§ 25 Clause 19, page 8, line 14, after ("Assembly") insert ("or is not compatible with any enforceable Community right, power, liability, obligation or restriction (as defined in section 2(1) of the European Communities Act 1972)")
§ 26 Clause 19, page 8, line 15, after ("competence") insert ("or is so compatible, as the case may be,")
§ 27 Clause 19, page 8, line 19, after ("obligations") insert ("other than an enforceable Community obligation")
§ 28 Clause 19, page 8, line 29, at beginning insert ("A reference under this section shall be deemed to be legal proceedings and")
§ 29 Clause 19, page 8, line 32, after ("Assembly") insert ("or is not compatible with any enforceable Community right, power, liability, obligation or restriction")
§ The Commons disagreed to the above Amendments for the following Reason:
§ 30 Because the decisions concerned must be taken by Ministers of the Crown.
§ 5.7 p.m.
Viscount COLVILLE of CULROSSMy Lords, this raises rather a different matter and it is one which we have really only satisfactorily discussed in Parliament on the Report stage of the Bill in this House. It was rather after 10 o'clock on the 7th June, and the noble and learned Lord, Lord McCluskey, and I had a single-handed duel upon the matter. Nobody else joined in, the matter was not really discussed in that sort of fine detail in another place at all when the Bill was first before them, nor on Committee here, and the Amendments which your Lordships made on Report were simply not discussed at all when the matter went back to another place. Therefore we have a situation where I am far from satisfied that justice has been done to the arguments.
468 The basic material for discussion is this: that under the system of the European Treaties there are certain directions and regulations and other material that issues from the European institutions, of two sorts. There are those which say to the Governments of Member States, "You must enforce this legislation in your own States in whatever way you think fit and in accordance with whatever detail you think fit, and that is up to you, the Governments of the independent States, the Members of the Community".
Then there is another sort of pronouncement that issues from the institutions. It is this: "We are making laws which, without the Governments of the independent Member States doing anything further about it at all, are automatically made part of the law of each and every one of the independent States, so that in so far as they affect any individual, either by way of conferring upon him a right or an obligation or anything else, they are directly enforceable without further ado by the courts of each of the countries who are Members of the Community". These are two entirely different concepts and the Bill makes no attempt to distinguish between the two of them, and the Amendments which have come back from another place to us were my effort to try to make a logical distinction between the two of them.
The Amendments with which another place has disagreed have this effect. Where under the Bill (there is no dispute about this) an enactment by the Scottish Assembly does not confine itself to the powers which are granted to the Scottish Assembly under this Bill, then the Secretary of State—either because he is sure, or now that we have had some Amendments because from some source or another he has a doubt—may refer the issue as to whether the Scottish Assembly is within the powers of the Scotland Act to the Judicial Committee of the Privy Council, and they will decide and they will decide conclusively. That is, of course, because the question of whether or not a Scottish Assembly Bill is within the powers of the Bill which is now before your Lordships is a straight matter of judicial interpretation. There is no difficulty about this. Everybody accepts it; it is built into the Bill and it is so.
Now we have to consider the impact of the European dimension. The first of 469 the types of Directive or Regulation that come from the European institutions are not directly justiciable at all. I accept this; my Amendments, as I have put them down, accept this; your Lordships have all understood this and there is no dispute about it. If it is a matter that has to be dealt with by legislation in any of the Member States, including this country, of course it is for the Government to say when, how and in what way they will implement it. If there is some discrepancy between a Scottish Assembly Bill and a duty that has been laid upon the Government of this country by some emanation from the European institutions, it must be a matter of politics, political decision, how and when that should be implemented, and any discrepancy is, of course, something that politicians should deal with, as now appears in Clause 19(1)(b] of the Bill as it first arrived in this House.
