Procedures Committee, 18 Sep 2001

Meeting date: Tuesday, September 18, 2001

Official Report 145KB pdf

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Public Bills

Item 5 deals with guidance on public bills. Andrew Mylne joins us for this item. Andrew will understand that, although members have faithfully read the report, they might not have gone through the existing guidance for comparison purposes. I invite him to highlight the most significant changes.

The foreword that makes up the first page of the document is intended to explain where the main differences lie and it lays out the rationale for the changes that have been made.

Little of substance should be new to the committee, because most of the changes in the guidance simply reflect changes to standing orders and to practice, which have been made as a result of the committee's deliberations. However, we have taken the opportunity to tidy up the wording and to make it more clear and helpful throughout the document. Therefore, although a lot of the words have changed, little of substance has.

Masterfully batted back, Andrew.

Do members have points to raise?

I have one point to raise. Perhaps Patricia Ferguson could guide us—I think that she was in the chair at one of the meetings of Parliament that I want to talk about.

I am not sure whether each section of a bill must be voted on regardless of whether or not there is an amendment to it. I think that it must be and I also think that that is the Westminster practice. The document does not appear to cover that, but I might have missed the relevant section.

Mr Gorrie's point is covered in the guidance. The situation here is different from that in Westminster. In both houses in Westminster, at the committee stage of a bill, the formal decision on each clause—as they call sections—is taken by a decision on what is called a question on clause stand part, which is archaic language that is used in Westminster. That question allows an opportunity to decide whether a particular clause should be included in a bill. The rules at Westminster are such that, at committee stage, it is not possible to lodge an amendment to leave out a clause. Therefore, if members want to remove a clause from the bill, they must vote against the question on clause stand part. If the division is lost, the clause is removed from the bill.

That is the Westminster system. We have a different system here, in which the way to remove a section or schedule of a bill is to lodge an amendment to omit it. Such amendments are subject to all the normal rules about amendments and are treated like any other amendment. That system has a number of advantages. In particular, it means that notice is given of those amendments just as with any other amendment. Such amendments appear in the marshalled list as one of the numbered amendments. At Westminster, such an amendment is in a different category and is treated rather differently.

In consequence, it does not make sense to allow MSPs to divide on the question on the section because that would give them two procedural mechanisms to achieve the same result. In other words, if members want to oppose a particular section of a bill in this Parliament, the way to do that is to lodge an amendment to leave the section out, not to oppose the question on the section.

The mechanism of considering each section separately at stage 2 is a helpful device to allow points to be raised that have not been covered in lodged amendments. It might be that the points on a particular section that have been raised through amendments are quite specific and focused, but members might want to discuss the section more generally before moving on. There is an opportunity to do that.

My concern is that issues might not be properly debated. If we do not have an equivalent of the Westminster procedure—"clause 3 ordered to stand part of the bill"—how can the committee debate the section? If there is no amendment, but some members wish to debate the section, can they do so?

Yes. We have always tried to make clear to conveners who are handling a stage 2 proceeding that the question on each section affords the opportunity to discuss it more generally. That is because members might have generalised doubts or queries about a particular section of a bill, which they have not been able to crystallise into the terms of an amendment. Members might not have thought in advance to lodge an amendment about issues that have arisen as the debate has gone on.

It seems reasonable that members should have a chance to have a short debate—if need be—about any section or schedule of a bill without having to go through the rigmarole of lodging a specific amendment to achieve that purpose. Members might just want to discuss a section; they might not necessarily want to change anything.

It must be said that members have not used that opportunity very often.

That is because nobody knows about it.

It exists.

I have been through two committee bills and I did not know that we could have a debate other than on an amendment. Now that I know that, I will make sure that everybody knows it. That might slow the process down a wee bit.

We have tried to explain that to conveners in guidance.

The conveners have kept it a carefully guarded secret.

That was the way in which we conducted the debate on the Erskine Bridge Tolls Bill in the chamber last week when we met as a Committee of the Whole Parliament.

