DEVOLUTION ISSUES (Hansard, 3 February 1998)

§ Mr. Ancram
I beg to move amendment No. 447, in page 79, line 13, leave out from first 'the' to end of line 14 and insert 'Appellate Committee" means the Appellate Committee of the House of Lords.'.

The Chairman
With this, it will be convenient to discuss the following amendments: No. 448, in page 80, line 5, leave out 'Judicial' and insert 'Appellate'.
No. 449, in page 80, line 8, leave out 'Judicial' and insert 'Appellate'.
No. 450, in page 80, line 9, leave out 'Judicial' and insert 'Appellate'.
No. 451, in page 80, line 11, leave out 'Judicial' and insert 'Appellate'.
No. 452, in page 80, line 14, leave out 'Judicial' and insert 'Appellate'.
No. 453, in page 81, line 1, leave out 'Judicial' and insert 'Appellate'.
No. 454, in page 81, line 4, leave out 'Judicial' and insert 'Appellate'.
No. 455, in page 81, line 5, leave out from '19.' to end of line 7 and insert—
'Nothing in this Act shall give the House of Lords jurisdiction to determine a devolution issue arising from or incidental to a criminal prosecution in Scotland.'. No. 456, in page 81, line 8, leave out 'Judicial' and insert 'Appellate'.
No. 457, in page 81, line 10, leave out 'Judicial & and insert 'Appellate'.
No. 458, in page 81, leave out lines 12 to 18.
No. 459, in page 82, line 1, leave out 'Judicial & and insert 'Appellate'.
No. 460, in page 82, line 4, leave out 'Judicial & and insert 'Appellate'.
No. 461, in page 82, line 5, leave out 'Judicial & and insert 'Appellate'.
924 No. 462, in page 82, line 8, leave out 'Judicial & and insert 'Appellate'.
No. 463, in page 82, line 10, leave out 'Judicial' and insert 'Appellate'.
No. 464, in page 82, line 18, leave out 'Judicial' and insert 'Appellate'.
No. 465, in page 82, leave out lines 13 to 17.
No. 466, in page 82, line 20, leave out 'Judicial' and insert 'Appellate'.
No. 467, in page 82, line 28, leave out 'Judicial' and insert 'Appellate'.
No. 468, in page 82, leave out from beginning of line 37 to end of line 22 on page 83.

§ Mr. Ancram
This group of amendments is not as daunting as it may seem because all the amendments seek to achieve the same purpose. We are, however, seeking to address a significant point, and to question why the Judicial Committee of the Privy Council, rather than the House of Lords, has been chosen as the arbiter on devolution issues. That is a serious question. I accept that the Privy Council was mentioned in paragraph 3.43 of the White Paper, but it was a minor mention and gave no justification for the selection of the Privy Council-except to say that the body would produce "a speedy decision". As a lawyer, I doubt whether that will necessarily be true of any court. If that was the only reason for selecting the Privy Council, perhaps it was not the best; perhaps the Privy Council should not have been chosen as the body to which such matters should be submitted.
We are seeking to replace the Privy Council with the House of Lords, the senior appellate court within our system. I say that even as a Scottish lawyer because, although the House of Lords does not have appellate jurisdiction in criminal matters in Scotland, it does in civil law.
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We wonder why a court for which there is a great deal of respect and which cannot be challenged as political in any way, or regarded as tarnished as being part of the House of Lords, where reform will be taking place, is being sidestepped. The House of Lords is a court of the United Kingdom; it is composed of judges from the United Kingdom; and the issues of which we are speaking will be United Kingdom issues. They will arise between parts of the United Kingdom, and it is right that, within the United Kingdom, they should be decided by a court of the United Kingdom.
The Judicial Committee is not a court of the United Kingdom in the same way; it goes far wider. I have taken the precaution of reading the latest list applying to the Judicial Committee: judges of the United Kingdom naturally appear on it, including the Lord Chancellor, the Lord President, Lords of Appeal in Ordinary and such other members of the Privy Council as shall from time to time hold, or have held, high judicial office. But the list contains other members, most of whom, interestingly 925 enough—I am sure that the reason is the quality of the country's law—come from New Zealand. There are other members from Australia, Barbados, the Eastern Caribbean supreme court, the Bahamas and Jamaica. The Judicial Committee cannot be regarded as a court which has jurisdiction solely within the United Kingdom or as a court of the United Kingdom.
I look forward to hearing whether the cosy relationship that has existed between members of Plaid Cymru and the occupants of the Treasury Bench during the past few debates will persist. I have read over the past few days that the Scottish National party is seriously concerned about the use of the Judicial Committee. It takes the view that such matters should not be put before members who, however eminent they may be in jurisprudential terms, may not be fully aware of all the implications of the issues within these islands.
We are seeking to provide an appellate body in which all parts of the United Kingdom can have confidence, whose judges are known to Members of the House of Commons and to the various parts of the United Kingdom. I fear that the Judicial Committee proposal will give rise to uncertainty about the expertise that may be brought to bear.
The Opposition have a further concern, which is important in the context of the arguments that we were advancing earlier about the integrity of the Union. We are considering disputes that will arise between members of the United Kingdom and from powers that have been delegated from the House of Commons. I shall not return to the supremacy argument, but there may be doubts about the vires. To take these issues out of the United Kingdom context and place them in an international arena will give them a nature that will be entirely inconsistent with devolution within the United Kingdom. For that reason, too, I hope that the amendments will be given serious consideration by the Government.

