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PR/S2/05/R7

7th Report, 2005 (Session 2)

The Sewel Convention

Volume 1: Report

Remit and membership

Introduction

Origins and development of the Convention
Sewel motions to date
Scope of the inquiry and evidence considered

Views of witnesses

General views of the Convention
Formalising the existing process
Role of Government and Executive
Early notification
Timing of Sewel scrutiny
Information required for scrutiny
Wording of Sewel motions
Monitoring and further scrutiny
Consent for changes in competence
Circumstances where it is appropriate to use the Sewel process
Case for a specialised committee
Debates on Sewel motions
Possible changes to Westminster procedures

Conclusions and recommendations

General status of the Convention
The Convention in practice
Putting the Parliament’s Sewel procedures in context
Early warning mechanisms
An enhanced role for the Executive memorandum
Timing of Executive memorandum
Content of the memorandum
Committee consideration
Legislative consent motions
Monitoring and further scrutiny
Changes to Westminster procedures
Recommendation

Summary of conclusions

Annexe A: Proposed changes to standing orders

Annexe B: Extracts from Minutes of Procedures Committee

Volume 2: Evidence

Annexe C: Oral evidence and associated written evidence

Annexe D: Other written evidence and correspondence

Annexe E: Notes by the Clerk to the Procedures Committee

Annexe F: Links to relevant documents

Remit and membership

Remit:

The remit of the Procedures Committee is to consider and report on the practice and procedures of the Parliament in relation to its business.

(Standing Orders of the Scottish Parliament, Rule 6.4)

Membership:

Mr Richard Baker
Chris Ballance (from 22 June 2005)
Mark Ballard (until 22 June 2005)
Cathie Craigie
Karen Gillon (Deputy Convener)
Donald Gorrie (from 22 September 2005) (Convener)
Alex Johnstone (from 6 September 2005)
Mr Bruce McFee
Jamie McGrigor (until 28 July 2005)
Iain Smith (until 14 September 2005)

Committee Clerking Team:

Clerk to the Committee
Andrew Mylne

Senior Assistant Clerk
Jane McEwan

Assistant Clerk
Jonathan Elliott

The Sewel Convention

The Committee reports to the Parliament as follows—

Introduction

1. Since Lord Sewel first articulated, during the passage of the Scotland Bill in 1998, the case for a convention to manage the legislative boundary between Westminster and the new Scottish Parliament, the process that has developed under his name has become a subject of ongoing controversy among politicians, the media and academic commentators. 

2. A principal criticism has been that the convention has been over-used, with nearly as many Sewel motions passed as there have been Acts of the Scottish Parliament (ASPs).  A related perception is that powers are being “handed back” to Westminster, and that use of the Sewel process is a kind of “counter-devolution”.  In some instances, the criticism has been that the convention has been used inappropriately, to impose a general UK solution on a subject where a distinctively Scottish approach would be preferable.  More recently, Lord Sewel himself (among others) has suggested that what was originally meant to be an inter-Parliamentary convention has instead been “hijacked” by government, and used for purposes for which it was never intended.

3. Within the Parliament, the lack of formal procedures to govern the process has also been criticised on grounds of transparency and accountability.  Concerns have been expressed about a shortage of information, insufficient time for scrutiny and debate, and uncertainty about the implications of Sewel motions being agreed to. 

4. We believe that it is in no-one’s interests for a significant aspect of the Parliament’s business, and its principal interface with the Westminster Parliament, to be so dogged by controversy and misunderstanding.  We also believe that, after six years of experience, the time is right to embed this aspect of the Parliament’s business within its formal procedures.

5. Our aim in this Report is therefore twofold.  At a procedural level, locating the current, largely ad hoc, procedures within the framework of the Rules should enable better information to be made available, at an earlier stage, to members and the public, enhancing the opportunities for scrutiny and increasing understanding of the implications of the Parliament’s decisions.  In so doing, we hope to give the Parliament shared ownership in what has hitherto been regarded as a device used by and for the Executive alone. 

6. At a political level, there is a broader goal – to secure a degree of consensus about the general need for procedures of this sort and a shared understanding of when and how they should be used, and at the same time lay to rest some of the persistent misunderstandings that have arisen.  It is certainly not our purpose to suppress the legitimate wider debate about the nature and direction of devolution, but we hope that by putting in place an agreed structure for the operation of this convention, decisions to use it in particular instances can largely be detached from this wider constitutional debate.  In this way, the main focus can be on where legitimate differences will always arise – about what are the best policies for Scotland, and about the most appropriate means of delivering them. 

Origins and development of the Convention

Lord Sewel’s original formulation

7. What has become known as the Sewel Convention originated with remarks made by Lord Sewel, the junior Scottish Office minister responsible for steering the Scotland Bill through the House of Lords, in July 1998.  Referring to the provision in the Bill (now section 28(7) of the Act) that asserts Westminster’s continued right to legislate for Scotland on devolved as well as reserved matters, he said:

“We [the Government] envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament.  However,  … we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.”1

8. From the outset, then, this was to be a political convention rather than part of the legal machinery established by the Act.  It was to be invoked primarily on grounds of convenience, and in relation to legislation on devolved matters, but used (at least normally) only with the Parliament’s consent.  The details of how and when this consent was to be obtained were not elaborated at the time.

The Convention as defined by government

9. In practice, the convention was developed almost entirely at governmental level.  It took formal shape in the Memorandum of Understanding (MOU) between the UK Government and the devolved administrations (the Scottish Executive, the Welsh Assembly Cabinet and the Northern Ireland Executive).2   These have been supplemented by a series of “Devolution Guidance Notes”, of which DGN 10 (Post-Devolution Primary Legislation affecting Scotland) is the most important in this context.3  These documents are intended to be advisory but not legally binding on the parties to the MOU.

10. DGN 10 consists of guidance to UK departments and explains what they need to do to give effect to the “policy intention” agreed in the MOU.  It states that “although the convention refers to the Scottish Parliament, UK departments will in practice deal with the Scottish Executive … It will be for the Scottish Executive to indicate the view of the Scottish Parliament and to take whatever steps are appropriate to ascertain that view.”   In general, “consent need only be obtained for legislative provisions which are specifically for devolved purposes, although departments should consult the Scottish Executive on changes in devolved areas of law which are incidental to or consequential on provisions made for reserved purposes” (paragraph 2).  However, the category of provisions for which Sewel consent is needed (“category III”) is defined also to include provisions that, while not for devolved purposes, confer new powers on the Scottish Ministers or alter the legislative competence of the Parliament (paragraph 4).4  Legislation dealing with emergencies or which is “similarly exceptional” is excluded altogether (paragraph 1).  

11. DGN 10 goes on to state that, with any Bill that contains category III provisions that are of “major significance” in the Bill, it “should be possible to confirm at Second Reading that the Parliament has consented”.5  With less significant category III provisions, consent may be secured later, with the “absolute deadline” being “the last opportunity for [the provisions] to be amended while the Bill is before Parliament” (paragraph 9).6

12. Because DGN 10 is directed at Whitehall departments, it is mainly concerned with Government Bills.  But it also sets out what needs to be done under the Convention before the Government can support a Private Member’s Bill (PMB).   Recognising that the procedures for such Bills “are less certain than for Government Bills”, the aim is only to secure consent by Committee Stage in the Commons, and until then the Government “may need to reserve its position” (paragraph 15).7

13. Finally, DGN 10 describes what should happen where amendments to Bills (whether Government Bills or PMBs) trigger the need for consent, either by introducing category III provisions for the first time, or by taking the Bill beyond the scope of consent already given.  Here, too, it is for the Executive to indicate the Parliament’s view.  Recognising the “exigencies of legislative timetables”, the expectation is that “the absence of consent should not be a bar to proceeding with the Bill” until the final amending stage is reached (paragraph 18). 

The process within the Executive and the Parliament

14. While the MOU and DGN 10 set the framework for UK departments, the Executive has taken the lead in developing the Scottish end of the process.  This involves Executive departments routinely liaising with Whitehall to identify where proposed Westminster Bills might impinge on a devolved matter, or might provide a suitable vehicle for implementing Executive policies.  Once agreement is reached at Ministerial level to seek the Parliament’s consent, a memorandum describing the relevant provisions is prepared and sent to the relevant subject committee (which should in any case be notified as soon as possible after the Bill is introduced).  A “Sewel motion” is then lodged, and the Parliamentary Bureau invited to allocate time in the Chamber for it to be taken, either formally or after debate.  If the motion is agreed to by the Parliament, the resulting Sewel resolution gives Westminster the formal go-ahead that the Convention requires.

15. This process is not currently governed by standing orders, except to the very general extent that Sewel motions are subject to the same Rules as other motions.  In particular, the Executive memorandums have no formal status as Parliamentary documents, and as such cannot be formally referred to committees by the Bureau or by the Parliament, in the same way as other categories of business (Scottish Parliament Bills, SSIs etc.).  It is therefore left to the Minister for Parliamentary Business, in consultation with other business managers, to decide matters of referral and timing, without the normal safeguards of weighted voting or Parliamentary endorsement.  One of the results of this informality of process is that much of what is involved each time the Executive seeks the Parliament’s consent under the Convention is invisible to the Parliamentary record.  This makes it difficult for members or the public to be aware of each such instance, or to track their progress through the Parliamentary system.

16. During the first few years of the Parliament, practice gradually evolved and developed.  At first, Sewel scrutiny was limited to debates in the Chamber, but it then became more common for the main scrutiny to take place in a committee, with a further Chamber debate (in addition to the moving and disposing of the motion) only where recommended by the committee.  The limited time available to committees, however, meant they were usually able only to question the relevant Executive Minister and officials.

Consideration by Session 1 Procedures Committee

17. The Procedures Committee briefly considered the procedures associated with Sewel motions in mid-2002 on the basis of a paper from officials, which explored in particular the implications of Sewel motions being refused or amended, and of subsequent motions qualifying or withdrawing earlier consent.8  This paper prompted memorandums from both the Executive and the Scotland Office.  The Executive memorandum (January 2003), as well as reiterating the Executive’s established position on the purpose and operation of the Convention, included some proposals for reform.9  The most significant of these was to push back the normal deadline for obtaining the Parliament’s consent from Second Reading to the last amending stage in the first House (i.e. Report Stage in the Commons or Third Reading in the Lords).  This was intended to give the Parliament, and committees in particular, more time for scrutiny, but on the understanding that it allowed the first House to agree the principle of a Bill for which the Parliament’s consent was needed without knowing whether such consent would be forthcoming.

18. The Procedures Committee returned to the topic in its major report on the Parliament’s founding principles (3rd Report, 2003).  There it noted two alternative perspectives on the Convention – as either a self-denying ordinance on Westminster’s part that protects the Parliament’s right of legislative initiative, or as a diversion of that legislative initiative away from the Parliament, with a corresponding reduction in the accountability of the Executive (paragraph 392).  In relation to the Parliament’s procedures for handling Sewel motions, the Committee found “some lack of clarity over the way such motions arise; surprise over the number of motions to date; and important issues of detail about the procedure for such motions and implications implicit in that procedure” (paragraph 393).  Recognising that it did not itself have time to consider the topic in detail before the end of the session, the Committee recommended “implementing sensible improvements without delay”, including those suggested in the Executive’s memorandum. 

Initial consideration by current Procedures Committee

19. When the current Committee was established, therefore, there was already an expectation that we would conduct an inquiry into the Sewel process at some point.  As a first step, we invited the Bureau in June 2003 to review existing practices for the referral and timetabling of Sewel motions, pending any inquiry.  This led the Executive to prepare a supplementary memorandum (August 2003), which confirmed that the change proposed in the January memorandum in relation to the deadline for obtaining consent had since been adopted.  The memorandum also noted that, towards the end of Session 1 “a situation was reached in which very few Sewel memoranda were being referred to committees at all”, and proposed a return to the earlier practice of routine committee consideration.  

20. The Presiding Officer wrote to the Committee, on behalf of the Bureau, in September 2003, reporting that the Bureau (having considered the Executive’s supplementary memorandum) had “agreed that the continued approach will be for all Sewel motions to be considered in committee and for time to be allocated for a short debate in the Chamber if there are concerns that the Committee felt had not been satisfactorily addressed … [or] should any Bureau member request it.”

Other commentary and analysis

21. As already noted, the Sewel process has attracted a great deal of comment over the years, both in political and media circles.  There have also been a number of academic analyses, including attempts to categorise Sewel motions in various ways and more general reflections on the constitutional issues raised.10 

22. The main contribution from a Westminster perspective has come from the House of Lords Constitution Committee in a report on the implications of devolution published in December 2002.  The Committee expressed concern that that Sewel consent is “very often in the nature of a blanket permission – a ‘blank cheque’”, since the Parliament “cannot propose amendments or, it appears, make its consent conditional on desired changes being made to the UK bill. It also gets no opportunity to consider the UK bill again, even if that has been the subject of extensive amendments”.  It also recommended that “communication should be between the UK Parliament and Scottish Parliament, not mediated by the executives at each end … in the interests of promoting a proper separation between the executive and the legislative functions”.11

23. However, the Government rejected this recommendation on the grounds that “it is entirely appropriate that the Government and the Scottish Executive should communicate on whether or not to legislate on a devolved matter” (citing the evidence given by the Minister for Parliamentary Business to the Session 1 Procedures Committee).

Concerns raised by other committees

24. The Enterprise and Culture and Justice 1 Committees wrote separately to the Committee, in April and June 2004 respectively, to express concern about aspects of the current informal Sewel process – particularly in relation to timing constraints and the lack of feedback from and engagement with the Westminster process.    Both letters are reproduced in Annexe C.

Sewel motions to date

25. During Session 1, 39 Sewel motions were agreed to by the Parliament, relating to 38 Westminster Bills.12  So far during Session 2 (up to 27 September 2005), there have been 22 motions relating to 22 Bills.  All the motions have been lodged and moved by Executive ministers; all have been agreed to (in all but one case without amendment).13

26. Of the Session 1 motions, 28 were debated in the Chamber only, without prior consideration by a committee, while the other 11 were first considered by a committee (and then, in most cases, disposed of formally in the Chamber, without further debate).  This Session so far, only two have been considered in the Chamber only.14  Of the remaining 20, six were considered at more than one committee meeting and all but two were debated again in the Chamber (rather than moved formally).15 

Scope of the inquiry and evidence considered

27. The inquiry was launched in January 2005.  A call for evidence (reproduced in Annexe D) was published, setting out some initial questions witnesses were invited to consider, with a closing date in April.

Oral evidence

28. During March, April and May, we took oral evidence from:

  • Rt Hon Henry McLeish and Lord Sewel – both former Scottish Office Ministers during the passage of the Scotland Bill;
  • Mrs Anne McGuire MP, then Parliamentary Under-Secretary of State in the Scotland Office, plus officials;
  • Alasdair Morgan MSP and Pauline McNeill MSP – former convener of the Enterprise and Culture Committee and convener of the Justice 1 Committee respectively;
  • Alistair Carmichael MP – on behalf of the Liberal Democrats in Westminster16;
  • Scott Barrie MSP, Tricia Marwick MSP, Bill Aitken MSP, George Lyon MSP, Mark Ballard MSP and Margo Macdonald MSP – on behalf of the Scottish Labour Party, the Scottish National Party, the Scottish Conservative and Unionist Party, the Scottish Liberal Democrats, the Scottish Green Party and the Independents Group respectively;
  • Dr Paul Cairney, Department of Politics and International Relations, University of Aberdeen;
  • Professor Alan Page, Department of Law, University of Dundee; and
  • Margaret Curran MSP, Minister for Parliamentary Business, plus officials.

