Non-Executive Bills
Agenda item 1 is on witness expenses. Does the committee give permission for decisions about witness expenses for the non-Executive bills inquiry to be delegated to me?
Members indicated agreement.
Agenda item 2 is our first oral evidence session for our non-Executive bills inquiry. We are pleased to welcome Paul Grice, the chief executive and clerk of the Scottish Parliament, to give evidence on behalf of the Scottish Parliamentary Corporate Body. I ask him to make a few opening remarks, after which I will open the meeting to questions from the committee.
Paul Grice (Scottish Parliament Clerk and Chief Executive):
I will keep my opening remarks brief, as I am here to answer questions. On behalf of the corporate body, I welcome the inquiry and the urgency with which the committee is undertaking it. As members know, the Presiding Officer wrote to ask the committee to consider the matter and the corporate body is grateful that the committee is doing so.
The non-Executive bills unit was established in 2000 to support members and committees. We also established a drafting panel, which was intended to replicate the capacity of the Executive's office of the Scottish parliamentary counsel. At the same time, we also made budgets available.
After the non-Executive bills unit was set up, it quickly became apparent that demand would outstrip the supply of resources. At that point, we alerted the corporate body to the problem. The non-Executive bills unit's support is not necessary to the introduction of every member's bill, but many members have used the unit. One key question is how to determine who has non-Executive bills unit support. That is one of the central questions that the corporate body looks to the committee to consider and take a view on.
In the previous session, the corporate body took the view that the non-Executive bills unit required some political management to ensure the appropriate use of resources. It therefore agreed criteria to guide decisions, of which the committee has been made aware. I am happy to discuss or answer questions on those broad criteria in more detail.
The criteria were not intended to place a straitjacket on resources. For example, the corporate body had to react swiftly to deal with the Commissioner for Children and Young People (Scotland) Bill, which was a huge undertaking relative to the scope of other bills. We learned lessons from that about the process of supporting a committee and producing a major piece of legislation. That also showed quickly that with a relatively modest team, a major bill such as that can have an impact on other bills that are in hand. Nonetheless, the corporate body would always be willing to take a flexible view on the overall quantum of resources within the constraints that it operates.
As to the current situation, there is no crisis in resources at the non-Executive bills unit, but there is a significant number of proposals—around 20—in the pipeline, and the unit is working with members on the consultations for those, which is a service that we offer to all members. However, looking ahead, if all 20 proposals came to fruition, it is clear that we could not sustain the level of service demanded, given the unit's capacity. As you have probably been previously advised, the unit can produce perhaps between four and six bills a year, although that depends on the nature of the bills. With 20 proposals already in the pipeline and, of course, the possibility of many more, there is in the corporate body's mind a significant issue to be addressed as to which bills should get support, what type of support they should get and at what stage in the process they should get it.
I will leave it at that, convener. I am happy to follow the committee's lines of inquiry beyond that.
Thank you for those remarks. My understanding is that, in the previous parliamentary session, the Parliamentary Bureau began to consider the resource issues because of a request from the corporate body to do so. Will you outline the nature of the concerns that led the corporate body to ask the Parliamentary Bureau to consider the matter?
The SPCB was concerned on a number of fronts. The principal concern was the difficult issue of how one decides exactly which bills should be supported. We did some work on that for the SPCB, which was very aware of the Westminster approach. That approach is effectively a lottery, which has pros and cons; our approach is more first come, first served, and the corporate body has always been a bit uncomfortable with not being able to look ahead at all. There was always a risk that all the resources would be tied up in supporting two or three bills and that a more worthy bill—if I can use that phrase, although perhaps it raises the question what the essence of a worthy bill is—would come along a month or two later.
That issue arose over the Commissioner for Children and Young People (Scotland) Bill, which arrived quite late in the session. Thanks to the efforts of all concerned—the committee members, staff and others—it was possible to get it through the process, but that was done at quite short notice and we were not able to plan for it as well as we could have done.
The corporate body has always been anxious about not being able to look far ahead, but it has also been anxious because we have never taken a Parliament-wide view on the matching of the other key element of resources—parliamentary time—to demand. That prompted its original approach to the Parliamentary Bureau. Parliamentary time is not a matter for the corporate body, but it fully recognises that time is a constraint and wishes that, whatever solution the committee comes up with, recognition be given to the constraints on parliamentary time as well as on those of the corporate body's people and money resources.
Those were the two major concerns that prompted the corporate body to raise the issue in the first place.
Would it be better to have some sort of ballot of MSPs to prioritise what was considered to be important? Would you support that?
I do not think that the corporate body would. We presented it with a number of possibilities and, although a ballot appealed because it produces a clear outcome, the corporate body's view was that we should be able to devise something that is a little more sophisticated and which attempts to produce an outcome that better meets the Parliament's needs and aspirations. Although the corporate body felt that a ballot was nice and clear cut and would certainly allow us to proceed pragmatically, its view was that we should set our sights a little higher and try to find a system that was a little bit more sophisticated.
Such as what?
The SPCB began by considering a quite mechanistic approach with regard to the standing orders that govern the number of bills that a member can introduce and the number of supporters that he or she requires. However, it moved away from such procedures because it recognised that no two bills are the same and that, in a political institution, such issues are highly political. At the end of the day, the SPCB felt that some judgment needed to be made in that respect and that a purely mechanistic solution was never likely to produce sensible outcomes.
