§ House again in Committee.
§ Clause 60 [Reservations]:
Lord HARMAR-NICHOLLS moved Amendment No. 316:
Page 29, line 32, at end insert ("and neither the Assembly nor the Executive shall have any role, formal or informal, in the determination of British foreign policy").
§ The noble Lord said: During the adjournment I have been wondering how it is that the Government have been able to have such an easy passage against the very formidable arguments that have been put up on the various Amendments, and I suddenly discovered the reason. In this Chamber we have something on the Government Front Bench that they do not have in the other place. Here we have a team who are able to show honest innocence and charm, and that is a secret weapon that will get people over all sorts of problems.
§ In a way, I think that my Amendment and the arguments that go with it follow on from the last Amendment which was moved and then withdrawn by my noble friend. It will be within the recollection of some of your Lordships that I tried to 1082 save time by talking on this Amendment along with my Amendment No. 307 which was tied up with a group of Amendments put by my noble friend Lord Drumalbyn. But he objected to that, and so I half presented my argument on this, and then ceased because it was not the general wish. However, I think it was perhaps tentatively agreed that I would use the No. 307 arguments on this Amendment, No. 316. They do run together and it might be helpful to do that, particularly as there is no question of my even contemplating pressing it to a vote. However, I should like to see the reaction to what I think are fundamental points behind it, so that one can consider what one might do when we come to the Report stage, when I hope there will be a fair amount of voting. I believe that we have a duty to send this Bill back to another place with enough "hooks" on it to hang some of their hats, which the guillotine prevented them from doing before.
§ I think this particular Amendment, No. 316, comes very much into that category. The objective here is not simply to keep the Assembly in its place. All my arguments so far have been intended to let it be known what the Assembly is going to be and what its powers are, so as to avoid any risk of conflict later. Not only that, but my main purpose in moving this Amendment is to protect the position and rights of Scotland's Members of Parliament; that is to say, the Members who sit in the Westminster Parliament and whose role is likely to be very much damaged by this Bill.
§ My Amendment No. 307 provided that no powers, rights or duties, whether legislative, executive or representative, shall be exercisable by a Scottish Secretary or by any Members of the Assembly if they relate to matters which are not devolved or which are properly the province of a Minister of the Crown or of Members of Parliament representing Scottish constituencies. That was on the general proposition, which I think is sound, that Members of Parliament are very jealous of their rights, and rightly so, and they are very jealous of their prerogatives, and rightly so. Those of your Lordships who have served in another place will know that on the occasions when someone has raised perhaps even a very small matter which relates to somebody else's constituency the sitting Member 1083 in question has resented very much what he considers to be an instrusion into his territory and his powers.
§ There is a real risk that you will have a fighting conflict between elected Members of the Assembly and elected Members of the Westminster Parliament. I am myself convinced that if this Bill ever becomes an Act the intrusion that is being allowed—shown very forcibly in the last group of Amendments we discussed—will bring about a reaction from the Westminster Members of Parliament in a way that may well injure the working of Parliament so far as it affects Scotland.
The Amendment I am now moving proposes, at the end of line 32, on page 29, insertion of the following words:
and neither the Assembly nor the Executive shall have any rúle, formal or informal, in the determination of British foreign policy".
When I tried to present part of this argument earlier in regard to another Amendment the noble and learned Lord said—and here I shall paraphrase him—that he had not such grandiose ideas as I had as to what this Bill would do. Obviously what he meant was: "The very idea! How ridiculous to talk about foreign policy coming within the powers of this delegated Assembly". On the face of it, it is rediculous. I hope it is ridiculous, and I hope we can amend this Bill in order to demonstrate that it is ridiculous; but as it stands at the minute, and according to the mouths of some of the senior Ministers of the Government, room is left for doubt.
§ I find that the Foreign Secretary, a colleague of the noble and learned Lord the Lord Chancellor, in the Cabinet with a rank which I suppose is in the top four in terms of importance and priority, speaking in Edinburgh on 25th November 1977, said something to the effect that the Assembly should be consulted, as an Assembly, in respect of the United Kingdom's relations with the European Community. I would commend your Lordships to column 324 of Hansard of another place, on 29th November last, where the honourable Member for West Lothian, Tam Dalyell, reacted in a fighting way. Indeed, it is on the record that he spoke to the effect that when he heard the report of this speech by the Foreign Secretary, in which he was 1084 virtually saying that the Assembly would have power to go direct to Europe and have something to do with influencing our policy vis à vis the Brussels decisions, he almost cut himself while shaving. He was very disturbed about that, and the column that I have mentioned will show your Lordships how he reacted.
§ With such words as that on the record from someone as important as the Foreign Secretary, I believe it is important that in this Bill we should spell out beyond any possible doubt that there can be no opportunity for the Assembly to go direct to Europe or to deal with any of the other matters that come under the wide umbrella of foreign affairs. When one looks at my Amendment alongside that speech made by the Foreign Secretary, one sees that it is not quite so ridiculous or scaremongering as it might appear, standing on its own on the Marshalled List. However, a broader principle is at stake here.
As I said, Amendment No. 307, which I take along with this, takes care of the residual rights of Members of Parliament as regards their perks and the formulation of foreign policy or on matters of State. We have not seen that it is expressly excluded from the Bill as it now stands. I have no doubt that the noble Lord who will reply will say that Clause 60(2) as it now stands is enough. The words are:
To the extent that a matter involves the conduct of relations with any country outside the United Kingdom it is not a devolved matter".
He would say that you could not have clearer words; but there is a little doubt about whether you could have clearer words. The corresponding clause, Clause 29, in the Wales Bill, which we shall have before us in the near future, going through a rigmarole rather similar to this, reads—
The Assembly shall not in the exercise of its functions conduct relations with any country outside the United Kingdom".
Different words. If they are intended to mean what I have no doubt I shall be told that they are intended to mean, that it excludes any possibility, why different words? I shall have to ask the noble and learned Lord to explain the distinction between the two.
§ It ought to be noted that in the Scotland and Wales Bill, the first Bill to be brought forward, the words used were the same as we have in this Bill now. Why were 1085 different words brought out? When one is arguing the necessity for spelling this out to make quite clear that there is no question of their infringing the rights of the Government in the case of foreign affairs and of Members of Parliament in relation to all other matters, one ought to remember —and I paraphrase, as I gather one cannot quote them—the words of John Mackintosh when he was speaking on 11th January. As a Scots spokesman, and one who has a lot of sympathy with devolution, he was saying something to the effect that the whole future of the Secretary of State is in a most unsatisfactory position. He said that his guess was that if this Assembly is in any way successful and develops political power and punch of its own—which I have no doubt it will—whoever is the First Secretary will be called, and will call himself, Prime Minister of Scotland.
§ These are the words of the Scottish Member, and I am inclined to agree with him. He said that he will want to get the powers that go with this sort of thing. He said that similarly Sir Brian Faulkner in Northern Ireland had claimed that he ought to have such powers when he was the Chief Executive and looked upon there and reported in newspapers as Prime Minister. All sorts of influences went with that title which no doubt were not intended but which developed and which actually existed.
§ One can well imagine that if there is a crucial shut-down of a major industrial plant in Scotland, the Secretary of State, acting as a sort of Prime Minister, will not be satisfied with wanting to make his case to the Secretary of State for Scotland. At any rate, as I said on the last group of Amendments, the powers of the Secretary of State for Scotland are being reduced so much by the various clauses which we have already passed in this Bill that he is going to be much of a eunuch when compared with his situation today.
§ One can see that the Assembly, which would claim that it was an elected Assembly, with the Secretary of the Assembly deemed to be almost the Prime Minister, will want to by-pass all the normal things. He will so claim, and he will have a good case in the eyes of the ordinary people of Scotland who would be concerned if this major industrial plant was shut down. I do not think you will 1086 find that the Scottish Secretary will walk over the street to the Secretary of State; he will be making his way to No. 10, and the crutch that he will have with him from the elected Assembly will eventually mean that it will garner all sorts of powers which I believe will interfere with the relationship which Members of Parliament in Westminster have always had, and ought to have, if we are to have the sort of Government which is free from the conflicts which nationalism brings with it.
§ If the Assembly is allowed to go to Brussels, as the Foreign Secretary said he could envisage, why, when it is having some problem over agriculture in Scotland, will it not want to go direct to the Minister of Agriculture in Westminter, again bypassing the Secretary of State? If it has views as to where the nuclear plants are going to be, there again it will find itself taking on the powers of a Government which perhaps are not intended in this Bill, but where the wording is so loose that, bearing in mind the realities of the situation, this will grow up.
There is another example that clearly demonstrates that the Government's acceptance of the Scottish Administration, as we envisage it from the words in this Bill, may interfere with British foreign affairs, certainly informally, because we have Mr. John Smith, the Minister of State at the Scottish Office, when he was answering John Mackintosh on 11th January in another place, saying this at col. 1727:
If we devolved agriculture, the Minister of Agriculture would be representing the Scottish Assembly's interests when matters were discussed in the EEC. He might take with him a representative from the Scottish Administration, but that would be on a grace and favour basis rather than because the Scottish Administration had a right to be represented,".
But Members of this House were not horn yesterday. We know from experience that what becomes a practice very soon becomes a right, and this grace and favour accompanying a Minister would very soon, with the punch that the elected Assembly gives it, mean that it was taking it on, or if it was not allowed to take it on, the very fact that you were refusing it the right to do things which by practice had become almost a right, would be adding to the conflict which I expressed when this Bill first came before your Lordships' House.
§ In any case if an Assembly representative is to be taken to Brussels for agricultural talks, why cannot he be taken for defence talks? Why are the representatives not going to be taken to Strasbourg where the political talks go on? They can argue that politics in Strasbourg affect us. Why cannot they be taken to Luxembourg when the Coal Community questions are being discussed? Scotland has a great interest in coal. Once it is admitted that they may be taken to Luxembourg because of agriculture, the door is being opened for it to come much within the remit that is included in my Amendment.
§ However much your Lordships may have smiled at what seems to be the size of my Amendment in relation to what the Bill intended, when it is examined and when you put alongside it the words used by the Foreign Secretary and the words used by the Secretary of State for the Scottish Office; when you put alongside that your own experience in politics, where you see that a thing which starts as grace and favour develops into a right and becomes accepted, and bearing in mind that these things are not dealt with smoothly, that the conflict because of nationalism that can be built up behind them is so immense, you may realise how vital it is that we do not put on one side this sort of Amendment. We should give some thought to it with a view to writing into the Bill before it becomes an Act something that will prevent this happening without causing acrimony to those who may well be refused the power. So I should like to hear the noble and learned Lord's reaction.
§ I suppose that my argument is addressed just as much to my noble friends on the Opposition Front Bench as it is to the Government, because I have not seen any sign that they recognise the risk behind a possible extension of the Assembly's powers. So my appeal to them, when they are considering which of the Amendments will be submitted, voted upon and, I hope, carried, in order to give the other place a chance of having another look at them, is that the kind of argument that I have used and the kind of subject that I have chosen should commend themselves to them.
§ We know that our decision will make this Bill an Act. We know that the most 1088 we can do is to make suggestions and to give time to another place to do something about them. I believe that on this topic the elected Chamber at the other end of the corridor ought to give a considered view before we allow a semi-open cheque which carries so much danger to go through. I beg to move.
§ 8.51 p.m.
§ Lord MACKIE of BENSHIE
In spite of the fact that there are important and serious Amendments waiting to be discussed, I feel that I must say something about this incredible extension of the concerns of the noble Lord, Lord Harmar-Nicholls. The Amendment itself is quite impossible. If you are to exclude all informal interest in foreign affairs, you will need to have control over the thoughts and dreams of the Assembly, which will be a little difficult to apply. I should like to treat the Amendment, and the fears of the noble Lord, Lord Harmar-Nicholls, seriously because he is a kind of embodiment of the doubts which many people in England have about this Bill. He extends them too far, but his doubts are very real and they are felt by a great many people who have not thought about this subject as much as some others.
It is perfectly true that, as soon as you provide an Assembly for Scotland, you provide a focus for Scottish interest in a great many matters outside those which are devolved. There is no question at all in my mind that, from this rather muddled Bill, we shall progress to some form of federal system which will be logical and reasonable, although I do not say that the whole of this Bill is logical and reasonable. But it is a necessity that we should try, in a British kind of way, to start the devolution process. The noble Lord's feelings are natural in someone who believes deeply in the unity of the kingdom, and who perhaps does not have enough knowledge of the feelings of the Scots—I do not say that in any derogatory manner at all—about this matter.
The best example that we have before us is Northern Ireland. I am not prigging —I hope that your Lordships understand that word—the noble Lord, Lord O'Neill, to speak. But that example is before us and he is here, and I hope that your Lordships will hear him speak. He will have to do so after that. But it is a fact that there 1089 we had a focus in a country of high feeling, which is very conscious of its own identity, and which seemed to operate—as I have said many times during this Committee stage—in a very competent manner in the field for which it had legislative and executive responsibility. Only the noble Lord can say how their proper feelings about foreign policy should be expressed.
Nobody can stop an Assembly, or any individual, from thinking about foreign policy in relation to the country as a whole. What we must eventually arrive at is a federal system which will properly give expression to that, and that is what I hope will come out of this Bill. Many people on the Conservative Benches have said to me—
§ Lord ROBBINS
I wonder whether the noble Lord can inform the House of any federal system where the states debate foreign affairs.
§ Lord MACKIE of BENSHIE
I do not quite understand why the noble Lord should put that question, but I do not know of any. But the federal system is how the states, and the electors therefrom, take an interest in foreign affairs. I have no doubt that members of states' legislatures will have an interest, but it will be expressed through the federal Members of Parliament. What I am saying is that you cannot stop this interest by writing anything into the Bill. The only way of stopping it is by giving expression to people's interests in a proper federal system, and that is what we shall eventually work towards in our British way.
