How not to do business: Holyrood’s Scotland Bill Committee

I was due to give evidence to the Scottish Parliament’s Scotland Bill Committee on Tuesday 18 January.  I’ve now had to withdraw from that, and sadly won’t be able to assist the Parliament with its inquiry into one of the most important issues that’s come before it since it was established.

My reasons for this derive largely from what happened when Professors Drew Scott and Andrew Hughes-Hallett gave evidence, on 11 January.  They went expecting to be asked questions specifically about the bill and their evidence on it (highly critical, which isn’t surprising if one’s followed their work over the last couple of years).  What they were pitched into, instead, was an inquisition about their work on fiscal autonomy.  Strictly speaking, issues of full fiscal autonomy are beyond the Committee’s formal remit, which concerns only the Scotland Bill and the legislative consent memorandums relating to it.  Scott and Hughes-Hallett had emphasised in their written evidence and opening statement that they were concerned only with the bill, not with fiscal autonomy, but this was overlooked by the committee.  The resulting session was clearly highly acrimonious.  There’s a news report from the Scotsman here, and the full transcript is available here (their evidence starts at col 155).

The way the Scotland Bill Committee works was always going to be contentious.  It is chaired by Wendy Alexander MSP, who first proposed the idea of what became the Calman Commission when she was Scottish Labour leader.  Its expert advisers are Jim Gallagher CB, who was formerly Director-General for Devolution at the Cabinet Office and head of secretariat for the Calman Commission, and Professor David Ulph, a highly distinguished economist and formerly a member of the Independent Expert Group which advised the Commission.  This has created a widespread belief that the Committee’s outcome is pre-determined, and as a result two economic experts on the broadly nationalist side of the debate, Jim and Margaret Cuthbert, have declined to give evidence to it.  This treatment of Scott and Hughes-Hallett, who have also been identified with that side of the debate (though they disown a political purpose in their work) may well reinforce that.

In a political sense, what the Committee appears to have been trying to achieve by its discussion of Scott and Hughes-Hallett’s work on fiscal autonomy is quite understandable, even if it isn’t a political fix.  The Scottish Government has persistently preferred to talk about its preferred policy, of full fiscal autonomy, rather than the proposals set out (now) in the bill.  It’s been doing this for quite some time – when I was advising the Lords Select Committee on the Barnett Formula, John Swinney tried in giving evidence to avoid the issues that concerned the Committee but instead insisted on discussing a paper the Government had published the day before on Fiscal Autonomy in Scotland: The case for change and options for reform.  The Government’s more recent papers (such as this one, which prompted the exchanges on Tuesday) have relied heavily on work by Scott and Hughes-Hallett as their intellectual underpinning.  Particularly at issue is the ‘growth bonus’ that might arise if full fiscal autonomy were enacted.  It’s understandable that the Committee might wish to delve into the basis of such a claim, given that the Government had put it on the table as part of its response to questions about the Scotland Bill.  But this is at most right on the edges of the Committee’s terms of reference, and in any case it’s the Government’s doing, not Scott and Hughes-Hallett’s.  Given the terms of the remit and Call for Evidence, expert witnesses would be quite entitled to think that it was not an issue for discussion unless they were expressly told it was.  Scott and Hughes-Hallett appear to have become collateral damage of the Committee’s pursuit of another objective, the SNP Scottish Government.

The problem that concerns me here isn’t that members of the Committee raised the issue of Scott and Hughes-Hallett’s work on fiscal autonomy, or that they pursued their inquiries in a robust manner (though some consider they overstepped the line in doing so – including Scott himself, and the Committee’s deputy convenor).  It’s that the Committee did so without advising witnesses who were appearing before them as experts what was going to be considered.  That’s a basic courtesy to any expert witness, routinely complied with both at Westminster and in Cardiff Bay, at least in my experience.  Seeking to obtain evidence by ambush from such witnesses is harsh treatment of those who (unlike politicians, civil servants or those subject to government regulation or control) have no professional obligation to give evidence.

