Official Report 170KB pdf
Good afternoon, everyone, and welcome to the fourth meeting this year of the Standards, Procedures and Public Appointments Committee. I ask all members, witnesses and the massed ranks of the public to switch off their mobile phones and BlackBerrys. Dave Thompson sends his apologies—he is with the Transport, Infrastructure and Climate Change Committee; Alasdair Morgan is attending as his substitute. Cathie Craigie hopes to join us, but she is at a meeting of the Justice Committee.
He is on his way.
—Robert Brown, Robin Harper, Margo MacDonald and David McGill. I encourage members and witnesses to be as brief as they can be in their questions and answers, as the time available is tight and some members have to go off to other meetings. Rather than ask people to make opening statements, we will go straight to questions. If any of the witnesses wants to embellish a particular point, they should feel free to do so.
Good afternoon, everyone. What are your views on the current timescale of three minutes for speaking to a point of order?
It is interesting that, in practice, members have used an average of about one and a half minutes in this session and one minute in the previous session to speak to points of order. We know to our cost that if a member goes on too long, the rest of the Parliament reacts accordingly, so members have learned to be quite concise. That said, I think that three minutes is an appropriate length of time and disagree with the suggestion that, as in some other Parliaments, no time limit should be placed on points of order. That would be unhelpful. Three minutes is sufficient, particularly if something of substance needs to be said but, in practice, most members are brief in speaking to points of order.
The only additional point I would make is that occasionally, when things get heated, a series of points of order is made. On each occasion, the member who makes the point of order has an entitlement to three minutes. One point of order of three minutes might be quite acceptable, but four or five three-minute points of order would not be. Given that, in practice, members take only a minute and a half, I have no objection in principle to the reduction of the time limit to two minutes or to giving the Presiding Officer appropriate discretion to draw someone's remarks to a close, particularly if they were made as part of a series of what may or may not be points of order, but which began as such.
I do not agree with Brian Adam. The self-regulatory regime of the chamber—the opinion of members—is important. As someone who has made points of order in various circumstances, I know well that if a member has a good point of order, the chamber listens to them. A slightly more tendentious point of order—not that I raise that kind—can be more troublesome. Members would not, by choice, stand up in the chamber and go against opinion on an issue unless they had a good point.
I can think of a good example of that.
So can I. We get into abnormalities and oddities in that regard. Like Jackie Baillie, I take the view that the three minutes works okay as an outside limit, and reinforces the opinion of the chamber.
Judgment is required all round, much more so than in other interventions. The Presiding Officer is in a position to judge whether a member is being repetitive. It is round about the third point of order—that is actually an offence against the standing orders. Presumably, the Presiding Officer can gently say, "You're being repetitive." There is always a fail-safe in the standing orders, and the one on this issue is pretty good. We should keep the three minutes in case there is a serious point of order concerning a criminal case or a serious civil case in law. We must have the facility for that.
For David McLetchie's benefit, the question—he has probably worked this out already—is whether the current three-minute timescale is adequate or proper.
Three minutes is perfectly adequate. We do not need longer. It would be a little perverse to make the period shorter for all points of order, because sometimes they deal with something more complicated. As Margo MacDonald said, legal matters need fairly careful explanation in a point of order. We got it right the first time.
The three minutes is for a point of order, but that raises the further point of who decides that it is a point of order. Is it simply a matter of the member standing up and saying, "On a point of order"? Or is the Presiding Officer in a position to judge—after he or she has heard enough—and to say that something is not a point of order and that the member should therefore stop?
That is what happens, which is why I mentioned judgment. It is why we have a Presiding Officer. After listening for a while to what is being said, the Presiding Officer can make a judgment; the current one is pretty good at saying gently to members, "I don't think that that is a point of order." There is no clinical way of coming up with the same answer in every circumstance.
That is a fair point. Ultimately, we have to get to the point fairly quickly with a point of order, because it is meant to relate to the proceedings in the Parliament. It is therefore entirely right that the Presiding Officer should police that. If the member who raises the point of order fails to get to the point of it, the Presiding Officer is entitled to intervene and to tell the member to sit down.
That was just during divisions.
Was it, Alasdair? Did you ever wear it?
We could make it a baseball cap in deference to Christopher Harvie.
That raises the question of what sanctions should be applied to members who raise vexatious points of order, which does not happen often. I do not know whether that issue is coming up, but your question raises it. If a vexatious point of order is made, the member whose time was curtailed should have it given back to them; that would be correct.
