HL Deb 09 November 1998 vol 594 cc580-609

(" .—(1) No provision that would or might alter—

  1. (a) the time zone applicable in Scotland, or
  2. (b) the application of the Summer Time Act 1972 to Scotland,
shall have effect unless a draft of the provision has been laid before, and approved by resolution of, the Parliament.

(2) In this section "provision" includes—

  1. (a) primary legislation, and
  2. (b) subordinate legislation (including subordinate legislation to bring into force primary legislation).").

The noble Lady said: My Lords, in moving Amendment No. 39 I should also like to speak to Amendment No. 77 which is consequential. Many of your Lordships will remember that at Report stage last Tuesday I moved an amendment to Schedule 5 to give the Scottish parliament control over time zones and the subject matter of the Summer Time legislation. Some of your Lordships will also remember that while the amendment attracted a lot of sympathy, it did not attract any support, so I withdrew it. However, I said that I would act on a suggestion made by the noble Lord, Lord Mackay of Ardbrecicnish, that the issue should be left to the United Kingdom Parliament, perhaps with an armlock from the Scottish parliament. I acted on his suggestion and this amendment is designed to give the Scottish parliament that armour.

I do not propose to rehearse again the arguments against Summer Time in winter for Scotland. I am sure that most of your Lordships already know them by heart having heard them again less than a week ago, although I shall be happy to rehearse them again if any noble Lord wishes me so to do.

I hope that the amendments will find greater favour with the Government than did my previous amendment. I beg to move.

Baroness Carnegy of Lour

My Lords, the noble Lady is making valiant efforts on behalf of her fellow Scots to ensure that a change in the arrangements for Summer Time is not brought about in a way that Scots do not wish. I do not know whether the noble Lady will agree with me, but the amendment does not prevent the Westminster Parliament keeping Summer Time in England and Wales throughout the year but excluding Scotland. If the Westminster Parliament agreed to that, it would happen and Scotland would still have to follow suit if it did not want a different time zone. I am not sure how the amendment cures the problem. I hope that I am wrong. The noble Lady is trying extremely hard. I agree that the people in Scotland do not yet want that change. I find an increasing number in the farming community coming round to it, but it has not happened yet. I am sure the noble Lady is right to try to protect us.

Lord Forbes

My Lords, I find difficulty with Amendment No. 77 which refers to Scotland having a veto. A veto means conflict; and conflict is the one thing we want to avoid between Westminster and Edinburgh.

Lord Howie of Troon

My Lords, I have been voting happily all day in support of my noble friends on the Front Bench and my Government. However, on this occasion I sincerely hope that the Government will accept the amendment proposed by the noble Lady, Lady Saltoun of Abernethy. One of my reasons for supporting her is that, being a veto, it prevents conflict rather than suggesting it. I realise that that is a Jesuitical argument, but none the less I quite like it.

The amendment takes up the suggestion made by the noble Lord, Lord Mackay of Ardbrecknish, of putting an armlock on the English-dominated Parliament. I do not wish to go into the arguments in favour or against Central European Time. We have discussed them over and over again in this House in the past five years. I have spoken on the subject at least six or seven times. I no longer listen to my speeches; I do not think that anyone else does! The arguments have been trailed over and again. What appears to be advantageous in the south-eastern part of England, especially to those who are strongly devoted to Europe, as many of us are, would be disadvantageous to Scotland. More especially, it would be disadvantageous to the construction industry in Scotland.

The only argument in favour of Central European Time which had any merit was that it might reduce slightly the number of road casualties in the evening. Against that one has to balance a salient statistic; namely, that during the previous three-year experiment in the late 1960s and early 1970s while the number of casualties on the roads were reduced slightly, due to the change in time and vagaries of the weather, and so on, injuries in the construction industry increased by a third. Against the safety on the roads, which is valuable, of course, one balances the increased dangers to the construction industry. I think that the armlock should be applied. I sincerely hope that my noble friend on the Front Bench will support the amendment.

Lord Monson

My Lords, time and again over the years I have found myself in agreement over time zones with the noble Lord, Lord Howie of Troon. Quite often it has been the two of us against the rest. On the last occasion the noble Lord, Lord Lang—he was in his place earlier—made it three. I agree again wholeheartedly with the noble Lord, and accordingly with my noble friend Lady Saltoun. I think that the amendment represents a sensible compromise.

Lord Mackie of Benshie

My Lords, I cannot agree with the noble Lady's proposals. I do not agree with the noble Lord, Lord Howie of Troon, who occasionally talks good sense but sometimes strays a little.

It is an ingenious amendment. I detect that the master hand of the great intriguer is at work in advising on these matters. I believe that this is a bad amendment because it is a veto on 60 million people by the people of Scotland. That cannot be right. If the English nation and parts of the Scottish nation wished to change to Summer Time, surely we in Scotland in all justice could not veto that.

It is more logical for Scotland to have control of its own Summer or Winter Time and the change in hours because then it would inconvenience only the Scots if they insisted on keeping the old time. The arguments for a level time—whether it be Summer Time all the year round or the status quo—throughout Britain are absolutely irrefutable. There must be the same time-zone throughout Britain.

The amendment gives rise to total injustice to people in the deep south and it does no particular good for the people of Scotland.

Reverting to the question of Summer and Winter Time, there is no doubt that the argument about children walking to school in the dark and the danger that involves no longer applies. Hardly a child in Scotland walks to school these days; they are all driven there by parents or take the school bus.

8 p.m.

Lord Howie of Troon

My Lords, I thank the noble Lord for giving way. I am grateful for his earlier kind words; he and I are old friends. He says that children are driven to school. However, he will have noticed the Government's proposals for an integrated transport system, with my right honourable friend Mr. Prescott trying to encourage people to walk and cycle rather than to be driven to school. He thinks that that is a great mistake.

Lord Mackie of Benshie

My Lords, I do not believe that the Government, foolish though they may be, intend that to apply to five, six and seven year-olds. The figures show that there are far more accidents at night than in the dark in the morning. In the morning people are far more cautious than at night when they are tired. I cannot support the amendment. It produces an injustice to England which is greater than any injustice to Scotland.

Lord Chesham

My Lords, as a total Sassenach, I hesitate to intervene. I support the noble Lady's amendment because I believe that the Scottish parliament, if we have to have one—and it appears that we have to have one—should make the decision. However, having lived in Australia, with its north/south time-zones, I wish to issue a word of warning. Enormous problems were created. East/west time-zones are understandable but north/south are not. A child leaving home at 8.30 in the morning arrives at school over the border at eight o'clock. She leaves at four o'clock and arrives home at half-past five. As regards homework and so forth, that makes no sense. The same difficulties apply applies to business men.

I support the amendment and the proposal that the decision should not be made by Westminster. However, I issue a word of warning that it makes no sense at all.

The Earl of Kintore

My Lords, at col. 246 of the Official Report of 3rd November the noble Lord, Lord Mackay of Ardbrecknish, suggested to my noble friend that she might bring back a suitable amendment at Third Reading. On that evening, the noble Lord, Lord Sewel, by his arm movements—unless he was merely cuffing his noble and learned friend the Lord Advocate—appeared to me positively to welcome the proposal. A suitable amendment has been proposed and it would be churlish for the Government to reject it.

Lord Mackay of Ardbrecknish

My Lords, we have learnt one thing; that the Liberal Democrats agree with British Summer Time all year round. That will probably be news to people in the north of Scotland and in Orkney and Shetland, but never mind.

Lord Mackie of Benshie

My Lords, that is not accurate. I said that arguments are being adduced which make the previous arguments appear a little unreasonable.

Lord Mackay of Ardbrecknish

My Lords, it still sounds like coming down off the fence. But I shall let it pass. The noble Lady, Lady Saltoun, has come forward with a proposal which leaves the power to this Parliament but puts an arm-lock on the issue if it is held by the Scottish parliament. I suggested that she might do so. My noble friend Lady Carnegy pointed out that the Scottish parliament can act only for Scotland. That is true; we could not suggest that a draft provision be laid before the Scottish parliament which affected England. However, I do not believe that the United Kingdom Parliament would ever countenance different time-zones within the United Kingdom.

Your Lordships know my simple view that if the Americans manage to operate with different time-zones it is not because they are more clever than the British or the Europeans. I do not understand the great obsession with having the same time-zone over the whole of Europe, but it is important for the whole of the United Kingdom. I do not believe that the UK Parliament would proceed for part of the United Kingdom if the Scottish parliament said that the change could not be made in Scotland. I believe that the UK Parliament must take that into account. To that extent, the noble Lady has achieved her objective in the amendment and I would support it. I can think of nothing more divisive occurring in the next few years than the Westminster Parliament, driven largely by English interests which seem unable to live with a time-zone different from the Continent, deciding to have Summer Time all year round, with the Scots being as opposed as ever.

