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Lord Prys-Davies: In response to the speech of the noble and learned Lord, Lord Mackay of Drumadoon, I would mention that there is, of course, another view. There is a perception among members of the public that the Appellate Committee of this House is a part of Parliament's own processes and it would therefore be a judge in its own cause. It might not be seen as reaching an impartial judgment.
There is one question I should like to ask my noble and learned friend on the Front Bench. I note from paragraph 33 of the schedule that no member of the judicial committee shall sit and act as a member unless he holds certain offices. Going back to the question of public perception, if there are no Welsh judges on the Privy Council, can the Privy Council sit with lay assessors such as a Welsh academic with expertise in constitutional law?
If there is a constitutional issue, it is important that the public have confidence in the tribunal and its membership.
Lord Mackay of Drumadoon: I wonder whether, with permission, I might make one comment which I meant to make earlier about the amendment tabled by the noble Lord, Lord Thomas. I fully support that amendment and see absolutely no reason why that should not be the practice.
Perhaps I may raise as a related issue the question of where the court might sit? Whether it be the Appellate Committee of your Lordships' House or the Judicial Committee of the Privy Council, what is the Government's position on whether it would be competent for either of those bodies to sit, whether in Cardiff on the one hand or in Edinburgh on the other hand, when dealing with devolution issues?
As I think is well known, the Privy Council is occasionally convened in Scotland at a certain time of the year if any emergency business requires to be transacted. Therefore, as far as I am aware, there is no constitutional objection to the judicial committee taking up its judicial bed and walking. I have to say that whether it is to overcome the concern expressed by the noble Lord, Lord Prys-Davies, or for any other reason, if the ultimate Court of Appeal is able to sit in public, whether in Wales or in Scotland, and people who are interested are able to observe what is going on, that may well make the important role which judges have to play in the working out of devolution more readily understood. If they have to take controversial decisions, as I apprehend they may, they may make those decisions more acceptable.
The Earl of Balfour: Some of my amendments relate to Schedule 7. I shall start with page 91 and paragraph 7(2) which provides:
- "Sub-paragraph (1) does not apply
(a) to a magistrates' court, the Court of Appeal or the House of Lords, or
(b) to the High Court if the devolution issue arises in proceedings on a reference under paragraph 6".
I am no expert on the law, but that appears to leave only the county court. I am intrigued by that.
I turn now to page 92 and my Amendment No. 220 and page 94 and my Amendment No. 235. There is almost the same schedule in the Scotland Bill. I have equally no doubt that there will be a similar schedule within the Northern Ireland assembly Bill when it arrives.
The Lord Advocate is an office that goes back many centuries. It is in the Scotland Bill. The Lord Advocate has not been included in almost the identical procedures within this Bill. That made me wonder. We have the advocate general, and that is fair enough. He is a new person. Those are the fundamental questions that I am raising on Schedule 7.
Lord Falconer of Thoroton.: I shall deal first with the amendments referred to by the noble and learned Lord, Lord Mackay of Drumadoon, which would substitute this place for the Judicial Committee of the Privy Council as the judicial mechanism for resolving disputes about the assembly's use of its powers. The Government have made it clear in relation to this Bill and the Scotland Bill that the Judicial Committee of the Privy Council will be the most appropriate body to act as the final arbiter over constitutional matters relating to the exercise of its functions by the assembly or the Scottish parliament.
There are a number of reasons for that. First, the Judicial Committee acts already as the final constitutional court of appeal for the colonies and various parts of the Commonwealth. It therefore has experience of handling cases raising constitutional issues.
Secondly, it is important that there should be a flexible mechanism in place for disputes about the assembly's powers to be resolved promptly. The amendments, which seek to replace the Judicial Committee of the Privy Council with references to this place, would add to the judicial workload of this place. I am not sure that that would lead to prompt decisions on cases, bearing in mind the various provisions in Schedule 7 for cases to be referred on appeal.
Next, I draw attention to paragraph 33 of Schedule 7, which gives greater flexibility about the membership of the Judicial Committee of the Privy Council than exists for the judicial membership of this place. The Judicial Committee can draw its members from anyone who is, or has held the office of, a Lord of Appeal in Ordinary or certain high judicial offices. The latter includes Lord Chancellors and judges of the High Court or Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland but excludes senior judges from the colonies or the Commonwealth. I am afraid that it would also exclude the sorts of persons that my noble friend Lord Prys-Davies had in mind. It is a much larger pool than the pool for the Judicial Committee of the House of Lords.
