Lords Sitting of 18 April 1978

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

PENSIONS FOR THE OVER 80s
Lord LEATHERLAND Lord LEATHERLAND: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper, and perhaps, in accordance with the rules of the House, I should declare a personal interest.
The Question was as follows:
To ask Her Majesty's Government whether they will substantially increase retirement pensions for people aged 80 years and over.
Lord WELLS-PESTELL: My Lords, I was hoping my noble friend would declare an interest in this Question in view of the fact that I understand he is 80 years of age today. That being the case, I am sure your Lordships would wish me, on behalf of the whole House, to extend to him our congratulations and good wishes. Having said that, it is with regret that I must tell him that the Government have no plans to make a substantial increase in retirement pensions for the over 80s. Their policy has been to concentrate available resources on improving the level of retirement pensions generally, rather than to give special priority to one group of beneficiaries solely on grounds of age. Retirement pensions, including the non-contributory pensions for the over 80s, will continue to be increased annually at least in line with the movement of prices or earnings, whichever is more favourable to pensioners.
Last week, the Government announced that pensions are to be increased in November, and this will raise their real value to a record level. However, the Government are conscious that the very old may have special needs and priorities. As many of your Lordships will be aware, the Government will shortly be publishing
974
a discussion document entitled On the Needs of the Elderly, prior to the publication next year of a White Paper on the needs of the elderly. This will cover the needs of the very old and, in particular, whether they can best be met by the provision of cash or services. The Government look forward with interest to the reaction to these documents.
Lord SHINWELL: My Lords, may I ask my noble friend whether, if the Chancellor of the Exchequer is disturbed by the present financial stringency and cannot do anything for the over 80s, he could budget for less expense by doing something for the over 90s?
Lord BLYTON: My Lords—
Several noble Lords: Order!
Lord WELLS-PESTELL: My Lords, it is the custom of your Lordships' House that whoever puts down the Question should, if he wishes to do so, immediately put a supplementary question.
Lord LEATHERLAND: My Lords, I thank my noble friend for his reply which, although cautious, was slightly hopeful. Would he not agree that the over 80s are the orphans of the storm from an inflationary point of view? Does he appreciate how difficult it is for them to get part-time jobs and that many of them will receive nothing whatever from the income tax cuts announced in last week's Budget? Finally, will he bear in mind that during their working lives wages were at a low level, making it difficult for them to acquire a nest-egg for their old age?
Lord WELLS-PESTELL: My Lords, my noble friend has raised a number of points and I think I can best answer by saying that one cannot argue but that the over 80s are worse off in certain respects than some people over 75. The Government are endeavouring to look at the real needs of elderly pensioners, those over 80, because we may well find that it is not necessarily cash they want but perhaps services like better nursing facilities, meals-on-wheels and things of that kind; it may be that services are much more important than money. One must also bear in mind that pensions are increased in line with earnings or

975
prices, whichever is the greater, and that the over 80s get the same increase as those who are also on retirement pension.
Lord REIGATE: My Lords, is it not a fact that a higher percentage of those over 80 are receiving supplementary benefit than those between 70 and 80?
Lord WELLS-PESTELL: I do not know whether that is so, my Lords. It might be, but I could not answer Yes or No.
Lord BLYTON: My Lords, is my noble friend aware that he could have told my noble friend Lord Leatherland—to whom I wish many happy returns of the day—about the aged persons' allowance, a benefit of 25p a week?
Lord WELLS-PESTELL: My Lords, it is perfectly true that those over 80, whether they are receiving a contributory or non-contributory pension, receive an age addition allowance of 25p. I am not for a moment suggesting that it is adequate and it may well be that that sort of thing will need to be looked at in the future. I would point out, however, that it was not increased by the previous or the present Government. It would cost a considerable sum to raise it by a substantial amount; for example, if we were to increase the age addition of 25p a week to £1 it would cost no less than £50 million a year, and at this particular juncture we are not in a position to make increases of that kind.
Lord BOYD-CARPENTER: My Lords, can the noble Lord confirm that in the files of the Department of Health and Social Security there are studies going back many years to the time when the age allowance was initiated, which demonstrates very clearly that in general the needs of the over 80s are considerably more severe than those of younger pensioners, both because they can do less for themselves and because their equipment, and clothes, and other things are wearing out? In considering this very real social problem, on which there is considerable feeling, will the noble Lord not be misled by the spritely vigour of his noble friend who asked the Question?
Lord WELLS-PESTELL: My Lords, I would not be prepared to accept that
976
researches done a good many years ago were relevant to the present situation. I have done some research in my time, not in this field; but researches done many years ago are not necessarily relevant to the period in which a fresh research should be undertaken. We are undertaking that research, and, as I said, we shall be issuing a document for consultation in the very near future, prior to issuing a White Paper on the needs of the elderly.
Lord BOOTHBY: My Lords, can the noble Lord give an assurance that Her Majesty's Government will give some consideration to those who are over 75, because they are sometimes very old?
Lord LEATHERLAND: My Lords, finally, may I ask my noble friend, before he pays too much attention to the suggestion from the noble Lord opposite—that supplementary benefit is available to these people—to bear in mind that these people have long memories, which go back to the hungry 'thirties and to the old-fashioned Poor Law, and that their pride very frequently prevents them applying for this kind of supplementary benefit, which they quite erroneously associate with the old-fashioned Poor Law?
Lord WELLS-PESTELL: My Lords, I would accept that, for the simple reason that I believe Members of your Lordships' House on all sides lament the fact that so many of our benefits are not being taken up by people when they ought to apply for them.

ANNAN REPORT ON BROADCASTING
2.45 p.m.
Baroness MACLEOD of BORVE Baroness MACLEOD of BORVE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they intend to implement all or any of the findings of the Annan Report on the Future of Sound Broadcasting (Cmnd. 6753).
The MINISTER of STATE, HOME OFFICE(Lord Harris of Greenwich):

977
My Lords, the position on the report of the Committee on the Future of Broadcasting remains as indicated in my reply on 2nd March to a Question by my noble friend Lord Boston of Faversham: the Government are still considering the Committee's recommendations and the many comments we have received on them, with a view to formulating proposals which can be presented to Parliament in the form of a White Paper.
Baroness MACLEOD of BORVE: My Lords, I thank the noble Lord for that reply. Is he aware that, in September 1977, the Independent Broadcasting Authority issued a list of local radio stations that it would like to open? There were 15 in number, and from that the Authority would like to select eight. Can the noble Lord say whether the Government are thinking along the lines of giving further local radio stations to the Independent Broadcasting Authority?
Lord HARRIS of GREENWICH: My Lords, this is one of the matters which is being looked at at the moment, but I cannot say anything before we publish the White Paper.
Lord ORR-EWING: My Lords, does the noble Lord recall that this Government, and the previous Government, have set up innumerable Royal Commissions and other official inquiries? These have done admirable work, and have produced excellent reports, but absolutely no action results. Why is it that 13 months after the Annan Report came out—and the Government probably had it a little earlier than that—the Government are not able to give permission to the IBA to go ahead with this expansion, which does not raise legislation? It could be done quite simply, involving no public funds at all, and it would be very popular with the public.
Lord HARRIS of GREENWICH: My Lords, one of the recommendations of the Annan Committee was that a local broadcasting authority should be set up. We are looking at this proposal, and we are formulating a proposal which will be put to Parliament. But the White Paper will undoubtedly have the most profound influence upon the whole future of British broadcasting up to the end of this century. It seems to me that in that situation we should get it right.
Lord BOSTON of FAVERSHAM: My Lords, while appreciating that the Government may well feel reluctant to announce decisions piecemeal on these matters, does my noble friend not feel that there is a case, once decisions have been taken on certain matters, for at least some of those matters to he severed from the others and not held up until the whole package is complete? I may say that I disagree with the recommendation of Annan, but does not my noble friend feel that the future of local broadcasting is just such a matter which it would be possible to sever, and that it is a pity to hold it up for the whole of the rest? Once decisions were taken on that matter, could not that matter be announced?
Lord HARRIS of GREENWICH: No, my Lords; I do not believe that it would be a good idea to have instalments on a White Paper. I think it is necessary to deal with all these matters at the same time.
Baroness MACLEOD of BORVE: My Lords, can the noble Lord tell me, finally, when the White Paper is expected?
Lord HARRIS of GREENWICH: No, my Lords; I prefer to say that it will be as soon as possible. I am afraid I cannot give a precise date.

AIRPORT CAPACITY FOR LONDON
2.49 p.m.
Lord BOYD-CARPENTER Lord BOYD-CARPENTER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the delay in proceeding with additional terminal capacity at Heathrow and the absence of plans to build a second runway at Gatwick, they are satisfied that adequate airport capacity will be available in the London area to meet the traffic to be expected in the first half of the 1980s.
Baroness STEDMAN: My Lords, with the completion shortly of the redevelopment work at Heathrow and Gatwick,

979
terminal capacity in the London area airports will be about 50 million passengers a year, compared with a throughput of 32 million passengers in 1977. This capacity, and the developments envisaged in the White Paper on Airports Policy, with the existing runways, should be sufficient to meet the demand in the first half of the 1980s.
Lord BOYD-CARPENTER: My Lords, may I ask the noble Baroness two questions? The first relates to her reference to the early completion of the work at Heathrow. Is that intended to cover both the completion of the public inquiry, and then the completion of the fourth terminal? Secondly, has she, and have the Government, taken into account the fact that previous traffic forecasts were based on the old fares system and that recent developments and the popularisation of cheap fares are likely to bring about a very substantial increase in traffics? Finally, on that point, has she seen that that appears to be the view of British Airways?
Baroness STEDMAN: My Lords, so far as the first point is concerned, when I referred to the completion of the redevelopment work I meant the completion of the redevelopment work which is in hand now. I understand that the public inquiry will start on 31st May. When we have the recommendation about the fourth terminal depends on how much evidence is submitted and how long it takes to deal with it. On the second point, we are aware of the fact that there are cheap fares and we are aware that the number of air passengers is increasing year by year; but we think that when the redevelopment of the central area at Heathrow. which has really brought about the recent congestion, is completed it will raise the airport's capacity to 30 million passengers a year. In addition, the Government's present policy of transferring traffic to Gatwick, where there is spare capacity, and the ban on whole plane charter flights at Heathrow from 1st April of this year, will help to relieve the congestion at that airport. We are satisfied that BAA are working along these lines.
Lord BOYD-CARPENTER: My Lords, in view of the noble Baroness's reference
980
to Gatwick, with its planned passenger throughput of 25 million passengers a year, can she tell me whether there is any other airport in the world where anything like that airport capacity is planned on the basis of one runway?
Baroness STEDMAN: My Lords, I could not answer the second part of the noble Lord's supplementary question, but I can say that the British Airports Authority are satisfied that the single runway at Gatwick will be capable of handling the expected growth in the traffic.
Lord GLENKINGLAS: My Lords, will the noble Baroness hear in mind that, as in the case of the electricity supply, guessing at the number of passengers who are likely to travel has always been a major stumbling block? Does she not perhaps think that the mistakes which were made a few years ago, when we were looking at the question of a new airport, are being repeated; and are we in any way ready to deal with the situation if the estimates are seriously wrong, which I think they may well be?
Baroness STEDMAN: No, my Lords. The Government and the BAA are satisfied that the estimates on which they are working are now reasonable ones.
Earl AMHERST: My Lords, would the noble Baroness not agree that the proposal to erect the fourth terminal on the South side of Heathrow Airport is unsatisfactory from almost every point of view and cannot meet the problem in the short-term, let along the long-term?
Baroness STEDMAN: My Lords, the noble Earl made a very valuable contribution on these lines to a debate we had recently in your Lordships' House. I have today written to him suggesting that his points were valid ones and telling him where to make them to the public inquiry which is in hand. At this moment I cannot predict what will be the outcome of the public inquiry.
Lord LEATHERLAND: My Lords, may I ask my noble friend whether I am right in gathering from her remarks that the urgency to upgrade Stansted Airport in Essex to a full-size third London airport is perhaps not quite so great now as it was a few months ago?
Baroness STEDMAN: My Lords, the White Paper provided for the expansion of Stansted to handle 4 million passengers a year. Beyond 1990, the White Paper has outlined three options for further consideration: first, a major expansion at Stansted; secondly, the development of a military airfield as a civil airport; or, thirdly, the construction of a completely new airport. With respect, I do not think it would he helpful at this stage to consider the implications of these options, until we know what the decision is about proceeding with a fourth terminal at Heathrow.
Lord AVEBURY: My Lords, if the noble Baroness tells us that any further development at London Airport is conditional upon the traffic forecast beyond the year 1990, does that not require that we take a view as to the likely trend in oil prices, and aviation fuel prices in particular, beyond that point? Has she studied the evidence from the major oil companies, such as British Petroleum, showing that world oil production is likely to be declining by that time, and therefore increasing very steeply in price; and what effect does she think this will have on the traffic through London Airport? Will it exceed the 50 million passengers throughput which is containable within the existing terminals?
Baroness STEDMAN: My Lords, I personally have not considered these points, but I am sure that the BAA and the Department considered all of them before making the recommendations in their White Paper.
Lord ORR-EWING: My Lords, in view of the fact that 25 million passengers pass through Gatwick Airport, will the noble Baroness bear in mind that a single runway has sometimes to be repaired and can be very vulnerable to an accident; and that if that runway had to be closed in such an emergency, with 25 million people counting on travelling from that airport, the whole of the metropolitan air travel would be in a desperate position?
Baroness STEDMAN: My Lords, it would be necessary, in that event, to use the runways at other London airports. In 1976-77, the Gatwick runway was closed due to obstruction for a period of
982
four hours and 44 minutes only. That is the only closure we have had.
Lord JACQUES: My Lords, is my noble friend aware that many of us congratulate the Government on not over-expanding the airport facilities? Over-expansion disturbs a great many people and wastes public money.
Baroness STEDMAN: My Lords, I welcome the support of my noble friend. Of course we have to take into account what are the effects of expansion of airports on the environment in general, as well as on the use of them by airport travellers.
Lord THOMAS: My Lords, would the noble Baroness not agree that, as well as putting emphasis on the expansion of London airport capacities, it would be a very good thing indeed to see that the provincial airport capacities are increased, thereby dispersing the load, dispersing the noise factor and collecting more traffic conveniently?
Baroness STEDMAN: My Lords, I accept the noble Lord's views on the use of the regional airports; but the fact is that 80 per cent. of the passengers using London airports have either origins or destinations in the South-East, and it would be unrealistic to expect that any substantial traffic could be diverted into the regions. But we believe that, in the longer term, there has to be a policy of rationalisation and concentration of services at selected airports in order to lead to a greater use of some of the regional airports.

AU PAIR GIRLS: WELFARE
2.57 p.m.
Baroness VICKERS Baroness VICKERS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the report submitted to the Home Office in September 1977 by International Youth Welfare concerning au pairs in the United Kingdom, action is being taken to update the Home Office leaflet Au Pair in Britain.
Lord HARRIS of GREENWICH: My Lords, yes; a revision of this leaflet is in hand. International Youth Welfare sent their final report, Au Pair in Britain, to the Home Office on 14th March last. There had been a meeting in October 1977 at which a preliminary report had been discussed; and we were sent in January a draft for a new leaflet to be used in connection with the revision which we had already begun. We are grateful to International Youth Welfare for the work they have done and the draft they have provided. Partly in consequence, the revision of the Home Office leaflet is now well advanced, and my right honourable friend will shortly be consulting other Departments and organisations which are involved or which may be able to offer helpful advice.
Baroness VICKERS: My Lords, may I thank the noble Lord for that Answer? I must say, and he will be pleased to hear, I am sure, that it is the best Answer I have ever had on this subject. In view of the fact that there are 15,000 girls coming from 24 different countries, and that 67 per cent. of them did not receive the present leaflet, w ill he make certain that this is put right in the future, in view of the fact that a lot of girls are having to work 50 hours instead of the regulated 30 hours laid down by the Home Office and that 10 per cent. of them do not get a free day and 44 per cent. get a free day only at the will of their hosts?
Lord HARRIS of GREENWICH: Yes, my Lords, the noble Baroness is on to an important point. It is obviously highly desirable that these girls should have copies of this leaflet, and certainly we will do everything possible to ensure that they get them. They are made available by members of the immigration service, and they are also available at British posts abroad; but the noble Baroness, as I have indicated, is quite right. We are aware of the concern in this particular matter, and we will certainly do what we can to ensure that these copies are distributed as widely as possible.
Baroness GAITSKELL: My Lords, is the Minister aware that many of us have never heard of so much ill-treatment to au pair girls? Is the Minister also aware that those of us who have children and
984
grandchildren, and friends with children, very rarely come across any such ill-treatment but find that the au pair girls have much leisure, plenty of time for education, a place in the family and good wages? I, for one, find it very difficult to have any kind of strong feelings about this.
Lord HARRIS of GREENWICH: My Lords, I think the position is that in many cases the situation is exactly as my noble friend describes it, but I am bound to say that in others there have been fairly disagreeable episodes concerning some of these girls, and obviously we want to deal with this matter as satisfactorily as possible.
Lord MERRIVALE: My Lords, if I may presume that the reason why au pair girls wish to come to this country is to learn English or to improve their English, can the noble Lord say in what languages, apart from English, these leaflets are produced?
Lord HARRIS of GREENWICH: My Lords, I am afraid that I cannot give an answer off-hand to that question, but I will make inquiries and let the noble Lord know.

RHODESIA
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, at a convenient moment after 3.30 p.m. my noble friend Lord GoronwyRoberts will be repeating a Statement on Rhodesia.
DINNERS
Baroness LLEWELYN-DAVIES of HASTOE: May I take this opportunity of reminding your Lordships that dinners are available this evening and tomorrow evening.

SCOTLAND BILL
3.2 p.m.
The LORD CHANCELLOR(Lord Elwyn-Jones): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

985
Moved, that the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 18 [Legislative competence of Assembly]:
The CHAIRMAN of COMMITTEES: I regret that it has not been possible to produce a revised Third Marshalled List of Amendments. Therefore, there are two documents before your Lordships: the Third Marshalled List itself and a Supplementary List which begins with Amendment No. 307 in the name of the noble Lord, Lord Harmar-Nicholls.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 76:
Page 8, line 10, at end insert—
"(3) Where any provision of a Scottish Assembly Act which is within the legislative competence of the Assembly conflicts with any provision of an Act of Parliament, the Act of Parliament shall prevail so long as it is in force".
The noble Earl said: We turn now to Clause 18 of the Bill. Your Lordships may recall that on the last occasion that this Bill was in Committee in your Lordships' House there was quite a spirited debate, particularly on the effects of Clause 17(2). The matter to which I would draw the attention of the Government today is rather different in that it goes more, as I suggest, to matters of construction as between an Assembly Act and an Act of Parliament. The situation which I would postulate is this: At some time following an Act of the Scottish Assembly, there may on investigation be found matters which could well be inconsistent with an existing United Kingdom Act—if I may call it so—or there may be an element of repugnancy.
Taking the situation as it exists, it could be put right in, I suppose, three ways apart from litigation. First, the Assembly, taking its power under Clause 17(2), could legislate to amend the United Kingdom Act. That would be one way out. Secondly, the United Kingdom, Westminster, Parliament could amend either its own Act or the Act of the
986
Assembly. One hopes very much that that would not lead to what has been described in another place as a "ping-pong situation"; but that is really a political point which may arise later in the debate and I do not wish to deal with it at this stage. Thirdly, under Clause 34, the Government could make an Order in Council which could amend either the United Kingdom Act or the Scottish Assembly Act. I think I am right about that.
In any of these ways, the inconsistency, if it exists, could be rectified. That does not help the situation which exists when the inconsistency is discovered. What is to happen in such an eventuality, one does not know. The Bill is silent. However good the draftsmen may be on either side of the Border and whatever consultations there may be either between the Executive in Scotland and the Government at Westminster or between those who are actually responsible for the Acts, I suggest that it is inconceivable that mistakes will not be made and inconsistencies will not occur. Therefore, one asks what is to happen when such a situation arises.
What are to be the normal rules of statutory interpretation?—because the ordinary canons, as 1 understand, would not apply. An analogy to all this is afforded by the European Communities legislation. Under the European Communities Act, of course, provision is made in effect that legislation emanating from Europe shall prevail over domestic legislation. That is part of the European Communities Act and it is easy for all to understand. What has perhaps been less plain and has become increasingly less plain recently is the way in which domestic courts are to interpret whatever it is that may come out of Europe. Indeed, the case of Simmenthal has added fuel to the flames, in that the European Court of Justice regards the domestic courts of the United Kingdom—and for one moment I am not talking about Scotland—as being in what could be described as a considerably inferior position.
If I may quote from The Times report of 13th March about the case of Simmenthal—which for those of your Lordships who may not be familiar with it is an Italian tax case—the court held that:

987
"a national court, called upon in the exercise of its jurisdiction to apply Community law rules, shall ensure the unhampered application of those rules, if necessary, by leaving unapplied, on its own authority, any national law rule, even if enacted subsequently, which is contrary to Community law, without requesting or awaiting prior appeal of such national law rules by national legislative enactment or by any other national constitutional process".
The reason for quoting that part of the judgment is to point out that, as our existence in the Community progresses, rules of construction are being thrust upon us; it may be, in the end, a better way for citizens to comport themselves—at least they will know, one hopes, where they are. My point is that, as this Bill stands, where such inconsistencies arise people will not know where they are. The point of the Amendment (putting the matter shortly) is to suggest, at any rate, to the Government one means by which at least where an inconsistency is discovered the matter may be logically left where it is unless or until somebody does something about it. I beg to move.
3.9 p.m.
The SOLICITOR-GENERAL for SCOTLAND(Lord McCluskey): I hope that the Committee will forgive me if, in replying to the noble Earl, I deal with matters that go a little further. I do so quite deliberately because I am given to understand that not every provision in this Bill is wholly understood by every Member of the Committee. This may be a suitable opportunity to try to assist those noble Lords who have not followed all the provisions to follow this particular one.
As the noble Earl has said, we talked about Amendment No. 225 on a previous occasion and there are really two interlocking questions for consideration by the Committee. One of them is this. Should Acts of Parliament be given any degree of protection against amendment by, or repeal by, Acts of the Scottish Assembly? The other question, which is one to which this particular Amendment is related, is this: In the event of conflict or apparent conflict between an Act of Parliament, on the one hand, and an Act of the Assembly on the other, should the Act of Parliament automatically prevail?
988
Amendment No. 76 is directed to the second of these questions and I touched upon the other aspect when replying to Amendment No. 225. 1 should like to try to explain the background a little more fully than 1 did on that occasion. The Bill describes the legislative competence of the Assembly in terms of devolved matters. I cannot emphasise this wording or concept too strongly. I can perhaps best illustrate and demonstrate the concept by drawing attention to the relevant provisions of the Bill. In effect, 1 shall be describing a critical aspect of the structure of the Bill: and I would hope that this proves useful both for this and other matters.
That detail is contained in Schedule 10; and one gets there through a chain of provisions leading from the first four lines of Clause 18(2), through paragraph I of Schedule 2, thence into Clause 59(2) and ultimately to Schedule 10. The Committee will see that the matters described in Schedule 10 are in the main described in quite general terms. Part I is paramount: it sets out the devolved matters assembled, for convenience, in groups. Part II then identifies, again in general terms, matters which are not included in the groups, although otherwise they would be. So far, there has been virtually no mention of any enactments. Then we come to Part III. Part III refers copiously to existing enactments; but as the preliminary paragraphs to Schedule 10 (at the foot of page 47 of the Bill) and particularly paragraph (b), make clear, the object of referring to these enactments is simply to indicate whether the matters dealt with in those enactments are or are not devolved matters included in the groups. In a phrase, Part Ill does the fine tuning. It is a large-scale map, as it were, of the frontier between the devolved matters and the matters which are not devolved.
So the Committee will see that the Assembly's legislative competence relates to and is defined in terms of matters. It does not relate to Acts of Parliament. The Government have no particular concern to protect whatever legislation they may have passed in relation to any particular devolved matter. Wherever it wants protection, the Government have already secured it by the provisions of Schedule 10 as it stands, either by not devolving the matter or by specifically excepting it in Part II.

989
Against that background, it becomes easier to understand the real content of legislative devolution. The Assembly may be content to adopt existing legislation relating to devolved matters. That legislation will, indeed, continue to apply as at and from the first moment when devolution takes effect. But thereafter it will be competent for the Assembly, subject to various constraints that are laid down in the Bill, to which I do not need to refer in detail here, to treat that legislation however it likes. It may amend it; it may repeal it; or it may supplement it by passing legislation in new areas: for example, pollution or the criminal law—areas in which there are certain parts untouched so far by Act of Parliament. The extension of legislation into new areas may, indeed, be the first and main step forward which the Assembly takes. There is no reason why Parliament should claim that whatever legislation it has previously passed in relation to what will become devolved matters should stand for all time. This is the central feature of legislative devolution: let the Assembly do what it will—subject always to the constraints which I have mentioned—in relation to matters properly within its competence.
That was the main argument which I foreshadowed when I was speaking on Amendment No. 225. There is no general justification for entrenching Acts of Parliament: to do so would be inconsistent with the whole philosophy of devolution. Where the Government want existing legislation—or rather, the matters to which it relates—protected against Assembly legislative action, the Bill has already achieved that. The Committee will see that in Parts II and III of Schedule 10 and also in the provisions to be found in Clause 60(1) and 60(2). The Committee will, I hope, see clearly the relevance of this to the Amendment we are now considering, Amendment No. 76, and I should say something about what the noble Earl said about the possibility of the game of legislative ping-pong developing between Parliament and the Assembly. Again, we touched on this in the earlier debate but it is a matter of real importance and we must try to get it right. The key to it is that there are really two possible situations.
In the first situation, Parliament could be legislating on a devolved matter because
990
the United Kingdom Government and the Scottish Executive have agreed that it should do so. It could, for example, prove convenient that Ministers should promote Westminster legislation implementing an international obligation for the whole of the United Kingdom. Or some emergency situation might arise in which Parliament is capable of moving quicker than the Assembly. In these cases, there is no reason why the provisions as enacted by Parliament, and by consent, and relating to matters within devolved legislative competence, should not thereafter be entirely within the Assembly's competence to reconsider.
That is the first situation. The second is rather different. However regrettable and remote the possibility, the Government at Westminster might find themselves forced to legislate on a devolved matter without the blessing of the Scottish Assembly. In that situation it would be legislating deliberately. In extreme cases, it could be legislating contrary to the wishes of the Executive. Reason and common sense should prevent the Assembly from seeking to overturn that legislation; but the Government might conclude that in order to achieve certainty, they should protect their legislation against future Assembly legislation and accordingly entrench it. The way to achieve this would be by some explicit provision placing that legislation expressly outside the Assembly's legislative competence. It might even be necessary—again in the most extreme case—to adjust Schedule 10 of the present Bill by a subsequent Act of Parliament.
If I may summarise, there is, in the Government's view, no general case for protecting Acts of Parliament as such against Assembly Acts. It is matters that count, not Acts of Parliament. To give any special degree of primacy to Acts would be to distort the whole structure of the Bill. So in general I would submit that there is no reason why an Act of Parliament as such should prevail every time it is in conflict with an Assembly Act. If the conflict occurs in a devolved matter Parliament has no need to assert any primacy. I suggest that this goes a long way to meeting the concern which the noble Earl and the noble Viscount have expressed by putting down this Amendment. I hope it also takes account of what the noble and learned Lord, Lord

991
Hailsham of Saint Marylebone, said when we dealt with this matter in Committee on 12th April.
May I come specifically to this particular Amendment. What it seeks to do—and I do not think the noble Earl would dispute this—is to provide a rule of thumb for determining how the courts are to resolve the particular question when there is a conflict between the provision in an Act of Parliament and a provision in an Act of the Assembly. The result is clear but it could be unfortunate and I should like to formulate the matter in a slightly different way. The Scotland Bill is a declaration that Parliament does not ordinarily intend to legislate in relation to devolved matters. Accordingly, if it does so in future, it will be doing something extraordinary. It will be doing it either deliberately or, as the noble Earl also foreshadowed, accidentally.
If it does it deliberately—if there is a deliberate intention to legislate on a devolved matter—that will either be with the consent of the Assembly or contrary to the wishes of the Assembly. This presents no problem in protecting the Act of Parliament, if that is what is desired. If, however, the legislation by the Westminster Parliament in relation to a devolved matter is inadvertent or accidental, then I have to ask the question: Why should this Act seek to preserve that inadvertent piece of legislation against an Assembly Act? After all, the Assembly will not be legislating inadvertently in relation to devolved matters. Accordingly, if one wants a rule of thumb as to which should prevail, one might say that the better rule of thumb is that where there is conflict, it should be the Assembly Act which prevails rather than the Act of Parliament.
In relation to the final point that the noble Earl made—namely, the attitude of the courts and the guidance for the courts, I suggest that the courts would not welcome—and certainly do not need—any mandatory or statutory rule of construction. There is, I believe, no call for any rule of this sort at the present time. Even under the present system, there can be apparent or real repugnancies between the provisions of different Acts of Parliament. However, the assiduity of draftsmen, the vigilance of Parliament
992
in scrutinising legislation and the expedience of the courts in applying rules of interpretation ensure that at the present time conflict is virtually unknown and is, of course. always resolved if it does appear.
It is always a highly relevant consideration that a court is obliged to decide any case in front of it and cannot simply declare itself baulked because of an apparent conflict. Is it unreal to suppose that the courts will, after devolution, apply the same rules and will not be put off by the consideration that the provisions under consideration are the products of two different Legislatures? It may be that experience will show that in this we were wrong to take this particular attitude and, if that should turn out to be so, we shall know exactly what has been going wrong and why and Parliament can then consider what remedy will be appropriate. I do not suppose it will be as simple as the one mentioned by the noble Earl in his Amendment.
I apologise for the length and complexity of this particular exposition. I hope that, if it has been difficult to follow, noble Lords will have an opportunity to look at it and that it may provide some guidance as to the whole scheme of legislative devolution. I would ask the noble Earl, in the light of the explanation I have given, to reconsider whether he wishes to press this particular Amendment.
3.23 p.m.
Lord HARMAR-NICHOLLS: The last words of the noble and learned Lord, I think, justify including this Amendment. He said that he had to give a lengthy answer—of course it was right that he should do that—and he said it was very complex. It is because it is so complex and because there are so many doubts and so many byways that could be taken either by the Assembly or by Parliament, that something simple that can be clearly understood should be inserted. This Amendment seems to do just that. At the end of the day, the Amendment will only be doing what the noble and learned Lord has said he thinks will happen if the terms of the Bill as it now stands are worked out.
Lord McCLUSKEY: I am sorry: even though I was lengthy I was obviously

993
not clear. The Amendment does something which is quite clear, but it does not necessarily achieve the result that the courts would achieve. Under the normal rules of construction, the courts, looking at two apparently repugnant pieces of legislation, will hold that the later one prevails over the earlier one. This is a different rule, and therefore the courts would find themselves having a mandatory statutory rule thrust upon them through this Bill, which would apply only to this kind of question and not to any others.
Lord HAR MAR-NICHOLLS: That was the point I was going to come to next, actually. I should have thought the courts would welcome this. The noble and learned Lord said they would not, and he thought that they would like to be the final adjudicators. I should have thought that clear instructions which arc mandatory would have been the sort of thing that is wanted. In all the circumstances, I cannot see how anybody could object to the proposition that, should any of these things happen—the noble and learned Lord says he does not think they will, or they may not happen—the fact is that the Act of Parliament shall prevail; I would have thought that fundamental. I should have thought that is one thing that should he made absolutely clear, because if one looks at Schedule 10 (the noble and learned Lord said quite rightly that it is split into three sections) and if one reads that Schedule carefully, one will see that there are so many contradictions in it, or at least there are so many words that could seem to be contradictory. While I think that there may still remain problems that have to be settled on merit, I should have thought the overriding point was that where there is conflict, whether deliberate or accidental, it is the Act of Parliament that shall prevail. That should be accepted and should be written into the Bill very clearly, as indeed these words would do.
If the kind of thing which the noble and learned Lord thought would not happen did happen, he said that Parliament could pass another Act to put the matter right. That is the very thing that disturbs me about this and I am really coming back again to my real objection to this Bill: the minute that the Westminster Parliament has to do that, you
994
are building in a conflict which is much wider, deeper and more dangerous than the legalities which the noble and learned Lord has been dealing with. Because there is a risk of that—the noble and learned Lord himself said that is the very thing he has just been explaining, and that concerns only one paragraph in the whole Bill and it is complex and difficult to follow—it is vital that the fundamental point should be spelled out very clearly: namely, that where there is a conflict it should he the Westminster Act that prevails.
The noble and learned Lord is learned in these matters. My only claim in that direction is that I am still a student member of Middle Temple: I have eaten my dinners and that is as far as it has gone. Indeed, they were not even dinners, but lunches, because it was in war-time and it was cheaper to get a lunch there than anywhere else under rationing. So I know it is a presumption. on complex matters of this kind, for me even to attempt to be in conflict with the noble and learned Lord. However, I should have thought, on sheer grounds of common sense—and I have always found, however difficult lawyers may make them appear, that our laws are usually based on common sense if one has the courage to get down to the base—that the courts would have welcomed the clear guidance that this Amendment gives. I see nothing in the very interesting explanation which the noble and learned Lord has given which, at the end of the day, would prevent his accepting this Amendment. I hope that my noble friends will be able to produce arguments which may persuade the noble and learned Lord to do just that.
Lord MACKIE of BENSHIE: Since the noble Lord, Lord Harmar-Nicholls, has reduced the matter to an element of common sense, I feel I can compete with him there. I think that in this case you devolve power for a very simple reason: that is, because the people on the spot understand the situation better than those who are farther away from it. That is the whole object of the exercise. Then you lay down conditions, of which there are masses in this Bill, all of which will no doubt be discussed in detail, saying on what matters you may not legislate. Therefore it appears that this Amendment,

