§ House aeain in Committee on Clause 15.
The Earl of SELKIRK moved Amendment No. 71:
Page 7, line 25, after ("it") insert ("which is fair and accurate").
§ The noble Earl said: We are still dealing with Clause 15, defamatory statements in Assembly proceedings. We now come to subsection (2), which deals with the question of abstract reports or summaries from publications from Parliament. At the present time, as the Bill is drafted, you can make any report from Parliament unless it is proved to be made with malice. I suggest that that is much too wide a limitation. That means, in effect, that anyone can make statements which are inaccurate, are misrepresentations, are scandalous, or indeed degrading of Parliament. There ought to be a slightly higher standard than is required simply by the word" malice
§ It is a delicate matter for a reporter, but I suggest that there should be added to Clause 15(2) the words "which is fair and accurate ". The noble and learned Lord the Lord Chancellor has emphasised, and I think it is the object of the Government, that so far as may be we should present in this clause what is the current procedure in Westminster.
§ This concept was introduced by the Act of 1952, which brought radio into substantially the same lines as the Printed Papers Act 1840. Incidentally, I take it that the word "privileged" in subsection (2) is meant to be qualified privilege as opposed to absolute privilege. If a report is fair and accurate, and of course made without malice, then it is entitled to 729 qualified privilege. But, as it stands, there is a wide margin where much damage, much degradation can be made in a Parliamentary report, which is particularly referred to here, unless something of this character is put in.
§ I hope that the Lord Chancellor will be able to give us a rather better picture than he did on the last Amendment, though this is an entirely different question. I must, in fairness, say this because this is quite an important matter. This raises the whole question of the manner in which public reports will be made, whether by radio or newspapers, on the proceedings which take place in Parliament. The official report which will be authorised by the Assembly, or Convention, or whatever we call it, will of course, as has been said already, have absolute privilege, as Hansard has today. But if extracts are taken from it, then they must be fair and accurate. That is the position existing today at Westminster.
May I again venture to refer to Lord Donovan's second Report, page 13, paragraph 36. It says:
If any person publishes an extract from, or abstract of, such official report "—
that is, presumably, Hansard in some cases—
such report is fair and accurate, he shall be entitled to qualified privilege in respect of such publication.
This would seem to be the position not only under Section 3 of the 1840 Act but also under common law. I think it is absolutely essential that it should be put into this Act, otherwise the position will be left right open. Anybody will be able to report what they like and obtain qualified privilege so long as malice is not proved. I am sure that the noble and learned Lord Chancellor is in no doubt about how difficult it is to prove malice. It means that someone may go a very long way without having malice proved. I suggest, with great respect, that to ensure that this Assembly is reasonably presented to the public these proposed words are absolutely essential. I ask the noble and learned Lord Chancellor to accept the Amendment which I now move.
§ 8.21 p.m.
§ The LORD CHANCELLOR
This Amendment deals with abstracts from, or summaries of, publications made under 730 the authority of the Assembly. If a document is published arising out of proceedings of the Assembly, that document is protected by absolute privilege. But the publication of an abstract from it, or a summary of it, is only protected, as the noble Earl said, by qualified privilege, which is the same protection that is given to the publication of an abstract from, or summary of, an official Parliamentary paper. It is given qualified privilege. Clause 15(2) gives such abstracts from, or summaries of, official papers of the Assembly the same protection. However, the safeguard in regard to defamation that is provided is the provision that, if the publication is proved to be made with malice, then of course the protection falls.
It is the case that in the Defamation Act the words that are found in the noble Earl's Amendment do appear— "fair and accurate "—as additional elements required to establish qualified privilege. But those words appear in relation to unofficial newspaper statements reporting the proceedings of the Assembly, whereas the documents with which we are dealing are of a different character. They are summaries or abstracts published under the authority of the Assembly itself and have that official provenance.
Therefore it would seem to me, with respect, that it suffices, in respect of those and that the provision that malice takes away the protection would seem to be reasonable. Indeed, if such an abstract of, or summary from, an official source was not fair and accurate it is very likely that the intention behind it was malicious and that malice would therefore be capable of proof. That is the explanation of the difference.
The analogue to the provisions of the Defamation Act is to be found in paragraph 12 of Schedule 16, which noble Lords will sec at page 82 of the Bill; whereas your Lordships will see in paragraph 12 at page 82 that the Defamation Act of 1952 is amended to deal with the area of newspaper reports; and after paragraph I of the Schedule—this appears in paragraph 12 at page 82—there should be inserted the following paragraph:A fair and accurate report of any proceedings in public of the Scottish Assembly".I have endeavoured to explain the reason why those wider words exist there. They relate to unofficial newspaper statements, 731 whereas Clause 15(2) is intended to cover a different kind of publication; namely, abstracts or summaries from Assembly papers. I hope that in the light of that explanation the noble Earl may feel satisfied with the matter. However, I do not want to be dogmatic about this. This is not easy territory, and I am very willing to look at it again.
§ Lord HAILSHAM of SAINT MARYLEBONE
The last thing that anybody would wish is to be dogmatic about this rather difficult and technical subject. But I am wondering whether we have thought this through deeply enough. Perhaps the noble and learned Lord will reflect upon it, it' my noble friend withdraws this Amendment. I do not know whether he is disposed to do so.
I am slightly troubled about the words in the Bill as it stands. I agree that the words "fair and accurate" appear to be drawn from something which is rather different. I think that the noble and learned Lord has established that by reference to a later page. But what is a summary, and what is an abstract? Supposing that I, being the editor of a newspaper, publish what purports to be a summary of a document, which is a document covered by Clause 15(1)(b), that is to say a document published under the authority of the Assembly; and supposing I put in something which never was in the document.
I am not talking now about malice. I am talking simply about the mistakes which those of us who have practised in the newspaper world and in the law know are being made every day owing to the speed at which newspapers must he produced. Therefore I am not talking about malice. I am talking about a mistake. Is what purports to be a summary, but which contains something that is not in the report and is therefore not accurate, a summary at all? I am not sure that it is as easy to decide that as might appear at first sight.
I can see courts either leaving it to a jury, which is a very good way of not answering questions, or, if the presiding judaes were sitting alone, spending hours on a debate of this kind. I can see, if they did leave it to the jury, a great deal of learning as to what was capable of being 732 a summary would be necessary in order that it might be left to the jury. Supposing we take the contrary position. The first position which I put to the noble and learned Lord is, supposing they put in something which is not there, an added "not" perhaps—
§ The LORD CHANCELLOR
May I ask the noble and learned Lord for enlightenment of what he is saying. This provision relates to official reports. It does not deal with newspaper reports, with great respect. I thought that he was addressing his mind to newspaper reports at the time. Those relate to official publications of the Assembly. That, I submit, is the difference which justifies the difference of language. I do not know whether the noble and learned Lord was addressing himself to the point to which the clause is directed.
§ Lord HAILSHAM of SAINT MARYLEBONE
I do not want to be dogmatic about this, but I sincerely believe that the noble and learned Lord is wrong, and I will read to him the provision which, he says, refers to official reports of the Assembly. For this purpose, it is necessary to look back to subsection (1)(b) where it says that what shall be absolutely privileged is the publication under the authority of the Assembly of any document. We are not talking about that, but we have to look at that first in order to look at subsection (2), which we are talking about, and which says:Where the publication of any document is privileged by virtue of subsection (1)(b) of this section.That means where the publication of the document as a whole is absolutely privileged—that is to say, the publication under the authority of the Assembly of any document in toto is absolutely privileged. It goes on:the publication of any abstract from or summary of it is also privileged, unless the publication is proved to be made with malice".What it does not say it covers and what the noble and learned Lord suggests it means, though I respectfully disagree with him, is publication under the authority of the Assembly of any abstract or summary. If the noble and learned Lord will consider the matter, I think he will see that it is plain beyond peradventure.
I had first of all put to the noble and learned Lord the question as to what 733 would be the position of what purported to be a summary which put in something which was not there—for instance, an inter-gallery nod—which I have known to happen, even in official documents. But suppose the authors omit something which is vital and which is there. What is the court to say about that? Is it an abstract? I should doubt it. Is it a summary? I should doubt that. It is a distortion, and what is the court to say about distortions, whether by way of commission (the insertion of what is not there) or of omission (the omission of what is vital and is there)?
I do not think the noble and learned Lord has delved deeply enough into this problem and I am bound to tell him that, although the last thing I want to do is to bandy words and be dogmatic about this, I think that, when he said to the Committee that the publications to which subsection (2) refer had to be publications of summaries under the authority of the Assembly, he was—I say this with the greatest respect to him—in palpable error.
§ The LORD CHANCELLOR
I am of course willing to look at this again. What I said was my understanding of the matter. If it is not intended to be confined to summaries or abstracts with an official imprimatur, then I agree that there is great force in what is being said, and then, from the point of view of placing the matter ex abundanti cautela, it might he a good protective mechanism to add the words which the noble Earl has suggested. I am very willing to look at this again and to revert to it. I see the noble and learned Lord, Lord Diplock, who is a great authority in this domain, rising to his feet and I gladly give way to him.
§ Lord DIPLOCK
Unlike the noble and learned Lord, Lord Hailsham of Saint Marylebone, I am prepared to be dogmatic about this. The subsection is not confined to summaries published under the authority of the Assembly. It does, as at present drafted, include summaries published by newspapers in the ordinary way and it is possible that such a summary might be tendentious. I venture to think that the clause would be much improved by accepting the Amendment proposed by the noble Earl, Lord Selkirk.
§ The LORD CHANCELLOR
I am quite willing to do that and it may well he that, at the end of the day, I shall find that, not for the first time, apparently, I have been in error.
The Earl of SELKIRK
If, as I understand it, the noble and learned Lord is accepting my Amendment, I shall not make the remarks I should otherwise have made.
