Examination of Witnesses (Questions 80-99)
DAVID CAIRNS,
DR JIM
WILDGOOSE AND
MR GLENN
PRESTON
14 MARCH 2006
Q80 Chairman: Good afternoon. Minister,
can I welcome you and your officials to the Scottish Affairs Select
Committee meeting. We are very pleased that you have been able
to attend today to give evidence on our inquiry into The Sewel
Convention: the Westminster perspective. For the record, would
you like to introduce your team?
David Cairns: Thank you very much,
Chairman. I am very pleased to be here this afternoon to have
the opportunity to contribute to what I am sure will be an important
and significant report. I am accompanied by two officials. On
my left is Dr Jim Wildgoose who is the Head of Office at the Scotland
Office. You may remember him from previous appearances before
the Select Committee, such as your investigation into our Annual
Report. [13]On
my right is Glenn Preston, the Head of our Constitutional Policy
Branch at the Scotland Office and who knows more about Sewel motions
than is altogether healthy for a young man! I will make a very
brief opening statement, with your permission, Chairman. I have
said I am very pleased to be here, and I genuinely am, to have
an opportunity to discuss some of these important issues. I know
that you have already received our memorandum on those. As you
have seen in the memorandum, we have gone deliberately into some
detail about the machinery of government issues, since I know
the Committee is especially interested not in the Sewel Convention
per se but obviously on how the mechanisms work here from
a Westminster perspective. Some of the possible changes are rightly
a matter for Parliament itself but others, such as the improved
explanatory notes to bills, are for the Government to consider.
You will already know, Chairman, that we do believe there is room
for improvement in our drafting of explanatory notes. Devolution
is one of this Government's proudest achievements. The Sewel Convention
is an integral part of the devolution settlement. It recognises
and caters for the fundamental principle of the British constitution,
that the UK Parliament is sovereign, and adapts it to allow for
the reality of devolution. Finally, as my predecessor said to
the Scottish Parliament Procedures Committee, "The Convention
is not in any way a derogation of the competence of the Scottish
Parliament. The Government that created devolution is not about
to undermine it".
Q81 Chairman: Minister, can you tell
us what kind of channels of communication are there between the
two Governments and the two Parliaments? Is it department to department
or does the Leader of the House contact our minister for parliamentary
business?
David Cairns: I think there are
many channels of communication between the Government and the
Executive. There are department to department communications,
there are communications obviously involving the Scotland Office
and Margaret Curran, whom you have just spoken to, and there are
communications between the Leader of the House and Margaret Curran
also. The primary channels of communication are obviously department
to department because that is where the subject expertise is on
any piece of legislation that is coming up. Our focus, as a Government,
is on policy outcome and on what we are trying to achieve for
real people, communities and families and, therefore, it is where
the policy expertise resides that we must have that discussion.
The publishing of a Sewel motion or a memorandum is the beginning
of one process, but in some ways it is the end of another process
of a lot of discussion that takes place on the formation of policy
at official levels. I came into this job less than a year ago
and, speaking as somebody who had been a backbencher paying reasonably
close attention to this, I have been very impressed by the degree
of co-operation and interaction that takes place at official level.
At ministerial level, clearly there are also discussions on a
very regular basis and a very close working together as well.
Q82 Gordon Banks: Minister, you have
already mentioned some of the inter-governmental relationships
that go on. Are you of the opinion that they are working well?
Do you think there is some more scope for improvement? Have we
got Utopia?
David Cairns: We certainly do
not have Utopia, but I think we have got a mechanism that if it
did not exist, you would have to invent it. What was interesting
in reading the Scottish Parliament Procedure's Committee report
was at the beginning of that process there was some misunderstanding
and apprehension about what the Sewel Convention was, how it worked
and what it was used for. As they went through their inquiry they
understood that fundamentally we got it right, but that there
was room for improvement in terms of transparency, timing and
nomenclature. I think there was a sense the phrase, from their
point of view, "the Sewel motion" was perhaps imprecise
and so now they are referring to a "legislative consent motion".
