House of Commons Scottish Affairs Committee The Sewel Convention: the Westminster perspective Fourth Report of Session 2005–06 Report, together with formal minutes, oral and written evidence Ordered by The House of Commons to be printed 6 June 2006 HC 983 Published on 19 June 2006 by authority of the House of Commons London: The Stationery Office Limited £13.50 The Scottish Affairs Committee The Scottish Affairs Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Scotland Office (including (i) relations with the Scottish Parliament and (ii) administration and expenditure of the office of the Advocate General for Scotland (but excluding individual cases and advice given within government by the Advocate General)). Current membership Mr Mohammad Sarwar MP (Labour, Glasgow Central) (Chairman) Danny Alexander MP, (Liberal Democrat, Inverness, Nairn, Badenoch & Strathspey) Gordon Banks MP, (Labour, Ochil & South Perthshire) Ms Katy Clark MP, (Labour, North Ayrshire & Arran) Mr Ian Davidson MP, (Labour, Glasgow South West) Mr John MacDougall MP, (Labour, Glenrothes) Mr Jim McGovern MP, (Labour, Dundee West) Mr Angus MacNeil MP, (SNP, Na h-Eileanan An Iar) David Mundell MP, (Conservative, Dumfriesshire, Clydesdale and Tweeddale) Mr Charles Walker MP, (Conservative, Broxbourne) Mr Ben Wallace MP, (Conservative, Lancaster & Wyre) Powers The committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk. Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at www.parliament.uk/parliamentary_committees/scottish_affairs_committee.cfm A list of Reports of the Committee in the present Parliament is at the back of this volume. Committee staff The current staff of the Committee are Mike Clark (Clerk), Diane Nelson (Committee Assistant) and Camilla Brace (Secretary). Contacts All correspondence should be addressed to the Clerk of the Scottish Affairs Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 6295; the Committee’s email address is [email protected]. Scottish Affairs Committee 1 Contents Report Page 1 Background to the inquiry 3 2 The Westminster perspective 5 Communicating the Scottish Parliament’s view 6 “Tagging” of relevant Bills 7 Improved Explanatory Notes 7 Private Members’ Bills 9 3 Closer ties with the Scottish Parliament 11 4 Addressing West Lothian? 13 Conclusions and recommendations 16 Annex 18 Extract from the Explanatory Notes to the Equality Bill [Lords] 18 Extract from the Explanatory Notes to the Police and Justice Bill 18 Formal Minutes 19 Witnesses 20 List of written evidence 20 Publications from the Scottish Affairs Committee since 2005 21 Scottish Affairs Committee 3 1 Background to the inquiry 1. In January 2005, the Procedures Committee of the Scottish Parliament announced a major inquiry into the operation of the Sewel Convention1, ie, the process whereby the Scottish Parliament (“Holyrood”) is asked to give its consent to a Westminster Bill that would change the law on a devolved matter or alter the powers devolved to Holyrood or to the Scottish Executive. 2. The Procedures Committee published its Report on 5 October 2005.2 It made a number of recommendations for changes to how the Scottish Parliament dealt with Sewel motions,3 which would replace the then current, and largely ad hoc, procedures “with a framework of new rules to improve transparency and to enhance the opportunity for parliamentary scrutiny”.4 The recommendations included: a requirement on the Scottish Executive to provide information about any Scottish implications arising from Bills announced in the Queen’s speech; and a requirement on the Executive to provide a detailed memorandum at an earlier stage in the Westminster process thus giving the Scottish Parliament more time for scrutiny.5 3. The Committee also encouraged Scottish Ministers to make more time available for debates on Sewel motions which dealt with major issues, and proposed replacing the term “Sewel motions” with “Legislative Consent motions”.6 4. The Procedures Committee also made a number of suggestions as to how Westminster could change its own procedures in what it described as “a spirit of constructive inter- parliamentary dialogue.”7 Those suggestions were: the tagging of Bills in progress at Westminster to which the Sewel Convention would apply so that Westminster knew which Bills were involved; the question of having explanatory notes in every Bill outlining whether the Bill triggered off the Sewel Convention and in what ways it engaged in the convention; and a formal process for the Scottish Parliament to notify Westminster when a “legislative consent motion” had been passed, so that there would be contact from Parliament to Parliament, rather than simply going through Ministers.8 1 Procedures Committee News Release, CPROC 001/2005, 18 January 2005. 2 Procedures Committee 7th Report, 2005, The Sewel Convention, SP Paper 428. 