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

of the

EVIDENCE OF:
SCOTTISH EXECUTIVE MINISTER FOR PARLIAMENTARY BUSINESS
PATRICIA FERGUSON

held at

The Caledonian Hilton, Edinburgh

on

Wednesday, 12th February 2003

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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