Official Report 516KB pdf
Agenda item 4 is on chapter 9B of the standing orders. We have a note from the clerks, on which I invite comments from members.
Paragraph 17 of the note has three suggestions that we might care to agree to after considering the issue that Mary Fee has raised: that we make no changes to the standing orders; that we give further consideration to standing order rule changes; or that we highlight it as a legacy issue for next session’s committee. There may be other options that members wish to draw to our attention.
It is a very useful paper that has helped us to get our heads round the issue. I suggest that there is another option. I will go through the three that we have and I will give my reasons why there should be a fourth option.
Option 1 is that we should make no changes to the standing orders. As I said last week, I am reluctant to change the standing orders without careful consideration, but the issue with the Trade Union Bill has highlighted that that is worth pursuing. It came to me when I was thinking about the change to English votes for English laws at Westminster that there may well be times when, although the Westminster Government says that proposed legislation is about England only, we will see that it could impact on Scotland. For that reason, we cannot say an absolute no to changing the standing orders.
Option 2 is to give further consideration to changing the standing orders. I have always said that we should not change the standing orders as a knee-jerk reaction to what the Trade Union Bill threw up, but given what I have said, we need to take a wider view.
Option 3 is to highlight the issue as an important legacy issue. However, given the discussion on the Trade Union Bill, the thinking about different laws that might be coming and how things are changing at Westminster, if we left it as a legacy issue, we would be leaving it in the hands of a committee that had not done the thinking originally.
I suggest a fourth option, which is that we start to think about the issue now. However, I do not want us to rush into anything. We should give the matter considered thought over the next few weeks, and then we can say whether we have had enough time to recommend making a change or whether we should suggest that the next committee considers the issue.
I have a question for the clerks. Last year, we talked about the fact that the Welsh Assembly had decided that it would vote against a legislative consent motion. What happened in Wales with that vote? Did Westminster take any consideration of it?
10:15
My understanding is that the Welsh Assembly agreed that there should be an LCM on the Trade Union Bill, but I do not know how the Westminster Government has responded.
It might be worth having a wee look at that.
We are in touch with the Welsh clerks about developments in Wales.
That is fine. I hope that we get further information on that.
Fiona McLeod made some interesting comments. Does anybody else wish to make any comment? If not, we will move forward on that basis.
Fiona McLeod raised an interesting possibility. As I said last week, I am resistant to changing standing orders on the basis of a dispute over a ruling by the Presiding Officer. However, I accept that the EVEL situation may change things. It may create circumstances in which—I repeat the word that I used last week—“obnoxious” legislation such as the Trade Union Bill will, in some interpretations, be difficult to deal with. Legislative consent motions have no force. I will be very interested to see what happens in response to the decision in Wales, but I suspect that I can predict the reaction of the Westminster Government. Its reaction will be to do nothing at all. It will not be moved by the decision of the Welsh Assembly.
Perhaps we need to create another category that deals with legislation that the Government of the day at Westminster says is only to do with England and Wales, but which we believe has much wider consequences. I think that that is worth doing. I think that Fiona McLeod is right to say that doing that is not the same as doing nothing; it is about establishing what we can do. We should try to give consideration to that approach before the end of the session. I think that there is time to do that. If we were to look at the matter over the next two or three weeks, we might be in a position to make a recommendation to the next Parliament. There will be other recommendations to the next Parliament. I was not a member of this committee when it was drawing up its report on procedures, but I gave evidence to it at that time. The next Parliament will need to consider some urgent changes at a very early stage—at the very start of the next session—and this might be one of those changes.
We have to remember why we are looking at this paper today. We are looking at it because Mary Fee sent a letter to the committee asking that it consider a rule change. That was also part of an amendment that was agreed to by the majority of parliamentarians in the debate on the Trade Union Bill. Clearly, the amendment had to be worded in such a way that it would be competent, but the clear intent of the amendment was that we should focus on what was happening with the Trade Union Bill—which, frankly, is a clear and present danger—with a view to enabling this Parliament to suggest to the United Kingdom Government, by means of an LCM, its very clear opinion that the Trade Union Bill is a bad thing and that Scotland should be treated differently for all the reasons that we rehearsed in the debate, which I will not rehearse here.
