Welcome to the eighth meeting of the Procedures Committee in 2005. There are three items on the agenda today, none of which is in private.
We will be able to refer to the summary of evidence as we proceed through the other papers. It is probably best to use it in that way.
The second paper, PR/S2/05/8/3, is the note on procedural issues, which we will go through page by page. Paragraph 44 at the end of the paper contains the key questions. Does any member want to raise any points on page 1, on the early warning systems?
We should leave out the idea of being able to facilitate the process through an inspired parliamentary question. There must be a way of involving all members.
There is no argument against it in principle. The difficulty is that the existing standing order on oral statements states that they are made at the request of the minister. There is currently no provision in standing orders for a minister to be required to make a statement. Perhaps that should be changed, but that would require an inquiry into the issue.
I thought that one of the issues that we would consider is whether we need to make changes to standing orders.
It would be difficult to make a fairly significant change to that standing order without first having taken evidence on it. That is my only concern. If we wanted, we could recommend in the report that best practice would be for an oral statement to be made, but I do not think that it would be feasible to tag on a change to a standing order that might contradict other standing orders without having a full inquiry.
Why is the option in the paper then?
The paper refers at paragraph 9 to the problems in relation to the contradiction with existing standing orders.
Evidence from members and academics highlighted that there should be a warning to members and the general public that a Sewel might be coming forward. The second option seems to be a more realistic option. A statement to the chamber would take up chamber time. In other parts of the report we might call for an opportunity to debate a particular Sewel in the chamber, but that would be more difficult if we have added time at the early stage of the process. The second option is preferable and would flag up the issue. The Business Bulletin is available to members of the public and to members. The evidence that we have taken points towards the adoption of such an approach.
One other reason not to stipulate an oral statement as the only way of giving an early warning is that not all Sewels will necessarily arise immediately from the Queen's speech. If a lot of Sewels come out of the Queen's speech, it might make sense to make an oral statement. However, if a bill comes up later that has a small Sewel requirement because of a technical issue, it might not make sense to have an oral statement on a relatively minor Sewel for one bill. I do not think that stipulating an oral statement would be a sensible approach. We should not rule out the option of an oral statement, but we should not necessarily say that one must be made in every case.
I am not sure how we deal with the matter then. I accept that there might be pressure on chamber time and that there might be competing interests elsewhere. The approach that is set out in the second bullet point of paragraph 7 would at least ensure that the information went beyond the written answers report and the relevant committee. I would not want to go to the wall on the matter, but we must have an approach that is based on more than just the hope that an inspired parliamentary question will generate an inspired reply that everyone will see.
If there are no further comments on early warning systems, we move on to the lodging and content of Sewel memoranda. If members have no comments on paragraphs 10 to 13, which describe the current arrangements, we move on to paragraphs 14 to 16, on the timing of memoranda.
Are you seeking members' preferences at this stage?
I seek comments from members. You may express a preference when you comment.
There is a suggestion in paragraph 13 that the proposed wording of the Sewel motion be included in the memorandum. However, paragraph 15 suggests that a fixed timescale could be set for the production of the memorandum. It is important that the proposed motion be included in the memorandum, to make clear what permission is being sought—the matter came up in evidence. However, if the Executive had a relatively short time in which to produce the memorandum, would there be enough time to include the proposed motion?
The Executive ought to be able to produce a draft motion at the same time as it produces its memorandum, given that it will be addressing a matter that it has known about for some time. We will recommend that the memorandum should give a clear explanation of the Executive's intentions, which I presume would form the basis of the draft motion. The key point is that the draft motion would be subject to discussion in the committee on whether it should be amended before being lodged in the Parliament.
Paragraph 12 says:
That is the current position. It is for the committee to decide whether the position should be changed by making the Sewel memorandum part of the formal parliamentary process. It is pretty clear that that is what we think should happen.
Yes, I agree.
I agree, but has not that been the practice of late?
Yes, but the Sewel memorandum currently has no formal status. Because the memorandum is not a parliamentary document, it is difficult to follow its progress. A person who wants to find a Sewel memorandum must look on the Executive's website, but the information should be available on the Parliament's website. If the relevant changes are made to the standing orders, future memoranda will be parliamentary documents.
Members who have been closely involved in the process recently say that the approach works, so we should find a way of making it the formal procedure, rather than just the current practice.
Yes. Do members have other comments on paragraphs 10 to 16?
The memorandum should include the proposed motion. That would make it easier for people to understand and members would know what they were debating. The Executive has set the process in train by taking that approach.
Paragraph 15 suggests that the Executive could be required to lay its Sewel memorandum within a fixed time, perhaps within a week of the relevant bill's first reading at Westminster. Therefore, the memorandum would be laid before the bill's second reading at Westminster.
That approach would be desirable, but would it always be practicable?
We could recommend that the timescale was normally adhered to—there are ways of finessing the standing orders that would ensure that the approach that we want is taken, while acknowledging that it might not be practicable in a particular case.
I do not suppose that there would be a huge number of such cases, but if emergency legislation was introduced, for example, what would happen if the memorandum was not available, or had to be rushed to such an extent that it was not of much use?
I do not think that we considered the implications of emergency legislation that would require a Sewel motion.
Emergency legislation is exempted from the Sewel convention, so under the current arrangements between the United Kingdom Government and the Scottish Executive, the Executive would not be required to seek the Parliament's consent to genuine emergency legislation. The committee could exempt emergency legislation from any formal procedure that it recommended.
The clerk has experience at Westminster. Can he envisage circumstances in which it would not be possible for the Executive to produce a memorandum within a week?
Such circumstances could arise, if there was a genuine emergency bill.
But emergency bills are exempt.
Yes, under the current arrangements.
Could there be other circumstances in which a memorandum could not be produced within a week?
Any new procedure could allow the flexibility that currently exists.
Before our next meeting, it might be helpful if we asked the Executive whether a week or a fortnight would be a more realistic timescale.
