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Before Clause 108, insert the following new clause--

("Privilege of Assembly

Application of Bill of Rights and Claim of Right to Assembly proceedings

.--(1) For the avoidance of doubt, the provisions of Article IX of the Bill of Rights 1689 and of that part of Article XXV of the Claim of Right Act 1689 which secures freedom of speech and debate to members of Parliament shall apply to the proceedings of the Assembly; and those Articles shall be construed accordingly.
(2) For the purposes of subsection (1) above--
(a) proceedings of the Assembly shall not be questioned on grounds of non-conformity with Assembly standing orders except where such non-conformity raises a devolution issue within the meaning of Schedule 7 to this Act, and
(b) speeches made in the Assembly shall be treated as having the same status in law in relation to proceedings of the Assembly as speeches made in Parliament have in relation to proceedings in Parliament.").

The noble and learned Lord said: I begin by apologising for visiting yet another Lord Mackay into deliberations on the Bill, particularly when in the same breath I indicate that in speaking to this and subsequent amendments I shall make reference to the Scotland Bill. I believe that there are similar threads between them, a view which I suspect is shared by the noble and learned Lord the Lord Advocate, who is in the Chamber and I suspect somewhat interested in what I have to say.

The first amendment raises the issue of according to the assembly the privilege that attends to what is said in this Parliament when cases are raised in courts throughout the United Kingdom. It seeks to provide that the provisions of Article IX of the Bill of Rights 1689 and the Scottish equivalent of that--namely, Article XXV of the Claim of Right Act 1689, which secures freedom of speech and debate to Members of Parliament,--apply to the proceedings of the assembly. It seeks to elaborate on the practical effects of that in subsection (2).

It may be instructive to bear in mind what lies behind the privilege that is incorporated in Article IX of the Bill of Rights. It is the need to ensure that as far as possible Members of this Parliament and witnesses who appear before the committees of this Parliament are able to speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by the privilege is to ensure that a Member of either House, or a witness appearing before a committee of either House, when he speaks, is not inhibited from speaking fully and freely.

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That principle, coupled with the wider principle that the courts on the one hand and Parliament on the other are both astute to recognise their respective constitutional roles, means that the courts will not allow any challenge to be made to what has been said or done within the walls of Parliament in performance of Parliament's legislative function.

In tabling the amendment, I wish to make it clear that it is not intended in any way to prevent the executive functions which will be discharged by the assembly or any committee of the assembly or any individual on behalf of the assembly being appealed to the courts or made the subject of judicial review proceedings to any lesser extent than can happen at present. Nor, indeed, is the amendment designed to exclude any reference in court proceedings to speeches made either in this House or in another place when on the authority of the case of Pepper v. Hart it is appropriate that such reference should be made.

It is right that I should publicly acknowledge the assistance that I have had in framing the amendment from senior officials within the Public Bill Office. The amendment is designed to have several purposes. First, it is designed to encourage free speech in accordance with the principles as I have explained them, free speech not only by members of the assembly and in particular by the first secretary and the assembly secretary but also by those who will be called before the committees of the assembly to contribute to the discharge of its functions.

Secondly, it seeks to extend to the assembly and encourage it to recognise the principle which currently guides the relationship between this Parliament and the courts. Again, I have already made reference to it; namely, the recognition and respect that the one has for the other's constitutional role.

Thirdly, the intention is to discourage the number of occasions on which legal proceedings are raised for political purposes. Those of us who have practised in the courts know that from time to time, whether to do with the affairs of local authorities, where it happens quite frequently, or to do with the conduct of referendums, where it happens less frequently, actions are raised for a political purpose; that is, to draw attention to particular political causes, to attract the media to the court proceedings and then, once the necessary publicity has been received and the political mileage has been made, the proceedings are abandoned in the event that they prove to be unsuccessful, which in most instances they do.

As I construe this Bill and the provisions of the Scotland Bill, it would be possible for court action to be raised with a view to preventing the assembly proceeding to deal with a certain piece of business, interrupting the assembly during the course of proceedings or seeking to quash the assembly's decisions when they are concerned with the approval of subordinate legislation. Whether it be done by injunction proceedings in England and Wales or interdict proceedings in Scotland, technically speaking, it would be competent to do so. That is not the situation which applies to proceedings in this Parliament. Therefore, a third purpose is to discourage the number

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of occasions on which disgruntled politicians, of whatever party, have recourse to the court to try to frustrate the will of the elected members.

The fourth purpose is to exclude the possibility of parties and their respective lawyers trawling the speeches made by assembly members with a view to seeing whether anything said can support judicial review proceedings which may be proceeding on the grounds of error of law, failure to take account of a relevant consideration or whatever, or equally to prevent such attempts to be founded on irregularities of procedure. All those matters are commonplace when judicial review of the actions of local authorities takes place.

I accept fully that in the setting up of a devolved assembly such as that proposed for Wales and the devolved parliament as is proposed for Scotland it is necessary to have in place judicial procedures to resolve constitutional disputes that arise in relation to the issue of vires. Equally, I believe firmly that it is not in the interests of the success of either the assembly of Wales or the parliament of Scotland to have recourse to the court unless it is strictly necessary, and even then such recourse should be on as limited grounds as possible.

I believe that this is an important issue and I very much look forward to a constructive response from the Minister.

