Sewel Convention
The next item of business is a debate on motion S2M-3594, in the name of Donald Gorrie, on behalf of the Procedures Committee, on its seventh report of 2005, "The Sewel Convention".
Father Boland called on us to exercise humility and generosity, so I am happy to be humble and generous as a recent member and convener of the Procedures Committee and to give credit to other members who have been on the committee—particularly Iain Smith, the previous convener, and Karen Gillon, the deputy convener—and to the committee clerks and witnesses. I am sure that committee members who went through the arduous work will be able to explain their thought processes. I will try to explain the outcome.
Because we are tight for time, I will spare members a history lesson about Sewel motions. As everyone knows, they evolved as a way of dealing with the problems of having a devolved system of government. We have been feeling our way, but now is the time to codify a better system than the ad hoc system of the past.
Although members will not have a history lesson, they will have to have a new English lesson. We will now be talking about legislative consent motions and legislative consent memorandums. If members agree, those will be the official terms that are used in reports and all official documents. However, I suspect that most members will continue to talk about Sewel motions, because that is a wee bit easier.
What members are being asked to agree to has two main thrusts. The first is a change from the ad hoc arrangements that have hitherto existed to clear procedures that everyone should understand and which will be set out in standing orders. The second relates to the removal of the misconception, which exists in some quarters, that Sewel motions are about handing powers back to Westminster, whereas they are often about increasing the powers of ministers and the Parliament and clarifying other matters.
The Executive has produced a document rather at the last minute, so members might not have had a chance to read it. The Executive does not oppose the committee's proposals or recommendations to change standing orders. It has some concerns about one or two matters on which I think, with all due respect, that the committee is right and the Executive is wrong, but it does not contest the changes to standing orders, on which we will vote—the rest is all waffle.
Members are being asked to support a set of standing orders that will try to give the Parliament as much notice as possible of probable Sewel motions coming down the track. The proposal is that the Executive will produce a legislative consent memorandum within two weeks of a bill's appearance at Westminster. Similar arrangements will apply to amendments that will make bills relevant to devolved matters and, under a slightly different timetable, to private members' bills.
The Executive will send to all members a memorandum that sets out the extent of the impact on our affairs of a Westminster bill, its purpose and whether it affects the legislative competence of ministers, our competence or just bits of the law. The memorandum will set out why the Executive is or is not proposing a Sewel motion. The Executive does not see why it should produce a memorandum if it does not propose a motion, but the committee felt that it should set out the arguments, because somebody else might feel that a Sewel motion should be lodged. We must look forward to a time—perhaps "look forward" is the wrong phrase. I should perhaps say that we must anticipate a time when the Governments at Westminster and here are of different complexions, which might mean a tug-of-war between the two.
The Executive will publish and circulate a memorandum and the motion will be referred to the relevant committee or committees, which will scrutinise the issues and call witnesses as necessary. As we know, some Sewel motions are on small technical matters and can simply be nodded through, but others are serious and need the sort of scrutiny that is given to bills. If a proposal would give ministers more power to make subordinate legislation, it will have to go to the Subordinate Legislation Committee—we are not going to have any sneaky greater powers for ministers through the back door.
After a memorandum has been produced and the committee has considered the issues seriously, a legislative consent motion will come before the full Parliament, which will refer to a particular bill on a particular date. That is a slight bone of contention. The Procedures Committee felt that, if a bill at Westminster is withdrawn and reappears, a new motion should be required, because changes might have been made. If no changes have been made, the new motion can go through on the nod, but we feel that another motion should be required. The motion will also have to set out exactly the parts of the bill on which members are being asked to vote. Members will not need to agree to the bill as a whole at Westminster; they will vote on particular parts of the bill as they affect the powers of the Scottish Parliament. A vote will then be taken on the motion.
The proposed changes to the standing orders, which can be found in annex A of the committee report, use the word "normally" quite a lot. The aim is to give flexibility, because, along with the Executive, we accept that some measures may be more hurried than others. The committee feels that there must be co-operation between the Parliaments, not just between the Governments. As part of that, the Scottish Affairs Committee at Westminster has recently set up an inquiry into the issue. It is important that the Scottish Parliament plays a full part in that inquiry—we must give written and, if necessary, oral evidence. A better relationship between the Parliaments, not just between the Governments, would be extremely healthy.
I hope that the proposed changes will help us to handle better the thorny question of Sewel motions. By and large, the committee supported the changes totally. I hope that members will support the motion.
