Good morning, colleagues, and welcome to the 10th meeting in 2004 of the Procedures Committee. I hope that members have their distance glasses on so that they can see everyone else this morning. I apologise for the meeting being in the chamber—it is not my favourite place for committee meetings, but I am sure that we will manage.
When you were making your opening remarks, convener, it occurred to me that today's meeting gives me the opportunity to sit in a part of the chamber where I do not usually sit—thank you for giving me that experience.
I assume that all members have a copy of the memorandum, which was a late paper. As we have done with previous witnesses, we will consider the bill process stage by stage. When asking questions, members may wish to draw on the note from the clerk about the issues that have been raised in the inquiry to date.
The Executive memorandum welcomes the idea of early briefings at the pre-legislative stage from the Executive for committee members. What does the minister think of the idea of widening that out and allowing committees to take limited soundings from relevant organisations at the pre-legislative stage? I realise that we do not wish to create a stage 0.
In a sense, an earlier hurdle must be got over. It is important that committees become informed as quickly as possible on the issues in proposed bills. When I gave evidence previously, I mentioned the importance of pre-legislative scrutiny and argued that committees can and should engage earlier with the Executive, particularly when a consultation is out. At that point, it is important that committees get involved and engage. We are happy to provide informal factual briefings for committee members. Some ministers and officials already do that at the request of committees, which works well. After that stage, it is obviously up to committees to decide what evidence to take and how they want to handle stage 1. The purpose of the pre-legislative stage is for committees to look ahead to see what is coming, to plan for that and to become as well informed as possible.
Will you tease out a bit more how you see the relationship between pre-legislative briefings and committees' stage 1 investigations?
The pre-legislative part must be about information, whereas stage 1 is more about scrutiny. At stage 1, committees take evidence and go through the process that the Parliament has laid down. Although the two are distinct, they are obviously complementary and should be considered in that way. Both parts are important, but stage 1 is the more formal element, which is contained in standing orders—it is the vital bit.
Some witnesses have expressed the concern that, if committees got involved earlier, that would tie them in too much with the Executive's consultation, which might threaten the independence of their later investigations. Is that a problem or do you see the pre-legislative work as different and not just another consultation that runs in parallel with the Executive's? Obviously, the committees would determine the structure of the work.
It would be for committees to determine their work load, as they always do. I am not concerned about committees being too close to the Executive on policy matters—that has not been my experience to date. The relationship between the committees and the Executive is good, but it could be even more productive if early engagement took place and if everyone understood from the outset the intentions and how progress is to be made. Pre-legislative work is excellent; it does not compromise committees' independence in any way and it contributes straightforwardly to better scrutiny of Executive proposals, because committees are more informed about, and au fait with, those proposals. Such work can only improve scrutiny and therefore make the committees' work more valid and searching.
Do you feel that, if a committee got involved in the issues at an earlier stage and in whatever way it saw fit, that could smooth the stage 1 process and make stage 1 scrutiny more effective?
Yes, with the obvious small caveat that, at the earlier stage, a lead committee will not necessarily have been identified, although it is usually fairly clear cut which committee will be the lead committee, so earlier involvement should not be too difficult in that respect. There might be a problem with justice legislation, because there are two justice committees and we might not know which would be the lead committee. However, those two committees would know from their work programmes which would be the likely candidate to get the next bill, so even in those circumstances earlier involvement should be relatively straightforward.
One of the concerns that committees have expressed to us on pre-legislative scrutiny is that, although pre-legislative involvement might help a committee to influence a bill's shape, if a committee was too involved at that stage its independence might be compromised in the stage 1 scrutiny. What is the Executive's view of the balance between a committee influencing a bill's shape at the pre-legislative stage and retaining its independence for effective scrutiny?
That is a judgment call for the committees, which would have to have regard to whether they felt that they were being sucked into some kind of arrangement. However, I am not aware of any committee in this parliamentary session or in the previous one that would have or would have had difficulty in maintaining its independence while becoming involved in a bill at a much earlier stage. Such involvement can only help to influence a committee's approach to a bill and add to its ability to scrutinise it.
We move on to questions on stage 1.
