Michael Ryle Memorial Lecture 2021

Delivered via Zoom, on the 22nd July 2021

The Importance of Inter-Parliamentary Relations

Rt Hon Ken Macintosh, Presiding Officer of the Scottish Parliament, 2016-21

Thank you…

And may I also thank the Ryle family for their support for this annual lecture series. I did not have the pleasure of knowing Michael but looking back on past events and reading the comments of previous participants, I can see the esteem in which he was held and the regard which fellow clerks, political representatives and academics alike had for him.

Speaking as a former elected representative myself, I can identify with that sentiment. I don’t know how many times I have been rescued as Presiding Officer by the wise counsel and insightful guidance of Parliamentary clerks.  Ready, at the mere mention of ‘Point of Order, Presiding Officer’ with chapter and verse on standing order 3.1(c). That was always my favourite as it is the one which pretty well says the Chair has the flexibility to interpret the rules as they see fit in the circumstances!

The clerks in turn told me that they found section 28(5) of the Scotland Act 1998 very reassuring – that says that the validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment. Meaning, if we do mess it up a bit procedurally – all should still be well.

On a more serious note, and one I will return to later, Clerks like Michael Ryle are the guardians of parliamentary democracy.  Reminding us dispassionately and with intelligence why parliamentary rules matter if government and opposition alike are to benefit from robust scrutiny and accountability.

Now when I was approached to deliver this year’s lecture – and I am flattered indeed to be the first speaker from one of our devolved parliaments to be asked to do so – the topic suggested was for me to give my reflections on the current constitutional debate.  Well I didn’t quite drop my coffee cup at the prospect, but, after five years of studied impartiality as the Scottish Parliament’s Presiding Officer, I am sure you can imagine my unease at the prospect of wading in to the most sensitive, most heated and most divisive political debate in Scotland of the last two decades.  I know that colleagues in the Speaker’s chair in Wales and Northern Ireland are able to maintain their party membership and to ‘stay in the game’ as it were, but at Holyrood, we have followed the Westminster tradition of stepping aside from party loyalties and the obligation is one that I still very much feel.  By the way, the Westminster tradition I am referring to is the pre-Speaker Bercow tradition.

So, I don’t want to disappoint you, but free from the shackles of office or not, I won’t be delivering a partisan broadside fuelled by five years of stoked up resentment. Far from it.  What I thought I would focus on instead are the issues which were concerning me as I stood down in May and which face not just my successor, but all elected representatives in each of the UK’s parliaments. Namely, the urgent and pressing need to establish greater levels of inter-parliamentary working and co-operation and more structured inter-parliamentary relations against the backdrop of re-asserting key areas of parliamentary authority as we emerge from this pandemic.

Inter-governmental relations in these isles is a more researched subject matter and one that is more likely to dominate headlines especially when the governments fall out. But I believe inter-parliamentary relations are just as important, especially when these can improve scrutiny of our respective governments’ actions.

Now I am certainly not the first to assert that inter-parliamentary relations within the UK have become an area of increasing concern. The Procedure Committee of the House of Commons is carrying out an inquiry into this very subject as we speak. That in turn follows recommendations, calls or just discussion of the same subject from Committees of the Welsh and Scottish Parliaments and the House of Lords alongside many contributions in recent years from distinguished academics studying this area of governance.  Earlier this year in the Scottish Parliament, the Legacy Expert Panel reporting to the Finance and Constitution Committee produced an absolutely first rate and timely report on the scrutiny challenges facing parliament in the context of an increasingly complex devolution settlement.

And that last point, the increasing complexity of our constitutional relationships is what is driving or creating this need for inter-parliamentary action.

Devolution has always been asymmetric across the UK, but in the first decade or more, it was relatively straightforward to understand. In the Scottish context certainly, most people recognised the principle underpinning devolution which was that powers were devolved to Holyrood unless they were specifically reserved to Westminster under the Scotland Act 1998.  The two further Scotland Acts of 2012 and 2016 devolved further powers, but they did more than that, in the areas of social security and taxation, they created areas of overlapping responsibility or shared competences in the terminology now used. Brexit, and in particular the Withdrawal Act and the UK Internal Market Act, has made matters significantly more complicated still, including introducing new powers for UK Ministers to directly fund interventions in devolved areas.

