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Lord Mackay of Drumadoon: I am grateful to my noble friend for his intervention. He is entirely correct as a matter of strict law. The problem is that in attacking the vires of the legislation various legal arguments will be deployed. It will fall to be assessed by the courts as to whether or not they give rise to devolution issues. The issue in itself may not be a question of vires but the issue that is being deployed as a legal argument may be part of a series of legal arguments attacking the vires of the legislation or attacking the vires of the subordinate legislation. That, as I understand it, is the approach set out in Schedule 6. One may take as an example paragraph 1(a), just amended, which states that "devolution issue" means a question,


Strictly speaking, deciding whether a legal argument along those lines is a devolution issue or not is not necessarily a question of vires. The legal argument is deployed as part of an attack on the vires of the legislation. That is, I understand, the approach which the Bill takes. No doubt the noble and learned Lord the Lord Advocate will be able to confirm whether or not I am correct.

The Lord Advocate (Lord Hardie): To deal with the point made by the noble and learned Lord at the outset, there are working drafts of the subordinate legislation and regulating procedure and these have been put in the Library and the Printed Paper Office. So they are available. However, I emphasise that they are still working drafts and work on them is continuing. The decision was taken to put them in the Library and the Printed Paper Office to enable noble Lords to consider them at this stage if they so wished.

The Government cannot accept these amendments, which seek to extend the range of matters which fall to be determined as devolution issues under the special provisions of Schedule 6. I take the point made by the noble Lord, Lord Renton, that these truly are not legal issues. I hope that the Committee will forgive me if I repeat what the purpose of Schedule 6 is. It is to define devolution issues which are to be subject to special judicial procedures. Devolution issues are essentially issues about the legislative competence of the parliament and the devolved executive competence of the Scottish executive.

The amendments would bring challenges to the procedures of the parliament within the scope of Schedule 6. It is our view that that cannot be right. Of course it is important that parliament does pass its legislation properly in accordance with properly drafted

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standing orders. However, that is not a matter for Schedule 6 or the Judicial Committee of the Privy Council but for the parliament itself. Indeed, I would venture to suggest that it would not be a productive use of the valuable time of the Judicial Committee of the Privy Council to deal with these issues. But nothing in Schedule 6 would prevent what I would describe as a normal challenge in terms of judicial review. For example, if one considered that a member of the Scottish executive had made subordinate legislation without following the proper procedures, that would be a matter for the ordinary judicial review, if I may put it that way, under the ordinary law. It is not a matter for the Schedule 6 procedure involving directly the Judicial Committee of the Privy Council.

If I may briefly refer to two of the examples raised by the noble and learned Lord, the first is this: could an Act of the Scottish parliament be challenged on the basis of the failure of the parliament to comply with the standing orders? The answer is no, and the reason is contained in Clause 27(5) which excludes a challenge. That is the purpose of the clause. The second question, which gives a different answer, is: could the courts deal with the competency of a standing order? The answer to that is yes, in terms of the judicial review procedure. As to title and interest, it is left to the courts to decide as to who properly has title and interest in any given case.

I hope those explanations will enable the noble and learned Lord to withdraw the amendment. If there are any particular issues that he wishes me to deal with further in writing, I shall be happy to do so.

Lord Renton: I thank the noble and learned Lord the Lord Advocate for his lucid explanation. However, may I make a suggestion? I think it would enable the sixth schedule and this part of it to be better understood if Clause 91, which is not at all explanatory, were to be amplified so as to set out the principle, in broad terms and fairly briefly, and to underline the way in which the sixth schedule is to be applied. Can that suggestion be considered between now and Report stage?

Lord Hope of Craighead: In my experience some of the challenges which are liable to be made will be made by people acting without legal advice. In the courts we often encounter the litigant in person, the party litigant, who will have to try to understand the schedule and appreciate the point which the noble and learned Lord has made.

It occurs to me that the litigant's target is going to be either the Act or the subordinate legislation. It may be quite difficult for him to appreciate that he may have to go to a different court in order to obtain an answer depending upon the way in which he develops his argument. As the noble and learned Lord, Lord Mackay of Drumadoon, pointed out, these arguments tend all to be gathered together as a means of securing the desired remedy, which is to get rid of the Act or the subordinate legislation.

