Sewel Convention and Sewel Motions
We move to agenda item 5.
Some months ago, the committee discussed an intention to pursue the issue of how Sewel motions and the Sewel convention are handled. The clerks have produced or obtained two memoranda from the respective Governments—one from the Scotland Office and one from the Scottish Executive, which is accompanied by a letter from the Minister for Parliamentary Business.
The issue for us is what we want to do in relation to Sewel motions. My judgment is that we are unlikely to be able to bring any work on the matter to a conclusion within the time we have left to us. We are also not likely to be able to issue a substantive report.
On the other hand, we have seven committee meetings left. Within that time, it would be possible for us to undertake some of the initial stages of that work. For example, we could interview relevant officials from either Government. The Minister for Parliamentary Business has also indicated a willingness to speak to the committee about the matter. There are also academics who have been involved in the growing volume of academic literature on the matter, one of whom has expressed a desire to come and speak to the committee.
Realistically, we could only start some work that we would be unlikely to finish. However, we could arrange one or two evidence sessions if members want them. Once we have finished the consultative steering group inquiry report—I believe that that will happen—there will not be an awful lot left for us to do, so we will have time for such work. I seek views on how to proceed.
Sewel motions should be seen to be treated seriously and the time scale for dealing with them should be extended so that the relevant committee can examine and sensibly discuss a motion. I say with respect that the discussion of Sewel motions in the Parliament is often not well informed or sensible. If a relevant committee considered a Sewel motion that was found to be technical and trivial, the committee could say that it was all right. If a more substantive issue were involved, that committee should be able to take evidence and discuss the issue thoroughly. Those are my concerns.
It is vital that the committee should consider the matter properly. As I have a place in history for moving the first Sewel motion, I argue that such motions have a time and a place, but I acknowledge that valid concerns must be addressed. It is important for the committee to take a measured look at the issues, rather than to have the more politicised exchange that often takes place on Sewel motions.
Detailed points need to be considered about the process and about mechanisms of consultation between Westminster and us. The meaning in practice of some phrases in the Scotland Office's memorandum requires to be drilled into. However, as the Executive's memorandum says, issues that relate to our consideration of Sewel motions once they have been introduced must be addressed.
The issues are important and detailed. I would be concerned about our having a couple of evidence sessions that threw up more questions than answers and that did not allow us to conclude our deliberations. I would like the committee to agree, as one of our lasting monuments for the next Parliament, that Sewel motions require further examination and that a thorough stocktaking exercise is required, now that we have the experience of one Parliament on which to draw. During this parliamentary session, perhaps we could instruct the clerks to gather information. I am aware of relevant academic papers and other papers that have been circulated to members. At the very least, an exercise in collating views must be conducted.
I would like us to make a strong recommendation or proposal—whatever the correct terminology is—that the new Parliament should examine the matter. I feel strongly that we cannot begin to do justice to the issue. Rather than attempt to do so, it would be better to put the CSG inquiry report to bed, tie up loose ends and leave it to our successors to do the job properly on an important procedural question.
I endorse what Susan Deacon has said. Members seem to be ill informed, or not exactly up to speed, on what Sewel motions are coming up. A more important issue is that there seems to be no mechanism for tracking bills that have been the subject of Sewel motions. After the motion has been agreed to, the next time we hear about the bill is when it has been enacted at Westminster. There are many issues about Sewel motions that we need to look at carefully and in depth, not in a hurry.
One would think that the natural instinct for a new Parliament would be to grab everything, so having 38 Sewel motions does not look good. Whether they are a good thing or a bad thing, we should look at the issue carefully and do so soon. However, I take on board Susan Deacon's point about timing. If we are serious about the issue—it is politicised—and want to do it justice, perhaps the time to consider it will be during the next session of Parliament, when we can conduct a good, in-depth inquiry.
Could the committee not discuss the issues without being particularly politicised? We would be very much at an exploratory stage over the next two months.