Now I don’t have to tell anyone here that there are a lot of politics behind each of these developments and I will touch on some of the political forces shortly. However, the key point from a parliamentary perspective is that I believe lines of accountability are in danger of becoming blurred and the process of scrutiny is lacking transparency and potentially suffering as a result.

At this point, I am sorry if I sound like I’m teaching my granny to suck eggs, but it has always been the case that each Government in the UK is accountable to its own parliament. I say that because political discussion of inter-parliamentary relations occasionally veers towards implying some sort of shared accountability, with Ministers in one jurisdiction answerable to elected Members in another and that is not what I am suggesting at all.  Ministers will continue to be held to account by their own peers in their own legislature, but I believe, just as there is an increasing amount of Government to Government negotiation and agreement, scrutiny of that process would benefit from increased levels of parliament to parliament cooperation and engagement.

In fact, if we look back at how this issue has evolved since 1999, where legislative responsibilities have interacted, negotiations or discussions between the different constituent parts of the UK have been conducted almost entirely at a Government to Government level under the framework of the Sewel Convention. At Holyrood for example, Parliament’s role has been limited to expressing its view on a Sewel motion (an LCM or ‘Legislative Consent Motion’ to give it its Sunday name) once that has been laid by the Government of the day.

Fast forward to today and we have an array of mechanisms and protocols at Holyrood, designed to aid the scrutiny and accountability process. So for example, where the UK Government uses Statutory instruments to introduce post Brexit regulations in areas of devolved competence, they might do so with the agreement and support of Scottish Ministers; in some cases they will be required to seek the consent of Scottish Ministers; in others still, no consultation or consent will be needed.  In all cases, the Scottish Government has to notify the Scottish Parliament of the approach taken, but a judgement on the significance or importance of the SI is applied to determine whether Ministers need to seek prior approval before proceeding. Similarly, only in areas of significant policy development would the Scottish Government be required to consult the Scottish Parliament in advance, so giving Parliament the opportunity to influence that policy development.

What remains unchanged is that parliamentary engagement is almost entirely conducted between the devolved or UK Governments and their respective parliaments.  Inter-governmental interaction on areas of shared or overlapping responsibility has undoubtedly increased, quite significantly increased in fact, but there has not been a matching expansion of inter-parliamentary relations – or certainly not in a structured way.  When the Scottish Parliament expresses a view on an SI or on an LCM, that is notified to Westminster but the process is a rather cursory one with a note added to the papers accompanying the legislation. That essentially means that MPs or Members of the House of Lords need to be motivated, proactive in seeking that information out. I believe a formal procedure which gave the devolved Parliaments’ views on such matters more elevated status would be helpful and appropriate.

I should say at this point that the new SI protocol at Holyrood has been designed and approved by MSPs and I am not flagging up disagreement with it so much as drawing attention to its complexity.  It builds on the Sewel convention for primary legislation but I would suggest that as a parliamentary procedure, it has far more moving parts and is even less transparent, less easy to follow for Members let alone the public.

It also sits alongside a further process still and that is for parliamentary engagement with the new common frameworks. As you know, the UK and devolved administrations have reached agreement on working together on some of the devolved areas previously governed by the European Union.  As the Legacy Expert Panel I mentioned earlier highlighted, it is not entirely clear whether all sides agree on the purpose of these common frameworks – is it to protect the right of devolved administrations to set policy in devolved areas or is it to promote regulatory coherence through collaboration? What is clearer, however, is that the actual process of parliamentary scrutiny of the common frameworks is very similar across all the UK legislatures and involves, for example, each government sharing the same information at the same time with each legislature. This similarity of process, by itself, strikes me as opening up opportunities for good inter-parliamentary working.

I would suggest, and this is entirely my anecdotal observation, that the detail of each of these processes and protocols is not clear even to many colleagues in the Scottish Parliament and is certainly not transparent nor accessible to the public.  Finding out what stage has been reached in the development of some of the common frameworks for example, requires serious application, so it would be in the interests of all elected representatives to work together on such issues.

