Remit
The first item is the committee's remit. The substance of the issues paper is in the appendices—annexe A and annexe B. The matter at issue is the basis on which the committee will examine the administrative and constitutional matters that are added to its remit.
The first suggested option—members might think of further options—is that the committee has a full scope as described in annexe B, although we have agreed that essentially we would operate in a reactive manner if we received referrals from other agencies within the Parliament, including the Presiding Officer. In annexe A, the same procedure is set out, but it is defined more clearly. It is suggested that the Presiding Officer would be the filter through which constitutional or administrative issues would be referred to us for consideration.
With due respect to my esteemed former colleague, I am not sure that filters are necessary. Can we not be our own filter? If somebody comes up with a pretty silly idea, we can say that it is a silly idea and not pursue it. Is the concern that we would deal with things that are reserved matters or matters outwith our ken?
I think so. Does the minister want to expand on what the concerns are?
They relate more to the original concern about there not being a route for some issues to be discussed. It is more about the committee being a place to discuss things for which there was no other forum. As such, those matters would be emerging from another source, and would not be matters that the committee would discuss just for the sake of it.
One issue was about the House of Lords: it was felt that the Parliament perhaps needed an opportunity to consider some of the issues relating to its reform, but there was no particular place to refer the matter. The initial intention was to give the committee additional powers so that it could consider such matters if they were referred to it.
I do not think that there was ever an intention that the committee would be an open house, and would be able to consider any constitutional issues referred to it. That would be seen as widening its remit. The intention behind having a filter was not just to have a filter as such, but was more to have a natural source of the matters that would be referred—it would not be a filter to stop things coming to the committee.
In principle, I am not opposed to a filtering mechanism. I accept the point made in the paper that having a filter for this committee would be unusual—but this is an unusual committee. It operates on behalf of the Parliament and is, to an extent, a housekeeping committee for the Parliament.
The question is what the proper filter or mechanism is. If we take the Presiding Officer out of the equation, the matter is about the committee acting on behalf of the Parliament, in examining the issues that come up.
Who, on behalf of the Parliament, should be referring such issues to the committee? The Presiding Officer represents one mechanism, but there is another: I do not think that one should bind the hands of individual members who have concerns about a given matter. Rather than discussing this in terms of being for or against a filter and then deciding whether the Presiding Officer or the Parliamentary Bureau should be the filter, it might be simpler to resolve the problem in this way. As shown in annexe A, the new paragraph 2 of rule 6.4 would state that the committee
"shall examine such matters . . . falling within – . . .
(b) paragraph 1(b) and (c) as may be referred to it by the Presiding Officer".
We could add the words, "or requested by a member of the Parliament". That would narrow it down; it would mean that we were not just sitting waiting for people to write to us. There could be a danger of members of the public petitioning the committee on a range of constitutional matters that were not our concern.
However, if the Presiding Officer alone were to refer something, that would be a blockage rather than a filter, if I can put it that way. We must be concerned to give members rights within this Parliament. Members could refer matters to us; we would then decide whether to take them on. To a greater or lesser extent, the committee is a political committee, as are all committees of the Parliament. Therefore, a referral to us would carry a political weight on which we could then decide.
I would like the instigation to come not just from the Presiding Officer but from members of the Parliament. Paragraph 2(b) would be acceptable to me with such an addition.
One way in which matters frequently come from members to the committee is through something happening in the chamber, which the Presiding Officer then refers to us. Sometimes, it has been the member who has referred something to the committee, usually if they have not agreed with the Presiding Officer. What Mike Russell has suggested would certainly extend and acknowledge the rights of members.
I am not sure how Iain Smith would react to that. It might throw open the possibility that the committee would be invited to consider anything or absolutely everything. It might recall the fear of our getting bogged down in matters that are not appropriate for us to consider. It would throw back to us the initiative and responsibility to filter such matters ourselves.
Making that addition to paragraph 2(b) probably would not achieve the intention expressed in our previous discussion on the remit, which concluded that the committee should be able to discuss matters that the Parliament feels should be considered. It is a question of the Presiding Officer acting on behalf of the Parliament in this case, rather than on behalf of individual members of the Parliament.
The point that Mike Russell made is obviously valid, but if a member wants the Procedures Committee to examine something, it is almost like a point of order when he or she says, "Can you refer that matter to the Procedures Committee, Presiding Officer?"
That would be one route to take, but suppose a member did so and the Presiding Officer said that he did not want to refer the matter. I think that a member would then have a right to approach this committee—but that does not place an obligation on the committee to accept the member's request. The committee might say that the Presiding Officer has refused to refer the matter, or it might ask whether the matter has gone to the Presiding Officer and whether he wants the committee to consider it.
