Constitutional Reform and Governance Bill
The next item concerns a legislative consent memorandum on the UK Constitutional Reform and Governance Bill. I invite the minister to make a brief opening statement.
The UK Constitutional Reform and Governance Bill was originally laid before Parliament in the 2008-09 session and progressed as far as the committee of the whole House stage, when two amendments were agreed that are relevant to the LCM. The bill was carried forward into the current session and re-presented to Parliament on 19 November 2009, when the first and second reading stages were taken without debate. The next committee stage is scheduled for 19 January.
The bill runs to 57 clauses and nine schedules. Its purpose is to take forward the UK Government's programme of constitutional reform over a wide range of provisions relating to: the management of the civil service; the parliamentary process for the ratification of treaties; further reform of the House of Lords; protests around Parliament; time limits for human rights actions against devolved Administrations; the independence of the judiciary, the Comptroller and Auditor General and the National Audit Office; and the transparency of financial reporting to Parliament.
Of those provisions, it is proposed that only two should extend to Scotland. By virtue of the Sewel convention, they are subject to the consent of the Scottish Parliament, and it is those two matters that I am here to give evidence on today. The provisions are contained in part 1, on the civil service, and part 5, on human rights claims against devolved Administrations.
The civil service chapter covers three main areas: the management of the civil service; arrangements for appointment of special advisers; and the creation of non-departmental public body status for the Civil Service Commission. The provisions in the chapter are designed to place existing administrative arrangements for the management of the civil service on a statutory footing. They do not make any substantial change to current practice. They are not contentious, but confer the following new functions and duties on the Scottish ministers.
First, there will be a duty on the First Minister to lay the code of conduct for civil servants before the Scottish Parliament—officials are currently in discussions about the detail of whether the Scottish code should apply to core Scottish Government staff or to civil servants in the wider Scottish Administration. Secondly, there will be a duty on the First Minister to lay the code of conduct for special advisers serving the Scottish Government before the Scottish Parliament—that was agreed by amendment on 4 November, after the UK Government conceded to our argument that that provision should be included in the bill. Thirdly, there will be a requirement that the First Minister personally selects for appointment the people to be appointed as special advisers.
Fourthly, there will be a duty on the First Minister to prepare an annual report on the number and costs of special advisers, and to lay that report before the Scottish Parliament. Fifthly, there will be a duty on the Scottish ministers to provide the Civil Service Commission with any information that it reasonably requires, in the event of an agreement between the Prime Minister and the Civil Service Commission that the commission should carry out additional functions. Sixthly, there will be a duty on the First Minister to lay before the Scottish Parliament a copy of the annual report of the Civil Service Commission.
I will now turn to the second of the two matters on which I wish to give evidence, which relates to time limits for human rights actions against devolved Administrations. The amended part 5 of the bill introduces a one-year time limit for human rights actions against the devolved Administrations in Wales and Northern Ireland and, in effect, continues the one-year time limit for human rights actions against the devolved Administration in Scotland. It also removes the additional competence that was granted to the Scottish Parliament to enable the passage of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, and it will repeal that act.
By making provision in respect of the currently devolved matter of time limits for convention rights proceedings and removing that matter from this Parliament's legislative competence, part 5 triggers the requirement for an LCM. At present, the draft motion does not reflect the basis on which part 5 triggers the requirement for an LCM, but I assure members that I will correct its terms to ensure that it does.
By way of background, I should say that the provision arises from the discussions that concluded last year between the Scottish Government and the UK Government to resolve the anomaly that was exposed by the House of Lords judgment in the Somerville case. In that case, it was held that human rights cases that were brought against the Scottish Administration under the Scotland Act 1998 were not subject to the same one-year time limit as cases that were brought under the Human Rights Act 1998. The initial response to that anomaly was the introduction of a bill in this Parliament to create a one-year time limit for human rights cases that were brought under the 1998 act. On 23 July last year, that bill received royal assent as the Convention Rights Proceedings (Amendment) (Scotland) Act 2009.
During the discussions about the Somerville case, the UK Government said that it intended to replace our legislation with provisions that would extend similar protection to the devolved Administrations in Wales and Northern Ireland while maintaining the protection for Scotland. It has used the Constitutional Reform and Governance Bill for that very purpose. Given that the bill will provide the new basis for the one-year time limit for human rights claims against the Scottish Administration, it follows that both the Convention Rights Proceedings (Amendment) (Scotland) Act 2009 and the order conferring competence on the Parliament to pass that act are redundant and so will be repealed. However, the substantive position in Scotland will remain unchanged.
The use of a legislative consent motion to extend to Scotland the clauses of the UK Constitutional Reform and Governance Bill makes good sense. Part 1 of the bill will put the current administrative arrangements for the management of the civil service on to a statutory basis. Part 5 will continue in force the one-year time limit for human rights actions against the Scottish ministers and put that protection on to the same statutory footing as that which will apply to the devolved Administrations in Northern Ireland and Wales.
