Item 4 concerns the Procedures Committee's inquiry on the Sewel convention. Members should have received a note from the clerks, on the reverse side of which is a précis of the questions that the Procedures Committee is posing. I assume that the Procedures Committee is communicating with all the other committees. Is that right, or is it just communicating with us in the meantime?
It has issued an open call for evidence.
Again, the issue is relevant and the questions posed seem relevant too. I am happy to hear members' views on the issue. I presume that the Procedures Committee would want some kind of response from us, probably in letter form. I do not know whether it is appropriate to try to go through the questions chronologically and allow members to express their views. The first question simply concerns the nature of devolved legislation and how important it is to have a convention of this type. Do members have a view?
Perhaps we could all agree that it is very important that we have the convention, which we should state categorically. I say that for the sake of consensus at the start.
I will try to give a fair wind to your not inconsiderable sails, Mr Butler. I have written down "very important".
So have I , convener.
They have been cribbing.
Does that encapsulate the views of the committee in response to the Procedures Committee?
Let us ignore the other points and leave it there.
Question 2 is slightly more specific. Again, I am happy to hear members' views.
On question 2, it would be sensible for the agreement to be primarily between the two Governments. That way, when the Parliament comes to consider the matter, whether in committee or in plenary session, there is some hope of coincidence to progress it. If we were to include the two Parliaments, I do not know whether that would be possible. The agreement should be between the two Governments, with the Parliament being involved in discussions in committee and plenary sessions.
I understand what Bill Butler is saying about making the running of both Parliaments administratively smooth. My point is more of a question than a statement. As I recall, when the Sewel convention was laid down, it was intended that the agreement would be between the two Parliaments rather than between the two Governments. I may be wrong, but my recollection is that Lord Sewel made a statement to that effect. He envisaged the two Parliaments working together rather than the Government working with the Executive. It may be worth looking back at what was originally intended, rather than jumping in and saying that the agreement is between the two Governments.
The legislative programme at Westminster will be predominantly determined by the Government of the day, which will be in control of the content and timing of that programme. However, although the Executive may be the filter through which the Sewel motion emerges, the Scottish Parliament has the final say. I think that what has been put before us is a correct encapsulation of the position, for reasons that I understand.
I would not overplay it; I am just making the point. There has been comment before about the Parliament being involved rather than just the Executive.
Perhaps we could get the historical reference that Stewart Maxwell is searching for to set the issue in context.
We can find that. That aside, the majority view seems to be that the convention should operate primarily by agreement between the United Kingdom Government and the Scottish Executive.
An approach should be made as soon as is practicable and the Parliament should be expected to reach a decision in the fullness of time—that is, we must have enough time for the request to be considered by the appropriate committee and for the matter then to go before the whole Parliament. That would be the optimal approach on those two issues.
As the issue is primarily between the UK Government and the Scottish Executive, that involvement should begin not at the start of the passage of a bill, but way before that. The concordats state that if the UK Government is intending to introduce such legislation, it will consult the Scottish Executive, and vice versa. We might seek clarification of that from the Procedures Committee.
That is quite an interesting proposal. You are saying that the Scottish Parliament should begin to take a proactive role at the embryonic stage of the Westminster legislation, before a bill is even published.
Absolutely. We are able to scrutinise the concordats between the Executive and Westminster. I would have thought that there would be no harm in a subject committee considering a draft bill that a UK department had published.
That would be a kind of statement-of-intent stage, at which we would have some prior warning and could scrutinise things if we were so minded.
Yes.
That is interesting.
The UK Government often publishes related material long before it publishes a bill, yet we seem not to get involved until the bill itself is published. There is ample opportunity for us to get involved at an earlier stage. The papers are published at Westminster and we all know that they are there.
That is helpful. In the past, the committee has essentially been asked to consider a Westminster bill at stage 2. By then, the bill has been in a recognisable form, although we know that a bill after stage 2 can be dramatically different from the stage 1 version. Would it be appropriate for us, as Jeremy Purvis suggests, to advocate a statement-of-intent stage at which we could consider the general proposal and general principles of a bill? After that, we would want to see the bill again at stage 2, at which point the substance of it would be available.