29. Many of those witnesses also sent written submissions.  Further written evidence was received from politicians, academics, voluntary organisations and members of the public:

  • Peter Duncan MP (then Shadow Secretary of State for Scotland);
  • the Clerks of the House of Lords and House of Commons;
  • the Enterprise and Culture Committee;
  • the Justice 2 Committee;
  • the Scottish Socialist Party;
  • Dennis Canavan MSP;
  • Professor Michael Keating, Professor of Politics, University of Aberdeen and European University Institute, Florence;
  • Alan Trench, Honorary Senior Research Fellow, University College London;
  • Barry Winetrobe, Lecturer in Public Law, University of Glasgow;
  • Dr Jeff William Justice, Visiting Assistant Professor of Political Science, Texas Tech University;
  • the Scottish Council for Voluntary Organisations (SCVO);
  • Rev Robert Anderson;
  • Dr David Stevenson; and
  • Alice Watson.

30. The Committee is grateful to all witnesses for the evidence they submitted.

views of witnesses

General views of the Convention

Need for the Convention

31. There was widespread agreement among witnesses about the importance of the Sewel Convention in the context of an asymmetrical devolution settlement that left intact Westminster’s legal right to legislate for Scotland.  For example, Alan Trench described it as “a practical necessity, such that if it did not exist it would be necessary to invent it” (w 25), while the Scottish Socialist Party (SSP) said it was of the “utmost importance”, since the Parliament’s powers “would be negated and worthless if Westminster could legislate at will on devolved matters” (w 1).17 

32. Lord Sewel himself put it like this:

“Within the constitutional framework of devolution, something like the Sewel convention is absolutely essential to mediate the relationship between the sovereign United Kingdom Parliament and the devolved and subordinate territorial Parliament. Without such a procedure, we would open up the possibility of all sorts of frictions developing and issues about who legislates where and for what, even in relation to devolved subjects” (col 836).

33. The Executive described the Convention as “an important constitutional safeguard which reflects and respects the devolution settlement and operates to the benefit of the people of Scotland” (w 4).  The Government, similarly, said that “the continuation of the Convention is vital to the success of devolution. It enables pragmatic solutions to be reached in a timely fashion while simultaneously respecting the competence of the Scottish Parliament” (w 8). 

34. The other parties mostly agreed that the Convention, or something like it, was a necessary feature of the relationship with Westminster, but they had various concerns about how often and in what circumstances it had been used, and about the informality of the current scrutiny process.

35. Peter Duncan said that while Conservatives supported the Convention in principle, there were too many Sewel motions and “more than a hint that they are being used for political expediency and in an inconsistent manner” (w 2).  Bill Aitken attributed this to “the excoriating experience of the section 28 debate”, as a result of which the Executive “has, from time to time, sought to pass the buck to Westminster on matters that are more the concern of Holyrood” (col 917).  

36. Speaking for the SNP, Tricia Marwick said she would prefer the Parliament “to legislate to the full extent of its powers” but that where Sewel motions were used, the key was ensuring that consent was informed.  She felt that the present informal procedures, although much improved since 1999, remained inadequate.  (cols 961-2). 

37. Scott Barrie, for the Labour group, broadly supported the Convention, but wanted the Parliament more involved in the process, and wanted scrutiny to be more rigorous and more focussed on policy issues (col 963). 

38. The Liberal Democrats supported the Convention in principle and, although they had some concerns about the procedures for handling Sewel motions, did not feel they were being overused (cols 918, 923).  Similarly, the Green view was “that as long as both Westminster and Holyrood have the power to legislate on devolved issues, we need something like the Sewel convention” (col 934).   

39. Of all the MSPs who gave evidence, Dennis Canavan was perhaps the most critical, saying that Sewel motions were used too often and as a way of restricting scrutiny or avoiding controversy, which he described as “an abrogation of responsibility” (w 5).  Margo Macdonald, while she agreed that there had been “far too many” Sewel motions, accepted that “it was entirely sensible to have a mechanism such as the Sewel Convention while there are two Parliaments that have jurisdiction in Scotland” (cols 932-3).

40. Academic witnesses generally accepted that Sewel motions were likely to remain a routine feature of Parliamentary life, but wanted to see the associated procedures and practices improved.  For Professor Page, the challenge was “the familiar one of subjecting executive action to effective parliamentary control”, and he saw better information and more time as key issues (w 2, 4).   A better scrutiny process might, in his view, “operate as a disincentive to relying on Westminster to deal with issues of major controversy” (col 950).  Both he and Dr Cairney felt that the controversy around the process had been disproportionate, given that many of the Bills involved had only a minor impact on devolved matters (cols 946-7). 

41. Barry Winetrobe called for a flexible and robust process that better reflected the Parliament’s founding principles, seeing a need for procedural reform at Westminster as well as at Holyrood to achieve this.  What made Sewel motions particularly problematic for him was that it led to devolved provisions being considered “in the very place, and by the very procedures, whose perceived failings were a justification for both devolution and for the devising of Holyrood’s own legislative process” (w 13). 

42. A similar concern was expressed by the Scottish Council for Voluntary Organisations which felt that “the pragmatism behind the concept of Sewel motions … should not distract from the fact that they inevitably reduce the ability of the Scottish public to engage in the democratic process” (w 4).

Frequency of use

43. A number of witnesses referred to criticism that Sewel motions had been used more often than originally expected, but this was not supported by the evidence of those directly involved at the time the Convention was announced.  According to Henry McLeish, the original concern behind the Convention was about securing a concession in relation to Westminster’s parliamentary sovereignty, rather than about creating a practical mechanism; as a result, he said, “we did not ask how many times the Sewel convention might be used or what kind of issues it might be used for” (col 833).  Lord Sewel endorsed this, saying: “To be honest, when we considered the issue, we did not have the faintest idea of how often the motions would be used. We were looking into a darkened room, towards something that did not exist” (col 836).

44. Dr Cairney also felt that criticism based on the numbers was misplaced.  As he put it, “Sewel motions have been used more frequently than envisaged – but then again so has email!”  For him, it was “a question of priorities. If the Scottish Parliament wants to consider the issues itself, then it must find more time or stop considering another issue” (w 7).  He thought it was particularly misleading to compare the number of Sewel motions with the number of Acts the Parliament had passed, since “many if not most Sewel motions are innocuous and apply to small parts of legislation” (w 3) – a point also made by Henry McLeish, who described the comparison as “inane” (col 822).

45. Mrs Curran denied that the mechanism had been overused, saying she had reviewed all the Sewel motions so far and stood by the decision taken in each case.  For the Executive, Scottish Parliament legislation was always the preferred route and accounted for “the vast bulk of primary legislation on devolved matters”. Where the Sewel route had been used, it was generally for provisions that, “while beneficial, have been quite limited in nature” (cols 985-6, w 7). 

“Handing back” powers

46. Ministers were also keen to counter what they saw as the misconception that Sewel motions involved “handing back” devolved powers to Westminster.  According to Mrs McGuire, the Convention was “not in any way a derogation of the competence of the Scottish Parliament; the Government that created devolution is not about to undermine it” (col 851).  The Executive made the same point, adding that “the Scottish Parliament remains free to legislate on the same issue itself on another occasion if it wishes to do so” (w 9).  The Convention, in its view, “allows Scotland to have the best of both legislative worlds at Westminster and at Holyrood: without it, the stark choice would be to do without worthwhile legislation or to put aside our own legislative priorities to make room for a separate Scottish Bill.” (w 14)

47. But Dr Cairney was not entirely convinced of this optimistic picture of Sewel as a win-win situation for the Parliament.  While that was part of the picture, he saw at least two other relevant arguments, one of which regarded the Convention as merely “a sop” to the Parliament, and another as “an abuse” of a devolution settlement based on the presumption that the Parliament would deal with devolved matters (w 10).  This last view was endorsed by Dr David Stevenson, who said that it “casts doubt on the point of devolution if decisions are continually referred back to London” (w 2).

Formalising the existing process

48. Many witnesses wanted to see existing informal procedures given a more established foundation.  This was certainly the view of academic witnesses, who all advocated a clear process set out in standing orders.  According to Professor Page, the procedure was “far from clear”, with “too heavy a reliance on ministerial assurances and not enough on rules” (w 4).  To him, “the need for more searching forms of scrutiny has long been apparent, and has not been met by the essentially minor adjustments we have seen so far” (w 17).

49. Alan Trench’s study of how devolution had affected the working of government suggested that, as he put it, “the system continues to rely heavily on informality and goodwill, against an overall background of political consensus”.  Most of the discussion took place in private among officials, while “legislative procedures and processes in Whitehall have changed only minimally and incrementally as a result of devolution” (w 4, 5).  In his view,

“The effect of greater formality in the process of considering and passing a Sewel motion would be to force UK Government departments, and UK ministers and officials, to turn their minds sooner and more systematically to devolution questions.  If they had to accept that consent under the Sewel convention was harder to obtain or more limited in scope than it sometimes is at present, they would only use the convention when there was a pressing reason to do so – not out of confusion, laziness or accident, as appears sometimes to be the case at present” (w 16).

50. Henry McLeish recognised that the convention had developed in politically-favourable circumstances that might not endure indefinitely: “one of the challenges is to ensure that backing for the Sewel convention is not based solely on good will” and was “constitutionally safeguarded” (col 821).  The Minister for Parliamentary Business agreed that it would be worth examining some embedding of procedures to ensure they would still work “should that good will ever evaporate” (col 988). 

51. Tricia Marwick said that the Parliament had so far “relied on an ad hoc procedure and on business managers working together”.  She felt it was now “time to enshrine some of that in standing orders”, while being “careful not to over-complicate the system” (col 969).  Mark Ballard also advocated formalising current ad hoc procedures, saying that it “would enable us to move away from some of the procedural wrangling and get into the real political discussion” (col 935).

52. George Lyon, however, did not wish to see the procedure set down in standing orders, believing this would be inconsistent with “the need to retain flexibility” (col 921), though he also thought the Convention would need to be “pretty robust” to stand up to the rigours of a Government and Executive of different parties (col 929).  Margo Macdonald agreed, saying that “we should keep it flexible, as we will want to duck and dive in that situation” (col 943).  For Bill Aitken, the risk was that “being too rigid in our approach could cause more problems than it solved” (col 921).  Pauline McNeill advocated “a more systematic approach”, but felt that enshrining procedures within the standing orders would be difficult and probably something for “far into the future” (col 875). 

53. Dennis Canavan argued that, because the Convention was “merely an understanding between the current Scottish Executive and the current Government at Westminster”, it offered “no protection against change or abuse” by future Executives or Governments (w 1).  But Professor Page and Dr Cairney were not convinced that different administrations would necessarily precipitate a crisis in the Convention.  As Professor Page put it, “the impetus for reform in many areas comes from UK departments … [and] although not every Executive would respond to the question in the same way, there would still be the same pressure to sign up for to UK reforms … that appear to be desirable” (col 958). 

Role of Government and Executive

54. Before our inquiry began, Lord Sewel had provoked comment by suggesting that a process “which is, after all about the relationship between the two Parliaments … has rather unintentionally been hijacked by the Executive”.18  In his written evidence to us, he suggested that “the entire process … should be comprehensively reviewed so as to assert the central role of the Parliament”.  While initial discussions between Government and Executive were “absolutely essential, right and proper … legislating is a parliamentary process, which is why it is important to have parliamentary involvement all the way through” (col 847).

55. Henry McLeish largely agreed.  He thought it would be difficult for the Parliament to develop a direct relationship with Westminster (“Westminster just does not do that”), but that it could assert greater control over its own process, so it was no longer “just on the fringe of the interface between the two Governments” (cols 821, 829).  Barry Winetrobe also called for the operation of “the Convention to become more parliament-centred, rather than executive-driven”, endorsing views expressed by Lord Sewel and by the House of Lords Constitution Committee.

56. Alistair Carmichael felt that, “while the links between the Scottish Executive and the Government in Whitehall seem to function fairly smoothly, there is no formal means for the Parliaments to speak to each other.  Given that the passing of a Sewel motion is in the gift of the Scottish Parliament this seems curious” (w 4).  

57. But the Government and Executive, perhaps not surprisingly, defended their central role under current arrangements. The starting point for Anne McGuire was that “the reality of government, both in Scotland and in the United Kingdom, is that the legislative programmes are driven by the Executive arm” (col 853).  Margaret Curran took a similar line, saying that “you cannot deny the authority of the Executive or the Westminster Government to introduce legislation. That is our function and purpose” (col 986).  Both Ministers also stressed the cooperation and routine liaison that went on at official level, and the need for flexibility in view of the different legislative cycles and procedures of the two Parliaments. 

58. This view was given some backing by Dr Paul Cairney, who pointed out that “even the Consultative Steering Group principles contain the idea that the Government governs.  The Executive produces most of the legislation and the Parliament scrutinises and gives consent to it.  It makes sense for the Sewel process to run along the same lines.  … If we were being honest, we would say that the parliamentary system has its limitations; the Parliament cannot do everything and so has to take that step back” (cols 957-8).

59. The political parties were divided.  George Lyon of the Liberal Democrats thought that issues about how to handle legislation “will always be Government to Government, rather than Parliament to Parliament. That is the practical reality of where we find ourselves, and I do not think that that will change” (cols 929-30).  Bill Aitken, for the Conservatives, took a similar view (col 930).  But Tricia Marwick, for the SNP, was more doubtful, pointing out that committees and MSPs were “wholly dependent on information from the Executive” while “the time that is given to committees and the Parliament is – again – almost wholly a matter for the Executive” (col 962).    The SSP called for “a convention between the two parliaments”, suggesting that Sewel motions should require a higher threshold of support (two-thirds of MSPs, or a simple majority including MSPs of at least four parties).  

60. The Clerks of the two Houses saw the Convention as “part of the overall concordat governing relations between Her Majesty’s Government and the Scottish Executive”.  As such, they said, it had “no bearing on the powers of Parliament” and “little effect on procedure in either House” (w 1, 5).

Early notification

61. Witnesses speaking on behalf of committees stressed the importance of an “early warning system” to enable the time required for scrutiny to be factored into committees’ forward work programmes (col 868).  Pauline McNeill said that she sometimes didn’t hear about a Sewel motion until she was asked to decide whether her committee could consider it – which would then require other business to be rearranged.  Alasdair Morgan felt that a UK Government that was “benevolently disposed to the relationship between the two Parliaments” should be able to provide advance information about the likely timetable for a Bill (col 871). 

62. Business managers also wanted more advance notice.  According to Tricia Marwick, “the first notification that the Parliamentary Bureau members get about a Sewel motion is a draft timetable for the business that is coming up in the following few weeks” (col 966).  George Lyon agreed, seeing it as the responsibility of the Minister for Parliamentary Business to alert the Bureau earlier, so that a lead committee could be identified in time for it to scrutinise the proposal and, if necessary, report on it (col 922). 