However, there is the other material that comes from Europe. That is the sort that becomes automatically part of the law of this country quite regardless of anything that is done in Parliament here, either by way of primary legislation or subordinate legislation or executive action or anything else. It is just quite simply part of the law of the United Kingdom, England, Scotland, Wales and Northern Ireland, and nothing has to be done about it at all. I noted that the noble and learned Lord, Lord McCluskey, when he was dealing with this on Report stage, agreed with the noble and learned Lord, Lord Diplock, that this was a matter that was purely judicial, purely justiciable, and was of the same order of material as the decision as to whether a Scottish Assembly Bill was within the powers of the Scotland Act at all.
The effect of the Amendments which have come back from another place is to say, No, that last sort of material, although it is justiciable, shall not be dealt with by the courts, it is quite unsuitable for them; the only people who can deal with it are Ministers. The only people who can decide whether a Bill which has passed through the Scottish Assembly infringes the directly-applicable parts of the European law which are without further ado applicable to all citizens of this country are Ministers; it is nothing to do with the courts; the courts are quite unsuitable to 470 do it. There is the reason, in the Message that has come from another place, that Ministers must make this decision.
I am afraid that this is an occasion when the noble and learned Lord—and it must be the only occasion on which he did it in the whole of the passage of this Bill through this House—has actually misunderstood the case. I read very carefully what he said when this matter was before the House. It is at columns 1366 to 1370 of the Official Report of 7th June. He could not possibly have understood it, nor I think could another place if they have put down the Reason that we have before us for rejecting these Amendments.
Perhaps I can deal with the three matters which the noble and learned Lord put up by way of refutation of my argument last time. The first is a matter of drafting. I hope that on this occasion I have dealt with a slightly heavy handed reference to obligations and other such matters by putting down a rather more simplified reference to matters which under the European Communities Act can be recited comprehensively under the term of "enforceable rights". Secondly, I have, in the Amendments I am proposing we should put into the Bill instead of those which have been sent back, referred to the necessary overriding power of rulings from the European Court. So I trust that the drafting matter that was drawn to our attention by the noble and learned Lord has at least been repaired for the better, even if I have not yet got it quite right.
But there were two other matters that he drew to our attention. First, he said there were practical and political reasons why, if the Secretary of State thought that there was an incompatibility between a Scottish Assembly Bill and a directly enforceable right, it should be a matter for Ministers, and he referred, in column 1368, to the question of whether or not it would be more appropriate that a particular Community obligation should be implemented by Parliament instead of the Assembly. He said:
This could involve consideration of a variety of factors such as doubts as to the compatibility of the implementing measure proposed by the Assembly, questions whether implementing legislation is necessary at all, and the desirability of simultaneous and uniform implementation throughout the United Kingdom".471 Of course, that is right if you are dealing with matters which have to be implemented in this country by Government or Parliamentary intervention; that is absolutely correct. But it does not have any bearing at all upon directly enforceable rights and so on which come into the law of this country without any intervention by Parliament at all. There cannot be any political or practical implication in this at all, because all that is going to happen is that the European law will be applicable anyway; it will he applicable whether or not the Scottish Assembly Act is passed; it will be applicable whether or not it is sent to the Judicial Committee for decision; it will be applicable whether or not the Judicial Committee decides that the Scottish Assembly Bill is or is not compatible with those rights. They override everything. To the extent that those European laws have been imported into this country they override all forms of legislation, and to the extent that legislation passed by any institution in this country is inconsistent with them. according to the ruling in the Simmenthal case, our own domestic law shall not be applied by the courts.So it has got nothing to do with Parliament; it has got nothing to do with whether we implement it properly or simultaneously or consistently; it is automatically and already part of the law of this country. That is why it is a matter for the Judiciary rather than for the Ministers; it has got nothing to do with a political decision but is simply a matter of interpretation. So, my Lords, the whole basis of the reason why another place have sent this back is, I would respectfully and humbly say to them, misconceived. It is, of course, misconceived because they never had an opportunity to discuss it, and perhaps in a minor way because even the noble and learned Lord slipped momentarily in his own argument in this place.
