Details of Provisions
Subsection (1) provides that the Secretary of State may make an order prohibiting the Presiding Officer from submitting a Bill for Royal Assent if the Bill contains provisions:
which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security; or
which make modifications of the law as it applies to reserved matters and which he has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.
Subsection (1)(a) enables the Secretary of State to prevent a Bill from being enacted where he has reasonable grounds to believe that it would be incompatible with the UK’s international obligations.
“International obligations” are defined in section 126(10) as meaning “any international obligations of the United Kingdom other than obligations to observe and implement Community law or the Convention rights”.
In relation to EC law rights or rights under the European Convention on Human Rights (“Convention rights”), there is a vires control in the Act: section 29(2)(d) provides that any provision in an ASP which is incompatible with Community law or any of the Convention rights is outside the legislative competence of the Scottish Parliament.
However, other international obligations cannot be protected by such a vires control because, except in certain limited circumstances, they are not normally justiciable as a matter of domestic law. Accordingly, it is necessary to ensure that they can be protected by the Secretary of State by the use of the power in this section (see also section 58 in relation to the actions of the Scottish Executive).
Subsection (1)(a) also enables the Secretary of State to prevent a Bill from being enacted where he has reasonable grounds to believe that it would be incompatible with the interests of defence or national security. These are reserved matters by virtue of paragraph 9 of Part I, and Section B8 of Part II, of Schedule 5 and therefore provisions in an ASP cannot relate to them (see section 29(2)(b)). Nevertheless, an ASP could have a significant effect upon such reserved matters (see the note on section 29). In view of the national importance of defence and national security, it was thought appropriate that they should be given this special protection.
Subsection (1)(b) enables the Secretary of State to prevent a Bill from being enacted which makes modifications of the law as it applies to reserved matters and which he has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.
Provisions in an ASP cannot relate to reserved matters (section 29(2)(b)) and they, generally, cannot modify “the law on reserved matters” by virtue of section 29(2)(c) and paragraph 2 of Schedule 4. Nevertheless, they could have a significant effect upon reserved matters (see the note on section 29).
Subsection (2) requires the order to identify the Bill and the provisions concerned, and state the reasons why it is being made.
Further provisions about the making of the order are to be found in sections 112 to 115 and Schedule 7. The Order is subject to “Type I” procedure i.e. it is subject to annulment in pursuance of a resolution of either House of Parliament.
Subsection (3) gives the Secretary of State four weeks from the Scottish Parliament passing the Bill, or approving it following reconsideration, or after a reference under section 33 being decided or otherwise disposed of by the Judicial Committee, in which to make the Order.
Subsection (4) prevents the Secretary of State from making an order if he has previously notified the Presiding Officer that he does not intend to do so, unless the Parliament has meanwhile approved the Bill following reconsideration.
Subsection (5) provides that an order ceases to have effect if the Scottish Parliament approves the Bill following reconsideration (section 36(5) and under Standing Orders Rule 9.9). (See also the note on section 36(4)). If the Parliament approves the Bill, then, under subsection (3), the Secretary of State has a further 4‑week period in which to make a further order if he is still not content.
