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Lord Mackay of Drumadoon: It may be of assistance if I speak briefly to the amendments in the grouping. I shall refer to my own amendments and one or two others.

I understand the reasoning underlying the amendment in the name of the noble Lord, Lord Selkirk, although I have some practical difficulties with it which the noble and learned Lord the Lord Advocate and I have just discussed. The practical problem of giving intimation to anyone who might be adversely affected by a specific issue would be mind boggling. For example, the idea of intimating some action relating to sheep farming or beef on the bone to every hill farmer in Scotland would be out of the question. While I sympathise with the concept underlying the amendment, there is a practical problem.

Amendment No. 292BA touches on an issue which I raised earlier. I have nothing further to say on that. I believe that the Government are sympathetic to the second part of the amendment relating to "the relevant law officer", since Amendment No. 292BB appears in the name of the noble Lord, Lord Sewel. While I have no objection in principle to the amendment, I have some difficulty in following the qualification set out at paragraph (b) which states:

The fault may be entirely mine but I find it difficult to imagine any decision covered by the provisions of subsection (1) of Clause 93 which would not be a devolution issue within the meaning of paragraph 1 of Schedule 6. Even if there could be such a situation--at present I have some difficulty in understanding it--should not the United Kingdom Government in any event receive intimation of what is going on and have the right to enter the proceedings? If the court is duty bound to have regard to the interests of other parties which might be adversely affected, it seems to me that there should be some force whereby the United Kingdom Government--whether through the Advocate General or by other means--should receive intimation of what may be pronounced by way of an order.

The other amendments in my name are consequential. I speak to them formally.

5.45 p.m.

Lord Hardie: Perhaps I may deal with Amendment No. 292 in the name of the noble Earl, Lord Balfour.

I thank the noble Earl for the amendment, which he intends would clarify the meaning of Clause 93(3). The noble Earl wishes to make it clear that the courts or tribunals must have regard to the extent to which persons who are not parties to the proceedings would otherwise be affected by the court's decision. This is essentially a drafting amendment. We have given it careful consideration but we believe that the intention behind the clause as drafted is clear and we do not consider the amendment necessary although we understand the reasoning behind it.

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In Amendment No. 292A, the noble Lord, Lord Selkirk of Douglas, raises the question of requiring courts to order intimation of intention of an order under Clause 93. To some extent that has been prefaced by the discussion we had on the previous amendment where I confirmed to the noble and learned Lord, Lord Hope of Craighead, that the Bill does not affect the general power of the Court of Session to make rules of procedure with the assistance of the Rules Council. I anticipate, as I have already said, that the Court of Session would make rules to cover, among other things, orders under Clause 93; and would deal with the question of intimation.

The noble Lord's amendment goes too wide for the reasons explained by the noble and learned Lord, Lord Mackay of Drumadoon. It would be impossible to intimate to everyone. But it would be for the court to consider what class or category of people should receive intimation in given situations. It would be equally for counsel involved in the case to draw to the attention of the court that they were aware of a body of interest which was not represented in the proceedings. The court could then consider whether that group of people should be represented. Those are all matters ultimately for the Lord President and the Rules Council.

On Amendments Nos. 292B, 292C, 292D, 292E, 292BA, 292CA, 292DA and 292ZEA, it will be apparent that the Government have sympathy with the amendments and for that reason have brought forward amendments which achieve a similar aim which the Committee has accepted. I hope that it will be helpful if I explain why the Government do not think that the amendments of the noble Earl, Lord Balfour, or the noble and learned Lord, Lord Mackay, are quite right. We do not think it would be appropriate to give intimation to the parliament as the noble Earl provides. We appreciate that intimation will be given to the Welsh assembly. I suspect that that may have provoked the amendment. However, this reflects the different legal entity of the assembly and the parliament.

The amendments tabled by the noble and learned Lord, Lord Mackay, provide for intimation to be given to the Lord Advocate and to the First Minister. It is important that intimation is given to the executive's Law Officer in every case, no matter where the proceedings take place. However, I do not see what is to be gained from extending that requirement to the First Minister. I am sure that the Lord Advocate will advise the First Minister if a relevant case arises and can make such representations to the courts on behalf of the Scottish executive as required.

I turn to government amendments, Amendments Nos. 292BB, 292BC, and 292DB. As I have already indicated this group of government amendments covers much the same ground and ensures that the appropriate Law Officer is given intimation of the fact that a court or tribunal intends to make an order under Clause 93.

In most cases, we would expect that the appropriate Law Officer would have been given sufficient notice under Schedule 6, which requires intimation to be given to the Law Officers.

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However, to answer the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, I anticipate that there may well be cases under Clause 93(1)(b) which do not raise a devolution issue. What is concerned there is the vires of the action of the Scottish executive confirming or approving a provision of subordinate legislation. It may be that a Scottish Minister may have done something under subordinate legislation which would not involve the English Law Officers. That is one example which I can put forward at present. There may be others.

The amendments ensure that the appropriate Law Officers are given intimation where a court is considering making an order under Clause 93. The Lord Advocate, the Law Officer of the Scottish executive, will receive intimation regardless of where proceedings occur, along with the appropriate UK Law Officer. For proceedings in Scotland, the intimation would be given to the Advocate General; but for proceedings in England and Wales, the Attorney-General, and in Northern Ireland, the Attorney-General for Northern Ireland, would be appropriate Ministers.

In answer to the point made by the noble Earl, there are currently four law officers; the Attorney-General and Solicitor-General affect England, Wales and Northern Ireland and the Lord Advocate and Solicitor-General for Scotland affect Scotland. After devolution, in Scotland there will be the Lord Advocate and Solicitor-General for Scotland while in UK Westminster terms there will still be the Attorney-General and the Solicitor-General. However, there will also be the Advocate General who will have responsibilities for Scottish matters in the UK context.

The Earl of Balfour: I beg leave to withdraw Amendment No. 292.

Amendment, by leave, withdrawn.

Lord Selkirk of Douglas had given notice of his intention to move Amendment No. 292A:

Page 44, line 10, after second ("to") insert ("any person adversely affected in terms of subsection (3) above and to").

The noble Lord said: I am grateful to the noble and learned Lord the Lord Advocate for his reply. I shall be pleased if he can follow up with the Lord President the matter regarding the rules of court.

[Amendment No. 292A not moved.]

[Amendment No. 292B not moved.]

The Deputy Chairman of Committees (The Viscount of Oxfuird): I must advise the Committee that should Amendment No. 292BA be agreed to I cannot call Amendment No. 292BB due to pre-emption.

Lord Mackay of Drumadoon had given notice of his intention to move Amendment No. 292BA:

Page 44, line 11, leave out ("Lord Advocate unless he") and insert ("First Minister and the relevant law officer unless either of them").

The noble and learned Lord said: I do not intend to insist on the amendment. However, I should be grateful if the noble and learned Lord the Lord Advocate could write to me about the point I raised in connection with

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Amendment No. 292BB. I have some difficulty in following the position, but the fault may be entirely mine.

If the noble and learned Lord's example is correct it would seem to follow that the effect of Clause 93 is changing the law of Scotland even when a member of the Scottish executive is not concerned with an Act which falls within his devolved competence but is involved with an issue which may be in a wider form of competence. That is a difficult and tricky issue. I did not follow precisely what was said and if, following further reflection, more can be said before Report I should be grateful.

[Amendment No. 292BA not moved.]

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