Sewel Convention Inquiry
Good morning, colleagues, and welcome to the seventh meeting in 2005 of the Procedures Committee. This morning, our business starts with further evidence on the Sewel convention. I am pleased to welcome to the meeting the Minister for Parliamentary Business, Margaret Curran. She is accompanied today by Colin Miller, Paul Allen and Murray Sinclair. I invite the minister to make a few opening remarks and I will then open the meeting to questions.
I am pleased to be here to give evidence this morning. As I think you all know, I strongly welcome the committee's inquiry. The discussion about Sewel motions has been with the Parliament for some time. The Parliamentary Bureau has discussed the matter and it, too, welcomes your inquiry. My officials and I have followed it with considerable interest and we genuinely look forward to the conclusions because they will help the Executive in taking its work forward. The inquiry is useful and timely, because we are considering similar issues.
In our view, the Sewel convention is an important and valuable aspect of the devolution settlement. Many of the academics and commentators who have given evidence to the committee pointed out that it is difficult to see how the devolution settlement could have operated successfully without the Sewel convention. As Alan Trench commented in his evidence, the convention is
"a practical necessity, such that if it did not exist it would be necessary to invent it."
The starting point, as all your witnesses have recognised, is the fact that the first principle of the convention makes sense. Far from undermining the devolution settlement, as is sometimes suggested, the convention reflects and respects it. It recognises that although in legal and constitutional terms Westminster can legislate on devolved matters, it will not normally do so without the Scottish Parliament's consent. In practice, since devolution the United Kingdom Government has never knowingly breached the convention. The UK Government recognises that the Sewel convention is an essential part of the devolution settlement and it is instrumental in ensuring that it works well.
On some occasions, the perfectly valid and well-accepted principles that underlie the convention have been ignored for—I argue—essential political reasons. In such cases, unfounded assertions have been made that powers are somehow being transferred back to Westminster. I do not believe that such assertions bear scrutiny when we consider the evidence, but a good deal of misconceptions and misunderstandings have grown up around the convention and they have created a degree of misplaced and artificial public and political controversy. We are happy to address that. I hope that we will get an opportunity this morning to deal with the range of issues that have led to that position and I hope that we will arrive at some consensus on what the convention is about and the best way to take matters forward.
It is accepted on all sides that there are circumstances in which it is entirely sensible and appropriate for the Executive, with the Parliament's agreement, to invite Westminster to legislate on devolved matters. In my memorandum to the committee, I give some examples of circumstances in which the Executive has invited the Parliament to agree to Sewel motions, and we can talk about those if members wish to do so.
I draw to the committee's attention a point that is important to the Executive: if we did not have the Sewel convention, there would be serious consequences. We would be faced with a stark choice: either we would have to set aside our own legislative plans and priorities to make room for a separate Scottish bill in parallel with the process at Westminster, or we would have to do without legislation that everyone agreed it would make sense to pass. There are a number of commonsense examples of that. The Executive might face the criticism that it was not taking up opportunities that were open to it and was not making the most of the situation in the best interests of Scots. Despite our political differences, I do not think that anybody would want us to be in that situation.
In the situation that we are in—and I accept that some people want to change that—the Sewel convention makes sense both in principle and in practice. As I have argued before, it gives us the best of both legislative worlds at Holyrood and at Westminster. I appreciate that there are a number of issues with the operation of the convention, but I contend that it has improved considerably and that the Executive has played its part in that improvement. Through greater committee involvement, parliamentary accountability has been emphasised time and again. If there is one issue that I want to emphasise today, it is that the Executive wants to co-operate as fully as possible in relation to parliamentary accountability and involvement. It is not remotely in our interests not to be accountable, because when we are as accountable as possible that leads to better and more effective legislation. We are open to ideas that the committee may have on that.
There is always scope for reviewing processes. When my predecessor, Patricia Ferguson, contacted the committee, she made it clear that we are open to agreeing procedural improvements and we want to do that. I hope that as a result of the committee's inquiry and the evidence that it has taken from a range of distinguished people, including Lord Sewel, we can move on to a debate that leads to improved parliamentary processes and improved parliamentary accountability rather than to a rehearsal of the same arguments over and over again.
I re-emphasise how timely the inquiry is and how useful it is to the Parliament and all business managers. The Executive will examine the committee's conclusions comprehensively. We look forward to having a dialogue and, hopefully, a partnership with the committee on improving parliamentary accountability and the legislative process.
Thank you for your opening remarks and for the Executive memorandum that you submitted. You are right to say that the evidence that we have taken from many interested parties has shown that we need a convention similar to the Sewel convention. However, this morning and in your written submission, you have recognised that there is scope for improving the process. Some of the evidence that we have taken indicates that there is a bit of uncertainty among members, never mind the general public, about the categories of Sewels. Some people suggest that it might be useful for the Executive to highlight what category a Sewel falls into when it lodges the motion.
