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Lord Fraser of Carmyllie: I readily acknowledge that the draftsman of the Bill has put together an extremely elaborate and sophisticated set of arrangements for various Law Officers to intervene if the parliament acts beyond its legislative competence. That ties in elegantly with a number of provisions to be found in the Government of Wales Bill. All of that seems to be well settled. But what concerns me is that the whole issue of legislative competence has been approached too singularly from the point of view of the Scottish government, the Westminster Government and the Law Officers. What remains unclear to me is what would happen if an individual regards his human rights as being breached by proposed legislation. Does he have the right to go to the courts in Scotland at that stage and attempt, perhaps by way of interdict, to prevent the legislation proceeding? That is an absolutely fundamental question to which we must have an answer.

Lord Hardie: The noble and learned Lord may recall that in answer to a point raised by the noble and learned Lord, Lord Hope of Craighead, at an earlier stage of the proceedings in relation to interdict I said that the Government were considering the matter and would come back with either a statement or something else.

Lord Fraser of Carmyllie: I am very grateful to the noble and learned Lord. We should like to see that. If it is of any help to the Government, both I and my noble and learned friend Lord Mackay believe it is desirable, if a solution is suggested, perhaps to prevent individuals at that early stage from interrupting the legislative process, without obviously excluding their right at a later stage to come before the courts and challenge what is proposed.

Lord Rodger of Earlsferry: When consideration is given to this matter I presume that it will include the terms of Clause 6 of the Human Rights Bill which is now being considered by another place. Clause 6(1) provides that it is unlawful for a public authority to act in a way that is incompatible with a convention right. I presume that the Scottish parliament and the Scottish executive are public authorities for the purposes of Clause 6(1) of that Bill. I join with others in believing that in that situation it is necessary to consider very carefully the position at the interim stage and whether or not there is a remedy open to an individual, who would be a victim within the human rights legislation, if he could put himself into that position, or whatever other case might be appropriate, to challenge the legislation at that stage--in other words, while the legislation is going through the House--on the basis that it was incompatible with human rights and

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therefore was unlawful. It may be that in due course we shall see some alignment of the Scotland Bill with the Human Rights Bill.

We have been promised this from time to time but it has not yet come to pass. It will be interesting at that stage to see exactly how much scope there is for such a challenge to be made. Obviously, this is a matter of great importance from the point of view of the courts and the parliament and all those involved in the workings of it.

Lord Mackay of Drumadoon: I am quite sure that the noble and learned Lord the Lord Advocate will wish to deal with this matter in writing. I do not put any further questions at this stage. I am sure he readily accepts that there is a genuine concern as to what role, if any, the courts will play at this stage.

I should like to seek clarification on one matter. In his most recent intervention the noble and learned Lord spoke about concordats on either side. I am not sure whether it is proposed that there should be any concordats involving either this House or both Houses of Parliament and/or the Scottish parliament itself. As I understand it, the concordats are to be between Government Ministers and departments on the one side and the executive on the other. If so, it may well be that concordats would not formally cover the transmission of Bills or proceedings of this Parliament. That is a matter that may be reflected upon before we debate concordats in a day or two. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 232 not moved.]

Clause 30 agreed to.

Clause 31 [Scrutiny of Bills by the Presiding Officer]:

[Amendment No. 233 not moved.]

The Earl of Mar and Kellie moved Amendment No. 233A:

Page 15, line 42, leave out subsection (2).

The noble Earl said: Amendment No. 233A has the purpose of removing subsection (2) of Clause 31 and in so doing averting the humiliation and resignation of the presiding officer. The Bill allows the Scottish parliament to overrule the presiding officer on a matter of legislative competence concerning a Bill that is about to be introduced. We have had a good deal of discussion about this. I do not see why the power to overrule the presiding officer should be in the Bill at all. In a fixed term parliament the presiding officer has a different and greater statutory role than has evolved in this undocumented Westminster Parliament. I do not see how the presiding officer acting on professional advice and support can be overruled by the parliament and continue in office. A vote based on Clause 31(2) will be a vote of no confidence in the presiding officer. The mere calling of such a vote will weaken his authority.

There is a further concern about the significance of such an overruling of the presiding officer in the event of later judicial proceedings. A court is likely to be asked to decide upon the significance of such a ruling.

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Any measure that has attracted Clause 31(2) action will be seen as a highly marginal issue in terms of its vires. I believe that this measure is outwith the bounds of a fixed term parliament which is itself a creature of statute. I beg to move.

Lord Renton: I warmly support this amendment. When discussing Amendment No. 231 I referred to the important part played by the presiding officer. I was very much fortified by the confirmation provided by the noble and learned Lord the Lord Advocate that the position of the presiding officer would be analogous to that of the Speaker of another place. I believe that it would be chaotic if the decision of the presiding officer then had to be debated in the parliament. It would perhaps be a very long debate with an uncertain result. That would seriously diminish the authority of the presiding officer.

I hope that the Committee will agree on the need to leave out subsection (2). But with this amendment we are also discussing Amendment No. 234 in the names of my noble and learned friend Lord Mackay of Drumadoon and my noble friend Lord Mackay of Ardbrecknish. According to that amendment,

    "A decision made by the Presiding Officer under subsection (1) shall not be capable of being overruled by the Parliament".

It is arguable that from a drafting point of view that is unnecessary, but I believe it would be desirable to have it in for the removal of doubt. I have great faith in the Lord Advocate, but I hope he will keep an open mind on this matter. I am very worried about it and, as I mentioned when discussing the earlier amendment, we must try to avoid uncertainty in the provisions we put forward for establishing this new parliament. We must avoid uncertainty and delay. I believe that subsection (2) of Clause 31 is asking for trouble.

Lord Steel of Aikwood: I support my noble friend Lord Mar and Kellie in his amendment and I very much agree with what the noble Lord, Lord Renton, has just said. The presiding officer--a horrible name, to which we will come later--in the Scottish parliament will have, if I may say so with respect to the noble Lord, Lord Renton, an even more authoritative position than the Speaker of the House of Commons, because this is a whole area with which the Speaker of the House of Commons does not deal. It is important that we get it right.

As a layman, I must confess that I was a little disturbed by the tone of the previous discussion among so many distinguished noble and learned Lords who seemed to be imagining a process, which I find very difficult to contemplate, where legislation in embryo could be challenged in the courts. I am not aware that such a procedure has ever existed. It is highly undesirable.

Clearly, responsibility should lie with the presiding officer to declare whether something is or is not ultra vires. He will not do that off the top of his head. Presumably, he will take into account all the representations he has received; from his expert advisers within the parliament; from the Civil Service; and, no doubt, from Her Majesty's Government at Westminster.

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Anyone who cares to give advice can register it. He has that responsibility independent of the executive. That is the important thing. Parliament must trust him. One cannot have a situation where the parliament says, "We have decided to overturn your judgment today, but expect you to remain in office tomorrow". It seems to me that is an inconceivable position.

Moreover, I should like to ask a question of the Government Front Bench. In Clause 31(1) there are these words:

    "if the Presiding Officer decides that the Bill or any provision of the Bill would not be within the legislative competence of the Parliament".

I assume from this that the presiding officer would have the job also of declaring whether any amendment that might come forward to a Bill was ultra vires. Furthermore, I wonder whether, in the process of going through the proceedings of the parliament, something might not happen to render the Bill ultra vires. Going back to the previous discussion, does that mean that someone could make a legal challenge at that stage? It seems to me an impossible position. Greater clarity is required here. I believe that we can at least make a start by removing subsection (2) of the clause.

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