It is well worth remembering that after three or four years the experiment collapsed because of pressure not only from Scotland but from the north of England and the west. As was explained clearly on a previous occasion by the noble Lord, Lord Howie of Troon, it is not just a case of northward but also of westward. The United Kingdom does not lie north/south; as one goes further north it inclines heavily to the west. Therefore, that factor must be taken in account, too. I am happy to support the noble Lady's amendment.

Lord Hardie

My Lords, we are all agreed that it is inappropriate to have different time-zones within the United Kingdom. It is in everyone's interest that there should be a common time-zone. I understand what the noble Lady is trying to achieve with the amendment; she does not wish Central European Time to be introduced in Scotland and on Report she stated that she was unsure that the United Kingdom Parliament would consider Scotland's interests after the Scottish parliament had been established.

With great respect, I cannot agree with that assertion. After devolution, Scotland will remain fully represented both here and in another place. In addition, it will be open to the Scottish parliament to make its feelings known if the issue is ever discussed in Westminster.

There is a further difficulty. As was pointed out by the noble Lords, Lord Forbes, Lord Mackie of Benshie and Lord Howie of Troon, the amendment introduces a veto. I would go further and say that it is anomalous. It appears to allow the reservation of the issue of time-zones and the Summer Time Act 1972 but then effectively devolves to the Scottish parliament the final say on time-zones applicable to Scotland. That approach is quite unacceptable to the Government and I hope to the rest of the House. Nothing else in the Bill is treated in this way. No other reserved issue is then pulled back as a devolved issue. I cannot think of any valid reason why this issue should be treated differently from the other issues covered by the Bill. Indeed, I believe that this amendment offers a dangerous approach which might run the risk of undermining the devolution settlement. I am sure that would be furthest from the mind of the noble Lord, Lord Mackay of Ardbrecknish. I ask the noble Lady to withdraw her amendment.

Lord Howie of Troon

My Lords, before my noble friend sits down, I should like to say that he seems to be putting undue weight on the capacity of the United Kingdom Parliament, dominated, let it be said, by Englishmen—

Lord McIntosh of Haringey

My Lords, my noble friend must realise that we are at Third Reading. He did not rise to ask a question, but to make a different point. Surely that cannot be acceptable.

Lord Howie of Troon

My Lords, well—

Lord McIntosh of Haringey

My Lords, I am sorry, I must ask my noble friend to resume his seat.

Lord Howie of Troon

My Lords, I was just about to do so. If I may say so, my noble friend leapt up the second time a little too rapidly.

Lady Saltoun of Abernethy

My Lords, we have had an interesting and rather amusing debate on this amendment. I am grateful to all noble Lords who have supported me. I am very sorry that the Government are determined not to accept it because our parliament should have some control, over a matter which affects the lives of us Scots so much. Therefore, I ask for the opinion of the House.

8.11 p.m.

On Question, Whether the said amendment (No. 39) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 103.

Division No.4
Anelay of St Johns, B. Lyell, L.
Attlee, E. Mackay of Ardbrecknish, L.
Borthwick, L. Mackay of Drumadoon, L.
Byford, B. Masham of Ilton, B.
Carnegy of Lour, B. Mayhew of Twysden, L.
Chesham, L. Monson, L.
Courtown, E. Mountevans, L.
Cranborne, V. Mowbray and Stourton, L.
Dundonald, E. Northesk, E.
Ellenborough, L. Rawlings, B.
Fookes, B. Renton, L.
Fraser of Carmyllie, L. St. John of Fawsley, L.
Geddes, L. Saltoun of Abernethy, Ly. [Teller.]
Harlech, L.
HolmPatrick, L. Sanderson of Bowden, L.
Selkirk of Douglas, L.
Howie of Troon, L. Sharples, B.
Inglewood, L. Skelmersdale, L.
Kingsland, L. Stair, E.
Kintore, E. [Teller.] Strange, B.
Lang of Monkton, L. Strathclyde, L.
Leigh, L. Wedgwood, L.
Acton, L. Evans of Watford, L.
Addington, L. Falconer of Thoroton, L.
Ahmed, L. Farrington of Ribbleton, B.
Alli, L. Gallacher, L.
Amos, B. Gilbert, L.
Archer of Sandwell, L. Goudie, B.
Bach, L. Gould of Potternewton, B.
Barnett, L. Graham of Edmonton, L.
Bassam of Brighton, L. Grenfell, L.
Berkeley, L. Hacking, L.
Blackstone, B. Hardie, L.
Blease, L. Hardy of Wath, L.
Bragg, L. Harris of Haringey, L.
Burlison, L. Hilton of Eggardon, B.
Carmichael of Kelvingrove, L. Hogg of Cumbernauld, L.
Carter, L. [Teller.] Hollick, L.
Christopher, L. Hoyle, L.
Clarke of Hampstead, L. Hughes of Woodside, L.
Clinton-Davis, L. Hunt of Kings Heath, L.
Cocks of Hartcliffe, L. Irvine of Lairg, L. [Lord Chancellor.]
Crawley, B.
David, B. Islwyn, L.
Davies of Coity, L. Janner of Braunstone, L.
Davies of Oldham, L. Jay of Paddington, B. [Lord Privy Seal.]
Dean of Beswick, L.
Dean of Thornton-le-Fylde, B. Judd, L.
Desai, L. Kilbracken, L.
Dixon, L. Lester of Herne Hill, L.
Dormand of Easington, L. Linklater of Butterstone, B.
Dubs, L. Lockwood, B.
Evans of Parkside, L. Lofthouse of Pontefract, L.
Macdonald of Tradeston, L. Sainsbury of Turville, L.
McIntosh of Haringey, L. [Teller.] Sawyer, L.
Scotland of Asthal, B.
Mackenzie of Framwellgate, L. Sefton of Garston, L.
Mackie of Benshie, L. Sewel, L.
McNair, L. Shepherd, L.
Mallalieu, B. Simon, V.
Mar and Kellie, E. Smith of Gilmorehill, B.
Milner of Leeds, L. Stoddart of Swindon, L.
Monkswell, L. Symons of Vernham Dean, B.
Montague of Oxford, L. Taylor of Blackburn, L.
Morris of Manchester, L. Thomas of Gresford, L.
Murray of Epping Forest, L. Thomas of Macclesfield, L.
Northfield, L. Tomlinson, L.
Pitkeathley, B. Tordoff, L.
Prys-Davies, L. Uddin, B.
Ramsay of Cartvale, B. Walker of Doncaster, L.
Randall of St. Budeaux, L. Warner, L.
Rea, L. Watson of Invergowrie, L.
Rendell of Babergh, B. Whitty, L.
Rodgers of Quarry Bank, L. Williams of Mostyn, L.
Russell, E. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

8.20 p.m.

Clause 91 [Maladministration]:

Baroness Ramsay of Cartvale moved Amendment No. 40:

Page 43, line 24, leave out ("118") and insert ("117").

The noble Baroness said: My Lords, Clause 117 is one of a set of clauses—Clauses 117 to 124—which is concerned with how existing enactments are to be read. The Scottish parliament is to make its own provision about maladministration. For that reason functions under the Parliamentary Commissioner Act 1967 are not to be transferred to Scottish Ministers. In that context, Clause 91 already provides that Clause 53, the clause that deals with the transfer of functions, does not apply in relation to functions confirmed by or under the 1967 Act.

Clause 91 also provides, or it was the intention that it should provide, that all relevant clauses which say how Acts are to be read, where functions transfer down, similarly do not apply. However the reference to Clause No. 117, the first in the set of relevant clauses, was inadvertently omitted at an earlier stage in the drafting of the Bill. The amendment simply remedies that omission and leaves the way clear for the parliament to develop its own arrangements for dealing with maladministration. I beg to move.

On Question, amendment agreed to.

Clause 95 [Appointment and removal of judges]:

Lord Hardie moved Amendment No. 41:

Page 45, line 29, leave out from ("ground") to end of line 32.

The noble and learned Lord said: My Lords, Amendment No. 41 deletes the requirement for a two-thirds, rather than a simple, majority in the parliament in order to approve a Motion by the First Minister for the removal of a judge. There is no point in requiring the parliament to approve the Motion by a two-thirds majority if the tribunal has already found that the judge is unfit. Indeed, the requirement for such a majority could prevent the removal of a judge who was unfit.

An identical amendment—Amendment No. 175—was part of the package of amendments tabled by the noble and learned Lord, Lord McCluskey, on Report. However that amendment was, in the event, not moved.

