HL Deb 07 June 1978 vol 392 cc1313-77

Further considered on Report.

Clause 4 [Elections to Assembly]:

Lord McCLUSKEY moved Amendment No. 23:

Page 3, line 30, after ("date") insert— ("(i) have their names on such parts of the register of local government electors as relate to the Assembly constituency; and (ii)")

The noble and learned Lord said: My Lords, I beg to move Amendment No. 23 standing in the name of my noble and learned friend the Lord Chancellor. This Amendment seeks to correct a flaw in the Bill which was detected by the noble Lord, Lord Gray, during Committee and which the Government agreed to return to on Report. Clause 4, as it stands, makes it possible for a Peer living in a local government area which straddles two Assembly constituencies to choose in which Assembly constituency to cast his vote.

As was made clear in the Committee debate on this point, there is no possibility of a Peer being able to vote twice because it is the Government's intention in the order made under subsection (3) to attract Section 48 of the Representation of the People Act 1949, which makes plural voting an offence. The Amendment would correct the flaw by providing that Peers who are entitled to vote in any Assembly constituency shall be those who have their name on the parts of the register of local government electors which relate to that Assembly constituency. Before I leave the matter, may I pay tribute to the noble Lord, Lord Gray, for drawing our attention to this point and enabling us to improve the Bill in this respect. My Lords, I beg to move.


My Lords, I should like to thank the Government, and in particular the noble and learned Lord, Lord McCluskey, for having taken this step to meet the point which I made at Committee stage and to which he has referred. I thank him also for the kindly remarks he has made, for the courteous reception he gave to the Amendment at Committee stage and for the helpful letter which in the interval he has written to me. This seems to me to indicate that this Amendment meets the principal point that I made in Committee as nearly as it is possible to meet it in the rather strange circumstances with which we are faced.

Clause 5 [By-elections]:

8.4 p.m.

Lord GRAY moved Amendment No. 24: Page 4, line 36, leave out subsection (5).

The noble Lord said: My Lords, I beg to move Amendment No. 24 on behalf of my noble friend, Lord Drumalbyn, who has asked me to apologise for his unavoidable absence from the House this evening. Perhaps it would be convenient to your Lordships if I were also to speak to Amendment No. 25 and to Amendment No. 26A, which is on the additional Amendment List.

The purpose of these Amendments which my noble friend has set down is in part to meet points which were made by my noble friends Lord Campbell of Croy and Lord Tranmire, and also by the noble Lord, Lord Monson, in Committee. They suggested it would be better if there was a separate clause to deal with the method of filling a vacancy in the Assembly caused by the death or withdrawal of an additional Member between elections under the system of proportional representation in the Bill. The noble Lords who drew attention to this point, pointed out that the description of Clause 5 in the rubric, "By-elections", was not appropriate to the filling of vacancies among additional Members, as it is not a question of election and the vacancy is to be filled by the first willing candidate of the party of the vacating Member on the electoral region priority list of the same Party at the last election. My noble friend has attempted to meet their wishes by, in effect, transferring Clause 5(5) in the Bill to a new clause and making the necessary amendments to it. My noble friend, I know, feels that it might have been easier to change the rubric to such wording as "Filling vacancies among Members" and dealing with both by-elections and vacancies among additional Members in the same clause. However, he has decided to fall in with the wishes of those who expressed views.

Another purpose is to meet the point which was made by my noble friend Lord Tranmire concerning the date on which the person who fills a vacancy in this way will become a Member of the Assembly. That is the date corresponding to the day on which the person is elected in the by-election. Subsection (2) of the new clause provides that the date shall be the day on which the presiding officer of the Assembly certifies that the relevant standing order relating to the filling of such vacancies for additional Members has been complied with, and that is to be the date on which the term of office of the new Member is to begin.

It is possible, my noble friend has advised me, that the new clause may be criticised on the grounds that it contains no provision corresponding to Clause 5(4), and so gives, some might suggest, an unfair advantage to additional Members over constituency Members. However, my noble friend Lord Drumalbyn feels that it seems reasonable in the case of additional Members to allow the practice of local authorities here, but were strong objections to be taken he has authorised me to say that he would undertake to introduce a subsection corresponding to Clause 5(4) when we get to Third Reading. I beg to move.


My Lords, I think that the Government, like the noble Lord, Lord Drumalbyn, are not entirely convinced that it is essential to split Clause 5 in the way proposed, but other noble Lords thought otherwise and the Government would not seek to oppose that. Accordingly, this Amendment would not be opposed by me. There is one point that occurs to me when I look at the wording here. It may he quite unfair to ask the noble Lord, Lord Gray, to deal with it at short notice, though I may be quite misguided. It is not unknown for Members of an elected Assembly to change their Party allegiance after they have become Members of the Assembly. If in fact someone decided to cross the floor, being himself one of these additional Members, and changed his Party, and then resigned his seat, would the seat go to the Party which he had left or the Party which he had joined? Perhaps the noble Lord, Lord Gray, thinks that that is a fast ball at this time of night and he may wish to reflect upon it.


My Lords, with the leave of the House, I shall certainly reflect upon it or perhaps invite my noble friend Lord Drumalbyn to reflect upon it. Off the cuff, I should have thought that the answer was that it would tie back to the Party because the man came from the particular regional list of that Party. However, it is rather similar to the type of point which I might make myself and I am therefore prepared to allow the noble and learned Lord, Lord McCluskey, the benefit of the doubt on this matter. I beg to move.


My Lords, before the noble Lord, Lord Gray, sits down may I say that he could have paid me no greater compliment!

Lord GRAY moved Amendment No. 25: Page 5, line 1, after ("this") insert ("and the next following").

Lord GRAY moved Amendment No. 26A: After Clause 5, insert the following new clause—

Filling of vacancies among additional members

(".—(1) Where the seat of an additional member of an Assembly is vacated the vacancy shall be filled by the first willing candidate of the party of the vacating member on the relevant party priority list as prepared at the preceding ordinary election under the provisions of Part V of Schedule 1 to this Act, such candidate not already being a member and having indicated his willingness to fill the vacancy in such manner as may be required by the standing orders of the Assembly.

(2) A vacancy occurring under this section shall be deemed to have been filled on the day on which the presiding officer certifies that the standing order relating to the filling of such vacancies has been complied with and the member shall be deemed to have been elected on that day.").

Clause 7 [Procedure of Assembly]:

Lord GRAY moved Amendment No. 27: Page 5, line 12, at end insert ("and the directions shall include provision for the election of a presiding officer from among the members of the Assembly").

The noble Lord said: My Lords, I am back on my own ground now and I beg to move Amendment No. 27. I believe that it might be of convenience to the House were I also to speak to Amendments Nos. 28 and 75. Noble Lords will find Amendment No. 75 on page 10 of the Marshalled List. It consists of a new clause, although some of the words therein are already in another part of the Bill.

I am concerned with what is to be included in the Standing Orders of the Assembly. By means of my three Amendments, I am seeking to bring together those matters which the Bill specifically says must be included in the Standing Orders. I hope that what I propose is not merely logical but in keeping with the basic format of the Bill as structured by the draftsman. Perhaps it would be best if dealt first with the general character of the change I recommend and then went on to treat the detail of the individual Amendments in so far as it may be necessary for me to do so.

At the top of page 13 of the Bill is the italicised heading, "Standing orders—particular provisions." Under that heading are grouped six clauses, each dealing with a particular provision of Standing Orders that are to be made by the Assembly or, in certain cases, may be made by the Assembly. Regardless of what views one may entertain as to what should or should not be cited in the Bill as subjects for inclusion in the Assembly Standing Orders, there is one subject which the Government themselves stipulate for inclusion that has strayed from its logical position in the Bill—that is, where one would expect to find it on page 13. The item in question concerns a most important matter—namely, the Assembly's presiding officer.

Clause 7(2) of the Bill contains exactly what one would have expected to find in the part of the Bill which commences on page 13 and to which I have referred. There is no doubt that subsection (2) is what the Bill, at page 13, terms a "particular provision". It is patently so by its very nature. Furthermore, it even opens with the same wording as Clauses 24, 25, 26 and 28, and, with the exception that Clauses 27 and 29 are permissive as opposed to mandatory, the same wording as those clauses also.

Amendments Nos. 27, 28 and 75 seek to place the Standing Order requirement dealing with the Assembly's presiding officer in that part of the Bill which deals with the Standing Orders. I should perhaps explain why we should effect the change in the particular way that my Amendments propose because it might have been more logical to have adopted the format which one finds in the Wales Bill where there is a part of the Bill headed "Conduct of business" and which includes not only the Standing Order provisions, but the provisions which in the Scotland Bill comprise Clauses 6 and 7. I admit to having been tempted to rearrange it in that way. However, although I have not divined—at least I do not think that I have divined—the draftsman's purpose in placing the subject matter of Clauses 6 and 7 on page 5, sandwiched between a clause dealing with by-elections and a clause concerned with disqualification from the Assembly, I am prepared to suppose that there is a reason for referring to the first meeting of the Assembly (Clause 6) and the basic procedure (Clause 7(1)) at the point of the Bill where the draftsman has placed them. On the other hand, I can see no reason for spelling out the particular provision relating to the presiding officer at this point. It certainly has not been done to specify the existence of the presiding officer before a reference is made to him because, in fact, he is already referred to in Clause 5.

I have thought it prudent to extend Clause 7(1) as I suggest in my Amendment No. 27, since it could well be argued that the presiding officer is so central to the procedural scheme for the Assembly that it is appropriate that he should be referred to here and that is perhaps particularly so in regard to the directions which the Secretary of State is required to make by Clause 7(1). Amendment No. 28 simply removes subsection (2) from Clause 7, but with Amendment No. 75 I reintroduce that subsection in what I have already argued is the right place for it, on page 13 of the Bill.

Subsection (1) of the new clause proposed by Amendment No. 75 reproduces exactly the words that my Amendment No. 28 removes from their present position in the Bill. Here I have departed from the broad purpose, or the prime purpose, of my scheme, in that in paragraph (b) of my proposed new clause 1 have extended the wording to require that the Standing Orders shall, in fact, also deal with the appointment or election of a deputy presiding officer or deputy presiding officers. I think that this was a reasonable and proper thing to do. Certainly in the context of the other mandatory provisions in the Standing Orders clauses it would seem appropriate as they are comprehensive.

I have in no way sought to lay down in detail anything about what those Standing Orders may say. I think that it rounds out the clause in the appropriate fashion. It is obviously a matter of opinion here. We had considerable discussion in Committee as to how much should be spelled out in the Standing Order clauses. I think that what I suggest here is sensible and would place the provisions to which I have referred in the order, sequence and position in which anyone studying the Bill would expect to find them. I beg to move.


My Lords, let me say at once that the Government agree with the spirit, if not the letter, of these Amendments. Perhaps I could direct my remarks initially to Amendments Nos. 27 and 28. We fully accept that the directions which the Secretary of State will give under Clause 7 must include provision for the election of a presiding officer and his tenure of office. The object of the directions is to enable the Assembly to get started on its business; clearly, it cannot properly do this without a presiding officer. Therefore, I can give a firm assurance that this point will be covered in the directions; in realistic terms it has to be included. However, we think that it is unnecessary to provide for this specifically in the Bill.

However, the noble Lord, Lord Gray, who kindly indicated to me at an earlier stage in this afternoon's proceedings that he might seek to expand on a number of his points, poses a question which clearly I should answer. Perhaps I might encapsulate the question. It seems to me that he asked why the provision relating to Standing Orders for the presiding officer, found at Clause 7(2), does not appear together with the other Standing Order provisions in Clause 24. The noble Lord himself, of course, acknowledged that essentially this is a matter for the draftsmen. Indeed, there is a question of opinion about this. In practice, of course, a provision has the same effect, no matter where it appears in the Bill.

In this particular case, however, it could be argued that Clause 7 is the correct place for the provision. The Standing Orders relating to the presiding officer are fundamental. The Assembly will not be able to function without a presiding officer and an assurance has already been given that under Clause 7(1) the Secretary of State's direction must and will include arrangements for the presiding officer.

The Standing Orders under Clauses 24 to 29 are of a more general nature and are not a prerequisite to the operation of the Assembly. That is art important difference and one that could be said to justify the present arrangement in the Bill. In other words, the Clause 7 provisions are an essential part of the preliminary arrangements for setting up the Assembly and for providing essential initial arrangements. The general procedures to be covered by Standing Orders are ancillary and for that reason come later in the Bill.

In introducing his Amendment, the noble Lord, Lord Gray—and I agree with him on this—also spoke on Amendments Nos. 28 and 75. In those Amendments he proposes that it should be mandatory that in its Standing Orders the Assembly should make provision for the election of the presiding officer, the election or appointment of a deputy presiding officer or officers and for the tenure of office of these officers. We consider it to be essential that the Assembly's Standing Orders should spell out the arrangements for the election of a presiding officer and his tenure of office. This, in fact, is made mandatory by Clause 7(2).

