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Proposals for the devolution of further powers to Scotland - Constitution Committee Contents


CHAPTER 3: CONSTITUTIONAL PROVISIONS IN THE DRAFT CLAUSES


50.  In this chapter, we address the explicitly constitutional proposals of the Smith Commission and how they are reflected in Scotland in the United Kingdom and Part 1 of the Draft Clauses.

SPECIFIC ISSUES NOT COVERED IN THE GOVERNMENT'S PROPOSALS

51.  We note as an initial observation that the Command Paper has little to say about the 'Barnett Formula' system of allocating funding or the 'West Lothian Question'/'English Votes for English Laws' issue.[49] The party leaders' pre-referendum agreement committed the pro-union parties to the continuation of the Barnett Formula, a position also reflected in the Smith Commission's Report.[50] There have been many criticisms of the Barnett Formula. This report is not the place to rehearse those arguments, but we are concerned by the failure to address that element of the funding of devolved administrations while significant changes are being made to other elements of the funding arrangements for Scotland. What is clear is that the changes to income tax in Scotland will reduce significantly the size of the block grant to Scotland and therefore the impact of the Barnett formula.

52.  In December 2014, the UK Government published a Command Paper on The Implications of Devolution for England.[51] That paper addresses some of the issues for England of the current devolution settlements and sets out the views of the two coalition parties and calls for responses to be directed to them, rather than to the Government. As such it appears to be a mechanism for developing party policy rather than forming a consensus view or Government position. The Conservative Party subsequently announced its preference for one of the three options it put forward.[52] The Liberal Democrats and the Labour Party have not announced any further development of their policies on this issue.

THE DEVOLUTION OF CONSTITUTIONAL POWERS

53.  The Draft Clauses contain a number of proposals for the devolution of constitutional powers to the Scottish Parliament that would not have a direct constitutional impact outside Scotland, but which could have a knock-on effect on other devolved settlements or on the UK constitution as a whole. To some extent this is to be welcomed, in that—as with other policy areas—devolution allows for variation between different parts of the UK that could lead to the adoption of successful policies in other parts of the country.

54.  While variation of policies is welcome in some areas, it remains the case that some powers are reserved in order to maintain consistency across the United Kingdom.[53] In particular, we are concerned that the devolution of constitutional powers—for example, over the franchise—risks introducing variation where there should be none. Where that line should be drawn on constitutional matters should be a matter for general discussion and decided on a UK-wide basis. As Dr Elliott noted:

    "One of the points of devolution is that different parts of the country are supposed to be able to do things differently—be that on prescription charges, tuition fees or whatever. The question arises as to whether we reach a point at which we say that certain constitutional changes are so significant and cross-cutting that it does not make sense to deal with them on a devolved basis."[54]

55.  We do not make any recommendations at this stage on the devolution of particular constitutional decisions to the Scottish Parliament, but we note with concern that a wider discussion about the most appropriate level of devolution for constitutional issues was not held. This risks a piecemeal approach to constitutional change (as discussed in Chapter 2) on the basis of other devolved legislatures each seeking to catch up with Scotland, rather than changes following a nationwide debate and agreed principles. We have already seen a commitment by the UK Government to devolve to the National Assembly for Wales many of the constitutional powers promised for the Scottish Parliament in Scotland in the United Kingdom.[55]

Permanence of the Scottish Parliament and Government

56.  Draft Clause 1 provides for the 1998 Act to be amended to embody the Smith Commission's recommendation that "UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions."[56]

57.  Section 1(1) of the 1998 Act, which states that "There shall be a Scottish Parliament",[57] would be followed by the statement:

    "A Scottish Parliament is recognised as a permanent part of the United Kingdom's constitutional arrangements."

58.  A similar provision inserted into section 44 of the 1998 Act would also recognise the Scottish Government as permanent.

59.  Parliamentary sovereignty is the defining principle of the United Kingdom's constitution. By this principle, Parliament's law-making power is not subject to any permanent restrictions, and therefore Parliament cannot bind its successors. The Scottish Parliament and Scottish Government are created by statute (the Scotland Act 1998 as amended by the Scotland Act 2012) and hence subordinate to Westminster.

