Select Committee on Procedure Fourth Report



6. Some of our witnesses suggested that the experience of the Parliament of Northern Ireland and the previous Northern Ireland Assembly might provide a guide for the rules of debate and questions after devolution.[6] We believe that the Stormont precedent is not helpful; it was established seventy years ago and related to different legislation. The Northern Ireland Assembly then did not debate matters reserved to the United Kingdom, but there will be no such restrictions now. As the Scottish Affairs Committee said in its Report on The Operation of Multi-Layer Democracy:

"It is expected that the House will no longer debate devolved matters.[7] The precedent of Stormont before direct rule is cited. Nonetheless, in a climate where the Scottish Parliament, like its analogues in Spain, debates reserved matters, and where the European Parliament regularly debates matters which are strictly outwith its remit, such a rule might prove neither acceptable nor enforceable".[8]

The Leader of the House felt that this was a matter which would require experience, and that Members might be ingenious in framing issues in ways which remained in order, and told us

"there will be ... a number of grey areas. I am reluctant to get drawn into the precise boundaries of the settlement and the judgments which might be made; indeed that will, happily for me, be a matter for the Chair".[9]

Mr Atkinson, who has had the experience of membership of the Chairmen's panel, thought that it would be impracticable for occupants of the Chair themselves to rule supplementary questions out of order on the grounds that they related to the responsibilities of the devolved legislatures.[10] It would be even harder for the Chair to prevent Members touching on devolved matters in the course of debate, and we believe it would be invidious to expect the Speaker and her colleagues to prevent every such reference, although they may wish to deprecate sustained discussion of devolved matters. Ministers may, of course, decline to respond substantively to points made in debate which relate to devolved matters, and Members may come to decide that it is not worthwhile to debate them. However, we draw attention to one implication of the existing rules. As Erskine May notes, matters for which the Government has no responsibility may not be raised on the adjournment;[11] this may rule out many debates on devolved matters. We discuss the precise definition of Ministerial responsibility more fully below, but we recommend that the same principles as govern the admissibility of Questions after devolution should govern the admissibility of daily adjournment debates. Since Members must give notice of the subjects of these debates, enforcement of this rule should present few difficulties for the Chair. At this stage, we do not recommend any change to the rules of order in debate, although we are likely to return to the matter in the light of experience.

Subjects of Questions

7. We do not believe, however, that it would be practicable to adopt the same evolutionary approach for questions. When the Government of Ireland Act 1920 was in force questions relating to matters transferred were disallowed. If this precedent were adopted, the scope for questions relating to Scotland would be very limited indeed,[12] although there would be greater opportunities for questions relating to Wales and Northern Ireland.[13] In this case, too, we believe the Stormont precedent is too restrictive.

8. Nonetheless, as the Clerk of the House said:

"It is central to the rules relating to Parliamentary Questions that Questions should relate to matters of ministerial responsibility (Erskine May's Parliamentary Practice, 22nd Edition, p 295). If no change were made in the range and detail of Questions tabled to Scottish, Welsh and Northern Ireland Ministers, the basic rules relating to Questions would be undermined. Moreover, if oral Questions were accepted on matters where responsibility lay entirely with the devolved legislatures, it would reduce the opportunities for Members to hold Ministers to account on matters for which they are responsible".[14]

The Ad Hoc Committee of the New Northern Ireland Assembly recommended that questions on transferred matters should be primarily for the Northern Ireland Assembly.[15] We recommend that, after devolution, the range and details of questions to be put to the Secretaries of State for Scotland and Wales should be reduced to matters relating to their Ministerial responsibilities. However, defining "ministerial responsibility" may not be straightforward.[16] As the Clerk of the House's memorandum demonstrates, the attitude of ministers to certain issues is not constant, and, where there is political interest, Ministers have answered on matters outside a strict interpretation of their remit, such as the rail industry.[17] It will, in many cases, be unclear where the limits of ministerial responsibility will lie: for example, much of the funding for research in higher education institutions will become the responsibility of the Scottish Executive, but xenotransplantation is reserved: where would a question about research into xenotransplantation in an institute funded by the executive fall? The matters for which the Secretary of State for Wales will be responsible will cover a wider range than those of the Secretary of State for Scotland, and given that Westminster will retain responsibility for primary legislation, the extent to which he remains responsible for a particular matter will clearly be open to varying interpretation.[18]