From our point of view—we may come on to speak about this—I
certainly think there is room for greater awareness and understanding
among MPs, members of this House, as to what has triggered Sewel
and the extent to which Sewel applies. Obviously we will look
with interest on the recommendations of this Committee and this
report. Certainly we are not in Utopia but if it did not exist
we would have to invent something quite like this.
Q83 Gordon Banks: We touched on inter-governmental
relationships but what about inter-parliamentary relationships?
Would you be happier with a greater deal of co-operation between
the Westminster and Holyrood Parliaments?
David Cairns: Ultimately how the
Parliaments relate to one another is an issue for the Parliaments.
It is not really for the Government to tell the Parliaments as
such how they should relate to one another, but in the process
of greater awareness and transparency there are some recommendations
in the Clerk to the House of Commons' memorandum[14]
to your investigation which talks about the way in which this
might happen between Presiding Officer, Speaker and Lord Chancellor,
not that that is an issue for them but anything that would, from
that point of view, increase transparency and awareness would
obviously be welcome.
Q84 Mr Walker: Minister, can you spice
this session up for us? There has been a bit of a love-in for
the last couple of weeks looking into Sewel motions. What we are
looking for is friction and stories of blood on the carpet between
this Parliament and the Scottish Parliament, perhaps when Scotland
has felt that England has, once again, been over-reaching itself
and sticking its nose into parts of their business it should not.
Are there any examples of that where you have had fevered telephone
conversations with your MSP compatriots?
David Cairns: I will tell you
if you promise not to tell anyone! Within Government—and
by that, I mean within the UK Government—and within Whitehall
and the formulation of any policy, there is clearly going to be
interaction between government departments. They have set different
priorities and want to achieve different aims and objectives.
There is always a creative discussion and dialogue, and the fact
is that the Scottish Executive ministers, in so far as issues
relate to Scotland, take part in that. In all seriousness, you
would not expect me to sit here and disclose that, but Scottish
Executive ministers play a full part in discussions on these issues,
whilst respecting the devolution divide which is a very important
point. As I said in my opening statement, we created devolution.
We believe it is for the Scottish Executive and Scottish Parliament
to legislate, as it sees fit, on the issues that have been devolved
to it and they are accountable to the people of Scotland in their
own elections for that; it is for us to legislate elsewhere. Where
there is clearly a commonality of interest and looking at the
issues where Sewel is appropriate, if you are looking to get a
common approach to something throughout the UK or—I do not
know whether this is something that Ms Curran went into—where
it is a question of an understanding and the policy objective
is the same, the bill we happen to have here prepared and ready
to go at Westminster is a good vehicle for that, but Scottish
Executive ministers obviously play a role in those types of discussions.
Q85 David Mundell: Yes, can I ask—
David Cairns: Is this about Moffat
Pond, because I have no views on Moffatt Pond, David.
Q86 David Mundell: You should be
for it, I am! What I want to ask you about, Minister, is the suggestion
that the procedures currently work because you have governments
of substantially the same political persuasion at both Holyrood
and Westminster. How robust do you feel current procedures are
if, without requiring to draw you into speculation, you do have
governments of a different political hue in each Parliament, and
how procedures would stand up to that?
