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Lord Fraser of Carmyllie: The noble Lord said that he found the previous discussion somewhat unedifying or alarming. Indeed so, and that is precisely why we have spent so much time seeking to have the matter clarified. In my view, the noble Earl is absolutely right in bringing forward this matter. I believe that the situation could become even more absurd. It may be that the presiding officer--whose title we shall certainly change before we get to the end of this Bill--will reach a view that what has been proposed is not within the legislative incompetence of the parliament. If he has reached such a view it would seem to me to be almost a matter of inevitability that the Lord Advocate would have reached the same view about the legislative incompetence of the matter.

It seems to me to set a new parliament off on a course that is really quite absurd if, as it begins to debate something, the presiding officer says, "I believe this to be legislatively incompetent" but the Lord Advocate has said, "You can carry on with this, but once it is all over I am going to challenge it." If we want to have a sensible, effective legislative process, it seems to me that the proposal to delete subsection (2) is eminently sensible. I would certainly also suggest that the proposal of my noble and learned friend Lord Mackay for a new amendment to put the matter beyond doubt is equally desirable.

4.45 p.m.

Lord Selkirk of Douglas: Members of the Committee who have just spoken have put forward extremely powerful arguments which the Government ignore at their peril. It is necessary for the Lord Advocate to state what precedents there are for Speakers or presiding officers--not just in this country but throughout the world--having powers to decide over issues of legislative competence. I do not believe that Speakers generally have those powers. In the House of

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Commons the Speaker has the power to specify a money Bill, but certainly does not have power in areas of legislative competence. I believe that Clause 31(2) is exceedingly unfortunate because it would diminish the standing of the presiding officer. It would make the position of the presiding officer infinitely more vulnerable than the position of the Speaker of the House of Commons and it could very readily bring the presiding officer into direct conflict with both the executive and the parliament. I do not believe that should be the role of the presiding officer. I hope that it will be the role of the Lord Advocate to specify the legislative competence of Bills.

Surely it should be inconceivable for any Bill to be brought forward by any regime or government in Scotland if it is not within legal competence. I do not imagine for a single moment that most presiding officers in Scotland will have the legislative ability of the present Lord Advocate or, indeed, of virtually any Lord Advocate; at least, it would be extremely unusual if that were to be the situation. It is exceedingly likely that the presiding officer would, in reality, follow the advice given by the Lord Advocate because he or she would almost certainly lack the same qualifications; and, of course, if the Lord Advocate were to be wrong, then it would be for the Judicial Committee of the Privy Council to sort that out.

The possibility of overruling the presiding officer could not arise in the same way in the House of Commons. This provision puts the presiding officer in a desperately vulnerable position. The presiding officer should not be in such a weak position. He or she should not be brought into conflict with the executive and should not be brought into conflict with the parliament. It is a basic instability in the Bill and it is one which I believe cannot endure.

Lord Desai: Perhaps I may briefly say that the House of Commons or the Westminster Parliament is not a good model for considering this question because there are no limits on its competence that it ever admits. Therefore, the question does not arise for the Westminster Parliament or for the Speaker. However, where there are written constitutions, especially where there is a federation, although we are not here discussing a federation, battles like this frequently have to be settled. This is not an unknown thing.

I would modestly suggest that we should not confuse the role of the Lord Advocate with that of the presiding officer. These are two different branches of government. I believe that it is quite likely--and why not?--that they would disagree. In that case the matter would be settled by the Judicial Committee of the Privy Council. This will be an interesting experiment. This is not Westminster politics; these are different politics; and why not?

Lord Rodger of Earlsferry: Where the presiding officer's view has been overridden, is he or she nonetheless under a duty to submit the Bill for Royal Assent? Subsection (3) is a curious provision. It simply says:

    "Standing Orders shall ensure that the Presiding Officer".

