COMMISSION ON THE POWERS AND ELECTORAL ARRANGEMENTS OF THE NATIONAL ASSEMBLY FOR WALES

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

THE PRESIDING OFFICER OF THE SCOTTISH PARLIAMENT

RT HON SIR DAVID STEEL KBE

THE DEPUTY PRESIDING OFFICER OF THE SCOTTISH PARLIAMENT

MURRAY TOSH

CLERK/CHIEF EXECUTIVE OF SPCB

PAUL GRICE

held at

The Scottish Parliament

on

Thursday, 13th February 2003

THE CHAIRMAN: Thank you very much for coming. We are having a very interesting session, we had a very interesting day yesterday and are looking forward to a similar day today.

We are very grateful to you, you are one of the fundamental features of the Parliament. We were very grateful really to have your views on how it’s gone - what hasn’t worked and what has worked, and I wonder if for the sake of the record if you could really introduce yourself and your colleagues.

SIR DAVID STEEL: First of all, we are very glad to come and give evidence to you. I hope that the outcome of your work will be rather more positive and constructive than certain other places with which I am familiar.

On my left is Murray Tosh who is Convener of our Procedures Committee. I am sure therefore, that he will answer a lot of the detailed questions that I might not be able to answer. On my right is Paul Grice who is the Parliament’s Clerk and Chief Executive. I think coming towards the end of this four year Parliament, we have overcome some of the difficulties we had at the beginning, chiefly the difficulty of getting across to the public the difference between the Executive and the Parliament. It has been important for us to stress that the Parliament has a distinct and separate role, and that the Executive is answerable to the Parliament. In the public mind, the word Holyrood simply became one and the same thing and it was quite difficult to get people to distinguish between the two. My impression is that as we come to the end of the first four years, we have largely overcome that problem and that people now realise there is an Executive out there which may or may not be re-elected, but that the Parliament is here to stay and to continue to hold the Executive to account. I would say that is the principal change during our first four years.

MR TOSH: That is a continuing difficulty, although I think that more and more people are becoming to understand the difference. However, I noticed a headline this week in one of our more serious broadsheet newspapers, referring to Holyrood, when the story referred in fact to Executive actions, and not to the Parliament’s. This has been a recurring confusion in media coverage, and, while there are grounds for believing that media coverage is improving, there continues to be confusion among the general public.

THE CHAIRMAN: It’s a difficulty that people blame the Parliament in the sense of the Executive, that is a problem, That is what we are trying to deal with, it is?

MR TOSH: Yes, there’s always been a bit of collective blame culture in Scotland anyway. Whatever people think is going wrong, whatever people find unpalatable, the public reaction tends to be that the Parliament is responsible. While the Parliament obviously legitimises the Executive’s exercise of power in general, when it comes to detailed actions and decisions, the public is often reacting against the Executive, rather than something for which the Parliament is directly responsible. It remains true that people are not necessarily willing to distinguish between the two.

THE CHAIRMAN: But the Executive emerges from the state of Parliament after the election, is it?

MR TOSH: Yes, and in Parliament the Executive obviously attempts to push through its programme, but most Executive actions are taken by ministers under the powers delegated to them and their departments. When the public reacts to decisions which are taken in the name of Parliament, they are often really reacting to Executive decisions. I am a member of a non-executive party, which feels, as members of other opposition parties feel, that we are all targeted when the public is aggrieved at something which the Executive has decided to do, or legislation which it has passed through the Parliament.

THE CHAIRMAN: It is the Executive controlling the Scottish Parliament?

SIR DAVID STEEL: It is difficult to give a straight answer to that question. I think it is true to say that one thing which has not worked out exactly as it had been foreseen by the Consultative Steering Group, is the operation of the Parliamentary Bureau. The Bureau consists of the business managers of each party that has at least five elected members; so for practical purposes that has meant four parties have been represented on the Bureau. If there is a need to vote, which does not happen very often, then the Members vote accordingly. Voting is proportionate to the number of elected members in each Party. I have a casting vote, but this would never arise given the arithmetic involved. It so happens we have a coalition Executive consisting of two of the four parties represented on the Bureau. They therefore command a majority both in the Parliament and in the Bureau. To follow that train of thought, it means that they have a commanding majority in the Bureau for every decision. The Bureau decides on what we call the Parliamentary programme and what legislation goes to which specific committee – although in the case of the former, the business programme is put to the whole Parliament for a final decision. It also decides how long the committee stage of each bill will be and so on. So I have often felt that even though Chair the Bureau, I am impotent given that I have neither a vote nor an opportunity to use a casting vote. It is rather like being Chair of the usual channels at Westminster. When the Consultative Steering Group was drawing up plans for the Bureau I do not think they quite worked out that is how it would turn out to be in practice. I think they thought the Presiding Officer, as Chair of the Bureau, would have more say over the business of the Parliament than he actually has. Let me reiterate however that there are not many votes in the Bureau as the programme and the allocation of bills is developed by consensus so I do not want to give you the impression that we are told what to do by the Executive, that would give you the wrong impression.

THE CHAIRMAN: What happens if the Executive has a differing position on an issue of competence?

SIR DAVID STEEL: That has never happened.

THE CHAIRMAN: What is the constitutional position, do they have to resign or, you can’t force an election?

MR GRICE: There are provisions in case, following an election, it is ultimately impossible to form a government. Of course that could be a minority government, there is no requirement for a coalition to be formed. It hinges on the ability to select a candidate for nomination as First Minister. If that proves impossible within 28 days, another general election would follow.