There is a timetable for the Trade Union Bill. It is very important that we consider any action in relation to that timetable, otherwise the discussion is moot. I think that we should press ahead with work on a change to standing orders in the knowledge that, in effect, that is what Parliament asked us to do.
This whole matter has very starkly thrown up the absolute lack of status of LCMs. Paragraph 11 of the paper that is before us states:
“the procedure itself has no status or special effect and any clear expression of the will of the Parliament will be effective”.
That shows very clearly that LCMs are not worth the paper that they are written on. I think that the response to the Welsh Assembly’s vote on an LCM will be very understanding, and I agree with Mike Russell that Westminster will just say “Tough.” The paper highlights clearly that the power lies in London.
Having said that, we need to discuss the issue and make progress on it. I think that we should do that as quickly as we can and see where we get with that discussion by the time the Parliament goes into dissolution.
I am not sure whether I should be declaring an interest as a Deputy Presiding Officer, but I speak as a member of the Scottish Parliament. I am fully supportive of the Presiding Officer’s position.
I am reluctant to see a change to standing orders. Although it is the will of Parliament, it might be perceived to be a knee-jerk reaction. The old maxim is “Act in haste, repent at leisure.” Knee-jerk reactions have never been seen as a basis for creating good law.
Furthermore, we are still awaiting the arrival of Smith and we need to see how it interacts with all this. I have to confess that I am not absolutely up to speed on whether there will be an interaction with the proposals, but it would not be unreasonable for Parliament to look into the matter without prejudice. It should be an issue that Parliament takes a view on in the next session in due course, over time and after proper consideration. That would be a reasonable way forward.
There is clearly a sense that the committee does not want to close this off today. We need to address the process that we now adopt, the content that we are looking to develop and the time that we are going to take to do all that. We have to address that during our deliberations.
It might be useful if Patricia Ferguson addresses that in addition to anything else that she wanted to say.
It strikes me that we are in danger of getting sidetracked into a completely separate and different debate. EVEL and the Smith commission are very important subjects and I do not say that they should not be the subject of work by the committee—it would be interesting to look at them.
However, as Dave Thompson did, I refer members to paragraph 11 of our paper, where it says:
“The Convention does not specify how consent of the Parliament (or the absence of consent) is to be obtained or expressed. Chapter 9B sets out the procedure that the Parliament has chosen to help it deal with legislative consent in an appropriate and consistent way.”
It is the 9B provision that has prevented us from having an LCM. Whether it would be effective or otherwise is not part of my argument. My argument is that Parliament clearly thought that it should have an LCM. That was ruled out by the Presiding Officer, who quoted chapter 9B of standing orders as the rationale for doing so. Our attention should therefore be focused on whether we wish to amend chapter 9B, and I think that we do.
I repeat that I regard the Trade Union Bill as obnoxious. Parliament has said that it is obnoxious and it can say it again and again in whatever format it wishes but, regrettably, the reality of the situation is that Westminster holds the cards. What we need is a situation in which, if we need any change, we can express that about bills that may be defined either by the Government of the day or by other rulings as not subject to LCMs. Fiona McLeod’s proposal gets us to that next stage, which is good.
If Patricia Ferguson believes that that should be done before the end of the session, it is possible, although I tend to agree with what John Scott said. It is not necessarily sensible to rush a change through in a way that might get it wrong. To go back to what I said last week, we should not be changing standing orders because we object to a single ruling by the Presiding Officer.
Speaking not as convener but as an individual, there is certainly a difficulty if we seek to take from the Presiding Officer the custody and interpretation of standing orders—or if we are seen to do so. I am not sure that we are necessarily at that point, but that is a risk.
I come back to Fiona McLeod because I have suggested that, whatever we end up with, we need to understand the process from here, the content and the timing. Do you have anything to add to what you have said that might help us in that regard?
I am not sure whether I have anything that would help. I come back to the paragraph in Mary Fee’s letter in which she asks the committee to
“provide the opportunity to vote on an immediate change of the Standing Orders”.