Giving evidence to legislative committees is a remarkably unrewarding activity for academics.  It’s a demanding and time-consuming thing to do, especially as committees normally expect a submission drafted expressly for them.  Despite that, it’s unpaid – the most one gets are travel and subsistence expenses (and that not even on the scale parliamentarians themselves usually get).  There’s no academic credit for doing it; it didn’t do anything for one’s standing under the RAE, and even with the new rules for the REF, which do emphasise ‘public engagement’, it counts for very little in practice.  People do it out of curiosity, a desire to have influence, a belief it gives them status, or a desire to improve policy – not for any other reason.

The way the Scotland Bill Committee has gone about its business on this occasion has added further levels of political contention to a complex and already-contentious situation.  Moreover, it’s blurred the line between the technical and economic aspects of the legislation it’s considering, and the political concerns that are clearly foremost in its members’ minds (a flaw it shares with the Calman Commission’s report).  In its zeal to build a case for the bill’s proposals by attacking the Scottish Government’s position, it has bludgeoned one of the few sets of critical witnesses willing to appear before it.  The bill, and the procedures surrounding it, were already complex enough.

An episode like this is unproductive in several ways.  It damages the reputation of the Parliament, particularly among expert witnesses, and may make create problems in persuading them to assist it in future.  It also means that the Committee doesn’t get the best help it could from those witnesses when they do appear before it, because they will be on the defensive.  This is because that sort of engagement calls for a pretty high level of trust, which is seriously undermined when experts are ambushed as Scott and Hughes-Hallett were.  Once damaged, that sort of trust is very hard to rebuild.

As a result, I felt I needed to have confirmation from the Committee’s convenor of the issues that would be covered during my evidence session.  While I welcome robust engagement with politicians about the issues on which I work and accept the need for flexibility about the questions that are raised by members of a committee, I also need to know what’s expected to be discussed in order to prepare to give evidence.  My attempt to do so on Thursday – only three working days before I was due to appear – produced a good deal of activity, but not much action.  Indeed, it rather seemed as if no-one had a clear idea of the purpose of the session I was due to attend and what was to be discussed at it until I pressed the issue.  Such confirmation as I’ve had has been vague, clearly incomplete and so late that it’s not been satisfactory.  As I’ve not been able to get the sort of clear indication of what would be discussed that I sought, I’ve had no option but to pull out.

The Scotland bill is a flawed piece of legislation (as was the Calman report before it), but it’s an important one.  (I’ve set out the main features of my views on it HERE and HERE.)  I would like to have helped the Parliament in working to improve it, not least in making clear that it will only be the first step in a much wider process of reviewing devolution and not the end of that process, assuming it becomes law.  I’m very sorry not to be able to assist the Committee at its coming meeting, and mean no discourtesy to the Parliament by withdrawing, but this sort of affair makes it very hard to work with it.

UPDATE, 15 January: Drew Scott has posted a comment on this post, which he says will be his only public response on this for the time being.  It’s available HERE.

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31 Comments

Filed under Calman Commission/Scotland bill, Devolution finance, Legislation, Scotland, SNP, Westminster

31 responses to “How not to do business: Holyrood’s Scotland Bill Committee

  1. Douglas McLellan

    Hi. I watched the evidence session and I have to say that Professors Drew Scott and Andrew Hughes-Hallett did not help their own case. The call for evidence clearly asks “What further changes to the powers for the Scottish Parliament not currently in the Scotland Bill would, in your view, further help to achieve the purposes of the Bill and should be considered by the UK Government for inclusion”. Which is a question that these two witnesses have answered in their own work.

    That work was then referenced by the committee but neither witness seemed able to answer questions about it. Now this may seem unfair but they could have responded in a much more calm manner about not preparing for that line of questioning and asking to return or provide written answers. After all, the issue causing the problem was either their own work or someone interpretation of their work so it should have been easy to either back up their own argument or refute someone else’s interpretation of it.

