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Lord Simon of Glaisdale: This clause departs from ordinary rules of construction, and to my mind does so rightly. However, I do not agree with my noble and learned friend in his objection to the very use of the word "reasonable". That word is used every day in the courts and is a perfectly well understood standard. It is the standard of the ordinary man in the street. I believe that the reason that the noble Lord, Lord Kingsland, prefers "reasonable" to "possible" is that the latter may be taken to include what is fanciful, but I do not believe that it is necessary for that purpose. Judges do not take account of fanciful considerations. I prefer "reasonably possible". I do not suppose that my noble and learned friend will for a moment consider that because it interferes with the language that is written down in tablets of stone.

As I understand it, the ordinary rule is that the courts endeavour to get at the meaning of the words that Parliament has used, not the words that Parliament meant to use. That was the Nazi rule of construction in the name of the Reich. In a statute like this, which is meant for ordinary people, first they try to find the ordinary sense of the word. That is known as the golden rule of interpretation. They do that by considering the ordinary meaning of the words in their context. Their context includes the objective of the statute. But sometimes the ordinary meaning even in context leads to something unjust, anomalous, contradictory or ambiguous. The courts then say that Parliament cannot have meant such a thing.

They look then at secondary meanings and have various rules to help them. One rule which is relevant to this clause is that they endeavour to find a secondary meaning which accords with international law. But this provision goes further. It says that they must look not only for a secondary meaning but for a possible meaning. I apprehend that the noble Lord, Lord Kingsland, fears that that may lead to a fanciful meaning. I do not believe that it would. I believe that the words will be construed by the courts as meaning "reasonably possible". Even though any change in the wording rises in the gorge of my noble and learned friend, I believe that that is how judges will interpret those words. It means that the provision goes further than the existing rules of interpretation, but so be it. My noble and learned friend has given reasons why that should be so, and I presume to agree with them.

Lord Campbell of Alloway: If this is to be interpreted by the Bench as "reasonably possible", as will obviously be the case, what are we worrying about?

Lord Kingsland: I am sorry that the noble and learned Lord fails to understand the aim of this amendment. I thought that my opening explanation had

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made it crystal clear. The intention was to find out whether or not the Bill proposed a form of interpretation by the judges which went beyond the common law rules. It is quite clear both from the reply of the noble and learned Lord and the subsequent debate that that is what is proposed. I am perfectly happy to learn that and will reflect upon it. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 17:


Page 2, leave out lines 29 to 34.

The noble and learned Lord said: I believe that my noble and learned friend dealt with this matter in answer to an earlier debate. In those circumstances, I do not intend to move the amendment.

[Amendment No.17 not moved.]

On Question, Whether Clause 3 shall stand part of the Bill?

Lord Mackay of Drumadoon: We have given notice of our intention to oppose this Question for the sole purpose of seeking from the Government an undertaking that, before the Bill reaches Report stage, the devolution Bills for Scotland and Wales are published. That will enable your Lordships to scrutinise the provisions of this Bill against the provisions of those two major constitutional Bills that we await with interest.

This evening I have listened with a measure of fascination to the noble and learned Lord the Lord Chancellor explaining the scheme of the Bill and the interpretative approach. I shall read again tomorrow with interest what he said. He observed at one stage that that may be the reason that the Bill has been welcomed by the higher judiciary. I am sorry to disappoint the noble and learned Lord the Lord Chancellor. It may be that the higher judiciary north of the Border are not quite so fulsome in their welcome of this legislation, as may be evidenced by the speech made at Second Reading by the noble and learned Lord, Lord McCluskey. One possible explanation for that is that when the Scottish judges scrutinise Acts of the Scottish parliament against the provisions of the Bill they will require to follow a different approach from that in relation to Acts of this Parliament.

For those reasons, I believe that it is essential that we have this undertaking. I anticipate no difficulty in it being given. Having heard it, I shall be happy to withdraw opposition to the Motion.

9 p.m.

The Lord Chancellor: I am not in a position to give any undertaking about the timing of the publication of the devolution Bill.

Baroness Carnegy of Lour: In view of the comment in the White Paper that the approach will be different in Scotland, it seems impossible that we should pass this legislation through this House without knowing what

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that difference is. As I understand it, there is no mention of those differences in the Bill at present. Some assurance would surely be essential to us.

