b) of subsection (1) of this section". No. 13, in page 8, line 29, leave out "decision" and insert "opinion".

No. 14, in page 8, line 30, at end insert but, in any subsequent proceedings in any court, the court will not be bound by, or be required to follow or apply, the opinion of the Judicial Committee on any such question". No. 15, in page 8, line 31, leave out 'decides' and insert 'is of the opinion that'.

No. 16, in page 8, line 31, leave out is not within the legislative competence of the Assembly" and insert "or any such specified provision falls within paragraph (a) or paragraph (b) of subsection (1) of this section, or if the question that has been referred to the Judicial Committee is still under consideration". No. 17, in page 8, line 33, at end insert— () Subject to the provisions of subsection () of this section, the Secretary of State shall submit the Bill to Her Majesty in Council for approval within 28 days of its passage by the Assembly or of the announcement of the opinion of the Judicial Committee.".

Mr. Brittan

In the Bill it is intended that the Scottish Assembly and the Scottish Executive should not be entitled to act in breach of our European Community or international obligations. As the Bill stands, the Secretary of State is the person who has the sole power to decide what is essentially a legal question. The main purpose of the new clause is to ensure that such questions are to be referred to the Judicial Committee of the Privy Council and are not to be decided by the sole fiat of the Secretary of State, as provided at the moment by Clause 19 of the Bill.

The theme of our whole criticism of the Bill has been that it contains, either on the surface or very close below the surface, an immense potential for conflict between the new devolved institutions to be created in Scotland and the United Kingdom Government and Parliament. Nowhere is the potential for conflict greater than in disagreements as to the extent of the powers to be enjoyed by the Scottish Assembly and Executive, and the question whether in a particular case those powers have been exceeded.

It is absolutely crucial, therefore, that there should be an appropriate mechanism for resolving any disputes whether the Scottish Assembly or the Scottish Executive have acted in excess of the powers allotted to them by the Bill.

The Bill, as we have had occasion to consider in other debates, is in effect a written constitution for Scotland which delimits the powers of the Scottish Assembly and the Scottish Executive, and they can operate only within the powers given by the Bill. But what if there is a dispute whether those powers have been exceeded? How is that to be determined? Initially, the Government wanted many of those questions to be determined on what one might call an administrative or political basis, but subsequently the Government were—in our view, absolutely rightly—persuaded that the basic question of vires, whether the Scottish Assembly or Scottish Executive had acted within or beyond the powers allotted to it, should be determined by the Judicial Committee of the Privy Council, that there should be a judicial determination where possible, but that in any event a judicial determination of whether the Scottish Assembly or the Scottish Executive had exceeded its powers.

9.0 p.m.

I note with some wry irony that, in spite of the well-known hostility of the Lord President to the courts of this country, he managed to overcome that hostility and his objection to the "trigger-happy judiciary"—as he called it—in another context because the argument in favour of a judicial determination on an essentially legal question was so overwhelming.

Obviously the right hon. Gentleman's latent objections to the courts did not disappear totally. There was a sort of vestigial, antediluvian kind of objection to judicial determination of matters of an essentially legal kind which prevented him from allowing the Judicial Committee to consider one important legal question, namely, whether the Scottish Assembly or the Scottish Executive have acted in a way that is not compatible with European Community obligations or any other international obligations of the United Kingdom.

Under Clause 19(1)(b), that legal issue is still a matter that the Secretary of State alone shall certify to the Assembly. If the Secretary of State is of the opinion that there has been a breach of Community obligations, or other international obligations, he makes the certification to that effect and then does not submit the Bill to Her Majesty in Council for her approval. The Judicial Committee has no role in the matter. This House has no role in the matter. In our view there can be no possible justification for that whatsoever.

If the Judicial Committee shall consider whether a Bill is within the legislative competence of the Assembly, where it is a question of the construction of the statute, why can it not also be allowed to consider whether the Bill is compatible with Community obligations or any other international obligations of the United Kingdom?

By definition, Community obligations are legal obligations. They are obligations that, as a matter of international law, we have entered into with our Community partners. By definition, international obligations are legal obligations, because under international law they are obligations that we had entered into with other sovereign countries. One might have thought that the question whether the legislation of a Scottish Assembly conflicts with our international obligations as a legal issue is one peculiarly suitable for determination by the Judicial Committee.

