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Lord Hardie: My Lords, the noble and learned Lord moved a similar amendment on Report. Since then not only has he written to the Lord President but I have

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had a meeting with the Lord President which I believe predated the letter which the Lord President wrote to the noble and learned Lord. In his letter the Lord President quite clearly accepts the logic of the Government's position. If this Bill is to be passed, the logic is that the noble and learned Lord the Lord Advocate, as with any other public authority, should be subject to the terms of the Act.

As regards the noble and learned Lord's reference to the Lord President finding the change to be startling, I should perhaps simply read out the appropriate sentence from the letter of the Lord President to the noble and learned Lord. The Lord President, having dealt with the question of the inevitability of the application of the Bill to the noble and learned Lord the Lord Advocate, states,

    "But, however startling the change may be, I cannot see how it can be avoided once incorporation takes place".
I am not sure that he was necessarily accepting that the change was startling, as the noble and learned Lord, Lord Mackay of Drumadoon, said. It is a question of interpretation. There is no justification for having a gap in the protection provided by the Bill. Furthermore, I have no desire to be placed in a position in which, when exercising this role in my capacity as Lord Advocate, I am seen to be above the convention. I think that is also a logical position given the position that has been taken in relation to the Church of Scotland and other bodies seeking exemption.

As regards the question of which court should hear such applications, the noble and learned Lord will be aware that Clause 7(2) indicates that the appropriate court or tribunal will be determined in accordance with rules. These rules will of course be made in due course by the Secretary of State for Scotland. In fairness to the Lord President, he indicated that there was a case for the Court of Session. There may also be a case in some situations for the High Court of Justiciary. However, the Lord President did not want to be drawn into that debate and wished specifically to reserve his position. I anticipate that that will be a matter for my right honourable friend the Secretary of State for Scotland. I anticipate also that, in accordance with normal procedures, soundings will be taken with the Lord President and his views will be taken into account, although of course I cannot commit my right honourable friend the Secretary of State in that regard. Having explained the reasons for being opposed to this amendment, I invite the noble and learned Lord to withdraw it.

Lord Mackay of Drumadoon: My Lords, before the noble and learned Lord the Lord Advocate sits down, I hope that he will address the issue I raised as regards the relationship of the provisions in the Scotland Bill with those in this Bill, as I believe that is a fundamental issue if the position of the noble and learned Lord the Lord Advocate is to be devolved. I am happy to say that it will not necessarily follow that the noble and learned Lord himself will go if his post is devolved. However, the position will be devolved and there could be a devolution issue on the lines of one route, which is set out in Schedule 6 to the Scotland Bill, and which

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I suggest is incompatible with any rule-making power under Clause 7. I do not anticipate that, if the Secretary of State designated that such issues should be raised in the Court of Session and/or the High Court of Justiciary, there could be any question of his writing into the rules a right of appeal to the Judicial Committee when no such right of appeal currently exists.

Lord Hardie: My Lords, there will no doubt be many an hour available to us to discuss the provisions of the Scotland Bill when it comes to this House. I simply adopt the position of my noble and learned friend the Lord Chancellor and indicate that any inconsistencies will be addressed at the appropriate time.

Lord Mackay of Drumadoon: My Lords, I am happy that the inconsistencies will be addressed. However, the practical problem is that the Bill will now pass from your Lordships' House. Unless there are amendments to it in another place, it will not be competent for me or any other noble Lord to raise an amendment to the Bill to take account of any concern that we have. Therefore I hope that before reaching a concluded view on the matter, the noble and learned Lord the Lord Advocate will consult not only with the courts but also with those such as myself who are genuinely interested in ensuring that when we have devolution the scope for unnecessary legal dispute is minimised.

I found the noble and learned Lord's construction of the Lord President's letter somewhat startling. But now is neither the time nor place to dwell on that.

I have raised the matter as fully as I can. I believe that I have discharged my duty to your Lordships' House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Judicial acts]:

The Lord Chancellor moved Amendments Nos. 17 and 18:

Page 6, line 5, leave out ("of a court").
Page 6, line 19, after ("act"") insert ("means a judicial act of a court and").