However, the Government cannot accept that it is necessary to make it mandatory for the Assembly to elect or appoint a deputy presiding officer. This is something that the Assembly may well consider to be necessary, but the Government believe that the Assembly should be left to make its own decision on this point. I hope that my explanations will, if not wholly, at least substantially, satisfy the points raised by the noble Lord, Lord Gray.


My Lords, the noble Lord, Lord Kirkhill, has been good enough to explain the difficulties that he sees arising from my noble friend's Amendment. However, I find it rather difficult to understand why, in fact, it is not possible to accept the Amendment which says that Clause 7(2)—which refers to the Standing Orders—should be included in that clause which refers to Standing Orders. It would appear that of all the Amendments, this subsection is one which is extraordinarily out of place, because it refers to Standing Orders; yet Clauses 24, 25 and 26 are headed "Standing orders—particular provisions". One would have thought that that is the obvious place to have something that refers to Standing Orders. I should have thought that in this respect my noble friend's Amendment does not alter the nature of the Bill at all, but simply makes it tidier. I would think that the noble Lord, Lord Kirkhill, would have been able to see his way to putting that in the appropriate clause.

With regard to the other points which my noble friend suggested about the election of the presiding officer and the deputy presiding officer, inevitably the Assembly must elect a deputy presiding officer, because what happens if the presiding officer is ill? If we are going to make Standing Orders, it would seem reasonable that they should allow for a presiding officer and a deputy. I still hope that the noble Lord can see his way to agreeing to this, because it would appear to make more sense and make the Bill tidier.


My Lords, I am grateful to my noble friend Lord Ferrers for his support in this matter. Before I decide what it would be appropriate for me to do, perhaps I could say to the noble Lord, Lord Kirkhill, that I accept his remark to the effect that he agrees with the spirit of the Amendment. There are certain things in his answer which I find quite surprising. He referred to the business of the appointment of the presiding officer—the words which actually state that Standing Orders shall lay down his appointment—as being (and I do not want to misquote him) a "prerequisite" and also, I think, a "precondition". I believe that that was the sense of what the noble Lord said. He had already told me that the directions of the Secretary of State, whether or not I amend Clause 6, will deal with this matter. That is a precondition to the first meeting of the Assembly; the Secretary of State will have directions that will deal with how the presiding officer is to be elected. The first or second meeting of the Assembly could not take place, presumably, if it had to wait on the making of the Standing Orders, as the Secretary of State will deal with this.

To take up another point made by the noble Lord, Lord Kirkhill, he said that the directions to be made would include this matter. Fair enough. I accept his assurance on that. It is not essential to my scheme that the words which I propose in my Amendment No. 27 are in the Bill. I would be quite happy to go along with the noble Lord's assurance and rest content. As regards Amendment No. 28, quite obviously I feel much more strongly. It is in the wrong place. How is a student of the Bill—someone concerned with the drawing up of the Standing Orders or looking to see what should he there—going to find that particular item, when he has, with the Act, something which tells him that there is something else dealing with Standing Orders, and there is no reference to the presiding officer in that.

As to my Amendment No. 75, of course we have a difference of opinion over this. As I see it, there is nothing odious in my proposal. I have not been more extensive in what I suggest than some of the other mandatory provisions which are already in the Bill. No technical objection has been raised to the words that I have employed. It seems quite reasonable, because, as my noble friend Lord Ferrers pointed out, there will have to be deputies of some kind. It is worth considering. We are saying that the Standing Orders of the Assembly shall do such and such. But we are not saying that they shall do such and such, plus something else. The discretion will lie with the Assembly. It will not need to have, as the Bill is worded, any regard to the need for a deputy. Of course, it will, logically, Yes. But perhaps it might adopt a system of which we at Westminster would not approve. I think it is a reasonable and perfectly proper point to put right in the Bill.

In general, I should like to add that the noble Lord, Lord Kirkhill, said "Yes, the draftsman has one opinion and I may have another". I am frequently wrong. I would suggest that draftsmen are perhaps occasionally wrong. Here we have a nonsense. I think that it would help the Bill—its readability and its sense—if we were to do something along these lines. Perhaps the noble Lord, having listened to what I have said, would perhaps seek the leave of the House to indicate to me whether he would have a look at this, because perhaps I have gone rather further than he expected me to do this evening.


My Lords, with the leave of the House, the Government's position is that the noble Lord's Amendments have been carefully studied. Essentially it is a drafting matter. My advice is that the Bill should stay as it is. That is the Government's position.


My Lords, the Bill will not fold or collapse because these Amendments are made. I think it is very sad that when from time to time noble Lords—not just myself—do bring forward something of this kind, the Government cannot respond, particularly when it is in their own interests. In view of the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 8 [Disqualification for membership of Assembly]:

8.34 p.m.

Lord McCLUSKEY moved Amendment No. 29: Page 5, line 20, at end insert ("(aa) he").

The noble and learned Lord said: My Lords, if it would be convenient to the House I should like to describe the effect of two other Amendments along with Amendment No. 29. They are Amendments Nos. 33 and 34. The first is a paving Amendment for the two later Amendments which are proposed to be made to Clause 9. As it stands, Clause 9 enables the Assembly to grant relief from disqualification if it considers that the ground has been removed and also that it is proper to do so. This might appear to permit the Assembly to grant relief in certain circumstances from any of the grounds listed in Clause 8. If this were so, then the Assembly would appear to have wider powers than are now available to Parliament itself. The Government do not now think that this would be right. The purpose of these Amendments is therefore to restrict the Assembly's power. It will be able to grant relief in proper circumstances, but only where disqualification has arisen through tenure of an office which the holder inadvertently failed to resign in due course. If I might give an example—if a VAT tribunal member wished to stand for the Assembly he could, if elected, resign his appointment as such a member and then be granted relief from disqualification. I am only talking about the inadvertent case, of course, because properly in that kind of case he should resign before he is adopted as a candidate.

The categories of disqualification that these Amendments explicitly remove from the Assembly's ambit of relief are, first, common law disqualifications from the House of Commons other than those arising from the holding of the offices listed in the House of Commons Disqualification Act 1975; and second, those arising from crimes for which the person has been sentenced to a prison sentence within the last five years. In practice it would rarely have been possible for the Assembly to grant relief from these disqualifications, since the ground for their imposition can never be removed. The common law disqualifications arising from, say, treason remain valid for life. Similarly, it is a matter of fact whether a prison sentence of at least three months without the option of a fine has been imposed within the last five years: there can be no question of the ground being removed in that case either. Nevertheless, on reconsidering this clause the Government concluded that as it stands it could be misleading and might convey the impression that there is some way of removing grounds that are inherently unremovable. These Amendments seek to put the position beyond doubt. I beg to move Amendment No. 29.

8.38 p.m.

Lord CAMPBELL of CROY moved Amendment No. 30: Page 5, line 27, after ("(d)") insert ("subject to the Rehabilitation of Offenders Act 1974,")

The noble Lord said: My Lords, when we were discussing Clause 8 in Committee I raised the question of disqualification and whether this fitted in, where crime had been committed, with the rehabilitation of offenders legislation. The noble and learned Lord, Lord McCluskey, agreed that it should fit in with that legislation, but he undertook to look into this somewhat complicated matter.

To remind your Lordships very briefly of what the rehabilitation of offenders legislation does, the Act of 1974 arranges for certain categories of offences officially to be forgotten after a certain period. This is done in order to help people to "go straight", or to clear their past and start afresh. I pointed out that under the wording of the Bill a period of eight to nine years of someone's past might be involved, whereas in the Rehabilitation of Offenders Act it appeared that five years was the normal period. Therefore, there seemed to be an inconsistency. The reason for my pointing out eight to nine years is that five years elapse before an election; but then of course up to another four years may elapse before the next election takes place, and during that period somebody might be challenged about whether they were disqualified because of some offence that had been committed during the five years before the election.

In the subsequent correspondence the noble and learned Lord has written to me and to the effect that he has had the matter re-examined and has come to the view that the present position is not satisfactory. It might in exceptional circumstances result in a person being disqualified from membership of the Assembly for more than five years. I put down this Amendment in order that the matter should be raised again, as otherwise at Report stage there would be no opportunity to discuss it. I now see that there are two Amendments, Nos. 31 and 32, in the name of the Lord Chancellor, which I suppose are the Amendments which constitute what the noble and learned Lord, Lord McCluskey, thinks is necessary. Certainly Amendments Nos. 31 and 32 look to me as though they carry out the task. I hope that the noble and learned Lord in replying to me will be able to tell me that these two Amendments make sure that the Bill is consistent with the Rehabilitation of Offenders Act 1974, in which case I shall be quite happy to withdraw my Amendment. I beg to move.

8.42 p.m.


My Lords, the noble Lord, Lord Campbell of Croy, has stated the history of this matter. May I just acknowledge with gratitude his contribution here because we recognise that the point is a real one. As I wrote to him, the Government considered the matter, and that is the reason why Amendments Nos. 31 and 32 appear on the Marshalled List. I am also happy to hear him say that he believes the Government Amendments carry out the task, and I hope to persuade the House that they do. Indeed, I believe that the Government Amendments sit happily beside the Rehabilitation of Offenders Act 1974, and no express dovetailing provision is required. Section 7(1)(d) preserves the operation of any enactment imposing any disqualification, the period of which extends beyond the applicable rehabilitation period. As the minimum rehabilitation period laid down by Table A in Section 5(2) of the Act is five years, there is no conflict with Clause 8 which will likewise be in terms of five years.

May I just mention Amendments Nos. 31 and 32, as I have been invited to do so, and it is convenient to do so at this stage and take them together. We looked into this matter. We concluded that the provision as contained in the Bill could indeed be more restrictive than had been intended and these Amendments are designed to correct that position, so that a person who offends can stand for any Assembly election, or by-election, which is held more than five years after the date of his conviction. Amended as proposed, the subsection will provide that anyone convicted in the British Isles of an offence for which he is sentenced to not less than three months' imprisonment without the option of a fine will be disqualified from membership of the Assembly until a period of five years has elapsed from the date of that conviction. I believe that Amendments Nos. 31 and 32 will meet the case. In the light of that, perhaps the noble Lord will withdraw his Amendment.


My Lords, I am glad that the Government, in looking into this, found it was necessary to make a change and tidy up this situation. Therefore, seeing that Amendments Nos. 31 and 32 are acceptable to your Lordships, I withdraw my Amendment.

Amendment, by leave, withdrawn.

Lord McCLUSKEY moved Amendmends Nos. 31 and 32:

Page 5, line 27, leave out from ("has") to ("been") in line 28.

Page 5, line 33, at end insert ("and a period of less than five years has elapsed since the date of that conviction")

The noble and learned Lord said: My Lords, with leave, I beg to move Amendments Nos. 31 and 32 en bloc.

Clause 9 [Exceptions and power to grant relief from disqualification]:

Lord McCLUSKEY moved Amendments Nos. 33 and 34:

Page 6, line 19, leave out ("on any ground") line 20, after ("constituency") insert ("on any ground other than one falling within section 8(1)(aa) or (d) of this Act ").

The noble and learned Lord said: My Lords, when addressing myself to Amendment No. 29 I mentioned Amendments Nos. 33 and 34. I do not think I need to add anything to what I said on that occasion. Again, with leave, I would beg to move Amendments Nos. 33 and 34 en bloc.


My Lords, the noble and learned Lord explained, when we were discussing the paving Amendment on Clause 8, the reasons for these two Amendments. I, in turn, must acknowledge that the Government have looked at this, and clearly have now tightened up the situations in which the Assembly could disregard a disqualification or could regard somebody as no longer disqualified. During the Committee stage I criticised the wording of this clause in these lines, and indicated that I thought that they went further in the original form than they ought to. The noble and learned Lord has now informed us that on looking into it they find that it would have enabled the Assembly to do more in this field than is done in Parliament at Westminster. I hope that your Lordships will agree with the noble and learned Lord that these Amendments should be made.


My Lords, perhaps I might be allowed to rise to my feet once again to acknowledge, as I should have done when I was addressing the House before, the contribution made in this regard as well by the noble Lord, Lord Campbell of Croy, who once again was very helpful to us.

Clause 15 [Defamatory statements in Assembly proceedings]:

8.47 p.m.

Lord MONSON moved Amendment No. 35: Page 8, line 13, after ("statement") insert ("relating to devolved matters").

The noble Lord said: My Lords, this Amendment and Amendment No. 37 are much more important than they might appear to be at first glance. The Committee came to Clause 15 a few weeks ago not very long before our dinner hour and, as tends to happen in such circumstances, we whipped through it with perhaps undue haste, not, I feel, having fully grasped its implications. Your Lordships' stomachs were understandably rumbling after a long and hard fought day, although the noble Earl. Lord Selkirk, and one or two other noble Lords put up a valiant rearguard action.