I have great respect for the noble Lord—although I must say that, at times, I could hear him less—and for his long experience and his genuine feelings. But what I say to him is that his fears are exaggerated, and that there is no question but that the majority of Scots—quite apart from how they feel—appreciate with their heads that the United Kingdom must be one.
§ Lord WILSON of LANGSIDE
The noble Lord, Lord Mackie of Benshie, expressed a reluctance to speak for too long, because of the important and serious Amendments which follow this one. I share his reluctance, but I am bound to say that I regard this Amendment as 1090 one of equal importance and seriousness. The noble Lord, Lord Mackie of Benshie, referred rather patronisingly—if I may say so, with no unkindness or asperity—to the noble Lord, Lord Harmar-Nicholls, as expressing some of the doubts that people in England, these lesser breeds, feel about this subject. I can assure your Lordships that the noble Lord, Lord Harmar-Nicholls, shares the doubts and reservations of many people in Scotland. I, too, live in the countryside and I know of many people, not only industrialists, who are seriously and gravely concerned about the implications of this measure. Their concern is very widespread indeed. So let no one imagine that the noble Lord, Lord Mackie of Benshie, is well founded in suggesting that the people of Scotland who are aware of the implications of this measure are wholeheartedly behind it.
We come back to the same point every time. The noble Lord, Lord Mackie of Benshie, referred to this rather muddled Bill. That is not the way to make successful Constitutions. How often do we need to say this? In some ways—again, I say this without asperity of language or unkindness—the noble Lord, Lord Mackie of Benshie, reminds me of the other Alice—not Lewis Carroll's Alice, but the Alice of the late Mr. Noel Coward, who was always "at it again". He referred, again, to what he acknowledges to be a muddled Bill, and he does not seem to appreciate that that is the worst possible way of going about the successful rearrangement of the conduct of our constitutional affairs. All the experts are agreed about this. I am not one always to accept the views of experts, but in this context I think that they are right.
The noble Lord, Lord Harmar-Nicholls, referred to the concern which he felt, and which lay behind this Amendment, for the feelings of the Members of the other place. This is rather diverting, because they do not express any great concern for our place in the state of the nation. Nevertheless, it shows a proper Christian charity that he should feel that we ought to have this in mind. But having said that, this is a very serious point which will undoubtedly cause great conflict.
The only point about the Amendment that I regret is that defence was not also included. It has been admitted in this 1091 Committee that committees may be formed by the Assembly to discuss these matters. I cannot see how that will contribute to the better government of this country in relation to foreign affairs or in relation to the nation's defence. I support this Amendment.
§ 9 p.m.
§ Lord O'NEILL of the MAINE
I had no intention of taking part in this little debate, but from time to time people speak with great knowledge about Northern Ireland. My noble friend and colleague Lord Drumalbyn was telling your Lordships' Committee the other night about the annual wrangles which take place with the Treasury over Northern Ireland finance and, as somebody who had been Minister of Finance for seven years in Northern Ireland, I had to intervene to tell him that this is completely and utterly untrue. It was just something which came into my noble friend's speech.
Tonight we have been told about Sir Brian Faulkner. There was, of course, nobody who was called Sir Brian Faulkner. It was Mr. Faulkner who was Prime Minister of Northern Ireland for one year. After Stormont was dissolved by the Conservative Government, an Assembly came into existence later on, and Mr. Faulkner became the Chief Executive. While Mr. Faulkner certainly may have had ambitions to become Prime Minister again, he loyally observed his new title as Chief Executive of the Assembly. This is one of the reasons why during the Second Reading of the Bill I suggested that the term "Chief Executive" would be more appropriate for the head of the new Executive and Assembly in Edinburgh.
However that may be, might I repeat once again what I said earlier when we were discussing the terrible possibility which the noble and learned Law Lords were discussing—a discussion in which I was quite unfit to take part—that the Assembly might pass a measure which was ultra vires. I mentioned at the time that no Bill was ever introduced into the Northern Ireland Cabinet unless it had a certificate from the Northern Ireland Attorney-General to say that it was intra vires. In just the same way, I am in no doubt whatsoever that if a Member of the Scottish Assembly puts down a 1092 measure with regard to foreign affairs or defence, the head clerk, or whatever he may be called in the Assembly, will say, "You can't discuss defence ". In my 25 years as a Member of the Northern Ireland Parliament I never remember defence or foreign affairs being discussed. In a sense, they would be ultra vires. Therefore, I beseech noble Lords to believe that some of the fears which have been expressed during the passage of this Bill are not realities.
We have been discussing also the great powers and the great success of the Secretary of State for Scotland. I remember that at one time there was a movement among my Back Benchers to have a Secretary of State for Northern Ireland. This was at the time when the Parliament of Northern Ireland existed. I always maintained, and I always told them, that it was far better that we should be represented in the British Cabinet by the Home Secretary, who is, after all, one of the most senior Members of the Cabinet, rather than that we should have a Secretary of State for Northern Ireland who would be junior to and less important than the Secretary of State for Scotland. In just the same way, if one looks at Canada one finds that Ontario does not have a Secretary of State for Ontario in the Ottawa Parliament. The idea that Scotland can be represented only by a Secretary of State in London and that this is the way to run Scotland is not, if one looks at federal systems around the world, really necessary.
I believe that a Scottish Assembly will work. I believe also that it will stick to the rules—I am sure Scottish people will support that statement—and that the Assembly will work. Rather than that there should be this niggling away all the time, if only this Parliament could be generous and set up the Assembly in a spirit of generosity, I believe that it would be repaid one hundredfold. I say this in all sincerity. I did not vote yesterday on the question of forestry because Northern Ireland forestry has been absolutely magnificent; it has been superior to anything in the rest of the United Kingdom. However, generosity is what should be exercised, for I believe that it would be repaid one hundredfold.
§ Lord WILSON of LANGSIDE
I acknowledge the great wisdom of every- 1093 thing that the noble Lord has said in relation to Northern Ireland. However, I wonder whether he would acknowledge that the political make-up of Stormont is a little different from that which at one stage, at any rate, might have been anticipated for the Royal High School under the Calton Hill in Edinburgh, where it might be more difficult to persuade people that it would not be in the national interest to discuss the Polaris base at Holy Loch? The noble Lord will perhaps take my point. I imagine that it would be easier to suppress in Stormont any discussion of the circumstance that at one time at least Northern Ireland was the north-west flank of NATO. The constitution of the Scottish Assembly might be such as to raise questions which would be against the public interest. They can be discussed in the Westminster Parliament and they are discussed here, certainly, but I do not believe that they should he discussed in the Scottish Assembly.
§ Lord O'NEILL of the MAINE
While I accept to some extent the noble and learned Lord's remarks, may I return to what I said earlier: that nothing will defuse the Scottish National Party more than the generosity of Westminster.
Lord CAMPBELL of CROY
May I say something on that point? I think that we are indebted to my noble friend Lord O'Neill of the Maine for the advice he has given us about how things work in Northern Ireland. Certainly the Kilbrandon Commission spelled out the arrangements which were made in the early 1920s for Northern Ireland and then described what happened, because the situation changed. Those arrangements were made on the basis that Northern Ireland was going to remain as prosperous —as it was at that time—as any other part of the United Kingdom. Unfortunately, that position changed. However, the Kilbrandon Commission pointed out that the people of Northern Ireland were determined to make sure that the union worked.
It was and still is quite clear that the principal political aim of the majority of people in the Assembly, or whatever body may in the future take the place of the Northern Ireland Parliament, is to remain part of the United Kingdom. Therefore, they are determined to make sure that the 1094 arrangements work. I can absolutely understand, without him telling me, that when my noble friend Lord O'Neill of the Maine was Minister for Finance he would have had no difficulty at all in dealing with Ministers in London, because he was absolutely determined, like his colleagues, to make sure that the arrangements worked, even though they were quite different from the original arrangements which had been laid down in the early 1920s.
What we have to be certain about in making provisions in this Bill is that we ensure that a Party does not take power in Scotland, or get a majority in the Assembly there, which is dedicated to becoming an independent Scotland and is absolutely determined in every statement it makes that it wants to go a hundred times further than anything in this Bill. So what my noble friend Lord O'Neill of the Maine has said about constitutional arrangements and how they can work is absolutely right and the advice that he has given is exceedingly good.
However, the situation is quite different, as I think the noble and learned Lord, Lord Wilson of Langside, was pointing out, because, in Scotland, my own home, my livelihood, my work, are in an area which is represented by four constituencies whose Members of Parliament come from a Party which is dedicated to complete independence and nothing short of that. It is the possibility of the majority of them taking over the Assembly which means that we must make sure that the rules are understood and that things are properly divided if the Assembly is to be brought into existence, because there will be people who are trying to go ultra vires. If they get advice from an official that something is ultra vires they will just tear it up because they do not want the arrangement to work.
I am not saying that this will happen; I believe that 80 per cent. of the people in Scotland now do not want independence, but that does not mean that about 30 per cent. of the population in Scotland may not vote and produce a majority of Nationalists (especially if there is not proportional representation) in the new Assembly. So I would say to my noble friend Lord O'Neill that we are grateful for his advice on the arrangements and how they have worked but I should like 1095 to warn those who do not live in Scotland, right among what is to us a very serious problem, that we are having to deal with something quite different.
§ Lord MACKIE of BENSHIE
Before the noble Lord sits down has he not missed the point of the advice given by the noble Lord, Lord O'Neill of the Maine ? It was that if you are generous you will ensure that the 30 per cent. will not come to power and that the 70 to 80 per cent. of the Scots people who have said that they want to keep in the United Kingdom but that they want to have an Assembly will see that the 30 per cent. do not come to power.
Lord CAMPBELL of CROY
I did not deal with that point but I am glad that the noble Lord, Lord Mackie of Benshie, has raised it because this is where I disagree with my noble friend. I do not think that in the situation of Scotland one can just say, "Oh yes, we will make life very difficult for the forestry industry, we will make it impossible for the transport industry in Britain, we will make life very difficult for the doctors because they do not know what their pay will be—we shall do all that in order to be generous; we will give away a whole lot of other things and we shall devolve agriculture and things which the Government do not want to devolve now because this will defuse the SNP situation ". I should be delighted if I could be confident about that but I cannot because I do not think it will have that effect at all. If it had any effect it would be a minimal one.
§ Lord MONSON
I support this Amendment which I believe to be an extremely important one, and for additional reasons to those put forward by the noble Lord, Lord Harmar-Nicholls. We must not forget that, in contrast to what prevails in, say, the GLC and similar bodies, the proceedings of the Assembly, if it comes into being, will be absolutely privileged, under the terms of Clause 15. Following on from what the noble Lord, Lord Campbell of Croy, has been saying, this factor of privilege could be an extremely dangerous weapon in the hands of anyone seeking, for whatever reason, the break-up of the United Kingdom. One only has to look at the naming of Colonel B by no 1096 fewer than four Members of Parliament in the House of Commons the other day to realise the sort of thing that might happen if the Assembly were given any foreign policy role. If the noble Lord, Lord Harmar-Nicholls, decides to press his Amendment to a Division, whether tonight or at a later stage, I shall certainly follow him into the Division Lobby.
§ 9.13 p.m.
§ The LORD CHANCELLOR
May I say at the outset that it is the view of the Government that the determination and the formulation of British foreign policy is a matter for Her Majesty's Government and, in so far as the purpose of the noble Lord, Lord Harmar-Nicholls, was to protect and ensure that proposition, my view is that his Amendment is wholly unnecessary. I repeat, this Amendment is unnecessary to maintain the purpose that he and I apparently have in common. The formulation of foreign policy is, as is also the case with defence policy, reserved by silence in the provisions of the Bill, but, for the avoidance of doubt, a reservation is expressly included in Clause 60(2) of the Bill—namely,To the extent that a matter involves the conduct of relations with any country outside the United Kingdom it is not a devolved matter".It is quite true that in terms of words, and really words only, there is a difference between that provision and the provision in the Wales Bill, but the difference flows solely from the fact that the Scottish provisions deal with devolved matters, the Welsh Bill with functions, and that flows in turn from the granting of legislative competence to the Scottish Assembly but not to that of Wales. But the effect and meaning of both formulations are exactly the same.
Indeed, the Amendment is rather worse than unnecessary, although its construction is not entirely clear. The reference to an informal role could be held to debar and prohibit consultation between the United Kingdom and the Scottish Administration about, for example, a draft EEC Directive which might impinge in whole or in part on a devolved matter. This, of course, would be an absurd restriction. I am sure the noble Lord agrees with that—and I see he nods his head; but preventing that could well be the result of his Amendment.
1097 The Scottish Administration are, under the terms of the Bill, to be responsible for the implementation of Community and other international obligations related to devolved matters, with the United Kingdom Government certainly retaining concurrent powers. Really it would make no sense to introduce a statutory bar on the United Kingdom discussing such matters with the devolved Administration. Indeed the effect of the proposal to debar an informal role in the determination of foreign policy could be just that, and could indeed be a recipe not for control and co-operation but for conflict.
The noble Lord, Lord Harmar-Nicholls, and I were together in another place for a great many years, and I fully understand the importance of maintaining the role of Members of Parliament, here as well as in another place. But I do not believe that the provisions of the Bill will in any way prevent, pre-empt, inhibit Members of Parliament from not only discussing foreign policy but bringing their influence and their powers to bear upon policy, upon international relations. The mere fact that an aspect of foreign relations—and it would principally arise in the field of European Community relations—may have been discussed with the Scottish Executive and debated in the Assembly in no way, in my submission, would take away from the role and functions of Westminster. Indeed, it would seem to me to be highly unlikely that the Scottish Assembly will wish to debate foreign policy, except in the narrow field relating to implementation of obligations. But it is a democratic Assembly, and it will certainly need to discuss and to consider, as I have said, the implementation of Community and other international obligations in relation to devolved matters, because it will be competent to implement those obligations.
