Public Bills (Guidance)
I reconvene the meeting. The last item of business is a report on manuscript amendments and amendments to the guidance on public bills. Andrew Mylne is with us to address the issues.
Andrew Mylne (Scottish Parliament Directorate of Clerking and Reporting):
When the rules relating to bills were changed recently in a number of respects, including by the introduction of a procedure for manuscript amendments at stage 3, the committee requested that there be an addition to the guidance to cover the new procedure. That is what the paper that is in front of members today sets out.
The paper contains a number of minor changes to the guidance that cover the other changes that were made to standing orders, but the change that it is important to pay particular attention to is the new paragraph 4.74. The new paragraph is designed to provide guidance for a convener at stage 2 or the Presiding Officer at stage 3 in deciding whether to allow a manuscript amendment that has been lodged to be moved; in other words, it provides guidance on applying the revised test that is set out in rule 9.10.6. In drafting the new paragraph 4.74, we have tried to allow for various factors, in particular the fact that the later a manuscript amendment is lodged the greater the disadvantage to members and to the public, and the fact that the disadvantages are greater at stage 3, in particular if a suspension of proceedings is required.
The paper acknowledges that a main reason for having the procedure that has been agreed to is to allow bills to be passed without defects. The procedure is a safety valve for last-minute problems. In particular, the procedure acknowledges the point that was made by the committee when it examined this issue previously, that there is a case for manuscript amendments where they are lodged directly in response to amendments that were lodged just before the normal deadline. We have tried to build all those factors into the guidance to give a reasonable steer to conveners and the Presiding Officer, without being overly prescriptive. We acknowledge that a wide range of circumstances are involved and have tried to leave a degree of flexibility and judgment.
The Presiding Officer has already seen this paragraph in draft and is content with it. We thought that that was important, given that he in particular will have to apply the rules.
Although the new procedure for lodging manuscript amendments has been in place for only a short time, it has been used quite a lot already—perhaps more than we had anticipated. I remember writing in an earlier paper for the committee on this subject that the procedure will have failed if lodging a manuscript amendment becomes anything other than a last resort. It may be a little early to say that we are in that situation now, but the committee may wish to keep an eye on the matter in the medium term and to review it after a large number of bills have gone through stage 3 under the new rule, in order to see whether it is working as intended.
I will make some general points first and then I will make specific suggestions on the text of the guidance.
I have serious concerns about the use—or misuse—of manuscript amendments. Just before we dealt with stage 3 of the Community Care and Health (Scotland) Bill, I raised a point of order that dealt not with the content of the manuscript amendment but with the fact that, as Andrew Mylne said, if the new system is used as a matter of course, it will have failed. Our experience of the past few weeks gives me cause for concern.
When the Procedures Committee considered its report on manuscript amendments, I suggested some changes to reflect the committee's discussions. I suggested changing the emphasis from a presumption in favour of accepting a manuscript amendment at stage 3 to a requirement that there be sound technical and legal reasons for accepting such amendments. My changes, which were accepted by the committee, were included in the final report that was presented to Parliament.
There is a general feeling across the parties that we may need to use manuscript amendments at stage 3 to ensure that legislation is technically competent. However, I do not underestimate the discomfort and concern that was evident in the chamber when a manuscript amendment was debated during stage 3 of the Community Care and Health (Scotland) Bill. The responsible action for the committee to take would be to ensure that we do not allow a free-for-all. If members lodge amendments at the last minute, they will allow substantive policy debates on manuscript amendments to take place.
I will distil that point into what I think it means for the text that is in front of us. Paragraph 4.73 refers to the range of manuscript amendments, starting with those that are
"lodged just too late to meet the deadline".
An amendment is either late or it is not late—the phrase "just too late" should not be included in the text of the guidance. We should be hard about that, because if we do not keep a firm hold of the deadlines in the legislative timetable, we will allow slippage and end up with a huge number of manuscript amendments that are lodged at the last moment. I do not think that that would be in the Parliament's best interests.
The substance of the issue is covered in paragraph 4.74.
Let us deal with paragraph 4.73 before we move on to paragraph 4.74.
I want to be clear about what we are saying in paragraph 4.73. If someone lodges an amendment after the deadline, his or her amendment becomes a manuscript amendment. We are not saying that that amendment would be selected for debate. In fact, unless there were a justifiable technical or legalistic reason for accepting the amendment, it would be lodged too late if it were submitted after the deadline, even if—to be blunt—it contained a new point. It would be a manuscript amendment that would not be selected.
