Official Report 466KB pdf
Agenda item 2 is the constitutional and equalities provisions in the Scotland Bill. With the bill now reaching its final stages in the House of Commons, we will take evidence from two panels of witnesses today with a view to making a submission to the United Kingdom Government on where we still believe the bill needs to be improved.
The first of the panels is with us now. We will take evidence from the panel on constitutional and equalities provisions and, if we have time, we will move into wider areas, because committee members wish to ask further questions on the evidence that panel members have provided.
I also welcome to the committee today Christine O’Neill, our adviser. The first panellists are Michael Clancy OBE, who is the director of law reform at the Law Society of Scotland; Neil Walker, who is a professor of public law at the University of Edinburgh; Talat Yaqoob, who is the chair of Women 50:50; and Emma Ritch, who is the executive director of Engender Scotland.
I will open with a very general question, folks, just to get a feel for where we are. What is your overall assessment of the Scotland Bill? Are there areas that could be improved? Does it deliver entirely on the Smith commission proposals? If there are major shortcomings, what are they?
Who wants to kick that one off?
There is nothing good in it at all.
There is good stuff in it. Does Michael Clancy want to kick off?
Sure, convener. Thank you very much and good morning.
The question I would ask is: how long have you got?
We have an hour, but I am not asking you to take an hour—take as short a time as you can.
Let us reflect on where we were almost a year ago today, when we were in the throes of the pre-referendum rush. A series of events took place immediately after the referendum, starting with the Prime Minister’s statement on 19 September and leading swiftly to the Smith commission, which, as members know, had a very truncated time in which to analyse what further powers should be devolved to the Parliament. In that context, as members know, the business of formulating the Smith agreement with Lord Smith and the political interlocutors was, at times, a tested and testing process that was conducted under extreme time pressure. When Lord Smith reported, that resulted in the draft clauses that the Government published in—I think—January.
The upshot is that we have a Scotland Bill that has a lineage that goes back to immediately after the referendum and which was written in the context of the referendum and the desire of the political parties to come to an agreement to fulfil the so-called vow.
The convener asked how the bill relates to the Smith commission. Many people have different views on that. In many respects, the analyses that have been done by the Scottish Parliament information centre and the House of Commons library show that there are some parts that immediately and completely transfer the Smith recommendations, some parts in which the extent to which that happens is open to interpretation and other parts in which there is not a complete transfer. There are also parts that are new.
I will not go into a detailed analysis, because members have all seen and know the bill. One has to pay some respect to the Scottish Parliament information centre for having produced its analysis.
It would be helpful to hear the Law Society’s view of the major areas that still require to be addressed in order to ensure that the Smith commission’s proposals are met. It would be useful to get your views on the record.
We have produced a memorandum of comments on the bill: you have seen all 16 pages of it. We have participated fully in the process in the House of Commons. We briefed MPs at the second reading and submitted amendments, which some MPs were moved to table and which were debated. We will continue with that approach when the bill reaches report stage. The amendments were designed to cover areas where we thought there were deficiencies in the bill or where the bill could be improved. I will just canter through them.
We focused on clauses 1 and 2.
You can just give me the main areas.
Okay. Clause 1(1) says:
“A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.”
We focused on the phrase “recognised as”, and we focused on the same phrase in clause 1(2), which says:
“A Scottish Government is recognised as a permanent part of the United Kingdom’s constitutional arrangements.”
In clause 2, we focused on the word “normally” and sought its removal. We also promoted amendments to clause 2 that were designed to elaborate the clause by including aspects of the Sewel convention that were not referred to by Lord Sewel in the debate in 1998. Those form the content of “Devolution Guidance Note 10”.
We also considered clause 10, and the provisions regarding super-majority. As we move towards the report stage, we will be seeking an amendment to the matters that will be included in the super-majority provisions by having the term of the Parliament included in that.
On clause 31, which concerns the Crown Estate, we considered that Lord Smith’s report, which said that the Crown Estate should be devolved to the Scottish Parliament, was not being enacted in the way in which he and the political interlocutors had in mind. I think that that was because there was some sort of idea that the Parliament has some kind of Executive powers. Although that is not the case, the provisions about the Treasury having discretion with regard to the making of a scheme struck us as not being fully in tune with Lord Smith’s report, so we will seek to make that mandatory, following agreement with the Scottish Government.