With regard to legality, the Secretary of State's determination is not the end of the matter. In any event it can reach the courts, although not the courts of this country. If there is a breach of a Community obligation it is likely to reach the European Community's own court. If there is a breach of the other international obligations it could reach the International Court of Justice at the Hague.

Mr. Gordon Wilson

rose—

Mr. Brittan

I shall give way in a moment.

Therefore, the determination by the Secretary of State of this question does not rule out the courts altogether. It merely means that no British court is to be allowed to consider the matter. If the Secretary of State has got it wrong, and allows the Assembly to pass a law which is in breach of the Community obligations, he could still be taken to the European Community Court. With regard to international obligations, there may in certain circumstances be the possibility of his being taken to the International Court of Justice. It seems strangely illogical that on what is a legal matter at least as clear as a question of general vires in terms of the Bill's provisions, there should be no reference of the matter to the Judicial Committee of the Privy Council.

Mr. Gordon Wilson

Is not the hon. Gentleman in danger of defeating his own analysis of the situation? He said that if the Scottish Assembly or the Scottish Executive exceeded the obligations laid down under the Treaty of Rome or, for that matter, any other Community obligation, it could be taken to the European Court. Would it not have been better to present an amendment indicating that to decide these matters there would be an application to the European Court rather than to the Privy Council, which might come to a decision which in itself was capable of being taken further to the European Court?

Mr. Brittan

I should have no objection in principle to approaching it in that way. However, as the Government have elected for the Judicial Committee to be the legal body for considering vires questions, it seems to me that it would be simpler to retain the Judicial Committee, subject to any question of going to the European Court afterwards. But I have no objection in principle to approaching it in that way, and, if the Government said that they would propose an alternative approach by an amendment of that kind, we should want to listen very carefully to what they suggested.

But that is not what the Government have suggested. Instead, in the way that the Bill left Committee, there was simply the say-so of the Secretary of State. He holds himself up on an essentially legal question and decides whether there has been a breach of a Community obligation or any other international obligation. That seems to be a thoroughly objectionable approach and a thoroughly objectionable way of dealing with the situation.

When we discussed the matter at an earlier stage, one of the arguments advanced in answer to the suggestion that there should be a reference to the Judicial Committee on a matter of this kind was the reference in Clause 19(1)(b) not only to Community obligations and to any other international obligations but also to a Bill passed by the Scottish Assembly providing for matters which were or ought to be provided for in legislation passed by Parliament and implementing any such obligation.

Taking the argument put forward by the Government objecting to referring a matter of that kind to the Judicial Committee, we have deliberately omitted reference to that in our clause, and we are left simply with the straight question of Community obligations or other international obligations, which we thought should be treated as all other vires matters and be referred to the Judicial Committee if the Secretary of State considered that the Assembly had been in breach. That is the basis of New Clause 4, which is the most important of the new clauses and amendments which we are considering in this group.

However, let me refer briefly to one or two of the other amendments. New Clause 5 provides: Where in the Act it is provided that the Secretary of State may refer a question to the Judicial Committee of the Privy Council he shall also so refer the question if so required by a resolution of either House of Parliament. As the House will recall, in the Bill as it stands only the Secretary of State can, in advance of the passage of the Scottish Assembly Bill, refer a matter to the Judicial Committee if he thinks that it may be in excess of the powers given by the Scotland Bill to the Scottish Assembly. No one else can refer a matter to the Judicial Committee. My right hon. and hon. Friends and I cannot see why that power should be given exclusively to the Secretary of State.

I can see why every person in the land should not be allowed to refer a matter to the Judicial Committee, because obviously no one would want a trivial reference which someone might wish to make for all sorts of reasons and which plainly would delay matters in an unacceptable way. But surely the House of Commons, if a resolution were passed, would be acting in a responsible way. The House of Commons would be reasonably entitled to expect that, if it considered that there was a doubt about the legality of a piece of Assembly legislation, it should be able to refer the matter to the Judicial Committee of the Privy Council.

I would suggest to the Government that this is not such a dangerous thing, bearing in mind that the Secretary of State of the day is likely to have a certain influence with the House of Commons. If, none the less, the House of Commons or the House of Lords decides by resolution to refer the matter to the Judicial Com- mittee, we suggest that this is reasonable and should be done.