I move,
That the Parliament notes the Procedures Committee's 7th Report, 2005 (Session 2), The Sewel Convention (SP Paper 428); endorses its conclusions and recommendations, and agrees that the changes to Standing Orders set out in Annexe A to the report be made with effect from 30 November 2005, subject to the requirement in new Rule 9B.3.1 applying only in relation to Bills introduced, or amendments agreed to or tabled (as the case may be), after that date.
I thank the Procedures Committee for its thorough work on the Sewel convention. As the Minister for Parliamentary Business, I have many dealings with the committee and my experience is that its work is thorough on every front. I look forward to continuing to work with it. The work on the Sewel convention is particularly noteworthy, because it has allowed parliamentarians to put Sewel motions in context and to give them proper consideration. The committee's work was measured and considered. I also thank the Parliament's committees for their approach to the Sewel motions that have been passed. Although some members have issues with the convention, we have had thorough debates in committees and given Sewel motions proper consideration while dealing with the business efficiently and effectively.
As the convener of the Procedures Committee said, the report recognises the need for the Sewel convention and puts it into its appropriate context. The report acknowledges, and the Executive concurs, that the convention is there to be used in appropriate circumstances. However, it would be wrong for me to imply that we are complacent about the operation of the convention; indeed, we had already turned our minds to its effective operation, which is why the inquiry was timely and why we took great interest not only in the inquiry's conclusions, but in its proceedings.
I acknowledge the Procedures Committee's impact in dispelling misconceptions. I have attempted to do that, too, but the committee has made an effective contribution. The committee's rejection of any suggestion that the number of Sewel motions that the Parliament has passed can be meaningfully compared with the number of bills that it has passed is particularly helpful. The report has helped to establish a realistic assessment of the role of the Sewel convention.
As the committee's convener said, the convention has been used mainly for small and technical matters, but it has also been used to address important issues. He got the balance right in that respect. As we have seen, the convention has conferred functions on Scottish ministers in reserved areas, which is important. The mechanism has therefore proved to be useful for us and the committee considered the implications of that in its inquiry.
The Executive has had the opportunity to read the committee's report and we have given our formal response. It would be inappropriate to go through each recommendation at this point, but, with permission, I will highlight a few of the report's most significant areas.
The Executive agrees with the committee and with many of those who gave evidence that the Sewel convention or something like it must exist and that the mechanism is vital to protect the rights of the devolved Scottish Parliament. If we did not have such a mechanism, we would have to invent one. It is appropriate to have such a mechanism and it seems to work effectively.
Nonetheless, we agree with the committee that, although improvements have been made over the years, the current informal Sewel procedures are no longer entirely adequate. We recognise that the Parliament must have the information that it requires in order to make the informed decisions that we ask it to make and that that information must be provided systematically and as early as possible. Therefore, we are happy to work towards enshrining the procedures for considering Sewel motions in the standing orders, including specifying when a memorandum should normally be sent to the Parliament and the details that it should contain. When I gave evidence to the committee, I tried to indicate that we had been working towards doing that and towards improving practices on my side of the fence. It is now appropriate that we formalise those procedures and ensure that our machine co-operates properly with the parliamentary process.
We are keen to take on board the committee's suggestions about better early-warning systems for upcoming Sewels and about building on the existing arrangements. From now on, formal notification will be given to the Presiding Officer and all members after the Queen's speech of any bills on which the Executive intends to propose a Sewel motion.
I take the point about the term "Sewel motion". Procedures have changed and the precise definition of what the Sewel convention involves has been overtaken. Therefore, we need to think more broadly. We will have to wait and see how things develop in practice.
Does the minister think that the term "Sewel convention" was right at the time, but that the change of name will perhaps explain to the general public a wee bit more about what the convention means?
Yes. The committee made a helpful recommendation. Lord Sewel seemed to say that the term no longer applies to some of the processes that are associated with it. I understand the thinking behind the committee's recommendation.
We still need to talk to the committee about one or two issues. I am not sure about the points that were made about dates and I do not know whether there is any point in unnecessarily reconsidering procedures, but I am open minded about having discussions with the committee about that.
In conclusion, the report is a helpful contribution to the debate. We have moved on to much more systematic consideration of the issue, thanks to the work of the committee.
