My Lords, I have put my name to Amendments 6 and 64 and I would like to say a word or two about them. I did not put my name to Amendment 58, partly because it came a bit later, although I discussed it with the noble and learned Lord, Lord Thomas, and I understand its structure and support the reasons behind it.
I remember standing here and smiling at the Minister about a week ago because he had put forward an amendment to another Bill in which he was proposing, with our agreement, that the consent of the Scottish Ministers should be obtained before certain steps were taken. I am afraid I have forgotten the name of the Bill and the particular amendment but I think we all congratulated the Minister because he was, I think, following advice that came from the Constitution Committee, which suggested that it was appropriate that this kind of measure should in the Bill. I had the feeling that the tide had turned and that we might see more of that sort of thing.
The noble and learned Lord, Lord Thomas, already made the point that Amendments 6 and 64 are really quite modest, and it is difficult to see any harm that is done to the structure of the Bill or indeed the way matters are worked out by putting into the Bill—through Amendment 6, for example—that a Minister of the Crown may be requested by the devolved Administrations to put forward a streamlined subsidy scheme. The Minister is not bound to give effect to that request, but it does mean that there is an avenue for the devolved Administrations to ask for a particular scheme to be proposed by him. It would be a reassurance to the devolved Administrations that their position has been properly recognised. After all, it is a partnership throughout the United Kingdom to make this scheme work. We do not want to fall into the trap of the then internal market Bill, which was notorious in seeming to ignore the devolved Administrations altogether.
These are modest amendments, as the noble and learned Lord said, which do not disturb the overall working of the Bill. If one is trying to recognise the position of the devolved Administrations, this kind of provision in the Bill would be very welcome, as it was in that Bill last week.
Amendment 58 enables me to ask the Minister about what paragraphs 6 and 7 in Schedule 3 are really doing. They refer to the “appropriate court”; the noble and learned Lord, Lord Thomas, asked whether it is properly designed. It talks about
“subsidy proceedings before the appropriate court”
in which the issue before the court is to be
“assessed by reference to the considerations and views of the promoter of the proposed devolved primary legislation”.
Who will bring these proceedings? It is an important question which I hope that the Minister might answer. What is meant by the assessment
“by reference to the considerations and views of the promoter of the proposed devolved primary legislation”?
Who will be the promoter? The wording of these provisions leaves a great deal to be discovered later. I would very much like to know what exactly is going on here, who will initiate the proceedings, and why the assessment is designed as it is in these paragraphs.
That brings me to the point that the noble and learned Lord, Lord Thomas, was making—that we are dealing here with a matter of great constitutional importance. Apart from the Scotland Act, no other provision directs a court on how to deal with proceedings brought against legislation passed by the devolved parliament. It must be remembered, as he was saying, that the devolved legislatures are democratically elected with the mandate of that democratic election behind them. One is not dealing here with delegated legislation. A much higher order of legislation is being considered, which deserves to be assessed with reference to the mandate that the parliament or assembly has from the electorate which gave it life. It is very important to appreciate the extent to which one is dealing here with matters of real importance to the Administrations and giving proper weight to the democratic mandate which they have.
The advantage of going to the Supreme Court is twofold. First, it avoids the possibility of appeals in the normal process, where the appropriate court takes its decisions and there are then appeals and the proceedings are delayed. The Supreme Court process is very simple and very quick. You go direct to the highest court under a reference which identifies the issue. The court then deals with it. The other point is the uniformity which the Supreme Court can bring through all the jurisdictions.
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The amendment of my noble and learned friend Lord Thomas is long because he deals with each of the three jurisdictions; it emphasises that we are dealing with a UK enactment spreading its authority across all three jurisdictions of the United Kingdom and it makes sense that any issues about the appropriateness of legislation by the devolved legislatures should be decided by a single court so that there is uniformity throughout the system. That is what the amendment would achieve, and that is why it has a great deal of force behind it.
I have asked questions and am searching for a real understanding of what is going on in these provisions. I join my noble and learned friend Lord Thomas in inviting the Minister to consider the advantages of going to the Supreme Court instead of to the individual courts. There are the advantages of speed, certainty and uniformity throughout the jurisdictions because without those there is a risk of different decisions being taken in different jurisdictions, which is to nobody’s advantage.