My Lords, in moving Amendment 11, I will speak also to Amendments 15 and 16, which are in my name and that of my noble and learned friend Lord Wallace of Tankerness. We have also signed Amendment 14 in the name of the noble Lord, Lord Cormack, which leaves out the word “normally” in Clause 2.
As background, and to develop what I was saying earlier, Amendments 15 and 16 provide for the consent of the Scottish Parliament to be sought in the event of any alteration to,
“the legislative competence of the Scottish Parliament or the executive competence of the Scottish Government”.
I acknowledge the support that has been given by the Law Society of Scotland in terms of the background and the drafting of these amendments, which reflect normal working practice—the normal arrangements that exist currently and have developed, as my noble friend Lord Steel of Aikwood identified, over the period of the existence of the Scottish Parliament; that is, since 1999.
The Sewel convention applies when UK legislation makes provision specifically designed for a devolved purpose. The convention has been agreed in memoranda of understanding and by the House of Commons Procedure Committee, and its practical usage is explained in Devolution Guidance Note 10. DGN10 does not apply to incidental or consequential provisions in relation to a reserved matter. It does apply to draft Bills and Private Members’ Bills. It will also apparently continue to apply to any statutory formulation of the convention. It is significant that DGN10 also requires the consent of the Scottish Parliament in respect of provisions of
a Bill before the UK Parliament which would alter the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers. It seems, however, that Clause 2 would not apply to this latter category of provision so Amendment 16 is intended to remedy that deficiency.
The Secretary of State for Scotland in the other place rejected the arguments in relation to this. When these matters were considered in Committee on 15 June, David Mundell stated:
“On amendments 19 and 20 … as I have said, the Bill adopts the language that formed the basis of the Sewel convention … We have established that the Bill clearly states that the UK Parliament ‘will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.’ That is what the well-established Sewel convention does, and it has been consistently adhered to by successive UK Governments. We have had more than 15 years of good practice of the convention. It has not been breached. In the context of my earlier remarks, I do not accept that it could be. I believe that that current good practice will continue”.—[Official Report, Commons, 15/6/15; col. 107.]
Unfortunately, Clause 2 deals with only part of the Sewel convention—the part declared by Lord Sewel in the Scotland Bill back in 1998—and does not cover the point in DGN10 about changes to the legislative competence of the Parliament or the executive competence of the Scottish Government. This deficiency may indicate that the good practice which the Secretary of State wishes to preserve will not apply to these types of issue. My simple question would be: why leave the doubt?
Amendment 11 would qualify Section 28(7) of the Scotland Act 1998 to allow for the possibility of circumstances where the power of the UK Parliament to make laws for Scotland is constrained. Taken together with Amendments 15 and 16, Amendment 11 would allow the Scottish Parliament to withhold its consent from UK legislation which relates to devolved matters. Yes, that would impinge on the sovereignty of the UK Parliament but, as someone who supports a federal settlement, I have no problem with restricting the sovereignty of this Parliament. For those who support a constitutional convention—there are many around this Chamber—and those who would support a federal settlement arising from this, we all have to recognise that the sovereignty of the UK Parliament would change.
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