§ The LORD CHANCELLOR
What I said was that I will look at it again if the noble Earl is prepared to leave the matter there. I am not sure whether he was being gracious or was not going as far as that.
The Earl of SELKIRK
I always seek to be gracious to the noble and learned Lord, and indeed to all Lord Chancellors if I can. He talked about unofficial newspaper reports, but what will the reports be? They will be comments on Hansard; that will be the normal sort of thing. They will write what they like. It is not a question of putting in new things, if I may, with respect, tell the noble and learned Lord so; it is collecting together all the nasty things. I remember that when I was a student in Germany I saw a book which they circulated containing all the horrid things said about this country by people like Bernard Shaw and others. Seeing them all together in one book, one might have thought that this was a nation of the most appallingly depraved character. That is what I have in mind; one can collect pieces from Hansard which can give a total distortion, yet every one of them may well appear in Hansard. That is precisely the sort of thing I have in mind.
The noble and learned Lord wants to copy the Westminster pattern. Has he read the 1952 Act on defamation? The point is dealt with quite specifically there. I wonder whether he has read Part II of Lord Donovan's Report, where it is dealt with quite specifically. I cannot understand the difficulty which the noble and learned Lord appears to have. This is a normal safeguard for the Scottish Assembly—the Convention, call it what you will—and surely the noble and learned Lord is able to accept the Amendment. To do so would not damage the Bill or in any way affect Party relations.
§ The LORD CHANCELLOR
I certainly do not think it would affect Party relations; these matters are not Party questions and I hope that that element will not be infused into our debates, as it seemed to be on a recent occasion. In the circumstances, having in mind the authority of the noble Earl himself, the certainty of the noble and learned Lord, Lord Diplock, and the unusual restraint directed to the same end by the noble and learned Lord, Lord Hailsham, I am disposed now to accept the Amendment.
§ On Question, Amendment agreed to.
§ Clause 15, as amended, agreed to.
§ Clause 16 agreed to.
§ Clause 17 [Scottish Assembly Acts]:
§ 8.38 p.m.
Lord MORRIS moved Amendment No. 225:
Page 7, line 33, at end insert ("which shall have been passed before the Assembly is in being.").
§ The noble Lord said: Although I intend to speak to this Amendment very briefly, I do not wish it thought that by so doing the principle behind it lacks substance. On the contrary, I believe it to be fundamental. I shall be brief solely because it is a simple point and, as such, deserves simple treatment. The Amendment is intended to entrench the Government's view that nothing in this Bill will affect the unity of the United Kingdom or the supreme authority of Parliament.
§ Clause 17(2) as it stands sets the Scottish Assembly in direct contention with Westminster. The Assembly, by virute of this subsection, could pass an Act, which Act Parliament could reverse, which in turn the Assembly could repeal, which Act could be further repealed by Parliament, and thus initiate a hideous game of Parliamentary ping-pong which nobody could possibly win. Both Parliament and the Scottish Assembly would thus be 736 brought further into disrepute, a position which is manifestly absurd. The Amendment maintains the supreme authority of Parliament by limiting the right of the Scottish Assembly to amend or repeal only that legislation which is extant prior to the Assembly's formation. I beg to move.
§ Lord WILSON of LANGSIDE
I would support this Amendment. I am intrigued to observe that in the Marshalled List my title, such as it is, has been presented in an Anglicised form: "Lang" has become "Long". The only conclusion I can draw is that there is, among the printers, perhaps a disgruntled Scottish nationalist who wants to expose me in my true colours. As the noble Lord, Lord Morris, has said, the immediate point in the Amendment is a short, sharp one, but it raises questions of fundamental importance, and some of the questions which have led those of us who are inclined to oppose the passing of the Bill to do so. Clause 17(2) provides that,A Scottish Assembly Act may amend or repeal a provision made by or under any Act of Parliament.The only limit is that the matters with which the Assembly Act must be concerned are matters within the legislative competence of the Assembly.
It is surely understandable that if it is thought appropriate to devolve legislative power within certain areas, that power should include power to amend the preexisting statutory provisions. But surely it is quite extraordinary to extend that power to any enactment of the sovereign Parliament, albeit limited to those matters which lie within the legislative competence of the Assembly. Surely future Acts of the sovereign Parliament should be sacrosanct, and capable of repeal or amendment only by the sovereign Parliament.
Last night the noble and learned Lord the Lord Chancellor, in his speech in reply to the Amendment of, I think, Lord Monson, emphasised that Parliament, as it exists now, remains sovereign. What Parliament gives, he said, Parliament can take away. Surely it is strangely inconsistent, if not uniquely inconsistent, with that to hand over not only power to legislate in certain areas, but power to over-rule the sovereign Parliament. Surely this is a recipe for conflict and confusion; 737 and it is concern with the possibilities of conflict and confusion that has led many of us from the beginning to oppose the Bill. That it is such a recipe is so obvious as scarcely to be capable of elaboration.
I should have thought that if the Bill becomes law, future Acts of Parliament would surely take account of what is devolved and what is not devolved. There is also the question of the sovereign right to legislate in relation to devolved matters or in relation to borderline cases, which it is not inconceivable might arise under the somewhat extraordinary Schedule 10 (with which we shall be dealing in due course) and which raises such a wide range and variety of matters, from the control of stray dogs to the administration of ancient monuments.
I should like to add a few words in relation to some of the general points made against those of us who have been critical of the Bill and of the clauses. I take, for example, what was said by the noble Lord, Lord Brown; I am sorry that he is not here tonight. I thought that he suggested that if we continue with this rather nit-picking approach—if I may use so crude an expression—through the clauses in the measure, we would suffer the same kind of fate as was suffered by this country in relation to the Irish problem in the 19th century. He said, in effect, as I understood him, that we should remember Ireland, and that the nationalists would get us if we did not watch out.
I believe that it is very misleading to draw anything from the experience in Ireland in the 19th century in terms of relevance to the present situation and problem in Scotland. It would be neither relevant nor considerate to try to explore that here. It may be that it would be appropriate to do so on Third Reading. But I content myself with saying that I think it is very misleading to suggest that there is a useful guide in what happened in Gladstone's time in 1880, and the years before and after, to what our approach should be to the problem in Scotland today.
I understood the noble Lord, Lord Brown, also to deprecate what he suggested was the rather negative attitude of the critics of the Bill and of the provisions in the clauses. I think that the noble 738 and learned Lord, Lord McCluskey, on Second Reading, tended to express a similar view. He said that he deprecated what he called. I think, the negative and destructive attitude of the opponents of the measure. He said this, if I may say so, without disturbing the concordat which has been established with the noble and learned Lord and the Opposition today, rather loftily. Surely the onus is on the Government to establish to the satisfaction of Parliament that they have got it right. The noble Lord, Lord Harmar-Nicholls, in dealing with another Amendment yesterday, emphasised those matters to which it was essential to have regard if a constitutional measure was to be successful. To the matters to which the noble Lord, Lord Harmar-Nicholls, referred I would add the question of stability. Surely that is an essential quality for the success of any constitutional measure.
I hope that in what I have said in relation to this clause, and in what arises from the Amendments moved by the noble Lord, Lord Morris, we have another illustration, if further illustration is needed, that constitutional stability is not what is going to be provided. I do not know how the noble and learned Lord, Lord McCluskey, will answer the Amendment, but in closing I express the hope that his answer will be more effective than that given by the Minister of State in the other place when a somewhat similar Amendment was moved. He said at the outset—and I quote from column 271 of the Official Report for 29th November—when an Amendment to similar effect had been moved:Before the hon. Member impales himself too firmly on the horns of a dilemma, I must say to him that if this Parliament wished to repeal an Act of the Scottish Assembly it could entrench the position and ensure that it could not happen again.In conclusion, I can only say that I hope the noble and learned Lord's answer tonight will be more effective than that, because, if it is not, I would hope that the Committee might wish to divide on this issue.
§ Lord McCLUSKEY
As I am invited to reply on this, perhaps I should try to put the matter as briefly as I can. First of all, perhaps I may direct attention to another Amendment, No. 76, where I think points which are related, though 739 different, may be raised. They are raised in the context of Clause 18, which is concerned with legislative competence, and it may be that certain of the matters which concern the two noble Lords who have spoken will arise there and we can discuss them more fully there.
In relation to this matter, may I say that the whole point of devolution is to allow the Scots to manage their own affairs to the extent set out in the Bill; and the Bill defines with great precision—indeed, some people fear with too much precision, but certainly with great precision—what it is that the legislative Assembly in Scotland may do. Its competence to legislate is, as I say. defined with great precision. Legislative competence within what is devolved embraces the power to adopt existing legislation, to amend existing legislation or to scrap existing legislation and replace it with something quite different. To deprive the Assembly of any power to amend or repeal Acts of Parliament passed after devolution would operate, in our view, as a large, vague and dangerous derogation from devolution.
Let me put the argument in a nutshell. I hope it will satisfy the noble and learned Lord, Lord Wilson, though, from what he has said, it may not. The Assembly is to have legislative competence in relation to devolved matters. When we come to Clause 18 and the related Schedule, we shall see that; and I hope that that will be discussed at length when the noble Viscount, Lord Colville, moves his Amendment, and indeed when we discuss Clause 18 in general. If, after devolution, the Westminster Parliament passes an Act of Parliament on a devolved matter, this will usually be by agreement with the Scottish Administration, who need not therefore be prevented from amending it later. But, if for some reason it is intended here in Westminster to pass an Act which relates to a devolved matter and to protect the provisions in the Act which deal with that devolved matter from being amended by the Assembly, then there is no problem whatsoever in so writing that Act that it itself provides explicitly whatever protection is intended—and I am happy to notice that the noble Viscount, Lord Colville, is nodding his head in agreement with me. There is no 740 problem in that, and it is well precedented. I am sure I do not need to give to lawyers of distinction, including the noble and learned Lord, Lord Wilson, and others, a great list of precedents on that; and if I am wrong the Committee is full of noble and learned Lords who will contradict me.