My understanding is that the Presiding Officers try to compensate and ensure that business is protected, but not on a rigid formula that means that, if three minutes are taken, they try to add them on. The Presiding Officers are sufficiently astute and flexible to manage the business and ensure that members do not complain that a substantial amount of time is taken up with points of order. Points of order tend to be made towards the end of the day, although not exclusively; if anything, members are frustrated at having to keep sitting in their seats while decisions are delayed or after they have been made.
There is a way round the problem: if points of order, whether vexatious or not, have taken a particularly long time from a debate, a motion without notice could be moved to extend the time for that debate by quarter of an hour or half an hour. There is always another way of coming at a question, so we do not need to change the rules.
We will come back to that issue.
Although it obviously affects the member who has been interrupted, it will affect the debate somewhere. The Presiding Officers tend to have a little margin within which they work. However, if there are two or three points of order in a contentious debate, the route that Margo MacDonald suggested might be appropriate. Then again, why should we move decision time from 5 o'clock when members may be waiting for the members' business debate at 5 or 10 minutes past 5? Moving that debate by 15 minutes or half an hour might also be disruptive.
Under standing orders, the Presiding Officer has discretion to determine the length of speeches so, if he considers that an interruption was vexatious or unfortunate for whatever reason, he is perfectly at liberty to give a member an extra two minutes.
The practice of Presiding Officers has been to ensure that when a point of order is raised during someone's speech, that member does not suffer. The member who raises a point of order has an absolute right to do so under standing orders, but Presiding Officers have not taken that time from the member who was originally speaking. That contrasts with the approach to interventions, which are taken at the discretion of the member who is speaking. A member chooses whether to allow an intervention, so time is not added in those circumstances.
The Presiding Officer wants to minimise disruption to First Minister's question time, so he has said that any points of order should be delayed until the end of that item of business. Would you like that approach to be extended to other circumstances, such as other oral questions?
I would not like the approach to be extended at all. That is the Setanta rule—it tailors the Parliament's proceedings to suit the press and television news. Why does a member raise a point of order? Because they feel that the Parliament's rules have been broken. I return to my example of the Parliament being misled, whether deliberately or not, which a member thinks is important enough to be corrected. The reason for correction there and then is to prevent other members from adding to the mistake and to ensure that that happens before the boys have left the press gallery—they now leave after the second or third question.
The practice at First Minister's question time should be the exception. Even then, I understand that the Presiding Officer still has discretion. I cannot immediately think of circumstances in which he might want to take a point of order there and then, but I guess that they might arise. I would not like that practice to be laid down in immovable statute; the matter is at the Presiding Officer's discretion. The rule that points of order are normally taken at the end of First Minister's question time is probably reasonable, in the circumstances, but I would not like the practice to be extended and I see no cause to do that.
I see no need to extend the practice, but not taking points of order immediately has some advantages. Sometimes, points of order are raised not to highlight a technical mistake in business, but to make a political point. The additional few minutes allow some cooling off to take place. The point of order will be fairly obvious to the Presiding Officer and the member involved will have a moment or two to reflect on it.
The First Minister is no different from anyone else. He is only an elected member of the Parliament.
I do not agree with that in the context of First Minister's question time, which is an established procedure of the Parliament to allow questions to be put to the head of the Government or Administration. There is a case for giving the First Minister a degree of special treatment in those circumstances. The present practice of deferring points of order until the end of First Minister's question time is appropriate, as it is highly unlikely that a valid point of order would be raised during that period. Most points of order would relate to one of two issues. If a point of order relates to a misleading answer, the questioner who is allegedly being misled often has the opportunity to respond to what the First Minister has said, if they are clever and sharp enough on their feet.
It has been custom and practice for points of order to be taken at the end of First Minister's question time. There is no reason for that to change, because the Presiding Officer can exercise his or her discretion. Indeed, the Presiding Officer has done so by taking a point of order during FMQs. We should continue to allow the Presiding Officers a degree of flexibility. If there is an incident in the chamber during First Minister's question time, a number of members from all parties will be on their feet raising points of order. The Presiding Officer would be well advised to take such points of order.
It is down to the Presiding Officer's judgment. To be honest, I think that the First Minister was out of order last week on the issue of relevance. I am sure that my saying so will make me enemies—as if I needed any more—but I could refer members to the standing order rule concerned. His comments were very amusing and everyone enjoyed them thoroughly, but they were not relevant. If I had said that at the time, I would have been cast out into utter darkness. However, if I had waited until the end of First Minister's question time before raising a point of order, it would have sounded a bit petty.
Hugh O'Donnell's next question relates to a similar point.
Jackie Baillie referred to members getting to their feet to raise points of order. If someone does so, should they be required to specify either the relevant rule in standing orders or to indicate in some way the basis for their point of order?
