Scotland Bill

Emily Thornberry Excerpts

Monday 8th June 2015 Commons Chamber

[Angus Robertson]

The hon. Gentleman shakes his head, but it is a statement of fact. The Scottish National party won almost every single seat in Scotland, and it did so on the basis of the argument conducted during the general election. I advise Conservative Members, who apparently are in favour of the maintenance of the Union, that they should respect the views of the electorate that returned SNP Members in such great numbers.

[Emily Thornberry (Islington South and Finsbury) (Lab)]

Will the hon. Gentleman give way?

[Angus Robertson]

I would like to make some progress, and then I will give way to the hon. Lady.

I will return in much more detail to the watering down of the Smith agreement in the Bill, because righting that wrong will be a central priority for the SNP. As we know, the vow was a direct response to the growing momentum of the yes campaign, in which the Better Together parties—Labour and Tory, which had worked closely for two years—descended into breathless panic and promised the earth. More accurately, they promised “home rule” and as close to federalism as possible. At least they had the nous not to carve those particular promises on an eight-foot block of stone. There is no doubt whatever that the Bill does not match the pledges of the campaign or the spirit and letter of the Smith deal. On that issue, I give way to the hon. Member for Islington South and Finsbury (Emily Thornberry).

[Emily Thornberry]

As I understand it, the Scottish National party’s position is for full fiscal autonomy. There is a difference between autonomy and responsibility, as I am sure the hon. Gentleman would agree. Autonomy means a great deal. The amendment that was not selected states

“as Scotland moves to a position in the medium term where the Scottish Parliament and Government are responsible for all revenue raising”.

Does he agree that that is not full fiscal autonomy?

[Angus Robertson]

That is interesting. A moment ago, Labour Members intervened to say that there was no mention of our support for fiscal autonomy; now we are told that we did mention it, but the hon. Lady is not happy with the wording. I opened my contribution by saying that I look forward to the SNP amendment on full fiscal autonomy; I expect to see Labour Members trooping through the Lobby and voting with the Tories yet again on governance in Scotland. I suggest that if they want to retain their only seat there, they should think twice about pursuing that course of action.

--- Later in debate ---

[Emily Thornberry (Islington South and Finsbury) (Lab)]

There seems to be cross-party support in this place for legislation that would substantially implement the recommendations of the Smith commission. We have heard some interesting contributions, not least from the hon. Member for Moray (Angus Robertson). We all wait with bated breath to see what amendments will be tabled to the Bill to try to establish full fiscal autonomy for Scotland. We certainly hope that in order to fulfil that promise, the amendment will be a little stronger than the one on the Order Paper today, which is all about Scotland moving to

“a position in the medium term where the Scottish Parliament and Government are responsible for all revenue raising”.

That seems to me to be a lot of weasel words and very far away from full fiscal autonomy.

There has been a certain amount of interest in this pledge from people watching the debate in this place, and I have been asked by many where the Scots believe they will get the money needed to fill the hole—we understand it might be £7.6 billion or even £10 billion. However much it is, people in Scotland and presumably across the whole of the United Kingdom will want to know from the Scottish nationalists where that money is going to come from, if they get full fiscal autonomy. The prime opportunity comes from introducing an amendment to this Bill, and we all wait to see what it is going to say.

[John Redwood (Wokingham) (Con)]

When the hon. Lady’s party introduced devolution at the end of the last century, it said that it would settle the kingdom once and for all, and that Scotland would then live very happily in the Union. What went wrong?

[Emily Thornberry]

The right hon. Gentleman will, I am sure, realise that we have all moved on in the last 100 years and that things change and we have become different people, but I think the majority of people in these islands identify as British. We saw that in the referendum result and the feelings expressed across the whole of this nation, and the important thing is that we remain a United Kingdom. With the devolution being introduced today, which will be a continuing devolution, we must nevertheless remain a United Kingdom. I believe I speak on behalf of the vast majority of people in Great Britain when I say that.

What concerns me about the Bill, however, is how the Sewel convention will be implemented. The Smith commission recommends that the Sewel convention be placed on a statutory footing. However, despite the Secretary of State’s contention that the Bill will implement the commission’s recommendations in full, in my view clause 2 falls short of fulfilling that promise.

In the 1998 debate on the Scotland Bill of that year, Lord Sewel said:

“However, as happened in Northern Ireland earlier in the century, 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.]

In seeking to put this convention on a statutory footing, the Bill uses identical language, stating that

“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.”

What does that mean? Does that mean we will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament unless the UK Parliament does not like it? It seems rather an odd way of proceeding and it is a funny way to write the law.

In its report on the Government’s draft proposals, the House of Lords Constitution Committee described this in much more measured terms than I would. [Interruption.] It says

“the use of the word normally…is unusual in legislation and is undefined.”

[Interruption.] The Secretary of State, who is the only Scottish MP on the Government Benches, should listen: the House of Lords Constitution Committee says his legislation is nonsense, and he should listen.

The inevitable question is what the Government mean by “normally”. Language that may be appropriately applied to a convention may well be inappropriate in statute. For instance, we might pass legislation that says, “Normally, it is illegal to steal someone’s wallet”—except when it is legal—or, “Normally, millionaires should pay their fair share of tax”, although perhaps that is a bad example. How about this example, then? Legislation might say, “Normally, it would be illegal to blow up the Houses of Parliament,” but there might be circumstances in which it was legal. This is the legislation being put before us by the Government today.

[Simon Hoare]

What is the normal response when the hon. Lady sees a white van?