The first framework agreement of course was signed in February 2016, predating Brexit.  The Fiscal Framework sets the rules by which some taxation, borrowing and welfare powers are devolved to the Scottish Parliament and operate within the wider context of the UK’s finances. The Framework followed on from the work of the Smith Commission on which the political parties were represented but one observation made of the Fiscal Framework is that neither the UK nor Scottish Parliaments had any say in its development. Indeed it was only signed off by Ministers days before the Scottish Parliament had to decide whether or not to give consent to the Scotland Act 2016, leaving no time for scrutiny. This may be one of the reasons parliamentarians have expressed a keener interest in being consulted on emerging common frameworks.

Beyond the direct parliamentary processes, the various quangos or other regulatory bodies now reflecting the complicated devolved constitutional settlement also seem to be proliferating. There have always been a few areas in the devolved era, such as, initially at least, Food Standards, where agencies worked across the internal UK borders. Under the UK Internal Market Act and with the signing of an EU-UK Trade and Cooperation Agreement we now have the Trade Remedies Authority, the Trade and Agriculture Commission and the Office of the Internal Market which will operate as part of the Competitions and Markets Authority, the CMA. The CMA for example, has a duty to report on the operation and interaction of the common frameworks with the UK’s internal market.

Again, I am not making any political point about any of these bodies other than noting the complexity of governance and accountability mechanisms. Even with enormous amounts of political goodwill and a desire to work together on a common regulatory approach, this would be a difficult landscape to traverse. Given all the signs of policy divergence, it is going to be very tricky indeed to properly assess and scrutinise the impact of different policy decisions from different governments.

Although I am being careful not to stray into party political territory, it is impossible to discuss Parliamentary processes without fully acknowledging the political forces at work – and there have been some quite dramatic developments in recent months.  The UK’s response to the pandemic for example, has shone a spotlight on the powers of locally elected Mayors in England’s big conurbations – on English devolution as it were.  I don’t want to reopen the wound, but the rather public spat between Andy Burnham the Mayor of Greater Manchester and Scotland’s First Minister Nicola Sturgeon about the restrictions placed on Scots travelling to the region was interesting simply around the question of accountability.  It was a disagreement and a situation unimaginable in the pre-devolution era.

I am not going to comment on it, but in a parliamentary context, paralleling the emergence of strong regional political voices in England was the very recent decision of the UK Government to abandon EVEL, English Votes for English Laws. 

And if the pandemic has revealed the difficulties the UK and devolved parliaments are encountering in dealing with some areas of policy divergence, the ongoing impact of Brexit is only looking likely to exacerbate such matters. The UK and Scottish Governments have already taken quite different positions on repatriated powers. The Scottish Parliament has now passed ‘keeping pace’ legislation which enables Ministers to align Scots Law with that in the European Union.  Under the Internal Market Act, and with further trade agreements expected, UK Ministers have indicated they wish to go their own way from the EU and to put stronger emphasis on the commonality of regulations within the UK.

And, of course, what may happen in Northern Ireland with the Protocol and its current ability to be part of the EU single market and the UK market raises a number of important questions for Scotland. I am sure many will watch closely as to how that pans out and where it places other constituent parts of the UK.

The political atmosphere in which these policy choices are publicly aired and discussed is also not helpful for detached scrutiny. The political language used by Governments on both sides sometimes seems to reflect an attitude of suspicion rather than one of trust and collaboration.  UK Ministers refer to what they call a grudge and grievance agenda, Scottish Ministers highlight a lack of respect and it can be difficult for Members in each parliament to effectively analyse each claim and counter claim. Even more importantly, it is hard for parliamentarians to get beyond the public spats and find detail on what it is the two governments are actually disputing since little information with substantive detail is published by the various joint ministerial bodies.

So, as I hope you will agree, applying parliamentary scrutiny to diverging policies from differing governments on areas of shared responsibility with varied legislative underpinning is a conundrum indeed.  At the very least, I would suggest that developing appropriate inter-parliamentary structures would help provide all our elected representatives with the opportunity to properly engage with these complex inter-governmental relations.

Before turning to the practical steps we might take to address these issues, I wanted to touch on two further developments affecting parliaments across the UK and that is the growing number of judicial interventions on the one hand and of dominant executive authority on the other.

