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Lord Thomas of Gresford: My Lords, the noble and learned Lord, Lord Mackay of Drumadoon, has made an important point. He says that having issues determined by the House of Lords would emphasise the supremacy of this Parliament. But in many devolution issues, if not perhaps in all, the question that will be decided will be the powers of the Welsh assembly as against this Parliament. Therefore, his argument on principle--that the supremacy of this Parliament should be emphasised, should be invoked, when this Parliament is a party to the dispute--seems to me, in principle, to be quite wrong.

The Judicial Committee of the Privy Council takes its jurisdiction directly from the Crown. Traditionally, the Judicial Committee give advice to Her Majesty. It is Her Majesty's order that is made in every appeal that comes from Commonwealth countries, or indeed from other jurisdictions, other areas, where the Judicial Committee of the Privy Council has responsibility.

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To my mind, if the combatants in a piece of litigation are, on the one hand, the Welsh assembly and, on the other, Westminster, it is far more appropriate that the Judicial Committee of the Privy Council, taking authority straight from the Crown, should be the arbiter.

Baroness Carnegy of Lour: My Lords, I rise with trepidation to comment, as a lay person, on this subject. Some time ago I read a lecture given to Edinburgh lawyers by the noble and learned Lord, Lord Hope, in which he discussed this matter and expressed opinions close to those that my noble and learned friend has expressed. I tried to understand these and I found them somewhat convincing.

It seems to me that on this issue it is extremely important that the process should work, but also that it looks right to people on the ground. These are amendments of high emotion and I am not convinced that in Scotland, at any rate, what was said by the noble Lord from the Liberal Benches is the case. The Judicial Committee and Her Majesty deciding issues will seem strange to people. They are used to the Lords of Appeal in Ordinary making ultimate decisions on legal issues in civil matters, but not in criminal matters in Scotland. They are completely accustomed to that, and I believe that they would accept that. I say that simply as an observer of the scene who is interested in that. Other points which my noble and learned friend made perhaps refute the case made by the noble and learned Lord the Solicitor-General at the previous stage, when I listened with great attention.

I understand from the lecture of the noble and learned Lord, Lord Hope, and from what my noble and learned friend has just said, that some of the issues which arise may be devolution issues, but some may not be and they may get mixed up together.

The second point which my noble and learned friend made is about what works. One could have the Judicial Committee and the Lords of Appeal in Ordinary deciding issues which are closely related, if not identical. Can the noble and learned Lord the Solicitor-General tell us who will win if they decide differently?

7.15 p.m.

Lord Falconer of Thoroton: My Lords, as the noble and learned Lord, Lord Mackay of Drumadoon, rightly pointed out, this raises the question of whether the final court determining devolution issues should be the Judicial Committee of the Privy Council or the Appellate Committee of this House. I gave the noble and learned Lord a full account of our reasoning in Committee. Could I briefly go over it again, without being too repetitive, because the noble and learned Lord has himself gone over it again?

There are, as he rightly identified, three reasons. First, the Judicial Committee of the Privy Council already acts as the final constitutional court of appeal for various parts of the Commonwealth and in respect of certain colonies. That is a function which gives it particular experience in dealing with the kind of issues that will arise in relation to devolution. The kind of matters that

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will arise in that respect will be issues about the powers of an assembly, so where in a constitutional settlement does power arise? That is the kind of issue that, from time to time, it has to resolve in relation to the written constitutions of other states.

Secondly, and I respectfully admit that this is an important point, the issues that could arise as devolution issues could be of great emotional or political importance at a particular time. Moreover, they will have the debilitating effect potentially upon the progress of certain measures through the Welsh assembly or the implementation of such measures. It is plainly of the greatest importance in these circumstances that those measures be dealt with as promptly as possible.

Thirdly, there is no doubt that the workload on the Appellate Committee of this House is heavy at the moment. If the Judicial Committee of the Privy Council is used, as opposed to the Appellate Committee of this House, there will be a greater pool of people who can be used. It means more than just Lords of Appeal in Ordinary; it means anybody who has held high judicial office who is a Privy Counsellor. That provides a much wider pool and it seems to me to be sensible that it should be used. No undertaking was given, or no indication was given, that such people would not be used in relation to Welsh assembly devolution issues. It seems to me entirely sensible that they should.

