HL Deb 09 June 1998 vol 590 cc971-96

.—(1) For the avoidance of doubt, the provisions of Article IX of the Bill of Rights 1689 and of that part of Article XXV of the Claim of Right Act 1689 which secures freedom of speech and debate to members of Parliament shall apply to the proceedings of the Assembly; and those Articles shall be construed accordingly.

(2) For the purposes of subsection (1) above—

  1. (a) proceedings of the Assembly shall not be questioned on grounds of non-conformity with Assembly standing orders except where such non-conformity raises a devolution issue within the meaning of Schedule 7 to this Act, and
  2. (b) speeches made in the Assembly shall be treated as having the same status in law in relation to proceedings of the Assembly as speeches made in Parliament have in relation to proceedings in Parliament.").

The noble and learned Lord said: I begin by apologising for visiting yet another Lord Mackay into deliberations on the Bill, particularly when in the same breath I indicate that in speaking to this and subsequent amendments I shall make reference to the Scotland Bill. I believe that there are similar threads between them, a view which I suspect is shared by the noble and learned Lord the Lord Advocate, who is in the Chamber and I suspect somewhat interested in what I have to say.

The first amendment raises the issue of according to the assembly the privilege that attends to what is said in this Parliament when cases are raised in courts throughout the United Kingdom. It seeks to provide that the provisions of Article IX of the Bill of Rights 1689 and the Scottish equivalent of that—namely, Article XXV of the Claim of Right Act 1689, which secures freedom of speech and debate to Members of Parliament,—apply to the proceedings of the assembly. It seeks to elaborate on the practical effects of that in subsection (2).

It may be instructive to bear in mind what lies behind the privilege that is incorporated in Article IX of the Bill of Rights. It is the need to ensure that as far as possible Members of this Parliament and witnesses who appear before the committees of this Parliament are able to speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by the privilege is to ensure that a Member of either House, or a witness appearing before a committee of either House, when he speaks, is not inhibited from speaking fully and freely.

That principle, coupled with the wider principle that the courts on the one hand and Parliament on the other are both astute to recognise their respective constitutional roles, means that the courts will not allow any challenge to be made to what has been said or done within the walls of Parliament in performance of Parliament's legislative function.

In tabling the amendment, I wish to make it clear that it is not intended in any way to prevent the executive functions which will be discharged by the assembly or any committee of the assembly or any individual on behalf of the assembly being appealed to the courts or made the subject of judicial review proceedings to any lesser extent than can happen at present. Nor, indeed, is the amendment designed to exclude any reference in court proceedings to speeches made either in this House or in another place when on the authority of the case of Pepper v. Hart it is appropriate that such reference should be made.

It is right that I should publicly acknowledge the assistance that I have had in framing the amendment from senior officials within the Public Bill Office. The amendment is designed to have several purposes. First, it is designed to encourage free speech in accordance with the principles as I have explained them, free speech not only by members of the assembly and in particular by the first secretary and the assembly secretary but also by those who will be called before the committees of the assembly to contribute to the discharge of its functions.

Secondly, it seeks to extend to the assembly and encourage it to recognise the principle which currently guides the relationship between this Parliament and the courts. Again, I have already made reference to it; namely, the recognition and respect that the one has for the other's constitutional role.

Thirdly, the intention is to discourage the number of occasions on which legal proceedings are raised for political purposes. Those of us who have practised in the courts know that from time to time, whether to do with the affairs of local authorities, where it happens quite frequently, or to do with the conduct of referendums, where it happens less frequently, actions are raised for a political purpose; that is, to draw attention to particular political causes, to attract the media to the court proceedings and then, once the necessary publicity has been received and the political mileage has been made, the proceedings are abandoned in the event that they prove to be unsuccessful, which in most instances they do.

As I construe this Bill and the provisions of the Scotland Bill, it would be possible for court action to be raised with a view to preventing the assembly proceeding to deal with a certain piece of business, interrupting the assembly during the course of proceedings or seeking to quash the assembly's decisions when they are concerned with the approval of subordinate legislation. Whether it be done by injunction proceedings in England and Wales or interdict proceedings in Scotland, technically speaking, it would be competent to do so. That is not the situation which applies to proceedings in this Parliament. Therefore, a third purpose is to discourage the number of occasions on which disgruntled politicians, of whatever party, have recourse to the court to try to frustrate the will of the elected members.

The fourth purpose is to exclude the possibility of parties and their respective lawyers trawling the speeches made by assembly members with a view to seeing whether anything said can support judicial review proceedings which may be proceeding on the grounds of error of law, failure to take account of a relevant consideration or whatever, or equally to prevent such attempts to be founded on irregularities of procedure. All those matters are commonplace when judicial review of the actions of local authorities takes place.

I accept fully that in the setting up of a devolved assembly such as that proposed for Wales and the devolved parliament as is proposed for Scotland it is necessary to have in place judicial procedures to resolve constitutional disputes that arise in relation to the issue of vires. Equally, I believe firmly that it is not in the interests of the success of either the assembly of Wales or the parliament of Scotland to have recourse to the court unless it is strictly necessary, and even then such recourse should be on as limited grounds as possible.

I believe that this is an important issue and I very much look forward to a constructive response from the Minister.

Lord Williams of Mostyn

We are discussing important issues, but in many ways it is a question of déjá vu, although I am not sure what the Welsh equivalent of that phrase is and I cannot draw on the advice of the noble Lord, Lord Elis-Thomas, because he is not in the Chamber at present. However, we discussed these issues at some length on an earlier Committee day. Indeed, the noble Lord, Lord Thomas of Gresford, was good enough to contribute his proposition; namely, that one needs full, fearless and frank debate in the assembly. We dealt with such matters by way of our amendments to Clause 78, which I believe were generally welcomed by Members on all sides of the Committee.

There are a number of propositions here, but I believe that they have been overtaken by our amendments to Clause 78. In any event, I do not think that some of them could properly apply to the Welsh assembly. The amendment starts with the words; For the avoidance of doubt". Whenever I hear those words, I feel a little like Field Marshal Goering and reach for my revolver. There is no doubt here. On any legitimate construction of Article IX of the Bill of Rights, there is no possibility of it applying to the Welsh assembly because it relates to the Parliament at Westminster. There is no doubt about that. The Claim of Right Act 1689—an Act of the former Scottish Parliament—could not, with the utmost ingenuity, even of members of the Wales and Chester circuit, possibly apply to the Welsh assembly.

I take note of the points behind the amendments. I hope that I am not being impolite, but I believe that they were designed for a situation that has been overtaken by events. We amended Clause 78 by drawing on provisions in the Defamation Act 1996. The real protection in respect of free, fearless and frank discussion, to use the noble Lord's phrase, is immunity from actions for defamation. Indeed, as I said, we discussed the matter on an earlier day of the Committee stage. We have already provided for that situation to general agreement from all sides of the Committee.