In essence, that is the position. All I am trying to do in paragraph 4.73 is to provide a definition of a manuscript amendment. A manuscript amendment is any amendment that is lodged after the deadline, even if it is lodged only seconds or minutes after the deadline has expired. That is all that paragraph 4.73 says—it is not an evaluation of manuscript amendments but simply a description of what a manuscript amendment is.
The convener is quite right to say that an amendment that is lodged up to the deadline, which might be 4.30 on a particular day, is an in-time amendment. Amendments that are lodged after 4.30 are manuscript amendments. The sentence to which Fiona Hyslop referred simply makes it clear that manuscript amendments range from amendments that are lodged literally seconds after the deadline right through to amendments that are lodged seconds before the last point in the proceedings at which they could possibly be lodged. All manuscript amendments are encompassed in that range. We do not get on to the issue of which manuscript amendments should be allowed to proceed until later in the paper.
Would it help if we strengthened this paragraph by indicating that, in normal circumstances, an amendment that is submitted late will not be accepted unless there are good reasons why it should be accepted? I know that that is implicit in the paragraph but, given that this is public guidance that MSPs might expect to be followed, we would not want to lead members to believe that, if they brought their amendments in just too late, their amendments would be accepted.
It is not intended to create any impression about distinctions of that sort, as the paragraph is meant to be purely descriptive. However, I am happy to re-examine the wording to see whether it would be possible, by making a minor tweak, to avoid giving that impression.
If the word "just" is taken out, the paragraph will be clear.
I support the points that Andrew Mylne has made. Although I agree with some of the wider comments that Fiona Hyslop has made, I think that that paragraph is purely descriptive and factual. It says exactly what Fiona wants it to say.
I agree with Fiona Hyslop. The paragraph is intended to be purely descriptive but "just too late" is a value-laden term. I would infer from it that a prejudicial decision will be made and that an amendment that is just too late would be considered more favourably. I am sure that Andrew Mylne could write the paragraph using more neutral language—in fact, he described the process in neutral language a few minutes ago.
Fiona Hyslop has suggested that "just" be removed from the paragraph. Without considering the matter in depth, it seems to me that simply saying "lodged too late" would be a more neutral way to put it. The term "just too late" might be taken as implying that someone might say, "Och, we'll let you off with it this time."
I am happy to re-examine the wording.
Are there any comments on paragraph 4.74?
Paragraph 4.74 contains guidance on when manuscript amendments would be acceptable. In previous discussions, we agreed that we should give credence to the view that we should have technically and legally competent legislation that makes sense. There is a strong argument that, after the deadlines for the submission of amendments, further analysis of the bill might necessitate the lodging of further amendments.
There is concern about the possibility that manuscript amendments might be used to introduce a new policy issue. It is more likely that members will use a manuscript amendment to counter the submission of an amendment before the deadline on the last day. Although it is open to interpretation, that is how I would characterise the Community Care and Health (Scotland) Bill manuscript amendment. The paragraph talks about adjournments and suspensions. I would be concerned if the use of manuscript amendments meant that a number of adjournments took place at stage 3. I would appreciate procedural guidance on when an adjournment could take place during a stage 3 debate.
I would feel more comfortable with the paragraph if a change were made to the sentence that reads:
"In applying that test, the convener should begin with a presumption in favour of allowing the amendment to be moved, but weigh against that the difficulties that reduced notice may cause, both to members and to outside parties with an interest in the Bill."
I would prefer it to read: "In applying that test, the convener should begin with a presumption against allowing the amendment to be moved, but weigh against that the benefits that achieving consensus and agreement of technically sound legislation would bring."
I prefer that balance. It keeps in the idea of technically sound legislation and preserves the opportunity for reaching a consensus, as could have happened with the Community Care and Health (Scotland) Bill manuscript amendment. However, the current presumption in favour of using manuscript amendments skews their use too far to be acceptable to members.
However, that sentence cannot be read without referring to the previous sentence, in which we are told that the convener would already have made a judgment that the manuscript amendment was justified in the circumstance, taking account of the disadvantages. I do not think that the sentence to which Fiona Hyslop refers is saying that there is a presumption in favour of anything that is lodged as a manuscript amendment. It is saying that there is a presumption in favour of a manuscript amendment that has been judged and seems justified in the light of the criteria that would be applied for its selection.