Westminster procedure is that there is normally a minimum gap of two weeks between a bill's first and second readings. The advantage of having the memorandum within a week of the first reading would be that we could consider it before the second reading. If a timescale of two weeks was set, the memorandum might be published on the day that the second reading took place, which might not be helpful.
What does a week mean, in relation to the Executive? Are we talking about a certain number of working days?
That would be a matter of drafting, but in essence we are talking about a calendar week.
If the committee takes the view that there should be a fixed timescale for the production of the memorandum, we can check the practicalities with the Executive and ask it whether a week would be reasonable.
Members indicated agreement.
We move on to paragraphs 20 to 24, which suggest that the Parliamentary Bureau should formally refer the memorandum to the relevant committee. That is the practice in relation to most other parliamentary business. Are members content with that approach?
Members indicated agreement.
The suggestion that a committee should be established specifically to consider Sewel motions is not workable.
I agree. The approach would cause delays. The involvement of an intervening committee might make it impossible to scrutinise a matter when we were subject to a tight Westminster timescale. Does the committee agree that there should be no separate committee?
Members indicated agreement.
Are members happy with paragraphs 28 to 32, on the time available for committee scrutiny?
Members indicated agreement.
Paragraphs 33 and 34 outline current practice in relation to the lodging of Sewel motions.
If a separate committee were established to consider Sewel motions, we would not know when or how often it would meet. The approach is not sensible.
We are all content that there should not be such a committee.
Good.
Although if there ever were such a committee, we would ensure that you were a member of it.
No, thank you.
Are members content with paragraphs 33 to 34, which suggest that a Sewel motion would be subject to the same rules as any other motion, provided that a draft motion had been included in the memorandum?
Members indicated agreement.
Paragraphs 35 to 38 are on the wording of Sewel motions.
The wording of Sewel motions has changed and it changes regularly. Recent Sewel motions have begun to take a view on the content of the bill in question. I am not always comfortable with that when the Parliament has not had an opportunity to debate the content of the bill. We have moved away from the customary practice of agreeing simply that Westminster may legislate, which is the essential thing that a Sewel motion asks us to do. As a Parliament, we are not asked to debate and discuss the content of the bill that is the subject of the Sewel motion, because we do not have the time—we specifically do not do that. I have some concern about the direction in which the Executive has moved, because the Parliament is asked to give its consent to the principles of a bill that it has not been able to scrutinise effectively.
Given the proposed increase in time for committee scrutiny of Sewel memorandums, which should include a draft Sewel motion, it is logical that a Sewel motion should indicate, without tying down every last detail, the general reason for the legislation and the parameters within which we want Westminster to legislate. It is a matter for Westminster what it legislates on, but our motion should indicate what we are interested in seeing apply to Scotland. Therefore, I think that the Sewel motion should have a certain direction.
In her evidence, the Minister for Parliamentary Business said:
Standing orders could simply say that a Sewel motion should state, as Mark Ballard has suggested, the specific areas in which the Parliament consents, for example, to increased ministerial powers. That would not necessarily exclude the addition of a political element to a Sewel motion, if that was what the Executive or Parliament chose. A Sewel motion could have both a technical aspect and a political aspect; however, standing orders need prescribe only the technical aspects of what should be in a Sewel motion.
The only people to give evidence who took the contrary view were Bill Aitken and Peter Duncan. Both the Minister for Parliamentary Business and Alasdair Morgan seemed to agree that Sewel motions should be more specific. Pauline McNeill also seemed to agree with that when she said:
I have no problem with Sewel motions reflecting specifics, but I have a problem with their containing general, sweeping political statements that we have not debated. I have no problem with a Sewel motion giving our agreement that Westminster may legislate on a specific proposal. That was what happened with the Sewel motion on the Serious Organised Crime and Police Bill, for which the Sewel motion was amended so that some clauses of the bill would not apply to Scotland. I have no problem with those specifics, but I have a problem with Sewel motions containing general, sweeping political statements when we have not had a general, sweeping political debate.
The written evidence from the Executive gave the different categories under which the Executive said that it would consider using a Sewel motion. The third of those was:
However, the timescales do not allow for that kind of debate in the Parliament. Such debates cannot take place in half an hour when members have not been involved in the political decision. If all the discussion has taken place in a committee and there is no stage 1-type debate, members cannot make that kind of wide assumption after a debate of only 30 minutes.
Presumably, the point of such committee scrutiny would be to allow a committee to determine whether it agreed with the Executive's reasons for proposing the Sewel motion.
You are missing the point.
I am not sure that I am.
If we follow Karen Gillon's logic, Sewel motions ought not to be used for the third category under which the Executive said that it would consider using a Sewel motion.
No. Such Sewel motions should not be used unless allowance is made for proper parliamentary debate.
In that case, Sewel motions of that kind would need a separate procedure, which would go above and beyond the kind of scrutiny that we have discussed.
We would not need a separate procedure, but we would need to ensure that there was effective parliamentary debate when such a Sewel motion came before the Parliament.
Provision for such debates could be made, but a longer debate would not be needed for every Sewel motion. One of our other papers concludes a discussion of how much debating time Sewel motions should be given by recommending that such decisions should be left to the Parliamentary Bureau, as at present, especially when the issue is controversial. However, we should not say that, just because a longer parliamentary debate will not be an absolute requirement for Sewel motions, we should not tie down what Sewel motions are intended to do. When we address other issues, we will be able to agree whether a Sewel motion should be the subject of a parliamentary debate. Frankly, it should be for the bureau to determine how long such a debate will last. We must take cognisance of the fact that the main scrutiny of a Sewel motion will take place in a committee.
If an issue obviously needs a long parliamentary debate, it should not be the subject of a Sewel motion. If it requires more time, it should be the subject of a Scottish Parliament bill in the first place.