The implications of this clause are extraordinarily far-reaching. Immunity from the laws of libel and slander is surely something that ought to be granted exceedingly sparingly, yet it is proposed to grant such an immunity to Members of the Scottish Assembly. As the clause stands it will not matter a whit if they are discussing devolved matters or any other matter that comes into their heads, whether it has anything remotely to do with Scotland or not. Members of the Greater London Council, for example, have never been granted such an immunity even though they administer twice as many people as the Scottish Assembly will if it comes into being.

The noble and learned Lord, Lord McCluskey, has repeatedly assured us throughout all our debates on this Bill that Parliament will remain sovereign. Why, then, give the Assembly the status and dignity of a sovereign Parliament? I need not remind your Lordships that a well-known television personality was recently awarded over £30,000 damages—in fact I think it was nearer £35,000—for libel. This was the measure of the net income that he was calculated to have lost, or forgone, as a result of the libellous aspersions. Is it right that others throughout the United Kingdom should risk losing their entitlement to such damages because Parliament has not really thought this matter through?

The purpose of these two Amendments is to confine the cloak of privilege to discussion of devolved matters as defined in Clause 61 of the Bill. I have not tried to make the Amendment too restrictive. I have not, for example, used the words "relating purely to devolved matters", so there would still be loopholes for the mischievous. Nevertheless, I think it would still afford a vital protection to ordinary citizens in other parts of the United Kingdom—and indeed to those in Scotland when non-devolved matters are under discussion. Therefore, I urge your Lordships to accept this Amendment. I beg to move.


My Lords, I start by making the general point that I do not dispute what the noble Lord, Lord Monson, said; namely, that this kind of privilege should be granted sparingly. However, I do not think anyone would dispute that it needs to be granted in some measure to a legislative body. The GLC does not, as I understand it, fall into that category, nor indeed does Kojak. This is a different matter altogether.

The Government believe that these Amendments would simply not work in practice and that there is no way of making them work. I suggest to the House that we really must take a correct and realistic view of the likely content of debates in the Scottish Assembly and its committees. It is superficially attractive to say that the Assembly will be concerned only with matters in respect of which it has legislative competence or in relation to which the Scottish Executive has powers, but in my submission it makes no sense to imagine that the Assembly and Executive should or could be cooped up within a kind of sealed area surrounded by barbed wire and labelled, as this Amendment would seek to do, "devolved matters only".

For one thing, we should have no illusions about the difficulty—many noble Lords have referred to this in our debates—of determining whether a matter is or is not devolved. This is not any fault of the Bill or of the present Government; it derives from the fact that over the years Parliament has, no doubt in response to the requirements of society and the electorate, passed a great mass of legislation. I have referred to this before. That cannot be disentangled by any simple form of words. Accordingly, the question whether or not a matter is devolved can sometimes be rather difficult. I have said before, and I repeat, that anyone who thinks there is a simple way of defining devolved matters is not in touch with what has been happening in Parliament for a long time past.

We would have to accept, if that be right, that any Member of the Assembly could on occasion be quite uncertain as to whether he was addressing himself to a matter that was indeed devolved, and it would in my view be lamentable if we were to put some kind of restriction on debate because of the fear on the part of Members of the Assembly that they might be subjected to civil litigation. However, I seek to put the argument more strongly and at a different level. Why should we seek to restrict the Members of the Assembly to debating and considering devolved matters with this kind of protection? In the view of the Government, what is or may be happening immediately on the other side of the boundary between devolved and non-devolved matters will be a matter of legitimate concern to the Assembly. We cannot expect to put some kind of gag on the Assembly and place inhibitions on its debating, for example, aspects of housing policy which do not lie precisely within its legislative competence. The interactions and interrelations are much too close for that.

We shall be looking at the other Amendments to this clause which stand in the name of the noble Earl, Lord Selkirk, and in that context we can perhaps examine more fully the philosophy underlying the according of absolute privilege in respect of proceedings in a legislative Assembly. But I repeat that I believe it is completely wrong to try to impose constraints on liberty of expression within such an Assembly, and I believe there is a good deal of authority to support that. This is bound to be a source of some alarm to those who are, like the noble Lord, Lord Monson, opposed to devolution of this kind. Such people may claim that we are setting up in Scotland a kind of rival Parliament with the capacity to discuss anything it likes without any risk of adverse consequences, but there are two answers to that.

First, the Assembly's prime responsibility is in relation to matters which fall within its legislative competence or within the powers accorded to Scottish Secretaries; whatever they discuss or consider must have some relevance to that, or I do not doubt it would be outside the rules of relevance which the Assembly will itself develop. We have Rules in this House and there are Rules in the other place, and they govern debate. However, the ingenuity of Members, whether here or in the other place, is very successful in introducing irrelevant matter under apparently relevant heads, and we cannot hope by legislation to impose any specific limitation on what is discussed.

Secondly, is any sort of limitation enforceable? The Amendments to Clause 15 could be seen, I believe, as an attempt to place a curb in a somewhat odd way; the implication is that the Members of the Assembly may talk about anything they like, but if they stray outside devolved matters they do so at their peril, at the risk of civil litigation; and that is not an approach which the Government could accept, even if they thought—and they do not—that the wording produces a meaningful result or a result which could form the basis for any sort of regular practice in the Assembly.

We have said on a number of occasions that we do not think it right or realistic to attempt in this Bill to confine the Assembly to discussing devolved matters. In any event, we do not know what meaning could be ascribed to the concept of a statement relating to devolved matters. To return to my example about housing, would a statement about the undevolved part of housing be a statement relating to devolved matters? Exactly how close must the connection be? I ask these questions not because I know the answers—I do not—but because I suspect that these Amendments would simply cast on the courts the invidious task of deciding issues which are essentially political, for I cannot doubt that these Amendments would be seen by some as a green light to seek an opportunity for litigation with the ultimate object of putting the Assembly in its place.

Again, it is a matter of judgment, but the Government cannot believe that the Assembly will set itself up as a universal busybody which would seek to abuse the privileges which flow from this clause, and if it shows signs of doing that then one would have thought that the people in Scotland would themselves be the first to react; there would be that sort of control, as in many other related and unrelated matters. For these reasons, but particularly having regard to the character of this Assembly as a legislative Assembly, the Government consider that these Amendments are not workable and indeed are misconceived.

The noble Lord, Lord Monson, also made the point, and rightly, that on a number of occasions I and others have referred to the fact that the United Kingdom Parliament remains sovereign. Of course it does but in the normal case within certain areas the Assembly in Scotland will be passing legislation of a kind which would otherwise be dealt with in the United Kingdom Parliament. It must surely have the same kind of freedom, and I believe that to put this sort of barrier would make proper debate on matters within its competence extremely difficult.


My Lords, I support the Amendment. I did not wish to say so until I had heard the reply of the noble and learned Lord, Lord McCluskey—and I listened with fascination to what he said. As the noble Lord, Lord Monson, said, this is an important matter and it is a pity that by coincidence we should once again be discussing it at a late hour when interest tends to flag. Lord McCluskey said a great deal about putting a barbed wire fence around the deliberations of the Assembly. If I understood him aright, he rather suggested that those, like Lord Monson and myself, who are utterly opposed to the Bill have suggested that the Assembly would range unduly widely. It never occurred to any of us that this Assembly would range unduly widely until the noble and learned Lord's noble friend, Lord Kirkhill, took us all by surprise one evening at about this hour when we were sitting nearly half asleep—at least I was; I can only speak for myself—and I suddenly awoke to hear Lord Kirkhill say that the Scottish Assembly could discuss anything it pleased—even he said, Outspan oranges. That is where it all started.

It is no good the noble and learned Lord talking about us putting up barriers; we never thought about putting up barriers. When one considers inflicting on Scotland another 150 politicians, with all their supporting bureaucrats, to talk about Outspan oranges—well, the mind boggles. Why should they be allowed to talk with impunity about matters which are not their business? It has been said that many bodies speak about matters which are not their business, and that this is very right and proper.

In a democracy we encourage this. We encourage the Church, and in Scotland the Kirk, as well as industrialists and trade unionists to talk about a wide range of matters which are none of their business; and that is good and healthy. We are not complaining about that kind of thing. But why should the Government create, at vast public expense, an Assembly of 150 talkative Scottish politicians to talk about Outspan oranges and to give them the absolute privilege of impunity from action? That, as I understand it, is the question which this very serious Amendment raises, and for my part I would support it.


My Lords, may I ask the noble and learned Lord about one point arising from what he said? He appeared to draw a distinction between the GLC and the proposed Assembly in Edinburgh, and he said that these provisions in the Bill were like this because the proposed Assembly in Edinburgh was to be a legislative Assembly, whereas the GLC is not. Does that mean that the noble and learned Lord regards a legislative Assembly as the kind of Assembly which requires this kind of privilege? Is that the distinction he is trying to make between it and the GLC?


My Lords, with the leave of the House I should like to say that the distinction is not essential to my argument. What is essential is that this is a legislative body, and I believe that there is much support for the view that a legislative body must have such unrestricted right of speech. On page 73, in Chapter VI, of the 19th edition of Erskine May it is stated: Freedom of speech is a privilege essential to every free council or legislature". It may be that the GLC is a free council. But certainly so far as a legislature is concerned, if one seeks to remedy an evil by legislation, and one wants to introduce legislation to do that, one must be free to describe the evil. Sometimes one may be wrong. One may have misconceived something, and have thought an evil to be present when in fact there is no such thing. That is really the basis upon which one claims such a privilege for a legislative body.


My Lords, I am grateful to my noble friend Lord Wilson of Langside, for his support. I am sorry not to have received rather more support or interest from the official Opposition, because I thought that they described themselves as the Party who favour the protection of the individual—but there we are. I consider that the noble and learned Lord, Lord McCluskey, was rather too sanguine about leaving the clause as it stands. I believe that if the clause is left unamended, it will be a godsend to those who seek the break-up of the United Kingdom. Earlier this evening the noble Lord, Lord Vaizey—who, unfortunately, is not able to be here at this moment—and who is an expert on Irish history, was describing to me how the Nationalists in the Irish Parliament had used just such a privilege to cause all manner of mischief and stir up all kinds of trouble. Leaving the clause unamended will tilt the balance far too much against the ordinary United Kingdom citizen. While recognising some of the points made by the noble and learned Lord, Lord McCluskey, I believe that the possible consequences will lead to great resentment throughout the United Kingdom if certain statements which defame individuals are made with impunity.

However, in view of the fact that the noble and learned Lord has made a reasonable case for protecting oral statements I should prefer to stick on written statements—that is to say, Amendment No. 37— particularly in the light of what the noble Earl, Lord Selkirk, has to say on Amendment No. 36, and depending upon whether that Amendment is accepted. Therefore, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.6 p.m.

The Earl of SELKIRK moved Amendment No. 36: Page 8, line 13, leave out ("whether oral or written") and insert ("including written answers to questions").

The noble Earl said: My Lords, I beg to move this Amendment. We have just heard two or three speeches which I think have properly emphasised the importance which has been given to the Bill by Clause 15. The noble Lord, Lord Monson, has very properly said that the powers included are very far-reaching, and the noble and learned Lord, Lord McCluskey, has himself said they should be used sparingly. Everybody who has examined this problem—and many people have—has agreed that the powers should not extend beyond what is absolutely necessary for the proper performance of the Assembly's duty. I recall the last time that I discussed this matter with the noble and learned Lord the Lord Chancellor, who, incidentally, has told me that unfortunately he is not able to be present at the moment.

I am not going to argue tonight about the need for this protection which we are considering, and I am not going to argue that the Assembly should have the same protection as the Parliament in Westminster—but no more. Here is the crux of the point I am raising. I say that the words in question go far; they go much wider than what is currently the practice in Westminster. Furthermore, there is no reference whatever to the Westminster practice, nor indeed to Erskine May. I believe that it has been almost the universal practice that, when members of the Commonwealth have received Constitutions, their privileges have been directly related to those of the House of Commons. I had a letter from the noble and learned Lord the Lord Chancellor and I must say quite bluntly that he acknowledges he is going beyond the protection which is given in Westminster. He is taking recommendations from two reports which have not yet been implemented in Westminster. It is a perfectly frank acknowledgement that these rights go beyond those currently recognised in Westminster.

I have been through the report—I think it is 1968–69—for which Mr. Harold Lever was chairman. It is a very good and interesting report and I went fairly carefully through those points of consequence. May I read this? It is not very complicated but it is very important to get it right: any statement (whether oral or written) made in proceedings of the Assembly …". "Proceedings of the Assembly"—those words come from a Bill of Rights at the end of the 17th century and have not been altered, and nobody has been able to alter them since that time. There has been infinite argument as to what they mean, and there has never been any agreement. You can find that in Erskine May (I think it is on page 51 in the edition that I have).

