Publication of Rejected Amendments
The next item on the agenda is the publication of rejected amendments. I think that Andrew Mylne will join us for the discussion. Concern about the issue is based on several disagreements—or rather, discussions—in the chamber about the selection and non-selection of relevant amendments. Christine Grahame has written to us on the matter and we will start by hearing from her. We will then ask Mr Mylne to comment before we discuss the proposals.
It would be appropriate to the Parliament's spirit of openness to assist members and the public by publishing in the business bulletin amendments deemed inadmissible at stages 2 and 3. The segment for inadmissible amendments would refer to the paragraph of standing orders under which the amendments were rejected.
It was helpful to read the comparisons with other legislatures in the briefing paper, which says that in Westminster
"all amendments to Bills are printed, regardless of their being"
inadmissible, which is called "orderly" there. In the Australian legislature,
"the Chair has no role in selecting which amendments (to bills or motions)"
are taken. As members know, in the Scottish Parliament, the convener of the committee makes the selection at stage 2 and the Presiding Officer makes the selection at stage 3.
I am attracted to the Canadian model. Paragraph 13 of the briefing paper says that the Canadian legislature
"decided only recently to publish all amendments, regardless of their admissibility."
The paper says:
"The decision was taken following a recommendation by the Standing Committee on Procedure and House Affairs
‘. . . that Members could benefit from this (publication of all amendments) in that it would show the work that they have done and allow them to put on the record amendments which might not be procedurally acceptable. It might also provide greater direction to Members and their staff if they could see what kinds of amendments have been ruled out of order.'"
That is a commonsense way of proceeding.
At the moment, members are discontent. When matters are raised in the chamber, we do not realise that members have tried to lodge amendments, because amendments that were rejected as inadmissible have never seen the light of day. That is most unsatisfactory.
I do not advocate an appeals procedure, because that might cause problems for conveners and the Presiding Officer. There might be another way. In the Canadian model,
"members do occasionally seek clarification or elaboration of the reasons behind a Speaker's decision however and may also, by explaining their view of the intent or nature of an amendment, seek to have the Speaker reconsider a decision."
That device might be useful. The Presiding Officer could tell a member why he was going to reject an amendment as inadmissible and give that member an opportunity of discussing the matter prior to publication. If the amendment were still ruled inadmissible, at least it would be published with reasons.
I would like standing orders to be amended, but the guidance that is issued is also important. The guidance says that an amendment that has been fully debated and put to a vote at stage 2 may not be admitted at stage 3 for that reason. I feel that standing orders should refer to that mechanism. If I see that an amendment of mine will not be accepted at stage 2, and I wish to proceed with it at stage 3, I do not move the amendment, or I seek leave to withdraw it. However, it is my understanding that an amendment that I do not want to proceed with because I want to debate it at stage 3 could be moved by another member and put to the vote at stage 2, which might make the Presiding Officer regard it as inadmissible at stage 3.
The Presiding Officer might take that into account in making his decision. However, you are broadening the issue a wee bit beyond the paper that is before us today.
I raise that because the guidance is now substantial and affects the way in which the Presiding Officer accepts amendments.
This is a bit like legislation: we put the bare bones of the legislation in the bill and elaborate in guidance. The standing orders have to operate in the same way, in that there has to be some elaboration beyond the specification we would want in the standing orders.
My substantive point is that inadmissible amendments should be published with reference to the standing order that has been applied—for example, it should be stated if the amendment was deemed not to be in a proper form.
My second point is that the standing orders should at least refer members to the appropriate section in the guidance. I do not want to malign any members, but some are not aware of the weight and balance that the Presiding Officer—
Do the relevant standing orders currently refer to the guidance?
Andrew Mylne (Scottish Parliament Directorate of Clerking and Reporting):
No.
That might be a legitimate consideration, especially if the guidance is an important part of explaining to members how the system works. Just as bills refer to ministerial guidance, it might be appropriate for the standing orders to refer to guidance. However, that is something that we can discuss.
