HC Deb 18 January 1978 vol 942 cc578-601
Mr. Leon Brittan (Cleveland and Whitby)

I beg to move Amendment No. 587, in page 71, line 35, at end insert— '2A. Where it has been determined on the consideration of a devolution issue in any legal proceedings that a Scottish Assembly Act, or any provision of a Scottish Assembly Act is not within the legislative competence of the Assembly or that a matter with respect to which a Scottish Secretary has purported to exercise a power is not a devolved matter, such determination shall not adversely affect or prejudice any person who before such determination has done any act which would but for such determination have been lawful". When the dust settles on these sorry proceedings and the final word is spoken by the people of Scotland, and if the Bill ever becomes enacted, the sad task that will fall to the courts of this country will be to decide what exactly it means. When the courts are engaged upon that task, which is governed by the schedule, they will not be assisted by the fact that as a result of the operation of the guillotine the Committee spent such a short time considering and sifting the proposals put forward by the Government in an attempt to make some sort of sense out of them. When Her Majesty's judges are called upon to consider these matters, as they will be, I have no doubt that they will say, in tones of bewilderment and anger, "How on earth did Parliament come to pass legislation of this sort?" The only answer that we shall be able to give is that a rapacious Government, anxious to snatch votes at all possible cost, used their temporary and fleeting majority to bully the Bill through the House of Commons irrespective of the consideration that could be given to it. That will be the answer.

Mr. Graham Page

The majority at the moment appears to be one Law Officer, one Whip and an opposer of the Bill.

Mr. Brittan

That is about the size of it, and that is the answer.

I say to the Committee—I direct my remarks especially to the Lord Advocate —that it will be a matter of shame for us as a legislature that the right hon. and learned Gentleman's Government brought about a situation that will mean that this legislation, when it comes before the courts, will be ill-considered and ill-digested, and, therefore, difficult of interpretation.

The schedule deals with the situation that will arise when a challenge is made to a Scottish Assembly Act, or a purported exercise of power by a Scottish Secretary, on the ground that the Assembly, or the Secretary of State, has exceeded its or his powers and done something that the enacting constitutional document, the Scotland Act, does not permit.

The Opposition think that it is absolutely right that it should be possible to argue in the courts, in proceedings, that an Act of the Scottish Assembly or an Act of the Executive is ultra vires and beyond the powers of the Assembly or the Executive after its passage through the Assembly or its decision by the Executive, even if the matter has not been referred to the Judicial Committee in advance of the enactment of the Assembly Act. The Committee will recall that there is a procedure thereby, if it is thought that a matter that the Assembly is thinking of doing will be ultra vires, it can be referred to the Judicial Committee in advance, which can pronounce on that point.

We think that it was quite wrong of the Government to resist all attempts to enable people other than the Secretary of State to refer matters at that stage to the Judicial Committee. We think it quite wrong that the Government should have reserved to themselves power to bring before the courts, before enactment, an Assembly Bill to see whether it is or is not within the powers of the Assembly. However, we welcome the fact that, that initial mistake having been made, it is still possible for a citizen to raise in the courts the vires of an Act of the Scottish Assembly or an Act or proposed Act of the Scottish Executive.

We also think it right—it is relevant to say this—that a challenge to the vires of a Scottish Assembly Act or of an Act of the Scottish Executive should be possible even if the matter has come before the Judicial Committee and has been held to be intra vires by the Committee. As we understand the legislation before us, even without any amendment, it is open to the courts, if the vires of an Act of the Assembly or an Act of the Executive is raised, to decide that it is ultra vires even if the Judicial Committee has previously allowed the Bill to go through and to become an Act.

Apart from anything else, I should like from the Lord Advocate confirmation that that position, as I understand it, is the one that he intends the Bill to convey, because it is a matter of some importance.

It might be thought at first blush that it is a curious procedure that the Judicial Committee can say that a Bill is all right but that later, when it comes before the courts as an Act, it should be possible to argue that it is not all right and that it is beyond the powers of the Scottish Assembly. I think, however, that that is a correct procedure.

Those of us who have looked into the history of the United State's handling of these matters will know that there is a wide feeling in the United States that the constitutionality or otherwise of legislation is something that really ought to be determined not as a theoretical question but when a case or controversy is raised in real proceedings between litigants, whether or not one of them is the State. That is because it is only when one sees how and where the shoe pinches, and what the actual effect on individual litigants is. that it is possible really to determine the scope of legislation and see whether [...] goes beyond the powers of the somewhat general words used in the actual legislation that confers the power.

All that is to the good, subject to the clarification that I hope the Lord Advocate will be able to give about my assumption on these matters. But—and this is the reason for the amendment—problems will still arise, and the principal problem that we have to consider in the amendment is the whole question of retrospectivity. What happens if, when it comes before a court, that court, whichever one it be, decides that a particular Act of the Scottish Assembly is null and void because it was beyond the powers of the Assembly to pass it?