The noble Lord, Lord Harmar-Nicholls, expressed concern as to the envisaged relationship between the devolved Administration and the organs of the European Community in Brussels. But I do not think I can emphasise too much that participation in meetings of the Commission and of the Council of Ministers, where the decisions will be made, is a matter for Member States, and so far as this country is concerned will be a matter for the United Kingdom Government. Accordingly, without wishing to prolong 1098 this discussion further, I respectfully agree with the view that was expressed by the noble Lord, Lord O'Neill of the Maine, and the noble Lord, Lord Mackie.
I fear that the noble Lord, Lord Harmar-Nicholls, is really inventing tigers in the pass, creating fears which are without foundation. I respect his concern for the maintenance of the unity of the United Kingdom and the sovereignty of Parliament. This devolution proposal, so far from hindering that, will maintain it. But that is to debate a subject that we have traversed so many times that I do not want to repeat it. In my submission, what is proposed in this Amendment is unnecessary and could indeed be extremely damaging in reasonable relationships between Parliament and the Assembly, and Her Majesty's Government and the Scottish Executive.
§ 9.20 p.m.
§ Lord HARMAR-NICHOLLS
On the actual wording of my Amendment, I am inclined to agree with the noble and learned Lord the Lord Chancellor. I see the possibility that the word "informal" may well be construed in a way that would preclude sensible consultations on matters that must be discussed. Although I did not have that point in mind, nevertheless I said at the beginning that I did not want to put this to a vote tonight, whatever the response from the Government Front Bench, but that I would take into account what was said. I shall take this matter into account, if, in spite of what the noble and learned Lord the Lord Chancellor has said, we come back to this on Report, as indeed we must. I would want to find other words rather than "informal".
The noble and learned Lord Chancellor did not comment upon the evidence that I produced on the need for something like that. I quoted the Minister of State for the Scottish Office answering officially in another place, when he said that he might take with him to Europe a representative from the Scottish Administration to speak and make a contribution. It could well be that those words from the Minister could mean only that if one takes someone to a negotiation or official assembly, that person is not taken just to sit in the gallery. He is taken to make a contribution because of his expertise that you admit. In this case it would be the expertise from the Assembly. There should be something 1099 in the Bill to show that that development—a representative to go with the official Westminster spokesman—will take place.
Similarly the Foreign Secretary said in Edinburgh that the Assembly should be consulted as an Assembly. The noble and learned Lord the Lord Chancellor did not say that when he criticised my word "informal". He said if they wanted to consult—something I concede—he would want to share their minds. But would he go to the Assembly, put his case, ask for their response, as an Assembly, before he took whatever line he intended to take ? I do not think that all the ambiguity is in the words of my Amendment.
§ The LORD CHANCELLOR
As I understand it, what my right honourable and honourable friends in another place were saying was that consultation would take place. That is obviously right. Persons might go with them to Brussels in consultation on questions affecting, for instance, devolved matters. It is perfectly proper that that should be done. There would be nothing irregular in the Scottish Executive having somebody actually in Brussels. Many organisations have just that. Companies and organisations have representatives there for information. However, the actual negotiation, the carrying out and formulation of policy within the EEC is a matter in the sole responsibility and charge of the Government.
§ Lord HARMAR-NICHOLLS
The noble and learned Lord the Lord Chancellor knows, as I do, that from little acorns mighty oak trees grow. If it is conceded that the Assembly is consulted on these matters which have to do with Europe, which is verging on foreign affairs, the Assembly is being recognised in one field. I gathered that the noble and learned Lord did not want that. When the Minister of State says that not only will he consult them but that they will be taken along with him, that is going a long way, in my experience, towards what may develop. I believe that the preservation of the unity and the recognition of the authority of the Secretary of State as a member of the Cabinet—if indeed after he has had his powers reduced he is still allowed to remain a member of the Cabinet—is where the conflict will come.
1100 The other evening, when discussing another Amendment, the noble Lord, Lord O'Neill, made a contribution and I said—and I repeat it again—that I believed that my noble friend's contribution was the most dangerous because it was the most effective. He speaks from practical experience and we ought to heed his evidence. However, I echo what my noble friend said so admirably. His evidence was from another age and another time and related to circumstances quite different from those which exist today.
The noble and learned Lord the Lord Chancellor said that I was producing a tiger from the past. My noble friend produced a dove from the past. There is all the difference in the world between a situation where the Party with the overwhelming majority is for religious and other reasons, likely to remain in overwhelming majority and wants to retain its unity with the United Kingdom, and a situation where opinion is more evenly divided, and where there are people who want to break away and who will only use this Bill as a stepping stone in order to break away.
My noble friend spoke about the tranquil arrangements but when the crunch came things became difficult. It did not go on. People walked out of Stormont and at the end of the day we saw the end of it. I do not believe that the noble and learned Lord the Lord Chancellor has given an answer which will mean that he has heard the last of this for evermore. Certainly, however, he has heard the last of it tonight so far as I am concerned, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 60 agreed to.
§ Clause 61 agreed to.
§ Schedule 12 [Legal proceedings involving devolution issues].
§ 9.28 p.m.
Viscount COLVILLE of CULROSS moved Amendment No. 181:
Page 71, line 27, after ("Act") insert ("or any instrument made by a Scottish Secretary under any Act of Parliament or Scottish Assembly Act").
§ The noble Viscount said: We now move back across the frontier to the land 1101 of lawyers. I hope that my noble friend Lord O'Neill, who I understand has just left, will not think that this is just a niggle. We are, of course, now discussing the situation where, after Scottish legislation or Scottish executive action has taken place, the question arises in the courts whether that legislation or action was intra vires.
§ The whole of Schedule 12 deals with the methods of reaching a decision on a question of that sort. My Amendment—I hope that it is not too disingenuous—draws attention to what appears to me to be a lacuna in the provisions. Let us go back for a moment to the provisions under which we have powers in the United Kingdom Government to override what is done in Edinburgh, that is to say Clauses 35 to 37. We have powers in Clause 35 to override Scottish Assembly Bills; in Clause 36 to override executive action or to insist upon executive action which has been omitted to be taken; and in Clause 37 to override subordinate legislation.
§ In the preliminary part of Schedule 12 there is a definition of the devolution issue to which the whole of the rest of the Schedule relates, which includes the Scottish Assembly Act or any provision of it and also the exercise of the executive power by a Scottish Secretary. However, nothing whatever is said about the subordinate legislation. I am bound to say that I wonder why. I wonder why, from whichever quarter I am going to get an answer.
§ We have no parallel under the existing Constitution because, of course, with the sovereign power of the Westminster Parliament and no written Constitution, there is no way in which anybody can challenge an Act of Parliament. One cannot say that it is ultra vires in the way, for instance, one can in America say that it contravenes the provisions of the Constitution. But certainly one can say that subordinate legislation is ultra vires. Within the last 10 years I can think of two examples—to which perhaps I may return in a moment on another Amendment—when the courts have held that subordinate Instruments were outside the powers of the enabling Act under which the Minister making the subordinate Instrument purported to act; and they have held therefore in, I think, both cases, 1102 that the Instrument was not legitimately able to levy money from the citizen in the way that the Minister and the body levying the money had hoped.
§ I should have thought that similar justiciable issues could easily have arisen on Scottish subordinate legislation. It could easily be found not only that they might be outside the powers of the enabling Act—that is to say, this Bill—hut also that internally they may be ultra vires. There may be two sources of the ultra vires: first, this Bill and, secondly, perhaps a Scottish Act itself. But there is no provision in the Bill for dealing with them.
§ If the noble and learned Lord, Lord McCluskey, would answer what is probably not a matter of very great difficulty, I should be very grateful. However, it occurs to me that if in Schedule 12 we provide that the courts may deal with ultra vires in terms of a Scottish Assembly Act and in terms of executive action by the Scottish Secretary, but not in terms of subordinate legislation, are we not by implication saying that this question cannot be raised in the courts at all? The noble and learned Lord shakes his head. If not, why on earth do we not simply say so in some simple phraseology, which I am sure is not the same as mine, but which could easily be included in the Bill? This is just as likely to he an area of conflict with the powers that arise under this Bill. I should have thought that we would have been very wise to spell it out in the sort of terms that I have attempted to set out in Amendment No. 181, and in No. 182, which is consequential. I beg to move.
§ 9.33 p.m.
§ Lord McCLUSKEY
In the Government's view this Amendment and Amendment No. 182 are misconceived. Both Amendments are unnecessary in so far as they relate to devolution issues as regards Instruments, because Instruments are covered by paragraph 1(b) of Part I of Schedule 12. The Amendments are also misconceived because there is no need to have such an exercise of powers by a Scottish Secretary decided as a devolution issue. The existing law is perfectly capable of dealing with subordinate Instruments made by a Scottish Secretary which are not within his powers.
1103 I was asked: Are we not, by implication—that is to say, by silence—saying that somehow the courts are excluded from dealing with an excess of internal powers? I really do not follow that argument at all. If a Scottish Secretary makes an order purporting to exercise powers which have been conferred upon him by an Act of the Assembly and, in fact, the exercise of those powers is attacked as ultra vires that Act of the Assembly, then there can be no difficulty in the courts looking at that matter. But I do not think that we need to make specific provision for that.
So when a Scottish Secretary makes a subordinate Instrument under an Act of Parliament the question that will arise is whether the Instrument is ultra vires of the Act of Parliament in the normal way, as if the Instrument had been made by the Secretary of State. The powers conferred by an Act of Parliament will not be different because of devolution. The questions to be asked in relation to them will still be the same, and the courts are long accustomed to deciding these questions.
Similarly when a Scottish Secretary makes a subordinate Instrument by virtue of a power conferred by a Scottish Assembly Act, as I have just indicated, the question to be asked will be whether the Instrument is ultra vires of the Assembly Act. Again, in order to have this question answered, there is no need to have it treated as a devolution issue as that issue is defined in Schedule 12. In other words, neither question requires the court to determine the meaning and ambit of "devolved matter" in Schedules 10 or 11 to this Bill. Therefore, neither question raises a true devolution issue, properly so called. For these reasons, I would invite the noble Viscount to reconsider the matter and not to press this and the related Amendment, No. 182.
The Earl of SELKIRK
Why should not the Scottish Secretary exceed his powers under Schedule 11? I cannot see what could stop him from doing so. Conceivably he might do so. The noble and learned Lord pushed this aside as though it did not matter, but it seems possible that he could do so.
§ Lord McCLUSKEY
A devolution issue properly arises when the court has 1104 to construe what is within the vires of the Scotland Act. If, under Schedule 11 and one of the Statutes listed there—the Education (Scotland) Act, or the Highlands and Islands Development (Scotland) Act, or something of that sort—the Scottish Secretary purports to exercise powers, then the question that arises is, has he properly exercised the powers conferred upon him by the Education (Scotland) Act; has he properly exercised the powers conferred upon him by the Highlands and Islands Development (Scotland) Act?
These are not devolution issues. They do not touch on the question of the construction of the devolution statute. That is the distinction. When we talk about a devolution issue, we are talking about what powers are conferred, and what competence is conferred by this statute; not by one of the other statutes which appear in Schedule 11.
The Earl of SELKIRK
In point of fact, the powers which the Scottish Secretary gets under Schedule 11 are a devolution issue. That is a perfectly clear statement in Clause 59.In relation to the powers and duties of a Scottish Secretary, a devolved matter is—It is a devolution issue, and it could well then be exceeded in its use. That seems to me to be a justiciable matter which could well come before the courts. I think this is one of the issues that my noble friend is raising.
- (b) any matter with respect to which powers within the Groups in Schedule 11 to this Act are exercisable".
§ 9.38 p.m.
Viscount COLVILLE of CULROSS
I hesitate to take issue with the noble and learned Lord because he seems so certain about this. The difficulty about this Bill, as I come to consider it, is that there does not seem to be any way in which one can be quite certain how things are going to work out. I entirely follow that if the issue is whether the subordinate Instrument made under the Scottish Assembly Act turns out to be ultra vires, the Scottish courts will of course have no difficulty in dealing with it under existing rules and practice that they are very familiar with. I do not think it is so simple if the Scottish Assembly Act in itself appears to be perfectly all right and, within the 1105 terms of this Bill not to have been ultra vires, though the way in which it has been interpreted by the Scottish Secretary goes beyond the way in which the Act, as it originally appeared to be, was put on the Statute Book.
I think it could happen that, although the Act appears to be right, the subordinate Instrument is taken further than the Act intended. In those circumstances, is the citizen supposed to impugn the Act under which the Instrument has been made, as well as the Instrument?—because that is what he would have to do if the noble and learned Lord is right. Or is he supposed just to impugn the Instrument and, if so, is the Schedule, as it stands, adequate to deal with it?
There is yet another possibility. As I understand it—and the noble and learned Lord will correct me if I am wrong—some of the matters that are being devolved are powers to make subordinate instruments under existing United Kingdom statutes. There is no question about those statutes being ultra vires. There is no question about their being ultra vires even as regards Scotland, because it is only bits of them that will be devolved, and they will therefore be exercisable by the Scottish Secretary in so far as they relate to Scotland. One cannot attack the statute in those circumstances. All one can do is say that, so far as the Scottish Secretary has gone in making subordinate Instruments under that United Kingdom statute, he has gone outside the powers given in the Bill.
