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Lord Mackay of Ardbrecknish: Before my noble friend Lord Selkirk of Douglas decides what to do with his lead Amendment No. 291, let me say that I am

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grateful to the Minister for his explanations. I indicated that I thought from my experience that I was perhaps going a bridge too far in expecting parliamentary scrutiny and approval.

The Minister was very clear that the documents would be published. Will he return to the question of how they are to be published? I suggested that they could be published by means of being placed as papers before this House and presumably, if the same procedures exist in Edinburgh, before the Edinburgh parliament. It is all very well to say that matters will be published, but they have to be published somewhere. I should be hugely reassured if I could be told where they will be published. If the Minister cannot give that reassurance tonight, perhaps I may return with the helpful suggestion that they simply be laid as parliamentary papers, and that is sufficient for publication. Members here or in Edinburgh would be able to get hold of them, as would the press, and they would become more widely available. That is the only unanswered question I have on the subject of concordats. They are new; we are entering a new situation. Therefore there should not be any surprise that we as a responsible Opposition wish to probe the Government as to what exactly they will do, how they will work and how we shall know about them. If the Minister could tell me where he thinks they might be published, we might then allow my noble friend Lord Selkirk of Douglas to conclude this debate.

Lord Sewel: I should like to come back to the noble Lord with a considered response on the particular point of the whys, wherefores and hows of publication.

Lord Selkirk of Douglas: I thank the Minister for his assurances, and in the light of those assurances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 291ZA and 291ZB not moved.]

Lord Mackay of Drumadoon moved Amendment No. 291ZBA:

Before Clause 86, insert the following new clause--

Concordats: duties and liabilities

(" .--(1) No concordat shall give rise to any duties or liabilities owed by one party to the concordat to the other.
(2) In this section "concordat" means any agreement between a Minister of the Crown and the Scottish Executive regarding the consultation arrangements and common United Kingdom guidelines in respect of--
(a) any reserved matter under Schedule 5,
(b) any devolved matter under section 29(4),
(c) any transfer of ministerial functions under section 49,
(d) any functions exercisable by agreement under section 51,
(e) any shared power under section 52,
(f) any cross-border public body under sections 83, 84 and 85, or
(g) any agency arrangements under section 87.").

The noble and learned Lord said: In moving this amendment, with the leave of the Committee I shall also speak briefly to Amendment No. 291ZBB.

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These amendments deal with the separate issue of the legal significance, if any, of a concordat and the persons who are entitled to rely on the existence and terms of a concordat in legal proceedings. The first effectively provides that,

    "No concordat shall give rise to any duties or liabilities owed by one party to the concordat to the other".
The gist of the second amendment is in the first subsection:

    "The existence or terms of a concordat may not be relied upon in any legal proceedings before a court or tribunal by a person who is not a party to the concordat".
When we were first introduced to the issue of concordats in a White Paper there followed shortly thereafter a short guidance note prepared by the Scottish Office entitled, Guidance on Concordats Between the Scottish Executive and UK Government Departments. In view of the lateness of the hour, I shall do no more than indicate that the note states quite explicitly that the purpose of concordats is not to create legal obligations or restrictions on any party but to set the ground rules for administrative co-operation and exchange of information, as the Minister has helpfully explained to us. However, it states in paragraph 10 of the note:

    "Any necessary statutory provisions are included in the devolution legislation and it is not intended that duties and liabilities should be imposed indirectly through concordats".

I believe that the intention that concordats should not give rise to any legal duties or liabilities received something of a dent during the Second Reading debate on the Government of Wales Bill, when the noble and learned Lord, Lord Falconer of Thoroton, made it clear that, while concordats would not take the form of binding contracts or statutory documents, they would not be without legal significance. He said on 21st April:

    "it may well be the case that [concordats] will create a legitimate expectation of consultation. For instance, if one party to a concordat suddenly ceased to consult the other in accordance with the concordat, the result might be that its decisions could be challenged by way of judicial review, so it is wrong to say that there will be no legal underpinning to these concordats. The precise limits of that underpinning would have to be worked out by the courts in the context of the terms of the concordat itself. But the important point about judicial review is that it will not permit one party suddenly to whip away the concordat and then act entirely contrary to its terms".--[Official Report, 21/4/98; cols. 1131-32.]

