RELATIONSHIPS BETWEEN WESTMINSTER AND DEVOLVED
LEGISLATURES
General
40. Many witnesses warned that it was premature to
be overly prescriptive about the nature of contact between Westminster
and the devolved legislatures. There were warnings that an elaborate
structure of liaison committees might act as a disincentive to
contact.[69]
The importance of personal contact was stressed, and it was suggested
that the first contact would undoubtedly be between Members for
Scotland, Wales or Northern Ireland and the Members of the devolved
legislatures.[70]
We strongly support such informal contact, and such contact between
individuals should raise no procedural problems. However, Members
should be aware that there may be problems in formal meetings
involving Committees of this House and those of the devolved legislatures
which will need careful consideration.
Relationships between Committees
41. Our witnesses hoped that there would be good
working relationships between the Select Committees of this House
and Committees of the devolved legislatures. The Scottish Affairs
Committee has said "we see no reason why [this Committee]
should not invite MSPs to sit jointly with it in London or Edinburgh".[71]
Mr Barry Jones MP, Chairman of the Welsh Grand Committee suggested
that the Committee might invite Members of the Assembly to sit
with it.[72]
The Northern Ireland Committee also hoped it would be possible
to hold joint meetings with colleagues from the Northern Ireland
Assembly, but Mr Brooke, its Chairman, warned:
"it would be important if you were setting up
anything of a joint nature that the ground rules were very clearly
established and you did not totally wing it. I can see some argument,
if I may say so, for at least guidance from your Committee as
to what might be a suitable vehicle because it will not only apply
to us and the Northern Ireland Assembly. It will presumably apply
to other Committees of the House working with committees in Wales
and Scotland as well".[73]
There are two issues involved in such co-operation;
the powers to exchange documents and the power to meet concurrently.
Exchange of documents
42. Select Committees (and the House as a whole)
currently enjoy two forms of legal privilege in respect of their
papers. The first is that once a Committee has officially taken
possession of a paper it becomes a "proceeding in Parliament".
This means that Article IX of the Bill of Rights protects it from
question in the courts; there can, for example, be no action against
the author of a briefing note prepared for and used by a Committee
(but not published), however defamatory such a note might be.
Committee papers "belong" to the Committee concerned,
and, in general, if a Committee wishes to disseminate papers to
Members or to other Committees they must be reported to the House,
which, in effect, asserts their status as "proceedings".
Certain Committees have power to communicate unreported documents
to one another, which gives them freedom to consult while retaining
some control over their papers.[74]
43. Article IX protects "proceedings in Parliament";
it does not protect the publication of such proceedings. That
protection is given by the Parliamentary Papers Act 1840 which
provides that civil or criminal proceedings in respect of any
"report, papers, votes or proceedings" published "by
or under the authority of either House of Parliament" shall
be stopped. Some publications, such as the Official Report, are
published "by authority"; most others are printed by
Order of the House. The printing Order is given in the Votes and
Proceedings by the words "to be printed" and each such
Order is numbered. We cannot offer a definitive interpretation
of the law, but it must be possible, or even likely, that sending
papers to the devolved legislatures would constitute their publication.
We consider that it should be possible for the House to give its
authority for such partial publication through a resolution empowering
Committees to send papers to the devolved legislatures and through
the necessary changes to Standing Orders. We recommend that
Select Committees appointed under public business Standing Orders
be given power to communicate documents to the devolved legislatures
or their committees. If a Committee wished to use such a power
it would need to make a formal Order that a paper, or class of
papers, be communicated to the body concerned, just as Committees
currently order exchanges of evidence with other Committees appointed
by the House.
Joint meetings
44. There would be no difficulty if a Select Committee
wished to hold informal meetings with a committee of the devolved
legislatures, or even if it wished to invite such a committee
to appear before it (or to accept an invitation to appear before
such a committee itself). The British-Irish Inter-Parliamentary
Body has operated informally without problems for almost nine
years.[75]
Informal joint meetings might appear very similar to existing
meetings. Consultation in private would cause no problems for
Westminster Select Committees. Public meetings could also be arranged
at which witnesses could be invited to appear and those who attended
would be examined. As long as any such informal meeting dealt
with witnesses who attended entirely voluntarily and as long as
Members realised that they were not necessarily protected by the
Bill of Rights, informal proceedings would be adequate. Indeed,
if a Westminster Committee and a Committee of the Scottish Parliament
or Welsh Assembly wished, they could informally consult on a form
of words for a report; it would then be open for each committee,
independently, to agree a report in those words, if it wished
to do so. The ground rules for such meetings would, at the outset,
be decided by the committees concerned, but we would expect that,
if such meetings were widely used, common practices would soon
emerge as experience was shared. There would be technical matters
to be dealt with, such as the division of the costs of any such
meeting, but these could be resolved.
45. It is, however, possible that there could be
problems if a Select Committee of the Commons attempted to place
its powers to order a witness to attend or to demand the production
of papers in the service of a meeting at which it sat together
with a Committee from a devolved legislature. In this case, the
co-operation would have to be formal and it is not clear what
legal constraints there would be on a such a "Joint Committee".