The noble and learned Lord says that that is covered by paragraph 1(b). Very well, but why need we leave a doubt? Why cannot we refer to the Instruments? One can look at the Bill as a pattern—noble and learned Lords on the Cross-Benches will immediately tell me if I am wrong—and if one is in doubt one is allowed to look at other parts of the Bill to see whether the argument one is putting forward fits into the pattern. In the rest of the Bill, the Government provide for three separate matters—for Acts, for executive actions and for subordinate Instruments—yet in this schedule they provide for only two of them. Why cannot the draftsman spell this out? What would be the harm in doing so ? The noble and learned Lord and I are trying to achieve the same thing, but he insists on 1106 making it obscure when my Amendment or something like it would make it clear. Is that an unreasonable thing to ask the noble and learned Lord to look at again?
§ Lord McCLUSKEY
In relation to the second point raised by the noble Viscount and the wording of paragraph 1(b), when we are talking about the exercise of a power, there I should have thought it was plain that it includes the exercise of a power to make a subordinate Instrument which the Scottish Secretary is competent to make, and therefore there is no dubiety about it. It is already plain and, despite the noble Viscount appealing to the noble and learned Lords on the Cross-Benches, I should have thought that was reasonably evident.
In relation to the first matter he raised, either the question is one of the competence of the Assembly to pass its own Act, in which case it is a devolution issue that is so under paragraph 1(a)—or, alternatively, it is a question whether the Scottish Secretary has power within the terms of the measure which has been passed by the Assembly.—
§ Lord McCLUSKEY
—in which event it is a question of a kind with which the courts are well accustomed to dealing.
Viscount COLVILLE of CULROSS
Unless I am wrong, there is a third point; he can make subordinate legislation under United Kingdom legislation.
§ Lord McCLUSKEY
I was coming to that. If he makes subordinate legislation under a United Kingdom Statute of the kinds listed in Schedule II—as I sought to make plain when I was answering the noble Earl, Lord Selkirk—there is no difference between the exercise by a Scottish Secretary of powers which he claims to have under a United Kingdom Act of Parliament and the exercise by a Secretary of State or other Minister of powers which he claims to have under such an Act of Parliament. That is an ordinary matter; it is not a devolution issue. It is an ordinary vires matter, and it is the kind of matter with which the courts are accustomed to dealing in the ordinary way.
1107 We do not need to create, as we are doing in Schedule 12, a special system, a special routing, as it were, for dealing with problems which relate to devolution issues, being issues arising out of the competence conferred by this Statute. When I talk about the "competence conferred by this Statute ", the question which is raised by a devolution issue is this: What is the true meaning of the Scotland Act in this context ? The question which arises when the Scottish Secretary purports to exercise powers which have been conferred upon him under a United Kingdom Statute is this: What is the true construction of that United Kingdom Statute?
§ Lord ROBBINS
May I ask a simple-minded and perhaps idiotic question? What if the Scottish Secretary, in pursuance of powers conferred on him by the clause we were discussing before dinner, seeks, outside the guidelines which he has been given, to issue a bond for a long-term loan? He is permitted to run an overdraft under Clause 46, but supposing he seeks to raise money by issuing a long-term loan? Clearly that is contrary to the spirit of the measure. But what are the sanctions which apply to him in that case?
§ Lord McCLUSKEY
I am sorry; I do not follow the reference by the noble Lord, Lord Robbins, to guidelines in this context in relation to the clause that we were discussing before dinner.
§ Lord ROBBINS
I will not go into details about what we were discussing before dinner. Let us suppose that a financial operation of the kind that I have been describing is indulged in by the Scottish Secretary, and this is outside the guidelines which have been furnished. What sanctions apply?
§ Lord McCLUSKEY
If the noble Lord will direct me to the clause containing the reference to the guidelines which he has in mind, perhaps I can attempt to answer that question. I am afraid that at the moment I do not understand the question.
§ A noble Lord: Clause 38.
§ Lord McCLUSKEY
But Clause 38 concerns the preparation of guidelines by the Secretary of State, as to the exercise 1108 by a Scottish Secretary of powers under the Scottish Development Agency Act, or matters of that kind.
§ Lord FRASER of TULLYBELTON
I am afraid that I have not taken the opportunity of considering this Amendment before now, but having listened to the noble Viscount, Lord Colville of Culross, I am impressed by his argument to the extent that it seems to me by no means clear that there is not a need for the Amendment. I believe that it merits a little further consideration. I am not sure that it can be brushed aside quite so quickly as the noble and learned Lord has done.
Viscount COLVILLE of CULROSS
I am very grateful to the noble and learned Lord. I do not want to prolong this matter, but I should like to try just once more with the noble and learned Lord, Lord McCluskey. He has had a very long and very hard-working day, and I may not have made myself clear. May I try to take an example. There must be legislation under Group E of Schedule 11 which enables somebody to do something about effluent. There is no doubt that within the total terms of the United Kingdom Statute a Statutory Instrument could be made which dealt with effluent in rivers. Nobody could complain that that was ultra vires the United Kingdom Statute. That is the first stage.
A Scottish Secretary using his Schedule 11 powers makes a subordinate Instrument which in terms of the United Kingdom Statute is totally intra vires, but he applies it by mistake to the English side of the Tweed as well as to the Scottish side. An argument arises as to whether that is within his powers under Schedule 11. There is nothing wrong with the basic powers. He has not infringed the United Kingdom Statute. The question is whether, within the terminology of the Scotland Bill, he has gone too far in impinging upon the English side of the river.
That is the devolution issue to which I am drawing attention. That is a matter which could arise in the courts. I think that the noble and learned Lord must conceive that this kind of thing could happen. Perhaps he would indicate that 1109 he would consider this point again. It is not a frivolous matter, but one which I genuinely believe ought to be considered, and I am grateful for the support that I have received from the Cross Benches.
§ Lord McCLUSKEY
I am sorry to have to say something more on this. I shall certainly consider what has been said. In relation to that particular example, I certainly have in mind Clause 20 subsections (3) and (11) as they stand at present, which restrict the Scottish 1110 Secretary to the exercise of powers in, or as regards, Scotland.
Viscount COLVILLE of CULROSS
That is exactly the point—the citizen argues that he has not. Therefore, the Instrument is ultra vires and he wants to challenge it in the courts. It is a devolved matter. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 182 not moved.]1111
§ 9.50 p.m.
Viscount DILHORNE moved Amendment No. 183:
Page 71, line 35, at end insert ("or when a devolution issue falling within sub-paragraph (a) above has been decided by the Judicial Committee on a reference under section 19 or on an appeal.").
§ The noble and learned Viscount said: It was, I think, exactly three weeks ago when we discussed, and had a fairly lively debate on—
§ Viscount DILHORNE
I do not know what that means: whether it is hoped that it will be lively again tonight or that we shall have a more peaceful time.
§ Viscount DILHORNE
I cannot promise any entertainment tonight for my part, but I have no doubt that the noble and learned Lord the Lord Chancellor will make his contribution.
§ Viscount DILHORNE
At any rate, what we were discussing then was the effect of a decision of the Judicial Committee on a reference under Clause 19. It seems a very long time ago, and the Committee has been considering a wide variety of subjects since then, so I hope I shall be forgiven if I take a few moments in reminding the Committee of the course of that discussion. The noble Earl, Lord Mansfield, had moved an Amendment to provide that a decision of the Judicial Committee of the Privy Council on a reference should not bind any court in any subsequent proceedings. At the time we discussed that Amendment we also discussed an Amendment in the names of myself and of my noble and learned friend Lord Diplock, to precisely the opposite effect; namely, that a decision of the Judicial Committee on a reference should not be challengeable in any subsequent legal proceedings. At the end of that discussion both Amendments were 1112 withdrawn, in the hope that the Government would think again about what was said and also to give us further time for reflection.
As this Bill stands, if on a reference the Judicial Committee decides that a Bill, or a provision in it. which has been referred to the Judicial Committee is ultra vires, that Bill cannot then be submitted for the Royal Assent. So both Amendments were concerned with the position which would arise if the Judicial Committee, on a reference, decided that the Bill submitted, or the particular provision submitted, was intra vires. In the course of that discussion it emerged quite clearly that some of my noble and learned friends thought that the Amendment which I had tabled went too wide. There are some, I know, who do not think it did; but those who thought it went too wide thought that it might have this effect: A reference was made of a Bill as being ultra vires on a particular ground; the Judicial Committee decided that it was not ultra vires on that ground; and so it received the Royal Assent. They thought, if I understand their views correctly, that it would be wrong, that decision having been arrived at on that ground, to shut out any subsequent challenge of the validity of that Bill on some other ground.
§ Viscount DILHORNE
The noble Viscount, Lord Colville, agrees that that is putting the position quite accurately, though I was unable to refer to any observations of his in the course of the debate on that Amendment. I am grateful to him, but I am putting it that way, I think and I hope, rightly. I think there was force in those views. Now we are on Schedule 12, and Schedule 12 defines with great precision what exactly is a devolution issue.
The Amendment I am moving, to paragraph 2 of that Schedule, has this object. It is to ensure that a decision of the Judicial Committee on a particular issue referred to it shall not be challenged in any subsequent litigation. It is much narrower than the Amendment that we considered before. It means that the 1113 decision on the particular question that the Judicial Committee has considered and decided shall be final and not challengeable in any subsequent litigation. It may be that the wording of this Amendment is open to criticism. I should not be in the least surprised at that. Indeed, I have to admit that I put in the words at the end:or on an appeal",and I cannot remember for one moment now why I did so. So that I should be very content to move this Amendent without those words. I have often tried to draft Amendments to the satisfaction of Parliamentary Counsel. I have seldom succeeded; and, really, I do not try very hard now. I am perfectly happy to be told that this Amendment is not satisfactory in form and could be better drafted. I should be grateful for the help of Parliamentary Counsel.
Let there be no mistake about it! All that this Amendment seeks to do is to ensure that the question, and only the question, actually decided by the Judicial Committee shall not be challengeable again. As the Bill stands, one can have this position. The Judicial Committee decides a particular question referred to it, and says that that is not a ground for saying that this provision is ultra vires. The Bill gets the Royal Assent. Later—and it may be years later—some litigant, despite the decision of the Judicial Committee on that particular question, puts forward the argument that that decision of the Judicial Committee on that particular ground was wrong—and he can do so. He may be able to persuade some court or tribunal in the land—it is not impossible—to say that the Judicial Committee was wrong.
Then what happens? There can be an appeal up through the courts, ultimately coming to this House. That will take some time. During all that time, there will be uncertainty because of two conflicting decisions: the decision of the Judicial Committee on this particular point on a reference, and a decision of some other court. It may come, ultimately, after the lapse of a long time, to this House and, under paragraph 23 of the Schedule, what can happen then? This House can refer the very same question which the Judicial Committee decided on a reference, perhaps two or three years before, or it 1114 may be longer, back to the Judicial Committee, which has to decide that very same question again.
Is that not a nonsense? But that is what this Bill provides as it now stands. And this Amendment is directed to preventing that from happening. It is to ensure not that anyone will be prevented from challenging the vires of a Bill or a provision on any ground not considered by the Judicial Committee, but to prevent the very same point which has been decided from being raised again, with the possibility that it will ultimately, after a long time, come back to the very same body which decided it on the reference.
I am sorry to disappoint the noble Earl, Lord Lauderdale, but I think that on this occasion all the noble and learned Lords who sit on these Benches are in agreement. I hope so. At any rate, I am confident of having the agreement of my noble and learned friend Lord Fraser of Tullybelton because, on the last debate that we had—if I may quote his words with him sitting beside me—he said that he agreed:that if the Judicial Committee at the pre-enactment stage has decided that a particular provision is intra vires, then there is much to be said for the view that that must be settled once and for all; because it is difficult to see a useful purpose in allowing people to re-open that normally fairly narrow issue.Whatever may be the defect in the wording of this Amendment, it is intended to do just that—to prevent a particular issue, a particular question, considered and decided by the Judicial Committee on a reference, from being raised again. There are some, I think, who feel that does not go far enough. The Amendment we discussed three weeks ago went further and some of my noble friends, despite what was said on that occasion, still think it should go further. But speaking for myself, if the Government were prepared to accept this Amendment, which at least would make this part of the Bill more sensible, I should be content.
I shall wait with interest to see what the noble and learned Lord the Lord Chancellor has to say with regard to this. I find it difficult to visualise what cogent arguments he can produce in defence of the present measure, but before deciding what course subsequently to take I will, of course, await his answer. I beg to move.
§ 10.2 p.m.
Viscount COLVILLE of CULROSS
May I just say from this side of the Committee the reason why the noble and learned Viscount, Lord Dilhorne, is unable to quote me on this subject is that unfortunately I was not there at the time. But he did in fact very accurately express what I think we on this side thought about it, and now that he has explained this Amendment I am wholly content with it. Indeed, I should have thought that his words "or on an appeal" were useful because they appear to me to take into account the case where, under one of the subsequent provisions of this Schedule —for instance, under paragraph 22—there is an appeal to the Judicial Committee of the Privy Council against the decision of a subordinate court upon a devolution issue; the decision of the Privy Council on that matter, having been raised on an appeal to it, should equally be binding and should not be questioned anywhere else again. Indeed, I have another Amendment down to that effect.
§ Viscount DILHORNE
If I might interrupt the noble Viscount, that would be so if subsequent Amendments which are tabled in my name and in those of my noble and learned friends to replace the appellate tribunal of the Judicial Committee by the House of Lords are not accepted. But if those Amendments are accepted, the words "or on an appeal" can only cause confusion.