Christine, are you are talking about our adopting something similar to the Canadian system? I do not want to misunderstand you, but I think that you quoted from paragraph 13 and referred to the procedure mentioned in paragraph 14.
Yes.
I think that you also said that you accepted what is, in effect, in the first sentence in paragraph 14: that this should not provide a mechanism to appeal a ruling to the chamber or to challenge the Presiding Officer's authority directly.
That is correct. I would be content at this stage if the Procedures Committee were to take the view that it would like the standing orders to be amended so as to allow for the publication of inadmissible amendments. We could see how that resonates among members—to what extent it alleviates any sense of unfairness and how far it deals with the feeling that things are not being explained. We could also see to what extent members are unaware of amendments that have been lodged. The practice could also act as a discipline on members. As is said in relation to the Canadian model, nobody wants all the world to see daft or badly drafted amendments.
That is helpful clarification. Is there anything that you would like to offer to lead us through this discussion, Andrew?
I can certainly try. There is one point on which I am not yet entirely clear. You will be aware that there is an important distinction between admissibility—which applies at stages 2 and 3—and selection, which is a separate threshold, so to speak, and applies only at stage 3. I am not clear whether what is being proposed is that amendments that are rejected on either of those grounds are printed or only those that are rejected on the ground of inadmissibility.
That is a fair point; I had not intended to deal with that. If an amendment were rejected despite the fact that the Presiding Officer had decided that it passed the test for admissibility, it would be helpful and reasonable if it was explained to members that the amendment was admissible but had been rejected for whatever reason. I do not know whether we need to go so far as for that to be published, nor do I know what the practice is—whether the Presiding Officer writes to people or contacts them to advise.
One relevant point is that, when the selection takes place, the amendments from which the Presiding Officer selects have already been printed in the business bulletin. If they are admissible, they are printed when they are first lodged.
I know.
I am not sure what would be achieved by printing them a second time.
So the position at the moment is that an inadmissible amendment at either stage is neither printed nor referred to publicly again. It disappears into a great black hole.
That is correct.
At stage 3, admissible amendments are all printed in the business bulletin, but the marshalled amendments—those selected—do not identify those that have been rejected or the reasons for that. Are you telling us that the business bulletin should contain the admissible amendments that have not been selected, or all amendments, whether or not they are admissible?
What happens to amendments that are admissible at stage 3 but have not made it to the marshalled list? I seek clarification from Andrew Mylne: does the Presiding Officer inform members why their amendments have not been placed on the marshalled list?
No. All that happens is that the Presiding Officer agrees which amendments are to go forward to the marshalled list, which is then printed containing the selected amendments. It is possible for anyone who has been following the progress of the bill and who has seen the amendments that have been printed in the business bulletin simply to work out which ones have not made it on to the marshalled list.
What Christine Grahame is getting at is that, if an amendment is not selected, the Presiding Officer will not, from what you have said, come back and say, "Sorry, your amendment has not been selected and here is the reason why." If I contact him and say, "Why wasn't my amendment selected?" will he give me an explanation?
That would be a matter for the Presiding Officer.
But what does he do in practice?
In practice, I am not sure that he is usually asked. However, I am told that he does offer an explanation.
That is important, because members should have some kind of feedback. We are discussing how explicit and how structured that feedback should be.
There are a couple of other points, one of which is a point of clarification. Westminster has been mentioned—it should be borne in mind that there are two Houses at Westminster. It is true that, in the House of Commons, amendments are printed before it is decided which ones are to be selected. That includes some that are rejected on the ground that would be regarded in the Scottish Parliament as admissibility—they are not selected because they are not orderly. In the House of Lords, the process is different—only admissible amendments are printed, so the process there is more comparable to the one here.
The reason for the House of Commons system is probably that, as it has a selection of amendments at committee stage—equivalent to our stage 2—it makes sense to build the two filters, so to speak, into one. In other words, when the selection is taking place, some of the amendments are not selected because they are—in our terms—inadmissible. We have here only one filter—admissibility, which is decided on at stage 2. Some caution is required in making a comparison to Westminster.
