Lords' Constitution Committee adds call for Scotland Bill delay

A second House of Lords committee has come out in favour of delaying progress on the Scotland Bill pending clarification of how it would work in practice, and its implications for the sovereignty of the UK Parliament.

In a report published today, the Constitution Committee says the House should consider whether to delay progress on the bill until a new memorandum of understanding is published setting out how the UK and Scottish Governments will work together to manage areas of shared and concurrent powers in areas such as welfare policy, and how they will resolve disputes between their administrations. Negotiations on the content of a new memorandum are continuing between the two Governments.

The bill's second reading debate takes place in the House of Lords tomorrow (24 November). Last week the Economic Affairs Committee called for the committee stage to be delayed until the fiscal framework was agreed between the two Governments, as the bill could not be properly understood or considered in its absence (click here for report).

The committee notes that clauses 1 and 2 of the bill (which state in law the permanence of the Scottish Parliament and Government and formalise the Sewel Convention relating to the UK Parliament’s right to legislate on devolved matters) risk creating a route through which the courts might start to challenge Parliament’s right to make law. This could create uncertainty as to the nature of parliamentary sovereignty, which is a cornerstone of the UK’s constitution.

Separately, the Scottish Parliament’s proposed power to change the rules on who can vote, including lowering the voting age, may be compromised by the fact that it cannot make laws that are incompatible with European Convention on Human Rights. Since the UK’s blanket ban on prisoners voting has been deemed incompatible with the Convention, the Scottish Parliament may find that it cannot pass any legislation relating to the franchise unless it also enfranchises some prisoners in accordance with its human rights obligations. The committee calls on the Government to clarify how it will ensure that the Scottish Parliament will be able to exercise these powers.

While the UK Government has described the bill's provisions as "responsive and pragmatic", the report comments: "What is absent from the Government's response is any sense that the role and future of the Union are being taken into account in that process."

Chairman Lord Lang of Monkton said the committee was very concerned that the House was being asked to debate and scrutinise the bill without the necessary information, when the bill created "serious risks of future disputes and instability".

Regarding the issues raised over parliamentary sovereignty he commented: "These measures seem designed to limit Parliament’s competence to legislate. The concept of parliamentary sovereignty is a fundamental principle of the United Kingdom’s constitution. Seeking to limit future Parliaments in this way undermines that principle."

Lord Lang continued: "We also point out that at the root of many of the committee’s concerns about the bill is the inappropriate and urgent process by which these significant constitutional proposals have come about. In particular, the hasty decision, taken in advance by the leaders of the three main political parties, to implement the recommendations of the Smith Commission appears to have pre-empted any possibility of meaningful discussion on the merits of the proposals contained in the bill. The political parties are constrained by ‘the Vow’ and by the continuing absence of much still unpublished information that is needed for proper debate. Parliament is therefore still unable to debate meaningfully the merits of the proposals."

The committee again expresses its concern that "the Vow" to implement at once the recommendations of the Smith Commission has pre-empted any possibility of meaningful wider consultation on the merits of the proposals in the Scotland Bill, in effect excluding the UK Parliament from the decision-making process.

Click here to view the report.