Viscount COLVILLE of CULROSS
Yes; that I entirely agree with, but I thought that if we took these things one by one there was merit in the words "on an appeal". As the noble and learned Viscount has now explained it, we have a situation where a Scottish Assembly Bill as a whole which has been passed, on the issues that were argued before the Judicial Committee on that occasion as being intra vires, can subsequently still be questioned on some other detailed point which arises in subsequent legislation and which was never considered by the Judicial Committee at the pre-Assent stage. If that is what the words mean, they seem to me to be wholly satisfactory and certainly would avoid double litigation on the same point. I am not entirely sure that it is wholly 1116 clear, if I may with very great respect say so—at least, it certainly was not to me when I first read it—that that was what was intended. But now that the noble and learned Viscount has explained it, I shall be very happy indeed to support him.
§ Lord FRASER of TULLYBELTON
As my name was mentioned by my noble and learned friend, I think it is right I should say that I was one of those who thought his original Amendment went too wide. As I understand it now, I think I agree with him on principle. I am not attempting to resile from what I said three weeks ago but my reaction is, subject to this, still a slight doubt. I think this Amendment would require to be very much more carefully drafted than it has been so far. The anxiety in my mind is this. Supposing that the issue referred to the Privy Council at a pre-enactment stage were simply to be: "Is this Bill, as a whole, valid?" I think it could be under Section 19. I would not accept that as precluding shutting out further litigation which in a sense would be contrary to that decision. If, as I said before, it was a fairly narrow issue, as it usually would be on a remit, then I would accept the position as my noble and learned friend has said, but it would need to be defined in such a way as to shut out that sort of wide general remit. Subject to that, I agree with it.
§ The LORD CHANCELLOR
This matter was canvassed and discussed at an earlier stage of our deliberations, and on that occasion I undertook on behalf of the Government, in the light of the debate that we had on Clause 19, to consider whether decisions of the Judicial Committee that an Assembly Bill or any specified provisions of it is within the legislative competence of the Assembly, should be binding on all courts following enactment of the Assembly Bill. The view seemed to crystalise in the course of the discussion that while there should be objection still, as the noble and learned Lord, Lord Fraser of Tullybelton, has just said, to an adjudication about the vires of a whole Bill being perhaps questionable, in so far as it was thought to make final and binding that decision of the Judicial Committee, opinion seems to be moving very strongly in support of 1117 the principle which the noble and learned Viscount, Lord Dilhorne, has just adumbrated, that if at any rate the pre-enactment decision of the Judicial Committee was directed to a particular provision in an Assembly enactment, or related to a particular vires issue which it was sought to re-open in subsequent legislation, the earlier decision of the Judicial Committee should be binding.
Having given thought to the discussion, I am now disposed to agree with the two propositions, that the binding quality should not be too wide; on the other hand, it should be sufficient to prevent the absurd duplication of litigation. The difficulty is to define what is to be final and to specify with sufficient drafting particularity what it is that, once decided by the Judicial Committee, should have finality. I assure the noble and learned Lord that we have been giving continous thought to this. I am comforted with the feeling of the noble and learned Lord, Lord Fraser, that at any rate the draft now before us is not perfection and totally convincing to all of us; but, in the light of the undertaking that I have given that I am ad idem with the noble and learned Viscount on the board intention of the matter, and if he agrees to withdraw the Amendment in those circumstances, I hope to satisfy him in due course, and perhaps there may even be consultation between us between now and the subsequent stage.
§ Lord DIPLOCK
I wonder whether I may suggest to my noble and learned friend the Lord Chancellor that when these consultations take place it may well be that the appropriate place for this Amendment would not be in this particular Schedule but would be in Clause 19. I think in the way that it is drafted at the moment it would apply only to the reference procedure and not to the ordinary procedure by which it might go through the courts.
§ The Lord CHANCELLOR
I had that exactly in mind when I spoke. I spoke in relation to the debate that we had on Clause 19, and obviously it goes in there and it is not necessary to worry about it in Schedule 12.
§ Viscount DILHORNE
I tried to disarm criticism, and to protect myself 1118 from an attack on my drafting, by saying at the start that it was bad. But that has not stopped it being criticised, and I did not really expect to avoid criticism on that account. I am indeed grateful to the noble and learned Lord the Lord Chancellor for what he has said. I recognise that this is not something which is easy to draft. It has to be precise, clear, easily understood and effective, but I think that it can be done. Parliamentary counsel have great skill and, if I can give any help to them in the drafting, I shall do so, but I do not expect it to be wanted. But, in the light of what the noble and learned Lord the Lord Chancellor has said, and with thanks to the noble Viscount, Lord Colville, and my noble friends who have supported this Amendment, I now beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ 10.11 p.m.
§ Viscount COLVILLE of CULROSS moved Amendment No. 184:
Page 71, line 35, at end insert—
("(2A) Where it has been determined in any legal proceedings that
§ The noble Viscount said: This is a purely probing Amendment, which follows a discussion in another place on what was, broadly speaking, this topic, which I found very difficult to follow. I should be grateful for an explanation from one or other noble and learned Lord as to how it will work. If I may now revert to the original debate on this Schedule about the devolution issue without quarrelling any more with the noble and learned Lord, Lord McCluskey, let us assume that we may have a situation where an Act, a subordinate Instrument or an executive action can, under the Bill as it is drafted, be found to be ultra vires. The question is, what happens then?1119
§ There have been two recent examples of a similar state of affairs in the United Kingdom Legislature. One of them related to an industrial training board levy, and it was held that the subordinate Instrument subjected to the imposition of the levy a wider collection of people than should have been so subjected. The second case was one which I am not sure will be far from the memory of the noble and learned Viscount, Lord Dilhorne, and relates to the general service charge for sewerage under the Water Act. In both of those cases, the vires of the Statutory Instrument came to this House, sitting in its judicial capacity, and it was held that the Statutory Instrument was bad.
§ The result in the case of the industrial training board was that a new Instrument was laid which redefined the group of people who were required to pay the levy, so as to omit people who might be found to be outside the powers of the Minister to tax in this way. In the second case, a new subordinate Instrument was laid and passed which provided an exemption from most of the general service charge for those properties which were not attached to a sewer. Of course, in the second case there was an added satisfaction to those who had sought to challenge the vires of the Instrument, because they had all their money paid back.
§ What I really want to know is this. We have a situation here where not only the subordinate Instruments are capable of being found to be ultra vires, but the Acts of Parliament themselves. Very often, it will be the case that, upon a Scottish Act and a Scottish Instrument passing and taking effect, people will alter their position, because they will assume that the Act is the law and that there is nothing wrong with it, so that some time may pass by before the matter is challenged and finally determined in the courts. By that time, people will have been acting on the basis that the Act was correct, only to discover subsequently that they were wrong. The person who was brave enough or wise enough to challenge it would obtain a benefit which, under the law as it stands at the moment, none of the rest would obtain.
§ It is about the remedies that I should like the noble and learned Lord to speak. 1120 I suppose that there could be no remedy at all—it would probably be a political decision—and one would get a situation where the loss would fall where it lay and, if there were no change in the law, it would just be a matter of bad luck for those who had suffered. I suppose that it would be possible for the Scottish Assembly or a Scottish Minister to pass amending legislation by a new Statutory Instrument. I also suppose that it would be possible for the United Kingdom Parliament, if it thought that the Scottish Assembly had been acting in a monstrous way in refusing to put right what was a blatant wrong, to take the necessary powers to remedy the matter itself and to override the inaction in Edinburgh. That, I should think, would be an extreme case. However, I should like the noble and learned Lord very briefly to discuss this matter; I believe that it was left in a rather unclear situation in another place. Perhaps it would be an advantage if we could have as definitive a statement as possible about what would happen. I beg to move.
§ 10.15 p.m.
§ Lord McCLUSKEY
I am asked for a definitive statement and I will endeavour to give one to the Committee, although it will of course be for the Committee to judge. I should say, first, that the Government's expectation is that the provisions regarding pre-Assent scrutiny will prove to be a net with a sufficiently fine mesh to catch the vast majority, if not all, of the measures which may be ultra vires. But we accept that it is at least conceivable that some may slip through. Indeed, if it were not so, we should not need a post-Assent judicial review. Therefore it is common ground that the citizen should have the right to make a post-Assent challenge of the vires of Assembly legislation, just as he has the right at the present time to challenge the vires of subordinate legislation—as indeed was done in the two cases mentioned by the noble Viscount, and there have been others, including Scottish cases.
This is an important point which I want to emphasise. The Assembly will be a creature of Statute and its capacity will be limited by the four corners of the Scotland Act. It will, in principle, be in exactly the same position as a Minister of the Crown who is given powers by Statute. The Assembly's Acts are liable to be struck 1121 down by the courts if it exceeds its powers, just as are Instruments made by a Minister of the United Kingdom Parliament.
As the noble Viscount has made clear, the Bill is silent about the wider consequences of a successful challenge. There are two reasons for this. First, the possible circumstances with which any express provision will have to cope are quite innumerable, and I believe that no statutory formula such as the one contained in the Amendment could cover them all. Secondly, we believe that the law itself is well accustomed to providing answers to exactly this kind of question.
It will be convenient if I deal separately with civil and criminal law. So far as the civil law is concerned, the proposers of the Amendment wish to ensure, as I read it, that those who have acted or failed to act in a particular manner, on the basis that an Assembly Act was valid will not be adversely affected or prejudiced by any decision that the Assembly Act was ultra vires. This is an unexceptionable aim and one which the existing law, we believe, achieves.
Perhaps it would be best if I were to illustrate this by an example. In preparing to meet this Amendment, I had in mind the discussion which took place in another place, and perhaps it would assist the noble Viscount, the Committee and those in another place if I were to pick up the particular example which was mentioned there. This is the case which Mr.Taylor put in another place to my right honourable and learned friend the Lord Advocate:Let us suppose that the Scottish Assembly had altered industrial derating from 50 per cent. to 55 per cent. and that at the time that alteration was not challenged as being ultra vires. It will be understood, of course, that if this were done the industrialists would thereafter pay less in rates and the non-industrial ratepayer would pay correspondingly more. And let us further suppose that for some years the non-industrial ratepayers had been paying the increased rates which had been imposed upon them in consequence of the alteration to industrial derating. What would happen if after some substantial time it was held by the court that the Assembly's alteration of the industrial derating was ultra vires? Would the people who had been paying extra rates be entitled to recover the sums that they had paid, and what would happen to the shortfall that would be thus created?We believe that the answer is to be found in two legal principles. The first is the well-established and important fiction that everyone knows the law, including 1122 what the courts are at some future date going to decide the law to be, or always to have been. So the people who have been paying extra rates should, in strict legal theory, have realised that the derating was illegal, being ultra vires.
The second legal principle is that money paid as a result of an error in the construction of a public general Statute is not recoverable. Anyone who had paid extra rates because of this misconception of the Assembly's powers would not be able to recover the money which he had expended. The application of those principles would therefore, in my submission, adequately protect, from the moment of the decision, the interests of those whom the movers of the Amendment wish to protect, because it should be noted that the Amendment does not require the repayment of money paid under error of law in the past, nor does it seek otherwise to restore in integrum the position of those who have altered their position on the basis of the ultra vires measure. The industrial ratepayers in this example who might otherwise have been obliged to find the missing revenue would not have to do so, and it could not be said that those who had been paying extra rates would be any worse off as a result of the determination. In fact they would be better off because they would not require to continue paying the higher rates, nor could it be said that the decision would adversely affect the industrial firms who had received the benefit of industrial derating.
I will now turn to the connected question, which I think is really the question that the noble Viscount has in mind, that of remedies for what has happened in the past. I think he would agree with me that the Amendment does not seek to solve it. This is the question of trying to restore the position of those who have, prior to the court's determination, received benefits or made payments which would not have been received or made if the court's determination had been made earlier. I can perhaps best illustrate this by referring to a Scottish case of 1959. In 1959 Glasgow Corporation, in a case in which I think the noble and learned Lord, Lord Fraser of Tullybelton, acted as counsel, took the view that they were paying too much purchase tax, and they asked the court of session for a declarator, first, that they were in fact paying too 1123 much purchase tax and, second, they asked the court to tell the Inland Revenue to pay back the purchase tax which they had, in their view, not been obliged to pay in the first place. The court, in what is I think the leading case in Scotland and the most recent one of its kind, held, first, that the corporation were not bound to pay the purchase tax about which they were complaining but, secondly, they were not entitled to recover the purchase tax which they had already mistakenly paid. The noble Viscount mentioned the two cases which he described briefly, but I do not think that in either of those cases the court ordered any repayment of monies.
§ Lord McCLUSKEY
In the second case money was paid back—and I will come to that—because it is always open, of course, particularly to a public authority, to make repayments ex gratia. But I would invite your Lordships to consider the decision in the case which I have mentioned, reported in the 1959 Session Cases, because off hand one would have said that there could not really be a clearer case for rectifying the position. Here is a Government Department which had been mulcting the taxpayer unjustifiably, and surely it should pay him back what had been unjustly taken from him. That would be the prima facie view, but your Lordships will find that in reading the Opinion of Lord President Clyde, the reasoning there founds upon the great difficulty in successfully unravelling all the transactions which may have taken place and which may be interconnected, one with the other, in some attempt to achieve what might be thought to be a perfect equity.
I would submit to your Lordships that the present law certainly achieves the result which the proposers of the Amendment seek, in the terms of the Amendment. So far as the criminal law is concerned, it is difficult to see how anyone could be adversely affected by a decision that an Assembly Act which created a crime was ultra vires. Thereafter, of course, no one would be prosecuted for breach of the ultra vires measure. But let me turn to consider the position of those who have 1124 been adversely affected by the operation of the Assembly Act as, for instance, where people have been convicted of offences under an Assembly Act which turns out to be invalid.
