Procedures Committee, 03 Apr 2001

Meeting date: Tuesday, April 3, 2001

Official Report 232KB pdf

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Standing Orders

Andrew Mylne joins us for item 3. Andrew is the convener of the group that was working on the subject of standing orders and which has produced the substantial document that we have before us.

Andrew, please take us through the material and raise with us anything that you think is important.

There are a number of items in relation to this matter. Like Bill Thomson, I apologise for contributing to the volume of paperwork that members of the committee have had to plough through.

I hope that most of the paperwork is reasonably self-explanatory. The most substantial element is the paper on financial resolutions, which, as you indicated, was produced by a working group that I chaired. We took the opportunity to try to tidy up a number of minor problems that we had identified with chapter 9 of the standing orders, which have knock-on consequences in chapter 9A.

The paper on those problems is quite lengthy as we were concerned to ensure that the committee had an adequate explanation of any change that is being made to standing orders, even though the consequences of most of the proposed changes are, we hope, extremely small and should not have a significant impact on the way in which procedures operate in practice. The changes are intended to clarify ambiguities in the standing orders and to make the standing orders clearer. I am more than happy to deal with any points that arise from any of the papers.

Paper 3A concerns minor changes to chapters 9 and 9A of standing orders. I would like to clarify three points.

I have a general question. Many minor changes are proposed in the paper. Who suggested them? Did clerks or members flag up the problems?

In most instances, the proposals arose from the clerking directorate and concern occasions when, in applying standing orders during the past 18 months, we have discovered some difficulty in interpreting the rules clearly or applying them consistently.

Paragraph 37 on page 6 of the paper suggests that rule 9.6.4 of the standing orders

"should specify that only the member-in-charge can lodge the Stage 1 motion."

As the paper suggests that there should, if necessary, be a designated member to substitute for the member in charge, would it be appropriate—if the occasion arose—to allow the designated member to lodge the stage 1 motion?

I think so. As you say, rightly, there are two related proposals. We want to clarify what constitutes the member in charge. We propose that the member in charge should be the member who introduced the bill or any other member who is designated by the member in charge. Once that has been established, any references elsewhere in the standing orders to the member in charge can refer to either member. That would apply in this case, as elsewhere.

I see.

I am fairly sure that I understand what is meant in paragraphs 65 and 66 of the paper, but the standing order amendment is not entirely clear. Is the purpose of the change not to refer any dispute on whether a question is admissible to the Presiding Officer, but to give conveners that power explicitly at stage 2?

Yes. Under rule 9.10.4 of the standing orders, the convener at stage 2 or the Presiding Officer at stage 3 determines whether amendments to bills are admissible. As the paper explains, it is impossible for the Presiding Officer and conveners, at stage 2 in particular, to make explicit decisions on every amendment that has been lodged. I am particularly conscious of that since I worked rather late last night on many amendments that were lodged quite late. We were not in a position until the evening to address any issues of admissibility that might have arisen and the amendments had to be in print this morning.

To be practical, we have interpreted the existing rule in such a way that we take to a convener or to the Presiding Officer difficult, borderline decisions or any decisions in which there is a suggestion that a member might not be happy with the clerks' initial advice. For the practical reasons that I have outlined, we do not do so in every case.

Do you mean that you take such decisions to the convener at stage 2 and to the Presiding Officer at stage 3?

Yes. There is never any uncertainty as to who should make a decision.

A possible reading of that is that the Presiding Officer is given the role of resolving any dispute. That would be burdensome to the Presiding Officer.

I apologise if that is unclear. The rules are drafted in such a way—and it should always be the case—that an identified individual should always take the decision. At stage 2, the convener of the committee to which the bill has been referred takes the decisions. The Presiding Officer takes the decisions at stage 3.

That is as I understood the situation.

Paragraphs 72 and 73 concern a situation in which the Executive can, in effect, pre-empt a bill by indicating that it will introduce an Executive bill. Is there any intention to introduce a time scale within which the Executive would be expected to act? If the Executive did not act, would the issue then be referred to the committee? Concern has been expressed that the Executive could prevent a committee bill from progressing simply by indicating an intention to introduce a bill, but that the Executive might never get round to introducing the bill.

I am conscious of that. I was clerk to a committee that made a proposal for a committee bill.

When the paper was being prepared, my view was that any proposal for a time scale would involve substantial change to the standing orders. That would not have been within the scope of the paper, which is about tidying-up changes. If the committee were interested in any proposals to impose a time limit, I would be more than happy to produce a paper outlining the appropriate options. However, the paper that is before the committee today simply clarifies the existing arrangements.

I understand that. We should consider the matter separately, if indeed we want to progress it at all; we will discuss that when we come to our forward work programme.

I strongly support the convener's comments. There is always the danger that an Executive might fend off members' bills and committee bills by promising to introduce legislation, even though it might have only some vague intention to fulfil that promise. That would be an excellent means of achieving inaction, which is often the Executive's aim, and the issue should be pursued in future.

The paper focuses on minor amendments. As that is not a minor matter, it is not appropriate to proceed with it at this point.

