PR/S2/05/14/A
PROCEDURES COMMITTEE
AGENDA
14th Meeting, 2005 (Session 2)
Tuesday 22 November 2005
The Committee will meet at 10.15 am in Committee Room 2.
1. Items in private: The Committee will decide whether to consider in private, at its next two meetings, draft reports and draft standing order changes on procedures relating to Crown appointees and on Private Bill Committee assessors.
2. Review of Parliamentary Time: The Committee will take evidence in a round-table discussion from—
Bill Aitken MSP, on behalf of the Scottish Conservative and Unionist Party;
Mark Ballard MSP, on behalf of the Scottish Green Party;
Carolyn Leckie MSP, on behalf of the Scottish Socialist Party;
Alasdair Morgan MSP, on behalf of the Scottish National Party;
Margo MacDonald MSP, on behalf of the Independents’ Group
Michael McMahon MSP, on behalf of the Scottish Labour Party; and
Jeremy Purvis MSP, on behalf of the Scottish Liberal Democrats.
3. Private Bill Committee assessors: The Committee will consider written evidence from the Scottish Executive Inquiry Reporters Unit and the Scottish Parliamentary Corporate Body.
Andrew Mylne Clerk to the Committee Room TG.01 Ext 85175 [email protected]
* * * * * * * * * * *
The following papers are attached for this meeting:
Agenda item 2 Written evidence submitted to previous PR/S2/05/14/1 Procedures Committee during its “founding principles” inquiry
Agenda item 3 Correspondence between the Convener and PR/S2/05/14/2 the Inquiry Reporters Unit
Correspondence between the Convener and PR/S2/05/14/3 the SPCB
Correspondence between the Convener and PR/S2/05/14/4 the Faculty of Advocates
Note by the Scottish Executive PR/S2/05/14/5
The following papers are attached for information:
Executive response to the Committee’s Sewel PR/S2/05/14/6 Convention report (to follow)
Article from SCOLAG journal by Barry PR/S2/05/14/7 Winetrobe on the Committee’s Sewel Convention report
Letter from the Convener to the Presiding PR/S2/05/14/8 Officer on procedures relating to Crown appointees
Minutes of the last meeting PR/S2/05/13/M
PR/S2/05/13/M
PROCEDURES COMMITTEE
MINUTES
13th Meeting, 2005 (Session 2)
Tuesday 8 November 2005
Present:
Mr Richard Baker Chris Ballance Cathie Craigie Karen Gillon (Deputy Convener) Donald Gorrie (Convener) Alex Johnstone Bruce McFee
The meeting opened at 10.04 am.
1. Item in private: The Committee agreed to take item 6 in private but then to announce the outcome of the discussion in public session.
2. Review of Parliamentary Time: The Committee took evidence in a round-table discussion from—
Rev Graham Blount, Parliamentary Officer, Scottish Churches Parliamentary Office;
Andrew Cubie, former member of the Consultative Steering Group;
Iain McMillan, Director, CBI Scotland;
John Park, Assistant Secretary, STUC;
Brian Taylor, Political Editor, BBC Scotland; and
Debbie Wilkie, Director, Scottish Civic Forum.
3. Private Bill Committee assesors: The Committee took evidence from—
Alan Boyd, Director, McGrigors; and
Kelly Harris, Assistant, Shepherd and Wedderburn. 4. Procedures relating to Crown appointees: The Committee considered and agreed a draft response to a call for evidence from the Justice 1 Committee in relation to the Scottish Commissioner for Human Rights Bill.
5. First Minister’s Questions: The Committee considered a letter from the Presiding Officer inviting it to review Rule 13.7.4 in relation to First Minister’s Question Time. The Committee decided, however, that the current procedures were satisfactory and did not require further consideration.
6. Private Bill Committee assessors (in private): The Committee considered legal advice on the evidence received in the inquiry and considered what further oral and written evidence to invite. The Committee agreed to invite representatives of the Scottish Parliamentary Corporate Body (SPCB) to give oral evidence at the next meeting and to write to the Faculty of Advocates seeking clarification of its written evidence. An informal briefing with staff of the Private Bills Unit would be arranged for those members interested in attending.
7. Private Bill Committee assessors: The Convener announced the Committee’s decisions under item 6. Members were invited to send to the clerks any further questions to be put in writing to the Scottish Executive Inquiry Reporters Unit.
The meeting closed at 1.36 pm.
Andrew Mylne Clerk to the Committee
PR/S2/05/14/1 Agenda item 2 PROCEDURES COMMITTEE
Parliamentary Time Inquiry
Relevant written evidence from previous Committee’s “founding principles” inquiry
Note: This table reproduces relevant written evidence from Volumes 4 and 5 of the Committee’s 3rd Report, 2003 (Session 1). It is structured according to the main themes of the current Committee’s present inquiry.
Evidence by: Text: Volume Page Sitting patterns Angela O’Hagan, Equal “The Parliament’s decision to work in term-time, observing school holidays, is 4 235 Opportunities Commission entirely in keeping with its founding commitment to equal opportunities, and ensuring family-friendly practices for members and other workers in the Parliament.”
“EOC Scotland is of the view that the current working pattern of the Scottish Parliament is appropriate. Currently the working day of the parliament is reasonably family-friendly. … We have been aware of attempts to introduce evening or additional sittings. We would strongly oppose this as it presents an unnecessary burden on those Members and workers with caring responsibili-ties, as well as those who are within travelling distances of their constituency where they are able to continue their work outwith parliamentary sittings.” Mike Watson MSP, Convener, “Rule 5.8 requires that Parliamentary Bureau to ensure that sufficient time is set 4 275 Finance Committee aside for each of the stages of the budget process. In practice it is clear that this arrangement is not yet working as it should as many subject committees find that they have insufficient time to devote to scrutiny of the budget, given the demands of the legislative programme and other necessary work such as inquiries.”
“Sufficient time must be set aside throughout the Parliament for each of the stages 4 277 of the budget process.”
1 PR/S2/05/14/1 Agenda item 2 Evidence by: Text: Volume Page Scottish Parliamentary “Should the Procedures Committee be considering the pattern of Parliamentary 5 46 Corporate Body (SPCB) sittings and any changes from the present arrangements, as part of its inquiry then it might wish to note our views as employers of the staff in the Parliament. Staff are already fully stretched in support of the services required by the Parliament … There are also areas whose work is unseen but directly related to Parliamentary sittings, such as IT and Facilities Management … This is therefore an area of strong concern among staff of the Parliament.” Presiding Officers “One of the most significant ways of taking the Parliament to the people of Scotland 4 427 is through Members’ constituency work. Members continue to work on constituency matters and fulfil constituency engagements throughout the full parliamentary term.” CE, Angus Council “It does appear that the Parliament has established a more appropriate working 4 29, 35 pattern than Westminster. The Council welcomes the absence of “late night sittings” and, to that extent, believes that the Parliament’s routine is indeed “family friendly”. … The intention that the Scottish Parliament will keep normal business hours and take Scottish school holidays may open up membership of the Parliament. It would cause problems of access for people in employment.” Chief Executive, Falkirk “The pastoral arrangements, working patterns etc. of the Parliament are generally 4 261 Council outwith our experience although these seem to be “family friendly” – a move which is applauded, supported and followed.” Stuart Allan, Head of Law and “I think that the programming and sitting patterns of the new parliament has worked 4 272 Administration, Fife Council really well in achieving equal opportunities not only for members of the Scottish Parliament but also staff and public alike.” Judy Wilkinson , Secretary “The clear timetable and good time management enabled members of the 4 360 SAGS Committee to organise their family and business commitments and attend the hearings.” Scottish Council for “SCDI is of the view that the working pattern of the Parliament is appropriate and 5 104 Development and Industry family friendly for the organisations working with the Parliament. However, we have (SCDI) concerns that MSPs, their staff and Parliamentary staff are under considerable stress and pressure of time.” Scottish Council for Voluntary “The family friendly timetable of the Parliament has received some criticism from 5 119 Organisations (SCVO) the press, but the large number of women MSPs must in some way point to the
2 PR/S2/05/14/1 Agenda item 2 Evidence by: Text: Volume Page success of this policy. The Parliament should guard against increasing its schedule in response to criticism; this may have a negative effect in terms of women and candidates from minority groups seeking election in the future.” Scottish Trades Union Council “The need to ensure that ‘family friendly’ working practices are applied to the staff 5 394 (STUC) that service the Parliament as well as the members serving within it.” South Lanarkshire Council “Although the Parliament has made a commitment to ‘normal’ hours working (in 5 440 order to promote equal opportunities for its own members and employees), there may be occasions when evening meetings are required in order to allow people in full-time employment or education to attend.” UNISON Scotland “The meeting hours of Parliament are also a welcome step forward from the 5 483 restrictive practices of Westminster.” Balance of time between different types of Chamber business D.G.Carnegie, Member of the “I have been disappointed at the general level of attendance at many Parliamentary 4 97-98 Adult Learning Project debates. With a few exceptions such as FMQT and certain controversial debates Democracy Group when members have been instructed to the “whip” to attend, attendance could be better. FMQT is invariably very well attended with a correspondingly full Public Gallery. Whilst Question Time provides great entertainment and there is no denying its popularity with the general public, it is, at the same time, one of the least productive sessions in terms of outcome. It is the mass exodus of MSPs at the end of QT which is most frustrating for the regular observer of Parliamentary proceedings. Frequently the chamber is only around a quarter full for ensuing debates. Even more frustrating for the observer is the mass influx of absent MSPs around 4.50 pm in time for the vote at 5.00 pm on the debate of motions that they have not had the courtesy to listen to. This is all so reminiscent of Westminster.
