We move on to the paper on motions and decisions. The clerk's intention was to highlight matters that need to be tidied up, but they are not big issues and we should not get too involved in them.
Did members raise that issue? Why are we considering the paper? I have asked the question before now, but the answer was not clear to me.
The proposal comes from the clerks, who have felt that the current rules are a little out of step with the practice that has developed. As the convener has pointed out, it is a relatively low-key tidying up exercise.
I notice that points of order about pre-emption have been made in the chamber just before decision time. Even if the proposal results only in a restatement and clarification of current procedures, that would be valuable.
I suggest that we go through this second paper—perhaps it is the third—that the clerks have produced on the matter. If we can reach agreement, that is fine; however, before any points cause huge hassle, we should bear in mind that they are not worth fighting world war three over.
I feel some responsibility for this, because I raised the concern that is referred to throughout the paper. The danger is that, in creating another set of rules to clarify the position, we might simply obscure matters. I understand the desire for clarity, because there is a difference between a strict interpretation of standing orders and current practice. However, custom and practice play their part in any system; after all, they are probably how most members understand standing orders. As I have said, I am concerned that in trying to clarify matters we will fail to do so. I am reminded of the old saying, "If it ain't broke, don't fix it".
I am sure that members agree with the general philosophy.
The previous paper suggested an outline form of words that is aimed at providing the flexibility that we have at the moment by leaving it to the bureau to decide how often the exercise would be conducted. At the moment, it takes place roughly every six weeks.
The purge takes place only every six weeks, which means that some motions could be 11 weeks old.
That is right.
Does everyone agree that the present system works okay, but that it would be worth setting it out in standing orders?
No. I come back to my original point. We have all had motions scratched. Certainly, in my party group, the whips ask MSPs, "This motion's getting old. Is there any reason why you want to keep it on the agenda? If not, the bureau will likely take it off the list the next time it meets." Such an approach is perfectly acceptable. However, a strict rule to stipulate that all motions must come off the list after six weeks—except in particular circumstances, which is essentially the current position—would impact on motions that, for example, have been lodged for a members' business debate, perhaps by the smaller parties that do not often get a bite at securing such debates.
I am concerned about what would happen to independent parties or parties that have only one member in Parliament.
Indeed. There is no point in having a rule unless it is implemented, but a rule that stipulated that all motions be struck off the list after six weeks would disadvantage independents, parties with only one member and the smaller parties. If that is not the essence of the rule change, I suggest that we leave things as they are.
The previous paper suggested that a motion would be kept on the list if it were up for a member's business debate or if there were other reasons to keep it on. We are not advocating a Stalinist purge of all motions.
Shame.
It would be reasonable to have a standing order that set out what happens at the moment. As things stand, somebody could change the policy because there is no official policy.
But we could change the standing orders.
That would have to go through the Parliament so, with respect, that is a non-argument.
With respect, it is not a non-argument. As a Parliament, we can change the standing orders when we wish.
But common sense is neither universal nor permanent. If the system is informal it can be changed and individuals and smaller parties will not have the protection that standing orders can offer. The proposals in paper PR/S2/06/6/2 suggest a way of avoiding motions being struck off when they should not be. At the moment they could be.
Is the reverse not true? At the moment, the motion stays in the Business Bulletin unless it is struck off. We could be introducing a system to strike off motions after a certain time; but the present system is silent about striking off motions.
At the moment, motions do not stay in the Business Bulletin permanently. They disappear. Why do they disappear? How do they disappear? Who controls that? We are suggesting that there should be a system. I would have thought that that was more sensible.
I do not have a problem with that, but I am concerned about enshrining a system that nobody has been consulted on. Nobody knows why the Parliamentary Bureau decided to have a six-week cut-off point. Nobody was involved in dialogue on that. We are considering taking a Parliamentary Bureau process and enshrining it in standing orders, having consulted nobody. We are trying to protect the rights of back-bench MSPs, but we might be enshrining a policy that was created by party business managers without any consultation with back-bench MSPs.
Do you suggest dropping the whole thing, or writing to all members on this and any other issues that we discuss?
This is why I asked where this proposal has come from, convener. I want to know whether there is demand from members, from business managers, or from somebody else. I want to know why there is a need for the proposal. I have no problem with the proposal, or with asking people whether they think that we should enshrine it in standing orders. That would not be a huge exercise. However, I would be nervous about including in standing orders a measure to protect back-bench MSPs when they had not even been consulted.