As a result, the SPCB moved towards a mechanism by which a new or existing committee or the whole Parliament—or, indeed, both—would make a decision on some kind of forward programme of bills. Having wrestled with and examined quite a number of different possibilities, the corporate body felt that that was a better way of meeting the Parliament's aspirations and ensuring that the use of resources was planned and exercised more sensibly.
You have said that there is no current crisis within the non-Executive bills unit, even though there are 20 members' bills on the table. At the moment, members are able to introduce two such bills per parliamentary session. Could we sustain the situation if every member took that opportunity or should we take a more realistic look at that standing order of the Parliament?
My comment about the lack of a crisis is timely. Although supporting members during the important consultation process is a demanding task, one can cope with a large amount of such work. However, if we were working with members on 20 consultations and dealing with half a dozen bills that were at the drafting stage, we would not be able to cope, given our current resources.
As clerk of the Parliament, I cannot really comment on whether it is appropriate for members to introduce so many bills. That is really a decision for the committee. However, I will say that with our current resources we could not sustain a situation in which, for example, 100 members each introduced two bills if—and this is the critical point—they all required parliamentary resources. Of course, it is still possible for members to bring in support from elsewhere; indeed, many members have already done so.
If 200 bills were running, NEBU would not have the resources and there would not be enough parliamentary time to support that level of work. On the basis of the analysis that we have provided to the committee, if all 20 current members' bills were to be introduced with NEBU support, they would probably tie up most of the current resources over the next three or four years of this parliamentary session. That should give members a broad idea of where current resources would go.
If we sought to introduce a system in which Parliament decided the priorities and the bills that would go forward, how would that work? Would there be a deadline in any particular year by which a member would have to submit his or her ideas?
From our point of view, it would be highly desirable if we had some of a committee's ability to produce a forward work programme, as that would allow us to deploy resources and to begin the process with members with an agreed timetable. Indeed, it would be as much in members' interests to have that approach as it would be in the staff's—it would be very helpful to all concerned.
There are a number of ways in which we can reach that point. For example, the advantage of the whole Parliament endorsing a work programme is that it gives everyone concerned a degree of comfort about the likely outcome of bills. I absolutely accept that it is not essential for every bill to be guaranteed passage—after all, there are other reasons why a member might want to introduce a bill. Nonetheless, such an approach would provide us with a helpful indication.
However, one of the major problems in that respect is how we supply members with sufficient information to allow them to reach such a decision. Cathie Craigie knows about that because she has had personal involvement with a bill, and the committee will have the benefit of hearing from two witnesses who have taken bills all the way through. The phrase "the devil is in the detail" comes to mind. If the whole Parliament is to be asked to take a view on proposed bills, a fundamental decision must be made about the level of information that is required before the Parliament takes that view. For example, would it be adequate just to have a proposal? Should there be more information than that? Should we go all the way to the extreme of requiring a draft bill? That big issue must be addressed; members must be invited to take a decision on a reasonable basis.
Working back in time, consideration must also be given to how members should be presented with the information. Should we have a system through which some committee aims to present a report to Parliament to provide members with the information and to give an idea of the likely availability of time? Obviously, there are a number of possibilities for such a committee, ranging from the bureau to the corporate body to a specially convened committee. In my judgment, we could devise a system to do that, but important decisions would have to be made. The fundamental decision, on which I could not really offer a personal view, would be about the machinery for making recommendations to the Parliament. The previous Parliamentary Bureau took the view that it could fulfil that role and the previous corporate body endorsed that view, but other variations could be developed.
Whatever the committee does, if Parliament is asked to give a view, it is essential that we take care to ensure that members are given a reasonable amount of information to allow them to take an informed decision.
I would like to go back a bit in the process. In the past few months, I have tried to get to grips with the bill process. Stages 1, 2 and 3 are in effect political stages, but we are talking about the time and resource implications of work before stage 1. Will you give a little more detail about your idea of the time and resource bottlenecks before a bill gets to stage 1? We are not talking about a single decision; we should identify bottlenecks and work out which decision-making processes are appropriate when such bottlenecks occur.
You are right that a process is involved—the requirement for resources runs all the way through to stage 3. In answer to a previous question, I said that, although supporting members through consultation exercises requires a bit of input, we have the capacity to manage a few such exercises. The most demanding stage of any bill is the translation of an idea that has been informed by a consultation exercise into a set of drafting instructions for a bill. That process is intellectually and politically demanding and requires an awful lot of the member. I am mindful that the member resource is fixed. To some extent, we can put in more money and staff within the usual constraints and demands, but immense demands are made of the member. The translation of ideas, however well thought through they are, requires an awful lot of input either from parliamentary staff or an external source. The production of instructions for one section of proposed legislation, never mind for a complete bill, is a hugely demanding process. That part of the process will always be what you describe as a bottleneck, although I would describe it as a process that sucks in an enormous amount of resource.
The next stage is the drafting of the bill. Because our drafting panel system works well, if we get the instructions to the draftsmen right, the bill will be good. I learned in previous jobs before I worked for the Parliament that if we rush the process of creating instructions and they are not well thought through, we end up in a time-consuming and iterative process of trying to get the bill right. My judgment is that we should always put the maximum possible effort into making the requirements precise.