It may be helpful if I expand and explain what the Government propose to do in response to the decision on this clause on Report. Having considered the strength of feeling expressed in the House on all sides, the Government intend to bring forward amendments to the Bill in another place which will place a duty on the parliament to make provision for an independent tribunal. The First Minister will be required to receive a report recommending removal from this tribunal before he may satisfy himself that a judge is unfit for office.

We would still wish to leave it largely to the parliament to decide the question of composition of the tribunal and its procedures. However, we believe that the tribunal should be chaired by a suitably qualified person, and we intend to specify that the chairman should be a person who is eligible in terms of Clause 103 to be a member of the Judicial Committee of the Privy Council in proceedings under the Bill.

Provided those proposals are accepted in another place, this House will, of course, have an opportunity to discuss and debate the matters at a later stage. I felt that it was important to explain the thinking to enlighten your Lordships. I beg to move.

Lord Lester of Herne Hill

My Lords, from these Benches we support the amendment which is the logical consequence of the Government's acceptance of the need for an independent and impartial tribunal to deal with the removal of Scottish judges.

As it may become contentious in another place, perhaps it may be possible to seek clarification on one important matter. When the matter was debated in the House on Report on 2nd November the noble and learned Lord the Lord Advocate explained that the Government's view was that the removal of a judge did not involve the determination of a civil right because there was, a distinction between rights of appointment and termination in the public sector, which are matters of public law, and economic rights, such as rights to payment of salaries or pension, which are matters of private law, giving rise to civil rights".—[Official Report, 2/11/98; col. 67] That is important because it seems to us that there is an obligation upon both Houses of Parliament to ensure that in enacting legislation they do not authorise or require unnecessary breaches of convention rights under the European Convention on Human Rights. It seems to us that there are indeed two kinds of civil rights at stake when a judge is to be removed from public office. One is the civil right to reputation, which could be gravely affected were the judge to be removed without just cause. The other is that although judicial pensions are not themselves to be devolved to the Scottish assembly, a judge needs to earn his pension and, if prematurely removed from office, his pension rights, which are part of property rights, as the Government accept, will be jeopardised by a premature removal from office.

Therefore it seems to us that the Government have been wise in accepting the spirit of the amendment of the noble and learned Lord, Lord McCluskey, and they may wish to flesh it out in some form or another in another place. Is the noble and learned Lord the Lord Advocate able to confirm that there are civil rights at stake? One may reach a situation where there is a conflict with the European convention if we do not create an independent and impartial tribunal, established by law, to deal with the removal of Scottish judges in the way now happily agreed on all sides of the House.

Lord Mackay of Drumadoon

My Lords, I fully support the amendment. It reflects not only the amendment spoken to by the noble and learned Lord, Lord McCluskey, when we discussed this on Report, but also an amendment which I tabled on the ninth day of Committee, on 5th October. As I pointed out then, the idea of a judge surviving, because there was not a majority of two thirds against him, was one which I found unacceptable. I well understand why the Government have brought forward the amendment. I welcome it.

I am extremely grateful to the noble and learned Lord the Lord Advocate for explaining the Government's intentions as far as concerns the wider issues: namely, the removal of Scottish judges. It is clearly a non-political issue. When I spoke on Report I made it perfectly clear that I had no absolute views as to the detail of the mechanism involved. However, it will not have escaped the Government's notice that the amendment which the noble and learned Lord, Lord McCluskey, put to a vote, was one that had appended to it the names of my noble friends the noble Lord, Lord Mackay of Ardbrecknish, and the noble and learned Lord, Lord Fraser of Carmyllie, and myself. Without disclosing too many secrets, it was an amendment framed in consultation with others. Therefore, I hope that it will be possible for the Government to consult with myself, my noble and learned friend and my noble friend when finalising the detail of what is proposed for another place.

It would be extremely unfortunate were there to be any further controversy on the matter. As the noble Lord, Lord Lester, has said, the issue of convention rights undoubtedly arises, but there are more practical issues such as the number of personnel who should compose the tribunal and what qualifications, if any, they should have other than those described for the person who will chair the tribunal. To avoid further difficulty it may be prudent to be given as much notice of that as possible. I stress my thanks to the noble and learned Lord the Lord Advocate for giving us as much notice as possible of the Government's intentions.

8.30 p.m.

Lord Hope of Craighead

My Lords, I too support the amendment for the reasons which have been expressed. I add my own words of thanks to the noble and learned Lord the Lord Advocate for the explanation which he has given us about the Government's thinking.

There is one point which I should like to stress; that is, the importance of ensuring that the Scottish parliament has power to make arrangements for members of the Privy Council and Lords of Appeal in Ordinary to sit as members of the tribunal.

Doubts were expressed on the last occasion as to whether, without power given to it from this Parliament, the Scottish parliament would be able to involve people who held those positions in such an arrangement. It must not be forgotten that the tensions which are likely to arise in Edinburgh, should one of those events ever occur, would be considerable. It would be invidious for the question of removal to have to be decided by judges who sat on the same Bench as the judge who was at risk of being removed. For that reason, I am particularly glad that the noble and learned Lord was able to tell us that it is proposed to give that particular power to the Scottish parliament.

As for the question of the removal of the qualified majority, it is eminently sensible that should a positive report be reached—that is, that a particular judge is not suitable or is unable to sit—that that should not fall by reason of a failure to reach the qualified majority.

Lord Hardie

My Lords, perhaps I may reassure the noble and learned Lord, Lord Hope of Craighead. As I indicated, the amendment which will be tabled to be considered by the other place will make specific provision for the chairman to be qualified under Clause 1 or 3, so that would overcome that particular difficulty.

As regards the point made by the noble and learned Lord, Lord Mackay of Drumadoon, the amendments dealing with the removal of judges are expected to appear on the Commons Order Paper tomorrow for discussion on Wednesday. There will not be time for a vast discussion but I should be happy to explain the proposals to the noble and learned Lord if he wishes.

I deal with the point raised by the noble Lord, Lord Lester. It is not necessary to become involved in that discussion in the context of what we are doing now. I expressed our view on Report. There is a distinction between civil rights in the public and private sectors. That is still our position. But, happily, if the amendment is accepted in another place we shall not have to exchange views with each other across the Dispatch Box.

If the noble Lord wishes to know my opinion, it is not appropriate that I should give it here and certainly I should not give it to him and not give it free.

Lord Lester of Herne Hill

My Lords, I am sure that no opinion that is given from the noble and learned Lord the Lord Advocate comes free in the sense that it is not fully considered.

The House needs to be informed about its international obligations. I shall not pursue the matter but I simply ask the noble and learned Lord the Lord Advocate to consider the points which I have made which are new and separate from those which have been raised already. They may be important hereafter. The point about reputation and deprivation of the opportunity to earn a pension seem to us to be important. Will the noble and learned Lord the Lord Advocate consider those points and ponder upon them in the light of his previous statements to the House?

Lord Hardie

My Lords, I am always happy to consider any matter which the noble Lord raises. I thank all noble Lords for their support on the amendment.

On Question, amendment agreed to.

Lord Ackner moved Amendment No. 42:

Page 46, line 4, leave out ("two") and insert ("three").

The noble and learned Lord said: My Lords, this amendment has all the appearance of a drafting amendment but it is a little more important than that because it deals with the tribunal which has that significant role to play with regard to deciding whether or not there is a situation in which a judge should have his appointment terminated. That is a great responsibility given to that tribunal. If it consists only of two persons, then there is a risk either of a disagreement or of an unsatisfactory compromise decision.

I sat many times in the Court of Appeal with a tribunal of two. I rarely found it a comfortable occasion because one was deeply anxious as to whether one's colleague would suddenly depart in a direction with which one did not agree. A two-judge court is an invitation to the possibility of disagreement and if you have the disagreement, what then? You have to start all over again and if there is no provision for three judges, you will have to start all over again with two other judges who may disagree. And so it may go on.

Therefore, on the occasion when this matter was last raised on Report, I suggested that the two should become three. My noble and learned friend Lord McCluskey, whose amendment I was referring to in that very moderately critical way, accepted that there should be three judges, if that were the will of parliament.

I wish to take this opportunity to amend the record in a small way. I must have been suffering from ideas above my station when I sought to recollect what occurred 20 years ago when a humble Address was moved, or was likely to be moved, to remove me from the office which I held as a Justice of the High Court. That Address was not made in this House. It was made in another place.

As I indicated to your Lordships, an amendment was tabled. I said that it was tabled by Lord Broxbourne. He was not then Lord Broxbourne. The amendment was tabled by Sir Derek Walker-Smith. His proposal was to delete all that was in the humble Address and to put in its place what I suggested contained a list of qualities that even my best friends may not have recognised in me.

