Procedures Committee, 24 Sep 2002

Meeting date: Tuesday, September 24, 2002

Official Report 123KB pdf

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Standing Orders (Committee Remits)

Item 3 relates to the proposed changes to the standing orders to cover the remit of the European Committee. We have received apologies from the convener of that committee, Irene Oldfather MSP, who is unable to be with us. Stephen Imrie, the clerk to the European Committee, will introduce the subject, after which we will discuss the proposed changes to the standing orders.

It is a pleasure to appear before the committee. This is my first time at the other end of the table and I hope that I will do myself justice. I reaffirm Irene Oldfather's apologies for not being able to attend this morning's meeting. Although the papers in front of members are fairly self-explanatory, I will spend a few moments going back through the history of the item, as it has been on the go for a substantial time.

The issue was raised initially by the then convener of the European Committee, Hugh Henry, when the Executive had a minister whose portfolio explicitly included external affairs. Members' dossiers contain a copy of the letter that the convener wrote to the Presiding Officer, which suggested following the principle that, if an Executive minister is responsible for external affairs, there should be some scrutiny of the portfolio. The letter was copied to the then First Minister and the then Minister for Parliament. Members also have the Minister for Parliament's response, which said that the Executive was content with the principle, but noted that it was properly the responsibility of the Scottish Parliament to consider changes to standing orders.

The convener approached the Procedures Committee with an issues paper, which the committee discussed in May 2001 and agreed in principle. The European Committee was then invited to consider some suggestions about how standing orders could be revised to give effect to the change. That has taken a reasonable period of time, not least because the European Committee has been engaged in a whole range of other tasks and activities. However, on 18 June 2002, the European Committee signed off its proposals for the changes to standing orders, although it noted that it was up to the Procedures Committee and Parliament to decide on any such changes. Although, as I have said, the changes and the accompanying notes are fairly self-explanatory, I am happy to comment on them.

Before we begin, I should point out that Irene Oldfather's letter raised other issues that are not up for discussion today. We are looking solely at the proposed changes to standing orders. As a result, we should focus on annexe A in the heart of the papers, which analyses the proposed changes and places them in three categories. Amendments 1 and 2(a) propose changing the European Committee's title to European and external relations committee, the justification for which is given in the explanatory notes. Amendment 2(b) effectively extends the committee's remit over the Executive's wider external relations policy, including the Deputy First Minister's remit. Finally, amendment 3 loosens up the remits of mandatory committees and allows for changes to their remits as it becomes clear that certain issues are relevant to their core functions. This is an opportunity for members to raise points of clarification.

I wonder whether Stephen Imrie could give examples of when it would be necessary to use the standing order that is outlined in the third amendment. The paper says that the amendment

"makes it clear that the remit … can be changed at any time".

I am not so sure about that. Can a mandatory committee change its own remit? Moreover, what would be the procedure for changing its remit? As I have said, I would find it helpful to have an example of when such a power would be necessary.

I believe that precedent has already been set by the Subordinate Legislation Committee, which is a mandatory committee. It has been able to consider, tinker with and extend its remit to a small degree. As far as I am concerned, the intention behind the third amendment is not for a mandatory committee to be able to change its own remit; rather, it is simply to say that at the start of each Parliamentary session, the Parliament creates its mandatory committees and their remits are set out. However, the proposed amendment would allow those remits to be extended or altered during the course of a session.

The procedure would be the same as for any change to standing orders. The committee would make a recommendation to the Parliament and the Parliament would agree on any changes to standing orders. Changes to committee remits would follow the same procedure. A committee is not the sole arbiter of any changes to its mandatory remit.

What, in that case, is the purpose of building in a new rule that merely allows the committee and the Parliament to do what they have already done without any apparent difficulty? As you just said, we changed the Subordinate Legislation Committee's remit. I also recall an early change to the Finance Committee's remit. Why should we have a new rule?

I am not a legal expert but, as the paper sets out, the change is intended to clarify the possibility of changing a mandatory committee's remit, and to avoid doubt. Precedent has been set, but some officials in the Parliament think that the suggested change would make clearer the role of mandatory committees and allow changes to such committees' remits over the course of time.

There are two distinct issues. The definition of the European Committee is straightforward and it makes sense. The second issue is nothing to do with the European Committee, but is more generally to do with the Parliament. Currently, if we have to change a committee's remit, it is the Parliamentary Bureau's responsibility. The Bureau would make recommendations to Parliament, as has been done previously.