The consequence of accepting these Amendments would be that virtually all Acts of Parliament which deal with or touch on devolved matters will require stock provision to the effect that, notwithstanding the Amendments sponsored by the noble Lords, Assembly Acts may amend or repeal their provisions so far as they deal with matters falling within the Assembly's legislative competence. And, even in those probably rare cases where protection is wanted, something a great deal more sophisticated than this Amendment to Clause 17, which I suspect is the wrong clause, would surely be needed. The Amendments would therefore be ineffective where protection is wanted, and perhaps an irritant where it is not.
I shall give just one example in case that rather generalised explanation is not clear to those who are not lawyers. It may well be that, subsequent to the passing of this Bill and its arrival on the Statute Book, the Westminster Parliament may choose to consolidate a number of statutes, some of which contain provisions relating to devolved matters. Now the two noble Lords who have spoken would not have challenged, and do not challenge by this Amendment, the competence of the Assembly to alter the Act which has been consolidated, but they challenge the competence of the Assembly to alter the consolidated Act. That is a plain instance, and I think one which lawyers and non-lawyers alike can understand. If I am wrong, I sincerely hope that the noble and learned Lords who have been listening to this argument will contradict me. I would ask the two noble Lords to reconsider the position and certainly not, as I understood from the noble and learned Lord, Lord Wilson, threaten to divide the Committee at this time of night and in these circumstances.
§ Lord HAILSHAM of SAINT MARYLEBONE
I certainly do not want to contradict the noble and learned Lord; and, equally, I share his desire that this matter should not, at any rate at this stage 741 of the Bill, be pushed to a Division. Nor do I want to anticipate what my noble friend Lord Colville of Culross (on whom I was very glad to see the noble and learned Lord had bestowed a silk gown only the other day) will say about his second Amendment. I am inclined to agree, I must say, with the noble and learned Lord, Lord McCluskey, that, in the form in which the Amendment moved by my noble friend Lord Morris is tabled, it would be destructive in practice of one of the main purposes of the Bill.
I think that is right; because, as time goes on—and we have seen it happen, have we not, in relation to the North America Act 1867?—the law as it existed at the time of the passing of the Act, and therefore, for this purpose, at the time of the creation of the Assembly, diverges more and more from what it was. That is inevitable. It has become an accelerated process nowadays, when we pass over 3,000 pages of legislation a year. Therefore, it is in practice, or it would become in practice after five or six years, totally impossible for the Assembly to carry on any kind of legislative activity at all within its devolved sphere if in fact it did not have the power to amend Acts of Parliament which had been passed in the interval; and, if the thing really lasted for 100 years, like the North America Act 1867, the situation would become perverse to the point of being intolerable. So I think the noble and learned Lord, Lord McCluskey, made an absolutely valid point when he said that.
But there is an underlying difficulty which I am not sure the Bill, either as it would be amended or as it is now, deals with. It is this. It is very easy to say that a legislative Assembly has the power to amend or repeal Acts of Parliament. Of course, if they intend to do so and say that they are going to do so—if they say, "This Bill repeals or amends such and such an Act of Parliament in the following respects"—it is very easy to see what they have done; but it is extremely difficult in practice, as noble and learned Lords on the Cross-Benches will recognise, to know what is intended when it is done by mistake or by inadvertence. All the time one is asking oneself whether subsection (3) of Section 4 of Act No. 125 has amended paragraph (d) of subsection (3) of Section 42 of Bill No. 102, passed ten years before.
742 There must be, I think—and it is one of the major troubles of our legislative process at the moment—some guidance given to the courts as to what is to happen when two Acts are found to diverge in practice as a result of a situation which has subsequently occurred after the passing of the second Act. This is not at all an infrequent occurrence.
In fact, this is difficult enough when dealing with Acts of Parliament at the same Assembly in Westminster but when there are two separate Legislative Assemblies at work concurrently, I think it is going to be a very difficult matter unless it is dealt with absolutely plainly and spelled out in the legislation. This is one of the difficulties that one constantly finds in the argumentation about human rights. Is an Act of Parliament intended to abrogate a human right? Obviously, if it intends to do so and says so in plain language then the courts have no difficulty. If it does so by mistake and the courts are being asked to say that it did intend to do so by implication, then the matter becomes extremely difficult.
The trouble about all legislation is that it acts prospectively except in the rare cases where retrospective legislation is introduced. The trouble about all litigation—and the courts will be discussing litigation if this Bill comes into law—is that it always acts retrospectively, after a situation has occurred. It is absolutely impossible, in my experience, with all the wisdom of the Parliamentary draftsmen and all the skill of Ministers and all the apparatus of Committees, to foretell in detail the actual case which is going to happen. And when the actual case occurs the judges—poor dears!—must then look at the Acts of Parliament and try to make sense of them. Sometimes they get it wrong but occasionally they get it right. I am sure that some of them would much prefer to be told on what principles they were supposed to act.
§ Lord McCLUSKEY
Before the noble and learned Lord sits down, would he agree that the serious point that he made latterly is a point which we can probably discuss in the context of Amendment No. 76?
§ 9.3 p.m.
§ Lord WILSON of LANGSIDE
Might I intervene before the noble Lord, Lord 743 Morris, indicates whether he wishes to depart from this Amendment. I see the force in what the noble and learned Lords, Lord McCluskey and Lord Hailsham, have said. This matter must be considered in the context that the Government have said—and have repeatedly emphasised; and, indeed, at one time had a clause in the Bill which said—that the sovereignty of Parliament would not be impaired. How can you say that the sovereignty of Parliament is not impaired if, in effect, you have set up what was described in the other place as a "rival Parliament"?
Let me point to the illustration which was given in the other place. Supposing you have an Assembly at Edinburgh dominated by the Labour Party (of which for many years, over 40, I was a member) determined to abolish the provisions for private health and private education—quite a possibility. On the other hand, you have a sovereign Parliament dominated by the Conservative Party determined in the opposite direction: that private education and private health facilities will be extended. What is going to be the outcome? There is no use the Government saying, "You are just foreseeing difficulties. We cannot provide a perfect Bill. There will always be difficulties and problems and we shall have to iron them out." That is not good enough.
This is a position in which the Government have said that Parliament is sovereign. I can quite understand and have some respect for the position of the Scottish Nationalists. In that situation, they say, "If the Scottish people want it, then they should have no private education and no private arrangements for the care of health." That is an understandable position. What I find impossible to understand is, on the one hand the Government assuring us that the sovereignty of Parliament is unimpaired when, manifestly, what they are doing is setting up, as I have already said—and I will not say it a third time—a rival Parliament. That is the only point I want to make. It is for the noble Lord, Lord Morris, to decide whether or not he will withdraw his Amendment.
§ Lord McCLUSKEY
I hope that in deciding he will take the true view of the nature of sovereignty. The concern here 744 is with legislative sovereignty. There is no doubt that there is nothing in this Bill which detracts from the competence of the United Kingdom Parliament to pass a provision—and I am not trying to draft it —to say: "Notwithstanding anything contained in the Scotland Act 1978 the Scottish Assembly shall have no competence to repeal the provisions contained in Section 1, Section 19 and Section 24 of this Act." As I say, I am not trying to draft it, but it is obvious to any lawyer that that can be done. There is no attack on the sovereignty of Parliament. Subject to the point raised by the noble and learned Lord and by Amendment No. 76, we will come back to this. I hope that the noble Lord, Lord Morris, will not feel disposed to press this matter in the light of these explanations.
§ Lord WILSON of LANGSIDE
I have implicit knowledge of what the noble and learned Lord, Lord McCluskey, has said. What I say—and what those who oppose the Bill, largely on the same grounds as 1, say—is that this will inevitably lead to conflict. Consider what the reaction in Scotland will be in that situation.
I am grateful to the noble and learned Lord, Lord McCluskey, for his assistance. May I ask whether he will be good enough to show his hand with regard to Amendment No. 76?
I refer to the Amendment tabled by my noble friends Lord Colville of Culross, and Lord Mansfield. Should he feel able to agree to this Amendment, this will emasculate Clause 17(2) and, in view of that, I should be happy to withdraw the Amendment.
§ Lord McCLUSKEY
Sufficient unto the day is the goodness thereof. I shall deal with Amendment No. 76 when I reach it. I notice that the noble Viscount, Lord Colville of Culross, shook his head in disagreement at the suggestion that the Amendment would emasculate anything in the Bill. I do not think that; he does not think that. I do not propose to search through my folders for an Amendment which I predict we shall be arriving at on Tuesday afternoon the 18th April 1978.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 72 not moved].
§ 9.8 p.m.
Viscount COLVILLE of CULROSS moved Amendment No. 73:
Page 7, line 40, at end insert ("except on the grounds that the provisions of standing orders made under sections 23, 25, 27 and 28 below have not been complied with").
§ The noble Viscount said: We are all very anxious to get on to the meat and substance of Clause 18, and we are all longing to hear the noble and learned Viscount, Lord Dilhorne, and the noble Lord, Lord Home of the Hirsel. But perhaps we may pause for one moment on the provisions of Clause 17 (4). I hope,if I may say so, that this is not picking a "Wilsonian nit". It is calling attention to the status that has been accorded to certain—and only certain—standing orders under the Bill. I am by no means in favour of litigation about the way in which the Assembly chooses to pass its legislation or indeed its subordinate legislation, if we must have such a thing.
