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Lord Mackie of Benshie: My Lords, I wish to make a simple point about correctness to the Lord Mackay of Drumadoon. The expression, "noble Minister", is one that I dislike. Lords are "noble" by axiom and by custom. Ministers and ability are a matter of opinion.
On Question, amendment agreed to.
Lord Sewel moved Amendments Nos. 15 to 17:
On Question, amendments agreed to.
Clause 35 [Power to intervene in certain cases]:
Lord Mackay of Drumadoon moved Amendment No. 18:
The noble and learned Lord said: My Lords, perhaps I may also speak to Amendments Nos. 18 to 21. I stand corrected by the noble Lord, Lord Mackie of Benshie. I should of course have referred to, "the noble Lord the Minister". Perhaps I may gently encourage the noble Lord, Lord Mackie of Benshie, to look at his intervention in Hansard tomorrow to see whether, in addressing me, he referred to me in the correct terms.
Lord Mackie of Benshie: My apologies, my Lords.
Lord Mackay of Drumadoon: My Lords, one benefit that law officers and former law officers have is that they are always regarded as learned, whether or not that is justified.
I return briefly, but seriously, to a point that I raised on Report on 28th October. It is focused in Amendments Nos. 18 to 21 on Clause 35. I wish to take up a concern expressed by the noble and learned Lord, Lord Hope of Craighead, in Committee regarding whether Clause 35 as currently drafted might result in the judicial committee having to hear to completion references made under Section 33. The problem arose in terms of Clause 35(3)(c). The noble and learned Lord felt that, as drafted, the clause would require the judicial committee to go ahead with a case even if the Secretary of State knew all along that he would make an order within the terms of his power to do so under subsection (1).
On that occasion the drafting of my amendment was correctly criticised by the noble and learned Lord the Lord Advocate. I have redrafted the amendments and I hope that they are now immune from the criticism made on that occasion. The sole purpose of these amendments is to prevent the judicial committee carrying on with work which the noble and learned Lord, Lord Hope of Craighead, thought to be unnecessary. I beg to move.
Lord Hardie: My Lords, I am grateful to the noble and learned Lord for explaining Amendments Nos. 18
As I understand the noble and learned Lord's explanation, he is focusing on the point raised by the noble and learned Lord, Lord Hope of Craighead, in Committee. I assure the House that we have taken the point seriously. We appreciate that, if the Secretary of State uses his power to prohibit a Bill proceeding to Royal Assent after the judicial committee has determined that a Bill is within the legislative competence of the parliament, it could be argued that this would be wasteful of the time of the judicial committee. However, as I have explained, the noble Lords' amendment would not have the effect of preventing that. It would be prevented only if Clause 35(3)(c) was deleted.
As the Government have already made clear on a number of occasions, this and the other powers of intervention are meant to be long-stops. Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used. The incentives to avoid their use will be particularly strong in the case of a Bill that has been examined by the judicial committee. Against that background we concluded that it was right for the Secretary of State to have the option of using his power under Clause 35 after the vires of a Bill have been established.
Perhaps I may explain the point in a little more detail. Under Clause 33 questions about devolution issues can be referred to the judicial committee by the law officers of the United Kingdom Government, followed by the Lord Advocate as law officer to the Scottish executive. There is a variety of reasons why that may happen. The United Kingdom Government might be concerned that the Scottish parliament was straying beyond its competence, or the Lord Advocate could have doubts about the vires of a Private Member's Bill.
In the Government's view, it should be for the law officer who made the reference to decide whether it should be withdrawn if the Secretary of State indicated an intention to use Clause 35. A law officer to the United Kingdom Government might choose to do that in some circumstances; however, in other circumstances there might be a strong case for the devolution issue concerned to be determined by the committee. Even if the Bill concerned does not subsequently proceed in the same form, it may be desirable for the issue of vires to be clarified. With that explanation, I invite the noble and learned Lord to withdraw the amendment.
