Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Thomson of Monifieth: My Lords, like the noble Baroness, Lady Carnegy of Lour, my mind boggles at the legal complexities of this matter. I have two brief points. First, I am intrigued about the history--which is always fascinating--and about how, given that there was an independent Scottish Parliament until 1707, we can amend the Bill of Rights of the English Parliament of 1689. The historical possibility for the lawyers intrigues me.

On the main point, I am intrigued because, not for the first time in these long debates, we now have a Conservative Opposition in this House who appear to be extremely enthusiastic about increasing the status, power and privileges of a Scottish parliament, which they did their best to persuade the Scottish people to reject.

Lord Sewel: My Lords, I am well known for being generous in welcoming new converts to the cause and I shall not go down the line opened up by the noble Lord, Lord Thomson of Monifieth.

In Amendments Nos. 192B and 192D, noble Lords opposite are seeking to extend the protection of the Scottish parliament. That is a thread that has run through many of our debates. The noble and learned Lord was kind enough to point out the way in which the Government have responded to questions by taking seriously the specific points made by noble Lords opposite and trying to meet them. Now we finish up with a position where the protection afforded to the Scottish parliament, to members of the Scottish parliament and to officers of the Scottish parliament is much more explicit--in a way it is both more explicit and more general--than was the case when we first started to consider the Bill.

I do not think that there is a matter of principle between us on the need to provide effective and adequate protection for the Scottish parliament. Where

2 Nov 1998 : Column 103

we differ is in striking where the balance should be. We have considered this issue at some length in earlier debates. We believe that what is now provided in the Bill, together with the amendments proposed to Schedule 4, represent the right approach. We are not attracted by the idea of going down the route which the noble and learned Lord invites us to take.

With Amendments Nos. 192B and 192D the noble and learned Lord has made clear that he wishes to replicate completely the arrangements existing at Westminster for the Scottish parliament. The Government do not agree that that is the right approach. I am conscious that the subject of protection for the Scottish parliament is large and complex. We have made a number of amendments in response to the concerns of noble Lords that the parliament should be able to go about its business without undue interruption from the courts. We have also tabled amendments to Schedule 4 which make it clear that those parts of the Bill which deal with protection from judicial proceedings may be modified by the parliament. I believe that that balance is about right.

We have concluded that we cannot justify attempting to mirror Westminster privileges. That is why we cannot support the Opposition amendments before us tonight. The privileges enjoyed by Westminster are very wide-ranging and rooted in history, as the noble and learned Lord indicated. Some of them flow from the fact that the Parliament at Westminster is the highest court. That would be an inappropriate basis on which to draw protection and privileges for the Scottish parliament, which in no sense can act as a court.

The other problem with following the route which we have been invited to take by the Opposition is that the privileges enjoyed by Westminster are relatively ill-defined and of uncertain scope. That is partly the inevitability of the way in which they relate to the past and have been developed. We do not believe that that is the way to start when setting up the new institution. We are attracted by a different approach which is to be more explicit and precise, as far as we can, as regards protection, as well as giving the parliament itself power to pass legislation on the protection available to it. As I say, we are not attracted to the arguments put forward by the noble and learned Lord.

I can deal with the two illustrations he used to support his case in contra-distinction to that of the Government. He indicated that an Act of the Scottish Parliament may be open to challenge if it was argued that it had been obtained through fraud or deception and also that the act had been brought about by a genuine and wrong understanding of the facts.

Clause 27(5) makes it clear that the validity of an Act is not affected by any question as regards the background of the legislation. Once enacted, the legislation stands, assuming that the Act was in the competence of the parliament. So I do not see how the courts would accept a challenge on the grounds that

2 Nov 1998 : Column 104

the noble and learned Lord has indicated. That is effectively closed off by Clause 27(5), but the noble and learned Lord has a different view.