The outstanding question concerns the timing of the publication of the stage 1 report and the stage 1 debate. Occasionally, there is little time to examine the report ahead of the debate. I would be interested to know what the implications would be if we were to say in standing orders that the report had to be published at least a week before the debate.
I suspect that, for the Executive, that might be helpful on occasions, because the earlier that we see the report, the easier it is for us to deal with what it contains. It might be problematic if there was a reason why a bill had to be passed by a particular day and the timetable had been adjusted to take account of that, but there might be benefits in the suggestion. Michael Lugton might like to add something from the Executive officials' point of view.
From our point of view, a gap between the publication of the stage 1 report and the stage 1 debate would be helpful, because it would give us more time to prepare and to brief the minister. On the other hand, as the minister said, the loss of flexibility might, in some circumstances, cause difficulty if there was general agreement that a bill needed to be passed fairly quickly. If you were to change the standing orders, you would have to take into account the possibility of suspending the rule in particular circumstances.
Several organisations, such as the Scottish Council for Voluntary Organisations, the Scottish Churches Parliamentary Office and the Convention of Scottish Local Authorities, felt that there was not enough time at stage 1 for committees to get responses from anyone other than the most well-equipped and well-resourced bodies. They felt that there should be more time for committees to conduct a thorough investigation and to get more written evidence at stage 1. Have you any views on that?
I am conscious that some of the bodies from which you took evidence suggested that there should be a 12-week consultation at stage 1, but others have said that that is not required. The response that you get to that question will reflect the type of organisation to which you are talking at the time—smaller organisations or organisations that meet less regularly would have a greater problem than others. That takes us back to the argument about pre-legislative scrutiny: such scrutiny would mean that the timescales would be extended, that people would be advised of a bill sooner—they would know that it was coming up—and that information could be gathered. Perhaps we can solve the problem that you highlight if there is a willingness to engage in pre-legislative scrutiny, because, when committees have engaged in bills at an earlier stage, they and those from whom they took evidence have found that to be worth while.
The Subordinate Legislation Committee has suggested that it might be beneficial for the memorandum on delegated powers to become one of the required accompanying documents for bills, rather than being, as at present, part of the protocol. What is the Executive's view on that?
I was disappointed by the letter on that issue that your committee received recently, because it seemed to me that the Subordinate Legislation Committee had changed its position and was now proposing something a bit more prescriptive. We have no problems with the suggestion that the memorandum that we send should, where appropriate, be a formal requirement. However, it could prove to be burdensome if the memorandum was to become an accompanying document, because it would take on a different significance—the memorandum would require to be submitted to the Presiding Officer as part of the pre-introductory process and then to be submitted formally on the introduction of the bill. I must admit that I have some concerns about the proposal.
Could you expand on those concerns a little more? Given that the Executive produces the memorandum anyway, what are the concerns? Are they simply about the timescale that is involved?
Our concerns are very much to do with the timescale. The parliamentary authorities' agreement to the list of provisions in a bill that confer the power to make subordinate legislation is sometimes not available until shortly before introduction. That list forms the basis on which the Parliamentary Bureau refers a bill to the Subordinate Legislation Committee and it would be odd if the memorandum had to be lodged as an accompanying document on introduction before the Parliamentary Bureau had referred the bill to the Subordinate Legislation Committee.
Should the process in circumstances in which the Executive has published a draft bill be different from those in which it has not? For example, should a committee take more time to consult if a draft bill has not been published, or should it be the norm that a draft bill is published?
We try to publish a draft bill—and often do—whenever possible, but we would want to retain some flexibility on that to allow us to take account of differing circumstances.
We move on to questions on stage 2.
Most members agree that the pace at which they have to work during stage 2 is great—they thrive on it and enjoy it very much—but others find it burdensome. Does stage 2 put unreasonable pressure on ministers, the committees and the organisations that wish to be involved in the process?
I am not sure that I would call it "unreasonable pressure", but I suppose that it depends on whom we are talking to. As you say, some members seem to thrive on the stage 2 process and seem to find it a good discipline to observe. As I mentioned in my earlier evidence, if a committee convener feels that the timetable is too tight, it is open for him or her to go back to the Parliamentary Bureau to ask for an extension of time. I am not aware of any occasion on which such a request has been refused. I think that the bureau will always be sympathetic towards the case that a convener puts explaining the problem, why extra time is needed and how much extra time might be needed. I think that we would always be open to such consideration, because we appreciate the pressures that are on committees.