Taking the latter point first, it has been chastening to see how easily power has shifted from parliament to the executive in the face of the pandemic and widespread public anxiety.

This is not a criticism of the government in the UK nor in Scotland, more an observation of our parliaments’ response to the pandemic and a reflection of a shared willingness across all opposition and government parties, certainly at the outset, to come together at a moment of national and international crisis. That solidarity may have fractured slightly over the last year and a half, but is still the default position of most elected representatives. Without going off on a libertarian sidetrack, many observers have commented how easily parliamentary protection of important freedoms – the right to assemble, to worship, for the police to demand entry to your home – was suspended. I emphasise once more that it was well motivated. In fact not only were these decisions taken with good intentions in the face of the Coronavirus threat, they were passed unanimously.

So I wouldn’t want to shatter what remains of the political consensus around tackling the pandemic, but I am hoping that Government and opposition politicians alike will be able to similarly unite on when the time is right and appropriate to restore the balance between executive authority and parliamentary accountability.

And turning to what I rather pejoratively termed judicial intervention, I am worried by the number of times the courts have been asked over the last couple of years to rule on the devolution settlement. In fact there is a case before the Supreme Court at the moment on the competence of a Scottish Parliamentary Act implementing the UN Convention on the Rights of the Child, but that is just one in a series brought by law officers, individual citizens, lobby groups and elected representatives all clarifying the limits of devolved powers and parliamentary responsibilities. 

Lord Sumption, in his excellent Reith lectures in 2019, questioned whether we wanted to continue on this trajectory, with legal judgement replacing political decision-making in some areas, but even if we do not accept the overall argument he was making about the encroachment of law into the political arena, is it not a symptom of the lack of clarity around the boundaries of devolution that we have a proliferation of so many such cases and rulings.

I am not doom mongering here, but nor do I think we should take we should take our parliamentary democracy for granted.  All elected representatives need to work at proving the worth of parliament.  We need to show that our assemblies are not merely rival soap boxes for sounding off and shouting at each other, and demonstrate instead how good scrutiny improves public policy and decision-making

So, having trying to capture some of the complexity that makes up the current devolution picture – an evolving constitutional settlement that has gone from a relatively binary system to one of overlapping and shared responsibilities, I should at least posit my own thoughts on the way forward.

There have already been several proposals emerging from our devolved parliaments and others put to Westminster’s Procedure Committee to develop inter-parliamentary relations, all of which have merit. To my mind, the difficulty is a recurring one in the world of elected politics and that is in trying to marry the political and the parliamentary.

I would not be so crass as to suggest we have to apply a “what’s in it for me” test for party politicians but I think we should take into account their political motivations and loyalties. Parliamentary scrutiny is not an academic or abstract concept for elected Members, it is the means by which you achieve political ends.

Looking at the same issue from another angle, at Holyrood, one of the concerns identified by the Independent Commission on Parliamentary Reform was the difficulty the Scottish Parliament has in holding on to “parliamentarians”:  Members with experience but who now sit on the back benches with slightly more independence of mind than those still ambitious for Ministerial office or front bench prominence. 

So I would suggest, rather than trying to come up with the perfect solution, we might be better looking at this subject from a practical angle and ask, what works for the Members themselves. So for example, if we look over recent years, by far the most successful development in the area of inter-parliamentary relations has been the work of the informal Interparliamentary Forum on Brexit, hosted by the House of Lords and chaired by Lord McFall in his previous capacity as Senior Deputy Speaker.  This forum brought together key committees looking at Brexit from the House of Lords, the Commons, Holyrood and the Welsh Senedd. Although initial enthusiasm for this body did seem to cool over time, I know that its establishment was enthusiastically welcomed by MSPs from all sides in the Scottish Parliament. It addressed a real need and allowed Members to benefit from sharing thoughts, advice and information with colleagues from all of the other UK parliaments. It led to several joint committee sessions between committees at Westminster and Holyrood with similar responsibilities.  I would add, furthermore, that the main obstacle in the way of this form of partnership working seemed to be the lack of a formal procedure in each of the legislatures to host genuinely joint meetings.

