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Lord Mackay of Drumadoon: My Lords, I am grateful to the noble and learned Lord. He has certainly clarified the matter, although not quite in the way that I anticipated. As I understand his answer, it is to the effect that the Government do not exclude the possibility of legal liability and a liability in damages being established in an appropriate case, however unlikely that might be. However, as the purpose of tabling the amendments has been served, I beg leave to withdraw Amendment No. 119A.

Amendment, by leave, withdrawn.

[Amendment No. 119B not moved.]

Clause 31 [Scrutiny of Bills by the Presiding Officer]:

[Amendment No. 120 had been withdrawn from the Marshalled List.]

Lord Sewel moved Amendment No. 121:

Page 15, line 37, leave out from beginning to ("Bills") in line 38 and insert ("It is for the Presiding Officer to submit").

The noble Lord said: My Lords, in moving this amendment I shall begin by speaking also to Amendments Nos. 122 and 124. The Government have brought forward these amendments after being convinced by the arguments that we heard at an earlier stage of the Bill which were offered by the noble and learned Lord, Lord Mackay of Drumadoon. I hope that the amendments virtually establish--in fact, entirely establish--what he sought to achieve at that time.

The amendments turn subsections (3) to (6) of Clause 31 into free standing duties. At present, the clause is written in terms of provisions which are required to be contained in standing orders. During the debate on this clause in Committee, noble Lords proposed that these would be better dealt with on the face of the Bill. We took the matter away, considered the arguments and, I am happy to say, found merit in the latter. We have, therefore, brought forward these amendments in order to capture what was requested.

Amendment No. 126 is a technical drafting amendment which will ensure that references to legislative competence are consistent. I shall not anticipate Amendment No. 129 because I am afraid I do not have particularly good news in that respect. Nevertheless, I beg to move Amendment No. 121.

The Earl of Mar and Kellie: My Lords, these government amendments represent a welcome revision of Clause 31. Indeed, the amended clause is certainly

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easier to read. Therefore, I can conclude that the amendments moved in Committee were useful catalysts for revision. The proposed procedure now seems straightforward.

I continue to believe that the opposition parties will pounce on anything that is, or seems to be, ultra vires. That action would be in the form of identifying incompetence by a member of the executive or by a Back-Bencher. Perhaps I should modify the expression "opposition parties" in the light of the hopes for consensual politics--or, possibly some hope. Perhaps the phase "non-executive parties" would be more in keeping. These government amendments have tidied up the clause and made it far less contentious.

Lord Mackay of Drumadoon: My Lords, I can certainly confirm that I welcome the government amendments which meet the points that I raised in Committee. I believe I was less than charitable on that occasion about the generosity of the noble Baroness, Lady Ramsay, and I withdraw unequivocally any criticisms that I then proffered. I am also grateful for the fact that Amendments Nos. 119 and 120 were withdrawn from the Marshalled List. I do not need to go into the background of that, but I pay tribute to the noble Lord, Lord Sewel, and his colleagues for recognising the point that was raised through the usual channels on these matters.

Amendment No. 129 addresses a matter raised by the noble and learned Lord, Lord Rodger of Earlsferry, when we debated the role of the presiding officer under Clause 31. On that occasion, your Lordships will recall that subsection (2) of that clause was altered from the way that it was set out in the original Bill. The noble and learned Lord suggested that the presiding officer should also be given the right to refer a Bill to the Judicial Committee for the purposes of pre-legislative scrutiny in the same way that is now proposed for the Advocate General, the Lord Advocate or the Attorney General. I fully anticipate that there may well be an attempt in another place to restructure Clause 31 in some way so as to accommodate the Government's views on the matter. But who can say what will happen to such an attempt?

Your Lordships are faced with Clause 31 in its present terms. On considering the Bill at a pre-legislative point, the Advocate General, the Lord Advocate, or indeed the Attorney General may consider it to be of value to refer the issue as to whether the Bill or any of its provisions is within legislative competence to the Judicial Committee. Therefore, it seems to me that the presiding officer--who, under the Bill, has a similar duty--should have a similar privilege of a right of reference. That is why, when we reach that stage, I intend to move Amendment No. 129.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 122:

Page 15, line 39, leave out from beginning to ("not") and insert ("The Presiding Officer shall").