The suggestion of printing in the business bulletin amendments that are not admissible could present one or two problems. There is the question of what the business bulletin is for. If we consider the various places where standing orders provide for things to be printed in the business bulletin, we see that the theme is that the business bulletin exists to provide information to members on the items of business for the Parliament. An amendment that has been rejected is not, by definition, an item of business for the Parliament. I am not sure on what basis it could be included in the business bulletin alongside matters that are to be considered or discussed.
The proposal raises some practical problems. Some of the cases that have given rise to this suggestion may have involved a decision on admissibility that was borderline or relatively close to where the line is drawn. However, there will also be cases where an amendment is rejected because it is clearly inadmissible—the amendment may be entirely irrelevant to the bill.
What would the clerks do in the case of a decision that was marginal? Would they say to the member, "You have done something that is not quite technically competent, but you can rework it", or, "You have strayed into an area that is not within the competence of the bill but you can approach it in another way"? Would a member get that sort of assistance from the clerks?
Absolutely. We see our role as very much being to assist members to lodge amendments that are workable. We would always look at how we could make an amendment admissible, if that was possible. Obviously, that might involve discussions with the member about options for achieving that. However, there will be cases where we think that the thrust of what the member is trying to achieve is inadmissible. If the case were clear, we would advise the member directly. Sometimes they take that advice without any further recourse. However, if there were anything questionable, the amendment would go to the convener or the Presiding Officer as the person with the formal right to decide. We would then advise the convener or the Presiding Officer accordingly.
Are there many inadmissible amendments?
No, they are unusual.
I realise that this might be invidious if I push it too far but, in your judgment, do inadmissible amendments generally stem from the member not appreciating the thrust of the bill and not seeing that there is an inconsistency, or is there evidence of showboating—lodging an amendment for posturing? You do not need to refer to any specific individuals or amendments.
I would not want to go too far in suggesting an answer to that question. Often, amendments arrive in written form, so it is difficult to assess the motivation behind them—I am not sure that it would be appropriate for me to try. There have been cases—this does not happen often—in which amendments have been proposed that were, in my view, far from admissible. If the rules were to be changed to allow inadmissible amendments to be printed in some form, that would have to apply across the board, which could give inappropriate prominence to amendments that, whatever merits they had in their own terms, did not have merit in relation to the bill. However, I am a little unclear about the purpose of printing them, unless it were done to lead to pressure to reconsider decisions about admissibility, for example.
One purpose of printing inadmissible amendments would be for those members of the public who are interested in the subject but who are not conversant with the procedure to see that, for example, an amendment that all fizzy water bottles should be blue and not green had been lodged but could not be considered. Otherwise, they might think, perversely, that the issue had not been addressed at all. In the interests of transparency and explaining to the public what we are doing, it would be helpful if inadmissible amendments were published. As for prominence, an appendix to the business bulletin would not rival J K Rowling in the publicity stakes.
If there are not too many amendments, it would not be a big deal to print them and to say under which standing order they have been refused. It would be helpful if inadmissible amendments were printed. Christine Grahame's point that that might be a tutorial for those of us who are labouring on future amendments is relevant.
The process for the selection of admissible amendments should be much clearer. That is not an issue at stage 2, because there is no selection. However, "Guidance on Public Bills" is not clear on what happens at stage 3. I have felt at Westminster that the tactic of discussing whether one will press an amendment to a vote in committee, because that might prejudice the chance of getting a vote on it at report, is awful. I am not interested in that sort of democracy and I do not want to import it here.
I accept that, if I move an amendment to the Transport (Scotland) Bill—on which I am working at the moment—and I lose the vote on it by 10 votes to one, it is reasonable that I do not get another go at stage 3. However, if I lose by six votes to three, it is reasonable that I should have a second shot. Annexe D to the report, on the selection of amendments, is prejudiced against amendments being rediscussed.
