Select Committee on Scottish Affairs Minutes of Evidence


Examination of Witness (Questions 140-159)

28 MARCH 2006  MR BARRY K WINETROBE

  Q140  Chairman: Do you think that there is any issue or any area that needs improvement?

  Mr Winetrobe: One of the reasons why in my opening remarks I tried to say that one of the main differences was this idea of the executive parliamentary relationship is that the Scottish Parliament is supposed to be a far more autonomous parliament in relation to its executive and that that is something that has taken people in Scotland quite a while to get used to as to what that actually means. A lot of people came from a Scottish Office background or a Westminster background where the idea of a Leader of the House, the Government having control of business and so on is so embedded in the culture that it is almost taken for granted. Therefore, I think any opportunity that allows the two parliaments as autonomous institutions to speak to each other, to work with each other, to liaise directly with each other, is to be welcomed. I think that was one of my main concerns from an academic point of view all the way through how the operation of the Sewel Convention played out since 1999, that it was very much driven by the two executives where the parliaments were being driven along by them. While that might be understandable, however regrettable in my view, at Westminster, it was contrary to the stated ethos of the Scottish Parliament and to some extent was clashing with how it was trying to operate in all its other respects.

  Q141  David Mundell: Just following on from that, do you not think that part of that is a symptom of the general similar political complexions of both parliaments at the moment? That would not be possible if there was a significant difference in the main parliamentary make-up, would it?

  Mr Winetrobe: Do you mean relationships between the two parliaments or the two governments?

  Q142  David Mundell: I mean with the executives to drive things through the parliaments?

  Mr Winetrobe: Yes, things would be very different in so many different respects if we had governments of different political colours in London and Edinburgh. As you know, how that would work, nobody knows. It would depend very much on what these two governments are. There are many different permutations that you could have which would have different sorts of consequences. One would assume that, for example, from your perspective, a Conservative government in either place would have a more Unionist perspective and therefore would have a tendency, a predisposition, to co-ordinated working perhaps, whereas perhaps an SNP-dominated government in Scotland might want to test the boundaries more and therefore that would produce a different set of circumstances. I do not think anybody can say any more than that at the moment.

  Q143  David Mundell: I think the importance, which is one of the reasons that the committee wants to look at this issue, is that the process and practices have to be robust enough to be able to withstand whatever political arrangements are in place. There is always scope for those in office to try to manipulate the system, but at the core you do need to try to have robust procedures which minimise the opportunity for that.

  Mr Winetrobe: In principle, yes; in practice, I think it is probably fair to say, especially in the last 20 or 30 years, at Westminster there has been more of a tendency overtly that when you come to power, especially after a long period out of power, to some extent you get to remake the rules and re-make the parliamentary rules to some extent as well that suit your particular circumstances because we have gone from one very large majority to a period of almost minority government and then to another very large majority, and every set of circumstances is different. To some extent, in an ideal world, yes, parliamentary procedures, almost by definition, should be things that should withstand the vagaries of any particular political situation, but in practice one has to accept that these things will have an impact, and especially when you have a multi-level government system as we have had since 1999. To some extent, there has to be some acceptance of making rules to fit that particular set of circumstances. I heard the earlier evidence and read the earlier evidence and this question has cropped up by yourself and other members. To a large extent, I think that if we did have those sorts of differential governments in the sense of more antagonistic governments in the two places, then the Sewel Convention in its operation would be the least of the issues in everybody's concern. I think the whole parameters of the relationship within the United Kingdom would change anyway and the Sewel Convention and whether that worked or operated would change with it.

  Q144  David Mundell: Going back to the Procedures Committee report from the Scottish Parliament, you have made a number of suggestions how Westminster procedures might be changed. Examples were tagging relevant bills in parliamentary documents, mentioning any Sewel implications, explanatory notes, and the Scottish Parliament's Presiding Officer sending copies of any legislative resolution to Mr Speaker and the Lord Chancellor. Do you have specific views on these suggestions?

  Mr Winetrobe: I am fully in favour of them. I think I was probably the one that suggested them in the first place in my submission to the Procedures Committee, so I am fully in favour of them. I suggested various other ones which the Scotland Office and the clerks and people here are not so keen on, such as certification, but these are more complicated procedural matters.