The next demanding stage is that of supporting a member in taking the bill through the process. If the bill is in any sense contentious, speaking notes will have to be produced and the member will have to receive support to respond to amendments, which must be considered. It must be asked whether the amendments are technically acceptable and the member must judge whether they are politically acceptable.
Is that at stage 2?
That would most likely happen at stage 2, although there might be an element of it at stage 1 if the member wants to give commitments. The stage 2 process can be exacting on the member in particular, bearing it in mind that they do not have all the machinery that a minister has. That puts a significant demand on the staff who support them. Those two stages are probably the stages in which the effort that is required is intense.
Some members have gone outside NEBU for drafting—I presume that that also includes the drafting-instruction process. What implications does that have for potentially removing bottlenecks?
It is important to bear it in mind that a member should always have the right to seek advice where they wish to do so, including on bills. Members going outside NEBU has a significant potential to relieve the burden on staff resources, although, of course, doing so does not remove the burden on the member, nor does it get round the issue of parliamentary time.
Much depends on the technical quality of the support. If a member has a bill produced that turns out to be politically well conceived but technically not well produced, there will be an enormous burden on the parliamentary system to try to rectify it. If the Executive picks up the bill, it will take on that burden. Therefore, going outside NEBU can potentially remove bottlenecks, but if the support is not particularly well developed technically, many benefits can be quickly eroded, as the bill would have to be redrafted.
The previous parliamentary session provides examples in which things have gone well in respect of impacts on resources. There are other examples of parliamentary staff having to do an awful lot of work to help to get a bill into the sort of condition required to get it on to the statute book. That is where we have a common goal. If members decide that it is politically right for a bill to go on to the statute book, we have a responsibility to support them and to ensure that the bill is technically competent. Obviously, it is in nobody's interests to get well-conceived but technically deficient legislation on to the statute book. The experience is a bit mixed, but the answer to your question is potentially positive.
I have a short supplementary question on resources. Whatever the system prioritises, what flexibilities exist to provide additional resources to NEBU, which might have to deal with big bills?
The best answer that I can give relates to the Commissioner for Children and Young People (Scotland) Bill. The scope of and timetable for that bill meant that it was obviously a demanding bill and I drafted in extra staff to support work on it. We have the capacity to do that. However, I add two riders. Staff had to be taken off other work—I am talking about broadly the same clerks, lawyers and researchers who support members and committees on a range of matters. In addition, in the first parliamentary session, we had a pretty light number of private bills, which will certainly not be the case in the current session. As the committee is aware, a decision was taken to establish a private bills unit—it was recognised that private legislation is materially different from public legislation that comes from committees and members. Private bills will put extra demands on staff and certainly on members—as anybody who has been on a private bill committee will know—and parliamentary time will also be consumed. Therefore, although we can put in extra resources, and flexibility remains, there are quite tight constraints.
Obviously, of the 20 bills that are being dealt with, some will have a better chance of success than others. Given past experience, is there anything that marks out the successful bills, such as cross-party support? I suppose that the most scarce resource is parliamentary and committee time. If so, can we develop criteria that would allow us to invest in the bills that have most chance of success?
Before I answer that, I hope that you will allow me to start with a rider. Measuring success in terms of non-Executive legislation is tricky. Of course, a significant measure—perhaps the most significant measure—is whether a bill ends up getting on to the statute book, because Parliament has taken a view on it. However, in my experience, there are sometimes other objectives for non-Executive legislation that are very valid in a political process. I will confine myself to success in terms of getting a bill on to the statute book, because the other objectives get us into political waters, on which it is not appropriate for me to say too much.
So far, and with one or two exceptions, successful bills have been marked out as those that have had a measure of cross-party support, have not been too ambitious politically—by taking on too many big political issues—and, to go back to my earlier point, have afforded the member sufficient time to work through the bill, so that the i's are dotted and the t's are crossed.
With that combination of political support, modest—which does not mean to say unimportant—ambition and the time and devotion to the bill on the part of the staff and the member to get it right, there is an excellent chance of succeeding in terms of getting the legislation on to the statute book. If the member does not have that combination, the process is by no means impossible, but it is much more difficult. That goes back to one of the earlier questions. A lot of the work can be deflected until further on in the process, so that at stage 2, and perhaps even at stage 3, the member is still trying to get the bill right. That is difficult for the member and for us all.
That would be my advice on how to use the system in a way that is most likely to produce technically competent legislation that gets on to the statute book.
First, I apologise for being late. I cannot blame it all on the weather, although it is partly to blame. I also thank two colleagues who tried to bring me up to speed on an issue—political processing and decision making—about which I am concerned. I know that some evidence has been led on that, so I hope that I do not go over the same ground.
Additional resources have been made available to NEBU. That has been welcomed by everyone because it has helped to ease pressure. In the light of that, NEBU is now working in a new environment. Is there any real evidence that a prioritisation process in a political decision-making framework is actually needed? That question has been preying on my mind. If we are to have a mechanism, I want to be absolutely sure that it is required, but I have received no such assurance.
The best thing to do is to look back to the previous session. It was my experience—especially towards the end of the session when demand outstripped supply, if I can put it in those terms—that some members were disgruntled and felt that they were not getting as much support as they wished. Staff were under enormous pressure and the SPCB felt that it was not in a position to take a sensible enough forward look. I drew a comparison earlier to a committee planning its forward work programme. Committees are under enormous competing pressures—from Executive legislation, their own ideas, and the public—and they try to look ahead, which is helpful.
