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Lord Falconer of Thoroton moved Amendment No. 214A:

Page 90, line 42, at end insert--
("( ) In this Schedule "civil proceedings" means any proceedings other than criminal proceedings.").

The noble and learned Lord said: With this, I should like to speak to Amendments Nos. 217A and 241A, which are also drafting amendments. Amendment No. 214A provides a definition for the purposes of Schedule 7. Amendment No. 217A is a drafting simplification, and Amendment No. 241A brings the Welsh Bill into line with the Scottish Bill in providing--as is generally the case--that no parliamentary procedure is to apply with respect to rules to regulate proceedings before the Judicial Committee.

On Question, amendment agreed to.

[Amendments Nos. 215 to 217 not moved.]

Lord Falconer of Thoroton moved Amendment No. 217A:

Page 91, line 41, leave out ("High Court, or of the Court of Appeal") and insert ("court concerned").

The noble and learned Lord said: I have spoken to this amendment.

On Question, amendment agreed to.

[Amendments Nos. 218 to 235 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 236:

Page 94, line 10, at end insert--
("( ) Where a court or tribunal refers a devolution issue for determination under sub-paragraph (1) above, the relevant law officer making the request for such a reference shall pay all the

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costs or expenses of any parties that subsequently take part in any proceedings in the House of Lords for the determination of the devolution issue involved.").

The noble and learned Lord said: This amendment and Amendment No. 238 raise the question of the additional expense that may occur when the relevant Law Officer intervenes in proceedings before a court or tribunal and requests that the court or tribunal makes a reference. As my amendment has it, that reference would relate to the House of Lords, but I accept that reference should be to the Judicial Committee, for the determination of a devolution issue. In a similar vein, Amendment No. 238 deals with the situation where the Attorney-General or the assembly itself may be involved.

There is a concern that parties who are caught up in cases involving devolution issues, whether they are raised by the parties bringing the civil proceedings or whether they are pled as a form of defence by the defendant or defender to such proceedings, may end up having to pay a great deal more by way of legal costs and expenses than might be the case if the Law Officers did not intervene.

Any litigant who raises proceedings runs the risk of bearing some expense. However, in the early stages of devolution when certain issues fall to be resolved the proceedings are more complicated than otherwise might be the case and that motivates Law Officers to intervene. There is then an argument that as the issue will be resolved for all the citizens, whether of Wales, as in this Bill, or of Scotland, as under the Scotland Bill, the costs should be borne not by the parties originally involved in the case. That is why I tabled Amendments Nos. 236 and 238. I shall be interested to hear the Government's thinking on this important practical issue. I beg to move.

Lord Falconer of Thoroton: Amendments Nos. 236 and 238 relate to the question of costs. The Government's attitude is that the amendments are inappropriate since the principle they are seeking to achieve is contrary to the usual principle on which costs in court proceedings are determined; that is, it is in the discretion of the court. Section 15 of the Judicial Committee Act 1833 makes provision for the costs to be in the discretion of the Judicial Committee. The Law Officer can refer the matter to the Judicial Committee in one of two circumstances; either where there are already proceedings in existence, which is paragraph 30, or where there are not, which is paragraph 31. Where a devolution issue is referred to the Judicial Committee under paragraph 31, it is difficult to envisage how any party, other than the assembly or the UK Government in the guise of the Attorney-General, would be involved. I recognise that it might be possible and that other people might want to be joined.

As regards matters referred to the Judicial Committee from another court under paragraph 30, it would be for the Judicial Committee to decide how the costs of all participants should be dealt with. I can envisage the kind of points which the noble and learned Lord made about people getting caught up in complex litigation where the purpose was to resolve the point for others rather than

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for themselves. Such points might carry some weight in a costs issue in front of the Judicial Committee of the Privy Council. But, equally, there are circumstances in which the conduct of the party makes it appropriate for the Judicial Committee of the Privy Council to make awards of costs against them.

Surely, the right course in relation to all these matters is to leave it to the Judicial Committee to determine where the justice of the case lies in relation to the costs issue. That is what underlies the Government's thinking. It is the normal approach taken in relation to costs. That is why it is as it is. I hope that that explanation assists the noble and learned Lord and that he will withdraw his amendment.

Lord Mackay of Drumadoon: It certainly assists in understanding the Government's position. The problem is that normal litigation does not allow a Law Officer to intervene and, with the approval of the court, to take the case out of the lower court and march it off to the Judicial Committee.

Furthermore, I find the reasoning slightly difficult to reconcile with Amendment No. 214C, to which the Committee will turn shortly. It appears to give the court, the tribunal, somewhat of a steer to depart from the normal practice where an order under Clause 112 falls to be made. However, the purpose of the amendment was to ascertain the Government's thinking on the matter. That I have received and I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 237 to 241 not moved.]

