Devolution: A Decade On - Justice Committee Contents

Examination of Witnesses (Questions 229-239)


26 FEBRUARY 2008

  Q229 Chairman: We are a few minutes early but it seems a good idea to start as Mr Crawford is with us. We are very grateful to him for coming to give evidence to this sitting of the Justice Committee of the House of Commons. I thought I would start by asking you, Mr Crawford, whether you think that the processes which the Westminster and Holyrood Parliaments have in place for dealing with legislation where there is an overlap between the two systems are actually effective.

  Bruce Crawford: Thank you. Thank you very much for inviting me along this morning, it is very kind of you to do that. I know you are only here in Edinburgh for a short time but I hope you enjoy your visit. In terms of the process that you have explained, Chairman, in regard to the differences, I guess you are talking about the Legislative Consent Motion process and how we resolve issues around that. Helpfully, before the Queen's Speech was made to the House of Commons last year, we had a reasonable heads-up from the UK Government about what legislation would be coming forward and what material in that regard might have an impact on a Legislative Consent Motion. So we were pretty well prepared for any areas where the UK Parliament might want to legislate in areas which were of competence in the Scottish Parliament. Obviously, as time rolls on other material will come out of the woodwork in terms of other legislation that is being formulated at Westminster and we get information in due course and as time goes by in that regard. I think I have got a pretty reasonable relationship with the Scotland Office, particularly the Minister, David Cairns, in terms of managing the process of LCMs. We are almost a decade on from devolution and inevitably we feel that things could be done in a different way and a more appropriate way in terms of the Scotland Office, but in terms of the relationship that is there just now, in terms of the structure that is there just now, I think that works pretty well.

  Q230  Chairman: Has it been tested by your refusing a Legislative Consent Motion yet or saying that you would do if one was brought forward?

  Bruce Crawford: It has been tested as such in that there is always discussion that goes on between officials bilaterally and between ministers bilaterally in regard to an LCM as it progresses and the need for it and discussion around it progresses. There is a recognition, I think, by the UK Government that if we do not intend to pass an LCM in a particular area then they will not necessarily prosecute that to the level that you might expect. There is an acceptance that Scotland sometimes might have a different perspective. It has not been tested yet because we have not had an LCM which we have had to put before the Parliament where the Government would not have supported it. Of course, it is always possible in the Scottish Parliament for the opposition to put forward an LCM, and they could choose to do that at some stage, although that has not happened yet. In fact, the only point of conflict that I am aware of came about as a result of a gentleman we were talking about earlier in the shape of Jeremy Purvis, a Liberal who put forward an amendment to the dormant bank accounts Legislative Consent Motion that caused a bit of a ripple but, nevertheless, at the end of the day we had a conjoined position with the Labour Party on that occasion and the Tories to make sure the LCM was passed in the way we thought was fit.

  Q231  Chairman: In an earlier session this morning I referred to an example which had come up, partly to establish where the red lights flash in this system. It was an example of what is not covered by the Queen's Speech discussions. It was the Westminster Government's publicly announced intention in its Counter-Terrorism Bill to include provisions which enable cases involving terrorism to be taken out of the Scottish judicial system and tried in England, not necessarily with the consent of the Lord Advocate. Presumably there is some system where red lights flash and you say, "If we are going to do this we would have to agree to an LCM".

  Bruce Crawford: Yes. That system is about a process of continual dialogue from the minute we know about a bill that exists from the UK perspective. That dialogue happens between officials on an ongoing basis and then between ministers and between departments in a bilateral way. Every second week I have a discussion with David Cairns at the Scotland Office about where the pinch points are, about where the issues are, and to date these have been resolved amicably. I do think, however, the need for that particular office to sit in the Scotland Office is not as strong as it was in 1999 and there could be better co-ordinated and strengthened arrangements bilaterally between ministers and, indeed, a role for a government minister much more at the centre of government to help with the trouble-shooting that is currently done between myself and David Cairns. I am effectively saying that probably time has run out for the Scotland Office as far as that is concerned.