It is important to establish clearly at the outset what the report does not do. It does not take a view on Sewel motions that have been passed or offer any opinions on the merits or otherwise of particular Sewel motions. It does not set parameters to determine which Sewel motions are appropriate and which are not—perhaps sections of the media were looking for that. Fundamentally, it does not propose taking away the political decision that members must take on whether they consent to the English Parliament at Westminster legislating on issues that fall within the devolved remit of the Scottish Parliament.
It may have escaped the member's notice, but we still live in a United Kingdom and the Parliament that he mentions is a United Kingdom Parliament.
When we take the lid off and find out where the majority of its representatives come from, we know exactly whose Parliament it is. I support the people of England getting their Parliament back and look forward to the day when they re-establish their independence and no longer have to put up with Gordon Brown.
I make it clear that the report will offer not so much as a fig leaf of comfort to any Executive that seeks to duck its responsibilities or to shy away from sensitive areas by shuffling matters off to the English Parliament. No amount of changing the name of "Sewel motions" to "legislative consent motions" will prevent critical voices from being raised should this Parliament seek to dodge the bullets by passing the buck.
I put on record again my regret that the Procedures Committee voted by majority decision not to call Gerry Hassan as a witness to contribute to its deliberations. We only get the evidence that we ask for, as is often said, so I can conclude only that the majority of committee members did not want to call Mr Hassan as a witness because he is a well-known critic of the Sewel process. It is important that committees should listen to as many sides of an argument as possible. I regret that the committee was unable to listen, explore and challenge an alternative viewpoint.
Other evidence that was presented exploded the myth that the Scottish National Party always opposes Sewel motions just for the sake of it. A paper by Michael Keating and Paul Cairney analysed the 41 Sewel motions that were introduced in the Parliament until 2003. Of those 41 motions, only 20 were opposed, 19 of them by the SNP. Henry McLeish explained that, of those 19 motions, the SNP opposed
"13 for reasons of principle and six because the motions related to private members' bills, with which there is a particular problem."—[Official Report, Procedures Committee, 1 March 2005; c 823.]
Let me turn to some of the positive aspects of the report. There are areas of all-party agreement on Sewel motions, particularly where the motions involve the Scottish Parliament gaining additional powers. Because issues remain where the remits of the Scottish and English Parliaments cross and where Westminster bills partially infringe on devolved matters, no one can deny that there is a need for some form of agreement. Indeed, for devolutionists, if the Sewel motion procedure did not exist, it would have to be invented. Of course, Sewel motions could be done away with altogether if the Scottish Parliament were fully sovereign with the powers of the Parliament of any normal country. Areas of agreement extend to the need to formalise the existing process and to establish in standing orders a clearer foundation for the Sewel convention. In doing that, we would sweep away the present ad hoc arrangements.
I could have touched on many other areas and I am sure that others will do so during the debate. However, the most important issue to bear in mind is that, ultimately, it is for the Parliament to decide whether any matter should be Sewelled or consented to and that that is a political decision that no Procedures Committee report can or should seek to take.
I am standing in for my colleague Alex Johnstone, who is laid up with a back injury. However, I was a member of the Procedures Committee when the inquiry into Sewel motions was under way.
The Sewel convention originated with remarks made by Lord Sewel, who was then the junior Scottish Office minister responsible for steering the Scotland Bill through the House of Lords. Referring to the provision in the bill that asserts Westminster's continued right to legislate on devolved as well as reserved matters, he said:
"we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However … we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament."—[Official Report, House of Lords, 21 July 1998; Vol 592, c 791.]
I happily agree with that. In his evidence to the committee, Lord Sewel said:
"The Sewel Convention is an essential part of the constitutional architecture of devolution and prevents legislative competence becoming a contested area."
He warned against using Sewel motions in areas of major and controversial policy, saying that
"The Parliament should be very cautious in using the Sewel route for those matters",
because that was not what the Sewel mechanism was designed to do.
The Scottish Conservatives' view is certainly that a Sewel motion should not express an opinion on the merits of a bill, because the Scottish Parliament is not given enough time to scrutinise properly the subject in question. Neither should there be a presumption against the use of Sewel motions. It should be up to the Scottish Executive to prove that a Sewel motion is necessary.
We also think that the scale and scope of the proposed legislation should be considered and that there must be a consistent approach. A Sewel motion should not be driven by United Kingdom election timetables; we do not have to be driven by Tony Blair's agenda or by when he thinks that we should use Sewel motions. I mentioned consistency. We are introducing our own charities legislation in Scotland—the Charities and Trustee Investment (Scotland) Act 2005—in which the Inland Revenue will play a key role, yet we used a Sewel motion to agree to the creation of a crime agency, which is a purely devolved matter. That seems a little inconsistent.
