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Lord Williams of Mostyn: I can conceive of such circumstances in the vires context. I believe that the noble and learned Lord, Lord Mackay of Drumadoon, dealt specifically with the vires context. If there were a proposal by the Welsh assembly to deal with its devolved powers ultra vires, it seems to me as a matter of principle that any remedy would be capable of being sought by a disaffected party who had sufficient locus. That might well include the remedy of injunction. That
is a matter for the courts to develop. However, as a matter of principle, I believe that the noble and learned Lord is right in the vires context.
Lord Prys-Davies: Will my noble friend on the Front Bench deal with an issue which was not raised by the noble and learned Lord, Lord Mackay of Drumadoon? I have followed the proceedings of the joint Parliamentary Privilege Committee which has discussed this question. It has also discussed the question of whether a Member of Parliament should be immune from being subpoenaed to attend and give evidence in criminal or civil proceedings. I fully accept the relevance of Clause 78, as amended, but there is nothing in the Bill that deals with the question of whether a member of the Welsh assembly will be immune from being subpoenaed to give evidence. Therefore I assume that he or she will not be immune from that. I hope that my noble friend can answer that question.
Lord Williams of Mostyn: That is an interesting question. I believe it would depend on the basis of the evidence that was sought to be the subject of the subpoena or the order to produce documents. Certainly if it related to transactions which were non-assembly transactions, the matter would be clear. I wish to consider that question because it divides itself into at least two parts. I think it is better if I write to the noble Lord and place a copy of my reply in the Library.
Lord Mackay of Drumadoon: In responding to the Minister, perhaps I should make it abundantly clear that I was fully aware of the terms of Clause 78 as amended. I was also fully aware of the amendments that were tabled to the standing orders for the reason that, when I went to put down the same amendments to incorporate the Scottish equivalent, I discovered that I had been beaten to the putting-down post, if I may use that term.
I hasten to assure the Minister that the purpose that lay behind this amendment had nothing to do with preventing members being sued for defamation and libel, and nothing to do with the disciplining of people who might or might not misbehave in the assembly, whether they are members of the public or members of the assembly. The purpose was to raise issues which are to some extent focused in subsection (2)(a) and (b) of the amendment. I hoped I had touched on the general issue. If a provision along these lines does not apply to the deliberations of the assembly, I conceive--and I believe I am not alone in this--that it will be possible for people to seek to challenge the decisions of the assembly, whether they are made by the assembly itself or by secretaries to whom decisions are delegated, by relying on what was said in debate and seeking to demonstrate to the court that the whole proceedings were based on a misunderstanding as to what the current law is, or that they proceeded on a failure to take into account the relevant considerations. In other words, we should be able to use speeches made in the assembly in a way that it is inappropriate to use speeches made in this Parliament by government Ministers or any other Member of this House or another place.
Therefore, I have to say frankly to the Minister that, while I fully accept that it has nothing to do with defamation of character or the issue of misbehaving, I find his answer not a complete answer to the questions I raised, which I consider to be of relevance to this assembly and also in relation to the Scotland Bill.
I am interested to have the Minister's acknowledgement that in certain circumstances injunction proceedings would be competent against the proceedings of the assembly. I intend to think very carefully about what he has said. I hope that he and his colleagues will reflect as to whether it is desirable if the courts on the one hand and the assembly on the other are to respect the constitutional position of each one who wishes to admit any responsibility at all of proceedings being taken to seek to interrupt the deliberations of the assembly, either because certain standing orders have not been complied with or there is an allegation that erroneous information is before the assembly as it moves to take an important decision in the exercise of its executive function.
This was clearly a probing amendment. On that basis, I seek leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 108 [Observing Community law and human rights]:
Lord Falconer of Thoroton moved Amendment No. 213B:
The noble and learned Lord said: Perhaps I may also speak to Amendments Nos. 213B, 213D, 213G and 213K. Amendment No. 213C is also in the group, but I shall respond to any noble Lord who speaks to it after I have spoken to my amendments.
My noble friend Lord Williams of Mostyn indicated at Second Reading that it would be necessary to bring forward amendments to bring this Bill into line with the Human Rights Bill, which is now being considered in another place. That is the purpose of the amendments to which I speak.
As the Government of Wales Bill presently stands, the assembly is forbidden by a provision in a single clause, Clause 108, to act incompatibly with Community law or with the convention rights. Government Amendments Nos. 213B and 213E unpack that clause, so that separate provision is made for Community law and separate provision for the convention rights.
