Procedures Committee, 21 Dec 2004

Meeting date: Tuesday, December 21, 2004

Official Report 123KB pdf

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Work Programme

Item 2 on our agenda concerns our forward work programme. We will go through paper PR/S2/04/17/3 page by page to identify questions that need to be asked and issues that need to be clarified. We will then reach some conclusions.

Page 1 provides an update on existing inquiries. We have dealt with private bills. Later in the meeting we will deal with and, I hope, produce a final report on the issue of oral questions. Provisionally, we have committee time, shared with the Standards Committee, for a debate on a subsequent report on oral questions on 24 February.

I refer members to pages 2 and 3 of the paper. At a previous meeting, we agreed that following our review of the procedure for private bills our next major inquiry would relate to Sewel motions. There is a further note from the clerk on that issue. The inquiry could be fairly large. We need to decide whether to examine only the internal proceedings of the Parliament or to widen the scope of the inquiry. I invite comments from members.

Will we get Lord Sewel to come to talk to us?

We can invite him, if we wish.

Why?

Because he was the minister who established the convention. That is a matter for the committee to decide when we consider in more detail the remit and possible witnesses for the inquiry. It is an option that we could consider.

As we discussed at the away day, it would be difficult practically for us to choose the narrower option, which would constrain us. In particular, the third bullet point of paragraph 15, which deals with the broader option, raises an issue that has been discussed when Sewel motions have been lodged. It would not be possible to limit the inquiry to the narrow agenda. We would end up spilling out into the broad agenda, so we should bite the bullet and go for a broader inquiry. Members of the Parliament have expressed concerns about some of the issues listed in paragraph 15.

The narrower option is very mechanistic and relates to how the Parliament deals practically with Sewel motions. As Mark Ballard indicated, that option is constraining. I would hate for it to be specified in standing orders how the Parliament should deal with Sewel motions. The concern about Sewel motions is not the mechanics of how they are handled in the Scottish Parliament; it goes far wider than that and relates to the number of such motions that are lodged and the range of issues that they cover. People are probably less concerned about the narrow mechanics of the system than they are about the fact that the motions are coming to us in the first place. That is why we need to have the broader inquiry suggested in paragraph 15.

I note your points. The other side of the coin is that we can deal only with the standing orders of the Scottish Parliament; we cannot require changes to be made to procedures at Westminster. A broader inquiry would obviously take a lot longer and might be unsatisfactory in that we might end up making recommendations that cannot be implemented. The narrower inquiry would introduce standing orders in an area in which there are no standing orders at present.

I am interested in several points. Whenever I have voted on a Sewel motion, I have voted on the general principles of a bill. How do we go outside the "scope of that consent" if we are voting on general principles? I am confused about what we are saying. Are we saying that we should have the right to veto the legislation if it is amended by the House of Commons, which is similarly democratically elected?

We vote on a Sewel motion on the basis of what is in the memorandum about the scope of the United Kingdom bill and the issues with which it will deal. If the bill is amended and deals with something that was not in the memorandum on the bill, there is no mechanism for the Scottish Parliament to review its consent for Westminster to legislate in that area. I accept that Westminster can legislate without the Scottish Parliament's consent, but the purpose of the Sewel convention is to ensure that that consent is sought. The issue is whether there needs to be a mechanism for dealing with amendments. The amendments might not be Government amendments; they might have come from the House of Lords or Opposition parties and they might change the nature of the legislation in a way that was not envisaged when the Sewel motion and memorandum were drawn up. That is a legitimate point to investigate.

I would be concerned if we had a second Sewel motion debate if an amendment was tabled. I can understand why we might have a debate if an amendment was agreed to. However, amendments are tabled all the time and often do not mean very much.

I hear what you are saying. I do not think that we need to get into a debate about the details at the moment. We are just trying to get a steer on whether the committee wants to go for the narrow remit or the broader remit. If we go for the broader remit, we will produce a paper on the full remit of the inquiry at a future meeting, when we will be able to discuss the details.

On the broader option, I am not convinced that we have the powers to cover some of what is mentioned. We do not have the power to determine whether the Parliament can use the Sewel procedure; the Parliament will have to determine that. We need to clarify what responsibility we have. I do not have a problem with covering that issue, but we have to clarify what is within our remit to do and whether the changes to procedures that we can make are in line with some of what is in the paper. The paper states that we might consider

"why such decisions are made more frequently than was originally envisaged".

Who decided what was to be envisaged?

If we produce a detailed remit for the inquiry, we will have to refer to what we can do as a committee under the standing orders. The detailed paper on the scope of the inquiry would be the place to consider what we can and cannot do, given our remit. We are saying that we want to go for the broader inquiry, subject to its being within the scope of our remit.

We should come back with a remit that condenses the three bullet points in paragraph 15 into one. Karen Gillon is right. The Sewel mechanism is how we operate and we do not have the power to change that. Some members of the Parliament would just oppose using the Sewel mechanism in principle, because they do not agree with it, but the committee has a duty to consider whether the Parliament is operating that mechanism in the best way that it can.