§ I would not myself have joined in an Amendment to leave out subsection (4); but what I find a little strange is that the Government have chosen in Clauses 23 to 28 to spell out specifically particular provisions for standing orders and to make them compulsory. It is perfectly plain from the drafting of those clauses that the standing orders that are there specifically mentioned are not to be the totality because they are only a selection. But why have they been picked out? If they have been picked out in the Bill, do they not automatically attain a certain status which will not be accorded to other standing orders that are going to be made, presumably by the inherent jurisdiction of the Assembly itself?
§ If they are so important that they require to be specifically stated in the Bill, why so? What is to be the juridical effect of so doing? They are indeed, I would have thought, very important matters, but they cannot be the only important matters that are to be dealt with by standing orders. It therefore occurred to me that there was some particular significance in them which caused the Government to consider 746 it to be necessary to state them particularly in the way that they have. If that is so and if we are, for instance, to have a provision in Clause 27 that money provisions in Scottish Assembly Bills must have the authorisation or recommendation of a Scottish Secretary and, for one reason or another, such recommendation is not granted and the Bill is passed, is the drafting of the Bill correct in saying that that matter, having been required as a matter of law in Clause 27, is nevertheless to be totally disregarded in the event, it the standing order is not complied with? I hope that the noble and learned Lord sees my dilemma in this matter.
§ I should not have had any difficulty with Clause 17(4) if the provisions as to standing orders had been wholly general. If they had said: "The Assembly shall make standing orders to govern its proceedings", then I should have thought that Clause 17(4) was wholly acceptable. But that is not so if there is a statutory requirement that certain procedural matters shall be complied with, as is the case at present in these clauses. Pecuniary interests are no doubt a difficult but nevertheless essential matter. That matter is dealt with in local government legislation. So be it. But why pick this one out? What happens if the whole thing goes wrong and if there is corruption? Heaven forfend that such a thing should occur!
§ Those are two examples which I have picked upon where, under the way this Bill is drafted, something would be expected to happen if standing orders are not complied with because it is a special standing order. I put this Amendment down to test the situation and to see whether the Government can explain why they have picked these particular subjects out for standing orders, and what they suppose is going to be the effect of non-compliance with the standing order so provided statutorily. I beg to move.
§ 9.12 p.m.
§ Lord McCLUSKEY
May I first of all deal with the general effect of a provision on the lines proposed by the noble Viscount and the noble Earl, Lord Mansfield, in Amendment No. 73. The Government's intention (which I think is plain) is that Assembly Acts should be susceptible to post-assent judicial review—that is the matter that we will be con- 747 sidering shortly—but only on the ground of vires. It is thought that it would not be in the public interest if, as the Amendment would seem to involve, an Assembly Act could be struck down—and I do not want to make any technical points—during a period of years after it had been passed, simply because, for example, a Member had taken part in a debate without disclosing his pecuniary interest.
Of course, it is important that these standing orders should be complied with, but the degree of uncertainty which would be created in relation to the standing and legal effect of measures which have been passed and which were susceptible to this kind of challenge would be out of proportion to the importance of not complying with a standing order. I may say—again, I am not seeking to make a technical point—that No. 28 is perhaps the odd one out because, although the others are mandatory, 28 is purely permissive. There is a related point.
Viscount COLVILLE of CULROSS
With respect, the reason why I put in 28 was that it brings in a collection of complicated machinery under the 1936 Act, and if something went wrong with that I was suggesting that implicitly we had a standing order which had not been complied with.
§ Lord McCLUSKEY
It was wrong of me to treat the Amendment as anything other than a probing Amendment, so I will not seek to make any other point of that kind. May I mention, however, that this kind of Amendment would allow—would it not?—the possibility, as we have seen in at least one case in recent years, of an attempt to interdict or, to use the English term, to take an injunction against the legislative body before it reaches the stage of passing the Bill: in other words, to stop proceedings taking place. That would be highly unfortunate and would lead to a lot of litigation and a lot of uncertainty.
On the general point of post-assent judicial review, I may say that the Government have taken the line which is manifested in the Bill. It has been criticised even for going so far and it would certainly be criticised for going to the extent of allowing the measures of the Assembly to be challenged on this kind of ground. It would have been possible for the Bill to 748 contain model standing orders—perhaps not even model standing orders but to say, "These are the standing orders and the Assembly shall have them until they choose to alter them", or something of that kind. That method was not adopted, but the view was taken that standing orders were essential and one had to make provision for them.
The view was also taken that certain matters were of such importance that they should be made mandatory. The mandatory standing orders are those required by Clauses 7(1), 23, 25 and 27 for essential matters. They make explicit those things which are seen to be imperative. I should draw attention to Clause 7(1), which is the important one that makes it clear that the Assembly has power to make standing orders. It also contains the provision that we looked at earlier, allowing the Secretary of State to give directions for regulating its procedure pending the making of standing orders.
Clause 7(2) provides for mandatory standing orders for the election of a presiding officer. The view was taken that the Assembly must have a presiding officer, and to that extent the United Kingdom Parliament is laying down part of the structure of the Assembly: but I hope it will not be tought that the United Kingdom Parliament or the Government were seeking to go too far in that. It seemed desirable that that feature of the United Kingdom Parliament should be taken to the Assembly.
Clause 23 provides for mandatory standing orders for securing certain provisions, which are listed in Schedule 6, in Assembly Bills to secure the Crown's consent. Again, I think that is a perfectly understandable provision and I need not take up too much time on it at this time of night. One might have left Clause 25 but, having regard to the history of these matters in the other place in recent years, it was decided that Clause 25 should provide for mandatory standing orders for the disclosure of Members' pecuniary interests in any matter before taking part in proceedings dealing with that matter. The sanction there is that subsection (2) of Clause 25 provides for a fine not exceeding £500 for any contravention of standing orders made under this clause.
Clause 27 provides for mandatory standing orders that ensure that the 749 financial initiative for Bills rests with a Scottish Secretary. Clause 24, I might mention, provides that standing orders may include provision for preserving order, because it might have been doubtful whether the Assembly had that power unless it was specifically given. The standing orders may also include provision for the exclusion of Members from the proceedings.
These mandatory standing orders, as I have said, make explicit that which is regarded as essential, and standing orders are chosen as the means of achieving what is necessary rather than substantive provision in the Bill, because the substance and detail of what is required would have to be embodied in the standing orders. As to the permissive standing orders covered by Clauses 24, 26 and 28, provision is made for that just to make it clear beyond doubt that the matters there referred to can be covered by standing orders.
Clause 26 puts beyond doubt the Assembly's ability to appoint committees with functions relating to any devolved matter. I was asked to consider what would be the effect. I think that one has to look at each individual mandatory provision and to consider how likely it is that there would be some departure from the standing orders. If we take, for example, Clause 23, that provides for mandatory standing orders for securing that certain provisions receive the Crown's consent. It is rather difficult to see that these mandatory standing orders would not be complied with, when one considers the kind of watch over the Assembly's proceedings that is bound to be taking place. Clause 25, relating to pecuniary interests, provides a sanction in the form of a fine. Clause 27 is rather important. It is difficult to believe, if there were mandatory standing orders ensuring that the financial initiative for Bills rested with the Scottish Secretary, that these would be departed from.
At the end of the day, except in the case where there is a fine provided, the sanction is that the standing orders must be there, that the officers of the Assembly, the political opponents in the Assembly and others, both inside and outside, who have to watch its proceedings, will seek to ensure that the standing orders are enforced if they are there. If they were 750 not, one could consider the suggestion contained in the Amendment that the facts should be challenged. But, for the reason I gave right at the beginning, it is thought that that would be too extreme; that would be too high a price to pay. Accordingly, I suggest that the provisions in the Bill should be accepted as they are.
§ 9.23 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
May I ask the noble and learned Lord one question arising out of this? My noble friend would probably wish to accept what the noble and learned Lord has said about the Amendment in this interesting discussion, which was worth having. It may be that I am raising an unnecessary point, but I am not sure that I am. Subsection (5) of Clause 17 provides that every Scottish Assembly Act shall be judicially noticed, and of course this is absolutely right. In fact, by, I suppose, the law of Scotland and by, I believe, the law of England, when you get an Act of Parliament there is an ultimate test of what the Act says. Of course, one normally takes the King's printer's copy. There are occasions when there is a misprint in it, and if you are faced with a problem you can go to the Parliament Roll and look at the Act of Parliament and see what it says on the Parliament Roll, whatever that may be.
In other words, it is possible, if a dispute arises as to what an Act of Parliament says, just as you can look at the standard yard or the standard metre in the Physical Laboratory, to look at the Parliament Roll and see what the Act of Parliament says. I am not sure that in this Bill there is any provision of a similar method of certainty and authentication in relation to an Act of the Assembly. If there is a dispute as to whether a certain phrase in the King's printer's copy, or the Queen's printer's copy, or whatever it may be, is a misprint or is genuine, what is to be the ultimate test of what is an Act of the Assembly?
§ Lord McCLUSKEY
I think that the correct answer to that is, first, as the noble and learned Lord has said, that the Bill does not provide for it; and, secondly, the ultimate test would be the test which the court would determine. Of course, that may not be a satisfactory answer, because the noble and learned Lord may want his answer within the Bill. But I 751 can only then say that one envisages, assuming that this is a responsible Assembly, which is an assumption that I am certainly happy to make, that the Assembly itself will devise some method whereby it presents to the Secretary of State—and we shall come to clauses dealing with that—a Bill which it has passed. It may be that that will be the Bill which will, as it were, be the master copy which the court would require to look at in the event of some dispute as to the true content of the Bill.
§ Lord HAILSHAM of SAINT MARYLEBONE
I do not think that this can quite be left to the court to decide. I was hoping that the noble and learned Lord would draw my attention to subsection (3) of Clause 17 and say that the copy of the Order in Council actually signed by the Queen in the Privy Council would be the master copy. But I feel that this ought to be put beyond peradventure.