63. The SCVO thought it “especially important” to flag up Sewel motions well in advance of the passage of the relevant Bills through Westminster.  The Justice 2 Committee wanted to “have an opportunity to scrutinise forthcoming UK bills when they are put out to consultation, which would allow the committee to take a more proactive role at an earlier stage of the development of legislation”.  The SSP, similarly, wanted MSPs to be sent consultation documents on any Bill considered appropriate for a Sewel motion, so that their objections and suggestions could be taken into account at the drafting stage of the Bill.  This would encourage “a consensual approach to the passage of Sewel motions” (w 4). 

64. The Minister pointed out that advance notice had been given, after the Queen’s Speech in the 2004-05 Westminster session, by means of a written answer to an “inspired” Parliamentary Question (PQ) – “as a result, members knew what playing field they were on, what the Executive’s intentions were and what work we were trying to progress, regardless of whether they agreed with us” (col 981). But she acknowledged that some members would not have seen the written answer, and was open-minded about other ways of getting the information to committees and MSPs generally, including perhaps an oral statement in the Chamber (col 984).

65. Professor Page suggested that the inspired PQ could be replaced by a second legislative programme statement in which the Executive would outline “those elements of the Queen’s Speech to which it proposes to subscribe”.  Debate on such a statement “might generate more heat than light, given the sensitivity which attaches to this issue, but it should also help identify those bills that are thought to merit close scrutiny” (w 6).

Timing of Sewel scrutiny

66. The evidence acknowledged the difficulties of timing scrutiny in the Scottish Parliament to fit in with a variable process driven by the Westminster timetable. 

67. For some witnesses, the priority was feeding in the Parliament’s view at an early stage.  Lord Sewel suggested that “in order to ensure that Scottish interests are properly taken into account at Westminster, the Sewel motion should be agreed between the first and second readings.”  Alistair Carmichael MP agreed that the initial consent should be given “sooner rather than later” (col 886).  Dennis Canavan said that for Westminster to begin legislating without first securing the Parliament’s consent demonstrated a lack of courtesy or even treating the Parliament “with disdain” (w 6).  The Rev Robert Anderson said that “Sewel requests should be made early on in the Westminster parliamentary process and should never be an afterthought just as a Bill is reaching its final stages” (w 6).

68. But for others, the main concern was to allow the Parliament, and in particular its committees, enough time for scrutiny before the decision on a Sewel motion was taken.  As Alasdair Morgan pointed out, if consent was expected by second reading in the first House, the time available for committee consideration would be very limited: “With the best will in the world, how is a committee of the Scottish Parliament going to be able to examine the bill, summon people to give evidence, prepare a report and deliver it to Parliament in the two weeks between publication of a bill and its second reading?” (col 874).

69. His former committee, the Enterprise and Culture Committee, gave the example of the National Lottery Bill, where it was only able to take evidence from the Executive, just two days before the Sewel motion was taken in the Chamber (w 1).

70. Speaking for the UK Government, Anne McGuire MP endorsed the new, later deadline for securing the Parliament’s consent, which had allowed “a lot more opportunity for discussion and comment” (col 856).  She also emphasised the “need for flexibility so that the Executive and Parliament's consideration of Sewels and the UK Parliament's programme do not lose touch” (col 852).  Although the two Parliaments had different legislative cycles, “the difference is now only a matter of a few weeks during the summer when there is a long recess. The other recesses are a bit more manageable. The preparation work that is done helps us to manage the two cycles and ensures that the Scottish Parliament has adequate time to consider the issues” (col 857).   

Information required for scrutiny

71. A number of witnesses commented on the information provided in Executive memorandums.  George Lyon felt they were sufficient in some cases but “more substantive motions require more detailed information, which should include copies of the Westminster Bill with the relevant provisions highlighted” (col 919).  The SSP also felt that the memorandums “whilst helpful are not sufficient.”  The Justice 2 Committee said they “should contain as much information as possible and should be available as soon as possible” (w).  Mrs Curran was receptive to these comments: “If our memoranda are not focused and tight enough, we must give that immediate attention” (col 992).

72. Mrs McGuire cited the Civil Partnerships Bill as an example of where practical joint working had enabled scrutiny to be kept well informed.  There had been parallel consultations on the policy by Whitehall and the devolved administrations, followed by close liaison at official and Ministerial level, with the Scotland Office acting as the bridge between the lead department and the Executive.  She had also held meetings with interested MSPs, and given them feedback on progress as the Bill moved through the Westminster process (cols 861-2). 

73. Pauline McNeill, one of the MSPs involved, agreed that the private meeting with Mrs McGuire, and a letter from the lead UK minister, had been helpful in enabling her committee to become more involved – but while this a better example of scrutiny under current arrangements, “the process was not perfect by any manner of means” (col 868).

Wording of Sewel motions

74. Witnesses differed on what the Parliament’s scrutiny was about – and hence on how Sewel motions should be expressed.  The Executive generally favoured more prescriptive motions in preference to “a sort of sweeping agreement to the Bill” (col 994).  Alasdair Morgan felt that a motion simply to give Westminster permission to legislate would be “so broad as to be pretty meaningless.  It would give Westminster carte blanche; it would send the message that we are not interested in the details (col 880).  

75. But others were critical of the alternative style of wording, favoured by the Executive, which expressed support for the principles of the Bill.  For Bill Aitken, “given that a Sewel motion seeks the permission of the Scottish Parliament for Westminster to deal with a matter on our behalf, we should not be expressing a view on the legislation one way or the other. The matter should be remitted to Westminster simpliciter” (col 924).  George Lyon agreed with this view, saying that “we are asking our colleagues at Westminster to do the work on behalf of the Scottish Parliament. It is about giving permission” (cols 927-8).  For Mark Ballard, the key question was “whether it is appropriate for Westminster to legislate in the area in question”, and he also felt the motions should not express support for the principles of the Westminster Bill (col 935). 

76. Pauline McNeill felt it was not always appropriate for the Parliament to endorse the principles of the Bill as this might limit its scope to express concerns about the details at a later stage (col 881).

77. Other witnesses argued for flexibility.  According to Alan Page, the motion should “simply seek the Parliament’s consent to Westminster legislating” in cases where the committee so recommends or where it refrains from expressing a view, but committees should also have the option of recommending “that consent be granted but subject to conditions” (w 14). 

78. Alan Trench suggested that the Parliament should adopt a standard form of wording for Sewel motions.  Such motions should give “consent to the substantive terms of UK legislation being proposed”, thus ensuring clarity about the extent to which the Parliament has given its consent and hence when further consent would be needed for amendments.  Detailed scrutiny “would appear to be primarily a matter for Westminster” (w 26).  

Monitoring and further scrutiny

79. One of Lord Sewel’s main concerns was that the Parliament’s initial consent should not be an end to the process: “There ought to be a clear beginning point at which the Parliament approves the Sewel route and there should be parliamentary monitoring of what happens once the Sewel route has been agreed” (col 837).  That would involve a committee reporting on “whether it was satisfied that the objectives that had been sought had been delivered and that the Bill had not been so amended so as to distort its original purpose” (w 12).  MSPs should not rely on the Executive to do this monitoring for them – Ministers were “all decent and honourable people … [but] in a parliamentary process, you should not rely on the Executive advising you; you have to satisfy yourselves as parliamentarians” (col 844).  Because Bills were frequently amended, sometimes significantly, “there ought also to be some form of signing-off for the Parliament at the end of the process” (col 837).  This could involve the Parliament deciding whether relevant provisions were to be brought into force in Scotland.  

80. Henry McLeish also wanted to “ensure that, if we allow Westminster to progress a bill, there is some way in which we can retain some accountability” in view of the Parliament’s “hugely superior” consultation process.  He thought the idea of using commencement orders was “worthy of consideration”, though he said he did have some concerns about the practicalities (cols 826, 834). 

81. A number of other witnesses supported the idea of a “signing-off process”.  Mark Ballard, for example, advocated “a post-amendment stage”, and could see a role for “varying commencement orders between England and Wales and Scotland” (col 936).  Alastair Carmichael said it would be sensible to devise some means to enable MSPs “to look again at the Bill once Westminster has finished it” (w 6).  He was aware of some UK Acts which had given Scottish Ministers a role in commencement, but he did not think there should be a rigid rule requiring this mechanism to be used (col 885).  

82. The problem for the Enterprise and Culture Committee (writing in March 2005) was that, while a committee could raise concerns with Executive Ministers, there was “no mechanism for that committee to verify whether the concerns have been addressed … the Parliament may be missing an opportunity to return to the legislation at a later stage and consider whether it would be happy to pass the Bill as amended” (w 2). 

83. Some members of the Justice 2 Committee agreed, suggesting “a two-step process” whereby the Parliament would decide, initially, whether Westminster should legislate in the area concerned and then, at the end, whether to approve the passing of the (amended) Bill.  But the majority view of the committee was that “the responsibility for monitoring the passage of Westminster Bills through the amending stages was the Executive’s and that the Executive should bring all relevant matters, including substantive amendments, to the attention of the Parliament and or committee” (w 17, 18). 

84. Bill Aitken argued that the potential for Westminster Bills to be radically altered by amendment was “undoubtedly a problem.  The obvious way for that to be remedied would be for the committee to consider it again prior to the final stage of the Westminster proceedings”.  George Lyon felt this was inconsistent with the idea of giving Westminster consent to legislate, and would also be impractical for Bills that enter a “ping-pong” process between the two Houses at the end of their passage; but both agreed that some further scrutiny by the Parliament was needed where the Westminster Bill was amended beyond the limits of the original consent given (cols 927-8).

85. Pauline McNeill also felt it was important to have an “end process … because it would be irresponsible of us as legislators to say to Westminster, ‘On you go, legislate for Scotland,’ and not do anything to check whether the end result is what we thought it would be”.  Using commencement orders was “one option, although it is quite a dramatic option” (col 879). 

86. For Professor Page, a signing-off process should not normally be necessary, since “if consent is granted the presumption should be that it will apply unless and until that consent is withdrawn”.  But he did think it was for the Parliament to monitor Bills after giving Sewel consent – this “would make it more likely that the Executive would take seriously their commitment to keep the Parliament informed of the development of legislation in respect of which a Sewel resolution has been passed by means of supplementary memorandums and to seek additional consent in appropriate cases” (w 15, 16).

87. Alasdair Morgan was doubtful about the ability of committees to monitor Bills after Sewel motions were agreed to: “a great amount of effort could be involved in our watching every move of a bill at Westminster, especially if it was a controversial Bill” (col 872).  He also did not see how a signing-off procedure would work “unless Westminster was prepared to change its procedures radically” – otherwise, the only practical option was for a committee to consider the legislation that was agreed, and bring forward its own Bill to alter those provisions that were within its competence (cols 869-70).  But he also recognised that using commencement orders had “some attractions”, since they could “enable the Scottish Ministers to say that what we thought we had given our consent to had changed so radically that we did not want to implement it in Scotland or that we at least wanted the Parliament to have a chance to debate it before we implemented it and, until that happened, we would not commence the provisions in Scotland” (col 878).

88. Tricia Marwick agreed with Lord Sewel that monitoring should not be left to the Executive.  She wanted the Parliament’s information centre (SPICe) to “keep a watching brief on bills as they progress through the UK Parliament” (col 962). 

89. Mrs McGuire pointed to the Executive’s existing commitment to bringing forward a further Sewel motion where a Bill was amended beyond the scope of an existing motion.  For her, the idea of giving the Parliament a final opportunity to give or withhold consent at the end of the Westminster process would not “stack up constitutionally” or practically, while the commencement order option was “superficially attractive, but … could, frankly, lead to difficulties in some instances”.  There was also, in her view, “an issue of trust. When the issues have been debated and Executive ministers have ensured that the Parliament is informed through its committees of any substantial change, a point comes at which we must say, ‘That is it’” (cols 863-4).  Ultimately (as other witnesses also noted), it was always open to the Parliament (at least in relation to devolved matters) to bring forward its own amending legislation. 

90. Mrs Curran was also unconvinced about the merits of a signing-off process, suggesting this might be disproportionate in view of the overall significance of most Sewel provisions: “We should not create a system for Sewels that does not allow us to put them to bed or to conclude them appropriately but drags them on improperly and gets them out of perspective” (col 992). 

Consent for changes in competence

91. One of Lord Sewel’s complaints about the way the Convention had developed was that it had been extended to cover Westminster legislation to alter the executive competence of Ministers.  “The Sewel Convention, as originally formulated”, he said, was “focused purely on legislation affecting the devolved areas” – and while it was necessary to have a mechanism for securing the Parliament’s consent where the competence of Ministers or the Parliament itself were being altered, that process should at least have a different name – “call it something else, but do not call it a Sewel motion”.  The recent Gambling Bill, for example, contained provisions to give Scottish ministers powers in relation to licensing, but because the term “Sewel motion” was used “a fair bit of the public debate became couched in terms that assumed that gambling was a devolved matter – which it is not, as we all know – and some confusion arose” (cols 837-8).

92. This view was echoed by the Liberal Democrats.  George Lyon’s concern was that “Sewel is getting a bad name because it is being used to do things that it was not originally envisaged that it would do” (col 925).  Mark Ballard also felt there was a “need to consider separate procedures for modifying or extending the powers of Scottish ministers” (col 935).  Other witnesses pointed out that the Scotland Act already provided a formal mechanism for only altering the powers of Ministers or the legislative competence of the Parliament subject to the Parliament’s agreement – by means of an Order in Council under section 30 or 63.19  Barry Winetrobe believed that these Orders should be used more often, so that Sewel motions would not be needed (w 3) – a view supported by Alasdair Morgan (col 867). 

93. But Professor Page thought it would be “artificial” to have separate procedures for these different types of provision, particularly as they often featured in the same legislation.  For him, the solution was in “more informed scrutiny that, by its nature, would pick up the distinction between the different kinds of Sewel motions” (col 961).  This was also the approach favoured by the Government.  According to Mrs McGuire, a system that required the Parliament “to manage two processes in order to reach one outcome” would be “unnecessarily bureaucratic” (cols 854-5).  The Labour Party and SNP agreed on this point – for Scott Barrie, the same procedure should encompass both Sewel motions and so-called “reverse Sewels”, since they were “two sides of the same coin”.  Tricia Marwick said her party was much more likely to support motions of the latter sort, but also saw no case for a procedural distinction: “once the decision has been made to Sewel something rather than to make it the subject of an Order in Council, the process should just be the same” (col 973). 

94. Dr Cairney’s concern was that, because most MSPs supported in principle any transfer of powers to Ministers, these motions were not subject to the same level of detailed scrutiny – there was “always a self-congratulatory atmosphere during the discussion”.  But such motions were still important, because the subject-matter was sometimes “just as controversial”, and the new powers they gave to Ministers increased the scrutiny burden on the Parliament (cols 950, 960-1).  As his colleague Professor Keating put it, each such motion “expands the power of the executive against the legislature” (w 7).  On this basis, Professor Page suggested that “where functions to be conferred on the Scottish Ministers include subordinate law-making functions, the Subordinate Legislation Committee should be consulted” (w 9).