That probably gives us enough of the flavour of your approach.
Lastly, we said something about the provisions on fixed-odd betting terminals.
Stuart McMillan will want to ask about that later, if we have the time.
You are telling us that some areas of the bill need to be improved to match up to Smith—I think that that is a summation of what you have said.
That is our view. Some of the areas are quite technical. Other people will have other views that are more in tune with their political persuasions, but—as you know—I am not a politician.
Indeed. Would somebody else like to respond?
I would like to go back to the original question, which was about our overall impression of the Scotland Bill and its implementation of Smith.
There are two problems. First, there is a sense in which Smith was always damned if it did and damned if it did not. If you reform the constitution through the Daily Record, you are always going to be in trouble. There is a sense in which Smith, like the vow, was always stuck with the dilemma of quick responsiveness versus serious consideration of the issues, which is an impossible balance to strike—although I am not saying that there are not areas that can be improved. The problem is exacerbated by the fact that we are on moving terrain. Since Smith, we have had an election, a new mandate and calls for new powers, and it is difficult to keep that new mandate and new agenda separate from the initial Smith agenda. Smith is operating in difficult territory.
Having said that, I agree that there are areas of Smith—particularly on constitutional questions, which I am happy to refer to in more detail—where improvements could have been made and of which it seems there has not been full implementation, through the Scotland Bill, of the spirit and the letter of Smith.
We will come on to permanency and the legislative consent memorandum convention in questioning.
I echo the concerns that colleagues have raised about the rushed process of the Smith commission itself and the rushed legislative process, which has not involved civil society to the extent that the conversation that took place before the Smith commission process did.
Our specific concerns are about social security and equalities, which Talat Yaqoob and I are uniquely positioned to talk about in your two evidence sessions today. In Engender’s submission to the Smith commission and in our evidence to the commission we made the point—which was echoed by many equalities organisations—that there is a case for devolving equalities wholesale to Scotland. Equalities interrelate with many issues that are within the Scottish Parliament’s competence, and there is a degree of awkwardness in the separation of concerns and the reservation to Westminster. Smith did not get to the devolution of equalities wholesale, although we continue to call for that as the most sensible solution to the problems regarding equalities.
It is alleged that clause 32 of the bill will devolve to the Scottish Parliament the power to create gender quotas on public sector boards. The Smith commission said that the power would be transferred but that it would not be limited to that specific power, and we took that to mean that there would be provision for allowing the Scottish Parliament to create temporary special measures—time-limited, almost positive-discrimination measures—that would enable the Scottish Parliament to act in a number of domains. For instance, that might include a time-limited quota for modern apprenticeships in order to enable women, disabled people and black and minority ethnic people to be specially appointed to those apprenticeships. We thought that a provision would be created to enable the Scottish Parliament to decide when it would be useful, in the specifically Scottish context, to do that.
09:15Having consulted the Equality and Human Rights Commission, which has given evidence to the committee, having spoken with lawyers specialising in equalities and with people in the UK Government Equalities Office, and having attended discussions with the Scotland Office, it is our understanding that clause 32 does not contain the minimum requirement that would enable the Scottish Parliament to introduce gender quotas, so we are calling for that clause to be completely redrafted to enable that to happen. We should also go beyond gender quotas and deal with things that are not limited to some subclause of the Smith commission agreement, by enabling the Scottish Parliament to have additional powers to decide when, in its opinion, temporary special measures should be introduced.
I echo what Emma Ritch has said. Women 50:50 is a single-issue campaign, so we are here specifically to discuss gender quotas. We, too, got legal advice, and we worked with Engender. Contradictory advice was given to us as to what exactly clause 32 means and on whether we could implement quotas. That is problematic. The provisions need to be clear and distinct on what Scotland can and cannot do.
We are calling for clause 32 to be rewritten, and for it to include what was originally in the Smith commission report about gender quotas on public boards, but not limited to some only. We believe that Scotland should have the ability to legislate for quotas, including those for 50 per cent of women in elections to the Scottish Parliament, public boards and local authorities.
