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Lord Hardie: Again, I can understand the reasoning behind the amendment and, indeed, have sympathy for the noble and learned Lord's views. However, as the amendment stands, it would require the court to give effect to its decision on the competence of an Act of the Scottish parliament or the making of subordinate legislation and bind the inferior court to that decision in the particular case in which the decision was made. As

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the noble and learned Lord pointed out, the court could not suspend the effect of its decision, or take any other steps which are available, in terms of the clause as drafted.

Therefore, the amendment would limit the court's discretion in exercising the power conferred by the Bill in relation to a particular criminal case and would leave the court with a restricted power as to what it could do. I understand that the noble and learned Lord's point is that different considerations ought to apply in criminal cases. However, the Government believe that it is important that courts should have the power to suspend the effect of the decision to give a chance for the defect to be remedied.

I entirely agree with the point raised by the noble and learned Lord towards the end of his argument; namely, that it is almost inevitable in the situation he was considering for there to be a breach of human rights. If that is the case, the court would not take any steps to suspend the legislation or to delay it. Indeed, in the almost inevitable case, it would be a clear breach of human rights legislation. That would be a good reason for the Court of Appeal to quash any ultimate conviction.

Of course, there may be an exceptional case but it is difficult to imagine what it might be. Nevertheless, there may well be exceptional cases where it is appropriate for the court to say, "Well, there is a defect here but it is a fairly technical matter. It is in the interests of justice that the opportunity be given to remedy it". It is that very exceptional situation that the clause is intended to address. Clearly the clause is mainly directed toward civil cases where people have acted upon certain legislation to their prejudice, and so on.

Lord Mackay of Drumadoon: I am looking hopefully in the direction of the noble and learned Lord, Lord Hope, to see whether he has anything to say. Indeed, I am happy to see him rise to speak.

Lord Hope of Craighead: With the greatest respect, I gained the impression that the noble and learned Lord the Lord Advocate was perhaps addressing two amendments and not one, although I may have misunderstood him. There are two issues involved. The first is a criminal point which has been addressed. For my part, I can see that there would be some value in the court having a discretion. One cannot foresee the niceties that may arise in some of these issues. I would rather rely on the discretion of the court, informed of course by human rights case law, rather than tie the court down as proposed in the amendment.

As regards the other matter, which has not perhaps been addressed--namely, the matter of deferring the effect of an order for a period of time--that is something which I thought the court in civil proceedings would be able to do within its existing jurisdiction. I know that the German constitutional court adopts that approach when such issues come before it. I have no doubt that the courts in this country would wish to follow that

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example. However, that is anticipating an amendment which I believe the noble and learned Lord will move shortly.

Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord, Lord Hope, for his contribution, and indeed to the noble and learned Lord the Lord Advocate for his response. I have to say that I remain slightly concerned because, after consideration of what I said, as well as bearing in mind the remarks of the noble and learned Lord, Lord Hope, and the response of the Minister, it seems to me that none of us can find an example in which it would be appropriate in the context of a criminal case for a judge to make either an order suspending "retrospective effect" or in some way to stay or interrupt the proceedings to allow new legislation to be made or enacted.

While the noble and learned Lord, Lord Hope, is quite correct to say that one can never anticipate what will happen in the future, that argument can, to some extent, be deployed both ways. Nevertheless, I shall certainly reflect on what the Minister said. Having reconsidered the matter, I suspect that I will raise it again on Report. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Lord Mackay of Drumadoon moved Amendment No. 291P:


Page 44, line 1, leave out subsection (2) and insert--
("(2) The court or tribunal may, if it has decided that an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, suspend acting upon or giving effect to any such decision for such period not exceeding six months, and on such conditions, as to allow the Scottish Executive and the Secretary of State to take such action as they deem appropriate.").

The noble and learned Lord said: In moving Amendment No. 291P I wish to speak also to Amendments Nos. 291Q, 291R and 291S. These amendments address the application of the provisions of Clause 93 in civil proceedings. They seek to limit the scope of the discretionary powers the courts are to be given when they reach the view that either the Scottish parliament or the Scottish executive has legislated beyond their competence.

As I have already indicated, for the first time the courts are to be given power to quash legislation which in the eyes of the general public is primary legislation in the sense that the layman in Scotland who is bound by the law, and bound by the law as it applies in civil proceedings, will treat legislation which has come out of this Parliament in exactly the same way as legislation which has been passed by the politicians elected to the Scottish parliament. It is important to bear in mind that this power which has been given to the courts will cover subordinate legislation made under powers which may arise under a Section 59 order.

