| THE CHAIRMAN: Good morning, thank you very
much for coming.
MISS FERGUSON: Thanks for having us.
THE CHAIRMAN: Ministers are busy people so we are doubly
grateful you have made some time for us. I wonder if,
before we start, for the sake of the record could you
introduce yourself and your colleagues?
MISS FERGUSON: Certainly, my name is Patricia Ferguson
and I am Minister for Parliamentary Business, my colleagues
are Colin Miller and Ian Campbell.
THE CHAIRMAN: What exactly is your portfolio, what
does it cover?
MISS FERGUSON: It’s a rather strange job in some
ways. I suppose it can best be likened, if you were
to take the Westminster example, of a combination of
Leader of the House and Chief Whip. It’s my job
really to make sure the Executive’s business gets
through and gets on to the floor of the chamber, but
also to make sure the votes are there to deliver the
right outcome. So it is a very interesting job and allows
me to see across a breadth of areas I probably wouldn’t
see in any other job.
THE CHAIRMAN: How is the voting system organised, do
you have Assistant Whips and Deputy Whips?
MISS FERGUSON: I do, because we are in coalition I
have a Deputy Minister who is a Liberal Democrat and
he looks after, to a large extent, the Liberal Democrat
group. Within our own group, I have three Assistant
Whips informally in that role. They are not appointed
as part of the Executive, they just do that role within
the Labour group - it means we have a rota system where
members attend the chamber on a rota basis if they are
not actually required to be there for the actual debate
and each group of members, three groups of members altogether,
has a Whip who works with them and who knows their problems,
their difficulties and can liaise with them about any
problems they may have.
THE CHAIRMAN: The other hat you wear, which is the
Leader of the House, how do you work with the Business
Committee?
MISS FERGUSON: We have a Business Bureau which is chaired
by the Presiding Officer and consists of a representative
of each of the four main political parties. In order
to be able to have a seat on the Bureau you have to
be able to have a grouping of five members, so at the
moment there are no parties outwith the four big parties
who can actually do that. There is not a willingness
amongst those who are independent or non-aligned to
be able to do that at the moment. So we have a proportional
voting system and we don’t very often have votes
in the Bureau. It does happen, but not very often and
we usually manage to accommodate the business of all
the parties in a fairly consensual way. Opposition parties
know in advance that we have a certain allocation of
time and they know a good few months in advance when
their slots are likely to crop up, so it works reasonably
well - I would say, pretty well.
SIR MICHAEL WHEELER BOOTH: Just following up that question,
we were told earlier this morning that some planning
of business had been passed by the Labour Party and
not the Liberal Democrats, but another party, an ordinary
opposition party. That seems very odd because if you
are in a coalition with another party you would expect
them to go along or to work out some modus and then
come forward with that. But unless I misunderstood the
earlier evidence we were told that sometimes the Labour
Party has had to depend in the Bureau and thereafter
in the debate and vote on the floor on another opposition
party, how does this work?
MISS FERGUSON: I don’t think it has ever happened
in the Bureau, but there has been certainly in my time
in this job one occasion just recently where there was
a debate, a Scottish National Party inspired debate
on the current situation in Iraq where the Liberal Democrats
and Labour have different positions nationally and where
we agreed that the Executive would not take part in
the debate but the individual parties would and the
outcome of the vote meant that the Labour proposition,
or the Labour amendment was carried, but really with
assistance from the Conservatives because the Liberal
Democrats voted with one of the other opposition parties,
the Scottish Nationalists. So that’s the only occasion
I can think of where that’s happened recently.
SIR MICHAEL WHEELER BOOTH: And that was not on legislation
but on an expression of view on debate.
MISS FERGUSON: And on a reserved matter, so it wasn’t
something that was part of our partnership agreement
or part of our Programme for Government.
THE CHAIRMAN: Who spoke for the Labour Party?
MISS FERGUSON: Back Benchers.
THE CHAIRMAN: I see, and the same with the other parties?
MISS FERGUSON: The opposition parties had front bench
spokespersons speaking but the two coalition parties,
the two Executive parties had back Benchers speaking.
SIR MICHAEL WHEELER BOOTH: And at the Bureau meeting
presumably you have a bit of paper in front of the Bureau
with the proposed order of business for the next week
or month or how long does it go?
MISS FERGUSON: The Bureau considers a number of issues,
it doesn’t just concern itself with the business
programme, it also looks at issues like Committee travel
and the designation of a lead Committee on a Bill, that
kind of thing, but as far as the business is concerned
we normally give the other parties sight of the business
programme. It’s usually at least two weeks in advance,
sometimes three weeks in advance, the further in advance
the less precise it will be, so normally the two weeks
are pretty fixed at that point. We normally see that
before the Bureau meeting and we have a formal discussion
at the Bureau as to whether or not that’s what
the Bureau wants to put forward as its business programme.
SIR MICHAEL WHEELER BOOTH: So it has really been worked
out in advance and negotiations have taken place and
whether you need two days sitting at stage three on
whatever you call the hunting bill or whatever, I don’t
remember, wild mammals or something.
MISS FERGUSON: Yes, by and large we would work with
the Clerks of the Parliament to look at the number of
amendments that had come in and allocate time accordingly
for a piece of legislation. We would discuss that with
the other business managers and that’s something
that is, oh, I would say almost on every occasion dealt
with in a very consensual way. Sometimes we might have
to come back, as we have done recently, and say to the
Bureau that the deadline for amendments has now closed
and there are actually far fewer amendments than we
expect, therefore we can reduce the amount of time required
to discuss this particular piece of legislation. That
is nine and a half times out of ten agreed without any
difficulty at all.
SIR MICHAEL WHEELER BOOTH: Do you have in the background
a guillotine?
MISS FERGUSON: In so far as....?
SIR MICHAEL WHEELER BOOTH: Well, the Executive could
- through you - put down a motion to say we have had
enough of the hunting bill at stage three, the vote
is going to be taken, like a guillotine.
MISS FERGUSON: Yes, and this is agreed beforehand,
but there are points in the bill which are timed so
you have to get to a particular section by, say 2.20
after the commencement of the debate and if you are
not at that point by the time you reach that time then
the Presiding Officer would automatically go to the
vote on that section and it’s timetabled in that
way throughout.