The main thing that we are calling for is clarity, and for the provisions to echo what the Smith agreement originally said. They should allow Scotland to go further. We are not talking about a requirement for Scotland, but about devolving the ability even to have this debate in Scotland and to implement the measures if the Scottish Parliament votes to do so. I repeat that the most significant thing for us is to have clarity on the issue.
That was very helpful. Thank you, folks. We will start off by discussing permanency—Stewart Maxwell will begin on that.
I begin by quoting from the evidence from the Law Society of Scotland and from Professor Walker. The Law Society’s evidence states:
“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’. The difference in wording between the Smith Report and the clause is significant.”
Professor Walker has written in a similar vein and goes on to say that a
“durable character ... if not ... permanence, could be achieved by the requirement for its abolition of a super-majority at Westminster, or of the consent of both ... Parliaments, or, as the present Committee itself suggested, of a majority of the Scottish electorate voting in a referendum”.
I will start with Michael Clancy. Could you expand on comments in your written evidence, in particular on the point that
“The difference in wording between the Smith Report and the clause is significant”?
Keep your answers as short as you can, guys. Having read the papers, I realise that there is a lot of background and case history that could come out in this discussion, but it would be very helpful if we could just cut straight to the chase.
It is different because it is different. It is different because if we say that something “is a permanent institution”, that is different from its being
“recognised as a permanent institution”.
I would ask, “Recognised by whom?” What is that distance, to which Professor Walker refers in his paper, meant to represent? It seems to put the matter at arm’s length, whereas a statement that something is permanent has a different ring about it.
We can talk shortly about what it means to be permanent within the context of the current constitutional understanding of what the United Kingdom Parliament can and cannot do, and that is fair enough, but if there is meant to be a symbolic statement in the form of a legislative phrase, let us think about symbolism.
“‘There shall be a Scotland Parliament.’ I like that.”
We frequently hear that quote from Donald Dewar, from the days when he was debating the previous Scotland Bill in 1998. “A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements. I like that” does not have the same symbolic ring to it. Perhaps “A Scottish Parliament is a permanent part of the United Kingdom’s constitutional arrangements” would have more of a symbolic ring to it. I think this is the question: why did Smith agree to propose that? If the answer is that it is a symbolic statement that is meant to signal a political frame of mind, we should be as direct and to the point about it as we possibly can.
Professor Walker has given possible examples of how to beef up the way of describing this—I am trying to avoid the word “permanence”, in a sense—that would strengthen the symbolism of the statement that the Scottish Parliament and the Scottish Government are permanent in the UK constitution. Can you expand on those examples and on your view of the various options?
I will start by differing slightly from what Michael Clancy said. The problem is, if we go back to what Donald Dewar said and what the Scotland Act 1998 said, there is nothing in saying
“There shall be a Scottish Parliament”
that in any way contradicts our ideas of parliamentary sovereignty. It is a performative statement: the phrase
“There shall be a Scottish Parliament”
does not talk about permanence. It has a ring to it; everyone understands what that ring is. It is very important.
To talk about permanence is different because then you are going full-scale against our understanding of the constitutional theory. I assume that that is why the word “recognition” has been introduced, in acknowledgement of the fact that it does not matter how ringing the declaration is if what you are saying is contradictory to the deepest premises of the constitution. It still will not work. If you use the term “recognition”, you are showing that you cannot do the impossible.
That brings me on to the second part of the question. If you cannot do the impossible, what is possible? What can you do? Clearly a range of things can be done. We can extend our super-majority provisions, which we find elsewhere in the bill, especially vis-à-vis questions of devolution of the authority to run the Scottish political system—the electoral system and so on. We can imagine the super-majority provision, perhaps independently of or in some way linked to, a provision about another referendum. That is another possibility. We can certainly imagine a requirement that you would have to have the consent of both the UK Parliament and the Scottish Parliament. All those things could be effective.
Even though we have a tradition of parliamentary sovereignty that says that we cannot entirely bind any future Parliament to the provisions of an earlier Parliament, we have another constitutional rule that says that we can amend and adapt the manner and form in which a later Parliament can change the law. If you want to introduce provision on a referendum or a super-majority, there is at least some indication in our constitutional theory that that would be taken seriously.
