§ 2.58 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, that the House do now again resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.1158
§ [The LORD ABERDARE in the Chair.]
§ Clause 19 [Scrutiny of Assembly Bills]:
The Earl of MANSFIELD moved Amendment No. 87:
Page 8, line 25, at end insert—
("( ) if so required by resolution of either House of Parliament the Secretary of State shall refer the question referred to in subsection (1)(a) or (1)(b) of this section to the Judicial Committee of the Privy Council for a decision".)
The noble Earl said: I beg to move Amendment No. 87, which is tabled in the name of my noble friend Lord Colville of Culross and myself. We are still dealing with Clause 19 of the Bill which relates to the creating and scrutiny of Assembly Bills. The point really is this: if the Secretary of State is minded to refer an Assembly Bill to the Judicial Committee of the Privy Council, one asks a number of questions and they begin to become political rather than legal questions at this juncture.
In the first place, who is going to advise the Secretary of State? I have no doubt that he will be advised by the civil servants and probably also by one or more Law Officers of the Crown, whether they come from Scotland or England or both. But somebody will have to advise him that under subsection 19(1) the matter is one which will have to be referred.
The second matter which one must consider is this. There may well be a situation which arises where there is intense public interest—if "interest" is the right word—in the progress of a Bill emanating from the Scottish Assembly. It may be that it seeks to divert or, at any rate, to change quite dramatically the rights of a body of citizens. For instance, it could be something to do with agricultural tenure, which falls within Schedule 10 as being part of the devolved power. It could be something which had quite profound effects upon people on both sides of the Border.
In the end, as I read Clause 19, it is a political matter for the Secretary of State to decide, on advice, whether or not a matter should be referred to the Judicial Committee. The question that I want to ask the noble and learned Lord, which has really caused us to put down this Amendment, is this: What happens if 1159 the Secretary of State will not act? What happens if he will not move? Is there any way in which he can be questioned in Parliament? I suppose that he could. I suppose that somebody in the other place, or in your Lordships' House, could put down a Question to the Government, asking: Why has not the Secretary of State moved? Is the Scottish Bill to become an Act and go on the Statute Book, without anything being done?
We tabled this Amendment because we thought that what might be called a "long-stop" was perhaps required. For instance, if the Secretary of State genuinely believed, on advice, that something was not a matter for the Judicial Committee, or decided that as a political matter he would not refer it, then under the terms of our Amendment it would be open to either House of Parliament, by Resolution, to require the Secretary of State to make the reference. I fully appreciate that this Amendment was drafted before we considered Amendment No. 83, and that therefore the drafting is defective. Nevertheless, I am sure that the noble and learned Lord will see the spirit behind the Amendment, and what it is about which my noble friend and I wish to be reassured. I beg to move.
§ 3.3 p.m.
§ The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)
The Amendment, and the speech of the noble Earl in introducing it, give me an opportunity to add a little to what was said yesterday in the course of discussing an earlier Amendment. Therefore, the questions arising on this Amendment are close to those which we have already discussed. We are concerned here with the Secretary of State's duty to form an opinion about the vires of an Assembly Bill, and the question which the Amendment raises—leaving aside any technical deficiency—is: Should Parliament have any say in deciding that a Bill should be referred to the Judicial Committee? More specifically, to put it in a different way, should Parliament have what, in substance, is a right to challenge the opinion of the Secretary of State? The Committee has already traversed the nature of the duty which is created by Clause 19. What is at issue here is an opinion formed 1160 by the Secretary of State, on the basis of the best advice available to him, and, as my noble and learned friend the Lord Chancellor made clear yesterday, he would have access to advice from the Scottish Law Officers, from the Attorney-General and the Solicitor-General in England and, indeed, from departmental lawyers.
I am a little surprised that the noble Earl should say that, in the end, this is a political matter, because the question is: Does a provision in a Bill fit within the powers conferred upon the Assembly by the Scotland Act? That is a legal question. In answer to the noble Earl's question about what happens if the Secretary of State will not do something in a case, where the assumption is that he ought to do it, I would remind the Committee that there is a post-Assent judicial review. A Secretary of State who had cause, in terms of a Bill, to refer to the Judicial Committee, would surely be very unwise indeed if, knowing that there was to be a post-Assent judicial review, he did not in fact refer.