SIR DAVID STEEL: But the fundamental difference is that unlike Westminster, the losing Government cannot call an election.

MR GRICE: It’s a slightly more transparent procedure in the Scottish Parliament.

MR TOSH: On the question of Executive control of the Parliament and its programme, one of the subtleties of the arrangements which we have at present - which I don’t think anyone ever really anticipated - is that the two Executive parties are very, very tight on the Bureau. The business manager of the principal Executive party is the Minister for Parliamentary Business, while the smaller party’s business manager is also the deputy Minister for Parliamentary Business. So the link is strengthened by the bond between the senior minister and junior minister, and the fact that the two of them are briefed by the same set of officials. They therefore work more tightly together than was expected, and they command the majority of votes on the Bureau, with the result that, if any challenge is made to the Executive there, the outcome of any vote is a foregone conclusion. The opposition parties will therefore rarely challenge and force a vote, except if they see a major point of principle, where they wish to put their views on the record, perhaps to justify political criticism of the decision later.

SIR MICHAEL WHEELER BOOTH: Very useful, but we were told however that there had been, so to speak, a split on, I think it was a debate on Iraq and the Liberal Democrats were anti Westminster government policy on Iraq and the result was that in the bureau they didn’t have therefore a automatic majority but on the floor of the House they got a majority with the support I think of the Conservatives, is that right, so it’s not…

MR TOSH: Yes, that is what happened, but that is a separate issue from the determination of Parliamentary business. In debates themselves, the coalition partners both support Executive motions and amendments, although, in the Iraq debate, the Liberal Democrats lodged their own amendment. Over the four years of the Parliament, there have been two or three occasions also when the Liberal Democrats have lodged their own amendment to an opposition motion, and the majority Executive party has agreed to go along with the Liberals, so that the amendments in question became Executive amendments. There was one occasion when all motions and amendments were rejected, on something on which there was a disagreement between the Liberals and the Labour party which they could not resolve.

SIR MICHAEL WHEELER BOOTH: But that is less control over Parliament than the government business managers have in the House of Commons.

SIR DAVID STEEL: Well, it was more complicated by the fact that we were discussing a reserved matter. The parties each decided to follow the policy of their party at Westminster. It was a somewhat unusual situation.

MS SUGAR: Could I go back to the procedure from the business bureau and your role as a Presiding Officer, does a report go from the bureau to the Parliament as a recommendation which would give you a opportunity if you had been deeply unhappy about a vote in the bureau but actually address all the members and where do you take your advice from?

SIR DAVID STEEL: That has never happened and in fact I find it difficult to imagine I would get away with making comments to the Parliament about what had gone on in the Bureau. The decisions of the Bureau are minuted and a note of decisions is made available to all MSPs. Votes are also recorded, so Members can see where there has been disagreement. A Presiding Officer would be in a very difficult position if he were to say to Parliament that he had disagreed with a decision taken by the Bureau. I am the Chair of the Bureau I have to go along with what it decides.

MS SUGAR: To go back to the beginning, you said that you did not have a vote in the bureau and I suppose your role is also to be a sort of guardian of propriety and the spirit of the Parliament and if you were faced with the decision that the two parties who were manipulating the system for political advantage in a way you felt unhappy about, what you say to us is you have no recourse…

SIR DAVID STEEL: I have to say that has not happened, I would not want you to misinterpret anything I have said. The Executive has a majority and that is a fact. I did not say they manipulated it. What often happens in the Bureau is that if an issue arises I will give my view, or make a suggestion as to how the issue might be resolved. Members do not always take my advice or agree with me but then they are not bound to. I do have a say - sometimes they accept guidance and some times they say "that is all very interesting but we don’t agree" and there is nothing I can do about it. But I can assure you that there has never been an issue where I have felt so strongly that I would want to make a fuss about it.

MR TOSH: One of the difficulties is that we only see on the Bureau those areas where there are differences among the party business managers which they cannot resolve beforehand. They do actually hold a pre-meeting among themselves, and there is also extensive bi-lateral contact in the period before meetings. A lot of the difficulties and disagreements are resolved by what you might call the usual channels. The Bureau tends to be the forum where the decision taken is validated, or the disagreements which have taken place are noted for the record. Opposition party business managers would usually force a vote at the Bureau, when they intend that, when the Bureau’s business motion is moved in the Parliament the next day, they will move and vote against it. They feel obliged to flag up to the Bureau the fact that they are not happy with the decision. As Sir David says, business usually rolls forward quite smoothly and amicably, and disagreements tend to be at the margins, for example over whether a debate should have allocated to it two hours or two and a half hours, or whether we should have the debate this week or next week.

THE CHAIRMAN: Given what was said so to speak from the outset and I don’t speak for everyone on the Commission but discussing what is interesting is the degree of consensus that there seems to be between the parties and the operations of the Scottish Parliament. There is agreement on timetabling of bills in London, there is agreement on how long people take in committees. You know, this is, we have been told this is a different style of politics. Do you think that is a fair description of what you are doing here?

SIR DAVID STEEL: There is more agreement than disagreement on how the Bureau is run. We had a disagreement yesterday, for example, over why we were not holding a fisheries debate, given the current situation. It is quite an emotive issue but when you look at it closely, the disagreement was limited to timing and whether you hold a debate this week or next week. But as I have already said, by and large, we reach agreement by consensus in the Bureau most of the time.