That is certainly a valid point of view, but it is a matter for the debate rather than for us to determine in advance.
In Karen Gillon's view, what kind of scrutiny would be proper and adequate for the kind of Sewel motions that we are talking about?
At the moment, Sewel motions are not required to have anything like a stage 1 parliamentary debate, which allows the Parliament to give its approval to the general principles of the bill on the basis of a committee report. Essentially, if a Sewel motion is on an issue of major political significance, it should be the subject of a debate that is equivalent in length to that of a stage 1 debate. My colleagues might not agree with me on that, but arguably issues of major political significance should be subject to parliamentary debate for longer than half an hour.
Essentially, Karen Gillon's point is about the length of debate that should be allocated in particular cases.
My point is also about the wording of the Sewel motion. If a Sewel motion is of one line and is about a specific bill, there can be a very specific debate. However, there needs to be a general debate if, instead of a one-line motion, the motion is about general principles and big changes.
Presumably, the nature of the memorandum and the attached draft Sewel motion would determine the length of committee scrutiny. Presumably, a committee could make a recommendation to the Parliamentary Bureau on the amount of debating time that should be required. However, I am not sure that that should be prescribed in standing orders.
I am not saying that we should prescribe anything in standing orders. I am just saying that I have difficulty with the issue.
I wish that I had the papers from previous meetings, but we identified three different types of Sewels that might come before us. Members who gave evidence wanted to be able to identify from the wording of a Sewel the length of time or the level of scrutiny that it would require. As paragraph 38 of the clerk's note says, we need "clear and unambiguous" information before us. We should try to arrive at that position and I hope that, as we go through the paper, we will talk about debating time, which might allow us to take on board Karen Gillon's concerns.
Karen Gillon is right—it comes down to the wording of the motion. If we want to have a debate on the principles of a Sewel motion, the motion that we are debating has to have a section on the principles; otherwise we will have a debate that is not on the motion before us. If we want a principles debate, we have to have a principles motion.
What Karen Gillon is saying is not inconsistent with anything else. I am suggesting that the motion should specifically ask for the consent of the Parliament for what Westminster is legislating on, but that does not rule out a motion that says that we are asking for that for a particular reason, which would essentially cover the principles. To use an example from a forthcoming bill, we might say that we support the legislation to ban people in England and Wales from being nasty to animals, that we consider that that should also apply to Scotland and that we therefore give consent for the United Kingdom Parliament to legislate in that instance. There is no inconsistency there. Does Jamie McGrigor want to add something?
I am not suggesting that there is inconsistency; I am just thinking about the example that you just used.
I was referring to the forthcoming animal welfare bill, which will ensure that people in England and Wales are banned from keeping animals following conviction for cruelty. The ban in Scotland might not be as wide. The Equality Bill probably covered a wider policy issue, but some other Sewels are more technical.
An issue would arise only if we had certain animals in Scotland that they did not have in England.
I do not want to go further down that route—I was just taking the animal welfare bill as an example.
We cannot be too general about all of this.
Do members agree that the motion should at least specify what the Parliament is giving consent to, and that it should be clear about the difference between giving consent to legislate and giving consent for more powers? Do we agree that we should not prescribe how the motion is worded because, in some cases, the motion could include issues of principle?
Members indicated agreement.
Does anyone have any comments on paragraph 39, on the lodging of Sewel motions? Should it be left the way it is?
It should be left the way it is. Regardless of whether a Sewel motion results from legislation promoted by an MP, the Scottish Executive and the Government—or the two Parliaments—still have to work in partnership. We are changing the way in which things are done. We will have notice of Sewel motions. The Government parties have to manage the timetable, and it is right that we should continue with the system that we have.
In the last sentence of paragraph 39, a case is made for allowing Sewel motions to be lodged in the name of the bureau. The example given is
We want a rule that reinforces the status quo, which is that any member can lodge a Sewel motion. I live in the real world, in which the two Governments that are in power may not be the same. The practice is that the Executive lodges the Sewel motion, but there is nothing to preclude another member from lodging a Sewel motion. For example, in the debate on the Sewel motion on the Serious Organised Crime and Police Bill, if we had been more prescriptive, the amendment in the name of Bill Butler could not have been lodged.
I thought that you were saying that it should only be the Executive that lodges Sewel motions. I misunderstood.
The status quo should prevail.
Does everyone agree?
Members indicated agreement.
Paragraph 40 is on the chamber debate. At the end of the day, we have to leave it to the bureau to determine how much time to allow for a debate, but we may make recommendations in the report to ensure that the bureau takes account of committee views on that subject. We cannot probably write rules about it anyway.
Members indicated agreement.
We have to be clear in our report that members who gave evidence on the matter felt that we needed more time for debate in the chamber. In the case of an important issue, we may have wanted to legislate ourselves if time had been made available. However, the evidence suggests—and I agree—that there should be a debate in the chamber on the substance of the Sewel and not on the constitutional issues that we always seem to stray into. People of different political persuasions have all agreed that we need a mechanism. If it is a given that we need a mechanism, let us stop talking about the constitutional aspects of a Sewel every time one arises, and talk instead about the substance of the Sewel. Such debates would be useful for colleagues in Westminster, who would at least get a sense of how the Parliament felt about an issue. If there was some way in which agreement could be reached among the political parties, the process would be much more meaningful for all members.
With respect, that goes back to the question that we are being asked to debate. If the motion has political issues in it, we are much more likely to get a political discussion. If the motion is a fair one, we are left with just the constitutional question: that this Parliament believes that it is appropriate for the Westminster Parliament to legislate in a given area. I agree with Cathie Craigie, but part of the process has to involve motions of sufficient breadth so that we can have the political debates.
I am happy for that to be included in the recommendations.
I hear what Cathie Craigie is saying about debating the issues and not having a political debate—
I am talking about a constitutional debate.