3 The “Sewel Convention” and “Sewel motions” are named after Lord Sewel, the then Scottish Office Minister responsible for steering the Scotland Bill through the House of Lords in July 1998. 4 Procedures Committee News Release, CPROC 004/2005, 5 October 2005. 5 Ibid. 6 Ibid. 7 Procedures Committee 7th Report, 2005, The Sewel Convention, SP Paper 428, para 203. 8 Ibid, paras 204–207. 4 Scottish Affairs Committee 5. On 19 October 2005, we took evidence from Rt Hon Alistair Darling MP, the then Secretary of State for Scotland, on the Scotland Office’s Departmental Annual Report. During questioning on whether Westminster had dealt effectively with Sewel motions, the Secretary of State responded: “…whilst it is probably fair to say that Members of the Scottish Parliament are very aware of there being a Sewel motion because they have debated it, my guess is Members of this Parliament are probably not aware either (a) that there is one, or (b) what happened to it. That is something which is obviously outside my responsibility. It is a matter for the House, but the House has a Procedure Committee and it, too, will probably want to study this to see whether or not it would be of assistance to Members generally if they knew, firstly that there was a Sewel motion, and secondly what was happening to it and what the considerations were. You may want to make recommendations on that, I do not know, but that is really for the House, it is not for the Government.” 9 6. The remit of the Scottish Affairs Committee, as set out in the Standing Orders of the House of Commons, includes having responsibility for relations with the Scottish Parliament.10 Although we had already identified the Sewel Convention and relations between Westminster and Holyrood as a potential subject for a future inquiry, the Procedures Committee’s report, and the Secretary of State’s response to our questioning, acted as a catalyst. 7. On 27 October 2005, we announced that we would be holding our own inquiry into The Sewel Convention: the Westminster perspective. We stated that we would not be inquiring into Sewel motions per se, but rather how Members of Parliament could be better made aware that a particular Bill before the House of Commons had been subject to a Sewel motion in the Scottish Parliament – for example, perhaps by a more formal communication between Holyrood and Westminster, and the other possible changes to Westminster procedures promulgated by the Procedures Committee in its report.11 8. Subsequently, the Scottish Parliament debated, and approved, the proposed changes to its own procedures on 23 November 2005.12 Although, therefore, Sewel motions are now officially entitled Legislative Consent motions, we have used “Sewel” throughout this Report as the term people will most immediately recognise. 9 Scottish Affairs Committee, Minutes of Evidence, 19 October 2005, Scotland Office Annual Report 2005, HC (2005– 06) 580–i, Q18. 10 S.O. No. 152(2). 11 Scottish Affairs Committee Press Notice No. 3 of Session 2005–2006, 27 October 2005. 12 http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-05/sor1123-02.htm#Col20980. Scottish Affairs Committee 5 2 The Westminster perspective 9. During our inquiry, we held four evidence sessions, all during March 2006; one in Edinburgh and three in Westminster. In Edinburgh, to start off the inquiry, we took evidence from Mr Donald Gorrie MSP, the Convener, Ms Karen Gillon MSP, the Deputy Convener, Mr Alex Johnstone MSP, and Mr Andrew Mylne, the Committee Clerk, of the Procedures Committee of the Scottish Parliament; at Westminster, we took evidence from Ms Margaret Curran MSP, Minister for Parliamentary Business, Mr Murray Sinclair, Head, Constitution and Parliamentary Secretariat, and Mr Paul Allen, Head, Constitutional Policy Unit, the Scottish Executive and from Mr David Cairns MP, the Parliamentary Under-Secretary of State for Scotland, Dr Jim Wildgoose, the Head of Scotland Office, and Mr Glenn Preston, Head of the Scotland Office’s Constitutional Branch; from Mr Roger Sands, the Clerk of the House of Commons, and Mr Frank Cranmer, Clerk of Bills, House of Commons; and from Mr Barry K Winetrobe, Reader in Law, Napier University.13 In addition to written submissions from the witnesses above, we also received a memorandum from the Clerk of the Parliaments.14 We wish to place on record our thanks to all those who gave evidence during the inquiry. 10. We would also wish to record our gratitude to the staff at Edinburgh City Chambers, who facilitated our first set of formal evidence held outside Westminster since the 2005 General Election, and to the Members and the members of staff of the Scottish Parliament we met during our visit to Holyrood immediately following our evidence session; particular thanks go to Trish Godman MSP, the Convener, and her colleagues on the Conveners’ Group for hosting a working lunch for us when we were able to discuss informally numerous matters of mutual concern.