I understand that there is a distinction between the criteria for lodging a manuscript amendment and the criteria for accepting it for debate. A number of amendments could be lodged; the issue is whether they should be accepted.
There is a danger of confusion here. A manuscript amendment may be lodged in the same way as any other amendment. By definition, it is lodged after the deadline, but it is lodged in the same way and is subject to the same admissibility criteria as all other amendments. What distinguishes a manuscript amendment is the fact that there is an additional hurdle for it to overcome after it has been lodged—whether it passes the test that is set out in rule 9.10.6 of standing orders. That test is applied by the convener or the Presiding Officer.
The rest of paragraph 4.74 is meant to be guidance to the convener or Presiding Officer on the application of that test. It is not quite correct to say, as the convener suggested, that the test follows on from a decision that has already been made. The test is about how that decision is made. The paragraph states that there should be an initial presumption in favour of allowing a manuscript amendment, but that its disadvantages should be taken into account. A lot of the paragraph describes what those disadvantages are, which arise to a different extent in different circumstances. The test is about striking a balance between the disadvantages and something on the other side—and the something on the other side is a presumption in favour of allowing the amendment to go ahead. Against that presumption, the various disadvantages that apply in relation to a particular amendment in particular circumstances are factored in.
The fact that the process begins with a presumption in favour of manuscript amendments does not mean that the majority of amendments will pass the test, as the disadvantages may be many and substantial. However, there must be something in the first place against which those disadvantages are counting. That is why the paragraph is worded as it is. If things were put the other way round, as you have suggested, the point would be lost.
That is precisely the point that I raised on the wording during the report of the Procedures Committee. That was the balance that we changed round. The wording in the Procedures Committee's report on this was to say that there were disadvantages first and then limited advantages, most of which were of a technical legal nature. That is why the committee agreed to the changes before the report came to the chamber, and that is the balance.
We can start with the advantages and then consider the disadvantages. The balance of the view that I interpret from the Procedures Committee's inquiry—I have discussed it with members following the first use of manuscript amendments last week—is that the disadvantages are the most pronounced. That is why I much preferred wording that talked about a presumption against, although I recognise that there are occasions on which the use of manuscript amendments can achieve consensus and it makes sense to ensure that we have technically sound legislation. I think that we can all agree that that is the main reason for having manuscript amendments. The problem is that if the wording of an amendment is loose—I do not mean that pejoratively—or suggests otherwise, it is an invitation for abuse.
One thing that the committee must do is ensure that we preserve the dignity of the Parliament to make sure that we have full debate. Members will recall that we were in Hawick last Friday night. One of the interesting points that was made was that people had only three days at stage 3 during which they could influence somebody on some of these issues. If we allow members only one day, we are neglecting our duty.
I agree with the thrust of Fiona Hyslop's argument. I am not sure about the wording. The paragraph needs to be reworded, although I am not sure whether Fiona's wording would be right.
The arguments for a technical manuscript amendment are fairly convincing and straightforward. Technical manuscript amendments should be allowed. However, there should be a presumption that policy amendments should not be allowed, especially—perhaps we should spell this out—if they have already been debated either by the full Parliament at stage 2 or in committee at stage 3.
It is the other way round.
Yes, exactly. I know.
If amendments have been debated and voted on, I do not think that they should be allowed as manuscript amendments. I am not sure about the wording. The paragraph says:
"In applying the test, the convener should begin with a presumption in favour of allowing the amendment to be moved."
I would prefer the presumption to be the other way around. We should be putting hurdles in the way of manuscript amendments, not encouraging them.
I find the last sentence particularly extraordinary. It says:
"Where an Executive or member-in-charge amendment has been lodged immediately before the normal deadline, and so is only available in print … agreement should normally be given to move any manuscript amendments which are lodged directly in response to that Executive or member-in-charge amendment."
That suggests that Executive amendments that come in just before the deadline should be treated differently from anybody else's amendments. I do not agree with that at all. All amendments should be treated equally.