“[…] I do not think it is asking too much to expect members to attend Parliamentary meetings in the Chamber on a reasonably regular basis for a mere one and a half days a week. This works out at only 8 hours per week. i.e. two and a half hours on Wednesday afternoons and five and a half hours on Thursday.
“[…] In my opinion, the CSG Steering Group recommendations, which were
3 PR/S2/05/14/1 Agenda item 2 Evidence by: Text: Volume Page approved without major amendment by the Parliament, offer a timetable that attempts to provide this balance [between the demands of constituents and participation in Chamber and committee business] in terms of Members meeting their various responsibilities.”
Hansard Society of Scotland “It is recognised that as the Scottish Parliament meets only two days per week in 4 310 plenary session this limits the opportunities of the Executive to make official announcements to it. It is proposed that such announcements should be made during sitting periods to Parliament, except in exceptional cases, and that on non- sitting days and during recesses copies of announcements should be provided by E-mail individually to the Presiding Officers and to all MSPs 24 hours before being circulated to the media.” Presiding Officers “There are requirements in the standing orders for business time to be set aside for 4 424 committee half days and non-Executive half days. It is our view that this is an important contribution towards power sharing within the Parliament. However, in practice the committee half days until now tend to have been scheduled by the Bureau without really tying them into a forward look at the forthcoming business. This meant that in the early part of the Parliamentary year it was difficult for the committees to find issues to discuss on their allocated half days because most committee reports had not yet been published. We therefore suggest that the working of the Bureau in scheduling committee half days might be done in closer partnership with the committees.
“Notwithstanding this, the Scottish Parliament has made a significant step forward 4 425 towards letting people other than the Executive choose the business of the Parliament.
“[…] The Parliament has failed to adapt fully to the concept of a 4-year legislative 4 426 term. In general, the Parliament, in particular the Executive, still works to an annual cycle, aiming to complete the bulk of the legislative work by each summer recess. This leads to unnecessary pressure on the Parliamentary timetable at that time. It
4 PR/S2/05/14/1 Agenda item 2 Evidence by: Text: Volume Page has also led to complaints by civic society about insufficient consultation time in between the different stages of Bills. The same can be said of Committee inquiries. Allocation of time to different speakers Alex Neil MSP to PO “Further to the School Meals Debate last week and the Point of Order that I raised I 4 410 am writing formally to ask the Presiding Officers to review the balance of time allocated to back benchers during short debates ….” PO to Alex Neil MSP “I am very much aware that during shorter debates in particular, we sometimes 4 411 have difficulty in including all the backbenchers who wish to contribute … a modest increase in the amount of time available could have solved the problem.” Scottish Parliamentary “There are occasions when the Parliament should have a voice that goes beyond 5 211- Corporate Body (SPCB) that of the political majority in the Chamber or of individual political parties. The 212 Procedures Committee might wish to consider the balance between the role of what are legitimate party interests and where the backbenchers might have more input and a greater voice on parliamentary matters.
“Understandably party political issues dominate parliamentary time, and the Procedures Committee might wish to look at opportunities to allow greater flexibility for such issues to be aired. Possibilities might include allocating occasional slots for backbench motions to be both considered and voted on, or a specific procedure for backbenchers to raise major issues affecting the Parliament for emergency debate.”
5 PR/S2/05/14/2 Agenda item 2 PROCEDURES COMMITTEE
Private Bill Committee assessors
Correspondence with the Inquiry Reporters Unit
LETTER FROM THE CONVENER
I am writing on behalf of the Committee to thank you for your letter of 4 November to the Clerk, attaching your written responses to initial questions about the above. These were considered by the Committee at its meeting yesterday.
I understand that the Clerk to the Committee, in earlier correspondence, indicated that there could be further questions that we would wish to ask of you in the light of that meeting. I now attach a list of further questions, some of which have been suggested by Committee members and others by officials who are seeking further clarification about the practical aspects of what is proposed.
There is an additional point on which I would also appreciate your view, which arises from the decision you refer to in your letter to the Clerk of 2 November, namely that the Committee’s request for oral evidence from your Unit should instead be dealt with through a written exchange. My understanding is that, because IRU reporters are civil servants, such decisions ultimately lie with Ministers. This again raises the issue of how we can secure public confidence in the ability of IRU reporters to assess objectively Private Bills to which Ministers are known to be politically and financially committed. It would be useful to know your views on this point.
As you will appreciate, the Committee is endeavouring to advance this inquiry to a tight timescale, and I would therefore be most grateful if your response to this letter could be sent to the Clerk by noon on Thursday 17 November.
Copies of this letter go to the copy-recipients of yours.
Donald Gorrie Convener 9 November 2005
REPLY BY THE CHIEF REPORTER
I refer to your letter of 9 November to me covering the request for additional written answers following the Committee’s meeting on Tuesday 8 November.
1 PR/S2/05/14/2 Agenda item 2 I am surprised by the comment concerning the need to secure public confidence in the objectivity of reporters dealing with Private Bills and also by the suggestion that this concern has been raised before. My response, which you have requested, is contained in the attached schedule together with full answers to each of the other questions.
I am copying this letter for information to the Minister for Parliamentary Business; the Minister for Transport; Andrew Mylne; PS/DD; PS/LPS; and PS/ETLLD and to the Committee mail box.
JM McCulloch Chief Reporter 17 November 2005
FURTHER QUESTIONS FOR INQUIRY REPORTERS UNIT, TOGETHER WITH THE IRU RESPONSE
Convener’s covering letter – public confidence
How can public confidence be secured in the ability of IRU reporters to assess objectively Private Bills to which Ministers are known to be politically and financially committed?
I was unaware that this issue was a matter of concern to the Committee or that it had been raised previously. As a matter of both law and practice reporters are required to act impartially and fairly in all proceedings, no matter the identity of the decision maker, or their involvement with the scheme under consideration.
Resources of IRU
Shepherd and Wedderburn (written evidence in PR/S2/05/12/4 and oral evidence on 8 November) stated that a substantial proportion of the most experienced reporters employed by the Inquiry Reporters Unit are due for retirement within the next year or so. In view of the anticipated timescale for the 3 Private Bills for which the new assessor procedures are planned, IRU’s response to this evidence would be appreciated.
