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Mr. Dewar: Perhaps the hon. Gentleman will allow me to address that point. He also asked me--it is a great curiosity, and no doubt very flattering to those who write the notes--about a piece of paper that was handed to me. It is not a particularly sophisticated argument and is probably the product of reading the Bill. It says;
- "Clause 54 does not deal with EC obligations, but with international obligations--see clause 111(7). It will therefore be for the ordinary domestic courts to deal with any judicial review, not the European Court of Justice, as was being suggested."
Mr. Jenkin: Is the Secretary of State therefore giving the Committee an assurance that all the obligations that are at present classed as international obligations between members of the European Union will at no stage ever be transmuted into European Community law by some action of a European Court, as has happened in the past?
Mr. Dewar: I am not going into such arcane matters. We are discussing a sensible series of safeguards against the kind of friction and difficulty that Opposition Members envisage. I think that they exaggerate the danger. I do not think that it will occur, but if we did not make provision in the Bill against those eventualities, we would be open to criticism, such as, "What happens if there is friction? What happens if there is a refusal?" If default will fall heavily on the state in which we shall all be involved--the United Kingdom--and which signed up for those obligations, it is important that we have a way in which to obviate the problem.
Mr. Rowe: In the admittedly unlikely event of such a disagreement arising, does the right hon. Gentleman envisage that it would be subject to scrutiny by the House of Commons, or would it be an arbitrary act or an executive act of the Secretary of State? If it were subject to scrutiny by the House, would that not lead to a curious situation where Scottish Members might line up with the Scottish Parliament, and other Members might sympathise with them?
Mr. Dewar: It may be a curious situation, but the answer to the hon. Gentleman's question is that clause 33 contains a provision whereby a Bill may be prevented from going for Royal Assent because of such a dispute. The relevant Secretary of State will lay an order prohibiting the Presiding Officer from making that presentation. Under clause 54(4), where a statutory instrument or some other form of subordinate legislation is being dealt with, an order must be laid revoking that legislation. I understand the hon. Gentleman's point, but it is adequately covered.
Mr. Cash: The right hon. Gentleman has a slight disadvantage, which is that I think that he is a reasonable man. I have no doubt that he will strive with all his might to arrive at reasonable grounds if the provision leads to the possible revocation of legislation. My problem with it--I invite the Secretary of State to answer the question that so far has not been answered by him--is that clause 111(7) purports to describe international obligations. It states that those are obligations other than those relating to European Community law.
However, with his great experience, the right hon. Gentleman must know that there are spheres of jurisdiction where Community law overlaps with what purport to be international obligations that might fall within the remit of domestic law. Does he accept that the Bill itself is subject to the question of whether the Court of Justice would arrogate to itself jurisdiction--
The First Deputy Chairman:
Order.
Mr. Cash:
On a point of order, Mr. Martin. I am making a substantive point relating to a question of important constitutional law which arises in the context of--
The First Deputy Chairman:
Order. Let me answer that point. The hon. Gentleman made an intervention and he should know by now that interventions should be brief. He certainly had a good innings in that one.
Mr. Dewar:
The hon. Member for Stone always has a good innings. It is always redeemed by the fact that he grins at his own efforts at the end, in the most pleasant and genuine of ways, and we all forgive him. [Hon. Members: "No."] I can only ask my hon. Friends to search their hearts for charity. A perfect antidote is, when the hon. Gentleman crosses the 18th minute, to leave the Chamber. That cuts the pain quite considerably.
On a more serious note, I cannot pretend to be an expert on international jurisdiction, but I hold to the simple point that I have made--that we have built into the Bill a series of procedures to reduce any possibility of friction. That is what we are constantly being asked to do. The hon. Member for Stone is only one of a procession of hon. Members saying, "Oh, if there is friction, what a difficulty that will be." This measure meets that point.
Clearly, if there is a difficulty, we would expect the respective authorities in Edinburgh and London to discuss the issue and to see, at official level, whether agreement could be reached. There might have to be ministerial contact at both ends of the country. From that, one proceeds in the way that we have described--the European way, through section 2(2) of the European Communities Act 1972 or, if it is an international obligation, the route that we are now debating.
Mr. Dewar:
I hope that the hon. Gentleman will bear with me for a moment.
I come now to some of the other points that have been made. I am anxious to get across that this is a belt-and-braces and a fail-safe measure, not a general override power which a Secretary of State can use at whim. If he had to lay orders because it involved subsidiary or primary legislation, clearly he would, in the first place, have to convince the House, which, presumably, is not beyond reason, and, if it was arbitrary, the House would tell the Minister in no uncertain terms that that was so.
However, if the Minister got the measure through the House and at that point it was still thought to be arbitrary, we have built in the reasonableness test exactly to ensure that it would be justiciable so that those who were oppressed, or felt that they had been oppressed, by an arbitrary decision could go to the Court of Session, or some other relevant domestic judicial forum, in order to test and contest that issue.
I understand the point made by the hon. Member for North Essex (Mr. Jenkin) about the part that the courts could play, but speed is the essence of this. If there is a breach of an international obligation, it must be brought to an end as quickly as possible. If it has not been possible to do so through agreement, and one then has to have recourse to the courts, it is right to do so in order to test the reasonableness of the decision that has been taken.
I am sure that my hon. Friend the Member for Linlithgow would recognise that the term "Secretary of State" does not just mean the Secretary of State for Scotland. It means the relevant Secretary of State. If the matter concerned was a breach of an international obligation, it is likely that the Foreign Secretary would bring the matter to the House of Commons and, ultimately, deal with the situation that had arisen.
Mr. Salmond:
A few seconds ago, the Secretary of State said that a Secretary of State would first have to get the matter through the House. By what procedure would that be done? Would it be by affirmative resolution? Given that international obligations are often arguable--the Spanish interpretation of their obligations in fisheries policy is often different from that in the United Kingdom--why should the judgment of an individual Secretary of State on what is or is not an international obligation be superior to that of an entire Scottish Parliament?
Mr. Dewar:
We propose to use the negative procedure. We are talking about a breach of an international obligation; that is not some vague concept amounting to no more than a disagreement about policy. We are talking about a specific breach which is causing acute difficulty to the Government of the United Kingdom and where a solution, in these extreme circumstances, has to be found. Our proposals are not unreasonable.
I wish to refer to the essence of the amendments, and perhaps I could be spared further interventions in the interests of the Committee.
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