Circumstances where it is appropriate to use the Sewel process

95. According to Lord Sewel, the Convention was intended to work in the context of “a strong, robust, confident Parliament … holding as a central tenet that Scottish legislation is likely to be better attuned to the needs of Scotland if it is the product of a Scottish Parliament”.  It followed that: 

“While a strong case for the use of Sewel motions can be made in relation to minor and technical matters that do not raise substantive points of policy, the Parliament should be cautious in using the Sewel route for matters of major policy, especially where the policy is contested and a matter of controversy. … To have recourse to Sewel motions in these circumstances would be a negation of the ‘spirit’ of the devolution settlement, a denial of the proper purpose of a parliament and an attenuation of political accountability” (w 8).

96. Henry McLeish took a similar view, saying that it was appropriate to use the Sewel route where “a devolved matter of a technical nature is being considered at Westminster – in other words, no issue of substance is at stake” or where “it would be silly to try to have different pieces of legislation on either side of the border for no good reason”.  But more substantial issues such as civil partnerships were arguably better dealt with by separate Scottish Parliament legislation.  Governments had a natural tendency to avoid controversy, he said, and the Parliament needed to “have the power to say to the Executive that an issue should not be decided at Westminster because it raises points of substance on which there might be a divergence of policy and that might require a distinctive Scottish solution” (cols 820-3).  Controversial provisions should be “considered closely against an informed checklist” before Sewel consent was granted. 

97. The Executive gave the following examples of where it would consider a Sewel motion appropriate:

  • “where it would be more effective to legislate in a single piece of legislation in order to put in place a single UK-wide or GB-wide statutory regime;
  • where a complex inter-relationship between reserved and devolved matters can most effectively and efficiently be dealt with in a single piece of legislation;
  • where the UK Parliament is considering legislation for England and Wales which the Executive and the Parliament believe should also be brought into effect in Scotland, but sufficient Parliamentary time is not readily available at Holyrood without setting aside our own legislative plans and priorities;
  • where the provisions in question, although they relate to devolved matters, are minor or technical and entirely uncontroversial;
  • where the powers of the Scottish Parliament and/or Scottish Ministers would be enhanced in a manner that would be outwith the competence of the Scottish Parliament – for example, conferring powers on the Scottish Ministers in relation to reserved matters” (w 6).

98. The Scotland Office offered a similar list of circumstances that it regarded as appropriate for the use of the Convention, including legislating “in order to create a coherent UK or GB wide system; … in order to address cross border issues; … to implement EU obligations; … to confer executive functions on the Scottish Ministers in reserved areas; … with regard to cross border public authorities; … [or] to give legal certainty so there cannot be a challenge to a law on the grounds of vires” (w 9).    

99. But Professor Keating criticised some of these reasons.  Reliance on “administrative convenience” was “against the spirit of the devolution movement, which is that it does matter how decisions are taken and by whom”.  As a result, there should be “a strong presumption” that devolved legislation would be handled in the Scottish Parliament.  Reliance on the greater legal certainty of Westminster legislation was also inappropriate, since “it hinders the process of clarifying the boundaries of the devolution settlement”.  Another problem was that:

“Sewel motions have sometimes been used for reasons of political cowardice, in order to avoid public controversy in Scotland, especially on issues of sexual morality. This is contrary to the spirit of devolution, which is that controversial issues should be debated in Scotland. The implication is that Scottish society is not mature enough to deal with these matters” (w 3 -5).

100. George Lyon felt that some of the bad publicity the Sewel process attracted was due to minor and technical issues being counted together with larger and more controversial issues.  Bill Aitken largely agreed, though he was less convinced that committees could easily decide on which was which (cols 925-6). 

101. According to Peter Duncan, the aim was to “ensure that legislation was only passed in Westminster when it was appropriate to do so and that matters best decided in Scotland are decided, or at least adequately debated, in the Scottish Parliament”.  He wanted to “get back to the original purpose of Sewel motions, which was for minor legislative matters and when they are in Scotland’s best interests” (w 4, 9).  Bill Aitken, similarly, said that Scottish Parliament legislation should always be used where “the Scottish component is predominant or overriding” (col 918).  The SSP’s view was that the Parliament had been given legislative responsibilities “as a consequence of the democratic demand of the Scottish people” and “should not lightly delegate these duties to others” (w 16).

102. The Minister for Parliamentary Business accepted that some categorisation might be necessary in order “to make a clear distinction between Sewels that relate to minor and technical issues and the matters of substance that sometimes arise” (col 980). 

103. The Justice 2 Committee felt that the procedures should not impose a “one-size-fits-all” approach in which the Sewel process was deemed appropriate only in relation to technical provisions in Bills.  Flexibility was needed to allow the Parliament to consent to more substantive provisions where it was appropriate to do so (w 13). 

Case for a specialised committee

104. Lord Sewel suggested that the Parliament “draw from the experience in the way secondary legislation is considered and … establish a special committee that would develop its own expertise. Over time a series of criteria would emerge against which the committee would test any request from the Executive for the use of a Sewel motion” (w 11).

105. Professor Page supported this approach.  He envisaged initial consideration by either a new committee or an existing mandatory committee which would consider only “the appropriateness of relying on Westminster”.  That would “lay the basis for more informed consideration by a subject committee, if the issue was thought to be of such importance as to warrant it, or by the Parliament”.  The aim was “to build a shared understanding of the matters on which the Parliament is content for Westminster to legislate” – though he accepted that the degree of political consensus required to make this work made it an “optimistic” approach (w 8, cols 947, 951).  

106. Dr Cairney acknowledged that a Sewel committee could develop expertise in a more technical form of scrutiny and take the pressure off the already overburdened subject committees.  But he argued that, in practice, it would be difficult to prevent party politics distorting such a committee’s role and hence that “a more realistic and less disruptive proposition” would be to formalise the current practice of scrutiny by a subject committee (w 17).  The subject committees, he believed, already had a good record in finding consensus, including on where Sewel motions didn’t merit further debate in the Chamber (cols 947-8, 953).

107. Barry Winetrobe felt that the case for a dedicated committee had “merit in principle” but could “detract from the scrutiny role of existing subject-specific committees”.  He suggested giving “oversightfunctions” to an existing committee, such as the Subordinate Legislation Committee, while leaving the subject committees responsible for scrutinising the merits of the policy (w 22).

108. Scott Barrie pointed out that establishing a new Sewel Committee would require additional staff and other resources.  He was doubtful that giving it only a narrow role would represent a good use of members’ time, or that it would be able to operate in a non-partisan way, given the contentious nature of the subject matter.  Such a committee, he felt, “might give people an awful lot of work but not create much extra clarity” (col 969).  Tricia Marwick was also not convinced, saying that existing committees already had the subject expertise and would be able to judge whether Sewel motions were appropriate (col 967).  Both she and Mrs Curran felt that splitting the scrutiny role between a specialised Sewel committee and existing subject committees risked over-complicating the process (cols 969, 997). 

Debates on Sewel motions

109. Paul Cairney thought there should be an opportunity to debate all Sewel motions, although he recognised that the Parliament might not always want to devote time to debates on motions deemed uncontroversial by a committee (w 8).  The Justice 2 Committee and the SSP took a similar view (w, 14, 20). 

110. Margo MacDonald believed it was important for the Parliament to debate all issues affecting Scotland, as a way of articulating the concerns of the people, and to build the Parliament’s maturity and members’ ability as legislators.  “Even if we decide that a Sewel mechanism is the most sensible way of disposing of such issues, we should debate the issues nonetheless” (col 934).  Alice Watson and the Rev Robert Anderson both felt there should always be a full debate in the Scottish Parliament on each Sewel motion (w 1, 4).

111. Henry McLeish recognised that “it might make practical sense” to hold debates in committee rather than in the Chamber – but “we must be careful not to undermine the importance of the Sewel Convention by saying that the decision is up to the committee and that we should not bother if the motion is nodded through” (col 833).

112. The Minister said she was always receptive to requests for more time to debate Sewel motions, but felt it was sometimes “not possible to correlate the substance of the Sewel with the amount of time that is given over to debating it”.  More consistent standards were needed.  She would take account of committees’ views, but it also needed to be recognised that extra time for Sewel debates meant less time for other business – and there was a balance to be struck between getting through the business sensibly while ensuring proper scrutiny and accountability (cols 981-2). 

113. Most of the political parties argued for a pragmatic and flexible approach, with the Bureau taking account of the substance of the motion.  As Tricia Marwick put it, “it would be nonsense to timetable automatically an hour’s debate for every Sewel motion, as there might be Sewel motions on which none of the parties wants a debate”.  Bill Aitken and George Lyon agreed that non-substantive Sewel motions could be taken formally, while motions considered by the Bureau to be more substantive should be allocated a reasonable amount of time for debate.  For George Lyon, this meant around 45 minutes (cols 919-20), whereas Tricia Marwick felt that “for something as important as the Serious Organised Crime and Police Bill”, a 2½ hour debate would be justified (col 971). 

114. Pauline McNeill was critical of the time sometimes allocated to debate important motions, such as on the Supreme Court Bill, saying that a debate that allowed “only one speaker per party on a Sewel motion that is controversial is clearly too short”.  Where the timetable for committee consideration was tight, she argued, it was particularly important that more Chamber time was provided to compensate (col 875). 

Possible changes to Westminster procedures

115. Barry Winetrobe suggested various practical measures to improve Westminster procedures, including “some form of certification by the Speaker; ‘tagging’ of relevant Scottish Parliament papers … and routine inclusion of the existence and details of the Sewel context in a Bill’s Explanatory Notes” (w 12).

116. Some changes along these lines were endorsed by witnesses from Westminster.  Lord Sewel wanted it “made clear at a Bill’s second reading whether the intention is to apply it in Scotland, because that gives Scottish MPs the opportunity to contribute” (col 848).  Alistair Carmichael agreed, adding that it could “sometimes be a matter of luck” whether any Scottish MPs were involved in the scrutiny of a Bill subject to a Sewel motion (col 888, w 4). 

117. Mrs McGuire agreed it would be helpful if Bills subject to the Sewel Convention were more clearly flagged as such, and said the Government would use its “good offices to encourage that to happen” (col 857).  She acknowledged that “due recognition should be given to the process in the Scottish Parliament” but felt that “it would be incredibly difficult to create a formal procedure for doing so” (col 854). 

118. As the Clerks of the two Houses confirmed, “the fact that the Scottish Parliament has passed a Sewel Resolution is not communicated formally to either House, though it is often communicated informally by Ministers during the course of proceedings on a Bill” (w 5).

119. According to Mrs Curran, the Executive already sent the Government a copy of the Sewel resolution, together with the Executive memorandum.  Relevant Parliamentary committee reports were also usually passed on (col 988).  But Pauline McNeill felt that this was too informal a process – she understood that her committee’s report on the Civil Partnership Bill had been brought to the attention of MPs, and had been useful, but she wanted to see more systematic feedback to committees about how their views were taken up at Westminster, including “a response from the responsible minister at the end of the process” (cols 874-5).  “If a committee goes to the bother of producing a report, we should know that something has been done with it—that it has been considered in some way and … that it is not just lying on a table somewhere” (col 876).  Mark Ballard agreed that “unless we have a proper mechanism for feeding back our discussions in committee meetings or a meeting of the Parliament to some appropriate Westminster body, that debate takes place in a vacuum” (col 941).

120. Some witnesses wanted to see more direct engagement between the two Parliaments.  Alistair Carmichael suggested that either the Scottish Affairs Committee or the Scottish Grand Committee “could consider a bill along with the appropriate committee of the Scottish Parliament and put a report to the standing committee that was considering the Bill” (cols 884, 888).  He also saw merit in enabling Scottish Ministers or MSPs to give evidence to a Commons committee, suggesting that “special standing committees” might be used for this purpose.  Joint committees involving MPs and MSPs meeting together was also an option in some cases (col 890). 

121. Such ideas were supported by Barry Winetrobe, who said that Westminster was “not totally averse” to developing innovative procedures for handling legislation.  For example, Commons committees scrutinising draft Bills affecting Wales had held joint meetings with Welsh Assembly committees, and there were proposals to allow EU Commissioners and MEPs to participate in Westminster scrutiny of European legislation (w 9). 

122. The SSP went further still, suggesting that amendments endorsed by the relevant Scottish Parliament committee should be considered at Westminster alongside amendments moved by MPs, and that Westminster should provide an extra stage in the legislative process for in order to allow the Parliament and its committees “to subject amended Bills to renewed scrutiny and consent before final passing” (w 6, 25).

123. But Henry McLeish said that “it would be constitutionally and politically unrealistic to try to press change on Westminster procedures”.  Scotland’s understanding of the significance of devolution was not necessarily shared in Westminster, whose “practical procedures reinforce its culture of parliamentary sovereignty” (cols 830-1).  He also questioned whether Scottish MPs should have a greater role in scrutinising Bills that were subject to Sewel consent, on grounds of accountability.  This “would also allow them to get involved in devolved issues, and some people might be upset with that” (col 834).

conclusions and recommendations

124. From the evidence we have received, it is clear that there is a broad consensus among witnesses on the following key points:

  • that something like the Sewel Convention is made necessary by the nature of the devolution settlement;
  • a general acceptance that it is a legitimate mechanism to enable minor and uncontroversial provisions to be extended to Scotland, but reluctance to see it used for more complex and contentious issues without this at least being accompanied by more time for scrutiny and debate;
  • that while informal procedures have improved significantly over the last six years, there is now a need for a more structured process – but that any standing orders should ensure sufficient flexibility is maintained;
  • the need for early warning of forthcoming Bills, to enable committees to plan ahead, plus timely and detailed information once the Bill is introduced;
  • that the same overall process should be used where the provisions seek to alter the competence of Ministers or the Parliament as is used where they change the law on devolved matters, but with greater clarity as to which applies in each instance.

125. On a number of other key issues, however, there was less consensus among witnesses:

  • whether there is a case for a separate “Sewel Committee” to undertake the initial, technical scrutiny in addition to any policy scrutiny undertaken by the existing subject committees;
  • whether a meaningful checklist of criteria could be agreed upon to decide where it is appropriate to agree Sewel motions, or whether each case should be decided on its merits;
  • whether committees should actively monitor Bills after initial consent has been given or rely on the Executive to alert them if significant changes are made; and
  • whether the Parliament should have some sort of “signing-off” process at the end of the Westminster process, and what that might involve.

General status of the Convention

126. We recognise, like most of our witnesses, that the devolved arrangements put in place in 1998 create a need for some mechanism along the lines of what has become known as the Sewel Convention.

127. Members of the Committee, naturally, differ in their overall views of the Scotland Act as a long-term settlement for Scotland.  But in this context, we must take that formal structure as a given, and consider the effectiveness of the arrangements that have been put in place within that structure to govern the interface between two Parliaments, each of which has a legal right to legislate for Scotland in devolved areas.  The same section that confers that right on the Parliament – “the Parliament may make laws, to be known as Acts of the Scottish Parliament” – also asserts the continuing “power of the Parliament of the United Kingdom to make laws for Scotland” (section 28(1) and (7)).  The potential for legislative overlap, even conflict, is therefore built in with the bricks.

