Scotland Bill

David Crausby Excerpts

Monday 15th June 2015 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the hon. Gentleman agree that all this talk of black holes with full fiscal autonomy fails to recognise that a black hole exists already as a result of the policies of successive Westminster Governments, both Tory and Labour, and for which the Tories are now making the poorest and most vulnerable in our society pay? [Hon. Members: “Speech.”] The case that Labour is making in attacking full fiscal autonomy is that things are so bad that letting the Tories fix the deficit their way is better—[Interruption.] I am going to keep going—[Interruption.]

[The Temporary Chair (Mr David Crausby)]

Order. Interventions should be short, and the Committee should be tolerant of that.

[Joanna Cherry]

Does the hon. Gentleman agree that his party should have more ambition for Scotland?

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[Wayne David]

I beg to move amendment 39, page 2, line 2, leave out “But it is recognised” and insert “Notwithstanding subsection (7) above”.

[The Temporary Chair (Mr David Crausby)]

With this it will be convenient to discuss the following:

Amendment 56, page 2, line 2, leave out “not normally” and insert “never”.

The Amendment would require the Sewel Convention, requiring the legislative consent of the Scottish Parliament, to be observed in all legislation of the Parliament of the United Kingdom.

Amendment 4, page 2, line 3, leave out “normally”.

Amendment 19, page 2, line 3, after “legislate”, insert “(a)”.

Amendment 20, page 2, line 3, after “matters”, insert

“and (b) to alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Government”.

Amendment 41, page 2, line 4, at end add—

“(9) A Minister of the Crown in charge of a Bill in either House of Parliament must, before second reading of the bill—

(a) make a statement to the effect that in his view the provisions of the bill do not constitute legislation with regard to devolved matters; or

(b) make a statement that the consent of the Scottish Parliament to the Bill is being sought, or will be sought, and specifying the matters in respect of which consent is being sought; and that the Bill will not be presented for Royal Assent without such consent. Such a statement must be in writing and be published in such manner as the Minister making it considers appropriate”.

Amendment 45, page 2, line 4, at end add—

“(9) A Minister of the Crown in charge of a Bill in either House of Parliament which makes provision with regard to devolved matters must, before Second Reading of the Bill—

(a) make a statement to the effect that the Bill has the consent of the Scottish Parliament (“a statement of consent”); or

(b) make a statement to the effect that although he is unable to make a statement of consent the Government nevertheless wishes the House to proceed with the Bill.

(10) A statement—

(c) under subsection (9) must be in writing and be published in such manner as the Minister making it considers appropriate; and

(d) under subsection (9)(b) must also state the Government’s reasons for wishing the House to proceed with the Bill.

(12) In this section, “devolved matters” include—

(e) the legislative competence of the Parliament; and

(f) whether, and the extent to which, functions are exercisable by the Scottish Ministers.”

In paragraph 70 of its Ninth Report of Session 2014-15 (HC 1022), the House of Commons Political and Constitutional Reform Committee suggested that one approach to giving the Sewel Convention the force of statute would be the addition of a requirement for the Government to set out its reasons for legislating on a matter covered by the Sewel Convention without the consent of the Scottish Parliament where it seeks to do so.

Clause stand part.

New clause 5—Application of the Human Rights Act 1998 to Scotland—

The application of the Human Rights Act 1998 to Scotland shall not be repealed in so far as it affects Scotland without the express consent of the Scottish Parliament.”

The New Clause states the intention that the express consent of the Scottish Parliament would be required before any repeal by the Parliament of the United Kingdom of the Human Rights Act 1998 as it applies to Scotland.

New clause 10—Consent of the Scottish Parliament to certain Westminster Acts—

(1) In section 28 of the Scotland Act 1998 (Acts of the Scottish Parliament), at the end add—

“(8) But the Parliament of the United Kingdom must not pass Acts applying to Scotland that make provision about a devolved matter without the consent of the Scottish Parliament.

(9) A provision is about a devolved matter if the provision—

(a) applies to Scotland and does not relate to reserved matters,

(b) modifies the legislative competence of the Scottish Parliament, or

(c) modifies the functions of any member of the Scottish Government.