It would be extraordinarily difficult for members to absorb the entirety of our standing orders and to be able to quote the number, paragraph number and wording of the rule to which their point of order refers; that would be a requirement too far. Members understand the difference between a legitimate point of order and genuine frustration at what they see happening in the Parliament. We will not get round the problem by ensuring that members quote the number of the rule to which their point of order refers. Some rules are quite generic and could be prayed in aid of several different points of order. That would not necessarily be a helpful approach. Some members quote from the standing order rules to which their points of order relate. The rest look on with a degree of bemusement, because they do not know what is being spoken about.
When members have advised the Presiding Officer in advance that they intend to raise a point of order, it is only courtesy that they should indicate to which rule it refers. It is fair that in that case members should be well prepared, as it enables the Presiding Officer to inform the Parliament of what is happening and why it is happening.
Perhaps the obligation to refer to the relevant rule would enable members to make points of order from a more knowledgeable basis than a gut feeling, which is what you seem to be suggesting.
Members might be in a position to do that for points of order that are thought through and taken at the end of the day. However, it would be unreasonable to expect members to do that for points of order that arise from incidents that happen in the course of a debate. It is for the Presiding Officers to exercise their knowledge of standing orders and their judgment on what has happened in the chamber. I would be content to leave it at that.
Should there perhaps be another form of protest, other than points of order, for an issue that a member knows is not a point of order but which it is important to raise at that time?
The unequivocal answer would be no. The chamber has seen other forms of protest; far be it from me to recall them for the member, but the Presiding Officer at the time, George Reid, dealt with them admirably and swiftly. I would not want there to be a second-class point of order. Members should be disciplined enough to understand what is a point of order and the Presiding Officers should allow appropriate flexibility—sometimes even spurious points of order are helpful in clearing the atmosphere and allowing members to calm down. We have got the balance right and I reject any notion of creating another category of protest.
We will come to that issue in more detail.
I wondered whether anyone else wanted to comment.
We will come to the issue in more detail in the next couple of questions. I am aware that not everyone has had a chance to respond to Hugh O'Donnell's original question, which was about whether it would be useful for members to have to specify the point of order that is being made.
Hugh O'Donnell's question was in two parts. He asked whether a member should have to cite, for example, rule 3.2.4 of standing orders. I agree with Jackie Baillie that that would be inappropriate.
I support what Brian Adam and Jackie Baillie have said. Points of order are an important part of the way in which we work in the chamber and they deserve respect, as do the Presiding Officers. Before the member launches into their point of order, it is respectful for them to give an indication, with a fair degree of precision, of exactly what the point of order is about.
We have already had a ruling on the question of allegations being made and whether or not a member calls another member a liar. The ruling was that no one tells lies in here—although they perhaps chance their arm or exercise terminological inexactitudes. I am not exactly sure of the term, Deputy Presiding Officer, but a ruling was given.
It's the way you tell them. [Laughter.]
Within standing orders if I can.
I understand that there is absolute privilege in terms of defamation, but we have with us two lawyers and a clerk from the chamber desk, who will perhaps say otherwise.
There may be absolute privilege in terms of civil liability outside, but we are talking about the "Code of Conduct for Members of the Scottish Parliament" and whether there is a sanction under the code for members who go over the score. I would have thought that such things would be classified as discourtesy or as being a lack of proper order in the chamber and would therefore fall within the remit of the Presiding Officer.
There was an example last week, when the Liberal Democrat spokesperson, I think, was sailing close to the wind. It is worthwhile considering the issue.
We have some more questions on the same subject from Marlyn Glen.
We have spoken a bit about spurious points of order. Are there circumstances in which it should be considered appropriate to allow a spurious point of order to be made? If so, can you give an example? People have referred to points of order that are tendentious or not legitimate. Are there circumstances in which they should be allowed?
That is just what we have been talking about. A point of order is one way of defusing the situation and getting out of a problem fairly easily. If A calls B something or describes something that B has done, but which is untrue or otherwise says something that outside Parliament would be defamation, the Presiding Officer certainly has the discretion to allow B to get to his or her feet and put it right for the record. Alasdair might disagree, but I would have thought that that was the case.
Er—
I do not think that Alasdair wants to commit himself. [Laughter.]
That is the advantage of not being in the chair.
The committee papers quote a helpful House of Commons report called "Revitalising the Chamber: the role of the back bench Member", which I will go away and study. It makes the point that spurious points of order can be a safety valve as they allow back benchers an opportunity to express strong feelings on a current issue. If we look carefully at how they have been used here, we see that, even when they have not been proper points of order, the Presiding Officers have welcomed the opportunity to have a period that calms the debate and takes the heat out of it when members may be bordering on trading personal insults, which do not help the quality of debate. I would not want to come down too heavily on them because they serve a purpose, but I am content to leave it to the judgment of the Presiding Officers to police that effectively.