There is one other argument he put forward; it might require time. That is quite true, because if the matter is to go to the Judicial Committee, then of course there is—under the Amendments which I successfully sought to persuade your Lordships to put into the Bill—the possibility that their Lordships sitting judicially will send it on to Luxembourg, and that could take some time.
472 However, let us consider for a moment where the balance of advantage lies. If the Secretary of State thinks that the Scottish Assembly Bill is unquestionably in conflict with a directly enforceable European Community right that has been granted to the public in this country, then he is, of course, under the Amendments that have come back from another place, entitled to submit this to the Judicial Committee. He can also do so if he is in doubt—if, for instance, Members of either House of Parliament suggest to him that that is so.
Where is the proper balance of public interest? These are not easy arguments for the courts. If the matter is taken up by the Attorney-General, the Lord Advocate or the Law Officers of the Crown before a Scottish Assembly Bill is presented for Royal Assent, this will be a matter that will be discussed by the courts and the arguments in front of them will be presented by the Law Officers. There will be no citizen involved, and rightly so, because these are matters of great public importance which ought to be attended to by the Law Officers of the Crown. If we leave it to Ministers and the Ministers get it wrong, it will not make any difference in the long run. Once the Scottish Assembly Bill has been wrongly given the Royal Assent, and it contains the seeds of its own distruction in that it does, in fact, conflict with the directly applicable European right, it will not stop the citizens of Scotland or any other part of the United Kingdom from taking the matter up in litigation. They will be able to do exactly the same as would have occurred before the Royal Assent under the Amendments that we inserted in this House, and, of course, this time unfortunately it will be the poor old citizen who has to pay for it. The mere fact that it is not challenged before Assent will not stop it being challenged afterwards. It will then merely be a matter for the citizen to take it up.
I think—and I believe that your Lordships when you supported the Amendments which I put down thought so too—that it would be right that, if there is either a conviction or a doubt on the part of the Secretary of State that this is so, he should see to it that this justiciable issue is dealt with by the courts. If it takes a certain length of time, it takes a 473 certain length of time. It will take exactly the same length of time whether it is discussed before the Royal Assent or after the Royal Assent. The only difference is that if it is discussed by the courts after the Royal Assent a number of people may have acted upon the Scottish Assembly Bill on the assumption that it is correct in law, whereas it will turn out, as it may be, afterwards, when the matter has been put to the court in Luxembourg, that it was not correct in law. In which case there will be all sorts of unscrambling of rights, obligations and duties which would otherwise never have occurred, and it would be done to the cost of the individual. I cannot help thinking that the question of time must be irrelevant in this connection.
If the Secretary of State has a genuine doubt or a genuine conviction he is not the person, as a politician, to make the decision as another place has suggested. It is by common accord a matter for the courts. It would be a matter for the courts sooner or later and I suggest that it should be sooner for the reasons which [...] have suggested.
I hope that in the corrections that I have now put forward to the Amendments that we sent to another place, we have a complete and satisfactory scheme which deals not only with the facts but—on the arguments that I have put forward—the objections put forward by the noble and learned Lord, Lord McCluskey. I beg to move.
§
Moved, That this House doth not insist on their Amendments Nos. 25 to 29 for the Reason numbered 30 but doth propose in lieu thereof—
Page 8, line 14, after ("Assembly") insert ("or is not compatible with an enforceable Community right (as defined in section 2(1) of the European Communities Act 1972)")
Page 8,line 15, after ("competence") insert ("or is so compatible, as the case may be")
Page 8,line 19, after ("obligations") insert ("other than an enforceable Community obligation")
Page 8,line 29, at beginning insert ("A reference under this section shall be deemed to be legal proceedings and")
Page 8,line 32, after ("Assembly") insert ("or, subject to any ruling by the Court of Justice of the European Communities, is not compatible with any enforceable Community right").
