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Baroness Carnegy of Lour: Can the noble and learned Lord answer one question that concerns me? He said that during the drafting of a Bill civil servants of the Scottish parliament might well be discussing points which related to the drafting of the Bill with other civil servants in the United Kingdom. The Bill says somewhere that civil servants in the Scottish Office are part of the United Kingdom Civil Service. Would it be possible for the members of the Scottish executive or the presiding officer to instruct Scottish Office civil servants not to consult United Kingdom department civil servants?
Lord Hardie: The simple answer to that question is yes. It would be possible for the executive to give instructions to civil servants not to provide information. However, I hope that we will not reach that stage in our relations between the two parliaments.
Lord Fraser of Carmyllie: I am grateful to the Lord Advocate for a number of the points that he has made, but I am a little puzzled by the basic approach that has been taken to competence in relation to this Parliament. I hope that the noble Lord, Lord Steel, appreciates that none of us who is concerned about this has the least intention of trying to introduce a further stage for Scottish legislation which would necessarily bring some part of that legislative process to Westminster. At the very most, we want to ensure--this seems eminently sensible if there is even the risk of challenge as to competence--that those who are engaged in these matters at Westminster should have such legislation drawn to their attention.
As the noble and learned Lord will appreciate from Clause 32, the Advocate General--I understand that he will be a Member of this Parliament, in this House or in another place--would have the responsibility to challenge in certain circumstances. The Bill provides for that at a later stage. However, it seems to me to be appropriate that at the earliest possible stage, if a Law Officer of this Parliament is to mount a challenge--be that the Advocate General or the Attorney-General--he should be aware of that and be able to make his argument about the Bill's incompetence at an early stage rather than having to wait for the whole Bill to proceed through all its stages in that parliament. That seems to me to be a fairly simple and fundamental way to approach this matter.
The most interesting thing that the noble and learned Lord said was that he could not imagine anyone having a title to raise legal proceedings by way of judicial review in respect of the legislative competence of this Parliament. I agree with him that it might be difficult to imagine that, but I would like to be reassured as to whether he is offering the view that nobody, in any circumstances, is entitled to raise issues of legislative competence before the courts other than the Law Officers to whom the legislation refers.
What troubles me about the clause is that, first, it is for the presiding officer to reach a view as to whether something is within the parliament's legislative competence. He offers a view; he may or may not be right. We must assume that in certain circumstances he may be wrong. Clause 31(2) then states that the standing orders provide for the parliament itself to override that decision.
Perhaps I may outline the circumstance that troubles me. Let us assume that I am a member of that parliament. I am in the minority. I have failed to get the majority in the parliament to overrule a decision of the presiding officer, but it is still my view that the Bill is beyond the legislative competence of the parliament. At that point, would it be open to me to take the matter to the courts and to have the issue tested at that stage? If I have missed something and the answer is no, and if at that point there is no opportunity for an individual or a group of persons who might be affected to raise the issue, it would be extremely helpful to have that spelled out.
If I have a concern about the totality of the provisions it is that I fear that there is a set of ambiguities that do not reveal--certainly, they do not reveal to me--exactly what the position would be. That seems to me to be a much more important issue to address rather than the essentially ancillary points about how such issues are brought to the attention of Members of the Westminster Parliament, members of the Scottish parliament or, indeed, informed citizens in Scotland or elsewhere. Until I have a clearer understanding of that, I believe that we face the risk of paddling around in confusion and failing to make much progress.
Lord Torphichen: Perhaps I may answer that point so far as I can. The Government have set their system fairly firmly in favour of review after a possible non-conforming Act has passed through the Scottish parliament. I am sure that it would be much easier to rule out an offending clause or to modify the intention slightly at an early stage rather than wait until that Bill has passed through the Scottish parliament when such phrases as, "It is now the settled will of the Scottish people", will be bandied around.
The noble Lord, Lord Steel of Aikwood, said that this is making another "nannying" rule for the Scottish parliament. The whole of this Bill is a set of rules, established by this Parliament, relating to the future parliament in Scotland. One more or one less rule does not make for nannying. The whole Bill is a nannying process. Given that sooner or later somebody will wish to test the limits of what can or cannot be done, I believe that this is the point at which we can choose between not being independent or going for full independence--and the Scottish National Party will make use of this provision over the years until independence is brought about.
Perhaps I may make my own position on that quite clear: I do not think that it would be prudent for such a legal challenge to be open. It should be a matter between the presiding officer on the one hand and the parliament on the other hand--that is, if subsection (2) is to remain part of the Bill.
On the more general issue, the noble and learned Lord the Lord Advocate was kind enough to acknowledge that it was no part of my argument to try to suggest that this Parliament had some form of supervisory or nannying role over the activities of the Scottish parliament. However, the Scottish parliament will have to learn that a variety of people will be interested in its affairs, in the Bills that it is considering and in the Acts of Parliament that it is passing. Those persons will include not only individual Members of your Lordships' House and individual Members of another place, but quite possibly also the Houses of this Parliament themselves. Therefore, it is not impossible that in the fullness of time, whether as a consequence of a debate in this House or the deliberations of a committee, a decision will be taken to convey to the Scottish parliament the views of, say, your Lordships' House.
Only a few days ago we debated whether to present an humble Address to Her Majesty on a matter which was causing considerable concern to a number of Lordships. If views come from here, one likes to hope that the Scottish parliament will not behave as if it is a child being talked to, or talked at, by a nanny. When tabling these amendments, I did not for one moment think that that would be appropriate. I thought it appropriate to set up some form for communication between the two parliaments on the Bills that they will be considering.
Lord Hardie: At this stage perhaps I should deal with some of the points raised in the debate. I am advised that there will be concordats, about which we have heard already, to ensure that prospective legislation in both Scotland and Westminster is drawn to the attention of the other side. That will enable points on vires to be raised early, as the noble and learned Lord, Lord Fraser of Carmyllie, was anxious to secure.
As to title and interest, I apologise if I have not been clear. I was referring to title and interest to challenge the decision of the presiding officer, not to the whole question of the competence of the parliament. There is provision in the Bill for the Law Officers to challenge the title and interest at pre-Assent stage, and in any proceedings other people can challenge the competence of a Scottish Bill. The various Law Officers can intervene at that stage.
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