  Q145  David Mundell: Of the things that you suggested which were not accepted, is there anything that you think is particularly significant or were the decisions enough to go with them? Is it a matter of preference or is there anything that was significant from your suggestions?

  Mr Winetrobe: As I tried to indicate in my submission to this committee, I think there are different levels of suggestion and the ones that seems to have had general acceptance, the three that you have mentioned, are ones that are pretty minimalist, things that could be introduced without any real change to anybody and it makes pretty common sense. I am in favour of more joint working between the two parliaments. Procedurally how that works, and I realise it is complicated, I think if the will is there in both parliaments, and I accept it is a matter for the will of both parliaments for all sorts of reasons, then more can be done. I think we are now beyond a stage where, from the perspectives of both parliaments, maybe both had to respect the other's position and give them space. I do not like to use words like "maturity" and what not, that the Scottish Parliament is maturing or whatever it might be. I do not think that is the right way to look at it. I just think that to some extent at the beginning each had to give the other space and not tread on their toes and so on. I think now both parliaments can do more together without raising huge constitutional questions in the way that Sewel unfortunately did. It was perhaps an unnecessarily controversial issue for five years, but perhaps it has been a good cathartic experience because it has been shown that there is a lot of common sense underneath the party political constitutional issues. I think that can be applied without anybody giving away their constitutional preferences about the United Kingdom and so on and that more working, whether it is by joint committees or informal meetings or joint scrutinies or attending each other meetings can be done, especially from this place. When this place wants to do these sorts of things, it can do so. We have seen that with Wales; we have seen it with the proposals for European scrutiny. I thought it was a pity that that proposal from the Modernisation Committee[21], I think it was, was quite happy to see MEPs come along and take part and European Commissioners come along and take part, but somehow it was not proper or seemly or necessary for members of the devolved parliaments and assemblies to attend. Frankly, I could not see why that was the case. I think that was a missed opportunity.

  Q146 Danny Alexander: To follow up that point about the joint working, do you think there is a case for Westminster to adopt a Standing Order similar to Standing Order number 137A(3) to permit the Scottish Affairs Committee to meet jointly with a Holyrood committee at Westminster under our procedures as an example of the sort of joint working that you are talking about?

  Mr Winetrobe: I would be in favour of anything like that. As for how it works out procedurally, and I have learnt from working in both parliaments that procedure is not something that is just devised from on high to obstruct matters, there are good reasons for procedural issues to be considered. It might be that the differences between the legal powers and privileges of the two parliaments make some methods of joint working difficult, but all these things can be worked round with good will and for appropriate purposes. I am not saying that it should be a bit like the Belfast Agreement mechanisms or the related devolution British Irish Council or British Irish Parliamentary Body, that you have summits and meetings just for the sake of it, but when there is a good reason for joint working of some sort, then any procedure problems or niceties or interests can be overcome.

  Q147  Mr MacDougall: I am going back to the point you were making about maturity, as you mentioned and I am not sure what you call it, and that we gain experience at the beginning and have to move on. I think there is a general moving on now and there is a greater confidence that prioritisation within the Scottish Parliament is much more relevant than it may have been in the very early years. Taking up that point, you said that there was an encouraging theme, if you like, regarding the two governments, or almost an acceptance that there is some need for some change at some level—and that is what we are trying to get information on by taking evidence now—and if the executive were to improve operation of the Sewel Convention that would be welcomed. We talked about the how we go about that and what would be acceptable or not to both parliaments. Do you believe that the Procedures Committee's proposals indicate at this level not a maturity but more confidence that they can come forward in their own right at this stage and say, "We have established ourselves now as to what we intend to do and therefore the time is ripe to have this dialogue that previously might not have been possible"?

