UK Parliament Legislation
With my light properly off, I would like to make a statement on future legislation by the Westminster Parliament about matters that are within the legislative competence of this Parliament.
Following devolution, the Westminster Parliament will retain its competence to legislate about all matters. That will include matters that are within the legislative competence of the Scottish Parliament. In a devolved system, it could not be otherwise.
However, the United Kingdom Government has made it clear that it expects a convention to be established whereby Westminster would not usually legislate on devolved matters in Scotland without the consent of the Scottish Parliament. Lord Sewel made that clear on 21 July last year during consideration of the Scotland Bill by the House of Lords. In a memorandum of evidence to the House of Commons Procedure Committee last November, the President of the Council indicated that the Government expected the convention to be adopted for all public bills.
In addition, the Scottish Executive expects that the UK Government will oppose any private member's bill that seeks to alter the law on devolved subjects unless it is clear that the proposal has the support of the relevant devolved body. That is also the position of the UK Government. In its report on the procedural consequences of devolution, published on 24 May, the Procedure Committee stated that it supported the principles behind Mrs Beckett's statement and agreed that the House should not legislate without the consent of the devolved legislature concerned.
Members may find it helpful if I explain how we envisage that the process of seeking consent will work in practice. Where the Scottish Executive and the United Kingdom Government agree that a policy in a devolved area should be given effect by an act of the Westminster Parliament, it would be for the Scottish ministers to put the proposal to the Scottish Parliament, and for the UK Government to manage its business at Westminster in a way that is consistent with the convention.
The usual rule will be that legislation about devolved subjects in Scotland will be enacted by the Scottish Parliament. From time to time, however, it may be appropriate for a Westminster act to include provisions about such matters. That might be the case, for example, where the two Administrations agree that there should be one regime of regulation with application on a UK-wide or GB-wide basis.
An example of when we expect to introduce such a measure is that of the proposed bill to establish a food standards agency to operate on a UK-wide basis. Earlier this year, the UK Government published a draft bill that made it clear that the Scottish Parliament's consent would be sought for that proposal. I do not want to be taken on to the specifics of that case today, but let me make it clear that the Parliament will have the opportunity to debate fully that and other relevant issues at the appropriate time. Indeed, I expect that the issue will be debated before the summer break.
A small number of additional measures may also be introduced at Westminster during this session, dealing essentially with reserved areas but with some impact in devolved areas. The Sexual Offences (Amendment) Bill is a UK measure designed to equalise the age of consent for homosexuals and heterosexuals, and to introduce a new offence of abuse of trust. It was introduced to the Westminster Parliament in December last year and defeated in the House of Lords in April this year. The UK Government is likely to reintroduce the bill, making use of the Parliament Acts to ensure its passage. That means that the bill that is reintroduced would have to be identical to the one that was defeated. Therefore, even if it were thought desirable, it will not be possible to remove Scotland from the bill's scope if the Parliament Acts are invoked.
Until the UK Government and Parliament have concluded the existing legislative process, it is logical to regard it as unfinished Westminster business. However, these are devolved matters of some sensitivity. It is essential that this Parliament should have the opportunity to debate the Scottish provisions of the bill. We shall therefore provide for a debate in Executive time. I and my colleagues in the Executive will argue in that debate that the powers under the Parliament Acts should be used if that is thought appropriate by the United Kingdom Government.
We have reached that conclusion in the knowledge that this Parliament will have the power, if it so wishes, to amend or repeal any Scottish provision enacted by the passage of the Sexual Offences (Amendment) Bill.
As members are aware, there are a number of bills currently before the United Kingdom Parliament which make provision about matters that are to be within the legislative competence of the Scottish Parliament. The proceedings of some of these bills will still be in train on 1 July. A paper describing the bills that are expected to be enacted in this way is available to members from the document supply centre. When I finish, that document will also be available at the back of the chamber, as will a copy of my statement.
The bills include, for example, the Health Bill, the Water Industry Bill and the Pollution Prevention and Control Bill. The Health Bill will enable the completion of the reforms set out in the white paper "Designed to Care". In particular, it provides for the abolition of general practice fundholding, for changes in the financial arrangements for national health service trusts and for the imposition of a duty of quality on the NHS in Scotland. In addition, it includes measures to tackle fraud in the NHS and to require all primary care practitioners to have indemnity cover.