Baroness Carnegy of Lour: My Lords, before the noble and learned Lord sits down, and with the leave of the House, he is repelling this amendment on the grounds that the circumstances he described might happen. He has not said that the judicial committee's time could be wasted in certain circumstances. If that were the case, and in view of the important business conducted by the judicial committee--we have only to turn our minds to what is presently happening elsewhere in this House to see how important that can be--why not accept the amendment? I do not know whether it is
Lord Hardie: My Lords, I am sorry if the noble Baroness thinks that I do not listen. I assure her that I always listen to submissions on the part of noble, and noble and learned Lords. Perhaps I may explain what would happen.
If a reference was made to the judicial committee, and if after the four-week period but during the period of the reference the Secretary of State decided that he wished to make an order, what would happen is that the Secretary of State would make that fact known to those parties who were parties to the proceedings before the judicial committee. It would be for the law officer who had made the reference to the judicial committee to consider whether or not to withdraw it. I imagine that in most cases the law officer would withdraw the reference for the very reason given by the noble Baroness--namely, to save the time of the judicial committee.
However, there might also be cases where the law officer considered that the issue in the case ought to be determined by the judicial committee so that clarification could be sought from the supreme judicial body as to the proper construction, so that the same difficulty would not arise in future.
By rejecting the amendment, we keep the flexibility available to the law officer--not just the Lord Advocate but the law officer of the United Kingdom Government. As I said, the law officer of the United Kingdom Government may well decide, although the Secretary of State will be a member of the United Kingdom Government, in certain special circumstances that he or she still wishes for a decision of the judicial committee. It is for that reason that we invite the noble and learned Lord to withdraw the amendment. I hope that this additional explanation has clarified my position. I apologise to the House if my explanation was not clear on the first occasion.
Lord Hope of Craighead: My Lords, before the noble and learned Lord sits down, and again with the permission of the House, is it envisaged that the judicial committee will be kept informed about the kind of discussions to which the noble and learned Lord referred? I ask that question because it seems to me that on occasions some of the issues which require reference to the judicial committee will be extremely urgent. We have the experience, with matters going on upstairs this week, of the disruption to the programme of hearings which can occur if urgent cases are slipped in out of order.
Plainly it is the responsibility of the judicial committee to deal promptly with urgent cases; but if the case is one where hanging over the decision is the Secretary of State's view which will result in the
Lord Hardie: My Lords, the rules for the judicial committee would be a matter for that committee. I see no reason why the committee should not be advised that the matter was in issue and that the case was therefore no longer as urgent as one might normally expect.
Lord Mackay of Drumadoon: My Lords, it is quite obvious that since the matter was first raised much further consideration has been given to it. I am grateful to the noble and learned Lord the Lord Advocate for making that clear. As he rightly says, rules will have to be made for the work of the judicial committee. My recollection is that we have had some discussion already about the need for an order in council and whether it will be necessary to make a provision about the issue in the order in council. It may be a matter for further reflection.
So would the issue which the noble and learned Lord raised as to whether the law officer who made the reference would have the right to withdraw it. There may well be an argument that if one law officer has placed an issue before the judicial committee, it is not up to him to withdraw it unilaterally. There may be the view that the other law officers have a right to insist that it goes ahead and the judicial committee itself, having been seized of it, may fall to be given discretion or to have a role in the matter. That too is an issue which might be addressed in the Order in Council, a draft of which we have already seen.
I accept the force of the point made by the noble and learned Lord that in certain instances it may be desirable that the devolution issue raised be determined, even though it is intended that the Secretary of Sate should, in the fullness of time, proceed with a Clause 35 order because the judicial committee's decisions on determinations will be of value in future cases, not just in the one before them.
I am not entirely satisfied that my amendments would have precluded that from happening, but I am satisfied that the concern which was raised initially by the noble and learned Lord, Lord Hope of Craighead, has been given much fuller consideration. For those reasons, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 to 21 not moved.]
Clause 40 [Proceedings by or against the Parliament etc.]:
Page 14, line 40, leave out (", subject to subsection (2),").
Page 14, line 41, leave out ("Presiding Officer decides") and insert ("decision of the Presiding Officer under section 31(1A) is").
Page 15, line 1, leave out from beginning to ("shall") and insert ("Such a decision of the Presiding Officer").
Page 16, line 20, leave out ("at any time during").
5 p.m.
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