When we did that last week, I thought that the possibility of an amendment was ruled out because by approving the general principles of the bill, we had made it impossible to delete section 1. The entire substance of the bill, other than the name, was in that section.

That is correct.

Even if it had been possible to amend section 1, you—as the convener—would not have allowed it to be taken out because no one had lodged an amendment to do so. An amendment would still have fallen on that basis.

Andrew Mylne will keep me right, as he always does. When we got to section 2 I asked whether any member wanted to lodge an amendment because, even at that stage, it would have been possible to accept an amendment. The Committee of the Whole Parliament would have had to adjourn—which I pointed out—but we could have accepted an amendment to the second section of the bill because it would not have been a wrecking amendment; rather it would have been an amendment to leave out part of the bill.

Are there any other points that members wish to make on the report?

I have a point to make on paragraph 3.10 of the guidance on public bills. I would like confirmation on the different steps in stage 1 of a committee bill. The report states that because such a bill must go through such an exercise of agreement in committee, evidence must be taken before the bill is introduced. The proposal for the bill must come before the Parliament for it to agree whether the bill can be introduced. Committees must follow a rigorous procedure at that point.

I am concerned about the implications of referral of a bill to other committees later. If a committee has gone through such a rigorous process to get the Parliament to agree to its proposal, there must be some trust and faith in the committee's drafting of the bill. I could not see any recommendations in the guidance about what is required at stage 2. The question whether a committee bill should be referred to another committee or to a Committee of the Whole Parliament might become an issue.

The points in the guidance underline the pre-introduction work that has to go into a committee bill. The vigour with which the proposal for a bill is introduced reassures the Parliament about what has not been seen at stage 1, but will be introduced at stage 2. That is why a committee bill is quite distinct and separate from member's bills or Executive bills.

That is right. The three-stage process that applies to all bills is intended to ensure that there is informed input by a committee. There is agreement on the general principles, then amendments to the bill, then a decision on whether to pass the bill. The difference with a committee bill is that the first bit of the process is to some extent the other way round; the committee's detailed consideration and input comes at the stage in which it is formulating its proposal before the bill is introduced. At that stage the bill escapes the normal stage 1 inquiry on the ground that that is likely to replicate what the committee that introduced the proposal has done.

The guidance is meant to reflect the rules as they stand; in other words, the minimum requirements. The rules are reasonably flexible in that respect. There is, for example, nothing to prohibit a committee that has had a bill referred to it at stage 2 from taking evidence on the bill before it reaches the formal business of considering amendments. That has always been in the guidance. Time scales do not often permit that, but it is possible. Committees have the power to take evidence on any matter that is referred to them. That is an opportunity that applies to any bill, not only to a committee bill. It is within the constraints of timetables that are established for a bill. The Parliament has a degree of flexibility to allow evidence to be taken on a bill, or to refer the bill to committees for which it is relevant at the appropriate stages.

I hope that that goes some way towards answering your questions.

It does. I have another question about the consolidation committee that is referred to in paragraph 3.24 of the guidance. Do standing orders cover appointments to that committee? Who establishes the committee and on what basis is it established?

I spent six months discussing the Housing (Scotland) Bill. There was a strong case for a consolidation bill on housing, in which case the most appropriate committee to refer the bill to would have been the Social Justice Committee.

Under the existing rules, the situation is quite clear. There is a fairly precise definition of a consolidation bill. If a bill satisfies that definition, it falls under the rules that apply to such bills. As paragraph 3.24 of the guidance states, it is for the Parliamentary Bureau to propose the establishment of an appropriate committee, subject to the constraints that are set out in the rules. An ad hoc committee would be established for the purpose.

That is the only procedure that is available for a consolidation bill. In that case, the committee would have to include at least one member of the relevant committee. As Fiona Hyslop said, in the case of a housing consolidation bill, that would almost certainly be the committee that considered the Housing (Scotland) Bill. The situation is as described in the guidance.

If members have no other points to make on the paper, do we agree to approve the paper?

Members indicated agreement.