If people do not like Executive amendments being put in just before the deadline, they can vote against them, just as they can vote against anybody else's amendment. I do not think that we should necessarily allow people to lodge a manuscript amendment unless it is a technical amendment. If the Executive amendment that is lodged just before the deadline changes the bill and somebody has to change it technically to retain the policy intention—a technical rather than a policy amendment—that should be allowed. A policy-changing amendment should not be allowed. There should be no presumption that last-minute Executive amendments have any less standing than anybody else's last-minute amendments.
I disagree with that. We are entitled to see an amendment lodged by the Executive—or the member in charge if a member's bill has got to that stage—as one that is likely to be agreed to. It is reasonable for members who might disagree with those amendments to have the opportunity to lodge counter-amendments.
The committee has put a lot of emphasis on persuading the Executive that it is appropriate for its amendments to be lodged a day earlier, even though we have not required that. The purpose of that is to allow people who might wish to dispute those amendments to have the opportunity to lodge a counter-amendment.
If the Executive, for whatever reason, lodges its amendments at the last minute, we deny other members the opportunity to disagree with the Executive by counter-amendment, unless we provide for some kind of manuscript amendment to be lodged. The alternative is to require the Executive, or the member in charge, to lodge their amendments earlier than other people. We have chosen not to do it that way.
I am quite happy to accept what the Executive says—in principle, it always tries to lodge its amendments in due time. However, it does not always manage that and for the debates that we are having this week, the Executive lodged about 30 amendments on the last day.
The principle of allowing debate on amendments requires that, as a reasonable part of power sharing, if somebody lodges a substantial amendment—or any amendment that is likely to become part of the law—we allow members who might disagree with the policy the opportunity to lodge an amendment to the Executive's last-minute amendment. The Executive would accept in principle, although it would no doubt have good reasons for this, that it had failed to achieve its targets if it lodged an amendment at the last hour of the last day.
We also heard evidence about the performance of the Executive in lodging amendments at stage 3. I do not normally sing the praises of the Executive by any means. However, I was pleasantly surprised to learn that, by and large, the Executive had met the timetable for lodging amendments—I cannot remember the exact number of days in advance—to allow the Opposition to see those amendments and to lodge amendments before the deadline to counter them, if necessary.
That system is working well. The committee must advise members to lodge amendments before the last day precisely to allow the counter-amendment to be lodged, but not as a manuscript amendment. That is a real test for the Parliament.
We have a real problem in that if we do not try to keep hard deadlines, there will be abuse of the system. The difference with the bill that we are currently debating, which is likely to have a number of manuscript amendments, is that it is not an Executive bill; it is a member's bill. That is perhaps the distinction. Do the rules for the Executive lodging amendments apply to any bill, whether it is a member's bill or an Executive bill? Should the deadline of five days in advance for the lodging of Executive amendments apply only to Executive bills or should it apply to all bills?
If a member has taken a bill as far as stage 3, we have to assume that an amendment brought forward by the supporters of the bill is likely to be passed. It has to be treated in the same way as an Executive bill amendment. If, for whatever reason, an amendment is lodged close to the deadline, other members have to have the opportunity to react to that amendment.
We should not allow—and I do not think that the rules do allow it—members to come forward after the deadline has passed and bring up an entirely new issue that they want to put up for debate. That is new material and it is not on. Where we are allowing people to react to each other's amendments and accept that as legitimate, we have to create a mechanism that requires amendments to be lodged early and gives time for counter-amendments to be lodged.
Alternatively, if a deadline is to be laid down, people have to have the opportunity to amend things that were submitted late. If we do not do that, we are failing to operate transparently, failing to share power and not giving members the opportunity to react to amendments that are likely to become law.
I disagree with that interpretation of amendments and motions for amendments. By the time a bill has reached stage 3, most of those issues should have been debated already. Members should therefore have the power to vote for or against an amendment. They will not be denied that opportunity by not having the ability to vote on their amendment to that amendment. They can either accept or reject the amendments that have been lodged at the last minute.
We are trying to prevent abuse of the procedure. We are not trying to stifle debate or allow the member in charge or the Executive to take advantage of their position. We are trying to make the procedures fair so that people have a chance to debate the substantive policy and not, in this case, giving an edge over the Executive to those who are opposed to members' bills or Executive bills.
I am sorry but if we allow the Executive and the lead member to lodge amendments at the deadline, we are giving the edge to the supporters of the bill. At stage 3, we are not simply debating policy issues because they have been ventilated at the committee stage. We are finalising the wording; it is the last cut at getting the wording precise and correct.
