Examination of Witnesses (Questions 176-179)
ALEX FERGUSSON
MSP AND KEN
HUGHES
26 FEBRUARY 2008
Q176 Chairman: This is a sitting of the
Justice Committee of the House of Commons, at which we are very
pleased to be able to welcome the Presiding Officer of the Scottish
Parliament, Alex Fergusson MSP, and the Acting Director of Clerking
and Reporting, Mr Ken Hughes, who are going to assist us with
our inquiries into devolution 10 years on. The emphasis of our
inquiries is on how the system works as a whole rather than in
the individual countries in which devolved powers exist, and questions
around England, where obviously devolved powers do not exist except
to a limited extent in London. I thought we might just start by
looking at what might appear a relatively technical question but
I think is quite an important one, which is around the Sewel Convention
and the way in which the Scottish Parliament deals with legislation
where it chooses to follow Westminster, or allow Westminster legislation
to have an impact in Scotland within a devolved area. Has there
been any change either in the attitude to the Sewel procedures
or, indeed, in the way they have been operating since the beginning
of devolution?
Alex Fergusson:
Firstly, thank you for your welcome, it is a great pleasure to
be here, if I could say so, and welcome to Edinburgh. On questions
of attitude to Sewel, the whole process of Sewel motions, I would
have to say that the attitude to them is probably rather coloured
by the political climate within a parliament at the time and,
therefore, I would not be very happy commenting on that because
that is not for me to do. The one thing I could possibly say is
that since the last election evidence would suggest that the number
of Sewel motions or Legislative Consent Motions, whatever you
want to call them, that are being dealt with look to be roughly
the same as was previously the case but, other than that, I do
not think I would want to comment on the actual attitudes taken
to them. There has been no huge desire or nobody has greatly come
up with a demand that the whole thing should be revisited, so
I leave that perhaps for you to ask later witnesses.
Q177 Chairman: Mr Hughes, did you
want to add anything?
Ken Hughes: In terms of how procedures
have developed, prior to 2005 the Parliament actually did not
have any explicit or specific LCM or Sewel procedure and the Procedures
Committee of the second session of the Parliament decided that
they wanted to codify in some way the process as it applied to
the Scottish Parliament. It launched quite a major inquiry that
looked into the procedures and what we ended up with was the Parliament
agreeing to a new set of Standing Orders applied to the process
of Scottish parliamentary scrutiny of Legislative Consent Motions.
That did a number of things. The Committee introduced rules in
relation to the expectations of the timescales of when LCMs would
be introduced to the Parliament, and they future-proofed it in
a certain way in terms of looking forward to a situation whereby
governments would be different north and south of the border and
put in procedures that would cope with that eventuality as well.
We have ended up with procedures now that we did not have formerly
and they still seem to be working well.
Q178 Chairman: One thing I do not
quite understand about the procedures is whose job is it to be
certain that a piece of Westminster legislation requires a Sewel
motion, and can a situation arise in which the Scottish Parliament
either thinks that it should have been a Sewel motion matter or
discovers later to its cost that it should have been treated in
that way but is actually now on the statute book?
Ken Hughes: That side of the process
is almost purely intergovernmental. It is up to the governments
north and south of the border to agree what provisions in UK bills
could be affecting devolved matters. It is the relationship between
the two governments that decides whether the Scottish Government
then comes to the Scottish Parliament to ask for consent or provisions
to be included in a UK bill. One can probably never rule out the
possibility of something hitting the statute where it has just
fallen through the net but, without wishing to pass the buck,
in the first instance that would be a matter for the governments.
Q179 Chairman: Which government?
Ken Hughes: Both. Again, post-2005
what we have tried to do is have an early warning system in as
much as when the Queen's Speech is made I believe there is contact
at that point between the two governments and the Scottish Government
comes to the Parliament to say, "Here is a list of bills
in the Queen's Speech. Here are the bills that we would expect
an LCM or Sewel procedure to apply to".
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