Part 3: Stages of Bills - special cases
3.1 This Part of the Guidance explains the special procedures applicable to Bills other than the Government “programme” Bills dealt with in Part 2. The processes for introducing a Member’s or Committee Bill are also illustrated in simplified form in Annex F and Annex G respectively.
The Non-Government Bills Unit
3.2 The Non-Government Bills Unit (NGBU) is a clerking team within the Parliament whose main role is to assist individual members seeking to introduce a Member’s Bill. All proposals for Members’ Bills are lodged with NGBU, which provides advice on the wording and on the relevant procedure. Members may also, if they wish, obtain further support from NGBU during the proposal process and beyond. This may include preparing consultation documents, analysing consultation responses, instructing the drafting of Bills, drafting accompanying documents, and providing briefing and advice as the Bill goes through the Parliament. Any member considering introducing a Member’s Bill should contact NGBU at the earliest opportunity. NGBU also assists committees, working in conjunction with the committee clerking team, in the development and passage of Committee Bills.
3.3 A Member’s Bill is a Bill introduced by an MSP who is not a member of the Scottish Government. (By convention, junior Ministers also do not introduce Members’ Bills.) A Member’s Bill may only be introduced if the member first obtains the right to do so through a process that involves lodging a draft proposal and then a final proposal.
3.4 There is no limit to the number of proposals that each member may lodge. A member cannot, however, have more than two proposals – whether draft proposals or final proposals – in progress simultaneously. A proposal continues to count towards this quota until it falls or is withdrawn, or until a Bill introduced to give effect to it is passed, falls or is withdrawn (Rule 9.14.17).
3.5 A draft proposal or a final proposal can be withdrawn at any time by the member who lodged it (Rule 9.14.16).
The draft proposal
3.6 The first formal step in securing the right to introduce a Member’s Bill is to lodge with NGBU a draft proposal for such a Bill (Rule 9.14.3). The proposal consists of the proposed short title of the Bill and a brief explanation of its proposed purposes. The draft proposal must be lodged with either—
- a consultation document seeking views on the policy objectives of the draft proposal, or
- a written statement (a “statement of reasons”) explaining why the member thinks that a case for the Bill has already been established and that consultation is unnecessary.
3.7 The draft proposal is published in the next edition of the Business Bulletin, along with information about the consultation or about where copies of the statement of reasons can be obtained.
3.8 Where the draft proposal is accompanied by a consultation document, the consultation must run for at least 12 weeks, beginning on the day the proposal is published in the Bulletin (or a specified day up to two weeks later – Rule 9.14.3(a)). Such consultation allows the member’s policy to be tested against, and informed by, stakeholder and public opinion. This usually proves valuable in refining and developing the policy and in equipping the member for the challenges involved in explaining and defending that policy during the passage of the Bill.
3.9 In some circumstances, however, the member lodging the proposal may consider consultation to be unnecessary. Such a member has the option of lodging a statement of reasons instead of a consultation document. The statement must explain why a case for the Bill has already been established by reference to specified published material (such as a report of a previous consultation exercise, a court judgement or academic research).
3.10 As soon as practicable after a draft proposal is lodged, the Parliamentary Bureau must refer it to a committee within whose remit the subject matter of the draft proposal falls (Rule 9.14.5). If the proposal is accompanied by a consultation document, the referral may be to more than one committee and is for information only.
3.11 If the proposal is accompanied by a statement of reasons, the committee to which it is referred may, within one month, determine whether the statement is adequate justification for not consulting. If the committee does not come to a view within that time, the member may proceed to lodge a final proposal (see paragraph 3.12 below). If the committee decides that it is not satisfied with the statement, the member has two months in which to lodge a consultation document. If the member does so, the draft proposal is published again in the Business Bulletin and the consultation begins from that date (Rule 9.14.7). If the member does not lodge a consultation within two months, the proposal falls (although there is nothing to prevent the same or a similar proposal being lodged immediately afterwards).