There is enough evidence already—in terms of the number of proposed bills that members are seriously and legitimately pursuing—to make me unsure about how fair the system will be if we do not have some kind of political decision-making process. One could just say that it is first come, first served; we could literally take members in the order in which they walk through the door, or in the order in which they complete some process. In some ways, that would be like having a lottery or a ballot in that it would produce an outcome; however, I am sure that with flexibility, effort and dedication, as was evident on all sides in the first session of the Parliament, we will get through the process.
I do not think that I am pointing to a breakdown in the system. Looking ahead, however, I see that we have an opportunity to put in place a better system, out of which more members would get more of what they want. From my perspective, that would also ensure that staff—particularly NEBU staff—were not put in the position of having to take political decisions. Staff cannot do that and should not be put in that position.
There remains a risk that that will happen, however, not because members are unreasonable, but because they quite reasonably want to pursue their own agendas. For a member of staff to have to judge between two members, each of whom has equally legitimate demands, is always to be avoided. Unless, that is, one were to say rigidly, "Regardless of anything else, if member X walks through the door two weeks before member Y, member X gets past the first cut."
I do not want to overplay the issue of whether I see the system breaking down, as that would be to overstate the matter. That said, there is demand in the pipeline that cannot be met within existing resources; it is likely that we have not yet seen the end of that demand. I envisage a problem on the horizon if all the members who are pursuing proposed bills—or even a substantial number of them—pursue them all the way and, as is likely, other members produce other bill proposals later in the session.
Everyone would recognise that we do not want NEBU to have to undertake the prioritisation process. However, I wonder—in the light of experience—whether we will be unable to avoid bottlenecks irrespective of what we do in the run-up to the end of any parliamentary session. The nature of the beast, as it tries to clear all of its work towards the end of its life, is that that will always happen.
Now that staff and members have the experience of the first session, I would have thought that most members who wanted to propose a bill would do so at an early stage and would want to avoid a similar bottleneck arising at the end of this session. Perhaps we should wait to see whether the process can be managed properly in the light of experience. We may not need to introduce more mechanisms and bureaucracy into the system: I am not entirely convinced that that needs to happen.
I agree that the end of any session will always produce a highly pressured situation. The Government of the day is bound to want to complete its legislative programme, committees will want to complete what they have been working hard on and the sponsors of any private or non-Executive bills will want to get their bills through. I agree that the last six months or so of any parliamentary session will be immensely busy whatever we do. I also agree that there is evidence that a lot more members are submitting a lot more bill proposals at this time in the session than was the case in the first session.
If a decision were made to make do with the current machinery and to deal with such matters case by case, I am confident that that could be made to work. That said, I believe that there is an opportunity—although I do not want to presume to say what the system should be—to consider whether a better system could be put in place. Quite often the best time to put in place a new system is before one is up against a problem, both because it takes time to do it and because one is more likely to take a sensible and sustainable decision if one is not trying to deal with a crisis when the decision is made.
I accept that judgments must be made, but we could put in place a system that turned out to be not essential. I continue to believe that we can put in place a system that will deliver benefits to the members who are promoting bills and to the staff who support them.
We heard in previous evidence that a set of criteria are used at present by NEBU and the SPCB. In terms of your remarks about not wanting to see members of staff having to take political decisions, is there an issue about who assesses bills against the criteria? Do the criteria need to be expanded?
Without doubt, it most certainly must be elected members who take the decisions about the applicability of the criteria. Even to judge matters such as the size and scope of bills is difficult. One criterion is a bill's measure of cross-party support. At one level, we can look at names on a list, but members can only speculate as to where the bill will go. Judgments can be made at various stages in the process. Ultimately, of course, Parliament itself will make judgments case by case. However, there is certainly a political dimension.
The criteria have proved useful and quite durable, but it would be worth while examining them—I am sure that the committee will do that. Two former members will give evidence on how it was for them, so to speak, when they went through the process. Much can be gained from case studies in examining whether the criteria proved to be helpful. Even if they were helpful, it would be worth while considering whether they could be further refined and improved. My guess is that they could be, whatever process the committee decides should be used for applying them. Some of the criteria are straightforward, but many require judgments. There will need to be a political judgment as to which proposed bills meet whatever criteria are set out.
If the committee was minded to introduce a prioritisation system, should it happen between the end of the consultation and instruction of drafting and briefing? How often should that prioritisation process take place to allow the forward planning to which you referred? When would be the best time of year to do that?
It would be useful to get early indications, subject to the important caveat that it must be ensured that—whether the judgment is made by a group of members or by members collectively in the main chamber—members have sufficient information to make the judgment. Members' right to pursue their own agendas using their own resources must also be preserved. As you suggested, that should happen before the detailed process of instructing the drafting begins.
Going back to a point that Mark Ballard raised, I think that the process is probably a rolling, iterative one. Things will go off track and new things will come in and a system is needed to deal with that. However, taking stock would allow one to revisit where one had been and to look where one was going. That should happen at least annually or, possibly, a little more frequently. At the end of a session, all bills fall with the exception of private legislation. We should kick off any new session by allowing newly elected members a reasonable opportunity to take stock, consider what they want to pursue and initiate consultation. That suggests to me that we should wait six or nine months into the session, but not so late that the process starts to silt up. That method would point to such consideration's happening some time before the summer recess in the year after the election. We would have to revisit that depending on what the committee's ultimate proposals were. The machinery should follow the political will.
