European and External Relations Committee, 05 Dec 2006

Meeting date: Tuesday, December 5, 2006

Official Report 214KB pdf

---

Legislative and Regulatory Reform Act 2006

Agenda item 3 is on the Legislative and Regulatory Reform Act 2006. We need to consider correspondence from the Scottish Executive on the committee's consideration of the legislative consent memorandum on the Legislative and Regulatory Reform Bill, before it received royal assent at Westminster.

As you all know, I wrote to the Deputy Minister for Finance, Public Service Reform and Parliamentary Business further to the bill being considered in the House of Commons on 7 November, seeking his view on the fact that the UK Government's position seemed to have fallen short of what the committee expected, given his assurances at our meeting of 26 September. The minister's response is attached to members' papers. I invite comments.

We are entitled to feel a little disappointed and let down, although I would not overstate it. We all found ourselves at the cutting edge of the argument, and the matter became a huge cause for us. To a degree, the issue is semantic. The minister referred to the comments made at Westminster

"that the Scotland Act is not formally exempt from the Bill".

That is, of course, true, and is not actually inconsistent with what we were saying. The minister said that, although the Scotland Act 1998 "is not formally exempt", it is, as a matter of practice or law, constitutional, therefore it could not come under the practical scope of the Legislative and Regulatory Reform Act 2006. I thought that the Westminster people would say both bits of that. In other words, they would say not just the bit that they said but that, as a Government, they take the view that the Legislative and Regulatory Reform Act 2006 could not be used to amend the Scotland Act 1998. I expected them to say that in terms. Their failure to do so is a little disappointing.

It is impossible to identify where the blame for that lies. There might not be any blame. It might be a case of that well-known political theory that, when in doubt, it is more likely to be a cock-up than a conspiracy. I suspect that that is the case here. I suspect that there is no conspiracy, but a breakdown somewhere. I reiterate that I am disappointed.

George Lyon spoke to the Parliament before the vote on the legislative consent motion and was clear about the Executive view, and I understand his position. He said that the reason for seeking assurance from UK ministers was

"for ensuring that the matter was put beyond doubt".—[Official Report, 5 October 2006; c 28336.]

Given that the UK minister has not used the same form of words and that the interpretation of the Scotland Act 1998 is very much within Westminster's remit, I would have thought that the position is, at the very least, left in some doubt. Arguably, the situation is rather worse than that. It raises a serious issue about the information that is given to members of this Parliament before we vote on legislative consent motions. I do not doubt that the Executive sought to get on the record at Westminster the statement that it said it would. However, there is no mechanism for its ensuring that such a statement can be put on the record there before we vote here. That raises a broader issue than the point that is raised in this instance. It leaves me uneasy as to what the actual position is with the legislation.

We could easily jump up and down and make an awful lot of noise about this. We are dealing with something that was said in the House of Commons, during what was, from what I read, a reasonably heated debate on the very point that we are discussing now. Whether the UK minister was being as accurate as he should have been in that atmosphere is difficult for us to tell. I would hate to think that the Deputy Minister for Finance, Public Service Reform and Parliamentary Business has had the wool pulled over his eyes. I do not think that that is what has happened. I think that the Executive has acted in good faith, to be fair.

This might not be about semantics, but there is an issue around the tone with which things have been put across at the UK level. That is different from the tone that was set here, where the matter was beyond doubt, taking into account what happened in the chamber, as Derek Brownlee identified. I no longer think that the issue is beyond doubt, and that concerns me. Having said that, I do not know whether, in practice, the UK Government could or would wish to use the framework to introduce legislation to amend the Scotland Act 1998.

That is where we are today, but in 10 or 15 years' time there might be a different background to all this—a different set of parties might be in place and the UK Government might take an entirely different tone. The danger will not emerge today, but I am worried that it might emerge later on. That said, there is not much that we can do at this stage. Indeed, if we shouted it from the rooftops, I doubt that anyone would hear us. It might be more to our advantage to find a constructive way of making our voice heard. I hope that I have explained that clearly enough.

It will be difficult to find a way of taking this issue forward, although I see that, in his letter, the minister says:

"I also undertook to write to the UK Government laying out our view and asking that a UK Government Minister make a similar statement in Westminster proceedings."

I do not consider a tetchy exchange in a House of Commons debate to be that statement. We have to go back to the minister and get that view in writing.

Hearing that you will still be worrying about this problem in 15 years' time has cheered me up no end, Bruce. Some of us will find that greatly encouraging.

