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Lord Sewel moved Amendment No. 138:

After Clause 36, insert the following new clause--

Proceedings by or against the Parliament etc

(".--(1) Proceedings by or against the Parliament shall be instituted by or (as the case may be) against the corporation on behalf of the Parliament.

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(2) Proceedings by or against--
(a) the Presiding Officer or a deputy, or
(b) any member of the staff of the Parliament,
shall be instituted by or (as the case may be) against the corporation on his behalf.
(3) In any proceedings against the Parliament, the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) but may instead make a declarator.
(4) In any proceedings against--
(a) any member of the Parliament,
(b) the Presiding Officer or a deputy,
(c) any member of the staff of the Parliament, or
(d) the Parliamentary corporation,
the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) if the effect of doing so would be to give any relief against the Parliament which could not have been given in proceedings against the Parliament.
(5) References in this section to an order include an interim order.").

The noble Lord said: My Lords, as I mentioned on the first day of Report in the debate on an earlier group of amendments about the validity of acts of various office holders, these amendments together with Amendment No. 138 are part of the results of our consideration of your Lordships' concerns that the parliament should be able to go about its business without undue interruption from the courts. Noble Lords made it clear that the Bill should say more about this than was contained in the Bill at an earlier stage. I hope noble Lords will agree that this is what this new clause achieves.

I hope it is reasonably self-explanatory. The new clause will restrict the remedies which may be granted against the parliament. We judge that it would be wise to ensure that no court may make an order for suspension, interdict, reduction or specific performance, or another like order, nor should it be able to make any interim order. We think this provides a broad protection against attempts to manipulate the business of the parliament via the courts. We hope that this will go a considerable way to assuaging the concerns expressed by noble Lords at earlier stages.

We do not think that we can put the parliament completely above the courts. For that reason we have left open to the courts the option of making a declarator. It will, of course, be for the parliament itself to decide how it should react to any such declarator. The parliament would not be liable for contempt of court if it merely decided to take no action to give an effect to a declarator. Rather, it will essentially be a political decision for the parliament to decide how to react in such cases. We believe the parliament will wish to be seen to be upholding the law and in most cases would expect it to comply with any court judgment, in particular any which directly affects the civil rights of individuals, for example, concerning the legitimacy of the withdrawal of rights and privileges of an MSP.

However, there may be circumstances in which it would be reasonable for the parliament to decide to take no action, notwithstanding the declarator to the effect that the parliament had acted unlawfully. For example, where a Bill which is nearing the end of its legislative passage is held not to have complied with some

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technical provision of standing orders about the procedures for introducing a Bill, it might be perfectly reasonable in those circumstances for the parliament to press on with that Bill, secure in the knowledge that the resultant Act could not be challenged because of the defect in procedure.

We think that this strikes the right balance for a body which has to be both free to go about the business of law making while not actually being above the law. We have also taken the opportunity in the new clause to prevent actions being pursued by the back door, against individuals associated with the parliament.

Finally, it may be helpful if I make it clear that under the Bill as presently drafted, and as we propose that it should be further amended, the parliament would have considerable competence to legislate about its protections from judicial proceedings. We intend to bring forward amendments to Schedule 4 which will make it clear that those parts of the Bill which deal with protection from judicial proceedings--namely, Clause 37 dealing with contempt of court, Clause 38, which provides some protection in the context of defamation, and the new clause in this amendment--may be modified by the parliament. I will explain the effect of those amendments in more detail when we come to debate them. However, the intention is that they would ensure that the parliament would have considerable scope to develop its own protections in the light of experience.

The parliament would, for example, be able to provide that certain types of proceedings could not be brought against it at all. However, it could do that only within the competence provided by the Bill. It could not, for example, make such provision as would infringe rights conferred by the proposed human rights Act, since it is prevented from doing so by Clause 28(2)(d). Noble Lords will appreciate that that is a significant point in its own right.

I am conscious that this is a potentially large and complex subject. I hope noble Lords will agree that we have the balance about right. We have concluded that we cannot justify attempting to mirror Westminster privileges. Those privileges are wide-ranging and in certain respects apply for largely historical reasons. We recognise, however, that the parliament needs protection. We believe that the collection of privileges that we now propose to provide, taken together with the proposed amendments to clarify the scope of the parliament's power to legislate on this matter, is the appropriate way to proceed. I hope that noble Lords will agree. I beg to move.

Baroness Carnegy of Lour: My Lords, this is an interesting matter. The noble Lord said that future amendments will allow the parliament to increase its own protection. He also said that he did not think it right that the parliament should have privilege in the way that this Parliament does. Does that mean that the amendments that he will bring forward will prevent the parliament having the kind of privilege that this

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Parliament has? Will there be boundaries as regards the scope that the parliament has for further legislating for its own protection?

The Earl of Mar and Kellie: My Lords, I wish to ask a question about the office holders mentioned in subsections (2) and (4). I wonder whether the words, "acting in their capacity as such", have been accidentally omitted. Without those words, I suspect that the individuals may end up being somewhat over-privileged.

Lord Mackay of Drumadoon: My Lords, I welcome this amendment. It undoubtedly meets one of the major concerns that I have expressed on more than one occasion in relation to the Bill as presently drafted. I have referred to the fact that in local authority affairs it is not uncommon for interdict proceedings to be raised for the purposes of trying to prevent a meeting taking place or an item of business being considered. I sought to persuade your Lordships and the Government that that would be highly undesirable in the affairs of the new parliament. I very much welcome the fact that that point is recognised in this amendment. It also covers other issues such as suspension, reduction or orders for specific performance.

I am grateful for the very detailed explanation of the Government's position lying behind this amendment, touching as it does on the attitude to the extension to the Scottish parliament of the concept of parliamentary privilege as enjoyed by this Parliament. That statement and the statement made earlier in relation to Amendment No. 112 will be of great assistance to me and, I suspect, other Members of this House when we consider Amendment No. 192B next week.

I hope it does not sound churlish if I say that I do not believe that the amendment goes far enough, but I welcome the stage that it has reached. I am sure it will be of great benefit not only to parliamentarians but to the courts in the years ahead.

Lord Sewel: My Lords, I thank the noble and learned Lord, Lord Mackay of Drumadoon, for what he said. I hope that we have got the balance about right. There may be nuances either side of the line, but broadly we have it right. In relation to the remarks of the noble Earl, Lord Mar and Kellie, I do not believe it is necessary to put in wording such as "in their capacity as presiding officer". The protection afforded to them would not protect them in relation to a private matter. The whole context of the clause makes it clear that it is in relation to the parliament. I believe that it is all right.

As for the point made by the noble Baroness, Lady Carnegy, we are not creating a situation where the parliament would have identical privileges to those enjoyed by this Parliament. The privileges enjoyed by this Parliament to an extent flow from history and the fact that the Parliament starts as a court. The limitations are those to which I referred in terms of Clauses 37, 38 and the new clause, so there is a limitation on the extent

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to which the parliament could accrete to itself new privileges. It is likely to be more helpful if we delay the provision until Schedule 4. I commend the amendment.

On Question, amendment agreed to.


Clause 40 [Calculating time for meeting of the Parliament]:

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