MR ROWLANDS: Part of our remit is whether the Assembly should have legislative powers and I wonder if we could explore with you what the implications are and what the impact of legislation has had on Parliament, for example, when you started out four years ago, what were the kind of cost of estimates that you had and what it would cost and what staffing would be required from the Parliament end to, as it were, fulfil the legislative function, and how different in the last four years that has turned out because we understand that you have done 60 bills again in those four years, which is a huge increase on anything done previously and we need some spear on what impact using the legislative powers of this kind has on Parliament, on the staffing costs and whether it has distorted the role of committees in any way and if you could share your thoughts with us on that?

SIR DAVID STEEL: We certainly found quite early on that we needed more staff and needed to support committee meetings for longer than had been anticipated in the discussions before the Parliament came into being. That incidentally had a knock on effect on the new building because we had to increase its size from the original plan. There is, of course a basic difference between Scotland and Wales, in that we have our own legal system. My impression is that in this first Parliament we have been picking up quite a lot of legislation which had been drafted following Scottish Law Commission reports and the like, and which did not make it into the Legislative Programme. I understand that the Scottish Parliament has passed around 44 bills, and it will probably be nearer 60 by the time we have completed our first four year session. That compares with only a handful of Scottish bills per annum at Westminster. I have a hunch that in the Second Parliament there might not be quite the same volume of legislation that we have had in this first Parliamentary session because all the sweeping up will have been finished by now. Certainly it has been quite a burden on our committees. We had to split, for example, the Justice Committee into two Justice Committees simply because there was so much legislation in the field of justice that that had to be dealt with. It is not very satisfactory and I would hope perhaps in the next Parliament that we can go back to having just one Justice Committee. If I might take another committee - the Health and Community Care Committee for example. As you can imagine, health is a popular issue and the Committee set off with a whole list of issues they wanted to have inquiries into. However they soon discovered they were so busy dealing with legislation that they simply could not get on with their inquiries and other work. I know they have been unable to get through the agenda that they wanted to.

MR ROWLANDS: I would be very grateful if you could tell us what were the estimates at the beginning of this when you were setting up this model, what you thought it was going to cost Parliament to run the legislative side of things and what this actually turned out to be among other things to actually produce the cost to what we recommend as well?

MR GRICE: The set up we have broadly mirrors what you would find at Westminster, for example, the staff includes a team of clerks, lawyers, official reporters and research and information services. Indeed in some cases, and very deliberately, for example in relation to the research and information service, we looked to replicate, though in a different setting, the House of Commons library given its success. We can’t point to is an original estimate because we deliberately started on the small side on the ground before we had a Parliament. We had to provide services from day one. We succeeded in doing that. But it was important in my view to leave room for organic growth, led by the Parliament. So, for example, we have, in the event, provided a substantial increase in the research and information services because there has been a clear demand from the Parliament. We have beefed up the clerking support because there are more committees than we envisaged. And, necessarily, we have had to have more official reporters, again to cope with the level of business. Even more significant, has been engaging with the public. That’s been a feature of the Parliament from the outset and one that continues to develop. There is a very clear demand that this Parliament should continue to make major efforts to encourage public participation, so we have a substantial education service as well as broadcasting and media teams. These are features of this Parliament which have become more enhanced. The total staffing complement is now just under 500. We are in another period of uncertainly as we approach the move to the new building. There may be some savings in some areas but increased demand in others. For example, we are expecting between 6 and 700,000 visitors a year to the new building compared to around 80,000 a year here. That is going to place an enormous burden on the Parliament to cope positively with them. I would be more than happy, if the Commission is interested, to let you have details of our staffing structures and overall running cost estimates.

THE CHAIRMAN: I think that would be very helpful the way it’s developed.

MR ROWLANDS: If there is any way you could relate it to the function of legislation, I realise presumably members as opposed to the Executive have the equivalent of support like the public bill for us in the Commons where you know, a member can go and advise on and stick amendments down where in order or assisting in drafting non-executive bills and all the rest of it?

MR GRICE: One difference, as you raised it, is that non-executive legislation is relatively more significant. In particular, as you no doubt know, are the powers that committees have to initiate legislation and also the relatively greater opportunity for Members’ bills to succeed once introduced. They can’t be talked out in the same way as they can at Westminster. We established a non-executive bills unit which has the capacity to support committees and members. As we also have a panel of draughtsmen, so we have our own, independent drafting capacity.

MR ROWLANDS: How big is that?

MR GRICE: We have five draughtsmen which provides a reasonable level of capacity. The two biggest non-Executive bills to date have been the Standard’s Commissioner Bill and the Children’s Commissioners bill. These are very substantial bills compared, for example, to the more traditional, though important measures such as those on dog fouling which is important. We have had to staff up quite significantly but, as I think as Sir David would tell you, we have probably not quite yet got the political control mechanisms right to determine just how much non-executive legislation is appropriate. We are still feeling our way.