I take Derek Brownlee's point, but I simply do not think that this matter is in any doubt. The amendments that were tabled to exclude constitutional provisions from the scope of the Legislative and Regulatory Reform Bill killed the concern. I have little doubt that, in that respect, the Scotland Act 1998 is a constitutional matter.

However, although I am not worried about it, I find it extremely disappointing that no one at Westminster has made a clear statement on the matter. We should do a little more on this. There is no reason why we cannot go back to our minister and say, "You said that you were going to get a minister at Westminster to make this statement, but no one has done so. Perhaps a mistake has been made or there has been a breakdown in communication. Could you get confirmation in writing from Westminster that, although no one has said as much, they are sorry that this has been missed out?" I still want written confirmation. Indeed, we are due that, almost on principle.

I agree.

Members of the House of Commons, no matter whether they are Opposition members or Government ministers, can say what they like. Their comments are recorded in Hansard, but they might still not mean very much. Moreover, a ministerial statement on the record in the House of Commons is usually binding on the Administration of which the minister is a member, but it certainly does not bind successor ministers or Governments. What really matters is not what it says in Hansard but what it says in the statute book. This is the difficulty in which we find ourselves.

There can be no doubt anywhere that the Scotland Act 1998 is constitutional. If there is a clear understanding by all concerned that secondary legislation cannot amend it, I think that that is fair enough. However, I agree with Bruce Crawford and Gordon Jackson that any statement must be cast more firmly than it is at the moment.

Frankly, I find it weird that what started life as an apparently well intentioned measure that sought to make it easier to update, clarify and simplify regulations and legislation should come with baggage that includes the scope to amend by ministerial diktat quite significant legislation. I am astonished that any party at Westminster agreed to the legislation in that format, and I find it inconceivable that it was supposed to apply to constitutional matters. I agree with everyone that we should have one more go at this, certainly to nail down the Executive and, if possible, to secure a rather more bankable assurance and undertaking from our Westminster counterparts.

I will take Gordon Jackson and Jim Wallace before I bring in Derek Brownlee again, because our legal eagles have kept us right through the whole process.

John Home Robertson is right to say that what is in Hansard does not bind a future Administration and that the statute book is what matters. However, the issue is not so simple. If the matter goes to court, the court's scrutiny of the statute might well involve examining the intention behind it. At that point, a lawyer will place before the court a copy of Hansard. If the matter is black, it is black; if it is white, it is white. However, if any area is open to interpretation, the court will look at what was said in Hansard. Is that not right, Jim?

Yes, that arises from Pepper v Hart.

That is a matter of law, so the fact that something is in Hansard is not unimportant to the future interpretation of a doubtful matter—not that I think the point is doubtful. We cannot say that the fact that something is in Hansard does not matter, because it has legal significance.

Jim, did you want to make a point of clarification or a recommendation?

I simply wanted to agree with what has been said, and to add the point that we got a better interpretation from the minister because of the way in which we approached the matter. Ultimately, everyone was trying to be terribly constructive and matter of fact about it, which probably contrasted with the House of Commons. I can imagine the atmosphere there. There may have been an element of clever point scoring, which we did not engage in when we came to our final deliberations, because we sought to make things as clear as possible.

I will not dissent from the suggestion of getting the minister to write again to try to get a statement from the United Kingdom minister in a calmer manner. The only question that I have about that follows on from Gordon Jackson's point: what is in Hansard would carry weight with a court if there was a question of interpretation, but I am not sure what, if any, status a letter would have. It could be passed on to the committee and we could ensure that it was published. However, I take the view that our main achievement was the amendments that introduced the reference to measures of constitutional significance and narrowed the scope for the use of any orders under the Legislative and Regulatory Reform Act 2006. That is a more bankable assurance than an exchange of words.

When we questioned the minister, we were clear as to exactly what the provisions meant and we asked about minor amendments and constitutional issues. The minister was clear that we were talking about the sequencing and renumbering of provisions. I do not know how that can be compared to some sort of constitutional change to the Scotland Act 1998. Realistically speaking, I cannot see it.

I agree, but it would be nice to get a promise.

Gordon Jackson helpfully made a suggestion about how Hansard would be read in court. I wonder whether the Scottish Executive minister's responses and assurances to the committee in the Official Report would have the same weight and could form part of any evidence at some point in the future.