I should point out to the Committee that Members of Parliament cannot be criminally liable for statements made in proceedings in Parliament. That was considered in the case of Duncan Sandys in 1938. It was generally agreed there that the Member of Parliament in question could not have been convicted of a breach of the Official Secrets Act for information disclosed in the course of proceedings in Parliament. Therefore, there is the effective immunity of a Member of Parliament in Westminster from criminal prosecution, but of course the other place has internal sanctions for breach of its own rules, which can include imprisonment.

As far as concerns the assembly, we provided last week that standing orders made for preserving order in the assembly must include provision for preventing conduct which would constitute a criminal offence. That, of course, would include the power to restrain the making of statements which, if made, would constitute a criminal offence. If those standing orders were ignored and a criminal offence were then committed, we do not see why the offending member should be immune from prosecution. There is no power in the assembly for it to imprison its own member—a power which does obtain in another place.

We are quite certain that the amendments we moved last week will give adequate and full protection to the freedom of speech of assembly members. Therefore, trying to apply Article IX of the Bill of Rights to the proceedings of the assembly is neither required nor appropriate.

I am most grateful to the noble and learned Lord because he dealt with a question which is encompassed in subsection (2)(a) of his amendment. As he explained, that seeks to apply to proceedings of the assembly the rule excluding review by any court of the observance by either House of its internal procedures and practices in the discharge of its business. That is subject to the exemption—namely, the "devolution issue"—which I believe the noble and learned Lord described as the vires question. I entirely agree with him.

The noble and learned Lord's amendment seeks to apply to a body which is not a parliament principles which have been developed in the context of this Parliament. It is well known that no court will entertain a question which impugns the internal workings of another place. However, it will be very odd indeed if, having accepted the amendments which we discussed at some length last week, Members of the Committee were now in effect to provide that non-observance of standing orders—and I stress this point—even those specifically required by the Bill, could never allow a court to hold assembly action invalid. I respectfully suggest that that would be nonsense. The court would be entitled to examine the question of whether standing orders which had been introduced on a mandatory basis in the Bill and which had been breached could in fact result in a finding of invalidity and the granting of a remedy. That is a discretion open to the court.

The final matter which the noble and learned Lord again helpfully outlined relates to Pepper v. Hart. It is well known that in some circumstances the courts can look at the legislative history of a statute when construing its provisions. That was held not to be impeaching or questioning proceedings in Parliament which would have been contrary to the Bill of Rights. The rule in Pepper v. Hart will continue to apply to legislation going through Parliament which confers order-making powers on the assembly. Statements made in the course of those proceedings could be used in the Pepper v. Hart context.

Whether statements made in the assembly in the course of its order-making procedures could be relied upon is a different question. As I said last week, the assembly's powers are to make subordinate legislation only. When your Lordships' House decided Pepper v. Hart it paid regard to its earlier decision in Pickstone v. Freenzans, which concluded that it was permissible to construe subordinate legislation having regard to the legislative history. We believe it would be for the courts to decide whether the same approach could be taken in relation to proceedings in the National Assembly for Wales. The cases are there and the courts can address these issues.

I summarise. Article IX of the Bill of Rights could not properly apply to the assembly. Article XXV of the Claim of Right Act 1689, which is a peculiarly Scottish Act, could not conceivably apply to the assembly. Freedom of speech in debate is already secured by the amendments we discussed and passed last week. I hope that the noble and learned Lord will withdraw his proposed new subsection (2)(a) on the basis of my explanation. As regards his proposed new subsection (2)(b), I hope I have given him the assurances that he sought in the context of Pepper v. Hart.

9.30 p.m.

Lord Hooson

I hope that the noble Lord will deal with the following point. I understood that the noble and learned Lord, Lord Mackay of Drumadoon, also suggested that action could be taken in the courts to seek an injunction to prevent the Welsh assembly from considering certain points. It had not occurred to me that that could be done. I do not think that the noble Lord dealt specifically with that point.

Lord Williams of Mostyn

I can conceive of such circumstances in the vires context. I believe that the noble and learned Lord, Lord Mackay of Drumadoon, dealt specifically with the vires context. If there were a proposal by the Welsh assembly to deal with its devolved powers ultra vires, it seems to me as a matter of principle that any remedy would be capable of being sought by a disaffected party who had sufficient locus. That might well include the remedy of injunction. That is a matter for the courts to develop. However, as a matter of principle, I believe that the noble and learned Lord is right in the vires context.

Lord Prys-Davies

Will my noble friend on the Front Bench deal with an issue which was not raised by the noble and learned Lord, Lord Mackay of Drumadoon? I have followed the proceedings of the joint Parliamentary Privilege Committee which has discussed this question. It has also discussed the question of whether a Member of Parliament should be immune from being subpoenaed to attend and give evidence in criminal or civil proceedings. I fully accept the relevance of Clause 78, as amended, but there is nothing in the Bill that deals with the question of whether a member of the Welsh assembly will be immune from being subpoenaed to give evidence. Therefore I assume that he or she will not be immune from that. I hope that my noble friend can answer that question.

Lord Williams of Mostyn

That is an interesting question. I believe it would depend on the basis of the evidence that was sought to be the subject of the subpoena or the order to produce documents. Certainly if it related to transactions which were non-assembly transactions, the matter would be clear. I wish to consider that question because it divides itself into at least two parts. I think it is better if I write to the noble Lord and place a copy of my reply in the Library.

Lord Mackay of Drumadoon

In responding to the Minister, perhaps I should make it abundantly clear that I was fully aware of the terms of Clause 78 as amended. I was also fully aware of the amendments that were tabled to the standing orders for the reason that, when I went to put down the same amendments to incorporate the Scottish equivalent, I discovered that I had been beaten to the putting-down post, if I may use that term.

I hasten to assure the Minister that the purpose that lay behind this amendment had nothing to do with preventing members being sued for defamation and libel, and nothing to do with the disciplining of people who might or might not misbehave in the assembly, whether they are members of the public or members of the assembly. The purpose was to raise issues which are to some extent focused in subsection (2)(a) and (b) of the amendment. I hoped I had touched on the general issue. If a provision along these lines does not apply to the deliberations of the assembly, I conceive—and I believe I am not alone in this—that it will be possible for people to seek to challenge the decisions of the assembly, whether they are made by the assembly itself or by secretaries to whom decisions are delegated, by relying on what was said in debate and seeking to demonstrate to the court that the whole proceedings were based on a misunderstanding as to what the current law is, or that they proceeded on a failure to take into account the relevant considerations. In other words, we should be able to use speeches made in the assembly in a way that it is inappropriate to use speeches made in this Parliament by government Ministers or any other Member of this House or another place.

Therefore, I have to say frankly to the Minister that, while I fully accept that it has nothing to do with defamation of character or the issue of misbehaving, I find his answer not a complete answer to the questions I raised, which I consider to be of relevance to this assembly and also in relation to the Scotland Bill.