    Also, I am not surprised that there was no central plan for your appearance. The MSPs around the table will have different questions from their own perspectives and they are unlikely to share that with each other before hand. I have prepared my Chief Executive to appear before a number of Holyrood Committees and part of that prep work is going through each member and try to guess what angle they would be coming from on any given answer/position that was given. For me, that is just good prep work (including writing the submission prior to attending). And it was clear that Professors Drew Scott and Andrew Hughes-Hallett were not fully prepared.

  2. Ewan MacMurphy

    Douglas, you wouldn’t be the eponymous Liberal Democrat blogger would you?

  3. ex pat

    I watched the Committee as well and find Douglas McLellan’s remarks extraordinary.

    Wendy Alexander’s behaviour goes beyond any reason. It is of course par for her course. It cost her her Ministerial career, her leadership of the Scottish Labour Party and now she brings the entire Scottish Parliament into disrepute.

    The Committee is clearly fixed as Alan Trench sets out very clearly. The appointment of Jim Gallacher in particular makes a farce of examining a Bill based on the Calman Commission findingd which he himself wrote!

    Finally there is no doubt why Professors Hughes Hallet and Scott were not allowed to present their critique of the Scotland Bill’s financial provisions – it is devastating and unanswerable.

  4. Drew Scott

    For obvious reasons I am not going to enter into a dialogue on this matter. Save to say that the basis of our complaint is not bruised egos, or even the impoliteness of conduct by some members of the Committee. It is that our 2009 fiscal autonomy paper – which does not mention the Scotland Bill (obviously) – was put on the Committee’s papers (and web site) without our knowledge or permission, and therefore implicitly masqueraded as the evidence we submitted to that Committee on which we might be expected to be questioned. And it was clear for anyone to see that we were subject to highly detailed questioning about various conclusions and calculations presented in that paper. Categorically we did not submit that paper as evidence, nor were we at any time informed that it would be the basis on which the Committee would ask us questions. Clearly the 2009 paper was deliberately placed by officials or clerks to the Committee, and clearly it was assumed by the Committee to be the evidence on which we should be questioned – or rather interrogated.

    For the record we did not have our fiscal autonomy paper with us at the Committee. Instead we *did* have copies of the 15 pages of dedicated evidence we had prepared for the Committee specifically addressing the questions we were invited to address and had expected to be questioned about. Nor, unsurprisingly, did we have with us a copy of one of the 30+ papers we cited in the 2009 paper, our failure to give the precise page number in which a footnote used in our work was to be located became the grounds for the Convenor (and others) claiming we had failed to substantiate the evidence we had submitted to the Committee.

    All the while, of course, the 15 pages of evidence we *had* submitted was not directly mentioned or referenced by the Committee, and as far as I can detect still is not available on the Committees web pages.

    It is for others to judge whether the circumstances in which we found ourselves on Tuesday last week were fair or reasonable. To my mind there is no doubt that we were victims of a pre-meditated and carefully orchestrated “ambush”, to use Alan’s term. And it is that which has formed the substance of the letter which on Friday we submitted to the Presiding Officer. In the light of these events, my judgement is that Alan (also a critic of the Scotland Bill though no devotee of fiscal autonomy) was both very wise and highly principled to withdraw from the evidence session next week to which he’d been invited.

  5. Barontorc

    Perhaps Douglas McLellan from post#1, will revisit his comments after reading this quoted section below from Professor Drew Scott?

    “For the record we did not have our fiscal autonomy paper with us at the Committee. Instead we *did* have copies of the 15 pages of dedicated evidence we had prepared for the Committee specifically addressing the questions we were invited to address and had expected to be questioned about.”

