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Lord Mackay of Drumadoon moved Amendment No. 3:

Page 1, line 15, leave out subsection (4).

The noble and learned Lord said: This is a small drafting amendment which seeks to remove from the Bill what I believe to be an unnecessary provision. At the outset, perhaps I may say with the sense of modesty which characterises members of the Mackay clan in your Lordships' House that this is not my own idea. The amendment is in identical terms to an amendment moved at Report stage on the Government of Wales Bill on 1st July by the noble and learned Lord, Lord Simon of Glaisdale, who I am happy to see is in his place this evening.

Although the legal nature of the assembly for Wales is of a different character from that which the Scottish parliament will have, I believe that the same principle applies; namely, that the statute book should not include any provisions that are unnecessary and merely state the law as it would be. The amendment is focused on subsection (4) of Clause 1, which provides:

When one considers the provisions of Clause 8(4) of the Bill, it is obvious that the Scottish parliament is intended to be able to function competently even though there is a vacancy among the constituency members. That subsection provides that a by-election to fill a constituency vacancy should not be held if the latest date for holding the poll would fall within the period of three months ending with the day on which the poll at the next ordinary general election would take place. It is clear from that provision that such a vacancy could exist for up to three months prior to a general election.

It is inconceivable that this Parliament would intend that the Scottish parliament would be powerless to act competently during such a three-month period. Indeed, I would go further. It is inconceivable that Parliament would intend that the Scottish parliament would be afflicted by some form of legal paralysis each and every time a vacancy in its membership might occur. It is equally inconceivable that any court would seriously entertain any such proposition. For those reasons,

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I move the amendment and I look forward to such support as I get for it from the noble and learned Lord, Lord Simon of Glaisdale. I beg to move.

Lord Simon of Glaisdale: Without hesitation, I support the amendment. The subsection is utterly unnecessary and, being unnecessary, it should be removed. An unnecessary provision not only clogs up the statute book but is liable to give rise to undesirable arguments, sometimes very far-fetched.

When I moved a similar amendment to the Government of Wales Bill, I introduced it by describing to your Lordships, and with a statistical basis, how the statute book had swelled inexorably ever since the Renton Committee on the preparation of legislation had described it as already far too prolix. That being so, we should make every effort we can to remove unnecessary provisions.

I take it--perhaps the noble and learned Lord the Lord Advocate will correct me if I am wrong--that this being a Westminster statute, it will fall to be construed by English law, although I cannot imagine that the law in Scotland is any different. By English law, I have no hesitation in saying that the provision is entirely unnecessary. If it were removed, exactly the same events would occur. If there were a vacancy, the parliament would still continue to operate, just as the House of Commons continues to operate, notwithstanding a by-election or the death of a Member, or your Lordships' House, for that matter, notwithstanding a disqualification of a Member or his absence.

The only difference I can see from the Government of Wales Bill is that the Welsh assembly was specifically called a body corporate; in other words, a corporation aggregate. It is a fundamental feature of a corporation aggregate that a decision of the majority binds the whole body. That being so, a vacancy or absence of a member cannot make any difference. The majority decision binds.

So if this provision is unnecessary, I wholly support the amendment of the noble and learned Lord that we should remove it, and with thanks to have at least got rid of a few words from the over-prolix statute book.

Lord Renton: I, too, support the amendment. I am very grateful to the noble and learned Lord, Lord Simon of Glaisdale, for what he has said, although I feel obliged just to modify one of his arguments. He said that this would be interpreted under English law. With deep respect, I say to him that this is a Bill of the Parliament of the United Kingdom and would be interpreted according to the law of the United Kingdom, whatever that may be. If it were to be interpreted according to a law of Scotland, it would not worry me very much because I think that the Scottish courts are so wise that they would realise that the proceedings of the Scottish parliament could not possibly be held up merely because a by-election was pending.

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Whichever view one takes with regard to the interpretation of this subsection, I would say that it is unnecessary. I am very glad that the amendment has been moved.

Lord Steel of Aikwood: Perhaps I may indicate in one sentence that it gives me great pleasure on this occasion to indicate support from these Benches for the Mackay twins and their amendment.

The Lord Advocate (Lord Hardie): As the noble and learned Lord, Lord Mackay of Drumadoon, said, this amendment is similar to the one tabled by the noble and learned Lord, Lord Simon of Glaisdale, at Report stage in the Government of Wales Bill on 1st July. The report appears in Hansard at cols. 671 to 674.

Members of the Committee have suggested that this provision is unnecessary, as did the noble and learned Lord, Lord Simon of Glaisdale on the previous occasion.

Lord Simon of Glaisdale: Does the noble and learned Lord contest that, if this provision were removed, legally exactly the same situation would obtain?

Lord Hardie: I shall come to that. The short answer is: yes, I do contest that. Perhaps I may deal with the point that I was about to make. I share the desire of Members of the Committee for legislative economy, but do not agree that it would be appropriate to omit this provision on this occasion. As my noble and learned friend the Solicitor-General explained at Report stage in the Government of Wales Bill, and as Members of the Committee are aware, this provision has considerable precedent. I would not argue--and nor did my noble and learned friend the Solicitor-General--that we should include the provision simply because in the past we have always done so. However, I believe it is appropriate in this case to have the provision.

By omitting the provision on this occasion we would run a risk of giving someone the opportunity of challenging the parliament's actions by calling into question the validity of its actions because of a vacancy in its membership. That is particularly so, given that the argument to the effect that the provision is unnecessary, was, as I understand it, on the previous occasion based on the law of corporations aggregate.

In this case the Scottish parliament is not declared to be a body corporate, as is the case in Clause 1(2) of the Government of Wales Bill. Indeed, Members of the Committee will see, in reference to the Bill, that it is clear that the parliament is not a body corporate because Clause 20 makes provision for a particular body corporate to act--

Lord Simon of Glaisdale: If it is not a body corporate, is not the nearest analogy the House of Commons?

Lord Hardie: As I was explaining, it is not a body corporate because Clause 20 specifically sets up a body

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corporate entitled "The Scottish Parliamentary Corporate Body", which is obliged to carry out certain functions on behalf of the parliament. The corporate body comprises the presiding officer and four members of the parliament appointed in accordance with standing orders. One of the functions of the body corporate is to take proceedings by or on behalf of the parliament and to defend proceedings instituted against the parliament. It is my position that the parliament itself is an unincorporated body. It would be for the unincorporated association to regulate its own proceedings.

As regards this Bill, we are anxious to ensure that there is never any question of a challenge to the proceedings of the parliament by virtue of a vacancy arising. In answer to the point raised by the noble and learned Lord, Lord Simon of Glaisdale, it is my understanding that the Westminster Parliament is a corporation sole.

Baroness Carnegy of Lour: What does that mean?

7.15 p.m.

Lord Hardie: The position appears to be that it is a parliament regulated by English law. In dealing with the question of the law which would apply to the interpretation of the legislation once it is enacted, I respectfully agree with the noble Lord, Lord Renton, that it would be interpreted in accordance with the law of that part of the United Kingdom where the issue was raised. If it were raised in Scotland, it would be determined in accordance with Scots law; if it were raised in England, it would be interpreted according to English law.

Clause 1(4) of the Bill puts the question of the validity of proceedings beyond any doubt, and that can be no bad thing. In those circumstances, I urge the noble Lord to withdraw this amendment.

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