Amendment No. 14 says: In any subsequent proceedings in any court, the court will not be bound by, or he required to follow or apply, the opinion of the Judicial Committee on any such question. This arises because in our earlier debates it became clear that as a result of the new schedule the Government have introduced, after a Scottish Assembly Bill has been passed, whether or not it has gone to the Judicial Committee, it will be still possible in subsequent litigation for it to be contended that the Scottish Assembly exceeded its powers and that the matter is therefore ultra vires.

That could be raised in various ways in different courts and in different proceedings. What is not clear is whether the court in considering the matter is bound by the decision of the Judicial Committee if the Bill is referred to it in advance. The purpose of the amendment is to make clear what the Government believe to be the position—that subsequent courts are not bound by the decision of the Judicial Committee that the Bill was within the powers of the Assembly.

The reason for that is that there may be circumstances in which, as an abstract question, it looks as if the Bill which the Scottish Assembly has passed is all right, and is within the powers conferred on the Assembly by the Scotland Bill. However, when one looks in any particular case at the impact of the Bill, the position may appear different. Therefore it is right, if there is a subsequent judicial view, that the Judicial Committee's decision may not be binding in these circumstances.

Amendment No. 17 says: Subject to the provisions of subsection 4 of this section, the Secretary of State shall submit the Bill to Her Majesty in Council for approval within 28 days of its passage by the Assembly or of the announcement of the opinion of the Judicial Committee. I hope that the Government will not oppose that amendment. As the Bill stands I do not see that there is any obligation on the Government actually to present a Scottish Assembly Act for approval to Her Majesty in Council even if the Judicial Committee has not been asked to consider it, or if it has considered the matter and has come to the conclusion that all is well. That is a comparatively minor matter.

The most important matter in this group of amendments is the suggestion that any question of a breach of international and Community obligations should be referred to the Judicial Committee. The purpose of that is exactly the same as references to the Judicial Committee of ordinary vires questions. It would be far more acceptable politically for the Judicial Committee to decide the matter of that kind than for the Secretary of State to do so.

We must envisage a situation in which the Scottish Assembly has passed an Act and the Secretary of State says that it is not to come into law because he sees it as a breach of Community and international obligations. Surely that is a situation redolent of conflict. It will be much more acceptable to the people of Scotland that any case of that kind should be looked at objectively by the Judicial Committee. That Committee will look at it as a matter of law and not as a mixture of law and politics.

9.15 p.m.

Mr. Dalyell

There are two issues on which I wish to comment. First, if the Assembly is set up, we should not imagine that the people in that Assembly, either Ministers or Assemblymen, will be content not to have direct contact with European institutions.

Only today the Secretary of the Scottish Labour Party, Mrs. Helen Liddell, paid a visit to Brussels and Strasbourg and on Radio Scotland expressed the need for direct communication between Scotland and the Community institutions. Once an Assembly is established, many people will have the same view as Mrs. Liddell. It is natural that, if there is to be a subordinate Parliament, that Parliament will want direct links with the institutions of the Community. I remember a protracted correspondence on this topic in The Scotsman in which the hon. Member for Clackmannan and East Stirlingshire (Mr. Reid), who is so frequently absent from these debates, took part. I have always conceded that the situation might be different in relation to a separate State.

It is common ground that the institutions of the Community would wish to deal with the United Kingdom Government and with an Assembly or any of its representatives. That is a fact of life. The Scottish regions are a different matter, and I would welcome their having direct relations with Brussels. But if the institutions of the Community wish to have direct relations with a Scottish Assembly they would have to go very much further than they do now in relation to the German Länder. There would be great problems for the regions of France and, if the Community is enlarged, and Catalonia and the Basque areas are added, it would create great complications for Brussels. At present this is perhaps an unrealistic line of argument.

The second issue on which I wish to comment before going on to the main body of my speech relates to the Judicial Committee of the Privy Council. Those of us who took part in earlier debates are by no means persuaded that the Judicial Committee will not be sucked into the mire of controversial political decision making.

One reason why this Bill should go to the House of Lords is that I hope there will be a full discussion there in which the Law Lords will participate. I refer to people such as Lord Diplock, Lord Denning. Lord Gardiner, Lord Dilhorne. Lord Edmund-Davies and other members of the Judicial Committee of the Privy Council who might be asked to serve on any such committee. It is high time that we had an opinion from those Law Lords about the role which they are being asked to undertake. I need not remind my right hon. Friend the Lord President of the Council of what he said when the hon. Member for Dumfries (Mr. Monro) dealt with a matter involving Mr. Justice Donaldson, as he then was.

