The Act of Union Bill 2018

Tomorrow (Tuesday October 9th, 2018) will see the First Reading of a Private Peers Bill in the House of Lords entitled Act of Union Bill. In this article I will attempt to explain the contents of the Bill to you and what it could mean for Scotland.

(8 hours into writing this I can finally post it, so please see my fundraising thing below).

Firstly I must point out that a Private Peers Bill is the Lord’s equivalent of a Private Members Bill introduced in the House of Commons and these rarely progress very far. In order to be passed into law it would have to proceed through each stage in the Lords and Commons in the same manner as any other Bill.

You can read the full text of the Bill here.

Who is behind the Bill?

The Bill is being introduced by Lord Lisvane (Robert Rogers) who is a crossbench peer (essentially not affiliated to a particular party but he was personally nominated for his peerage by David Cameron).

The Bill is the result of 3 years of work by the Constitution Reform Group (CRG). The CRG is lead by a steering committee comprising of the Marquess of Salisbury, Caroline Roberts, Daniel Greenberg, David Burnside, David Melding, Gisela Stewart, Lord Lisvane, Lord Hain, Shana Fleming, Sir Menzies Campbell, Joanna George and Sir Paul Silk.

What does the Bill propose?

The Bill starts off with a brief summary of its main purpose which states:

A Bill to provide a renewed constitutional form for the peoples of England, Scotland, Wales and
Northern Ireland to continue to join together to form the United Kingdom; to affirm that the
peoples of those nations and parts have chosen, subject to and in accordance with the provisions of this
Act, to continue to pool their sovereignty for specified purposes; and to protect social and economic rights for citizens.
For the rest of this article when I refer to a constituent nation or part of the United Kingdom I will mean England, Scotland, Wales or Northern Ireland.
The first point of interest comes in section 1 (4) which says that England, Scotland, Wales and Northern Ireland will remain a part of the United Kingdom until the majority of the people in that nation or part vote to leave in a referendum. So straight away we see that the Bill does not stop us or the other nations or part from holding an independence referendum.
That being said section 1 (6) could be worrying as it says:
Where this subsection applies, the Secretary of State must lay before Parliament such proposals to give effect to the wish expressed in the relevant referendum under subsection (5) as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of England, Scotland, Wales or Northern Ireland (as the case may be).
As is usual in Bills the language used is rather vague but it could be argued that it means that in the event of a Yes vote for independence it would ultimately have to be approved by the UK Parliament. But on the other hand it could simply mean that a withdrawal agreement would need to reached.
Further complicating matters for Northern Ireland is section 1 (7):
In the case of Northern Ireland, proposals under subsection (6) must also be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.
Section 2 (1) sets out the “principal purposes of the United Kingdom” which it lists as:
  1. The rule of law and equality before the law.
  2. The protection of fundamental rights and freedoms.
  3. Defence of the realm and the conduct of foreign relations.
  4. The promotion of tolerance and respect.
  5. Equality of opportunity.
  6. Provision of a safe and secure society.
  7. Provision of a strong economy.
  8. Protection of social and economic rights, including provision of access to education and health and other social services (including the National Health Service).
  9. Benefiting from shared history and culture.

Part 2 of the Bill (which comprises sections 3 to 7) refers to the rules and procedures around Central Policy Areas, we will discuss what these Central Policy Areas are later but for now think of them as what things will be reserved to the UK Parliament. There isn’t really much to note about this part of the Bill at this time but feel free to read it yourself.

Part 3 (sections 8 to 14) refers specifically to England and in particular the options of setting up either an English Parliament or putting in place a system of English Regional Devolution depending on which option receives the most votes in the commencement referendum (more on this referendum later)..

Section 8 explains that this part of the Bill makes provision for a directly elected English Parliament should the majority of the people of England vote for one in the commencement referendum.

Section 9 (2) says that Members of the English Parliament will be elected for the same constituencies as the current English Westminster ones meaning that there would be (as it stands currently prior to any boundary changes) 533 Members of the English Parliament.

Section 10 lays out the provision that the English Parliament will have legislative competence over any matter that is not within a central policy area (again I will be listing those later).

Section 11 introduces the alternative option of Regional Devolution. Should the majority of the English people vote for this option this would see the UK Parliament being the legislative body for all English non central policy area matters. This section also gives powers to cities and regions in England to establish arrangements for devolved government so essentially regional assemblies.

Section 12 essentially upholds the current EVEL rules where only English Members of the UK Parliament would be able to vote on English devolved matters.

Sections 13 & 14 set out the rules and procedures for English cities and regions to take control of devolved matters with the main point being that separate local referenda would need to be held to allow this.

Moving onto part 4 of the Bill we come to the Scotland specific sections (15 to 19).