Joint Committees of Lords and Commons operate on the principle
that each House appoints its own Select Committee with powers
identical to that of the Select Committee appointed by the other;
the two Committees then join together.[76]
There are no legal questions raised by such a Joint Committee;
the Select Committees are given power by each House, and empowered
to report to each House.[77]
Their activities are clearly proceedings in Parliament and, as
such, cannot be questioned in the courts.[78]
46. In contrast, Committees of the delegated legislatures
ultimately owe their powers to statute, and disputes over the
nature and extent of their powers would clearly be justiciable.
Their powers are not as extensive as those of the Committees of
the United Kingdom Parliament. For example, a Select Committee's
powers to send for persons, papers and records extend throughout
the United Kingdom;[79]
the devolved legislatures have power to summon only in relation
to matters which have been devolved. (The Welsh Assembly may only
summon members or members of staff of specified bodies.) The protection
of free speech offered to Members by Article IX is absolute; members
of the devolved legislatures have protection from actions for
defamation, but only limited (and varying) protection from actions
for contempt of court, and no protection in respect of breaches
of injunctions or the official secrets act. It is easy to envisage
a situation in which a committee from a devolved legislature sitting
"jointly" with a Committee of the United Kingdom Parliament
could be accused of going beyond its remit. If such a meeting
had taken place without the authority of the House, there could
be questions about the legal position of Members of the Committee
from the United Kingdom Parliament and the status of the meeting
as "proceedings in Parliament" could be called into
question.
47. If there is a desire to hold formal joint meetings
it may be possible to find a solution to the problems they pose.
For example, in the 1930s a Select Committee appointed to join
with the Lords to consider Indian Constitutional Reform was given
power to "call into consultation representatives of the Indian
States and of British India".[80]
Those called into consultation were permitted to sit with the
Committee during the examination of witnesses, and to put questions,
through the Chairman, to those witnesses. The Minutes of Proceedings
and Minutes of Evidence show that such representatives put questions
directly to witnesses, although such questions were "subject
to the direction of the Chairman".[81]
Using this precedent as a model for future co-operation is likely
to be more satisfactory than using the analogy of a Joint Committee
alone, since it would avoid any legal problems caused by the differing
status of the Committees concerned. If this course is followed,
a Resolution of the House will be needed to authorise a Committee
to "call into consultation" its counterpart in a devolved
legislature. However, the devolved legislatures may not desire
such formal co-operation, and we are reluctant to proceed too
far along this road until we know their wishes.
48. This analysis has been based on Westminster powers
and customs; the devolved legislatures may wish to consider their
legal position in such circumstances. It is too early to produce
definitive proposals for joint meetings at which Committees might
exercise their powers under Standing Order, and we are likely
to report further on this matter if it appears necessary. In the
meantime Committees should not hold formal meetings
in conjunction with Members of the devolved legislatures without
the express authority of the House, and Members should
be aware that there is no guarantee that their words enjoy the
protection of Article IX of the Bill of Rights in any informal
joint meetings.
European Scrutiny
49. The Government has suggested that although the
United Kingdom Parliament will remain the primary body for the
scrutiny of European legislation, the European Scrutiny Committee
could develop relationships with Committees of the devolved legislatures.[82]
The Chairman of the European Scrutiny Committee indicated that
substantial progress[83]
was already being made at a staff level, and that further progress
depended on the views of the Committees of the devolved legislatures
themselves which, of course, cannot as yet be determined.[84]
We support the European Scrutiny Committee's readiness to work
with our colleagues in devolved legislatures, and believe it is
appropriate for the arrangements for such co-operation to be made
by the committees concerned. We will, however, keep a watching
brief on the development of these relationships as the devolution
process evolves.
69 Q 231. Back
70 Evidence
p 111. Back
71 HC
(1998-99) 460-I, paragraph 86. Back
72 Q
148. Back
73 Q
338. Back
74 Publication
of unreported papers without a Committee's permission is likely
to be considered a contempt of the House. Witnesses must even
obtain permission to publish their own memoranda. Back
75 QQ
344-5. Back
76 It
is possible for Commons Select Committees to be given power to
act independently of their Lords counterparts; thus the Select
Committee on Statutory Instruments reports on delegated legislation
(relating to financial matters) which is laid before the House
of Commons only. Back
77 Joint
Committee Reports are accordingly ordered to be printed by both
Lords and Commons. Back
78 There
have been Joint Committees of Committees of the Commonwealth Parliament
and State Parliament in Australia. The difficulties there are
less acute since both Commonwealth and state rest their privilege
on statute, and the powers of both are based on the privilege
of the United Kingdom Parliament, so there each part of such a
Joint Committee has similar powers and privileges. Back
79 They
do not, of course, extend to summoning other Members of Parliament,
or to demanding government papers. Back
80 CJ
(1932-33) 136. Similar powers were given to the Select Committee
on Boundaries of Boroughs in 1868 (CJ (123) 183). Back
81 This
appears to mean that the Chairman had a reserve power to rule
a question from a representative out of order. Back
82 HC
(1998-99) 148, Appendix 1, paragraph 3,. Back
83 Evidence
pp 141-142. Back
84 The
European Scrutiny Committee also expressed concern about sharing
documents; an explicit power for Select Committees to communicate
papers to the devolved legislatures, as recommended above, should
go some way to dealing with those concerns (Evidence, p 142). Back
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