On Question, amendment agreed to.

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Lord Steel of Aikwood moved Amendment No. 123:

Page 16, line 2, leave out ("Judicial Committee") and insert ("Constitutional Court").

The noble Lord said: My Lords, I should confess at once that I am slightly embarrassed by the absence of my noble friend Lord Lester, who is supposed to be moving this amendment. However, I understand that he is en route to the Chamber. Indeed, we have made such astonishingly fast progress on the Bill this afternoon that he has been caught out.

In Committee I said that at Report stage we would introduce a major amendment to establish in effect a constitutional court by which we mean to update the present procedures of the Judicial Committee of the Privy Council. The whole string of amendments which we are now discussing are mainly paving amendments to Amendment No. 206 on the Marshalled List which sets out a proposed new schedule to establish what we prefer to call a constitutional court.

My noble and learned friends have been active on the Northern Ireland Bill and are proposing a similar provision within that Bill. We are trying to tidy up what seems to be a piecemeal approach by the Government to this whole question of dealing with possible conflicts between the devolved parliaments and this Parliament after devolution. Because the Government have proceeded in a piecemeal fashion with the Wales Act, the Northern Ireland legislation and this legislation, no one appears to have given serious thought to establishing a proper constitutional court, as is common in most countries with devolved parliaments. We are relying instead on our ancient use of the Judicial Committee of the Privy Council. Although I am a member of the Privy Council I must admit that I have never met the Judicial Committee. However, I understand it is a large body with about 30 members-- I stand open to correction--and consists of all the current serving and retired Law Lords, and that at any time any small number of these may be appointed to hear any particular case.

We propose that this rather large, amorphous body should be slimmed down and made more precise and that a constitutional court should be drawn from nine members of the Judicial Committee of the Privy Council. We propose that no fewer than four of these should be people who hold, or have held, high judicial office in England; that no fewer than two of them should hold, or have held, high judicial office in Scotland; and that at least one member of that nine should be someone who holds, or has held high, judicial office in Northern Ireland. We propose that on any one particular case:

    "No fewer than five members of the Court (including at least one member who has held high judicial office in Scotland) shall sit to hear any proceedings under this Act".
I have not studied the Northern Ireland Bill, but I believe that my noble and learned friends have proposed a similar provision in that Bill as regards the member from Northern Ireland.

We then propose that there should be a nominating committee of persons set out in our draft new schedule who should recommend duly qualified persons to Her Majesty for appointment as the president or members of

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the court. We suggest that that nominating committee should consist of the Lord Chief Justice of England, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, the Lord President, the Lord Justice Clerk, the Lord Chief Justice of Northern Ireland, two persons appointed by the Speaker of the House of Commons, at least one of whom should be resident in Wales, one person appointed by the presiding officer of the Scottish parliament, and one person appointed by the presiding officer of the Northern Ireland Assembly. We have set out other self-explanatory provisions which relate to age limits and the qualifications of the court.

This is a serious attempt to stimulate a general debate on how we deal with constitutional disputes in the new era when we will have these three devolved assemblies or parliaments operating within the United Kingdom. I hope that we shall at least have a fruitful discussion on them. I beg to move.

6.15 p.m.

Lord Fraser of Carmyllie: My Lords, I appreciate the difficulty in which the noble Lord, Lord Steel of Aikwood, finds himself and I do not wish to add to that difficulty. However, there is one aspect of the proposal on which I seek clarification before I can reach any conclusion on it. I refer to the nominating committee for the constitutional court. The noble Lord has described the office holders which I would properly envisage would make up such a nominating committee. However, if you are a member of that nominating committee, can you sit on the constitutional court? It seems to me to be a rather startling proposition that you could nominate yourself. It seems to me that a number of those mentioned in paragraph eight of the proposed new schedule would be eminently suited to sit on a constitutional court. However, it would be odd if they could effectively appoint each other to be participants in that court.

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