Is Holyrood passing the buck?

YES

KENNY MACASKILL, SNP Justice Spokesman

Sewel motions have been the subject of debate in Parliament and press column inches. They are the mechanism by which Westminster legislation can be incorporated into Scots law through the Scottish Parliament but without recourse to primary legislation. It’s a sensible measure to circumvent unnecessary debate and allow speedy progress for necessary legislation. Even those such as I who seek a fully sovereign Parliament recognise the need for such a system and that there are circumstances where there are benefits to it.

The issue is therefore not the use of Sewel motions but the number of them and the issues being covered by them. Even Lord Sewel, the proponent of them whose name now adorns them, believes that they are being used too often and inappropriately. At the time of writing 61 had been passed, with more in the pipeline. They are being used to avoid proper debate on contentious issues such as same-sex marriage, or drive through unpopular proposals such as super-casinos.

All legislatures, whether devolved or otherwise require procedures to deal with non-controversial legislation. That after all is the logic behind enabling and subordinate legislation. To do otherwise would unduly burden the legislature and hinder the progress of the Executive. Arrangements are, also, necessary throughout the European Union to address the growing number of directives from the Commission and Parliament that impact on legislation as much as life itself. Sewels are arguably akin to that. In a devolved legislature the needs are even greater. The overlap between devolved and reserved powers dictates that there needs to be an accommodation to ensure good governance.

Scotland, with its hybrid devolution, lacks the symmetry of a federal system and the needs are all the more. The current devolution framework has a myriad of areas where either there is a clear overlap or a very grey area for responsibility. After all, when criminal justice is devolved but firearms and drugs are reserved there is a clear need for interaction. Likewise when gambling is reserved to Westminster but the social, health and economic consequences fall to Holyrood, care needs taken to ensure that proper debate and scrutiny occur. As a result Sewel motions are needed, but must be addressed with care. Otherwise legislation is created and imposed that neither fits the requirements of Scots law nor meets the social and economic needs of Scotland.  

Recent debates of great importance to law and justice in Scotland have displayed a lack of understanding of our needs or sympathy for our wants. The creation of a UK Supreme Court is of significant impact not just on Scots law but life in Scotland. To have dealt with it in a short circuit way was outrageous. An opportunity was available to review whether the anomaly of a further appeal in civil matters but not in criminal cases should remain. Even if it is to, proper debate and scrutiny were needed. Instead the unedifying position occurred of the Lord Advocate parroting the Lord Chancellor’s instructions. That ill serves Scots law and was not what was intended when the Parliament was thought of or voted for.

Similarly, to drive through plans for a UK-style FBI undermines the independence of the police. It brought condemnation from the Scottish Police Federation, normally a constitutionally reticent body. Given that the current devolved settlement ceded powers on the police to Holyrood, there was a duty to address it there. Even if the plans are what is desired, a Sewel motion with limited debate and room for amendment is inappropriate.

Power brings responsibilities as well as rights. That means an Executive must lead as well as react. It needs to allow debate, not stultify it. Where there are uncontroversial areas and our society would benefit from an accelerated method, it should be used. Where there is clear controversy and a distinct Scottish agenda it should not. The Scottish Parliament was created to allow Scottish solutions for Scottish problems and to allow our distinctive law and society to develop as it sees best. The current and constant use of Sewel motions by the Executive is a dereliction of duty and abrogation of responsibility on their part and must cease.

NO

MARGARET CURRAN, Minister for Parliamentary Business

Last February’s Morecambe Bay tragedy pushed the plight of migrant workers into the public conscience. Few people then disputed that it should be made a criminal offence to traffick in human beings for the purpose of exploiting them. The question facing Scottish Ministers was how the offence could be quickly and effectively incorporated into Scots law. With no suitable bill immediately available in the Scottish Parliament, the choice could have been stark – delay its creation, or make room for it by delaying other important legislation.

But there was a third option: asking the Parliament to scrutinise the proposal and consent to its enactment in legislation then progressing through Westminster, consent being signalled by a “Sewel motion”: seeking the consent required by the Sewel Convention’s stipulation that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. We chose that option. I am glad. It gave Scotland a win-win solution.

Since July 1999 the overwhelming bulk of legislation on devolved matters has been enacted through Acts of the Scottish Parliament (78, wholly dedicated to devolved matters, have received Royal Assent), not through Westminster Acts facilitated by Sewel motions (48, often with very limited devolved provisions). That will always be our preference. However, we also believe that dogma should not stand in the way of good law. Sewel motions can be appropriate in certain circumstances:

1. as with the above example, if Westminster is progressing legislation which could usefully be replicated in Scotland, but Holyrood parliamentary time is fully allocated to distinctive Scottish priorities;
2. if legislating at Westminster offers an appropriate means of dealing with issues which straddle both devolved and reserved matters;
3. if legislating on a UK-wide basis offers the most effective means of avoiding cross-border loopholes or securing a desirable level playing field in key areas of law;
4. if making minor and technical changes in devolved areas would facilitate the effective operation of legislation in non-devolved areas;
5. if a new operational role is proposed for Scottish Ministers in reserved areas (which, by definition, the Parliament could not create).

Crucially, whenever the Executive promotes a Sewel motion, its belief is that the legislation will be good for Scotland. It is because of that belief that we are prepared to weather the ritual flack that goes with Sewel motions. Why the flack?

One allegation, perversely, is that the Executive uses Sewel motions to avoid controversy by “passing the buck” to Westminster. That misunderstands the position on two fronts. First, Sewel motions are not an especially effective means of avoiding controversy! In fact, they virtually guarantee that the most meritorious proposal will be subject to controversy and opposition – witness the example at the start of this article. Secondly, it is MSPs who vote on Sewel motions and in so doing decide whether a particular measure should be incorporated into Scots law – so the buck stays where it was put by the Scotland Act, the Scottish Parliament. And that remains the case after a Sewel motion has been approved – whenever the Scottish Parliament consents to a specific measure being enacted this way, in no sense does it reduce its ability (or increase the ability of Westminster) to legislate on that matter in future.

Another criticism is that procedures do not allow MSPs sufficient scope to scrutinise Sewel motions before taking decisions. The Executive has taken steps to address that concern. In this session we informed the Parliament of forthcoming Sewel motions before the associated bills were even published, and delayed seeking decisions until bills reached the last scheduled amending stage at Westminster. Consequently, our Parliament has virtually the same time to scrutinise the often limited devolved elements of the legislation as the relevant House at Westminster has for the entire bill.

The current Procedures Committee inquiry will have full Executive support identifying further procedural improvement. But the question of principle will remain. Within the devolution framework, should our Parliament be able to utilise Westminster legislation for the benefit of Scotland? Yes.