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Division No. 1


Ackner, L.
Addington, L.
Ailsa, M.
Aldington, L.
Alexander of Tunis, E.
Allenby of Megiddo, V.
Alport, L.
Alton of Liverpool, L.
Ampthill, L.
Balfour, E.
Beaumont of Whitley, L.
Beloff, L.
Blatch, B.
Boardman, L.
Bowness, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Broadbridge, L.
Brougham and Vaux, L.
Cadman, L.
Calverley, L.
Carlisle, E.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Chalker of Wallasey, B.
Clanwilliam, E.
Clark of Kempston, L.
Clement-Jones, L.
Cope of Berkeley, L.
Craig of Radley, L.
Crickhowell, L.
Dacre of Glanton, L.
Davidson, V.
Denbigh, E.
Denham, L.
Denton of Wakefield, B.
Dholakia, L.
Dixon-Smith, L.
Dundonald, E.
Elibank, L.
Ellenborough, L.
Falkland, V.
Fookes, B.
Fraser of Carmyllie, L.
Garel-Jones, L.
Glasgow, E.
Gray of Contin, L.
Grey, E.
Hamilton of Dalzell, L.
Hampton, L.
Hamwee, B.
Harding of Petherton, L.
Harmsworth, L.
Harris of Greenwich, L.
Hayhoe, L.
Holderness, L.
HolmPatrick, L.
Home, E.
Hooson, L.
Hope of Craighead, L.
Howe, E.
Howell of Guildford, L.
Hylton, L.
Inchyra, L.
Jenkins of Hillhead, L.
Jopling, L.
Kinnoull, E.
Kintore, E.
Lang of Monkton, L.
Lauderdale, E.
Linklater of Butterstone, B.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Ludford, B.
Lyell, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Mackie of Benshie, L.
McNair, L.
McNally, L.
Mar and Kellie, E. [Teller.]
Marlesford, L.
Mayhew of Twysden, L.
Mersey, V.
Middleton, L.
Miller of Hendon, B.
Milverton, L.
Minto, E.
Monckton of Brenchley, V.
Mowbray and Stourton, L.
Munster, E.
Naseby, L.
Nelson, E.
Newall, L.
Nicholson of Winterbourne, B.
Noel-Buxton, L.
O'Cathain, B.
Park of Monmouth, B.
Pearson of Rannoch, L.
Pender, L.
Rankeillour, L.
Rawlings, B.
Rees, L.
Renton, L.
Roberts of Conwy, L.
Rodger of Earlsferry, L.
Rodgers of Quarry Bank, L.
Rowallan, L.
Russell, E.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B.
Selkirk of Douglas, L.
Sempill, L.
Sharples, B.
Skelmersdale, L.
Steel of Aikwood, L.
Stockton, E.
Stodart of Leaston, L.
Strathcarron, L.
Swinfen, L.
Taylor of Warwick, L.
Thomas of Gresford, L. [Teller.]
Thomson of Monifieth, L.
Thurlow, L.
Thurso, V.
Tordoff, L.
Torphichen, L.
Wallace of Saltaire, L.
Weatherill, L.
Wilcox, B.
Wise, L.
Wynford, L.


Alli, L.
Amos, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Blackstone, B.
Blease, L.
Blyth, L.
Borrie, L.
Brooke of Alverthorpe, L.
Brooks of Tremorfa, L.
Bruce of Donington, L.
Burlison, L.
Callaghan of Cardiff, L.
Carew, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Castle of Blackburn, B.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Currie of Marylebone, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Beswick, L.
Desai, L.
Diamond, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Evans of Parkside, L.
Ewing of Kirkford, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gilbert, L.
Glenamara, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Hacking, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jeger, B.
Judd, L.
Kennedy of The Shaws, B.
Kennet, L.
Kilbracken, L.
Kirkhill, L.
Levy, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Lovell-Davis, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
Mallalieu, B.
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Nicol, B.
Orme, L.
Paul, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Roll of Ipsden, L.
Serota, B.
Sewel, L.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Simon of Highbury, L.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Gryfe, L.
Thomas of Macclesfield, L.
Thornton, B.
Turner of Camden, B.
Uddin, B.
Varley, L.
Walker of Doncaster, L.
Wallace of Coslany, L.
Watson of Invergowrie, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

28 Jul 1998 : Column 1379

5.19 p.m.

Lord Mackay of Drumadoon moved Amendment No. 234:

Page 15, line 42, in place of the words last left out insert--
("(2) A decision made by the Presiding Officer under subsection (1) shall not be capable of being overruled by the Parliament.").

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 235:

Page 16, line 5, leave out (", the Lord Advocate or the Attorney General") and insert ("or the Lord Advocate").

The noble and learned Lord said: In speaking to this amendment, I shall speak also to Amendments Nos. 238 and 239. In the light of observations which have been made, I do not intend to speak to Amendments Nos. 240 and 241.

These three amendments deal with the provisions of Clause 31(4) and Clause 32. They raise a number of issues relating to the making of a reference to the judicial committee on the question of whether a Bill, or any particular provisions of a Bill, would be within the legislative competence of the parliament. It can be seen from Clause 32(1) that that power is proposed to be given to the Advocate General, who will be a member of the United Kingdom Government, the Lord Advocate, who will be a member of the Scottish executive and the Attorney-General who will also be a Member of the United Kingdom Parliament.

