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Lord Hope of Craighead: I am grateful to the noble and learned Lord for giving way. A series of rhetorical questions have been asked. But it occurs to me that one should not entirely disregard the fact that the parliament is made up of individual members. One of the problems that may well arise is that a private member has an interest in a Bill which is then declared by the presiding officer to be outwith the legislative competence. If I were asked what his remedy is, my advice would be to seek a judicial review in the court of the presiding officer's decision. That takes us back precisely to the argument we discussed previously. The two provisions are very much interrelated on that aspect.

We should not ignore the fact that the individual private member may want to take those remedies in order to make progress on a Bill about which he feels strongly.

Lord Dixon-Smith: Before the noble and learned Lord resumes, we need to consider this issue the other way round. It is not just that the presiding officer may

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be wrong. As the clause is drafted, the presiding officer may be right but under subsection (2) none the less the parliament has the right to set his opinion aside. That seems to me exceedingly dangerous. If I am right, amendment must be required.

Lord Hardie: Perhaps I may deal with the noble Lord's point. Just as the presiding officer may be wrong on occasions, the executive or the parliament may be wrong in challenging his decision. The noble Lord is correct; the parliament could overrule that decision. However, if that were to happen, the protection is the entitlement of the Lord Advocate or the Attorney-General to challenge the legislative competence of the Bill and to make a reference prior to the Bill obtaining Royal Assent.

If the executive, having been involved in a decision of the majority of the parliament, overrules the presiding officer it is inconceivable that the Lord Advocate would be involved in that challenge. One imagines that the Lord Advocate would have advised the executive. But it is conceivable that the executive might be in a minority in deciding to overrule the decision of the presiding officer. If that were the case, the Lord Advocate undoubtedly would challenge the competence of the Bill at the appropriate stage.

However, if the executive were in the majority, it is inconceivable that the United Kingdom Law Officers would be unaware of that exercise and the Lord Advocate or the Attorney-General would take action in accordance with Clause 31(4). Therefore the fear that legislation which had overridden the correct view of the presiding officer would be passed without proper scrutiny is unjustified.

I should like to turn to the question relating to the effect on the standing of the Speaker. The noble Earl, Lord Mar and Kellie, stated that the presiding officer would be brought into conflict with the parliament or the Scottish executive. I do not necessarily share that view. The provision simply enables the parliament to allow a Bill to proceed in the knowledge that once it has passed through the various legislative stages, if there is any uncertainty about vires, the Bill can be referred to the Judicial Committee of the Privy Council. Therefore the parliament and the executive would be in no doubt that there could be a reference if the presiding officer took a considered view that it was ultra vires.

I feel that the presiding officer would command the respect of the parliament and his decision on legislative competence would usually be upheld and respected. However, as I previously indicated, it is important to make provision for the exception.

5 p.m.

Lord Renton: Will the noble and learned Lord give way? I regret to say that the noble and learned Lord is not right. Subsection (2) is perfectly plain in its statement that parliament may overrule any decision of the presiding officer. In practice parliament may agree

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on most occasions but if it decides to overrule it may only do so after a vote, and it would be very unusual for a vote to be taken without a debate having taken place. For the presiding officer to be the subject of a debate in the Chamber, frankly, to divert attention away from that situation to the possibility of the matter ultimately being referred to the Judicial Committee avoids the difficulty that is certain to arise.

Lord Steel of Aikwood: Will the noble and learned Lord allow me to reply? The Bill allows the executive or one of the Law Officers to take the Bill to the Judicial Committee before it goes for Royal Assent on the grounds that it is ultra vires. That is a sensible provision. However, to refer the matter to the courts before then, even allowing for the suggestion made by the noble and learned Lord, Lord Hope, to challenge the decision of the presiding officer in the courts is highly undesirable, just as the reference in the Bill is undesirable.

The ultimate remedy of the Scottish parliament if the presiding officer mucks about and gets it totally wrong is to do what is done in another place; namely, to table a substantive motion of no confidence in the Speaker. That provision is very familiar. It is a remedy that can only be used once, but it does exist.

