Scotland bill proposals risk compromising parliamentary sovereignty

Introducing the report, Lord Lang, Chairman of the House of Lords Constitution Committee, said:

"The Scotland Bill has very significant constitutional implications. We are concerned that the House is being asked to debate and scrutinise the Bill without the necessary information. The Bill creates serious risks of future disputes and instability. The House should consider whether to delay progress of 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, and how they will resolve disputes between their administrations.

"The Scotland Bill also states the permanence of the Scottish Parliament and Government in law for the first time, while setting in statute the Sewel Convention. 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.

"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 The political parties are constrained by ‘the Vow' and by the continuing absence of much still unpublished information that is need for proper debate. Parliament is therefore still unable to debate meaningfully the merits of the proposals."

What the report says

The Committee, which scrutinises all public bills for constitutional implications, echoes calls from the Economic Affairs Committee, in its recent report A Fracturing Union, for the House of Lords to consider delaying the committee stage of the Scotland Bill until the fiscal framework currently being negotiated by the Scottish and UK governments is available for scrutiny alongside the Bill.

The report adds that the House may also wish to consider a similar delay until a revised Memorandum of Understanding - currently the subject of negotiations between the devolved administrations and the UK Government - is published setting out how areas of ‘shared rule' in areas such as welfare policy will be managed. The Committee express concern that the House is being asked to scrutinise the Bill without an explanation of how the interface between the powers of the UK and Scottish governments will be managed.

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.

The report states that 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.

The Committee also once again expresses its concern that ‘the Vow' made by the leaders of the three main UK-wide political parties 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.