MR TOSH: One thing which has taken us by surprise in the legislative field is in the area of overlap between our responsibility and Westminster’s. The devolution settlement contained a provision introduced by then Scottish Office Minister Lord Sewel, and known thereafter as Sewel motions, where we can agree to allow Westminster to legislate within the devolved areas. It was not expected that the Sewel process would be used very much but in practice it has been used quite regularly. There have been cases where it is seen as essential that a UK bill must apply to Scotland, Prevention of Terrorism for example; and there are other circumstances where we have seen it as an opportunity to apply Westminster legislation to Scotland, the Adoption of Children having been one of the areas in question. In fact we’ve had about 30 Sewel motions, which have generally been debated in the Parliament and which have generated a huge amount of controversy. There is a minor academic industry in this field, and some journalists who have written articles about how Parliament is handing away its powers. The old Enoch Powell nostrum about how power devolved is power retained is regularly trotted out, and this is an area where we have not fully sorted out our procedures and processes. We need to review these processes, so that we are actually agreed on when we should act and when it is sensible to let Westminster act. A lot of the debate is politically motivated, an attack on devolution as opposed to independence, and it has consumed more time and more heat than I think we envisaged. It remains a case of unresolved business.

THE CHAIRMAN: We were exposed to some of that yesterday.

MR ROWLANDS: About the framework of the standing orders and also the broader issues of CSG and the report of the review of that and we had evidence from the Presiding Officer of Wales, he talked a lot about novel circumstances and so on. I just wondered whether you could outline how sustainable and how satisfactory the standing orders as a Presiding Officer and whether there have been any pressure points or you can anticipate there are likely to be any pressure points in the future?

SIR DAVID STEEL: I think the standing orders have proved pretty good really. The Procedures Committee does occasionally undertake a revision of the standing orders.

MR TOSH: Well we have had one major review of the standing orders where we effectively revised the whole corpus of standing orders, which were contained in a Transitional order, and we transposed them into our own set of standing orders. Since then we have had 7 or 8 reports to Parliament where we have addressed specific areas in the Standing Orders, on a chapter by chapter or section by section basis.

SIR DAVID STEEL: There has not been anything absolutely fundamental in the Standing Orders that has been changed. I think it has all been fine tuning here and there. I suppose one area which is a bit controversial is whether the Presiding Officer should have any control, perhaps that’s too strong a word, any judgement, over the length of Ministerial answers at oral question time. This is a regular complaint I receive from Members. I can reprimand a questioner for deviating from the subject matter or for taking too long over the question, but I cannot actually stop Ministers from going on too long in the answers they give. That is an issue that is being looked at.

SIR MICHAEL WHEELER BOOTH: Why not?

SIR DAVID STEEL: The standing order is quite specific. Supplementary questions must be brief so you pray that in aid, but there is no similar standing order which says Ministers should be succinct and to the point.

THE CHAIRMAN: Is there a time limit on a question?

SIR DAVID STEEL: No. We do not operate as you do in the Welsh Assembly. The only time limit is the total time for questions. There is no time limit on each individual question - it is very much at the discretion of the Presiding Officer.

THE CHAIRMAN: You can cut off the question and move on to the next questioner.

SIR DAVID STEEL: Yes, that is a judgement I have to make all the time.

THE CHAIRMAN: Is it at Westminster that you have to call people?

SIR DAVID STEEL: Yes. In the Scottish Parliament, Members indicate electronically that they wish to speak. Their names appear on the screen in front of me. But the concept is basically the same. If six members want to ask a question, I may pick three or something like that. But I have to balance such things as the size of the Parties, whether someone has been called already that day set against someone who has not been called, and the time you allocate to a particular question may depend on the importance of the subject matter as you judge it. That is the kind of judgement we have to make the whole time.

THE CHAIRMAN: Can your judgement be challenged?

SIR DAVID STEEL: I do not think my judgement has ever been challenged - that happens in other Parliaments.

MR TOSH: To go back to the original question about standing orders and the CSG, I think the standing orders have worked well. I think the Parliamentary processes have worked as envisaged. The CSG, the Consultative Steering Group, set out large, overarching concepts to apply to the Parliament’s working, and, without necessarily defining all of the details, they nonetheless laid down principles which can be extrapolated to cover the activities of the Executive. There are therefore some areas where we could argue the CSG principles are perhaps not being translated effectively into practice. Although the Parliament, its standing orders and the committees are working within the CSG’s principles, there are gaps. For example, concerns have been expressed about scrutiny of the work of Executive agencies, or about the whole functioning of the Civil Service, areas which are within the Executive’s sphere but nonetheless impact on Parliamentary processes. The CSG tended to turn a bit of a blind eye to a lot of these processes, which we would like to bring much more clearly within the ambit of the CSG principles.

MS MCALLISTER: Is the principal sharing of power, has that been problematic in terms of the Executive?

MR TOSH: That is extremely difficult. It’s difficult to define it, and difficult to explain what it means. Effectively, sharing power meant that the Executive and the Parliament would share power with the people and a large network of groups in a complex civil society, which is very rich and highly developed in Scotland. The Parliament has tried to do this. Parliament has very extensive procedures for involving the people in its committee enquiries, and in taking evidence on bills. Also, the Executive has worked up much more precise and thorough approaches to consultation than was ever the case before. It has built up relationships with various organisations as ‘gateways’ to involve civil society - the Scottish Civic Forum being the principal example of that – in dialogue on policy and legislation. I think that the difficulty in practice with power-sharing with the Executive is in legislative programming. One of the recurring difficulties in the programme is the sheer pace and volume of legislation. This presents difficulties for civil society, faced with meeting after meeting after meeting to finalise legislation, in actually sharing power by participating in sustained dialogue with the Executive and Parliament throughout the process.