David Cairns: I am aware that
this is a question that is often aired. I think it is important
to say that the Sewel Convention does not just exist on a nod
and a wink. There is a memorandum of understanding[15]
which is a publicly available document. There are devolution guidance
notes which are there and which are adhered to. There is custom
and precedent about how we go about these things, and we respect
that. It is not all done in some sort of informal way which is
a suggestion that is sometimes made. Ultimately, I think that
either Parliament would have to respect the will of the people
in the result of a particular election. Unless the will of the
people was to lurch violently in one direction or the other, and
given that parties which were hitherto opposed to devolution now
accept devolution and want to make it work, I think that a common
understanding of how these things would work in the best interests
of the people of Scotland would quickly become apparent. I do
not think the Scottish people would forgive people playing politics
on important policy issues because, as I say, we are talking about
the Sewel motions and mechanisms here but I am interested, as
I am sure you are too, more in the policy outcomes of these things
and what we are trying to achieve for people. As you say, it is
difficult to speculate entirely on what is going to happen in
the future but there is a memorandum of understanding and there
are devolution guidance notes, I think they are robust but I cannot
predict what the future will hold any more than you can.
Q87 David Mundell: No. You are satisfied
that the process is more than what might be called internal party
channels?
David Cairns: It is clearly not
internal party channels because many of the ministers who are
involved in these discussions are not in the same party. We have
regular discussions with ministers who are involved in these discussions
from other parties in the coalition in Scotland and the fact that
the devolution settlement and the Sewel motion are working, and
I believe working well in the context of a coalition in the Scottish
Executive, demonstrates that it is not all done through backdoor
channels within the parties.
Q88 Danny Alexander: You said then
what you are primarily concerned about is the outcome of policy,
of course that is right. What we are looking into here is not
the end but the means of the process and how we ensure proper
democratic scrutiny throughout the process. I am interested to
know your views about whether or not you think that the scrutiny
of Sewel motions at this end, at Westminster, is effective. We
heard a lot from Margaret Curran earlier about the way that Sewel
motions are dealt with and the Scottish Parliament was very full
of it, but in their report the Procedures Committee made a number
of recommendations about how our procedure might be changed at
Westminster to improve scrutiny. For example they suggested tagging
relevant bills in parliamentary documents, mentioning any Sewel
implications in explanatory notes and the need for the Scottish
Parliament's Presiding Officer to send copies of any legislative
consent resolution—as they call it now—to the Speaker
and to the Lord Chancellor. I suppose there are two questions:
are you satisfied the scrutiny process at this end is working
well at the moment, and what is your reaction to the various suggestions
made by the Procedure Committee?
David Cairns: If I can take them
in reverse order. I am very content with the second question.
I think that having an Explanatory Memorandum published at the
same time as a Bill is published, which clearly indicates the
areas where Sewel will apply, is a good thing. It helps transparency
and it helps to focus people's attention on that. The difficulty
with publishing the legislative consent memorandum at that time
is it might not have been passed yet, because obviously there
is a process and we would want the Sewel motion in the Scottish
Parliament passed at some stage during the first House passage
of the Bill here. There is some thinking, maybe, to be done about
what appears on the Order Paper, for example at the Second Reading
of a Bill which we know are triggers. I think that is something
we can very constructively continue to have a think about and
I would be genuinely interested to see what the Committee's views
on that are. On the first question, it is not really for this
House to scrutinise Sewel motions as such, because what this House
does is scrutinise the legislation. The Sewel motion is whether
or not the Scottish Parliament is consenting for legislation here
which covers devolved issues which should apply across the UK.
It is up to us to get the legislation right. I would not favour
a parallel process where we are scrutinising the Sewel bit of
it, if for no other reason than very often the bit that has been
Sewel-ed is often very small and very technical, sometimes it
is not but very often very small and technical. I think our job
at Westminster, as a government, is to get the legislation right.
The job of backbenchers is to hold the Government to account and
make sure the legislation is right. The job of the Scottish Executive
is to decide whether or not it is going to allow Westminster to
legislate on a devolved area on this particular occasion. It is
the job of MSPs, as part of their procedures, to scrutinise whether
or not that is the right thing to do. I think we have got different
roles here. I do not favour blurring the lines of accountability
in all of this.
Q89 Danny Alexander: Except that
there are clearly different responsibilities, of course there
are. May I ask the question this way round then: you say it is
not for us to scrutinise the Sewel motion, it should be scrutinising
the legislation. Surely the application of a Sewel motion changes,
no matter in how small a way, the application of legislation.