However, especially if the motion is very bland, such issues are almost certain to collide. If greater reasoning for the Sewel motion is provided, the Executive may achieve what it wants to achieve by another means, but we must accept the fact that there will be times when people of a certain political opinion will say, "This matter should not be Sewelled," whereas others will say, "Yes, it should." We would not want the debate to be sterile, with everyone starting off in agreement with one another—that would make for a very sterile debate indeed. By making the motion state why the Sewel procedure is a good idea, the Executive may avoid the sort of debate that Cathie Craigie is talking about.
In no way was I suggesting that we should stifle political debate. If we accept that we need to have arrangements between Westminster and the Scottish Parliament for legislation in areas where there would be common benefit, the question of the constitutional debate—whether or not the Sewel procedure should be used—should be put on the back burner.
That is not the constitutional debate, though, Cathie.
I disagree with you on that.
That is why we need debate.
I know that, in practice, members would have to sign up to the Sewel procedure; however, it would be much more beneficial for members to have their input on the subject of the Sewel motion rather than on the mechanism. That is what I would like to encourage in the Parliament. We should be able to send the views of members of the Scottish Parliament to the committees that will deal with the legislation at Westminster. That would include the views of members of all parties in the Parliament, as the Presiding Officer would ensure that there was a fair allocation of time during debates, based on the make-up of the Parliament.
I understand what Cathie Craigie is saying, but she must accept that, on particular subjects, because of the issues that are raised and which the Sewel motion is designed to deal with, some members will say that the matter should properly be dealt with by the Scottish Parliament. That is just a different political view and, in a democracy, she has to accept that. Matters are debated; somebody wins and somebody loses.
I do not think that what you are saying is contradictory, but we are trying to get away from what was becoming a habit in the Parliament of members objecting to Sewel motions on principle and not on the basis of the subject matter.
That is your view of what was happening.
No, that is what was happening.
That is your view. Others may take a different view.
Well, I am entitled to my view.
As are others.
I think that that is what was happening. You are saying that we should debate the subject matter of Sewel motions but that, on principle, not all members will be able to agree that matters should ever be Sewelled. That is a perfectly legitimate point, which is not contradictory to what Cathie Craigie is saying.
Absolutely.
A couple of procedural issues that came up in the evidence do not appear in the draft report.
Do you want to run through them quickly? They may come up in our second paper.
The first is the point that was raised by the Justice 1 Committee about the lack of any formal procedure to require the Executive to lodge further Sewel motions in the event that a Westminster bill is amended, and the whole question whether committees or other parts of the Parliament should have a chance to look at the Westminster bill once it has been through several—
I think that we cover that in the second paper, which is on the policy issues and what happens after we have Sewelled.
There is a section on signing off a Westminster bill, is there not?
Yes. We will come on to that. Mark, do you want to raise anything else?
No, it is okay. I will leave it there.
We will address that matter when we discuss the second paper. Are there any other issues that you think have not been covered?
No—the second one was related to the issue that I mentioned.
Okay. Let us quickly confirm what we wish to recommend in this paper. Further procedural matters will arise in the second paper, which is on policy issues.
Members indicated agreement.
Obviously, that does not rule out the option of a minister making an oral statement if they wish to do so.
Members indicated agreement.
If we are recommending that there be a normal timescale, I am not sure that we need to check with the Executive.
It is a matter of finding out whether a week is adequate or whether the period should be two weeks, 10 days, or whatever.
But there are only two weeks between both processes.
No, there is longer than that.
Two weeks is the minimum period at Westminster, under the standing orders. Normally, there would be longer between the introduction of a bill at first reading and its second reading.
Members indicated agreement.
Before we leave this section, I want to pick up the point that Mark Ballard raised about the potential for a signing-off process.
That comes under the policy issues that we will discuss in relation to the second paper.
Can you tell us where it is dealt with?
It comes under paragraphs 23 to 27 of the note on policy issues, under the heading "Consent to changes of devolved competence". No, sorry—it comes under "Parliamentary control of the process".
I am sure that I read about it, but it seems to be hidden somewhere.
Sorry—I am wrong. It is dealt with in paragraphs 17 and 18.
Okay. I am happy that it is addressed there.
We have got through the less controversial stuff. Let us see whether we can be just as successful in getting through the policy issues. I suspend the meeting for a moment to allow members to get a cup of coffee.
Meeting suspended.
On resuming—
We turn now to paper PR/S2/05/8/3, on policy issues relating to the Sewel procedure. We should decide whether we want to address in our report any of the issues that it raises and, if so, how we should address them.
When the Parliament started, some members and commentators in the media said that we used Sewel motions far too often. However, the evidence that we gathered did not back up that view. Even Lord Sewel suggested that, when the procedure was introduced, he hadnae a clue—those are not his words; I should use a better phrase. He suggested that he did not envisage that the procedure would be used as often as it was. What has emerged as a result of our inquiry is that the issue is to do with whether the use of a Sewel motion is appropriate and whether the people of Scotland can benefit from legislation that will improve the quality of the law in Scotland.
We have sometimes left ourselves open to criticism because our process has not been as clear or transparent as it could be. If we bring in the changes that we are suggesting in our first paper, which will mean that the process is more transparent because there will be a clear alerting process and a clear scrutiny role for committees and the Parliament, it will be for the Parliament to determine when it is appropriate for a Sewel motion to be used.
Karen Gillon will be amazed, but I agree with much of what she has said—she can have some tablets later.
Do the people of Scotland want that?
We can continue that debate another time.
The process is meant to be used to prevent duplication of work and wasted effort and to save taxpayers' money. That is outlined in what Lord Sewel says in the paper. The only issue that I want to raise is the question of why the procedure has been used much more often than Lord Sewel himself thought that it would be. That question must be addressed.
I agree with what has already been said. Nobody knew how the devolved Parliament in Scotland would interact in practice with the sovereign Parliament in Westminster. Lord Sewel indicated that he did not have a clue about that either. To put it simply, I think that the way in which the interaction has happened to work has meant that we have ended up with more use of the mechanism than Lord Sewel would have expected, but that is only because nobody knew how the process was going to work.