SIR DAVID STEEL: If you look at the impact which the Parliament has had on public life in general, it is very noticeable there is a clear difference in attitude towards us from those who engaged with us, and those who have not. Around 5,000 individuals had been in front of our committees in the course of the four years. Indeed many of the organisations they represent, whether they be voluntary bodies or professional bodies or whatever, have commented very favourably on the Parliament, although it has not been universal. They now have direct contact with their elected representatives, there is a sharing of power, there is consultation, and there is access and an openness that was simply not possible previously when their Parliament sat 400 miles away. There is certainly a difference between those that engage with the Parliament and those who view it through the eyes of the newspapers.

MR JONES: Just on that point, you say you spend heavily on engaging with the public, are there examples of things that have worked better and been more effective?

MR TOSH: Yes. Some committees have done very good work in building up what we loosely call civic participation events. The Equal Opportunity Committee, for example, held such an event to conduct a very extensive discussion on race relations, with a range of organisations, particularly those which represent ethnic minorities. The Enterprise and Lifelong Learning Committee has held similar events with business people, where they discussed a range of initiatives. Many committees have also gone out into local areas in order to gather evidence about a specific piece of legislation or enquiry, and they have married their formal business with open meetings in distinct communities, and have held what have effectively been public meetings, where they have tried to gather in opinions. There has been a deliberate attempt to try and get as much business as is realistically possible away from Edinburgh and out into the communities across Scotland, not simply to meet with councils and official bodies, but actually to meet with the general public as well.

MR PRICE: The scrutiny of bills of how that… Sorry. I should say you have explored ideas in public about the scrutiny of bills and how that might be improved, what do you think are the strengths and weaknesses of your present system of scrutiny of legislation and what are your present views on how that should be improved?

SIR DAVID STEEL: I think the greatest strength of our system is the pre-legislative scrutiny of Bills by our committees, something that does not exist formally at Westminster, although I think hope is growing there. Certainly from my time in the Westminster Parliament, it was unusual. The fact that a Bill, before it is debated by Parliament, is scrutinised by a committee which can listen to all the people affected by that piece of legislation and share their views on it before it ever gets debated, is I think a great strength. Evidence given by people affected by the legislation does get quite a lot of media coverage in the way routine committee business tends not to. As I have said, that has probably been the greatest strength of our system in my view. A weakness is that I think at times we have been a bit rushed when it comes to considering legislation. We have already discussed the quantity of legislation and I hope in the next Parliament it will be less. The time spent therefore on each individual piece of legislation will be increasingly greater. I do get a little worried that we are rushing through the stage three of Bills - that is the Report stage at Westminster. There is often a very tight timetable here, which often means there must be short speeches by Members. There is also a risk, and I put it no higher than that, that you get things wrong. As things stand, there is nothing to rescue something that goes wrong. We have not had any disasters but the potential has always been there.

MR ROWLANDS: It’s a bit like the Lords, quite fast moving trends. Sorry. Sir Russell in the evidence he gave to the House of Lords speaking about legislative process said it’s a bit like the Lords in that it analyses legislation in quite fast moving chunks, is that what you were…

SIR DAVID STEEL: I mean that we have had one or two occasions recently when we have been very close to the end of the time limit for consideration. This is what we call at Westminster the guillotine motion, but there is no such thing here because the timetable has been agreed beforehand. But nonetheless, there have been occasions when we come up against the time allowed for discussion and I have said all along that is one thing we cannot afford to do in this Parliament. There is no revising procedure and we cannot afford to have amendments put to the vote that have not been discussed or considered fully. We have not actually been in that position but we have been very close to it on occasions and that is slightly worrying.

MR TOSH: One of the things in our procedures which we have not explored at all, because it’s never happened, is a provision to deal with the fact that we do not have the capacity to go to the House of Lords. It is possible for the member in charge, the relevant Minister in the case of an Executive Bill, before a bill has been passed, to refer parts of the bill back to the committee for further consideration, if the Minister is not happy that the Bill is entirely fit-for-purpose. That has never happened. I suspect it may very well never happen because I suspect ministers would see that as a sign of failure, but it is clear that, just as committees are working very hard to finalise bills, so are the Civil Service and draughtsmen. It’s such a fast moving process when Bills are going through their committee stages, and it is important that the participants in the process are all really confident that every aspect of every bill is absolutely precisely correct. We have procedures therefore to deal with the absence of a revising chamber, but we haven’t used them yet.

MR PRICE: If I can follow that up, we have heard what you have obviously just said with reference to there is no House of Lords, lack of a revising chamber, do you feel that the procedure could or should be improved by some other kind of revising body, advisory or otherwise being interposed in this procedure or is that even if desirable politically just not on?

SIR DAVID STEEL: I do not think the case for it has yet been made. As I said earlier, we have not had any disasters but the potential for something going wrong is still there. I hope that in the next Parliament there will be less legislation and therefore the danger will be averted by allowing a little more time between the stages of bills and in particular in the discussion at stage 3. However, when the Scotland Act comes to be reviewed which would be not in the lifetime of the next Parliament but the one after possibly around 2007, that is the moment at which a general assessment should be made on how well our procedures have gone. I can certainly see how a case could be made out not for having a Scottish equivalent to the House of Lords, but to have a reviewing procedure. We already have one reviewing procedure which is forgotten about and that is for a month after a Bill is passed it is examined by the law officers both in Scotland and at Westminster. They check two things - that it is within the legislative competence of the Parliament under the Scotland Act following amendments made to it, and that it is consistent with the European Convention of Human Rights. I have already put forward the idea that there could be a case for having a body of about the size of this Commission for example, sitting in our Committee rooms during the same month that a Bill is passed, looking at the legislation and having the power to send it back to the relevant Committee if they found something defective or needed further examination. But as I have said, I do not think the case for that has yet been made. I certainly think it is too early to come to a hard and fast view as to whether it would be possible to think of an appointed revising body being a Parliamentary equivalent of the law officers. It would not be the same as having a second chamber. There have been voices and arguments for a second chamber; I do not think there is much political weight behind that because of the bureaucracy. I do not think it is justified given that our system with its pre-legislative facility works very well.

