HL Deb 28 October 1998 vol 593 cc1941-86

4.44 p.m.

Consideration of amendments on Report resumed on Clause 23.

Lord Mackay of Drumadoon moved Amendment No. 108A:

Page 12, line 40, at end insert— ("(12) No decision by the Lord Advocate to grant an authorisation to a procurator fiscal under subsection (11) shall be reviewable by any court.").

The noble and learned Lord said: My Lords, this amendment is linked with Amendment No. 111. It returns to an issue which I raised at Committee stage on 21st July of this year. The purpose of the amendments is self-explanatory. When the Lord Advocate or the Solicitor-General declines to answer a question or to produce a document to the parliament, or whether a procurator fiscal authorised by the Lord Advocate does so, the decision of the Law Officer should not be reviewed by a court of law. It was part of a theme on which I have spoken on a number of occasions in debates on the Bill: seeking to restrict so far as possible the role of the courts in the affairs of the parliament.

As I explained under the Human Rights Bill (which returns to your Lordships' House on Thursday of this week) for the first time it will be possible for the courts to review decisions of the Lord Advocate on certain issues as to whether or not to prosecute individuals and, if so, on what charges. I accept that that is a necessary consequence of the Bill in the terms in which it will in all probability become law. This was a related issue: to try to limit the role of the courts.

When the matter was debated previously, the noble and learned Lord the Lord Advocate indicated that the question was of some interest to the Government. I understood from what he said that it was a matter to which he would give further consideration. Therefore these amendments are tabled in the hope that, further consideration having taken place, a favourable response might be forthcoming.

I shall be grateful if in reply the noble and learned Lord could clarify one matter. In the definition of devolution issues, sub-paragraph (d) of Part I of Schedule 6 states: a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights".

Sub-paragraph (e) states: a question whether a failure to act by a member of the Scottish Executive is incompatible with any of the Convention rights". Am I correct in understanding that the use of that language covers the acts, or failures to act, of the Lord Advocate and the procurator fiscal in the carrying out of the independent functions which the Lord Advocate has as head of the system of criminal prosecution and the system for investigating sudden deaths in Scotland? It appears to me that it does. I refer to Amendment No. 145F which the Government intend to move as an amendment to Clause 53.

I am sure the noble and learned Lord the Lord Advocate understands the reason that I ask the question. If the acts of the Lord Advocate and the procurator fiscal fall within the terms of the sub-paragraphs of paragraph 1 of Schedule 6 it will mean that any final decision as to whether or not an action has been in conformity with convention rights, or is compatible with convention rights, will fall to be determined ultimately by the Judicial Council rather than by the Appellate Committee of your Lordships' House, as opposed to what will happen with other public authorities under the Human Rights Bill. I beg to move.

Lord Hardie

My Lords, as the noble and learned Lord observed, at an earlier stage I indicated that I would consider the matter. The Government have done so and I regret that we are unable to accept the amendments, which seek to remove the possibility of the Lord Advocate facing judicial review where in his judgment a question should not be answered or a document should not be produced to the parliament.

Amendment No. 111 would rule out the possibility of the courts being able to review a decision by the Lord Advocate or the Solicitor General to decline to answer a question or to produce a document about a particular criminal case on the ground that he considers that doing so might prejudice the proceedings in that case or would otherwise be contrary to the public interest.

The Government believe that the Bill as drafted strikes the right balance between the independence of the Lord Advocate in exercising his prosecution functions, and the independence which both the courts and Parliament recognise, and his accountability.

I accept that this is a very sensitive area, but, as I have already explained, we really do believe that we could not justify such an absolute bar as the amendment proposes. Nor do we believe that it would be necessary in practice in order to preserve the independence of the law officers. The mere fact that the courts could be asked to reach a judgment on this issue would not in itself undermine the independence of the Lord Advocate. Indeed, in extreme circumstances it might act as a safeguard, a point to which I shall return.

In any case, should such a case arise, I believe that we can expect the courts to be extremely keen to protect the independence of the law officers in reaching any decision, not only because that is the position which the courts adopt at present but also because the Bill recognises the importance of the law officers having the necessary independence of the executive when they are exercising the special functions of prosecutions or investigations of sudden deaths.

Amendment No. 108A relates to procurator fiscal. Clause 23(11) provides that a procurator fiscal is not obliged to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if the Lord Advocate considers that answering a question or producing a document might prejudice criminal proceedings in that case, or otherwise would be contrary to the public interest, and has authorised the procurator fiscal to refuse to answer a question or produce a document. Similar to Amendment No. 111, Amendment No. 108 would prevent any court from reviewing a decision from the Lord Advocate under Clause 23(11).

I have to say that we are not aware of any recent attempts to use the courts to force procurators fiscal to give evidence about the handling of cases. The most recent instance in Scotland of a procurator fiscal giving evidence at judicial proceedings was at the Dunblane fatal accident inquiry. However, in relation to those proceedings, the procurator fiscal depute was authorised by the noble and learned Lord, who was then Lord Advocate, to appear at the proceedings and was given strict guidance in relation to the questions that he should answer. Given this background, we should expect the courts to be reluctant to question the judgments of the Lord Advocate in this area.

Moreover, as I have already suggested, I am not entirely persuaded that the amendment would strengthen the independence of the Lord Advocate. Assuming that the courts would be jealous to guard that independence, it is certainly possible to imagine that it might assist the Lord Advocate if he is able to demonstrate, in the extreme circumstance of his judgment being challenged, that the courts support his view. A future Lord Advocate might yet have cause to rue the day that that possibility was closed off.

I accept that the amendments are well intentioned and raise important matters. However, as I have indicated, I believe that they are unnecessary and I hope that the noble and learned Lord will feel able to withdraw them.

Finally, perhaps I may deal with a point that the noble and learned Lord raised. The Lord Advocate is a member of the Scottish executive and would be covered by the provisions in Schedule 6, including in respect of his actions as head of the system of criminal prosecution. That is consistent with what I have said hitherto. I hope that in those circumstances the noble and learned Lord will withdraw his amendment.

Lord Mackay of Drumadoon

My Lords, the noble and learned Lord will interrupt me if I am wrong, but I assume that that covers the actions of procurators fiscal as being officials of a member of the Scottish executive.

The noble and learned Lord rightly said that in the event of such an issue coming before the court, the court would treat it as one of great sensitivity and would seek if at all possible not to interfere with a proper exercise of the discretion of either the Lord Advocate or a procurator fiscal. My concern is to cut off any such court actions at source. It may be that that is unnecessary. Although I find it difficult to imagine that a Lord Advocate would welcome having a particular case reviewed in court, I accept that it is possible some time in the future. In those circumstances, I beg leave to withdraw Amendment No. 108A.

Amendment, by leave, withdrawn.

Lord Hardie moved Amendment No. 109:

Divide Clause 23 into two clauses, the first (Power to call for witnesses and documents) to consist of subsections (1) to (7), (10) and (11) and the second (Witnesses and documents: notice) to consist of subsections (8) and (9).

The noble and learned Lord said: My Lords, this is a technical amendment. I beg to move.

[Amendment No. 109A, as an amendment to Amendment No. 109, not moved.]

On Question, Amendment No. 109 agreed to.

Clause 24 [Witnesses and documents: offences]:

Lord Hardie moved Amendment No. 110: Page 12, line 45, leave out ("relating to the matters") and insert ("concerning the subjects").

On Question, amendment agreed to.

Clause 26 [Participation of the Scottish Law Officers]:

[Amendment No. 111 not moved.]

Clause 27 [Acts of the Scottish Parliament]:

Lord Hardie moved Amendment No. 112: Page 14, line 20, leave out from first ("of") to end of line 22 and insert ("an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.").

The noble and learned Lord said: My Lords, I beg to move.

Lord Mackay of Drumadoon

My Lords, before the amendment is agreed to, perhaps I may raise in the Chamber a matter about which I wrote to the noble Lord, Lord Sewel, at the weekend. I requested that the Government make clear the full intentions of the amendment, in particular what is encompassed by the words "invalidity".

This is an issue on which we have touched from time to time in our discussions and debates on the Bill. On the last day of Committee, when discussing the effects on an Act of the Scottish parliament if it had been passed without standing orders being complied with or in contravention of some particular provision of standing orders, the noble and learned Lord the Lord Advocate indicated that any such challenge would be precluded by Clause 27(5) in its current terms. That subsection is being recast by this provision.

In addition to precluding challenge based on failure to comply with standing orders or some confusion as to the voting that took place, I am interested to know what other matters are covered by the word "invalidity". That is part of the wider issue of Parliamentary privilege with which we shall deal later on in our debates on Report. I am interested to know whether it is the Government's intention that Clause 27(5), as they propose to amend it, would exclude any inquiry by a court as to whether or not Parliament had available to it sufficient material, testimony or evidence which justified it enacting particular statutory provisions in the terms in which they wished. I wish to know also whether there were any circumstances in which it would be competent for the court to go behind the letter of the provision of an Act of the Scottish parliament to see whether it had come into being because of some misapprehension on the members' part as to what was the current state of the law; or the factual position relating to the substance of the provision; or any deception, whether innocent or otherwise, in somebody misleading a Committee which had looked to the Bill before it finally became an Act of the Scottish parliament.

Those are all issues which the courts would refuse to entertain in considering legislation passed by your Lordships' House and another place. Therefore, I seek to inquire of the Government what are the full ramifications of Amendment No. 112.

5 p.m.

Lord Renton

My Lords, I support my noble and learned friend in this matter. The rules of order which are bound to be observed and which should be observed in the Scottish parliament will be of no effect if legislation is passed in contravention of those rules.

On many occasions that would not matter very much. It might be a very minor contravention. But rules of order, certainly in another place in our Parliament, provide that in financial matters certain rather rigorous procedures must be followed in order that the financial provisions may be of full effect. I just wonder what would be the result in the Scottish parliament if a rule of order governing a financial matter had not been observed.

Lord Sewel

My Lords, I had intended to deal with these matters when we discussed Amendment No. 138. I am happy to deal with them now or when we discuss that amendment but I should prefer not to deal with it on two occasions. Perhaps the noble and learned Lord, Lord Mackay of Drumadoon, will indicate whether he wants the explanation now or later.

Lord Mackay of Drumadoon

My Lords, if it is convenient, I should like to hear the explanation now.

Lord Sewel

My Lords, I thought the noble and learned Lord might say that. He is quite correct to say that he wrote to me seeking clarification of the provision in Clause 27(5).

The intention is that that provision should have the effect that an Act of the Scottish parliament may not be challenged on any procedural grounds. In that respect, it is intended to make the position of an Act of the Scottish parliament similar to that of an Act of the Westminster Parliament.

I understand that the position regarding Westminster Acts has been discussed in a number of judicial cases. The effect of those cases is that the validity of a Westminster Act cannot be challenged on the basis of arguments about the legitimacy of, for example, the manner in which an Act has been introduced as a Bill; or what was done previous to its introduction; or what passed in Parliament during the various stages of its progress through the two Houses.

Clause 27(5) is intended to confer similar protection on Acts of the Scottish parliament. Accordingly, the intention is that Clause 27(5) should certainly preclude challenges to the validity of an Act of the Scottish parliament on the basis that standing orders have not been properly followed during the parliamentary passage of that Act as a Bill. However, it is intended that it should preclude also challenges on other procedural grounds where it is suggested that a procedural rule of the parliament has not been followed. Therefore, an Act of the Scottish parliament will therefore be in a different position from subordinate legislation which can be challenged on the basis that the procedure prescribed for making the subordinate legislation has not been complied with. I hope that that gives a range of fairly comprehensive assurances which the noble and learned Lord sought.

Lord Mackay of Drumadoon

My Lords, I regret to disappoint the Minister. I am not sure that it provides all the safeguards that I am seeking. However, his response has been extremely helpful in that it clarifies the Government's intentions in relation to this amendment. That will be extremely useful not in relation to Amendment No. 138 but in relation to another amendment which we shall reach next week. Therefore, I am grateful to the Minister.

On Question, amendment agreed to.

Lord Steel of Aikwood moved Amendment No. 113: Page 14, line 25, at end insert ("in relation to reserved matters").

The noble Lord said: My Lords, this refers to Clause 27(7) which at present states: This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland". I wish to add the words "in relation to reserved matters". I am well aware that the Government will tell me that nothing in this legislation prevents this Parliament acting in its sovereign capacity in any way in the future that it so wishes. Indeed, if the Conservative Party were swept to power at the next election it will have the power to introduce legislation to abolish the Scottish parliament and all the work that we have been so painfully putting together. Were they to do that, I am sure that that would lead fairly quickly to the break-up of the United Kingdom. But there is no question that this Westminster Parliament retains absolute power over what happens under the provisions of this Bill.