For example, there was concern about whether the Local Government Committee's current remit would allow it to scrutinise the Public Appointments and Public Bodies etc (Scotland) Bill. The Bureau therefore recommended to the Parliament that the Local Government Committee's remit be extended so that it could scrutinise certain issues.

We need a mechanism that allows a bit more flexibility, but it would not be for the Procedures Committee to recommend changes of remits to the Parliament; that would be a function of the Bureau.

That is not strictly accurate. If a change to a committee's remit requires a change to standing orders, that change must be recommended by the Procedures Committee.

There have already been changes to committee remits—I have given an example—that the Bureau has recommended to the Parliament. Those changes have been approved. Do we need to have a change to standing orders to change committee remits?

The Local Government Committee is a subject committee of the Parliament and is not established according to a remit set by standing orders. However, the European Committee, for example, is a mandatory committee and is listed specifically in standing orders. A change to that committee's remit would therefore require a change to standing orders. You are right that a change to the remit of the Local Government Committee does not require a change to standing orders.

That is correct; that is the distinction to be made. The European Committee's remit is spelt out in standing orders whereas the Local Government Committee's remit is not because it is a subject committee.

So in making those recommendations in relation to mandatory committees, you have not raised an issue for the Bureau. There is no question of the Parliamentary Bureau's existing authority being affected by the recommended changes.

I believe not. There has been some correspondence with previous members of the Bureau and Bureau officials to ensure that they are comfortable with the proposed changes as set out in annexe A.

Okay. Are there any other points?

I am sorry that I am still not clear about this. I am still unconvinced that the change is necessary given that we have made changes to committee remits already without the proposed rule. I certainly do not want to stop the European Committee changing its remit. However, I am not convinced by the third proposed amendment.

Stephen Imrie has suggested that standing orders should clarify what is meant by a mandatory committee, but I do not see anything in the proposed amendment that makes that clearer. What part of the rule change would clarify what is meant by a mandatory committee?

I believe that the proposed amendment should be read in conjunction with the rest of the standing order; specifically rule 6.12. The amendment seeks to clarify the definition of the word "mandatory" and the issue of whether or not a remit can be extended during a Parliamentary session. It is not about the specific issue of the powers or responsibilities of a mandatory committee.

I accept that a precedent has been set, as Mr Macintosh says. We are trying to tease out whether it is permissible or possible to change the remits of mandatory committees, which are spelt out in standing orders, during a parliamentary session.

I accept fully that the European Committee has considered the matter and I do not wish to place any unnecessary hurdles in the way of a necessary and desirable change to that committee's remit. Have our clerks examined paragraph 3(b) of annexe A to the European Committee's letter, which is the second part of its proposal concerning rule 6.12? Do we have an opinion on whether such a change is necessary for other committees?

The change has been cleared by the directorate of clerking and reporting, so the paper stands as the views of clerks as a whole.

Does it stand as the view of the directorate?

Yes.

I asked myself this morning whether we were content that all the bases had been covered, and whether the issues that have been raised by the European Committee did not simply represent an individual bid by an individual committee. I am assured that the matter has been cleared and discussed across the board.

Like other members, I am happy with the proposal as far as the European Committee is concerned, and I am keen for the changes to go ahead. However, I share reservations about the proposed change to standing orders. I am instinctively uncomfortable about something that builds into the standing orders what seems to be a provision that could either be viewed as flexible or that could encourage us to be lax about how we think of such matters in the first place. There is a limit to how much we should encourage such change. It feels as if we are enshrining something a bit casual in standing orders, as far as changes to committees' remits are concerned.

The main questions that occur to me are: Whose responsibility are the changes? Is work under way, as we near the end of this Parliament, to consider how committees' remits have worked to date? It is one thing to think about the committee structure in the abstract—as happened before the Parliament was established and during the early stages of its work—but it is another to do so now that we have three and a bit years' experience under our belts.

Rather than changing remits incrementally, I would prefer that there were certain times when we took a step back and gave some thought to how the remits work, and that we got matters right at those times.

What scope is there for improving the dialogue or interface with the Executive on such matters? The same issue applies to ministerial portfolios. One of the drivers for change as far as the European Committee was concerned was the way in which ministerial portfolios are organised. I am not suggesting that anything should be formally established whereby committees could or should work directly in line with ministerial portfolios—or, conversely, that ministerial portfolios should be directly aligned to committee portfolios. I do not think that that would be possible, in any case. However, it is clearly desirable to have some symmetry between the two. That would avoid the ad hocery that has existed during the first Parliament, when there have been series of changes to ministerial responsibilities that have had a knock-on effect on committees.