The report suggests that, as the Presiding Officer has to get business through, we have to do things in a rush. That is not what we are about. It is what the Executive is about—the Executive is all for rushing everything through—but I am against it. A slightly more leisurely approach, involving the consideration of more amendments at stage 3, would conform to my idea of democracy. I would like the procedures and the guidance to be tailored in that direction.
I agree with Andrew Mylne about preliminary discussions; I have had them with him about amendments that I have tried to lodge. That could still proceed. If the member comes back and says that they still wish the amendment to be lodged, let it be inadmissible, but let it be printed. If it is being said that there may be an abuse of process to make political points—such as by using an extreme version of an amendment for something that is not proper—it is open to the Presiding Officer to have a word with the member. There is an element of self-discipline in lodging amendments and it will soon be known if members are being naughty with the process.
With respect, borderline amendments will put clerks, advisers to conveners and the Presiding Officer on their mettle. If an amendment is on the borderline, we can all see which way the guillotine has fallen in the decision on whether it is admissible or inadmissible. That is important.
The function of the business bulletin was mentioned. There is information in the business bulletin about the progress of bills, for example, so I do not agree that inadmissible amendments fall outwith the kind of item that ought to be published in the bulletin.
To return to the Canadian model, the footnote to paragraph 13 of the report states that we do not have
"examples of the level of detail which might be provided".
It would be interesting to see what has happened with that model. I am not suggesting that we need much detail; we just need to know that an amendment is inadmissible and the relevant standing order.
I echo everything that Donald Gorrie said about selection. I accept that there may be problems with stage 2, but I would like the reason why admissible amendments are not selected at stage 3 to be published.
We are now redebating the issues.
I do not understand why there is a great need for inadmissible amendments to be published. If the Presiding Officer deems an amendment inadmissible under the guidelines, I do not see why, apart from for the purpose of undermining the Presiding Officer's authority, one would want such amendments to be printed.
As for admissible amendments that are not selected, we elected the Presiding Officer knowing that his authority would be brought to bear on such issues. A public display of undermining his authority would not be helpful in the chamber. It is always open to an individual, if clarification is needed, to seek advice from the Presiding Officer on why an amendment was not selected or why it was deemed inadmissible. I see no merit in pushing to print inadmissible amendments and to reprint admissible amendments.
There may be few such amendments at the moment but, if it is decided to print them, the system would be open to abuse, with severe resource implications. I do not know how many amendments we are talking about, but there may be merit in analysing amendments that have been deemed inadmissible or have not been selected to determine what we can learn. We have to be careful that we are not challenging the authority of the Presiding Officer. The current system should remain.
We are all over the shop—I disagree with elements both of what Donald Gorrie said and of what Janis Hughes said. There is no reason to print inadmissible amendments; if the amendment is inadmissible, that is it—off it goes. If anyone wants to know that members have proposed an amendment, they could ask and members would tell them, just as members might inform legions of constituents that they have raised issues one way or another, through questions or motions, for example. I entirely accept the point that, although the clerks will work hard to make a borderline case acceptable, if an amendment is inadmissible and cannot be made admissible, it should stay off the pitch.
I am much more interested in the argument about the non-selection of admissible amendments. Like Janis Hughes, I am concerned about challenges to the authority of the chair on that matter. It is not healthy to get caught up in disputes of that nature in the chamber. I am therefore tempted to think that there might be some merit in considering a formal response from the Presiding Officer to the members whose admissible amendments have not been selected, so that they know the reasons for the decision.
I am not clear about whether that should be done through publication in the business bulletin or by some other mechanism. A simple explanation from the Presiding Officer, such as a letter, might be the way to do it. The matter merits further consideration and we may need to take evidence—personally or in writing—from the Presiding Officer himself. Janis Hughes's idea of sampling some case studies is a good one, although the clerks will be relieved to know that I am not suggesting an exhaustive trawl through all our consideration of legislation. A sample would allow us to see what sort of grounds are given for rejecting amendments, so that we have a proper understanding of the situation.
