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Welcome to the seventh meeting of the Procedures Committee. We have quite a lot of paper in front of us, but we have been over much of it previously—he said hopefully. We might manage to get through it without getting bogged down in revisiting issues.
That takes us to issue 43 and rule 6.11 of the standing orders, which relate to the Subordinate Legislation Committee. In a letter, the clerk to the committee outlines the committee's proposed amendment, which is incorporated in new rule 6.11.1(a)(ii), which states:
I had a chat with the clerk to the Subordinate Legislation Committee this morning. He indicated that many rules for sheriff courts and Court of Session procedure are made by statutory instruments, but are not laid before the Parliament. That committee would like to see them.
Does that exhaust the range of additional items of subordinate legislation? I understood from our earlier conversation with the clerk to that committee that there are additional instruments, which do not fall within that legal definition.
The possibility was raised that other subjects could be included, but I am not in a position to give more explicit guidance on that.
The clerk to that committee attempted to explain the situation to me by referring to matters that derive from Westminster legislation. The letter that we received from Alasdair Rankin indicated that there would be a letter from the Minister for Parliament, but we have not received it. Can Iain Smith expand on that point?
I cannot at this stage—the issue is still being fully considered, and I hope that that letter will come to you early.
That presents us with a difficulty. While I have no difficulty on the legal instruments, I do not understand the additional points that we might have to take on board. I am not suggesting that there is anything inappropriate in what is proposed, but we must know what is being asked of us. That might mean that if we cannot clarify the matter, the issue might be lost as one of our priorities. I suggest that we meet later this week or early next week to examine that issue and to try to bring about a successful conclusion so that we do not lose the opportunity to include the issue in our final report on the standing orders. That requires that the Executive clarify urgently what it wishes to do.
The proposed wording seems to be omnibus. It is not restricted to legal issues, but covers everything.
When I first read that, I thought that it went beyond omnibus. I thought that it would give the committee a remit to examine matters that were not related to Scottish statutory instruments. I do not understand what is meant by the word "general". This appears to me to be almost a vires issue, which goes beyond the remit of this Parliament.
I am interested to know what the word "general" means in that context.
Does anybody know? John?
No, I am afraid that I cannot help.
We are a little under-prepared. I suggested to Alasdair Rankin that we would appreciate some clarification. While I am apologetic about the need to do so, we will have to hold a brief additional meeting.
I thought—and this might be a stupid idea—that the word "general" referred to issues not specific to a subject covered by a committee of the Parliament, but that is a layman's guess.
That is as good a guess as any.
Could we have a brief note that defines what the word means and then, if necessary, we can have another meeting? We would like to understand this.
If we do it that way, we will be approving the change unless there is any subsequent objection. We will be using a sort of negative statutory instrument procedure. I am wary of that because we risk doing so to spare ourselves—as busy people—the inconvenience of a further meeting. I would rather know what I will be agreeing to than to agree only to find out that I do not like it and that I want to object.
Could we combine the two?
Yes.
We could have a note to explain that to us and we can then wait on you at your pleasure.
I like the sound of that, but I am not sure that it is covered by the standing orders.
Or by the Standards Committee.
That deals with chapter 6.
I might be being slow, but does issue 41 relate to chapter 9, and are we coming to that? It is about the financial memorandum and is a substantial matter.
That is dealt with in chapters 17 and 9.
It is an essential matter.
Chapter 17 is of some concern.
As we are still testing the water as to how committees operate, we would like to be able to review the position on deputy conveners in a few months'—or perhaps even years'—time. If, in future, it were decided that it would be sensible for committees to have deputy conveners, we would like to be able to do so without having to go through the rigmarole of changing standing orders. The intention is to go ahead and appoint temporary conveners, but to leave the door open for the Parliament, at some future date, to decide that committees should have deputy conveners.
With respect, if we adopt the standing orders now, and retain the provision for deputy conveners, you must then determine a method for appointing deputy conveners. That will bring up the issues that were put to us in the first place, such as how to accommodate the need for delicate party balances.
