Procedures Committee, 11 Jun 2002

Meeting date: Tuesday, June 11, 2002

Official Report 166KB pdf

---

Sewel Motions

We proceed to item 3, which is a Donald Gorrie issue in that it has been raised by the Lib Dems. I understand, Donald, that you will make some comments about the matter and that Andrew Mylne has produced a substantial paper with a lot of interesting ruminations. He seeks our guidance about the direction in which we want further work to be steered.

I think that there is widespread concern about Sewel motions. The SNP in particular has commented forcibly in the chamber on the subject. The Liberal Democrats were particularly concerned about what we saw as illiberal elements in the UK Anti-terrorism Crime and Security Bill.

A general view—certainly my personal view—is that Sewel motions have their place. They are fine when they avoid the use of Parliament's valuable time on issues that can be dealt with better in that way. To use a cliché, I think that there must be a feeling of ownership of Sewel motions. Some Sewel motions are trivial, but those that are not should be scrutinised by a committee, not just nodded through. The committee should report to the Parliament and there should be a proper debate. Members tend to accept and nod through Scottish statutory instruments and some Sewel motions. I am as guilty as other members of not really studying such things. There should be proper study of important Sewel motions in committees, which should lead to a serious parliamentary debate, not just 15 minutes at the end of the day. That would allow the Parliament to put a definite imprimatur on the bill.

We should be kept informed of subsequent changes to bills at Westminster. If there is a significant change in the content of a bill, there should be another debate and vote in the Scottish Parliament. Some of those suggestions are well made in the report, but that is the thrust of my suggestions.

Andrew Mylne's report covers many of those issues. I give him the floor.

I hope that the paper largely speaks for itself. Although to some extent the paper was prompted by the letter that Nora Radcliffe sent to the committee, it also reflects the wider views of officials. We tried to cover the matter more generally and to raise a number of issues, but not to present conclusions or recommendations. It is for members to tell us their concerns. The interest of officials is in practical and procedural aspects. We must ensure that members are clear about the implications of Sewel motions and the mechanisms that are available in certain contexts. However, we are conscious that there is a highly political element and we wish to leave that entirely to members. That is all I have to say as an overview. My main purpose is to listen to what members have to say.

The issue of draft bills is raised in a footnote in the paper. One difficulty that has been raised about the point at which we might be asked about a Sewel motion is that of knowing what the bill is likely to contain. I deduce from that—because I do not know—that Westminster is not in the habit of producing draft bills to allow people to think about its principles, or if it is, it does not do so invariably. That produced in my mind the question whether a draft bill is always produced in the Scottish Parliament. Will you run over a little of the background?

It would not be fair to expect either Parliament to produce draft bills. When draft bills are produced, they are produced by the Executive or the UK Government. I would need to look into the matter to give an accurate picture, but I guess that draft bills are about as common in Westminster as they are here, which is reasonably common, but by no means invariable. Quite a few major Government and Executive bills emerge in draft form, usually as an annexe to a white paper, but quite a few others are first seen when they are formally introduced and published as a bill. There is no general picture, but a good proportion of bills—perhaps close to half—are available in draft form.

It seems reasonable that, if a draft bill exists, we could be asked about it in principle. However, if there is no draft bill, it does not seem awfully reasonable to ask whether we are prepared to take a Sewel motion and then not give us a reasonable amount of time to consider whether we really want to proceed procedurally or on a policy basis along these lines. There might be scope for a mechanism that allows us to approach the matter in different ways, depending on whether draft bills are produced.

I want to clarify what happens. I understand that a regular pattern has emerged: we receive the Sewel motion after the bill has been published, and the Parliament—never mind the Executive—first sees it only a few days before it is asked to debate it. However, the Scottish Executive helpfully provides a memorandum about why a Sewel motion should be lodged. Is that the normal procedure?

I think that that is right. However, I do not have much information to hand about the time scales involved, in particular the notice that is given of Sewel motions and the amount of time that is allowed for their consideration. We could look into that matter.

The further work that should be carried out on this subject should include finding out precisely how this situation has come about and how much notice the Executive receives, and having a considered discussion of the realistic time span that the Parliament needs to debate weighty issues. I appreciate that some of the Sewel motions are pretty technical or are not all that sensitive, but the Sewel motion on the UK Anti-terrorism, Crime and Security Bill was important. I also recall a big debate in this respect on the Fur Farming (Prohibition) (Scotland) Bill. We should not be asked to make decisions on such matters in only a few days.

It would be interesting to find out whether we could get Westminster to work back and involve us earlier, or whether we just have to insist on taking our time if we cannot have any earlier involvement. That might relate to the House of Commons modernisation programme, in which the Leader of the House is currently trying to move away from the annual basis of legislation. At the moment, it might be difficult for Westminster to accept our decision to take six weeks to consider the devolved aspects of the bill when the deadline might be October or November. However, if the UK Parliament begins to move away from such rigidity, it would have a degree of flexibility that we should be trying to play towards.

