Official Report 153KB pdf
The next item is scrutiny of the delegated powers in the Convention Rights (Compliance) (Scotland) Bill.
I am from the civil and criminal law group in the justice department. On my right is Jacqueline Conlan, who is on the bill team, and on my left is Stuart Foubister from the solicitor's office, who has a general interest in all the legal issues. Also on my left is Ian Allen, from the legal aid branch, who will be able to deal with legal aid issues that may arise.
I think that we are clear that remedial powers are important. Last week, we were generally satisfied that flexibility is required and that the circumstances are correct.
Niall Campbell, I am a little embarrassed because I have been over the ground before with you. I have reservations about remedial powers of such a sweeping nature being given to any Executive—I say that in case the current Executive thinks that I am worried about it in particular.
I would not say that the power is much more sweeping. I will ask Jacqueline Conlan to comment on the differences between the powers.
The power is different from the power in the Human Rights Act 1998, and reflects what is in section 107 of the Scotland Act 1998. Scottish ministers have restricted powers under section 10 of the Human Rights Act 1998, but only in a couple of circumstances.
Not everyone will know what section 107 is, so I want to dwell on that point. Section 107 allows the UK Parliament, by means of subordinate legislation, to do what it wants to any piece of our legislation on the basis that it considers it necessary or expedient because we are dealing with a matter beyond our powers. You say that you have modelled the new bill on that, but the English power to make changes to ensure compatibility with the ECHR is in section 10 of the Human Rights Act 1998. Why not model the bill on that equivalent power?
We already have section 10 powers in Scotland; they were devolved to us. The issue relates to the way in which human rights were incorporated in Scotland. As Niall Campbell said, Scottish ministers have no power to act incompatibly with the ECHR, but ministers of the Crown can do so, if authorised by legislation.
I understand that. In England, however, when an incompatibility is found—although not as drastic a problem as it is in Scotland, it has a political effect, if nothing else—or a finding from the European Court of Human Rights suggests to a minister that there will be a problem, the section 10 power can be used. However, the minister must be able to state that there are compelling reasons for proceeding under section 10 as opposed to introducing primary legislation. Why do not we have something similar in the bill?
That is a fair point. We will take that away and consider the matter with the minister.
The words that we have at the moment—"necessary or expedient"—were drawn from the Scotland Act 1998. When Scottish ministers introduce a proposed remedial order in the Parliament, they will be required to elaborate their reasons for introducing that order. It is not just a case of the provision being necessary or expedient.
Indeed. You have conceded that there must be a compelling reason for introducing such an order. At the moment, according to part 6, the only thing that Scottish ministers would have to justify is that something
That partly reflects the fact that the Scottish ministers may have to anticipate apparent problems in a way that is unnecessary in England and Wales. If a case was coming before the courts, that might have to be anticipated by changing the law, because Scotland does not have the period of grace to make changes that is available south of the border. That is the point at which we go beyond the UK ministers' position and reflect the different, Scottish situation.
Scottish ministers might need access to such a power if a court case was coming up and it was thought that the Parliament's legislation would be found incompatible with the ECHR, and therefore inoperable. That might have widespread implications. The wording of part 6 is intended to enable ministers to take action in such situations.
I am not unsympathetic to that. My difficulty—if I may bore you with it—is the phrase "may be". I find "may be" very woolly. It may snow in July; it is not very likely, but it may. The phrase "may be" is too open-ended.
Gordon Jackson is contrasting "may be" with "which is . . . incompatible". The latter phrase would identify the situation of a fairly clear court ruling.
I do not have a problem with that.
The difficulty is that we would expect human rights jurisprudence to progress on a UK basis. A finding down south that a specific piece of English legislation is incompatible would not be a clear finding that our equivalent legislation was incompatible. However, if that finding was by a High Court, say the House of Lords, clearly there would be incompatibility.
Saying that it is clear beyond doubt that the legislation would be incompatible is a statement of a seriously higher order than saying that it "may be".
That is taking things to extremes. In another example, if a Strasbourg case—not necessarily against the United Kingdom—pointed strongly in a specific direction, it might be difficult to say that our provision was incompatible beyond doubt. However, if the case pointed in that direction, ministers might want to take remedial steps.
Do not you recognise the legitimate worry that, although what you are saying is correct, the phrase "may be" is too open-ended? A minister could wake up one morning and say, "This legislation may be incompatible." I know that, to some extent, he would have to justify his decision; however, there would not need to be an urgent and compelling reason for it.
It is realistic to expect that challenges will not be made, given that the drift of the legislation will be towards a more liberal situation. There will not be challenges to the vires of what we are doing because we are implementing human rights legislation.
Colleagues of mine who belong to the same party as the man on my left—David Mundell—would disagree with that. Phil Gallie, of the Justice 1 Committee, would challenge legislation on the basis that he does not want liberalisation. It is a nice liberal thought, that liberalisation would mean that people would not want to challenge the legislation, but that is not true. That is what worries me about the phrase "may be". There must be a clearer definition of incompatibility. At least in the English legislation—and I know why it is like that—there has to have been a court finding so that you know the compelling reason. Here, the "may be" is such that it almost invites a challenge.
The problem is how one deals with the situation that I described earlier, in which the legislation would be struck down at once if the Parliament did not do something. We must find a way of dealing with the Scottish situation. The bill is an attempt to deal with a Scottish issue. The Scottish legislation is quite different from the English legislation because of our different situation under the Human Rights Act 1998.
