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Mr. Dewar: In the very short time available, I cannot properly answer all those questions. The hon. Gentleman will recall that Government amendment No. 227 provides that the Scottish Parliament can modify the Bill's provisions and sets out the procedures in relation to subordinate legislation made under the Bill, which will be subject to the procedures of that Parliament. It is a narrow point. The Bill contains some prescriptive clauses about procedures. If the Scottish Parliament wants to modify

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them, it is important that there should be a way of doing so. It is not a major point that should concern the hon. Gentleman.

Mr. Heald: I asked about consistency.

Mr. Dewar: I am advised that it will be possible to have consistency, and indeed I have used the word several times. The best thing that I can say to the hon. Gentleman is that I am so advised.

On the consolidated fund and the European Communities Act 1972, I shall unashamedly accept the hon. Gentleman's invitation to write to him. Indeed, I shall tell him a secret: I suspect that someone else will have to compose a suitable letter, but--

It being five and a half hours after the commencement of proceedings on consideration of the Bill, Mr. Deputy Speaker, pursuant to the Order [13 January] and the Resolution [this day], put forthwith the Question already proposed from the Chair.

Amendment agreed to.

Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Amendments made: No. 131, in page 14, leave out line 7 and insert--


'(b) it modifies an enactment in breach of the restrictions in Schedule 4'.

No. 132, in page 14, leave out line 14.--[Mr. Dewar.]

Schedule 4

Provisions of Act not protected from modification

Amendments made: No. 223, in page 58, line 8, leave out from beginning to 'does' and insert--

'Acts of Union

1A. Articles 4 and 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 shall not be modified so far as they relate to freedom of trade.

European Communities Act 1972

1B.--(1) The following provisions of the European Communities Act 1972 shall not be modified:
Section 1 and Schedule 1,
Section 2, other than subsection (2), the words following "such Community obligation" in subsection (3) and the words "subject to Schedule 2 to this Act" in subsection (4),
Section 3(1) and (2),
Section 11(2).
(2) Sub-paragraph (1), read with section 28(2)(b), is to be disregarded for the purpose of determining whether the exercise of any function is within or outside devolved competence.

Human Rights Act 1998

1C.--(1) The Human Rights Act 1998 shall not be modified.
(2) Sub-paragraph (1) does not apply to the modification of sections 12 and 20 of that Act, so far as those sections relate to the exercise of a power by a member of the Scottish Executive.
(3) Sub-paragraph (1), read with section 28(2)(b), is to be disregarded for the purpose of determining whether the exercise of any function (other than a function of making, confirming or approving subordinate legislation so far as it modifies that Act) is within or outside devolved competence.

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(4) Sub-paragraph (3) does not apply to the exercise of a function under any of sections 1, 5 and 14 to 17 of that Act.

This Act

1D. The provisions of this Act shall not be modified.
1E. Paragraph 1D'.

No. 224, in page 58, line 9, after '(6)' insert & 22(7)'.

No. 225, in page 58, line 10, leave out from beginning to 'does' in line 17 and insert--


'.--(1) Paragraph 1D'.

No. 226, in page 58, line 23, leave out 'Section 28(2)(b)' and insert 'Paragraph 1D'.

No. 227, in page 58, leave out lines 28 to 30 and insert--


'. Paragraph 1D does not prevent an Act of the Scottish Parliament modifying--
(a) section 100(1) so far as it relates to the exercise of a power by a member of the Scottish Executive,
(b) section 101(3), (5)(b) and (8),
(c) section 102(5) to (7) so far as relating to the Parliament, and
(d) the reference to instrument in--
(i) the definition of "subordinate legislation" in section 111(1), and
(ii) paragraph 7(2) of Schedule 7.

Enactments modified by this Act

. The amendments of enactments made by paragraphs 1, 3 and 17 of Schedule 7 shall not be modified so far as relating to the Advocate General.
. The effect of section 106(3) in relation to any provision of an Act of Parliament relating to judicial salaries shall not be modified.

Exceptions

.--(1) This Schedule does not prevent an Act of the Scottish Parliament modifying any reference mentioned in sub-paragraph (2) in any enactment (including this Act)'.

No. 228, in page 58, line 31, at end insert--


'the House of Lords'.

No. 229, in page 58, line 35, at end insert--


'the Lord President of the Court of Session,
the Lord Justice Clerk,
the Chairman of the Scottish Land Court'.--[Mr. Dewar.]