I want to follow up on that a little bit. I accept absolutely that we cannot bind future Parliaments; there is no argument about that. However, it seems to me that changes to the bill such as using the phrase that was suggested in the Law Society submission, that
“the Scottish Parliament and Scottish Government are permanent institutions”
or using a similar phrase, removing the word “recognised”, introducing a super-majority and so on—while it is still symbolic, in some senses—would, in effect, make it exceptionally difficult for any future UK Parliament to go against those aspects of the bill if it was enacted. Do you agree?
If the procedural rules that I mentioned were to be introduced, that would make it more difficult. I am not sure that the removal of the words “is recognised by” would make a great deal of difference. In both cases, it is a fairly ringing declaration and in both cases, it is purely symbolic and expressive. I do not think that that is the key point; the key point is the type of procedural—
—the kind of hurdles that we would have to cross.
Yes.
I think that Duncan McNeil has a question.
Michael Clancy wants to respond.
Mr Maxwell used the phrase “exceptionally difficult”. I do not think that anything can be made exceptionally difficult when dealing with the principle or theory of parliamentary sovereignty in that sense, because a Government with a majority in the United Kingdom Parliament can always change the law.
I understand what Professor Walker said about the procedural rules. As I showed in my submission, the Northern Ireland Act 1998 has provisions about a poll for the purposes of changing Northern Ireland’s status. Later editions of Dicey’s “Introduction to the Study of the Law of the Constitution” show that his thinking about permanency changed subtly between 1885 and 1914—I am indebted to Professor David Edward for this—because of the way in which Parliament was changed by virtue of the Parliament Act 1911 and the Government of Ireland Act 1914.
In his introduction to a later edition, Dicey thought that the brake on parliamentary tyranny would be a referendum. That fits with the procedural arrangements under which people would seek to ensure that the United Kingdom Parliament could not change the law without having to climb over some kind of hurdle.
I call Duncan McNeil.
Can I come in?
Let Duncan ask his question first.
I do not know whether context is important here; the whole point is that we want to bring about a durable constitutional settlement. Where there is a will, there is a way, but I do not know whether this is the way.
We read in the submissions that no Parliament can bind another Parliament. There is a question of durability or whether the settlement would need to be revisited regularly. In that context, would it be a better way forward to use all the other mechanisms that we can use so that there is a clear declaration, which might be symbolic but might mean that there is recognition from both Governments of the new settlement’s durability and that there is trust?
I know that that is difficult when the Governments do not share the same views on devolution. I do not know whether we are dealing with a legal point, but the context is that we need to build in an element of agreement about a constitutional settlement for the short, medium or longer term. We could proceed on the proposed basis. We do not need to solve the legal conundrum of permanency. Is that what Professor Walker is saying?
I agree. Any legislation has an audience. One audience is the judges, so how would they interpret it? Another audience is made up of politicians and the public. People talk about our constitution being a political constitution; all that that means is that the constitution gets its resonance from its being a fundamentally political statement to a political audience. In that respect, the expressive aspect is important.
I have one very obvious point to make about permanence that has not really come up. Permanence is a double-edged sword. If I were a nationalist, I would be somewhat concerned about the concept of permanence, because it means more than that there can be no drawing back. It might also imply that that is the end of the constitutional story or journey.
People in this room have very different conceptions of permanence. Some might want to go back, some might want to stand still and some might want to go forward. Permanence has different meanings to different audiences.
09:30
I have a final comment on the subject. At the end of the day, politicians at Holyrood and Westminster can decide how they frame the final legislation, and I hope that we can finally pass a legislative consent motion. However, those who really matter are the people of Scotland, and the widely held view in Scotland is that it is the people’s view that is sovereign, not the Parliament’s. It would be extraordinary if we had a bill enacted that did not give the people the choice about whether our Parliament exists. Regardless of all the other issues, that is the kernel.
I think that that is generally accepted.
Does Michael Clancy agree?
I think so. Another thing about audiences is that, if the audience is the judiciary and we get to the point of litigation on the constitutional question, it will be dissipated in the general morass of a constitutional crisis.
I was going to go on to the Sewel and LCM process next, but instead I will go on to equalities, because we have done a fair bit on the constitution, we have written evidence on it and I am conscious of the time. I ask Alison Johnstone to kick off on the equalities issues.