10.0 p.m.

The problem may be said to arise to a lesser extent in the case of byelaws or subordinate legislation which can be struck down by the courts under our present law, without the Scottish Assembly. But the position is much more serious, because such byelaws and subordinate legislation are all made under an Act of Parliament, and Parliament can intervene to put right the ill that the courts have found to exist. It can amend the legislation under which the subordinate legislation was passed so that comparable legislation subsequently becomes possible.

But in the case of the Scottish Assembly and the Acts of the Scottish Executive, the position is very different, because what has been determined has been determined not by a body within the hierarchy of Parliament, the Minister and the local authority but by a body which in fact, if not in form, is a separate body with a life of its own—the Scottish Assembly. If a Scottish Assembly Act is held to be outside the powers conferred by the Bill, it will be by no means so easy to return to Parliament to put that right.

What will be the consequences if a Scottish Assembly Act is held to be void and therefore void ab initio, never to have had any force? That may happen years after it was passed simply because it never comes to the courts until then. What will be the position on vested rights that may have accrued as a result of people behaving as if the law were valid, when it is proved to be null and void? Are those rights to be set at naught or to be regarded as matters to which force must be given? What happens if someone has acted in a way that was legal under the legislation but, if the legislation is void and of no effect, has later proved to be illegal?

These are real problems, and the Government have not provided even the semblance of a solution. The right course may be that the principles applied by the courts to previous subordinate legislation such as I have described, in relation to a decision of the courts, should be applied here. If so, the Government should say so in the Bill and not leave it for the courts to reach decisions on that point with no guidance from Parliament. It is right not only for the courts to be given guidance but for the individuals who may be affected to know the consequences on their property rights and their position under the criminal law if something that they thought to be legal under this measure proves to be illegal.

This is yet another illustration of the uncertainty that will be caused by the passage of legislation which is so half-baked and the consequences of which are so ill thought out.

I do not pretend that the amendment deals with those problems. It cannot possibly do that, because to deal with them effectively would require at the very least a whole schedule setting out the principles to be applied by the courts when legislation is struck down as being ultra vires.

Mr. Percy Grieve (Solihull)

Surely the best way of avoiding that appalling insecurity would be not to have the Bill at all.

Mr. Brittan

That is the position that we have adopted consistently, and this whole area of problems is merely another vivid illustration of how much wiser that course would have been in the first place.

But, if we are to go along this road, the least that this Committee can ask for and the least that the people of Scotland and of the United Kingdom as a whole can ask for is that the Government have the intellectual integrity, the courage and the assiduity to work through and put on the statute book the consequences of their ill-conceived notions and thereby give the courts the guidance which is so singularly lacking about how to deal with problems that will arise whenever a Bill passed by the Scottish Assembly is held by the Judicial Committee to be void and of no effect.

Our amendment does not solve the problems, it only raises them. But, by raising them, it illustrates their magnitude and the total paucity of any solution provided by the Government.

Mr. Dalyell

I am not a lawyer. Nevertheless it is perfectly legitimate for a Member of Parliament to ask those who might be thought to have first-hand knowledge on such an issue. Therefore, I have to report to the Committee that I talked to the Dean of the Faculty of Advocates, Mr. MacKay, and later to Mr. Cameron, who is specialising on this Bill on behalf of the Faculty of Advocates in Edinburgh. I am authorised to say that they are very concerned about the vagueness of the schedules, which they say will create difficulties in the courts.

It is not up to me at this time of night to go into the details of the long document which was given us in February 1977. But they say that in fact, although the Government have met some of the minor points, it is their opinion that the major points put forward by the Faculty of Advocates have not been met.

They say, for example that the difficulty will occur in cases where there are provisions dealing with the same subject matter both in an Assembly Act and in an Act of Parliament. They also say that it is by no means easy to see precisely where the dividing line between devolved and non-devolved matters will ultimately rest. It appears, however, to be so drawn as to create obscurity and anomaly in at least the following respects —and they go on to refer to consumer protection. They are worried about the term "juristic persons". They concern themselves with a number of other matters, including the protection of depositors.

I go on to the next related matter. The same complaints come from Mr. Pritchard, who is secretary of the Law Society in Scotland. He says that the document which was issued by order of the Council of the Law Society, Ian A. Macmillan, president, in fact in most respects still stands.

On previous occasions, I have quoted at some length from this document. I do not want to take up the time of the Committee, but I think that there is a serious case, at any rate before Lords Amendments, that Ministers have to get together with the most prestigious legal bodies in Scotland to work out matters which cannot be worked out in a short time and still less by me as a non-lawyer in this Committee. Therefore, I put the formal request to my right hon. and learned Friend and say that, speaking for myself —and I cannot speak for anyone else—I shall not be satisfied until I hear from the Law Society and the Faculty of Advocates that they are satisfied.