SIR MICHAEL WHEELER BOOTH: But they have normally been
negotiated beforehand and agreed in the Bureau?
MISS FERGUSON: And everyone knows what those timings
are.
THE CHAIRMAN: Are they stuck to, that’s the important
thing?
MISS FERGUSON: Yes.
THE CHAIRMAN: Because I mean in a sense it removes
from the opposition what is reputed to be one of their
great weapons, which is time. I mean it seems what you
don’t get in Scottish Parliament is lengthy Committee
stages with people making vast quantities of speeches,
the only effect of which and the design of which is
to hold up Government business, so you don’t get
that?
MISS FERGUSON: Not very often, no. I think it is fair
to say that the vast majority of the legislation we
are putting through there is probably a consensus in
favour within the Parliament. There might be within
parties or across parties even difficulties about a
particular amendment, but there have been very few occasions
that I can recall where the entire Bill was something
that opposition parties didn’t want to happen and
very often there is a lot of co-operation within the
Committee before it even gets to the floor of the chamber
to actually make sure that all that is sorted out, if
you like. So there is a real feeling of consensus about
a lot of what we are trying to do.
MR ROWLANDS: What proportion of the time is spent on
legislation - can you give us an idea in an average
session, it is greater one assumes than it was first
thought.
MISS FERGUSON: I am not sure what people imagined would
actually happen, but certainly the coalition party obviously
had a programme for Government that meant there would
be a certain amount of legislation coming through. I
think it’s fair to say that as time goes on the
pressure to take through legislation becomes greater.
There is also the added pressure that individual members
can bring forward legislation themselves and also Committees
can initiate legislation and as the Committees are beginning
to become expert in the fields that they are considering,
they are more and more recognising the need for a particular
piece of legislation and coming forward with proposals
for that. We regard that as one of the strengths of
what is happening in Scotland, but obviously it is a
burden on the overall time that we have available. By
the end of the Parliament we hope that there will have
been in total I think 62 Bills that will have gone through,
of which the vast majority are Executive Bills, but
there are a considerable number of members Bills and
Committee Bills going through. I think that will increase
with time and in the new session of the Parliament I
am sure that there will be increased pressure, particularly
from the Committees.
MR ROWLANDS: Is your experience going to improve with
a great holy argument that you have to have on camera
in Parliament rather than revised in second chamber
– which is totally redundant and unnecessary?
MISS FERGUSON: I would certainly argue that it was.
I think one of the real strengths of the Parliament
has been the Committee system. The Committee scrutinise
legislation, interrogate Ministers and officials, conduct
their own inquiries into areas of concern, have their
own consultations and by the time you get to stage three
of a Bill really there has been an awful lot of work
done, not just by the Executive, but also by the Parliament
and its Committees in actually making sure the legislation
which is proposed is robust and fit for purpose. I think
that’s why it gets to be quite consensual by the
end because all the arguments have taken place in Committee
and there is a recognition of what the Bill is trying
to do, people very much understand it and actually very
often become quite, not protective of it, but identify
with it and have particular areas that they are very,
very keen to see pursued.
MR ROWLANDS: How significant a change would occur to
an Executive Bill that is actually started out, I mean
in an average Bill will it have been changed very much
as a consequence of this process.
MISS FERGUSON: It can be and often it is because the
Executive will recognise there is a good argument coming
forward and will propose changes itself and so too with
evidence that comes in from interested organisations
or individuals. Very often something that perhaps hadn’t
been thought of at an earlier stage is identified as
being relevant to a particular Bill and will be brought
in. Again sometimes it is individual members of the
Committee that is scrutinising the Bill or may even
be one of the secondary Committees scrutinising the
Bill. So there is considerable change I would say over
some of the Bills in the course of their lifetime, whilst
with other bills there is very little movement. It largely
depends on the nature, the size and the complexity of
the Bill to begin with.
MR ROWLANDS: Do you play a part, as a Business Minister,
with the Sewel motions and all that area?
MISS FERGUSON: Yes.
MR ROWLANDS: I wonder if we could lift the lid a little
bit on that?
MISS FERGUSON: It’s my favourite subject.
MR ROWLANDS: Alright. We have read a lot of the background
documents. First of all are we right in believing that
the vast majority of Sewel Bills are UK proposed and
Westminster proposed as opposed to proposed by the Scottish
Executive?
MISS FERGUSON: They are all pieces of Westminster legislation.
MR ROWLANDS: Where does the initiative to have a Sewel
motion come from?
MISS FERGUSON: It can come from either side and does
come from either side.
MR ROWLANDS: So you can propose?
MISS FERGUSON: On occasions we do. Often it is very
obvious that it should be done that way. It might be
something to do with terrorism for example where there
needs to be a UK approach and it just makes sense to
do it that way. On other occasions it may well be that
it complements something else that we are doing, or
it’s an area where we would wish to take that legislation
forward but have not actually identified a slot in a
bill to do that in. On other occasions Westminster might
flag up through us that again it is something that should
be done across the UK and we would seek Parliament’s
permission to do it in that way.
MR ROWLANDS: I got the impression from some of the
papers I read that it was overwhelmingly at the suggestion
of the United Kingdom, the Westminster end that the
Sewel motions were brought forward.
MISS FERGUSON: I couldn’t give you a breakdown
as to how many were agreed or initiated in which place,
but certainly I wouldn’t say it was a vast majority,
I would say there is much more, many of them from my
experience anyway are almost mutually agreed at the
same time you see a piece of legislation going through
Westminster, there is obviously something that would
want to be going through Scotland as well and we have
a conversation about it. I think it’s much more
a sort of discussion rather than anything else.
THE CHAIRMAN: Who do you consult at the Westminster
end?
MISS FERGUSON: Usually the Minister with direct responsibility
in Scotland would discuss it with their colleague, their
counterpart in Westminster.
THE CHAIRMAN: But not through the Secretary of State?
MISS FERGUSON: The Secretary of State would often be
involved in it, yes, but there is a lot of discussion
between Ministers north and south of the border.
MISS McALLISTER: How do you ensure that the quite robust
structure for scrutiny that you mentioned a moment ago
would apply to the Sewel motions, particularly in Committees?