The final proposal
3.12 The next formal step is for the member to lodge with NGBU a final proposal for the Bill (Rule 9.14.8). Like the draft proposal, the final proposal is a concise description of what the proposed Bill would do, prefaced by the Bill’s proposed short title.
3.13 If the member consulted on the draft proposal, the final proposal may be lodged at any time after the consultation has closed, and must be accompanied by a summary of consultation responses (including any conclusions the member draws from those responses), together with copies of those responses. The consultation summary is published on the “Proposals for Members’ Bills” page of the Parliament website; the individual responses are deposited in the Scottish Parliament Information Centre (SPICe).
3.14 If the member did not consult, a final proposal may be lodged as soon as the committee decides it is satisfied with the statement of reasons or, if the committee has not reached a decision by the end of the one-month period, as soon as that period has ended. The final proposal must be accompanied by a statement of reasons (either the same statement that was lodged with the draft proposal or a revised version of it – Rule 9.14.9). The statement is published on the “Proposals for Members’ Bills” page.
3.15 The final proposal must be broadly similar to, but not necessarily the same as, the draft proposal (Rule 9.14.8). In other words, both the draft and final proposal must seek to promote the same overall aim but may vary in the detail of how this is to be achieved (for example, to reflect policy changes prompted by responses to the consultation exercise). The member should ensure that the wording of the final proposal is an accurate reflection of the member’s policy, as it will only be possible to introduce a Member’s Bill to “give effect to” the final proposal (as explained further below).
3.16 The final proposal is published in the first edition of the Business Bulletin after it is lodged, in each subsequent edition published during a one-month period beginning on the day the proposal is lodged, and in the first edition after that period has ended. During the one-month period, other members may notify the Chamber Desk of their support for the final proposal. (By convention, Ministers and junior Ministers do not support final proposals.) Each edition of the Bulletin in which the final proposal appears shows the list of members who have so far supported it. If the proposal has secured the level of cross-party support needed to give the member the right to introduce a Member’s Bill, the list of supporters’ names is given in bold.
The right to introduce a Member’s Bill
3.17 The member who lodged the final proposal obtains the right to introduce a Member’s Bill to give effect to that proposal only if two conditions are satisfied. The first is that, by the end of the one-month period during which supporters may add their names, at least 18 other members from at least half the parties or groups represented on the Parliamentary Bureau have done so. (Each party with five or more MSPs is entitled to be represented on the Bureau, and members of smaller parties and independent MSPs may form a group, at least five in number, for the same purpose.) The second is that the Scottish Government has not given (or has waived its right to give), during that period, an indication under Rule 9.14.13.
3.18 An indication under Rule 9.14.13 is an indication that:
- the Scottish Government will initiate legislation (which could be a Bill or a statutory instrument) to give effect to the proposal within the same session of the Parliament (i.e. the period, usually of four or five years, between general elections to the Scottish Parliament), or
- the UK Government will initiate such legislation within the same or the next session of the UK Parliament (i.e. the period between the state opening of the UK Parliament and its subsequent prorogation, usually a period of around a year; there are usually five such sessions between general elections to the House of Commons).
Any such indication (or a waiver of the right to give one) must be given in writing to the member and to the Clerk, and is published in the Business Bulletin (Rule 9.14.13). Where such an indication is given, this prevents the member obtaining a right to introduce a Member’s Bill even if the final proposal has obtained the necessary level of cross-party support.
3.19 The right to introduce a Member’s Bill can only be exercised until the first sitting day in June in the calendar year before the next Scottish Parliament general election is due to be held. A member can, exceptionally, seek the consent of the Parliamentary Bureau to introduce a Bill up until the last sitting day of September in that year (Rule 9.14.15).
3.20 If a member does not gain the right to introduce the Bill (either because the final proposal has not received the required level of cross-party support or because the Scottish Government has given an indication as described in paragraph 3.18) the proposal falls. A proposal in the same or similar terms cannot be lodged by any member during the same parliamentary session within six months of the proposal falling (Rule 9.14.12).
