§ 3 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
1618 Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[Lord GREENWOOD OF ROSSENDALE in the Chair.]
Clause 34 [Potter to make changes in law consequential on Scottish Assembly Acts]:
The Earl of MANSFIELD moved Amendment No. 128:
Page 16, line 17, leave out ("or expedient").
The noble Earl said
This Amendment relates to Clause 34, upon which there was a discussion in your Lordships' Committee last night. Taking the matter briefly, Clause 34 gives the Government of the day powers to make changes in the law of any part of the United Kingdom consequential to a provision made by or under a Scottish Assembly Act. I suggest that this is a fairly novel way of changing the law in this country, that is to say by Order in Council in this manner, although I think it is true to say that similar provisions appear in the Northern Ireland Constitution Act and the Local Government (Scotland) Act, both of 1973, to name but two. However, I do not think the cases are exactly parallel and there is the further matter that, although the system as proposed in this Bill is safeguarded to some extent by the fact that the order has to be approved by the Affirmative Resolution procedure, as is the invariable case with these orders they can either be approved or not approved but they cannot be amended.
So far as the Amendment is concerned your Lordships will see that it seeks to delete the words "or expedient" from subsection (1). The first question I wish to put to the noble and learned Lord who I anticipate will reply to the debate is this: What circumstances does he foresee which will lead to the Government wishing in the future to make changes in the law by Order in Council under this procedure? I will say at once that there was a heated debate in the other place on a subject which was not entirely similar to this. Nevertheless, I hope that by now the noble and learned Lord will be in a position to give illustrations or at 1619 any rate to describe the sort of Acts which will make the Government feel that this provision should be used in certain circumstances.
So far as the words "necessary or expedient" are concerned, I wish to say only that in the Local Government (Scotland) Act I think the words necessary or proper "are used, and that seems to me to be a better way of describing it. If the Amendment were approved I suppose it would infinitesimally fetter the discretion of the Government in that an order could only be placed for Affirmative Resolution if what it did was necessary rather than convenient. I beg to move.
§ The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)
I think it would be best to begin by reminding the Committee that we had a discussion on a related matter when we discussed Schedule 2, and in particular paragraph 8 of that Schedule. Your Lordships will recall that following that discussion I undertook to look again at the wording of paragraph 8, which was similar in some respects to this wording although the context is rather different, and as I intimated last night in the course of another debate, we are making progress with our further look at that wording and we hope to bring forward a satisfactory solution. That has some bearing upon this because in order to answer the noble Earl's question I have to turn to the circumstances in which the Government envisage that Clause 34 might be used.
I explained this in the earlier debate, but perhaps I may do so shortly again. The exercise of ordinary legislative competence by the Scottish Assembly will inevitably entail consequential amendment to legislation about non-devolved matters. But we accept that particularly in the other place there was some alarm about the apparent possibilities of Clause 34. The Government have looked at the matter again closely but remain of the view that Clause 34 is in a well precedented and acceptable form.
The wording of the clause is very limited indeed. The principal limitation of the power conferred by Clause 34 lies in the legislative competence of the Assembly itself. Far from having unrestricted com- 1620 petence, the Assembly can only legislate within a very precise definition of devolved matters and beyond this, to a limited extent, allowed as the Bill now stands by paragraph 8 of Schedule 2. This restriction, taken with the provisions of paragraph 7 of that same Schedule, which prevent an Assembly Act from amending the Scotland Act, makes it apparent that the Assembly could in no way legislate to affect the main constitutional provisions on which the devolution settlement is constructed. Since an Assembly Act is thus expressly prevented from amending the Scotland Act, consequential changes in United Kingdom law—if the noble Earl, Lord Selkirk, will forgive me for using that expression as a form of shorthand—would arise from the need, for example, to substitute statutory references in Part III of Schedule 10 or to insert or amend the names of Scottish bodies. Because the competence of the Assembly is limited in this way it must follow that the ambit of Clause 34 powers which are expressed to be consequential—and I emphasise the word "consequential"— on provisions made by an Assembly Act, must be even more restricted.