[Emily Thornberry]

The normal response to silly questions like that is to pass on and not make comment, because the hon. Gentleman belittles himself and this place by descending to that.

[Martin John Docherty]

Does the hon. Lady believe the Secretary of State for Scotland should give more credence to the unelected upper Chamber than a cross-party report by the democratically elected Scottish Parliament?

[Emily Thornberry]

I simply think the Secretary of State for Scotland should not introduce legislation that says that we

“will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”,

because in my view that is not the sort of thing we normally put in legislation. The Bill has been rushed through at the last minute and has not been thought through properly. I strongly suggest that the Secretary of State pays attention to people who are better experts than he is, and makes sure his legislation is a little better than it is.

The Constitution Committee’s report went on to note that this measure, as drafted, would have

“little, or no, legal effect”.

[Interruption.] I am sorry to interrupt the Secretary of State once more. The Committee says this clause would have little or no legal effect, and I suggest he pays attention to that. It says that the clause would simply

“recognise the existence of the Sewel convention rather than turn it into a legally binding principle”.

In other words, it is a gesture and it does not actually mean anything. I strongly suggest the Secretary of State considers providing some clarity on that point. What do the words of the statute mean? What does he intend? Tell us what “normal” means, and what “abnormal” means, so we all know what we are talking about.

That point is as nothing compared with the nonsense and mess that the Bill will cause in relation to the Human Rights Act. The Government may or may not be changing the Human Rights Act in some way in the future after consulting people—who, we do not yet know. We do not know how it will be changed, but it appears that the Government do intend to change it. As the Secretary of State knows, an integral part of the devolution settlement is that Scotland has a role in the Human Rights Act, and that remains important. If the Government are to honour the spirit of the Sewel convention, they will need to seek the consent of the Scottish Parliament before proceeding on any wholesale reorganisation of the legislative framework upon which our basic human rights rest. The Government need to look at that.

The convention will be pushed to its limit whether it has a basis in statute or not. The Human Rights Act is embedded in Scotland’s devolution settlement, and while it remains for the UK courts to determine whether an Act of Parliament violates an individual’s convention rights, both schedule 6 and section 29(2)(d) of the Scotland Act 1998 gave the same power to the Scottish courts to invalidate Acts of the Scottish Parliament if they are judged to be incompatible with the UK’s obligations under the convention. The same prohibition on acting incompatibly with individuals’ convention rights is extended to Ministers in the Scottish Executive under section 57(2) of the 1998 Act. Since the passage of that Act, the Scottish Parliament has established a Scottish Human Rights Commission and a national plan for human rights, so human rights are without doubt a substantially devolved issue. What is more, the Scots were not exactly backwards in coming forwards on the need to preserve the Human Rights Act.

The Minister might remember that the Government spent the previous two years consulting on how to replace the Human Rights Act with their so-called British bill of privileges; they went around the country asking people their views, for suggestions, whether any rights had been forgotten and whether people would like to change this bit or that bit. The Minister might also remember the consultation’s reception in Scotland. When the Government asked Scottish people their views, how many were in favour of changing the Human Rights Act? None. The Government did not get a single person in Scotland to say that it was a good idea to change the Human Rights Act, so exactly how will they be able to implement the Sewel convention and somehow or other change the Human Rights Act in Scotland? How will that work? It is constitutional nonsense, and the Government should take it extremely seriously.

Following the election, the Scottish Human Rights Commission said:

“While we will examine any legislative proposals in detail, the Commission repeats its long-standing concerns about the regressive nature of many elements of previous proposals for a British Bill of Rights. These have included enabling the UK to pick and choose which judgments to accept from the European Court of Human Rights, reducing the scope of human rights laws so that they only apply to ‘the most serious’ cases, or to particular areas of law, and restricting the eligibility of rights on the basis of nationality or citizenship. Any and all of these changes would fly in the face of progressive protection for human rights and would have adverse consequences for people in Scotland”.

That is absolutely right. It is quite clear that the people of Scotland do not want the Government to interfere with their Human Rights Act, and the Government should leave it alone. Frankly, they should leave it alone for all of us.

The Government should not seek to change the Human Rights Act without first seeking the consent of the Scottish Parliament. It is clear that if the Lord Chancellor and Secretary of State for Justice, the right hon. Member for Surrey Heath (Michael Gove), went up to Scotland and asked people there whether the Government could change the Human Rights Act, they would probably tell him to sling his hook—or possibly something a little ruder.

Will the Minister assure the House that the Government’s intention is to honour the Sewel convention on a matter of such importance as fundamental human rights?

[Antoinette Sandbach]

Does the hon. Lady accept that being a signatory to the European convention on human rights is different from the Human Rights Act? We are at liberty, in Parliament, to change the Human Rights Act while still remaining a signatory to the treaty.

[Emily Thornberry]

I have only two minutes and 46 seconds left, but I am happy to talk to the hon. Lady outside the Chamber. I would say that the Government should keep away from this—it is a devolved issue. They may think that they can implement the Sewel convention properly and still change the Human Rights Act in relation to Scotland, but it cannot be done.

Will the Minister give us a clearer outline of the Government’s definition of “normal”? Will he help us by telling us whether or not, in order to stay true to the spirit of the Smith commission’s recommendations, the Sewel convention can be placed on a much stronger statutory footing than today’s Bill achieves? As it stands, nothing in the Bill prevents this or any future Government from riding roughshod over the clearly expressed views of the Scottish Parliament and the people it represents. The first victim of such woolly legislation could well be the Human Rights Act in Scotland. Just as we will fight in England, we will fight in Scotland to make sure that we keep our Human Rights Act intact.