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Lord Mackay of Drumadoon: I shall reflect on what the noble and learned Lord said. In particular it would be helpful to consider his reply in the light of the documents which have now come to hand. The expense involved is a matter to which we shall return shortly. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 291J:

Page 88, line 5, at end insert--
("33A. Where a court or tribunal refers a devolution issue for determination in terms of paragraph 33 above, the person making the request for such a reference shall pay all legal expenses of any parties that subsequently take part in any proceedings before the Judicial Committee for the determination of the judicial issue referred.").

The noble and learned Lord said: I do not intend to move or speak to Amendment No. 291K. I shall confine my remarks to this one amendment. It concerns the additional legal expenses which will be incurred by other parties if one of the Law Officers mentioned in paragraph 33, which we have just been discussing, exercises his right to require a court to refer a devolution issue directly to the Judicial Committee.

As I indicated, the other parties to the proceedings may be perfectly content to have the dispute resolved by the lower courts even if a devolution issue is involved. They may agree that there are two sides to the argument and they want an independent adjudication upon it. Whether that comes from the sheriff court or the Lord Ordinary in the Court of Session, they would be quite content with that and would not wish to become involved in a paragraph 33 reference. In so far as such a reference would take place during the course of the proceedings which might then go back to the sheriff court or the Court of Session, they would really have little alternative but to remain involved and the question of additional expense would undoubtedly occur.

Paragraph 36 of Schedule 6 deals with the question of expenses. I am not entirely clear that it would have application in a situation where, against their will, the lay parties to proceedings were taken to the Judicial Committee under paragraph 33. In such circumstances if, for the reasons fully explained by the noble and learned Lord the Lord Advocate, in the public interest or a specific law officer felt that it was important that the devolution issue be resolved at Judicial Committee level because of its ramifications, whether throughout Scotland or the United Kingdom, in order to avoid any dangers arising from conflicting decisions by lower courts--possibly in different legal jurisdictions altogether--it is equitable that the other party should be entitled to cover any additional expense, taxed of course by the taxing master or the auditor of the court. I beg to move.

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4.30 p.m.

Lord Hardie: I fully understand and sympathise with the thinking behind Amendment No. 291J. Despite that, I am not able to accept it, for this reason. Traditionally expenses are left to the discretion of the court, including the Judicial Committee of the Privy Council. The court will take into account the question of whether or not it is a test case. In your Lordships' House it is not unusual for such situations to arise when, even in cases where the Government are successful, the Government bear the expenses of the case or certainly the unsuccessful party does not have to pay.

We can trust the courts on this matter and I invite the noble and learned Lord to withdraw the amendment, leaving the issue of expenses to the discretion of the court. Clearly, if the court was of the view that a party had become embroiled in an issue of this sort which was not of their own making, that would be another factor as to who paid the costs. If it was a spurious matter as to whether the party was to blame for the devolution issue being raised in the first place, the Judicial Committee may wish to provide a sanction on expenses.

Baroness Carnegy of Lour: While the noble and learned Lord the Lord Advocate was speaking, I was thinking of the parties who might get trapped in this situation and was trying to follow the argument. Can he say whether the parties would know in advance whether or not their expenses would be paid? If not, it would not fulfil its purpose. People may be put off going to court if there is any doubt. Perhaps the noble and learned Lord should look at the previous amendment and consider whether or not there is virtue in looking at the system to make sure that that does not happen.

Lord Hardie: It is not the intention of the Government or the Bill to put anyone off raising issues which are clearly devolution issues. The short answer to the question raised by the noble Baroness, Lady Carnegy, is that one can never be certain in advance that the expenses will be met, unless an undertaking is given.

It may be, if the Lord Advocate or Advocate General of the day feels that it is an issue which should be aired and he accepts that it is not appropriate for the party to bear the cost, at that point the law officer may well say, "I am anxious to have this matter tested and we will of course meet the whole expenses of the case". However, there will be other cases where a devolution issue arises because of an action which has been raised by a party and which, even in the course of the litigation, may be raised by the party himself or herself as a side issue which then comes into focus. In that situation it may well be that the party has taken on the cost of the litigation and the risk associated with all litigation. This is therefore a matter which ought to be left, as it has been for centuries, to the discretion of the tribunal court hearing the case.

Lord Mackay of Drumadoon: While sitting listening to the noble and learned Lord's explanation of the Government's position which, I am sure he will appreciate, comes as no surprise--he would not wish to burden his successors in office and the other law officers with a huge volume of expense--it struck me that there

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may be scope for amending paragraph 36. That might give encouragement to the Judicial Committee to look favourably at a party who ended up being brought to that committee under a paragraph 33 reference. It may be helpful therefore if I give notice that I anticipate tabling an amendment to that effect at Report stage. However, in the light of what the noble and learned Lord said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 291K not moved.]

Schedule 6, as amended, agreed to.

Clause 92 [Legislative powers to remedy ultra vires acts]:

Baroness Ramsay of Cartvale moved Amendment No. 291KA:

Page 43, leave out lines 35 and 36 and insert--
("(a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament which is not, or may not be, within the legislative competence of the Parliament, or").

The noble Baroness said: Before turning to the detail of government Amendment No. 291KA, perhaps it would be helpful if I explained why the Government consider the provisions in clause 92 are necessary.

Clause 92 enables provision to be made by subordinate legislation consequential upon any ultra vires provision of an Act of the Scottish parliament or an ultra vires exercise of a function by a member of the Scottish executive. The power to make subordinate legislation is exercisable by Her Majesty by an Order in Council or by a Minister in the UK Government.

Clause 92 provides a means by which problems resulting from ultra vires provision of Acts of the Scottish parliament or actions of a member of the Scottish executive may be quickly remedied. It allows subordinate legislation to make such provision as is considered necessary or expedient to correct the problem. The subordinate legislation which does this may be retrospective in effect and it may amend any enactment including an Act of the Scottish parliament or secondary legislation under the parliament's authority. However, a determination by the courts that a provision or action is ultra vires is not a prerequisite for the use of this power. It could be used to remedy a defect or a suspected defect before judicial proceedings were commenced thereby avoiding the necessity for them.

This clause envisages that there may be a need to sort out the consequences of ultra vires legislation quickly. Usually the Act or subordinate legislation would be referred back to the Scottish parliament to reconsider. However, there will be circumstances where it would be outwith the legislative competence of the Scottish parliament to legislate to pass any necessary consequential provision. That would have to be done by the UK Parliament and in some cases it may be very desirable that it can be done quickly. Clause 92 makes express provision for that.

I turn now to the detail of government Amendment No. 291KA. This makes it clear that the UK Government can make subordinate legislation under Clause 92 in consequence of an Act or any provision of an Act not being within the legislative competence of the parliament.

8 Oct 1998 : Column 593

It also, however, removes from the scope of Clause 92 power to remedy ultra vires provision made by persons other than the members of the Scottish executive under an Act of the Scottish parliament. The power is intended to deal with the consequences of the parliament or the executive acting outwith their powers. Remedying the consequences of ultra vires actions by other persons acting under an ASP will be a matter for the parliament itself. I beg to move.

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