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Lord Williams of Mostyn moved Amendment No. 66:
On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 67:
On Question, amendment agreed to.
Clause 21 [Interpretation, etc.]:
Lord Henley moved Amendment No. 67A:
The noble Lord said: My Lords, the amendment was put down at the suggestion of my noble and learned friend Lord Mackay of Drumadoon. It is merely a probing amendment. I hope that the noble and learned Lord the Lord Chancellor will be able to satisfy me on this matter.
He will see that in the Bill the words "public general Act" are used. Our concern is whether the phrase "public general Act" covers Acts of Parliament from the English Parliament or the Scottish Parliament passed before the Act of Union in 1707. I am advised that there are still some Acts on the statute book and could therefore be relevant. We were unsure whether "public general Act" covered those cases. An assurance from the noble and learned Lord that the words cover Acts of Parliament passed by both those Parliaments before 1707 would satisfy us. I beg to move.
The Lord Advocate (Lord Hardie): My Lords, I think it is fair to say that we are dealing here with what is a purely drafting point. This amendment would insert into the definition of primary legislation in Clause 21 of the Bill an express reference to Acts of the Parliaments of England and Scotland passed before the union of England and Scotland in 1707. As the noble Lord opposite explained, the concern is to ensure that such Acts are treated as primary rather than subordinate legislation under the Bill. At present the Bill defines primary legislation as including a "public general Act" but it does not further define what is meant by a public general Act. In fact the term is nowhere defined in legislation.
The question whether the definition of primary legislation should expressly include references to the various pre-union Parliaments was one which the Government considered before the Bill was introduced.
The issue arises not only in connection with the former Parliaments of England and Scotland, to which this amendment refers, but also in connection with the Parliament of Great Britain which existed in the period from 1707 to 1801; that is, after the Union of England and Scotland and before the union with Ireland, and in connection with the Parliament of Ireland in the period before 1801.
As noble Lords may be aware, the treaties of union themselves affirm the continuing validity of former legislation so far as not altered or repealed by the successor Parliaments. Article XVIII of the Preamble to the Union with Scotland Act 1706, for example, preserves (with certain exceptions) the validity of all,
Similarly there is no doubt that pre-1801 Acts of the Parliament of Ireland form part of the body of legislation in Northern Ireland. That follows from Section 1, Eighth Article of the Union with Ireland Act 1800 and the express savings provided by Section 61 of the Government of Ireland Act 1920.
We concluded that there was no need to make express provision on the point raised. The Bill invites a judge presented with a piece of legislation to conduct a very simple exercise to decide whether the legislation is primary or secondary. There can be no serious risk that the enactments of old Parliaments which preceded the United Kingdom Parliament in its present form could ever be regarded as subordinate legislation. In our view the enactments of those Parliaments must be primary
Lord Henley: My Lords, I have every intention of withdrawing the amendment, and I am grateful to the noble and learned Lord the Lord Advocate for staying here all evening purely to deal with this one amendment. I can only offer an apology to the House that, as a Peer of Ireland as well as a Peer of the United Kingdom, I failed to include Acts of the Irish Parliament and Acts of the Parliament of Great Britain that existed between 1707 and 1801. I shall not return to this matter at Third Reading. I believe that the assurances given to me by the noble and learned Lord are perfectly correct. However, should the issue arise again, I shall remember, when putting forward such amendments, to include other Parliaments as well as those that I did include. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Short title, commencement, application and extent]:
[Amendments Nos. 70 and 71 not moved.]
[Amendments Nos. 72 and 73 not moved.]
The Lord Chancellor moved Amendment No. 74:
Page 11, line 8, after ("1(4)") insert (", 7(9A)").
Page 11, line 10, after (" 18(6)") insert ("or Schedule (Judicial Pensions)").
Page 11, line, 26 at end insert ("and includes any Act of the Parliament of England or of the Parliament of Scotland passed before 1st May 1707 ").
"laws in use within the kingdom of Scotland".
After Schedule 2, insert the following new schedule--
1.--(1) The appropriate Minister must by order make provision with respect to pensions payable to or in respect of any holder of a judicial office who serves as an ECHR judge.
