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

of the

EVIDENCE OF:
THE HEAD OF LEGAL & PARLIAMENTARY SERVICES OF THE SCOTTISH EXECUTIVE
ROBERT GORDON

held at

The Caledonian Hilton, Edinburgh

on

Wednesday, 12th February 2003

MR GORDON: Thank you very much and from me too, welcome to Edinburgh. I am Robert Gordon, I am currently the Chief Executive of the Crown Office and Procurator Fiscal Service and also Head of Legal and Parliamentary Services in the Scottish Executive.

Your previous two witnesses have been my current main Ministerial bosses, the Lord Advocate to whom I report as Chief Executive of the Crown Office and also on civil legal matters because the Legal and Parliamentary Services Department is a grouping of the Civil lawyers, Parliamentary draftsmen and administrators. That part of the Department that Colin Miller who is with me is in looks after constitutional and Parliamentary issues - that part of the Department reports mainly to Patricia Ferguson on relationships with the Parliament, between the Executive and the Parliament on the management of the Legislative Programme and on constitutional issues and the working of the Scotland Act.

On the 3rd of May, 1997 I was made Head of Constitutional Group which we set up in the then Scottish Office to deliver the new Labour Governments’ commitment to have a Scottish Parliament up and running very quickly after the election. In that position I led a very dedicated team who produced the "Scotland’s Parliament" White Paper by the end of June, published in July, a hectic task which was greatly helped by the work which had been done before by the Scottish Constitutional Convention which had published its Scotland’s Parliament, Scotland’s Right report on St Andrews Day in 1995.

After the publication of or in parallel with the preparation of the White Paper, we were putting through Westminster a Referendums Bill to provide for the pre- legislative referendum which the Labour manifesto had promised and once that was through we made the preparations for and conducted the referendum in September 1997 and then, in December 1997, we published the Scotland Bill which was true to the White Paper which in turn had been true to the plan in the Constitutional Convention documents.

1998 was spent getting the Scotland Bill through the Houses at Westminster and in parallel working on the Standing Orders and the procedures for the Parliament servicing an all Party group which included representatives from Civic society, very much on the model of the Constitutional Convention except this time all four main political Parties were participating. A Consultative Steering Group chaired by the then Minister of State, Henry McLeish, set the ground rules for the Parliament and guided the preparation of draft standing orders and then in parallel with that we were making ready a temporary home for the Parliament and making the preparations for the elections in May 1999. Immediately after the elections the transformation from Scottish Office to the Scottish Executive took place with the establishment of the Scotland Office and new Secretary of State, Donald Dewar, the previous Secretary of State having moved to be First Minister. On the 1st of July 1999 the formal opening of the Scottish Parliament took place or as some have it the restoration of the Scottish Parliament after 300 years.

THE CHAIRMAN: Well that’s very interesting, thank you very much. How do you think it is working?

MR GORDON: Pretty well I think. As an administrative civil servant it is pretty challenging and I think the contrast with the way that I used to work as a Scottish Office civil servant, is significant. The business that I had an interest in then would feature at Westminster once in a while. Now I am held to account pretty regularly by the Scottish Parliament; dealing with Parliamentary questions; dealing with Ministerial correspondence; even dealing with petitions, which as you may have heard are taken seriously by the Parliament here. It is quite a challenge but as a democrat I think it is a splendid thing.

SIR MICHAEL WHEELER BOOTH: As one of the, so to speak, fathers of the whole thing, you must be feeling pretty pleased. What we are trying to find out is how it works and whether there are parts of it which should be copied in some way or other and some witnesses said this morning you don’t have to follow us absolutely, you can pick and choose. That was very good advice but what would you say are the things you would particularly commend about the way you do things and secondly, and I know these are big questions, are there parts that perhaps were a mistake. I would particularly draw your attention to the Convention and that background which has this sort of brave new world, we are going to abolish politics and original sin in politicians and get our streak to it which inevitably could not be fully realised and in practice has not been fully realised so these are two quite large questions.

