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Lord Mackay of Drumadoon moved Amendment No. 191C:

Page 43, line 29, leave out ("or expedient").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak to Amendments Nos. 191D, 191E and 202YA. These are small drafting amendments which seek to delete certain words in Clauses 94 and 97. In Clause 94 they seek to delete the words "or expedient" in line 29 and the words "or may not be" as they appear in paragraphs (a) and (b).

The order-making powers in Clauses 94 and 97, to which the fourth of the amendments is directed, should be used only when necessary and when an Act of the Scottish parliament or a provision of an Act of the Scottish parliament or any purported exercise by a member of the Scottish Executive of his functions is outwith competence or not a proper exercise of function. It should not be competent for these powers to be used, as the Bill currently would allow, where it is just a question of expediency or, under Clause 94, where there is doubt as to whether or not the Act of the Scottish Parliament or the provision of an Act of the Scottish Parliament is within legislative competence or where there is doubt as to whether or not the member of the Scottish Executive has acted within his executive functions.

Such order-making powers may be necessary. I accept that there may be circumstances where it is necessary for such a power to exist and that it should be used, but

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I do not accept that that should occur in the circumstances that are currently permitted. I beg to move.

Lord Hardie: My Lords, the Government cannot accept Amendments Nos. 191C and 202YA. With these amendments the noble and learned Lord is seeking to remove the words "or expedient" from Clauses 94 and 97 which provide for the making of subordinate legislation, subject to procedure in this Parliament, in certain circumstances. The noble and learned Lord's amendments would restrict the circumstances in which such subordinate legislation could be made.

The powers in Clauses 94 and 97 are consequential powers and in both cases the Government consider that the right test is whether such legislation is necessary or expedient. I appreciate that the noble and learned Lord does not take issue with the word "necessary" but there is a question as to whether it is appropriate to include the alternative of expediency. We see those words as essential to ensure that these consequential powers may be exercised in appropriate circumstances.

The degree of flexibility provided by Clauses 94 and 97 is important. It would be difficult to demonstrate in all but a narrow range of cases that subordinate legislation was absolutely necessary.

There will be instances where it would indeed be expedient, but not necessary, for subordinate legislation to be made. For example, under Clause 94, an Act of the Scottish parliament might be found to be ultra vires and subordinate legislation could be used to address the situation concerning rights or liabilities. It might not be absolutely necessary that such provision was made, but it would be expedient.

Equally, the Government cannot support Amendments Nos. 191D and 191E which would restrict when the power in Clause 94 could be exercised. We think that it is important that the order-making power can be used if there is a suspected defect in an Act or the action of a member of the Scottish executive. To do otherwise would make it necessary for a court to rule that a provision or action is ultra vires. However, we want to ensure that remedying action can be taken before that event and may even avoid unnecessary judicial proceedings. I can understand why lawyers might be keen to have unnecessary judicial proceedings, wearing their other hats as practising lawyers, but that does not make good sense. I am sure that this power will be exercised with caution and only where there is a good degree of certainty that something really is ultra vires. I hope that the noble and learned Lord can withdraw the amendment.

Lord Mackay of Drumadoon: My Lords, I intend to do that very thing. I am quite sure that the noble and learned Lord did not think that I was wishing to be obstructive in unnecessary legal proceedings; there are more than enough necessary legal proceedings to keep me and my colleagues well occupied.

I accept the force of what the noble and learned Lord the Lord Advocate said: it may have the effect of reducing the amount of litigation. That is one of the

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themes to which I have returned on more than one occasion in these debates and I am therefore happy to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

[Amendments Nos. 191D to 191F not moved.]

Lord Hardie moved Amendment No. 191G:

Transpose Clause 94 to after Clause 99.

The noble and learned Lord said: My Lords, this is a formal amendment to transpose Clause 94 to after Clause 99. It is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 192:

After Clause 94, insert the following new clause--

Interpretation of Acts of the Scottish Parliament etc

(".--(1) This section applies to--
(a) any provision of an Act of the Scottish Parliament, or of a Bill for such an Act, and
(b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a member of the Scottish Executive,
which could be read in such a way as to be outside competence.
(2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.
(3) In this section, "competence"--
(a) in relation to an Act of the Scottish Parliament, or a Bill for such an Act, means the legislative competence of the Parliament, and
(b) in relation to subordinate legislation, means the powers conferred by virtue of this Act.").