Having said that, in my view there is no reason to have subsection (7) in the Bill at all. It is entirely unnecessary and otiose. But it is more than that. As worded at present, it is provocative and, indeed, positively offensive because it almost invites this Parliament to meddle in future in the law-making of Scotland on those matters which this Bill devolves to Scotland. That cannot be right. I hope that even if the Government do not accept the amendment or agree to delete subsection (7) altogether from the Bill, they will assure us that it is not intended that this Parliament in future should intervene in matters or attempt to make laws on those issues which we are busy devolving to Edinburgh at present.

It is important to have a clear statement on this because of an exchange which took place in this House on 4th March. It is my understanding that when the parliament is devolved the only residual Scottish executive responsibility here will be through the Secretary of State for Scotland whose post continues. Therefore, I assume that there will have to be some opportunity for Members of the other place to question the Secretary of State for Scotland on his responsibilities because he will be a Minister of the Crown and answerable to this Parliament. Clearly, Scottish Question Time, as we have known it up to now, will change. Almost all of the matters for which the Secretary of State is at present responsible will be devolved, and therefore Scottish Question Time in the House of Commons will cease the minute the Scottish parliament is up and running. That is my understanding.

The reason I raised this issue is that on 4th March the noble Lord, Lord Taylor of Gryffe, asked the then Leader of the House, the noble Lord, Lord Richard, what would be the consequence of that change in relation to this House. He said, Is my noble friend aware that from that date"— the date on which the Scottish parliament comes into being— Scottish Questions will no longer be in order in the House of Commons?". That is not strictly correct and I have described the situation that will obtain. The noble Lord continued, Can we have some assurance that similar strictures will not be applied in the House of Lords in these new constitutional arrangements?". The noble Lord, Lord Richard, replied, My Lords, I am aware of no rules of order in your Lordships' House which would prevent a noble Lord from putting down such a question".—[Official Report, 4/3/98; col. 1200.] That cannot be a complete or accurate answer. Who would answer Questions in this place on behalf of the Scottish executive and the Scottish parliament? It clearly cannot be right that Questions of that kind could be put in this House or in the other place.

I am grateful to the noble Lord, Lord Molyneaux of Killead, for drawing my attention to the fact that, during the days of Stormont, that was exactly what happened. There were no Questions on devolved matters in either House of Parliament, and there can be no Questions on devolved matters once this Act is in operation. Clause 27(7) as it stands, therefore, is dangerous and misleading. I should like to see it either amended or withdrawn, or at any rate to be given a clear statement from the Government as to the absolute limits that will be placed on future interventions from this Parliament in the internal affairs of Scotland after the Scottish parliament is up and running. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, I had not intended to take part in the debate on this amendment because I had not understood what the noble Lord, Lord Steel, was getting at. However, having listened to him, I am tempted to rise to my feet and make a few observations.

First, we have been over this ground firmly with regard to many matters which are devolved but yet have a competence at Community level; for example, agriculture and fisheries. It was made clear to me that, despite these matters being devolved on the face of the Bill, Scottish Members of either this House or the other place could raise Questions on agriculture and fisheries in Scotland so long as they related to the common agriculture or common fisheries policies, or negotiations going on in relation to either.

As I understand it—the Minister made it clear to me and we were grateful for that—the position will be that the Minister for Agriculture, and in this House the Parliamentary Secretary, Ministry of Agriculture, will answer Questions on Scottish matters pertaining to agriculture and fisheries so far as they relate to the common agricultural and common fisheries policies. That is pretty well all of them and therefore gives us carte blanche to continue asking Questions, as my noble friend Lord Monro did yesterday when he asked about the problems of Scottish agriculture.

If we go a little further into areas such as health and education where Community competence is not relevant, the money that will be spent by the Scottish parliament will be voted for by the other place. It seems to me, therefore, that, with a little ingenuity, any Member of the other place could ask Questions about devolved Scottish matters so long as he or she ties the Question into the money voted by the House of Commons to be sent to the Scottish parliament.

Therefore Questions ought to be allowed in the other place in these matters. What I am not sure about is who will answer them. Frankly, I do not believe that the office of Secretary of State for Scotland will last very long after the devolution settlement comes in. Let us assume that, at least in the short term, he will answer. Am I right in assuming that he will be held answerable for the money sent and spent and therefore he will have to answer Questions?

Those are matters to which we will probably struggle to find answers. Whether we will find answers to them on this side of May or whether they will develop in the post-devolutionary phase is a different matter. I shall be interested to hear the Government's response.

5.15 p.m.

Lord Fraser of Carmyllie

My Lords, for slightly different reasons to the noble Lord, Lord Steel of Aikwood, I wondered why this provision was included in the Bill. Let us envisage the circumstance that it is not in the Bill. It does not seem to me that any possible restriction could be imposed on the power of this Parliament to legislate for Scotland at some point in the future.

Unlike the noble Lord, Lord Steel, I am not interested in having a statement of present intention from the Government. As I understand the constitutional theory, a future government would be perfectly entitled, where there is only a devolved parliament, to make laws for Scotland, not least (though I would not advise it) repealing this Act. If there is anything to be said for the Government, it is that at least they have been honourable in stating on the face of the Bill that this remains the case. It does not add or subtract anything to what is the proper constitutional position.

Lord Sewel

My Lords, noble Lords diagonally opposite tabled this amendment when Clause 27 was discussed in Committee and we have had much the same discussion as we had then. I remain unpersuaded by the arguments that I have heard. At the end of the day there is little between us in trying to describe the actual constitutional position and what the future arrangements are likely to be.

We believe that the Bill as a whole makes appropriate provision for sovereignty of the United Kingdom Parliament within the framework of devolution. That is the crux of it. We are implementing a constitutional arrangement which recognises—indeed has to recognise and rightly recognises—the sovereignty of the Parliament of the United Kingdom.

Lord Mackie of Benshie

My Lords, I thank the noble Lord for giving way. Is there any necessity to rub it in?

Lord Sewel

My Lords, it is not a matter of rubbing it in. I welcome the continuing sovereignty of the United Kingdom Parliament. However, in making such an arrangement it is important to capture in the Bill the essence of devolution as opposed to some other model, such as, perhaps, federalism. That is what subsection (7) does. In effect, it says that the United Kingdom Parliament retains all sovereignty, but it is invited to exercise that sovereignty in relation to devolved matters through conferring devolved competence on the Scottish parliament. Therefore, although, formally, the United Kingdom Parliament retains the ability to legislate on all matters, in practice it devolves the power to legislate other than on reserved matters to the Scottish parliament.

Clause 27 of the Bill makes it clear that the devolution of legislative competence to the Scottish parliament does not affect Westminster's ability to legislate for Scotland, even in relation to devolved matters. Indeed, as paragraph 4.4. of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in relation to Northern Ireland earlier in the century, we would expect the convention to be established that Westminster would not normally legislate with regard to matters within the competence of the Scottish parliament without the consent of that parliament. It may just be convenient from time to time.

Various noble Lords have expressed concern about who will be accountable for various policies and who will answer questions about them. It is outwith the scope of this Bill to make arrangements for what would happen in this Parliament after devolution. In the other place the Procedure Committee is looking at what might happen to procedures there after devolution. It will be taking evidence from a range of sources and we should not prejudge the outcome of its considerations. However, as I have mentioned before, it is possible that a convention will develop in the other place that questions as regards matters within the competence of the Scottish parliament are not accepted if United Kingdom Ministers decline to answer them on the grounds that the subjects are matters for the Scottish executive. That approach has worked before in relation to Northern Ireland and I can see advantages in adopting it again.

No doubt your Lordships' House will want to reflect on what we do here following the outcome of the review in the other place. Personally, I should have thought that the kind of self-denying ordinance which may be followed elsewhere is worth considering. I suspect that will happen.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the noble Lord for answering the question about questions. Before he sits down I would like to be clear about legislation. Let us assume that the Government have negotiated on an issue which is devolved; for example, involving agriculture or fishing or some other issue. It has been negotiated in Brussels and a conclusion has been reached there which requires legislation. That has to be passed. Will it be passed by this House for the whole of the United Kingdom or will it pass legislation for England and Wales? I shall leave out Northern Ireland because it involves quite complex devolution. Will it be left to the Scottish parliament to pass parallel legislation for Scotland? I am unclear as to what will happen in those circumstances.

Lord Sewel

My Lords, there are sections of the Bill which we are likely to try to define as regards the nature of the relationship between this Parliament and the Scottish parliament in relation to the acceptance of international obligations and carrying them through into law. I would like to hold back on this until we reach that stage of the Bill.

Baroness Carnegy of Lour

My Lords, before the noble Lord continues, can he say how he sees the role of the Select Committees of this House? For example, there is Sub-Committee D of the European Communities Committee which concentrates on matters relating to agriculture and the like. Will they take into consideration the views of the Scottish parliament? Will the Select Committees address their recommendations to the Scottish parliament as well? These kinds of things should be sorted out before the Bill becomes law; otherwise there will be great confusion.

Lord Sewel

My Lords, I believe that we sometimes create problems for ourselves by seeking to define precisely all matters of detail, when in some cases the application of common sense, based on experience, is perhaps the best way forward. What the noble Baroness asked is a prime example. I believe that something sensible will occur, which is a proper and reasonable way of conducting business.

As regards a point raised by the noble Lord, Lord Mackay of Ardbrecknish, about the Secretary of State for Scotland, he will be answerable to the UK Parliament for the discharge purely of his functions, including the transmission, and the amount, of the block grant to the Scottish executive. However, how that grant is spent will be a matter for the Scottish parliament to consider. On that basis, I hope that the noble Lord will withdraw his amendment.

Lord Steel of Aikwood

My Lords, I am most grateful to the Minister for his reply. In a way I am sorry that I dragged the noble Lord, Lord Mackay of Ardbrecknish, into this discussion. He advanced a most dangerous doctrine by inviting ingenuity among Westminster parliamentarians in future to meddle—that appears to be his view—in the internal affairs of Scotland. I accept entirely what the Minister has just said in his closing remarks, that as long as the office of Secretary of State for Scotland exists—and I agree with the noble Lord, Lord Mackay, that it will not be for very long—it would be unacceptable for questions to be tabled to him about how money is spent simply on the excuse that he is responsible for the transfer of the block grant from the Treasury to Scotland.

The noble Lord, Lord Mackay of Ardbrecknish, introduced a Brussels red herring. I agree with the Minister in considering it a fair point as regards a subject such as agriculture and a clear correlation between Community competence, on the one hand, and the devolved administration of agriculture matters for Scotland, on the other. If there is some agreement where we have to legislate, for example, against, say, five-legged sheep, common sense dictates that the Scottish parliament and this Parliament would agree that one simple piece of legislation should go through this House affecting the whole of the United Kingdom. I do not believe that anyone would take offence at that.

However, if it were a matter relating to our external obligations, that would clearly be a reserved matter. I do not think there is a problem. I welcome what the Minister said about a convention that will grow. I agree with that; namely, that this Parliament will not normally legislate on devolved matters. I would rather that the Minister had added the words "nor interfere" in devolved matters. I do not believe that that is a matter for discussion or questions in this or the other House. I believe that it would be resented in Holyrood if this Parliament were seen to try to interfere in devolved matters. I accept the Minister's assurance that that is not intended and that a convention will develop. It is just unfortunate that these two lines remain in the Bill. We shall just have to agree to differ. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 [Legislative competence]:

Lord Sewel moved Amendment No. 114: Page 15, line 8, leave out subsection (5).

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 115: Page 15, line 12, leave out subsection (6).

The noble and learned Lord said: My Lords, in moving this amendment I shall speak to Amendments Nos. 131, 145, 192 and 192A. Government Amendment No. 192 inserts a new clause which makes provision as to the interpretation of: (a) any provision of an Act before the Scottish parliament, or of a Bill for such an Act, and (b) any provision of subordinate legislation, made, confirmed or approves, or purporting to be made, confirmed or approved, by a member of the Scottish Executive", where such a provision could, on one reading, be outwith the competence of Parliament. The provision clarifies and replaces the existing provisions in respect of these matters in Clauses 28(6) and 50(4). Those subsections are consequentially deleted by Amendments Nos. 115 and 145.

In the sense that it builds on the existing clauses, this is not a new provision. It is, however, a very important one and it may be helpful if I briefly explain how it is intended to work. First, the new clause is intended to apply to the interpretation of Bills as well as to Acts of the Scottish parliament. It will therefore apply in any case where the Judicial Committee of the Privy Council is considering any reference to it of a Bill or of a devolution issue in connection with an Act of the Scottish parliament.

Secondly, the new clause makes it clear that any provisions in such legislation or in Bills which could be read widely as being outwith competence are to be read as narrowly as is required in order for them to be within legislative competence, but only so far as it is possible to do so.