MR GORDON: I am interpreting the first question as why does it work or what are the factors and I think there are a range of factors. One is I think the way the ground had been prepared in the Constitutional Convention and people had worked for many years, Labour and Liberal Democrats – in opposition – with the Churches, the Trade Unions and other components of civic society just to thrash through what the Parliament would do.

SIR MICHAEL WHEELER BOOTH: But you weren’t a member of that?

MR GORDON: We were serving in a Conservative Government at the time, and we were not party to that at all.

SIR MICHAEL WHEELER BOOTH: You weren’t allowed to have somebody to look on...?

MR GORDON: No.

THE CHAIRMAN: Does the Convention produce the White Paper?

MR GORDON: It produced this publication, Scotland’s Parliament, Scotland’s Right in November 1995. What the Convention decided was that all the powers and responsibilities of the Secretary of State for Scotland should transfer to the Scottish Parliament and that was an advance on the scheme of the 1970’s where there was a much more restricted settlement proposed. I think from where I sit now one of the successes of the current settlement is the extent of the powers that are available to the Scottish Parliament and Scottish Ministers.

In the preparations for the White Paper and in the debates around the White Paper there were arguments about areas where the "settlement" or the scheme might have gone further in relation to broadcasting, equal opportunities and the like. I think we found – or rather, the politicians found –a formulation around equal opportunities and diversity where although the legislative framework is reserved there is an opportunity for the Scottish Ministers and the Scottish Parliament to play a role in promoting equality and diversity. Broadcasting is an issue that continues to come up from time to time. So, I think it was thought about hard in advance and a strong settlement was developed which the UK Government then delivered. Then I suppose there was a mixture of building on what worked at Westminster and in Whitehall, a Parliament and an Executive together. Moving on to the second part of the question...

THE CHAIRMAN: Before you do that can we finish that because it is an interesting question. In the White Paper produced by the Convention, the right to pass primarily legislation that was unquestioned was it, that it should come to the Assembly?

MR GORDON: To the Parliament, yes. There was absolutely no question about that. I mean, one area in which the Constitutional Convention document was fairly silent was on the composition of the Executive and the role of the Executive as opposed to the Parliament. That was developed more in the White Paper but again by the time of the publication of the White Paper it was clear that Ministers had in mind a legislature and an Executive.

SIR MICHAEL WHEELER BOOTH: In the Convention report, the whole emphasis is on a Committee system and inclusivity, transparency and general lovey dovey is thought to exist in the United Kingdom Parliament and other European Parliaments?

MR GORDON: Yes. I think also, and this is what I was coming on to, in the Consultative Steering Group, there was certainly a will – while recognising that real politics would still be alive and well – to see if there were ways of using the Committee system to get people to work together to find Scottish solutions to Scottish problems.

MR THOMAS: At this time in Parliament in terms of preparation of the White Paper I imagine you must have been comparing notes elsewhere with Whitehall in terms doing the preparation and of course at a parallel point you have the Welsh White Papers coming along, in fact probably in spirit closer to the Convention’s idea of inclusivity. I suppose we have now seen the Assembly move away into the clear Executive Parliament mode but what were the arguments within Scotland for moving in that direction as opposed to staying in the more Convention Assembly mode?

MR GORDON: I don’t think that we felt we were moving but there was a proposition that the responsibilities of the Secretary of State should be devolved and these responsibilities would be discharged by ministers and I think we certainly saw it as just filling in the detail around how that would work, you had the Parliament which would legislate and an Executive which would be the Government of devolved Scotland.

MR PRICE: You refer to the strength and extent of the powers. When you were talking about strength was this very much the extent and flexibility of the powers you were talking about or was this more about durability and if it wasn’t durability can you expand what you meant by strength and also deal with the issue of durability?