The Water Industry Bill will establish the water industry commissioner for Scotland and wind up the present Customers Council. The Pollution Prevention and Control Bill makes provision to ensure that the EC Directive on Integrated Pollution Prevention and Control is implemented on time.
There are also several bills with limited, specific provision about matters that will be within the competence of this Parliament. For example, the Welfare Reform and Pensions Bill is largely concerned with reserved matters, but includes provisions in the area of family law to allow the sharing of pensions between divorced couples.
It is the view of the Scottish Executive that it is right for the remaining stages of these bills to be completed at Westminster. They are, in the view of the Executive, necessary bills. Not to let them proceed at Westminster would mean halting consideration of them now, only to start again after the Scottish Parliament takes up its full powers on 1 July. In practice, that would mean no progress until the autumn at the earliest.
I stress that Scottish ministers are being consulted fully by the UK Government about the progress and handling of this legislation, and it will be for the Scottish ministers to exercise any ministerial powers and duties within devolved competence that are conferred by the bills. In doing so, they will, of course, be accountable to this Parliament.
Importantly in this context, I remind members that the Scottish Parliament will be able to amend or repeal legislation made at Westminster in so far as its provisions fall within this Parliament's competence. That is the case for existing legislation, for this session's bills at Westminster that affect Scotland and for future acts of the UK Parliament.
I thank the First Minister for providing copies of his statement in advance. That was very helpful. I think that we can agree that some of the current bills, particularly those in the House of Lords, are non-controversial and nearing the end of their process. It is sensible to let them
proceed, but we must lay down a caveat for the future. Allowing those bills to be completed at Westminster is not and cannot be a precedent. After the transition period is over, that must not happen again.
That brings us to future bills. The SNP view is that the United Kingdom Government should not legislate on devolved matters; they are devolved precisely because it is our job to legislate on them. The First Minister referred to the possibility of agreement between the two Parliaments. Does he accept, however, that an agreement in principle is not the same as the process of enacting a bill? We all know, particularly those of us who have been in Westminster, that vast changes—usually as a result of Government amendments—can be made to a bill before it becomes an act. Agreement in principle is not a satisfactory substitute for our scrutinising the detail of the legislation.
It is not good enough for the First Minister to say that we can repeal legislation later; he knows as well as we do that there is a great inertia factor in repealing existing statutes. It is fundamental that the Government should say now that it is not going to use its powers under section 28 of the Scotland Act 1998 to interfere with this Parliament's prerogatives.
I want to mention some of the other bills that are going through Westminster, particularly those that deal largely with reserved matters but that also touch on devolved matters. The First Minister mentioned the Welfare Reform and Pensions Bill, but I would like to refer to the Immigration and Asylum Bill. It has yet to receive its third reading in the House of Commons and to go through all its stages in the House of Lords, so it will probably not be on the statute book before the House of Commons recess at the end of July.
We all agree that immigration is a reserved matter, even if we do not agree with the content of the bill. It amends some Scottish legislation in devolved areas, particularly the Social Work (Scotland) Act 1968, which is the founding act of Scotland's social work system. Section 12 of that act puts a duty on local authorities to assist people in need, either in cash or in kind. The Immigration and Asylum Bill will amend it by inserting a provision that says:
"A person subject to immigration control is not to receive assistance because he is destitute".
I hope that no member of this Parliament came here to deny assistance to any category of person on the ground that that person was destitute. Labour members spent much time yesterday saying that they wanted to discuss what was happening out in the community rather than what was happening in this chamber. Here is something that we can decide for ourselves. I ask the First Minister to tell his colleague Mr Straw that we in Scotland are quite capable of deciding for ourselves our own social work rules. We were not elected here to follow some neo-Conservative agenda to deny assistance to those who are destitute.
I am grateful for the first few sentences of Alasdair Morgan's remarks. It is sensible that we should deal with the transitional provisions pragmatically. That is what I am recommending to the Parliament.