Let me go now to Mr. Harold Lever's report, the whole of which from beginning to end centres around the problem of uncertainty. Every report that comes before it refers to the uncertainty of what is meant by the proceedings in Parliament. It affects the Press, punishment, all kinds of things. Mr. Lever's report said that the only thing he could say with certainty was entitled to absolute privilege were things said and done in the Chamber. There was nothing else he could say with certainty was entitled to absolute privilege. But even that is not entirely true. For instance, if noble Lords in a corner have a conversation of a defamatory character, unconnected with the business of the House, that is defamatory; it is not privileged. There was one case where Mr. Bradlaugh was turned out by the Serjeant-at-Arms—that was not considered a proceeding of Parliament. Another Member of the other House assaulted the Speaker. That was not considered a proceeding of the House. These are matters which have arisen at one time or another, so even in the Chamber itself everything is not a proceeding of Parliament.

The Select Committee went on to say that Written Answers to Questions probably were absolutely privileged, as were notices of Motions, but it said specifically that letters to Ministers were not included. That is all included in the report. May I say with respect that the noble and learned Lord the Lord Chancellor is going beyond that, and may I also say with respect to what the noble Lord, Lord Monson, and others have said that we have no right whatever to go beyond that. It is totally wrong that we should do so. As I said, all examiners of this have made it quite clear that it should not go beyond that, and Mr. Lever's committee said the same thing. It should not go beyond what is necessary for the execution of its powers. Do we want to go beyond or do we not?

There were a number of recommendations. That was 10 years ago, but Parliament has not yet thought fit to adopt them. Are we really entitled to go beyond what Parliament stands for? These recommendations may be desirable—I am not arguing that. All I am saying is that at present I do not think we are entitled to go beyond the practice at present existing in Westminster.

The noble and learned Lord may not think my Amendment perfect. Perhaps I should also include Written Answers, but even that goes beyond what Mr. Harold Lever says is undoubtedly a matter of privilege. Maybe I should add notices of Motions. I think we should do what the Commonwealth countries have done and relate the proceedings in the Assembly directly to the normal standards of Westminster. I think this is very important. It is not a matter that we should slip up on. I am quite certain that the noble and learned Lord wants to get it right just as I do. This is a very powerful, and could be a vindictive weapon. People can use this very wickedly; and may I say that, in my experience, I have seen it badly used. It can be used in this manner, but I see no reason why it should be so. This is not a personal privilege: it is a privilege of the Assembly itself. It does not belong to individuals: it is part of the dignity of the Assembly that these powers should be properly used. I see from Clause 79 that this extends to committees, too. That is perfectly all right—I have no objection to that—but it makes it doubly important that we should get this right and should not overstep it. Frankly, I think we have been rather rash in trying to put this into writing—something that the House of Commons has not done for 300 years—and I think we should be very careful what we put into this Bill. I beg to move.


My Lords, I do not think I can adequately add very much to what my noble friend has said, except for this: that on a subject like defamation, about which I am myself signally ignorant, a few lines in a Bill like this are likely, as it seems to me, to give rise in due course to a fair amount of litigation. If the way in which the Bill is drafted in this clause is not accurate or is open to differences of interpretation—and my noble friend has mentioned a number of possible differences that could arise—then of course in the end the dispute will come before the courts; and if there is one thing which is notorious it is that I do not think that in Scotland any more than in England is legal aid available for litigants in defamation cases. Such a case will therefore be litigated at the expense of the private citizen, entirely unaided by any form of subvention, even if he is the poorest person in the land.

I think I can detect that there will be difficulties in the Government merely saying that, "for the purposes of the proceedings in the Assembly, any rule that is currently in force in Westminster as to what are or are not the proceedings of Parliament shall automatically apply to the Assembly", and I am not sure that I see that the drafting of such a provision would be very easy. Nevertheless, I am inclined to share the concern of my noble friend about whether we have been sufficiently accurate in defining exactly what parts of the proceedings of the Assembly are to be protected by this complete privilege from any subsequent action in delict—if defamation is delict in Scotland, as I trust it is.

I think that the noble and learned Lord will wish to help on this. It may be that it is a very difficult area upon which he may not be able to give us a great deal of guidance, but he certainly will not, I feel sure, wish to provide the Assembly in Edinburgh with a greater amount of protection than obtains in the Parliament in Westminster. That, I am sure, is not the intention of the Government in drafting this, and what we are really trying to do is to produce a parity. The difficulty, as my noble friend has pointed out, is to see what are the areas in Westminster which are indeed protected; and, without taking this clause out of the Bill altogether and simply writing in that everything which is done in Westminster shall automatically be done in Edinburgh, whenever it occurs and without any further legislative intervention—which is obviously a difficult thing to draft—I wonder whether there is any device we can think of. Perhaps it is a matter of Standing Orders; perhaps it is a matter of rules; perhaps it is a matter which we can approach on a flexible basis as things emerge during discussion in the course of the implementation of some of the recommendations of the Lever Committee. I know not what would be best, but it seems to me that that might be a more constructive approach than to try to get it all right this evening, because we are not going to be able to; and if we get it all right this evening we shall not get it right on a permanent basis. If the noble and learned Lord will perhaps look at this with that sort of approach in mind—I hope that is a constructive way to go about it—he may, for all I know, find that this Amendment is a good thing to have in anyway, but he will still have an opportunity to go a little further.


My Lords, I was very surprised to listen to some of the remarks of the noble and learned Lord, Lord McCloskey, when he was replying to the previous Amendment. He spoke about putting a barbed wire fence round some of the proceedings in the Assembly, and he spoke about gagging its deliberations. That seemed to me to be very strong language indeed; and he used as one of his examples discussions on housing policy. I have taken part in quite a few discussions on housing policy, some in this Chamber and some outside of it. I cannot think of any occasion on which I would have felt that I needed the defence of Parliamentary privilege against possible attacks under the law of defamation. I should have thought that any reasonable Assemblyman could, with a little thought, keep himself on safe ground. I hope that the noble and learned Lord will consider very seriously what my noble friend, Lord Selkirk has already said and what my noble friend Lord Colville of Culross went on to say. I hope that if he is unable to provide a helpful and sympathetic reply on this Amendment that they will press it to a Division.

9.20 p.m.


My Lords, I certainly believe that the principles on which the Government have sought to approach this matter are principles that we share entirely with the noble Earl, Lord Selkirk, and the noble Viscount, Lord Colville of Culross. Indeed, against that background I must confess that I have some little difficulty in understanding one or two of the phrases used by the noble Earl, Lord Selkirk. It may be that we have in mind a different letter in the course of the correspondence between himself and the noble and learned Lord the Lord Chancellor, but in the letter of 2nd June from the Lord Chancellor to the noble Earl, the second paragraph begins: As I said in the debate, the words proceedings of the Assembly' are used deliberately in order to attract the same meaning as is attracted by the similar phrase, 'proceedings in Parliament', although we are well aware that the phrase has caused problems at Westminster". So the intention was—and, as I understood it, that was what was contained in the letter—that there should be no greater privilege accorded to the Assembly than is accorded to Westminster.

The Earl of SELKIRK

My Lords, may I read a paragraph further down? This is the third paragraph of the 2nd June letter and it says: The Joint Committee on Publications of Proceedings in Parliament recommended in the 1969–70 Session that there should be a statutory definition of proceedings in Parliament '.". This recommendation was endorsed by the Faulkes Committee. Both the Committee and the Faulkes Committee suggested that it should be made clear by statute that the protection should extend to written communications, for example, between Members of Parliament and Ministers about matters within their respective duties. Those are the recommendations which have not been carried out in Westminster. That is the point I wish to make.


My Lords, I do not want to read the whole letter into the record but the essence of the matter is —and I now quote from the fourth paragraph: While recognising the existence of problems at Westminster caused by the absence of a definition of 'proceedings in Parliament', I do not think it would have been right to attempt to solve them in relation to the Assemblies in advance of Westminster legislation. The Scotland and the Wales Bills are complicated enough without trying to use them as vehicles to provide solutions to this kind of wider problem.". What, in essence, is being said there is that in this matter of precisely what is included in the term "proceedings in Parliament", we acknowledge there is a degree of uncertainty, and we acknowledge that recommendations have been made from time to time about how Parliament, through legislation, might go about the problem of defining "proceedings in Parliament", defining the extent of the privilege. But Parliament, despite recommendations and despite a draft clause from one of the committees, has not grasped this particular nettle.

May I, generally, turn to the clause itself and say what are the objectives of the provision in Clause 15. They are, first, to give the Assembly as near as may be the same liberty of expression as Parliament enjoys and not to go beyond that; and, secondly, to try to achieve this result with the minimum of provision and without entering too far into the minefield of Parliamentary law on this matter.

I have already addressed myself in answering the previous Amendment to the general matter of liberty of expression. I have said—and I repeat it here because it is relevant—that the critical factor, though not the sole factor, is that the Assembly is to have legislative competence. Indeed, it will be passing legislation of a kind that would otherwise be passed in Parliament itself. For that reason, as I have already sought to explain, there must be freedom of speech so that the content of the legislation can be fully and properly discussed. I hope the House will not think that my language was extravagant in answering the previous Amendment. The noble Lord, Lord Hylton, referred to housing. I can think of the debates some years ago on what came to be known as "Rachmanism". In that context, had the persons who were addressing themselves to the problem of Rachmanism felt that they faced civil litigation if they described the evils in certain terms, the debate could not have been properly conducted. So I believe that housing is not a bad example, and in that particular instance makes good the language that I used.

Accordingly, the Government seek to achieve by Clause 15 the kind of protection which I have described. In relation to the actual provision, what we say is this: we acknowledge that there has been a good deal of debate over many years about the meaning of "proceedings in Parliament" both in court and in the course of the considerations of various committees. But the Parliamentary machine works tolerably well despite the doubts and some uncertainty. As the letter by the noble and learned Lord the Lord Chancellor sought to say, what the Government do not want to do in the context of this Bill is to embark upon the somewhat hazardous enterprise of trying to write out, as it were in longhand, a detailed code about exactly what material is protected in exactly what circumstances. As I said, various successive Governments in Westminster over the years have, for one reason or another, hesitated to do that and have not done so. We do not believe that we should introduce some kind of pilot scheme into the Scotland Bill.

The Amendment seeks to retain absolute privilege for oral statements. Let us be quite clear about that. The noble Earl, Lord Selkirk, was himself absolutely clear; but I want to underline the point that he does not seek to restrict the absolute privilege contained in the clause in respect of oral statements. However, in the sphere of written statements, the Amendment would confer absolute privilege only on Written Answers to Questions. We believe that it ought to run wider than that. Suppose, for example, the Assembly creates, as it may well do, pre-legislation committees to which Government Departments and interested parties can submit written representations. In these representations they may wish to describe some of the evils which they suggest ought to be put right by Assembly legislation.

Would it not he right for these representations containing these assertions to be incorporated into the record? Surely, in that kind of context, they would form part of the legislative process. If some body or person thinks that it or he may be libelled or may have been libelled, is the remedy to apply to the court for an injunction in England or an interdict in Scotland and to hold up the Bill indefinitely? Would not the proper course be for it to submit its own representations? Is not that in a sense the meaning of "open Government" which is so widely advocated today?

I believe that although there have been cases of difficulty over the years, and that Committees have sat on this matter, including the one upon which the noble Earl played a distinguished part, and although they have been unable to arrive at conclusions and recommendations upon which Parliament felt able to act, none the less I believe that the system which obtains at the present time works well enough. I do not think that the Westminster tradition has sought to cover such things as casual remarks between Members not related to the subject of the debate, whether in the lobbies or on the Back-Benches or in the course of some kind of altercation. Indeed, I do not believe that the wording in Clause 15 could seek to cover such a situation.

I was asked whether we would consider this again. As noble Lords will appreciate, I was not myself involved in this matter when it first came up, though I did listen with interest. I did not take part in the subsequent correspondence but I am assured that the draftsmen have looked at this with great care in the light of the exchanges that took place. The exchanges were perhaps a little truncated by the dinner-hour on the last occasion, but the message was loud and clear and of course the draftsmen had access to the reports to which reference was made then and again today. In the light of this reconsideration, and in view of what was said last time, the draftsmen advise us, and we accept that advice, that this clause does what we seek to do and it gives to the Assembly the privilege which is accorded to Parliament by the existing law, and no more. For that reason I would defend it as it stands and would ask your Lordships not to accept this Amendment.

Perhaps I might say just one other thing about the Amendment. Having listened to the noble Earl, Lord Selkirk, and having heard one or two of the remarks made by the noble Viscount, Lord Colville, I am a little uncertain as to whether they themselves are entirely satisfied with the drafting of the Amendment and the effect that could have on the clause. Perhaps the noble Earl when he replies would elucidate that a little further for me.

The Earl of SELKIRK

My Lords, I am not quite certain how far the noble and learned Lord says he will look at this. I am bound to say that some of his remarks are disturbing. He said, for example, that if you give evidence to a committee, that evidence is completely privileged. That is a pretty wild statement. I could give evidence to a committee and say some ghastly things about all sorts of people and then say: "That's all right: I am absolutely privileged." I think one has to be careful about that sort of thing, and I should have thought that the noble and learned Lord should err on the side of caution.