Plainly there are problems involved. Once again we come up against a situation in which we realise that, although we have discussed the problems, we have not solved them.

I understand that from a constitutional point of view devolution is a delegation of power, but politically this Bill will divide legislative power between London and Edinburgh in a manner that is not wholly uncharacteristic of federal States.

Mr. Budgen

Before the hon. Gentleman leaves the subject of the Law Lords, will he comment on recent reports that Lord Kilbrandon has been campaigning on behalf of those who wish the Bill to be accepted in the referendum? Will the hon. Gentleman comment upon the possibility of Lord Kilbrandon being eligible to sit on a body of judicial review?

Sir David Renton

He is eligible.

Mr. Budgen

Plainly it is an extraordinary anomaly, if Lord Kilbrandon is so eligible, that he should be behaving in this way.

Mr. Dalyell

I understand that, technically, Lord Kilbrandon is eligible. I have thought a great deal about this matter and, in fairness to Lord Kilbrandon, it must be said that, technically, he has every right to do what he has done and to become the head of the campaign for the "Yes" vote because he has retired. No one can say that, legally, he has no right to do that.

On the other hand, the hon. Gentleman's question raises the issue whether it is wise and proper for an ex-High Court judge to enter the maelstrom of politics and I would question that even if he had set himself up to be head of any of the "No" vote campaigns.

Lord Kilbrandon's action dispels any fond belief that anyone may have had that High Court judges do not entertain many of the political prejudices of the rest of us. Did the Minister of State say something? Would he like to intervene?

Mr. John Smith

Certainly not.

Mr. Dalyell

Lord Kilbrandon has confirmed what we have always known, namely, that High Court judges, like the rest of us, have beliefs one way or the other and it is inconceivable that when Lord Kilbrandon took over from Lord Crowther-Hunt at the head of his Commission he did not start with some very strong feelings. I am not saying that it is proper or improper to have those feelings. Lord Kilbrandon is human like the rest of us, but we must drop the pretence that High Court judges are on a different and higher plane from we mortals on this sort of issue.

Mr. Budgen

Bearing in mind that Lord Kilbrandon is not merely a Scottish judge but a retired Lord of Appeal in Ordinary and is still eligible to sit in the House of Lords, is the hon. Gentleman aware that retired Law Lords are occasionally recalled to sit in another place? As Lord Kilbrandon is eligible and might be recalled, is not the only way he could deal with such a situation to say that in no circumstances would he again sit in a judicial capacity?

Mr. Dalyell

I do not want to be dragged into too personal a discussion. The Government of the day would probably not invite Lord Kilbrandon to sit on the Judicial Committee of the Privy Council.

If the new arrangements work as intended, the Scottish Assembly will be the supreme authority in Scotland for domestic affairs—it will be the Scottish Parliament. The normal convention will be that Westminster should cease to legislate for Scotland or to intervene in Scotland's internal affairs. Sir Ivor Jennings went so far as to argue that it would have been "unconstitutional" for Westminster to have legislated for Northern Ireland in areas of transferred responsibility without the consent of Stormont.

It is in constitutional theory only, then, that full legislative power remains with London and the unitary State is preserved. In practice, political power is transferred and cannot, except under pathological circumstances, be recovered. The formal assertion of parliamentary supremacy as the supreme authority to make laws for the United Kingdom or any part of it in the now deleted Clause 1 of the Bill becomes an empty assertion because it will no longer be accompanied by a real political supremacy.

In Scotland at least the supremacy of Parliament is bound to bear a different and more attenuated meaning after the Assembly is set up, if it is set up. For Westminster, instead of enjoying a regular and continuous exercise of supremacy, will possess merely a nebulous right to supervise the Assembly. Political authority, however, depends upon its regular and continuous exercise; it is not the mere incursion of legislative authority once every 10 years, 15 years or 20 years. For in these circumstances the assertion of supremacy would become so empty that it could eventually be given effect only by what would in reality be a revolutionary act. Thus, Westminster's supremacy in Scotland, which was once a real power to make laws affecting Scotland's domestic affairs, now becomes the power to supervise another legislative body that makes law over a wide area of public policy. The political reality of a supreme law-making authority becomes nothing more than the right to put an end to the Scottish Assembly by what would in reality be a revolutionary act.

