AS AN AMENDMENT TO COMMONS AMENDMENT NO. 122 (Hansard, 25 October 1990)

§ Lord McCluskey
My Lords, I beg to move Amendment No. 122A. I do not say, and I hope that I did not say, that the noble and learned Lord the Lord Advocate had dealt with the matter inadequately. I said that the explanation was extremely difficult to understand because the amendments were grouped together. I believe that it is sensible to look at Amendments Nos. 122A, 122B and 122D together.
Those amendments relate to the terms of the new clause to be inserted before Clause 24. That new clause is designed to regulate the consideration of applications made to the Lord President and the Secretary of State by persons, not lawyers, who seek the right of audience and similar rights in the courts of Scotland up to and including this House sitting as a court of law.
1582 The first point to which I direct attention is in subsection (3). It provides that the Lord President and the Secretary of State shall take certain action. I shall not seek to make a point that was made on a previous occasion. The Government have considered it and decided against it. The Lord President and the Secretary of State are required to consult each other in considering a draft scheme submitted to them under section 23(1)". In Clause 23(1) one finds that the functions of the Lord President are different and separate from those of the Secretary of State. The Secretary of State must consider certain parts of the application and the Lord President must consider others. However, there may be some degree of overlap.
Subsection (5) of the new clause states: relation to any code of practice such as is mentioned in section 23(2) (b) (ii), the duty of the Secretary of State under subsection (1) above is limited to a consideration of any provision of such a code as would, in his view, directly or indirectly inhibit the freedom of a member of the body concerned to undertake all the work". Parts of the clause provide that the Lord President is to do one thing and the Secretary of State something else. Parts of the clause provide that the Secretary of State's consideration is limited to certain issues. Yet, subsection 3 of new Clause 23 makes it mandatory for each of them to consult the other about the whole scheme. With respect, that appears to be a bad piece of drafting. Their duty is by no means clear.
The matter is made slightly worse because at a later stage we shall see their functions. They are undoubtedly functions as distinct from powers, although I have yet to follow the difference. They are to be exercised by each as soon as is reasonably practical.
I do not understand what is proposed and, again, it appears to be a good example of confusion. I do not propose to deal with Amendment No. 122C which is a separate matter.
Moved, That Amendment No. 122A, as an amendment to Commons Amendment No. 122, be agreed to.—(Lord McCluskey.)

§ Lord Fraser of Carmyllie
My Lords, as I understand the approach of the noble and learned Lord, he wishes to deal with Amendments Nos. 122A, 122B, and 122D.
I accept that it is not the easiest of tasks to compare what is provided for within these new clauses and what is provided for within the existing Clause 23. However, if I have followed what the noble and learned Lord put forward, it seems to me that subsections (3) and (5) of the new clause provide for essentially the same as Clause 23(8). His anxiety about Amendment No. 122D is in essence covered by what is to be contained in subsection (10).
I appreciate that the noble and learned Lord does not much care for this scheme at all—and that is perhaps understated—but essentially these matters were considered in principle in this House at an earlier stage. Unless I am missing something, there has been 1583 no change in the principle of what is allowed for as between the clauses which left this House and what has now returned to this House.

§ Lord Cameron of Lochbroom
My Lords, with respect to my noble and learned friend Lord McCluskey, it is important also to have regard to subsection (6) of the new clause because that imports that e Lord President shall do something once he and the Secretary of State are satisfied about the draft scheme. I must say that I cannot see how the Lord President can find out that the Secretary of State is satisfied with the parts with which he must deal unless he has consulted with him. Equally, if the Secretary of State is not satisfied with the scheme then the Lord President is to refuse under paragraph (b) of subsection (6). I cannot see how that can be done without consultation.
I am not as fussed as the noble and learned Lord about the drafting. It seems to me that there is a coherence once the matter is fully thought through.
As regards the word "shall" in subsection (3) of the new clause, it must be "shall", and that only arises after subsections (1) and (2) have come into play. Thereafter, it must be mandatory that they consult to reach a decision in terms of subsection (6).

§ Lord McCluskey
My Lords, the noble and learned Lord the Lord Advocate said that he was missing something. I hesitate to agree with that and I should not like to speculate as to what it might be.
He missed my reference to subsection (1) which I did no. develop. That draws a distinction between the Lord F resident's consideration of Clause 23(2) and the Secretary of State's consideration of Clause 23(2) (b) and (c), that consideration being limited later on.
However, I cannot persuade the noble and learned Lord the Lord Advocate and I cannot carry with me my noble and learned friend Lord Campbell of Lochbroom. Therefore, I beg leave to withdraw the amendment.