I am not calling anyone's good intentions into question, but it has been the case that, for whatever reason, there have been fairly significant and substantial amendments lodged regularly at stage 3 of bills. That often happens after stage 2 discussions, when it is agreed that a minister will go away and come back to present something at stage 3. Unless the minister lodges the amendment on time so that other people can react to it or we allow a process for manuscript amendments, Parliament is denied the opportunity to do anything to change the wording.
When we come to the debates taking place this week, we will find that there are some fairly significant late amendments. It is entirely reasonable that other members should have the opportunity to react to such amendments. If amendments are lodged on a Thursday, members then have the Friday to consider them and that is fair enough.
However, if the amendments come in late on Friday afternoon, I think it is entirely reasonable for the Presiding Officers to consider amendments to those amendments and, on the Monday, to select them for debate. After that, the chance has gone because members should react to amendments right away.
If somebody comes in on Monday morning and says, "Hey, I have decided that I would like to add a whole new extra section to a bill" and it adds an undebated and unanticipated area of policy, they have bombed out. That is an abuse of the procedures. However, to allow people to fine-tune the wording of a proposed law is entirely reasonable. That is why the mechanism has been produced.
It might be useful to respond to a few points that have been raised. On Mr Macintosh's concerns about the last sentence in paragraph 4.74, that sentence directly reflects something that the committee agreed to at a previous meeting. As the convener has already pointed out, the earlier paper that the committee agreed to that led to the standing order changes specifically included a paragraph suggesting guidance along exactly those lines. When the committee agreed that paper, it also agreed that the procedure of lodging manuscript amendments at stage 3 was a way of meeting, by a slightly alternative route, the concern about the earlier deadline for Executive amendments, in particular where the Executive or—in the case of a non-Executive bill—the member in charge lodged an important amendment at the last minute, which other members would not see in print until after the deadline had expired. The manuscript amendment mechanism legitimately gives members an opportunity to lodge amendments to such an amendment or to lodge amendments that are prompted by it. All I have done in paragraph 4.74 of the guidance is to reflect something that the committee has already signed up to.
One or two members have mentioned a distinction between what can be called policy amendments and technical amendments. Although I understand that distinction—and people can point to clear examples of either sort—it is nevertheless quite hard to apply. Such a distinction is not hard and fast, and there will often be a grey area between the two sorts of amendment. Some amendments are both policy and technical amendments, and it will be a matter of judgment and controversy to work out which they might be. As a result, it would be pretty difficult to build such a distinction into the guidance and apply it.
That said, we have tried to ensure that such a distinction is recognised in practice. If the guidance were followed in practice, the green light would be given mostly to technical amendments and it would be less likely that any new policy amendments would be agreed to. However, as I said at the beginning, we have tried to avoid being overly prescriptive. Every circumstance that might arise cannot be dictated in guidance, although I hope that it works out that way in practice.
I should point out that the majority of manuscript amendments to the Protection of Wild Mammals (Scotland) Bill that have so far been accepted are technical amendments. I cannot think whether anyone has lodged a new policy amendment.
That said, some amendments illustrate the difficulty that I have alluded to. For example, an amendment that introduces a whole new section might be lodged on the final day. However, if the Executive has lodged such an amendment to fulfil a commitment that was made at stage 2, we will consider the issue, come up with something and introduce that at stage 3. The Executive might lodge an amendment that goes a long way to meeting members' concerns at stage 2, but does not go as far as some members would like. In response, they might want to lodge amendments that change the word "may" to "shall" and so on in order to beef up and strengthen the Executive amendment. That is both a matter of policy and a legitimate use of the manuscript amendment route, because the only opportunity to lodge such amendments is after the Executive amendment has been lodged and therefore after the deadline.
But the member who moves a manuscript amendment is not introducing a new issue, but responding to a policy amendment that has been lodged in time. However, that amendment has not been lodged in enough time to allow members to read and understand it and to think, "Well, I'd like to strike out the word ‘just'". You have to allow members the opportunity to do that, otherwise you will frustrate the perfectly legitimate operation of members dealing with legislation.
I want to respond to that point, if I am not too late to do so. Although we want to be alert to the distinction between policy amendments and technical amendments, you have cited examples of amendments that are lodged to achieve consensus and legislation that is technically and legally competent. For example, the Executive might give a commitment to lodge an amendment on a particular issue at stage 3, but then its amendment does not go as far as members wish. We then have to reconcile the Executive's will to go in one direction with members' will to come together.