No one has much of a problem with the legislation that is being struck down.
Yes, but there is no "may be" situation.
Part 6 may apply in situations in which nobody is thinking of striking the legislation down, but in which it enters someone's head that they want to change primary legislation.
But, as you said yourself, they would need good justification for doing so.
I do not think that what Gordon Jackson says is the case at all. The power is not intended to take the place of primary legislation; it is intended to be used in urgent circumstances or when subordinate legislation would be more appropriate. It does not mean that the Parliament will never again introduce a bill such as the one that you have before you.
Your faith is touching. Perhaps we should consider including "urgently compelling reasons" in part 6, to put in statute what Jacqueline has just said.
We have taken careful note of your suggestion. The Deputy First Minister will appear before the Justice 1 Committee in a fortnight, and we will report the discussion fully to him.
I am sorry that I have gone on at length.
If a whole load of legislation collapsed the minute a judgment was made in court, there could be a serious problem. Some foresight is needed. Although I share Gordon Jackson's worry about the phrasing in the bill, I cannot see how else that eventuality could be prevented.
How would big, bad Westminster cope with such a situation? The Parliament there would sit through the night if primary legislation was needed. The bill is trying to use subordinate legislation to get round that, but I would have thought that it would be quite serious if primary legislation was struck down.
A similar route, involving subordinate legislation, is open to Westminster. In fact, the procedure is copied from the one in the Human Rights Act 1998 which is available to Westminster. The introduction of emergency primary legislation is another route that has been used, but the remedial orders power is designed to avoid over-using that procedure or using it when it is not necessary. This would be a simpler procedure and one that the Parliament would have control over, as a remedial order would have to pass through the parliamentary process.
I understand the theory of that and subscribe to it, but in practice that procedure might not provide us with the safeguards that we are looking for.
I have always been conscious of the fact that, in drafting devolution legislation, we are planning for 20 years ahead. Furthermore, anything to do with devolution has to be planned bearing it in mind that the day may come—heaven forbid—when the Scottish Executive is politically different from the Government in London.
Six years ahead.
I worry that, if we amend legislation through the "may be" provision, rather than by introducing new primary legislation, the vires basis of introducing the statutory instrument could be deemed incompatible, although that might be a matter of opinion. Under section 107 of the Scotland Act 1998, Westminster legislation could strike the order down. If the amendment occurs through primary legislation on a subject that is within the Parliament's competence, however, Westminster could not do that. I am not talking about next year or the year after. Is that over-technical?
I take your point about vires and challenges. However, if we changed something in a direction that we thought was compatible with the human rights legislation, the likelihood is that Westminster would view that move as outwith the Parliament's competence. Westminster would have to take the view that what we are doing is incompatible with the convention. Westminster does not have to take a view as to whether we have satisfied the domestic vires.
I feel strongly about this. At some stage, there may be a Government at Westminster that has a much more right-wing agenda—to use loose political terms—that would not see much merit in bringing things into line with the ECHR unless it was forced to do so, whereas the Scottish Parliament might be keen to bring things into line.
The ability of Westminster to challenge us would exist only if we went outside our competence. That does not mean going outside the terms of section 12. The Government would have to attack what we were doing on the basis that it was incompatible with the ECHR.
Unless of course the Government claims that what the Executive is doing "may be" incompatible and is statable.
The Government has no locus to make such a challenge.
Why not?
Section 107 of the Scotland Act 1998 is about legislative or executive competence: that is, the functions that have been given to the Scottish Parliament or the Scottish ministers by the devolution settlement, rather than by the bill. Section 107 is not usable to allege that we have gone outwith the bounds of section 12 of the bill, because that is not a question of our competence, as that term is used in the Scotland Act 1998.
I follow.
If there are no other questions, I thank the witnesses for attending and for clarifying many of the points that were raised.
We have taken careful note of what you said.
I do not know what report we will make on the bill. How satisfied were you by what we heard, Gordon?
I am sorry to go on about this. My reservations are clear. What seems possible is that the Executive will tighten the bill up a bit. The Executive is taking on board some of the concerns, which are quite legitimate and are more than just nit-picking by a lawyer. My impression is—although I have no reason for it other than what has just been said—that the Executive agrees that it will have to be a bit tighter. I would be encouraged if the Executive included the phrase "for urgent and compelling reasons", rather than referring to legislation that "may be" incompatible.
Should we welcome the Executive's reconsideration and recommend that the terminology be tightened up?
It is obvious that that is what I think.
I agree. I was surprised by how political, rather than legal, the witnesses' judgments were. They seemed to make political suppositions that the present liberal climate would continue. You do not frame law on that basis.
That relates to Gordon Jackson's point about the law being made for the bad Executive as well as the good.
I agree that the law must be made for the longer term and that there were too many assumptions in the Executive's rationale, some of which Gordon Jackson highlighted. We would be failing in our duty if we did not highlight a potential difficulty. It is appropriate that these issues be put to Jim Wallace when he appears before the lead committee.
If a statement is included to the effect that the minister must have urgent and compelling reasons to use the procedure, it will be clear that it is not a procedure that is to be used when one could just as easily introduce primary legislation. That would solve the problem. Jacqueline Conlan said that the Executive would never misuse the procedure, but if such a statement were included, it could not.
We will report to the lead committee in those terms.
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