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Lord Hardie: I should like to draw a distinction, first of all, between Acts of the Scottish parliament which are initiated and introduced by the executive as part of the government's programme of legislation, and the legislation introduced by others such as Back-Benchers.

In the latter case the Lord Advocate would not have been involved in any statement in terms of the legislation by the person who is introducing the Bill. It is understandable in that situation how the Bill could go through. The Lord Advocate would say, "Well, I am not happy with this. It is outwith the competence and I am raising proceedings".

I turn to the situation where we are talking about government legislation. Of course, ultimately the workings of the executive will be for them. But I would envisage that the Lord Advocate, as Law Officer, would have a role similar to the one which he exercises at the moment in advising the executive about the legality of proposed legislation, and so on.

If the Lord Advocate has advised the executive that he or she considers that the proposed Bill is within the competence of the parliament, and then it goes through the parliament, it is inconceivable that the Lord Advocate will take a different view just before Royal Assent. Therefore I do not see that difficulty arising.

If the Lord Advocate is minded to raise proceedings challenging the competence of legislation which is about to be presented for Royal Assent, I would certainly anticipate that the Lord Advocate of the day would advise his ministerial colleagues that he had taken this view and that he was proposing to intervene and to present the necessary application to the Judicial Committee of the Privy Council. I do not anticipate--and I would not myself accept--that the executive would be able to discourage the Lord Advocate from that course because, if he has taken the view that this

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matter is ultra vires and outwith the competence of the parliament and has decided that he will proceed, clearly he ought to explain to his ministerial colleagues why he considers the matter is ultra vires. However, that would not be a political decision and he ought not to be influenced by any political consideration not to proceed in that situation.

As I said, this may be an interesting academic exercise or discussion because at the earlier stages, if it is a government Bill, the Lord Advocate will have expressed a view about the competence of the legislation. If he has taken a view at the earlier stages that it is not lawful, he ought to make that clear to the executive and, if need be, consider his own position if that advice is not accepted.

I hope that it follows from what I have said that I see this as a public interest issue. The Government consider it important that the making of the reference should be left in the control of the independent Law Officers because of the constitutional significance of this matter and bearing in mind the desirability of having harmony between Scotland and the United Kingdom. It should not be left to politicians to decide whether or not they will challenge legislation. I take up the point that the noble and learned Lord, Lord Fraser of Carmyllie, alluded to earlier. If there were extreme people in power who wanted to push the parliament to extremes and to challenge Westminster, the independent Law Officers may well be seen (I hope they will) as a protection against such excesses. I hope it will be considered that the independent Law Officers would not simply accept instructions from a group of politicians who were clearly acting outwith the competence of the legislation. With that explanation--

Baroness Carnegy of Lour: I am concerned not so much about the political aspect but rather about the mechanics of the matter which I do not understand. The noble and learned Lord, Lord Hope, pointed out that the judicial committee would need to ask various questions and to be able quickly to acquire the facts that were needed to enable it to reach a decision. According to Clause 32(1) the Attorney-General could make the reference right from the start. However, he is an English Law Officer. Would he have been in Edinburgh while all this was going on? Is it right that he should be included in that clause at that point? The noble and learned Lord said that at a later stage there may be an English dimension to all this. Obviously the politics of that would be fairly tricky. One can understand there may be occasions when the Attorney-General would be involved. However, if a measure has come from the Scottish parliament and it concerns Scottish legislation and decisions to be made by that parliament, why is it possible for the Attorney-General to make the reference? I should have thought that that would be pretty unacceptable and not an easy matter for the judicial committee. However, I may be quite wrong.

Lord Hardie: We are concerned with the legislative competence as to whether the parliament has exceeded its powers and encroached on the powers of the United Kingdom Parliament. By the word "encroached" I mean

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encroached in an unacceptable way because there will always be certain overlaps. The Attorney-General may well have an interest if the effect of the Scottish legislation is to encroach to an unacceptable extent upon his jurisdiction.