Do you intend to accept Andrew Mylne's offer to produce a paper?

We will return to that question when we consider relevant and cognate matters. I do not think that we will commission a paper on the basis of this morning's discussion, but the clerks will record that we want to return to the issue when we next discuss our forward work programme.

In connection with rule 9.6.2, paragraph 33 of the paper says:

"The rule should continue to require"

the Subordinate Legislation Committee

"to report on all subordinate legislation-making provisions, but give it discretion whether also to report on any ‘other delegated powers'."

How is such discretion exercised? If subordinate legislation is referred automatically to the Subordinate Legislation Committee and delegated powers are not, who decides whether a delegated power should be sent to the committee?

Under the slightly adjusted rules, any bill that contains a provision to confer a subordinate legislation-making power would be referred to the Subordinate Legislation Committee. The committee could then examine all the provisions in the bill that gave rise to the referral, as well as other provisions that confer other delegated powers.

Part of the reason for adjusting the rules is that it is difficult to establish exactly what provisions in a bill confer other delegated powers. As we are dealing with a matter of degree, the Subordinate Legislation Committee must decide which of the bill's provisions fall into that category. To assist that process, the committee would have the normal legal advice that it relies on in its work; however, establishing the nature and purpose of any provision over which there is doubt could form part of the committee's inquiry. The only limitation is that if a bill contained no subordinate legislation-making powers in the first place, it would not be referred to the committee at all under this rule.

How could the Subordinate Legislation Committee get to consider a bill that contains no subordinate legislation-making powers but which contains delegated powers?

Such a bill would not be referred to the Subordinate Legislation Committee under this rule. However, the Subordinate Legislation Committee's remit was changed—on the recommendation of this committee—a number of months ago. The final element in that remit allows the Subordinate Legislation Committee to consider—in any bill, whether or not it has been referred under rule 9.6.2—other delegated power provisions, with a view to considering whether they ought to be full subordinate legislation-making provisions. The committee therefore has some input, even when a bill has not been formally referred.

Are you saying that, if a bill does not have subordinate legislation but the Subordinate Legislation Committee thinks that the bill has delegated powers, it can ask to see it?

We are talking about bills that have been introduced. Although a bill has not been formally referred to the Subordinate Legislation Committee, the committee is still entitled to consider it, under its remit.

If the Subordinate Legislation Committee is reading through a subordinate legislation bill and realises that the bill confers delegated powers that the committee would wish to consider, the committee will see that as it scrutinises the legislation. However, it will not see it if it does not scrutinise the legislation. Somebody would have to bring it to the committee's attention.

As I have outlined, the remit gives the Subordinate Legislation Committee the power, in principle, to consider bills that are not formally referred to it. I suppose that it is an administrative matter for the committee to ensure that it is alert to issues that it might want to consider. I suspect that that is not really a matter for the standing orders. I am afraid that I do not know in great detail how the Subordinate Legislation Committee would go about that task, but I am sure that the committee's legal adviser would be able to help.

The legal adviser would go through every bill scrupulously, but I do not think that an adviser would go through a bill that had not been referred to the committee.

We are asked on page 14 of paper 3A to agree to the changes to the standing orders that have been set out in the annexe, which is on pages 16 to 21. Do members agree with those changes?

Members indicated agreement.

We move now to paper 3B on financial resolutions. Members will see that Mr Mylne was the chamber office chair of the working group—I got that slightly wrong at the beginning.

I have with me Alison Coull, who was also on the working group and who drafted the revised changes to standing orders that members have before them. Although this matter affects only one rule in chapter 9, members will see from paper 3B that we spent some time on it. It is not easy stuff. Between us, I hope that Alison and I will be able to answer any questions.

I have a question about paragraphs 16 and 17, which is based on the observation in paragraph 17 that a financial resolution would not be required for a bill that covered payments

"between private individuals or bodies."

Would a financial resolution similarly not be required for a bill that imposed obligations or entitlements on local authorities if the authorities were able fully to recover the costs of their operations through charging?

I think that such cases would not be covered. Alison Coull will correct me if I am wrong, but I think that there is provision for a form of local taxation. We have tried to avoid the potential confusion between that sort of taxation and the term that was included in the standing order. The suggestion under the revised rule is that local taxation of that sort, because it does not involve payments directly in and out of the Scottish consolidated fund, would not be covered.

Such cases would not require a financial resolution?

They would not require a financial resolution and would not be picked up by this rule.

That reflects the position at Westminster, where local taxation does not normally require the Westminster equivalent of a financial resolution. There was some confusion with the rule because of the reference to tax and it might have been thought that local taxation was included.

If someone introduced a bill that gave local authorities duties that would not be covered fully by local charges, but would require an Executive contribution through revenue support grant, I presume that that would require a financial resolution because the Executive would require to signify its willingness to pick up that cost. Is that correct?

I think so. In such cases I am slightly cautious about giving definite answers—we must always examine what is in front of us at a certain stage of a bill. It is difficult to give a definitive answer in response to an abstract example.