60.  As a matter of constitutional law, Parliament has the power unilaterally to amend the Scottish Parliament's powers (as the current process demonstrates) or to abolish these institutions altogether. In political terms the latter scenario is of course most unlikely, but as a matter of constitutional law the question arises as to whether the proposal to make the Scottish Parliament and Scottish Government 'permanent' is an attempt to restrict the legal power of a future Parliament, and if so, how such a measure would be effective. If it is not intended to have legal power, it may be wondered what its effect would be, as the 1998 Act is already considered to be a constitutional statute, cited in significant court judgments as not being liable to implied repeal (most prominently, by Lord Justice Laws in Thoburn v Sunderland City Council and Lord Hope of Craighead in BH v Advocate General).[58]

61.  The draft clause faithfully reproduces the Smith Commission's recommendation.[59] Lord Smith of Kelvin told the Scottish Parliament's Devolution (Further Powers) Committee that he was aware that a new Scotland Bill could not bind future Parliaments, but said that "we intend the law to be written in such a way that a plague of boils or something will break out if anyone ever" tried to abolish the Scottish Parliament.[60] The clear intent, then, was for a political entrenchment rather than a constitutional one. The Advocate General for Scotland acknowledged that, "In the last 16 years, there has been no question but that the Scottish Parliament and the Scottish Government are permanent and should be permanent institutions".[61] However, he told us that the Smith Commission's recommendation was "a very good signal of—'intent' is not quite the right word—recognition, perhaps, of the central importance of the Scottish Parliament and the Scottish Government in the United Kingdom's constitutional arrangements."[62] As Dr Elliott told us: "It is a statement in a statutory text of a political reality".[63]

62.  There is a question as to whether Draft Clause 1 might be open to differing interpretations. Lord Hope of Craighead, at the time Deputy President of the Supreme Court, described the Scottish Parliament in a key constitutional case as "self-standing".[64] This appears to be a markedly different understanding from that which considers the Scottish Parliament simply to be a creation of Westminster legislation. Lord Hope of Craighead has previously stated that: "Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament … is being qualified,"[65] and ruled that Acts of the Scottish Parliament which are within competence enjoy "the highest legal authority".[66] Professor Adam Tomkins, John Millar Chair of Public Law at the University of Glasgow, has argued that Lord Hope is placing "Holyrood legislation and Westminster statutes on the same constitutional plane."[67]

63.  If there are different interpretations as to the status of the Scottish Parliament in its present constitutional configuration then it is not implausible that Clause 1 could be interpreted by certain judges to be a form of entrenchment that could not then be repealed by Westminster legislation without the consent either of the Scottish Parliament or the Scottish people voting in a referendum.

64.  It is a fundamental principle of the UK constitution that Parliament is sovereign and that no Parliament may bind its successors. It is clear that Draft Clause 1 is designed to be a political and symbolic affirmation of the permanence of the Scottish Parliament and Government. While we do not consider that it imposes any legal or constitutional restriction on the power of the UK Parliament, it does create the potential for misunderstanding or conflict over the legal status of the Scottish Parliament which may result in legal friction in the future.

65.  The UK Government's February 2015 announcement on Welsh devolution included the suggestion of a similar statement of the permanence of the National Assembly and the Welsh Government in statute.[68] This would seem to raise the same constitutional issues we draw attention to above in relation to Scotland. The situation in Northern Ireland is different, however: the Belfast Agreement represents a delicate settlement, also involving the Republic of Ireland, and Parliament should take care to ensure that any change in the constitutional status of the Scottish Parliament and Scottish Government does not in any way unsettle the arrangements for Northern Ireland.

Putting the Sewel convention on a statutory footing

66.  The Scotland Act 1998 states that the powers of the Scottish Parliament do not affect the power of the Parliament of the United Kingdom to make laws for Scotland. This means that Parliament retains the power to legislate for Scotland in devolved as well as reserved matters. However, during the passage of that Act, Lord Sewel, the Scotland Office minister responsible for the passage of the Act in the House of Lords, announced that the Government "would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament."[69] This became known as the 'Sewel convention'.

