§ 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 COMMITTEESI 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 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-NICHOLLSThe 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 McCLUSKEYI 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-NICHOLLSThat 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 BENSHIESince 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 LANGSIDEIn 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 CROYThe 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 DILHORNEThe 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 BARLOCHI 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 STRABOLGII 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.