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Lord Falconer of Thoroton moved Amendment No. 213D:
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 213E:
On Question, amendment agreed to.
Clause 108, as amended, agreed to.
Clause 109 [Community obligations of Assembly]:
Lord Thoroton of Falconer moved Amendment No. 213F:
On Question, amendment agreed to.
Clause 109, as amended, agreed to.
Clause 110 [Power to prevent incompatible action etc.]:
Lord Falconer of Thoroton moved Amendment No. 213G:
On Question, amendment agreed to.
Clause 110, as amended, agreed to.
Schedule 7 [Devolution issues]:
Lord Falconer of Thoroton moved Amendment No. 213H:
The noble and learned Lord said: In moving this amendment I shall speak also to Amendment No. 213J. These two amendments are designed to elucidate the full meaning of "devolution issue" in Schedule 7. Amendment No. 213H simply proposes that a narrow question of vires--is the assembly to take any action in
Amendment No. 213J amounts to a tacit acceptance that the assembly may have duties imposed on it other than by Community law and, to the extent that these require judicial consideration, the procedure established by Schedule 7 would operate. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 213J:
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 213K:
On Question, amendment agreed to.
Lord Mackay of Drumadoon moved Amendment No. 213L:
The noble and learned Lord said: The first part of this amendment has clearly been overtaken by events, through Amendments Nos. 213H to 213K. I fully accept that, in the light of these amendments, which were tabled, as I understand it, subsequent to my amendment, the first part is inappropriate.
The second part of the amendment raises a distinct issue on which I should welcome a response from the noble and learned Lord the Solicitor-General. It arises in this way. If the assembly has failed to act in a manner which gives rise to an issue of vires based on an incompatibility with the convention rights of Community law, the fault may lie not with the assembly itself, but with the first secretary or one of the assembly secretaries who is responsible for presenting, for example, secondary legislation or proposals for action to it.
Therefore, I pose the question whether in those circumstances it may be appropriate to have as an additional devolution issue the matter which appears in the second part of the amendment. I readily accept that on one view it is an issue of construction as regards the constitutional position of the assembly that the first secretary and any of the assembly secretaries, will act
Lord Falconer of Thoroton: The noble and learned Lord answers his own question. We take the view that the second subsection, relating to assembly secretaries, would be otiose since the assembly secretaries would be acting for the assembly rather than in their own right. Their failures to act would be failures of the assembly to act. Even if the amendment had been necessary, that point would have been covered by the first proposed subsection. In the light of that assurance, I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: I am happy to accept that assurance which will be available if the issue should ever arise. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon moved Amendment No. 214:
The noble and learned Lord said: This is the first of a number of amendments raising the same issue; namely, whether in Schedule 7 references to the Judicial Committee of the Privy Council should be replaced by the insertion of the words "House of Lords". Accordingly, in moving Amendment No. 214, with the leave of the Committee, I should like to speak also to all the other amendments grouped with it.
The purpose of this series of amendments is to probe and, I hope, to have answered questions about the Government's thinking on the issue of whether it should be the Judicial Committee of the Privy Council, as the Bill proposes, restricted to those members who qualify under paragraph 33 of Schedule 7, or the House of Lords where, in accordance with the convention by which judicial business is handled in your Lordships' House, it would be determined by the Appellate Committee before reporting the matter to the House.
Clearly, this is also of relevance to the Scotland Bill, where the devolution issues that will arise for determination by the courts may be more extensive than those arising under this Bill, including, as they will, the vires of primary legislation which it will be competent for the Scottish parliament to enact. I understand that a number of noble Lords are concerned about this issue and that they intend to raise it during the passage of the Scotland Bill.
A number of considerations arise. First, the Appellate Committee of your Lordships' House already serves as the supreme court in the United Kingdom for all proceedings with one major exception; namely, that of criminal appeals from the High Court of Justiciary in Scotland. The question that therefore arises is: why, if that is the case, is it appropriate to substitute a new supreme court for this tranche of judicial business even
Secondly, I refer to the Human Rights Bill and to the judicial proceedings that will be competent under that legislation. As was mentioned earlier, Clause 7 of that Bill is relevant here. The ultimate court of appeal in civil proceedings will be the Appellate Committee of your Lordships' House. In many instances, the issues raised will be similar. Indeed, Amendment No. 213D, to which the Committee has recently given approval, may mean--indeed, it probably will mean--that the issues raised are virtually identical. Therefore, it is possible to imagine a situation where the same act, or failure to act, could be challenged by different types of proceedings. In one type of proceeding, it would be competent for the ultimate court of appeal to be the Judicial Committee of the Privy Council, while in another type of proceeding it would be the Judicial Committee of your Lordships' House. The question arises whether that is entirely sensible.
The third consideration is that if the ultimate court of appeal is the Appellate Committee, it may serve to reinforce the supremacy of this Parliament in a way that would be welcomed by those of us who are committed to devolution and who are determined that the devolved assemblies in Wales and Scotland will work but equally that those bodies operate as integral parts of a thriving United Kingdom. I am aware that that view is shared by a number of Members of your Lordships' House.
