Procedures Committee,

Meeting date: Tuesday, May 9, 2006

Official Report 184KB pdf

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Members' Bills

Agenda item 4 concerns members in charge of members' bills. From our previous discussion of the topic, two main issues emerged. The first was that substitutes are allowed to attend only a whole meeting or not at all. It was felt that we could propose a new standing order that said that when the member in charge of a member's bill is a member of the committee to which the bill has been referred, a substitution can take effect for the committee's consideration of that bill and the member in charge can attend the committee's discussions under other agenda items. If that involves appointing a substitute—I think that it does—how would the substitute be nominated?

Under option A in paragraph 5 of the clerk's paper, the member in charge of the bill, together with his party, would nominate the substitute. Should we allow that, or do we want the bureau or somebody else to nominate the substitute? Personally, I think that the person in charge of the bill should have the right to nominate the substitute, but colleagues might not share that view.

I fundamentally disagree with that position. The committee's job is to judge the bill impartially. With the best will in the world, if I had the right to nominate a substitute to discuss my bill, I would nominate somebody who I knew would give my bill the most positive reading that it could get. I do not think that that is what the Parliament's committee system is about.

There are a couple of things here. I assume that paragraph 5 was written with the intention that there will be a further rule change to allow those who are mentioned in option A to substitute for a particular item of business on a committee's agenda. If that is the case, I see no reason why there should be a threshold of political parties with "5 or more members". Presumably, if it is appropriate for parties to put up a substitute for one item of business, it is irrelevant whether the party has four members or 10 members. Option A is probably the best option, with the proviso that it refers to the substitute attending the committee for the particular item on the member's bill.

That leaves us with the question of what would happen if the member was an independent. That seems to be the question that is exercising us the most. There are dangers with both options in paragraph 6. There is a danger with allowing the member to pick a substitute, because that would not happen within a group—the group would reach a decision on who the substitute should be. If the member chooses the substitute, they are unlikely to pick somebody who is wholly opposed to their bill, for obvious reasons. They are likely to choose somebody who is in favour of it. I am not saying that members of political parties would be immune from doing that, but there is a greater risk in the case of independents.

I note the comment—in the footnote to option B—that the d'Hondt system is not used to decide the balance of members on committees. However, there is a balance of members. As far as I know, there is no committee in the Parliament that does not have an Executive majority. The Parliamentary Bureau should not be allowed to create a situation whereby the balance between Administration and Opposition changes. I think that Karen Gillon suggested that, if I remember rightly. I think that that is what she was driving at.

Forgive me if I did not get the technical terms right. I have been corrected by the clerk.

We accept your apologies.

There is a way forward, as long as we understand that the balance in committees means the balance between members of the Executive parties and Opposition members. We could go with option B in paragraph 6, with that proviso somehow woven in, or we could allow the independents group to nominate its own substitute, if we recognise such a thing as an independents group as opposed to a political party.

That assumes that all independent members are members of the independents group.

Yes. That may or may not be the case. Whether the wording in paragraph 5 is "political party" or "political grouping" might be an important point. However, if someone is an independent but is not part of an independents group, how would they select a substitute anyway?

There is a difference of opinion over whether the party, group or whatever should have the right to nominate substitutes. Is that—

I think that there is a difference between you and us, convener.

Do you agree with what Bruce McFee has just said?

I am a member of the Enterprise and Culture Committee. If I introduced a bill that would change the law in relation to corporate homicide, I would give up my place on the committee during the times when the committee discussed the bill. I am on the committee as a nominee of the Labour Party, so the Labour Party would nominate someone to replace me. I am not on the committee because everyone thinks that Karen Gillon knows a lot about enterprise—that is not how committee members are chosen. The Labour Party would have the right to nominate my substitute for the agenda items under which the bill was discussed. In the same way, if my son is ill and I cannot attend a committee meeting, the Labour substitute can take my place and attend the whole meeting.

They are not a Labour substitute.

They are.

No—they are a substitute who was suggested by the Labour Party and approved by Parliament.

