§ 3.57 p.m.
§ Lord STRABOLGI
My Lords, I beg to move that the House do once again resolve itself into a Committee on this Bill.
Moved, That the House do again resolve itself into Committee.—(Lord Strabolgi.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [VISCOUNT HOOD in the Chair.]
§ Debate resumed on Amendment No. 76.
§ The Earl of LAUDERDALE
When the noble and learned Lord, Lord McCluskey, is in his best unbuttoned mood racing through a brief, it is not always easy to follow him, particularly if one is a non-legal layman. I have been puzzled by several things which I thought he said, and which I noted down as well as I could while he was speaking at some speed. First, there is the question of inadvertence. I believe it is granted by the noble and learned Lord that there can be situations in which, by pure accident, an Act of the Scottish gathering or Convention might be found to conflict with an Act of Parliament, or vice versa. But what the noble and learned Lord said was that there would be no inadvertence on the part of 1006 the Scottish Assembly. Inadvertence, however, is the common lot of man, so far as Parliamentary life is concerned.
§ Lord McCLUSKEY
When the noble Earl thought that I was racing through my brief, perhaps he failed to hear and certainly he failed to understand what I said. I said that it would not be inadvertent for the Assembly to legislate in relation to a devolved matter, because that is what the Assembly is for. If, post-devolution, the Westminster Parliament legislates on a devolved matter and does not do so either by agreement with the Assembly or deliberately over-rides the wishes of the Assembly, then it legislates inadvertently. I hope that the point is now clear to the noble Earl.
§ The Earl of LAUDERDALE
It is getting a little clearer, but I feel rather like the student who went to his economics tutor and, after an hour, was asked whether he was less confused, to which he replied, "I am less confused, but at a higher intellectual level". I will take the noble and learned Lord's word that it is accepted that there could be inadvertent mistakes made as much by the Scottish Convention as by Parliament. However, what worries me much more is the kind of answer which I received from the noble and learned Lord. For example, he said that Parliament does not ordinarily mean to intervene in devolved matters. Then in extraordinary cases it does mean to do so, and this is not a very happy signal to the people of Scotland. It is one thing to devolve matters for good and all; it is another thing to devolve them and to say, "Yes, but there will be moments when we shall come charging in and we shall have to act".
If I have understood him incorrectly, then there is an opportunity for him to make it clearer because this will be important from the point of view of public opinion. As I understood it, he said that the Parliament of Westminster will not ordinarily mean to intervene in devolved matters. What we really want to know is that it absolutely does not mean to intervene in devolved matters. The noble and learned Lord then went on to say that the Parliament at Westminster might be forced to legislate on devolved matters contrary to the wishes of the Edinburgh Assembly. Surely this 1007 is one of the nubs of the whole thing. There is the possibility—even the likelihood—that at times the political colour of the gathering in Edinburgh will be different from the political colour of the gathering at Westminster. That is almost inevitable sooner or later; indeed it may happen all the time.
That is the situation that worries some of us who want to see a measure of devolution at some stage in some way, but see here a set of propositions that simply seem to add up to confusion. The Government are saying that Westminster might be forced to legislate on devolved matters, contrary to the wishes of the Edinburgh Assembly. Surely it is important that we should get the matter clear and the purpose of the Amendment before us, as I understand it, is to make the matter clear.
Again, the noble and learned Lord said that Parliament may have to act to adjust Schedule 10. That is not very encouraging to those in Scotland who are hoping for the best out of this Bill and who want to see devolution done clearly and cleanly and effectively without danger to the Union as a whole. On the contrary, it is a recipe for confusion and dissension. Then 1 understood the noble and learned Lord to say that there is no reason why a Parliamentary Act need prevail in all cases. We must surely know. As I followed the noble and learned Lord's discourse it was terribly confusing. One is not quite sure whether Parliament is supreme or not. Apparently Parliament is not ordinarily intending to intervene and yet extraordinarily it might. This needs to be made much clearer than it is already. Here and elsewhere in the Bill we have ample opportunity for confusion and dissension and there are plenty of people about, seen and unseen, who wish to exaggerate confusion and dissension to the damage of our country as a whole. I hope the noble and learned Lord can make the matter clearer to simple people than he has made it so far, and if he takes me as a sample of a simple man that will not be a bad thing.
§ 4.4 p.m.
The Earl of SELKIRK
I found the noble and learned Lord's remarks 1008 extremely interesting. He drew a little bit of the curtain aside from the appalling Part III of Schedule 10, and 1 have never understood how that particular part worked with the Bill. So far as I understood him, he said that any Act passed here can in fact be amended by the Scottish Assembly. Secondly, that the purpose of the Government is that within a properly devolved subject the Government have no intention, except in unusual circumstances, of interfering. Indeed, the Bill provides ample statutory arrangements by which, if necessary, Parliament can intrude.
I do not entirely know what the noble and learned Lord means by an "entrenched clause", unless he means simply an Amendment to the Bill. That may be the meaning of the words "entrenched clause" but it is not quite the usual meaning in a constitutional sense. But that is not really the question which my noble friend was asking. He was asking what happened to the people on the spot. Here is the problem—which law are we to follow? My noble friend Lord Lauderdale and others have made the point that people must know; they have to make provision for the future. One has to arrange one's affairs within the law of the country. One must have some idea of what the law will be next year, or perhaps the year after. It seems to me that we should know one way or the other.
I think the noble and learned Lord, Lord McCluskey, comes down on the opposite side to the noble Earl, Lord Mansfield. He says that it ought to be the Act of the Assembly which shall prevail so long as it is in force. Would he accept that? I think it is more important that we should know which Act applies rather than that we should leave it vague. I would rather have one or other as the prevailing Act on the correct subject: that is to say, within a devolved subject within the legal competence of the Assembly, in so far as its Acts are the last on the Statute Book they should take precedence over the United Kingdom Act. Is that what the noble and learned Lord would like?—because I believe it to be a great advantage to have one side perfectly clear rather than to leave it vague as it is at the present time.
§ Lord McCLUSKEY
There are a number of points to be dealt with and I hope I shall be forgiven if I answer one of the points that was in fact put by the noble Earl. The Amendment—and I did not deal with this before because I thought it was plain—in the last few words says:the Act of Parliament shall prevail so long as it is in force".The noble Earl and the noble Viscount, Lord Colville of Culross, accept Clause 17(2), which is the clause which makes it plain—and both the noble and learned Viscount, Lord Dilhorne, and the noble Earl, Lord Selkirk, referred to this—that a Scottish Assembly Act may amend or repeal a provision made by or under an Act of Parliament. So in the ordinary situation when the Assembly comes to legislate, the draftsmen will discover that there is in existence an Act of 1968, such as was mentioned by the noble Lord, Lord Campbell of Croy, or some other Act, and that there is an existing provision. The draftsmen will pick that up and, using the powers conferred upon them by Clause 17(2), the Assembly will then repeal the Act of Parliament.
Lord CAMPBELL of CROY
But can the noble and learned Lord absolutely guarantee that that will always happen?
§ Lord McCLUSKEY
No, and I will return to the matter of inadvertence later. But the genius of the Amendment is that it recognises that, and the significance of the words, "so long as it is in force" is that Clause 17(2) enables that Act of Parliament to be repealed by the Assembly, so the movers of the Amendment were in no doubt about that particular point. I hope that answers the point raised by the noble and learned Viscount about the relationship between this Amendment and that particular clause and I hope I shall be forgiven for presuming to answer on the noble Earl's behalf, but it is germane to the whole point.
The noble Earl, Lord Selkirk, quite rightly took me up for using the word "entrenched" because it is not a word which is properly known in our jurisprudence. I was using it in the Committee as a form of shorthand, for which I hope I shall be forgiven. As he says, what an Act of the Westminster Parliament can do in future, if it wants to ensure that one of its provisions shall not be repealed 1010 or amended by the Assembly on a subsequent occasion, is this. It may achieve that in one of two ways: it may use words such as "notwithstanding anything contained in Section 17(2) of the Scotland Act 1978" et cetera, or, alternatively, it may amend the Scotland Act of 1978 in order to prevent the Assembly from legislating on that matter in the future.
§ Viscount DILHORNE
Then if Parliament passes an Act in that form, what is to stop the Assembly from repealing it?
§ Lord McCLUSKEY
As I have said, it would amend the Scotland Act and amend either Clause 17(2) or some part of the Schedules in order to prevent the Assembly from having the legislative competence to repeal that Act of Parliament. In other words, on any future occasion the Westminster Parliament can, if it has to do so, amend the Scotland Act so as to remove from the Assembly the competence to amend a particular Act of Parliament and in that way, although I agree that it is a shorthand term, it can entrench any future provision.
The noble Lord, Lord Campbell of Croy, asked me a question: I hope I have dealt with part of it, and the other part I seek to deal with now. He says, "If the Assembly Act is in conflict with an Act which had been in existence in the past, which one prevails?" Of course one hopes that the draftsman picks up the point. If he does not do so, then the ordinary rules of construction prevail. It is not for me to lecture this Committee, including noble and learned Lords and others, on what they are, but the general rule is that where you have a legislature which enacts two provisions the subsequent one will always prevail over the earlier one, if there is an apparent conflict and they do not within themselves contain the means of resolving the conflict. I was asked specifically whether we do not have a need for a clear procedure. My answer would be that we should not be telling the Westminster Parliament in this Bill how to legislate in future on these matters. That is a matter for the Westminster Parliament to decide.
If one gets the inadvertent case—and that is the one which the Amendment is really homing in on, although I am afraid I have broadened the argument because 1011 I thought it might be useful, because I gave a pledge to the noble Earl, Lord Selkirk, at Second Reading that I would give some explanation about Schedule 10; I hope to give another one later—where the Assembly deliberately legislate in the devolved field and the Assembly draftsmen and the Assembly Members fail to pick up the fact that there is an existing statute, the ordinary rules would prevail. I would be content to leave that to the courts, and I hope the Committee will also be content. if the boot is on the other foot, and it is the Westminster Parliament which, while not intending to legislate in the devolved field, inadvertently puts a provision into a Bill which infringes on that particular field, then different considerations would apply. It becomes a matter of construction, in the terms of the whole Act of the Westminster Parliament, whether or not it was the intention to do this. I do not contend that one should have the rule, which I said was slightly more logical, that the Assembly measure should prevail over the Westminster Act. What I said was that one could make out a good case, perhaps a better case, for that, but the best case could be made out for saying to the courts, "These cases have arisen in the past and you have dealt with them. Apply the rules that you consider appropriate to that particular kind of case". I suggest that is not difficult. I hope the noble Earl will make it clear whether or not these explanations are acceptable to him.
§ 4.13 p.m.
§ Lord HARMAR-NICHOLLS
I think this is another case where the legal outlook is in conflict with the Parliamentary outlook. The noble Lord seems to have produced a new system where many of the responsibilities are put on Parliamentary draftsmen. Parliamentary draftsmen do not exist, any more than the people in the Box exist; it is Parliament which makes the decision. We have a recent example, which divided both Houses, where Parliamentary draftsmen did not realise that a Bill was hybrid; it had a great effect on the way certain legislation would be affected, and it caused part of Government legislation to be withdrawn.
I do not believe that one ought to rely upon Parliamentary draftsmen, excellent 1012 though they are, being the watchdogs to that extent in that sort of situation. I believe it is Parliament's responsibility to make the position as clear as it can in Parliamentary words, to avoid such responsibility being thrown on the shoulders of people who do not exist in terms of being part of the legislation-making machine. To say that the conflict may not be there, or will not be there because the Parliamentary draftsmen will be aware of the legislation which exists, when only a month or two ago that situation did happen on a matter which was very much in everyone's mind, is, I think, very worrying.
§ Lord DRUMALBYN
May I ask the noble and learned Lord one question, which I think I am right in interpreting as being within the context of his, I thought, very clear statement? Is he envisaging this Amendment, and indeed the whole question, in the context of the interpretation in the Scottish courts of devolved legislation in relation to any other legislation? Is this the point which is involved? It seems to me rather a long way from my noble friend's approach, but if this is the narrow purport of this Amendment it would be very much clearer to me.
§ Lord McCLUSKEY
That is how I read the Amendment. I would not say exclusively the Scottish courts, because it is conceivable that a point of this kind might arise not in the Scottish courts, and indeed the Bill envisages that and makes provision for resolving certain issues. But, in the vast majority of cases, because the devolved matters relate to people in Scotland, one would expect any litigations to be in the Scottish courts. That is how I understand the Amendment, and I hope that answers the noble Lord's question.
§ Lord LOVAT
With great respect, would align myself with the noble Earl, Lord Lauderdale. I do not think the Minister has fully explained to the simple man what would happen if the balance of political power in Scotland shifted entirely. This could very well happen. I have been in your Lordships' House long enough to remember that in the early 'thirties Glasgow Council became a Labour Council, and people said at the time that it could never happen again. 1013 As it happens, there has never been any other council in the interval since that time. I think we are all probably anxious to see that the Scottish Nationalists do not control the Assembly: this is part of the object of devolution. What is going to happen if we find ourselves with a strong Scottish National Party in control of the Assembly who wish to separate from the United Kingdom—something which appals us in Scotland?
§ Lord McCLUSKEY
If I may reply, and I apologise for speaking once again, what the noble Lord says has absolutely nothing whatever to do with this Amendment. We are considering in Committee the advisability of providing a statutory rule for resolving a possible conflict that might arise through inadvertence. That is what we are discussing. I do not propose to take up the time of the Committee answering questions of the kind raised by the noble Lord, which have nothing to do with this Amendment.
§ The Earl of LAUDERDALE
I know the noble Lord is always very patient, and he will learn as time goes on to address his mind to those of us who arc at the bottom of the third form. I am not quite sure whether I heard him answer the very pointed question put by the noble and learned Viscount, Lord Dilhorne: Why cannot the Assembly under Clause 17(2) amend Parliament's amendment of their own Acts? He does not seem to have answered that, or perhaps I did not understand it.
§ Lord McCLUSKEY
I thought I did, and I thought the noble Earl, Lord Selkirk, pointed the answer to that question. If one had to do it, the Westminster Parliament could amend the Scotland Act itself so as to remove from the legislative competence of the Assembly the competence to amend the provision that they want to—and I use the word in inverted commas—"entrench".
