Agenda item 1 concerns the start of our inquiry into non-Executive bills. We have with us representatives from the Parliament's non-Executive bills unit. David Cullum is head of the unit and Mark Richards is the senior legal adviser to the unit. David Cullum may say a few brief words of introduction.
As ever, I defer to my legal adviser.
We agreed that I would open. David will be able to supply a practical insight into the process, but I would like to make some introductory remarks.
There were three committee bills.
Sorry, there were three committee bills.
Before we begin questions, I remind members that the witnesses from the non-Executive bills unit cannot express political opinions; they are here to provide advice and information about how the process works. I ask members to bear that in mind in framing their questions.
None of the members present has detailed experience of working with the non-Executive bills unit, but in the corridors and the tea rooms, we hear that the team is busy and is weighed down with the volume of work. What practical difficulties does the team face?
There is certainly a perception that we are extremely busy.
Is it only a perception?
I would not like to say that we do not have any work, although I am glad that we are not as busy as we were in the final year of the previous session of Parliament, when we handled six or seven bills simultaneously. In this session, many members have come to speak to us about their ideas. Our statistics show that we have had nearly as many visits in this session as we had in the two and a half years from our establishment in the previous session. In this session, we have spent a lot of time providing background information to members. If a significant proportion of those ideas are translated into bills, we will be in trouble. However, the experience from the first session suggests that many ideas do not lead to the drafting and introduction of a bill.
Will you elaborate on what you mean by a significant proportion? What number would you classify as significant, given that you handled six or seven bills simultaneously in the final year of the previous session of Parliament? In the past two and a half years, how have staff numbers changed?
I will answer the final part of your question first. When the unit was set up in August 2000, there were three members of staff—me, an assistant clerk and an administrative assistant. Now, the team comprises me, two senior assistant clerks, an assistant clerk and an administrative assistant. We grew larger in the fourth year of the previous session, when we had an additional three staff.
Where did the additional three staff come from?
They were found for me by a combination of seconding people from within the Parliament and buying in temporary staff from outside. For example, we borrowed somebody from the Scottish Parliament information centre. Part of the problem with that is that our work involves a long learning curve. When we get staff from outside, or staff who are new to the unit, they need a lot of support and assistance.
You made a distinction between bills that are in the process and bills that are in preparation. I want to clarify under which of the stages in annex 8 you refer to the preparation of bills. Is that included in the consultation period or is it part of the post-consultation period?
The post-consultation period is when we get into the serious work of preparing instructions for a draftsman and working on drafts to convert the idea and the results of consultation into a bill that is fit for purpose, which can be introduced in the Parliament.
In addition to having four bills in that phase and four bills before Parliament, for how many other bills would you be assisting with preparation and consultation? Perhaps there is no problem with that aspect.
That very much depends on the resource implications of handling and preparing the bills. Since the beginning of May, we have considered about 35 proposals and have done research on all of them, but during that time we have been developing only two pieces of work for introduction. One of those has been introduced and the other is not far away from being introduced. The more that we do on bills that have been introduced, the fewer resources we have to do the initial development work. Experience suggests that that might tail off a bit—we might have had the first flush of new ideas from members. I suspect—and hope—that we will not get quite as many over the next 12 months as we have had in the first five or six months.
That is useful.
According to the statistics for the first session in annex 3, of the 10 proposals that were lodged after NEBU was established that led to the introduction of a member's bill, five were drafted by NEBU and five were drafted outside NEBU. In this session, there have been two proposals leading to the introduction of a member's bill, one of which NEBU drafted. Will you give us a picture of how much support work you have to give bills? I am aware that that there are support implications for bills that you do not draft.
That very much depends on the member concerned. The bill that has been introduced without our help is the Prostitution Tolerance Zones (Scotland) Bill, which is exactly the same bill as was introduced in the first session.
Did the Faculty of Advocates help with the drafting of that?
It was drafted by two members of the Faculty of Advocates. I had some—although not a lot of—involvement. I spoke to Margo MacDonald several times after she started the drafting process; I gave her some thoughts on one of the drafts and I spoke to the advocates once, but my input was fairly minimal. I had quite a few conversations with Margo MacDonald before she reached that stage, particularly during the consultation phase. She occasionally phoned me up for procedural information.
How typical was that of the five bills in the previous session that were introduced, but which you did not have a hand in drafting? Was the pattern similar?
It varied—there was no set pattern. I can take you through those five bills, if you like. We had no involvement in the Council of the Law Society of Scotland Bill.
