Scotland Bill

Debate between Wayne David and David Crausby

Monday 15th June 2015 Commons Chamber

[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.