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Lord Mackay of Drumadoon: My Lords, I am grateful to the noble and learned Lord the Solicitor-General for a very full explanation of the reasoning behind this clause. As I indicated, in the light of all the government amendments, I have no intention of pressing my amendment to a Division. I beg leave to withdraw Amendment No. 141.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 141A:


Page 56, line 9, leave out ("obligations") and insert ("obligation").

On Question, amendment agreed to.

9 Jul 1998 : Column 1418

[Amendment No. 142 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 142A and 142B:


Page 56, line 11, leave out ("the Secretary of State") and insert ("a Minister of the Crown").
Page 56, line 13, leave out ("obligations") and insert ("obligation").

On Question, amendments agreed to.

[Amendment No. 143 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 143A and 143B:


Page 56, line 15, leave out ("the Secretary of State") and insert ("a Minister of the Crown").
Page 56, line 17, leave out ("obligations") and insert ("obligation").

On Question, amendments agreed to.

[Amendment No. 144 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 144A and 144B:


Page 56, line 24, leave out ("this section") and insert ("subsection (1), (2) or (3)").
Page 56, line 27, leave out subsection (6).

On Question, amendments agreed to.

[Amendments Nos. 145 and 146 not moved.]

Lord Falconer of Thoroton moved Amendment No. 146A:


Page 56, line 29, leave out from first (""international") to ("not") in line 32 and insert ("obligation" means an international obligation of the United Kingdom other than--
(a) an obligation under Community law, or
(b) an obligation").

On Question, amendment agreed to.

[Amendments Nos. 147 and 148 not moved.]

Lord Falconer of Thoroton moved Amendment No. 148A:


Page 56, line 33, at end insert--
("(7A) A Minister of the Crown may make an order containing provision such as is specified in subsection (7B) where--
(a) an international obligation is an obligation to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise), and
(b) the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which includes the whole or part of Wales).
(7B) The provision referred to in subsection (7A) is provision for the achievement by the Assembly (in the exercise of its functions) of so much of the result to be achieved under the international obligation as is specified in the order.
(7C) The order may specify the time by which any part of the result to be achieved by the Assembly is to be achieved.
(7D) Where an order under subsection (7A) is in force in relation to an international obligation, references to the international obligation in subsections (1) to (3) are to an obligation to achieve so much of the result to be achieved under the international obligation as is specified in the order by the time or times so specified.

9 Jul 1998 : Column 1419


(7E) No order shall be made by a Minister of the Crown under subsection (2), (3) or (7A) unless he has consulted the Assembly.").

On Question, amendment agreed to.

Schedule 8 [Devolution issues]:

Lord Falconer of Thoroton moved Amendments Nos. 148B and 148C:


Page 94, line 38, leave out ("incompatible with Community law or any of the Convention rights)") and insert ("outside its powers by virtue of section 106(2) or 107(1))").
Page 94, line 42, leave out ("Community obligation which is an obligation of the Assembly)") and insert ("obligation which is an obligation of the Assembly by virtue of section 106(1) or (1E))").

On Question, amendments agreed to.

7 p.m.

Lord Mackay of Drumadoon moved Amendment No. 149:


Page 95, line 41, leave out ("Judicial Committee") and insert ("House of Lords").

The noble and learned Lord said: My Lords, in moving Amendment No. 149, I shall, with the leave of the House, speak also to the amendments which run through to Amendment No. 169.

These amendments return to an issue which I raised at Committee stage; namely, whether the ultimate court of appeal on devolution issues should be the Judicial Committee of the Privy Council, restricted as the Bill provides to those members of the Privy Council who have held office as Lords of Appeal in Ordinary or who hold or have held high judicial office, as that term is defined in Section 25 of the Appellate Jurisdiction Act 1876. That is one alternative. The other is that the ultimate court, as this amendment seeks to bring about, should be the Appellate Committee of your Lordships' House.

In replying to the debate on the last occasion, the noble and learned Lord the Solicitor-General set out three reasons why the Government considered that the Judicial Committee was the appropriate body to be the final arbiter on constitutional matters which will arise as devolution issues after the coming into being of both the assembly and the Scottish parliament.

The first reason he gave was that the Privy Council had experience of acting as the constitutional court of appeal for the colonies and various parts of the Commonwealth. The second was the need for it to be a flexible mechanism to deal with such disputes promptly--the suggestion being that by adding to the judicial workload of the Appellate Committee of your Lordships' House, it might be impossible to achieve sufficiently prompt decisions. The third reason was that the larger number of judges that would be entitled to sit if the jurisdiction was placed with the Judicial Committee would be an advantage.