995
which rightly probes one of the conditions of the Bill, has to give way to the explanation—which I must say I thought I understood—in the face of common sense in that if the Assembly, legislating on a matter, is to find itself automatically overturned by a previous Bill, whether it has been forgotten about or passed inadvertently or not, then really you have a source of conflict. So I must say that on common-sense grounds it appears that the Amendment, however useful, perhaps should not be pressed.
Lord WILSON of LANGSIDE: In relation to this Amendment, not for the first time I find myself in agreement with the noble Lord, Lord Harmar-Nicholls, in everything he has said. Like the noble Lord, Lord Mackie of Benshie, I also listened with great interest and thought I understood what the noble and learned Lord, Lord McCluskey, was saying. But what he did say surely did not meet the point of the Amendment. I would make two observations in support of that view. He did not dispute that conflict is a not unlikely outcome of these provisions; nor did he say with any clarity or certainty how that conflict, when it arises in this particular context, is to be resolved. In that situation, I should have thought that the argument of the noble Lord, Lord Harmar-Nicholls, was irresistible; namely, that if there is to be conflict, let us provide here and now for a method by which it will he resolved. What the noble Lord said about the background to the Bill is of great general interest, but it surely does not meet the point of the Amendment moved by the noble Earl, Lord Mansfield.
Lord CAMPBELL of CROY: The noble Lord and the noble and learned Lord, Lord McCluskey, have taken the opportunity with Amendment No. 76 to give a description of the whole construction of the Government's devolution scheme and the way in which the Bill has been drafted; and so far as it went, that will be useful in the discussions during the Committee days of this and next week. He said that the competence of the Assembly is to be determined with reference to the matters which are devolved and not with reference to Acts of Parliament. He also told us that Part III of Schedule 10 was a piece of fine tuning. We are interested to have that advance
996
notice and description because we shall certainly be asking questions when we come to it.
He described a situation where there was agreement between Westminster and the Assembly upon Westminster legislating in a devolved area. He also touched on situations where there was disagreement, but, so far as I heard, all this was relating to future legislation; that is, situations where the Parliament or Government at Westminster were considering bringing in a Bill and where a new Bill was under consideration at the Assembly in Edinburgh. I should like to ask him—because I do not think he touched on this—what happens when it is discovered that a Bill which has been enacted in Edinburgh is in conflict with an Act of Parliament which was passed in the past.
For example, it may be found that something which was entered into and passed in good faith is found to be in conflict with the 1968 Act at Westminster. However carefully draft legislation may be examined in the course of being amended and appearing as an Act of the Assembly, it may be discovered that there is some conflict , and there appears to be no way in the Bill of dealing with that situation. The noble and learned Lord was describing to us a situation where legislation was starting.
I must also agree with what my noble friend Lord Harmar-Nicholls said, and what the noble and learned Lord, Lord Wilson of Langside, said, that there is bound to be conflict when there is disagreement. The noble and learned Lord, Lord McCluskey, described a situation where the Parliament at Westminster may feel obliged to do something against the wishes of the Assembly at Edinburgh. That is bound to cause conflict and many of us are worried that, if there is not a clear procedure for dealing with the situation, it will only make the conflict worse and we shall have the kind of situation which all of us are trying to avoid. At present the Bill appears to make no proper provision for this kind of situation, and so we must ask the noble and learned Lord in due course to consider this further.
Viscount DILHORNE: The noble Earl, Lord Mansfield, has drawn attention to a point of considerable difficulty. As I

997
understand it, this Amendment is intended to give some help to the courts, but I am not sure that it will give very much assistance. The noble Earl did not explain the relationship between this Amendment, if carried, and Clause 17(2). I think that needs to be studied in some degree and explained. As I read the Amendment, it secures that an existing Act of Parliament, or an Act passed in the future, is to prevail over a provision in an Assembly Act so long as that Act of Parliament remains in force. I hope I have got that right. IT that is so, it means that what this United Kingdom Parliament is giving to the Assembly with one hand it is taking power to take back with the other. If anything is likely to lead to real conflict between the Assembly and the United Kingdom Parliament, I think that would be likely to be it.
There was one other matter, in the course of the interesting exposition of how this Bill is intended to work given by the noble and learned Lord, Lord McCluskey, which I did not undertsand. Of course Bills very often do not work at all as they are intended, and that may be the fate of this one. The noble and learned Lord said this—and this is what puzzles me:
"Parliament may pass a measure which deals with a devolved matter which is within the power of the Assembly and so trespass on the sphere of the Assembly. It may either do it deliberately with consent or inadvertently or in opposition to the wishes of the Assembly".
I hope I have got that right. He went on to say:
"If it does it deliberately in opposition to the wishes of the Assembly, that can be made entrenched".
I should like him to explain how that can be done. If the Assembly always has power under Clause 17(2) "to amend or repeal a provision made by or under an Act of Parliament", it seems to me that, as it stands under the Bill without the Amendment of the noble Earl, one is likely to get what he describes as a "ping-pong" situation arising if there be any attempt by the United Kingdom Parliament to legislate as to a devolved matter contrary to the wishes of the Assembly. I hope he will explain how, in the light of Clause 17(2), he thinks that an Act of Parliament can he entrenched and not interfered with by an Assembly.
998
He said that there would be no problem when the Assembly agrees to Parliament covering the whole of the United Kingdom in some piece of legislation which affects a devolved matter. That may be so at the time of the legislation: but does it mean—I should like to be clear about this—that, although with consent the United Kingdom Parliament deals with a devolved matter, there is anything to stop a future Assembly from altering that? I should have thought not. I should have thought that as the Bill now stands, it was always within the competence of the Assembly to alter a provision of a United Kingdom Act, whether in existence when the Assembly is created or passed thereafter at any time, so long as that provision relates to a devolved matter.
In construing the relationship between an Act of Parliament and an Assembly provision to see whether they really are in conflict, I myself agree with the noble and learned Lord, Lord McCluskey, that what is called, by the noble Lord, Lord Mackie of Benshie, and the noble Lord, Lord Harmar-Nicholls, a commonsense approach, is likely to lead to very uncommon difficulties.
Lord DOUGLAS of BARLOCH: I have tried to follow this discussion. With respect, I think the noble and learned Viscount, Lord Dilhorne, has gone on to a point which is not at present at issue. As I understand it, the Amendment is dealing with enactments of the Scottish Assembly which conflict with Acts of Parliament, and we must remember that this involves two different considerations. If the Scottish Assembly passes legislation which is not within its province to deal with, obviously it can conflict with an Act of Parliament, but if it passes legislation which is within its province to deal with—and that is what the Amendment refers to—then it does not matter whether or not it conflicts with an Act of Parliament. It is entitled to do so. If it is not entitled to do so the whole Bill becomes completely futile. Devolvement of power to a Scottish Assembly is limited by existing United Kingdom legislation relating to the matters which are within the competence of the Scottish Assembly. It must have the power to amend and, in that sense, to conflict with legislation which has been passed at Westminster.
Lord STRABOLGI: I suggest that this may be a good moment to hear a Statement which is at present being made in another place. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

RHODESIA
3.40 p.m.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE(Lord Goronwy-Roberts): My Lords, I will with permission read a Statement on Rhodesia which is now being made in another place by my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs. The Statement is as follows:
"I will, with permission, Mr. Speaker, make a Statement on Rhodesia.
"The United States Secretary of State and I met the leaders of the Patriotic Front in Dar-es-Salaam on the 14th and 15th of April. We also met President Nyerere. On 16th April we had talks in Pretoria on Namibia and Rhodesia with the South African Foreign Minister and on 17th April we met the signatories of the Salisbury Agreement.
"The aim of all these meetings was to prepare the ground for round table talks to bring about a negotiated ceasefire and an internationally acceptable settlement.
"I do not wish to hide from the House that there are still major differences between the parties, both of whom think they are winning. However, there are some signs that we could widen the existing areas of agreement in two important ways, both of them crucial if we are to establish a neutral administration for the transitional period, capable of holding fair and free elections.
"First, the Patriotic Front is now closer to accepting a role for the United Nations in supervising a previously negotiated ceasefire and in monitoring the activities of the military and police
1000
forces. There is more understanding in Salisbury that United Nations in-volvement gives an assurance that sanctions would be lifted prior to independence.
"Secondly, all would probably now agree to a Council with wide executive and legislative powers whose members would hold Ministerial portfolios. The Patriotic Front said that, provided their other demands (some of which are unacceptable to us) were met, they could accept a council presided over by a Resident Commissioner holding reserve executive powers over defence and law and order.
"There was widespread recognition in all of Southern Africa that if we and the United States were to abandon the search for a negotiated settlement based on the principles of the Anglo/ United States proposals there would be no alternative to a bitter and bloody conflict, with an uncertain outcome and the grave danger of it becoming internationalised and involving all the countries surrounding Rhodesia. The Patriotic Front accepted our invitation to round table talks and the signatories of the Salisbury Agreement have undertaken to give it serious consideration ". My Lords, that is the end of the Statement.
3.44 p.m.
Lord CARRINGTON: My Lords, the House will wish to thank the noble Lord, Lord Goronwy-Roberts, for repeating that Statement and, since we are to have a debate on Southern Africa next week, I shall confine myself to a very few remarks. I am quite sure that it is right that the Foreign Secretary should still be trying to get agreement between the two sides, and if the gap has narrowed that is welcome, though there is a very long way to go. But I think that the British and American Governments, and in particular Mr. Young, must not give the appearance of favouring the Patriotic Front, with its forces, at the expense of the internal group.
We ought to remember, and should remind ourselves, that of the two parties with whom the Government are dealing one has accepted, without qualification, the conditions for independence laid down by successive Governments, both

1001
Conservative and Labour, including a supervised general election; while the other party, without much evidence of public support in Rhodesia but with large guerrilla forces, armed and financed by the Soviet Union, is asking for what amounts to total control of Rhodesia in the interim period; and, indeed one of those leaders has openly advocated a one-Party Marxist State. No doubt Dr. Owen the Foreign Secretary, cannot say these things so bluntly, but it is not a bad thing that those of us who are not so inhibited can do so. So let us work for an association between the two sides; that must be right. But let us, above all, have regard—because it is ultimately Britain's responsibility—to the wishes of the people of Rhodesia.
Lord GLADWYN: My Lords, we on these Benches should also like to thank the noble Lord for repeating this important Statement. In our view, the Secretary of State is to be congratulated on making what seems, at any rate, to have been some progress towards a settlement, together with his United States colleague; though here I must say that I personally associate myself, to some extent, with what the noble Lord, Lord Carrington, has said. We also entirely agree with the last paragraph of the Statement. Unless there is some agreement between the Patriotic Front and the new regime in Salisbury, we can only expect a continuation and, no doubt, an extension of the war. In this connection, would the noble Lord like to comment on the recent report that a Russian general has arrived in Mozambique and is engaged in preparing for an invasion of Rhodesia, based on tanks and MIG fighters from a base North of Beira?
3.47 p.m.
Lord GORONWY-ROBERTS: My Lords, may I first thank the noble Lord, Lord Carrington, for the tone and content of his contribution this afternoon. I think that we all welcomed what he said, and the way in which he said it, and I certainly include my right honourable friend the Foreign and Commonwealth Secretary in what 1 am saying. I am quite sure that what the noble Lord said to us will be most welcome to him. I merely want to underline one or two of the points of non-inhibition which the noble Lord felt able to make.
1002
Of course we do not seek to place a premium on violence. The whole object of the exercise is to ensure that there is an orderly movement into independence in Rhodesia. I am quite sure that my right honourable friend, the British Government and the British people would not countenance an attitude which encouraged the idea in Rhodesia, or anywhere else, that the way to get an acceptable solution is to spill blood. On the question of meeting the wishes of the people of Rhodesia, this is of course very much the vital fifth principle, and here, again, it is the basis of my right honourable friend's assiduous efforts of the past few weeks and months, and the efforts that he proposes to make, hopefully in an all-party round table meeting in the near future.
Equally, the noble Lord, Lord Gladwyn, made a constructive contribution to our very interim consideration of the situation, bearing in mind that we are to have a debate next week. I take under advisement what he had to say about Russian generals in Mozambique and other places, and I hope that next week, if he will develop that and other points, I may be able to reply more fully.
Baroness GAITSKELL: My Lords, may I ask the Minister whether we can follow the example of our own Foreign Secretary, and not take Mr. Andrew Young too seriously? After all, he is very young, very new and has a lot to learn.
Lord GORONWY-ROBERTS: My Lords, Mr. Young is a very able young American leader who has shown great enthusiasm in regard to the solution of these problems. I do not think that we should exaggerate too much what is said from time to time by enthusiastic negotiators, including those from our own country.
Lord LEE of NEWTON: My Lords, is my noble friend aware that those of us who have for many years wished to see majority rule in Rhodesia believe that, if there is now further scope for discussion with the object of bringing the two sides together, so be it, but that many of us will be a little anxious if it appears that some of the leaders of Rhodesian opinion are becoming more concerned about where, at the end of the day, they finish up in the leadership than they are about the

1003
achievement of majority rule for the Rhodesians?
Lord GORONWY-ROBERTS: My Lords, this is not an unusual situation for politicians in politics. On the other hand, as my right honourable friend, a former Secretary of State, knows better than I, it is a difficult but necessary operation that, in achieving a peaceful settlement, regard has to be had even for unacceptable points of view which are held by people all around the table. As my noble friend knows, the hope is that we can effect the highest common factor of agreement among all the parties, including the Patriotic Front and elements in Rhodesia who up to now have proved as obdurate and unreasonable as have certain elements in the Patriotic Front. But we are not without hope. It is necessary to emphasise the difficulty of the operation, but it is also necessary at all times to emphasise the need to continue with the kind of negotiation that my right honourable friend, together with Mr. Cyrus Vance and, indeed, Mr. Andrew Young, has been conducting.
Lord SOMERS: My Lords, I, too, should like to thank the noble Lord for having repeated the Statement. I wonder whether he can explain to the House why his right honourable friend is so anxious to see in power the leaders of the Patriotic Front who have been responsible for the death of thousands of innocent Rhodesian black people—women and children—and have killed them in the most savage, horribly indecent way? Why does he want to see these people leading the country?
Lord GORONWY-ROBERTS: My Lords, it is for the people of Rhodesia, of all creeds, colours and backgrounds, to decide who they want to lead them, and it is for us to do our best to ensure that they have the opportunity to choose their leaders, whoever they are. It is not for us, I suggest, to apply certain criteria to potential leaders which might equally be applied to another set of leaders. I do not believe that we can advance the argument very profitably on that basis. Two principles are involved. The first is that the people of Rhodesia, whoever they are, should choose. The second is
1004
that we must do everything that we can to ensure that they have a fair and free choice.
Lord HARMAR-NICHOLLS: My Lords, there is one very narrow, tactical point which arises out of the Statement. Reference has been made to the need to come back to the Anglo-American agreement. I am wondering whether it is wise to continue to present the Anglo-American agreement in such definite terms. They were not accepted by the Patriotic Front; they were not accepted by the others. It is quite clear that circumstances have altered a little. While what the Anglo-American agreement wanted was quite sound, and one applauds it, to cause the other people now to accept something that they previously turned down may make a solution of the conflict rather more difficult than if it were said that the Anglo-American agreement, as it was first presented, can now be amended and replaced by something else. I believe this would be preferable, rather than that the impression should once again be given that it is the Anglo-American agreement and nothing else that must form the basis of the discussions.
Lord GORONWY-ROBERTS: My Lords, I think that the noble Lord has put it very fairly. I believe that on another occasion in this House I have put it this way: that what we rest on are the Five Principles, and in particular the fifth principle which states that the people of Rhodesia should choose. The Anglo-American proposals are, we suggest, a very good way of implementing those principles, but they are by no means sacrosanct. They are a means of applying irrefutable principles.
Lord LOVAT: My Lords, I do not know how well the noble Lord understands the Matabele people, but they have a rather interesting proverb which runs:
"The wise goat keeps his mouth shut when the witch doctor approaches the flock with a knife."
May I suggest that the noble Lord should pass on these remarks to Mr. Andrew Young who seems determined to precipitate a blood-bath in Rhodesia.
Lord GORONWY-ROBERTS: My Lords, no doubt Mr. Young could command his own set of proverbs in reply.

1005
I think that we are a little in danger of engaging in a slight, friendly altercation with our friends. We should all unite, on both sides of the Atlantic and with our friends in Africa, who are myriad, on the central purpose of these negotiations and should draw in support of those negotiations proverbs from America, Europe and Africa.
The Earl of PERTH: My Lords, would the noble lord agree that whatever may be the opinions in the House about Mr. Young, we all welcome the American participation with ourselves in talks to seek a solution?
Lord GORONWY-ROBERTS: My Lords, I, in turn, welcome wholeheartedly what the noble Earl has said. I do not think that anybody in this Chamber would dissent from the content and the warmth of what we have just heard.

SCOTLAND BILL
3.57 p.m.
Lord STRABOLGI: My Lords, I beg to move that the House do once again resolve itself into a Committee on this Bill.
Moved, That the House do again resolve itself into Committee.—(Lord Strabolgi.)
On Question, Motion agreed to.
House in Committee accordingly.
[VISCOUNT HOOD in the Chair.]
Debate resumed on Amendment No. 76.
The Earl of LAUDERDALE: When the noble and learned Lord, Lord McCluskey, is in his best unbuttoned mood racing through a brief, it is not always easy to follow him, particularly if one is a non-legal layman. I have been puzzled by several things which I thought he said, and which I noted down as well as I could while he was speaking at some speed. First, there is the question of inadvertence. I believe it is granted by the noble and learned Lord that there can be situations in which, by pure accident, an Act of the Scottish gathering or Convention might be found to conflict with an Act of Parliament, or vice versa. But what the noble and learned Lord said was that there would be no inadvertence on the part of
1006
the Scottish Assembly. Inadvertence, however, is the common lot of man, so far as Parliamentary life is concerned.
Lord McCLUSKEY: When the noble Earl thought that I was racing through my brief, perhaps he failed to hear and certainly he failed to understand what I said. I said that it would not be inadvertent for the Assembly to legislate in relation to a devolved matter, because that is what the Assembly is for. If, post-devolution, the Westminster Parliament legislates on a devolved matter and does not do so either by agreement with the Assembly or deliberately over-rides the wishes of the Assembly, then it legislates inadvertently. I hope that the point is now clear to the noble Earl.
The Earl of LAUDERDALE: It is getting a little clearer, but I feel rather like the student who went to his economics tutor and, after an hour, was asked whether he was less confused, to which he replied, "I am less confused, but at a higher intellectual level". I will take the noble and learned Lord's word that it is accepted that there could be inadvertent mistakes made as much by the Scottish Convention as by Parliament. However, what worries me much more is the kind of answer which I received from the noble and learned Lord. For example, he said that Parliament does not ordinarily mean to intervene in devolved matters. Then in extraordinary cases it does mean to do so, and this is not a very happy signal to the people of Scotland. It is one thing to devolve matters for good and all; it is another thing to devolve them and to say, "Yes, but there will be moments when we shall come charging in and we shall have to act".
If I have understood him incorrectly, then there is an opportunity for him to make it clearer because this will be important from the point of view of public opinion. As I understood it, he said that the Parliament of Westminster will not ordinarily mean to intervene in devolved matters. What we really want to know is that it absolutely does not mean to intervene in devolved matters. The noble and learned Lord then went on to say that the Parliament at Westminster might be forced to legislate on devolved matters contrary to the wishes of the Edinburgh Assembly. Surely this

1007
is one of the nubs of the whole thing. There is the possibility—even the likelihood—that at times the political colour of the gathering in Edinburgh will be different from the political colour of the gathering at Westminster. That is almost inevitable sooner or later; indeed it may happen all the time.
That is the situation that worries some of us who want to see a measure of devolution at some stage in some way, but see here a set of propositions that simply seem to add up to confusion. The Government are saying that Westminster might be forced to legislate on devolved matters, contrary to the wishes of the Edinburgh Assembly. Surely it is important that we should get the matter clear and the purpose of the Amendment before us, as I understand it, is to make the matter clear.
Again, the noble and learned Lord said that Parliament may have to act to adjust Schedule 10. That is not very encouraging to those in Scotland who are hoping for the best out of this Bill and who want to see devolution done clearly and cleanly and effectively without danger to the Union as a whole. On the contrary, it is a recipe for confusion and dissension. Then 1 understood the noble and learned Lord to say that there is no reason why a Parliamentary Act need prevail in all cases. We must surely know. As I followed the noble and learned Lord's discourse it was terribly confusing. One is not quite sure whether Parliament is supreme or not. Apparently Parliament is not ordinarily intending to intervene and yet extraordinarily it might. This needs to be made much clearer than it is already. Here and elsewhere in the Bill we have ample opportunity for confusion and dissension and there are plenty of people about, seen and unseen, who wish to exaggerate confusion and dissension to the damage of our country as a whole. I hope the noble and learned Lord can make the matter clearer to simple people than he has made it so far, and if he takes me as a sample of a simple man that will not be a bad thing.
4.4 p.m.
The Earl of SELKIRK: I found the noble and learned Lord's remarks
1008
extremely interesting. He drew a little bit of the curtain aside from the appalling Part III of Schedule 10, and 1 have never understood how that particular part worked with the Bill. So far as I understood him, he said that any Act passed here can in fact be amended by the Scottish Assembly. Secondly, that the purpose of the Government is that within a properly devolved subject the Government have no intention, except in unusual circumstances, of interfering. Indeed, the Bill provides ample statutory arrangements by which, if necessary, Parliament can intrude.
I do not entirely know what the noble and learned Lord means by an "entrenched clause", unless he means simply an Amendment to the Bill. That may be the meaning of the words "entrenched clause" but it is not quite the usual meaning in a constitutional sense. But that is not really the question which my noble friend was asking. He was asking what happened to the people on the spot. Here is the problem—which law are we to follow? My noble friend Lord Lauderdale and others have made the point that people must know; they have to make provision for the future. One has to arrange one's affairs within the law of the country. One must have some idea of what the law will be next year, or perhaps the year after. It seems to me that we should know one way or the other.
I think the noble and learned Lord, Lord McCluskey, comes down on the opposite side to the noble Earl, Lord Mansfield. He says that it ought to be the Act of the Assembly which shall prevail so long as it is in force. Would he accept that? I think it is more important that we should know which Act applies rather than that we should leave it vague. I would rather have one or other as the prevailing Act on the correct subject: that is to say, within a devolved subject within the legal competence of the Assembly, in so far as its Acts are the last on the Statute Book they should take precedence over the United Kingdom Act. Is that what the noble and learned Lord would like?—because I believe it to be a great advantage to have one side perfectly clear rather than to leave it vague as it is at the present time.
Lord McCLUSKEY: There are a number of points to be dealt with and I hope I shall be forgiven if I answer one of the points that was in fact put by the noble Earl. The Amendment—and I did not deal with this before because I thought it was plain—in the last few words says:
"the Act of Parliament shall prevail so long as it is in force".
The noble Earl and the noble Viscount, Lord Colville of Culross, accept Clause 17(2), which is the clause which makes it plain—and both the noble and learned Viscount, Lord Dilhorne, and the noble Earl, Lord Selkirk, referred to this—that a Scottish Assembly Act may amend or repeal a provision made by or under an Act of Parliament. So in the ordinary situation when the Assembly comes to legislate, the draftsmen will discover that there is in existence an Act of 1968, such as was mentioned by the noble Lord, Lord Campbell of Croy, or some other Act, and that there is an existing provision. The draftsmen will pick that up and, using the powers conferred upon them by Clause 17(2), the Assembly will then repeal the Act of Parliament.
Lord CAMPBELL of CROY: But can the noble and learned Lord absolutely guarantee that that will always happen?
Lord McCLUSKEY: No, and I will return to the matter of inadvertence later. But the genius of the Amendment is that it recognises that, and the significance of the words, "so long as it is in force" is that Clause 17(2) enables that Act of Parliament to be repealed by the Assembly, so the movers of the Amendment were in no doubt about that particular point. I hope that answers the point raised by the noble and learned Viscount about the relationship between this Amendment and that particular clause and I hope I shall be forgiven for presuming to answer on the noble Earl's behalf, but it is germane to the whole point.
The noble Earl, Lord Selkirk, quite rightly took me up for using the word "entrenched" because it is not a word which is properly known in our jurisprudence. I was using it in the Committee as a form of shorthand, for which I hope I shall be forgiven. As he says, what an Act of the Westminster Parliament can do in future, if it wants to ensure that one of its provisions shall not be repealed
1010
or amended by the Assembly on a subsequent occasion, is this. It may achieve that in one of two ways: it may use words such as "notwithstanding anything contained in Section 17(2) of the Scotland Act 1978" et cetera, or, alternatively, it may amend the Scotland Act of 1978 in order to prevent the Assembly from legislating on that matter in the future.
Viscount DILHORNE: Then if Parliament passes an Act in that form, what is to stop the Assembly from repealing it?
Lord McCLUSKEY: As I have said, it would amend the Scotland Act and amend either Clause 17(2) or some part of the Schedules in order to prevent the Assembly from having the legislative competence to repeal that Act of Parliament. In other words, on any future occasion the Westminster Parliament can, if it has to do so, amend the Scotland Act so as to remove from the Assembly the competence to amend a particular Act of Parliament and in that way, although I agree that it is a shorthand term, it can entrench any future provision.
The noble Lord, Lord Campbell of Croy, asked me a question: I hope I have dealt with part of it, and the other part I seek to deal with now. He says, "If the Assembly Act is in conflict with an Act which had been in existence in the past, which one prevails?" Of course one hopes that the draftsman picks up the point. If he does not do so, then the ordinary rules of construction prevail. It is not for me to lecture this Committee, including noble and learned Lords and others, on what they are, but the general rule is that where you have a legislature which enacts two provisions the subsequent one will always prevail over the earlier one, if there is an apparent conflict and they do not within themselves contain the means of resolving the conflict. I was asked specifically whether we do not have a need for a clear procedure. My answer would be that we should not be telling the Westminster Parliament in this Bill how to legislate in future on these matters. That is a matter for the Westminster Parliament to decide.
If one gets the inadvertent case—and that is the one which the Amendment is really homing in on, although I am afraid I have broadened the argument because

1011
I thought it might be useful, because I gave a pledge to the noble Earl, Lord Selkirk, at Second Reading that I would give some explanation about Schedule 10; I hope to give another one later—where the Assembly deliberately legislate in the devolved field and the Assembly draftsmen and the Assembly Members fail to pick up the fact that there is an existing statute, the ordinary rules would prevail. I would be content to leave that to the courts, and I hope the Committee will also be content. if the boot is on the other foot, and it is the Westminster Parliament which, while not intending to legislate in the devolved field, inadvertently puts a provision into a Bill which infringes on that particular field, then different considerations would apply. It becomes a matter of construction, in the terms of the whole Act of the Westminster Parliament, whether or not it was the intention to do this. I do not contend that one should have the rule, which I said was slightly more logical, that the Assembly measure should prevail over the Westminster Act. What I said was that one could make out a good case, perhaps a better case, for that, but the best case could be made out for saying to the courts, "These cases have arisen in the past and you have dealt with them. Apply the rules that you consider appropriate to that particular kind of case". I suggest that is not difficult. I hope the noble Earl will make it clear whether or not these explanations are acceptable to him.
4.13 p.m.
Lord HARMAR-NICHOLLS: I think this is another case where the legal outlook is in conflict with the Parliamentary outlook. The noble Lord seems to have produced a new system where many of the responsibilities are put on Parliamentary draftsmen. Parliamentary draftsmen do not exist, any more than the people in the Box exist; it is Parliament which makes the decision. We have a recent example, which divided both Houses, where Parliamentary draftsmen did not realise that a Bill was hybrid; it had a great effect on the way certain legislation would be affected, and it caused part of Government legislation to be withdrawn.
I do not believe that one ought to rely upon Parliamentary draftsmen, excellent
1012
though they are, being the watchdogs to that extent in that sort of situation. I believe it is Parliament's responsibility to make the position as clear as it can in Parliamentary words, to avoid such responsibility being thrown on the shoulders of people who do not exist in terms of being part of the legislation-making machine. To say that the conflict may not be there, or will not be there because the Parliamentary draftsmen will be aware of the legislation which exists, when only a month or two ago that situation did happen on a matter which was very much in everyone's mind, is, I think, very worrying.
Lord DRUMALBYN: May I ask the noble and learned Lord one question, which I think I am right in interpreting as being within the context of his, I thought, very clear statement? Is he envisaging this Amendment, and indeed the whole question, in the context of the interpretation in the Scottish courts of devolved legislation in relation to any other legislation? Is this the point which is involved? It seems to me rather a long way from my noble friend's approach, but if this is the narrow purport of this Amendment it would be very much clearer to me.
Lord McCLUSKEY: That is how I read the Amendment. I would not say exclusively the Scottish courts, because it is conceivable that a point of this kind might arise not in the Scottish courts, and indeed the Bill envisages that and makes provision for resolving certain issues. But, in the vast majority of cases, because the devolved matters relate to people in Scotland, one would expect any litigations to be in the Scottish courts. That is how I understand the Amendment, and I hope that answers the noble Lord's question.
Lord LOVAT: With great respect, would align myself with the noble Earl, Lord Lauderdale. I do not think the Minister has fully explained to the simple man what would happen if the balance of political power in Scotland shifted entirely. This could very well happen. I have been in your Lordships' House long enough to remember that in the early 'thirties Glasgow Council became a Labour Council, and people said at the time that it could never happen again.

1013
As it happens, there has never been any other council in the interval since that time. I think we are all probably anxious to see that the Scottish Nationalists do not control the Assembly: this is part of the object of devolution. What is going to happen if we find ourselves with a strong Scottish National Party in control of the Assembly who wish to separate from the United Kingdom—something which appals us in Scotland?
Lord McCLUSKEY: If I may reply, and I apologise for speaking once again, what the noble Lord says has absolutely nothing whatever to do with this Amendment. We are considering in Committee the advisability of providing a statutory rule for resolving a possible conflict that might arise through inadvertence. That is what we are discussing. I do not propose to take up the time of the Committee answering questions of the kind raised by the noble Lord, which have nothing to do with this Amendment.
The Earl of LAUDERDALE: I know the noble Lord is always very patient, and he will learn as time goes on to address his mind to those of us who arc at the bottom of the third form. I am not quite sure whether I heard him answer the very pointed question put by the noble and learned Viscount, Lord Dilhorne: Why cannot the Assembly under Clause 17(2) amend Parliament's amendment of their own Acts? He does not seem to have answered that, or perhaps I did not understand it.
Lord McCLUSKEY: I thought I did, and I thought the noble Earl, Lord Selkirk, pointed the answer to that question. If one had to do it, the Westminster Parliament could amend the Scotland Act itself so as to remove from the legislative competence of the Assembly the competence to amend the provision that they want to—and I use the word in inverted commas—"entrench".
Earl FERRERS: Is not that in fact quite a fundamental weakness? What the Government have done is to produce a Bill to devolve certain powers to Scotland, and, as the noble and learned Lord, Lord McCluskey, says, all they have to do at a later date is to repeal Clause 17(2) and then presumably everything that the Scottish Assembly does thereafter becomes
1014
wholly subordinate to the United Kingdom Parliament.
Lord McCLUSKEY: What the movers of the Amendment are talking about is a small technical matter. What the noble Earl is talking about is something entirely different. Surely 1 can explain, even to the thircl-formers, that the whole concept of legislative devolution is that once devolved matters have been devolved to the Assembly the Westminster Parliament is intending to stand back. If, for example, the United Kingdom Parliament has to enact an international obligation in relation to a devolved matter, where the Assembly has declined to do so—in that kind of extreme situation where the Assembly refuses to do what it ought to do in relation to a devolved matter and where the United Kingdom have an obligation under international law, or in some such context—you would find the United Kingdom Parliament legislating in relation to a devolved matter against the will of the Assembly. That is a very unusual situation and it might call for very unusual measures. I am not suggesting for one moment that it will happen every day. I suggest that it is unlikely to happen at all.
Earl FERRERS: I am sure that the noble and learned Lord is being very helpful to the third-formers, but perhaps he will now help the fifth-formers. One thing he said was really surprising; namely, that Parliament passes this Act and gives powers to the Assembly, but Parliament does not intend to interfere. Parliament is sovereign. It may be that the Government do not intend to interfere in anything that happens in the future, but, as the Bill is written and as I understand it, there is the possibility for the Assembly to legislate on certain matters and the possibility for the United Kingdom Parliament to legislate on those matters. With the greatest respect to the noble and learned Lord, I do not think that it is right to say that Parliament does not intend to interfere. If the Bill is passed and becomes an Act, the United Kingdom Parliament has just as much right to interfere as the Assembly has to legislate. Is that not a fact?
4.21 p.m.
Viscount DILHORNE: I should like to thank the noble and learned Lord,

1015
Lord McCluskey, for dealing with the point which I raised. I quite agree that there should be power in the United Kingdom Parliament to secure that any international obligation into which we enter is honoured by the whole of the United Kingdom, whatever may be the wishes of the majority in the Assembly. Of course, the noble and learned Lord has said that that can be done, but he has gone so far as to say that the United Kingdom Parliament would only legislate in circumstances like that. I am sure that he would make no claim to commit any future Parliament to any course of action.
Quite frankly, I think that he must concede that it would be within the power of a future Parliament to reduce the area of devolved matters and take away some of those matters from the Assembly if the Parliament of the day thought that that was a wise thing to do. I think that he must concede, under the Bill as it now stands, that there would be that power. At the same time I think that one could safely predict that no Government in their senses would be likely to do something which would perhaps lead more quickly than anything else to a break-up of the Union. However, that power would surely be there.
The noble and learned Lord has said that some of the questions raised in this debate have gone beyond the subject of the Amendment. I personally do not think that he is really the right person to complain of that, because he gave an address in answer to the speech of the noble Earl which covered a whole range and widened the debate. Indeed, I am grateful to him for having done so, because I think that what he has said is valuable and may lead to a greater understanding. For myself, I thank him for his explanation.
The Earl of MANSFIELD: This debate has ranged a good deal wider than my noble friend and I ever dreamt when we came to discuss and later to table this Amendment. A number of questions have been fired at the noble and learned Lord, Lord McCluskey. As the noble and learned Viscount, Lord Dilhorne, has said, he is the author of his own hurt in that he took the opportunity to come down from the mountain bearing what I know,
1016
when we read it in the Official Report, will be very wise words.
However, I do not think that at any rate the first part of his answer had anything very much, if at all, to do with my Amendment. I shall even forgive him for shooting my fox in the shape of the noble and learned Viscount, Lord Dilhorne, because what the Amendment does not do—and this point was taken by the noble Lord, Lord Mackie—is to fetter in any way the legislative power of the Scottish Assembly. As the noble and learned Lord himself said at one point, it is a comparatively narrow Amendment on a comparatively legalistic point, or at any rate a lawyer's point, and it is merely meant to encourage the Government to write into the Bill the state of affairs which would exist when the Bill becomes an Act, so that unless and until an Act of Parliament was changed by the Scottish Assembly, the Act of Parliament would prevail.
A great deal of the debate has centred upon what could be a matter of confrontation between the Scottish Assembly and the United Kingdom Parliament, and that certainly was not in my mind when the Amendment was tabled. Never-the less, I think that the debate has been of considerable value. I am still not entirely happy that the point of the Amendment has been answered by the noble and learned Lord, because when the whole thing eventually came down to his answer he said, in effect: "Oh well, we shall use the ordinary canons of construction so far as Statutes are concerned—the later one will prevail." Therefore, if the situation which I postulated is the one which is causing the difficulty—in other words, we have a United Kingdom Act followed by an Assembly Act—then, of course the Assembly Act will prevail, always provided that it meets the criteria laid down in Schedule 10. I am not happy that that will necessarily be the situation that comes about.
The noble and learned Lord was pretty quick to get round the other part of my hypothesis, that it may be that it is the United Kingdom Parliament at Westminster which is, in fact, inadvertently "trespassing", if that is the correct word—I hope that it is not the wrong one—into Scottish territory. I still think that it would be preferable to write something into the Bill which takes care of that

1017
situation. I do not think that the ordinary canons of construction are very helpful in this respect. I tried to illustrate this with what I might call the "European situation", which I think is more in point. Nevertheless, I believe that the best thing to do is to go away and read, and see what I can make of, what the noble and learned Lord said in his first answer. Indeed, I might even hope that the noble and learned Lord would also go away and read what was said in the Official Report, because I do not think that the matter has been resolved entirely satisfactorily and we may have to come back to it. However, in the meantime I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Schedule 2 [Legislative competence of Assembly]:
4.28 p.m.
Lord MORRIS Lord MORRIS moved Amendment No. 222:
Page 41, line 31, leave out ("Subject to paragraph 8 of this Schedule").
The noble Lord said The noble Lord said: I beg to move Amendment No. 222. This Amendment is intended to be a paving Amendment to Amendment No. 295 which stands in my name, and with your Lordships' permission T shall speak to that Amendment at this stage. Schedule 2, paragraph 2, states:
"Subject to paragraph 8 of this Schedule, a provision is not within the legislative competence of the Assembly if it extends to any part of the United Kingdom other than Scotland".
However, Schedule 2, paragraph I, provides quite simply that,
"a provision is within the legislative competence of the Assembly if, and only if, the matter to which it relates is a devolved matter".
As your Lordships are aware, those matters that are devolved matters are contained in Schedule 10. For a matter to be a devolved matter it must extend only to Scotland. Surely that is the intention of the Bill. However, I should like to ask the noble and learned Lord, Lord McCluskey, why is it felt necessary to over egg the cake by the inclusion of this paragraph? Why is it felt necessary to state in the negative what has already been well, clearly and firmly stated in the
1018
positive? Notwithstanding that point, paragraph 8 of Schedule 2 provides that paragraphs 1 and 2
"do not prevent any provisions from being within the legislative competence of the Assembly if those provisions—

(a) are necessary or expedient for making other provisions effective or for the enforcement of other provisions; or

(b) are otherwise incidental to or consequential on other provisions".