By way of mitigation, in support of what I have said, I shall read out the amendment tabled by Sir Derek Walker-Smith, and your Lordships can see the strength of my observation. His proposal was to, leave out from 'That' to end and add 'this House recognises in Mr Justice Ackner the qualities of fairness, clarity, patience and courtesy which make him eminently fitted for high judicial office; deprecates ill-considered criticism of him, whether deriving from ignorance or political partisanship; and hopes that he will for many years continue to serve successfully the cause of British justice'". Having read that out, my only regret is that my noble and learned friend the Lord Chancellor is not present to hear it. I beg to move.

Lord Lester of Herne Hill

My Lords, I am delighted to speak after the noble and learned Lord, Lord Ackner.

Lord Hardie

My Lords, I hesitate to interrupt the noble Lord, Lord Lester, but perhaps I can assist. I indicated to the noble and learned Lord, Lord Ackner, that we will be accepting this amendment.

Lord Lester of Herne Hill

My Lords, I shall be brief and wish to make only two points. First, there was one lapse in the career of Mr. Justice Ackner in his extra judicial capacity which is that I recall he sponsored me for Silk. That showed a certain cloud in his judgment at the time. In all other respects Sir Derek Walker-Smith—Lord Broxbourne—understated the position.

In relation to two-judge courts, I am delighted to hear that the amendment is to be supported by the Government. In my experience as an advocate there is nothing worse than a two-judge court; it is a recipe for weakness. Finally, it seems to me that a three-judge court recognises the gravity of what is at stake when a judge is being considered for possible removal.

Lord Hope of Craighead

My Lords, it is only right that I should confess that it was at my suggestion that the noble and learned Lord, Lord McCluskey, changed his original proposal, which was a tribunal of two or three, to a tribunal of two.

I have sat on a two-judge court which was responsible for removing a sheriff under statute. Perhaps it was against the background of that experience that I made the suggestion. It was made largely having regard to the strain on manpower that might be caused if three Lords of Appeal in Ordinary—that was the suggestion at one time—had to sit on the tribunal. However, I am content to give way to those wiser than myself who recognise the virtues of a three-judge court. No doubt in the framing of the amendment to be considered in another place, the Scottish parliament will be given power to select a suitable three-person tribunal from a sufficient body of people to avoid the kind of strain on manpower that I had in mind.

Lord Hardie

My Lords, as I indicated, the Government are happy to accept the amendment of the noble and learned Lord, Lord Ackner. We intend to take his arguments into account in moving amendments of our own in another place.

I should have said in respect of the previous amendment that the noble and learned Lord, Lord McCluskey, regrets that he is unable to be here this evening as he is undertaking judicial duties.

Lord Ackner

My Lords, I am grateful to my noble and learned friend the Lord Advocate for his willingness to accept this amendment and for agreeing to deal with the major proposals which this House accepted on Report in the way he indicated.

On Question, amendment agreed to.

[Amendment No. 43 not moved.]

8.45 p.m.

Clause 103 [The Judicial Committee]:

Lord Lester of Herne Hill moved Amendment No. 44:

Page 49, line 4, leave out from ("1876") to end of line 5.

The noble Lord said: My Lords, the purpose of Amendment No. 44 is simply to enlarge the potential pool in the Judicial Committee of the Privy Council to include not only British judges from the four corners of the United Kingdom, but also senior Commonwealth judges who have a considerable body of experience in deciding constitutional and human rights cases.

On the second day of Report the noble and learned Lord the Lord Chancellor said, We should stick for the time being with the Judicial Committee. It has a long history of dealing with cases and appeals of a constitutional character from the Commonwealth".—[Official Report, 28/10/98; col. 1985.] I respectfully agree with that and it is precisely that experience in hearing constitutional appeals from the Commonwealth which will be so beneficial in the determination of devolution issues, with or without human rights implications.

We have the enormous benefit of senior judges such as the noble and learned Lord, Lord Cooke of Thorndon, who sit at present both on the Appeal Committee and on the Judicial Committee of the Privy Council. We will be depriving ourselves of a source of judicial experience and wisdom if we narrow the pool. It will be strange to narrow the pool so that a retired Court of Appeal judge from England, who may have no great experience of public law cases or constitutional issues, is to be within the pool, but a constitutional judge from the Commonwealth who can sit, for example, on the final court in Hong Kong, for precisely similar reasons would be disqualified from sitting as a member of the Judicial Committee.

We are happy that the Government will take an inclusive rather than an exclusive view of membership of the Judicial Committee by widening the pool. There will be the added practical advantage that the great burdens that are now being imposed through the heavy caseload upon Lords of Appeal in Ordinary will be better shared if one can widen the pool so that there are more potential members of the Judicial Committee to deal with cases of that kind.

The amendment seeks to enhance rather than to diminish the authority and experience of the Judicial Committee. It is difficult to think of any good reason against it other than a kind of blinkered English, Scottish or Northern Irish insularity of which I am sure the Government will plead not guilty. I beg to move.

Lord Kingsland

My Lords, I rise to endorse entirely what the noble Lord, Lord Lester, said. The fact that we are in danger of being deprived of the remarkable intellect and enormous experience of the noble and learned Lord, Lord Cooke of Thorndon, on these devolution issues is the best possible reason for supporting this amendment.

Lord Cooke of Thorndon

My Lords, I can hardly fail to rise to that bait. It is obvious from the remarks that preceded me that I have to declare some sort of interest, small and highly contingent though it is.

I hope to be forgiven for claiming your Lordships' attention for a few moments, if only on the score of time. I have been a member of the Judicial Committee of the Privy Council since 1977. If the Gods are kind, I have yet a few more years of judicial service before time takes off the bails at the age of 75. Astonishingly enough, it would seem that there is no other presently serving member of the Judicial Committee who happens to have enjoyed the privilege for so long.

It seems to me that two points are worth bearing in mind in relation to Amendment No. 44. It is partly repetition of what the noble Lord, Lord Lester, said but, first, if the Judicial Committee is to be the final tribunal for Scottish constitutional issues, why change its ordinary membership by excluding the handful of Commonwealth judges? For long the Judicial Committee has decided constitutional issues, even the most arcane of them from former colonial territories now independent. Some of the judges by now have more extensive experience of human rights issues than the United Kingdom judiciary have yet had the opportunity of gaining. Why reject all possibility of some little help from that quarter or indeed of augmenting the currently circumscribed membership of the Judicial Committee?

Secondly, there is a development in the direction of international judicial co-operation. I have previously ventured to mention to your Lordships the composition of the Bloody Sunday inquiry in Northern Ireland. There, an English Law Lord is chairman. Two retired Commonwealth judges are the other members. One is my former colleague from New Zealand, Sir Edward Somers, and the other is Mr. Justice Hoyt of Canada. Both Sir Edward Somers and the chairman, the noble and learned Lord, Lord Saville, are members of the Judicial Committee of the Privy Council.

As the noble Lord, Lord Lester of Herne Hill, has already done, I add a further example, of Hong Kong. Under the Sino-British agreement, the way of life in Hong Kong—the capitalist system and the rule of law there—is to remain unchanged for 50 years. The Hong Kong court of Final Appeal at present consists of four permanent local judges, residents of Hong Kong, plus one member drawn from a panel of members of other common law jurisdictions. There is, in fact, a panel of six, of whom two are from the United Kingdom, two from New Zealand and two from Australia. Of those six, four are members of the Judicial Committee of the Privy Council. It is early days yet, but so far the court is working well. It has jurisdiction over human rights and constitutional issues.

In population, Hong Kong is rather larger than Scotland but one may hazard a guess that no Scot will feel any inferiority on that account. Might not something broadly similar be advantageous and far-sighted in the present constitutional system or, may I respectfully ask the noble and learned Lord the Lord Advocate, is a more insular view to prevail and, if so, why?

Lord Hope of Craighead

My Lords, I should like to support the amendment and to make two particular points perhaps to assist your Lordships to understand the arguments which are being put forward. The first is that to express the proposition as widening the pool has to be understood in the context of how wide that widening will be. As I understand it, there are two requirements for qualification to be a member of the Judicial Committee in this context. One is that the jurisdiction from which the Commonwealth judge comes is a jurisdiction which sends its appeals to the Privy Council. The second is that the jurisdiction in question recognises Her Majesty the Queen as head of state.

The practical consequence of that under our arrangements today is that Australia, for example, is excluded because Australian appeals no longer come to the Judicial Committee of the Privy Council. Trinidad and Tobago, for example, which has a very distinguished Chief Justice, is also excluded because it is a republic. Hong Kong, of course, is now excluded because it is no longer part of the Commonwealth. Canada, although it too has distinguished judges, is excluded because it too does not send appeals to the judicial committee.