It is a difficult area.

I want to explore the subject of amendments that have financial consequences. Let us take student funding as an example. If the Opposition wants students to receive funding in a different way to that which is proposed by the Executive—which I believe was the political position—is it allowed to lodge an amendment that has financial implications? If such an amendment were agreed to because of misadventure, such as Executive absenteeism, would the financial resolution that accompanied the bill have to be amended?

I have not seen the small print, but I understand that the Executive has lodged several last minute stage 2 amendments to the Regulation of Care (Scotland) Bill, which introduce the subjects of adoption and fostering. I presume that those amendments would involve considerable cost. How would that affect the financial resolution? We start with a financial resolution that is attached to a bill, yet there might be significant amendments to the bill that would have financial implications. In that case, what would happen to the financial resolution, which may have become pretty irrelevant?

We check whether a bill, in the form that it is introduced, requires a financial resolution. The basic position that we were trying to achieve with the revised rule was one in which the protection that the rule afforded the Executive's control over the purse strings would be maintained throughout the passage of the bill. The rule is intended to ensure that, if a bill starts off without a financial resolution because of the form in which that bill is introduced, any amendment that would change that position—so that had the bill been introduced in that form it would have required a financial resolution—cannot be moved until a resolution has been provided. Similarly, if there is a financial resolution, amendments can be moved only if they are in the scope of that resolution. In the example that Mr Gorrie gave, we would have to consider the terms of the resolution.

It is a matter for the Executive to draft the resolutions according to its interests and priorities. To date, every motion on a financial resolution has been couched in general terms. In other words, although it is not a blank cheque, the financial resolution provides an assurance that the costs of the bill will be met. That is not the only way to draft such motions; they can be drafted to provide cover only for the form in which the bill is introduced. The more tightly drafted the motion is, the easier it is for any amendments to the bill to extend beyond the scope of the financial resolution. In such cases we would examine the amendment closely together with the motion. However, so far, the Executive has drafted resolutions in broad terms.

There was a good example in the debate on the Transport (Scotland) Bill. The Minister for Transport and the Environment lodged an amendment that would create a national body. That would clearly have had financial implications and I remember challenging whether that would sit with the financial resolution. The minister's response was that the resolution was so general that it could accommodate that—she did not say that it could accommodate virtually anything, but she might as well have. It will always be in the interests of the Executive to ensure that it can amend bills, even if the amendments have financial implications. It is probable that Opposition amendments would also not be challengeable in that respect. If Opposition parties are concerned that amendments could be challenged on that ground, they should examine more closely the financial resolution before it is voted upon.

I presume that it is possible to amend a financial resolution. I know that we have voted against them sometimes, but I do not remember whether we have amended any. Is it possible to lodge a motion to amend a financial resolution?

I will have to check that.

I would adjourn the meeting for a coffee break, but we do not have any coffee. We will next time.

We will come back to the committee on the question of amending financial resolutions.

Several members are pursuing the same point. For example, there are major issues with measures in the Housing (Scotland) Bill, such as mass stock transfer and extending to tenants of housing associations the right to buy. Those measures are politically contentious and there might well be amendments lodged by various sources that could radically alter them. I presume that that would radically alter the financial effect of the bill. We would not want to limit members' rights to challenge the basic ideas of the bill or their right to amend them quite distinctly. It would be unfortunate if the Executive were able to say that, because the financial resolution had been passed, amendments that altered the financial effect of the bill would not be allowed. That would be an unhappy situation.

Has Alison Coull found the answer?

There is nothing in rule 9.12 of the standing orders to say that the financial resolution cannot be amended. Having said that, only a member of the Scottish Executive can move a motion for a financial resolution, so there is some uncertainty. We will come back to the committee on that point.

Will you reprise for us the procedure for a financial resolution? Those resolutions are lodged at stage 1 to indicate that the Executive is prepared to meet the costs, otherwise there would be no point in continuing with the bill. Is that correct?

Yes. The financial resolution is normally debated at the same time as the stage 1 debate because there is no point agreeing to the general principles of a bill if the Executive will not fund the bill.

The financial resolution does not come before the Parliament again at any stage. The decision at stage 1 is final. The resolution would fall only if the bill was not passed. Is that correct?

Once the financial resolution has been agreed, that is it.

We have opened up an interesting area here. It is conceivable that legitimate policy amendments could be constrained by the financial resolution. We would like to know whether a financial resolution can be amended or challenged. The general position is likely to be that the Executive is unlikely to tie its own hands and that that gives the Opposition parties or individual members plenty of scope, but it is an area of potential difficulty. I am not sure whether we should try to resolve it in the committee, but we certainly need to examine the situation.

Bill Thomson helped to clarify the current position. The standing orders specify which motions cannot be amended and financial resolutions are not in that category. Therefore, although there is a restriction in that only the Executive can lodge or move a motion for a financial resolution, the normal presumption that any member can lodge an amendment to it would seem to apply.