This paragraph must be considered to be so broad as totally to disaffect paragraph 2 of Schedule 2. As I understand it, paragraph 8 permits the Scottish Assembly to legislate for other parts of the United Kingdom and to legislate on matters which have not been devolved. That paragraph 8 empowers the Scottish Assembly to legislate on English matters was made quite clear by the Minister in another place in his reply when this matter was discussed. He said, inter alia:
"If we did not deal with it by having these ancillary provisions it would be necessary to pass an Act of Parliament to make all the consequential changes in United Kingdom legislation". —[Official Report, Commons, 29/11/77; col. 418.]
So be it. Why, indeed, should Westminster not be able to legislate on matters concerning the United Kingdom which have been affected by legislation passed by a Scottish Assembly? The extent to which the Scottish Assembly could legislate seems virtually limitless, as all that is required is that a proposal should be expedient or otherwise incidental to other provisions. Permitting the Assembly to legislate for England would give it greater authority than would be enjoyed by the Parliament of an independent Scottish State, but would also lead to inevitable conflict between Edinburgh and Westminster, as any measure which applied to England would not be subject to the scrutiny of Parliament. We could easily reach the position in which a person resident in England was punished for infringing an Act passed by the Scottish Assembly by some action taken in England. An aggrieved party would have no redress through the United Kingdom Parliament. I maintain that that is an intolerable situation.
In rebuttal in another place the Minister stated:
"But if there were some disagreement and if a Scottish Assembly attempted to sneak past as an

1019
incidental provision something which was a substantive matter which was not within its legislative competence, the United Kingdom Government could refer it to the Judicial Committee as a matter of vires, and the Judicial Committee could decide whether it was incidental or consequential, or whether it was an attempt to legislate for the United Kingdom".—[Official Report, Commons, 29/11/77; col. 419.]
However, under Clause 17(2), as noble Lords are well aware:
"A Scottish Assembly Act may amend or repeal a provision made by or under an Act of Parliament".
That broad statement must itself cover the question of vires, which would have to be interpreted in a strictly judicial manner. However, what would be the position where an Act was clearly intra vires, as being necessary, yet could still be the cause of problems within England? Perhaps I may give an example. Antipollution legislation might well necessitate certain provisions being enforced upon Northumberland and Cumbria. The main legislation which applied to Scotland would be within the vires of the Assembly. Paragraph 8 of Schedule 2 would bring the incidental provisions relating to England within the vires of the Assembly, yet this provision could be very damaging. What could Parliament do?
In any event, I, at least, need guidance on the legal effect of paragraphs 1 and 2 of Schedule 2, taken with paragraph 8. I believe this matter to be of critical importance, for if it is not cleared up it will provide a field-day for the lawyers arguing these matters of competence before a constitutional court, the Judicial Committee of the Privy Council, or whatever body is set up to examine these matters. I should have thought that clarity was of the essence in enacting what is or what is not within the competence of the Assembly. I beg the noble and learned Lord, Lord McCluskey, to consider this matter with his characteristic Scottish thoroughness and care, for the inclusion of paragraph 8 can lead only to confusion and bitter contention. I cannot believe that this can be the intention of Her Majesty's Government. I beg to move.
The Earl of MANSFIELD: I wonder whether it would be for the convenience of the Committee if Amendment No. 78 standing in my name was considered along
1020
with the Amendment of my noble friend Lord Morris. There is no particular necessity for it, but we are now talking about paragraph 8 of Schedule 2 and, of course, they are all wrapped up in each other. I wonder what the noble and learned Lord, Lord McCluskey, thinks.
Lord McCLUSKEY: On that point,I am happy to say that the spirit at least of part of Amendment No. 78 is acceptable to the Government. Indeed, I shall be thanking the noble Earl, Lord Mansfield, and the noble Viscount, Lord Colville of Culross, for drawing our attention to the matter. I shall refer to that when I reply to this debate. The other part of that Amendment—if part of it then survives—is a slightly separate point. It may be that we can speak about it, but we would not necessarily cover the whole of Amendment No. 78 in relation to this.
Lord BOYD-CARPENTER: I think that, in tabling this Amendment, my noble friend Lord Morris has rendered the Committee and, indeed the education of opinion outside a considerable service. We are, of course, all subject to guidance on the legal construction of the Bill, which the noble and learned Lord, in his usual amiable and clearly-expressed way, will no doubt give us in a moment. Anything that I say on this highly complex Bill must be subject to any correction that he may see fit to make.
As I read the Bill and as, apparently, my noble friend reads the Bill, the particular provisions affected by his two Amendments—paragraphs 2 and 8 of the second Schedule—appear to confer on the Scottish Assembly power to legislate for England, for Wales, and indeed for any part of the United Kingdom. As my noble friend said, this is rather an astonishing provision. If Scotland were—as some people there appear to want—to achieve independence, it would be inconceivable that the full sovereign legislature of a foreign Power should be entitled to legislate to affect matters in England. Yet it is apparently proposed that this subordinate legislature, with powers carefully hedged and fenced in by many of the Schedules to the Bill, is to be given power to legislate on matters affecting people living outside Scotland.

1021
As I understand it, provided that it can be sustained that the provisions:

"(a) are necessary or expedient for making other provisions effective or for the enforcement of other provisions; or

(b) are otherwise incidental to or consequential on other provisions",

then the Scottish Assembly will be entitled to legislate affecting matters in England. As I understand it, that means that if, in order to give full effect to their legislation in Scotland, there are practical reasons why the law should affect people in England or Wales, then they have power so to legislate. That seems to raise considerable questions of principle.
Those resident outside Scotland have no vote for the Scottish Assembly; nor have they any means of holding Scottish Secretaries to account for what they do. They will be completely unrepresented. In respect of these devolved matters, it would be no use them coming to Westminster and seeking their Westminster Member of Parliament or the help of a Westminster Cabinet Minister, because both of those functionaries would have to say, "Under the Scotland Act this is outwith our jurisdiction". Therefore, they could have their interests affected by measures carried by an Assembly in which they have no vote and operated by Ministers over whom they have not even a fictitious fraction of control. That cannot be sound constitutional sense. No doubt the noble and learned Lord will say that these will only be fairly small matters, but would they?
One of the matters devolved by Schedule 10 to the Assembly is control of aerodromes. It is at least possible that the Scottish Assembly, in exercise of its undoubted power to regulate aerodromes in Scotland, presumably including all the provisions for controlled air space round and about them, might decide that in order safely to operate Prestwick airport it was desirable to cut off air traffic into Carlisle because it might interfere with air traffic patterns. That would plainly be ancillary to the main power of regulating the Scottish aerodromes. Perhaps the example of Carlisle is a good one because the Burghers of Carlisle can be fairly easily roused. I can tell the noble and learned Lord that they certainly would he if this kind of thing happened.
There are many examples. One of the functions of the Assembly will, I
1022
understand, be to regulate dogs. Suppose there is an outbreak of rabies (as sooner or later there will be as it moves across Europe) in the British Isles. The Scottish Assembly regulating dogs might order that all dogs be tied up, muzzled, or otherwise disposed of. It might well be argued that there is no use doing that if, when you come to the Border, the kindly English, with their love of their canine friends, were allowing these animals to romp happily about the fields. It would surely be necessary and ancillary to the Scottish legislation that some control should be exercised at any rate over the sort of radius of action of a dog from the Border southward.
These may be frivolous matters. However, there is the question of pollution. It is quite obvious that it is no use introducing strict measures against pollution—this again is a devolved matter—right up to the Scottish Border if the English, under another jurisdiction, can happily spread the pollution, shall we say, into the rivers, including the beautiful river in which my noble friend frequently fishes. Therefore, it would be arguable that the Scottish anti-pollution measures should bite on certain areas of Northumberland.
It may be that they would be wise and prudent measures. I am not concerned with that. I am concerned, and I hope the Committee is concerned, with the constitutional indecency of that happening, because it would be subjecting in matters of large, medium or small importance—it does not matter which—the citizens of this country to a jurisdiction over which they had no control and imposed by people whom they had no part in electing.
Does the noble and learned Viscount wish to intervene? I am always alarmed when I see his massive frame showing signs of eruption.
Viscount DILHORNE: That being so I will erupt. I was hoping to follow the noble Lord. I thought he had finished.
Lord BOYD-CARPENTER: The noble and learned Viscount's hopes will shortly he fructified, as so often they are. This is a little more than a minor adjustment. It is not good enough to say, as was said by a Minister in another place on an almost identical Amendment, "If there is any difficulty about this, the Judicial Committee

1023
will sort this out", because the Judicial Committee is an august body, for which I have the profoundest respect—I say that particularly as the noble and learned Viscount is going to follow me, and it would be rash to indulge in any impertinence against that body, which is a body of the highest standing—and it does not always sit next week if you suddenly want a hearing. Its processes are as stately as its importance justifies, and a good many months or perhaps years might pass before a matter of this sort could be sorted out.
Would it not be simpler to accept these Amendments, to accept that the Scottish Assembly should not legislate for England, and that, if it is necessary for the proper operation of Scottish Assembly measures that they should bite in England, the task of arranging this should be undertaken by this Parliament? Just to throw a final complication into an already complicated matter, what happens if the Scottish Assembly to be set up under this Bill seeks to legislate in Wales?
4.44 p.m.
Viscount DILHORNE: I want only to ask one question of the noble and learned Lord, Lord McCluskey, following upon what the noble Lord, Lord Boyd-Carpenter, has said. It may be a difficult question for the courts to determine whether or not a particular provision applying outside Scotland is ancillary and necessary to the Scottish measure. I should like to put to him a case where I should think it might well be said that the provision was clearly necessary and ancillary. The Assembly can legislate in respect to criminal offences. It can make new criminal offences. Giving a power of arrest and power of search might be ancillary, and indeed necessary, in relation to that Act of the Assembly.e
As I see it —and I should like to know whether the noble and learned Lord, Lord McCluskey, will confirm it—if an Act creating a new criminal offence is passed by the Assembly it will be within the power of the Assembly to give a power of arrest over anyone in England, and maybe a power of search as well. I hope he can deal with this. I said "England", but I should have thought the power would also extend to Wales, but that may add more
1024
provocation. If that is so, there really is a big question of principle lurking behind this Amendment.
Lord MACKIE of BENSHIE: I looked at this paragraph in the Schedule. I seem to remember it being explained in various other Bills that you had to put in a clause like this because there were always unforeseen circumstances which might arise, such as buying property, or something, in England which was not covered by the Act up to now, and that really it was a blanket clause which introduced excessive powers which were moderated by common sense.
A number of people are perturbed. The noble Lord, Lord Boyd-Carpenter, is obviously worried in case the Scots should seek to muzzle English dogs. Even if the Scots might seek to muzzle not only dogs in England, I doubt whether they would have the power. I think the Minister could allay a number of fears. My honourable friend the Member of Parliament for Berwick-upon-Tweed has, for example, had representations from people in his constituency about the Scottish powers with respect to pollution and fishing for salmon in the river Tweed. I understand, the law is different in Scotland from the law in England with regard to drift netting. The law on pollution may be different. I think that on this Schedule the Minister might be able to give art assurance to those people who are worried. that this paragraph of the Schedule is not intended to give this sort of power to the Scottish Assembly. If he did that, I think that it would allay a number of fears in various parts of Scotland.
Lord HARMAR-NICHOLLS: The noble Lord, Lord Mackie of Benshie, said that a similar thing has been put in legislation for overriding common sense reasons. I doubt whether there has been an addition as loosely worded as this one. It is quite clear when one reads my noble friend's Amendment that paragraph 2 of Schedule 2 is in direct contradiction in terms of the meaning of the words to paragraph 8. I was happy when I first skimmed through paragraph 2. It says:
"a provision is not within the legislative Competence of the Assembly if it extends to any i part of the United Kingdom other than Scotland".

1025
Very good. That is what I want. We are not likely to get conflict if we can have that made clear. Then the opening seven words,
"Subject to paragraph 8 of this Schedule",
completely negative that.
I remember that it was theorem 13 of Euclid causes one to go to a great deal of trouble to prove that two lines that are not parallel are in fact parallel One proves it with the angle. It is very well done, and one did a lot of swotting at home and got it clear. Having proved that the two lines that were not parallel were in fact parallel by the angles, one then said, at the end, that by hypothesis that was not so and therefore they were not parallel. That is precisely what is happening here; paragraph 2 seems to give a clear indication that it does not want the Assembly to have power over other parts of the United Kingdom; yet when one looks at paragraph 8 one sees that it gives them all the power anyone could possibly want to do just that.
The words are so loose, and that is the point I am making to the noble Lord, Lord Mackie of Benshie. It says they can do these things—the things that in paragraph 2 it says they did not want them to do— "if it is necessary". Who will decide if it is necessary? Who is the power who will say, "That is necessary"? And "necessary" is the least harmful of the words to which I wish to refer, because I think "necessary" has a legal meaning and can be defined in law. Nevertheless, who will say whether or not it is necessary?
We then go on and we see that if they cannot find that something is necessary they can try to see "if it is expedient". If somebody cannot find expedient reasons for doing anything then they are a little short on imagination. Nor do I believe "expedient" has a legal definition. Yet here we are writing it into the Statute. We know what "expedient" means in ordinary language; if something suits you, right or wrong, you simply say, "I want to do this". That is being expedient and getting away with something you are not entitled to get away with. Thus, "necessary" may be "expedient", and in my view it should not be on the Statute Book at all, especially where there is a possibility of conflict arising from the
1026
Scottish Assembly interferring with what are United Kingdom matters.
Then in sub-paragraph (b) it goes on to show that if "necessary" and "expedient" cannot be used, one can use the phrase "if it is incidental"; if something is incidental it can be done. But incidental to what? Who will decide whether something is incidental as a subsidiary to some main point they may have in mind? I doubt whether "incidental" has a legal definition should it eventually reach somebody who must arbitrate in the matter. If you cannot get away with "necessary" and if you find it rather difficult to prove that something is "expedient" or "incidental", you move on to the wonderful phrase "or consequential". If you cannot prove in law that black is white, when we know it is not, when all you have to show is that something is necessary, expedient, incidental or consequential, then I do not think it is possible to administer any sort of law anywhere.
The Amendment is absolutely right; with all these loopholes, paragraph 2 should not be allowed to stand subject to paragraph 8. The simple question I ask the noble and learned Lord, Lord McCluskey, is this: who will decide? Will it be the Secretary of State? Must it go to one of the courts? Or will it be referred to one of the judicial committees? We should be told who will decide which of these words, most of which are incapable of legal definition, apply in order to complete the negative of what we set out to do in paragraph 2. I have seen many Acts where the beginning is contradicted by the end, but when we have a small Schedule like this, where the end completely contradicts the beginning, that makes me even more doubtful whether we should leave the matter to the Parliamentary draftsmen who were mentioned in connection with the last Amendment.
The Earl of SELKIRK: I am wondering whether Scotland, in the sense it is used here, has any territorial waters, a point which may or may not be important. Rivers are given three miles, but there are such things as oil rigs in the North Sea which I believe come under the judicial jurisdiction of the Scottish courts. I do not know whether it is intended that they should be brought in. Obviously one end of the pipe will be under the Scottish

1027
Assembly—Convention, call it what you will—for planning and a number of other reasons. I do not know what happens at the other end of the rig; that may come under a different form of legislation. This may not be the appropriate point in the Bill at which to ask this question, but it may be relevant to what the meaning of the word "Scotland" is in this sense.
Lord DIPLOCK: I confess that I feel considerable unease about paragraph 8 of Schedule 2, and for two reasons. I will not elaborate the vagueness of the words "necessary" or "expedient" for making other provisions effective for enforcement and "incidental" or "consequential". Whether they fall within those words will ultimately be a matter for decision either by the Judicial Committee of the Privy Council or, if it is in the course of litigation, by the House of Lords. Whether a matter is expedient is, I believe, an inapt one to he decided by a judicial body because basically it is a political, rather than a judicial, question. I must say that I should feel some difficulty, some incapacity, in deciding that sort of question; I should not feel confident that the decision I should make would be wise from the political point of view, and after all we want legislation to work and to be successful.
Secondly, I ask the noble and learned Lord, Lord McCluskey, and the Government to consider whether this paragraph is really necessary. There is plenty of legislation with ample legislative power; the Colonial Law of Validity Act, under which the Australian States still act today, prevents their legislating for anywhere outside their own territories, and they have got on perfectly well for many years, for one hundred or more years, without a provision of this kind. For those two reasons—doubts as to its necessity and doubts as to its being good policy to leave these kind of political matters to be decided by judicial minds—I suggest that consideration be given to omitting paragraph 8 from Schedule 2.
4.58 p.m.
Lord McCLUSKEY: Again, I acknowledge that the noble Lord, Lord Morris, has tabled the Amendment because it raises issues the importance of which the Committee has well appreciated and out-
1028
lined. I am asked to explain why we have paragraph 8 in Schedule 2 at all—what it is designed to achieve—and I seek to do that by referring first to paragraphs 1 and 2 of the schedule. As noble Lords have pointed out, we start with paragraph 1, which defines the legislative competence of the Scottish Assembly by reference to "devolved matters", which are described, as I said, in Schedule 10. Schedule 10, particularly Part III, is long and complex and has been criticised on that account, but it is long and complex because Parliament has for many years past, at the instance of successive Governments, passed a great deal of legislation relating to matters which are now to be devolved, and that, however unpalatable, is a fact which this Bill must take into account.
We have formed the view that, when it comes, in a scheme of devolution, to dividing up the spheres of responsibility between the two legislatures, one cannot simply do this nowadays by means of some simple and uncomplicated list; we must deal with a great mass of legislation, all affecting different subject areas which interlock in a complicated manner, and that it is impossible to legislate on any major subject today without touching marginally on a host of other subjects. At the very lowest, there will be cross-references to be corrected in other legislation. Indeed, this can be readily seen by looking at any Bill which comes to this House; there is always a schedule of minor and consequential Amendments which attach to any major Act dealing with subjects such as health, or housing, or local government.
In our view, it follows from this that, if we give the Assembly legislative competence extending solely, simply and strictly to devolved matters, we shall be needlessly fettering it. Its legislation would always be incomplete, or there would always be a risk that it could not complete its legislation. So we must—subject to answering the second point which the noble and learned Lord, Lord Diplock raised—somewhere make provision for the Assembly's legislation to be perfected, to be completed, and for all necessary and consequential provisions to be enacted.
We have sought to do that in two principal ways. First, I should like to direct the attention of the Committee to

1029
Clause 34, to which I think those who have spoken would take no exception. This clause provides that:
"Her Majesty may by Order in Council make any such amendments of the law of the United Kingdom or any part of it … as appear to Her to be necessary or expedient in consequence of any provision made by or under any Scottish Assembly Act".
I think that the objections that have been taken to paragraph 8 would not be taken in the same sense to that provision. Plainly that is the major piece of machinery which is available. But, as the Committee will appreciate, that involves coming each time to Parliament, and it involves Affirmative Resolutions. This is designed to deal with the kind of situation where a fairly major intrusion into the law south of the Border is thought to be necessary, and of course Parliament would have the necessary control over that.
We also have paragraph 8 of Schedule 2. The Government consider that the Assembly ought to be equipped to make its own consequential provisions; and that is the intention and the object of paragraph 8. To put it another way, paragraph 8 of the schedule serves a vital purpose in the ordinary practical legislative processes of the Assembly. As 1 have said, to legislate effectively on any particular matter it will usually be necessary to deal marginally with other matters. I gave the example of cross references to correct in other legislation; let me give an example within the context of Schedule 10 itself. It is strongly arguable that provisions of an Assembly Act on, for example, housing (which is contained in Group 4 of Part I of Schedule 10) could make a purely consequential amendment of the law relating to compulsory acquisition, which is not devolved—it is contained in paragraph 6 of Part II of Schedule 10—and yet it would still be legislation on housing within the meaning of the Bill. But clearly there could be some room for doubt, and the object of paragraph 8 is to remove that kind of doubt.
The noble Lord, Lord Harmar-Nicholls, deplored the looseness of the wording, but I have to tell him that we took the wording from the provisions of an Act passed in 1973, and introduced by the previous Government; it was the Northern Ireland Constitution Act. Of course, I accept
1030
that the context is rather different, and it is desirable to look at the context, very briefly, before founding too strongly upon the use of the same words, because it was envisaged there that the Northern Ireland Assembly could legislate on transferred matters, but not on excepted matters. However, it would be allowed to legislate on excepted matters if, in the opinion of the Secretary of State, the relative provision was ancillary to other provisions within the Assembly's ordinary competence. Accordingly, Section 5(7) of that Act provided a definition of "ancillary", which is the one we have taken and put into paragraph 8 of Schedule 2—
Lord HARMAR-NICHOLLS: Are the words "expedient", "incidental" and "consequential" in that Act?
Lord McCLUSKEY: Let me read the wording so that I leave the matter in no doubt. Unfortunately, one has to go through subsections (1), (4) and (7), but I think the relevant wording is:
"For the purposes of this section a provision is ancillary to other provisions if it is a provision which is necessary or expedient for making those other provisions effective or which provides for the enforcement of those other provisions or which is otherwise incidental to, or consequential on, those provisions".
That is the precedent for the wording which the noble Lord, Lord HarmarNicholls, thought—but apparently does not now think—was loose.
Viscount DILHORNE: The noble and learned Lord realises that that applies a subjective test, as it is in the opinion, is it not, of the Secretary of State or some other politician? Under paragraph 8, it is not a subjective test; it is a matter for decision of the courts. I echo and support strongly the observation of my noble and learned friend Lord Diplock, that it really is not a matter for judicial decision as to whether or not something is expedient. That is a decision for politicians.
Lord McCLUSKEY: I hope to deal with that particular matter when I reach what the noble and learned Lord, Lord Diplock said. If one takes it that a provision such as paragraph 8 of Schedule 2 is necessary for completing and perfecting competent legislation by tidying up the loose ends which protrude

1031
into areas which are not devolved, we recognise that it is incumbent upon us to make sure that there is machinery to safeguard against any possible abuse. There must be some way to afford the kind of protection which the noble Lord, Lord Boyd-Carpenter, thought might be lacking.
I was going to ask whether it is at all likely that the Scottish Assembly would want to start altering the law of England, or for that matter, the law of Wales; why on earth should it want to do so? But I had not taken account of the fertile imagination of the noble Lord, Lord Boyd-Carpenter, who has, quite properly, drawn attention to provisions where one could conceivably see that, as a necessary consequence of legislation intended to be domestic to Scotland, it might be desirable to extend provisions across the Border—
Lord BOYD-CARPENTER: To complete this point, may I ask whether the noble and learned Lord is therefore confirming my reading of the provisions—that they confer power on the Scottish Assembly to pass legislation operative in England or Wales?
Lord McCLUSKEY: That is subject to certain limitations. I do not accept the examples that the noble Lord, Lord Boyd-Carpenter, gave. For example, in relation to airspace, devolved powers relating to aerodromes do not extend to the regulatory powers of the Civil Aviation Authority. The Government accept that it is essential that such matters be dealt with on a United Kingdom basis. As paragraph 8 of Schedule 2 does not allow any cross-Border spillover into what is a non-devolved matter, I think that that deals with that particular point. The whole purpose of paragraph 8 of Schedule 2 is to allow the Scottish Assembly to change the law which applies south of the Border in so far as it falls within the wording of paragraph 8 of Schedule 2.
I was intending to come on to the safeguards, and I wonder whether I may outline them. First, with regard to consultation, it could reasonably be assumed that, before a Scottish Secretary promotes a Bill which laps over the edges of the devolved matters, he will clear it with Ministers, and indeed officials will surely have discussed the matter before
1032
this stage is reached. So the intention to legislate will, I think, be clear, and will be before the eyes of Ministers and Members of the Assembly.
Then there is the wording of the sub-paragraph itself. I refer particularly to the word "otherwise" in paragraph 8(b), line 36. I believe that that makes it fairly clear that the permitted provision has to be incidental to, or consequential on, other provisions which are within the legislative competence of the Assembly, as spelled out in Clauses 18 and 59, and Schedules 2 and 10.
I turn now to the third point. If the Secretary of State considers that a particular provision is not ancillary within the sense of the paragraph, he will be obliged, under Clause 19(1)(a), to refer that to the Judicial Committee. This is a powerful constraint, because if any provision of a Bill is found to be ultra vires, the whole Bill is stopped; that is the effect of the word "wholly" which appears in Clause 18(2).
There is also the matter which I mentioned when the noble Earl asked whether it would be convenient to take this Amendment along with Amendment No. 78. I do not want to anticipate that debate, but the Government accept that Clause 35 override powers should be available against consequential provisions made under paragraph 8 of Schedule 2, whether or not properly so made. Therefore, Clause 35 override powers are to be available, and that is the purpose of the Government Amendment No. 253, which noble Lords will see on the Marshalled List.
So one has the constraint of reference to the Judicial Committee and the overriding Clause 35. Then, finally, if required, though I would hardly think it necessary to use such a hammer to crack such a nut, there is the hammer of legislative override itself, United Kingdom legislation, to deal with the matter, although one cannot really conceive that that would be essential having regard to the other provisions.
So, if I may try to summarise the Government's view on this matter, if the Assembly's legislative competence is to be capable of operating effectively and efficiently and without a constant and

1033
possibly irksome need to come to Westminster to seek time-consuming orders under Clause 34 or even legislation, then we must have powers such as are set out in paragraph 8. We have looked very closely at the safeguards, and we believe that they are adequate for the purpose. In fact, we believe they are more than adequate: they are ample. We have looked also at the wording of the paragraph—and I would be more confident in making the assertions that I propose to make had it not been for the intervention of the noble and learned Viscount and the noble and learned Lord, Lord Diplock. In the light of what they have said, I think we must go back and look at the two points. I think we must ask: Is it necessary at all? That was a matter which we certainly considered; and, in a sense, one could say it might have been better had it never appeared in the Bill at all. Now, if one takes it out, one seems to be taking something away.
However, we will certainly consider whether, in the light of the ordinary doctrines referred to by the noble and learned Lord, Lord Diplock, it is essential; and we will also look at the wording. But if we come to the view that it is essential to have some such provision, then I shall have to say to the Committee that one can only, in a sense, tamper with the wording. You need, if you are going to have a provision of this kind, to have something to make it clear that the Assembly can have this very limited perfecting or completing power. So in that spirit I will take the matter away, if the noble Lord, Lord Morris, considers that proper, and look at it.
Lord HAILSHAM of SAINT MARYLEBONE: I do not know quite what my noble friend will do, but I am very glad to acknowledge the conciliatory and reasonable spirit in which the noble and learned Lord has just explained rather a complicated matter to the Committee; and I would not have intervened except to underline from my own point of view two things which were said by the noble and learned Lord, Lord Diplock. The first is that I think I am right in saying that he was referring in part of his speech to the Colonial Laws Validity Act 1865. That has operated very well in colonial and dominion legislatures for a very long time, and I am bound to say that, having made
1034
that reference to it. and should it turn out, as I think he implied, that the words now inserted in paragraph 8 are not present, it would seem to me to indicate that there is very great substance in the view that paragraph 8 is not necessary at all; and if it is not necessary at all it would remove a bone of contention if it were taken out. There is too much tendency in our modern legislation to insert provisions ex ahundanti cautelâ—I use the old English pronunciation of Latin despite the noble Lord, Lord Mackie, who thinks he knows how the Romans pronounced it. At any rate, there is too much of a tendency of that kind. It was noted very recently in a remarkable book by a gentleman called Sir William Dale—that is, the extraordinary prolixity to which modern statutes are beginning to tend—and if a bone of contention can be removed altogether, this would save us a lot of bother on Report.
The other point I wanted to make is that on the assumption (which I hope I am wrong in making) that something of this kind is required, or is thought to be required, by the Government, there is a clear distinction, I think, between the word "expedient" and the words "ancillary" and "consequential", and possibly "necessary", for the reason that the noble and learned Lord, Lord Diplock, gave. When you get a question of expediency, you ought, I think, in drafting a statute, to make the Executive responsible, because expediency is not well decided by judicial people, not because they are not competent to decide it but because it is of great importance to our constitution to preserve the Judiciary from being compelled to interfere in political matters and from there by rendering themselves subject to unnecessary criticism. So that, if the word "expedient" is required, I would suggest to the noble and learned Lord that some machinery should be discovered to make the Executive responsible for deciding what is expedient, so that they may be answerable to Parliament, and not the courts.
On the other hand, when you are dealing with words like, "ancillary", or "consequential", and I think also "necessary", although I express that view less dogmatically, you are dealing with words which are in fact construed by the courts without difficulty almost every day of the week, and in a context which is not altogether dissimilar from that which we

1035
are now discussing; because the vires of a company as defined by its memorandum of association almost aways contains some reference to ancillary matters of this kind, or, alternatively, judicial decisions about the vires of various corporations also cover things which are "ancillary". For instance, in the matter of the purposes of a charity, which in this respect is not defined in any statute, which are ancillary to the purposes of a charity—I am sorry to tell the noble and learned Lord, Lord McCluskey, that this is a matter of the law of England rather than of Scotland, but it is, I think, fairly trite law of England—are things which are constantly decided by the courts. I do not think the judges would find any embarrassment in applying that, but they would find, or might find, that, even if they were quite willing to handle questions of expediency, it would bring about in Parliament the kind of criticism of the Judiciary which all of us would prefer to avoid.
Lord WILBERFORCE: May I make one very modest suggestion which may commend itself to the noble and learned Lord? It is that he should consider the doctrine of pith and substance. It has long been a principle of constitutional law in the British Commonwealth that in deciding whether legislation is valid or not you consider its pith and substance—that is, the heart and core of it—and the fact that it may spill over marginally into something outside does not furnish a ground for declaring it invalid. I venture to think that if the noble and learned Lord digs out the authorities about this he may find it sufficiently takes care of the problem, without the need for paragraph 8.
The Earl of PERTH: If I understand aright, the noble and learned Lord, Lord McCluskey, is to think about these things again. I would ask that, in thinking about those things, he would direct his attention particularly to the question of pollution, because it seems to me that in the case of pollution there is a real likelihood of a difference of opinion between England and Scotland. Let us take the case, on the Solway, of the River Nith. On both sides there are important industrial factories and plants.
Lord HAILSHAM of SAINT MARYLEBONE: Nuclear, too.
The Earl of PERTH: Certainly: and the ICI, Dumfries. It may well be that the people of Scotland will think that they want to have tougher pollution measures, or less tough measures, than those in England. All I would ask is that, when this whole matter is considered again, the possibility of conflict from a totally different point of view as to what is or is not necessary being taken on one side of the Border from that taken on the other is brought into account.
5.20 p.m.
Lord BOYD-CARPENTER: Only for the record, I should like—in view of the line the noble and learned Lord has taken, I should like him (it being on the record) to consider it further—to take up his contradiction of the point I made about the devolution of aerodromes and the effect on the issue raised by this Amendment. He dismissed my argument that there might be a clash of interests in respect of the approach patterns of airports in England and Scotland by drawing my attention to the fact (of which I was already aware) that the powers and activities of the Civil Aviation Authority are, mercifully, not devolved under this Bill. But the noble and learned Lord, in using that argument, must have been unaware of the fact that, except at aerodromes owned by the British Airports Authority, the Civil Aviation Authority hardly ever does the airport local approach control. That is undertaken by the airport authority.
Subject to what he may feel, the fact that Schedule 10 contains "aerodromes" would seem at least to raise the presumption that the airport control at those aerodromes—if undertaken by the local aerodrome authority, as, practically speaking, in all except British Airports Authority's airports it is—would be devolved; and, therefore, there may be a real clash here. May I suggest one solution of this would be to accept an Amendment which already stands on the Marshalled List in respect of Schedule 10, to delete "aerodromes". Modesty forbids me from indicating in whose name that Amendment stands.
Lord MORRIS: I am grateful to the noble and learned Lord and to all those who have spoken on this Amendment. Notwithstanding that, I could not help