The Secretary of State, acting upon such advice, then forms an opinion and acts in accordance with it. It is an opinion upon a set legal matter. The Government do not consider that Parliament has any proper and relevant role in relation to that matter. As I think the noble Earl would be the first to acknowledge, it would be a mistake to risk introducing political considerations into what is basically a legal question. The Secretary of State will not be acting lightly or unadvisedly, and it would be a most unhappy result if either House were to debate a Resolution seeking to require a reference, against an opinion formed by the Secretary of State acting on behalf of the Government. Certainly, the House itself would not be determining any question arising. But it is difficult to see how it would appear as anything but a political challenge to the Government's view on a legal matter of vires, and it would be bound to give a political edge to what is at heart a non-political question.
As the noble Earl himself foreshadowed, there are some ways in which Parliament can interest itself in the matter. There is no shortage of ways and he mentioned some, such as that Questions can be asked in Parliament and various other courses. But we think that it would be a mistake 1161 to give Parliament a formal role in relation to this matter. I do not know whether this is covered by what the noble Earl suggested might be a technical deficiency in the Amendment, but your Lordships will notice in it the word "either". So what is envisaged is that either House of Parliament may decide to refer the matter to the Judicial Committee. That could mean that the House of Lords alone required a reference to the Judicial Committee, even if the Assembly and the Government of the day, acting through the Secretary of State on advice, judged that it was not required. Whatever its merits that could certainly he politically explosive, as I think the noble Earl will have to acknowledge. Therefore, that again could introduce a political dimension.
I have mentioned those considerations. Perhaps one of the most important is the existence of post-Assent review, and surely that is a sufficient safeguard against any temptation not to refer a question that ought to be referred. For those reasons, I invite the noble Earl to reconsider his position on the principle of this Amendment.
§ 3.8 p.m.
§ The Earl of MANSFIELD
I must say that I am far from satisfied with that answer. After the number of times that the Attorney-General in this Parliament has found himself near a law court on matters which were purely political, I find it extraordinary that the noble and learned Lord should try to pretend that this is purely a legal matter, and that in no circumstances would a Secretary of State act otherwise than on whatever advice was available to him; and, furthermore, act in a manner which was entirely dictated by legal considerations and not by political considerations. As I say, it is scarcely conceivable that a political animal could be motivated by that alone.
Furthermore, the political animal is not a Law Officer, and what he must do is take such advice as he is given and then consider—no doubt with his Cabinet colleagues—whether a reference is to be made, in an atmosphere which I have tried to show could well be highly charged politically, and could cause immense repercussions on either or both sides of the Border, according to whether he 1162 referred or did not refer the matter to the Judicial Committee.
One can see the explosive nature of these repercussions, simply by reading the reports in the Scottish papers today about the first Amendment which I moved yesterday in your Lordships' Committee. On the very idea that an Act of Parliament should remain in force until it is, as it were, repealed or changed either by an Act of Parliament or by an Act of the Assembly, it is fair to say that many of the newspapers took the same point as the noble and learned Viscount, Lord Dilhorne. I shall not again go over all that ground, because it was a wrong point; but the fact remains that before very long there will, I am perfectly sure, be intense political feeling if this Bill becomes an Act and if the Assembly comes into being.
Then the noble and learned Lord went on to complain that it would not be right if this House alone could in effect require the Secretary of State to act. I do not know why the noble and learned Lord should say that, unless he is acting in a thoroughly political and not very judicial way. What better forum could there be for discussion on a Motion as to whether the Scottish Assembly was behaving in a way which was intra or ultra vires?
§ Lord McCLUSKEY
May I intervene at this point to make it clear to the noble Earl that I have obviously been misunderstood by him? I was not going into the merits of that question. I was saying that if, in fact, the Assembly took the view that the provision was intra vires and the Secretary of State formed no contrary opinion, then, in effect, the House of Lords would be brought in. If it formed a different opinion, there would, whatever the merits of the role of the House of Lords, be possibilities of conflict, about which I express no view.
§ The Earl of MANSFIELD
The noble and learned Lord really must not deny me a little opportunity to pull his leg! However, I maintain what I said. I do not think that there is any better forum than your Lordships' House for making such a Resolution. I verily believe that it would be better dealt with in the calmer atmosphere of this House—and certainly 1163 more logically than in the other place. The question arises as to whether this long-stop provision is, as I have sought to show, possible and, indeed, desirable politically. The matter is one which should perhaps be reconsidered, and for today I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88, 89, 243 and 244 not moved.]
§ 3.13 p.m.
§ The Earl of MANSFIELD moved Amendment No. 90:
Page 8, line 30, at end insert ("but the decision shall not hind any court which considers that question in the course of any subsequent proceedings").