Lord Campbell of Alloway: Although I am not qualified in Scots law, I am a Scot and have interests in Scotland. I wholly support the objections made by my noble friends. I beg that they be met, answered and taken seriously.

Lord Lester of Herne Hill: I do not understand the problem. It is true that the Scottish courts have so far been somewhat behind the English courts in giving domestic effect to the European Convention on Human Rights. One looks in vain in Scottish jurisprudence for as strong an interpretation of the convention as has been given by the English courts. But that is not the point of the Question, although it is fair to say that one effect of the Bill will be to ensure an even application of the convention domestically throughout the whole kingdom. I welcome that since these international obligations apply throughout the territory of the United Kingdom.

However, what I do not understand is this. When we have a devolved Scottish parliament, as was made clear during the Second Reading debate, that parliament, any Welsh senate, English regional assembly, Northern Irish parliament or other public authority exercising legislative or executive powers as a subordinate body will be bound as a public authority by the convention, both under international law and this Bill when it becomes a statute. Our courts, north and south of the Border will have the duty of ensuring full compliance by all subordinate legislative and executive bodies with the requirements of the convention. That is wholly unaffected by the devolution legislation since whatever form it takes we can be completely sure that any Scottish parliament will have to obey the international legal obligations that are binding already in international law and will become binding in domestic law under the Bill. Therefore I fail to perceive any further problem which should give rise to difficulty under Clause 3 or any other provision of the Bill.

The Lord Chancellor: Perhaps I may--

Baroness Carnegy of Lour: I am grateful to the noble and learned Lord the Lord Chancellor. As a humble layman I probably should not intervene. However, I refer the noble and learned Lord to paragraphs 2.20 and 2.21 of the White Paper. They do not describe the situation such as was described by the noble Lord, Lord Lester of Herne Hill. The Scottish parliament will be a legislative body. If the White Paper is to be followed, it will produce legislation which will become law by ensuring that it is ultra vires. Therefore it has a different status to the Westminster Parliament.

I did not dare speak at Second Reading. I had thought that this issue would be amplified by everyone, but it was not. I was anxious about it. I wish to know--I am sure many distinguished lawyers in Scotland want to know--exactly how this will be achieved in the devolution Bill.

The Lord Chancellor: I was about to come to paragraphs 2.20 and 2.21 of the White Paper when I

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gave way to the noble Baroness who, as a layman, should never be inhibited in the presence of lawyers and who, in my long experience of her, never is.

The position is this. I am relying of course on the White Paper. I am not anticipating the provisions of the Bill which is not yet published. Nor am I suggesting or implying that there will be any departure in principle by the Bill from the White Paper. As regards the issues that we are addressing in Committee this evening, in relation to the European convention the powers of the courts in Scotland will be exactly the same as the powers of the English courts. That is what one would expect. All courts, whether Scottish or English, will be required to interpret the legislation in a way which, so far as possible, is compatible with the convention. If a provision is found to be incompatible with the convention, just as the courts in England at the relevant high level will be enabled to make a declaration of incompatibility, so also will the Scots courts, except that they will call it a declarator of incompatibility--and good luck to them! In Scotland it is a declarator. Exactly the same applies in Scotland as in England so far as concerns this Bill.

We now move to an entirely separate question: whether or not the Scottish parliament, if it acts incompatibly with the European convention, will act ultra vires. One of two views would have been possible. One could equate it with the English, or Westminster, Parliament and take the view that to provide a remedy for a court-made declaration of incompatibility should be for the Scottish parliament. That is the view that has been taken for the Westminster Parliament.

However, the Scottish parliament will exercise devolved powers. It is therefore well within the entitlement of the United Kingdom Parliament, when devolving powers to Scotland, to hold that any Act of the Scottish parliament which is incompatible with the convention is ultra vires. The Scottish parliament is not sovereign in the sense that the Westminster Parliament is. As the noble Baroness knows, having read paragraph 2.21 of the White Paper, compatibility with the convention is heralded by that paragraph as a vires issue and therefore that is what she should anticipate the Bill will provide when it is published. I cannot undertake that it will be published before the Report stage of this Bill and I do not do so. There is every expectation that it will be published before the year end, on time.


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