Angus Robertson
Main Page: Angus Robertson (Scottish National Party - Moray)Department Debates - View all Angus Robertson's debates with the Scotland Office
(8 years, 11 months ago)
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Angus Robertson (Moray) (SNP)
It is a pleasure to serve under your chairmanship, Mr Hoyle. I welcome you back to your role. I wish to speak in support of amendment 58, which stands in my name and in the names of my hon. Friends.
The Scottish National party has submitted a series of amendments to the Scotland Bill based on the three-pronged commitment outlined in our manifesto for the UK general election: first, delivering on the Smith agreement in full; secondly, devolving additional powers in priority areas such as job creation and welfare protection; and, thirdly, enabling the Scottish Parliament to move to a position of full fiscal autonomy. This approach was backed in record numbers by voters in Scotland in May, giving the SNP a clear mandate for change, which the UK Government must recognise and must act upon.
The UK Government must live up to the words of the Prime Minister on 10 September 2014, when he said:
“If Scotland says it does want to stay inside the United Kingdom then all the options of devolution are there and are possible”.
If all options are possible, it is the duty of the UK Government to respond to the clearly expressed desire of the Scottish people for more powers in the Scotland Bill. The SNP amendments include effectively entrenching the Scottish Parliament—that is what we are discussing now—placing the Sewel convention on a meaningful statutory basis and giving the Scottish Parliament the legislative competence to remove the reservation on taxation, borrowing and public expenditure, enabling the Scottish Parliament to legislate to deliver full fiscal autonomy. The SNP also proposes amendments for further priority powers at later stages in the Bill, including powers over tax, setting the minimum wage and taking responsibility for welfare decisions. In this first group of amendments, I will speak on issues relating to the permanence of the Scottish Parliament, and my hon. Friend the Member for Dundee East (Stewart Hosie) will speak shortly on full fiscal autonomy.
Amendment 58 relates to the permanency of the Scottish Parliament and Government. Paragraph 21 of the Smith commission report stated:
“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions.”
However, in its analysis of the draft clauses published by the UK Government, the Scottish Parliament’s Devolution (Further Powers) Committee raised two main issues. As I stressed in the previous stage, that was an all-party Committee, involving members from the Scottish National party, the Scottish Labour party, the Scottish Conservative party, the Scottish Liberal Democrats and the Scottish Green party.
The Secretary of State for Scotland (David Mundell)
It is important to get it on the record that Alex Johnstone MSP has made it perfectly clear that his participation on the Committee is not to be conflated with the SNP press release issued at the time of the Committee’s report. He clearly supports the Committee’s report, but not the SNP’s attempt to distort that report.
Angus Robertson
It will no doubt be a relief to you, Mr Hoyle, that I will confine myself to the words agreed by all Committee members, including Mr Johnstone, when he signed up to the report.
That cross-party Committee found that the form of words on permanency proposed in the Scotland Bill was a weaker formulation than stating simply that the Scottish Parliament and the Scottish Government were permanent. We agree with the view of the Committee—and of Mr Johnstone—in paragraph 47:
“The Committee is of the view that the inclusion of the words ‘is recognised’ in draft clause 1 has the potential to weaken the effect of this clause, which would be unfortunate given the all-party agreement to this recommendation as part of the Smith Commission, and the views expressed to us by the former Secretary of State for Scotland that he perceives that the permanence of the Scottish Parliament and Scottish Government is guaranteed.”
The Committee was also told by the former Secretary of State that he was open to reconsidering the wording of draft clause 1, but changes were not made in the published Bill. This suggests that the Government might be open to the amendment.
Paragraph 49 of the report agreed by Mr Johnstone and all other Committee members states:
“In evidence to the Committee, the former Secretary of State for Scotland commented that he was ‘open to thinking about different ways in which…permanence could be achieved’. The Committee welcomes the openminded approach of the former Secretary of State with regard to this issue. The Committee therefore considers that there is scope to further strengthen the permanency provisions.”
