Official Report 132KB pdf
Karen Gillon has indicated that she will not be here. I am not sure about Bruce McFee and Richard Baker, but I hope that they will come.
In response to some written comments from the convener, suggesting that three of the paragraphs could be clarified, I have attempted a redraft of paragraphs 2.18, 3.7 and 4.45, which I hope takes on board the points that the convener made.
I read through the document and made some notes. I suggest that we go through it page by page. Members who have comments on any page should say so.
I have a comment on page 5. Last week, I raised a question about why, if our standing orders are clear, it is necessary to have guidance. I was advised that the guidance is a useful tool for those who must ensure that the business of committees moves smoothly—the conveners and clerks of committees—and I accept that, but we should make it clear in the introduction and the foreword that the committees are bound by standing orders. I do not know whether that should be in paragraph 1.1 or perhaps in paragraph 1.5—I am happy to leave that with you, convener. I just want to underline the fact that the standing orders govern the work of the Parliament.
Last week, I took the view that it was important that the status of the document was clarified. Having read through it again, I think that without putting paragraph 1.4 in letters an inch high across the front of the document, it is probably pretty well defined in that paragraph.
In documents such as this, is it ever the habit to put important bits in heavy type, or do you not really go in for that?
Andrew Mylne is probably more familiar with the style and layout of the rest of the material than I am, but I am sure that we could either move that paragraph up or put something into one of the earlier paragraphs that would address the points that have been made.
That is helpful. Two people have made the same point in different ways.
Yes.
As I read through the document, one point came to mind in relation to committee substitutes. I suppose that I was playing devil's advocate, or perhaps I was just a bit sleepy on the train. Paragraph 2.29 is fairly clear and straightforward, but it appears to indicate that parties with five or more members are able to appoint substitutes regardless of whether they have a member on the committee. That is how it reads.
I will certainly look at that.
That is a good point. The guidance would have to state that such parties can appoint substitutes for those committees on which they have members.
I also had a query about paragraph 2.29, which relates to the continuing question of what is down to the rules and what is custom. The second sentence states:
That is a rule.
That begs the question whether the document should be more precise about when something is a rule.
We could presumably add, "Under standing order" and the relevant number. That is a fair point.
On paragraph 3.7, on page 14, I have been a member of the Conveners Group only briefly, but I wonder about the statement:
The situation has not yet arisen in practice, but the mechanism exists should it ever be needed.
So I have not missed it. Thank you.
On the footnote at the bottom of page 14, although the document provides entirely comprehensive guidance on areas with which we are all very familiar, it skirts over an issue such as the Conveners Group in only two sentences. I do not know very much about what the Conveners Group does; how often it meets; whether its recommendations are binding on committees or are advisory; and, if they are binding, whether they bind committees for ever or for a parliamentary session. I wonder why the document is short on such information.
The group used to operate on the dark fringes of the Parliament, but I believe that its status is more established now.
Its status appears to have risen with experience.
The original conveners liaison group was an informal grouping that was not covered by standing orders. However, that position has changed. It is not included in this document simply because the document was always intended to be guidance on the operation of subject and mandatory committees. The Conveners Group is not even a committee, let alone a subject or mandatory committee. There might be a case for producing a separate volume or perhaps a note on the Conveners Group.
There might be no need for a separate volume.
I think that it would probably be a note.
I note, for example, that paragraph 1.10 says:
Perhaps I could ask the group whether it would find such a note helpful.
Will the document be read primarily by committee staff?
The document is aimed primarily at members and committee staff.
So it would be quite helpful for members to have more of an understanding of the Conveners Group. Chris Ballance's point might be met if a bit more explanation were provided. After all, the fewer the causes for suspicion, the better. Such suspicions are usually unjustified, but they can have important effects.
Do members have any comments on page 15?
Paragraph 4.5 on page 15 says:
Some committees meet more than once a week.
Perhaps your point could be covered by changing the sentence to, "A committee meets as appropriate, but most frequently weekly or fortnightly."
Again, it is up to committees to decide their agenda and how they manage their business. For example, the Procedures Committee might decide to start at 9 am and go on to 1 pm to take care of two weeks' business. There is no standing order that stipulates that a committee should meet either weekly or fortnightly.
Perhaps it could be said that committees will decide what their work programme is but, historically, most committees have met weekly or fortnightly. That is helpful.
Footnote 13 on page 16 states:
The numbering in the footnote requires to be changed. The footnote is probably left over from an earlier draft in which there was a different numbering system for the paragraphs. I will correct that. Thank you.
Footnote 14 on page 16 refers to the paragraph on privilege on page 20. I thought that I knew exactly where we were with privilege in the Parliament—that is, we do not have it. However, having read the paper, I do not know. Paragraph 4.44 defines exactly what privilege is. It states:
However, the footnote on page 20 states:
Which parts of the paper are you referring to?
I mentioned footnote 14, which follows paragraph 4.15 on page 16 and paragraph 4.44 and footnote 19 on page 20, all of which relate to privilege. I do not know whether I understand things now.
Paragraph 4.44 states what privilege means in the Scottish Parliament. Statements that are made under the authority of the Parliament and in parliamentary proceedings, including committee proceedings, are privileged, which means that there is a defence if somebody tries to sue a person, including a member, for making such statements. However, I will discuss footnote 19 with our lawyers and ask whether the statement on privilege in the United Kingdom Parliament can be clarified and whether there can be better wording to distinguish between the two situations.
Yes. The footnote clearly states:
That will be clarified. We are now on page 20. Do members want to comment on anything else before page 20?
Page 19 mentions references to the convener. I always refer to the convener in any committee as "convener", but the paper says:
I am sorry, but which paragraph are you referring to?
I am referring to paragraph 4.40, which starts at the bottom of page 19 and continues on page 20.
