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Mr. Dalyell: We are in political fairyland. I have worked with nine Secretaries of State for Scotland; all of them had considerable authority as members of the British Cabinet. Some of them, such as Willie Ross, Jack Maclay, who became Viscount Muirshiel, and, I suspect, my right hon. Friend the current Secretary of State, had considerable say in the British Cabinet. The Secretary of State whom we are talking about tonight will be a poor creature after May 1999 whose job will soon evaporate. The Secretary of State for Scotland will have a car, a chauffeur, a salary, he may have a private secretary and he may even have an assistant private secretary, but he will have little else.

Sooner rather than later, the British Prime Minister, my right hon. Friend the Member for Sedgefield (Mr. Blair) or whoever it is, will want to deal, in relation to Scotland, with the First Minister of Holyrood in Edinburgh. That is the natural course of events. I see the hon. Member for Banff and Buchan (Mr. Salmond) nodding.

My right hon. Friend implicitly and, indeed, my hon. Friend the Minister of State have recognised that because they have decided where the power is. There is no question about it. I state that as a matter of fact. The Secretary of State whom we are discussing will be a

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Minister of no consequence. I predict that, within months, the Secretary of State will find that he does not have a place in the British Cabinet. He will be moved over, because it is natural that the Prime Minister in London will want to have his discussions with the person in control of the spending Departments. Therefore, tonight's discussion is totally unreal.

During the debates on the Government of Wales Bill, my right hon. Friend the Member for Llanelli (Mr. Davies) often referred to the unbundling of the United Kingdom. It will be an unbundled United Kingdom, and the Secretary of State, whom we are discussing tonight, will have about as much power as Silver Stick in Waiting.

Mr. Wallace: I agree with what the hon. Member for Linlithgow (Mr. Dalyell) says about the diminishing powers of the Secretary of State for Scotland. It has been the Liberal Democrats' policy that he would become unnecessary, but I am not sure how that relates to clause 33 and amendment No. 1, tabled by the right hon. Member for Devizes (Mr. Ancram). I welcome the fact that we have had a debate on that clause because it is an important provision.

When I first read the clause, I thought that it was the "governor general" clause, as it was described earlier, giving huge powers to the Secretary of State to block legislation of the Scottish Parliament. I think that I am right in saying that such a power existed in the 1978 legislation. Under that legislation, any Act of the Scottish Parliament had to obtain the further approval of the Secretary of State for Scotland. We have moved miles from that.

It is important to put that point into context, although it is difficult to find examples of what is involved. My understanding is that this is a safeguard in relation to a provision that allows the Scottish Parliament to go beyond what would be the case if we strictly adhered to reserved and devolved powers. It allows the Scottish Parliament to take a step over the threshold into the territory of reserved powers, where it makes practical common sense to do so. The Secretary of State would intervene only if that step were one too far.

I have tried to think of other examples and, for other reasons, happened to read the House of Commons brief on the Late Payment of Commercial Debts (Interest) Bill. It refers to correspondence between Lord Clinton-Davis and Lord Fraser of Carmyllie. Lord Clinton-Davis, on behalf of the Government, makes it clear that interest and late payment of commercial debt will be a matter for the Scottish Parliament, albeit that the legislation before the House will also apply to Scotland. The letter to Lord Fraser states:


The Scottish Parliament may amend that Bill, which could have an impact on commercial matters that otherwise would be reserved under head 3 of schedule 5. There would be a lot of sense in that: we would achieve a degree of consistency across a range of interest and late

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payment of debt issues, rather than subject only some contracts to the Bill because they were clearly in devolved areas. Therefore, the provision is welcome.

Mr. Salmond: I am following the hon. and learned Gentleman's argument carefully, but can he explain why clause 33, which authorises the Secretary of State to


could be considered to be a permissive clause, as he is arguing?

Mr. Wallace: If the hon. Gentleman had followed my argument and tried to understand the issue rather than making political points--although he is perfectly entitled to do so--he would have realised that that provision is related to clause 28, which is the permissive part of the Bill. The Scottish Parliament will be able to step into the area of reserved functions, but if it goes too far, an order would have to be--

Mrs. Margaret Ewing (Moray): How far would the hon. and learned Gentleman let that go?

Mr. Wallace: The hon. Lady asks how far I would let that go, but the question whether an order applied to reserved matters would have an adverse effect on the operation of an enactment is a matter of judgment. An order must be made subject to approval and subject to judicial review. If the opponents of the provision are proposing that the Scottish Parliament should not have power in any respect to go beyond the threshold between reserved and devolved matters, they will inhibit the Scottish Parliament far more than is allowed under the Bill.

Mr. Hogg: I shall be brief, although I agree very much with what my right hon. Friend the Member for Devizes (Mr. Ancram) has said.

I understand the Secretary of State's argument that clause 33(1)(b) is enabling. There is truth in that, for the reasons that the hon. and learned Member for Orkney and Shetland (Mr. Wallace) and the right hon. Gentleman have outlined, but if I were a Member of the Scottish Parliament, I should be extremely uneasy about the clause in its entirety. One must analyse why.

My right hon. Friend the Member for Devizes passed quickly over clause 33(1)(a), which relates to international obligations. The Secretary of State would have to intervene where an enactment in the Scottish Parliament contravened an international obligation--I understand that--but let us be clear that what is involved is judicial interpretation of whether an enactment in the Scottish Parliament would or would not contravene an international obligation.

The Bill will give the Secretary of State or his successor--

Mr. Dewar: The Foreign Secretary.

Mr. Hogg: The Secretary of State--it might well be the Foreign Secretary--will be given a right to intervene if he

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    "has reasonable grounds to believe".

That is not satisfactory, because the Secretary of State for Foreign and Commonwealth Affairs will not be accountable to the Scottish Parliament; indeed, he is not accountable to this House for the exercise of his power.

I take the Secretary of State to clause 101(6), which is the order-making power. I have grave doubts about whether the order in clause 33 is covered by clause 101(6). The order-making power under clause 101(6) relates to a statutory instrument containing subordinate legislation. The power of the Secretary of State under clause 33 by order to prohibit an enactment is by no stretch of the imagination subordinate legislation.

The order power conferred by clause 33 is not subject to parliamentary scrutiny, because under clause 101(6), parliamentary scrutiny is confined to delegated legislation. The Secretary of State should think back to new clause 19, which made specific reference to an Order in Council. An Order in Council is different from an order such as we are now contemplating.

10.45 pm

Mr. Dewar: The objection that the right hon. and learned Gentleman is making is not valid, but I take it seriously as it comes from him. The intention is that the order should be covered by clause 33, hence the reference to that clause in clause 101(6), but we shall consider this point if it is troubling the right hon. and learned Gentleman.

Mr. Hogg: I am grateful to the Secretary of State for his generous response. I see the reference to clause 33, but I also see the reference to a statutory instrument containing subordinate legislation. The order power under clause 33 does not include subordinate legislation: it is merely a prohibiting power, which is different in kind.

My right hon. Friend the Member for Devizes is right to emphasise that the power under clause 33(1)(a) or (b) is not subject to any obvious control. If we leave aside the question whether it is a negative resolution, the only other remedy is judicial review. It is not clear which court will have jurisdiction: perhaps the Secretary of State will intervene on that point. He will know that it is not the business of a court on judicial review to consider the merits of the order, but merely to determine whether it is intra vires or whether the Secretary of State is acting unreasonably, which is really the same point.


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