67.  This commitment is repeated more fully in the Memorandum of Understanding between the UK Government and the devolved administrations:

    "The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government."[70]

68.  As a consequence of this convention it has become standard practice that, where the Scottish Government agrees with the UK Government that a Westminster Bill should include provisions on devolved matters, Scottish Ministers will promote a Legislative Consent Motion in the Scottish Parliament, consenting to the UK Government legislating in devolved areas. The convention and the Memorandum are not legally binding.

69.  The use of the convention also seems increasingly to extend even to certain reserved matters. As the Scottish Government puts it, it now covers matters "which, although reserved, affect the breadth of the devolved institutions' powers-i.e. the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers."[71]

70.  Draft Clause 2 would fulfil the Smith Commission's recommendation that "The Sewel convention will be put on a statutory footing".[72] Section 28 of the 1998 Act gives the Scottish Parliament the power to make laws; it currently concludes with section 28(7), which confirms Parliament's enduring power to legislate even in devolved matters: "This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland".

71.  Draft Clause 2 would introduce a new section 28(8), which would read:

    "But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament."

72.  Although in this way the Sewel convention will be put on a statutory footing, the measure seems to have only symbolic significance, consolidating the idea that Scottish devolution is a permanent arrangement, the terms of which will not be changed unilaterally by the UK Parliament. Aside from the general rule that Parliament is unable to bind its successors (see paragraph 59 above), the use of the word 'normally' (which is unusual in legislation and is undefined) seems to make clear that Parliament will still have the legal power to legislate for Scotland, even on devolved matters, without the consent of the Scottish Parliament. Therefore, it can be said that the new provision will recognise the existence of the Sewel convention rather than turn it into a legally binding principle.

73.  Nonetheless, since this provision will at the very least strengthen the political commitment inherent in the Sewel convention, it can be said that the powers of the Scottish Parliament would be, in political terms, more firmly beyond the unilateral competence of the UK Parliament than ever before. Professor Keating told us that the division of competences between layers of government and the recognition of that division were central to federalism and he felt that the UK now has "some kind of federal system".[73] It could be argued that Draft Clauses 1 and 2, in political terms if not legal ones,[74] are moving the United Kingdom in a federal direction.

74.  Others argued that this was another step towards an overall legalisation of the UK's constitution.[75] Hugh Rawlings, Director of Constitutional Affairs in the Welsh Government, told us that "as a result of the Smith Commission we seem to be moving towards greater legalisation of the UK constitution … are we, as appears to be [the case] at the moment, perhaps looking at legalisation of particular aspects of the constitution without regard for wider issues?"[76]

75.  Although it may have little, or no, legal effect this draft clause would risk introducing a perception that the validity of laws passed by the UK Government would be justiciable should they contravene (or be argued to contravene) the Sewel Convention as set out in statute. It is extremely unlikely that any attempt to challenge legislation in the courts on this basis would succeed[77] in the light of Parliament's enduring sovereignty and the fact that the passage of legislation itself is protected from judicial interference by parliamentary privilege.[78] It is nonetheless possible that a challenge might be made, drawing the courts unnecessarily into an area that has hitherto worked well on a conventional basis. This clause is also among those that the UK Government has proposed should be repeated in legislation relating to Wales.[79]

76.  As with Draft Clause 1, Draft Clause 2 seems unlikely to have any legal effect and is purely a declaratory statement of intent, restating the existing Sewel convention rather than attempting to make it enforceable.

77.  Nonetheless, we note that both these draft clauses appear to be moving the United Kingdom in a federal direction, attempting to crystallise by way of statute, if not a written constitution, the status and powers of the devolved institutions in a way that has hitherto not been the case. We would welcome a clarification from the Government as to whether this was their intention. This is a matter that we trust will receive further scrutiny by the House when a Scotland Bill is introduced in the next Parliament.

Powers over the composition of the Scottish Parliament and Scottish Government

78.  The Smith Commission recommended that the Scottish Parliament be given powers over its overall number of Members (MSPs) or the number of constituency and list MSPs, and powers over the disqualification of MSPs from membership and the circumstances in which a sitting MSP can be removed.[80]

79.  Draft Clause 3 proposes to extend broad competences to the Scottish Parliament on matters relating to the operation of the Scottish Parliament and Scottish Government. It does this by amending paragraph 4 of Schedule 4 to the 1998 Act to add the operation of the Scottish Parliament and Scottish Government to the list of sections of the Act that the Scottish Parliament can modify.[81] The aim is to provide the Scottish Parliament "with a greater role in setting its own internal arrangements and those of the Scottish Government."[82] Included among these new competences is the power to regulate both numbers of MSPs and rules on their disqualification.

