David Cameron has strengthened the ability of the Scottish government to block Tory plans to repeal the Human Rights Act, in a move that has caused alarm in some parts of Whitehall.
A brief, little-noticed provision in the Scotland bill, which implements the findings of the cross-party Smith commission, will establish in law a convention that Westminster seeks the consent of Holyrood for legislation relating to Scottish matters.
Some senior Whitehall officials say this will effectively allow the Scottish parliament to veto Tory plans to the repeal the legislation on the grounds that Scotland’s separate legal system would make it impossible for Westminster to act without the consent of Holyrood.
The Sewel convention, established at the foundation of the devolved Scottish parliament in 1999, says Westminster should seek the consent of the Scottish parliament for “reserved”, or UK, legislation that affects Scotland.
The Scotland bill makes clear that the Scotland Act 1998, which established the Scottish parliament, will be amended to entrench the convention. The amendment will say: “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.”
The bill is likely to enter the statute book before the justice secretary, Michael Gove, introduces his plans to carry out the Tory manifesto commitment to repeal the Human Rights Act, meaning he will be obliged to seek the consent of the Scottish parliament to proceed.
Scotland’s first minister, Nicola Sturgeon, has already made clear to Downing Street that she will decline to sign a legislative consent motion under the terms of the Sewel convention to permit the repeal. Her hand will be strengthened further by the new bill.
On Thursday Sturgeon said the Scotland bill failed to deliver the commitments agreed by the cross-party Smith commission set up after last year’s independence referendum.
The bill gives the Holyrood powers to set income tax rates and bands and to keep the money in Scotland; provides the Scottish parliament with the first 10% of VAT revenues raised in Scotland; and £2.5bn of new welfare powers.
But Sturgeon said the UK government had retained vetoes on universal credit, fuel poverty support schemes and obligations on suppliers to reduce carbon emissions and home heating costs.
She said at first minister’s questions: “The UK government had a very clear test today: to deliver a bill which lived up in full, in spirit and in letter to the Smith commission. From my glance at it, [the bill] falls short in almost every area.
“The bill, for example, doesn’t contain the full welfare powers recommended by the Smith commission. In some key powers it retains, unbelievably in my view given the amount of concern that was expressed about this, a veto for the UK government on key policy areas.
“So, for example, if this parliament wants to abolish the bedroom tax, as I hope we do, the UK government would still have a right of veto over whether we could do it or not. Now I’m sorry but that is not devolution.”
David Mundell, the Scotland secretary, said the bill showed the UK government was living up to its commitments to implement the Smith commission. He said: “The government has moved quickly on day one of the new parliament to deliver on our commitment to make Holyrood one of the most powerful devolved parliaments in the world.
“Scotland will still hold on to the benefits of being part of the UK that people voted for in the referendum last September. Sharing risks and resources with the rest of the UK is good for everyone in the UK when it comes to vital matters such as pensions, currency, trade and national security.
“We made a promise to turn the all-party Smith commission agreement into law and we are now doing that at the earliest possible opportunity.”
This article was written by Nicholas Watt and Libby Brooks, for theguardian.com on Thursday 28th May 2015 14.24 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010