In that case the position would be similar to that which occurs quite frequently when some subordinate legislation of the United Kingdom Parliament is found to be invalid and as a result persons are found to have been wrongly convicted. While I cannot say what the Assembly would do, there would be scope for administrative and executive action which might take the form of granting pardons or making ex gratia payments of the kind that were made in the second case brought to our attention by the noble Viscount. The prerogative of mercy is, of course, available; it is in fact a non-devolved matter under Clause 60, and that could be used if it were desirable.
So far as civil cases are concerned, we believe it would be highly dangerous to depart from the well-known and well settled rules which I have outlined above. It would really be quite impossible to work out all the permutations that might result if one attempted to deal with all the various inequities which would be thrown up by an attempt to restore to his previous position everyone who had acted on the faith of a valid Scottish Assembly Act. Noble Lords may well consider that the present law achieves a broadly equitable result and that it would be dangerous to meddle with it.
If I can just draw one analogy in concluding, from time to time the courts have to decide the difficult question of which of two innocent parties should bear the loss caused by the fault of neither of them. This is an analogous type of question, and I believe that this is the kind of matter which is best left to the courts to solve in accordance with principles which they have been applying for many years. It is for these reasons the Bill is silent. I would certainly foresee that if the consequences were such that they could be put right by some form of administrative action, then that kind of action would be considered and taken in a case where that was suitable, particularly, for example, in a case where the beneficiary of some payment which should not have been made, because the measure under which it was made was ultra vires, was a public body.
Viscount COLVILLE of CULROSS
I would think that not only this Committee but anybody else who is interested in the Bill will be very grateful for that explanation. It is something that we have so far waited for in vain in the course of this Bill as regards this particular point, though, if I may say so, it is in line with many other admirable explanations that have come from noble and learned Lords opposite. I do not suppose for one moment I would wish to take it any further. The noble and learned Lord has now clarified some things which I believe have worried a number of people. I would say: "Thank you very much", to the noble and learned Lord, and beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 10.28 p.m.
Viscount COLVILLE of CULROSS moved Amendment No. 185:
Page 72, line 9, after ("Advocate") insert ("or any person who can show that he would be directly affected if such issue were not determined").
§ The noble Viscount said: This is a slightly different point. I think it probably raises the same point that my noble friend Lord Selkirk raises in Amendment No. 186, or a very similar point, and it certainly goes also with Amendments Nos. 193 and 197; though 197 is wrongly drafted, it raises a slightly different but connected issue. The Bill at present provides that when a devolution issue arises for determination on the question whether or not it is within the powers of the Act the person who can institute proceedings is the Lord Advocate in Scotland and the Attorney General in England and Wales. It so happens that nobody can do it in Northern Ireland at all; I do not know why, and although Amendment No. 197 is not correctly drafted, the point of it is to discover who is supposed to do it in Northern Ireland and why nobody is provided for in the Bill.
§ I should have thought that it was probably the case that not only would the Lord Advocate or the Attorney General be allowed to institute proceedings of this sort—I imagine by way of an action for a declarator in Scotland or by way of judicial review in England and Wales —but that anybody who was directly interested or directly affected by the point 1126 that was ultra vires would also be able to do so. My difficulty is that once again the Bill only provides for the specifically named individual to institute these proceedings, and, as I said, there is no provision for anybody in Northern Ireland to do so.
§ 1 believe that the new rules of the Supreme Court for judicial review in England and Wales would certainly enable a person who was directly interested, rather on the analogy of public nuisance, to have a locus standi to bring an action for judicial review by way of declaration in the High Court. I am afraid that my knowledge of the Acts of Sederunt is not sufficiently good to know whether a similar situation would prevail north of the Border. We also have Northern Ireland.
§ Could the noble and learned Lord say whether, if there was a situation that did not involve any other course of action, there is no question of damages, for instance, at that stage? The private citizen who is specially interested, in all three parts of the United Kingdom concerned, may himself institute these proceedings in order to get an action for the decision whether or not the matter is ultra vires on its feet. It was for that reason that I put down these Amendments. I am quite sure that he should be able to do so and not have to leave it to the Lord Advocate or the Attorney General. I beg to move.
§ 10.31 p.m.
§ Lord McCLUSKEY
Perhaps I may address myself particularly to the Amendment which relates to paragraph 4 of Schedule 12, although I realise that there are slightly different issues which arise in relation to the connected Amendments and to the corresponding paragraphs in the other parts of the Schedule.I think that I correctly noted the noble Viscount as saying something to this effect: the Bill provides that the person who can raise proceedings is the Lord Advocate. With respect, I would suggest to him that that is not quite accurate. The whole context of Schedule 12 is that there may be proceedings, and these will be ordinary proceedings. If in the course of the ordinary proceedings a devolution issue, as defined, arises, then certain consequences follow. That is the scheme 1127 of Schedule 12. Paragraph 4 begins with the words:Without prejudice to any power exercisable apart from this paragraph, proceedings for determination of a devolution issue may be instituted by the Lord Advocate and defended by any person who, as a Scottish Secretary…performs functions corresponding to those performed by a Law Officer of the Crown.
In our view these Amendments are unnecessary. It may be that doubts have been raised in the minds of those who put down these Amendments by the inclusion in paragraphs 4, 12 and 19 of Schedule 12 of specific provisions to which I referred, authorising the institution of proceedings for the determination of devolution issues by the Lord Advocate, the Attorney General, and the Attorney General for Northern Ireland respectively. These provisions were considered necessary, having regard to the unique status accorded to devolution issues by the provisions of Schedule 12, to ensure that no possible doubt could arise as to the powers of these Law Officers to act on behalf of the Government, or, in the case of the defender, on behalf of his administration, in bringing the challenge before the courts whether or not they otherwise have title or interest to sue. The same considerations do not however apply in the case of proceedings instituted by any other person. There is no more a restriction on the right of any person to raise proceedings to have a devolution issue determined than there is in relation to any form of vires challenge to subordinate legislation and the like, or indeed any other form of legal proceedings.
It is of course necessary for a person who has instituted proceedings to be able to show that he has a valid interest and a title to do so. If he cannot discharge this duty the court will not entertain his action. In Scotland, proceedings raised without a valid interest being shown would in practice be met by the plea of no title to sue. In England I am advised that there is the need to show locus standi. In the latter connection the right of any person to institute proceedings will of course be more secure where he is able to show that the provision to which his challenge is directed affects him in a particular way and not merely in common with, for example, all other persons, when his locus standi might be affected by the extent to which his challenge raises an 1128 issue of public interest. That consideration may, however, not be relevant to the same extent in relation to proceedings instituted in Scotland, where it appears likely that proceedings under Schedule 12 of the Bill will, for the most part, arise.
We believe that the Amendments as framed would effectively restrict the right to institute proceedings. As the Bill stands, anyone could institute proceedings if he has a valid interest. But the Amendments provide that the person has to be "directly affected". They would therefore seem to remove the right to sue from the person who has a valid interest but who is only indirectly affected by the devolution issue in question, and that could unduly narrow the scope for instituting proceedings.
The Amendment of the noble Earl, Lord Selkirk, which was mentioned, may be an attempt to go much wider and to enable anyone to institute proceedings whether or not he has a valid interest. If that is the intention then it would seem to be an unnecessary widening of the general provision that unless a person can show that he has a valid interest to institute proceedings the court will not entertain his action.
In summary, I ought simply to say that the proceedings, which form the subject matter of this Schedule, will come before the court when a person can qualify a title to sue or an interest in bringing the action. Paragraph 4 in Part II and the related paragraphs in the other Schedules are simply there to make it quite clear that, even if he cannot otherwise and under the ordinary law, qualify an interest which would give him a right to sue, or, indeed, in the case of the defender, qualify an interest which would give him a right to appear and maintain a defence, this paragraph puts that matter beyond doubt. Accordingly, the Lord Advocate on the one hand in Scotland, and the Scottish Secretary on the other, also in Scotland, can be parties to proceedings even if they cannot pass the normal test.
The Earl of SELKIRK
I thank the noble and learned Lord for his comments. I take it that Schedule 12 would be unnecessary if one did not want to bring in the Lord Advocate. It says:Without prejudice to any power exercisable apart from this paragraph".1129 In other words, the private individual, provided he had an interest in it, would be fully entitled to sue, even if paragraph 12 was not there. I understand that that was substantially what the noble and learned Lord said. The purpose of paragraph 12 is to bring in the Lord Advocate and the Solicitor General in Scotland and England.
The Earl of SELKIRK
I mean paragraph 4 of Part II of Schedule 12. This is brought in, but the right to sue, for anyone who has an interest, would be valid even if that Schedule was not there at all.
§ Lord McCLUSKEY
I was seeking to make clear, although I am not at my best at this time of night, that one could, in effect, take out paragraph 4 altogether and Schedule 12 would still work perfectly well and perform its proper function, which is to provide the machinery for determining devolution issues and channelling devolution issues in particular directions. Paragraph 4 makes clear beyond doubt that the Lord Advocate, on the one hand, and the Scottish Secretary, who is the Law Officer, on the other hand, can be parties to a litigation to determine such a question even if they cannot pass the normal test, which the court requires of them, of demonstrating that they have an interest which would justify the raising and defence of an action.
Viscount COLVILLE of CULROSS
Again I am grateful to the noble and learned Lord for that full and helpful explanation. May I come back to Northern Ireland on Amendment No. 197? In the meanwhile, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 186 and 187 not moved.]
§ 10.40 p.m.
Lord DIPLOCK moved Amendment No. 188:
Page 72, line 39, leave out ("Judicial Committee of the Privy Council") and insert ("House of Lords").
§ The noble and learned Lord said: I beg to move Amendment No. 188. This Amendment can, I think, be discussed with Amendments Nos. 190, 192, 194, 196, 198 and 200, because they stand or fall together. Amendment No. 201 is also closely connected and, I would suggest, should be discussed at the same time, but it does not necessarily stand or fall with the others.
§ Even at this late hour I hope that I may be pardoned for spending a few minutes in explaining what I understand to be the scheme of Schedule 12. I shall no doubt be corrected if I am wrong because it is not all that simple. It deals with two matters: first, with post-enactment challenge to the validity of Acts of the Assembly which have got through the Section 19 sieve. I think that very rarely will that challenge be made, because one would expect the sieve to be an effective one. The other matter it deals with is challenge to the exercise of executive functions by the Scottish Executive, and also possibly with challenge to subordinate legislation. But that is a matter that will be looked into. That will be the common case of a devolution issue which comes within Schedule 12.
§ Such a challenge may arise in legal proceedings in two ways. First, there may be a direct challenge in Scotland or in England or Wales—but not in Northern Ireland—by an action between the appropriate Law Officers of the United Kingdom —the Lord Advocate in Scotland, the Attorney General in England and Wales, and the equivalent of the Law Officer of the Scottish Executive. That challenge —the action in that form—will go in Scotland, in the first instance, to the Court of Session, or in England, in the first instance, to the High Court. The only issue in that action will be a devolution issue.
§ The other and, I suspect, commoner route by which a devolution issue arises in litigation will be in civil or criminal litigation by or against private individuals or local authorities, or the like. When it arises in that form it is unlikely that it will be the only issue in the litigation. There will generally, and almost always in criminal proceedings, be issues of fact to be decided, because issues of law arise, and arise only, out of facts. There may well be other points of law 1131 and of construction in the litigation, and a devolution issue may arise as one of the issues in any court, civil or criminal, and in England in any tribunal, whether it be from the magistrates upwards. In all those cases the Lord Advocate in Scotland, the Attorney General and the Scots Law Officer have to be notified.
§ We have got in each of these cases proceedings started in a court of first instance—you cannot start anywhere else —probably in Scotland, and maybe in England and Wales or in Northern Ireland. It is most likely that this kind of litigation will start in Scotland. If the ordinary course is taken, and there is nothing in the Schedule which prevents the ordinary course from being taken, the issue or issues in the action, including the devolution issue, will be decided in the first place by the court of first instance, and on appeal to an appellate court (the Inner House in Scotland, or the Court of Appeal in England) with a final appeal ending up, with leave from both those jurisdictions, in the Appellate Committee of the House of Lords, with one exception: that a criminal case from Scotland does not come on appeal to the House of Lords but stops in the High Court of Justiciary. That would be the ordinary course taken in post-enactment litigation in which a devolution issue arises as one of the issues in the action.
§ The Schedule provides for an alternative course. The court of first instance may —not must; it has a discretion to do so or not —refer the devolution issue, and nothing else, to an appellate court without deciding it itself. In Scotland, in civil cases it would refer it to the Inner House of the Court of Session without deciding it itself; in England it would refer it to the Court of Appeal without deciding it itself; and in criminal cases in Scotland it would go to the High Court of Justiciary —to a court, in fact, of three judges of that body.
§ So the devolution issue gets to the same place, the same appellate court, in each of these jurisdictions, as it would upon an ordinary appeal, but it conies there on one of the issues only. Except where the devolution issue is decisive of the whole proceedings— as it would be, for instance, in the inter-Government action, the inter-Law Officer action where the devolution 1132 issue is the only one—it is unlikely that the court of first instance would use the reference procedure at all.
§ It inevitably involves delay if the case has to come back afterwards for decision of the other issues, as nearly always there would be. Experience has shown, and certainly it has demonstrated to me over many years, that except where the decision of a particular issue of law is decisive in the case, whichever way that issue is decided, the only effects of reference of a particular issue (which is the alternative procedure provided for in the Schedule) are expense and delay—expense to the litigants and delay to the litigants.
§ Therefore most cases in which a devolution issue arises would take the ordinary route; that is to say, a decision on all issues at first instance, followed by appeal if the parties so desire, appeal to an appellate court, the Inner House of Session, and a further appeal to the House of Lords. So, by either route, and generally by the second and ordinary route, it comes to the same appellate court at the intermediate stage; the Inner House in the case of Scotland and the Court of Appeal in England.