  6. Kenneth

    I have prepared my Chief Executive to appear before a number of Holyrood Committees and part of that prep work is going through each member and try to guess what angle they would be coming from on any given answer/position that was given. For me, that is just good prep work (including writing the submission prior to attending). And it was clear that Professors Drew Scott and Andrew Hughes-Hallett were not fully prepared.

    Douglas – I’m not sure what your job is, but do you think it is fair to assume that the professors don’t each have a member of staff to “prepare” them for appearances before parliamentary committees? Do you further think it is reasonable to assume that these men are rather busy and have a large range of other potential activities on which they can spend their time, and that they therefore do not necessarily have the time or inclination to spend hours preparing for a committee appearance in the way that a politician (eg, John Swinney) would?

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  8. James Matthews

    All of which leaves us unenlightened as to the validity of the enhanced growth case for fiscal autonomy. As fiscal autonomy is one of the alternatives to the proposals in the Sccotland bill it is hard to see why its merits should not be explored by the committee. If the evidence for enhanced growth is robust and clear would the witnesses have been so reluctant to discuss it?

    Academics who work in these fields and provide the intellectual underpinning for huge political changes must expect to be treated as political protaganists as, in many case. they are.

  9. Tom Muir

    Sounds like a case for some intrepid SKY reporting James. Just what motivation do these meddling professors have for freeing us from the super soaraway success that is the UK economy?

  10. Douglas McLellan

    @Ewan MacMurphy – Yes. I always use my real name. I see no point in hiding behind a false name.

    @BaronTC – No my comment still stands. There would have been no shame in stating that they had no prepared for that line of questioning and repeated ad nauseam until the committee moved on. Instead very vague answers were given in an increasingly tetchy manner.

    @Kenneth – Every witness is a busy person. Indeed, the witnesses did highlight how much they had prepared for the committee (just not for the line of questioning that the committee was taking). However, witnesses do not need to appear or give evidence as often it can be a thankless task with hours of work, answering a mere two questions and being sent on their merry way. So each witness needs to decide what benefit can be brought by their appearance and be prepared to have all aspects of their position tested. This may (in fact often does) go beyond the evidence that the witness has prepared and presented prior to the meeting. The challenge is how to respond when questioning goes beyond that prior evidence. I just dont think that the witnesses handled that part well.

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  12. Observer

    Douglas did you actually read the posts from Mr Trench & Mr Scott? It is quite clear that this committee has been politicised & that the witnesses have not been invited to give their expert opinions but to be used as tools to attack the Scottish government.

    If you were invited to address a committee, you had prepared & submitted 15 pages of evidence for that purpose, then you would expect to be questioned on that evidence. You would NOT expect to be questioned about another paper which was not the subject of the committee proceedings, but which had been included with the committee papers without your knowledge.

    That was an ambush designed for political gain & the two professors must have been very angry indeed at their shabby treatment. In view of that I think they handled things very well.

  13. DougtheDug

    In his opening statement Prof. Drew Scott made it quite clear that he and Professor Andrew Hughes Hallett were there to give evidence on the economic implications of the Scotland Bill and not on any alternatives proposed by other parties. He said in his opening statement:

    “However, before I do so, I want to make two contextual points for the sake of clarity. First, as economists, we have focused exclusively on the economic implications of the bill’s financial provisions as set out in the accompanying command paper. In our evidence, we do not comment on any other aspects of the bill or on the political or constitutional implications of the proposed funding regime. Secondly, our evidence presents an economic analysis of the Scotland Bill’s provisions. We do not offer any commentary on the relative or absolute merits of alternative financial arrangements, including fiscal autonomy, which we have written about quite extensively. I say this for two reasons: first, as we understand it, the committee’s purpose is to examine the Scotland Bill, not alternatives to it; and, secondly, we want to alert the committee to the fact that, when we invoke comparisons either implicitly or explicitly in our evidence, our comparator is the status quo ante – in other words, what we have just now or what one might call the full Barnett model.”