One issue worried me there, Paul: you said that members could not be denied the right to use their own resources.
Yes.
I do not disagree with that, but could there not, in effect, be a twin-track approach? Some would use NEBU resources and some would use resources from outwith NEBU. The latter could continue with their bills and hope that they reached stage 1. Therefore, those who could afford to get a bill through, or who had the connections, would be able to do so, whereas the rest would have to put their bills into the mix and simply hope that they came out the other side. That seems unfair.
Inevitably—with my SPCB hat on—my interest is in how we deploy the resources that the corporate body judges to be necessary, which is very much about NEBU, the Scottish Parliament information centre and the various legislation teams. That is a big issue that requires consideration. Parliamentary time is a matter for the Procedures Committee and the Parliamentary Bureau.
If I could wear a slightly wider clerk's hat, there remains a point of principle that members, individually or collectively, should have the right to pursue their own political agendas. I accept the equity points that you made, on which the committee might want to reflect. Nonetheless, to flip the situation the other way and deny members that right carries risks. I accept that, at some point, through the normal democratic process, decisions must be made about which bills should proceed. Certainly a decision must be made about how far along the line a member's bill can be taken. However, any decision that prevented a member from introducing a member's bill would be a difficult one to take in the kind of Parliament that we have. I hope that that is helpful clarification.
That is very helpful.
I thank Paul Grice for coming to the meeting. His evidence has been useful. There will be big decisions in due course about whether we will pursue prioritisation.
Meeting suspended.
On resuming—
I am pleased to welcome a couple of old faces back to the Parliament: Mike Russell and Keith Harding. They will give evidence on their experiences of taking their members' bills through Parliament and on their use, or otherwise, of NEBU. I invite both of them to make brief opening statements about issues that they want to highlight, after which we will open the meeting to questions.
Thank you for inviting me to the meeting. It is nice to be back for a short time. To be frank, though, I do not really miss the Parliament.
My experiences of NEBU were, in a word, excellent. The advice, support and co-operation that I got were outstanding. From the outset, I had a good rapport with the three people who dealt with my bill and the process moved smoothly over a long period. Unfortunately, it took nearly two and half years—Michael Russell and I had different experiences.
My only concern was that, towards the end of the process, I felt that we would run out of parliamentary time and that the bill would not get through after all the work that had been done. In fact, the bill scraped through in the final month of the session. There is, as Paul Grice said, an issue about members' bills in the final six months of a session. Ultimately, the Executive, through the Parliamentary Bureau, determines parliamentary time. Obviously, the Executive will rush through its remaining legislation in the final months of a session. Therefore, Executive bills—as well as committee bills—take precedence at such times. Unfortunately, that means that members' bills, into which a great deal of time and effort have gone, will fall by the wayside.
As I said, my experience of NEBU was very positive and I could not commend it highly enough. I have nothing further to add. I will be pleased to take questions later.
I want to reflect on a point that Bruce Crawford raised latterly and to which Paul Grice responded, on the absolute right of members to introduce legislation. Clearly, that right should be jealously protected and any changes to the present situation should ensure that that right is protected.
From my review of the briefing papers that the committee clerk was kind enough to send to Keith Harding and me, it seems that the issue is largely one of resources. I remember that when the convener and I were members of the Parliamentary Bureau, we discussed the resource issue even at that early stage. Resource solutions are required for resource problems; it seems that there are an awful lot of political solutions within the briefing papers, but I do not believe that they are the right solutions.
One or two things could improve the current situation. A member who wants to pursue a member's bill spends, for whatever reason, an inordinate length of time doing so and there is a variety of reasons for that. One must remember that much progressive social legislation in the House of Commons—for example, the abolition of hanging and legalisation of abortion—went through as private members' bills.
There is also the issue of closing loopholes. For example, in the previous session the leasehold casualties loophole was closed by a member's bill. We should also consider that there is campaigning on issues and forcing the hands of other political parties. Certainly, my bill—the Gaelic Language (Scotland) Bill—was an attempt to do something that had been promised but which had not been delivered. Such bills are the ones that Parliament is least willing to support, so the application of prioritisation already exists.
I had nothing but very good support from NEBU, but the bill process took a long time. Perhaps, rightly, bills that had a better chance of success and that were perhaps less contentious were given a fairer wind than the Gaelic Language (Scotland) Bill. However, I believe that we came within a couple of hours of having the bill passed. It would have been nice to see that happen.
I believe that the current process takes too long and that there could be more support for members who want to introduce bills. I also believe that applying political solutions to the situation might make it worse instead of better. There should be increased resources, members should be able to go outside Parliament for drafting support—that is essential and I do not believe that it would be divisive—and there should perhaps be recognition of the different types of bill that members want to introduce.
Thank you for your opening remarks. Before my colleagues ask questions, I want to ask Mike Russell, in relation to his comments, whether he recognises that one resource that is a pressure point is parliamentary and committee time. The rules at present do not allow the Parliament any say in which bills should progress to stage 1. Essentially, when a bill is proposed, there is nothing to stop its progress until it gets to stage 1, even if nobody in the Parliament apart from the 12 members who signed the bill's proposal gives any indication that they support the bill. On that basis, is it fair that the Parliament's and committees' agendas should be dictated by the member's bill process rather than by the Parliament's having a say in prioritising its timetable?