§ Lord McCLUSKEY
I am happy to have the help of the noble and learned Lord. That is the answer which I should have given and I am happy to acknowledge that I should have given it. Therefore I now give that answer and, as the noble and learned Lord suggested it to me, I hope that he will be satisfied with it.
§ Lord DRUMALBYN
I should like to raise what is perhaps a rather disagreeable point: that one must look at the possibility that the Assembly and its procedures will not work in the way that the noble and learned Lord foresees. As we have seen, all kinds of things can go wrong in Assemblies all over the world. People go into secret session. Procedures are evaded. I have no doubt that the Scottish Assembly will be staffed by people who are experienced, and who will probably have obtained their experience in this Parliament, and that they will do their utmost to ensure that the procedures are carried out.
Procedures are very necessary indeed for the maintenance of freedom and for ensuring that Bills go through all their stages properly and that the voting and all the rest of it is properly conducted. This may not always happen. One cannot be sure that it will. I feel that 752 there ought to be some way in which one may challenge a Bill of this kind if it has not gone through the proper procedures. The kind of case I am postulating would probably not be unaccompanied by a certain amount of violence. One cannot altogether exclude this possibility. Nevertheless, a Bill would purport to be a Bill and in some circumstances it might be presented to the Secretary of State as a Bill which had been duly passed by the Assembly. It seems to me that in its infant stages there ought to be some safeguard, although, quite frankly, I do not know what it should be.
§ Lord McCLUSKEY
May I urge upon the noble Lord this point. When one looks at Westminster, the courts do not seek to go behind what happened before a Bill went on to the Statute Book, having obtained Royal Assent. It is properly assumed that Parliament, as a body which is subject to certain safeguards of public scrutiny, of political pressures and so on, can responsibly look after its own procedure. I cannot imagine that the noble Lord is suggesting that the Scottish Assembly, by whatever method it is elected, will be any different in that respect. Under the provisions of this Bill, the Scottish Assembly will be a body which from time to time has to go back to the electorate. It will be unable to change that fact. It will be staffed in the manner suggested and there will always be some people in Opposition and, one hopes, some people in either an independent or Cross Bench position who will scrutinise what happens. These are the real safeguards. I accept that one could make it perfect by subjecting measures to the scrutiny of the courts, but to make perfect that which in this Parliament is made good in other ways would be a terrible price to pay. May I ask the noble Lord to accept that on a proper balance and making not an optimistic but a realistic assessment of what the Scottish Assembly will be like, this is a sufficient protection?
§ Lord HAILSHAM of SAINT MARYLEBONE
I was so successful last time that I am going to make another suggestion to the noble and learned Lord. If he looks again at subsection (3), perhaps he will agree that it is a more complete answer to what was put to him than the answer which he gave. Surely the con- 753 stitutional position is that the measure will go through the Scottish Assembly in one way or another. Of course there may be irregularities—one does not know—and subsection (4), which is what we are discussing, says that the courts are not to look at any irregularities there may have been in the stages before it becomes an Act, but at the end of the day it must be passed by Her Majesty in Council.
What this means—and in this respect I speak as a former Lord President—is that it has to be processed through the central Government machine at Westminster. It does not alter it, any more than the central Government at Westminster under the Lord President's office alters the various orders which are made for the closure of burial grounds which we do by the dozen every week, so far as I remember. But in fact it is the business of the Lord President's office and, although it is not a very onerous ministerial duty, it is a very important function in the constitutional machinery of the United Kingdom that those things are gone through with a great deal of care; and the reason the Lord President is there is to put ministerial responsibility on to what is done. Once it is said that the thing should be done by Her Majesty in Council what you are saying is that there is a Lord President in one House of Parliament or the other and that if there is a technical flaw in what has been done it can be challenged in Parliament on the basis of the ministerial responsibility of the Lord President of Council. I feel sure that this would be upheld in either House wherever the Lord President happened to be.
§ Lord DRUMALBYN
I am much obliged to my noble and learned friend. I entirely accept that the intentions are wholly good, and I am only talking about an outside chance of what might develop, probably not immediately, but at some time or another. I entirely accept what both noble and learned Lords have said. I merely thought that I ought to raise this point to see whether there was any particular thing which could be put into the Bill. After all, in the sort of circumstances that I am postulating, in practice it would be virtually impossible for the Lord President to investigate what had happended. Here would be a Bill that would come up to him and, in those circumstances, he could only either take it at its 754 face value or reject it out of hand. But this is a long shot, and I am prepared to leave it at that.
§ 9.33 p.m.
Viscount COLVILLE of CULROSS
It may be a long shot, but I think this discussion has opened up a number of things about which the Government may wish to think a little further, and I certainly shall think about them. On the question of what is the definitive Act of Assembly, I do not think that for all purposes the Act as approved by Her Majesty in Council will do, because at an earlier stage we must have the possibility of the Bill being dealt with under the over-ride powers of, for instance, Clause 35. In order to be able to do that there must be a definitive Bill with which to deal. Therefore it seems to me that one of the things that will have to happen is that the standing orders of the Assembly will have to provide for there to be the equivalent of what we have in this Parliament; that is to say, the one and only true copy of the Bill signed by the Clerk of the Assembly, or something of that sort, which shows exactly what it is in the only unchallengeable form which has got to that stage, and can then further be processed, as necessary, under the Bill. That is one thing that I think probably will have to be dealt with by standing orders.
Then we are faced with the problem of what happens if there turns out to have been an irregularity. Let us assume that it is a notorious irregularity so that there will be no difficulty about a Minister at Westminster knowing about it; it will be common knowledge. The mere fact that there has been an irregularity in procedure is not something which, under Clause 35 as it stands, can be the subject of over-ride powers, because if the Government insist upon the word "and" between paragraphs (a) and (b) there would not necessarily be a situation where the over-ride powers would come into effect, even if to pass the Bill subject to the irregularity was patently not in the public interest. Therefore, that will not do, as the Bill now stands.
It seems to me, therefore, that the only possibility is that which my noble and learned friend has suggested, because, 755 let me say at once, I do accept the explanation of the noble and learned Lord, Lord McCluskey, that it would probably be wholly unreasonable and unsatisfactory to deal with this by way of private litigation in the courts. Therefore, we have got to look to see whether the irregularity can be picked up and dealt with under the procedure of presenting these Bills by way of Order in Council. I, frankly, do not know enough about this.
I suspect that the noble and learned Lord would like to think about it, to make sure that there really is power to reject a Bill notwithstanding that it is not subject to override powers, is wholly concerned with matters within thelegislative competence, and is in every other respect wholly impeccable, but which is a Bill which everybody knows is subject to a procedural irregularity which cannot be allowed to persist. If the only protection is the one which resides in the Lord President of the Council in his or her advice to the Monarch, then I am not sure we know enough about it at this stage to leave it forever, but I am certainly happy to leave it for tonight, if the noble and learned Lord would like to consider that matter and see whether it is a complete answer.
§ Lord McCLUSKEY
May I say, in one sentence, that my advice was to the effect to which the noble and learned Lord spoke in relation to Clause 17(3). I did not mention that argument because I wanted to advance the other argument. In the light of what has been said, I will look at that advice again.
Viscount COLVILLE of CULROSS
I think that is a very satisfactory situation. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 17 agreed to.
§ Clause 18 [Legislative competence of Assembly]:
§ 9.37 p.m.
Viscount DILHORNE moved Amendment No. 74:
Page 8, line 1, leave out from ("law") to end of line 3 and insert ("in Scotland when it has been approved by Her Majesty in Council.").
§ The noble and learned Viscount said: My noble friend Lord Home and I have put down this Amendment to raise a question which we consider to be one of very considerable importance. It does not concern what happens during the course of the passage of a Bill through the Assembly, but it is a question relating to the status of the Assembly itself and the effect of an Assembly Act. I think one can put the question quite simply in this way. Is an Act of the Scottish Assembly to have in Scotland the force and effect of an Act of Parliament, or is it to be just a piece of very subordinate legislation, the validity of which can be challenged in the courts at any time? That is, as I say, what the Bill proposes and what my noble friend Lord Home and I think is wrong—wrong because we feel it will give rise to all sorts of difficulties and friction, difficulties so great that the proposals in this Bill, if enacted, are not likely to endure for very long, for the difficulties will lend support to the view that nothing less than complete independence for Scotland will do.
§ May I remind the Committee that, under the Bill as it stands, only when a Bill has been passed by the Assembly—that is, by the elected representatives of Scotland—can it be referred to the Judicial Committee if it is felt that the Assembly is not competent to pass it. The question of competence is different from the question we have just been considering. If the Judicial Committee comes to the conclusion that it is not within the competence of the Assembly, Clause 19, which we are not now discussing, does not permit the Secretary of State to submit it for the Royal Assent.
§ I should like to refer for one moment to the speech of the noble and learned Lord, Lord Hailsham of SaintMarylebone. I was interested to hear him say that the duty of submitting Assembly Bills for the Royal Assent would rest with the Lord President of the Council. The implication of Clause 19 is, I think, quite clear; namely, that it will be the duty of the Secretary of State to submit an Assembly Bill for the Royal Assent and not the duty of the Lord President at all, because Clause 19 provides that, in certain circumstances, the Secretary of State shall not submit the Bill.
§ However, I want to make the point first of all that the passage of the Bill through 757 the Assembly may take a very long time, involve a great deal of work and, as the Bill now stands, only after it has been passed can it be found out, on a reference to the Judicial Committee, whether or not the time of the Assembly has been wasted. That is a defect which later Amendments seek to rectify.
§ If the matter is referred to the Judicial Committee and after hearing arguments the Judicial Committee holds that the Bill is within the competence of the Assembly, one might perhaps think that the Bill would provide that that would be the end of the matter. The Bill can then receive the Royal Assent and one might think that that would certainly establish the unchallengable law of Scotland. However, if one thought that one would be wholly wrong, as the Bill now stands. It would be the law of Scotland only so long as it is not successfully challenged in the courts and that challenge may take place at any time. It may be years after the Act has passed, years after it has been in operation and years after it has been treated throughout Scotland as the law of that country.