    Despite this, Wendy Alexander’s first question to Professor Scott was on an alternative proposal put forward by the Scottish Government and on the validity of the figures that the Scottish Government had taken from an academic paper by Scott and Hughes Hallet and used within that proposal.

    What struck me from watching the exchange was that Wendy Alexander was not using her position as Convener of the Scotland Bill Committee to examine the content of the Scotland Bill and to compare it with the current funding arrangements in an objective fashion but as a platform to try and discredit the alternative proposed by the Scottish Government. If the committee convener regards the committee not as a forum to discuss the implications of the proposed Scotland Bill but as a forum to defend it and as a political platform to attack both the Scottish Government and their alternative proposal it throws into doubt the validity of any conclusions and findings about the Scotland Bill that come out of this committee.

    Both Professors Scott and Hughes Hallet were not treated by Wendy Alexander as experts who had given up their own time to give their views on the economic parts of the Scotland Bill but as hostile witnesses. The convener of a Holyrood committee is not required to be impartial but it would appear that Wendy Alexander regards the discrediting of alternatives to the Scotland Bill as more important than subjecting the Scotland Bill to independent and objective scrutiny.

  14. Observer

    & Douglas – you seem to be missing the major cause for concern here. The committee system is there to scrutunise legislation, or it is supposed to be.

    Who is scrutinising the Scotland Bill if the committee convener is engaging in party politics & repelling expert witnesses because they can’t rely on being treated fairly?

    Considering the contents of the Scotland Bill we should all be a tad worried about that.

  15. One point in response to James Matthews. Legislative committees (at least in the British system) are powerful creatures, but there are also serious constraints on what they can do. Members are elected politicians with many other calls on their time – plenary business, constituency duties and other committees in particular. The resources to support a committee’s work are also limited; this is a well resourced committee, with two or three clerks, and a couple of expert advisers, but that is not enough for a thorough, forensic and detailed examination of many large and complex issues. It’s certainly not enough to consider every aspect of the large number of issues thrown up by Scotland’s constitutional debates. There is also a time constraint. The Scotland Bill Committee aims to report in late February or early March, and is meeting once a week for about three hours. As I explained HERE, that deadline is so that Holyrood can vote before the bill’s committee stage starts at Westminster. In that time, it can expect to have about nine evidence-taking sessions, so about 27 hours of oral evidence.

    One of the key tasks of a legislative committee, led by its chair or convenor, is to decide how to apportion the time that’s available to it. The decision by the Scotland Bill Committee to pursue fiscal autonomy means that time is taken away from considering other issues. The question is whether that choice is the right one to make.

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  17. Jack Houston

    I sat watching the Scotland Bill Committee with my jaw virtually hitting the floor. For a major piece of “constitutional” legislation to be considered in this way amongst the people who it will most affect seems like madness to me. The insight into providing submissions to committees was gratefully received.

    If I may provoke a bit of expert analysis to answer a question which has been puzzling me since it was announced: as it will be examined by Standing Committees during its ordinary legislative progress, why is the Scottish Affairs Select Committee also holding an inquiry into it?

    • In reply to Jack Houston: the two sorts of consideration will be very different. The committee stage in the Commons won’t be by standing committee, but in a Committee of the Whole House, as it’s a constitutional bill. (The key difference is that any MP can take part in the debates and votes, not just those nominated to the standing committee as is the case for ordinary bills.) That process will, however, be like the committee stage of any other bill: detailed discussion, clause by clause, of the bill, and of amendments proposed to each clause.

      The Commons Scottish Affairs Committee’s inquiry is looking at the policy behind the bill; less formal, more wide-ranging. And of course it can take evidence from witnesses, which standing committees can’t do.

  18. Observer

    The bizarre thing about this Bill is that it is being introduced against the wishes of the minority government in Scotland.

    Given that, it is bound to be very controversial in the first place, so surely that means that there is an imperative for it to be examined objectively.

  19. DougtheDug

    Alan, could you help to clear up some of my ignorance on the interaction between the Scottish Parliament and the UK parliament on this Scottish Bill.

