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It was clear from that previous debate that an overwhelming majority of members in the Parliament are opposed to the bill. The bill was referred to the Devolution (Further Powers) Committee, which raised serious concerns about it and its impact on Scotland. I believe that the vast majority of members of the Parliament accept those concerns and will, like Labour, support the Government motion at decision time today.
In our previous debate, the cabinet secretary set out the reasons why she believed that the provisions of the bill and its impact on Scotland, Scottish workers, Scottish businesses and Scottish services meant that a legislative consent motion was necessary. She was right to refer to the way in which regulations are to be made and the impact on devolved services and public bodies. To back up her case, she referenced the Scottish Agricultural Wages Board and, critically, she mentioned the potential breach of human rights legislation.
In that debate, Labour members pointed to the impact on the NHS, local government, the police, the fire service, transport, the civil service and all other devolved responsibilities. The cabinet secretary said:
“Ultimately, it will be for the parliamentary authorities to decide on the need for a consent motion, but the political will of the Government is clear. In my view, it is entirely right that the Parliament has the opportunity to vote on proposed legislation that I believe is aggressive, regressive and an unwarranted ideological attack on workers’ rights.”
I agreed with that analysis.
The cabinet secretary also said in that speech:
“I have asked our legal advisers to explore several possible bases for a legislative consent memorandum and motion.”—[Official Report, 10 November 2015; c 23, 22.]
However, the Presiding Officer rejected that motion, and that ruling prevents the Parliament from acting. That was wrong in process and in the decision made, but we are where we are and we have to deal with the hand we have been dealt. Therefore, rather than say “If only this could happen or that had happened” or “If only we had this power or that power,” we should use the powers and procedures that are available to us to ensure that the Parliament’s will is respected and that we have such a debate and vote.
In the previous debate, the cabinet secretary said that she had taken legal advice. I presume that the Government lawyers approved the LCM and could justify it. I contend that that was on the basis that facility time, check-off, the impact on the administration of services, the contracts of employees and competition law all impinge on the Scottish ministers’ executive competence and duties. There is little doubt in my mind that they do that but, despite all that, the LCM approach was rejected.
In that debate, the cabinet secretary also said that it was the first time that the Scottish Government and UK Government had disagreed on the need for an LCM. Given what is happening on the devolution of powers, it may be the first time but I question whether will be the last. We have to do something about that. Should the situation arise again, the Parliament must have the power to deal with it and put the power in the hands of its democratically elected members.
Given the new powers that we are going to get, such disputes are likely to arise more frequently, but we should not leave the decision in the office of the Presiding Officer, whoever he or she is, and leave them exposed, as they would have to put their name to such a ruling. Therefore, we propose that, where there is disagreement between the two Parliaments on whether a legislative consent motion is required, or where any member of this Parliament believes that one is required, members should have the right to lodge such a motion and have the Parliament vote on it. That would put power into the hands of MSPs and increase the democracy and accountability of the Parliament.