Introduction of Members’ Bills
3.21 A member may introduce a maximum of two Members’ Bills in any parliamentary session. This includes any Committee Bills that result from draft proposals submitted by that member (Rule 9.14.2). As with any Government Bill, the finalised text of a Member’s Bill should be submitted for a Presiding Officer statement on legislative competence. This is normally required three weeks before the proposed date of introduction. Whether or not the member (or NGBU acting on the member’s behalf) sends a pre-introduction letter to the Head of Chamber Office (see paragraph 2.8 above), advice relating to the matters set out in the bullet points under paragraph 2.10 is likely to be sent to the member by the Head of Chamber Office shortly before introduction.
3.22 By the time a final proposal is lodged, the member’s policy is expected to be reasonably well developed. A Member’s Bill should “give effect” to a final proposal (Rule 9.14.12). So a Bill which contained provisions extending substantially beyond the terms of the final proposal or which did not provide a substantial element of what was outlined in the final proposal could not be introduced. This test (of conformity between the final proposal and the eventual Bill) protects the interests of members who have supported the final proposal with a reasonable expectation of what the Bill resulting from it would be like.
3.23 On introduction, a Member’s Bill must be accompanied by the same accompanying documents as are required for a Government Bill (see paragraphs 2.14-2.23 above). A Delegated Powers Memorandum is also required immediately after introduction.
Stage 1 of Members’ Bills
3.24 Stage 1 consideration of a Member’s Bill is largely the same as that for a Government Bill (see paragraphs 2.34-2.54 above). There is, however, one important exception. The lead committee has the option, under Rule 9.14.18, of recommending to the Parliament that the general principles not be agreed to, on one of three grounds (Rule 9.14.18). The grounds are that, in the committee’s opinion:
- the consultation on the draft proposal, or the published material referred to in the statement of reasons, does not demonstrate a reasonable case for the policy objectives of the proposal or does not demonstrate that legislation is necessary to achieve those objectives;
- the Bill appears to be clearly outwith the Parliament’s legislative competence and it is unlikely to be possible to rectify this by amendment at Stages 2 and 3;
- the Bill has deficiencies of drafting that make it unfit to be passed and which are so serious that they would be difficult or impractical to resolve by amendment at Stages 2 and 3.
3.25 The aim of this procedure is to avoid the need for a lead committee to carry out a full Stage 1 inquiry or publish a Stage 1 report on the general principles of a Member’s Bill if the Bill (for one of the above three reasons) is never likely to be fit to become law. A committee considering invoking this power should, however, ensure it does not do so without first taking such advice and evidence (including from the member in charge) as it considers necessary to establish that one of the three grounds applies.
3.26 If the lead committee decides that one of the grounds applies, it is for the convener to recommend (by motion) that the general principles of the Bill not be agreed to. The motion should make clear which of the three grounds applies (in the committee’s opinion). The committee may, if it wishes, explain its decision in a short report to the Parliament. It is then for the Parliamentary Bureau to propose (in a business motion) a time for the Parliament to consider the committee’s motion. This is likely to involve a short debate in which (at least) the committee convener and the member in charge of the Bill have an opportunity to speak. If the Parliament agrees to the motion, the Bill falls. If the motion is rejected, the lead committee must consider and report on the general principles of the Bill in the normal way (Rule 9.14.19).
Participation in meetings by member proposing Member’s Bill
3.27 A member who has lodged a draft proposal for a Member’s Bill accompanied by a statement of reasons and who is also a member of the committee considering the statement cannot participate as a committee member in the committee’s consideration of the proposal (Rule 9.13A.1). This also applies where the member making the proposal is a committee substitute on the committee considering the proposal. The member may, however, participate in another capacity (for example, as a witness).
3.28 Similarly, if the member in charge of a Member’s Bill is also a member (including as a committee substitute) of a committee that is involved in scrutiny of the Bill at Stage 1, or is taking Stage 2, that member cannot participate in the relevant proceedings in the capacity of committee member. The member in charge can, however, still participate in proceedings on the Bill in another capacity – for example, as a witness before the Stage 1 committee, or as the member in charge at Stage 2 (in which capacity, the member may move and speak to amendments but not vote).