MR PRICE: On the hypothesis that you put, that if in 2007 there was a feeling this was necessary, you have talked about using the subsequent month after it had undergone all its Parliamentary stages, what would be the scale in your view of such an examination by such a revising chamber, would it be limited to the same two points that the law officers are looking at which would be the whole of the legislation in which case wouldn’t that be too late a stage to persuade Parliament which has already voted to look again at what potentially could be significant aspects of the legislation?

SIR DAVID STEEL: I do not think it would be too late. In the four week period, it would be technically possible for a review body to say there is something about the legislation that ought to be looked at again and to refer it back to the appropriate Committee. The House of Lords can refer a bill back to the Commons. What I think we would not have is a second chamber which would, like the House of Lords, have its own debates.

THE CHAIRMAN: The revising process in the Lords is perhaps a bit more political than some people think it is, a set of wise legislators sitting there, parties involved, politicians involved.

SIR DAVID STEEL: That is why in my opinion I am not in favour of having a second chamber because the body should be apolitical.

THE CHAIRMAN: Can I come on to the sort of the legislation that you actually pass, what percentage of it is private?

MR TOSH: I think about 10% of our Bills have been non-executive Bills, although a higher proportion of the bills that are proposed are non-Executive. I think about a quarter of the bills proposed are non-Executive Bills, but these don’t necessarily proceed. Of those bills which start off and actually go through the formal process in the House to completion, I think that about 10% are from members and committees. We have not so far had any genuine private bills but we have two in process at the moment, and we expect more private bills in the future. Although the pace of Executive legislation may slow in the future, we also expect that more members are aware of the procedures and are confident in what they want to do, and will lodge their own bills in the next Parliament. I also think it is inevitable that there will be more Committee Bills, as David said earlier. We have not worked out yet exactly how we will ration Parliamentary resources, including plenary and committee time between the two – Bills which form part of the Executive’s programme and those which come forward from the various other sources of potential bills.

SIR DAVID STEEL: That is the biggest unresolved issue that we are left with in this Parliament.

MR JONES: And presumably it comes back to the difficulty you had at the beginning that if the business managers format is dominated by the Executive and they feel, if the private members wish to have more voice and better access to time then who will champion those private members initiative if the Presiding Officer hasn’t got a strong enough voice?

SIR DAVID STEEL: You have put your finger on an issue we are deeply imbedded in at the moment. There are those who are saying that the Bureau will have to sort this out and others who say it should not have the responsibility. There is an Executive majority in the Bureau. It has been suggested that perhaps there ought to be some other back bench committee being responsible, perhaps followed at the end of the day, by a debate in Parliament. We are considering this issue at the moment and it remains an unresolved matter.

MR ROWLANDS: Are there private days allocated, private members days for private members which is allocated as you do in the Commons?

SIR DAVID STEEL: No, the Bureau recommends the Parliamentary timetable to the Parliament and it allocates time for Bills as they come forward. As I have said, we do not have the same mechanisms that Westminster has. There are non-executive party days that are set down by agreement. But as things stand there is no legislative time set down for non-executive legislation, it all has to go through the same sausage machine.

MR TOSH: If you bring forward a sufficiently adequate bill proposal, it will go to a committee. The committee will consider it and take evidence before making its Stage 1 report to the Parliament, where the report will be debated. We have had three or four Bills which have reached Stage 1, and where Parliament has rejected the bill. There is no ballot, as at Westminster, and any member who takes a Bill through the system will find that the Bill doesn’t suffer from a lack of time for debate. The Bill will emerge on the agenda, and about six Bills have so far commanded that degree of support in the first session, have been allocated sufficient time, and have been, or will shortly be, passed.

MS DAVIES: Can you explain the ad hoc membership and how they actually function in practice?

SIR DAVID STEEL: The membership of the committees, as at Westminster, simply reflects the party balance. The convenership and the deputy convenership of committees are allocated by the business managers. As Murray has said, the usual channels do not exist but nonetheless the party business managers do meet and decide amongst themselves how they allocate the convenerships between the committees. That seems to have been an amicable process.

MS DAVIES: I’m speaking about the ad hoc committees?

MR TOSH: They are formed on the same basis for rotating convenerships of the permanent committees. Parliament would know, if new ad hoc committees had to be created, whose turn it would be to have the convenership. Ad hoc committees are smaller than ordinary committees, and perhaps would not be so broadly representative in membership, but there has never been a difficulty about membership. Ad hoc committees have been formed to deal with private bills, because they are not put before the mainstream committees.

SIR DAVID STEEL: We only had two or three of those in the whole four years.

MR TOSH: And I think that committee bills may also go to an ad hoc committee, rather than one of the mainstream committees.

MR GRICE: And also recently a consolidation bill, which has been a rare feature in the first four years.

SIR MICHAEL WHEELER BOOTH: On fisheries?

MR GRICE: On salmon.

THE CHAIRMAN: How do you deal with secondary legislation?