An example might make this clearer. An Act of the Scottish parliament might make general provision enabling the Scottish ministers to hold a referendum on any matter. It would be possible to read that Act as enabling Scottish ministers to hold a referendum on some reserved matters such as independence or the monarchy. The Act would be ultra vires to that extent. However, in order to preserve the validity of that Act, the new clause would require the courts to read the Act as narrowly as is required for it to be intra vires, so far as it is possible to do so. In other words, the courts will be required to read the Act of the Scottish parliament as enabling only the holding of referendums on matters within the competence of the parliament. In that way, the Act is not rendered ultra vires to any extent.

This is thought to be the normal rule of construction which the courts would apply in construing legislation from parliaments with limited powers. They would seek to give effect to that legislation rather than to invalidate it. This is called the principle of efficacy. However, if a provision can clearly only be read as making provision outwith competence—for example, an Act of the Scottish parliament providing only for a referendum on independence or the monarchy—the new clause will not enable or require it to be read as being within competence.

We think it is necessary to have this provision to ensure that legislation made by the parliament and the executive can be given effect in relation to matters within their competence and does not have to be struck down merely because it could, on a broad reading, also potentially relate to matters outwith their competence.

As I have explained, Amendments Nos. 115 and 145 are consequential. They delete the redundant provisions in Clauses 28(6) and 50(4). I beg to move.

5.30 p.m.

The Earl of Mar and Kellie

My Lords, this group of amendments is clearly designed to establish a bias in favour of devolution. It is inevitable that some legislation passed by the Scottish parliament will be tantamount to sailing close to the wind. Wherever the line is drawn, it will be impossible to avoid coming up to the line. There cannot be a legislative no man's land. I am sure that those members of the Judicial Committee who have to rule on devolution issues will find helpful the instruction to read this legislation in favour of the Scottish parliament. This amendment will strengthen the devolution project as it maximises rather than minimises the powers devolved to the Scottish parliament.

Lord Mackay of Drumadoon

My Lords, the noble and learned Lord has helpfully and fully explained the reasoning behind the principal amendment in this group, Amendment No. 192. Perhaps I may invite him, however, to clarify one point, which is whether in practical terms subsection (2) of the new clause will have any different effect from subsection (6) of Clause 28 as it stands. I say that because when this issue was last debated in Committee, my recollection is that the noble and learned Lord, Lord Hope of Craighead, indicated that, if at all possible, the approach to the construction of legislation in one Bill should be the same as in another.

My amendment to Amendment No. 192, Amendment No. 192A, follows the approach taken in Clause 3(1) of the Human Rights Bill, which states: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights". Under the Human Rights Bill as amended in another place—it falls to be considered by your Lordships this Thursday—subordinate legislation will include Acts of the Scottish parliament. Therefore, under the Human Rights Bill, they will fall to be construed by the approach set out in subsection (1) which follows a different style from that in the government amendment but a fairly similar style to that of subsection (6). It was probably for that reason that the noble and learned Lord, Lord Hope of Craighead, expressed the wish that, if at all possible, the same approach should be followed, because if the same provision of an Act of the Scottish parliament falls to be construed under two Bills as against convention rights in each instance, it seems desirable that, if at all possible, the two Acts should indicate that that construction should be along similar lines.

I welcome that part of Amendment No. 192 which indicates that this provision should apply at a pre-legislative stage. Obviously, that is the purpose which my amendment, Amendment No. 131, seeks to achieve.

As I have said, my main concern relates to subsection (2) of the new clause that is Amendment No. 192. I want to be quite clear about whether the Government are suggesting a different approach from that on which we have been proceeding until now in this Bill and in the Human Rights Bill.

Lord Renton

My Lords, I am not in broad disagreement with the Government over what they are intending in this group of amendments. However, if the Lord Advocate will look at Amendment No. 192 and at subsection (2) of that new clause, he will find that, Such a provision"— that is, an Act of the Scottish parliament— is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly". I believe that the word "narrowly" is capable of two interpretations. One is that the provision is to be read so strictly that if there is a doubt, it must be considered outside the competence. I wonder whether the noble and learned Lord would be good enough to consider his view of the wording of that subsection because I am not sure that it is consistent with the broad intention of this group of amendments.

Lord Hardie

My Lords, perhaps I may deal first with the point raised by the noble Lord, Lord Renton. Reading that subsection as a whole, the direction is to read the provision—that is, an Act of the Scottish parliament, as narrowly as is required for it to be within competence". If there are two possible interpretations, one of which would have the effect of taking the provision outwith competence, while the other interpretation would bring it within competence, that is the direction or instruction that we are hoping to give the court. I hope that that explains what we are about. I hope also that we have achieved our objective with regard to the terminology.

I turn now to the points raised by the noble and learned Lord, Lord Mackay of Drumadoon. Following the earlier stages of the consideration of the Bill, and having regard to the comments of the noble and learned Lord, Lord Hope of Craighead, this matter was given detailed consideration by parliamentary draftsmen and by Ministers with their advice. I would emphasise that there is not very much between us as to the intention behind the provision. The amendments of the noble and learned Lord and our amendments are intended to ensure that the courts do not invalidate an Act of the Scottish parliament. In cases of ambiguity, both amendments require the courts to read an Act of the parliament in such a way as to assume that it was within the legislative competence of the parliament.

The difference is largely one of style. The amendment of the noble and learned Lord is more positive, whereas our position is more negative because it requires the court to read the Act narrowly. This matter has been considered by parliamentary counsel and it is their view that the way it is approached in this provision is more appropriate than the formulation of the noble and learned Lord. I understand how the noble and learned Lord came to such a formulation from the human rights legislation. That particular point was considered by parliamentary counsel and the view was taken that, in the context of this Bill, this terminology was the more favoured and more appropriate.

Lord Mackay of Drumadoon

My Lords, perhaps the noble and learned Lord is able to give an expression of the Government's intention. If a court failed to construe an Act of the Scottish parliament under Amendment No. 192, or if it construed it under Clause 3(1) of the Human Rights Bill, in practical terms would the same approach be adopted?

I accept that there are positive and negative ways of putting things. I am sure that the noble and learned Lord will concede that throughout the debate on this Bill we on these Benches have tried to be as positive as possible. Such negativity as there has been has come from other quarters, which I would not care to name in the presence of the noble Lord, Lord Mackie of Benshie.

Joking apart, I am not trying to open up a divide, I am trying to close one off. If it is possible for the noble and learned Lord—either today, on Thursday with the Human Rights Bill or when we come back to this on Third Reading—to make it clear that the form of words used by the parliamentary draftsman in Amendment No. 192 is, in practical terms, necessary to set the courts along an approach identical to that in the Human Rights Bill, that would cover any concern that I have.

Lord Hardie

My Lords, I am quite happy to give that assurance. I will come back and explain the matter more fully at Third Reading, if the House so wishes.

On Question, amendment agreed to.

Clause 29 [Legislative competence: supplementary]:

5.45 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 116: Page 15, line 18, after ("functions") insert ("in relation to the regulation of sea fishing").

The noble Lord said: My Lords, before I speak to this amendment perhaps I could suggest that, to avoid confusion when we come to amendments which have already been spoken to, it might be handy if Ministers resurrect the old practice of getting up and saying that they have already spoken to them and that they beg to move. That would help us all—including, dare I say, the Government Whip—to follow where we are on the Bill and what we are doing.

Your Lordships might be puzzled by this amendment. When your Lordships read Clause 29(3), which was inserted into the Bill at Committee by the Government, you may wonder why I am attaching the words, in relation to the regulation of sea fishing". The reason is very simple. When we discussed this matter in Committee on 21st July 1998, this subsection and a number of other amendments, which come later in the Bill, were all moved by the noble Lord, Lord Sewel, on the basis of dealing with a sea-fishing problem. The noble Lord, Lord Sewel, made it perfectly clear in col. 836 of the Official Report that this all had to do with, the exercise of ministerial and other functions in relation to the regulation of sea fishing [which] will often mean that functions are being exercised outside Scotland."—[Official Report, 21/7/98; col. 836.]

I do not want to pray in aid all that the noble Lord said to prove my point but, perhaps as a résumé, I will quote from column 838 of the Official Report where he said, In effect, Scottish Ministers will be responsible for managing fisheries within the Scottish zone and for managing Scottish boats; and MAFF Ministers will be responsible for managing fisheries within the English zone and for managing English boats".—[Official Report, 21/7/98; col. 838.] Later in column 841 of the Official Report he said, The amendments"— in plural, including the amendment that incorporated this subsection into the Bill— are required, first, in order to ensure that there is an effective transfer to Scottish Ministers of functions in relation to the regulation of Scottish sea fisheries; and, secondly, to ensure that the competence of the Scottish parliament and of Scottish Ministers does not extend to regulating sea fishing by non-Scottish boats outside the Scottish zone of British fishery limits".—[Official Report, 21/7/98; col. 841.] In other words, the whole debate was very much predicated on the fact that the whole group of amendments concerned sea fishing.

I said in my response that I accepted and understood what was being done. But I was puzzled as to why the first amendment—which is the amendment that we now see as Clause 29(3)—had no reference to sea fishing in it. The Minister said he would reflect on what I was saying during the summer. As he has not brought forward any amendments, clearly he has reflected and he has decided that he does not need to do anything.

As it stands, the functions in Clause 29(3) appear open-ended. It is quite a widely drawn subsection. We know from what the Minister said in Committee that it governs matters entirely relating to sea fisheries. For the avoidance of doubt we should put into the legislation the phrase that I have inserted so that it reads, specify functions in relation to the regulation of sea fishing".

No doubt the Minister will give me further assurances, but it would be easier if it was clear on the face of the Bill that this particular subsection referred to the regulation of sea fishing. I beg to move.

Lord Sewel

My Lords, I recognise the points made by the noble Lord, Lord Mackay of Ardbrecknish. He put the context of the earlier amendment and he got it absolutely right; we were talking about sea fisheries. But, on reflection, subsection (3) involves a little bit more than that and I will deal with that extension. Its whole purpose will be to clarify which existing ministerial functions will transfer to Scottish ministers by providing for Her Majesty, by Order in Council, to specify which functions are or are not exercisable in or as regards Scotland. Any order made under Clause 29(3) is subject to affirmative procedure, both at Westminster and in the Scottish parliament. The use of this power will require the agreement of both parliaments. There will be occasions when, although a function is exercisable outwith Scotland, it will be important to be able to regard it as one which is exercisable in or as regards Scotland by virtue of some other connection that it has to Scotland.

The noble Lord is absolutely right in saying that the principal use will be in functions relating to sea fisheries. That is where it is essential that this process exists. But on reflection—I did think about it over the summer—I saw that it has other uses as well; for example, in relation to protection of the marine environment, where existing functions are similarly exercisable in relation to areas of the sea. So it is not just sea fishing but the associated marine environment where one needs this use of words to be able to act effectively.

When such regulatory functions are exercised outwith Scotland there will need to be clear connections to Scotland to justify action being taken by Scottish Ministers and for Scottish courts to recognise jurisdiction in trying offences under Scots law. At sea, however, it is possible to envisage various connections to Scotland that might be thought to satisfy the condition "as regards Scotland". Equally, it might be possible to establish various connections to other parts of the United Kingdom in respect of any particular function. The power could also be used in connection with the executive devolution of functions to Scottish Ministers under Clause 59; for example, by providing that the appointment of Scottish members of a UK or GB body operating in a reserved area is a function exercisable as regards Scotland, so that Scottish Ministers can be given a role in the exercise of the appointment function under Clause 59.

I think I have demonstrated that the principal reason for having the power is related to sea fisheries, but there are certain very, very secondary contexts in which the power would be exercisable and necessary as well. I mentioned the marine environment and the business of Scottish members on GB bodies and the ability of Scottish Ministers to be involved in those appointments. That is why there is reference to "as regards Scotland"—that is necessary—but it is a very minor extension beyond sea fisheries. I hope that satisfies the noble Lord, Lord Mackay.

Lord Mackay of Ardbrecknish

My Lords, I suspect that the Minister should be grateful to me for putting down this amendment because it has allowed him to put on record a much wider interpretation of this subsection than one would have construed from his words at the Committee stage. I suspect that if the Minister had tried to do something rather wider than sea fishing some aggrieved party might easily have taken him to court and prayed in aid his words at the Committee stage. So I think I have done the Minister a big favour—I hope he appreciates it—by allowing him to put it on the record, in case any Pepper v. Hart occasions arise, that this subsection must be interpreted a good deal wider than it was initially in Committee.

I am happy to accept the noble Lord's explanation. I am happy to accept that it does have a wider application. I am therefore content to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sewel moved Amendment No. 117:

Page 15, line 20, at end insert— ("() An Order in Council under this section may also make such modifications of—

  1. (a) any enactment or prerogative instrument (including any enactment comprised in or made under this Act), or
  2. (b) any other instrument or document,
as Her Majesty considers necessary or expedient in connection with other provision made by the Order.").