The Committee’s analysis of the published Bill, however, confirmed that there was no change between the draft and the final clause.
The Committee called for additional protection in paragraph 50 of its report, supported by Mr Johnstone and all other members:
“The Committee considers that the effect of the clause on permanency, as currently drafted, is primarily declaratory and political rather than legal in effect. The UK doctrine of Parliamentary sovereignty makes achieving permanence problematic. The Committee recommends that the Scottish electorate should be asked to vote in a referendum if the issue of permanency was in question, with majorities also being required in the Scottish Parliament and the UK Parliament.”
That is the purpose of the SNP amendments, which we will be moving.
James Cleverly (Braintree) (Con)
Does the hon. Gentleman genuinely believe that there are circumstances in which the permanency of the Scottish Parliament could be called into question without the voice of Scottish people being heard?
Angus Robertson
I congratulate the hon. Gentleman on his election. I gently encourage him to remind himself of the position of the Conservative party in the run-up to the referendum on Scottish devolution. It was totally opposed to devolution, so he will perhaps understand why SNP Members, who have consistently supported home rule, wish to see that reflected in the legislation. He will have the opportunity to support the SNP amendment later.
Mr Graham Allen
If there is absolutely no threat whatever to the Scottish Parliament, why not put that fully on the face of the Bill, as the hon. Gentleman suggests?
Angus Robertson
The hon. Gentleman makes an excellent point. Hopefully, the Committee does not need to divide. If there is support from Labour and from the Government, everybody will be satisfied and we can move forward.
In legal terms, there is nothing to stop the Westminster Parliament from repealing clause 1, according to the doctrine of parliamentary sovereignty and the associated norm that one Parliament cannot bind its successors. The Scottish Government produced an alternative clause that includes a double lock—it would require that the clause cannot be repealed without the prior consent of the Scottish Parliament, and without the people of Scotland voting to abolish the Scottish Parliament in a referendum conducted for that purpose. The Scottish Government clause forms the basis of our amendment.
Mr Kevan Jones (North Durham) (Lab)
I have no objection to what the hon. Gentleman is trying to achieve, but can he clarify the amendment? It states:
“The Scottish Parliament is a permanent part of the United Kingdom’s constitution.”
The country does not have a constitution, so will he identify the legal definition and what is constitutional?
Angus Robertson
The hon. Gentleman knows that the UK does not have such a constitution—we are strong supporters of a constitution, whether for the UK or for Scotland—and that the constitution is based on custom and practice. Legislating on the matter would be an appropriate safeguard.
The SNP approach would strengthen the declaratory and political effect of the clause. It also acknowledges the position of the Scottish Parliament and the long-standing sovereign right of the people of Scotland to determine the form of government best suited to their needs, as recognised in paragraph 20 of the Smith commission report, which states:
“Reflecting the sovereign right of the people of Scotland to determine the form of government best suited to their needs, as expressed in the referendum on 18 September 2014, and in the context of Scotland remaining within the UK, an enhanced devolution settlement for Scotland will be durable, responsive and democratic.”
Mr Jones
I am just trying to be helpful. The hon. Gentleman might have the wording “United Kingdom’s constitution” in an amendment, but would it have any legal force? An amendment to the American constitution, or to any other written constitution, is legally binding. What would be the status of the hon. Gentleman’s amendment?
Angus Robertson
I am making the point that it would be very difficult for people to go back on legislation with the express wording proposed in the amendment. It is not that difficult a concept to grasp.
The Scottish Government noted in their response to the Devolution (Further Powers) Committee interim report that both the House of Commons Political and Constitutional Reform Committee—I am looking at the hon. Member for Nottingham North (Mr Allen), who served with great distinction as the Chairman of that Committee—and the House of Lords Constitution Committee raised concerns with those aspects of the UK Government’s clause.
The Scottish Government’s alternative clause and the SNP amendments address more minor issues with the UK Government’s clause, using the definite article “the” instead of the indefinite “a”, as that is the language used in the Scotland Act 1998. That was picked up by the right hon. Member for Orkney and Shetland (Mr Carmichael).