The guidance should emphasise consensus and ensure that we have technically and legally competent legislation. Its explicit presumption should be that we should not accept manuscript amendments unless they are trying to achieve those two objectives. We want guidance. If members do not understand what they are doing, not only will we have disruption and unhappy members at stage 3, but we will not have good law.
I do not know how it can be presumed that manuscript amendments will not be accepted. If manuscript amendments that are lodged meet the selection criteria, surely they should be accepted.
I agree with Fiona Hyslop. It is difficult to discuss the guidance in the context of the controversial bill that will be debated tomorrow, which has caused worries among members throughout the chamber, particularly about abuse of the legislative process. I will take that issue no further, but there are concerns that many of the last-minute amendments are oppositional, not consensual.
The proposal in a manuscript amendment to change a word such as "may" to, for example, "shall" is likely to be in the interests of the chamber and is likely to be, or should be, accepted. In such cases, I do not understand why one would want to single out last-minute manuscript amendments, whether they are from the Executive or the member in charge. All amendments should be treated equally. An amendment by a member who opposes a bill should be treated the same as a member-in-charge amendment.
In the interests of consensus, if a member finds an amendment's wording unacceptable, but does not have time to lodge a counter-amendment that would make the amendment acceptable, they should be able to lodge a manuscript amendment without that being discriminated against. A member's amendment that opposes an Executive amendment or a member-in-charge's amendment should not be considered more favourably than other members' amendments. All amendments should be treated equally.
Fiona Hyslop's more important point was that interpreting the reason for lodging a manuscript amendment is a matter of discretion—the guidance notes are not rules. However, I trust the Presiding Officers—I am sitting next to one—to exercise their discretion properly.
We should not have a debate about whether the amendments that were lodged on Thursday for Friday's business bulletin were less or more legitimate than the amendments that were lodged on Friday afternoon for Monday's bulletin. Mr Macintosh might want to consider the matter carefully and come to his conclusions. It is dangerous to consider specific bills and activities.
I accept that the Executive is less likely to seek to change by counter-amendment an amendment that is lodged by a back bencher or an Opposition spokesman, but it is valid to suggest that one can imagine that happening and so it is reasonable to say that all amendments should be treated the same. I would have thought that if I were to lodge an amendment at 3.52 pm on a Friday the suggested procedure would allow the Executive to decide that it would support the amendment, subject to an amendment on a point of detail. In effect, that would be a counter-amendment, but that is not the term that we have used. In such a case, my late amendment would be treated similarly to the Executive's amendment.
Executive and member-in-charge amendments have been highlighted because the Procedures Committee discussed the matter several times on the understanding that greater weight is attached to an Executive amendment. Opposition amendments are often lodged so that an issue can be debated; it is accepted that the amendment will be knocked down. One can imagine the Executive being largely in favour of an Opposition amendment or an amendment from a member of a party that is in the Executive, but wanting to change the amendment's wording. That was the case last week with half a dozen manuscript amendments.
I am happy for the wording of the guidance to reflect the principle that all amendments are the same. What we call the amendments or where they come from is not important. However, it is important that an amendment that is lodged late can be counter-amended—without departing from the general policy area—to allow a debate on the amendment the following week. It is also important that no member derives an advantage from lodging an amendment a minute before the deadline that would deliberately or accidentally deprive other members of the opportunity to press their issue the following week. It is important to protect members' right to react to other members' amendments.
I have a couple of brief points on what the convener said about the last sentence of paragraph 4.74. As I said, the wording was designed to reflect the committee's earlier discussion and the fact that it wished to distinguish Executive and member-in-charge amendments from others. The sentence attempts to say that, among the various factors that are taken into account in deciding whether a manuscript amendment should be allowed to be moved, there might be a presumption in favour of a manuscript amendment that is in response to an Executive or member-in-charge amendment that was lodged immediately before the normal deadline. That does not rule out the possibility of an amendment of a similar sort that is in response to a non-Executive amendment being allowed through, if it is seen as legitimate in the circumstances. The sentence makes a bit of a special case, but it certainly does not rule out the other situation to which Mr Macintosh referred.