Against that background, a number of questions arise. First, does the Minister who is to reply on the amendment agree with the views expressed by the noble and learned Lord, Lord Falconer, in relation to the Government of Wales Bill? Secondly, if he does, is it the Government's intention that a failure to adhere to the terms of a concordat could be founded on only by the other party to a concordat, or is it something that a third party could also found on? One could well imagine a situation where, if the British Government breached a concordat, they might not only annoy the members of the Scottish executive, who might feel that their interests had been prejudiced, but they might also annoy and upset a Scottish company which was faced with legislation, whether primary or secondary, which impinged adversely on its business activities, cost it money or restricted it to one field of activity or another and which was able to say that the legislation, be it primary or secondary, had been enacted or approved in

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breach of the terms of a concordat. If, as the noble and learned Lord, Lord Falconer, said, the other party can seek judicial review of the actions of the party which has acted in breach, can a third party who may be adversely affected by such actions and who may also have had a legitimate expectation that a consultation would be undertaken rely on it as well?

These are questions which seem to me to arise and lie behind the second of the two amendments. I am sure the Minister has already worked out that the first amendment merely seeks to put on the face of the Bill what has been stated in terms this evening and what is to be found in the helpful guidance note to which I have referred. In principle, I cannot see any objection to Amendment No. 291ZBA, apart from the one which we have heard occasionally during the debates on the Bill that it may be unnecessary because the matter is self-evident. There is an argument that more should be on the face of the Bill, self-evident or not. I believe that a more difficult issue arises on the second amendment. I shall be interested to hear the Minister's reply. I beg to move.

12.30 a.m.

Lord Sewel: As the noble and learned Lord indicated, these amendments deal in a focused way with the extent to which concordats give rise to legal rights and obligations. I start by reiterating that these are non-statutory documents that are not intended to make provision in respect of matters more properly dealt with in the Bill. They will not fetter the discretion of either party in their areas of responsibility; nor are they intended to create legally binding obligations.

Understandably, the noble and learned Lord picks up a point from the comments of my noble and learned friend Lord Falconer. It cannot be ruled out that concordats may be cited in legal action on the ground that they have given rise to legitimate expectations that a particular consultation procedure will be followed. It will be for the courts to consider such matters. But the Government intend that these should be flexible arrangements subject to review in the light of experience which will ease the process of providing efficient administration. We hope that they will be viewed in that light.

One comes to the question of third parties being able to found a case upon a legitimate expectation of consultation between the two governments. If they feel that they have been adversely affected by lack of such consultation, it will be for the courts to decide whether or not that is a basis on which action can proceed and that legitimate expectation exists. As to that, we recognise that there is a degree of doubt which ultimately will be resolved by the courts.

Lord Mackay of Drumadoon: The answer of the Minister is helpful. As I understand it, it admits the possibility that a court may entitle a third party to rely on the terms of a concordat entered into by a Minister of the Crown on the one hand and the Scottish executive on the other. The particular circumstances in which a third party may be entitled to do so are for the courts to decide. I believe I have received the clear answer that it

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is not the intention of the Government to exclude that in all circumstances. Certainly, that follows from the Minister's adoption of the approach of the noble and learned Lord, Lord Falconer; namely, that one or other party can undoubtedly rely on the existence and terms of a concordat in judicial review proceedings.

If and when these matters get to the courts it may well be that everything will not be considered and construed in such a co-operative manner. The individual parties will wish to win their case. Whatever may or may not have been the spirit of co-operation between the Government and the Scottish executive at an earlier stage, once the matter gets to court in metaphorical terms the gloves will be off. But the matter has been clarified. I believe it is accepted that Amendment No. 291ZBA is not objectionable in principle; it is just unnecessary. On that basis, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 291ZBB not moved.]

Clause 86 [Maladministration]:

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