The Scotland Bill will thus establish, if not a federal constitution regulating the relationship between England and Scotland, a quasi-federal form of government. It will establish a de facto division of powers between England and Scotland. Moreover, it buttresses this division of powers through the agency of an embryonic constitutional court in the form of the Judicial Committee of the Privy Council. I believe that it is an embryonic constitutional court that we are willy-nilly setting up, whether we know it or whether we do not. For it is this judicial body that will determine whether a Bill passed by the Assembly lies within its legislative competence. It will be able to decide not only upon the construction of a Bill—the normal role of the courts in the United Kingdom—but upon its validity as legislation. In other words, the Judicial Committee will be exercising the function of judicial review, and this is a novel function, always excepting the Northern Ireland experience, for a United Kingdom court to exercise.

The scope of judicial review will be limited since it will involve only the review of Scottish legislation and not Westminster's, whereas the United States Supreme Court can review the legislation both of the Federal Government and of the States. Nevertheless, in certain circumstances, this distinction may be less important than it appears. For example, the Judicial Committee may have to ask iitself whether a Scottish Bill is an instance of legislation relating to health, which is a devolved service, or of drugs or social security, which are not devolved. That is just the sort of question that judiciaries in federal States are accustomed to consider.

Sir David Renton

On a point of order, Mr. Speaker. I wonder whether the hon. Member for West Lothian (Mr. Dalyell) will help us by telling us from what document he is quoting.

Mr. Dalyell

No, I am not prepared to do so.

Mr. John Smith

Oh.

Mr. Dalyell

I am not prepared to do so—[HON. MEMBERS: "Why not?"] I tell the House frankly that I have been given the document as a statement of a legal point of view, but it is not attributable and I shall honour that understanding. I am putting an argument that I consider to be highly relevant.

The Lord Advocate (Mr. Ronald King Murray)

Speak with your own voice.

Mr. Dalyell

This is one of the difficulties, Mr. Speaker. I am told by my right hon. and learned Friend the Lord Advocate to speak with my own voice. I think that the House will concede that for 35 days I have done little else than speak with my own voice.

The Lord Advocate

I withdraw that comment.

Mr. Dalyell

I am not a lawyer, but I read the document carefully because with a subject as difficult as the Judicial Committee of the Privy Council, certain questions should be asked. If there had been a Labour Back-Bench lawyer, it would have been more proper that these questions should have been asked by him.

9.30 p.m.

The question that I ask is whether, by using the Judicial Committee of the Privy Council in this way, we are setting up a quasi-constitutional court. If the right hon. and learned Member for Huntingdonshire (Sir D. Renton) believes that I should not quote carefully thought-out documents, I stand rebuked. But it is a little difficult, when discussing matters such as these, to suggest that a non-lawyer, on the important matter of the Judicial Committee of the Privy Council and in order to save the time of the House—I choose my words with the utmost care—should not quote from documents.

I leave it at that. I think that I am justified in asking whether we are setting up a quasi-judicial court in this country by this particular use of the Judicial Committee of the Privy Council.

Sir David Renton

I think that for the first time throughout our long debates on the Scotland Bill I find myself in disagreement with the hon. Member for West Lothian (Mr. Dalyell). I do not in any way dispute his motives, his sincerity or even his method. However, when he was quoting at great length from an obviously carefully prepared document, with the contents of which I am in the main in disagreement, I could not help thinking that it would either add to or diminish the weight of his argument if he told us the source of the document. It is common practice in the House of Commons, and I was merely resorting to it.

I appreciate the difficulty in which the hon. Gentleman finds himself in that there is no Labour Back-Bench lawyer with whom he could have conferred about this matter. But any of my hon. Friends at the Scottish Bar would, I am sure, have been only too glad to discuss the matter with him.

As a member of the English Bar, I should like to do my poor best to answer some of the questions posed by the hon. Member for West Lothian. He referred to Lord Kilbrandon. I think that I should put on record—I hope accurately—Lord Kilbrandon's present position. Having been a distinguished Lord of Session, Lord Kilbrandon became a Lord of Appeal and since his retirement he has been eligible to be called to serve as a member of the Judicial Committee of the Privy Council, for two reasons: first, because he is a Privy Councillor and, secondly, because he has held high judicial office.