I am not sure that what you say is true. Standing orders require a process for bills, but they do not give a specific time scale in which they must complete that process. As former bureau members, the convener and I have seen the effect of business managers trying to block bills.
I also do not believe that there is a shortage of parliamentary time in the chamber. Members attend plenary meetings for only a day and a half. It would be perfectly possible to increase parliamentary time. Indeed, there have been discussions about, for example, Friday mornings being devoted entirely to either committee bills or members' bills. I accept that there is a difficulty about committee time, however: the two principal blockages are committee time and drafting resources.
On committee time, it is possible to conceive of special committees being established. I have always thought that a special committee should have been established for the Protection of Wild Mammals (Scotland) Bill. That would have allowed the bill to progress more effectively than it did. It would be possible to have a specialist committee, or special committees, for members' bills—such as exist for private bills—which would be short-term.
I want to pick up on your comment about members' bills taking too long to deal with. As someone who took a member's bill through Parliament, I agree with that. The wheels of justice might turn slowly, but the wheels of getting legislation into the statute book are even slower.
In answer to the convener's question, you spoke of special committees. However, where did you see the bottlenecks in the procedure? If the process is too lengthy, how would you truncate it?
The answer to that is in annex 8 of the briefing paper, which gives the timings for preparing a member's bill. The central part of the process, from drafting the consultation paper to when a member holds the introduced bill and its accompanying documentation in his or her shiny little hands, takes an astonishing 14 months.
I accept Paul Grice's point that the process is intellectually taxing and puts a great amount of pressure on the staff of the non-Executive bills unit, but that amount of time strikes me as being too long. In the case of the Gaelic Language (Scotland) Bill, there had been extensive consultation for about 10 years prior to the proposal. However, it was insisted that we go through yet another lengthy consultation process from which we learned nothing. When we got to stage 1—this will back up the point that Mark Ballard made to Paul Grice—we went through the process yet again by inviting a comprehensive set of witnesses to give substantial evidence. I am sorry that Karen Gillon is not here, as she chaired that process. It seems to me that the process is too long in the middle.
The preparation of drafting instructions is lengthy, but it takes much longer than necessary because of the pressure of work on the non-Executive bills unit. It might be possible to tease out the committee bills from members' bills and to devote more resources to members' bills by setting up a separate team to deal with committee bills. It was unfortunate that my bill was being dealt with at the same time as the Commissioner for Children and Young People (Scotland) Bill, which was an enormous job—the non-Executive bills unit did a tremendous job in that regard.
The resources issue involves not only staff, but time. You mentioned that it might be useful if other committees were to examine members' bills and that Parliament could sit on a Friday, as required, to enable it to scrutinise such bills. However, you and Keith Harding are well aware of the amount of MSPs' time that is taken up by constituency work and so on. Furthermore, one of the founding principles of the Parliament was that we would be a family-friendly Parliament—I do not know whether we are, but that was the plan. How do you envisage that members would split their time between their normal committee work and the work that would have to be done on a special committee to consider a bill, while continuing to fulfil their constituency work responsibilities? Of course, members who have sat on private bills committees have done that already.
The problem could be addressed by taking up Mike Russell's suggestion that Parliament meet more often and use, for example, Friday for consideration of such bills.
I agree with the point that Mike Russell made about the length of time involved. In both our cases, the passage of the bills took two and a half years. That amount of time must be taken into account. I do not think that the non-Executive bills unit can improve on that a great deal with the timetable that it set out in annex 8 of its report.
On that basis, perhaps no member's bill should be accepted after the first two years of the session. Realistically, bills that are submitted after that date will not get through and the non-Executive bills unit will be tied down with unproductive and unnecessary work.
I remind members that they received that report from the non-Executive bills unit at an earlier meeting.
If the right of members to introduce bills is to be preserved, you cannot say that that right is exercisable only in certain months of the year as if it were akin to shooting grouse. The downside to the right of MSPs to introduce bills is that Parliament must make every effort to ensure that such bills are properly considered and given a fair wind. Of course, not every bill will be passed, but it was extremely frustrating to get unanimous approval for my bill at stage 1 only for the bill to fall because of lack of time in the last week of the session, in which we sat for less time than usual. It should be possible to extend sitting hours to deal with members' bills if Parliament values such bills.
As I was trying to say at the beginning, a lot of important legislation at Westminster has come in the form of private members' bills. There are signs that, in time, that might also be the case in Scotland.
Are you saying that the issue is not one of prioritisation but of resources—for example, ensuring that members are able to get private support for drafting their bills—and of timing? We have been focused on prioritisation, but you are suggesting that that might not solve the problem.
I want to raise an issue relating to prioritisation, which is largely political. It is a mistake that arose from the work of the consultative steering group. When it drew up its wonderful ideas for the Parliament, the consultative steering group was visionary, but it was sometimes wrong, which we saw from the first standing orders. To allow two bills per member over four years would be pushing it, and I think that a reduction to one single bill per member would probably be sensible.