Finally, earlier today and on a previous occasion, on 29th November, I raised the issue which concerned many of us about what will happen if decisions are to be made by the Judicial Committee of the Privy Council. I am afraid that I am not persuaded by my hon. Friend the Minister of State. It seems to us that, whatever the legal position on this matter may be, Scottish National Party Members here and many Members of the Assembly will never be satisfied if they are told that in the ultimate, final analysis it is not their oil, for example, because the Judicial Committee of the Privy Council has decided the issue.

Tonight I say in all humility that I took it upon myself to send copies of Hansard with a covering letter to seven possible members of the Judicial Committee of the Privy Council—Lords Diplock, Denning, Dilhorne, Edmund Davies, Simon, Wilberforce and Gardiner. They did me the courtesy of replying. It is not up to me to tell the House what they said or to pretend that they were on my side of the argument. I am saying that it is legitimate for a Member of this Committee to say that he hopes profoundly that the legal authorities with whom this buck will rest at the end of the day if this Bill becomes an Act should stir themselves—to use the word politely —and reflect on what they are being asked to do. The situation is different from the Judicial Committee of the Privy Council deciding on some difficulties in Canada or Australia. It is being drawn into the mire of what is, by definition, the most acute problem of current political controversy.

We should not be here if it were not for oil. The situation would have been totally different. The SNP campaign involves posters which state that it is his, her or their oil. To be told at the end of the day by the Judicial Committee of the Privy Council that it is not his, her or their oil may be legally correct but it is not politically possible that it will be accepted easily. The Committee might be quite right but those who have campaigned will not bow to the superior wisdom of Lords Diplock and Dilhorne.

What is the position in relation to the Law Society of Scotland and the Faculty of Advocates? What are the political realities which we are likely to face when we draw the Judicial Committee of the Privy Council into a political situation, besides which Sir John Donaldson would have been a model of political objectivity?

Mr. David Steel (Roxburgh, Selkirk and Peebles)

We have been a little discourteous about the substantial redrafting of the Bill. The difference between the formula of the Scotland and Wales Bill and the proposals in the present Bill are substantial. I say to the hon. Member for West Lothian (Mr. Dalyell) that it would have been far more vexatious and difficult to progress on the basis of what we had in the last session when there were a series of ministerial overrides where power was devolved in one clause and taken back in another. That was a recipe for continual political conflict in a way that this schedule is not.

One of the criticisms which I and my colleagues made of the original Bill was that we should move towards the type of constitutional review with which other parts of the Commonwealth are familiar. The hon. Member for West Lothian says that it is all very well for the Judicial Committee of the Privy Council to issue judgments on matters in Canada and Australia but that it is too difficult to do that in these Islands. I do not accept that view.

My purpose has always been to see that we bring the devolved powers as close as possible, in the light of geography and population, to a clearer concept. We have suggested that the real solution is to have a special constitutional court. The compromise of the Government is that the Judicial Committee of the Privy Council should do the two jobs of pre-assent and post-assent review. Not to give some acknowledgment to the Government for this substantial change and, I believe, improvement in the arrangements is, to say the least, niggardly.

Mr. Grieve

The quarrel which we on these Benches have is not with the judicial review by the Privy Council, which we would all agree is an improvement, and one that we strongly urged in the last Bill. In the amendment we are seeking to meet the insecurity which will result in the period pending such review.

10.15 p.m.

Mr. Steel

The hon. and learned Member is rushing ahead of me in my speech. I was just beginning to say that this is a substantial improvement in the legislation. We are therefore faced with a completely new concept which is that the Judicial Committee of the Privy Council will intervene in an area which was previously open to straightforward political conflict. I do not think—and this is probably where I part company with the hon. Member for West Lothian in this argument—that the elected Members of the Scottish Assembly, or the citizens of Scotland after the Assembly is set up, whatever its political complexion, will be looking for points of litigation and points of conflict with Westminster. That appears to be the assumption. Much will depend on what is climate after the Assembly is set up, but I guess that those who are elected to it will, whatever their politics, want to make it a success. I do not believe that everyone will start off on the assumption that they are out to make as big a mess of it as they can.

Mr. Dalyell

I did not say that they wanted to make a mess of it, but the truth is that they will not have the cash to carry out half the promises that they have made. There is the problem of finding the cash and where, apart from the oil revenues, will they get it?

Mr. Steel

I will deal with that point but not on this amendment.