Theoretically, he could be called in to decide any question upon which it fell to the Judicial Committee to give an opinion if and when the Bill became law and were implemented. Knowing Lord Kilbrandon as well as I do, I am quite certain that if he found himself in that position, his own political instincts would be cast aside and he would act with complete intellectual integrity as a lawyer and decide the issue from a purely legal point of view.

Having said that, and bearing in mind that it might not be essential to call him in to serve at a particular meeting of the Judicial Committee of the Privy Council at which such an issue might arise, I should have thought that those who arrange these matters would probably ensure that he did not sit on the Judicial Committee on such an occasion. I hope that we may leave the matter there and that that will assure the hon. Member for West Lothian.

Mr. Dalyell

I did not raise the subject of Lord Kilbrandon in the first place.

Sir D. Renton

The hon. Member referred to Lord Kilbrandon at some length and I thought it right to reply.

I turn to the suggestion that in using the services of the Privy Council, as the Government propose, Parliament would be setting up a constitutional court. The hon. Member for West Lothian implies that it would be a new type of constitutional court. There would be nothing new about it. The Privy Council has been deciding constitutional matters which affect the Commonwealth and some of the internal affairs of this country—I am tempted to say since the beginning of time but it is not quite as long ago as Adam and Eve—for, I hazard a guess, the last 150 years. Its competence to decide these matters is undoubted.

In view of the tremendous reputation that the Privy Council has acquired throughout the Commonwealth, even in those countries which no longer accept its jurisdiction, I rejoice at the prospect that the Judicial Committee of the Privy Council might have to decide matters involving the European Economic Community and Community laws and their effect upon devolution for Scotland, if such should happen.

This is a rather felicitous example—one of the few that have arisen—of the two sides in the House of Commons coming together to hammer out the right solution. I recollect, as other hon. Members no doubt will, that when the Government produced the White Paper, which was the foundation of this Bill, in the winter of 1975 and which was debated in January 1976, it was my right hon. Friend the Leader of the Opposition who, in a constructive way, said that any question of vires should be decided not by a Minister, as was the proposition then, but by the Judicial Committee of the Privy Council. The Government accepted that proposition and it is to be found, to the extent that it has been accepted, in Clause 19.

In New Clauses 4 and 5 and Amendments Nos. 10 and 17 my right hon. and hon. Friends are carrying that concept a step further. I think that they are right to do so. I cannot imagine any body other than the Judicial Committee which would be more suitable to decide, as New Clause 4 proposes, the incompatibility of a Bill passed by the Assembly with Community obligations or any other international obligations. It is an extension of the kind of issue that it has had to decide in the past. It is not beyond its capability. It is well within its tradition and its broad-minded approach to jurisprudence all over the world.

New Clause 5 has the advantage that it does not merely leave it to the Secretary of State to decide whether a matter should be referred to the Privy Council but provides that Parliament shall have the opportunity of doing so. Surely that is right. It would be much too restrictive to leave it to the discretion of the individual Minister and deprive Parliament of this opportunity. It is to be by means of a resolution of the House—and that means an affirmative resolution.

I feel that the Government should welcome these new clauses and amendments. They should generously acknowledge that a concept that was offered by my right hon. Friend the Leader of the Opposition and accepted by the Government should be carried the stages further that have been proposed so clearly by my hon. Friend the Member for Cleveland and Whitby. We hope that there will be a happy outcome to this debate.

Mr. Ivor Stanbrook (Orpington)

It is curious that under Clause 19(1)(a) questions of the legislative competence of the Assembly should be referred to a court, but questions of compatibility with international obligations should not. That is such a self-evident query that I hope that the Minister of State, or perhaps the Lord Advocate, because he will be even more welcome, will be able to explain why this distinction has been drawn. If anything could be said to be suitable for decision by an independent judicial body it must be something like external legal obligations.

The Bill is proposing that there should be a ministerial decision on a question of law. That is what the Government seem to be out to achieve by rejecting, as I imagine they will, the new clause. This is a serious matter, because the Minister will thereby be usurping the function of a court in determining a question of this kind.

The curious thing is that the Government—indeed, in this respect most governments—are not reluctant to use judges to pick their hot potatoes out of the fire on political questions. Only too often the Government have found it convenient to dispose of a thorny and difficult political question by referring the matter to a judge, to a court or to some kind of committee of inquiry. But they are not always successful in ridding themselves of an embarrassing problem in doing so. When the Scarman Inquiry reported on the Grunwick affair that was a notable failure in this respect and the Government did not get off the hook.