Angus Robertson
I want to make some progress, if the hon. Gentleman will forgive me. I have given way to Members on both sides of the Committee.
The SNP also suggests using “constitution” rather than “constitutional arrangements”, because the former term is already straightforwardly used in the 1998 Act. “Constitutional arrangements” is a term most commonly used to refer to the governing arrangements of bodies and offices, and is therefore inappropriate for describing the governance of Scotland. That is politically important for both the Conservatives and the Labour party, given that the very first words of the vow were:
“The Scottish Parliament is permanent, and extensive new powers for the Parliament will be delivered”.
In his foreword to the Smith commission report, Lord Smith made the position clear by saying:
“The Scottish Parliament will be made permanent in UK legislation”.
The main body of the report, however, had a slightly weaker formulation:
“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions.”
The fact that the cross-party Scottish Parliament devolution committee—including the Scottish Conservative party, and now, as a result of amendments to this part of the Bill, the SNP, the Liberal Democrats and Labour—has sought to deliver a stronger legal protection for permanence suggests that the Westminster Conservatives are the only partners in the Smith deal who hold the softer interpretation of what Smith was proposing.
Angus Robertson
It is an honour to serve under your chairmanship, Mr Crausby, and to follow the hon. Member for Nottingham North (Mr Allen). I can give him the assurance that my right hon. and hon. Friends on the Scottish National party Benches will be resolute in our support of the Human Rights Act and the European convention on human rights.
I would like to speak to new clause 10. Paragraph 22 of the Smith report, entitled “Scottish Parliament consent to the UK Parliament making law in devolved areas”, recommended, simply and with no room for ambiguity, that
“The Sewel Convention will be put on a statutory footing.”
The details of clause 2 are therefore really important. The Scotland Bill, as drafted, seeks to implement this recommendation by adding a new subsection (8) to section 28 of the Scotland Act 1998. The positioning of this new provision is significant because the provision before it, section 28(7), makes an unambiguous assertion of Westminster’s parliamentary sovereignty and the legislative supremacy of the UK Parliament. Section 28(7) declares:
“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”
This is therefore a clear statement that Westminster continues to have the legal power to legislate for Scotland across devolved, as well as reserved, areas of public policy. Clause 2 inserts section 28(8), which states:
“But 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.”
In paragraph 61 of its report, the Scottish Parliament Devolution (Further Powers) Committee considered that the draft clause placed
“the purpose of the Sewel Convention in statute”—
but—
“does not incorporate in legislation the process for consultation and consent where Westminster plans to legislate in a devolved area.”
In addition, the Committee recommended that the words “but it is recognised” and “normally” in the draft clause should be removed because they weaken the intention of the Smith recommendations. We agree with the all-party Committee’s analysis.
The current clause fails to implement the Smith recommendation in three respects. First, on amendments to the legislative competence of the Scottish Parliament, the Sewel convention, as set out in devolution guidance note 10, also requires the consent of the Scottish Parliament to Westminster legislation that alters the legislative competence of the Scottish Parliament or the Executive competence of Scottish Ministers. The clause does not refer to either of those categories. This is a significant omission. As the House of Commons Political and Constitutional Reform Committee noted, and as the hon. Member for Nottingham North no doubt remembers:
“We heard in oral evidence from Professor McHarg and in written evidence from Dr Adam Tucker and Dr Adam Perry that the draft clause failed to acknowledge the full scope of the Sewel Convention as it is currently applied in practice. The clause refers only to the Convention’s applicability in respect of devolved matters: it was pointed out to us that the Convention is also applied to legislation affecting the competences of the devolved institutions.”
This is reflected in the UK Government’s devolution guidance note 10, which states that a Bill requiring Scottish parliamentary consent under the Sewel convention is one which
“contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers.”
