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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.

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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-a-vis non-parties, our obligations are governed by customary law. Devolved areas in which such

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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

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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.


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