1037
feeling that what the noble and learned Lord is suggesting in his answer is that, during the course of the preparation of this Bill, it was really too much like hard work to get the Bill right. The difficulty that he pointed out, the mix of law, goes to illustrate what a constitutional ants' nest this piece of legislation has stirred up. I am grateful for his suggestion that he will look at this point further, and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES(Baroness Wootton of Abinger): I have to inform the Committee that if Amendment No. 223 is agreed to, I will not be able to call Amendment No. 277.
5.23 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 223:
Page 42, line 10, leave out sub-paragraph (2).
The noble and learned Lord said: Lord Morris has asked me to move this Amendment and I should acknowledge at the outset that it does not, at least as I present it, raise questions of such magnitude and importance as did the last Amendment. I need only say that I think it is probably a majority view, both in your Lordships' House and outside, that the Government were right not to devolve tax-raising powers to the Scottish Assembly. However, it appears by paragraph 4(2) of Schedule 2, certain powers over the rating system in Scotland are conferred on the Assembly. There is, I understand, considerable doubt, particularly in industry, as to the precise extent of these powers which are conferred by this provision.
The object of the Amendment, as I present it, is simply to get from the Government a fuller and clearer statement of precisely what are the intent and meaning of paragraph 4(2) of Schedule 2. This is an area, particularly from the point of view of industry, in which certainty is of some importance. There is, I understand, concern within industry that here we have another tier of Government given power to interfere in an area where, particularly to those responsible to industry, certainty is all-important. I would, therefore, ask the noble Lord who
1038
is to reply to expand upon the intent and meaning of these provisions. I beg to move.
The Earl of MANSFIELD: As it is my Amendment which will fall if that of the noble and learned Lord, Lord Wilson of Langside, prevails, perhaps it would be convenient to speak to my Amendment at this moment of time. At first blush, the words in the Schedule raise the eyebrows. One has been brought up to the belief that not only was this Bill not intended to give any tax-gathering powers to the Assembly but that, as matters stood and according to the philosophy of devolution as this Government see it, it is impossible to make provision for any tax-raising powers which would not have a profound and, possibly, disastrous effect upon the unanimity of the United Kingdom.
What I should like to ask the noble Lord who is about to reply is what is meant by this. Under head (a) the competence is within the Schedule if it is only designed to alter a rate levied at the passing of this Act "without substantially changing its character". I ask this of the noble Lord, Lord Kirkhill—who is looking expectant, and in that sense I am expecting him to reply. What is a rate in this sense? Is it, perhaps, what I, in my ignorance, understand to be a rate imposed by a local authority'? I see him nodding agreement. If so, one asks why it is necessary that it should be written into the Bill.
Secondly, what are the circumstances in which a rate could be altered by a local tax or substituted by a local tax; who would be the unhappy citizens who would have to pay the tax; and what would be the rate of the tax? Could the noble Lord confirm certain suspicions that this might be a way of enabling the Scottish Assembly to slip in something which would be highly unwelcome (such as a tourist tax or rate of VAT or something like that) as it were, by the back door in this Bill? Thirdly, what is a local tax under head (c) of sub-paragraph (2) which can be altered without substantialy changing its character? These are really matters of information, but I think your Lordships would be interested to know whether this sub-paragraph has not in it a great deal more than appears.
Lord BOYD-CARPENTER: I should like to ask the noble Lord when he comes to reply to carry his explanation even further than the noble Earl asked him to carry it. There appears in all the three subsections the words "without substantially changing" or words to that effect. I should like him to give some interpretation of those words. Do they mean that you can alter the rate of the rate, the amount or the level of the rate to an unlimited extent so long as you preserve the structure for collection? Or does it mean you have to remain substantially on the current levels? It is possible, as certain local authorities in England have shown, so to change the character of a local rate, by doubling or trebling it, that what had been a reasonable and accepted impost has become an outrageous burden. I should like to know whether these words "without substantially changing" are intended to put some limitation on the power to increase the amount raised or whether they bite solely on the machinery by which it is raised.
5.30 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): The noble and learned Lord, Lord Wilson of Langside, as indeed the noble Earl, Lord Mansfield, and the noble Lord, Lord Boyd-Carpenter, have asked—me at least initially—to explain the thinking behind paragraph 4 and this I should do first of all. The intention is declared unequivocally in paragraph 4(1) of Schedule 2. That is an intention that the Scottish Assembly should have no general legislative competence! in relation to tax matters. But, to go on from there, what sub-paragraph (2) of paragraph 4 does, and what it is strictly limited to doing, is to provide the Assembly with a perfectly appropriate competence to legislate in respect of the local government rating system which of course is specifically devolved in Group 5 in Part I of Schedule 10.
I have said that the effect of subparagraph (2) of paragraph 4 is strictly limited, I should go on to say that it is in fact limited to the extent that the Assembly's competence is confined, first, to modifying the existing rating system, secondly, to replacing the existing rating system by a similar local tax—that is, one levied only by elected local authorities
1040
and related to the occupation of property. That would enable a change to be made from the present basis of assessment on the notional rent to, for instance, capital value, and, thirdly, to making further modifications to such a local tax. The Assembly could therefore change the existing system within a limited range of options in the light of experience. What it could not do would he to introduce an entirely new form of tax-raising power at local authority level.
The effect of Lord Wilson's Amendment would be to deny the Scottish Assembly any competence whatever to legislate about local authority taxation. But, in the Government's view, this would be at odds with the view already stated in the White Paper of November 1975. For noble Lords who wish to look at it, this appears at paragraph 110. At that paragraph, it states clearly that the Assembly should have powers to adjust the application of the systems of rating and valuation for rating to suit local conditions.
The White Paper went on in the same paragraph to state that only Parliament would be able to authorise new forms of local taxation. That, in the Government's view is what the Bill achieves; to do otherwise would involve a significant derogation from the scope of the devolution of local government and local finance, and it would create a boundary between devolved and non-devolved matters within the general devolved area of local finance which could not, in my view, be rationally defended. Looking at the position in a purely practical way, how well would Parliament be placed and how well would the United Kingdom Government be placed to consider legislation in this part of a subject—local government generally and local government finance in particular—which is otherwise devolved?
May I also add that Parliament would retain to itself the sole right to legislate to create any entirely new taxes. This is in line with the Government's belief that the creation of any entirely new tax would carry serious implications for national finance and for national policies in the reserved fields. Such implications would arise for instance if the present system were replaced by a local income tax or by a power for local authorities to levy tax on motor vehicles, for example. The

1041
Scottish Assembly will have no competence in such matters.
The noble Earl, Lord Mansfield, thought that we might link these two Amendments, and I welcome the suggestion. The noble Earl's Amendment does not go quite so far as the Amendment to which I have been speaking. It appears to accept the general basis of the Government's attitude but seeks to confine the Assembly's power to modifying the existing system. All I can usefully say to the noble Earl is this: there is a difference in view between the Government side and the noble Earl's own perfectly tenable position. We think that the noble Earl's Amendment draws the boundary in the wrong place. We would not say more than that. We think that such a restriction as the noble Earl suggests could well cause unnecessary frustration if the Assembly wished, quite reasonably, to embark on a wider reform of local finance that stopped short of having the kind of national repercussions that the present arrangements are des1igned to guard against.
In the Government's view, the Assembly should have a competence to arrange devolved matters in such a way as best suits Scottish conditions. This was certainly a policy emphasis that developed in the other place. After devolution, the Assembly will be in the best position to assess these conditions and provide solutions. I do not think that decisions on these matters have implications for the rest of the United Kingdom. Therefore, they fit the Government's criteria for deciding what matters can be and should he devolved. In the Government's view, that just about strikes the right balance. That is as fair an expression of the Government's view as I can give the noble Earl.
5.37 p.m.
Lord HARMAR-NICHOLLS: The noble Lord has explained what the Government intend this paragraph to mean. I wonder whether, on close examination, it does mean that. I am worried about the word "substantial". It is perfectly clear from what the noble Lord has explained that the Government do not want the devolved Assembly to have powers to bring in a new form of tax or a new tax. One accepts that. But, in explaining that, he said that the Assembly
1042
would have new powers to raise the rateable value and do things like that. It would not be substantially changing the rate but would be extending its scope.
Lord KIRKHILL: Perhaps I expressed myself badly. I was suggesting that the rating formula could be altered.
Lord HARMAR-NICHOLLS: If the formula results in a higher rateable value under which extra rates have to be paid, a rose by any other name would smell just as sweet. I do not know whether it makes much difference whether I am being asked to pay more tax or more rates. It is the same impost that I have to meet.
Lord KIRKHILL: The rate poundage might then drop. It depends at which point one does these things.
Lord HARMAR-NICHOLLS: It may not of course. It has been made quite clear by people who frighten me and who may be in charge of the Assembly that they want to handle the cash. That is why they have grumbled about the financial provisions. They have said that they want to be in a position to get the cash, handle it and show that they are in charge of some of the finances in Scotland. As the noble Lord explained, the formula in this paragraph could be changed. It could result in extra rates being paid. That would not be a new tax. It would fit in with this, but, in terms of the impost upon the majority of people in Scotland who have to pay rates, it would mean that they had this extra obligation to meet.
Perhaps the noble Lord, Lord Wilson of Langside, had this in mind when he was concerned with this paragraph. Unless it can be defined a little more clearly to avoid this extra impost being put upon the citizens of Scotland, I believe that we ought to make it clear in the referendum that this is possible. If I am a Scotsman and am asked to vote in the referendum as to whether or not I want this measure, when it becomes an Act, I may, if I have a feeling that there is no possibility at all that it is going to cost me any extra money on my rates or taxes, be inclined to support it for all sorts of other emotional reasons which the noble Lord. Lord Mackie of Benshie, so effectively represents. If I thought the result of this paragraph in this Act meant that there was a real risk—

1043
because I could form a judgment as to the mentality of the people who may get a majority in the Assembly and would have the power to do these things—that those sort of people would in this roundabout way put this extra impost upon me, it would make a very big difference to the way I would vote in the referendum.
So what I am saying is that this paragraph ought to be made clearer than it is at the minute as to whether or not they will have no powers from this either to levy excessive rates or taxes in order to bolster up the power that they are seeking before they take the next step towards separation, or whatever it is. That ought to be made crystal clear, before it comes to any referendum, so that people when casting their votes will know that this is the risk they are taking.
It would be better from every point of view if the noble Lord could look at it again and make it mean in words what he has just explained the Government want it to mean. I am not contesting in any way what the Government want and I accept that their integrity is absolutely clear, certainly after the explanation which has been given by the noble Lord; but I am saying that these words could result, if a group of people in the Assembly so wished, in bringing about something which is equivalent to a change of tax. If that is a possibility, the people who have to take a final decision in the referendum ought to know about it. It ought not to slip through.
Lord TAYLOR of GRYFE: I am about to put a point which is largely the same as that raised by the noble Lord, Lord Harmar-Nicholls, and perhaps the noble Lord, Lord Kirkhill, would deal with them both at the same time. This is a difficult area—the area of relations between the local authorities and the Assembly—and unless it is clearly defined and understood there will be continual tension between the Assembly and the local authorities. Some noble Lords have expressed the view that the new Assembly should undertake as one of its first duties the reorganisation of local government, but what will be fundamental to this relationship is the question of financial powers and the ability of local authorities to raise local finance.
1044
The noble Lord, Lord Kirkhill, has made it abundantly clear that any fundamental change in local rating and local taxation would not be within the competence of the Assembly but within that of Parliament. Could he just define the areas within which the new Assembly could have interventionist powers concerning local finance? Could he give some examples, for instance, of where it would be competent to interfere and where it would be incompetent to do so?— because if the Assembly has substantial powers in this direction it could certainly undermine the authority of and respect for local government.
Lord KIRKHILL: I should like, if I may, to say briefly to both noble Lords, Lord Harmar-Nicholls and Lord Taylor of Gryfe, that if there was—and I myself gave the example earlier—a formula rating change passed through the Assembly, the result of that change in financial terms would not go to the Assembly as such but to the local authorities concerned, who are the rating authorities.
In regard to the specific point just raised by the noble Lord, Lord Taylor of Gryfe, we shall be discussing his point when we reach Clause 63, which has rather wide financial implications. I think it would be rather more appropriate to reply to him in depth at that stage. However, I can confirm, as he will know well, that the rate support grant stands as a devolved function and of course there will be a relationship between the local authorities and the Assembly at that point as there is presently between the Secretary of State and the local authorities. These are matters which will have to be discussed later, I think.
5.45 p.m.
Lord CAMPBELL of CROY: The noble Lord, Lord Taylor of Gryfe, has rightly pointed out how important the relationship between the new Assembly and the local authorities is going to be, and the noble Lord, Lord Kirkhill, has sought to explain the intentions of the Government in this passage from the Schedule. We are grateful to him, because certainly an explanation was necessary. It was very difficult to follow what the Government intended, and we are glad to have confirmation that the

1045
word "rate" here does mean a local authority tax—in that sense, "the rates" as we know them only too well.
I should like to ask the noble Lord some questions arising from the explanation that he has given. He made it clear that a local tax is all that the Assembly could try to alter; but does a local tax mean, by definition, the equivalent of rates, that is to say, something controlled by each local authority? Would a local tax introduced in place of a rate still be something the level of which was set by each local authority within its control? I think it is very important that that should be known and defined, because a local tax could be just a general term meaning a tax levied in Scotland and not elsewhere. Again, could the noble Lord give us an example of the kind of tax which could be brought in to replace the rate? What have the Government in mind? As we know, there are limits within EEC regulations as to what kind of tax can be brought in in place of rates. The Government clearly must have something in mind, otherwise they would not have made this provision in the Bill.
My next point is one that I put without considering the question of whether or not it is wise, because that is a larger question, that there should be a tax-raising power. The Government, from this explanation, have confirmed that it is their intention that there should not be a tax-raising power for the new Assembly. I think that when we reach the later financial clauses we can discuss that general question more fully, but what we are concerned with here in the Amendment of my noble friend and of the noble and learned Lord, Lord Wilson of Langside, is whether the wording of this Schedule carries out without ambiguity the intention which has just been explained by the noble Lord, Lord Kirkhill.
Sub-paragraph (1) says quite definitely that the Assembly is not empowered to impose or alter any tax—I repeat "any tax"—which presumably anybody reacting the Bill for the first time would think included a local tax. Sub-paragraph (2) appears to describe how a rate can, first of all, be converted into a local tax and then how the local tax can be altered. It does seem contradictory. The only qualifying words are "not substantially"
1046
and, as we know only too well from the debates we have had in this Chamber on other measures, the words "substantial" and "substantially" can be read in many dfferent ways. There has been a lot of argument as to whether or not the words shall appear in Bills. So that does not help to clarify the situation here.
In addition to the questions I have put to the noble Lord, I should like to ask another, to which he may revert later in the Bill. Will he make it clear whether it is completely within the competence of the new Assembly, as the Bill is now drafted, to carry out a reorganisation of local government in Scotland?—because many of us realise that if a new Assembly comes into existence it may well be necessary to make changes in local government: otherwise there are going to be too many tiers of government and Scotland will be over-governed. One of the possibilities then could well be the disappearance of one of the present tiers of government. Is the Assembly to be completely in charge of that? Local government is devolved to the Assembly. If it is to be completely in charge of that I can see a good deal of conflict arising between the local authorities and the Assembly.
The question of financial repercussions will also arise—what is going to happen to the rates which a tier of local authorities is at present levying? From the wording we are now discussing it certainly appears that a little ingenuity or interpretation by an Assembly could well end up by the Assembly receiving revenues from what is called a local tax, unless the noble Lord can answer some of the points I have raised.
The Earl of LAUDERDALE: May I add something in support of my noble friend Lord Campbell of Croy? If ever there was a need for clarity it occurs here. One thing that is quite clear about this Bill is that it is going to start a colossal row and tension between the Convention, on the one hand, and the local authorities, on the other. There is power in the Bill to abolish the regions or the districts, as the case may be. What is so frightening about this Schedule is the ambiguity. The noble Lord—who, after all, has a long and distinguished career as Provost of Aberdeen and possibly knows more about local government than anyone else in this House—will know very well

1047
that there must already be apprehension in the regions and districts that some of their functions, or alternatively their rate-raising powers, are to be taken from them. Is it not common sense to expect that where considerable power is already entrenched, particularly in the regions, they will themselves lobby and perhaps put up candidates in one form or another to come into the Convention and stifle this very operation? In fact this is a recipe for conflict.
It is because of that recipe for conflict, which could tear Scotland apart so that the proposed Assembly—or Convention, as I prefer to call it—becomes a source of disunity and not unity in Scotland, that I believe it is so important to get this matter absolutely clear. In many parts of the regions there is already foreboding of clash and confrontation on this point, the more so because the Convention or Assembly would itself seem to be a rather futile affair unless its Members are disciplined by the responsibility for raising money which they are going to spend and facing the unpopularity of raising more money than is currently being raised. Again behind the whole conception of the Bill—for those who have apprehensions about it, as I have—is the fear that the Assembly or Convention will keep on asking Westminster for more money, whereas, saddled with a fair and square responsibility to raise extra funds if they want to spend more themselves, they would be curbed in that appetite.
Will the Government recognise—as I am sure the noble Lord must from his long and distinguished experience—that there is here the germ of very serious conflict between the existing local authorities and the new gathering? For myself, I should like to see the Convention have proper money-raising powers. Without that it cannot be seen to be responsible. This is all burked in the Bill except in so far that there are powers in it to grab local rate-raising powers. That is a source of conflict. If there is a case for clarity here more than anywhere else in the Bill, I believe it lies in this danger of conflict between several tiers of government.
Lord WILSON of LANGSIDE: Will the noble Lord forgive me if I add one incidental question to the formidable list
1048
of those which have already been put to him? This I ought to know from my reading of the Bill and what has gone before, but can he confirm what will be the position so far as industrial and other de-rating provisions are concerned in future? I assume the Assembly will have legislative powers in these regions. I am sorry to put this to him at the end of the debate rather than at the beginning but I overlooked the matter. Am I right in that assumption?
Lord KIRKHILL: May I first of all reply to the very pertinent point raised by the noble Lord, Lord Campbell of Croy, and remind him quite gently that I did indicate earlier in my remarks that a rate is a tax levied only by a local authority and related to the occupation of property. There can be no equivocation about that point. The Government's position is that such a tax need not take the form of rates in the pound on an assessed valuation. I must say that I gave an off-the-cuff example of capital value as being one method. I suppose formula rating is another. I think it is fair to say that the Government have no conclusive view about this. If the Assembly wished to take some other formula which no one is yet thinking about then provision would allow them to legislate accordingly. That is the position we are in this afternoon. I can confirm to the noble Lord, Lord Campbell of Croy, that the Assembly would be in a position to re-reorganise local government. That is certainly within their competence.
I should perhaps say to the noble Earl, Lord Lauderdale, that I had been expressing earlier—and I think I did so with clarity—that if there is a change in the rating formula then the monies which accrue from that change go to the local authorities. The Scottish Assembly cannot pinch the money. There can be no question of that, as I thought he was suggesting.
The Earl of LAUDERDALE: I am much obliged to the noble Lord, but he has earlier confirmed that there are powers in this Bill to re-reorganise local government. Supposing that involves, shall we say, abolishing the regions; what happens to their rate-raising powers? In that case do they not go to the Assembly?
Lord KIRKHILL: No. The rate-raising power then goes to whatever type of authority is then created at the local authority level. For example, it might be a new one-tier authority.
The Earl of LAUDERDALE: I am much obliged to the noble Lord for giving way, he is always so courteous and kind and helpful. Supposing for the sake of argument the Convention decides to abolish the regions. There are rates raised by the regions—would they not then fall to be raised by the Convention or the Assembly?
Lord KIRKHILL: The rates which would then fall to be raised would be levied by whatever type of local authority structure was put in the place of the regions. Quite clearly there can be no dispute about that.
The Earl of LAUDERDALE: Could not the Assembly literally take over the powers and functions of the regions?
Lord KIRKHILL: If the Assembly were to behave in what I would consider in the circumstances outlined as a completely outrageous manner, it would no longer be a rate. The political consequences of that kind of politickering would be quite disastrous for the Assembly. I cannot see that happening at any point.
May I make one other point? The noble and learned Lord, Lord Wilson of Langside, asked the position on industrial de-rating. The position would be that the Assembly could legislate on that point.
Lord WILSON of LANGSIDE: I am grateful to the noble Lord on the Front Bench for his careful explanation, and to other noble Lords who took part in the debate. In the circumstances I think the sensible course for me would be to ask the leave of the House to withdraw my Amendment.
Lord HARMAR-NICHOLLS: Before the noble and learned Lord asks the leave of the House to withdraw his Amendment, may I ask a question? Could the Assembly raise a lottery? That would not be a tax; it would not be a rate. If it came off it would be a very good way of getting cash into the till. Is that ruled out?
Lord KIRKHILL: I can see no point in the present Bill which would permit the Assembly to do that.
Lord WILSON of LANGSIDE: I was about to say that I thought the sensible course, if your Lordships agree, is that I should ask for leave to withdraw my Amendment. That leaves the Amendment of the noble Earl, Lord Mansfield, still standing, and I shall be happy to leave any further comments to his much more articulate voice.
Amendment, by leave, withdrawn.
[Amendment No. 77 not moved.]
The DEPUTY CHAIR MAN of COMMITTEES: I have to draw your Lordships' attention to the fact that if Amendment No. 295 is agreed to, I cannot call Amendment No. 78.
[Amendment No. 295 not moved.]
6.1 p.m.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 78:
Page 42, line 37, at end insert ("Provided that nothing in this paragraph shall affect the powers of the Secretary of State under sections 35 and 37 of this Act, and a provision may be a reserved matter within the meaning of those sections notwithstanding that it falls within this paragraph").
The noble Earl said: We have already had a wide-ranging and very considerable debate on this Schedule and, more particularly, on this paragraph of the Schedule. There is one matter, though, about which I should like to ask the noble and learned Lord,' Lord McCluskey. The question arises as to whether override powers can be used in relation to something which extends beyond Scotland. Coupled with that is the question which I want to ask the noble and learned Lord.
In his opinion, does Schedule 2 extend to Statutory Instruments? It is an important little point for this reason. Clauses 18 and 19 extend to legislative competence and the scrutiny of Bills. Nothing has so far been said as to Statutory Instruments. I was aware that a new Amendment, so to speak, No. 253 has been tabled in the name of the noble and learned Lord the Lord Chancellor, which, as it were, rewrites subsection (2) of Clause 35. But that clause also goes to Bills, and not to Statutory Instruments

1051
made in consequence of Bills. In those circumstances, it may just be that the device which my noble friend and I have used in our Amendment, would serve the purpose better than what the noble and learned Lord said would be the ease with Amendment No. 253. At any rate, I put it forward for his consideration. I beg to move.
Lord McCLUSKEY: As I indicated earlier, the Government sympathise with the objective behind this Amendment, or at least that part of it which relates to the legislative competence of the Assembly. Indeed, that is why the Government have put down their own Amendment No. 253, which I shall seek to explain when I come to it. That Amendment will ensure that the Secretary of State can use his override powers under Clause 35 to block an Assembly Bill, notwithstanding that it is within the legislative competence of the Assembly by virtue of paragraph 8 of Schedule 2. Of course, all this is subject to such reconsideration of that paragraph as we make in the light of the observations from your Lordships earlier.
With regard to the second point of whether Schedule 2 extends to Statutory Instruments, I have to suggest to the noble Earl that it does not. The reason for that is that Schedule 2 derives its whole existence from Clause 18, subsection (2) of which states:
"Any question whether a provision contained in a Scottish Assembly Act is within the legislative competence of the Assembly shall he determined in accordance with Schedule 2 to this Act."
I think it is clear—and I hope that I shall be corrected if I am wrong—that Schedule 2 is therefore concerned with, and only with, legislative competence, and not with the possibility of making Statutory Instruments of that kind which are dealt with in other clauses of the Bill.
It is for that reason that, while we are happy to accept the principle that lies behind that part of the Amendment which relates to Clause 35, we are not happy with the Amendment in so far as it relates to "Section 37", as it is properly put in the Amendment. We think that that is not relevant to this matter. Accordingly, I shall in due course be moving Amendment No. 253, which deals with that first point. For the reason I have given, it would not be appropriate to accept the
1052
second part of the noble Earl's Amendment and perhaps, in the light of Clause 18(2) and its provisions, and the character of Schedule 2, he would like to reconsider whether he wants to press that at any stage.
The Earl of MANSFIELD: I am grateful to the noble and learned Lord, but perhaps I may ask him where in the Bill subordinate legislation is dealt with. May I go back to the analogy of rabies? It would be within the competence of the Scottish Assembly to pass a Bill dealing with rabies, if it should come along, and it is quite within the bounds of probability that the Secretary dealing with such matters could, in effect, initiate the necessary subordinate legislation. To quote an example, it might be that dogs on each side of the Tweed should have to wear muzzles if there were an outbreak of rabies, which he thought could spread from the North of England into Scotland. If Schedule 2 does not cover that eventuality, then what does? If nothing does, should it not be written in?
Lord McCLUSKEY: I think the position is that subordinate Instruments are dealt with in a great many places in the Bill, and we are coming fairly soon to some of them. But may I refer, in particular, to Clause 21(1) which states:
"Where, by or under any Act passed before this Act, any power to make, confirm or approve orders, rules regulations or other subordinate legislation is conferred on a Minister of the Crown, then … it shall be exercisable by a Scottish Secretary."
That is one of the examples. Of course, there is Clause 22 and there are various other provisions, including the Schedules, relating to this matter. I am sure that the noble Earl will have noticed them. Does that sufficiently answer his point at this stage?
The Earl of MANSFIELD: I do not think that it does, but I shall not press the noble and learned Lord any further on it tonight, because I am not sure that this is the right part of the Bill. But I am sure that the noble and learned Lord has perceived my point, that there may well be subordinate legislation which is passed in consequence of a future Act. I am well aware of what Clause 21 says about past Acts, but there may be legislation subordinate to, and consequent on, a

1053
perfectly proper Act of the Scottish Assembly, which may then, as it were, be repugnant, although it may be months or years after the passing of the original Assembly Act. That is the situation which I was postulating, and that is part of the situation which this Amendment tries to foresee. But, in the circumstances, I shall not pursue the matter tonight and I beg leave to withdraw the Amendment.
Amendment, by leave withdrawn.
Shedule 2 agreed to.
Clause 19 [Scrutiny of Assembly Bills]:
6.9 p.m.
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 79:
Page 8, line 11, after ("Secretary of State") insert ("and the First Secretary").
The noble and learned Viscount said: It might be to the convenience of the Committee if with this Amendment we consider Amendments Nos. 80, 81, 296, 297, 84 and 88. They all deal with the same subject and with three particular aspects of that subject. Last Wednesday night we had a rather excited debate on the question of the effect of an Assembly Act once it had received the Royal Assent. It was said by my noble and learned friend, whose opinion I always respect even if I do not always agree with it, that for the United Kingdom Parliament to make a law that an Assembly Act which had received the Royal Assent should be the unchallengeable law of Scotland was the negation of the rule of law. I was a little astonished at the limitation on the powers of the United Kingdom Parliament. However, we are not discussing that point tonight and I mention it only for this reason: if we are to have Acts of the Assembly which are challengeable at any time in the courts of Scotland, England and Wales, then it seems to me to be most important to reduce, so far as possible and so far as properly can be done, the number of occasions on which those challenges will be made.
However important it may be that there should be the right of challenge of an Act when it is passed, surely it is much more important that there should be adequate machinery to prevent the Assembly from passing an Act and that Act getting the Royal Assent if, in fact, the Act is outside
1054
the competence of the Assembly. I hope that there will be agreement on that point at least and that tonight we shall not have such an excited debate.
With regard to this matter, my noble friend Lord Home of the Hirsel and I think that the Bill is seriously defective, and I should like to ask the Committee to note three points. I ask the Committee to note, first, that the only person who can refer a Bill of the Assembly to the Judicial Committee for a decision as to whether or not that Bill is within the competence of the Assembly is to be the Secretary of State for Scotland. The second point that I ask the Committee to note is that before he can do so, the Secretary of State must have formed the opinion that the Bill is ultra vires the Assembly. The third thing which I ask the Committee to note is that before the Secretary of State can refer it to the Judicial Committee, the Bill must have passed the Assembly.
Whether or not a Bill is within the competence of the Assembly as dealing with devolved matters is a pure question of law. It involves consideration of the terms of this Bill when it becomes an Act and the terms of the Assembly Bill. It is those two documents which will have to be looked at. It is a purely legal question. Only when that is done can one reach a decision as to whether or not a Bill is within the competence of the Assembly. Under this Bill as it now stands, however, it is not a lawyer who is called upon to decide this legal question. It is the Secretary of State.
Those who hold, and have held, that high office are almost invariably persons of high distinction but I do not think, although I may be wrong, that they have ever been very distinguished lawyers—and that maybe is a matter for regret. Indeed, it was one of the main arguments last Wednesday of my noble and learned friend Lord Diplock that if my Amendment then had been accepted it would have been left to a political figure, the Secretary of State alone, to decide whether or not to make a reference to the Judicial Committee.
We may be told that the Secretary of State will act on the advice of the Lord Advocate. Presumably he will have the advice of the Lord Advocate, but is the Secretary of State bound to act upon it?