I accept that that issue will have to be resolved if the Parliamentary Bureau decides to put a motion to the Parliament to appoint deputy conveners.
You said "if". In effect, the Parliament is working unconstitutionally, in that we have not, so far, implemented such a measure. I do not see any way in which you could, legalistically, justify not having acted upon that. Surely, having come to your decision, and having got us to drop our proposal for temporary conveners, you have to move quite urgently on deputy conveners.
The idea—which comes from the bureau, not just the Executive—is not to drop the proposal on temporary conveners: it is simply to have an enabling clause in the standing orders to allow the appointment of deputy conveners if the Parliament so decides. If, at some point in the future, the bureau and the Parliament decide that they would rather have deputy conveners than the temporary convener arrangement, they are able to do so.
Would the temporary convener arrangement fall when deputy conveners came in? Logically, it should.
Yes. Paragraph 8A of the draft says that when a committee does not have a deputy convener, the temporary convener comes into effect.
Therefore, you would amend paragraph 2A to read:
That makes it clear. It is an enabling provision that allows the Parliament to do that if it so wishes.
Let me throw that open for discussion.
That is a neat solution. I accept that Parliament is at present acting unconstitutionally, in that there are no deputy conveners. The appointment of deputy conveners is a political issue that has not yet been agreed. This is a useful compromise—the position of deputy convener remains in theory, but it may be that, at some future date, this or another bureau will wish to bring deputy conveners into being. However, because there are no such people at the moment, we require a mechanism by which committees can continue to meet if the convener is absent. I was attracted by the temporary convener solution when the clerks first suggested it. It is a useful vehicle, and gives us a neat solution that almost squares a difficult circle. I am happy with it: it accords with what the bureau wants and with the best thinking of the committee.
Is that the general view? Are we all agreed?
All right. Chapter 12 is taken care of. Everything in chapter 13 was dealt with previously, and there were some small points in chapter 15 that we dealt with at the previous meeting.
In the middle of the first page of chapter 17, there is a paragraph in square brackets. It says that more flexibility is needed for financial resolutions than is given by rule 9.12.6 of the standing orders. Our initial approach was to consider extending the three-month restriction in the rule to six months. Members will appreciate that this is a matter of business management, to give the business managers more flexibility. However, that approach has to be considered alongside the option set out in Mr McCabe's letter, which is to suspend the standing orders as indicated in rewritten rule 17.2, also on the first page. That option would allow rule 9.12.6 and its restrictions to fly off were a motion from the bureau to be received.
The problem is that stage 1 of a bill and a financial resolution, if required, must be taken within three months of each other. We had thought that extending that time limit would deal with the difficulty, which seems to affect only that particular process. Iain, as I understand it, the Executive, and therefore subsequently the bureau, are not happy to do that, and want to proceed on the basis of suspending standing orders. That seemed a bit strange to me.
There are certain advantages in taking the route of suspending standing orders. They go beyond the simple issue of the time scale for a financial resolution. We had found that there were some difficulties in dealing with emergency legislation, when a number of standing orders had to be suspended. At present, the problem is that standing orders have to be suspended for a specific meeting, as opposed to for a specific item of business. For the emergency legislation, it would have been helpful to be able to suspend the standing order for the item of business, so that all procedures could have been gone through with the necessary suspensions. There would be some benefit in going ahead with the change, irrespective of the decision on the time scale for a financial resolution.
Why, in paragraph 17.2, have you deleted "any member" and proposed the insertion of "the Parliamentary Bureau"? Although I understand the point that you made about financial resolutions, that deletion and that insertion represent a significant shift in power from the situation that was envisaged when the consultative steering group considered these matters.
The intention is to show that the clause is for the benefit of Parliament and not for the benefit of the Executive. If the wording is "any member", the Executive could try to force business through by suspending standing orders; if it is "the Parliamentary Bureau", there has to be at least an attempt to reach consensus in the Parliamentary Bureau, rather than use the weighted majorities in the bureau. The idea is that the Parliamentary Bureau is there to protect the minority members and individual members from abuse by the Executive.
