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Baroness Ashton of Upholland moved Amendment No. 37:
The noble Baroness said: My Lords, these provisions define enactment in subordinate legislation for the purposes of the Bill. Different parts of the Bill extend to different parts of the United Kingdom and it is necessary to define the terms to reflect that. In those parts of the Bill that apply throughout the United Kingdom, "enactment" is defined to include Acts of the Scottish Parliament and Northern Ireland legislation. In those parts that extend to England and Wales and Northern Ireland only, "enactment" refers to Acts of this Parliament and Northern Ireland legislation and, where necessary, Measures of the Church of England only. The aim of these amendments is to remove any possibility of uncertainty about the meaning of the terms "enactment" and "subordinate legislation" in different parts of the Bill,
Amendments Nos. 37, 57 and 74 to 77 make consequential amendments across the Bill on account of the new definitions of "enactment" and "subordinate legislation". I beg to move.
Baroness Carnegy of Lour: My Lords, does Amendment No. 39, which I think is in the group to which the Minister was speaking, change the position in relation to legislation in Scotland via the Scots Parliament as it stands now, vis-à-vis the Appellate Committee of the House of Lords?
Baroness Ashton of Upholland: My Lords, Amendment No. 39 is not part of this 15th group of amendments. The noble Baroness will see that it consists of Amendments Nos. 37, 57, 72, 73, 74, 75, 76 and 77. I am sure we can address her concern when we reach Amendment No. 39.
Baroness Carnegy of Lour: My Lords, I apologise.
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 39:
"RELATION TO OTHER COURTS ETC
(1) Nothing in this Part is to affect the distinctions between the separate legal systems of the parts of the United Kingdom.
(2) A decision of the Supreme Court on appeal from a court of any part of the United Kingdom, other than a decision on a devolution matter, is to be regarded as the decision of a court of that part of the United Kingdom.
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(3) A decision of the Supreme Court on a devolution matter
(a) is not binding on that Court when making such a decision;
(b) otherwise, is binding in all legal proceedings.
(4) In this section "devolution matter" means
(a) a question referred to the Supreme Court under section 33 of the Scotland Act 1998 (c. 46) or section 11 of the Northern Ireland Act 1998 (c. 47);
(b) a devolution issue as defined in Schedule 8 to the Government of Wales Act 1998 (c. 38), Schedule 6 to the Scotland Act 1998 (c. 46) or Schedule 10 to the Northern Ireland Act 1998 (c. 47)."
The noble Baroness said: My Lords, this amendment fulfils a commitment made to the Select Committee, and underlined in the recommendation at paragraph 283 of the Select Committee's report, to bring forward an amendment to safeguard the separate jurisdictions to be exercised by the Supreme Court in respect of Scottish, Northern Irish and English law.
The concern which the amendment is designed to meet is that the establishment of the Supreme Court would set off a process of erosion of the distinctions between the separate and quite distinctive legal systems of England and Wales, of Scotland and of Northern Ireland or, as it has been described, the possibility of creeping Anglicisation of Scottish law. It is no part of the Government's proposals to have that effect. The new clause introduced by this amendment, therefore, sets out to forestall any such possibility.
Subsection (1) is a clear statement that nothing in this part of the Bill is to affect the distinctions between the separate legal systems of the parts of the United Kingdom. Subsection (2) states that a decision of the Supreme Court on appeal from a decision of a court of any part of the United Kingdom is to be regarded as the decision of a court of that part of the United Kingdom, except in relation to a devolution matter, which is dealt with in subsection (3). That is not a new or controversial proposition: it is consistent with the approach of the House of Lords outlined as long ago as 1802 in Johnstone v Stotts by the Lord Chancellor, Lord Eldon, who stated:
"We are sitting here as the Court of Session in Scotland, to decide as that court ought to decide, and . . . we are bound not to apply our English principles, and our English doctrines".
Thus, the landmark case of Donoghue v Stevenson, which revolutionised the English law of tort, did so not because the decision of the House of Lords was formally binding on English courts, but because the principles enunciated in it, although set out in the context of the Scottish law of delict, were of such persuasive force as to be compelling in subsequent English cases.
Subsection (3) of the new clause maintains the status quo in relation to the effect of decisions in devolution proceedings. A decision of the Judicial Committee of the Privy Council in the exercise of its devolution jurisdiction is,
Subsection (3) of the new clause accordingly makes it clear that a decision of the Supreme Court on a devolution matter will not bind the court itself when subsequently making a decision on a devolution matter, but will otherwise be,
Finally, subsection (4) of the new clause defines "devolution matter". This term encompasses all those matters that are encompassed in "proceedings under this Act" in the Scotland Act, Northern Ireland Act and Government of Wales Act, again so that the existing position is maintained.
I think that that also answers the question of the noble Baroness, Lady Carnegy. I beg to move.
Lord Renton: My Lords, the point that I wish to raise is rather technical. Subsection (1) states:
"Nothing in this Part is to affect the distinctions between the separate legal systems of the parts of the United Kingdom".
Although Northern Ireland and, to a limited extent, Wales have had some statutory amendments to their law, the only truly separate legal system is the ancient legal system of Scotland. I hope that I am right in this. I would have thought that, if that is so, that should be made clear in this clause.
Baroness Ashton of Upholland: My Lords, there are differences between English law and Scottish law, Scottish law and law in Northern Ireland and England and Wales. What this addresses is the distinction between the different legal systems. The noble Lord may have a view about the length and type of the distinctions but, none the less, this amendment seeks to address the fact that there are distinctions and to make sure that they are recognised in the way that I have described. I think there is no contradiction between us. It is simply the way that we have chosen to address this.
On Question, amendment agreed to.
Clause 34 [Changes in composition]:
Clause 35 [Specially qualified advisers]:
Clause 37 [Procedure after rules made]:
Clause 41 [Accommodation and other resources]:
[Amendments Nos. 47 and 48 not moved.]
Clause 44 [Fees: supplementary]:
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Clause 46 [Records of the Supreme Court]:
Clause 47 [Proceedings under jurisdiction transferred to Supreme Court]:
Clause 48 [Interpretation of Part 2]:
[Amendments Nos. 52 to 56 not moved.]
Clause 68 [Selection of puisne judges and other office holders]:
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