HL Deb 30 July 1998 vol 592 cc1621-30 (" . A Community obligation of the United Kingdom is also an obligation on the Scottish Executive if, and to the extent that, the obligation could be implemented (or enabled to be implemented) or complied with by the exercise by the Parliament of any of its functions.").

The noble Earl said: In moving Amendment No. 260 I wish to speak also to Amendment No. 261. In Clause 53 the parliament of Scotland must comply with any Community obligations in the same way as this Parliament at Westminster has to do. Clause 54 mentions the Secretary of State, although we already know that when the Scottish parliament is established his or her position is somewhat doubtful. In complying with international or Community obligations governments from time to time have had to introduce retrospective legislation. The object of this amendment is to ensure that no person in the broadest sense of the meaning of "person" is guilty of an offence where the law is changed by retrospective legislation. I hope that the principle I have put forward will be seriously considered by the Government. I beg to move.

The Earl of Mar and Kellie

My Amendment No. 260A is grouped with the one we are discussing. It refers to the powers of the Secretary of State to prevent or require action with regard to Scottish parliamentary legislation. The purpose of Amendment No. 260A is to clarify Clause 54(1), which refers to international obligations by adding the words "Community law" to international obligations.

The need for this amendment stems from the definition of "international obligations". Clause 112(10) defines it as, obligations … other than … under Community law". If the clause remains unamended, the Secretary of State will not have the explicit power to require action on legislation which does not comply with Community law. Although Clause 53 refers to Community law, it does not seem expressly to empower any action by the Secretary of State to remedy errant legislation. This amendment makes the issue abundantly clear.

Baroness Ramsay of Cartvale

I understand the thinking behind the amendments in this group, but we are satisfied that we have already provided a robust legislative framework to ensure that EU obligations are properly fulfilled by the Scottish parliament and the Scottish executive. The noble Earl, Lord Balfour, has suggested in Amendment No. 260 that a clear statement should appear on the face of the Bill to the effect that community obligations extend to the Scottish executive. The general transfer of functions in Clause 49 already achieves that.

Any obligation upon Ministers of the Crown to observe and implement Community law within devolved competence is transferred to Scottish ministers by Clause 49. Scottish ministers will therefore be liable to implement community obligations within devolved competence and be responsible for any failure to do so under EU law. Scottish ministers will also be liable for the same penalties as UK Ministers if they fail to observe or implement Community obligations. All that is confirmed by Clause 53(1), which provides that, Despite the transfer to the Scottish Ministers by virtue of section 49 of functions in relation to observing and implementing obligations under Community law, any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972". Ministers of the Crown do not lose their powers to implement Community law in relation to devolved matters but continue to be able to exercise any function as regards Scotland for the purposes of implementing Community law. In other words, Ministers of the Crown have concurrent powers with Scottish ministers. Furthermore, Clause 53(2) requires a member of the Scottish executive to act only in accordance with Community law. Clause 28(2)(d) also makes it clear that legislation of the parliament must be compatible with Community law.

Any breach of Community law by a member of the Scottish executive, whether constituted by some action or failure to act or by some subordinate legislation made by that member, is one of the devolution issues which are subject to the special procedures in Schedule 6. While I understand the noble Earl's intention, I think his amendment is unnecessary and I hope that in the light of my explanation he will feel able to withdraw it.

The effect of Amendment No. 260A would be to extend the power of UK Ministers to prevent or require action in relation to the UK's international obligations, to cover Community obligations. It would be inappropriate and unnecessary to include a reference to Community obligations in Clause 54. Clause 54 refers to international obligations because that is the only way in which the UK Government can ensure observance of international obligations by the Scottish executive. It is not possible, for example, to make this a vires issue which can be adjudicated by the courts because the courts generally do not take cognisance of any international obligations unless they are incorporated into domestic law.

However, that does not apply in the case of Community law because that is part of our domestic law and our courts can, and must, have regard to it and enforce it. As I have pointed out already, the Bill requires the Scottish executive to comply with Community law and its failure to do so can be adjudicated by the courts.

