Public Finances: Scotland

Alistair Carmichael Excerpts

Wednesday 3rd February 2016 Commons Chamber

[Greg Hands]

I was amazed by Labour’s announcement in the Scottish Parliament yesterday about wanting to increase income tax. I think it would be a disaster for the Scottish economy and for the people of Scotland, so I wholly agree with my hon. Friend.

The Smith agreement was clear: the Scottish Government should bear the economic responsibility for their decisions; or, as the Scottish Deputy First Minister has put it:

“If we take on a responsibility and make a success of it, we should bear the fruit of that; if we get it wrong, we must bear the consequences”.

I want to make three main points. Why are we doing this taxpayer devolution? The answer is to give Scotland one of the most powerful and accountable devolved Parliaments in the world. The stress there must be on the word “accountable”. Since 2010, the amount of taxes raised in Scotland and spent by the Scottish Government will have increased from around 10% to around 20% under the Scotland Act 2012, and to 40% under these proposals. These measures would also allow the Scottish Government the opportunity to grow their economy, to use new devolved powers and to see the fruits of their efforts.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

The Chief Secretary to the Treasury is right to say that accountability is at the heart of this matter. That is why we must have a deal, and if we do not get one, we in this House and those in the Scottish Parliament need to be told the reason why. Without a deal, the people of Scotland face the prospect of going to the polls in May not knowing exactly what powers will be given to the Parliament.

[Greg Hands]

I thank the right hon. Gentleman for that intervention, which leads me nicely on to the fact that the UK Government are absolutely committed to getting a deal. I announced earlier today, before the Scottish Affairs Committee, that I will be going to Edinburgh on Monday to continue the negotiations. I am hopeful that we will get—

Scotland Bill

Alistair Carmichael Excerpts

Monday 6th July 2015 Commons Chamber

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I beg to move amendment 23, in clause 31, page 30, line 34, leave out “may” and insert “must”.

[The Temporary Chair (Mr David Crausby)]

With this it will be convenient to discuss the following:

Amendment 52, page 30, line 36, leave out “Ministers” and insert “Parliament”.

Amendment 57, page 30, line 37, at end insert—

‘(1A) The Treasury and Scottish Ministers must agree a scheme transferring to the control of each of Shetland Islands Council, Orkney Islands Council and Comhairle nan Eilean Siar (“the island authorities”) on the transfer date all the existing Scottish functions and rights of the Commissioners relating to those parts of the Scottish zone surrounding each of the island authorities.

(1B) The exact extent of the parts of the Scottish zone to be transferred under subsection (lA) will be agreed by the Treasury and Scottish Ministers in consultation with the island authorities and in accordance with the principles contained within the United Nations Convention on the Law of the Sea articles 16, 74 and 84.”

This Amendment would require the relevant functions of the Crown Estate in the Shetland Islands, Orkney and Na h-Eileanan Siar (the “Western Isles”) to be transferred to the councils for those areas. Articles 16, 74 and 84 of the UN Convention on the Law of the Sea set out principles for defining geographical extent in relation to the territorial sea, exclusive economic zones and the Continental shelf respectively.

Amendment 125, page 31, line 22, at end insert—

‘( ) The scheme must not include any alteration to the Sovereign Grant Act 2011.”

The Sovereign Grant Act 2011 made provision for the honour and dignity of the Crown and the Royal Family and about allowances and pensions under the Civil List Acts of 1837 and 1952.

Amendment 126, page 31, line 22, at end insert—

‘( ) The scheme must not include any reduction in the pro rata payments due to Her Majesty under the Sovereign Grant Act 2011.”

This amendment is to ensure that Scotland continues to contribute its share towards the costs of the Monarchy.

Amendment 127, page 31, line 22, at end insert—

‘( ) The scheme must not include any permanent alienation of the rights of the Crown.”

This amendment protects the position of future Sovereigns in respect of the rights of the Crown.

Amendment 24, page 32, line 25, leave out “C” and insert “A”.

Amendment 25, page 32, line 31, leave out “then, instead of the type C procedure”.

Amendment 26, page 32, line 31, leave out “I” and insert “A”.

Clause 31 stand part.

Amendment 134, in clause 32, page 33, line 44, leave out subsection (2).

This amendment delivers a more explicit reference to the devolution of competence over gender quotas in respect of public bodies in Scotland but ensures that it is “not limited to” gender quotas, as agreed in the Smith Commission report.

Amendment 167, page 33, line 46, after “2006” insert “(other than enforcement under Part 1 of that Act)”.

Amendment 161, page 34, leave out lines 3 and 4.

Amendment 162, page 34, line 4, at end insert—

“Equal opportunities in relation to an appointment as a member of a Scottish public authority.”

Amendment 123, page 34, line 13, at end insert—

“including a requirement for gender balance among the members of the Scottish Parliament and members of boards of Scottish public authorities;”

The Amendment would ensure continued progression towards achieving gender balance among members of the Scottish Parliament and on boards of Scottish public authorities.

Amendment 168, page 34, line 18, leave out “the Equality Act 2010 and Part 1 of that Act” and insert “and the Equality Act 2010”

Amendment 135, page 34, line 25, leave out subsection (6) and insert—

“In section 2 (power to amend section 1)—

(a) in subsection (7) omit “the Scottish Ministers or”,

(b) in subsection (10), before “Ministers” insert “Welsh””

Amendment 136, page 34, leave out lines 39 to 42 and insert—

‘(4) Part 1 comes into force on such day as the Scottish Ministers may by order appoint so far as it—

(a) confers a power on the Scottish Ministers;

(b) relates to a public authority in respect of which such a power is exercisable.”

This amendment would clarify Scottish Ministers ability to commence the relevant sections of Part 1 of the Equality Act 2010, which was subject to a Legislative Consent Motion in 2010.

Amendment 137, page 35, line 2, leave out subsection (10).

Clause 32 stand part.

Amendment 27, in clause 33, page 35, leave out lines 18 and 19.

Amendment 53, page 35, line 18, leave out sub-sub-paragraph (b).

Amendment 28, page 35, leave out lines 24 and 25.

Amendment 29, page 35, leave out lines 26 to 30.

Amendment 138, page 35, leave out lines 26 to 30 and insert—

“This Schedule does not reserve the transfer of all the functions of a tribunal referred to in sub-paragraph (2) to a Scottish tribunal, so far as the functions are exercisable in relation to Scottish cases or a specified category of Scottish cases, in accordance with provision made by Her Majesty by Order in Council.”

This amendment would ensure that all functions exercisable in relation to Scottish cases or a specified category of Scottish cases should transfer to the Scottish Parliament.

Amendment 139, page 35, leave out from beginning of line 31 to end of line 7 on page 36.

Amendment 140, page 36, line 22, at end insert—

‘( ) For the avoidance of doubt, this Schedule does not reserve—

(a) a Scottish tribunal’s practice and procedure when exercising functions that have been transferred to it by virtue of this paragraph, or

(b) the fees and expenses chargeable for, or in connection with, proceedings before a Scottish tribunal when it is exercising those functions.”

This amendment makes clear that competence over a tribunal’s practice, rules of procedure and fees in relation to transferred cases becomes devolved, as per the Smith Commission recommendation.

Amendment 54, page 37, line 17, at end insert—

‘(7A) Scottish Ministers, in conjunction with the Advisory, Conciliation and Arbitration Service (ACAS) shall establish and oversee a process, involving Scottish businesses and trades unions, to end the current employment tribunal fee system in Scotland.”

Clause 33 stand part.

Amendment 141, in clause 34, page 37, line 28, leave out from “relating” to “to” in line 29.

This amendment would remove a restriction on the full devolution of speed limits in relation to emergency vehicles.

Clauses 34 and 35 stand part.

Amendment 142, in clause 36, page 41, leave out lines 15 to 18 and insert—

“(a) in relation to vehicles used on roads in Scotland means the Scottish Ministers.”

This amendment would amend section 130(3) of the Road Traffic Regulation Act 1984 so that Scottish Ministers are added into the provision as the relevant ‘national authority’.

Amendment 143, page 41, line 19, at end insert—

‘(18) In section 130 (application of Act to Crown)—

(a) in subsection (3) for “Secretary of State” substitute “relevant authority”, and

(b) after that subsection insert—

(3A) In subsection (3) “relevant authority”—

(a) in relation to vehicles used on roads in Scotland means the Scottish Ministers,

(b) otherwise, means the Secretary of State.””

This amendment would amend section 130(3) of the Road Traffic Regulation Act 1984 so that Scottish Ministers are added into the provision as the relevant ‘national authority’.

Clauses 36 and 37 stand part.

Schedule 2 stand part.

Clauses 38 to 40 stand part.

Amendment 144, in clause 41, page 42, line 32, at end insert—

‘( ) After subsection (3) insert—

(3A) Without limiting subsection (3), the Scottish Ministers may grant a licence upon the condition that the licence holder makes an annual rental payment to the Scottish Ministers.

(3B) In subsection (3A), “rental payment” means payment of an amount to be calculated by reference to the area of land to which the licence relates.””

In Clause 41, the Secretary of State has retained the power to set the consideration payable for licences. This could restrict Scottish Ministers’ ability to set other charges that form integral aspects of the licensing regime: for example, the Department of Energy and Climate Change (DECC) charge a ‘land rental’. This would enable Scottish Ministers to introduce a similar scheme in Scotland.

Clauses 41 and 42 stand part.

Amendment 30, in clause 43, page 45, line 7, at end insert—

“(aa) in the list of subject-matter, leave out “(c) the Estate Agents Act 1979,””.

Amendment 145, page 45, line 9, leave out from “insert—” to the end of subsection (8) and insert—

“The provision of consumer advocacy and advice.

Enforcement and redress for breach of consumer rights.”

(3) In Section C8 (product standards, safety and liability) after the heading “Exceptions” insert—

“The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

(4) In Section C9 (weights and measures) after the reservations insert—

“Exceptions

The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

(5) In Section C10 (telecommunications)—

(a) for the heading “Exception” substitute “Exceptions”;

(b) after that heading insert—

“The provision of consumer advocacy and advice.

Enforcement and redress for breach of consumer rights.”

(6) In Section C11 (posts)—

(a) for the heading “Exception” substitute “Exceptions”;

(b) after that heading insert—

“The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

(7) In Section D1 (electricity)—

(a) for the heading “Exception” substitute “Exceptions”;

(b) after the exception relating to the Environmental Protection Act 1990 insert—

“The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

(8) In Section D2 (oil and gas), at the end of the exceptions insert—

“The provision of consumer advocacy and advice.

Enforcement of, and redress for breach of, consumer rights.”

