I expect Michael Moore’s officials are pretty pleased with the evidence he gave about the Scotland bill to the Commons Scottish Affairs Committee on Wednesday. (I stayed to watch after I’d given evidence myself.) For officials, a select committee has gone well if their minister says nothing, and Moore played pretty much everything back with the sort of straight bat that resembled Trevor Bailey at his most obdurate. They shouldn’t be so pleased, though. Late in the session, he said two things that constitute damaging admissions. The first is about the need for legislative consent from the Scottish Parliament and the applications of the Sewel Convention. The other concerns clause 23 of the bill, enabling UK ministers to intervene to implement international treaty obligations relating to devolved matters. I’ll discuss that in a separate post; it gets pretty technical, but suffice it to say here that the case the Secretary of State made for the clause simply doesn’t stand up.
Regarding the Sewel convention, the Committee’s Chairman asked a sequence of questions about what would happen if the legislative consent motion at Holyrood were a conditional one. Moore emphasised that the UK Government would ‘reflect’ on the terms of such a motion and look to accommodate them but ultimately would reserve the right to overrule Holyrood if the changes it proposed were fundamental to the bill. The exchange is worth quoting in full (this is from the uncorrected transcript):
Q653 Chair: … Can I come back to the legislative consent motion concept? If the Scottish Parliament passes what could be described as a partial legislative consent motion, supporting some but not all of the proposals, what then happens?
Michael Moore: We will reflect on the report when we get it, as indeed I am sure you will, and then we will work with colleagues to establish which bits of it we agree with and wish to reflect in amendments, either to the Bill itself or as clarifications of the Command Paper. I wouldn’t want to prejudge whether the Parliament will take a different view to the report from the Committee—that’s a matter for the Parliament—but we will have plenty of time for scrutiny and consideration.
Q654 Chair: I understand some of that, but I am not sure I entirely grasp your answer. If the Scottish Parliament, which may receive options from the Committee, chooses options that are at variance with the Government’s proposals at the moment, or if the Scottish Parliament fails to pass some elements of the Bill and provides a legislative consent motion, what happens when it arrives here?
Michael Moore: We will still have plenty of opportunity here after the motion has been passed, and in the House of Lords as well, to reflect on the motion rather than on the report, if there is a material difference between the two. So I don’t foresee a real problem.
Q655 Chair: Can I just clarify what happens if the Scottish Parliament passes something that the coalition Government are minded not to support, or rejects something that the Government here are minded to support? Would the Government overrule that legislative consent motion?
Michael Moore: Ultimately, we are responsible and accountable for taking the legislation through. We have not offered a guarantee that we will change everything in our Bill and in the processes attached to it—in the Command Paper—as a result of this process. What we’ve undertaken to do is to reflect very carefully indeed—
Q656 Chair: It is very helpful to have that clarified, because there was some doubt as to whether the Scottish Parliament would effectively have a veto over the Bill and, by not passing something, would force the Government, either legally or morally, to abandon it.
Michael Moore: If it came up with a fundamental issue about the Bill that it did not like and wished to change, we would clearly have to reflect on that and consider what it meant for the legislation. I am hopeful, based on my view of the work so far, that that’s not a problem that we’ll have; but, again, I don’t want to prejudge the Parliament’s work or the outcomes of the process.
Q657 Chair: We feel obliged to some extent to comment on what might happen. If the Parliament decided that income tax, instead of being variable by 10p, should be variable by either 5p or 15p, what then would be the mechanism? Would you retain the right to ignore what it said and put through the 10p?
Michael Moore: Yes.
Chair: Fine. I think that that has the merit of clarity.
This contradicts the position taken by Moore previously. In his speech opening the Commons second reading debate on the bill, he said ‘… the bill will fundamentally change the powers and responsibilities of the Scottish Parliament. For that reason, the Government will proceed with the Bill only with the formal and explicit consent of the Scottish Parliament’ (col. 477, available here). Similarly, the Command paper Strengthening Scotland’s Future said ‘Under the terms of the Sewel Convention … it will be for the Scottish Parliament to indicate their approval for the measures contained within the Scotland Bill’ (pp. 19-20).
This threat to overturn the Sewel Convention and push the bill through even if the Scottish Parliament is opposed to provisions of it goes to the heart of what devolution is about. The Convention ensures that functions cannot be conferred on the Scottish Parliament or Government, or taken away from them, without the Parliament’s consent. It is a fundamental and essential recognition that even a non-sovereign legislature has to have control over what it does, and that its prerogatives include that sort of control. Setting aside the convention if the UK Government thinks that is appropriate or convenient is simply unacceptable. It turns devolved institutions, with autonomy to determine matters where they have been given functions, into clearly subordinate ones whose powers are determined according to the wishes of the UK Government of the day. And that will undermine the whole political purpose of devolution in the first place.