1055
If he is not bound to act upon that advice, the Secretary of State—a political figure who is more involved in politics than law officers normally are, although nowadays they seem to be more involved than they were in my day—is surely exposed to the liability of being accused of referring a Bill to the Judicial Committee for political reasons. I should have thought that it was desirable to avoid that liability, if possible. If the Secretary of State is bound to act on the advice of the LordAdvocate,would it not be better in this Bill to put the responsibility on the Lord Advocate for deciding whether or not to make a reference? I should have thought that then he would be far less likely to be attacked on political grounds.
If the Secretary of State forms the opinion that the Bill is ultra vires, and he refers it to the Judicial Committee and if that Committee decides the Secretary of State is wrong and that the Bill is intra vires, what then will be the position of the Secretary of State? He will have held up—it may be for months—and held up wrongly the enactment of an Assembly Bill, and I should have thought that he would be liable to be attacked on that account. And if it be known that he and his Party are opposed politically to the Party which forms the majority in the Assembly, the Secretary of State's liability to be attacked on political grounds for making the reference to the Judicial Committee will, it seems to me, be considerably increased.
If the decision is to be made by somebody who is not a lawyer, as the Bill proposes then my noble friend and I think that it should be not only the Secretary of State who can make the reference but the First Secretary as well. That is the first point which is raised by Amendment No. 79 in this series of Amendments.
However, since tabling that Amendment and the consequentials to it, I have been giving further thought to the matter, and I think now that the Lord Advocate should be the person responsible for deciding in the first place this question of pure law. We were told, I think last Wednesday, by the noble Lord, Lord O'Neill of the Maine, that in Northern:Ireland the practice is to obtain a certificate from the Attorney General of Northern Ireland. The noble Lord said that the system had worked
1056
there very well. I should have thought that such a system would be an improvement. Because we have not put down an Amendment to that effect, I should like to say straight away to the noble and learned Lord the Lord Chancellor that we shall not be pressing that Amendment to a Division. That may give him some slight relief.
That is the first question which is raised by this series of Amendments. The second question is whether whoever has power to refer should have power to do so only when he has decided that the Bill is ultra vires. I think that is too strict a test. The arguments may be evenly balanced and sometimes it may be very difficult to decide that the Bill is ultra vires. When there is real doubt as to whether or not the Bill is infra vires should not there be power to refer it to the Judicial Committee and obtain the opinion of that Committee? As the Bill now stands, if there are doubts they cannot be resolved before the Bill receives the Royal Assent. They can be resolved only following the post-enactment procedure, because the Secretary of State has to be of the opinion that the Bill is ultra vires before he can make any reference. That is the second point.
The third point I want to raise is a related point and there are Amendments down to deal with it. It is this: should a reference be possible only when the Bill has passed the Assembly? One does not know with what speed the Assembly will operate; how long it will take for a Bill to get through the Assembly. It may operate faster or slower than Parliament, but as the Bill stands it is only after it has been through all its stages in the Assembly that a reference can be made. My noble friend Lord Home of the Hirsel pointed out on Second Reading that that might be a very great source of friction. I would think it would lead to a considerable feeling of resentment if, after taking a lot of trouble, perhaps through a hot summer, the Bill gets through the Assembly to be held up by a reference. So we tabled Amendments to enable a reference to be made before the Bill has passed through the Assembly. But, as I see it, that is open to some objection because one does not want every Bill—Bills which have no possibility of being passed but about which there is a doubt as to the competence of the Assembly—to be referred to the Judicial Committee. I think the Judicial

1057
Committee would want it perhaps least of all. But surely it would be desirable in some cases that there should be that power to refer a Bill before it has been passed. As the Amendments which I have tabled stand, I have to recognise that they are defective, so that may relieve the noble and learned Lord the Lord Chancellor again because I do not propose to divide on them. They are defective in that they are drafted only to secure a reference before the Bill has passed the Assembly and where a Bill, during its passage, is so amended as to bring in a position which is ultra vires. On reflection, I think now it would be much better to give whoever has the power to refer to the Judicial Committee a discretion, either to refer a Bill once it is presented to the Assembly, before the Assembly has worked on it, or after the Bill has passed.
What I have in mind is this: If a Bill is introduced to the Assembly by the majority Party in that Assembly, and so is likely to pass, if there were doubts about its vires, it might be convenient to have it referred without delay. On the other hand, if it was a Bill about which it was thought that there was little possibility of it being passed, it might be much more convenient to wait until it had passed. I should like to suggest to the noble and learned Lord the Lord Chancellor that the power to make a reference should be given to the Lord Advocate, that it should be a power to refer in any case of real doubt and at the discretion of the Lord Advocate; it should be a power to refer before a Bill has passed the Assembly, after it has been presented, as well as a power to refer after it has passed the Assembly. Of course the provision about it not being submitted for the Royal Assent, if the Judicial Committee said it was ultra vires, would stand.
I hope I have explained the point of these Amendments sufficiently clearly. I can only ask the Government to give serious attention to them, even if they cannot give an immediate reply. I tabled them with the help of my noble friend because, to my mind, if the Amendments are made on the lines I have suggested, there will be a considerable improvement to the Bill. This would be due to the real need, as I see it, to secure machinery to prevent the Assembly passing a Bill and that Bill getting the Royal Assent when it is ultra vires, which is as good as it can possibly be made. I beg to move.
Lord HOME of the HIRSEL: I am rather sorry that my noble friend and I were unable to draft an Amendment which would provide a pyrotechnic display such as we had the other night. As a member of Lord Lauderdale's third form, I found it entirely enjoyable. From the discussion earlier this evening, I think we see how important it is to introduce a certainty of definition as to what is and what is not a Scottish Bill. One of the most important purposes of this Amendment from my point of view, as my noble and learned friend has said, is to obtain an accurate designation for such a Bill, and at the earliest possible stage.
In the Bill the Government provide for scrutiny, as indeed they must, but it is very late. Like my noble and learned friend, I do not think that in proposing the Secretary of State and the Chief Secretary we have got the right machinery, but we are entirely flexible as to what the machinery should be, and that is why we are not going to press these Amendments. But in the context of Scottish legislation as it is now, we have a precedent, and a successful precedent, as to how to deal with the question of whether a Bill is intra vires or is outside the scope.
I am a little rusty in my recollection of the procedures in another place, but I believe I am right in saying that when a Bill goes to the Scottish Grand Committee it is simultaneously designated by Mr. Speaker to be a purely Scottish Bill. That procedure has many advantages, because from the start the limits of the Bill are known. So far as I know—and I have consulted two ex-Secretaries of State in this House—the judgment of Mr. Speaker in this matter was never questioned, either at the beginning or during the progress of a Bill.
There is another advantage in designating a Bill as purely Scottish at an early stage. The Promoters of the Bill and the legal advisers to the Promoters and the Parliamentary draftsmen know exactly what they have to do. They know that they have to pass this hurdle at an early date, and therefore they take the greatest care that the Bill is in fact intra vires.
My noble and learned friend has said a word or two about the machinery, and my noble friend Lord Harmar-Nicholls earlier recalled (and your Lordships will remember it) the dispute over the hybrid

1059
Bill. I remember that there was a certain procedure there. I think that certain gentlemen were set up as Examiners and those Examiners reported on the Bill. Would it be possible to have Examiners drawn from the officials who serve the Assembly and the officials who serve the Westminster Parliament, and that early on they should pronounce on whether the Bill falls within the scope of Schedule 10? I prefer the suggestion made by my noble and learned friend that it should be the Lord Advocate. The great advantage of the Speaker is that he would be seen to be totally non-political. The Lord Advocate is more or less nonpolitical and is accepted as being nonpolitical in Scotland. I think this is probably the best suggestion; but there are other possibilities, and in moving this Amendment we hope that the Government will consider them and perhaps come forward with a suggestion of their own at the Report stage.
6.30 p.m.
Lord MORRIS of BORTH-Y-GEST: May I express general agreement with the line of thinking behind the speeches of my noble and learned friend Lord Dilhorne and the noble Lord, Lord Home of the Hirsel. Last Wednesday your Lordships debated the question whether it was desirable to have post-enactment scrutiny by the courts. I have discussed the matters involved with my noble and learned friend Lord Dilhorne and he was good enough to say that I was in agreement with the views that he was expressing. I have since read his speech and the speech of the noble Lord, Lord Home of the Hirsel, and I found myself in agreement with their views.
That matter is not before your Lordships this evening, and I would not think it opportune, possibly not even seemly, to reopen discussion on that matter. But what I would submit is that if the view is taken, or may be taken, that there will be post-enactment scrutiny, and if that view is not acceptable to all your Lordships, does it not emphasise the point that it is highly desirable to devise the best machinery possible to ensure that at the earliest moment a Bill that is to come before the Assembly, or possibly a Bill that has been before the Assembly, is one that is within the powers of the Assembly,
1060
and to arrange all that before the stage comes for Royal Assent?
May I remind your Lordships that, though views were strongly expressed last Wednesday that there should be post-enactment scrutiny, this has never been regarded as a straightforward or an easy matter. Indeed Her Majesty's Government took very great care before they arrived at the views that they have expressed. Your Lordships may remember that in the relevant Command Paper of 1976 the Government left that matter open for discussion and they described it as a complex matter. I refer to the Command Paper of 1976 in which it was said:
"The question arises whether after Assent has been given an Assembly Act should he open to review in the courts on the ground of vire; that is, whether the courts should have jurisdiction to declare at the instance of a litigant that an Assembly Act goes outside the powers conferred by the devolution Act. The issue is more than just a legal technicality and there arc arguments both ways.".
Then, very fairly, the Government in the next paragraph summarised the arguments in favour of judicial review. In the following paragraph, very fairly, they summarised the arguments against judicial review, and then said that they welcomed public discussion before there was a final decision. Then in the Command Paper of August 1976 the Government said that the previous Command Paper
"explained the complex problem of whether after an Assembly measure has received Assent by Her Majesty in Council and thus become an Act the courts should be able to consider at the instance of any litigant whether it is within the devolved powers. The Government have weighed very carefully the views expressed and have decided that there should be a right of access to the courts in this respect".
That, if I may say so, is very reasonable. One can understand that. One can respect the decision. One can respect it even though one regrets it. But the whole of that, I suggest to your Lordships, does indicate that there are powerful views that are opposed to the idea that after Her Majesty has given Assent to a measure there should still be opportunity to declare that it was ultra vires.
Does not that all point to the desirability of taking all possible steps to see that what a certain number of your Lordships regard as undesirable—that is, post-enactment scrutiny—should be

1061
avoided by taking the best steps that can be devised to ensure that before the stage conies for Royal Assent it should be determined that the measure is within the powers of the Assembly.
My noble and learned friend Lord Dilhorne has indicated, and the noble Lord, Lord Home of the Hirsel, has indicated, that they both have no settled view as to who should be the prime mover, but I do respectfully strongly support the view advanced by the noble and learned Viscount, Lord Dilhorne, that it should not be left, as it is the present measure, for the Secretary of State to have to come to an opinion and then for the question as to whether he is of a certain opinion to determine the issue whether the matter should go for consideration by the Judicial Committee. I much prefer some word such as "doubts".
I should have thought that if it could reasonably and fairly be argued that a measure is not Ultra vires it would be reasonable to refer that at the earliest moment to the Judicial Committee, or to whatever body is to decide. I should have thought that when any measure is being considered those who sponsor it and those who favour it would go to very great pains to ensure that they are within the powers of the Act. I should have thought those who are opposed to the measure would be alert to raise every point and bring it to the notice of those advancing the measure. That would all be so reasonable. Is not that the time at which these matters should be considered?
It may he that the Lord Advocate should be the person who is to move in the matter. But will not the fears of many of your Lordships who regret the idea of post-enactment scrutiny—that is to say, after Her Majesty has given her Assent to a measure—be met to a considerable extent if every possible means are devised to ensure that at the earliest moment, and in the most clearway, it can be ascertained and determined whether a measure is within the powers given to the Assembly?
Lord KINROSS: I wanted to make two points. In the first place, I support the views that have been put forward by the noble and learned Lords and by Lord Home of the Hirsel as to the necessity of getting a Bill which is going to the
1062
Assembly passed as being infra vices of the Act at the earliest possible moment. This can avoid an enormous amount of time and trouble in the future. The second point I wish to make is that the machinery for this might well be that which is employed in this House and was employed, as Lord Home said, for the Aircraft and Shipbuilding Industries Act not so very long ago, when Examiners were appointed from this House. Whether they are a standing body or not I do not know, but I think they would be the suitable people to adjudicate upon an Assembly Bill before it was submitted to the Assembly. I know that some of them are lawyers and that would be very suitable.
Lord FRASER of TULLYBELTON: On this occasion I am glad to say that I find myself in complete agreement with my noble and learned friend, Lord Dilhorne, particularly on the first of the points that he mentioned a moment ago. I strongly agree that the decision whether to refer a Bill before enactment for consideration by the Judicial Committee or whatever the body may be, would be much more appropriately taken by a lawyer or a legal official, presumably the Lord Advocate, than by the Secretary of State.
I have in mind the somewhat slightly analogous case of Community directives which are considered in this country when they come out in draft. There have been cases where draft directives issued by the European Community have been considered by the Legal Sub-Committee of your Lordships' House and have been thought to be ultra vires. However, the final decision has been on political grounds—and I have no doubt at all on perfectly proper political grounds—that it is not worth fighting it because it would lead to political complications and it is better to let the ultra vires directive go through in the interests of general peace and harmony.
That may be a proper political decision, but if we are to operate a very complicated scheme such as is contained in the Bill, I should have thought that it was quite essential that the decision on whether to remit a Bill for consideration as to the vires should be taken on strictly legal grounds and in no sense on the grounds of political bargaining. If it were done on the latter sort of grounds, it seems to me

1063
that it would lead to endless complications and perhaps very undesirable results. Therefore, I would strongly support the suggestion that the proper person to take the decision is someone—probably the Lord Advocate—who is a lawyer.
The only other matter that I should like to raise on this point is that I suggest that it would really be better to fix the responsibility for referring a Bill on one person—in my view the Lord Advocate—rather than dividing it between two people who might disagree and on whom in any event it is always more difficult to pin the responsibility than on a single person who has to make up his mind. In my view the proper person is the Lord Advocate.
6.44 p.m.
Lord DIPLOCK: Three points are raised by the proposed Amendments. On some of them I find myself in agreement with my noble and learned friend Lord Dilhorne and the noble Lord, Lord Home of the Hirsel, and on others I have doubts and on one I disagree. So far as agreement is concerned, I suggest that, as this is a purely legal question as to whether it is within the legislative competence of the Assembly, it would be better that the decision whether to refer or not be left not to a political Minister but to a lawyer. I venture to think that the obvious person would be the Lord Advocate. unless it would be the Solicitor-General for Scotland.
The question on which I have doubts is the formula suggested as a condition precedent to a reference. At present it is if the person concerned is of opinion that it is not within the legislative competence of the Assembly. It may be that some better formula than that could be used, but if it is merely a question of doubt which makes it compulsory to refer it to the Judicial Committee of the Privy Council then, having looked at Schedule 2 and Schedule 10 this afternoon, there must be many matters upon which one could be described as having doubts and very few on which one could be described as being perfectly confident.
The matter on which I do not agree with my noble and learned friend—I regret having to come to this—is the suggestion that the reference should take
1064
place, or there should be a possibility of reference, before the Bill had been passed by the Assembly and thus was ready for the Royal Assent. It does not seem to me that that would work. As regards whether it is within the legislative competence of the Assembly the question is whether, if it became a Scottish Assembly Act, it would be only within the legislative competence of the Assembly. That means that every clause must be within the legislative competence.
Until a Bill has reached the stage when all the clauses have been settled and until the possibility of amendment has disappeared, it is quite impossible to know what is being referred to the Assembly: and the answer that that is within the legislative competence will necessarily apply when it has reached the later stage, with possibly amendments as well. Therefore, in that respect I agree with the provision in the Bill that it should be only after the Bill has passed the Assembly and is ready for the Royal Assent.
Lord HOME of the HIRSEL: I should like the noble and learned Lord to enlighten me about this. After all, the procedure of vetting a Bill before it is introduced has been undertaken by the Speaker over all these years with great success and everyone from that moment knew where he was, and amendments which fell outside his ruling were almost automatically dismissed and it was accepted that they should be dismissed because he had ruled them virtually out of order from the start.
Lord DIPLOCK: The essential difference is that once an Act has been passed by the Parliament at Westminster, whether it be called a Scottish Act or whatever, it is law, and it is unquestionable. No one can go to the courts and say: "Please say that this is ultra vices as it is not a Scottish Bill because the Examiners were wrong when they said it was". However, with an Assembly Act, after it has been enacted anyone who is affected by it can go—I hope it will be to the House of Lords—at any rate to the courts, and say: "No, this was ultra vires" and it is their word and their decision that matters and not that of any Examiners who looked at it before.
Lord WILSON of LANGSIDE: In venturing to express support for this series of Amendments may I say a brief word on the situation of the Lord Advocate. Of course, if it were expressed to be the responsibility of the Secretary of State then the Secretary of State, as the noble and learned Viscount, Lord Dilhorne, said, would have the advice of the Lord Advocate. In the real world in which Lord Advocates and Secretaries of State live, it is, for practical purposes, unthinkable that in a matter of this sort a Secretary of State would proceed other than in accordance with the advice that the Lord Advocate tendered to him.
There is, of course, in an indefinite future or an uncertain future always, as they say, "a first time" and it may be that the best course to take—if it is decided that the Secretary of State is not the appropriate Minister because he is too political a figure—would be to put the responsibility where, in the real world as we have known it to date in this kind of area, it has always rested: namely, on the Lord Advocate.
Lord SCARMAN: I should like to address myself to what my noble and learned friend Lord Wilberforce said earlier this afternoon—the pith and substance of the Amendments. The Amendments are themselves defective and therefore there is not much point in looking in any detail at their terms. However one matter does seem to me to have been overlooked in our discussions so far and that is that Clause 19(1)(a) of the Bill makes it mandatory upon the Secretary of State, if he is of opinion that a Bill is not within the legislative competence of the Assembly, to refer the question to the Judicial Committee. With respect to those who have preceded me in the debate I should have thought that it was essential to retain in the Bill that duty if the Secretary of State reaches that opinion.
Of course, there is another problem which has been much canvassed in dealing with these Amendments, and that is what is to be the duty of the Secretary of State or the First Secretary if he is in doubt? indeed, for the reasons mentioned briefly by my noble and learned friend Lord Diplock, even after consulting the Lord Advocate and other lawyers of almost comparable brilliance and distinction, he
1066
may be in doubt, after he has puzzled his way through Schedules 2 and 10 of the Bill. Clearly something must be done—and this is where, respectfully, I agree with the pith and substance of these Amendments—to ensure that a reference may be made pre-enactment by a Secretary of State, a Lord Advocate, or whoever is the appropriate authority, if there is doubt, but that must be discretionary.
I would ask your Lordships to give serious thought before proposing the deletion from the Bill of the duty upon the Secretary of State if he reaches a clear opinion. Of course, that opinion may be wrong and that is why it is so valuable that he should not act upon it, except by referring it to the Judicial Committee of the Privy Council for a ruling. That is the only point I wish to make. If it is of any interest or assistance to your Lordships, I point out that I support the broad line taken by my noble and learned friend Lord Diplock on these Amendments.
6.51 p.m.
The LORD CHANCELLOR: First there seems to be common ground about the necessity for proper scrutiny of the vires of an Assembly measure before an Assembly Bill is submitted to Her Majesty in Council for the Royal Assent. There also seems to be a desire that whatever steps are taken to test the question of vires should be taken in such a way as to minimise the friction between Governments, Assembly and Parliament. Both those propositions at any rate, out of the welter of difficulty, seem to be agreed.
On the first matter, what is proposed in the Bill has the merit of clarity and it leaves the responsibility for initiating the process of reference to the Privy Council to the Secretary of State. I note that the officer is described as "the Secretary of State", and I should like to give further thought to the possibility that that may not necessarily be limited to the Secretary of State for Scotland. In the ordinary language of an Act of Parliament it is certainly not limited. However, in practice, I apprehend that it is the Secretary of State for Scotland who will be primarily involved in these activities.
I think that we have perhaps been in danger of forgetting that a decision on whether or not there should be a reference is not taken in isolation. Quite a series

1067
of steps will have been taken during the progress of a Bill when the question of vires will certainly have been capable of being considered and will, I am sure, have been considered. The Scottish Executive itself, which will presumably introduce the measure, will be guided by its own Law Officer on any question of the extent of the competence of an Assembly Bill. It can reasonably be expected that the presiding officer of the Assembly and the Clerk to the Assembly would provide proper advice on the vires question. I have little doubt that standing orders will be set up to provide a formal check of the question of vires, or even certification of the question of vires in relation to the Bill itself, when it is introduced, and in relation to any Amendments that may be moved during the passage of the Bill.
Therefore, there is that machinery which will be astute enough to examine the question of vires. We must assume that we are dealing with responsible officials, responsible lawyers and a responsible body of men constituting the Assembly, who will not be operating at arms' length with their opposite numbers; but there will be consultation at the political level and at the highest level.
Of course the Secretary of State will have available to him the advice, not only of the Scottish law officers but, of course, of the Attorney-General and the Solicitor-General, and such other advice that can be obtained from Whitehall. So a whole range of advice will be available to the Secretary of State, and closest to him, of course, will be the Lord Advocate. Therefore, in my submission, given that considerable collection of opportunities for practical examination of vires as the proceedings continue, I apprehend that at the end of the day it will he rare indeed that this very problem will arise. However, we cannot exclude the possibility that it may arise, and that is the occasion for intervention by those outside the Assembly; namely, the Secretary of State or whoever Parliament decides the person should be.
As I have said, the Secretary of State will not only have the advice of his own Lord Advocate or the Solicitor-General but he will also have contact with, and the availability of advice from, the Attorney-General and the Solicitor-General in London. Therefore, it is more appropriate
1068
in all those circumstances that it should fall to the Secretary of State to make this important decision. I agree that it is eminently a legal question; indeed, it is entirely a legal question; but it has very important political implications and complications. Therefore, I respectfully submit that the view that the Secretary of State should be the linchpin is the right one.
Then comes the question as to, so to speak, the state of mind in which the Secretary of State should operate. appreciate the information of the noble and learned Viscount, Lord Dilhorne, that we need not penetrate the details of these Amendments, which he will think about again. No doubt, therefore, we shall have to return to the nuts and bolts of what is proposed at a later stage. There is a proposal that instead of the Secretary of State having to be of the opinion that a Bill is not within the legislative competence of the Assembly, it will suffice for him to put in train the operation of a reference to the Judicial Committee if he doubts whether a Bill is within the legislative competence of the Assembly.
I think that a requirement should be placed firmly upon the Secretary of State to make up his mind whether lie thinks there is something wrong and that the Bill is ultra vires; then lie should act and refer. The difficulty of leaving the matter in the stage of doubt, a mere scintilla of doubt—or whatever the nature of the doubt may be: it is not identified, or qualified—is that it could result in a very large number of unnecessary references to the Privy Council. At any rate, before he presses any further amendment of that proposal to a Division, I invite the noble and learned Viscount to consider the language of the Amendment, according to which the Secretary of State has to be of opinion, and has to come to a decision on the matter.
Next comes the question of the point at which the intervention should take place. Under the proposals of the Bill, it takes place after the Bill has been through and been passed by the Assembly. It is suggested that, in addition to the power to intervene at that stage, there should be a further power to intervene at an earlier stage. That would at any rate duplicate the possibility of friction, would it not? I see great force in the

1069
observations of the noble and learned Lord, Lord Diplock, as to what might be the consequence of that.
If the matter is to be referred at the stage of presentation, that will mean that at the stage of presentation of all Bills the Bill will have to be examined, presumably by the Secretary of State, for vires. In proceeding through the Assembly, as through Parliament, many Bills will of course fall by the wayside, especially the large number of Private Member's Bills—and I assume that there will be machinery for Private Member's Bills being introduced before the Assembly. Before ever they reach the richness of fruition of being passed by the Assembly, they will have fallen by the way. Is it really necessary that, before the stage of the decision as to whether the Bill survives the Assembly, Bills which may have no hope of survival should nevertheless, because they contain a vires element, have to be referred to the Judicial Committee? In my respectful submission, that would be an unnecessary burden to impose upon it. This constant presence of the Secretary of State over the proceedings of the Assembly from the moment the Bill is presented would create the maximum of irritation from the beginning of the procedures in the Assembly right to the very end, and, even after the intervention at the beginning, the Assembly would still have to face the possibility of "Big Brother" coming in again at the very end.
I invite noble Lords to the view that this double process of intervention would increase irritation, and that irritation would be increased if, as I understand was originally contemplated by the noble and learned Viscount, Lord Dilhorne, there were to be intervention when Amendments are introduced and moved during the progress of the Bill. That really would be a constant intervention, fussiness, overseeing, shadowing each stage of the progress of a Bill through the Assembly. That again would be a prescription for irritation and friction, and not for reasonable collaboration. Whitehall would be ever present in the legislative process.
In the light of these submissions which I make to your Lordships, I venture the view that on the whole—this matter is not easy—what is proposed in the Bill is probably most calculated to achieve the
1070
twofold purpose I mentioned at the beginning, and which is common to the House, of effective scrutiny before Royal Assent, and avoidance of friction so far as is reasonably practicable in any relation between Parliament and a subordinate legislature.
7.4 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: I am sure that the Committee is grateful to the noble and learned Lord for his exposition of the subject. I do not want to prolong this discussion which has been interesting and, being obviously highly technical, is not one upon which these Benches would wish to express a collective opinion of any kind. However, the House as a whole will have to come to a decision in these matters in the long run, though not on this occasion as my noble and learned friend Lord Dilhorne has indicated his desire not to pursue the matter at this stage.
Nevertheless, it might be of assistance both to the noble and learned Viscount and to the noble and learned Lord the Lord Chancellor if I briefly described what we on these Benches tend to think about these three quite separate problems. In the first place, I personally agree with my noble and learned friend Lord Diplock and the noble and learned Lord the Lord Chancellor, that, on reflection, it may be accepted that the point of reference ought to be after passage through the Assembly. The reasons for that have been so fully rehearsed by the noble and learned Lord and by my noble and learned friend Lord Diplock that I do not think I want to repeat them. I think that they are on the whole conclusive.
However, there is a point on which I still retain a good deal of doubt about the present phraseology of the Bill, and I hope that the noble and learned Viscount, Lord Dilhorne, will return to this at a later stage. It is the question of what happens when, without being definitely of the opinion that a matter is not within the powers of the Assembly, the Secretary of State, or whoever is selected as the appropriate officer, is of the opinion that a serious or substantial question arises as to whether a matter is or is not within the competence of the Assembly.
I myself am convinced, as was the noble and learned Lord, Lord Scarman,

1071
that in such a case there ought to be a reference. I quite see that where the Secretary of State can make up his mind he ought to make up his mind to refer it if he is quite clearly of the opinion that the matter is ultra vires, but anyone who has rambled through Schedules 2 and 10 must realise that great doubts can arise under them, the more so as this particular section of the Bill relates not merely to a Bill as a whole as it comes before the Assembly but to any provision of a Bill. One of the subsections clearly refers to that.
I should have thought that, in everybody's interest, it was desirable that, where a substantial question arises as to vires, there should be pre-enactment review and that the matter should be referred, assuming that the matter is of sufficient size to make it worth while and that there is sufficient probability of its arising in practice. Obviously, as the noble and learned Lord, Lord Scarman, has said, an element of discretion, would in such a case have to be left to the Secretary of State or the Lord Advocate, as the case might be, but I do not think that, in promoting this reference to the Judicial Committee, one should overlook the possibility that the Secretary of State or Lord Advocate might come to the conclusion that it was far better to clear the matter up, without coming to the conclusion that it was positively ultra vires.
7.8 p.m.
Viscount DILHORNE: I think that we have had a useful debate. I rather suspect that the noble and learned Lord the Lord Chancellor was expecting me to confine myself strictly to these Amendments because it seemed to me that some part of his reply was more related to the Amendment than it was to my speech. I never suggested in my speech that a Bill should be referred after every Amendment had been made to it. I suggested no duplication of that sort. What I suggested was that whoever had the duty, or power, to refer ought to have a discretion as to when he did refer. In some cases it might be convenient—it might be by agreement—to refer it at an early stage; in other cases only when it has passed through all its stages in the Assembly.
1072
I also pointed out that if amendments happened to be made during its passage, one might have to refer that amendment, but I was not, in moving this group of Amendments, pinning myself to one particular point of time for a reference but speaking in favour of giving more discretion to whoever it is to make the reference as to the particular time when he should do it because it might be convenient in some cases to wait to the end and in some cases not to do so. The answer to my noble and learned friend Lord Diplock is of course that if one referred at the beginning and no amendment was made which could possibly raise the question of vires, one would not have to consider referring again; if an amendment was made raising such a question, one would merely refer that particular provision.
That is not the most important point raised by this Amendment. I think the really important point is this. In what circumstances should a reference be made? I have no objection to the proposal put forward by my noble and learned friend Lord Scarman. If the Secretary of State reaches the opinion that a Bill is ultra vires, then of course there must be a reference to the Privy Council. That is as the Bill stands. But I do not think that goes far enough because, if there is no power of referring a Bill where there is a real doubt about the vires, then one is leaving the test of its validity entirely to the post-enactment procedure. I feel very strongly that there should be a power, I suggest a discretionary power, on the Secretary of State or whoever has the duty, where he thinks there is a real positive doubt—and I am not trying to draft while on my feet—to refer and get that doubt resolved by the Judicial Committee.
It is all very well for my noble and learned friend to say that one need only look through Schedule 10 to see there is a doubt in every line; I do not entirely agree with that observation because I think the Bill is better than that. At the same time, I should be perfectly content to leave it to whoever was the person in charge, in the exercise of his discretion, to be able to refer where he thought there was real doubt.
I come to the third and final question: who should be the person to decide? The noble and learned Lord the Lord

1073
Chancellor went through the whole list of the people who would give advice to the poor Secretary of State, a layman. I should have thought the debates in this Committee would have indicated how infrequently it is that legal advice is unanimous. There will be the poor Secretary of State having advice from the Solicitor-General for Scotland, from the Lord Advocate, from all kinds of people and even, the Lord Chancellor said, from the Attorney-General and the Solicitor-General. The only person left out, I noticed, with some care was the Lord Chancellor—the noble and learned Lord left himself out—and no doubt that was absolutely deliberate and not inadvertent; we discussed "deliberate" and "inadvertent" earlier.
Be that as it may, what is the poor Secretary of State to do? He is not the right person to decide purely legal questions. I ask the Lord Chancellor to consider again how much any Secretary of State will be exposed to attack unfairly if this responsibility is put on him. I believe it would be much better if it were left to the Lord Advocate. The Lord Advocate has to initiate proceedings when it comes to the court; let him initiate a reference. I think that would be acceptable and would reduce the possibility of friction. I cannot go with the Lord Chancellor in the suggestion that, contrary to the intention of these Amendments, they would he likely to promote friction.
I ask the Lord Chancellor to give serious consideration to this again by giving him the power—this is the one to which I attach most importance—to refer where there is real doubt and where it is really in the public interest that that doubt should be resolved. Do not put it on the Lord Advocate or anyone else to have to make a decision and then possibly be condemned or found to have made the wrong decision by the Judicial Committee. We have had a useful debate and, with the leave of the Committee, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 80 and 81 not moved.]
Lord STRABOLGI: My Lords, I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

HOUSING (FINANCIAL PROVISIONS) (SCOTLAND) BILL
Report received.
7.15 p.m.
The DEPUTY SPEAKER (Lord Segal): My Lords, I must inform the House that, owing to printing difficulties, there is no Marshalled List, so it will be necessary to describe the Amendments as the first, second, third Amendments, and so on.
Schedule 2 [Minor and consequential amendments]:
Lord KIRKHILL Lord KIRKHILL moved the first and second Amendments en bloc:
Page 16, line 25, after ("includes") insert ("(a)")
after ("houses") insert ("; or (b) a house or houses and other premises.".")
The noble Lord said: My Lords, these Amendments deal with a small technical point; the intention in the Bill is not modified because of them. The purpose is to clarify and secure beyond doubt the original intention behind the amendment of Section 24 of the Housing (Scotland) Act 1969 which is to bring within the scope of the repairs notice procedure commercial premises in tenements or other buildings containing houses in disrepair. The wording of paragraph (7) of Schedule 2 was modified to meet the wishes of the Opposition, accepted by the Government at House of Commons Committee stage. The intention was to make it clear that non-housing premises within a building could be brought within the scope of repairs notices issued by a local authority under Section 24 of the Housing (Scotland) Act 1969 and would meet their share of the costs. The Government accepted the principle of that Amendment. It is only right that the owners of, for example, commercial premises in a building which includes houses—say a tenement building in Scotland—should share responsibility for common repairs required and should be made the subject of a repairs notice. The present wording of paragraph 6(d) might still not be construed as allowing a repairs notice to be issued in respect of a building which included premises other than houses. The insertion of the phrase

1075
";or (b) a house or a houses and other permises" puts the matter beyond doubt.
Lord CAMPBELL of CROY: My Lords, we are grateful to the noble Lord, Lord Kirkhill, for explaining these two Amendments. They appear to be drafting and consequential, following acceptance by the Government in another place of a Conservative Amendment, and these two Amendments continue the purpose behind the agreement in another place and I commend them to the House.
On Question, Amendments agreed to.
Lord KIRKHILL Lord KIRKHILL moved the third Amendment:
Page 16, line 30, after ("among") insert ("the persons having control of").
The noble Lord said: My Lords, this is another minor technical Amendment which, like the first two, does not modify the intention of the Bill. Paragraph (7) in Schedule 2 would at present amend the Housing (Scotland) Act 1969 to the effect that the cost of repair works undertaken by a local authority consequent on a repairs notice is apportioned amongst houses and other premises in a tenement building. It is now considered necessary to provide specifically that the apportionment is to identifiable persons, thus bringing the Bill into line with the existing provisions in Section 25(1) of the 1969 Act.
On Question, Amendment agreed to.
Lord KIRKHILL Lord KIRKHILL moved the fourth Amendment:
Page 16, line 39, at end insert—
("8A. In section 16(3) (rent allowances to private tenants)—

(a) after the word "person" where it first occurs there shall be inserted "(a)";

(b) at the end there shall be added the words "or (b) who is a tenant of a house which has or had on the appropriate day a rateable value not exceeding £600 and who would be such a protected tenant or statutory tenant if the house of which he is a tenant has or had on the appropriate day a rateable value not exceeding £200.

In this subsection "appropriate day" means—

(i) in relation to any house which on 1st April 1978 comprised or formed part of land and heritages for which a rateable value was shown on the valuation roll then in force, means that date, and

1076

(ii) in relation to any other house means the date on which such a value is or was first shown on the valuation roll.".")

The noble Lord said: My Lords, I apologise to the House for introducing this Amendment at such a late stage. Its purpose is to correct a serious anomaly which has only recently come to light. The anomaly concerns the effect of the recent revaluation of property in Scotland on the scope of the rent allowance scheme. If the Amendment is not made, a number of tenants will be denied access to a rent allowance for which they would have been eligible but for the revaluation.
The scope of the scheme—with one small exception—is defined by reference to the criteria for protected tenancies under the Rent Acts. One of these criteria is a rateable value limit contained in Section 6 of the Rent (Scotland) Act 1971. That rateable value limit affects the eligibility of tenants for a rent allowance, even if their tenancy is not itself protected. For example, it affects tenants of housing associations—the group which, in practice, is most likely to be affected by the anomaly.
The problem is caused by the revaluation which took effect from 1st April this year. A newly-built or converted house whose rateable value is fixed for the first time after 1st April this year, is likely to have a rateable value roughly three times as large, on average, as the value which would have applied to comparable property prior to revaluation. In these new circumstances the statutory limit of £200 rules out new and converted property of a standard which was always intended to be within the scope of the rent allowance scheme. The Amendment seeks to remove the anomaly by introducing a new limit of £600 for the purpose of the rent allowance scheme.
My Lords, the simplest, and obvious, way of achieving the objective would be to alter the rateable value limit in the Rent (Scotland) Act 1971. But such an Amendment would be outwith the scope of this Bill. But we can deal with the point in the present Bill by amending the scope of the rent allowance scheme. The terms of the Amendment reflect the complexity of achieving the desired effect without either significantly widening or narrowing the scope of the rent allowances scheme.
This is a detailed, but important, Amendment which I felt should be put before your Lordships without delay. I wish to acknowledge in public the consultations I have had with the noble Lord, Lord Campbell of Croy, who, with complete impartiality, and utter fairness, permitted the Amendment to come forward this evening. I confess that we have had to prepare it in a rush, and I think that we will wish to make a small, but vital further change to make quite sure that we preserve the right to rent allowances of housing association tenants, and similar categories. It is a complex piece of drafting, but I think that your Lordships would want us to get it absolutely right. Therefore, there may be a further minor Amendment at Third Reading. I beg to move.
Lord CAMPBELL of CROY: My Lords, again we are grateful to the noble Lord for explaining the Amendment, which is the substantial Amendment to the Bill at this stage. It seeks to remove unfairness to a number of private tenants, an unfairness which would have arisen due to the effects of the recent valuation on the rent allowance scheme in the 1972 Act. I would remind your Lordships that the rent allowance scheme is the counterpart to the rent rebate scheme in the public sector, and my understanding is, as the noble Lord has explained, that most of those affected in Scotland are private tenants of housing associations, rather than other private tenants; and I saw the noble Lord nodding just now because I was responsible for the 1972 Act and for bringing in the rent rebate schemes and the allowances for private tenants. I hope that the noble Lord will look very carefully again, as he has suggested he will, to see that he has the wording absolutely right to cover all the tenants of housing associations whom we both have in mind. I shall certainly be ready to acquiesce in any change that may be necessary to make sure that the categories we have in mind are completely covered.
The noble Lord has confirmed that the Government must have realised only recently that the revaluation had this effect, and the noble Lord was good enough to let me know in the middle of last week that this Amendment was probably needed. From these Benches, we have no objection to holding the
1078
position for the benefit of these private tenants until the time comes for a more appropriate Act to be amended. Thank heavens that this House exists! If there were no Second Chamber, it would not be possible at this stage to make sure that this unfairness did not arise. These private tenants would have found themselves being, unintentionally, discriminated against. This is a comparatively straightforward Bill, and it has had full examination in several days of Committee in another place; yet this point has come up only at this stage. Several Government Amendments were made at Committee stage, and now there are these at Report stage. When a Bill is passing through Parliament revision, second thoughts, and even further thoughts occur, and these must be regarded as normal. The Second Chamber makes sure that there are opportunities of improving the legislation and ensuring that a Bill is as good as it can be before it leaves us.
On Question, Amendment agreed to.
Lord KIRKHILL Lord KIRKHILL moved the fifth Amendment:
Page 25, line 27, at end insert—
("37A. In section 6(I)(b) (payment of improvement grant) for the words" or 7(4) "there shall he substituted" 7(4) or I0A(4)".")
The noble Lord said: My Lords, this is a further minor consequential Amendment. It is of a purely drafting character. I beg to move.
On Question, Amendment agreed to.