This amendment would provide an exception to reservation C10 in Schedule 5 to the Scotland Act which covers telecommunications and devolves responsibility for consumer enforcement and redress to the Scottish Parliament. It also removes unnecessary references to a public body and to the holder of a public office.

Clauses 43 and 44 stand part.

Amendment 146, in clause 45, page 47, line 3, leave out from “insert-“ to the end of subsection (1) and insert—

“Exceptions

The number of relevant gaming machines authorised (if any) in respect of premises licences under the Gambling Act 2005.

“Interpretation

A “relevant gaming machine” is a gaming machine (within the meaning of section 235 of the Gambling Act 2005) for which the maximum charge for use is more than £10.””.

This amendment replaces the reference to betting premises with a more general reference to gambling premises, giving full effect to Smith Commission recommendation 74.

Amendment 31, page 47, line 7, leave out “for which the maximum charge for use is more than £10”.

Amendment 163, page 47, line 7, leave out “£10” and insert “£2”.

Amendment 159,  page 47, line 8, at end insert—

“and the designation of licensing standards officers in Scotland as authorised persons for the exercise of inspection and enforcement functions in respect of such licences.”

This Amendment would allow the Scottish Parliament to include Licensing Standards Officers (LSOs) in Scotland as authorised persons who may exercise inspection and enforcement functions under the Gambling Act 2005 in respect of the number of gaming machines authorised under a betting premises licence.

Amendment 147, page 47, line 13, leave out from “means” to the end of subsection (4) and insert—

“(a) the Scottish Ministers in respect of premises in Scotland in so far as the order varies the number of gaming machines authorised (if any) for which the maximum charge for use is more than £10, or

(b) otherwise, the Secretary of State.”

This amendment replaces the reference to betting premises with a more general reference to gambling premises, giving full effect to Smith Commission recommendation 74.

Amendment 32, page 47, line 17, leave out

“for which the maximum charge for use is more than £10”.

Amendment 164, page 47, line 18, leave out “£10” and insert “£2”.

Amendment 165, page 47, line 18, after “£10” insert —

“( ) the content and the speed of play,”.

Amendment 166, page 47, line 18, after “£10” insert—

“( ) the number of staff required to supervise such machines,”.

Amendment 160, page 47, line 20, at end insert—

‘(4A) In section 304 of that Act (authorised persons), after subsection 4(c) insert—

“(d) Licensing Standards Officers (LSOs) of Scottish local authorities, appointed in terms of section 13 of the Licensing (Scotland) Act 2005.””

This Amendment would include Licensing Standards Officers (LSOs) in Scotland as authorised persons who may exercise inspection and enforcement functions under the Gambling Act 2005 in respect of the number of gaming machines authorised under a betting premises licence.

Amendment 33, page 47, line 35, leave out subsection (6).

Clause 45 stand part.

New clause 22—Obstructive parking—

‘(1) In section E1 of Schedule 5 to the Scotland Act 1998 (Road transport) after “Exceptions”, insert—

“The subject matter of sections 19 to 22 (Stopping on verges, etc, or in dangerous

positions, etc.) of the Road Traffic Act 1988;

The subject-matter of section 41(5) (Regulation of construction, weight,

equipment and use of vehicles) of the Road Traffic Act 1988 in so far as it relates

to the making of regulations making it an offence to cause or permit a vehicle to

stand on the road so as to cause any unnecessary obstruction of the road.”

(2) After section 51 of the Road Traffic Offenders Act 1988 (Fixed penalty offences) insert new section 51A—

“51A Offences under Road Traffic Act 1988

(1) Any offence in respect of a vehicle under regulations made by Scottish Ministers under section 41(5) (Regulation of construction, weight, equipment and use of vehicles) of the Road Traffic Act 1988 is a fixed penalty offence for the purposes of this Part of this Act if it is specified as such in those regulations, but subject to subsection (2) below.

(2) An offence under an enactment so specified is not a fixed penalty offence for those purposes if it is committed by causing or permitting a vehicle to be used by another person in contravention of any provision made or restriction or prohibition imposed by or under any enactment.”

(3) Before proposing a change in regulation of a subject matter falling under this section, Scottish Ministers shall—

(a) consult the Secretary of State, and

(b) publish and lay before the Scottish Parliament an assessment of the impact on road safety of any difference between the proposed change in Scotland and road traffic rules in other parts of the United Kingdom.””

This amendment is intended to ensure that offences in relation to parking on pavements can be enforced by the Scottish Parliament. Other offences would be unaffected. This amendment is based on Mark Lazarowicz’s Private Members’ Bill from the last Parliament, which was supported in principle by the then Secretary of State for Scotland.

New clause 26—Health and safety—

“In Part 2 of Schedule 5 to the Scotland Act 1998 (Employment), leave out Section H2 (Health and Safety).”

This new Clause would remove from the list of reserved matters in the 1998 Act (and so transfer to the Scottish Parliament) the subject-matter of Part I of the Health and Safety at Work etc. Act 1974 (Health, safety and welfare in connection with work, and control of dangerous substances and certain emissions into the atmosphere), the Health and Safety Commission, the Health and Safety Executive and the Employment Medical Advisory Service.

New clause 27—Business associations—

“In section C1 in Part 2 of Schedule 5 to the Scotland Act 1998 (Business associations) at the end of the exceptions insert—

“(c) the law on partnerships and unincorporated associations,

(d) the creation of new forms of cooperative enterprise,

(e) the creation of new forms of mutual enterprise,

(f) the creation of economic interest groups where the European Economic Interest Group under regulation EEC 2137/85 is not available because the members do not come from more than one member state.””

New clause 41—Scottish Government review of measures taken to promote gender equality in Scottish Parliament—

“Scottish Ministers shall, within six months of the day on which this Act is passed, publish and lay before the Scottish Parliament a comprehensive review of the measures which the Scottish Government is taking to further and to promote gender equality in the membership of the Scottish Parliament and on the boards of Scottish public authorities.”

This New Clause requires Scottish Ministers to publish a review of the measures they are taking to promote gender equality among members of the Scottish Parliament and on boards of Scottish public authorities.

New clause 47—Employment and industrial relations—

“In Part 2 of Schedule 5 to the Scotland Act 1998, omit Section H1 (employment and industrial relations).”

This new clause would devolve employment and industrial relations to the Scottish Parliament.

New clause 48—Health and safety—

“(1) In Part 2 of Schedule 5 to the Scotland Act 1998 (“the 1998 Act”), omit Section H2 (health and safety).

(2) The Health and Safety Executive is a cross-border public authority for the purposes of the 1998 Act.

(3) The 1998 Act applies in relation to the Health and Safety Executive in the same way as it applies in relation to cross-border public authorities specified in an Order in Council under section 88(5) of the 1998 Act.”

This new clause would devolve health and safety to the Scottish Parliament and designates the Health and Safety Executive as a cross-border public authority.

New clause 49—Equal opportunities—

“In Part 2 of Schedule 5 to the Scotland Act 1998, omit Section L2 (equal opportunities).”

This new clause would devolve equal opportunities to the Scottish Parliament.

New clause 56—Abortion—

“In Part 2 of Schedule 5 to the 1998 Act, leave out section J1 (abortion).”

This amendment removes the specific reservation of abortion, thus transferring competence over abortion to the Scottish Parliament.

New clause 57—Crown property—

‘(1) Part 1 of Schedule 5 to the Scotland Act 1998 (general reservations) is amended as follows

(2) Omit paragraph 2(3)

(3) In paragraph 3(3), omit paragraph (a)

(4) After paragraph 3, insert—

“3A Without prejudice to paragraphs 2 and 3, paragraph 1 does not reserve—

(a) removing or altering functions of, or conferring functions on, the Crown Estate Commissioners in relation to the holding or management of property within paragraph 3(1),

(b) where a function of the Crown Estate Commissioners of holding property is so removed, the transfer of any property held in exercise of the function.”

(5) Functions relating to Crown property are, so far as they relate to Crown property in or relating to the Scottish offshore region, to be treated for the purposes of the Scotland Act 1998 as exercisable in or as regards Scotland.

(6) In subsection (5)—

“Crown property” means property within paragraph 3(1) of Part 1 of Schedule 5 to the Scotland Act 1998,

“Scottish offshore region” has the same meaning as in the Marine and Coastal Access Act 2009 (see section 322 of that Act)

(7) In section 1(2) of the Civil List Act 1952 (payment of hereditary revenues into the Scottish Consolidated Fund), omit “from bona vacantia, ultimus haeres and treasure trove”.

This alternative to clause 31 would reduce the complexity of the current arrangements relating to the Crown Estate by removing the reservation relating to the management of the Crown Estate and provides the Scottish Parliament with full legislative competence in relation to the management of the Crown Estate in or as regards Scotland. It would also transfer any functions of the Crown Estate Commissioners in relation to rights to the continental shelf beyond the 200 nautical mile limit adjacent to Scotland.

New clause 59—Party political broadcasts—

“In Section K1 of Part 2 of Schedule 5 to the Scotland Act 1998 (broadcasting), after the reservation insert—

“Exceptions

The regulation of

(a) party political broadcasts in connection with elections that are within the legislative competence of the Parliament, and

(b) referendum campaign broadcasts in connection with referendums held under Acts of the Scottish Parliament.”

In recommending that the Scottish Parliament should have all powers in relation to Scottish Parliament and local government elections, the Smith Commission stated specifically that this would include party political broadcasts. This new clause delivers on that proposal.

New clause 60—Broadcasting—

“Leave out section K1 in Part 2 of Schedule 5 (Broadcasting) to the 1998 Act.”

This new clause would devolve broadcasting to the Scottish Parliament.

New clause 61—Levies in respect of agriculture, taking wild game, aquaculture and fisheries etc.—

“‘(1) In Part 2 of Schedule 5 to the Scotland Act 1998, Section A1 is amended as follows.

(2) In the Exceptions, after the exception for devolved taxes insert—

“Levies in respect of agriculture, taking wild game, aquaculture and fisheries (including sea fisheries) or a related activity: their collection and management.”

(3) After the Exceptions insert—

“Interpretation

“agriculture” includes horticulture, fruit growing, seed growing, dairy farming and livestock breeding and keeping, and the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds.

“aquaculture” includes the breeding, rearing or cultivation of fish (of any kind), seafood or aquatic organisms.

“related activity” means the production, processing, manufacture, marketing or distribution of—

(a) anything (including any creature alive or dead) produced or taken in the course of agriculture, taking wild game or aquaculture, or caught (by any means) in a fishery,

(b) any product which is derived to any substantial extent from anything so produced or caught.””

This new clause would give the Scottish Parliament general legislative competence in respect of agricultural, aquacultural and fisheries levies.