On Question, amendment agreed to.

[Amendment No. 192A not moved.]

Lord Mackay of Drumadoon moved Amendment No. 192B:

After Clause 94, insert the following new clause--

Freedom of speech

(" .--(1) In the Bill of Rights, there shall be inserted at the end of Article IX (freedom of speech) the words "; and in this Article, "Parlyament" shall include the Scottish Parliament".
(2) In the Claim of Right Act 1689, there shall be inserted at the end of Article XXV the words "of those Parliaments (including the Scottish Parliament)".").

The noble and learned Lord said: My Lords, in speaking to this amendment I shall speak also to Amendment No. 192D. It raises the issue of parliamentary privilege which was one of the subjects which we debated late in the night on the ninth day of Committee.

As I explained on that occasion, the objective of the amendments dealing with parliamentary privilege is to place the Scottish parliament, so far as is possible, on the same footing as the Westminster Parliament as regards the extent to which the courts will investigate how and why Parliament has acted in the way it has, in particular in the passing of legislation.

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In moving these amendments, perhaps it may be helpful to make clear a number of matters. Nothing in the amendments is intended to interfere in any way with the jurisdiction which the courts and tribunals of the United Kingdom will have to determine devolution issues as they are defined in paragraph 1 of Schedule 6 and as they arise from time to time in proceedings which come before courts and tribunals.

The first of the amendments was drafted with considerable assistance from senior Clerks in the Public Bill Office, for which I am extremely grateful. Amendment No. 192 is based on Section 26(1) of the Northern Ireland Constitution Act 1973.

In a number of places, the Bill already seeks to protect freedom of speech and the freedom of the Scottish parliament to regulate its own affairs; for example, in Section 21 and Schedule 3, we have powers to make standing orders which are to some extent constrained by certain prescriptions written into the Bill but which are primarily left to the parliament itself to determine. We have Clause 27(5), which was amended last week by Amendment No. 112, when the noble Lord, Lord Sewel, explained to your Lordships that the purpose of the new subsection was to prevent the validity of Acts of the Scottish parliament being challenged on arguments directed to the fact that standing orders had not been followed properly or on any other procedural grounds which suggested that a procedural rule of the parliament had not been adhered to. But that was as far as I understood Clause 27(5) to go.

Clause 37 accords to the new parliament, for the purposes of the law on defamation, the absolute privilege to any statement made in proceedings of the parliament and the publication under the authority of the parliament of any statement. As I understand it, that would cover not only members of the new parliament but any individuals who may be called to give evidence or provide information to committees of that parliament during its formal proceedings.

A number of other amendments have been brought forward helpfully by the Government seeking to exclude challenges based on any defects in the election or appointment of particular office holders or members of the Scottish executive. I very much welcome those amendments.

Notwithstanding those provisions, I remain concerned that the Scottish parliament will not enjoy the same privilege as this Parliament. I understand that to be acknowledged by the Government because on more than one occasion the Minister has referred to that fact. Indeed, in a letter dated 16th October of this year, he wrote to my noble friend Lord Mackay of Ardbrecknish. The noble Lord, Lord Sewel, said:

    "During debates in Committee on the extent of the Scottish Parliament's privilege I indicated that we were actively considering the matter. We have concluded that we cannot justify attempting to mirror Westminster privileges. Those privileges are very wide ranging and, in certain respects, apply for largely historical reasons. Instead, we consider it more appropriate to protect the Parliament in the same way as the Crown".

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He then went on to discuss a number of the amendments which the Government have brought forward, I repeat, very helpfully, at this stage.

In his letter, the noble Lord, Lord Sewel, did not explain why the Government had concluded that they could not justify attempting to mirror Westminster privileges. As he rightly says, those privileges are wide-ranging and it is certainly true that they have a long history. That is obvious from the fact that in my amendments I have referred to the Bill of Rights and the Claim of Right Act 1689 which are understood to found the privileges which this Parliament enjoys.

It is my position that if the Government are not prepared to accord the Scottish parliament the same privileges as the Westminster Parliament, they should explain why that is so. I believe--and my view is shared by many others--that in Scotland at least the voters who vote for members of the new parliament and, after the parliament is elected and sets about its business, the population at large will wish to treat primary legislation coming out of the Scottish parliament, in the form of Acts of the Scottish parliament, in exactly the same way as they treat legislation coming out of Westminster.