Is not that in fact quite a fundamental weakness? What the Government have done is to produce a Bill to devolve certain powers to Scotland, and, as the noble and learned Lord, Lord McCluskey, says, all they have to do at a later date is to repeal Clause 17(2) and then presumably everything that the Scottish Assembly does thereafter becomes 1014 wholly subordinate to the United Kingdom Parliament.
§ Lord McCLUSKEY
What the movers of the Amendment are talking about is a small technical matter. What the noble Earl is talking about is something entirely different. Surely 1 can explain, even to the thircl-formers, that the whole concept of legislative devolution is that once devolved matters have been devolved to the Assembly the Westminster Parliament is intending to stand back. If, for example, the United Kingdom Parliament has to enact an international obligation in relation to a devolved matter, where the Assembly has declined to do so—in that kind of extreme situation where the Assembly refuses to do what it ought to do in relation to a devolved matter and where the United Kingdom have an obligation under international law, or in some such context—you would find the United Kingdom Parliament legislating in relation to a devolved matter against the will of the Assembly. That is a very unusual situation and it might call for very unusual measures. I am not suggesting for one moment that it will happen every day. I suggest that it is unlikely to happen at all.
I am sure that the noble and learned Lord is being very helpful to the third-formers, but perhaps he will now help the fifth-formers. One thing he said was really surprising; namely, that Parliament passes this Act and gives powers to the Assembly, but Parliament does not intend to interfere. Parliament is sovereign. It may be that the Government do not intend to interfere in anything that happens in the future, but, as the Bill is written and as I understand it, there is the possibility for the Assembly to legislate on certain matters and the possibility for the United Kingdom Parliament to legislate on those matters. With the greatest respect to the noble and learned Lord, I do not think that it is right to say that Parliament does not intend to interfere. If the Bill is passed and becomes an Act, the United Kingdom Parliament has just as much right to interfere as the Assembly has to legislate. Is that not a fact?
§ 4.21 p.m.
§ Viscount DILHORNE
I should like to thank the noble and learned Lord, 1015 Lord McCluskey, for dealing with the point which I raised. I quite agree that there should be power in the United Kingdom Parliament to secure that any international obligation into which we enter is honoured by the whole of the United Kingdom, whatever may be the wishes of the majority in the Assembly. Of course, the noble and learned Lord has said that that can be done, but he has gone so far as to say that the United Kingdom Parliament would only legislate in circumstances like that. I am sure that he would make no claim to commit any future Parliament to any course of action.
Quite frankly, I think that he must concede that it would be within the power of a future Parliament to reduce the area of devolved matters and take away some of those matters from the Assembly if the Parliament of the day thought that that was a wise thing to do. I think that he must concede, under the Bill as it now stands, that there would be that power. At the same time I think that one could safely predict that no Government in their senses would be likely to do something which would perhaps lead more quickly than anything else to a break-up of the Union. However, that power would surely be there.
The noble and learned Lord has said that some of the questions raised in this debate have gone beyond the subject of the Amendment. I personally do not think that he is really the right person to complain of that, because he gave an address in answer to the speech of the noble Earl which covered a whole range and widened the debate. Indeed, I am grateful to him for having done so, because I think that what he has said is valuable and may lead to a greater understanding. For myself, I thank him for his explanation.
§ The Earl of MANSFIELD
This debate has ranged a good deal wider than my noble friend and I ever dreamt when we came to discuss and later to table this Amendment. A number of questions have been fired at the noble and learned Lord, Lord McCluskey. As the noble and learned Viscount, Lord Dilhorne, has said, he is the author of his own hurt in that he took the opportunity to come down from the mountain bearing what I know, 1016 when we read it in the Official Report, will be very wise words.
However, I do not think that at any rate the first part of his answer had anything very much, if at all, to do with my Amendment. I shall even forgive him for shooting my fox in the shape of the noble and learned Viscount, Lord Dilhorne, because what the Amendment does not do—and this point was taken by the noble Lord, Lord Mackie—is to fetter in any way the legislative power of the Scottish Assembly. As the noble and learned Lord himself said at one point, it is a comparatively narrow Amendment on a comparatively legalistic point, or at any rate a lawyer's point, and it is merely meant to encourage the Government to write into the Bill the state of affairs which would exist when the Bill becomes an Act, so that unless and until an Act of Parliament was changed by the Scottish Assembly, the Act of Parliament would prevail.
A great deal of the debate has centred upon what could be a matter of confrontation between the Scottish Assembly and the United Kingdom Parliament, and that certainly was not in my mind when the Amendment was tabled. Never-the less, I think that the debate has been of considerable value. I am still not entirely happy that the point of the Amendment has been answered by the noble and learned Lord, because when the whole thing eventually came down to his answer he said, in effect: "Oh well, we shall use the ordinary canons of construction so far as Statutes are concerned—the later one will prevail." Therefore, if the situation which I postulated is the one which is causing the difficulty—in other words, we have a United Kingdom Act followed by an Assembly Act—then, of course the Assembly Act will prevail, always provided that it meets the criteria laid down in Schedule 10. I am not happy that that will necessarily be the situation that comes about.
The noble and learned Lord was pretty quick to get round the other part of my hypothesis, that it may be that it is the United Kingdom Parliament at Westminster which is, in fact, inadvertently "trespassing", if that is the correct word—I hope that it is not the wrong one—into Scottish territory. I still think that it would be preferable to write something into the Bill which takes care of that 1017 situation. I do not think that the ordinary canons of construction are very helpful in this respect. I tried to illustrate this with what I might call the "European situation", which I think is more in point. Nevertheless, I believe that the best thing to do is to go away and read, and see what I can make of, what the noble and learned Lord said in his first answer. Indeed, I might even hope that the noble and learned Lord would also go away and read what was said in the Official Report, because I do not think that the matter has been resolved entirely satisfactorily and we may have to come back to it. However, in the meantime I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 18 agreed to.
§ Schedule 2 [Legislative competence of Assembly]:
§ 4.28 p.m.
§ Lord MORRIS moved Amendment No. 222:
Page 41, line 31, leave out ("Subject to paragraph 8 of this Schedule").
The noble Lord said: I beg to move Amendment No. 222. This Amendment is intended to be a paving Amendment to Amendment No. 295 which stands in my name, and with your Lordships' permission T shall speak to that Amendment at this stage. Schedule 2, paragraph 2, states:
Subject to paragraph 8 of this Schedule, a provision is not within the legislative competence of the Assembly if it extends to any part of the United Kingdom other than Scotland".
However, Schedule 2, paragraph I, provides quite simply that,
a provision is within the legislative competence of the Assembly if, and only if, the matter to which it relates is a devolved matter".
As your Lordships are aware, those matters that are devolved matters are contained in Schedule 10. For a matter to be a devolved matter it must extend only to Scotland. Surely that is the intention of the Bill. However, I should like to ask the noble and learned Lord, Lord McCluskey, why is it felt necessary to over egg the cake by the inclusion of this paragraph? Why is it felt necessary to state in the negative what has already been well, clearly and firmly stated in the
positive? Notwithstanding that point, paragraph 8 of Schedule 2 provides that paragraphs 1 and 2
do not prevent any provisions from being within the legislative competence of the Assembly if those provisions—
- (a) are necessary or expedient for making other provisions effective or for the enforcement of other provisions; or
- (b) are otherwise incidental to or consequential on other provisions".
If we did not deal with it by having these ancillary provisions it would be necessary to pass an Act of Parliament to make all the consequential changes in United Kingdom legislation". —[Official Report, Commons, 29/11/77; col. 418.]So be it. Why, indeed, should Westminster not be able to legislate on matters concerning the United Kingdom which have been affected by legislation passed by a Scottish Assembly? The extent to which the Scottish Assembly could legislate seems virtually limitless, as all that is required is that a proposal should be expedient or otherwise incidental to other provisions. Permitting the Assembly to legislate for England would give it greater authority than would be enjoyed by the Parliament of an independent Scottish State, but would also lead to inevitable conflict between Edinburgh and Westminster, as any measure which applied to England would not be subject to the scrutiny of Parliament. We could easily reach the position in which a person resident in England was punished for infringing an Act passed by the Scottish Assembly by some action taken in England. An aggrieved party would have no redress through the United Kingdom Parliament. I maintain that that is an intolerable situation.
In rebuttal in another place the Minister stated:
But if there were some disagreement and if a Scottish Assembly attempted to sneak past as an
incidental provision something which was a substantive matter which was not within its legislative competence, the United Kingdom Government could refer it to the Judicial Committee as a matter of vires, and the Judicial Committee could decide whether it was incidental or consequential, or whether it was an attempt to legislate for the United Kingdom".—[Official Report, Commons, 29/11/77; col. 419.]
However, under Clause 17(2), as noble Lords are well aware:
A Scottish Assembly Act may amend or repeal a provision made by or under an Act of Parliament".
That broad statement must itself cover the question of vires, which would have to be interpreted in a strictly judicial manner. However, what would be the position where an Act was clearly intra vires, as being necessary, yet could still be the cause of problems within England? Perhaps I may give an example. Antipollution legislation might well necessitate certain provisions being enforced upon Northumberland and Cumbria. The main legislation which applied to Scotland would be within the vires of the Assembly. Paragraph 8 of Schedule 2 would bring the incidental provisions relating to England within the vires of the Assembly, yet this provision could be very damaging. What could Parliament do?
§ In any event, I, at least, need guidance on the legal effect of paragraphs 1 and 2 of Schedule 2, taken with paragraph 8. I believe this matter to be of critical importance, for if it is not cleared up it will provide a field-day for the lawyers arguing these matters of competence before a constitutional court, the Judicial Committee of the Privy Council, or whatever body is set up to examine these matters. I should have thought that clarity was of the essence in enacting what is or what is not within the competence of the Assembly. I beg the noble and learned Lord, Lord McCluskey, to consider this matter with his characteristic Scottish thoroughness and care, for the inclusion of paragraph 8 can lead only to confusion and bitter contention. I cannot believe that this can be the intention of Her Majesty's Government. I beg to move.
§ The Earl of MANSFIELD
I wonder whether it would be for the convenience of the Committee if Amendment No. 78 standing in my name was considered along 1020 with the Amendment of my noble friend Lord Morris. There is no particular necessity for it, but we are now talking about paragraph 8 of Schedule 2 and, of course, they are all wrapped up in each other. I wonder what the noble and learned Lord, Lord McCluskey, thinks.
§ Lord McCLUSKEY
On that point,I am happy to say that the spirit at least of part of Amendment No. 78 is acceptable to the Government. Indeed, I shall be thanking the noble Earl, Lord Mansfield, and the noble Viscount, Lord Colville of Culross, for drawing our attention to the matter. I shall refer to that when I reply to this debate. The other part of that Amendment—if part of it then survives—is a slightly separate point. It may be that we can speak about it, but we would not necessarily cover the whole of Amendment No. 78 in relation to this.
§ Lord BOYD-CARPENTER
I think that, in tabling this Amendment, my noble friend Lord Morris has rendered the Committee and, indeed the education of opinion outside a considerable service. We are, of course, all subject to guidance on the legal construction of the Bill, which the noble and learned Lord, in his usual amiable and clearly-expressed way, will no doubt give us in a moment. Anything that I say on this highly complex Bill must be subject to any correction that he may see fit to make.
As I read the Bill and as, apparently, my noble friend reads the Bill, the particular provisions affected by his two Amendments—paragraphs 2 and 8 of the second Schedule—appear to confer on the Scottish Assembly power to legislate for England, for Wales, and indeed for any part of the United Kingdom. As my noble friend said, this is rather an astonishing provision. If Scotland were—as some people there appear to want—to achieve independence, it would be inconceivable that the full sovereign legislature of a foreign Power should be entitled to legislate to affect matters in England. Yet it is apparently proposed that this subordinate legislature, with powers carefully hedged and fenced in by many of the Schedules to the Bill, is to be given power to legislate on matters affecting people living outside Scotland.
1021 As I understand it, provided that it can be sustained that the provisions:then the Scottish Assembly will be entitled to legislate affecting matters in England. As I understand it, that means that if, in order to give full effect to their legislation in Scotland, there are practical reasons why the law should affect people in England or Wales, then they have power so to legislate. That seems to raise considerable questions of principle.
- "(a) are necessary or expedient for making other provisions effective or for the enforcement of other provisions; or
- (b) are otherwise incidental to or consequential on other provisions",
Those resident outside Scotland have no vote for the Scottish Assembly; nor have they any means of holding Scottish Secretaries to account for what they do. They will be completely unrepresented. In respect of these devolved matters, it would be no use them coming to Westminster and seeking their Westminster Member of Parliament or the help of a Westminster Cabinet Minister, because both of those functionaries would have to say, "Under the Scotland Act this is outwith our jurisdiction". Therefore, they could have their interests affected by measures carried by an Assembly in which they have no vote and operated by Ministers over whom they have not even a fictitious fraction of control. That cannot be sound constitutional sense. No doubt the noble and learned Lord will say that these will only be fairly small matters, but would they?
One of the matters devolved by Schedule 10 to the Assembly is control of aerodromes. It is at least possible that the Scottish Assembly, in exercise of its undoubted power to regulate aerodromes in Scotland, presumably including all the provisions for controlled air space round and about them, might decide that in order safely to operate Prestwick airport it was desirable to cut off air traffic into Carlisle because it might interfere with air traffic patterns. That would plainly be ancillary to the main power of regulating the Scottish aerodromes. Perhaps the example of Carlisle is a good one because the Burghers of Carlisle can be fairly easily roused. I can tell the noble and learned Lord that they certainly would he if this kind of thing happened.
There are many examples. One of the functions of the Assembly will, I 1022 understand, be to regulate dogs. Suppose there is an outbreak of rabies (as sooner or later there will be as it moves across Europe) in the British Isles. The Scottish Assembly regulating dogs might order that all dogs be tied up, muzzled, or otherwise disposed of. It might well be argued that there is no use doing that if, when you come to the Border, the kindly English, with their love of their canine friends, were allowing these animals to romp happily about the fields. It would surely be necessary and ancillary to the Scottish legislation that some control should be exercised at any rate over the sort of radius of action of a dog from the Border southward.
These may be frivolous matters. However, there is the question of pollution. It is quite obvious that it is no use introducing strict measures against pollution—this again is a devolved matter—right up to the Scottish Border if the English, under another jurisdiction, can happily spread the pollution, shall we say, into the rivers, including the beautiful river in which my noble friend frequently fishes. Therefore, it would be arguable that the Scottish anti-pollution measures should bite on certain areas of Northumberland.
