Devolution: A Decade On - Justice Committee Contents

Examination of Witnesses (Questions 180-199)


26 FEBRUARY 2008

  Q180  Alun Michael: Forgive me. I can understand that at a political level, and it is obvious that at both ends of the equation people will be looking to see what is the trigger, but at the end of the day, for instance it might be that it is a small part of a piece of legislation that has that requirement which is not obvious at the level of the Queen's Speech or even the Queen's Speech debate, so who is responsible for looking out for that at the Westminster end? Is it the parliamentary draftsman, is it parliamentary counsel that is meant to look out for that? At the Scottish Parliament end is there somebody who keeps an eye on legislation that is bubbling up in the House of Commons or the House of Lords in order to trigger off a dialogue?

  Ken Hughes: Again, I cannot speak for how that works in reality because that is a matter for Whitehall departments and the Scottish Executive officials up here, that is where the role lies. Having said that, I have had previous experience of working in the Civil Service and in theory I do not think the issue has changed much pre and post-devolution because even if UK bills were being drafted in Westminster previously they would have had to come to the Scottish Office and Welsh Office, for example, to say, "Look, there are provisions in here that are going to affect your jurisdiction". I would have thought the first contact was in the drafting of legislation and I would have thought it would be official to official, but at what level and exactly who the officials are I cannot say.

  Q181  Chairman: There is a very interesting case coming up, which is the provision in the Counter-Terrorism Bill which would allow cases to be transferred from Scotland to England for trial. Have you established so far whether that requires a Sewel motion or, indeed, whether a Sewel motion would be sufficient to allow such a provision to be passed? Who makes that assessment?

  Alex Fergusson: Good question, but I want to think about it while Ken answers it.

  Ken Hughes: To the best of my knowledge we do not know officially about that one yet. The other thing I would probably throw in the pot is when things may well contain controversial provisions there may be interested members in all parties of the Parliament keeping a watching eye on those things. There is absolutely nothing to stop them and probably good reason for some to take such an interest. That is another way of saying there is maybe less likelihood of things slipping through the net.

  Alex Fergusson: Can I come in on that, Chairman. I think it might be worth pointing out that part of the new rules since 2005 allows any member of the Parliament to lodge a Sewel motion or Legislative Consent Motion. There are several beady-eyed Members of Parliament who would not want anything to slip through, or their attention might be drawn to it from other quarters. There are procedures in place since 2005 to try to ensure that does not happen.

  Q182  Chairman: Is that something which re-engages in the Scottish Parliament, not like, say, an Early Day Motion in the Westminster Parliament which simply sits on the Order Paper? If I were a member and I felt there was a Sewel motion justified, can I secure debate on such a motion?

  Alex Fergusson: The Parliament cannot refuse a motion that has been tabled on a Legislative Consent Motion, it has to hear it and, therefore, it has to go through the processes, which does allow parliamentary input and debate on that motion. It cannot be refused.

  Q183  Mr Turner: Are the procedural processes at both the UK and Scottish Parliaments the most effective and appropriate means of passing legislation for Scotland in both devolved and reserved matters?

  Ken Hughes: Can I just clarify that by asking whether you are referring to legislation in general or Sewel motions?

  Q184  Mr Turner: General.

  Alex Fergusson: General legislation. Obviously I could not possibly speak for Westminster procedures and practices. Would it be helpful if I just very briefly took the Committee through what our legislative processes are? It is probably of particular interest as we are, obviously, a unicameral chamber and, therefore, the question of scrutiny is important. Any legislation that comes to the Parliament will begin at the Parliamentary Bureau, each party that has five members or more is entitled to a place on the Parliamentary Bureau. The Bureau meets once a week to determine the business of Parliament, and that is how we order our business. The Bill will come before the Bureau, which will allocate it to a relevant subject committee. That committee will then investigate the Bill that has been put up to it and draw up a report which will then be debated within the full Parliament at the stage one of debate, which is on the general principles of the Bill, no amending will have taken place at that stage. Assuming that the Bill passes it will go back to the same committee for stage two scrutiny, and this involves line-by-line scrutiny with amendments according to how much people feel it needs to be amended. It can be an exhaustive process. It will then come back to the Parliament at stage three, as amended, allowing a further process of amendment, followed as part of the same stage three process by a debate on the motion that the bill be passed. That is the process that we undertake with any legislation. It has had very little tinkering around the edges, mostly in terms of timetabling and as Presiding Officer I now have the right to extend stage three debate if more time is required. Very small timetabling tinkering, if you like, has been done around the edges, which would indicate, given that we have handled quite a number of bills now, that there is nothing to suggest this is not a perfectly efficient and sensible process within the context of this Parliament.