MISS FERGUSON: That’s something we are having
some debate on at the moment. It’s fair to say
very often the Sewel motion actually only applies to
a very small proportion of a much larger Westminster
Bill, it may be a clause, it may be a line, but there
is a variation there as to how much of the actual Bill
would be taken into account, but when the Scottish Executive
decides that this is what it would like to do, we prepare
for the Parliament a memorandum that explains what is
contained within that Bill and then we would have a
debate, usually on the floor of the chamber, but it
is possible to do that in Committee rather than on the
floor of the chamber. The debates tend not to be very
long, basically because we are not talking about a big
area of policy, it is usually something very specific,
but the opportunity is there to have that debate on
the floor of the chamber.
Similarly, there have been occasions when we have decided
that the way a bill has been developed at Westminster
it has perhaps had something added in. I am thinking
particularly, there was an Adoption Bill went through
Westminster where we actually did three separate Sewel
motions on three separate aspects of it, because it
became clear as it went through its various stages at
Westminster that various changes were being made that
we would want to accommodate. So on each of these occasions
we went back to Parliament and sought fresh approval.
MISS McALLISTER: Is that an informal agreement in terms
of the amendments or has it been formalised in any way
that it would be referred back to the Scottish Parliament?
MISS FERGUSON: It’s more that the Scottish Executive
identified with colleagues in the south that changes
had been made and we wanted to be associated with them,
so we would go back through the Sewel process again
on those individual areas.
THE CHAIRMAN: What is the word in the actual motion,
the Sewel motion, "We in the Scottish Parliament
request Westminster to do X, Y and Z"?
MISS FERGUSON: I can provide you with a couple of copies
if that will be helpful, after this session. It’s
usually a fairly wide motion I think it’s fair
to say, but it usually refers specifically to what we
are trying to do with the actual Sewel itself, but I
can provide copies of that afterwards.
MR JONES: If there is a Sewel motion about to be implemented,
will the Scottish Members of Parliament in Westminster
be inclined to take an active interest in the issue,
believing that there might be less scrutiny in the Scottish
Parliament because of the Sewel motion.
MISS FERGUSON: I suspect that comes down to individual
party management rather than anything else. Certainly
from a party point of view I would, if I was talking
to any of my colleagues at Westminster, encourage them
not to just look at the aspects being covered by Sewel,
but perhaps look at the whole bill.
MR JONES: There has been no pattern of development
of the MPs finding a niche for themselves to take a
more active interest in those issues?
MISS FERGUSON: Not formally certainly, no, I don’t
think so.
MR PRICE: I would like to come back to your own legislative
programme. If one thinks of Westminster, the traditional
pattern has been enormous pressure on legislative time
and therefore lots of Bills that are desirable get squeezed
out. Is the situation that you are never faced with
lack of legislative time, that you can always accommodate
what the Executive wants and in fact, does it go even
further to the point that as a cabinet member you spend
time considering how to squeeze out what you may consider
as undesirable or even daft ideas because there would
be time for them but you think that they are not meritorious?
MISS FERGUSON: I don’t think that situation has
arisen so far. We will certainly, by the time we get
to dissolution in March, have got through the programme
that we wanted to get through. I am trying to hedge
that with a lot of caveats because you never know what
is going to happen in Parliament from week to week,
but I think the problem is more one of resources, resources
to work up policy and to work up ideas that got to the
stage of being a proposal for a Bill or a draft Bill.
And similarly on the Parliamentary side there is pressure
on the resources they have to assist members with what
are commonly referred to as non-executive Bills. There
is a Non-Executive Bills Unit and one of the interesting
discussions that’s going on just now is about how,
as a Parliament we manage that element of business.
So I think it is actually more to do with the resources
to get legislation in than it would be about what is
being proposed actually getting to the end of the session.
So far, touch wood, it has not been a problem in the
sense of not having enough time to get issues through,
but I suppose there are probably ideas that people had
perhaps back at the beginning that haven’t got
that far and that will be for other reasons even than
resources, but we are certainly managing so far to get
the programme through.
MR THOMAS: In those resources would you include the
size of Parliament if the Parliament were say 80 members,
would you feel that there was pressure on the legislature
to probe that?
MISS FERGUSON: There might have been, but I think it
would be more - I do think it’s more about the
resources to actually draft in the first place. There
is it would seem a shortage of qualified people who
can draft legislation. I know the Parliament has had
to go out and recruit lawyers and train them to be able
to do that, but I think if the Parliament were smaller
the difficulty you would have is the servicing of the
Committees. In reality a Committee can only really look
at one piece of legislation at a time, so if you had
that kind of drain on your resources in terms of the
Parliamentary Committees I think you would have more
problems because your Committees would either have to
be fewer or smaller. There is quite a burden on the
members of Committees, particularly some Committees,
we seem to have had a lot of justice legislation for
example and we actually now have two Justice Committees
to respond to that problem. So I think if the number
of members were reduced it certainly would have an impact
on their ability to get through the amount of business
that we have got through.
MR THOMAS: You stress the fact that the Committees
are actually the powerhouse both in terms of legislation
and the other functions that they are doing...
MISS FERGUSON: Yes.
MR THOMAS: Has the balance in terms of the amount of
legislation you have got distorted the kind of work
that the Committees might be doing, policy formation,
reviews or whatever?
MISS FERGUSON: I think some Committee Convenors and
members would argue that it has. I think the burden
has been greater on some Committees than it has been
on others. As I mentioned the Justice Committee, after
about 18 months, two years, we decided that we would
have two Justice Committees. We also at that point reduced
the size of our Committees so there was less of a burden
in that sense as well. So that’s probably something
that the Committees would say is the case and certainly
something that I think in the second session of the
Parliament after the election in May, there will be
more pressure from the Committees to have some more
space in order that they can conduct their inquiries
and can consider whether there might be more legislation
that they themselves may want to initiate. It is something
we are aware of and something we are trying to manage
as well in terms of what programme our future administration
might consider.
SIR MICHAEL WHEELER BOOTH: Just following up that question,
the decision to have two Justice Committees, was that
made by a mixed proposal from you and from the convenors
of the other Committees? This kind of change, the idea
that the Home Affairs Select Committee and the House
of Commons would be split into two would be pretty well
inconceivable even if quite a number of Members of Parliament
wanted it because the usual channels would just block
it. How did it happen?
