1 Introduction
1. On 30 November 2010, the Government introduced
the Scotland Bill in the House of Commons, and published an accompanying
Command Paper, Strengthening Scotland's Future.[3]
The Bill and Command Paper set out the Government's proposals
for implementation of the findings of the Commission on Scottish
Devolution (the Calman Commission), which published its Report
in June 2009.[4] The Bill
received its Second Reading in the House of Commons on 28 January
2011, and its Committee stage was taken on the floor of the House
on 7, 14 and 15 of March 2011.[5]
2. Our predecessor Committee published its Report
on the Commission on Scottish Devolution on 3 March 2010.[6]
That Report focused on the Calman Commission's recommendations
concerning relations between the House of Commons and the Scottish
Parliament. We endorse the findings of our predecessor Committee.
The findings of the Calman Commission, and other issues relating
to the devolution settlement in Scotland, were also the subject
of parliamentary scrutiny by other Committees in the previous
Parliament. For example, the House of Commons Justice Committee
published its Report Devolution: a decade on, in May 2009.[7]
The House of Lords Select Committee on the Barnett Formula published
its Report in July 2009.[8]
Our Inquiry
3. We launched our inquiry on 6 January 2011, with
a view to publishing our Report in time for the Third Reading
of the Bill. The purpose of our inquiry was to specifically examine
the provisions and proposals set out in the Scotland Bill and
the Command Paper, and to consider how those proposals sought
to implement the recommendations of the Calman Commission. We
sought evidence on the following questions:
- Which of the recommendations
of the Calman Commission on Scottish Devolution are not implemented
by the Bill, and why?
- What provisions are made in the Bill, which were
not recommended or considered by the Commission on Scottish Devolution?
- What are the fiscal and financial implications
of the provisions in the Bill for Scotland?
- What further provisions could/should be included
in the Bill in order to further amend and develop the Scotland
Act 1998?
4. We took oral evidence from a number of academics,
journalists, economists and voluntary sector and trade union representatives.
We also heard evidence from Sir Kenneth Calman, the Chairman of
the Commission on Scottish Devolution, Fiona Hyslop MSP, Minister
for Culture and External Affairs, Scottish Government,[9]
from Rt Hon Michael Moore MP, Secretary of State for Scotland,
and Rt Hon David Mundell MP, Parliamentary Under-Secretary of
State for Scotland. A full list of witnesses is attached at the
end of this Report. We met with Members of the Scottish Parliament
Committee on the Bill in order to discuss the conclusions of its
Report, published on 3 March 2011.[10]
We received a wide range of written evidence, a full list of which
is attached to this Report. We would like to thank all of those
who assisted us with our inquiries, including the House of Commons
Scrutiny Unit and the House of Commons Library.
5. The main focus of our scrutiny has been on the
financial and fiscal provisions of the Bill, for a number of reasons.
First, as noted above, much of the subject matter of the Bill
has already been the focus of detailed parliamentary scrutiny,
including by our own predecessor Committee. Second, the Government
considers the financial provisions to be the most important component
of its proposals. The Scotland Office noted that of the areas
covered in the Bill, "the most significant are the proposals
to devolve a number of tax powers and to increase the financial
accountability of the Scottish Parliament".[11]
In focusing our scrutiny in this area, we sought to evaluate
the Government's proposals on the basis of the Government stated
aim for the Bill—of increasing the financial accountability
of the Scottish Parliament.
6. While some of the Government's proposals are included
in the Bill, many of the fiscal proposals do not require legislation,
and are set out in the Command Paper, Strengthening Scotland's
Future. While we make some recommendations in relation to
amendments required on the face of the Bill, most of our recommendations
are focused on improving the implementation of the proposals,
should the Bill be enacted. We reserve our comments to the more
controversial aspects of the proposals and seek to identify mechanisms
to improve the deliverability and workability of the proposals,
in particular in the areas of cooperation and transparency, in
order to strengthen the devolution settlement for the benefit
of the people of Scotland.