That is a noble interpretation of the role of the Parliamentary Bureau, if I may say so.
It depends on one's opinion of the purpose of the change. The purpose of the change is to allow flexibility if problems with standing orders arise that we have not yet envisaged. We do not yet know which other problems we may find with the standing orders. We have dealt with the ones that we have come across so far, but this change would allow flexibility to look at individual issues as they arise, and, I hope, to resolve them.
I am not a great standing orders person. However, to build standing orders on the assumption that they will be regularly suspended does not seem to me to be at all a clever idea. What is the purpose of the original rule? Presumably, it is that parliamentary legislation should take some account of its cost. Is there any purpose in the three-month rule, or in having any other time limit? Could not the purpose of the standing orders be addressed in some other way? I would need a lot of convincing that one can build a whole edifice on the assumption that one will regularly remove one of the stones. To do so seems daft.
I was generally comfortable with the proposal when the bureau discussed it, but the explanatory note that John Patterson has written disturbs me quite a lot now. It suggests that a member would no longer have the right to move a suspension of the standing orders for either Parliament or committee business, and that such a suspension would require a decision of the Parliament. That is extremely inflexible.
It appears to me that there is more in this proposal than a response to the specific difficulty that gave rise to it, about which I am entirely sympathetic. We should try to help the Executive smooth things along and assist the bureau to handle business within reasonable time scales, but this proposal seems to have wider implications.
I agree with Donald that standing orders should not be suspended lightly. If the bureau were responsible for moving such a motion, that would counter claims of abuse, from whatever side they come. Could the clerks clarify what is meant by:
Our point is simply that the proposal builds in more inflexibility.
Is that a point of principle, or do you think that the proposal would cause practical difficulties? I know that that is difficult to predict.
It might do.
Iain was fairly honest in saying that this proposal might have wider implications and in explaining why the amendment had been put before us. I am comfortable with it because, although it offers flexibility, there is a built-in control mechanism. This power should not be used willy-nilly, and the reference to the Parliamentary Bureau is there to ensure that the system is not abused.
You have said that, and the memorandum attached to the minister's letter mentions the bureau's role
It is my understanding that standing orders as presently framed do not allow committees to suspend them. It has been suggested that our proposal amounted to a change to the present position, but I do not think that it is.
How do members feel about that? Iain's suggestion is—if I have misunderstood him, he should butt in—that we disentangle the two proposals: in other words, that we should not replace "member" with "Parliamentary Bureau", but should introduce the phrase "for any item of business".
That is a step in the right direction and accords more closely with the bureau's intention when it discussed this issue. However, we are now in danger of having three balls in the air. First, there is the issue of timetabling financial memoranda, which can be dealt with in the interim by increasing the time limit from three months to 12 months. Secondly, there is the issue of the regular suspension of standing orders and the rights of members to be involved in that process. Thirdly, there is the issue of suspending standing orders because that is necessary to deal with a piece of legislation, rather than because of the circumstances of the meeting.
We had suggested an increase to six months, but I have no difficulty with making it 12. What Mike has just said appeals to me as it is in line with how we have attacked every other issue—by solving the immediate problem and embarking on a longer-term process of examining the underlying issue in the light of experience, taking into account the wider implications.
I support that, convener. If we start to split things up, we may get into a difficult situation from which it will be hard to escape. We should opt for the delaying tactic.
Could the Executive live with that? We would increase the time limit from three to 12 months to deal with the immediate and any conceivable future difficulty but, as part of the committee's forward work load, we would consider the whole issue of the suspension of standing orders and how it should apply to specific items of business.
My concern remains that if we come across an unforeseen difficulty with the existing standing orders when dealing with a piece of legislation, we will have the same problem and may end up not being able to resolve it within standing orders.
In that case, under existing procedures a member could move a motion for the suspension of standing orders.