3.29 Where a member is prevented from participating in proceedings as a committee member by Rule 9.13A, another member who has been designated as a committee substitute (Rule 6.3A) or a Bill substitute (Rule 6.3B.1(b)) may participate instead.
3.30 Any committee may make a proposal for a Bill (Rule 9.15.2). The committee may initiate this (prompted, perhaps, by evidence received in the course of an inquiry, or by a petition referred to the committee). A member of the committee who wishes the committee to make a proposal should raise the matter with the convener, who can then invite the committee to decide whether to conduct an inquiry on the subject.
3.31 Alternatively, any member may submit a draft proposal for a Committee Bill to the Parliamentary Bureau (Rule 9.15.4). Members are advised to contact NGBU in the first instance for assistance with the wording of a draft proposal. This mechanism can be used where the member concerned is not a member of a committee within whose remit the Bill would fall. Such a draft proposal is not published in the Business Bulletin, but is referred by the Bureau to an appropriate committee. The committee is required to consider a draft proposal referred to it in this way (Rule 9.15.4). In doing so, the committee may (but need not) conduct an inquiry on the merits of the draft proposal before reaching a decision on whether to propose a Bill.
3.32 If a committee decides to make a proposal (whether on its own initiative or in response to a draft proposal referred to it) it does so in the form of a report to the Parliament. A report containing a proposal for a Committee Bill should set out clearly, and in reasonable detail, why a Bill is considered to be necessary and what it would contain (Rule 9.15.5). Because there is no Stage 1 report on a Committee Bill (see below), it is important that a committee developing a proposal for such a Bill takes similar evidence to the evidence it would expect to take at Stage 1 of a Bill, and otherwise consults adequately on the proposal, before finalising its report.
3.33 The report should make clear that the committee is proposing a Committee Bill under Rule 9.15. The report may, but need not, include a draft Bill (Rule 9.15.5).
3.34 Committees are advised to involve NGBU at an early stage during any inquiry on a Committee Bill proposal. NGBU’s role at this stage is primarily to help the committee to ensure that the proposal both expresses the policy of the committee and provides a suitable basis for the drafting of a Bill. To do this, a proposal must be sufficiently detailed to allow the Parliament to make a properly informed decision as to whether to support it, but not so detailed as to restrict the ability of the drafter to implement the committee’s policy in legislative terms.
3.35 Once the committee report containing the proposal has been published, the convener should lodge a motion as follows:
[Convener’s Name] on behalf of the [Name] Committee: Proposal for a [proposed short title] Bill—That the Parliament agrees to the proposal for a Committee Bill under Rule 9.15 contained in the [Name] Committee’s Nth Report, 2014 (SP Paper X).
The Bureau must allocate time in a Business Motion for consideration of the proposal (Rule 9.15.6).
3.36 If the Parliament agrees to the motion (and hence the proposal), this gives the committee convener the right to instruct the drafting of a Bill to give effect to the proposal and to introduce the Bill. In practice, NGBU (in conjunction with the committee clerks) will instruct the drafting on the convener’s behalf. The right to instruct drafting and then introduce a Committee Bill cannot be exercised until the fifth sitting day after the debate. The convener also cannot proceed to do that if the Scottish Government has indicated before that day:
- that it will initiate legislation (which could be a Bill or a statutory instrument) to give effect to the proposal within the same session of the Parliament, or
- that the UK Government will initiate such legislation within the same or the next session of the UK Parliament (Rule 9.15.7).
This is equivalent to Rule 9.14.13 in relation to Members’ Bills discussed at paragraph 3.17 above.
3.37 A Committee Bill must give effect to the proposal, so can be introduced only if it is broadly consistent with the terms of the proposal that was agreed to by the Parliament. If, in the course of finalising the Bill, the Committee decides not to include in the Bill a substantial element of the proposal, or to include in the Bill substantial provisions that were not mentioned in the proposal, it would need to obtain the Parliament’s agreement to a further report containing a revised proposal. It is partly to avoid any such difficulties that committees are advised to involve NGBU from the earliest stage in the preparation of any proposal. If the proposal is agreed to, NGBU will provide support to the member in charge of the Bill during its passage.