128. But devolution was always as much about politics as about the legal formalities.  By deciding to establish a new Parliament specifically to handle legislation on devolved matters, the UK Parliament implicitly recognised the need for its own law-making powers in Scotland to be subject to a self-denying ordinance, notwithstanding its continuing formal sovereignty in all parts of the UK.  Put simply, it would be pointless, and destructive of the spirit of devolution, to create a new law-making institution and then routinely to step on its toes.  Lord Sewel was, in that sense, merely recognising what was already the political reality – a presumption that the Scottish Parliament would take the lead in relation to devolved Scottish law-making.  Nevertheless, his statement was important in giving clear expression to how the new inter-Parliamentary relationship would be expected to work, with consent as the central concept. 

129. The Convention’s main purpose, therefore, was to assert the new Parliament’s political (if not legal) primacy in devolved areas – any legislation must either be the direct product of its own deliberations or require its explicit consent.  Either way, it remains in control.  We believe that this is a fundamental principle for the Parliament, and it is one we strongly endorse.

130. We also believe that the Convention is there to be used in appropriate circumstances.  We may differ among ourselves about how often we would expect that to be, or about the criteria that should be applied in identifying suitable opportunities, but we all recognise that circumstances will from time to time arise – and have done already – where Scotland can secure, by being included in legislation at Westminster, an outcome that would not otherwise easily be available.  We therefore accept that Sewel motions can be a legitimate Parliamentary device.

131. We are aware that, in practice, the Parliament has been asked to give its consent to Westminster legislating more often than might have been expected at the time Lord Sewel’s statement was made – although it is also clear from the evidence that there was no particular expectation at that time how often this would happen.  It is not for this Committee to comment on whether the Convention has been overused – still less to judge the merits of using it in any particular instance.  We are clear that what matters is what the Convention is used for, and whether the Parliament has the time and information it needs to make the decision properly.  We reject any suggestion that the number of Sewel resolutions can be meaningfully compared with the number of its own Bills the Parliament has passed. 

132. The Parliament’s powers are set out in statute and are new powers, created in addition to Westminster’s.  Since they have not been transferred from Westminster, they cannot be “handed back”.  All that a Sewel motion can do is convey the Parliament’s agreement to Westminster legislating in a devolved area on a particular occasion.  This does not weaken the Parliament’s right to refuse consent the next time, even in very similar circumstances, still less its power to legislate itself in that area (including by varying or even repealing any Westminster legislation to which it previously consented).  It is therefore incorrect to say that when the Parliament agrees to a Sewel motion to enable Westminster to legislate on a devolved matter, this somehow involves the Parliament handing back powers to Westminster.  Such an assertion betrays a basic misunderstanding of devolution. 

The Convention in practice

133. Given its origins in a statement by a Government minister, and given that the Parliament’s elections have resulted in an Executive led by the same party as that Government, it is perhaps not surprising that the two administrations have played a dominant part in shaping the Convention.  The result is a system more concerned with practical outcomes than with constitutional principle, with the definitive statement of what the Convention involves contained in guidance to Whitehall departments. 

134. In its own terms, this pragmatic approach seems to have worked reasonably well.  While the evidence suggests some variation between departments and over time, a great deal appears to have been done to establish an understanding of the Convention’s implications throughout Whitehall.  Close liaison between the Executive and Government, mediated through the Scotland Office and operating at official and Ministerial level, has very largely succeeded in preventing Government legislation straying inadvertently into devolved areas, and has also ensured that where there is a case for crossing the line deliberately, this is discussed and agreed between the administrations from an early stage.

135. All the same, the upshot has been that what was originally envisaged as an inter-Parliamentary convention has emerged in the form of an agreement and set of working practices within the structures of government.  Whatever practical advantages this has, it has created the perception of an Executive-driven process in which the Parliamentary role is secondary.  Perhaps unfairly, this has contributed to the suspicion and even hostility with which the whole Sewel process has been regarded in some quarters.  We therefore believe it would now be in everyone’s interests if the Parliament as a whole was to assume a greater degree of control and ownership over the process, including by embedding the main elements of Sewel scrutiny into the standing orders.

136. It is fair to acknowledge that procedures within the Parliament have already improved considerably since the early days.  The basic element was always a motion, expressing the Parliament’s consent to Westminster legislating for a specified purpose.  The Executive has rightly added to that its own memorandum, setting out the background about the Westminster Bill and its reasons for supporting those provisions for which Sewel consent is required.  More recently it has included a draft of the proposed motion and established a permanent website archive of these memorandums.  The Executive has also recognised the benefit of routine committee scrutiny preceding plenary consideration of the motion, and has taken steps to increase the amount of time available for that scrutiny (primarily by extending the target for obtaining consent from second reading to the last amending stage in the first House).  Greater effort has been made to alert committees, and MSPs more generally, to where they expect Sewel motions to be needed, through written answers to “inspired” PQs and through correspondence.  And the Minister for Parliamentary Business has gained credit from other business managers for being responsive to requests for extra time for Chamber debates.

137. However, this remains a largely informal system, and – partly for that reason – still an unsatisfactory one.  Any ad hoc process tends to have some advantages in terms of flexibility and responsiveness to circumstance, but by the same token lacks transparency and certainty for those involved.  It cannot be satisfactory in the longer term that MSPs’ ability to scrutinise adequately any proposed use of the Sewel route should depend on whether Ministers choose to provide the time and information needed on that occasion.  That should be a matter of procedural right, just as it is with other aspects of Parliamentary business.  More regulated procedures should also greatly increase transparency, enabling each exercise of the process to be properly documented and tracked by anyone who might wish to feed in their views or just see what stage the Parliamentary scrutiny process has reached.

Putting the Parliament’s Sewel procedures in context

138. Our main recommendation, therefore, is for a new set of Rules to regulate the Sewel scrutiny process within the Parliament.  But in developing those Rules we have had to keep in mind a number of important contextual factors.

Limits on our remit

139. Firstly, we have been conscious throughout this inquiry that our remit restricts us to making recommendations about the Parliament’s own Rules and practices, even though that is only one aspect of a wider Sewel context.  It may be that the best system for post-devolution inter-parliamentary dialogue about legislation would require most of the changes to be made at the Westminster end of the process, but that is not within our gift.  Westminster has so far done very little to adapt its legislative process in consequence of devolution, and it would be naïve to put in place a system here that depended on that changing.  The reality is that the UK Parliament’s consent to specific provisions in one of its Bills, important though it may be to us, is likely to remain a relatively insignificant factor from a Westminster perspective.  The Parliament’s Sewel procedures have to adapt to the Westminster legislative process, particularly in relation to timing, rather than the other way around.  Our priority, therefore, has been to establish a system that gives the Parliament the best advance notice and information possible about what Westminster is proposing that may affect us, so that we can take well-informed decisions in good time about whether to give or withhold consent. 

Range of variables

140. A second factor that we have become conscious of during the inquiry is the range of variables that exist in the Sewel context.  Devising procedures capable of accommodating all these variables, while remaining reasonably clear and simple to apply in normal cases, has been a significant challenge.  It is certainly not just a question of writing into the Rules the informal procedure that has become our normal practice, since that would risk boxing us into a process that only works in current circumstances, and could prove to be a procedural straitjacket should those circumstances change.  On the other hand, it would be unrealistic and cumbersome to attempt to provide a specific procedure for every possible eventuality.  We have therefore aimed to devise procedures that are sufficiently flexible to accommodate all the circumstances that we think may arise.

141. A number of key variables are already built into the Convention as it currently exists, namely:

  • that the need for consent may arise from provisions in a private member’s Bill (PMB) rather than a Government Bill, and that such a Bill may be introduced (in either House) without the Government or the Executive having considered in advance whether or in what circumstances they might support those provisions;
  • that the need for consent may first arise by virtue of amendments made to a Bill, as well as by virtue of provisions included from the outset, and that further consent may be required where a Bill is amended beyond the scope of consent already given; and
  • that the need for consent may arise by virtue of provisions altering the legislative competence of the Parliament or the executive competence of Scottish Ministers, instead of or as well as by virtue of provisions for devolved purposes.
  • We have also tried to allow for longer-term political variables, including the possibility of a UK Government and Executive politically opposed to each other, and possibly no longer sharing a commitment to making devolution work in the way it has done so far.  These could generate scenarios for which we have no experience so far, such as:
  • a UK Government that is prepared to introduce legislation affecting devolved matters without first securing Executive agreement to those provisions; or
  • an Executive that is politically aligned to an opposition party in Westminster and inclined to signify its support to private members’ Bills introduced by members of that party.

143. These possibilities may seem unlikely in current circumstances, but we think it is important to ensure that any procedures we put in place now are capable of working should they ever arise.  At the same time, we have aimed to ensure that the procedures we recommend are not unduly distorted by these possibilities in the way they deal with the current situation – where the Executive seeks the Parliament’s consent to provisions that it has agreed in advance with the UK Government should be included on introduction in a Government Bill. 

Limits on the Convention

144. A third, related factor is the recognition that the Convention itself has its limits – it is, ultimately, only a political undertaking with no legal or constitutional underpinning.  We do not doubt the sincerity of the current UK Government’s commitment to upholding the Convention – including to amend its own and others’ Bills when the Parliament withholds or refuses consent – but future Governments may not see things in the same way.  In any case, the Convention itself allows for unspecified exceptions (it is couched in terms of what will “normally” happen).  In particular, this allows for the possibility of expedited legislation, where there is no time for the Parliament’s consent to be obtained.  It also acknowledges that, although Westminster is a more executive-dominated legislature than this one, the Government’s view will not always prevail.  Another factor is that even a UK Government fully committed to maintaining good relations with its devolved partners is subject to other pressures and commitments which may sometimes have to take precedence – for example, where a Bill to implement a UK treaty obligation needs to be passed regardless of whether the Parliament consents to its application in Scotland, or where end-of-session brinkmanship forces the Government into a last-minute deal to secure the passing of a flagship Bill, for which the price is accepting an amendment to which the Parliament hasn’t consented.  Finally, there is always scope for error.

145. The possibility exists, therefore, that Westminster will legislate without the Parliament’s consent, or even against a deliberate refusal of consent.  On the one occasion we are aware of where this has so far happened – a minor and entirely inadvertent breach of the Convention – the Executive rightly provided a prompt explanation.  It is clearly important that this should happen, so that the Parliament can consider the implications of what has happened (including, where appropriate, the case for passing corrective legislation of its own). 

A broader perspective

146. Putting these factors together gives a broader perspective on what Sewel procedures are about.  It is not just a question of enabling the Executive to obtain the consent it needs as part of its agreement with the UK Government – it is about the Parliament as a whole maintaining awareness of what is happening at Westminster that impinges on its area of interest and responsibility, so that it is in a position to engage with that process in a timely and well-informed way. 

Early warning mechanisms

147. One essential element in any improved scrutiny process is early warning of when Sewel scrutiny is likely to be required, so that committees can factor it into their forward work plans and so that outside interests are also alerted in good time. 

148. We recognise that the Executive has already made progress in this respect, most recently through written answers to inspired PQs in the immediate aftermath of the Queen’s Speech at Westminster, followed up by letters from Ministers to Conveners.  However, we do not believe that this is a sufficiently prominent way of disseminating such important information to MSPs generally, or putting it in the public domain.

149. What we recommend instead is that the Executive (in practice, presumably, the Minister for Parliamentary Business) should provide the same information in a letter to the Presiding Officer, copied to all MSPs including relevant committee conveners, as soon as reasonably practicable after each Queen’s Speech.  It would then be for the Presiding Officer to ensure that the letter was brought prominently to the attention of the interested public through an announcement in the Business Bulletin.  Copies of the letter could be made available in SPICe and on the Parliament’s website.

150. We recognise that the information available at the time of the Queen’s Speech will not be sufficient to give reliable advance notice of every Sewel motion.  Some of the Bills announced will be at an early stage of policy development, and it may not yet have been decided whether any of their provisions are to be extended to Scotland, while with others the timescales may still be fairly uncertain.  It may therefore be necessary for the Executive to provide additional or updated information to the Parliament at a later date.  Since this information is likely to relate only to individual Bills, it should normally be conveyed directly to the relevant committee in the form of Minister-to-Convener correspondence.  Any such correspondence would automatically be put in the public domain by being circulated to other committee members for information (among the meeting papers posted on the committee’s web-pages). 

An enhanced role for the Executive memorandum

Status of the memorandum as Parliamentary document

151. The memorandum that the Executive already provides in relation to each Westminster Bill for which a Sewel motion is proposed has become an important part of the scrutiny process.  Each one provides general background to the Bill, together with an explanation of the provisions for which Sewel consent is required and – more recently – the terms of the proposed Sewel motion. 

152. However, these memorandums have never been published Parliamentary documents.  The Executive sends copies to the relevant committee, and they are also available in SPICe, but they remain almost invisible to the Parliamentary system.  Because there is no requirement for them to be formally lodged, there is no basis for recording their existence in the Parliament’s Business Bulletin or on the Parliament’s website, making it difficult for MSPs generally to be aware of them, or for them to be tracked down after the event.  Also, although they are provided as an aid to Parliamentary scrutiny, the Parliament has no control of their timing or content.

153. We believe that these memorandums should become not just a source of information for committees invited to consider proposed Sewel motions, but also part of the procedural mechanism for the scrutiny process.  On that basis, we recommend that they should become formal Parliamentary documents, required under standing orders.

154. One upshot of this is that the Sewel motion becomes of lesser overall importance.  It remains the case that the Parliament’s decision whether or not to consent to Westminster legislating must involve a motion being formally moved and disposed of, so that where consent is given, this is expressed in a resolution of the Parliament.  But a motion is not essential for the earlier part of the scrutiny that takes place in committee (and there have already been a number of instances of committee consideration beginning before a motion is lodged). 

Link between memorandum and motion

155. Having said that, however, we commend the Executive’s recent practice of including the text of the proposed motion in the memorandum, and believe this can provide a useful link between the two stages of the process.  What we recommend is that the Executive memorandum (including the draft motion) should be lodged first and referred to a committee, with the motion itself not lodged until after committee scrutiny is complete.  In this way, while the committee’s main focus should be on the policy implications of the Bill, it would also be able to comment on the terms of the motion, and the Executive would be able to take account of any such comments before lodging the motion itself.  The Executive would only be expected to lodge the motion far enough in advance of the Chamber proceedings to enable other parties to prepare and lodge any amendments they consider appropriate.

The memorandum as trigger for the scrutiny process

156. The main function of the Executive memorandum is to provide factual information about a Westminster Bill that makes provision for which Sewel consent is required.  It is obviously helpful if that information is available as early as possible, to enable Parliamentary scrutiny to begin promptly, and we therefore recommend a Rule that not only requires a memorandum to be lodged but also sets a deadline for this to happen by reference to the earliest appropriate point in the Westminster process.  In this way, the lodging of the Executive memorandum can become the trigger for the whole scrutiny process that then unfolds.

157. This makes it necessary to identify those Westminster Bills that contain provisions requiring Sewel consent (which we suggest are referred to as “relevant Bills”).  The Government’s devolution guidance note (DGN 10) already defines the sort of provision made by a Westminster Bill for which Sewel consent is needed (which we suggest is referred to as “relevant provision”).  This is either provision for a devolved purpose, or provision that alters the Parliament’s legislative competence or the executive competence of the Scottish Ministers.  Any Bill that makes relevant provision and is under consideration (at any stage) in Westminster is therefore a “relevant Bill” so far as the Parliament is concerned.

