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Lord Sewel: I think there is one thing that we are all agreed on, and that is that things are not always easy. That is certainly true of this part of the Bill. The Government do not accept Amendment No. 292EA, which would alter the binding nature of decisions of the JCPC in relation to the House of Lords. The Government believe that it is important that the decisions of the JCPC are binding in all legal proceedings other than proceedings before the JCPC itself. Amendment No. 292EA would mean that they were not binding upon this House, and we do not accept that position.

Devolution issues will seldom be decided by this House. In normal circumstances, under Schedule 6 of the Bill any devolution issue which arises in judicial proceedings in this House will be referred to the Judicial Committee unless this House considers it more appropriate that it should determine the issue itself. We think it is appropriate that this House should not be able to depart from the earlier decisions made by the JCPC. We believe that the JCPC is ideally placed to resolve disputes about vires. It has a vast experience of dealing with constitutional issues from the Commonwealth, making the provision that the JCPC's decisions of the highest status will ensure that clear decisions with a clear status are produced and that devolution issues are treated consistently. That is the advantage behind the line that we are advocating.

Regarding Amendment No. 292EB, I find myself in very close agreement with the noble and learned Lord, Lord Hope of Craighead. The factual position has been outlined by the noble and learned Lord, Lord Mackay of Drumadoon, and I think from there on that it is really a matter for the court itself to decide matters on its own basis, and let practice and convention develop within the court.

Regarding Amendment No. 292EC, again I fall back on the point which was expressed by the noble and learned Lord, Lord Hope of Craighead. We have his explanation of what the effect of a case being decided on a concession would be, and I am prepared to rest on that.

Lord Mackay of Drumadoon: The noble and learned Lord has dealt briefly with the three amendments, and I anticipate that at Report stage we may have more to say about the issue which lies behind

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the first of the amendments. I am grateful to the noble and learned Lord, Lord Wilberforce, for giving a quite fascinating contribution to our debate.

As far as the second amendment is concerned, I fully accept, as I indicated at the outset, that this is a matter which would fall to be done by Order in Council. I do not think at the present time it is left entirely to members of the Judicial Committee themselves, and indeed the draft of the order that we have indicates that it will be Her Majesty's Council that decides on procedure, as apparently Her Majesty's Council has decided in the past about the issue of dissenting opinions.

I listened with fascination to what the noble and learned Lord said about the possible undesirability of allowing dissenting opinions and, if I may say so, his concern that this might prevent judges being drawn into political controversy. It certainly struck a chord with one or two of the matters I have been arguing earlier.

As regards Amendment No. 292EC, obviously I understand and accept the views that have been expressed and I will draw this to the attention of the High Court judge in Scotland. I thought it was very necessary that this issue should be addressed, and we clearly have done that. I beg leave to withdraw Amendment No. 292EA.

Amendment, by leave, withdrawn.

[Amendments Nos. 292EB, 292EC and 292ED not moved.]

The Earl of Mar and Kellie moved Amendment No. 292F:


Page 44, line 37, at end insert--
("(d) provide such resources to the Judicial Committee as Her Majesty considers necessary or expedient.").

The noble Earl said: We have already heard about the possible need for alteration of the structure of the Judicial Committee of the Privy Council. Now I should like to move Amendment No. 292F, which has the purpose of ensuring that the Judicial Committee, or whatever it is to become, is adequately funded and resourced for its new devolutionary responsibilities. Although we hope that this function will not be exercised very often, it may be. We do not know how much work will come from this new source, but I believe that we should make sure that a suitable resources package is developed to meet the needs of the Judicial Committee. It will be important that devolution issues are dealt with speedily and are not caught up in a logjam, which itself might be the result of inadequate resources. I beg to move.

Lord Sewel: I understand why the noble Earl has tabled this amendment, but I can assure him that it is totally and utterly unnecessary. The government of the day would always make sure that sufficient resources were available for the Judicial Committee to do its job. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.

Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, am I right in thinking that when

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members of the Judicial Committee of the Privy Council sit in that committee they are not actually paid for doing so?

Lord Sewel: There may still be costs incurred in their deliberations.

6.30 p.m.

The Earl of Mar and Kellie: I am almost content with what the Minister said. I believe that in the event of hostility between the two parliaments, there may be a rash of devolution issues to be decided. However, having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 94 agreed to.

Lord Mackay of Drumadoon moved Amendment No. 292ZFA:


After Clause 94, insert the following new clause--

Protection of the Parliament from interdict or injunction

(" . No court shall pronounce any interdict or injunction against the Scottish Parliament or any of its committees restraining the Parliament or any of its committees from holding any proceedings or considering or deciding any item of business at such proceedings.").

The noble and learned Lord said: In moving this amendment I shall speak also to Amendments Nos. 292YFA, 292XFA and 292WFA. The first of these amendments raises the issue of interdicting the parliament and its committees from holding any proceedings or considering or deciding any item of business at such proceedings. That occurs from time to time in relation to the proceedings of local authorities. It is certainly not unknown where, in anticipation of a meeting taking place, one or more parties, whether or not they be members of the authority, seek to obtain a court order preventing the meeting taking place. Frequently that has been done at the eleventh hour with media in attendance to ensure maximum publicity for what is going on.

I raised the matter in the course of the proceedings on the Government of Wales Bill. I understood it to be accepted that in that regard it would be competent. It strikes me that that may be part of the whole issue of parliamentary privilege which I know the Minister undertook to look at before Report. It is an issue on which I am awaiting a statement in the light of what was said on 28th July.

Lord Sewel: I thank the noble and learned Lord for giving way. Perhaps I may indicate that the Government have considerable sympathy with the arguments advanced in this area. It is a matter of some difficulty and complexity. We recognise the possibility of amending the Bill and are considering actively what amendments we can bring forward at a later stage.

Lord Mackay of Drumadoon: Perhaps I may invite the Minister to indicate whether that will cover also Amendment No. 292WFA, an issue raised by the noble and learned Lord, Lord Rodger of Earlsferry, as to whether the court could pronounce orders for the

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Scottish executive to introduce a Bill to parliament or make subordinate legislation and an order requiring parliament to pass legislation. It seems to me that that is in the same area. Perhaps the Minister can indicate, on an entirely without prejudice basis, that he will consider also Amendment No. 292WFA. I beg to move.

Lord Sewel: I have indicated clearly that it is highly likely that we shall be bringing forward amendments in relation to the earlier points raised by the noble and learned Lord. I cannot make that commitment as strongly with regard to Amendment No. 292WFA but I am prepared to look at the matter.

Lord Mackay of Drumadoon: I have a concern in relation to Clauses 6(6) and 8 of the Human Rights Bill. It would be competent for the Scottish executive to be ordered by a court to present a Bill to parliament and competent for the Scottish parliament to be made the subject of an order requiring it to pass such a Bill. Similar orders could be pronounced in relation to subordinate legislation.

As I indicated, that issue was raised by the noble and learned Lord, Lord Rodger of Earlsferry, on 28th July at col. 1368 of the Official Report when he drew attention to the need to make sure that the provisions of the two Bills--the Human Rights Bill and the Scotland Bill--were compatible. The point he made at that stage was not responded to by the Minister. I understand from checking with the Library that no letter has been written in relation to the matter. I am concerned that it should be addressed further. It may arise also under Clause 54 concerning the powers of the Secretary of State which we have discussed on a number of occasions.

In view of the anxiety to move on to other business in due course, I shall not say anything further at this stage. However, it is clearly a matter to which we must return on Report. We may also return to the other points I have raised.


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