Examination of Witnesses (Questions 120-137)
MR ROGER
SANDS AND
MR FRANK
CRANMER
21 MARCH 2006
Q120 Chairman: Thank you very much. Some
people say that the arrangements between the Scottish Parliament
and the British Parliament or the British Government and the Scottish
Government are working well because we have the same political
persuasion in both parliaments. Are you satisfied that in future
if we had a government of one political party in London and another
in Scotland these arrangements would work satisfactorily?
Mr Sands: I think what would then
be put to the test is whether a convention is good enough. There
are various ways in which this restraint—which is what it
is—on the Parliament here at Westminster could have been
applied at the time the Scotland Act was being discussed. One,
the most extreme, is that it could have been written into the
Scotland Act itself; it could have been a legal constraint. The
second is that it could have been some sort of self restraint
imposed by a resolution or a Standing Order of the House, rather
in the way that the sub judice rule, which we now think
of as a rule, started off as a convention. It was rather like
the Sewel Convention; the House would not debate matters that
might prejudice cases coming before the courts. That eventually
was turned into a rule, as we know it now. That would have been
option number two. The third was the way the Government chose
to go, which was to make an undertaking, which was on the record,
and to then enshrine that undertaking in an inter-governmental
memorandum of understanding. My own guess, for what it is worth,
is that no incoming government here at Westminster would want
to abrogate the Convention, but what might happen is that it would
be used rather less frequently. I do not think that the procedures
that have grown up around the Convention would need to be changed.
I cannot see why that would be necessary.
Q121 Chairman: In your memorandum
you set out in detail the arrangements in place for dealing with
Private Members' Bills, which extend to Scotland, and leave wholly
or partly the devolved matters. Are these arrangements robust
enough to deal with UK and Scottish governments of different political
persuasions?
Mr Sands: I do not think the situation
would change. It would only be if a change of government provoked
political tensions and rows here about things like English votes
for English matters, which provoked back-benchers here at Westminster
to press the issue more than they tend to now in the sort of Private
Members' Bills they brought forward. Frank will correct me if
I am wrong, but I was in the Public Office Bill at the time of
devolution and we did have this discussion about how we would
approach back-benchers who came in with bills that appeared to
impinge on devolved matters; and we agreed we would draw it to
Members' attention. My experience was at that time that when we
did, for most Members it came as a surprise to them and they said,
"we must change that if it does apply to Scotland",
and they were generally very amenable. I do not know if that is
still the case.
Mr Cranmer: I think that people
do not want things to apply to Scotland inadvertently. I also
think—but this is only an impression—that generally
there are fewer Private Members' Bills that apply to Scotland
now than prior to devolution. People tend to think in terms of
legislating for England and Wales. There is another point that
the Committee might bear in mind, and that is that whatever the
political complexions of the governments in Edinburgh and in London,
the first hurdle for a Private Member's Bill is to get the approval
of the UK Government. David Cairns made this point when he came
before you last week. [11]If
it has not got the UK Government's backing, it is not going to
proceed any further anyway.
Q122 Mr McGovern: In its Report the Procedures
Committee made a number of suggestions of how Westminster procedure
might be changed, and in their view, at least, improved: for example,
"tagging" relevant Bills in parliamentary documents;
mentioning any Sewel implications in the explanatory notes; or
the Scottish Parliament's Presiding Officer might send copies
of any legislative consent resolution to Mr Speaker and the Lord
Chancellor. What are your views on these suggestions?
Mr Sands: I have dealt with this
to some extent in paragraphs 4 et seq of my memorandum.
I think that those recommendations are quite sensible, and I do
not perceive any difficulty for us in applying them. The one about
explanatory notes is a matter for government, and the Scotland
Office in its written evidence and David Cairns in oral evidence
last week acknowledged that the way explanatory notes currently
identify devolved provisions in Bills tends to be a bit patchy.
It could be standardised with advantage. When it is done well,
it is fine. There is a section in the explanatory notes on the
current Police and Justice Bill with some such heading as "Territorial
Extent", and it sets out provisions that may apply to Scotland
very clearly. If that practice were followed in a consistent way,
the House would have all the information it would reasonably want
about the Bill as introduced. What it does not have, which would
probably be an advantage to it, is any information about the Scottish
Parliament's input into this proceeding through the passing of
what they are now going to refer to as a Legislative Consent Motion.