EUROPEAN COMMUNITIES (DEFINITION OF TREATIES) ORDER 1978
  EUROPEAN COMMUNITIES (DEFINITION OF TREATIES) (NO. 2) ORDER 1978

    EUROPEAN COMMUNITIES (DEFINITION OF TREATIES) (NO. 3) ORDER 1978
    7.27 p.m.
    Lord GORONWY-ROBERTS: My Lords, I beg to move that the draft European Communities (Definition of

    1079
    Treaties) Order 1978, and the draft European Communities (Definition of Treaties) (No. 2) and (No. 3) Orders, 1978, which were laid before this House on 20th March, be approved.
    The Schedule to the first order contains four co-operation agreements between the EEC and the Mashraq countries; that is to say, Syria, Jordan, Egypt and the Lebanon. The Schedule to the (No. 2) order 1978 contains Agreements between the European Coal and Steel Community, and the same Mashraq countries, while the (No. 3) order contains similar agreements between the ECSC and the Maghreb countries; that is, Tunisia, Morocco, and Algeria. The agreements which are the subject of the present orders are similar to the three EEC/Maghreb agreements which the House debated last November. They represent another important plank in the Community's Mediterranean policy, known as the overall Mediterranean approach.
    This approach, devised in 1972, is aimed at putting the Community's trade and aid relations with its developing Mediterranean neighbours on a more coherent footing. Previously there had been only a series of piecemeal arrangements, but since 1972 the object has been to treat the developing Mediterranean countries as consistently as possible, bearing, in mind their different needs and capacities. As applied to the Mashraq countries, this approach has meant revising and improving existing agreements with Egypt and the Lebanon, and concluding, for the first time, agreements with Syria and Jordan.
    As regards contents, noble Lords will, I hope, have found adequate detailed information in the Explanatory Memoranda, which have been laid before the House, accompanying the texts of the Agreements contained in the various Command Papers. I shall, therefore, confine myself to a few general remarks about the provisions of the treaties. With regard to the trade provisions, the most notable feature of the EEC Mashraq agreements, covered by the order, is the encouragement they give to the development of industry in the four countries concerned through the almost complete removal of tariff barriers on those countries' industrial exports to the Community. In
    1080
    addition, the Community has agreed to forgo reverse preferences; that is, the Mashraq countries are not required to reduce the tariffs which they apply to Community exports for the purpose of protecting their own developing industries.
    I suppose there is a danger that in encouraging industry in developing countries the Community will harm its own industries, particularly those which are currently experiencing difficulties, such as the textile and oil refining industries. To guard against this danger and to strike a balance between the spirit of co-operation and that of prudence, the Community has retained the right under the Mashraq Agreements to apply the full rate of Customs duties on quantities of products, such as certain textiles and refined petroleum products, shipped in above certain ceilings. This right expires at the end of 1979; but thereafter the Community will continue to be protected by clauses in the agreements themselves providing for safeguard measures to be taken in the event of upsurges of imports causing serious economic disruption.
    On the agricultural side, under the terms of the Mashraq Agreements the Community will grant tariff concessions on various products such as citrus fruit, vegetables and grapes. As with the industrial concessions, various restrictions are placed on these concessions to protect the Community's own agricultural production, particularly by application of calendars—that is a phrase which rather attracts me, the "application of calendars"—which means that tariff concessions are granted only for periods during the year when there is little or no Community production of the product in question.
    Besides laying down terms of trade, the treaties before us today also make provision for economic and financial co-operation with the Community. The precise nature of the economic cooperation remains to be defined in future discussions between the Community and its partners. The treaties do, however, lay down broad guidelines—such as promotion of private investments, promotion of businessmen's visits, assistance with marketing and co-operation in the fields of science and technology—and also provide for the creation of machinery to supervise the carrying out of this co-operation. This machinery will take the

    1081
    form of Joint Co-operation Councils meeting yearly to review progress and decide how co-operation can best be defined and further pursued.
    With regard to financial co-operation, the details vary, of course, from treaty to treaty, and they are set out in the Explanatory Memoranda. In the case of the Mashraq countries, the financial co-operation is mixed; that is, it consists of European Investment Bank loans, raised on the world market, which are then extended to the Mashraq countries on concessionary terms, thanks to interest-free subsidies provided from the Community budget. In addition, in some cases there are grants.
    In looking at the detail of the various agreements it is important to remember that they are intended to form a composite whole aimed equally at encouraging trade and at promoting the development of the countries concerned through co-operation with the Community. Each aspect of relations which the agreements cover—trade, economic co-operation and financial co-operation—is intended to be complementary to the others. Thus, trade concessions on industrial products should, when the agreements come into force, be matched by Community-backed investment in those industries which can eventually find markets for their products inside the Community. This approach towards development as something inseparable from trade policy represents the extension into the Mediterranean of the philosophy behind the already existing Lome Agreement between the Community and 52 African, Caribbean and Pacific States, which are all, of course, developing countries, though the stress in the Mashraq and other Mediterranean agreements is inevitably slightly more on industrial developments than on agricultural developments, given the differences between the economies of the Mediterranean countries and those of the Lomé countries.
    The agreements we have before us are not only important economically and developmentally. They also contain a political dimension, in that throughout the negotiations a close parallel was observed between the way the Mashraq countries were treated and the way Israel is treated in its agreements with the Community. This parallel reflects the Community's even-handed attitude in the Middle East
    1082
    question. Politically, commercially and developmentally, therefore, the treaties before the House today represent important achievements for the Community. As additions to an already long list of agreements between the Community and third countries, the agreements reflect what I think may fairly be described as the outward-looking character of the Community, and also the way other countries, particularly developing countries, increasingly look towards the Community as a partner.
    The Schedule to the (No. 2) Order 1978 covers four European Coal and Steel Community Agreements with the Mashraq countries; that is Syria, Jordan, Egypt and Lebanon. The three treaties covered by the (No. 3) Order deal with agreements reached by the ECSC with the three Maghreb countries—that is, the Maghreb countries as distinct from the Mashraq countries, the Maghreb countries to which we refer being, of course, Tunisia, Morocco and Algeria.
    In view of the subject matter of the agreements, it might be thought that they could encourage the countries concerned to develop their steel industries more rapidly than they might have done without the agreements. While this is a possibility, we have to bear in mind that part of the purpose of these agreements is to encourage economic development in the countries concerned. Having said that, we should not lose sight of the fact that total steel production in the Maghreb and Mashraq countries is small. Also, these countries will be well aware of the world steel situation, and this is likely to discourage them from taking the financial risks involved in vastly increasing steel capacity at this time. From what we know of the forward plans of the Maghreb and Mashraq countries up to the mid-1980s, there appears to be little cause for concern on this score. Our bilateral trade in ECSC products is currently at a very low level, and the balances in all cases are in our favour. In any case, there are, of course, safeguard provisions in the agreements, which I am satisfied and I am sure the House will also be satisfied—are adequate to cover the relatively slight risk of disruption of trade. My Lords, I beg to move.
    Moved, That the draft European Communities (Definition of Treaties) Order

    1083
    1978, laid before the House on 20th March, be approved.
    That the draft European Communities (Definition of Treaties) (No. 2) Order 1978, laid before the House on 20th March, be approved.
    That the draft European Communities (Definition of Treaties) (No. 3) Order1978, laid before the House on 20th March, be approved.—(Lord Goronwy-Roberts.)
    7.38 p.m.
    Baroness ELLES: My Lords, I should like to take this opportunity to thank the noble Lord, Lord Goronwy-Roberts, for moving these draft orders and for giving a very full and ample description of their content and purpose—if I may say so, a complete complement to the Explanatory Memorandum which we have already had at our disposal, and for which I am personally extremely grateful. It is, of course, relevant to say in relation to these co-operation agreements, and agreements, that we are now dealing with an area of the world where the EEC in fact has its main trading partner. The Arab League has now reached that stage, and I think this is very largely due to the "global approach", as it is called, that the European Communities have been pursuing since 1972, fully supported in this area, I am thankful to say, by both Governments, the Conservative Government followed by the present Government. I think they have made a very large contribution to the benefits of the people of those areas.
    I am not going to go into great detail over these agreements, and the noble Lord has already touched on them, but I think that we should sometimes be rather pleased with ourselves in the European Community. It is so often knocked about in this country for its supposed internal failures, but this, I think, can be called a success area of the Community policy: that is, in the external policies and the way it has gone out to help such a vast and important area of the world. In this particular case, we are referring, as the noble Lord, Lord Goronwy-Roberts, rightly indicated, to the Mashraq and Maghreb areas of the Arab countries—all of which, as he said, are in deficit to the Community. It is in no way a way of considering we are enriching ourselves
    1084
    at the expense of rich Arab countries; it is quite the reverse. These agreements go towards helping those particular areas of the Arab League which are in deficit.
    Here again, I think it should be said that, when so much is said by the developing countries at the UN and in other international fora about the North/South dialogue and the new international economic order, this, to me, is the new international economic order. The West is actually contributing to the social and economic development of these people—and in a very concrete way. This is the result of the North/South dialogue. I think we should sometimes say this with more force than we do.
    After all, one aspect of this is that, under these arrangements, financial assistance is going to be given to these countries over the next three years until 1980, to the tune of 630 million units of account. That is no small figure coming from the European Community to an area supposedly so rich in oil and where parts of that area are investing heavily in the West. Sometimes we should remember what we are doing for other countries as well as being knocked for so many other things that in the eyes of the world we apparently seem to be failing to do. This, I believe, is a success story.
    I think that there are some things that we have to be careful about, particularly in relation to agricultural products. I should be loth to see free imports of agricultural products which are already being produced by the Southern part of the Community and might affect farming and the lives and financial success of farmers on the Northern shores of the Mediterranean within the European Community. This will have to be watched so that they are in no way harmed by these agricultural imports.
    I think that we should be aware also of the enormous increase in trade which we now have with these countries. One figure which came to light in some of the documents I have read is that in 19651967 exports were worth in the region of 3,000 MUA and by 1973-1975 they were worth 11,000 MUA. I give this figure merely to indicate the interchange of financial, technical and other assistance being developed between these two very important areas of the world—and in

    1085
    particular, I would say, that, in a way, the West can help this part of the world to develop its economic and social wealth in order to contribute to the maintenance of peace in what is a crucial and delicate area in international affairs.
    There is one other thing which I think is also relevant. It is not only financial and commercial dealings that we are having with these countries. In the West, and in the Community, there are over 800,000 migrant workers from these countries; their rights are protected under these agreements and in connection with them and as a result of them. For instance, there is in Article 43 one of these cooperation agreements between the EEC and the Lebanese Republic under which their nationals are protected within the arrangements made by these agreements. This is a valuable contribition to better understanding between races of different parts of the world.
    I shall not keep your Lordships much longer. I am grateful to the noble Lord for having introduced these orders and I should like, on this side of the House, to recommend that we approve them.
    Lord BANKS: My Lords, I should like briefly to join with the noble Baroness in thanking the noble Lord, Lord GoronwyRoberts, for his thorough explanation of these orders. I should like to welcome the extension of what he described as the overall Mediterranean policy by means of these treaties. I was interested in what the noble Lord said about the application of the Lome philosophy to the Mediterranean countries; and the fact that no reciprocal tariffs are insisted upon is an aspect of that philosophy. I very much appreciate what he has said about the even-handed approach of the Community as far as the Arab countries and Israel are concerned.
    Finally, I should like to say that I think it very important to strengthen the overall Mediterranean policy at the present time because it may be under some degree of pressure once we proceed to enlargement of the Community, bringing Mediterranean-type countries within the Community. For these reasons, I welcome these orders and hope that the House will support them.
    7.46 p.m.
    Lord GORONWY-ROBERTS: My Lords, may I briefly express my apprecia
    1086
    tion of both contributions to which I think the House has listened with the greatest of pleasure. No questions have been asked of me. I think that is a tribute to the inter-Party way in which we all worked over the need to improve the provision of information in respect of orders like this, which can be very complicated, legally and economically.
    I should like to express my appreciation of the contribution made from the Bench opposite and from the Liberal Benches in making it possible for this information to be made available more fully, more precisely and more understandably in its present form. The Explanatory Memoranda, I think, must rank as papers of great capacity and clarity; and I was delighted to hear the noble Baroness refer to them.
    As she said, this constitutes a major achievement by the Community. What she said was echoed by the noble Lord, Lord Banks, when he reminded us of the nature of the EEC which is, after all, not so much expansionist as outward-looking. There is a difference. There is nothing imperialist about the Community; it is increasingly universalist, which is a different thing to be. Those of us who spent rather reluctant periods of their very early lives in reading the classics—reluctantly, but with later profit—will recall that the Romans—great pioneers in civilisation and government, and in many ways, in economic planning—always regarded the Maghreb and Mashraq countries as part of Europe for these practical purposes; and I sometimes think that as many inspiring remnants of Roman civilisation are to be found in North Africa as in Southern Europe.
    The noble Baroness referred to the balance of trade between the four Mashraq countries, which is favourable to this country; so there is no need to be worried about the concessions we are making to them on tariffs. I see that the figures are £106 million sterling in our favour in regard to Egypt—who is our major trading partner; £54 million sterling with Jordan; £4 million sterling with the Lebanon—and there are circumstantial reasons of recent origin for that comparatively low figure—and £56 million sterling in our favour in our trade with Syria.

    1087
    We must not expect that these substantial balances will always be of this order. This country has always looked to an ultimate balance over a number of years; otherwise, there can be no steady and mutally beneficial world trade—an impeccable Liberal sentiment with which I am sure the noble Lord will agree.
    At the moment that is the positon. Therefore, any of the concessions, which the noble Lord. Lord Banks, quite rightly said ought to be made, are safely made. In any case, there are safeguards for any of the members of the contractual community. If they, or some of their industries, find themselves in serious danger, there are provisions for putting the matter right. There is a good deal of talk about protectionism these days. If protectionism is inevitable or necessary, this is the best way to do it: by paradoxically but effectively uniting the principle of freer trade, especially with people less well off than we are, with a judicious provision within that arrangement for a possible adjustment if and when that is necessary.
    On Question, Motions agreed to.
    Lord STRABOLGI: My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
    Moved accordingly, and, on Question, Motion agreed to.
    [Sitting suspended from 7.51 p.m. until 8.15 p.m.]

SCOTLAND BILL
House again in Committee on Clause 19.
[Amendments Nos. 296, 297 and 82 not moved.]
Lord WILBERFORCE Lord WILBERFORCE moved Amendment No. 241:
Page 8, line 15, leave out from ("the") to ("Council") in line 16 and insert ("Constitutional").
The noble and learned Lord said: With this Amendment, as when one enters Harrods' store in Knightsbridge, we enter upon a different world; namely, the world of which body exactly is to
1088
carry out the important and onerous tasks of a judicial review. This particularly significant Amendment, No. 241, is one of a series your Lordships will find scattered through the Marshalled List, of which the most important are No. 247 on page 5 and No. 278 on page 17, which introduces the new Schedule. With the permission of the Committee, I will speak to all of them together, because it would be unintelligible to deal with one alone.
The purpose of them can be stated in one short sentence; namely, that my noble and learned friend Lord Scarman and I propose that there should be substituted in this Bill, as regards a judicial review, pre- and post-enactment for the Judicial Committee of the Privy Council, a new body which we suggest should be set up under this Bill and which we call the Constitutional Council, with the powers and composition stated in the Schedule to which I have referred. This proposal, with others having to do with the composition of the review body, necessarily rests upon certain assumptions which must be hypothetical at the present state of discussion on the Bill. The basic assumption, of course, is that there will be some process of judicial review, whether pre-enactment, post-enactment or. as the Bill presently states, both.
As T endeavoured to say on the Second Reading of the Bill and as my noble and learned friend Lord Scarman so brilliantly succeeded in explaining on Second Reading, this is of the greatest importance because we are setting up an Assembly which is not sovereign, with extensive powers but under the sovereignty of the United Kingdom Parliament. As your Lordships now know only too well, the Bill defines in very great detail what the Assembly has and has not power to do.
The noble and learned Lord, Lord McCluskey, earlier in the evening took us on a conducted tour through the various provisions in this Bill which may become relevant—rather at a galloping pace, I may say, and rather too fast for my slow mind. But it was a very valuable review. He started from Clause 18, which defines the legislative power of the Assembly. Then one goes to Schedule 2, which states what is within the legislative competence of the Assembly and sets out some exceptions of a very important character.

1089
Then one goes to Schedule 10 with its groups of devolved matters and those matters which are excluded from the groups, and the mysterious Part III which I am afraid I still fail to understand. Lastly, you get to Schedule 12 which sets out the devolution issues (to use the technical expression) which may arise and which will be the subject of legal proceedings. I shall not weary your Lordships by going through them again. I am perfectly content to take the benefits of a phrase used last week by my noble and learned friend Lord Diplock when he said that these provisions represented the most complicated constitutional structure of any in his experience—and that is quite enough to make the point.
I suggest that the arguments which come out of that are three. First, they are very complicated and technical and require for their decision an expert body, inevitably of lawyers, and preferably an expert body of a permanent character. Secondly, since they are likely to give rise to friction between Scotland and the rest of the United Kingdom the decision must be in the hands of a body which has the confidence of both the citizens of Scotland and the citizens of the rest of the United Kingdom. Thirdly and most important, the questions which have to be decided are questions of a constitutional character such as in Europe would come before a so-called constitutional court, in Canada, Australia and the United States would come before a body set up to decide constitutional questions, and the system of law by which they are to be judged and decided I should think would be unquestionably constitutional law.
The Bill sets up the Judicial Committee of the Privy Council as the body to decide these questions, both pre-enactment in Clause 19 and post-enactment in Schedule 12. There are proposals which in due course will have to be considered by this Committee to substitute, as regards post-enactment, the House of Lords acting judicially. There are proposals set down by other noble Lords for other bodies to do this task. I believe I speak for my noble and learned friend and myself in saying that neither of these primary choices, the Judicial Committee of the Privy Council nor the House of Lords, is really suitable for this very important task. The Judicial Committee of the Privy
1090
Council was probably, no doubt I should think, introduced into the Bill for two reasons: first, it has the power under existing legislation, that is the Act of 1833, to give advisory opinions on references to it. The second reason is that it was the body chosen to decide questions of legislative validity, both pre-enactment and post-enactment, in the Government of Ireland Act of 1920, Section 51. Just dealing with that, to my knowledge that procedure has been used only once, so it has never been really tested in operation.
If one looks at the matter on its merits one has to admit that the Judicial Committee of the Privy Council is far from ideal as a reviewing body, certainly as regards post-enactment questions. The questions which will come before it will be questions of United Kingdom constitutional law, but the highest body in this country on United Kingdom law is the House of Lords which is not bound by decisions of the Judicial Committee of the Privy Council. The House of Lords is a truly United Kingdom court composed of judges from England, Wales, Scotland and sometimes Northern Ireland. It is the highest authority on Scots law, on English law and on the law of Northern Ireland. The Judicial Committee is none of these things.
This dilemma is very much spotlighted by Amendment No. 202, which the Committee will find on page 22 of the Marshalled List. It reads:
"Status of decisions of the Judicial Committee A decision of the Judicial Committee under paragraphs 9, 17, 22 and 23 of this Schedule shall be binding on all courts in England and Wales, Scotland and Northern Ireland".
To say that a decision of the Judicial Committee is binding on the House of Lords, which for some 700 years has been the highest judicial authority in this Kingdom—which I would say is an inevitable provision under the present scheme—is to produce a very serious distortion of the constitutional position in this country.
Moreover—and I tread here on more delicate ground—the Judicial Committee of the Privy Council is a numerous and amorphous body. If one leaves out such characters as the Lord President of the Council and ex-Lord Presidents of the Council who are ex-officio members of the Judicial Committee, it consists of

1091
about 35 United Kingdom members and, I think, nine overseas members, a total of over 40 members. Surely it is contrary to constitutional propriety to leave the decision on important and probably contentious constitutional matters to five judges selected out of these 40 or more persons—probably differently selected for each case. I am not going to suggest that the court would be "packed" in any way, certainly not by the present incumbent of the Woolsack or by any of his probable successors, but in a contentious case there is bound to be, some day, a contention that a particular board or committee of five has been chosen in such a way as to produce a decision, whether a convenient or an inconvenient one. Such a contention, however ill-founded, is very hard to refute and the mere making of it is liable to destroy confidence.
I received through the post the other day, as I expect several others of your Lordships did, a document emanating from a political party, called The ABC of Devolution. If you look up the letter "J" in this ABC, it says:
"J is for the Judicial Committee of the Privy Council"
and it goes on to say, taking various examples,
"If a decision went against us, we would be saying the same things as were said about the national Industrial Relations Court, even worse about the members of the Judicial Committee of the Privy Council".
It goes on to mention by name one of my noble and learned friends. There is, in fact, a dilemma on this. Either the members are chosen at random, in which case you get a body lacking in consistency; or else you always select the same persons, in which case you come near to our proposal or else are criticised. So that I am strongly in favour of a body of fixed composition to make these decisions.
What about the House of Lords, which clearly enjoys very substantial support as the supreme reviewing body? May I say that if 1 had to choose between the Judicial Committee of the Privy Council and the House of Lords in its appellate capacity, I should very much prefer the House of Lords, which has the advantage of being a United Kingdom court, and the supreme United Kingdom court. It is nearer to a fixed body, though even there a selection has to be made of five
1092
out of nine which gives rise to various permutations, but you are getting nearer to a fixed body.
I take it that the main objection to the House of Lords is that, by definition, it is part of the Parliament at Westminster and therefore unsuited to be an impartial arbiter, as between Westminster and Edinburgh. Of course, we all know here that the Appellate Committee has a life of its own under its own Statute, the Act of 1876, and we all know that it acts judicially and does not regard itself as, in any sense whatever, a tool of the Westminster Parliament. But the appearance remains. It is organically a part of the Westminster Parliament. Moreover, the House of Lords has not at present the power of giving advisory opinions, as the Judicial Committee of the Privy Council has. Of course, it could be given by the Bill, but the Bill and no Amendment that I have seen suggests that it should have that power.
Those who favour the House of Lords for post-enactment review, as one sees by later Amendments, leave under the present structure the Judicial Committee of the Privy Council for pre-enactment review. Even for the United Kingdom, which has lived on anomalies and eccentricities for a great many years, this seems a very strange and illogical set-up to have one body doing the pre-enactment and another doing the post-enactment. It is no answer, when one is treating a constitutional problem seriously, to say, "It will probably be the same five people, just wearing different hats". I do not think that that is a good enough answer. So, so far, if my analysis is correct, neither of the two suggested bodies is ideal, particularly not the Judicial Committee of the Privy Council as proposed by the Bill.
Therefore, what we suggest is a special body created for this job. We have called it, tentatively, a constitutional council, for various reasons; perhaps by infection from the name "Privy Council", perhaps taken from the French—the Conseil Constitutional—which has pre-enactment powers. But knowing that noble Lords in this House have a predilection for discussing names and titles, as was shown when discussing the name to be given to the Assembly—Convention, moot, witenagemot and so on—and knowing that it is a subject for discussion here

1093
we have made provision in our Schedule for Parliament to rename it, if it wishes, the Constitutional Court. That is in paragraph 3 on page 18 of the Marshalled List. Perhaps we could have named it the Constitutional Court as of now, but we thought that that might be unduly ambitious at the present stage.
Your Lordships will see the powers of this body narrowly defined in the Schedule, in paragraph 1 on page 17 of the Marshalled List. They are narrowly and strictly confined and are related to the functions under this Bill. They are to consider matters referred under Clause 19 of the Bill, which is the pre-enactment, and,
"to consider and decide any devolution issue in accordance with Schedule 12",
which is the post-enactment. Its composition in the new Schedule is set out on the following page. But this is just an attempt, sketched out by amateur hands, to suggest what might be acceptable and it has no kind of validity or firmness about it.
If the proposal, in general, were to commend itself to the Committee, then it would be right to hand this straight over to the noble and learned Lord the Lord Chancellor to take it in hand and put it into shape. The main point to which we attach importance is that it is fixed in number to seven members. We took seven as a convenient number, which happens to coincide with that of the High Court of Australia and we suggest that all judges must sit on all cases so that you get a permanent body, and no opportunity for criticism that the composition has been fixed. Then we propose—and this is only a suggestion, which may please some and deter others—that as well as professional judges, such as Lords of Appeal, there should be experts in constitutional law; probably professors or people of that kind. But if that encounters some revulsion or dislike, that is a proposal which can easily be dropped.
To make clear one point which I think has not been quite understood, our suggestion is that the judges of this Council should be seconded to it from existing institutions, rather in the same way as the judges of the Restrictive Practices Court are seconded from their ordinary jobs while retaining their normal responsibilities. The Lords of Appeal, who are
1094
mentioned there, would of course continue to carry out their functions as Lords of Appeal in this House, or in the Judicial Committee of the Privy Council.
The proposals do not, I think, cost anything—so that the noble and learned Lord the Lord Chancellor need not worry about that—any more than the Judicial Committee of the Privy Council costs anything; and we know very well that the noble Lord and his Department are remarkably adept at getting justice without undue expense. Just as the Financial Memorandum to the Bill does not make any provision for extra expense in the Privy Council, either through judges' pay or through staff, similarly there should be no doubt that this structure can easily be accommodated without any organisational or financial complications.
That is all that I need to say about the composition and powers of the Bill. The Committee can see for itself the details which we suggest in the Schedule, which are not essential and no doubt can be improved. But I want to say something else, other than simply placing this structure before the Committee. I want to be absolutely honest, open and explicit about it. These proposals have been put down—and I am sure that I can speak for my noble and learned friend Lord Scarman who, I hope, will be here shortly—because I hope that the setting up of this Council may mark a tiny step, a premier pas, towards constitutional progress in this country.
It really is time that we in this country took our Constitution seriously. There are great movements of thought and opinion in the country at large which believe that we cannot go on with our present state of constitutional anarchy or, if you like, non-constitutional despotism, or even, as this Bill does, with a fuzzy kind of reliance upon convention. The recognition that these are constitutional issues, to he resolved by a constitutional council or a constitutional court with definite lineaments rather than blurred outlines, may, if this is not too optimistic, start a chain of new thinking and new action.
It is easy to say, of course, that this is neither the time nor the place for this suggestion; the other place will not like it; we can get on quite well as we are.

1095
I can hear all of these objections before they are made. Our voice from these Benches is only a small one, but we do believe in our proposals. We hope that the Committee will not reject them just because they are new. If any place is the right one for new thinking on constitutional matters, it is the House of Lords, and if any occasion is right for a modest innovation it must be when we are taking the greatest constitutional step we have taken since 1707. I beg to move.
8.42 p.m.
Lord DIPLOCK: The debates in the Committee of this House during the last two or three days have, I am sorry to say, disclosed what I hoped would always remain a secret: that those of us who are members of both the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords are not always unanimous in our views. I had little thought to hear from my noble and learned friend Lord Wilberforce the first attack in 278 years upon the Act of Settlement. That great constitutional landmark in the history of this country gave security of tenure to the judges of all the superior courts. They were there for life, so long as they behaved themselves.
This new constitutional court is to be appointed by members of the Executive for three years. Not if they behave themselves but if they commend themselves to the Executive, they will be eligible for reappointment. I would venture to suggest that we should consider very carefully before we change what has served this country well for 278 years and hitherto without question.
What is this body to be? It is to consist of five Lords of Appeal. I will not go into that matter. Its members will not be limited to those who normally sit in either the House of Lords or the Privy Council. There are to be added two professors—I take it of constitutional law—in order to make sure that questions of statutory construction are well decided.
My first objection to this proposal is that it strikes at the root of the Act of Settlement. My second objection is that, if we permit pre-enactment consideration of the validity of legislation to go to the Judicial Committee of the Privy Council and, as I shall be suggesting later when
1096
we come to some further Amendments, post-enactment to go to the House of Lords, unless there is to be some packing of those who constitute the members of the Privy Council who sit on pre-enactment references (and, in the presence of my noble and learned friend on the Woolsack, I cannot believe that this would be a possibility), we shall, broadly speaking, get the same people deciding pre-enactment vires as those who will decide post-enactment. The one thing that this Amendment is certain to secure is that they will not be the same people, because our two professors—with their three-year tenure of office, dependent upon the will of the Executive—will be added to those to whom we normally entrust decisions upon matters of statutory construction.
I should not mind—indeed to some extent I would prefer the House of Lords to be the body to whom the pre-enactment references were made. However, I do not object to the Judicial Committee of the Privy Council undertaking that function because, as I have said, I have confidence that it will not be packed for that purpose. There are at least two reasons in support of that view. First, this function was conferred upon the Judicial Committee of the Privy Council in 1920 by the Government of Ireland Act and thereafter operated for 50 years without any difficulty. Secondly, although one could confer upon the House of Lords jurisdiction to give advisory opinions, that jurisdiction already exists in the Judicial Committee of the Privy Council and has existed, if my arithmetic is right, for about 144 years. Therefore, I should not object to pre-enactment references going to the Privy Council rather than to the House of Lords.
When the time comes for some further Amendments, I shall be supporting my noble and learned friend Lord Dilhorne in suggesting that all post-enactment matters should go finally to the House of Lords rather than to the Judicial Committee, but that point I need not deal with now.
May I say a word about other common law constitutions. I do not speak of the civil law ones: there are a variety of constitutional courts in both Italy and France. Nearer to home, in the kind of jurisdictions which are familiar to our concepts—in Canada, Australia and even

1097
in the United States—the constitutional courts which decide whether or not matters are intra vires are courts of general jurisdiction: courts which are the final appellate courts in other matters as well; courts which in those countries exercise the same jurisdiction as the House of Lords in this country. I would not mind—I think there is something to be said for it—provision that, in these matters of pre-enactment references, or indeed references post-enactment, a single decision of the appropriate body, the Judicial Committee of the Privy Council, were alone given. I often wish that in our ordinary jurisdiction in the House of Lords we did not have this plethora of separate opinions and speeches.
I say that because, although this will be a court in effect which is exercising the functions of a constitutional court, where there is a constitutional court, as in the United States of America or in the High Court of Australia or the Supreme Court of Canada, it is often useful to have dissenting opinions because times change and ultimately you find with the development of the Constitution that a dissenting opinion of 20 years ago becomes the majority opinion today. This is necessary and desirable where the Constitution cannot easily be changed because it requires a referendum or some other complicated way of doing it. But it is not necessary in this particular kind of Statute because the Bill, when it becomes an Act, will still be subject to amendment by the Parliament at Westminster and so it is not necessary to have dissenting opinions in order to provide the springboard from which development can take place in the future.
I was going to say that I have a good deal of sympathy, but, to be honest, I have very little regarding what my noble and learned friend Lord Wilberforce indicated was an attempt to fly a constitutional kite, not so much for the purposes of the Scotland Bill but for some future developments of the Constitution which he did not quite disclose; but I could have a guess or two at them when I see that my noble and learned friend Lord Scarman is a supporter of this Amendment. I would suggest to this Committee that, if this is a kite, this is the time to cut the string and let it float away.
8.54 p.m.
Lord WILSON of LANGSIDE: I support this Amendment, and perhaps I should explain to the Committee that when I tabled the Amendment which follows this on the Marshalled List I was unaware of the Amendment which the noble and learned Lord, Lord Wilberforce, has proposed to your Lordships. I think it is an excellent Amendment. I should perhaps explain that, when I tabled my own Amendment, it was not with any serious intention of suggesting that it would be appropriate that a Scottish court should. deal with the problems which it is now proposed under the Amendment should go to the constitutional body, but rather in order to express what here I must call mild surprise, but what outside this House I would call outrage, at the Government's proposal to make the Judicial Committee of the Privy Council the judicial body for these purposes.
The Judicial Committee of the Privy Council is of course an august body on which no one would cast aspersions and for which everyone must have the greatest of respect. It was perhaps the appropriate body to which issues arising in former colonies which have become Dominions might properly be referred, or even in which issues arising in former colonies through which the wind of change had blown and had made free could he referred. But, of course, so far as I am aware Scotland was never a colony; and it struck me as being surprising on the part of the Government, both when the Scotland and Wales Bill was in Parliament and the present Bill, that they should have thought this was an appropriate body. I am only sorry that when I applied my poor mind to this question the only thing I could think of suggesting, because I lacked the imagination and vision of the noble and learned Lord, Lord Wilberforce and the noble and learned Lord, Lord Scarman, was that the Scottish court might take it over in order to raise the issue. I should have thought that whatever else was appropriate, the Judicial Committee of the Privy Council was not historically the appropriate body to resolve issues arising within the Scottish Assembly or between the Scottish Assembly and the Parliament of Westminster. With those considerations in mind, I respectfully support this Amendment.
Lord MORRIS of BORTH-Y-GEST: Rarely have I enjoyed a speech more than the speech of my noble and learned friend Lord Wilberforce. Rarely have I appreciated advocacy as brilliant as that of my noble and learned friend Lord Wilberforce in building up a case to suggest that the Judicial Committee of the Privy Council would be inadequate for the tasks that may come before it. My noble and learned friend presides with such distinction over that body. Is there any task that might go to that body in reference to vires within this Bill to which my noble and learned friend and all my noble and learned friends around me would not be more than adequate to give the right answer? It is not as difficult as all that. There is a problem. It is in the Bill. Can you find within the Act the power to legislate in those terms? Day in and day out my noble and learned friends are delving into Schedules, interpreting sections, coping with words, saying what they mean, and they take it all in their stride. This would be a matter of great simplicity for my noble and learned friends.
But what really also intrigued me was that part of the speech when my noble and learned friend said, "Ah, now I am going to be very frank. This is in possible preparation for something else." What? He did not quite tell us that. What is it—a federal system? Are we to legislate and say, "Well, there might in the future be a federal system and, in case there is, we will legislate in advance to have a court to deal with federal matters". Many are of the opinion that geographically and historically our development has been so different from the development of the United States of America, Canada and Australia. May we have so managed our affairs that a federal system, as is often understood, is now too late?
What else lay behind this intriguing part of my noble and learned friend's speech when he was so frank as to say that this really is in preparation for something else. Is it some kind of Bill of Rights? Is it something to circumscribe the power of Parliament? There are some of us who believe that the time is not ripe for any limitation of the powers of Parliament. There are some of us who think that you can avoid present troubles if you have a system whereby those who are legislating truly represent those who wish some
1100
particular legislation to be passed. But is this constitutional court of the United Kingdom in preparation for something of that kind—a Bill of Rights, limitation of the power of Parliament? Had not we better discuss these matters—not today, but on some occasion when the matter becomes relevant—before we discuss how to cope with them if we ever come to that point? Might my noble and learned friend be saying "Ah, well, we will set up this court, but then later on, if it is found that there is very little work for it to do under this Scotland Act, we will say the poor little court must have something to do; let us have a Bill of Rights; let us have new constitutional problems". I end as I began, by thanking my noble and learned friend for his perfectly brilliant speech and for giving us such a heady line of thought.
9.3 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: Your Lordships may have divined some vague difference of opinion which has broken out unexpectedly on the Cross-Benches. My task is, of course, to pour oil on the troubled water. I must, first of all, let your Lordships into a secret. Forgetting for the moment the constitutional Council which is proposed in my noble friend's Amendment, what is the difference between the Judicial Committee of the House of Lords and the Judicial Committee of the Privy Council? This is not generally known. It is a large Daimler car. The Judicial Committee of the House of Lords normally consists—if the Lord Chancellor is not himself present, which one always hopes he will be—of a committee of five, with Lord Diplock, Lord Wilberforce or perhaps Lord Dilhorne in the Chair, and Lord Fraser of Tullybelton and at least one other Member of the House of Lords, let us say Lord Russell of Killowen. Occasionally they scrape the bottom of the barrel and then they may ask Lord Hailsham of Saint Marylebone or Lord Morris of Borth-y-Gest. That is the Judicial Committee of the House of Lords; a very fine body of men. However, what is the Judicial Committee of the Privy Council? You might see Lord Wilberforce or Lord Diplock in the Chair, or possible even Lord Dilhorne, and then there is, of course, Lord Fraser of Tullybelton and then again another Member of