I am interested to have the Minister's acknowledgement that in certain circumstances injunction proceedings would be competent against the proceedings of the assembly. I intend to think very carefully about what he has said. I hope that he and his colleagues will reflect as to whether it is desirable if the courts on the one hand and the assembly on the other are to respect the constitutional position of each one who wishes to admit any responsibility at all of proceedings being taken to seek to interrupt the deliberations of the assembly, either because certain standing orders have not been complied with or there is an allegation that erroneous information is before the assembly as it moves to take an important decision in the exercise of its executive function.

This was clearly a probing amendment. On that basis, I seek leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 108 [Observing Community law and human rights]:

Lord Falconer of Thoroton moved Amendment No. 213B:

Page 55, line 30, leave out ("Community law or").

The noble and learned Lord said: Perhaps I may also speak to Amendments Nos. 213B, 213D, 213G and 213K. Amendment No. 213C is also in the group, but I shall respond to any noble Lord who speaks to it after I have spoken to my amendments.

My noble friend Lord Williams of Mostyn indicated at Second Reading that it would be necessary to bring forward amendments to bring this Bill into line with the Human Rights Bill, which is now being considered in another place. That is the purpose of the amendments to which I speak.

As the Government of Wales Bill presently stands, the assembly is forbidden by a provision in a single clause, Clause 108, to act incompatibly with Community law or with the convention rights. Government Amendments Nos. 213B and 213E unpack that clause, so that separate provision is made for Community law and separate provision for the convention rights.

The important changes in respect of convention rights are made by Amendment No. 213D, which has several elements. First, as drafted, Clause 108 does not specify who could challenge the assembly for a breach of its human rights obligations under that clause. The answer provided by the proposed new subsections (2) and (3) is that a person will be able to bring proceedings under Clause 108 only if that person is or would be a "victim" under Clause 7 of the Human Rights Bill or is a law officer of the United Kingdom Government or is the assembly itself. In determining such proceedings, a court's powers to award damages would be limited in the same way as under Clause 8 of the Human Rights Bill.

Amendment No. 213G makes clear that, for the purposes of Clause 108, "action" by the assembly includes a failure to act. This brings Clause 108 into line with the Human Rights Bill, Clause 6(8) of which specifically includes failures to act save in certain limited circumstances. Amendment No. 213K makes a consequential amendment to the definition of devolution issues in paragraph 1 of Schedule 7 to ensure that a failure to act which is incompatible with the convention rights is a devolution issue for the purposes of the special judicial procedure involving the judicial committee of the Privy Council.

Finally, as a consequence of the unpacking of Clause 108 to which I previously referred, Amendment No. 213F makes a consequential amendment to Clause 109 so as to include in a single clause the existing provision as to Community obligations of the assembly and the provision, previously in Clause 108, for the assembly not to act in a way that is incompatible with Community law.

These are detailed amendments, but I hope that they will not prove controversial. I believe that they do not raise any new points of principle. I beg to move.

Lord Mackay of Drumadoon

I am grateful to the Solicitor-General for explaining these amendments, which seek to address an issue which I raised during the Human Rights Bill relating to the compatibility of the provisions of that Bill with the provisions of the Scotland Bill and the Government of Wales Bill, which became available during the passage of the Human Rights Bill through your Lordships' House. I regret that, because I was not present in your Lordships' House yesterday, I saw these amendments for the first time today. The amendments sent to me on Friday did not include these amendments and I have therefore not had as much time to look at them and consider their implications as I would have wished. I accept that they seek to address the concern I raised during the Human Rights Bill that there was possibly some incompatibility between the provisions of the two Bills which might be undesirable.

I have a number of questions to pose, in particular in relation to Amendment No. 213D. First, why is it proposed that proceedings in relation to any acts under the Government of Wales Bill which breach convention rights should be limited to those proceedings which can be raised under the Human Rights Bill? I understand that to be the purpose of the new subsection (2).

As the noble and learned Lord will be aware, the Government have not yet indicated which courts and tribunals will be designated as the appropriate courts and tribunals for the purposes of proceedings under Clause 7 of the Human Rights Bill. For that reason, it is at the present time impossible to identify what role the lower civil courts and certain tribunals may have in this area. Unlike the case of the transfer of functions, where draft orders are available, no draft orders are available in relation to the designation of the appropriate courts under Clause 7.

In that state of uncertainty, why should we limit the proceedings in the way that subsection (2) does? If either the Secretary of State for Scotland or the Lord Chancellor of England was to exercise the rule-making power under the Human Rights Bill and to provide that actions could only be raised in the superior courts—the High Courts of England and Wales or the Court of Session in Scotland—it might lead to additional complexity of litigation and inevitably additional expense.

Secondly, I raise a question in relation to Amendment No. 213D and the new subsection (3). Why should Law Officers be treated differently from any other party to the litigation? I merely pose the question. I have not had time to research it, but differentiating between the rights of one litigant—namely, the Law Officer—and the other litigants may raise an issue of Convention rights. One seems to be able to advance an argument which another party in the same litigation seeking to achieve the same result cannot. On a first reading that strikes me as an odd provision and I should welcome hearing further from the noble and learned Lord the Solicitor-General on that matter.

The amendments meet concerns that I felt and I welcome them. However, until I receive answers to those and other questions that may arise, I am unable to give the Minister an assurance that I consider these amendments to be as non-controversial as he. In view of the fact that they come forward at this stage, I do not intend to press Amendment No. 213C, though it may be necessary to return with that or a similar amendment at Report stage.

9.45 p.m.

Lord Falconer of Thoroton

The noble and learned Lord, Lord Mackay of Drumadoon, poses two questions in his intervention. First, he asked why we limit the rights to those set out in the proposed subsection (2). The answer is that Clause 7(1) of the Human Rights Bill—the subdivision of the Law Officers—permits only victims to bring proceedings under that Bill. It would be anomalous and wrong for the Government to allow people who were not victims to challenge the assembly for contravention of human rights. In effect, we would be giving a greater locus to people in respect of the activities of the assembly than in relation to any other public authority in the country. That seemed to be wrong. At Second Reading therefore we said that we would introduce measures to make the two consistent, which is the purpose of subsection (2).

I hope that that answers the noble and learned Lord's first question. He asked also why Law Officers are treated differently. The reason is that a Law Officer is not a victim for the purposes of the Human Rights Bill. The Law Officers represent the public interest and, without the provision that we included in subsection (3), there would be doubt that the Attorney-General or the other Law Officers could bring proceedings against the assembly for breaches of convention rights when it would be appropriate that they did so to clarify a situation. I hope that that answers the noble and learned Lord's second question.

On Question, amendment agreed to.

[Amendment No. 213C not moved.]

Lord Falconer of Thoroton moved Amendment No. 213D:

Page 55, line 31, at end insert

("(2) Subsection (1) does not enable a person—

  1. (a) to bring any proceedings in a court or tribunal if he could not do so under the Human Rights Act 1998, or
  2. (b) to rely on any of the Convention rights in any proceedings in a court or tribunal if he could not do so by virtue of that Act.