Another issue that has been raised is notice for members. Often members do not know about a Sewel motion until they see it in the business list for a meeting of the Parliament. There is also the question of the time that is available to debate Sewels in the Parliament. Obviously, that will vary depending on the scope of the Sewel concerned. You say that you have read the evidence that we have taken, so you know what issues have been raised. Have you, as a business manager, and the Executive considered ways in which the three problems that I have highlighted could be addressed?
Yes. We have given a lot of thought to these matters. In the time that I have been the Minister for Parliamentary Business, Sewels have been the dominant issue. My one foray into the headlines concerned Sewels, and I hope that I do not make any other unfortunate forays of that kind.
I am perplexed by the fact that there is such misleading comment on Sewels. There are political agendas regarding the issue, which we respect—that is the nature of the game that we are in. However, sometimes there is genuine confusion about Sewels that is not malevolent and is not part of a conspiracy theory or an attempt to do down the Executive or a member of it. I have struggled with the issue of why there are misleading headlines that do not seem to tie up with the evidence. The confusion may arise from the way in which we have communicated about Sewels, where there is considerable room for improvement.
Your first question was about categorisation. The term Sewel is now a bit misleading. I have heard respected commentators and members of the Scottish Parliament say that Sewels mean handing back powers to Westminster. I can get agitated and frustrated and say that that is not the case, but people genuinely believe it and have been led to believe it, because the quick translation of a Sewel is that it involves handing back powers to Westminster. We need to make an effort to clarify the issue for people, as we believe that we have not done that properly. Perhaps some categorisation is necessary. We need to make a clear distinction between Sewels that relate to minor and technical issues and the matters of substance that sometimes arise. One of the academics who gave evidence to the committee said that the Executive goes to great lengths to explain minor and technical issues in case anyone should suggest that it is doing something improper. Sometimes we spend an inordinate amount of time on such issues.
There is another category of Sewel motions: when the Scottish Parliament receives powers from Westminster. Lord Sewel thinks that a Sewel motion is not the proper title for that mechanism. There is scope for categorisation and we will consider it, as it would lead to greater clarity about the use of the convention. Irrespective of where we stand on the principle of Sewel motions and our view of constitutional politics, it is in everyone's interest that there is clarity about the procedures that we are using and their outcome. We are giving some thought to that issue.
I have been giving a lot of thought to the issue of notice to members. We have done considerable work to provide members with more information about Sewels—for example, through the Sewel memorandums that we provide to committees. I think that all Sewel motions are now debated in the Parliament.
Murray Sinclair (Scottish Executive Legal and Parliamentary Services):
Most of them are.
We need consistency. We are looking at mechanisms that we can use to ensure that proper notice is given to members. The focus of my interest has been the subject committees, which have the knowledge to debate Sewel motions. There is proper and full accountability when a committee is consistently involved in the process and has accumulated knowledge of the subject that is being addressed.
However, it is important that all members of the Parliament should be properly informed. Last year, in response to an inspired parliamentary question, I announced the number of Sewel motions that we intended to lodge. I did so to ensure that all members had access to that information. As a result, members knew what playing field they were on, what the Executive's intentions were and what work we were trying to progress, regardless of whether they agreed with us. Because of the improved provision of information, members could attend committee meetings at which motions in which they had an interest were being debated. That is the sort of detail in which I am interested. We can improve the procedures.
We have increased considerably the time that is available for debating Sewels. My Tory counterpart is on record as saying that I have been sympathetic and forward thinking when it comes to ensuring that there is more time for that. However, I will not hold Jamie McGrigor to account for those comments. My frustration in the Parliamentary Bureau is that there has been inconsistency and that decisions have been made on a week-by-week basis. If someone says that a committee needs more time to debate a Sewel motion, or the committee asks for more time, we are likely to be sympathetic to that request.
I have no interest in preventing committees from debating a Sewel, if they want to do so. Why should I? When we put a Sewel before the Parliament, we are proud of the work that we are doing, so I am happy for the time that is needed to debate it to be made available. However, sometimes it is not possible to correlate the substance of the Sewel with the amount of time that is given over to debating it. Too often, such decisions are dependent on the politics of the time. I would be much more satisfied if there were an objective link between the meat of the Sewel and the amount of time that was accorded to debating it. I want to give some attention to that issue, to ensure that standards are consistent. We should have standards that are applicable to the work that we do, so that members know how much time is likely to be available for debating a Sewel. It should also be okay, in particular circumstances, to increase the amount of time for debate.
I want to focus on the issue of the time that is available for debating Sewel motions. Some of the evidence that we have taken suggests that often, when Sewels are discussed in the Parliament, members talk more about the constitutional aspect of the issue concerned, and whether or not it should be Sewelled, than about the substance of the motion. That view is shared by members from outwith the committee with whom I have spoken. Should we stipulate in standing orders that debates should relate to the subject matter of Sewel motions, rather than to constitutional issues? I have asked other business managers where we will get more time to debate more important Sewels, if we agree that that is necessary. They all put the blame on you and say that you must find the time. No other party was willing to offer you assistance and to give up some of its time.