The further recommendation of the Procedures Committee that these
motions when passed by the Scottish Parliament might be sent to
us and made available to Members I think is a good idea, and we
would be happy to co-operate with that. That would then go back
to the first bit that you mentioned, which is tagging. Obviously,
if we received from the Scottish Parliament a Sewel motion and
the accompanying memorandum to be deposited for the information
of Members, it would be a natural thing to do to flag that up
on the Order Paper, in the way we now draw attention to relevant
select committee reports and that kind of thing, when the bill
next came before the House. This would not be on introduction;
it would probably not be until Report stage and third reading.
Q123 Mr McGovern: I apologise if
there is an element of repetition in the questions—and I
think you have covered part of this in your previous answer. In
his evidence last week David Cairns did seem to be fairly relaxed
about the Procedure's Committee's suggestions. Are there any procedural
reasons why any, or all, of these suggestions could not be adopted
at Westminster?
Mr Sands: I do not think so—certainly
not the ones we have just discussed. I have expressed reservations,
as has the Scotland Office, about the proposal that the Speaker
might certify a bill as bringing in the Sewel Convention. I think
that this is better done by government because they are involved
in the process of preparing, considering and drafting bills, and
discussing them with departments and the Scottish Executive at
a far earlier stage than we see them. The process of identifying
provisions which might entrench on devolved responsibilities can
be, I imagine, in some cases quite a complicated exercise, which
we are not necessarily very well resourced to do. The Speaker
would need advice. We can provide it to the best of our ability,
but I suspect it would be much better done within government and
therefore reflected in the explanatory notes, rather in a Speaker's
certificate.
Q124 Ms Clark: Following on from
that, in your memorandum you counsel against a bill being certified
by the Speaker as one to which the Sewel Convention might apply.
Is the gist of your concern that, as the determination of whether
Sewel might apply is basically a political choice, and that the
Speaker should not be drawn into a possibly contentious area,
therefore it is Government Ministers should make such that decision?
Mr Sands: I do not think it would
be a politically sensitive determination for him. Whether a Bill
engages the Sewel Convention or not is essentially a legal issue,
not a political one. The Speaker does give certificates now in
a variety of situations, and he gives some certificates constrained
by the law. The most obvious case is when he has to certify various
matters for the purposes of the Parliament Act, a matter on which
Officers of the House advise him. Those matters, although sometimes
quite contentious in their consequences, are relatively cut and
dried and straightforward. It is a relatively straightforward
matter to determine whether the requirements of the Parliament
Act have been met or not. Determining in a bill of 500 clauses
or something like that whether there are a few bits in the schedules
that may apply to Scotland is a much more difficult exercise and
one which I would hesitate to advise the Speaker on. We would
have to, in effect, get our own advice from the department concerned;
and if that is the case, why should the department not do the
job of tagging in the explanatory notes?
Q125 Danny Alexander: In your memorandum
at paragraph 8 you give two options for alerting Members to the
fact that the Sewel Convention might apply or does apply to a
particular bill. Would you agree that the better option would
be a note on the Order Paper alerting Members that the Scottish
Parliament had agreed a Sewel motion in respect of a bill, and
therefore make the text of the resolution available in the Vote
Office, for example, rather than relying on Government departments
to do it, by making the text of the resolution available to the
House? Last week David Cairns said to us that so far communication
from the Government has been quite patchy in this matter. Would
it not be better to have the first option?
Mr Sands: I agree. I think it
would be more appropriate because the passing of a Sewel resolution
is a parliamentary action by the Scottish Parliament and therefore
it is right that that should be communicated parliament to parliament
and dealt with in that way. The bill on its introduction is a
Government Bill and at that stage is just that. That is why I
have expressed a preference for tagging a bill in the first instance
through the explanatory notes. However, once one has got to the
stage of a Sewel resolution I think it should be dealt with by
the Parliament.
Q126 Danny Alexander: Is there an
issue there with regard to the timing of a Sewel motion going
through the Scottish Parliament? You mentioned that often you
would not necessarily know here that a Sewel resolution had been
applied until Report stage of a Bill, but that may not necessarily
be an issue from the point of view of making clear on the Order
Paper that one has been applied. One of the concerns I raised
last week was whether that gives sufficient time for the House
here to be aware of the Sewel motion in the context of its debates
on the bill before it gets passed over to the House of Lords.
