The fate of the Scotland bill has been a recurrent theme on this blog (see HERE and HERE for some examples, or use the ‘Calman Commission/Scotland bill’ category in the sidebar at the right for a comprehensive listing). The bill will start its Lords committee stage this coming Friday, during which I understand the practice is not to propose amendments, but only to discuss the bill. (Amendments get proposed at report stage.) However, although the Scotland Bill Committee has reported to the Scottish Parliament, there’s no sign of the legislative consent motion being tabled in plenary.
This absence is important. Legislative consent needs to be affirmative; it can’t be presumed by its absence. In the absence of an LCM, Holyrood can’t even vote to reject the bill – and its progress to the statute book is as stymied as if there were a clear motion opposing the bill. (I’ve argued earlier, HERE, that respecting the Parliament’s power to block the bill is constitutionally fundamental.)
There is plenty of scope for negotiation about the bill, despite the long list of changes identified in the Scotland Bill Committee’s report. Many of the changes named there – the demand for full fiscal autonomy, for example – are there to be negotiated away. Given the recent comments of Linda Fabiani, the committee’s convenor, asking for the Secretary of State to propose changes, it seems that the SNP remains keen to see the bill pass, with appropriate changes. It equally appears that Michael Moore is unwilling to enter that sort of debate – though, given the terms on which it’s now being held, it has become something of a dutch auction. Moore’s self-imposed deadline of ‘the end of this parliamentary session’ (meaning May, or thereabouts) for passage of the bill adds to the pressure. The pressure is, however, mostly on him.
As an aside, it’s worth noting the rather unusual intervention of the Lord President of the Court of Session in the debate about the bill’s provisions concerning criminal appeals to the UK Supreme Court. There’s a press statement here, from which Lord Hamilton’s ‘written representations’ can be downloaded, and a news report here. The Lord President emphasises his statutory authority (under the Constitutional Reform Act 2005) to make those. The substance of his representations is to side with the review group chaired by Lord McCluskey set up by the Scottish Government, that the Court of Session should be able to certify cases which go to the UK Supreme Court on human rights grounds. (See also news coverage here.) The alternative to this is Advocate General’s position, reflected in the Scotland bill, that such cases should continue to go automatically to the UK Supreme Court as they are ‘devolution issues’. Such an intervention adds further weight to the calls (from many in the law in Scotland, though not the Law Society of Scotland) to amend those provisions of the Scotland bill.
The question of whether the bill still serves any purpose is a valid one. Regardless of how far the constitutional debates have moved since the bill was first introduced into Parliament (only 14 months ago), it still serves two purposes. The first is as valid for anyone who wants to see ‘devolution max’ happen. What the bill proposes in terms of fiscal devolution remains revolutionary in administrative terms. Getting HM Customs & Excise to grapple with arrangements for collecting different rates of income tax is necessary not just to make the bill’s arrangements work, but as part of creating the machinery for any further fiscal devolution in future. It’s a vital step along the path toward a fiscally decentralised UK.
Second, it’s clear that the people of Scotland want something more than devolution as enacted in 1998, and indeed more than the bill provides. Heading into a referendum, the worst position for unionists to be in would be to argue that devolution can only mean what was enacted in 1998 and cannot change or develop. If the bill fails to reach the statute book, that’s exactly the message that will sent to Scottish voters. In that context, a defeat for the bill does not send the message ‘SNP oppose further powers for Scotland’, but ‘independence only meaningful alternative to status quo’. That message will work electorally to the SNP’s benefit in the referendum, not the unionist parties’ – and of course the SNP will have no objection to letting the unionist parties score an own-goal if they wish.
UPDATE, 26 January: The list of marshalled amendments to the bill for Friday’s start of Lords committee stage as of 24 January is available here (though check here to see if this is the latest one). There’s quite a range of amendments. Lord Forsyth and Lord Foulkes both want (different) referendums on the tax powers. Lord Foulkes also objects to them entirely, while Lord Forsyth is willing to devolve some smaller taxes including excise duty and air passenger duty, but on their existing basis. (That would mean Holyrood could change the rates of tax but not what it’s charged on – so it’s a transfer of a source of revenue, but not a way of using tax as a lever to encourage or discourage particular sorts of behaviour. And to devolve excise duty as Forsyth proposes would in fact mean establishing an internal trade barrier to the movement of alcoholic drinks, as you’d need to charge duty on the movement of alcoholic drinks across the England/Scotland border.) Foulkes also proposes amendments to ensure the Scottish Government’s name is ‘the devolved Scottish Government’. The Earl of Caithness wants a referendum in Orkney and Shetland to allow them cease to be part of Scotland if there is a referendum on independence. There’s also an independence referendum amendment, proposed by Lord Forsyth, Lord Lang and the Earl of Caithness.
Less dramatic but more practical are amendments by the Duke of Montrose to delete the clause preventing Holyrood legislating in relation to Antarctica.
Most interesting in practical terms are the amendments relating to legal provisions and the courts. There are also some detailed amendments relating to the legal system from Lords Boyd of Duncansby and Lord Browne of Ladyton (more familiar as Colin Boyd QC, former Lord Advocate , and Des Browne, former Secretary of State for Scotland). Theirs include deleting clause 7, allowing referral of particular clauses of bills to the UK Supreme Court (a good amendment to address a bad clause). There are amendments from both Lord Wallace and Lord McCluskey to give effect to their different position about human rights-based appeals to the Supreme Court, and the question of certification.
Lords Committee stage (and report stage) are going to be messy, protracted affairs. This just reinforces the point I made above – that time pressure to complete it progress through WEstminster, as well to secure Holyrood’s legislative consent, means that this bill is in fact very likely just to die. The only way to save it will be for the Scotland Office to remove Michael Moore’s self-imposed block on carrying it over to the next session.
FURTHER UPDATE, 27 January: Some further supplementary amendments can be found here. The most notable is Lord Foulkes’s probing amendment concerning fiscal autonomy.