There is no magic bullet that can provide an answer to your question; it will always be a matter of judgment. Other business managers would accept that I have gone out of my way to address time issues that they have raised. I am also influenced by committees, if they request more time to debate a Sewel motion. That always has a downside: if we make available more time for one thing, we must take it away from another. However, if we are level headed about some of the work that we are discussing and about allowing the Parliament to do its business, we can agree a set of working procedures that strike the right balance between being sensible and getting through the Parliament's workload, and ensuring that there is proper parliamentary scrutiny and accountability. We must encourage people to work towards striking that balance.
We have to nail the idea that somehow there is a hidden agenda behind Sewels. That is what worries me most of all. People confuse the principle with the process. There are issues to do with process and it is proper that business managers, and the Executive business manager in particular, should listen to concerns about process because we all have to be the guardians of process and it is proper that I am held to account for that. However, sometimes people raise issues to do with the process when in fact they are questioning the principle. If we are going to keep debating the principles behind the Sewel convention, we will be locked in a sterile debate for a long time to come. If I were to be brutally honest, I would say that I would not be sympathetic to passing over parliamentary time for members to talk about the same things over and over again. That seems a pointless exercise. I do not dispute that people should have debates about the principle of the Sewel motion, but the committee's inquiry could help us to be very clear about the difference between the principle and the process. Most people would say that in current circumstances, we need some kind of convention that allows us to have a constructive and effective working relationship with Westminster and that we should manage it properly and transparently. We can have other debates about constitutional matters and it is proper that we have those, but perhaps we should not bring up the Sewel mechanism within that.
It has crept up on us that people sometimes think that there is a hidden agenda behind Sewels; that somehow the Executive is trying to pull a fast one over members; and that we have all sorts of controversial policies behind members' backs on which we are too frightened to have debates in Scotland so we try to get legislation in through the back door with a Sewel. That is just not true. Sewels exist for a clearly defined purpose and we use them for that.
The Executive is proud of its track record of introducing legislation in the Parliament, and we have nothing to hide. The hidden agenda theory is illogical—why would a Government want to introduce legislation through a hidden process? Governments want to show off about the legislation that they introduce. There is no hidden agenda and we need to shake off some of the notions about that. As we shake them off and people gain more confidence in the process, they will stop confusing the principles with the process and we will get into working practices that allow the Parliament to be more involved.
I will follow up on one or two points about the transparency of the process. The parliamentary question that was lodged to show what in the Queen's speech might require Sewel motions was welcome. It might be even more transparent if that were done by way of an oral statement. With the best will in the world, PQs are not always spotted by everyone. If we formalised the Sewel convention by including it in standing orders and the Sewel memorandum thereby became a lodged document in Parliament, would that also help with transparency? As the situation stands, it is difficult for non-members of the committee in question to find such documents.
Would it be possible to make clearer in Sewel motions what the Parliament is being asked to give Westminster permission to legislate on? At present, the motions tend to be worded in general terms.
The Sewel memorandums tend to provide good explanations of the technical information, but they are not very clear about the policy intent behind the motion. Could the Executive look at the nature of the memorandum and include a policy as well as a technical commentary at the start?
We are very open minded about all those points. I do not want to commit myself absolutely to them at the moment, but I will be very interested in the conclusions of the committee's inquiry. I will look at each of those points in that context, but I will certainly not rule any of them out at this stage. In fact, we are already actively considering a number of the points as part of our regular review of Sewel motions.
If the memorandum is not clear about policy intent, we should address that immediately. We have looked at some of the issues that have been raised about the text of Sewel motions and we want to be clear about that.
Although some people did not notice it, the inspired parliamentary question worked better. I have been thinking that we should directly inform committee members at an earlier stage. I did not fully address the issue of timing with Cathie Craigie, but I am sure that we will come back to it. Sometimes committees get caught in that truncated period of time at the end of the process and we need to think about how to create opportunities for consideration. One option was to direct people to the IPQ answer through committees. However, if is another, I will not rule it out—we could do both.
Far be it from me to suggest that there is any hidden agenda. There is a feeling in some quarters that Sewel motions are being used much more often than it was originally thought that they would be, including by Lord Sewel. Can you give a reason for that? What are the criteria for granting a Sewel motion? Are there any definite relevant criteria to determine whether a proposed measure is a minor adjustment, or whether it relates to a regime that it is worth having the same north and south of the border?
After our six years of devolution, it is interesting to ask whether it is possible to conclude that we have had more Sewel motions than we anticipated. If we look back six or seven years, I do not know how we could possibly have projected how many Sewel motions we were likely to have. If someone had asked Donald Dewar when he said that the use of Sewel motions should be "sensible and proper" how many we would have, I think that he would have said that it was not possible to give a figure.