§ The noble Earl said: I beg to move Amendment No. 90. One comes now to the question of the effect of a decision of the Judicial Committee in relation to any Bill which is referred to it under Clause 19. The matter was touched upon yesterday by several speakers in your Lordships' Committee during the course of the debates, particularly in relation to the Northern Ireland Act. I have done a little research and there is but one case which seems to fit the circumstances. The argument there was whether an educational levy under Section 3 of the Finance Act (Northern Ireland) 1934 was intro Tires. To quote my noble and learned friend, the chairman on that occasion was the noble and learned Viscount, Lord Hailsham, and I am sure that they were not scraping the bottom of the barrel.
§ The Earl of MANSFIELD
Otherwise the personnel sitting were, if I may say so, different from those with which my noble and learned friend regaled the Committee last night. However, the point of the case—which is reported at page 352 of the 1936 Appeal Cases and which decided that the Northern Ireland Parliament was perfectly entitled to act in the way that it did—was that in fact the Judicial Committee was acting on a question which was put to it—if I say in a vacuum I hope that I shall not be 1164 misunderstood. No facts were presented to the Judicial Committee. It was given the problem and it pronounced in the way that it did.
The matter which then comes to be considered is: how shall an individual who may face court proceedings of one kind or another comport himself in a situation after, let us say, a Bill has been submitted to the Judicial Committee by the Secretary of State and it has pronounced? And, of course, it would have pronounced either in favour of the Bill or in favour of the Assembly.
There are two utterly opposing viewpoints in Amendments Nos. 90 and 91. The situation which my noble friend and I visualise is perhaps a matter of criminal law where somebody finds himself on what I might call the wrong side of the dock by reason of a Scottish Bill which has finally received the blessing of the Judicial Committee. Is he then to be estopped from putting forward as a defence that the Scottish Assembly was acting ultra tires? We considered the matter and put forward for the consideration of the Committee the Amendment to which I have spoken: that in fact any court considering these matters would not be so bound by a question which had been answered by the Judicial Committee. It may be that the noble and learned Lord will say that the situation is perfectly adequately enshrined in the Bill or can be gleaned from it. Equally, he may say that for other reasons there is no need for an Amendment of this nature. However, the Amendment has been put down to test the situation. I beg to move.
§ Viscount DILHORNE
It might be for the convenience of the Committee if we discussed Amendment No. 91 with this Amendment. That is why I have risen to my feet, although I am perfectly prepared to sit down again in order to allow the noble Lord, Lord Shinwell, to rise to his feet again so that I may hear what he has to say before I> speak in relation to Amendment No. 91.
§ Lord SHINWELL
I am very grateful to the noble and learned Viscount, Lord Dilhorne, for withdrawing in order to allow me to offer a few observations. I 1165 am beginning to wonder now whether I should have accepted his offer, because it may well be that I shall get a proper trouncing from him after I have developed my argument. I spent a good deal of time yesterday in your Lordships' Committee listening to a wrangle—that is what it amounted to in the long run—between the judicial fraternity for whom I have very much respect. But sometimes I cannot follow them very well, naturally enough, since I have no knowledge of legal matters.
I have risen to my feet for this reason. I wonder whether the noble Earl, Lord Mansfield, can tell us what he is really driving at. Is the noble Earl seeking to impose restrictions upon the proposed Assembly when it is created so as to make it difficult for them to proceed with legislation? And even when they do debate legislation and pass it, according to their procedure, such as it might be—I have no idea what it is likely to be but there will be some kind of procedure—there is then to be a reference to the Judicial Committee of the Privy Council when some difficulty of a legal character emerges. Then difficulties will arise when it is said that a decision made in open court shall not be binding on any other court if there are subsequent proceedings.
What are the subsequent proceedings which the noble Earl, Lord Mansfield, has in mind? I should have thought that, having gone through the various ingredients of a Parliamentary system which in Scotland will follow pretty well the methods employed at Westminster, and then after reference of an intricate and erudite and difficult problem of a legal character to the Judicial Committee of the Privy Council, and a decision being reached, even then the Assembly will not know where it is. Is that what the noble Earl is driving at? In other words, is he seeking to make difficulties for the Assembly?
§ The Earl of MANSFIELD
My Amendment has nothing to do with the Assembly or its deliberations. By the time my Amendment comes in, so to speak, one hopes that the Assembly will have gone on to other business. This is to try to make some certainty of how the individual citizen comports himself long after the Assembly has finished with its Bill.
§ 3.22 p.m.
§ Viscount DILHORNE
The last thing I would want to do would be to treat my seniors with any degree of disrespect, and I am alarmed that the noble Lord, Lord Shinwell, should think that I might endeavour to trounce him. I am quite sure that if I did I should fail, but I have no intention of attempting to do so. Yesterday we discussed some very important questions; namely, who should have power to make a reference to the Judicial Committee and when and in what circumstances. After a very entertaining debate, which I was surprised to hear the noble Lord, Lord Shinwell, refer to as "a legal wrangle", after the speeches of my noble and learned friends Lord Wilberforce and Lord Morris of Borth-y-Gest and Lord Diplock, the Committee decided to reject the proposal put forward by the noble and learned Lord, Lord Wilberforce, to attach a new label to an old and slightly adulterated bottle of wine.
