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Lord Hardie: Perhaps I can explain to the noble Lord, Lord Thomas of Gresford, that, of course,

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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?

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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.]

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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--

Delegations to Europe

(".--(1) When matters in relation to which the Parliament has competence are being discussed between the United Kingdom and any of the institutions of the European Union, the appropriate Scottish Ministers shall be entitled to accompany United Kingdom Government Ministers and to participate in such discussions on behalf of the Parliament.
(2) Where the matters to be discussed under subsection (1) are non-reserved matters that only affect Scotland and do not affect other parts of the United Kingdom, Scottish Ministers shall be the sole representatives of the United Kingdom.
(3) In appropriate cases, on non-reserved matters affecting both Scotland and other parts of the United Kingdom, a Scottish Minister, with the agreement of a Minister of the Crown, may lead the United Kingdom delegation.").

The noble Lord said: Let me first say to the noble and learned Lord, Lord Mackay of Drumadoon, that I well understand his slip of the tongue earlier between "Steel" and "Sewel". He is not the first person to make it. He may be interested to know that a couple of weeks ago I had a telephone message after midnight from a young lady inviting me to telephone her. I did so with curiosity as she was not known to me, only to discover it was a call for the noble Lord, Lord Sewel. In the hope of getting a very good answer to this amendment I shall say nothing more.

We have debated this matter before and we should not go over the whole ground again. The reason we have tabled this amendment is to achieve a little more clarity than we have had in either House so far as to what is to happen when Ministers from the Scottish executive--or Scottish government, as I prefer to call it--are involved in discussions on European Union matters.

What we set out in our amendment is very straightforward. It is what we think the practice should be. First of all, when matters in relation to which the Scottish parliament has competence are being discussed between the UK and any of the institutions of the European Union, the appropriate Scottish Ministers should be entitled to accompany the United Kingdom

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Government Ministers and to participate in such discussions on behalf of the Scottish parliament. I cannot believe that that is particularly controversial.

We go on to suggest that where the matters to be discussed are non-reserved matters which only affect Scotland and not other parts of the United Kingdom, the appropriate representatives to attend such meetings are the Scottish Ministers. We had in earlier debates mention of precedents from the parliaments of Catalonia and Bavaria.

We go on to say that in appropriate cases on non-reserved matters which affect both Scotland and other parts of the UK, a Scottish Minister, with the agreement of a Minister of the Crown, may lead the UK delegation. Again, that is obvious common sense.

If I may refer to a previous debate on this matter, I know that the noble Lord, Lord Mackay of Ardbrecknish, and his colleagues take the view that when it comes to European discussions Scotland does better out of having a Parliamentary Under-Secretary tagging along with the UK Minister. That is a perfectly legitimate point of view. But it is not one that I or many other people share, including the President of the Scottish National Farmers' Union.

My noble friend Lord Mackie of Benshie, who is, as everyone knows, a kindly and benign man, chided me for being a little rough on the noble Lord, Lord Mackay, on a previous occasion on this matter simply because the president of the Scottish NFU happens to have been adopted as the Liberal Democrat candidate for his old constituency. I make a serious point here. I hope he will not make too much of this. We should be pleased that there are people at the top of their professions and occupations in Scotland who are willing to come forward as candidates for the Scottish parliament, regardless of party. I certainly welcome that. They should not be attacked in this House or elsewhere because they happen, in order to get membership of the Scottish parliament, naturally to be affiliated to the party of their choice.

To stick with the issue under discussion, our amendment clarifies what ought to be good practice in future where delegations consisting both of UK Ministers and Scottish Ministers attend meetings of the European Union. I beg to move.

4.15 p.m.

Baroness Strange: I should like to speak to Amendment No. 269, which is similar to Amendment No. 268, although mine applies more specifically to representation at the Council of Ministers. With the enormous importance of both agriculture and fisheries to the Scottish economy, and as so many vital decisions affecting both those industries are decided at the Council of Ministers of the European Community, it is absolutely vital that Scotland and the new Scottish parliament should have a direct voice and say in anything being discussed. Therefore there should be Scottish Ministers included in any United Kingdom delegation which discusses these matters. If the matters discussed would primarily affect Scotland, the delegation should be led by Scottish Ministers. The

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effect of this amendment would mean that, without in any way diminishing the close union between Scotland and England, we in Scotland would still have a direct say in the European matters which closely affect us.

Last Tuesday, on Amendment No. 249A, I understood the Minister to say that the United Kingdom Ministers at the European Parliament would be responsible to the United Kingdom Parliament and would report to the United Kingdom Parliament only, not to the Scottish parliament. This hardly seems fair to the Scottish parliament, or indeed to the people of Scotland.

The Scottish Nationalists have always made a point of direct representation in the European Parliament at ministerial level. If we have this already written into the Bill it would destroy much of the force of their argument.


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