Lord Sewel said that there would be one or two a year.
When Lord Sewel was pressed, he could not justify that.
When Lord Sewel was pressed in evidence, he said something to the effect that when he made the statement at Westminster to which Jamie McGrigor refers, he had no idea how many Sewels there would be.
I am strong in my defence of the Executive not using Sewels improperly and I resist the idea that we have got lost in a merry-go-round that has made us lodge more Sewels than we anticipated. I speak strongly on behalf of my colleagues, who do not introduce Sewels unless they think that it is absolutely the right call.
There is no imbalance, which is at the core of what Jamie McGrigor is saying. That was reflected in some of the press comment to which I referred earlier. People seem to have a genuine concern, which is not malevolent or just political knockabout, that the Executive might have introduced too many Sewels and that the balance is wrong. I have searched through the Sewel motions because if there were an imbalance, I would be anxious about it, but I do not think that that is the case. When one looks at some of the statistics about the use of Sewels—I think that one commentator said that there had been 63 Sewel motions compared with 83 Scottish bills, but the details will be in the evidence—one does not compare like with like. Some people say that one minor technical Sewel is comparable with one act of the Scottish Parliament, but it is not. We need to nail that.
We have looked at every Sewel motion and we have taken examples and asked people, "Should we not have Sewelled that? Should we have gone another way?" Invariably, when we considered the consequences of going another way, we ended up with the decision to take the Sewel route because of a variety of different factors. Therefore, I defend our Sewel record and I do not think that we overuse Sewel motions.
Unless there is evidence from before my time in the Executive, there is no sense that Sewels have caught us by surprise. People have not felt, "Oh my God, why are we doing so many all of a sudden?" On average, there have been about nine or 10 a year, and they have been expected. The officials down south think that that number is properly manageable. It is not as if they have diverted us from our legislative programme. We have never found Sewel motions to be a disruptive influence and to us they are the norm.
I cannot remember who it was, but someone said, "It is the nature of devolved relationships that the use of Sewels will be a routine experience." Whatever one calls it, that kind of relationship goes on. Heaven forfend that there should ever be a Tory Government—it does not look likely for a wee while. Forgive me—that was my one foray into the events of this week. If there were a Tory Government, we would still have a Sewel convention, we would have to have some kind of relationship because that is the nature of the experience. The criteria for using Sewel motions would be clear. As the officials will bear out, we are robust in ensuring that, whenever possible, the Scottish Parliament legislative vehicles are of the first order. It is proper that that is where our focus lies, and our inclination would be to legislate in Scotland for all the political reasons that I have mentioned.
I am responsible for the technical criteria. The process and opportunities for a Sewel motion would be clear, but the portfolio minister would have the policy criteria for determining whether a Sewel motion would be appropriate—I think that the majority of Sewel motions have been on justice matters. Clear categories, which are laid out in our memorandum to the committee, are associated with that decision. The most obvious category is when there is a chance country interest or there is a Great Britain-wide statutory regime that has a slightly different implication in Scotland because one bit of Scottish legislation 300 years ago was a wee bit different. It makes sense to Sewel in such instances.
The best way to sum up the situation is to say that we use a commonsense approach. We would never want to use a Sewel motion if the most appropriate vehicle would be Scottish legislation. We would be mad to do that, as it would not be in our political interest. Why would we want to use Westminster legislation when we could use our own and customise it in the way that it needs to be done in Scotland?
You talked about the relationship between the Parliaments. As you say in your memorandum, the Parliament at Westminster is sovereign, so there needs to be some kind of relationship with the devolved Scottish Parliament. One thing that has come up in discussions is that the Sewel convention was viewed as being about the relationship between Parliaments, not Executives. What is the best way of ensuring that the Scottish Parliament stays abreast of developments as the bill that has been Sewelled passes through its Westminster stages? You talked about ways of making the Scottish Parliament more aware of bills that could be Sewelled when they are announced in the Queen's speech, but how should the Parliament stay abreast of those bills as they pass through Westminster?
You cannot deny the authority of the Executive or the Westminster Government to introduce legislation. That is our function and purpose; it is why we go to elections. We want to win more seats than you so that we have that authority. That is proper; there is nothing bad in having executive authority. That process is the reason why we are all here. It is the Executive's job to introduce legislation and that is what we will do. Accountability comes with that job, too, but the legislative programme comes from the Executive.
There is probably more involvement as bills go through Westminster than the committee has acknowledged. Perhaps Colin Miller can take us through the technicalities. As things stand, if Westminster was to change the legislation once a Sewel motion was passed, we would bring back the Sewel motion, as we have done in the past when a bill has changed—I think that we are obliged to do that—and we would keep the subject committee informed. The focus of much of our work is on the subject committee involved in the scrutiny of the Sewel motion because of its accumulated knowledge and specific interest. The committee system is so much a part of our parliamentary system that that seems the appropriate way in which to inform the Parliament, as we do already. However, if members wanted us to be more emphatic or clearer about involving the appropriate subject committee or the Parliament, we would not rule that out.