The purpose of the Bill
7. Two important principles have underpinned our
scrutiny of this Bill. First, the late John Smith, former leader
of the Labour Party, once described devolution as "the settled
will" of the Scottish people. The former Secretary of State
for Wales, Ron Davies, also described devolution as "a process
not an event".[12]
While the present Scottish Government—as a matter of principle—opposes
reservation of responsibilities currently within the competence
of the Scottish Parliament,[13]
we believe this view is over simplistic. We believe that the
evolution of the constitution is a process which requires powers
to move in whichever direction is in the interest of the people
and their better governance. We therefore see devolution as a
multi-directional process, with powers moving in different ways.
This process should lead to further decentralisation within Scotland,
to local authorities and communities, and not simply to a gathering
in of authority in Edinburgh. We note that many of our witnesses
identified this Bill as a step, rather than an end point. We agree
with this view and believe that further changes should be based
on experience.
8. Second, the main focus of criticism of the Bill
has been from those who see the Bill as a missed opportunity
to provide the Scottish Parliament with levers for economic growth.
However, we believe this criticism is based on a deliberate misunderstanding
of the purposes and objectives of the Bill. The Scottish Parliament
Committee on the Bill noted that the Scotland Bill was about "good
government [...] intended to improve how Scotland is governed
and align decisions on spending and taxation more closely so that
the Scottish Parliament will be more accountable, and, in the
long run, take better decisions".[14]
9. Rt Hon Michael Moore MP, Secretary of State for
Scotland said:
Primarily, this is a constitutional Bill. It's
about giving the Scottish Parliament more accountability, ensuring
that we tweak the balance of devolved and reserved powers, and
improving some of the procedural aspects of Parliament and of
inter-parliamentary and intergovernmental relations.[15]
10. The implementation of the proposals and the enactment
of legislation will impact on the daily reality of the lives of
the people of Scotland. It is important therefore, that the Government
get this right. Professor Jim Gallagher, Secretary to the Calman
Commission and former Director General for Devolution, UK Government,
noted that: "constitutions are a framework within which governments
operate. This is seeking to create the right framework, with proper
incentives, including financial incentives, within which the Scottish
Parliament—the Scottish Government—working with other
institutions in the UK, can do the best it can for the Scottish
people".[16] We
welcome the opportunity afforded by the Scotland Bill and Strengthening
Scotland's Future to improve the constitutional framework
within which devolution operates in Scotland. We particularly
welcome the Government's stated aim of improving the accountability
of the Scottish Parliament, which we believe will be to the benefit
of the people of Scotland.
Timing and process
11. The Secretary of State for Scotland told us that
his intention from the outset was to secure Third Reading of the
Bill in this House, "before the Scottish Parliament went
into its election dissolution period so that the electorate and
the parties in Scotland had a strong indication of where the Bill
was headed and to demonstrate that it had secured parliamentary
support".[17] He
emphasised the delicate nature of the timing, "if not choreography"
of the process.[18]
12. This choreography was necessary because the Bill
is subject to the Sewel Convention, which states the Government's
expectation that the UK Parliament will not normally legislate
with regard to devolved matters in Scotland without the consent
of the Scottish Parliament.[19]
However, since "the United Kingdom Parliament retains authority
to legislate on any issue, whether devolved or not [and] it is
ultimately for Parliament to decide what use to make of that power".[20]
A more precise articulation might be that the UK Government would
not normally invite the UK Parliament to legislate with regard
to devolved matters in Scotland without the consent of the Scottish
Parliament.[21] The present
position was made clear by the Secretary of State when he said
that:
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 reflect very carefully
indeed.[22]
13. The Scotland Bill was debated in the Scottish
Parliament on 9 December 2010, when the majority of the Parliament
voted in support of the general principles of the Bill.[23]
A Committee of the Scottish Parliament was established in order
to scrutinise the provisions in the Bill more closely. Its work
has overlapped with our scrutiny of the Bill. As noted above,
the Committee, under the convenorship of Wendy Alexander MSP,
published its Report on the Bill on 3 March 2011. While the Committee
recommended that the Scottish Parliament should support the Scotland
Bill, it also identified a "number of areas" where changes
to the Bill and associated policy were needed. It therefore recommended
