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Mr. Dewar: The right hon. and learned Gentleman is making important points. The judicial review would be taken in the Court of Session in Scotland. It would be a challenge from Scotland and would be dealt with by the Scottish courts.

There is an important distinction between the governor generalship powers, as they are sometimes called, under the 1978 legislation and the powers in the Bill. Under the 1978 legislation, the Secretary of State could have intervened on the basis that he did not like the policy that was being followed by the Scottish Parliament. The Bill provides an important qualification. It is no good the Secretary of State pleading that he does not like the policy: it must have an adverse impact on reserved powers. That is a sharp distinction.

Mr. Hogg: That is a good debating point, but it does not go as far as the Secretary of State thinks it does. Under

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the Bill, the Secretary of State would merely have to show that he or she had reasonable grounds to believe that the policy would have an adverse effect. I have never encountered the phrase "adverse effect" in legislation. There is no qualitative assessment of how serious the adverse effect should be. It could be very slight to trigger the power.

Mr. Salmond: Does the right hon. and learned Gentleman agree that the permissive aspect lies in clause 28? Clause 33, which empowers the Secretary of State to intervene, cannot be considered a permissive clause.

Mr. Hogg: I think that the Secretary of State has a good point. He is arguing that a total prohibition on the Scottish Parliament to deal with issues that touch on--I use a loose phrase--reserved matters would be a total barrier. He is enabling the Scottish Parliament to pronounce on reserved matters subject to the right of the Secretary of State to intervene if he thinks fit and to other controls. To that extent he is right to say that it is an enabling power. However, he goes further than he should. [Interruption.]

Mr. Deputy Speaker (Mr. Michael J. Martin): Order. There are many conversations in the Chamber. The right hon. and learned Gentleman is dealing with a complicated matter and he should be heard. Anyone who wants to engage in conversation should leave the Chamber.

Mr. Hogg: The Secretary of State overstates his position by his failure to acknowledge that the exercise of the power is not subject to effective constraints. In that sense, I agree with the hon. Member for Banff and Buchan (Mr. Salmond).

Mr. Salmond: Does the right hon. and learned Gentleman agree that if one accepts the basic structure of the legislation, with its reserved and devolved powers, without clause 33 there would be no clause 28? In that sense, it is permissive. Will he comment on the fact that we are debating the adverse effect of an operation on an enactment and not a power?

Mr. Hogg: On that narrow point, there is nothing between me and the hon. Gentleman. I have said that I agree that, in reality, clause 33 gives an enabling power. However, it is couched in such terms that it will give the Secretary of State unfettered power to intervene.

Mr. Grieve: Will my right hon. and learned Friend comment on the juxtaposition of clauses 32 and 33? We have been dealing with clause 33, but clause 32 provides specific instances for reference to the Judicial Committee when there is likely to be conflict over competence. Why have clause 33, unless it is to enable action beyond that? I do not understand that.

Mr. Hogg: I think that the Secretary of State wants to go beyond that for the reasons that he has outlined and for which I have some sympathy. My hon. Friend's point is sound because clause 33(1)(a) deals with international obligations that may contravene an enactment of the Scottish Parliament, and such matters could be put to

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the Judicial Committee. If they were, that would provide some safeguards in the interests of the hon. Member for Banff and Buchan.

Mr. Salmond: We are debating an amendment that would delete clause 33. Was that amendment moved to enhance or diminish the powers of the Scottish Parliament?

Mr. Hogg: My right hon. Friend the Member for Devizes moved the amendment so that the House could have a clear view of the extent of the powers that are to be conferred on the Secretary of State. There is a respectable case for clause 33(1)(a), but I question whether 33(1)(b) is quite in that category. [Interruption.]

Mr. Barry Sheerman (Huddersfield): On a point of order, Mr. Deputy Speaker. Conversations are breaking out again. Perhaps the right hon. and learned Gentleman is speaking in some sort of upper-class, barrister gabble that no one can follow.