The Conservative group basically agrees with the Procedures Committee's report. We agree that it may be necessary to rename Sewel motions, although as a keen historian I do not see why Lord Sewel should not keep his little moment of glory. We agree that the procedure should be set down in the standing orders of the Parliament, that the Executive should issue a statement after the Queen's speech on Sewels that are likely to arise, that memorandums should become formal parliamentary documents and that the lead committee report should be published five working days before the debate.
I am pleased to be taking part in today's debate and to have been a member of the Procedures Committee during its interesting inquiry into the Sewel procedure. At the outset, the committee anticipated that the inquiry would be extremely controversial. It would be fair to say that the media shared that view and were champing at the bit, spoiling for a fight. However, the evidence that we heard was consensual and in the end there was political agreement. Despite Bruce McFee's display of debating skills this afternoon, there was not such a big fight in the committee; he must have saved it all up for today.
The committee agreed that we need something like the Sewel convention to be in place; Lord Sewel himself said that we needed the convention or something similar. Important as the convention is, it is not the issue that our constituents have at the top of their list of things that they want MSPs to deal with, as was said a number of times by committee members.
Could not the same be said of the entire work of the Procedures Committee?
Indeed it could not. The Procedures Committee plays a valuable role in the Parliament. Committee members found the subject of Sewel motions to be of great interest, but they often said that it was not the issue that the people of Scotland were talking most about. However, I have had second thoughts about that, because there is one resident of Scotland who is the exception to that rule—Barry Winetrobe, reader in law at Napier University, who I know takes a keen interest in the matter. I do not know whether he conveyed that interest to his MSP, but I have certainly been grateful for his contribution to the debate and for the material that he provided to committee members.
The Sewel convention has been vital in ensuring the smooth functioning of devolution within the constitutional settlement. If the convention did not exist, I doubt that we would have had the parliamentary time to legislate in the areas that we have Sewelled since the Parliament's establishment. I can think of a number of Sewel motions on matters that were very important to constituents. For example, the Fireworks Act 2003, which started as a private member's bill at Westminster, has made a big difference. It would be wrong if we allowed our legislative programme to be thrown off course by what is happening down at Westminster, but it would be equally wrong if we did not take the opportunity to use a Westminster bill when we thought that it would be beneficial and would provide for the people of Scotland.
Donald Gorrie outlined the committee's recommendations to the Parliament. Like him, I encourage members to support the motion in his name. We had an in-depth look at the procedure. I believe that the recommendations that we produced are right and I encourage the Parliament to support them.
One issue is the name of the procedure, but, as has been asked before, what is in a name? Lord Sewel will go down in history. He has made his mark on the devolution process and I believe that we need to have a name that is understood by members of the Parliament and by the people.
Like Jamie McGrigor, I was a member of the Procedures Committee when it got stuck into the vexed question of Sewel motions. I have therefore been asked by Chris Ballance, who is now on the Procedures Committee, to fill in for him in this debate. I am pleased to do so, because I welcome the report, which is a strong riposte to those who questioned the value of Sewel motions and how the process worked.
The report does the two things that Donald Gorrie described in his opening speech. First, it lays out a set of standing orders—a set of principles for how we use Sewel motions. It recommends replacing the term "Sewel motion" with "legislative consent motion", because it is important that we should not treat Sewel motions as if they were normal motions. We should not treat them according to the standard principles for motions set out in chapter 8 of standing orders and we should not treat them on an ad hoc basis. We have instead set out their own standing orders.
We did not think that the motions should be named after a former Scottish Office minister, given that the situation has changed so much since he talked about the need for the convention. A new name is required. We thought that "legislative consent" captures what the process is about; it is about the Parliament consenting to legislation. That is much clearer and much more understandable than naming it after the Government minister from 1998. The name change is important as part of the recognition that the process is new. On the new procedures, I share Donald Gorrie's belief that the committee is right and the Executive is wrong. I welcome that statement.