These provisions make it unnecessary to extend the power of intervention to include Community obligations—‹there is no scope for the Scottish executive to derogate from the same essential requirements to comply with Community law that bind the UK Government. With that explanation, I invite the noble Earl to withdraw the amendment.

I can fully appreciate the noble Earl's reasons for introducing Amendment No. 261. However, in our view it is unnecessary. An order made under this provision may require action to be taken by a member of the Scottish executive to implement international obligations in so far as the member of the Scottish executive has power to take the required action retrospectively, the Secretary of State can require him to do that. If the member of the Scottish executive did not have power to take retrospective action there would be no point in the Secretary of State's order having retrospective effect. In the light of what I have said I ask the noble Earl to withdraw the amendment.

3.45 p.m.

The Earl of Balfour

My Lords, I am grateful to the noble Baroness for having explained the position. I was particularly concerned about someone being considered guilty of an offence retrospectively. I did not want to see that happen. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 [Power to prevent or require action]:

[Amendment No. 260A not moved.]

Lord Mackay of Drumadoon moved Amendment No. 260B:

Page 23, line 45, after ("international") insert ("treaty").

The noble and learned Lord said: With the leave of the Committee I shall speak also to Amendments Nos. 260C and 260D, 261A, 262A and 263A. These amendments fall into two groups. First, Amendments Nos. 260B, 262A and 263A seek to introduce the word "treaty" between the words "international" and "obligations" where they appear in Clause 54 and elsewhere in the Bill.

The purpose of the amendments is to make it clear that when the Bill refers to international obligations, it refers to legal obligations which are binding on the United Kingdom as a matter of international law. The concern is that unless the term is more carefully defined it might be construed to cover all sorts of understandings, and indeed moral obligations, which emerge from discussions involving Foreign Office Ministers, members of the Diplomatic Service or Foreign Office officials in the course of their duties.

Similar concerns arise out of the introduction of the terms "interests of defence" and "interests of national security" which now form part of the provision as a consequence of government amendments moved earlier. Clearly, the full ramifications of these amendments will require consideration during the Recess by those of us participating in these debates.

The practical consequence of the concern is this. If these terms remain as general as they are it will be possible for the Government, without any reference to Parliament whatsoever, to expand upon the extent to which the Secretary of State in terms of his powers under Clause 54 can interfere with the Scottish executive's exercise of the functions that lie within its competence. This matter was raised in our debates on Tuesday by my noble and learned friend Lord Fraser of Carmyllie. The noble Lord, Lord Steel, undertook to reflect and write on it over the Recess. That takes the discussion—

Lord Steel of Aikwood

With great respect, I did nothing of the kind.

Lord Mackay of Drumadoon

I beg the noble Lord's pardon. I was in error in thinking that the noble Lord, Lord Steel, intended to do anything over the Recess—except of course, engage in a little fishing. I do not think he will be alone.

The purpose of the other amendments is slightly different. They provide that if the Secretary of State is of the view that the Scottish executive has acted or refused to act in a way which is incompatible with international treaty obligations or incompatible with national security or defence interests, he should have two options. One option is to go to the court and seek a declarator that the Scottish executive has acted in such a way. The alternative would be for him to have an order-making power in his own right to take the action which is necessary—an expansion of the power which he already has in terms of subsection (4).

My concern is that his order-making powers in subsections (1) and (2) which enable him to direct the Scottish executive to take action or refrain from taking action will be perceived to be the powers of a colonial governor. If they were ever used and if they exist and the use of them could be threatened, it would serve to provoke friction between the Scottish executive and the United Kingdom Government, where there is a concern that the Scottish executive's actions could be or are perceived to be incompatible with the three terms to be found in the Bill.

It should be a clear-cut choice for the Secretary of State. In such a case he should raise the matter with the court and seek a declarator. It may be a complicated action to bring and it may be a complicated matter for the court to decide. But as I understand orders under Clause 54 to be subject to judicial review, these are the kind of difficult legal issues which the court may require to deal with in any event. He should have these two routes, either to go to the court or to act on his own hand. The idea of him directing the Scottish executive on what to do is not compatible with common sense or the hope that the executive and the Government will work profitably and fruitfully together in the future. I beg to move.