§ When the other route is taken, as I say, it comes to the same place. But, when we get to the further appeal from the Inner House or from the Court of Appeal, if it has taken the ordinary route it comes to the Appellate Committee of the House of Lords; if it has taken the reference route it comes to the Judicial Committee of the Privy Council. I ask myself and, having asked myself and found no satisfactory answer, I ask my noble and learned friend on the Woolsack: why?
§ So far as I can see, there is no conceivable legal reason for it. The composition of the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords, as it is generally constituted, is almost identical. Each consists of the Law Lords, ex-Lord Chancellors and retired Law Lords. In the Judicial Committee of the Privy Council an ex-Lord Justice of Appeal and, for a few weeks in the summer, a distinguished member of the High Court of Australia or the Supreme Court of New Zealand may from time to time come and join us, but otherwise the composition of the Judicial Committee and of the House of Lords is the same day in and day out.1133
§ I was sitting this morning in the Judicial Committee. I was sitting with the same people a fortnight ago in the House of Lords. When I say that the composition is the same, I should perhaps add that there are those who are qualified to sit in the Judicial Committee who are not qualified to sit in the House of Lords. All Lord Justices of Appeal in England are Privy Councillors and are so entitled to sit, and there are I think one or two Members of the Scots Judiciary who are Privy Councillors, and the Lord President of the Council.
§ The LORD CHANCELLOR
There is an old convention that he does not sit, so I hope we shall not have that red herring drawn across the path.
§ Lord DIPLOCK
Having searched my mind to see if I could find some legal reason for this curious divergence, I then wondered whether there was a Scottish reason or some sensitivity, because there is no right of appeal in criminal matters from Scottish courts to the House of Lords; I wondered whether they felt sensitive if there were a reference to the House of Lords, instead of the same people labelled as the Judicial Committee of the Privy Council.
I took the occasion to consult the Lord President of the Court of Session on the matter, to see whether my suspicions of sensitiveness (which I had rather gathered from my noble and learned friend Lord Fraser of Tullybelton) were generally shared among the Scottish Judiciary. I was assured that the consensus of opinion among the Scottish Judiciary coincided with mine, that it would be much more sensible to go to the House of Lords, instead of having these alternative labels to the people with the same heads.
Finally, I asked myself whether there could be a political reason behind this matter—a desire, perhaps, to pack the court to which the reference was made, in order to achieve the result desired. If I found no conceivable legal reason, I found it quite impossible to concede that there was that political reason, because the suggestion that their decision upon what is a question of pure law could be influenced by the selection of the persons likely to get the right result, would be a slur upon the Judiciary. It 1134 would involve a gross injustice to the subjects, the private litigants, who would be the persons ordinarily concerned.
So with no legal reason, no reason of Scots sentiment, no political reason, I asked myself again, why should it be that through one route the question goes to the Judicial Committee, and by the other route goes to the House of Lords? The matter becomes most ludicrous when one gets to the House of Lords itself by the ordinary procedure, and one looks at paragraph 23 of the Schedule, which says that,If a devolution issue arises in judicial proceedings in the House of Lords"—which is where it will arise when the ordinary route is taken—it shall be referred to the Judicial Committee of the Privy Council, unless the House considers it more appropriate, having regard to all the circumstances, that they should determine the issue.
Speaking for myself, I should, I think, always regard it as more appropriate in the Appellate Committee that we should decide the issue there, rather than going through the solemn farce of getting into the Daimler car (which was described a fortnight ago) and moving over to the Privy Council and listening to the arguments there. It would be a little more than a solemn farce, because one would have to give the parties an opportunity of making representations to us as to whether or not we should refer. We should, I suspect, have to get another set of documents and the like. The farce would be not only solemn but expensive and dilatory. Again, I ask my noble and learned friend the Lord Chancellor: Why this proposal for having the same people but with two different names dealing as alternative bodies with exactly the same question? I beg to move.
§ 11 p.m.
§ The LORD CHANCELLOR
We had a dress rehearsal of this debate, if I may so call it, when we had the discussion, on that spirited, memorable occasion, about the proposed setting up of a Constitutional Council. I think that what emerged from our earlier debates was general acceptance, though I agree it was not unanimous, that at any rate pre-Royal Assent references under Clause 19 should go to the Privy Council. 1135 Though there was not totally common ground, the noble and learned Viscount, Lord Dilhorne, and perhaps one or two others, were, if I may say so, in a minority.
If that is the procedure to be followed —that is to say, that is the route which devolution issues arising at the pre-Royal Assent stage are to follow—then, in the view of the Government, it is entirely consistent and sensible that that same body should have responsibility, not only for pre-Assent references but also for post-Assent references. I recollect the noble and learned Lord, Lord Wilberforce, saying in that earlier debate:Even for the United Kingdom, which has lived on anomalies and eccentricities for a great many years, this seems a very strange and illogical set-up to have one body doing the pre-enactment and another doing the post-enactment".—[Official Report, 18/4/78; col. 10921.I think there is merit in consistency.
It is common ground that the Bill we are discussing raises very important constitutional issues, and in the view of the Government it makes good sense to introduce a special procedure for devolution vires questions, which we are considering in dealing with Schedule 12—and they are there described as "devolution issues"—to be dealt with by the Judicial Committee of the Privy Council. That has traditionally had responsibility for considering constitutional matters, and in those proceedings not only could there be present, and no doubt would be present, Scottish members of the Appellate Committee, but from time to time the Scottish Lords of Session who are Privy Councillors could be invited to attend.
We have been told by the noble and learned Lord, Lord Diplock, what the composition of the Judicial Committee is. Its composition for particular issues, as has been conceded on other occasions, has never been criticised; and I was glad to hear that during the present occupation of the Woolsack, or indeed any apprehended one hereafter, it is unlikely that there would be any fear of a special "packing" for the purposes of considering a devolution issue.
The standing of the Privy Council in this constitutional field is very high. The argument that the Judicial Committee experience has been gained largely in relation to the Colonies and Dominions 1136 and therefore is not, perhaps, wholly relevant to the appropriate relation to the Scottish Assembly is, in my respectful submission, something of a non sequitur since the problems of legislative and executive competence which could arise are not unlike those which have arisen in earlier federal and devolved Constitutions. I submit that it is entirely of a piece with the historic and existing pattern for the Judicial Committee to be given similar responsibilities in relation to the Scottish Assembly; and, as the noble and learned Lord, Lord Hailsham, said on an earlier occasion, there is certainly nothing unconstitutional in relation to Scotland in what is proposed.
Schedule 12 itself, in paragraph 10, provides for what is to happen when what the noble and learned Lord, Lord Diplock, so conveniently called the ordinary route other than the reference route is followed. When the case comes to the House of Lords through the ordinary route—and there could, even in respect of that kind of case, have been frequent occasions on which as a preliminary point of law the vires question could be referred; and I am sorry to hear that his experience is that preliminary issues or points of law very rarely determine the decision in case; sometimes it does have that effect, but that may be by the way—paragraph 23 of the Schedule provides a discretion for the House of Lords to deal with the matter. It will be for the House itself then to decide how the discretion is to be exercised in practice.
The Government consider that the test proposed—namely, what is appropriate according to the circumstances—should be a workable one; and the Appellate Committee, or the Appeal Committee, will take into account not only the preference of the parties that will be concerned but also the possibility of saving time and expense by adopting the course of the House of Lords itself dealing with the devolution issue or transferring it to the Judicial Committee. But there will be some cases, I submit, which are more likely to be referred to the Judicial Committee than to be kept in the House of Lords itself. If, for instance, the only point of law certified on a criminal appeal from the Court of Appeal in England and Wales was a devolution issue, then a reference to the Privy Council might well be made. The same could 1137 well be true of a civil appeal from the Court of Session or a Court of Appeal where it was plain from the documents that were to be considered on appeal that the only point involved was a devolution issue.
But if there were a number of intertwined matters to be argued—the facts of the case, the merits of the case—in addition to the devolution issue, the House might well find that it would not be to the convenience of anyone concerned to make a reference to the Judicial Committee. So it seems to me that any mischief that may exist in the following of the two routes can really be disposed of in respect of the cases going by the ordinary route, by the determination by the House of Lords itself, by the exercise of the discretion that is given to it as to how the case should proceed. Accordingly, in accordance with what I submit is precedent, and indeed principle, what is proposed in the Bill would seem to meet the circumstances of the case in dealing with devolution issues.
§ Lord WEDDERBURN of CHARLTON
Having ventured to intervene in this Chamber at 11 o'clock last night, I intervene again tonight at 11.10 p.m., and promise to detain your Lordships for not very long. The noble and learned Lord the Lord Chancellor, I am sure, is aware that there are some behind him who will be voting for this measure as it stands with some reluctance, in the respect which he has described, that is, that in paragraph 23 of the Schedule the House of Lords is given a discretion as to whether or not it should refer a devolution issue to the Judicial Committee of the Privy Council. The noble and learned Lord the Lord Chancellor stands in the middle and has all the virtues of the middle course, being pressed on the one side by those who wish to retain a complete jurisdiction for the House of Lords, and by his noble friends who perhaps, if they dared to do so, would urge that that jurisdiction should be removed in devolution issues.
Why do I say that when the noble and learned Lord, Lord Diplock, in the two types of legislation he described, has so persuasively advanced reasons why matters should rest with the House of Lords? I say it because I take issue with the noble and learned Lord, Lord 1138 Diplock, as to whether there is an issue of pure law. In appellate jurisdictions there is always a high content of policy. If we are setting up—and let there be no mistake that we are setting it up, apart from our EEC European Court obligations —within this jurisdiction, something of the nature of an embryonic constitutional court, then, in the applications and interpretations of the law, which today are infused with policy, without detraction from the rule of law in every court in the land, and in particular in the appellate courts and in the House of Lords, that element of policy, which every noble and learned Lord who sits in the Appellate Committee knows exists, but which we lawyers sometimes dare not talk about, contrary to our American brethren, will be there in a broader and more fulsome form. For my part, I would wish to see a court which could develop.
I am sorry that the noble and learned Lord, Lord Diplock, spoke about "packing" any court, because naturally no Administration in this land would do so. But, if I say that, my embryonic constitutional court will have to develop, it will have to be flexible and, in the best traditions of the common law, pragmatic, it will have to understand the Brandeis brief on the constitutional issues of the day, it will have to be supple, bring in new people and bring in those who are Privy Councillors who perhaps today do not take part in the proceedings of the Judicial Committee of the Privy Council.
If I think of that as my embryonic constitutional court, I see great merit in saying not what the Government have said—that it may go through one of the two procedures to the Judicial Committee of the Privy Council—but in saying even more; that is, that it must go to one body and one body alone. That is a body which will develop and which Privy Councillors, perhaps as yet undreamt of by the noble and learned Lord, Lord Diplock, might well attend and which will, perhaps in the year 2000, produce a better constitutional court and constitutional jurisprudence than some other quasi-federal or federal jurisdiction. It is for that reason that I would urge your Lordships not to do what I would wish—namely, insist that the matter goes to the Judicial Committee—but to take the middle road which the noble and learned Lord the Lord Chancellor has suggested. 1139 Thus, it may go there at least, and we will see how we go, and we shall not agree to Amendments which would insist on the House of Lords having a final and determining voice in such a matter.
§ Lord FRASER of TULLYBELTON
We have been over this ground before and I do not want to detain your Lordships longer at this time of night; but I think it is of some importance to set out the position which, I am afraid, differs from my noble and learned friend Lord Dip-lock's. We start from the position that it seems to be agreed, or at any rate accepted, that for pre-Assent references the Judicial Committee is the appropriate body to give an advisory opinion. The Judicial Committee having, so to speak, got off to a flying start, the onus is rather on those who would give the later stages of adjudication to some other body, so that the Judicial Committee starts off with an advantage in that respect. At an earlier stage, I think the noble and learned Lord, Lord Wilson of Langside, suggested that it was in some way offensive to Scottish sentiment to allow these matters to be dealt with by the Judicial Committee, and that Scotland or the Scottish Assembly was being put in the power of some colonial Legislature. I do not see him here tonight and I understand that that point may have been dropped. In any case, I must say with all respect that I think it is obviously a bad point because the Judicial Committee would be dealing with devolution issues arising in Scotland or in England or in Northern Ireland. It is not the place that it comes from that matters; it is the class of litigation of this very special kind which would go to the Judicial Committee. That point does not really arise.
It seems to me that the importance of using the Judicial Committee for this purpose is that it marks it off as a new tribunal for this purpose dealing with a special and quite novel class of litigation—constitutional litigation within the United Kingdom which has hitherto been unknown since there has never been an opportunity for it. I find myself very much in agreement with the noble Lord who has just spoken, that we have here a kind of embryonic constitutional court which seems to me to be desirable in order to mark the importance of this kind of 1140 litigation. For that reason, in addition to the fact that the pre-Assent of adjudication is for the Judicial Committee, it seems to me that this is the appropriate body for dealing with post-Assent devolution issues.
There is one other matter that I should like to mention. My noble and learned friend Lord Diplock said that he had been informed by the Lord President that there was no support among Scottish judges for my view that criminal appeals should not find their way to the House of Lords at all. That may be so; I am afraid I am not well placed to take a canvass of my friends in Scotland. All I know is that in the early stages of this Bill the Lord President, I think, made some representations to the Government about it, in the course of which he said that in his view it was hopeless to attempt to achieve unanimity among Scottish judges on it. Having seen the degree of unanimity that prevails between the Law Lords, your Lordships may think there is some force in that. I still adhere to the view that it would be a pity, for historical and constitutional reasons, that any criminal appeal originating in Scotland should ever come to the House of Lords. I would prefer to see it go to the Judicial Committee. As I said in an earlier debate, it is not a matter on which I can work up any enormous passion.