Lord Williams of Mostyn: We are discussing important issues, but in many ways it is a question of deja vu, although I am not sure what the Welsh equivalent of that phrase is and I cannot draw on the advice of the noble Lord, Lord Elis-Thomas, because he is not in the Chamber at present. However, we discussed these issues at some length on an earlier Committee day. Indeed, the noble Lord, Lord Thomas of Gresford, was good enough to contribute his proposition; namely, that one needs full, fearless and frank debate in the assembly. We dealt with such matters by way of our amendments to Clause 78, which I believe were generally welcomed by Members on all sides of the Committee.

There are a number of propositions here, but I believe that they have been overtaken by our amendments to Clause 78. In any event, I do not think that some of them could properly apply to the Welsh assembly. The amendment starts with the words;

    "For the avoidance of doubt".

Whenever I hear those words, I feel a little like Field Marshal Goering and reach for my revolver. There is no doubt here. On any legitimate construction of Article IX of the Bill of Rights, there is no possibility of it applying to the Welsh assembly because it relates to the Parliament at Westminster. There is no doubt about that. The Claim of Right Act 1689--an Act of the former Scottish Parliament--could not, with the utmost ingenuity, even of members of the Wales and Chester circuit, possibly apply to the Welsh assembly.

I take note of the points behind the amendments. I hope that I am not being impolite, but I believe that they were designed for a situation that has been overtaken by events. We amended Clause 78 by drawing

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on provisions in the Defamation Act 1996. The real protection in respect of free, fearless and frank discussion, to use the noble Lord's phrase, is immunity from actions for defamation. Indeed, as I said, we discussed the matter on an earlier day of the Committee stage. We have already provided for that situation to general agreement from all sides of the Committee.

I should point out to the Committee that Members of Parliament cannot be criminally liable for statements made in proceedings in Parliament. That was considered in the case of Duncan Sandys in 1938. It was generally agreed there that the Member of Parliament in question could not have been convicted of a breach of the Official Secrets Act for information disclosed in the course of proceedings in Parliament. Therefore, there is the effective immunity of a Member of Parliament in Westminster from criminal prosecution, but of course the other place has internal sanctions for breach of its own rules, which can include imprisonment.

As far as concerns the assembly, we provided last week that standing orders made for preserving order in the assembly must include provision for preventing conduct which would constitute a criminal offence. That, of course, would include the power to restrain the making of statements which, if made, would constitute a criminal offence. If those standing orders were ignored and a criminal offence were then committed, we do not see why the offending member should be immune from prosecution. There is no power in the assembly for it to imprison its own member--a power which does obtain in another place.

We are quite certain that the amendments we moved last week will give adequate and full protection to the freedom of speech of assembly members. Therefore, trying to apply Article IX of the Bill of Rights to the proceedings of the assembly is neither required nor appropriate.

I am most grateful to the noble and learned Lord because he dealt with a question which is encompassed in subsection (2)(a) of his amendment. As he explained, that seeks to apply to proceedings of the assembly the rule excluding review by any court of the observance by either House of its internal procedures and practices in the discharge of its business. That is subject to the exemption--namely, the "devolution issue"--which I believe the noble and learned Lord described as the vires question. I entirely agree with him.

The noble and learned Lord's amendment seeks to apply to a body which is not a parliament principles which have been developed in the context of this Parliament. It is well known that no court will entertain a question which impugns the internal workings of another place. However, it will be very odd indeed if, having accepted the amendments which we discussed at some length last week, Members of the Committee were now in effect to provide that non-observance of standing orders--and I stress this point--even those specifically required by the Bill, could never allow a court to hold assembly action invalid. I respectfully suggest that that would be nonsense. The court would be entitled to examine the question of whether standing orders which had been introduced on a mandatory basis in the Bill

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and which had been breached could in fact result in a finding of invalidity and the granting of a remedy. That is a discretion open to the court.

The final matter which the noble and learned Lord again helpfully outlined relates to Pepper v. Hart. It is well known that in some circumstances the courts can look at the legislative history of a statute when construing its provisions. That was held not to be impeaching or questioning proceedings in Parliament which would have been contrary to the Bill of Rights. The rule in Pepper v. Hart will continue to apply to legislation going through Parliament which confers order-making powers on the assembly. Statements made in the course of those proceedings could be used in the Pepper v. Hart context.

Whether statements made in the assembly in the course of its order-making procedures could be relied upon is a different question. As I said last week, the assembly's powers are to make subordinate legislation only. When your Lordships' House decided Pepper v. Hart it paid regard to its earlier decision in Pickstone v. Freemans, which concluded that it was permissible to construe subordinate legislation having regard to the legislative history. We believe it would be for the courts to decide whether the same approach could be taken in relation to proceedings in the National Assembly for Wales. The cases are there and the courts can address these issues.

I summarise. Article IX of the Bill of Rights could not properly apply to the assembly. Article XXV of the Claim of Right Act 1689, which is a peculiarly Scottish Act, could not conceivably apply to the assembly. Freedom of speech in debate is already secured by the amendments we discussed and passed last week. I hope that the noble and learned Lord will withdraw his proposed new subsection (2)(a) on the basis of my explanation. As regards his proposed new subsection (2)(b), I hope I have given him the assurances that he sought in the context of Pepper v. Hart.

9.30 p.m.

Lord Hooson: I hope that the noble Lord will deal with the following point. I understood that the noble and learned Lord, Lord Mackay of Drumadoon, also suggested that action could be taken in the courts to seek an injunction to prevent the Welsh assembly from considering certain points. It had not occurred to me that that could be done. I do not think that the noble Lord dealt specifically with that point.

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