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Lord Hope of Craighead: I should like to add something to the points made by the noble and learned Lord, Lord Mackay of Drumadoon, about the relationship between the Lord Advocate and the Ministers. If I may be so bold, I make such comments from the point of view of the judicial committee of which I am a member. If these issues about legislative competence are brought before the judicial committee for decision, questions will arise from time to time which are questions of fact or questions about which information may be necessary in order to enable the committee to reach its decision. Indeed, that happens quite frequently in our proceedings and, sometimes, in the relatively informal way that these hearings are

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conducted, we put questions to counsel who have the advantage of having with them people from the relevant jurisdictions who can provide answers.

If such references are to be conducted with expedition, which is essential if the parliament is to be assisted to do its job, the less opportunity there is for delay and confusion the better. Indeed, if someone appearing in a reference is not representing the true originator of the issue or has no immediate access to the information which the committee needs to resolve the point, the more unfortunate the position will become. It seems to be very important to identify correctly the true initiator of the decision to bring the matter before the judicial committee. Broadly speaking, it is for that reason that I would be inclined to support the amendment moved by the noble and learned Lord.

Lord Hardie: Perhaps I may deal, first, with the point made by the noble and learned Lord, Lord Hope of Craighead. While I can understand that the judicial committee frequently deals with factual matters, it is difficult for me to understand how that would arise in this situation. The noble and learned Lord will be aware that the reference in terms of Clause 32 relates to the question of whether or not a Bill, or any provision of a Bill, would be within the legislative competence of the parliament. That strikes me as being purely a legal question. I give way to the noble and learned Lord.

Lord Hope of Craighead: I am much obliged. Perhaps I may just elaborate on what I said. One only has to look, for example, at the contents of Schedule 5 and the reservations listed therein to understand my point. Indeed, I happen to be looking at the section relating to medicines on page 81 of the Bill which says:


    "Regulation of prices charged for medical supplies",

and so on. Indeed, it does not seem very far fetched to suggest that issues of fact might arise to which the judicial committee would like to have a quick answer to enable it to get to grips with the true issue of law which needs to be decided. The problem is that the whole idea of the reference to the judicial committee is written into the Bill in about one line, without really establishing the nature of the jurisdiction which the committee will have to exercise at that juncture.

Lord Hardie: I understand the point raised by the noble and learned Lord. However, even if a question of fact should arise, I do not understand the point about the title of the person appearing. For example, if the Lord Advocate were appearing in his own right in such circumstances, I would be surprised if he did not have the ability to answer factual questions relating to medicines, and so on. I am sure that it would be within the ability of the Lord Advocate to obtain the necessary information to enable him properly to instruct the committee. Before taking the reference, no doubt the Lord Advocate, the Advocate General or, indeed, the Attorney-General would have considered such factual issues if they related to a particular matter.

I turn now to the point raised by the noble Lord, Lord Renton, as to the relative functions of the three Law Officers. Of course, the office of Lord Advocate

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will be devolved, so he will be the senior Law Officer to the Scottish executive and the Scottish parliament. He will have no role in relation to acting as a Law Officer for the UK Government. As far as concerns the Attorney-General, he will of course retain his present role.

As the noble Lord will appreciate, at present the Lord Advocate has certain functions in respect of the UK Government as regards giving advice on Scots law in relation to UK departments, and has an input into UK policy and its Parliament. Therefore, by taking the Lord Advocate north and confining him to Scotland and to the Scottish parliament, we have created a gap which the Advocate General will fill. He or she will be a Scots lawyer of standing who will assume the roles which the Lord Advocate presently exercises in relation to the UK Government and the UK Parliament.

Lord Renton: I thank the noble and learned Lord for his explanation as far as it has gone. I bear in mind what he has said about the Lord Advocate and that the Lord Advocate will continue to have his United Kingdom responsibilities--

Noble Lords: No!

Lord Renton: Well, who will have them in respect of Scotland because Scotland is to remain part of the United Kingdom.