I thought that the hon. Member for Cleveland and Whitby (Mr. Brittan) put forward a cogent case in support of his amendment, and the Lord Advocate should deal with the questions about what the position in law will be if a law passed by the Scottish Assembly is subsequently judged to be ultra vires. I do not think necessarily that the wording of the amendment is perfect, and in fairness I should point out that the hon. Member did not claim that. But the Lord Advocate will have to answer that point because basically I, who was one of the supporters of this fundamental change, am also sympathetic to the point made by the Opposition, and I think that that point has to be answered.

Mr. Grieve

As I said when I intervened briefly in the speech of the right hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel), I do not think there is anyone on the Conservative Benches who would not contend that this is a great improvement over the original Bill in that it provides for a review by the Judicial Committee of the Privy Council. My right hon. and hon. Friends advanced that view strongly over many long nights on the previous Bill.

The amendment is designed to effect some improvement in the rights of the ordinary citizen. It is impossible to travel about the country today without sensing the appalling feeling of insecurity among people in managing and arranging their affairs, in dealing with their wills and in making their financial and family arrangements through the plethora, the spate and the weight of ill-digested, ill-considered and, all too frequently, guillotined legislation. We face that situation not only on this Bill but on Bill after Bill. Legislation pours from this Parliament but it is ill-considered because there is no time in the House to consider it. It is considered in another place, but when it is returned here, their proposals are frequently rejected.

This, I have frequently urged upon the Committee and upon the House of Commons, is one of the reasons why we are facing a demand for devolution at all, to the extent that such a demand exists. It is a sickness felt by the citizen with over-Government. People resent government. They resent having their powers changed from day to day, from year to year, and from Government to Government by legislation. They condemn London. They condemn Whitehall. They say "Let us have some more government nearer to where we are", little realising that they are simply creating another tier of bureaucracy.

The result of this legislation would be that people would go to their lawyers and make arrangements and try to order their affairs in Scotland in accordance with what they consider are the terms of the Bill when it has gone through Parliament, if it does—God forbid. They will then be faced, perhaps a long period afterwards, with a matter taken to the Privy Council that will alter the whole complexion of the law, alter the interpretation of the Bill and leave them in a position in which it may well be that arrangements which they have entered into in all good faith appear no longer to be right. They may find themselves in extreme legal difficulties.

That is the vice at which the amendment moved by my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) is aimed. That is the vice which the amendment is designed to conquer and to meet. For that reason I, for one, give it my unflinching support. I hope that it will meet with support from both the Government and Opposition. It certainly met with support from the hon. Member for West Lothian (Mr. Dalyell). No one has been more assiduous than he in the consideration of the Bill in its progress, if progress it can be called, through the House of Commons.

For those reasons I commend the amendment to the Committee. I commend it to my hon. Friends. I do not know whether it is necessary to commend it to Labour Members because, as has been observed, there are only three Members present on the Government side—the hon. Member for West Lothian, who is bitterly opposed to the Bill, the Lord Advocate, who is making the best of a bad job and a poor, poor Whip.

Mr. Gow

It would be churlish not to point out that from the time when my hon. and learned Friend the Member for Solihull (Mr. Grieve) sat down to the moment when I rose to address the Committee another hon. Gentleman from the Government side had joined the Committee. There are now four hon. and right hon. Gentlemen on the Government Benches. It would be churlish not to welcome to our proceedings the Lord Advocate. I understand that today is the first occasion on which he has assumed ministerial responsibility for an amendment to the Scotland Bill. I express the hope, even before having heard his reply, that he will grace the Committee on future occasions with his presence and, above all, with his speeches. We look forward with mounting impatience to the maiden speech of the Lord Advocate on this Bill. As you glance to your right, Mr. Murton, you will see in his place the right hon. and learned Gentleman. You have not heard him yet, Mr. Murton, and I hope that you may have the privilege of sitting in that Chair when the Committee resumes on Wednesday of next week, for then, if not tonight, the Lord Advocate will be addressing the Committee.

I wish that the right hon. and learned Gentleman had sought to catch your eye, Mr. Murton, when my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) sat down. There was one way in which the Lord Advocate could have shortened these proceedings and allowed us to debate other matters. That was simply by seeking to catch the eye of the Chair when my hon. Friend had sat down and then to say in one sentence "I congratulate the hon. Member for Cleveland and Whitby on an excellent amendment and, on behalf of the Government, I accept it". That should have been the Lord Advocate's maiden speech to the Committee.

My hon. Friend put forward a most compelling argument. Indeed, he moved the amendment with that characteristic modesty that we have come to expect from him. Quite unlike the Government Front Bench, my hon. Friend did not say that his amendment was perfect. He did not claim for the Tory Party that this one amendment would make such an improvement to this dreadful Bill that it ought to go down in the annals as a great achievement. Rightly, my hon. Friend said that if the amendment were accepted, it would be an improvement to the Bill.

