Justice and Security Bill [HL]

Duke of Montrose Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Pannick]

I am very grateful to the Minister for confirming that the Government are proposing the deletion of Clause 11(2) and the order-making power.

I have a concern about Amendment 43, which includes the Supreme Court in the list of courts that will have power to make a CMP. Given the role of the Supreme Court as the final court of appeal in this jurisdiction, it is highly undesirable that it should decide points of law of public importance in judgments that the public and lawyers generally cannot see.

I do not intend to divide the House on Amendment 43. Given the amendments supported by the House earlier this evening, I would understand that the Supreme Court would have ample discretion to decide whether or not it is appropriate for it as the final court of appeal to order a CMP, and no doubt it would wish to take into account the undesirability, if so perceived, of the Supreme Court issuing judgments that, at least in part, the public and lawyers generally would not be able to see. However, I raise that concern.

[The Duke of Montrose]

My Lords, I thank my noble and learned friend for the way in which he presented his amendments. As he notified the House earlier, if his Amendment 59 is approved, my Amendment 60 will become superfluous. I raise the point that without Amendment 59, there would be a very real danger that anything that the Secretary of State had decided to amend by order in the Scottish courts would be seen as meddling in the affairs of the Scottish legal system. At present, there is nothing more likely to inflame the amour propre of the Scots than actions such as this.

The possibility of this problem was drawn to my attention by the Law Society of Scotland. If Amendment 59 is adopted, we will have a much clearer and more workable piece of legislation than one that is likely to cause controversy. If by any chance it is not carried, I will still wish to bring my amendment forward.

The Bill appears to be walking a fine line on what might be termed issues that might require a legislative consent Motion in the Scottish Parliament and those that would not. Even now, Clause 6(7)(c) of the Bill gives powers to the Court of Session. I understand that early in Committee it was briefly drawn to the attention of the Justice Committee in Edinburgh. Can my noble and learned friend tell the House whether this question of a legislative consent Motion has finally and satisfactorily been resolved?

[Lord Wallace of Tankerness]

My Lords, as I indicated, the intention is that the Supreme Court should not have available to it powers that are available in the lower courts, but the noble Lord, Lord Pannick, makes an important point with regard to judgments.

With regard to my noble friend’s concerns, it probably would have been the case that had we had a power that involved Scottish Ministers, a legislative consent Motion would have been required. Although the Bill refers to the Court of Session, it has become abundantly clear in our deliberations that the substance of these matters relates to national security, and national security is very clearly reserved to the United Kingdom Parliament and therefore a legislative consent Motion would not arise.