MISS FERGUSON: I was not involved in the decisions
or discussions around that at the time. I was Deputy
Presiding Officer of the Parliament at the time so I
didn’t get involved in all of that, but I think
it was decided by the Bureau that it was an agreement
with the business managers after a lot of discussion
within their parties and it was therefore put to Parliament
that this should happen. Ian may want to add to that.
MR CAMPBELL: It was part of a wider review of how the
Committee system was operated. When we started most
of the Committees averaged 11 members and there was
great pressure on the individuals, some of whom were
having to sit on two, three, even four Committees at
the time. That was causing difficulty. The Justice Committee
was split into two primarily because of the volume of
legislation that was going to come before it. The difference
for instance between the Scottish Parliament and Westminster
in that respect, is that the Committees have a hybrid
role, not just in the select Committee area, and that
has caused the Committees to work together quite hard
to make sure that they are not competing with each other
over inquiries, but as regards the allocation of legislation,
that’s a matter for the Bureau and business managers
between them, they will discuss that and involve the
convenors in any discussion as to which Committee will
lead on a particular bill.
SIR MICHAEL WHEELER BOOTH: The related question we
have been told is that there is a big review of procedure,
I have forgotten what it is called, that has been going
on for quite a long time and due to produce its baby
in the next month, before the end of this Parliament.
MISS FERGUSON: Yes.
SIR MICHAEL WHEELER BOOTH: Who would be on that and
who would be the Chairman of it, how would it be run?
MISS FERGUSON: I think that’s the inquiry with
the Consultative Steering Group principles. It’s
an inquiry that the Procedures Committee began probably
more than two years ago. I was a member at the time
when it began. That has been taken forward by the Procedures
Committee which is chaired by Murray Tosh MSP and they
have been looking into the principles set up by the
Consultative Steering Group. This was the group of people
appointed by the Secretary of State in the mid 1990s
to work out ideas about how the Parliament should function,
and it brought forward its conclusions as a report at
the time. So the Procedures Committee is trying to see
whether or not the ideals and aspirations that the Parliament
adopted at the very beginning of its life have been
adhered to. It has been a very large, very complex inquiry.
MR JONES: How do you advise civil society organisations,
Local Authorities, etc, in the consultation process,
the legislative process and the policy process, how
do they become involved, do they give evidence to the
Committee direct or do they send information in say
to the Executive?
MISS FERGUSON: There are a number of ways in which
it works, the Executive has, for example, a very good
relationship with COSLA which is the Local Authorities
Association in Scotland. We also have a memorandum of
understanding with the Scottish Trade Union Congress
where we consult and advise them of any change in policy
or anything that is coming up that we think is appropriate
for them to be involved in the discussion about. So
there are relationships like that which influence what
happens and which help to take forward ideas. But more
formally the Executive itself undertakes consultations,
I think we have had over 500, or approximately something
like 518 since we began and we engage with organisations,
pressure groups, individuals even who might be interested
in the particular subject that’s out for consultation.
Committees will often undertake their own consultation
too and so there is a kind of two way thing happening
here. In a slightly less specific way, in connection
with policy, and in connection with more about the way
the Parliament works, there is an organisation called
Civic Scotland which looks at how the Parliament is
operating and provides, I think an annual report. There
is also a Scottish Youth Parliament that has members
drawn from every constituency in Scotland and looks
at matters of interest and concern to young people,
so there is quite a range of ways.
MR JONES: And the Children's Parliament as well?
MISS FERGUSON: A Youth Parliament, it’s more young
people than children that are involved in it.
MR JONES: I thought I saw reference in text to children
and youth.
MISS FERGUSON: No, I think it is just youth.
MR VALERIO: Can I ask the question about tax varying
powers? We all know you have them and have decided at
present not to use them. What are the circumstances
that would cause the Parliament to use them?
MISS FERGUSON: Well, at the moment the parties who
make up the coalition have agreed not to use them. Nothing
is likely to change that would encourage us to use those
Powers and I think the emphasis was more on working
within the framework which we have and using the money
that we have better, than trying to actually vary the
tax raising powers. I can’t off the top of my head
think of any circumstances where we might do that.
MR VALERIO: If you hadn’t got those it wouldn’t
have presented the Scottish Parliament with any problem
then?
MISS FERGUSON: Certainly not within the framework we
have been working to so far, because as I say we have
been trying to spend the money we have well and spend
it in accordance with Scottish priorities and make it
work for Scotland, so certainly in this Parliament it
wouldn’t have made any difference.
MR VALERIO: It’s not something you have in reserve
unless there should be any future revision of the Barnett
formula or any financial implications that could have
a beneficial or detrimental affect on the economy?
MISS FERGUSON: Obviously if there were to be any changes
like that I think we would know they were coming quite
some way in advance and try to see how they could be
accommodated, but certainly at the moment I don’t
think there are any plans to change the way in which
we work.
MISS McALLISTER: Regardless of the use, would you have
been comfortable having a Parliament with legislative
powers but not tax raising powers?
MISS FERGUSON: Personally I think it is better to have
that possibility, because I think it says a lot about
the Parliament and its status and obviously it gives
it more options along the way, so personally I think
it would be better to have than not.
SIR MICHAEL WHEELER BOOTH: But how far are the costs
of policies seriously considered before they are discussed
and indeed adopted by the Parliament and indeed by the
Executive. Earlier this morning we were hearing evidence
which rather suggested that in certain major areas of
expenditure the precise costs were not considered before
the policy was adopted. Take care for the elderly as
one example, and indeed another case with a bigger field
of expenditure it was suggested to us that the issue
of where the money was going to come from wasn’t
clear I think either within the Parliament or indeed
within the Executive. Isn’t this rather a weakness?
I mean I know that you are in a very happy position
under Barnett at the moment, but it may not continue
forever.
MISS FERGUSON: I don’t think that’s actually
the case. Every Bill that the Executive brings forward
has to be accompanied by a Financial Memorandum that
very clearly states what the financial implications
of a particular piece of legislation would be. Even
Member’s Bills for example have to be either accompanied
by a financial memorandum or the Presiding Officer has
to say that it’s not necessary. Every piece of
legislation that we put through does have a sort of
price tag attached to it, so I don’t think that
what you have been told is necessarily accurate.