DGN 10 is referred to in the Command Paper, containing the draft clauses, as follows: “It is expected that the practice developed under Devolution Guidance Note 10 will continue.”
DGN 10 has no legal effect, but sets out how the UK Government Departments legislating in Scotland will meet the terms of the convention. This practice is not reflected in the drafting of clause 2.
Secondly, on statute as a convention, the clause puts the Sewel convention into legislation as a convention, rather than putting the convention on a statutory footing. As the Scottish Government have pointed out to the Scottish Parliament Committee, this is very different from precedents where the UK has placed other conventions on a statutory footing, such as the Ponsonby convention relating to treaty ratification. Again, as the House of Commons Political and Constitutional Reform Committee noted:
“We consider that draft clause 2 does not give the Sewel Convention the force of statute, but may strengthen the Convention politically. We believe it fails to acknowledge that the Convention extends to legislation affecting the competences of the devolved institutions. We recommend that the presence of the word ‘normally’ in the Sewel Convention, and the applicability of the Convention to legislation affecting the competences of the devolved institutions, be addressed in any redrafting of draft clause 2.”
Thirdly, on the consultation requirement, as has been widely noted and as set out in DGN 10, the effective operation of the Sewel convention depends on consultation between the Scottish and UK Governments, which the Secretary of State for Scotland made play of earlier. The clause, however, fails to include any consultation requirements.
The Scottish Government’s alternative clause, which we have tabled as a new clause, addresses those deficiencies and properly places the Sewel convention on a statutory footing. The opening subsection of the alternative adds to section 28 of the Scotland Act by providing a clear statement of the Sewel convention that the UK Parliament must not pass Acts applying to Scotland about a devolved matter without the consent of the Scottish Parliament. It then defines “about a devolved matter” to encompass all three categories covered by DGN 10: legislation in a devolved area; changing the legislative competence of the Scottish Parliament; and adjusting the Executive competence of the Scottish Government.
The alternative clause then provides for a new section 28A to be inserted into the Scotland Act. This is a straightforward consultation provision requiring the UK Government to consult the Scottish Government before introducing to Westminster Bills that apply to Scotland. Where the Westminster Bill would require the consent of the Scottish Parliament under section 28, as amended, the UK Government should share a copy of the provisions of the Bill that apply to Scotland with the Scottish Government 21 days before introduction at Westminster. However, there is an understanding that, on occasion, it is necessary to expedite the legislative process, and therefore the alternative clause is pragmatic and flexible in allowing the consultation requirement to be curtailed in certain circumstances.
The Scottish Parliament has of course looked at the clauses proposed by the Government, and its Devolution (Further Powers) Committee considered
“that the current draft clause, whilst placing the purpose of the Sewel Convention in statute, does not incorporate in legislation the process for consultation and consent where Westminster plans to legislate in a devolved area. The Committee considers that it should do so. Moreover, the Committee considers that the use of the words ‘but it is recognised’ and ‘normally’ has the potential to weaken the intention of the Smith Commission‘s recommendation in this area and recommends that these words be removed from the draft clause.
For those reasons, I urge Members on both sides of the Committee to support the measure we are promoting. In response to the published Bill, the Committee called for the specified words to be removed from the clause, but there has been no change: clause 2 is identical to the draft clause 2 we saw those many months ago.
Given everything we hear about reflecting, improvements, co-operation and the UK Government listening to the Scottish Government, the SNP and other parties, I would love to hear from the Secretary of State, whose ear I am hoping to catch, at what stage the Government intend to accept and implement these improvements. As drafted, the clause does not implement the Smith recommendation. As I have said, that critique was agreed by all parties in the Scottish Parliament, and I hope the UK Government will take that on board.