I will address my questions to Emma Ritch and Talat Yaqoob. I thank you both for being here, and I put it on the record that I am a member of the Women 50:50 group. You both call for the redrafting of clause 32 of the Scotland Bill. Emma Ritch noted in her submission that Engender has had discussions with experts on equalities law but that they have not produced a clear answer. Clarity on the issue is required—Talat Yaqoob made that point clearly in her introduction.
Although I have seen it time and again, I am still astonished by the figure in Engender’s evidence that 85 per cent of the £26 billion of cuts have impacted on women. In that context, it is terribly important that we see better gender representation. Will you expand on your concerns about the impact of not getting clause 32 right?
To speak specifically about women’s representation, if we were not to get clause 32 right, it would become a political debate that would have to happen again and again. We need the ability to implement quotas to be devolved to Scotland so that we can get political representation right and decision making for women right as well.
On page 6 of his letter, David Mundell said:
“The clause provides a framework within which the Scottish Parliament can introduce additional equal opportunities measures, including gender quotas.”
That goes beyond the Smith agreement to say that this is not just about public boards. On my first reading of that sentence, I read it as saying that the matter will be fully devolved and that we will be able to legislate for quotas in the Scottish Parliament, in local councils and on public boards. That is fantastic, as far as our campaign is concerned.
However, the problem is whether the issue will become political if clause 32 remains unclear by the time we get to the voting on the Scotland Bill. The clause needs to be specific and to include what is devolved so that we can get political representation right for women.
From where I sit, the Smith commission, the recent letter from the Secretary of State for Scotland and the Scotland Bill are giving us three different levels of devolution on gender quotas. That is unhelpful for women’s political representation in Scotland.
But the secretary of state’s suggestion seems positive.
Absolutely. We have welcomed it, but it is important that it translates into what appears in the Scotland Bill, because all that we currently have is a welcome statement in a letter. We also welcomed the Smith commission’s view on gender quotas for public boards, but that was not translated into the Scotland Bill. We therefore cannot afford for clause 32 to be unclear.
What I read in the secretary of state’s letter is that there will be absolute devolution of gender quotas. How and where that is implemented is for the Scottish Parliament to define, and that is what we are calling for. The issue is the translation of what is in David Mundell’s letter into the Scotland Bill, which needs to be as clear as day, as far as the campaign is concerned.
I agree. Because of how equality law works, the framing of clause 32 does not seem to us, to the experts we have consulted or to the Equality and Human Rights Commission to provide for what Mr Mundell’s letter and the language of the Smith commission agreement contain.
It is entirely right to link women’s representation to the economic situation in which women find themselves as a result of decision making that does not take a gendered approach. Moreover, as a member of the Women 50:50 group, we echo the group’s concerns. Women’s representation has never been about jobs for the girls; it is about different decision making that includes an understanding of women’s particular life experiences.
We are concerned that our equality provisions more broadly depend entirely on Westminster. Scotland has a public sector equality duty that requires Scottish public bodies to take an equalities approach in developing policy and considering the large issues of the day, but that provision is much weaker at Westminster Government level and was weakened further after the Fawcett Society sought a judicial review of the 2010 emergency budget. Basically, the UK Government decided to stop carrying out equality impact assessments to ensure that it could not be challenged. We are concerned that, without clear and substantive devolution of equalities, whether we are talking about temporary special measures or the narrower issue of quotas, we will be dependent on a law that seems to be unclear and whose effect is, as it were, increasingly being reduced.
The Engender submission highlights the fact that 60 per cent of carers are women and that the withdrawal of discretionary housing payments is having a massive impact. You obviously feel quite strongly that, if we do not address the gender quota issue, it will take even longer to change the situation and get things right.
Absolutely. In our briefings, we make a number of specific recommendations on the social security measures. We are concerned about what seems to be the Scotland Bill’s general approach of constraining as much as possible the Scottish Parliament’s decision-making powers. For example, its definition of disability is different from that in the Equality Act 2010, and it defines a carer in a narrow way that depends on a specific kind of benefit that Westminster determines. It also prevents the Scottish Parliament from awarding benefits to those who have been sanctioned. Recent press coverage of the quality of decision making on sanctions by jobcentres increasingly makes that a concern. We have therefore called for a number of specific amendments to the clauses that cover social security and are also concerned broadly about the clarity of the equalities clause.