I do not think that making “an immediate change” is the right way to approach a change to standing orders. Having read the paper that is before the committee this week and the one for last week’s committee meeting, I am struck that although we are considering a standing order of the Scottish Parliament, which we have to look at, the issue is how it fits in with—how it aligns with—the devolution guidance note and the memorandum of understanding. We should not make an immediate change without understanding—given that there is an MOU and a DGN—that, if we introduce a standing order that interrupts that alignment, that will either have the effect that we wish it to have or again be an empty gesture, with the Scottish Parliament shouting into the wind. I would like us to start working on that issue. Doing so could perhaps help us to formulate exactly what we need to do.
That is fine in a sense, but can you perhaps further illuminate the process? I am merely throwing in some suggestions as things that the committee might do. Do you envisage inviting evidence? What is the process from here?
I appreciate Patricia Ferguson’s point that there is a demand in some quarters for immediate change, so can we look at two draft standing orders, one of which would achieve what Patricia Ferguson wants to achieve, and one of which would achieve what Fiona McLeod wants to achieve? We can then make a choice.
I will come to Patricia Ferguson in a second. As convener, I want to be clear about where we are heading today. As a matter of process, we have a specific set of words that Mary Fee has proposed be put as a change to standing orders. On one side of the discussion, I have a clear set of words and there is no ambiguity. On the other side, I do not yet have a clear set of words. That leaves me, as convener, with a bit of a difficulty, as I cannot put two propositions.
The concept is clear, and I think that the clerks would be able to capture it in a draft standing order. The concept is that there would be an additional category—8 or whatever it is—which would be for legislation for which a legislative consent motion was either not sought or not permitted, or whatever the language is. Such a category would allow the Parliament to give an opinion on the matter, even if there was no LCM.
So we are looking at—I pluck this out of the air—a new paragraph 9C of standing orders, which has something appropriate in it.
Patricia Ferguson has been dying to comment.
Paper 1 is before us on the basis of the letter that we had from Mary Fee and people’s anxiety about not rushing into making a change without considering what is before us. However, we are now proposing that we should rush into something else without having a paper to consider.
No, we are not.
I think that we are. The paper that we have in front of us refers specifically to the situation that applies in relation to chapter 9B of standing orders and the Trade Union Bill. We either want to do something about the Trade Union Bill—as far as we possibly can—or we do not. That is quite a straightforward matter.
However, any other change that brought in anything new to deal with any perceived circumstances would, in and of itself, have no more status than an LCM. I do not see why we would, at this stage, want to open up that debate when Smith has not been finalised and when the Devolution (Further Powers) Committee is looking at all of that, whereas with chapter 9B we have a recommendation—or at least a view; it is not necessarily a recommendation—from that committee and we have the view of Parliament. We really need to focus on that. If we do not, we are abrogating the responsibility that our colleagues have given us.
10:30
I utterly reject that. There is no abrogation of responsibility. This committee is performing the function for which it exists, not only to consider standing orders but to be part of the stewardship of standing orders. It is absolutely right that that function is fulfilled, so I absolutely reject Patricia Ferguson’s view on that. I am not saying that she is pushing us this way but we are in danger of an interpretation being given out that if members are not in favour of Mary Fee’s suggested change, they are in some sense in favour of the Trade Union Bill.
For the record, I repeat for the third time, as strongly as I can, that I regard the Trade Union Bill as uniquely obnoxious. Equally, if we were to overrule the Presiding Officer—essentially by changing the rules because we dislike a single ruling from her—that would be the wrong thing to do for the future of this Parliament.
The question is how we move forward. Fiona McLeod has made a positive suggestion that we could consider. However, I entirely reject the idea that if we do not assent to Mary Fee’s suggestion, we are in some sense wimpish about the Trade Union Bill and in some sense defying the will of Parliament.