Rather than give Andrew Mylne more work—

Andrew does not mind work—he thrives on it.

Although I appreciated the paper, I did not find that it matched my understanding of the Sewel motion procedure. I could be wrong, but I believe that the Scottish Executive requests Sewel motions more than the UK Government requests the Executive to lodge them. As for where the power to take the decision lies—obviously bills have to be amended at Westminster—I had the impression that the Scottish Executive asks Westminster to amend bills to take account of certain issues. However, that is not the impression that I get from the paper.

Before we go any further with the matter, I would welcome information from the Executive, because it would give us a different slant. For example, I wrote to the Executive not long ago to request a Sewel motion in relation to a Westminster private member's bill that deals in part with Jewish divorce procedures. It would have been extremely easy to request a Sewel motion for that bill. I believe that a Sewel motion would have been accepted in the Scottish Parliament. Similar provisions will almost certainly be included in the family law bill, which has yet to be introduced. A Sewel motion struck me as being a good idea at the time, but one was not lodged for various reasons.

I would not mind receiving clarification on how the Sewel motion process can be initiated and carried through. I wrote to the Executive—I did not write to Westminster—about it and it is my view that the Executive should take decisions about such issues.

You may be right. I based the paper on the position that is recorded in documents that are in the public domain and that set out the generality of how the process is intended to work. The process is described as one in which the UK Government approaches the Executive, but it may be that, in practice, some Sewel motions are initiated by the Executive approaching the UK Government—that is, an approach in the other direction. Only the Executive would be able to inform you about that—I am not privy to that information. Perhaps the right way to go about clarifying the issue would be to ask the Executive.

We certainly authorise you to ask the Executive about that on our behalf.

I am happy to do that.

Am I right to say that a lot more miscellaneous legislation—that is, miscellaneous provisions that are attached to various bills—goes through Westminster and that therefore scope exists for the Scottish Executive to initiate small measures to tidy up or reform legislation? I cannot understand why the Scottish Executive would not simply legislate in the Scottish Parliament if the matters involved were devolved.

You would have to ask the Executive about that. You are right about the nature of UK legislation—there are probably more wide-ranging bills at Westminster into which new matters could be added. Other than that, I cannot help you.

I suggest that we do more work on the issue, but perhaps we should separate our work into different elements. The paper addresses some of the procedural elements, but we may need to consider the fundamental principles of, and the big questions behind, Sewel motions. For example, what would happen if the Scottish Parliament said no to a Sewel motion?

There is also a political element—the Executive's role in Sewel motions and the extent to which it wants to use those motions in order to piggyback on the UK Government and to get more work done. Perhaps we have a Government that does not want to govern by using its own legislature and that prefers to use the Sewel motion system to generate more legislation for Scotland without the need to have that legislation dealt with in the Scottish Parliament.

On the process and operation of Sewel motions, it might be helpful if Andrew Mylne were to consider some case studies. The Adoption and Children Bill is an interesting example. We have dealt with three Sewel motions on that bill. I will leave to one side some people's fundamental principle of opposition to the use of Sewel motions and will take the cross-party view. I would like to know why we have had to deal with three Sewel motions on a bill for which there is general support.

The Proceeds of Crime Bill would also make an interesting case study, because Westminster has made substantial changes to it. The bill had major implications and it would be interesting to examine what happens after the Scottish Parliament agrees to a Sewel motion on a Westminster bill to which considerable changes are made. For example, at what point would a Sewel motion on such a bill come back to the Scottish Parliament?

The Anti-terrorism, Crime and Security Bill is important for the reasons that Nora Radcliffe contacted the committee to raise. The speed with which that Sewel motion was handled is an issue. It seemed that speed was an excuse for pushing through a lot of politically unpleasant measures that might not ordinarily have been agreed to. However, the same question arises. At what point does the Scottish Parliament have the opportunity to redress such situations? Case studies might help our exploration of the issue. I agree with Ken Macintosh that we need to hear from the Executive about its approach to the use of Sewel motions.

There are also problems about how we track Sewel motions, which could be covered under the operational element of our work. It seems crazy that the only way in which the Scottish Parliament can keep track of Westminster legislation on devolved matters is via a UK website. There must be a means by which the Scottish Parliament can monitor that legislation. We should find out from the Presiding Officer about his contacts as they take place, or whether he simply responds to the Scottish Executive when it lodges a Sewel motion. It might be interesting to learn at what point the Parliament, through the Presiding Officer, gets involved.

Andrew Mylne's paper is pretty clear that the expectation is that the Presiding Officer is not told. In paragraph 11, there is a suggestion that the Presiding Officer might be advised on behalf of the Parliament. The paper mentions putting Executive memorandums on the website and seeking a mechanism to advise members when a further motion or memorandum might be appropriate. Perhaps we should write or ask Andrew Mylne to get the Executive to comment on some of those suggestions, which strike me as sensible. The Executive could have different views on certain aspects of the matter. If we are to look at the issue in the round, we must take all such views into account.