That is part of what the minister said earlier about reconsidering the terms of Sewel motions and Sewel memoranda. We can consider the involvement of the committees and the Parliament with a view to ensuring that the information that we provide is as good as it can be, but the minister is correct that there are rigorous procedures for ensuring that the Executive is kept aware of any relevant changes that are made at Westminster and brings those changes back to the Scottish Parliament by amending the Sewel motion if necessary, although that has rarely been required in practice.
I think that we have done so only once. However, if anything was to change in such a bill, the Executive, and not only the Parliament, would have a strong interest in that, because we are clear about the terms of the Sewel motion and a lot of effort has been put into establishing proper and appropriate discussions between officials in Scotland and officials in the UK Government to ensure that our interests are protected. Those discussions have borne fruit.
Another issue that has come up in evidence is that there does not seem to be a clear mechanism for informing Westminster of the issues that are raised in committee or parliamentary scrutiny of Sewel motions. Do you have any thoughts on how that could be done more formally?
Formality is a theme that runs through all the evidence. I noticed that a number of your commentators said—I paraphrase—that the system has worked well but that it is based to a certain extent on good will and good working relations. That is why we need to examine some of the procedures and think about how we can bed them in should that good will ever evaporate, not that that is likely—I will not go back to that.
To date, there has been a lot of partnership and discussion between the Executive and the Government at Westminster to ensure that we are kept abreast and informed of any changes at Westminster. That is at Executive level. We work hard to ensure that the UK-level administrative machine—which is important in protecting the details—is tuned into the devolution settlement. Although this did not come out as much in evidence to the committee as I thought that it might, a lot of progress has been made on that point.
I need to be careful about what I say but, with the greatest respect to my colleagues and the mandarins at Westminster, the devolution settlement is new to them. We live and breathe it, but they do not, so we have to ensure that they are alert to the different circumstances in Scotland. That is not top of their agenda when they are dealing with a huge variety of other things, but I am positive about the response that we have had at a UK level. Colleagues and officials at that level have paid attention to Scotland and the fact that the governance of Scotland is now different. We are always on the ball on that one. Officials change and we keep them aware.
I do not know whether I am directly answering the question. Were you asking about Westminster and the Scottish Parliament, as opposed to Governments?
Yes, and in particular how the debates on Sewel motions in the Scottish Parliament and its committees are fed into the Westminster process. I am asking about information from here going there, rather than about the information flow back from Westminster.
The process operates at two levels. That information is passed on formally. Formal notification of whether the motion is passed is a requirement. Copies of the memorandum that is given to the subject committee are also passed on. I think that copies of the committee reports are passed on, too, although I do not know whether that practice is formal or informal.
Colin Miller (Scottish Executive Legal and Parliamentary Services):
It is not a formal requirement.
There is also a lot of discussion between officials about what was said and what the big issues are. That kind of discussion is normal. For example, there was a degree of surprise about the Parliament's reaction to the Sewel motion on the Gambling Bill. Officials were interested in the fact that the Scottish Parliament did not want the powers that it was being offered, as that is not what the Parliament normally says. However, we clarified and explained the matter and ensured that the officials were aware of the slightly different context in Scotland.
That is the level of discussion that takes place. There is formal communication on the passing of the motion, the votes at the subject committee and the memorandum that is given to the subject committee. Does the Westminster Government send memoranda to the committees at times?
No, not as a rule.
Would it be possible for the passing on of committee reports to be made a bit more formal?
I see no reason why not.
The discussion has been useful so far. Obviously, we start from different points of view—I support independence and want the Scottish Parliament to have the powers of a full sovereign Parliament, whereas others have different ideas.
You talked about misunderstanding, minister. Some of that misunderstanding surrounds sovereignty. When told that Westminster retains the right to legislate on devolved issues, although it does not normally exercise that right, many people are quite surprised, because they believe that the Scottish Parliament is sovereign on such issues. Perhaps some of the misunderstanding that you described arises from the belief that the Scottish Parliament has the sole right to legislate on such matters, which is not the case, as Westminster remains sovereign.
With a devolution settlement rather than a sovereign Parliament, it is clear that a convention is needed to deal with a crossover of subjects, which can be messy and intricate. A mechanism is needed to manage that. One reason for some of the misunderstanding is that people are not sure of what they have.
Lord Sewel was right about some of the things that are now called Sewel motions—he almost says, "Not in my name." That must be addressed. He is probably right to say that motions to extend ministerial powers should be removed from the equation, which would do away with one element of confusion. I am not sure how we determine whether a matter is minor and consequential or a more major legislative change, so the two categories must sit together in one form or another, but what the Parliament is being asked to approve must be clear.