MR GORDON: I meant principally the extent because as I said in the settlement in the 1970’s a number of areas that were even then the responsibility of the Secretary of State for Scotland were to be reserved to Westminster. In the period between the 70’s and the late 90’s there had been a considerable amount of further administrative devolution so that for instance responsibility for the Universities had been devolved or had been de-centralised to the Scottish Office as had responsibilities in areas of industrial support and training, indeed I think as had happened in similar areas with Wales. I suppose, moving on to the second leg of your question, the extent of the settlement probably did help with regard to durability. Opposition Parties and others were not mounting huge arguments for significantly increased powers for the Scottish Parliament and in this first period of the Parliament, these first four years, I can’t recall there being huge pressure for adding to the settlement. As you probably heard from earlier witnesses there have been marginal adjustments using the levers, the machinery in the Scotland Act as well as minor adjustments, to tidy things up again using other powers in the Scotland Act.

MR JONES: To some extent as you say in one sense had there been a Scotland Act say ten years previous, 15 years previous, the powers available, the transfer would have been less and there was a demographic deficit on the process and the events, issues are still important, okay, in this four year period there haven’t been perhaps an awful lot of new constitutions or new Acts of Westminster Parliament which Scotland can deal with in its own way. If there was a change in Government and a whole new manifesto of organisation and policies then there would be a difficulty that the settlement would have been set in a certain way and it would be more difficult perhaps in the future or would it not be to get new powers devolved?

MR GORDON: Obviously, it wouldn’t be difficult if there was a different administration that wanted to organise devolved business in a different way so issues around NDPB’s or not NDPB’S or how policy in particular areas is run would be open to a new administration with a different outlook to legislate on or to make policy changes on. The issue would be if a different administration thought it was absolutely crucial to the working of the devolved arrangements to have responsibility for a significant area of policy or legislative competence which is currently reserved to Westminster .

MR ROWLANDS: We have been told that before 1999 getting the odd Scottish Act or two through the Westminster system and suddenly in four years you have got 60 Acts. What was the estimate at the time of, in 1999, of what was going to be the cost of staffing and implementing the legislative powers, draftsmen and all the rest of it. How did that compare pre and post 1999 and what was, what has been the outcome as opposed to the original estimate?

MR GORDON: I don’t have the precise figures at my finger-tips. Before 1999 we were aware that there were legislative proposals that were queued up and couldn’t be found time at Westminster and we assumed that there would be a reasonable legislative programme. I don’t know if Colin can remember if we thought in terms of say the back of envelope 8 or 10 in the year, something of that kind. It is obviously quite difficult to measure because Bills come in different sizes so the global number of Bills may not necessarily be a clear indicator.

MR ROWLANDS: How many had you got in 1999 and how many have you got now for example?

MR GORDON: In 1999 we transferred from London almost all the Parliamentary draftsmen that we had there at the time and from memory that was six and we now have eleven. Of course Parliamentary drafting is quite skilled and we were concerned at that stage about the time it would take to build up capacity but we have been pleasantly surprised by how quickly people we have recruited from outside and who have transferred from our Legal Department, have picked up drafting skills. The draftsmen have had to work very very hard for the four years and one of the things we are trying to do is to build up reserves in the expectation we will have a fairly full legislative programme in the next Parliament as well.

MR ROWLANDS: The reason I was asking you is one of our remits is that we have to put a cost to any recommendation we make and I know from my own Westminster days taking a Bill through the House at various stages is very expensive, quite costly in time, energy and resources and this leap that you have done would give us some kind of indicator of the cost implications of transferring powers of primary legislation, that’s why I am interested if you can give us some ball park figures

MR GORDON: Certainly, in fact the Permanent Secretary who you will be seeing tomorrow, will be armed with more figures but I can tell you we have significantly increased the number of lawyers because we had to split our legal department and set up the office of the Solicitor to the Advocate General supporting the UK Scottish law officer, the Advocate General, so some of the lawyers who were previously in the Solicitors Office here went off to that. We will get you the precise figure afterwards. We also had to add to the capacity within the Solicitors Office serving the devolved administration because we now had many other things: a written constitution, so more issues of whether matters were within devolved competence or not had to be addressed as well as coping with the incorporation of the ECHR. We were very fortunate in recruiting a lot of very able lawyers. I think you were referring to taking Bills through. We have had relatively junior lawyers finding themselves instructing Bills quite early in their careers. We have also found a lot of people, administrators, acting as Bill team leaders at a slightly lower level than it would have been done in the old days when we had relatively few. Indeed not that many people had the experience of taking a Bill through Westminster but we now have (and of course this is setting things up quite well for the next four years) a lot of people who have had experience at taking a Bill through the Scottish Parliament. I can get you the precise figures afterwards.