The source of Shepherd & Wedderburn’s information is unknown. The Unit is presently able to call on the services of 16 reporters who are established civil servants and a further 21 reporters who are self-employed. In addition the Unit has the informal arrangement with other UK Planning Inspectorates to which reference has previously been made. The assistance that it is envisaged that the Unit will provide to the Private Bills Committee would fall within this management year and next. Two experienced reporters will reach the age of 60 during that period, one has elected to stay on as a civil servant for additional years; the other has expressed the desire to move to self- employed status on retirement. Both will thus remain available to the Unit and
2 PR/S2/05/14/2 Agenda item 2 potentially for work of this sort. In addition, a recruitment exercise is presently under way to replace a civil servant reporter who left the Unit this summer. The intention is to use that process to identify a suitable candidate, plus others who might be recruited if the need arises to backfill retirements and provided also that this can be achieved within the Executive’s staff resourcing policy.
Independence of IRU
In answer to Q5, the mechanisms used to protect the independence of reporters in their current role (in relation to a “client Department”) have been explained. What equivalent mechanisms would be needed if an IRU reporter were asked to act as assessor for a Private Bill Committee (which would be the decision maker in this context)?
It is not envisaged that such a problem would arise requiring equivalent mechanisms. The assessor would in effect be under contract to provide a service to the Private Bills Committee, but that Committee – which would retain the role of decision maker - is not the promoter of the schemes. Neither the assessor nor the Committee would have any stake in the outcome of the process, besides ensuring that it remains objective, fair and reasonable.
Number and length of hearings
Further to the answers given to QQ 10 and 11: • Can you give best estimates of the number and duration of hearings that would be envisaged in the case of an assessor dealing with a major Private Bill? In particular, would it be envisaged that there would be hearings on consecutive days?
As previously indicated it is anticipated that hearings would be held day by day until concluded. There would thus be hearings on consecutive days and, dependent on programming, there must now be the possibility of hearings for 2 of the 3 outstanding Private Bills proceeding in parallel.
• Please provide data on the number and duration of the public hearings involved in one or two recent planning inquiries that relate to projects roughly comparable in scope to the railway Private Bills shortly to be introduced.
It is difficult to draw parallels between planning inquiries and the process that is proposed to assist the Private Bills Committee. However, as the intention is to replicate the consideration given by the Committee to date, the Stirling- Alloa-Kincardine Bill stands as a proxy. Had the process that is now proposed been used in that case it is likely that around 5 days of sittings would have been required. Beyond that it is impossible to provide a categorical view because the scale of the task on the 3 remaining Private Bills where this process is proposed will only be known when the representations have been lodged and their scope considered.
3 PR/S2/05/14/2 Agenda item 2 Preliminary Stage
Under current Chapter 9A rules, the Parliament must agree to the general principles of the Bill before it can proceed to Consideration Stage – and hence any objections that relate to the whole Bill or those principles must be dealt with at Preliminary Stage. That Stage also involves preliminary consideration of all objections. • Would it therefore be helpful for an assessor also to have some input at Preliminary Stage?
The Executive’s proposal does not involve assistance to the Private Bills Committee at the Preliminary Stage.
• Alternatively, would it help if Preliminary Stage were simplified so that substantive consideration of all objections became a matter for Consideration Stage?
The same considerations apply.
Official Report
The Chief Reporter says, in answer to Q12, that reporters don’t have a service to take notes or transcripts of proceedings in planning inquiries, but envisages having an Official Report of assessor hearings – and goes on to say that the time taken to produce a summary of evidence would be reduced by the availability of the Official Report (Q14 – see also Q17). • How do reporters in planning inquiries record the information from which the summary is later compiled – do the reporters themselves just take notes of the main points as the proceedings unfold?
Yes, reporters take their own notes of proceedings.
• Would a sound-recording or video-recording of the proceedings be an adequate substitute for an Official Report for the purpose of preparing the summary?
No, experience suggests that neither is an adequate substitute for a transcript prepared by a person with experience of the subject matter, the process and the organisation involved.
• If the current ratio (of hours to prepare the summary for each hour of evidence) is 3:1, can IRU quantify how much this might be reduced if the assessor had access to the Official Report?
A significant reduction on the ratio of 3:1 is envisaged based on use of the Official Report but it is not possible to be definitive in advance. The scale of the reduction would depend, in part, on the complexity of the issues and the evidence of the parties.
4 PR/S2/05/14/2 Agenda item 2 • How quickly after each hearing meeting would the assessor need access to the Official Report of that meeting? If there were a series of hearings over consecutive days, how quickly after the series was concluded would the reporter need access to all the Official Reports of those hearings?
There would be no need for the entire Official Report to be available before work could start on drafting the advice for the Committee. Work could thus start on the assessor’s report immediately the hearings concluded on the assumption that the Official Report of the early days was then available.
5 PR/S2/05/14/3 Agenda item 2 PROCEDURES COMMITTEE
Private Bill Committee assessors
Correspondence with the Corporate Body
LETTER FROM THE CONVENER
I am writing to you in your capacity as chair of the Scottish Parliamentary Corporate Body to give the SPCB the opportunity of giving evidence in the above inquiry.
As you know, the Committee has been asked by the Bureau to consider the Executive’s proposal for changes to the Rules to enable Private Bill Committees to appoint assessors to hear and report on Consideration Stage evidence.
The purpose of my invitation is to enable the SPCB to express its views on the implications that the Executive proposal might have for matters that fall within the SPCB’s remit. In particular, the proposal could have implications for the staff and other resources of the Parliament, and the Committee would therefore be interested in the SPCB’s view of the support that it might provide to assessors should the proposal be endorsed.
In this connection, you will no doubt be interested in the evidence the Committee has received from the Executive’s Inquiry Reporters Unit (SEIRU), a copy of which I attach. In the light of last Tuesday’s meeting, I have now written again to SEIRU with further questions, asking for any further response by this Thursday, in time for circulation to the Committee for its next meeting.
If the SPCB wished to give oral evidence to the Procedures Committee, this would have to be at that next meeting, which will take place on Tuesday 22 November. I apologise for not being able to offer you more advance notice or choice of dates but, as you will appreciate, this is a product of the tight timescale for the inquiry to which we have agreed to adhere. In addition, we have already invited a number of witnesses to give evidence at that meeting (in connection with another inquiry). Since I am aware that the SPCB normally meets at 10.30 am on a Tuesday, I imagine that if an SPCB member wished to give oral evidence, this would require the Committee meeting to begin no later than 10 am, with the SPCB evidence as the first item. I would be very happy to accommodate that – but since it would involve re-arranging existing witnesses, I would very much appreciate early confirmation that this is to be the approach.
On the other hand, you may feel that your concerns would be better addressed through written evidence. In that event, I would still appreciate early confirmation, just so that the clerks are aware that existing witnesses need not be asked to re-arrange. Any written memorandum would need to
1 PR/S2/05/14/3 Agenda item 2 reach the clerks, if possible, no later than noon next Thursday (17 November) in order to be circulated to members for the 22 November meeting.
Donald Gorrie Convener 14 November 2005
REPLY BY THE PRESIDING OFFICER
I am responding to your letter of 14 November offering the SPCB the opportunity to give evidence in this inquiry.
The SPCB understands that the Executive’s proposal is designed to speed up the processing of three anticipated private bills for transport infrastructure projects and reduce the pressure on MSPs in terms of the length and frequency of private bill committee meetings. We note that private bill committees would require to consider all of the evidence reported by the assessor and that the proposal involves the committees having the discretion to hear directly from the parties after the assessor has reported. We also note that some concerns have been raised in evidence to the committee about the risk of challenge to the procedures, if implemented.
We do not wish to give oral evidence and have decided to restrict our comments to the practical implications of the proposal for the parliament’s resources.