that a further Legislative Consent Motion (LCM) would be required
during the next session of the Scottish Parliament to consider
the amendments to the Bill before it receives Royal Assent.[24]
14. The Scottish Parliament Committee's Report and
the draft Legislative Consent Motion was debated in a plenary
session of the Scottish Parliament on Thursday 10 March 2011.[25]
The Motion was as follows:
That the Parliament agrees that, further to motion
S3M-7550 passed on 9 December 2010 supporting the general principles
of the Scotland Bill as introduced in the House of Commons on
30 November 2010, the Bill be considered by the UK Parliament;
invites the UK Government and the UK Parliament to consider the
amendments and proposals made in the report of the Scotland Bill
Committee, and looks forward to considering any amendments made
to the Bill with a view to debating them in a further legislative
consent motion before the Bill is passed for Royal Assent.[26]
15. Fiona Hyslop MSP, Minister for Culture and External
Affairs, Scottish Government, identified the fact that the first
day of the Committee stage of the Bill took place before the Scottish
Parliament was able to debate the Scottish Parliament Committee's
Report and its proposed Legislative Consent Motion on the Bill,
as an issue of "real concern". She explained that this
time scale had not allowed the Scottish Parliament to indicate
its consent before the amendments "on the non-financial aspects
will be tabled, debated and voted on".[27]
Mr Moore said there should be an opportunity, after the LCM has
been passed in the Scottish Parliament, "to get an amending
stage here in this House", and that the Government would
therefore "certainly satisfy that [the Sewel] principle".[28]
Ms Hyslop indicated that it would be very helpful if there were
an opportunity for issues of real concern to be considered by
the Scottish Parliament "after the House of Commons Committee
stage".[29]
16. We agree that the UK Parliament should respect
the well established principle that it should not normally legislate
with regard to devolved matters in Scotland without the consent
of the Scottish Parliament. We appreciate the delicate choreography
performed by the Scotland Office in seeking to bring forward a
timetable which sought to balance the right of the Scottish Parliament
to scrutinise the legislation, while at the same time allowing
the House of Commons to complete its stages before the Scottish
Parliament elections.
17. While we regret that the first day of Committee
stage in this House took place before the Scottish Parliament
debate on its Legislative Consent Motion, we welcome the fact
that the Scottish Parliament indicated its consent before the
second and third days of Committee stage.
18. We note that the Scottish Parliament Committee
on the Bill recommended some significant amendments to the Bill.
We also note the amendments made to the Bill during its Committee
stage in this House. We have some sympathy therefore with the
Scottish Parliament Committee's view that a further Legislative
Consent Motion would be required in the next session of the Scottish
Parliament, in order to consider the Bill, as amended, before
the Bill receives Royal Assent. We believe that it would be appropriate
to seek the views of the Scottish Parliament on the final version
of the Bill.
Other areas for inquiry
The Crown Estate in Scotland
19. During the course of our inquiry, we received
a high number of submissions commenting on the proposals in the
Bill relating to the Crown Estate Commissioners and the Crown
Estate in Scotland.[30]
We did not have sufficient time during the course of this inquiry
to consider that material in detail. On 16 February 2011, we therefore
announced a separate inquiry into the Work of the Crown Estate
in Scotland.[31] This
was welcomed by the Secretary of State for Scotland, who said
that he was "happy to keep the operation of the Crown Estate
under active review",[32]
and expressed his "complete and utter" enthusiasm to
come back to the issue at a future stage.[33]
The Scottish Parliament Committee on the Scotland Bill also welcomed
this inquiry as an "important development".[34]
Devolution issues and acts of the Lord Advocate
20. As the Scottish Parliament Committee noted, during
the passage of the Bill, the Advocate General for Scotland brought
forward proposals to deal with devolution issues and acts of the
Lord Advocate.[35] However,
the Scottish Parliament Bill Committee did not feel that there
had been adequate time for all interested to scrutinise what was
being proposed.[36] It
subsequently recommended that following further work on these
proposals, the Scottish and UK Governments and Law Officers should
report back to the Scottish Parliament in the new session, and
that a further Legislative Consent Motion, on this particular
issue, be considered then.[37]
We agree with the Scottish Parliament Committee that there
has not been sufficient time to adequately scrutinise devolution
issues and the acts of the Lord Advocate. We agree that this should
be the subject of a further Legislative Consent Motion to be considered
by the Scottish Parliament in the new session.