It may be that they would be wise and prudent measures. I am not concerned with that. I am concerned, and I hope the Committee is concerned, with the constitutional indecency of that happening, because it would be subjecting in matters of large, medium or small importance—it does not matter which—the citizens of this country to a jurisdiction over which they had no control and imposed by people whom they had no part in electing.
Does the noble and learned Viscount wish to intervene? I am always alarmed when I see his massive frame showing signs of eruption.
§ Viscount DILHORNE
That being so I will erupt. I was hoping to follow the noble Lord. I thought he had finished.
§ Lord BOYD-CARPENTER
The noble and learned Viscount's hopes will shortly he fructified, as so often they are. This is a little more than a minor adjustment. It is not good enough to say, as was said by a Minister in another place on an almost identical Amendment, "If there is any difficulty about this, the Judicial Committee 1023 will sort this out", because the Judicial Committee is an august body, for which I have the profoundest respect—I say that particularly as the noble and learned Viscount is going to follow me, and it would be rash to indulge in any impertinence against that body, which is a body of the highest standing—and it does not always sit next week if you suddenly want a hearing. Its processes are as stately as its importance justifies, and a good many months or perhaps years might pass before a matter of this sort could be sorted out.
Would it not be simpler to accept these Amendments, to accept that the Scottish Assembly should not legislate for England, and that, if it is necessary for the proper operation of Scottish Assembly measures that they should bite in England, the task of arranging this should be undertaken by this Parliament? Just to throw a final complication into an already complicated matter, what happens if the Scottish Assembly to be set up under this Bill seeks to legislate in Wales?
§ 4.44 p.m.
§ Viscount DILHORNE
I want only to ask one question of the noble and learned Lord, Lord McCluskey, following upon what the noble Lord, Lord Boyd-Carpenter, has said. It may be a difficult question for the courts to determine whether or not a particular provision applying outside Scotland is ancillary and necessary to the Scottish measure. I should like to put to him a case where I should think it might well be said that the provision was clearly necessary and ancillary. The Assembly can legislate in respect to criminal offences. It can make new criminal offences. Giving a power of arrest and power of search might be ancillary, and indeed necessary, in relation to that Act of the Assembly.e
As I see it —and I should like to know whether the noble and learned Lord, Lord McCluskey, will confirm it—if an Act creating a new criminal offence is passed by the Assembly it will be within the power of the Assembly to give a power of arrest over anyone in England, and maybe a power of search as well. I hope he can deal with this. I said "England", but I should have thought the power would also extend to Wales, but that may add more 1024 provocation. If that is so, there really is a big question of principle lurking behind this Amendment.
§ Lord MACKIE of BENSHIE
I looked at this paragraph in the Schedule. I seem to remember it being explained in various other Bills that you had to put in a clause like this because there were always unforeseen circumstances which might arise, such as buying property, or something, in England which was not covered by the Act up to now, and that really it was a blanket clause which introduced excessive powers which were moderated by common sense.
A number of people are perturbed. The noble Lord, Lord Boyd-Carpenter, is obviously worried in case the Scots should seek to muzzle English dogs. Even if the Scots might seek to muzzle not only dogs in England, I doubt whether they would have the power. I think the Minister could allay a number of fears. My honourable friend the Member of Parliament for Berwick-upon-Tweed has, for example, had representations from people in his constituency about the Scottish powers with respect to pollution and fishing for salmon in the river Tweed. I understand, the law is different in Scotland from the law in England with regard to drift netting. The law on pollution may be different. I think that on this Schedule the Minister might be able to give art assurance to those people who are worried. that this paragraph of the Schedule is not intended to give this sort of power to the Scottish Assembly. If he did that, I think that it would allay a number of fears in various parts of Scotland.
§ Lord HARMAR-NICHOLLS
The noble Lord, Lord Mackie of Benshie, said that a similar thing has been put in legislation for overriding common sense reasons. I doubt whether there has been an addition as loosely worded as this one. It is quite clear when one reads my noble friend's Amendment that paragraph 2 of Schedule 2 is in direct contradiction in terms of the meaning of the words to paragraph 8. I was happy when I first skimmed through paragraph 2. It says:a provision is not within the legislative Competence of the Assembly if it extends to any i part of the United Kingdom other than Scotland".1025 Very good. That is what I want. We are not likely to get conflict if we can have that made clear. Then the opening seven words,Subject to paragraph 8 of this Schedule",completely negative that.
I remember that it was theorem 13 of Euclid causes one to go to a great deal of trouble to prove that two lines that are not parallel are in fact parallel One proves it with the angle. It is very well done, and one did a lot of swotting at home and got it clear. Having proved that the two lines that were not parallel were in fact parallel by the angles, one then said, at the end, that by hypothesis that was not so and therefore they were not parallel. That is precisely what is happening here; paragraph 2 seems to give a clear indication that it does not want the Assembly to have power over other parts of the United Kingdom; yet when one looks at paragraph 8 one sees that it gives them all the power anyone could possibly want to do just that.
The words are so loose, and that is the point I am making to the noble Lord, Lord Mackie of Benshie. It says they can do these things—the things that in paragraph 2 it says they did not want them to do— "if it is necessary". Who will decide if it is necessary? Who is the power who will say, "That is necessary"? And "necessary" is the least harmful of the words to which I wish to refer, because I think "necessary" has a legal meaning and can be defined in law. Nevertheless, who will say whether or not it is necessary?
We then go on and we see that if they cannot find that something is necessary they can try to see "if it is expedient". If somebody cannot find expedient reasons for doing anything then they are a little short on imagination. Nor do I believe "expedient" has a legal definition. Yet here we are writing it into the Statute. We know what "expedient" means in ordinary language; if something suits you, right or wrong, you simply say, "I want to do this". That is being expedient and getting away with something you are not entitled to get away with. Thus, "necessary" may be "expedient", and in my view it should not be on the Statute Book at all, especially where there is a possibility of conflict arising from the 1026 Scottish Assembly interferring with what are United Kingdom matters.
Then in sub-paragraph (b) it goes on to show that if "necessary" and "expedient" cannot be used, one can use the phrase "if it is incidental"; if something is incidental it can be done. But incidental to what? Who will decide whether something is incidental as a subsidiary to some main point they may have in mind? I doubt whether "incidental" has a legal definition should it eventually reach somebody who must arbitrate in the matter. If you cannot get away with "necessary" and if you find it rather difficult to prove that something is "expedient" or "incidental", you move on to the wonderful phrase "or consequential". If you cannot prove in law that black is white, when we know it is not, when all you have to show is that something is necessary, expedient, incidental or consequential, then I do not think it is possible to administer any sort of law anywhere.
The Amendment is absolutely right; with all these loopholes, paragraph 2 should not be allowed to stand subject to paragraph 8. The simple question I ask the noble and learned Lord, Lord McCluskey, is this: who will decide? Will it be the Secretary of State? Must it go to one of the courts? Or will it be referred to one of the judicial committees? We should be told who will decide which of these words, most of which are incapable of legal definition, apply in order to complete the negative of what we set out to do in paragraph 2. I have seen many Acts where the beginning is contradicted by the end, but when we have a small Schedule like this, where the end completely contradicts the beginning, that makes me even more doubtful whether we should leave the matter to the Parliamentary draftsmen who were mentioned in connection with the last Amendment.
The Earl of SELKIRK
I am wondering whether Scotland, in the sense it is used here, has any territorial waters, a point which may or may not be important. Rivers are given three miles, but there are such things as oil rigs in the North Sea which I believe come under the judicial jurisdiction of the Scottish courts. I do not know whether it is intended that they should be brought in. Obviously one end of the pipe will be under the Scottish 1027 Assembly—Convention, call it what you will—for planning and a number of other reasons. I do not know what happens at the other end of the rig; that may come under a different form of legislation. This may not be the appropriate point in the Bill at which to ask this question, but it may be relevant to what the meaning of the word "Scotland" is in this sense.
§ Lord DIPLOCK
I confess that I feel considerable unease about paragraph 8 of Schedule 2, and for two reasons. I will not elaborate the vagueness of the words "necessary" or "expedient" for making other provisions effective for enforcement and "incidental" or "consequential". Whether they fall within those words will ultimately be a matter for decision either by the Judicial Committee of the Privy Council or, if it is in the course of litigation, by the House of Lords. Whether a matter is expedient is, I believe, an inapt one to he decided by a judicial body because basically it is a political, rather than a judicial, question. I must say that I should feel some difficulty, some incapacity, in deciding that sort of question; I should not feel confident that the decision I should make would be wise from the political point of view, and after all we want legislation to work and to be successful.
Secondly, I ask the noble and learned Lord, Lord McCluskey, and the Government to consider whether this paragraph is really necessary. There is plenty of legislation with ample legislative power; the Colonial Law of Validity Act, under which the Australian States still act today, prevents their legislating for anywhere outside their own territories, and they have got on perfectly well for many years, for one hundred or more years, without a provision of this kind. For those two reasons—doubts as to its necessity and doubts as to its being good policy to leave these kind of political matters to be decided by judicial minds—I suggest that consideration be given to omitting paragraph 8 from Schedule 2.
§ 4.58 p.m.
§ Lord McCLUSKEY
Again, I acknowledge that the noble Lord, Lord Morris, has tabled the Amendment because it raises issues the importance of which the Committee has well appreciated and out- 1028 lined. I am asked to explain why we have paragraph 8 in Schedule 2 at all—what it is designed to achieve—and I seek to do that by referring first to paragraphs 1 and 2 of the schedule. As noble Lords have pointed out, we start with paragraph 1, which defines the legislative competence of the Scottish Assembly by reference to "devolved matters", which are described, as I said, in Schedule 10. Schedule 10, particularly Part III, is long and complex and has been criticised on that account, but it is long and complex because Parliament has for many years past, at the instance of successive Governments, passed a great deal of legislation relating to matters which are now to be devolved, and that, however unpalatable, is a fact which this Bill must take into account.
We have formed the view that, when it comes, in a scheme of devolution, to dividing up the spheres of responsibility between the two legislatures, one cannot simply do this nowadays by means of some simple and uncomplicated list; we must deal with a great mass of legislation, all affecting different subject areas which interlock in a complicated manner, and that it is impossible to legislate on any major subject today without touching marginally on a host of other subjects. At the very lowest, there will be cross-references to be corrected in other legislation. Indeed, this can be readily seen by looking at any Bill which comes to this House; there is always a schedule of minor and consequential Amendments which attach to any major Act dealing with subjects such as health, or housing, or local government.
In our view, it follows from this that, if we give the Assembly legislative competence extending solely, simply and strictly to devolved matters, we shall be needlessly fettering it. Its legislation would always be incomplete, or there would always be a risk that it could not complete its legislation. So we must—subject to answering the second point which the noble and learned Lord, Lord Diplock raised—somewhere make provision for the Assembly's legislation to be perfected, to be completed, and for all necessary and consequential provisions to be enacted.
We have sought to do that in two principal ways. First, I should like to direct the attention of the Committee to 1029 Clause 34, to which I think those who have spoken would take no exception. This clause provides that:Her Majesty may by Order in Council make any such amendments of the law of the United Kingdom or any part of it … as appear to Her to be necessary or expedient in consequence of any provision made by or under any Scottish Assembly Act".I think that the objections that have been taken to paragraph 8 would not be taken in the same sense to that provision. Plainly that is the major piece of machinery which is available. But, as the Committee will appreciate, that involves coming each time to Parliament, and it involves Affirmative Resolutions. This is designed to deal with the kind of situation where a fairly major intrusion into the law south of the Border is thought to be necessary, and of course Parliament would have the necessary control over that.
We also have paragraph 8 of Schedule 2. The Government consider that the Assembly ought to be equipped to make its own consequential provisions; and that is the intention and the object of paragraph 8. To put it another way, paragraph 8 of the schedule serves a vital purpose in the ordinary practical legislative processes of the Assembly. As 1 have said, to legislate effectively on any particular matter it will usually be necessary to deal marginally with other matters. I gave the example of cross references to correct in other legislation; let me give an example within the context of Schedule 10 itself. It is strongly arguable that provisions of an Assembly Act on, for example, housing (which is contained in Group 4 of Part I of Schedule 10) could make a purely consequential amendment of the law relating to compulsory acquisition, which is not devolved—it is contained in paragraph 6 of Part II of Schedule 10—and yet it would still be legislation on housing within the meaning of the Bill. But clearly there could be some room for doubt, and the object of paragraph 8 is to remove that kind of doubt.
The noble Lord, Lord Harmar-Nicholls, deplored the looseness of the wording, but I have to tell him that we took the wording from the provisions of an Act passed in 1973, and introduced by the previous Government; it was the Northern Ireland Constitution Act. Of course, I accept 1030 that the context is rather different, and it is desirable to look at the context, very briefly, before founding too strongly upon the use of the same words, because it was envisaged there that the Northern Ireland Assembly could legislate on transferred matters, but not on excepted matters. However, it would be allowed to legislate on excepted matters if, in the opinion of the Secretary of State, the relative provision was ancillary to other provisions within the Assembly's ordinary competence. Accordingly, Section 5(7) of that Act provided a definition of "ancillary", which is the one we have taken and put into paragraph 8 of Schedule 2—
§ Lord McCLUSKEY
Let me read the wording so that I leave the matter in no doubt. Unfortunately, one has to go through subsections (1), (4) and (7), but I think the relevant wording is:For the purposes of this section a provision is ancillary to other provisions if it is a provision which is necessary or expedient for making those other provisions effective or which provides for the enforcement of those other provisions or which is otherwise incidental to, or consequential on, those provisions".That is the precedent for the wording which the noble Lord, Lord HarmarNicholls, thought—but apparently does not now think—was loose.
§ Viscount DILHORNE
The noble and learned Lord realises that that applies a subjective test, as it is in the opinion, is it not, of the Secretary of State or some other politician? Under paragraph 8, it is not a subjective test; it is a matter for decision of the courts. I echo and support strongly the observation of my noble and learned friend Lord Diplock, that it really is not a matter for judicial decision as to whether or not something is expedient. That is a decision for politicians.
§ Lord McCLUSKEY
I hope to deal with that particular matter when I reach what the noble and learned Lord, Lord Diplock said. If one takes it that a provision such as paragraph 8 of Schedule 2 is necessary for completing and perfecting competent legislation by tidying up the loose ends which protrude 1031 into areas which are not devolved, we recognise that it is incumbent upon us to make sure that there is machinery to safeguard against any possible abuse. There must be some way to afford the kind of protection which the noble Lord, Lord Boyd-Carpenter, thought might be lacking.
