SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 1, page 1, line 7 leave out “A” and insert “The” Effect Paving amendment. 1 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 1, page 1, line 7 Leave out “recognised as” Effect This amendment deletes the words “recognised as” from Clause 1. Reason The Smith Commission reported on 27 November 2014. Pillar 1 of the Smith Agreement relates to providing a “durable but responsive constitutional settlement for the governance of Scotland”. Paragraph 21 of the report concerns the permanence of the Scottish Parliament and provides that “UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”. Clause 1(1) inserts a new subsection (1A) into Section 1 of the Scotland Act 1998. It states that “A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements”. Similar phraseology is used for the purposes of amending Section 44 of the Scotland Act 1998 which makes provision for the Scottish Government. That Section, which was amended by the Scotland Act 2012 will now have a new sub-section 1 which declares that “there shall be a Scottish Government and that a Scottish Government is recognised as a permanent part of the United Kingdom’s constitutional arrangements…” The clause does not literally implement the terms of Paragraph 21 of the Smith Report. The use of the phrase “recognised as permanent” has a different nuance from a statement that “the Scottish Parliament and Scottish Government are permanent institutions”. This was raised by the Scottish Parliament’s Devolution (Further Powers) Committee in its interim report on the Smith Commission (SP paper 720), Paragraph 48 and the amendment reflects the Committee’s recommendation. 2 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 1, page 1, line 12 Leave out “recognised as “ Effect Consequential amendment. 3 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 2, page 2, line 3 Leave out “normally” Effect This amendment deletes the word normally from Section 28(8) of the Scotland Act 1998 inserted by Clause 2. Reason The Sewel Convention was declared in the House of Lords during the passage of the Scotland Bill 1998 on 21 July 1998, during a debate on an amendment by Lord Mackay of Drumadoon concerning Clause 27(7) – now Section 28(7). Clause 2 inserts a new sub-section 28(8) into the Scotland Act 1998 s.28 which seeks to recognise that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament. In one sense, this does place the Sewel Convention on a statutory footing as required by Paragraph 22 of the Smith Report. The clause quotes Lord Sewel’s statement at Column 791 where he said that “we would expect a Convention to be established that Westminster would not normally legislate, with regard to devolved matters in Scotland, without the consent of the Scottish Parliament”. The direct quote from Lord Sewel including the word “normally” does not go far enough to ensure that the UK Parliament will not legislate on devolved or related issues without the consent of the Scottish Parliament. Removing “normally” is a step towards making the provision more robust. 4 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 2, page 2, line 3 After legislate insert “(a)” Effect Paving amendment. 5 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 2, page 2, line 3 After “matters” insert “and (b) to alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Government” Effect This amendment provides 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. Reason 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 Number 10 (DGN10). 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 the Scottish Ministers (see DGN 10 at paragraphs 4(iii) and 9). It would seem, however, that Clause 2 would not apply to this latter category of provision. This amendment remedies that deficiency. 6 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 10, page 11, line 27 Add at end – "(a) the period between general elections specified in section 2(2)" Effect This amendment adds the term of a parliament to the list of protected subject matters to which a super-majority will apply. Reason Section 2(2) of the Scotland Act 1998 provides that the general election for the Scottish Parliament will be at 4 yearly intervals. This amendment includes the term of the Parliament in the protected subject matters to which the super-majority applies. This will insulate parliamentary terms from being altered to the political advantage of any Scottish Government. 7 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 10, page 11, line 30 Add at end – "(c) the alteration of boundaries of constituencies, regions, or any equivalent electoral area" Effect This amendment includes in the list of protected subject- matters the capacity to change boundaries. Reason This amendment amends section 10(5) by inserting a new paragraph into the new subsection (5) to include constituency boundary changes in the list of protected subject- matters which require a super-majority to change. This will insulate constituencies from being altered for political advantage. 8 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 31, page 30, line 34 Leave out "may" and insert "must" Effect This amendment removes the Treasury's discretion about making a scheme to transfer the Scottish Crown Estate Commissioner functions to Scottish Ministers. Reason The Smith Commission report confirmed agreement to transfer responsibility for the management of the Crown Estate to the Scottish Parliament. Clause 31 provides that a scheme may be made by the Treasury to transfer the Crown Estate to Scottish Ministers. There are two observations to be made: firstly the Treasury have discretion to make the transfer scheme and secondly that the transferee is the Scottish Ministers rather than the Scottish Parliament as envisaged by the Smith Commission report. On the first point the amendment removes discretion to make the scheme from the Treasury and makes it mandatory for the scheme to be made. This will bring the clause closer to conformity with the Smith Commission report. On the second point the Government should explain why the transferee in the bill is the Scottish Ministers rather than the Scottish Parliament. Clause 31 (5)(d) refers to the Scottish Parliament in the context of assuming the role of the UK Parliament under the Crown Estate Act 1961 but that consists of oversight and accountability roles rather than active management of the Crown Estate. 9 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 31, page 32, line 25 Leave out "C" and insert "A" Effect This amendment changes the type of procedure applicable to the statutory instrument which will establish the transfer scheme. Reason Type C procedure for the approval of statutory instruments under the Scotland Act 1998 requires the approval of both Houses of Parliament. Although the scheme will require the consent of Scottish Ministers -- new section 90B(13), the Scottish Parliament is not required to approve the scheme. Type A procedure requires the statutory instrument containing the scheme to obtain the approval of both Houses of Parliament and the Scottish Parliament. This is more reflective of the Smith Commission report and accordingly the amendment is necessary. 10 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 31, page 32, line 31 Leave out "then, instead of the type C procedure" Effect Paving amendment 11 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 31, page 32, line 31 Leave out "I" and insert "A" Effect This amendment changes the procedure for approval of a variation of the Scheme from Type I to Type A. Reason Clause 31(4) provides that for certain purposes Type I procedure should be used for amendments to the scheme. Type I procedure designates that a statutory instrument containing legislation is subject to annulment by either House of Parliament. Therefore changes to the scheme would not be subject to scrutiny by the Scottish Parliament. This amendment ensures that the Scottish Parliament would have a role in the passing of the legislation. 12 SCOTLAND BILL AMENDMENT TO BE MOVED IN COMMITTEE Clause 33, page 35, line 18 Leave out lines 18 and 19 Effect This amendment deletes employment tribunals or the employment appeal tribunal from the reservation provisions in new Paragraph 2A to Part 3 of Schedule 5 of the Scotland Act. Reason We welcome the inclusion of this clause which is directed at tribunals dealing with reserved matters in Scotland. We however have reservations about the drafting of Clause 33, believing it does not give effect to Paragraphs 63 and 64 of the Smith Commission Report. We believe that Clause 33 sets limitations on the transfer of responsibility for management of transferred tribunals.