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Baroness Carnegy of Lour: This is clearly one of the complicated mechanisms by which the Government have been obliged to try to develop a workable relationship between the Scots parliament and the Westminster Parliament and the citizens of Scotland and their law.
The effect that this and some other mechanisms will have on people in Scotland as a whole worries me greatly. I was very sorry indeed that I could not stay late enough last night to hear and possibly take part in the debate introduced by the noble and learned Lord, Lord McCluskey. That also concerned the effect on the Scottish public of what may happen as a result of the legal provisions.
The Government must take very seriously the question of how we envisage these provisions working out; how the public will see the kind of situation that will arise; what will be said in the newspapers as a result, and in the parliament, when such matters go wrong. There may be a period of doubt and so on.
In their anxiety to find legal mechanisms, the Government are perhaps forgetting what may happen politically as a result. If people in Scotland begin to lose confidence in the law, particularly the new law that is being established around their parliament, we shall be in very great political trouble, and even civil trouble. People will dislike it very much. They believe that the law operates smoothly and in their interest, and they may begin to suspect that it does not. I hope the Government will examine this matter carefully. One cannot expect an answer now from the noble and learned Lord the Lord Advocate to all the points raised by my noble and learned friend. But will the Government examine the matter before Report, and envisage slightly more the politics that they are proposing?
Lord Hope of Craighead: The problem addressed by this amendment is not entirely new in Europe. This kind of issue arises in Germany. The German constitutional court has to deal with problems of this kind arising in regard to legislation of the Lander. The issue may also arise in Spain, given the systems of devolution that operate there.
I make no comment on the detail of the proposed amendment. However, it would be of some comfort to know whether, in framing the clause as they have, the Government have had regard to the way in which similar problems are dealt with in other countries within Europe. I am certain that we have a lot to learn from the constitutional courts in other countries as to what solutions can be adopted to enable the problem of the retrospective effect of a decision to be addressed. Will the noble and learned Lord the Lord Advocate inform the Committee, either now or by letter, as to whether that research has been done?
5.15 p.m.
Lord Hardie: To deal first with Amendment No. 291P, the Government cannot accept this amendment, or the other amendments in the group. As the noble and learned Lord said, the amendment restricts the power of a court to make an order removing or limiting the retrospective effect of a decision that an Act of the Scottish parliament or an action of the Scottish executive is outwith the competence of those bodies.
The Government do not believe that it is appropriate to specify in the legislation a limitation on the period during which a court may suspend the effect of its decision that a provision is ultra vires. The courts need to have flexibility to tailor their response to the particular circumstance of each case. That is not saying anything very different from what my noble and learned friend Lord McCluskey said many years ago: it is not possible to legislate for every eventuality. But that is not what we are doing. We are not looking at particular cases and saying that the court must take into account A, B, C or D and in other situations must act in a different way. We have provided flexibility. The court will obviously take into account such matters as the fact that someone has acted on the faith of legislation which is ultimately shown to be ultra vires. That would be an important consideration. There may be other considerations which would balance that exercise.
These amendments would leave the court with a restricted power as to what it could do if it decided that legislation was outwith the competence of the parliament or the executive. I invite noble Lords to place their faith in the Scottish courts and courts of the Scottish jurisdiction. They have a very good reputation. I have confidence in them and I hope that your Lordships will also express that confidence by entrusting them with this general power to exercise in accordance with their discretion and taking into account principles to which they will no doubt have regard.
In answer to the point raised by the noble and learned Lord, Lord Hope, I am advised that the drafters of the legislation and the policy makers certainly examined other jurisdictions in coming to this formulation. I am unable to say whether they followed those jurisdictions precisely. If the noble and learned Lord wishes to have further information I am happy to write to him on that matter.
The Government believe it is important for the courts and tribunals to have this power. As I have indicated, the court or tribunal will be declaring invalid legislation which, up to that point, has been considered to be valid, and some people will have acted on the faith of that apparently valid legislation. The power will ensure that the courts can protect those who have acted in good faith on that basis. To seek to limit the courts' discretion in the manner proposed would not be appropriate. It is important that the courts are left to decide how to act on the merits of each particular case.
