Subordinate Legislation
Census (Scotland) Order 2010 (Draft)
Do members have any other comments on procedural matters?
Leave it to me to discuss that with the clerk and I will advise members on it as soon as possible.
Ms Wendy Alexander (Paisley North) (Lab)
I understand the desire for everyone to have notice, but this is the first time that most of the ordinary committee members such as me have seen the draft order and I would like time to consult other organisations. I have had a series of approaches whose validity I could not really judge until I had the chance to see the order. Notwithstanding the pressures that we are all under, a few days to consult and formulate amendments would be really helpful.
I appreciate that those are subject to affirmative procedure. As you say in your guidance, for those parts that are subject to negative procedure, a motion would have to be lodged by Friday.
To follow up Rob Gibson’s and Lewis Macdonald’s points, notwithstanding the fact that it is helpful to have until the meeting to lodge any amendments, it is not satisfactory to amend an instrument of such magnitude at a meeting. We may all choose to behave responsibly, but it would be helpful if the powers that be on all sides found a more satisfactory procedure for the next time.
I recall Donald Dewar’s fastidious interest in 1999 and 2000 in the question on religious affiliation in Scotland. It may be only once every 10 years, but we can do better.
I stress that, this morning, we are looking just at the procedural issues, not at any detail of the order. If there are any issues on which members think that it would be helpful to get clarification from the Government, they can highlight those and we can ask the Government to ensure that it provides that clarification before next Wednesday.
Members will recall that the registrar general offered to discuss some of this at the end of last year. I took that opportunity and have had detailed discussions with the registrar general since then. The critical area relates to paragraph 15 of the clerk’s note and schedule 2 to the order. Most, but not all, of the issues of interest are encompassed by the sections in italics—in other words, the parts of the order that are new and were not included in the previous census. How we handle the parts of the order that are in italics, which we can amend, will be important. As Stephen Imrie said, it is unique for a committee to be in the position of being able to make amendments to a Government order, and there are some clear choices that the committee will want to make.
The clerk’s note suggests a procedure whereby, subject to the agreement of the committee, these matters might be discussed in private. However, I understand that, as we are talking about the amendment of legislation, the standing orders permit the taking of such matters in public, in debate with the minister. From such conversation that I have had with the minister about this, I believe that he would be entirely happy to be involved in addressing the issues in that kind of formal debate. Therefore, in relation to paragraph 15 of the clerk’s note, I would like the committee to debate formally any proposed amendments to the parts of schedule 2 that are of interest to committee members and to the wider public. One or two areas of contention have already been identified. As you say, convener, we do not want to go into the detail of that today, but it seems right for the committee to arrive at its decisions in a fairly formal way, through public debate.
I am concerned that there should be some guidance from the Standards, Procedures and Public Appointments Committee about the process regarding this particular order. I do not know whether there is a precedent in how such issues were handled in the first session. Stephen Imrie says that the situation is unprecedented, so perhaps we ought to take guidance on the matter. The process rightly allows members—uniquely—to make decisions about aspects of the order, but I do not know whether we would want to set a precedent in doing so. We are talking about 10 years’ work by the registrar general. It may be our duty to take the matter to a debate in the chamber. Nevertheless, that debate would be less informed than it could be, especially if issues were raised in amendments with a minimum amount of notice and without the kind of information that would be required to consider the issues properly.
When we are making decisions about most things, we consult on them ourselves. Members having the ability to lodge amendments at this stage seems to me to be a precedent too far. I am prepared to be guided, but the Standards, Procedures and Public Appointments Committee ought to have had a say on the matter. I am concerned about that.
10:00
I will ask Stephen Imrie to talk about the technical point.
I echo part of what has been said. The process has not been satisfactory, and it needs to be seriously considered in the next 10 years. It should have included a pre-legislative scrutiny element for the Parliament so that evidence could have been taken on issues that have arisen. The Government should have dealt with that issue and allowed the committee an opportunity to do that, but it chose to proceed by way of the formal process.