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The point which is troublesome but inevitable, I imagine, is that the route will be different according to the nature of the attack. It is really in order to minimise the risk of confusion that I think there is great force in the point which has just been made.

Lord Steel of Aikwood: Before the noble and learned Lord replies, perhaps I may intervene. I may have misunderstood what he was saying. However, at one point I thought he was not keen to extend the list of those matters in which the courts might intervene, but it seems to me that that is precisely what his amendments would achieve if they were carried. In particular, if one looks at Amendment No. 291GKA, to suggest that there could be some court involvement in establishing whether subordinate legislation which a member of the Scottish executive has purported to make has been made in accordance with the standing orders of the parliament seems to me to be going far too far.

I should have thought that if any member of the Scottish parliament attempted to make subordinate legislation outwith the standing orders of the parliament, the parliament itself would have something fairly severe to say on the matter. That is where the matter should rest.

It seems to me to be a continuation of what I said on Tuesday about the "twins Mackay" appearing to be very keen to find out always what the Scottish parliament might be doing and telling it to stop it. We should have greater trust in the procedures of the parliament.

Lord Mackay of Drumadoon: Yet again, I take the gentle chastisement of the noble Lord, Lord Steel. However, there are cases in the law reports where subordinate legislation made by Ministers of the United Kingdom Government has been successfully challenged because the correct procedure has not been followed, despite the wealth of experience of those Ministers, their officials and the very experienced and helpful Clerks of the two Houses of this Parliament.

Therefore, these amendments seek to establish answers, and I wish to be quite clear that I have the correct answers. If I have not, I should be extremely grateful to the noble and learned Lord the Lord Advocate if he will write to me about the matter.

As I understand the approach which is advanced, it will be for the Parliament to decide what are its standing orders. No challenge in the courts would be competent. Certainly if such a challenge were made, it would not be a devolution issue as to whether standing orders comply with the Act of Parliament, as it will become.

Secondly, I understand that the effect of Clause 27(5) is that the courts would not entertain a challenge to the vires of an Act of the Scottish parliament based upon a failure to follow standing orders because that would be acting in breach of the cryptic way in which it is put, which is of course the correct way; namely, that every Act of the Scottish parliament shall be judicially noticed.

Thirdly, I understand that it would be competent for somebody to challenge subordinate legislation but if he chose to do so and raised the legal issues which are

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identified in the three amendments--Amendments Nos. 291GJ, 291GK and 291GKA--those would not fall to be considered to be devolution issues. Therefore, those matters would be raised in judicial proceedings which could ultimately end in a hearing before the Appellate Committee of your Lordships' House.

I shall obviously reflect extremely carefully as to whether that is a sensible approach. But my initial reaction is that it is not, because it is perfectly possible to imagine a situation in which somebody adversely affected by subordinate legislation--for example, the Scottish equivalent to the beef on the bone regulations--seeks to challenge the vires of the regulations on a variety of grounds. Some of them may well be devolution issues and some may not be. That is a matter of some practical concern which reinforces the value of examining the issues mentioned by the noble and learned Lords, Lord Wilberforce and Hope, earlier this afternoon.

I hope that I have followed the matter correctly. I am grateful to the noble and learned Lord for explaining the matter to the Committee. My very helpful friend Lord Mackay of Ardbrecknish has been to the PPO and has now furnished me--

4.15 p.m.

Lord Hardie: Before the noble and learned Lord withdraws his amendment, perhaps I should just deal with the points raised by the noble Lord, Lord Renton, and the noble and learned Lord, Lord Hope. I shall consider between now and Report any way in which to make the position clearer and I take on board the concerns of the noble Lord, Lord Renton.

As regards the point raised by the noble and learned Lord, Lord Hope, I understand that the ultimate destination of cases may alter according to the nature of the issue. But initially, a party litigant would raise his proceedings in a Scottish court, either in Scottish proceedings or separately in a Scottish court. The court would then decide whether it was a devolution issue. The ultimate destination of that case, if it were a devolution issue, would be the Judicial Committee of the Privy Council whereas, if it were not, it would be a matter for the Appellate Committee of your Lordships' House.


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