Turning to Amendments Nos. 291Q, 291R and 291S, as I have indicated, we cannot accept these amendments either. One point I would make in that regard is that they appear to make varying and contradictory provision as to whose interests a court or tribunal should take into
account when considering whether or not to make an order under Clause 93. That contradiction confirms me in my belief that the Bill strikes the right balance. It directs the court to take into account the interests of those parties who would be adversely affected by the decision, but does not limit them to that consideration alone. I think this represents an appropriate balance, and nothing would be gained by making the changes proposed in the amendments. Clearly circumstances will differ from case to case. In some instances it may be only the parties to the proceedings whose interests are substantially affected, but that would be a little surprising. Overall, I think the courts need the flexibility which the Bill provides.In that regard, I anticipate that counsel appearing in the case, whether they are law officers or not, would specifically address the interests of other groups of people who may be affected by this legislation, apart from their own clients, so that the court is fully apprised of the issues in order to enable it to decide the matter properly.
With that explanation, I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, I wonder whether he would address one point. I specifically raised the issue as to whether persons who would be adversely affected might in some way have the right to become involved in the proceedings as parties. I should have pointed out that Amendments Nos. 291R and 291S are clearly alternatives. I have no doubt that, if Amendment No. 219R were agreed to, the noble Baroness the Deputy Chairman would say that she could not call Amendment No. 291S. They are alternatives which illustrate two approaches that might be taken and there was never any intention that they should both go on the face of the Bill.
A more practical issue is what the court is to do if a body of opinion--maybe a very vocal body of opinion in Scotland, such as the CBI or the TUC--says that the interests of their members, who are not parties to the proceedings, will be adversely affected, and their argument runs along certain economic or environmental grounds, contrary to the policy of the Scottish executive, represented in the proceedings by the Lord Advocate. I have some difficulty as to how a Lord Advocate, arguing the case for the Scottish executive, of which he is a full member, and no doubt seeking to do that very effectively and fully, could at the same time perform some kind of amicus curiae role of drawing to the attention of the court the economic, environmental or other interests of third parties when he disagreed with their assessment of their own interests and with the argument that they wished to place before the court.
What troubles me about this provision is whether or not it will allow the possibility of the court's admitting these individuals as parties to the proceedings. If they come into the proceedings at the stage where the court has already decided that the Act of the Scottish parliament is ultra vires, effectively all they are engaged on is a political debate in which they seek to have a discretionary power
exercised in a way which will serve their political interests, whether they be economic, environmental or whatever.It is for that reason that I return to this theme, which I have mentioned once or twice in Committee, as to precisely what interests the Lord Advocate--or the Advocate General in the case of my other amendment--would be representing were he to go into the proceedings not to argue the initial legal issue but, taking that as read, to argue whether or not discretionary powers should be exercised.
Lord Fraser of Carmyllie: My noble and learned friend Lord Mackay, obviously lighter on his feet than I am, got up rather quicker than I did. I wish to raise more or less the same point. What troubles me about the matter is this. In deciding whether to make an order under subsection (3), the court shall,
- "have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected".
- "he may take part as a party in the proceedings so far as they relate to the making of the order".
I assume that in the traditional way, if intimation were made to the Lord Advocate, he would, when he appeared, have regard to what is the public interest. That may be a rather broad but perfectly proper responsibility, but we would have the curious position of having three classes of people: those who are parties and are affected; a group of people who are not parties but who would be adversely affected, who seem to have no right to intervene; and the Lord Advocate, who has a broader public interest, who has the right to intervene. One group is excluded, and I do not follow the logic of that.
I wonder whether it might be more appropriate to follow the line offered by my noble and learned friend Lord Mackay of Drumadoon in his Amendment No. 291R, to remove the provision under which the court shall,
- "have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected",
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