New clause 63—Assessment of the Scottish Parliament having the power to alter the National Minimum Wage in Scotland—

‘(1) The Secretary of State shall instruct the Low Pay Commission to undertake and publish, within 12 months of the date on which this Act is passed, an analysis of the economic impact of the Scottish Parliament having the power to alter the United Kingdom National Minimum Wage.

(2) The Secretary of State must require the analysis to assess the effects of the Scottish Parliament having the power to alter the United Kingdom National Minimum Wage on the Scottish and United Kingdom economies, with a specific focus on the following areas—

(a) the risks of establishing a two tier minimum wage across the United Kingdom, including an analysis of any possible negative impact on employment conditions for United Kingdom and Scottish workers;

(b) the importance of maintaining the principle of minimum standards across the UK, and the extent to which low pay issues differ in Scotland from the rest of the UK;

(c) the Scottish and United Kingdom labour market, in particular the effect of a different level of minimum wage in Scotland on the jobs and working hours of Scottish and United Kingdom workers;

(d) entitlement in Scotland to both devolved and reserved welfare payments;

(e) the possible effects on business investment in Scotland and the rest of the United Kingdom;

(f) any other considerations that would arise from having different minimum wages in communities on either side of the border;

(g) the institutional infrastructure required to establish, monitor and enforce it;

(h) the implications for EU Directives on Posted and Agency Workers;

(i) the impact on wage levels in Scotland and the United Kingdom; and

(j) a report on how the National Minimum Wage can rise faster in Scotland and across the United Kingdom to 58% of median earnings or more than £8 per hour by 2019.””

The new clause requires the Low Pay Commission to assess the impact on the Scottish and UK economies of the Scottish Parliament having the power to establish a different rate of the National Minimum Wage (NMW) in Scotland. The analysis includes what institutional infrastructure would be required, the relationship with EU Directives, the long-term impact on wages, and ways to faster increase the NMW, whilst maintaining the principle of the UK NMW framework.

New clause 64—Enforcement of Part 1 of Equality Act 2006—

“In the Exceptions under Section L.2 of Part 2 of Schedule 5 to the 1998 Act, insert—

“The enforcement of Part 1 of the Equality Act 2006.”

New clause 66—Health and Medicines—

“In Part 2 of Schedule 5 to the 1998 Act, leave out “Head J (Health and Medicine)””

The new clause would remove health and medicine, including abortion, xenotransplantation, embryology, surrogacy, genetics, medical supplies, poisons and welfare foods from the list of matters reserved to the UK Parliament, allowing the Scottish Parliament to make separate provision in these matters for Scotland.

[Mr Carmichael]

I welcome you back to the Chair, Mr Crausby.

We have an embarras de richesses in the range of issues before the Committee for the next three hours, so I will try to keep my remarks as brief as possible. I am pleased that at the top of the list of amendments come those from different parts of the House about the future devolution of the Crown Estate commission.

Perhaps I am on something of a roll today: the future of the Crown Estate commission has been important to me throughout my political life. The Crown Estate was the subject of my maiden speech in this House some 14 years ago, and, revisiting the issue ahead of today’s debate, it was interesting to note that there has been some progress, particularly under the auspices of its current chief executive, Alison Nimmo. We have seen a greater willingness of the Crown Estate to engage with the communities that it most directly affects, and in the previous Parliament we heard about the creation of the coastal communities fund that brought back some 50% of Crown Estate dividends relating to the use of the seabed to coastal communities around the country. That has made a significant difference to a number of projects in a wide range of communities.

It remains the case that the operation of the Crown Estate remains unsatisfactory for island and coastal communities—especially those throughout Scotland that seek to establish a future for themselves in the development of marine technologies and renewable energy generation, which continue to rely on the good will and co-operation of the Crown Estate in relation to the construction and maintenance of piers and harbours, and for which the aquaculture industry remains an important source of livelihoods for many people. We need to see that operation devolved, in particular as it relates to the function of the seabed and territorial waters.

[Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

The right hon. Gentleman says that the operation of the Crown Estate is unsatisfactory and needs to be devolved. It was unsatisfactory and needed devolving four years ago when he was in government, and he opposed its devolution. Why did he oppose that devolution and why has he now had a damascene conversion and changed his mind—on devolution not just to Scotland but to councils? Many people do not want the issue left at council level, decided in council boardrooms; they want it devolved to the islands.

[Mr Carmichael]

Four years ago, I was very much in favour of devolution to the communities: it was something on which we could not build a consensus—[Interruption.] The hon. Gentleman has asked a question; if he calmed down a little, he could listen to the answer.

Four years ago, we could not build a consensus on this issue and that was a matter for regret. I regularly pursued the issue, as I am sure the Secretary of State will recall. I am delighted now to be able to place publicly on the record my enthusiasm for devolution to council areas—possibly even sub-council areas. That is why amendment 57 seeks to facilitate the devolution to the Western Isles, Orkney and Shetland of the powers of the Crown Estate commissioners, so that the communities have the day-to-day responsibility and reap the financial benefits.

I have always been of the view that power is best exercised closest to the community affected by it, and the seabed as a resource could be much better managed if it were under the control of local communities—island communities, in particular.

[Alex Salmond (Gordon) (SNP)]

I am fascinated by this lack of consensus in the last Government. Was the current Secretary of State for Scotland someone with whom the right hon. Gentleman was unable to form a consensus on the issue of devolution of the Crown Estate?

[Mr Carmichael]

I shall allow the Secretary of State to speak for himself when he has the opportunity to do so later; I am sure we will all be on tenterhooks to hear what he has to say.

It is manifestly the case that the seabed as a resource could be better managed—and it would be if it were managed by the communities most directly affected. That would generate more income. There are tremendous opportunities for generating income from the seabed, many of which are thwarted because the Crown Estate commissioners over the years have taken an especially narrow construction of their duties under the Crown Estate legislation.

I fully accept that amendment 57 seeks to promote the interests of the Western Isles, Orkney and Shetland. I remind the House that the issue was the subject of two reports to the Scottish Affairs Committee in the last Parliament, and has also been pursued vigorously by the three island authorities in their engagement in the “Our Islands Our Future” process, which I was keen to encourage when I was Secretary of State.

I suggest that if we were able to achieve devolution to the three island authorities first, the way would be smoothed for those in the Highland region area, and Argyll and Bute in particular. I know that the issues relating to the islands and coastal communities in those council areas are very similar to those for the Western Isles, Orkney and Shetland.

[Mr MacNeil]

Would it not be a better approach to devolve to the islands? I see the Liberals are now ignoring and forgetting about Mull, Tiree and Islay, but the intention of the Scottish Government—to devolve to the island communities themselves—is a far better approach and we have to make sure we can have it in Scotland. We could have had it four years ago, when I moved an amendment on this issue. We did not get it four years ago, however, because the right hon. Gentleman and his party opposed it.

[Mr Carmichael]

I seek to build consensus today. It is unfortunate that the hon. Gentleman is not minded to do so. I say to him simply this: if he speaks to his colleagues in the Comhairle, he will find they have enthusiasm for this matter. They pressed me and others in government very hard in the previous Parliament to proceed on this. It would be to his benefit and to the benefit of his constituents if he were minded to give his support.

Amendments 27 to 29 have their genesis, as do many others, in briefings provided by the Law Society of Scotland. They relate to the administration of tribunals in Scotland. This was some of the most difficult and challenging work for both the Smith commission and the Government. The analysis of the Devolution (Further Powers) Committee in the Scottish Parliament and the Law Society of Scotland is that what remains in the Bill is imperfect, because it does not give full effect to paragraphs 63 and 64 of the Smith commission report. Paragraph 63 states:

“All powers over the management and operation of all reserved tribunals (which includes administrative, judicial and legislative powers) will be devolved to the Scottish Parliament other than the Special Immigration Appeals Commission and the Proscribed Organisations Appeals Commission.”

Paragraph 64 states:

“Despite paragraph 63, the laws providing for the underlying reserved substantive rights and duties will continue to remain reserved (although they may be applied by the newly devolved tribunals).”

In implementing paragraph 63, there must be scope for the continued reservation of the substantive law and that may take forms that will require some limitation on the functions transfer. However, it is the assessment of the Law Society of Scotland that the limitations on transfer should only be such as are objectively necessary and that they must not be unduly restrictive of the principle in paragraph 63.

It seems to be a notion of some novelty in Whitehall that tribunals can be running independently and applying legislation that goes across the whole of the United Kingdom. I could never share that analysis of novelty, having practised in sheriff courts and watched over many years the practice in the High Court and the Court of Session do exactly that. I never quite understood —perhaps the Secretary of State will be able to explain it tonight—why this is so difficult.

Amendment 30 is another Law Society of Scotland amendment. It deals with the regulation of estate agents in Scotland under the Estate Agents Act 1979. I remind the House that much estate agency in Scotland is done by firms of solicitors acting as estate agents. They do it very effectively within the context of Scottish land law practice and conveyancing which, being Roman in origin, is fundamentally different from the law applicable in other parts of the United Kingdom.

I would suggest in support of the Law Society’s amendment that devolving the regulation of estate agents makes perfect sense. It is another aspect of our business and commercial life, as well as our personal and private life, that is managed completely differently in the Scottish context and in Scottish law. It is an anomaly that we should take this opportunity to address.

Amendments 31 and 32 deal with gaming machines in licensed betting premises. They seek to remove the limitation

“for which the maximum charge for use is more than £10”.

Paragraph 74 of the Smith commission agreement stated:

“The Scottish Parliament will have the power to prevent the proliferation of Fixed-Odds Betting Terminals.”

It is the analysis of both the Law Society and, again, the Devolution (Further Powers) Committee that the Bill does not achieve that end. Removing the maximum charge would most effectively achieve the objectives set out in the Smith commission.

Likewise, the effect of new clause 26 would be to devolve the functions of the Health and Safety Executive. Health and safety enforcement in Scotland is already practically devolved. Control over occupational health issues—many of which are practically unique in profile to Scotland, such as those in offshore oil and gas and in agriculture—should now be formally devolved to Scotland. That would be a recognition of the practice that has developed since devolution and the creation of the Scottish Parliament in 1999. It is merely a recognition in law of something that is already widely practised.

Finally, new clause 27 is fairly technical and, again, was drafted by the Law Society of Scotland. It would give effect to the particular models of business incorporation that we have in Scots law and is a recognition that that, too, should be under the control of the Scottish Parliament.

[Sir Edward Leigh (Gainsborough) (Con)]

I rise to speak to my new clause 66, on health and medicines, which reads:

“In Part 2 of Schedule 5 to the 1998 Act, leave out “Head J (Health and Medicine)”.