Lord Mackay of Drumadoon: My Lords, I do not want to interrupt too much, but if the noble Lord is in a position to assure me that challenges of the nature I have explained as possibilities would be covered by Clause 27(5), no one would be happier than I. I encourage the noble Lord to continue.

Lord Sewel: My Lords, I like to bring happiness wherever I can. On this occasion, I think I can give the noble and learned Lord all the happiness that he seeks. That indeed is our interpretation of the effect of Clause 27(5). So, on that happy note, I think I can conclude my remarks and invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon: Indeed so, my Lords. When earlier on I invited the noble Lord to explain what was behind Amendment No. 112, I was anxious to see whether it went of its own volition as far as we are now going. I am grateful for the noble and learned Lord's explanation which I shall read carefully. However, it does seem that to a large extent it meets my practical concerns. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 192C and 192D not moved.]

Lord Mackay of Drumadoon moved Amendment No. 192E:

After Clause 94, insert the following new clause--

Courts not to require legislation to be undertaken

(" . No court shall pronounce any order requiring a member of the Scottish Executive or a junior Scottish Minister to introduce a Bill to the Parliament or to make, confirm or approve any provision of subordinate legislation.").

The noble and learned Lord said: My Lords, this amendment seeks to introduce into the Bill after Clause 94 a new clause which would prevent any court from pronouncing an order requiring a member of the Scottish executive or a junior Scottish Minister to introduce a Bill to the parliament or to make, confirm or approve any provision of subordinate legislation.

Among the devolution issues which are defined in paragraph 1 of Schedule 6 to the Bill are questions as to whether a purported or proposed exercise of a function by a member of the Scottish executive is or would be incompatible with any of the Convention rights or with Community law and whether a failure to act by a member of the Scottish executive is incompatible with any of the Convention rights or with Community law. For these reasons, I can see that it is possible that in proceedings which are raised before the courts, and in particular before the Scottish courts, an order may be sought requiring a member of the Scottish executive or a junior Scottish Minister to act along the lines set out in the amendment.

2 Nov 1998 : Column 105

I fully accept, because they are devolution issues, that the courts will require to rule on whether the acts or omissions of members of the Scottish executive or junior Ministers have been in accordance with their statutory duties under the Bill. I therefore have no objection to the courts having power to grant declarators to that effect. However, my concern arises in these circumstances. If in an action at the instance of the United Kingdom Government, acting no doubt through one of its Secretaries of State, the court is asked to order a member of the Scottish executive to act in a way that previously he had been unwilling to act, the court would inevitably be drawn into further controversy. No doubt the decision as to whether to grant such an order would be one on which the court would have a discretion. Quite how it would go about seizing itself of the necessary information before it exercised discretion is not entirely obvious to me. But whether or not it makes the order, the very fact that it is asked to make the order could give rise to avoidable controversy.

On more than one occasion Ministers have encouraged us to accept that members of the Scottish executive and junior Scottish Ministers will act in a responsible manner. For my part, I should like to believe that the Government's faith in these future appointees is well founded. I see no reason why it should not be. However, there will be times when people acting perfectly genuinely take a different view from Ministers of the United Kingdom Government and may feel that they are acting perfectly responsibly. I believe that they should be left to make up their own minds as to what to do if a court grants a declarator that they have acted outwith their powers, or that they have failed to act in a manner in which the statutory duties upon them require them to act. Therefore, I do not think that the courts should have the power to go beyond the granting of an order in the same way as the Government, in an earlier amendment which was dealt with on Report, accepted that the courts should not have the power to grant similar orders against the parliament. I beg to move.

9.30 p.m.

Lord Hardie: My Lords, the amendment is unnecessary. The answer to it is the Crown Proceedings Act 1947, which prevents the court from making an order for specific performance against the Crown. The Scottish Executive will be part of the Crown. Accordingly, I invite the noble and learned Lord to withdraw his amendment.

Next Section Back to Table of Contents Lords Hansard Home Page