  Mr Winetrobe: I am not sure about that dressing up as if it was something deliberate in the first few years that the two parliaments maintained their distance. I do not think there was anything deliberate about it. It was just simply how things happened. The new parliament was inevitably inward-looking in the sense of getting itself up and running. This place, this committee in particular, had to adjust to that new scenario. With the media we have in Scotland and with the multiplicity of parties with different constitutional views, obviously every single thing was picked over and could be made into a great shock horror story. Therefore, to some extent, nobody was allowed to step back and think of these things. You were always being driven to do the business, get your business through, and react to things. I do not think in any sense, and perhaps you were not intending it to mean that, there was anything deliberate about the two parliaments maintaining any sort of distance and that now they can join together. What I mean is that any sense of one intruding on the other in some sort of unwelcome way, this sort of misconception, is now dissipated because both parliaments have realised that they have their own spheres; everybody recognises the existing legal constitutional position whether you are from a party that supports that or disagrees with it. While you have these situations I think there is a lot that can be done within these parameters. If we have changes of government, then there will be a new situation.

  Q148  Mr MacDougall: Therefore, if for example Westminster accepted the Procedures Committee's recommendations, where would you see the significant improvements coming from, in which areas, and how would you see the benefits of that?

  Mr Winetrobe: One of the reasons why I was emphasising the Scottish Parliament's principles in my opening statement was that the Scottish Parliament is explicitly meant to be one that is very open and transparent. As somebody who now works in academia and therefore is not inside either one or other of the parliaments and therefore does not have any special access to the information or what is going on than potentially any other member of the public, I was very conscious in the Sewel context of quite how much was going on under the surface without any real public transparency. I think that anything that happens in terms of informed consent, informed debate, informed scrutiny, in both parliaments must be good in terms of governance, in terms of the proper jobs of any parliament, and in terms of public legitimacy and awareness. A lot of what was allowed to emerge as the Sewel controversy for the first five years was based on this unfortunate opaqueness of the existing procedures and I think there is now a general recognition amongst the two governments as well that a formalisation of the procedures and more openness actually helps; it does not hinder the process of governing. It has made Sewel a non-issue. The most interesting thing was that when the Procedures Committee report came out last autumn, I do not think it got one line in any of the newspapers in Scotland, whereas they had been on and on about Sewel for years.

  Q149  Mr MacDougall: Just touching on that point, in your submission you have referred to that issue. You talked about arrangements between the two parliaments and matters being arranged between the two governments. How do you think that situation should be addressed and re-addressed? Also, if I can add a supplementary to that, and you can deal with this in the same breath if you like, if the Procedures Committee's suggestions were adopted, do you therefore consider that that would benefit both parliaments equally, or do you think there would be a greater benefit to one parliament than to the other?

  Mr Winetrobe: My understanding from following what the Procedures Committee did was that they were very conscious of the limitations of their own remit. They could only advise about the procedures of their own parliament. Therefore they were devising a system that fitted the reforms that they wanted to happen, the benefits they wanted to flow from their perspective, but, at the same time, they were very conscious that Sewel business in a general sense happens in two parliaments as well as other places. Therefore, I think what they have done is try to devise a system that complements or fits in with what happens at Westminster and also would be sufficiently flexible that changes such as those it has suggested or could foresee might be possible at Westminster could be accommodated within their new arrangements. I think they were primarily working for the benefit of their own parliament but with an eye to: this is one piece of the jigsaw and if you want to reciprocate, then it should fit neatly together. I am delighted, and I must say slightly surprised, that that is exactly what has happened and that you are conducting this inquiry. I think that shows a great hope for the future, not just in terms of the Sewel business but in dealing with other issues that might arise.

  Q150  Mr MacDougall: On the question of balance, do you see who benefits more of the two or is that equal?

  Mr Winetrobe: I am not sure. I have never really thought about it in those terms. I think that the improvements in the procedures from the point of view of the Scottish Parliament and the Scottish Executive are potentially great and it seems to be working a lot better. For the Scottish public it works a lot better because it is a lot more transparent, even though it might only be a few people like me who actually follow it in any great detail. Potentially, anybody can now see what is going on, which I think is a fundamental principle. I think it should be better here. What the Secretary of State said to you last autumn has crystallised the whole issue down here. I think it has made everybody more aware down here that things could be improved, whether at government level or at parliamentary level. It might not necessarily be at the level of parliamentary procedure; it might just be in parliamentary practices and so on that I think the benefits will flow here as well and the benefit to the whole system of governance that is covered by subjects that are dealt with by way of the Sewel Convention will be more than the sum of its parts. It will be of benefit all round.

