| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Mackay of Drumadoon: As I was saying, I am now furnished with the copies of the drafts of a variety of rules and Acts of sederunt which may helpfully inform not only myself but others at later stages of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments No. 291GH to 291GKB not moved.]
Lord Mackay of Drumadoon moved Amendment No. 291GL:
The noble and learned Lord said: This amendment and the other amendments grouped with it are merely drafting amendments which seek to expand on the provisions of paragraph 4(2) of Schedule 6. That provides that the Lord Advocate may defend any proceedings for the determination of a devolution issue instituted by the Advocate General. But, curiously, there is no corresponding provision dealing with the Advocate General's position at that stage. They may be purely technical drafting points but it seems to me to be curious that a provision is made for defending some proceedings but not for others. That is the sole purpose of these small drafting amendments. I beg to move.
Lord Renton: I find some difficulty about this because on page 84 the Bill states that:
Lord Mackay of Drumadoon: I am happy to say that any future Lord Advocate must confine himself to having one personality. At some date between now and the Scottish parliament becoming operational, the Lord Advocate will cease to be a Minister of the Crown and will become a member of the Scottish executive even though he is exactly the same person one day as he is the next. Although he will be the public prosecutor in Scotland and will have full membership of the Scottish executive, he will cease to be a Minister of the Crown and, as such, will cease to be answerable to this Parliament in respect of any of his functions, even though he remains a member of the parliament.
Lord Renton: I am grateful to my noble and learned friend for that explanation. I must apologise to the Committee for not refreshing my memory, which has been tarnished since we first considered this matter in the summer.
Lord Hardie: These amendments are thought to be unnecessary. Paragraphs 4, 15 and 25 of Schedule 6 are primarily intended to ensure that the relevant Law Officers have title and interest to institute proceedings for the determination of a devolution issue. Without such a provision, there could be considerable doubt whether the Lord Advocate would have sufficient title and interest to bring proceedings.
There is no similar doubt in the case of those against whom the proceedings may be brought. The persons against whom proceedings are brought will depend on the facts and circumstances of each case. Where, for example, the Advocate General raises proceedings against Scottish ministers, it will be possible for such proceedings to be raised against them in their own name or for the Lord Advocate to represent them in accordance with the Crown Suits (Scotland) Act 1856
How Ministers of the Crown or government departments in the United Kingdom are sued is a matter which is determined primarily by Section 17 of the Crown Proceedings Act 1947.
As can be seen, it is unnecessary to have any special provision as to how a member of the Scottish executive or a Minister of the Crown may be sued. That is why it is stated in Paragraphs 4, 15 and 25. Each of those paragraphs is without prejudice to any power to institute or defend proceedings exercisable by any other person. The provisions do not therefore cut across any other arrangements for initiating or defending actions on behalf of the Scottish executive or UK Government.
Lord Mackay of Drumadoon: I am sure that the explanation of the noble and learned Lord the Lord Advocate will be more than sufficient clarification if any doubt arises in the future. On that basis I withdraw Amendment No. 291GL and I shall not be moving the subsequent amendments in the group.
Amendment, by leave, withdrawn.
[Amendment No. 219GM not moved.]
Lord Hardie moved Amendment No. 291GMA:
The noble and learned Lord said: In moving Amendment No. 291GMA, I shall speak also to Amendment No. 291GMB. These amendments are technical amendments to provide flexibility. They simply require intimation of a devolution issue to be given to the Advocate General and to the Lord Advocate without the restriction that this should be done in pursuance of a court order; for example, the relevant intimation could be given by a party under the rules of court. I beg to move.
Lord Mackay of Drumadoon: Perhaps I may ask the noble and learned Lord to clarify one matter. Would this amendment, which I did not initially understand, although I now see the force of it, still have in mind the policy that the intimation should be given by a party and not by the court or tribunal itself?
Lord Hardie: Yes, that would be the position. It may be under an order of the court.
On Question, amendment agreed to.
Lord Hardie moved Amendment No. 291GMB:
On Question, amendment agreed to.
[Amendments Nos. 291GN to 291GR not moved.]
Lord Mackay of Drumadoon moved Amendment No. 291H:
The noble and learned Lord said: This short amendment raises the issue of whether any party to legal proceedings should be entitled as a matter of right to require a court or tribunal to do a particular thing and to follow a particular course of action. This arises in paragraph 33 of the schedule which provides that one of the four law officers mentioned,
It seems to me that two issues arise: first, whether any party, even as important a party as a Lord Advocate, should have the right to require a court to act in such a manner; and, secondly, if the law officer is a party to the proceedings with other parties, whether it complies with convention rights to give him a right to require the court to act in a particular manner which the other party or parties to the litigation would not have? There would seem to be an element of discrimination which would be eliminated if the Bill was amended in the way I propose. That presumably would give every party the right to request the court or tribunal to refer to the Judicial Committee. In practical terms that may be quite important. matter. If devolution issues are raised in comparatively small proceedings--and by that I mean proceedings of small monetary value in the lower courts--the last thing on earth the lay parties may want is to become involved in proceedings in front of the Judicial Committee where the costs involved might be out of proportion to the specific sum of money at stake. I beg to move.
Lord Hardie: The noble and learned Lord has properly pointed out the effect of substituting a request for a requirement in the sense that the appropriate law officer--not just the Lord Advocate but the Advocate General or the Attorney General for Northern Ireland--could only request a court to refer a matter where a devolution issue had arisen.
We feel that there should be the power to require an inferior court to refer such an issue to the Judicial Committee. No doubt a court or tribunal would pay careful heed to a request by any law officer, whether it was the Lord Advocate or one of the others. But the provision in the Bill puts beyond doubt that a devolution issue must be referred to the Judicial Committee of the Privy Council if a law officer requires it. This is to provide a fast-track procedure to ensure that a devolution issue will be referred to the Judicial Committee where a law officer considers that it is important to do so. The present position is clearly desirable to ensure, among other things, consistency of decisions. It is possible that in different courts throughout Scotland, and perhaps even in England, a similar issue will be considered by different inferior courts. If that were known to the law officer, it would be inappropriate to end up with the possibility of having umpteen different decisions.
In that situation it is clearly important to obtain an authoritative ruling. The law officers would wish to refer the matter to the Judicial Committee. If the option
Page 84, line 42, at end insert--
("( ) The Lord Advocate may defend on behalf of the Scottish Executive any such proceedings instituted against a member of the Scottish Executive.").
"The Lord Advocate may defend any such proceedings instituted by the Advocate General".
My noble friend's Amendment No. 291GL makes it clear that the Advocate General may be acting on behalf of a Minister of the Crown. The Lord Advocate is a Minister of the Crown, is he not? He is at the moment. Is he to have a dual personality?
Page 85, line 2, leave out from beginning to ("intimation").
Page 85, line 3, leave out ("it to") and insert ("a court or tribunal shall").
Page 88, line 3, leave out ("require") and insert ("request").
"may require any court or tribunal to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he is a party".
Next Section
Back to Table of Contents
Lords Hansard Home Page