I reflected carefully on the detailed reply given by the noble and learned Lord and discussed what he said with a number of Members of your Lordships' House and others outside. Having done so, I remain concerned that the Government have not reached the correct decision on what is clearly a difficult issue. To explain that, perhaps I can give my reaction to the detailed reasons which the Solicitor-General gave.

9 Jul 1998 : Column 1420

First, there was a suggestion that the Privy Council had experience of appeals from the colonies and the British Commonwealth. That is entirely correct. But the Bill before us on this occasion--as indeed did the Scotland Bill--will preclude any judges from Commonwealth countries from sitting on devolution issue cases. Therefore, the only members of the Judicial Committee who have experience of such constitutional cases will be those Members of your Lordships' House who currently hold or who have held in the past, office as Lords of Appeal in Ordinary. It is rare that a High Court judge from one of the jurisdictions within the United Kingdom sits as a member of the Judicial Committee of the Privy Council. That reason therefore does not stand up to detailed scrutiny. The same individuals will be sitting whether the jurisdiction is with the Judicial Committee on the one hand or this House on the other.

The second reason advanced was a need for a speedy resolution of disputes. I accept that that is desirable. But it is equally desirable that the Lords of Appeal in Ordinary should play a major part in the court that ultimately resolves the devolution issue and therefore, if there were to be any suggestion of the existing workload of the Appellate Committee making it impossible for the Lords of Appeal in Ordinary to play a major role in the final court that arbitrates on devolution issues, that would be extremely regrettable. The public will expect the Lords of Appeal in Ordinary to play a role and any problems that that might cause for their workload will require to be addressed by whichever court the jurisdiction is placed with.

The third reason given was that this would admit a wider pool of judges. I fully accept that, as a matter of fact, that is correct. My problem with that reason is that it was not taken into account when the decision was made. When the White Papers were published, it was made clear that it was proposed that the Judicial Committee was to be the final court of appeal. But it was also made clear that those who would sit on the Judicial Committee would be restricted to serving Lords of Appeal in Ordinary. Therefore, not even retired Lords of Appeal in Ordinary would be eligible to sit; only those who currently serve. As a lawyer, I have some difficulty--not for the first time--in accepting as a valid reason for a decision, a reason which was not available when the decision was taken and certainly was not one of the reasons for the decision when it was taken.

I accept that there are differing views on this matter. I accept that the matter is not entirely straightforward. But I firmly believe that on this occasion the Government have got the balance wrong and come to the wrong decision. Apart from the reasons which the noble and learned Lord discussed in his reply to my speech on the last occasion, there are other reasons that should not be forgotten. One is the fact that the decisions of the Welsh assembly, and indeed of the Scottish executive, will be challenged on a variety of issues. In a number of respects, it will be suggested that they acted beyond their powers; in other words, they have acted ultra vires, as lawyers would describe it. In some instances, those vires questions will be devolution issues and in others they will not. Therefore, there is a

9 Jul 1998 : Column 1421

serious risk of some cases involving a challenge to the Scottish executive going up one legal route to the House of Lords and, equally, others going up another legal route; that of the Judicial Committee to the Privy Council.

Even the Bill as drafted would not preclude the House of Lords considering and deciding upon devolution issues if it felt it appropriate to do so. Therefore, there is some concern that there will be confusion and that parties may become involved in more than one litigation and, consequently, involved in unnecessary expense.

There is the further reason that I mentioned on the last occasion; that is, that some people hold the view--and it has some merit--that giving additional jurisdiction to the Appellate Committee of your Lordships' House may serve to reinforce the supremacy of this Parliament. I fully accept that, in debating this Bill, those who are taking part in the discussions are not concerned with the threat of nationalism or with the cry for independence which is undoubtedly building up a certain head of steam at the moment in Scotland. But this further way of reinforcing the fact that this Parliament is supreme, and that in judicial matters the Appellate Committee of your Lordships' House is the superior court, is not a consideration that should be thrown away lightly. Others hold the view that if this jurisdiction is placed with the Judicial Committee, it will become an encouragement to having a constitutional court in this country--again, a major issue on which differing views are held. I am against it, but I readily accept that others are for it.

If we are to have a constitutional court, that is a major issue which should be addressed separately, carefully and in a considered manner. It should not be allowed to develop almost unconsciously from a development such as at present, which seeks to put this jurisdiction to the Privy Council.

For all those reasons, therefore, I press Amendment No. 149 as a matter which merits serious consideration by your Lordships' House. I beg to move.


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