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Lord Meston: Does it follow from what the noble and learned Lord has been saying, without committing the Government in any way, that it is likely that the Scottish parliament, the Welsh assembly and whatever may arise in Northern Ireland will be given a procedure similar to that given by Clause 12 to effect a fast-track remedy of any incompatibility?

The Lord Chancellor: I do not desire to go further than I have in fairly responding to questions which go more to the content of the devolution Bills than they go to the issue of whether this clause shall stand part.

Lord Mackay of Drumadoon: I regret that the noble and learned Lord has not been able to give the

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undertaking that I sought. It was not an undertaking as to when the devolution Bills will be published; it was an undertaking that your Lordships' House will not be passed to the Report stage of this Bill until those major constitutional Bills have been seen.

I fully understand the legal logic of the position, as explained by the noble and learned Lord tonight, as I fully understood the logic of what was said by the noble Lord, Lord Williams of Mostyn, on Second Reading. At paragraph 2.13 of the White Paper the Government indicate that one of the reasons they have chosen such a route in relation to Acts of this Parliament is that to do otherwise would be likely on occasions to draw the judiciary into serious conflict with Parliament. As a result, there is a concern in Scotland, which is shared by lawyers and non-lawyers alike, that the man on the street will not fully understand why Scottish judges have the right to strike down Acts of the Scottish parliament but not Acts of this Parliament.

The situation will be accentuated when Scottish courts come to consider statutory provisions which have originated in this House as a section of an Act of this Parliament and have been amended by an Act of the Scottish parliament so that the statutory provision under scrutiny will be partly passed by this Parliament and partly passed by the Scottish parliament. As I understand the legal logic, the Scottish courts will have the right to strike down part of the section but no such right in relation to the other part--

Lord Lester of Herne Hill: I am grateful to the noble and learned Lord for giving way. From the way in which he is developing his argument, I am not clear whether the position of his party is that the Scottish parliament should exercise sovereignty in the same way as the Westminster Parliament so that its legislative Acts will be beyond judicial scrutiny where they breach the international obligations imposed on the United Kingdom as a whole. If that is not his position I do not follow the conclusion which he is arguing towards.

Lord Mackay of Drumadoon: The noble Lord will forgive me if, like the noble and learned Lord the Lord Chancellor, I do not anticipate what is in the devolution Bill. I wish to see the devolution Bill before this Bill moves towards the next stage of consideration in this Chamber. On any view, this Bill is a major piece of constitutional legislation. Indeed, at a dinner I attended last week I heard the noble and learned Lord, Lord Rodger of Earlsferry, saying that in his opinion this Bill was likely to have a greater impact on the Scottish courts, at least in the first few years, than the devolution Bill. If he is correct in that assessment, it is incumbent upon your Lordships to consider the matter.

The noble Lord, Lord Lester, referred to the Scottish courts as being somewhat behind their English counterparts in these matters. I venture to suggest that some people in Scotland might take the view that there was a measure of value in being slightly behind and that it would be wrong to criticise different attitudes in Scotland, particularly when Scotland is about to be faced with major constitutional legislation. On further reflection, it may be that the means by which it is

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decided when Report stage is to take place is through the usual channels rather than seeking to test the opinion of the Committee on a matter of this importance. On that understanding, I should like to make it extremely clear that I am disappointed that the noble and learned Lord the Lord Chancellor has not been able to give the undertaking that I seek, and I beg leave to withdraw my opposition to the Question.

Lord Campbell of Alloway: In view of the recent intervention of the noble Lord, Lord Lester of Herne Hill, whatever may be the policy of the party to which I adhere, it is wholly irrelevant to the question we are discussing. It goes far beyond that. It is a matter of substance that warrants sympathetic consideration.

Clause 3 agreed to.

Clause 4 [Declaration of incompatibility]:

[Amendment No. 18 not moved.]

9.15 p.m.

Lord Campbell of Alloway moved Amendment No. 19:


Page 2, line 36, leave out ("primary").

The noble Lord said: I beg to move Amendment No. 19 and to speak to Amendment No. 21 which is grouped with it, and which I shall move formally in due course.

I shall also refer to Amendment No. 73 to Clause 10(1)(a), which will not be debated today but which is triggered by these amendments to Clause 4. At Second Reading the noble Lord, Lord Williams of Mostyn, asked my noble friend Lord Henley a fairly reasonable question as to where we stood on policy. He did not receive an entirely categoric reply and assuredly I, on the third row of these Back Benches, am not in the position to give one. However, I think that the noble Lord, Lord Williams, is entitled to know, as indeed is the noble and learned Lord the Lord Chancellor, where I personally stand before I address your Lordships on what to me is a matter of considerable consequence.