(2) A pensions order must include such provision as the Minister making it considers is necessary to secure that--
(a) an ECHR judge who was, immediately before his appointment as an ECHR judge, a member of a judicial pension scheme is entitled to remain as a member of that scheme;
(b) the terms on which he remains a member of the scheme are those which would have been applicable had he not been appointed as an ECHR judge; and
(c) entitlement to benefits payable in accordance with the scheme continues to be determined as if, while serving as an ECHR judge, his salary was that which would (but for section 18(4)) have been payable to him in respect of his continuing service as the holder of his judicial office.
2. A pensions order may, in particular, make provision--
(a) for any contributions which are payable by a person who remains a member of a scheme as a result of the order, and which would otherwise be payable by deduction from his salary, to be made otherwise than by deduction from his salary as an ECHR judge; and
(b) for such contributions to be collected in such manner as may be determined by the administrators of the scheme.
3. A pensions order may amend any provision of, or made under, a pensions Act in such manner and to such extent as the Minister making the order considers necessary or expedient to ensure the proper administration of any scheme to which it relates.
4. In this Schedule--
"appropriate Minister" means--
(a) in relation to any judicial office whose jurisdiction is exercisable exclusively in relation to Scotland, the Secretary of State; and
(b) otherwise, the Lord Chancellor;
"ECHR judge" means the holder of a judicial office who is serving as a judge of the Court;
"judicial pension scheme" means a scheme established by and in accordance with a pensions Act;
"pensions Act" means--
(a) the County Courts Act (Northern Ireland) 1959;
(b) the Sheriffs' Pensions (Scotland) Act 1961;
(c) the Judicial Pensions Act 1981; or
(d) the Judicial Pensions and Retirement Act 1993; and
"pensions order" means an order made under paragraph 1.").
On Question, amendment agreed to.
Lord Simon of Glaisdale moved Amendment No. 75:
The noble and learned Lord said: My Lords, this is an amendment to the Title of the Bill. I moved it in the same form in Committee very late at night. I had hoped to move it before a full House this evening. There is nobody on the Government Back-Benches, so far as I can see. I believe that the noble Baroness, Lady Williams, has been faithful on the Liberal Democrat Benches, and there may be somebody else. I did the noble Lord, Lord Monkswell, a disservice; I did not see him enter the Chamber. As usual, the noble Lord, Lord Renton, has rightly come to invigilate on questions of statutory construction.
Tribute has rightly been paid to the draftsmanship and construction of the Bill. However, even with the best drafted measure the courts can be assisted by indications as to how it should be interpreted. There need not necessarily be an ambiguity. There is quite often matter for argument.
There are two, or possibly three, ways of indicating how a measure should be interpreted. The first is by examining the whole of the enacting provisions; but in addition (and secondly) in appropriate cases a purpose clause can be introduced. In my respectful submission, this was a very suitable measure for the inclusion of a purpose clause, and the noble Lord, Lord Mishcon, proposed one which met with general affirmation. He withdrew it in order to consider the matter further before Third Reading. It is erroneously reported in Hansard that the amendment was negatived. It was not, it was withdrawn.
The third method, by no means mutually exclusive with the other two, is an indication in the Long Title of a Bill. There is this to be said in favour of such an indication of construction, that unless the Long Title
In the absence at the moment of a purpose clause, this is very much a case where the Long Title can be slightly amended in order to give an indication. At present, it reads:
What a court of construction wants to know is whether it is intended that the Convention rights should apply in domestic law. That is precisely what the White Paper said and what my noble and learned friend has said on many occasions. So all I suggest is that in place of "further effect", the Long Title should read "domestic effect". That will mean something to a court of construction, whereas the Long Title at the moment means nothing at all. I beg to move.
Line 1, leave out ("further") and insert ("domestic").
"An Act to give further effect to rights and freedoms guaranteed under the European Convention".
My noble and learned friend the Lord Chancellor said quite correctly that that was perfectly true. So it is; it is a truism. There are two directions in which the Bill gives further force to the Convention. One is that it amplifies rights already given by our common law and contributes to the European Convention. The other is that it makes the Convention rights enforceable against public authorities in our own courts. But that is clear from the contents of the Bill.
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