But they are a member of the Labour Party.

Yes.

The person can act as a substitute only for members of the Labour Party.

For you.

No—for all Labour members on the Enterprise and Culture Committee. I understand that if we change the rule to allow substitution for a member in charge of a bill that is being considered by a committee, the substitute would be allowed to attend only for part of the meeting and the member would attend for the rest. I would not be averse to allowing the same substitution rule to apply to parties with fewer than five members.

Do you suggest that, under the proposed new rule, the substitutes for parties that already have nominated substitutes should be those persons, or could the parties nominate new substitutes?

If we change the rules on substitution to allow parties with fewer than five members to have substitutes, they will have to nominate those substitutes in advance, in the same way as happens now. Those persons would be the substitutes for particular committees. There would not be hand-picked substitutes to discuss particular issues.

Would the provision apply to all parties?

Absolutely.

That proposal is right, as it takes away the element of selection by hand. It is fine for the general substitution rules to be open to parties with fewer than five members. The only question that remains is whether we would treat the group of independents in the same way as we would treat a political party. Would the rule be to allow any political party or group with five or more members to nominate substitutes? That would eliminate all but one potential case.

There is one slight difficulty with the proposal. When the Parliament nominated committee members, the independent members who were nominated to some committees were not part of any group. The independents group was established after committee membership was determined. Jean Turner, for example, was nominated to the Health Committee because she was a general practitioner with particular expertise. She was not nominated as a member of a group with a right to nominate.

I understand that, but I am dealing with the present reality.

We are also dealing with the situation that may exist in a year's time. We could have independents who are not members of groups.

That is the category with which we still have to deal.

Do we assume that it is impossible for an individual member to have a substitute?

It is not impossible for the committee to have a substitute member so that the full complement of members can decide on a piece of legislation.

Surely an individual nominating a substitute, even on a long-term basis, is no different from your standing down from the committee and nominating me as your substitute.

I would not be allowed to do that, because I am a member of a political party.

By suggesting that an individual member has the right to nominate a substitute, you are putting them in that position.

I am not suggesting that an individual member should have the right to nominate a substitute. I am suggesting that, on the rare occasions on which the member who introduces a bill is a member of the committee that will consider the bill but is not a member of a political party and therefore does not have the right to a substitute—and would not have that right under the new rules—the Parliamentary Bureau should nominate a substitute who will not affect the Opposition-Government balance on the committee. That approach would allow the committee fully to consider the member's bill, because the committee would have the number of members that the Parliament had deemed necessary for it to carry out its work.

Do we agree that the rule would apply to the smaller parties and to a group of official independents?

That is the question.

I favour such an approach.

Let us set aside the independents for a moment. A political group of a recognised size would have the right to appoint a committee substitute, as currently happens, who would attend just for agenda items on the bill. The usual member would take part in discussions on other items. The bureau would nominate the substitute for an independent who was not part of a group.

Is there a difference of opinion about whether five independents constitute a group? They are accepted as a group for the purposes of the bureau, so I would have thought that they could be accepted as a group for the purpose that we are discussing.

What are the implications of saying that the independents are a group that has the right to have committee substitutes? Would the approach confer on the group the right to have members on a committee?

No. There is no socialist on the Procedures Committee, for example. There is no right to be represented on every committee—

Excuse me, convener, but there are three socialists on this committee, perhaps more—

We could have a good debate on the matter—but not today.

There are no Trotskyists on the committee, but there are certainly socialists.

There are lots of socialists of the champagne variety.

Like you?

We are not conferring new rights on groups to be represented on every committee. That would be nonsense.

The matter should be investigated further.

With all due respect, the suggestion is idiotic and no one would pursue it for two minutes.

I think that the clerk is suggesting that there might be merit in giving the matter further consideration.

A rule that a committee member who introduces a member's bill has the right to a committee substitute would not confer further rights to do with representation on all committees.

We should consider the potential consequences of such a rule, because it would confer a status on the group of independents that it does not currently enjoy in the Parliament. I am not suggesting that anything would change, but we should at least explore the matter briefly.