That is a good example. I will lead on from it. I am not entirely sure what the motivation or pressure for reform of the rules is—I asked about that earlier. One motivation, I know, is commented on in paragraph 35 of paper 3B, which talks about the proposed change to rule 9.6.3. It says:

"The first change to the Rules … is to add a requirement … that the lead committee should report on the Bill's Financial Memorandum"

and that that is to "address the problem identified" by and

"endorsed by the Finance Committee."

That problem gets only a small mention in the paper, but it is crucial. I am no longer a member of the Finance Committee, but I was. Financial memorandums have given the Finance Committee a great deal of problems throughout the first two years of the Parliament because—as has been highlighted—those memorandums are broadly drafted. The Finance Committee felt that it was being asked to rubber-stamp financial resolutions without giving them the scrutiny that they might deserve. It felt that the lead committee on a bill should take a far greater role in examining the financial implications of any expenditure under a bill, but that the Finance Committee should still examine the mechanism by which that expenditure would be achieved and also, as the paper says, retain the ability to examine the expenditure as well as giving that responsibility to the lead committee.

I have gone through the paper in detail again and, for the most part, I agree with it. I can see that there is a lot of work being done on the matter. I am still unsure as to whether we will get further detail in the financial memorandums or the financial resolutions. If there was further detail in the financial memorandums, that would close the loophole by which amendments could be lodged at a later stage. At the moment, the financial memorandums and resolutions are broadly drafted. There is therefore huge scope for lodging amendments at a later stage of a bill's consideration. The Finance Committee said that it was unhappy with that and that it wanted the financial memorandums to be much more closely worded, so that it would be possible to include specific costings of bills. When we start to include specific costings of bills, the scope for lodging an amendment at stage 2 would become far narrower. If a tightly defined financial memorandum and resolution were agreed, there would no longer be scope for the Executive to increase the amount of expenditure that the bill would create. I would welcome Andrew Mylne's comments on that.

In the paper, an awful lot of detailed changes are proposed that would require quite thorough examination. I know that the financial resolutions working group is well placed to do that, but I think that the Finance Committee would also wish to do it. Has the Finance Committee had a chance to consider the paper? I do not believe that it has.

I will take the last point first. The clerk to the Finance Committee was a member of the working group and he kept the convener in particular—but also the rest of the Finance Committee—in touch with what the working group was doing. I understand that, at one of its meetings, that committee endorsed specifically those parts of the recommendations in the paper that related to the role that is played by the Finance Committee. I can certainly assure the committee that the Finance Committee has been kept on board.

On Mr Macintosh's other comments, we need to keep a reasonably clear distinction between a financial memorandum and a financial resolution. I am not quite clear about some of what he suggested should be made more specific. The paper does not recommend any changes to the rule that deals with accompanying documents, and which therefore specifies what a financial memorandum must contain. There is some detail in that rule about what information a financial memorandum must provide, but we must bear it in mind that a financial memorandum can cover wider areas than those that would invoke a financial resolution. It is possible that a financial memorandum would describe certain costs that might arise at one remove from the bill, and which would be created by part of the policy package that the Executive—if the bill was an Executive bill—was developing, but that the terms of the bill would not require a financial resolution. There is a distinction.

How explicit, detailed or precise a motion for a financial resolution is, is a matter for the Executive draftsman who prepares it. As I have said, such motions have tended to be drafted in general terms, in that they provide a broad cover for the bill. However, that is not to say that they are imprecise. They are precisely general, if you see what I mean, in the same way that, if they were more tightly constrained, they would also be carefully drafted to ensure that the limits that they defined could be seen clearly.

I understand that. The financial resolution is usually one or two lines that say that the Parliament agrees to the financial implications of the bill, such as the expenditure that would be generated. The Finance Committee agrees those resolutions, having studied the financial memorandum. In other words, that committee makes a decision that is based on the financial memorandum. The paper does not go into the financial memorandum.

The problem that was identified by the Finance Committee was that there was not enough detail in financial memorandums. In other words, we were being asked to approve financial resolutions without any detail—the Finance Committee was unhappy with that. I hope that the rules will lead to much more detailed financial statements from the Executive when bills are discussed. There have been several bills whose expenditure implications were so general that it was almost meaningless for the Finance Committee to discuss them. I expect that to be changed.

Perhaps the link between the financial memorandum and the financial resolution needs to be explored. If the financial resolution is still going to be specifically but generally drawn, that is fine, because that tackles the problem of how members can lodge amendments at stage 2. However, it does not tackle the committees' unhappiness about discussing the financial implications of bills.

The rules are intended to ensure that the Finance Committee has a proper role to perform, which is sensibly balanced against that of the lead committee. The change that we are proposing to rule 9.6.3 makes it absolutely clear that the lead committee has responsibility for examining the financial memorandum—which is one of the documents that accompany a bill—in much the same way as it has a specific responsibility to consider the Executive's policy memorandum as part of the committee's stage 1 scrutiny of an Executive bill.

The last part of the change that we propose makes it clear that the Finance Committee retains the right—but not the duty—to contribute, should it wish to do so. The main point of the change, however, was to address precisely the point that Mr Macintosh suggested that the Finance Committee had made: that the committee should not be expected in every case to examine a financial memorandum out of the context of general consideration of the bill. I hope that we have addressed that point.