As I have said before, the problem with that is that the present wording of standing orders allows for their suspension only for a specific meeting. If we are trying to deal with a problem that will arise at several different meetings in the course of a bill's passage—when it comes before the Parliament, when it come before a committee and when it comes back before the Parliament—it is necessary to suspend standing orders repeatedly to deal with the same item of business, rather than to do it once and for all.
We should debate that issue more fully, rather than implement a change now. I appreciate the problem and accept that it exists. It is right that the Executive has drawn it to our attention, but I am sure that we cannot solve it, even by careful drafting, at this meeting.
On the whole, suspending standing orders is used by the establishment to push through measures to which there is opposition. We need to be careful about reducing the chances of people who want to fight a vigorous rearguard action, whether on the Adults with Incapacity (Scotland) Bill or on hunting. They deserve a proper hearing. Suspending standing orders once for an item whenever it is debated is the wrong approach. The people who are sponsoring a measure should have to go through that procedure every time that it is debated; that will encourage them to stay within the rules. I would need to be persuaded further of the need for any change, so Mike's suggestion is a good one.
Iain, how often will the problems with time limits arise? Presumably they will arise only at the very outset.
The problem has as much to do with recesses as it has with when Parliament is sitting.
That would be covered by Mike's suggestion to increase the time limit to 12 months.
Members' bills will be affected more than Executive bills because they do not undergo pre-legislative scrutiny, which may mean that committees take longer to deal with them at stage 1 than they would Executive bills, on which there will already have been consultation and so on.
This has a great deal to do with the work load of committees. It has become an issue because of the experience of the Justice and Home Affairs Committee, which is having to complete stage 1 consideration of two bills before Christmas because the three-month clock is ticking. I understand that the committee also wishes to consider as a priority the Abolition of Poindings and Warrant Sales Bill, which means a further concentration of its work load. If three bills were lodged together and all of them went to the same committee, its work load would be impossible, even if there were no difficulty in terms of public reaction. The Executive is being very responsible about timing the introduction of bills so that that does not happen at the moment.
Would the proposal for an extension of the time limit to 12 months remove that difficulty?
Yes.
I think that we have reached a degree of consensus on that. We have agreed that we should have another brief meeting to consider the issue that we discussed earlier. Members will have an opportunity to raise any further points at that meeting, if they wish. We have explored the implications of this proposal as much as we can in the light of the understanding that we have been given, but I am happy to make provision on the agenda of our forthcoming meeting for re-examination of any aspect of this issue that we have overlooked. That is fair to everybody, given that people may want to go away and think about the outcome of this meeting.
I want to make two general points. First, the Executive has not had a great deal of time to examine the proposed changes. We will submit a letter if we would like any technical changes to be made, which can be considered at the committee's forthcoming meeting. Secondly, because I have a tidy mind, I am not happy with the numbering of changes to standing orders. As these will be, in effect, the first standing orders of the Scottish Parliament, they should be numbered consecutively. On the first page of the draft document, for example, rules should be numbered 3, 4, 5, rather than 3, 3A, 4. I hope that when these are submitted as draft standing orders they will be renumbered.
They will be.
At the moment, we cannot do that without changing the numbering in the reports. When we issue annexe 4, the fully revised set of standing orders for the report to Parliament, we will take that into account.
I understand that it is the Executive's intention to respond to the report, so that its response can form part of the debate on that. That is entirely welcome, although the Executive has been kept closely informed throughout this process. However, we set ourselves the clear target of implementing the changes to standing orders by the end of November. Given that some of these changes are important in terms of public perception of the Parliament, it is absolutely essential that space is made in the business programme—I say that in the hope that the Executive is listening—before 16 December to debate and implement the revised standing orders. I understand that implementation of changes is instantaneous once they have been adopted. Is that right?
The motion can make it so.
I think that we should do that. We will reconvene in January. We need some time to prepare for the new format for questions and other matters. The report will also have to be printed and supplied to members. Therefore, we must keep things moving.
Absolutely.
It is fair to lay down markers, although implementation is a matter for the bureau and the Executive.