158. We recognise that defining relevant provision partly by reference to the “purpose” of the provision has the potential to create difficulties of interpretation.  But this seems to us unavoidable – the Scotland Act (s.29) uses the “purpose test” for determining whether provision in an Act of the Scottish Parliament is within the Parliament’s legislative competence, and it seems appropriate that Sewel consent should be required for Westminster devolved provision only where it would be possible, at least in principle, for the Parliament itself to legislate to equivalent effect.  It also avoids the Sewel procedure being invoked in trivial instances – those where, according to DGN 10, a Bill crosses the line into a devolved matter only incidentally to or consequentially upon provision made for a reserved purpose.

159. In line with that general approach, we recommend that the requirement should be for the Executive to lodge a memorandum about any Westminster Bill that could be the subject of a Sewel motion and that has reached a reasonably advanced stage of consideration – with the memorandum either explaining why the Executive intends to lodge such a motion, or why it does not.

160. One reason for this is that the Executive may not always have decided straight away whether it does intend to lodge a Sewel motion – perhaps because it did not get, for whatever reason, sight of the Westminster Bill prior to introduction.  In such a situation, the Parliament still has an interest in getting early notice of what is happening, and it is really only the Executive that is equipped to provide that notice promptly and reliably, using its network of official and Ministerial contacts with Whitehall. 

161. A second factor is that, although Sewel motions have always so far been lodged by Ministers, any MSP has the right to lodge such a motion – this being the default position for all motions (under Rule 8.1.1).  We believe this should remain the position – inviting the Parliament to consent to Westminster legislation should no more be made the exclusive preserve of the Executive than should the right to introduce Bills.  We also believe that there should be proper scrutiny of the merits of any Sewel motion, whoever has lodged it, so that the Parliament can reach a well-informed decision in each case whether to give its consent.  The requirements for timely and accurate information are essentially the same, whatever the source of the motion.  Of course, a non-Executive motion is much less likely to be agreed to, but we do not consider that a reason for not requiring a memorandum in such cases – any more than it would be a reason for not requiring proper information to assist in the scrutiny of a Member’s Bill.

Non-Executive memorandums

162. However, we could also see the benefit in requiring a memorandum from whoever is lodging a Sewel motion, so that there is access to the member’s reasons in support of the motion.  In any situation where Westminster is proposing to legislate in ways the Executive does not support, the Parliament needs access to both sides of the argument.  We therefore recommend that, while an Executive memorandum should be required in every case, just on the basis of a relevant Bill being in progress at Westminster, any non-Executive member proposing to lodge a Sewel motion should also first be required to provide his or her own memorandum.  This should help to ensure that lodging a Sewel motion is seen as a serious undertaking, as is appropriate for something intended to allow a change in the law, and is not embarked upon lightly. 

163. In the situation that has so far obtained, none of this will make a practical difference.  There will still be a memorandum from the Executive, followed by an Executive motion.  But it does mean that in some situations that might arise in future, there will be two separate memorandums involved, one from the Executive explaining why it does not support legislation being proposed at Westminster, and one from an MSP explaining why he or she takes the opposite view (and setting out the draft motion he or she intends to lodge).

Timing of Executive memorandum

164. Having identified the relevant Bills, the next step is to decide when such a Bill should trigger the Parliament’s Sewel procedures.  This will depend on the type of Bill, and whether it is a relevant Bill on introduction or only becomes such a Bill later, by amendment.

Government Bills

165. With a Government Bill that is a relevant Bill when it is first introduced (in either House), we believe the procedure should normally be triggered within two weeks of introduction.  Any such Bill can be assumed to have a high probability of being passed; it can also safely be assumed that it includes relevant provision deliberately and for reasons that are unlikely to change – and that therefore (subject to the Parliament’s consent being obtained) it will still be a relevant Bill when it is passed.  There is therefore every reason for the Parliament to be aware of it quickly, so that scrutiny can begin at the earliest convenient moment.  Given the close liaison that should already have taken place before introduction, a deadline of two weeks after introduction for the lodging of the memorandum should be sufficient in most cases.  All the same, it would be preferable to receive a good-quality memorandum slightly later than a rushed one sooner, and we are therefore content to recommend some flexibility in relation to this deadline.

Private members’ Bills

166. With private members’ Bills (PMBs) that are relevant Bills on introduction, the issues are slightly more complex.  While it is still important to enable the Parliament’s scrutiny to begin promptly, there is no point in triggering a formal procedure in relation to every PMB that is introduced, given that most of them will have little chance of ever becoming law.  The success rate for PMBs depends on a range of factors, of which Government backing for the policy intention is probably the most important, but this is not a criterion that can easily be used as a measure in a procedural context.  It also depends on the type of PMB – Commons “ballot Bills” generally fare better than “10-minute Rule” Bills, for example, while Lords Bills may initially make good progress but then be lost in the Commons. 

167. To avoid our Rules getting bogged down in this complexity, we recommend that any PMB introduced as a relevant Bill should trigger the Sewel process if it is still a relevant Bill when it has completed its first amending stage.  That means the Parliament need not be alerted if a PMB cannot secure majority support (on second reading) in the House of introduction, or if the relevant provisions are removed at Committee Stage in that House.  By setting this as the test, we believe our Rules may prompt the Government (in turn prompted by the Executive) to show its hand on PMBs, at least in relation to their devolution implications, more promptly than they might do otherwise – which in turn may help to raise awareness of the Convention and its implications among Westminster backbenchers.

Amended Bills

168. Finally, there needs to be a trigger for an Executive memorandum in cases where a Bill is amended so as to become a relevant Bill – whether that is for the first time, or because of amendments that go beyond the scope of any Sewel consent already obtained.  This raises problems of timing and certainty – amendments can be made at a number of different stages in either the first or second House, and beyond (during the so-called “ping-pong” process where amendments made by the second House are considered by the first and so on) – and the later in the overall passage of the Bill this happens, the less time there will be for Sewel consent to be obtained.  In addition, amendments made at one stage can be reversed at later stages, so there is always a risk of triggering scrutiny that will then become unnecessary.    

169. It would not be realistic to expect the Scottish Parliament’s procedures to follow every twist and turn in a complex and sometimes fast-moving Westminster amending process. What we need is a relatively simple test for deciding when our procedures should be triggered by amendments to Westminster Bills, striking a balance between prompting the Parliament to begin scrutiny early enough and minimising the risk of doing so unnecessarily.  What we recommend is tying our procedures to when a relevant amendment is tabled, if it is a Government amendment, or when it is agreed to, if it is a non-Government amendment – recognising that Government amendments have a much higher success rate than non-Government amendments. In either case, the requirement should be for the Executive memorandum normally to be lodged within two weeks.  (That may, of course, be longer than the Executive can afford to wait, if the amendment is at a late stage in the Bill’s passage, but in other cases it may allow the Executive to hold off until the next amending stage, in case the amendment is overturned.)

Content of the memorandum

170. We recommend that the Rule that requires the Executive (or another MSP) to provide a memorandum should also specify in general terms what information the memorandum should provide.  This should include, in every case, an outline of the Westminster Bill as a whole, plus further information about the relevant provision (distinguishing clearly whether it is devolved provision, competence provision, or a combination of the two). 

171. Wherever the Minister (or other MSP) lodging the memorandum is also intending to lodge a Sewel motion, the memorandum should give reasons for supporting the provision that is to be made, and why it is considered better to make that provision in a Westminster Bill rather than by some other means.  For example, that may refer to the importance of ensuring a seamless cross-border regime, or to why the extra time or resources required for a separate Scottish Parliament Bill would be disproportionate to the scope of the provisions.  In other cases, it would be a matter of explaining why new powers were being conferred on Scottish Ministers, or why the Parliament’s legislative competence was being altered, by provision in a Westminster Bill rather than by an Order in Council.  A draft of the proposed motion would also be required.

172. A memorandum lodged by the Executive where it is not intending to lodge a Sewel motion would require instead to explain its reasons for not supporting the Westminster Bill.  This might be because the Executive opposes a change to the law altogether, on policy grounds, or because it would prefer to change the law in different ways, or at a different time, through an alternative legislative route. 

Committee consideration

173. The next step in the process is for the Executive memorandum to be referred to the relevant committee for scrutiny.  The first question this raises is what sort of committee scrutiny is required, and hence what sort of committee should carry it out.

Case for a “Sewel committee”

174. We have considered carefully the case that has been made for a specialised “Sewel Committee”, but we are not convinced that this is either necessary or appropriate. 

175. Such a committee might follow the model of the Subordinate Legislation Committee (SLC), which conducts technical scrutiny of statutory instruments at the same time as the relevant subject committee considers the instrument’s policy implications.  But in a Sewel context, we don’t see how two parallel committees could meaningfully carry out distinct scrutiny functions in isolation from each other.   Alternatively, a Sewel committee could act as an initial filtering mechanism, leaving only the larger or more controversial cases to be referred on to a relevant subject committee.   But this would build an additional stage into the process, adding complexity and delay – and it would also be difficult to establish a consensus on the criteria such a Sewel committee would use for its filtering decisions.  More generally, there would be practical disadvantages to either creating an additional committee, or placing an additional burden on one of the existing mandatory committees (such as the already overburdened SLC). 

176. For these reasons, we have concluded that Sewel scrutiny should continue to be carried out mainly by the existing subject committees.  We believe this ties in well with the established principle of all-purpose committees that build up expertise in their subject-areas and can then bring it to bear in considering whatever items of business are referred to them.  We recognise that this approach has problems of its own, given the uneven distribution of Sewel motions across the remits of the subject committees and the contribution this makes to the difficulty some have in finding time in their work programmes for inquiries of their own choosing.  But our proposals should at least improve the position by giving subject committees more advance notice of the Sewel scrutiny they will be expected to carry out, and the time and information they need to do so effectively. 

177. As an additional point, we recommend that any Westminster Bill that would confer on Scottish Ministers new powers to make subordinate legislation should be considered by the Subordinate Legislation Committee (SLC).  That committee is already required by Rule 9.6.2 to consider any provision in a Scottish Parliament Bill that confers such powers, and we believe it is important that all such provisions are subject to equivalent scrutiny.  However, in view of the SLC’s already heavy workload and its reduced ability to secure changes to the relevant provisions in a Westminster Bill, the new Rule we recommend does not require the SLC formally to report to the lead committee on each Westminster Bill (as it has to on each Scottish Parliament Bill).

Referral by the Bureau

178. The current informal system of referral to subject committees exists because the current Rules do not give the Bureau any role in relation to the Sewel process.  However, as soon as Sewel memorandums become a category of Parliamentary document recognised by the Rules, it is a simple matter to give the Bureau a formal role in referring them to a lead committee.  We recommend that the basis for this role should be the same as for Bills and SSIs – in other words, to refer the Sewel memorandum to the committee within whose remit it falls or, if there is more than one suitable committee, to recommend to the Parliament which should be the lead committee. 

Role of the committee

179. We envisage the lead committee carrying out Sewel scrutiny in much the same way as it scrutinises other items formally referred to it, such as Bills and SSIs.  It should consider the memorandum, take such evidence as it considers appropriate, and then prepare a report.  Where the relevant provisions are minor and uncontroversial, the scale of the scrutiny could be quite modest – the committee might be satisfied on the basis of the memorandum alone, perhaps supplemented by oral evidence from Executive officials.  With more substantial provisions, and assuming time permitted, it might wish to carry out a full-scale inquiry involving a call for written evidence and oral evidence over a number of meetings.

Criteria for assessment

180. Some witnesses have suggested that the Parliament adopt a set of standard criteria for committees to apply, in order to decide whether a particular proposed Sewel motion is appropriate.  But we do not think that an essentially political decision can be reduced to a box-ticking exercise in the way that this implies.  Any criteria capable of being applied across a wide range of possible circumstances would have to be in fairly general terms.  To secure political consensus, they would also need to be fairly loosely worded – the Executive, in particular, is unlikely to accept any narrow limits on its discretion to pursue the Sewel route where it considers that to be appropriate.  This makes it unlikely that agreeing a set of criteria would reduce the scope for political disagreement – it would simply displace the focus of that disagreement to whether the criteria applied in the circumstances of a particular Bill. 

181. That is not to say that criteria of appropriateness do not have some role to play.  There is general acceptance that the Sewel route is more suitable in cases where the provisions are minor or technical, where cross-border issues are prominent, or where having a different Scottish regime would lead to loopholes or evasion; and there is also general recognition that it should not be used to avoid the Parliament engaging in controversial debates on major aspects of devolved policy, when a separate Scottish Parliament Bill would be the appropriate alternative.  But we still think members need to consider each case on its merits and we do not think it would be helpful if they were seen to be hiding behind a procedural checklist.  

Committee report

182. While we think it important that the lead committee’s scrutiny should always conclude with the publication of a report, this need not always be a lengthy document.  In straightforward and uncontroversial cases, it could set out its conclusions in only a few lines.

183. As a matter of good practice, we would expect the committee’s report normally to address separately the general merits of the policy contained in the relevant provisions of the Westminster Bill, and the justification for using the Sewel route in these circumstances.  As already indicated, we would encourage committees to include in their reports any comments they may have on the terms of the draft motion.  We would also expect these reports normally to conclude with a clear recommendation to the Parliament on whether to give consent under the Convention.  However, it should also be open to the committee not to make such a recommendation where it does not wish to do so – just as a Stage 1 lead committee need not make a recommendation on whether the general principles of a Bill should be agreed to. 

184. We recommend a Rule, similar to that recently introduced in relation to Stage 1 reports (Rule 9.6.3A), stipulating a normal minimum of five working days between the publication of the report and the debate in the Chamber, to ensure that members have a reasonable opportunity to read it in advance.  The “normal” qualification recognises that this will not always be practicable, depending on the circumstances (some of which are beyond the Parliament’s control).

Legislative consent motions

Terminology

185. We have given some thought to the question of terminology, particularly in the context of “Sewel motions” themselves.  The term is now a fairly familiar one among MSPs and others closely associated with the Parliament, but it has a number of disadvantages.  For one thing, it has never been more than a convenient label, almost a nickname, that emerged without ever being officially imposed.  It is also somewhat arbitrary – the statement made by Lord Sewel might well have been made by a different Minister had the issue arisen at a different stage of the devolution process.  In any case, its relevance has declined now that Lord Sewel has ceased to be a Minister, and now that the Convention has been extended to cover other matters he had not envisaged (and to which he does not wish his name attached).  Finally, it is a distinctly uninformative term – to the uninitiated, it gives no indication of what sort of motion is involved.

186. Even under our current informal procedures, “Sewel” has not been considered a suitable term to be used in a formal, Parliamentary context (such as in the Minutes of Proceedings), and we would not now wish to enshrine it in the standing orders.  Instead, the new Rules we recommend refer to “Legislative Consent Motions”.  We believe this is a suitably concise but also largely self-explanatory term, and is one we hope will gain general currency within the Parliament and beyond, marking the transition to a more structured Parliamentary process.  We acknowledge, however, that “Sewel” is a sufficiently well-established term that it is unlikely to disappear from use in the near future.20

Lodging the motion

187. As already noted, we recommend that any MSP should continue to have the right to lodge a Sewel motion, although this right is now to be qualified by the requirement first to lodge a memorandum.  In addition, we recommend that an MSP who is a member of the Parliamentary Bureau should be entitled (with the agreement of the Bureau as a whole) to lodge such a motion on behalf of the Bureau.  This could be a useful way of indicating cross-party support – for example, where the lead committee has unanimously recommended support for the motion. 