It is clearly the expectation that assessors would be appointed under contract to the SPCB. To an extent, the terms of any such contractual arrangement would follow those currently applied to the appointment of advisors to committees. However, we are conscious that assessors would play a significantly different role from advisors and that some time must be allowed to develop the detail of the appointment process, including the precise terms of the remit and letter of appointment. Whilst it will be for individual private bill committees to decide whether or not to appoint an assessor, we consider that it would be prudent for the SPCB to have some form of panel, or framework contract in place, anticipating the demand. It is therefore possible that it would be necessary to go through a formal tendering exercise, given that the value of any contract intended to cover evidence gathering for three complex and potentially controversial bills might exceed the threshold of £60,000 above which contracts are normally advertised.
We appreciate that it has not been possible, in the time available and given the early stage of development of this proposal, to agree in detail with the Scottish Executive Inquiry Reporters’ Unit (SEIRU) the basis on which they would be able to provide the services required. Nevertheless, there would clearly be a cost to the Parliament for which we have not budgeted in our 2006-07 bid. The cost will depend on the length and complexity of any evidence sessions
2 PR/S2/05/14/3 Agenda item 2 and on the level of support provided by SPCB staff. We appreciate that some costs may be recouped from promoters or may be offset by savings against the cost of current procedures. However, we are not presently convinced that there would be an overall saving of SPCB resources.
The time taken by committees in considering, discussing, and possibly hearing, evidence is yet to be quantified. Support to meetings held on successive days by assessors, as envisaged, would require an intensive application of resources which could have an adverse impact on the level of support provided for other parliamentary business. For example, the SEIRU appear to be expecting that the services of the Official Report would be available to assist in providing a transcript or note of the proceedings. If that were required on successive hearing days, it would not be possible to supply that support and continue to report parliamentary committee meetings to current targets. There is no simple or speedy way of increasing the number of trained reporters. In addition, there would be pressure on the broadcasting office and our contracted sound engineers to support such meetings, in order that the OR could be produced.
An alternative which has been followed in some major planning enquiries would be to require the promoter to pay for a daily transcript to be prepared by a transcription service. If that were to be adopted, it might actually relieve some of the current pressures on SPCB resources. We would, therefore, suggest that the committee might give serious consideration to this alternative.
We would be equally concerned about the impact on the security office if meetings outside the Holyrood complex had to be staffed: we are simply not able to do that from our existing resources to the frequency which such meetings would require to be held in order to produce savings in the overall time taken to process the bills.
The implications for clerking and legal support would also need to be considered carefully and, of course, any legal challenge would have to be met out of Corporate Body resources.
It may be that all of these issues can be addressed satisfactorily, but we wish to draw attention to the time which may be required and to the possible resource implications.
George Reid 17 November 2005
3 PR/S2/05/14/4 Agenda item 3 PROCEDURES COMMITTEE
Private Bill Committee assessors
Correspondence with the Faculty of Advocates
LETTER FROM THE CONVENER TO THE DEAN OF FACULTY
I am writing on behalf of the Committee to thank you for the written evidence submitted on behalf of the Faculty in connection with the Committee’s inquiry into the Executive proposal to allow assessors to conduct evidence-taking at Consideration Stage of a Private Bill.
The Committee considered your submission at its meeting yesterday. Members also had before them the submission the Faculty provided in January during the Committee’s earlier inquiry on private legislation. That first submission (published in Annexe E to the Committee 4th Report, 2005, stated your view (in paragraph 11) that “there is no reason why the actual inquiry [at Consideration Stage] should not be delegated to a person or persons … who would hear the evidence and report to the Committee”. It would assist the Committee to have clarification from you on the relationship between the views expressed in the submission currently under consideration and the views expressed in that earlier submission.
In order to enable the Committee to consider, at its next meeting on 22 November, any further submission you may wish to make in response to this letter, I would be grateful if you could send any such response to the Committee clerk by noon on Thursday 17 November. I apologise for the short timeframe, but this is a product of the tight timescale that the Committee has agreed to observe in taking forward this inquiry.
Donald Gorrie MSP Convener 9 November 2005
REPLY BY THE FACULTY SOLICITOR
The Dean is currently absent from Edinburgh and has asked me to respond to your letter dated 9 November, and received yesterday.
When the Faculty was asked to provide its initial submissions to the proposal that a Private Bill Committee might delegate parts of their function to an independent person, now referred to as an assessor, the Faculty responded to the issues raised as a matter of policy. It did not appear that as a matter of practicality there was any reason why such a person should not hear and report on evidence which would otherwise be given directly before a Private Bill Committee, and the
1 PR/S2/05/14/4 Agenda item 3 Committee itself could then consider a report on that evidence and reach a decision on whether or not to pass the legislation.
The recent request which was received asked whether or not as a matter of law such a procedure could be introduced by standing orders, in the absence of primary legislation, and the second submission which was provided by the Faculty therefore addressed the issues of law which were relevant. Having addressed these issues of law, the Faculty provided the second response which was related solely to matters of law.
The position therefore is that as a matter of policy the Faculty would have no objection to the appointment of independent assessors by Private Bill Committees, and can see no reason in principle why this should not be done, but separately and as a matter of law, any proposal to create such a system by way of primary legislation may raise the issues which are referred to in our second response.
I hope this clarifies matters.
Carole B Ferguson Faculty Solicitor 15 November 2005
2 PR/S2/05/14/5 Agenda item 3 PROCEDURES COMMITTEE
Private Bill Committee assessors
Note by the Scottish Executive on submission by the Faculty of Advocates
1. The Scottish Executive has considered the submission by the Faculty of Advocates dated 4 November (“the first submission”)1 and the subsequent submission from the Faculty dated 15 November (“the second submission”)2, and has the following responses to the points made by the Faculty.
2. The Faculty’s first submission proceeds upon the basis that the Executive is suggesting delegation of the functions of the Committee to an assessor. The Executive takes the view that that would indeed be unlawful, in the absence of any express power to delegate.
3. However, as the Executive has made clear, the Executive’s proposal does not involve the delegation of functions. What the Executive is proposing is simply the appointment of an assessor to inquire into, and advise upon, matters which are before the Committee for the purpose of informing the Committee. All of the decisions, including the decision as to the weight to be given to the different strands of evidence, would be taken, as now, by the Committee itself.
4. For that reason, what is being proposed here is, in the Executive’s view, no different, in form or in law, from the appointments that can be made under Rules 12.6 and 12.7 of the Parliament’s Standing Orders. In particular, Rule 12.7 enables the Committee to direct the Parliamentary Corporation to appoint:
“any person to inquire into and advise the Committee or any sub-committee upon any competent matter. Different advisers may be appointed for different competent matters.”
5. We understand that that power has been used to appoint assessors to enquire into competent matters and advise Committees upon such matters, in order better to inform the decisions taken by the Committee. As far as the Executive is aware, it has never previously been suggested that any of those appointments were unlawful.
6. Turning to the arguments made by reference to the Scotland Act, the Executive accepts that the power to make the standing orders is constrained by those provisions in the Scotland Act which require standing orders to contain particular provision or provision along particular lines.
7. It is also true that, prior to the passing of the Scotland Act, private legislation in
1 Note by the Clerk: this is the paper circulated for the last meeting as PR/S2/05/13/15. The terminology of “first submission” and “second submission” used here by the Executive should not be confused with the terminology used by the Convener and the Faculty in their correspondence – in which this paper is contrasted with the Faculty’s earlier submission to the Committee’s previous inquiry. 2 Note by the Clerk: this is the letter from the Faculty Solicitor circulated for this meeting as PR/S2/05/14/4.
Scotland was enacted following procedures under the Private Legislation Procedure (Scotland) Act 1936, which was itself a consolidation of even older provisions. As the Faculty submission notes, paragraph 5 of Schedule 8 to the Scotland Act amends section 1 of the 1936 Act to exclude the operation of that Act from private legislation wholly within the competence of the Scottish Parliament.