The Chairman of Committees (Lord Boston of Faversham)

As Amendment No. 263A is also being spoken to, I must point out to the Committee that if that amendment is agreed to I cannot call Amendments Nos. 264 to 266 inclusive.

Lord Thomson of Monifieth

We await with interest the Government's response to these amendments which raise some rather erudite questions of both domestic and international law. Am I right in feeling believing in connection with the phrase "international obligations" in the Bill, that it is designed to cover a wider range of possibilities than simply treaty obligations? Do we not have general obligations under customary international law? It is the international equivalent, I suppose, of common law, or binding Security Council resolutions or decisions of international tribunals, such as the International Court of Justice. On that at the moment I am content with what I guess may be the Government's position.

On the other matter, I await the answer with interest. The mind boggles at the idea of the Secretary of State, in the new post-Scottish parliament situation, sitting in Dover House acting as a colonial governor. It seems to defy common sense to me.

Lord Hylton

On the grounds that everything possible should be done in advance to try to prevent conflict between different levels of government within the United Kingdom which may be governments of different political complexions, I am inclined to support the thrust of this group of amendments.

Lord Rodger of Earlsferry

Arising out of what has been said, it has been stressed that yet again there are legal minefields ahead. It might be helpful if the Government reflected over the Recess on whether anything could or should be done to assist the courts when, for example, they are faced with questions as to what international obligations are. As the noble Baroness pointed out, it is not usual for domestic courts to become involved in questions of international law and what constitutes an international obligation.

I am not clear how it is envisaged that it will be handled if there were a judicial review such as is contemplated by the noble and learned Lord, Lord Mackay of Drumadoon. It is obviously possible, or given the idea of reasonable grounds it looks possible. For that reason, therefore, it might be for consideration whether anything requires to be done as to the way in which such international obligations could be proved and how the courts could look at international obligations. I should also be interested to know whether it is envisaged that some kind of certificate system would be used in order to signify what the interests of defence and national security were thought to be by the Secretary of State.

Lord Hardie

As has been observed, Clause 54 enables the Secretary of State, by order, to require the Scottish executive to take or desist from action in respect of international obligations or to revoke subordinate legislation that he has reasonable grounds to believe to be incompatible with international obligations.

The noble and learned Lord's amendment would restrict those powers so that they were only available for treaty obligations. The noble Lord, Lord Thomson of Monifieth, was correct and, for the reasons outlined by him, the Government do not believe that it would be right to restrict the powers to such limited obligations.

The effect of the amendment would be to leave the United Kingdom Government unable to enforce those international obligations which arise under customary international law. These are just as important and just as binding on the United Kingdom as our treaty obligations. Indeed, even where matters are generally governed by multilateral treaties, in fields such as diplomatic immunity, the law of the sea or human rights, not all states are parties to the treaties in question. Vis-à-vis non-parties, our obligations are governed by customary law. Devolved areas in which such obligations might be found include: fisheries and marine pollution; immunities of foreign states; immunities of diplomats and consuls from states not party to the Vienna Conventions.

I hope that in the light of this explanation, the noble and learned Lord will agree that it would not be appropriate to restrict the Secretary of State's powers of intervention in the way proposed by him. I ask him to withdraw the amendment.

As for the concept of the United Kingdom acting as a colonial power in relation to Scotland I would not accept that that is a fair interpretation to put upon the right of the Secretary of State to intervene in such matters.

The Committee will be aware that foreign relations are a reserved matter and will remain the responsibility of the United Kingdom Government and Parliament. In any scheme of devolution, that must be so. To give effect to our international obligations, it is essential that this power is available to the Secretary of State.

Having said that, again I wish to express my hope and optimism that the situation will not arise. I am sure that the Scottish parliament will endeavour to ensure that its legislation is not incompatible with the United Kingdom's international obligations.

Amendments Nos. 260C and 260D would replace the order-making power of the Secretary of State in regard to compliance with international obligations with a power for the courts to rule on such matters. As my noble friend Lady Ramsay of Cartvale has already observed, and the noble and learned Lord, Lord Rodger of Earlsferry, alluded to it, it is not normal for domestic courts to take cognisance of international obligations. It is for that reason that the Bill proceeds in the way that it does. Before the Secretary of State can intervene, he must have reasonable grounds for that belief—that is, that the obligation has not been complied with—and obviously those grounds may be challenged by way of judicial review.

