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Lord Hardie: I understand the concerns that have been addressed. We have to some extent also touched upon a later amendment, Amendment No. 292YEA, and when we come to that amendment perhaps some of what I say now will be taken as dealing with that.

I think there may be a fundamental misunderstanding here as to the purpose of Clause 93 or the stage at which we get to that provision. A Clause 93 order arises only where the court has already decided that something is ultra vires, as one sees in Clause 93(1)(a), and the orders under Clause 93(2) and following go on from there. The question

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as to whether the Act is ultra vires is a matter where the interests would lie with the Lord Advocate or the Advocate General or the parties to the proceedings. The interests in relation to the vires issue would not lie with third parties who may be affected by the order. In that situation, the Lord Advocate and the Advocate General would both be acting for their respective executives but would also be acting and putting forward arguments--at least, as far as the Lord Advocate is concerned--as to where the public interest lay in Scotland. It would not be appropriate to have third parties in the proceedings until that point.

In deciding whether to make an order under Clause 93(2), the court will have to consider the interests of the parties to the proceedings, and, if the Lord Advocate has not thus far been a party to the proceedings, which is difficult to imagine, he will be given intimation to make representations.

What I would imagine would happen at that stage is that the Lord Advocate, and indeed counsel, in the best tradition of the Faculty of Advocates, would advise the court that not only were there interests that were being specifically addressed in the case but that there was a body of interests, such as the CBI--if that body had been vociferous and quite properly drawn the matter to the attention of the executive--which was claiming to be interested in the outcome of any order that the court may ultimately make. In that situation, if the court wished to have further information about that particular interest, it could afford a third party the opportunity of being heard on the question of whether the order ought to be suspended, although it would not have a title of interest to come into the litigation. I believe that under the rules of court that would be possible. I am pleased to see that the noble and learned Lord, Lord Hope of Craighead, nods his head.

I fully understand the fears of noble and learned Lords, but they may arise because of a misunderstanding about how the procedure under this provision works. With that explanation, I invite the noble and learned Lord to withdraw his amendment.

5.30 p.m.

Lord Hope of Craighead: Before the noble and learned Lord sits down, perhaps I may pick up the point that he has just made. The provision makes no reference to the rule-making power of the court under the Court of Session Act, but I hope I am right in saying that the power of the court under that Act to make rules for all of the procedures before the court, in particular rules about intimation to parties, is not removed in any way by this Bill and the Bill assumes that the court, once the Act has been passed, will undertake its responsibility with the assistance of the Rules Council to make appropriate rules to enable the procedures to work.

Lord Hardie: I can give the noble and learned Lord that assurance. The Bill does not interfere with the administration of the courts as it is currently; nor does it remove any rule-making power available to the court. I anticipate that there are bound to be additional rules following this legislation.

Lord Mackay of Drumadoon: One can never be sure whether one is under a misunderstanding. That is the very

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nature of the beast. I believe that I now understand the approach. For once I may have got it right. I fully accept that it is a two-stage process. The Lord Advocate may be involved in the first stage because he will be given intimation of a devolution issue. If for any reason he fails to become involved then at the second stage his role will be confined to that described by the noble and learned Lord the Lord Advocate.

As I understand the reply to my supplementary request for information, the underlying policy of the Bill is that it is for the court to decide whether any person's interest has been adversely affected in terms of Clause 93(3) on a case-by-case basis or in accordance with rules of court, which the court can make, as to whether or not such a person can enter into the proceedings. The Government admit the possibility of that happening. Notwithstanding the considerable confidence that I have in both the High Court and shrieval benches in Scotland, if it is competent for such parties to come in, I am concerned that the court will become very much involved in political arguments.

The purpose of these amendments is to clarify the Government's policy on this and one or two other matters. That has been helpfully done in the responses that I have received. This is a matter that I wish to reflect upon. Like the previous group of amendments, I believe that this is a matter to which I shall return in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 291Q to 291S not moved.]

The Earl of Balfour moved Amendment No. 292:

Page 44, line 8, at end insert ("by the decision").

The noble Earl said: Looking at the 19 amendments to Clause 93 (powers of courts or tribunals to vary retrospective decisions), it is clear to me that the original drafting has not been satisfactory and that the Government have had second thoughts. I can take some comfort from the fact that as a hereditary Peer my amendments were tabled before anybody else's, yet the Government wish to get rid of us. Whilst I am happy to bow to the amendments tabled by the noble Lord, Lord Sewel, I ask him to consider Amendment No. 292 which seeks to add to the end of subsection (3) the words "by the decision". As drafted the provision reads:

    "persons who are not parties to the proceedings would otherwise be adversely affected".
By what?

I read subsection (4) as if Amendment No. 292BB tabled by the noble Lord, Lord Sewel, had been inserted. I hope I am correct. It reads:

    "Where a court or tribunal is considering whether to make an order under this section,

    (a) it shall order intimation of that fact to be given to the Lord Advocate, and

    (b) the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6),

    unless the person to whom the intimation would be given is a party to the proceedings".

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Surely, in subsection (4) the person in this case can be only either the Lord Advocate or the appropriate law officer. I thought that in England and Wales there were, or are, two law officers: the Attorney-General and the Solicitor-General. In future is there to be only one to deal with Scotland: the Attorney-General?

The noble and learned Lord, Lord Hope of Craighead, pointed out at an earlier stage of this Bill that there was no time limit in Clause 93; nor did there appear to be any compensation provisions for any person adversely affected by the retrospective decision of a court or a tribunal. I consider that to be unfair. I support Amendment No. 292A tabled by my noble friend Lord Selkirk, although I do not believe that it goes far enough in dealing with retrospective decisions. I beg to move.

Lord Selkirk of Douglas: I rise to speak to Amendment No. 292A. I put this forward on behalf of the Law Society of Scotland. When the Government make such an order the Lord Advocate will receive notification, but it is also important that anybody who is likely to be adversely affected by any possible decision is informed. For example, Parliament deals with a wide variety of laws and plans. Plans to be made by citizens are based very much on the present law as it is declared by Parliament. If the Scottish parliament wishes to effect something within the United Kingdom's jurisdiction the court may find that such a provision is outwith the parliament's vires and make an order which removes or limits the effect of the decision of the Scottish parliament. Here there is surely a case for the court to intimate an interest not only to the Lord Advocate but to any other party who is likely to be adversely affected.

Amendment No. 292YEA in the name of my noble and learned friend Lord Mackay of Drumadoon would limit the effect of the amendment to persons who have a right to take part in the proceedings. I should be content with that limitation.

The purpose of tabling the amendment is not to concentrate on specific drafting but to deal with the principle: that groups of people are likely to be adversely affected. What rights, safeguards and protections are they to have? I invite the noble and learned Lord the Lord Advocate to address that point rather than the details of my amendment.

My noble and learned friend Lord Fraser of Carmyllie raised a valid and legitimate matter when he said that public interest is of great importance. How is it to be safeguarded when groups of people are likely to be adversely affected? I recognise the reality that rules of court could cover the issue. However, there is no requirement in the Bill, and I invite the Lord Advocate to discuss this matter between now and Report stage with the Lord President of the Court of Session. The Bill is far too vague when it deals with people and groups who are likely to be adversely affected. There is a gap. It is an issue that requires to be resolved. I hope

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that the noble and learned Lord the Lord Advocate will feel able to consider the issue further before Report stage.

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