1101
the House of Lords, Lord Russell of Killowen or possibly even, to go down again scraping the bottom of the barrel, Lord Hailsham of Saint Marylebone or Lord Morris of Borth-y-Gest. What is the difference between these two vastly different judicial bodies? A large Daimler car, because one sits upstairs and one sits in Downing Street; that is the difference.
What will be the composition of this splendid new body of my noble and learned friend Lord Wilberforce, whom I join with others in complimenting on his delightful and persuasive speech. Well, I suppose there might be in the Chair Lord Diplock, or possibly Lord Dilhorne, or there might even be Lord Wilberforce, and then there is Lord Fraser of Tullybelton, Lord Russell of Killowen and possibly even Lord Hailsham of Saint Marylebone. There will be two extra; they will be professors. I do not know which professors; it makes a great deal of difference which. But apart from that there seems to be a certain sameness. The trouble is, of course, that I do not know what they will do without their Daimler car, or where they will sit.
This is a fascinating suggestion, and I am tempted to pursue the matter. The noble and learned Lord, Lord Wilberforce, talked about the premier pas towards a reconstitution of our Constitution a subject very dear to my heart. After all, C'est le premier pas qui compte, as they said of the man who was seen to walk without his head or with his head underneath his arm. The first thing I want to say is that one must look at this thing rather more in the abstract than we have done.
The differences between what my noble friend Lord Wilberforce suggests and what is existing in the Bill are not quite so large as might at first sight appear. He wants a fixed panel of seven. That, if you have the two professors, will almost be de rigour; otherwise what would you do without Lord Fraser of Tullybelton and the rest of them. I think I know who would be turned out first. At any rate you have a fixed court. This can be done without legislation. The Lord Chancellor could make it a convention or make it a rule of court that there should always he a panel of seven and it should consist normally of a fixed number. I would not recommend leaving out the sick man, as my noble and learned friend Lord Wilber-
1102
force suggests, because then you would get three and three and they might be evenly divided.
Indeed, if today's debate is any shadow of the future casting itself in advance, it would be only too probable, if you had three and three, that they would be equally divided. It is possible in litigation on appeal, but that is no great misfortune because in such a case the judgment appealed from stands. If there is a mere reference to an advisory opinion—and there is only one opinion to be delivered as I see from the latter part of the Amendment of my noble friend—it is difficult to know exactly what they would say. Therefore, we must have an uneven number, whatever else we do.
Is this a very unsuitable body, as the noble and learned Lord, Lord Wilson of Langside, said? Is it an outrage upon the body of Scotland that the Judicial Committee should be the one to decide this matter? I do not think there is much in that. Ulster survived. It had its other troubles but under the Government of Ireland Act 1920 the Privy Council had this jurisdiction. It survived during 50 years of troubles without anyone, I think, once adverting to the outrage on the body of Ulster. It is the only thing which has not been an Irish grievance in my political life. Therefore, I do not think that one can complain very much that this is unconstitutional quoad Scotland. I think that it might be an inconvenience.
Whether we choose the Judicial Committee or the House of Lords, there are normally only two Scottish Law Lords and often they are very badly needed because Scottish appeals are coming on and off all the time. Therefore, I think that it would probably be desirable, even if the Judicial Committee is retained, that Her Majesty should be advised to appoint Scottish Privy Councillors to the Judicial Committee. After all, every member of the Court of Appeal is a member of the Privy Council and therefore of the Judicial Committee, although they seldom sit until they have retired.
In the reign of good Queen Victoria they were offered the alternative of being made members of the Privy Council or having a rise in salary. For some reason which has always been obscure to me, they opted for the Privy Counsellorship. That

1103
is a curious piece of judicial history, but it is true.
The one point upon which the noble and learned Lord, Lord Wilberforce, and the noble and learned Lord, Lord Diplock, agreed was that there should be no dissenting voice allowed. I think that that is rather hard, especially in constitutional matters. I am not alone in that view. If it were only my own voice that were spoken on this side, I should perhaps suppress my opinion, but I know that it was the view of the late Lord Reid who was a judge for whom I personally had the profoundest adoration and respect. He was one of the greatest judges of the twentieth century in this country. He always said how valuable it was in the House of Lords, unlike the Privy Council, that every Lord made his opinion separately, not because they would all say the same thing in the same tone of voice, but in order to prevent their words being taken down and treated like the words of Almighty God spoken from Sinai and engraved by Moses on two tablets of stone. I believe that the late Lord Reid was right about that.
Personally, I look back on the great dissenting judgments with a certain amount of respect and affection. I think now of the judgment of Lord Atkins in Liversidge v. Anderson which is now universally applauded. I shall not go any further into questions like a conspiracy to corrupt public morals, for fear of embarrassing the Cross Benches. However, there have been a number of very notable dissenting judgments upon this subject which have won widespread applause at least among the professors.
I must say, as a footnote, that it is an embarrassment if one sits on the Judicial Committee that one is driven either to make a dissenting voice which is only a very newly acquired right or else to submit to the embarrassment of simply writing one's name in the book as dissenting and no one ever knows that one does not agree with the judgment delivered. One has conversations about the judgment but one is not allowed to reveal what has taken place in Council and the fact that one may have differed very strongly from the majority is a fact which, unless one makes use of one's special new dispensation, one is never allowed to say. I think that in these constitutional matters it would, in
1104
fact, be highly embarrassing if no dissenting voice could be uttered and I should prefer the general rule.
Having said all that, 1 think that we have had a very interesting debate. There are important questions to be decided and thought about. I am eager to hear the reply of the noble and learned Lord the Lord Chancellor and, indeed, if the noble and learned Lord, Lord Scarman, were here, to hear his voice in support of the Amendments. I do not believe that the world will come to an end whichever view is taken, but we ought to get this right, if we can and I should like to hear the Lord Chancellor. I imagine that the noble and learned Lord, Lord Wilberforce, would like to take stock of the situation in the light of this debate and that therefore we shall not proceed to a Division which would he a very exciting one if it took place. I can only declare from the Conservative Benches that there would be a free vote.
9.14 p.m.
Lord WILSON of LANGSIDE: Although I do not wish to delay the reply of the noble and learned Lord the Lord Chancellor, which I am sure your Lordships are all anxious to hear, I should like to pursue the question of the suitability of the Judicial Committee of the Privy Council as the body properly to arbitrate in relations between the Scottish Assembly and Parliament at Westminster. The noble and learned Lord, Lord Hail-sham of Saint Marylebone, seemed to think I had suggested that it would be constitutionally inappropriate. Of course. I have no grounds for saying that. I am saying that it would be psychologically and historically inappropriate.
The noble and learned Lord, Lord Hailsham, said that Ireland had contrived to live with the Judicial Committee. That can be very misleading. We can learn a lot constitutionally from the experience of Ireland and Northern Ireland, but it can be very misleading politically in a great variety of ways to compare the situation in Scotland with the political situation in Ireland. My point is that Northern Ireland is a Province. We were never a colony of England; we were an independent and proud people, as all people are proud—no more, no less. We entered into a partnership with the

1105
English. A fundamental condition of that partnership was that we should have our own independent legal system. Of course, the Judicial Committee of the Privy Council fitted in perfectly well with the Northern Irish system, where, I understand, the English law rules. In Scotland, Scots law rules.
My submission was that the Judicial Committee of the Privy Council, which is an august and impressive body, has no place in arbitrating between the Scottish Assembly and Parliament at Westminster. That was why I felt that the suggestion of the noble and learned Lord, Lord Wilberforce, that there should be a constitutional Council was perhaps altogether appropriate. Otherwise, I should have been inclined to say, had I committed myself to my own Amendment, that the Scottish people would on the whole prefer to have the arbitration of the Lord President of the Court of Session and the Lord Justice Clerk rather than that of the Judicial Committee of the Privy Council, august body though it be.
Lord HAILSHAM of SAINT MARYLEBONE: Perhaps the noble and learned Lord, Lord Wilson of Langside, will forgive me for saying that, in fact, the Inner House of the Court of Session is subject to that wicked body, the Judicial Committee of the House of Lords, which is composed, among others, of Lord Wilberforce. Although the membership has been slightly different over the centuries, it has, in fact, been culturally the same.
Lord WILSON of LANGSIDE: The noble and learned Lord, Lord Hailsham, would of course he aware that in the criminal law we are final.
Baroness ELLES: Before the noble and learned Lord on the Woolsack replies to this Amendment and as my noble and learned friend Lord Hailsham of Saint Marylebone has given us the right of a free vote from these Benches, perhaps a free voice may say a few words in support of the Amendment of, if I may so call him, my noble and learned friend Lord Wilberforce.
With the greatest respect, many arguments have been advanced by noble and learned Lords in favour of enforcing the necessity for such a constitutional court.
1106
My noble and learned friend Lord Hailsham has indeed outlined the fact that it is precisely the same people who fulfil both functions, acting both on the Judicial Committee of the House of Lords and on the Judicial Committee of the Privy Council, divided only by a Daimler car. I am not at all sure that we would not rather see a greater division than a Daimler car, with different people appointed to deal with this extremely difficult matter of the devolution issues of a Scottish Assembly.
The noble and learned Lord, Lord Diplock, considered that this Amendment was an outrage to the Act of Settlement. Does he not also consider, together with many other noble Lords in this Committee, that this particular Bill is an outrage to the Act of Union? Does he not think, therefore, that drastic measures need to he taken to deal with a drastic situation? Will he not agree that new ideas are needed in our constitutional provisions in this country? When we were debating the extremely interesting report of Sir David Renton on secondary legislation, I remember very well that there was considerable concern as to how secondary legislation would be considered in relation to the main enabling Statutes. I also remember that the questions of a conseil d'etat, or some kind of constitutional court were considered. I am not at all sure that the noble and learned Lord, Lord Wilberforce, has not also found the answer to that problem in his Amendment.
The noble and learned Lord, Lord Morris of Borth-y-Gest, has mentioned the question of the limitation of the powers of Parliament. Many would think that it would be a very good thing indeed in the present circumstances that we should have a limitation on certain Acts of Parliament. Certainly there should be limitations on the abuses of the State, and the constitutional court might again be a way of dealing with that particular problem, with which many democratic States are now faced.
I do not pretend to go on arguing with the many suggestions and comments of distinguished noble and learned Lords who have commented on my noble and learned friends' Amendment, but they should give much more serious consideration to this Amendment than they have done. I, for my part, would give my full support to this Amendment.
Lord DIPLOCK: I should like to explain to the noble Baroness that I have not expressed my views in general on this Bill because I thought that if I did I might be disclosing that I had some political views about it. I have restricted myself to the purely technical matters of judicial review.
9.21 p.m.
The LORD CHANCELLOR: This has been a fascinating debate, illustrating once more the many-sidedness of truth. It began with a remarkable statement by the noble and learned Lord, Lord Wilberforce, that here in the background of this Amendment is to be the solution to the state of constitutional anarchy from which we are presently suffering, and constitutional despotism. It brought to mind the newspaper correspondent who cabled to his editor, "Impossible to exaggerate gravity of situation here, but I will do my best".
There has been lurking in the background, as the noble and learned Lord, Lord Morris of Borth-y-Gent, so attractively pointed out, this undefined, vast solution that is to creep in through the back door of the Scotland Bill; the solution to the limitation of the powers of Parliament. The whole vista is to he opened before us. Now I see that the noble and learned Lord, Lord Scarman, has come in. It was suspected that perhaps the voice of Scarman was behind what is now proposed to us.
This is indeed a remarkable situation in which we find ourselves. Here we are dealing with the question as to whether there is in existence in this country now a body sufficiently competent and respected, enjoying the confidence of the people of these islands, to deal with the problem of interpretation of Scottish Assembly Bills or Scottish Acts of the Assembly. I should have thought we have one that has survived certainly more than a century; the Judicial Committee of the Privy Council, and the House of Lords sitting in the Appellate Committee. The Judicial Committee of the Privy Council has been dealing with problems of advising on constitutional questions for a long time. While it is true that it is not in its ordinary sense a United Kingdom court in that its historical and traditional role has indeed been to advise Her Majesty on problems
1108
arising from the colonies and the Commonwealth, it has developed in standing and experience by dealing precisely with constitutional questions, and with the wide range of matters under special reference. Indeed the noble and learned Lord, Lord Wilberforce, reminded us of this in the debate on Second Reading.
As indeed the noble and learned Lord, Lord Hailsham, indicated, it follows legislative precedence—more recently from Northern Ireland, also from the Dominions and the Commonwealth—in providing for the reference of such questions to the Judicial Committee of the Privy Council. In carrying out the task which is proposed for it in the Bill, it will be carrying out precisely its traditional role within our Constitution. As the noble and learned Lord, Lord Scarman, said on Second Reading, it will be wholly appropriate in providing the voice of the Crown in Council on legislative proposals before a Bill has become law.
The noble and learned Lord, Lord Fraser of Tullybelton, said that it was in line with both principle and precedent that the pre-enactment review, if there is to be one, should be the Judicial Committee of the Privy Council. Here it is, ready made by us, not imported from anywhere else. Here is a British native product that has survived over the decades and is universally respected throughout the world, and now we want to put in its place a constitutional council of seven with only one agreed judgment and, of course, two professors.
It is a remarkable vote of no confidence in this great institution that we should now seek to depart from it on to some sea that has no shore. There is no indication of what this new body, to which it is the precursor, is to be. The noble and learned Lord, Lord Wilberforce, said frankly that this was only the curtain raiser; it is the prologue to this remarkable play that is to be played at some uncertain date and in an uncertain future. It has provided a most attractive and entertaining debate, but nobody is seriously thinking that it could be introduced in this way into this Bill on Scottish devolution, important as it is.
There have been comments about the composition of the proposed council and some criticism of the composition and

1109
unsuitability of the Judicial Committee itself. In view of the anxieties that have been expressed, I would say that perhaps that expertise in Scottish law and Scottish history will not be available to it; that if there was a reference under Clause 19, or indeed in the Appeal Committee or Judicial Committee, on post-enactment challenge, there would certainly be Scottish judges in the Committee. I can certainly give that assurance so long as I am holding this office. There is no difficulty in achieving that; there are ten distinguished Scottish lawyers available, so there will be no fear, therefore, that a powerful Scottish element will not be available who will come armed with long experience on the judicial bench and not restricted by the terrors which were so vividly described by the noble and learned Lord, Lord Diplock, of a three-year tenure of office, with all the threats to the independence of the Judiciary that fixed terms of that kind so notoriously create and provide.
My submission, therefore, is that we should not put a fifth wheel on this splendid carriage that has taken our judicial processes down the decades but that we should enjoy the use of it. It may not be a Daimler or a Rolls-Royce, but it is a well-tried vehicle for dealing with the precise problems that it will be called on under the Bill to perform.
I will not be tempted to pursue some of the implications which Lord Wilberforce frankly confessed to be behind the Bill—the impact on administrative law and what purposes will be sought for it—but he is perfectly right to say that there will probably not be many references on vires questions to the Judicial Committee of the Privy Council. I do not think many cases will arise after Royal Assent, and it is right to say that there is nothing more dangerous than a body which is given statutory existence and has nothing to do. All sorts of devils creep into that empty space and therefore, while we owe a debt of gratitude to Lord Wilberforce for this fascinating debate, I suspect that the view of noble Lords on the whole will be that it is satisfactory at any rate that the matter is not going to be tested in a vote.
9.31 p.m.
Lord SCA RMAN: May I first apologise to the Committee for not being present
1110
during what, it is plain to me from having heard the noble and learned Lord the Lord Chancellor, must have been a fascinating debate. I should like to tell you why I was not present. I had a long-standing engagement to address this evening, as Master Reader, the Bar students of the Middle Temple, and my subject was constitutional reform—the need for a written Constitution, a Bill of Rights, and a constitutional court. I venture, very modestly, to suggest to your Lordships, with great respect which I, as a new Member, have for your Lordships' House, and for this Committee, that perhaps, if one thinks for the longterm future of this country, that audience could be just as influential as your Lordships' House. At any rate, that has to be my defence for having absented myself from a debate upon an Amendment which I had the honour to support.
It gives me a present advantage over all of you. My enthusiasm for the Amendment is utterly undimmed by the force of power of the arguments that have no doubt been marshalled against it. Let me say, in a few words, why I support this Amendment, or this series of Amendments. First, as I said in my Second Reading speech, I welcome the provisions in the Bill for judicial review. They are not unsound provisions, and they are one way of implementing a principle which I believe essential in the coming years for the safeguarding of our liberties.
But I support the Amendment of the noble and learned Lord, Lord Wilberforce, simply because I think that it provides a better way of doing the job than the existing provisions, though those provisions are sound, and I should rather have them than none at all. I ask myself rhetorically —and I will seek to answer it—why do I prefer, and why do I suggest that your Lordships may prefer, the constitutional council-cum-constitutional court, to judicial review by the Privy Council pre-enactment and by the House of Lords or Privy Council post-enactment?
I start with a broad proposition. It is wrong, I suggest to the Committee, to think of the Scotland Bill as a kind of magnified exercise in local government. This is a constitutional Bill of the highest importance. I cannot think of a constitutional step more important than what is embedded in the Bill. Therefore, we are

1111
not considering how we should handle the review of by-laws passed by a local authority. We are considering whether there should be—and the Bill accepts the principle—a judicial review of law passed by a Legislature which has power to make laws.
It seems to me, therefore, that if one is to put flesh and blood on to judicial review, and the principle is accepted, one should do it in a way which measures up to the constitutional importance of the Bill. It is because we are dealing with a new Legislature and a new source of law, and because we are introducing at that level in our constitutional set-up the principle of judical review, that I ask myself, and I ask your Lordships to ask yourselves, whether it is sufficient to pour this perhaps intoxicating new wine into those old historical bottles, the Privy Council and the House of Lords.
Now, there are objections—they are not insuperable objections, I think, but there are objections—to using the Privy Council and the House of Lords for these very important functions. First of all, let me take the Privy Council. There is an historical objection to making use of the Privy Council, even though it is in many ways a thoroughly suitable body. The Privy Council is the modern emanation of the development of the Curia Regis, which looked after the off-shore possessions of the Norman kings and, later, the English kings. It began with a Norman jurisdiction exercised over the Island of Guernsey. Then, as the centuries rolled on, it was extended to the plantations, the colonies and the dominions. Now, although I am an Englishman, I happen not to put Scotland into the category of off-shore possessions of the Crown; neither do I think of Scotland as a plantation, a colony or a dominion. Scotland is a part—an integral part—of the United Kingdom, just as are Northern Ireland, Wales and England. Scotland is entitled, as are the other areas of the United Kingdom, to have its legal disputes —and there are legal disputes arising from judicial review—decided, not by the Crown in Council, which historically looked after our off-shore possessions, but by the courts of the land. Therefore, there is an historical reason why the Privy Council, geared as it is to overseas and colonial problems, and experienced though it
1112
undoubtedly is in constitutional matters, particularly in the constitution of Canada, is not necessarily the appropriate body when considering a United Kingdom problem.
When one turns to the House of Lords, the argument is partly historical and partly, as regards public opinion, emotive. Let me explain what I mean. The argument against entrusting post-enactment judicial review to the House of Lords is that we really would be asking the Scots to do something which they are proud never to have done. No appeal lay from the High Court of Justiciary to the Scottish Parliament; and, therefore, after the Union in 1707, no appeal lay in criminal matters from the Court of Justiciary to the Crown in Parliament, which then was in West minster. Again, this is an historical argument but it is a good reason why many Scots—and I respect them for it—do not wish to see the House of Lords entrusted with this post-enactment judicial review across the board. That is the historical reason.
The emotive reason is this. We are talking—and let us not forget it—about judicial review of legislation. Of course, all us experienced and, some of us, learned people know perfectly well that there is a tremendous difference between the House of Lords sitting judicially and the House of Lords in its legislative role, but many will misunderstand it if legislation which has been passed by an Assembly which the United Kingdom Parliament has authorised to legislate is subject to review in the one Chamber which, whatever its qualities, has no elected element at all.
Again, we all know that the judicial element of the House of Lords is so very different from the House of Lords in its legislative capacity; but it just points out that the House of Lords, though it would do the job magnificently is just, so to speak, off the bulls-eye. It would he all right, but it is just off the bulls-eye; just as the Privy Council would do the job all right, but it is just off the bulls-eye. We are dealing with a new constitutional picture, with a new Legislature and with new legislation. Why not have the courage to say that this calls for a new constitutional bottle, a new constitutional judicial body? We shall begin be calling it a Council. That is the British way of concealing the truth behind euphemistic

1113
terms like, for instance, the term "devolution". That is one very nice way of doing it. But sooner or later we are coming to a court as, perhaps sooner rather than later, we are coming to a federation.
9.42 p.m.
The Earl of PERTH: I rise with great hesitation when I know how many noble and learned Lords have spoken with eloquence and skill on this matter. But there is one point which occurred to me when I was listening to the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Scarman, about the Judicial Committee of the Privy Council. We have been told that, over the last 100 years, it has been concerned with questions of the colonies or of the Commonwealth—as the noble and learned Lord, Lord Scarman, put it, the overseas possessions of the Kings and Queens of this country.
If I were a member of the Scottish National Party I might take comfort in the thought that the Judicial Committee will be charged with the task which is now proposed. My reason for saying that is that, in almost every case that it has had to judge, the country concerned has ultimately become independent. Would it not be better in those circumstances to find a new name, a new motor car and a new place?
Lord WILBERFORCE: I will not detain the Committee for very long, but I should like to make one or two points on this debate. It has been a debate, very strong in wit, very strong in compliments—some of them slightly lefthanded—but not, if I may respectfully say so, very strong in argument. The arguments produced are either fallacious or not, in my respectful opinion, convincing.
Let us start with my noble and learned friend Lord Diplock. He waved in our faces the Act of Settlement, that great Constitutional pillar. I am not quite sure what it has to do with Scotland. But it does not meet my point in the slightest degree. If one takes the trouble to read my Schedule, it is perfectly clear the judges there—and I leave out the professors for the moment—are Lords of Appeal who are appointed under the Act of Settlement,
1114
and it does not make the slightest difference to their constitutional position that you say they are seconded for three years, or for any other period, to a particular court. This is done every day with judges. They are seconded to different courts for different purposes. Nobody has ever suggested that that is contrary to the Act of Settlement. Let us forget about that one. His second argument was: "We have the Government of Ireland Act. That has operated for 50 years without difficulty." One case, that is all. Is that operating for 50 years without difficulty? If I may say so, that is not a very solid argument.
Then he passed to Canada, Australia and the United States of America, which I thought I covered quite adequately in my opening remarks. Their case supports my argument rather than his because in each of those cases they are constitutional courts set up under their respective constitutions, the Constitution of the United States, the Constitution of Australia and the British North America Act which founded the Dominion of Canada. In every case they have fixed numbers of judges to decide these questions. That is exactly what I am trying to do with the body which we have suggested. I do not think that is a very solid argument.
Then he said: "This is a kite. It is not so much for the Scotland Bill as for some sinister purposes". That is of course a complete misreading of our Schedule which defines with the utmost particularity and narrowness the functions which this court is to have. There is nothing sinister about it. Its functions are (a) and (b): (a) to consider and decide matters under Section 19; (b) to consider and decide devolution issues under Schedule 12. How can it be said that the proposal is not so much for the Scotland Bill as for something else? It is entirely for the Scotland Bill. Just because I hinted at various future developments which might or might not be desirable, it hardly makes the point that this is not relevant to the Scotland Bill. It is tailored exactly to the Scotland Bill: it does not go an inch beyond it.
My noble and learned friend Lord Morris of Borth-y-Gest, who paid a number of charming compliments to me of a somewhat indirect kind, put up two complete Aunt Sallies, if I might say so. He said, "Why is it suggested that the

1115
Judicial Committee of the Privy Council is capable of deciding United Kingdom law?" Of course it can, it can decide anything. They are very eminent men. They can decide any question of the United Kingdom or any other law. With great respect, that is not the point. In the first place, it never does decide questions of United Kingdom law, except when dealing with dentists and redundant churches, and that is hardly a good parallel.
The whole point which I was concerned to make, and which nobody has answered, is this. It is quite inappropriate to set up the Judicial Committee of the Privy Council as the supreme authority on United Kingdom law when in the first place there is the House of Lords which occupies that position and, in the second place, there is now a whole new range of problems which have never been considered by the Judicial Committee at all. The second Aunt Sally which my noble and learned friend put up was that he was terrified that this might foreshadow some control of Parliament. "What a dreadful thing" he said. It sends shivers down everyone's spines. I am very glad to see that it did not send any shiver down noble Lords' spines. I know perfectly well that a great many people here will be only too glad to see some control of Parliament. They might perhaps not be very willing to say so in public debate. That is a bogey which I do not think need frighten anybody.
I am sorry if the noble and learned Lord, Lord Hailsham of Saint Marylebone, spent so much time on the Daimler, which now I am afraid has been degraded to a Rover second class, but he made a lot of fun about the noble and learned Lords, Lord Wilberforce, and Lord Dip-lock, the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Fraser of Tullybelton, and so on. He did that beautifully, of course. If I may respectfully say so, it does not do justice to this particular theme. It may well be—and I said this in opening—that the same people or substantially the same people do the job, whether it is in one place or the other. That is not doing justice to the constitutional argument. One must have a proper organ with proper powers and proper functions defined if one is to do justice to the task which falls on the Judiciary under this Bill.
1116
The noble and learned Lord said two things of a concrete character. The first I welcome, and the second I do not. First, he said that it would be a good thing if the Lord Chancellor, in his discretion, were to say: "Let seven members sit on every occasion". That I would welcome. If that move could be made, it would be an improvement on the present set-up. The second point, which I was not so enthusiastic about, was that the noble and learned Lord said: "You can always appoint more Scottish Members". That is exactly what I object to.
There may be moves to appoint more Scottish members, more English members and more Northern Irish members in order to obtain some ideal balance. That is exactly what you should not do with constitutional courts: you should not play about with their composition. That is why I venture to suggest that there should be a fixed composition of three Englishmen, two Scotsmen and two characters who may be—
Lord HAILSHAM of SAINT MARYLEBONE: If I may say so, I was not suggesting that they should be floating members; I was trying to get over the difficulty that, with only two Scottish Law Lords available for the whole of the work of the Judicial Committee of the House of Lords and of the new body, if there is one, it might be necessary to have two in order to make two available.
Lord WILBERFORCE: There seems to be some difference of opinion between the two Front Benches. The noble and learned Lord says only two; the noble and learned Lord the Lord Chancellor said, rather to my surprise, that there were 10 available. I do not quite know where he gets the 10 from, but there may be more than two. All I was wishing to oppose was the idea that it might be desirable at some stage for some Minister—for that is what it means—to appoint more Scottish members in order to achieve some sort of balance. That idea is undesirable.
Then the noble and learned Lord, the Lord Chancellor, said that we were embarking
"on an undefined sea with no shore".
That is exactly what the Amendment does not do because, as I have already tried to explain, the functions of this body

1117
are defined with the utmost particularity. They cannot be extended to control Parliament, to introduce a Bill of Rights or any of those other terrible things that people seem so afraid of: they cannot be extended at all without another Act of Parliament. Therefore, I do not quite see how it is "a sea with no shore". On the contrary, my Amendment would give a very circumscribed jurisdiction—much more circumscribed than exists under the present Bill.
If I may revert to my Harrods metaphor, the trouble with the present stage is that we really do not know now what the shopping list is going to be. This is the first Amendment that has come on and we are going to be faced with discussion as to whether we shall have the Judicial Committee throughout, the Judicial Committee for pre-enactment and the House of Lords for post-enactment, or the Inner House, or variations on any of them. I do not believe the Committee are willing or able to make a final choice on this until we see what the field of selection is likely to be.
So, with the approval of the Committee, which I hope they will agree that this is a proper course, I should like to maintain my proposition in cold storage—I may be willing to drop the professors if people do not like them—and bring it forward at a later stage of the Bill when one sees which alternative best commends itself to the Committee as a whole. It may he that, when the Committee have finally settled on their choice, there will not be so much difference between what they choose and what my noble and learned friend and I have proposed. Then they will be able to make a choice between a narrow range of alternatives. With permission, I should like to withdraw the Amendment at this stage, but I would hope
1118
to bring it forward at a later stage when we see how the Bill progresses.
Amendment, by leave, withdrawn.
9.53 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE had given Notice of his intention to move Amendment No. 242.
Page 8, line 15, leave out ("Judicial Committee of the Privy Council") and insert ("Inner House of the Court of Session").
The noble and learned Lord said: Perhaps it might be appropriate if we reminded ourselves of what lies behind all this discussion and all the hilarity and the wit of these debates. It is, of course, Scottish nationalism and, of course, Scottish nationalism is fuelled by a great variety of things, and not least by the ineptitude, from time to time, of British government. I think that, having regard to the history of the Judicial Committee, which was so graphically presented to your Lordships by the noble and learned Lord, Lord Scarman, your Lordships will in due course be ready to give very serious consideration to the proposals in the Amendment standing in his name and in that of the noble and learned Lord, Lord Wilberforce.
In view of what was said by the latter noble and learned Lord, I shall not move this Amendment. We should remember that what lies behind all this is Scottish nationalism, and that what fuels the fire of Scottish nationalism is all kinds of things great and small. Of course, I am suggesting that the kind of thing which adds just a little bit more fuel to the fire is appointing to adjudicate on issues between the Scottish Assembly and the Parliament of Westminster a body with the kind of history of the Judicial Committee of the Privy Council, a history so graphically painted by the noble and learned Lord, Lord Scarman.
9.57 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 83:
Page 8, line 17, leave out ("and") and insert—("or

(b) if he is of the opinion that the Bill is not compatible with Community obligations of the United Kingdom, he shall refer the question whether it is so compatible to the Judicial Committee of the Privy Council for decision, and for the purposes of reaching a decision thereon or under sections 36(7) or 37(5A) (but for no other purpose of this Act) the Judicial Committee shall be a court and the process of reaching a decision shall be deemed to constitute legal proceedings within the meaning of section 3 of the European Communities Act 1972; or

(c)")

The noble Viscount said: I am not sure what the right metaphor here is. Perhaps 1 should invite to enter with me the Galerie Lafayette as we move across the Channel. I do not suppose that I can initiate quite so enchanting a debate on this Amendment as that which we have just had. Nevertheless, might I suggest to the Committee that this is a matter of some importance. Because they are consequential, I think we could discuss with it Amendments Nos. 86 and 92. The problem is what to do about incompatibility between Assembly legislation and the obligations which fall upon us from the European Community. The Bill speaks of obligations, and I therefore envisage that the Government are talking in terms of decided or concluded law or legislation or Directives or whatever they may be. We are not talking in terms of incompatibility as between an Assembly Act and something which is still in the formative shape at Brussels. We are talking about incompatibility with defined European law.
The solution in the Bill at the moment is to lump together the obligations that we have under the treaties with all other international obligations. These are to be dealt with by the Executive and not by the courts—whatever those courts may be as a result of the outcome of the last debate. Of course, the straight incompatibility between the Scottish Assembly legislation and the terms of this Bill is to be dealt with judicially. When I was considering this I asked myself why it should be so. There are probably two reasons: first, it is plainly justice in that
1120
conflict between what the Scottish; Assembly has done and the powers that they have been given within which they may act is a matter which the courts can deal with. It would also seem to me possible that the reason for this is that the Scottish Assembly will have been passing, will have passed or be proposing to pass legislation—because this is a pre-enactment review which will have a direct effect upon the individual and a direct effect which may, on this hypothesis, be one which they are not entitled to impose. For those reasons therefore it should be a court rather than an executive body which should tell them that they have no power to do any such thing.
If those are among the right reasons for making this choice under subsection (1)(a), then it seems to me that branding the Community obligations as a single entity with all other international obligations under paragraph (b) must be misguided. One thing is absolutely plain: that is, so far as I understand it, that European obligations arc not in the least the same animal under our domestic legislation and in our domestic courts as are our international obligations.
I have sought in this series of Amendments to separate them out. That is the effect of the three Amendments to which I have just referred. We shall deal with matters under paragraph (a), as they have already been discussed by the Committee. Then we separate out the European obligations, and incompatibilities between Scottish Assembly legislation and them, into a new subsection. Then we leave the other international obligations as they are in the Bill at the moment.
As to the latter, I can see the force of this, because of course other international obligations and treaties do not have the force of law in this country, unless they are specifically legislated into our domestic Statute Book. One has only to look at the various treaty enactments that we have seen in this House over the last years, whether it be IATA or something else, to see that they have to be put into our Statute Book before they have direct force in this country.
But that is not the case with European obligations. They have direct applicability