There is no doubt at all—I have given evidence of this and I do not want to go over what I have said before—that this goes further than is the current certain practice in Westminster. I say with respect that I do not think we should allow this to pass as it is. I have made two suggestions as to what could be added. I think Written Answers should be added and Notices of Motion should be added; but when it comes to giving evidence before a committee, to say that it is automatically covered means that you are throwing this privilege awfully wide, and much wider than is normally accepted in Parliament.

I would ask the noble and learned Lord whether he would look at this and give an opportunity of seeing what might be done, because I think we are asking a lot of a new Assembly—not one that has been in existence for over 700 years and evolved over many decades—a brand new body, which is being given this burning power to hurt other people. I think we need to be very cautious. I do not think we should be too rough about this. We could extend it afterwards. If the noble and learned Lord will say that he will look at this carefully, I shall be very glad to withdraw the Amendment.


My Lords, I am in some difficulty because my advice is that this matter has been looked at very carefully and I am sure that that is so. However, at the risk of making myself unpopular in certain quarters, I am going to say to the noble Earl that we have had some very successful and fruitful discussions with the noble Viscount and with the noble and learned Viscount, Lord Dilhorne, in relation to other matters. I do not believe that we have had such a discussion with the noble Earl, Lord Selkirk, and I believe it might be very fruitful if we were to do so. I am not promising that I shall be able to persuade Parliamentary Counsel to change their minds, but I think I ought on my own responsibility to make the attempt, and accordingly I will undertake to do so.

The Earl of SELKIRK

I thank the noble and learned Lord for what he has said, and I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

9.34 p.m.

Lord MONSON moved Amendment No. 37: Page 8, line 16. at end insert ("relating to devolved matters;").

The noble Lord said: My Lords, I beg to move this Amendment, which is slightly different in effect from Amendment No. 36, which has just been moved by the noble Earl, Lord Selkirk. I believe it is also slightly less restrictive in that it provides full protection as far as documents relating to devolved matters are concerned. Whatever may be said in favour of extending privilege to oral statements, some of which may be made in the heat of the moment—and to that extent I am prepared to accept the reasoning of the noble and learned Lord, Lord McCluskey—no such arguments can be justifiably employed to defend libellous documents. For that reason, and particularly in view of the powerful and informed arguments on his Amendment just advanced by the noble Earl, Lord Selkirk, I hope that the House will accept this Amendment. My Lords, I beg to move.


My Lords, I think the point which the noble Lord, Lord Monson, was making was that one of the misuses of privilege in the Assembly would be when it was discussing reserved subjects, and some Members were specifically attempting to drive wedges and to foster separation from the United Kingdom. That is probably not one of the more important arguments on this Amendment, so I shall leave it. The argument about parity with Westminster should be put slightly more strongly. The noble and learned Lord, Lord McCluskey, said that the present wording of the Bill gives parity with the Westminster Parliament. But, since some of the subjects which the wording of the Bill makes privileged could perfectly well be raised in the Westminster Parliament, I would say that to give the same privilege in the Assembly is to give it more than parity with Westminster.

I have one other point. The noble and learned Lord, Lord McCluskey, assured us that the courts would have great difficulty in deciding what was or was not a devolved matter, in relation to a defamation case. I should have said that the whole Bill depends upon the courts being able to discern the difference between a devolved matter and a non-devolved matter. If, in any case other than a defamation case, the courts cannot decide what is devolved and what is not devolved, then the whole Bill is unworkable anyway. Therefore, the very fact that the Bill has been put forward assumes that the courts will be able to find the dividing line between devolved and non-devolved matters, and will be able to apply it as necessary in a case of defamation. So I strongly support the Amendment of the noble Lord, Lord Monson.


My Lords, I believe that we are talking about Amendment No. 37, which is to insert at page 8, line 16, the words "relating to devolved matters". If I may read the clause as so amended, it would then read: (1) For the purposes of the law of defamation in any part of the United Kingdom— (b) the publication under the authority of the Assembly of any document relating to devolved matters; shall be absolutely privileged.". Let me draw attention to what is involved here. We are talking about the publication, under the authority of the Assembly, of a document. We are not talking about casual remarks that are made. We are not talking about that at this stage. Apart from pointing that out, I believe that everything I have said in relation to the last two Amendments has relevance here, and I do not want to take up time by repeating points that I have already sought to make. I do not believe, given that we have departed at least for the moment from Amendments Nos. 35 and 36, that having regard to the limited character of Amendment No. 37 the House would seek to support such an Amendment at this stage, and I invite the House not to do so.


My Lords, everything which the noble and learned Lord, Lord McCluskey, has just said reinforces my case. I accepted rather reluctantly his argument on my Amendment No. 35, because I see that it is possible for people to utter slanderous statements in the heat of the moment without realising what they have said. However, before a document is published there is plenty of time to think things over and make absolutely certain that nothing libellous is said. I think that the House of Commons, which never had a chance to examine this clause in detail because of the guillotine, ought to be given a chance to do so. When they have examined the pros and cons and come to a decision accordingly, they can either accept it or reject it as they wish. Therefore I intend to press this Amendment.


My Lords, before the noble Lord does so, might he not just consider what the noble and learned Lord, Lord McCluskey, said a few moments ago on the Amendment which was moved by my noble friend Lord Selkirk? One cannot pick out just the publication of a document that relates to devolved matters as opposed to the publication of any other document and say that this should be the acid test of what is or what is not to be a matter that is absolutely privileged.

The whole point of what my noble friend Lord Selkirk was saying seemed to me to be this: that here there is an area of real and, I think, accepted difficulty and the moment in time has arrived when, to the misfortune of the knightly and learned draftsman who has to put this upon paper, he must put something down which will do in the Scotland Bill. The noble and learned Lord has said that he will look with my noble friend Lord Selkirk at the way in which this has been done. He will not then be in the difficulty of each of us making only one speech; there will be a number of opportunities to go rather further afield than we have been able to do in this debate.

May I ask whether the noble Lord, Lord Monson, is going to insist upon this one point when there is, if he looks at the report of the committee under the chairmanship of the right honourable gentleman Mr. Lever, a whole area of difficulty which is just as worthy of consideration in another place since the other place did not have the opportunity previously to consider these matters. Is the noble Lord really going to insist today upon this one point after the noble and learned Lord has said—I think with a good deal of acclamation in the House—that we could with advantage have a sensible discussion about the whole area covered by Clause 15.

With the greatest respect to the noble Lord, I should have thought—and I hope that other noble Lords in the House will agree with me—that since we have had such an offer from the Government we ought to take it up before a firm line is adopted about insistence upon one particular Amendment. Of course the noble Lord feels strongly about it; and I think that many other people are very perplexed. Now, however, we have received a generous offer, and it is one upon which I hope noble Lords will rely.


My Lords, while the noble Lord, Lord Monson, is making up his mind, one difficulty regarding Amendment No. 37 is that a document which was published under the authority of the Assembly might contain some matters which were devolved and some matlers which were not, and this could give rise to problems. It may also be helpful to point out that before a publisher puts any book or publication on the open market, normally he takes legal advice if there is anything at all suspect or difficult about it.


My Lords, with the leave of the House, if I have interpreted correctly the remarks of the noble Viscount, Lord Colville of Culross, he is urging me to wait until Third Reading—may I ask the noble Viscount whether or not that is so?


Yes, my Lords.


—to see whether the Government come forward with some kind of compromise Amendment. I am afraid that I did not interpret what the noble and learned Lord said in that way. If, however, it is the case that before Third Reading an effort will be made to arrive at a suitable accommodation, then beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 18 [Legislative competence of Assembly]:

9.45 p.m.

Lord McCLUSKEY moved Amendment No. 38: Page 9, line 1, leave out ("contained in a Scottish Assembly Act").

The noble and learned Lord said: My Lords, we now come to Clause 18 and it would perhaps be to the convenience of the House if we were to discuss this Amendment No. 38 along with certain others, eight in number; namely, 39, 42, 44, 48, 50, 51, 52, and No. 175, an Amendment to Schedule 12. These Amendments are the fruit of one of the discussions to which I referred a little earlier and perhaps I may describe them. They are directed to the binding nature of the decisions of the Judicial Committee of the Privy Council. They seek to do two things: first, to tighten up the provisions which specify exactly what the Secretary of State should refer to the Judicial Committee on pre-Assent review, and secondly, to ascribe finality to any decision of the Judicial Committee, whether pre-Assent or post-Assent. That is the general description and I will now try to guide the House through these Amendments.

The Amendments to Clause 18 clear the way for what follows. Clause 18(2) now becomes a simple statement that any question whether a provision is within legislative competence should be determined in accordance with Schedule 2. At present a distinction is made between Acts and Bills; and this distinction does not have to be maintained. The revised Clause 18(2) will be completely general and will refer simply to "a provision".

The relevant Amendments to Clause 19 change the emphasis of that clause very substantially. They would require the Secretary of State to refer not a whole Bill —which by virtue of Clause 19(2) can mean any specified provision of a Bill—but any of the provisions of a Bill. This would not prevent the Secretary of State, in a suitable case, from referring all of the provisions of a Bill; but either way his duty will be to identify the suspect provisions for the guidance of the Judicial Committee. So the Judicial Committee will give their decision upon those provisions and this is of vital importance in relation to the finality provision which is now offered. This provides that if the Judicial Committee accept a provision as being within competence, that decision is binding in all legal proceedings. Amendment No. 175 to Schedule 12 would make similar provision with regard to a post-Assent decision.

I must explain the intention with regard to pre-Assent decisions. The House in Committee was insistent that the binding nature of such a decision should be limited to the matters in issue before the Judicial Committee. We think that is right and consider that we have achieved this; but I must make it absolutely clear what we are now doing. A pre-Assent decision will be that a particular provision is, or particular provisions are, within competence. Any provision which has been examined and, so to speak, passed by the Judicial Committee of the Privy Council will thus, if I may use a particular expression, have been proofed against future challenge and we do not think it would be possible or appropriate to proof it in respect only of the particular arguments which were adduced to the Judicial Committee. There has to be a theoretical possibility that somebody might one day want to argue a ground which was not in fact argued on pre-Assent reference. We do not think this is very likely because any provision referred will be subjected, we believe, to the closest scrutiny.

One has to bear in mind that so far as the Government are concerned such a reference will be a major issue to which the whole weight of the Government's legal machine will be applied. Ordinarily the question will involve close examination of the various elements of Schedule 10, starting with the identification of a matter as a devolved matter within Part I and leading through the relevant parts of Part II and Part III. But, of course, there is still a theoretical possibility that some argument is not in fact adduced and does not emerge until a real life case throws up a particular ground. We think this is unlikely but we concede that it is possible.

In any event we advance this further point. When a provision has been examined in the way envisaged and then endorsed by the Judicial Committee on pre-Assent review, the citizen at large ought really to be entitled to regard that provision as being sound and indisputable law. In this case it seems reasonable to place his interests above the interests of the aggrieved citizen who would like, on post-Assent challenge, to find some new argument or some new ground which escaped the Judicial Committee on pre-Assent review or has not been presented to them. So we do concede that this is a slight inroad into the perfect post-Assent judicial review, but we believe that the advocates of judicial review have really got here most of what they want, and we believe this is a reasonably satisfactory compromise. It is certainly one which we discussed, and I believe it meets the wishes of the noble Viscount and the noble and learned Viscount, Lord Dilhorne.

There is no corresponding point on post-Assent challenge, because in a post-Assent case what is taken to the Judicial Committee is, of course, whatever the particular case requires. So this is a general description of this collection of Amendments, and I commend them to the House. I believe that they will be welcomed by the noble Viscount, but I wait with expectation. I beg to move.

9.52 p.m.


My Lords, in response to that, perhaps I can start with Amendment No. 175, out of what I can only think is true illogicality; it is the odd man out, slightly. It provides exactly what I had hoped in that if, as it turns out, we are in fact going to send references to the Judicial Committee, as opposed to this House—and that was the decision on the Committee stage—then we had to provide that the decision of the Judicial Committee shall be domestically binding all over the British Isles; unless we put something in the Bill that would not automatically have happened. So that is an exceptional point which does not run entirely along the lines of all the rest of the noble and learned Lord's points; certainly that is one that I am very pleased to see, and I hasten to assure him and the House that I am also pleased to see all the rest.

The point is this. This perhaps is only really repeating in different words what the noble and learned Lord has said. The Civil Service and the joint draftsmen in London and Edinburgh, who I think will be in constant liaison on legislation, will have had a very close eye on the vires of all Bills that come up in Edinburgh. We shall, therefore, at that stage, before the Bill is even presented to the Scottish Assembly, have a very close scrutiny to make sure that mistakes are not made. Then there is the consideration on the pre-Assent review, under the Clause 19 that we shall come to in a moment. There is only this sole example of the education case in Northern Ireland to which we referred at the last stage, which is not I think a very good one, because I would not normally expect a local authority to get into the act in the way in which they did in that case. The ordinary situation, as I would believe it to be, would be that there would be the Law Officers of the Crown from Edinburgh and from London arguing the case in front of the Judicial Committee.