The noble and learned Lord said: My Lords, at Report stage I indicated that the Government would be making a minor drafting amendment to this clause to remove a possible source of confusion. At present Clause 9 refers in subsection (1) to "a judicial act" and in subsection (3) to a "judicial act of a court". It therefore uses a slightly different expression in two places. There is a small risk that the courts might interpret "judicial act" on its own as embracing acts whose nature is judicial and not merely acts of a court. For example, a prison governor imposing a penalty on a prisoner in breach of prison regulations could be said to be doing something which is a judicial act. That is not the intention of the clause. Although we would not expect the courts to have difficulty in concluding that Clause 9 is intended to operate only in relation to judicial acts of a court or tribunal, we think that we should not leave that possibility for confusion.

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Amendment No. 17 therefore removes the words "of a court" from subsection (3). Amendment No.18 adds to the list of definitions in subsection (5) to make it quite clear that "judicial act" means a judicial act of a court. I beg to move.

On Question, amendments agreed to.

8.45 p.m.

Clause 12 [Procedure]:

Lord Coleraine moved Amendment No. 19:

Page 8, line 7, at end insert ("and why it is appropriate to proceed by way of a remedial order").

The noble Lord said: My Lords, the amendment relates to the fast-track procedure whereby incompatibilities in legislation with the convention can be dealt with by remedial order. At Report stage we welcomed the introduction by the Government of a new provision to the effect that a Minister introducing a remedial order would provide Parliament with a statement as to why he considered an order in those terms to be appropriate.

When the noble and learned Lord moved the amendment, it seemed to me appropriate that the statement should extend to the Minister giving the reason why he thought not only that the terms of the order were appropriate but that it was appropriate to make a remedial order. The statement might well contain words such as, "The Government consider that the amendment of legislation is so simple that we do not need to proceed by way of introduction of a public Bill". Alternatively, they might say, "There are a number of cases pending and it is important to clarify the point. We can do so quickly only by remedial order".

It did not seem to me to be appropriate for such a statement to contain the words--as I hope the noble and learned Lord will agree--that the Government proceed by way of remedial order because there is no parliamentary time available to proceed otherwise.

I made the point at Report. The noble and learned Lord said that he would consider it and write to me. I had hoped that having taken my point on board he would undertake to bring back the amendment, properly phrased, in another place. I received his reply today. It was the next best thing. He said that he did not think the amendment was necessary. He wrote:

    "The amendment relates to clause 12(3)(b). That provides that a statement accompanying a remedial order (or draft) laid before Parliament must give 'the reasons why the person making it (or proposing to make it) considers an order in those terms appropriate'. Such reasons cover not only the reasons why it is appropriate to use the order-making powers, but also why it is appropriate to do in the terms proposed. Any doubt about whether that is the correct meaning of clause 12(3)(b) as currently drafted will, I suggest, be removed if one looks back at clause 10(2) where the word 'appropriate' is also used".
I do not agree with the noble and learned Lord's construction of the clause. Clause 12(3)(b) states,

    "considers an order in those terms appropriate".
It is dealing only with the terms and not with the appropriateness of making the order.

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The noble and learned Lord referred to Clause 10(2) which provides,

    "If a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate to amend the legislation using the power conferred by this subsection, he may by order make such amendments to it as he considers appropriate".
I stress that the word "appropriate" is used twice. I should have thought it reasonable to expect that if the intention was that the subsequent words should apply to both uses of the word "appropriate", the provision would have made that clear.

The noble and learned Lord addressed this point at Report. However, he does not seem to have taken the same view as he now does. At col. 407 of the Official Report of 29th January he said:

    "The other change that we propose is in the government Amendment No. 56. It would require a remedial order, or draft, to be accompanied by an explanatory statement. This would contain particulars of the court case in which the declaration of incompatibility had been made, and would seek to explain what the incompatibility was. It is designed, therefore, to facilitate the consideration of remedial orders by Parliament".
If the noble and learned Lord believed at that time that the clause covered the need to make the order, he would have said so. In writing the noble and learned Lord said that he would reflect on the point further. Having heard what I have said, I hope that he will feel able to bring back the amendment in another place in a proper form. I beg to move.

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