I was going to ask whether it is at all likely that the Scottish Assembly would want to start altering the law of England, or for that matter, the law of Wales; why on earth should it want to do so? But I had not taken account of the fertile imagination of the noble Lord, Lord Boyd-Carpenter, who has, quite properly, drawn attention to provisions where one could conceivably see that, as a necessary consequence of legislation intended to be domestic to Scotland, it might be desirable to extend provisions across the Border—
§ Lord BOYD-CARPENTER
To complete this point, may I ask whether the noble and learned Lord is therefore confirming my reading of the provisions—that they confer power on the Scottish Assembly to pass legislation operative in England or Wales?
§ Lord McCLUSKEY
That is subject to certain limitations. I do not accept the examples that the noble Lord, Lord Boyd-Carpenter, gave. For example, in relation to airspace, devolved powers relating to aerodromes do not extend to the regulatory powers of the Civil Aviation Authority. The Government accept that it is essential that such matters be dealt with on a United Kingdom basis. As paragraph 8 of Schedule 2 does not allow any cross-Border spillover into what is a non-devolved matter, I think that that deals with that particular point. The whole purpose of paragraph 8 of Schedule 2 is to allow the Scottish Assembly to change the law which applies south of the Border in so far as it falls within the wording of paragraph 8 of Schedule 2.
I was intending to come on to the safeguards, and I wonder whether I may outline them. First, with regard to consultation, it could reasonably be assumed that, before a Scottish Secretary promotes a Bill which laps over the edges of the devolved matters, he will clear it with Ministers, and indeed officials will surely have discussed the matter before 1032 this stage is reached. So the intention to legislate will, I think, be clear, and will be before the eyes of Ministers and Members of the Assembly.
Then there is the wording of the sub-paragraph itself. I refer particularly to the word "otherwise" in paragraph 8(b), line 36. I believe that that makes it fairly clear that the permitted provision has to be incidental to, or consequential on, other provisions which are within the legislative competence of the Assembly, as spelled out in Clauses 18 and 59, and Schedules 2 and 10.
I turn now to the third point. If the Secretary of State considers that a particular provision is not ancillary within the sense of the paragraph, he will be obliged, under Clause 19(1)(a), to refer that to the Judicial Committee. This is a powerful constraint, because if any provision of a Bill is found to be ultra vires, the whole Bill is stopped; that is the effect of the word "wholly" which appears in Clause 18(2).
There is also the matter which I mentioned when the noble Earl asked whether it would be convenient to take this Amendment along with Amendment No. 78. I do not want to anticipate that debate, but the Government accept that Clause 35 override powers should be available against consequential provisions made under paragraph 8 of Schedule 2, whether or not properly so made. Therefore, Clause 35 override powers are to be available, and that is the purpose of the Government Amendment No. 253, which noble Lords will see on the Marshalled List.
So one has the constraint of reference to the Judicial Committee and the overriding Clause 35. Then, finally, if required, though I would hardly think it necessary to use such a hammer to crack such a nut, there is the hammer of legislative override itself, United Kingdom legislation, to deal with the matter, although one cannot really conceive that that would be essential having regard to the other provisions.
So, if I may try to summarise the Government's view on this matter, if the Assembly's legislative competence is to be capable of operating effectively and efficiently and without a constant and 1033 possibly irksome need to come to Westminster to seek time-consuming orders under Clause 34 or even legislation, then we must have powers such as are set out in paragraph 8. We have looked very closely at the safeguards, and we believe that they are adequate for the purpose. In fact, we believe they are more than adequate: they are ample. We have looked also at the wording of the paragraph—and I would be more confident in making the assertions that I propose to make had it not been for the intervention of the noble and learned Viscount and the noble and learned Lord, Lord Diplock. In the light of what they have said, I think we must go back and look at the two points. I think we must ask: Is it necessary at all? That was a matter which we certainly considered; and, in a sense, one could say it might have been better had it never appeared in the Bill at all. Now, if one takes it out, one seems to be taking something away.
However, we will certainly consider whether, in the light of the ordinary doctrines referred to by the noble and learned Lord, Lord Diplock, it is essential; and we will also look at the wording. But if we come to the view that it is essential to have some such provision, then I shall have to say to the Committee that one can only, in a sense, tamper with the wording. You need, if you are going to have a provision of this kind, to have something to make it clear that the Assembly can have this very limited perfecting or completing power. So in that spirit I will take the matter away, if the noble Lord, Lord Morris, considers that proper, and look at it.
§ Lord HAILSHAM of SAINT MARYLEBONE
I do not know quite what my noble friend will do, but I am very glad to acknowledge the conciliatory and reasonable spirit in which the noble and learned Lord has just explained rather a complicated matter to the Committee; and I would not have intervened except to underline from my own point of view two things which were said by the noble and learned Lord, Lord Diplock. The first is that I think I am right in saying that he was referring in part of his speech to the Colonial Laws Validity Act 1865. That has operated very well in colonial and dominion legislatures for a very long time, and I am bound to say that, having made 1034 that reference to it. and should it turn out, as I think he implied, that the words now inserted in paragraph 8 are not present, it would seem to me to indicate that there is very great substance in the view that paragraph 8 is not necessary at all; and if it is not necessary at all it would remove a bone of contention if it were taken out. There is too much tendency in our modern legislation to insert provisions ex ahundanti cautelâ—I use the old English pronunciation of Latin despite the noble Lord, Lord Mackie, who thinks he knows how the Romans pronounced it. At any rate, there is too much of a tendency of that kind. It was noted very recently in a remarkable book by a gentleman called Sir William Dale—that is, the extraordinary prolixity to which modern statutes are beginning to tend—and if a bone of contention can be removed altogether, this would save us a lot of bother on Report.
The other point I wanted to make is that on the assumption (which I hope I am wrong in making) that something of this kind is required, or is thought to be required, by the Government, there is a clear distinction, I think, between the word "expedient" and the words "ancillary" and "consequential", and possibly "necessary", for the reason that the noble and learned Lord, Lord Diplock, gave. When you get a question of expediency, you ought, I think, in drafting a statute, to make the Executive responsible, because expediency is not well decided by judicial people, not because they are not competent to decide it but because it is of great importance to our constitution to preserve the Judiciary from being compelled to interfere in political matters and from there by rendering themselves subject to unnecessary criticism. So that, if the word "expedient" is required, I would suggest to the noble and learned Lord that some machinery should be discovered to make the Executive responsible for deciding what is expedient, so that they may be answerable to Parliament, and not the courts.
On the other hand, when you are dealing with words like, "ancillary", or "consequential", and I think also "necessary", although I express that view less dogmatically, you are dealing with words which are in fact construed by the courts without difficulty almost every day of the week, and in a context which is not altogether dissimilar from that which we 1035 are now discussing; because the vires of a company as defined by its memorandum of association almost aways contains some reference to ancillary matters of this kind, or, alternatively, judicial decisions about the vires of various corporations also cover things which are "ancillary". For instance, in the matter of the purposes of a charity, which in this respect is not defined in any statute, which are ancillary to the purposes of a charity—I am sorry to tell the noble and learned Lord, Lord McCluskey, that this is a matter of the law of England rather than of Scotland, but it is, I think, fairly trite law of England—are things which are constantly decided by the courts. I do not think the judges would find any embarrassment in applying that, but they would find, or might find, that, even if they were quite willing to handle questions of expediency, it would bring about in Parliament the kind of criticism of the Judiciary which all of us would prefer to avoid.
§ Lord WILBERFORCE
May I make one very modest suggestion which may commend itself to the noble and learned Lord? It is that he should consider the doctrine of pith and substance. It has long been a principle of constitutional law in the British Commonwealth that in deciding whether legislation is valid or not you consider its pith and substance—that is, the heart and core of it—and the fact that it may spill over marginally into something outside does not furnish a ground for declaring it invalid. I venture to think that if the noble and learned Lord digs out the authorities about this he may find it sufficiently takes care of the problem, without the need for paragraph 8.
§ The Earl of PERTH
If I understand aright, the noble and learned Lord, Lord McCluskey, is to think about these things again. I would ask that, in thinking about those things, he would direct his attention particularly to the question of pollution, because it seems to me that in the case of pollution there is a real likelihood of a difference of opinion between England and Scotland. Let us take the case, on the Solway, of the River Nith. On both sides there are important industrial factories and plants.
§ The Earl of PERTH
Certainly: and the ICI, Dumfries. It may well be that the people of Scotland will think that they want to have tougher pollution measures, or less tough measures, than those in England. All I would ask is that, when this whole matter is considered again, the possibility of conflict from a totally different point of view as to what is or is not necessary being taken on one side of the Border from that taken on the other is brought into account.
§ 5.20 p.m.
§ Lord BOYD-CARPENTER
Only for the record, I should like—in view of the line the noble and learned Lord has taken, I should like him (it being on the record) to consider it further—to take up his contradiction of the point I made about the devolution of aerodromes and the effect on the issue raised by this Amendment. He dismissed my argument that there might be a clash of interests in respect of the approach patterns of airports in England and Scotland by drawing my attention to the fact (of which I was already aware) that the powers and activities of the Civil Aviation Authority are, mercifully, not devolved under this Bill. But the noble and learned Lord, in using that argument, must have been unaware of the fact that, except at aerodromes owned by the British Airports Authority, the Civil Aviation Authority hardly ever does the airport local approach control. That is undertaken by the airport authority.
Subject to what he may feel, the fact that Schedule 10 contains "aerodromes" would seem at least to raise the presumption that the airport control at those aerodromes—if undertaken by the local aerodrome authority, as, practically speaking, in all except British Airports Authority's airports it is—would be devolved; and, therefore, there may be a real clash here. May I suggest one solution of this would be to accept an Amendment which already stands on the Marshalled List in respect of Schedule 10, to delete "aerodromes". Modesty forbids me from indicating in whose name that Amendment stands.
I am grateful to the noble and learned Lord and to all those who have spoken on this Amendment. Notwithstanding that, I could not help 1037 feeling that what the noble and learned Lord is suggesting in his answer is that, during the course of the preparation of this Bill, it was really too much like hard work to get the Bill right. The difficulty that he pointed out, the mix of law, goes to illustrate what a constitutional ants' nest this piece of legislation has stirred up. I am grateful for his suggestion that he will look at this point further, and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES
(Baroness Wootton of Abinger): I have to inform the Committee that if Amendment No. 223 is agreed to, I will not be able to call Amendment No. 277.
§ 5.23 p.m.
Lord WILSON of LANGSIDE moved Amendment No. 223:
Page 42, line 10, leave out sub-paragraph (2).
The noble and learned Lord said
Lord Morris has asked me to move this Amendment and I should acknowledge at the outset that it does not, at least as I present it, raise questions of such magnitude and importance as did the last Amendment. I need only say that I think it is probably a majority view, both in your Lordships' House and outside, that the Government were right not to devolve tax-raising powers to the Scottish Assembly. However, it appears by paragraph 4(2) of Schedule 2, certain powers over the rating system in Scotland are conferred on the Assembly. There is, I understand, considerable doubt, particularly in industry, as to the precise extent of these powers which are conferred by this provision.
The object of the Amendment, as I present it, is simply to get from the Government a fuller and clearer statement of precisely what are the intent and meaning of paragraph 4(2) of Schedule 2. This is an area, particularly from the point of view of industry, in which certainty is of some importance. There is, I understand, concern within industry that here we have another tier of Government given power to interfere in an area where, particularly to those responsible to industry, certainty is all-important. I would, therefore, ask the noble Lord who 1038 is to reply to expand upon the intent and meaning of these provisions. I beg to move.
§ The Earl of MANSFIELD
As it is my Amendment which will fall if that of the noble and learned Lord, Lord Wilson of Langside, prevails, perhaps it would be convenient to speak to my Amendment at this moment of time. At first blush, the words in the Schedule raise the eyebrows. One has been brought up to the belief that not only was this Bill not intended to give any tax-gathering powers to the Assembly but that, as matters stood and according to the philosophy of devolution as this Government see it, it is impossible to make provision for any tax-raising powers which would not have a profound and, possibly, disastrous effect upon the unanimity of the United Kingdom.
What I should like to ask the noble Lord who is about to reply is what is meant by this. Under head (a) the competence is within the Schedule if it is only designed to alter a rate levied at the passing of this Act "without substantially changing its character". I ask this of the noble Lord, Lord Kirkhill—who is looking expectant, and in that sense I am expecting him to reply. What is a rate in this sense? Is it, perhaps, what I, in my ignorance, understand to be a rate imposed by a local authority'? I see him nodding agreement. If so, one asks why it is necessary that it should be written into the Bill.
Secondly, what are the circumstances in which a rate could be altered by a local tax or substituted by a local tax; who would be the unhappy citizens who would have to pay the tax; and what would be the rate of the tax? Could the noble Lord confirm certain suspicions that this might be a way of enabling the Scottish Assembly to slip in something which would be highly unwelcome (such as a tourist tax or rate of VAT or something like that) as it were, by the back door in this Bill? Thirdly, what is a local tax under head (c) of sub-paragraph (2) which can be altered without substantialy changing its character? These are really matters of information, but I think your Lordships would be interested to know whether this sub-paragraph has not in it a great deal more than appears.
§ Lord BOYD-CARPENTER
I should like to ask the noble Lord when he comes to reply to carry his explanation even further than the noble Earl asked him to carry it. There appears in all the three subsections the words "without substantially changing" or words to that effect. I should like him to give some interpretation of those words. Do they mean that you can alter the rate of the rate, the amount or the level of the rate to an unlimited extent so long as you preserve the structure for collection? Or does it mean you have to remain substantially on the current levels? It is possible, as certain local authorities in England have shown, so to change the character of a local rate, by doubling or trebling it, that what had been a reasonable and accepted impost has become an outrageous burden. I should like to know whether these words "without substantially changing" are intended to put some limitation on the power to increase the amount raised or whether they bite solely on the machinery by which it is raised.