80.  Since the proposals simply extend the power of the Scottish Parliament to regulate its own membership they do not seem to have further direct constitutional implications for the UK as a whole.

81.  The provisions may, however, have indirect implications. In general, again, these powers may well lead to demands by the other devolved legislatures to get more control over their own composition, including the power to vary the size of these legislatures. The UK Government's February 2015 Command Paper on Welsh devolution states its support for devolving similar powers to the National Assembly over its membership and elections as have been promised for Scotland.[83]

82.  Specific consideration should be given to how these powers relate to the Recall of MPs Bill 2014-15.[84] Were the Scottish Parliament to introduce radical new approaches to disqualification or removal of MSPs, very different from any provisions adopted by Parliament, would the Scottish regime create pressure for further reform of the UK Parliament or the other devolved legislatures?

Elections

83.  Draft Clauses 5-9 propose powers for the Scottish Parliament over the administration and conduct of Scottish Parliament and local government elections in Scotland, electoral franchise and registration, campaign and controlled expenditure, the Electoral Commission and the Boundary Commission for Scotland in relation to Scottish Parliament constituency boundaries.

84.  These proposals build upon the additional powers (not yet in effect) over the conduct of elections accorded to the Scottish Ministers in the Scotland Act 2012.[85] Powers over the conduct of elections were recommended by the Smith Commission,[86] although the provisions set out in Draft Clauses 5-9 are considerably more detailed than the treatment they received in the Commission's report.

85.  Notably, Draft Clause 6 provides for legislative competence in relation to the franchise for elections to the Scottish Parliament and local government elections in Scotland to be devolved. This provision has been preceded by a statutory instrument allowing the Scottish Parliament to enfranchise 16 and 17 year olds in time for the next round of these elections in May 2016 and May 2017 respectively.[87] As noted in our report on the draft statutory instrument,[88] the provision for control over the franchise for local government elections in Scotland goes beyond the Smith Agreement, albeit for understandable reasons.[89] Draft Clause 6 would give the Scottish Parliament much wider powers to vary the franchise for these elections; the franchise age is the most prominent element of this, but it could presumably allow variation in the enfranchisement or otherwise of non-British citizens living in Scotland,[90] and of British citizens living abroad who were previously electors in Scotland.[91] The UK Government has proposed that the National Assembly for Wales should have the same powers over the franchise as the Scottish Parliament.[92]

86.  If there are elements of the constitution that should not be devolved so as to ensure consistency across the UK (see paragraph 54 above), it could be argued that the franchise should be one of them. It may appear incongruous if new categories of person are enabled to vote in Scottish Parliament and local government elections but not in Westminster elections or local government elections outside of Scotland. This may pressurise Parliament to make similar adjustments to the franchise for UK elections to maintain consistency across the UK. There is an argument that fundamental changes to the franchise should result instead from a UK-wide debate about what the franchise should be, or a more principled delineation of which body or bodies should have the power to decide the franchise for different polls. That this power has been partially devolved in Scotland without such a debate, and that further powers would be devolved under this draft clause and the proposals for Welsh devolution, are symptoms of devolution being treated in a piecemeal manner, without proper consideration of the wider UK constitution. As we noted in our report on the draft statutory instrument, this process stands in contrast to the change in the voting age in the UK in the 1960s, which followed two Commission reports, and the consideration of the issue by a Constitutional Convention in the Republic of Ireland.[93]

87.  We note again our concern that power over constitutional matters is being devolved with no discussion as to whether such fundamental constitutional issues are better dealt with in a consistent manner across the UK.

88.  A particular difficulty that may arise relates to prisoner voting rights and the European Convention on Human Rights. The Scottish Parliament cannot make laws that are incompatible with Convention rights.[94] Given that the UK's current blanket ban on prisoners voting is deemed to be in contravention of the Convention,[95] there is a risk that any future legislation by the Scottish Parliament that purports to extend the franchise but which does not enfranchise prisoners in line with the recent judgments taken by the European Court of Human Rights[96] would itself be incompatible with Convention rights and could be struck down.[97] The Scottish Parliament may find its ability to amend the franchise for Scottish parliamentary and local government elections constrained by its human rights obligations. The UK Government should set out its view of how these powers could be exercised within the Scottish Parliament's restricted competence.