  Q185  Mr Turner: That deals with (c), which was further down, but could you just help me a little on exhaustive examination by this committee. Is it genuinely exhaustive or does there come a point where it goes back to the House?

  Alex Fergusson: I think it is exhaustive. Having been a convenor of a committee in the first Parliament which was dealing with a lot of contentious legislation at the time, it is certainly exhaustive in terms of wringing everything out of every relevant witness that can be wrung, if I can put it that way. The process of taking evidence at stage one and considering amendments at stage two is exhaustive, yes. Certainly it was in some of the legislation I was handling where we amended the original proposals quite considerably and considerable amendments then came back in at stage three from those that did not agree with the amendments that had been made at committee, so the whole Parliament then got the opportunity to debate not just the amendments that the Committee had made but also the counterproposals from other people who had chosen to make those amendments. I think by the time you have got to the end of stage three and you actually enter the debate process, the final part of the legislation, you have had a pretty exhaustive process.

  Q186  Mr Turner: You have had an exhaustive process rather akin to the UK Government up until, say, 2000 and 2001 or 2002?

  Alex Fergusson: I guess that would be right, yes.

  Chairman: I think it is a better process, but that is a matter of opinion.

  Q187  Julie Morgan: I just wondered if I could ask, you started off by saying you were a unicameral body. Do you think there is any case for a second chamber?

  Alex Fergusson: There are always cases for all sides of any argument.

  Q188  Julie Morgan: Do you think the scrutiny could be improved?

  Alex Fergusson: To be honest, we are heading into devolution settlement territory here which is not for me to answer.

  Q189  Mr Turner: What you have said in your responses so far is you feel that the scrutiny is adequate?

  Alex Fergusson: I have no reason to suggest, and nobody else involved in the Scottish parliamentary process has suggested, that it is not.

  Q190  Alun Michael: In describing the scrutiny process there are different elements, and you have referred to them in passing. Do you think the balance is right between, for instance, evidence taking, which is clearly part of stage one, did I get that right?

  Alex Fergusson: Stage one and stage two to a lesser degree.

  Q191  Alun Michael: So at one, and to some extent two, you take evidence from witnesses who will be outside and then you will have line-by-line scrutiny in the committee stage and in the second stage when it is recommitted to the committee, is that right?

  Alex Fergusson: You have line-by-line scrutiny in stage two once it has gone back to committee having agreed the general principles. Most of the evidence taking will take part in stage one. The Committee may choose to hear again from either the same witnesses or others at stage two, they are perfectly entitled to do so, in order to allow the exhaustive process that you were referring to to be fully exhaustive.

  Q192  Alun Michael: Are you finding that any conventions or rules have built up in terms of what sort of amendments can be brought at different stages or is it open season?

  Alex Fergusson: I think it was effectively open season in some of the more contentious legislation that we had, particularly in the first Parliament when we were talking about things like what became known as the Hunting Bill, although it was officially known as the Protection of Wild Mammals Bill, and some of the land reform legislation. Forgive me, that is the stuff I know best because that was the committee I was chairing at the time. It was in the very early days of the Parliament. We needed an enormous amount of time to deal with everything that we had to deal with in those two bills in particular. We had that time, although the committee always felt under some pressure. We are now living in the days where perhaps one of the effects of the last election and the change of governing party—it is not the effect of that but the fact we have a minority government now—is we have probably a bit less legislation to deal with. The upside of that is it allows much more time for scrutiny by committee. I am not saying that the previous committees were unable to scrutinise properly, that would not be true to say at all, but there were some bills, certainly in the early days when we were passing a great deal of legislation, where there were time pressures felt, if I can put it that way. I do not think anybody has suggested anything other than the possibility of perhaps extending the length of time at stage three which can sometimes come under a little time pressure, but which we have now tinkered with to allow that time to be extended. I think most members would feel the process is adequate certainly to deal with the legislation we now have and are likely to have in front of us.

  Q193  Alun Michael: There are two other splits which any legislature has, one is the split between legislation and non-legislative debate, scrutiny of performance and delivery and so on, and the other is the split between plenary and committee activity, with obviously committee activity tending to be more detailed. In those quartiles of activity, if you like, where do you feel that it is settled and is it the right balance? Partly the question is because legislatures and governments have a tendency to legislate as the answer to anything, and it is not the answer to everything.

  Alex Fergusson: I think the balance is probably about right. Our Committees meet on Tuesdays and Wednesday mornings and the full Parliament meets Wednesday afternoons and Thursdays, that is the three day parliamentary week that we undertake. To be honest, whether we have got the balance right or not depends on the amount of legislation that is being considered, I think it is almost as simple as that, because the more legislation, the harder the pressure on the committees. I do remember at the end of the land reform legislation my Committee as it then was, the Rural Development Committee, were having to meet three days and nights a week on top of all our normal programmes for about the last couple of weeks in order to meet the tight legislative timetable that we had in front of us, but that was an extraordinarily complex and controversial piece of legislation so nobody objected to that but, I have to say, as convenor at the time I felt under some pressure just to make sure that we were getting this absolutely right.