188. In most respects, these motions will continue to be governed by the normal Rules on motions – for example in relation to the manner of lodging, the general criteria of admissibility and the ability of other MSPs to indicate their support.  However, in the interests of a structured two-stage scrutiny process, we recommend that the Legislative Consent Motion should not normally be lodged until after the lead committee’s report has been published (so that its wording can take account of any recommendations made by that committee).  Exceptions to this may, of course, be justified where the Westminster process allows little time for consent to be obtained.

Wording of motions

189. We recommend greater standardisation of the wording that conveys the Parliament’s consent under the Convention.  These motions are not just expressions of view whose purpose is limited to providing a platform for a debate; they are “operative” motions, intended to achieve a specific effect in the wider world.  As such, they should leave as little room for doubt as possible about the nature of what MSPs are being asked to endorse, and about the extent of the consent conferred by the resulting resolution. 

190. We believe that each motion should clearly state that the Parliament consents to the United Kingdom Parliament legislating for a devolved purpose, or legislating to alter the legislative competence of the Parliament or the executive competence of Ministers, or both (as the case may be), by means of provision made by the Bill in question.  The motion should always identify the Bill by its short title and by the date and House of introduction, to avoid confusion with any other Bill of the same title that may be introduced in later sessions (for which separate consent would be needed).  If it is possible to do so concisely and accurately, the relevant provisions should also be identified (e.g. by Part or clause number) – although sometimes the drafting structure and subject-matter may prevent this. 

191. With some uncontroversial Bills, this basic standard wording, without further conditions or qualifications, may be considered sufficient – in which case the effect of the resolution would be to enable Westminster to amend the Bill as it saw fit without the Parliament’s consent being called into question.  But with more contentious Bills, there may well be a desire to set more specific parameters on the extent of the consent conveyed by the motion (either as part of the original motion, or by amendments to it).  In such cases, we recommend that the additional wording used should be as objective as possible, setting parameters by reference to what the Bill either should continue to do or should not do.  For example, a motion might state that the Parliament’s consent for provision creating a new criminal offence only applies so long as the Bill continues to make that offence subject to a specified minimum (or maximum) penalty.    

192. We believe this approach to the wording of motions is preferable to what has usually been the practice thus far – namely, motions whose “operative” wording has been in very general terms, and which otherwise have consisted of the expression of the policy perspective of the Executive parties.  This can provoke other parties to take issue with the terms of the motion even where they agree with the outcome it is aimed at securing.  It also creates scope for uncertainty about exactly what has been consented to, and hence for disagreements about whether that consent has been respected by Westminster.  We note the contrast with the simple, purely operative, motions the Executive has always used in relation to its own Bills (“That the Parliament agrees that the —— Bill be passed”).  Changing to the approach we recommend would not prevent the Executive, or the other parties, from openly expressing their different perspectives during the debate – but it would enable them then to vote for a motion that expresses what unites them, rather than what divides them.  

Taking the motion in the Chamber

193. Under current arrangements, because it is only the Executive that has lodged Sewel motions, it has always been able to ensure that they are taken in the Chamber – even though, procedurally speaking, they are subject to the same process of selection that applies to most other motions (many of which, of course, are never taken).

194. Now that there is to be a Rule dealing specifically with how these motions are handled, we believe it should require every such motion to be taken by the Parliament.   This will, of course, include any non-Executive motion lodged.  We don’t think this makes the Rules vulnerable to abuse – non-Executive motions are unlikely to be lodged frequently, even in very different political circumstances from those currently prevailing, and the new Rules otherwise discourage their being lodged lightly or speculatively.  Also, since any such motion can only be lodged where Westminster already has under consideration a Bill that impinges on the Parliament’s interests, we believe it is important that the Parliament should then express a definite view one way or the other (just as it must do with any Member’s Bill that reaches Stage 3).  Given that the Sewel Convention is about communication between two Parliaments, we believe that if Westminster is to be denied the consent it needs to proceed, this should be done by the clear rejection of a motion proposing such consent – and not just by default, as would be the case if the Parliament was denied the chance to make the decision. 

195. However, we also think it important that there should be no automatic expectation of a Chamber debate on every such motion.  As with other motions, it should remain for the Parliament (on the Bureau’s recommendation) to decide whether to set aside a period of time in the business programme, or simply to provide an opportunity for a motion to be formally moved and the question put on it at Decision Time.  

Debating the motion

196. There is clearly a widely-held view that insufficient time has sometimes been allocated for Chamber debates on the more substantial Sewel motions.  We endorse this view.  On the other hand, we also recognise that – even with Executive motions – there may sometimes be general agreement that there is no need for a motion to be debated at all in the Chamber, assuming there has already been adequate committee scrutiny (to which any member can, after all, contribute), or that a short debate would be sufficient.   

197. While we recognise the primacy of the Bureau in relation to the timetabling of Chamber business, we recommend that it should routinely take into account the view of the lead committee on the length of debate (if any) likely to be required.  Since timetabling decisions have to be made quite far in advance, it is unlikely to be practical for the lead committee to express its view as part of its published report; instead we envisage a more informal approach from business managers while the committee’s scrutiny is under way. 

Monitoring and further scrutiny

198. In one sense, the decision the Parliament has to take on a Sewel motion involves answering a simple Yes/No question – the Parliament either gives its consent in a particular instance, or it does not.  And the practical reality is that if it does, it hands over the control of that legislation very largely to Westminster to do things in its own way and according to its own system.  But, as we have recognised, it must always be open to the Parliament to set limits on the consent that it gives, depending on the particular circumstances of the Bill and the political views of members.   

199. There is a connection here with the more practical question of what happens after a resolution has been passed – whether the Parliament actively monitors the progress of the Westminster Bill, with a view to conducting further scrutiny, or whether the decision to give consent is effectively the end of the process.  Again, we don’t see a single right answer here.  With the straightforward and uncontroversial cases, there may be little interest in further scrutiny once the resolution has been passed – the feeling may well be that Westminster can safely be left to get on with it (subject to the assurances provided under the Convention, and reinforced by the new Rules we recommend, that further consent will be sought if the limits of the Parliament’s consent are breached).  But in other cases, there may well be a concern among committees in particular to continue to follow the debate as it takes place in Westminster, perhaps with a view to making further input. 

200. We do not make any general recommendation on this issue – it must be something for the committees and MSPs involved to decide in each instance.  If they do wish to be kept informed of progress with a Bill, they can either invite the Executive to keep them regularly updated, or seek assistance from the Parliament’s Information Centre (SPICe).  But however such further monitoring is carried out, it needs to be clearly understood that this does not affect the status of the consent already conferred.  That consent may include limits, but it is not provisional – it entitles Westminster to consider and then pass the legislation without further reference to the Parliament (so long as it stays within those limits).

201. We do not therefore support the suggestion made by some witnesses of a second opportunity to consider the Westminster Bill at the end of its passage with a view to either confirming or withdrawing the Parliament’s earlier (and by implication provisional) consent.  We believe this would simply add complexity to the process and inappropriately blur the boundaries between the roles of the two legislatures, with no obvious advantage.  It also has severe practical problems – there would be no point in the Parliament taking such a final view until the Westminster Bill was in its final shape, by which time, by the same token, Westminster would be unable to remove or amend the relevant provisions should the Parliament decide to withhold or qualify its consent. 

202. We have considered whether there might be a way round this problem if the Parliament (or the Executive) was given a veto over commencement of the relevant provisions in Scotland.  But, while that is something the Government might be prepared to consider in some particular circumstances, it would certainly not be a realistic expectation in other cases – for example, where the rationale for using the Sewel route was to enable the coordinated introduction of a seamless statutory regime on both sides of the border.  More generally, we do not think it is politically realistic to expect the Government to accept a system in which it would be denied any certainty about whether it had the Parliament’s consent until the very end of the legislative process.

Changes to Westminster procedures

203. The focus of this Report has been on improving the way this Parliament undertakes Sewel scrutiny.  Strictly speaking, that is all our remit entitles us to do.  However, we hope it will not be considered inappropriate if we include, in a spirit of constructive inter-Parliamentary dialogue, some suggestions for changes to associated procedures in Westminster. 

Tagging of relevant Bills

204. It would assist everyone involved in the Sewel scrutiny of Westminster Bills, both in Westminster itself and in this Parliament, if the relevant Bills were more clearly identified as such at an early stage.  These are judgements that are already made within Government well before introduction, and it is something that the Parliamentary authorities in the two Houses should also be alert to when advising on prospective private members’ Bills.  One option might be for a system of certification by the Speaker, with Bills thus certified being labelled appropriately in official lists of Bills in progress throughout their passage.

Improved Explanatory Notes

205. On a similar basis, it would be extremely helpful if the Explanatory Notes required for all Government Bills included a standard section on the Sewel implications, if any, of the Bill.  This could contain some of the same information that the new Rules we recommend would require to be included in the Executive memorandum – particularly, an indication of which provisions are the relevant ones, and whether they are for devolved purposes or to alter the competence fo the Parliament or the Executive (or both).  (For the majority of Bills that contained no such provision of either sort, a single sentence saying so would be all that was required.)  Where the Notes are reprinted in revised form for the second House, it should normally be possible by then to include the terms of the Parliament’s resolution – so that members of that House are clearly aware of its existence and of any limits it imposes.

Communicating the Parliament’s view

206. Finally, we recommend the establishment of a mechanism for the Parliament to communicate its “Legislative Consent” resolutions directly to Westminster.  However much the routine practical workings of the Convention operate largely through Government and Executive channels, the resolutions themselves clearly involve one Parliament speaking to another.  We therefore think it would be appropriate for the Presiding Officer to send copies of each such resolution to the Speaker of the House of Commons and to the Lord Chancellor (as speaker of the Lords).  It would then of course be up to those officers to decide how to communicate the receipt of the resolution to their Parliamentary colleagues – for example, orally in the Chamber, or through a notice in the relevant order paper.

207. We don’t think it need be part of this new mechanism that lead committee reports are also sent formally to the two Houses.  Like all committee reports, they are reports to this Parliament, not to Westminster.  Also, the overall Chamber view may differ from that of the committee, whose report is in any case only one of a number of additional documents that could be of relevance (including the Official Report of the Chamber debate).  A final reason is that, because of the different roles that Westminster committees have in the legislative process, there are no equivalent Westminster committees to which our lead committee reports could be referred.21  Instead, it must be left to individual Westminster members to seek out these reports, and other relevant documents, for themselves.  At least a formal notification that the Parliament has passed a resolution will alert them to the fact that Scottish Parliament scrutiny has taken place.

Recommendation

208. We recommend to the Parliament that the process outlined in this Report forms the basis for how, in future, it considers and decides on proposals made under what has become known as the Sewel Convention.  In particular, we recommend that it agrees to the new Rules set out in Annexe A to provide a structured and transparent system of scrutiny of what should now be known as Legislative Consent Motions and their associated memorandums.  While we recognise that there will, quite properly, continue to be political disagreements about what to do in particular cases, we hope and expect that this will enable the Parliament to air those disagreements within the parameters of a procedural framework accepted by all sides. 

summary of conclusions

209. The Procedures Committee has conducted this inquiry conscious of widespread criticisms made about the operation of the Sewel Convention.  We believe that it is in no-one’s interests for a significant aspect of the Parliament’s business, and its principal interface with the Westminster Parliament, to be so dogged by controversy and misunderstanding.  (paragraphs 1 to 4)

210. Our aim in this report is twofold.  At a procedural level, locating the current, largely ad hoc procedures within the framework of the Rules should enable better information to be made available, enhancing the opportunities for scrutiny and increasing transparency.  In so doing, we hope to give the Parliament shared ownership in what has hitherto been regarded as a device used by and for the Executive alone.  At a political level, there is a broader goal – to secure a degree of consensus about the general need for procedures of this sort and a shared understanding of when and how they should be used, and at the same time to lay to rest some of the persistent misunderstandings that have arisen. (paragraphs 5 and 6)

211. We recognise the need for a mechanism along the lines of the Convention.  Its purpose is to assert the Parliament’s political (if not legal) primacy in devolved areas – any legislation must either be the product of its own deliberations or require its explicit consent.  Either way, it remains in control.  We believe that this is a fundamental principle for the Parliament, and it is one we strongly endorse. (paragraphs 126, 129)

212. Our main recommendation is for a new set of Rules to regulate the Sewel scrutiny process within the Parliament.  We have aimed to devise procedures that are sufficiently flexible to accommodate all the circumstances that we think may arise.  We don’t see Sewel procedures as just being about enabling the Executive to obtain the consent it needs as part of its agreement with the UK Government.  They are also about the Parliament as a whole maintaining awareness of what is happening at Westminster that impinges on its area of interest and responsibility, so that it is in a position to engage with that process in a timely and well-informed way.  (paragraphs 138, 140, 146)

213. We recommend that the Executive should provide information about the implications of the Bills announced in each Queen’s Speech in a letter to the Presiding Officer, copied to all MSPs including committee conveners, and then brought prominently to the attention of the public through the Bulletin. (paragraph 149)

214. The memorandums provided by the Executive should become formal Parliamentary documents, required under standing orders.  The Executive memorandum should either explain why the Executive intends to lodge a Sewel motion, or why it does not.  In addition, any non-Executive member proposing to lodge a Sewel motion should also first be required to provide his or her own memorandum.  (paragraphs 153, 159, 162) 

215. On the question of when the Executive memorandum is required, we recommend that:

  • with any Government Bill introduced as a “relevant Bill” – that is, a Bill that makes provision for a devolved purpose, or that alters the Parliament’s legislative competence or the executive competence of Scottish Ministers – the memorandum should normally be lodged within two weeks of the Bill’s introduction;
  • with any Private Member’s Bill that is introduced as a relevant Bill, the memorandum should normally be lodged within two weeks of the Bill completing its first amending stage; and
  • with any Bill amended to become a relevant Bill, it should normally be lodged within two weeks of the amendments being tabled or supported by the Government, or otherwise being agreed to.  (paragraphs 165-169)

216. The memorandum should give an outline of the Westminster Bill as a whole, plus further information about the relevant provision made.  In most cases, it should also give reasons for supporting the provision that is to be made, and why it is considered better to make that provision in a Westminster Bill rather than by some other means – and should include a draft of the motion proposed.  But where the Executive is not intending to lodge a Sewel motion, its memorandum would require instead to explain its reasons for not supporting the Westminster Bill.  (paragraphs 170-72)

217. Sewel scrutiny should continue to be carried out mainly by the existing subject committees, with Westminster provisions to give the Executive new powers to make subordinate legislation also being considered by the Subordinate Legislation Committee.  It should be for the Bureau to decide (or recommend) which committee should be the lead committee.  The lead committee’s report should normally be published at least five working days before the motion is debated in the Chamber.  (paragraphs 176-178, 183, 184)

218. The motions – which we recommend are formally referred to as “Legislative Consent Motions” – should be capable of being lodged by any MSP, but normally not until after the lead committee’s report has been published.  The motion should clearly state what sort of consent is to be conveyed, and should identify the Westminster bill in question.  Any additional wording used to set parameters on the extent of the consent conveyed should be as objective as possible.  Every such motion lodged should be taken in the Chamber.  The Bureau should take account of the lead committee’s view before deciding how much time (if any) to allocate for debate on the motion (paragraphs 186-191, 194-197)

219. We make no particular recommendation on whether committees should undertake further scrutiny of Westminster Bills after a motion has been agreed to.  We do not support the idea of a second opportunity for the Parliament to consider the Bill at the end of the Westminster process.  (paragraphs 200-2002)

220. Although not, strictly, within our remit, we also suggest some changes to Westminster procedure, including “tagging” relevant Bills in Parliamentary documents, and mentioning any Sewel implications in the Explanatory Notes.  We also recommend that the Presiding Officer should send copies of any Legislative Consent resolution to the Speaker of the Commons and the Lord Chancellor.  (paragraphs 203-206)

ANNEXE A: PROPOSED CHANGES TO STANDING ORDERS

After Chapter 9A, insert—

“CHAPTER 9B

CONSENT TO UK PARLIAMENT BILLS

Rule 9B.1  UK Parliament Bills requiring the Parliament’s consent

1. In this Chapter, a “relevant Bill” is a Bill under consideration in the UK Parliament which makes provision (“relevant provision”) applying to Scotland for any purpose within the legislative competence of the Parliament, or which alters that legislative competence or the executive competence of the Scottish Ministers.