That is fair enough.
I do not object to the process that we are going through here, but, like Karen Gillon, I am slightly concerned about how we arrived at this point. I was a member of the Parliamentary Bureau from 2001 to 2003. During that time, this process began to evolve. It was simple: business managers were asked for permission to remove out-of-date motions. What I did—and what I believe other business managers did at the time—was to contact party members at a group meeting or by some other means and ask for permission to remove all out-of-date motions. I made a particular point of asking individuals who wanted their motions to be retained to pass that information to the business manager, who would then request that the motions be retained. There is a slight danger that what we have before us has the same effect but is, in fact, the reverse of the procedure that we are proposing.
Yes. I do not think that anyone in recorded history has ever asked me to remove my motions, yet they disappear with monotonous regularity.
I do not know how things are done in the Liberal Democrat group.
It is common practice in the SNP group for the whips to speak to the individual members.
Interesting.
I will take that up elsewhere.
I think that we should air it in an e-mail to members, setting out the issues and the proposals. It is then up to them to get back to us or not, but they cannot say that they have not been asked.
The point that was expressed more eloquently by Alex Johnstone than by me could be included in the e-mail. The emphasis would change from a system that seeks permission—informally or otherwise—to remove a motion to one that would seek to remove a motion. That is an important change in emphasis.
Perhaps I can clarify the matter. The previous paper suggested a rule that would give the Parliamentary Bureau the power to remove motions from the list if they were more than six weeks old. That would be an option for the bureau; it would not be mandatory. It was never proposed that there would be an automatic cull of motions after any period. The change would simply give the bureau the power to do what it does in practice anyway.
I take your point, but I do not think that the bureau acts like that in practice just now. The bureau removes motions—in the SNP group anyway—by consent. That is the difference. We would move from a system in which a motion is removed by consent to one in which another body is given the power to remove a motion. That is a fundamental change and it would come about through our enshrining in the standing orders a process that Karen Gillon says has evolved through the bureau. We must ask members about it and point out to them the change in emphasis that such a move would involve.
Six weeks is a bit of a short timescale, but it might be reasonable to suggest that, after eight or 10 weeks, a motion should be automatically removed from the list and would require to be resubmitted. I do not think that there is anything wrong with that, but we have to ask members whether that is reasonable.
We will try to ensure that both sides of the argument are put.
You could circulate a copy of the Official Report of this meeting.
We do not want to punish anybody. That would really reduce the response rate.
If Andrew Mylne's paper does not fully encapsulate the debate, members can read the Official Report. If Andrew puts a link to the Official Report in the e-mail, members will be able to get a cure for insomnia at the flick of a switch.
The next section of the paper is on the pre-emption of amendments. The clerk has tried hard to explain some very subtle points. I think that there should be something to say that the Presiding Officer has the right to exercise his judgment. The point about the inconsistency of amendments could be misinterpreted—that was a fair point that was made the last time that we discussed the issue. We do not want too prescriptive a rule, but it may be helpful to have a rule that makes it clear that the Presiding Officer exercises his judgment on what constitutes a pre-emption.
Is not the current system that the Presiding Officer interprets the standing orders? Is that not the essence of the chairing of any meeting, according to standing orders?
I do not know what goes through the Presiding Officer's mind on these occasions.
The paper gives a slightly misleading example of pre-emption—to do with post boxes—although my understanding of pre-emption may not be correct. I understand that an amendment is pre-empted if the tag to which it is attached is amended out of the motion—an amendment cannot amend something that is not there. We could debate whether post boxes should be red, blue, green or flipping multi-coloured, as those questions are not mutually exclusive.
Is pre-emption not a matter of competence? If members are debating a motion about a pillar box—I used the example the last time that we discussed the matter; I do not know whether it is a good one—and the reference to the pillar box has been removed, are the amendments not incompetent, rather than pre-empted? What they aim to change has disappeared. I think that we are in danger of confusing pre-emption with competence.
You are splitting hairs now.
It is all about splitting hairs, which is why I would just throw it all out. That was my view the first time that we discussed it. We are trying to tie something down that we will, on occasion, not be able to tie down. There will always have to be an exercise of judgment by the Presiding Officer—we will have to live with that.