  Q232  Chairman: If that did not exist you would be talking to the leader of the House at Westminster and the Minister in the particular example I quoted, the Justice Minister, would be talking to the Justice Minister and the relevant officials on the same lines?

  Bruce Crawford: Correct. On the issue you raised, that discussion is already going on between the Justice Minister and the relevant counterpart at UK level. I think the Leader of the House still chairs the L Committee and that would be an appropriate place in terms of the legislative process for me to be engaged and a lot more effectively in terms of discharging business. Actually, it would remove a bit of the communication line that exists and allow a lot more discussion directly to the heart of Government. That is no disrespect to David Cairns, who has to work within the current system, and that works as well as it can for where we are.

  Q233  Alun Michael: I am tempted to think there is a comparison with communication between government departments in Whitehall here. I remember inheriting one bit of a government department that came over which was able to do away with the bit that spent all its time working out what the other department was doing. Is there not a stage before legislation which very often comes at the end of an internal process which can be driven by an election commitment or it can be driven by a ministerial leadership, or it can be delivered by departmental ownership, if you know what I mean, so that there is a need for contact much earlier down the line? You referred to yourself and David, for instance, trouble-shooting and that is where something has reached the stage of development where it needs that last minute intervention to almost rescue a situation.

  Bruce Crawford: There has not been much that has needed to be rescued yet but that relationship allows for that rescue job to be done if required. There is earlier discussion between officials on an ongoing, day-to-day basis and between ministers in a bilateral sense and an ongoing day-to-day basis. You would hope, and it normally does, that process would allow for the issues to be aired long before we get to the process of legislation being brought to the floor of the House of Commons but inevitably, because that is what government is like, it does not always work as smoothly as you would like and, therefore, there is always a bit of turbulence and bumpiness around as far as that is concerned.

  Q234  Alun Michael: Do you feel that it is developing in a positive direction in terms of, if you like, rescues being less frequently needed at the last minute?

  Bruce Crawford: I think it is because of the attitude we take to Legislative Consent Motions. We are not predisposed to being against Legislative Consent Motions because we have got the settlement we have got. We might like to see Scotland as an independent country but we have got a system that has got to work within the confines of the current constitutional settlement and, therefore, inevitably people who have got the best will of the Scottish people or, indeed, the UK at heart will do their best to make the system work and that is what goes on on a general basis.

  Q235  Alun Michael: You said in a recent article for BBC News Online that: "This is a new Scotland and it's a new politics". What did you mean by that? What is new about the politics?

  Bruce Crawford: Part of my role is not only being, in effect, the equivalent of Leader of the House as far as Westminster is concerned, but I also happen to be Chief Whip for the Government in Scotland. Certainly one thing that has changed is that you can no longer rely on the number of votes that you have to secure your majority. Managing a minority government on a day-to-day basis is an interesting challenge.

  Q236  Alun Michael: Tell me about it!

  Bruce Crawford: It means since you can no longer rely on the number of votes that you have got, you have got to rely on the quality of the argument that you can put forward to build an alliance on a coalition with different partners on the issue on a day-to-day basis depending on the merits. That has been good for Scotland. Perhaps by default we have got to the position that the Scottish people wanted in 1999 in terms of the Scottish Parliament election result by delivering something that is a lot more open and accountable because it has to be by the nature of it. For instance, on the budget, which I am sure some of you certainly, if not all of you, are aware of, the Conservatives voted for a budget in the Scottish Parliament and others abstained. That was three weeks ago now. Last week we had a debate on the future of the Scottish water utility where Labour and ourselves conjoined to have a majority in opposition to the Conservatives. On that same day we had a position jointly with the Liberals and the Greens on penal policy and how effectively we can use prisons. It is a lot more mixed up here than you might imagine in terms of finding the right solutions, but that is because things are being argued through on their merits. I guess the most important thing of the lot is the issue of how we engage with wider Scotland, particularly in the longer term. Obviously when you come into government you have got your manifesto to put into place and you have got to try to deliver as much of that as you humanly can, but there will be a requirement upon any government in the minority position we find ourselves in, and it is already beginning, to build alliances across civic Scotland in a way that other governments have not been required to do. That is a good thing, not just because it happens to be the arithmetic of the Scottish Parliament but it is what we should be doing anyway. If you look at some of the experiences of other minority governments, Denmark, for instance, and they have had a minority similar to what is happening in Scotland there for a number of decades, they have had a process inbuilt for a longer period in terms of consulting with the stakeholders in their communities probably going past consultation into participation, which is really what we have to be about, how we involve people in the future. It is interesting that they get an 85% turnout in their electorate and there are 65,000 members of the largest party in Denmark with a population the same size of Scotland. There are probably some lessons for us all to learn there.