One of the things that are going to be provided in a later Amendment—and I cannot remember whether this is one of those which the noble and learned Lord mentioned, but it is No. 46—is a pre-Assent review in the case of doubt. The doubt may come from anywhere and the doubt will certainly be presented in the form of a positive question for the Judicial Committee to decide. So, we shall not have a blanket reference—as the Bill at present provides—for a Bill to he looked at without anybody picking out the specific issues over which there is a worry.

If a Bill is to be referred, it will be because each and every clause in that Scottish Assembly Bill needs to be looked at by the Judicial Committee. If each and every clause does not need to be looked at, then the reference will relate only to those clauses, schedules or whatever, that do need to be looked at. Therefore, the whole system has changed so that the area of dispute will now be identified and specifically presented by the lawyers on both sides by way of argument before the Judicial Committee for it to decide. As I understand it, this is a fundamental change at any rate in the way in which it might have happened, but not necessarily in the way in which it would have happened. It is a great step forward.

For myself—and I hope that noble Lords on this side of the House would agree with me—I feel that the penalty that one has to pay for having that degree of precision in the pre-Assent review is that, thereafter, if Clause 3 has been looked at, it will have been looked at on all possible grounds of argument and it will be no use subsequently discovering some recondite point which was not, in fact, presented by the Lord Advocate, or by the Scottish Lord Advocate or whoever it was, to the Judicial Committee. That clause will, as the noble and learned Lord said, have been proved.

I should have thought this a reasonable compromise to reach. There are noble and learned Lords, and I should think there are noble Lords too, who would say there is no cause to challenge a Scottish Assembly Bill at all and that, if for some reason a mistake is made, the citizen must live with that mistake. I do not agree with that, but I do agree that we would have to come to some meeting ground in the middle. I believe that after a great deal of very careful thought by the Government, by the draftsman and by all of those who have taken part in these discussions, we now have a system as regards this whole matter which will in fact work and as regards which I should have thought there would be a minimal chance of failure or complaint arising.

Therefore, I would commend this series of Amendments to the House. All I can say is that it is very satisfactory and a matter of gratitude on our part that the Government have gone so far as to meet a great number of points, and a variety of points which were not necessarily expressed in what the noble and learned Lord said, but which are covered by these Amendments.

Lord McCLUSKEY moved Amendment No. 39: Page 9, line 4, leave out from first ("Act") to end of line 7.

Schedule 2 [Legislative competence of Assembly]:

9.58 p.m.

Lord McCLUSKEY moved Amendment No. 40: Page 46, line 19, leave out from beginning to ("a").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 40. A glance at the Marshalled List will convince your Lordships that this is one of the most astonishing looking Amendments before the House because it stands in the name of the Lord Chancellor and the noble Lord, Lord Morris. It just shows that if we go on long enough we can get agreement between even the most implacable foes in relation to a matter of this kind! We had discussions about Schedule 2 during the Committee stage and the Government have introduced Amendments Nos. 40 and 41. The arguments to be advanced in connection with the Government Amendments to this Schedule apply here and I think that I should, with your Lordships' leave, deal with Amendment No. 41 as being the more important Amendment, and perhaps move Amendments Nos. 40 and 41 together in the name of the Lord Chancellor.

During the Committee stage and the debate to which I have referred the breadth of paragraph 8 of Schedule 2 attracted a good deal of notice and criticism. In particular, the wording there was criticised because it seemed to allow cross-Border legislation, and it was also criticised because of the words "necessary and expedient", which are contained in paragraph 8. The Government have always maintained that the power to legislate across the Border was never intended for, and would not have been available for, anything more than purely consequential provision; and certainly would not have been available for substantive provision.

However, having carefully considered all the points that were raised during the Committee debate, and noting the deep concern of your Lordships and the moderate way in which the arguments were advanced, the Government have accepted the central thesis that they should remove any possibility of extra-territorial power and also the apparent policy discretion arising from the phrase, "necessary and expedient". The new paragraph 8, as amended, makes clear beyond argument the extent of the provision. Therefore, what is allowed is a provision which is "merely incidental to or consequential on" other provisions which are themselves within legislative competence. That then is the effect of Amendment No. 41. Amendment No. 40 simply paves the way to that. I beg to move Amendments Nos. 40 and 41 together.

The DEPUTY SPEAKER (Viscount Hood)

My Lords, I think that we had better move them separately because there is another Amendment between them.


My Lords, I apologise.


My Lords, I only hesitated because I was hoping that my noble friend Lord Morris would be here to shout "hooray", but he is not. However, I shall do so on his behalf. I endorse what the noble and learned Lord has said. I think that I can go even a little further than what he has already said by way of commendation of his Amendment, because it gets over a number of difficulties which arise in later clauses—Clause 36 and so on—about the extent of reserved matters.

What I think has really happened is that very probably nothing that was put forward by way of legislation or subordinate instrument in Edinburgh would, in practice, ever have gone beyond what the Government are now suggesting in the new paragraph 8; but there was always the possibility that it would with the wording as it stood. There was an area of dispute, or an area of possible dispute and litigation, which certainly greatly worried me. The Government have now curbed these provisions so that they are circumscribed in a way in which I should not have thought could cause any objection to anybody.

If I may say so, this is a substantial concession by the Government and it is one for which we are very grateful. As I said, it is probably not a matter that would have turned out to be of substance in the end. But when one is looking at the matter in terms of the words in the legislation, it is a great comfort to make sure that this has been cut down to what we, on this side, think is the proper size of the small amount of consequential legislation that can be allowed. It is now quite clear. It has also cleared our minds of a great many troubles. I am grateful to the Government for these two Amendments and I commend them to those on this side of the House as well.


My Lords, briefly, may I thank the noble Viscount, Lord Colville of Culross for drawing attention to the effect on later clauses. I should have paid tribute not only to his contribution at an earlier stage, but to that of the noble Lord, Lord Morris, and also to those of noble and learned Lords who are no longer present but who certainly helped us in arriving at this decision. I apologise for not referring to Amendment No. 40A; it happens to be one of the Amendments with which t am not dealing and I seem to be blind to its presence on the Marshalled List.

10.4 p.m.

Lord WILSON of LANGSIDE moved Amendment No. 40A: Page 47, leave out lines 5 to 13.

The noble and learned Lord said: My Lords, I move this Amendment with a certain amount of diffidence, not just because of the lateness of the hour, but also because the area of local government finance is not one in which, in the ordinary way, I move with great confidence. The area, of course, is one in which the noble Lord, Lord Kirkhill, has a knowledge and experience in Scotland second to none, unless of course it be that of the noble Lord, Lord Hughes, who happily for me, is no longer here tonight.

I put clown a similar Amendment in Committee seeking to elicit clarification as to the intent and meaning of paragraph 4(2) of the Schedule, because it had given rise to some uncertainties in industrial circles and also I think, among the local authorities themselves, or so I was told, although I have no first hand knowledge of that. The noble Lord, Lord Kirkhill, replying on that occasion, on 18th April, said, after referring to the intention made clear in paragraph 4(1) of the Schedule: … what sub-paragraph (2) of paragraph 4 does, and what it is strictly limited to doing, is to provide the Assembly with a perfectly appropriate competence to legislate in respect of the local government rating system which of course is specifically devolved in Group 5 in Part I of Schedule 10 ".—[Official Report, 18/4/78; col. 1039.]

Had that been all that paragraph 4(2) achieved, that might have been all right. But does it not go further? Does it not empower the Assembly arbitrarily to effect alteration in rates and thus to interfere with the local authorities in the exercise of their powers. Is that not involved in the terms of paragraph 4(2) of the Schedule? I ask the question tentatively at this stage. It certainly goes further in this way. It empowers the Assembly—and the noble Lord, Lord Kirkhill, said this—to alter the law in relation to industrial de-rating, so that here again there is another important area where there is perhaps scope for difference between the Assembly and Parliament at Westminster. That is all tentative and interrogative. But these doubts are raised.

The point is, were they discussed in the other place at all? Was any part of paragraph 4(2) discussed in Committee in the other place at any time? My recollection—the noble Lord, I am sure, will correct me if I am wrong—is that the only part of Schedule 2 which was discussed in the other place was paragraph 8. I suggest, with a certain diffidence, and somewhat tentatively, that it might be appropriate here to delete these important provisions in order to give the other place the opportunity, which it did not have the last time round, to discuss them.

I am reinforced in this view by what I find that the noble and learned Lord, Lord McCluskey, said on 4th May in dealing with an Amendment put down, I think, by the noble Lord, Lord Vaizey. Here I read from column 413 of the Official Report for 4th May. Your Lordships may remember the Amendment on powers of taxation. I felt myself, but then I have a nasty and suspicious mind about this Bill, that what the noble and learned Lord said in reply perhaps rather let the cat out of the bag. He said: It may well be that if the whole system of rating is reconsidered and changed"— and consider this in the context of paragraph 4(2) as it presently stands— and some form of local income tax introduced, that may be a candidate on to which the Scottish Assembly might wish to fasten.". Surely this area should be discussed in the other place. If this Amendment were put into effect, that would present the opportunity to the other place of doing that which was denied them on the first occasion. I beg to move.

10.12 p.m.


My Lords, we have been over this ground, in my view, in a substantial manner at the Committee stage. Nevertheless, the Amendment in the name of the noble and learned Lord, Lord Wilson of Langside, enables me to explain again to your Lordships' House the very limited purpose of paragraph 4(2). It is to restrict the competence which would otherwise be created by Group 5 in Schedule 10, which deals with local government and local government finance, to three specific areas. These are modifications of the existing rating system; the replacement of the existing rating system by a similar local tax—that is, one which can be levied only by elected local authorities and related to the occupation of property, and to making further modifications to a local tax of this kind.

The effect of the noble and learned Lord's Amendment is to deny the Scottish Assembly any competence whatever to legislate about local authority taxation. He feels that this would be the appropriate thing to do, but the Government, on the other hand, take the view that local government and its associated financial arrangements are matters which ought properly to be within the competence of the Assembly and the powers of the Scottish Executive.

As noble Lords will be aware there already exists a quite separate system of rating in Scotland which is based on different legislation to that relating to England and Wales. It has in the past been regarded, therefore, as a matter which has a particular significance in purely Scottish terms. It would surely be an unreasonable derogation from the scope of the devolution of local government and local finance if the kind of competence conferred by paragraph 4(2) were removed. It would create a boundary between devolved and non-devolved matters within the general devolved area of local finance which could not be rationally defended.

It would surely place a quite unreasonable burden on Parliament if all legislation on the rating system in Scotland could only be enacted at Westminster, having regard to the fact that other local government and local finance questions would be dealt with entirely by the Scottish Administration. That is not to say that the Bill is inadequate in the safeguards it provides in relation to local tax matters.

The Scottish Assembly will not have an unrestricted competence to legislate about local taxation, since the creation of an entirely new local tax could have serious implications for national finance or for national policies in reserved fields. What paragraph (4) does is to prevent the Assembly's competence in local government matters from extending further than legislation to modify the existing rating system or replace it with a closely analogous system.

As I have said previously, the Government believe the Schedule as it stands strikes the right balance between, on the one hand, the protection of essential United Kingdom interests in matters of national taxation and national financial management and, on the other, the reasonable expectations of the Assembly to be able to deal with essential features of the devolved area of local government and local finance. The deletion of subparagraph (2) would, in the Government's view, represent an unwarranted intrusion into that devolved area which would he likely to cause a sense of frustration in the devolved Administration and could provide occasion for argument and contention between the Administration and the Government.

I should add that the whole system of rating could be reconsidered and changed by Westminster legislation and Westminster legislation only; that must be emphasised. It was, as I recall, that particular point which my noble and learned friend Lord McCluskey was attempting to emphasise in the debate quoted by the noble and learned Lord, Lord Wilson of Langside. For the reasons I have given, I ask the House to resist the Amendment.


My Lords, I appreciated, even before I heard from the noble Lord, the technical objections to the Amendment, but I was disturbed about the possible implications of these provisions, as were a number of others, and I was disturbed by the possible implications of what the noble and learned Lord said on the occasion to which I referred. However, I am grateful to the noble Lord, Lord Kirkhill, for the assurances he has given with his usual clarity. I accept them and I beg leave to withdraw the Amendment.

Amendment, by leave withdrawn.

Baroness STEDMAN moved Amendment No. 41:

Page 47, line 26, leave out paragraph 8 and insert— ("8. Paragraph 1 above does not prevent a provision from being within the legislative competence of the Assembly if it is merely incidental to or consequential on other provisions and those other provisions are within that competence.").

The noble Baroness said: My Lords, my noble and learned friend Lord McCluskey spoke to this with Amendment No. 40. It is consequential and I beg to move.

