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Clause 52
Amendment made: No. 322, in page 22, line 24, leave out '14' and insert
'9 and 11 to 13'.--[Mr. McFall.]
Clause 52, as amended, ordered to stand part of the Bill.
Clause 53 ordered to stand part of the Bill.
Clause 54
8.45 pm
Mr. Bernard Jenkin (North Essex): I beg to move amendment No. 281, in page 22, line 40, leave out from 'may' to end of line 41 and insert
'apply to the Court of Session to seek an order to prohibit the proposed action'.
The Second Deputy Chairman: With this, it will be convenient to discuss the following amendments: No. 282, in page 22, line 44, leave out from 'may' to end of line 45 and insert
'apply to the Court of Session to seek an order to require such action to be taken'.
No. 283, in page 23, line 14, leave out
and insert
Mr. Jenkin:
I have to confess that I rise with some trepidation, because I was given this neat little collection of amendments to pursue. The more I delved into the Bill and had the Secretary of State jog my elbow and chuckle, the more I realised why a QC would want to delegate the matter to a non-lawyer. I shall try to be brief to give the Secretary of State as much time as possible to address all the issues that arise from clause 54.
Clause 54, which we term one of the governor-general clauses of the Bill in view of the powers that it possesses, relates to clause 33, which, unfortunately, we did not have time to discuss. I remind the Committee that clause 33(1)(a) deals with the Secretary of State's powers to intervene. If a measure contains provisions which he
Although I do not wish to tie the Committee in knots, the Secretary of State tells me that the provision relates back to clause 28--one of the most complicated clauses of the Bill, which sadly, we did not discuss. In addressing our amendments to clauses 54 and 55, I invite the Secretary of State to relate his comments to the other clauses that we have not discussed, while remaining in order.
The key question is what is an international obligation, and what is the Secretary of State's determination of an international obligation in respect of his order-making powers under clauses 33 and 54. In the equivalent debate on Wales, we established that international obligations went beyond treaty obligations. We used as an example the Agenda 21 agreement on the environment. The example which I want to pursue in respect of the amendments is that of the Rio carbon emission targets. To what extent do they represent an international obligation on the United Kingdom that is translatable into an international obligation on the Scottish Executive and the Scottish Parliament? What is the nature of the Secretary of State's decision whether to use his order-making powers in circumstances which I shall describe later?
The issue turns on whether the Secretary of State is making a political or a judicial judgment. The substance of our amendments to clause 54 and to clause 33 is that the Secretary of State is making more of a judicial pronouncement than a political judgment; therefore, it would be more appropriate for the matter to be decided by a court--whether it is the Judicial Committee of the Privy Council or the Court of Session--than by the Secretary of State.
Let us accept that the circumstances would be exceptional, but they could also be extremely controversial. If the Secretary of State used an order-making power to strike down an action of the Scottish Executive or to compel the Scottish Executive to take an action that it would not otherwise take, one can imagine that the political atmosphere would become pretty heated. If we want a positive and constructive relationship involving Westminster and Whitehall and Holyroodhouse and St. Andrew's house, it is not difficult to suggest that the heat should be taken out of the issue by the courts rather than have an essentially judicial matter decided by the Secretary of State.
Mr. Wallace:
There is much to commend amendment No. 281, not least the point that the hon. Gentleman has been making. However, if he has read the notes on clauses--as I am sure he has--he will note that one of the features of the international treaty obligations referred to in the Bill, and the reason for the clause, is that they have not been made part of our domestic law. How does he think that those obligations would become justiciably noted?
Mr. Jenkin:
I shall deal with that point.
The Parliamentary Under-Secretary of State for Scotland (Mr. Sam Galbraith):
Do we have all weekend?
The issue that the Secretary of State decides is not immune to questioning by the courts and may well be subject to judicial review. I shall deal with that point shortly.
I invite the Committee to examine the possibility, which I had started to describe, of a dispute among the Government, Whitehall and the Scottish Executive over the extent to which Scotland was fulfilling its part of the obligation to reduce carbon emissions. It would fall to the Secretary of State to decide whether Scotland was frustrating the United Kingdom in fulfilling that obligation. Perhaps there had been a concordat between the Scottish Executive and Whitehall on how the emission targets should be divided between Scotland and the rest of the United Kingdom, and perhaps that agreement had broken down. When the point came at which the Secretary of State had to take a view on the issue, he might decide that Scotland had not contributed sufficiently to reducing emissions, and therefore invoke his order-making powers.
I invite the Secretary of State to tell the Committee whether that order-making power would be subject to judicial review. If so, what would be the substance of the judicial review? It is one thing for the Secretary of State to decide whether he considers an international obligation to have been fulfilled, but, if it comes to a judicial review,
surely the court has to decide whether an international obligation existed and whether the Scottish Parliament and Scottish Executive were frustrating the United Kingdom's fulfilment of that obligation.
Would it not be better if such an issue were decided initially by a court? I do not know whether the issue would ultimately finish in an international court--for it to decide a United Kingdom constitutional dispute--but that seems rather unlikely. Therefore, to answer the question asked by the hon. and learned Member for Orkney and Shetland (Mr. Wallace), I think that, on an issue of international obligation and international law, a domestic court would have to decide whether the Secretary of State was justifiably using that power.
Our group of amendments would ensure that initially courts address the issues, rather than leaving them as the basis of political dispute. Specifically, in our proposed amendments to clause 33, we suggested that the matter should be referred directly to the disputes procedure, as specified in paragraph 4(1) of schedule 6. In amendment No. 281, we recommend using the Court of Session, but we are not fussy. If the Secretary of State comes up with a better idea, we should very much welcome those proposals. It is clearly odd to invite a United Kingdom domestic court to decide a matter of international law. Although it seems unavoidable that such adjudications will have to be made, they should not be made by the Secretary of State.
Mr. Dalyell:
Clause 54 constitutes a substantial restraint on the competency of certain legislation in the Scottish Parliament. Although the clause empowers the "Secretary of State", that need not be the Secretary of State for Scotland; as the Bill is written, it could be any Minister of the Crown. I wonder whether the Secretary of State will confirm that.
I must say that it is a travesty of scrutiny in the House of Commons that, as with clause 33, we did not debate clause 53. By the time of the Bill's Third Reading, no one will be able to say that the Bill was properly scrutinised. Unless we very thoroughly scrutinise clauses 33 and 53 at Report, we cannot claim to have had scrutiny.
Given the existence of clause 53, which allows Westminster Ministers to override the actions or supply the omissions of Scottish Ministers in the European Community and convention spheres, it is not clear why clause 54(2), with its power to require action of a Scottish Minister in the same spheres, is necessary. Surely the same result can be achieved by the UK Minister asserting his independent right. Regardless, what sanctions are available to ensure that relevant action is taken by the Scottish Minister?
'by order revoke the legislation'
'apply to the Court of Session for an order revoking the legislation'.
"has reasonable grounds to believe would be incompatible with any international obligations",
he can delay or make an order suspending the Royal Assent of an Act of the Scottish Parliament.
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