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The Earl of Mar and Kellie: My Amendment No. 260A is grouped with the one we are discussing. It refers to the powers of the Secretary of State to prevent or require action with regard to Scottish parliamentary legislation. The purpose of Amendment No. 260A is to clarify Clause 54(1), which refers to international obligations by adding the words "Community law" to international obligations.

The need for this amendment stems from the definition of "international obligations". Clause 112(10) defines it as,

If the clause remains unamended, the Secretary of State will not have the explicit power to require action on legislation which does not comply with Community law. Although Clause 53 refers to Community law, it does not seem expressly to empower any action by the Secretary of State to remedy errant legislation. This amendment makes the issue abundantly clear.

Baroness Ramsay of Cartvale: I understand the thinking behind the amendments in this group, but we are satisfied that we have already provided a robust legislative framework to ensure that EU obligations are properly fulfilled by the Scottish parliament and the Scottish executive. The noble Earl, Lord Balfour, has suggested in Amendment No. 260 that a clear statement should appear on the face of the Bill to the effect that community obligations extend to the Scottish executive. The general transfer of functions in Clause 49 already achieves that.

Any obligation upon Ministers of the Crown to observe and implement Community law within devolved competence is transferred to Scottish ministers by Clause 49. Scottish ministers will therefore be liable to implement community obligations within devolved competence and be responsible for any failure to do so under EU law. Scottish ministers will also be liable for

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the same penalties as UK Ministers if they fail to observe or implement Community obligations. All that is confirmed by Clause 53(1), which provides that,

    "Despite the transfer to the Scottish Ministers by virtue of section 49 of functions in relation to observing and implementing obligations under Community law, any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972".

Ministers of the Crown do not lose their powers to implement Community law in relation to devolved matters but continue to be able to exercise any function as regards Scotland for the purposes of implementing Community law. In other words, Ministers of the Crown have concurrent powers with Scottish ministers. Furthermore, Clause 53(2) requires a member of the Scottish executive to act only in accordance with Community law. Clause 28(2)(d) also makes it clear that legislation of the parliament must be compatible with Community law.

Any breach of Community law by a member of the Scottish executive, whether constituted by some action or failure to act or by some subordinate legislation made by that member, is one of the devolution issues which are subject to the special procedures in Schedule 6. While I understand the noble Earl's intention, I think his amendment is unnecessary and I hope that in the light of my explanation he will feel able to withdraw it.

The effect of Amendment No. 260A would be to extend the power of UK Ministers to prevent or require action in relation to the UK's international obligations, to cover Community obligations. It would be inappropriate and unnecessary to include a reference to Community obligations in Clause 54. Clause 54 refers to international obligations because that is the only way in which the UK Government can ensure observance of international obligations by the Scottish executive. It is not possible, for example, to make this a vires issue which can be adjudicated by the courts because the courts generally do not take cognisance of any international obligations unless they are incorporated into domestic law.

However, that does not apply in the case of Community law because that is part of our domestic law and our courts can, and must, have regard to it and enforce it. As I have pointed out already, the Bill requires the Scottish executive to comply with Community law and its failure to do so can be adjudicated by the courts.

These provisions make it unnecessary to extend the power of intervention to include Community obligations--there is no scope for the Scottish executive to derogate from the same essential requirements to comply with Community law that bind the UK Government. With that explanation, I invite the noble Earl to withdraw the amendment.

I can fully appreciate the noble Earl's reasons for introducing Amendment No. 261. However, in our view it is unnecessary. An order made under this provision may require action to be taken by a member of the Scottish executive to implement international obligations in so far as the member of the Scottish executive has power to take the required action

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retrospectively, the Secretary of State can require him to do that. If the member of the Scottish executive did not have power to take retrospective action there would be no point in the Secretary of State's order having retrospective effect. In the light of what I have said I ask the noble Earl to withdraw the amendment.

3.45 p.m.

The Earl of Balfour: My Lords, I am grateful to the noble Baroness for having explained the position. I was particularly concerned about someone being considered guilty of an offence retrospectively. I did not want to see that happen. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 [Power to prevent or require action]:

[Amendment No. 260A not moved.]

Lord Mackay of Drumadoon moved Amendment No. 260B:

Page 23, line 45, after ("international") insert ("treaty").

The noble and learned Lord said: With the leave of the Committee I shall speak also to Amendments Nos. 260C and 260D, 261A, 262A and 263A. These amendments fall into two groups. First, Amendments Nos. 260B, 262A and 263A seek to introduce the word "treaty" between the words "international" and "obligations" where they appear in Clause 54 and elsewhere in the Bill.

The purpose of the amendments is to make it clear that when the Bill refers to international obligations, it refers to legal obligations which are binding on the United Kingdom as a matter of international law. The concern is that unless the term is more carefully defined it might be construed to cover all sorts of understandings, and indeed moral obligations, which emerge from discussions involving Foreign Office Ministers, members of the Diplomatic Service or Foreign Office officials in the course of their duties.

Similar concerns arise out of the introduction of the terms "interests of defence" and "interests of national security" which now form part of the provision as a consequence of government amendments moved earlier. Clearly, the full ramifications of these amendments will require consideration during the Recess by those of us participating in these debates.

The practical consequence of the concern is this. If these terms remain as general as they are it will be possible for the Government, without any reference to Parliament whatsoever, to expand upon the extent to which the Secretary of State in terms of his powers under Clause 54 can interfere with the Scottish executive's exercise of the functions that lie within its competence. This matter was raised in our debates on Tuesday by my noble and learned friend Lord Fraser of Carmyllie. The noble Lord, Lord Steel, undertook to reflect and write on it over the Recess. That takes the discussion--

Lord Steel of Aikwood: With great respect, I did nothing of the kind.

Lord Mackay of Drumadoon: I beg the noble Lord's pardon. I was in error in thinking that the

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noble Lord, Lord Steel, intended to do anything over the Recess--except of course, engage in a little fishing. I do not think he will be alone.

The purpose of the other amendments is slightly different. They provide that if the Secretary of State is of the view that the Scottish executive has acted or refused to act in a way which is incompatible with international treaty obligations or incompatible with national security or defence interests, he should have two options. One option is to go to the court and seek a declarator that the Scottish executive has acted in such a way. The alternative would be for him to have an order-making power in his own right to take the action which is necessary--an expansion of the power which he already has in terms of subsection (4).

My concern is that his order-making powers in subsections (1) and (2) which enable him to direct the Scottish executive to take action or refrain from taking action will be perceived to be the powers of a colonial governor. If they were ever used and if they exist and the use of them could be threatened, it would serve to provoke friction between the Scottish executive and the United Kingdom Government, where there is a concern that the Scottish executive's actions could be or are perceived to be incompatible with the three terms to be found in the Bill.

It should be a clear-cut choice for the Secretary of State. In such a case he should raise the matter with the court and seek a declarator. It may be a complicated action to bring and it may be a complicated matter for the court to decide. But as I understand orders under Clause 54 to be subject to judicial review, these are the kind of difficult legal issues which the court may require to deal with in any event. He should have these two routes, either to go to the court or to act on his own hand. The idea of him directing the Scottish executive on what to do is not compatible with common sense or the hope that the executive and the Government will work profitably and fruitfully together in the future. I beg to move.

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