Had I been asked that three and a half years ago, my view might have been different. However, having been a member of the committee for all that time—I have been here since the start—I think that this is one committee in which we do not play a lot of politics. I would not argue against your point. The committee could consider the issue in a non-political fashion and come up with some good answers.
The issue is more to do with the time scale.
Yes. I am a bit concerned that we might rush in and go off at half cock. I would rather examine the issue in depth, because it is important. We have been told that not too many important issues have come in the form of Sewel motions, but I remember a couple of debates that were very politicised. I am more concerned about what might happen in the future and what might be grabbed from the Parliament. We might face political pressure from somewhere else that lets something escape. I am thinking not so much about the past as about the long term. I am looking to the future.
I agree with both Susan Deacon and Gil Paterson. We need an opportunity to capture both the disadvantages and advantages of Sewel motions. That will require our hearing a wide range of views in evidence sessions. Given that we have only seven more meetings after today, it would be difficult to get quality sessions and to avoid rushing through the issue. We should allow members to consider the issue in detail in the next parliamentary session, as they will be able to take some time over the matter. The Sewel motion procedure raises wide issues and has been subject to commentary since Susan Deacon moved the first one. There are advantages and disadvantages to Sewel motions, so we require a detailed discussion and evidence.
It has been suggested that we could collate some evidence but not take a decision, but such evidence would be difficult for the new committee to take on board. On many occasions, we are accused of being a talking shop that is unwilling to take action. If we just allow the new committee to capture all the detailed evidence over a period, it might then be able to provide alternatives to the Sewel motion. The issue for me is that, although some mechanism is required, no one has been able to provide an alternative to Sewel motions. That should be the subject of the new committee's work.
I am conscious of the fact that we last discussed the Sewel motion procedure some time ago—on 11 June last year—and that we have discussed it on several occasions. I am a bit wary of saying that we cannot deal with anything in the next seven weeks. The committee was originally contacted by the Liberal Democrat group, which asked us to have a look at the issue, so we would not be fulfilling our obligations if we did not make some attempt to do so. However, I agree that the issue covers a huge area, so we would need time for consideration and to come up with any conclusions.
Gil Paterson made an important point. There is a lack of clarity about the Sewel process, although the documents from the Scotland Office and the Scottish Executive have started up the clarification process.
It might be helpful if we were to conduct a scoping exercise on the issues that surround Sewel motions, some of which are fundamental constitutional issues. Even those who are in favour of the process need to know how it works and the practicalities involved. The memorandum from the Scotland Office states:
"although the Sewel convention refers to the Scottish Parliament, UK departments in practice deal with the Scottish Executive."
That is a huge admission.
We could examine the papers that we already have and seek further information and clarification. That would be of benefit, particularly to those who want to know more about the Sewel process. It would not prevent our successor committee from taking a view on it or making a recommendation. Some clarity would be helpful.
Way back in June, I recommended that it might be helpful to do case studies on issues of particular interest. For example, the Adoption and Children Bill had to come back to the Parliament twice. It would be useful to know why that was and to find out what steps were involved in the process. Even though there were substantive changes to the Proceeds of Crime Bill during the relevant stage at Westminster, the bill was not referred back to the Parliament. Paragraph 12 of the Executive's paper says that, if significant amendments to a UK bill are made,
"The Executive will always inform the Parliament by means of a Supplementary Memorandum".
I might be wrong—that might have happened, but I am not sure whether it did.
In the next seven weeks, it would be useful if we could get the Minister for Parliamentary Business to clarify the operation of the process. We could examine some case studies that might shed light on the process and we could do a scoping exercise on all the issues that surround Sewel motions. That could include an academic analysis. We would not need to conduct our own investigation, but it would be useful if we could provide some sort of scoping. That would mean that we would end the parliamentary session with a better understanding of Sewel motions than we had when we began it. Leaving such a legacy would be the responsible thing to do.
I hope that, by doing such work, we would satisfy the inquiry that set off our consideration of the issue. I do not like leaving things half done, particularly as one of the parliamentary party groups asked us to look at the issue. We could do some useful work, but that would not preclude due consideration by a future committee, which would be necessary before any judgments could be reached, as Paul Martin suggested.
