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Lord Lang of Monkton: I believe that I understood the explanation that the noble Lord gave of the amendments he has tabled to Clauses 33 and 54. Since, as I understand it, this is the first time that there has been any reference of substance to the powers of the Secretary of State in the Bill, I wonder whether we might explore a little more fully the role and function of the Secretary of State in future in the context of the amendments to his powers that the Government have tabled.

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Formerly, the position of Secretary of State for Scotland was powerful because he presided over a complete range of domestic areas of government, a substantial department and a substantial budget. He was therefore able to act with some authority within Scotland and to defend Scotland's powers within government at Westminster and in Whitehall. One can think of many examples--Tom Johnston and Willie Ross spring to mind--of those who have done this. But now there is to be something of a role reversal. We are all familiar with the constitutionally illiterate challenge of any Secretary of State: "Are you the Government's man in Scotland or Scotland's man in Government?". As I see it, under this Bill that question need not be asked. It is quite clear that the role of the Secretary of State for Scotland can in future only be that of the role of the Government's man in Scotland.

Clearly, from a position of strength, the Secretary of State is now moving to a position of considerable weakness. He will no longer be at the centre of government. He will be an outsider but with power to intervene to prohibit a Bill of the Scottish parliament after it has passed through the Scottish parliament. Indeed, through Clause 54 he will have power to intervene to control and prohibit action by the Scottish executive.

If I read the Bill correctly, that does not bode well for the future relationship between the parliament in Edinburgh and the Parliament at Westminster. Therefore I ask the Government how they see the role, function and status of the Secretary of State. In the context of this clause and subject to the amendments as tabled, to which Secretary of State are they referring? Is it the Secretary of State for Scotland or another? I looked at Clause 112 for enlightenment on interpretation and found it silent. In the context of the amendments it may be the Foreign Secretary, the Secretary of State for Home Affairs or the Secretary of State for Defence who will be the relevant Secretary of State. As most Secretaries of State these days seem to be Scots, that may not be perceived as being a problem at the present time.

I suspect that the answer I will receive is that it is the use of the generic term "Secretary of State", which is normally used in legislation. But it is all the more important, therefore, to clarify precisely what the role of the Secretary of State for Scotland will be. It is he who is most likely to find himself dealing from Westminster with the Scottish parliament.

Will there be a Secretary of State for Scotland? Will he be a Secretary of State for Scotland alone or might he be grouped together with other territorial parts of the United Kingdom as a sort of revived and some may think insulting concept of Colonial Secretary? Will he have a seat in the Cabinet? What roles would he have other than those that might--and only "might"--arise under Clauses 33 and 54? What would be his powers and authority?

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I assume that the Secretary of State will have no department and that in itself will underline the weakness of his position--something on which Mr. Jack Cunningham may care to reflect in the days ahead. Will he have junior ministers to assist him? Will he receive advice from officials and, if so, from which officials? Will they be from the Scottish Office? If so, how will that reflect the advice that those same officials will be giving to the Scottish executive whose actions the Secretary of State might then be advised to overrule?

I am not seeking to raise artificial hurdles, difficulties and problems; rather, I am trying to anticipate the kind of problems that will arise once the legislation is in force. The argument may be better raised at Clause stand part, at which time I may be tempted to return to the charge. But I should like the Government's views and thoughts on how they see the role of the Secretary of State.

I suspect that the Government have given little thought to this matter. Their preoccupation has been so entirely with the role, powers and functions of the Scottish parliament that they have regarded the Secretary of State's function as something that will just wither away into irrelevance. If that is the case--I hope that the Minister can reassure me that it is not--it is an extremely dangerous posture to adopt. Links between Edinburgh and Westminster will be vital if we are to retain the integrity of the United Kingdom following the creation of this parliament. There is a possibility that the role of the Secretary of State will be pivotal in sustaining and nurturing that relationship. Therefore, we should be told where the Government stand in relation to the powers of the Secretary of State.

Lord Kirkhill: Before the noble Lord resumes his seat and before I make one point, I want to say that his remarks are pertinent, important and certainly demanding of specific reply. I am sure that it is my own stupidity, but I did not understand the point he made in relation to various Secretaries of State. Perhaps he could elaborate a little on that point so that I can fully understand his comments.

Lord Lang of Monkton: I am grateful to the noble Lord for giving me the chance to try to make myself more clear. Under subsection (1)(a) of Clause 33, the Secretary of State may take certain action to prohibit the presiding officer from submitting a Bill for Royal Assent, where he has reasonable grounds to believe that such action,

    "would be incompatible with any international obligations".

The Government's amendment added to that criterion the further consideration that he should intervene where the interests of defence or national security are concerned.

I imagine that the Secretary of State who would be in the lead in such intervention would be, first, the Secretary of State for Foreign Affairs; secondly, possibly the Secretary of State for Home Affairs and, thirdly, the Secretary of State for Defence. That may be

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so, in which case the Minister and I understand each other. But it still does not answer the question in relation to what powers the Secretary of State has.