Therefore, in practice, the number of jurisdictions from which these appointments are likely to be made are very few and probably restricted at any given time to one or possibly two people from the Caribbean in those countries which recognise Her Majesty as head of state, and New Zealand. It is particularly the contribution from New Zealand which I should like to stress. For the reasons explained by my noble and learned friend Lord Cooke of Thorndon, New Zealand judges are given the opportunity to contribute on a worldwide basis. In their own jurisdiction, they have experience of the sort of problems with which we shall have to deal.

In the short time that I have spent as a member of the Judicial Committee, I have had the privilege of serving with New Zealand judges and I can speak at first hand of the very significant contribution they make to our discussions.

The other point is a point of principle. In our very useful debate on an earlier amendment tabled by the noble Lord, Lord Lester of Herne Hill. with regard to the constitutional court, I think the point was made that one of the matters the Government were anxious to avoid was anything that might suggest that the choice of membership of the Judicial Committee was made with regard to national origins. Certainly, it is true that as the Judicial Committee sits at the moment, national origins do not matter because it is a body which is complete in itself. In a way, by excluding the Commonwealth judges who at present serve on the Judicial Committee, the Government are going against that principle because that excludes people who, by national origins, have no direct concern with the people of the United Kingdom. It would be more consistent with the approach of keeping the Judicial Committee as it exists already to recognise the contribution which those judges make and to accept the point which has been made; namely, that they should continue to offer their assistance in these new and important issues.

Lord Clyde

My Lords, no one who has the privilege of serving with the noble and learned Lord, Lord Cooke of Thorndon, in the Privy Council would fail to appreciate the very real contribution that he and, indeed, the few others like him have made, and can make, to the workings of that body.

I strongly support the proposed amendment. However, I am conscious that almost everything that can be said in favour of it has already been said. I would add only one further consideration: one cannot foresee with confidence how much work will be imposed on the Privy Council under this legislation. But I suspect—and I think that I am not alone in suspecting—that at least early on there may be a considerable quantity. Why, then, should there be any hesitation in enlarging to such a small extent as may be possible the potential membership of that body and certainly adding immeasurably to its skill and expertise?

Lord Mackay of Drumadoon

My Lords, I support the amendment moved by the noble Lord, Lord Lester of Herne Hill. We may well be talking about a small number of individuals. However, it is obvious from what has been said by the noble and learned Lords, Lord Hope of Craighead and Lord Clyde, that we are talking about the potential of adding a great deal of informed and experienced expertise to the work of the Judicial Committee in the first few years of its work on devolution issues.

If particular individuals are qualified to serve on the Judicial Committee in London dealing with other business, it seems difficult to articulate a good reason why they should not do so in London or, indeed, in any other part of the United Kingdom, when the Judicial Committee is addressing devolution issues.

From time to time in the debates on this Bill I have posed the question: What harm would there be in allowing or agreeing the amendment? That question seems to arise very succinctly in relation to this amendment. Far from there being any harm, there is potential to add a great deal of valuable experience. I warmly support the amendment.

9 p.m.

Lord Hardie

My Lords, I regret that the Government cannot accept the amendment. Noble and learned Lords and noble Lords have explained their reasons for supporting it, but perhaps I may begin by saying that both I and the Government also recognise the significant contribution of the noble and learned Lord, Lord Cooke, to the deliberations of the Judicial Committee over the years.

This Bill, like the Government of Wales Act, which is already on the statute book, and the Northern Ireland Bill, also before this House, currently provides that those who hold or have held the office of Lord of Appeal in Ordinary or high judicial office in the United Kingdom can sit on the Judicial Committee for cases involving devolution issues. "High judicial office" includes a judge of the Court of Session in Scotland and a judge of the High Court or Court of Appeal in England, Wales and Northern Ireland. The amendment would extend this so that judges, albeit a very small number, from Commonwealth countries could be selected.

To amend this Bill as suggested would provide a different potential membership for devolution cases under the Scotland Bill, as opposed to cases emerging under the Welsh and Northern Irish legislation. This in turn would, for no intrinsically good reason, lead to inconsistency as to who could consider cases relating to the various parts of the UK. I do not believe that that would be a sensible step. We should surely be seeking to maximise the degree to which experience gained in handling devolution cases under this Act can be drawn upon in cases concerning another.

Moreover, noble Lords will recall the interesting, detailed and indeed lengthy debate of last week about the constitutional court which was provoked by an amendment tabled by the noble Lord, Lord Lester of Herne Hill. In that debate, my noble and learned friend the Lord Chancellor said that the Liberal Democrat amendments were a marker for the longer term. I have to say that I find today's amendments rather at odds with ambitions for a constitutional court. These amendments surely would make the transition to a constitutional court more difficult by building into the consideration of certain devolution issues in the short term Commonwealth judges who might well, if the hopes of noble Lords opposite are fulfilled, have no longer-term involvement with this type of litigation. I was sorry that the noble Lord opposite did not acknowledge the implications of this wider context in introducing these amendments.

Therefore, the Government think that the current provision in the Bill is the appropriate one. It will allow the senior Lord of Appeal to select from a pool of judges with relevant experience and, conversely, for the experience of those judges over time to be pooled for their mutual benefit. This amendment, coming as it does after the passage of the Government of Wales Act, would instead tend to make sharing and developing that expertise less easy.

In making this provision for devolution cases, the Government do not for one moment mean to suggest that the experience of eminent Commonwealth judges does not play a valuable role in the Judicial Committee of the Privy Council. However, for devolution cases, we think that those who have held office in the United Kingdom will bring the relevant experience of the various judicial systems within the United Kingdom against which it will be necessary to consider devolution cases. Therefore, I urge the noble Lord to withdraw his amendment.

Lord Lester of Herne Hill

My Lords, I am extremely grateful to all noble Lords from all sides of the House who have spoken; and, indeed, I am especially grateful to all noble and learned Lords for their support. The arguments in favour which have been put forward by other speakers have not been replied to by the noble and learned Lord the Lord Advocate. He introduced two arguments. The first is that—and I put it in the vernacular—the pass has already been sold in relation to the Government of Wales Act and, therefore, rigid adherence to the Welsh template demands an identical pool of membership of the Judicial Committee in dealing with Scottish and Northern Irish cases.

Quite apart from the fact that it would, I suppose, be open to the Government to introduce a one-clause Bill amending the Government of Wales Act in that respect if they wished to do so in the next Session, that does not seem to me to a very compelling argument, for the following reason. The membership of the Judicial Committee of the Privy Council is not to be fixed; indeed, it is to be drawn from a very large pool. Therefore, it is not as though there will be a fixed membership of the same judges as there would be in a final constitutional court dealing with Welsh, Scottish and, indeed, Northern Irish cases. If the senior Law Lord chooses, he will make that choice from differing judges, some of whom may, for example, be retired members of the English Court of Appeal or the Scottish Court of Session. The membership will vary. There will also be difference when the House of Lords comes to decide cases which may to some extent overlap with devolution cases. Therefore, with respect, the argument based on the Welsh legislation does not seem to be at all compelling. Indeed, it does not deal with any of the points raised.

Secondly, the noble and learned Lord said that, were we to pass the amendment, it would somehow impede the desirable objective of producing a final constitutional court of the kind that exists in other jurisdictions. It is probably a failure on my part, but I simply do not understand that argument. The fact that in the interim we would be drawing upon wide and senior judicial expertise to reinforce the strength of the Judicial Committee surely would not impede some long-term broader reform when a different view might be taken.

The spirit of the late Lord Chancellor, Lord Gardiner, must be unhappy listening to this debate. I say that because it was he more than anyone who dreamt of a Commonwealth court that would transcend national frontiers and be able to deal with such cases. Of course, he was far too late in the 1960s for that great idea to come to fruition.

I am very sorry that the Government have not been able to accept my amendment. If this debate were taking place earlier in the day and not at 9 o'clock in the evening in a situation where the Government have a giant strength, I would have tested the opinion of the House on the matter. There is no point in doing so. I just believe that, with the benefit of hindsight, the Government will come to regret the fact that they have made an error of judgment and deprived us of the great benefit of the noble and learned Lord, Lord Cooke, and others like him. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 [Power to make provision consequential on this Act]:

[Amendment No. 45 not moved].

Clause 107 [Legislative power to remedy ultra vires acts]:

Lord Kingsland moved Amendment No. 46:

Leave out Clause 107.