Mr Morgan refers to the Immigration and Asylum Bill, which is before the United Kingdom Parliament. It deals almost entirely with reserved matters, and as such will continue its passage through the House of Commons and presumably through the House of Lords. What its fate will be is a matter for those two chambers and the parliamentary process.
I am setting out the system that will operate in the future; what we do now is not necessarily a precedent. United Kingdom legislation that deals with both a devolved and a reserved area of responsibility will go through the Westminster system only if this chamber agrees to it. That is an important safeguard. On occasion, there may be disagreements in this Parliament about whether it is right to give such agreement, but that is entirely a matter for this chamber. If it does not consent, business at Westminster will have to be adapted to take account of that.
Mr Morgan seems to be asking me to say that, as a matter of principle, we will on no occasion allow a Westminster bill to go through, even though it is evident to all of us that it is sensible that its provisions should apply on either a GB- wide or a UK-wide basis. That would build inflexibility into our system. It would be counterproductive, and I would not agree with it.
Mr Morgan refers to an inertia factor that would prevent us from altering a provision that had come through the Westminster machinery even though there may be a wish to use a power in a devolved area. That is a criticism of this Parliament. The powers exist, if the Parliament wants to use them, and it is for those who are arguing for change to overcome any inertia. I hope that the SNP will not take this as too much of a compliment, but the word inertia is not one that I would apply to it. I do not know whether SNP members will win the argument, but they are certainly entitled to put their point of view.
I am happy to accept the principle that the Scottish Parliament should give its consent on future bills that would apply on a UK-wide basis. Unlike the Scottish National party, the Scottish Conservatives, as a unionist party, have no problem in accepting that
some acts—even those that cover devolved areas—should be enacted uniformly across the UK.
The establishment of the food standards agency is a clear case in point. As we stated in our manifesto, there should be a common standard across the whole of the UK to ensure that our producers, processors, retailers and restaurateurs are not subject to more stringent regulations than those that apply elsewhere in the UK. The First Minister said that he did not wish to go into specifics, but one of the specifics that relates to the food standards agency will be the method by which it is funded. I give notice that we are wholly opposed to the proposal that the agency should be funded by a flat-rate levy and we will oppose that when it comes before the Scottish Parliament for deliberation. I hope that other parties will support us in our opposition to that corner shop tax, which would mean that small local shops would pay the same amount as large supermarkets to fund the agency. The First Minister should invite the Westminster Government to revisit the issue.
That issue will put the coalition parties in some difficulty again, because the Liberal Democrats were unusually adamant when they said in their manifesto:
"We will abolish the flat rate levy on Scottish food premises to fund the Agency."
One of their candidates, Mr Mackie, was so disappointed with that proposal that he suggested the introduction of VAT on food as an alternative funding mechanism.
On the issue of the food standards agency and its funding, will the coalition parties be free to differ or will the principle of collective responsibility apply to the coalition Government? Alternatively, as with tuition fees, will we have yet another committee of inquiry to try to get some people off the hook?
I am unhappy with the arrangements that have been announced by the First Minister to deal with current bills in progress at Westminster. I believe that the principle that the Scottish Parliament should give its consent should apply to those current bills that cover devolved areas. During the election campaign, we indicated that we were unhappy that the Health Bill—which covers one of the principal devolved functions of this Parliament and involves the expenditure of one third of the total Scottish Office block—was to be discussed and determined at Westminster.
Given that this Parliament operates on a different time scale from the one at Westminster and will resume its deliberations in September, will the First Minister make time available under Executive business for the Scottish Parliament to express a view on the Health Bill and the other bills in progress? I think that it would be arrogant to proceed otherwise—if we applied the principle of consent and debate to all bills, we would set down an important marker.
I am grateful for the support in principle that I received from David McLetchie, but he rather spoiled it with his subsequent remarks.
I am grateful, too, for David McLetchie's remarks about the handling of the food standards agency. I understand that there is considerable controversy about the funding levy and its mechanics. I said that I did not want to be drawn into specifics and I will hold to that, because I hope that, before we rise, there will be an opportunity to discuss the levy during a debate on the food standards bill. The matter of the levy may well be revisited, but although it is easy to say that there ought to be a graduated levy, practical problems would arise over its definition. I will be interested to hear the Conservative party's solution to those problems when the time comes.