§ 5.30 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
The noble and learned Lord, Lord Wilson of Langside, as indeed the noble Earl, Lord Mansfield, and the noble Lord, Lord Boyd-Carpenter, have asked—me at least initially—to explain the thinking behind paragraph 4 and this I should do first of all. The intention is declared unequivocally in paragraph 4(1) of Schedule 2. That is an intention that the Scottish Assembly should have no general legislative competence! in relation to tax matters. But, to go on from there, what sub-paragraph (2) of paragraph 4 does, and what it is strictly limited to doing, is to provide the Assembly with a perfectly appropriate competence to legislate in respect of the local government rating system which of course is specifically devolved in Group 5 in Part I of Schedule 10.
I have said that the effect of subparagraph (2) of paragraph 4 is strictly limited, I should go on to say that it is in fact limited to the extent that the Assembly's competence is confined, first, to modifying the existing rating system, secondly, to replacing the existing rating system by a similar local tax—that is, one levied only by elected local authorities 1040 and related to the occupation of property. That would enable a change to be made from the present basis of assessment on the notional rent to, for instance, capital value, and, thirdly, to making further modifications to such a local tax. The Assembly could therefore change the existing system within a limited range of options in the light of experience. What it could not do would he to introduce an entirely new form of tax-raising power at local authority level.
The effect of Lord Wilson's Amendment would be to deny the Scottish Assembly any competence whatever to legislate about local authority taxation. But, in the Government's view, this would be at odds with the view already stated in the White Paper of November 1975. For noble Lords who wish to look at it, this appears at paragraph 110. At that paragraph, it states clearly that the Assembly should have powers to adjust the application of the systems of rating and valuation for rating to suit local conditions.
The White Paper went on in the same paragraph to state that only Parliament would be able to authorise new forms of local taxation. That, in the Government's view is what the Bill achieves; to do otherwise would involve a significant derogation from the scope of the devolution of local government and local finance, and it would create a boundary between devolved and non-devolved matters within the general devolved area of local finance which could not, in my view, be rationally defended. Looking at the position in a purely practical way, how well would Parliament be placed and how well would the United Kingdom Government be placed to consider legislation in this part of a subject—local government generally and local government finance in particular—which is otherwise devolved?
May I also add that Parliament would retain to itself the sole right to legislate to create any entirely new taxes. This is in line with the Government's belief that the creation of any entirely new tax would carry serious implications for national finance and for national policies in the reserved fields. Such implications would arise for instance if the present system were replaced by a local income tax or by a power for local authorities to levy tax on motor vehicles, for example. The 1041 Scottish Assembly will have no competence in such matters.
The noble Earl, Lord Mansfield, thought that we might link these two Amendments, and I welcome the suggestion. The noble Earl's Amendment does not go quite so far as the Amendment to which I have been speaking. It appears to accept the general basis of the Government's attitude but seeks to confine the Assembly's power to modifying the existing system. All I can usefully say to the noble Earl is this: there is a difference in view between the Government side and the noble Earl's own perfectly tenable position. We think that the noble Earl's Amendment draws the boundary in the wrong place. We would not say more than that. We think that such a restriction as the noble Earl suggests could well cause unnecessary frustration if the Assembly wished, quite reasonably, to embark on a wider reform of local finance that stopped short of having the kind of national repercussions that the present arrangements are des1igned to guard against.
In the Government's view, the Assembly should have a competence to arrange devolved matters in such a way as best suits Scottish conditions. This was certainly a policy emphasis that developed in the other place. After devolution, the Assembly will be in the best position to assess these conditions and provide solutions. I do not think that decisions on these matters have implications for the rest of the United Kingdom. Therefore, they fit the Government's criteria for deciding what matters can be and should he devolved. In the Government's view, that just about strikes the right balance. That is as fair an expression of the Government's view as I can give the noble Earl.
§ 5.37 p.m.
§ Lord HARMAR-NICHOLLS
The noble Lord has explained what the Government intend this paragraph to mean. I wonder whether, on close examination, it does mean that. I am worried about the word "substantial". It is perfectly clear from what the noble Lord has explained that the Government do not want the devolved Assembly to have powers to bring in a new form of tax or a new tax. One accepts that. But, in explaining that, he said that the Assembly
1042 would have new powers to raise the rateable value and do things like that. It would not be substantially changing the rate but would be extending its scope.
§ Lord KIRKHILL
Perhaps I expressed myself badly. I was suggesting that the rating formula could be altered.
§ Lord HARMAR-NICHOLLS
If the formula results in a higher rateable value under which extra rates have to be paid, a rose by any other name would smell just as sweet. I do not know whether it makes much difference whether I am being asked to pay more tax or more rates. It is the same impost that I have to meet.
§ Lord HARMAR-NICHOLLS
It may not of course. It has been made quite clear by people who frighten me and who may be in charge of the Assembly that they want to handle the cash. That is why they have grumbled about the financial provisions. They have said that they want to be in a position to get the cash, handle it and show that they are in charge of some of the finances in Scotland. As the noble Lord explained, the formula in this paragraph could be changed. It could result in extra rates being paid. That would not be a new tax. It would fit in with this, but, in terms of the impost upon the majority of people in Scotland who have to pay rates, it would mean that they had this extra obligation to meet.
Perhaps the noble Lord, Lord Wilson of Langside, had this in mind when he was concerned with this paragraph. Unless it can be defined a little more clearly to avoid this extra impost being put upon the citizens of Scotland, I believe that we ought to make it clear in the referendum that this is possible. If I am a Scotsman and am asked to vote in the referendum as to whether or not I want this measure, when it becomes an Act, I may, if I have a feeling that there is no possibility at all that it is going to cost me any extra money on my rates or taxes, be inclined to support it for all sorts of other emotional reasons which the noble Lord. Lord Mackie of Benshie, so effectively represents. If I thought the result of this paragraph in this Act meant that there was a real risk—
1043 because I could form a judgment as to the mentality of the people who may get a majority in the Assembly and would have the power to do these things—that those sort of people would in this roundabout way put this extra impost upon me, it would make a very big difference to the way I would vote in the referendum.
So what I am saying is that this paragraph ought to be made clearer than it is at the minute as to whether or not they will have no powers from this either to levy excessive rates or taxes in order to bolster up the power that they are seeking before they take the next step towards separation, or whatever it is. That ought to be made crystal clear, before it comes to any referendum, so that people when casting their votes will know that this is the risk they are taking.
It would be better from every point of view if the noble Lord could look at it again and make it mean in words what he has just explained the Government want it to mean. I am not contesting in any way what the Government want and I accept that their integrity is absolutely clear, certainly after the explanation which has been given by the noble Lord; but I am saying that these words could result, if a group of people in the Assembly so wished, in bringing about something which is equivalent to a change of tax. If that is a possibility, the people who have to take a final decision in the referendum ought to know about it. It ought not to slip through.
§ Lord TAYLOR of GRYFE
I am about to put a point which is largely the same as that raised by the noble Lord, Lord Harmar-Nicholls, and perhaps the noble Lord, Lord Kirkhill, would deal with them both at the same time. This is a difficult area—the area of relations between the local authorities and the Assembly—and unless it is clearly defined and understood there will be continual tension between the Assembly and the local authorities. Some noble Lords have expressed the view that the new Assembly should undertake as one of its first duties the reorganisation of local government, but what will be fundamental to this relationship is the question of financial powers and the ability of local authorities to raise local finance.
1044 The noble Lord, Lord Kirkhill, has made it abundantly clear that any fundamental change in local rating and local taxation would not be within the competence of the Assembly but within that of Parliament. Could he just define the areas within which the new Assembly could have interventionist powers concerning local finance? Could he give some examples, for instance, of where it would be competent to interfere and where it would be incompetent to do so?— because if the Assembly has substantial powers in this direction it could certainly undermine the authority of and respect for local government.
§ Lord KIRKHILL
I should like, if I may, to say briefly to both noble Lords, Lord Harmar-Nicholls and Lord Taylor of Gryfe, that if there was—and I myself gave the example earlier—a formula rating change passed through the Assembly, the result of that change in financial terms would not go to the Assembly as such but to the local authorities concerned, who are the rating authorities.
In regard to the specific point just raised by the noble Lord, Lord Taylor of Gryfe, we shall be discussing his point when we reach Clause 63, which has rather wide financial implications. I think it would be rather more appropriate to reply to him in depth at that stage. However, I can confirm, as he will know well, that the rate support grant stands as a devolved function and of course there will be a relationship between the local authorities and the Assembly at that point as there is presently between the Secretary of State and the local authorities. These are matters which will have to be discussed later, I think.
§ 5.45 p.m.
Lord CAMPBELL of CROY
The noble Lord, Lord Taylor of Gryfe, has rightly pointed out how important the relationship between the new Assembly and the local authorities is going to be, and the noble Lord, Lord Kirkhill, has sought to explain the intentions of the Government in this passage from the Schedule. We are grateful to him, because certainly an explanation was necessary. It was very difficult to follow what the Government intended, and we are glad to have confirmation that the
1045 word "rate" here does mean a local authority tax—in that sense, "the rates" as we know them only too well.
I should like to ask the noble Lord some questions arising from the explanation that he has given. He made it clear that a local tax is all that the Assembly could try to alter; but does a local tax mean, by definition, the equivalent of rates, that is to say, something controlled by each local authority? Would a local tax introduced in place of a rate still be something the level of which was set by each local authority within its control? I think it is very important that that should be known and defined, because a local tax could be just a general term meaning a tax levied in Scotland and not elsewhere. Again, could the noble Lord give us an example of the kind of tax which could be brought in to replace the rate? What have the Government in mind? As we know, there are limits within EEC regulations as to what kind of tax can be brought in in place of rates. The Government clearly must have something in mind, otherwise they would not have made this provision in the Bill.
My next point is one that I put without considering the question of whether or not it is wise, because that is a larger question, that there should be a tax-raising power. The Government, from this explanation, have confirmed that it is their intention that there should not be a tax-raising power for the new Assembly. I think that when we reach the later financial clauses we can discuss that general question more fully, but what we are concerned with here in the Amendment of my noble friend and of the noble and learned Lord, Lord Wilson of Langside, is whether the wording of this Schedule carries out without ambiguity the intention which has just been explained by the noble Lord, Lord Kirkhill.
Sub-paragraph (1) says quite definitely that the Assembly is not empowered to impose or alter any tax—I repeat "any tax"—which presumably anybody reacting the Bill for the first time would think included a local tax. Sub-paragraph (2) appears to describe how a rate can, first of all, be converted into a local tax and then how the local tax can be altered. It does seem contradictory. The only qualifying words are "not substantially"
1046 and, as we know only too well from the debates we have had in this Chamber on other measures, the words "substantial" and "substantially" can be read in many dfferent ways. There has been a lot of argument as to whether or not the words shall appear in Bills. So that does not help to clarify the situation here.
In addition to the questions I have put to the noble Lord, I should like to ask another, to which he may revert later in the Bill. Will he make it clear whether it is completely within the competence of the new Assembly, as the Bill is now drafted, to carry out a reorganisation of local government in Scotland?—because many of us realise that if a new Assembly comes into existence it may well be necessary to make changes in local government: otherwise there are going to be too many tiers of government and Scotland will be over-governed. One of the possibilities then could well be the disappearance of one of the present tiers of government. Is the Assembly to be completely in charge of that? Local government is devolved to the Assembly. If it is to be completely in charge of that I can see a good deal of conflict arising between the local authorities and the Assembly.
The question of financial repercussions will also arise—what is going to happen to the rates which a tier of local authorities is at present levying? From the wording we are now discussing it certainly appears that a little ingenuity or interpretation by an Assembly could well end up by the Assembly receiving revenues from what is called a local tax, unless the noble Lord can answer some of the points I have raised.
§ The Earl of LAUDERDALE
May I add something in support of my noble friend Lord Campbell of Croy? If ever there was a need for clarity it occurs here. One thing that is quite clear about this Bill is that it is going to start a colossal row and tension between the Convention, on the one hand, and the local authorities, on the other. There is power in the Bill to abolish the regions or the districts, as the case may be. What is so frightening about this Schedule is the ambiguity. The noble Lord—who, after all, has a long and distinguished career as Provost of Aberdeen and possibly knows more about local government than anyone else in this House—will know very well
1047 that there must already be apprehension in the regions and districts that some of their functions, or alternatively their rate-raising powers, are to be taken from them. Is it not common sense to expect that where considerable power is already entrenched, particularly in the regions, they will themselves lobby and perhaps put up candidates in one form or another to come into the Convention and stifle this very operation? In fact this is a recipe for conflict.
It is because of that recipe for conflict, which could tear Scotland apart so that the proposed Assembly—or Convention, as I prefer to call it—becomes a source of disunity and not unity in Scotland, that I believe it is so important to get this matter absolutely clear. In many parts of the regions there is already foreboding of clash and confrontation on this point, the more so because the Convention or Assembly would itself seem to be a rather futile affair unless its Members are disciplined by the responsibility for raising money which they are going to spend and facing the unpopularity of raising more money than is currently being raised. Again behind the whole conception of the Bill—for those who have apprehensions about it, as I have—is the fear that the Assembly or Convention will keep on asking Westminster for more money, whereas, saddled with a fair and square responsibility to raise extra funds if they want to spend more themselves, they would be curbed in that appetite.
Will the Government recognise—as I am sure the noble Lord must from his long and distinguished experience—that there is here the germ of very serious conflict between the existing local authorities and the new gathering? For myself, I should like to see the Convention have proper money-raising powers. Without that it cannot be seen to be responsible. This is all burked in the Bill except in so far that there are powers in it to grab local rate-raising powers. That is a source of conflict. If there is a case for clarity here more than anywhere else in the Bill, I believe it lies in this danger of conflict between several tiers of government.
§ Lord WILSON of LANGSIDE
Will the noble Lord forgive me if I add one incidental question to the formidable list
1048 of those which have already been put to him? This I ought to know from my reading of the Bill and what has gone before, but can he confirm what will be the position so far as industrial and other de-rating provisions are concerned in future? I assume the Assembly will have legislative powers in these regions. I am sorry to put this to him at the end of the debate rather than at the beginning but I overlooked the matter. Am I right in that assumption?
§ Lord KIRKHILL
May I first of all reply to the very pertinent point raised by the noble Lord, Lord Campbell of Croy, and remind him quite gently that I did indicate earlier in my remarks that a rate is a tax levied only by a local authority and related to the occupation of property. There can be no equivocation about that point. The Government's position is that such a tax need not take the form of rates in the pound on an assessed valuation. I must say that I gave an off-the-cuff example of capital value as being one method. I suppose formula rating is another. I think it is fair to say that the Government have no conclusive view about this. If the Assembly wished to take some other formula which no one is yet thinking about then provision would allow them to legislate accordingly. That is the position we are in this afternoon. I can confirm to the noble Lord, Lord Campbell of Croy, that the Assembly would be in a position to re-reorganise local government. That is certainly within their competence.