§ Lord WILBERFORCE
The noble and learned Viscount is slightly exaggerating the position. No decision was reached.
§ Viscount DILHORNE
I often do. The noble and learned Lord must not be so sensitive about that; I was replying to the noble Lord, Lord Shinwell. I happened to notice during that debate that the noble Lord was very alert and seemed to be thoroughly entertained and now to describe it as "a legal wrangle" is a little unkind.
Today there has been raised by the noble Earl, Lord Mansfield, an even more important question to my mind; namely, what is to be the effect of a decision of the Judicial Committee on a reference? As I understand the Bill, if the Judicial Committee, on a reference by—as I think it should be—the Lord Advocate, decides that a Bill or any provision in it is ultra vires the Assembly, that is final. That Bill containing that provision cannot be submitted to the Royal Assent. It cannot become law. But the Bill we are considering does not state in terms what are to be the consequences if the Judicial Committee says that the Lord Advocate was wrong; this Bill is infra vires the Assembly. That is a decision by the individuals to whom the noble and learned Lord, Lord Hailsham, referred yesterday; and I may tell him as a matter of interest that, no doubt in consequence 1167 of his observations, a Daimler car was in fact providcd this morning, but by those individuals and they will decide that it is infra vires. If they decide that it is ultra vires, that is final; if infra vires then the noble Earl puts forward an Amendment that despite that decision the question of the validity of that particular measure can be challenged in any court at any time in the future. I think that really is wrong.
After the speeches we heard yesterday, it should not be necessary to remind your Lordships that if it went before the courts, as it could after what the noble Earl has proposed, and it finally came up to this House of Lords sitting in its judicial capacity and before (it might be) the same individuals who decided the question of validity in the Judicial Committee, the decision of this House would be final and binding. It seems to me rather curious that in these circumstances, when there has been a reference, we should not get fidelity to the decision of the Judicial Committee, whichever way it goes. If there is a reference by the Lord Advocate and it comes before the Judicial Committee I would think it almost certain that every provision of that Bill would be the subject of examination. If it was said to be ultra vires, that is that. If infra vires, as the Bill stands I do not think it is final. I think it should be.
I have already spoken several times in the course of the Committee's debates about the uncertainty which will attach due to the post-enactment challenges to Assembly Acts, and of course if you want the greatest possible measure of uncertainty then indeed you will make it possible to challenge in the courts, it may be years after the decision of the Judicial Committee, that decision of the Judicial Committee that a particular Bill was in the power of the Assembly. I think that is wrong; it is carrying uncertainty too far. The noble Earl said he was concerned with the criminal procedure. Of course there is no appeal from the High Court of Justiciary to the House of Lords on any criminal matter and that is not altered by this Bill. That is kept as it is, but I put forward the suggestion to the Committee that it really would be a great nonsense to make only a decision of the Judicial Committee that a Bill is ultra vires, final and binding.
§ Lord HAILSHAM of SAINT MARYLEBONE
If I may I should like to probe, and I hope that the noble and learned Lord the Lord Chancellor will be able to answer some of my questions. I am not sure that I agree with either extreme, that is to say, either extreme contained in Amendment No. 90 or in Amendment No. 91. I think the problem is perhaps a little more complex than either extreme would allow. The first question to ask is, what is the effect of the Bill if neither Amendment were passed? As I understand it, if the Bill were not altered the effect of the Privy Council decision on a reference would be advisory only.
Why do I say that? I say it because the decisions of the Judicial Committee when they are taken on appeal from, let us say, a State in Australia or one of the Caribbean countries are no doubt binding on the inferior courts of that country as being part of the law of Australia or being part of the law, say, of Trinidad. But if you read in the appeal cases as reported year by year in the Law Reports, a decision of the Privy Council in either such case, and you want to cite it in the courts of England or Scotland, I believe —and in the case of England I may say that I know—that decision, if it is on a comparable point, is treated with the greatest respect and would probably be followed by either the Court of Session or by the High Court in England, but they are under no obligation to do so.