I just wanted to ask a question—because I am not entirely sure—that picks up on the point that Karen Gillon and the convener made. When amendments are made at Westminster after consent has been given by the Scottish Parliament, is there no mechanism at all at present for a further Sewel motion to come back to us? Is it in the hands of the Executive at the moment to determine whether it wants to come back with such a motion? I do not know whether that is right but I believe that the Executive can, if it so wishes, come back on any bill that it has Seweled when amendments have been tabled or passed to get our consent later.

That may or may not be right; it is something that I would want to consider in the inquiry. We may want to require the Executive to report back if there are significant changes to a bill that would affect what was agreed in the memorandum, but that is something that our inquiry would have to consider.

The question that I am asking is whether our processes rule out that option at the moment. I do not think that they do. I think that it is in the Executive's hands whether it brings back such a motion.

I shall ask Andrew Mylne to give us a bit more information about that.

At the moment, the process is largely governed by Government guidance, which is issued by the Cabinet Office to all Government departments; the Executive obviously has its own guidance, which ties into that. It is the responsibility of the UK Government and the Scottish Executive to approach the Parliament with a Sewel motion and they then have to keep an eye on legislation that is subject to that consent as it is going through. The guidance says that, if there are significant amendments, it may be appropriate to come back and seek further consent. However, from the point of view of procedures in the Parliament, the judgment is exercised by the Government and by the Executive and the Parliament itself does not take a decision as to when such motions are appropriate. There is therefore room for uncertainty about the extent of the consent that was originally conferred and the circumstances in which it may be appropriate to seek further consent.

Thanks. That was extremely helpful.

I suppose that the other issue is that, in the Westminster parliamentary timetable, the final amendment might be agreed to at the last minute. The Government may have the intention of overturning an amendment but may change its mind at the last minute, so the consent issue might not have time to kick in and the bill could be passed before we had the chance to have another say.

The broader remit is more sensible than the narrow one, in my view. Have there been practical examples of what you have described? Has a bill that was the subject of a Sewel motion been amended in a way that went beyond what the Scottish Parliament intended?

I do not have chapter and verse, but I am aware of at least a few instances where there has been a second Sewel motion on the same bill because of amendments that have been made. I cannot give you specific examples.

But it has happened.

As part of the background to the inquiry, we would also want to get information about the Sewel motions that have been passed and the relevant legislation attached to them. We shall look at that as part of the inquiry.

Are members happy to bring forward a detailed brief for the inquiry, which will take account of the committee's remit?

Members indicated agreement.

We turn to page 4. We had also agreed that we would want to consider a review of the parliamentary week. It was suggested that that should be the next inquiry that we start, some time next year. Tricia Marwick is looking a little sceptical.

I am a little puzzled. Do you mean that it would be the next inquiry after the Sewel inquiry or the next inquiry?

The Sewel inquiry will be the next one to start, but the inquiries may run in parallel to some extent. We will not necessarily wait until the Sewel inquiry is finished before we start on our parliamentary timetable inquiry. Are members content with that proposal?

My only slight concern is that there might be a knock-on effect from our discussions later today on rearranging the part of the parliamentary week in which question time takes place.

The inquiry would deal with much wider questions about the pattern of meetings in general rather than how business is organised within particular hours. It will range much wider than the marginal adjustments to the parliamentary day that we will consider later today.

Will the inquiry consider issues such as when the parliamentary week starts and finishes?

It will be a full inquiry on how the Parliament organises its business. However, we could come to the conclusion that we do not need to make any changes.

Page 5 lists possible minor inquiries on issues that have been flagged up. Do members have any questions on those? Are there any issues that members think we should not address?

I would like us to address the petitions issue. The Public Petitions Committee has undertaken some work on the matter already. We should assist that committee in bringing about the necessary conclusions to its consultation.

The inadmissibility of petitions is dealt with in paragraphs 37 to 39. We could deal with that issue as an early additional inquiry.

We may also receive a request from the Finance Committee for an amendment to its remit, but that should be a relatively minor matter.

Are members happy that all the matters listed in the paper should be slotted in as and when we have time to consider them?

Members indicated agreement.

Page 7 mentions parliamentary debating time for the committee. As I said earlier, we have provisionally been allocated a slot for the debate on oral questions. If that debate is relatively short, we may be able to fit in a debate on our commissioner for public appointments inquiry at the same time; alternatively, we may need to request more time. We will also need debating time at some future date for our private bills proposals.

Paragraphs 44 and following deal with external research. The question is whether we want to commission any external research for our inquiry on Sewel motions and for our inquiry on the parliamentary week. As is mentioned in paragraph 46, we might want to consider consulting more widely on our parliamentary week inquiry and commission external research.

We could consult widely on the parliamentary week inquiry, but I do not think that we need to bring in people from outside to give evidence.

That is not what I meant. The suggestion is simply that we might want to commission specific research.

Finally, I draw members' attention to the revised dates for the schedule of meetings that are given on the extra paper that has been circulated. I apologise that the first set was slightly erroneous. That was my fault.

Did you not count the recesses?

I did, but some dates were wrong.

Are members content with the recommendations in the report?

Members indicated agreement.