Memorandum submitted by the Clerk of the
Procedures Committee, Scottish Parliament
THE SEWEL
CONVENTION: THE
WESTMINSTER PERSPECTIVE
Following your Committee's meeting in Edinburgh
on 7 March at which three members of the Procedures Committee
and I gave evidence, I am writing to offer additional written
evidence on one of the issues your Committee members raised—namely
the question of what happens if, after the Scottish Parliament
has given its consent by means of a resolution, the Westminster
Bill is then substantially amended during its passage.
Part of the answer (as Karen Gillon said in
her reply to Question 13) is that the Parliament always has the
option of passing its own legislation to repeal or amend the legislation
passed by Westminster (although admittedly this only applies where
the provisions in the Westminster Bill for which consent is given
are provisions dealing with a devolved matter, and not in relation
to provisions altering the legislative competence of the Parliament
or the executive competence of Scottish Ministers).
However, there is another factor that wasn't,
perhaps, brought out as clearly in our evidence as it might have
been. Under the new standing orders that now govern how the Parliament
deals with these matters, there are three separate circumstances
in which the Executive is required to lodge a "legislative
consent memorandum". In my answer to Question 2, I briefly
outlined what these three circumstances are:
"With government Bills, which can be assumed
to follow all the way through, the trigger is the introduction
of the Bill. With a private Member's Bill the trigger is the Bill
completing its first amending stage with the relevant provisions
intact. With Bills that only become relevant Bills by virtue of
amendments, the trigger is when those amendments are either lodged
or tabled, depending on whether they are government amendments".
This brief description of the last of these
circumstances, however, was incomplete in one respect. To quote
the relevant part of the Rule, a memorandum is required ".
. . in relation to any Bill that, by virtue of amendments:
(ii) tabled by a Minister of the Crown or
published with the name of a Minister of the Crown in support,
in either House, makes (or would make) relevant
provision for the first time or beyond the limits of any consent
previously given by the Parliament . . ." (Rule 9B.3.1(c)—emphasis
added).
By virtue of this wording, the Parliament's
own scrutiny procedure may be triggered more than once during
the passage of a particular Westminster Bill. Whether this happens
will depend on two separate factors—the terms in which the
original "legislative consent resolution" is expressed,
and the extent to which the relevant provisions of the Bill are
then amended. So if the resolution is in very broad terms, it
effectively gives Westminster authority to amend the relevant
provision to whatever extent it chooses without the Parliament's
consent coming into question. But if the resolution is more narrowly
framed, and if amendments to the relevant provisions that would
alter them substantially are tabled or agreed to, the Executive
could be required to lodge a fresh memorandum bringing this to
the Parliament's attention. It would then be for the Parliament
to decide whether to pass a second resolution extending its consent
to cover the amendments—or to withhold that further consent,
forcing the Government (under the terms of the Convention), to
withdraw or seek to overturn the amendments in question.
I trust that this clarification is of assistance
to your Committee in its deliberations.
Andrew Mylne
Clerk to the Committee
21 March 2006
|