Is there not an issue about when the Sewel motion applies? Margaret
Curran was saying to us earlier that they try to work towards
a basis of ensuring that the Sewel motion is passed by the Scottish
Parliament before the last amending stage in the first House in
which the Bill is proceeding.
David Cairns: Yes.
Q90 Danny Alexander: That would imply
that if a Bill starts in the Commons, the Sewel motion might not
come through until the report stage.
David Cairns: Yes.
Q91 Danny Alexander: Then it could
be scrutinised at report stage and then it would be left to the
Lords to give it full scrutiny. Do you think that is adequate
in terms of the role of backbenchers to scrutinise the legislation
and hold the Executive to account?
David Cairns: I come back to the
point I made earlier, it is the role of this Parliament to scrutinise
the legislation that the Government puts before this Parliament.
In a sense that applies irrespective of whether or not there is
a Sewel motion. The reason why it has to be given specific scrutiny
in the Scottish Parliament is because they are not scrutinising
the legislation in the round, they are only trying to work out
whether or not this particular bit of the legislation should apply
in Scotland and, if so, are there no other ways of doing it. They
will specifically look at the Sewel motion which covers the extent
to which any particular measure is going to apply in Scotland.
I do not think it changes my fundamental point that it is our
job as government to get the legislation right and the job of
the backbenchers here to make sure that we are held accountable
and we have the legislation right as well. The knowledge that
a part of this will be applicable in Scotland is something which
certainly does affect how, as an MP, you feel about this legislation.
I do not think there is any additional procedural mechanism for
reflecting that.
Danny Alexander: As a Scottish MP, it
might well influence the extent to which a Scottish MP—I
am thinking for example of MPs in the Scottish National Party
who, as a rule, do not take part in debates on matters which only
apply to England and Wales, that is a matter for their party policy.
Mr McGovern: It is not true.
Q92 Danny Alexander: Sometimes they
do. In terms of the role of Scottish MPs, scrutinising this legislation,
possibly perhaps being involved in a committee appointed through
various channels and the knowledge that a Sewel motion applies
to a piece of legislation and therefore applies to Scotland—when
it initially started this process it was not clear it was going
to apply to Scotland—does that not have implications about
when it is in the best interest of backbenchers to know about
the Sewel motion so that they can give appropriate scrutiny throughout
the process in this House?
David Cairns: Yes, and that is
why I think it is important to get right the Explanatory Notes
published at the time the Bill is published, which would indicate
the area that would be covered by a Sewel motion. I would concede
here we do not always get that right. There are some very good
examples: the Equality Act, which has just gone through, is a
very good example of where it was listed and how it would apply;
in others there has just been either inadequate information or
inconsistent information. I think one of the things we have given
an undertaking to in our memorandum is to do that at an early
stage, so that when any MP (Scottish or otherwise) says, "Here
is a piece of legislation, I wonder what it is about?", flicks
through the Explanatory Notes and sees a chunk of things about
Sewel. What I am saying is at that stage it is not possible to
say "This has been agreed by the Scottish Parliament",
because they are working to their own timetable and I do not think
it could be made any tighter really than it is, although that
is a matter for Ms Curran. We want to give out the most information
that we can give out at the earliest possible stage—I agree
with you to that extent—but what I do not think it is possible
to do at that stage is to say these things have been agreed because
it is not impossible that the Scottish Parliament might withhold
its consent, and then the measures would have to be withdrawn
from the bill during its passage. I understand the spirit of what
you are saying; I am not entirely sure there is a foolproof mechanism
for delivering it.
Q93 Gordon Banks: A very quick point
to try and tie this up. Minister, would you not agree that if
a Sewel motion was notified at the appropriate point in time,
early on in the process, it would not give single scrutiny or
double scrutiny because of the other place, it would give triple
scrutiny to that piece of legislation because of the scrutiny
that happens in the House of Commons and House of Lords and also
the discussion of the relevant part of Sewel in Holyrood?