I stand behind the principle of incorporation, as referred to at page 35 of the manifesto and as expressed by the noble and learned Lord the Lord Chancellor today. That is where I stand. But the means proposed of remedial action under Clauses 10 to 12, triggered by Clause 4, are utterly rejected as a novel, unnecessary and unconstitutional fast-track procedure which any authoritarian government might wish to resolve.

It is not the intention to pre-empt discussion on these amendments to Clauses 10 to 12 or as to whether those clauses stand part. However, Amendment No. 73 to Clauses 10 to 12 lies at the heart of the discussion of these amendments which I move today. It is very short; it is in plain English and therefore obviously defective; and has been drafted by me. If your Lordships would allow me, it should read as follows:


    "Page 6, line 16, leave out subsections (2) to (5) and insert--


    ('() If a Minister of the Crown considers that, in order to remove incompatibility it is appropriate that legislation should be amended, he may--


    (a) as regards primary legislation, introduce an amendment bill in either House of Parliament; and

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    (b) as regards subordinate legislation, make a draft order containing the proposed amendments, which order shall be laid before Parliament and subject to approval by resolution of each House.')"

Assimilation of a convention into English law is no simple, straightforward process to be achieved by judicial declaration without resort to the parliamentary process, a process as it applies respectively to primary and secondary legislation.

I turn to the amendments. Amendment No. 19, which, again, is produced in fairly simple English, and again is probably equally effective, states "leave out ('primary')". The effect of that is quite simply, if one looks at Clause 4, to say:


    "Subsection (2) applies in any proceedings in which a court determines whether a provision of legislation is compatible with one or more of the Convention rights".

That means primary or secondary legislation.

Amendment No. 21 says,


    "leave out subsections (3) and (4)".

Thus, I read on:


    "If the court is satisfied that the provision is incompatible with one or more of the Convention rights, it may make a declaration of that incompatibility".

Could anything be simpler? It reflects the extant position by which we deal with such matters, by convention for I do not know how long but by tradition for about 300 years; and it has not served us too badly.

I ask your Lordships to accept that those amendments to Clause 4, to which I have spoken, do not foreclose in any way on the remedial action as proposed under Clauses 10 to 12, with which I most heartily disagree. But they afford a measure of flexibility to enable amendments to Clauses 10 to 12, including the amendment in my name to which I have referred--Amendment No. 73--to be debated on their merits.

As to that, the Committee has the advice of the Select Committee at paragraphs 22 to 25 of the 6th report in context with the Henry VIII taint to the proposed procedure. The Committee may wish to consider in context with these amendments to which I speak whether it really is acceptable that, on the basis of mere judicial declaration, it is appropriate that on the say-so of a Minister of the Crown, primary legislation should be amended by order in council--because, if I am not mistaken, that is what is proposed--and that subsidiary legislation should be amended without the affirmation of both Houses of Parliament. I always keep the Labour manifesto with me; I have it on the seat here. I always read it for every debate in which I speak because it is the basis of policy. Policy is a matter for the Government and not for the Opposition. I always start with the Labour policy in the manifesto and then--I do not want to be unkind about it--see where we get to.

There was no reference in the manifesto, at page 35, as to these proposed means of implementation of the principle under Clauses 4, 10 and 12. It is a novel regime which is totally in violation of the doctrine of the separation of powers as between Parliament and the judiciary. There seems to be a sort of impression that a manifesto confers a blank cheque. However, it does not. It confers no blank cheque on our elected representatives

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to change the constitution unless such means of change, and means of implementation of the principle, have been put before the electorate, which they have not. Therefore, as regards this provision or my Amendment No. 73--which I shall have considerably more to say about when we reach it than I have today, unless we are discussing it at about this time of night--the Salisbury Convention cannot apply.

In conclusion, it is of crucial consequence to understand that these amendments to Clause 4, which affect remedial action under Clauses 10 to 12, are in a sense inconsistent with Clauses 10 to 12. The point is that whatever the position of inconsistency may be, that should not be prayed in aid by retaining Clause 4 as it stands, which inhibits or could pre-empt the discussion on subsequent amendments. Such is the spirit in which I move the amendment. I beg to move.


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