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Scotland Act 1998 (Modification of Schedules 4 and 5) Order 2015

Volume 764: debated on Monday 7 September 2015

Motion to Consider

Moved by

That the Grand Committee do consider the Scotland Act 1998 (Modification of Schedules 4 and 5) Order 2015.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments

My Lords, I beg to move that the draft order laid before the House on 29 June 2015 now be considered. If it pleases the Committee, I will provide a brief summary of the background to this order and set out what it seeks to achieve.

When the Fixed-term Parliaments Act 2011 was passed, it provided that the next general election for membership of this Parliament would be 7 May 2020. That same Act also provided that the next Scottish parliamentary general election would be 5 May 2016. The Scotland Act 1998 provides for the poll at Scottish parliamentary general elections to be held on the first Thursday in May every fourth year. This all combines to mean that, as things currently stand, there are due to be general elections to both the UK and Scottish Parliaments on 7 May 2020. Clearly, such a clash of elections is undesirable and this Government have always been committed to ensuring that it should be avoided.

The Government are also committed to implementing the recommendations of the Smith commission agreement. One of those recommendations is that the Scottish Parliament should have all powers in relation to Scottish parliamentary and local government elections in Scotland. As noble Lords will be aware, the current Scotland Bill makes provision to implement that recommendation. However, as both the UK and Scottish Governments agree that Scottish parliamentary electors should be aware of the term of the Scottish Parliament to which they are electing Members when they vote in May 2016, we are faced with an issue of timing. If the Scottish Parliament is to legislate in advance of the May 2016 election to determine a date for the first Scottish parliamentary ordinary general election after that one, the power to do so needs to be devolved now. Devolving that power is exactly what this order does.

The order is made under Section 30 of the 1998 Act, which provides a mechanism whereby Schedules 4 and 5 to that Act can be modified by an Order in Council, subject to the agreement of both the UK and Scottish Parliaments. This order will amend both Schedules 4 and 5 to the 1998 Act, with the agreement of both Parliaments. Schedule 4 to the 1998 Act lists enactments which are protected from modification by the Scottish Parliament. Much of the 1998 Act is included in that list. As I have previously mentioned, the 1998 Act provides for the poll at Scottish parliamentary general elections to be held on the first Thursday in May every fourth year. Section 2(2) of the 1998 Act makes that provision. Therefore, this order will amend Schedule 4 to the 1998 Act to allow the Act of the Scottish Parliament to modify Section 2(2) in relation to the first Scottish parliamentary ordinary general election after 2016. Secondly, Schedule 5 to the 1998 Act lists the matters that are reserved to this Parliament. Among other things, elections for membership of the Scottish Parliament are reserved. In order that the Scottish Parliament can determine the day of the poll at the first Scottish parliamentary ordinary general election after 2016, this order will amend Schedule 5 to provide that that matter will no longer be a reserved matter.

The amendments to both schedules will combine to ensure that the Scottish Parliament has the power to determine the date of the first Scottish parliamentary ordinary general election after that to be held next May. The order also amends Section 2 of the 1998 Act in connection with the amendments to the schedules. However, the order places certain limitations on the day which can be chosen by the Scottish Parliament. Specifically, the order will prevent the day of the poll determined by the Scottish Parliament being the same as the day of the poll at a UK parliamentary general election, a European parliamentary election or ordinary local government elections in Scotland. I note that these limitations were as recommended in the Smith commission agreement.

I also take time to anticipate two matters in relation to the order. First, devolving this power to the Scottish Parliament will mean that the Scottish Parliament can, in respect of that election, legislate for the term of the relevant Parliament. Some have asked whether that could result in there being a term of 50 years determined by the Scottish Parliament. To that the Government have two responses. First, the Scottish Parliament is a responsible, democratic body; there is no realistic prospect of such a thing happening. But even if it was contemplated in the wilder imaginings of any parliamentarian, let me also point out that pursuant to Article 3 of the first protocol to the European Convention on Human Rights, there is a requirement for free elections at reasonable intervals. The Scottish Parliament, pursuant to Section 29 of the Scotland Act 1998 can bring forward only legislation that complies with the convention—and, in particular, Article 3 of the first protocol.

The second matter I want to mention is why, in the context of this provision, there is no requirement for the decision made in the Scottish Parliament to be supported by a two-thirds majority. In accordance with the Smith commission agreement, this order provides that it will be for the Scottish Parliament to determine the date of the parliamentary term that I have referred to. Paragraph 27 of the Smith commission agreement states:

“To provide an adequate check on Scottish Parliament legislation changing the franchise, the electoral system or the number of constituency and regional members for the Scottish Parliament, UK legislation will require such legislation to be passed by a two-thirds majority of the Scottish Parliament”.