The clause puts the Sewel convention into statute, rather than putting it on a statutory footing, as required by paragraph 22 of the Smith report. In our view, the intention of the Smith recommendations was that key aspects of DGN 10 would be codified in statute. As it stands, the clause sets out the basic principle, but provides no statutory process for consultation and consent where Westminster plans to legislate for Scotland in devolved areas. As things stand, the Bill has not been drafted to take account of the shortcomings; does not put the Sewel convention on a meaningful statutory basis; does not adequately implement the Smith commission recommendations; and does not apply to changes to the legislative competence of the Scottish Parliament or Executive competence of Scottish Ministers. That is why we will be pressing for these changes.
Mr Alistair Carmichael
Amendments 19 and 20 have their genesis in the efforts of the Law Society of Scotland and seek to achieve much the same ends as those already outlined by the hon. Members for Caerphilly (Wayne David) and for Moray (Angus Robertson). On a very literal basis, clause 2 does implement the Sewel convention, which is why the word “normally” is in there. When Lord Sewel, during consideration of the Scotland Act 1998 in the other place, gave his undertaking, the word “normally” was used. However, as has become apparent from the comments of the hon. Member for Moray and others, the operation of the convention over the years has been very different—we now have DGN 10—and on reflection, with the benefit of pre-legislative scrutiny, it should be revisited in the terms before the House. I do not necessarily expect the Secretary of State to accept the amendments, but I hope he will acknowledge that this is a legitimate point that it would cost the Government nothing to adopt. It would be an indication that they are listening and of their good will.
New clause 5 is in the name of the hon. Member for Nottingham North (Mr Allen). I enjoyed the trailer for his Second Reading speech to the Human Rights Act abolition Bill—if we are ever to see it; it is notable, of course, that it was not in the Queen’s Speech. I hope that, having looked into the abyss and seen the myriad complications that would come from their proposal, the Government might find extensive and mature consideration necessary and that we might, in fact, never see that Second Reading.
Wayne David
We shall not be pressing any of our amendments to a vote. I note that the Secretary of State has said that he is not convinced “at this stage”, and I take that to mean that he is open to persuasion and willing to listen. I hope he will be persuaded by arguments that will be put to him in the other place, and, indeed, by Members of the Scottish Parliament, which he will visit shortly.
There is something of a mismatch between theory and practice here. Theory has it that this Parliament is absolutely sovereign, but, in practice, the very existence of devolution puts constraints on that sovereignty, as does the very fact that we are members of the European Union. I think that we have reached a point at which that needs to be legally recognised. There is no doubt that the word “normally” is legally imprecise, and if it ever arose in a court of law, enormous difficulties would result because of that conflict between theory and practice.
I take on board what the Secretary of State has said, and I hope that we shall see some movement. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Clause 3
Elections
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.
Angus Robertson
It is a pleasure to speak about this string of amendments and new clauses relating to elections to the Scottish Parliament and local authorities.
As Members will know, paragraph 23 of the cross-party Smith commission report recommended that the Scottish Parliament should have
“all powers in relation to elections to the Scottish Parliament and local government elections in Scotland (but not in relation to Westminster or European elections). This will include powers in relation to campaign spending limits and periods and party political broadcasts.”
Additional detail was set out in paragraph 24 of the agreement.
Clauses 3 to 9, which are the focus of this group of amendments, seek to address that recommendation. While the clauses have some merit, we believe that there are still a number of issues to be worked on with the United Kingdom Government. In particular, some parts of the clauses limit the Scottish Parliament’s powers beyond those proposed in Smith. As the Scottish Government said in their response to the report of the Scottish Parliament’s Devolution (Further Powers) Committee, clause 3 does not fully implement the Smith commission’s recommendation. That is why the Scottish Government have proposed an alternative to the clause, which forms the basis of our amendments.
Our proposal would replace, rather than amend, the section B3 Elections reservation in schedule 5 to the Scotland Act 1998. That is designed to make the effects of the clause clearer. We propose that part (A) should reserve elections for membership of the House of Commons and the European Parliament, while part (B) should refer to Scottish Parliament elections and local government elections in Scotland. Our amendments reserve the holding of a Scottish election vote on the same day as a UK parliamentary general election, a European parliamentary election, or an ordinary local government election in Scotland. That would implement paragraph 24(4) of the Smith report.