  Q237  Alun Michael: It is very interesting that you are talking about participation but you started on the point of communication. Does the new politics that you have described require new journalism as well? In other words, how does the type of approach that you have described as having to take get communicated by the media?

  Bruce Crawford: I think the media found the advent of a Scottish Parliament/Government being in the SNP an exciting, new refreshing process for them because there is lots to report, as you might imagine, in the circumstances I have just described in terms of the way we have got to build majorities. I guess it is equally true of the media as it is of the politicians that it has taken a wee while for people to get to grips with the new reality of where we are. Some parties have been quicker at getting to grips with the new politics of Scotland than others and I guess that is the same for the media and understanding the processes. We have got a pretty forensic bunch up here in terms of the way they examine Scottish politics and the way they get into the detail and the majority are beginning to get there in terms of understanding the subtleties that are required to build majorities and keep a minority government on track. It has certainly given them lots to write about.

  Q238  Julie Morgan: I wanted to go back to the relationship with the Scottish Office and to ask you do you think Scotland does need a voice at the Cabinet level in the UK Government?

  Bruce Crawford: It certainly needs a voice at the centre of government in terms of the way it discharges business. This is one of the areas that the JMC, for instance, could be having a good look at, the JMC which obviously involves all governments from Wales, Ireland, Scotland the UK. There is a different view from Wales and Ireland in terms of where they see the future. Certainly the JMC mechanism, all of that mechanism, has to be looked at in the whole, whether it is the JMC, the Concordats, the Memorandums of Understanding or the issue of what standing an individual representing Scotland would have at a UK level.

  Q239  Chairman: It has not met since 2002, has it?

  Bruce Crawford: The JMC has not met since 2002. There was an expectation from the Memorandums of Understanding that it would meet on a yearly basis. I certainly think it could have met following the terrorist attack on Glasgow Airport. It could have usefully met to have discussed financial and Treasury matters. I think it could usefully have met to discuss issues around the foot and mouth disease outbreak that happened and some of the conflicts that existed between the UK and Scottish Government at that time. I think there is a real role for the JMC. The First Minister did write to the Prime Minister in August and to date we have had no response, but we have also had the recent appointment of Paul Murphy to be not only the Secretary of State for Wales but he also has got some responsibilities around the British-Irish Council and the JMC. There is other work that I think the JMC could usefully review at this stage. It could undertake a review of the Memorandums of Understanding and the Concordats. We think that there is an opportunity for a JMC Domestic to develop, for instance, where there would be an opportunity for wide-ranging issues to be discussed before any plenary session. I am aware that the Cabinet Secretary for Education and Lifelong Learning has suggested that there needs to be a JMC for families, benefits and employment. There is an opportunity for the JMC in a plenary organisation to review that sort of activity. There is also the UK Statistics Bill, which is a bit deep here, folks, forgive me, which I understand will have an impact on the Concordat that is being drawn up for the JMC Europe and, therefore, that will need to be reviewed anyway. So there is a bit of work that could be done by the JMC in that regard as well as looking at the general issue of overarching agreements of the Memorandums of Understanding and the Concordats after almost a decade of devolution. It can only be right that after that length of time we begin to look at them and review them. The whole thing needs to be done as a package to look at everything properly.

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