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The Lord Chancellor: I shall undertake to write to the noble and learned Lord, Lord Mackay of Drumadoon, as he indicated, on the detail of his questions. However, I shall try to assist him so far as I can. I am certainly familiar with the nature of the office of Lord Lyon King of Arms. I well recall in 1987, when I had the privilege of becoming a Member of your Lordships' House, that there were discussions between two "creatures" called Garter and the Lyon as to the territorial title which I might be entitled to take.

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I certainly had a vision of those two elderly gentlemen, as they then were, discussing the odd one which had come in front of them for decision.

I understand that the Court of the Lord Lyon adjudicates on grants of heraldic arms and it also carries out other functions in relation to peerages, honours and ceremonial matters. Appeals on matters of matriculation of arms go directly to the inner house of the Court of Session, and not to the outer house, and then to the House of Lords. In a sense, that signals the seniority of the position in the hierarchy of the Court of the Lord Lyon.

However, it appears to me in this way at this stage that, although appeals lie to the inner house of the Court of Session--that is, the equivalent of the Court of Appeal in England--the Lyon Court is not a court which sets precedent in any mainstream legal sense. We would not expect it to be hearing any significant number, perhaps none, of cases raising convention issues.

By contrast, the Court of Session in Scotland and the High Court in England develop mainstream law and over time they are likely to hear a significant number of cases raising convention issues. I would require a vast amount of persuasion that any case was made out for including the Court of the Lord Lyon among those empowered to make a declaration of incompatibility.

As regards the courts of the Church of Scotland, I understand that they deal primarily with internal matters such as discipline in relation to ministers. Without in any way underestimating their importance in the Church hierarchy, clearly they are not the equivalent of the courts which are expressly empowered to make a declaration under Clause 4. Even if the amendment were restricted, as it is not, to the General Assembly of the Church of Scotland--that is, the supreme court and governing body of the Church of Scotland--I would have reservations about empowering it to make declarations of incompatibility. At present, my view is that that must be for the higher secular courts, not for domestic courts and even the highest domestic court of the Church of Scotland.

10.15 p.m.

Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord and to the noble Lord, Lord Lester. I fully accept that, in selecting places in the remoter parts of Scotland, such as Lairg and Drumadoon, Lyon has an informal role to play in discussing matters with Garter. However, he adjudicates on more significant and important issues, including the succession to Scottish peerages. The noble Lord, Lord Selkirk of Douglas, who was recently introduced to your Lordships' House, took a case to the Lyon Court two or three years ago in order to establish that, having disclaimed the peerage himself, his son and not his cousin had the right to succeed to the peerage and to inherit certain assets which went with it. Therefore, Lyon has by no means an academic or advisory jurisdiction.

As regards Church law, I doubt whether the approach of applying English public law principles mutatis mutandis would be correct. The fundamental issue

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which this amendment seeks to raise is not so much the role of the Church courts in making such declarations, but the extent to which the provisions of this Bill, the need to respect and comply with convention rights, is a duty which will be placed on the courts of the Church and on the General Assembly of the Church in passing legislation. That is certainly the issue which I would be grateful if the noble and learned Lord would address when he comes to reply. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Right of Crown to intervene]:

[Amendment No. 28 not moved]

Lord Henley moved Amendment No. 29:


Page 3, line 23, leave out from ("Crown") to end of line 24.

The noble Lord said: If I may speak very briefly to Amendment No. 29, again this is a probing amendment and I hope that the noble and learned Lord the Lord Chancellor will accept that I am entitled to make probing amendments on certain occasions. On this occasion it is a very simple question that I am asking. The subsection suggests that it may be a Minister of the Crown or a person nominated by a Minister of the Crown. The question I wish to put to the noble and learned Lord is simply why one needs to have the phrase, "a person nominated". What is wrong with a Minister of the Crown? Surely the phrase "by a Minister of the Crown" includes any person to whom he might delegate such matters. I look forward with interest to hearing the response of the noble and learned Lord the Lord Chancellor.

The Lord Chancellor: It may give pleasure to the noble Lord, Lord Henley, to be reassured by me that I regard this as an entirely genuine probing amendment. Clause 5(2) entitles a Minister of the Crown or a person nominated by a Minister of the Crown to be joined as a party to the proceedings where a court is considering making a declaration of incompatibility. The effect of this amendment would be to restrict this entitlement to a Minister of the Crown. It appears to us that it will, or may in some cases, be more appropriate for a person nominated by a Minister of the Crown rather than a Minister to be joined as a party to the proceedings.

That is true, for example, in relation to private Acts or to measures of the Church Assembly or to measures of the General Synod or to regulators of public utilities or to the Director General of Fair Trading, to name but a few. In these cases the court may be considering making a declaration of incompatibility and the appropriate person to intervene may well not be the relevant government minister, but the relevant government minister may recognise that there is another more appropriate person to represent the court in this particular legislative area, and then will so nominate. So

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the object of the provision is to enable the responsible Minister to nominate a more appropriate person to assist the court in relation to particular legislation.

Lord Henley: I thank the noble and learned Lord for that response. I am not entirely sure that I fully understood what he has said and I will look very carefully at his reply. I would have thought that the words "a Minister of the Crown" would to some extent in fact embrace someone that the Minister nominated. I appreciate that this is a purely a drafting point, and the noble and learned Lord will know far more about the drafting of legislation than I do; but surely the words "a Minister of the Crown" would embrace a person acting as his agent in these matters.

The Lord Chancellor: I will write to the noble Lord. I have to confess that I had thought that the purpose of the amendment was to suggest that the true position should be that there should never be a nomination and that a Minister of the Crown should not be entitled to nominate any person other than himself. However, the noble Lord, Lord Henley, has now intimated that he sees the purpose of his amendment not so much as to preclude nomination but rather to suggest that the entitlement in the Minister of the Crown to nominate some other person is superfluous. That is a different basis from the one on which he put the matter in the first instance. However, I shall certainly write to him.

Lord Simon of Glaisdale: Will not the nominated person frequently be a Law Officer or Treasury devil? As I understand it, apart from this Bill, they can intervene and are entitled to intervene when the prerogatives of the Crown are in question. This is a wider power, is it not?

The Lord Chancellor: Yes, it is, and it is intended to be. The explanation which I first gave to the noble Lord, Lord Henley, is the explanation as I understand it. I am not sure whether the noble and learned Lord, Lord Simon of Glaisdale, suggests that what is intended by the provision in its existing form is merely to authorise representation in court of the Minister by a Law Officer or Treasury junior. In my understanding, that is not what is intended, although no doubt it would include that. It is intended that a person other than a Minister of the Crown or lawyer acting for a Minister of the Crown could be joined as a party to the proceedings if thought by the Minister of the Crown to be more appropriate because that would offer greater assistance to the court in relation to the legislation under consideration.

Lord Henley: I suspect that I am becoming even more confused than I was at the beginning. The noble and learned Lord the Lord Chancellor seemed to imply that I moved the amendment and then started to go down a different track. I hope that I was not doing that. I was merely trying to suggest the removal of a number of words on the basis that the noble and learned Lord, Lord Simon of Glaisdale, frequently suggests: the more superfluous words we can remove from legislation, the better it is.

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At this stage, I shall look extremely carefully at what the noble and learned Lord the Lord Chancellor said and at what the noble and learned Lord, Lord Simon of Glaisdale, said. I look forward also to receiving a letter from the noble and learned Lord the Lord Chancellor explaining, as he promised me, precisely his reasoning behind those matters. With that, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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