1121
in the domestic law of this country; not only that, they have overriding direct applicability. If we pass a Bill in this Parliament which is inconsistent with the European obligations, then, as my noble friend Lord Mansfield said earlier on today —and I wish that he had not stolen my thunder, because it is my case—the European Court has just ruled that the domestic tribunals shall hold inconsistent domestic legislation to be inapplicable and it shall not be enforced. Therefore, there is an inherent overriding power in the emanations from the European organisations, which has a direct effect on what the British courts may do—and this in the courts all over the British Isles, as they are at the moment.
Therefore, I suggest that we have exactly the same two sets of precondition, which have, I think, lent force to the provisions in paragraph (a), whereby the incompatibility is sent directly to the courts. Just as a clash between the Scottish Assembly legislation and the powers in this Bill would be a directly justiciable issue, and would directly affect members of the public who might fall foul of the inconsistency between the two, it is precisely the same in regard to inconsistencies with European obligations. They, too, are directly justiciable and all courts in this country are seized of them automatically; first, under the treaties and, secondly, under the European Communities Act 1972. Secondly, they are directly applicable to the citizen as an individual, because in his own individual case as it comes before the courts, or as the legislation potentially affects him, which is the same point as under paragraph (a), there is a direct impact on the individual who may in due course be affected by this legislation.
I should, therefore, have thought that logic and common sense would not leave to the Executive the question of incompatibility between a Scottish Assembly Act and a European Community obligation, because this is not a matter for the Executive. This is a matter of law. This is a matter for the courts, with which they are already seized under our existing legislation in this country. It seems to me that whatever body deals with incompatibilities under paragraph (a) can also be seized of incompatibilities under
1122
the European set-up that I have mentioned. That, therefore, is what I have done in this series of Amendments.
There are only two footnotes that I ought to mention. The Committee need not worry very much about the references forward to Sections 36(7) and 37(5A). That is only me trying to be tidy, and to pave the way for future Amendments which we shall discuss on another occasion. But I thought it necessary, in order to bring the provision that I am suggesting within the realm of the treaties and also within the terminology of the domestic legislation. to say a word about the status of the Privy Council, if that is what it is to be, when it reaches a decision on a pre-enactment reference.
First, in order to have the opportunity of going to the European Court of Justice, which, after all, is the definitive body on whether or not something is compatible with the treaties, you have under the treaties themselves to have a court seized of the matter. I am not sure that it is entirely plain under Clause 19 of the Bill that when the Judicial Committee of the Privy Council is dealing with a reference it is, for these purposes, a court. Therefore it would seem to me to be necessary to spell that out.
Secondly, one needs to make the provision fit in with Section 3(1) of the European Communities Act, because that subsection says:
"For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European court, be for determination as such in accordance with the principles laid down by in any relevant decision of the European Court)".
It seems to me that, if the Judicial Committee were to be given the task of deciding this incompatibility, there are two things that they might do. First, they might send it to the European Court under the Treaties to get a definitive answer from that court. May I remind the Committee that to do that is not necessarily something which causes a long delay. If they have to do so, the European Court can move extremely quickly and be very thorough in the process.
Secondly, after the Judicial Committee have looked at the decisions which have

1123
already been handed down by the European Court they might find that they do not need to send it there because the European law is already clear. In those circumstances, they would need to use the powers which are provided under Section 3 of the European Communities Act so that they can be guided by what the European Court has already said, in the same way as other domestic courts are entitled—indeed, I think, required—to take these matters into account.
I am not suggesting that this drafting is correct, but I believe that it deals with some practical problems which must be tied up before one can satisfactorily deal with the matter. The main point is that I do not think that this is a matter for the Executive. It is justiciable and I think that it should go to the courts. I beg to move.
10.7 p.m.
Lord DIPLOCK: I should like to support this Amendment. The question whether a Bill is compatible with Community obligations is a question of law. It involves interpreting two types of legislation: one the Scottish Assembly Bill and the other the Directive, Regulation or Article of the Treaty with which it is suggested that it is incompatible. That is purely a question of law—as much a question of law as under paragraph (a).
Under the Community Act, regulations are part of Scots law. They are directly applicable as part of the law of Scotland. There are many articles of the Treaty which are part of Scots Law. They are directly applicable as part of the law of Scotland. Under many Directives, there are provisions which are directly applicable. They are part of the law of Scotland. This is entirely a justiciable matter, where the provisions of the Scottish Assembly Bill conflict with those parts of the law of Scotland which derive from the Community obligations of this country and which, under the European Communities Act 1972, are part of the law of Scotland.
It is doubly important that this particular legal question should go to a court or tribunal (I add "tribunal" to "court" because that is covered by Article 177 of the Treaty) and not to an Executive
1124
decision, because the ultimate interpreter of Community law, of the Treaty, Directives and Regulations, is the European Court of Justice—not any court in this country. Courts in this country are required by the European Communities Act 1972 to follow the law as laid down by the European Court.
Thus, when any question of this kind which involves the interpretation of European law—Community obligations of Directives, Articles of the Treaty or Regulations—arises, if we are to get the right answer, if we are to know whether this is part of the law, whether or not it is infra vires, it is essential that it should go through a procedure through which the matter may be referred to the European Court of Justice in order to get the final interpretation of what the Community obligations are. The only way of doing that is by referring the matter to a court or tribunal, and the Judicial Committee of the Privy Council is such a court or tribunal. It is one which, since there would be no appeal from it, would be under an obligation to refer the matter to the European Court, unless it was a question of interpretation which had already been decided by decisions of the European Court.
I suggest to the noble and learned Lord, Lord McCluskey, that this is a matter which requires consideration. I say with some confidence that, when he has given consideration to it, he will come to the conclusion that the way provided in this Amendment is the only correct way of dealing with this particular problem of compatibility between Scottish Assembly Acts and our duties under the Treaties and our Statutory obligation under the Act of 1972.
Lord DRUMALBYN: I wish to add a word or two in support of the Amendment moved by my noble friend Lord Colville of Culross and supported by the noble and learned Lord, Lord Diplock. Both of them have spoken mainly about Instruments that are of direct applicability, but there is also the very important side of those Directives which constitute obligations to be implemented by the legislation of the Member countries. In this connection Scotland is not a Member country per se, but the Assembly will be legislating on devolved matters which are very much

1125
affected by many of the Directives. When these Directives come along they have to be looked at by the Departments concerned to see to what extent the existing law is affected, the existing law being both United Kingdom law and Assembly law, when the time comes. This must be done and, although the Assembly law has yet to come, one has to consider what the situation will be and what is the best method of handling it.
I am quite certain that the right way to handle it is to refer this to the Judicial Committee for examination where there is any doubt whatever. I think the right person to look at this is the Secretary of State, if only because he will he coordinating for the United Kingdom Ministries as a whole and he can be the focal point for the examination of Scottish Assembly legislation in this matter. But, where there is doubt, it would seem to me to be quite wrong for him to interpret the Directive and to lay down for the Scottish Assembly how they are going to legislate in the matter. It ought to be for a court to say whether new Assembly legislation is out of keeping and out of step with the Directives that already exist.
Of course, this has to be looked at from two points of view, and I can quite see how it is that the Government have taken this view, because inevitably one will be considering not only what is already laid down in Directives but what is in the pipeline, what is coming along and is likely to be laid down. I take this opportunity of saying this because I think it is probably the only opportunity one will get in the passage of this Bill.
This is a very important matter for the Scottish Assembly. I should like to know what will be the arrangements for liaising between the United Kingdom Departments which will be taking part in the formation of these Directives and the Scottish Executive. This is very important because it can also affect Assembly legislation which is in the pipeline. But I do not see how the Secretary of State himself could say to the Scottish Assembly, "You cannot legislate in that way until the Directive is finalised". One has to remember that Directives very often take a long period in gestation. So, while I should like to know what are the proposals for
1126
keeping the Scottish Assembly informed of what is going on in Brussels—and indeed for participating in what is going on, because that is very important—at the same time, I think one must be quite clear that where a Directive has been made and where it appears that a Scottish Bill is not in line with that Directive, the right course is for the Secretary of State to refer the matter to the Judicial Committee of the Privy Council.
The Earl of SELKIRK: I do think that this will be an extremely embarrassing problem for the Secretary of State which will probably arise if we leave the Bill as it is. He has virtually to tell the Assembly what they must do, and we here know already that we shall have to do something we do not want to do. That is what is going to happen because the EEC is going to pass legislation some of which we shall not like. We have to face up to it; we have done it already, and the Scots will have to do it. If the Secretary of State goes to the Assembly and says, "You cannot do that" or "You must do that", that will arouse opposition. I believe he will be in a much stronger position if he says that the judicial body—whether it he a constitutional court or the Judicial Committee—says that this is the right course. I believe this will be much easier for the Scottish Assembly, or Convention or whatever you call it, to accept than simply the ipse dixit of the Secretary of State. I think this is a very embarrassing position for him and it will cause difficulty. I believe, therefore, that this would be a much easier course to take.
Lord SCARMAN: I should like to support the Amendment very much for the reason just given by my noble friend Lord Selkirk. The difficulty that I envisage for the United Kingdom, for the Secretary of State and for the Scottish Assembly, will be that there is bound to be doubt sometimes—in fact, quite frequently—as to whether an Assembly Bill is compatible with Community obligations. The European Court of Justice is empowered to protect the treaties and to interpret them. The Secretary of State cannot be sure that his opinion is correct if the matter is difficult or complex. Moreover, I should have thought that it would be highly embarrassing for all concerned if

1127
the question ultimately had to be determined after the Bill had become law and after it was challenged, and the matter was then taken to the European Court and a ruling adverse to the United Kingdom and to the Assembly law was then reached.
The virtue of this Amendment, and the reason why I support it, is that it seems to me that it provides a way in which embarrassment can be avoided and clarity and certainty obtained at an early stage, without imposing upon the Secretary of State a most invidious responsibility.
Lord BALERNO: The argument emphasises how utterly important it is that Scotland should be independently associated with the EEC in the consultations leading to the Directives which will be issued. In those circumstances the Assembly will be well aware of what is coming before it and what it will have to decide and it will not be taken by surprise, as would be the case if it were not freely consulted at any early stage.
10.22 p.m.
Lord McCLUSKEY: First of all, I should like to say that I accept entirely the analysis of the matter with which the noble Viscount, Lord Colville of Culross, opened his address. The reasons which he supposed we might have for having the provisions in this form were substantially the reasons for having the provisions in this particular form.
Secondly, I must confess that I approached the matter by looking at the question with which the noble Lord, Lord Drumalbyn, dealt rather than the question of direct applicability. It may be that 1 was wrong, but I looked at the wording of the Amendment and compared it with the wording of Schedule 1 to the European Communities Act 1972. Amendment 83 refers to:
"Community obligations of the United Kingdom".
I had rather read that, as I think perhaps the noble Lord, Lord Drumalbyn, may have read it, as indicating obligations resting upon the Member State. However, "Community obligation" as defined in Schedule 1 to the European Communities Act 1972 means:
1128
"any obligation created or arising by or under the Treaties, whether an enforceable Community obligation or not".
Looking at that definition and knowing that the noble Viscount does not use words unless he intends them to have some specific meaning, I understood him to mean something rather different from "Community obligation" as defined in Schedule 1. Therefore, I am prepared to deal with the point of obligations upon the United Kingdom rather than the point of obligations which are directly applicable.
Viscount COLVILLE of CULROSS: I entirely understand that. Will the noble and learned Lord tell us with which obligations the Bill deals as it is now drafted? It seemed to me that it was probable that it dealt with both.
Lord McCLUSKEY: I think that one must look at the Bill. We are talking about both in the Bill. Of course, if the noble Viscount is of the opinion that the Bill is not compatible with Community obligations, I think that one could say, having regard to the terms of Schedule 1 to the 1972 Act, that the Bill is concerned with both. I think that the answer that I would offer is, in truth, applicable to both the separate points which have been made. As the noble Viscount put it, the question is: Is there a justiciable issue which it is proper to refer to a court? He looked at the reasons why issues of vires might go to a court and issues of this kind might be thought to be different. In my submission, there is not at this stage a justiciable issue. The issue at this stage is one truly of administration because, when one is talking about a Bill, at this stage there is no contested issue of law appropriate for judicial interpretation.
The issue is not one of vires; it is an issue as to whether a provision, which is not yet law, and one which would be intra vires, is compatible with existing international obligations. It is Her Majesty's Government who maintain and have the responsibility for the conduct of international relations, and who accept—and have to accept—on an international level the responsibility for securing the implementation of obligations entered into at that level. That is clear in this context from Article 189 of the Treaty, which refers to Member States. The responsibility for securing that obligations

1129
are obtempered rests upon the Member State, in this case the United Kingdom Government; and Her Majesty's Government cannot delegate that responsibility either to a subordinate legislative body, on the one hand, or to a court, on the other.
Lord DIPLOCK: I do not want to interrupt the noble and learned Lord, but surely it is just as much a justiciable issue as it is under paragraph (a). If the Scotland Bill is given the Royal Assent and so becomes part of Scots law the question is: Will it be in conflict with the directly applicable community law in Scotland? Surely that is a justiciable issue, just as much as the justiciable issue under (a).
Lord McCLUSKEY: I agree that the distinction, of which the noble and learned Lord, Lord Diplock, doubts the existence, is a subtle one; but I would suggest that there is a distinction. At the end of the day, given that the United Kingdom Government have the responsibility for ensuring that international obligations are carried through, they cannot delegate to some court the responsibility for deciding whether or not that international obligation exists. That is the distinction.
The vires question can be sent to a court and the Bill provides that it will be sent to a court: the court determines that purely legal question, and that is an end of the matter. But if the United Kingdom Government, having the responsibility for ensuring that an international obligation is obtempered, refer that to a court, the responsibility still rests upon the Secretary of State. If the court should happen to get it wrong, the Secretary of State cannot shelter in his international forum behind the decision of the domestic court. I would suggest that that is the distinction.
Lord DRUMALBYN: Before the noble and learned Lord leaves that issue, is that entirely right? The domestic court is capable of referring the matter to the European Court of Justice before it gives its decision. In that case, there should be no chance at all of its diverging from the correct interpretation, as seen by the European Court.
Lord DIPLOCK: Not only is it capable of doing so; it is obliged to do so.
Lord McCLUSKEY: I wonder whether the noble and learned Lord could help me by pointing to a provision in the Treaty which obliges the European Court of Justice to entertain a question of this kind; that is to say, a question of the possible conflict between, on the one hand, a provision in a Bill and, on the other hand, an existing obligation? I shall not pretend that I have made a complete search of the Treaty, but I have not yet found a provision under which the European Court will entertain the question of a possible, hypothetical conflict between a Bill, which may or may not pass an Assembly, and a provision in it, on the one hand, and an existing obligation to the Community on the other hand.
Lord DIPLOCK: Article 177.
Viscount COLVILLE of CULROSS: The noble and learned Lord must be wrong. The Bill has already passed the Assembly. There is no doubt about what its contents are. This was the whole point of the argument earlier in the Committee. We know what is in the Bill. The question is whether or not it is compatible.
Lord McCLUSKEY: I am looking at Article 177. It provides:
"The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of measures taken by the institutions of the Community; (c) the interpretation of the statutes of bodies"
established by an Act of the Council, where those Statutes so provide. I defer to the noble and learned Lord, but I did not read Article 177 as conferring upon the Court of Justice jurisdiction to give a ruling about the interpretation of a provision contained in a Bill, which is not law, emanating from the Scottish Assembly.
Lord DIPLOCK: The Court of Justice is the final court which English courts and Scottish courts are bound to follow on the interpretation of Community legislation. The Judicial Committee of the Privy Council will be the final court on the interpretation of Scottish legislation. What one has to see—and this is a justiciable issue—is whether the proposed legislation in the Bill is compatible with

1131
the Community legislation. If there is any doubt in the minds of the Judicial Committee as to what the correct interpretation of the Community legislation is, they are not only entitled they are bound to refer that matter to the European Court of Justice and to apply the interpretation which the European Court of Justice has given. I am bound to say that I cannot see that this is not a purely justiciable issue which has to be determined in this type of case.
Lord McCLUSKEY: I am sorry that I cannot carry the noble and learned Lord with me in drawing the distinction between the point that arises in a case, and the kind of point that arises in relation to a provision in a Bill which has not yet become law. Of course, I will certainly look at what has been said by noble Lords and noble and learned Lords in relation to this, to see whether or not the thinking that lay behind the provision and the resistance to this Amendment is still sound, particularly in the light of the point about direct applicability which I had not, 1 confess, prepared to meet in the way it was presented.
I should like to add, in relation to the obligations which rest upon Her Majesty's Government, or upon the State, that it is Her Majesty's Government, and no one else, who have to face infraction proceedings which may arise under the Treaty. Therefore, it is Her Majesty's Government who insist upon maintaining the full means of exercising that responsibility so that they can, if necessary, block an Assembly Bill (as is allowed by Clause 19(1)(b)) that apparently contravenes a Community obligation. Of course they can decide themselves to secure implementation of Community obligations in relation to devolved matters. It would be totally unacceptable for the Government, who have the international responsibility, to be unable to take quickly the necessary action to secure full implementation simply because the Judicial Committee was determining whether a Bill involved contravention of a particular obligation.
I want to emphasise that point: it may be that the Judicial Committee can, in certain circumstances, move very quickly, but if there was an obligation upon Her Majesty's Government to implement a
1132
Community obligation, they could not stand by and not implement it while they waited for the Judicial Committee to consider the matter which had been referred to it.
The Earl of SELKIRK: Could we not take emergency action under Clause 36, which deals with the power to prevent or require action? I am thinking only of emergency action.
Lord McCLUSKEY: We are talking in Clause 19 about primary legislation, whereas I think Clause 36 is directed to a different matter, so the answer to that question must be, No. I accept that the provision in the Bill is a deliberate derogation from devolution, but I ask the Committee to see it in perspective. Those who are familiar with the earlier measure—the Scotland and Wales Bill—will recall that, originally, devolved responsibility for all devolved matters to do with the Community and other international obligations rested with, and only with, the United Kingdom Government. The present Bill contains a move away from that and leaves the way free for the Scottish Assembly and the Executive to implement those obligations within devolved areas; but the Bill retains an oversight of this responsibility and that, as I say, must be securely vested in the Government and in the Secretary of State acting for the Government, and one sees that in Clause 19 and in Clause 60(3).
That is the Government's position on the matter. As I have indicated, I shall, in the light of the debate, look at the matter again. I am not trying to suggest that the Government propose to change their position, but I must take account of what has been said by noble Lords and the noble and learned Viscount, and I do not think I can add to what I have said about that.
The Earl of PERTH: Can the noble and learned Lord help the Committee on the question raised by the noble Lords, Lord Drumalbyn and Lord Balerno? I accept that in the last analysis the responsibility is Her Majesty's Government's; but what machinery do the Government propose to ensure that the Scottish Assembly is brought into consultation either with Her Majesty's Government or the Community in Europe?
Lord McCLUSKEY: I am obliged to the noble Earl for reminding me of that matter; I had intended to deal with it but was referring to other matters. So far as liaison is concerned, the answer can, I think, only be that we cannot at this stage legislate for liaison arrangements; that must be a matter for discussion between the Executive, when it is formed, and the Government of the day. It is surely not possible to legislate for that matter—indeed, it would not be wise to try to do so, in advance of the setting up of the Executive and hearing their view on what arrangements they would want, what kind of representation, whether permanent or temporary and so on—and it would be impossible and unwise to try to lay down hard and fast rules. That is the only answer I can give, but I submit it is a sound one.
10.38 p.m.
Lord DRUMALBYN: Before we leave this question, one is bound to be especially troubled by the kind of indirect relationship that will arise in this case. EEC Directives, for example, will come out and will be addressed to Her Majesty's Government and the other Members. It will then be the duty of Her Majesty's Government vis-à-vis the EEC to ensure that all law in Britain—whether United Kingdom, English, Welsh or Scottish—conforms to those Directives. The difficulty about the Directives is that they cover to a large extent what is already in our law; but the law will have to be changed in certain respects. In the early stages, the same changes in the law could easily be made both by the Assembly and by Westminster because the law starts by being roughly the same in the two places; but gradually there is likely to be increasing divergence as the Assembly builds up its own law from the law that is enacted at Westminster. Does the noble and learned Lord envisage that, simply because the United Kingdom has this responsibility, vis-à-vis the Community, of ensuring that the Directives are implemented, the Westminster Parliament will continue to legislate even on devolved matters? Or, on the devolved matters in Scotland, will it be possible for the Assembly to legislate separately, even though they are doing the same thing, as they have to do under the Directive?
Lord McCLUSKEY: First, in relation to Directives which require action within the Member State—and not Directives which may be directly applicable—the Bill certainly envisages that the Assembly has the competence to implement a Directive which requires legislative action within the Member State. It certainly has, within the devolved field, the competence to do that. Clause 60(3) states:
"If it appears to a Minister of the Crown—

(a) that the implementation of a Community obligation or any other international obligation of the United Kingdom requires the exercise of any power to make a subordinate instrument; and

(b) that the power could be exercised by a Scottish Secretary; but

(c) that it is desirable that it should be exercised by a Minister of the Crown,

he may exercise the power as if the matter with respect to which it is exercisable were not a devolved matter".
So the scheme of the Bill is, in relation to devolved matters, where there is a Community obligation which requires to be perfected within the Member State by further legislative action, or by subordinate Instrument, that can be done either by the devolved Assembly, or by a Scottish Secretary, or it can be done by the United Kingdom Parliament, or by a Minister of the Crown. One hopes that these matters will be discussed, and that whatever is the most suitable vehicle will be the one chosen. But, at the end of the clay, having regard to the scheme of the Bill, and for the reasons I gave earlier—about the need for the United Kingdom Government to accept and honour the responsibility that they have for ensuring that international obligations are met—the ultimate responsibility rests with Her Majesty's Government.
Lord THOMSON of MONIFIETH: May I ask my noble and learned friend about a matter arising out of these questions? He has explained that in this Bill, as compared with the previous Bill, devolved matters relating to these Community Directives can now be dealt with by the Scottish Assembly. Has he given consideration to some of the consequences which may flow from this? If, for example, there is, as often happens, a Community Directive which has optional clauses, will it be open to the Scottish Executive and the Scottish Assembly to implement these optional clauses in Scotland while they are not

1135
implemented in the rest of the United Kingdom? Will it be open to the Scottish Executive and the Scottish Assembly to implement Directives on a different timetable from what may happen in the rest of the United Kingdom?
Is he aware that there is considerable concern, among those who have to deal with the consequences of these Directives in this country, that we shall get into an extremely untidy, complicated, and difficult situation if these matters are not thought through? I do not press my noble and learned friend for an answer on this matter now, but it comes up later in the Bill, and I believe that we need much more clarification on this.
Lord McCLUSKEY: By way of a preliminary to that point, I should like to say that it very often happens that obligations which are accepted as being, in effect, United Kingdom obligations are, at the present time, brought into force in Scotland on different dates from the rest of the country, because there is sometimes a need for separate Scottish legislation. The noble Baroness, Lady Elles, referred earlier to the Renton Committee Report; that report makes it very clear that that is so. When we speak of devolved matters, that may well be so in relation to devolved matters in a Community context. But I welcome the opportunity given to me by my noble friend Lord Thomson of Monifieth to return to this matter when I deal with Clause 60(3), when I can then give him the considered answer which his point properly deserves.
The Earl of PERTH: Can the noble and learned Lord help us just a little further? He said that it was too early to lay down what would be the machinery in the question of consultation. But would he go this much further and undertake that the British Government will have such machinery after consultations in due time with the Assembly?
Lord McCLUSKEY: All I can properly say is that, once there is another party to talk to in the form of a Scottish Executive, the British Government will talk to that party about what is the best way to secure that these matters are
1136
properly liaised—if I may be forgiven that word—between the Scottish Administration and the United Kingdom Government.
Viscount COLVILLE of CULROSS: I do not think we have heard the last of the political aspect that has arisen on this Amendment. Indeed, I am not entirely sure that the House, as it will be at that time, on another stage of the Bill, will wish to leave the matter so much in the air that we finally send this Bill back to another place without knowing, at any rate in embryo, what kind of arrangements might be made between the United Kingdom Government and a Scottish Assembly. I dare say that the nuts and bolts will have to he screwed on when it comes to the final details; but I think we are going to need to know a good deal more than the noble and learned Lord has been able to tell us this evening. However, as the noble Lord, Lord Thomson, has indicated, we shall be coming back to that, and I shall be very happy to listen to the debate then.
I should like now to deal with the comparatively narrow, but 1 think important matter that arises on this Amendment. I am not going to press it this evening because I am not sure that I have got it right; but, conversely, I am. if I may say so to the noble and learned Lord, absolutely amazed that neither he nor his advisers have apparently even thought of the directly applicable aspect of European Community Articles, Directives and Regulations. It really is absolutely elementary, if I may say so to him with the greatest possible respect, that these are a fact of life which we now have in the courts of this country, and which are directly applicable. I think that, on that line, when he comes to consider what has been said, particularly by the two noble and learned Lords on the Cross-Benches, he will find that there is no distinction whatsoever in logic or in principle between directly applicable European Community obligations and the provisions which are dealt with under paragraph (a).
I do not think it matters whether or not there is anything similar in existence within the Treaties which would allow the European Court to take cognisance of a dispute at a pre-legislative stage if in this country, as I think I am right in saying,

1137
we provide in our own domestic legislation that these are to be legal proceedings and that it is to be before a court or tribunal, in which case I would have thought it fell fairly and squarely within the provisions of the Treaties themselves. If there is any doubt about this, why does the noble and learned Lord not go and ask the institutions in Brussels and in Luxembourg and see what they say about it? If he does not know the answer, they are, I think, the people to go to, even if he has to do it somewhat informally at this stage. Perhaps he could do that, and make sure there is no technical defect in that respect.
Lord McCLUSKEY: May I ask the noble Viscount this? He does accept, I suppose, that at the present time the United Kingdom Parliament, when it introduces legislation, does not in fact go to the European Court while the Bill is in the House to ask whether the Court considers that the Bill is compatible or is not compatible with the international obligations or directly applicable Regulations or Directives? What the Government do in that case is to make their own judgment on the matter, because they have the responsibility, and then, of course, they face the possibility that once the legislation becomes statute law they might then face proceedings in the European Court, where that legislation might be attacked. Why does the noble Viscount suggest it should be different in relation to directly applicable matters when the Scottish Assembly is legislating? Why should he suggest that the responsibility should go to someone other than the Secretary of State?
10.49 p.m.
Viscount COLVILLE of CULROSS: Because when the United Kingdom Parliament passes Acts of Parliament there is no pre-enactment review, and there is therefore no opportunity for this to be done. Very likely it would be an extremely good thing if it was done, but we have no machinery under our unwritten Constitution which will set it up. In the Bill we are providing for a complete set of machinery which is exactly applicable to this situation. If the thing is going to be justiciable on the vires of this Bill, I cannot see the smallest difficulty in making it justiciable on the question of
1138
direct applicability and vires as between the Scottish Assembly Bill and the European Community obligation. The Bill has by that time passed the Scottish Assembly. It is in its final form and nobody can tinker with it. We know what its provisions are and, subject to the rest of the machinery of this Bill being satisfied, it will become an Act of the Assembly in that form.
I cannot see why the noble and learned Lord is making such heavy weather of this. Surely, it is better to get it right before it goes on to the Scottish Statute Book and people start regulating their lives accordingly only to find out that they have got it wrong, and that the whole thing was wrong and should not have been imposed in the first place. What is the noble and learned Lord suggesting we should do about this—merely leave it so that, when the thing is passed and is found to be wrong, some people will have acted in accordance with the Bill as it stands on the Statute Book and will have prejudiced their position and will not be able to revert to what their position previously was? Or that other more astute people will go to better legal advisers and see that the whole thing is in conflict with the European Community, and then get the benefit of not having it applied to them? Is the noble and learned Lord suggesting, when we have the machinery for review before it goes on to the Statute Book, that it should be left to chance?
Lord McCLUSKEY: With respect, the noble Viscount does himself less than justice. As Clause 19(1) provides for the moment in (b) , if the Secretary of State comes to be of the opinion that the Bill is not compatible with the Community obligations, that is the end of the Bill. It does not become an Act. What the noble Viscount proposes is that, if he comes to that very same opinion, he should refer the question to the Judicial Committee and, possibly, thence to the European Court. But in neither situation would a Bill get on to the Statute Book—and particularly in the situation envisaged by the Bill in Clause 19(1)(b). The Bill would not get on to the Statute Book if he reached the very opinion that the noble Viscount suggested he ought to reach before sending it to the Judicial Committee.
Viscount COLVILLE of CULROSS: I do not think that the noble and learned Lord has thought this through. With great respect, the Secretary of State—and I am not talking about the other half of this, which is the non-directly-applicable department, as it were, of our European obligations; and I want to come back to that—will have to form a view in relation to the directly-applicable obligations. What I am suggesting is that he may be wrong. He may think it is compatible and so does not do anything about vetoing it; and he is wrong. If there is doubt about it, he must resolve it one way or another. If there is doubt, he must make up his mind whether or not it is compatible.
Only if he comes to the conclusion that it is incompatible as the clause stands will he veto it. If he thinks that, on balance, or whatever the test will be, it is compatible, he will allow it to go forward. There is no other machinery whereby it can be vetoed; it will go on to the Statute Book—and then it is found to be wrong. Then the situation arises that I have suggested to the noble and learned Lord.
I am suggesting that all this can be easily prevented by the Secretary of State not having to take a decision which, with great respect to him, he is not competent to take, which is a judicial decision, and not an Executive or Parliamentary decision, on the technical matter which the noble and learned Lord, Lord Diplock, has said falls fairly and squarely within the definition of a justiciable issue.
The noble and learned Lord is going to be faced by us again with another Amendment on this which I hope next time he is going to receive with a great deal more welcome than was the case just now. I am not going to leave the matter in this form on this part of the problem of the conflict with Europe. On the other half, I think he may have a point. The noble Lord, Lord Thomson, will know better than I what are the varieties of Directives and Regulations which come from Brussels. I know that some of them can be instantly recognised by anybody as being directly applicable. Quite a lot of them cannot be recognised, one way or the other, by anybody until a case arises when some court has to
1140
think: "Does this, in fact, take a form whereby it is to be interpreted as having a direct effect upon the actions of an individual within the domestic legislation as brought in by the European Communities Act?" Some of them are not directly applicable at all and would only be entertained by the European Court if a Nation State, at the suit of the Commission, as a rule, was the litigant.
It is the latter kind which I suspect has dominated the Government's thinking on the way they have drafted this paragraph. Of course it is right that this should be taken care of, because I quite see that if the matter is not directly applicable and what it involves is the Government of this country, whether it is the United Kingdom Government or the Scottish Executive, legislating in order to do something that vye have been told to do by one or other of the European institutions, the Government must keep their hand on that matter.
That is a political matter like the other international obligations with which I have not sought to interfere which are at the moment dealt with in a separate subsection according to my Amendments. I see the sub-division; I hope that the noble and learned Lord also sees the point about the part of it with which I am concerned. I do not think that the Bill deals with my part; I believe there is a lacuna in it and something we really ought to think of seriously again, especially if the Government have never thought of this before. The noble and learned Lord has already promised us quite adequate reconsideration of this matter. I do not want him to say any more about it. I am sure he will think about it and, he may be assured, so will we and we will be back.
Lord MACKIE of BENSHIE: I wonder whether the noble and learned Lord could help the layman with this matter. As I understand it, he wants to make absolutely certain before a Bill becomes law and before it goes through the Assembly perhaps, that consultations take place, both with the Judicial Committee of the Privy Council and perhaps to seek an opinion from the European Court. Could he tell me what this means in terms of time? It appears to me as a layman in these matters that if we are

1141
going to wait for judicial opinions from all over Europe, it might be better to take a risk on the opinions of our own lawyers which we might get a little more quickly.
Viscount COLVILLE of CULROSS: I touched upon this. When I went to talk to the members of the European Court last year, I was given two examples. One was the fishery case, which was a Government versus the Commission one, and the other one was a matter which concerned the Republic of Ireland. Perhaps that was the fishery one; I cannot now remember. The proceedings had been dealt with at such speed that, I think, from the initiation of the proceedings until the delivery of the judgment of the Court, after it had been translated from its original French into English, vetted by the British judge and delivered to the Embassy, the period was something under five days. If that is not fairly impressive, I do not know what we can show in this country to equal it. In the circumstances, we have explored this issue so far as we can, and, for the moment, I should like leave to withdraw the Amendment on the undertakings that the noble and learned Lord has given and on the promise that I have given that we will return to the matter.
Amendment, by leave withdrawn.
[Amendments Nos. 84, 86 and 85 not moved.]
Baroness LLEWELYN-DAVIES of HASTOE: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

COMMONS REGISTRATION (CARDIGANSHIRE) BILL
Examiner's Certificate that no further Standing Order is applicable; Ordered to lie on the Table.
CHRIST CHURCH WOBURN SQUARE AND SAINT MATTHEW OAKLEY SQUARE BILL [H.L.]
Reported from the Unopposed Bill Committee with Amendments.
KENDAL MARKET BILL [H.L.]
Reported from the Unopposed Bill Committee (on Re-commitment) without amendment.