The committee has made a couple of further suggestions about research. Donald Gorrie has another suggestion.

I agree that we should ask for a document from the Executive. Andrew Mylne's paper is helpful. We could ask the Executive to clarify whether its understanding is the same as Ken Macintosh's. I understand that part of the problem with time scales is that Westminster, for worthy reasons, thinks that it should not formally publish a bill on an unreserved matter without our saying that it can do so. However, if we wanted further time to examine a subject, the memorandum that covers the bill at Westminster could say that clauses X, Y and Z refer to Scotland and are subject to the approval of, or amendment by, the Scottish Parliament. When there are objections to short time scales, I often hear about our having to meet Westminster deadlines, but we can tell Westminster that it can scrap its deadlines as long as we get a proper shout in due course.

A trade union witness, I think, made a useful point in our consultative steering group inquiry. The committee or the Parliament may have a role to play in giving a view on bills. In assessing proposed legislation, the Westminster Government would probably find it more helpful to be informed by proper discussion and debate than to be given a couple of lines in a Sewel motion that say that we give it permission to legislate. Information from Westminster on how it sees that idea might be helpful, as we have only a one-sided view on how the Scottish Executive might view it. We can also ask the Parliament, but it might be helpful if we ask the appropriate department in London about the proposal.

Do you mean that the Secretary of State for Scotland has something to do with it?

No, I do not mean the secretary of state.

Do you mean asking the UK Government or the Parliament at Westminster?

We could ask the Leader of the House of Commons.

That is what I was thinking. He could give his view on the principles of operation and how things should be run.

Essentially, the matter concerns the management of Executive business, given that most bills are Executive bills. Robin Cook should therefore be contacted.

Gil Paterson has wanted to say something for the past 10 minutes.

I support almost everything that Donald Gorrie said. However, there is a problem in that the Government in Scotland gets a lot across its desk and we do not know what is being considered. It is on the Executive's recommendation that the Parliament gives responsibility away in the first place. There must be a mechanism to give ownership back to the Scottish Parliament, particularly when amendments kick in that may go against the whole grain of how the Scottish Parliament—or elements in it—is thinking.

It is not only the Executive that is involved; elements in the Parliament must be able to question why decisions are taken at a particular time by a political party or by a combination of political parties and the Government in London. A scrutiny element is involved but, frankly, there is unlikely to be much scrutiny when that scrutiny role is given away to the same party and that party has a large majority at Westminster.

The most important issue is tracking. Currently, tracking what is happening falls on the shoulders of MSPs, if they have an interest. As the Government in Scotland is giving legislation away, it should do the tracking and alert us to what is happening. We should not have to be vigilant and look at our computers all the time—that is not on. I whole-heartedly support what Donald Gorrie proposes, which would go an enormous way to calm our anxiety.

A number of points have been raised. I am not sure that I agree with them all.

There is a surprise.

Exactly. There are different agendas. The point is that we are the Procedures Committee and we are examining the procedures of the Parliament. I sympathise with the points that Donald Gorrie has made. I am concerned about the timing of Sewel motions, the amount of time that we get to debate them and the tenuous grasp that many of us have on the procedures for dealing with them. However, I am wary of following a different agenda. We need a greater understanding of what is going on. For that reason, we need more information. I agree with Fiona Hyslop that briefings from the Executive and Westminster would be helpful and would give us a better understanding. The committee's role is not to undermine the whole of the Sewel procedures, but we should achieve a better understanding of how they operate in the Parliament.

That is right. As you say, different people have different political agendas—except me. Some people will not agree with Sewel motions in principle, but the motions are a fact of life. It is incumbent on us to examine where they come from, how they operate, whether they satisfy the participants, whether they are used fairly, whether they are used competently, whether proper notice is given and whether the legislation procedurally reaches the same standard as the legislation that we pass, in terms of publication, consultation, time spent considering the issues and proper notification.

An issue arises if we find that there are unfortunate aspects of any part of the procedure from our point of view or, for that matter, from Westminster's point of view, although it is much more likely that we would find something unsatisfactory, given that the subjects of Sewel motions are referred to Westminster to deal with. The question would then arise what we can and should do. Whether Sewel motions continue to be used will be a question of the political relationship between this Parliament and the one down the road or between the Government here and the Government there.

Regardless of whether there should be Sewel motions, we need to examine the matter and ensure that they are dealt with properly and professionally. The questions that have been raised, including in Andrew Mylne's report, and the suggestions about where we might go for further views and analysis cover a great deal of territory. I hope that, in summing up, Andrew Mylne will say that he has enough information on which to proceed.

I do. There are issues that we can follow up and about which we can find further information. Either the clerks to the committee or I can take the matter forward.

We note the report in those terms. I thank Andrew Mylne for his attendance and his contribution, as ever.

Convener, I apologise, but I have to leave to go to the Equal Opportunities Committee meeting.