MS McALLISTER Are there time-tabling constraints in terms of the number of Bills and possibly complexity issues as well given the role of the Committees and the legislation process as well?

MR GORDON: There is quite a long lead time and part of the task that Colin and his team perform is to try and manage pro-actively the legislative programming and persuade colleagues in other departments who have ideas for legislation that there is a long lead time. The pre-legislative consultation has to be undertaken, then the various processes of preparation of the Bill and then taking it through the Parliament. Of course because unlike Westminster we have a set term the expectation is we will get through our programme.

MR THOMAS: To weigh up are your resources sufficient to actually juggle a number of really complex Bills at the same time?

MR GORDON: Yes.

MS McALLISTER: You can cope with that?

MR GORDON: Yes. It’s an art, not a science, I think Colin and his team and the Minister for Parliamentary Business and her deputy and their Private Secretaries play a very crucial role. We started off without a Cabinet sub-committee on legislation but we quickly established one really to keep the processes under control and of course in addition to Executive Bills we are seeing more Committee Bills emerging. Indeed in the next Parliament I think the expectation is there will be more pressure for more Committee Bills as well as Members Bills and of course private Bills are beginning to come through because the private legislation procedure – modelled on Westminster – are now beginning to be used.

MS SUGAR: Can you just expand on that about Committee Bills and private Bills and how are your staff involved in advising or preparing or doing whatever?

MR GORDON: Colin might want to comment on Committee Bills but as far as Members Bills, the involvement is quite akin to involvement with Private Members Bills in Westminster. You are familiar with that. We want to make sure that the Member’s Bill which is securing support is going to be workable, is going to fit into the legislative structure and that can be quite labour intensive. Some of the Members Bills have actually gone through with Executive blessing quite often (again as at Westminster) to tidy up areas of the law and in those cases Members have had support from Civil Servants in the way that we were familiar with in Westminster itself. Could Colin say something?

MR MILLER: In a way this is one of the quite definitive features in the Scottish system, the fact that the Committees do have power to introduce and pilot through legislation themselves. Two Committee Bills have gone through in their entirety and a third which is to establish a statutory children’s commissioner is on its way through and should complete its passage before dissolution. One of the others was to establish a Scottish Parliamentary Standards Commissioner so these are quite substantial pieces of legislation and the process there is that the Committee will itself take evidence, produce a report and then on the basis of that report the Committee effectively will instruct the Parliament’s Non-Executive Bills Unit to draft the Bill. Now obviously the Executive retains a strong interest in Committee legislation and the Executive has an opportunity to discuss it with the Committee to submit evidence and bring forward amendments during the Parliamentary passage of the Bill but at every stage of the process from inception to passing it through, the Committee is actually in charge of the Bill, not the Executive Minister.

THE CHAIRMAN: Can I ask a factual question. What is the Parliament’s Non-Executive Bill Unit?

MR MILLER: It’s basically a drafting resource within the Parliament itself but the Members of that Unit are all staff of the Parliament not staff of the Executive and they also incidentally draft Members Bills so it is quite distinct from the Office of the Scottish Parliamentary Counsel.

SIR MICHAEL WHEELER BOOTH: My two points are, on the Committee Bills isn’t there a fear that, because the Committee goes through hearing evidence committed to the cause that it underlies the Bill that they lose an element of dis-passion or rationality of thought or whatever you would like to call it, when they are going through the Bill and amending it. How is that guarded, that’s my first point, and my second point is, the whole Committee of Process on legislation, would you suggest where we are told works pretty well, in fact it makes it more difficult and more time consuming for the Executive to see legislation through on to the Statute Books because you are scrutinised more, if you ask people who know about the subject to tell you what they think in the way that the MP in the Standing Committee is totally excluded from doing he just has to sit and obey the Whip and signs his letters to constituents?

