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The Earl of Kinnoull: My Lords, before the noble Lord sits down, can he say whether there would be a public inquiry into any proposal following the decision by the memorial committee, particularly if it involved the area just by Kensington Palace?

Lord McIntosh of Haringey: My Lords, I believe that that depends on the scope of the final proposals. As yet we are unaware of it. Clearly, if the proposals were to be significantly scaled down, as I suggested was likely, the demand for a public inquiry would be that much less.

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.26 to 8.35 p.m.]

Scotland Bill

Consideration of amendments on Report resumed.

Lord Mackay of Drumadoon moved Amendment No. 191B:

After Clause 93, insert the following new clause--

Reduction or suspension of provision of Act of Scottish Parliament

(" .--(1) This section applies to proceedings in which the party who raises the proceedings seeks an order for reduction or suspension (or other like order) of any provision of an Act of the Scottish Parliament or subordinate legislation made, confirmed or approved by a member of the Scottish Executive.
(2) Proceedings to which this applies may only be brought in an appropriate court or tribunal.
(3) In subsection (2) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and "proceedings" includes a counterclaim or similar proceeding.
(4) In subsection (3) "rules" means--
(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the

2 Nov 1998 : Column 93

Secretary of State for the purposes of this section or rules of court;
(b) in relation to proceedings before a court or tribunal in Scotland, rules made for the purposes of this section;
(c) in relation to proceedings before a tribunal in Northern Ireland--
(i) which deals with transferred matters, and
(ii) for which no rules made under paragraph (a) are in force,
rules made by a Northern Ireland department for those purposes; and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.").

The noble and learned Lord said: My Lords, this amendment seeks to insert a new clause into the Bill. It seeks to address a concern expressed by the Faculty of Advocates in a memorandum submitted to the Government some time ago and upon which I have already commented.

The purpose of the amendment is to create rule-making powers which would entitle either the Lord Chancellor or Secretary of State in England or Wales, the First Minister in Scotland or the procedure set out for Northern Ireland in subsection (4)(c) of the new clause to lay down the courts or tribunals in which there should be vested a power to reduce, suspend or otherwise set aside any provision of an Act of the Scottish parliament or any subordinate legislation made, confirmed or approved by a member of the Scottish parliament.

In a memorandum submitted to the Government, the Faculty of Advocates said that the then Clause 93 of the Bill could cause confusion as to the forum appropriate for the challenging of administrative acts and could restrict the scope envisaged by Clause 93(2). The Faculty said:

    "Legislation of the Scottish Parliament may be relevant in both England and Scotland and may affect considerable numbers of persons or businesses. It is therefore important that decisions taken in relation to the vires of legislation be consistent and be taken by courts of appropriate authority in each jurisdiction".

Referring to the position in Scotland, it said:

    "Having such decisions taken only by the Court of Session within this jurisdiction would promote this interest. It is inherently undesirable that all minor courts and all tribunals should have the power to quash the proceedings of the Scottish parliament".
The Faculty went on to recommend that the Bill be amended. Dealing with the situation in Scotland, it suggested,

    "that the power to declare the invalidity of administrative acts and legislation (including those of the Scottish parliament and the Scottish Executive) should remain vested in the Court of Session. The Bill should be amended to indicate that where such matters are raised in proceedings before any other court or tribunal in Scotland, it is appropriate either that the matter be transferred to the Court of Session or that the cause be sisted pending one of the parties presenting an action in the Court of Session seeking the reduction of the relevant legislation. Similar provisions should be introduced relating to the jurisdiction of the English courts"
and obviously other courts of the United Kingdom.

The amendment is designed to make it possible for there to be some control over which courts should exercise a jurisdiction to reduce or otherwise set aside Acts of the Scottish parliament in subordinate legislation. The amendment would not necessarily limit parties in the lower courts in raising devolution issues

2 Nov 1998 : Column 94

whether they did so as pursuer or plaintiff in an action or the defender and defendant. But it would prevent the lower courts from pronouncing orders that courts should set aside the Acts of the Scottish parliament or subordinate legislation, assuming that the rule-making power was exercised in the way which I and the Faculty of Advocates believe it should be; namely, reserving such important issues to the higher courts. I beg to move.

Lord Hardie: My Lords, the amendment seeks to define the appropriate court or tribunal for proceedings seeking the order for reduction or suspension of an Act of the Scottish parliament or subordinate legislation. In that regard, its intention is similar to the amendment we discussed before the dinner break.