The Executive has adopted the practice of lodging amendments five days prior to committee meetings. Some people have suggested to us that we should look for committee amendments or members' amendments to be lodged earlier than they currently are, as organisations that involve themselves with the process can face many problems. Can you see any difficulties with the timetable for lodging amendments being changed in that way?
Do you mean for people other than members of the Executive?
Yes.
Ministers and Executive officials would obviously be given more time to consider proposals, so, off the top of my head, I do not think that the suggestion would be problematic. Andrew McNaughton might want to add something about that.
Our view is that it would be very helpful if the current deadline of two days was extended to three days. That would allow us more time to consider all the amendments and it would allow the clerks to get together the marshalled lists and groupings.
I think that I suggested that when I was previously at the committee.
Yes.
Part of the problem is that the current lodging deadline does not really allow everyone to be fully aware before the weekend prior to a meeting of what amendments might be coming up, as the final marshalled list is often not published until the Monday, or even the Tuesday. Would it be helpful if, under standing orders, the lodging deadline was such that the marshalled list would be published in the Business Bulletin on the Friday, so that people would be aware before the weekend of everything that was coming up for debate in the following week?
We should recognise that parliamentary committees meet on different days, so there would have to be appropriate adjustments to take account of that. That is the only caveat that I would add, but the matter is really one for this committee.
I am assuming that a committee would meet on a Tuesday or a Wednesday. On that basis, I was trying to suggest that perhaps having everything published on the Friday would be reasonable.
Obviously, if a committee meets on a Tuesday, the following Friday is slightly further off than if it meets on a Wednesday. As I say, that is the only caveat that I would suggest.
I would like to elaborate slightly on the point that the convener has made. If a marshalled list was to be published on a Friday morning for a Tuesday committee meeting, that would mean a four-day minimum deadline for amendments. What do you think about a four-day minimum deadline, or even a five-day minimum deadline—which some organisations from which we took evidence suggested—rather than a three-day minimum deadline, which the Executive's memorandum suggests?
Obviously, that would not be as much of a problem for the Executive as it would be for committee members, who would have only until the close of business on the Thursday to lodge their amendments to be published on the Friday. I would have thought that that would be more of a problem for committee members—and other members—who wish to lodge amendments than it would necessarily be for the Executive.
One suggestion that was made to the committee by at least one body that gave evidence to us was that amendments should be accompanied by some form of policy note or note on the purpose of the amendment. Does the Executive think that that would be helpful? I refer not only to Executive amendments, but to other amendments.
Possibly. However, the problem would be that, by and large, the people who would write the amendments would be the people who would have to write the explanations and that process would be fairly time consuming. Bringing together the rationale and all the arguments would be a fairly onerous job in itself, particularly if lodging deadlines were tightened up. There might be problems if the deadline for submitting an explanation was the same as the lodging deadline. The proposal might therefore be problematic. The Executive takes the need to explain what it is trying to do through amendments fairly seriously, but I would be concerned about making the proposal a formal part of the process. We do and we will provide as much information as we can, but always doing that by the lodging date might be a problem.
You will be aware that committees sometimes require to meet more than once a week, which means that separate lodging dates, separate groupings lists and separate marshalled lists are required. What would the Executive think about there being only one deadline for lodging amendments, one marshalled list and one grouping list when there is more than one committee meeting a week? I know that that approach would be helpful to committee members.
That would make sense. The process would be clear—people would understand when things are expected to happen and there would be no dubiety. Such an approach would be useful.
I return to the question that I asked about policy notes or purpose-and-effect notes. The Executive produces purpose-and-effect notes for its amendments, but they are not always distributed to all members—I presume that they are primarily for the minister's benefit. Would it be helpful to have them more widely distributed or publicly available so that people could see what the purpose of amendments is and what their effects would be?
Such notes are produced for the minister's information at briefing and I suppose that deciding whether to disseminate them is up to the individual minister. However, that is a different matter from what I understood you to be asking about in your previous question. I understood that you were asking for a more formalised document that would be much more time consuming to produce than cause-and-effect notes.