I will now turn to the wording. The Amendment would cut back the powers of Clause 34 by preventing provision which is expedient. The only test left then would be that of necessity and that could be a very high and difficult hurdle to cross on its own. As the noble Earl pointed out, the term "necessary or expedient" is not wholly unprecedented. It is a precedented provision for making a multitude of Amendments to United Kingdom legislation which the Bill could not encompass without growing to enormous size. As he has indicated, it has a respectable ancestry to be found in Section 254 of the Local Government Act of 1972. That Act empowered a Minister to make such consequential provision as appeared to him to be "necessary or proper", and I suggest that the difference in wording is not of any great significance.
Section 254 of the 1972 Act referred to the power of the Minister to make such consequential provisions as appear to him to be "necessary or proper" in consequence of the Act or in giving full effect to it. The same words are to be found in the corresponding provision; namely, 1621 Section 215 of the Local Government (Scotland) Act 1973. Again, the Northern Ireland Constitution Act 1973, which the noble Earl mentioned and indeed which I quoted in the Official Report at col. 1030, contains similar wording. The breadth of those powers seems to be indistinguishable from the breadth of the powers now sought and there is no evidence that they were criticised as being too wide at the time. Indeed, if any narrower powers had been provided they could have been criticised as being inadequate for the purpose. Breadth is particularly necessary in the present context when the operation is so very much wider than, say, local government reorganisation and this particular operation in which we are engaged, namely devolution, lacks any precedent other than the Northern Ireland precedent in 1973.
So we regard Clause 34 as being an essential provision to enable any necessary tidying up to be done in consequence of the passing of Scottish Assembly Acts. If the ability to do this were curtailed in the way suggested by the Amendment a good deal of Parliamentary time could be spent discussing minor consequential matters for which the Scottish Assembly was primarily responsible.
I would remind your Lordships that there is the Affirmative Resolution procedure. I accept the general observation about it which the noble Earl has made, but in this kind of case where what we should be engaged upon would be simply a tidying up matter it is difficult to see that any amendment to the order would ordinarily be expected. In relation to the word itself, I would remind your Lordships that when the use of the same word "expedient" was criticised in its context of paragraph 8 of Schedule 2 by, among others, the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Diplock, they said that in that context the word was used objectively and it was not a suitable word for a court to construe, and they desiderated using it in a context where there was an element of political judgment and an element of subjective judgment.
That is the context of Clause 34. 1 really cannot, in their absence, say what they would say, but it would appear from what they said on that occasion—in column 1023 for the noble and learned 1622 Lord, Lord Diplock, and column 1030 for the noble and learned Viscount, Lord Dilhorne—that they would not criticise the use of the word "expedient" in its context in Clause 34. 1 hope that, in the light of that explanation, the noble Earl will not wish to press this Amendment.
§ Lord HARMAR-NICHOLLS
Did I understand the noble and learned Lord to say that there were precedents for the word "expedient" or did he say it was necessary or proper and that "proper" in that sense was the same as "expedient"? If that is what he was saying I cannot accept that. "Expedient" has a meaning of its own; it is rather loose. It can mean what you intend it to mean in many cases. would imagine that that was why the noble and learned Lords questioned it at an earlier stage. I should not have thought that the altered circumstances surrounding this clause in any way weakened the arguments which they put forward then. "Necessary" is definable in law; that has been laid down. "Expedient" is not, and I doubt if "proper" is either.
I should have thought that this Bill was not one in which to experiment or to start giving legal meanings to words that have not had legal meanings before. If it is that we want "expedient" to have a legal meaning, let us have it properly examined and defined in an area which is perhaps more identifiable than this Bill can be. The question I am putting to the noble and learned Lord is this: did he say that in fact in Bills similar to this "necessary or expedient" had been accepted and that this therefore seems to have worked in practice, or was he saying that in previous Bills the words are "necessary or proper" and was he then arguing that "proper" was the same as "expedient"? If that was his argument, I do not think I can accept that, and nor, I imagine, would the noble and learned Lords, who are very learned in definitions in law.