The noble Lord said: My Lords, in moving Amendment No. 117 I wish to speak also to Amendment No. 205. These are technical amendments which complete the package of government amendments to the powers to make subordinate legislation which we began in Committee. I am pleased to say that the Delegated Powers and Deregulation Committee has reported on our amendments and has welcomed them, recognising that the approach is easier to use and meets the concerns that the committee expressed in its earlier report. I beg to move.

Lord Renton

My Lords, last week, when we had the Northern Ireland Bill before us, we found provisions under which any use by the proposed assembly in Northern Ireland which appeared to be ultra vires could be referred to the judicial process in ways that were specified. The Government had tabled a new clause saying that if the Secretary of State thought it was ultra vires she could take steps to put it right. Reference was made to this Bill because in it we find that there are somewhat analogous powers, although they are not quite the same. I should be grateful if the Minister could tell the House what would happen in the following circumstances. Let us suppose that under Clause 29, as amended, an Order in Council were made in order to modify an enactment or prerogative instrument and then, under Clause 32, the matter was referred to the Judicial Committee, which reached a different conclusion from that of Her Majesty, acting, of course, on the advice of her Ministers. It would seem that the Secretary of State has some powers, but we need not trouble about those. But let us suppose that the Order in Council procedure and the decision of the judicial proceedings did not reach the same conclusion. What would happen? Which of them would have precedence?

Lord Sewel

And answer came there none, my Lords. I thank the noble Lord, Lord Renton, for that point. He will not be surprised to know that I cannot give him an answer here and now, but I promise to give him an answer as quickly and as fully as I can.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 118: Page 15, line 21, leave out subsection (4).

The noble and learned Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Clause 30 [Scrutiny of Bills by the Scottish Executive]:

[Amendment No. 119 had been withdrawn from the Marshalled List.]

Lord Mackay of Drumadoon moved Amendment No. 119A: Page 15, line 30, at end insert— ("() The Scottish Executive and its members shall not be liable in damages to any person who suffers loss as a consequence of an incorrect statement made under subsection (1).").

The noble and learned Lord said: My Lords, this amendment and Amendment No. 119D return to an issue which arose in Committee on 28th July and relate to the statement which a member of the Scottish executive has to make on introducing a Bill to the new parliament. An issue arose as to the nature of the responsibility of the Minister on such an occasion. At one stage the noble Baroness, Lady Ramsay, indicated that there would be no legal responsibility on the individual Minister concerned, but in an earlier part of her speech she referred to the provisions of Clause 48(4), which seem to suggest that not only the Minister who made the statement but other Ministers would also be legally responsible.

From time to time, through no fault of the member of the Scottish executive concerned, an erroneous view will be taken as to the compatibility of a Bill with convention rights or any other aspect of the competence of the new parliament. There being a question of law, lawyers are not always correct, which is why we have a system of appellate courts to correct even the judges who occasionally get the law wrong. It seems to me to be entirely inappropriate that there should be any legal responsibility on a member of the executive or indeed any liability in damages. I have tabled these amendments in the hope that an unequivocal response can be given by the Government. I beg to move.

6 p.m.

Lord Hardie

My Lords, despite the clear explanation of the noble and learned Lord, Lord Mackay of Drumadoon, the Government do not believe that these amendments are necessary. They would prevent members of the Scottish executive or the presiding officer from being liable in damages if someone suffers loss as a consequence of an incorrect statement by a member of the executive that an Act containing the same provisions would be within the competence of the parliament.

We consider that the principles of ordinary law should apply and we do not think it would be right to afford a member of the Scottish executive or the presiding officer the additional protection of these amendments. If someone has suffered a loss as a result of reliance on a statement that proves later to be incorrect—or, more particularly, negligently made—and can demonstrate to a court that he has a competent and relevant action for damages, then it would be wrong to prevent either the member of the Scottish executive or the presiding officer from being liable in damages.

I should point out that when we come to discuss Amendment No. 138, to which my noble friend will speak later, it will be seen that we have provided the parliament and its various officers with the minimal protection that we consider appropriate. If the Scottish parliament considers it appropriate to confer additional protections on the Scottish executive or the presiding officer in relation to damages then it could do that; subject, of course, to compliance with the European Convention on Human Rights. With that explanation, I invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon

My Lords, I am grateful to the noble and learned Lord. He has certainly clarified the matter, although not quite in the way that I anticipated. As I understand his answer, it is to the effect that the Government do not exclude the possibility of legal liability and a liability in damages being established in an appropriate case, however unlikely that might be. However, as the purpose of tabling the amendments has been served, I beg leave to withdraw Amendment No. 119A.

Amendment, by leave, withdrawn.

[Amendment No. 119B not moved.]

Clause 31 [Scrutiny of Bills by the Presiding Officer]:

[Amendment No. 120 had been withdrawn from the Marshalled List.]

Lord Sewel moved Amendment No. 121: Page 15, line 37, leave out from beginning to ("Bills") in line 38 and insert ("It is for the Presiding Officer to submit").

The noble Lord said: My Lords, in moving this amendment I shall begin by speaking also to Amendments Nos. 122 and 124. The Government have brought forward these amendments after being convinced by the arguments that we heard at an earlier stage of the Bill which were offered by the noble and learned Lord, Lord Mackay of Drumadoon. I hope that the amendments virtually establish—in fact, entirely establish—what he sought to achieve at that time.

The amendments turn subsections (3) to (6) of Clause 31 into free standing duties. At present, the clause is written in terms of provisions which are required to be contained in standing orders. During the debate on this clause in Committee, noble Lords proposed that these would be better dealt with on the face of the Bill. We took the matter away, considered the arguments and, I am happy to say, found merit in the latter. We have, therefore, brought forward these amendments in order to capture what was requested.

Amendment No. 126 is a technical drafting amendment which will ensure that references to legislative competence are consistent. I shall not anticipate Amendment No. 129 because I am afraid I do not have particularly good news in that respect. Nevertheless, I beg to move Amendment No. 121.

The Earl of Mar and Kellie

My Lords, these government amendments represent a welcome revision of Clause 31. Indeed, the amended clause is certainly easier to read. Therefore, I can conclude that the amendments moved in Committee were useful catalysts for revision. The proposed procedure now seems straightforward.

I continue to believe that the opposition parties will pounce on anything that is, or seems to be, ultra vires. That action would be in the form of identifying incompetence by a member of the executive or by a Back-Bencher. Perhaps I should modify the expression "opposition parties" in the light of the hopes for consensual politics—or, possibly some hope. Perhaps the phase "non-executive parties" would be more in keeping. These government amendments have tidied up the clause and made it far less contentious.

Lord Mackay of Drumadoon

My Lords, I can certainly confirm that I welcome the government amendments which meet the points that I raised in Committee. I believe I was less than charitable on that occasion about the generosity of the noble Baroness, Lady Ramsay, and I withdraw unequivocally any criticisms that I then proffered. I am also grateful for the fact that Amendments Nos. 119 and 120 were withdrawn from the Marshalled List. I do not need to go into the background of that, but I pay tribute to the noble Lord, Lord Sewel, and his colleagues for recognising the point that was raised through the usual channels on these matters.

Amendment No. 129 addresses a matter raised by the noble and learned Lord, Lord Rodger of Earlsferry, when we debated the role of the presiding officer under Clause 31. On that occasion, your Lordships will recall that subsection (2) of that clause was altered from the way that it was set out in the original Bill. The noble and learned Lord suggested that the presiding officer should also be given the right to refer a Bill to the Judicial Committee for the purposes of pre-legislative scrutiny in the same way that is now proposed for the Advocate General, the Lord Advocate or the Attorney General. I fully anticipate that there may well be an attempt in another place to restructure Clause 31 in some way so as to accommodate the Government's views on the matter. But who can say what will happen to such an attempt?

Your Lordships are faced with Clause 31 in its present terms. On considering the Bill at a pre-legislative point, the Advocate General, the Lord Advocate, or indeed the Attorney General may consider it to be of value to refer the issue as to whether the Bill or any of its provisions is within legislative competence to the Judicial Committee. Therefore, it seems to me that the presiding officer—who, under the Bill, has a similar duty—should have a similar privilege of a right of reference. That is why, when we reach that stage, I intend to move Amendment No. 129.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 122: Page 15, line 39, leave out from beginning to ("not") and insert ("The Presiding Officer shall"). On Question, amendment agreed to.

Lord Steel of Aikwood moved Amendment No. 123: Page 16, line 2, leave out ("Judicial Committee") and insert ("Constitutional Court").

The noble Lord said: My Lords, I should confess at once that I am slightly embarrassed by the absence of my noble friend Lord Lester, who is supposed to be moving this amendment. However, I understand that he is en route to the Chamber. Indeed, we have made such astonishingly fast progress on the Bill this afternoon that he has been caught out.

In Committee I said that at Report stage we would introduce a major amendment to establish in effect a constitutional court by which we mean to update the present procedures of the Judicial Committee of the Privy Council. The whole string of amendments which we are now discussing are mainly paving amendments to Amendment No. 206 on the Marshalled List which sets out a proposed new schedule to establish what we prefer to call a constitutional court.

My noble and learned friends have been active on the Northern Ireland Bill and are proposing a similar provision within that Bill. We are trying to tidy up what seems to be a piecemeal approach by the Government to this whole question of dealing with possible conflicts between the devolved parliaments and this Parliament after devolution. Because the Government have proceeded in a piecemeal fashion with the Wales Act, the Northern Ireland legislation and this legislation, no one appears to have given serious thought to establishing a proper constitutional court, as is common in most countries with devolved parliaments. We are relying instead on our ancient use of the Judicial Committee of the Privy Council. Although I am a member of the Privy Council I must admit that I have never met the Judicial Committee. However, I understand it is a large body with about 30 members—I stand open to correction—and consists of all the current serving and retired Law Lords, and that at any time any small number of these may be appointed to hear any particular case.

We propose that this rather large, amorphous body should be slimmed down and made more precise and that a constitutional court should be drawn from nine members of the Judicial Committee of the Privy Council. We propose that no fewer than four of these should be people who hold, or have held, high judicial office in England; that no fewer than two of them should hold, or have held, high judicial office in Scotland; and that at least one member of that nine should be someone who holds, or has held high, judicial office in Northern Ireland. We propose that on any one particular case: No fewer than five members of the Court (including at least one member who has held high judicial office in Scotland) shall sit to hear any proceedings under this Act". I have not studied the Northern Ireland Bill, but I believe that my noble and learned friends have proposed a similar provision in that Bill as regards the member from Northern Ireland.

We then propose that there should be a nominating committee of persons set out in our draft new schedule who should recommend duly qualified persons to Her Majesty for appointment as the president or members of the court. We suggest that that nominating committee should consist of the Lord Chief Justice of England, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, the Lord President, the Lord Justice Clerk, the Lord Chief Justice of Northern Ireland, two persons appointed by the Speaker of the House of Commons, at least one of whom should be resident in Wales, one person appointed by the presiding officer of the Scottish parliament, and one person appointed by the presiding officer of the Northern Ireland Assembly. We have set out other self-explanatory provisions which relate to age limits and the qualifications of the court.

This is a serious attempt to stimulate a general debate on how we deal with constitutional disputes in the new era when we will have these three devolved assemblies or parliaments operating within the United Kingdom. I hope that we shall at least have a fruitful discussion on them. I beg to move.

6.15 p.m.

Lord Fraser of Carmyllie

My Lords, I appreciate the difficulty in which the noble Lord, Lord Steel of Aikwood, finds himself and I do not wish to add to that difficulty. However, there is one aspect of the proposal on which I seek clarification before I can reach any conclusion on it. I refer to the nominating committee for the constitutional court. The noble Lord has described the office holders which I would properly envisage would make up such a nominating committee. However, if you are a member of that nominating committee, can you sit on the constitutional court? It seems to me to be a rather startling proposition that you could nominate yourself. It seems to me that a number of those mentioned in paragraph eight of the proposed new schedule would be eminently suited to sit on a constitutional court. However, it would be odd if they could effectively appoint each other to be participants in that court.

Lord Selkirk of Douglas

My Lords, I shall speak briefly. I can envisage a strong case for a constitutional court, somewhat akin to the Supreme Court in the United States of America, if the constitutional arrangements were to change in the direction of federalism. I have had occasion to see the Supreme Court of the USA in action. It was enormously impressive. It had written pleadings before it and it decided a large number of cases dealing with states' rights as against federal rights in rapid succession. The Judicial Committee also has a wealth of constitutional experience from the 19th century—when it had to decide issues involving dominion rights and also provincial rights in Canada—to the present day when it has interpreted the rights and the protections of the Maoris in New Zealand under the Waitingi Treaty. I understand that this treaty protected the monarchy and in return the monarchy protected the rights of the Maoris. That was an extremely clever provision on the part of Queen Victoria and the Ministers who advised her at that time. At this stage the Government are right to place their confidence in the Judicial Committee of the Privy Council in view of its wealth of constitutional experience.