I have no problem with the principle of our intervening as early as possible. That would be helpful. However, I am mindful of the number of Sewel motions that could arise, which might create quite a heavy agenda for us. I wonder whether we should scrutinise the consultation papers or, as you suggest, ensure that we see the bill at stage 2. I would have thought that the most accurate reflection of whether the Westminster Government was going to legislate would be the Queen's speech. It would be valuable for the committee to have an early-warning mechanism that enabled us to monitor and track the progress towards legislation. Nevertheless, I take your point that the best opportunity for our intervention is perhaps at stage 2.
Okay. That is extremely helpful.
I agree with that. I would like to know whether that has ever occurred. I agree with what you say, convener—not as a lawyer, but simply as a layperson.
As far as I am aware, that has happened only once and that was an error—a mistake was made in housing legislation. The Scottish Parliament has been in existence for six years and the recesses do not seem to have caused much of a problem. I would not accept the suggestion that Westminster should go ahead without consent on the basis that the Scottish Parliament was in recess. However—it might sound strange for me to say this—there may be instances in which it might be appropriate for Westminster to legislate without consent for reasons of timescale, for example in the case of a national emergency. A piece of emergency legislation might go through the bill process at Westminster in a day.
Nevertheless, it is fair to say that what we are discussing is a convention that is observed by the courtesy of the two Parliaments.
That is right and that should be retained. We all know that Westminster retains the right to legislate on anything at any time. That is right. However, we are able to convene the Scottish Parliament at short notice, and it is important that we keep the convention of courtesy between the two Parliaments.
Okay. That is helpful.
I hope that the memorandums are sufficient for the purpose. Certainly, they should contain as much detailed information as possible.
Given what we have just discussed and our unanimous desire for a much earlier awareness of where Sewel motions might arise, I think that that information will be made available at an early stage. You are right to say that the memorandums should contain as much information as possible. They should also be made available to us as soon as possible. That is perhaps all that we can add to that.
We all know that a Sewel motion will be used by the Parliament to allow another institution to legislate on the Parliament's behalf in an area that is within the Parliament's remit. Difficulties are posed if we then change our minds or wish to do the detailed consideration that we have allowed another institution to do. My view rather than my party's view is that we should consider different ways in which the Parliaments can work together. There should be a United Kingdom committee of the Scottish Parliament, so that if both institutions wanted to consider a measure—bearing in mind that the reason for having Sewel motions in the first place was simply that it would be more efficient for Westminster to legislate in certain areas—there would perhaps be an opportunity for us to link in with MPs or UK ministers. It may be thought that that goes beyond what the committee should suggest to the Procedures Committee, but I want to record my personal view in the Official Report.
That is certainly another suggestion.
As a result of our political views, something that is technical to me might be of constitutional importance to Stewart Maxwell. The issue is hard. The view was that it was more efficient and speedier for Westminster to deal with civil registrations, for example, which is quite a major policy issue, and therefore that there should be no objections, but there are other Sewel motions. I think that Margaret Curran used the example of having the same taxi regulations north and south of the border—it would be a nonsense if they were not covered. I do not think that there is a set approach, but I would like there to be flexibility so that the committee or the Parliament can decide on the substance of the issue rather than all issues being treated the same.
I understand what Jeremy Purvis is saying. It is clear that people can have different views, depending on their perspective. Each Sewel motion should probably be considered individually. In general terms, from my understanding of the original purpose of Sewel motions, the comments that were made at the start were accurate. However, we have strayed slightly from that purpose with some more recent Sewel motions.
I can see where Jeremy Purvis is coming from and find his suggestion interesting, but I tend to agree with Stewart Maxwell about it. However, as you might expect, I disagree with Stewart in that I believe that the Parliament does as much as it can to give Sewel motions detailed scrutiny.
