Clause 10 — Super-majority requirement for certain legislation

Scotland Bill – in the House of Commons at 9:00 pm on 15 June 2015.

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Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs) 9:00, 15 June 2015

I beg to move amendment 62, page 11, line 19, leave out

“the decision whether to pass or reject it” and insert

“the motion that the Bill be passed is debated”.

Amendments 62 to 66 to Clause 10 aim to clarify matters around references to the Supreme Court, in particular where the Scottish Parliament resolve to reconsider the Bill.

Photo of Lindsay Hoyle Lindsay Hoyle Deputy Speaker and Chairman of Ways and Means, Chair, Panel of Chairs, Chairman of Ways and Means, Chair, Panel of Chairs, Chair, Panel of Chairs, Chair, Panel of Chairs, Chair, Panel of Chairs

With this it will be convenient to discuss the following:

Amendment 21, page 11, line 27, at end add—

“(aa) the period between general elections specified in section 2(2)”.

Amendment 22, page 11, line 30, at end add—

“(ba) the alteration of boundaries of constituencies, regions, or any equivalent electoral area”.

Amendment 63, page 11, line 39, after “unless”, insert

“it is passed without division, or”.

Amendment 64, page 12, line 18, at end insert—

“(2A) He shall not make a reference by virtue of paragraph (a) of subsection (2) if the Parliament resolves that it wishes to reconsider the Bill.

(2B) He shall not make a reference by virtue of paragraph (b) of subsection (2) if—

(a) the Bill was passed without a division, or

(b) the Bill was passed on a division and the number of members voting in favour of it was at least two thirds of the total number of seats for members of the Parliament.”

This amendment establishes that a Bill passed by consensus in the Scottish Parliament (i.e. without a division) automatically meets the super-majority requirement and ensures that a Presiding Officer’s statement is not required if the super-majority requirements are not triggered.

Amendment 65, page 12, line 23, at end insert—

“(3A) Subsection (3B) applies where—

(a) a reference has been made in relation to a Bill under this section, and

(b) the reference has not been decided or otherwise disposed of.

(3B) If the Parliament resolves that it wishes to reconsider the Bill—

(a) the Presiding Officer shall notify the Advocate General, the Lord Advocate and the Attorney General of that fact, and

(b) the person who made the reference in relation to the Bill shall request the withdrawal of the reference.”

Amendment 66, page 12, line 27, leave out subsections (11) and (12) and insert—

“(10A) In subsection (4) after paragraph (a) insert—

“(aa) where section 32A(2)(b) applies—

(i) the Supreme Court decides that the Bill or any provision of the Bill relates to a protected subject matter, or

(ii) a reference has been made in relation to the Bill under section 32A and the Parliament subsequently resolves that it wishes to reconsider the Bill.”

(10B) After that subsection insert—

“(4A) Standing orders shall provide for an opportunity for the reconsideration of a Bill after its rejection if (and only if), where section 32A(2)(a) applies—

(a) the Supreme Court decides that the Bill or any provision of the Bill does not relate to a protected subject matter, or

(b) the Parliament resolves that it wishes to reconsider the Bill.””

Clause 10 stand part.

Amendment 67, in clause 11, page 13, line 4, at end insert—

“(1A) In paragraph 1 of Schedule 4 (protection of Scotland Act 1998 from modification), delete ‘(2)(f) the Human Rights Act 1998’”

This amendment would remove the Human Rights Act 1998 from the list of protected provisions in Schedule 4 of the Scotland Act 1998.

Amendment 68, page 13, line 10, paragraph (a)(ii), leave out “(3)” and insert “(2B)”.

Amendments 68 to 88 to Clause 11 would grant the Scottish Parliament powers to make decisions about all matters relating to the arrangements and operations of the Scottish Parliament and Scottish Government as agreed in the Smith Commission.

Amendment 69, page 13, line 11, paragraph (a)(iii), leave out “11” and insert “12”.

Amendment 70, page 13, line 12, paragraph (a)(iv), leave out from “section” to the end and insert “sections 13 to 27,”.

Amendment 71, page 13, line 13, paragraph (a)(v), leave out from “(v)” to the end and insert “section 28(1) to (6),”.