At this time of night I merely raise this as a probing amendment to seek guidance as to why the Government have selected this particular route. I hope that that will be explained to the Committee and that the issues that I have raised in this probing amendment will receive a response.
Lord Thomas of Gresford: The noble and learned Lord, Lord Mackay of Drumadoon, has not put forward any particular case as to why the House of Lords should be the ultimate court of appeal. The Judicial Committee of the Privy Council has both domestic and overseas jurisdiction. Customarily, it has dealt with constitutional issues arising out of written constitutions in the Commonwealth and overseas territories. Its present jurisdiction is reduced because all of the Hong Kong area and many of the overseas territories that customarily were dealt with by the Privy Council have gone. Procedurally, it is easier to deal with than the House of Lords and is more flexible.
I do not understand the argument that the House of Lords in its judicial capacity should be the ultimate appellate court because of the supremacy of this Parliament. I understood that its supremacy was the Queen in Parliament. The Privy Council reports to Her Majesty who makes decisions on the advice of the Judicial Committee of the Privy Council. I do not believe that it can be much more "supreme" than that. I do not believe that that provides any particular reason why the matter should not remain with the Judicial
I turn to Amendment No. 215 in my name and that of my noble friends Lord Hooson and Lord Geraint. At Second Reading I suggested that it would be far simpler, easier, quicker and less costly if constitutional issues arising out of the Welsh assembly were brought before a court in Cardiff as opposed to having to come to London. This amendment seeks to make what I believe to be the highly practical suggestion that the High Court, sitting in its capacity as a divisional court, and the Court of Appeal may sit in Wales. That power may already exist. If I hear that from the Benches opposite I shall be satisfied. However, I have no personal knowledge of any case where the court has sat as a divisional court in Wales. Certainly, the Court of Appeal does not do so.
I was criticised on the basis that I sought to up the ante and make a greater constitutional innovation in Wales and give it greater power, by giving to Wales its own Lord Chief Justice. I do not believe that that was the burden of my remarks. However, even if that were the case, Northern Ireland with a population of 1 million has a Lord Chief Justice and Scotland has all kinds of judges. The noble and learned Lord, Lord Mackay of Drumadoon, will be able to enumerate them. They are not very well known to us. I refer to the Lord Justice Clerk and so on. Scotland has a whole raft of judges who sit in Edinburgh and who no doubt will continue to do so. Why, therefore, should we not have in Wales a High Court judge who sits in the Divisional Court who customarily deals with constitutional issues and knows the whole set-up, has regular people in front of him who are accustomed to argue the constitutional issues, and from him to the Court of Appeal?
In Wales we are fortunate to have some eminent Lord Justices of Appeal, any one of whom, I am sure, would fulfil that function and give that expertise which the people of Wales will require on issues of that sort. If the present system is used, every time a constitutional issue arises in the Divisional Court or the Court of Appeal is approached in London, the whole background to the Government of Wales Bill will have to be gone into. The powers of secondary legislation and its division from primary legislation will have to be investigated as from the beginning with each new tribunal before which those issues are raised. That would seem in the end to be a highly expensive and inappropriate procedure.
If, as I see from some nods from the Bench opposite, the power exists for the High Court and the Court of Appeal to sit in Wales, I would welcome an indication that that will be permissible.
Page 55, line 31, at end insert--
("(2) Subsection (1) does not enable a person--
(a) to bring any proceedings in a court or tribunal if he could not do so under the Human Rights Act 1998, or
(b) to rely on any of the Convention rights in any proceedings in a court or tribunal if he could not do so by virtue of that Act.
(3) Subsection (2) does not apply to the Attorney General, the Assembly, the Advocate General for Scotland or the Attorney General for Northern Ireland.
(4) Subsection (1)--
(a) does not apply to an act which, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section, and
(b) does not enable a court or tribunal to award any damages which it could not award by virtue of that Act.").
Transpose Clause 108 to after Clause 109.
Page 55, line 35, at end insert--
("( ) The Assembly has no power--
(a) to make, confirm or approve any subordinate legislation, or
(b) to do any other act,
so far as the subordinate legislation or act is incompatible with Community law.").
Page 56, line 18, leave out ("do acts") and insert ("act (or fail to act) in a way which is").
Page 90, line 33, at end insert--
("( ) a question whether a function is exercisable by the Assembly,").
Page 90, line 39, at beginning insert ("a question whether the Assembly has failed to comply with a duty imposed on it (including").
Page 90, line 40, at end insert (", or
( ) a question whether a failure to act by the Assembly is incompatible with any of the Convention rights.").
Page 90, line 40, at end insert--
("( ) a question whether a failure to act by the Assembly is incompatible with any of the Convention rights or with Community law, or
( ) a question whether a failure to act by the Assembly First Secretary or one of the Assembly secretaries is incompatible with any of the Convention rights or with Community law.").
Page 90, leave out lines 41 and 42.
10 p.m.
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