In our evidence, the idea was suggested that there should be an opportunity after stage 2 for the committee to review the bill that it has amended in order to give members a chance to consider the amended bill in its totality. Would that be useful in enabling a better stage 3 and more understanding of what had happened, particularly if stage 2 had been rushed?
If committee members are involved with a bill from the pre-legislative stage on through to stage 2, they will have a fairly clear idea between stages 2 and 3 of what will happen if particular amendments are passed and the effect of those amendments. At stage 3, members make their call about what they think about the bill. Therefore, I am not sure that feeding what you suggest into the committee's cycle would help.
Is a longer gap between stage 2 and stage 3 required in order to enable a committee properly to consider matters?
Not necessarily. When committees agree to amendments, they are pretty clear about what those amendments will do to the bill—in fact, that is usually why they want to make amendments. I do not think that there would be a great call for what you propose.
What about the Finance Committee having a chance to consider the financial implications of a bill that has been amended at stage 2?
I hope that the Finance Committee would keep an eye on bills that were going through and would consider what was being done. Amendments that are passed at any stage could have an impact on the financial implications of a bill, so I am not sure that such a proposal would necessarily be helpful at that stage.
I would like to follow up that point. You will be aware that the Auditor General for Scotland expressed concerns about the potentially substantial financial implications of an amendment that was passed at stage 2 of the Standards in Scotland's Schools etc Bill. Given such concerns, is there a case for the publication of a revised financial memorandum, for example, to take account of any amendments at stage 2, so that the Parliament will be fully aware of the bill's financial implications before stage 3? I presume that that would require the Finance Committee having an opportunity to consider that revised financial memorandum.
Presumably, you intend that the document would be produced by the person who drafted the amendment, regardless of whether that amendment was lodged by a minister or by another member. That might create difficulties and might not be possible. Michael Lugton may want to add something. He has more experience of financial memorandums than I have.
I am not sure that I can add anything useful to what the minister has said. If an amendment has financial implications, one would expect those implications to be debated in full during consideration of the amendment. To require that an additional account should be made of the financial implications of the amendment would cause me difficulties in procedural terms.
Andrew McNaughton has helpfully pointed out to me that the Audit Committee is considering the issue. It may be possible to examine the matter in more detail at a later stage.
When the Parliament agrees to the financial resolution on a bill, it does so on the basis of the financial memorandum that accompanies the bill as introduced. The resolution does not deal with what happens at stages 2 and 3 of the process, so the Parliament has agreed to a resolution that may not take into account fully the financial implications of the bill. That may be one reason for considering a revised financial memorandum—or even a revised financial resolution—at stage 3.
It would be extremely unusual for the Executive to lodge an amendment during consideration of a bill that would add greatly to the bill's financial implications. I suspect that that happens when another member is seeking to amend a bill. In such situations, the minister would take every opportunity to point out the financial implications of the amendment to the committee that is considering the bill. I suppose that the issue could arise at either stage 2 or stage 3.
We have talked about revising the financial memorandum. However, the explanatory notes that accompany a bill on its introduction may relate to a bill that is quite different by the time it is amended at stage 2. What is the potential for revising the explanatory notes at that stage, to take account of the amendments that have been agreed to, if they change substantially the policy direction of the bill?
At stage 2, the minister would explain the purpose of Executive amendments. It is to be presumed that members would also argue their case when debating amendments at that stage. As you said, the bill as introduced is often very different from the bill that is passed. However, the person who writes the financial memorandum or the explanatory notes can work only on the basis of what is introduced. What happens later must be addressed by ministers or other members in charge of bills when they speak to committees or Parliament.
Would it be administratively difficult to revise explanatory notes? Members of a committee that has considered a bill will be aware of what amendments have been agreed to and of their impact but, at stage 3, members in the chamber who have not been involved so closely in that process may still be using the explanatory notes. For that reason, revised explanatory notes would be helpful.
It would be pretty difficult to produce revised explanatory notes at stage 3. Part of what the minister must do is explain the purpose of an amendment that they have lodged or, if the amendment has been lodged by another member, why it should not be agreed to. That is the point at which the purposes and effects of amendments are explained and the issues that are raised in explanatory notes covered. We must rely on ministers for the provision of such information.