SIR MICHAEL WHEELER BOOTH: One because it may not have
been done by legislation, I rather think it wasn’t,
it was the payment of teachers really and the extra
payments for teachers and the figure put to it, the
staggering figure was 1.2 billion I think and what was
suggested I think I am right in saying was that where
this was going to come from was not clear at the time.
I mean I may have misunderstood, or our witness may
have got things slightly wrong.
MISS FERGUSON: I don’t claim to be an expert on
that particular settlement, but I do recall that the
pay deal that was given to teachers was dependent on
a package of modernisation that accompanied it, and
the modernisation was in large part paying for the remuneration
that was being increased. So I think that was a pretty
clear cut example of the calculations having been made
and there being a justification of being able to do
what we were proposing to do, so I don’t necessarily
think that that was the case with that one.
MS SUGAR: Can we just press you on free personal care
because our witness did clearly say that there was an
additional bill of about 40 million because of the attendance
allowance issues. We got the impression that although
the issue was known about it was not resolved at the
time that the legislation was passed.
MISS FERGUSON: I would need to check this one for you
because it is not an area I was particularly involved
in and I certainly wasn’t in the job I am in now
then, but my understanding was that the costs were identified
beforehand. It may well be that that figure, if you
like, had been bracketed and it was a cost that was
perhaps expected to come, but I can certainly check
that out and let you have some information on that.
MS SUGAR: Well, any information on the financial memorandums
of Government would be helpful because if we were to
recommend primary legislation we need to make sure that
the Assembly has got a robust system.
MISS FERGUSON: I think my colleague the Finance Minister,
who can’t be here today, has actually a package
of information that he is planning to send to you, so
I will make sure that’s included in it.
MR ROWLANDS: One of the areas of our responsibility
is to look at the question of the settlement and the
nature of the functions now. The Welsh settlement is
seen as extremely complicated compared to the Scottish
settlement, but Schedule 5 of the Scotland Act isn’t
exactly simple, there are all these reserved powers
and exceptions. Have there been, since the establishment
of the Parliament, areas where, as a Parliament and
as a Government you wanted to do things and have been
caught by reserved areas, like in energy or transport,
the ragged edges which we were identifying in the Welsh
Whitehall settlement, have you had any examples of that.
Are you seeking the transfer of any functions....?
MISS FERGUSON: No, I don’t think we would be.
There is a recognition that the Parliament is relatively
young and we really need to get to grips with the powers
that we have got. I think we have done very well in
that to be honest with you in four years, which is not
a long time, as you will appreciate, for a Parliament
to get up and running and I think we have gone a long
way to establishing what we can and can’t do. There
are mechanisms in place to resolve these issues, formal
mechanisms which involve the law officers in either
jurisdiction discussing who has the power to do that.
Those have never had to be used and I think that’s
probably a measure of the fact that we are quite clear
about what we can and can’t do and we work within
that framework.
MR ROWLANDS: So in the area of transport or energy
there have not been areas or functions where you have
felt, where the Executive or the Parliament has felt
the need that it should have for the power that at the
moment is locked up in Schedule 5?
MISS FERGUSON: I don’t honestly think there has
been, no.
MR MILLER: Can I make one point which is that specifically
in relation to transport, there has been quite a significant
transfer of power in that area since devolution by means
of a Section 30 Order.
MR ROWLANDS: That’s the transfer of functions?
MR MILLER: The effect of a Section 30 Order is actually
to amend Schedule 5 itself and therefore the boundaries
between reserved and devolved matters - there is a separate
mechanism, a Section 63 Order, which transfers functions
as between UK Ministers and Scottish Ministers, but
the effect of one of our Section 30 Orders was actually
to transfer competence in relation to certain transport
matters to Scotland and that was known as the McLeish
Settlement. It was something which had been discussed
at the time of the Scotland Bill.
MR ROWLANDS: Which particular transport powers were
transferred, what was the nature of them?
MISS FERGUSON: To do with the provision of a ferry
service.
MR MILLER: Yes, it was in relation to certain services
that cross the border or went outwith our jurisdiction
altogether. The Scotland Act as passed, it I think only
gave devolved competence where the service was contained
entirely within Scotland and the effect of the Section
30 Order was to extend that a bit.
THE CHAIRMAN: You don’t follow Westminster very
much, do you, presumably you have got your powers and
you are beavering away and you don’t have to go
to Westminster and say - please can we do this?
MISS FERGUSON: No, I suppose we don’t. We do talk
to them a lot, we have informal discussions, we have
more formal mechanisms as I say that are there to prevent
any problems arising. Obviously the fact that we have
Scottish MPs at Westminster is still is a good thing
from our point of view and similarly having the Secretary
of State in the Cabinet helps a lot in that relationship
as well, but I think we actually have a very good relationship
and I think we actually work very well in a sort of
partnership way over a huge number of areas, but I don’t
think, I hope we have not caused too many problems.
MR PRICE: I don’t think you have. I think as far
as I know, Whitehall tells us it is much more difficult
with the Welsh than the Scots because of the nature
of the settlement. You have got everything except that
which is reserved and Wales has got that which is devolved.
So there is more pressure if you like on the settlement
in the Welsh case than the Scottish case.
MISS FERGUSON: I think that would be right because
we work within what we have and Westminster does not
interfere in that. You know, there is a sort of sensible
arrangement that allows both jurisdictions to do what
they do.
MR PRICE: At a practical level what are the main areas
where you look to Westminster in the course of the Government
of Scotland?
MISS FERGUSON: I suppose in all the issues that are
reserved to them, things like international relationships.
MR PRICE: I am thinking more of the overlap issues
rather than things like international issues. I mean,
for example, is the Home Office the main focus where
you get these sort of overlaps - or where else?
MISS FERGUSON: The Home Office probably I would say
is the biggest one. A lot of justice issues are obviously
cross-border where you would want to have cross-border
co-operation, cross-border activity, so I think the
Home Office probably is the biggest one that we would
have. I suppose DTI as well because of the nature of
it, a lot of the economic levers are in Scotland and
a lot are in Westminster, so there is a kind of balance
there as well between those two, so I suppose those
two are probably the biggest.