  Q151  Ms Clark: Can you think of any other initiatives that we could introduce that would improve the working relationship between Westminster and Holyrood?

  Mr Winetrobe: I am not sure that is for me to say because a lot of it is what happens to suit the particular parliaments and their particular members at any particular point in time. As I say, I am not arguing for some big formal framework in the way inter-governmental relations are set up with joint ministerial committees and so on and the equivalent of that in concordats because I do not think that is necessary, but there should be good working relationships and both parliaments should look to make the way they do their business not only efficient for themselves but potentially open to incorporate the other parliaments in the UK and in relation to Wales where obviously the need for co-operation was far more important because of the different legislative powers and processes. I still think there is a need for that joint working, even in the relationship between Scotland and the UK. For things to change here, a lot of it is, as I said before, integral to the way things happen here. As you see from the Scotland Office's evidence, to some extent the Government runs the parliament in that sense in terms of the rules of the game as well as just playing out and winning the votes. That is something I have never been in favour of and therefore a lot of that would not just be a matter of Scottish-UK relations or Sewel relations; it would be a more fundamental change to this Parliament. Things that I suggested in my submission are matters that would have to change across the board. I am not suggesting it is something that would necessarily happen or happen soon. There is this idea of the memberships of standing committees and of select committees reflecting the different interests, and that might be a territorial interest of Scottish MPs on a bill that has Sewel implications. I saw what the Minister said, quite rightly, in the legal and formal sense of all members being equal and all members representing the whole United Kingdom, but in practice we know that if somebody comes from a particular area, they are more likely to have some understanding of that and to some extent put in that point of view, that perspective. Certainly, in the first five years or so, so many Sewel bills went to standing committees that had no or very few Scottish members. To some extent that is still the same. One of your Members was a member of the Legislative Regulatory Reform Bill committee and I am sure would not have regarded himself as the Member from Scotland in that respect. Mr Carmichael said in his evidence to the Scottish Parliament's Procedures Committee that it is an imposition, an unfair imposition, if someone happens to be a Member from Scotland on a standing committee on a bill to which consent has been given and that to some extent they bear the whole burden of having to represent Scottish interests in that respect. So I think there are more fundamental issues about how you do legislative business that are far wider than just simply arising for Westminster in a rather peripheral context.

  Q152  Danny Alexander: The last point you made is important in terms of the role that Scottish MPs may or may not have in scrutinising legislation to which a Sewel motion has been applied. Do you think there may be a role for the Scottish Grand Committee in this respect? I know that you suggested in your submission the idea of setting up specific Scottish standing committees to enable the newly-added Scottish elements of the bill. Bearing in mind that the Minister said to us that many Sewel motions are very minor matters but there are some that have a greater significance, I wonder if there may be a role for the Scottish Grand Committee in perhaps giving some opportunity for Scottish MPs to scrutinise that, perhaps a Sewel motion when it arrives or the bill in that way, so that you are not put in that position of being the sole representative of Scotland on any standing committee, or indeed having a standing committee where there are no MPs from Scotland. By the time the Sewel motion arrives, that committee has already been composed and nothing can be done about it.

