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Lord Mackay of Drumadoon moved Amendment No. 292EA:

Page 44, line 23, at end insert ("or the House of Lords)").

The noble and learned Lord said: In moving this amendment, I will speak also to Amendments Nos. 292EB and 292EC. I do not intend to speak to Amendment No. 292ED.

The first of these amendments raises a very important constitutional principle of whether the Appellate Committee of your Lordships' House should be bound

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by a decision of the Judicial Committee of the Privy Council on devolution issues. In the light of the observations made earlier in our debate this afternoon that the whole issue of the procedures set out in Schedule 6 is to be discussed further on Report, and in the light of the observations of the two noble and learned Lords who intervened, I raise this as an important issue. Whether or not the Government wish to give an answer today, I would certainly wish to have an answer or a comment from them before the Bill becomes law.

The second amendment raises a more practical issue. I am happy to see in the Committee noble and learned Lords who have sat on the Judicial Committee and who may have a contribution to make to this. As I understand it, the procedure which the Judicial Committee follows in the judicial business it has to deal with, is regulated to some extent by Orders in Council and, in other respects, by informal practice notes. The normal practice and convention, as I understand it, is that, if the members of the committee who hear a case are unanimous in the view as to how the case should be disposed of, the advice of the board which is tendered to Her Majesty is drafted by one of its number, and there is only one opinion for any lawyer interested in why the decision was reached to have regard to.

My understanding is that since 1966 it has been competent for members of the committee who disagree with the majority to issue their own opinion, setting out--whether in short or longer form--why they so disagree. I also understand that since some date in the 1970s--unfortunately I have been unable to obtain a copy of the relevant practice note--there is a procedure by which a member of the committee who agrees with the majority in the result of the case but disagrees with some legal decision which may have arisen in the course of the argument can in those exceptional circumstances set forth his own opinion. I note a measure of surprise on the face of the noble and learned Lord, Lord Hope, who has obviously not seen this practice note either.

I raise this for the very practical purpose that, if we are to move into the field of having important devolution issues considered by, presumably, five members of the Judicial Committee, it is very important that they should be free to issue their individual opinions on a case so that the law can develop. Undoubtedly the development of both civil and criminal law in the United Kingdom has been helped by the fact that in important cases which come before the Appellate Committee of your Lordships' House--even if the members of the Appellate Committee are united in their view as to how the case should be decided--the members write their individual speeches. The law is enriched because it enables lawyers to pick up ideas, float them out and develop them further in subsequent cases. It would be very unfortunate indeed if a similar practice was not followed by the Judicial Committee. That is what lies behind Amendment No. 292EB.

I fully accept that it would not be for this House in any way to dictate how the Judicial Committee should go about its business but I would hope that in raising

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this issue we might at least have an undertaking from the Government that in the framing of the Order in Council some consideration would be given to this issue before the matter was placed before Her Majesty in Council. A quick glance through the draft that is available suggests that it has not yet been addressed.

Finally, Amendment No. 292EC raises a practical issue which arises from time to time. Sometimes, in the course of legal argument, counsel rightly or wrongly make concessions, whether voluntarily or in response to questioning from one or more members of the Bench. The court's decision thereafter proceeds on the basis that such a concession has been made. If the matter has gone up to the Judicial Committee and the case has been decided, among other things, on the basis of a legal concession having been made, there may be scope for an argument that it would be wrong to bind every other court in a subsequent case where a similar legal concession had not been made, because it would inevitably mean that, even if all the parties concerned were agreed that the matter ought to be looked at afresh in the lower courts, that could not happen and the matter would have to go to the Judicial Committee, possibly with unnecessary expense for all concerned. That is a further practical issue which I raise in the third amendment. I beg to move.

Lord Hope of Craighead: As a serving member of the Judicial Committee, perhaps I may make two observations. The first is in regard to Amendment No. 292ED. This is a matter on which I would suggest that members of the Judicial Committee would wish to express views in the framing of appropriate rules or orders. For my part, I would prefer that the matter was not addressed directly in legislation but was dealt with by means of orders. Another advantage is that it would give some room for flexibility as experience develops in the course of the working out of the new jurisdiction. As for decisions which proceed upon a concession, I should have thought that there was ample jurisprudence to show that, when any court is aware that a previous decision has proceeded on a concession, it removes its effect as a binding authority and is regarded as subject to review in the light of that known fact.

6.15 p.m.

Lord Wilberforce: The noble and learned Lord has raised three quite separate points. To my mind, by far the most important is the first amendment, Amendment No. 292EA, which inserts the words, "or the House of Lords". That brings us into a difficult area arising from the fact that it has been decided to have two separate courts in this country--the House of Lords, which is still to remain the supreme court for the United Kingdom, and this separate ad hoc or fluctuating court, the Judicial Committee of the Privy Council, to decide devolution issues. Therefore, one has to face the difficult question: which is to have priority, one over the other?

If the devolution court, if I may call it that, were to be a fully accepted constitutional court in the style of the German constitutional court or the Italian constitutional court, or, for that matter, the Supreme Court of the United States, I should have no hesitation in accepting

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a proposition that decisions of that court should have priority over and be binding on all other courts. But I find a much greater difficulty with the present rather untidy set-up of the two courts, with no great definition of the dividing line between them.

