Memorandum submitted to the Scottish Affairs
Committee by Barry K Winetrobe, Reader in Law, Napier University
SUMMARY
This inquiry provides an opportunity for the
House to complement the recent reforms of "Sewel" business
in the Scottish Parliament by improving the way it handles "Sewel
Bills". Some suggestions were made in Holyrood's Procedures
Committee report, and three categories of proposals are outlined
in this submission. Recognition of the distinctive nature of "Sewel
business" at Westminster, along these lines, would improve
the effective of parliamentary scrutiny of such legislative proposals,
and the quality of resulting legislation. It would also act as
an important and necessary instance of cross-parliamentary initiative
and action in the multi-layer governance system that devolution
has created.
SEWEL: AN
INTER-PARLIAMENTARY
ISSUE
1. With a background in public law, and
having worked for many years on parliamentary and constitutional
issues in the House of Commons Research Service and, through its
first year, in the Scottish Parliament Information Service, I
have been interested in, and written about, the Sewel Convention
over the last four years, and welcome this inquiry by your Committee.
Coming immediately after the major report by the Scottish Parliament's
Procedures Committee, [1]this
inquiry provides the House of Commons with a timely and necessary
opportunity for the two parliaments to coordinate and complement
their handling of "Sewel" business to the benefit of
both.
2. In my writing about the Sewel Convention,
[2]and
elsewhere, especially a commissioned paper for the House of Lords
Constitution Committee's inquiry into devolution a few years ago,
[3]I
have been concerned that, under devolution, relations between
the UK's parliaments and assemblies should be enhanced. The operation
of the Convention is an instance of devolution business which
formally was said to be a matter between the two parliaments,
but which, in practice, has been dominated and driven by the two
executives. This was criticised by the Constitution Committee,
[4]and
the Scottish Parliament's Procedures Committee concluded that
[5]
. . . the upshot has been that what was originally
envisaged as an inter-Parliamentary convention has emerged in
the form of an agreement and set of working practices within the
structures of government. Whatever practical advantages this has,
it has created the perception of an Executive-driven process in
which the Parliamentary role is secondary. Perhaps unfairly, this
has contributed to the suspicion and even hostility with which
the whole Sewel process has been regarded in some quarters. We
therefore believe it would now be in everyone's interests if the
Parliament as a whole was to assume a greater degree of control
and ownership over the process, including by embedding the main
elements of Sewel scrutiny into the standing orders.
3. Following the Procedures Committee report,
the Parliament has now, for the first time, embedded its "Sewel
business" in Standing Orders, which officially describes
it as "Legislative Consent" business. [6]The
Procedures Committee appreciated that it was limited in practice
in the extent to which it could comment upon, and suggest changes
in, Westminster's handling of Bills to which the Scottish Parliament
has given its "legislative consent" under the Sewel
Convention. However, as your Committee will be aware, its report
did examine this issue, [7]as
it regarded Sewel business as the Scottish Parliament's "principal
interface with the Westminster Parliament." [8]It
noted the examples in my evidence to it of recent occasions where
the House of Commons has been willing to shape its procedures
and practice to accommodate external parliaments and related governance
institutions, [9]and
offered, "in a spirit of inter-Parliamentary dialogue",
some suggestions for changes to "associated procedures in
Westminster".[10]
These would assist the aims of the reforms it proposed for Holyrood's
handling of Sewel business, such as "enhancing the opportunities
for scrutiny and increasing transparency", and, more generally
to replace current persistent misunderstandings and controversy
about the operation of the Sewel Convention with "a degree
of consensus and a shared understanding" of this important
parliamentary devolution mechanism. [11]
THE BENEFITS
OF RECIPROCAL
WESTMINSTER SEWEL
REFORM
4. The Procedures Committee inquiry received
evidence, not least from members and officials at Westminster,
of the scrutiny at Westminster of what may be for convenience
called "Sewel Bills". The Clerks of the two Houses recognised
that the Convention "has little effect on procedure in either
House", and the fact that a Bill before Westminster has been
the subject of a "Sewel consent" "is not communicated
formally to either House." [12]Some
Westminster witnesses supported the proposals for change in the
two Houses which the Committee made; others even went further,
suggesting forms of joint scrutiny by Westminster and Holyrood.