For that reason—and to avoid complication and a lack of transparency and clarity—we will come up with a new name for the process. That will help us to move from where we have been to where we want to be. I do not particularly care what we call it—it might be that we call it a section 10 or section 11 agreement, for example—but I think that the time has come for us to move on to a new process and put the past behind us.
Certainly, abolishing the term would be a new way of reducing the number of Sewel motions.
I am always creative.
There are one or two accountants who say that from their prison cells.
You are right. The important point is that the process is made more transparent, so that the public are clearer about what is happening when a Sewel motion is considered. Our recommendation on the improvements that need to be made to the Sewel memorandum will lead to more transparency. Our recommendation is that the Executive should make it much clearer in particular cases why it is using a Sewel motion.
As I stated on the record that Lord Sewel said that he did not have a clue, and as Mark Ballard continued that theme, it is important to state exactly what Lord Sewel said, because I would not want to be disrespectful. He said:
The writ is in the post.
In answer to a written question that was asked after the November Queen's speech, the Executive suggested that about a dozen bills would need Sewel motions in a six-month period. We all knew that that would be a busy period, but for the coming 18 months only four bills are suggested for Sewel motions, at least two of which are retreads of bills that were in the previous Queen's speech. There is no regular pattern of what might or might not turn up in Sewel motions.
I agree that the issue is not about frequency, but about the appropriateness of bills for Sewel motions. On the issue of whether substantive matters are suitable for Sewel motions, the Executive has guidelines on whether it can use a Sewel motion, and committees can review whether the Executive has made the right decision under its guidelines. In our evidence taking, we established that there are times when it could be appropriate to use a Sewel motion to legislate on substantive cross-border issues. I am not in favour of a separate procedure for that, but I am in favour of the right amount of time being allocated for the Parliament to debate the matter, on the recommendation of the relevant committee. That is the key issue—it is not about creating a whole new process, but about saying that there must be the right amount of time for parliamentary scrutiny. That issue should come out at some point in our report.
The general conclusion is that we do not want to give a list of broad criteria.
I am slightly confused on the issue, because there is nothing to preclude a committee of the Parliament from monitoring a bill on which a Sewel motion has been passed as it goes through the Westminster Parliament, if that committee thinks that that is important. We do not need to set down a rule or process for that. If a committee wants to monitor a bill as it goes through Westminster, there is nothing to prevent it from doing so; indeed, it should do so if it thinks that the issue is important.
That is a fair point. We could basically just say that in our report.
The issue is that it does not appear to have been the practice for committees to carry out monitoring, so we should raise the matter in our report to encourage committees to do so. As I mentioned, the Justice 2 Committee's evidence was that there is no formalised process for the Executive to introduce subsequent Sewel motions, even though the Executive has said that it would do so in cases in which there is a substantial amendment of a Westminster bill that takes it beyond the permission that has been granted through the Sewel motion. We need to consider the interaction between the Executive and the Parliament at the monitoring stage and the monitoring role that the Executive carries out at present with a view to introducing further Sewel motions.
The problem is that, if we put a specific rule on that in standing orders, we might get into the ridiculous situation in which the Executive had to keep lodging amended Sewel motions—or section 10 motions or Gillon motions or whatever—every time the bill went through a committee.
Not Gillon motions.
For example, if an Opposition amendment was carried in the House of Lords but the Government intended to reverse it, would we need a Sewel motion to say yes or no to that amendment, which would probably not see the light of day at the end of the process? We should make it clear that an amended Sewel motion must be possible, but that the process does not have to be used until it is clear that the bill is to be amended in a way that is outwith the scope of the original Sewel motion. For practical reasons, we cannot be too prescriptive.
I agree, but if we are to create a clear and transparent process, we must be clear about when subsequent Sewel motions are to be used. I agree that it would be inappropriate to have a subsequent Sewel motion every time an Opposition amendment was passed, but we need to clarify when it would be appropriate for such motions to kick in. If the committees are to carry out more monitoring, we must consider whether there is a role for them to suggest to the Executive that a subsequent Sewel motion is appropriate. We need a system that is flexible—along the lines that the convener described—but robust and transparent, so that we match the more robust and transparent process that is to be put in place at the start of the Sewel motion process.
Any member can lodge a Sewel motion. If a committee was monitoring a bill's progress at Westminster and felt that it was desirable to lodge a further Sewel motion, surely a member of the committee would be the appropriate person to do that. I am trying to think the issue through logically. If we are saying that the committees should, if they so desire, take a greater monitoring role, it would be a logical extension to say that, if a committee felt that another Sewel motion was required, a member of that committee should lodge the motion.
I do.
Right. The issue is far more substantive and may contain the remedy to the issues that Mark Ballard raised.
I agree with Bruce McFee that we are in danger of making the process unduly complicated and difficult for ourselves. I have no reason to believe that an Executive of any colour or make-up would not lodge another Sewel motion if the terms of a Westminster bill went outwith the terms that had been agreed through the previous Sewel. It would be difficult to know what to prescribe in a rule. If a committee was monitoring the progress of the bill that had been Sewelled, we probably would not want to preclude its convener or another member from lodging another Sewel, although we could do so. However, there is nothing currently to prevent an Opposition party member from lodging a Sewel motion if they think that there has been a substantial change. It is difficult to know how to write all those things into a rule and, in any case, such a rule could prohibit people from doing what we want them to be able to do.
Let us take the example of Westminster deciding to paint all lamp posts red and, halfway through the process, deciding instead to paint them blue. A motion lodged by a member of a committee that had been monitoring what was happening could un-Sewel the process. Is that correct?
The consent of the Parliament could be withdrawn.