MR MILLER: The answer to your first question which is the Committee having decided for example to establish a Standards Commissioner or a Children’s Commissioner does it then becomes effective by parti pris. The Committee will itself take evidence at Stage 1 in exactly the same way as it does for an Executive Bill. It will then produce a report in response to the draft Bill but at stage 2 a separate ad hoc Committee is formed and that provides, that is intended to provide a kind of fresh eye.

SIR MICHAEL WHEELER BOOTH: And that has new Members on it?

COLIN MILLER: Yes, so for example with the Children’s Commissioner, two Members of the Education Committee came on to the ad hoc Committee but all the others drawn from all the Parties had no previous involvement with it so this is intended to provide a second look as it were as the Bill goes through stage 2. On the consultation process in relation to both Executive and Committee Bills, our process is deliberately quite front loaded but that in very large part is of course because we don’t have a revising chamber so there is much more emphasis on trying to get the Bill right even before it is introduced into Parliament.

SIR MICHAEL WHEELER BOOTH: And so far do you think you have, I mean is there a single Act of the Scottish Parliament that you think is bound to be amended reasonably quickly?

MR GORDON: I think the answer to that is no. One of the reasons of course is because of all the questions we have to be very careful of before a Bill is introduced – it doesn’t trespass on reserved issues or is in contravention of the ECHR – so there is much more of an emphasis on getting the Bill right before it is introduced; and of course a two-stage consultation process by the Executive before the Bill is introduced into the Parliament in the first place.

SIR MICHAEL WHEELER BOOTH: And a last supplementary, the Constitution Committee in the Lords has drawn attention to the fact that the Scottish Office under the Secretary of State has grown enormously while the Welsh Office has not. Now why is that?

MR GORDON: I think it is probably a timing issue because at the point of the creation of the Scottish Executive the Scotland Office was very small indeed. A significant number of the staff in the Scotland Office are the lawyers that I referred to earlier who support the Advocate General and help the Whitehall Departments on Scots law issues. I think beyond that the Scotland Office has three divisions: one looking after constitutional issues where there are continuing responsibilities in relation to the Scotland Act and the elections and so on; another division looking after social issues and the third one looking after economic issues so that in terms of support for the role that the Secretary of State continues to play it is not actually a very large department. MRS DAVIES: What is the size of the non-Executive Bills Unit?

MR GORDON: I think you are hearing from Sir David Steel and Paul Grice tomorrow and they will be able to tell you precisely, I think it is quite small and it is made up of a panel of people not all of whom are employed full-time as I understand it but I think the better person to ask is the Presiding Officer.

MR PRICE: You talked about the changes at the time of devolution. To what extent has that affected the relationship of civil servants in Edinburgh with civil servants in London. Is there a sense that you cease to be part of the whole Civil Servants’ attitude, that you are now something different, for example that information doesn’t flow as easily and secondly to what extent is the policy thinking where there is development of new ideas through research shared between the Civil Servants of both ends?

MR GORDON: I think the relationships have to be worked at and indeed that was the position before devolution when one had to make an effort to keep in touch with Whitehall opposite numbers. I think those of us who were at the centre of the devolution project working with devolution co-ordinators in all other departments, had very close relationships. Deliberately the various bits of machinery – the memorandum of understanding, the concordats will which I think you are familiar with; built on that. There has been a strong emphasis on keeping in touch and trying to avoid surprises so that, looking across the water front, there are many examples of good bilateral relationships between departments north and south and indeed involving Wales and Northern Ireland, examples being the Agricultural Departments getting together on a regular basis on issues of common concern, the Health Department similarly. I think the Departments at the centre that Colin works with; linking with other similar units in Cardiff and Belfast as well as in London, can take an overview of how things are working and try to spot areas where difficulties may be arising, and to work through solutions so far that have proved very beneficial. In addition Ministers have tended to develop bilateral relationships with opposite numbers and there is a fair amount of access to thinking on policy development which was indeed a two way street, with the devolved administration sharing thinking on policy developments for the most part to avoid unwelcome surprises.