I agree entirely. Spurious points of order have a useful role. If they are made intelligently and imaginatively, they can contribute to the debate. If they are not, it is a question of the chamber self-policing, with members not liking them and the body of opinion coming down against them. The Presiding Officer is there to hold the coats as far as that is concerned. Such points of order fulfil a function, and I would not like to see them further regulated.
Other than points of order, should there be a mechanism, not necessarily for protest, through which members can seek corrections or clarifications of points that are made during a debate?
We have a flexible system. We have discussed the issue here and presumably our discussion will leach out to other members who might not have been aware of the importance of the record. We have a way of doing things without too much fuss and allowing the Presiding Officer to calm things down. We should stick with that.
I agree. We do not need to create another category, as Margo MacDonald and Jackie Baillie said in response to an earlier question. We just have to acknowledge that although rules and procedures have a formal purpose, they also have informal purposes that evolve. If we were to create a new category of rule to compartmentalise everything so that we would have valid points of order and something else for other causes for complaint or comment in the chamber, we would constantly have to formalise rules about behaviour and conduct: to be frank, members will just find even more ways round them. It all comes back to the themes that run through most of the answers to the questions that have been posed today: it is a matter of self-policing and firm chairmanship.
I do not know about "firm chairmanship".
It should be firm, but flexible and fair.
I apologise to the convener and our visitors for my being late, but the Justice Committee ran over.
Round the back of the chamber.
I think that the Official Report should show that Margo MacDonald is making punching movements with her hands that might not necessarily be captured.
The Presiding Officer must make a determination, but we have already said that he can decide what is relevant, courteous and repetitive. He already has a fair amount of discretion, should he want to use it.
Inherent in Marlyn Glen's question is a suggestion that there should be an opportunity to correct factual errors. However, that might not be necessary because there might be an opportunity to do so during the debate. Points of order are sometimes used to correct opinions or to offer a balance. There have been circumstances in which people external to the Parliament want to have errors of fact corrected in the Official Report, and there might well be members who want to do that as well. I do not have a problem with people using points of order as an opportunity to vent steam or to challenge the veracity or otherwise of a statement or an answer, but we need to be careful to understand that the Official Report is a record only of what was said, not of what is true or false.
That is true.
Although I accept that, I think that we have a duty to be accurate in the chamber and not to mislead anybody either unintentionally or deliberately. Do not underestimate the extent to which people will study the words that are spoken in Parliament and take meaning from them.
I return to what Brian Adam said. I do not think that it is so much a matter of the ministerial code but the search for the truth. Although that is laudable, one of the problems is the distinction between the truth and the whole truth. That is often the issue at stake. It will be very difficult for any Presiding Officer ever to regulate that.
That is a fair point.
I accept that completely. There are circumstances in which people do not like the answer, because it does not tell the whole story or it tells a story that is partial in both senses of the word—it is incomplete and gives a partisan point of view. However, that can happen whether a minister or another member is speaking. Views are expressed and Parliament resolves to do something one way or the other on that basis.
Brian Adam's point about legislation is interesting. A debate on legislation can be called in evidence before the court when there is a question about the intention of the legislation. Issues might arise in that context.
We are the Parliament of Scotland, as Margo MacDonald reminded us when she gave evidence to the committee last week. People expect us to debate the facts. It is reasonable for parliamentarians to expect that the information that we are given in the chamber, especially in ministerial statements, is factual.
I ask witnesses to keep their responses on points of order, which are the subject of our inquiry.
We have moved away a little from points of order. I want to develop what Robert Brown said. As part of our points of order procedure, if things have been said deliberately to mislead—if someone lied—of course the matter should be taken seriously. However, we must be careful about how and how often such accusations are made. If the boy cries wolf too often on a matter of political debate, his accusation might not be taken seriously when it is true. We must be careful not to create a situation in which accusations about deliberately misleading the Parliament are regularly made. I am slightly concerned that such accusations are made rather too often.
The helpful table that is provided in our papers shows that between May and October 2003, 41 points of order were made, whereas between May and October 2007, only 28 points of order were made. The evidence demonstrates that what Brian Adam suggests is not the case. We should deal with facts rather than perceptions.
Jackie Baillie's comment on the number of points of order in the two sessions is correct. However, substantially more time was spent on the 2007 ones even though fewer were raised.
Should standing orders provide that repeatedly raising spurious points of order is disorderly behaviour and that members who do so are subject to the sanction of exclusion from the chamber under rule 7.3.3?