David Cairns: Yes, I think that
is true. I come back to the point I made earlier—I think
it is important—it is our job, as Government, to get the
legislation right, irrespective of the Territorial Extent of it,
and to make sure that if there are issues of devolution that they
have been resolved. If there are issues, even where the policy
is reserved, but there is a different application because of Scots
law in a particular area is different, we have to get all of that
right. I do not think the question is one of inadequate scrutiny
but of transparency and awareness, and I concede that there is
an inconsistency at the moment in making people aware of where
Sewel applies and the extent to which it applies. That is something
we need to work at.
Gordon Banks: I mentioned the scrutiny
because that was specifically the avenue that Danny was going
down. I just feel that there is a way at an early stage to increase
the scrutiny of the legislation and be a positive sign at that
stage.
Q94 Mr McGovern: Danny just pointed
out that the SNP vote when they choose to vote or choose not to
vote. Recently they voted on changing the name of the Welsh Assembly;
what that had to do with Scotland, I am not entirely sure. Minister,
are you satisfied that adequate procedures and measures are in
place to alert the Scottish Parliament and Executive when a Private
Member's Bill here touches on devolved matters?
David Cairns: I read with interest
the Clerk of the House's view on that; he has quite a long passage
in his memorandum to you on Private Members' Bills. Essentially,
the Government's position is quite clear on this: it is up to
private Members to bring forward whatever they want to in a Private
Member's Bill, it is not up to the Government to tell them what
they should do. The Government is very clear that we will not
support any Private Member's Bill which triggers Sewel unless
all of the other stages have been gone through in relation to
getting the consent of the Scottish Parliament. It is not up to
the Government to tell private Members how they should go about
introducing their own legislation. I was fortunate to come number
two in the private Member's ballot a few years ago and I introduced
a Bill, which applied only in Scotland; although it was entirely
reserved, it was to do with employment. At that stage, I had to
make sure that there were not any devolution aspects to this,
and I did, and I was quite clear; it was a very clear-cut case.
It is up to any Member who wishes to bring forward legislation
to take those steps, but the view of the Government is clear and,
to the extent that it is a matter for the Government, the Government
will not support legislation that involves this House legislating
in private legislation like that on a devolved subject which does
not have the consent of the Scottish Parliament.
Q95 David Mundell: In your memorandum,
you say that the Government "requires Bill teams to include
in the Territorial Extent section of a Bill's Explanatory Notes
a description of how a Bill applies to Scotland and whether or
not it triggers the Sewel Convention". Are you willing to
impose a standard form of wording for Territorial Extent in the
Explanatory Notes, as it has been suggested they do tend to vary
in quality?
David Cairns: I think that is
the point I have been making, Mr Mundell. I think there is an
inconsistency there. Certainly I think that we need to look at
not necessarily a standard form of wording but certain bases it
needs to cover. I think we need to look at where it has been done
very well in something like the Equality Bill and say what are
the elements here that allow people to understand where Sewel
applies and the extent to which it applies. We are very open to
improving that aspect of things, yes.
Q96 David Mundell: Should the Committee
decide to recommend the full recommendations of the Scottish Parliament
Procedures Committee be implemented here at Westminster, would
that give you any specific concerns?
David Cairns: There is an interesting
mix in the Scottish Parliament Procedures Committee's report of
their own recommendations where they say, "We think this
should be done" but they also report on other people's recommendations.