I do not share Paul Grice's worry about a ballot. I am not keen to imitate Westminster at every possible occasion, but it seems that a ballot is in fact the best way forward for the sake of resources, which is what we are concerned with here. It is probably the fairest way. A ballot would be drawn for the allocation of NEBU's resources, and the first three or four bills drawn would get those resources. That would not prevent members from seeking help from outwith the Parliament, but it would mean that members knew whether they would get support from the Parliament or whether they would have to either give up the idea of their bill or go elsewhere. The ballot is probably the easiest and best way in which to determine that, because all other ways of making the decision, even if they are not political, might look political, which would be even worse.
To be fair to the consultative steering group, it said that members should have the right to introduce two bill proposals a session, not two bills. The standing orders unfortunately did not reflect that.
As you know from having read the NEBU paper, to which you referred, there is an existing set of criteria for members' bills. How did the two of you feel about those criteria? Did they come into play with either of your bills? Could you reflect on the validity of those criteria in the process of effectively prioritising resources?
I think that the criteria are quite sound. They are relatively simple, although they are lengthy to address. The criteria are needed in order to weed out some of the weaker bills or proposals, particularly ones with financial implications. They did not pose a problem for me; in the case of the Dog Fouling (Scotland) Bill, everything went through quite smoothly.
I presume that Mark Ballard is referring to annex 5 of NEBU's paper, which is on the prioritisation criteria for bills. Those criteria are very vague. No member should be introducing a bill that is not within the legislative competence of the Scottish Parliament, because it will not be granted a certificate of competence by the Presiding Officer. There is therefore no point in doing that.
The one criterion that I fell slightly foul of was the one that says:
"There should be no likelihood of legislative action in the reasonable future either in the Scottish Parliament or at Westminster in the same area of law."
That depends on the what definition we use of "the reasonable future". That was one of the reasons why there was a slight reluctance with regard to my bill. I was being pushed as hard as possible to get my measures through, but the feeling was that there would be legislation on Gaelic eventually, so my bill might have been a waste of time and resources. In fact, my draft legislation, which almost made it but not quite, was influential in shaping the subsequent bill. I think that it will also prove to be useful for the debate on the issue. I suspect that the Executive's draft Gaelic Language Bill will go through much more smoothly. Many of the issues will already have been ironed out. The first bill will be seen to have been part of the process of changing the situation. As Paul Grice said, it was worth doing, even if it did not come off.
As I said, the criteria are very vague. I would be worried, however, about any other criteria being imposed if they seemed political—even if they were not. The idea that the Parliament as a whole might vote on prioritising bills, no matter what, will be viewed as political. Despite the presence of a business manager here, I would say that the involvement of the Parliamentary Bureau would be a very divisive step in trying to make prioritisations.
Over to the business manager, Bruce Crawford.
One of them, anyway. I want to pick up on Mike Russell's last point, about the Parliamentary Bureau. What would your view be if the bureau no longer functioned by weighted votes? Secondly, I know that Keith Harding thinks that the criteria for selecting members' bills are reasonable, but would you make any additions, deletions or other amendments to them? The convener said that there was nothing preventing a bill from making it to stage 1, but the criteria act as a brake. If we could improve on them, they might in themselves facilitate a weeding-out process, as long as the criteria did not become in some way political. I have forgotten my third question, but I might remember it by the time Mike Russell answers those two.
I will deal with the first two now.
We will see how we go.
As there is little prospect of the Parliamentary Bureau moving from weighted voting to non-weighted voting, I am not sure how much time we should spend on that, but I still think that business managers have enough power, perhaps more than enough power—it is perhaps heretical for me to say that as an ex-business manager. It would be wrong to involve them in the process.
It would perhaps be possible to consider increasing the level of support required for a bill. I do not think that that should be the ultimate criterion, because some very important measures may not attract a wide degree of support. However, an indication of the serious intention of the chamber to take the bill forward might be if it were supported widely across the political parties or heavily supported by the majority of back benchers. In the end, the allocation of resource—the non-political issue—would probably be best dealt with by a ballot for resources. That would leave members free politically and under standing orders to introduce their bills, although they might not have resources allocated to them in the Parliament simply because those are not available.
That is what my third question was going to be about: the ballot, which is the method used in the House of Commons. On the surface that option seems attractive, but I wonder what happens if we dig down a bit. If we assumed that four bills were going to be successful in a ballot, it would take only one of the four bills to require considerable resources—perhaps all the resources—for the chances of success of the other three to be undermined. The ballot cannot by its nature take cognisance of the complexity of an issue or the amount of time that will be required to construct a bill. For example, the reform of charities bill that Jackie Baillie proposed did not get there—it should have been seen as an Executive bill because the scale of the subject is so significant.
That difficulty also arises in the current system. One does not know what will arrive tomorrow that might pile on the resource requirements. NEBU would be—or should be—able to predict a modest number of bills that its resources could support over the next 12 months, given that it would perhaps take on committee bills if there is not a separate unit. That would establish the modest number of bills—two or three from a ballot—that would get the resources. A ballot is not ideal, but I suspect that it is fairer than any other system and I suspect that there are fewer grounds to complain about it than about any other system—particularly for the smaller parties that may feel disadvantaged.
I have a question for each of my esteemed former colleagues. The first one is to Mike Russell, who referred to reinventing the wheel so far as evidence is concerned and to the fact there had been much discussion about the pros and cons of the Gaelic Language (Scotland) Bill before it was introduced. How would you get over that? Although the average MSP is not an expert on everything, he has to be able to ask questions and get practical answers from sources. How can that evidence be summarised to cut down on the amount of time that is needed?