—(Viscount Colville of Culross.)
§ Lord McCLUSKEYMy Lords, I always look round in vain to see whether someone else will join in this solitary argument that we have been conducting across the Table for so many months. I shall try to explain that the Government's intention, in terms of policy, is that all questions relating to the implementation of international obligations are to be kept firmly and unambiguously under ministerial control. As I understand it, there is no disagreement between the noble Viscount and myself as regards that. Indeed, if I point to the difference, he would not say that it is really relevant to the particular matter that he has just sought to make clear.
However, he has singled out the special case where we are talking about an obligation which is not imposed upon the Member State for fulfilment by it in whatever form it is provided for, but which is imposed directly by the Community. He has reminded us that that kind of law—directly applicable Community law—is different because it is already law within the United Kingdom, with the result that the questions of compatibility between it on the one hand, and the contents of an Assembly Bill on the other, would involve a matter of law (a justiciable issue) of the same character as the justiciable issue that arises on matters of vires, if we are considering a justiciable issue in that sense. I have acknowledged that in the past, and I acknowledge it again.
The added feature here is that if we were to accept the Amendments—which are verbally different but not in substance different from the ones that went to the other place, although I acknowledge that the drafting is improved—this type of question would or could find its way to the European Court of Justice. There are a number of reasons why we are opposed to that proposal and the contents of the Amendments. In the first place, in our view the argument put forward by the noble Viscount does not fit in with the realities of Community law. To begin with, the jurisdiction of the European Court of Justice does not extend to advising whether national legislation, or national legislation in the form of Bills—that is to say in draft—is or is not compatible with Community legislation. I have asked before—but I do not think I have 475 yet received an answer—for the noble Viscount or certainly someone to point out which particular article of which treaty (presumably the Treaty of Rome) gives the European Court of Justice jurisdiction to decide that kind of question—that is, the question of compatibility that I have just described.
The task of the European Court is to advise on Community law. If, therefore, the Secretary of State were to conclude, after receiving such advice as was available to him from Law Officers and, indeed, his own legal advisors, that an Assembly Bill was plainly, or even arguably, incompatible with such an obligation, there would be no Community reason for insisting on a reference to the European Court. All the Community would be concerned to say is that if there is a question of Community law to be interpreted, that should go to the Court. Therefore, to say that compatibility involves justiciability and so should be referred to the Judicial Committee and thence to the European Court is, in our view, an over-simplification.
There is another aspect. The argument which the noble Viscount has advanced today seems to me to proceed upon the assumption that the only question likely to arise is that of compatibility. But there is another question and that is whether or not the Community obligation is directly applicable. I think that he used the words "quite simply" in his argument, but the question is not always a "quite simple" question. It may be a quite difficult question and it may well have a political dimension.
The effect of this group of Amendments would be to force the Government at a very early stage, every time the Assembly introduced a Bill, to take a definite view on what could be a difficult question with political dimensions—namely, whether or not some article in a directive or in some other Community instrument created a directly applicable Community obligation. So it could convert into apparently a legal question for decision by lawyers what is, in part, a political question, certainly a question with political implications. So I believe that there will be, or could be, in these cases a mixture of political and legal factors at work. That is precisely why the Government say that 476 it could create a considerable distortion if one erected a system, such as these Amendments erect, in order to settle all these questions at a purely legal level.
As your Lordships know, at the present time when a Secretary of State, a Minister of the Crown, has to decide a question which involves both legal and political dimensions, he will seek the advice of lawyers, including—if it is the right kind of question—the advice of the Law Officers. Indeed, under the Bill as it came to us from another place, the Secretary of State would take into account the whole range of political and legal questions which seem to arise. On the legal questions one would expect that, in accordance with the normal practice, he would act upon the advice received from the Law Officers. There is no question of acting upon an arbitrary view of the law.