Why did my hon. Friend say that? For the very reason that you, Mr. Murton, and I came into the House of Commons in the first place—to protect the individual against the arrogance of the State. That is what motivated my hon. Friend, just as it motivated you, Mr. Murton, and other right hon. and hon. Members.

What does the amendment seek to do? It seeks to provide that any person who, subsequent to something which is done or purported to be done by either the Scottish Assembly or a Scottish Minister, in pursuance of the Act which the Bill will then have become, acts ultra vires through no fault of his own, shall not be subject to penalty. That is the effect of the amendment. A person who has acted bona fide in trying to interpret the mysteries of what will become, if the Government have their way, an Act of Parliament, shall not be adversely affected or prejudiced.

How can the Government sustain the proposition that the amendment is unacceptable? It is a modest, fair amendment. It seeks to absolve from blame, culpability or penalty any person who acts in accordance with a determination made by the Assembly or by a Scottish Secretary. Why should a citizen of Scotland or, indeed, any other part of the kingdom, be held accountable for the misdeeds of the Government? The misunderstandings, difficulties of interpretation and the whole question of vires will—not may—arise.

My hon. Friend and the Lord Advocate are members of the senior branch of the legal profession. I am only a solicitor. I say this to the right hon. and learned Gentleman, that a very great deal of legal business will result if this Bill should ever become an Act. The question of vires, the question of the competence of the Assembly, of a Scottish Secretary, will be continually and continuously in dispute.

10.30 p.m.

Mr. Sproat

A legal bonanza.

Mr. Gow

My hon. Friend the Member for Aberdeen, South (Mr. Sproat) talks of a legal bonanza. There are many right hon. and hon. learned Members on the Labour Benches who are opposed to a legal bonanza. I speak against my profession when I say that they are right. I hope that the Lord Advocate, when he makes his maiden speech, will graciously say to my hon. Friend the Member for Cleveland and Whitby "I thank the hon. Member for introducing this amendment. I recognise that it is an improvement to the Bill." I hope that he will accept the speeches of my right hon and hon. Friends in that spirit.

Mr. Graham Page

The whole of Schedule 12, which this amendment seeks to alter, is contrary to natural justice. If it is pursued the Government may well find themselves brought before the Court of Human Rights. It deals with what is called a "devolution issue," which is duly defined in paragraph 1 of the Schedule as follows: In this Schedule "devolution issue" means a question—

  1. (a) whether a Scottish Assembly Act or any provision of a Scottish Assembly Act is within the legislative competence of the Assembly; or
  2. (b) whether a matter with respect to which a Scottish Secretary has purported to exercise or proposes to exercise a power is a devolved matter."
This issue will not arise by reason of the Lord Advocate thinking that some power has been exceeded. It will not arise by reason of the Scottish Secretary admitting that he has exceeded his powers. It will arise because some individual citizen feels aggrieved, because he feels that he has been injured by what he thinks is a wrong exercise of power, or even as a result of a dispute between two individuals.

What are those individuals to do? This devolution issue is to be fought out between two Government officers. The aggrieved individual is to be forbidden to take part. The Lord Advocate shakes his head. I hope that he can put me right. As I read Schedule 12, there is nothing in it which accommodates the aggrieved in it which accommodates the say that he can take part in this issue, or have anything to say. After all, he is the person most concerned.

When the issue has been decided—perhaps it is an issue between two individuals—one of them may well find that it has been declared that he has been acting illegally. One individual may feel that he has won the argument while the other may find that he has been acting illegally. It is that which the amendment attempts to ameliorate and to say that if some poor individual, who has not had a chance to put his own case, is found to have acted illegally, at least he shall have the indemnity offered by the amendment.

I would have thought that this amendment—even if the Lord Advocate cannot accept it as it is phrased—is something which in principle ought to be included in Schedule 12. It would, at least, save the Lord Advocate from being brought before the Court of Human Rights and being told that the whole of Schedule 12 is against natural justice.

The Lord Advocate (Mr. Ronald King Murray)

I was invited to thank the hon. Member for Cleveland and Whitby (Mr. Brittan) for introducing this amendment and I gladly do so. We have had a useful debate on it. But I cannot go further. The hon. Member frankly said that he did not maintain that the amendment was perfect. He urged, rather, the principle of the amendment upon the Committee. I would like to reply in that spirit.

First I confirm that it is my view that if the Judicial Committee of the Privy Council, on a pre-Assent reference, passed a Bill as intra vires—although it might not arise in a decision in exactly that form, the effect would be to endorse it as intra vires—that would not bar later court action to gain the benefit of a court decision to the effect that part of the Act or the whole of the Act was ultra vires. I agree that that is the reasoning by which the hon. Gentleman supported the desirability of that conclusion.