I have always deferred to Jamie McGrigor as an expert on many things and I know that he knows a great deal about nephrops in particular.
As far as the Gaelic Language (Scotland) Bill and general knowledge of the subject are concerned, my complaint is not that members were not able to get the information; it is about the paralysis of consultation that we have got into in Scotland. I noticed when I was listening to the radio this morning that we are now in apparently perpetual consultation on certain issues—I will not name the issues—so everybody gets consulted all the time.
A Gaelic bill had been consulted on for 10 years. There had been two major reports, the only weakness of which was that Comunn na Gàidhlig did not draft a bill at the end of its reports—alas; I wish that it had done so. Some people are beginning to do that and it is extremely helpful.
It was unnecessary to have a further consultation before taking detailed evidence at stage 1. It is a matter of judgment, but I think that on many bills the detailed evidence stage at stage 1, at which point there is a bill and there is flexibility to build and develop it, is as good as the type of open-ended consultation that often takes place, which often involves a statutory list of consultees—three quarters of whom do not know anything about the issue. The British Potato Council gets consulted on everything. It had very limited views on Gaelic and, in so far as it had any, it did not let me have them and did not reply.
In all those circumstances, I think that it would be better to have detailed stage 1 consideration of a proposal that is well developed. We must remember that if a member introduces legislation in a particular area, by and large they will be an expert in that subject or will have dealt with it for a long time. I know that Mr Harding is an expert in his subject.
Do you want to add anything?
I would endorse what Mike Russell says. I think that far too much consultation is going on; it is the biggest growth industry in Scotland. When my bill was being considered, there was duplication of consultation. We held an extensive consultation, which had a very high response rate of 70 per cent. All except one of the responses were favourable. The witnesses whom the Local Government Committee called in were people whom we had already consulted. There is duplication, and eliminating that would slightly reduce the time taken. The results of the consultation could have been circulated to committee members and they could have read them in the spare time that Cathie Craigie says that they do not have; there was no need to call in witnesses.
My second question was for Keith Harding. You said that your main worry in the final six months was that your bill would not have sufficient parliamentary time to go through. Will you expand on what the obvious factors were that showed that that might happen? Did you experience any other difficulties?
The difficulty became apparent when NEBU told me that we were running out of time. In about October 2002, we ran into difficulties on a particular aspect of the bill—the legality of collecting on-the-spot fines—which required a change in another act.
When the whole process started, I naively thought that the bill would be a single-page amendment to the Civic Government (Scotland) Act 1982. That was the intention but, when the proposal went to NEBU, it suddenly blossomed into a 12-page bill and that brought with it a number of difficulties. It was necessary to repeal parts of various acts over the centuries and that was an interesting operation but, in about October, we ran into the difficulty that I mentioned. Many meetings were held at stage 2 to try to overcome that problem; they are not mentioned in the committee's lists, which refer only to meetings at stage 1. Those meetings involved the Executive, me and NEBU. I was fortunate in that the Executive supported my bill; it had indicated as early as the previous July that it would be supporting it.
The bill was supposed to be considered by the Local Government Committee in November 2002, but the committee had insufficient time and consideration was delayed for two weeks, which meant that we were into December. The Christmas period came and I recall being assured that the bill would be dealt with in January. We ran into another problem to do with legality, which was dealt with in a final amendment at stage 3. The issue was finally overcome after much discussion between NEBU's lawyer and the Scottish Executive's lawyers, who seemed to have great difficulty in agreeing—I think that that is common with lawyers. Eventually, matters came to fruition.
I was told that the stage 3 debate would be in February, but it was delayed because of a lack of parliamentary time. Ultimately, the bill was passed in the early part of March. There was a genuine worry that my bill, like Mike Russell's bill, was going to run out of time.
I had no other difficulties. As I have said before, I could not have asked for more support from NEBU, the Executive and the Local Government Committee. The bill went through extremely smoothly; other than the delay to which I referred, I had no concerns about the way in which the bill progressed through Parliament.
Are there any other points?
It is possible for the Executive to kill a member's bill by refusing to produce a financial resolution. That is what happened to my bill; it was not killed by a lack of time. If the committee is considering members' bills seriously, it will want to examine that issue. Although there should always be a power for the Executive to stop things happening, refusal to produce a financial resolution is fatal for members' bills; that is what killed the Gaelic Language (Scotland) Bill.
I have a final question. You have both highlighted problems relating to the pressure on time towards the end of a parliamentary session. If there were some form of prioritisation whereby the Parliament indicated that it wished not necessarily to pass bills but to allow them to go through the various processes, would that ease some of the pressure on parliamentary time—unlike the present, rather unco-ordinated approach, which certainly puts pressure on committees?
The bills that were successful in a ballot and had the resources would be the ones that the Parliamentary Bureau would prioritise in the timetable. That would be entirely natural.
I was working on the assumption that, at the very latest, my bill would be ready to submit to the Presiding Officer in September 2002. It turned out to be the very end of October, which was two months too late. We ran out of time by two hours, I think. The Executive refused to allow time to be allocated and to bring forward a financial resolution. It would have been nice to be on time.
I have nothing to add to that.
Thank you both for coming along and telling us of your experiences and giving us your thoughts. I am sure that they will be useful to the committee when we reach our conclusions in this inquiry.