Then, so far as his answer to these questions allows, he will frame his political judgment, or he will decide the political dimension of it. That, I believe, is right and sensible. He is not compelled to act in what I would conceive to be an artificial way and submit this question for decision to a court. When I say "this question" I mean either the question of compatibility or the question of direct enforceability; or, indeed, the one question with both these dimensions to it.
But there is one other matter to which I want to draw attention. In 1972, when Parliament passed the European Communities Act, it did not make any such provision. In 1972 everyone was quite clear that there were two kinds of obligations: those imposed upon the Member State for implementation by the Member State, and those directly imposed, because that is quite plain from the Treaty. That matter was recognised and in 1972 no attempt was made by Parliament to refer to a court of law the kind of issue that these Amendments would refer to a court of law; namely, whether or not proposed legislation, whether of the sovereign Parliament itself or of some subordinate legislature or legislator, through making Instruments, Orders in Council or whatever, ought to be referred to the European Court if there was a possibility that it might be incompatible with what was thought to be, or might be, 477 the directly applicable European obligation.
We believe that matters should continue following devolution and we should not set this precedent in the devolution field, which we did not put into the European Communities Act in 1972. I accept that this fine point has not been debated in the way in which the noble Viscount and I have debated it in this House, simply because we have confined ourselves to it since we identified that that was precisely the point of difference. It was not debated in quite that way in another place. But the other place did debate a new clause reflecting a related purpose to these Amendments, and that clause was rejected on a Division. Indeed, on this occasion, too, when they came to consider the Amendments proposed by the noble Viscount and supported by this House, the other place rejected that approach by a majority of 45.
I accept that some issues are likely to go back from here to the other place following upon the proceedings, which I trust will end today. But should this be one of them, the matter has been fully considered; the noble Viscount knows that we have taken the best advice we can take upon it, as well as considering the matter ourselves. In political terms, by a majority of 45 the other place has rejected the Amendments of exactly the same character. I ask the noble Viscount to consider whether or not he wants to add this to the matters that go back to the other place, or whether he does not accept that this is now the time to bring the matter to an end and not to press the new Amendment.
§ 5.35 p.m.
Viscount COLVILLE of CULROSSMy Lords, I commiserate with the noble and learned Lord, Lord McCluskey, that nobody will join in these discussions between the two of us. This has been the trouble all along. I also accept from him that it may well be, for the reasons which I have already given, that it will not make a material difference whether we put these Amendments in the Bill in this form or whether we simply leave the matter to be litigated after the Scottish Assembly Act has got on to the Statute Book. It would, in fact, have exactly the 478 same effect, whichever way it occurred, except for who has to pay the bill. That was really the message that I was trying to get over to the noble and learned Lord.
Perhaps I could answer the three points that he has made because, if I may respectfully say so, he has directed his mind much more accurately to my argument today than he did on 7th June. First, as to the jurisdiction of the European Court, the purpose of putting into the Bill that a consideration of the vires of a Scottish Assembly Bill in this context is to be litigation, which is one of the Amendments that your Lordships accepted before, would, I think, bring it straight within the provisions of the Treaty, which allows the European Court to consider, on a reference to it, and to give a ruling on a matter which is being litigated in one of the Member States.
It was exactly in order to provide the necessary foundation for such an argument that an Amendment was tabled. I should think that it would be most unlikely that the European Court would refuse to exercise its jurisdiction when the Parliament of one of the Member States had said that for these exact purposes it was treating a matter in dispute between Law Officers and the Crown of two different parts of the country as being litigation before the courts here. So I should have thought that the Amendments that I have put forward really deal with that, and it is fanciful to suppose that the European Court, which is not a blinkered body in any way, would refuse jurisdiction on those grounds.