The second important matter that is dealt with in the report is the need for a political consensus on the use of Sewel motions. In the debates that we had in the committee, I learned a great deal about Sewel motions and how they interact with the UK constitution and the devolution settlement. I was particularly struck by Henry McLeish's evidence to the committee on 1 March 2005. He made two key points. First, he reminded the committee that, as Westminster is sovereign under the current settlement, we need a structure for legislative consent because
"without it parliamentary sovereignty at Westminster would remain entirely intact. I am not saying that that sovereignty has been changed in a dramatic fashion, but the Sewel convention means that, to all intents and purposes, the parliamentary sovereignty of Westminster concedes to the Parliament in Edinburgh the ability to legislate".—[Official Report, Procedures Committee, 1 March 2005; c 819.]
We must recognise that the Sewel convention—legislative consent—is a constraint on Westminster to legislate in devolved areas. That is a key understanding.
The second key point is that, in a situation in which Westminster is sovereign, legislative consent motions and Sewel conventions—even the Scotland Act 1998—can be changed by a single act of Parliament at Westminster, because the UK lacks any kind of written constitution. Scotland has the Scotland Act 1998, but the UK has no such act. Given that the UK Parliament remains sovereign, I think that we will still face troubles in the future, because everything is at the whim of Parliament.
The committee's report represents a welcome contribution to the evolution of devolution and sets matters in a clearer framework. However, the process of change will continue. What is fundamental is that we avoid the consensus being undermined and that we avoid situations in which it can be argued that the legislative consent procedure is being used as a way of stopping the Scottish Parliament taking decisions. I am convinced that the new process will result in a clearer, better and more understandable devolution.
What we have known as the Sewel convention has often been controversial and the use of Sewel motions has often been criticised and been the subject of much media coverage—although the press gallery is not exactly packed this afternoon. However, the Procedures Committee's inquiry into the issue has resulted in proposals that will undoubtedly improve the operation of the convention and it provides some helpful perspective on the debates about its operation thus far.
Lord Sewel himself has said that the convention has been used more than had been envisaged. The fact is that, as Henry McLeish told the committee, no one could be sure exactly how the process would work once the Parliament was established. That is why it is right that we should introduce reforms to the convention to improve the way in which it works. However, I argue that the inquiry received evidence that the convention had worked well in the past and that the fact that it might have been used more often than had been envisaged had to be put into perspective. Dr Paul Cairney pointed out to us that, in many cases, Sewel motions had been used to deal with relatively minor issues.
It is important to acknowledge that if Parliament agrees that it is desirable to have legislation that will apply UK-wide and be implemented UK-wide at the same time, with the right kind of scrutiny, application of the convention can be appropriate, even on what might be seen as an important issue—although, of course, the presumption should usually be for our own legislative process to be used. It is also important to note that, as other members have mentioned, the inquiry has established the principle that the use of the convention can in no way be interpreted as the Parliament handing powers on. In fact, the use of the convention establishes our right to legislate on an issue. In such cases, Westminster is given the right to legislate on an issue only once. The Scottish Parliament retains the power to make different laws on the same subject whenever it chooses.
Some of the criticism of the convention has arisen from the way in which it has operated in the past. Although the committee heard that there have been improvements in its operation in recent years, there is no doubt that further development of the system will help to instil greater confidence in it. The committee agreed that it was vital for the Executive to flag up to Parliament as soon as possible when it intends to use the convention. There have already been improvements in that regard. Anne McGuire gave useful and encouraging evidence about the early contact between the Executive and Westminster departments on planned legislation that could result in the convention being used. Recently, an inspired parliamentary question that was asked at the time of the Queen's speech indicated when the Executive intended to use the convention. We believe that that information should be put in a letter to all members.
In addition, we want greater emphasis to be placed on the Executive memorandums, which should be formal parliamentary documents that are laid within two weeks of a bill's introduction. The key issue is that the Parliament is given adequate opportunity to consider and discuss a measure. That is why the committee recommends that when the convention is to be applied, that is flagged up as soon as possible to the relevant lead committee, which should publish its report five days before any debate on the motion. The inquiry frequently highlighted the need for adequate time both to debate such motions and for scrutiny in general, so the report contains recommendations that motions should be debated by the Parliament and that the Parliamentary Bureau should pay heed to the committee reports when deciding how much time to allocate to those debates.
Finally, it is important to note that, through the changes that we recommend, we are seeking to embed some of what is now protocol in the Parliament's standing orders because, in future, more than protocol and convention might be required to ensure that the vital relationship between our two Parliaments can be managed effectively. It is important that this crucial legislative process is improved and that there is greater confidence in it. By the implementation of the committee's recommendations, I am confident that that will be achieved, and I commend them and the committee's report to Parliament.