I have jotted down a couple of things. I think that there is general agreement that we should write to the minister and ask him to clarify paragraphs 3 and 4 of his letter. Have I picked that up properly?

Members indicated agreement.

Derek Brownlee raised another point at the beginning, which I had noted also. The issue with any legislative consent motion is whether all the amendments at Westminster should be concluded before we are asked to make a recommendation to the Parliament. There might be occasions when that would not be possible, but is it a general principle that we think should be the normal practice?

What are you suggesting, Linda? One of our difficulties was that, at one point, when the minister came to us, we did not know what the amendments were going to be.

That is what I mean.

If we knew what all the amendments were, we would be in a clearer position. However, that would mean that we would be unable to influence the process. With the Legislative and Regulatory Reform Act 2006, we were able to tell the minister that we did not think that something was acceptable and ask him to go back and clarify it. There are arguments on both sides but, if it is a fait accompli, we lose any ability to influence the final outcome.

I would be wary of getting into any position in which we give approval after the event.

Can I just interject? I think that I perhaps said it wrongly. If that is what you are picking up, perhaps I used the wrong words. Bear in mind that I was not here when we last discussed the matter, because I was off sick. What Irene Oldfather said has just triggered a question in me: did we know the wording of the amendment that was being tabled?

Yes.

But it had not been agreed.

Right. Thank you for clarifying that.

As Jim suggests, the amendment was more important. The amendment was the crucial thing.

A point arises from all this. When ministers raise issues to do with Sewel resolutions, we should perhaps suggest to them—it will be up to colleagues to think about this—that there is no reason why there cannot be a conditional resolution. We could say, "As long as X, Y and Z transpire, this Parliament can support the resolution." That would give us all a safety net. I do not know whether that would be technically possible.

I can understand that from a political point of view. In this particular case, it did not matter, because it was clear that the Government had given in to Opposition pressure to table the amendment, so there was never any doubt that the amendment would be passed. However, situations could arise in which we would not know whether an amendment would be passed. I do not know whether Bruce Crawford's suggestion would be technically possible.

It is perhaps worth teasing the issue out a little further. Could we ask the clerks to speak to the legal eagles?

The Procedures Committee conducted quite a lengthy investigation into legislative consent motions, and I am sure that this issue came up. If we apply strict constitutional theory, under the terms of the Scotland Act 1998, the Westminster Parliament can legislate on whatever it likes. We are talking about a convention, but conventions matter in our constitution. You should never ask a question when you are not entirely sure what answer you will get. You could apply a condition, but if the condition was not met, what then?

What we are doing is consenting to Westminster legislating. I might have misunderstood you earlier, convener, but I was going to say that, although giving that consent is just a courtesy—albeit part of an important convention that has grown up—it is too late to change things afterwards, and once something has been done, you cannot really consent to its being done, because it has already been done.

It might be worth while checking what happened when the Procedures Committee looked into this. Parliament might consent to legislation along particular lines—particular amendments or a particular bill—but a significant change could take place. Now, who would decide what constitutes a significant change? In some circumstances, there would be an obligation on the Executive to come back to Parliament if a material change occurred after the passing of the legislative consent motion.

We might consent to black, but it might turn out to be white.

In such a case, there would be an obligation on the Executive to come back to Parliament.

But how could we deal with that? How could we reverse it? If we consented to a Sewel motion on the basis that something would be black, but it turned out to be white, what could we do?

It is political. The case that we have been discussing was political. We brought pressure to bear and changes were made.

Much as I am enjoying this discussion, Irene Oldfather is probably quite right to suggest that we are going off track a bit. We are being philosophical. I am going to ask Jim Johnston to clarify where we are with this case, and what precipitated events. I will then invite quick comments from members. We should bear it in mind that, when the minister responds to us, everything that we have said today, which is being recorded, will be considered. Our points will be responded to and we will hear the Executive's view.

Members will recall that part of the difficulty was that the bill was near the end of its progress at Westminster. We were therefore right up against it as we tried to consider the LCM, which caused difficulties for both the Executive and the committee.

If there were material and significant changes, Jim Wallace is right—we would be in a political situation. There would probably be very little we could do about it. However, as they might say in Fife, the spoon would have to be longer before we supped with them again. That is realpolitik. We will have to put the point to the minister, and try to—

Nail it.

Nail it—that is the expression.

I am sure that we will get a detailed response to all of the comments that we have put on record today.

I look forward to it.

Do you, Irene? We will set aside time to discuss it at the next meeting.