3.38 A Committee Bill is introduced by the convener of the committee which made the proposal (who need not be the same member as the one who was convener when the proposal was made). That convener then becomes the member in charge of the Bill; but if the committee which made the proposal ceases to exist, the convener of another committee within whose remit the subject matter of the Bill falls becomes the member in charge of the Bill. The convener can designate another member as member in charge, but only if that other member is a member of the committee (Rules 9.2A.3 and 9.2A.5).
3.39 Explanatory Notes, a Financial Memorandum and a statement on legislative competence from the convener and from the Presiding Officer are required. A Policy Memorandum is not required, but may still be provided. A committee may decide not to prepare a Policy Memorandum if it considers that the report proposing the Bill is sufficient to explain the Bill’s policy objectives and how they were developed. If the Bill contains any provision conferring power to make subordinate legislation or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, then a Delegated Powers Memorandum is required.
3.40 At Stage 1, a Committee Bill is not referred to a lead committee for a report on its general principles (Rule 9.15.8). The Finance Committee will consider and report on the Financial Memorandum in the normal way – unless it was the Finance Committee which proposed the Bill. Similarly the DPLR Committee must report on any provisions conferring power to make subordinate legislation, or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, unless it was that Committee which proposed the Bill. Once those committees have reported to the Parliament, the Stage 1 debate takes place in the normal way.
3.41 The MSPs who were members of the committee that developed the proposal for the Bill cannot also participate as members of any committee involved in scrutinising the Bill at Stage 1, or as members of the committee taking Stage 2. Where the Committee Bill originated from a draft proposal submitted by an individual member, the same restriction applies to that member (Rule 9.13A.2(c)). This does not prevent any of the members in question from participating in the relevant committee proceedings in another capacity – for example, as a witness before a Stage 1 committee or as the member in charge of the Bill at Stage 2.
3.42 A Budget Bill is a Bill consistent with the description of a Budget Act, as defined in section 29(3) of the Public Finance and Accountability (Scotland) Act 2000. Budget Acts are Acts authorising the use of resources by the Scottish Government, authorising payments out of the Scottish Consolidated Fund, enabling sums otherwise payable into the Fund to be applied for other purposes, and governing maximum amounts of expenditure and borrowing by certain statutory bodies.
3.43 A Budget Bill may be introduced only by a member of the Scottish Government, and is accompanied only by the two mandatory statements on legislative competence (Rule 9.16.2). It is referred immediately for a Stage 1 debate, without the need for a Stage 1 report. If it contains provisions conferring power to make subordinate legislation, or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, a memorandum on delegated powers will be required and it will be considered by the DPLR Committee under Rule 9.6.2, but that Committee is only required to report on it before Stage 3 (Rule 9.16.3).
3.44 Stage 2 of a Budget Bill is taken by the Finance Committee. At all Stages, amendments may be lodged and moved only by a member of the Government or junior Minister (Rule 9.16.6). Otherwise, the procedures at amending Stages are the same as for other Government Bills.
3.45 Budget Bills are subject to an accelerated timescale. Stage 3 must be completed not later than 30 days after introduction (although that Stage cannot begin until 20 days after introduction) (Rule 9.16.5). The normal rules on intervals between Stages do not apply (Rule 9.16.4).
3.46 If a Budget Bill is dependent on the Parliament passing a particular Scottish rate resolution (a resolution under section 80C of the 1998 Act, as inserted by section 25 of the 2012 Act, to set the Scottish rate of income tax), Stage 3 proceedings cannot take place unless the Parliament has agreed to the motion for that resolution (Rule 9.16.7). Where amendments to a Budget Bill have been lodged, the Bill is treated as dependent only on the passing of a Scottish rate resolution that reflects the content of those amendments (Rule 9.16.7A).