However, the provisions in this order do not change the franchise, the electoral system or the number of constituency and regional Members for the Scottish Parliament. Accordingly, to require a two-thirds majority in respect of this matter would be to innovate upon the Smith agreement because the provision does not fall within the terms of paragraph 27 of the Smith agreement. It is not the intention of this Government to innovate upon the Smith agreement. It is the intention of this Government to honour the terms of the Smith agreement and to implement them fully and in accordance with their proper terms. In these circumstances, there is no contemplation of a supermajority in respect of this order.

This order demonstrates the Government’s commitment to devolving further powers to the Scottish Parliament and to honouring the Smith commission agreement. It also demonstrates the way in which this Government can work effectively with the Scottish Government to make the devolution settlement work. I commend the order to the Committee. I beg to move.

My Lords, I thank the Minister and his staff for keeping me fully informed at an early date, allowing me to consider what is proposed in more detail. I hope that this mini-debate will be far less interesting and contentious than the one two debates ago. There is agreement here. The Opposition are fully behind what the Government are doing. I suppose that some comments could be made about the 50-year proposal, although I think the possibility of that lessens with the change of First Minister. I say that jokingly, of course, in case anybody in the Scottish press gets excited about any perceived attack on Mr Salmond—God forbid.

Certainly, the proposal is firmly within the Smith commission agreement, which the Official Opposition fully support. There are exceptions, which have been outlined by the Minister, and we go along with those as well. The two-thirds majority safeguard is absolutely right. As the Scottish Parliament goes on and gains more experience, it would be entirely ludicrous for anyone to suggest that there is a possibility of it behaving in a manner that, quite rightly, was posited by the Minister as being something that none of us want. Certainly, the Scottish Parliament is growing in experience. The people of Scotland and the United Kingdom should remember that the concept of a Scottish parliament was bitterly opposed by the Conservative Party at the time. We are absolutely delighted at the major conversion of the Government to the principle of a Scottish Parliament. In fairness to the Government, we believe that they are sticking by the terms of the Smith commission to deliver as much as possible to the Scottish Parliament in these devolved matters.

I reiterate that we are fully behind what the Government are doing. In serious terms, the maturity of the Scottish Parliament is growing. That can only be good for relations in Scotland itself and for the very important matter of relations between any Scottish Government out of Holyrood and the United Kingdom Parliament. I repeat again, we are fully behind the measure.

My Lords, I, too, support the order. I welcome the Advocate-General’s introduction of it. My mind goes back to the passage of the 1998 Bill through this House. At that time, I tried to move amendments that would have covered exactly the issues we are debating today. I am sorry to say that I did not get any support from the Labour Government, or indeed from the Conservative Opposition at that time. It struck me as odd that we were establishing a new Parliament in Scotland, yet this Parliament was going to continue to control that Parliament’s internal affairs. That seemed to me to be wrong. I was reinforced in that view when I took office as the first Presiding Officer at the Scottish Parliament and found that silly things such as the number of Deputy Presiding Officers we were allowed to have was laid down by this Parliament—that we could do nothing to make any internal changes. I therefore welcome the order. The Smith commission was very clear in stating that the Scottish Parliament should have all powers in relation to its own elections and,

“powers to make decisions about all matters relating to the arrangements and operations of the Scottish Parliament”.

That seems to me to be common sense. I very much welcome it.

If we leave this order as it is, it is open to the Scottish Parliament to change the predicted date of a Scottish Parliament election. I have tried to work it out. I hope that my arithmetic is correct, but if we leave things as they are and the Westminster Parliament is on a fixed basis of elections every five years and the Scottish Parliament is on a fixed basis of every four years, every 20 years there will be a clash. The Scottish Parliament would therefore have to use the powers in the order to make the changes. In the light of that, it would be sensible if the Scottish Parliament were to reflect on the fact that we have a fixed-term Parliament here and in Scotland, and that it would make more sense for the fixed term to be the same so that the dates do not clash at any time. That is a matter for the Scottish Parliament to decide in the future. In the mean time, I thank the Advocate-General for the introduction of this change to Schedules 4 and 5 to the original Act and I give it a full welcome.

I first acknowledge the perspicacity of the noble Lord, Lord Steel, at the time of the passage of the 1998 Act. However, I was not here. I thank the noble Lord, Lord McAvoy, for the position that he has expressed. Of course, there has been more than one Pauline conversion on the road to final devolved settlement. We all hope that there will be more, even among the nationalists.

Motion agreed.