§ Mr. JenkinI beg to move amendment No. 441, in page 52, line 6, after 'international', insert 'treaty'.
The ChairmanWith this, it will be convenient to discuss the following amendments: No. 442, in page 52, line 11, after 'international', insert 'treaty'.
No. 443, in page 52, line 15, after 'international', insert 'treaty'.
No. 444, in page 52, line 27, after first 'international', insert 'treaty'.
No. 445, in page 52, line 27, after second 'international', insert 'treaty'.
No. 446, in page 52, leave out lines 29 to 31 and insert 'obligations under Community law.'.
§ Mr. JenkinThe clause is similar to clauses 105 and 106, except that clause 107 refers specifically to other international obligations. Our amendments are intended to make it clear that international obligations comprise treaty obligations.
I have some questions for the Minister. When is an international obligation an international obligation, if it is not a treaty obligation? Could he give an example of an international obligation that is not a treaty obligation? Under what circumstances do the Government envisage 919 that they would impose a non-treaty international obligation on the assembly? That is what the clause gives them the power to do.
To some extent amendment No. 446 revisits the issue already addressed by my hon. Friend, so I will not address it again.
§ Mr. Win GriffithsThat was a succinct introduction to the amendments. I am grateful for the clarity with which the hon. Gentleman made his points, especially as I have an answer to them.
Clause 107 ensures that my right hon. Friend the Secretary of State has the power to prevent the assembly from carrying out acts that are incompatible with the international obligations of the United Kingdom, other than Community law obligations and obligations not to do with acts incompatible with any of the convention rights that we have just discussed.
However, the United Kingdom has other international obligations that have not all been incorporated in domestic legislation. Hence the need for the reserve power in clause 107 to allow my right hon. Friend to intervene if the assembly is considering undertaking an incompatible action or has already undertaken it.
Given the interrogative nature of the hon. Gentleman's remarks, I assume that this is a probing amendment to find out what we have in mind. Not all the international obligations of the United Kingdom are in the form of a treaty. Some take the form of conventions, protocols or heads of agreement—for example, those that his own Government negotiated, the Rio declaration on the environment and development; Agenda 21, a programme of action for sustainable development also agreed at the Rio summit; and the more recent convention for the protection of the marine environment for the north-east Atlantic. None of those is a Treaty.
Amendments Nos. 441 to 445 would leave the United Kingdom Government without the power to deliver certain obligations to which they had committed themselves, to the extent that those obligations fall to the assembly's remit. That is why we have used the word "obligations" in preference to "treaties". Not all the commitments made by the United Kingdom are enshrined in treaties at an international level. By using the word "obligation", we are able to ensure that matters arising out of the Rio summit, for example, can be taken on board and acted on by the assembly.
§ Mr. Rhodri MorganI shall ask my hon. Friend a few further questions arising from my reading of the impact of the Opposition amendments on clause 107. It is an important clause, especially because of the expanding field of environmental obligations, many of which we refer to loosely as treaties, but which are not in fact treaties.
People talk about the Rio treaty—which, as my hon. Friend noted, is not a treaty—and the two subsidiary agreements, the bio-diversity agreement and the global warming convention. I am not sure whether I have used the right terms, but the agreements are frequently referred to as parts of a treaty, perhaps because of the importance of the people who attended the Rio summit and signed the agreement, including the President of the USA and the Prime Minister of the United Kingdom.
920 The Conservative amendments, if I read them correctly, would confine the then Prime Minister—no longer such a figure of importance—who signed the agreement on behalf of the United Kingdom Government. If the amendments were accepted, they would remove from the Welsh assembly any obligation to act pursuant to the Rio summit, because the agreements are not treaties.
That is probably not what Conservative Front-Bench Members want. If their Prime Minister signed the Rio summit documents bringing into being a British obligation to comply with them, presumably they consider them important, but their amendments would render the agreements useless in the context of the Welsh assembly. The amendments would exclude any agreement that was not formally a treaty from the obligations that the Welsh assembly would have to follow and which, as a reserve power, the Secretary of State could instruct the assembly to carry out.