Amendment 72, page 13, line 14, paragraph (a)(vi), leave out from “(vi)” to the end and insert “sections 29(2)(e)”.

Amendment 73, page 13, line 15, paragraph (a)(vii), leave out “27(1) and (2)” and insert “31”.

Amendment 74, page 13, line 16, paragraph (a)(viii), leave out “28(5)” and insert “32(1) to (3),”.

Amendment 75, page 13, line 17, paragraph (a)(ix), leave out “(1)(a) and (b) and (2) and (3)”.

Amendment 76, page 13, line 18, paragraph (a)(x), leave out “39” and insert “38”.

Amendment 77, page 13, line 21, paragraph (b)(i), leave out “44(1B)(a) and (b), and (2)” and insert “44(1C), (2) and (4),”.

Amendment 78, page 13, line 22, paragraph (b)(ii), leave out “(3) to (7)” and insert “to 50”.

Amendment 79, page 13, line 23, paragraph (b)(iii), leave out “46(1) to (3)” and insert “51(1), (2) and (5) to (8)”.

Amendment 80, page 13, line 24, paragraph (b)(iv), leave out “47(3)(b) to (e)” and insert “52”.

Amendment 81, page 13, line 25, paragraph (b)(v), leave out “48(2) to (4)” and insert “59”.

Amendment 82, page 13, line 26, paragraph (b)(vi), leave out “49(2) and (4)(b) to (e)” and insert “61”.

Amendment 83, page 13, line 27, leave out paragraph (b)(vii).

Amendment 84, page 13, line 28, paragraph (c), leave out “(3)”.

Amendment 85, page 13, line 29, paragraph (d), leave out from “general,” to the end of the paragraph, and insert—

“(i) sections 81 to 85,

(ii) sections 91 to 95, and

(iii) section 97,”.

Amendment 86, page 13, line 31, paragraph (e), leave out from “supplementary,” to the end of the paragraph in line 37, and insert—

“(i) sections 112, 113 and 115, and Schedule 7 (insofar as those sections and that Schedule apply to any power in this Act of the Scottish Ministers to make subordinate legislation),

(ii) sections 118, 120 and 121,

(iii) section 124 (insofar as that section applies to any power in this Act of the Scottish Ministers to make subordinate legislation),

(iv) section 126(1) and (6) to (8), and

(v) section 127,”.

Government amendments 108 to 110.

Amendment 87, page 13, line 39, paragraph (g), leave out “6” and insert “7”.

Amendment 88, page 13, line 41, paragraph (h), leave out

“paragraphs 1 to 6 of”.

Clause stand part.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

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 1998, 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 1998. 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. 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.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat, Orkney and Shetland

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.

The more substantive amendment is amendment 62, which was moved by Joanna Cherry. There was virtually nothing in her speech with which I disagreed on the role of the Human Rights Act 1998 in Scotland and the integral nature of it to the constitutional furniture that created and maintains the Scottish Parliament. It is a matter of significant importance.

I say to the Government that the way to avoid the difficulties that they will create in respect of the Scottish Parliament and the Northern Ireland Assembly by going ahead with the abolition of the Human Rights Act in the rest of the United Kingdom is simply not to do it in the first place. They risk creating a constitutional mess and leaving a situation in which in one United Kingdom there are different standards of human rights, different practices and different bodies of jurisprudence. I see no advantage to the people of Scotland or the people of the rest of the United Kingdom of meddling in that way. I hope that the Government will listen to the wise words of the hon. and learned Lady.

Photo of Therese Coffey Therese Coffey The Deputy Leader of the House of Commons 9:30, 15 June 2015

I thank Joanna Cherry and 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, 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.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat, Orkney and Shetland

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

Photo of Therese Coffey Therese Coffey The Deputy Leader of the House of Commons

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.

Photo of Ian Murray Ian Murray Shadow Secretary of State for Scotland

I did not want the moment to pass without congratulating the hon. Lady on her first time at the Dispatch Box and saying that we are delighted to see her.

Photo of Therese Coffey Therese Coffey The Deputy Leader of the House of Commons

Well, that is very sweet. The hon. Gentleman and I, in our very first summer here together as Members of Parliament, had the joy of going to the United States of America to participate in the British-American parliamentary group. We have been firm friends since. [Hon. Members: “Ooh!”] Exactly—what goes on in Vegas, stays in Vegas.