I should perhaps say to the noble Earl, Lord Lauderdale, that I had been expressing earlier—and I think I did so with clarity—that if there is a change in the rating formula then the monies which accrue from that change go to the local authorities. The Scottish Assembly cannot pinch the money. There can be no question of that, as I thought he was suggesting.
§ The Earl of LAUDERDALE
I am much obliged to the noble Lord, but he has earlier confirmed that there are powers in this Bill to re-reorganise local government. Supposing that involves, shall we say, abolishing the regions; what happens to their rate-raising powers? In that case do they not go to the Assembly?
§ Lord KIRKHILL
No. The rate-raising power then goes to whatever type of authority is then created at the local authority level. For example, it might be a new one-tier authority.
§ The Earl of LAUDERDALE
I am much obliged to the noble Lord for giving way, he is always so courteous and kind and helpful. Supposing for the sake of argument the Convention decides to abolish the regions. There are rates raised by the regions—would they not then fall to be raised by the Convention or the Assembly?
§ Lord KIRKHILL
The rates which would then fall to be raised would be levied by whatever type of local authority structure was put in the place of the regions. Quite clearly there can be no dispute about that.
§ The Earl of LAUDERDALE
Could not the Assembly literally take over the powers and functions of the regions?
§ Lord KIRKHILL
If the Assembly were to behave in what I would consider in the circumstances outlined as a completely outrageous manner, it would no longer be a rate. The political consequences of that kind of politickering would be quite disastrous for the Assembly. I cannot see that happening at any point.
May I make one other point? The noble and learned Lord, Lord Wilson of Langside, asked the position on industrial de-rating. The position would be that the Assembly could legislate on that point.
§ Lord WILSON of LANGSIDE
I am grateful to the noble Lord on the Front Bench for his careful explanation, and to other noble Lords who took part in the debate. In the circumstances I think the sensible course for me would be to ask the leave of the House to withdraw my Amendment.
§ Lord HARMAR-NICHOLLS
Before the noble and learned Lord asks the leave of the House to withdraw his Amendment, may I ask a question? Could the Assembly raise a lottery? That would not be a tax; it would not be a rate. If it came off it would be a very good way of getting cash into the till. Is that ruled out?
§ Lord WILSON of LANGSIDE
I was about to say that I thought the sensible course, if your Lordships agree, is that I should ask for leave to withdraw my Amendment. That leaves the Amendment of the noble Earl, Lord Mansfield, still standing, and I shall be happy to leave any further comments to his much more articulate voice.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 77 not moved.]
The DEPUTY CHAIR MAN of COMMITTEES
I have to draw your Lordships' attention to the fact that if Amendment No. 295 is agreed to, I cannot call Amendment No. 78.
[Amendment No. 295 not moved.]
§ 6.1 p.m.
§ The Earl of MANSFIELD moved Amendment No. 78:
Page 42, line 37, at end insert ("Provided that nothing in this paragraph shall affect the powers of the Secretary of State under sections 35 and 37 of this Act, and a provision may be a reserved matter within the meaning of those sections notwithstanding that it falls within this paragraph").
§ The noble Earl said: We have already had a wide-ranging and very considerable debate on this Schedule and, more particularly, on this paragraph of the Schedule. There is one matter, though, about which I should like to ask the noble and learned Lord,' Lord McCluskey. The question arises as to whether override powers can be used in relation to something which extends beyond Scotland. Coupled with that is the question which I want to ask the noble and learned Lord.
§ In his opinion, does Schedule 2 extend to Statutory Instruments? It is an important little point for this reason. Clauses 18 and 19 extend to legislative competence and the scrutiny of Bills. Nothing has so far been said as to Statutory Instruments. I was aware that a new Amendment, so to speak, No. 253 has been tabled in the name of the noble and learned Lord the Lord Chancellor, which, as it were, rewrites subsection (2) of Clause 35. But that clause also goes to Bills, and not to Statutory Instruments 1051 made in consequence of Bills. In those circumstances, it may just be that the device which my noble friend and I have used in our Amendment, would serve the purpose better than what the noble and learned Lord said would be the ease with Amendment No. 253. At any rate, I put it forward for his consideration. I beg to move.
§ Lord McCLUSKEY
As I indicated earlier, the Government sympathise with the objective behind this Amendment, or at least that part of it which relates to the legislative competence of the Assembly. Indeed, that is why the Government have put down their own Amendment No. 253, which I shall seek to explain when I come to it. That Amendment will ensure that the Secretary of State can use his override powers under Clause 35 to block an Assembly Bill, notwithstanding that it is within the legislative competence of the Assembly by virtue of paragraph 8 of Schedule 2. Of course, all this is subject to such reconsideration of that paragraph as we make in the light of the observations from your Lordships earlier.
With regard to the second point of whether Schedule 2 extends to Statutory Instruments, I have to suggest to the noble Earl that it does not. The reason for that is that Schedule 2 derives its whole existence from Clause 18, subsection (2) of which states:Any question whether a provision contained in a Scottish Assembly Act is within the legislative competence of the Assembly shall he determined in accordance with Schedule 2 to this Act.I think it is clear—and I hope that I shall be corrected if I am wrong—that Schedule 2 is therefore concerned with, and only with, legislative competence, and not with the possibility of making Statutory Instruments of that kind which are dealt with in other clauses of the Bill.
It is for that reason that, while we are happy to accept the principle that lies behind that part of the Amendment which relates to Clause 35, we are not happy with the Amendment in so far as it relates to "Section 37", as it is properly put in the Amendment. We think that that is not relevant to this matter. Accordingly, I shall in due course be moving Amendment No. 253, which deals with that first point. For the reason I have given, it would not be appropriate to accept the 1052 second part of the noble Earl's Amendment and perhaps, in the light of Clause 18(2) and its provisions, and the character of Schedule 2, he would like to reconsider whether he wants to press that at any stage.
§ The Earl of MANSFIELD
I am grateful to the noble and learned Lord, but perhaps I may ask him where in the Bill subordinate legislation is dealt with. May I go back to the analogy of rabies? It would be within the competence of the Scottish Assembly to pass a Bill dealing with rabies, if it should come along, and it is quite within the bounds of probability that the Secretary dealing with such matters could, in effect, initiate the necessary subordinate legislation. To quote an example, it might be that dogs on each side of the Tweed should have to wear muzzles if there were an outbreak of rabies, which he thought could spread from the North of England into Scotland. If Schedule 2 does not cover that eventuality, then what does? If nothing does, should it not be written in?
§ Lord McCLUSKEY
I think the position is that subordinate Instruments are dealt with in a great many places in the Bill, and we are coming fairly soon to some of them. But may I refer, in particular, to Clause 21(1) which states:Where, by or under any Act passed before this Act, any power to make, confirm or approve orders, rules regulations or other subordinate legislation is conferred on a Minister of the Crown, then … it shall be exercisable by a Scottish Secretary.That is one of the examples. Of course, there is Clause 22 and there are various other provisions, including the Schedules, relating to this matter. I am sure that the noble Earl will have noticed them. Does that sufficiently answer his point at this stage?
§ The Earl of MANSFIELD
I do not think that it does, but I shall not press the noble and learned Lord any further on it tonight, because I am not sure that this is the right part of the Bill. But I am sure that the noble and learned Lord has perceived my point, that there may well be subordinate legislation which is passed in consequence of a future Act. I am well aware of what Clause 21 says about past Acts, but there may be legislation subordinate to, and consequent on, a 1053 perfectly proper Act of the Scottish Assembly, which may then, as it were, be repugnant, although it may be months or years after the passing of the original Assembly Act. That is the situation which I was postulating, and that is part of the situation which this Amendment tries to foresee. But, in the circumstances, I shall not pursue the matter tonight and I beg leave to withdraw the Amendment.
§ Amendment, by leave withdrawn.
§ Shedule 2 agreed to.
§ Clause 19 [Scrutiny of Assembly Bills]:
§ 6.9 p.m.
§ Viscount DILHORNE moved Amendment No. 79:
Page 8, line 11, after ("Secretary of State") insert ("and the First Secretary").
§ The noble and learned Viscount said: It might be to the convenience of the Committee if with this Amendment we consider Amendments Nos. 80, 81, 296, 297, 84 and 88. They all deal with the same subject and with three particular aspects of that subject. Last Wednesday night we had a rather excited debate on the question of the effect of an Assembly Act once it had received the Royal Assent. It was said by my noble and learned friend, whose opinion I always respect even if I do not always agree with it, that for the United Kingdom Parliament to make a law that an Assembly Act which had received the Royal Assent should be the unchallengeable law of Scotland was the negation of the rule of law. I was a little astonished at the limitation on the powers of the United Kingdom Parliament. However, we are not discussing that point tonight and I mention it only for this reason: if we are to have Acts of the Assembly which are challengeable at any time in the courts of Scotland, England and Wales, then it seems to me to be most important to reduce, so far as possible and so far as properly can be done, the number of occasions on which those challenges will be made.
§ However important it may be that there should be the right of challenge of an Act when it is passed, surely it is much more important that there should be adequate machinery to prevent the Assembly from passing an Act and that Act getting the Royal Assent if, in fact, the Act is outside 1054 the competence of the Assembly. I hope that there will be agreement on that point at least and that tonight we shall not have such an excited debate.
§ With regard to this matter, my noble friend Lord Home of the Hirsel and I think that the Bill is seriously defective, and I should like to ask the Committee to note three points. I ask the Committee to note, first, that the only person who can refer a Bill of the Assembly to the Judicial Committee for a decision as to whether or not that Bill is within the competence of the Assembly is to be the Secretary of State for Scotland. The second point that I ask the Committee to note is that before he can do so, the Secretary of State must have formed the opinion that the Bill is ultra vires the Assembly. The third thing which I ask the Committee to note is that before the Secretary of State can refer it to the Judicial Committee, the Bill must have passed the Assembly.
§ Whether or not a Bill is within the competence of the Assembly as dealing with devolved matters is a pure question of law. It involves consideration of the terms of this Bill when it becomes an Act and the terms of the Assembly Bill. It is those two documents which will have to be looked at. It is a purely legal question. Only when that is done can one reach a decision as to whether or not a Bill is within the competence of the Assembly. Under this Bill as it now stands, however, it is not a lawyer who is called upon to decide this legal question. It is the Secretary of State.
§ Those who hold, and have held, that high office are almost invariably persons of high distinction but I do not think, although I may be wrong, that they have ever been very distinguished lawyers—and that maybe is a matter for regret. Indeed, it was one of the main arguments last Wednesday of my noble and learned friend Lord Diplock that if my Amendment then had been accepted it would have been left to a political figure, the Secretary of State alone, to decide whether or not to make a reference to the Judicial Committee.
§ We may be told that the Secretary of State will act on the advice of the Lord Advocate. Presumably he will have the advice of the Lord Advocate, but is the Secretary of State bound to act upon it? 1055 If he is not bound to act upon that advice, the Secretary of State—a political figure who is more involved in politics than law officers normally are, although nowadays they seem to be more involved than they were in my day—is surely exposed to the liability of being accused of referring a Bill to the Judicial Committee for political reasons. I should have thought that it was desirable to avoid that liability, if possible. If the Secretary of State is bound to act on the advice of the LordAdvocate,would it not be better in this Bill to put the responsibility on the Lord Advocate for deciding whether or not to make a reference? I should have thought that then he would be far less likely to be attacked on political grounds.
§ If the Secretary of State forms the opinion that the Bill is ultra vires, and he refers it to the Judicial Committee and if that Committee decides the Secretary of State is wrong and that the Bill is intra vires, what then will be the position of the Secretary of State? He will have held up—it may be for months—and held up wrongly the enactment of an Assembly Bill, and I should have thought that he would be liable to be attacked on that account. And if it be known that he and his Party are opposed politically to the Party which forms the majority in the Assembly, the Secretary of State's liability to be attacked on political grounds for making the reference to the Judicial Committee will, it seems to me, be considerably increased.
§ If the decision is to be made by somebody who is not a lawyer, as the Bill proposes then my noble friend and I think that it should be not only the Secretary of State who can make the reference but the First Secretary as well. That is the first point which is raised by Amendment No. 79 in this series of Amendments.
§ However, since tabling that Amendment and the consequentials to it, I have been giving further thought to the matter, and I think now that the Lord Advocate should be the person responsible for deciding in the first place this question of pure law. We were told, I think last Wednesday, by the noble Lord, Lord O'Neill of the Maine, that in Northern:Ireland the practice is to obtain a certificate from the Attorney General of Northern Ireland. The noble Lord said that the system had worked 1056 there very well. I should have thought that such a system would be an improvement. Because we have not put down an Amendment to that effect, I should like to say straight away to the noble and learned Lord the Lord Chancellor that we shall not be pressing that Amendment to a Division. That may give him some slight relief.
§ That is the first question which is raised by this series of Amendments. The second question is whether whoever has power to refer should have power to do so only when he has decided that the Bill is ultra vires. I think that is too strict a test. The arguments may be evenly balanced and sometimes it may be very difficult to decide that the Bill is ultra vires. When there is real doubt as to whether or not the Bill is infra vires should not there be power to refer it to the Judicial Committee and obtain the opinion of that Committee? As the Bill now stands, if there are doubts they cannot be resolved before the Bill receives the Royal Assent. They can be resolved only following the post-enactment procedure, because the Secretary of State has to be of the opinion that the Bill is ultra vires before he can make any reference. That is the second point.