(3) Subsection (2) does not apply to the Attorney General, the Assembly, the Advocate General for Scotland or the Attorney General for Northern Ireland.

(4) Subsection (1)—

  1. (a) does not apply to an act which, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section, and
  2. (b) does not enable a court or tribunal to award any damages which it could not award by virtue of that Act.").

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 213E:

Transpose Clause 108 to after Clause 109.

On Question, amendment agreed to.

Clause 108, as amended, agreed to.

Clause 109 [Community obligations of Assembly]:

Lord Thoroton of Falconer moved Amendment No. 213F:

Page 55, line 35, at end insert—

("( ) The Assembly has no power—

  1. (a) to make, confirm or approve any subordinate legislation, or
  2. (b) to do any other act,
so far as the subordinate legislation or act is incompatible with Community law.").

On Question, amendment agreed to.

Clause 109, as amended, agreed to.

Clause 110 [Power to prevent incompatible action etc.]:

Lord Falconer of Thoroton moved Amendment No. 213G:

Page 56, line 18, leave out ("do acts") and insert ("act (or fail to act) in a way which is").

On Question, amendment agreed to.

Clause 110, as amended, agreed to.

Clause 111 agreed to.

Schedule 7 [Devolution issues]:

Lord Falconer of Thoroton moved Amendment No. 213H:

Page 90, line 33, at end insert— ("( ) a question whether a function is exercisable by the Assembly,").

The noble and learned Lord said: In moving this amendment I shall speak also to Amendment No. 213J. These two amendments are designed to elucidate the full meaning of "devolution issue" in Schedule 7. Amendment No. 213H simply proposes that a narrow question of vires—is the assembly to take any action in this matter at all?—can be a devolution issue; although I freely admit that this question ought to be answerable by reference to the Transfer of Functions orders and future legislative grants of power, rather than requiring reference to a court. No doubt there will be issues about it from time to time.

Amendment No. 213J amounts to a tacit acceptance that the assembly may have duties imposed on it other than by Community law and, to the extent that these require judicial consideration, the procedure established by Schedule 7 would operate. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 213J:

Page 90, line 39, at beginning insert ("a question whether the Assembly has failed to comply with a duty imposed on it (including").

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 213K:

Page 90, line 40, at end insert (", or ( ) a question whether a failure to act by the Assembly is incompatible with any of the Convention rights.").

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 213L:

Page 90, line 40, at end insert— ("( ) a question whether a failure to act by the Assembly is incompatible with any of the Convention rights or with Community law, or ( ) a question whether a failure to act by the Assembly First Secretary or one of the Assembly secretaries is incompatible with any of the Convention rights or with Community law:).

The noble and learned Lord said: The first part of this amendment has clearly been overtaken by events, through Amendments Nos. 213H to 213K. I fully accept that, in the light of these amendments, which were tabled, as I understand it, subsequent to my amendment, the first part is inappropriate.

The second part of the amendment raises a distinct issue on which I should welcome a response from the noble and learned Lord the Solicitor-General. It arises in this way. If the assembly has failed to act in a manner which gives rise to an issue of vires based on an incompatibility with the convention rights of Community law, the fault may lie not with the assembly itself, but with the first secretary or one of the assembly secretaries who is responsible for presenting, for example, secondary legislation or proposals for action to it.

Therefore, I pose the question whether in those circumstances it may be appropriate to have as an additional devolution issue the matter which appears in the second part of the amendment. I readily accept that on one view it is an issue of construction as regards the constitutional position of the assembly that the first secretary and any of the assembly secretaries, will act in accordance with powers delegated to them by the assembly. Nevertheless, particularly if we have the curious situation that we discussed earlier of the Secretary of State for Wales occupying the position of first secretary of the assembly, it might be appropriate for the avoidance of any doubt to have this identified as a separate devolution issue. I beg to move.

Lord Falconer of Thoroton

The noble and learned Lord answers his own question. We take the view that the second subsection, relating to assembly secretaries, would be otiose since the assembly secretaries would be acting for the assembly rather than in their own right. Their failures to act would be failures of the assembly to act. Even if the amendment had been necessary, that point would have been covered by the first proposed subsection. In the light of that assurance, I invite the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon

I am happy to accept that assurance which will be available if the issue should ever arise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 214:

Page 90, leave out lines 41 and 42.

The noble and learned Lord said: This is the first of a number of amendments raising the same issue; namely, whether in Schedule 7 references to the Judicial Committee of the Privy Council should be replaced by the insertion of the words "House of Lords". Accordingly, in moving Amendment No. 214, with the leave of the Committee, I should like to speak also to all the other amendments grouped with it.

The purpose of this series of amendments is to probe and, I hope, to have answered questions about the Government's thinking on the issue of whether it should be the Judicial Committee of the Privy Council, as the Bill proposes, restricted to those members who qualify under paragraph 33 of Schedule 7, or the House of Lords where, in accordance with the convention by which judicial business is handled in your Lordships' House, it would be determined by the Appellate Committee before reporting the matter to the House.

Clearly, this is also of relevance to the Scotland Bill, where the devolution issues that will arise for determination by the courts may be more extensive than those arising under this Bill, including, as they will, the vires of primary legislation which it will be competent for the Scottish parliament to enact. I understand that a number of noble Lords are concerned about this issue and that they intend to raise it during the passage of the Scotland Bill.

A number of considerations arise. First, the Appellate Committee of your Lordships' House already serves as the supreme court in the United Kingdom for all proceedings with one major exception; namely, that of criminal appeals from the High Court of Justiciary in Scotland. The question that therefore arises is: why, if that is the case, is it appropriate to substitute a new supreme court for this tranche of judicial business even if as a matter of fact, if I might use these terms, the judicial cast in both bodies would have a certain similarity?

Secondly, I refer to the Human Rights Bill and to the judicial proceedings that will be competent under that legislation. As was mentioned earlier, Clause 7 of that Bill is relevant here. The ultimate court of appeal in civil proceedings will be the Appellate Committee of your Lordships' House. In many instances, the issues raised will be similar. Indeed, Amendment No. 213D, to which the Committee has recently given approval, may mean—indeed, it probably will mean—that the issues raised are virtually identical. Therefore, it is possible to imagine a situation where the same act, or failure to act, could be challenged by different types of proceedings. In one type of proceeding, it would be competent for the ultimate court of appeal to be the Judicial Committee of the Privy Council, while in another type of proceeding it would be the Judicial Committee of your Lordships' House. The question arises whether that is entirely sensible.

The third consideration is that if the ultimate court of appeal is the Appellate Committee, it may serve to reinforce the supremacy of this Parliament in a way that would be welcomed by those of us who are committed to devolution and who are determined that the devolved assemblies in Wales and Scotland will work but equally that those bodies operate as integral parts of a thriving United Kingdom. I am aware that that view is shared by a number of Members of your Lordships' House.

At this time of night I merely raise this as a probing amendment to seek guidance as to why the Government have selected this particular route. I hope that that will be explained to the Committee and that the issues that I have raised in this probing amendment will receive a response.