You said that you would like us to do some case studies. What are you suggesting that we should do? What are you suggesting that members of the committee—as opposed to the clerks—should do in the way of preparatory work for the next committee?
The Proceeds of Crime Bill would be a good example. We could find out about the Scottish Executive's perspective on what happened and why it did what it did. We could make inquiries of civil servants here and of those in the Scotland Office. There must have been significant changes to the Adoption and Children Bill, because it was brought back to the Parliament twice.
I am not disputing that those might be the most significant bills to consider. What are you suggesting that we should do?
Rather than having a committee evidence session, we could ask the clerks to document matters. If necessary, we could then clarify the issues if we wanted to. If the Minister for Parliamentary Business has offered to come before us, we should take that offer up. The clerks could conduct some of the process outwith meetings. We could ask Lord Sewel for his perspective on Sewel motions, since he was the originator of the concept. We could do some useful preliminary work.
I am not sure that it would be appropriate to consult Lord Sewel, given that responsibility for the procedure rests with the Scotland Office. It is not usual to go back to people who used to hold a ministerial portfolio. However, he could be invited as an individual or as an academic.
We went back to the CSG to ask for its perspective on the operation of its principles in practice. That is a useful analogy.
It would be useful to ask the clerks to examine the procedures that were followed in all cases and to gather the relevant memoranda and information that were produced. I am not sure what we would do, unless we were to start the investigation. I am not sure what we would call the Minister for Parliamentary Business in to do. The minister has suggested a number of changes that she might want to make, but we might want to be further into the process before we talk to her, so that we have more points to put to her. Of course, I dare say that she might agree to come more than once.
We are generally agreed that there is a need for the committee to examine Sewel motions, which are matters for constitutional interpretation and therefore touch on an issue of importance to all parties in the Scottish Parliament. However, not only are Sewel motions politically sensitive, but the process that is involved is unsatisfactory. Many of our debates on Sewel motions have been fairly bad tempered—often, we have not engaged with the substance of the motion but have disputed the process itself. That alone would be an adequate reason for examining the matter further. The Scottish Parliament should come to an agreement on what the Sewel motion process is about so that we can properly interrogate the legislation that comes before us by that route.
Some work needs to be done on the point that Donald Gorrie made about the need to clarify the role of committees. When do Sewel motions go the chamber? When do they go to committees? When do we have a full debate? When do we have a guillotine debate? The role of committees is crucial.
We have seven weeks to go. I am conscious that we have not finished the report on the CSG inquiry. I do not know how long it will take to finish it—not too long, I hope. Until that report is finished, it is difficult to see how we can do justice to the matter that we are discussing. I appreciate that Fiona Hyslop is trying to reach a compromise about raising or scoping the issues or doing some preliminary work, but I do not know how we will be able to do that. How will we be able to move on from today, given that we will not have reached any conclusions? We have not been able to engage with the issue substantially or with any rigour because we have had no time. There will be a long pause of several months before we can return to the subject, even though it is of huge importance to us all.
I am not against further discussion of the subject, but I think that we should deal with it if we have any time left after we have finished with our other business, such as the CSG report. Alternatively, we could recommend in that report that the Scottish Parliament should examine the Sewel motion procedure as a matter of priority.
That is already in the report. It is recommended that this committee should do that and that, if we are unable to, our successors should deal with it as a matter of high priority. Even when we were drafting the CSG report months ago, we were conscious of the likelihood that we would be unable to deal with this matter.
The suggestion of doing case studies is useful. Part of the problem, as with the CSG, is that there is a limit to how much one can say about such practices in the abstract. We have to examine how they have or have not worked in practice. Four or five years into the working of the Parliament is the correct time to do that.
However, it is not realistic for that kind of exercise to be done in the time that is available. I am not sure that the clerks are best placed to conduct that exercise. I see scope for yet more protracted exchanges of correspondence between the Executive, the committee and/or Parliament and the Scotland Office, which is another player. Already, this very early stage has lasted for quite some time.
