SCOTLAND BILL

HL Deb 18 April 1978 vol 390 cc1087-141

House again in Committee on Clause 19.

[Amendments Nos. 296, 297 and 82 not moved.]

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 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.

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 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 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 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 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 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.

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 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 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 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 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- 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 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 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 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.

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 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 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 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 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 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 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, 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 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.

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 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 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 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 moved Amendment No. 83: Page 8, line 17, leave out ("and") and insert—("or

1. (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
2. (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 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 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 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 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 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 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 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 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: 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 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 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 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—

1. (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
2. (b) that the power could be exercised by a Scottish Secretary; but
3. (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 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 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, 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 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 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 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.