I will ask about the point that has been made on part 1 of the Equality Act 2010, which relates to socioeconomic inequalities. Do you have a route map that goes from the means of avoiding socioeconomic disadvantage to ensuring that clause 32 is much better when the bill is finally approved? Does that concept provide the best way of dealing with what you called the awkwardness of the phrase “not ... limited to” in the Smith commission report?
In our view, the socioeconomic duty is separate from everything else. We are not concerned about that element, which simply activates a clause in the Equality Act 2010 that had previously lain dormant and which anti-poverty campaigners in Scotland were quite keen to see form part of the bill.
If that is the case, how do we deal with the fact that the Scottish Parliament will remain disabled from enacting any legislation that contains provisions that impose a requirement that is prohibited by the Equality Act 2006 or the Equality Act 2010?
That is the nub of the question. The way in which equality law works is that you have to have not only the power to do the positive thing that you want to do but, if there is a measure of discrimination that is proscribed by the equality acts—by their nature, that applies to temporary special measures such as gender quotas—you also have to have the power not to be bound by the acts. That is the crux of the issue, which is not adequately dealt with in clause 32. I am not sure that I am exactly qualified to give you the road map that you asked for, but tearing this up and starting again seems to us to be the most sensible way forward.
That sounds pretty good to me. I do not know whether Talat Yaqoob wishes to comment.
We have had this discussion, as Emma Ritch said—she is on our steering group as well. Currently, political parties have the ability to put in voluntary, temporary special measures until 2030. That exception came from the Equality Act 2010 from Westminster. However, we can take a step forward only if there is a specific special measure and, as Emma Ritch said, only if another special measure is taken at Westminster. We could be at a point where the Scotland Bill does not include a provision and we have to request a special measure again in a year’s time. It needs to be clear that, if Scotland wants to go to the level of special measures or quotas—as it should do to fairly represent women—it should have the ability to do so, and that decision should be made in the Scottish Parliament.
For the record, is it your advice to us that the Equality Act 2010 prohibits quotas?
Yes—it does.
In effect, we are being given a power that we cannot use.
I do not think that we are even being given a power—that is my understanding.
I asked about that just so that we have clarity.
I was encouraged by the letter from David Mundell that Talat Yaqoob mentioned. In fact, I was happy to retweet her tweet this morning that drew attention to it. I wonder whether he just does not understand the wording of his own bill. We go back to the question why the phrase
“except to the extent that provision is made by the Equality Act 2006 or the Equality Act 2010”
was proposed in the first place. I suppose that the other issue is whether omitting those words would deal with part of the problem but not give all that is required. Is that the view of both of you?
We were pleased about the letter, but you are quite right. It is perhaps not just David Mundell who does not understand the wording, but legal experts. That brings us back to the fact that the bill needs to be explicit and clear.
The letter says that there are measures that would allow us to introduce gender quotas while the Equality Act 2010 remains reserved. That can happen and it is what happens currently with temporary special measures to allow political parties to implement voluntary quotas. However, that is a specific special measure. What needs to be added is a specific statement that Scotland can implement the measure and that it does not contravene the Equality Act 2006 or the Equality Act 2010.
I seek a bit of clarity and the Law Society’s view on this, because I think that the paper mentions a debate rather than—
That is where I was going.
I wanted to hear Emma Ritch’s view as well.
I entirely agree with Talat Yaqoob.
Okay.
It is good to have people with legal expertise here. Does Neil Walker want to come in?
I will make a general comment to link this discussion with part of our earlier discussion. The detail of what we are talking about is massively important, and it is also important that it is linked into a broader philosophy of what we mean by self-government under the new Scotland Bill. For example, the provisions on the devolution of powers to specify the terms of Parliament and the age of electors et cetera are all part of what I see as an agenda of political self-government. They say that part of our constitutional autonomy now is that we decide on our own system of government. It is arguable that that includes a lot of the stuff on gender. If we decide on our own system of government, it is important that we decide on questions such as gender quotas in public bodies and political parties. That fits neatly and well within an agenda of political self-government.