3.47 These Rules reflect the fact that there is likely to be considerable interdependence between the Scottish rate resolution and the Budget Bill. Where a motion for such a resolution is rejected, the Bill will not automatically fall. The suspension of Bill proceedings if a motion for a Scottish rate resolution is rejected will enable the lodging of a fresh motion, and of amendments to the Bill to reflect this. It is possible that failure to persuade the Parliament to agree to the motion for a resolution would mean that Stage 3 is not completed before the expiry of 30 days after the Bill’s introduction. If a Budget Bill does fall for that reason, or is rejected for any other reason, another Bill in the same or similar terms may be introduced immediately afterwards (Rule 9.16.8).
3.48 The special rules applicable to Budget Bills reflect the convention that the Government has a right of veto in relation to the Parliament’s budgetary decision-making. However, the Budget Bill itself is only the final stage in the annual budget scrutiny process. Other stages of that process, which involve reports by the Finance Committee and debates in the Parliament, provide subject committees and the Parliament as a whole with a pre-legislative opportunity to comment on the Government’s budgetary plans for the coming financial year.
Scottish Law Commission Bills
3.49 A Scottish Law Commission Bill (“SLC Bill”) is a Bill (not necessarily a Government Bill) which implements all or part of a report of the Scottish Law Commission (including a joint report with the Law Commission for England and Wales), and is not a Consolidation Bill, Codification Bill, Statute Law Repeals Bill or Statute Law Revision Bill. An SLC Bill must also comply with criteria determined by the Presiding Officer (Rule 9.17A.1). These criteria were published in the Business Bulletin No. 93/2013, Thursday 6 June 2013. To comply, a Bill must be a Bill within the legislative competence of the Scottish Parliament—
a) where there is a wide degree of consensus amongst key stakeholders about the need for reform and the approach recommended;
b) which does not relate directly to criminal law reform;
c) which does not have significant financial implications;
d) which does not have significant European Convention on Human Rights (ECHR) implications; and
e) where the Scottish Government is not planning wider work in that particular subject area.
3.50 The starting point for deciding whether a Bill has “significant financial implications” is to consider the financial implications for the Scottish Consolidated Fund. If a financial resolution would be required, it is unlikely the Bill would be suitable for designation as an SLC Bill. However, the decision is not the same as that under Rule 9.12 on a financial resolution (see paragraphs 2.111-2.143 above), and the financial implications should be considered more widely.
3.51 After introduction, an SLC Bill is referred to a lead committee in the normal way (by the Parliamentary Bureau), but is normally referred to the DPLR Committee (which has the scrutiny of all such Bills within its remit – Rule 6.11.1(g)). This is intended to reflect the fact that Bills which comply with the criteria above may be regarded as comparatively technical and uncontroversial reforms to the law. Members and officials of the Scottish Law Commission are likely to be key witnesses during Stage 1 scrutiny.
3.52 Where the DPLR Committee has begun to consider, but has not yet reported on, the general principles of an SLC Bill, and that Committee considers that the Bill does not comply with any of the criteria determined by the Presiding Officer, the Committee must inform the Parliamentary Bureau (Rule 9.17A.3). The Bureau may decide to propose by motion to the Parliament that another committee is designated as lead committee. This may arise, for example, where it becomes clear during the DPLR Committee’s consideration of the Bill that the Bill has not generated a wide degree of consensus amongst key stakeholders. In this case it may be thought preferable for the subject committee within whose remit the subject matter of the Bill falls to consider the Bill. If the Parliament agrees to such a motion, the new lead committee must consider the general principles of the Bill afresh. It may take into account any evidence already gathered and views submitted to it by the DPLR Committee.
3.53 If the DPLR Committee has considered an SLC Bill at Stage 2, and the Bill has been amended to insert or substantially alter provisions conferring power to make subordinate legislation, or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, the DPLR Committee is not required to consider and report on those provisions (Rule 9.17A.4). The member in charge of the Bill is still, however, required to lodge a revised or supplementary delegated powers memorandum.
3.54 At Stages 2 and 3, there is nothing to prevent amendments being lodged or moved that would cause a Bill introduced as an SLC Bill to cease to be such a Bill (e.g. amendments proposing to reform aspects of the criminal law) – by contrast with the situation for Consolidation Bills (see paragraph 3.62 below).