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It sounds as though it might be goodness knows who, if it were not provided that it were the presiding officer who submits the Bill for Royal Assent. Is that saying also that he is under a duty to present the Bill for Royal Assent? Does that duty apply--this is really where the question comes up--even if he remains of the view that it would be outwith the power of the parliament to pass the Bill--for example, that it would be unlawful in terms of the human rights legislation?

Lord Mackay of Drumadoon: Perhaps I may briefly mention the amendment which is grouped with Amendment No. 233A and indicate my support for virtually everything that has been said. Perhaps I should make it clear to the noble Lord, Lord Steel of Aikwood, if my noble and learned friend Lord Fraser of Carmyllie has not already done so, that, as lawyers, we believe this is highly undesirable. We may be raising all kinds of issues but we think it is undesirable that the courts should be involved at this stage.

It is important to bear in mind that however the new parliament goes about its business--I am not in any way seeking to be cynical--if the consensus approach does work on the ground at Holyrood, when issues come before the court I would be very surprised indeed if consensus comes with it. The party acting for individual parties will seek to have the legislation struck down or construed in a way that benefits the interests of their clients. The matter will be raised at this and subsequent stages in the hope that it will assist the Committee to address the fundamental issue: the extent to which the courts should have a greater role in the affairs of Holyrood than they are permitted to have in your Lordships' House and another place.

My noble and learned friend Lord Fraser referred to the Lord Advocate having the same view as the presiding officer. We have to accept that the current drafting of Clause 31 admits the possibility of different views. One cannot imagine a member of the Scottish executive making the statement referred to in the previous subsection unless the Lord Advocate, if called upon to do so in the parliament, were prepared to defend it. Therefore there is a possibility of the presiding officer reaching a different view on a question of law--no doubt with the benefit of legal advice--from that reached by the Scottish executive and the Law Officers when framing the legislation.

In that event two courses seem open. First, the individual member promoting the Bill should consider whether a drafting amendment on his own initiative before the Bill is introduced might take account of the presiding officer's concerns. The second alternative would apply unless subsection (2) is left out: that members of the parliament, many of whom would not have access to legal advice, would be asked to vote on essentially a question of law against the view of the presiding officer backed by his own lawyers. The latter alternative would be highly undesirable and, as the noble Earl said, would tend to diminish the standing of the presiding officer. Therefore I hope that the noble and learned Lord the Lord Advocate or the Minister who is to reply will address the various concerns raised.

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Lord Hardie: First, I agree entirely with the last comment of the noble and learned Lord, Lord Mackay of Drumadoon. It is conceivable that the Lord Advocate may take a different view from that of the presiding officer. Although I would anticipate that the presiding officer would take legal advice from his equivalent to the Speaker's counsel and would not act capriciously, it is possible that there could be a difference of opinion. Secondly, the presiding officer will consider all Bills that are being introduced into the parliament and not just government Bills. One may have a Back Bencher's Bill on which the presiding officer will take a view.

A noble Lord asked about the thinking behind this unusual power given to the presiding officer. It is not a power enjoyed by the Speaker in another place although the Speaker has certain powers in relation to a money Bill. But so far as I am aware, the Speaker in another place could not prevent a Bill being introduced into the House. The thinking underlying Clause 31 is to provide a first check so that if the presiding officer takes the view that something is ultra vires, he can say so. If that is accepted, it is an end of the matter. Again, one would hope that in the majority of, if not all, cases, it would be acceptable. However, one has to anticipate that the presiding officer may on a rare occasion get it wrong; and if he or she gets it wrong what happens? If no remedy is afforded to the parliament to overrule that decision, the presiding officer is acting effectively as the adjudicator and is almost usurping the ultimate function of the Judicial Committee of the Privy Council, the body given the task of adjudicating upon legislation.

If the presiding officer gets it wrong and subsection (2) is omitted, what alternative remedy is available to the parliament? I do not anticipate that any executive would act without the advice of its law officers. If the parliament, on advice, believes that the presiding officer has got it wrong, what is to be the remedy? If subsection (2) is deleted, there is no remedy.

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