SIR DAVID STEEL: We have a Subordinate Legislation Committee which scrutinises all the statutory instruments. It has a serious function but how it copes with the volume, I do not know.

MR TOSH: It is an area where we haven’t really moved on. One of the major changes anticipated was that our committees would devote a lot of time to post-enactment legislative scrutiny, not simply scrutinising statutory instruments, but devoting committee time to determine whether legislation has achieved its objectives. Committees are only beginning to come to terms with such scrutiny. The model we use for secondary legislation is the Westminster one, where Ministers lay statutory instruments, which the Parliament can either pass or not. There is no facility to amend statutory instruments. A good recent example of the difficulty created by that was a dispute in the North of Scotland about the boundary for the proposed Cairngorm National Park, where the local communities were all up in arms about what was proposed, and the committee wanted to amend the zone area; but, when Parliament had to decide, it had a choice between passing the instrument as it stood, or rejecting the whole proposal, in order to pressure the Executive into returning with a revised proposal. In the event, Parliament passed it. As things stand, therefore, there is no facility to get into the political or policy dimensions of statutory instruments, and we are still are operating under the procedures laid down by Westminster in the Transitional Order. I think the reason for that is that the committees have simply been so limited in time that they have not yet explored the possibility of working up our own system of scrutinising secondary legislation. Replacing the Transitional Order with our own procedures is something which may be attended to in the next Session of Parliament.

THE CHAIRMAN: Do you have a negative and positive procedure decided, which is which?

MR TOSH: Ministers generally determine that in the Bills themselves.

MR GRICE: That is usually in the primary legislation and, as Murray said, there are complex rules which aren’t a million miles away from Westminster. That is the basic approach. The volume, I think, is something like 2,000 pieces of secondary legislation. So even with the procedures we have, which involve providing subject committees as well as the subordinate legislation committee scrutinising, I think they have found on occasions that they simply have not had sufficient time.

SIR MICHAEL WHEELER BOOTH: I think it is amazing what you have done so quickly, you are up and running in four years. I think it’s amazing, but that prompts me to refer to your speech in June two years ago in which you referred to the amount of European legislation which is being scrutinised here, it is also being scrutinised in the Commons and in the Lords and to a very limited extent in the national scope. These are technical jobs, they need lawyers, they need expertise, what strikes me is that somebody should consider with the advantages of IT and so on, a process of sharing out the work because you have this huge amount of legislation delegated legislation, European draft instruments as you say, 2000 in two years, in one body they will get bogged down, the thing is extremely selective and go for the jugular on a very few which is what the delegated powers committee in the House of Lords does about bills. They go for about nine a year or ten a year of the whole legislative programme and it would seem to me in each with the weight of motion you are doing all these reviews, I mean you are doing a lot of guessing about the way the Parliament works and God knows Westminster does not do enough but it does strike me one thing worth considering is sharing the load of these technical expert functions which are so important because Government and administration has got very technical and complex which is partly the reason for it, the House of Lords because there was some lawyers and boring old people who are willing to do the hard round and the Commons was unwilling to do and which the government did not anyway want to do.

SIR DAVID STEEL: There is one caveat - what we have to do is check the delegated legislation in Scots law, so we have a slightly additional task to the general one. The point you make raises a wider issue which I am very interested in, as is Paul Grice. And that is to what extent now that we have a pattern in the UK, and to what extent can we share the apparatus of devolution across the frontiers. We have not made a great deal of progress on that. At the beginning, we borrowed some people from the Northern Ireland Assembly but it seems to me that there is still scope for sharing the expertise which exists in the Commons, the Lords, Northern Ireland, Wales, Scotland, so that we build up a corpus of expertise, and not just in the area of Europe. That is the obvious example, but across the board I would say that I hope this will develop in the years to come.

SIR MICHAEL WHEELER BOOTH: It’s the kind of thing we were told about in the House of Lords the other day, somebody from the public bill office, that you are trying to build up a process in which they tip you off about an amendment to legislation which are the subject of Sewel resolution or motion where it might make an impact when as a Parliament need to look at them again, this is a purely practical way in which co-operation does make sense otherwise you have to read every word.

MR GRICE: There is a tremendous amount of co-operation across a range of services. Clerks from Westminster and Northern Ireland and Welsh Assemblies meet at least once a year. And there are links, for example between the European committees here and at Westminster. And there are strong links between the official reporters and the research and information services, where we have a very long standing link with the House of Commons library. I began discussions with the outgoing Clerk of the House of Commons, and will take up with the new Clerk the notion of seconding staff. Of course, if Westminster opened up its recruitment processes as we have done in Wales, Scotland and Northern Ireland that would naturally help the movement of staff around but that is something outside your remit.

SIR MICHAEL WHEELER BOOTH: Well, what about…

MR GRICE: We have at the moment some excellent colleagues on attachment mostly from the Northern Ireland Assembly, I would accept there’s a lot more we could do and of course, there are wider issues about common consensus in other areas. I entirely accept the point you make, but I would not want you to think we have not built links.

SIR MICHAEL WHEELER BOOTH: Can I make one supplementary point. You are described here as clerk chief executive, now that pops into my mind that some of your work is procedural and some of your work is running the administration and balancing the books or not on the new building and keeping the contractors in order, that is what it pops into my mind, I don’t know. I wonder what proportion of your time you spend on these two or three fields which is the most important if you have a little graph, Lord Wilberforce when he was a judge he put a little card in front of him saying you are paid to be bored, in your case what does your card say?

