HL Deb 17 November 1998 vol 594 cc1171-5

32 Clause 31, page 15, line 38, leave out ("subject to subsection (2)").

33 Page 15, line 39, leave out ("Presiding Officer decides") and insert ("decision of the Presiding Officer under section 30(1A) is").

34 Page 15, line 42, leave out subsection (2) and insert— ("(2) Such a decision of the Presiding Officer shall not be capable of being overruled by the Parliament.").

The Commons disagreed to Lords Amendments Nos. 32 to 34 but proposed the following amendment in lieu thereof—

34A Page 15, leave out lines 38 to 44.

The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel)

My Lords, I beg to move that the House do not insist on their Amendments Nos. 32 to 34 to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 34A in lieu thereof. These amendments address what is to happen if the presiding officer decides that a Bill or part of a Bill is not within the legislative competence of the parliament.

During an earlier stage of the Bill your Lordships' House made clear that your Lordships were concerned that Clause 31 as drafted provided that the presiding officer could be overruled by the parliament if he decided that a Bill was outwith the competence of the parliament. Noble Lords argued that this would put the presiding officer in an untenable position and would weaken his authority. The House wanted to ensure that the presiding officer was not brought into conflict with the parliament in this way and argued, quite persuasively, that the parliament should not be able to overrule its presiding officer. The Government have listened to the concerns of the House and in these amendments do not seek to undermine them but to address a new anomaly that arises.

We do not think that we can leave Clause 31 as amended by your Lordships' House. It would mean that the presiding officer would have an unchallengeable power to decide questions of legislative competence. We believe that this is an uncomfortable and undesirable position for him or her to be in and these amendments seek to address that. The presiding officer has an important role. However, it is intended that he or she is to be politically impartial. These amendments help to preserve that neutrality. What we have provided for in these amendments ensures that the parliament has the benefit of the presiding officer's views as to the competence of the parliament to consider a Bill. The presiding officer is required simply to make a statement about the competence of a Bill. That is a view to which the parliament will no doubt want to pay particular attention. However, it will then be for the parliament to decide what to do. In some cases, it might decide that some is clearly ultra vires and reject the Bill at an early stage. In other cases, it may decide to amend particular offending provisions. If there is still concern at the end of the process, by which time the Bill becomes an Act—indeed, the question of vires could develop during the passage of the Bill through the parliament—as Members of your Lordships' House know, we have the provision that it is open to any one of the Law Officers to refer the matter to the Judicial Committee of the Privy Council. That is the main forum in which devolution issues, matters of vires, should be properly considered.

I do not believe that there is justification for leaving the presiding officer with the right of absolute veto from the start on what constitutes vires and ultra vires. I hope that noble Lords would agree that the question of vires is simply not the same as the Clerks of the Public Bill Office ruling amendments out of order (oh, that they would do it more often!) or Madam Speaker in another place deciding that a Bill is a finance Bill and should not be considered by this House. The question of whether a Bill falls within the competence of the parliament is on a completely different scale.

We are considering issues surrounding the devolution settlement. I am absolutely convinced that it would be entirely inappropriate to leave one person with the power to decide what legislation the parliament may or may not consider in an area which may raise difficult legal issues. As the Bill stands, this clause creates a dead end, quite at odds with the rationale behind the Bill, which is that ultimately matters of vires should be determined by the Judicial Committee of the Privy Council.

We have built into the Bill a carefully thought-out mechanism for ensuring the resolution of disputes over the vires of a Bill of the Scottish parliament. Leaving the presiding officer with a veto would mean that these provisions would in many instances become redundant; they would not come into play at all. The presiding officer's view and judgment, if unchallengeable, would bring the curtain down on the question of vires at a very early stage. It would mean that the Bill could not be introduced if the presiding officer considered it outwith the parliament's competence. That is too much responsibility to put on any individual person, no matter how well advised—and I am absolutely confident that he would be well advised. I believe that that should rightly be a matter ultimately for the Judicial Committee of the Privy Council. We should not seek to build in ways of preventing the Judicial Committee of the Privy Council from determining matters of vires.

In coming before your Lordships' House today we are setting in place a system that will ensure that the boundaries of the parliament's competence are properly mapped and that a consistent body of law emerges. If we do not do that, we risk the interpretation of one office holder dictating the limits of the settlement where the law may be uncertain and subtle.

We took on board the points made by the noble and learned Lord at an earlier stage and by other noble Lords on the issue of the role of the presiding officer in deciding competence. It is better that he indicates his views, makes his statement and then the matter remains one for parliament to decide. If at the end of the process there is a real question of vires, we have the procedure that we have all accepted; that is, that it is open to any one of the Law Officers to move a reference to the Judicial Committee of the Privy Council. That would enable the whole business of the law around vires to be built up in a consistent and coherent way. I commend the Motion to your Lordships' House.

Moved, That the House do not insist on their Amendments Nos. 32 to 34 to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 34A in lieu thereof.—(Lord Sewel.)

6 p.m.

The Earl of Mar and Kellie

My Lords, as one of those who moved amendments on this issue in Clause 31, perhaps I may say that I am happy with what has been said. There will be a distinct need for prior discussion on the issue of vires before it is introduced. However—I have used these words before—the opposition in parliament will pounce on anything which seems to be ultra vires, and I believe that we can leave this issue to the process of scrutiny.