89.  Draft Clause 7 would extend the legislative competence of the Scottish Parliament to include campaign expenditure and controlled expenditure in relation to elections to the Scottish Parliament, and allow the Scottish Parliament to amend the rules for campaigning by political parties and non-party campaigners in the run-up to Scottish Parliament elections. There are, however, important limits. For example, the regulation of political parties, including donations to political parties, would remain reserved. Also, as stated in Scotland in the United Kingdom, "UK legislation will prevent the Scottish Parliament deciding that general elections should be held on the same day as general elections to the UK Parliament, European Parliament or local government elections in Scotland".[98]

90.  Since these powers affect Scottish elections and the powers of the Scottish Parliament only, they will not have direct constitutional implications for the wider UK. These powers are among those that the UK Government supports being devolved to the National Assembly for Wales.[99]

91.  As noted in Chapter 2, consultation is a vital part of an effective process for constitutional change. When bringing forward a bill implementing these Draft Clauses, the Government should set out the extent to which the views of the Electoral Commission, Scottish Assessors Association, Boundary Commission and Local Government Boundary Commission have been taken into account in formulating these proposals and in considering possible unforeseen consequences. Similarly, the views of the Law Commission and Scottish Law Commission should be sought as to how these proposals relate to the recent major inquiry into electoral law and practice conducted by the Commissions.

92.  One notable provision of constitutional significance is Draft Clause 4. This would require certain types of electoral legislation—legislation amending the franchise, the electoral system or the number of constituency and regional members for the Scottish Parliament—to be passed by a "super-majority", i.e. a two-thirds majority of the Scottish Parliament.[100] One aim is to ensure that electoral laws are not changed for the advantage of a particular party. The UK Parliament is able to impose such a measure upon a subordinate legislature which will be bound by this in law; it does not purport to affect the legislative power of the UK Parliament itself. As with other provisions in the Draft Clauses, this may lead to calls for similar provisions for the UK Parliament,[101] although any such move would be limited by the fact that one Parliament cannot bind its successors.[102] In our report on the Process of Constitutional Change, we did not recommend that any new parliamentary procedures such as super-majorities should be introduced for constitutional legislation in the UK parliament.[103]


49   We also noted the absence of any provisions relating to these issues in our report on the last Scotland Bill: Constitution Committee, Scotland Bill (17th Report, Session 2010-12, HL Paper 184), para 31. Back

50   Smith Commission, Report, para 95(1) Back

51   First Secretary of State, The Implications of Devolution for England, Cm 8969, December 2014: https://www.gov.uk/government/publications/implications-of-devolution-for-england [accessed 17 March 2015] Back

52   'William Hague unveils plans to stop Scottish MPs voting on English issues', The Guardian, 3 February 2015: http://www.theguardian.com/uk-news/2015/feb/03/william-hague-plan-bar-scottish-mps-voting-english-issues [accessed 25 February 2015] Back

53   The UK Government list of "Issues to be Considered in moving from a Conferred to a Reserved Powers Model" starts with a similar point about where consistency is needed: Powers for a purpose, Annex D. Back

54    Q6 Back

55   Powers for a purpose, Chapter 2 Back

56   Smith Commission, Report, para 21 Back

57   Scotland Act 1998, section 1(1) Back

58   Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); BH & Anor v The Lord Advocate & Anor (Scotland) [2012] UKSC 24 Back

59   Smith Commission, Report, para 21. Lord Smith's foreword was phrased differently; the Draft Clause reflects the recommendation rather than the foreword. Back

60   Oral evidence taken before the Devolution (Further Powers) Committee of the Scottish Parliament, 2 December 2014 Back