It is desirable that decisions involving justice and injustice to citizens should be real decision taken in a real context. Indeed, that was argued strongly by the Government on the Scotland and Wales Bill last Session. I welcome the view of the right hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel) in so far as he dealt with this matter and gave some credit to the Government for responding to criticisms made on those lines.

The hon. Member for Cleveland and Whitby suggested that one of the differences between ordinary subordinate legislation and Assembly legislation—which, after all, from the point of view of this Parliament, is subordinate legislation—

Mr. Brittan

In theory.

The Lord Advocate

I accept that. At any rate, it is not of the status of the legislation of this sovereign Parliament. One must remember that the reality is that, if the subordinate legislature, however important its primary legislation may be, oversteps its proper limits, this sovereign Parliament must have an inherent power to rectify that situation. That is a matter that I think the hon. Gentleman overlooked.

On one of the things he said about the amendment the hon. Gentleman was perhaps guilty of a certain exaggeration. If there are merits in the amendment, one of the criticisms that can be made of the Government's position on the basis of the amendment is not justified. The hon. Gentleman suggested that the position he sought to improve, or the defect he sought to remedy by means of the amendment, is something which logically requires the Government to spell out a whole series of remedies for possible situations.

Surely that kind of approach is dead against the genius of our law, both the common law south of the border and Scots law north of the border. The genius of our law is rather to proceed in an empirical way. Indeed, I would adopt an argument he used earlier in his speech, that the benefit of having post-judicial decisions in real litigation in the courts is that one gets decisions on real problems.

Surely it is wrong in principle and contrary to the traditional legislation of the House of Commons to seek to spell out every possible inequity and all possible remedies to every possible inequity. I am sure that if the hon. Gentleman thinks about that, he will see that such is the logic of the argument he presented.

I come now to the mainstream of the argument. The hon. Gentleman indicated that the amendment was proposing a provision to achieve the effect that a judicial determination than an Assembly Act or provision was ultra vires would not prejudice or adversely affect any person who relied upon its being lawful prior to that determination.

This, on the face of it, is a well-intentioned amendment with what appears to be a reasonable objective. But, apart from the defects that the hon. Gentleman recognised might lie in it, closer examination reveals this type of remedy to be a radical departure from existing legal canons, the implications of which would be far reaching and, indeed, unforeseeable. I press that as an important point. The implications of such an amendment would be quite unforeseeable and would almost certainly generate greater inequities than hose it sought to solve.

This case can be put by pointing out that the amendment seeks to change, in this quite restricted field—vires in regard to Assembly legislation and Executive acts—the normal rules about the effect of court decisions on pre-existing law and the pre-existing legal relations which rested upon that law.

Normally the prudent man must act upon the best advice that he can get as to the law as it is believed to be. If it turns out to be wrong, the consequences lie where they fall. But the issues which give rise to a successful challenge of vires will in general be no different in character from those which arise in the course of litigation about statute law or subordinate legislation at present. Indeed, they will arise in the course of an ordinary action seeking from the courts some remedy which the court is able to give to that litigant.

Although the Assembly in its legislation will clearly be enacting legislation more far-reaching and of a higher status than subordinate legislation of this House, in principle the latter—the subordinate legislation and statutory instruments of this House—gives rise to the same problem to which the same solution might be proferred.

The hon. Gentleman recognised that in presenting his argument. I suggest that we should pause to consider that matter carefully before adopting a solution which is an extremely radical departure from normal practice and which has not been thought to be necessary or equitable in regard to existing problems of vires.

I cannot resist the aside that there is a certain paradox here because the official Opposition in earlier debates on the Scotland and Wales Bill laid more stress on the merits of judicial review being available through the ordinary courts in the land. That was a view I agreed with. It is surprising that those who took that view should now be tabling this amendment, the effect of which is to reverse that position to some extent. To put the matter another way, if Assembly Acts like Acts of Parliament cannot be challenged as to vires this problem would not arise at all. Logically this is an amendment which points in the direction of not having judicial review at all. I put that as an aside. But the real and substantial difficulty is that the consequences of an amendment of this type are far-reaching and unforeseeable.

At this point I would make another aside. Some hon. Members who have spoken have perhaps failed to appreciate that in the original Scotland and Wales Bill, had nothing whatever been said about legislation of the Assembly being challenged, there is no doubt in law that the courts would have had the normal power of judicial review. Accordingly, if nothing is said, judicial review exists.

What we are doing in Schedule 12 is not to spell out all the implications of judicial review. What we are seeking to do is to provide the essential machinery to enable effective steps to be taken—in other words, to give a degree of certainty and provide the machinery for the carrying out of judicial review. It is not meant to go beyond that.

Looked at in that light, some of the criticisms levelled against the Government are not justified. The implication of seeking to correct a possible inequity in a comparatively narrow range of cases which are very difficult to envisage is that it would have far-reaching effects which might create all sorts of different inequities which go far beyond the rights, duties and legal obligations of litigants and involve all sorts of people who are not party to litigation and who have not had a choice about it.