  Mr Winetrobe: One of the difficulties about making any hard and fast recommendations—and it was something I found very quickly though I knew it instinctively when I was looking through the 38, or whatever it was, Sewel bills in the first five years—is that they arise in so many different ways. Some were private members' bills, some were Lords' bills, some were private peers' bills, and so on. They come in all sorts of ways. They are draft bills, carry-over bills, and so on. Not all bills have a Sewel aspect right from the beginning; that may come later. It is very difficult to make any hard and fast rules. The Scottish Parliament's committee very quickly accepted that and tried to make the rules that it introduced in its standing orders as flexible as possible to accommodate whenever a Sewel issue arises. Within the context of a greater presumption and greater practice for things like draft bills and so on where you know that there is going to be a Sewel element in advance, then that might be an area where the Scottish Grand would be an appropriate or convenient mechanism. I am not sure—again this is a matter of procedure and therefore it is not something I am expert in at all—whether it would be suitable in each and every case to simply summon the Scottish Grand Committee each time just to tell it, "Here is a very minor thing". It would be like one of these SI[22] committees where the business would be over in two minutes or something like that. You do what is appropriate to the particular scale of it. Some are very minor, but some are extremely important. In some, as with the Legislative and Regulatory Reform Bill at the moment, what is the formal subject of the legislative consent motion is a very minor part of the bill but the much bigger part of the bill is something that, strictly speaking, is outside the Scottish Parliament's remit but it has exercised people in Scotland just as much as it has exercised people in the rest of the country. To some extent there are issues like that about "we cannot let this go by without at least putting down our marker or making our point, even though we are not actually giving consent to anything" because that is a different part of the bill. There are so many different sets of circumstances that I would not want to get into the situation, even if I pretended to have enough procedural knowledge, to say, "This is appropriate for a joint committee" or "this is appropriate for Scottish Grand Committee" or "this is a situation where you could perhaps split the bill into two standing committees and revive something like the old Scottish Standing Committee". I think each would depend on what was the best way to scrutinise these provisions effectively.

  Q153 Gordon Banks: On the issue of the Scottish Grand Committee, going back a few sentences, you mentioned that it is possible that the Scottish Grand Committee could be a procedure that could consider something if it had long enough notice in advance. What about the situation, and I am sure this concerns Danny Alexander a little more, when debate of Scottish Members within the House may have been restricted because of not knowing that there is a Sewel motion applicable? Do you think that the Scottish Grand Committee could be kicked in to be an additional form of scrutiny later on in the process as opposed to early on in the process, which you mentioned in your evidence a few minutes ago, to provide a mechanism where Scottish Members could play catch-up on something that has already gone through a certain level of its parliamentary process?

  Mr Winetrobe: I suppose the easy answer to that would be that you would hope that that sort of situation did not arise in the first place, that you did not have to play catch-up. Assuming it did, yes, it might well be the case. Then that goes back to this question of initiative. Who is it that summons the Scottish Grand Committee? Whereas in the Scottish Parliament, at least formally, these sorts of issues are a matter for its Business Committee, the Parliamentary Bureau, all these sorts of things about when committees meet, what business they deal with, are all matters essentially for the Government. So it is not a matter like this committee of deciding to meet. The Scottish Grand Committee, as far as I am aware, cannot in effect itself decide to meet because it does not exist in its own right in that sense. Again you go back to relying on a government agreement to put forward the relevant motion for the committee to meet. It might not in particular circumstances be in its interests; it might be a matter of genuine controversy. It might be one of the "Sewel" bills that is very political, whether party political or political with a small "p", that it might not want yet another forum where discussion, debate and argument could be reported on by the press. Why should they give it yet another opportunity?

  Q154  Gordon Banks: You mentioned a few minutes ago that when the Clerk of the House gave his evidence last week he counselled against the bill being certified by the Speaker as being one to which the Sewel Convention would apply. Do you think there a practical point to certification or is it purely just symbolic?

  Mr Winetrobe: I am not wedded to certification as such. My point when I suggested that originally was simply to recognise that these bills had some distinctiveness about them and therefore required or should have some sort of distinctive procedure or process applied to them. It might not be a formal different procedure but there should be a recognition that there was something special about it in that sense, like a money bill, like an exclusively Scottish bill, and so on. I accept that there might be procedural reasons why certification as such is not the way to do that. The important thing is that in some way in a formal, official and parliamentary context it tells both Parliament itself, its Members and the wider public, "This is a bill which has had this particular form of treatment applied to it in Scotland and therefore it should potentially be looked at with maybe a slightly different perspective down here".

  Q155  Gordon Banks: It has become practice after the Queen's Speech for the Secretary of State to put a written statement down in the library of the bills that will be affected. I think the Clerk of the House said last week that he thought perhaps a better procedure would be actually to list this in Hansard, thereby providing that information not only to parliamentarians but also to the wider world. Do you think that would be a more beneficial process than the statement being placed in the House library?