MR PRICE: Avoiding surprises is an expression implying something that is politically driven to avoid bad publicity and such like. Coming at it from a different angle, the policy development based on research and new ideas and so on, to what extent is there that driver in the relationship?

MR GORDON: I think there are some areas where again the thinking may be politically driven in terms of commitment to delivery, for instance, which is a common theme in London and here. Different ways of achieving delivery from policy development right through to the delivery of a service on the ground offers scope for lots of sharing of ways of doing things. I don’t know if Colin wants to comment on examples in other areas and I think on the health front there is a lot of sharing of thinking north and south.

MR MILLER: One of the reasons the Joint Ministerial Committees were established was to share ideas and to develop policy and so on. For example we have a JMC on poverty which has met from time to time, also a JMC on the knowledge economy. They provide a forum for essential policy ideas to be shared and to some extent common policy threads to be developed across the administrations. It obviously in the end remains the responsibility of our Ministers exactly how to take this forward in devolved areas and similarly the UK in reserved areas but I think it has been quite interesting, the extent to which people come together on both official and Ministerial levels. There is a separate set of relationships around the British Irish Council as you know and Ministers meet both in plenary and also in specific areas under the auspices of the British Irish Council. Scotland and Wales share responsibility for social inclusion and recently headed a joint summit on social inclusion in November last year.

THE CHAIRMAN: I wonder if I can ask a more general question. How has it turned out differently from what you would have expected?

MR GORDON: Having lived through it, it is pretty much as I expected it. I think there has probably been more of everything than we expected, more Parliamentary questions and more Ministerial correspondence. We hadn’t expected there to be quite as many Ministers and we certainly didn’t expect there to be as many Parliamentary Committees as there are. Everyone is still pretty busy, I think in the early days it was about getting up to speed, learning the new ways of doing things and I think we are still finding we are pretty busy because there is a fairly full policy agenda. I think there is an amount of energy that has to go into the proactive development of policy and the work, as we were observing earlier, in taking legislation through the Parliament and so on. There is also a fair amount of effort because so many issues are opened up and looked at and Committees are scrutinising issues and Ministers and officials have to have a position and be able to account for what they are doing so there is just certainly a sense that there is more of everything than we might have expected.

THE CHAIRMAN: Can I just put the question round the other way. If you sit down with a blank sheet of paper and were producing a constitution for a devolved Government in Scotland, how different would it be from what you have got?

MR GORDON: Really not very much at all actually.

THE CHAIRMAN: Just tidy up the ragged edges and that’s enough?

MR GORDON: Well indeed, I think one of the successes of the Scotland Act was schedule 5 that sets out what is reserved and the various devices that there are. I think we have talked earlier about section 30 orders and section 63 orders and the minor tidying up orders towards the end of the Act so where there is political and administrative agreement over a ragged edge, which needs treatment, there are ways of doing it there which are short of having to amend the primary legislation.

MR THOMAS: And you don’t see any major powers which you feel ought to come down to tidying up, you started from what the Secretary of State had , that pre-supposes that was right at that stage?

MR GORDON: Well that position had been arrived at after more than 100 years of incremental de-centralisation. Again maybe that’s a question for the politicians rather than for a Civil Servant. I think what we have got works and it works pretty well but I think as your colleague was suggesting, an administration with a radically different outlook might have some problems.

MR THOMAS: One of the things I am having difficulty from the picture you are painting is that my experience of working in Whitehall Departments is you end up some days banging your heads against the wall because of the lack of understanding some of them have about devolution issues whereas the picture I get from you is that it seems to be, in fact the scene looks pretty stable in relation to Whitehall, is that really the case?