§ That is welcomed by my noble and learned friend Lord Fraser of Tullybelton and I recognise that he is not alone. I must confess to a little surprise at finding myself advocating a higher status for the Assembly than that which a Scotsman wants it to have. However, I am glad to have the support of my noble friend Lord Home of the Hirsel, of the Law Society of Scotland and also of my noble and learned friend Lord Morris of Borth-y-Gest who regrets that he is unable to be here tonight to speak in support of this Amendment.
It has been said earlier in these debates that an Act of the Assembly shall be subordinate legislation. Of course, that is true and that is why it is said that it should be challengeable in the courts. However, that does not follow. I refer noble Lords to the Simonds edition—not the Hailsham edition, because I do not think we have got to that—of Halsbury's Laws of England. One finds, in volume 36 that it is stated that in modern Statutes:
it is not uncommon for provision to be included which purports in terms to limit the jurisdiction of the courts as, for example, by specifying a period within which orders made under them may be challenged on the grounds that they are not within the enabling power or that any requirement of the Statute has not been observed and pro
hibiting the questioning of such orders thereafter in any legal proceedings whatsoever".
In other words, it is not uncommon in a modern Statute to find the jurisdiction of the courts to declare a piece of subordinate legislation to be limited and, I believe, in some cases it is ousted entirely. Sometimes a Statutory Instrument cannot be challenged in the courts after six weeks and, as we know, a challenge in Parliament to a Statutory Instrument has to be made usually within a very limited period.
§ That is the position which may exist with regard to an order being made by a Minister. But under this Bill, as it now stands, the validity of an Assembly Act can be challenged in the courts at any time. It is all very well for my noble and learned friend Lord Fraser of Tullybelton to say, as he did during the course of the Second Reading debate, that an Assembly Act will be subordinate legislation of a specially dignified kind. It will be subordinate legislation, however dignified, of a very inferior kind, although given the name of an Act.
§ It is said that this is necessary and desirable so that any Scotsman living in Scotland will be entitled to say—and be entitled to say it at any time—that an Act of the Assembly or the Parliament of Scotland is not binding upon him.
§ Years, it may be, after the Judicial Committee has said that a Bill is intra vires the Assembly, years after it has received the Royal Assent, a citizen of Scotland must, it is said, be able to challenge the validity of the Act and he may be able to fight his case up to your Lordships' House. If he succeeds, what will happen then? People may have been prosecuted and sent to prison for breaches of what is regarded as the law of Scotland until a decision of this House, in its judicial capacity, is made. They may have had to pay large sums in damages—one does not know.
§ But what is to be done about them if, years after the Act is passed, it is held that it never was the law? The Bill is entirely silent about that. Of course there must be safeguards against the Assembly legislating in fields in which it is not competent. Those safeguards are provided in Clause 19. My noble friend Lord Home of the Hirsel and I seek to strengthen them. But if those safe-guards work as they should, they should 759 prevent a Bill which contains provisions beyond the competence of the Assembly from receiving the Royal Assent.
§ However, having regard to one of the Schedules, I recognise that something may slip through that filter. Sometimes it may be difficult to decide whether a minor provision is just within or just without the competence of the Assembly. If something of that sort happens to slip through, would it really matter whether it is treated as part of the law of Scotland? Would it not be far better to let it be so treated, than to have every Act of the Assembly always challengeable in the courts, with all the uncertainty, friction 760 and litigation which would result, which would be likely to benefit only a limited class of individuals North of the Border?
§ If we are to have a Scottish Assembly with power to legislate for Scotland, I suggest that we should see to it that there should be no uncertainty about the effect of what it does. Let us give it power to make laws for Scotland which are certain. Let an Assembly Act, passed by the elected representatives of Scotland, be an Act for Scotland—as unchallengeable once it has the Royal Assent as an Act of Parliament. Do not treat that Act of the Assembly, as the Bill now does, as if it was just a by-law passed by a borough council. I beg to move.761
§ 9.50 p.m.
Lord HOME of the HIRSEL
I shall not detain the Committee for more than a minute because my noble and learned friend has put the case for this Amendment as well as it could be put, and far better than I could express it. One of the anxieties about this Bill is that it includes too many areas of uncertainty, and too many possibilities of friction between the Edinburgh Assembly and the Westminster Parliament. In Clause 19, my noble and learned friend and I have tabled a number of Amendments designed to reduce that friction so far as is possible. I hope that when we come to that clause, the Government will be able to accept some of those Amendments. I rather wish that we could have discussed Clauses 18 and 19 together because they are relevant to each other.
I shall not repeat anything that my noble and learned friend has said because I am not versed in the law, except to say that I think that, if an Act of the Assembly has been declared by the Judicial Committee of the Privy Council to be intra vires, that if it has passed the Assembly in Scotland, that if it has also received the Royal Assent, then it seems to me that that should be the law of Scotland and it should not be able to be challenged by any individual in the courts. That is really the quite simple case, though I am not sure that "simple" is the right word, because nothing that has any legal connotations is at all simple, as we learned this evening in this debate.
Nevertheless, when it has gone through all those processes it would diminish the status and dignity of the Assembly if it were to be challenged in the courts by any individual for any time, as far as I could see, in the future, and right ahead as far as anyone can see. I should like to support what my noble and learned friend has said. I believe that this would diminish the dignity of the Assembly, and I hope that the Government will respond to my noble and learned friend's appeal.
§ 9.53 p.m.
§ Lord DIPLOCK
As regards most of the Amendments which are to be moved to this Bill by my noble and learned friend Lord Dilhorne I am an enthusiastic supporter in so far as they relate to a review 762 of the legality of legislative or administrative action by the Scottish Assembly, or the Scottish Executive. But as regards this particular Amendment—and I am only speaking to this—I am an equally enthusiastic opponent. Its effect is to give the Secretary of State the right to determine that an Act of the Assembly is within the latter's power, and to do so to the exclusion of any judicial authority at all. That, in a Constitution, is in my view a negation of the rule of law.
My noble and learned friend referred to the difficulty—the impracticability—of allowing Acts of the Scottish Assembly to be challenged after they had been passed. That is a position which exists in every federal Constitution—in Australia, in Canada, in the United States of America—and they have survived very well without chaos and disaster. Nearer home, it has been the position that existed with regard to Acts of the Parliament of Northern Ireland until direct rule came in a few years ago. There is nothing remarkable, there is nothing disastrous, about that.
It is said that it can safely be left to the Secretary of State to decide whether he wants to refer an Act to the Judicial Committee of the Privy Council or not, or whether he will let it through on his own say-so. The provisions for the distribution of powers between Parliament at Westminster and the Scottish Assembly provided for in this Bill are the most complicated I have seen in any Constitution which I have ever read, and in the course of my career at the Bar and on the Bench I have read a good many of them.
Even with the best will in the world it would be very easy for a Secretary of State to misunderstand or misinterpret some of the provisions of those Schedules which decide whether or not a particular matter is within the legislative competence of the Assembly. I say "with the best will in the world". But let us be realistic and face facts. There may be political pressures which make a Secretary of State, and perhaps his advisers, anxious to find that a particular Bill is within the legislative competence of the Assembly, for good—no doubt, as he thinks—political or national reasons. As I said, this proposed Amendment is contrary to the whole spirit of the rule of law in constitutional matters. I venture to say that 763 if we were to accept this Amendment we should be setting a very poor example for our constitutional future in this country.
§ 9.57 p.m.
§ The Earl of CROMARTIE
I know that I am treading where angels fear to tread after all the noble and learned Lords have been speaking, but I should like to support what the noble and learned Viscount, Lord Dilhorne, has said. It is all very well to say that we should tie up the Assembly like this and that the Secretary of State will not know what to do. Surely the Secretary of State will have some quite good advisers. He will not do it just out of his own head, if there is an Assembly—not if the Assembly is properly formed. I think it is asking for trouble to emasculate the Assembly in the way that has been suggested by some noble Lords—and noble and learned Lords at that—and not to let it have a fair run for its money. I can assure you that the people in the Assembly will be quite intelligent. They will be quite capable of running their own Assembly. If you bind them hand and foot with these various legal facets, whatever they are called, we shall then go straight to separatism. The Assembly will avoid that if it is given proper powers. Otherwise we shall be in for a great deal of trouble.
§ Lord ROBBINS
I find it extremely difficult to accept what the noble Earl just said. As we were reminded by the noble and learned Lord, Lord Diplock, provisions of the sort at which he hinted prevail in every successful federation in the world. To rely simply on the continuity of good sense and sufficient knowledge of the advisers of the political Secretary of State seems to me to be an extremely inadequate substitute for the well-tried institution of the rule of law and judicial review.
§ Lord HAILSHAM of SAINT MARYLEBONE
I was hoping, and do hope, that the noble and learned Lord, Lord Fraser of Tullyhelten, who I see on the Cross-Benches and who gave us such an interesting discourse on Second Reading, and perhaps others of his noble and learned friends, were going to intervene in this debate, because he gave us a speech which I think was conclusive of the matter 764 when we were on Second Reading. I intervene now because he is obviously collecting his thoughts and I feel sure that I shall he able to tempt him into intervention before the noble Lord the Chairman finds it necessary to put the Question. I also hope the Lord Chancellor will find it possible to reply to this debate.
I am a little sorry that the noble and learned Viscount, Lord Dilhorne, employed such populist and rhetorical language about the question of post facto review of the vires of what the Assembly does, and I am not surprised that, with his rhetorical demogogy, he managed to excite his noble and learned friend behind him. I think, however, on reflection, the wisdom of the Committee will be the other way. Personally I found the words of my noble and learned friend Lord Diplock—they are all my noble and learned friends on the Cross-Benches—much more persuasive, although delivered in a far calmer frame of mind, than those of my noble and learned friend Lord Dilhorne.