We must accept that the minister's party and my party will occasionally disagree about what Westminster and Scotland should legislate on, particularly as the Scottish Parliament can legislate. Political disagreements about the course that should be followed will always arise and we cannot produce a mechanism that will do away with all those arguments. We are talking about tidying what can be tidied.
Cathie Craigie was correct to talk about the time for debate of a Sewel motion. That is critical, because a five-minute debate or whatever it happens to be in the Parliament is not good enough, particularly if an issue is controversial. That relates to the allocation of time by the Parliamentary Bureau. I understand why Opposition parties say, "Not in our time, thanks very much," because Opposition time is limited.
But it is not well used.
As Opposition time is limited, we look to the Executive to make time available. [Interruption.] I am sure that Cathie Craigie agrees.
Your recommendation is popular.
The subject of a Sewel motion should be clear and I agree with the convener that the memorandum should make the policy intent clear.
I ask you to consider two matters. First, should the response to a Sewel motion be a straightforward yes or no? Should the Parliament be able to amend a motion so that it can agree to the motion subject to X, Y and Z, to express its will clearly? That would require the debating time that I talked about, but as such motions would arise only about nine times a year, that could be accommodated.
Secondly, should we have a process of signing off—for want of a better expression—whereby the Scottish Parliament can sign or not sign off the legislation as passed by Westminster? I recognise that, if a bill is changed, we can reconsider the Sewel motion. However, we cannot alter a Sewel motion once legislation has been passed at Westminster. Instead, we are invited to legislate differently.
It might be more useful to act under our procedures, because asking Westminster to change its official procedures might involve a long and tortuous process. Do our procedures allow us to decide whether to enact such legislation or to pause between passing and implementing legislation? Some legislation comes into force some time after it is passed. Could we consider a formal signing-off process whereby the Scottish Parliament determines whether legislation will be fully enacted? That might require changes at Westminster, too. I invite you to consider those two issues.
There were more than two issues, but I will have a bash through them. Those comments were helpful. We have thought about such issues for a considerable time. I appreciate your acknowledgement of political disagreement—it makes the debate much more interesting. The core element—on which we would disagree—is that we are tasked with making devolution work and such arrangements are intrinsic to making devolution work, which is what we will do. The public expect that. We have political disagreements, but when we are given a mandate, we make the system work.
We must have a sense of perspective. Sewel motions are important and we should not dismiss them, because they go to the heart of big constitutional issues with which Scotland has grappled for a considerable time. However, the focus should be on the outcomes of the work. What matters is that the legislation improves Scottish life and services. We must not lose the focus on that. That is why I argue that, broadly speaking, Sewel motions have been effective and have worked well. We have become a wee bit lost in the controversy about the number of Sewels and how they compare and we have forgotten what they have achieved. Some of the related achievements have been significant. I plead with the committee to keep that in mind when it writes its report.
I move on to the detail of Bruce McFee's comments, some of which is very interesting. On allocating time, we will never solve the problem that the Opposition always wants things but we must always give it Opposition time. I am sure that Mark Ballard would testify that I try to be as reasonable as possible without being daft—not to put too fine a point on it. If the categorisation of Sewels is right, that will solve many problems. A bit of me does not want to spend much time on discussion and repeated discussion of Sewel motions. If the system is right, negotiation among ourselves will become more reasonable.
For us, much of the emphasis has been on the committees. Perhaps we need to think about giving the Parliament more time for discussion, but we must have the right balance. There is no point in just repeating in the Parliament what a committee discussed. I say with the greatest respect that—I know that Bruce McFee would not do this—people play games. That is what they are there for, in a sense. If someone loses a debate in committee, they want to rehearse it and go on and on about it in the chamber.
We know that you would not do that, either.
I would not dream of it.
We do not need votes in committee.
Indeed. All the business managers have a shared interest in the matter, because parliamentary time is precious, so we do not want just to hand it over. We must achieve a balance.
We should be clear about the subject of a motion. If our memoranda are not focused and tight enough, we must give that immediate attention. We are attentive about ensuring that committees and members are well informed. We can put quite a bit of work into the memoranda.
I need to give a wee bit of thought to your points about amending Sewel motions and a signing-off process. My plea is that we need an effective and proportionate system. The Procedures Committee is the most appropriate place to say that we cannot afford to blow out of proportion the significance of Sewels. They represent a minor part of the legislative programme. If we disrupted the Parliament's procedures to become focused on Sewels, I would end up back here being given a hard time by committee members because we did not have enough time for our own legislation, policies and proposals, which are far and away our most significant work—they form the majority of our work and require thorough scrutiny. We need proportionate procedures that allow us to focus properly on our priorities.
We should not create a system for Sewels that does not allow us to put them to bed or to conclude them appropriately but drags them on improperly and gets them out of perspective. It is important to have a proper system for dealing with the motions. I am a wee bit nervous about debates on whether we could do this, that or the other. Changes might not seem significant by themselves but, if added together, they could produce a cumbersome process. We must be careful to avoid that and to keep our eye on the ball of our legislative programme, which is where it should be.