I suppose that you would not dare.
I am trying to remember what the other bills were.
One of them was the University of St Andrews (Postgraduate Medical Degrees) Bill—a very good bill it was, too.
We gave a little assistance on that one—it was one of the ones that we drafted. In the early stages, I spoke to Tricia Marwick quite a lot about her Proportional Representation (Local Government Elections) (Scotland) Bill. She showed me her first draft of the bill, which was radically rewritten thereafter, although I had no input to the second draft or subsequently. We also had one or two conversations about procedure. That bill was more typical, in the sense that it was not resource intensive from my point of view.
Would it be fair to say that in those cases the process was not particularly resource intensive?
It was not.
I want to ask a small question on the back of that. Forgive me if it is difficult to answer. You may not have had many discussions about or much involvement in the bills that were drafted outwith NEBU, but the quality of their drafting is an important issue with which we need to concern ourselves in a longer discussion about how we arrange resources through NEBU and how those resources are focused. Are you in a position to comment on that issue, or is it a delicate area?
Perhaps I can answer the question in this way. We have just finished a tendering exercise for the members of our drafting panel. We advertised in the principal legal journals north and south of the border and received about 30 initial applications. We have ended up with a panel that is the same size as the original panel, consisting of six people. There has been only one alteration to the membership of the panel. There was widespread interest in becoming a member of the panel, but in our estimation people outside the panel do not have the skills and abilities to do the job. That is not to say that the people who are drafting externally do not have the necessary skills and experience—I do not think that any of them applied to join the panel. However, we are fishing in a very small pool for people with the skills to draft legislation competently.
That is a useful answer.
My question relates to annex 3. Why were the unsuccessful lodged proposals unsuccessful? What prevented their introduction?
They did not have 11 supporters.
It is as simple as that. Is it fair to say that the majority of your time is spent preparing to introduce bills that will not become legislation? Is that what happened in the previous session?
It is a matter of perception. In the previous session, we produced five members' bills, two of which are on the statute book. It will be easiest if I go through the other three one by one.
I accept that. In future, we want to make the best use of NEBU's time. There were 43 successful lodged proposals, of which only 16 led to introduction. Presumably, most of the work is done before introduction.
The bulk of our work is done between the end of consultation and the introduction of a bill.
So a large amount of work was done on the 43 lodged proposals.
Probably not. Members have a variety of reasons for lodging proposals. Sometimes the aim is simply to raise awareness of an issue. Currently we work under the requirement that consultation is carried out. Members do not produce many consultation exercises. We ask members to produce a first draft. If they do that, we will work with them to produce questions and to knock the exercise into a normal shape. The production of a consultation exercise seems to be a blocking point for members. It is quite a time-consuming task and many proposals stop at that point.
That is very helpful.
I will continue on that theme, because it gets to one of the core matters on which we will have to decide: prioritisation and what processes we will use to prioritise. If I understood correctly the flow chart that you provided for us and your response to Richard Baker's question, the real work begins at the end of the consultation and when instructions are given to the drafter. I am not saying that you are not working before that, but that is when the real impact on your unit begins, which suggests to me that it is the area of prioritisation with which the committee needs to concern itself. Perhaps you would like to comment on that statement.
I will start to answer that question by talking a little about the value of consultation. Because there are five of us in my unit, we are not specialists in anything, in contrast to the thousands of people in the Executive, many of whom are specialists in individual subjects. I do not know what the next person to come through my door will want to talk about, and inevitably—or invariably—I know little about the subject when we start the conversation, so consultation is vital in gathering information from experts throughout the country to inform the process and in focusing on the issues, providing information on where opposition might come from and identifying the major difficulties that we and the member might not pick up.
That was useful. I think that you are telling me that if the committee decides to have a prioritisation process that goes beyond what the corporate body already has in place, that should come after the consultation process, because it is only then that we will be able to get a feel for what the bill could be about and the possible drawbacks. Only that process can properly inform any political prioritisation process.
It is probably fair to say that, and it is also possible that it is only at that time that a member has a view of the bigger picture of many of the ideas that are being proposed.
That is very useful.
I could mention where it fits in in the legal context. When proposals for bills come in, David Cullum will often seek advice from us. In a sense, that is a relatively small part of the work because it is neatly confined to considering the proposal and advising whether it would be competent, for instance. The bulk of the legal work comes at the stage when drafting instructions are to be prepared. At that stage, the consultation will have been completed, so the member's policy will have been worked up fully and we will have something that we can use to prepare a bill. The consultation has to have been completed before we get to that stage, otherwise the member might find that a lot of changes are required to their proposals. It is inappropriate to work on the draft of a bill without having a consultation and working up the policy.