The paragraph states that members normally use names in meetings. The statement is based on observation of meetings.
You may prove me wrong, but I do not think that members normally do so.
What are you talking about, Cathie?
I agree that we normally use a member's name when we talk to that member, but we normally address the convener as "convener". The paragraph deals with how the convener is addressed.
The beginning of paragraph 4.40 states:
Okay, sorry. I think that—
There is more than one member for North East Scotland.
That is true.
I just want us to make sure that everyone has their due place and recognition.
There is new wording in paragraph 4.45. I had a quibble about the original wording, but the new wording makes it clear that, because the marshalled list of amendments is different from the groupings, the order of voting is different from the order of debate. We do not always vote on an amendment immediately after it is moved; we vote on it when it comes up in the marshalled list. The new wording covers that point clearly, which is helpful.
I have a point on paragraph 4.49. Again, it just hair-splitting but, as it confused me or raised a question in my mind, we may as well deal with it now. It concerns the difference between a simple and an absolute majority. The guidance states:
The rules are clear. It means more than half of the number of seats on the committee, whether or not those seats are occupied. Elizabeth Watson might consider tweaking the wording slightly to put that beyond doubt, but that is certainly what the rules say.
The wording certainly raised a question in my mind and it would be good to make sure that it is not raised in anybody else's.
Yes, so it is just an addition to the wording
I have a comment on paragraph 4.65 on page 23. It seems to have become a practice for committees, when they prepare their annual reports, to be advised by the clerks that they have to keep them to two sides of A4, or maybe even to one side of A4. There is nothing in standing orders that dictates the length of committees' annual reports, but conveners and committees feel bound by the practice that has developed. This is an appropriate time to ask for clarification on how the practice has developed and why we have to constrain our comments to two sides of A4.
The practice developed because of an agreement by the Conveners Group to recommend that committees' annual reports should be limited to 750 words. As a result of consideration by the Procedures Committee, the Conveners Group is to consider that again. You are right: there is nothing in standing orders that requires that. Standing orders do not say anything about the form or content of annual reports except that they must contain information about the number of meetings that have been held, the business that has been taken and the number of meetings that have been held in private. Standing orders do not prescribe the style or form of annual reports, but the Conveners Group will consider that again.
The issue was raised as to whether we need annual reports at all, but we decided that we do. Will the Conveners Group produce advice or guidance on the matter in due course?
The matter is on the agenda for the next meeting of the Conveners Group.
Okay. I think that we got up to page 25 of the draft guidance.
The same errant paragraph numbering that we discussed before occurs in the footnote on page 24.
Apart from typos, which I have already passed on, I have run out of issues. Do members have any further queries?
I found section 6 interesting, particularly on negative and affirmative procedure. We should all read it before we discuss the Transport and Works (Scotland) Bill.
I have another query. It says in paragraph 5.52 on page 33:
I understand that it is based on legal advice. Under legislation, members of the Parliament have a unique status in relation to direct participation in proceedings. If a committee invites a witness to give evidence, their status is that of invited participant, but an adviser, like other members of staff, does not have the same status as a member when it comes to participating in proceedings. The guidance simply reflects that legal advice.
I ask because I have been on a committee with an adviser who clearly participated in the discussion and, I think, questioned witnesses.
Yes, it was Wolfgang Michalski.
It was not queried at the time, which is why I wondered whether it is a rule that advisers may not speak. If it is a rule, perhaps it ought to be highlighted as such because it never occurred to anyone on that committee to question the adviser's participation.
In fact, it was useful for the adviser to be able to ask questions in that informal inquiry situation. Committee members found it helpful.
It is similar to what happens when committees choose to have round-table discussions in which witnesses find themselves openly discussing issues across the table.
But such informal sessions are not usually recorded in the committee report, which confers a different status.
There is a clear distinction between the position of witnesses, who are there to provide information to the committee, albeit that in the round-table format there might be some interchange between the witnesses, and the position of the committee adviser, who is not there as a witness. Certainly, the legal advice that we had before the Parliament was created was that other than witnesses, only members can participate in committee proceedings, and that it would constitute participation if an adviser were to ask a question directly. The point is not made in the standing orders; it is a statutory point.
When the Scotland Bill was going through at Westminster, several of us pressed quite hard for committees to be allowed to co-opt people, but the strong Government line was that they should not be allowed to. When the rules were drawn up here, that debate at Westminster was reflected, but perhaps people were too cautious and it might be that we can now soften the rules a wee bit. If people are not leaping up and down saying that the procedure is all wrong, I presume that it is up to each committee to decide whether to allow its adviser a bit of latitude.
There are ways in which a committee that has an adviser can bring the expertise of the adviser to bear without necessarily having them question witnesses directly. The adviser can have input into questions that are asked and there are various other practical mechanisms. The guidance is not intended to stifle the effective use of advisers; it simply reflects the legal advice that we had about the status of members.
So the stuff in the draft guidance correctly reflects the legal advice and the status quo.
That is fair enough.
If we want to change it, we can.
The legal advice if not the status quo.
On page 44, the draft guidance correctly reflects the changed rules about legislative consent motions rather than how we dealt with such things in the past. For example, the Executive now has to explain why a law must be changed and why the legislative consent motion is the way to deal with it; the Executive did not always do that in the past. I hope that we can stick to what is stated in the guidance.
Where do we go from here? Do we just agree the document and get on with it, or do we have to see another copy?
Perhaps the couple of members who are not here might be allowed to pass on to Elizabeth Watson any minor tweaks that might occur to them. Basically, we have to agree the guidance. As I understand it, Karen Gillon has indicated her basic support for it, but she might wish to make one or two suggestions. As far as the committee is concerned, the guidance is agreed, but members may suggest minor tweaks if they wish.