For the reasons given, it is not possible for the Government to accept the amendments which seek to substitute this House for the Judicial Committee of the Privy Council, nor to remove references to it. I respectfully say that I think the right conclusion has been reached in relation to which is the more appropriate body. I know of no reason why the Judicial Committee of the Privy Council cannot sit anywhere in the British Isles that it chooses. Those in the box equally know of no reason why it cannot sit anywhere in the British Isles. If anyone can think of a reason, will he write and let noble Lords know? One should proceed on the basis that it can. When it deals with judicial matters
at present, it sits in public. It is obviously critical whether it continues to do so in relation to such issues. I imagine that it is a matter constitutionally for it to decide whether it wishes to go on circuit, as it were, and sit elsewhere. One can see considerable merit in the points made by the noble and learned Lord, Lord Mackay of Drumadoon, in that respect.10.15 p.m.
Lord Thomas of Gresford: The noble and learned Lord may recall that the Judicial Committee of the Privy Council frequently sat in India when India was in the jurisdiction of the Empire.
Lord Falconer of Thoroton: I do not recall it personally, but I accept that it occurred. On that note, I turn to the amendment of the noble Lord, Lord Thomas of Gresford, relating to the High Court and the Court of Appeal sitting in Wales, on which he spoke with some passion during Second Reading of the Bill. I am happy to tell him that the amendment is unnecessary. Under the provisions of the Supreme Court Act 1981, the High Court and the Court of Appeal can sit at any place in England or Wales provided they do so in accordance with the rules of court and directions of the Lord Chancellor. The power is there already. Whether they wish to do so is a matter for them rather than this House.
The noble Earl, Lord Balfour, referred to paragraph 7 of the schedule, asking in effect whether only the county court can refer matters to the Court of Appeal. The provisions in paragraphs 6 and 7 of the schedule are designed to have the following effect. Paragraph 6 provides that the magistrates' court cannot refer direct to the Court of Appeal. It can only refer to the High Court. Paragraph 7 is designed to ensure that the High Court or the county court can refer direct to the Court of Appeal a devolution issue, but the paragraphs exclude the Court of Appeal referring the matter to itself or the House of Lords referring a matter down to the Court of Appeal. I hope that that explains the provisions.
Amendments Nos. 220 and 235 moved by the noble Earl, Lord Balfour, are inappropriate because the purpose of paragraphs 13 and 30 in Schedule 7 is to give power to institute proceedings to a Law Officer of the UK Government, not a Scottish parliament. Under the Scotland Bill, the Lord Advocate will become a Law Officer of the Scottish Executive and the post of Advocate General for Scotland is being created so that the UK Government continue to have a Law Officer dealing with Scottish affairs. I would not envisage that someone exclusively a member of the Scottish Executive should have the right to which the noble Earl refers.
In the light of those explanations, I invite the noble and learned Lord, Lord Mackay of Drumadoon, the noble Earl, Lord Balfour, and the noble Lord, Lord Thomas of Gresford, to withdraw the amendment.
The Earl of Balfour: I am most grateful for that reply. I am beginning to understand matters a little better in that respect. I was intrigued to find subtle differences in the schedules dealing with all four countries of the
United Kingdom. I am much obliged and thank the Committee and the Solicitor-General for his helpful answer.
Lord Mackay of Drumadoon: I too am grateful to the Solicitor-General for clearly explaining government thinking. As to public perception, I am not entirely convinced by the argument that the Judicial Committee's experience of dealing with the colonies cuts much ice with those people who favour devolution or, to take it one stage further, independence. The Scottish National Party in another place was most vexed at the thought that any body, such as a Judicial Committee, that might be tainted with colonial experience should have a role to play in devolution. The issue interests many noble Lords, and I am sure that the Solicitor-General's remarks will be taken into account when they raise the matter during the passage of the Scotland Bill. I welcome also the Solicitor-General's comments on where the Judicial Committee can sit. I thought that the noble and learned Lord, Lord Thomas of Gresford, was going to tell the Committee that he had appeared before the Judicial Committee. Perhaps I am getting him mixed up with another learned Peer who frequents the Liberal Democrat Benches. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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