3.55 Where the statutory basis of the law in a particular area is scattered among a wide range of Acts, or where those Acts have been heavily amended, it may be appropriate to introduce a Consolidation Bill to re-enact the existing provisions in a more logical and coherent form. Such Bills are usually prepared by the Government in conjunction with the Scottish Law Commission (but are not classed as “SLC Bills”).
3.56 A Consolidation Bill may not contain substantial new provisions, nor make substantial changes to the existing law. It may, however, make various minor amendments to the law (particularly to give effect to Scottish Law Commission recommendations) as well as simply re-stating it (Rule 9.18.1). Such recommendations may, if they relate to aspects of Scots law identical or similar to the law in other parts of Great Britain, be made jointly by the Scottish Law Commission and the Law Commission of England and Wales.
3.57 The only accompanying documents required for a Consolidation Bill are statements on legislative competence by the member in charge and by the Presiding Officer, plus tables of derivations and destinations. These tables show the connections between the provisions of the Bill and the equivalent provisions of existing statute law which are restated. The table of derivations follows the order of the Bill, while the table of destinations follows the chronological order of the restated statutes (listed by year and chapter/asp number). If a provision giving effect to a Law Commission recommendation charges expenditure on the Scottish Consolidated Fund, an Auditor General’s Report is also required (Rule 9.18.2).
3.58 Once introduced, the Bureau may propose by motion that the Parliament refers the Bill to a Consolidation Committee to be established for the purpose of considering the Bill. Alternatively, the Bureau may propose that the Parliament refers the Bill to the DPLR Committee to consider the Bill.
3.59 If the Bureau proposes the establishment of a Consolidation Committee, it should have regard to the subject matter of the Bill and, where possible, ensure that at least one member of the Committee is a member of a subject committee to whose remit the Bill is relevant (Rule 9.18.4). The remit of a Consolidation Committee is limited to consideration of the Bill in the terms set out in the Rules, and it is established only for the duration of the Bill – that is, until the Bill has received Royal Assent, falls or is withdrawn. In other respects, a Consolidation Committee is subject to the same Rules as other committees of the Parliament.
3.60 The role of the Consolidation Committee or DPLR Committee at Stage 1 is more restricted than that of a lead committee. Rather than considering the general principles of the Bill, the committee is required to report only on whether the Bill should proceed as a Consolidation Bill. The question is not whether the committee approves of the law that the Bill consolidates, but only whether it approves of that law being consolidated.
3.61 The motion which is the subject of the Stage 1 decision is that the Parliament agrees that the Bill should proceed as a Consolidation Bill. As with any other Stage 1 motion, that motion may be amended (although, as with other Stage 1 motions, amendments which would cast doubt on the outcome of the amended motion will not be selected). There is normally no debate on the motion, although exceptions may be made (if, for example, the committee has raised serious doubts in its report about the rationale for, or the scope of, the consolidation exercise). If the Parliament does not agree to the motion, the Bill falls (Rule 9.18.5).
3.62 If the Parliament agrees that the Bill should proceed as a Consolidation Bill, Stage 2 is considered by the Consolidation Committee or by the DPLR Committee. The ordinary rules on admissibility (other than the prohibition on “wrecking” amendments – see paragraphs 4.22 and 4.23 below) apply to amendments to a Consolidation Bill at Stage 2 or Stage 3 (Rule 9.18.8). In addition, amendments are inadmissible if they would result in the Bill no longer falling within the definition of a Consolidation Bill in Rule 9.18.1. Any amendment that would cause the Bill to make substantial new provision in the area of the law with which it deals is therefore inadmissible. Amendments may, however, propose changes to how the Bill restates the law and how it gives effect to any Scottish Law Commission recommendations.
3.63 At Stage 3, there is a presumption that there will be no debate on the motion that the Bill be passed, although again exceptions may be made (Rule 9.18.7).