In their response to the Devolution (Further Powers) Committee, the Scottish Government said:
“We have removed paragraph (b) of the combination of polls provision in Part (B), which would have had the effect of reserving the combination of devolved polls. Should the timing rules be varied to allow ordinary Scottish Parliament and ordinary Scottish local government polls to coincide, then the Secretary of State would have had competence over the devolved conduct rules, which would otherwise both be the responsibility of the Scottish Parliament. This is clearly undesirable and goes beyond the Smith recommendation.”
The Scottish Government suggested alternative drafting in relation to the digital service, which they, and we, think is clearer about the actual effect of the reservation. The reference to the reservation of parts 5 and 6 of the Political Parties, Elections and Referendums Act 2000 is the same as that in the Scotland Bill.
The Scottish Government have said that they are generally content with clauses 4 to 9, subject to the changes that they are proposing to the United Kingdom Government. The Secretary of State is no longer present, but no doubt his colleagues will be avidly taking notes about the Scottish Government’s suggestions. We have heard, in good faith, that they will be taken on board and considered in full, and hopefully they will be.
The Committee will excuse me if I rely heavily on the points of detail set out by the Scottish Government and shared with the UK Government and the devolution Committee of the Scottish Parliament. The first of those, in relation to clause 4, the part which enables Scottish Ministers to make provision by order for the combination of polls for a specified list of polls that currently may coincide, could be simplified. The reservation of the power to make combination rules could be removed from section B3, and the list of coinciding polls at section l2(2)(d) could be replaced with a provision that gives Scottish Ministers power to provide for the combination of polls and referendums that are within the legislative competence of the Scottish Parliament.
The references to use of the digital service could be seen to conflict with clause 6. This currently gives Scottish Ministers some powers to make provision, with the agreement of the Secretary of State. This could be read as restricting the use of the digital service beyond what is actually needed or intended.
Clause 5(3) goes beyond what was recommended by the Smith commission. The Smith agreement clearly sought only to prevent the polls from being held on the same day. The Scottish Government would wish to adhere to that narrow limitation. Their preference would be for the words
“or within two months before”
to be omitted from clause 5(3).
In clause 6, the Scottish Government view is that the definition of
“use of the digital service”
is overcomplicated. They also believe that the inserted section 6(3) may be out of step with existing provision in this area, as it appears to suggest that a person cannot use the digital service unless they are eligible to register, when there is nothing to suggest any current restriction on those who may use the service. If the purpose of the digital service is to determine whether an applicant is eligible to register, this provision could be omitted.
Also in clause 6, and in common with the approach to the vetoes throughout the Bill, we believe that the provision at subsection 11—
“Regulations made by the Scottish Ministers by virtue of subsection (9) may not be made without the agreement of the Secretary of State”—
should be removed. We will, of course, return to vetoes at a later stage of our consideration.
On clause 7, the Scottish Government have noted that this power does not apply where any other poll is combined with a Scottish Parliament election. They accept this in principle as a practical approach, but they suggest that it should be limited to the combination of a Scottish Parliament election with any other poll that is outwith the Parliament’s competence. The provision as drafted would have the effect that, should the timing provisions be varied to permit Scottish Parliament elections to be combined with local government elections in Scotland, the combination rules would be reserved, which would be undesirable.
On clause 9, the Scottish Government argue that subsection (6) can be omitted as the Scottish Parliament (Elections etc.) Order 2010 is already devolved under the Scotland Act 2012. The Smith commission recommended that the Scottish Parliament should have all powers in relation to Scottish Parliament elections and elections to local government in Scotland. In doing so, the commission specifically stated that this would include party political broadcasts. There does not appear to be any provision to this effect in the draft clauses. We hope the Government will address this point in particular.