There are difficulties either way. In favour of the amendment to insert the words "or the House of Lords" is the undoubted proposition, which is a strong one, that, so long as the United Kingdom is entire and not divided, the supreme court is and should remain the House of Lords in this country. For my part I should be very unhappy in departing from that in favour of allowing priority to another court, even in such important matters as devolution and even though, in practice, that other court--the Judicial Committee--will no doubt be equipped with high grade judges, possibly the same persons in practice as will sit in the House of Lords. Nevertheless, in my mind, I am greatly impressed by the constitutional importance of retaining the ultimate superiority of the House of Lords.

On the other hand, one gets into great difficulties when one looks at the set-up by which decisions or issues are referred to the Judicial Committee on the way up. In Schedule 6 there are elaborate provisions providing for references to the Judicial Committee by lower courts--for example, by the Inner House in Scotland or by the Court of Appeal in this country--during the course of the proceedings. One may have this situation. A case comes up with, assuming it is a civil case, no limitation on the right of appeal. It comes to the Court of Appeal in England. It decides to refer the matter--a devolution issue--to the Judicial Committee, which gives a ruling. There is then an appeal, as of course there can be as of right, to the House of Lords. The same may happen in Scotland in a civil matter. The House of Lords is clearly entitled to over-rule a decision of the lower court. But is it bound by the decision of the Judicial Committee given at an intermediate stage? That is very difficult. On the other hand, if the Judicial Committee has given a ruling, is it acceptable that the House of Lords should then be entitled to take a different view? There are difficulties both ways.

One has also to bear in mind Schedule 6(32) which states that the House of Lords, in a case before it, may decide a devolution issue if it thinks it appropriate in the circumstances but otherwise shall refer it to the Judicial Committee. There is a flexible and rather fuzzy compromise between the superiority of the two courts. I am very unhappy about this. I am impressed by the argument of the noble and learned Lord, Lord Mackay of Drumadoon, and by the constitutional position. I am reluctant to see anything inserted into an Act of Parliament which provides that our supreme court in this country is bound by decisions of another court. On the other hand, I see the practical objections in relation to the set-up which we at present have under Schedule 6.

One has to consider a minor point. What is meant by the words in Clause 94,

    "shall be binding in all legal proceedings"?
Does it mean that it is binding inter-parties--between the parties--or is it binding as a matter of jurisprudence? Therefore, is it to be a binding authority

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in future cases? The House of Lords has never accepted that decisions of the Judicial Committee of the Privy Council, however eminent and important, are binding on it. It no doubt defers to them; it gives them respect; it follows them when necessary; but it has always reserved the position that decisions of the Judicial Committee are not binding on the House of Lords.

That is a minor point, possibly of drafting. I prefer to rest on the main constitutional question, which I believe this House has to face, although possibly not today, of whether it is acceptable that decisions of the Judicial Committee shall be binding even inter-parties on the House of Lords.

As the noble and learned Lord raised three questions together, perhaps I may speak also to Amendment No. 292EB, which concerns separate opinions. As the noble and learned Lord stated, under the existing practice, as laid down by Order in Council in 1966, dissenting opinions are allowed.

This provision was inserted, changing the practice of very many years at the instance of Commonwealth judges--mainly, I think, Sir Garfield Barwick from Australia, a very strong-minded and important judge. It was necessary to give Commonwealth judges a chance to expound their point of view. That was inserted in the practice and it is the practice at the present time, so that from that point of view the amendment might be said to be unnecessary. However, one still has to face the question: is it right or is it not? I find that a question of great difficulty. Again of course, it can be said that it is very nice to have a rich division of opinion. It is helpful in future cases and also helpful in jurisprudence and it helps to develop the law.

That I would accept entirely in cases of ordinary civil litigation, or even perhaps in criminal litigation. It is desirous very often to have the other point of view put forward so that legislators may have an opportunity of seeing what the arguments are. But now we are faced with a very different situation. We are faced with intensely political issues, and they may get more political as we go on. Is it desirable--I just ask this question rhetorically--that we should allow members of the Judicial Committee of the Privy Council to express dissenting views? You may then have a division on party lines. You may have a tendency for judges who are known to be intense devolutionists to be appointed to sit on the court or, conversely, judges who are known to be in favour of the unity of the United Kingdom to sit on the court. You may at any rate have disputes and recriminations and more politicisation of what ought to be a purely judicial process.

I do not know what the answer is. I shall be very glad to hear what the noble and learned Lord says about it, but I just wanted to make the point that it is by no means easy to decide, as the amendment suggests to us, that it is a good thing to have dissenting opinions. From one point of view it is and from another point of view it is not. If you want to stir up and allow controversy and have more transparency, more argument in the open, then by all means let us have it. If you want to keep the peace and have a rational and gentle progress towards devolution in a peaceful way, then I suggest that not

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only should the amendment not be allowed but that something should be inserted positively to say that dissenting opinions are not to be permitted, as they would be if nothing were done.

Perhaps the suggestion of the noble and learned Lord, Lord Hope of Craighead, is the best solution in the end: leave it to the Judicial Committee itself to decide and to frame its own rules. It is perhaps rather ducking the issue, but from a practical point of view at this stage it may be the best solution and I would not be opposed to it. I just wanted to give some arguments which might indicate that the noble and learned Lord's amendment is not all that easy.

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