I proposed that the current bills to which I referred, particularly the Health Bill, should be allowed to continue their progress as a matter of convenience; otherwise, we will have to halt everything and start again. The bill can be inspected when it reaches the statute book; if something is thought to be so controversial that it is worth changing, this Parliament can take steps. I do not believe that that will be the view of this Parliament, but that is a matter for debate. I do not intend to have a debate on the issue, but if David McLetchie believes that there should be one, he should argue his case with the Parliamentary Bureau.
The legislation to impose tuition fees for higher education and to abolish student grants was passed by the Westminster Parliament, but those subjects are now to be considered by a committee of inquiry under the so-called partnership agreement. Will the First Minister give an absolute assurance that the Scottish Parliament will be free to legislate on those matters, given that the majority of members were elected on a commitment to abolish tuition fees and that many of us also want student grants to be restored, particularly for students from low-income families?
That matter has nothing to do with the statement I have made. As Dennis Canavan knows, it is a devolved area of responsibility over which, therefore, this Parliament has powers.
I am deeply concerned about the Immigration and Asylum Bill, which is currently going through the House of Commons. The First Minister mentioned that most of the bill covers reserved matters. However,
clause 105 amends the Housing (Scotland) Act 1987 to prohibit asylum seekers from gaining housing under the act's homelessness provisions. The amendment of the Social Work (Scotland) Act 1968 has been mentioned; the bill also amends the Mental Health (Scotland) Act 1984, to prevent local authorities from making arrangements for the mental health care of asylum seekers. The Children (Scotland) Act 1995 is being amended to prevent local authorities from providing support to children of asylum seekers.
The First Minister talks about the ability to repeal legislation, and expresses concern about the possible inertia of this Parliament. However, a series of acts is involved—does the First Minister agree that it would be easier to persuade Jack Straw to remove those clauses at this stage than for us to have to go back to amend several acts as a result of legislation that is currently going through the House of Commons?
Fiona Hyslop will remember that asylum and immigration are reserved matters, on which the Westminster Parliament passes legislation. She may not like that fact, but she will have to accept that it is part of the division of responsibility within the United Kingdom.
Fiona Hyslop will also remember that there are Scottish members at Westminster who have substantial interests in these matters and who will no doubt consult Scottish local authorities and others and represent their points of view. Her party has a number of MPs at Westminster; she will no doubt urge them to put forward a point of view if she thinks it important for them to do so.
On the Access to Justice Bill, will the First Minister make a statement about the Scottish Criminal Cases Review Commission? I am unhappy about a number of the restrictions that have been imposed in relation to legal aid, as they represent an infringement of civil liberties and justice, but I am glad that the bill will remove the merits test for granting legal aid in cases that the commission refers to the appeal court.
I have a specific interest in some of the dozen or so cases that are currently before the Scottish Criminal Cases Review Commission, including that of Thomas Campbell and Joseph Steele, and that of Stuart Gair. The First Minister will be aware that the commission can recommend that a case be returned to the appeal court, but that the Scottish Office has been able to refuse such a recommendation. Will he state whether such recommendations will be accepted without political interference?
That is way beyond the matter under discussion. I might find myself in trouble with the Deputy Presiding Officer if I were to initiate a debate about the Scottish Criminal Cases Review Commission, but I hope that I will be allowed to say that, as a Scottish politician and a lay person, I am delighted to have got myself out of the responsibility of making decisions on such matters at one remove. The point of the Scottish Criminal Cases Review Commission is to take over such functions. It must exercise its judgment in light of the law of Scotland and the available evidence. I would not want to comment on any particular case.
The Access to Justice Bill is an example of why we want our measures to go through. It corrects an anomaly and, for the first time, makes legal aid available in cases referred to the Court of Appeal by the Scottish Criminal Cases Review Commission. Mr Sheridan should approve of that. It will also enable recipients of the disability working allowance to be exempt from the financial eligibility and contributions tests for advice and assistance from solicitors.
The rigid, nationalistic point of view would be that we could not accept the legislation now but should wait for a year, or for however long, until we can find the time to legislate. Common sense, however, tells us to let such worthwhile, non-controversial and widely welcomed matters to go through under the arrangements that I have outlined.