The Smith commission also recommended that
“the Electoral Commission will continue to operate on a UK-wide basis. The Scottish Parliament will have competence over the functions of the Electoral Commission in relation to Scottish Parliament elections and local government elections in Scotland. The Electoral Commission will report to the UK Parliament in relation to UK and European elections and to the Scottish Parliament in relation to Scottish Parliament and local government elections in Scotland.”
We believe that clause 3 does not fully deliver the second part of this recommendation. An alternative approach should be considered, to give greater clarity and to ensure that the Scottish Parliament will have competence over the commission’s functions in relation to Scottish Parliament elections and local government elections in Scotland.
These may seem very technical areas, but they are important. I note that those on the Treasury Front Bench have been listening with interest and they no doubt will look at the record. We hope they can be persuaded to accept amendment 60 later. If they do not, I trust they will be consulting colleagues about how to take on the technical improvements that we have outlined and that I have spoken in support of this evening.
Mr Graham Allen
I should like to speak to amendments 46 and 47, if I may. I am sure that colleagues will know that the largest amount of public consultation ever achieved by a Select Committee was on the “Voter engagement in the UK” report that the Political and Constitutional Reform Committee produced just before the last general election. The report covered a raft of ways in which we as a House and as politicians—and politics in general—could re-engage with people out there.
The Committee did some technical stuff, and I want to talk this evening about the amendments relating to automatic registration and online voting. Anyone who believes in devolution will know that it is not possible to mandate the nations of the Union to conduct themselves and their democracy in a specified way from the centre, or even from the federal Parliaments. There has to be a degree of discretion and a degree of trust, particularly when there is an institution with the status of a Parliament within one of our nations. I would argue that that should also apply to an Assembly and an Executive and that, when we get devolution in England, it should apply to the means of devolution here as well. I would argue strongly that that should take the form of constitutionally separate local government, which is commonplace in every western democracy apart from our own.
Anyone who believes in that, and who believes that there can be a rich diversity of approaches to our democracy to suit national and local characteristics, will understand that it is key to ensure that our colleagues in the Scottish Parliament and the Scottish Government maintain and extend their discretion on matters such as automatic registration and on the suggestion in my Committee’s report for online voting. It would be out of order to suggest that that happens overnight in other nations, but we are in the middle of discussing the Scotland Bill and it is highly pertinent to say that if the representatives in the Scottish Parliament wish it, they could take forward a proposal on automatic registration, just as they did so innovatively in relation to votes for 16 and 17-year-olds before the referendum.
Such a measure would be important because it would allow everyone to participate, and because we have a false dichotomy about how boundaries could change unless registered electors met a certain number. I will explain this to the Committee—I am getting there slowly. If a small number of people are registered, that does not mean that there is a small number of constituents. In fact, some colleagues argue strongly that the people who give us the highest number of casework items are those who are not on the register. Should we say to them, “Sorry, you’re not on the register so I’m not going to help you”? Of course not.
Automatic registration can be achieved using a number of devices. I am going to ask the hon. Member for Meon Valley (George Hollingbery) some questions about this afterwards, so I hope he is paying attention. I hope that it could be achieved through registration with the Department for Work and Pensions, for example, or through credit ratings or council tax forms. It is entirely possible to make registration almost automatic. I see the distinguished members of the Political and Constitutional Reform Committee nodding eagerly in approval of what I am saying.
The Committee also looked at online voting, and 16,000 people responded to our consultation on this. Lots of organisations also put out online information and questionnaires for us. The Committee found that the most popular option was online voting. It obviously appeals to particular groups of people at the moment, but it is clearly something whose time will come very soon. Sometimes the other place is innovative. On this occasion, there is so much we can learn from the way our devolved friends in the Scottish Parliament conduct their business. Why should they not be the first to trial online voting in certain well-prescribed circumstances, which they would keep an eye on and feel responsible for, and which I am sure they would make a success. I will not detain the Committee any further on this, other than to say that diversity, experimentation and creativity are the hallmarks of proper devolution and these are just two small ways in which we could encourage our friends in the Scottish Parliament to take devolution that little bit further in their own nation.