I may be wrong because nobody who has heard these various legal discussions can doubt—I hope no layman will doubt and no lawyer will doubt—that this is a very complex Bill indeed and one's first impressions may very well be wrong. I believe, however, that if the Bill stands as it is, although of the very greatest weight, the technical position would be that the opinion of the Judicial Committee on the referendum would be binding only to the extent that the Assembly Bill would then be presented to Her Majesty in Council for Her Royal Assent and would still be subject to post-enactment review in which the decision of the Judicial Committee would be of the very highest persuasive authority but not a binding authority. I may have got that wrong and, if I have, I hope that the noble and learned Lord when he comes to reply will tell me so.
§ Lord SHINWELL
When the noble Lord says that the proceedings might go on and on it reminds me of one of Dickens' books—Jarndyce v. Jarndyce where the case went on and on for ever amen. That is what happens. First it goes from the Assembly. The Secretary of State is consulted. He takes a certain decision and something is referred to the Judicial Committee of the Privy Council. But even when they have come to a decision, some other undefined court—it may be an EEC court, an EEC decision or the international Court of Justice or some Human Rights Commission—comes to a decision. How long is this going on? Meanwhile the people in this country are waiting for a decision.
§ Lord HAILSHAM of SAINT MARYLEBONE
I think the noble Lord has not quite appreciated that I was seeking to describe what the effect of the Bill would be if neither of the two Amendments under discussion was passed. I do not want to proceed along the lines of Jarndvce v. Jarndyce but I think I am right, and if I am wrong I hope the noble and learned Lord the Lord Chancellor will tell me and also tell us why I am wrong. If nothing is done, that is to say if the Bill stands without either Amendment, I think that technically the advice of the Privy Council is binding only on the Secretary of State, who has then to submit it to Her Majesty in Council for assent and thereafter it could be challenged in judicial proceedings although it would be a very bold judge of first instance who would not follow it. I think that is the situation without the Amendments. I do not think that my noble friend's Amendment probably alters that, although I may be wrong. He said it is advisory only, and I suppose that rather describes the status quo as I am suggesting it.
The noble Viscount's Amendment No. 91 does alter it. It says that the decision, when made, should be final. I should like to analyse that and again ask the noble and learned Lord to comment upon my analysis to see if I have got it right and, if I have, to see what is the Government's thinking about it. One must visualise two quite separate situations, and it may be that one ought to give a different answer according to which of the two is visualised. First, the section as it stands, Section 19, provides that either the whole 1170 Bill can be referred to the Judicial Committee, or alternatively a provision in the Bill can be referred to the Judicial Committee. They are quite different situations.
Supposing a particular provision in the Bill is referred to the Judicial Committee my first inclination, as my noble and learned friend on the Cross Benches proposes, is to think that the decision being directly in point ought to be final and conclusive. I do not think it is sensible for the kind of reason that the noble Lord, Lord Shinwell, was becoming interested in: that having gone through the ghastly process of reference and argument and final decision and submission to Her Majesty in Council a particular provision should then be challenged in the courts even though—and I do not retract what I was saying in the middle of last week—the liberty of the subject might be involved in the subsequent challenge in so far as the decision is in point.
Let us now consider the alternative situation. I am sorry to make this rather complicated but I think it is worth while delving a little. The alternative situation is that the whole Bill is referred to the Judicial Committee. Let us assume that two learned counsel are employed—and I suppose there will be an advocate employed to support the legality of the Bill and that advocatus diaboli briefed, and I hope well paid, to attack the vires of the Bill. Supposing that during the course of that reference, because of the fallibility of human nature, points (a), (b) and (c), are argued and decided by the Judicial Committee one way or the other, I quite see that that ought to be a binding decision. I think that the noble and learned Viscount on the Cross Benches has a good point there, because, again for the same reason as I gave in case number one, I think it would be intolerable to argue it all over again.
The purpose of pre-enactment review is —if I may use a vulgarism—to take the bugs out of the Bill if there are any. But supposing, owing to the fallibility of human nature and despite the fact that points (a), (h), (c) and (d) are argued and decided by the Judicial Committee, six months later a village Hampden, who is charged with an offence created by the Bill after it has received Royal Assent, proceeds to raise points (f), (g) and (h), 1171 none of which has been decided by the Judicial Committee. I do not believe that the mere fact that the Judicial Committee has given a white sheet to the Bill, enabling and indeed compelling it to be submitted to Her Majesty in Council, should deprive the subject, whose liberty may be in jeopardy, from raising a new point as to vires which could go up in the ordinary way.
My view, such as it is, is that this at some stage ought to be spelt out in the Bill. I believe this is the right answer. I should like the noble and learned Lord, if he is ready to reply either before or after the Statement on Northern Ireland, to consider the point, and if he is not ready to reply I should like him to reflect upon it before the next stage of the Bill.
§ Moved, accordingly, and, on Question, Motion agreed to.
§ House resumed.