That is very useful; thank you.
We started talking about annex 5, the current non-Executive bills unit prioritisation criteria. The first point is that
We have not produced a bill that has not been given a positive certificate by the Presiding Officer.
Have you been approached with proposals that you did not think were competent?
Yes.
We have dealt with external consultation; it is a necessary stage.
We would give members some assistance with consultation, even for those bills that appear to be outwith competence. However, we would make it clear at the outset if we were convinced that the proposals were outwith competence.
Has the likelihood of legislative action been a hurdle for many bills?
It certainly seems to be an issue from time to time. I am sure that Bruce Crawford could tell you about that.
You mentioned going back to the corporate body in relation to the potential size and scope of a bill. However, it seems to me that the first three criteria mentioned in annex 5 are more to do with negotiations between NEBU and the member who is proposing the bill. Have you had to go back to the corporate body with questions about those first three criteria?
Not as such, but the initial consultations and discussions that I have with members always include at least two themes: we will comment on the competence of the proposals; and we will comment on the time that the exercise will take so that members do not expect us to produce a bill within two or three months of the first meeting. Incidentally, the time scale to turnaround is why members went on their own with a couple of the bills during the previous session.
The final paragraph of annex 5 says:
We have not gone back to the corporate body on breadth of support. I suspect that that would be an overarching issue if there were 10 pieces of work competing for an exercise. It reserves that option.
The corporate body?
Yes. However, we have gone back to the corporate body on the size and scope of bills.
Would it assist your unit if aspects of annex 5 were to be written into the standing orders? One example is consultation. Although consultation is expected, the standing orders do not specify that there has to be consultation before a bill is introduced. Would it be helpful if the standing orders were to say that consultation had to form part of the bill process?
As I said, I think that consultation is vital to the exercise. Beyond that, I cannot say. I am paid to deliver what I am told to deliver.
Would it be in order for us to ask questions about the options for prioritisation criteria, or is it too early in the process for that?
I think that it would be a bit difficult for officials to give evidence on that.
Okay.
Obviously, we may have to come back to the unit on the implications of what we propose to do, but it would not be fair to ask officials to express views on the options.
Perhaps I am trying to move things on a bit too quickly.
I have a question about work load. When a bill has completed stage 1, what involvement do you have in the amendment process at stage 2 in respect of the bills that you have drafted or those that you were not involved in drafting?
We examine the issues, instruct the draftsmen and prepare draft amendments for member's bills or bills that have been identified as necessary. We also prepare a purpose and effect note and background papers for the member, in the case of a member's bill.
Thank you both for coming this morning; it has been very helpful to set the context. I am sure that you will be happy to return later in the inquiry if we require additional information. We might also require a written submission.
I would add only that it would be wrong not to include back benchers. Although it would not be possible to have a representative group, we could ask some back benchers to give us their perspective. We could ask a few who have not been involved in the bill process and some who have been involved at different stages.
You are talking about members who have gone through the process of introducing a bill—
I mean some of those who have gone through the process and, in particular, those who have felt frustrated by the process. NEBU will be able to tell us who they are. There will be some obvious back benchers and others who, although they may be less obvious, will be more appropriate.
We can certainly look into that and see what we come up with. That might relate to bills that have gone through the whole process and we might need to consider people who are no longer members of the Parliament, such as Keith Harding, who got the Dog Fouling (Scotland) Bill through with support from NEBU.
Mike Russell was involved in the Gaelic Language (Scotland) Bill, which was considered right up to the last minute, but did not quite make it. I am sure that he will have frustrations.
Those are the obvious people. We will see whether we can come up with suggestions for our next meeting. We can consider inviting business managers and representatives of the corporate body to come to that meeting. At a subsequent meeting, we can speak to back benchers once we have had a chance to consider some names. Are members happy with that? Are there any other ideas about people from whom we might take evidence?
Would it be appropriate to hear from an organisation that has sponsored a bill? Mike Watson's Protection of Wild Mammals (Scotland) Bill was supported by an outside organisation rather than by NEBU. Perhaps we could examine how that worked, because that would give us a different perspective.
That might be possible. We can consider who has supported bills and speak to the members in charge of such bills. We will bring forward suggestions on that for our next meeting. In the meantime, we will invite business managers and representatives of the SPCB to give evidence at our next meeting.
Next
Work Programme