9. The matter could be dealt with without any procedural change. The Table Office would rely on its interpretation of the relevant legislation and on the pattern of answering established by Ministers to decide whether or not a question was admissible. We do not believe this is acceptable. Not only would there be great political pressure on the Table Office[19] but, as the Clerk of the House says:

"If the House were to await the pattern of answering emerging from the decisions of the territorial Secretaries of State about which Questions they will answer, the result might be unduly affected by current political factors and might lead to duplication of accountability at Westminster and the devolved legislatures".[20]

Alternatively, it could permit Ministers to impose an overly narrow interpretation of their responsibilities on the House. As Mr Martyn Jones warned if one just allows "things to evolve, there is always a danger that Government, not Parliament, will make the decisions at the end of the day".[21]

10. We believe that any reformulation of the rules about Questions must

  • recognise the fact of devolution, and limit the range of permissible questions accordingly;

  • provide guidance to Ministers about the matters the House will expect them to deal with;

  • avoid drawing Ministerial responsibility so tightly that questions about the relationship between the devolved legislatures and administrations and the United Kingdom government or parliament are ruled out of order.

To this end, we recommend the following resolution, drafted by the Clerk of the House.

"Subject always to the discretion of the Chair, and in addition to the established rules of order on the form and content of questions, questions may not be tabled on matters for which responsibility has been devolved by legislation to the Scottish Parliament, the Northern Ireland Assembly or the Welsh Assembly unless the question—

(a)  seeks information which the UK Government is empowered to require of the devolved executive, or

(b)  relates to matters which —

(i)    are included in legislative proposals introduced or to be introduced in the UK Parliament,

(ii)  are subject to a concordat or other instrument of liaison between the UK Government and the devolved executive, or

(iii)  UK Government ministers have taken an official interest in, or

(c)  presses for action by UK ministers in areas in which they retain administrative powers".

Time for oral questions

14. It may be that, after devolution, there will be fewer questions for certain Ministers to answer. We agree with the Government that the continuing responsibilities of the Secretary of State for Wales and the Secretary of State for Northern Ireland mean that there should be no hasty change in the frequency or duration of Questions.[22] However, 40 minutes every four weeks are allotted to Scotland; is this appropriate, given that the Scottish Parliament will have greater power than the Assemblies?[23] Two witnesses suggested it would no longer be appropriate to hold Scottish Questions at all, since questions about reserved matters would relate to the responsibilities of other Ministers, and should be dealt with by them directly.[24] But, as Mr Moore, of the Scottish Affairs Committee said, it would be very strange for this House to decide that there should be a Secretary of State who should not be subject to the scrutiny of the House.[25] In our opinion it would be premature to decide that a separate Question time for the Secretary of State for Scotland was no longer needed.

15. If Scottish Questions are retained, it is inevitable that sometimes matters will be raised in oral questions which relate to devolved matters; Members will, as many of our witnesses acknowledged, be ingenious in bringing questions within order,[26] even when they relate to devolved matters, and supplementary questions are, by their nature, hard to police.[27] The House must, however, acknowledge the fact of devolution. In addition to the change in the type of questions allowed, recommended above, we recommend that Scottish Questions be reduced to thirty minutes duration, but that they should continue to be taken once every four weeks, as now. In making this recommendation, we are mindful of the fact that it will be entirely in order for Scottish Members (as for any other Members) to table Questions about the operation of particular reserved matters in Scotland to the relevant departmental Minister.

6  Evidence p 101. Back
7  The Consequences of Devolution, The Hansard Society p 18. Back
8  Second Report of Session 1997-98, HC 460-I, paragraph 82. Back
9  Q 250, see also Q 230. Back
10  Q 28. Back
11  22nd Edition, p 327. Back
12  Government to use legislative powers; reserved matters; questions pressing; questions on matters under discussion. The nature of Welsh Devolution means a greater range of questions would be allowable. Back
13  Evidence p 88. Back
14  Evidence p 115. Back
15  The New Northern Ireland Assembly, Report of the Ad Hoc Committee on the Procedural Consequences of Devolution, paragraph 14. Back
16  Q 108. Back
17  Evidence p 116. Back
18  QQ 54, 86. Back
19  QQ 28-29. Back
20  Evidence p 117. Back
21  Q 320. Back
22  Q 54. Back
23  QQ 201, 253. Back
24  QQ 90, 103. 114. Back
25  Q 204. Back
26  Q 289-9. Back
27  QQ 27-28, 44. Back

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