Lord Wilberforce

My Lords, I wish to add a few words at this stage. I cannot guarantee to keep speaking until the noble Lord, Lord Lester, enters the Chamber, but I had intended to offer some observations on this matter, as I indicated when the noble Lord, Lord Steel, said in Committee that he would table these amendments on Report. I said that I would be glad to see them.

I feel that the whole House ought to be grateful to the noble Lord, Lord Steel, and his colleague, the noble Lord, Lord Lester, who has recently entered the Chamber, for having given the House the opportunity to consider this important point. I hope that the amendments will receive consideration at this stage, although it may be difficult to reach a conclusion upon them.

There are various points involved in the proposals which we shall hear in due course from the noble Lord, Lord Lester. My particular concern relates to the composition of the court or body which will deal with devolution issues. Under the Wales Act, the Northern Ireland Bill and this Bill it has been decided to leave this matter to the Judicial Committee of the Privy Council. We have heard no reasoned explanation as to why that body was chosen. As the noble Lord has said, it is an amorphous body. I think he underestimated the potential number of its members. I would put the number at over 50 when one takes into account the Court of Appeal and retired Lord Justices of Appeal. At any rate it is an amorphous body which is limited only to a small extent by Clause 96 of the Bill.

The selection of the people to sit on any particular case is left to an informal process not defined by the Bill at all. It may be said—if the noble and learned Lord is to reply to this debate, he may say this—and it certainly could be said, that that is already the position under the existing law. At present the Judicial Committee is even larger than is contemplated by this Bill because potentially it could include Commonwealth members. The selection of members to sit on any individual case is by convention—I emphasise that word because there is no legal provision which states this—chosen by the senior Law Lord. Having had some small experience in that position, I can say that it works quite well, as do many other informal elements in our constitution. Up to now the Judicial Committee has been used to dealing with important constitutional points. Questions arising under the treaty of Waikato relating to the Maoris—I am glad to see that the noble and learned Lord, Lord Cooke, is in his place—have been decided by constitutional courts; and previously under the constitutions of Australia and Canada, until the right of appeal was abolished, very important questions were dealt with by the body so constituted in that informal manner.

Under this Bill we are entering upon a totally new dimension as compared with the kind of cases that have come up to be considered in Downing Street. There are questions of deep controversy, possibly political, which are likely to bear deeply upon the constitution of the United Kingdom and which are sure to be stirred up in Scotland by the active and vigorous elements there which are pressing for an extension of the powers of the Scottish parliament and will continue to do so. Difficult and sensitive questions are likely to arise. We have only to look at Schedule 5 to the Bill to see the vast range of questions that may have to be faced. We must also remember that decisions of the Privy Council, or whatever body it is, will be binding upon English courts and even upon the House of Lords. So there are questions of great difficulty and importance.

In those circumstances, is it not right to say that the process of selection of the judges to sit on a particular case is sure to come under scrutiny by those who are interested in extending the Scottish jurisdiction? Is it not desirable to remove that area from controversy altogether by giving a firm direction in this Bill?

We are between two very different concepts. Under the Bill there is an amorphous body, one that is not defined at all; under the amendments to be proposed from the Liberal Democrat Benches there is great precision, with everything spelt out down to the latest comma: the dominating committees, those who are qualified to sit and those who are not. There is very great precision. I do not know at this stage whether the Government are prepared to go as far as this at this very late stage in this one Bill, when the commitment in other Bills is more or less to a different system. Perhaps they are. I am sorry to speak in the absence of my noble and learned friends, particularly the noble and learned Lord, Lord Hope of Craighead. I hope that this does not go too far. I give general support to the concept proposed in these amendments. I hope that if the Government do not feel able to go the whole way and accept the whole elaborate structure, which is no doubt meritorious but requires a good deal of scrutiny by this place, given that the other place will not have time to examine it at all, perhaps they will at least be willing to contemplate a slightly more limited mechanism in this Bill under which, by an Order in Council made under Clause 96, it might be possible to give some greater definition to the nature of the body that is to sit on devolution issues.

I referred to Clause 96, which gives power up to a certain point to make Orders in Council. If that is not wide enough, it would be easy to extend it at a later stage so as to give power to deal with this matter. I make no suggestion. I simply hope that, if the Government are not willing to accept all the proposals holus-bolus that the noble Lord, Lord Lester, will later urge upon us, they will treat the matter seriously and contemplate including a provision in the Bill to give greater precision to the composition of this court which will deal with important questions. To that extent I warmly support the proposal.

Lord Cooke of Thorndon

My Lords, in supporting the tenor of the remarks made by my noble and learned friend Lord Wilberforce, I should first declare an interest, although it is highly contingent and somewhat temporary. As a number of noble Lords may confirm, at the age of 72, 75 seems to be rushing upon one.

Clause 96(2)(b) of the Bill contains the words, ignoring for this purpose section 5 of the Appellate Jurisdiction Act 1887". The effect is that there is to be ignored the membership of the Judicial Committee of the Privy Council drawn from the Commonwealth outside the United Kingdom. I respectfully raise the query whether that is justified.

Three points occur in that connection. First, for many years the Judicial Committee of the Privy Council, including Scottish and Northern Ireland Law Lords, has adjudicated on constitutional questions from various parts of the Commonwealth, including New Zealand and even Maori questions upon which the committee has been able to give guidance. A degree of reciprocity would seem not at all incongruous. Secondly, it is the case that in some other Commonwealth jurisdictions there is already a wider body of judicial experience of human rights law than as yet exists in the United Kingdom.

Thirdly, an inquiry is presently in being commonly known as the Bloody Sunday inquiry, relating to Northern Ireland. For that purpose an inquiry of three persons has been constituted. Two of the three are Commonwealth judges; one is a member of the Judicial Committee of the Privy Council. It has not been thought right to ignore the Commonwealth for that purpose. One therefore wonders why it is thought right to ignore Commonwealth members of the Judicial Committee for the purposes of the Scotland Bill, the Northern Ireland Bill and the legislation relating to Wales.

In principle there are valid reasons for preferring a Constitutional Court to the Judicial Committee of the Privy Council for the purpose of these devolved questions. The reasons pertain to experience, expertise, specialisation and temperament. Lord X may be admirably equipped to decide issues of domestic law, but by experience, interest and temperament may not be so well qualified to deal with human rights questions. They are a field of their own, in which there is a large body of international jurisprudence—a jurisprudence which requires a sympathetic appreciation of the aims of human rights combined with a certain amount of pragmatism and practicality, a combination of idealism and feet on the ground. It tends to be a field of its own and there is much to be said for a court of its own, a court which will have the opportunity of building up a body of jurisprudence not only within the United Kingdom but also attracting international respect. It would be a somewhat specialised, dedicated court, a limited corps of specialised judges.

It can be said that all this can be achieved under the existing mechanism of the Judicial Committee of the Privy Council. It is true, as I understand the position, that the senior Law Lord for the time being has a residual power in the Judicial Committee to nominate the five members of the committee who will sit on any one case. But that is not the end of the matter. Experience seems to show that there is an administrative element in the question as well: at a somewhat different level administrative convenience and even quite minor issues of expense may have some influence on the composition of the committee.

From the point of view of a security for the effective ascertainment and development of the human rights law that will be required under these pieces of devolution legislation, it may well be that, as against the perhaps less than transparent methods of selecting the composition of the court to sit on individual cases, there will be something rather more open, rather more specialised and possibly therefore more effective in this field than what is at present proposed in the Bill.

It is for those reasons that I support the amendment put down by the noble Lord, Lord Lester, and his colleagues.

6.30 p.m.

Lord Lester of Herne Hill

My Lords, I owe the House an apology for having arrived late. Luckily I do not have to pay costs as I would perhaps in court! I am extremely grateful to my noble friend Lord Steel of Aikwood for having introduced and moved this and other amendments that are in truth the brainchild more of my noble friend Lord Goodhart and myself. It has given me the opportunity to listen to two of our truly great judges, the noble and learned Lords, Lord Wilberforce and Lord Cooke of Thorndon, before I explain some of the background to what is now being debated.

It is with great pleasure that I see the noble and learned Lord, Lord Hutton, in the House. I once had the privilege of joining him in a great case in Strasbourg. He is in that special category of judges from Northern Ireland who are especially brave and noted for their fearless independence.

The purpose of these amendments is to protect the independence of the judiciary and the constitutional separation of powers in the determination of constitutional issues by the final court. The means suggested by the amendments to achieve that aim are threefold: first, to create an appropriate pool of well qualified senior judges to serve on the court; secondly, to create a mechanism for appointing members of the court which is likely to enhance its independence and legitimacy; and, thirdly, to make the Lord Chancellor and former Lord Chancellors ineligible to sit judicially in the final court which determines these issues. That is dealt with by Amendment No. 196.

There will be differences of opinion as to whether we have chosen the right nomenclature for the final court—a "constitutional court", as in South Africa, rather than the Judicial Committee of the Privy Council. There will also he differences of opinion as to whether we have chosen the right way of creating the final court. We are not dogmatically committed to any particular mechanism. What we seek at this stage is to debate the important issues of principle which are essential for maintaining judicial independence and for the rule of law.

During my time at the Bar, the role of our judges has been transformed from being lions sheltered beneath the Throne to a more powerful and controversial judicial role as a co-ordinate branch of government. Subject to the principle of parliamentary supremacy, our courts must set aside Acts of Parliament if they are inconsistent with directly effective European Community law. With the development of judicial review, the courts scrutinise the decisions of Ministers, civil servants, and other public authorities to determine whether public powers have been abused.

Under the Human Rights Act, which is woven into the fabric of the devolution settlements, our courts will have to strive to interpret all existing and future legislation to be compatible with human rights guaranteed by the European Convention on Human Rights. If the Scottish Parliament or Scottish administration, or other public authorities, act in breach of Convention rights, or if they otherwise act beyond their devolved powers, the courts will have to prevent them from exceeding their powers.

The constitutional issues will be similar to the issues decided by courts elsewhere in the Commonwealth and in Europe: by the Supreme Court of Canada, or the High Court of Australia, or the Constitutional Court of South Africa, or of France or Germany. They will involve difficult and controversial decisions about where state power ends and where personal liberty begins; decisions about striking a fair balance between competing human rights; decisions about the respective powers and duties of the Parliament of Westminster and central Government and of the devolved legislatures and administrations.

These decisions are properly justiciable, but they will sometimes be politically and ethically controversial. That is why it is especially important to ensure that the independence, authority and legitimacy of the final court are securely protected.

We believe that the Judicial Committee of the Privy Council is an unsatisfactory model for a final constitutional court for three main reasons. In the first place, as noble Lords have indicated, it has a large and amorphous membership of retired and serving judges, dominated, because of the great size of the English Court of Appeal, by retired and serving judges from that English court. Unlike the House of Lords, whose membership is fixed and stable, the Privy Council, with a jurisdiction derived from the antique Judicial Committee Act 1833, is large, uneven, and geographically completely unbalanced. It is surely anomalous that the entire body of serving and retired members of the English Court of Appeal or for that matter of any other court, should automatically be eligible to sit on the Judicial Committee as the final court.

The second problem is that the composition of the Judicial Committee is in any particular case to be decided in theory by the Lord Chancellor and in practice by the senior Law Lord. There are no prescribed criteria in the Bill according to which the senior Law Lord is to choose from among the large pool of members of the Judicial Committee who have held high judicial office, whether in terms of their special expertise in public law, or in terms of the particular legal system of the United Kingdom where they have performed their judicial functions.

Although the pool of potential members of the Judicial Committee is so large, as the noble and learned Lord, Lord Cooke of Thorndon, pointed out, some very experienced judges with great judicial experience in deciding constitutional cases are excluded from the pool. Under Clause 96(2) as it stands, the senior Law Lord will not be able to choose very senior and experienced Commonwealth judges, such as the noble and learned Lord, Lord Cooke of Thorndon, with much greater expertise in deciding constitutional issues than many of their British brethren. Normally, these judges would be eligible as members of the Judicial Committee but the Government seek to exclude them from the pool.

There is a very real danger that without prescribed and appropriate standards and criteria, the way in which the senior Law Lord exercises his discretionary powers of appointment, on the Lord Chancellor's behalf, in any particular case may become a matter of political controversy, whether in Edinburgh, Belfast, or London. If that happened it would impair the independence and legitimacy of the judicial process, turning the Judicial Committee into a political football, kicked hard by politicians for their partisan political ends.

