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Mr. Browne: The basis on which this power can be used by the Secretary of State is clearly set out in the words that the right hon. Gentleman himself read to us. Under clause 33(1)(b), the Secretary of State must have "reasonable grounds to believe" that a certain state of affairs exists. There is no suggestion that he merely needs to hold a view; he must have reasonable grounds to believe. He must thereafter set out the reasons why he believes that he has reasonable grounds.

Mr. Ancram: The hon. Gentleman is a member of my profession; I should have thought that we should have reasonable grounds to hold a view. There is no identification or definition of what the reasonable grounds are. Such decisions will often be taken on neat little points involving much subjective political judgment. That is when such a provision will lead to confrontation.

Mr. Hogg: Is there not a further problem? The requirement is not that the Secretary of State believes

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something, merely that there are "reasonable grounds to believe" something. It might be more reasonable to impose on the Secretary of State an obligation actually to believe the state of affairs set out in the statute.

Mr. Ancram: I am grateful to my right hon. and learned Friend, who makes my point with even more force. I do not want take up too much time, because other hon. Members wish to speak. I am trying to provide a reasonable and simple solution. The Secretary of State should not be allowed to make such a judgment on his own because of the difficulties that I have identified: he should be required to take advice. In amendment No. 5, I suggest that the Secretary of State should take legal advice before he reaches a judgment--just as it might have been better had an ability to refer the matter to the courts been created.

Mr. Wallace: If I recall correctly, on Second Reading I asked the Secretary of State whether any decision under the clause would be judicially reviewable, and he said that it would. Is that not a sufficient safeguard?

Mr. Ancram: I am not certain from my experience of judicial review that I necessarily regard it as a safeguard. It is a way of achieving a remedy. The Secretary of State laughs, but if the law is to be the protection, the sensible thing would have been to create a power for the Secretary of State to refer the question to the courts in the first place. In the absence of that power, my suggestion that he should be required to take legal advice so that he is acting on more than his own judgment represents a sensible compromise.

The clause as it stands creates, and places in the hands of the Secretary of State, an enormous power which, if abused--which is my fear--could lead to a massive confrontation between this Parliament and the Scottish Parliament. I am trying to avoid such a confrontation. That is why I tabled the amendments, and I ask my hon. Friends to support them, particularly amendment No. 5.

10.15 pm

Mr. Dewar: I shall speak reasonably briefly, because I recognise that many other hon. Members want to speak. I want to put a point of view to the House, as that would inform the debate. This is an important debate and I entirely accept that the clause deserves attention. I have no complaint about what the right hon. Member for Devizes (Mr. Ancram) has said and it is proper that we should probe this question, using as a basis for our debate the rather sweeping, albeit perfectly legitimate, amendments that he has tabled.

The clause refers to the Secretary of State. I make no complaint, but everyone jumps to the conclusion that that will be the Secretary of State for Scotland. That is not necessarily true; it is any Secretary of State. This is one case where I can say, "Not me, guv." If the decision to proceed to use the machinery was within the remit of the Secretary of State for Social Security, he or she would be the Secretary of State who took the decision and came to the House with the invitation to it to act in the way the clause describes. The matter is subject bound: "Secretary of State" is not a prescriptive description of one member of the Government.

Mr. Alasdair Morgan: Taking that comment in conjunction with the right hon. Gentleman's earlier

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assurance that such decisions, on reasonable grounds, would of course be subject to judicial review, if the Secretary of State was not the Secretary of State for Scotland but another of the Secretaries of State in this Parliament, in which courts would a judicial review take place--the English courts or the Scottish courts?

Mr. Dewar: That might be a matter of choice. [Hon. Members: "Oh."] That is not really surprising--what a shriek. As I understand it, those decisions would certainly be justiciable in the Scottish courts, but may I return to that point in a minute if the hon. Gentleman is not satisfied with that answer?

Let me explain what the clause is all about. We have a situation in which there is a division of responsibility as between reserved and devolved powers. If one takes a simplistic view, one might say that the writ of the Scottish Parliament runs in devolved areas and that there will be reserved areas with which the Scottish Parliament cannot meddle and where its writ does not run. That is the general description of the scheme: a division of responsibilities with strength and internal logic. However, the world of politics and of legislation is not as neatly divided as that--there are no exact demarcations or neat barriers that cannot be crossed--so legislation in a devolved area of responsibility will often have implications for reserved areas and reserved functions.

We had to consider whether we stood pat on the fact that, if there was some effect on a reserved matter, it would not be competent for the Scottish Parliament to continue, or whether we should find some way of building in a safeguard, so that a knock-on effect was not an abuse of process or something that would cause problems in a reserved area. Although I understand the right hon. Gentleman's point, the power is not a blocking mechanism. I would rather see it as an enabling mechanism, because if we do not have such a piece of machinery--we can argue about the detail--we will be in great difficulties. The Scottish Parliament might find that its room for action was greatly inhibited because almost any legislation in Scots private law--to which, hon. Members will recall, clause 33(1)(b) refers--would have an impact on reserved powers or reserved responsibilities. Many United Kingdom responsibilities operate, by definition, in Scotland, and would therefore be subject to Scots private law.

I was not prepared to take the rather narrow view that, if there were a reaction, that legislation would probably be called incompetent or would be open to challenge. We therefore sought a balanced way to ensure that the competence of the Parliament--its range of responsibilities--would be exercisable and at the same time would not give rise to abuse.

Sir Teddy Taylor (Rochford and Southend, East): Will the Secretary of State give way?

Mr. Dewar: I will give way in a moment, but this point is important.

We have struck an important balance in the clause. The Secretary of State will have recourse to the power, but it will be subject to a number of important safeguards. The first is that he or she must believe that there would be an adverse effect on the operation of an enactment as it applied to reserved matters. Secondly, the

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reasonableness test is built in. There is also the important safeguard that if the power is to be used, a majority in this House must be in favour, and that would not be given lightly.

Mr. Hogg: The Secretary of State has the power to make an order under the clause. It is not absolutely clear that that is an Order in Council subject to resolution in the House. I know that my right hon. Friend the Member for Devizes (Mr. Ancram) referred to clause 101, but that seems to apply to delegated legislation, and I am not sure that the order-making power to which the Secretary of State is now referring will be subject to the negative resolution procedure. If it will be, where will the negative resolution be made--in the Scottish Parliament or here? If it will be made in the Scottish Parliament, what will happen if the Parliament decides not to approve the order made by the Secretary of State?

Mr. Dewar: The order would be made in this House by a Secretary of State. [Interruption.] The right hon. and learned Gentleman has asked a question and is now engaged in gesticulation with his colleagues. That order would be laid in this House and would have to command a majority.

An important safeguard, which was pointed out by the hon. and learned Member for Orkney and Shetland (Mr. Wallace), is that the decision would be open to judicial review. In my view, it would be open to judicial review in the Scottish courts. The courts would have to consider the adverse effects of such an order and apply the reasonableness test. If the Secretary of State were acting unreasonably, clearly the action for judicial review would succeed. I am advised--I can go a little further; because of my days 35 years ago of practising law, I am aware--that the test of reasonableness is not unknown in the law of Scotland. Judicial review is an important safeguard in this case.


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