In the helpful Member’s explanatory statement, which the Clerks helped me with, I say:

“The Amendment would remove health and medicine, including abortion, xenotransplantation, embryology, surrogacy, genetics, medical supplies, poisons and welfare foods from the list of matters reserved to the UK Parliament, allowing the Scottish Parliament to make separate provision in these matters for Scotland.”

I put forward the new clause hesitantly. I just want to probe the Government for an explanation of why the Scottish Parliament is not going to be allowed, under our Scotland Bill, to debate or decide these matters.

These matters are, of course, of vital interest to any nation. I well recall that whereas our debates on, say, social security, when we are discussing spending extra billions of pounds, are sometimes extremely poorly attended and attract very little interest, as soon as we get into what I would call these “Moral Maze” issues, where people have strong personal views and there are often free votes, our Parliament really comes into its own. That is what makes a Parliament. It is part of being a Parliament, and what we are trying to create in the Scottish Parliament is, in its essence, a real Parliament. Scotland may be a small nation, but it is a proud nation and it has its own individual point of view, which I would have thought was best determined by the Scottish people, through their Parliament.

--- Later in debate ---

[Mr MacNeil]

I rise to oppose or to provide a different perspective on the amendments tabled by the right hon. Member for Orkney and Shetland (Mr Carmichael). I fear that he wants to do two damaging things through his amendments. He wants to bind what the Scottish Government are doing in regard to other islands by devolving to island council authorities when the ambition should be greater and power should be given to communities. What we have is not a defined community, but a community or group of individual communities. His amendments are also restrictive, and I think it is wrong for this Parliament to tell the Scottish Parliament what it should do in the next step of devolving powers. It would be far more useful and far more innovative if the Scottish Parliament had the flexibility to do what it saw as right rather than putting into the long grass the cases of our islands of Mull, Tiree, Coll or Islay, or a number of other islands that are not mentioned here.

[Mr Carmichael]

I remind the hon. Gentleman that my amendment provides for agreement between the Scottish Government and the Treasury. Surely that would make the design of the scheme open to full input from the Scottish Parliament.

[Mr MacNeil]

If the right hon. Gentleman wants the full input of the Scottish Parliament, why is he trying to bind its hands? He should leave his amendment to one side and leave the Scottish Parliament as the most democratic institution and forum representing the Scottish people, allowing us to arrive at the most democratic, most sought and most wanted forum as the solution.

We know from the island authorities that they are more than happy with the direction of travel that the Scottish Government have taken. I come from one of the minor islands within a local authority area, and I know that the people who live in my island want to control themselves, not be controlled by a council chamber 100 miles away. From Uist, the council chamber is 70 to 100 miles away, while Harris, linked to the same island geographically, does not want to be controlled in Stornoway 45 miles away. In Ness and Lewis, they would rather have control themselves. We need to look at what the communities want, rather than sitting here in Westminster and prescribing what is required in these places. Let us make sure that we give the Scottish Parliament the power and authority, and then we can discuss with the communities exactly what they want, rather than have grandstanding amendments. These amendments stand in direct contradiction to where the right hon. Gentleman was four years ago—in government and in a position to influence, but he did not do so.

--- Later in debate ---

[Mr Carmichael]

I remind the hon. Gentleman that the Western Isles Council, the Comhairle themselves, were urging me to take this course of action. Do they not have democratic legitimacy as well?

[Mr MacNeil]

Absolutely, and when the right hon. Gentleman was in government and he was urged to do this, what did he do about it? Did his Government take the advice of the Comhairle nan Eilian Siar when he was in government?

[Mr Carmichael]

If the hon. Gentleman speaks to his colleagues in local government—I know he does not always do so—I am pretty sure that they will tell him that I was an enthusiastic promoter of their cause within government.

[Mr MacNeil]

I know what they wanted, but it is clear from that answer that the right hon. Gentleman did not take their advice. He had no influence on that Government, but he is now telling us to take their advice. He has a very different agenda. If he had accepted our amendment four years ago, we would already have had control, because the Scottish Government would have given it to us. In fact, he was a blocking force and an obstacle to progress for Scotland four years ago, as he still is. As for his colleagues who were here at the time, as a result of that very attitude, they are gone. Instead, I am one of 56 Scottish National party Members, rather than the mere five last time. I should thank the right hon. Member for Orkney and Shetland for his intransigence four years ago, because it was that very intransigence that led to this raft of colleagues beside me, together debating the Scotland Bill.

The Crown Estate has tremendous control over areas of life in Scotland. It takes millions out of salmon farming each year, and we want more control over what we are doing there. We could stimulate growth and activity in different areas. If we control the taxes, we can do what we feel like. We could do something about revenues from marine renewable energy going south and ensure that they stay within Scotland. We could also ensure that no development is hampered because of the money demanded by the Crown Estate—rentiers’ money that it is lucky to be getting. Years ago, it got nothing from the seabed, but a lucky windfall has now come its way in the shape of offshore renewables.

What is required is for the powers to go to the Government in Edinburgh and for that Government to decide what happens with the community of the realm in Scotland. That is where power and sovereignty rests—with the community of the realm and the people of Scotland. It is for them to decide exactly what they want. Yes, the powers should be devolved. As the Secretary of State said four years ago, the idea of the SNP was to devolve at any cost. He did not listen then, but by goodness, he is listening now.

Scotland Bill

Alistair Carmichael Excerpts

Monday 15th June 2015 Commons Chamber

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I beg to move amendment 16, page 1, line 7, leave out first “A” and insert “The”

[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Amendment 37, page 1, line 7, leave out “is recognised as” and insert “shall be”.

Amendment 17, page 1, line 7, leave out “recognised as”.

Amendment 58, page 1, leave out lines 7 and 8 and insert—

‘(1A) The Scottish Parliament is a permanent part of the United Kingdom’s constitution.

(1B) Subsection (1) or (1A) may be repealed only if—

(a) the Scottish Parliament has consented to the proposed repeal, and

(b) a referendum has been held in Scotland on the proposed repeal and a majority of those voting at the referendum have consented to it.”

This amendment is to ensure that the Scottish Parliament can only be abolished with the consent of the Scottish Parliament and the Scottish people after a referendum.

Amendment 38, page 1, line 8, at end insert

“and may not be abolished without the consent of the Scottish people given effect by an Act of the Scottish Parliament”.

Amendment 18, page 1, line 12, leave out “recognised as”.

Amendment 59, page 1, leave out lines 12 and 13 and insert—

‘(1A) The Scottish Government is a permanent part of the United Kingdom’s constitution.

(1B) Subsection (1) or (1A) may be repealed only if—

(a) the Scottish Parliament has consented to the proposed repeal, and

(b) a referendum has been held in Scotland on the proposed repeal and a majority of those voting at the referendum have consented to it.”

This amendment is to ensure that the Scottish Parliament can only be abolished with the consent of the Scottish Parliament and the Scottish people after a referendum.

Clause 1 stand part.

Amendment 89, in clause 11, page 13, line 42, at end insert—

‘(2A) In paragraph 4 of Schedule 4 (protection of Scotland Act 1998 from modification), insert new sub-paragraph—

“(5A) This paragraph does not apply to amendments to Schedule 5, Part II, Head A, Section A1 insofar as they relate to:

(a) taxes and excise in Scotland,

(b) government borrowing and lending in Scotland, and

(c) control over public expenditure in Scotland.”

This amendment would enable the Scottish Parliament to amend the Scotland Act 1998 to remove the reservation on taxation, borrowing and public expenditure in Scotland, with the effect that the Scottish Parliament could then legislate in these areas to provide for full fiscal autonomy in Scotland.

New clause 2—Constitutional convention—

‘(1) The Prime Minister shall establish a Constitutional Convention within one month of the day on which this act is passed.

(2) The Chair and Members of the Constitutional Convention shall be appointed in accordance with a process to be laid before, and approved by, resolution in each House of Parliament.

(3) The Chair of the Constitutional Convention is not permitted to be a Member of Parliament or a member of a political party.

(4) Members of the Constitutional must include, but not be limited to, the following—

(a) members of the public, chosen by lot through the jury system, who shall comprise the majority of those participating in the convention;

(b) elected representatives at all levels;

(c) representatives of civil society organisations and, in an advisory role, academia.

(5) The Constitutional Convention shall review and make recommendations in relation to future governance arrangements for the United Kingdom, including but not limited to the following—

(a) the role and voting rights of Members of the House of Commons;

(b) democratic reform of the House of Lords;

(c) further sub-national devolution within England;

(d) codification of the constitution.

(6) The Constitutional Convention shall engage in widespread consultation across the nations and regions of the UK, and must provide a report to both Houses of Parliament by 31 March 2016.

(7) The Secretary of State must lay before both Houses of Parliament a formal response to each recommendation of the Constitutional Convention within four months of the publication of the final report from the Constitutional Convention.’

This New Clause provides an outline for a Constitutional Convention selected from the widest possible number of groups in society to analyse and design future governance arrangements for the United Kingdom, and to report by 31 March 2016.

New clause 3—Transfer of reserved matters—

‘(1) Schedule 5 (which defines reserved matters) to the Scotland Act 1998, has effect with the following modifications.

(2) In Part I (general reservations) omit paragraph 6 (political parties).

(3) Part II (specific reservations) is omitted.

(4) Insert Part IIA (UK pensions liability) as follows—

Part IIA

UK Pensions liability

The consent of the Treasury is required before the enactment of any provision passed by the Scottish Parliament which would affect the liabilities of the National Insurance Fund in respect of old age pensions.”

(5) In Part III (general provisions) the following provisions referring to Part II of the Schedule are omitted—

(a) paragraph 3(2);

(b) paragraph 4(2)(c).’

This Amendment would allow the Scottish Parliament to make provision for the registration and funding of political parties, but would otherwise retain the Part I reserved matters covering the constitution, foreign affairs, public service, defence and treason. It would entirely remove the remaining reservations over financial and economic matters, home affairs, trade and industry, energy, transport, social security, regulation of the professions, employment, health and medicines, media and culture and other miscellaneous matters. The consent of the Treasury would be needed for any changes in old age pensions which would affect the liabilities of the National Insurance Fund.

New clause 6—Constitution of Scotland—

‘(1) The 1998 Scotland Act shall be cited as The Written Constitution of Scotland.

(2) A standing Scottish Constitutional Convention shall be convened jointly by the Secretary of State and the Scottish Ministers to conduct reviews and to make recommendations to the Scottish Parliament and the Parliament of the United Kingdom.’

The New Clause renames the Scotland Act 1998 and introduces a standing Scottish Constitutional Convention.

New clause 7—Application of the Parliament Acts to the Scottish Parliament and the Scottish Government—

‘(1) The Parliament Act 1911 is amended as follows.

(2) In subsection 2(1), after “other than a Money Bill”, insert “or a Bill amending sections 1 or 2 of the Scotland Act 2015.’