The noble Lord said: My Lords, the purpose of this amendment is to raise two questions in relation to Clause 107 (b), which is that part of the clause which deals with the circumstances in which subordinate legislation is made when a member of the Scottish Executive exercises a function improperly.

I apologise to the noble and learned Lord the Lord Advocate for raising this issue in a manner which is often described as a probing amendment. At the Committee stage he addressed the House at length on Clause 107(a); and at the Report Stage my noble and learned friend Lord Mackay of Drumadoon, in a moment of uncharacteristic inadvertence, withdrew this amendment when the noble and learned Lord the Lord Advocate would have had the opportunity to answer the questions that I now ask.

The first issue concerns the definition of ultra vires. Is ultra vires in Clause 107(b) ultra vires in the sense of a member of the Scottish executive exercising a function which encroaches upon reserved powers; or does ultra vires have a meaning in the wider and more general sense of ultra vires in administrative law?

The second issue concerns the circumstances in which it is discovered that a member of the executive has exercised this function ultra vires. Quite often the discovery will be made in connection with judicial proceedings. I can quite see why subordinate legislation might be made subsequent to judicial proceedings to correct a matter which has encroached upon the reserved powers. But in my submission it would be quite improper for such legislation to be made during judicial proceedings. Indeed, were that done, it would breach the fundamental principle of the separation of powers which has been a hallmark of our constitution for the past 300 years. I beg to move.

Lord Mackay of Drumadoon

My Lords, perhaps I should begin by apologising to my noble friend for my inadvertence to which he understandably drew attention. Noble Lords who have followed our debates with interest will know that on a number of occasions we have touched on the terms of both Clause 105 and 107 and other clauses which give either to the United Kingdom Government or to the new Scottish executive the power to make subordinate legislation of a quite wide-ranging nature. Therefore I am sure the whole House—and, more importantly, perhaps the lawyers who will need to interpret this Bill when it becomes an Act of Parliament—would very much welcome an answer to the two succinct points that my noble friend raises.

Lord Sewel

My Lords, with Amendment No. 46 noble Lords opposite seek to delete Clause 107. I think the noble Lord, Lord Kingsland, recognised that as a probing amendment device. He will not be surprised to hear that we consider Clause 107 to be an important part of the Bill and that we cannot accept its deletion.

Clause 107 gives a power to the UK Government to make any provision that may be necessary or expedient in consequence of an ultra vires Act, or a suspected ultra vires Act, either of the parliament or of the executive. It enables problems which may result from an ultra vires provision of an Act of the Scottish parliament or actions of the Scottish executive to be addressed. Subordinate legislation will be able to make such provision as is necessary or expedient to remedy the problem. The subordinate legislation which does this may be retrospective in effect and may amend any enactment including an Act of the Scottish parliament or secondary legislation.

I hope noble Lords will agree that this is a sensible provision. There may be occasion where it is necessary for the remedial action to be taken quickly to address the consequences of ultra vires legislation or action. In most cases, of course, we would expect the Act to be referred back to the Scottish parliament. However, this may not always be possible. There will be circumstances where it would be outwith the competence of the Scottish parliament to pass any necessary remedial provision. Clause 107 gives the UK Government the power to make provision. Ultra vires in this context relates to the functions of a member of the Scottish executive which are those conferred upon him or her by the Bill, but the provision is not limited to that and would extend to other ultra vires matters although it is aimed at the specific competence of Scottish ministers.

It is not intended that the power contained in this clause should be used as a form of legislative override, and for this reason it is intended that this power should only be used with the consent of Scottish ministers, where that has not been a court decision. If there was no such consent then the appropriate method for resolving any dispute about vires would be to raise the matter in the courts as a devolution issue. I hope that gives some help to the noble Lord, Lord Kingsland, in relation to the questions that he asked.

9.15 p.m.

Lord Mackay of Drumadoon

My Lords, before the Minister sits down, could he please clarify one point that he made in relation to the power not being used except with the consent of the Scottish ministers? As I understand Schedule 7, the procedure to be followed for exercising the power under Clause 107 would be Type G, which would require that, the instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House". That procedure, as I understand it, would not require the consent either of the Scottish executive or of the Scottish parliament. I rather suspect that the two questions my noble friend has identified are really rather good ones. It may be a little late in the day to consider revising the terms of Clause 107, but I suspect there is force in the points he made. That suggests to me that the prudent course for the Government to follow would be to accept this amendment, reflect on the arguments which have been advanced by my noble friend and bring forward in another place a substitute for Clause 107 which would take account of the valid concerns he has raised not only as to the breadth of the clause which would cover any form of ultra vires but also the timing of such an order were it to impinge on the separation of powers.

The Earl of Balfour

My Lords, before the Minister replies, I wonder whether, with the leave of the House, I could refer to Amendment No. 64 in the name of the noble Lord, Lord Sewel. In that addition to the last part of Schedule 4 perhaps Clause 105 should be added to Clause 107. I thought, from what has been said, that provisions in this additional paragraph to Schedule 4 cover quite a lot of what has been said.

Lord Thomas of Gresford

My Lords, before the noble Lord the Minister replies, I wonder if I could—

Lord McIntosh of Haringey

My Lords, this is an Opposition amendment and the Opposition spokesman has already wound up, as far as I can tell. We have now had three interventions and I do not think we can have any more.

Lord Sewel

My Lords, perhaps I may clarify the point. The noble and learned Lord, Lord Mackay of Drumadoon, is quite right. This is a Type G procedure, which means that it falls to Westminster alone. However, the expectation is that the convention would develop in the way that I outlined in my original contribution.

Lord Kingsland

My Lords, I am not sure whether the prohibition of the noble Lord, Lord McIntosh, extends to me, as the mover of the amendment. The noble and learned Lord, Lord Mackay of Drumadoon, has, as on so many occasions in the past, saved me from the intellectual effort of rounding off my amendment, save for this: I hope the noble Lord the Minister will consider very carefully the scope of ultra vires in Clause 107. I listened very carefully to his reply and I think he went part of the way towards me but not quite as far as I would have hoped. It would be constitutionally a very questionable exercise if, for example, subordinate legislation could issue to, in effect, change the decision of a court that a Minister had breached the rules of natural justice. In my submission, Clause 107(b) is not clear about whether that would be the case or not.

The Deputy Speaker (Lord Elton)

My Lords, does the noble Lord wish to move or to withdraw his amendment?

Lord Kingsland

My Lords, in the circumstances I think it would be wrong of me to press this matter to a Division and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 111 [Regulation of Tweed and Esk Fisheries]:

Lord Sewel moved Amendment No. 47:

Page 52, leave out line 20.

The noble Lord said: My Lords, I beg to move Amendment No. 47 formally.

On Question, amendment agreed to.

Clause 126 [Interpretation]:

Lord Sewel moved Amendment No. 48:

Page 59, line 12, at end insert ("and includes an enactment comprised in, or in subordinate legislation under, an Act of Parliament, whenever passed or made").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Baroness Ramsay of Cartvale moved Amendment No. 49:

Page 60, line 3, at end insert— (""standing orders" means standing orders of the Parliament,").

The noble Baroness said: My Lords, I do not want the noble and learned Lord, Lord Mackay of Drumadoon, to become as sensitised to my use of the word "drafting" as he did at an earlier stage to my use of the word "technical", but Amendments Nos. 49 and 51 are indeed drafting amendments. They add to the Bill a definition of "standing orders" for the purposes of the Bill. Amendment No. 49 makes it clear that references in the Bill to standing orders are always to those of the parliament itself. A further amendment, Amendment No. 51 to Clause 127, adds that definition to the index of defined expressions. I beg to move.

Lord Simon of Glaisdale

My Lords, what else could "standing orders" mean—standing orders of the House of Commons, of the House of Lords, of a county council? One has only to read the Bill to see that "standing orders" can only mean standing orders of the parliament. This is yet another example of overloading a Bill with a whole lot of unnecessary verbiage.

Baroness Ramsay of Cartvale

My Lords, as a layman, I am inclined to agree. However, parliamentary draftsmen think otherwise. They wish it to be absolutely clear that it means standing orders of the Scottish parliament. I commend the amendment to the House.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 50:

Page 60, line 37, leave out ("administrative law") and insert ("judicial review of administrative action").

The noble and learned Lord said: My Lords, this is a drafting amendment which is intended to clarify what is meant by the reference to "administrative law" in the definition of Scots private law in Clause 126(4) as meaning the "judicial review of administrative action". I beg to move.

On Question, amendment agreed to.

Clause 127 [Index of defined expressions]:

Baroness Ramsay of Cartvale moved Amendment No. 51:

Page 62, line 53, at end insert—

Standing orders Section 126(1)

On Question, amendment agreed to.