Mr. Deputy Speaker: The right hon. and learned Gentleman is in perfectly good order. I can understand him.

Mr. Hogg: We have known each other a long time and we have become very familiar, Mr. Deputy Speaker. The point that I am making to the House, although not, I think, to the hon. Member for Huddersfield (Mr. Sheerman), is that such powers should be subject to effective constraint. The objection to the clause is that they are not subject to any obvious constraints. That is why I am against the clause.

Sir Teddy Taylor: I have just a few minutes, but I hope that hon. Members will think carefully about a matter on which I feel strongly--that clause 33 is the basis for a Parliament which, I am afraid, will be a rather pathetic Parliament. It will lead to frustration and will be a source of conflict with the United Kingdom Parliament. I shall give an example.

Mr. Deputy Speaker: Order. I cannot allow the hon. Gentleman to go wide of the amendment. We are debating the powers of the Secretary of State, not the Scottish Parliament. The hon. Gentleman has had other opportunities to speak about that.

Sir Teddy Taylor: I am sorry, Mr. Deputy Speaker. I was coming on to that in my second sentence. The Secretary of State is taking the power--the complete power--basically to overrule laws passed by the Scottish Parliament.

Imagine just one or two examples of what that will mean. I mention one particular one: the Lockerbie bombing, which has haunted many Members of Parliament and others for a long time. If the Scottish Parliament took the view, because this explosion happened in Scotland and because it felt that the people who had lost their relatives and friends in the bombing deserved to find out the answer, that a special Scottish law should be passed on how the case should be tried--and perhaps even on which procedures should be used--and if the Secretary of State, because of advice from the Foreign Office, said, "That Bill is dead," how would the

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people of Scotland feel? I have spent most of my life in Scotland. I know that nothing would make them feel more sick or miserable than if the English Parliament--as they would call it, although it is a UK Parliament--overturned the views of the people of Scotland on that matter.

Let us think of another issue on which I know people in Scotland feel strongly, and on which I feel passionately and have a recorded interest. Let us assume that the Scottish Parliament takes a strong opinion on opencast coal.

Mr. Deputy Speaker: Order. Again, the hon. Gentleman must remember that this is a limited debate. I will not allow him to go on to discussions about the Scottish Parliament. With this amendment, we are talking about the powers of the Secretary of State.

Sir Teddy Taylor: I am sorry, Mr. Deputy Speaker.

If the Scottish Parliament were to do that, the Secretary of State could step in and say, "That law is dead. That law is finished." Hon. Members should appreciate that, under clause 33, we are basically giving the Secretary of State an unrestricted power simply to walk in and to tell the Scottish Parliament that what it is doing is wrong--because, in his opinion, it conflicts with some international obligation or with some other aspect of Government policy for the UK or for Scotland.

There is no doubt at all that the wording used causes concern.

Mr. Dewar: May I in just one sentence say to the hon. Gentleman that he has misunderstood the situation and that the Secretary of State could not do any such thing?

Sir Teddy Taylor: I am sorry, but the Secretary of State can promote an order, which is put before the House of Commons. That order--it is laid down specifically--can be discussed and Parliament, of course, will decide.

In this clause, there is the basis for the break-up of Britain. Unless some restriction is placed and unless we have a clear demarcation of the lines of responsibility, whereby the Secretary of State's power is limited or controlled, we are not improving democracy, but paving the way for Britain's break-up.

Mr. Dewar: Let us take the hon. Gentleman's opencast coal example, because it is interesting. There is no question of the Secretary of State in the UK Government saying, "You cannot pass a law that is properly within the devolved powers, because we do not like it." He could say, of course, that opencast coal was a reserved matter for the Department of Trade and Industry. Without the mechanism I have described, which is in the Bill, the Scottish Parliament might not be able to pass a planning law that had an impact on opencast coal, which is reserved. Therefore, we have to have the enabling flexibility that this mechanism gives.

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