  Q194  Alun Michael: It is often the case, is it not, that if something is in the news, the non-legislative debates or pressures on a particular subject area will be very often at the same time as legislative pressures?

  Alex Fergusson: Yes, that is probably absolutely right. What I would say though, just going back to my previous answer, is that I think we have learned a lot of lessons from those days. These were the early days of this Parliament and there was an understandable desire to process a lot of legislation in the very early days. We have learned a lot of those lessons, timetabling is now much more sensible and, although there will always be a lead committee on any piece of legislation, that committee can spread some of the scrutiny load out to other committees to bring forward their own reports, so that allows for a much more wide-ranging and time efficient use of committee time. As I say, I think we have learned the lessons on a sort of rolling basis that the early pressures put on us until we now have what I think most Members would consider to be a fairly satisfactory process.

  Q195  Mrs James: You mentioned earlier when you answered the questions on the Sewel Convention about some aspects of inter-parliamentary relationships. What formal and informal mechanisms do you have to create that relationship, not only with Westminster but with Belfast and Cardiff as well?

  Ken Hughes: If I deal with the official level and the Presiding Officer can do the political level. At official level there are annual gatherings at least, in fact more than one annual gathering, of clerks of the various parliaments and assemblies, which is a useful way to keep up contacts. Specific clerks do have contacts. The Justice Committee clerks will no doubt know your Justice Committee clerks to some extent. There are bilateral relations that go on. In terms of the Sewel Convention, I had contact very early on in the first session of the Parliament with one Mr Frank Cranmer. It was between us in the first instance and we wrote up an understanding whereby each of us would keep ourselves informed of Sewel motions going through the UK Parliament at the time. When the Scottish Parliament formalised things in 2005, that extended to a formal exchange of letters between the Clerk of the Scottish Parliament and the Clerk of the House of Commons confirming that the Scottish Parliament had indeed just passed a Legislative Consent Motion. That does not detract from the official intergovernmental communications, but we thought it would do no harm to set up a parliamentary process to that as well.

  Q196  Chairman: Could I just clarify that. Did that fully satisfy the Scottish Affairs Committee's recommendation about there needing to be a formal process from the Clerk to the Assembly to Westminster and vice versa?

  Ken Hughes: I think it satisfied that. What I think is still an outstanding issue, and I do not know because, again, that is for Westminster, is the suggestion of tagging bills at Westminster once they had received consent, and I do not know if that happens or not.

  Q197  Mrs James: What about Belfast and Cardiff? You talked about the relationship with Westminster, do you have formal relationships with Belfast and Cardiff?

  Ken Hughes: Yes, exactly on the same lines as I explained. When these gatherings take place Belfast and Cardiff will be there as well and, again, there are direct links between appropriate clerks of the committees, et cetera.

  Alex Fergusson: The Committee might also be interested to know there are a number of staff exchanges, particularly between the devolved parliaments and assemblies, which obviously strengthens all of these links, and I believe we are about to start doing staff exchanges with Westminster staff as well, which I would encourage from my own perspective. From the parliamentary point of view, we have a number of linkages. Probably the strongest with Westminster is through the BIIPB, the British-Irish Inter-parliamentary Body. We have the Commonwealth Parliamentary Association, and our branch in Scotland is very strong, and we have strong links with other devolved assemblies through that. From my own personal viewpoint as Presiding Officer, or Speaker, my counterparts in Wales and Ireland have agreed that we should meet two or maybe three times a year just to discuss items of mutual interest and plot how we can make life difficult for our members! I was very pleased to meet with the Speaker of the House of Commons and, indeed, with the Lords' Speaker. I was pleased to meet both at Westminster and to have welcomed them to the Scottish Parliament. There are a number of annual links and I have heard nothing to suggest that our relationships are not perfectly healthy, as you would expect them to be.

  Q198  Mrs James: So maybe the next stage would be to formalise them in some way. At the moment you think what you are doing is enough?

  Alex Fergusson: I do not see a great need to formalise them at the moment. Certainly from my fellow Speakers' points of view we now all know each well enough that if there was a need to get together that could be processed and put together fairly quickly. I do not know that it would be necessarily helped by a formal three times a year meeting or whatever, but if in the future there was a need to do that, I do not think that would be a problem at all.

  Q199  Chairman: Would I be wrong to suggest that outside the pool of Scottish Members of Parliament to Westminster, Westminster MPs do not actually meet MSPs very much?

  Alex Fergusson: I am sure they will do from an individual basis constituency-wise.

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