The last point I want to mention is this: it arises on paragraph 23—the power suggested to the House of Lords to remit the matter to the Judicial Committee unless it sees reason to the contrary. Of course it is very easy to make fun of five old gentlemen going in a taxi from here to Downing Street. I do not think that one should allow oneself to be diverted by that kind of consideration. Nothing is easier than to make fun of innumerable parts of our Constitution which are respectable and admired and, on the whole, to be preserved. Nothing can be more ridiculous than the giving of a formal judgment in this House in the morning by the five old gentlemen we have just heard about. If you want to make fun of it, nothing would lend itself to fun more than that, far more so than getting into the Daimler car. I do not want to be disrespectful, but it could be thought to be absurd.
There are many other parts of our constitutional arrangements, which will 1141 be present in your Lordships' minds, which it is easy to make a guy of. But it is important to me, and I imagine to most of my noble and learned friends, to preserve proper forms of constitutional order in dealing with legal matters. That is what the law is all about. If it involves people going from here across to Downing Street, it may be a little inconvenient but, if it is otherwise appropriate and proper, we should accept the inconvenience, go through the proper constitutional forms and do things decently and in order. So that I am quite unmoved by the fun that has been poked at paragraph 23. For all these reasons, the Judicial Committee remains the proper body for dealing with constitutional issues under this Bill, and I hope that will be the decision of your Lordships.
§ 11.21 p.m.
§ Lord KEITH of KINKEL
I regret very much that what I shall say will expose an even wider rift in the ranks of the Law Lords, and between my noble and learned friend Lord Fraser of Tullybelton and myself. I support this Amendment and the reason why I do so I shall try to state quite briefly. Post-devolution issues, unlike pre-enactment issues, will be issues that involve the rights of individual citizens. It is not a matter of constitutional theory at that stage; it is a matter of whether some subordinate legislation, which affects the rights and obligations of citizens, is or is not valid. The kind of issue which will arise, as I see it, is no different in principle from the kind of issues that arise in connection with the subordinate legislation with which we are already familiar.
For the most part, these issues, affecting the rights of citizens arising after enactment, will be dealt with by the ordinary courts of the land. They may be decided in Scotland in the sheriff courts, and that may be an end of them, or they may go to the Court of Session or may, conceivably, go right up to the top. What is proposed when an issue goes right up to the top, instead of its proceeding through the whole of the normal courts of the land, is that at that stage it will be diverted off the normal rails to which we are accustomed into the Judicial Committee of the Privy Council.
1142 I believe that, in any matter that affects the rights of citizens, they should have recourse right up to the top through the ordinary courts, and the House of Lords is the appropriate tribunal to be the final Court of Appeal. I cannot see that any adequate justification has been shown for changing the direction of the rails at that stage. It is fair to say that the status of the decisions of the Judicial Committee of the Privy Council is a very high one, but it is also fair to say that it is not quite such a high one as that enjoyed by decisions of the Appellate Committee of this House. So I think, in a sense, that it is a little derogatory to submit these issues to the Judicial Committee.
It is asked: Whereas the Judicial Committee is to decide pre-enactment devolution issues, is it reasonable that some other tribunal should be the final Court of Appeal on post-enactment issues? But, in my submission, there is reasonable logic in that and some historical justification. The function of the Judicial Committee has been, heretofore, advisory, and it is reasonable that it should act in an advisory capacity in pre-enactment devolution issues. But when it comes to the actual decision of these issues post-enactment, when the rights of citizens are affected, then I believe it is right that the final decision should lie in the Appellate Committee of the House of Lords.
Viscount COLVILLE of CULROSS
If I may say one word, we on this side sadly miss on this Amendment my noble and learned friend Lord Hailsham, and I wish that he were not suffering his tragic affliction on the other side of the world at this moment. But departing from the aspirations and hankerings of the noble Lord, Lord Wedderburn, which might very well have been backed up by the noble and learned Lord, Lord Seaman, had he been here, and assuming for the moment that the personnel will be the same in either place, what really worries me is the question of delay and expense. After all, we are not doing this for fun. We are doing it to deal with active litigation which is going on, usually between parties. Even if the Lord Advocate is on the one side, there could easily be an ordinary citizen as the party on the other. If the process which we are inserting into this legislation were to involve extra stages and, therefore, 1143 extra expense and extra delay, that would be my reason for trying to make it more simple. I should have thought the course of simplicity would be to stick to the ordinary procedures of appeal which are those which the noble and learned Lord, Lord Diplock, is trying to insert.
The Earl of SELKIRK
I hesitate to express a view on this Amendment, but I should like to make three points. I believe that I am correct in saying that the Judicial Committee is not a part of the judicial system of this country. Secondly, with the noble and learned Lord, Lord Diplock, I would say that there are always other parts which enter into the question. There will never be an absolutely pure devolution issue; other issues will require to be decided. Thirdly, the noble Lord opposite said that this brings politics into the question, and that it is easier to bring it to the Judicial Committee than it is to bring it to the House of Lords. I believe that it is better to have an established system which we know thoroughly. If any element of politics were to enter into it, the confidence of Scotland in the system would be broken.
The Earl of SELKIRK
The noble Lord used two words, "policy" and "politics". But if he meant to say, "policy", I readily accept that word. Policy, however, does not enter into the question. It is law which has to be decided. For that reason, I come down on the side of the noble and learned Lord, Lord Diplock.
§ Lord DIPLOCK
In answer to my invitation, the noble and learned Lord the Lord Chancellor sought to explain to me why. May I deal with the suggestions which he made. The first was that because I had accepted that a reference to the Privy Council in pre-enactment proceedings was appropriate, it therefore followed that it was appropriate in the ordinary process of appeal. The Privy Council has power, if it is exercised, to give advisory opinions which the Appellate Committee of the House of Lords, at any rate, has not. Under Clause 19, advisory opinions go direct to the Privy Council as the court of first and only instance, and 1144 it gives its opinion on the matter. Finally, in Northern Ireland, under the Government of Ireland Bill, one had the precedent of advisory opinions going to the Privy Council but the ordinary process of appeal going to the House of Lords, and that had worked perfectly well.
Secondly, the noble and learned Lord said that the Privy Council had experience of deciding constitutional matters. The experience of the Privy Council is the experience of the members of that Council; it is not a disembodied institution. The experience of the Privy Council in constitutional matters is identical with the experience of the members of the Appellate Committee of the House of Lords, because they are the same chaps. And if it is suggested that policy ought to come into what I consider to be a question of law, they are still the same chaps so far as policy is concerned.
It was not my noble and learned friend on the Woolsack but the noble Lord, Lord Wedderburn, who indicated that the Judicial Committee would be a better body to do it, because one could get on to the Judicial Committee people who would have the right ideas on policy. That was what I meant when I talked of "packing" a court but regarded it—as I still regard it—as being inconceivable while the present Lord Chancellor is responsible, as Lord Chancellors are, for selecting those who sit on the Privy Council as well as in the Appellate Committee. But whether all future Lord Chancellors would take the same view I began to have some faint glimmers of doubt as I listened to the noble Lord, Lord Wedderburn of Charlton.
Finally, as a matter of consistency, under this Schedule when the matter comes through the appellate procedure it is more likely to go to the House of Lords and be decided there whenever there is any other issue apart from a devolution issue. So we are not getting any particular consistency, either in form or in substance, by having these alternate routes for the same people under different names to decide the same matter.
§ 11.32 p.m.
§ On Question, Whether the said Amendment (No. 188) shall be agreed to?
§ Their Lordships divided: Contents, 27; Not-Contents, 28.1015
|Ailsa, M.||Ellenborough, L.||Northchurch, B.|
|Alexander of Tunis, E.||Elliot of Harwood, B.||Nugent of Guildford, L.|
|Amherst of Hackney, L.||Elton, L.||Onslow, E.|
|Ampthill, L.||Emmet of Amberley, B.||Orr-Ewing, L.|
|Atholl, D.||Exeter, M.||Polwarth, L.|
|Auckland, L.||Faithfull, B.||Porritt, L.|
|Avon, E.||Ferrers, E.||Rankeillour, L.|
|Balerno, L.||Fortescue, E.||Rawlinson of Ewell, L.|
|Berkeley, B.||Fraser of Kilmorack, L.||Rochdale, V.|
|Bourne, L.||Gisborough, L.||St. Aldwyn, E.|
|Burton, L.||Glenkinglas, L.||St. Davids, V.|
|Campbell of Croy, L.||Greenway, L.||Sandys, L. [Teller.]|
|Carrington, L.||Halsbury, E.||Selkirk, E.|
|Chelwood, L.||Hankey, L.||Sempill, Ly.|
|Clancarty, E.||Hylton-Foster, B.||Sharples, B.|
|Clitheroe, L.||Ilchester, E.||Skelmersdale, L.|
|Clwyd, L.||Jeffreys, L.||Somers, L.|
|Cockfield, L.||Kilmany, L.||Spens, L.|
|Colville of Culross, V.||Kilmarnock, L.||Strathclyde, L.|
|Cottesloe, L.||Kinnaird, L.||Strathcona and Mount Royal, L.|
|Craigavon, V.||Long, V.||Strathspey, L.|
|Cromartie, E.||Lucas of Chilworth, L.||Swansea, L.|
|Cross, V.||Lyell, L.||Teviot, L.|
|Cullen of Ashbourne, L.||McFadzean, L.||Thorneycroft, L.|
|de Clifford, L.||Marley, L.||Vickers, B.|
|Denham, L.||Montagu of Beaulieu, L.||Vivian, L.|
|Digby, L.||Morris, L.||Ward of North Tyneside, B.|
|Drumalbyn, L.||Mottistone, L.||Westbury, L.|
|Dundee, E.||Mowbray and Stourton, L. [Teller.]||Wilson of Langside, L.|
|Ebbisham, L.||Wolverton, L.|
|Effingham, E.||Newall, L.||Young, B.|
|Amherst, E.||Davies of Penrhys, L.||Henderson, L.|
|Amulree, L.||Donaldson of Kingsbridge, L.||Houghton of Sowerby, L.|
|Aylestone, L.||Douglas of Barloch, L.||Hughes, L.|
|Banks, L.||Dowding, L.||Jacobson, L.|
|Birk, B.||Elwyn-Jones, L. (L. Chancellor.)||Jacques, L.|
|Boston of Faversham, L.||Fisher of Camden, L.||Janner, L.|
|Brockway, L.||Foot, L.||Kaldor, L.|
|Byers, L.||Gaitskell, B.||Kirkhill, L.|
|Caccia, L.||George-Brown, L.||Leatherland, L.|
|Champion, L.||Gordon-Walker, L.||Lee of Newton, L.|
|Chitnis, L.||Goronwy-Roberts, L.||Listowel, E.|
|Collison, L.||Hale, L.||Llewelyn-Davies of Hastoe, B.|
|Cooper of Stockton Heath, L.||Hamnett, L.||McCluskey, L.|
|David, B.||Hampton, L.||Mackie of Benshie, L.|
|Davies of Leek, L.||Harris of Greenwich, L.||MacLeod of Fuinary, L.|
|McNair, L.||Shinwell, L.||Wallace of Coslany, L.|
|Maelor, L.||Simon, V.||Walston, L.|
|Morris of Borth-y-Gest, L.||Snow, L.||Wedderburn of Charlton, L.|
|Murray of Gravesend, L.||Stedman, B.||Wells-Pestell, L. [Teller.]|
|Northfield, L.||Stewart of Alvechurch, B.||White, B.|
|Norwich, V.||Stone, L.||Wigg, L.|
|Pannell, L.||Strabolgi, L. [Teller.]||Willis, L.|
|Platt, L.||Tanlaw, L.||Winstanley, L.|
|Rhodes, L,||Taylor of Mansfield, L.||Winterbottom, L.|
|Roberthall, L.||Thurso, V.||Wootton of Abinger, B.|
|Rochester, L.||Wall, L.||Wynne-Jones, L.|
Moved accordingly, and, on Question, Motion agreed to.
|Campbell of Croy, L.||Gridley, L.||O'Hagan, L.|
|Clitheroe, L.||Harvington, L.||Rankeillour, L.|
|Colville of Culross, V.||Keith of Kinkel, L.||Robbins, L.|
|Denham, L.||Long, V.||Sandford, L.|
|Dilhorne, V. [Teller.]||Lyell, L.||Sandys, L.|
|Diplock, L. [Teller.]||Monson, L.||Selkirk, E.|
|Dundee, E.||Morris, L.||Strathcona and Mount Royal, L.|
|Elliot of Harwood, B.||Mowbray and Stourton, L.||Tweeddale, M.|
|Ferrers, E.||Nunburnholme, L.||Wilberforce, L.|
|Champion, L.||Llewelyn-Davies of Hastoe, B. [Teller.]||Stedman, B.|
|David, B.||Stone, L.|
|Davies of Penrhys, L.||McCluskey, L.||Strabolgi, L. [Teller.]|
|Donaldson of Kingsbridge, L.||McGregor of Durris, L.||Tanlaw, L.|
|Elwyn-Jones, L. (L. Chancellor.)||Mackie of Benshie, L.||Thomson of Monifieth, L.|
|Fraser of Tullybelton, L.||Morris of Borth-y-Gest, L.||Wallace of Coslany, L.|
|Gaitskell, B.||Parry, L.||Wedderburn of Charlton, L.|
|Hood, V.||Perth, E.||Winstanley, L.|
|Kaldor, L.||Ponsonby of Shulbrede, L.||Winterbottom, L.|
|Kirkhill, L.||Sainsbury, L.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ 11.39 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.