If I have got this wrong, shoot me down, but am I right in thinking that—in the spirit of the whole of report 3—paper 3B picks up procedural and minor matters? If the Finance Committee has additional issues that may be susceptible to procedural changes and standing order changes, could those matters be made the subject of further work and discussion? Does what is being done cut across what Kenneth Macintosh is looking for, or should we leave it to the Finance Committee to raise those matters with us, if it feels that that is appropriate?

I am concerned that the Finance Committee has not had time to look in detail at the matter. Callum Thomson, the clerk to the Finance Committee, is a member of the working group, and he may have kept up to speed. However, I was a member of the Finance Committee until Christmas and I can tell the committee that the detail of the proposals has never been discussed at the Finance Committee. I can assure you that members of the Finance Committee will not have given the report the scrutiny that it deserves, but I think that they should do so.

I recommend that we put the proposed changes to the Finance Committee. We have already discussed a number of issues that require further consideration, and we are dealing with major procedural matters, not minor ones. The problem that I was aware of in the Finance Committee was the problem of financial memorandums. The report suggests that there is not a great link between the details of financial memorandums and what is in financial resolutions. In many ways, we can discuss financial memorandums in great detail, but financial resolutions are merely a broad agreement that whatever is in a given bill, at that stage or at any future amended stage, will be approved. It seems to me that there is no link between financial memorandums and financial resolutions.

I certainly would not put it as strongly as that and I would not say that there is no link. There is a link, and the information that is contained in a well-prepared financial memorandum should certainly be material to the issue of whether a financial resolution is required. What I am saying is that it may go wider. Under standing orders, the duty about financial memorandums is that they must include the cost impact on a reasonably wide range of bodies, whereas a financial resolution is invoked by some reasonably direct impact on the Scottish consolidated fund. That is more specific, and that is why there might be situations in which a financial memorandum describes quite large costs, but where the decision might nevertheless be that a resolution is not required. However, that is not to say that there is no link.

My understanding is that the Finance Committee has considered the matter. I do not know exactly when, or what, it considered, but I understand that it has seen the report and approved those recommendations for change that affect the role of that committee.

Concern has been expressed that the Finance Committee might not have had the fullest involvement in considering the report. I am anxious that the Procedures Committee should not in any way seem to impinge upon the Finance Committee's territory or to create any friction between the two committees. I am inclined to support Kenneth Macintosh's request that we continue consideration of the matter so that we can get clarification from the Finance Committee.

The question that I have to put at this point is whether—given what Andrew Mylne said about deadlines for the private bill implications—he would wish papers 3A, 3C, 3D and 3E to be put forward as a report without paper 3B. If we forward paper 3B to the Finance Committee, we could get the report presented to Parliament on 3 May. However, we will miss that deadline if we hold the whole report for the Finance Committee to consider. Assuming that we approve all the other papers, could we approve the report—minus paper 3B—and take another cycle to consider paper 3B, or should we delay the whole matter?

We should avoid delaying the matter, if possible. My concerns relate specifically to the changes to chapter 9A of the standing orders and particularly to the changes that relate to fees and costs. It is important that those points are clarified so that guidance can be issued in a final form and promoters of bills can move forward without further delay. There are also changes to the report—to which the committee agreed some time ago—on time scales and deadlines for bills. It would be of great benefit to put those changes in place as early as possible. However, there would be no great cost if the recommendations in 3B were held back. If the committee considers that appropriate, that is acceptable.

That is a clear indication that we should ensure that everybody has been involved and is happy. We shall continue consideration of paper 3B.

Alison Coull wants to make another point for clarification.

The working group did not examine the terms of financial memorandums. In fact, the rules on what must be included in financial memorandums are fairly detailed. If there are concerns about the inadequacy of a financial memorandum, perhaps that is something that the lead committee could raise with the Executive.

The Finance Committee wanted the lead committees to do the work on financial memorandums because of the lack of detail. The Finance Committee did not feel that it was in the right position to do that work. The change to rule 9.6.3 reflects the Finance Committee's views, as I remember them, but it does not address the specifics of what is included in financial memorandums.

If we agree to continue consideration of paper 3B, we will resolve all those matters and will be able to bring back a report as quickly as possible. If that report is approved by the Finance Committee, we ought to be able to make a slim and sharp report to Parliament, which could be approved formally without the requirement for use of any chamber time. That might be the best outcome.

If we can agree to that course of action—I think we can—we can move on to paper 3C on the different deadline for Executive amendments. There are no standing orders recommendations on this matter, because paper 3C is up for discussion. Do you intend to say anything to introduce the paper, Andrew?

I do not think so. I am happy for the paper to speak for itself.

We have three options, which we examined before Christmas. At that stage, the committee expressed a preference for option B, which was to introduce changes to the standing orders. We agreed to that in principle, but we also agreed that there should be a more detailed paper to outline the issues and suggest changes. We have received representation from the Executive, saying that that would create all sorts of difficulties and that we should reconsider the matter. I am struggling to find my copy of the Executive's letter; I know that I was given one.