Section 15 states that the Scotland Act 1998 would be amended to give the Scottish Parliament and the Scottish Government legislative competence over all matters except those central policy areas reserved to the UK Parliament.

Section 16 concerns elections to the Scottish Parliament and in particular conferring the powers currently held by the Secretary of State under sections 12 (Power of the Scottish Ministers to make provision about elections) and 12A (Power of the Secretary of State to make provision about the combination of polls) of the Scotland Act 1998 to Scottish Ministers.

Section 17 would repeal section 35 (Power to intervene in certain cases.) of the Scotland Act 1998. This would prevent the Secretary of State being able to make an order to the Presiding Officer of the Scottish Parliament prohibiting a Bill being passed for Royal Assent if they had grounds to believe that it would be incompatible with any international obligations or the interests of defence or national security, or indeed any bill which would make modifications to the law as it applies to reserved matters where the Secretary of State had reasonable grounds to believe it would have an adverse effect on the operation of the law.

Section 18 of the Bill would repeal section 58 (Power to prevent or require action.) of the Scotland Act 1998. Basically this removes the power of the Secretary of State to order a Member of the Scottish Parliament to desist from introducing a piece of subordinate (secondary) legislation.

Section 19 refers to Public Money in Scotland. It would repeal the following parts of the Scotland Act 1998:

  • Section 64 (4) and 64 (5) – (payment of designated receipts from Scottish Consolidated Fund into the Consolidated Fund)
  • Sections 66, 67 and 67A – (borrowing by Scottish Ministers)
  • Section 68 – (borrowing by statutory bodies)
  • Section 72 – (accounts of loans to Scottish Ministers)

I’ll be going into financial implications later but for now if you wish you can read the relevant sections of the Scotland Act 1998 by clicking on the links in the section numbers.

Parts 5 and 6 (which include sections 20 to 24) are very very brief (especially the Northern Irish part) but provides for the following amendments to the Government of Wales Acts:

  • Providing for matters concerning elections to the Welsh Parliament / Senedd Cymru to be legislated by the Welsh Parliament / Senedd Cymru itself.
  • Removing powers of Parliament to intervene in the affairs of the Welsh Parliament / Senedd Cymru.
  • Removing powers of Government to intervene in the affairs of the Welsh Government.
  • Removing controls on payments out of the Welsh Consolidated Fund.
  • Removing existing controls on borrowing by Welsh Ministers.

I find it highly interesting that a lot of detail was put into the Scottish section and not the Welsh or Northern Irish ones.

Now we move onto Part 7 (sections 25 to 34) of the Bill which concerns the role of the UK parliament and again we will have 2 options in the commencement referendum namely:

  • Abolish the House of Lords, or
  • Restructure the House of Lords

Let’s deal first with sections 25 to 30 which would apply if the majority voted to abolish the House of Lords.

Section 25 introduces the principles of the part while section 26 outlines the restructuring overview.

Section 26 (1) states that the House of Commons will be known as the United Kingdom Parliament (UK Parliament).

Section 26 (3) states that a scrutiny committee will be set up as detailed in section 29 to oversee the UK Parliament with delegates elected by the subnational Parliaments.

Section 26 (4) states that a scrutiny committee will be set up for each of the subnational Parliaments which will be constituted by the Members of the UK Parliament elected by the peoples of that nation or part of the UK in accordance with section 30.

Section 26 (5) defines subnational Parliaments as:

  • The English Parliament.
  • The Scottish Parliament.
  • The Welsh Parliament / Senedd Cymru
  • The Northern Ireland Assembly

Section 27 goes on to describe the make-up, role and function of the UK Parliament.

27 (2) states that the UK parliament will consist of 146 members from the 4 nations or parts of the United Kingdom. (No breakdown of this figure seems to be available).

This UK parliament would have exclusive legislature competence over the Central Policy Areas (again I’ll be listing those later) but all other matters would be devolved to the subnational Parliaments.

Sections 27 (5) and 26 (6) worry me quite a bit:

(5)
The UK Parliament continues to exercise the authority of the Sovereign Parliament of
the United Kingdom.
(6)
Nothing in this Act diminishes or otherwise affects the extent of that Sovereignty
27 (8) could also be worrying as in so much so that they could amend this anytime they wanted:
(8) For the avoidance of doubt, it is open to the UK Parliament to pass Acts of Parliament
amending or repealing this Act.

Section 28 lays out the procedure for abolishing the House of Lords.

Section 29 would set up the UK Parliament Scrutiny Committee. 29 (1) says that each of the subordinate (sheesh I really hate that word) Parliaments would elect members to it. 29 (2) and (3) defines their role.

Section 30 says that the elected Members of the UK Parliament will act as the scrutiny committee for their nation or part’s subordinate Parliament.