I accept that it would be difficult for the Executive to explain the purposes and effects of amendments that were lodged by non-Executive members and that it may not support. However, I agree with Richard Baker that it would be helpful for members and the general public if the explanatory notes were updated. As you said earlier, when ministers move amendments they have notes that advise them of those amendments' purposes and effects. Given the technology that we have for cutting and pasting, it might be easy for the explanatory notes to be updated for stage 3.
I do not think that it would be easy. The notes on the purposes and effects of amendments are discursive—they read like a question-and-answer document. Revised explanatory notes would have to be much more formalised; they would have to explain issues in much more detail and would have to address the jargon of the bill to indicate what was being done.
Do colleagues have questions on the stage 3 process?
My point relates to the previous question. At stage 3, many members are fairly new to the bill, because they have been concentrating on other matters. For that reason, they rely a great deal on the information that appears in the explanatory notes. If the bill has changed fundamentally and a member is relying on the explanatory notes, consideration of amendments at stage 3 is much more difficult. Back benchers believe that at stage 3 information needs to be provided in a much clearer way, so that they can consider amendments effectively. There is a need for the Executive to produce something—either revised explanatory notes or another document—that would allow members to assess more adequately the impacts, causes and effects of amendments at stage 3, when the timescale is very tight.
It would be difficult for us to produce revised explanatory notes, but I am happy to consider the issue further. I could send the committee a note indicating whether that would be possible and whether there is another mechanism that would be easier to use.
I suppose that it is increasingly difficult for you to timetable stage 3 debates, because you do not know who wants to speak, when they want to speak and what they want to speak about. I know that best guesses are made about such issues. It has been suggested that it would be useful for conveners of lead committees on bills to be consulted on timetabling, because they are aware of the debates that have taken place at stage 2 and may be able to identify pressure points for future debates. Might you consider that suggestion in your on-going discussions? I am proposing not formal consultation of conveners, but approaching them informally.
We often carry out such consultation. We have regular dialogue with the clerks to committees to find out what they think about timetabling. We often ask conveners about that, too. As I am sure Mark Ballard will confirm, at meetings of the Parliamentary Bureau I make a point of asking business managers whether members from their groups have indicated that there are particular pinch points or hot issues about which we need to be aware, so that we can ensure that the timetable for a stage 3 debate is right, or as close as possible to being so. We try to take into account all the information that is available to us, not just information from one source. Often, when I have received information from the clerks and from other business managers, I speak to the convener of the lead committee to see whether their opinion is the same and use them as the final arbiter before I make a formal proposal. That is the approach that we take with every bill. I am happy to agree that such consultation is important.
One problem that members often have when deciding whether they wish to speak on an amendment or group of amendments is that they do not, until the morning of the debate or immediately before it starts—especially if the debate is on a Thursday morning—know what the groupings are. You have suggested that the deadline for lodging amendments should be changed to allow earlier publication of the marshalled list. Would earlier publication of the list of groupings also be helpful? That would ensure that there was more time between publication of the list of groupings and determination by the bureau of the timetabling motion, and it would provide an indication of who was likely to speak on each group and how long consideration of each group was likely to take.
Earlier indication of the groupings would certainly be helpful. When you mentioned the marshalled lists, it occurred to me that it might be quite difficult to provide explanatory notes until we had seen the marshalled list, because we would not know the consequences of amendments. When I write to the committee, I will expand on that point if I think that it is relevant—off the top of my head, I think that it might well be.
The committee has heard a more general concern about the way the marshalled list and groupings operate. There is a feeling that the Parliament is not operating in a particularly transparent way. The procedures can be confusing for members, so I do not know what it must be like for people who try to follow the process from the public gallery or the television. Should consideration be given to finding a more transparent way of operating stage 3 debates? A different process might take more time but it might be more comprehensible to people who had not followed the bill through its committee stages.
Such a process would undoubtedly take more time—that is a given. I am not sure how we could make the system more transparent than it is. The process is not easy and it must be done in a particular way if it is to work. It is hard to make a judgment without seeing proposals for an alternative system. I am all for trying to make processes as easy to understand and as open and transparent as possible, but the process that is in place was arrived at after a lot of consideration and, ironically, it would probably be difficult to make it more transparent, open and easy to understand. It is one of those processes in which we must get into its rhythm to make it work; I am not sure whether we could do that in a way that would be as inclusive as we might all want it to be. If there is a way of doing so, I will be happy to consider it.