10 p.m.

Lord Thomas of Gresford

The noble and learned Lord, Lord Mackay of Drumadoon, has not put forward any particular case as to why the House of Lords should be the ultimate court of appeal. The Judicial Committee of the Privy Council has both domestic and overseas jurisdiction. Customarily, it has dealt with constitutional issues arising out of written constitutions in the Commonwealth and overseas territories. Its present jurisdiction is reduced because all of the Hong Kong area and many of the overseas territories that customarily were dealt with by the Privy Council have gone. Procedurally, it is easier to deal with than the House of Lords and is more flexible.

I do not understand the argument that the House of Lords in its judicial capacity should be the ultimate appellate court because of the supremacy of this Parliament. I understood that its supremacy was the Queen in Parliament. The Privy Council reports to Her Majesty who makes decisions on the advice of the Judicial Committee of the Privy Council. I do not believe that it can be much more "supreme" than that. I do not believe that that provides any particular reason why the matter should not remain with the Judicial Committee of the Privy Council; that would appear to be a practical and appropriate body to be the ultimate appeal court on constitutional issues.

I turn to Amendment No. 215 in my name and that of my noble friends Lord Hooson and Lord Geraint. At Second Reading I suggested that it would be far simpler, easier, quicker and less costly if constitutional issues arising out of the Welsh assembly were brought before a court in Cardiff as opposed to having to come to London. This amendment seeks to make what I believe to be the highly practical suggestion that the High Court. sitting in its capacity as a divisional court, and the Court of Appeal may sit in Wales. That power may already exist. If I hear that from the Benches opposite I shall be satisfied. However, I have no personal knowledge of any case where the court has sat as a divisional court in Wales. Certainly, the Court of Appeal does not do so.

I was criticised on the basis that I sought to up the ante and make a greater constitutional innovation in Wales and give it greater power, by giving to Wales its own Lord Chief Justice. I do not believe that that was the burden of my remarks. However, even if that were the case, Northern Ireland with a population of 1 million has a Lord Chief Justice and Scotland has all kinds of judges. The noble and learned Lord, Lord Mackay of Drumadoon, will be able to enumerate them. They are not very well known to us. I refer to the Lord Justice Clerk and so on. Scotland has a whole raft of judges who sit in Edinburgh and who no doubt will continue to do so. Why, therefore, should we not have in Wales a High Court judge who sits in the Divisional Court who customarily deals with constitutional issues and knows the whole set-up, has regular people in front of him who are accustomed to argue the constitutional issues, and from him to the Court of Appeal?

In Wales we are fortunate to have some eminent Lord Justices of Appeal, any one of whom, I am sure, would fulfil that function and give that expertise which the people of Wales will require on issues of that sort. If the present system is used, every time a constitutional issue arises in the Divisional Court or the Court of Appeal is approached in London. the whole background to the Government of Wales Bill will have to be gone into. The powers of secondary legislation and its division from primary legislation will have to be investigated as from the beginning with each new tribunal before which those issues are raised. That would seem in the end to be a highly expensive and inappropriate procedure.

If, as I see from some nods from the Bench opposite, the power exists for the High Court and the Court of Appeal to sit in Wales, I would welcome an indication that that will be permissible.

Lord Prys-Davies

In response to the speech of the noble and learned Lord, Lord Mackay of Drumadoon, I would mention that there is, of course, another view. There is a perception among members of the public that the Appellate Committee of this House is a part of Parliament's own processes and it would therefore be a judge in its own cause. It might not be seen as reaching an impartial judgment.

There is one question I should like to ask my noble and learned friend on the Front Bench. I note from paragraph 33 of the schedule that no member of the judicial committee shall sit and act as a member unless he holds certain offices. Going back to the question of public perception, if there are no Welsh judges on the Privy Council, can the Privy Council sit with lay assessors such as a Welsh academic with expertise in constitutional law?

If there is a constitutional issue, it is important that the public have confidence in the tribunal and its membership.

Lord Mackay of Drumadoon

I wonder whether, with permission, I might make one comment which I meant to make earlier about the amendment tabled by the noble Lord, Lord Thomas. I fully support that amendment and see absolutely no reason why that should not be the practice.

Perhaps I may raise as a related issue the question of where the court might sit? Whether it be the Appellate Committee of your Lordships' House or the Judicial Committee of the Privy Council, what is the Government's position on whether it would be competent for either of those bodies to sit, whether in Cardiff on the one hand or in Edinburgh on the other hand, when dealing with devolution issues?

As I think is well known, the Privy Council is occasionally convened in Scotland at a certain time of the year if any emergency business requires to be transacted. Therefore, as far as I am aware, there is no constitutional objection to the judicial committee taking up its judicial bed and walking. I have to say that whether it is to overcome the concern expressed by the noble Lord, Lord Prys-Davies, or for any other reason, if the ultimate Court of Appeal is able to sit in public, whether in Wales or in Scotland, and people who are interested are able to observe what is going on, that may well make the important role which judges have to play in the working out of devolution more readily understood. If they have to take controversial decisions, as I apprehend they may, they may make those decisions more acceptable.

The Earl of Balfour

Some of my amendments relate to Schedule 7. I shall start with page 91 and paragraph 7(2) which provides: Sub-paragraph (1) does not apply

  1. (a) to a magistrates' court, the Court of Appeal or the House of Lords, or
  2. (b) to the High Court if the devolution issue arises in proceedings on a reference under paragraph 6".
I am no expert on the law, but that appears to leave only the county court. I am intrigued by that.

I turn now to page 92 and my Amendment No. 220 and page 94 and my Amendment No. 235. There is almost the same schedule in the Scotland Bill. I have equally no doubt that there will be a similar schedule within the Northern Ireland assembly Bill when it arrives.

The Lord Advocate is an office that goes back many centuries. It is in the Scotland Bill. The Lord Advocate has not been included in almost the identical procedures within this Bill. That made me wonder. We have the advocate general, and that is fair enough. He is a new person. Those are the fundamental questions that I am raising on Schedule 7.

Lord Falconer of Thoroton.

I shall deal first with the amendments referred to by the noble and learned Lord, Lord Mackay of Drumadoon, which would substitute this place for the Judicial Committee of the Privy Council as the judicial mechanism for resolving disputes about the assembly's use of its powers. The Government have made it clear in relation to this Bill and the Scotland Bill that the Judicial Committee of the Privy Council will be the most appropriate body to act as the final arbiter over constitutional matters relating to the exercise of its functions by the assembly or the Scottish parliament.

There are a number of reasons for that. First, the Judicial Committee acts already as the final constitutional court of appeal for the colonies and various parts of the Commonwealth. It therefore has experience of handling cases raising constitutional issues.

Secondly, it is important that there should be a flexible mechanism in place for disputes about the assembly's powers to be resolved promptly. The amendments, which seek to replace the Judicial Committee of the Privy Council with references to this place, would add to the judicial workload of this place. I am not sure that that would lead to prompt decisions on cases, bearing in mind the various provisions in Schedule 7 for cases to be referred on appeal.