§ Lord WILSON of LANGSIDE
wonder whether I may follow up Lord Harmar-Nicholls' point by asking the noble and learned Lord what he takes to be the meaning in this context of the word "expedient". It has been said that it has several meanings, but one which immediately comes to mind is something which is politic or useful but not necessarily 1623 right or just. It seems to me that a provision which on the face of it extends to an extraordinary extent, not, of course, the power of the Assembly, but the power of what can be done by Order in Council, and which is an extraordinary extension of administrative power, should not be left in this uncertain state. Perhaps the noble and learned Lord can enlighten us on that.
§ Lord HAILSHAM of SAINT MARYLEBONE
May I make a further comment, which I hope will not delay the Committee very long. I reflected about it on Schedule 2, and I am reflecting about it still. I doubt whether there is any difference in this context between "necessary" and "expedient", because I cannot conceive of a thing being necessary which was not also expedient, and in this context I cannot conceive of anything being expedient which was not expedient because it was necessary. Having said that, I wish to draw a general moral. The verbosity of the Parliamentary draftsmen is almost that of the late Archbishop Cranmer, who used to dissemble and cloak things from the face of Almighty God. They will always use two words where one will do. I must add that every time two words are used when one will do the poor Houses of Parliament in Committee have to spend about a quarter of an hour discussing what is the difference between them.
§ Lord McCLUSKEY
If I may, I shall remind the noble and learned Lord of what he said on the last occasion—and I quote from column 1034:So that, if the word 'expedient' is required, I would suggest to the noble and learned Lord that some machinery should he discovered to make the Executive responsible for deciding what is expedient, so that they may be answerable to Parliament, and not the courts".—[Official Report, 18/4/78, col. 1034.]I think the noble and learned Lord will recognise that, at least in Clause 34, that criticism which fell to be levelled at Schedule 2 does not fall to be levelled here.
To take the point raised by the noble and learned Lord, Lord Wilson of Lang-side, he asked me to define the word "expedient". I think the correct answer is that one should not take that one word; one must look at it in its context. The wording is: 1624necessary or expedient in consequence of any provision made by or under any Scottish Assembly Act".In that context, I would suggest that the word "expedient" has its normal meaning in this kind of context, to which I shall come in a moment. It simply means, in relation to a provision, a provision which expedes.
§ Lord McCLUSKEY
Look it up. If it is not in the noble Earl's dictionary, it is certainly in any dictionary that I would consult. Accordingly, looking at it in its context, one would look at the provision which it is proposed to put in the Order in Council and say, "This is one which facilitates the putting into operation of the provision contained in the Scottish Assembly Act and is a consequence of it". That would be the ordinary meaning, in my submission.
I was asked by the noble Lord, Lord Harmar-Nicholls, a question which he asked me the last time we came to this. I shall endeavour, in order to be consistent, to give the same answer. On that occasion I quoted the wording of Section 5(7) of the Northern Ireland Constitution Act 1973, introduced by a previous Government, where, in a context similar to this—namely, where the judgement was to be made by the Secretary of State—the wording was:For the purposes of this section, a provision is ancillary to other provisions if it is a provision which is necessary or expedient for making those other provisions effective".So it is very similar. The noble Earl and I both referred to the Local Government Act. Curiously, when I was looking through Schedule 4 yesterday, I found the Public Health (Scotland) Act 1945, and I find that that Act, which was passed in December 1945, contained in Section 1 —one of the provisions referred to in Schedule 4—the following provision, which I read short, but I hope not unfairly:the Secretary of State may … make regulations …(c) for preventing the spread of infection by means of any vessel or aircraft leaving any place, so far as may be necessary or expedient for the purpose of carrying out any treaty, convention, arrangement or engagement with any other country ".So I think it has a respectable and ancient ancestry. I would defend it upon all these grounds. I hope I have answered 1625 all the questions, and I would hope that the Amendment will now be withdrawn.
§ The Earl of MANSFIELD
There is nothing like a good discussion on semantics to excite your Lordships. I do not intend to prolong the agony any further, except to ask that, if the Government—should we be so unfortunate as to see them in power for much longer—make up any more of these Bills, the word "expedient" should be left out as being surplussage, or alternatively the word "proper" put in so that everybody understands what it means. But, for the present purpose, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 34 agreed to.
§ Clause 35 [Power to move rejection of certain Assembly Bills]:
§ 3.20 p.m.