  Mr Winetrobe: I am certainly in favour of anything that makes information available to the wider public. As somebody who used to work in the Library, the placing in the Library system is not a method of publication, although most things that are like that would be published in some other way. It would be on somebody or other's website. Yes, I think there are ways that make it more transparent, more open to the public. In an ideal world, perhaps you would have an oral statement by the Scottish Secretary about which he could be questioned by yourselves immediately after the Queen's Speech in the same way as for other announcements made about details of bills by other Ministers. Or after the Budget, various Ministers like the DWP Minister come up and make a statement about the implications. Perhaps, if it has now become so institutionalised in that way, the practice could be for an oral statement immediately after the Queen's Speech stating, "These are the bills on which we will seek the agreement of the Scottish Executive and Scottish Parliament for the operation of the Sewel Convention". Then everybody would know it and yourselves and other Members would have an opportunity to debate and discuss it at that point.

  Gordon Banks: Being a new Member here, I think transparency is not only important for the wider world; it is also important for us here. Many Members here are not aware of the pertinence of Sewel to legislation. That is the point.

  Q156  Danny Alexander: Taking on your suggestion about the oral statement as a way of possibly developing the practice that Gordon has referred to, if it was not an oral statement before the whole House, it might be appropriate for either an oral statement to the Scottish Grand Committee or indeed a bit of quizzing of the Secretary of State on these matters at this committee in order to try to find some way of getting the Government to talk more openly about what is going on in this.

  Mr Winetrobe: I think these sorts of ideas are definitely worthy of consideration. That is a sensible use of the Scottish Grand Committee, for example, especially if it took place perhaps in Edinburgh rather than in London. The Scottish Grand or this committee would discuss it; it would all be out in the open and it would be as available to the people in Scotland, to Members in Scotland, as to Members such as yourselves. To some extent, this idea of information is not just a matter for those provisions which are subject to the Sewel Convention. Other things where the Government in a government bill might regard the extent to which it intrudes—that is not the right word—or relates to devolved matters might just be incidental, and therefore the Sewel Convention does not kick in. As you have heard from your other witnesses, the new procedures at Holyrood say that the Executive will still have to put down a memorandum to say that it is not seeking a Sewel legislative consent motion in those circumstances. There are many other examples where peripherally things might affect Scotland that are never made clear. I am not saying that they should be announced from the rafters and that they will create a great fuss, but when you do come across them by accident, you think: I wonder how many people really know that? There is one going through at the moment on the Government of Wales Bill, a very minor amendment to the interpretation provision that means, in effect, another one of these sorts of powers to amend Scottish legislation can happen under the Government of Wales Bill. That has not, to my knowledge, been discussed here. It is not something that is going to engage the House of Lords or the Constitution Committee or the Delegated Powers Committee and so on. There should be a way, whether it is through explanatory notes or whatever, that at least everybody is told, however peripheral, however residual, however minor this might be, that this is potentially crossing the devolved/reserved boundary.

  Q157  Danny Alexander: Taking that idea one step further, when we are talking about the possibility of the Scottish Grand Committee meeting in Edinburgh, might it be sensible—and again this is about the joint working issue that we discussed before—to allow MSPs to take part in such meetings with the Scottish Grand Committee in the same way as there has been discussion about allowing MEPs to take part in relevant committees here already?

  Mr Winetrobe: As I said before, I think there are obviously legal and procedural issues—I will not say problems or insuperable problems. There obviously are issues. It is perhaps understandable that neither parliament wants to say, "We want just, in effect, to be the guests of the other; we want it to be a joint meeting under both auspices" in the way there are joint committees of the two Houses here, but that is not possible because of the differential legal and constitutional positions and questions of privilege, questions of legal liability, all these sorts of things. All that can be got over and to some extent the National Assembly and the House of Commons were very creative over what is now Standing Order 137. As far as I am aware on that particular measure, the Transport Bill or whatever was the original one, it worked very well. It has now become institutionalised in your Standing Orders. There are always ways of doing things and you can always find a precedent. I think there is some Government of India bill or committee back in the Thirties that was the precedent for that way of joint working. One thing you learn in this place is that there is always a precedent. You might have to go back several hundred years but there is always a precedent for everything. All I am saying is that it can be done if the will is there in both parliaments and neither stands upon its privileges. I think the Scottish Parliament has been as guilty of that at times as perhaps this place or some of its Members or committees may have been in the eyes of the people in Scotland. These are the sorts of things that maybe you were talking about. I hope these are passed now.