MR ROWLANDS: May I follow that, things like transport,
Railtrack and the whole issue of the Strategic Rail
Authority, how do your respective functions coincide
or otherwise? Perhaps you are the wrong witness to ask?
MISS FERGUSON: I probably am to be honest, it’s
not an area I know an awful lot about, it probably would
be better directed to one of my colleagues, but I can
get you some information on that if that would be helpful
to you.
SIR MICHAEL WHEELER BOOTH: Can I ask you how you put
your legislative programme together, how you give priorities
to certain Bills? Is there the equivalent of a legislation
Committee at Westminster and finally if there is something
that won’t go into the programme do you have talks
with the usual channels and Chief Whip and Leader in
the Commons to see whether the UK Government is going
to do something, where you can slot something in and
have a Sewel motion?
MISS FERGUSON: We have a Cabinet Sub-Committee on Legislation
and proposals for legislation go to it and it decides
what the priorities are and which Bill slots in where.
SIR MICHAEL WHEELER BOOTH: Presumably you give that
a lead or somebody has got to give it a lead?
MISS FERGUSON: Well, the Sub-Committee is formed by
members of the two coalition parties and it’s very
much influenced by the Programme for Government which
was agreed back in 1999 when the two parties came together
in coalition, so a lot of it is already identified as
being issues that we as a coalition have prioritised.
It is just a question of bringing forward the correct
legislation to fit that particular area, so it’s
largely done in that way.
THE CHAIRMAN: Why wouldn’t Sewel help you?
MISS FERGUSON: Because we would be in the situation
if we have identified that we want to legislate on something
then we will do that. What normally happens with a Sewel
is that something is being done at Westminster and there
is a devolved aspect to it and we see that as something
that we might want to do. Now we would then say to Westminster,
please do this part of it on our behalf, so it wouldn't
be something that we would do that way round.
THE CHAIRMAN: You wouldn’t start the process?
MISS FERGUSON: Well, we sometimes do by talking to
Westminster, but the Cabinet Sub-Committee would decide
we wanted a Sewel motion on that but it wouldn't be
one of the things that we would prioritise in that sense
within our own programme. I am not sure I am making
that very clear.
THE CHAIRMAN: Well, I think I see, but I am sure drawing
up the programme you must have had at the back of your
mind the fact that there is a Bill going to go to Westminster,
wherever the actual formality of the Sewel motion comes
from?
MISS FERGUSON: We would be aware there would be a Bill
going through Westminster. We would be thinking ahead
that there might be areas of that that would be devolved
to us and we would be keeping an eye on that to see
where that formulated itself and what thoughts were
coming through there and if there was something we thought
was applicable we would look at it to see if we needed
or wanted to put through a Sewel motion, but that would
be something that would be going on in parallel I suppose
to what we would be doing with our own legislative programme.
THE CHAIRMAN: Is your legislative rhythm, if I can
use that phrase, the same as in Westminster, the time-tabling,
the Queen’s speech at Westminster, do you have
your legislative programme in tune with the Queen’s
speech and Westminster legislation or is it separate?
MISS FERGUSON: It’s separate. To begin with there
was a Programme for Government which largely identified
the priorities for the coalition. This was then supplemented
by speeches, from the First Minister and by the taking
forward maybe of other issues, extra things coming in
that had been brought through the formal policy process
and the Programme would be supplemented by those ideas
so it doesn’t dovetail in any way.
THE CHAIRMAN: There is no sort of one speech that sets
out the programme?
MISS FERGUSON: Speeches done by the First Ministers
in the last couple of years have largely done that.
MR ROWLANDS: You are not obsessional?
MISS FERGUSON: No and we do not lose legislation at
the end of a Parliamentary year. Legislation doesn’t
fail when we go into recess in the summer for example,
we can still carry on with it, it can live a longer
period if necessary than it might do in other places.
SIR MICHAEL WHEELER BOOTH: The speeches by the First
Minister giving the sort of general programme, as you
say there have been two, when were they given, on what
occasion?
MISS FERGUSON: The last one was in May of last year.
We have a very strange arrangement at the moment because
we don’t have our own Parliamentary building and
we are borrowing premises from the Church of Scotland.
Every year they meet in session and we are moved out
to allow them to have their meetings. Last year we went
to Aberdeen and while we were there the First Minister
set out his thoughts and ideas for the coming period
and he had only been in post at that point for about
six months, so it was his first opportunity to do that.
The previous occasion would be about a year and a bit
before that.
MR CAMPBELL: I think we did one in September. I think
part of the reason for doing it in May is we had the
election, the programme doesn’t only cover legislation,
it covers what the Executive's priorities are because
many of them do not require bills to be brought forward,
but it varies - the statements were made in September,
June and in May.
SIR MICHAEL WHEELER BOOTH: Can I just follow up, you
referred to going to sit in Aberdeen and it made me
think of the cost of moving and that made me think of
what was said at the very beginning about the cost and
much higher out turn I believe. Is there much concern
either in the Parliament or by the public, on the discrepancy
between the issues of cost and the out turn?
MISS FERGUSON: A lot of concern.
MR VALERIO: Can I change the subject, but with your
hat on as an MSP other than Minister, the relationship
between list members and constituency members. In some
areas there appears to be poor relationships - you do
have procedures how you deal with constituency complaints
and also if you can, you did touch earlier on the issue
of the number of MSPs with the proposed reduction some
time or another in MPs, the complications that might
arise with this system of linking constituencies to
numbers, what are your views on that?
MISS FERGUSON: On the numbers issue we have agreed
with the Secretary of State that our numbers will not
reduce when the boundary changes go through at Westminster.
There will be a review probably following the 2007 election
- once Parliament has had a chance to bed down and operate
for a couple of years - to see whether or not there
should be a change in the numbers at that point, so
we will continue as we are for some time yet, but as
far as relationships go, I think it is very varied and
a lot depends on personalities. I think it is quite
difficult because the Parliament agreed at the very
beginning that there were not two tiers of MSP, there
is only one type of MSP and every MSP has the same duties
and roles and responsibilities, they just happen to
represent a different or slightly different area. It
does become problematic sometimes. There are occasions
when you might be doing some case work for a constituent
that might have been ongoing for a while and it might
be a particularly difficult case, you might have spent
quite a lot of time on it and you will then out of the
blue get a letter from one of your list colleagues saying
- Mrs so and so has asked me to take up her case - and
you will find you are left in the position of - do I
continue - do I stop and why has this happened you know,
does this person understand the work I have put in?