Mr Sands: I have learnt quite
a lot when drafting this paper and preparing for this meeting.
I had no real idea before that how the Scottish Parliament went
about agreeing Sewel motions. I gather that until this Report
from their Procedures Committee it had been a bit hit and miss,
and sometimes it was fairly casual. As I understand it now there
is going to be a regular procedure with time targets attached
to it, and that they will aim to have agreed a legislative consent
resolution in time before we reach the final amendment stage of
a bill in the first House, that is to say, for a bill introduced
in the House of Commons, Report stage; so that if for one reason
or another the Sewel motion were rejected, it would be possible
for amendments to be put down to strike out the offending parts
of our bill. If they keep to that timetable then it would be perfectly
feasible for us to follow the sort of procedure that is suggested
in their committee report and which I have just been discussing
with Mr McGovern.
Q127 Mr MacDougall: With respect
to formal communication between the two Parliaments, which do
you consider to be the better option: Presiding Officer to Speaker
and Lord Chancellor; or Clerk to Clerk?
Mr Sands: The Presiding Officer
route imparts a greater degree of formality, which might be seen
to be attractive, but it does inevitably impose an extra link
in the chain because the necessary information has got to be conveyed
to the right office at Edinburgh, and then when it gets down to
the Speaker's Office here it must be conveyed to Frank's office
for action to be taken. If time were tight, I suspect that in
the end it would be found it would be better to do it official
to official.
Q128 Gordon Banks: Danny has already
mentioned this, and we had this discussion—the suggestion
that most Scottish MPs are not aware when a Sewel is taking place.
Has anybody from this House made a complaint to you that they
were not aware of the Sewel motion being relevant and therefore
they felt that they may have been debarred from putting forward
amendments, or taking part in appropriate debate at the appropriate
level because of this lack of knowledge?
Mr Sands: Nobody has complained
to me, but I do not know if they have to the Public Bill Office.
Mr Cranmer: Nobody has complained
to my office, no.
Mr Sands: Ignorance is bliss!
Mr MacDougall: Would they know who to
complain to?
Q129 Danny Alexander: It has become
the practice of the Secretary of State after the Queen's Speech
to put down a written ministerial statement indicating which of
the likely future bills coming forward in that session might have
a Sewel motion attached to them or have implications under the
Sewel Convention. Do you think it would be advisable for that
list also to be published in Hansard or, as Gordon said,
for MPs to have as many opportunities to learn about it as possible;
or do you think the current procedure is quite sufficient?
Mr Sands: I fished out the statement
that was made in Hansard after this year's Queen's Speech,
and it literally has one sentence. "I have placed in the
Libraries of the House a note summarising the likely application
to Scotland of the bills announced on 17 May." There is nothing
other than that in Hansard and anyone who is interested
would have to go to the list in the Libraries. I do not know how
extensive the note that was placed in the Library was, but I would
have thought it was preferable in principle for it to appear in
full in Hansard. It is a matter of some constitutional
significance.
Q130 Danny Alexander: I think your
point about constitutional significance is correct. Without wishing
to draw artificial distinctions, there are particular issues for
Scottish MPs in relation to these matters. It may well be the
case that at the Queen's Speech stage, when this memorandum is
placed in the Library, having some debate in the Scottish Grand
Committee, for example, might be a way of alerting Scottish Members
to bills that are likely to have Sewel implications, legislative
consent implications, in the following session.
Mr Sands: The reservation I would
have about that is that it is fairly evident, reading the evidence
that you have received, that a lot of the provisions which engage
the Sewel Convention in the technical sense are pretty small beer,
to be honest; and any such debate would be hugely miscellaneous
because there would be a bit here, a bit there, and I cannot believe
that it would be a satisfactory Grand Committee type debate. Whether
there might be some other convention developed that the Secretary
of State has a briefing session with Scottish MPs, to alert them
at the same time as the statement comes out—I would have
thought that that sort of thing might be more productive.
Q131 Mr MacDougall: Even though the
Scotland Act appears to prevent a Scottish Parliament committee
meeting with a Westminster committee in Scotland, is there any
reason why a Standing Order similar to SO No.137A(3) could not
be used so that under our procedures they could meet in that way?