The New Clause entrenches the permanence of the Scottish Parliament and the Scottish Government by ensuring that changing Clauses 1 and 2 of the Bill once enacted would be possible only with the consent of both Houses of Parliament.

New clause 8—Scottish Parliament nomination of members of the House of Lords—

‘(1) The Scottish Parliament shall nominate members for appointment to the House of Lords, in a method to be determined wholly by the Scottish Parliament.

(2) The number of members of the House of Lords appointed in accordance with this section shall at any time be in broadly the same proportion to the total membership of the House of Lords as the population of Scotland is to the total population of the United Kingdom.’

The New Clause would require the Scottish Parliament to nominate members to sit in the House of Lords in proportion to Scotland’s share of the United Kingdom population.

New clause 9—Constitutional convention—

‘(1) Within one month of the day on which this Act is passed, a constitutional convention is to be held to consider and make recommendations on the constitution of the United Kingdom.

(2) The Secretary of State must make regulations to—

(a) appoint a day on which the convention must commence its operations,

(b) make fair and transparent rules about how the convention is to operate and how evidence is to be adduced,

(c) make further provision about the terms of reference prescribed under section 2, and

(d) specify how those who are to be part of the convention are to be chosen in accordance with subsection (8).

(3) The date appointed under subsection (2)(a) must not be later than 31 December 2016.

(4) A statutory instrument containing regulations under subsection (2), if made without a draft having been approved by a resolution of each House of Parliament, is subject to annulment in pursuance of a resolution of either House of Parliament.

(5) The convention shall have the following terms of reference—

(a) the devolution of legislative and fiscal competence to and within Scotland and the rest of the UK,

(b) the devolution of legislative and fiscal competence to local authorities within the United Kingdom,

(c) electoral reform,

(d) constitutional matters to be considered in further conventions, and

(e) procedures to govern the consideration and implementation of any future constitutional reforms.

(6) The convention must publish recommendations within the period of one year beginning with the day appointed under subsection (2)(a).

(7) The Secretary of State must lay responses to each of the recommendations from the convention before each House of Parliament within six months beginning with the day on which the recommendations are published.

(8) The convention must be composed of representatives of the following—

(a) all registered political parties within the United Kingdom,

(b) civic society and local authorities of the nations and regions of the United Kingdom.’

The New Clause would require the appointment of a convention to review the operation of the Act resulting from the Scotland Bill in the wider context of the Union.

Amendment 1, in clause 63, page 67, line 24, leave out paragraph (a).

This amendment provides that section 1 will not come into force on the day on which the Act is passed, in order to link the commencement of Part 1 of the Act (Constitutional arrangements) with the work of the Constitutional Convention, outlined in New Clause NC2, which would be required to report by 31 March 2016.

Amendment 2, page 67, line 26, at end insert—

‘(1A) Part 1 comes into force within one month of the publication of the report of the Constitutional Convention appointed under section (Constitutional Convention).”

This amendment provides that Part 1 of the Act (Constitutional arrangements) comes into force after publication of the report of the Constitutional Convention, as outlined in New Clause NC2, which would be required to report by 31 March 2016.

[Mr Carmichael]

Amendments 16, 17 and 18 are essentially probing amendments, authored by the Law Society of Scotland. Subject to the response that we hear from Ministers and from those in other parts of the House, it is not my intention to seek to press them to a Division.

The amendments change the nature of clause 1 from one that recognises the permanence of the Scottish Parliament to one that declares it. The genesis of the clause was the Smith commission report, which required that there should be a statement in the legislation to follow it that the Scottish Parliament and the Scottish Government were permanent institutions. The form of words in clause 1 was inserted by the draft clauses published at the end of January, which recognised that permanence. The permanence of the Scottish Parliament is to be found not in any amendment or statutory enactment, but in the will of the Scottish people. It is a permanent institution because, frankly, it is unthinkable that it would be repealed at this point. For that reason, and given the comments of the Scottish Parliament’s Devolution (Further Powers) Committee, it is right that we should revisit the issue.

At the heart of this debate is the issue and the definition of sovereignty. The context is a classic Diceyan definition of sovereignty, which says that Parliament here is sovereign. Although matters have moved on somewhat over the years and although it remains the case that Parliament cannot bind its successors, it is undoubtedly the case that since the European Communities Act 1972 we have taken a different view of parliamentary sovereignty, one in which sovereignty is shared with the European Union, as it now is, in Brussels, the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly and even the London Assembly. It was the subject of considerable debate during the constitutional convention back in the late 1980s and early 1990s.

The view that was taken then, which as I recall was contained in the claim of right, was that in Scotland the Diceyan version of sovereignty—that Parliament is sovereign—has never been the case, and that sovereignty has always been vested in and remained with the people of Scotland. From that point of view, I see considerable merit in amendment 58 in the name of the hon. Member for Moray (Angus Robertson) and his colleagues in the Scottish National party, requiring that if there were ever to be a repeal of the Scotland Act 1998 it could be done only with the consent of a majority voting in a referendum. That honours and respects the view that sovereignty lies with the people in Scotland.

However, even that clause could be got around by a simple repeal, a consequence of the doctrine that Parliament cannot bind its successors. As long as we try to do these things by way of primary legislation, we will keep tying ourselves up in knots and any solution that we bring forward will lack permanence and will be unsatisfactory.

[Mr Graham Allen (Nottingham North) (Lab)]

Does the right hon. Gentleman recall that the former Member for Monklands East and leader of the Labour party, John Smith, said that the British constitution, which embraces the Scottish constitution, should not be a matter of judicial archaeology—that was the phrase he used—but should be put down plainly as a written constitution for all to see? Is that where his argument is going? I hope it is.

[Mr Carmichael]

I have long held that view. I cannot remember a time in my conscious political being that I have held a view other than that. It is never going to be easy to get to that point, of course, and it will require a fundamental change in the way we do things. The reference to judicial archaeology is interesting, because it would render some of the things that were done in this place reviewable in the courts. As long as there is a proper separation of powers, I am quite happy with that.

[Mike Weir (Angus) (SNP)]

I hear what the right hon. Gentleman says about amendment 58, and he is correct that Parliament cannot bind its successors, but if we put it into the Bill that there has to be a referendum of the Scottish people before there can be a change, that is a very powerful moral argument against this place, and the strongest we can make under the current constitutional settlement.

[Mr Carmichael]

Indeed, and it is for that reason that I said that I saw some merit in the proposal. The hon. Gentleman would have to accept, though, that the point I have already made—that even that could be repealed by a simple vote in this Chamber and the other place—will always be a problem for any Government seeking to do that by way of primary legislation.

--- Later in debate ---

[Mr Carmichael]

I actually agree with the right hon. Gentleman on that point. Indeed, I see the Bill as the start of a process that must continue, because we risk putting an intolerable strain on the Union if we proceed with constitutional change that relates only to Scotland and not to the rest of the United Kingdom, particularly in relation to the different parts of England. As far as the future of the English constitution is concerned, the only point on which I am clear is that there is absolutely no consensus on the shape that it ought to take. I stood at the Dispatch Box often enough during the previous Parliament, answering questions from both sides of the House, and being told, “This is what we need”, and I rarely heard the same proposition twice. It is for that reason that, if we are to have a written constitution, we must first have a constitutional convention, because we will never build the necessary consensus for this sort of constitutional change merely within Parliament. That was the experience with Scotland’s constitutional convention in the 1990s, and it was then the lesson of the Smith commission and, before it, the Calman commission.

[Frank Field]

While the right hon. Gentleman opposes those doubts, does he not accept that, given that we are now in the process of changing our constitution and meeting the wishes of the Scottish people, we in England will probably not have to wait as long for opinion to come together on what England needs as the pioneers had to wait to get justice for Scotland?

[Mr Carmichael]

I am heartened by the right hon. Gentleman’s optimism in that regard; I always think that achieving consensus in these matters is much easier to talk about than to get. Frankly, that is a debate that England now needs to have for herself. It is certainly not for us to intervene in it, any more than we would have welcomed the intervention of the English, Welsh or Northern Irish in the constitutional convention discussions of the 1990s. I wish the English every bit as much joy with it as we have had in Scotland with our constitutional debate over the years.

The hon. Member for Edinburgh South (Ian Murray) has tabled a new clause proposing a constitutional convention, and there is a great deal in it that I find worthy of support, particularly the requirement that it be convened within a month of the Bill becoming an Act, because I do not think that these matters become any easier by being left. I am also impressed by the fact that it has a reporting date, which I suggest would serve to concentrate minds.

Speaking as a Scottish Member, I think that the hon. Gentleman’s proposal has the further benefit of allowing a constitutional convention to go ahead; we would be saying today that it is something that is going to happen, but it would not in fact delay the passing of the Bill. In order to hold faith with the 55% of the people of Scotland who voted no last September, I think that we should proceed with the Bill with all due dispatch. I do not think that it would be acceptable for the passing of the Bill to be somehow contingent on constitutional arrangements being refined elsewhere in the United Kingdom.

I would have preferred—inevitably so—to see included in the remit of the proposed constitutional convention the question of electoral reform, for which I think there is now greater support in the Labour party, but I would not let that omission stand between me and supporting the Bill today.

[Ian Austin (Dudley North) (Lab)]

I congratulate the right hon. Gentleman on the case he is making in his usual eloquent and persuasive way. Many Members on both sides of the Committee will welcome the fact that he is here and will want to express our support for him and tell him how much we hope that he is successful in standing up to the Scottish National party Members sitting in front of him, who clearly want to create a one-party state in Scotland and whose supporters engage in the most disreputable bullying tactics in order to silent any dissent in that country.

[Mr Carmichael]

I will take support anywhere I can find it, but I am not entirely sure that the hon. Gentleman’s remarks are germane to the matter that is before the Committee.

Amendment 89, which was tabled by the Scottish National Party, will facilitate a debate on the concept of full fiscal autonomy. I shall listen with interest to the hon. Member for Moray and others in their exposition of that, and I shall reserve my remarks on it until the end of this string of amendments, when I know I will be able to catch your eye, Mr Hoyle.

[Sir Edward Leigh (Gainsborough) (Con)]

New clause 3, which stands in my name, would deliver full fiscal autonomy, real home rule and a Scottish Parliament in control of everything save defence and foreign affairs. I am only a Back Bencher and I do not have the assistance of Government officials, so if the new clause is defective in technical detail, I apologise. If it were voted for tonight, however, it would establish a clear principle and a way forward.

The contention is clear: the new clause would deliver full fiscal autonomy. The Scottish Parliament would have full freedom to raise all taxes as it liked. It would not be restricted to fiddling around with bands; it would control all thresholds and all VAT dividends, and it would have full freedom to spend that money as it liked. That is what real Parliaments do, and that is why they are responsible.

