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Lord Hardie moved Amendments Nos. 292BB and 292BC:
On Question, amendments agreed to.
[Amendments Nos. 292C to 292DA not moved.]
Lord Hardie moved Amendment No. 292DB:
On Question, amendment agreed to.
[Amendments Nos. 292E and 292ZEA not moved.]
Lord Mackay of Drumadoon moved Amendment No. 292YEA:
The noble and learned Lord said: The amendment touches on an issue we have already discussed. My purpose in bringing it forward is that it seeks to establish that the provisions of subsections (4) and (5) do not give a right to any party to enter proceedings and that that is accepted by the Government against the background that it leaves the Court of Session whether by rule of court or otherwise to admit such an individual as a party. If that could be clearly stated at the Dispatch Box it would
Lord Hardie: As already explained, I confirm that the provision does not give parties a right to appear. As regards putting it in the Bill, it is a drafting matter to which we can give thought and come back if necessary.
Lord Mackay of Drumadoon: On the basis that my drafting might be improved upon, I am happy to leave the noble and learned Lord to reflect on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 93, as amended, agreed to.
Lord Mackay of Drumadoon moved Amendment No. 292XEA:
Page 44, line 11, leave out from ("Advocate") to ("the") in line 12 and insert ("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").
Page 44, leave out line 14 and insert ("A person to whom intimation is given under subsection (4)").
Page 44, line 20, at end insert ("and "the appropriate law officer" means--
(a) in relation to proceedings in Scotland, the Advocate General,
(b) in relation to proceedings in England and Wales, the Attorney General,
(c) in relation to proceedings in Northern Ireland, the Attorney General for Northern Ireland.").
Page 44, line 20, at end insert--
("( ) Apart from the provisions of subsections (4) and (5), this section shall not be construed as giving to any person a right to take part as a party in any proceedings to which this section applies, if that person would not otherwise be entitled or permitted to do so.").
After Clause 93, insert the following new clause--
(" . The provisions of this Act shall have no effect on the existence or extent of the supervisory jurisdiction of the Court of Session as it exists on the day when sections 91 and 93 of this Act come into force.").
The noble and learned Lord said: We have touched on this issue and it has been indicated that nothing in the Bill is intended to interfere in any way with the existence or extent of the supervisory jurisdiction of the Court of Session. If that can be unequivocally stated I shall withdraw the amendment. I beg to move.
Lord Hardie: The Bill enables references of devolution issues to be made by the law officers directly to the Judicial Committee of the Privy Council. It enables the Judicial Committee to deal with other references of appeals to it. Subject to that exception, the Bill does not affect or extend the jurisdiction of the Court of Session.
The Court of Session will retain its supervisory jurisdiction to review decisions and administrative actions. The devolved administration will be subject to the jurisdiction. If, however, devolution issues arise in the exercise of the jurisdiction, the court will need to comply with the special procedures in Schedule 6.
If one is talking about the supervisory jurisdiction in the context of judicial review and administrative acts the short answer is that the Bill does not affect the exclusive jurisdiction of the Court of Session in that regard. However, if one goes wider and goes into devolution issues it will be apparent that other courts can deal with devolution issues at first instance.
Lord Renton: I would have thought that the very explanation that the noble and learned Lord has given indicates the desirability of the removal of any possible doubt. He used the word "if" rather a lot in the course of his explanation. Whether or not we use the exact words in the amendment, I believe that the removal of doubt as regards the jurisdiction of the Court of Session is essential in the complex provisions of the Bill.
Lord Hardie: I am sorry. I was trying to shorten the position. Perhaps I may explain it more fully. The
Subject to the parliament's power to legislate, the Bill is not intended to affect either the existence or the extent of the Court of Session's supervisory jurisdiction. The Court of Session will retain its jurisdiction to review decisions and administrative actions, and the devolved administration will be subject to that jurisdiction. If devolution issues arise in the exercise of the court's jurisdiction, as opposed to a review of administrative actions of the executive, it will have to comply with the provisions and procedures of this Bill.
Schedule 6 and Clauses 91 and 93 explain how such issues should be dealt with and confer a new power on the court to vary or limit any retrospective effect. We have discussed that earlier today. The Bill enables references of devolution issues to be made by the Law Officers directly to the Judicial Committee, and to deal with other references and appeals. Subject to that exception, the Bill does not affect or extend the jurisdiction of the court in relation to particular types of proceedings.
I hope that that is a fuller explanation which will satisfy the noble Lord. I apologise for trying to cut matters short.
6 p.m.
Lord Renton: Dare I suggest that it would be a useful precaution if we started off an amendment on these lines with the words,
- "Subject to the provisions of this Act"?
Lord Hardie: I am very reluctant to draft legislation in the Chamber. I appreciate and recognise the expertise of the noble Lord over a considerable number of years in dealing with such matters. With respect, it would not be appropriate for me to seek to draft legislation here and now.
Lord Hope of Craighead: Before the noble and learned Lord sits down--I do not want to indulge in drafting either--one point that he might like to bear in mind when he considers the point is that there may be some areas in respect of which the Scottish parliament might wish to examine the extent of the supervisory jurisdiction. One example is awards by arbitrators, which at present are subject to the
supervisory jurisdiction. There are some people who think that that is undesirable, given the need for finality in arbitration awards. That would fall within the scope of the Scottish parliament unless otherwise excluded by the Bill. I would prefer that the Bill would leave the matter open for consideration by the Scottish parliament.
Lord Mackay of Drumadoon: Perhaps I may indicate for the purpose of making speed that, as the noble and learned Lord will recall from the debate on Tuesday night or Wednesday morning, this issue was one which was raised by me and a number of members of faculty in Edinburgh because of a genuine uncertainty on their part as to what the position will be. I understand that the noble and learned Lord has explained to us that, subject to the provisions which would require devolution issues to be referred or appealed to the Judicial Committee--which are procedural aspects of dealing with devolution issues--the terms of this Bill do not in any way affect either the existence or the extent of the supervisory jurisdiction.
Beyond that, among the matters being devolved to the Scottish parliament is a legal or legislative competence, if so advised, to enact legislation--presumably primary legislation, but not necessarily--which might amend the extent of the supervisory jurisdiction or, indeed, the courts in which the issues could be raised if it were taken away in part from the Court of Session. On both the substantive and procedural matters the Scottish parliament would have the competence. Whether it acted in accordance with the suggestion of the noble and learned Lord, Lord Hope, and restricted the extent might be a matter for discussion. Equally there might be other areas where it would be sensible to broaden, modify or amend it in some way.
In the light of the discussion this afternoon, I will do two things. First, with the assistance of my noble friend Lord Renton, I will reflect whether a more happily framed amendment could be tabled on Report. Secondly, I would intend to discuss the matter with those who raised this concern with me in anticipation of the Committee Stage debate. I have little doubt that the noble and learned Lord the Lord Advocate and his officials--and, more importantly, his draftsmen--will consider whether there might be some scope for an amendment which could remove any doubt. On that basis, I beg leave to withdraw Amendment No. 292XEA.
Amendment, by leave, withdrawn.
Clause 94 [The Judicial Committee]:
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