3.64 A Codification Bill restates both statute law and common law (whereas a Consolidation Bill deals only with statute law). Such Bills are subject to the same requirements in relation to accompanying documents and the same procedures, with appropriate modification, as Consolidation Bills. The committee established to consider the Bill would be a Codification Committee (Rule 9.18A.2). The option to refer the Bill to the DPLR Committee does not exist for Codification Bills.
3.65 The motion which is the subject of the Stage 1 decision is that the Parliament agrees that the Bill should proceed as a Codification Bill. An amendment to such a Bill is inadmissible if it would cause the Bill to cease to be a Codification Bill.
Statute Law Repeals and Statute Law Revision Bills
3.66 Statute Law Repeals and Statute Law Revision Bills are also intended to tidy up the “statute book”, mainly by repealing spent enactments or enactments no longer in force. In the case of a Statute Law Revision Bill, this involves re-enacting those provisions in particular statutes that still have application while repealing the remainder of them.
3.67 The Rules applicable to Consolidation Bills also apply to these Bills, with appropriate modifications. The committees established to consider such Bills are known as “Statute Law Repeals committees” and “Statute Law Revision committees”. Again, the option to propose that the Bill be referred to the DPLR Committee does not exist for these Bills. Tables of derivations and destinations are not required.
3.68 At Stage 1, the motion is that the Parliament agrees that the statute law which is repealed/revised in the relevant Bill should be repealed/revised. Amendments to a Statute Law Repeals Bill must not cause it to cease to be a Statute Law Repeals Bill. For example, an amendment proposing the inclusion in the Bill of the repeal of an enactment which is not spent or which (while spent) does not flow from a Scottish Law Commission recommendation would be inadmissible. Similarly, amendments to a Statute Law Revision Bill may vary the extent of the repeals made by the Bill (but not by adding repeals of provisions still in force or which are still necessary), and may also vary the way in which the Bill re-enacts provisions of Acts which are otherwise spent.
3.69 An Emergency Bill is a Government Bill that needs to be enacted more rapidly than the normal timetable allows - for example, to amend the law in response to a recent court judgement which has exposed a loophole or problem of interpretation in an existing enactment. Such a Bill must first be introduced as a Government Bill and becomes an Emergency Bill if the Parliament, on a motion by a Minister (or junior Minister) agrees to treat it as such (Rule 9.21.1). Unless the Parliament agrees (under Rule 9.3.6) to waive the requirement, an Emergency Bill must be introduced with the same accompanying documents as any other Government Bill.
3.70 Rule 9.21.2 provides that Stages 1 to 3 of an Emergency Bill are taken on the same day unless the Parliament agrees to a motion by the Parliamentary Bureau proposing an alternative timescale. The Bureau is required to propose, by motion, a timetable for the various stages. This does not affect the power to adjourn Stage 3 under Rule 9.8.5C or refer the Bill back for further Stage 2 consideration (Rule 9.21.3).
3.71 The Bill is referred immediately to the Parliament to consider the general principles. There is no committee consideration and report on the general principles. Stage 2 of an Emergency Bill must be taken by a Committee of the Whole Parliament (i.e. all MSPs meeting in the Chamber, but operating under committee procedure, and with the Presiding Officer acting as convener). If the Bill contains provisions conferring power to make subordinate legislation, or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, or is amended at Stage 2 to insert or substantially alter such powers, the Bill is not required to be considered by the DPLR Committee.
3.72 Emergency Bills may be amended. The Presiding Officer may determine a time by which amendments must be lodged. For example, if Stage 1 of an Emergency Bill finished at 11 am and Stage 2 was due to start at 2 pm that day, a Stage 2 deadline of 1 pm might be set. This allows time (albeit very limited) both for members to lodge amendments and for a Marshalled List and groupings to be prepared and made available to members. Manuscript amendments could still be lodged after 1 pm but would be subject to the normal test for manuscript amendments set out in Rule 9.10.6. If no determination about the deadline for lodging is made by the Presiding Officer, the normal notice periods apply (which in practice is likely to mean that all amendments would be manuscript amendments).