I have just taken some advice on one aspect of this to be clear about the difference between an LCM and a motion that is identically worded but is not described as an LCM. There is one difference—I will be hauled in by the clerk if I get this wrong. The one difference is that, if it is an LCM, the clerk of the Parliament writes to the clerk at Westminster to formally draw Westminster’s attention to the opinion of the Parliament. If it is not an LCM, that process does not of necessity take place, although it is not prevented from taking place. That is possibly the immediate missing link that we might care to discuss.
Well, that is easily bridged.
Mr Russell will forgive me—Mr Thompson has been catching my eye quite agitatedly for some time so I will give him his due and then come back to Mr Russell.
Thank you, convener. I deny being agitated. As a lifelong trade unionist who organised his first strike when he was 14 years old, I—like Mike Russell and many folk in this Parliament—abhor what is happening with regard to the Trade Union Bill being imposed on us by Westminster. My father was also a trade union activist—in Morayshire, which was a strong Tory area back in the 1930s. It was a difficult thing to do; it was easy to be a trade unionist on red Clydeside, where everybody else was a trade unionist, but in Morayshire, you were very much on your own.
However, if we move too quickly on this and if any suggestion is made that Parliament should take over responsibility for such decisions from the Presiding Officer, we will be in real danger of getting ourselves on to very dangerous ground.
This has to be dealt with properly, with proper thought given to it. It has nothing to do with anybody’s position on the Trade Union Bill. Mike Russell and I, and others, have made our position on that very clear. It is about proper governance and proper procedure within this Parliament. We on the Standards, Procedures and Public Appointments Committee have a duty to make sure that we get these things right.
I will call Mike Russell, Patricia Ferguson and John Scott.
If the issue is the letter from the clerk of the Parliament to the clerk at Westminster, I am sure that it would be possible to request that by special resolution. Indeed, I would be happy to support any member if they were to lodge a motion drawing attention to the debate that took place on the Trade Union Bill and saying, ”Here is the information.” That is fine. However, it would be highly dangerous to change our entire standing orders to do that.
I support what Mike Russell and Dave Thompson have said. Forgive me, Patricia, for jumping in before you but we are the custodians of the law in Parliament as well as the creators of it. As I said, it would be a pity to act in haste and repent at leisure. There is a real danger of doing something precipitate and unreasonable here, and I think that we should avoid that at all costs.
For the avoidance of doubt, I am not accusing anyone of being in favour of the Trade Union Bill—quite frankly, I do not see how any right-thinking person could be in favour of it—and I do not feel the need to rehearse my trade union credentials in order to back up what I am saying. Most of us in this room are trade unionists—we are all probably active trade unionists to a greater or lesser extent—and I suspect that we are all very proud of that fact. This is not about whether we are in favour of the Trade Union Bill.
When we had the debate, I was conscious of the fact that a letter would go from the clerk of the Parliament to his opposite number at Westminster if an LCM was agreed to. For that reason, I suggested in my speech at the time that perhaps our business managers might collectively like to go to 10 Downing Street with a copy of the Official Report and present it there. I still think that they might like to do that. I would certainly be happy to join them in doing that if they wished me to be there—I am sure that many of us would be happy to do so.
The point that I am trying to make is that I jealously guard Parliament’s rules and regulations, too. I was a Deputy Presiding Officer in a previous life—that was a very long time ago—and I have a lot of sympathy with the idea that we should not move precipitately to change the standing orders. However, it is a fact that we discussed that last week and, as a result of that discussion, we have paper 1 in front of us. That was supposed to facilitate our having a discussion about whether we wish to move to change the standing orders. My opinion is that we do, although others may have a different view.
This is not about whether we are in favour of the Trade Union Bill; it is just a procedural issue. We have probably rehearsed all the arguments, and we should just move to a decision on the matter.
Convener, I—
Just one moment, please.
Let me put to members the sense that I am getting from them and test whether I am reading what is going on.
First, we agree that we do not intend to revisit in this meeting the substantive issue of the Trade Union Bill—that is beyond doubt.
Secondly, I am getting a pretty strong sense, although the view is not unanimous, that we do not wish to recommend the change that Mary Fee has put to us at this stage and in that form. Equally, I get the sense that we wish to encourage Parliament by means as yet perhaps not fully understood to ensure that it formally notifies Westminster of its views on the piece of Westminster legislation in question, as would have been the case if an LCM had been agreed to. As I say, we have to explore how that might be done.