We then move to an agenda of economic self-government, which is a different and much more contentious agenda that goes beyond the Smith provisions. Included in that is a much broader menu of issues about equality, which includes some of the questions that have been raised this morning.
I am making the point that there is a minimal interpretation of what is meant, which fits easily within an idea of political self-government, and a broader interpretation—which I agree with, by the way—that is part of a much broader agenda of what we might mean. I am not sure what David Mundell meant by his letter and I suspect that he does not know either, but it is somewhere between those two possibilities.
09:45
I do not have a particular view on the correspondence on the bill between Mr Mundell and the convener, but I will take the matter back to our equalities law committee so that it can add its view to the opinions that have been expressed this morning.
That would be helpful.
As they are in the same area, we will move on to issues that are to do with disabilities, which have begun to emerge in the answers.
I note from Engender’s submission that there is concern about clause 19 and the narrow definitions of “disability” and “carer”. My question is specifically for Emma Ritch, but other witnesses might want to comment, too. You are particularly concerned about the impact on women, because they provide care for loved ones to a disproportionate extent. Could you put your concerns on the record? What alternative approach could be adopted that would give you some comfort?
I will summarise what we are asking for. We want the Scottish Parliament to be able to determine its own definitions of “disability” and “carer” and we do not want them to be restricted in the way that the definitions in the bill are. We are particularly concerned about the definition of “carer”, whereby carers who are in work in the formal labour market would be denied carer’s benefit. The experience of many women who care, and of some men who care, is that they have to juggle paid work and care. Therefore, given the consequences for them—they might suffer ill health or poverty and their ability to participate in civil society and to progress in their chosen profession or employment might be affected—it is completely nonsensical to deny them support that the Scottish Parliament might determine to be appropriate.
I do not know whether anyone else has a view on clause 19.
On the carer’s benefit, clause 19 says:
“‘disabled person’ means a person to whom a disability benefit is normally payable.”
A decision might be taken at Westminster to end the provision of a particular disability benefit. Would that have the knock-on effect that those who had previously received the carer’s benefit might lose that benefit as a result of a decision that was not taken by the Scottish Parliament, which, to all intents and purposes, is supposed to have power over the carer’s benefit?
Exactly.
So you want that provision to be removed or a provision to be inserted that explicitly gives the Scottish Parliament the flexibility to determine how it defines “carer” and “disability” in relation to the provision of benefits.
Exactly.
Does anyone have a different view? I see that all the witnesses are of the same view.
I want to move on to other areas of welfare, particularly top-ups, which Stewart Maxwell wants to ask about, but there are two areas that we need to cover first, one of which is the constitutional position surrounding LCMs.
I hope to be quick. Excuse me for having left the room, but I could not see you before. I can now, and you all look lovely.
I want to ask about legislative consent motions. I know that there is a lot of legal discussion about the insertion in the bill of the word “normally”, but there is another issue that I picked up from Michael Clancy’s submission—I had not come across it before. I would like you to expand on your use of the word “significant” in relation to “Devolution Guidance Note 10”. The bill says that the Westminster Parliament will not normally legislate without the consent of the Scottish Parliament. You say:
“It is significant that DGN10 also requires the consent of the Scottish Parliament in respect of provisions of a Bill ... which would alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers”.
You observe that
“Clause 2 would not apply to this latter category of provision.”
Is that omission concerning? What effect could that have? Why do you consider it to be significant?
It is concerning. Our constitutional law committee looked at the issue. It thought that that was an omission from the bill. As I say in our submission, “Devolution Guidance Note 10” requires
“the consent of the Scottish Parliament in respect of provisions of a Bill”
that affects either
“the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers”.
That applies to this bill, and it applied to the Scotland Bill that was considered in 2011, to which, you will remember, the Scottish Parliament was required to give its consent. That process is part of the process that is set out in “Devolution Guidance Note 2”.
If we do not have a provision that extends clause 2 to require the Parliament’s consent for those purposes, it would be theoretically possible for the United Kingdom Parliament to enact legislation for Scotland without the Scottish Parliament’s consent. It can do that anyway under section 28 of the Scotland Act 1998; indeed, the UK Parliament can always legislate for Scotland.
