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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