| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Hardie moved Amendment No. 132:
After Clause 32, insert the following new clause--
(".--(1) This section applies where--
(a) a reference has been made in relation to a Bill under section 32,
(b) a reference for a preliminary ruling has been made by the Judicial Committee in connection with that reference, and
(c) neither of those references has been decided or otherwise disposed of.
(2) If the Parliament resolves that it wishes to reconsider the Bill--
(a) the Presiding Officer shall notify the Advocate General, the Lord Advocate and the Attorney General of that fact, and
(b) the person who made the reference in relation to the Bill under section 32 shall request the withdrawal of the reference.
(3) In this section "a reference for a preliminary ruling" means a reference of a question to the European Court under Article 177 of the Treaty establishing the European Community, Article 41 of the Treaty establishing the European Coal and Steel Community or Article 150 of the Treaty establishing the European Atomic Energy Community."). On Question, amendment agreed to. Clause 33 [Power to intervene in certain cases]:
Lord Mackay of Drumadoon moved Amendment No. 132A:
Lord Sewel: My Lords, I am afraid we cannot accept the amendment. It may well go beyond what the noble and learned Lord indicated. It would extend the Secretary of State's powers in Clause 33 to prohibit, by order, the submission by the presiding officer of a Bill for Royal Assent.
Those powers are of course essential for the protection of international obligations, the interests of defence and national security and the law as it applies to reserved matters, but they are there as longstops. Their use would require to be justified and would be liable to be scrutinised by judicial review.
The extension proposed by the amendment would be entirely inappropriate. One effect of the amendment would be to extend the Secretary of State's power so as to encompass the period before the passing of the Bill. It cannot be right for the Secretary of State to be able to stop a Scottish Bill in its tracks when it is still being considered by the Scottish parliament. Nor can I see how such a power to interfere with the parliament's proceedings could be thought necessary to protect the interests which I have described.
Clause 33 provides ample safeguards as it stands. I cannot accept the proposition that any extension is necessary. The Bill already provides sufficient time for the Secretary of State to consider the terms of a Bill and make an order if necessary.
The danger of the amendment is that the Secretary of State could intervene during consideration by the parliament of the Bill when its final form is not known. Like this Bill, a Bill is liable to significant amendment as it goes through the parliament and the Secretary of State's reservations may well be removed in the course of events. This power should be exercised only once a Bill is complete and has passed all its stages.
I hope that the noble and learned Lord will agree with that. On that basis, I ask him to withdraw the amendment.
Lord Mackay of Drumadoon: My Lords, I take the point that my amendment may be too widely drafted. However, with the greatest respect to the Minister, he has not faced up to the argument I have advanced which was touched upon by the noble and learned Lord, Lord Hope of Craighead. If one focuses on Clause 33(3)(c), there is a practical issue. If a reference is made to the
Lord Mackay of Drumadoon moved Amendment No. 132B:
Lord Sewel: My Lords, these amendments would provide that the Secretary of State could produce in court a document bearing his certificate and describing the international obligation or the interest of defence or national security upon which he has based his decision to use one of his powers of intervention under Clauses 33 or 54. Furthermore, they would provide that the document would in any legal proceedings relating to such an order be conclusive evidence of the matters detailed within it.
I appreciate that the intention behind the amendments is to provide assistance to the courts in assessing what is an international obligation or the interests of defence or national security. As the noble and learned Lord indicated, the domestic courts do not generally take cognizance of international obligations. However, I do not believe that the amendments are appropriate.
First, I note that to use the powers in Clauses 33 or 54 the Secretary of State must have reasonable grounds to believe that a particular action or provision is incompatible with an international obligation or interests of defence or national security, or that an action is necessary by a member of the Scottish executive to ensure that an international obligation is fulfilled. The order itself must state the Secretary of State's reasons for making it.
In a judicial review of the use of the powers, the question would be whether those grounds are reasonable. The Secretary of State, in making such an order, will be aware that he must be able to demonstrate that it is being made on reasonable grounds. To my mind, it is inconceivable that he could do so without describing in some detail the matters that are the subject of that order. Obviously, the courts would place appropriate weight on all the material set out in the order in reaching a conclusion.
These amendments go further and would require the evidence in the document to be conclusive evidence of the matters detailed in it. That would simply go too far. It should be for the court to judge whether the Secretary of State's evidence is conclusive in that regard. That is an extremely important and fundamental issue. It is not sufficient just for the certificate to take with it the imprint of conclusiveness. It must be a matter for the courts to decide whether the Secretary of State has acted reasonably and reached an appropriate decision. Therefore, on that basis, I hope that the noble and learned Lord will feel able to withdraw the amendment.