§ Mr. Denzil Davies
I have some sympathy with the arguments advanced by the right hon. Member for Devizes (Mr. Ancram). I suggested earlier—and not very seriously—that the Judicial Committee of the Privy Council was perhaps being used because Scotland and Wales would be dependent territories.
The right hon. Member Gentleman has made a serious point. It is surprising that all devolution issues are to go to the Privy Council. Perhaps the same judges would sit in the Privy Council and the House of Lords. Perhaps the Minister will say that Mr. Justice Cooke, the President of the New Zealand Court of Appeal, or the President of the East Caribbean Court of Appeal, will not be chosen to hear such cases.
Why has the Privy Council, which is an excellent court but a bywater in many respects in terms of United Kingdom law, been elevated to such a position? I would think that the House of Lords could do the job perfectly well.
I was surprised to hear that the Scottish nationalists objected to the use of the Privy Council. I thought that they might object to the House of Lords being the court of final jurisdiction. No doubt the Minister, when he replies, will explain it all.

§ Mr. Ancram
To be fair, I should make it clear that what I read was that the Scottish National party did not like the Judicial Committee of the Privy Council. I am not aware of the SNP's views on the House of Lords.

§ Mr. Davies
I am still slightly confused. I should have thought that the SNP would have wished it not to be the House of Lords, which might be seen to be an English court, whereas the Judicial Committee has a different pedigree.

§ Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)
I had no intention of chipping into the debate but have been goaded into doing so by the right hon. Member for Devizes (Mr. Ancram).
I do not speak for the Scottish National party, which has its own view, but I have every confidence in the Privy Council and can see no reason why it should not be selected. That may, of course, further the cosy relationship with the Treasury Bench. I was not aware of it as such, but if it means having to adhere to that cosy relationship, in this instance I do so.

§ Dr. Marek
I also had no intention of speaking in the debate. The right hon. Member for Devizes (Mr. Ancram) made a serious point. Let me see whether I can put the other argument.
If it were to be the House of Lords, there might well be many more English—I use that word advisedly—rather than Scottish or Welsh judges, and there might then be arguments within the Principality on whether a decision was fair, unbiased and so on. The Judicial Committee, with judges from the Commonwealth, will provide a breath of fresh air, a bit of independence and a disinterested view. I am not accusing judges of being anything other than disinterested, but they should also be seen to be disinterested. That is the nub of my argument. If it were the Judicial Committee, with judges from the Commonwealth and so on, it would be easier to get a quorum of judges to sit on a particular case, and the public's perception that those judges were disinterested would be much clearer.

§ Mr. Öpik
The right hon. Member for Devizes (Mr. Ancram) referred to a list of countries from which we may select our Privy Councillors as wide-ranging as the countries from which we seem to import our beef these days.

§ Mr. Jenkin
What about Estonia?

§ Mr. Öpik
The right hon. Gentleman excluded Estonia. I do not know of any Privy Councillors living in Estonia at this stage, but time will tell if that changes.

§ Mr. Nigel Evans (Ribble Valley)
Yes, but you are working on it.