That raises an interesting issue that has not yet been touched on. What if the Secretary of State himself were in breach of those treaty—or let us say convention or protocol—obligations? The outstanding example is exactly pursuant to the Rio summit, when there was the bizarre situation of a difference in interpretation of the obligations of the UK Government for Wales and for England by the then Secretary of State for the Environment and the then Secretary of State for Wales, the right hon. Member for Wokingham (Mr. Redwood).
The then Secretary of State for the Environment, the right hon. Member for Suffolk, Coastal (Mr. Gummer), interpreted the Prime Minister's signature to the global warming convention as requiring him to issue a new series of planning policy guidance notes, one of which said that henceforth there would be no more out-of-town shopping centre developments in England, as they would lead to an increase in car exhaust emissions and thus contravene the global warming policy.
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However, the then Secretary of State for Wales, who was part of the same unitary state—as we often say in this debate—and a member of the Cabinet led by the Prime Minister who had signed the Rio summit agreement, took an entirely different view and said, "In Wales, we shop till we drop." He welcomed those frustrated property developers—who were no longer able to build out-of-town shopping centres in England—to Wales with open arms, and refused to issue a parallel planning policy guidance note. As a result, there was total confusion among property developers, lawyers and planning consultants. Although it was the same country under one Prime Minister who had signed the agreement, there were two opposite interpretations of what constituted acceding to the obligations.
Looking forward 50 years—when we might see the return of a Conservative Prime Minister and therefore a Conservative Secretary of State for Wales—what will happen if that Secretary of State were in breach of any kind of reasonable understanding of the obligations? In other words, what if—it is the sort of scenario that we present when we are trying to send the children quietly to bed—the right hon. Member for Wokingham were to return as Secretary of State for Wales? What if he places a bizarre and completely off-the-wall interpretation on our protocol or convention obligations, particularly regarding environmental law?
921 I must press the Minister on that issue. How will we guard against the completely off-the-wall interpretations of future Conservative Secretaries of State for Wales—in the unlikely event, possibly after I have departed this mortal coil, that the Conservatives are returned to power? Such a person would not be a suitable judge of whether the assembly were abiding by international environmental obligations. He could hardly ensure that the assembly complied with those obligations if he did not comply with them also. In that case, we would look to the assembly to ensure that the Secretary of State abided by international environmental obligations. It is not only a matter, as the clause implies, of the Secretary of State acting as a policeman and trying to ensure that the assembly complies with international environmental obligations.
If the Minister can answer that point clearly, succinctly and convincingly, I promise not to ask him any questions about the Cardiff bay barrage.
§ Mr. Win GriffithsI thank my hon. Friend the Member for Cardiff, West (Mr. Morgan) for that contribution, and for his piercing question regarding the actions of a previous Secretary of State for Wales. I thought initially that he intended to raise the subject that he has said he will not mention.
As to the question of out-of-town shopping centres in Wales, we have made it clear that a test must be applied in order to determine whether such planning applications may go ahead. Our inspectorate has examined several such applications.
It is a fairly simple and straightforward process. If the assembly considered a future Secretary of State for Wales to be in breach of a convention, such as the Rio biodiversity agreement, it could request a judicial review—as could anyone with an interest in such matters. In other words, if the Secretary of State believed that the assembly was acting within the terms of an international obligation but the Friends of the Earth or the Royal Society for the Protection of Birds thought that it was not, there would be an opportunity for a judicial review. In the end, that is the backstop position regarding any Government action that is deemed to contravene our international obligations.
