Clause 23 of the Scotland bill would enable UK Ministers to make orders to implement international obligations that relate to devolved functions, if it’s passed. It was never part of the Calman Commission’s recommendations, but was one of the provisions added by Whitehall during the drafting process of the bill. I’m very concerned about this provision; the range and complexity of international agreements which the UK Government enters into mean that this opens the door to almost any function being controlled by the UK Government if it wishes to. No explanation of the need for this is given in Strengthening Scotland’s Future, nor have I seen one offered in the various debates about the bill. But on Wednesday the Secretary of State gave one, in his evidence to the Scottish Affairs Committee. The relevant discussion is at QQ 672-680 (though problems with the parliament.uk website mean I can’t provide a link to that at present).
The explanation the Secretary of State offered is that the UK Government only has implementation powers for England and Wales and Northern Ireland, but not for Scotland. He cited a case of two instruments made by the UK Government where it took the Scottish Government a further year to make similar legislation, regarding the European Union Military Staff and the European Organization for Astronomical Research in the Southern Hemisphere. He expressed concern about the risk that the UK Government would be at risk of breaching its international obligations in this context, and that this could occasion financial liability to the UK Exchequer.
This explanation is no justification for any such clause. First, the Secretary of State gave the Committee the impression that the clause relates to ‘European’ (i.e. European Union) matters. It has nothing to do with the EU, though, and it doesn’t need to as section 57(1) of the Scotland Act 1998 clearly leaves such a reserve power in the hands of UK ministers.
Second, very few treaties or international obligations ever create a financial liability for member states. The main ones to do so are the various EU Treaties, where breach of a member state’s obligations can create a state liability to pay damages under the Francovich principle. The European Court of Human Rights also has power to award damages, but these sums are minuscule (thousands or at most hundreds of thousands of pounds) in the context of public spending, even if they’re significant to the parties involved.
Third, there are safeguards for the UK’s financial interests in such an eventuality. Paragraph 21 of the Memorandum of Understanding gives the UK an indemnity, saying
It is agreed by all four administrations that, to the extent that financial penalties are imposed on the UK as a result of any failure of implementation or enforcement, or any damages or costs arise as a result, responsibility for meeting them will be borne by the administration(s) responsible for the failure.
Paragraph 3.2.8 of the Treasury’s Statement of Funding Policy has similar effect. In substance, then the UK has no financial stake here – it can recover any damages incurred for breach of EU and ECHR requirements from the devolved administration responsible.
Fourth, the bodies cited here are international organisations connected to the EU. There are two other ways of ensuring that the safeguard the UK seeks are available. One is to ensure that UK retains powers to legislate for them under the European Communities Act 1972, by scheduling the appropriate agreements to the 1972 Act. That might now provoke a degree of political controversy at Westminster (Eurosceptics might see it as ‘transferring powers to Brussels’) but it’s the appropriate vehicle for implementing obligations arising from the UK’s membership of the EU.
Alternatively, clause 23 could be amended to relate only to international organisations, and specifically section 1 of the International Organisations Act 1968, but not international obligations in general. International obligations proliferate, in our modern globalised world; new treaties and conventions are being signed almost every day. International organisations are much more limited in number and scope.
The boringness of what has given rise to this clause led the Committee’s chairman to describe these concerns as ‘a healthy—or unhealthy—degree of paranoia’. You don’t ask lawyers to explain what something could mean, and then dismiss the advice they give you as paranoid. Even if the UK Government has no intention to use this clause at the moment in a maximal way at the moment, governments’ intentions can change. In any case, this clause is far wider than needed for the mischief it’s there to cure. You don’t need to open up a barn door when the most that’s needed is a cat-flap.