The important changes in respect of convention rights are made by Amendment No. 213D, which has several elements. First, as drafted, Clause 108 does not specify who could challenge the assembly for a breach of its human rights obligations under that clause. The answer provided by the proposed new subsections (2) and (3) is that a person will be able to bring proceedings under Clause 108 only if that person is or would be a "victim" under Clause 7 of the Human Rights Bill or is a law officer of the United Kingdom Government or is the assembly itself. In determining such proceedings, a
Amendment No. 213G makes clear that, for the purposes of Clause 108, "action" by the assembly includes a failure to act. This brings Clause 108 into line with the Human Rights Bill, Clause 6(8) of which specifically includes failures to act save in certain limited circumstances. Amendment No. 213K makes a consequential amendment to the definition of devolution issues in paragraph 1 of Schedule 7 to ensure that a failure to act which is incompatible with the convention rights is a devolution issue for the purposes of the special judicial procedure involving the judicial committee of the Privy Council.
Finally, as a consequence of the unpacking of Clause 108 to which I previously referred, Amendment No. 213F makes a consequential amendment to Clause 109 so as to include in a single clause the existing provision as to Community obligations of the assembly and the provision, previously in Clause 108, for the assembly not to act in a way that is incompatible with Community law.
These are detailed amendments, but I hope that they will not prove controversial. I believe that they do not raise any new points of principle. I beg to move.
Lord Mackay of Drumadoon: I am grateful to the Solicitor-General for explaining these amendments, which seek to address an issue which I raised during the Human Rights Bill relating to the compatibility of the provisions of that Bill with the provisions of the Scotland Bill and the Government of Wales Bill, which became available during the passage of the Human Rights Bill through your Lordships' House. I regret that, because I was not present in your Lordships' House yesterday, I saw these amendments for the first time today. The amendments sent to me on Friday did not include these amendments and I have therefore not had as much time to look at them and consider their implications as I would have wished. I accept that they seek to address the concern I raised during the Human Rights Bill that there was possibly some incompatibility between the provisions of the two Bills which might be undesirable.
I have a number of questions to pose, in particular in relation to Amendment No. 213D. First, why is it proposed that proceedings in relation to any acts under the Government of Wales Bill which breach convention rights should be limited to those proceedings which can be raised under the Human Rights Bill? I understand that to be the purpose of the new subsection (2).
As the noble and learned Lord will be aware, the Government have not yet indicated which courts and tribunals will be designated as the appropriate courts and tribunals for the purposes of proceedings under Clause 7 of the Human Rights Bill. For that reason, it is at the present time impossible to identify what role the lower civil courts and certain tribunals may have in this area. Unlike the case of the transfer of functions, where draft orders are available, no draft orders are available in relation to the designation of the appropriate courts under Clause 7.
In that state of uncertainty, why should we limit the proceedings in the way that subsection (2) does? If either the Secretary of State for Scotland or the Lord Chancellor of England was to exercise the rule-making power under the Human Rights Bill and to provide that actions could only be raised in the superior courts--the High Courts of England and Wales or the Court of Session in Scotland--it might lead to additional complexity of litigation and inevitably additional expense.
Secondly, I raise a question in relation to Amendment No. 213D and the new subsection (3). Why should Law Officers be treated differently from any other party to the litigation? I merely pose the question. I have not had time to research it, but differentiating between the rights of one litigant--namely, the Law Officer--and the other litigants may raise an issue of Convention rights. One seems to be able to advance an argument which another party in the same litigation seeking to achieve the same result cannot. On a first reading that strikes me as an odd provision and I should welcome hearing further from the noble and learned Lord the Solicitor-General on that matter.
The amendments meet concerns that I felt and I welcome them. However, until I receive answers to those and other questions that may arise, I am unable to give the Minister an assurance that I consider these amendments to be as non-controversial as he. In view of the fact that they come forward at this stage, I do not intend to press Amendment No. 213C, though it may be necessary to return with that or a similar amendment at Report stage.
Lord Falconer of Thoroton: The noble and learned Lord, Lord Mackay of Drumadoon, poses two questions in his intervention. First, he asked why we limit the rights to those set out in the proposed subsection (2). The answer is that Clause 7(1) of the Human Rights Bill--the subdivision of the Law Officers--permits only victims to bring proceedings under that Bill. It would be anomalous and wrong for the Government to allow people who were not victims to challenge the assembly for contravention of human rights. In effect, we would be giving a greater locus to people in respect of the activities of the assembly than in relation to any other public authority in the country. That seemed to be wrong. At Second Reading therefore we said that we would introduce measures to make the two consistent, which is the purpose of subsection (2).
I hope that that answers the noble and learned Lord's first question. He asked also why Law Officers are treated differently. The reason is that a Law Officer is not a victim for the purposes of the Human Rights Bill. The Law Officers represent the public interest and, without the provision that we included in subsection (3), there would be doubt that the Attorney-General or the other Law Officers could bring proceedings against the assembly for breaches of convention rights when it would be appropriate that they did so to clarify a situation. I hope that that answers the noble and learned Lord's second question.
On Question, amendment agreed to.
[Amendment No. 213C not moved.]
Page 55, line 30, leave out ("Community law or").
9.45 p.m.
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