Lord Diplock said, I thought with perfect justice, that what was being proposed by Lord Dilhorne was nothing short of a subversion of the rule of law, and I think that is certainly true, for the reasons Lord Diplock gave. But it is also a subversion of the rights of the subject—of the Scottish subject and indeed of the English subject who happens to venture across the Border; and of the Welsh subject who happens so to venture; and it is also subversive of the sovereignty of Parliament because Parliament (this is the whole structure of the Bill) lays down that the Assembly of Scotland should have certain defined but limited powers. It is not a sovereign body; it is a body with a definite limit to its powers, and indeed part of the case of the Government for the Bill has been that very fact; namely, that the sovereignty of Parliament remains unimpaired.
I should have gone a great deal further than the Government have gone. Always I have made no secret of the fact that, unlike many members of my Party, I think in the end this country has got to face federalism in some form. That would mean that within its own sphere, but only within its own sphere, the Assembly was able to pass laws, and that Parliament within its own 765 sphere, but only within its own sphere, was able to pass laws too. In that case it would be like the Parliament in Ottawa and the Assembly of Alberta or the other Canadian provinces; and, mutatis mutandis, the Parliament in Canberra and the Assemblies of the various State Legislatures of the Commonwealth of Australia; or, again mutatis mutandis, the Congress in Washington and the various Legislatures of, say, the State of Tennessee. That, I think, would be a far better solution than that favoured by many of my noble friends and my honourable friends in another place, and better than that provided by the Government in the present Bill. I have never made any secret of that view.
But it is absolutely essential that if you are preserving the sovereignty of Parliament—and that is the purpose of the Bill—you must equally provide for some kind of proper procedure for preventing injustice from following the excess of power by the Assembly for Scotland. That seems to me to be essential for the Bill. If my view were to prevail at some later date in the history of this Kingdom, and a true federal system were introduced, it would still be more necessary because the frontier would have to be policed both ways. But in both cases there would have to be a post-enactment review and a pre-enactment review.
This is what is done in point of fact in Canada, which is a very good example of what we are producing here, with the qualification that Canada is a true federation and this is not. Canada has a pre-enactment process. Noble Lords will remember, without doubt, that in the 1930s the Aberhart legislation in Alberta was referred, I think, to the Judicial Committee or to the Supreme Court; I am not sure which it was, but it was one or the other. That legislation was referred by the Ottawa Government and was rejected, pre-enactment, I think—but certainly it was rejected.
That was a perfectly valid constitutional process. But that does not prevent the courts of Canada from saying, every day of the week, that certain of the Acts of the Assembly of Alberta may, or may not, be intra vires, within the powers of a Province under the British North America Act. Since Canada is a true federation—which this is not—the courts are equally 766 able to say that certain Acts of Parliament are ultra vires the British North America Act when they are made in Ottawa. There is nothing derogatory about that. It is done in America, and they have managed to survive for 200 years. It is done in Canada, it is done in Australia, it is done in Switzerland. It is done in every country in the world, I think, except Israel, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.
When the noble and learned Viscount, Lord Dilhorne, tries to make us believe that this is derogatory to Scotland because the Assembly is, as my noble friend said, tied up in this way, and when he says that it is reducing its enactments to the level of by-laws, he is frankly talking nonsense, and the most arrant nonsense that he could be talking. But if this Committee wants to preserve the sovereignty of Parliament it has no option but to reject the Amendment of the noble and learned Viscount, Lord Dilhorne.
But I also say that it is contrary to the liberty of the subject. The noble and learned Viscount, Lord Dilhorne, made me gasp when I heard him. He said, "Well, of course, if some people are sent to prison, let's go on doing it; it doesn't matter. If some people have been mulcted in damages by an excess of power, it doesn't matter. Let's go on doing it, let's be consistent. If the Assembly, which is composed of very wise people, and the Secretary of State, who is even wiser, put their rubber stamp on the thing, that will be all right. It is far better to preserve the powers and authority of the Assembly than to give justice to the subject who has been sent to prison, or to another subject who has been threatened with prison ". These are startling propositions to come from a former Lord Chancellor, especially when that former Lord Chancellor was once a member of the Conservative Party. I find this very difficult to swallow.
I would go on to say that if it be the case that there are very many precedents—I notice that he did not quote what they are—of subordinate legislation by Ministers being precluded from consideration by the courts in respect of their validity because of their absence of vires by a strict six-weekly provision of time, so that you cannot challenge a Minister's vires in the courts unless you do it within six weeks, 767 then, short of the Iron Curtain, there is nothing like that which has ever been heard of as a serious proposition, and if it is really going on it is high time it was stopped.
There is another point I should like to urge on the Committee. The truth is that there is a place for pre-enactment review and there is a place for post-enactment review. They are quite different conceptions, and they deal with quite different situations. If you look at Clause 19, you will probably see that, although there is a subsection which allows an individual provision to be submitted for pre-enactment review, what the section is mainly concerned with is the validity of a Bill—that is to say, a proposed enactment—and, of course, the Privy Council or the House of Lords, or whatever judicial authority is ultimately set up, is eminently well suited, if it can, to pronounce, on broad questions of principle, whether certain things are or are not within the powers of the Assembly.
But suppose something slips through the net, as it is bound to do. This is not a wild hypothesis. The noble and learned Lord, Lord Diplock, has said that this is one of the most complicated pieces of constitutional legislation he has ever seen; I think he said it was the most complicated. I am at a later stage, and in relation to another Amendment, going to invite some of your Lordships to take a ramble through some of the Schedules. Your Lordships will be quite surprised what you find when you get there. But the idea that the Privy Council, in its omniscient wisdom, is going to be able to take every net out of this forest of hares is one which baffles my imagination.
The truth is that nobody— not anybody; not the wisest Parliamentary draftsman; nobody—can say, even with a sovereign Parliament, whether in some way a serious injustice will not be done by inadvertence by the best instructed Assembly in the world; let us say, by ourselves. I myself have always wanted to see some form of judicial review in Parliament. This is not provided. But when you have an Assembly which is given such a complicated set of powers as your Lordships will see in the Schedules, if you trouble to look at them, and when you reflect upon the unpredictability of human 768 circumstances as is displayed by litigation, the idea that anybody, even the Privy Council in its Judicial Committee, can conceivably foresee all the possibilities of trouble through excess of powers which could exist, even by inadvertence, I think you begin to see that Lord Fraser's original view on Second Reading was the wise one, and that my noble and learned friend Lord Dilhorne has really been guilty of an excess of zeal in the rhetorical language in which he has proposed this Amendment.
I would only say that, so far from being derogatory to a civilised society, that the Judiciary should have the right ex post facto to examine the vires of a legislative enactment is not only not derogatory to the Assembly but is, I would venture to submit to the Committee, really the only way in which this piece of legislation can be made to work without injustice.
§ Lord MACKIE of BENSHIE
I venture to intervene, encouraged by a number of factors. One, of course, is the courage of the noble Earl, Lord Cromartie, who rushed in; and the other is that really I feel I have almost understood everything that has been said—even some of the Latin tags, though they appeared to me to be somewhat mispronounced. I have been encouraged also in that I feel that while the noble and learned Viscount, Lord Dilhorne, may have proposed the Amendment in emotional terms, the opposition was expressed in colourful terms and not altogether in the dry legal terms that we are accustomed to think of in the case of the law. And very enjoyable it was!
I must say, too, that I have endeavoured to study this matter and, after much thought, I disagree with the noble Earl, Lord Cromartie, because although I think the powers of the Assembly should be far wider in agriculture and industry, for example, I understand that they must be legally given, must be observed within the law of the United Kingdom, would have to be in a proper federal system, and that we must acknowledge the legality of their actions within the concept of Great Britain.
It appears to me, however narrow are the powers, that we must accept this fact. Having done that, when we come to look at the Judicial Committee examining 769 the legality of any Bill, I find it difficult to think that sensible secretaries of the Executive in Scotland would not consult unofficially with the members of the Judicial Committee over lunch—or whatever lawyers do; although from the expression of noble and learned Lords, I see that they do not do that—or study the legal implications. I think that by whatever means they would examine the legal aspects with great care before submitting the Bill to the Assembly and also during its passage, and would put the points if Amendments were suggested. But until the Bill is complete I do not see how the Committee can examine it. Therefore, although it appears complicated, as a layman I see that this must be so.
With regard to the right of a Scottish citizen—I do not know if this applies to any citizen; but I am all for a Scottish citizen being able to challenge it if there is a flaw—it appears to me that this is a very valuable right, and is unlikely to lead to the sort of devastating paradise for lawyers, with a whole succession of people claiming damages for years spent in prison because of a flaw in the Bill. Therefore, I must say that we on these Benches support the Government in this matter. I think it will be good for Scotland. We must accept the fact that it must be legal in the framework of the United Kingdom and that these provisions protect the citizens of Scotland and must be in the Bill.
§ 10.18 p.m.
§ Lord FRASER of TULLYBELTON
I feel that a certain inaccuracy of language crept into some of the remarks made by my noble and learned friend Lord Dilhorne in proposing this Amendment when he referred to the position of a Bill which had been referred to the Judicial Committee of the Privy Council. He said at one stage—and I think the noble Lord, Lord Home, also said it—that once a Bill has been pronounced by the Privy Council to be valid, that should be final. But your Lordships will appreciate that the Amendment has nothing to do with that subject. By this Amendment, the test of whether a Bill or an Act of the Assembly is to he valid is not whether it has been approved by the Privy Council but 770 whether it has been approved by her Majesty in Council—which I take it to mean has received the Royal Assent and not only pronounced to be valid by the Privy Council. I think there may be some misunderstanding on that.
