Procedures Committee,

Meeting date: Tuesday, May 1, 2001

Official Report 204KB pdf

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Parliament and the Executive (Relations)

The next item on the agenda is the paper by Donald Gorrie that we deferred, which makes suggestions on how we should handle effectively Executive defeats in the Parliament.

The genesis of the paper was the publicity that accrued after the various votes on fishing. I accept that according to the Scotland Act 1998 and the law in general, the Parliament does not have a legal power to compel the Executive to do something, but that needs attention, because it seems pretty bizarre that we can vote to throw out the Executive, but we cannot vote to say, "Please do X." The publicity of the fact that the Executive ignored the will of Parliament was damaging to us all, so I have composed a suggestion.

I accept that Parliament may, in its enthusiasm, pass a motion that is illegal, or on reserved matters, or which is impossible to put into effect either for technical reasons or because it would be far too expensive. I do not think the Executive should instantly leap into action to implement whatever Parliament votes for, but it should be compelled under standing orders to respond. I suggest that the Executive should respond within a couple of weeks, to say, "Yes, we are putting into effect what you have asked for by doing A, B and C," or "It is not legal to do what you have asked," and give reasons, or, "It is not possible because it is not financially feasible, but to try to meet your objective we are doing X, Y and Z instead." The Parliament could then decide whether the response was reasonable and if it did not think it was, pursue the matter in another debate.

I suggested on a previous occasion that we could run the proposal past our parliamentary groups. The only hostile comment I got from our group was that it was badly timed and would be seen as anti-Executive action, which it is not—it is a response to a series of events that brought us all bad publicity and it is an endeavour to balance the powers of the Executive and the Parliament. It is an issue that is worth pursuing. I hope that the committee agrees that the suggestion should be conveyed to the Executive. Thereafter, we could hold a debate on the issue, at which somebody may have a better suggestion about how to deal with the situation.

I do not suppose you would be prepared to tell us whether it was George Lyon who complained that it was an anti-Executive proposal.

It was not, actually.

Did you feel that the way in which the Executive handled the particular incident—I do not mean the final decision in the debate, but when it discussed whether to come back to Parliament or whether it had the ability in effect to ignore Parliament, but ultimately came back with a statement and a debate—was the correct way? Would your proposal make much difference, because I am not clear what is different between what you propose and what the Executive ultimately agreed to do on fishing?

That is a fair comment. A lot relates to how things are done. In the heat of the moment, unhelpful remarks were made on all sides of the argument. I felt that the Executive was trying to respond to the issue of short-term assistance to fishermen. Whether that short-term assistance was effective is a matter of opinion. I was persuaded to vote for it, but I have doubts as to whether my vote was well cast.

I am not trying to go into the rights and wrongs of the issue; I am trying to stay with the procedure. You will remember that there was a discussion about whether the Executive could simply turn its face against what was decided. Ultimately, there was another debate the following week. It may be that the issue did not move on, but the Executive came back and won a vote. That is in effect what you are calling for.

The only difference I can see between what happened and what you are calling for is that you are asking for what happened to be accepted as the practice, rather than something that is—as it appeared to be in the particular case—in the gift of the Executive. That is, the Executive happened to decide to proceed in that way, but it argued for a few days that it did not have to. What you are asking for is just recognition that what was done was the proper way to sort the matter out—whether you like the ultimate decision or not is immaterial—and that it is the way in which any similar circumstances should be dealt with in future. You are looking for a statement from the Executive saying, "If we lose a vote in Parliament we will come back with a response." Is that a fair summation of your position?

Yes. I am not sure that the wording of the Executive motion in that instance was in line with what I propose, but in effect, it was an Executive response, which is what I am asking for. Just in case a future Executive takes the line that it does not have to pay any attention to a vote in Parliament, the procedure should be laid down in standing orders.