So basically in our case if the option to abolish the House of Lords was chosen it would mean that elected MSPs would oversee (and have to approve) the work of the UK Parliament and the Scottish Members of the UK Parliament would oversee the work of Holyrood (and likewise have to approve).

Moving on to sections 31 to 34 which would apply if the commencing referendum was to return a majority in favour of Restructuring the House of Lords rather than abolishing it.

The restructuring overview in regard to the scrutiny committees for the subordinate Parliaments would apply as above but in respect of the UK Parliament we would see the following:

Section 33 would see the House of Lords reduced to 392 members (292 elected and 100 appointed).

Now 33(2)(a) & (b) seem to contradict each in regard to elected members so I’m wondering if there is a typo so specifically this:

(a) each member shall be elected for a single term of 15 years;
(b) elections shall be held at intervals of 5 years
In contrast 33 (7) states a maximum term of 15 years for unelected members.
Section 33(4) states that unelected members must be independent from any form of government, have no association with any political party and are able to contribute knowledge and experience of a wide range of commercial, professional, cultural and social issues.
33(5) states that unelected appointments would be made by the Prime Minister of the UK but would require the approval of the leader of any party that had more than 2 seats in the UK Parliament.
I suspect that there was a typo in the bill and elected members can only serve 5 year terms and unelected members 15 years.
In order to get this article published in a timely manner (I’ve already been working on this for nearly 7 hours) I will save Part 8 (sections 35 to 47) “Public Money” for another post. Note that the Bank of England will be renamed the Bank of the United Kingdom (Bank UK).
Likewise with the small Parts 9 & 10 (sections 48 to 52) which cover Defence & Security and Home affairs.
And now we are onto Part 11 which is one of the most important parts of this whole bill. This discusses the Commencement Referendum.
If by chance this Bill ever receives Royal Consent it would also require a referendum to be held before it could be enacted.
This referendum would require:
  • At least 65% of the whole of the UK to vote for it, and
  • A majority of each of Scotland, England, Wales and Northern Ireland to vote for it.

Section 57 states that this referendum would have to take place between 10 and 14 months after the Bill gaining Royal Consent.

The Referendum questions would be:

Do you want the constitutional arrangements set out in the Act of Union 2018 to come into effect?
Yes / No
Which of the following arrangements do you want for Parliament? (You can only choose one)
(a)
The abolition of the House of Lords; or
(b)
The restructuring of the House of Lords
And additionally voters in England would be asked:
Which of the following arrangements do you want for England? (You can only choose one)
(a)
The establishment of an English Parliament; or
(b)
The arrangements for English regional devolution.
Note that only those who would be eligible to vote in a UK General Election would be allowed to vote in this referendum.

So you promised to tell us what the Central Policy Areas are.

Yes indeed, this list of 24 things would be the reserved areas and everything else would be devolved (note that I’ll expand on some things in another post).

  • The Crown.
  • The United Kingdom.
  • Parliament.
  • The Following Acts.
  • Ministers of the Crown.
  • Foreign Affairs.
  • International treaties and conventions.
  • Membership of the European Union.
  • The European Economic Area.
  • Defence.
  • NATO.
  • Human Rights.
  • Central Bank Functions.
  • Monetary Policy.
  • Government Borrowing (Will be addressing exceptions in a future post).
  • Currency.
  • Regulation of Financial Services.
  • Taxation (Again more to come in a future post as we will have extra tax powers).
  • The Supreme Court.
  • National Security.
  • Nationality.
  • Immigration.
  • Extradition.
  • Emergency Powers (Okay wtf does this one mean??).
  • The Civil Service.
  • Political Parties.

I’m approaching 2500 words and 8 hours on writing this, I’ve covered the main things that will affect Scotland.

But I have to reiterate that these type of Bills never get anywhere.

Saying that, if we could never get independence then I’d like to see a lot of these proposals implemented as it is definitely better than the status quo but independence will always always be the preferred choice.

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16 comments

  1. Interesting Article Mark…as we previously discussed, this Bill has a few curtailments that could be detrimental to Scotland in the long run …ie The Crown being reserved, Monetary Policy, International treaties, regulating the financial sector, Supreme Court, Emergency powers ( MI5/6 terrorist & perceived threats to the UK)=(Think Catalonia & Spain) defence, EEA, Foreign affairs, immigration, human rights & that’s just a taster ….then there’s the little matter of Independence .. This proposed bill is a quagmire for Scotland’s interests & future sovereignty & is an attempt to circumvent the potential will of the people of Scotland to seek independence.

    1. There is a lot bad about it, but also some better things compared to the status quo. But don’t take that to mean that indy isn’t a better option. We need a referendum before March 29th and full independence before 2021.

      1. When you deal with such political vermin in WM your liable to get a nasty surprise…. The referendum / independence suggestion l agree with.