The Scottish Parliament is constructed in a manner that is inherently conducive to the culture of grievance, and that would still be true even if the Smith commission proposals were adopted. The Scottish Parliament will raise only 50% of what it spends. Worse, under the 30-year-old, discredited Barnett formula, which even its conceiver condemned towards the end of his life, Scotland’s block grant will be based not on needs but on English levels of spending. No matter which tartan is chosen to clad the Scottish purse, the purse strings will still be controlled by England. That, I believe, has to change.

Following reports by the Office for Budget Responsibility and the Institute for Fiscal Studies, it has been said that Scotland faces a £7 billion black hole. Presumably, however, the SNP wanted independence in the next year. We cannot have an independent Parliament that does not have full fiscal autonomy, so let us have a real, informed debate about the figures.

--- Later in debate ---

[Pete Wishart]

My hon. Friend always gets right to the heart of the matter. We know that everything in this Bill that we have been trying to secure is supported by the Scottish people. It is also supported by the massed ranks of SNP Members here, and by the 60% of the Scottish people who want everything devolved to the Scottish Parliament other than foreign affairs, defence and treason. The hon. Member for Gainsborough (Sir Edward Leigh) forgot to mention treason in his list of powers that would remain reserved. An opinion poll last week showed not only that we won more than 50% of the vote but that we are now on course to win 60% of the Holyrood vote next year. It showed that there is a clear desire to ensure that we move forward progressively.

I shall turn to the central issues in the Bill, starting with the permanence of the Scottish Parliament. That was about the most useful thing to emerge from the Smith commission’s report. It followed the vow that was reported in the Daily Record as stating that the permanence of the Parliament should be a predominant issue. We were disappointed that the draft Scotland Bill could not find an appropriate form of words to encapsulate that proposal. The thing that has struck me is the Scottish people’s surprise that this House could actually do away with the Scottish Parliament. I do not think that people really believed that that was the case. We have to resolve this issue.

The Scottish Parliament is now the key focus of the national debate on our nation and our political culture in Scotland. As we have continued to secure more and new powers for the Scottish Parliament, it has become an intrinsic feature of what we are about as a nation. The fact that this House can simply decide, perhaps on a whim, to abolish the Scottish Parliament is totally unacceptable to the Scottish people and has now to be put right. We have this one opportunity to address it by getting our amendment through this evening—we could sort this out.

I pay tribute to the right hon. Member for Orkney and Shetland (Mr Carmichael) because he recognised that situation when he was Secretary of State for Scotland. He said—I paraphrase him and I will let him intervene if I have this wrong—that something must be done about it. It was then thrown over to the new Secretary of State to pick up; it now falls in his lap, and he has to address it and ensure that we get what we want, which is the permanence—

[Mr Alistair Carmichael]

Does the hon. Gentleman accept, however, that by doing this through primary legislation any solution—any form of words—is always going to be imperfect, and that the only way we will genuinely recognise the political reality that is the permanence of the Scottish Parliament is through a written constitution, and for that we need a constitutional convention?

[Pete Wishart]

There is very little I would disagree with the right hon. Gentleman about on these things, and I agree that there is a real requirement for a written constitution in this country. But let me suggest another way we can get the permanence for the Scottish Parliament, as set out in our amendment 59: by putting this to the Scottish people in a referendum. The only way then that the Scottish Parliament would ever be abolished or done away with would be on the say-so of the Scottish people, as a directly expressed desire through a referendum. I hope the right hon. Gentleman supports us in that amendment this evening, because it is the way to go forward.

That deals with the permanence issue. We have not heard much about another matter, despite several of my friends from south of the border having spoken in this debate. I refer to new clause 2 on the constitutional convention, which I believe the hon. Member for Edinburgh South (Ian Murray) is still to speak to. That has been a long-standing policy of the Labour party and it was central to its manifesto at the last election—I have to say that Labour did not have a great deal of success when it was put to the people of England. My problem with this idea that Scottish devolution and our constitutional journey should be mashed together with a UK-wide look at the constitution is that it would slow down our very clear progress and our clear statement of where we want to go. The cause of English devolution moves at an almost glacial pace, and any suggestion that we have to be slowed down, as England rightly works out what it wants to do, has to be rejected this evening. Just piggy-backing Labour’s concerns about a constitutional convention and about English devolution on to a Bill about Scotland, and the things we were promised in the vow and that were progressed with the Smith commission is totally unacceptable. I say to the Labour party: do the work yourselves. There is no need to bring it to a Scotland Bill in order to progress this agenda. Bring in your own piece of legislation. Bring it in however you like and we will play a part in that. There are interesting things to be discussed on the further progress of constitutional change all over the UK.

--- Later in debate ---

[David Mundell]

I said that I would reflect on a number of the issues raised by the right hon. Member for Orkney and Shetland (Mr Carmichael) relating to proposals by the Law Society of Scotland. Among those is the debate on the wording currently in part 1, and we will certainly look at that.

I do not accept amendments 58 and 59 because they refer to the term “constitution” whereas clause 1 refers to the term “constitutional arrangements”. The term “constitutional arrangements” is used to reflect the fact that the United Kingdom does not have a written constitution. That is a well-established constitutional arrangement of which a Scottish Parliament is a crucial and enduring part.

In new clause 2, the hon. Member for Edinburgh South (Ian Murray) proposes a constitutional convention. I have said at this Dispatch Box previously that I, and this Government, do not support a constitutional convention for reasons that have been well rehearsed, not least because—on this one matter I am in agreement with the Scottish National party—it would slow down the progress of this Bill, which I am committed to taking through Parliament as quickly as possible.

Other matters have been raised and we have debated them fully but they do not fully relate to the Bill. On that basis, I propose that we move to vote on the amendments.

[Mr Alistair Carmichael]

I am mindful of the fact that we have spent a considerable amount of time on this group of amendments, so I will not detain the Committee for long at this stage.

We have had a very good debate; in fact, two very good debates. On the first, there is among the three Opposition parties a broad measure of consensus that the Bill is capable of improvement. I will hold the Secretary of State to his word when he says that he will take that away and look at it. I remind him that while he might win a majority quite easily in this House, the Bill will also be scrutinised in the other place. I urge on him further consideration and suggest that the proposals brought forward by me and others tonight—I do not intend to press mine to a vote, but others who choose to do so will have my support—are reasonable.

I was very disappointed by the Secretary of State’s response on the constitutional convention. Ultimately, if we are to continue with this Union, a federal structure is inevitable. That will have to be grasped sooner or later, and the way in which that will be done is through the calling of a constitutional convention.

There has not been the same level of consensus on our other debate about the proposals for full fiscal autonomy. It has not been a particularly good debate: it has been characterised more by the heat it has generated than the light. Like the hon. Member for Edinburgh East (Tommy Sheppard), I favour the idea of evidence-based policy. I am not without sympathy for those on the SNP Front Bench when they say that they could do things differently with the extra powers that would be given to them. However, to simply say that it could all be done by generating extra economic growth is not good enough.

--- Later in debate ---

[Mr Carmichael]

No, I am just winding up.

They voted for a family of nations whereby we all put in and all take out at different times, with different measures and in different ways, with a single market, offering a single system of regulation and of business taxation. That is what my constituents voted for, both in this election and in last year’s referendum. For that reason, I will certainly not vote with the Scottish nationalists or, indeed, with the English nationalists on the Conservative Back Benches if they are minded to press their proposals to a vote. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 58, in clause 1, page 1, leave out lines 7 and 8 and insert—

“(1A) The Scottish Parliament is a permanent part of the United Kingdom’s constitution.

(1B) Subsection (1) or (1A) may be repealed only if—

(a) the Scottish Parliament has consented to the proposed repeal, and

(b) a referendum has been held in Scotland on the proposed repeal and a majority of those voting at the referendum have consented to it.”—(Angus Robertson.)

This amendment is to ensure that the Scottish Parliament can only be abolished with the consent of the Scottish Parliament and the Scottish people after a referendum.

Question put, That the amendment be made.

--- Later in debate ---

[Angus Robertson]

It is an honour to serve under your chairmanship, Mr Crausby, and to follow the hon. Member for Nottingham North (Mr Allen). I can give him the assurance that my right hon. and hon. Friends on the Scottish National party Benches will be resolute in our support of the Human Rights Act and the European convention on human rights.

I would like to speak to new clause 10. Paragraph 22 of the Smith report, entitled “Scottish Parliament consent to the UK Parliament making law in devolved areas”, recommended, simply and with no room for ambiguity, that

“The Sewel Convention will be put on a statutory footing.”

The details of clause 2 are therefore really important. The Scotland Bill, as drafted, seeks to implement this recommendation by adding a new subsection (8) to section 28 of the Scotland Act 1998. The positioning of this new provision is significant because the provision before it, section 28(7), makes an unambiguous assertion of Westminster’s parliamentary sovereignty and the legislative supremacy of the UK Parliament. Section 28(7) declares:

“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”

This is therefore a clear statement that Westminster continues to have the legal power to legislate for Scotland across devolved, as well as reserved, areas of public policy. Clause 2 inserts section 28(8), which states:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

In paragraph 61 of its report, the Scottish Parliament Devolution (Further Powers) Committee considered that the draft clause placed

“the purpose of the Sewel Convention in statute”—

but—

“does not incorporate in legislation the process for consultation and consent where Westminster plans to legislate in a devolved area.”

In addition, the Committee recommended that the words “but it is recognised” and “normally” in the draft clause should be removed because they weaken the intention of the Smith recommendations. We agree with the all-party Committee’s analysis.

The current clause fails to implement the Smith recommendation in three respects. First, on amendments to the legislative competence of the Scottish Parliament, the Sewel convention, as set out in devolution guidance note 10, also requires the consent of the Scottish Parliament to Westminster legislation that alters the legislative competence of the Scottish Parliament or the Executive competence of Scottish Ministers. The clause does not refer to either of those categories. This is a significant omission. As the House of Commons Political and Constitutional Reform Committee noted, and as the hon. Member for Nottingham North no doubt remembers:

“We heard in oral evidence from Professor McHarg and in written evidence from Dr Adam Tucker and Dr Adam Perry that the draft clause failed to acknowledge the full scope of the Sewel Convention as it is currently applied in practice. The clause refers only to the Convention’s applicability in respect of devolved matters: it was pointed out to us that the Convention is also applied to legislation affecting the competences of the devolved institutions.”

This is reflected in the UK Government’s devolution guidance note 10, which states that a Bill requiring Scottish parliamentary consent under the Sewel convention is one which

“contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers.”