My understanding is that the primary legislation that governs the census allows the Parliament to amend the order in the way that has been proposed. The procedure is unique; we have never used it before. Previously, the whole Parliament rather than a committee dealt with the census order. I am not clear whether any amendment or suspension of the standing orders is required to allow us to handle the matter. That is essentially for the Parliamentary Bureau to determine, but I think that how the process operates has been discussed with the Standards, Procedures and Public Appointments Committee clerks and lawyers. Perhaps Stephen Imrie can give us more details about that.
Yes. I would not want to comment on whether it would have been beneficial for the committee to have been able to collect evidence, as that is not a matter for me.
The guidance has been discussed in the committee office and with the Parliament’s solicitors. In addition, the Minister for Parliamentary Business’s office and Government solicitors have been informed of the matter and have proposed no changes of substance to the guidance that is in front of members. The guidance has been openly discussed with those parties.
As the convener said, the process is unprecedented. Members may recall that the Parliament decided to refer the order to a lead committee. As the deputy convener rightly said, the Parliament as a whole considered a similar draft order in 2000. It is unprecedented for such an order to have gone to a lead committee. That said, the guidance in front of members is consistent with the standing orders that relate to statutory instruments and with an interpretation of what to do where the standing orders are silent.
For clarification, I stress again that it is not for the committee to agree changes to the order; rather, it can make recommendations to the Parliament as whole, which will ultimately agree what changes it wishes to make. Unlike stage 2 amendments, which are considered and disposed of in committees by division or otherwise, in this case members can, perhaps by division, recommend amendments to the order, which the Parliament as a whole would ultimately make decisions on. The Parliament’s ability to take that unprecedented approach is a consequence of the Census Act 1920.
I agree with that point.
I have asked the Government for a note on autistic spectrum disorder, on which a number of members will have received representations in relation to paragraph 18 of schedule 2. I have also asked for a note to outline any changes from the previous order and where the Scottish order differs from that proposed for the rest of the United Kingdom so that members are clear what those points are. I hope that we will have those before next week and that they will ease some of the discussion.
If the committee agrees that a formal process is helpful, it would be useful to have your guidance as to how and when any amendments should be lodged.
That will be in 10 years’ time, so perhaps some of us will not be here then—who knows? I am sure that the lessons will be learned for the future. I suggest to members that they try to treat the matter as much like a stage 2 debate as is practicable. That means that, just as they could at a stage 2 debate, they can lodge probing amendments but not necessarily press them. That may be the way that you wish to highlight any issues that require to be clarified.
Item 2 is to highlight a rather unusual procedure for the draft Census (Scotland) Order 2010, which the committee should be dealing with next week. I invite Stephen Imrie to outline the process that we may have to go through next week, so that members are aware of it.
I thought that it would be helpful to try to give you some advice. Members asked for some procedural advice on the draft order, which I circulated to you by e-mail last night. I apologise for the late delivery of it, but only by that stage were we able to clear it internally. There is a hard copy in front of you—again, I apologise if this is the first time that you have seen it.
I will give you a synopsis of the advice. Essentially, the draft Census (Scotland) Order 2010 is unprecedented; it is a very unusual statutory instrument for the Parliament to consider. Elements of the order are subject to the negative procedure and elements are subject to the affirmative procedure. In addition—this is very unusual for a statutory instrument—parts of the order can be amended. Normally, when we consider a statutory instrument, it is a case of Parliament having to take it or leave it.
It is worth answering a question that was raised with me. The Government is able to proceed with an order that is amended only to the effect that has been agreed by the Parliament—the Government is required to take the Parliament’s amendments on board. Ultimately, it is for the Parliament as a whole to decide what amendments are made. It is for the lead committee to consider and recommend but, unlike with primary legislation at stage 2, the committee is not the final decision maker at that point. The committee recommends to the Parliament whether various amendments can be made.