The thrust of the report is to suggest that, if we want to consider the matter, we should do so in the round as part of our study of the legislative process. If the committee is agreeable, that is what I propose. However, I emphasise that the outcome should be to find a system that is fair to members and that does not lead to confrontation and challenges to the chair in the chamber over the selection of amendments at stage 3.
Nevertheless, we are talking about a legitimate principle. If are building a transparent and accountable Parliament, members are entitled to a proper explanation of why an admissible amendment has not been selected for debate. Our remaining work should focus on the details of that.
On the question of printing the inadmissible amendments, I would clearly lose by 2:1. I like to stick to my guns, but I am not fussy at the moment. Janis Hughes's suggestion that there should be some research was helpful, and I am glad that you support that idea, convener.
For admissible but unchosen amendments, would it be possible to add, at the end of the marshalled list, "The following amendments were not chosen", with their numbers? That would make it easier to trace amendments through the system. If you were particularly interested in amendment 49, for example, you would be able to see that it had not been chosen. That suggestion would not involve heaps of paper and lots of work and it could be done while we are still researching other aspects of the matter.
I entirely accept that the decision of the Presiding Officer or a committee convener is final, but Parliament has the power to give guidance. We should consider altering the guidance on the selection of amendments so as to allow more favourable consideration of a bill. The presupposition at stage 3 should be that an amendment should be taken, rather than that it should not be taken, which underlies much of what is written in parts 4.9 and 4.10 of "Guidance on Public Bills".
It might be helpful to clarify the guidance on selection. The purpose of that guidance is to make known the general criteria that the Presiding Officer has agreed to apply in every case of selection. Under standing orders, he has the power to select. If there were to be any review of the guidance under current procedures, that would be a matter for the Presiding Officer.
There might be a little lack of clarity about what the guidance currently provides for. It has been suggested that an amendment on which there has been a division at stage 2 is less likely to be selected. The wording may not be quite as clear as it might be, but that is not what it is intended to provide for. Annexe D states:
"The fact that an amendment was disagreed to on division at Stage 2 is less important than the nature of the issue raised, and the overall level of support expressed in debate should be the guide."
To the extent to which clerks provide advice to the Presiding Officer on selection, that factor would be very much to the fore. It would not necessarily be to the advantage of a member to have avoided a division at stage 2. If an amendment was debated at that stage and it was clear from the debate that it had little support, that might have the same effect as if it had been defeated fair and square on division.
I should also say that the Presiding Officer, in making selections, aims to be as generous as he can reasonably be. It is not for me to say how he reaches his decisions, but that is the impression that I get.
I was not challenging the Presiding Officer or committee conveners, and I quite concur on that point. That is why I have moved away from the idea of appeals. However, I think that part of the problem is simply not being told why something has happened. If we are moving towards a procedure by which the Presiding Officer could intimate to the member why an amendment, although admissible, has not been selected, could the committee also consider whether a convener or the Presiding Officer could advise a member as to why an amendment was not admissible? It would not be published, but at least members could be content with an explanation.
Sometimes that matter has been raised in committee. On the Justice and Home Affairs Committee, a member challenged the convener about why an amendment had been deemed inadmissible, but she was under no obligation to explain. I thought that that was inappropriate. It would have been better if there had been a formal way of explaining the reasons behind that ruling. I know that it can be done informally at the moment, but we should regularise it. Perhaps the convener could simply write to a member to say why their amendment had not been admitted. That would not be in the public domain, but at least the member would know.
That is a reasonable suggestion, which we shall consider with all the comments that we have heard. We need say no more at the moment on the matter. We have indicated that further work will be done on it, with the emphasis being on trying to bring greater clarity to all the parties involved in the process as to how those decisions are made. In the context of those discussions, we shall examine more closely what formal, published lists there might be of non-selected amendments. Without prejudging whether that will happen, we shall explore the issues more thoroughly and take evidence from the Presiding Officer, the business managers, their deputies and all the usual suspects.