Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Fraser of Carmyllie: Before the noble and learned Lord sits down, I addressed a specific matter in relation to former Ministers. In drawing together Clause 23, I believe that there must be some risk of that. I am not saying that it is necessarily a bad thing that such a

21 Jul 1998 : Column 775

Minister, if he has evidence to give, should not be summoned before the Scottish parliament. However, as it impinges upon the privileges of this Parliament, I believe that the issue should be spelt out clearly in the legislation.

Lord Hardie: I apologise to the noble and learned Lord. Indeed, I meant to deal with that position. Clause 23(1) allows the parliament to require any person to attend to give evidence or produce documents relating to any matter mentioned in subsection (2). There is no exemption for former Ministers, but the question is whether such an individual would have much information of relevance to the parliament. There would also be an issue of parliamentary privilege of a Member of Parliament whose first priority must be to the House of Commons. In practice, it is anticipated that the parliament in that situation would proceed by invitation.

Lord Fraser of Carmyllie: I am sorry to press this, but I do think that the matter of parliamentary privilege is most important. The practical way that the noble and learned Lord has spelt out is indeed what I would guess would be the way that the two parliaments would satisfactorily resolve matters. However, it is possibly a matter of keen conflict. We cannot allow proceedings and our debates to go forward on the basis that relations between this Westminster Parliament and the Scottish parliament will always be amicable. I am sure that the entire membership of this Chamber would wish that to be the case, but it might not always be so. Therefore, it seems to me that we must clarify the matter.

Lord Mackay of Drumadoon: I am slightly amused by the way that the noble and learned Lord has relied on the wise words of my honourable friend Mr. Jenkin in another place. Bearing in mind the way that his colleagues normally regard what Mr. Jenkin and others say and how they are criticised up hill and down dale for not understanding the Bill, it is mildly amusing that the noble and learned Lord should now seek to turn Mr. Jenkin against me.

The intervention by the noble Baroness, Lady Linklater of Butterstone, illustrated the purpose which lies behind the amendment. She said that it was a simple question of accountability. If it is supposed that Ministers of the Crown will be accountable to the Scottish parliament, then I perceive that there will be serious difficulty in the years ahead. If Ministers of the Crown do not wish to answer a question, they will, as the noble Lord, Lord Mackie of Benshie, said, theoretically be open to prosecution in a Scottish court under the provisions of the next clause.

We are discussing an important matter. Having raised it tonight, I had hoped that a more constructive response would be more forthcoming. However, the noble and learned Lord gave a number of explanations as to why he considered such a power was necessary. Therefore, rather than put the matter to a Division this evening, I intend to read most carefully what he said. As presently advised, I believe that it will be necessary to revisit the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

21 Jul 1998 : Column 776

[Amendment No. 137 not moved.]

The Deputy Chairman of Committees (Lord Lyell): I should inform Members of the Committee that if Amendment No. 137A is agreed to, I shall not be able to call Amendment No. 138.

The Earl of Mar and Kellie moved Amendment No. 137A:

Page 12, line 9, leave out ("which exercises the judicial power of the State").

The noble Earl said: This amendment deals with the Scottish parliament's powers to summon witnesses and documents. The amendment seeks to clarify which judges and which tribunal members are exempted from such a summons. The Bill refers to judges and tribunal members who exercise,

    "the judicial power of the State".

That is rather imprecise. What is the extent of that exemption? Will it extend to members of a children's panel or, for example, to the members of the Scottish Solicitors' Discipline Tribunal?. It is worth pointing out that the latter have to forfeit any fines to the Crown, much to the disappointment of aggrieved clients.

Beyond that, does it extend to judges of the European Court of Justice, of the European Court of Human Rights or indeed of the International Court of Justice? It would be helpful to understand the exact extent of this exemption. I beg to move.

Baroness Carnegy of Lour: This is an amendment in which I know the Law Society of Scotland is interested. Consequently, we shall all be interested to hear the Minister's reply.

Lord Hope of Craighead: I am bound to say that I also think that the phrase to which the amendment draws attention is in need of clarification. In addition to the reasons given by the noble Earl, the word "tribunal" is used elsewhere in the Bill. It appears in a number of places in Schedule 6, where a court or tribunal is required to deal with matters in particular ways should devolution issues arise. I can see the point to which the words are being directed. It may be that a distinction is being drawn between private tribunals--and I am thinking in particular of arbitration tribunals--and public tribunals. It is possible that there is a better way to define the kind of tribunal to which the provision refers; for example, by reference to the definition in the Tribunals and Inquiries Act 1971.

However, the point arises as to whether the word in that context is intended to have the same meaning in Schedule 6. It will be of great interest to those who sit on any kind of tribunal to know whether they are obliged to fulfil the duty imposed upon them under Schedule 6 to deal with devolution issues in the manner which is there set out. I support the suggestion that the phrase is in need of clarification. I do so not in any way to be obstructive, but simply in order to ensure that everyone can understand what the Bill seeks to do.

Lord Mackay of Drumadoon: I rise to express my support for the noble Earl's amendment, which raises

21 Jul 1998 : Column 777

the same issue as that contained in Amendment No. 138. When the Minister replies, it would be most helpful if he could us some examples of tribunals which exercise the judicial power of the state and of others which exercise a power of the state that is not judicial. That is where I have some difficulty. It would be of considerable assistance to know whether there are certain criteria by which one would work out which tribunals fall within the term which is used in Clause 23(6)(c).

Lord Hardie: As the noble and learned Lord, Lord Hope of Craighead, anticipated, the question of tribunals which exercise the judicial power of the state is distinct from private tribunals such as arbitrations. However, they may also be distinct from certain administrative tribunals which do not exercise the judicial functions of the state. That is the distinction which is sought to be drawn in this provision.

Perhaps I may advise Members of the Committee that there is a precedent for this phrase. In particular, there is reference to tribunals exercising the judicial power of the state in the Contempt of Court Act 1981 and in the Deregulation and Contracting Out Act 1994. That is where the phrase has been borrowed from by parliamentary draftsmen.

In answer to some of the points made by the noble Earl, Lord Mar and Kellie, I should point out that the European Court of Justice, the European Court of Human Rights and children's panels would all be tribunals exercising the judicial functions of the state. The issue of children's panels was specifically raised in another place. It was explained then that they would be included in the category of tribunals exercising a judicial function of the state. As I have already said--and I take here the point raised by the noble and learned Lord, Lord Mackay of Drumadoon--tribunals not exercising the judicial function of the state would, for example, be private arbitrations in relation to a commercial contract, or certain administrative tribunals which did not have a judicial function.

Subsection (6)(b) makes it clear that a "judge of any court" cannot be summoned. As I have said, this would include a judge of the European Court of Justice or the European Court of Human Rights. As regards administrative tribunals which exercise judicial functions of the state, I have in mind such tribunals as social security appeal tribunals, immigration appeal tribunals or industrial tribunals. They are also tribunals exercising judicial functions of the state. With that explanation I hope that the noble Earl will feel able to withdraw his amendment.

6.30 p.m.

Lord Hope of Craighead: Before the noble and learned Lord sits down, I raised an issue about Schedule 6. I appreciate that is not the matter we are discussing now, and it may not be a matter which can be dealt with immediately, but I would be grateful if the

21 Jul 1998 : Column 778

point I raised could be attended to because of the possible doubt about a difference in meaning in the two contexts.

Lord Hardie: I apologise to the noble and learned Lord. I would prefer to reflect upon that and come back to it when we discuss Schedule 6, or I may write to the noble and learned Lord on that matter before then.

Next Section Back to Table of Contents Lords Hansard Home Page