Our default position must be that parliamentary committees should be given time to scrutinise Sewel motions. If we have a better early-warning system, I do not think that we will experience some of the difficulties that we have had. That said, I remember that the committee spent quite a bit of time on the Constitutional Reform Bill and our ability to scrutinise it was not hampered. Perhaps that represents an ideal to which we should aspire.
That is helpful. Your example is interesting, because although there was a division in the committee about whether the Constitutional Reform Bill should have been Seweled—which is what happened—I understand that its deliberations played a role in informing and instructing the debate down south. That is perhaps an interesting and unexpected consequence of the devolved parliamentary committee system.
As far as the first question is concerned, I presume that the Parliamentary Bureau is responsible for such a mechanism.
Yes, it is really up to the bureau and business managers to sort the matter out.
I do not see how else that system can operate. Are we content that the Parliamentary Bureau should make the initial decision on whether a request for Sewel consent should be referred to a committee and that the Parliament should always have the final say after debate?
I thought that the next question was unnecessary because I do not think that there is anything to prevent the Parliament from imposing conditions if that is its will.
I was a bit confused and wondered whether my interpretation that Sewel motions could be amended was correct. Surely any motion can be amended—the Parliament can decide whether to amend or not, as it sees fit. Is that correct?
Yes, that is my understanding. At the end of the day, the will of the Parliament will prevail. The Sewel motion will come before the Parliament as drafted by the Executive. Amendments have been made to Sewel motions, have they not?
Yes.
Indeed.
I think that Bill Butler should speak at this juncture.
I can exclusively reveal that that is a fact.
There we have it. I do not think that the question needs to be asked. It is current procedure.
I do not see any other way.
I absolutely agree. We would expect that the respective Governments would speak to each other, particularly if there were amendments that impact on devolved matters. In turn, we would expect the Executive to report to Parliament or a committee if there were any substantial differences.
My recollection is that when we have asked that question of ministers or deputy ministers, they have answered that they would come back to the Parliament at least.
Did they not do that with the Constitutional Reform Bill?
That is correct. Most recently, ministers did so with reference to Westminster's Serious Organised Crime and Police Bill but, in fairness, the Lord Advocate was also extremely helpful to the committee. He was able to confirm which aspects of the Constitutional Reform Bill were going to be amended and what he understood the terms of the amendments to be. If that is the sort of information that the Executive can transmit to committees, I do not see how we can ask for more.
I accept and agree with everything that has been said, but I have a couple of points to make. After the Justice 1 Committee had dealt with the Civil Partnership Bill, a wrecking amendment was tabled in the House of Lords. That amendment was agreed to and then subsequently revoked. However, if the amendment had stood, it would have completely reversed what we had agreed to.
The Executive has to be the conduit; I do not see any alternative to that. I take your point: if a wrecking amendment were passed, the effect could be completely different from what the Parliament had initially agreed. What would the Parliament do in such a situation? Its ability—never mind its competence—to deal with the issue might well have passed by the time things got to that stage.
I am sympathetic to Stewart Maxwell's view. When the Parliament votes on a Sewel motion, it is effectively doing two things. First, it is allowing Westminster to legislate in a devolved area; and, secondly, it is allowing Westminster to legislate in an agreed devolved area on an agreed subject. The Sewel process should be divided into two. First, the Parliament should be asked to agree to Westminster legislating in the area concerned. Much of the pre-legislative scrutiny that the Scottish parliamentary committees carry out with respect to Sewel motions relates to the question whether Westminster should legislate in that area at all and the reasons for or against such a decision.
Your two stages would involve an early intervention stage, where we say that something looks okay, and—
At that stage, we would agree with the Executive to allow Westminster to legislate. That is the Sewel motion. The second stage is to ask the Executive to have another parliamentary motion under which we would agree to the bill that is passed at Westminster. If we do not do that, we rely on the good—
What do you suggest is the practical and constitutional consequence of not agreeing to legislation that has been passed at Westminster?
