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Lord Kingsland: My Lords, before the Minister sits down, I asked in relation to Amendment No. 18 whether he would like to give your Lordships' House an example of a situation in which the Minister might consider that action was not necessary but was expedient. For reasons that I well understand, he did not proffer any such illustrations.
As regards Amendment No. 19, I wish to press him on two matters. First, is he saying that Ministers can issue subordinate legislation to change the decisions of courts which have been based on ordinary administrative law, such as the principles of natural justice or the principles of reasonableness? If so, this legislation is going way beyond its terms of reference. Secondly, can he assure the House that if and when subordinate legislation is issued it is not issued while judicial proceedings are underway?
Lord Dubs: My Lords, the answer to the first question is no. I shall turn to his second question in a moment. As was said by the noble Lord, Lord Williams, at the Report stage, there is a power judicially to review a decision by the Secretary of State. I would have thought that that would be a safeguard, particularly in view of the fact that it would weigh on the mind of the Secretary of State if she sought to make legislation while action was pending in the courts.
The safeguard exists and I would have thought that if action were pending in the courts the Secretary of State would be unlikely to take such a step because of the possibility of judicial review. That goes a long way towards dealing with the noble Lord's point.
As regards his request for an example of the difference between "expedient" and "necessary", I do not want to be tempted down that path and the noble Lord would not expect me to be. I am sure he will take the point that, given the difference between the Scottish and Northern Ireland legislation, if we were to go down the path of the amendment we would be left in an unsatisfactory position. For that reason alone, the noble Lord ought to accept the use of the word "expedient".
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Is he aware that by retaining the words "or expedient", as he tends to do for Scottish reasons, the effect is to make judicial review almost impossible. If the word "necessary" were inserted and if a subjective discretion were included it
would be possible. However, the safeguard of judicial review is diluted if the words "or expedient" are included. In view of what the Minister has just said, that is one good reason for accepting the amendment; to ensure that the courts have the power judicially to review the subjective discretion of the Minister where there is no necessity for using his powers.
Lord Dubs: My Lords, I am not sure that I take the noble Lord's point. In view of the fact that the Scottish Bill refers to "expedient", the provision might lead to a particularly narrow view being taken of its scope if it were amended. Such uncertainty might lead to us being unable to take steps in Northern Ireland which might be taken in Scotland. I believe that in this respect it would be better to keep the two pieces of legislation in line, otherwise the wrong conclusions might be drawn as to the reasons for the differences between them. Given that the point was argued fully during debates on the Scottish Bill, I am reluctant to go further. I believe that the wording is proper. It coincides with what has been provided in the Scottish Bill and is therefore sensible.
I refer to the point made by the noble Lord, Lord Kingsland. He asked whether the Secretary of State could use the power unless something unlawful happened. That would ultimately be for the courts to decide. What the Secretary of State then does by way of subordinate legislation is rightly a matter for her judgment. I suggest that that distinction is the proper one.
Lord Kingsland: My Lords, before the Minister sits down, he has been extremely generous in dealing with perhaps a record number of supplementary questions on Third Reading. On the other hand, the matter was unearthed in the Scotland Bill only on Third Reading. Therefore, there are good reasons for the fact that it has surfaced in this Bill only now. As regards separation of powers, the Minister almost met my question, but not quite. Can he assure the House that there will be no circumstances in which legislation will be issued to affect judicial proceedings before they are terminated?
Lord Dubs: My Lords, I believe that the answer to that is yes. I am reluctant to be 100 per cent. categoric, but I understand that the answer is yes.
Lord Kingsland: My Lords, in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Clause 81 [Powers of courts or tribunals to vary retrospective decisions]:
Lord Dubs moved Amendment No. 20:
The noble Lord said: My Lords, Amendments Nos. 20 and 21 make certain drafting changes in Clause 81, which concerns the powers of courts or
On Question, amendment agreed to.
Lord Dubs moved Amendment No. 21:
On Question, amendment agreed to.
Clause 83 [Interpretation of Acts of the Assembly etc.]:
Lord Kingsland moved Amendment No. 22:
The noble Lord said: My Lords, I am encouraged by what the Minister said during our brief discussion of Clause 80. He suggested that it was important to keep closely to the Scottish precedent. I say to the noble Lord that what is sauce for the goose is sauce for the gander. We have an interpretation clause in the Scottish Bill which I believe seeks to achieve the same objective as the interpretation clause in this Bill.
The matter was addressed by the noble Lord, Lord Williams of Mostyn, at the Report stage. He claimed that there was great merit in the version in the Northern Ireland Bill. So which is it to be? Is it the case that the Scotland Bill ought to have taken its lead from the Northern Ireland Bill?
At the beginning of this parliamentary Session we had only one rule of interpretation, laid down by the common law. Since then we have acquired three further rules of interpretation; one in the Human Rights Act, one in the Scotland Bill and another in the Northern Ireland Bill. Each one of those drafts seeks to achieve the same objective; that is to say, the objective of sympathetic interpretation. Where it is possible to interpret a clause or an expression so that it is intra vires it should be so interpreted. If that is so why is this simple and straightforward aspiration expressed in three different ways? It is likely to lead to much confusion when the judges get hold of it. I beg to move.
Lord Lester of Herne Hill: My Lords, again, I entirely agree with what the noble Lord, Lord Kingsland, said. The problem is that one is playing curious games here. Sometimes it suits to follow the Scotland Bill and sometimes not; sometimes it suits to follow the Human Rights Act and sometimes not. However, the principles of interpretation which the courts must apply should be consistent as far as possible between the three devolution Acts and the Human Rights Act. This amendment has the virtue of seeking to make the legislation user-friendly and consistent. In my view, it is to be welcomed for those reasons.
Lord Dubs: My Lords, I deal first with the point of whether in all respects we should replicate the Scotland
The amendment would insert a provision borrowed from Clause 101 of the Scotland Bill in our Bill. As I have written to the noble Lord, I believe the transplantation is inappropriate. Though the Scottish clause and ours are drafted to achieve similar objectives, they reflect the different structures of the two Bills. The Scotland Bill has a general concept of devolved competence as respects subordinate legislation. Ours has a more restricted concept of invalidity under Clause 24 or 76. The drafting reflects that.
But I assure the noble Lord that the two clauses closely resemble each other in effect. Both clauses are directed at possible readings of legislation; both require that where, of such possible readings, a broader one would lead to a finding that an Act would be outside legislative competence, or subordinate legislation invalid, and a narrower one would lead to a finding that it was within competence or valid, the narrower one is to be preferred.
I hope that, in view of my letter and of what I have said, the noble Lord will not press his amendment. I hope too that I have reassured the noble Lord, Lord Kingsland, that, although there are instances where it is appropriate to replicate the Scottish legislation in our legislation, there are other instances where that is not appropriate because the structure of our Bill is different and has a different starting point from the Scottish legislation. I hope the noble Lord is satisfied with my answer.
Page 42, line 1, after ("(4)") insert ("or, where such notice is given to the First Minister and the deputy First Minister, those Ministers acting jointly").
Page 42, line 8, leave out ("acting jointly").
Page 43, leave out subsection (2) and insert--
("( ) The provision shall be read as narrowly as is required for it to be within competence, if such reading is possible, and is to have effect accordingly.").
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