On the matters of principle, I have said all that I had to say on this on Second Reading and I have little to add. The important point is that the citizen who may be affected by an Act of the Assembly which is, in fact, ultra vires ought not to be shut out from his resort to the courts by the mere fact of the Act having been passed and having received the Royal Assent. If it is ultra vires—that is to say, if it is contrary to the provisions laid down in this Bill when it becomes an Act—then the citizen has a right to resort to the courts to have his rights protected, to recover damages or to get whatever other remedy is appropriate. It seems to me to be a matter of absolutely fundamental importance that he should not be deprived of that right in the mere interests of certainty. Of course certainty is very desirable, but it must yield plainly to the true law when the two are in conflict. That seems to me to be the fundamental point.
There is nothing surprising about that when we remember, as some of my noble and learned friends have said, that in every federal Constitution in the world this provision exists and has to exist where there are possibly rival legislators, a federal or chief legislator of some sort, with provincial or state legislators to some extent subordinate to them. One cannot have various Legislatures dealing with the same territory or with power to deal with the same territory without some method of resolving conflicts between them. The obvious method of resolving a legal conflict of this sort is to allow the persons concerned to resort to the law courts to have their rights declared and maintained. The effect of this Bill would be that the right of anybody living in Scotland—not only the Scottish citizen as was suggested at one point, but any person with any interest—to resort to the courts in Scotland, if the matter arose in Scotland, or in England if it arose here, would be declared and protected. There is nothing derogatory in that; it is the ordinary way of protecting a person's 771 rights in this country. I hope that this Amendment will not receive much support.
§ 10.22 p.m.
§ Lord O'NEILL of the MAINE
May I briefly repeat what I said on Second Reading, curiously enough, after the noble and learned Lord, Lord Fraser of Tullybelton. Maybe the noble Lord, Lord Wilson of Langside, will not be in favour of my mentioning what happened in Northern Ireland, but I believe that we can draw something from it. My memory is that, before any legislation was submitted to the Northern Ireland Cabinet, it had to receive a certificate from the Northern Ireland Attorney-General saying that the piece of legislation in question was not ultra vires. I hope that whoever is going to be the Law Officer of the Crown—I expect that is the wrong phrase—in Edinburgh will not allow a piece of legislation to be introduced into the Assembly in Edinburgh without his approval.
Although the noble and learned Lord, Lord Diplock, shook his head very vigorously when it was suggested that there would be a little behind-the-scenes discussion, I know for a fact that the Attorney-General's Department in Northern Ireland consulted with London before they told the Department in Northern Ireland that the legislation which they proposed was ultra vires. Therefore, although, as the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, some fish are bound to get through the net, I hope that very few will. I hope that the legal officer in Edinburgh will tell the Department concerned whether the proposed legislation is intra vires. If he is not sure, I hope to God that he will consult with his opposite number in London.
The Earl of SELKIRK
I must admit that I think the dilemma here is inherent in the Bill and that we shall not get away from it. I shall always be grateful to the noble and learned Lord, Lord Diplock, for saying that these are the most complicated provisions of any Constitution he had ever seen. But it is not a Constitution; it is constitutional law but not one word of this is entrenched. That means in effect that, when anything comes up, Parliament can change the law before it is brought 772 before the courts. This is an inherent problem. One cannot get away from this.
I heard one noble Lord say that ignorance of the law is no longer an excuse because none of us know the law except, with great respect, possibly one or two of the noble and learned Lords in this Chamber. Nobody knows the law and, when you say you do not even know the law, you do not even know whether what you did was right or not. This is an intolerable situation. How can one challenge it? It will take time: it may take five years and one needs the money to do it. I believe that the structure of this Bill is such that we shall never be able to get round this particular problem. If something can be put in which will make the likelihood of a mistake absolutely minimal—and frankly, I do not think that that is altogether possible—I believe that that will be the biggest contribution the Government can make.
§ 10.26 p.m.
§ The LORD CHANCELLOR
When the devolution Bill was under consideration, careful thought was naturally given to the desirability of achieving as much certainty as possible in the provisions of the Bill. That has been, as I understand it, the main motivation behind the Amendment which the noble and learned Viscount, Lord Dilhorne, has brought forward. But the conclusion we came to was that the establishment of certainty at the cost of a denial of the ordinary rule of law was too high a price to pay. It was for that reason that we came down in favour of the provisions for judicial review.
One of the few moments of delight I have had so far in the progress of this Bill through your Lordships' Chamber came when I listened on 14th March to the notable maiden speech of the noble and learned Lord, Lord Scarman, which made such a tremendous impact on your Lordships. What he said, at column 1228, was:Clause 18 of this Bill provides perfectly plainly, and I think rightly, that Scottish Assembly measures shall be law only to the extent that they are within the legislative competence of the Assembly. It is this provision of principle which gives the citizen the right, after enactment, to challenge in the ordinary courts of the land—Scotland, Northern Ireland, England and Wales—the constitutionality of the measure.773 He went on:It is admirable; I am glad it is there; but it is only part and parcel of the scene, the central actor of which is the ordinary citizen who can, in litigation which affects him directly, challenge the constitutionality of the legislation.And he added:This, to my mind, is an immensely important principle and, let me say at once, one which endears the Bill to me.A rare compliment indeed, but a very justifiable one, in my submission.
I do not want again to traverse the legal propositions. With respect, I accept the statement of the law that was given by the noble and learned Lord, Lord Diplock. Provision must be made that there might be room for error. It may well be that my noble and learned friend Lord McCluskey, with eagle eye, will be watching every stage of the process of the enactments that emanate from the Assembly, but even his watchful eye may occasionally fail and the citizen may discover after Royal Assent that he is the victim of an abuse and an excess of power because the power that is being exercised against him or the action which has damaged him had no legal basis or justification and was ultra vires.
The view the Government came to was that the right of the citizen to challenge in court such excessive abuse of power should not be abated even in the interest of constitutional certainty. That conclusion, I think, was the right one and I cannot support the Amendment.
§ Viscount DILHORNE
This has, indeed, been a remarkable debate, and, to me, a surprising one. I never thought in my wildest dreams, particularly after the debate which I listened to yesterday, that I should be accused of demagogy by the noble and learned Lord, Lord Hailsham. He seems to me to be asserting that he has a monopoly of rhetoric. I am attacked, because according to him, I used some demagogy. He appealed to me to speak in a calmer frame of mind. I can assure him that I remained calm throughout, but it was not so very long in the course of his speech before I felt tempted to get up and repeat to him the advice that he had given to me, in perhaps a somewhat stronger fashion. There is no need for 774 his rhetoric or for his demagogy. I make no apology for raising this question this evening in this debate. I think it would have been very wrong if this Committee had not given consideration to it.
In answer to my noble and learned friend Lord Diplock, I wish that I had here with me my noble and learned friend Lord Morris of Borth-y-Gest, who I know feels very strongly in support of the Amendment that I have moved. Of course, my noble and learned friend Lord Diplock is right when he says that, with the Bill as it now is, if this Amendment were given effect to, it would leave it to the Secretary of State alone to decide whether the Assembly was competent to pass an Act. My noble and learned friend Lord Diplock is quite right as the Bill now stands. The difficulty is that we are discussing only Clause 18 and not Clause 19, and we have Amendments down to try to strengthen the safeguards against something getting through the Assembly which is beyond the latter's competence.
I do not doubt that, before a Bill is introduced to the Assembly, there will be discussions with, perhaps, the noble and learned Lord, Lord McCluskey, the Lord Advocate and other eminent Scottish lawyers. The reason why my noble and learned friend Lord Diplock and I were both shaking our heads in unity was that we do not think that those discussions will take place with any members of the Judiciary. That was all. Let us have the best possible safeguards against anything slipping through the net. That is what we want to achieve and that, I hope, we shall secure when we come to Clause 19.
It is very easy to talk about negation of the rule of law. There have been—the noble and learned Lord, Lord Hailsham, seems to have forgotten about them —several cases about Statutory Instruments which cannot be challenged more than six weeks after they have been made. Does anyone say that that is a negation of the rule of law? I should have thought that that could not be denied. But here one possibility is to say that, after a certain time, an Assembly Act should not be challengeable in the courts. I think that that may be worthy of consideration.
775 A great deal of play has been made with the federal system. This, I thought, was to be an alternative to the federal system. I fear very much that this would be only a step towards the federal system, and that would be the only stopping place, short of the break-up of the Union, and I should not like that to happen. But it is said "Look at what has happened in Canada. Look at what has happened in Australia."One has only to make a few inquiries to find out what a source of friction this conflict between State law and federal law has been in federal territories. I was hoping that we could reduce friction. I think that we can and will, if we make the safeguards against the enactment of a measure which contains provisions beyond the competence of the Assembly as good as they can be made.
The noble and learned Lord, Lord Fraser, said that I had made an error in saying that an Assembly Bill would be valid if it had been approved by the Judicial Committee. I was cutting it rather short. If the Bill is referred to the Judicial Committee—and, as the Bill which we are considering now stands, that can happen only at the instance of the Secretary of State—and that Committee, having gone into it very carefully, decides that it is within the competence of the Assembly, it does not seem to me that it is really a negation of the rule of law to treat that Bill, which has been passed by the Judicial Committee, as law which is not challengeable in the courts in the future.
We have had an interesting discussion upon this Amendment. It has been difficult to deal with it in isolation without the other matters. I suppose that I should feel wounded by the observations of the noble and learned Lord, Lord Hailsham of Saint Marylebone. I am not going to reply to them in kind except to say that his advocacy has made me less inclined than otherwise I should have been not to press this Amendment to a Division. However, the example which the noble and learned Lord the Lord Chancellor set as to how to deal with this Amendment has been such that I now ask for the leave of the Committee to withdraw it.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 75 not moved.]776
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.