  Q158  Chairman: What is your view of how the existing inter-governmental arrangements work in practice?

  Mr Winetrobe: I am sure formally that the inter-governmental relations work efficiently from the point of view of the two governments. Again, there is a lot of politics, with a small "p", involved in it. There are issues because of the differential electoral cycle, apart from anything else, and one parliament's election is in the middle of the other parliament's period in parliament, and both sides are therefore very conscious of making their point and showing that they are as independent as possible. There have recently been lots of suggestions that ministers and officials of the two administrations are not getting on well from time to time. There may or may not be anything in that because these things are of necessity conducted in private, but, in terms of getting things like the Sewel business through, as far as I can understand, it seems to work adequately. There has only been the one piece of legislation that slipped through inadvertently without having a Sewel motion applied to it that it should have had. From that point of view, I suppose it is working. A lot of the rest is, as Mr Mundell said before, essentially politics and personalities. The formal mechanisms have not actually had to kick in much. A lot of that may well be to do with the two governments being of roughly the same political persuasion with the coalition in Scotland and perhaps other differences between the main parties, shall we say. I think both governments and both administrations widely, officials as well as ministers, have regarded it almost as a point of honour not to have disputes, which is something in the rest of the world where you have federal systems or similar types of systems is not regarded as a sign of failure; it is regarded as a routine part of having a multi-level system of government. There will be disputes and that was why all these arrangements were set up in the Scotland Act and in these concordats and so on. That was not a sign of failure. It was just simply an inevitable part of doing business. Thus far, one can only assume from what we have read and followed that everybody has bent over backwards to make sure that there have been no formal disputes in the sense of a court case or a referral to the Judicial Committee or an appeal to the Joint Ministerial Committee or any of these formal mechanisms. If that is the definition of it working well, I suppose, yes, it is working well.

  Q159  Chairman: Do you not think that the present arrangements between the two parliaments and the two governments have worked well because both governments are mainly formed by one political party. If there was going to be a different political complexion between the Scottish Parliament and the British Parliament, do you think that the present arrangements are adequate to suffer the pressures from different governments?

  Mr Winetrobe: I do not think anybody knows the answer to that. As I suggested at the beginning, I think to some extent you have to accept that arrangements are set up to suit the particular political realities at that particular point in time and that, depending on what these new realities are, and there could be so many different scenarios depending on which parties are involved in government in Scotland and in London, some of these arrangements might formally change; some bits that are being used just now might not be used any more. Things like the Sewel Convention might not be used under different sets of circumstances. That does not mean that it is abolished or officially repealed in any way. It just sort of falls into abeyance because of our unwritten constitution and the fact that so much of the devolved arrangements, especially at this inter-governmental level, are not matters of law or written down in any formal sense. They can just lie there; they do not have to be formally repealed. The Joint Ministerial Committee is supposed to meet annually, and I do not think it has met for a few years now, for example. Everybody learns what to use. There was a tendency at the beginning to try to dot all the i's and cross all the t's and nail everything down very tightly, especially from Whitehall's perspective, to make sure that these three new administrations out there did not run off and do their own thing without them knowing what was going on. They have learnt that a lot of that has worked out differently. A lot will depend on matters that are really nothing to do even with devolution. As we have seen from the Government reshuffle in June 2003, changes in the Scotland Office and the Scottish Secretary were almost a by-product of other changes. That might well have as much impact, even without changes of government. Whether there is still a Secretary of State, whether there is still a Scotland Office, all these sorts of issues will have as much impact on how relations work.


21   Select Committee on Modernisation of the House of Commons, 2nd Report of Session 2004-05, Scrutiny of European Business, Second Report 2004-05, HC 465-I, paras 67-73 Back

22   Statutory Instrument Back


 
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