I want to test the parameters. If a bill changed so drastically that the process could, in effect, be un-Sewelled, Mark Ballard does not have a point. If, however, that cannot be done, he does have a point.
The Parliament will have given fairly specific consent—we are suggesting that such consent should be much more specific. If the bill is amended so that it is no longer within the scope of that consent, either the consent falls automatically—because we have not given consent for what is being suggested—or an amended Sewel is required to provide consent. I am not sure that consent can be withdrawn. If we have given permission for Westminster to legislate on the colour of lamp posts, we have given permission for Westminster to legislate on the colour of lamp posts.
What if Westminster expanded the bill to cover—
Postboxes?
That would be outwith our consent. We would not have given consent for that.
We would need to be careful about designating what we were giving consent for. The potential for things to be added on is great. If something is added on, there needs to be a process whereby the bill is brought back to the attention of the Parliament, whether through ministers or a committee, so that further consent can be given, particularly if we are dealing with a substantive matter.
That would have to happen under the current process.
It is a question of where we draw the line about what we consider substantive.
The Sewel convention is that Westminster will legislate in devolved areas only with the consent of the Scottish Parliament. We say what we are consenting to. If Westminster then amends a bill outwith what we have consented to, there will be a further Sewel motion. We can make that clearer in the report, but I am not sure how we can make it clearer in the standing orders in a way that prevents Sewels from bouncing back and forth between the Parliament and Westminster at different stages, which we want to avoid.
I cannot remember the words of Lord Sewel that Cathie Craigie quoted—I think that he said that he was uncertain about the implications. If we were more specific, focused and political about the consent that we gave, I would not be surprised if that led to more occasions on which subsequent consent had to be given.
You might be correct, but I am not sure that there is much evidence of Westminster having amended legislation outwith the consent that the Scottish Parliament has given.
Could we have a line in the report that says that the committee's view is that, if Westminster legislates outwith the scope of the specific consent that has been given, another motion would have to be lodged? That is stating the obvious, but perhaps it gives Mark Ballard the comfort that he requires.
Under the current convention, it is certainly true that the Government is committed to legislate or support legislation only within the parameters of the consent that has been given and to lodge a further Sewel motion if the legislation is amended beyond that consent. Consent is given in the form of a resolution, which is why the wording of the Sewel motion is important—it sets the parameters within which consent exists. The Executive's view—if I am representing it fairly—is that it has been unusual for legislation subsequently to be amended beyond the scope of the initial consent.
I return to the procedural points that we discussed in relation to the content of Sewel memorandums. I would be interested to know how what we discussed in relation to that part of the paper relates to individual MSPs and committees lodging Sewel motions and to Bruce McFee's point about motions to un-Sewel or un-Gillon what was previously Sewelled or Gilloned.
The requirement for a memorandum to accompany the motion would apply to anyone who wanted to lodge such a motion. If a committee wanted to introduce a committee bill, it would have to fulfil the requirements in the same way as the Executive or individual members have to when they introduce a bill. I assume that the same applies to Sewel motions.
I was looking at Andrew Mylne because I seek guidance on un-Sewelling. There are rules in the standing orders about debating the same issue more than once, I think. Could a motion that had been passed recently be annulled?
My understanding is that it is always possible for the Parliament to take a fresh decision. The Parliament makes decisions by means of resolution. If the Parliament passes a resolution saying one thing, it is perfectly entitled, legally and procedurally speaking, to come along at a later date and pass a fresh resolution taking a different view. Any resolution that has an effect out there in the world—in this instance, the effect is to give Westminster a degree of consent to legislate—can be reversed or altered at any time by a further resolution. In other words, consent applies only as long as the resolution has not been superseded. A further resolution could be the result of a motion lodged by any member.
In those circumstances, there is likely to have been a change to what was proposed in the Westminster bill.
Yes.
As always, it would be a matter for the bureau to say to the Parliament whether such a motion would be taken for debate. The bureau would have to have the power to prevent a party that had lost a debate on a Sewel motion from lodging a motion to annul every week. The bureau would have to take that decision and the Parliament would have to agree to it through a business motion.
It is unlikely that that would happen. This debate is in the context of substantial changes being made to a bill.
Yes. Okay. I think that members are agreed on the way forward in relation to that part of the paper.
I think that some form of enactment procedure is needed, although that would require Westminster to change what it does. It would be useful if the bills included a clause that said that they would not be enacted in Scotland until they had achieved the approval of the Scottish Parliament. That clearly requires something different to happen at Westminster—whether it would happen is another issue. The date of enactment of a bill is not always the date on which royal assent is given.
For clarification, enactment and royal assent are the same thing. I think that you are referring to the date of commencement.
I beg your pardon. I meant a commencement procedure after enactment. I believe that the commencement date can be set for a considerable time after royal assent has been given, although I do not know how often that happens—perhaps Andrew Mylne knows, having been at Westminster. Nonetheless, it should be possible for it to happen, although it would require co-operation at Westminster. That might be a provision in a Sewel motion.
Realistically, we cannot place restrictions on the Westminster process through a report of the committee and I would not support changing the enactment procedures. Commencement orders are already used in some instances, when that is most appropriate, and the present procedures are perfectly adequate.
Forgive me for breaking the happy consensus that has emerged. If we put in place a process that flags up an early warning, ensures clear committee scrutiny, requires the specific consent of the Parliament and requires further consent of the Parliament if an amendment takes the bill outside the scope of the initial consent, what the hell is the point of a further process?
Say that again.
If the process requires a Sewel motion to set out a specific reason to legislate and the parameters under which to legislate, as well as saying that, if Westminster goes outwith those parameters, another Sewel motion will have to be lodged and Westminster will have to get the consent of the Scottish Parliament on any amendment, the Parliament will have, in effect, given consent to the bill as passed. Therefore, what would be the point of having a different commencement date in Scotland? The Scottish Parliament will have given its consent throughout the process.