We would legislate in that area ourselves. The Scottish Parliament would agree to a motion that asks Westminster to withdraw the Scottish elements of the bill. At the moment, we are relying on the good relationship between Scottish Executive ministers and Westminster ministers. The Serious Organised Crime and Police Bill is a case in point. The Parliament asked Cathy Jamieson to ask the Home Secretary to take out measures that the Westminster Government had put in, but the Westminster Government could have said that it did not want to. In this case, a request by a minister, in correspondence that we saw, was involved, things were all very gentlemanly and fine and a good relationship was demonstrated. However, the Parliament did not make a statement on the matter until it debated a hybrid Sewel motion, with an amendment from Bill Butler. It is a bit clumsy to proceed in that way, and I do not think that the matter was very clear.
I will not comment on the clumsiness or clarity—
No—
I am only jesting, Jeremy. The proposal for a UK committee is an interesting extension of Jeremy Purvis's argument, but I am not convinced. I think that the convener was right to talk about the Executive being the conduit, which I think represents the most sensible approach. There are certain attractions in what Jeremy has been saying, but it is not attractive enough to me. I prefer to be conservative—with a small "c"—on this matter and to go for the Executive being the conduit.
I can see both practical and constitutional consequences to what Jeremy Purvis proposes, which could create considerable difficulty, not just for the Government at Westminster but also for this Parliament. For example, the Westminster Government could say that if the Scottish Parliament was not willing to ratify a bill, everything that refers to Scotland could simply be taken out of the bill, which would be passed for England and Wales only. That might leave the Parliament unable, at short notice, to deal with a situation that was in need of being addressed, and I am anxious about that. The suggestion lacks coherence, interesting though it is.
I hate to disagree with you, but I do not think that the suggestion lacks coherence. The Parliament would be aware that, if it decided not to ratify a bill, it would have to legislate on the devolved areas in that bill. It would be up to the Parliament to decide on the principle of allowing Westminster to legislate, as Jeremy Purvis said, and, subsequently, to consider the reality of the bill after it had gone through the process at Westminster. It seems entirely reasonable that, at that subsequent stage, this Parliament would view the bill and, if it had gone in the direction in which the Parliament thought it was going, confirm that there was no problem. However, if something dramatic had changed in the bill, the Parliament might take the view that it was not what we wanted and agree to another motion to say that we were not happy with it and would legislate ourselves. The Parliament is aware of the consequences of its actions and if it wants to reject such a bill, it is up to the Parliament to decide to do so. I see nothing wrong with that.
That is an area in which the committee will not achieve unanimity. Our letter, which I detect will be a slightly lengthy epistle, might have to include paragraphs here and there in which we agree to note dissent, but we have a picture of what the committee feels, which is extremely helpful. Do committee members want the clerks to include any other points in the letter?
The clerk's note was interesting, and, as I have not been on the committee for long, I would be interested in having the clerks produce a matrix of previous experience on Sewel motions that shows when the Executive got in touch with the committee or how the committee was informed. That would add weight to the letter that we are writing and might help the Procedures Committee.
I think that we can answer that. My understanding is that the process is almost certainly triggered by the Westminster legislative timetable. A bill enters the portals of Westminster, which is the first trigger to alert the Scottish Executive that a Sewel motion might be required, and, depending on the timescale of the legislative process at Westminster, the Sewel procedure is either relaxed or extremely urgent.
I take your point, but the reason for laying the information out is to make clear to the Procedures Committee and the public the short timeframe about which we have been complaining. It was no more than a thought.
As the convener says, the timeframe is not always short.
I accept that, but that lack of consistency would show itself.
I have no objection to the production of a matrix, but I do not think that the detail would add significantly to our understanding. However, in the letter, we can perhaps give two examples: one in which we had a fairly relaxed opportunity to consider a bill, take evidence and produce a sensible report; and one in which we agree that we found ourselves under significant pressure. That might illustrate the point.
This might be an appropriate time to adjourn for five minutes before we move on to agenda items 5 and 6, which are fairly substantial.
Meeting suspended.
On resuming—
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