The Government feel that the powers given to the Secretary of State in this regard are entirely appropriate. To deal with the question raised by the noble and learned Lord, Lord Roger of Earlsferry, in relation to the approach to be taken by the courts, I hope that my explanation of what international obligations encompass will be of some assistance to the courts should any challenge ever arise.

In determining the question of whether the Secretary of State had reasonable grounds, one would expect the court to apply the same standards and tests as it does in reviewing the decision of any other authority which is obliged to have reasonable grounds before taking action. As I said, the question of the role of the courts and its relationship to Parliament is a matter which is being considered and hopefully will be clarified in that regard as well as others before we reach the next stage of the Bill.

In relation to Amendment No. 261A, the Secretary of State can by order require the Scottish Ministers to take action to implement an international obligation. Where an obligation relates to reserved matters the UK Government will of course implement it in any case across the United Kingdom. I suggest that the powers already envisaged for the Secretary of State in this regard are already sufficiently wide and I invite the noble Lord to withdraw the amendment.

Amendment No. 263 seeks to delete the order-making power of the Secretary of State to revoke subordinate legislation of the Scottish parliament under Clause 54(4)(b). That power, which has already been modified by government Amendments Nos. 264 and 266, as the noble and learned Lord observed, is necessary to provide safeguards where Scottish legislation could have adverse effects on the law as it applies to reserved matters. As I have already said, these powers are meant to be longstops and their use would require to be justified and would be liable to scrutiny by judicial review.

I ask the noble and learned Lord to withdraw the amendment.

4 p.m.

Lord Thomas of Gresford

I did not entirely follow the argument of the noble and learned Lord the Lord Advocate. In Schedule 6, Part I, paragraph 1 says "devolution issue" includes, at (d), a purported or proposed exercise of a function … by a member of the Scottish Executive [whether it] is, or would be, incompatible with any of the Convention rights or with Community law". It is envisaged therefore that the Scottish courts would be considering incompatibility of Scottish legislation with the human rights convention and with Community law made in Europe. Therefore, although the Scottish parliament is not charged with Community law, nevertheless the courts are required to consider incompatibility in that context.

However, in addressing Amendments Nos. 260C and 260D, the noble and learned Lord said that the Secretary of State is to have this fairly draconian power of acting upon his own belief—that is what subsections (1) and (2) of Clause 54 actually say—checked only by judicial review. The reason given for that was that the Scottish courts do not have anything to do with the construing of international law. Yet, if there is judicial review of the exercise of that power by the Secretary of State, what is to be considered save the competence of the Scottish legislature to take either a proposed action or to legislate the competence, having regard to its compatibility with those very international obligations which the noble and learned Lord said would not be within the competence of the Scottish courts?

Therefore, on judicial review, using that machinery, the Scottish courts will consider compatibility with international obligations. Under Schedule 6 as a devolution issue, the Scottish courts will construe the competence of Scottish legislation having regard to the convention rights or Community law. But the right of the Secretary of State to act on his own belief is still maintained in that context. I see no logic in that and suggest that the noble and learned Lord ought to consider further the logic that may lie behind his explanation.

Lord Hardie

Perhaps I can explain to the noble Lord, Lord Thomas of Gresford, that, of course, Community law is in a different category from international law. Clause 54 considers the question of international obligations. The question for the court would not be whether the actions of the Scottish parliament were or were not compatible—that would be asking the court to substitute its decision for the decision of the Secretary of State—but whether the Secretary of State had reasonable grounds to believe that the proposed action was or was not compatible. Applying the Wednesbury test and that line of authority, the court would only interfere if it concluded that the Secretary of State had acted in a way which no reasonable Secretary of State could have acted, or had acted in a capricious manner. The noble Lord will be well aware of the line of authority to which I refer.

Lord Thomas of Gresford

Of course, but in considering whether there are reasonable grounds to believe that there is an incompatibility, what else can the court do but look at the international obligations and set against them the proposed action or the proposed legislation with which the Scottish parliament is concerned, and come to a conclusion as to whether that compatibility exists? It seems to me that on judicial review the Scottish courts will be bound to consider that issue one way or the other.