The Executive view, which was expressed in the letter of 20 March to the clerk of the committee, was a preference for option A at paragraph of 49 of the original committee paper PR/00/14/2, which was

"not to consider a change to Standing Orders at present but to keep the matter under review".

The Executive letter also quotes its good practice guidance for staff. To summarise the letter, it is, in effect, a statement from Andrew McNaughton—the departmental committee liaison officer—that the Executive has a code of practice that it is trying very hard to live with and to live up to. It will try harder and does not want a change to standing orders unless we are convinced that that is absolutely necessary.

Members will not have seen this letter. [Members: "We have."]—Members have all seen the letter.

It is for the committee to decide how it wants to proceed. Do we wish to instruct the changes? I do not think that the changes can be made in time for the report to go through in this round. Does the committee want to instruct changes that were agreed previously in principle, or is it content to keep the matter under review? There is also an option C, but I think that we have forgotten about it.

The letter of 20 March is not one that I could accept. It makes reasonable arguments but, with all due respect, the legislative system is supposed to be for the benefit of citizens, not for the convenience of the officials who are involved. There is a serious problem. I will, as an example, refer back to the late amendment that was lodged by the Executive on the Regulation of Care (Scotland) Bill. At stage 1, many people talked about adoption and fostering. The Executive said that it would introduce at stage 2 a new section in the bill about adoption and fostering. Such an amendment has duly been lodged, within the time scale that is laid down. The point is that there is not enough time for members who are interested in the subject to consult with outside bodies that are knowledgeable about the matter and to get their views on whether the amendments are sensible. As I understand it, the general thrust of the proposal is not controversial, but there is the matter of how to achieve it.

The legislative system must allow proper discussion with outside bodies. On the Transport (Scotland) Bill—which the convener and I were involved in considering—such amendments were lodged, which did not give time for members to consult interested parties. The issue needs more scrutiny.

The specific issue of whether Executive amendments should have to be lodged before other amendments is included in the paper. That would be sensible. It would be helpful to thoroughly consider the whole issue. I suppose that I support option A, but I make it clear that the status quo is not an option. I am strongly in favour of a change, but I want such a change to be well considered and widely supported in the light of experience of the passage of bills.

We have all had limited experience of dealing with legislation.

My experience has not been good, in that the lodging of amendments and time for proper consideration of those amendments has been difficult, whether they were lodged by the Executive or by members. Most amendments are lodged by the Executive and tend to be fairly complex and I do not think that that is the way to produce good legislation. Having said that, it would seem unfair for us to do unto the Executive that which we do not want it to do to us. I am quite happy that we should put the matter off, but I would not include in option A, the phrase, "for, for example, 6 months". There should be a specific time scale of no more than six months.

Some fairly major bills are in passage on which a great number of amendments are being lodged—Donald Gorrie referred to the Regulation of Care (Scotland) Bill and the same is true of the Housing (Scotland) Bill. I would like more time to be given to consideration of bills at stage 2. We are currently imposing unrealistic deadlines on them. I have raised at every opportunity specific concerns about the Housing (Scotland) Bill, not because I want to delay it—there are some good measures in it—but because I want adequate time for proper consideration of it. I do not think that allowing major Executive amendments to be lodged at the last minute is the way to do that.

I will confirm the consensus around the table. This is a real problem. All of us have struggled to cope with amendments at the last minute. Although we might have done a lot of work in preparation, the wording of the amendment might throw us and we might be unsure as to what has happened. It is very unsatisfactory.

I agree with the suggestion from the clerk, in paragraph 13 of paper 3C, that we might consider the issue along with the matter of manuscript amendments at stage 3. The timetabling of bills, which we have addressed, might make it easier to have a longer time for amendments. I agree with both the comments that have been made. We should go for option A now, but we should return to the subject.

We should keep a level playing field by treating Executive and non-Executive amendments the same.

Well—

No? Well, we can discuss the issue later.

Let us argue about that nicety at the time.

When the committee discussed the matter initially, the view was expressed that, as Executive amendments were generally likely to be passed, there ought to be the opportunity for other members to consider all the Executive amendments and have the opportunity to amend amendments or frame alternative amendments. That is why we feel that the Executive amendments should be lodged before anyone else's, although the fair point is made in the Executive's letter that sometimes it has to respond to issues late in the day.

We are giving a clear message that we are unhappy about the practice that has led to people having no time to respond to amendments. The ball is very much in the Executive's court. If by its practice, precedent and demonstration, it convinces us that it can manage the problem, the problem by definition goes away. If the Executive cannot do that, the committee will return to the issue of deadlines and will consider the possible application of the principle of an earlier deadline, as it will consider all the other possible options.

I hope that the Executive gets the clear message that the committee wants the problem to be resolved. What we previously voted for reflected a sense of frustration that the Executive was not acting to resolve it.