I wonder whether there is scope for us to commission a piece of independent work on the subject. When the Standards Committee looked at cross-party groups, the inquiry circled in a similar fashion and a piece of independent work had to be commissioned simply to make a factual record of what worked and what did not. That provided a base from which members could make their judgments as to how they should proceed.
I feel that a piece of work is missing in this case. Were it to be commissioned, it would add to our successors' capacity to examine the matter effectively. An element of independence would also be useful. Perhaps a body of work already exists which answers these questions. The subject area has attracted more academic projects than most, which is why I feel that the clerks should do an audit of what information and analysis is available. In the limited time that we have, we should concentrate our minds on plugging the information gap. However, we should not attempt to take the discussion any further. To take on evidence sessions at this stage would be tokenistic.
I am reasonably attracted to what you say, with the caveat that we cannot go as far as engaging people outside. We would need to get a brief for the research, work up a proposal and get funding. I do not think that we can do that.
However, the clerking team has been gathering information. It may not have collected all or enough information, but we could invite the Scottish Parliament information centre to scope a research project and to advance a proposal—covering an adviser and a budget—for the new committee to consider before the summer recess. That work would inform the new committee's deliberations when it looks at the issue in the autumn, assuming that it chooses to do so. Once a committee starts down the road of factoring in budgets and external personnel, there are significant checks and balances and some delays might be expected. My preference is to invite SPICe to scope an independent and authoritative briefing for the successor committee.
I agree. Seven weeks does not give us enough time to get an external research project done. What I was asking for in the first place was to have the relevant information gathered together, because we must also agree the scope of what we want examined. The subject ranges over several areas. It would be helpful for us to decide initially which of the issues that pertain to Sewel motions should be considered. Some issues relate to simple process and practice, whereas others are more fundamental.
It is unfortunate that we cannot go with Susan Deacon's recommendation for commissioning external research, but, as that is not practical, this initial stage is best. Thereafter, any committee should do what Susan Deacon recommends if possible.
Ken Macintosh mentioned practicalities. Currently, the Parliamentary Bureau is presented with proposals for Sewel motions. It can—and has—decided whether the motions go to committees or to the chamber. The Executive is presenting a paper suggesting some simple changes and it is looking for views from the Procedures Committee on current practice. I suspect that, if our successor committee were to look at the issue, that would take months. Nevertheless, Sewel motions will arise between now and 1 May, and from day one of the new parliamentary session. For that reason, initial guidance and views from the Procedures Committee about how the motions should be treated would be a helpful and practical interim step.
I support the motives for raising some of the issues and believe that we could deal with some matters practically. It is true that the Minister for Parliamentary Business or the new Minister for Parliamentary Business might want to come back and give an overview as part of a bigger inquiry, but we could ask the current minister whether anything useful could be done in the interim to deal with Sewel motions as they come before the bureau and the Parliament.
That distils the matter down to two possibilities, which are not incompatible. The first possibility—which I think members agree about—is that we invite someone from the Scottish Parliament information centre and possibly someone from the legislative team to consider the research, to conduct a literature review and to draw up lines of analysis and questioning. External people—perhaps an adviser—could be taken on and a brief worked up so that the successor committee can progress the substantive work. Perhaps we need to make a specific proposal once we have chewed the matter over, but the outlines are clear enough.
The second possibility, which Fiona Hyslop has just outlined, is that, as well as considering the whole issue and how to deal with it, we could deal with those areas of operational significance that the Minister for Parliamentary Business has indicated she is willing to discuss. Amendments to practice, additional safeguards or checks could be built into the process to try to make the existing machinery work less contentiously than it has done. We would have to discuss such matters with her. Do members want to invite the minister to the committee soon for a discussion on improving the process, albeit that such a discussion would go considerably short of fully analysing the whole procedure?
I do not have a problem with that. I cannot see why it cannot be done, provided that we do not say that it is the answer to the problem—it is a bolt-the-doors-down-for-a-few-weeks approach. There should be a protracted investigation that takes into account all the different factors.
