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Baroness Carnegy of Lour: My Lords, before the noble Lord sits down, can he clarify one point for me? What is the position of Her Majesty if the Bill is passed by the parliament, receives Royal Assent and then, some considerable time afterwards, is found to be ultra vires? What is the position of the Queen if she has given the Bill Royal Assent and it is found not to be valid?

Lord Sewel: My Lords, a timetable is set down for a challenge to the vires of a Scottish Bill. I do not think there is any way in which Her Majesty would be involved.

Lord Mackay of Drumadoon: My Lords, before the noble Lord sits down, can I ask him if that is correct? Surely a Bill is open to challenge indefinitely. Once a Bill becomes an Act of Parliament, an individual member of the public, who claims to be adversely affected by it, could raise proceedings and seek to have the Act reduced. That is one of the possibilities that lies ahead, once a Bill becomes an Act, after Royal Assent, as my noble friend Lady Carnegy said. She has raised a

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very interesting issue. I do not suggest that I know the answer to it, but if Her Majesty has given Royal Assent to a Bill that is ultra vires, quid juris?

Lord Sewel: My Lords, I have not quite got the drift of the point of the noble Baroness. The noble and learned Lord, Lord Mackay of Drumadoon, is quite right, it is open to challenge. But I do not see how that affects the position of Her Majesty at all.

Baroness Carnegy of Lour: My Lords, with the leave of the House, I am not a lawyer and I do not know all that much about the constitution, but it seems to me that in our system the ultimate accolade of a Bill is Royal Assent and it becomes law. Never before have I heard of anybody having to go and say to Her Majesty, "I am sorry, I have got this wrong. Will you please pull this back and do it again?"

Lord Sewel: My Lords, yes, the Queen grants Royal Assent--that is absolutely true--but the Queen is not involved if a Bill is challenged. Her role in approving a Bill passed by the Parliament is formal. She is not in anyway dragged into the argument about the vires or any matter like that.

Lord Mackay of Ardbrecknish: My Lords, my noble friend Lady Carnegy has raised an interesting point to which we may return. Possibly the Queen would be all right because the Government would make provisions and exercise some discretion in these matters--or the Home Secretary might exercise some discretion.

I was grateful to the noble Lord, Lord Mackie of Benshie, for saying that my amendment was a good suggestion at which he hoped members of the Scottish parliament would look. But he thought that not only was I nannying too much, but that the Government were nannying too much. He has a point. The Government cannot complain about my amendment when they have such a detailed clause in the Bill. It is almost a case of how far does nanny go.

The Minister seemed to agree that it would be sensible if the parliament heard from outside bodies during the legislative procedure which would improve the legislation, but that was for the parliament to provide these arrangements. He told me that the consultative steering committee would report by Christmas and give its suggestions. But they are only suggestions. With apologies to Alice, my question is: when is prescribing not being prescriptive? It would appear to be, "When I say so", according to Ministers. They cannot complain about me being prescriptive when they have Clause 34 here.

I am not convinced about this. If we have Clause 34(1) in the Bill, it is not a good argument to say, "Yes, we agree with what you are saying in your clause and that would be a good way for the Scottish parliament to proceed, but it is far too prescriptive". If Clause 34(1) was not in the Bill, I would understand that and I would settle back in my seat. But I am not sure that I do settle back comfortably in my seat. Before I make a decision, perhaps I should say that I fully accept Amendment No. 134 and the consequential amendments and I am content with the Government's

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arguments against my Amendment No. 134A. But I still feel that the points I make in my amendments are valid ones. If we are going to lay down processes in a Bill, I think we should lay down pre-legislative processes as well for a single chamber parliament. I am therefore going to seek the opinion of the House.

9.40 p.m.

On Question, Whether the said amendment (No. 133) shall be agreed to?

*Their Lordships divided: Contents, 37; Not-Contents, 85.

Division No. 2


Annaly, L.
Attlee, E. [Teller.]
Balfour, E.
Byford, B.
Carnegy of Lour, B.
Carnock, L.
Carr of Hadley, L.
Chalker of Wallasey, B.
Chesham, L.
Courtown, E. [Teller.]
Craigavon, V.
Crathorne, L.
Cross, V.
Darcy de Knayth, B.
Dixon-Smith, L.
Ellenborough, L.
Fookes, B.
Fraser of Carmyllie, L.
Henley, L.
HolmPatrick, L.
Kingsland, L.
Kintore, E.
Luke, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Middleton, L.
Montrose, D.
Northesk, E.
Norton of Louth, L.
Renton, L.
Rowallan, L.
Selkirk of Douglas, L.
Stodart of Leaston, L.
Strange, B.
Trefgarne, L.
Vivian, L.
Wise, L.


Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Borrie, L.
Burlison, L.
Carlisle, E.
Carmichael of Kelvingrove, L
Carter, L. [Teller.]
Castle of Blackburn, B.
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crawley, B.
Davies of Coity, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gordon of Strathblane, L.
Goudie, B.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Hardie, L.
Hardy of Wath, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Jay of Paddington, B. [Lord Privy Seal.]
Jeger, B.
Judd, L.
Kennedy of The Shaws, B.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
Maddock, B.
Mallalieu, B.
Mar and Kellie, E.
Milner of Leeds, L.
Monkswell, L.
Morris of Castle Morris, L.
Nicol, B.
Phillips of Sudbury, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Sainsbury of Turville, L.
St. John of Bletso, L.
Sawyer, L.
Sewel, L.
Simon, V.
Smith of Gilmorehill, B.
Steel of Aikwood, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomson of Monifieth, L.
Thurso, V.
Tomlinson, L.
Tordoff, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Whitty, L.
Williams of Mostyn, L.
Winston, L.
Young of Old Scone, B.

28 Oct 1998 : Column 2018

l. 2053]

Resolved in the negative, and amendment disagreed to accordingly.

9.49 p.m.

The Deputy Speaker (Lord Lyell): My Lords, before I call the next amendment I must inform the House that in a Division earlier this evening on Amendment No. 129, the numbers of those voting were Content, 40, Not Content, 85, rather than the numbers that were announced.

Lord Sewel moved Amendment No. 134:

Page 17, line 13, leave out subsection (2) and insert--
("( ) Subsection (1) does not prevent standing orders making provision to enable the Parliament to expedite proceedings in relation to a particular Bill.
( ) Standing orders may make provision different from that required by subsection (1) for the procedure applicable to Bills of any of the following kinds--
(a) Bills which restate the law,
(b) Bills which repeal spent enactments,
(c) private Bills.").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 134A and 135 not moved.]

Lord Sewel moved Amendment No. 136:

Page 17, line 18, at end insert--
("( ) a reference made in relation to the Bill under section 32 is withdrawn following a request for withdrawal of the reference under section (ECJ references)(2)(b),").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 137:

Page 17, line 24, after ("36(1)(a)") insert ("and paragraph 5 of Schedule 3").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

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