Lord Sewel: Perhaps I can deal with those issues now, if it is convenient to the Committee.

The noble Lord, Lord Lang, will receive the reply he anticipated. Reference in the Bill to "Secretary of State" is a generic reference. It is applicable to any Secretary of State. If we move on to the broader point, it comes up elsewhere in the Bill on the future role and function of the Secretary of State. We must remember that everything to do with the Secretary of State--the future role and function of the Secretary of State--is largely a matter for the Prime Minister of the day. We imagine that there will be an important task to be done, particularly in the early stages of the parliament's life, in terms of establishing and cementing good relations between the UK Government and the Scottish executive.

Clearly, this is an area where everyone recognises that the role of the Secretary of State in a devolved context is likely to change and evolve over time. It is difficult at this juncture to be prescriptive or precise in terms of how the relationship between the Secretary of State for Scotland and the UK Parliament, the UK Government, the Scottish parliament and the Scottish executive will change.

We are in a situation where, although we are establishing the framework for devolution, much of the relationships and practices are of a dynamic nature. There will be change; and there will be evolution. I am not confident that I can predict at this stage what that will look like five years down the road.

Lord Hope of Craighead: Perhaps the Minister will explain a little more the thinking behind Amendment No. 247. That is the provision which creates a relationship between the Secretary of State and the Judicial Committee of the Privy Council. Clearly, some provision has to be made to deal with a situation where a reference has been made to the Privy Council and to provide a timetable within which the Secretary of State takes the step provided for in Clause 33.

From the way in which Amendment No. 247 is presently worded, it seems to me that, even if the Secretary of State decided that in the interest of defence or national security he should make an order under Clause 33, nevertheless, the Judicial Committee would have to go through the process of hearing the application or deciding it, or otherwise disposing of it before the period of four weeks began. Perhaps it would make more sense if the period of four weeks were to run from the date of reference to the Judicial Committee. It seems unfortunate, if the Judicial Committee is to have other things to do, that it should have to go through and decide an issue which will be immediately rendered academic by the decision of the Secretary of State.

Lord Fraser of Carmyllie: Before the noble Lord responds, perhaps I can intervene briefly. I can reassure the Minister that I welcome Amendment No. 244. The Bill as it stood made my head throb and this amendment makes it somewhat simpler to understand. It is therefore

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to be welcomed. However, we will want a fuller reply at some point about the role of the Secretary of State for Scotland--whether combined or however it is to be.

It seems to me that the only thing one can say with confidence about the Secretary of State for Scotland under these new arrangements is that his first task will be to see whether the Advocate General is free for lunch every day; he has so little else to do. Otherwise all that he would be doing on an annual basis is adjusting the seating plan for the annual visit of the Moderator of the General Assembly before he delivers his customary sermon in the Palace of Westminster. I wonder what his role would be. The only prediction one can make with any certainty is that he will not be residing in the splendour of Dover House for much longer from what one reads about the intentions of the Prime Minister.

I do not expect an answer from the noble and learned Lord at this time but I would be grateful if he reflects on it and writes to me. In Clause 33 he is proposing after "international obligations" the words,

    "or the interests of defence or national security".

What exactly are "international obligations?" Before the Minister leaps to his feet, I am aware that international obligations are defined in Clause 112(10). They are defined there in the context of separating out from international obligations those obligations which are to be treated as Community law.

If this Parliament wished at any time in the future to remove from the Scottish parliament the powers that have been devolved--to increase again the extent of the reservation--as I understand it this Parliament could do so under Clause 29 by way of an Order in Council. Am I correct in understanding that if the Government of the United Kingdom entered into international obligations--and they could achieve international obligations without reference to this House; the obligations would already be in place--it would allow the Westminster Government by, as it were, a back route to impinge upon those matters which had been devolved to the Scottish parliament?

This is not simply to raise an exceptionally arcane point; although it may appear to be such. It is my understanding that the device has been used by the Federal Government of Australia when wishing to restrict the activities or the powers of the states. As a consequence of entering into international obligations, what had been within the remit of the states was necessarily limited. I am not sure what the answer is but it is something we ought to be alive to. It would be helpful, if not now, then during the long Recess, if the Minister would reflect on it and write to me.

6.30 p.m.

Lord Rodger of Earlsferry: As I understand it, Clause 33(1) will, as a result of Amendment No. 243, give the power to the Secretary of State to make an order where he believes legislation would be incompatible with international obligations or the interests of defence and national security. Clause 54(4)(a) has a similar theme in respect of subordinate legislation. Why is it that there is no reference in Clause 54(1) to the interests of defence or national security? In other words, the

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Secretary of State cannot stop a proposed action by a member of the Scottish executive even if he believes that it is contrary to the interests of defence and national security. He can only do so if it is incompatible with any international obligations. Is that intentional or just an omission?

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