If all those requirements had been met, as you say—
The bill would not be passed if they had not been. We would have established a process, under our standing orders, which stated that that had to happen.
That is true as long as the scrutiny of the bill is adequate. However, we could end up with something different if the scrutiny is poor.
That would be a matter for us, though; it would be our responsibility.
Is stage 3 the final amending stage of a Westminster bill?
A bill could be amended at that stage and we would not be able to do anything about it.
We need a lesson on the byzantine ways of the Westminster legislative process.
There is no stage called stage 3 at Westminster, but each house has a sequence of amending stages. Under normal circumstances, a bill cannot be sent for royal assent until it has been agreed by both houses. That may lead to what is called the ping-pong process, whereby amendments that are made by the second house are considered by the first house and, if the first house does not agree to them, the bill goes back to the second house and so forth until there is agreement. The only exception to that is when the Parliament Acts are invoked, which is exceptional.
There could easily be circumstances in which we would have no time to comment on amendments that were made to a bill at Westminster. There was a recent case in which a bill ping-ponged between the houses and amendments were lodged on the back of fag packets every two minutes. We could not possibly keep up with such a process. Amendments of which we have had no notification might be passed—
At midnight.
Yes, or at quarter past 3 in the morning or whatever. I am not saying that that happens all the time, but it is possible.
If that happened, we would introduce legislation in Scotland to repeal the legislation to which we had not given consent.
We could do that, but the issue is how quickly that could be done.
We are talking about a situation in which the consent has been exceeded but it is not possible for the Executive, a committee or a member to lodge a subsequent Sewel motion. That situation is logically incompatible with the process that Karen Gillon described, because she said that there would always be a chance to consider a subsequent Sewel motion if the consent was exceeded as a result of an amendment at Westminster.
There is nothing that we can do to prevent Westminster from accepting an amendment to which we have not consented at the last minute of the last stage of a bill. That would not happen often, but it might happen. However, it would not take away the Scottish Parliament's right to reverse the decision through its own legislation. That is the key point that we must bear in mind. There has been no example of a bill that has been Sewelled being amended at the last stage in a way that was outwith the Scottish Parliament's consent. There have been 60-odd Sewel motions, but I do not think that that has happened, although if anyone has an example of it, please let me know.
I do not think that there has been an example. Are you talking about the final stage of a bill?
If, at the final stage, Westminster passes a bill with a final amendment to which we did not consent, we cannot do anything about that. The reality is that Westminster can legislate without our consent.
It is pretty unusual for amendments to be passed at the final stage, anyway.
The Sewel process is between a Government and an Executive. To make a party-political point, the only party at Westminster that has proposed changes to a bill that would take it outwith the scope of the Scottish Parliament's consent was the Scottish National Party.
That was for good reasons.
That is the only example of that happening. There are no examples of the Government, after a dialogue with the Executive, trying to legislate outwith the scope of the Scottish Parliament's consent. Given that the current Government has a majority of 66—or whatever it is—it is extremely unlikely that, after a consultation in which it has agreed not to legislate outwith the Scottish Parliament's consent, it would allow an amendment that would have that effect at the final stage. However, if the Opposition parties and rebels on the Government side decided to amend a bill in a way that went against the Scottish Parliament's consent, it would be for the Parliament to take steps to revoke the legislation as it applied in Scotland. The process is simple, but we are trying to make it unduly complicated because of something that might or might not happen if there was a Government with no overall majority.
The suggested process would be only a paper trail and would simply take up more of the Parliament's time. Given that we are already asking the people who are responsible for timetabling business in the Parliament to offer more time for debate, it seems pointless to make a further request that would take up more of the Parliament's time and which would be unnecessary, given that safeguards are already in place.
I made my suggestion because I want to avoid a situation in which the Parliament is in effect simply signing something off. Practically speaking, what I suggested would require another Parliament to change its procedures, which is probably not on, even with Karen Gillon's happy-clappy majority. However, it is useful to consider what is within our control.
Once the bill has passed the final stage at Westminster, nothing can happen. The only thing that could happen is that the Queen might decide not to give the bill royal assent, but that is very unlikely.
That is fair enough.
The Parliament could then decide what to do.
Do ministers not have to do that just now?
I am talking about something slightly different.
Ministers could not bring forward another Sewel motion; it would be too late.
However, they could inform the Parliament of the situation and the Parliament could then decide whether it was happy with it or not. If it was not happy, it could instruct the Executive to introduce a bill to amend the act.
That emphasises the point that Richard Baker made about the need for close monitoring and feedback systems between committees and Westminster so that we can avoid such situations.
I do not think that we can legislate for how that is done. In some cases, we are giving relatively minor consent to relatively technical issues—we do not need to worry too much about those. If we are dealing with a major bill, the relevant committee might want to monitor what was happening more closely and it would ask the clerks to put in place the appropriate system.
Most of the issue boils down to the fact that we have to consider what we can do ourselves. Through the Sewel convention, we are already asking someone else to look after our interests, so we should not be surprised when our interests are not their first consideration. There might be a lesson in that.
The current practice is that the Executive and UK Government officials monitor what is happening with the bills. We can recommend that the Executive should alert the relevant committee to any significant changes that are made to a bill outwith the consent given by the Scottish Parliament. The Executive has a responsibility to do that and it is answerable to the Parliament if it fails to do so. That is the kind of practical assistance that is required.
The minister indicated that she would consider that, albeit that there is a different minister in post now at Westminster. However, we should encourage the Executive to consider the matter.
The suggestion in the second bullet point of paragraph 22 that the Presiding Officer formally advise the Speaker and the Lord Chancellor of the Sewel consent might be the way for the convention formally to become part of the parliamentary process at Westminster.
I agree.