Many of us must often ponder on what the public make of some of our exchanges in this chamber—particularly our sometimes heated exchanges about Sewel motions. How accessible, or otherwise, is that topic to people who wonder what we are doing on their behalf?
The truth is that procedures matter. They matter because of what they deliver at the end of the day. Over the years I have been vexed that we have lost sight of that. One reason I am enthusiastic about the Procedures Committee's report is that it could lead us to a watershed in this Parliament. To use a phrase that Richard Baker has used, the report could bring a sense of perspective back into the debate, and it could allow us to focus on what really matters—what we deliver for people.
I will make a wee confession: I moved the first ever Sewel motion in this Parliament. I do not know whether members feel that I set a good or a bad precedent. However, I recall that when we were considering how the new mechanism would work, we thought carefully about whether it was the right way to get results. In that particular case, the issue was the creation of a food standards agency for Scotland.
We should continually focus on finding the best way to get the right results for Scotland. The mechanism—whether it is called the Sewel mechanism or whether it is rechristened—is undoubtedly an effective and pragmatic way of getting the right results. However, everyone has acknowledged the need to improve the procedures.
I accept that the details are technical and quite impenetrable, but the specific recommendations of the Procedures Committee will bring about practical improvements to provide a framework and remove some of the ad-hockery in the way in which proposals are considered. That can only be a good thing.
The report that we are debating today represents a practical and pragmatic approach to further developing and improving the procedures of this Parliament. I hope that we can continue to build on that.
Since devolution, we have talked an awful lot about our processes and procedures. It is vital that we continue to do so. We need good processes and procedures if we are to make good decisions. However, let us never make the mistake of confusing means and ends. Good procedures are a means to an end; they are not an end in themselves. The recommendations in the Procedures Committee's report give us an opportunity to achieve better results and outcomes in future. When we achieve them, I hope that we will continue to show that devolution can and does work well and that we are making the very best of our strong constitutional settlement, which the vast majority of Scots supported.
I apologise to the chamber for missing the start of the debate; I was on business for the Parliament, meeting a delegation from the National Assembly of the Republic of Serbia. I apologise for missing most of Donald Gorrie's excellent—I am sure—opening remarks.
I was going to say that this is a bit of a Procedures Committee old boys club, but I should not use sexist language; I should call it an old bores club. Many former members of the committee have contributed to the debate. I should perhaps thank Susan Deacon in particular, because she has never been a member of the Procedures Committee in—
I must correct you.
I mean in this session of Parliament.
I was the convener of the committee until September, so I was convener during most of the inquiry that led to the report that we are discussing today. I want to take this opportunity to thank my committee colleagues—especially my deputy convener Karen Gillon. I also thank the clerks—Andrew Mylne and Jane McEwan in particular, who led the clerking team. I thank them not only for their work on today's report but for their work throughout my time as convener. I greatly appreciated it.
When we started work on the report, a number of myths about Sewel motions persisted. The biggest was the idea that, when agreeing to a Sewel motion, the Scottish Parliament was somehow giving away power to Westminster. That has never been the case. This Parliament has always had the power to bring Sewelled issues back here and to amend legislation if it did not think that what Westminster had done was right or if it felt that the legislation required a change.
The vast majority of Sewel motions have concerned minor changes. For technical reasons, it has been sensible to deal with them as part of legislation that was going through Westminster in any case. More important, they often give additional powers to the Scottish Parliament by giving Scottish ministers additional executive powers. One very controversial example was the Gambling Bill, which although it legislated on a 100 per cent reserved matter, gave Scottish ministers the power to be involved in the process. Such a move, which should have been welcomed, could have been achieved only through the Sewel convention. However, some MSPs vehemently opposed the measure because they wanted to talk about the policy instead of the reality of the matter.
I do not agree with the claim that Sewel motions allow the Scottish Executive or the Parliament to run away from legislation. For example, the Executive did not run away from the legislation on civil partnerships; after all, the Scottish Parliament alone could not have delivered the Civil Partnerships Bill, which was hybrid legislation, in that it had to include provisions on matters that were completely reserved to Westminster. The bill had to be achieved either jointly or through a Sewel motion, and we took the right course to get the legislation on to the statute book. I am delighted to have received invitations to civil partnership ceremonies in December; those ceremonies would not have happened if the Scottish Parliament had not agreed to the Sewel motion.