I would not give any blanket assertion that would allow somebody
to slip in a recommendation that came from an academic or someone
that was not one of their recommendations. As far as I am aware,
they have got a two or three specific recommendations. This business
about trying to put something on the Order Paper saying that this
triggers Sewel, I am very attracted to that principle although
I think there are timing issues. The issues on the Explanatory
Notes that you just mentioned and getting copies of the legislative
consent resolutions put into our process somewhere or other in
the Library of the House of Commons, I think they are all very
sensible recommendations and I would not have any problem with
any of those. There are other recommendations in that report which
we made and you may wish to go on to that I would have more reservations
about. I have already addressed one in comments to Mr Alexander
about joint sitting of committees looking at different things,
I am not sure that adds an awful lot to anything. On those core
recommendations, I think we can certainly make those work.
Q97 David Mundell: Last week at our
evidence session in Edinburgh11[16]
one thing that was raised was alerting Scottish MPs to Sewel motions
or legislative consent motions having been passed, although there
was a recognition that Scottish MPs are not always on the relevant
committees, but clearly they have colleagues who are. If that
was a view, whose responsibility would you think that was, in
the sense of the Scotland Office or Scottish Parliament or parliamentary
authorities?
David Cairns: I have to be honest
with you, I am not particularly attracted to the notion that we
have to treat Scottish MPs differently to anybody else on this
issue. My view is that legislation before this House is considered
by every Member of this House on an equal footing and they should
have access to the same information as everybody else. I would
rather we did this through means that were universally available
to all Members of Parliament. I know that different parties take
different views on this issue, but my view is that getting it
right in the Explanatory Notes, finding some way of getting on
to the Order Paper at the earliest stage with the caveats that
I have mentioned, so everybody can see this, is the best way of
doing it. I am not generally in favour of having another layer
that only applies to Scottish MPs particularly. As you say they
might not be the ones on the standing committee stage of the Bill
where there was a Sewel motion on it.
Q98 Mr McGovern: Minister, presumably
though you would agree that ultimately it is a matter for the
House rather than the Government to decide?
David Cairns: All legislation
is ultimately a matter for the House because the Government puts
its legislative proposals to the House and hopes to win, and more
often than not does, occasionally does not. Ultimately, it is
a matter for the House to decide whether or not any legislation
is going to apply anywhere to anyone. That is as true of the bits
which will apply in Scotland. Just as the Scottish Parliament
has a vote on whether or not something will be Sewel-ed, and they
have got the final backstop on it, so the House has got the final
backstop on any legislation. The House can decide to pass or not
pass any legislation or amend it through its parliamentary process.
Ultimately, yes, you are right, it is a matter for the House.
Q99 Gordon Banks: Minister, you have
already answered a large chunk of the question I was going to
ask in answer to Mr Mundell's question about recommendations from
the Committee and from witnesses. Can I put a supplementary to
you? Can we assume that you would not be in favour of Holyrood
parliamentary committees attending and participating in the Scottish
Affairs Committee in Westminster?
David Cairns: I need to tease
out your question. If you are talking about joint investigations
between select committees and things, that is not really a matter
for the Government. If you are talking about MSPs involvement
in standing committees and scrutinising legislation, I think that
is a separate issue which I have views on. I think there are lines
of accountability, as I said in answer to an earlier question.
MSPs are accountable to the Executive of the Scottish Parliament,
MSPs are accountable to the electorate and that way we are accountable
as well here. I am accountable to Parliament and I must account
for our actions before committees such as this. I am not greatly
in favour of blurring these lines of accountability. For what
purpose? I am not really sure what the end purpose would be given,
as I have said, that it is the job of this House to scrutinise
legislation before this House, the job of the Scottish Parliament
to scrutinise Executive legislation and legislation that is emanating
from here which is the subject of the Sewel motion. I think there
are clear lines of accountability and I would not be in favour
of blurring them.
13 Scotland Office Annual Report 2005, HC 580-i. Back
14
See Ev 39. Back
15
Memorandum of Understanding and supplementary agreements between
the United Kingdom Government, Scottish Ministers and the Cabinet
of the National Assembly for Wales, CM 4444. Back
16
See Ev 1. Back
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