8. The Faculty’s first submission, in particular, at paragraph (a) says that the result of that provision is:
“that any proposal to provide a procedure for the making of private legislation which is wholly within the powers of the Scottish Parliament must be found in the 1998 Act itself.”
9. The Faculty’s submission offers no reason or argumentation in support of that proposition. And, in the view of the Executive, that proposition is wrong.
10. The legislative competence of the Scottish Parliament is determined by reference to sections 29 and 30 of, and Schedules 4 and 5 to, the Scotland Act. In the Executive’s view, there is nothing in those provisions to indicate that competence to legislate (or make Standing Orders) about Private Bill procedures is beyond the competence of the Scottish Parliament or is somehow restricted. And there is no other provision of that Act that would limit that competence in the manner suggested by the Faculty.
11. The amendment made by the Scotland Act to section 1 of the 1936 Act is a consequential provision which reflects the fact that the legislative competence of the Scottish Parliament does include power to make provisions for private bill procedures. All that section 1(5) of the 1936 Act (as so amended) does is make it clear that the 1936 Act will, following devolution, continue to have effect only in relation to the conferral of Parliamentary powers which are not wholly within the legislative competence of the Scottish Parliament.
12. Against that background, the Executive’s view is that there is nothing in the Scotland Act to prevent the Parliament making the sort of provision proposed, whether in Standing Orders or, indeed, in primary legislation.
13. Finally, we note that the conclusion of the second submission from the Faculty of Advocates is that, as a matter of policy, the Faculty would have no objection to this proposal but, separately, that as a matter of law any proposal to create such a system by way of primary legislation may raise the issues referred to in its first submission.
14. For the reasons already given, the Executive does not think that, as a matter of law, those issues would prevent the Parliament from making primary legislation of that nature.
15. The Executive would by happy to discuss the matter further, if the Committee would find that useful.
Office of the Solicitor to the Scottish Executive (OSSE) November 2005
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PROCEDURES COMMITTEE
Sewel Convention inquiry
Response by the Executive
A good relationship between the Scottish Parliament and the UK Parliament is central to the success of Scotland’s devolution. It is of the utmost importance that it operates effectively and respects the founding principles of the Scottish Parliament.
The Executive is therefore grateful to the Procedures Committee for carrying out its thorough inquiry into the operation of the Sewel Convention, and to those who have given evidence to the Committee. The Committee’s report is balanced and well-informed and provides important conclusions and recommendations. This paper responds to those conclusions and recommendations on behalf of the Executive.
INTRODUCTION
We believe that it is in no-one’s interests for a significant aspect of the Parliament’s business, and its principal interface with the Westminster Parliament, to be so dogged by controversy and misunderstanding.
As the Committee notes, the Convention has been the subject of some criticism since devolution, much of which has been rooted in misunderstanding. In this light, it is extremely helpful that the Committee has seen fit to dispel some of the myths surrounding the Convention. The Executive particularly welcomes the report’s comment that to suggest the Sewel Convention is about handing back powers to Westminster “betrays a basic misunderstanding of devolution” (para 132). It is likely that formalising procedures and enhancing their transparency, together with educational work by Parliament and the Executive, should help to reduce the scope for misunderstanding in the future.
At a procedural level, locating the current, largely ad hoc procedures within the framework of the Rules should enable better information to be made available, enhancing the opportunities for scrutiny and easing transparency. At a political level, there is a broader goal – to secure a degree of consensus about the general need for procedures of this sort and a shared understanding of when and how they should be used, and at the same time to lay to rest some of the persistent misunderstandings that have arisen.
The Executive supports the Committee’s assertion that the nature of Scotland’s devolution settlement means that the Sewel Convention, or an equivalent, is necessary and that it is a legitimate mechanism to legislate for the benefit of Scotland in some circumstances. The Executive also welcomes the Committee’s recognition that procedures have improved over the last six years. It also accepts that there is a need for some formalisation of the procedures.
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GENERAL STATUS OF THE CONVENTION
Its [the Convention’s] purpose is to assert the Parliament’s political (if not legal) primacy in devolved areas. We believe that this is a fundamental principle for the Parliament, and it is one which we strongly endorse.
The Executive strongly supports this conclusion and agrees with the Committee’s view that all legislation passed for Scotland in devolved matters should be passed by the Scottish Parliament or with its explicit consent. This principle is embodied in the Sewel Convention and demonstrated by the seriousness with which the principle of the Convention is taken within the Scottish Executive and the UK Government, and within the Scottish Parliament and Westminster. It is particularly helpful that the Committee “reject[s] any assertion that the number of Sewel resolutions can be meaningfully compared with the number of Bills the Parliament has passed” (para 131).
EARLY WARNING MECHANISMS
We recommend that the Executive should provide information about the implications of the Bills announced in each Queen’s Speech in a letter to the Presiding Officer, copied to all MSPs including Committee Conveners, and then brought prominently to the attention of the public through the Bulletin.
The Executive welcomes the Committee’s recognition of the improvements that have been made in recent years to the way in which the Executive informs the Parliament of its intentions to propose Sewel motions on forthcoming UK Bills (e.g. by answering an inspired Parliamentary Question and writing to relevant committee conveners following the Queen’s Speech at Westminster). The Executive has taken steps to improve its procedures in this way to ensure that Parliament has the maximum possible time to consider the implications of a Sewel motion and can base its decisions on the fullest possible information.
The Executive therefore supports the Committee’s recommendation that, wherever possible, the Executive should write to the Presiding Officer and all MSPs to outline which Bills announced in the Queen’s Speech are likely to result in a Sewel motion coming forward from the Executive. However, the Executive also welcomes the Committee’s acknowledgement that it would not always be clear at the time of the Queen’s Speech which Bills will give rise to a Sewel motion as much of the detailed policy is often worked out at a later stage. On such Bills, the Executive would be happy to accept the Committee’s proposal that, once the position had become clear, the relevant Executive Minister should write to the relevant Committee convener informing him/her of the intention to bring forward a Sewel motion. In fact, this approach has increasingly been adopted in the recent past as the Executive has taken the view that it is right to tell the appropriate Parliamentary body as much as it can as soon as it can.
The Executive is also keen to ensure that the public has the best possible access to information about Sewel motions, which is why it has developed and maintained a comprehensive database of motions and memorandums on its internet site. In similar vein, the Executive would support the Committee’s suggestion that the Parliament – perhaps through the Presiding Officer – should bring forthcoming
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Sewel motions to the attention of the public through an announcement in the Business Bulletin. The Executive would also be content for copies of the Executive’s letter to be made available through SPICe and on the Parliament’s own website.
AN ENHANCED ROLE FOR THE EXECUTIVE MEMORANDUM - Timing of Executive memorandum - Content of the memorandum
The memorandums provided by the Executive should become formal Parliamentary documents, required under standing orders. The Executive memorandum should either explain why the Executive intends to lodge a Sewel motion, or why it does not. In addition, any non-Executive member proposing to lodge a Sewel motion should also first be required to provide his or her own memorandum.
As recognised by the Committee, the Sewel memorandum now forms a significant part of the Parliament’s scrutiny process and so it makes sense that it should form part of the proposed new Sewel motion procedures. The Committee’s proposal that the memorandum should have a formal status in the Parliamentary system should help to bring it more clearly to the attention of MSPs, allow it to be better tracked through the system and allow the Bureau to allocate it to the Committee best placed to consider it in the circumstances. While Parliamentary procedures are a matter for the Parliament, the Executive agrees that this proposal should help, in general, with the management of Sewels and would be more coherent than the current system.
Setting out in Standing Orders the manner and timeframe in which the Executive should lodge a memorandum will also help to give the Convention a more formal status in the Parliament’s procedures. However, the Executive believes that there will need to be flexibility in the timings to allow for Sewel motions to be dealt with quickly in cases where that is necessary. The Executive agrees that, in normal circumstances, requiring that the motion is not lodged until the Committee has completed its consideration is sensible, but in some cases it may be necessary to lodge the motion before the Committee has completed its consideration in order to ensure that the Parliament’s vote on whether or not it agrees to the motion will be taken in time to meet the relevant stage of the Bill’s timetable at Westminster.
