UNREVISED PROOF COPY Ev 5 HOUSE OF LORDS MINUTES OF EVIDENCE TAKEN BEFORE SELECT COMMITTEE ON THE CONSTITUTION PARLIAMENT AND THE LEGISLATIVE PROCESS WEDNESDAY 16 JUNE 2004 MR BARRY K. WINETROBE MR MARK FISHER, MP, MR PAUL TYLER, MP and RT HON DOUGLAS HOGG QC, MP Evidence heard in Public Questions 244 - 315 USE OF THE TRANSCRIPT 1. This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee. 2. Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings. 3. Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Clerk to the Committee. 4. Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee. WEDNESDAY 16 JUNE 2004 ________________ Present Acton, L Elton, L Fellowes, L MacGregor of Pulham Market, L Norton of Louth, L (Chairman) ________________ Memorandum submitted by Mr Barry K. Winetrobe Examination of Witness Witness: Mr Barry K. Winetrobe, Lecturer in Public Law, University of Glasgow, examined. Q244 Chairman: Welcome. The first item may be of some relief. The Clerk informs me that I am permitted to advise you that you may take your jacket off if you wish. Thank you very much for being with us this afternoon. Before we get down to substantive business may I, for the record, invite you to introduce yourself including by way of background, some of which you include in your paper, and then invite you, if you wish, to make any preliminary statement before we put any questions to you. Mr Winetrobe: Thank you very much. I am Barry Winetrobe. I am currently a lecturer in public law at Glasgow University. For almost twenty years I worked in the research service in the House of Commons and in the Scottish Parliament helping to set its research service. For the last three years I have been what I have described as a parliamentary and constitutional consultant. I have always been interested in these sorts of areas and I have written quite extensively in the parliamentary and constitutional reform field. I have a very brief opening statement, if I may:-. 2 I am grateful for this opportunity to appear before this Committee when it is considering this important topic. In responding to your invitation to make an initial submission, I wished to allude to the experience of the devolved Scottish Parliament when acting as a legislature. In this area, as in so many others, the Scottish Parliament is a relevant and appropriate comparator for the Westminster Parliament, notwithstanding significant structural and legal differences. Your Committee has looked at Edinburgh, in its earlier Inquiry into inter- institutional relations under devolution, and I was privileged to be asked to submit a paper to that Inquiry on inter-parliamentary relations. In my written submission to this present Inquiry, I concentrated on a few broad themes: the nature of the parliamentary legislative function; ‘ownership’ of the legislative process, and the scope for public engagement. In these respects, and in relation to two particular issues – the sessional legislative period, and the role of committees – I believe that the Scottish Parliament experience has much that can inform your Inquiry, and I hope that the Committee will examine it directly, in more detail. Arrangement of Legislative Business:-. A particular instance of this is the way in which the Scottish Parliament arranges its plenary and committee legislative and other business, through the Parliamentary Bureau. Your Committee, in its devolution Report, recommended that the idea of a ‘business committee’ be considered further at Westminster. One reason, directly relevant to this present inquiry, was that “It seems to us that the use of business committees has a great deal to commend it, injecting a greater degree of transparency than exists in the current arrangements at Westminster and transferring some degree of control from the executive to the legislature. Their use does not prevent a government from getting its business, but it does ensure greater openness and time for the proper scrutiny of government.” The Public:-. In my submission, I also highlighted the stated centrality of the public in the legislative process, both in terms of informing them of what is going on, and in involving them in the process itself. One example of the former – which is also helpful to the Members 3 of the Scottish Parliament themselves – is the Parliament’s practice of publishing much of its formal procedural guidance, including Guidance on Public Bills. I have a copy with me here. Such material has traditionally been regarded as internal, confidential information at Westminster, but, whether through a development of a more ‘open’ culture or because of FoI requirements, I hope they would routinely become public, accessible documents here. Sewel Convention:-. Finally, I wish to refer to a matter I did not, for reasons of space, cover in my initial submission, but which I believe is a relevant matter, and one which the Committee has also examined in detail in its devolution Inquiry. That is the issue of UK Bills subject to Sewel Motions, as covering matters within the Scottish Parliament‘s devolved competence. The Committee recommended that this should become a matter for the two Parliaments directly, not just the two Executives, and that mechanisms should be put in place in both parliaments to handle such legislation properly. These are, I believe, important recommendations, and, as the Scottish Parliament’s Procedures Committee may well be initiating its own proposed inquiry into this matter later this year, I would urge this Committee to regard the issue as one which fits well into this present Inquiry. For example, the recent decision by the House of Commons to initiate forms of joint activity with the National Assembly for Wales may suggest a greater willingness within that House for cooperative parliamentary working with its devolved counterparts than appeared to be the case in 1999. Q245 Chairman: Fine. Thank you very much. That provides, as does your paper, clear headings, if you like, under which we can put a number of questions. Before we come to the main areas you have identified, could I just pick up on one, which you did not mention in your introduction but which is in your paper, which is of interest because I think you are the only person in a submission who has raised this, and that is the possibility of committees themselves initiating legislation. As you mentioned, that happens in Scotland. There have 4 been one or two committees here which have got an individual Member to put a Bill forward as a Private Member’s Bill. So there is some precedent or scope for doing it. Could you just outline what are the merits of that particular proposal? Some people might think in a way it muddies the waters if committees are given that particular power. What would you say were the compelling reasons for conferring that power on committees? Mr Winetrobe: In the Scottish Parliament context, I think the idea was proposed as a concrete example of the basic principles of the Parliament that were set out by the Consultative Steering Group and I believe David Miller, who was before you last week, will have mentioned these principles It was an idea of sharing the power, the idea that the power of legislative initiative should solely be that of the Executive, although it was recognised it would primarily be so as a matter of governmental practice. It was thought that giving that power also to ordinary backbenchers was one way towards it, as happens here, but also to give it to committees would enable a wider breadth of opinion and a wider scope for legislative initiative. That has tended to work fairly well. Inevitably, they have tended to be about either internal parliamentary issues - Members’ interests and the Parliamentary Standards Commissioner - or matters which are non-partisan in a party political way – domestic violence and so on. I think that it is thought to have worked well. It has practical problems of taking up time and resources but I think it makes committees in Scotland feel that they have more power, that what they are doing can have a more positive outcome than simply a report which might, if they are lucky, be debated and then lie on the table and gather dust. Q246 Chairman: So would it be fair to see it as a residual power, in other words you do your normal report but there is that in reserve if you feel the scope of legislation or the Government response is inadequate? 5 Mr Winetrobe: I think that is certainly there as a tactical option as well. I would not think that that is how it has been used up to now in Scotland and certainly, as yet, because of the resource and time implications, there is no sense that all the committees feel that “we must be seen to have a Bill”, because any non-Executive legislation is a burden for the Parliament. But, I think it is seen as an option. It is something that they can use, as in the examples I gave and which you alluded to, the Public Administration Committee in the Commons and the Scottish Affairs Committee, where they can use a draft Bill as an extra weapon, as a way of trying to push the debate on, but to actually be able to go that extra step and go forward with the Bill.