If we ask the same practical question in reverse, that is what doesn’t work for Members, a couple of further steps can be identified. For example, on Statutory Instruments, one of the issues which can create difficulties for the devolved parliaments is the timetable applied at Westminster. Once an instrument has been laid, Committees in the Scottish Parliament need time to give it full consideration, and ideally, the Holyrood Committee’s conclusions should then be shared with the appropriate Committee at Westminster before the process there has completed.

On LCMs in particular, given that these apply to pieces of primary legislation, I believe a more formal parliament to parliament procedure is needed to truly do justice to the arrangements for devolved scrutiny.  The direct accountability of Government Ministers for decisions taken remains a matter for each respective parliament but the process of policy development and public scrutiny can surely only be enhanced by sharing the information gained in each and every legislature. Given that inter-Governmental relations can occasionally degenerate into a form of megaphone diplomacy, I believe inter-parliamentary cooperation on these issues could potentially provide greater clarity for representatives and the public alike.

To this end, I would like to see a more formal inter-parliamentary process which allows Westminster in particular, but the devolved assemblies too, to acknowledge and report on the debate and discussion which has taken place in their sister parliaments.

And how could we achieve these objectives? Well I don’t believe any of these steps would require legislation.  Going down the legislative route essentially depends on Government backing, and, much as I believe Government Minsters would support greater levels of parliamentary scrutiny as it gives their decisions greater authority, I can’t see this being a priority for any administration.

Where we might be on stronger ground is in working with the Speakers and Presiding Officers across all of the UK’s legislatures. Each parliament then has an impartial representative leading on this issue. I am conscious that the elevation of Lord McFall to the position of the Lord Speaker seems particularly timely in this regard and gives us a champion at Westminster who is clearly motivated and informed on these issues.  I know that all of my former colleagues in the role of Speaker already spend considerable amounts of time and energy ensuring we enjoy good inter-parliamentary relations and expanding that work to include cross-parliamentary scrutiny over areas of shared responsibility might be a natural extension.

This was of course the direction of travel suggested by our Welsh colleagues a year or so back, but I should flag up that the big worry from a Scottish perspective, then and now, is that the issue of developing inter-parliamentary procedures might very easily became too political. The constitutional debate is such a sensitive subject in Scotland and the Presiding Officer cannot afford to become involved in anything remotely open to criticism for taking sides.

This is definitely an area worth exploring but one which would have to be negotiated very carefully to avoid drifting into party politics.

So where does that leave us?  Well, I began my lecture by singing the praises of Parliamentary clerks and their mastery of standing orders – and this is the key to the approach I would take. Clerks, as members of this forum can testify, are parliamentarians through and through and are used to applying their knowledge and expertise to creating opportunities for thorough and impartial scrutiny.  In fact, Clerks across each and all of the UK legislatures regularly share information, advice and insight on every one of the issues I have highlighted today.  Finding a new formal process to aid inter-parliamentary consideration of Statutory Instruments or Legislative Consent Motions, creating opportunities and enough time in the parliamentary timetable, ensuring Committees from different legislatures are able to meet in joint session – these are all matters which Clerks are used to wrestling with and, perhaps more importantly, they are matters which are more appropriately dealt with in Standing Orders than through legislation.  Delegating this matter to parliamentary staff and officials to discuss and negotiate might protect inter-parliamentary relations from the political dangers and heated arguments that surround the constitutional divide. It would therefore also protect the impartiality of the Speaker’s Office. 

Parliamentary clerks already have an interparliamentary forum of their own, namely the Parliamentary and Assembly Procedural Officials Network. It contains clerks from all the UK legislatures, including the Crown Dependencies. It therefore seems like a useful forum to utilise.

Clerks are also well used to speaking to and taking advice from other leading experts such as academics and researchers who study the work of Parliaments for a living and indeed, there are many present tonight through this very forum – the Study of Parliament Group.

So if we agree that we need to improve inter-Parliamentary relations, I would suggest that our Parliamentary Clerks are best placed to take this work forward. They are the principal advisers to our various Presiding Officers, they have the detailed knowledge of Parliamentary procedures, the political insight and judgement needed, and vitally, they have the interests of parliamentary democracy at heart.

Given that Clerks make up a fair number of this audience, on that note, over to you.