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Lord Mackay of Drumadoon: I am grateful to the Minister for explaining the purposes of these amendments. I will read with care what he has said.

I wish to raise a few small points on the amendments which he may care to answer this afternoon or on which he may write to me before Report stage. In Amendment No. 291GC, in the third line, perhaps after the word "function" there may be value in including the words "within the competence" of the Scottish Ministers, the First Minister or the Lord Advocate. It may be said that that is implied, but it might be helpful to have that clarified.

I say that because, in addition to the functions set out in the Bill that are to be transferred to the members of the Scottish executive--who include all the Scottish ministers, the First Minister and the Lord Advocate--it will be competent, by way of a Clause 59 order, to add to these executive functions.

I should be grateful if the Minister could explicitly clarify that if any issue arose in relation to the competency of the exercise of the reserved functions of the Lord Advocate, that would be a devolution issue rather than a vires issue, which would be dealt with by the existing law under the judicial review procedure.

When one looks at the amended clause--which it will become once these amendments are agreed--it is important to be clear whether such questions of competence under Clause 59 functions or reserved functions fall within the definition now before us. As I am sure the noble Lord will appreciate, I am not asking these questions for academic reasons. Indeed, I am

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asking them for the very reasons he himself identified; namely, to seek to minimise the risks of an individual having to raise more than one action or indeed an individual raising one action with a number of issues in it, with some of them going down one judicial route to one Court of Appeal and others going down another judicial route to another Court of Appeal. They are complicated matters. I do not necessarily expect an answer this afternoon but I would welcome one before Report.

Lord Steel of Aikwood: Perhaps I may take this opportunity to say that, in my view, Schedule 6 was not properly examined in the other place. No doubt there will be a desire to examine it properly here. I do not propose to take up the time of the Committee, but I think it would be convenient if I gave notice that at Report stage, having consulted my noble friends Lord Lester and Lord Goodhart, we intend to table an amendment to define properly the composition of the Judicial Committee of the Privy Council under the heading of a constitutional court. It is entirely unsatisfactory that the whole of this part of the Bill should be put on appeal to something that is amorphous and ill-defined. I believe that its composition ought to be made clear and there will be a later opportunity to do that.

Lord Wilberforce: I very much support what has just been said by the noble Lord, Lord Steel. I had very much the same point in mind. It is deplorable that when we came to Clause 32 there was no discussion whatever on the procedure of reference to the Privy Council. On this part, again no amendment has been put down. Unfortunately, my noble and learned friends from Scotland are not here today and it is hardly for me, with very tenuous though precious connections with Scotland, to raise this point. I shall look forward very much to what the noble Lord has to say at the Report stage, particularly as regards the composition of this body, which at the moment is totally amorphous and totally undefined and yet is to be put in the position of giving decisions which are binding on the supreme constitutional court of the United Kingdom; namely, the House of Lords. The point does not quite arise on the amendment of the noble and learned Lord, Lord Mackay, but, the noble Lord having raised it, I hope I may be forgiven for having added my voice to his.

Lord Hope of Craighead: Without taking up time, on behalf of the Scottish judges who are absent, perhaps I may endorse what the noble and learned Lord has just said. I share much of these concerns. A particular point of concern is that the Scottish judiciary should be properly represented on the judicial committee. The position is quite simple at the present time, but this measure is intended to last well into the next century. We cannot be sure that the composition of the judicial committee as it is today will be the same in 30 years' time.

Lord Sewel: I thank the noble and learned Lord, Lord Mackay, for raising these questions. I shall take

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the opportunity to consider them and will certainly be writing to the noble and learned Lord with full and, I hope, appropriate and adequate answers.

On the points raised by the noble Lord, Lord Steel, and the noble and learned Lords, Lord Wilberforce and Lord Hope, I look forward to seeing the resolution that they propose. I am happy to enter into correspondence with them if they wish to write. On that basis, I hope that we can agree the amendments.

On Question, amendment agreed to.

Lord Sewel moved Amendments Nos. 291GC to 291GE:


Page 84, line 14, leave out from beginning to ("whether") in line 21 and insert ("a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,
( ) a question whether the purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, within devolved competence,
( ) a question").
Page 84, line 21, leave out from ("function") to ("by") in line 22.
Page 84, line 25, at beginning insert ("a question").

