Scotland Bill

Debate between Alistair Carmichael and Angus Robertson

Monday 15th June 2015 Commons Chamber

[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.