Next, I draw attention to paragraph 33 of Schedule 7, which gives greater flexibility about the membership of the Judicial Committee of the Privy Council than exists for the judicial membership of this place. The Judicial Committee can draw its members from anyone who is, or has held the office of, a Lord of Appeal in Ordinary or certain high judicial offices. The latter includes Lord Chancellors and judges of the High Court or Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland but excludes senior judges from the colonies or the Commonwealth. I am afraid that it would also exclude the sorts of persons that my noble friend Lord Prys-Davies had in mind. It is a much larger pool than the pool for the Judicial Committee of the House of Lords.

For the reasons given, it is not possible for the Government to accept the amendments which seek to substitute this House for the Judicial Committee of the Privy Council, nor to remove references to it. I respectfully say that I think the right conclusion has been reached in relation to which is the more appropriate body. I know of no reason why the Judicial Committee of the Privy Council cannot sit anywhere in the British Isles that it chooses. Those in the box equally know of no reason why it cannot sit anywhere in the British Isles. If anyone can think of a reason, will he write and let noble Lords know? One should proceed on the basis that it can. When it deals with judicial matters at present, it sits in public. It is obviously critical whether it continues to do so in relation to such issues. I imagine that it is a matter constitutionally for it to decide whether it wishes to go on circuit, as it were, and sit elsewhere. One can see considerable merit in the points made by the noble and learned Lord, Lord Mackay of Drumadoon, in that respect.

10.15 p.m.

Lord Thomas of Gresford

The noble and learned Lord may recall that the Judicial Committee of the Privy Council frequently sat in India when India was in the jurisdiction of the Empire.

Lord Falconer of Thoroton

I do not recall it personally, but I accept that it occurred. On that note, I turn to the amendment of the noble Lord, Lord Thomas of Gresford, relating to the High Court and the Court of Appeal sitting in Wales, on which he spoke with some passion during Second Reading of the Bill. I am happy to tell him that the amendment is unnecessary. Under the provisions of the Supreme Court Act 1981, the High Court and the Court of Appeal can sit at any place in England or Wales provided they do so in accordance with the rules of court and directions of the Lord Chancellor. The power is there already. Whether they wish to do so is a matter for them rather than this House.

The noble Earl, Lord Balfour, referred to paragraph 7 of the schedule, asking in effect whether only the county court can refer matters to the Court of Appeal. The provisions in paragraphs 6 and 7 of the schedule are designed to have the following effect. Paragraph 6 provides that the magistrates' court cannot refer direct to the Court of Appeal. It can only refer to the High Court. Paragraph 7 is designed to ensure that the High Court or the county court can refer direct to the Court of Appeal a devolution issue, but the paragraphs exclude the Court of Appeal referring the matter to itself or the House of Lords referring a matter down to the Court of Appeal. I hope that that explains the provisions.

Amendments Nos. 220 and 235 moved by the noble Earl, Lord Balfour, are inappropriate because the purpose of paragraphs 13 and 30 in Schedule 7 is to give power to institute proceedings to a Law Officer of the UK Government, not a Scottish parliament. Under the Scotland Bill, the Lord Advocate will become a Law Officer of the Scottish Executive and the post of Advocate General for Scotland is being created so that the UK Government continue to have a Law Officer dealing with Scottish affairs. I would not envisage that someone exclusively a member of the Scottish Executive should have the right to which the noble Earl refers.

In the light of those explanations, I invite the noble and learned Lord, Lord Mackay of Drumadoon, the noble Earl, Lord Balfour, and the noble Lord, Lord Thomas of Gresford, to withdraw the amendment.

The Earl of Balfour

I am most grateful for that reply. I am beginning to understand matters a little better in that respect. I was intrigued to find subtle differences in the schedules dealing with all four countries of the United Kingdom. I am much obliged and thank the Committee and the Solicitor-General for his helpful answer.

Lord Mackay of Drumadoon

I too am grateful to the Solicitor-General for clearly explaining government thinking. As to public perception, I am not entirely convinced by the argument that the Judicial Committee's experience of dealing with the colonies cuts much ice with those people who favour devolution or, to take it one stage further, independence. The Scottish National Party in another place was most vexed at the thought that any body, such as a Judicial Committee, that might be tainted with colonial experience should have a role to play in devolution. The issue interests many noble Lords, and I am sure that the Solicitor-General's remarks will be taken into account when they raise the matter during the passage of the Scotland Bill. I welcome also the Solicitor-General's comments on where the Judicial Committee can sit. I thought that the noble and learned Lord, Lord Thomas of Gresford, was going to tell the Committee that he had appeared before the Judicial Committee. Perhaps I am getting him mixed up with another learned Peer who frequents the Liberal Democrat Benches. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 214A:

Page 90, line 42, at end insert— ("( ) In this Schedule "civil proceedings" means any proceedings other than criminal proceedings.").

The noble and learned Lord said: With this, I should like to speak to Amendments Nos. 217A and 241A, which are also drafting amendments. Amendment No. 214A provides a definition for the purposes of Schedule 7. Amendment No. 217A is a drafting simplification, and Amendment No. 241A brings the Welsh Bill into line with the Scottish Bill in providing—as is generally the case—that no parliamentary procedure is to apply with respect to rules to regulate proceedings before the Judicial Committee.

On Question, amendment agreed to.

[Amendments Nos. 215 to 217 not moved.]

Lord Falconer of Thoroton moved Amendment No. 217A:

Page 91, line 41, leave out ("High Court, or of the Court of Appeal") and insert ("court concerned").

The noble and learned Lord said: I have spoken to this amendment.

On Question, amendment agreed to.

[Amendments Nos. 218 to 235 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 236:

Page 94, line 10, at end insert— ("( ) Where a court or tribunal refers a devolution issue for determination under sub-paragraph (1) above, the relevant law officer making the request for such a reference shall pay all the costs or expenses of any parties that subsequently take part in any proceedings in the House of Lords for the determination of the devolution issue involved.").

The noble and learned Lord said: This amendment and Amendment No. 238 raise the question of the additional expense that may occur when the relevant Law Officer intervenes in proceedings before a court or tribunal and requests that the court or tribunal makes a reference. As my amendment has it, that reference would relate to the House of Lords, but I accept that reference should be to the Judicial Committee, for the determination of a devolution issue. In a similar vein, Amendment No. 238 deals with the situation where the Attorney-General or the assembly itself may be involved.

There is a concern that parties who are caught up in cases involving devolution issues, whether they are raised by the parties bringing the civil proceedings or whether they are pled as a form of defence by the defendant or defender to such proceedings, may end up having to pay a great deal more by way of legal costs and expenses than might be the case if the Law Officers did not intervene.