Rule 9B.2  Legislative consent motions

1.  A motion seeking the Parliament’s consent to relevant provision in a relevant Bill shall be known as a legislative consent motion.  A legislative consent motion shall identify the relevant Bill by reference to its short title and the House of the UK Parliament in which and the date on which it was introduced.   

2.  A legislative consent motion shall not normally be lodged until after the publication of the lead committee’s report in accordance with Rule 9B.3.5 below. 

3.  Every legislative consent motion lodged shall be taken in the Parliament. The Parliament shall not normally take such a motion earlier than the fifth sitting day after the day on which the lead committee’s report under Rule 9B.3.5 below is published. 

Rule 9B.3  Legislative consent memorandums
1. A member of the Scottish Executive shall lodge with the Clerk a memorandum (“a legislative consent memorandum”) in relation to—

(a) any Government Bill that is a relevant Bill on introduction, normally no later than 2 weeks after introduction;

(b) any Private Member’s Bill that was a relevant Bill on introduction and remains a relevant Bill after the first amending stage in the House in which it was introduced, normally no later than 2 weeks after it completes that stage;

(c) any Bill that, by virtue of amendments—

(i) agreed to; or

(ii) tabled by a Minister of the Crown or published with the name of a Minister of the Crown in support,
in either House, makes (or would make) relevant provision for the first time or beyond the limits of any consent previously given by the Parliament, normally no later than 2 weeks after the amendments are tabled or agreed to. 

2.  Any member (other than a member of the Scottish Executive) who intends to lodge a legislative consent motion in relation to a relevant Bill shall first lodge with the Clerk a legislative consent memorandum, but shall not normally do so until after a member of the Scottish Executive has lodged a legislative consent memorandum in respect of that Bill.  

3.  A legislative consent memorandum shall—

(a)    summarise what the Bill does and its policy objectives;

(b)    specify the extent to which the Bill makes provision—

(i)  for any purpose within the legislative competence of the Scottish Parliament; or

(ii) to alter that legislative competence or the executive competence of the Scottish Ministers;

(c)     in the case of a memorandum lodged by a member (including a member of the Scottish Executive) who intends to lodge a legislative consent motion, set out a draft of the motion and explain why the member considers it appropriate for that provision to be made and for it to be made by means of the Bill; and

(d)    in the case of a memorandum lodged by a member of the Scottish Executive who does not intend to lodge a legislative consent motion, explain why not.

4.  Notice of any legislative consent memorandum lodged shall be given in the Business Bulletin.  The Clerk shall arrange for the memorandum to be printed and published.

5.  The Parliamentary Bureau shall refer any legislative consent memorandum to the committee within whose remit the subject matter of the relevant provision falls.  That committee (referred to as “the lead committee”) shall consider and report on the legislative consent memorandum.  Where the subject matter of the relevant provision falls within the remit of more than one committee the Parliament may, on a motion of the Parliamentary Bureau, designate one of those committees as the lead committee.  The other committee or committees (“the secondary committee or committees”) may also consider the legislative consent memorandum and report its or their view to the lead committee.

6.  In any case where the Bill that is the subject of the memorandum contains provisions conferring on the Scottish Ministers powers to make subordinate legislation, the Subordinate Legislation Committee shall consider and may report to the lead committee on those provisions.”

Minor consequential changes:

In Rule 5.4 (business programme), after paragraph 2(a) insert—

“(aa)    any legislative consent memorandum or legislative consent motion;”.

In Rule 5.9 (Business Bulletin), after paragraph 2(g) insert—

“(ga)    notices of any legislative consent memorandums”.

In Rule 16.3 (Journal of the Scottish Parliament), after paragraph 2(aa) insert—

“(ab)    notice of any legislative consent memorandum lodged in accordance with Rule 9B.3, which notice shall give the name of the member lodging the memorandum, the short title of the UK Parliament Bill to which the memorandum refers and the date on which the memorandum was lodged;”.

In Rule 18.2 (index of defined expressions) after the entry for “legal proceedings” insert—

“legislative consent memorandum         9B.3

legislative consent motion               9B.2”

ANNEXE B: EXTRACTS FROM MINUTES OF PROCEDURES COMMITTEE

17th Meeting, 2004 (Session 2), Tuesday 21 December 2004

Work programme: The Committee considered its forward work programme and agreed that its next major inquiry would be on Sewel motions and that it would consider a proposed remit for this inquiry at its next meeting […].

1st Meeting, 2005 (Session 2), Tuesday 18 January 2005

Sewel Convention inquiry: The Committee considered the remit of its inquiry and agreed, with minor changes, a draft press release and call for evidence. The Committee agreed some of the witnesses that it wished to invite to give oral evidence and agreed to consider further such witnesses at its next meeting. The possibility of arranging informal briefings prior to the first oral evidence would also be investigated.

2nd Meeting, 2005 (Session 2), Tuesday 1 February 2005

Sewel Convention inquiry – witness expenses: The Committee delegated responsibility to the Convener for arranging for the SPCB to pay, under Rule 12.4.3, any expenses of witnesses in the inquiry.

Sewel Convention inquiry: The Committee agreed to invite Professor Michael Keating and Dr Paul Cairney, and Professor Alan Page, to give oral evidence in relation to the inquiry. The Committee disagreed by division (For 2, Against 4, Abstentions 0) to a proposal to invite Gerry Hassan to give oral evidence.

3rd Meeting, 2005 (Session 2), Tuesday 1 March 2005

Sewel Convention: The Committee took evidence from—

Rt Hon Henry McLeish; and
 
Lord Sewel.

Sewel Convention: The Committee took evidence from—

Mrs Anne McGuire MP, Parliamentary Under-Secretary of State, David Crawley, Head of Department, and Hugo Deadman, Head of Constitutional Policy Branch, Scotland Office.

4th Meeting, 2005 (Session 2), Tuesday 15 March 2005

Sewel Convention: The Committee took evidence from—

Alasdair Morgan MSP, former Convener of the Enterprise and Culture Committee; Pauline McNeill MSP, Convener of the Justice 1 Committee; and Alistair Carmichael MP.

5th Meeting, 2005 (Session 2), Tuesday 12 April 2005

Sewel Convention: The Committee took evidence from—

Bill Aitken MSP, Scottish Conservative and Unionist Party Business Manager; George Lyon MSP, Scottish Liberal Democrat Business Manager; Mark Ballard MSP, Business Manager, Scottish Green Party; and Margo MacDonald MSP, Business Manager, Independents Group.

6th Meeting, 2005 (Session 2), Tuesday 26 April 2005

Sewel Convention: The Committee took evidence from—

Dr Paul Cairney, Department of Politics and International Relations, University of Aberdeen; and Professor Alan Page, Department of Law, University of Dundee;

and then from—

Tricia Marwick MSP, Business Manager for the Scottish National Party; and Scott Barrie MSP, Chief Whip for the Labour Group.

The Committee agreed not to invite further oral evidence in the inquiry.

7th Meeting, 2005 (Session 2), Tuesday 10 May 2005

Sewel Convention: The Committee took evidence from—

Margaret Curran MSP, Minister for Parliamentary Business; Murray Sinclair, Head of Constitution and Parliamentary Secretariat; Colin Miller, Head of Constitution Unit; and Paul Allen, Constitutional Policy Unit, Scottish Executive.

8th Meeting, 2005 (Session 2), Tuesday 24 May 2005

Sewel Convention: The Committee considered the procedural issues raised in the inquiry and agreed that the Executive should be encouraged to give a more prominent “early warning” of Westminster Bills announced in the Queen’s Speech and likely to require a Sewel motion; that there should be a Rule requiring a Sewel memorandum (containing specified information and a draft of the Sewel motion) to be lodged shortly after introduction of the Westminster Bill, and giving the Bureau the role of referring it to a committee; that a specialist Sewel Committee was not required; that Sewel motions should be as clear and unambiguous as possible; that any member (or the Bureau) should be able to lodge a Sewel motion; that debates on Sewel motions should not normally take place less than a week after the publication of any committee report; and that the Bureau should allocate more time for such debates where the Bill in question has major policy implications. The Committee considered the policy issues raised in the inquiry and agreed that it was not necessary to specify criteria for the appropriate use of the Sewel Convention; that it should be left to the committee that considered the Sewel memorandum before the Parliamentary debate to decide whether to monitor the progress of the Bill at Westminster from then on; that the Executive should be expected to alert committees to significant amendments, and to explain to the Parliament any instance where the Bill as passed exceeded the consent previously given by the Parliament; that committees should be able to recommend how long was needed for debates on Sewel motions; that the Presiding Officer should communicate the terms of Sewel resolutions to the Speaker of the House of Commons and the Lord Chancellor; and that further consideration should be given to a new terminology to replace “Sewel” in this context.

9th Meeting, 2005 (Session 2), Tuesday 21 June 2005

Sewel Convention: The Committee provisionally agreed that the Scottish Executive should be required to lodge a memorandum in all instances where a provision either to change the law in a devolved area or to alter the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers is included in a Bill before the UK Parliament; that backbench members intending to lodge a motion seeking the Parliament’s consent to any such provision should also be required to lodge a memorandum; that an Executive memorandum should normally be lodged within 2 weeks of the relevant Bill being introduced in the UK Parliament; that all Sewel motions lodged should be taken by the Parliament; and that standing orders should refer to such motions as “Legislative Consent Motions”.

10th Meeting, 2005 (Session 2), Tuesday 13 September 2005

Sewel Convention (in private): The Committee considered a draft report and draft standing order changes.  A number of amendments were agreed to, one by division. 
   
* * * * * * * * * * * *

Record of division in private (10th Meeting, 2005)

The Deputy Convener proposed deleting two paragraphs of the draft Report (recommending that the Executive make an oral statement about anticipated Sewel motions arising from the Queen’s Speech); retaining an alternative paragraph (recommending that the Executive provide, instead, such information in writing); and moving a further paragraph (outlining certain limits to the information available at the time of the Queen’s Speech) in consequence.  The proposal was agreed to by division: For 5 (Cathie Craigie, Karen Gillon, Alex Johnstone, Irene Oldfather, Iain Smith), Against 2 (Chris Ballance, Bruce McFee), Abstentions 0.

11th Meeting, 2005 (Session 2), Tuesday 27 September 2005

Sewel Convention (in private): The Committee agreed, with minor changes, one by division, a revised draft report and draft standing order changes.

* * * * * * * * * * * *

Record of division in private (11th Meeting, 2005)

The Deputy Convener proposed that, in paragraph 124 (2nd bullet point), the words “without this at least being accompanied by more time for scrutiny and debate” be retained.  The Committee agreed to the proposal by division: For 4 (Richard Baker, Cathie Craigie, Karen Gillon, Alex Johnstone), Against 2 (Chris Ballance, Bruce McFee), Abstentions 1 (Donald Gorrie).


1 HL Deb, 21 July 1998, col 791.

2 Cm 5240, December 2001. Available on the website of the Department for Constitutional Affairs at www.dca.gov.uk/constitution/devolution/publications.

4 Category I Bills are those that don’t apply to Scotland or relate only to reserved matters, while category II Bills are for reserved purposes or make only incidental or consequential changes to devolved matters.

5 This means second reading in the House in which the Bill is first introduced, when the principles of the Bill are first debated.

6 In each House, the main stages of a Bill are Introduction & First Reading, Second Reading, Committee, Report and Third Reading.  Committee and Report are the main amending stages; in the Lords there is also a limited further opportunity for amendments on Third Reading.  In some cases, there may be further opportunities for amendment during the so-called “ping-pong” process when amended made by the second House are considered by the first, its further amendments then considered by the second, and so on.

7 This timing requirement also applies to PMBs introduced in the Lords, presumably on the grounds that it is not until such a Bill reaches the Commons that a realistic assessment can be made of its prospects of success.

8 Paper PR/02/9/3 for the 9th Meeting, 2002.

9 Both memorandums are reproduced in Annexe C.

10 For example: B. Winetrobe, “Counter-devolution? The Sewel Convention on devolved legislation at Westminster”, Scottish Law and Practice Quarterly, 2001, 6, 286; A. Page and A. Batey, “Scotland’s other Parliament: Westminster legislation about devolved matters in Scotland since devolution”, Public Law, 2002, 501; P. Cairney and M. Keating, “Sewel Motions in the Scottish Parliament”, Scottish Affairs, 2004, 47.

11 2nd Report, 2002-03, Devolution: Inter-institutional relations in the United Kingdom, paragraphs 129-132. The Committee returned to the subject briefly in its 15th Report, 2003-04, Devolution: its effect on the practice of legislation at Westminster, referring to the inquiry this Committee then intended to carry out (paragraph 54).

12 One motion covered three Bills; three Bills were each the subject of two motions.

13 The exception being the motion on the Serious Organised Crime and Police Bill, debated on 2 February 2005.  Amendments have been moved unsuccessfully on three other occasions. 

14 These were the first two Sewel motions lodged during the session, only shortly after committees were established.

15 For further details, see the SPICe fact sheet (last updated 4 March 2005) on the Parliament’s website at www.scottish.parliament.uk/business/research/subject/parliament.htm.

16 Other Westminster political parties were invited to send representatives but either did not wish or were unable to do so, perhaps partly because of the then forthcoming UK general election.

17 Here and in the remainder of this report, references to points made in written evidence are followed by a reference to the numbered paragraph of that evidence (e.g. “w 2” = paragraph 2 of the submission in question).  Written evidence is reproduced in Annexes D and E.

18 Debate on the Queen’s Speech, 29 November 2004, HL Deb, vol 667, cols 343-4.

19 See also the note by the clerk to the Committee reproduced in Annexe E.

20 Bruce McFee dissented from this and the previous paragraph.

21 See also the note by the Clerk to the Committee reproduced in Annexe E.