LORDS AMENDMENT (Hansard, 24 July 1978)

§ The LORD CHANCELLOR
My Lords, I beg to move that this House doth not insist on their Amendment No. 61, to which the Commons have disagreed for the Reason numbered 62. We are at risk of making legislative provision which may be intended to protect the individual but which in reality would cause great confusion in the realm of constitutional law and would not, incidentally, add protection to the rights of the individual.
719 It is an interesting paradox that the guillotine fell in the other place just as the Attorney-General was elaborating on exactly what was wrong with the Amendment, so that it will fall to me to elaborate a little. The Amendment purports to do two things: to give the individual certain rights to sue, and to provide for a coercive remedy against the Welsh Assembly. On rights to sue, the Attorney General referred to the need to make an order under the Crown Proceedings Act 1947, and gave an undertaking that such an order would be made so as to operate as soon as the Assembly came into being; that is, immediately after the first Assembly election. Some Members of the other place inferred from this that the rights of the individual against the Welsh Assembly would be non-existent until the order was made. They therefore thought it right to make provision in the Bill itself as a guarantee for the individual in that interim period.
Those who thought that the individual would be left in the air without remedy have overlooked Section 17(3) of the Crown Proceedings Act, which reads: (3) Civil proceedings against the Crown shall be instituted against the appropriate authorised Government department, or, if none of the authorised Government departments is appropriate or the person instituting the proceedings has any reasonable doubt whether any and if so which of those departments is appropriate, against the Attorney General ". The Welsh Assembly is taking over functions of the Crown; and the Government did not contemplate for one moment that remedies would not be available against it as much as against any Minister.
As I say, the existence of the right to proceed against the Attorney-General as a front-man for the Welsh Assembly would exist under the existing provisions of the Crown Proceedings Act. We do not think it desirable that that arrangement should continue indefinitely. That is why we have undertaken to make an order applying the Crown Proceedings Act to the Welsh Assembly as it applies to a Minister of the Crown. The interim period is, I submit, covered. That was properly causing concern until—as I hope the position is now—the matter was made clear.
An order made under the Crown Proceedings Act, applying its provisions to the Northern Ireland Administration, 720 was made in 1948 and shows the sort of provision which will be required and which will be introduced. Therefore this contention that provision is required in the Bill in order to confer rights on the individual does not really stand analysis. Moreover, the Amendment we are now discussing does not fit into the scheme of the Crown Proceedings Act. It limits, indeed, in some ways the individual's rights, and in other ways it tries to give him rights which are not available to an individual proceeding against a Minister of the Crown. So the Amendment would have serious consequences for the intended order applying the Crown Proceedings Act. The powers of Clause 78(2) do not extend to amending or repealing provisions of the Wales Bill, when it becomes an Act, and therefore the intended order could only make provision consistent with this Amendment which itself is inconsistent with the Crown Proceedings Act. So I fear that the Amendment, so far from protecting the rights of the individual, would create a mess which the Government would be powerless to clean up.
There remains a second point of objection to the Amendment: that it includes provision for a coercive remedy against the Crown. It is settled constitutional practice that no coercive remedies do lie against the Crown, because it would then be a case of the Crown enforcing against the Crown, which is a logical absurdity. Sections 21(2)(a) and 25(4) of the Crown Proceedings Act illustrate that, and in my submission it is an absurdity we should avoid. In the light of my explanation and of the consequence of proceeding with the Amendment—that, so far from protecting the individual, it could in reality do damage—I hope that the Amendment will not be pressed.

§ Baroness ELLES
My Lords, I am grateful to the noble and learned Lord for that clarification. We have had to wait rather a long time, going through the procedures of the Bill, before knowing what the Government's view of the position is. The noble and learned Lord I mentioned Section 17(3) of the Crown 721 Proceedings Act, and said that an individual could in fact take action against the Attorney-General until that Act is itself amended to include the Welsh Assembly as one of the Government Departments or as a body carrying out the functions of the Crown, against which an individual could bring an action.
Before we conclude our discussion on this Amendment, I wonder whether the noble and learned Lord could say what remedies would be available to an individual in that case. Would he only be able to have a declaration from the Attorney-General or would he be able to start an action for damages against the Attorney-General, for instance, where there was a case if negligence or something of that kind? Clearly, when an individual is enabled to sue the Crown under the Crown Proceedings Act, then he would have the right to a certain number of remedies, including a claim for damages. But, as I understand it, if it were against the Attorney-General, he may only have the right of a declaration.

§ The LORD CHANCELLOR
My Lords, the answer is that he would have the same rights as the citizen has now against a Minister, by virtue of the provisions of the Crown Proceeding Act, which would cover the whole range of those remedies.

§ Baroness ELLES
My Lords, I am very grateful to the noble and learned Lord for that reply. In view of his explanation, we shall not insist on our Amendment.