Lord Hardie

That would be a fact that the court would take into account—looking into the international obligations and the proposed action of the Scottish parliament—but it would also take into account any other factors that the Secretary of State may have taken into account in reaching his or her decision. That would be the test; not whether or not the action was incompatible, but whether, on the information before the Secretary of State, the Secretary of State had reasonable grounds to believe that it was incompatible.

Lord Rodger of Earlsferry

The noble Lord, Lord Thomas of Gresford, put the point rather more clearly than I put it when I made my intervention earlier. I was asking how it was that the court, which could not normally consider matters of international obligation, when it came to judicial review would be furnished with the power, the knowledge of this international law and the right to consider this international law in the context of judicial review.

The point which I understand the noble Lord, Lord Thomas, to be making is if, in the context of judicial review, the court is going to be seized necessarily with comparing the action with the rights and obligations under international law, why is it thought to be wrong for the courts simply to test the subordinate legislation in question against those self-same obligations under international law which it will have to consider any way in judicial review?

Lord Hardie

The question as to whether there are reasonable grounds for believing that it is incompatible is quite different from a purely legal issue of comparing an international obligation with the text of the Scottish provision.

As I indicated, it may well be a factor for the court to look at the two provisions, but the real issue is to look at what was before the Secretary of State before he or she reached the conclusion that he or she had reasonable grounds to believe that the action was or would be incompatible.

Lord Mackay of Drumadoon

I hope that the noble and learned Lord will reflect on what has been raised today. If I may respectfully say so, what the noble Lord, Lord Thomas, and the noble and learned Lord, Lord Rodger, have said seems to have considerable force. Whether the Court is considering whether the action of the Scottish executive is incompatible with international obligations or whether it is considering that the Secretary of State had reasonable grounds for believing that the action of the Scottish executive was incompatible with international obligations, the Court has to address its mind to the issue of what is meant by the term "international obligations" and what in the context of the case before it is the international obligation in question which gives rise to the incompatibility. If one uses the term "national security", what is the aspect of national security which gives rise either to the existence of the incompatibility or the existence of reasonable grounds for believing that there is such an incompatibility?

I remain concerned about the Secretary of State directing a member of the Scottish executive to do anything. As the noble and learned Lord was responding to the debate, a point struck me which I had not thought of earlier. If having been ordered to do something or to stop doing something by the Secretary of State, what happens if the member of the Scottish executive just continues as before and, for whatever reason, says, "I am not taking instructions in this manner"? I wonder whether it might not be better to give the Secretary of State the power contained in one of my amendments.

It is clear from what noble Lords on the Government Front Bench have been saying, both on Tuesday and this afternoon, that this clause will be the subject of reflection over the Recess. Letters are to be sent and I am sure replies will also be sent. When we return to this in October it might be possible to see a way through the practical problems which this grouping of amendments has raised. On that basis, I seek leave to withdraw Amendment No. 260B.

Amendment, by leave, withdrawn.

[Amendments Nos. 260C to 261A not moved.]

Lord Sewel moved Amendment No. 262:

Page 24, line 10, leave out ("would") and insert ("to").

On Question, amendment agreed to.

[Amendment No. 262A not moved.]

Lord Sewel moved Amendment No. 263:

Page 24, line 11, after ("obligations") insert ("or the interests of defence or national security").

On Question, amendment agreed to.

[Amendment No. 263A not moved.]

Lord Sewel moved Amendment No. 264:

Page 24, line 12, leave out from ("which") to ("which") in line 15 and insert ("make modifications of the law as it applies to reserved matters and").

On Question, amendment agreed to.

Lord Sewel moved Amendments Nos. 265 to 267:

Page 24, line 16, leave out ("would") and insert ("to").

Page 24, line 17, leave out ("an enactment") and insert ("the law").

Page 24, line 19, leave out ("revoking the legislation") and insert ("making the order").

On Question, amendments agreed to.

Clause 54, as amended, agreed to.

Lord Steel of Aikwood moved Amendment No. 268:

After Clause 54, insert the following new clause—