Karen Gillon is overplaying her hand. We are talking about a group of individuals who happen to be independents. Who knows what will happen in 2007? We might have a group of sun worshippers or even readers of The Sun, if such people exist. If we take away a member's right to take part in certain committee business, we must devise a method of substitution. Given that there is an approach to substitution for political parties, it would be eminently sensible to apply that approach to groups. If we do not do that, we will be treating a collection of individuals differently because they call themselves a group rather than a political party. It is logical to treat a group in the same way as we treat a political party in the context of committee substitutes—it is for members to decide whether we should consider the approach in other contexts, but I do not think that anyone is suggesting that we do so. If we take that approach, only the independent independent's position will remain to be resolved, and only the bureau can resolve that matter. We could wrap up the discussion about committee substitutes with that. However, if we are being told that that is a difficult approach, I am in favour of retaining the status quo.

I am not suggesting that it is difficult; I am just suggesting that there may be unintended consequences and that it would be useful to find out if there are. I am not necessarily averse to the position that Bruce McFee is advocating in saying that the independents group should be allowed to have a substitute; I am just asking whether that would confer on the group a status that it does not currently have in the Parliament and, if so, whether that would have consequences elsewhere. I also think that the bureau should have the right to select a substitute for the independent independent member, as long as that would not affect the Government-Opposition balance on the committee.

As far as I can see, the only disagreement is about whether the independents as a group have the right to nominate a substitute. We are not arguing about the smaller political parties or about an independent independent member: we have agreed how they should be dealt with. However, Karen Gillon seems to be concerned about whether we are creating something. I would have thought that, as the independents group is now recognised as an organisation by the bureau, it is a bit late to be worried about that. Nevertheless, in the interests of progressing, can we agree that we have agreed on what we agree on and that the clerk should write a paper on whether there would be any untoward effect of allowing the independents group to nominate a substitute?

We are in danger of labouring the point about the independents group by looking at what the group is just now and making decisions on that basis. That would be wrong. I suggest an easy word change in option A under paragraph 5—the clerk can go away and study it to death to see whether it has any ramifications for the price of mince or anything else. I suggest that we add to the wording

"in order to allow any political party"

the phrase "or recognised group". That would apply to any members that the Parliament recognised as a group.

The point that Bruce McFee makes is an important one. A group has a defined meaning within the rules: it is a group that is formed for the purposes of getting a representative on the bureau and it must consist of five or more members, who can be members of smaller political parties or independents. It is important to ensure that any rule change will work in any of the situations that might arise.

Currently, all the members of the independents group are independents or members of single-member parties. However, a situation could arise after the next election—I am not making a political point—in which the Greens and the Scottish Socialist Party each had fewer than five members in the Parliament but had enough members between them to form a group. That would, effectively, be a two-party group and they would get a representative on the bureau as a result of that.

A difficulty might arise when the issue overlaps with the point about who the member in charge is. The committee has already agreed that a smaller party—one with fewer than five members—would have the substitution rule extended to it. If the Greens and the SSP each had fewer than five members, they would already be covered by that. Allowing the group that they formed also to be covered would muddy the waters, as there would be the possibility of the substitute for a Green member in charge being an SSP member within the group. It needs to be clear which option the committee would support in that situation—whether the member-in-charge substitution should be limited to the party of the member in charge or whether it should be extended to all the members of the group of which they are a member.

John Swinburne is a member of a political party of one. Who would he nominate as his substitute?

The suggestion is that the rule would apply to parties of two or more members.

So, we are asking the clerk to write an additional paper on the question of small groups.

There is another simple way in which to resolve the difficulty. We could extend the substitution rule to political parties and have a rule that says that the bureau would select a substitute for members in charge who are not members of political parties in a way that would not affect the committee's Government-Opposition balance.

That idea has been suggested.

Yes. I think that that would be an easy way to resolve the difficulty and make the process simple in the rare and extreme circumstances in which such a substitution would be necessary.

If the bureau were to nominate somebody that the independents group found to be unsatisfactory, would that group have any redress?