I am not averse to the suggestion. If we are saying that such a session is not a full solution to the problem, clear parameters need to be drawn in respect of the session's purpose. We could drift into and open up many wider areas, rather than pinning down the issues.
Regardless of whether we have such a session, I would like a short paper with a few points extracted from the Executive's paper highlighting specific points for decision. We should take on board what Fiona Hyslop said about changes that could be made sooner rather than later and that we could all agree would be operational improvements, albeit that they would not address the bigger question—I am not convinced that we need further discussions around that. Perhaps some of the information is already there and could simply be put in front of us.
We often invite ministers or witnesses to the committee and tend to have free-flowing discussions. We could get to the point pretty quickly on the basis of what we already have. However, we should all agree that there should be a big health warning that what we are doing is not a solution to the issue, although some immediate improvements could be made. Perhaps the convener and the clerk should look at the matter before the next meeting and think of the best way forward.
We could certainly compose a response to the minister that would address some of the operational issues and we could bring that back to the committee for discussion. We could agree to discuss the matter with the minister and put it to her that we like some of the suggestions that she made but wonder about other things. We can discuss with the minister the scope for any changes.
This is not a question of demanding that the minister come to the committee; the minister has said that she is quite happy to come and talk. It is a question of whether the minister feels that the distinction that we are drawing between the short-term operational issues and the fundamental review of the procedures is worth while and whether she sees value in having some sort of discussion before we run out of time. If we proceed on that basis, everybody should be happy.
I agree that that is a sensible way in which to proceed. I would welcome further clarification of our timetable between now and the end of the session.
We have seven timetabled meetings left after today's meeting. Next week, we will consider a further draft of our CSG paper. Depending on how we get on with that, we may need to have another meeting. We probably will have to have another meeting, if only to discuss the writing up of anything that might come out of the next items that we will discuss. I do not think that we will be able to finalise a draft today. I hope that we will make most of the substantive decisions next week.
I say that with the caveat that the clerk and I have worked up revised versions of the committee's third draft of its CSG report. We have still to reconcile our two versions. I have made some suggestions and the clerk has made some suggestions, and we want to arrive at a common position. We hope to do that this week. As before, we will highlight the substantive new text. There are lots of wee bits of editing that we could do, but the substantive new text will be highlighted and I hope that we can agree to most of it next week. However, we may need a further meeting beyond that.
Thereafter, I am not sure that there is a lot that we can deal with. The Parliament has still to act on our recommendation about the European Committee's remit. However, we do not need to spend long discussing that again. There is some unfinished business surrounding our remit, which we may choose to leave in the CSG report or to include in another report. Offhand, I cannot think of anything that is pressing. Beyond next week and a further possible meeting, the remaining committee meetings ought to be fairly light. I think that we deserve that, given what we have done over the past two years.
On a short-term basis, we should recommend—either in our CSG report or elsewhere—that, as an interim measure, the Executive should ensure that committees can have a look at Sewel motions in advance, so that they can say, "This is a beneficial, minor and technical change, so let's go with it," or decide to consider the matter more thoroughly. Sewel motions obviously have some gestation period in the Executive and at Westminster. Even if the wording of the bill is not available, the Executive might draw a committee's attention to the fact that there would be a bill to include propositions about the shape of teacups and that it would like to agree to draft a Sewel motion on that. That would be helpful as an interim measure without precluding anything in the future. I hope that we can include that as a recommendation.
I think that we agreed to determine a basis on which the committee could draw up a response to the minister that would contain the possibility of a meeting, if we all felt that that would be worth while. With respect, Donald, you are taking us back to substantive points and rushing the fences a wee bit. What you suggest may very well be part of something that we would put to the minister in a letter, but we should consider the draft letter first. We are talking about a delay of a couple of weeks. If we agree to any procedural improvements, they are likely to come into effect after the election, given the gestation period.
I think that we have agreed a sufficiently clear path ahead to allow us to take the matter to the next stage. I see members moving towards the coffee pot. Do we want a five-minute break?
No.
Then we shall press on.