§ The Earl of MANSFIELD moved Amendment No. 129:
Page 16, line 24, after ("State") insert ("in the case of any Bill passed by the Assembly which does not fall within section 19(1)(c) or 19(4) of this Act").
The noble Earl said
We now pass to a matter which is of very much greater consequence, both in the context of this Bill and much more especially to the citizens of the United Kingdom if this Bill should become an Act and pass into law. I suggest that we deal with Amendments Nos. 129 to 134 in one debate. I shall speak to all my Amendments in one speech because it seems to me that different considerations arise on Amendment No. 253, which no doubt the noble and learned Lord will move. Further and still different considerations will subsist when my noble friend Lord Ferrers moves Amendment No. 330. It may be convenient if we consider Clause 35(1) and the Amendments thereto at this time.
The drafting of the Amendments is perhaps a little complicated. It may be for the convenience of the Committee if I read how the clause would read if the Amendments were accepted, because then, in my submission, the whole passage falls into place. I shall then try to explain 1626 why it came about that my noble friend and I tabled them. Clause 35(1) will read:If it appears to the Secretary of State, in the case of any Bill passed by the Assembly which does not fall within Section 19(1)(b) or 19(4) of this Act that the Bill contains any provision which would affect directly or indirectly any reserve matter, or that the enactment of that provision would not be in the public interest, he shall lay the Bill before Parliament with …Then it goes on. I shall come back to that point.
The first part—this is the first Amendment—writes into the clause that, in effect, the first matter that the Secretary of State must take cognisance of is whether the Bill passed by the Assembly falls into Clause 19(1)(b) or Clause 19(4) of the Bill as it stands unamended. One can see the point of that. If it falls into Clause 19(1)(b), then the Secretary of State will have already formed the opinion that the Bill is not compatible with Community obligations or any other international obligations of the United Kingdom, or that it provides for matters which are, or ought to be, provided for in legislation passed by Parliament and implementing any such obligation. So the Bill will have failed to surmount that preliminary hurdle.
Turning to Clause 19(4), the Bill will have failed at the second hurdle, because the Judicial Committee of the Privy Council will have decided that the Bill is not within the legislative competence of the Assembly. Therefore we are talking in this clause, as will be agreed, about Scottish Assembly Bills which have got through that first test; that is, whether they come within the ambit of Clause 19.
We now come to the next part of this subsection—the fact that a Bill contains any provision which would affect, directly or indirectly, any reserve matter. That is perfectly easy to comprehend. This clause is a safety net. It comes in, as it were, after the Secretary of State has considered any other reserve power that he may have. What we have done in Amendment No. 130 is to change the emphasis. As the Bill stands, the Secretary of State, first, must determine that the Bill, as passed by the Assembly, contains a provision which would, or might, affect a reserve matter. Then, under (b), he has to go on and say not only that he is satisfied, so to speak, on (a) but that the enactment of that provision would not be 1627 in the public interest. He could, as the clause stands, say that the Bill offends against Clause 35(1)(a), but because it was in the public interest he could, as it were, let it go through at that stage.
Amendment No. 130 gives the Secretary of State—I want to make no bones about this— a new and much more sweeping reserve power, because it says that not only can he act if he is of the opinion that the Bill offends under (a) but that he also must—not may or shall—act if he is of the opinion that the provision of the enactment would not be in the public interest.
This merits a debate almost by itself. It may well be—and we are only peering into the future at this moment—that the Scottish Assembly will act in a way that will be entirely constitutional, sensible, and beneficial according to its lights, and for and in the best interests of the citizens of Scotland and of the United Kingdom. We must say to ourselves that there could be circumstances when the Assembly will not so act; it may well act in a way which would not bring the Bill that it seeks to pass before the Judicial Committee of the Privy Council, but which is nevertheless not in the public interest.
One may scratch around and find a number of examples which, in effect, are matters which are purely devolved under the terms of Schedule 10 but which nevertheless might be, in the opinion of the Secretary of State and indeed of Parliament, not in the public interest. One example that immediately springs to mind is if the Assembly proposed a far-reaching and swingeing change in the criminal law. We have only to think of what is happening at the moment in Europe in relation to the Isle of Man and its habit of birching young men in certain circumstances.