MR GRICE: I am paid to do what the Presiding Officer tells me. One gets told what to do by an awful lot of people and that is part and parcel of the job. Seriously, it’s difficult for one to answer. I would say 25% dealing with what you might call procedural and advisory matters and 75% running the organisation. I was interested to see that Bill McKay towards the end of his time started titling himself as Clerk of the House and Chief Executive. The Presiding Officer conducts over all political activity. I have to take responsibility for the running of the organisation. Ultimately, if Sir David wants to know what’s gone wrong or what advice to take our set-up allows us to bring things to a head in one official.

SIR MICHAEL WHEELER BOOTH: In the House of Lords we have a large pyramid of staff with one top person but the House of Commons is moving over to the other system.

MR GRICE: It is a much bigger organisation, I accept that.

SIR DAVID STEEL: There is no Black Rod or Sergeant at Arms - the buck stops here

MS SUGAR: One of the things under consideration is Parliamentary services for the assembly and the split of the staff, I just wondered if you would like to comment whether there is much movement in the Civil Service supporting the Executive here in Edinburgh, how do you manage peoples careers?

MR GRICE: Firstly, we are completely independent service as opposed to, for example, the Welsh Assembly. There is a separate Parliamentary service here derived from the Westminster model. There is separate accountability, to the Parliamentary authorities, in particular.

SIR MICHAEL WHEELER BOOTH: Can I ask, on performance pay in the two houses at Westminster, they are linked to judges and High Court for pay, there is no question of any body in Wales, it still comes under the Permanent Secretary.

MR GRICE: My pay is determined by the Parliamentary authorities.

SIR MICHAEL WHEELER BOOTH: Not by the Executive?

MR GRICE: Not at all.

MR ROWLANDS: I want to talk a little bit about, again thinking about when we might be recommending the committee bills, I have read the formal procedure, has any succeeded in this Parliament?

SIR DAVID STEEL: We have had two I think.

MR ROWLANDS: On those two bills that have succeeded give us a flavour of how they came and went through the system?

MR TOSH: I have noted here two committee bills, but Paul can maybe tell me if there were more. There was one to set up the Standards Commissioner, and that must have gone to an ad hoc committee. We are currently dealing with the Children’s Commissioner bill which we would have dealt with yesterday, so that would be awaiting the Royal assent, so yes, we have had two committee bills. There was also a Member’s bill which was taken over by a committee, a Bill on domestic violence, so there have been three. Because these are driven entirely by committees there weren’t many of them at the outset. There was quite a bit of criticism from the wider body of people in Scotland interested in these bills that there had been a disappointingly low number of them. However, I think it is purely a matter of committees trying to establish their identity, functions and roles, and establish their agendas in the early stages of the Parliament; and I think the fact we have now had some success indicates that, when committees plan a four year programme of their own work for the next Parliament, they will then think just as ministers are thinking, that they want to compete for some of the available time, and bring forward bill proposals.

MR ROWLANDS: Taking these three bills, they would have originally been drafted with the support of your staff or Parliamentary draughtsmen.

MR GRICE: Yes.

MR ROWLANDS: And then at some stage during the process would an Executive in a sense come in quite heavily to make sure they are knocked into shape or not?

SIR DAVID STEEL: We agreed early on that we needed to establish within our structure a non-executive bills unit, so we have people specifically dealing with committee bills and members’ bills. But as we discussed earlier, they are somewhat over stretched and somebody has to give them guidance as to what the priorities are. The fact that we have established that unit shows how important this whole process is.

MR ROWLANDS: They would have a staff process in terms of drafting amendments responding to amendments?

MR TOSH: It’s slightly different with Members’ bills, as some Members have chosen to bring bills forward using outside legal and other staff.

MR ROWLANDS; Generated by the committees themselves they would have been drafted by the unit at a process and the legislative executive would have taken a view about this bill and would have said well we accept it and would they seek to amend it, presumably taking these three bills, do they have a vote in anyway?

MR TOSH: The bill would be the subject of a report by the committee to which it had been referred, the Parliament would decide whether it was going to accept the bill, and the Executive’s role at that stage would be to bring forward such amendments as it wanted. Ministers would attend at the committee stage 2, and promote those amendments which the Executive felt it wished to promote. In the 3^rd Stage, Minister would bring forward any further amendments: at this stage the Parliament sits as a committee for the final round of amendment.

MR ROWLANDS: Would an executive whip their amendment?

MR TOSH: I don’t think they whip formally. They issue their back bench members on the committees with briefings to indicate what the Executive would wish to see happen, and I think that the normal party discipline inclines Members to follow the Ministers. However, I am aware of some quite spectacular examples where committees have not agreed to support the Executive, and have made fairly substantial changes, even when Bills contain major items of the Executive’s programme.

SIR DAVID STEEL: One interesting difference I have noticed between what happened at Westminster and what happens here, is that there is no party whip sitting in on the committees. You will know from experience at Westminster that every legislative committee has its whip. We do not have such a thing. There is more cross party voting in the process of legislation and it is accepted as normal.

MR ROWLANDS: It’s not known as giving a bloody nose to the executive, it is a committee but it does its own thing.

SIR DAVID STEEL: The committees here are, in a sense, more powerful than their equivalent committees at Westminster.

LORD RICHARD; Well, thank you very much indeed for coming and being extremely useful. What we are trying to get is that the practicalities of how you work and I think you have helped us a great deal, thank you and your colleagues very much for coming today.