Lord Mackay of Drumadoon: My Lords, I am disappointed and I suspect so also will be the noble and learned Lord, Lord Rodger of Earlsferry, although I have not discussed the matter with him since he raised the issue.
The Minister's answer means that in judicial review proceedings there will be scope for a dispute, first, as to what are the international obligations of the United Kingdom, or what are the interests of the defence of the United Kingdom, or what are the interests of national security, before one moves on to the much more crucial issue of whether the Secretary of State had reasonable grounds to believe that a particular Bill was incompatible with one or other of the matters mentioned in Clause 33(1)(a).
I am quite sure that the noble and learned Lord, Lord Rodger of Earlsferry, made his suggestion in the hope that it may limit the scope and extent of judicial proceedings which may be raised to challenge any order made under Clause 33. That was certainly the purpose of bringing forward this amendment. However, the Government are quite clearly intent on resisting it, and tempted though I am, I do not seek the opinion of the House on this amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 34 [Stages of Bills]:
Page 16, line 38, leave out ("during") and insert ("before the expiry of").
The noble and learned Lord said: The amendment deals with a small point raised by the noble and learned Lord, Lord Hope of Craighead, at Committee stage when we discussed the provisions of Clause 33. As currently drafted the clause gives the Secretary of State the power to make an order prohibiting the presiding officer from submitting a Bill for Royal Assent. The
times within which that order can be made are set out in Clause 33(3)(a),(b) and (c). The noble and learned Lord had concern over Clause 33(3)(c).
He pointed out that if a reference had taken place to the Judicial Committee it would not be competent for the Secretary of State to make an order until that Judicial Committee reference had been determined in one way or another. His concern was that the Judicial Committee might well be required to take up time considering references in relation to Bills where the Secretary of State had in mind to make an order prohibiting the Bill's submission for Royal Assent. My small amendment enables the order to be made prior to the four week period referred to in Clause 33(3)(c) in addition to the four week period itself. I beg to move.
Page 17, line 6, at end insert--
("( ) A document bearing a certificate purporting to be signed by or on behalf of the Secretary of State and setting out the existence, scope and terms of any international obligations or the nature and extent of any interests of defence or national security of the United Kingdom relied upon for the purpose of an order under this section shall, in any legal proceedings relating to such an order, be conclusive evidence of the matters detailed within the document.").
The noble and learned Lord said: My Lords, this amendment is grouped with Amendment No. 146D. The amendments arise from something said in Committee by the noble and learned Lord, Lord Rodger of Earlsferry, with some support from the noble Lord, Lord Thomas of Gresford. Orders under Clause 33 will be subject to judicial review. In any such judicial review it will be necessary for the court to be informed which international obligations or interests of defence or national security are said to be relevant to the issue of whether the Secretary of State has reasonable grounds to believe that the provisions of a particular Bill are incompatible with international obligations or interests of defence or national security.
The reasoning behind Clause 33 is that it is not possible to define international obligations or interests of defence or national security in such a way as to make them parameters of legislative competence, as with convention rights of Community law. That is because the domestic courts are not normally seized of the issue of determining Britain's international obligations.
My amendments follow up a suggestion made by the noble and learned Lord, Lord Rodger of Earlsferry, that some procedure by way of certificate be evolved. This would allow the relevant Secretary of State issuing the certificate to set out, for the benefit of the other parties to any judicial review proceedings and for the benefit of the court, the particular international obligations and interests of defence or national security that he had in mind when he addressed the issue which the courts will have to review, of whether there were reasonable grounds for taking the view that a particular Bill would be incompatible with such obligations or interests of national security or defence.
My amendments are based on similar statutory provisions where, by means of certificate, the court is informed about a certain state of events or factual
circumstances relating to an issue which must be before it. There are statutory precedents for such certificates being conclusive in the way I suggest is appropriate here. In so far as the amendments take forward the suggestion made by the noble and learned Lord, Lord Rodger of Earlsferry, who was clearly looking ahead to the practicalities with which the courts will have to cope in dealing with cases arising out of the Scotland Bill, I hope that a favourable response will be received. I beg to move.
9.15 p.m.
Next Section
Back to Table of Contents
Lords Hansard Home Page