I do not know whether, for instance, the Scottish Assembly would reintroduce corporal punishment. I think that it certainly would have the power to do so, unless I am mistaken. I am sure that the noble and learned Lord will pull me up if I am wrong. I think that the Scottish Assembly would be quite entitled to restore, as I said on Second Reading, corporal punishment or capital punish- 1628 meat. That is a situation which Parliament at Westminster might well find was intolerable. I do not know. It might, I suppose, be held to be against our international obligations, but I think that is rather far-fetched. What is to happen? What is the Secretary of State to do about that? When I introduced one Amendment in this Committee some days ago, I mentioned the word "ping-pone". I was ill-advised to use that phrase. It resulted in a debate which had little to do with the Amendment but a lot to do with the powers and duties of the respective legislatures.
This is what I foresee. If there is no provision such as is contained in Clause 35, that would be the only action that the United Kingdom Parliament could take. If we continue to use my example—it may not be a very good one, but it is the only one I can think of on my feet—the United Kingdom Parliament could say, "No, you will not restore corporal punishment: notwithstanding that it is a devolved matter, the sovereignty of Westminster is such that you will not restore it." The result of that would be that either the Scottish Assembly would have, as it were, to "re-pass" its Bill, which again it would be entitled to do, or it would accept the position.
In either case, it would not be satisfactory and it would not be for good relations between the two legislatures. In those circumstances, it seems that something like Clause 35 would be beneficial but I think it would be expedient—and I use the word—for the Secretary of State to be able to move in a situation like this although the Bill passed by the Assembly is perfectly proper in that it does not affect a reserved matter. That is the second limb of the argument.
The Third Amendment which is of consequence is No. 132, where the word "may" in line 30 is deleted and for that is substituted the word "shall". We say here that, if the situation is such that the Secretary of State is satisfied in the way I have previously outlined, it is not the case that he,may lay the Bill before Parliament",but,he shall lay the Bill before Parliament",for its consideration. I think that is something which may well commend 1629 itself to the Committee. It takes away the discretion and it might take the political heat out of the situation because it might well be that the Secretary of State would consider the Bill was odious —and I use that word in its political sense—because, politically speaking, he did not want to lay it before Parliament. We have there taken away the discretion of the Secretary of State.
Then we come to the final Amendment. It enjoins the Secretary of State to,lay the Bill before Parliament together with a statement that in his opinion it ought not to be submitted to Her Majesty in Council or (b) a statement of the amendments necessary in his opinion to correct the defect in the Bill".It might be that one had a large Bill, perhaps a Criminal Justice Bill. Many of the provisions might be sensible and would not cause any offence—if I may use the word—to Her Majesty's Government at Westminster. There might be only one or two provisions, clauses or even subsections in the Bill which were complained about. In those circumstances, it seemed to us that the last part of Amendment No. 134 would, as it were, enable the Scottish Assembly to cure the defect comparatively quickly—and, dare I say, comparatively painlessly—without having, for the purposes of its Bill, to go back to square one.
I have spent a little time in outlining Amendments Nos. 129 to 134 which my noble friend and I have tabled. Of course, there are a great many other arguments to do with this clause—for example, whether there should be a clause at all—but I have tried to confine myself to this first part of the argument which seems to fall neatly into these Amendments. I beg to move.
§ The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Lord Greenwood of Rossendale)
It may be for the convenience of your Lordships if we debate with this Amendment Amendments Nos. 130 to 134, as suggested by the noble Lord.
§ 3.34 p.m.
§ Lord BROWN
I have not been able to be present at all stages of the Committee debate, but it struck me that a number of Amendments moved have displayed a 1630 rather profound lack of confidence in the future behaviour of the Assembly if and when it is set up. It strikes me that these are in the form of self-fulfilling prophecies. If in a business organisation you doubt the sense of responsibility of your employees and design rules and procedures based on that lack of confidence, some psychologists have noted that you probably generate the very behaviour for which you are legislating. A lot of the Amendments seem to have this character.
