Meeting of the Parliament (Hybrid) 23 March 2021
I should say in advance that I will take a little time in speaking to the amendments in group 1 because, although they are relatively minor in certain ways, they embody some fairly important principles about how Parliament operates.
The purpose of the bill is to incorporate into Scots law the main provisions of an international treaty. It does that by creating as direct a link as possible between the law in Scotland, including the duties of ministers and the rights of those who may wish to challenge their actions and decisions, and the text of the charter itself.
Section 1(3) of the bill allows ministers, subject to oversight by Parliament, to update the act through regulations to reflect any
“amending or additional protocols”
that may have been
“signed by the United Kingdom”.
The key point is that control remains in Scotland. It would be up to the Scottish Government and, ultimately, the Parliament to decide whether to further amend Scots law to keep pace with any changes that are made by the Council of Europe or that the UK has signed up to. Scotland could take its lead from the UK Government or decide to leave things as they are. It would be our choice.
Section 1(2A) of the bill, which was added at stage 2 by a Government amendment, sits uneasily, in my view, with the pre-existing provisions in section 1. Subsection (2A) might be described as an automatic keeping pace provision that requires the courts to read all the main provisions of the bill through the lens of whatever reservations, declarations and so on the UK Government makes at any time. The effect is that if the UK Government changes its approach to the charter formally, by means of an international legal instrument, Scots law will change automatically, regardless of whether the Scottish Government of the day—or the Parliament—thinks that that is a good idea.
I did not get much notice of the Government’s stage 2 amendment that added subsection (2A), but I have reflected on it carefully since then. I recognise the benefit of including in the bill mechanisms to allow the resulting act to keep pace not just with changes at Council of Europe level, such as the adoption of new protocols, but with changes in the UK’s position that are expressed through a legal instrument such as a declaration or denunciation. However, I continue to believe that keeping pace should be done manually rather than automatically, so that it is always the result of decisions that are taken here in Scotland.
16:15That is why I lodged amendment 5, which would extend section 1(3) to enable the regulation-making power to be used to reflect not just amending or additional protocols but UK legal instruments, such as declarations, which are the recognised means by which a state party can fine-tune its adherence to international treaties that it has signed and ratified. If the manual keeping pace mechanism in section 1(3) is extended, it will no longer be necessary to retain the alternative, automatic keeping pace mechanism that was added at stage 2—that is, section 1(2A)—so my amendment 2 is consequential to amendment 5 and would remove subsection (2A).
Amendment 3, in the name of the cabinet secretary, adjusts the wording in subsection (2A) so that it reflects the language of the charter in describing the ways in which signatory states can fine-tune their adherence to the charter, as well as the language of the Vienna Convention on the Law of Treaties, which specifies how states can fine-tune their adherence to treaties more generally. If I had not lodged amendment 5, which provides an alternative to subsection (2A), I would have no objection to amendment 3. However, it is unnecessary, given that the same language is included in my amendment 5.
At stage 2, the cabinet secretary gave two reasons for adding subsection (2A). The first was that it takes account of two declarations that the UK made when it ratified the charter in 1998. I agree that the two declarations are important. One makes it clear that the UK considers itself to be bound by all the articles that make up part 1 of the charter. That is significant, because under article 12 member states may choose to be bound by only some of part 1. The articles that the UK has said that it will be bound by are articles 2 to 11—the articles that are being given effect by the bill. The other declaration defines the application of the charter in the various countries of the UK and in particular makes it clear that in Scotland it applies to the 32 local authorities that are constituted under section 2 of the Local Government etc (Scotland) Act 1994.
I agree that there is a case for taking account, in the bill, of those two UK declarations, so I propose that we write them into the definition of “the Charter Articles”. That would be the effect of amendment 1.
The cabinet secretary’s second reason for adding subsection (2A) was to avoid the risk of the bill being challenged, either under section 35 of the Scotland Act 1998 or on the ground of legislative competence. I do not agree with the Scottish Government’s assessment of the risks. No Scottish Parliament bill has ever been challenged under section 35 of the Scotland Act, which gives the secretary of state the power to block a bill from being submitted for royal assent, and I have seen no indication that the UK Government is contemplating using that power in this instance or indeed that the UK Government has expressed concerns about the bill’s compatibility with
“international obligations or the interests of defence or national security”.
I, along with the people who have assisted me, have thoroughly reviewed subsection (2A), and we do not consider that it is needed from a legislative competence perspective. I note that the Presiding Officer assessed the bill’s provisions as being within the Parliament’s legislative competence when it was introduced.
Even if there were a theoretical risk of challenge to the bill, such a risk would be better managed through the manual keeping pace provisions that I propose rather than through the automatic mechanism that the Government prefers. My proposed approach would enable necessary adjustments to the legislation to be made, should the need arise, while keeping the decision making here in Scotland, where it should be.
Having said all that, I have had discussions with the Government in recent days, and I am conscious that it takes a different view. I fully expect the cabinet secretary to set out that view, so I will listen carefully to what she says before I decide whether to press amendment 1 and move the other amendments in my name in this group.
I move amendment 1.