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Lord Mackay of Drumadoon: My Lords, I am grateful to the noble and learned Lord for making the position clear. If the answer is as short and as obvious as the response that has just been given, perhaps I should have known it before. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

2 Nov 1998 : Column 106

Lord Mackay of Drumadoon moved Amendment No. 192F:

After Clause 94, insert the following new clause--

Criminal proceedings: procedure where legislation is ultra vires

(" .--(1) This section applies where in criminal proceedings a court decides that--
(a) an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or
(b) a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve.
(2) When a court reaches any decision to which this section applies, it, and any inferior court bound by its decision, shall take account of and act upon any such decision in the conduct of the criminal proceedings in which the decision was made.").

The noble and learned Lord said: My Lords, we debated this matter in Committee on 8th October. I explained then my position on the amendment at some length and, therefore, I need not repeat in great detail what was said on that occasion. My concern basically was that if, in the course of criminal proceedings, it becomes obvious that there is a valid challenge to either a provision of primary legislation or subordinate legislation upon which a criminal prosecution proceeds, that should be the end of the matter. The court should decide the effect that that successful challenge has on the proceedings and either bring them to a halt or proceed depending upon what view the trial judge takes as to the effect that the invalid provision may have.

In the speech that I made on the last occasion I said that there might be two instances where such a problem might arise. The first is where it in some way justified a successful challenge to the competency of the charge which a particular accused was required to face in criminal proceedings. The second instance was where such an issue affected the admissibility of any evidence upon which the Crown intended to rely. I sought to contrast the situation with what will arise in civil proceedings where, possibly, different considerations may apply.

It is fair to say that, in his reply, the noble and learned Lord the Lord Advocate did not come up with any concrete example as to where it would be appropriate for the criminal court to have the discretionary powers set out in Clause 95, as it now is. In particular, that applies to the discretionary powers to make an order removing or limiting any retrospective effect of the decision or suspending the effect of the decision for any period or on any conditions to allow the defect to be corrected. However, the noble and learned Lord did suggest that there may be exceptional cases where it is appropriate for the court to say:

    "Well, there is a defect here but it is a fairly technical matter. it is in the interests of justice that the opportunity be given to remedy it".
The noble and learned Lord then went on to say:

    "It is that very exceptional situation that the clause is intended to address. Clearly the clause is mainly directed toward civil cases where people have acted upon certain legislation to their prejudice".--[Official Report, 8/10/98; col. 597.]
On that occasion the noble and learned Lord clearly took a similar line to the one which I take; namely, that other considerations may apply in civil proceedings.

2 Nov 1998 : Column 107

I have considered the matter carefully since 8th October to see whether it is possible to identify exceptional cases where it would be appropriate in civil proceedings for a criminal court to have such discretionary powers. I have been unable to identify any case where that would be appropriate and for that reason I have brought forward this amendment again. I beg to move.

Lord Hardie: My Lords, the position of the Government is the same as it was in Committee. When we considered the matter at that time the noble and learned Lord voiced his concerns about the effect of the provision in criminal cases. He could see few reasons why it was appropriate to allow the courts this power in criminal cases. He feared that by giving them this power we risked their exercising the power in a way which might breach convention rights. I said that clearly in criminal cases the power would be exercised, and be exercisable, only in exceptional cases. The very nature of exceptional cases is such that it is difficult to imagine what they would be because they are exceptional.

I understand the noble and learned Lord's concerns but I do not think that his amendment provides us with an appropriate solution. I take comfort from the fact that the noble and learned Lord, Lord Hope of Craighead, argued on a previous occasion that this matter should be left to the discretion of the courts. The courts will not use this power lightly. On that occasion the noble and learned Lord thought--he is not present at this stage this evening--that the provision as framed was appropriate. Accordingly I invite the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon: My Lords, since the previous occasion on which we discussed this matter I have considered what the noble and learned Lord, Lord Hope, said. However, he, like the noble and learned Lord the Lord Advocate, could not identify an exceptional case. I have thought carefully about the matter and I intend to insist on the amendment.

9.36 p.m.

On Question, Whether the said amendment (No. 192F) shall be agreed to?

Their Lordships divided: Contents, 37; Not-Contents, 87.

Division No. 3


Annaly, L.
Archer of Weston-Super-Mare, L.
Attlee, E. [Teller.]
Blatch, B.
Brougham and Vaux, L.
Byford, B.
Carnegy of Lour, B.
Carr of Hadley, L.
Chesham, L.
Dixon-Smith, L.
Dundee, E.
Gardner of Parkes, B.
Gisborough, L.
Harris of Peckham, L.
Kingsland, L.
Leigh, L.
Lindsay, E.
Lyell, L.
Mackay of Ardbrecknish, L. [Teller.]
Mackay of Drumadoon, L.
Monro of Langholm, L.
Montrose, D.
Northbrook, L.
Northesk, E.
Palmer, L.
Park of Monmouth, B.
Renton, L.
Rowallan, L.
St. John of Fawsley, L.
Saltoun of Abernethy, Ly.
Selkirk of Douglas, L.
Sempill, L.
Skelmersdale, L.
Stair, E.
Sudeley, L.
Wharton, B.
Windlesham, L.


Acton, L.
Addington, L.
Ahmed, L.
Alderdice, L.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brooks of Tremorfa, L.
Burlison, L.
Carlisle, E.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Crawley, B.
Davies of Coity, L.
Dean of Beswick, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gordon of Strathblane, L.
Goudie, B.
Grenfell, L.
Hacking, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Jay of Paddington, B. [Lord Privy Seal.]
Linklater of Butterstone, B.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
Mallalieu, B.
Mar and Kellie, E.
Milner of Leeds, L.
Monkswell, L.
Morris of Castle Morris, L.
Orme, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Razzall, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Sawyer, L.
Scotland of Asthal, B.
Sefton of Garston, L.
Sewel, L.
Simon, V.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Macclesfield, L.
Thomson of Monifieth, L.
Thornton, B.
Thurso, V.
Tomlinson, L.
Tordoff, L.
Uddin, B.
Varley, L.
Warner, L.
Whitty, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

2 Nov 1998 : Column 108

9.45 p.m.

Clause 95 [Powers of courts or tribunals to vary retrospective decisions]:

[Amendments Nos. 192G to 192L not moved.]

Clause 96 [The Judicial Committee]:

[Amendments Nos. 193 to 199 not moved.]

Lord Selkirk of Douglas moved Amendment No. 200:

Page 45, line 4, at end insert--
("(d) provide such resources to the Judicial Committee as Her Majesty considers necessary or expedient.").

2 Nov 1998 : Column 109

The noble Lord said: My Lords, the amendment makes provision for adequate resources to be made available to the Judicial Committee so that it can properly meet its responsibilities under Clause 94. No provision is made in the Bill for adequate resources to be made available to the Judicial Committee to deal with devolution issues. I should be grateful to hear the Minister's view as to whether an amendment along these lines is necessary.

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