The Committee has recommended that if a non-Executive MSP wished to lodge a Sewel motion, then that MSP should be obliged to lodge a memorandum in advance. The Executive would support this since it should be the duty of the person wishing to persuade the Parliament to give its consent to understand and fully explain the issues. If an individual fails to persuade the Parliament, then under the Sewel Convention, the proposals should be withdrawn at Westminster.
The Executive is not convinced by the Committee’s proposal that the Executive should provide a memorandum on every relevant Bill extending to Scotland that contains provisions in a devolved area, whether or not the Executive intends to lodge a Sewel motion. The Committee has argued that at the time a Bill is introduced at Westminster, the Executive may not have decided whether or not it will seek Sewel consent. However, if the Executive had not decided on whether to
3 PR/S2/05/14/6 For information propose a Sewel Motion, it would be unlikely to be in a position to provide a meaningful Memorandum. As soon as the Executive had made a decision, it would either propose a Sewel Motion (and therefore to provide a Memorandum in the normal way) or not (and would ask the Government to ensure that the relevant provisions were removed from the Bill). The Executive therefore does not see any practical value in providing a Sewel memorandum on provisions in Bills for which it does not intend to propose a Sewel motion.
The Committee has recommended that the Executive should be required to provide a memorandum on a relevant Bill within a timescale specified in standing orders. The Executive agrees that the Parliament’s consideration of a Sewel motion is helped by prompt access to relevant information. With the caveat noted above, that the Executive does not consider that it should provide a memorandum on a Bill on which it did not intend to propose a motion, the Executive supports this recommendation. The Executive agrees that it is sensible to have different timescales to accommodate the different occasions on which the Sewel Convention might be triggered (e.g. Government Bills, Private Members Bills etc.) and welcomes the Committee’s recognition that flexibility on those timings would sometimes be required.
The Executive welcomes the Committee’s recommendation that the Rule should specify what information should be contained in a Sewel memorandum. The Executive understands that the Parliament’s consideration of the memorandum will be aided if it has all the information it needs in front of it. If a standard form of memorandum, agreed between the Parliament and Executive could be developed, this would be a useful innovation.
COMMITTEE CONSIDERATION
Sewel scrutiny should continue to be carried out mainly by the existing subject committees. The lead Committee’s report should normally be published at least five working days before the motion is debated in the Chamber.
The Executive welcomes the Committee’s conclusion that Sewel scrutiny should continue to be carried out by the existing subject committees. These committees have expertise in their fields and are best placed to consider whether the legislation being proposed is appropriate.
The Executive supports the recommendation that the lead committee should be required to make a report to Parliament following its consideration of a memorandum. Such a report would aid the Parliament’s consideration of the motion in the Chamber and may go some way towards reducing some of the misconceptions and misunderstandings about the effect of particular Sewels.
The Executive welcomes the suggestion that the lead Committee’s report should normally be published at least five days before a motion is debated. In normal circumstances this will give members time to read the report and understand the terms of the motion.
The Committee has also proposed that any Sewel motion which proposes to confer powers on the Scottish Ministers should be referred to the Subordinate Legislation
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Committee for consideration. This proposal would be consistent with the manner in which proposals for subordinate legislation powers in Scottish Bills are considered. The Executive considers that, in normal circumstances, such a role for the SLC should help the Parliamentary scrutiny of motions.
The Executive supports the Committee’s recommendation that, in line with the memorandum’s proposed formal status, the Bureau should be responsible officially for referring a memorandum to the relevant committee. This would be a more transparent way of allocating memorandums to committees and, in practical terms, makes more sense as the Bureau will have a much clearer idea than Executive Ministers of Committees’ workloads. At the same time, the Executive is concerned to ensure that the time available to lead Committees should not be eroded by the institution of this additional stage. Therefore, while not pre-empting the decision of the Bureau, the Executive may on occasion consider providing memorandums to the most likely Committees in advance.
LEGISLATIVE CONSENT MOTIONS
The motions – which we recommend are formally referred to as “Legislative Consent Motions” – should be capable of being lodged by any MSP. Every such motion lodged should be taken in the Chamber.
The Executive accepts the Committee’s assertion that the term “Sewel motion” does not clearly reflect the process it describes while also noting that the term is well known in Scotland and Whitehall and that a great deal of work has gone into educating officials, ministers and the media about the Sewel Convention. For that reason, it is likely that, regardless of its official title, it will continue to be known as the “Sewel Convention”. However, the Executive agrees with the Committee’s conclusion that a change of name would be helpful to provide a more accurate description of the process, at least for formal purposes such as Standing Orders. The Executive therefore supports the Committee’s recommendation that the formal name for such motions should be changed.
The Executive agrees that any MSP should be free to lodge a Sewel motion and notes that this is consistent with the current practice. There is nothing currently to stop a non-Executive MSP from lodging a Sewel motion on a measure introduced at Westminster (for example if a Private Members Bill was introduced at Westminster by an opposition MP, a colleague of the same party in the Scottish Parliament may wish to propose the relevant Sewel motion).
The Executive notes that the Committee has recommended a standard wording for Sewel motions and that this approach is consistent with the approach to motions in relation to Scottish Parliament Bills. The Executive accepts that this may make the parameters of the consent given clearer to understand. Where possible, Executive memorandums already make reference to the specific parts/clauses of the Bill to aid the Parliament’s consideration. However, to specify particular clauses in the motion might confuse matters since clauses are likely to change during the Bill’s progress and because the Parliament is not being asked to agree to specific clauses but to the general policy proposed and that the matter be considered at Westminster.
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The Executive is not convinced by the proposal that the motion should refer to the Bill by introduction date. This would mean that provisions such as those in the National Lottery Bill, which fell in the Westminster Parliament before the General Election and were reintroduced unchanged in a new Bill, would have required to be scrutinised and voted on again regardless of the fact that the Parliament’s view (in the case of the National Lottery Bill, its unanimous view) had only recently been given. This sort of duplication would not appear to be a particularly good use of already scarce Parliamentary time.
Given the caveat that there would not always be a need for a debate in the Chamber, the Executive supports the Committee’s recommendation that all Sewel motions are taken in the Chamber. Even when Sewel motions relate to very minor issues, they nonetheless relate to legislation and it is appropriate that the whole Parliament has the opportunity to vote on their terms.
MONITORING AND FURTHER SCRUTINY
We do not support the idea of a second opportunity for the Parliament to consider the Bill at the end of the Westminster process.
The Executive supports this recommendation. In practice, the Executive monitors Bills in which it and the Parliament has an interest and, where relevant provisions are included or significantly amended during the Bill’s passage, the Executive have informed the Parliament and asked for any further consent as necessary.
The Executive welcomes the comment from the Committee that, while the Parliament’s consent may include limits, it is not provisional and it entitles Westminster to pass legislation in any way it likes, within the limits set.
On the issue of separate commencement powers exercisable by Scottish Ministers for devolved provisions in UK Bills, the Executive welcomes the Committee’s acknowledgement that this would not always be possible / appropriate (e.g. where the rationale for a Sewel motion was to enable a seamless cross-border regime).
CHANGES TO WESTMINSTER PROCEDURE
We suggest some changes to the Westminster procedure, including “tagging” relevant Bills in Parliamentary documents and mentioning any Sewel implications in Explanatory Notes.
As noted by the Committee, recommendations on Westminster procedure are a matter for that Parliament. However, the Executive welcomes the constructive comments that were made by the then Parliamentary Under-Secretary of State at the Scotland Office when giving oral evidence to the Committee and also notes the announcement from the Westminster Parliament’s Scottish Affairs Committee that it intends to hold an inquiry in to the Sewel Convention in which it “will also consider the possible changes to Westminster procedures promulgated by the Procedures Committee of the Scottish Parliament in its recent report on The Sewel Convention.” (Press release No. 3 of Session 2005-2006, 27th October 2005).