MR GORDON: Yes, I think you have to bear in mind that where we started from with the Scottish Office and its relationship with big Whitehall Departments was sometimes quite a scratchy relationship – for instance in getting a point of view taken into account. I think in some ways we are in a stronger position in that, we have got legislative competence in some areas so we, and our Ministers, don’t have to agree a uniform GB or Scotland and England position on something. This is how it is going to be done in Scotland so in that area there is strength. I think we have to keep working on the relationships but as Colin was saying, we have the Joint Ministerial Committees and the top level Joint Ministerial Committee chaired by the Prime Minister which meets annually. On that occasion the senior Ministers commit themselves to working together and to take stock of how things have been so I think there is that signal from the top that in current political circumstances there is every wish to work well together and from there on down it is about developing and maintaining relationships at both ministerial and official level.

SIR MICHAEL WHEELER BOOTH: But what has been the effect on the Scottish Civil Service. The implication of what you are saying is there is far more work, there are new policies, it is exciting but there has been an increase in staff and an increase of workload. Is that right? Have I got the right impression?

MR GORDON: Yes.

SIR MICHAEL WHEELER BOOTH: And can you go on so to speak doing the sort of rocket going up in the air for ever?

MR GORDON: We had a step change in 1999, obviously from 1997 onwards, we had a big project to make devolution happen and we were staffing up for 1999 in the knowledge that we would have to be more expert in many more policy areas and have far less scope for piggy backing on a policy made in Whitehall. That allowed us to take in a lot of people, bright 30 something policy analyst types from a variety of different backgrounds which was very healthy for the organisation. We also took in people at other levels too.

I think we don’t expect to continue growing exponentially. The Permanent Secretary will have more to say about this tomorrow. We have to learn to get smarter at what we do. I think we do spend a lot of time on the reactive side of the business dealing with the increased number of Parliamentary questions and so on and we need to get better and quicker at doing things of that kind and freeing up the time and energy for the proactive things.

MS McALLISTER: Can I ask a question about how much time do you think is saved by using the Sewel device or to put it another way, if the Sewel device wasn’t available how many more draftsmen and lawyers would you need?

MR GORDON: It is difficult to quantify it but Colin is the expert on Sewel and I will hand over to him in a minute but Sewel operates in those areas where a Westminster Bill will be predominantly reserved and there will be some things that are devolved and if we were to have to legislate for the devolved bit on its own it would produce a very odd little piece of legislation and in those circumstances we have tended to see the Sewel motion as a very useful bit of housekeeping. There are other areas where there is no difference in policy intention but there is perhaps a timing issue makes sense and particularly where it wouldn’t make sense for the law to be out of step for an extended period. I think the topic of tobacco advertising is a good example of that.

MR JONES: But sometimes duplication, overload and overwork results in confusion with the people, we heard this morning about the Fisheries issue being non-devolved because it was a European situation but obviously something like that will affect Scotland much more than anywhere else within the UK and simply from a Civil Servants point of view there is a big responsibility to be seen to be delivering, to having to deliver much of that through Westminster. Also separate channels into Europe themselves but from a public point of view or an officials point of view it must have some extremely confusing questions that you couldn’t get straight answers and that seems to happen more in Wales because the less the Parliament is devolved anyway. You mentioned broadcasting earlier on?

MR GORDON: If we stick with European issues we think that the arrangement we have got there is the best of both worlds because it would have been feasible to say everything European is reserved but we have got this position that we participate in the negotiation of the UK line then we are part of the formulation of the UK line in Europe and then are responsible for implementation within Scotland for devolved matters.

THE CHAIRMAN: Yes only because you have got the same party in Government in Edinburgh and London. I can imagine a situation if London were different, I can imagine a situation in which London would not go anywhere near a negotiation with Brussels

MR GORDON: It has been a Liberal Democrat Minister in Agriculture, Fisheries and the Environment.

THE CHAIRMAN: Can I thank you very much indeed for coming. It’s interesting I think the way things are emerging in the course of the day, I think you have helped us greatly by telling us a lot about the way it is actually done as opposed to the way in which it is supposed to be done so thank you very much indeed.