§ Mr. Rhodri MorganWhether the Secretary of State for the Environment in England or the Welsh assembly is in compliance with environmental protocols or conventions is frequently a unilateral matter for them to decide. It is difficult to envisage a judicial review challenge succeeding, because it is for the Government to decide whether they have complied with the obligations of the global warming convention or the biodiversity agreement, for example. For instance, the Government may decide to introduce the grizzly bear to Snowdonia saying, "We have done this in pursuance of what we believe to be our obligations under the biodiversity agreement." That is the difficulty.
§ Mr. GriffithsThat is a matter of judgment. Anyone who thought that the Secretary of State or the National Assembly for Wales was breaking an international obligation could seek a judicial review. It would then be for the judge to decide whether the Government or the assembly had acted unreasonably and ignored its obligations under some international agreement.
§ Mr. JenkinI am grateful to the Minister for his explanation, which I think the Committee found 922 illuminating. It is certainly not the policy of Her Majesty's Opposition to create a situation whereby we are in breach of any international obligations—least of all those with such noble aims as Agenda 21 and other international environmental agreements.
The hon. Member for Cardiff, West (Mr. Morgan) once again demonstrated his talent for extending our deliberations. I have a button on my computer that allows one to precis a text. I wonder how short the hon. Gentleman's speech would have been if I had entered it into my computer and then pressed that button—but I digress.
I must raise a serious point about the nature of clause 105 and other similar clauses in the Bill. We enter into international obligations under the royal prerogative. The House finds it difficult to regulate that process, as we interfere with the exercise of the international prerogative upon the initiative of the House rather than by way of the Government seeking leave of Parliament to exercise the prerogative. Treaties and international obligations are laid on the table under the Ponsonby rule.
The effect of entering into international obligations—be they treaty obligations as suggested by our amendment or other obligations—is to strip the Welsh assembly of its powers. Every new international obligation effectively creates a new reserved area, which is a no-go zone for the Welsh assembly. The Secretary of State may, by order, direct the assembly to take a certain action or to abstain. We should bear that in mind.
§ Mr. GriffithsIf I have understood his comments correctly, the hon. Gentleman implies that the Secretary of State would be the prime mover in such matters. Clause 107 gives the Secretary of State the power to intervene if the assembly does not fulfil the international obligations for which it has some responsibility under the Bill. It is not for the Secretary of State to take these powers to himself, but to keep a watchful eye on the assembly to ensure that it is using its powers appropriately.
§ Mr. JenkinI understand the thrust of the Minister's comments. I am postulating a slightly more advanced scenario, which is that the Government will be entering into international obligations purposefully to enable the Government to take powers over the assembly. That may seem far-fetched, but let us consider it in the context of the example given by the hon. Member for Cardiff, West, which involved a planning issue. Let us suppose that the assembly had plans to enter into a certain type of development which the Government regarded as unethical or contrary to the environmental purposes of their policies. They could enter into an international agreement to oblige them to exercise by order a prohibition on the assembly. It is a constitutional conundrum that new international obligations could be entered into by the prerogative of the Crown without the usual scrutiny of Parliament, thus giving the Secretary of State power by order to circumscribe the powers of the assembly.
§ Mr. GriffithsI felt quite happy with the way in which the hon. Gentleman was presenting his argument in the early and middle stages of the debate. At the end, however, he spoiled his argument by taking it to absurd lengths. It is perhaps an example of what has happened on other occasions when there has been a triumph of form over substance. I ask the hon. Gentleman to think twice 923 about the idea that, to deal with a planning matter, the United Kingdom Government would scurry around the world looking for an international obligation that they could enter into to stop the assembly carrying out an act that came within planning law. That is absurd.
Setting that aside, the arguments that the hon. Gentleman advanced on other matters were well made. I hope that I have been able to explain to him the intentions that lie behind the clause and why it is important to keep the clause in its substance.
§ Mr. JenkinI am embarrassed that I have upset the Minister. I thought that we were developing a good relationship. Before it goes any further awry, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 107 ordered to stand part of the Bill. Clause 108 ordered to stand part of the Bill.