Nor is that all. If because of the great workload already imposed upon the Lords of Appeal in Ordinary, the senior Law Lord were driven to choose less senior and experienced judges than the Law Lords there is a real danger that the Judicial Committee would lack the authority of the House of Lords. There is also a danger that decisions of the Judicial Committee might be inconsistent with decisions of the House of Lords, leading to awkward conflicts and a weakening of the authority of the judicial process and a lack of legal certainty.

The third flaw in the system proposed is that it breaches the separation of powers and the institutional independence of the judiciary. Under the legislation as it stands the present Lord Chancellor and former Lord Chancellors will remain eligible to sit judicially in the Judicial Committee, and for that matter in the Appeal Committee of this House, in devolution and human rights cases. This is the position even though the Government, of which the Lord Chancellor is a senior and very powerful Minister of justice, are directly or indirectly interested, and even though a party to the dispute is represented by the Attorney-General, the Lord Advocate, the Advocate General for Scotland or the Attorney-General for Northern Ireland.

No one doubts that the present Lord Chancellor wears his three official hats with panache and distinction: as legislator, as Minister of justice and as a senior judge. We do not doubt his personal independence and impartiality in any way. But what matters is that the institutional independence as well as the individual and personal independence of the judiciary should be seen to be free of direct or indirect government interference or any conflict of interest that breaches the separation of judicial from legislative and executive powers. It is no answer to the problem for the Lord Chancellor to delegate the function of appointing the members of the court to the senior Law Lord. That leaves a potentially embarrassing tension within the rather opaque system of choosing the court, especially were the Lord Chancellor to be unwise enough to seek to persuade the senior Law Lord to agree to his sitting as a member of the Judicial Committee or the Appellate Committee.

In two recent Written Answers the Lord Chancellor explained that where cases arise in which the Government or a Minister has an interest as a party litigant, or in which constitutional or political issues are involved, he will exercise his discretion so as not to sit where he considers that it would be inappropriate or improper to do so. With respect, that statement does not altogether deal with the problem. In the first place it should not be for the Lord Chancellor with his three hats to decide whether it is appropriate or proper for him to sit in such cases. The time has surely come to recognise that inevitably it would be constitutionally inappropriate and improper for the Lord Chancellor to sit in any case where the Government or a Minister has an interest as a party litigant or in which constitutional or political issues are involved; in other words—with great respect, it is difficult to say this in the presence of such a distinguished Lord Chancellor—the Lord Chancellor should disqualify himself or be disqualified from sitting in cases of that kind.

Secondly, we had supposed from an earlier Written Answer that the Lord Chancellor had completely delegated to the senior Law Lord the power to decide upon the composition of the Judicial Committee but his latest Answer suggests that he regards his own role as a matter to be determined by the Lord Chancellor himself. That would surely be inappropriate given the conflict of interest inherent in his many public offices.

Thirdly, the Lord Chancellor draws support for his Answers from the fact that Lord Chancellors have recently sat in criminal and tax appeals. That is true. But it does not mean that it was or is now appropriate for him or his predecessor to sit in cases involving the powers of the state and the relationship between the different branches of government. This is a sensitive matter in which counsel in such cases have felt embarrassed about the Lord Chancellor's presence as a member of the Appeal Committee. I do not refer to the present Lord Chancellor, but Lord Chancellors in general. I myself found it embarrassing when the previous Lord Chancellor sat in the appeal in Pepper v. Hart to decide whether it was permissible in law to have judicial recourse to parliamentary debates. The Lord Chancellor presided while the Attorney-General contended that recourse to Hansard would breach parliamentary privilege and weaken the good governance of the country.

The first appeal in which the present Lord Chancellor sat concerned judicial review of public authorities. Last week, I read of a criminal appeal involving the limits upon the right to freedom of association and assembly guaranteed by the human rights convention. There is real concern, not about the present Lord Chancellor, but the recent practice, in the light of the modernisation of the system, to sit in cases of that character. I have discussed the matter with a number of lawyers and judges: for example, Heather Hallett, QC, who chairs the Bar Council of England and Wales; Philip Dry, President of the Law Society of Scotland; Antoinette Curran, President of the Law Society of Northern Ireland; Roy Amlot, QC, recent chairman of the Criminal Bar Association; and Michael Lavery, QC, chairman of the Standing Advisory Commission on Human Rights in Northern Ireland. They all share our concern about the Lord Chancellor continuing to sit in such cases.

Were the Lord Chancellor to sit as a member of the Judicial Committee or the House of Lords in its judicial capacity in such cases I have little doubt that the European Court of Human Rights would, if necessary, find our system to have breached the guarantee of institutional judicial independence under Article 6 of the convention. It has already done so in the case of Procola, involving the Conseil d'Etat of Luxembourg. It would be deeply embarrassing if it became necessary to challenge the presence of the Lord Chancellor before his fellow Lords of Appeal in Ordinary and before the European Court. It would surely be better for the Lord Chancellor to concede the position gracefully, as I am sure he will, without the need for binding rules in tablets of stone. We greatly welcome the general thrust of the Government's constitutional reform programme. We hope that the Government will be willing to accept the implications of that programme for the choice of the final constitutional court and the way that its members are selected.

We have attempted to devise a broadly representative nominating process that avoids appointing judges only after what the noble and learned Lord, Lord Hailsham of St. Marylebone, has rightly described in relation to the appointment of American federal judges as a, cruel, and often politically motivated, scrutiny by a senate committee". My noble friend Lord Goodhart, who drafted the amendments, will explain their scope and detail. I very much hope that there will be support for their aims from all sides of the House, especially from the Woolsack. I beg to move.

6.45 p.m.

Lord Hogg of Cumbernauld

My Lords, I congratulate the noble Lord, Lord Steel of Aikwood, for so ably standing in. He ran on to the pitch wearing a No. 12 jersey and demonstrated a professionalism that left all of us breathless. I am not a lawyer but I am concerned about the constitution. I am deeply aware of the fact that the Government have set their hand to constitutional reform in a very big way. By the time we reach the end of this Parliament we shall have witnessed constitutional change on a scale that has not been seen for decades.

I support constitutional change in all of the areas and along the lines proposed by the Government but I am conservative about changing the constitution. I believe that great care should be taken to get it right and to ensure that what we do on behalf of the people will last and serve them as well as the constitutional arrangements that they have had for so long. A constitutional court has, as a matter of government policy, already been opposed. It is interesting that no amendment was tabled to make such a proposal during the passage of the Human Rights Bill. It is also interesting that it did not emerge when the House discussed Wales. I believe that to bring it into the Scotland Bill in this way is to introduce too far-reaching a proposal and that it is better to examine this idea once all of the constitutional changes are in place and have worked their way through.

I do not much like Amendment No. 196, not least because I have always held Lord Chancellors in the highest regard. I hold the present Lord Chancellor in particularly high regard because he is a close friend. I would not like to consider the suggestion that power should be taken away in this way until I have examined carefully and thoughtfully the case made today by the noble Lord, Lord Lester, and others of our great legal Members.

I greatly admire the previous Lord Chancellor. I thought him a fine man in that role; indeed a fine man. Therefore, I say this to the House. The amendment may be a good idea. I do not know; I am not a legal man. But I wish to be able to consider it carefully. In order to do that, I hope that the noble Lord will not press his amendments this evening. There is plenty of time to change the constitution. However, if the noble Lord feels persuaded to press the amendments to a Division, I hope that the Government will resist them.

Lord Goodhart

My Lords, it is an extremely important issue. I have little to add to what my noble friend Lord Lester said. The arguments he put forward on why we should have a constitutional court are incontrovertible. I entirely agree with him on the reasons why the Lord Chancellor should not sit as a Member of the Judicial Committee of the Privy Council, or as a member of the constitutional court, for the purpose of deciding devolution issues. Effectively, they are issues between the Government at Westminster and the government at Holyrood.

The Lord Chancellor is a member of the Cabinet. He is de facto a Minister of Justice. It would hardly be surprising if in those circumstances, in the course of a dispute between Westminster and Holyrood, he was regarded as parti pris rather than someone who was impartial and independent. Impartiality and independence are at the core of the judicial system. It would be my hope that the senior Law Lord would not seek to appoint a sitting Lord Chancellor; nor would a sitting Lord Chancellor think it right to accept an invitation to sit on the Judicial Committee, if one were offered to him.

The position of former Lord Chancellors—we have excluded them from the amendments—is somewhat different.

Lord Fraser of Carmyllie

My Lords, before the noble Lord continues, will he elaborate a little on the position of former Lord Chancellors? In one fashion or another, I can understand that the present occupier of the Woolsack from time to time might be seen to be excluded in the case of a matter of high constitutional dispute. However, I have greater difficulty in understanding why someone who has left the Woolsack should be excluded from participation in this court. It is not difficult to think of very distinguished Lord Chancellors. One does not have to go back further than the present occupant's predecessor to find someone who might have occupied a position on such a constitutional court and have been a great adornment to it.

Lord Goodhart

My Lords, I accept entirely what the noble and learned Lord says. It is an arguable matter. In future there might be a Lord Chancellor who had been what one might describe as such a highly political animal that Holyrood might think it inconsistent with the existence of an impartial and independent tribunal for that particular Lord Chancellor to be a member. That is not an argument I apply to the previous Lord Chancellor. It could be argued that if there are some cases where it would be inappropriate for a former Lord Chancellor to sit it might be better to exclude former Lord Chancellors altogether rather than to have invidious questions arising as to whether an individual was or was not a desirable member of the constitutional court.

At this stage I do not propose to go into any detail about the nature of the amendment which I drafted at the request of my noble friend Lord Lester. I fully recognise the problems of timing. It is a fundamental issue. Our amendment was designed to raise the issue for debate rather than to provide fully worked-out legislation for the creation of a proper constitutional court. Nevertheless, the arguments in favour of a special constitutional court are extremely strong. In that respect, I am most grateful for the contributions of the noble and learned Lords, Lord Wilberforce and Lord Cooke of Thorndon, with their immense experience of sitting in the highest courts of their respective countries.

I believe that an immensely heavy burden will lie on the senior Law Lord. I saw the present senior Law Lord outside the Chamber; he is not present now. I shall be interested to know what he feels about the burden that will be placed upon him.

It is essential that the court is of the highest standard. When selecting judges to sit on panels, its work must have priority over the ordinary work of the House of Lords and other courts. The senior Law Lord will have to create what is in effect a constitutional court by identifying, from the wide scope offered him by the substantial membership of the Privy Council and those legally qualified to sit on its Judicial Committee, a group of judges who can develop a sense of teamwork and expertise in this field.

In the exercise of those functions, there is no doubt that the senior Law Lord may be exposed to political pressure. For that reason, even if the matter does not go forward on this occasion, I believe that it should be the start of further debate, as the noble Lord, Lord Hogg, suggested, leading in the not too distant future to the enactment of legislation providing for a properly chosen constitutional court with proper powers to act as such.

Lord Hutton

My Lords, notwithstanding the kind words of the noble Lord, Lord Lester of Herne Hill, for which I am most grateful, I rise to speak with considerable diffidence. My diffidence arises for a number of reasons. First, it is my maiden speech in your Lordships' House; and that itself is a reason for diffidence. Secondly, I realise that it is somewhat unusual to make a maiden speech at Report stage. However, the point on which I wish to speak had not arisen at the earlier stages of the Bill. I am grateful for all the helpful indications I have received that it might be permissible for me to speak at this Report stage.

My third reason for diffidence is that it is a Bill relating to Scotland and I, as a former judge in Northern Ireland, am venturing to speak on the amendments. But they relate to a proposed constitutional court of which at least one member will be a Northern Ireland judge, or a former Northern Ireland judge, and there would also be a representative of Northern Ireland on the proposed nominating committee. It would include one person appointed by the presiding officer of the Northern Ireland Assembly, as there would be one person appointed by the presiding officer of the parliament in Edinburgh. Therefore, I hope that your Lordships may feel that it is not inappropriate for me to speak on these amendments.

One of the objectives of the amendments is to ensure that if a devolution issue relating to Scotland becomes the subject of a final appeal from the Inner House of the Court of Session there would be at least one Scottish judge who would sit on the final appellate court. The amendments to the Northern Ireland Bill have the same objective in relation to a Northern Ireland judge.

However, I have a reservation about the proposal in the amendments that there should be a nominating committee which would recommend persons to Her Majesty for appointment to the proposed constitutional court, and in particular about the proposal that one member of that nominating committee would be a person appointed by the presiding officer of the Northern Ireland Assembly. My reservation arises in relation to a point which has already been made tonight by the noble and learned Lord, Lord Wilberforce. He made it during discussions on the Bill on 8th October, col. 618, in relation to whether dissenting opinions on devolution issues should be permitted in the Judicial Committee. The point he made was that devolution issues will be highly political issues when they come before the final court. Of course, devolution issues relating to Northern Ireland will also be highly political.