5. The current inadequacy of Westminster's
treatment of "Sewel Bills" was tellingly illustrated
by the evidence on 19 October to your Committee of the Scottish
Secretary, Alistair Darling. Referring to the Scottish Parliament's
"Sewel Motion" consent mechanism, as applied to any
particular Bill being considered at Westminster, he said that
"my guess is Members of this Parliament are probably not
aware of it, either (a) that there is one, or (b) what happened
to it." [13]Presumably
it was the combination of such comments by Mr Darling, and the
publication of Holyrood's Procedures Committee report, which contributed
to your Committee's decision shortly after to hold this present
inquiry. In addition, this inquiry can fill in one gap left by
the House's Procedure Committee's review of the procedural consequences
of devolution, promised in its May 1999 report, [14]not
having yet taken place. [15]
6. Your inquiry provides the opportunity
for the House of Commons[16]
to recognise that a "Sewel Bill", a concept which arose
out of the devolution scheme enacted by the UK Parliament, is,
like exclusively Scottish Bills, a distinctive type of parliamentary
business, which should require some degree of distinctive parliamentary
procedure and practice. [17]
7. Appropriate reform of the handling of
"Sewel Bills" at Westminster, complementing recent changes
at Holyrood, would bring direct benefits:
— improved parliamentary scrutiny of
a category of legislation, especially (but not solely) by Members
representing that part of the UK affected by the unique "Sewel"
aspect of these Bills;
— improved quality of legislation subject
to that enhanced scrutiny;
— greater acceptance, especially in
Scotland, that the legislation, and the scrutiny to which it has
been subjected at Westminster, more fully takes account of the
wishes, needs and interests of Scotland;
— removal of much of the "constitutional"
argument since 1999 about the "Sewel Convention", based
on deficiencies in legislative scrutiny;
— enhanced cross-parliamentary co-operation
between Westminster and Holyrood, which could serve as a template
for such collaboration in other appropriate areas, and
— recognition of the legitimate and
vital role of Scottish MPs at Westminster in participating in
the legislative process on Sewel Bills.
SOME OPTIONS
FOR CHANGES
TO WESTMINSTER
HANDLING OF
"SEWEL BILLS"
8. Any proposals would require careful consideration,
and would have to be procedurally effective and robust. They would
also have to take account of the many different ways and times
in the legislative (or pre-legislative) process that a "Sewel
context" for a Bill or proposed Bill can arise. Whether and
how any such changes can be implemented, in terms of specific
procedures and practices, is essentially a matter for Members
and officials of the House itself. From my perspective, there
seem to be several levels of possible reforms which could be considered,
ranging from the straightforward which can be accommodated within
existing procedures and practices, to those which would require
significant changes to existing arrangements at Westminster (and
possibly also at Holyrood, and within the two governments).
9. Those which could be described as a minimalist
approach could include those which have been suggested during
Holyrood's Procedures Committee inquiry, and elsewhere:
— "tagging" of relevant Bills,
by a form of Speaker certification (similar to that for exclusively
Scottish Bills), and noting of relevant Scottish Parliament reports
and debates in "Order Papers", Official Reports etc
of the two Houses;
— "requiring" improved Explanatory
Notes to Bills, setting out their "Sewel" context, including
a summary of the relevant Holyrood scrutiny of the relevant Legislative
Consent Motion;
— routine explanation and analysis
in relevant House of Commons Research Papers and Standard Notes
of the "Sewel context" of the provisions of relevant
Bills, including a summary of the relevant Holyrood scrutiny of
the relevant Legislative Consent Motion;
— formal means (a) of receiving the
Scottish Parliament's view on a "Sewel Bill" (eg whether
or not Consent has been given, and the form of any such Consent),
and (b) for the transmission to the Parliament of relevant developments
during the Westminster legislative process, directly and officially,
on a parliament-to-parliament basis.
10. Those which would require some adjustment
of existing procedures and practices could include:
— representation on relevant Standing
Committees of Members representing Scottish seats, as appropriate
to the degree to which a Bill contains "Sewel" provisions
and, where possible, to reflect party balance and opinion on these
provisions within Scotland as well as in the House;
— reference of Bills to more than one
Standing Committee, to enable "Sewel provisions" to
be considered by a form of "Scottish Standing Committee";
— arrangements made to facilitate the
transmission of the views of interested Scottish groups and individuals
on these provisions, at appropriate legislative or pre-legislative
stages (such as select committee consideration of draft legislation
with actual or potential "Sewel provisions"), including
the holding of relevant sittings within Scotland;
— creation of forms of joint scrutiny
of relevant legislative proposals by committees or members of
the House of Commons and the Scottish Parliament, perhaps based
on the existing arrangements devised recently for joint activities
with the National Assembly for Wales; [18]by
variation of the proposed arrangements for participation by EU
Commissioners and MEPs to participate in EU scrutiny, or by appropriate
use of special standing committees.
11. Those which would require more fundamental
change in current Westminster arrangements would be those which,
in effect, created what the Richard Commission described in the
Welsh devolution context, as a "new legislative partnership,"
[19]where
in the absence of a fully integrated cross-parliamentary legislative
scrutiny process for "Sewel Bills", there could be a
substantial degree of "co-legislating" for such legislative
proposals. The recent history of Welsh devolution has demonstrated
how difficult such co-legislating can be in practice, under that
unique constitutional system. However, the proposed changes within,
and built upon, the provisions of the current Government of Wales
Bill, may provide some guidance, taking account of the differences
in legislative power between Holyrood and the Assembly.