61   Oral evidence taken on 11 February 2015 (Session 2014-15),  Q86; see also  Q9 (Dr Mark Elliott) Back

62   Oral evidence taken on 11 February 2015 (Session 2014-15),  Q86 Back

63    Q9 Back

64   AXA General Insurance v Lord Advocate [2011] UKSC 46, para 46 Back

65   Jackson v Attorney General [2006] 1AC 262, per L Hope at p 303 para 104  Back

66   AXA General Insurance v Lord Advocate [2011] UKSC 46, para 46 Back

67   Adam Tomkins, 'Confusion and Retreat: The Supreme Court on Devolution', UK Constitutional. Law Association Blog, 19th Feb 2015: http://ukconstitutionallaw.org/2015/02/19/adam-tomkins-confusion-and-retreat-the-supreme-court-on-devolution/ [accessed 2 March 2015]  Back

68   Powers for a purpose, para 2.2.4 Back

69   HL Deb, 21 July 1998, col 791 Back

70   Cabinet Office, 'Devolution: Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee', October 2013, para 14: https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/316157/MoU_between_the_UK_and_the_Devolved_Administrations.pdf [accessed 17 March 2015] Back

71   Key Facts on the Sewel Convention: http://www.scotland.gov.uk/About/Government/Sewel/KeyFacts [accessed 25 February 2015] Back

72   Smith Commission, Report, para 22 Back

73    Q4 Back

74    Q4 (Dr Mark Elliott) Back

75   Written evidence on inter-governmental relations from Dr Andrew Blick (IGR0006) Back

76   Oral evidence taken on 21 January 2015 (Session 2014-15),  Q54 Back

77    Q9 (Dr Mark Elliott) Back

78   As recently confirmed by the Supreme Court in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 Back

79   Powers for a purpose, 2.3.10 Back

80   Smith Commission, Report, para 26 Back

81   Scotland in the United Kingdom, para 1.3.1 Back

82   Scotland in the United Kingdom, para 1.3.2 Back

83   Powers for a purpose, paras 2.2.10-2.2.17 Back

84    Recall ofMPs Bill [HL Bill 94 (2014-15)] Back

85   Scotland Act 2012, Part 1 'The Parliament and its powers' Back

86   Smith Commission, Report, paras 23 and 24(4) Back

87   Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015 Back

88   Constitution Committee, Draft Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015 (9th Report, Session 2014-15, HL Paper 119) Back

89   See HL Deb, 26 February 2015, cols 1769-70  Back

90   The Scottish Parliament's franchise currently includes all EU citizens and those Commonwealth citizens with the right to remain in the country; the UK parliamentary franchise does not include most non-British EU citizens. Back

91   At present Britons are able to register as electors for the first fifteen years after they were last registered at a UK address. Back

92   Powers for a purpose, para 2.2.15 Back

93   Constitution Committee, Draft Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015, para 10. In the Republic of Ireland, a referendum is due to be held on the voting age, a requirement for amendments to the country's constitution. Back

94   Scotland Act 1998, section 29(2)(d); the same restriction applies to the National Assembly for Wales under the Government of Wales Act 2006, section 81. Back

95   See Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, Draft Voting Eligibility (Prisoners) Bill, (Report, Session 2013-14, HL Paper 103, HC 924), Chapter 3 Back

96   Scoppola v Italy (No.3), 22 May 2012; and see Frith and others v UK, August 2014 and McHugh and others v UK, February 2015. Back

97   As shown in the UK Government's inability issue to a Human Rights Act s.19 'statement of compatibility' in relation to the House of Lords Reform Bill [Bill 52 (2012-13)] because it dealt, in part, with the franchise. Back

98   Scotland in the United Kingdom, para 1.4.4. See also Smith Commission, Report, para 24(4) Back

99   Wales Office, Powers for a purpose, paras 2.2.10-2.2.17 Back

100   See Smith Commission, Report, para 27 Back

101   See  Q8 (Dr Mark Elliott) Back

102   The UK Parliament has included a two-thirds majority requirement in section 2 of the Fixed-term Parliaments Act 2011 (required to call an early election without a vote of no confidence in the Government). There are key differences however: the super-majority does not relate to a stage in the law-making process; and the UK Parliament could, with a simple majority, remove the requirement for the super-majority, while the Scottish Parliament could not remove the super-majority requirement in Draft Clause 4. Back

103   Constitution Committee, The Process of Constitutional Change, para 99 Back


 
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