Lord Fraser of Carmyllie

My Lords, I do not know how my noble and learned friend will advise your Lordships on this amendment. I agree with the noble Lord that ultimately it must be correct that, where there are issues of ultra vires they should be determined by the courts. During the passage of this Bill, we have been trying to reduce the number of sets of circumstances in which there is the possibility that the courts will be drawn into determining issues which may have a political character, even though they contain issues of vires. For that reason, it seemed to me that the amendments we tabled previously were desirable. However, I would agree with the Minister on a personal basis that the line now taken by the Government is certainly preferable to that originally contained within the Bill. Once the Scottish parliament is established, I hope that where the presiding officer has concerns about ultra vires, he will make a clear statement to the parliament at an early opportunity. I trust that the parliament will listen carefully to what he has to say, even if it cannot be bound by it. If that is followed through, the risk that we would wish to avoid—namely, a conflict between the parliament and the courts—would be kept to a minimum.

Baroness Carnegy of Lour

My Lords, I too do not know what my noble and learned friend will say. Can the Minister, when he replies, give us an assurance that this will not load the Judicial Committee with even more issues to consider than it will already have? I know that noble and learned Lords who are likely to be on the Judicial Committee—they are not in their places this afternoon—are worried that the work is mounting up and that they have many other matters to deal with, as well as the affairs of Scotland. Therefore, it would be helpful to have a reassurance that this change, which on the face of it sounds sensible, will not mean that they will have more work than ever.

Lord Mackay of Drumadoon

My Lords, noble Lords will recall that at Third Reading we debated an amendment to what was previously Clause 30 which sought to provide that the presiding officer shall, on or before the introduction of a Bill in the parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the parliament and state his decision. The Minister may recall that on that occasion I foresaw that as laying the foundation for tabling an amendment which forms the basis of Amendment No. 34A which your Lordships are now invited to agree.

The Government's resistance to the form of the Bill when it was last before your Lordships' House was that it would effectively give the presiding officer—the speaker—a veto over which Bills could be introduced to the parliament and which Bills the parliament could consider. Indeed, it was suggested by the Minister on a previous occasion that that would place the presiding officer in a most uncomfortable and undesirable position. I suggested then, and I still adhere to the view, that it would be perfectly possible for the presiding officer to exercise such a jurisdiction which would not have been an absolute veto, as the noble Lord suggested; being a judicially reviewable decision it would be subject to review by the courts.

What is now proposed is that the procedure whereby the decision of the presiding officer could be overturned by a vote will now happen with either the Scottish executive or the Scottish parliament choosing to ignore the decision of the presiding officer. It is instructive to look at the words in the amendment to Clause 30: that the presiding officer shall decide whether or not in his view the provisions shall be within the legislative competence of the parliament.

The effect of the proposed amendment is that it would be perfectly competent for the executive and the parliament to proceed in the face of a decision by the presiding officer that a Bill was ultra vires. It has been recognised by noble Lords that any such decision would be reached after the taking of legal advice. Therefore I have a concern that the Bill as it is proposed to be amended would still lay open the possibility of the presiding officer's authority being weakened because he was not in a position to enforce a decision which he had reached on a question of vires. As the Minister said, it is true that ultimately a Law Officer could refer the matter to the Judicial Committee for a determination of any devolution issues involved. But that may be many months down the line and if the Bill had been debated and, in a situation of some political controversy, agreed to, I venture to suggest that if at that stage the Judicial Committee ruled against the vires of the Bill matters would be much worse than they would have been had the Bill been vetoed effectively at an earlier stage.

This is an example where those of us who sought to improve the Bill have unfortunately had our ideas rejected. As my noble and learned friend Lord Fraser of Carmyllie said, the Bill as it stands is better than when it was introduced into your Lordships' House. I accept that if Amendment No. 34A is allowed, that will still be the position. However, I remain concerned that if the presiding officer reaches a decision, announces that to the parliament and is effectively then overturned, he will not command the respect that he should command. He will not command the respect which will ensure that the parliament operates in as sensible and responsible a way as possible.

Clearly it is not a matter on which it would be appropriate to insist on our amendments in the face of the views of another place. But I think it right that my concerns—I suspect that they may be shared by others—should be ventilated.

6.15 p.m.

Lord Sewel

My Lords, perhaps I may respond briefly to the points made by the noble Baroness, Lady Carnegy. I am always sensitive and conscious of the workload of noble and learned Lords. One would not want the Chamber to be deprived of their valuable observations on many issues if they were overworked on other matters. I do not think that there is any chance of the Judicial Committee of the Privy Council being overburdened with work. That is my understanding. I cannot give an assurance, but that is the projection: that they will not be overburdened.

Perhaps I may return to the point made by the noble and learned Lord, Lord Mackay of Drumadoon. First, there is a real, genuine difficulty with the position that he adopts. It is this. One could have a presiding officer who took a very narrow view of the vires issue and ruled over a long period of time that a series of Bills was ultra vires. With a change of presiding officer, a similar Bill coming into play might be accepted and perhaps might then go to the Judicial Committee of the Privy Council. It upholds that it was within vires. That would mean that a series of Bills had been rejected on the ground of vires by one person without the possibility of test by the Judicial Committee of the Privy Council, the body that was ultimately seen as providing the authoritative advice. I think that that in itself is unacceptable.

Secondly, we have to recognise that over, I imagine, a relatively limited period of time the advice that the presiding officer will receive from his advisers will be based on a developing body of law and decisions taken by the Judicial Committee. It is therefore a good idea to bring the Judicial Committee into play relatively early so that there is an authoritative set of decisions on which future presiding officers will be able to base their advice.

I ask the House not to insist on its amendments and to accept the Motion.

On Question, Motion agreed to.