§ Lord McCLUSKEYMy Lords, if the noble Viscount would allow me, before he leaves this point I did ask him whether he could tell me which article of the Treaty he had in mind. What he has told me is what we all know, that all courts are greedy to extend their jurisdiction, and the European Court is no exception. But what I want to know from him is what article of the Treaty he says confers upon the European Court jurisdiction to make that kind of decision.
Viscount COLVILLE of CULROSSMy Lords, from memory it is Article 177, but I do not have my copy of the Treaty with me. I see that the noble and learned Lord has loaned me his copy. I am 479 obliged to him. There are, in fact, two articles whereby the Court can deal with a complaint on an individual matter. One is Article 177 and the other I have now forgotten, but I did hear a lecture upon this in Luxembourg. I think that I would require notice of the question but I believe that in fact, the Article is 177. I do not think that this would be a practical difficulty.
I turn to the second point which the noble and learned Lord raised, the question whether or not the obligation or right is, after all, to be found to be directly applicable. That is, of course, a matter which has political implications, but it is not to be decided as a matter of politics by the European Court. There is great distinction between this. There have been a number of occasions when national legislation—and I am thinking particularly of Italian tax legislation—has been held by the European Court to be inconsistent with a directly applicable right. Of course, that carries with it political implications in Italy, and if the same thing happened here, it would carry with it political implications in this country.
But the question whether or not it is a conflict on a directly applicable measure and whether that measure is directly applicable, is a jurisprudential matter and not a political one. That is what the Court has to decide and that, in fact, is what, as I am sure the noble and learned Lord is well aware, the Court does decide. It does not decide it upon political grounds. It decides it after argument on an interpretation of and implications drawn from the Treaty. Therefore, again there is no difficulty here, because the decision would not be made on political grounds even if it did, on some occasions, have unfortunate political implications which had to be dealt with. That is too had. Decisions of courts of all types have that effect.
Thirdly, the noble and learned Lord rightly said that when the European Communities Act was passed in 1972 it did not provide for prior inquiry as to conformity with this sort of European law prior to any Act we have passed since that date going on the Statute Book. That is true, but it is dependent simply upon this: so far as Westminster is concerned, we have no written Constitution, and it would not be very easy to 480 provide, in that sort of legislation or any other sort of legislation—at any rate it has never been previously provided, nor has there been occasion to provide it—for any such jurisdiction to be created.
But in the Scotland Bill we are setting up a completely new creature. We are setting up a legislative Assembly which I suppose in some respects is like the Northern Ireland institutions that have been set up, and most of that legislation preceded this particular problem. But it is a legislative Assembly which is built within a constitutional and legislative framework. It has its powers exactly prescribed; all its powers are justiciable in the courts in this country—each bit of them. There is really no similarity between the system that we are proposing under this Bill for Scotland which, in itself, provides for examination of the vires of a Bill on internal matters by the Judicial Committee, and the system that the Westminster Parliament operates where of course no such thing happens.
There is no inconsistency in adding to the Scottish system a judicial inquiry into consistency with European directly applicable law. It does not bring about any possible impact upon what might happen in this completely independent and sovereign Parliament, which is not bound by any legalistic or legislative provisions at all. I do not think that we should be afraid of creating a precedent in that way, because the two situations are quite different.
I have answered the three points that the noble and learned Lord made, and we therefore have to decide what to do. On balance, I would suggest o your Lordships that it might be better, if the Government will not think again and will not concede this point, not to press the matter. I say that simply for the reason that if there is a conflict, as I have explained to the House, it will be dealt with. It is not going to make any difference except for whoever pays for it. I am simply sorry that the Government are going to put the burden of paying for it on the pocket of the citizen, when they have the opportunity now, by accepting these Amendments, of seeing that the State pays for it in a realm where the State should properly pay for it. But if the noble and learned Lord will not think again about these things, then I think I 481 had better accept this decision and we shall see what happens. It probably will not happen very often, but it is going to be very expensive for somebody when it does. I thank the noble and learned Lord for his further thought, but in those circumstances I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Motion agreed to.