In speaking to the previous amendment, I explained that it would be wrong to make such a provision in the Scottish Bill. Schedule 6 provides that questions of whether the exercise of a function by a member of the Scottish executive or a failure to act is incompatible with the convention rights in a devolution issue. With one exception, it is not intended to specify the courts or tribunals in which devolution issues may be raised.

The appropriate forum will depend upon the ordinary law as to what proceedings can competently be brought before a court or tribunal. For example, if it is competent only to bring an action of reduction in the Court of Session that action would still be competent only in the Court of Session. On the other hand, if an action is competent in another court it would be appropriate to raise devolution issues in that context.

We do not consider that it would be appropriate to provide that devolution issues can be raised only in the Court of Session because Schedule 6 provides for a fast track procedure for the law officers to raise matters directly with the Judicial Committee of the Privy Council. That provision has no counterpart in the Human Rights Bill.

Furthermore, the amendment does not have the effect of bringing the provisions in the Scotland Bill into line with the Human Rights Bill because they contain no counterpart to Clause 7(1)(b) of that Bill entitling a person to rely upon convention rights in any legal proceedings before any court or tribunal. With that explanation, I invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon: My Lords, I am grateful to the noble and learned Lord for explaining the Government's position in response to the concern I raised. I do not see the amendment as being concerned with making the terms of the Scotland Bill compatible with the provisions of the Human Rights Bill. That was an objective of a previous amendment.

I framed the amendment and brought it before the House in order to meet the concern raised by the Faculty of Advocates as to whether it is appropriate that the sheriff court should have power in Scotland--and no doubt the lower civil courts in other parts of the United Kingdom--to reduce, suspend or cost, or whatever other form of order may be competent, the Acts of the Scottish parliament and its elected members.

2 Nov 1998 : Column 95

The noble and learned Lord the Lord Advocate will be aware that actions of reduction are not competent in the sheriff court. However, as a defence to an action raised in the sheriff court it is open to a defender to have a document reduced ope exceptionis. That would apply to an Act of the Scottish parliament or a provision of subordinate legislation made, confirmed and approved by a member of the Scottish executive. It seems to me that the Faculty has a point and therefore I seek to test the opinion of the House.

8.45 p.m.

On Question, Whether the said amendment (No. 191B) shall be agreed to?

Their Lordships divided: Contents, 46; Not-Contents, 95.

Division No. 2


Alton of Liverpool, L.
Annaly, L.
Attlee, E. [Teller.]
Baker of Dorking, L.
Balfour, E.
Blaker, L.
Blatch, B.
Brougham and Vaux, L.
Byford, B. [Teller.]
Campbell of Alloway, L.
Carnegy of Lour, B.
Carr of Hadley, L.
Chesham, L.
Cope of Berkeley, L.
Craigavon, V.
Crathorne, L.
Dixon-Smith, L.
Fookes, B.
Gardner of Parkes, B.
Gisborough, L.
Harris of Peckham, L.
HolmPatrick, L.
Kingsland, L.
Leigh, L.
Lindsay, E.
Lyell, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Marlesford, L.
Masham of Ilton, B.
Monro of Langholm, L.
Northbrook, L.
Northesk, E.
Palmer, L.
Park of Monmouth, B.
Renton, L.
Rowallan, L.
St. John of Fawsley, L.
Saltoun of Abernethy, Ly.
Selkirk of Douglas, L.
Sempill, L.
Skelmersdale, L.
Stair, E.
Sudeley, L.
Waddington, L.
Wilcox, B.


Acton, L.
Addington, L.
Ahmed, L.
Alderdice, L.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brooks of Tremorfa, L.
Burlison, L.
Carlisle, E.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Crawley, B.
David, B.
Davies of Coity, L.
Dean of Beswick, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Eatwell, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Gallacher, L.
Gilbert, L.
Gordon of Strathblane, L.
Goudie, B.
Grenfell, L.
Hacking, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B. [Lord Privy Seal.]
Linklater of Butterstone, B.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
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.
Nicholson of Winterbourne, B.
Nicol, B.
Orme, L.
Perry of Walton, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Sawyer, L.
Scotland of Asthal, B.
Sefton of Garston, L.
Sewel, L.
Simon, V.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Macclesfield, L.
Thomson of Monifieth, L.
Thornton, B.
Thurso, V.
Tomlinson, L.
Tordoff, L.
Uddin, B.
Varley, L.
Warner, L.
Whitty, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

2 Nov 1998 : Column 96

8.54 p.m.

Clause 94 [Legislative power to remedy ultra vires acts]:

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