Any litigant who raises proceedings runs the risk of bearing some expense. However, in the early stages of devolution when certain issues fall to be resolved the proceedings are more complicated than otherwise might be the case and that motivates Law Officers to intervene. There is then an argument that as the issue will be resolved for all the citizens, whether of Wales, as in this Bill, or of Scotland, as under the Scotland Bill, the costs should be borne not by the parties originally involved in the case. That is why I tabled Amendments Nos. 236 and 238. I shall be interested to hear the Government's thinking on this important practical issue. I beg to move.

Lord Falconer of Thoroton

Amendments Nos. 236 and 238 relate to the question of costs. The Government's attitude is that the amendments are inappropriate since the principle they are seeking to achieve is contrary to the usual principle on which costs in court proceedings are determined; that is, it is in the discretion of the court. Section 15 of the Judicial Committee Act 1833 makes provision for the costs to be in the discretion of the Judicial Committee. The Law Officer can refer the matter to the Judicial Committee in one of two circumstances; either where there are already proceedings in existence, which is paragraph 30, or where there are not, which is paragraph 31. Where a devolution issue is referred to the Judicial Committee under paragraph 31, it is difficult to envisage how any party, other than the assembly or the UK Government in the guise of the Attorney-General, would be involved. I recognise that it might be possible and that other people might want to be joined.

As regards matters referred to the Judicial Committee from another court under paragraph 30, it would be for the Judicial Committee to decide how the costs of all participants should be dealt with. I can envisage the kind of points which the noble and learned Lord made about people getting caught up in complex litigation where the purpose was to resolve the point for others rather than for themselves. Such points might carry some weight in a costs issue in front of the Judicial Committee of the Privy Council. But, equally, there are circumstances in which the conduct of the party makes it appropriate for the Judicial Committee of the Privy Council to make awards of costs against them.

Surely, the right course in relation to all these matters is to leave it to the Judicial Committee to determine where the justice of the case lies in relation to the costs issue. That is what underlies the Government's thinking. It is the normal approach taken in relation to costs. That is why it is as it is. I hope that that explanation assists the noble and learned Lord and that he will withdraw his amendment.

Lord Mackay of Drumadoon

It certainly assists in understanding the Government's position. The problem is that normal litigation does not allow a Law Officer to intervene and, with the approval of the court, to take the case out of the lower court and march it off to the Judicial Committee.

Furthermore, I find the reasoning slightly difficult to reconcile with Amendment No. 214C, to which the Committee will turn shortly. It appears to give the court, the tribunal, somewhat of a steer to depart from the normal practice where an order under Clause 112 falls to be made. However, the purpose of the amendment was to ascertain the Government's thinking on the matter. That I have received and I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 237 to 241 not moved.]

10.30 p.m.

Lord Falconer of Thoroton moved Amendment No. 241A:

Page 94, line 48, leave out ("under this paragraph") and insert ("which makes provision falling within sub-paragraph (1)(a) or (b)").

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 112 [Power to vary retrospective decisions]:

Lord Mackay of Drumadoon moved Amendment No. 241B:

Page 56, line 28, leave out subsection (2) and insert— ("( ) In criminal proceedings, the court shall take account of and act upon any decision made under subsection (1), whether by the court itself or by a superior court, in the conduct of the criminal proceedings in which the decision has been made. ( ) In civil proceedings, the court or tribunal may, if it considers that it is in the public interest to do so, suspend the effect of the decision for such fixed period, not exceeding six months, and on such conditions, as to allow the Assembly to make any further provision of subordinate legislation as it deems appropriate.").

The noble and learned Lord said: This amendment seeks to explore, with reference to the provisions of Clause 112, what will happen in practical terms when proceedings are raised, whether they be criminal or civil proceedings, and the court or tribunal reaches a view that the assembly did not have the power to make a provision of subordinate legislation which figures in the case before the court or tribunal.

As the clause stands, it would authorise the court or tribunal, having reached the view that the provision of subordinate legislation is outwith the competence of the assembly, to make an order. The court would have a discretion to do so. In the first place, that order could remove a limit on any retrospective effect of the decision it had reached as to vires or, alternatively, suspend the effect of that decision for any period and on any conditions to allow the defect in the provision of subordinate legislation to be corrected by the assembly. As we were discussing earlier, the defect in the subordinate legislation could relate, for example, to a failure to follow mandatory standing orders.

The clause directs the court or tribunal that: In determining whether to make an order under this section, the court or tribunal shall (among other things) have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected by the decision", that is, the decision it had previously reached. Subsection (4) allows the Attorney-General to intervene in such proceedings if he considers it in the public interest to do so. Of course, the very nature of the devolution settlement is, as Schedule 7 makes clear, that such an issue could arise not only in courts or tribunals in England and Wales but also those in Northern Ireland or in Scotland. Therefore, in passing, one must draw attention to the fact that that would give the Attorney-General the right to intervene in proceedings in Scotland and in Northern Ireland.

I should like to look briefly at the two types of proceedings; first, criminal proceedings. If the criminal court reaches a view that a provision of subordinate legislation is ultra vires, it seems to me that that may arise in one of two contexts. One is where there is some incompetency in subordinate legislation which is involved in the criminal charge that the defendant or accused faces. Another situation might be in relation to the admissibility of some evidence on which the prosecutor sought to rely in seeking to establish guilt.

As a very recent case decided by the Appellate Committee of your Lordships' House decided—the case of Boddington v. British Transport Police—such a public law offence requires to be or can be raised as a preliminary issue, whether before the trial itself commences or possibly, if it related to the admissibility of evidence, during the conduct of the trial itself.

I have some difficulty in understanding how, in any circumstances, a criminal court could pronounce an order removing or limiting the effect of a decision it had reached; that whether the subordinate legislation underpinned the charge or related to admissibility of evidence, it would be proper to remove or limit any retrospective effect of that decision. Perhaps more important, I have some difficulty in understanding how it would be proper to suspend the proceedings for any period and on any condition to allow the defect to be corrected. I would welcome guidance from the noble and learned Lord the Solicitor-General as to how the Government envisage such a provision ever being appropriate in criminal proceedings.

I turn now to the question of civil proceedings. What guides my thinking on the matter is the desire to limit, as far as possible, the role of the courts after the devolution Bills—for example, the Government of Wales Bill—come into force. I have a concern, which I believe will be shared by others; namely, that if the court is given this discretionary power of whether to remove or limit any retrospective effect of the decision, or, alternatively, whether to suspend the effect of the decision for a period of time, that may serve to draw the courts into political controversy from which they would do well to steer clear.

The issue which remained unresolved by the Boddington case also lies behind my concern; namely, what will be the effect in civil proceedings of a court reaching the view that a particular piece of subordinate legislation was ultra vires? Should it proceed on the basis that it ought to be treated as having been null and void from the day that it was enacted and as having no legal consequences at all, or should it subscribe to another view? The speeches in the Boddington case made it clear that that is an issue which, in so far as it currently arises, remains to be resolved. I suggest that setting devolution on the road—whether in Wales or Scotland—with that issue remaining unresolved, at least as far as concerns vires issues under these two Bills, would be transferring to the courts an issue upon which the Government ought to form a view and which they ought to bring before both this Committee and this Chamber for approval. Therefore, for those reasons, and without seeking to elaborate in any detail on the fundamental legal issue which lies behind my concern as to what may happen in civil proceedings, I beg to move.