Lord Hardie: I am sorry. I obviously have not made myself clear. After devolution the Lord Advocate will not have the responsibility to the United Kingdom Government which he has at the present time. That is why the new office of Advocate General has been created. He will take over the responsibilities of the Lord Advocate in relation to the United Kingdom Parliament. The Advocate General will be a senior Scottish lawyer appointed by the Prime Minister to perform the roles relating to the United Kingdom Parliament and Government which the Lord Advocate presently exercises.

5.45 p.m.

The Earl of Balfour: Can the noble and learned Lord say what is the position of the Attorney-General in this case?

Lord Hardie: As I sought to explain, the Attorney-General will be in exactly the same position as he is at the moment. He is the English Law Officer for the United Kingdom Parliament.

I turn to the group of amendments which we are considering at the moment. Amendments Nos. 235 and 239 would have the effect that the Attorney-General could not refer matters about the legislative competence of Bills of the Scottish parliament to the Judicial Committee of the Privy Council. The Government do not think that it would be appropriate to remove that right from the Attorney-General. If one goes on through the Bill, one can see that in terms of Part III of Schedule 6--that is, after legislation is in place--the Attorney-General has a specific role to play in

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proceedings in England. If, in the course of proceedings in England, there is a challenge to the question of the vires of a piece of Scottish legislation, it would be for the Attorney-General to raise the matter or, indeed, he could institute the proceedings themselves. In that situation the Lord Advocate would defend them.

It is envisaged that the Attorney-General will have a specific role in relation to legislation which has Royal Assent. We think that it is illogical to remove from him the role to challenge legislation prior to Royal Assent. There may be issues of English law and issues with which he is concerned which he wishes to raise at the pre-assent stage. That is why we are leaving the Attorney-General with the right to challenge legislation prior to Royal Assent.

Amendment No. 238 effectively removes the question of reference from Law Officers and hands it over to Ministers. The position which was outlined in the White Paper is that the Government recognise that the Scottish executive and the United Kingdom Executive may take different views of the Scottish parliament's legislative powers. In providing that references to the Judicial Committee should be made by a minister--whether it is the Secretary of State for Scotland or the first minister--noble Lords would run the risk of politicising the process and shifting the focus away from the determination of the legal argument. Essentially, whether it is competent or not is a legal issue and should not be a political issue. For that reason it was decided that the Law Officers were the appropriate people to raise proceedings about the competence of a Bill which had passed through its stages but was awaiting Royal Assent.

It is important to realise that the Judicial Committee will be concerning itself with technical questions of law and not matters of politics, although there may be issues of fact, as the noble and learned Lord, Lord Hope, has pointed out. In our view, in that situation it is appropriate that the references should be by the Law Officers rather than by other Ministers.

To deal with the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, we do not see the Law Officers acting in a representative capacity here. If the Law Officers consider that the Act is ultra vires, then they will intervene and raise proceedings in their own right.

Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, will he address this question? Does he envisage that before initiating such a reference, the Law Officer would consult his political colleagues and act in accordance with their views as to whether a reference should be made?

I fully take his point that the issue for the Judicial Committee to decide is a legal issue. But I do not demur from the suggestion I made earlier that the decision as to whether to initiate a reference could have a highly political content. The problem about the Law Officer initiating this reference, particularly if he is the Lord Advocate, is that a few months or possibly a few weeks earlier, as a member of the Scottish executive he would have been involved in the formulation of a view, which

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would have been given to the parliament by the Minister in terms of Clause 30, that the Bill is in accordance with the legislative purpose of the parliament.

However, a few weeks or a few months down the line there may be uncertainty as to whether he is still acting in his capacity as a member of the Scottish executive or in an independent role representing the public interest. Traditionally, over the years Lords Advocate have been called into cases, such as the Law Hospital case in which I appeared. In the application by the Law Hospital as to whether or not feeding should be withdrawn from a patient in a permanent vegetative state the court required the Lord Advocate to represent the public interest. He did so in his own right. How he goes about working out what is the public interest is a matter for him. But there is no suggestion in that event that he is representing the Government.

I have a concern that there is an element of confusion here. I should be grateful if the noble and learned Lord would confirm whether he envisages that this would be the decision of the Lord Advocate, the Attorney-General or the Advocate General alone, or would it be one in which he took on board the views and acted in accordance with the wishes of his political colleagues?


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