  2. The Article of Union bill PDF has been taken down. Please tell me you saved a copy… I’d like to read it please.

    1. I’ve just noticed that myself, and no stupidly I didn’t. It should be up on the Parliament website later. I’ll post the link when it is.

      1. Thanks, very interesting.

        “I suspect that there was a typo in the bill and elected members can only serve 5 year terms and unelected members 15 years.”

        I believe the Bill is correct as written and the intention is to elect roughly a third every 5 years, similar to some English councils(partial elections every 2 years for six year terms).

        The most astonishing part is 11, the Commencement Referendum.

        (a)a majority consisting of at least 65% of the votes cast in the United Kingdom as a whole; and
        (b)a majority of the votes cast in England; and
        (c)a majority of the votes cast in Scotland; and
        (d)a majority of the votes cast in Wales; and
        (e)a majority of the votes cast in Northern Ireland.

        Either they want to fail or they’re very serious about making a meaningful offer to all.

  3. Mark

    DANGER!!!!!

    You have made the mistake of reading the bill like an everyday person….You need to read the bill like a lawyer.

    This Bill is catastrophic for Scotland…and thats before any Henry VIII ministerial rewriting…That is once it is a bill and not the Act of Union, it is open for amendment by minsters as part of Brexit measures.

    Scotland should have learnt the lesson from Westminster’s Brexit bill…Consent no longer means what it does in every day language….Westminster just redefined it to mean any and all outcomes ( non consent, silence, or consent).

    EG: Your very first point about section 1 (4) does not mean Scotland can leave. It actually has the mechanism to trap Scotland permanently. I can see numerous mechanisms to achieve it:

    1 – Westminster just needs to define that a referendum as only valid when Westminster grants it (and they never will)
    2 – “people in that nation” can be manipulated to exclude Scots or include any other population…Just give them a digital Scottish address and English can be classified Scottish

    Do not interpret any Westminster action as benign…Scotland should have learnt by now to always be sceptical.

    1. Section 1 (4)

      Notice the weird inclusion of the term PART? in the clause
      “nation or PART vote to leave in a referendum”

      Don’t think Westminster won’t use the “PART” to screw the referendum.

      @Baroness_Nichol
      Shetland Islands which own 90% of our common oil voted to REMAIN with the U.K. in the Scottish Referendum. No more twist….
      5:26 AM – 9 Oct 2018

      What happens to a Scottish independence referendum if Westminster starts excluding the boarders and Islands?

  4. Good explanation for simpletons like me. With regards to Emergency Powers, check out the Civil Contingencies Act (which we know is being ramped up at the moment). It is the renewed version of the Emergency Powers Act. Part 2 is the key bit and gives the Sec. State for Scotland unrivalled powers in the event of an emergency that threatens the sanctity of the state, such as erm…..UDI.

  5. It doesn’t and never could deal with the problem of party political control. If any London controlled political party gained control of the Scottish Parliament under any UK constitutional setup then in reality there would be no devolution for Scotland as that party would still be controlling Scotland from London or even in the case above from the English Parliament itself.
    For example if we end up with a Labour Government in the English and Scottish Parliament then both Parliament would be run and controlled by Labour from the English Parliament.
    Not seeing the above as being any different to what we have now.

  6. I suspect the confusion over Lords Elections every five years is that a third of elected peers would be up for election every 5 years, those elected to serve for 15 years.

    This is fairly common in elections to upper legislatures. The tricky bit is setting it up. I suspect the elected Lords would have to be added in stages over 15 years or some would serve shorter terms.

    But otherwise I’m with Tel, if this replaces the Act of Union we are in very dangerous territory. The ‘this is not the time’ mantra will be trotted out regularly as all this beds in. So we could find ourselves banned from an indyref for 15 to 20years if this passes.

    Devo Max it ain’t either. This is just slightly enhanced Devolution with slightly better padded handcuffs. And what about Barnett? With the loss of European structural funds Scotland could very quickly find itself unable to fund lifeline travel to and from or between the Islands at current levels for eg.

    This bill betrays the lack of SNP or PC or SF input. It is a Unionist bill through and through. Mariano Rajoy could have written it.

  7. Agree with previous comments. Westminster is a malignant force and are always on the make. This bill is no different as previous commenters have stated.

    I prefer the alternative of independence and then cooperation on things we decide to cooperate on. I can’t think of anything I would want anyone else to make decisions on my behalf. I always make the decision based on the circumstances that arise at the time, to do otherwise is to be a vassal. Scotland should have had enough of this state of affairs after 300+ years.

  8. “The UK Parliament continues to exercise the authority of the Sovereign Parliament of
    the United Kingdom.” This completely ignores the Claim of Right and the McCormick vs The Lord Advocate case in the 1950’s: “The principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law.”

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