12. Westminster already co-legislates in
the area, for example, of delegated legislation under the Scotland
Act 1998 itself which is subject to parliamentary procedure in
Westminster and Holyrood. [20]Thus
the idea of shared procedure for "Sewel" legislation
would not be unprecedented, even though, strictly speaking, what
the Scottish Parliament does when granting its "legislative
consent" is not a parliamentary legislative process as commonly
understood.
13. While any arrangements must, of course,
be designed to suit its own particular circumstances (such as,
for example, the particular devolution scheme to which it applies),
it would assist both consistency and public understanding if they
are based on as substantially similar principles and procedures
as is practicable. Any such reforms towards co-legislating would
require the willingness of both parliaments, but especially Westminster,
to adjust its existing arrangements to accommodate the arrangements
of the other, in areas such as the parliamentary calendar, legislative
processes, "privilege" issues, publication of information
and so on.
CONCLUSION
14. That this inquiry itself is taking place
is important both for the future success of Scottish devolution,
and for enhancing the central role of the two parliaments, as
it demonstrates that:
— Westminster is willing to do what
is necessary to make the operation of devolution as effective
and robust as possible, even where it means changes to its own
settled ways of doing business; and
— a matter such as the handling of
"Sewel Bills" is, and should be, one primarily for the
two parliaments themselves, on behalf of the public they each
represent.
19 December 2005
1 The Sewel Convention, Procedures Committee,
7th Report, 2005, SP Paper 428, October 2005. Back
2
"Counter-devolution? The Sewel Convention on devolved legislation
at Westminster" (2001) Scottish Law and Practice Quarterly
286; "A partnership of the Parliaments: Scottish law making
under the Sewel Convention at Westminster and Holyrood",
chapter 2 of R Hazell & R Rawlings, Devolution, Law Making
and the Constitution, Imprint Academic, Exeter, 2005, and
"Sewel reform at Holyrood: balancing the political and procedural"
SCOLAG Journal, November 2005, 248-9 (the last article
was written before the present inquiry was announced). Back
3
Devolution: Inter-Institutional Relations in the United Kingdom,
2nd Report, 2002-03, HL Paper 28, January 2003, Appendix 5, pp
59-69. Back
4
Constitution Committee report, paras 130-2. Back
5
Procedures Committee report, para 135. Back
6
Chapter 9B, which uses "Legislative Consent" terminology
for what had hitherto been informally called Sewel motions, memorandums
and so on. Back
7
Procedures Committee report, paras 115-123. Back
8
Procedures Committee report, para 209. Back
9
Procedures Committee report, para 121, including joint activities
with committees of the National Assembly for Wales (now in SO
No 137A), and the Modernisation Committee's proposals to allow
EU Commissioners and MEPs (but not members of the devolved parliaments/assemblies)
to participate in EU scrutiny (Modernisation Committee, "Scrutiny
of European business", 2nd report, 2004-05, HC 465, March
2005, paras 67-73. Back
10
Procedures Committee report, paras 203-7, 220: tagging of relevant
Bills; improved Explanatory Notes, and means for communicating
the Parliament's view to Westminster. Back
11
Procedures Committee report, para 210. Back
12
Procedures Committee report, paras 60 and 118. Back
13
Scotland Office annual report 2005, HC 580-i, 2005-06,
19 October 2005, Q18. Back
14
The procedural consequences of devolution, Procedure Committee,
4th Report, 1998-99, HC 185, May 1999, para 1. Back
15
It is not clear how your inquiry fits in with what the Leader
of the House of Commons said at Business Questions on 17 November,
when asked about the Convention and the recent Holyrood report
on it: "I hope in due course to visit the Scottish Parliament
to discuss how these arrangements work and, in particular, whether
they need improving. I accept that that is an unwritten development
of our constitutional settlement . . . Unless there is a necessity
for revising or reviewing the way it operates, I am perfectly
content with the way it works at present." (HC Deb vol 439
cols 1115-6, 17.11.05). Back
16
Taking account of the consistent views of the Constitution Committee,
it is assumed that any proposals made by your inquiry, and accepted
by the House, would encourage the House of Lords to make any appropriate
parallel reforms to the legislative process there. Back
17
The Committee in 1998 produced an early and very thoughtful analysis
of how devolution would affect the governance of the UK: The
operation of multi-layer democracy, 2nd report, 1997-98, HC
460, December 1998. Back
18
SO No 137A. Back
19
Report of the Richard Commission on the powers and electoral
arrangements of the National Assembly for Wales, 2004, para 14. Back
20
Scotland Act 1998, s115 and sch 7. Back
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