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Sir Teddy Taylor: Let us assume that the Scottish Parliament, for good reasons, after careful debate, decided to pass legislation to make separate arrangements for the trial of those who carried out the Lockerbie bombing, and that the Foreign Secretary took the view that, under clause 33(1)(a), that legislation might be incompatible with an international obligation relating to the United Nations. How would that be resolved? Would we tell the Scottish Parliament that it had no right to determine a legal issue relating to a bombing that took place in Scotland in which people were killed? Would the Foreign Office be able to step in and prevent it from doing so? To avoid conflict, we should say what would happen in such a situation. That is a specific, clear question. Would the Foreign Secretary have the right to step in?

Mr. Dewar: That comes under clause 33(1)(a). If what is proposed by the Scottish Parliament--or by any Government Department in the United Kingdom--is a clear breach of Britain's international obligations, the Government would have the right to intervene. The House has constantly recognised those special and important circumstances, and my answer to the hon. Gentleman is yes. However, that would occur only if there was a breach--or there was held to be a breach--of Britain's international obligations. We could not allow any part of the Government machine, including the Scottish

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Parliament, to defy a binding international obligation if that breach caused great damage to this country or cost the Government of the United Kingdom substantial financial penalties. We are talking about a very unusual event, and the mechanism takes account of a situation that I do not for a moment envisage occurring. However, it is right that provision should be made.

I do not know where the Opposition are coming from on this matter--I do not say that in an unfriendly spirit. I stress that the process of government is a process of negotiation and discussion; it is a matter of bilaterals and discussions at an official level. It is ultimately a case of Minister talking to Minister--whether it be the Scottish Executive talking to a United Kingdom Department or United Kingdom Departments talking to each other. All hon. Members are familiar with that process. Common sense dictates, consensus emerges and agreement is reached 999 times out of 1,000.

Hon. Members must accept that that is the business of politics. I do not know whether the Scottish National party, for example, conducts its affairs on the basis that, if one man says "jump", everyone jumps; or whether sometimes a little discussion and canvassing the merits of a situation lead to a common result. That is certainly what happens in my party; it is what happens in government; and it will certainly happen within the United Kingdom when we have a Scottish Parliament, a Welsh assembly and a United Kingdom Administration. We are nearing the end of a very long process of discussion which I suspect, in almost all cases, will ensure that matters are settled properly.

Mr. Wallace rose--

Mr. Dewar: I am sorry, but I want to continue. I said a moment ago that I did not know where the Conservatives were coming from, and perhaps they would care to explain it to me. It seems to me that we have a choice: we can say that, if there is any impact for devolved legislation on a reserved responsibility or enactment, that stops the devolved legislation in its tracks, because it has gone outwith its competence, or some formulation of that kind--in which case, the Government would be open to the charge that we were not meeting the prospectus laid down in the White Paper--or we can say that there must be some proper mechanism that recognises that there will be an impact and provides a remedy, if it is thought that that impact will be adverse, damaging and will go too far. On top of that, we could build in the safeguard of judicial review.

I see this measure not as a blocking mechanism or governor-generalship, but as introducing a sensible element of flexibility that allows expansion and contraction at the edges of the division between the reserved and devolved functions in a way that is ultimately very sensible and makes the system much more workable. It is the old cliche--which I used in an earlier debate--of whether a glass is half full or half empty. This measure is a means of ensuring that we enable the Scottish Parliament to fulfil its remit. Without a mechanism of this kind, it would be cabin confined and restricted in a way that most people--including certainly all Scottish parties--would consider to be unacceptable.

Mr. Wallace: It sometimes seems that we are quibbling about affirmative or negative procedure, but as the

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Secretary of State thinks that the situation would arise very rarely, and as it would be an important step for a Secretary of State to take, should not the mechanism be affirmative resolution of both Houses, rather than negative resolution?

Mr. Dewar: Under clause 101(6), as the right hon. Member for Devizes mentioned--I congratulate him on his energy in pursuing the matter to the end--the negative procedure would be used. If the hon. and learned Member for Orkney and Shetland (Mr. Wallace) feels that that would not be a sensible procedure, his hon. Friends can no doubt push that at a later stage.

I believe that that machinery would have to be used only in very exceptional circumstances. I find it almost inconceivable that the negative procedure would not be invoked if the order was as controversial as hon. Members imagine. Subsequently, if there was no satisfaction, the judicial review process could be invoked.

Mr. Hogg rose--

Mr. Dewar: I am sure that the right hon. and learned Gentleman intends to speak in due course, and I understand that other hon. Members want to come in. I have tried to put the matter in perspective and I await the response with interest.

10.30 pm

Mr. Salmond: The Secretary of State is aware that clause 33, to which the amendments refer, has been dubbed by the Conservative party the "governor general" clause. If that is the Tories' view, most reasonable people would reflect on how much power the clause puts into the hands of the Secretary of State for Scotland or any other Secretary of State. We have already had this evening an illustration of how political considerations can prevail on the better judgment of Secretaries of State.

Earlier, the Secretary of State for Scotland suggested that I papered my bedroom wall with quotations of his statements in this place. I do not paper my bedroom wall with them, but I have them in my speaking notes. The right hon. Gentleman will hear a great deal more of them in the coming weeks and months in Scotland.

In Hansard on 4 June last year, the Secretary of State said:

On 21 May last year, the Secretary of State said:

    "Even though the hon. Gentleman"--

that is a reference to me--

    "and I may have differences of interpretation, I hope that he will accept that I should be the last to challenge the sovereignty of the people or to deny them the right to opt for any solution to the constitutional question which they wished. For example, if they want to go for independence, I see no reason why they should not do so. In fact, if they want to, they should. I should be the first to accept that."--[Official Report, 21 May 1997; Vol. 294, c. 725.]

Mr. Dewar rose--

Mr. Salmond: I shall give way to the Secretary of State in a few seconds. I am illustrating how political

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considerations can prevail on the judgment of a Secretary of State, which is highly pertinent to clause 33 and the amendments that we are debating.

In The Herald in May last year, it was reported that the Secretary of State

The amendments reflect concerns and considerations about whether a Secretary of State may be moved by political reasons to attempt unduly to restrict the ability of the Scottish Parliament to determine the legislation before it. I submit that we have seen an illustration this evening of how political considerations can prevail to turn a Secretary of State who, last year, put forward a perfect democratic prospectus into a Secretary of State who, this year, dissembled and wriggled when asked clear questions to which he had an affirmative answer last year.

If the Secretary of State goes to the people of Scotland and says that the Government are forming a Scottish Parliament to allow the people of Scotland to determine their own future, and that the Government have signed a Claim of Right which asserts absolutely the sovereignty of the Scottish people, but also says that there must be a safeguard in Westminster so that any Secretary of State can say, "This far and no further--we do not consider this matter pertinent or within the competence of a Scottish Parliament," he will be extremely fortunate to sustain his current position in the opinion polls--never mind the position that the Labour party previously had.

The amendments are highly pertinent because they illustrate the difficulties and vulnerabilities of investing in a single person or persons abilities and powers to restrict a democratic Parliament when the Secretary of State, or any Secretary of State, as has been clearly illustrated this evening, can be panicked or influenced by political events into changing from what was a clear democratic position last year to a somewhat muddied position this evening.

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