One comment that was made to the committee was that speaking times are often curtailed, so if a member has only a minute to speak to an amendment it can be difficult for people to understand the amendment and its consequences. If more time was allowed for members to speak to their amendments, stage 3 would take longer but might be much more comprehensible to the outside world.
I agree about speaking times, but I disagree with your conclusion. We need to give the Presiding Officer more power over speaking times. There are no limits as such on speaking times in stage 3 debates and members sometimes speak for relatively long periods when it is not necessary. It might be more useful to allow the Presiding Officer to intervene on such occasions. We frequently find ourselves in a situation—or rather, we have done so occasionally; it does not happen frequently—in which an amendment cannot be spoken to. That concerns me and I do not like it to happen although I am conscious that earlier sections of a bill may have generated many speeches, which is reasonable. However, some of those speeches may have been relatively lengthy and the same ground may have been gone over more than once. The Presiding Officer could have a greater role in managing the time for a particular grouping, which would be helpful for everyone.
Should the Parliamentary Bureau be more flexible about scheduling longer periods for a stage 3 debate? That would make the Presiding Officers' job easier by giving them more time to juggle than they might have in a debate that lasted only one day.
We could try allowing the Presiding Officer to juggle within the context of a debate that lasted one day, or a debate that lasted just a few hours—as is sometimes the case, depending on the size and complexity of the bill. We must also juggle the requirements of members to be in other places for part of their parliamentary time. Passing legislation is Parliament's most important job, but we must take account of the fact that members have other ties and responsibilities. The Parliamentary Bureau has always striven to be clear that when it thinks that a debate will run on into a Thursday evening, for example, members are given as much notice as possible, so that they can deal with other responsibilities that they might have. If we try to use a bit more discretion about speaking times we might find that we do not need to extend the overall length of debates.
Sometimes a bill is amended quite heavily at stage 3. As you know, it has been argued that there should be a gap between conclusion of the debate on amendments at stage 3 and the debate on the motion that the bill be passed. Has the Executive encountered any problems at that point that meant that it needed time to consider its position, or have there in practice been no difficulties in considering the impact of amendments during the stage 3 debate?
There is a mechanism whereby the member in charge of a bill, be that the minister or a back bencher, can propose that the bill be reconsidered, so that has not been an issue for the Executive. The procedure has not been required yet—I do not know whether that is just luck or whether it is evidence that the scrutiny process is effective. I think that that procedure would be used only when a bill had been changed out of all recognition or when legislation would be difficult to sustain or unworkable.
The Subordinate Legislation Committee's most recent memorandum suggests that if significant changes are made to subordinate legislation provisions in a bill at stage 3, there should be a delay in order to allow that committee to consider the new provisions. What is the Executive's view on that?
When it has been necessary to supply a supplementary memorandum, we have always attempted to do so as quickly as possible. I do not think that the Subordinate Legislation Committee needs to have such a role in the process. If the Procedures Committee wants to consider the suggestion further, I will probably want to discuss the matter more with you, either by letter or through oral evidence. At this point—without having spoken to the Subordinate Legislation Committee—I do not see what the effect of the suggestion might be or how it might better enable that committee to deal with a bill.
Is the Executive aware of bills in which subordinate legislation provisions have been substantially or unexpectedly changed at stage 3, other than after its having being agreed with the lead committee or indicated in a supplementary memorandum that you produced? I am not sure whether that has happened.
I would not want to say that it has never happened, but I do not think that my officials or I can recall such an occasion off the tops of our heads. Again, if the committee wants to pursue the matter, I will be happy to discuss it further.
If there are no further questions, that concludes the evidence-taking session. I thank the minister for coming along again to give us evidence that is helpful to our inquiry and I hope that over the next few weeks the committee will form views on the various issues that the inquiry has raised. We look forward to receiving the note that the minister promised us on the viability of preparing revised explanatory notes in advance of stage 3—that will be helpful.
It would be useful for me to reflect on what the minister has said and perhaps to e-mail my comments by the end of business on Thursday.
Yes—that would be fine.
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