Ultimately, the Presiding Officer has that choice. As we are all supposed to be politicians and fly to the ways of the world, however, it is most unlikely that a Presiding Officer would be faced with having to make that choice.
I do not think that we need any further sanctions. We have seen that the Presiding Officers can manage individual members, and when there was a group protest and the members involved were subsequently ejected—following, if I recall, a meeting of the Standards and Public Appointments Committee, ably chaired by Brian Adam—the incident showed that our procedures can cope.
I agree.
I agree.
We have achieved something. The lawyers are agreeing with each other.
I, too, agree.
Can I give to members a helpful hint that I have found handy? On the day when the Danish people wisely voted against a European measure, I had two wee flags—a Scottish one and a Danish one. I simply waved them when I approved of something. The previous Presiding Officer obviously thought that that was acceptable. I was not upsetting anybody.
A "three strikes and you're out" approach is certainly a possibility, but the power to exclude members is already available to the Presiding Officer. Margo MacDonald was right to say that the power is unlikely to be exercised because it would add to disruption to Parliament.
I think that Jamie McGrigor's question got the first unanimous response so far. Back to you, Jamie.
My next question is perhaps not worth asking, given the response to the previous question, but I will ask it anyway. Should a system be introduced to monitor spurious points of order so that any member who persistently raises them can be identified?
No. We all know who they are; there is no hiding place.
It is a matter for the Presiding Officer.
Before we move on, with regard to my reference to the protest in the last parliamentary session that resulted in members being excluded from Parliament, I wish to put it on record that I did not agree with the procedures that were followed. Perhaps the committee should examine them, just in case the same situation arises. You might find that, with the benefit of hindsight and experience, it is advisable to provide some advice to the Presiding Officer on such matters.
Your point is on the record and will be taken on board.
At the moment, the chair is the only arbiter of what is right or wrong. Should there be an appeal mechanism similar to that used in, for example, the United States Senate?
No.
No.
No. If people are unhappy with the chair's decision, it is always open to them to explain in writing why they felt that the decision was inappropriate at the time and to ask for some mature reflection and a written response on the matter. However, I do not think that an appeal mechanism is in any way appropriate. The buck has to stop somewhere and with someone. We have elected three people to deal with such matters, and we ought to treat them with the respect that they deserve—as long as they earn it. [Laughter.]
With all due respect, I think that the question raises a serious point that requires a bit more thought. It would take a very strong-minded person to move a motion of no confidence in the chair because of a particular action or decision that referred to them.
If a way of doing it could be found, would it be helpful to codify the Presiding Officers' various rulings? It happens in New Zealand, and the House of Commons has Erskine May. Would such a document be compulsory bedtime reading?
If we were getting one, two and three-star decisions.
It would be quite useful to have a little compendium of commonly applied rulings, as long as such codification did not give those rulings almost the imprint of law, because that would intrude unduly on the discretion that is required in these matters.
In other words, it would become case law.
Exactly. Such a document would not be a bad thing if it assisted members with good conduct in the chamber, let them know where they stood and perhaps went a little bit further than—or helped to explain or interpret—standing orders. However, I certainly would not want to call it a code, unless, of course, it started to be cited.
George Reid was quite adamant that he did not want to have the sort of precedents that are everything in, for example, the House of Commons. However, I just do not know whether he was right.
I suppose that such a document might help to explain or could be read as another aspect of the standing orders.
That would simply confuse matters. As members will recall, we spent a considerable amount of time at the bureau bringing all the various bits of guidance, custom and practice together to see whether they really required to be codified, and I have to say that members sitting around this table did not necessarily agree with such an approach. I am not averse to Alasdair Morgan's suggestion that we consider practice in other Parliaments but, having already reflected on the matter at the bureau, I find myself wondering why it is being raised again by this committee.
Perhaps because we are not the bureau.
I am just curious whether views have changed.
I thought that we discussed at the bureau a guide for members on the Parliament's procedures. As I understood it, Alasdair Morgan's question raised the idea of having a document that sets out the chair's rulings, which is different.
That is already provided by the Scottish Parliament information centre, is it not?
Quite a lot of work has been done on that.
It would be helpful to have a way of gathering together the Presiding Officers' rulings on points of order. That information could be made available as a reference for anyone who wanted to use it. I cannot imagine that it would make compulsive reading, but it might be useful in a general sense.
That is just like the Government.
As there are no further questions, I bring the session to a close. I appreciate that the time of the Parliamentary Bureau's meeting today was changed to accommodate this session. We are grateful for that. I thank members for their evidence.