The minister referred to timetabling matters. In its consideration of the timetable set out in the draft standing orders that I hope will be approved today, the committee proceeded on the basis that, in the majority of cases, the Executive will have discussed in advance the content of the UK legislation with the UK Government and will know what is likely to come up. As a result, in most cases we should be able to issue within two weeks of the bill being tabled at Westminster a memorandum that contains the additional information that the committee recommended should be included. We accept that that might not happen in all circumstances, which is why the weasel word "normal" appears quite often in the draft standing orders. We simply want to establish a framework to allow the Parliament to scrutinise legislation properly.
I believe that the recommended procedure is a big improvement on the current Sewel process. Indeed, I hope that this is the last time that anyone in the chamber mentions the name "Sewel" and that we start to talk about legislative consent motions instead.
As the committee has pointed out, one problem with the current system is that it is largely invisible in the public record. Of course, that encapsulates one of the worst elements of the Westminster system. As a result, one benefit of the proposals is that the process will be made more open and that all the documents, particularly the Executive memorandums, will be made available as parliamentary papers and therefore will be much more readily available to the public.
One remaining problem is the lack of a signing-off process when a bill completes its passage through Westminster. Indeed, Lord Sewel himself suggested that such a process was needed. We should certainly consider the possibility of having separate commencement orders for any substantive matters that are covered in such legislation.
I can well understand why the committee decided not to recommend a second process that would begin when a bill had completed its passage through Westminster but before it had received royal assent. After all, that would require a change of procedure at Westminster and, quite frankly, that is not going to happen.
The minister herself alluded to the problem of a lack of a formal process at Westminster. However, changes to that system could be made; indeed, I noted the committee's reference to a joint statutory instrument committee involving either the House of Commons or the House of Lords—I am not sure which—and the National Assembly for Wales. I also thought that the suggestion that Westminster could possibly tag bills and flag up legislation that might have Sewel implications for Scotland was important. Indeed, such a move might be even more relevant if one or the other Tory leadership candidate—I cannot remember which—gets his way, because he wants all bills to be tagged according to members who are permitted to vote on them. The complexities of such a system with regard to votes at Westminster, whoever had the majority, would be quite interesting—although I notice that none of the Conservatives has stayed to hear out the debate.
I notice that the name "Sewel" has become not only an adjective, but a verb; indeed, Iain Smith has just used it in the past tense. I am going to split radically from my colleague Bruce McFee's position to say that I have sympathy with the committee's desire to do away with the name. Personally, I never thought that Lord Sewel's ministerial performance, when he dealt mostly with what is called ag and fish, merited the kind of immortality that we are in danger of giving him.
I believe that in matters of importance or substance, the Parliament should legislate to the full extent of its powers. The Scottish Parliament has different procedures for good reasons. We have an extended system of consultation and any substantial issue that we pass to Westminster will miss out on that system. This Parliament also has a different political balance from that which exists south of the border.
Susan Deacon made an interesting point about the best way to get the right results for Scotland, but the question implicit in that is: who decides whether we have the right results? She also talked about ends being more important than means. However, our ability to have the means here in Scotland was one of the main reasons for devolution, which is about the representatives of the people of Scotland making the decisions for Scotland. It is not just about what is said in a bill at the end of the day; it is about where the bill is decided and who decides it. Means are therefore very important.
I move rapidly to my conclusion. Sewel motions—or, to use the politically correct term, legislative consent motions—are a potential problem only if we are considering allowing substantive legislation in devolved areas to be made by Westminster. The rest of the time, they do not really matter. If ministers would sign up to avoiding situations in which Westminster decides substantive legislation in devolved areas, we would avoid most of the problems.
I suppose that it is conventional always to begin a closing speech by saying that the debate has been interesting and by congratulating all members on their constructive contributions. It might be impolite to say so, but Bruce McFee was slightly off-beam and out of temper given the spirit of the debate. The debates that he mentioned are for another day—I will focus on the issues.
It is very pleasing to have a reasoned debate about Sewel motions. As several members have said, the inaccurate and misleading public discussions that have taken place are extraordinarily frustrating. It is therefore good to get the debate back into context.
Our efforts to improve the procedures and put into practice some of the things that the report recommends have borne fruit. Through management and through giving members the time to undertake their responsibilities properly, we now have a much improved set of procedures.
I do not think that I could ever buy into Mark Ballard's sweeping statement that the Executive is wrong and the committee is right.
It was Donald Gorrie's statement.
Well, I do not think that I can completely endorse it, although I quite like the phrase "evolution of devolution"; we might need to give that a bit more attention.