§ The third point I want to raise is a related point and there are Amendments down to deal with it. It is this: should a reference be possible only when the Bill has passed the Assembly? One does not know with what speed the Assembly will operate; how long it will take for a Bill to get through the Assembly. It may operate faster or slower than Parliament, but as the Bill stands it is only after it has been through all its stages in the Assembly that a reference can be made. My noble friend Lord Home of the Hirsel pointed out on Second Reading that that might be a very great source of friction. I would think it would lead to a considerable feeling of resentment if, after taking a lot of trouble, perhaps through a hot summer, the Bill gets through the Assembly to be held up by a reference. So we tabled Amendments to enable a reference to be made before the Bill has passed through the Assembly. But, as I see it, that is open to some objection because one does not want every Bill—Bills which have no possibility of being passed but about which there is a doubt as to the competence of the Assembly—to be referred to the Judicial Committee. I think the Judicial 1057 Committee would want it perhaps least of all. But surely it would be desirable in some cases that there should be that power to refer a Bill before it has been passed. As the Amendments which I have tabled stand, I have to recognise that they are defective, so that may relieve the noble and learned Lord the Lord Chancellor again because I do not propose to divide on them. They are defective in that they are drafted only to secure a reference before the Bill has passed the Assembly and where a Bill, during its passage, is so amended as to bring in a position which is ultra vires. On reflection, I think now it would be much better to give whoever has the power to refer to the Judicial Committee a discretion, either to refer a Bill once it is presented to the Assembly, before the Assembly has worked on it, or after the Bill has passed.
§ What I have in mind is this: If a Bill is introduced to the Assembly by the majority Party in that Assembly, and so is likely to pass, if there were doubts about its vires, it might be convenient to have it referred without delay. On the other hand, if it was a Bill about which it was thought that there was little possibility of it being passed, it might be much more convenient to wait until it had passed. I should like to suggest to the noble and learned Lord the Lord Chancellor that the power to make a reference should be given to the Lord Advocate, that it should be a power to refer in any case of real doubt and at the discretion of the Lord Advocate; it should be a power to refer before a Bill has passed the Assembly, after it has been presented, as well as a power to refer after it has passed the Assembly. Of course the provision about it not being submitted for the Royal Assent, if the Judicial Committee said it was ultra vires, would stand.
§ I hope I have explained the point of these Amendments sufficiently clearly. I can only ask the Government to give serious attention to them, even if they cannot give an immediate reply. I tabled them with the help of my noble friend because, to my mind, if the Amendments are made on the lines I have suggested, there will be a considerable improvement to the Bill. This would be due to the real need, as I see it, to secure machinery to prevent the Assembly passing a Bill and that Bill getting the Royal Assent when it is ultra vires, which is as good as it can possibly be made. I beg to move.1058
Lord HOME of the HIRSEL
I am rather sorry that my noble friend and I were unable to draft an Amendment which would provide a pyrotechnic display such as we had the other night. As a member of Lord Lauderdale's third form, I found it entirely enjoyable. From the discussion earlier this evening, I think we see how important it is to introduce a certainty of definition as to what is and what is not a Scottish Bill. One of the most important purposes of this Amendment from my point of view, as my noble and learned friend has said, is to obtain an accurate designation for such a Bill, and at the earliest possible stage.
In the Bill the Government provide for scrutiny, as indeed they must, but it is very late. Like my noble and learned friend, I do not think that in proposing the Secretary of State and the Chief Secretary we have got the right machinery, but we are entirely flexible as to what the machinery should be, and that is why we are not going to press these Amendments. But in the context of Scottish legislation as it is now, we have a precedent, and a successful precedent, as to how to deal with the question of whether a Bill is intra vires or is outside the scope.
I am a little rusty in my recollection of the procedures in another place, but I believe I am right in saying that when a Bill goes to the Scottish Grand Committee it is simultaneously designated by Mr. Speaker to be a purely Scottish Bill. That procedure has many advantages, because from the start the limits of the Bill are known. So far as I know—and I have consulted two ex-Secretaries of State in this House—the judgment of Mr. Speaker in this matter was never questioned, either at the beginning or during the progress of a Bill.
There is another advantage in designating a Bill as purely Scottish at an early stage. The Promoters of the Bill and the legal advisers to the Promoters and the Parliamentary draftsmen know exactly what they have to do. They know that they have to pass this hurdle at an early date, and therefore they take the greatest care that the Bill is in fact intra vires.
My noble and learned friend has said a word or two about the machinery, and my noble friend Lord Harmar-Nicholls earlier recalled (and your Lordships will remember it) the dispute over the hybrid
1059 Bill. I remember that there was a certain procedure there. I think that certain gentlemen were set up as Examiners and those Examiners reported on the Bill. Would it be possible to have Examiners drawn from the officials who serve the Assembly and the officials who serve the Westminster Parliament, and that early on they should pronounce on whether the Bill falls within the scope of Schedule 10? I prefer the suggestion made by my noble and learned friend that it should be the Lord Advocate. The great advantage of the Speaker is that he would be seen to be totally non-political. The Lord Advocate is more or less nonpolitical and is accepted as being nonpolitical in Scotland. I think this is probably the best suggestion; but there are other possibilities, and in moving this Amendment we hope that the Government will consider them and perhaps come forward with a suggestion of their own at the Report stage.
§ 6.30 p.m.
§ Lord MORRIS of BORTH-Y-GEST
May I express general agreement with the line of thinking behind the speeches of my noble and learned friend Lord Dilhorne and the noble Lord, Lord Home of the Hirsel. Last Wednesday your Lordships debated the question whether it was desirable to have post-enactment scrutiny by the courts. I have discussed the matters involved with my noble and learned friend Lord Dilhorne and he was good enough to say that I was in agreement with the views that he was expressing. I have since read his speech and the speech of the noble Lord, Lord Home of the Hirsel, and I found myself in agreement with their views.
That matter is not before your Lordships this evening, and I would not think it opportune, possibly not even seemly, to reopen discussion on that matter. But what I would submit is that if the view is taken, or may be taken, that there will be post-enactment scrutiny, and if that view is not acceptable to all your Lordships, does it not emphasise the point that it is highly desirable to devise the best machinery possible to ensure that at the earliest moment a Bill that is to come before the Assembly, or possibly a Bill that has been before the Assembly, is one that is within the powers of the Assembly,
1060 and to arrange all that before the stage comes for Royal Assent?
May I remind your Lordships that, though views were strongly expressed last Wednesday that there should be post-enactment scrutiny, this has never been regarded as a straightforward or an easy matter. Indeed Her Majesty's Government took very great care before they arrived at the views that they have expressed. Your Lordships may remember that in the relevant Command Paper of 1976 the Government left that matter open for discussion and they described it as a complex matter. I refer to the Command Paper of 1976 in which it was said:The question arises whether after Assent has been given an Assembly Act should he open to review in the courts on the ground of vire; that is, whether the courts should have jurisdiction to declare at the instance of a litigant that an Assembly Act goes outside the powers conferred by the devolution Act. The issue is more than just a legal technicality and there arc arguments both ways.".Then, very fairly, the Government in the next paragraph summarised the arguments in favour of judicial review. In the following paragraph, very fairly, they summarised the arguments against judicial review, and then said that they welcomed public discussion before there was a final decision. Then in the Command Paper of August 1976 the Government said that the previous Command Paperexplained the complex problem of whether after an Assembly measure has received Assent by Her Majesty in Council and thus become an Act the courts should be able to consider at the instance of any litigant whether it is within the devolved powers. The Government have weighed very carefully the views expressed and have decided that there should be a right of access to the courts in this respect".That, if I may say so, is very reasonable. One can understand that. One can respect the decision. One can respect it even though one regrets it. But the whole of that, I suggest to your Lordships, does indicate that there are powerful views that are opposed to the idea that after Her Majesty has given Assent to a measure there should still be opportunity to declare that it was ultra vires.
Does not that all point to the desirability of taking all possible steps to see that what a certain number of your Lordships regard as undesirable—that is, post-enactment scrutiny—should be
1061 avoided by taking the best steps that can be devised to ensure that before the stage conies for Royal Assent it should be determined that the measure is within the powers of the Assembly.
My noble and learned friend Lord Dilhorne has indicated, and the noble Lord, Lord Home of the Hirsel, has indicated, that they both have no settled view as to who should be the prime mover, but I do respectfully strongly support the view advanced by the noble and learned Viscount, Lord Dilhorne, that it should not be left, as it is the present measure, for the Secretary of State to have to come to an opinion and then for the question as to whether he is of a certain opinion to determine the issue whether the matter should go for consideration by the Judicial Committee. I much prefer some word such as "doubts".
I should have thought that if it could reasonably and fairly be argued that a measure is not Ultra vires it would be reasonable to refer that at the earliest moment to the Judicial Committee, or to whatever body is to decide. I should have thought that when any measure is being considered those who sponsor it and those who favour it would go to very great pains to ensure that they are within the powers of the Act. I should have thought those who are opposed to the measure would be alert to raise every point and bring it to the notice of those advancing the measure. That would all be so reasonable. Is not that the time at which these matters should be considered?
It may he that the Lord Advocate should be the person who is to move in the matter. But will not the fears of many of your Lordships who regret the idea of post-enactment scrutiny—that is to say, after Her Majesty has given her Assent to a measure—be met to a considerable extent if every possible means are devised to ensure that at the earliest moment, and in the most clearway, it can be ascertained and determined whether a measure is within the powers given to the Assembly?
I wanted to make two points. In the first place, I support the views that have been put forward by the noble and learned Lords and by Lord Home of the Hirsel as to the necessity of getting a Bill which is going to the
1062 Assembly passed as being infra vices of the Act at the earliest possible moment. This can avoid an enormous amount of time and trouble in the future. The second point I wish to make is that the machinery for this might well be that which is employed in this House and was employed, as Lord Home said, for the Aircraft and Shipbuilding Industries Act not so very long ago, when Examiners were appointed from this House. Whether they are a standing body or not I do not know, but I think they would be the suitable people to adjudicate upon an Assembly Bill before it was submitted to the Assembly. I know that some of them are lawyers and that would be very suitable.
§ Lord FRASER of TULLYBELTON
On this occasion I am glad to say that I find myself in complete agreement with my noble and learned friend, Lord Dilhorne, particularly on the first of the points that he mentioned a moment ago. I strongly agree that the decision whether to refer a Bill before enactment for consideration by the Judicial Committee or whatever the body may be, would be much more appropriately taken by a lawyer or a legal official, presumably the Lord Advocate, than by the Secretary of State.
I have in mind the somewhat slightly analogous case of Community directives which are considered in this country when they come out in draft. There have been cases where draft directives issued by the European Community have been considered by the Legal Sub-Committee of your Lordships' House and have been thought to be ultra vires. However, the final decision has been on political grounds—and I have no doubt at all on perfectly proper political grounds—that it is not worth fighting it because it would lead to political complications and it is better to let the ultra vires directive go through in the interests of general peace and harmony.
That may be a proper political decision, but if we are to operate a very complicated scheme such as is contained in the Bill, I should have thought that it was quite essential that the decision on whether to remit a Bill for consideration as to the vires should be taken on strictly legal grounds and in no sense on the grounds of political bargaining. If it were done on the latter sort of grounds, it seems to me
1063 that it would lead to endless complications and perhaps very undesirable results. Therefore, I would strongly support the suggestion that the proper person to take the decision is someone—probably the Lord Advocate—who is a lawyer.
The only other matter that I should like to raise on this point is that I suggest that it would really be better to fix the responsibility for referring a Bill on one person—in my view the Lord Advocate—rather than dividing it between two people who might disagree and on whom in any event it is always more difficult to pin the responsibility than on a single person who has to make up his mind. In my view the proper person is the Lord Advocate.
§ 6.44 p.m.
§ Lord DIPLOCK
Three points are raised by the proposed Amendments. On some of them I find myself in agreement with my noble and learned friend Lord Dilhorne and the noble Lord, Lord Home of the Hirsel, and on others I have doubts and on one I disagree. So far as agreement is concerned, I suggest that, as this is a purely legal question as to whether it is within the legislative competence of the Assembly, it would be better that the decision whether to refer or not be left not to a political Minister but to a lawyer. I venture to think that the obvious person would be the Lord Advocate. unless it would be the Solicitor-General for Scotland.
The question on which I have doubts is the formula suggested as a condition precedent to a reference. At present it is if the person concerned is of opinion that it is not within the legislative competence of the Assembly. It may be that some better formula than that could be used, but if it is merely a question of doubt which makes it compulsory to refer it to the Judicial Committee of the Privy Council then, having looked at Schedule 2 and Schedule 10 this afternoon, there must be many matters upon which one could be described as having doubts and very few on which one could be described as being perfectly confident.
The matter on which I do not agree with my noble and learned friend—I regret having to come to this—is the suggestion that the reference should take
1064 place, or there should be a possibility of reference, before the Bill had been passed by the Assembly and thus was ready for the Royal Assent. It does not seem to me that that would work. As regards whether it is within the legislative competence of the Assembly the question is whether, if it became a Scottish Assembly Act, it would be only within the legislative competence of the Assembly. That means that every clause must be within the legislative competence.
Until a Bill has reached the stage when all the clauses have been settled and until the possibility of amendment has disappeared, it is quite impossible to know what is being referred to the Assembly: and the answer that that is within the legislative competence will necessarily apply when it has reached the later stage, with possibly amendments as well. Therefore, in that respect I agree with the provision in the Bill that it should be only after the Bill has passed the Assembly and is ready for the Royal Assent.
Lord HOME of the HIRSEL
I should like the noble and learned Lord to enlighten me about this. After all, the procedure of vetting a Bill before it is introduced has been undertaken by the Speaker over all these years with great success and everyone from that moment knew where he was, and amendments which fell outside his ruling were almost automatically dismissed and it was accepted that they should be dismissed because he had ruled them virtually out of order from the start.
§ Lord DIPLOCK
The essential difference is that once an Act has been passed by the Parliament at Westminster, whether it be called a Scottish Act or whatever, it is law, and it is unquestionable. No one can go to the courts and say: "Please say that this is ultra vices as it is not a Scottish Bill because the Examiners were wrong when they said it was". However, with an Assembly Act, after it has been enacted anyone who is affected by it can go—I hope it will be to the House of Lords—at any rate to the courts, and say: "No, this was ultra vires" and it is their word and their decision that matters and not that of any Examiners who looked at it before.
§ Lord WILSON of LANGSIDE
In venturing to express support for this series of Amendments may I say a brief word on the situation of the Lord Advocate. Of course, if it were expressed to be the responsibility of the Secretary of State then the Secretary of State, as the noble and learned Viscount, Lord Dilhorne, said, would have the advice of the Lord Advocate. In the real world in which Lord Advocates and Secretaries of State live, it is, for practical purposes, unthinkable that in a matter of this sort a Secretary of State would proceed other than in accordance with the advice that the Lord Advocate tendered to him.