I disagree with Donald Gorrie's suggestion that the procedure needs to be enshrined in that way. He touched on the key issue, which is the handling strategy in the 48 hours after the vote, rather than the fact that, in the following week, the Parliament readdressed the issue. Irrespective of the differences of opinion among members of our political parties, it would be inappropriate to enshrine the procedure, as the situation would probably have arisen as it did anyway.

The broader concern in Donald Gorrie's submission is the handling strategy. It would be inappropriate to enshrine a procedure when mechanisms are already in place. Thinking outside the box, it is clear that it is a political judgment to ignore the Parliament's intention and that the Executive will pay the consequences if it continues to ignore it. Political judgment must be exercised and that is a better way of dealing with such situations than having the procedure enshrined in new guidelines.

There is no doubt that the situation that led Donald Gorrie to produce the paper brought parliamentary procedure into disrepute. The general public expect the will of Parliament to be acceded to. Whether we should constrain the Executive procedurally and how we could do so are much wider issues and I am not sure that Donald Gorrie's suggestion would address them. He is trying to ensure that the Executive follows a certain course of action if it is defeated.

Would it be reasonable for an Executive to return to the Parliament repeatedly, seeking a fresh mandate to do what it wishes, without subsequent action? I do not think that we should leave the matter wholly open, as Frank McAveety suggests, and allow the Executive to react to a defeat in whatever way it feels is appropriate, but I am not sure how any procedural constraints could be implemented. Donald Gorrie's proposals would not prevent what happened from happening again.

Except that, initially, it appeared that the Executive would not accept the defeat, although it subsequently thought better of that. Donald Gorrie is trying to lay down some kind of procedure or addition to standing orders, but those are secondary considerations. The issue is whether we want to engage with the Executive and suggest that there are proper ways in which to respond in such situations.

I agree. We need to find a mechanism that is widely understood for dealing with a Government defeat on an issue. Perhaps we should invite the Executive's view on the matter, as it as well as the committee should give serious consideration to it. The incident did not enhance the reputation of the Parliament or the Executive.

The reaction to the debate in Parliament resulted in the Executive's returning to the issue the following week. Establishing a mechanism to ensure an automatic return to the Parliament would alter the balance of political judgment. In the light of the concern about the result and the Government's reaction to it, it was appropriate for the Executive to call for further deliberations to address concerns that were not voiced in the first discussion. That happened for that specific issue, although the situation might be different on other issues. We should be flexible rather than rigid on the matter of an issue's returning to Parliament.

Our starting point is the fact that the public perception worldwide is that, in a democracy, when a majority votes for something in a Parliament, it happens. In this instance, the perception was that the present Government would just go on until it got its way.

It would keep asking the question—

Yes, it would go for another vote until it won. That damages the Parliament and the responsibility that we all have as MSPs. We would be as well not taking part in debates if the Executive eventually wins.

Donald Gorrie's paper is useful in that it puts the issue on the table, but it does not answer the question. I propose that we ask for an issues paper on what happens elsewhere. That would be worth while. Usually I would come armed: I would ensure that I knew the answer before I asked the question. I do not know the answer. If there is a way of handling the matter in other democracies that works and is seen to work well, I suggest that we ask our officials for a paper on them.

We could ask them to focus on Parliaments where there is a coalition or a minority Government, to see what solutions they have found.

That is a fair suggestion.

There would seem to be broad agreement about how to proceed. My own interpretation of the event is that it was the first time that the Executive had been defeated and that the Executive did not intend to defy the will of the Parliament. That would never be the case. I say that as a member of the main party in the Executive. For the first time, the Executive was faced with a situation and it responded in a certain way. If that response has been interpreted by different people in different ways, that is unfortunate.

The Executive would never have been able to defy Parliament. Not only that; there are plenty of procedures in place by which Parliament can force its will on the Executive, not least of which is a motion of no confidence. There are any number of methods by which we can control the Executive.