Lord Falconer of Thoroton

As the noble and learned Lord said, Clause 112 provides for the power of a court or tribunal to vary the retrospective effect of its decision that subordinate legislation made by the assembly was ultra vires.

Subsection (2) of the clause empowers the court or tribunal to remove or limit any retrospective effect of such a decision or to suspend it. We believe that that is a sensible, important and practical power to give to the court. It gives the court or the tribunal a discretion as to varying the retrospective effect of its decision. We believe that the courts can exercise that discretion with responsibility.

The effect of the noble and learned Lord's amendments would be to limit the effect of the discretion that we give to the court. Both in relation to criminal and civil cases, the noble and learned Lord referred to the underlying uncertainty as a matter of law as to what the effect would be of a piece of subordinate legislation being declared invalid. I believe that the noble and learned Lord is correct to say that the law is in a state of uncertainty. The Boddington case was not required to resolve that dispute. There are cases in the Court of Appeal in England that identify the differing views in relation to what the law is, in particular as to whether or not such pieces of subordinate legislation, ultimately declared invalid, have any effect in relation to people who may have relied upon them or conducted their affairs on the basis of them, perhaps for many years.

I do not think it is right or necessary for the Government to seek to come to some unrealistic resolution of what is an unresolved point in the law. Rather it must be much more sensible for the Government to seek with clarity to give the courts powers to deal with the often unfair effects of a late and perhaps surprising declaration of the invalidity of certain provisions. With the greatest of respect to the noble and learned Lord, Lord Mackay of Drumadoon, surely the uncertainty of the law provides the appropriate justification for Clause 112. The courts know precisely what powers they have by looking at Clause 112(2). They do not have to resolve the Boddington issue, if I may call it that. They can simply approach the issue on the basis of where the justice of the case lies, not only in relation to the people before the court but also having regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected by the decision to strike down particular regulations.

I think the Government have made a sensible choice here. We have provided clarity about the powers of the court and we have given the court power to do justice where there are problems about the effect of subordinate legislation. It seems to us to be a realistic and sensible approach and it is hard to criticise it. I hope that the noble and learned Lord will withdraw the amendment.

Lord Mackay of Drumadoon

I am grateful for the frank manner in which the Solicitor-General described the uncertainty in the law. However, he has not addressed the issue I raised about criminal proceedings as to whether, notwithstanding the uncertainty of the law, it is appropriate to give any criminal court powers of the nature set out in Clause 112(2)(a) and (b). This is an important issue—

Lord Falconer of Thoroton

I apologise for interrupting the noble and learned Lord. I did not address that issue and he is right to draw my attention to it. One can quite see that in relation to an individual criminal case it might be extremely unusual for the courts to declare that certain legislation has never been passed and then not strike it down in respect of the case before it. However, we must remember that other criminal cases will have gone before which are not before the court at that stage. One can envisage circumstances in which the court may say the measure in question does not apply to a particular defendant but it would be wrong to unscramble a whole series of cases that have been conducted in previous years. I am not saying that will apply in every case, but the court may reach that decision considering all the people who may have relied on the provision over the years.

Lord Mackay of Drumadoon

I am grateful for that further explanation, although I remain seriously concerned about the issue. I intend to return to this matter later and I hope that when I do so the Benches of this Chamber may be populated by others with a similar interest in the important legal issues that lie behind Clause 112. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees

I must point out to the Committee that if Amendment No. 241C is agreed to, I cannot call Amendment No. 241D.

Lord Falconer of Thoroton moved Amendment No. 241C:

Page 56, line 36, leave out subsection (4) and insert—

("(4) Where a court or tribunal is considering whether to make an order under this section, it shall order notice (or intimation) of that fact to be given to the Attorney General and the Assembly (unless he or it is a party to the proceedings).

(4A) Where the Attorney General or the Assembly is given notice (or intimation) under subsection (4), he or it may take part as a party in the proceedings so far as they relate to the making of the order.

(4B) In deciding any question as to costs or expenses, the court or tribunal may—

  1. (a) take account of any additional expense which it considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of subsection (4A), and
  2. (b) award the whole or part of the additional expense as costs or expenses to the party who incurred it (whether or not it makes an order under this section and whatever the terms of any such order it does make).

(4C) Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this section including, in particular, provision for determining the manner in which and the time within which any notice (or intimation) is to be given.").

The noble and learned Lord said: At present the Bill provides for the Attorney-General to be involved in proceedings in which an order under Clause 112 might be made. However, it is possible that a case may proceed without either the Attorney or the assembly being parties, and as drafted, Clause 112 does not explain how the Attorney might be able to become involved in such a case. The new subsection proposed by Amendment No. 241C provides for that and also makes provision in relation to any additional expenses which a party might incur as a result of any intervention by the Attorney-General or the assembly. I beg to move.

Lord Mackay of Drumadoon

I have no objection to the purpose of this amendment. However, in view of the statement by the Lord Chairman that he cannot call Amendment No. 241D if Amendment No. 241C is accepted, perhaps I should explain what lies behind Amendments Nos. 241D and 241E so that the noble and learned Lord the Solicitor-General will reflect upon it.

Clause 112 as drafted would admit the possibility of the Attorney-General taking part in proceedings in Scotland or proceedings in Northern Ireland. In parts of Schedule 7 reference is already made to the relevant Law Officer. It seems appropriate to follow the same practice in relation to Clause 112 as applies in other parts of the judicial scheme that is laid down, to the effect that if the proceedings are in England and Wales it should be the Attorney-General, in Scotland the Advocate General, and in Northern Ireland the Attorney-General for Northern Ireland. I merely raise these matters in the hope that they will be reflected upon, even though I cannot subsequently move Amendment No. 241D.

Lord Falconer of Thoroton

I am prepared to accept the principle of these amendments. While proceedings to which Clause 112 will apply are likely to arise only in England and Wales, I accept in principle that they could arise also in Scotland and in Northern Ireland. Consequently, I see the sense in the points made by the noble and learned Lord in applying this power to take part in such proceedings to each of the relevant Law Officers.

However, for technical reasons we cannot accept the amendment as drafted. It does not tie in with Amendment No. 241C which we propose in relation to subsection (4). We shall need to consult counsel as to the precise drafting of any amendment. I shall also need to consult colleagues, and in particular with the Scottish Office, as it may have implications for the corresponding provision in its Bill; namely, Clause 93.

The noble and learned Lord has not had the opportunity to move the amendment. However, I make it absolutely clear to him that I undertake to return on Report with our own amendment to meet the point.

On Question, amendment agreed to.

[Amendment No. 241E not moved.]

Clause 112, as amended, agreed to.

Lord Williams of Mostyn moved Amendments Nos. 242 and 243:

After Clause 112, insert the following new clause—

("Redress of complaints