You must have very interesting surgeries, Bruce, if people are coming to debate the principles of the Sewel convention with you.
I have a very intellectual electorate.
I am afraid that people have more pressing issues in Clydesdale—perhaps that is what differentiates the experiences of a list member and a constituency member.
Thanks.
We have discussed the issue of the text of motions. Is it always appropriate for the motion to state that the Parliament supports the principles of a bill when we have not had adequate time to debate the full content of the bill, or would it be more appropriate for the motion to allow Westminster to legislate if that is what the Parliament thinks is the most appropriate vehicle? What assistance could your officials give to committee clerks earlier in the process to flag up what is coming and how it will work, so that committees can begin appropriate consideration of Sewels earlier in their timetable, not precluding what might happen in a Westminster legislative programme? If members are aware of the background of a forthcoming Sewel and have worked on the policy detail, we might reduce some of the rush when a Sewel motion is lodged. Is that something that you would consider?
Let me answer your second question first. The answer is yes, in theory. We would need to be careful. What you suggest is a bit like the process that ministers use to determine whether we will get a Sewel, as I described to Jamie McGrigor. Just because legislation is proposed at Westminster for which a Sewel might be a possible route, that does not mean that the minister will go down that route. In fact, unless it was obvious that the Executive would agree to a Sewel, all possibilities would need to be exhausted. The timing would be critical. There is no point in starting a committee down a route that the minister may not wish to go down.
That comes back to the point about the authority of the Executive. If we did not consider a Sewel appropriate but a committee did, we might pull rank on our preferred route. We cannot get carried away and spend all our time with a committee considering such matters. However, assuming that it had been determined that a Sewel was the best route, we would be as co-operative as possible in giving the background.
I was sympathetic when members of the Parliamentary Bureau said that the Parliament needs more time on these matters. This is an area in which I thought discussion was truncated, particularly in committees. Committees have a particular responsibility. It is not only the Executive that informs the Parliament about the complexities of our work; committees have a critical role in the settlement. We need to ensure that committees are as fully informed and as engaged as possible in that process. In other areas, we have a good track record on relationships and on the proper distance between clerks and Executive officials.
Once the memorandum has been laid and the position is, we hope, clear, there is scope for co-operation between committee and Executive officials to clarify where the concerns lie so that those concerns can be properly addressed at as early a stage as possible.
The other point—which I meant to mention to Bruce McFee and I perhaps did not emphasise enough—is about consistency. Practice has, understandably, changed over the six years of the Parliament because of the effort that we have made to get committees and members more involved. We need to establish a norm and a standard of consistency. I take Karen Gillon's point. If committees are considering a Sewel motion that might seem to be merely technical, but is in fact extremely complicated, especially because of the legal aspects, it is proper for them to expect a certain amount of time for their deliberations, particularly if they already have an onerous workload. We could try to establish consistent opportunities for members to get access to information. That is where we need to improve standards.
On Karen Gillon's other point, the text of motions has evolved. As time has gone on, motions have become more prescriptive—rather than just being a sort of sweeping agreement to the bill, they have become more focused, along the lines that she mentioned. We are likely to move to the more focused approach.
In relation to the three categories of Sewel, I think that we should find a new name for the process. I am not convinced that we need to separate the three out. We are trying to overcomplicate the game.
A Gillon convention.
I do not want to be destined for the House of Lords.
I shall remember that.
Please do.
There is a case for saying that any situation that involves a relationship between the Scottish Parliament and Westminster—whether it involves additional powers to ministers, technical changes to legislation or a major policy shift—should go through a clear process in which the Executive informs the Parliament which road it wants to go down and the Parliament either gives its consent or does not. A committee would consider that. By considering two or three different processes, we are in danger of making the procedure unduly complicated and burdensome on the Parliament. If the Executive is clear about why it believes that a Sewel motion is necessary, the Parliament can debate that motion, or a committee can consider it in detail. I am not keen for us to separate the Sewel convention into different processes for each type of relationship with Westminster. That was more of a statement than a comment.
There is consensus that some of the things that we are doing are misnamed. We need to consider that issue and some of the options around it.
The number of Sewel motions coming through as Westminster approached dissolution produced a lot of debate and there was perhaps some unfairness about the process. Has that put any pressure on the convention? Is it something that you need to consider in future?
Should I be honest? Sorry, I do not know whether that is on the record. It would be fair to say—
As always.
That is right—I am always under pressure.
As the Westminster Parliament moved towards dissolution we felt an increased pressure not only to conclude our deliberations but to be certain about what would be coming through the Parliament in time. I felt frustration about that. There was no way out of it—it was nobody's fault, but I would have preferred it if the process had been much more manageable and if we had been much clearer about what was going to happen. There are procedures in Westminster for that.