It has been a well-honoured tradition for the Government of the day to refer questions of political judgment for judicial decision because of the virtues of the judicial approach. However, the Government seem to be rejecting that approach in this case, even though it has been used so often in the past. Let us consider, for example, the use of the Donovan Commission which, headed by a distinguished judge, was able to survey the whole of trade union law and the state of labour relations generally. Many a judge has been brought into solve questions of political importance—and almost exclusively political importance.

At present, a distinguished judge is looking at the question—no law is involved—of police pay and conditions. The reason is that this will eventually get the Government off the hook. When Lord Edmund-Davies makes his recommendations, the Government will be able to say "Here was an unprejudiced, cool, objective judicial assessment of this problem, and we are not partisan. We are not politically prejudiced, because everybody knows that this judge is above all such considerations and is looking at the problem objectively, and what he says"—inevitably they had to accept his report beforehand—"will be accepted". That is a very honourable tradition.

9.45 p.m.

I remind the House that this tradition is a long one. For example, it calls to mind the passing of the Extradition Act 1870 which first put into legislative form, in a permanent sense, the idea of political asylum. It was necessary to put into the Bill the concept of the exception from extradition of offences of a political character. One would have thought in that context that Parliament would have inserted into the Bill a definition of what are offences of a political character for which extradition was not possible, in honouring the tradition of political asylum. Although a Select Committee of this House wrestled with the problem for many days and included such great luminaries as John Stuart Mill, at the end of the day it could not come up with any definition of what constituted political offences or an offence of a political character.

The Attorney-General of the day, moving the Second Reading of the Bill, said that the question of definition of political offences was as difficult as that of the Ulster Custom. I am sure that my hon. Friend the Member for Mid-Ulster (Mr. Dunlop) will know something about that. I certainly do not, but it must have been a difficult problem at the time. The question, the Attorney-General said, was therefore left to the courts to decide. That was the way out for the Government of 1870 on this purely political problem—to say to the courts that where the offence was of a political character extradition from England should not take place.

We have a similar situation occurring today from time to time. But the Government have reversed this provision and here they are saying, on this thorny question of enforcement of international obligations vis-à-vis the Scottish Assembly, that the decision of the Minister on a point of law shall be final. There is no question of reference to a court of law for determination of this point of law. My hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) is right to say that we must insert this judicial element into the phraseology of the Bill. If we do not, we shall continue with the old problem of the discretionary powers of Ministers.

We know how Ministers in this Government have abused those powers and continue to do so. The judges have said so. It needs only one case to come before the judges for the law to be established that the Government may not act in any such manner at all under the law of this country.

New Clause 5 asserts the supremacy of Parliament, a principle which we continually say we stand by but which, almost every day in this Parliament, we are eroding, particularly with this Bill. We can well be suspicious of the use of ministerial discretion in view of the history of this Government. It may be that in this clause we are giving a Minister the power to do something which, if it were put to the House, would not be approved. It is perfectly proper in law and as an exercise of the supermacy of Parliament that decisions of this kind should be overseen or at least should be subject to the power of either House of Parliament deciding that the matter should be referred for judicial decision.

On those two points my hon. Friend the Member for Cleveland and Whitby is absolutely right. When the Government consider the import and significance of the clause I am sure that they will accept that.

Mr. Gow

The new clause moved by my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) and the amendments seek to bring into the Bill the safeguard of the Judicial Committee of the Privy Council. If ever there were a time when we needed to interpose a safeguard between the Executive and the people, that time is now.

You might think, Mr. Speaker, as you glance to your right at the serried ranks of ministerial supporters upon the Back Benches, that you were dealing with a Government that had a great respect for the rule of law. If you look, Mr. Speaker, at the Minister of State and the Lord Advocate, who is gracing the House with his presence on one of the rare occasions that he has done so during the passage of the Bill, you might think that you were looking at benign, friendly Ministers who were always faithful to the rule of law. But any such suspicion that you might have, Mr. Speaker, would unhappily be dashed if you examined the record of Her Majesty's Ministers over the past four years, for they cannot be relied upon to remain failthful to the rule of law.