However, Mark Ballard made a point about consent and, whatever terminology we use, it is vitally important to emphasise the consent required from this Parliament. That is why I am interested in the change of name, which will be quite helpful.
Iain Smith can be quite intimidating at times, so if he is emphatic that we are not allowed to say the name "Sewel" any more, I will follow those instructions.
Alasdair Morgan is right that the means by which we do our business here has an impact on what we produce.
Finally, I pay tribute to the work of the Procedures Committee. It is a reflection on the structure of the Parliament that time was given to this issue. There were fairly constructive working relationships across the parties in making sure that we developed the right procedures for the Parliament. Perhaps, with one or two minor disagreements along the way, we now have something that we can work with and which will reassure the committees and members of the Parliament that we are working in their best interests and that we can deliver effective legislation at the end of the day.
I now call Karen Gillon to wind up the debate.
Aye, I get all the good jobs in this place.
I thank members for their contributions. The debate has been another lesson for us that we should try to ensure that debates on committee reports in the chamber are not debates among those who took part in compiling the report as members, or ex-members, of the committee in question. The Parliament needs to move away from that idea.
I welcome the majority of the comments that have been made. I do not intend to rehearse all the arguments, but I will pick up on some members' concerns.
The first of the Executive's concerns is about the need to lay a memorandum when a Westminster bill that contains relevant provisions reaches a certain stage, whether or not the Executive intends to lodge a Sewel motion. The issue was subject to some considerable debate at the committee, but on balance it was felt that it was important that the Parliament should be aware of any legislation that could impinge on its interests, because that would enable MSPs to make well-informed decisions in each case. I appreciate the Executive's concerns, but I emphasise that that additional obligation should arise only very rarely, as long as the United Kingdom Government and the Scottish Executive pursue broadly similar policies and maintain effective communications. However, there was a need for us, in developing our processes and procedures, to ensure that we future-proof our standing orders and our processes, no matter how far into the future we think that those changes may happen. I hope that that reassurance will provide the Executive with the safety net that it needs.
The other issue is that of including in the Sewel motion the date of introduction. I know that there have already been examples in the Parliament of bills that have been introduced and Sewelled but which have fallen, with the process starting again. The committee is saying that although it would like a new Sewel motion to be lodged for such bills, if a bill contains entirely the same provisions, the committee does not see the need for a new consultation on the new Sewel motion, as the consultation that took place on the previous Sewel motion should be sufficient for the committee that is considering the new Sewel motion. Of course, if the new bill raises new issues, the committee would like those to be considered.
Will the member comment on the new name—"legislative consent motions"? She has just spent the past few moments describing those motions as Sewel motions.
Although I do not want to predetermine the decision of the Parliament, I intend to comment on that.
I will give way in a minute.
I want to deal specifically with a comment that Bruce McFee made about the Procedures Committee's decision not to call a certain individual to give oral evidence. All committees make such decisions regularly. The convener made it clear in public session when that decision was made that individuals, including those who were not called to give oral evidence, were welcome to provide us with written evidence. As the individual in question decided not to provide the committee with written evidence, we could not consider his views. Written evidence is as valuable to a committee as oral evidence; we want to place that point on the record.
I move on to the comments that Alasdair Morgan made about Lord Sewel—well, the member might say that, but I could not possibly comment. On changing the name of Sewel motions, "legislative consent motions" is a more appropriate title. I was very keen that we move away from the name of an unelected member of the House of Lords to something that would make more sense to people who listen to and take part in the debates.
I would not have liked to be in the public gallery today. Those there have my sympathies: this has not been the most exciting debate. However, it is important that we give our legislative consent to the UK Parliament to legislate on our behalf. We should be clear about what we are doing. Changing the name of the Sewel convention may not change the attitude of our colleagues in the press, who, apart from our good friends in the Press Association, have once again failed to attend a debate in the Parliament—despite being so interested in stimulating this debate before the report was considered and produced.
I finish with a comment that picks up on something that my colleague Susan Deacon said. Paragraph 6 of the Procedures Committee's report talks about what we are doing. It says that, in debates under the convention,
"the main focus can be on where legitimate differences will always arise – about what are the best policies for Scotland, and about the most appropriate means of delivering them."
If the Parliament accepts the report and the standing orders that go with it, we will have provided a suitable mechanism through which we can give our legislative consent to Westminster when, as a Parliament, we vote, deeming that consent appropriate. That is our responsibility. I hope that members will support the motion at decision time.