During the past quarter of a century many cases have come before the High Court and Court of Appeal in Northern Ireland which have had an intensely political background. There was, for example, a case where members of Sinn Fein could sit on local councils at a time when the IRA was conducting a terrorist campaign. But throughout those years, the judges in Northern Ireland strove to remain detached from and above the political frame. I hope, and I believe, that they have largely succeeded in doing so. So far as I am aware, there have never been any serious suggestions that the decisions of the Northern Ireland judges have been influenced by their political views.

I am concerned that if there were to be a nominating committee, particularly if one member were appointed by the presiding officer of the Northern Ireland Assembly, almost inevitably there would be a discussion, which would be bound to become known in the public sphere, about what were believed to be the political views and leanings of individual judges in a way which has not taken place before. If it were known that certain judges were being considered for appointment to the constitutional court suggestions would no doubt be made that judge A was believed to have nationalist views and judge B was believed to have unionist views. I believe that considerable harm could be done to public confidence in the judiciary—and this is such an important factor—if there were public debate and discussion about the political views of judges, as I believe there would be if a nominating committee were established.

I appreciate the points that have been made tonight by the noble and learned Lord, Lord Wilberforce, about the desirability of a better mechanism for defining the judges who would sit in this final court. I also appreciate the point made by the noble and learned Lord, Lord Cooke of Thorndon, that a similar body of judges would be able to develop a system of jurisprudence. However, I wish to raise for consideration the reservation that I mentioned about the risk which I feel would arise from the nominating committee proposed in the amendments.

7 p.m.

Lord Mackay of Drumadoon

My Lords, it is a privilege to be the first to congratulate the noble and learned Lord, Lord Hutton, on his maiden speech. In the careful speech which he has just delivered, he has made a valuable contribution to our debates on these important amendments and has well illustrated one of the sensitivities which are undoubtedly involved in setting up a constitutional court of the nature proposed by the noble Lord, Lord Lester, and his colleagues.

The noble and learned Lord, Lord Hutton, joined your Lordships' House last year as a Lord of Appeal in Ordinary after many years of distinguished service in the legal profession in Northern Ireland, initially as a practising lawyer and then as a judge. Those of us who are aware of the pressures under which judges work need not elaborate on the additional pressures imposed upon judges in Northern Ireland. It is right that we should pay public tribute to the service given by the noble and learned Lord before he became a Lord of Appeal in Ordinary.

Apart from being an able lawyer, the noble and learned Lord is a man of great charm with a wonderful sense of humour. I first came to know him a few years ago when I attended a conference in Athens of chief justices and senior prosecutors from the European Union. We sat for several days in a rather non-descript tourist hotel discussing the issues which one discusses at such conferences: the appointment and sacking of judges, how to combat international crime and so forth. All the time the sun shone and we gazed out of the window to the sea where many of us wished to go and bathe.

Our hosts believed that the conference would benefit from a visit to Delphi. We embarked on the bus to consult the oracle who, as your Lordships will recall, does not always speak in straightforward terms. It was on that trip that the noble and learned Lord came into his element. He communicated with the guides who showed us around in a most amusing and helpful manner. We all came away much better informed and were very grateful to him. I am sure that he has a great deal to contribute to our future debates on this and other Bills and we look forward to hearing from him frequently.

I turn to the amendments introduced by the noble Lord, Lord Steel. The skill he displayed earlier in the debate reminded me of my first acquaintance with him when we were at school. I hasten to add that I was several years behind him in age. My first recollection of the noble Lord's debating skills was when he took part in a mock election. On that occasion, he was a senior representative of one of the joke parties which were taking part. I am sure that if my noble friend Lord Mackay of Ardbrecknish were present he would observe that some things never change.

It is right that I should recognise that these amendments raise very important issues. The House will welcome the fact that they are being ventilated and we look forward with interest to the response of the noble and learned Lord the Lord Chancellor. Undoubtedly, the setting up of judicial procedures for the determination of devolution issues under the Wales, Scotland and Northern Ireland Bills has been a very important part of this tranche of legislation. It is clear that there is no easy solution to what is the best way to proceed.

I expect that in recent months I have not been alone in having ambivalent views as to whether it should be the Appellate Committee of your Lordships' House or the Judicial Committee of the Privy Council which should have the ultimate say in the resolution of devolution issues. There are arguments in favour of both solutions. Indeed, amendments seeking to change the position were tabled in the Wales Bill and debated at that time. The amendment brought forward by the noble Lord, Lord Lester, put forward a third solution and one which undoubtedly merits serious consideration.

Like the noble Lord, Lord Hogg, I am not yet convinced that the constitutional court is the correct approach. But I am convinced—and I share the view of the noble Lord, Lord Hogg, on this—that it is a matter which merits serious consideration. I very much hope that this may be the start of examining the whole issue.

It seems to me that before one establishes any body called a constitutional court a number of issues must be addressed. First, what is to be the totality of its role? Is it merely to deal with devolution issues, or is it to have a final say on human rights issues or other aspects of legal work which could be conveniently and sensibly diverted to that court and taken away from the Appellate Committee of your Lordships' House? I do not suggest that there are such issues but I suggest that those matters must be addressed.

Another major aspect to consider is the relationship of such a court with parliament itself. The third major issue is the composition, on which the noble Lord, Lord Lester, has touched, as has the noble Lord, Lord Goodhart. I believe that it would be a serious mistake to set up any body calling itself a constitutional court until all those issues have been fully addressed. For that reason, on these Benches we could not support the amendments if they are pressed, albeit that we fully support the good sense in raising this as an issue which merits consideration over the next few years.

7.15 p.m.

Lord Hope of Craighead

My Lords, I too congratulate my noble and learned friend Lord Hutton on his maiden speech. I am sure that I was not alone in being very impressed by the manner of his delivery and also the great perception which he was able to bring from his unique perspective of the implications of some of the detail of the amendments before us this evening.

I should apologise to the noble Lord, Lord Steel, because I was not here during his introduction to the amendment. I should apologise also to my noble and learned friend Lord Wilberforce for being invisible to him for, I believe, the second occasion within three weeks of discussion on this Bill.

I speak with the experience of having sat on the Judicial Committee from time to time. Therefore, I shall add one or two observations from, as it were, inside to supplement the points made by the noble Lord, Lord Lester, in his more detailed remarks in support of the amendment.

The issues which are behind the amendment are of great importance. I have already drawn attention in my speech on Second Reading to the constitutional significance of the changes which this Bill will bring about. I have no doubt that the judicial aspects of the Bill will have to serve as an anchor for the way in which the whole process of devolution will work itself forward within the framework which has been provided for it by the Bill.

Two points are of great importance in understanding the function which the Judicial Committee or the constitutional court, whatever it is called, will have to perform. One is that among the duties which it is being asked to perform under the Bill as it stands is the duty of preliminary scrutiny provided in Clause 32. My understanding of that measure is that it will provide the only guarantee which can be provided under the devolved structure that a Bill which has been passed by the Scottish parliament will be immune from further attack once it comes into force. It seems to me that that is an extremely important function and it is one which the judicial body may have to perform at very short notice. Therefore, in considering the whole issue, one should bear in mind not simply the matters which may arise under Schedule 6 but also the Clause 32 procedure.

The second point is that, taking the amendment as it is presented to us this evening, for, I believe, very good reasons, the qualifications which are put forward for membership of the constitutional court depend heavily on those judges who are already serving in very senior positions in our system. It seems to me inevitable that the bulk of the membership of a new court as so designed, as is certainly the case in the case of the Judicial Committee, will come from the Lords of Appeal in Ordinary, who have important functions to perform in your Lordships' House. Other senior judges may participate, although I rather suspect that if the Lord President of the Court of Session is being asked to be a member of the nominating committee, that disqualifies him from being a member of the constitutional court. That would be a disadvantage which may require further thought.

My experience of working within the body over the past two years has been that one of the strengths of the system from the administrative point of view is the flexibility which exists between the Appellate Committee of this House and the Judicial Committee of the Privy Council. It is often necessary at short notice to alter the scheduling of cases which come before your Lordships' House: cases over-run; some cases require to be introduced here as a matter of urgency; and some cases, for some reason, are shorter than has been expected. That phenomenon is present also in the Privy Council as it works at the moment.

I should have thought that it would be inevitable in the new process that matters will require to be decided at short notice by the new body. That seems to me to point strongly in favour of flexibility, using as best one can the administrative processes which we already have to support the existing Judicial Committee in its work.

Without elaborating, I am very much of the same view as the noble Lord, Lord Hogg of Cumbernauld, that this is not the juncture at which one should start to redesign the arrangements which we have for dealing with those extremely important issues. I am grateful to the noble Lords, Lord Steel and Lord Lester, for raising the issue because it certainly needs to be discussed. However, from my point of view, I prefer to leave the existing structures that we have, bearing in mind that time is now very short for us to have the processes in place for the coming into effect of the Bill.

However, one detail has been raised in the early course of this debate by my noble and learned friend Lord Cooke of Thorndon; that is, the issue of Commonwealth judges. There was force in the point that he made that those who have experience elsewhere in the Commonwealth of constitutional and human rights issues have an expertise which may be of value to the Judicial Committee in carrying out the functions which are given to it by the Bill. It seemed to me a pity that they were excluded under the Bill as it stands. Now that the issue has been raised, I warmly support the points which my noble and learned friend made on that issue.

Lord Clyde

My Lords, I add my warmest congratulations to my noble and learned friend Lord Hutton on his maiden speech. What impressed me in particular was the solid contribution which he made with reference to his own experience and the reality of this kind of problem.

I share the attraction, in theory, of the idea of a constitutional court, but I also strongly share the anxiety as to whether the introduction of such an institution is appropriate simply in the context of this Bill and the Scottish problems.

I suggest that one should put the attractive theory into the background and consider immediately the real problems that come from the reality of experience. It was said that the Judicial Committee of the Privy Council has a large and amorphous membership. That may be right. But what is the practice? In practice, from my experience I know that the composition is usually five of the Law Lords. As your Lordships are well aware, there are 12 Law Lords and we sit in two committees of five for four days a week. Five of us are in the Privy Council and five of us in the Appellate Committee of your Lordships' House. There are on occasions—relatively frequent occasions—one other or more rarely two others who help out in the Privy Council. But basically it is the membership from the Law Lords which comprises the present Privy Council.

I say that not with any complaint about the workload which that involves. As your Lordships with a quick understanding of arithmetic will appreciate, two committees of five out of a membership of 12 does not leave much room for manoeuvre, particularly as one of our members is presently engaged elsewhere on an inquiry. But the system works and I should like to think it works well.

What will be essential for the resolution of disputes under this Bill is a speedy and efficient system which can produce solutions and resolve disputes at short notice. If one has an elaborate institution which requires nominations to be made, which requires selections to be made, there will immediately be a practical problem in simply collecting the parties together. Can one be confident at this stage that there will be so much work as to secure that there will be a permanent body sitting week after week on these problems.

There is a second problem and it is as follows. One advantage of the work of the Judicial Committee and the Appellate Committee is that the five members know each other fairly well; get on reasonably well together; and can work together as a group effectively and I hope efficiently. If one is looking to gather individuals who may not be significantly identical for different cases, then one will not get that consistency, that common spirit which is important for the effective working of such a court.

Thirdly, if one is going to start afresh with a new body, we will have to create a secretariat, find premises, find the whole machinery which is required as a back-up. That can be done. It will cost money and it will take time. Fourthly—a point that has already been made—the existing members of the Judicial Committee of the Privy Council have been enabled to acquire some expertise in constitutional matters from cases coming from outside these shores. That is a starting point, at least a base, from which a jurisprudence in the problems that we are now to face can grow.

The noble Lord, Lord Lester, complained of the large and amorphous membership. I should like to counter that with an understanding of the reality of practice. He raised the problem of the separation of the powers. Again, one can see the force of that, but it relates principally to the practical problem of selecting the specific individuals who are to sit on the determining tribunal. That was his second point. How does one choose the individuals? That is perhaps at the heart of the whole problem and it is a problem of course which lies already within the proposed amendment. While the nominating body nominates seven individuals and the quorum is five, who is to identify and choose the five who are to sit. Therefore problems will arise even on this proposal.

In practice one would hope that the system at the moment works reasonably well. It is flexible, as my noble and learned friend Lord Hope of Craighead said, and can cater for last minute emergencies. If it is unacceptable to have one individual making nominations, perhaps the solution would be to provide for some small advisory body which would be available to help out, if that would give a better public image to the critical matter of selection. I suggest that it is in the selection that the heart of the problem may lie.