The Under-Secretary of State for Industry, who has just joined the Treasury Bench, is not immune to criticism in this regard, because the Department of Industry, like other Departments, is exercising ministerial discretion not in accordance with the rule of law but in accordance with the political prejudices of the Treasury Bench. I see the Lord Commissioner—no less—of the Treasury seated upon the Treasury Bench. He and I have the good fortune to be serving on the Committee dealing with the Transport Bill. It could not be said of the Government that their discretionary powers are exercised always in accordance with the rule of law and never in accordance with their own political prejudices. That is why it is so important that the new clause and the amendments suggested by my hon. Friends should seek to interpose between the Executive and the people a body which all of us know to be wholly independent, the Judicial Committee of the Privy Council.

Even the Lord Advocate, chattering as he is to one of his hon. Friends, has made no attack upon the Judicial Committee of the Privy Council. It is because we are so doubtful about the objectivity of the judgment of Her Majesty's Ministers that we regard the new clause and the amendments as being so important.

The memory of occupants of the Chair is sometimes discretionary, but it is important to remind the House of the affair of the television licences, when a Minister of the Crown, the Home Secretary, sought to exercise, and purported to exercise, a power in relation to television licences which the High Court eventually found to be wholly unlawful. The same thing happened in the Tameside case. My hon. Friend the Member for Melton (Mr. Latham), one of the heroes of this Parliament, rightly reminds the House that we do not stop at Tameside. We do not stop at television licences. There is a continuing element to which he has rightly draw the attention of the House.

Sir Frederic Bennett (Torbay)

While my hon. Friend is on this very important point, would he care to place on the record for the first time the fact that since the Government came to office in 1974 there have been more judicial decisions that Ministers have acted ultra vires than in the whole preceding quarter century?

Mr. Gow

If he catches your eye, Mr. Speaker, my hon. Friend will be able to develop that point at greater length. I was making a more modest criticism of the Government. I was not going back over a quarter of a century but was referring only to the past four years. That is enough. We see the growing tendency of Ministers to act unconstitutionally, unlawfully, and not in accordance with the rule of law but in order to advance what they consider to be the Labour Party's political interests.

That is why the existing Clause 19 is not enough and why there is an overriding need for the new clause and the amendments. There is a growing awareness outside the House that the arrogance of Ministers of the Crown needs to be curtailed, and that the only safeguard for the people is the independent judiciary.

Therefore, I support the new clause and the amendments. I am confident that the House, as it has once before this evening, will overthrow the arrogance of the Government Front Bench.

Mr. Michael Latham (Melton)

It is particularly important that we should have on the Government Front Bench a Foreign Office Minister, the Under-Secretary of State for Foreign and Commonwealth Affairs. He has not so far wanted to take part in the debate, but there is no doubt plenty of time for him to do so.

The hon. Gentleman's presence is important because the proposals in Clause 19(1)(b) represent an attitude toward diplomacy and international obligations which is already becoming obsolete. It is the attitude of what I think Louis XIV called the secrét du roi, the idea that foreign affairs and diplomacy are entirely matters for the Executive, and that Parliament's responsibility is to look the other way, not to discuss these matters and certainly not to be involved in the details of diplomacy.

Mr. Gow

Where is the Foreign Secretary?

Mr. Latham

Perhaps I should not intrude upon private grief.

Mr. Gow

Perhaps the right hon. Gentleman is in Mozambique.

Mr. Latham

No. He was in Terrace Room A, earlier this evening. If he has returned from Mozambique, he has come back very quickly.

New Clause 5 seems to me a very reasonable balance to new Clause 4. There is an important distinction between the role of the Privy Council in surveying Community or other international obligations and the position of this House. Diplomacy is not, in modern thinking, solely matters for the Executive, to be discussed behind closed doors. It is also a matter to be discussed in detail in this House.

Let us take as an example the present position in the Middle East. I shall not try your patience at great length, Mr. Speaker. I am merely making an allusion in order to illustrate my point. The problems in the Middle East need to be brought out clearly, because there are strongly felt issues on both sides. The idea that one can sort out the Middle East behind closed doors, ignoring the real wishes of the people, is ludicrous. One cannot have effective participation in that way.

The same applies to all our international obligations. The idea that one can exclude the House in examining whether international obligations are involved, in a matter as important as the devolution of Government to Scotland, is totally out of accord with modern thinking on participation.

It being Ten o'clock, the debate stood adjourned.