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Lord Fraser of Carmyllie: My Lords, I am grateful to the noble and learned Lord the Lord Advocate for his explanation. When I looked at Schedule 8, I thought that the matter had already been dealt with pretty comprehensively, if somewhat obscurely. The noble and learned Lord mentioned the Crown Proceedings Act and the Crown Suits Act, both of which are to be modified by Schedule 8. Do I understand from his explanation that the Government are now so concerned that the Bill brings about such an attack on the concept of the indivisibility of the Crown that something more substantial is taking place here, or is this just a matter of procedural adjustment to ensure that the Lord Advocate in one capacity does not decide to sue himself in another capacity, which is what I thought that Schedule 8 was trying to avoid? Therefore, when the Westminster Government wish to take legal proceedings

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against the Scottish executive they get the Advocate General for Scotland to raise such proceedings. I am anxious to discover whether the noble and learned Lord the Lord Advocate, in his fairly brief speech in support of this amendment, was indicating that something more fundamental is being adjusted in the Bill, and whether there is a matter at which, in future, constitutional lawyers ought to look with a great degree of interest with regard to the constitutional principle of the indivisibility of the Crown.

Baroness Carnegy of Lour: My Lords, it is difficult for a lay person to understand this amendment. I received it only on Saturday. It was posted on Friday. I had to be here on Monday. This makes it difficult for Back-Bench Peers to examine what are clearly very important amendments. However, I may misunderstand it. I hope that the noble and learned Lord will forgive me if I appear to be asking a stupid question. It seems that the Crown can now have two entities. There is the,

    "Crown in right of Her Majesty's Government in the United Kingdom",
as expressed in subsection (1) of the new clause, and there is the,

    "Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment".
Does that mean that when the Crown gives Royal Assent to Bills the Queen is doing so in a different legal capacity in the Scottish parliament from that which she has when she gives assent to Bills in the United Kingdom Parliament? It sounds as though she now has two entities. Does that affect her capacity when giving Royal Assent?

Lord Mackay of Drumadoon: My Lords, I am not in the favoured position of my noble friend Lady Carnegy. Undoubtedly my copy of the amendments was posted on Friday, but they had not reached me this morning when I left. I saw this amendment for the first time when I arrived today. As my noble and learned friend Lord Fraser suggested, at first blush it is a somewhat unusual amendment although, having listened to what the noble and learned Lord the Lord Advocate said, I can well understand why the view is taken that it is necessary. For that reason I do not oppose the principle of the amendment. But I believe it right that the Government should be aware that it will be necessary to look at the detail over the next few days to see whether what is now brought forward very much at the eleventh hour concerning a fundamental issue will give trouble not only to those of us who sit on these Benches, but also, and more importantly, to those who will have to adjudicate between the Crown in one capacity and in another.

Lord Hardie: My Lords, perhaps I may deal with the point raised by the noble Baroness, Lady Carnegy of Lour. The Queen is not acting in a different capacity when she gives Royal Assent. I referred to the doctrine of indivisibility of the Crown. Normally one cannot sue the Crown. But because there are different legislatures and executives exercising different functions, and because the Scottish executive or administration may

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well wish to enter into contracts or other arrangements, for the transfer of property or whatever, with the United Kingdom Government, it may wish to enforce them. I hope that this difficulty will not arise. But if there were a difficulty between the two parties, this amendment would enable one party to sue the other.

Equally, as I said, if a Minister of the UK Government made an order requiring the Scottish parliament to do something and it wished to challenge it, the Scottish parliament could review the decision by virtue of this provision. It would give the ability to litigate about that particular matter just as this provision will give United Kingdom Ministers the ability to litigate about the failure of the Scottish executive to give effect to the order. That is what is behind the order. It relates to any arrangement with the Scottish executive as a whole; for example, a contract or something of that kind.

Baroness Carnegy of Lour: My Lords, I am grateful to the noble and learned Lord. I would like to be quite clear that there is no suggestion that the Queen gives Royal Assent to legislation passed by the Scottish parliament in a different legal capacity from that in which she gives assent to legislation passed by the Westminster Parliament.

Lord Hardie: My Lords, I can give the noble Baroness that assurance. The Queen is acting throughout as Sovereign of the United Kingdom.

On Question, amendment agreed to.

Schedule 6 [Devolution issues]:

[Amendments Nos. 178 to 191 not moved.]

Clause 93 [Human rights]:

Lord Mackay of Drumadoon moved Amendment No. 191A:

Page 43, line 27, at end insert--
("(5) Proceedings to which subsection (1) applies may only be brought in an appropriate court or tribunal.
(6) In subsection (5) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and "proceedings" includes a counterclaim or similar proceeding.
(7) In subsection (6) "rules" means--
(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court;
(b) in relation to proceedings before a court or tribunal in Scotland, rules made for the purposes of this section;
(c) in relation to proceedings before a tribunal in Northern Ireland--
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force,
rules made by a Northern Ireland department for those purposes, and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.").

The noble and learned Lord said: My Lords, this amendment seeks to amend the provisions of Clause 93 of the Bill, which, as I recollect, was introduced at Committee stage in your Lordships' House. Its purpose is to seek to ensure that the Bill is compatible with

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the provisions of the Human Rights Bill which, I understand, completed its parliamentary passage last Thursday. The Human Rights Act, as it now is, provides in Section 7 that,

    "A person who claims that a public authority has acted (or proposes to act) in a way which is unlawful [by the previous Section 6] may bring proceedings against the authority under this Act in the appropriate court or tribunal, or rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act".
That was described as the "victim test" on more than one occasion in the debates on the Human Rights Bill.

The practical problem--as the noble and learned Lord the Lord Advocate, confirmed last week when we were debating the position of the Lord Advocate himself and the procurators fiscal who serve under him--is that members of the Scottish executive will be required to comply with the convention rights. If they fail to do so, either because a particular act is contrary to convention rights or because a particular failure to act is incompatible with any convention right, they will be liable to be challenged under this Bill as well. Clause 93 is directed to that.

The practical problem is that whereas the Human Rights Bill gives power to the Secretary of State--or the Lord Chancellor in England--power in Scotland for rules of court to be made to lay down which is the appropriate court or tribunal where such proceedings can be raised, there is no similar power in the Scotland Bill. The purpose of my amendment is to include similar powers in this Bill so that parties in Scotland in particular can seek to challenge the act or omission of the Scottish executive or of any official of the Scottish executive on the grounds that it is not compatible with convention rights. They will not have a choice as to which court or tribunal can initiate proceedings unless that choice complies with the rules which have been enacted. In the absence of such a provision there is scope for confusion. That is why I have brought forward this amendment. I beg to move.

7.30 p.m.

Lord Lester of Herne Hill: My Lords, I must be thick, but I cannot see any reason for this amendment. It seems to me that the point is taken care of in Clause 7 of the Human Rights Bill. Clause 7(2) of the Bill says that,

    "'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules".
Clause 7(11)(a) refers to rules in relation to proceedings before a court or tribunal in Scotland. Therefore, it seems to me that there is adequate power in the Human Rights Bill, but I have probably missed something.

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