Forgive me for extrapolating on a small and simple proposed change.

I see an article developing.

It is important that we think about such issues more globally—it will be to our discredit if we fail to do so when we have the chance. This is the right time for us to think about such issues; if we do not we will be into another Administration without having thought about them. If you would like an article, I will be happy to provide one.

I am not saying that such issues are unimportant, but the issue relating to committees that shadow ministerial remits essentially concerns subject committees, which are established by the Parliamentary Bureau rather than by the standing orders. Later, the committee may wish to discuss that matter properly. In dealing with the mandatory committees, we are dealing with much tighter and more specific issues. I hope that the assistant clerk can tell me whether the mandatory committees are founded in the Scotland Act 1998 or only in the standing orders.

The mandatory committees are founded only in the standing orders. There is no legal requirement for them under the Scotland Act 1998.

So they are in the standing orders and not covered by the practices or decisions of the Parliamentary Bureau. There must therefore be a mechanism for changing remits.

We have received ad hoc and incremental bids from committees to change their remits. As the discussion has progressed, I have come to understand the purpose of the third proposed change. There is nothing sinister or difficult about it, but I wonder whether it is necessary and whether we might find in future that, having agreed such a mechanism for changing a committee's remit, we will want to change a mandatory committee's remit but find that the reasons or the arguments that are given for so doing do not fit with the amendment and that we are bound by the new standing orders. The amendment might be a loosening or enabling tool, but it might also restrict our opportunity to make changes in future. I wonder whether the third proposed change should be issued simply as guidance to committees that are considering asking for changes in their remits, rather than be enshrined in the standing orders.

I agree with the convener. If committees want to change their remits, could not we ask them to propose changes case by case? If the committee is a mandatory committee, it will have been established for a particular reason. It will have been thought essential that it must be treated as a mandatory committee and that it must be part and parcel of the Parliament. Changing its remit is therefore a serious matter. Rather than have a loose rule that allows ad hoc changes to happen, should not we consider changes, as per the European Committee's request today? It would be incumbent on the Procedures Committee to meet timeously to expedite proposed changes to standing orders. Proposals would be considered case by case.

I want to clarify something with Stephen Imrie. The first two proposed changes are your changes to meet the European Committee's requirements and I think that they are acceptable to the committee. The third proposed change is not your change—it is from the directorate of clerking and reporting and seeks to establish an umbrella approach. Nothing in it is specifically pertinent to the European Committee. If we agreed the first two changes and sought further discussion on the third change, that would appear not to interfere with the European Committee's objectives or prevent the first two proposals from proceeding imminently to the Parliament.

That is my interpretation of the matter. The first and second proposed changes are specific to the European Committee's request to conduct scrutiny, but the third proposed change relates to a broader issue. I believe that your interpretation is correct, but if it proves to be incorrect, I will be happy to contact you.

I therefore suggest to the committee that we can resolve the issue by agreeing on and recommending the first two proposed changes and reporting to the Parliament on the matter. We can seek a paper from the directorate of clerking and reporting on the third recommendation in the fullness of time. That will allow us to have a more focused discussion on the need for a chapter on changing committee remits.

I agree whole-heartedly. Would the paper touch on the points that Susan Deacon made about reviewing mandatory committees?

If we invite the directorate of clerking and reporting to give us a paper on standing orders changes in relation to mandatory committees, that will be quite a tight and specific remit, which should encompass every aspect that the directorate of clerking and reporting might want to tidy up at the same time. The other points, which concern ministerial relationships to subject committees, are not really matters for us to initiate, although we might wish to discuss them with the Parliamentary Bureau and the Executive. Those other points are not part of the mechanical process of changing the standing orders to facilitate the work of the mandatory committees. Members might wish to think further about what they would like to do about subject committees—that would not be ruled out of order when we come to discuss the mandatory committees. We should not dive in at the deep end. We should go away and think about what the committee wants to achieve and what right, remit and time scale it has to carry out what could be a significant piece of work. The area is fairly sensitive, as we would be dabbling in the remits of the bureau and of the Executive. That is not to say that we should not carry out such work, but let us disentangle the two procedures.

Do members agree to approve the recommended changes 1, 2(a) and 2(b), to reflect further on change 3 and to report to the Parliament on the recommendations to which we agree?

Members indicated agreement.