At least that would give the member the right to approach the committee, which paragraph 2 currently excludes. I would be very nervous about excluding the rights of members of this Parliament; to maintain that right is important. The weight that we gave to a referral from a member of the Parliament as opposed to one from the Presiding Officer would be a moot point—but I do not think that we should take such a right away.
The right would exist for all other matters that came before the committee, so we would be excluding a significant right were we to follow the current wording.
To return to our previous discussion on the matter, we talked about paragraph 1(c), which mentions
"any administrative matter arising from or relating to the Scotland Act 1998".
Our previous discussion reflected the concern about widening our remit in such a way that we could get into territory that perhaps we should not be treading in. We suggested a filter—who that filter would be was up for discussion—because someone could then say that a matter either should be discussed by the Procedures Committee or should go elsewhere if that was felt to be appropriate.
I still have that concern. I feel that if we open this up and say that anyone can approach the Procedures Committee with anything that they want, and that the committee will then decide on it, that is treading into that dangerous territory. I would be worried about the legal aspects—I do not know whether the clerks can clarify whether we have taken any legal advice. I still have the concern that, if there was not a filter to decide whether a matter was in the remit of the Procedures Committee, and therefore whether it should be referred to us, we would be treading in territory where we would not want to tread.
John Patterson (Clerk Team Leader):
The paper before the committee was written with legal advice.
Therefore, there would not be any legal implications if we took on anything that came to the committee, as long as it fell under the general headings. "Administrative matter" is pretty general.
John Patterson indicated agreement.
Looking at annexe A, I think that one could distinguish between paragraph 1(a) and paragraph 1(b) and (c). I think that this is what Mike Russell was saying, although I did not fully follow him. Paragraph 2(a) should be broadened out, but I am happy not to broaden out paragraph 2(b). If other, external matters are routed via the Presiding Officer, that is fine. However, on an internal parliamentary matter, a single member should have the right to say to the committee that it should be considered. Paragraph 2(a) should end with words to the effect of, "may be referred to it by the Parliament, by another committee or by another member".
Members should have a chance to raise any matter relating to the conduct of the Parliament. A route for external matters—if it is not a filter—via the Presiding Officer would be fair enough.
The ruling that Sir David Steel gave on Wednesday in response to my request for him to refer a matter to the Procedures Committee was, essentially, that any member or member of the Procedures Committee could raise an issue with the Procedures Committee. That ruling should be understood. Donald Gorrie is right and, although annexe A does not specifically refer to it, it is understood that a point of procedure can be referred to us by a member—there is the example of Dennis Canavan's letter, which we discussed at the previous meeting
The wording
"as it may determine appropriate"
is important. We have conducted our business on the basis that any matter referred to the committee is appropriate, and have not turned away any approach that a member has made. If that is how we understand what is appropriate, the rights of members will be protected.
The problem arises in relation to the extension of the remit into the areas that are outlined in paragraph 1(b) and (c) and the question whether members should be given the right to raise matters that they cannot raise at the moment because there is no forum in which they can raise constitutional matters. We might be put in the position of having to turn down members who raise matters that we do not wish, or feel that it is appropriate, to pursue. Such matters would go beyond the day-to-day working of the Parliament. For example, one can imagine a Scottish National party member raising a matter of profound significance to the constitutional settlement.
As we often do.
The committee must be able to point out that its purpose is not to rewrite the whole Scotland Act 1998.
Exactly; the committee can do that. The same potential exists for the abuse of standing orders. One can imagine ways of raising all sorts of things, but people do not abuse standing orders in that way. [Interruption.] Despite what Andy Kerr is indicating, members do not do that. Members could raise matters with the committee, and the committee could reply that it is not part of its job to adjudicate on them. I am concerned that a system of referral through the Presiding Officer does not establish the full rights of members.
It seems that we have accepted that we are working on annexe A. The difference of opinion arises in relation to the filter. The question is whether the Presiding Officer should act as the channel through which matters in the areas that are outlined in paragraph 1(b) and (c) might be raised, or whether any member should have the right to raise such matters.
I am happy to formalise: I suggest that—subject to a legal opinion from John Patterson—we add to paragraph 2(b), which says:
"paragraph 1(b) and (c) as may be referred to it by the Presiding Officer,"
the words "or any member".
That is a suggestion. Are there any other views?
In the absence of any other views, Michael Russell's proposal has been accepted by the committee.