Consensus has broken out again. If a committee—the bureau—is responsible for determining the timetable of the Parliament, we have to allow it to do its work, but I hope that it would do so on the basis of the best advice. Committees should make their opinions known to the bureau because, if the bureau knows that further debate is required on a particular issue or that there are controversial issues that require more explanation in the chamber, that will help it in considering the timetable; it will have a better steer about when a longer debate is appropriate. Committees can also point out if their report is unanimous and there is no dissent. Given that the bureau can allow more time at stage 3 to debate issues of particular concern, it should be able to do the same for Sewels.
That comes back to the issue of committees reporting in good time so that the bureau is aware of the extent of controversy or the need for debate. Committees can indicate in their reports matters that require substantive debate in the chamber; such matters can be dealt with if committees report sufficiently in advance of when Sewel motions are timetabled. The process will not work if there is a half-hour debate on a major transport issue when the relevant committee has taken 15 hours of evidence in the two days running up to the debate. I am sure that Bruce McFee is aware of circumstances in which that has happened. There is a timetabling issue for committees as well as for the chamber.
Would it be possible or appropriate to write to the new minister at the Scotland Office to say that we would be grateful if he would consider flagging up Westminster bills that were subject to Sewel motions? In addition, the second bullet point of paragraph 22 refers to
Probably not.
Presumably that is why we argue for the Sewel motion memorandum to be more specific. I think that, if the committee report was handed to Westminster, it would hit the nearest rubbish bin. There is no prospect of anyone reading it.
That would not be environmentally friendly, because it would be an awful waste of paper. Perhaps the Presiding Officer's letter could indicate that a committee report is available and can be obtained from the Parliament's website. I think that it would be appropriate for you, convener, to write to the new minister when our report is concluded, sending him a copy, welcoming the dialogue that we had with the previous minister and suggesting that further dialogue would be a useful way of continuing the process.
I am happy to do that.
You can invite him to lunch.
Are there any other comments on paragraphs 19 to 22? If not, we will move on.
Do we agree? You lot invented the convention; you should know what it means.
We in this Parliament know what the Sewel convention means, but someone logging on to the Scottish Parliament website would have difficulty understanding exactly what it means. We require a convention between both Parliaments and it should have a name that members of the public understand.
What are you suggesting?
I do not know; I do not have a suggestion.
We are considering a new chapter or sub-chapter of the standing orders, which will have a title of some sort, although that would probably be a bit long to use in this context. The easiest thing would be to refer to the procedure by the name of that chapter, rather than by the name of a former minister in a former place.
He is still in the same place.
The reality is that, unless we come up with a snappy title, people will still refer to Sewels, rather than rule 11.4.2(c) motions or whatever. We should try to come up with a snappy title because, unless we find an alternative, the term "Sewel" will stick. I do not think that people will use the procedural term relating to the chapter heading, because the term "Sewel" has entered the political lexicon.
Take it out.
We do not have to refer to the procedure as a Sewel and it does not have to be referred to as such in motions or memorandums. Eventually, it will drift out of the system.
I do not see the point of changing the name. I do not see why the motions should not be called Sewel motions. It is always difficult to change a name; it is also unlucky to do so.
To be fair, according to Lord Sewel, what we are talking about is not the Sewel convention. The process that he suggested did not apply to the transfer of ministerial powers or to major policy areas. He has said that we have moved away from what he intended. It would therefore be appropriate for us to find another title to encompass the new process that the Parliament will come up with and vote on in due course. We can call it whatever we like, but, at the end of the day, we will have changed the process.
You should go back and read Lord Sewel's evidence. He was talking about what had been expanded into, such as the transfer of powers to ministers. He then referred back to his idea, which is what we are talking about now. He was saying that the expansion into other areas was not strictly what he intended by the Sewel convention.
But we have agreed that we will maintain the expansion into those areas.
We might wish to call that process something else. I remember from my days on Renfrew District Council that, when the council had a huge problem with empty houses, it decided to call them operational turnover voids, but the folk on the street still called them empty houses. There is a problem, perceived or otherwise, about the frequency of use of Sewel motions. It seems strange that we are going to deal with the perception simply by changing the name. Unless we can come up with something that is reasonable and slightly shorter than the Gettysburg address to describe what is going on, we should keep the term "Sewel", rather than changing it and using some other euphemism.
I am not suggesting that we change the name; I am suggesting that we drop it.
I assume that we would have to refer to the process as something. Would it be the process that dare not speak its name?
It would be a motion under the relevant standing order. The problem is that the public perception—or, perhaps, the media perception—of Sewel motions does not reflect what they are. We need to get away from that perception because we are trying to create a transparent procedure that states clearly what it does, which is not what people currently think Sewel motions do.
As the Royal Mail—or Consignia—will tell you, it is not possible to get away from perception by changing a name.
I accept that point.
For Bruce McFee to suggest that the folk in the street are talking about what we call the Sewel convention—
I did not.
You were trying to link the two. I do not know about other members' constituents, but not one of mine has come to my surgery to raise concerns about the Sewel convention. The debate has been among politicians and, in the media, among political commentators. We need an understandable name for the procedure, as the Parliament is supposed to be open and democratic and to involve the people of Scotland as much as possible. People who were looking for something on the Parliament's website would not immediately click a button for the Sewel convention, because it is not clear what is meant by that.
The reason why Lord Sewel said that the convention had been passed on to the Parliament is that he does not want his name to be linked with a procedure that he described as real confusion. We simply need to clarify what Sewel motions are used for. If we want something extra to deal with the modification of ministers' powers, we should call it something else, not a Sewel motion.
I do not want us to spend all day talking about terminology. We do not have to make a decision today anyway.
It is one of the issues that arose in the evidence.
You should read the paragraph before the comment of Lord Sewel's in the summary of evidence. It asks:
Yes, exactly. What is your answer to that?
We have agreed that we should not do that.
Let us move on.
What is the recommendation on terminology, convener?
The recommendation is that we will think about it. We do not need to make any commitment.
We have already dealt with that issue.
I see that there is no desire in the committee to pursue that point.