Lord Hardie: With respect to the noble Lord, Lord Steel of Aikwood, that would be taking a sledgehammer to crack a nut. Suppose that the presiding officer genuinely made a mistake. Would it be appropriate for the parliament to table a vote of no confidence and to have the presiding officer removed? It would be less severe for parliament to consider the matter and overrule the presiding officer in that situation. The protection the public has is that if parliament is wrong and the Speaker is right, then the ultimate adjudicator is the Judicial Committee of the Privy Council.

If the provision is not allowed to enable the presiding officer's decision to be reviewed, then, subject to the comments of the noble and learned Lord, Lord Hope of Craighead, the effect is that the ultimate arbiter of the competence of proposed legislation is the presiding officer rather than the Judicial Committee of the Privy Council. That is only subject to whether the executive or an aggrieved member has the right of judicial review of the decision of the presiding officer. As I indicated, this matter is being considered in detail.

The question of the executive judicially reviewing the presiding officer would undermine the presiding officer more than if parliament considered whether or not the presiding officer had got it right. To drag the presiding officer through the courts would be quite inappropriate. The noble Lord, Lord Steel, is nodding in agreement that it would be quite inappropriate. If that remedy were not available to the executive or to an aggrieved member, what would be the remedy where the presiding officer got it wrong and effectively prevented legislation from being considered?

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Lord Steel of Aikwood: I am most grateful to the noble and learned Lord for giving way. The answer is that we are living in the real world of politics as well as law. If the presiding officer got it wrong on a Private Member's Bill it is open to that private Member to reintroduce the Bill in the next Session, having made a great row in public and in the press, through agitation, to amend two lines in it. The presiding officer would then get it right. We have to live in a practical world as well as a legal world.

Lord Fraser of Carmyllie: The noble and learned Lord the Lord Advocate is far too reasonable a man. He advanced his argument carefully on the basis that if anyone enters into a dispute about the limits of the legislative competence of this parliament, they do so in good faith. It is not impossible to envisage circumstances where the majority in the Scottish parliament when it is first established do not accept the limits placed on the legislative competence of the parliament and may take every opportunity to test it further. Having looked at the framework, they may appreciate that it would be a legally futile gesture to make because, sooner or later, the Judicial Committee of the Privy Council would knock it out. However, it is not difficult to envisage 18 months of political turmoil. A majority group, having overridden a presiding officer who had looked at the law, taken the best advice and reached a view, and a Lord Advocate, who had looked at the law and offered a view, could nevertheless spend a considerable time trying to establish that what fell within the legislative competence of the parliament was inadequate. It might wish to take the opportunity to spell that out. That seems to me to be the real role of politics which the noble Lord, Lord Steel of Aikwood, referred to. For those reasons we wish to have as precise and clear a set of arrangements as possible, allowing the least possible opportunity for mischief.

Lord Rodger of Earlsferry: Since the presiding officer will enjoy a very difficult and lonely role, will the Government consider giving him the kind of right that the Advocate General, the Lord Advocate and the Attorney-General are given in Clause 32(1) to refer the matter to the Judicial Committee? That might provide him with a back-up. I fully accept that 99 times out of 100 the Advocate General will take the point but it might bolster his standing when he is given the role of taking decisions on the competency of legislation if he too could refer the matter to the Privy Council at an appropriate stage.

The Earl of Mar and Kellie: Committees of this House do not normally take so long to discuss amendments that I put forward. The truth will always out! I have received a considerable amount of support for the amendment. I still believe that Clause 31(2) is unsustainable as regards the position of the presiding officer; that is, unless the provision is one of those quaint devices whereby one calls for a resignation or it is a means of introducing a vote of no confidence in the

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presiding officer. The noble and learned Lord the Lord Advocate has told us that that might well be a routine procedure and not a major and last-resort means of getting rid of an errant presiding officer.

I agree with my noble friend Lord Steel of Aikwood, about the opportunity to reintroduce a Bill believed to be ultra vires after some discussion with the presiding officer and his advisers. I believe that we should pursue the amendment and therefore I wish to test the opinion of the Committee.

5.11 p.m.

On Question, Whether the said amendment (No. 233A) shall be agreed to?

Their Lordships divided: Contents, 136; Not-Contents, 119.


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