It is quite clear to those of us who have from time to time had to consider this matter, whether as lawyers in practice or judges, that this is an extremely complex area of the law which at the present time has to be applied

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only when considering the vires of subordinate legislation made by the United Kingdom Parliament. As recently as April of this year, in an appeal which came to the Appellate Committee of this Chamber in the case of Boddington v. British Transport Police, the noble and learned Lords who constituted the committee which heard that appeal and delivered their opinions on 2nd April, had slightly differing views as to the state of the law. I shall not trouble the Committee with a detailed exposition of those views, but the noble and learned Lord the Lord Chancellor said,


    "Subordinate legislation ... is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred".
His clear view on the issue was--as sometimes happens in cases before the Appellate Committee of your Lordships' House--disagreed with by other noble and learned Lords, in particular the noble and learned Lords, Lord Browne-Wilkinson, and Lord Slynn of Hadley. I think it is fair to say that the law is in a state of some complexity and--if I may use this word as quietly as possible--there is dispute between Members of this Chamber who sit as Lords of Appeal in Ordinary and the noble and learned Lord the Lord Chancellor as to what is the state of the law.

As the noble and learned Lord, Lord Hope, has just observed, irrespective of what is set out in this Bill, the courts will have their existing powers to deal with issues that come before them. The existing law, whatever it is, will apply to Acts of the Scottish parliament unless it is explicitly amended by this Bill, and will apply equally to subordinate legislation unless the existing law is amended by the Bill. As I stressed earlier, it is important to bear in mind that in reviewing such subordinate legislation issues of vires will not be confined to the devolution issues as they are set out in Schedule 6.

I have a number of practical difficulties with the approach favoured by Clause 93, as regards deciding whether or not to make an order removing or limiting any retrospective effect, or an order suspending the effect of the decision to allow corrective action to be taken. How is the court to have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected? Is it intended that the courts should allow such persons to become parties to the proceedings, because if they did they and indeed the Lord Advocate or any other Minister or Law Officer who became convened to the proceedings at that stage would not, as I understand it, be entitled to go back to the beginning and re-argue the decision which had already been reached that the particular provision was ultra vires? That would be taken as read and one would move on to the next stage, the discretionary stage of whether or not to make such an order. There is the practical issue of what role the Law Officers will play. Will they represent the public interest or the interests of the executive body concerned, whether it be the Scottish executive or the British Government?

Most importantly of all, is it not an inevitable consequence of giving such discretionary powers to the courts that they will be drawn into possibly highly

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political decisions which will inevitably bring them much more into the public eye and into the mind of the media than many of them would wish, and indeed many politicians or members of the public would wish? The issue of whether in this situation a decision should have retrospective effect could be a highly political one in which the economic interests of one body may have to be balanced against the economic or possibly environmental interests of another. I firmly believe that these are decisions for politicians and not for the courts.

That is the practical concern I have. One approach, of course, is just to get rid of the clause altogether. In 1978 a similar amendment was moved in a Committee stage on 10th May 1978. I now refer to a name which will be familiar to the Committee from our discussions earlier this week. No less a person than the noble and learned Lord, Lord McCluskey, replied for the government on that occasion. He made it quite clear that the government's view then was that it would be highly dangerous to put anything on the face of the Bill to deal with the practical situation with which this clause is concerned. The noble and learned Lord said,


    "So far as civil cases are concerned, we believe it would be highly dangerous to depart from the well-known and well settled rules which I have outlined above. It would really be quite impossible to work out all the permutations that might result if one attempted to deal with all the various inequities which would be thrown up by an attempt to restore to his previous position everyone who had acted on the faith of a valid Scottish Assembly Act. Noble Lords may well consider that the present law achieves a broadly equitable result and that it would be dangerous to meddle with it".--[Official Report, 10/5/78; col. 1124.]
That is one approach which could be achieved by opposing that the clause stand part of the Bill.

The other approach, which is the approach taken in this series of amendments, is to seek to restrict the scope of the discretionary powers to be given to the court. That is what Amendment No. 291P seeks to achieve. It restricts the options to the one option of deferring for a period of six months. That deletes the provisions of the existing subsection (3) and sets out an alternative form in Amendments Nos. 291R and 291S as to what interests the courts should have regard to. It excludes in particular the interests of sections of the general public who could clearly argue a case, whether or not they entered into legal proceedings, that their interests would be adversely affected if the court proceeded to make an order one way or another. Again I seek to restrict to the bare necessity the extent to which the courts have a role to play. I believe that that is sensible for the future of Scotland. I fully accept that they have to have a role but suggest that it ought to be limited as far as possible.

To return to my comments in reference to the Boddington case, clearly the law is in a state of some uncertainty in this situation. It would be wrong to try to sort that out by means of legislative provisions which address only part of the problem--which may be what has been happening inadvertently in the existing Clause 93. Not for the first time, and I hope not for the last, there is force in the comments made by the noble and learned Lord, Lord McCluskey; namely, that it

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might be positively dangerous to meddle with or alter the law in this restrictive manner. At this stage, therefore, I beg to move Amendment No. 291P.


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