On Question, amendments agreed to.

[Amendment No. 291GF had been withdrawn from the Marshalled List.]

Lord Sewel moved Amendment No. 291GFA:


Page 84, leave out lines 27 to 29 and insert--
("( ) any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters.").

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 291GG:


Page 84, line 29, at end insert (", or
( ) whether the standing orders of the Parliament comply with the provisions of this Act").

The noble and learned Lord said: Before I deal with this amendment, perhaps I may make one observation in response to the point raised by the noble Lord, Lord Steel, and others. Ministers have been very helpful in making available to your Lordships copies of draft orders dealing with various aspects of the devolution settlement. A Section 59 order is an example of that. If there is in existence a draft order or a draft Order in Council of the procedures which are intended to apply to supplement the provisions in Schedule 6 for the references of devolution issues from the courts up to the judicial committee, it would certainly be of assistance if that could be available when we return to discuss these matters at a later stage.

In this series of amendments I seek to identify a number of issues which I believe should be devolution issues. Some of them are matters which I have raised on more than one occasion during the debates in Committee so far. I refer in particular to what was said on the second day of Committee on 14th July (at cols. 248 and 249 of the Official Report), on the third day of

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Committee on 16th July (at cols. 247 to 251 of the Official Report) and on the seventh day of Committee on 28th July (at col. 1391 of the Official Report). I do not offer any major criticism as I appreciate that the matters are very complicated, but on some of the issues that were raised promises were made of an answer or a letter. Such promises remain unfulfilled.

I should be grateful if the Minister who is to reply could make clear the Government's policy on a number of the issues that I have set out in this series of amendments as devolution issues. First, is it intended that the courts should be able to deal with a challenge to the competency of the standing orders of the Scottish parliament based on the argument that, as approved by the Scottish parliament, they fail to comply properly with the provisions of the Bill, and in particular with Clauses 21 and 22 and Schedule 3? Secondly, if such a challenge is to be competent, who would have the right to raise such a challenge--the title of interest, as we refer to it in the courts? Thirdly, is it intended that the vires of an Act of the Scottish parliament can be challenged on the basis that it has not been passed in accordance with standing orders that comply with the provisions of the Bill as it is finally enacted by Parliament? That matter is focused on in Amendment No. 291GH.

Is it intended that the vires of an Act of the Scottish parliament can be challenged on the basis that it has not been enacted in accordance with the standing orders of the parliament, as they have been adopted by the parliament, or that the particular standing order in question is one required for the parliament by the Scotland Act or one which it has chosen of its own volition to incorporate in its standing orders? That is focused on in Amendment No. 291GKB. Similar issues are focused on in Amendments Nos. 291GJ and 291GK in relation to the vires of subordinate legislation made by members of the Scottish executive and, if appropriate, approved by a resolution of the Scottish parliament.

It seems to me that if the answer to any of these questions is yes--and I believe that in many instances, if not in all of them, that will be the answer--the next issue which arises is whether the Minister is satisfied that the terms of paragraph 1 of Schedule 6, as currently drafted in the light of the amendment which the noble and learned Lord, Lord Sewel, has just moved, covers each of the issues I have identified.

For the reasons I mentioned in speaking to the last group of amendments, I am extremely anxious to restrict the number of court actions that may have to be raised and also any confusion as to whether a particular legal issue is a devolution issue which falls to be dealt with according to the procedure set out in Schedule 6 or a vires issue which is a not a devolution issue, in which case different procedures might apply. Once again, I appreciate that these are technical matters in regard to which it may be inappropriate to expect a full answer this afternoon, but I hope that it will be possible to address them, by letter if necessary, in sufficient time to enable me to consider whether any further amendments will be required before we reach Report stage. I beg to move.

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4 p.m.

Lord Renton: I wonder whether my noble and learned friend will make it clear--I may not have understood well enough what was said--that this group of amendments does not deal with vires at all. The group deals simply with the question of whether the various matters listed in these six amendments have been dealt with in accordance with the standing orders of the parliament which themselves have nothing to do with vires but only with procedure.


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