If we were to agree to this sort of amendment it might have that sort of effect. A strong and cogent case would have to be made to prefer that to the normal rule with regard to a judicial decision, which is to the effect that the consequences in a judicial decision have to lie where they fall.

10.45 p.m.

There may be other remedies, such as legislation in Parliament. Sometimes ex gratia payments can be made in appropriate cases and pardons granted in criminal cases. These are remedies that are essentially outside the normal course of litigation which seem appropriate in the present state of the United Kingdom before devolution. These are the lines upon which we should concentrate.

Mr. David Steel

Is the Lord Advocate saying that the only difference between the judicial review of Acts of the Scottish Assembly and the normal course of the judicial review of subordinate legislation of this House is that there is a third option opened up? Either the court effectively establishes the law of the land and everyone abides by it or Parliament decides to change the law in line with the decision. Now there is a third option in which the Scottish Assembly adjusts the Act, and this is the only difference.

The Lord Advocate

I am grateful to the right hon. Member. I accept that there is a third option open.

Mr. Brittan

But this is not an option opened to deal with this problem. The Scottish Assembly may be able to achieve legislation of a broadly comparable kind, minus the defect that led to the previous legislation being held to be ultra vires. But it will not be able to affect or rectify the position as far as it concerns people who have acted in the past on the basis of the previous legislation being valid. Surely the whole basis of the point that the Lord Advocate is making is that these are within the same structure. It is all very well to talk about ex gratia payments and pardons as ways of dealing with striking down a piece of subordinate legislation within the United Kingdom system, but when there are two Governments and two legislatures, that cannot be done in the same way. We cannot have a United Kingdom legislature and a United Kingdom Government intervening to rectify the effects of subordinate legislation of the Scottish Assembly that has been proved invalid in the same way as United Kingdom subordinate legislation. If we did that, there would be considerable political problems. We cannot leave the law silent because there are important political differences between straightforward legislation and Scottish Assembly legislation.

The Lord Advocate

I accept the way in which the hon. Gentleman has put it. The Scottish Assembly will not necessarily be able to rectify it. When I mentioned ex gratia payments I meant that the Scottish Assembly and its Executive could take steps to rectify the situation in this way.

I come back to the main stream of the argument and point out that there is other machinery to ensure that this kind of inequity would be very rare. I am thinking particularly of arrangements for pre-enactment scrutiny, which are crucial. These include arrangements for pre-enactment references to the judicial committee. Nothing of the kind exists for subordinate legislation of this House. Pre-enactment scrutiny should be a considerable protection against the existence of the kind of evil that this amendment intends to meet.

Let me deal, somewhat out of order, with the interesting point mentioned by the right hon. Member for Crosby (Mr. Page). I must refute his argument. I think that he possibly has in mind an argument which might have been advanced on other amendments, if reached, but which will not, I am sure, be reached tonight. I think that it is appropriate for me to point out the reason why in this part of the schedule there is specific reference to the Lord Advocate and the Attorney-General as people who have title to raise the issue of vires in appropriate litigation, because if they were not mentioned there might be doubt whether they had title to sue. For that reason they have been expressly mentioned in the schedule. But by the same token an ordinary litigant who has an interest in the matter and who has title to sue would be able to raise that issue in an action competent before an ordinary court of law. There is no doubt about that. Accordingly, the hypothesis he put to me is without foundation and the right hon. Gentleman's worry is unjustified.

Mr. Graham Page

Does that not mean that two actions may take place at the same time and that the devolved issue may arise in court in an action between two individuals? If it rests with the Lord Advocate and the Attorney-General to fight it out between them, surely the litigants in the case in which the matter has arisen should be allowed to take part in that action between the Lord Advocate and the Attorney-General.

The Lord Advocate

If the right hon. Gentleman re-examines the schedule, he will find that we have anticipated that possibility.

I return to the main stream of the argument. It seems to me that the more one examines the amendment the more one sees that any attempt to unravel a transaction entered into and acquiesced in many years previously in the way required would be a desperately difficult task. The remedy is not as easy as it looks. The hon. Member for Cleveland and Whitby said that problems might arise because something that appeared as settled law might be affected, but the remedy pre- scribed might be at least as difficult and complex as the situation it seeks to put right.

I think that the amendment adopts a difficult approach in a narrow area which cannot be separated in content from what occurs in an ordinary action. It seeks to produce new and separate rules affecting established principles—for instance, the principle that money paid under an error in law cannot be recovered, and the principle of res judicata, which prevents the parties to a legal action which has been concluded from reopening it on the ground that a later decision has changed the law on which it was decided. All these matters would have to be reconsidered and the far-reaching effects of the amendment cannot be exaggerated.