So there can be difficulties there.
I think there are also difficulties because the MSPs
tend to be from different parties. The majority of the
Labour MSPs for example are elected at first past the
post, all but 3 out of 55, so they have a constituency
MP who think they know their boundaries, whereas list
members tend to be from what’s seen as opposition
parties, so the relationship is exacerbated I suppose
by party politics as well. So I think it has settled
down considerably from when the Parliament was first
established, but I do think it is something we need
to keep a bit of an eye on and see whether we need to
put in more robust systems to deal with it.
MR VALERIO: Would you say on balance the disadvantages
are outweighed by the balance of having a wide spectrum
of representation?
MISS FERGUSON: That’s a hard one. I think as a
constituency MSP my life would be easier if there weren’t
list MSPs, but I have to say personally I haven’t
had a huge problem with it. That may be because the
area I represent is seen as being fairly solidly Labour
and therefore other people wouldn't have as much of
an interest in my area. I think if you were sitting
in an area, regardless of party, that was more marginal
it might be a more difficult situation to resolve. The
interesting thing though is that by and large within
the Parliament there is a great deal of good will and
people do work very closely together in cross-party
groups and Committees. So I do get a feeling that a
lot of the problems have bedded down. It will be ongoing
and I think a lot is to do with personalities and politics
as well.
THE CHAIRMAN: What about your relationship with Westminster?
MISS FERGUSON: Like many of my colleagues I share an
office with my Westminster colleague and we regard it
as a one stop shop which we offer to our constituents.
We tend to stick to our own areas of responsibility
because it does vary. If a constituent comes to see
my colleague, because constituents don’t always
know, as you will understand, the boundaries and frequently
they should be going to the Councillor, that sort of
thing happens anyway with Westminster MPs, so if someone
goes to my colleague but should really talk to me and
says - you should go and see Patricia in a month’s
time, it will be passed to me and I will deal with it
and acknowledge that it had been passed to me by my
colleague. I know a number of people do that but that
would only work where you were from the same party I
suppose.
MISS McALLISTER: Can you envisage any change in the
electoral system post 2007? There have been criticisms
of the additional members system for various reasons,
I am just wondering will there be any review or can
you imagine any review of a different proportional system?
MISS FERGUSON: I think it is very unlikely, I think
people have to try to take what we have and maybe work
a bit harder, but the sort of people we represent I
don’t think there would be any appetite for a review,
certainly not in my lifetime probably.
MR THOMAS: Can I go back to Aberdeen, I didn’t
understand at first, I thought this was in a sense because
you were being contacted by the people, I thought it
was to do with the Scottish Parliament reaching out
to areas which might regard themselves as more remote
from Edinburgh.
MISS FERGUSON: Yes.
MR THOMAS: Is it intended to continue that practice?
MISS FERGUSON: I think that’s actually a very
interesting discussion that we have actually started
to have. We did move originally in the first year of
the Parliament, there have been two occasions I think
when the General Assembly of the Church of Scotland
has agreed to meet elsewhere so we could continue where
we were. The first year we were only a month old and
an occasion a year or two later, on two occasions they
have asked us if we move out for a period to allow them
to take over and I think we had discussions at the beginning
about whether or not we just had a lesser or we just
met as Committees, but we thought it was important that
the Parliament was seen to continue. So we I suppose
embraced the opportunity it gave us. The first year
we went to Glasgow, the second time we went to Aberdeen.
I think in both circumstances that has been incredibly
popular, at least in the locality where we were, and
there certainly was, after the Aberdeen visit last year
quite a lot of discussion both in the media and I think
generally in communities in Aberdeen about how good
it had been and how they would like that repeated and
we certainly got a lot of bids from other cities and
towns to do similar things with them.
So I don't know, it is a discussion that I think will
continue about whether we should do that as an annual
or semi-annual thing, but our Committees do meet outwith
Edinburgh frequently. For example, the Rural Development
Committee this week were in Aberdeen taking evidence
from some of the fishing communities. We had an issue
about the provision of railways to the Borders and the
Committee went to the Borders to discuss that. There
have been a large number of occasions when Committees
have gone out to engage with the communities to discuss
issues. That is something we try to raise as a Parliament,
we try to do that if it is possible, it works very well.
SIR MICHAEL WHEELER BOOTH: Do you get the impression
the population at large look more to their Scots Parliament
member or their Westminster member as the sort of pinpoint
of political accountability?
MISS FERGUSON: I am never sure whether constituents
really spot the differences. I think there are constituents
who come to whoever happens to be available when they
want to talk about an issue, but certainly the media
focus I think has changed very much to the Scottish
Parliament from Westminster and certainly the amount
of scrutiny we get in the Scottish press would indicate
that that was the case. I think though there may be
a bit of a trend towards constituents talking to their
MSP or coming to their MSP and I think that’s at
least in part because we are a bit more accessible than
our Westminster colleagues who, of necessity, leave
on a Monday or Sunday and don’t come back until
Thursday or Friday. If I need to go to a constituency
event in my constituency this evening I can get the
train back and do that, not all our members can because
of the geography of the country, but by and large we
do that. I think we are more accessible in that sense
and I think people do tend to focus on us a little bit
more because they can access us a lot more easily.
SIR MICHAEL WHEELER BOOTH: But another side of that
is that there are still the old number of Westminster
MPs, 72 having less than half the workload and they
are paid just as much and so on, has anybody noticed
this or complained about this?
MISS FERGUSON: Well, it is one of those discussions
you tend to see in the media, I am not too sure the
public pick it up to the same level of detail, but certainly
my Westminster colleagues I am sure would argue that
that’s not the case and they have plenty of work
to do. Certainly my own experience of talking to colleagues
and working with my own Westminster colleague would
say that is certainly not the case, they are working
particularly hard, particularly in their constituencies
because that level of workload doesn’t really decrease
in the same way as the responsibilities at Westminster
do, they are still involved at Westminster across a
range of activities, so I don’t think it actually
balances out in a way that the numbers would make it
look as though it did.