I invite the committee to support the legislative consent motion. I am happy to provide further clarification of any points.
Does the bill or the legislative consent memorandum have any implications for the economy, energy or tourism?
I think that it has very minimal implications. I struggle to find an example.
I share the puzzlement of the convener and minister about why this LCM is before us.
I should declare an interest as a former special adviser to Donald Dewar, as I wish to ask a question on special advisers. Buried in the small print is the fact that one consequence of agreeing to the draft legislative consent motion is that we will completely remove the current statutory limit of 12 special advisers serving the Scottish Government. In principle, if the motion is passed, the First Minister will be empowered to appoint as many special advisers as he or she might wish. Will you clarify that that is a consequence of the provisions before us today?
You will see from the nodding heads around me that that is indeed the case.
Do you regard it as uncontroversial to move from a limit of 12 to no limit of any kind and no parliamentary oversight?
I reserve my opinion on that at the moment.
I just note that you describe the provisions as non-contentious and non-controversial in the document. Sadly perhaps, I am not sure that that is how all Scottish civic public life, particularly the fourth estate, would see it.
Given your desire for the changes to be non-controversial, did the Government consider retaining a limit on the number of special advisers or did it consider whether the Scottish Parliament might appropriately have oversight of that? The provisions explicitly do not give the Parliament any role in limiting those numbers.
From the briefing that I have had today, I am not sure that that debate has taken place.
Margret Coutts (Scottish Government Human Resources and Corporate Services Directorate):
Perhaps I could offer clarification—please excuse me if my voice goes.
In the new provisions there is a duty on the First Minister to prepare an annual report on the number and cost of special advisers and to lay that report before the Scottish Parliament. That is seen as one means by which the Scottish Parliament will be able to make its comments on the number of special advisers. As you know, at the moment that is done through an inspired parliamentary question. The bill will put it on a more statutory footing.
It is not really putting it on a statutory footing simply to require that a report is laid if we have no power of any kind to influence the number involved. The provisions do not allow for the Parliament to have any formal role in deciding what the appropriate number might be. Was that matter given consideration in the drafting of the provisions?
Not in those terms.
How many special advisers are there currently?
There are currently 10 special advisers.
The other way in which the provision differs from that in the UK is that in the UK special advisers are ministerial appointments but in Scotland every one is appointed by the First Minister. That has led to concerns that those advisers are overly concentrated in the media arena and perhaps less in the policy arena. That might change if the advisers were aligned with the work of individual ministers. Why, when moving responsibility to Scotland, was it decided that special advisers should remain personal appointments of the First Minister? Why have we not moved to the UK Government system, in which they are ministerial appointments?
That is an element of the LCM. There is a requirement that the First Minister personally selects for appointment those to be appointed as special advisers. I do not know whether that is derivative of practice in Westminster.
It definitively is not. Here, special advisers are appointments of the First Minister, whereas in the UK Government they are appointments of ministers and their tenure terminates when that ministerial tenure terminates. As I say, the fact that in Scotland they are appointed exclusively by the First Minister has led to concerns about their being overly concentrated in one area of activity. Why do we not follow the UK model?
I seek clarification on that from my officials.
The intention behind the CRAG bill is simply to move current administrative arrangements on to a statutory footing. It is not intended to go further than that.
But it does not put the arrangements on a statutory footing with respect to the limit on special advisers. It moves some aspects on to a statutory footing, but not others.
If members have more questions, I ask them to keep them brief, as we are short of time for the next agenda item and I do not want a huge debate. If members are not content with the legislative consent motion, they can ask for it to be debated in Parliament.
Further to Wendy Alexander's questions, is the minister aware of any intention to appoint an increased number of special advisers when the bill is passed?
I am aware of no intention to do that.
Has the procedure differed under the present Administration compared with previous Administrations? Has it always been the First Minister who has appointed special advisers?
That is my understanding, although I suspect that some committee members will be more aware of that than I am. I see nodding heads, so I suppose that the answer is yes.
As there are no more questions, we will consider our approach to the LCM but, before that, I want to say that I find it strange that the motion is before us, as it does not seem to fall within the committee's subject matter. Given that the bill deals with matters such as codes of conduct for civil servants and the appointment of special advisers, it might have been more appropriate for the LCM to go to the Standards, Procedures and Public Appointments Committee and, in relation to the human rights measures, it would have been more appropriate for the Justice Committee. I have no idea why the issue has come to this committee, or why we did not receive the LCM on the Financial Services Bill, which went to the Finance Committee and will come before the Parliament today but which falls within our remit. However, that is just a comment.
Are members content that we recommend to Parliament that it agrees to allow the UK Parliament to legislate on our behalf as set out in the legislative consent motion, and to leave it to me and the clerk to draft a report on that?
Members indicated agreement.
I thank the minister for what was a long session.
I suspend the meeting while we change witnesses. It must be a brief suspension, as the witness for the next session has limited time and we need to get started quickly.
Meeting suspended.
On resuming—