6 SCOTTISH PARLIAMENT SEWEL MOTIONS Sewel Reform at Holyrood: Balancing the Political and the Procedural Barry K Winetrobe, Reader in Law, Napier University considers the recent Procedures Committee report hen an editorial in the February 2005 issue of SCOLAG is one we strongly endorse. expressed scepticism about the value of the Scottish The Committee recognises that the process has hitherto been WParliament Procedures Committee’s inquiry into the regarded, not least by the two governments, as executive-driven, but, oper.ation of the Sewel Convention, I replied that it was up to the quite correctly, claims a central and pro-active role for the Parliament, Scottish public to make it a worthwhile exercise by engaging with the even to “shared ownership” of the process by the Parliament and the Inquiry.1 Now that the Committee has issued its report, we can examine Executive.10 Significantly, the report describes the need for adequate whether it has indeed been a positive contribution to the development parliamentary scrutiny of Sewel proposals as “a matter of procedural of Scottish devolved governance.2 right”,11 a concept which not only neatly encapsulates the interests of Some of SCOLAG’s doubts were based on the political make-up of the Parliament, on behalf of the people of Scotland, but should be the Committee. Like all Scottish Parliament’s Committees, it comprises regarded as a basic principle underpinning the Parliament’s proper (wrongly, in my view) an Executive majority. Further, unlike the business, especially that which engages the Executive or the UK Committee of the first session which had a Conservative convener,3 Government and Parliament. this session’s Committee has had both a convener and a deputy convener This brief note is not the place to describe the proposed reforms in from the Executive benches.4 Indeed, the convener, Iain Smith, when detail. In summary, the Committee proposes that Sewel business – “a a business manager and junior Scottish Minister in 1999-2000, also significant aspect of the Parliament’s business”12 – be embedded in attended and participated in meetings of the Procedures Committees Standing Orders,13 so that the hitherto ad hoc scrutiny processes are on an informal ex officio basis for over a year, at a time when the regularised, structured and transparent. In particular, Sewel business, Committee was working out its method of operation, and examining like almost all other parliamentary business, will be arranged through important procedural issues, such as revision of the initial Standing the Parliament’s formal business management processes, primarily Orders. Thus the Committee may be regarded, at least potentially, as through its business committee, the Parliamentary Bureau. This will ‘Executive-inclined’ in its approach, especially to politically sensitive make the whole Sewel process more open to both parliamentarians issues like Sewel. An early indication of this was the decision (on a and the public, and thereby should enhance the quality of discussion in formal division, on party lines5), not to hear oral evidence from Gerry the Parliament and in the media14 about both the Sewel process itself15 Hassan, a well-known critic of the Sewel motion process. Not only and, equally importantly, the scrutiny and discussion of the policy issues was a division relatively unusual for a Committee of this kind, a division included in the substantial provisions of UK ‘Sewel Bills’. on which witnesses to invite is even rarer, if not unprecedented. The centrepiece of the scrutiny by the Chamber and committees Nevertheless, the inquiry during 2005 was carried out thoroughly, would be the detailed information on the proposed UK legislative based on thoughtful analyses from Committee staff, supplemented by provisions for which consent is sought, as provided by the Executive, a range of witnesses from the academic to the professional politician, primarily through a Memorandum. In some senses, therefore, the including committee conveners; current Scottish and UK ministers; Executive’s revamped ‘Sewel Memorandum’ will perform a role similar backbench opposition Scottish MPs, and, perhaps most importantly, to that which ‘accompanying documents’ (such as the policy two ministers from the period when the Convention itself was devised, memorandum, explanatory notes and financial memorandum) play in Henry McLeish and Lord Sewel himself. The report itself is a well- relation to Scottish Parliament Bills and their scrutiny. crafted document, clearly setting out the complexities and nuances of The Committee has rejected both the suggestion of a dedicated the subject;6 recognising the clearly partisan aspects of a matter which ‘Sewel Committee’, preferring to leave the scrutiny to the appropriate touches the very political and constitutional heart of the devolution subject-based committee,16 and the suggestion of a ‘second look’ or scheme, and addressing directly what it sees as some of the myths and ‘signing-off’ procedure when a ‘Sewel Bill’ completes its Westminster distortions that have arisen since 1999. Within the constraints of what passage.17 It has not supported restriction of the Sewel process to matters it describes tactfully as “a number of important contextual factors”7, where devolved matters are contained in UK Bills, rather the current the Committee has produced proposals which are logical, coherent, additional use for provisions which alter the legislative competence of flexible and practical, and which have both the ‘procedural aim’ of the Parliament or the devolved competence of Scottish Ministers.18 It regularising and enhancing the Parliament’s Sewel scrutiny, and the has also made suggestions for the ongoing monitoring of the ambitious ‘political aim’ of harnessing some degree of consensus about Westminster stages of a ‘Sewel Bill’, and for making Westminster and the Convention and its operation within the Parliament.8 its Members aware of a Bill’s Sewel provisions and of Holyrood’s The overall philosophy of the report is commendable, and represents views on them.19 the Committee’s consensus. The only explicit dissent appears to be by This is a significant set of proposals, which, if accepted by the Bruce McFee (SNP) to paras 185-6 on using the term ‘Legislative Parliament when it considers the report some time in the coming weeks, Consent Motions’ in Standing Orders, instead of the more colloquial will have reformed the handling of Sewel business for the better. More ‘Sewel Motions’. The extracts from the Minutes, reproduced in Annexe generally, it should remove many of the harmful effects, inherent in B, also record some other divisions during deliberations on drafts of the present unsatisfactory arrangements, on the Parliament’s culture the report. The report asserts the Parliament’s constitutionally proper and ethos of openness, participation and accountability (as expressed role in the Sewel process:9 in its founding principles20). These include informal communications We recognise the need for a mechanism along the lines of the between ministers on the one hand and business managers and Convention. Its purpose is to assert the Parliament’s political committee conveners on the other, rather than the use of the normal (if not legal) primacy in devolved areas – any legislation must Parliamentary Bureau-centred business management arrangements; either be the product of its own deliberations or require its ‘inspired’ PQs as a means of making Executive announcements on explicit consent. Either way, it remains in control. We believe Sewel-related developments; unavailability of some relevant Executive that this is a fundamental principle for the Parliament, and it documentation, and too-tight timetables to allow proper scrutiny by
PAGE 248 SCOLAG JOURNAL NOVEMBER 2005 committees or informed engagement by interested members or groups Footnotes of the Scottish public. 1. 2005 SCOLAG 26 and 44 respectively 2. The Sewel Convention, 7th Report, 2005, Procedures Committee, SP And yet … Paper 428, 5.10.05, and the Committee’s press release, CPROC004/2005. So, two cheers for the Committee’s inquiry and its outcome. True, For the Sewel Convention in operation, see B Winetrobe, “A partnership it will not neutralise the inherently political tensions of the Sewel of the parliaments? Scottish Law Making under the Sewel Convention Convention, and it deliberately did not address the policy substance of at Westminster and Holyrood”, chap 2 of R Hazell & R Rawlings (eds), Sewel provisions (a matter which provoked SCOLAG’s criticisms). Devolution, Law Making and the Constitution, Imprint Academic, 2005, But a report by a parliamentary committee with a remit focussing on and earlier analyses cited in the Committee’s report at fn 10. procedural matters could not hope to achieve these aims, and the 3. Murray Tosh; the deputy convener came from the Labour Party Committee made that clear. 4. Iain Smith (Lib Dem) (from September, Donald Gorrie), and Karen However, a major criticism that can be made of the Committee’s Gillon (Lab) respectively report is that, despite its frequent references to a ‘parliamentary’ focus, 5. 