Clause 19 [Scrutiny of Assembly Bills]:

10.19 p.m.

Baroness STEDMAN moved Amendment No. 42: Page 9, line 10, leave out ("it") and insert ("any of its provisions").

The noble Baroness said: My Lords, my noble and learned friend Lord McCluskey also spoke to this Amendment earlier. I formally beg to move.

Viscount COLVILLE of CULROSS moved Amendment No. 43: Page 9, line 11, 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)").

The noble Viscount said: My Lords, this is a point where, I am afraid, the happy discussions have not borne the fruit that has occurred in other respects. The scheme of Clause 19 is twofold. It applies to the stage before any Scottish Assembly Bill had been presented to the Queen for her Assent, and it provides an opportunity for two forms of scrutiny. The first form of scrutiny is one on the legal side, and that is contained in paragraph (a) of subsection (1). The second form of scrutiny is on the political side, and that is contained in paragraph (b).

We have, happily, reached accord on the existing scope of what is to be done under Clause 19(1)(a), in that we have just been discussing a number of Amendments which deal with what the Judicial Committee of the Privy Council shall consider and how it shall consider it when it is presented with the problem of a possible conflict between the provisions of a Scottish Assembly Bill, as it finally emerges from the Assembly, and the provisions of the present Bill, when it is an Act, which, after all, sets up the Scottish Assembly and gives it all its powers and its competence. It there is any doubt about the way in which such a Scottish Assembly Bill has been prepared, and about whether it is within the powers devolved by the Bill which we are now discussing, then the people who are very properly to pronounce upon the matter are to be the Judicial Committee of the Privy Council, because of course it is a matter of pure law that is involved.

We are all at one on that, and we have worked out the most happy solution as to how it should be done. As I said a few moments ago, the matter will be argued by Law Officers on both sides. When I said that the noble and learned Lord nodded his head very slightly in agreement with me. Now he is nodding even more firmly, so what I say is true. The question will be argued by Law Officers on both sides so that the full truth of the matter can be discerned and decided upon by the Judicial Committee. That is because there is the possibility of conflict between the provisions of this Bill, which provide the area in which the Scottish Assembly is allowed to legislate —the devolved matters—and the possibility that the Bills emanating from the Assembly may stray over the edges of the areas with which they are allowed to deal; or, in other words, get outside their powers.

Since this country joined the European Economic Community in 1972 there is another, and totally different, possible area of conflict. It is my fault that I did not sufficiently clearly indicate during the Committee stage of the Bill the area of dispute with which I was concerned. I have now put down a series of Amendments to try to deal with that. Amendment No. 43 is the first in this series, but I should like also to speak to Amendments Nos. 45, 47 and 49, because they are all part of the same scheme of Amendments which deal with this particular point.

What happens in this respect is as follows. Under the series of Treaties by which we are tied to the European Community there are a number of ways in which the deliberations, the decisions and the emanations of the Community affect us in this country. The Government have picked out in paragraph (b) of Clause 19(1) obligations which come from the Community and which are, as I understand it, similar to other international obligations which are matters as regards which the Government have to decide both whether and how to implement.

Those are the matters over which I have no disagreement with the Government at all, and I do not wish in any way to attack the solution that they have found. If they are dealing with European obligations, where it is a matter for the Government to decide how they are to legislate—whether by way of primary legislation, subordinate legislation, executive action, or whatever—in order to fulfil the duty that is imposed upon them from the Community in Brussels, then of course I agree that they should do it by the means they have provided for in the Bill at the moment—namely, by way of political activity alone. If, therefore, they see a Scottish Assembly Bill which, in the form in which it has emerged from the Assembly, is in some way in conflict, or appears, if it is passed, to be going to be in conflict, with one of the duties that have been imposed upon this country's Government by something to do with the European Economic Community or one of the other treaties, then of course I agree that the Government must handle it on the political front. They must be allowed to veto it by virtue of the Secretary of State's powers, the United Kingdom powers. I hope that I have spelt out two areas of vast agreement between myself and the Government.

There is, unfortunately, an area in between which is not covered in this Bill, although I think I persuaded the noble and learned Lord, Lord McCluskey, to agree with me at the Committee stage that it must have been by implication covered and dealt with by way of the latter Amendment which I talked about; that is, that the Secretary of State shall be allowed to override the Scottish Assembly Bill on political rather than legal grounds because the Government think there is conflict with one of the obligations that has come from Europe. The area of dispute between myself and the Government is a fairly narrow but important one. There are certain things that are done by the organs of the European Communities—and my noble friends Lord O'Hagan and Lady Elles know these all too well—which have not got to be implemented in this country either by primary or by secondary legislation. They automatically become part of the law of this land and become automatically enforceable in the courts and something upon which the citizens of this country can rely. They are ultimately part of the law of this country whether in Scotland, England or any other part of the United Kingdom. They are pure matters of law. They create rights or obligations, depending upon the side of the picture one is looking at. It is just as much a matter of law as is the question of whether something that has been done by the Scottish Assembly in a Bill is within the powers given to that Assembly by this Scotland Bill which we are now discussing.

In these Amendments I am saying that these are matters of law. Where we have already found matters of law—that is to say, the possibility that the Assembly Act is ultra vires the Scotland Act itself—we are sending it to the judicial machinery to decide. Here we have directly applicable European law. That is a matter of law. I say that that, too, should go to the judicial machinery to decide, and the Government say that it should not go to the judicial machinery; although it is a matter of law this is something upon which the political veto will be imposed without taking any court's advice.

You may ask what is the difference between taking the court's advice in this country and taking the advice of a well-informed Secretary of State? There is a difference and it is an important one. When one is talking about European law it is not a matter which is susceptible of final decision in this country. No Secretary of State has the final say. The people who have the final say are the European Court of Justice at Luxembourg. If it is a matter of the possibility of conflict between a directly applicable piece of European law and something which has turned up in a Scottish Bill which seems not to be compatible with it, this is not only a justiciable issue, a matter of law, but it is one upon which the final court of appeal is not in this country but in Luxembourg.

If you send that kind of dispute, as my Amendments would, to the Judicial Committee of the Privy Council for them first of all to look at and decide, they are specifically enabled to do so by my Amendment No. 49 which makes their proceedings legal proceedings and therefore attracts them into the system whereby under the Treaty of Rome a final court of appeal is required to refer its decision on this kind of thing to the European Court. It brings the whole thing into the ambit of the European Court of Justice, so that the decision on compatibility or otherwise can be made by the only people, under the European Treaties, who are enabled to decide it. No Secretary of State can make that kind of decision. He is subject to being overruled. If he makes it wrongly, he can be overruled later on at the suit of the citizen. The only people who cannot be overruled are the European Court, and these Amendments would enable the matter to go directly, via the Judicial Committee, to the European Court.

I should like this to happen, because if these Amendments are not passed the matter is not dead. Again, it will be something that the citizen can take up in private litigation if he wishes; and he can take it through the ordinary system of the courts to the European Court in the end. He will be able to go through the same process, but at a cost. Your Lordships should not suppose that it is cheap to take the matter up the appeal ladder to the European Court. Even if you get legal aid all the way, or even if your costs are paid, it is still a substantial financial burden on the litigant. I would say to your Lordships that, if we are going to have the Judicial Committee looking at conflicts between the Scotland Act and a Scottish Assembly Bill on vires, they should also look at matters which have nothing to do with the Government—they concern directly applicable law which applies to every citizen in the country —and they are possible conflicts between a Scottish Assembly Act or Bill and directly applicable European law.

I do not think I persuaded the Government at the Committee stage that this was the right way to do it, but I feel very strongly that we have a quite different system here, a quite different arrangement, whereby this should not be left to the Secretary of State. He is not the right person to decide it; he is not equipped to decide it; he has not the ability to go to the European Court, who alone can decide it. We ought to have it done through the judicial system, and that is why I put down this Amendment, which I beg to move.


My Lords, I think, as the noble Viscount has made plain, this is a matter of some complication. I can assure the House that we have looked at it with the greatest possible care, and I will seek to answer what the noble Viscount has said with the same degree of care. As the noble Viscount has himself pointed out, these Amendments differ from those which he tabled at the Committee stage; and, as he himself made clear, they now propose only that questions of compatibility of Assembly Bills with enforceable Community obligations, and the like, should be referred to the Judicial Committee. It is therefore conceded, as the noble Viscount has just made absolutely clear, that questions of compatibility with Community obligations other than enforceable Community obligations are for determination by Ministers, and not by the Judicial Committee.

We are agreed, therefore, that the point of difficulty concerns enforceable or, as they are sometimes known, directly applicable Community obligations; namely, those which without further enactment are given legal effect in the United Kingdom in terms of Section 2(1) of the 1972 Act. Although, as has been suggested by the noble Viscount and by the noble and learned Lord, Lord Diplock, in Committee, it is true that the question of compatibility between an Assembly Bill and an enforceable Community obligation could be regarded as a justiciable issue, in the same sense as the issue of legislative competence under Clause 19 is made justiciable, nevertheless the Government remain firmly of the opinion that there are overriding practical and political objections to referring such questions of incompatibility to the Judicial Committee at the pre-Assent stage.

Although the distinction which the noble Viscount has just described between Community obligations of direct application and other Community obligations is clear in principle, the working out of the distinction in practice, and its application to particular provisions of the Treaty, is a matter of some real complexity depending on the evolving jurisprudence of the European Court of Justice. A requirement to submit questions of compatibility with enforceable Community obligations to the Judicial Committee compels the Government to commit themselves to a view on this difficult question of direct applicability at a very early stage, when the real question with which the Government, in the exercise of their responsibility for observance of Community obligations, are concerned at that stage is the question of compatibility of the Assembly Bill with the obligation in question, whether or not it is an obligation of direct application. Under the Bill as it stands, if the Secretary of State, having taken advice on the matter, takes the view that the Bill is incompatible with a Community obligation, then he need not commit himself or the Government on the question of direct application by submitting or withholding the Bill from the Judicial Committee.

A requirement to submit to the Judicial Committee could also create problems where the Judicial Committee disagreed with the Secretary of State's opinion that the obligation in question was directly applicable, and was therefore obliged, perhaps after going through the procedure of an Article 177 reference to the European Court—the Judicial Committee would be obliged to decline to pronounce on the question of compatability. The pre-Assent scrutiny procedure would, in that event, have been considerably prolonged to no purpose, and the Secretary of State would he left to decide under Clause 19(1)(b) whether he should withhold the Bill from Assent on the ground of incompatability with a Community obligation not directly applicable.

In this connection, it is an important objection to these Amendments that in any such reference the pre-Assent scrutiny procedure would he liable to be considerably extended in any case where the Judicial Committee had to refer a question as to the meaning or direct applicability of a Community obligation to the European Court. Notwithstanding what the noble Viscount said at the Committee stage in an intervention, such a reference under Article 177 would, because of the mandatory requirements as to notice and time for representations by other Member States, necessarily take several months to reach a decision. On the basis of recent experience the minimum period is five months and the average about seven months. That period of time, which is substantial, would be in addition to any other time already occupied by the reference to the Judicial Committee itself. There could be further problems where an Assembly Bill was thought to be incompatible with two or more Community obligations, including both directly applicable and others. The decision whether to submit the Bill for Assent ought to be the decision of the Secretary of State based on a consideration of the Bill as a whole.

Moreover, the decision whether to withhold a Bill from Assent also depends on the second factor mentioned in Clause 19(1)(b); namely, whether the Government think it more appropriate that a particular Community obligation should be implemented by Parliament instead of by the Assembly. 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, which is a matter the noble Viscount did not take into account. This mixture of juridical and political factors makes it impracticable to regard the question of compatibility as an isolated justiciable question which must be referred to the Judicial Committee. It is not in our view as the noble Viscount described it, simply a question of law.

It should also he borne in mind that the decision of the Judicial Committee on such a reference would carry much less weight than its decision on a purely domestic issue of legislative competence. The decision could not he relied on as producing finality, unless in the (unusual) case where the decision turned upon the opinion of the European Court on the reference of a particular question to them by the Judicial Committee. In most cases where the Judicial Committee had given clearance to an Assembly Bill it would still be open to any litigant after its enactment to challenge it and have a question of European law referred to the European Court: no provision about finality in the Scotland Bill could take away this right under the Community Treaties.

In all the circumstances, it is impracticable to try to separate out the juridical from the political elements in the question of compliance with Community obligations. Moreover, every reference to the Judicial Committee on compatibility with Community obligations would involve a potential reference to the European Court under Article 177. It would be a novel departure in Community practice—on which we could not embark without considering its full implications for our relationship with the Communities—to have the European Court act thus as a kind of advisory body for the purpose of the procedure leading up to the enactment of domestic legislation, and could lead to pressure for similar procedure for Westminster Bills.