I agree with almost everything that the convener said, but I do not know whether we want to leave the matter in the hands of the Executive. We are saying that we would like to give the Executive more time, but we want something more definitive; having time to respond to amendments should be a right rather than a gift. If we leave it to the Executive to come up with all the answers, there could be slippage later on and we might get back to the same position.

It might be that there is a need for a change in standing orders to make having time to respond to amendments a right rather than a gift. I am happy that we give the Executive time, but I take Brian Adam's point that there should be a definitive time scale; six months seems reasonable. I take Donald Gorrie's point that we must produce a firm proposal rather than leaving it in limbo. The matter will come up again, when it suits the Executive.

All sorts of issues must be considered. I am sure that the Executive will closely examine what the committee has said this morning in considering how it might react.

This is not on that specific point, but on the point about manuscript amendments. As someone who is considering the Housing (Scotland) Bill, I would like clarification on exactly what is meant by a manuscript amendment.

We have, in Andrew Mylne, one of the world's leading authorities on manuscript amendments. He will share his wisdom with us now.

If I know what Mr Adam is unclear about, I will try to help where I can.

I assume that, if someone wants to change the word "shall" to "may" in an amendment that has been lodged, it is possible for him to do that at the discretion of the convener and with the committee's acceptance of the change. Is that the procedure for a manuscript amendment?

That is almost right. In the standing orders, the term manuscript amendment is used to refer to any stage 2 amendment that is lodged after the normal deadline. That can be any time from five minutes after the shutter comes down on lodging amendments on the final day to the point during the committee meeting when that part of the bill is about to be dealt with.

Does not a manuscript amendment have to be lodged in writing?

Yes, it does. The standing orders define it as an amendment that is lodged after the normal deadline. Manuscript amendments are therefore subject to the same rules that apply to all other amendments. That means that it has to be lodged, it has to be admissible and it is subject to the same rules on being moved and disposed of as are other amendments. Standing orders set out how an amendment is lodged, which includes by e-mail or in writing.

Does that mean that, if I decide that a minor technical point is required as a result of a committee debate, I can scribble a note with the change that I want to be made?

It would be perfectly acceptable to scribble the manuscript amendment on a piece of paper and sign it.

Why should I have to go through the mechanics of doing that? If a minor technical point that arises as a result of a debate can be covered by a manuscript amendment, why does it have to be written?

Surely everything has to be moved.

By all means a member could move the manuscript amendment during the debate, but would it not make sense, in the case of minor changes such as replacing "may" with "shall", to do as I suggest?

Are we not pre-empting the discussion that we have just agreed that we will have?

I would like to clarify the point, as it is an important one. As I have explained, a manuscript amendment is defined only by the time at which it is lodged. There is no reason in principle for a manuscript amendment not to be substantial. It may not be as simple as changing "may to "shall", but it could add a whole new section to a bill. Anything that can be done with an amendment can be done by manuscript amendment; the only difference is the time at which it is lodged.

A simple example would be where, at a very late stage, just before a member moves an amendment, they spot an error in the amendment and want to move a manuscript amendment to it. That may seem a straightforward matter as the change may seem to be superficial, but there will never be a clear definition of what constitutes minor change.

The difficulty is that procedures are rather more formal and bureaucratic precisely because we are dealing with the letter of the law, which the courts will interpret in the real world. The courts will interpret legislation as they see fit. What may seem to have been—in the space of a few minutes—a small change, may turn out to be an important one with significant implications for how a court reaches its judgement. That is why we try to ensure that proper notice is given of any change that might get into the eventual act. That allows people to have time to consider the implications and ensure that the change, however minor it may appear, is acceptable. Where an exception is made, in the case of the manuscript amendment, it is still subject to reasonable constraints. That is why we try to ensure that the normal rules on having the amendment lodged in writing and having it subject to the normal tests on admissibility are still adhered to.

Surely whether the amendment is lodged in writing or offered verbally does not in any way change its quality.

I do not think that that is particularly pertinent to today's business. We have a lot of work to get through today and we can address that point later.

We have worked our way to agreement on option A within a reasonable time scale. That allows us to sweep up the other matters that Brian Adam and Andrew Mylne have been discussing so eloquently. It is humbling to be in the presence of a man such as Andrew Mylne who loves his work so much. He has shown a real passion and enthusiasm for the manuscript amendment.

If that recommendation is agreed, we will move on to the next item. Paper 3D addresses the lodging of amendments to stages 1 and 3 motions. The matter has exercised some controversy in the chamber and the paper rehearses that controversy. The Presiding Officer has ruled and given guidance on the matter through the business bulletin. He has now referred the matter to the Procedures Committee and has asked whether the matter needs further examination, as there may be standing order implications. We have three options: option 1 is to accept his ruling; option 2 is to monitor the situation; and option 3 is to decide on changes to standing orders and to commission a further report on those proposed changes. Does Andrew Mylne wish to add anything to the paper?

No.