1 February 2003, meeting, cc816-7. and having described Sewel as the Parliament’s “principal interface 6. Such as the huge variety of ways and timings at Westminster in which with the Westminster Parliament”,21 it misses a golden opportunity to the ‘Sewel’ context of a provision may appear, including type of Bill, raise devolved governance to a new, innovative level by using the Sewel stage in the scrutiny process, and provenance of amendments. process as the platform for genuine inter-parliamentary collaboration. 7. Para 138 22 Relations between the devolved and UK parliaments are friendly, but 8. Para 5-6, 210 display nothing like the sophistication and core importance of devolved 9. Para 211 (emphasis in original). inter-governmental relations through the overarching Memorandum of Understanding, and related bilateral concordats, Joint Ministerial 10. Para 210 Committees, Devolution Guidance Notes and so on.23 The Committee 11. Para 137 refers to the substantial analysis of Sewel by the House of Lords 12. Para 209. Since the summer recess, it has been dealing with a number Constitution Committee in 2003, and its plea for a more parliament- of Sewel proposals, including the Natural Environment and Rural to-parliament rather than executive-to-executive approach to the Communities Bill, the Equality Bill and the Civil Aviation Bill. operation of the Sewel Convention,24 but, generally, it adopts a too- 13. The title of the proposed Chapter 9B of Standing Orders, ‘Consent to timid line on genuine engagement with the Westminster end of the UK Parliament Bills ’ (Annexe A of the report), appears slightly Sewel process. It implicitly accepts McLeish’s warning against trying misleading, in that Holyrood’s consent is not to UK Bills as such, but to influence Westminster practice,25 presumably on the grounds that it to Westminster doing the legislating. A more appropriate title may be something like ‘Consent to legislating by UK Parliament’. would be unrealistic and pointless, and that Westminster has no interest in or need to change its ways to accommodate Holyrood concerns. 14. It is perhaps not surprising that, though Sewel has been a ‘hot topic ’ in the media since 1999, the publication of the Committee’s report has This pessimistic view of Westminster’s willingness to adapt to the been greeted with a deafening silence. outside world may be well-founded, as the Welsh can testify since 15. Including any future reform of the Sewel process, which would now 1999 in liaising with it over primary legislation under their own form be in the hands of the Procedures Committee under Rule 17.1 of the of devolution. As the submission to the Committee from the Clerks SOs), rather than the hitherto opaque and piecemeal methods used for of the two Houses recognised, Sewel hardly registers on the development of the process from time to time since 1999. 26 Westminster radar. However, the Committee did quote instances of 16. Paras 174-7, 217 Westminster’s potential or actual ability to change, such as the joint 17. Paras 198-202 legislative scrutiny by Welsh Assembly and Commons committees (now entrenched in HC S.O. no. 137A) and the Modernisation 18. See generally paras 91-94. The relatively frequent use of the Sewel Convention, rather than the Order-making route provided in the Scotland Committee’s proposals for MEPs and EU Commissioners (but not Act under ss30 and 63, for provisions varying competence, has Members of the devolved parliaments/assemblies!) to be able to contributed to the generally confused arguments over the use of the participate in a new Parliamentary European Committee’s scrutiny Sewel Convention both within and outwith the Parliament. 27 processes. To this should now be added the substantial proposals 19. Paras 198-207 for devolved law-making in the Better Governance for Wales white 28 20. These founding principles originated in the 4 key principles of the 1999 paper in June, in response to sustained pressure in Wales from the Consultative Steering Group report, and so are sometimes still referred Assembly and others. Westminster – in practice, unfortunately, the to as the ‘CSG principles’ government of the day – can be influenced to change, when persuasive 21. Para 209 political arguments are made. Whether the Procedures Committee was simply trying to be 22. For an early overview, see my paper commissioned by the House of Lords Constitution Committee for its devolution inquiry, published as realistic and pragmatic, or whether it genuinely believed that the Sewel Paper 1 of Appendix 5 of Devolution: inter-institutional relations in the Convention issue can be adequately resolved by unilateral reform at United Kingdom, 2nd Report, 2002-03, HL Paper 28, January 2003. Holyrood, remains to be seen. Sewel is, as the Committee recognises, 23. On which see generally, R Hazell & R Rawlings, op cit, fn2 inherently a cross-parliamentary process, and, as such, can only be addressed conclusively on an inter-parliamentary basis. This inquiry 24. op cit, fn 22, esp at paras 128-32. See also that Committee’s follow- up, Devolution: its effect on the practice of legislation at Westminster, was an opportunity for Holyrood to do just that, and, in the process, 15th Report, 2003-04, HC Paper 192, November 2004, based on an to enhance and deepen post-devolution parliamentarianism in the UK. excellent paper by Professor Chris Himsworth (reproduced as Appendix The Committee now has a new Convener, one who is by no means 1) Executive-minded in his approach to the central issue of parliament- 25. Quoted at para 123 executive relations. This represents the next best thing to a non- 26. Para 60, and see the full submission at vol 2: http:// Executive convener, which is what a committee such as Procedures www.scottish.parliament.uk/business/committees/procedures/reports-05/ should have, along with a membership balanced between the Executive prr05-07-vol02-02.htm#d and non-Executive benches. Even the House of Commons now has a 27. Para 121. The Modernisation Committee’s proposals are in its 2nd balanced membership for its Standards and Privileges Committee, report, 2004-05, Scrutiny of European Business, HC 465, March 2005, instead of the usual Government majority. Something for Holyrood to paras 67-73. learn from Westminster! Perhaps under Donald Gorrie the Committee 28. Cm 6582. See also the major report on these proposals by a dedicated can regard this report as a first step, one that should be built upon, not Assembly Committee, published in September: http://www.wales.gov.uk/ just in the Sewel area, but anywhere in that tricky devolution terrain keypubassembettergov/content/bgw-report.pdf where the political and the procedural overlap. It has just embarked on an inquiry into parliamentary time, which will be a good test of its ‘founding principles’ credentials.
SCOLAG JOURNAL NOVEMBER 2005 PAGE 249 PR/S2/05/14/8 For information PROCEDURES COMMITTEE
Procedures relating to Crown appointees
LETTER FROM THE CONVENER TO THE PRESIDING OFFICER
The Procedures Committee inquiry on the above, which was initiated at the request of the SPCB, will soon be drawing to a close and the Committee hopes to publish its report by the end of the year. In the meantime, I thought it might be useful to write to you to outline the main recommendations agreed to date.
In relation to the re-appointment of Crown appointees the Committee will be recommending that the Parliament adopts a non-competitive re-appointment procedure incorporating a formal interview of the current post-holder by the SPCB together with an independent assessor. We understand that this is a role the SPCB would be happy to undertake.
The Committee does not believe that it would be helpful to define in standing orders the special circumstances under which some of these post-holders could be re-appointed for a third term. We would prefer to leave flexibility here to allow circumstances to be considered on a case by case basis. However, we will be recommending that, where third term appointments are provided for in the legislation, they should be strongly discouraged in the interests of bringing a fresh perspective to these Offices. Finally, for reasons for consistency and clarity, the Committee will be recommending that the Rules should not replicate statutory provisions on the removal from office of Crown appointees and equivalent post-holders.
As you know, the inquiry has focused on the re-appointment and removal of Crown appointees. However it has come to the Committee’s attention that the existing standing orders do not explicitly provide for the re-appointment of the Parliamentary Standards Commissioner. Rule 3A.1 refers to the appointment of the Standards Commissioner and, although this Rule could be interpreted to cover re-appointment, the matter could be put beyond any doubt by a very small change to that Rule to make it clear that re-appointment is also covered. The Committee would be happy to recommend such a change in its report on Crown appointments if the SPCB feels that would be helpful.
Finally, can I also take this opportunity to pass on my thanks again to Nora Radcliffe for giving evidence at the Procedures Committee meeting on 27 September.
Donald Gorrie MSP Convener 15 November 2005