Clause 29

Reserved matters


Amendment made: No. 256, in page 15, leave out lines 3 and 4.--[Mr. Dewar.]

Clause 33

Powers to intervene in certain cases

Mr. Ancram: I beg to move amendment No. 1, in page 16, leave out lines 11 to 34.

Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: No. 5, in page 16, line 12, leave out


'(a) which the Secretary of State'

and insert


'which the Secretary of State, having taken legal advice,'.

12 May 1998 : Column 264

No. 6, in page 16, line 13, leave out from 'obligations' to end of line 19.

Mr. Ancram: It is perhaps surprising that, with only one day to go of the 11 days we will have spent on the Bill, we have finally reached clause 33. When the Bill was published, the clause caused a certain amount of consternation, and almost immediately became known as the governor-general clause, or the veto clause. In a Bill otherwise designed to produce and deliver devolution for Scotland, the clause suddenly appears to create an enormous potential road block. For that reason, it is useful to be able to debate it tonight.

The rather draconian amendments that I have tabled are intended to carry the debate. They are probing amendments; I do not seek to delete the clause. That said, I hope to press amendment No. 5, as it is useful.

Given the way in which we have dealt with the delegation of powers from this Parliament to the Scottish Parliament, given all the arguments about sovereignty and the practical restraints on it that might exist in the new set-up, and given the powers that are being transferred to the Scottish Parliament and Scottish Ministers, it is extraordinary suddenly to come across a clause that appears to place draconian powers in the hands of the Secretary of State. Clause 33(1) states:


If there were a clear contravention of international obligations, the Bill would not proceed. None of us would cavil at that, because that power must be within the Secretary of State's responsibility and purview.

Clause 33(1)(b), however, is rather out of tune with the rest of the Bill. It states that if a Bill contains provisions


That is very different. The Secretary of State, a politician, will have the power to decide whether in his view--he will have to state reasonable grounds, which I should like to pursue further--the legislation will have an adverse effect on the operation of some Act that applies to a reserved matter. He will effectively have the power to kill an Act of the Scottish Parliament stone dead.

That power goes beyond the other powers that the legislation places in the hands of the Secretary of State. I would have understood if the Bill had said that the Secretary of State could, for instance, apply to the courts to decide whether a particular piece of legislation from the Scottish Parliament transgressed the interests of an enactment on reserved matters. The Bill does not say that, however; it says that the Secretary of State himself can make that decision.

The point is worth exploring further. If I read clause 101(6) correctly, the Secretary of State could make an order that would be subject to the negative resolution procedure. There would be parliamentary scrutiny of the order, but it would be by negative resolution, although the

12 May 1998 : Column 265

effect of the order would be to prevent a piece of legislation from the Scottish Parliament from being submitted for Royal Assent.

Clause 33(2) states:


Perhaps, if I probe a little, the Secretary of State will provide some reassurance. The Bill says that the Secretary of State can say, "In my view, this piece of legislation will have an adverse effect on a piece of legislation affecting a reserved matter." If, however, he is required to give reasons, or to show that he has been reasonable, what test will he have to meet? I am not an expert on employment law--under which the question of reasonableness is often raised--but I think, and will be corrected if I am wrong, that the person making the judgment must show that there has been a proper inquiry, and that there is evidence on which to base the judgment. In employment cases, where facts will decide the matter, I can see that reasonableness might easily be shown. My difficulty with the clause is that the judgment will often essentially be a political judgment, not one that can simply be based on facts. How is the Secretary of State to set out his reasons, which may be challengeable or unchallengeable, possibly by judicial review? I do not know the answers, for which I look to the Secretary of State, who is seeking advice even as I speak.

Unless there is some control, we are creating, for a Secretary of State who will have almost no other role left on devolution, a power to bring the actions of the Scottish Parliament to a halt. People may ask why I am worried about that, given my views on devolution and the delegation of powers. It is because the purpose of the Opposition throughout the passage of the Bill has been to try to identify the areas in it that could lead to dramatic confrontation between the Parliament and Government in Edinburgh and the Parliament and Government in London. I can see within this draconian power--were it used in a way that ran counter to the wishes of the Scottish Parliament--the epitome of such a confrontation. What will be the criteria by which the Secretary of State will make the judgment. What will be the restraints on the Secretary of State in making it? In what ways can he be challenged?


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