It is nice that you are celebrating Shakespeare this morning in his anniversary year.
Before Christmas, we touched on whether there requires to be a Sewel motion—that was in another context, in relation to EU law. The considerations are similar but not the same, and there are a couple of reasons for that.
If you have watched the committee proceedings in London over the past couple of days, you will have seen a discussion about whether the Human Rights Act 1998 is devolved or reserved—or neither. I think that it is neither, because schedule 4 to the Scotland Act 1998 calls the Human Rights Act 1998 “protected”. If we look at the Human Rights Act 1998 in that context, through the prism of competence, section 29 of the Scotland Act 1998 talks about the competence of the Parliament, while section 53 talks about the executive competence of the Scottish ministers, which revolves around convention rights as defined in the Human Rights Act 1998.
Where does that take us? If the UK Government’s proposal is to repeal the Human Rights Act 1998, that will necessitate a change to schedule 4 to the Scotland Act 1998, which is where we find the protected areas. They are mentioned in section 29—I will quote from my old and worn copy of the Scotland Act 1998—which states that a provision is outside the competence of the Parliament if
“it is in breach of the restrictions in Schedule 4”.
If the Human Rights Act 1998 is taken out of schedule 4 and not replaced, that will extend the competence of the Scottish Parliament. If the Human Rights Act 1998 is taken out of schedule 4 but is replaced, that will create a different restriction on the competence of the Scottish Parliament.
Let us consider what that means. The Sewel convention is being legislated on in the Scotland Bill that is being debated in committee in the House of Lords, although I note that that committee’s consideration has been put off for two weeks—I wonder why that is. In putting the Sewel convention on a statutory footing, the bill says:
“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.”
If my analysis is right and the provisions in the Human Rights Act 1998—not the convention rights—are not a devolved matter but a protected matter, the Sewel convention as expressed in the Scotland Bill will not apply.
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However, that is not the whole story, is it? Devolution guidance note 10 tells us that the practice has been for legislative consent to be required if there is a change to
“the legislative competence of the Parliament or the executive competence of the Scottish Ministers.”
It is clear in paragraphs 4(III) and 9 of that note that one would expect an LCM to be lodged if there were to be a change to those fundamental competences. That is why it is necessary for the argument to be put. It could be put—indeed, it has been put—to the Ministry of Justice by the Law Society of Scotland and other bodies.
If the committee agrees with that perspective, it is essential for it to send the message to the Ministry of Justice that it should reflect on such considerations, if the consultation is published when the committee is not in existence. Of course, if the consultation does not come until after the election and the new parliamentary session has begun, that will be another matter and you will get a second bite at the cherry. However, I would say something now.