Angus Robertson
I know that we are running out of time, so I will not detain the Committee. I have listened to what the Minister has said and beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 92, page 2, leave out lines 30 to 32 and insert—
“Any digital service provided by a Minister of the Crown for the registration of electors.”.
This amends the reservation of the Digital Service to allow for future changes, such as to the operational mechanisms of the Service, subsequent amendments to the Representation of the People (Scotland) Regulations 2001 (SI 2001/497) and for transfers of functions between Ministers.
Amendment 93, page 2, leave out lines 33 to 37 and insert—
(a) Parts 5 and 6 of the Political Parties, Elections and Referendums Act 2000 (expenditure in connection with elections) in relation to an election within the legislative competence of the Parliament, where the poll at the election is combined with the poll at an election for membership of the House of Commons or the European Parliament, and
(b) sections 145 to 148 and 150 to 154 of that Act (enforcement) as they apply for the purposes of Part 5 or 6, so far as the subject-matter of that Part is reserved by paragraph (a).”.
This amendment amends the reservation relating to Parts 5 and 6 of the Political Parties, Elections and Referendums Act 2000 to make clear that sections 145 to 148 and 150 to 154 are also reserved to the extent that those Parts are reserved.
Amendment 94, page 3, line 1, leave out from “Act” to end of line 2 and insert
“as they apply for the purposes of section 155 or 156, so far as the subject-matter of that section”.
This amendment makes drafting changes to the reservation of sections 145 to 148 and 150 to 154 of the Political Parties, Elections and Referendums Act 2000 in line with amendment 93.
Amendment 95, page 3 , leave out line 12 and insert—
“(c) sections 12, 21 to 33, 35 to 37, 39 to 57, 58 to 67, 69, 71, 71F, 71G, 71H to 71Y and 140A,”.
This amendment amends the reservation of the Political Parties, Elections and Referendums Act 2000 so that sections of that Act which have been repealed, make amendments to other legislation or do not relate to elections to the Scottish Parliament are not included in the reservation.
Amendment 96, page 3, line 15, after “157”, insert “and 159”.
This amendment amends the reservation of the Political Parties, Elections and Referendums Act 2000 in B3(B) so that section 158 is not reserved. Section 158 provides for amendments and repeals of other legislation and therefore there is no subject-matter within this section that needs to be reserved.
Amendment 97, page 3, line 16, leave out from “154” to end of line 18 and insert
“as they apply for the purposes of a provision mentioned in paragraphs (a) to (e), so far as the subject matter of that provision is reserved by those paragraphs.”
This amendment makes drafting changes to the reservation of sections 145 to 148 and 150 to 154 of the Political Parties, Elections and Referendums Act 2000 in line with amendment 93.
Amendment 98, page 3, leave out lines 20 to 25.—(Stephen Barclay.)
Due to amendment 92, definitions of the “digital service” and “elections in Scotland” are no longer required.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4
Power to make provision about elections
Amendments made: 99, page 4, line 30, leave out from “of” to end of line 32 and insert
“any digital service provided by a Minister of the Crown for the registration of electors”.
This amendment ensures that subsection (4) of new section 12 of the Scotland Act 1998 refers to the amended reservation of the Digital Service (see amendment 92).
Amendment 100, , page 5, leave out lines 1 to 3. —(Stephen Barclay.)
Due to amendment 92, a definition of the “digital service” is no longer required.
Clause 4, as amended, ordered to stand part of the Bill.
Clause 5
Timing of elections
Amendment made: 101, page 6, line 4, leave out “, or within two months before,”.—(Stephen Barclay.)
This amendment removes the provision preventing a Scottish parliamentary ordinary general election from being held in the two months before a UK or European parliamentary general election, but such an election to the Scottish Parliament could not be held on the same day as such elections to the UK or European Parliaments.
Amendment proposed: 43, page 6, line 8, at end insert—
“(c) A referendum called under reserved powers”.—(Wayne David.)
Question put, That the amendment be made.