MS DAVIES: With hindsight and your experience of the
past four years, what would your advice be on pitfalls
for the Welsh Assembly, I know it is a very broad question.
MISS FERGUSON: I think to be honest that consultation
is very, very important and that’s not just with
your own members, that’s with the country at large,
as far as you can connect with it. I think too it is
important that you prepare the way for what you are
trying to do, that you flag up to people at an early
stage what the purpose of what you are trying to do
is and why you are trying to do it. I think you also
have to be careful not to go too fast because you won’t
always take everyone with you, you take things a bit
more gradually perhaps.
MS DAVIES: What is evident about the Scottish settlement
is the speed and volume of the legislation, and again
looking back do you think you would have slowed that
process down, is it going to be increased in future
years?
MISS FERGUSON: There are a huge number of ideas and
proposals and policy areas that are just waiting for
development and legislation still out there and I don’t
think that will change. I do think that we will need
to allow a bit more space for private members to bring
through Bills and for Committees to bring through Bills
when we are managing the legislative programme and I
don't know, because I wasn’t involved in the discussions,
but I suspect that maybe wasn’t something that
was given a great deal of priority at the beginning.
Certainly it is something we are a lot more conscious
of now. There is no point in having a Parliament, having
Committees bring forward their own legislation or perhaps
Members bringing forward their own legislation if that
is not going to be possible to do. We have managed to
accommodate it so far but it has been fairly tight on
occasions, more from the benefit of resources than goodwill.
So I think the Parliament and Executive need to be aware
of the resources they have when they are pushing ahead
with all the good ideas and proposals that have come
forward.
MS DAVIES: And the last point on the Sewel motions,
at the start you didn’t envisage the frequent use
of the Sewel motion, do you see the use of the Sewel
motion increasing or decreasing?
MISS FERGUSON: I think it will very much depend on
the nature of the legislation that’s going through
Westminster, I don’t think it’s possible to
put a number on it. I think at the beginning there perhaps
wasn’t an expectation that there would be quite
as many going through as have gone through, but I think
it’s always important to remember we are not talking
about Westminster legislating on whole Bills or big
areas for us, it’s specific areas that we want
them to take onboard for us. In a sense I suppose you
could argue that we have the best of both worlds, we
can do the legislation we want to do and take the opportunity
of Westminster legislation to make sure that we don’t
have gaps across borders. There are areas that we might
want to take onboard that we don’t have to put
through our own legislation for, so it works pretty
well I think, I don’t think we will make a positive
attempt to decrease it, but I think we very much have
to wait and see what comes forward from Westminster.
MS DAVIES: And of course the Westminster bills are
not open to challenge from the Courts either, are they,
whereas it would be in the Scottish settlement?
MISS FERGUSON: Yes, the situation is slightly different,
we always have to be mindful of that, but I don’t
think that’s something that actually influences
us at all when considering Sewel motions.
THE CHAIRMAN: What are the mechanics of the thing,
you pass the Sewel motion up here, do you then produce
a draft in Edinburgh and send it to London or do you
send instructions to Counsel and the draft is done down
there, how is it done?
MISS FERGUSON: Colin can you help with that?
MR MILLER: In formal terms once the Parliament passes
the Sewel motion then they will write to the UK Government
informing them it has done so. In terms of the actual
drafting of the legislation, something on which the
officials in the Scottish Parliamentary Counsel get
involved, lawyers at both ends seek to agree the provision
and if there is any difficulty about it, any controversy,
then it will be referred to Ministers at both ends.
But by and large it is in the nature of the Sewel procedure
that we already have a very good idea indeed on what
the provision is before the Sewel motion is brought
forward. Indeed the normal practice is that we will
seek Parliament’s consent after the UK bill has
been introduced and before second reading, so by definition
all these discussions about the content of the provision
have already taken place.
THE CHAIRMAN: Yes, I was looking at the Sewel motions.
Actually it has been pointed out to me there is an awful
lot of them already. The Sewel motion sort of says in
general terms this is an issue we would like taken up,
thereafter the department up here takes over responsibility
for making sure that the instructions go down in the
right form and then goes to Parliamentary Counsel and
then eventually get the draft.
MR MILLER: Yes, although quite frequently the Scottish
Parliamentary Counsel up here will be involved in drafting
the necessary Scottish provisions. Very frequently the
need for a Sewel motion is in the nature of technical
wiring between cross-border issues.
MR ROWLANDS: Commencement orders on Bills which have
gone through Westminster falling within devolved responsibilities
within the Scottish Parliament, Scottish Executive are
then started, are passed through here or do they go
through Westminster, bits of legislation that apply
to Scotland would be commencement orders, would they
be made here or would they be made in Westminster?
MR MILLER: I think typically there would be no separate
commencement order for the specific Scottish provisions.
MR ROWLANDS: Why?
MR MILLER: We would be consulted in the process, normally
since it is a UK Bill it would be commenced by order
of the relevant UK Minister.
MR ROWLANDS: Would there be a provision as there is
in Welsh Bills that this would be by agreement with
the Scottish Executive or not?
MR MILLER: Not normally. I mean from time to time there
have been specific provisions in the UK bills imposing
a duty on the Secretary of State to consult Scottish
Ministers before he exercises such and such a power,
but that’s rather separate from Sewel procedure.
MR THOMAS: Does the Secretary of State get involved
at all in any of this or is it always directly the Scottish
Minister and UK Minister?
MISS FERGUSON: I suppose in a sense she operates in
a sort of liaison role very often because she is still
Scotland’s voice in the UK cabinet so she has that
sort of role and we do talk to her frequently, the First
Minister and the Secretary of State talk quite often
about matters of mutual concern and interest, so she
does have a role to play in that sense.
MR THOMAS: I am just curious in terms of the size of
the Scottish Office compared to Wales, that there seems
to be quite a large staff and therefore whether there
were functions that the Secretary of State performed
in Westminster on your behalf?
MISS FERGUSON: Yes, I mean there are because obviously
there are still areas that Westminster legislates on
for Scotland as part of the UK so she still does have
a very strong role there.
THE CHAIRMAN: Well Minister, thank you very much indeed,
I think that was practical, useful and revealing.
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