The first question which this amendment addresses is why the reference should be initiated by a Law Officer as opposed to the Secretary of State in relation to the United Kingdom Government or the first minister in relation to the Scottish executive. Clearly, the issue which the judicial committee will require to address will be a question of law. However, the decision as to whether or not to seek such a reference may well have a political element to it. In those circumstances, it is inconceivable that either a Law Officer of the United Kingdom Government or the Lord Advocate, as the Law Officer of the Scottish executive, would initiate such a reference unless he did so on behalf of and with the full consent of the executive members of the executive body of which he was a member.

The second question is why both the Advocate General and the Attorney-General should be given such a right. They will both be members of the same government; namely, the United Kingdom Government. I would like to think that it is inconceivable that one would seek to initiate such a reference if the other was not content that that should happen, and vice versa. That

28 Jul 1998 : Column 1380

is why one of the amendments seeks to delete the Attorney-General from any involvement at that pre-legislative stage.

It is extremely important to bear in mind that such a reference can be made only prior to the Bill becoming an Act of parliament. The suggestion that the Attorney-General, who has responsibilities for England and Wales and, to a limited extent, for Northern Ireland, should have a role to play in initiating such a reference seems somewhat bizarre.

Thirdly, it raises the question as to whether or not the Bill should make it clear whether, in initiating those references, the Lord Advocate, if it be he who initiates a reference, or the Advocate General, if it is he, is acting in the public interest or on behalf of the executive body of which he is a member.

It seems to me to be difficult for the Advocate General and the Lord Advocate both to be acting in the public interest if appearing on different sides of a case. It is not impossible but it is certainly difficult. In all probability, they will be on different sides and they will be arguing the issue of law as to whether or not it falls within the legislative competence of the parliament. That should be done in the name of a Minister rather than a Law Officer.

I raised this matter on the Second Reading and in response the noble and learned Lord the Lord Advocate said:

    "In the exercise of that function the Lord Advocate is acting as a Law Officer, and Law Officers do not act other than in an independent fashion at present. They act independently of the Government. They give independent advice. If they think at any stage that a Minister is about to transgress the proper boundaries of activity, it is the function of the Law Officer to pull back the Minister and to advise him or her accordingly. For the Lord Advocate to have the power to intervene and to refer a Bill independently of the executive is consistent with the actions of the Law Officer".--[Official Report, 18/6/98; col. 1782.]

Therefore, as the noble and learned Lord the Lord Advocate was explaining that provision on Second Reading, he was clearly of the view that that power was to be exercised in the public interest but, as I say, the difficulty that I have is that the Advocate General may be on the other side.

At a recent seminar which I attended, a speech was made on this issue. Views were expressed to a contrary effect. In particular, it was suggested that realistically, there is bound to be a political element in any decision to refer a question to the judicial committee, particularly in the early stages of devolution. Therefore, it will be important to ensure that there is agreement within the United Kingdom Government that such a challenge should be mounted. The speaker therefore envisaged that the Advocate General, in exercising that power, would act only with the agreement of his ministerial colleagues.

Such references are bound to attract a measure of controversy, referring back to what my noble and learned friend Lord Fraser of Carmyllie said a few moments ago. It is not unrealistic to expect that some members of the Scottish parliament may well seek to test, on a fairly regular basis, the limits of the legislative competence. Let us suppose that a Bill gets half way

28 Jul 1998 : Column 1381

through its parliamentary passage and then either the Advocate General, as a member of the British Government, or the Lord Advocate, acting as a Scottish Law Officer, seeks to stop the Bill in its tracks by initiating a reference to the judicial committee and it is argued that the Bill does not fall within that legislative competence, it is not difficult to envisage the political fall-out which that may generate. In those circumstances, I propose Amendments Nos. 235, 238 and 239. I beg to move.

5.30 p.m.

Lord Renton: I find it very difficult to understand what the division of function is to be, not only in relation to Clauses 31 and 32 but also in the general administration of the law and the advising of parliament in Scotland in the years to come. We have great respect for the present Lord Advocate as we have had, if I may say so, for his predecessors in this House in recent years. Indeed, there was even a former Attorney-General present in the Chamber a short while ago, but that is no longer the case.

The Attorney-General normally has jurisdiction only in England and Wales. However, we now have a new person of legal eminence--namely, the Advocate General--as proposed in the Bill. I have looked carefully through the "Notes on Clauses" as well as trying to study the Bill itself, but I am at a loss to understand how the Advocate General is to be appointed and exactly what his functions will be. As a background to these two clauses, it would be most helpful if we could be told what is to be the division of function between these three learned people.

In relation to the particular function in Clause 31 of reference to the judicial committee, I wonder what would happen if the three learned people did not agree with each other. Let us suppose, for example, that two of them say, "Yes, this should be a reference to the judicial committee", but the other one disagrees. What would happen in that event? Indeed, could any one of them use his own initiative, whatever the others might feel, and decide whether to refer the matter to the judicial committee? This is a complex matter on which the noble and learned Lord the Lord Advocate must enlighten the Committee. It will be very difficult for us to understand the position unless he does so.

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