Clause 130 [Commencement]:

Baroness Ramsay of Cartvale moved Amendment No. 52:

Page 63, line 21, after ("23") insert ("(1) and (6)").

The noble Baroness said: My Lords, as my noble friend Lord Sewel indicated at the end of the Report stage, this technical amendment is to correct a small error in Clause 130 to ensure that only the provisions in paragraph 23 of Schedule 8, amendments to the Insolvency Act 1986 which deal with disqualification of members of the Scottish parliament, come into force immediately on Royal Assent, and not other provisions of that paragraph dealing with the functions of the Registrar of Companies in Scotland, the Assistant Registrar of friendly Societies for Scotland and the Accountant in Bankruptcy. I beg to move.

On Question, amendment agreed to.

Schedule 1 [Constituencies, regions and regional members]:

Viscount Thurso moved Amendment No. 53:

Page 64, line 33, leave out ("85") and insert ("86").

The noble Viscount said: My Lords, sitting on these Benches, these are words that I do not usually hear myself say, but these are "drafting amendments of a minor and technical nature". I hope that in making that statement I have not cast a fly over the noble and learned Lord, Lord Mackay of Drumadoon. These amendments are consequential on the amendments that were accepted on Report. If one looks at Clause 85, one sees that it refers to exemption from jury service, which clearly has nothing to do with membership of the Scottish parliament, whereas Clause 86 has to do with representation at Westminster.

Amendment No. 54 relates to what was merely a slip of the pen. The sub-paragraph should have read, "2005", instead of "2003". I understand that the Government have indicated that they are willing to accept these amendments. I beg to move.

Lord Hardie

My Lords, the Government have no objection to these amendments. We see them as part of the package of amendments that noble Lords made to Schedule 1. However, I should make it clear that, while we accept the amendments as part of that package, we are still considering the implications of the amendments generally.

On Question, amendment agreed to.

Viscount Thurso moved Amendment No. 54:

Page 65, line 2, leave out ("2003") and insert ("2005").

On Question, amendment agreed to.

Schedule 3 [Standing orders—further provision]:

Lord Mackay of Ardbrecknish had given notice of his intention to move Amendment No. 55:

Page 68, line 41, at end insert—

("Scrutiny of subordinate legislation

. The standing orders shall include provision for the types of procedure to be followed by the Parliament for the confirmation, approval or annulment of subordinate legislation made by a member of the Scottish Executive.").

The noble Lord said: My Lords, since putting this amendment down, I have received a useful letter from the Minister which is lodged in the Library. I shall therefore not move it.

[Amendment No. 55 not moved.]

Lord Sewel moved Amendment No. 56:

Page 69, line 22, after ("or") insert ("political").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

Lord Simon of Glaisdale

My Lords, I have one question concerning "political parties". Is it envisaged that there will be no Cross-Benchers or independents?

Lord Sewel

My Lords, it is possible that there will be independents and Cross-Benchers and I do not believe that they are struck out by the wording. I indicated that the amendment was to clarify what "parties" meant. The distinction I sought to draw earlier today was to exclude wild and fancy dress.

On Question, amendment agreed to.

Schedule 4 [Enactments etc. protected from modification]:

Lord Sewel moved Amendment No. 57:

Page 70, leave out lines 33 and 34.

On Question, amendment agreed to.

[Amendment No. 58 not moved.]

Lord Sewel moved Amendment No. 59:

Page 70, line 47, after ("17(5),") insert ("19(7),").

The noble Lord said: My Lords, Amendments Nos. 59 and 62 are the Government's amendments to ensure that Schedule 4 does not prevent the Scottish parliament from modifying Clauses 19(7) and 69(3). These clauses provide that the validity of any act of the presiding officer or a deputy is not affected by any defect in his election and that the validity of any act of the Auditor General for Scotland is not affected by any defect in his nomination by the parliament. The parliament was given power to modify other similar provisions inserted at Report through the amendments to Schedule 4, but for technical reasons it was not possible to confer similar powers over Clauses 19(7) and 69(3) at that stage. We have now taken the opportunity to do so. I beg to move.

Lord Simon of Glaisdale

My Lords, this is a whole group of amendments including one which has not been moved. They are almost a shining example of the over-elaboration, to which I ventured to refer earlier, so as to be almost incomprehensible.

As I understand it, paragraph 1(1) of Schedule 4 forbids the Scottish parliament from modifying the Act. Subparagraph (2) modifies subparagraph (1) by allowing it to modify certain provisions. I cannot make head or tail of why the provisions are included or are to be added or taken out. This provision deals, I believe, with the defect in the election of the presiding officer or his deputy. Is that provision necessary at all?

There is a doctrine of the English common law whereby an officer, even if he is defective in his appointment, nevertheless can act validly as an officer de facto even though not de jure. That is not frequently relied on. It was drawn attention to in an article by one of the greatest common lawyers of the Commonwealth, the late Sir Owen Dixon, the Chief Justice of Australia. I do not know whether that is part of the Scottish common law. Perhaps the noble and learned Lord the Lord Advocate can tell us or perhaps write to me later if he does not have the information at his fingertips as I did not give him notice of my question.

There is also the question of how it is intended that this provision should be modified. As I said, paragraph (1) seems to say that the provision may not be modified. Paragraph (2) derogates from that and sets out the power to modify. Now we have an amendment which derogates from paragraph (2). If one wanted a really complicated provision that would be designed to mislead and mystify every reader of the statute book, that could hardly be better exemplified than by this amendment. Is the intention that the Scottish parliament may modify Clause 19(7), as it will be; and if so, how and why?

The same question arises on the other government amendment, Amendment No. 62. That provision relates to the Auditor General and says that he may act validly notwithstanding any defect in his appointment. Is that necessary? Would he not be an officer acting validly de facto? I may say that the leading case on this branch of the law is the decision by the New Zealand Court of Appeal, which went so far as to say that the judicial act of a judge invalidly appointed, including his jurisdiction in criminal cases, was nevertheless valid because he was an officer de facto even if not de jure.

I come to my second question. As it is intended, I presume, that the Scottish parliament may not modify Clause 69(3), why is that provision now added? I have not dealt with the amendments tabled by the Opposition but the purpose of many of them appears to be equally difficult to understand. Perhaps I should leave that matter until they are formally moved. In the meantime, I should be most grateful to have an answer to my questions on the two government amendments.

Lord Sewel

My Lords, I am enormously grateful to the noble and learned Lord for asking those specific questions. The parliament will modify the provisions by an Act of the Scottish parliament. He is correct to assume that the amendment has the effect of giving the parliament the power to modify Clauses 97 and 69(3) which deal with the acts of the presiding officer or the deputy. This adds for the sake of completeness, and completeness only, to a range of modifying powers.

Lord Simon of Glaisdale

My Lords, my question was why.

Lord Sewel

My Lords, as to why, these are the last elements of a package of powers provided to the parliament to modify certain provisions in the Bill. For example, one relates to protections which received full support in your Lordships' House. The idea that the parliament should develop its own protections was welcomed by noble Lords opposite. It is because the provisions in Clauses 97 and 69(3) fall into that group of powers that theoretically it is sensible to allow the parliament to modify them. But for the life of me I cannot think of any circumstance in which the parliament would wish to modify those powers.

Lord Mackay of Drumadoon

My Lords, in the spirit of co-operation I suggest that one possible example is the need to consolidate legislation.

Lord Sewel

My Lords, I am enormously grateful to the noble and learned Lord. Perhaps that will do it.

Lord Simon of Glaisdale

My Lords, I can ask a question only before the noble Lord sits down, or at least settles down. Does he really think it is desirable that the House should be discussing questions of this intricacy to which the noble Lord confesses he does not know the answers at 20 minutes to 10 at night on the Third Reading of a lengthy and complicated Bill?

Lord Mackie of Benshie

My Lords, in spite of the distinction of the noble and learned Lord, is his question not out of order on Third Reading?

Lord Sewel

My Lords, I do not wish to make a comment of any kind on that matter. I believe that we must address the issues as they come before us at whatever time of the day and at whatever stage of the Bill they are brought up, and I am happy to do that to the best of my ability.

On Question, amendment agreed to.

[Amendments Nos. 60 and 61 not moved.]

Lord Sewel moved Amendment No. 62:

Page 70, line 48, after ("50,") insert ("69(3),").

On Question, amendment agreed to.

[Amendment No. 63 not moved.]

Lord Hardie moved Amendment No. 64:

Page 73, line 19, at end insert—

(". If any pre-commencement enactment or prerogative instrument is modified by subordinate legislation under section 105, a function under that enactment or instrument (whether as it has effect before or after the modification) is not transferred by virtue of section 53 if the subordinate legislation provides that it is not to be so transferred.").