Convener—
Just one moment.
We have not rejected and therefore still have on the table Fiona McLeod’s proposal that we look further at whether there are standing order changes that it would be appropriate to make, having dealt with the immediate issue in the way that I think we are getting to.
Have I sensibly summarised where we are just now? I address that question at Patricia Ferguson in particular.
Yes, but my fear is that we are losing our focus.
I understand and respect Patricia Ferguson’s point, but in the summary that I came up with, I proposed something to enable us to complete what we are going to do today, although it will not complete the issue. I propose that we do not agree at this stage to bring forward the change that Mary Fee has suggested, although I hasten to say that we are not dismissing it, either. We are inviting Fiona McLeod to work with the clerks to bring forward an alternative formulation. I think that that has to happen. We will invite the clerks to consider that. We will also invite the clerks to explore how we can get the Parliament to notify Westminster, in a proper, formal sense, of the view that we have expressed through a non-legislative consent motion.
If it is the intention or will of the committee to notify Westminster of the view of the Scottish Parliament, which I am certain it is aware of anyway, what we do must be done within the remit of the Scotland Act—it must not be ultra vires. The issue is difficult, but I would not wish it to be seen as challenging the authority of the Presiding Officer, either. That is vitally important to the principles of our Parliament.
I will reiterate something that I have said before. Like all other committees, in the run-up to dissolution, this committee will produce a legacy document. I am very aware that I am a guest on the committee today but I believe that the issue that we are discussing should either be first or extremely high on that document’s list of things to be addressed. Alternatively, as I have said, the committee should begin an inquiry into the process while we await the outputs from the Smith commission and their effect on our Parliament in due course.
I know that I am repeating myself, but I think that it would be precipitate to make this change before the full impact and implications of the Smith agreement are in front of us.
You are a full member of the committee while you are here as a substitute member. I am delighted to see you, and you are substantially more than a mere guest.
Convener, in your summary, before John Scott’s contribution, you mentioned that Fiona McLeod’s suggestion was an alternative to the proposal. I do not see it as an alternative; I see it as a different workstream. However, I think that the two things have to be kept separate. We have to dispose of Mary Fee’s proposal, one way or another. Anything else is a different matter.
Patricia Ferguson makes a fair point. I was not seeking to put the two propositions in opposition to each other, because we do not know what the other proposition—should one emerge—would be. All I am saying is that we should not dispose of Mary Fee’s proposal at this stage until we see whether there is another proposal that would be either additional or in distinction to it. At this stage, I simply do not know where we are going to get to on that issue.
I thought that your summary was entirely fair, convener. If we were to proceed on that basis, we would want to dispose of the proposal at our next meeting. However, we need to get a little bit more information.
For clarity, I do not envisage that the committee has the power to take action on notifying Westminster. However, we have the power to ask that we go away and find out how that might be done and what the processes are.
Are the clerks quite clear on that matter? I see them nodding.
We are not proposing to send you with the letter, are we?
Not unless Parliament takes a quite extraordinary decision.
Well, it would be interesting.
Parliament has the power to send me if it chooses to do so, and I would, of course, do that.
I think that that draws this discussion to a conclusion.
I just want to make one small point. Last week, we agreed not to dispose of the item concerning Mary Fee’s letter and the consequences thereof, and that we would get a paper and do that this week. Now, however, we seem to be saying that we are going to do that next week. I respectfully ask that, next week, we absolutely come to a decision, because the timetable is tight.
I think that, at this stage, I can only note your observation. I absolutely understand the issue of the timetable, which is of course why, when the subject first came up, I spelled out our understanding of the parliamentary timetable in Westminster.
That concludes this meeting. Thank you for your support and assistance. It sounds like we will meet briefly next week, not for stage 2 proceedings but to address the issue that we have just been discussing. I think that a 9.30 start will probably be good enough.
Meeting closed at 10:44.Previous
Lobbying (Scotland) Bill: Stage 2