You should have a copy of the draft order itself. If not, we have extra copies. The thing to point out is the text that is in italics and the text that is not in italics. The text that is in italics is subject to the affirmative procedure and can be amended. The text that is not in italics cannot be amended during the passage of the order.
As a committee, you have two decisions to make on 10 March, when the order is considered. The first is whether you wish the order to proceed in its entirety. If a member or the committee does not wish the order as a whole to proceed, or wishes to amend the text that is not in italics, they have to lodge a motion to annul—they would recommend that the order does not proceed. The guidance sets out the procedure for how to do that. I am happy to speak to any member about that separately, if that would help.
The second thing that you have to decide is whether you are content with the text in italics or whether you wish to amend it. If you want to amend that text, you should not agree to the minister’s motion that you will consider next week. As a committee, you should decide what changes to the text you want to make and set them out precisely. The guidance provides more detail on that from paragraph 15 onwards.
Should you decide to recommend to Parliament that the order as a whole should not proceed, the Parliamentary Bureau will lodge a motion that will allow for a debate in the chamber on that.
Alternatively, or additionally, if the committee decides that it wants to make changes to the text in italics, it will be for the Government to decide what course of action to take. Paragraph 16 of the guidance sets out what options are available to the Government. The Government could decide to withdraw the order; to accommodate the changes that the committee wants to make on the basis of a revised motion to be debated in the chamber; or to disagree to the committee’s recommendations and the changes that it wants to see. In the event of the last of those, it would be open to the convener, on behalf of the committee, to lodge an appropriate amendment to the motion for debate in the chamber when it gets to that stage.
I appreciate that the process that I have set out is not exactly straightforward. The situation is unprecedented. I would be happy to speak to any member between now and next Wednesday, if that would help. I will also try to answer any questions that members may have this morning.
Stephen Imrie has clarified the matter.
Rob Gibson made fair points about how the Government has chosen to progress the matter, but we are where we are, and my understanding is that if we do not deal with it timeously, the Government will not be able to meet its schedule for the production of the census in a year’s time.
I take the point that pre-legislative consultation would have been valuable, but I know that efforts have been made to consult some of those who have expressed interest in the issue in previous consultation stages.
The best and clearest way forward is to lodge and come to a view on a formal proposition in relation to the recommendations that the committee may choose to make to the Parliament. That is the approach most easily understood by others. For example, if the committee decided to recommend that one of the questions that are new and in italics be removed, it would be clear what was intended. Such clarity and certainty are what we should most seek to achieve in removing some of the vagueness and uncertainty that might surround the process.
We will advise you on timetables and suchlike as soon as possible. We do not have to come to a decision next week if there are outstanding issues that we feel need notice of amendments for consideration the following week.
I will provide a little bit of clarity on the timetable. If you seek to amend parts of the draft order that are in italics—
Subject to the convener’s discussions, it would be beneficial for the clerks to have the amendments in advance of the meeting, but you could just provide them at the meeting.
However, if you want to make changes to the parts of the order that are not in italics—which are subject to negative procedure—it would be advantageous to have notice of that in the form of, in effect, a motion to annul by Friday. Standing orders permit you to lodge such a motion at the meeting itself, but it would be beneficial to have notice by Friday that you wanted to lodge a motion that the order not be made. That requires you to lodge the relevant motion at the chamber desk. I am happy to speak to members offline about precisely how they do that.
I presume that the process has been changed from the one that was adopted in 1999. We are trying to improve on that.
How soon would we have notice of any amendments by members, even though they are allowed to lodge amendments up to the day of the meeting? It would be important to have notice.
I agree.
If members allow me to discuss the matter with the clerks, we will send an e-mail out later today with a suggested timetable for the lodging of amendments so that we can all have notice of them. That includes the minister; I am sure that it would be useful for him to know what will happen as well.
I thank members. I am sorry the process is rather complex, but I hope that we will get through it next week.
That concludes the public part of the meeting.
10:10
Meeting continued in private until 12:35.