10.30 p.m.

Lord Falconer of Thoroton moved Amendment No. 241A:

Page 94, line 48, leave out ("under this paragraph") and insert ("which makes provision falling within sub-paragraph (1)(a) or (b)").

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 112 [Power to vary retrospective decisions]:

Lord Mackay of Drumadoon moved Amendment No. 241B:

Page 56, line 28, leave out subsection (2) and insert--
("( ) In criminal proceedings, the court shall take account of and act upon any decision made under subsection (1), whether by the court itself or by a superior court, in the conduct of the criminal proceedings in which the decision has been made.
( ) In civil proceedings, the court or tribunal may, if it considers that it is in the public interest to do so, suspend the effect of the decision for such fixed period, not exceeding six months, and on such conditions, as to allow the Assembly to make any further provision of subordinate legislation as it deems appropriate.").

The noble and learned Lord said: This amendment seeks to explore, with reference to the provisions of Clause 112, what will happen in practical terms when proceedings are raised, whether they be criminal or civil proceedings, and the court or tribunal reaches a view

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that the assembly did not have the power to make a provision of subordinate legislation which figures in the case before the court or tribunal.

As the clause stands, it would authorise the court or tribunal, having reached the view that the provision of subordinate legislation is outwith the competence of the assembly, to make an order. The court would have a discretion to do so. In the first place, that order could remove a limit on any retrospective effect of the decision it had reached as to vires or, alternatively, suspend the effect of that decision for any period and on any conditions to allow the defect in the provision of subordinate legislation to be corrected by the assembly. As we were discussing earlier, the defect in the subordinate legislation could relate, for example, to a failure to follow mandatory standing orders.

The clause directs the court or tribunal that:

    "In determining whether to make an order under this section, the court or tribunal shall (among other things) have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected by the decision",

that is, the decision it had previously reached. Subsection (4) allows the Attorney-General to intervene in such proceedings if he considers it in the public interest to do so. Of course, the very nature of the devolution settlement is, as Schedule 7 makes clear, that such an issue could arise not only in courts or tribunals in England and Wales but also those in Northern Ireland or in Scotland. Therefore, in passing, one must draw attention to the fact that that would give the Attorney-General the right to intervene in proceedings in Scotland and in Northern Ireland.

I should like to look briefly at the two types of proceedings; first, criminal proceedings. If the criminal court reaches a view that a provision of subordinate legislation is ultra vires, it seems to me that that may arise in one of two contexts. One is where there is some incompetency in subordinate legislation which is involved in the criminal charge that the defendant or accused faces. Another situation might be in relation to the admissibility of some evidence on which the prosecutor sought to rely in seeking to establish guilt.

As a very recent case decided by the Appellate Committee of your Lordships' House decided--the case of Boddington v. British Transport Police--such a public law offence requires to be or can be raised as a preliminary issue, whether before the trial itself commences or possibly, if it related to the admissibility of evidence, during the conduct of the trial itself.

I have some difficulty in understanding how, in any circumstances, a criminal court could pronounce an order removing or limiting the effect of a decision it had reached; that whether the subordinate legislation underpinned the charge or related to admissibility of evidence, it would be proper to remove or limit any retrospective effect of that decision. Perhaps more important, I have some difficulty in understanding how it would be proper to suspend the proceedings for any period and on any condition to allow the defect to be corrected. I would welcome guidance from the noble and learned Lord the Solicitor-General as to how the Government envisage such a provision ever being appropriate in criminal proceedings.

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I turn now to the question of civil proceedings. What guides my thinking on the matter is the desire to limit, as far as possible, the role of the courts after the devolution Bills--for example, the Government of Wales Bill--come into force. I have a concern, which I believe will be shared by others; namely, that if the court is given this discretionary power of whether to remove or limit any retrospective effect of the decision, or, alternatively, whether to suspend the effect of the decision for a period of time, that may serve to draw the courts into political controversy from which they would do well to steer clear.

The issue which remained unresolved by the Boddington case also lies behind my concern; namely, what will be the effect in civil proceedings of a court reaching the view that a particular piece of subordinate legislation was ultra vires? Should it proceed on the basis that it ought to be treated as having been null and void from the day that it was enacted and as having no legal consequences at all, or should it subscribe to another view? The speeches in the Boddington case made it clear that that is an issue which, in so far as it currently arises, remains to be resolved. I suggest that setting devolution on the road--whether in Wales or Scotland--with that issue remaining unresolved, at least as far as concerns vires issues under these two Bills, would be transferring to the courts an issue upon which the Government ought to form a view and which they ought to bring before both this Committee and this Chamber for approval. Therefore, for those reasons, and without seeking to elaborate in any detail on the fundamental legal issue which lies behind my concern as to what may happen in civil proceedings, I beg to move.

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