Mr Sands: The procedure that you
refer to relating to the Welsh Affairs Committee was devised a
year or so ago and I think it was called "Mutual Reciprocated
Enlargement"—the terrible term used to describe that
procedure. If we were to do it in the way that you have suggested,
Mr MacDougall, it could not be mutual and it could not be reciprocated.
From our point of view it would still be possible as long as the
MSPs who came down here to join a meeting were not deciding anything
on behalf of the House. If they were contributing to a discussion
and perhaps assisting in the taking of evidence, it would not
be a problem. When the Welsh Affairs Committee have done this
with committees of the National Assembly for Wales, they have
not produced joint reports; they have deliberated jointly and
taken evidence jointly, and then they have gone away and drawn
their own conclusions and made their own decisions separately.
As long as that dividing line is observed, we could do it.
Q132 Mr McGovern: In answer to John's
question you have said that it could happen, but again following
the example of joint working between committees in the National
Assembly for Wales and the Welsh Affairs Committee, do you consider
there to be merit in members of Holyrood's Parliamentary committees
being able to attend and participate in meetings of the Scottish
Affairs Committee?
Mr Sands: I notice that David
Cairns last week expressed a certain reservation about this. He
said that each institution ought to be accountable for the performance
of its own functions, and I have some sympathy with that. I am
not a great believer in bringing everything together into a great
amalgamated soup; but there can be specific issues where you can
detect a definite value that would be added by doing this. I think
for the consideration of a piece of draft legislation that was
going to have a major effect in Scotland but was essentially going
to proceed as Westminster legislation, I can imagine there might
be such value added; but as something to be done on a routine
basis, I would not advocate it myself. Here I have to say I am
perhaps stepping out of line!
Q133 Mr Walker: I think we are coming
to the nub of the debate here with this question. Do you consider
that the model of Standing Order No.137A could be extended beyond
Select Committees to permit MSPs to take part in a meeting of
the Scottish Grand Committee to discuss matters of mutual interest
or concern—for example the Report from the Arbuthnott Commission—perhaps
on similar lines to one of the proposals considered by the Modernisation
Committee about MEPs taking part in debates at Westminster?
Mr Sands: I do remember expressing
a view to the Leader of the House about that last matter; in fact
I may even have submitted a memorandum to the Modernisation Committee.
We could have MEPs here participating in a kind of European grand
committee, again as long as they are just contributing to the
discussion and not purporting to reach decisions on behalf of
the House of Commons, or participating in any decision-making
process. I have no doubt that we could devise a Standing Order
that would work, if that is what the House decided it wanted.
Q134 Mr Walker: I suppose it would
provide a useful opportunity for Members to meet their MEPs and
put a face to a name as well. That would be good. What is your
view on joint working of Westminster and Holyrood committees'
scrutiny of draft legislation affecting Scotland?
Mr Sands: I think I have already
given that. It is conceivable that there might be a piece of draft
legislation which had a large portion which engaged the Sewel
Convention and which Members here might feel they needed the input
of MSPs to reach a judgment about.
Q135 Ms Clark: You have given us
your views on joint working of Westminster and Holyrood committees
but as Scottish devolution beds down more fully do you expect
that there will need to be any other changes to parliamentary
procedure here at Westminster?
Mr Sands: No, I do not, to be
honest. I think it has worked with minimum of friction, and a
minimum of formality. I do not see any development on the horizon
in devolution that is likely to affect that, but I am not a magician
so my crystal ball may be inadequate.
Q136 Chairman: Mr Sands, we appreciate
that you cannot speak on behalf of the House of Lords, but we
have written to the Leader of the Lords to advise her of our inquiry,
but if we were to put to the Clerk of the Parliaments the same
questions that we have put to you, would it be reasonable to assume
that his responses would not be radically different from your
own?
Mr Sands: I have seen the letter
that Paul Hayter wrote to you on 27 February, Chairman, and I
think it is clear from that that they would not be radically different,
no.
Q137 Chairman: Mr Sands, Mr Cranmer,
thank you very much for your evidence this afternoon. We have
concluded our questions. Before I declare the meeting closed,
would you like to say anything on areas that we have not covered?
Mr Sands: No, Chairman, I do not
think so. It has been a pleasure to be here. Both of us as it
happens, more years ago than I care to remember, were clerks to
the Scottish Affairs Committee, in pre-devolution days when things
were rather different.
Chairman: Thank you very much for your
evidence.
11 See Ev 46. Back
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