The Electoral System
21. We also received a submission in relation to
the electoral system for the Scottish Parliament. This is an issue
to which we may wish to return in due course.
3 Bill 115 2010-11 and CM 7973 Back
4
Commission on Scottish Devolution, Serving Scotland Better:
Scotland and the United Kingdom in the 21st century.
June 2009 Back
5
HC Deb 27 January 2011, col 467; HC Deb 7 March col 665; HC Deb
14 March, col 49; HC Deb 15 March, col 169 Back
6
Scottish Affairs Committee, Commission on Scottish Devolution,
Third Report of Session 2009-10, HC 255 Back
7
Justice Committee, Devolution: a decade on, Fifth Report
of Session 2008-09, HC 529. 24 May 2009 Back
8
House of Lord Select Committee on the Barnett Formula, First
Report, Session 2008-09, HL 139. 17 July 2009 Back
9
The formal term at the time of writing is "Scottish Executive,"
but the Bill would formalise the common usage of referring to
the Executive as the "Scottish Government". Back
10
Scotland Bill Committee, Report on the Scotland Bill and relevant
legislative consent memoranda, SP Paper 608, Session 3, 2011,
available at www.scotland.gov.uk Back
11
Ev 14 Back
12
Ron Davies, Devolution: A process not an Event,Cardiff,
Institute of Welsh Affairs, 1999. Back
13
Q 694 Back
14
Scotland Bill Committee, SP Paper 608, para 39 Back
15
Q 595 Back
16
Q 51 Back
17
Q 561. The Scottish Parliament will be dissolved on 23 March 2011
Back
18
Ibid Back
19
Further detail on the Sewel Convention is available in House of
Commons Library Standard Note 2084, The "Sewel Convention",
25 November 2005, in the Memorandum of Understanding and Supplementary
Agreements between the United Kingdom Government, the Scottish
Ministers, the Welsh Ministers, and the Northern Ireland Executive
Committee, Cm 7864, March 2010, and in Devolution Guidance
Note 10. Back
20
Memorandum of Understanding and Supplementary Agreements between
the United Kingdom Government, the Scottish Ministers, the Welsh
Ministers, and the Northern Ireland Executive Committee, Cm
7864, March 2010, para 14. Back
21
Cabinet Office, The Cabinet Manual - Draft, December 2010,
para 286, p 101. See also House of Commons Library Paper, Scotland
Bill, Research Paper 11/06, 18 January 2011, p 9 Back
22
Q 655 Back
23
Minutes of Proceedings of the Scottish Parliament, 9 December
2010, vol 4, no 40, session 3. Back
24
Scotland Bill Committee, Report on the Scotland Bill and relevant
legislative consent memoranda, SP Paper 608, Session 3, 2011,
paras 4 and 5 Back
25
The motion was passed by 121 votes to 3. Back
26
www.scottish.parliament.uk/apps2/business/orsearch/ReportView.aspx?r=6175&mode=html Back
27
Q 684 Back
28
Q 568 Back
29
Q 684 Back
30
See the list of written submissions received at the end of this
Report. Back
31
Terms of reference for this inquiry will be issued in due course. Back
32
Q 667 Back
33
Qq 670 and 671 Back
34
Scotland Bill Committee, para 165 Back
35
See Elish Angiolini QC's evidence to the Scottish Parliament Bill
Committee on 8 February, available at www.scottish.parliament.uk/s3/committees/scotBill/mop-11/sbmop11-0208.htm
Back
36
Scotland Bill Committee, para 204 Back
37
Scotland Bill Committee, para 205 Back
|
