Improved Explanatory Notes
21. As well as the situation mentioned in paragraph
5 above, that MPs were sometimes unaware that a Sewel motion had
been passed by Holyrood, a more fundamental problem is that it
is not always immediately apparent whether or not a Bill introduced
at Westminster would actually apply to Scotland, and therefore
could initiate a Sewel motion. One way of removing this lack of
clarity would be to ensure that a Bill's Explanatory Notes included
unambiguous information about which parts of the UK the Bill applied
to. As the Scotland Office stated in its written evidence:
"The Government requires Bill teams to include
in the Territorial Extent section of a Bill's Explanatory Notes
a description of how a Bill applies to Scotland and whether or
not it triggers the Sewel Convention. For example, the Explanatory
Notes to the Equality Bill[21]
currently before Parliament include this information. However,
the Government recognises that sometimes this information is not
as clear as it should be and will endeavour to make sure future
Explanatory Notes are explicit about Sewel issues."[22]
22. David Cairns MP, the Parliamentary Under-Secretary
of State for Scotland expanded on this when he gave oral evidence:
"…I think it is important to get right
the Explanatory Memorandum published at the time the Bill is published,
which would indicate the area that would be covered by a Sewel
motion. I would concede here we do not always get that right.
There are some very good examples: the Equality Act, which has
just gone through, is a very good example of where it was listed
and how it would apply; in others there has just been either inadequate
information or inconsistent information."[23]
23. During his evidence, the Clerk of the House agreed
that notes to identify devolved provisions in Bills could be patchy,
and suggested:
"It could be standardised with advantage. When
it is done well, it is fine. There is a section in the explanatory
notes on the current Police and Justice Bill with some such heading
as "Territorial Extent",[24]
and it sets out provisions that may apply to Scotland very clearly.
If that practice were followed in a consistent way, the House
would have all the information it would reasonably want about
the Bill as introduced."[25]
24. We
support fully the Government in its attempts to ensure that all
Explanatory Notes are explicit about which part or parts of the
United Kingdom a Bill will affect, and could, therefore, trigger
the Sewel Convention, and we recommend that the Explanatory Notes
to the Equality Bill [Lords] and to the Police
and Justice Bill be taken by Bill teams in all Departments as
exemplars.
25. We believe, however, that more could be done
to alert Members of the House to a Bill which could trigger Sewel
even before that Bill was formally presented to the House and
its Explanatory Notes available. After the Queen's Speech, the
Secretary of State currently makes a brief Written Ministerial
Statement stating that a list of Bills which would affect Scotland
is available in the House of Commons Library.[26]
Although helpful, we consider that it could be more so, as the
Clerk of the House rightly stated it is "a matter of some
constitutional significance".[27]
26. We were also concerned that members of the media
and the public who had an interest in Scottish matters might not
realise that a particular Bill affected Scotland and, even if
they did, might not appreciate how they could access this information.
During his evidence, Mr Barry Winetrobe stated:
"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."[28]
27. We were attracted by the idea of the Secretary
of State making an oral statement, on which he could be questioned,
in the House following the Queen's Speech, although, should our
other recommendations be accepted, this may not be necessary.
We therefore
recommend that, instead of a simple statement saying such a list
is available in the Library, a list of those Bills which affect
Scotland is included in the Official Report with
the Secretary of State for Scotland's Written Ministerial Statement
following the Queen's Speech, and that the list summarises each
Bill's implications for Scotland.
Private Members' Bills
28. Preceding paragraphs dealt with Government Bills,
but we were also conscious of how the House dealt with a Private
Members' Bill which affected Scotland, thereby triggering Sewel.
In its written submission, the Scotland Office states:
"As the devolution guidance note…. makes
clear…the same procedures should be followed for private
member's Bills supported by the Government as apply to Government
Bills. The Government will not support a private members' Bill
which includes provisions subject to the Convention without agreeing
with the Scottish Executive that it will seek the consent of the
Scottish Parliament to the inclusion of those provisions in the
Bill."[29]
29. When David Cairns appeared before the Committee,
he set out the Government's policy as being:
"Essentially, the Government's position is quite
clear on this: it is up to private Members to bring forward whatever
they want to in a Private Member's Bill, it is not up to the Government
to tell them what they should do."[30]
30. And he confirmed that:
"The Government is very clear that we will not
support any Private Member's Bill which triggers Sewel unless
all of the other stages have been gone through in relation to
getting the consent of the Scottish Parliament. It is not up to
the Government to tell private Members how they should go about
introducing their own legislation."[31]
31. During oral evidence, Mr Frank Cranmer, Clerk
of Bills in the House of Commons, explained the procedure the
Public Bill Office employs when dealing with Private Members'
Bills:
"When I look at the bill drafted for the first
time, one of the things that I try and bear in mind always is
whether, if it applies to Scotland - though actually not many
of them do - it engages devolved powers. If it appears to engage
devolved powers we draw this to the attention of the Member concerned.
The Bill quite often goes through a long drafting stage; and when
it comes to fruition, and when it is presented and printed, we
let the legislation team in the Scottish Parliament know so that
they can pick it up. It is an entirely informal arrangement but
it is an informal arrangement that is based on an exchange of
letters between myself and …. the Clerk in charge at the
time, saying that we would use our best endeavours to keep them
informed. All I can say, Chairman, is that we have not had any
complaints; the system seems to work well at an informal level."[32]
32. We commend the Public Bill Office for its Information
Leaflet[33] dealing with
the preparation of Private Members' Bills, as it specifically
draws Members' attention to the situation that:
"A decision will need to be reached about the
territorial extent of a Bill….The Government has stated that
it would be likely to oppose a Private Members' Bill seeking to
alter the law on devolved subjects in Scotland without the consent
of the Scottish Parliament."[34]
33. We consider that the current
informal procedures for how the House deals with those Private
Members' Bills which might apply to matters devolved to the Scottish
Parliament are appropriate and work well, and we do not, therefore,
recommend any change to those arrangements.
13 See pp Ev 1-57. Back
14
For list of written submissions received, see p 20. Back
15
Q123. Back
16
Q136. Back
17
Ev 47, para 2. Back
18
Ev 40, para 8. Back
19
Q127. Back
20
Q125. Back
21
See Annex, p18. Back
22
Ev 28, para 29 (a). Back
23
Q92. Back
24
See Annex, p18. Back
25
Q122. Back
26
Q129. Back
27
Ibid. Back
28
Q155. Back
29
Ev 27, para 28. Back
30
Q94. Back
31
Ibid. Back
32
Q118. Back
33
Preparing Private Members' Bills: A Short Guide for Members,
March 2006. Back
34
Ibid. Back