I am attracted by the idea of a constitutional court, but I believe it is too early.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble and learned Lord, Lord Clyde, for giving way. I wonder whether he appreciates that we are seeking what he is advocating, though perhaps in an over-elaborate way. If one could have an assurance that Law Lords would sit as they do at present in the Judicial Committee of the Privy Council and that the large, amorphous group of retired and existing members of the English Court of Appeal, for example, would not sit and therefore one would have the seniority and authority which comes from the House of Lords and the Judicial Committee in their present composition, that would go a long way to meeting the point. I am not sure whether the noble and learned Lord appreciates that that is what we are seeking to achieve rather than some radical reconstruction.

Lord Clyde

My Lords, I certainly understood that the creation of a new court was a bold step forward and, as I said, it is a step I would have some sympathy in supporting in principle. But not yet and not here. In relation to the specific problem of appointment, there is very little in dispute. However, I wonder whether that is best done by one of the instant overnight conventions which are appearing in this new world, rather than by an express legislative provision.

The Lord Chancellor

My Lords, it was a pleasure to listen to the maiden speech of the noble and learned Lord, Lord Hutton, a highly distinguished former Lord Chief Justice of Northern Ireland, during your Lordships' debate on these amendments. We look forward to many contributions from the noble and learned Lord and I am sure that they will be of the same high quality and just as much to the point as his contribution this evening. He has no cause for diffidence, except when making a maiden speech.

The Government cannot accept Amendments Nos. 206 and 202 and the consequential amendments—Amendments Nos. 123 to 202—which would create a constitutional court to carry out the role which the Bill provides for the Judicial Committee of the Privy Council in determining questions concerning the legislative competence of the Scottish parliament and executive.

The Government came down for the time being, as a matter of policy against a constitutional court in paragraph 2.4 of the White Paper, Rights Brought Home. That was the White Paper which preceded the Human Rights Bill. That Bill is to return to your Lordships' House tomorrow for its closing stages. No amendment to provide for a constitutional court was moved to the Human Rights Bill in the other place or this House.

An amendment for a quite differently appointed and composed constitutional court was sought to be made to the Scotland Bill in another place, but was comprehensively rejected by 388 votes to eight. Amendments of a different nature have now been tabled in this House, not having been tabled in the other place.

Next, the Welsh devolution legislation has already been enacted without any provision for a constitutional court. No amendment was moved to provide for such a court in either House. Under the Government of Wales Act, Schedule 8 paragraph 10, devolution issues go to the Judicial Committee. It is outside the scope of the Scotland Bill to replace those provisions in the Government of Wales Act with provisions for a constitutional court.

The backdrop to this issue is this: the Government are incrementally carrying into effect a major programme of constitutional reform—devolution to Scotland and Wales; the Human Rights Bill; in due course, a freedom of information Bill; the Northern Ireland Bill; and the legislation providing for an elected mayor and assembly for London. It may be that, after all that legislation beds down, longer-term thought should be given to the appropriateness of a specialist constitutional court. So I can be encouraging to that limited extent. But this Bill is not a natural vehicle for that, since policy has been settled for so long and the Welsh ship has left the harbour. If those proposing this amendment will forgive me—although I believe they have already conceded it—what they are really doing is putting down a marker for another day.

The one part of these amendments which the noble Lord, Lord Lester, did not dwell on in detail was how they propose the membership of this new constitutional court is to be determined. Your Lordships should consider the proposal and then consider how well thought out it is.

The amendments propose a nominating committee, consisting of seven senior judges, plus two persons appointed by the Speaker of the House of Commons, at least one of whom is to be resident in Wales; one person appointed by the presiding officer in the Scottish parliament; and one person appointed by the presiding officer of the Northern Ireland Assembly. So seven senior judges are to share with four lay people, I assume, the responsibility for nominating. Presumably, it is envisaged that these four will be drawn from the world of politics, and perhaps from the House of Commons, the Scottish parliament and the Northern Ireland Assembly. So seven senior judges are to share with four politicians—probably party politicians—the responsibility for appointing a nine person constitutional court, consisting of a president and eight other members, who shall be Lords of Appeal in Ordinary or hold other high judicial office.

This raises for consideration whether four party politicians should share equally with seven of the most senior judges in the United Kingdom responsibility for appointing the new constitutional court. That prompts the question: why should four politicians participate in this function with the higher judiciary? What is the purpose of their involvement? My present view, which I believe the noble and learned Lord, Lord Hutton, expressed, is that this proposal carries with it a great danger.

It would appear that an important consideration in making recommendations for appointments to this new court would be the political attitude or outlook of those to be nominated. I am not persuaded by anything that I have heard in the debate today that it would be appropriate to involve politicians with the higher judiciary in a process for the recommendation to Her Majesty of those to appoint to the proposed constitutional court. It would fuel a perception that those appointed might not decide these cases strictly according to law because each had to pass some test of suitability on political grounds. This perception would be the stronger because only Lords of Appeal in Ordinary or those holding high judicial office can qualify under the amendments. So on what basis are party politicians to assess who among them are suitable for this role? What role could politicians rationally have in choosing among very senior judges unless to exercise some politically-based judgment on their comparative merits?

7.30 p.m.

Lord Lester of Herne Hill

My Lords, I am grateful to the Lord Chancellor for giving way. I wonder whether he is aware that, first, the amendment does not require politicians but only persons who are nominated. They do not need to be politicians. For example, they could be the Chairman of the Bar Council at the time. Secondly, is the noble and learned Lord also aware that these arrangements involve a much smaller political element than any of the arrangements of Commonwealth constitutional courts in countries like South Africa or Canada or the great constitutional courts of Europe, such as the German, French and Italian courts? Is he aware that they are much more modest, with a very small input of people appointed by politicians, in order to do the appointing?

The Lord Chancellor

My Lords, with great respect, it appears to me in the highest degree probable as regards the nature of the officers of the parliament and the assembly who will be in a position to nominate the lay persons that in practice they will be party politicians.

On this aspect of the matter I agree with the short speech made at the outset of this debate by the noble and learned Lord, Lord Fraser of Carmyllie. It is a curious notion that members of the nominating committee should be able to nominate themselves. Surely they must be able to do so because it would be odd in the extreme, as the noble and learned Lord pointed out, if they were to be excluded. It would be even more odd if politicians are sitting with them on the same nominating committee assessing the respective merits for appointment to the constitutional court of their judicial colleagues on the nominating committee. I suggest that more considered thought needs to be given to these amendments.

Since we are laying down markers, I do not favour the proposal that the court should be in some sense geographically balanced, so that no fewer than four of the judges shall be from England and Wales, no fewer than two Scottish and no fewer than one Northern Irish. This kind of provision requires careful thought because it suggests that the geographical origins of the judges may affect their judicial decisions—a suggestion that might well be made in a contentious devolution vires case but which must not be accepted. Judges decide according to law, uninfluenced by whether they come from the legal system of England and Wales, Northern Ireland or Scotland.

My view is that, certainly for the present, we stick with the Judicial Committee. The Judicial Committee can draw on eminent judicial figures from those who hold or have held the office of Lords of Appeal in Ordinary or other high judicial office in the United Kingdom. I can confirm that in practice it would be the senior Law Lord who would decide on the composition of the Judicial Committee in these cases; and he would have the broadest range of judicial experience from which to choose. We would expect a convention to develop along the lines of Scottish civil appeals to the House of Lords where there would always be at least one Scottish judge—and in practice perhaps more—sitting on the Judicial Committee for Scottish devolution cases.

I turn to Amendment No. 196. The noble Lord, Lord Lester, is seeking to establish what my role, and that of my predecessors and successors, will be in devolution cases. As regards Amendment No. 206 I emphasise to the noble Lord, Lord Goodhart, that no past or present Lord Chancellor may sit on the proposed constitutional court. When exercising their judicial functions as head of the judiciary, Lord Chancellors are bound by their judicial oath in the same manner as every other judge. Where cases come to the Judicial Committee under the devolution legislation I will exercise my discretion not to sit where I consider it would be inappropriate to do so. I have no doubt that any future Lord Chancellor would decide likewise.

It could perfectly well be that my decision would be that it is inappropriate for me to sit in every such case. But I do not believe that it is desirable to lay down rigid rules. Any Lord Chancellor would follow this sensible course where, for example, there is a dispute between the United Kingdom Government and the Scottish executive.

However, I do not accept in the present state of the debate at any rate that there is a category of case, even if it could be adequately defined, to be called constitutional which should be out of bounds for the Lord Chancellor when he sits as the head of the judiciary. There are many criminal cases which can be said to have a constitutional element, but frequently Lord Chancellors sit on them. Equally, Lord Chancellors often sit in tax appeals which are important disputes between the citizen and the state. It is not our way to lay down rigid rules fettering discretion in the decision whether it is appropriate to sit in particular cases. These decisions must be taken case by case.

So I cannot advise your Lordships to accept these amendments. We should stick for the time being with the Judicial Committee. It has a long history of dealing with cases and appeals of a constitutional character from the Commonwealth. I agree, therefore, with the wise words of the noble and learned Lord, Lord Mackay of Drumadoon, that the time for these amendments has certainly not yet come. With the greatest of respect to the proposers of these amendments, I suggest that they need much more considered thought and to be revisited on another occasion. Meanwhile, I encourage the noble Lord, Lord Steel of Aikwood, to seek your Lordships' leave to withdraw Amendment No. 123.

Lord Steel of Aikwood

My Lords, I am most grateful to all who have participated in this debate. I reiterate that our purpose in tabling the amendment was precisely to ensure that we should have for the first time a thorough debate on the proper constitutional and legal arrangements to put in place in our country post the devolution settlements. This debate has admirably achieved its purpose—and I say that without any intention of seeking to press the amendment to a Division.

Indeed, I am heartened by the fact that the noble and learned Lord the Lord Chancellor used the phrase "for the time being". In a strange way, that echoes what the Scottish Constitutional Convention said on the issue. It stated: The Act shall make provision for the settlement of disputes as to the relative powers of the UK and the Scottish Parliaments … an existing body shall be used in the first instance with options including the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council". So even as far back as the deliberations of the Scottish Constitutional Convention, we were imagining that we might well be saddled with the existing arrangements for some time to come. The Lord Chancellor is correct that as the new bodies—the Northern Ireland Assembly, the Welsh assembly and the Scottish parliament—bed down, this subject will have to return to the agenda.

As has been said, we are seriously proposing a major series of constitutional reforms at the tail end of the 21st century and yet overlaying them with a system of appeal established well before the end of the last century. That seems a strange way to proceed. So, I have no doubt that this House and other organisations will return to this issue.

It is the case—I have experienced this on my travels in some parts of the Commonwealth—that some countries question the continuing role of the Judicial Committee of the Privy Council in dealing with appeals from sovereign jurisdictions elsewhere. I believe that even the Judicial Committee will probably want to consider its own future in the longer term.

I said in my opening speech that I had never met the Judicial Committee of the Privy Council. I should have made it clear that I have met many members of the Judicial Committee. Indeed, we were glad to hear from some in this debate. In particular, like others, I pay tribute to the maiden speech of the noble and learned Lord, Lord Hutton, who is among the several who have made criticisms of the proposals for the nominating committee. It was an initial attempt to put forward proposals to form the basis of discussions, but we must take on board the criticisms that have been made of the nominating procedure. We shall give further thought to that before resurrecting these proposals on any future occasion.

The noble and learned Lord, Lord Clyde, mentioned lack of premises, but I see no reason why the new constitutional court could not simply use the facilities which already exist for the Judicial Committee of the Privy Council.

Perhaps I may make three final points. The noble and learned Lord the Lord Chancellor will have noticed that I did not append my name to Amendment No. 196. That was because, like the noble Lord, Lord Hogg, I believe in keeping in with the Lord Chancellor! Nevertheless, my noble friend Lord Lester put forward a perfectly good argument for further discussion of the role of the Lord Chancellor in these proceedings.

Perhaps I may make a more serious point. One point that has not really been answered was that made by the noble and learned Lord, Lord Cooke, who asked why, in continuing to use the existing procedures, we should exclude judges from the Commonwealth, as the Bill suggests. I believe that we should revisit that point later. It may be helpful if I indicate to the House that we have already decided to table an amendment to Clause 96 to allow us to concentrate on that issue, perhaps next week when we reach that point in the Bill.

Finally, I only hope that as the noble and learned Lord the Lord Chancellor used the phrase "for the time being", he might agree that the time has come when perhaps he and others involved should consult senior judges and representatives of the profession in all four parts of the United Kingdom about long-term constitutional developments. This debate should be seen simply as a curtain-raiser to what should be a serious ongoing debate about the future nature of our constitutional arrangements. The debate has amply served its purpose. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton

My Lords, I beg to move that further consideration on Report be now adjourned until not before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.

Forward to