We should not follow the suggestion made in Donald Gorrie's paper, not because it is from Donald Gorrie, but because I can envisage that a minority Administration could be defeated quite often—I do not mean any slight to our Lib Dem colleagues by that, but that is easy to envisage, not just in this session but in future sessions. We cannot put a formal procedure in place to tie the Executive to a course of action, so that the Parliament in effect becomes the Executive.

We might need to do further work on the matter, but rather than ask for an issues paper, a more positive step would be to write to the Executive to ask for its views on what should be done in the event of the Executive being defeated. I suspect, and I hope, that the Procedures Committee would welcome the Executive's response. Once we had received the response, we could take a decision on how to proceed if it continues to be an issue.

The Executive might not welcome that, because it does not want to contemplate the possibility of losing votes publicly in the Parliament, or of the steps that it would take if it lost theoretical votes. In this particular dispute, there was strong pressure on the Executive. There was an expectation, eagerly fanned by the press, that because it had lost a vote in Parliament, the Executive would change its policy. In a sense, by asking the Executive for a procedure for such circumstances, we are underwriting the Executive's right to go back for a second opinion. We should know what the likely ground rules are for each coalition and each governmental relationship in each Parliament.

I would like to explore that further. I am fairly open about whether we ask for an issues paper or seek an Executive response as a first step. It is obviously open to us to do both—simultaneously or seriatim.

I do not disagree that we should seek the views of the Executive—we will need to do that anyway. However, I would rather be forearmed with information about what happens in other Parliaments before I have a wee chat with the Executive about Donald Gorrie's proposal. In other words, if we find no resolution to the matter from any other Parliaments I would, to be frank, just pass it back to the Executive.

It might help to shape our expectations if we knew what other Parliaments did. Could we do a little bit of research on other Parliaments, come back with a further report and then consider whether we want to pursue the matter and, if so, how?

Members indicated agreement.

I am obliged to members for their comments. It would be helpful to find out what happens in other Parliaments—I was going to suggest that. However, one Parliament cannot bind another.

I was certainly looking forward, as Kenneth Macintosh was, to the possibility of a minority Government. However, even in the present arrangement, the two parties can break off the coalition and get divorced at any time, but to have an intelligent matrimonial disagreement does not seem to be possible, although it should be. There could be issues that are not coalition-breaking or Government-felling, but on which there might be an opposing majority in the Parliament. I suppose that that was the case on warrant sales. It is a technicality whether that was an Executive defeat.

It would be better if MSPs knew the ground rules. At the moment we do not. I accept that the wording of my proposal to sort that out might not be brilliant. However, we should pursue the matter. It would be interesting to find out how the European countries that have minority Governments—some of them even have minority coalitions, which must be even more difficult—cope with such matters.

That would be helpful, but I suggest that we could simultaneously write to the Executive and pursue the research that Gil Paterson suggests.

I have no difficulty with doing those things simultaneously. We could obviously send a copy of the Official Report of this debate to the Minister for Parliament and ask whether the Executive has any views that it wishes to express on the matter. We could commission some research. We do not want an academic tome, just a thumbnail sketch of situations in other Parliaments. That might help us to make progress on the matter.

If the recent dispute brought the political process into disrepute to any extent, it was primarily because nobody knew what would happen when a vote went against the Executive. The expectation was that the vote meant more than perhaps it realistically could have meant. It might be an important step for us to take to try to clarify what should happen in such circumstances, although I suspect that we might find some reticence about discussing theoretical defeats.

Although I welcome the idea of getting examples from other Parliaments—and, presumably, Assemblies—I suspect that that exercise will not necessarily be helpful to us in so far as, as with many other matters, we will be inventing new rules for the situation. There are not many Parliaments that have the same constitutional arrangements that we have and which are unicameral. I suspect that any information that we get might not be as helpful as that which we might find in other areas of our work. That is a slight caveat so that members do not get too excited about the information that comes in about other Parliaments, which might not necessarily fit what we are trying to do here.

That narrows the research focus to unicameral Parliaments. The clerks had anticipated that. Obviously there are some interesting issues to address. We will see what response comes back and then discuss the matter further.