It may be that in law and in constitutional theory there are differences between the two forms of legislation, and no doubt constitutional lawyers can spend many hours discussing the reasons for and legal consequences of those differences. But the man in the street will treat them the same and therefore, if at all possible, the courts should be encouraged and indeed constrained to treat them the same.

It may help if I explain why this matter should be dealt with in this Bill rather than left to the Scottish parliament itself. I believe that the definition of the legislative competence of the Scottish parliament which is to be found in Clause 28 of the Bill would not permit the Scottish parliament to pass any Act which would bind courts in any part of the United Kingdom other than Scotland to accord its legislation privilege similar to the privilege attached to legislation coming from Westminster. Therefore, if this matter is to be addressed, it must be addressed in legislation enacted at Westminster and this seems to me to be the appropriate time at which to look at the issue.

Perhaps I may give one or two examples of the kind of challenge that I wish to exclude. One would be an attempt to investigate whether or not an Act of the Scottish parliament had been obtained by some fraud, deception or other improper motive either on the part of a member of the parliament itself or a member of the public who had been involved in lobbying parliament or in placing information before its members. A second example may be an attempt to demonstrate that an Act of the Scottish parliament had been passed by the parliament on the basis of a perfectly genuine but completely inaccurate understanding of the relevant facts.

Those are not fanciful examples. In comparatively recent cases which have come before either the Appellate Committee of your Lordships' House or the Judicial Committee of the Privy Council, those issues have arisen. In the case of British Railways Board and another v. Pickin in 1974 the speech of Lord Morris of

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Borth-y-Gest explained in comparatively short form what the privileges of this Parliament are designed to achieve. He said,

    "It must surely be for Parliament to lay down the procedures which are to be followed before a bill can become an Act".
The Government accept that for the Scottish parliament. He went on,

    "It must be for Parliament to decide whether its decreed procedures have in fact been followed".
The same applies to the Scottish parliament. The speech continues,

    "It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders".

The Government accept all of that in relation to the Scottish parliament, but Lord Morris went on to say this:

    "It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark on an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed".
That arose in proceedings designed to challenge the validity of a private Act of Parliament. In another case of Prebble v. Television New Zealand Limited in 1994 the Privy Council addressed a similar issue and followed the same approach.

So those are not fanciful issues, as is also confirmed by the fact that a joint committee of both Houses of Parliament, chaired by the noble and learned Lord, Lord Nicholls, is currently addressing this whole issue and has taken evidence from a number of senior judges, senior politicians and, indeed, senior officials of both Houses. It appears to be accepted in that committee's discussions that there are instances where the courts are precluded from looking behind what this Parliament has enacted. That is a starting point for its deliberations.

It is desirable that the Scottish parliament should set out on an equal footing with the Westminster Parliament. If, in the course of time, the committee of the noble and learned Lord, Lord Nicholls, reports and recommends a change in the law on a UK-wide basis, obviously the position as regards the Scottish parliament would need to be examined and altered. If there were an amendment to the privilege of this Parliament, agreed to by this Parliament, I should be content that it should be reflected in an amendment to what will then be the Scotland Act so that the Scottish parliament will be on the same basis.

I object to the fact that the Government are not prepared to mirror Westminster's privileges in the new Scottish parliament. It may not be possible to mirror them exactly, but in principle there should be no difference between the two parliaments. For those reasons, I beg to move Amendment No. 192B.

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9.15 p.m.

Baroness Carnegy of Lour: My Lords, this is obviously a complex legal matter and one that I do not fully understand. Perhaps I may make a suggestion to the Minister. If he feels able to accept Amendment No. 192B, I think that would be very attractive to Scots as a whole.

I base that view on my experience. A number of years ago, I took through the House a piece of legislation, fixing term days and quarter days in Scotland. In the process, I repealed an Act of the 17th Century. When talking about the House of Lords, I have often told people about that. It interests them to know that it is possible to repeal an Act of Parliament of that date. People are very interested to hear that that can be done. In the future, people may be interested to know that this Bill inserts something about freedom of speech into two such ancient pieces of legislation, the Bill of Rights and the Claim of Right Act 1689. If something like that were to be done, it would prove of great interest to people. Perhaps such an amendment would be worth making, provided that the matter that it introduced was acceptable.

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