Scotland Bill

Joanna Cherry Excerpts

Monday 15th June 2015 Commons Chamber

[Ian Murray]

I will give way again, but first let me make some progress.

It is simple: the pooling and sharing of resources across the UK, and the maintenance of the Barnett formula, benefits Scotland. The much-quoted Institute for Fiscal Studies, which the SNP continually rubbishes, has demonstrated beyond argument that full fiscal autonomy would result in Scotland having a deficit of some £7.6 billion. Before SNP Members jump up to challenge those expert figures, I want to put it on the record that that is over and above any current UK deficit and UK spending projections.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the hon. Gentleman agree that all this talk of black holes with full fiscal autonomy fails to recognise that a black hole exists already as a result of the policies of successive Westminster Governments, both Tory and Labour, and for which the Tories are now making the poorest and most vulnerable in our society pay? [Hon. Members: “Speech.”] The case that Labour is making in attacking full fiscal autonomy is that things are so bad that letting the Tories fix the deficit their way is better—[Interruption.] I am going to keep going—[Interruption.]

[The Temporary Chair (Mr David Crausby)]

Order. Interventions should be short, and the Committee should be tolerant of that.

[Joanna Cherry]

Does the hon. Gentleman agree that his party should have more ambition for Scotland?

[Ian Murray]

This is the nub of the matter: if we try to scrutinise what would be a devastating policy for Scotland, we are accused of not being ambitious for Scotland. For the avoidance of doubt, that £7.6 billion is over and above the UK deficit. I agree with the hon. Lady that the Conservative Government made a complete shambles of getting rid of the deficit in the previous Parliament, breaking all their promises and only halving it. But the actual deficit—I have the IFS paper here—is not just £7.6 billion, but £7.6 billion over and above the current UK deficit, which is £14.2 billion. That is not a lack of ambition for Scotland, but a warning against a fiscal policy that would be folly for families up and down Scotland.

--- Later in debate ---

Super-majority requirement for certain legislation

[Joanna Cherry]

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.

[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

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.

[Joanna Cherry]

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, 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. 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. The right hon. and learned Member for Beaconsfield (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.

[Mr Alistair Carmichael]

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.

--- Later in debate ---

[Dr Coffey]

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 Committee will agree to the clause.

[Joanna Cherry]

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.

Clause 11

Scope to modify the Scotland Act 1998

Amendments made: 108, page 13, line 32, before “section” insert

“section 112(1) and (3) to (5),”.

This amendment would allow the Scottish Parliament to modify subsections (1) and (3) to (5) of section 112 of the Scotland Act 1998 to the extent that those subsections apply to any power exercisable within devolved competence to make subordinate legislation.

Amendment 109, page 13, line 34, leave out from “power” to end of line 36 and insert

“exercisable within devolved competence to make subordinate legislation),”.

This amendment would allow the Scottish Parliament to modify the sections of the Scotland Act 1998 to be listed at sub-paragraph 4(2)(e)(i) of Schedule 4 so far as those sections apply to any powers exercisable within devolved competence to make subordinate legislation (including Orders in Council).

Amendment 110, page 13, line 37, at end insert

“, and

(iii) section 124 (so far as that section applies to any power exercisable within devolved competence to make subordinate legislation),”—(Stephen Barclay.)

This amendment would allow the Scottish Parliament to modify section 124 of the Scotland Act 1998 to the extent that the section applies to any power exercisable within devolved competence to make subordinate legislation.

Amendment proposed: 89, page 13, line 42, at end insert—

‘(2A) In paragraph 4 of Schedule 4 (protection of Scotland Act 1998 from modification), insert new sub-paragraph—

“(5A) This paragraph does not apply to amendments to Schedule 5, Part II, Head A, Section A1 insofar as they relate to:

(a) taxes and excise in Scotland,

(b) government borrowing and lending in Scotland, and

(c) control over public expenditure in Scotland.” —(Joanna Cherry.)

This amendment would enable the Scottish Parliament to amend the Scotland Act 1998 to remove the reservation on taxation, borrowing and public expenditure in Scotland, with the effect that the Scottish Parliament could then legislate in these areas to provide for full fiscal autonomy in Scotland.

Question put, That the amendment be made.