The amendment would also create insoluble problems in relation to its effects upon successive decisions of different courts which came to different conclusions on the same vires question. Persons could be left in complete uncertainty about the security of their rights under past transactions and relationships.

One might have a decision of a relatively subordinate court which, for good reason, nobody wanted to refer to the Judicial Committee or to appeal. It might be that for good reasons the litigants would think the case settled and finished. However, there might have been a different result if the case had been appealed and years later there might be a conflict. The difficulties of the amendment make the mind boggle.

I think my hon. Friend the Member for West Lothian (Mr. Dalyell) was guilty of a certain amount of exaggeration in his remarks this evening. I know that it would be difficult, and perhaps impossible, to satisfy all lawyers on any proposed reform or constitutional change, but the Faculty of Advocates to my knowledge went on record strongly in support of a judicial review. That is what the Government are introducing and that is what this issue is concerned with. I know that we have not satisfied the Faculty in every single respect, but I am not aware of any serious doubt about Schedule 12. I understand that the Law Society of Scotland is entirely opposed to judicial review and it would be impossible to satisfy the Society in this debate. I shall not direct myself to a task which is, by definition, impossible.

Mr. Dalyell

On this narrow point, I am willing to be satisfied. On the broader point raised by the hon. Member for Cleveland and Whitby (Mr. Brittan), if the Faculty and the Law Society tell me that they are satisfied, I shall automatically be satisfied.

The Lord Advocate

I think that my hon. Friend is baying for the moon. We shall never get all legal bodies satisfied about anything.

The hon. Member for Cleveland and Whitby conceded that the amendment was not perfect. It has drafting defects. For example, a proper construction of the amendment would exclude the very remedy it seeks to bring about because the loser in litigation is bound to be adversely affected and he may not be able to get a remedy under the amendment.

For all the reasons that I have mentioned, I advise the Committee to reject the amendment.

Mr. Brittan

The Lord Advocate has applied an exclusively legal approach to this problem. Of course it is a legal problem, but one cannot ignore the political dimension. Looked at solely on the basis of a legal construction, it is tenable to say that Scottish legislation is just like an Order in Council or a Statutory Instrument introduced by the Minister of Agriculture. But that is wholly unreal, and the right hon. and learned Gentleman recognises the unreality and does not apply that principle in the Bill.

If we could rely on the well-applied and accepted principles for the determination of issues as to the vires of Statutory Instruments, there would be no need for Schedule 12 and the special machinery. We could allow the issues to be raised in the same way as are the vires of bye-laws or Statutory Instruments.

The fact that the Government have introduced special machinery shows that when they are wearing their political hat they are wise enough to realise that the principles to be applied in considering what happens when a Scottish Assembly Act is declared ultra vires cannot be the same as those applied when considering whether a Statutory Instrument is valid.

The Lord Advocate cannot just sweep the problem aside and say that these matters can be dealt with in the same way. At least some of the ways by which they might be dealt in the case of subordinate legislation are not open to use in circumstances where there are two politically different bodies which may not concur about how the problem should be dealt with.

The right hon. and learned Gentleman said that the Assembly might grant ex gratia payments or pardons, but suppose it were deeply resentful of the fact that its Act had been declared ultra vires.

Mr. Dalyell

And it would be resentful if that happened.

Mr. Brittan

Indeed it would. Is the Lord Advocate suggesting that the Assembly would tamely say that the Judicial Committee had broken down the Assembly Act and that its members would have to bear the consequences, including the possibility of making substantial ex gratia payments to citizens who had been aggrieved by the illegality? That is politically unreal. The problem remains.

If the Lord Advocate thinks that the principles that need to be applied in determining what happens in those circumstances are exactly the same as those applied in the case of Statutory Instruments, let him write into the Bill a simple provision saying just that. Let him provide that the principles to be applied in dealing with the situation arising after a Scottish Assembly Act has been declared ultra vires shall be the same as those applied in the case of Statutory Instruments. I hope that the right hon. and learned Gentleman regards that as a constructive suggestion and that he will give it serious consideration so that this canon of interpretations is inserted on Report or later.

Mr. Dalyell

Undoubtedly my right hon. and learned Friend—

It being Eleven o'clock, The CHAIRMAN proceeded, pursuant to the Order [16th November] and the Resolution [22nd November], to put forthwith the Question already proposed from the Chair.

Question, That the amendment be made, put and negatived.

The CHAIRMAN then proceeded to put forthwith the Question necessary for the disposal of the Business to be concluded at Eleven o'clock.

Schedule 12 agreed to.

Then The CHAIRMAN left the Chair to report Progress and ask leave to sit again pursuant to Order [16th November].

Committee report Progress: to sit again tomorrow.