That is a point that I made at Committee stage; that in fact there is no similar procedure for Westminster Bills, and I did not understand the noble Viscount to propose an Amendment of the European Communities Act 1972 to introduce such a procedure for Westminster Bills. It is our view that it is the task of the Government, who are primarily responsible for the observance of our Community obligations, to make their own assessment of the compatability of prospective domestic legislation with Community obligations, and to allow to be enacted only what they themselves believe to be so compatible. This is in keeping with the policy of the Bill to retain overriding responsibility for matters related to Community obligations notwithstanding the grant of certain powers in relation to such obligations to the devolved Administration.

That is the considered answer to the Amendments, but there are two drafting points to which I ought to draw attention. Mention has already been made of the absence of provision in these Amendments for dealing with the consequences of a finding of incompatibility by the Judicial Committee. That is not something which the noble Viscount has sought to deal with in this series of Amendments. The second point is this: The main Amendment refers to any enforceable Community right, power, liability, obligation or restriction (as defined in section 2(1) of the European Communities Act 1972)", It is, however, unnecessary to go beyond a reference to incompatibility with obligations. The object is to ensure that Assembly Acts are not passed which are inconsistent with Community obligations —nothing more. Community Instruments may confer rights or powers, or impose restrictions, which are directly applicable to bodies or persons within the Member States; hence the form of words used in Section 2(l) of the 1972 Act. But in the context of pre-Assent scrutiny of Assembly Bills, the Government are concerned only to ensure that our obligations under the Treaties—whether direct or in relation to any such rights, powers, and the like—are duly observed in relation to devolved matters.

Hence the simple reference, to obligations only, in the other clauses dealing with the Communities—Clauses 37(2), 38(2) and 62(3). It is in any event unnecessary to refer in the Amendments to Section 2(1) of the 1972 Act as, by Section 1(2), the meanings given in that Act apply also in any future Act. I have endeavoured to give a careful statement of the position, and I hope that, in the light of it, the noble Viscount will not feel that he should press these Amendments.

10.44 p.m.


My Lords, it is surprising the way nobody else seems to want to join in on this topic. I cannot think why! May I say to the noble and learned Lord, Lord McCluskey, that if it is a matter of drafting, and that is all he has by way of complaint about my Amendments, I do not consider that I have done too badly. I shall leave it to the Government, if the occasion should arise, to correct them on a subsequent occasion.

What I think perhaps I ought to say by way of answer to the noble and learned Lord is this: I think it would be worth while just looking for a moment at what Clause 19—particularly with the Amendments with which I hope we all agree— will provide. It will provide under subsection (1)(a) that, if the Secretary of State is of the opinion that a Scottish Assembly Bill is not within the legislative competence, then that is something he has to send to the Judicial Committee.

The Government have been good enough to go a bit further than that. We have on the Marshalled List Amendment No. 46, which we shall reach in a moment, which provides that the Secretary of State may also refer to the Judicial Committee a matter about the vires of a Scottish Assembly Bill, if he is in sufficient doubt as to whether it is within the terms of the Scottish Bill. I know that the whole realm of European law and its impact upon the citizens of this country and upon the actions that are brought in the courts of this country is ever evolving, and the decisions of the European Court of Justice are creeping further into the lives of the people who live here. That is part of the fact of belonging to the European Community. However, all we are talking about here is a situation where either the Secretary of State is very sure that there is an incompatibility with a directly applicable piece of European law, or he has a real doubt. Under Amendment No. 46, he has not got to speculate about it; he has not got to send up a kite or some trial balloon to see whether by any chance there is an area into which the European courts might find their way, and where they will bestow rights upon the citizens of this country which nobody would have suspected they would ever have.

It is nothing like that. All he has to do, under these Amendments, is to act where he is fairly sure, or to act where he has a genuine doubt. The noble and learned Lord says that I ought not to have mentioned rights and all the other points that I mentioned in my Amendment—which I took straight out of Section 2(1) of the European Communities Act—and that all we need to talk about are obligations. That is just what am complaining about. The noble and learned Lord looks at this only from the point of view of the Government and the Government machine. It is only the Government machine which is involved with obligations. Of course, they are involved with obligations: they are very important to them. They might themselves get the United Kingdom hauled up in front of the European Court under a different Article in the Treaties.

I am not talking about those matters: I am talking about matters which the Government do not need to do anything about at all. They do not have to take any action. These are matters directly applicable to the citizens of this country, without the Government having to intervene in any way. These are rights; these are duties; these are liabilities and powers as well as obligations; and these are the matters I would suspect that we need to have dealt with because, after all, the noble and learned Lord agrees that they are justiciable.

This point also answers (does it not?) the question of United Kingdom uniformity. Of course I agree that, if you are looking at this from the Government's point of view, you must make sure that you veto an attempt by the Scottish Assembly to pass some measure which purports to implement an obligation which comes from the European Community, which is only enforceable by means of legislation in the domestic country, or subordinate legislation. You must not let them do that if they are going to do it in a way that is different from the way we do it in Westminster. But I am not talking about those things. Those are the matters which go through Government and which I concede should remain with the Government. I am talking about directly applicable law which has nothing to do with uniformity, because it is uniform already. It applies to everybody.

What about the time, which the noble and learned Lord talked about? All right, it may take some time. I know that the Judicial Committee is going to be very rapid. But must we risk being wrong, because it will take a little time to discover whether we are right? Must we say, "We cannot set up any machinery whereby a matter can be decided before the Scottish Assembly Bill is ever enacted, because it will take too long to do this? We have got to leave this for the citizen to pay for afterwards, out of his own pocket, because we cannot afford the time at Westminster or Edinburgh to let this be tested"? I should have thought that this was a very poor argument.

After all, in the end there are two things that might happen. The European Court might say, "After all, this was not incompatible with a directly applicable piece of European law", in which case the matter would go ahead. Or they might say, "Yes, it is incompatible", in which case I should have thought that the Judicial Committee would have been bound so to find, and then we should have a situation where a Bill could not be presented in the future for Royal Assent. What are we being presented with instead? We are being told that where there is a question of doubt, or even indeed a question of certainty—but particularly where there is a question of doubt—we shall not be able to give the Scottish Assembly an opportunity to have the allowability of its Bill tested in the European Court, just in case it might take too long, just in case it might be right and it had done something that was correct.

For all I know, we are simply providing the Secretary of State with a power of veto even where there is a doubt, just so that the Scottish Assembly may not be proved to be right in the courts. Is that

Resolved in the affirmative, and Amendment agreed to accordingly.

11.1 p.m.

Lord McCLUSKEY moved Amendment No. 44:

the way to do it? This is justiciable. It is the same as the question of vires under the Bill. This affects the citizen directly the same as the matters that are provided for for the courts to decide under the Bill. I suggest that this should be dealt with in the same way as the internal vires, under Clause 19(1)(a) of the Scottish Assembly Bill. For all the blandishments of the noble and learned Lord, and with all the gratitude that I express to him for having looked so earnestly and carefully at this, I am afraid that I cannot be satisfied with the answer that he has given me.

10.53 p.m.

On Question, Whether the said Amendment (No. 43) shall be agreed to?

Their Lordships divided: Contents, 49: Not-Contents, 36.

Amherst of Hackney, L. Forbes, L. Mowbray and Stourton, L. [Teller.]
Balerno, L. Fortescue, E.
Belstead, L. Glasgow, E. Newall, L.
Campbell of Croy, L. Glendevon, L. O'Hagan, L.
Carr of Hadley, L. Glenkinglas, L. Perth, E.
Carrington, L. Gray, L. Redesdale, L.
Cathcart, E. Harmar-Nicholls, L. Sandford, L.
Colville of Culross, V. Henley, L. Sandys, L.
Cork and Orrery, E. Hood, V. Selkirk, E.
Craigmyle, L. Hylton, L. Skelmersdale, L.
de Clifford, L. Kilmany, L. Strathcona and Mount Royal, L.
Denham, L. [Teller.] Kinross, L. Tweeddale, M.
Elles, B. Linlithgow, M. Vernon, L.
Elliot of Harwood, B. Lyell, L. Vickers, B.
Elton, L. Margadale, L. Ward of North Tyneside, B.
Ferrers, E. Masham of Ilton, B. Wilson of Langside, L.
Ferrier, L. Mottistone, L.
Balogh, L. Houghton of Sowerby, L. Peart, L. (L. Privy Seal.)
Birk, B. Janner, L. Shepherd, L.
Boston of Faversham, L. Kaldor, L. Stedman, B.
Brown, L. Kirkhiil, L. Stone, L.
Davies of Leek, L. Llewelyn-Davies of Hastoe, B. Strabolgi, L. [Teller.]
Davies of Penrhys, L. Lovell-Davis, L. Taylor of Blackburn, L.
Donaldson of Kingsbridge, L. McCluskey, L. Thomson of Monifieth, L.
Gaitskell, B. McGregor of Durris, L. Thurso, V.
Gregson, L. Monson, L. Wallace of Coslany, L.
Hatch of Lusby, L. Northfield, L. Wells Pestell, L. [Teller.]
Hale, L. Oram, L. White, B.
Harris of Greenwich, L. Parry, L. Winterbottom, L.

Page 9, line 12, leave out ("it") and insert ("that provision").

The noble and learned Lord said: My Lords, Amendment No. 44 is consequential. I beg to move.

On Question, Amendment agreed to.

Viscount COLVILLE of CULROSS moved Amendment No. 45: Page 9, line 12, after ("competence") insert ("or is so compatible, as the case may be,").

The noble Viscount said: My Lords, this is a consequential Amendment. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 46: Page 9, line 13, leave out from ("decision") to first ("is") in line 15 and insert ("and he may also do so if he is of opinion that there is sufficient doubt about it to justify the reference; but no such reference shall be made in a case falling within subsection (2) below or section 36(3) of this Act. (2) If, after considering a Bill in pursuance of subsection (1) above, the Secretary of State").

The noble and learned Lord said: My Lords, this may take a little time, but I am speaking quite literally; I do mean a little time. This Amendment meets a point raised by the noble and learned Viscount, Lord Dilhorne, in Committee, namely, that provision should be made to enable the Secretary of State to refer questions whether provisions in Assembly Bills are intra vires to the Judicial Committee if he is in doubt and his doubt falls short of a firm opinion that the provisions in the Bill are ultra vires. This was referred to by the noble Viscount, Lord Colville of Culross, when speaking to the last Amendment.

Thus Clause 19, as amended in this way, would provide that the Secretary of State is under a duty to refer to the Judicial Committee any provisions of an Assembly Bill, if he is of opinion that they are outside legislative competence, and may refer provisions of a Bill if he is of the opinion that there is sufficient doubt to justify a reference. The Amendment to Clause 19 also provides that, if the Secretary of State is proposing to override an Assembly Bill on policy grounds under Clause 36, he shall not make reference to the Judicial Committee on vires grounds. This is a drafting change, not a new provision; it was previously contained in Clause 36(4) which it is now proposed to delete. In due course we shall come to Amendment No. 100 which does exactly that, but for the moment I content myself with moving Amendment No. 46. I beg to move.


My Lords, I shall also take only a very little time just to say that, quite regardless of what one may think about the European traditions in the context in which I referred to this, it seems to me that this is an admirable improvement to the Bill. Although it may have come from the noble and learned Lords on the Cross-Benches, I most warmly support it, not least because it gives the opportunity for almost anybody in a position to do so to suggest a doubt to the Secretary of State. It could come from Parliament or from anybody else in a responsible position. This also is a matter to which I had some Amendments tabled and which is met in essence by this particular provision. So, although the primary person who is satisfied will, I am sure, be one of the noble and learned Lords on the Cross-Benches, it has certainly given me very great satisfaction and I am grateful to the Government for it.

On Question, Amendment agreed to.

Viscount COLVILLE of CULROSS moved Amendment No. 47: Page 9. line 16, after ("obligations") insert ("other than an enforceable Community obligation").

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 48: Page 9, line 23, leave out subsection (2).

The noble and learned Lord said: My Lords, I beg to move Amendment No. 48. This is consequential and was spoken to in connection with Amendment No. 38.

On Question, Amendment agreed to.

Viscount COLVILLE of CULROSS moved Amendment No. 49: Page 9, line 26, at beginning insert ("A reference under this section shall he deemed to be legal proceedings and").

The noble Viscount said: My Lords, I beg to move Amendment No. 49. This is consequential, but the point is to make sure that proceedings in front of the Judicial Committee shall be deemed to be legal proceedings, so that they can be referred to the European Court for the purposes that I have mentioned.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendments Nos. 50 to 52: Page 9, line 28, after ("that") insert ("any provision of"). Page 9, line 30, leave out ("it") and insert ("the Bill"). Page 9, line 30, at end insert ("and if the Judicial Committee decides that a provision is within the legislative competence of the Assembly the decision shall he binding in all legal proceedings").

The noble and learned Lord said: My Lords, with the leave of the House, I beg to move Amendments Nos. 50, 51 and 52 en bloc. They are all consequential on Amendment No. 38.

On Question, Amendments agreed to.