There is, of course, in an indefinite future or an uncertain future always, as they say, "a first time" and it may be that the best course to take—if it is decided that the Secretary of State is not the appropriate Minister because he is too political a figure—would be to put the responsibility where, in the real world as we have known it to date in this kind of area, it has always rested: namely, on the Lord Advocate.
§ Lord SCARMAN
I should like to address myself to what my noble and learned friend Lord Wilberforce said earlier this afternoon—the pith and substance of the Amendments. The Amendments are themselves defective and therefore there is not much point in looking in any detail at their terms. However one matter does seem to me to have been overlooked in our discussions so far and that is that Clause 19(1)(a) of the Bill makes it mandatory upon the Secretary of State, if he is of opinion that a Bill is not within the legislative competence of the Assembly, to refer the question to the Judicial Committee. With respect to those who have preceded me in the debate I should have thought that it was essential to retain in the Bill that duty if the Secretary of State reaches that opinion.
Of course, there is another problem which has been much canvassed in dealing with these Amendments, and that is what is to be the duty of the Secretary of State or the First Secretary if he is in doubt? indeed, for the reasons mentioned briefly by my noble and learned friend Lord Diplock, even after consulting the Lord Advocate and other lawyers of almost comparable brilliance and distinction, he
1066 may be in doubt, after he has puzzled his way through Schedules 2 and 10 of the Bill. Clearly something must be done—and this is where, respectfully, I agree with the pith and substance of these Amendments—to ensure that a reference may be made pre-enactment by a Secretary of State, a Lord Advocate, or whoever is the appropriate authority, if there is doubt, but that must be discretionary.
I would ask your Lordships to give serious thought before proposing the deletion from the Bill of the duty upon the Secretary of State if he reaches a clear opinion. Of course, that opinion may be wrong and that is why it is so valuable that he should not act upon it, except by referring it to the Judicial Committee of the Privy Council for a ruling. That is the only point I wish to make. If it is of any interest or assistance to your Lordships, I point out that I support the broad line taken by my noble and learned friend Lord Diplock on these Amendments.
§ 6.51 p.m.
§ The LORD CHANCELLOR
First there seems to be common ground about the necessity for proper scrutiny of the vires of an Assembly measure before an Assembly Bill is submitted to Her Majesty in Council for the Royal Assent. There also seems to be a desire that whatever steps are taken to test the question of vires should be taken in such a way as to minimise the friction between Governments, Assembly and Parliament. Both those propositions at any rate, out of the welter of difficulty, seem to be agreed.
On the first matter, what is proposed in the Bill has the merit of clarity and it leaves the responsibility for initiating the process of reference to the Privy Council to the Secretary of State. I note that the officer is described as "the Secretary of State", and I should like to give further thought to the possibility that that may not necessarily be limited to the Secretary of State for Scotland. In the ordinary language of an Act of Parliament it is certainly not limited. However, in practice, I apprehend that it is the Secretary of State for Scotland who will be primarily involved in these activities.
I think that we have perhaps been in danger of forgetting that a decision on whether or not there should be a reference is not taken in isolation. Quite a series
1067 of steps will have been taken during the progress of a Bill when the question of vires will certainly have been capable of being considered and will, I am sure, have been considered. The Scottish Executive itself, which will presumably introduce the measure, will be guided by its own Law Officer on any question of the extent of the competence of an Assembly Bill. It can reasonably be expected that the presiding officer of the Assembly and the Clerk to the Assembly would provide proper advice on the vires question. I have little doubt that standing orders will be set up to provide a formal check of the question of vires, or even certification of the question of vires in relation to the Bill itself, when it is introduced, and in relation to any Amendments that may be moved during the passage of the Bill.
Therefore, there is that machinery which will be astute enough to examine the question of vires. We must assume that we are dealing with responsible officials, responsible lawyers and a responsible body of men constituting the Assembly, who will not be operating at arms' length with their opposite numbers; but there will be consultation at the political level and at the highest level.
Of course the Secretary of State will have available to him the advice, not only of the Scottish law officers but, of course, of the Attorney-General and the Solicitor-General, and such other advice that can be obtained from Whitehall. So a whole range of advice will be available to the Secretary of State, and closest to him, of course, will be the Lord Advocate. Therefore, in my submission, given that considerable collection of opportunities for practical examination of vires as the proceedings continue, I apprehend that at the end of the day it will he rare indeed that this very problem will arise. However, we cannot exclude the possibility that it may arise, and that is the occasion for intervention by those outside the Assembly; namely, the Secretary of State or whoever Parliament decides the person should be.
As I have said, the Secretary of State will not only have the advice of his own Lord Advocate or the Solicitor-General but he will also have contact with, and the availability of advice from, the Attorney-General and the Solicitor-General in London. Therefore, it is more appropriate
1068 in all those circumstances that it should fall to the Secretary of State to make this important decision. I agree that it is eminently a legal question; indeed, it is entirely a legal question; but it has very important political implications and complications. Therefore, I respectfully submit that the view that the Secretary of State should be the linchpin is the right one.
Then comes the question as to, so to speak, the state of mind in which the Secretary of State should operate. appreciate the information of the noble and learned Viscount, Lord Dilhorne, that we need not penetrate the details of these Amendments, which he will think about again. No doubt, therefore, we shall have to return to the nuts and bolts of what is proposed at a later stage. There is a proposal that instead of the Secretary of State having to be of the opinion that a Bill is not within the legislative competence of the Assembly, it will suffice for him to put in train the operation of a reference to the Judicial Committee if he doubts whether a Bill is within the legislative competence of the Assembly.
I think that a requirement should be placed firmly upon the Secretary of State to make up his mind whether lie thinks there is something wrong and that the Bill is ultra vires; then lie should act and refer. The difficulty of leaving the matter in the stage of doubt, a mere scintilla of doubt—or whatever the nature of the doubt may be: it is not identified, or qualified—is that it could result in a very large number of unnecessary references to the Privy Council. At any rate, before he presses any further amendment of that proposal to a Division, I invite the noble and learned Viscount to consider the language of the Amendment, according to which the Secretary of State has to be of opinion, and has to come to a decision on the matter.
Next comes the question of the point at which the intervention should take place. Under the proposals of the Bill, it takes place after the Bill has been through and been passed by the Assembly. It is suggested that, in addition to the power to intervene at that stage, there should be a further power to intervene at an earlier stage. That would at any rate duplicate the possibility of friction, would it not? I see great force in the
1069 observations of the noble and learned Lord, Lord Diplock, as to what might be the consequence of that.
If the matter is to be referred at the stage of presentation, that will mean that at the stage of presentation of all Bills the Bill will have to be examined, presumably by the Secretary of State, for vires. In proceeding through the Assembly, as through Parliament, many Bills will of course fall by the wayside, especially the large number of Private Member's Bills—and I assume that there will be machinery for Private Member's Bills being introduced before the Assembly. Before ever they reach the richness of fruition of being passed by the Assembly, they will have fallen by the way. Is it really necessary that, before the stage of the decision as to whether the Bill survives the Assembly, Bills which may have no hope of survival should nevertheless, because they contain a vires element, have to be referred to the Judicial Committee? In my respectful submission, that would be an unnecessary burden to impose upon it. This constant presence of the Secretary of State over the proceedings of the Assembly from the moment the Bill is presented would create the maximum of irritation from the beginning of the procedures in the Assembly right to the very end, and, even after the intervention at the beginning, the Assembly would still have to face the possibility of "Big Brother" coming in again at the very end.
I invite noble Lords to the view that this double process of intervention would increase irritation, and that irritation would be increased if, as I understand was originally contemplated by the noble and learned Viscount, Lord Dilhorne, there were to be intervention when Amendments are introduced and moved during the progress of the Bill. That really would be a constant intervention, fussiness, overseeing, shadowing each stage of the progress of a Bill through the Assembly. That again would be a prescription for irritation and friction, and not for reasonable collaboration. Whitehall would be ever present in the legislative process.
In the light of these submissions which I make to your Lordships, I venture the view that on the whole—this matter is not easy—what is proposed in the Bill is probably most calculated to achieve the
1070 twofold purpose I mentioned at the beginning, and which is common to the House, of effective scrutiny before Royal Assent, and avoidance of friction so far as is reasonably practicable in any relation between Parliament and a subordinate legislature.
§ 7.4 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
I am sure that the Committee is grateful to the noble and learned Lord for his exposition of the subject. I do not want to prolong this discussion which has been interesting and, being obviously highly technical, is not one upon which these Benches would wish to express a collective opinion of any kind. However, the House as a whole will have to come to a decision in these matters in the long run, though not on this occasion as my noble and learned friend Lord Dilhorne has indicated his desire not to pursue the matter at this stage.
Nevertheless, it might be of assistance both to the noble and learned Viscount and to the noble and learned Lord the Lord Chancellor if I briefly described what we on these Benches tend to think about these three quite separate problems. In the first place, I personally agree with my noble and learned friend Lord Diplock and the noble and learned Lord the Lord Chancellor, that, on reflection, it may be accepted that the point of reference ought to be after passage through the Assembly. The reasons for that have been so fully rehearsed by the noble and learned Lord and by my noble and learned friend Lord Diplock that I do not think I want to repeat them. I think that they are on the whole conclusive.
However, there is a point on which I still retain a good deal of doubt about the present phraseology of the Bill, and I hope that the noble and learned Viscount, Lord Dilhorne, will return to this at a later stage. It is the question of what happens when, without being definitely of the opinion that a matter is not within the powers of the Assembly, the Secretary of State, or whoever is selected as the appropriate officer, is of the opinion that a serious or substantial question arises as to whether a matter is or is not within the competence of the Assembly.
I myself am convinced, as was the noble and learned Lord, Lord Scarman,
1071 that in such a case there ought to be a reference. I quite see that where the Secretary of State can make up his mind he ought to make up his mind to refer it if he is quite clearly of the opinion that the matter is ultra vires, but anyone who has rambled through Schedules 2 and 10 must realise that great doubts can arise under them, the more so as this particular section of the Bill relates not merely to a Bill as a whole as it comes before the Assembly but to any provision of a Bill. One of the subsections clearly refers to that.
I should have thought that, in everybody's interest, it was desirable that, where a substantial question arises as to vires, there should be pre-enactment review and that the matter should be referred, assuming that the matter is of sufficient size to make it worth while and that there is sufficient probability of its arising in practice. Obviously, as the noble and learned Lord, Lord Scarman, has said, an element of discretion, would in such a case have to be left to the Secretary of State or the Lord Advocate, as the case might be, but I do not think that, in promoting this reference to the Judicial Committee, one should overlook the possibility that the Secretary of State or Lord Advocate might come to the conclusion that it was far better to clear the matter up, without coming to the conclusion that it was positively ultra vires.
§ 7.8 p.m.
§ Viscount DILHORNE
I think that we have had a useful debate. I rather suspect that the noble and learned Lord the Lord Chancellor was expecting me to confine myself strictly to these Amendments because it seemed to me that some part of his reply was more related to the Amendment than it was to my speech. I never suggested in my speech that a Bill should be referred after every Amendment had been made to it. I suggested no duplication of that sort. What I suggested was that whoever had the duty, or power, to refer ought to have a discretion as to when he did refer. In some cases it might be convenient—it might be by agreement—to refer it at an early stage; in other cases only when it has passed through all its stages in the Assembly.
1072 I also pointed out that if amendments happened to be made during its passage, one might have to refer that amendment, but I was not, in moving this group of Amendments, pinning myself to one particular point of time for a reference but speaking in favour of giving more discretion to whoever it is to make the reference as to the particular time when he should do it because it might be convenient in some cases to wait to the end and in some cases not to do so. The answer to my noble and learned friend Lord Diplock is of course that if one referred at the beginning and no amendment was made which could possibly raise the question of vires, one would not have to consider referring again; if an amendment was made raising such a question, one would merely refer that particular provision.
That is not the most important point raised by this Amendment. I think the really important point is this. In what circumstances should a reference be made? I have no objection to the proposal put forward by my noble and learned friend Lord Scarman. If the Secretary of State reaches the opinion that a Bill is ultra vires, then of course there must be a reference to the Privy Council. That is as the Bill stands. But I do not think that goes far enough because, if there is no power of referring a Bill where there is a real doubt about the vires, then one is leaving the test of its validity entirely to the post-enactment procedure. I feel very strongly that there should be a power, I suggest a discretionary power, on the Secretary of State or whoever has the duty, where he thinks there is a real positive doubt—and I am not trying to draft while on my feet—to refer and get that doubt resolved by the Judicial Committee.
It is all very well for my noble and learned friend to say that one need only look through Schedule 10 to see there is a doubt in every line; I do not entirely agree with that observation because I think the Bill is better than that. At the same time, I should be perfectly content to leave it to whoever was the person in charge, in the exercise of his discretion, to be able to refer where he thought there was real doubt.
I come to the third and final question: who should be the person to decide? The noble and learned Lord the Lord
1073 Chancellor went through the whole list of the people who would give advice to the poor Secretary of State, a layman. I should have thought the debates in this Committee would have indicated how infrequently it is that legal advice is unanimous. There will be the poor Secretary of State having advice from the Solicitor-General for Scotland, from the Lord Advocate, from all kinds of people and even, the Lord Chancellor said, from the Attorney-General and the Solicitor-General. The only person left out, I noticed, with some care was the Lord Chancellor—the noble and learned Lord left himself out—and no doubt that was absolutely deliberate and not inadvertent; we discussed "deliberate" and "inadvertent" earlier.
Be that as it may, what is the poor Secretary of State to do? He is not the right person to decide purely legal questions. I ask the Lord Chancellor to consider again how much any Secretary of State will be exposed to attack unfairly if this responsibility is put on him. I believe it would be much better if it were left to the Lord Advocate. The Lord Advocate has to initiate proceedings when it comes to the court; let him initiate a reference. I think that would be acceptable and would reduce the possibility of friction. I cannot go with the Lord Chancellor in the suggestion that, contrary to the intention of these Amendments, they would he likely to promote friction.
I ask the Lord Chancellor to give serious consideration to this again by giving him the power—this is the one to which I attach most importance—to refer where there is real doubt and where it is really in the public interest that that doubt should be resolved. Do not put it on the Lord Advocate or anyone else to have to make a decision and then possibly be condemned or found to have made the wrong decision by the Judicial Committee. We have had a useful debate and, with the leave of the Committee, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 80 and 81 not moved.]
§ Lord STRABOLGI
My Lords, I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.