We are now in the reverse position. We are anticipating a Queen's speech in the near future in which lots of fantastic, invigorating and empowering legislation will be announced that will be great news to the British people. I have the happy task of working out what should happen. We have procedures through which we properly inform the Parliament of the many proposals associated with the legislation, but the issue is the stage at which we do things.
All of that is a matter for public discussion—there are no hidden agendas. At the moment, the question is not whether we agree with the legislation, but what stage the legislation is at and which parliamentary process should kick in. If a proposed piece of legislation is just the germ of an idea and the legislation will not come to the Westminster Parliament for two years, there is no point in my clogging up a committee's time by saying that the committee should take lots of evidence on the matter when it has legislation in front of it that is much more significant to Scottish people in the immediate future. There are those sorts of judgment calls to make.
My instinct has been always to be up front about issues that we have to manage, with business managers, with other committees and, I hope, with this committee as well. There are key things that we need to do as an Executive and as a Parliament to manage the relationship with Westminster and to ensure that we get the best out of it. We need to keep our eye on the ball in relation to the outcomes. After all, the point is not the debate that we have over the various Sewel motions, but the powers that we now have over Network Rail, for example, and other matters. In fact, over the coming period, one of the pieces of legislation might well have something to do with animal rights. Such legislation is good and important; although it might not take centre stage in any Scottish legislative programme, it is not to be sniffed at either. The point is that we must have a sense of perspective and consistency.
Presumably that means that, when we make our recommendations on the Sewel convention, we should point out that it must retain a certain amount of flexibility because not every Sewel motion relates to a huge, controversial issue. On the other hand, we might want UK-wide legislation to be introduced on a major issue and some of that might be very technical. A pertinent question for us is how parliamentary committees can be empowered to have more scrutiny. Perhaps we should emphasise their role as forums in which a reasonable debate on such matters can take place. That would allow us to flag up early whether a certain issue requires more debate in the Parliament or whether the debate can be finalised at the committee stage.
As I said to Karen Gillon, my concern is that people are connecting Sewel motions with questions of controversy and time, when the connection that should be made involves the subject of the Sewel motion, the time that is needed to scrutinise it and the controversy that it might give rise to. My plea to committee members is not to throw the baby out with the bath water; the committee must keep a sense of perspective on the matter, because otherwise we could all live to regret it.
Karen Gillon said that we should have one clear process for all Sewel motions. However, there is a huge difference between a minor or technical, uncontroversial Sewel motion and a Sewel motion that is lodged
"where the UK Parliament is considering legislation for England and Wales which the Executive and the Parliament believe should also be brought into effect in Scotland, but sufficient Parliamentary time is not readily available at Holyrood".
You are talking about a piece of legislation that could be introduced and considered at Holyrood but, according to the Executive, there is not enough time to do so. Just as it would be inappropriate for the Parliamentary Bureau not to give enough time to a major bill, it would be inappropriate for the bureau to give too much time to a minor and technical piece of legislation. Do you agree that we need separate ways of dealing with these two different aspects of the Sewel procedure?
I acknowledge Karen Gillon's remarks on consistency. As I said to Richard Baker, we perhaps need to clarify not the different types of Sewel motions but the process itself. However, I am inclined to try to secure some consensus around how we manage the technical aspects. Everything is still under discussion.
As far as management is concerned, it has been suggested that we could introduce some kind of reception committee—which might be the Subordinate Legislation Committee—that would have a chance to examine any forthcoming Sewel motions and to clarify whether they relate to minor, technical and uncontroversial legislation or to major legislation. Such scrutiny could help to guide the rest of the parliamentary processes. Given that the Parliamentary Bureau deals with time matters and that the committees deal with the subject that is under debate, is there a role for a reception committee to analyse whether a piece of legislation that was subject to a Sewel motion would need either the complex and full scrutiny that one would expect with a major piece of legislation or the lesser scrutiny that would be required for minor and technical legislation?
I am not sure about that suggestion, because it raises all sorts of questions. After all, we still need to discuss whether we should categorise these matters. I am not sure whether we can even make that call at the moment.
As I have said, the Executive is responsible for introducing legislation and needs to protect that interest. I do not think that such a position is undemocratic; we are simply ensuring that we can do our job. Moreover, we need a proportionate regime. We could be in danger of having a regime that would not allow us to get through the work.
As is proper, the Scottish Parliament's focus is mainly internal. However, for all its faults, one of the Scottish Parliament's many achievements is that it has already passed a substantial body of legislation. We have waited 300 years to sort out some of these issues in Scotland. We need to have a sense of perspective and be sensible about what we can do. I should also point out that the Subordinate Legislation Committee already has a lot of work on its hands.
As there are no other questions, I thank the minister and her officials for their helpful evidence. I look forward to drawing together some ideas over the next couple of weeks.
We look forward to reading the committee's conclusions.
We will have a short suspension while we change over the witnesses.
Meeting suspended.
On resuming—