The noble and learned Lord said: My Lords, Clause 105 provides a power to make provision consequential on the Scotland Act by subordinate legislation. This amendment ensures that where subordinate legislation modifies a pre-commencement enactment or prerogative instrument it may provide that a function under that enactment or instrument is not transferred by virtue of Clause 53.

This power may be necessary where a provision in the order is consequential upon some provision in the Bill other than Clause 53 which devolves functions to the Scottish Ministers. The general intention is that amendments made by Schedule 8 and under Clause 105 will show what the position is immediately after devolution. This amendment ensures that the necessary powers are in place. I beg to move.

On Question, amendment agreed to.

Schedule 5 [Reserved Matters]:

Baroness Ramsay of Cartvale moved Amendment No. 65:

Page 75, line 9, leave out from ("in") to ("when") in line 10 and insert ("it").

The noble Baroness said: My Lords, we have looked again at the layout of Part II of Schedule 5 and have concluded that improvements can be made to its layout to make it easier to read and to use. We therefore propose to make a number of printing changes to Part II of Schedule 5. The noble Lord, Lord Sewel, has placed in the Library copies of a letter sent to the noble Lord, Lord Mackay of Ardbrecknish, which includes a version of Schedule 5, including these changes. These will make the headings more eyecatching and introduce a numbering system which will give each section its own unique identifying number. They will also shorten Schedule 5 by a few pages, which I am sure the whole House will welcome.

Amendments Nos. 65 to 69 are linked with those changes and are purely drafting changes. I can give specific examples of those changes if noble Lords wish. I beg to move.

On Question, amendment agreed to.

Baroness of Ramsay of Cartvale moved Amendment Nos. 66 to 69:

Page 75, line 10, leave out ("other entries") and insert ("illustrations, exceptions or interpretation provisions").

Page 75, line 11, leave out ("The other entries") and insert ("Any illustrations, exceptions or interpretation provisions").

Page 75, line 11, leave out (", unless otherwise indicated").

Page 75, line 12, leave out (""exceptions from reservation" does not generally") and insert (""exceptions" does not").

On Question, amendments agreed to.

Lord Sewel moved Amendment No. 70:

Page 76, line 18, leave out ("1984") and insert ("1998").

The noble Lord said: My Lords, I think that this is the last occasion on which I shall appear before your Lordships saying that these are primarily technical amendments to the Bill. The Bill currently reserves the subject matter of the Data Protection Act 1984 and the subject matter of the 1995 EC Data Protection Directive. However, the 1984 Act is prospectively consolidated and repealed by the Data Protection Act 1998 which received Royal Assent on 16th July of this year. It is therefore appropriate to replace the reference to the 1984 Act with the 1998 Act and that is what Amendment No. 70 does.

However, much of the 1998 Act is not expected to come into force until the middle of next year. Amendment No. 71 therefore ensures that the amended reservation of the subject matter of the 1998 Act will be fully effective even if some of the provisions of the 1998 Act are not in force when Schedule 5 is brought into force. I trust that that is clear. I beg to move.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 71:

Page 76, line 20, at end insert—


If any provision of the Data Protection Act 1998 is not in force on the principal appointed day, it is to be treated for the purposes of this reservation as if it were.").

The noble Lord said: My Lords, the amendment has been spoken to previously. I beg to move.

On Question, amendment agreed to.

Lord Selkirk of Douglas moved Amendment No. 72:

Page 79, line 13, at end insert—

("Regulation of particular practices in the estate agents' profession for the purpose of regulating that profession in the provision of estate agency services.").

The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 74 and 75.

Housing is a delegated subject to the Scottish parliament. One of the most important aspects of housing is the buying and selling of houses. In this process the work of estate agents is an essential element. Therefore, it makes sense to devolve estate agency along with housing. Furthermore, if solicitors are to be regulated by the Scottish parliament, then estate agents providing similar services should be subject to the same regulations issued by the Scottish parliament. It is in the consumers' interests that the regulatory regimes of similar services are, or should be, within the competence of the Scottish parliament. This would ensure a level playing field in competition law regulation in respect of identical or similar activities. If Scots civil and criminal law and Scots housing law are to be devolved, it surely makes sense to devolve regulation of estate agency as well, whether practised by solicitors or estate agents.

Amendment No. 75 is consequential on Amendment No. 72. The legal systems north and south of the Border are different. One of the perceived benefits of the Scottish system is that there is no gazumping in house selling and buying. It is therefore appropriate that Scots estate agents working in this field should be subject to Scots law and practice and be regulated by Acts of the Scottish parliament.

Amendment No. 74 raises the issue of future developments with regard to the definition of the legal profession. Historically, notaries public and solicitors have been separate offices, although in many cases solicitors are also notaries public. Again, clarification is necessary. The amendment anticipates three developments: opportunities for foreign lawyers to establish themselves in Scotland to provide legal services; the creation of multi-disciplinary practices (partnerships between lawyers and non-lawyers); and the creation of multi-national practices (partnerships between Scots lawyers and foreign lawyers). It is therefore appropriate to anticipate possible change rather than create a potential need for the Scotland Bill to be amended in future. I earnestly hope that the Minister will accede to the amendments so that the Bill need not be amended in due course. I beg to move.

9.45 p.m.

The Earl of Mar and Kellie

My Lords, these amendments have much to commend them. The anomaly being created within the estate agents in Scotland is difficult to understand. Having tabled similar amendments in Committee, I wonder whether the noble and learned Lord the Lord Advocate can still be content with the Bill's proposal to split parliamentary control of solicitor estate agents and non-solicitor estate agents.

Amendment No. 74 is forward looking. It refers to the likely possibilities of new legal businesses setting up in Scotland in its new constitutional form.

Lord Mackay of Drumadoon

My Lords, I support the amendments and will not be moving Amendment No. 73 which is in terms similar to Amendment No. 74. Amendments Nos. 72 and 75 were discussed previously. It may well be that as much as can be said about them has been said. However, I recollect that Amendment No. 74 arose out of the comment made in Committee and it would be helpful if the noble and learned Lord the Lord Advocate could give the Government's response to it.

Lord Hardie

My Lords, as regards Amendments Nos. 72 and 75, the White Paper specifically referred to the Government's intention to reserve the regulation of estate agents and their work. It is presently regulated on a UK-wide basis under the 1979 Act and the Director General of Fair Trading has the duty of enforcing the provisions of that Act. It is in the interests of consumers that the provisions of the Act apply in the same way on both sides of the Border. I believe that the noble Lord is under some misapprehension. Where a solicitor is acting as an estate agent he or she will still be regulated by United Kingdom legislation and subject to the Director General of Fair Trading. Therefore, there will be uniform regulation across the United Kingdom.

Turning to Amendment No. 74, the position is different in England and Wales as regards notaries public. In Scotland all notaries public are solicitors so there is no need for a separate reference. As regards the EC establishment directive, member states are required to give effect to it by 14th March 2000. When it is in place, the directive will give European lawyers the right to practise in Scotland and to integrate into the legal profession here. They will be subject to the same rules of professional conduct and disciplinary proceedings as Scottish solicitors and advocates. Any provision made by the Scottish parliament by virtue of this exception should therefore apply to such foreign lawyers when practising as a solicitor or advocate in Scotland.

As regards multi-disciplinary partnership practices, although the primary legislation prohibiting MDPs was removed by the 1990 Act, the Solicitors (Scotland) Practice Rules 1991 and the Solicitors (Scotland) (Multi-Disciplinary Practices) Practice Rules 1991 prohibit such arrangements. It may well be that if such arrangements are eventually permitted, it will be on the basis of anyone participating in such a practice will be subject to the relevant rules of the legal profession. However, if such arrangements are allowed and should it be thought in that event that the current definition is too narrow, that is a matter which could be addressed by a Clause 30 order.

As regards multinational practices within the definition of the legal profession for the purposes of this exception, as noble Lords will be aware, although it has never been commenced, Section 32 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 provides for the establishment of multinational practices between Scottish solicitors and registered foreign lawyers. Again, as I have already said in the context of multi-disciplinary practices, it may well be that if such arrangements are eventually permitted, it will be on the basis that anyone who participates will be subject to the relevant rules of the legal profession. If the current definition in this exception is too narrow, again a Clause 30 order could be made to rectify that. For the reasons given I invite the noble Lord to withdraw the amendment.

Lord Selkirk of Douglas

My Lords, in the light of what the noble and learned Lord the Lord Advocate has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 73 to 75 not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 76:

Page 82, line 9, at end insert—