The Sewel convention was brought into the bill in order to deal with parliamentary sovereignty—the primacy of the UK Parliament. We need to have in the bill the second leg of Sewel, which has developed subsequent to the Scotland Act 1998 and the debates in Parliament that brought in Lord Sewel’s comment, to ensure that the fullness of respect between the UK and Scottish Parliaments is made clear.
When we talk about “normally” here, it is important to note that the wording in clause 2 is exactly what Lord Sewel said in the debate in July 1998—I was there when he said it. We have proposed an amendment, which I hope will be tabled and debated, to remove the word “normally” from the clause. The principal aim of that is to probe what “normally” is supposed to mean. Perhaps when debating the matter the minister will be able to elaborate on what an abnormal situation would be. When would a matter be so abnormal that the United Kingdom Parliament would legislate without the Scottish Parliament’s consent? That is where we sit on the matter.
Does that tie in directly with what is in “Devolution Guidance Note 10” but has been left out of the clause?
One would expect that “Devolution Guidance Note 10” would continue to apply. That would be the normal understanding. However, in a sense, if one part of the Sewel convention is included but another part is not, that would be an example of the canon of interpretation that says “inclusio unius exclusio alterius”—if one thing is included, another is excluded. We must make it clear: either “Devolution Guidance Note 10” will continue to apply or the matter will be put in the bill.
I think that “Devolution Guidance Note 10” has to continue to apply, because it specifies a convention that applies regardless of what the law says. If we are to reduce conventions to law, it would certainly help if we did so fully and not just partly.
The problem here is that, if anything, the second limb of Sewel—the one about Westminster unilaterally varying powers, which is not mentioned—is even more significant than the first limb. It says that the UK Parliament is still in charge of the terms of the Scotland Act 1998.
I suspect that the reason why the second limb was not initially included is that, if there was qualification with the word “normally”, that would be political dynamite. It would mean that, in some circumstances, the UK Parliament and the UK Government retain the right unilaterally to vary the terms of the Scotland Act 1998. That is a very profound political statement to make. The concern is that that is not included because, if it were included, it would have to be included within the terms of the “normally” qualification.
Right. So you do not think that it is just an inadvertent slip.
I do not think that it is an inadvertent slip. I think that it was done precisely because including it would make it transparent that that aspect of the convention was subject to the “normally” qualification. I do not think that it is inadvertent.
Stuart McMillan will pick up on a final issue to do with fixed-odds betting terminals, on which the Law Society of Scotland has given some evidence.
The Law Society of Scotland’s submission is quite clear about the situation regarding clause 45 and fixed-odds betting terminals. It indicates that, if the clause were agreed to, in Scotland there could be two different sets of legislation in place for betting shops and fixed-odds betting terminals. A question came to me about that. If that were to happen and further down the line a UK Government decided to change the law to reduce the stake from £100 to less than £10, how would that affect the provision as it is drafted? How would that affect any potential opportunity for a Government here to deal with the situation?
Thank you very much for a very interesting question.
Clause 45(6) says:
“The amendments made by this section do not apply in relation to a betting premises licence issued before this section comes into force.”
Therefore, the devolution of the power to the Scottish Parliament does not apply to the previous arrangements. That is the situation that you have sketched out. We would have two sets of law coming from two legislatures applying to the same kind of machine in a betting shop or other premises. The scenario that you have painted of a change in the law at the UK level would mean that some machines would have a different level of stake from others. A change of law at the Scottish level would mean exactly the same thing.
We said in a paper that we gave to the Local Government and Regeneration Committee in response to its call for evidence on those machines—that paper went in after I submitted my paper to this committee—that there should be a closer relationship between the clause and the existing regulations for the licensing of those machines: the Categories of Gaming Machine Regulations 2007 and the Gaming Machine (Circumstances of Use) (Amendment) Regulations 2015. The bill should clearly state the relationship between the content of those regulations and the bill’s provisions, and clause 45(6) should be deleted because it is appropriate for the Scottish Parliament to have the power to regulate all the machines in such premises rather than there being potential confusion about which law applies to which set of machines.
Okay. That is quite clear.
I am sorry, folks, but because of the time we will have to move on. I have some evidence on FOBTs on the record now, which is helpful.
I thank our witnesses for coming along and giving us some very useful evidence. I suspend the meeting to allow a changeover of witnesses.
09:59 Meeting suspended.