    As I understand it, it is a Westminster Bill which will proceed through the House of Commons and if it is successful it will be enacted as a Westminster Act of Parliament.

    What powers does the Scottish Parliament hold over this bill if any? If the Scottish Bill committee in Holyrood recommends changes to the bill is Westminster duty bound to add them or conversely if in the most extreme situation the Scottish committee and parliament reject the bill in its entirety what effect would that have on the progress of the bill through Westminster?

    • I discussed this in an earlier post on ‘The Scotland bill at Westminster and Holyrood’, available HERE. It’s subject to the Sewel convention, as it affects the powers of the Scottish Parliament and Government, and so the Parliament’s consent to it is required. In principle, such consent can relate to only particular clauses, or be subject to certain amendments being made, but I can’t recall any case where that has been tested. Certainly, there has been no case to date where Westminster legislation affecting devolved matters has been passed without such consent.

      • DougtheDug

        Thanks for the information Alan. It would appear from your links that the UK Parliament has the power to introduce any legislation in Scotland that it desires but there is a convention that it will not introduce any legislation which impinges on devolved powers without gaining the consent of the Scottish Parliament. If the Scottish Parliament desired they could block the passage of the Scotland Bill or any part of it as long as the UK parliament kept to the convention.

        One thing I did notice is that there is no mechanism for the Scottish Parliament to introduce an amendment into a particular bill in Westminster. The Scottish Parliament can give consent to Westminster legislation but it can’t initiate it.

        This means that the Scottish Parliament can approve or disapprove parts of the Scotland bill but it can’t add anything in as a parliament or ensure that any particular provision in the bill survives in its passage through Westminster. Any additional powers which the Scottish Parliament wanted in the Bill would have to be introduced as an amendment by an MP or MP’s in Westminster in the hope that it would be retained in the bill as it passed through Westminster.

  20. CWH

    Most if not all of the reporting of this incident has been about the treatment of the Professors. Little if anything has been reported about what they actually said in their evidence to the Committee which sounds like a ‘good’ result for those who do not wish any cogent criticism of the provisions of this Bill to be fully reported or explored.

  21. lapogus

    I missed Newsnight but watched the video [http://www.holyrood.tv/popup.asp?stream=http://vr-sp-archive.lbwa.verio.net/archive/110111_scotland_bill.wmv] mainly out of interest in seeing just how rude Wendy Alexander was (and she was) and I found myself following the proceedings to the end. Despite Wendy’s alternative agenda and poor manners, I thought the good professors still managed to highlight at least one serious flaw in the Scotland Bill, i.e. the risk of Scotland possessing only one or two tax levers in times of economic uncertainty. But I suspect there are other flaws which didn’t get aired, at least in part due to the time the professors had to spend rebuffing Wendy’s fiscal autonomy attack. If so, that is regrettable. I agree with CWH – the contents and apparent flaws in the Scotland Bill are dry and complex, and the media will instead focus on Wendy Alexander’s failings. (Not that they shouldn’t be also be exposed, she is a dubious career politician who has now brought the parliament into disrepute, and thus fair game).

  22. Tom Muir

    In light of what’s happened since Alan first posted this blog. I have to say that #3 Expats comment is perhaps the most succinct.

    “Finally there is no doubt why Professors Hughes Hallet and Scott were not allowed to present their critique of the Scotland Bill’s financial provisions – it is devastating and unanswerable.”

    Would it be possible for that evidence to be made available?

  23. lapogus

    Having heard Good Morning Scotland on Tuesday and read Brian Taylor’s take on this stushie, I have to say I was completely wrong to conclude that the media, or at least the BBC, would focus on Wendy’s behaviour rather than the flaws in the proposed Scotland Bill. I evidently underestimated the blatant anti-SNP bias within the BBC. It would appear that the ‘cybernats’ do appear to have a valid perspective on this issue at least.

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