As regards the ascertaining of facts, the Attorney-General will, of course, have that within his power, just as much as the Advocate General. The Advocate General will essentially be concerned with United Kingdom issues. The Attorney-General will have the ability to obtain the necessary factual material, just as much as the Advocate General. I refer to the example given by the noble and learned Lord, Lord Hope of Craighead. Medicines are a United Kingdom matter. It would be easy for the Attorney-General to obtain the necessary factual material for the judicial committee. I am bound to say I still feel that the likelihood of the judicial committee requiring factual evidence is probably more remote in this kind of case than in the other kinds of case that the noble and learned Lord is accustomed to deal with.

Lord Renton: I wish to ask the noble and learned Lord another rather vital question. He has made clear that the Advocate General is to be a member of the Scottish executive.

Noble Lords: No!

Lord Renton: I am sorry. I made a slip of the tongue. I meant to say that the Lord Advocate will be a member of the Scottish executive and his first loyalty will be to the Scottish executive. Therefore he is unlikely ever to refer to the judicial committee a complaint about the Scottish executive's legislative intention. In those circumstances, if the Advocate General thinks that a complaint should be made, will he be able to overrule the Lord Advocate?

Lord Hardie: I am sorry. I should have picked up the point the noble Lord made earlier about what happens if two out of the three agree. With respect, that may be due to a misunderstanding on the part of the noble Lord. Any of these people may take proceedings. The Lord Advocate could take the decision himself to challenge legislation. Equally, the Attorney-General could take the decision himself to challenge legislation. If legislation had been challenged by the Attorney-General, which the Lord Advocate had advised the executive was perfectly competent, I would anticipate the Lord Advocate being on the other side of the litigation. Similarly the Advocate General may, on his or her own account, take the decision to raise proceedings. Therefore all three do not need to agree; anyone can decide that he or she thinks that the legislation is outwith the competence.

6 p.m.

Lord Hope of Craighead: Perhaps I may return to the point raised by the noble Baroness, Lady Carnegy of Lour. It relates to a question of procedure which is not clear from this clause but may be provided for under the Orders in Council referred to in Clause 94. The judicial committee would be in grave difficulty if it did

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not have two parties before it--a contradictor to the argument put forward by the party initiating the proceedings. I should welcome a comment from the noble and learned Lord. Does he envisage that if, to take an example, the Attorney-General were to raise an issue, the judicial committee would have power to order the proceedings to be served upon a Scottish Law Officer, or possibly a Scottish minister, in order that a proper contradictor can be presented to the committee before the case is heard?

Lord Hardie: I believe that this matter may be dealt with by orders. I will write to the noble and learned Lord to confirm that.

As I understand it, proceedings against the parliament or the corporate body will be served upon the Lord Advocate. Therefore, if the Attorney-General raised a question as to the competence of the legislation, that would be done in the form of an initiating writ, which would then be served upon the Lord Advocate.

As I indicated to the noble Lord, Lord Renton, if the Attorney-General raised proceedings and the Lord Advocate had advised the Scottish executive that the matter was within its competence and had supported the legislation through parliament, then the Lord Advocate would undoubtedly enter the process and argue the case for the Scottish parliament as to the legality of the legislation. Similarly, if the Advocate General raised proceedings, again they would be served on the Lord Advocate.

The only question might arise when the Lord Advocate initiated proceedings as to the legality of legislation. As I said, the most likely situation would be if legislation were introduced by a Back-Bencher or someone other than the Scottish executive, if the Lord Advocate had taken the view all along that that was not within the powers of the parliament, then the Lord Advocate would raise the matter. I will examine the question as to who should be the contradictor in that situation. Clearly, in that situation I should not anticipate the Attorney-General or Advocate General entering the proceedings. I shall certainly consider that matter and come back to the noble and learned Lord.


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