DGN 10 is referred to in the Command Paper, containing the draft clauses, as follows: “It is expected that the practice developed under Devolution Guidance Note 10 will continue.”

DGN 10 has no legal effect, but sets out how the UK Government Departments legislating in Scotland will meet the terms of the convention. This practice is not reflected in the drafting of clause 2.

Secondly, on statute as a convention, the clause puts the Sewel convention into legislation as a convention, rather than putting the convention on a statutory footing. As the Scottish Government have pointed out to the Scottish Parliament Committee, this is very different from precedents where the UK has placed other conventions on a statutory footing, such as the Ponsonby convention relating to treaty ratification. Again, as the House of Commons Political and Constitutional Reform Committee noted:

“We consider that draft clause 2 does not give the Sewel Convention the force of statute, but may strengthen the Convention politically. We believe it fails to acknowledge that the Convention extends to legislation affecting the competences of the devolved institutions. We recommend that the presence of the word ‘normally’ in the Sewel Convention, and the applicability of the Convention to legislation affecting the competences of the devolved institutions, be addressed in any redrafting of draft clause 2.”

Thirdly, on the consultation requirement, as has been widely noted and as set out in DGN 10, the effective operation of the Sewel convention depends on consultation between the Scottish and UK Governments, which the Secretary of State for Scotland made play of earlier. The clause, however, fails to include any consultation requirements.

The Scottish Government’s alternative clause, which we have tabled as a new clause, addresses those deficiencies and properly places the Sewel convention on a statutory footing. The opening subsection of the alternative adds to section 28 of the Scotland Act by providing a clear statement of the Sewel convention that the UK Parliament must not pass Acts applying to Scotland about a devolved matter without the consent of the Scottish Parliament. It then defines “about a devolved matter” to encompass all three categories covered by DGN 10: legislation in a devolved area; changing the legislative competence of the Scottish Parliament; and adjusting the Executive competence of the Scottish Government.

The alternative clause then provides for a new section 28A to be inserted into the Scotland Act. This is a straightforward consultation provision requiring the UK Government to consult the Scottish Government before introducing to Westminster Bills that apply to Scotland. Where the Westminster Bill would require the consent of the Scottish Parliament under section 28, as amended, the UK Government should share a copy of the provisions of the Bill that apply to Scotland with the Scottish Government 21 days before introduction at Westminster. However, there is an understanding that, on occasion, it is necessary to expedite the legislative process, and therefore the alternative clause is pragmatic and flexible in allowing the consultation requirement to be curtailed in certain circumstances.

The Scottish Parliament has of course looked at the clauses proposed by the Government, and its Devolution (Further Powers) Committee considered

“that the current draft clause, whilst placing the purpose of the Sewel Convention in statute, does not incorporate in legislation the process for consultation and consent where Westminster plans to legislate in a devolved area. The Committee considers that it should do so. Moreover, the Committee considers that the use of the words ‘but it is recognised’ and ‘normally’ has the potential to weaken the intention of the Smith Commission‘s recommendation in this area and recommends that these words be removed from the draft clause.

For those reasons, I urge Members on both sides of the Committee to support the measure we are promoting. In response to the published Bill, the Committee called for the specified words to be removed from the clause, but there has been no change: clause 2 is identical to the draft clause 2 we saw those many months ago.

Given everything we hear about reflecting, improvements, co-operation and the UK Government listening to the Scottish Government, the SNP and other parties, I would love to hear from the Secretary of State, whose ear I am hoping to catch, at what stage the Government intend to accept and implement these improvements. As drafted, the clause does not implement the Smith recommendation. As I have said, that critique was agreed by all parties in the Scottish Parliament, and I hope the UK Government will take that on board.

The clause puts the Sewel convention into statute, rather than putting it on a statutory footing, as required by paragraph 22 of the Smith report. In our view, the intention of the Smith recommendations was that key aspects of DGN 10 would be codified in statute. As it stands, the clause sets out the basic principle, but provides no statutory process for consultation and consent where Westminster plans to legislate for Scotland in devolved areas. As things stand, the Bill has not been drafted to take account of the shortcomings; does not put the Sewel convention on a meaningful statutory basis; does not adequately implement the Smith commission recommendations; and does not apply to changes to the legislative competence of the Scottish Parliament or Executive competence of Scottish Ministers. That is why we will be pressing for these changes.

[Mr Alistair Carmichael]

Amendments 19 and 20 have their genesis in the efforts of the Law Society of Scotland and seek to achieve much the same ends as those already outlined by the hon. Members for Caerphilly (Wayne David) and for Moray (Angus Robertson). On a very literal basis, clause 2 does implement the Sewel convention, which is why the word “normally” is in there. When Lord Sewel, during consideration of the Scotland Act 1998 in the other place, gave his undertaking, the word “normally” was used. However, as has become apparent from the comments of the hon. Member for Moray and others, the operation of the convention over the years has been very different—we now have DGN 10—and on reflection, with the benefit of pre-legislative scrutiny, it should be revisited in the terms before the House. I do not necessarily expect the Secretary of State to accept the amendments, but I hope he will acknowledge that this is a legitimate point that it would cost the Government nothing to adopt. It would be an indication that they are listening and of their good will.

New clause 5 is in the name of the hon. Member for Nottingham North (Mr Allen). I enjoyed the trailer for his Second Reading speech to the Human Rights Act abolition Bill—if we are ever to see it; it is notable, of course, that it was not in the Queen’s Speech. I hope that, having looked into the abyss and seen the myriad complications that would come from their proposal, the Government might find extensive and mature consideration necessary and that we might, in fact, never see that Second Reading.

--- Later in debate ---

[Mr Graham Allen]

Incidentally, the draft of a written constitution done by the Political and Constitutional Reform Committee included the Bill of Rights.

The abolition of the Human Rights Act—or changes to it—was in the manifesto of the governing party, so it might feel that it ought to do it. Will the right hon. Gentleman reinforce the point, however, that, as we are proving this evening, good pre-legislative scrutiny on something so technical and detailed would prove an immense bonus to the Government in getting their proposals through?

[Mr Carmichael]

Indeed, that is the case. For all sorts of reasons, pre-legislative scrutiny is not always possible, but it ought to be the default in any sensible legislature.

The Secretary of State may intervene if I am wrong, but I understand that the Government have said they will not change the integration of the Human Rights Act in the 1998 Act and that it will continue to underpin the Scottish Parliament. Inevitably, then, any such change would not apply to Scotland. It is conceivable, however, that we might be left with a messy situation in Scotland where the Human Rights Act applied to some matters and not to others. I was practising in the Scottish courts as a solicitor when the Scotland Act came into force but before the Human Rights Act came into force across the whole of the UK. It meant we had to use a device known as a “devolution note” if we wanted to raise human rights matters in court. It was messy. It was necessary to get us through the year, but I do not want to go back to those days. Having a single regime of human rights protections that applies across the whole of the UK is absolutely necessary, and we tamper with it at our peril.

[Mr Allen]

On a point of order, Mr Crausby. It might help you to know that I will be requesting a vote on new clause 5 relating to the protection of the Human Rights Act in the Scottish context in due course after 10 o’clock.

[David Mundell]

I am happy to respond to the points made and to restate, as I did on the previous group, that I will be meeting the Scottish Parliament’s Devolution (Further Powers) Committee next week, which will be an opportunity to explore some of the issues it raised in its report.

The Government’s starting point is that the Smith commission’s intention was not that the current constitutional position should be changed. Instead, the commission’s intention was that legislation should accurately reflect the political understanding of the convention, and that is exactly what I see the clause as doing.

Currently, the Government do not normally legislate in devolved areas without the consent of the Scottish Parliament. Clause 2 sets out that practice. In doing so, it puts on a statutory footing a convention that has been consistently adhered to by successive United Kingdom Governments. I understand the desire to put beyond doubt that we will seek the consent of the Scottish Parliament when legislating on devolved matters. However, in effect, amendment 56 seeks to limit the sovereignty of this Parliament by removing the word “normally” to state that the Parliament of the United Kingdom cannot legislate with regard to devolved matters without the consent of the Scottish Parliament.

In reality, the amendment would directly contradict section 28(7) of the Scotland Act 1998, which states that the section, which relates to Acts of the Scottish Parliament,

“does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”

The amendment would radically alter the way in which the practice was intended to operate as envisaged by Lord Sewel.

[Mr Alistair Carmichael]

The Secretary of State is making a compelling case for codification. On a number of occasions and in different ways, the House has limited its sovereignty, particularly in relation to the European Communities Act 1972. As I recall, there is judicial authority on that from the Factortame case. Surely he accepts that the mere act of putting a convention on a statutory footing is a change. For that reason, the adherence to the word “normally” is not appropriate.

[David Mundell]

It is not a change to how things are normally done, but a change to how they are set out on the face of legislation. As part of the Smith process, it was clear that people wanted the convention set out in the Bill, but I do not accept that they want a change to the convention as envisaged by Lord Sewel.

--- Later in debate ---

[Joanna Cherry]

I rise to speak in favour of amendments 62 and 67. Amendment 67 would introduce to clause 11 a subsection that would remove the Human Rights Act from the list of protected provisions in schedule 4 to the Scotland Act 1998.

In the debate on the Gracious Speech, the Home Secretary confirmed that a Bill will be brought forward during this Parliament to introduce a Bill of Rights and to repeal the Human Rights Act. The Scottish National party has consistently opposed repeal of the Human Rights Act. We won the election in Scotland and therefore there is no mandate from the Scottish people for repeal of the Act. None the less, the Secretary of State for Scotland has confirmed, albeit on Radio Scotland, that repeal of the Human Rights Act will apply equally in Scotland as in England. At present, the Human Rights Act is listed as a protected provision in schedule 4 to the Scotland Act, which means that the Scottish Parliament cannot modify the Human Rights Act. Amendment 67 would change that.

The UK Government have not been clear on how potential changes to the United Kingdom’s relationship with the European convention on human rights and the abolition of the Human Rights Act could impact on the place of the ECHR in Scotland’s constitutional settlement. That is important because the ECHR is entrenched in the Scotland Act. For example, section 29(2)(d) provides that a provision that is incompatible with the ECHR is outwith the legislative competence of the Scottish Parliament, and section 57(2) provides that a member of the Scottish Government has no power to make any subordinate legislation or to do any act in so far as that would be incompatible with the ECHR.

Neither of those sections would be changed by simple repeal of the Human Rights Act alone. It is clear, therefore, that human rights are not specifically a reserved matter; they are partially devolved. Scottish National party Members therefore argue that any repeal of the Human Rights Act without first consulting the Scottish Parliament would violate the Sewel convention, whereby the Westminster Government will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.