One problem, which has been mentioned before, is that some bills cover several quite disparate areas. The concept of supporting the general principles of a bill that may be a ragbag of individual albeit good propositions is difficult. Members should have the right to indicate their opposition to a section of the bill. In the case of the Ethical Standards in Public Life etc (Scotland) Bill, the clause 28 issue was tagged on to the end of the process. The Conservatives never had a proper opportunity to express their opposition to that part of the bill. Similar things happened with the Transport (Scotland) Bill. If there are two or three sections to a bill, members should have the right to say that they are okay with the bill as a whole, but that section 3 is wrong. If the proposition is agreed to, the question is whether it will allow members only to set out their stall or whether it will allow them to lodge an amendment that will have the effect of deleting a section of the bill.

Opposition parties should have the right to set out a philosophical point, but reasoned amendments should be worded in such a way that they do not amend the bill. Members should continue to have the right to try to amend a bill as it progresses. Members' stage 2 amendments can be caught out by the proposition that the Parliament has approved the general principles of the bill. A member cannot move an amendment that challenges those alleged principles. Members should have the right to lodge reasoned amendments, but they would have to be statements of opinion rather than formal amendments to the bill.

My own experience may be of assistance to the debate. I lodged a reasoned stage 3 amendment to the Transport (Scotland) Bill. The Presiding Officer would not accept it unless the wording was amended. He considered that my amendment raised a doubt about the passage of the sections of the bill to which it related. I therefore had to word it to make it absolutely clear that the passage of the bill would not be affected, while expressing a dislike of certain aspects of the bill. That problem is at the core of the sensible ruling that the Presiding Officer gave. I see nothing wrong with a stage 1 or a stage 3 amendment expressing reservations, support or opinion, so long as the outcome of the decision on the bill is not open to challenge.

Although it is not referred to in Sir David Steel's ruling, another example happened during the course of the Salmon Conservation (Scotland) Bill. The Presiding Officer accepted an amendment that was lodged by the SNP, which accepted the bill but criticised it for not fully addressing the issues as the SNP saw them. The SNP then tacked on further actions that it expected the Executive to take. I was a bit more surprised that the Presiding Officer accepted the amendment as, although the amendment did not affect the passing of the bill, it seemed to introduce some extraneous material. I did not think that that was quite right.

As Donald Gorrie said, a reasoned amendment should express an opinion, such as, "We are going to pass the bill but we do not like section 3." That is harmless. A reasoned amendment simply allows members to support the generality of a bill without compromising their position on an aspect with which they are uncomfortable. That is a healthy thing to do.

I, too, feel quite comfortable with what the Presiding Officer did, but I do not agree with your final comments, convener. It is perfectly legitimate to offer a member the opportunity to lodge objections to what appears in a bill. However, it is equally valid to allow an amendment to say what is omitted from the bill and to encourage the Executive to redress that omission at some future point. To have such an opinion about a bill is just as valid.

I agree. Members would be entitled to say that they approve the bill but regret that it does not tackle A, B and C. That is fair enough. In that particular case, the motion urged or instructed the Executive to do something further and departed a bit from the expression of opinion, which is at the core of a reasoned amendment. However, the Presiding Officer's ruling does not touch on that; the matter remains within his discretion and we need not fall out about it.

I am content with the current position. As long as any amendment that is passed does not have an adverse impact on the bill's implementation, the current position is fair.

I share the sentiment that has been expressed so far. One thing on which I am unclear is the reconsideration stage, which we have never used yet. Perhaps Andrew Mylne is the best person to comment.

Absolutely.

What is the difference between passing reasoned amendments at stage 3 and the reconsideration stage?

The reconsideration stage is provided only for the very particular circumstance that may arise when either the Secretary of State for Scotland or one of the three law officers challenges a bill that has been passed. The grounds on which they can challenge the bill are contained in the Scotland Act 1998, which we cannot amend. Only in that particular circumstance, which has not yet arisen, can there be a reconsideration stage.

The basic position is that subject to that possibility, the Parliament's last chance to amend a bill is before the bill is passed. One of the motivating factors behind the Presiding Officer's ruling is that there can be no uncertainty about the final outcome—in particular on amendments to a stage 3 motion. A bill is either passed in its entirety or not passed, in which case it falls and does not become an act. The Presiding Officer wanted to ensure that that clear distinction was preserved.

I think that an agreement has evolved that we are happy with the Presiding Officer's ruling. We look forward to his exercising his discretion on future occasions.

The final matter under agenda item 3 is the draft report. Because the report contains recommendations from the paper "Financial Resolutions for Bills", which we will not now be able to progress, the report will require to be amended. Therefore, it does not make much sense to go through the report section by section, particularly as we have agreed all the proposed changes to standing orders. In any event, it was recommended that Kenneth Macintosh, who is the deputy convener, and I should approve a finalised version. Clearly, a little more work will now need to be done to get the draft report ready for the end of the week, which is the target.

Is it agreed that, subject to the delayed matters being excised and further adjustments being made, we will recommend the approval of the draft report?

Members indicated agreement.

I do not know whether the report will need parliamentary time or whether it will be approved formally but getting the report sorted out will remove a big headache from the clerks and the legal people and everybody else who has been involved.