I should like to ask the mover of the Amendment a very direct question—not as an attack on the Amendment but because I want to understand it better. Would it not in fact be a result of this Amendment that the Secretary of State would be placed in a position where, on the basis of his own opinion, he could override any legislative act of the Assembly or seek to have it overridden by Parliament? Is that not a straight result of this series of Amendments?
§ The Earl of MANSFIELD
I think the answer is yes and no; no, because he could not, and yes because in any event he could since this Parliament is always sovereign. It is just shortening the procedure.
§ Lord BROWN
May I put it another way? Is it not a fact that if in the opinion of the Secretary of State something as passed by the Assembly is not appropriate, he can at least insist that Parliament itself looks at it, and whether or not the legislative act of the Assembly invaded the reserved area Parliament would then have the right to take away from the Assembly the legislative right which other clauses of the Bill have apparently given?
§ The Earl of MANSFIELD
Yes. That is putting the matter much too baldly, which I am sure that the noble Lord would not seek to do. It would be quite an unfair expression of how the Secretary of State would act, but within those terms 1 agree with the noble Lord.
§ Lord MOTTISTONE
I should like to clarify one small point in the Amendment. It seems to me that the noble Earl is missing out the subsection about enactment not being in the public interest. 1631 I think I heard him say something about it, but I did not hear it clearly.
§ The Earl of MANSFIELD
I really cannot repeat myself. I hope I am not being offensive to my noble friend. He could look at it in Hansard tomorrow. I am beginning to regret that I tried to save the time of the Committee by, as it were, moving all these Amendments en bloc. I think I have been rather foolish.
§ Lord DRUMALBYN
May I ask a question of the noble and learned Lord as to the construction that would be put on the words,the enactment of that provision would not be in the public interest"?As I understand it the change of the word "and" to "or" might make a difference in the construction of what is in the public interest. In other words, it is, so to speak, changing the venue from Scotland alone to the United Kingdom because the Secretary of State for Scotland is the United Kingdom Minister.
§ Lord HARMAR-NICHOLLS
I do not think the comments of the noble Lord, Lord Brown, really reflected what would be the view of businessmen. The point he put to my noble friend was that if you are giving the impression that the Assembly would not be responsible and would not do things objectively and impartially, it might well undermine its powers. He said that in business you would not do that because it would foul the atmosphere. But in business we do do that, and the noble Lord knows it. When one puts conditions down an accountant has to check, and somebody else has to check on that accountant. You have to set down your framework on the basis that there are cheats about.
If people are handling money in my business, then I want to put them in a position where they can feel that the framework that I have created is safe enough to prevent them from being falsely accused at any time. Therefore, I think that I understand what the noble Lord, Lord Brown, had in mind, but it is not true that businessmen do not put up a framework because the people who have to work within that framework may feel insulted.
1632 In this particular clause we come across something that is quite vital. The Assembly may pass laws or commit acts which will affect not only Scotland, which is the object of the Bill, but the United Kingdom. In order to provide protection as regards them being able to alter the laws of the United Kingdom, this Amendment is being inserted as a safeguard.
The words that are contained in the Bill at present are not all that bad. I read with great care the debate that took place on this matter in the other place. However, I think that the alternative words which have been put forward by my noble friend are better, set the case more clearly and make it easier for the provision to be administered later.
The reason why I prefer the clear words of my noble friend to the ones contained in the Bill is that the safeguard is supposed to be that regulations must be laid and affirmed. Those of us who have had some experience as regards the affirmation of a regulation know that that puts too much power in the hands of the Whips. They are able to get things through without the matter being properly discussed and without being able to amend it.
Therefore, I rose only because 1 should not like to have it on record that the noble Lord, Lord Brown, was reflecting the reaction of normal business houses as I know them, because frankly I do not think that that is so. In my view, the words of my noble friend are clearer, better and more likely to give satisfaction when they are passing matters which are not within their full power—reserve matters, which affect the United Kingdom. It would be better if the words suggested by my noble friend were included in the Bill.
§ Lord STRABOLGI
My Lords, in order to hear the Statement at present being made in another place, I beg to move that the House do now resume.
§ Moved, accordingly, and, on question, Motion agreed to.
§ House resumed.