(10) In subsection (8), “Acts” includes any Act, whether a public general Act, a local and personal Act or a private Act.

(2) After section 28 of the Scotland Act 1998 insert—

“28A Duty to consult the Scottish Government on Bills applying to Scotland

(1) A Minister of the Crown shall consult Scottish Ministers before introducing any Bill into the Parliament of the United Kingdom for an Act of that Parliament that would make provision applying to Scotland.

(2) Where the Bill is for an Act making provision that would require the consent of the Scottish Parliament by virtue of section 28(8), the requirement to consult under subsection (1) includes a requirement that a Minister of the Crown give the Scottish Ministers a copy of the provisions of the Bill that apply to Scotland no later than—

(a) 21 days before the proposed date of introduction, or

(b) such later date as the Scottish Ministers may agree.

(3) The requirement in subsection (2) does not apply if—

(c) the Scottish Ministers so agree, or

(d) there are exceptional circumstances justifying failure to comply with the requirement.

(4) The reference in subsection (1) to an Act of Parliament is a reference to any Act whether a public general Act, a local and personal Act or a private Act.”

This new clause would ensure that the UK Parliament can only legislate in devolved areas with the consent of the Scottish Parliament. It puts the Sewel Convention onto a statutory footing, as agreed by the Smith Commission.

[Wayne David]

I rise to speak to amendments 39, 4 and 41 on the Sewel convention. As Members will know, the convention is quite well established. In the debate on the Scotland Bill in 1998, Lord Sewel, the Parliamentary Under-Secretary of State at the Scottish Office, said that

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.”—[Official Report, House of Lords, 21 July 1998; Vol. 592, c. 791.]

That was accepted, and the Sewel convention became a reality.

As the Law Society of Scotland has said, it is true that since the enactment of that Bill there is agreement that the convention has been successful, and it has been adhered to by successive Parliaments. The Smith commission gave a firm commitment:

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

That was a clear and unambiguous statement. On the face of it, the Government’s draft legislation honoured the commitment that had been given, but I suggest that there are weaknesses in what the Government have proposed in this Bill.

I want to refer to the excellent work done by the Political and Constitutional Reform Committee. It has been pointed out that the Sewel convention has been distilled in the Government’s interpretation of it. Clause 2 refers only to the convention’s applicability in respect of devolved matters, and the convention also applies to legislation affecting the competences of the devolved institutions. We are concerned that, in some ways, what has happened in practice is not quite recognised in the Bill.

We are also concerned about the way in which the convention is to be placed on a statutory footing. Students of British constitutional history will recognise that, according to Dicey’s principle, this British Parliament has ultimate sovereignty. Such a statutory footing recognises that constitutional reality, but does not challenge it or take it forward in any way whatever. That is somewhat unfortunate and certainly worthy of debate. The statutory footing, in reality, does not count for anything because what we have is essentially a summation of the Sewel convention that is little more than a political statement. Indeed, the Political and Constitutional Reform Committee quoted academics as saying that the clause was “legally vacuous” and

“like a bowl of jelly”.

We should be concerned about that.

It is noteworthy that the House of Lords Constitution Committee, which is highly regarded by many people, said, in its rather more sedate way, that

“it can be said that the new provision will recognise the existence of the Sewel convention rather than turn it into a legally binding principle.”

That is an extremely important phrase. Although those of us who are committed firmly to the Sewel principle recognise that there is no challenge to the convention, who knows what will happen in the future? That is why it should be legally binding, not just on this Government, but on all future Governments of any political complexion. Those issues need to be aired fully in considering the Sewel convention, because they are important and fundamental to the Bill.

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[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.

[The Temporary Chair (Mr David Crausby)]

The hon. Gentleman’s point of order is noted.

[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.

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[Angus Robertson]

I beg to move amendment 60, page 2, line 7, leave out “Section B3 of”

[The Temporary Chair (Mr David Crausby)]

With this it will be convenient to discuss the following:

Amendment 61, page 2, line 9, leave out from “Under the heading” to end of line 29 on page 3 and insert—

‘(2) In Part 2 of Schedule 5 to the Scotland Act 1998, for Section B3 (elections) substitute—

“B3 Elections

Elections for membership of the House of Commons and the European Parliament, including the subject matter of —

(a) the European Parliamentary Elections Act 2002,

(b) the Representation of the People Act 1983 and the Representation of the People Act 1985, and

(c) the Parliamentary Constituencies Act 1986,

so far as those enactments apply, or may apply, in respect of such membership.