But you could amend the wording to respond to the concern that the committee has raised.
I can look at it again.
I have a suggestion. A number of concerns have been raised about the wording of the guidance. Things are happening as we speak. We have another stage 3 debate on Thursday. The issue is whether we rush to agree the wording of the guidance, bearing in mind the fact that a number of us have concerns, or whether we allow time for reflection and redrafting the paragraph, bearing in mind the fact that the points that have been discussed will be communicated to the Presiding Officers in the next few days, when they will be considering manuscript amendments for stage 3 debates.
There is no requirement to approve the changes today. The selection of amendments for the Protection of Wild Mammals (Scotland) Bill has already taken place. The selection for the Water Industry (Scotland) Bill will take place later today. I do not think that the Presiding Officer would want to apply different criteria to the Water Industry (Scotland) Bill from those that were applied to the Protection of Wild Mammals (Scotland) Bill, or indeed the Community Care and Health (Scotland) Bill last week. We are not talking about changing procedures; we are talking about how we frame the guidance. I agree that it is important that we get that right. We need to ask Andrew Mylne to reflect on the Official Report of this discussion and the points that have been made, and to find ways to reword the paragraphs so that they convey more precisely the guidance that the committee wishes the Presiding Officers to apply.
I have one more suggestion. As I said, it is difficult to think today without being conscious of the forthcoming debates. Would it be possible, when we next examine the issue or possibly before, to be given examples of manuscript amendments that were lodged and which were and were not accepted? That may help us to take a more balanced view on whether the guidance is right.
If the committee is not happy with the wording, I am more than happy to adjust it in line with the concerns that have been raised, to the extent that I can reconcile the different views that members have expressed. With respect, I am not entirely sure that examples would be helpful. In such situations, we always try to produce guidance that is suitable for the generality and which is not dictated by one or other particular circumstance, because if guidance or procedures are based on a particular case, something is likely to result that does not work in other cases. There would be something slightly problematic about focusing on specific examples, which would tend to politicise a discussion that needs to be fairly general. Providing examples might distort the issue.
Would not it be possible to provide several examples? I did not mean one example; I meant perhaps a dozen examples. If we had a dozen examples from a range of bills that covered several situations we could see whether the guidance works.
That would be difficult at this stage. Andrew Mylne said at the beginning that we should review the agreed guidance after a number of stage 3 debates. It would be better to examine the issues and see how the rules were applied with a fair degree of retrospect. Obviously if we wish subsequently to revise the guidance or the standing orders, it is open to us to do so, but it is important to see how the new procedures work before we rush to judgment on them. It might be better to examine examples that have arisen, rather than look at this week's examples—which might generate undue emotion—or imaginary ones. We are better to wait.
There may be a halfway house between what Ken Macintosh and Andrew Mylne have said. I appreciate the risk of considering guidance in relation to particular examples, because each case is different, but none of us wants to agree guidelines that are not capable of being applied effectively.
Some of the discussion has been a wee bit abstract. The objective we all share is to pass good law. I am more persuaded by the convener's arguments about what would enable us to pass good law, but I want to be persuaded that any revision to the text will enable the guidance to be applied effectively in a range of different situations to ensure that we put the most effective legislation possible on the statute book. That is our overwhelming aim. Our aim is not always to create consensus, because consensus is not always achievable. Nor is it to be for or against what the Executive or the member in charge of a bill has done. It is to ensure that legislation is effective.
I do not want to prolong the discussion further—we have been at it long enough—but, rather than bring along specific examples, can everything possible be done to test the application of the guidance? There is no point in the committee doing something in good faith that we find, further down the track, has the opposite effect when it is applied to a live piece of legislation.
I am quite certain that if the Presiding Officers feel at any stage that they are having difficulty applying the procedures or interpreting the guidance they will invite the committee to revisit the matter at an early stage.
I have one final point of guidance. As far as the standing orders—which state the formal position—are concerned, it is simply for Presiding Officers or conveners to decide by applying the short and simple test that is set out. Obviously, they will try to follow any guidance that is published, but the guidance is not a straitjacket. Even if the guidance is not perfect, it will not stop them making sensible decisions in particular cases by applying the test that is in the rules.
Do we agree to reconsider the wording of that part of the guidance at a subsequent meeting?
Members indicated agreement.
I thank members for their attendance and contributions.
Meeting closed at 12:32.