Matters are further complicated by the fact that the Smith commission and the draft clauses proposed putting the Sewel convention on a legislative footing. There is therefore the prospect of a very real clash between the United Kingdom Government commitment to revise and reduce the role of the ECHR in United Kingdom law and their commitment to the Scottish electorate to implement the vow. There is a real possibility of a clash between the Scottish and Westminster Parliaments.

It is worth pausing to look at the realities of human rights in the United Kingdom and why they matter. As I said in my maiden speech, the United Kingdom in fact loses very few of the cases brought against it in Strasbourg. The United Kingdom once had a proud tradition of leading in Europe on human rights. It was elected to membership of the United Nations Human Rights Council in 2014 on a prospectus claiming that it was

“a passionate, committed and effective defender of human rights”.

Repealing the Human Rights Act would not really live up to that claim and would send out all the wrong signals. The right hon. and learned Member for Beaconsfield (Mr Grieve) said in 2014 that the proposal to repeal the Human Rights Act represented a

“failure of ambition…on the global promotion of human rights”.

Human rights matter to ordinary people in this country. Those who have benefited from the Human Rights Act include victims of domestic violence, who have been able to get better protection, and victims of rape, who have used the Act to ensure that the police properly investigate offences. Lesbian, gay, bisexual, transgender and intersex people have used human rights to overcome discrimination in this country. The families of military personnel killed on active service because the Ministry of Defence supplied them with outdated equipment have also benefited under the Human Rights Act. These rights are very real for ordinary United Kingdom citizens.

In Scotland, we have a national action plan for human rights, which has been co-produced in partnership with wider civil society. We have a United Nations- accredited Scottish Human Rights Commission, which is internationally acknowledged as one of the world’s best. As I said in my maiden speech, our commitment to human rights in Scotland extends not just to the ECHR, but beyond that to social and economic rights. Through our work on social justice and challenges such as that on fair work, we are intent on ensuring that people in Scotland can enjoy their economic, social and cultural human rights. Scotland is also a world leader in its work to give full effect to the rights of children. We are very proud of that record in Scotland and we wish to protect it—hence amendment 67.

As I have said, the amendment would have the effect of removing the Human Rights Act from the list of enactments that cannot be modified by the Scottish Parliament. If the Scottish Parliament was able to modify the Human Rights Act, that would allow the Scottish Government and the Scottish Parliament to establish a human rights regime in Scotland regardless of whether the Act was repealed by the UK Parliament.

I hasten to add that, as our First Minister has said, the SNP is committed to opposing the repeal of the Human Rights Act for the whole of the UK, not just for Scotland. However, in the unfortunate event that it is repealed for the whole of the UK, amendment 67 would enable us to do something about it, at least in Scotland. That position has the overwhelming support of the Scottish electorate, as evidenced by the 56 out of 59 MPs sitting beside and behind me.

[Mr Alistair Carmichael]

I will not detain the Committee because time is pressing.

I tabled amendments 21 and 22, which were authored by the Law Society of Scotland. The two issues that they deal with are fairly short in their compass and I do not intend to press them to a Division. However, I will be interested to hear the Minister’s response to them and to have it on the record.

Amendment 21 would include the parliamentary term of the Scottish Parliament within the provisions that can be altered only by way of a super-majority. Under amendment 22, the same would be true of boundaries. It is the wish of the Law Society of Scotland that it should not be possible to influence those matters by a simple majority merely for political advantage.

--- Later in debate ---

[The Deputy Leader of the House of Commons (Dr Thérèse Coffey)]

I thank the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the right hon. Member for Orkney and Shetland (Mr Carmichael) for their contributions. A number of significant points have been raised and, in responding to them, I will set out the Government’s approach.

I will start by speaking to a number of minor and technical Government amendments. Government amendments 108 to 110 will give Scottish Ministers the power to modify additional sections of the Scotland Act 1998 within their devolved competence and will clarify the extent to which those and other sections can be modified.

Amendment 108 will allow the Scottish Parliament to modify subsections (1) and (3) to (5) of section 112 of the 1998 Act to the extent that they apply to any power exercisable within devolved competence to make subordinate legislation. Amendment 109 will ensure that the Scottish Parliament can modify subsections (1) and (3) to (5) of section 112, section 113, section 115 and schedule 7 to the 1998 Act so far as those provisions apply to making subordinate legislation, including Orders in Council made by Her Majesty in areas of devolved competence. Amendment 110 will give the Scottish Parliament the power to modify section 124 of the 1998 Act, in so far as it applies to making subordinate legislation in areas of devolved competence. Those amendments will ensure that the Scottish Parliament can modify how the relevant sections apply to subordinate legislation made by Scottish Ministers and to Orders in Council made by Her Majesty that fall within devolved competence.

Amendments 62 to 66 and amendments 21 and 22 seek to amend clause 10, which fulfils the Smith commission agreement to require certain types of electoral legislation to be passed by a two-thirds majority of the Scottish Parliament. I thank the hon. and learned Lady and the right hon. Gentleman for those amendments. The Government believe that our approach to clause 10 delivers on paragraph 27 of the Smith commission agreement, which identified that there are certain types of electoral legislation on which a broad consensus is important. The commission agreed that such a procedure should apply to legislation that changes the franchise, the electoral system or the number of constituencies and regional Members of the Scottish Parliament.

Although the Government will reflect on the points that were made, we do not support those amendments, because we believe that at least two thirds of the Members of the Scottish Parliament should vote in favour of legislation that comes under clause 10 at the final stage. We recognise that that means there will have to be a vote, rather than a Bill passed by consensus, but we believe that the clause implements the intention behind the Smith commission agreement. As the Smith commission recognised, the super-majority requirement is an important safeguard of legislative powers. It is for this reason that I urge hon. Members not to press the amendments.

Amendments 21 and 22, in the name of the right hon. Gentleman, go beyond the Smith commission agreement, which did not propose that legislation relating to the term length of the Scottish Parliament, or the date of any Scottish Parliament ordinary general election, should be subject to that two thirds majority; neither did the agreement state that the Bills concerning the alteration of boundaries of constituencies, regions or any other equivalent electoral area for the Scottish Parliament should be covered by this requirement. For that reason, I ask the right hon. Gentleman not to press his amendments.

[Mr Alistair Carmichael]

In principle, why would the parliamentary term length be different from the other functions the Minister listed?

[Dr Coffey]

To be clear, that is what was agreed in the Smith commission. The right hon. Gentleman’s party agreed to it and we are not planning to go beyond the Smith commission on this particular arrangement.

Scotland Bill

Alistair Carmichael Excerpts

Monday 8th June 2015 Commons Chamber

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

It is a pleasure to follow three exceptionally fine maiden speeches. As convention demands, I should like to say a few words about them before the hon. Member for South Leicestershire (Alberto Costa) leaves his place. As one former Scottish solicitor to another, I welcome him to the House. Maiden speeches always teach us something new that we did not know about a certain part of the world before. I confess that I always thought the world’s longest runway was at Machrihanish, but I say that only because the hon. Gentleman went on to give an impressive list of community names—villages and towns within his constituency. I am sure that the sound we might have heard in the background was the silent sobbing of Hansard writers trying to get the full list from him. He will soon learn, I have no doubt, that such lists bring a swift note from the Hansard writers.

The hon. Member for Rutherglen and Hamilton West (Margaret Ferrier) has obviously already learned one important thing about the House of Commons—that if one wants to get on here, one has to keep in with the Doorkeepers. She, too, delivered her first speech with passion and humour. Knowing the part of the world she represents, as I do, I have no doubt that she will need both these qualities as she represents her constituents in the years ahead.

Finally, we heard from the hon. Member for Eddisbury (Antoinette Sandbach), who spoke first of all for her farming constituents. As a farmer’s son representing a farming constituency myself, I am pretty sure that we will all recognise elements of common concerns shared by her part of the world and mine. I was particularly impressed by the way in which she brought in her own wider life experience. She gave a thoughtful maiden speech, and she will always be listened to in this House.

Let me add my welcome for this Bill on Second Reading tonight. It is not yet fully nine months since the Smith commission was established. In that time, there have been a series of deadlines which, as the Secretary of State indicated, have all been met or exceeded and today’s is just one of the long line. It is worth remembering that we had a report—the heads of agreement—from Lord Smith and his commissioners by the end of November. There was then the publication of draft clauses and the Command Paper by the end of January. Then there was a commitment in all three manifestos to bring forward legislation in the first Queen’s Speech and an early introduction of the Bill. I commend the Government for having brought it forward today, and I wish it a swift passage.

This Bill has already been the subject of some substantial and detailed scrutiny. Other hon. Members have spoken about the report of the Scottish Parliament special committee on the extra powers to the Scottish Parliament, and professional bodies such as the Law Society of Scotland have also given the Bill careful consideration. The nine-month gestation process in the context of these discussions has been undertaken at breakneck speed. If we consider how long it took us to get through the constitutional convention in the 1990s, or the time taken in the Calman commission and then in bringing forward the Scotland Bill which became the Scotland Act 2012, we can understand that to have got to this point within nine months is a considerable achievement. I pay tribute to the right hon. Gentleman the Secretary of State and his officials in the Scotland Office for the work they have done.

As a general principle, I would rather have things right than quick, but we have to appreciate that this is one of those occasions when we are going to have to have both. To do that requires of us all a particular effort and for us all to proceed in good faith and with goodwill on all sides. I hope the debate we have in the coming weeks will allow the widest possible range of opinions that reflect the issues discussed in the referendum and general election campaigns in Scotland. As the hon. Member for Edinburgh South (Ian Murray) said from the Opposition Dispatch Box, the SNP’s very significant achievement in returning 56 of the 59 MPs must be recognised and I hope they will bring forward amendments that reflect full fiscal autonomy or responsibility—whatever term they choose to employ—and they will tell us the detail of what they mean by the medium term.

The hon. Member for Edinburgh East (Tommy Sheppard) said in an intervention that in the course of the election campaign his party’s policy had been the subject of grotesque caricature. If that is the case, as an elected representative he now has the opportunity in this place to put that right, and I hope he and his colleagues will introduce amendments so we can have a proper debate. My objection to full fiscal autonomy remains that, in my view, it constitutes effectively independence by the back door, and therefore it does not respect the decision we reached as a nation last September.

The words of caution I give tonight are not directed only at the SNP. They extend to those in the Labour and Conservative parties who would seek to use this debate as some sort of bidding war between those on different sides of the border. I am short of time tonight but this is my word of caution: remember always that within this great family of nations that is the United Kingdom it is possible to break the Union from either side of the border. We have always proceeded on the basis that we are a family where we give in and take out in different ways at different times. I hope the Bill we have tonight will be the next stage in the evolution of that family, and I look forward to taking part in its consideration in the weeks to come.