Paragraph 5(1) of Part 3 of this Schedule does not apply to the subject matter of the European Parliamentary Elections Act 2002; and the reference to the subject matter of that Act is to be construed as a reference to it as at 24 July 2002 (the date that Act received Royal Assent).

(B) Elections for membership of the Parliament and local government elections

The holding of the poll at an ordinary general election for membership of the Parliament on the same day as the poll at—

(d) a parliamentary general election (other than an early such election),

(e) a European parliamentary general election, or

(f) an ordinary local government election in Scotland.

The combination of polls at—

(a) elections for membership of the Parliament, or

(h) local government elections,

with polls at elections or referendums that are outside the legislative competence of the Parliament.

Modifying the digital service for the purposes of applications for registration or for verifying information contained in such applications.

The subject matter of Parts 5 and 6 of the Political Parties, Elections and Referendums Act 2000 in relation to polls at elections that are within the legislative competence of the Parliament where they are combined with polls at elections for membership of the House of Commons and the European Parliament.

“Digital service” has the meaning given by regulation 3(1) of the Representation of the People (Scotland) Regulations 2001 as at the day on which the Scotland Act 2015 received Royal Assent.

Paragraph 5(1) of Part 3 of this Schedule does not apply to the subject matter of Parts 5 and 6 of the Political Parties, Elections and Referendums Act 2000; and the reference to the subject-matter of those Parts of that Act is to be read as at the day on which the Scotland Act 2015 received Royal Assent.””

This amendment provides substitute text for the Section B3 Elections reservation in Schedule 5 to the Scotland Act 1998 which makes the effects clearer. Part (A) reserves elections for membership of the House of Commons and the European Parliament. Part (B) refers to Scottish Parliament elections and local government elections in Scotland.

Amendment 42, page 2, leave out lines 24 to 26.

Government amendments 92 to 98.

Clause 3 stand part.

Amendment 44, in clause 4, page 3, line 42, at end insert

“including provisions about the impact of the ending of the transition to Individual Electoral Registration on the completeness of the register.”

Amendment 46, in clause 4, page 3, line 42, at end insert

“including the automatic registration of eligible electors,”.

The Amendment would give Scottish Ministers power to make provision for automatic registration for Scottish Parliament and Scottish local elections. In its Fourth Report of Session 2014-15 (HC 232), the House of Commons Political and Constitutional Reform Committee reaffirmed its view that voters should ideally be registered to vote automatically.

Amendment 47, in clause 4, page 3, line 42, at end insert—

“(b) about online voting in elections,”

The Amendment would give Scottish Ministers power to make provision for online voting for Scottish Parliament and Scottish local elections. According to the House of Commons Political and Constitutional Reform Committee in its Fourth Report of Session 2014-15 (HC 232), online voting could lead to a substantial increase in the level of participation.

Government amendments 99 and 100.

Clause 4 stand part.

Government amendment 101.

Amendment 43, in clause 5, page 6, line 8, at end insert—

“(c) A referendum called under reserved powers”.

Clause 5 stand part.

Government amendments 102 to 105.

Clauses 6 to 8 stand part.

Government amendments 106 and 107.

Clause 9 stand part.

New clause 11—Electoral registration: requirement to produce report—

‘(1) The Electoral Commission shall prepare and publish guidance setting out, in relation to Scotland, how to further improve the electoral registration process and how to ensure the completeness of the electoral registers.

(2) Guidance under subsection (1) must in particular include—

(a) workable proposals for prompting people to register to vote or update their registration details when using other public services;

(b) whether to allow schools, universities and colleges to block-register students;

(c) whether to pilot election day registration; and

(d) other proposals to ensure that greater numbers of attainers join the electoral register.”

The New Clause would require the Electoral Commission to produce a report into ways of further improving the electoral registration process and of ensuring the completeness of the electoral registers in Scotland.