Independent members of relevant committees this parliamentary session were not put on those committees because they were members of the independents group; they were put on the committees because, for example, the Parliament thought that Jean Turner would bring something to the Health Committee and that Dennis Canavan would bring something to the European and External Relations Committee, given his experience at the United Kingdom level. It was not the independents group that nominated them; they were nominated in isolation by the Parliament because of their expertise.

If we now try to give those members a status that they did not have when they were nominated, we would be changing the nature of those committees. Therefore, it should be the bureau's right to nominate those members' substitutes in a way that does not affect the party balance. My position on the matter makes simple sense.

But their status has changed by virtue of the fact that the independents group is now officially recognised.

But they do not support one another's different policies, for example. It is a group as designated by the bureau; it is not a group to the extent that Dennis Canavan supports Jean Turner's policies, who supports Margo MacDonald's policies.

That might be a good reason for allowing them to substitute for one another because, if you follow that argument through, they are not of the same ilk.

The independent MSPs have been recognised as a group; the same might happen to other independent members in the next parliamentary session. It is not defensible to say that we should not allow them to have substitutes. Allowing them to have substitutes would be useful because at the moment, if an independent member cannot make it to a committee meeting, there is no substitution arrangement.

Under the proposed rules that Karen Gillon wishes to pursue, an independent member could not have a substitute unless they were in charge of a member's bill. Such rules would be absolutely ridiculous—those members could not have a substitute if they were off for a month, but they could have a substitute for one agenda item.

We require consistency. We should consider allowing members of the independents group to have substitutes. Incidentally, those substitutes would have to be nominated early doors so that, should somebody propose a particular bill, there would be no question of their hand-picking substitutes. The same rules that apply to political parties would have to be adhered to by the independents group. In other words, there would be no picking and choosing.

One potential problem with that idea is that any group can be formed under the rules at any point during the session.

A group would not necessarily form at the beginning of the parliamentary session. You would still disenfranchise an independent member because—

You cannot resolve that.

I see that. I would argue that those members are elected to Parliament as independents; they are not elected to Parliament as part of a group, although they might form a group in order to get a seat on the bureau.

I was elected to the Parliament as a member of a political party. People know that, as an elected member of the Labour Party, I represent a set of ideas. If I was elected as an independent member, I would have put a different set of ideas to the electorate. Those independent policies would not reflect what other independent candidates stand for and people would not think, "Oh yes, if I vote for this person's policies, we will get all the policies of the other independents and they will represent us on a parliamentary committee."

Let us bear in mind that what Karen Gillon says militates against groups being able to use the substitution arrangements. She is saying that people should be independently minded and assess a bill on its merits; they should not support it because they share with the member in charge a political philosophy of some kind. We are asking people to take a view of a member's bill outwith the bounds of their party loyalties—

That is what they do with any other bills that come before the Parliament. We are trying to confer on the independents group something that it does not have. It is not a group for the purposes of membership of committees, which is why we need to consider whether other consequences might arise from the proposal. In the rare circumstance in which a substitute is required for the member in charge during a committee's discussion of that member's bill, the simplest way to resolve the matter would be to do so through the Parliamentary Bureau.

The independents group is recognised by and has a voice on the Parliamentary Bureau and has, on various occasions, been entitled to propose a debate. Therefore, it is treated by the Parliament as an entity. Your argument has been that the substitute must be pure and unadulterated with regard to the bill. Surely the point is that, if the substitute is an independent, they are more likely not to be hand in hand with the independent who introduced the bill. That seems to me to be quite a good argument. I do not see why the independents group should not nominate a substitute.

I return to my suggestion that the clerk write a short note on the matter. We seem to be agreed about small parties and individual members but not about the independents group, so the clerk's note would cover granting the independents group the right to have substitutes, any ill effects that that might have and the options for change. Can we progress in that way?

It is not a matter of ill effects, convener, but of unintended consequences. There might be positive effects.

All right. We will go for unintended consequences. There might be intended consequences, but let us not get pernickety.