Clause 10 implements paragraph 27 of the Smith commission agreement, which identified that it is important to have an adequate check on certain types of Scottish Parliament electoral legislation. The Smith commission recommended that UK legislation should provide that such legislation is passed by a two-thirds majority of the Scottish Parliament. The Government agree that this provides an important safeguard. It is possible, of course, that there may be discussions on whether a particular Bill is in fact this type of legislation.

Clause 10 also allows the Advocate General, the Lord Advocate or the Attorney General to refer to the Supreme Court the question of whether a certain piece of legislation requires a two-thirds majority of the Scottish Parliament. The Supreme Court already provides a similar role on whether a particular matter is within the legislative competence of the Scottish Parliament, so I will move that clause 10 stand part of the Bill.

Amendments 67 to 88 concern clause 11, which delivers on the Smith commission recommendation to give the Scottish Parliament greater powers in relation to the arrangements and operation of the Scottish Parliament and the Scottish Government. It does this by enabling the Scottish Parliament to modify relevant sections of the Scotland Act 1998. I am sure that the Secretary of State will wish to reflect on this to ensure that the agreed powers work correctly, but the Government are clear that the substantial new powers devolved under clause 11 are the right ones.

A number of the amendments to clause 11 would allow further modification of the 1998 Act beyond the scope of the transfer of powers envisaged by the Smith commission. The Bill already transfers substantial powers to modify the Act, consistent with the commission, and the Government do not believe it is right to go beyond that.

The hon. and learned Member for Edinburgh South West referred in particular to amendment 67. Indeed, the right hon. Member for Orkney and Shetland said that this matter should be consistent across the UK, reinforcing that this is a reserved for the UK Parliament and not a devolved matter. The hon. and learned Lady said that the UK Government had not been clear on some aspects of this matter. I believe that the Prime Minister has been clear at this Dispatch Box. Amendment 67 would amend the Bill such that paragraph 1 of schedule 4 to the 1998 Act would be modified to remove the Human Rights Act 1998 from the list of legislation the Scottish Parliament cannot modify, otherwise known as the “protected enactments”.

The House will be aware that the Government outlined their proposal to reform and modernise our human rights framework by replacing the Human Rights Act with a Bill of Rights. That was reinforced today by my right hon. Friend the Prime Minister at the celebration of the 800th anniversary of Magna Carta. Of course, we are aware of the possible devolution implications of reform and we can engage with the devolved Administrations as we develop the proposals. As the Secretary of State said, the Sewel convention, as intended by Lord Sewel, has been placed in the Bill, but this Parliament remains sovereign. The Government are certainly committed to human rights and, as I indicated earlier, we will consider the devolution implications.

Photo of Pete Wishart Pete Wishart Shadow SNP Westminster Group Leader (Leader of the House of Commons)

That is just not good enough. These are fundamental and profound issues for the Scottish Parliament. We are dependent on the Human Rights Act for the competence of the Parliament. Will the Minister vow to go forward, make sure this is looked at properly, and come back with a more suitable and substantial response?

Photo of Therese Coffey Therese Coffey The Deputy Leader of the House of Commons

The hon. Gentleman is right that these are important matters, and I can assure him that my right hon. Friend the Secretary of State is engaging with the devolved Administration as we develop the proposals. It has to be said, however, that the amendment is squarely outwith the Smith commission agreement, which contained no proposals in this respect. The hon. and learned Member for Edinburgh South West herself said it was not directly a matter for the Scottish Parliament.

Clause 11 contains important provisions that transfer substantial new powers to ensure that the Scottish Parliament has a greater role and greater powers to make decisions about the operation and administration of itself and the Scottish Government. By doing so, the clause delivers a critical element of the Smith commission package. Among other matters, the clause transfers greater powers to the Scottish Parliament over its membership and proceedings and over the composition and powers of the Scottish Government. I hope that the House will agree to the clause.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

We are also grateful to see the hon. Lady in her place, and she is always welcome to make a contribution to Scottish debates, but I regret that her contribution today does not give us the comfort we seek on the protection of human rights in Scotland. We do not wish to press our amendment to a vote tonight, but we reserve the right to return to these matters later in the Bill’s proceedings. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.