§ Mr. Öpik
I assure the hon. Gentleman that I am most certainly not working on our sharing Privy Councillors from Estonia. It seems extremely unlikely that some world tour will be conducted to obtain Privy Councillors to sit on a committee to judge matters that relate to Wales, so that is a slightly spurious concern.
927 The second, serious, reason why the Liberal Democrats oppose the proposal is that the House of Lords might not even exist in five or 10 years' time. Privy Councillors are likely still to be in place, so, in the spirit of expectation of significant reform of the upper House, let us tie ourselves to a body that will exist, albeit it all over the world, long after the House of Lords has been massively reformed.

§ Mr. Letwin
I wish to speak for one minute, to point out that this is an extraordinary debate, because we are debating which of the two bodies is appropriate. That either should have been nominated to perform the task is remarkable—the more so if it is to be, as it were, exported to the Privy Council—because what we are doing is to ask an English court to adjudicate about the supremacy of Parliament. That is the most extreme example of departure from constitutional convention contained in the Bill. The notion of devolution itself is a most radical measure. It is extraordinary that it should not be allied to the greatest possible conservatism in the choice of court. That seems to me the strongest argument in favour of the argument of my right hon. Friend the Member for Devizes (Mr. Ancram).

§ Mr. Win Griffiths
This has been another interesting debate, with quite curious trains of thought in relation to what we are trying to do with the Judicial Committee of the Privy Council.
As the right hon. Member for Devizes (Mr. Ancram) said when moving his amendment, we made it clear in the White Paper—however brief the reference might have been, it was quite explicit—that the Judicial Committee of the Privy Council is the judicial mechanism that the Government have selected to resolve disputes about the assembly's use of its powers. Therefore, the point made by the hon. Member for West Dorset (Mr. Letwin) about Parliament is not strictly necessary, because it relates to whether the functions set out for the assembly are being carried out appropriately, just as the Law Lords can consider issues in relation to the House if it is felt that a Minister is not carrying out his or her duties appropriately.
The arrangements that we have made in the Bill are similar to those in the Scotland Bill, although, of course, in that case there is the issue of the primary legislative powers of the Scottish Parliament. We believe that it is highly desirable that the same court should be able to deal with cases that could arise from the new constitutional arrangements for Wales and Scotland that the Government are putting in place. The provision has been included just in case there is a problem. We want to say not that there will be problems, but that there should be a mechanism.
The Judicial Committee acts now as the final constitutional court of appeal for various Commonwealth dependencies and colonies, which were mentioned earlier by my right hon. Friend the Member for Llanelli (Mr. Davies). As it already has that role, we thought it appropriate to use its experience of handling cases that raise constitutional issues.
We also believe it important that a flexible mechanism should be in place to allow the assembly's powers to be resolved promptly. The amendments would add to the 928 work load of the Appellate Committee of the House of Lords. I am not sure that they would lead to prompt decisions on cases, bearing in mind the provisions in the schedule for cases to be referred on appeal. In that context—this deals with the point raised by the right hon. Member for Devizes and my right hon. Friend for Member for Llanelli—paragraph 33 of schedule 6 gives greater flexibility about the membership of the Judicial Committee of the Privy Council than exists for the membership of the Appellate Committee of the House of Lords.
The Judicial Committee can draw its members from any of those who hold or have held the office of a Lord of Appeal in Ordinary, or certain high judicial offices. That includes Lord Chancellors and judges of the High Court and of the Court of Appeal in England and Wales or Northern Ireland, or of the Court of Session in Scotland. However—this is the crucial point—schedule 6(33)(b) excludes judges from the colonies or the Commonwealth, because it refers to ignoring for this purpose section 5 of the Appellate Jurisdiction Act 1887". I hope that, in the spirit in which I have given my information, the right hon. Member for Devizes will feel able to withdraw his amendment.

§ Dr. Marek
It is clear that that provision will remain in the Bill, but I think that that is a great pity. It would have introduced a breath of fresh air, and a bit if disinterestedness, if some of the judges who have been excluded had been able to make decisions.

§ Mr. Griffiths
That is obviously my hon. Friend's view, but we feel that it is appropriate for such matters to be settled in the context of, so to speak, the member states of the United Kingdom.

§ Mr. Ancram
I listened carefully to what the Minister said, but I am not entirely convinced by his arguments. He seems to be riding two horses in opposite directions. First he says that the Judicial Committee will be able to deal with cases swiftly because—he hopes—there will be very few, if any; then he tells us that to give them to the House of Lords would overload the House of Lords. He must decide whether there will be many cases or very few.