In those circumstances, one has a court which is used to dealing with the issues; a court which is likely to be quicker than the Appellate Committee of the House of Lords; and a court which has a wider pool from which to draw than the Appellate Committee of the House of Lords. Equally importantly, I believe that that court is held in the widest possible respect throughout the United Kingdom. There could be no doubt about both its ability and its experience to deal with such issues.

With greatest respect to the noble and learned Lord, Lord Mackay of Drumadoon, I believe that when he referred to the "supremacy of Parliament" he was muddled as to what that phrase means. There is no doubt that Parliament is supreme in relation to the activities of the Welsh assembly, but one is talking there about legislative supremacy and not about the role of a body exercising a court function, resolving disputes between parties.

It seems to me that nobody could possibly doubt that the Judicial Committee of the Privy Council was a separate and appropriate body to deal with that. It can deal with it more quickly and it has people experienced to deal with it. I would respectfully submit that the balance of the argument favours the Judicial Committee of the Privy Council.

I have not had an opportunity to read the lecture to which the noble Baroness, Lady Carnegy of Lour, referred in her speech, but I did not understand her to be saying anything over and above that which the noble and learned Lord, Lord Mackay of Drumadoon, said. When one analyses it, I believe that the sensible choice is the Judicial Committee of the Privy Council. I believe it is a choice that would command widespread respect. Therefore, despite the eloquent arguments put by the

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noble and learned Lord, Lord Mackay of Drumadoon, ably supported by the noble Baroness, Lady Carnegy of Lour, I do not believe that there is any reason for the Government to change their mind in relation to that.

Lord Lester of Herne Hill: My Lords, I apologise because I have heard only the speech of the noble and learned Lord the Minister. However, having heard his speech, I wonder whether he can deal with a point which concerns me. Has the time not come to have a Supreme Court with one jurisdiction rather than conflict between the Appellate Committee and the Privy Council? There should be a unified court with a constant membership.

Lord Falconer of Thoroton: My Lords, that is a rather wide issue. I do not think that this is the appropriate amendment on which to discuss the question of whether there should be a Supreme Court. I should deal with the issue of conflict, which was raised by the noble and learned Lord, Lord Mackay of Drumadoon. The noble and learned Lord will be aware that paragraph 29 of Schedule 8 to the Bill states:


    "Any devolution issue which arises in judicial proceedings in the House of Lords shall be referred to the Judicial Committee unless the House considers it more appropriate, having regard to all the circumstances, that they should determine the issue".
Of all the people in all the world who would be able to decide whether there would be a conflict, I should have thought that the Appellate Committee of the House of Lords would be the best people to judge in any individual case whether there was a risk of conflict. With respect to the noble and learned Lord, I think that that deals with the conflict point.

Lord Mackay of Drumadoon: My Lords, with the leave of the House, there is that aspect to the conflict. However, the point that my noble friend Lady Carnegy stressed, on which I certainly intended to touch, was the problem of the Appellate Committee on the one hand deciding an issue one way and the Judicial Committee on the other hand deciding it the other way. My noble friend posed the question: who wins?

Lord Falconer of Thoroton: My Lords, unless they are sitting simultaneously in relation to the same issue, which will never happen, the one will have the benefit of the other. Therefore, they themselves will be in a position to determine what the right result should be in relation to that. So I think that the idea of the conflict to which the noble Baroness referred is unrealistic. The court will have the benefit of previously decided cases both in the Judicial Committee and in the House of Lords before it comes to a conclusion and it will be able to take that into account. As the noble and learned Lord knows, the House of Lords, when sitting judicially, is entitled to depart from its previous decisions.

In any event--and an even better point--paragraph 32 of Schedule 8 states:


    "Any decision of the Judicial Committee in proceedings under this Schedule ... shall be binding in all legal proceedings (other than proceedings before the Judicial Committee)".

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So there are two answers.

I think I have dealt with all the points. The noble and learned Lord has not referred to his other amendments, which deal with costs issues, so I will not refer to those. In the light of my reply, I respectfully ask the noble and learned Lord to withdraw his amendment.


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