Business managers, in particular, should be aware of the nature of pre-emption and how it is interpreted. They should ensure that amendments that are lodged in the names of their parties in normal debates take into account the risk of pre-emption. It is possible to position an amendment in such a way as to avoid pre-emption if the issues that would lead to that are understood.
It would begin, "Delete all after the first line."
Or, "Add at end."
My understanding—although I could be wrong—is that if it was left to the discretion of the Presiding Officer and the Presiding Officer made a ruling on pre-emption that dissatisfied two thirds of the Parliament, members could move a motion of no confidence in that decision.
And pigs might fly.
I think that a point of order might be made, along with a request for the Presiding Officer to rethink his decision. Given that, as standing orders read, he has no rights on pre-emption, such a point of order might well be successful.
It seems unsatisfactory that, if there is a motion with several amendments and a member's party's amendment is third or fourth on the list, they are instructed to vote against everyone else's amendments because, otherwise, they will not get a chance to vote on their amendment. In a multiparty Parliament, all the amendments are defeated and we end up with nothing at all, although members might feel some sympathy for other parties' amendments. It should be possible to find a more civilised way of dealing with such matters.
I agree entirely with that point, convener. The problem is that, although the point that you make is legitimate, your conclusion that the situation can be cured by writing pre-emption into the standing orders is going in entirely the wrong direction. What should be argued for is interpretation of the standing orders in the purity in which they exist just now, which would mean absolutely no pre-emption whatsoever.
But not having a pre-emption rule would not help that situation. If every party has an amendment on the order paper—we have been in that situation during debates on the war, for example—then every party can vote for what it wants. It depends on whether the party thinks that its amendment is the best. If the amendment has not been pre-empted, it can be voted on. It is the order in which the amendments come that might cause difficulty, but I assume that the order of the amendments is decided in relation to the size of the parties.
Yes, largely.
So a pre-emption rule would not help you at the moment.
There is, as Alex Johnstone said, a subtle dance between the various business managers to try to get their party's amendment higher up the list because it proposes "to delete all from the first ‘the'"—or whatever the wording of such amendments is—so that one party's amendment is dealt with before the others'. The wording of the amendment can be crucial to the order in which the amendments are taken.
The order in which amendments are taken could be the key. Perhaps the Presiding Officer needs to take amendments in an order that avoids pre-emption.
And you think that I am going to give that up.
I offer a few points of clarification. If we have a system that allows a motion and several amendments to it, it will always be the case that there will sometimes be a number of amendments, each of which is individually competent, that carry the possibility of pre-emption one by the other. That is true no matter which order the amendments are taken in—whether it is decided by the order in which they relate to the wording of the motion, the order of party size or any other order.
I accept what Andrew Mylne says and I accept the intention behind the proposal to introduce the rule. However, "pre-emption" is a name that we are inventing for this situation—or that has been invented for us. When the Presiding Officer decides on amendments, he determines whether a further amendment to the motion is still competent. If I am arguing in favour of painting pillar boxes red, but the words "pillar boxes" have been replaced by the word "elephants", then the motion has been changed to such an extent that the amendment is no longer relevant. In other words, it is not just that the amendment has been pre-empted, it has been pre-empted because it is not competent.
I would be happy to see a form of words for the proposed new rule because it is difficult to speak in the abstract. We can then work out whether the proposed rule would help or hinder us.
I wonder whether the wording would change what currently happens; I suspect that it would not. If we change what happens, we had better have a damn good reason for doing so.
The proposal is now different to what we previously discussed: we now want to consider a form of words that might become a new rule in the standing orders. Then we will discuss the matter again.
My intention was that, subject to members' views, the next stage in this minor inquiry would be to draft changes to the standing orders on the basis of what was previously considered in principle. It would then be up to the committee to consider the precise details of what is put before it and take a final decision on whether it wishes to proceed with the change.
I move that we reject the change now. That will save the clerk from having to spend any more time on it. If the change would have no effect, I do not see the point of it. I suggest that we save everybody's time and effort by rejecting it.
Right. Well, that has been moved. Do members support Bruce McFee's suggestion that we should drop the proposed change to the rules on the pre-emption of amendments?
I am neither for nor against. Do I have to be against to get a form of words?
Yes.
For
The result of the division is: For 2, Against 4, Abstentions 0.
I suggest that the form of words should be included when we consult members. We should include everything in one consultation.
Yes. We should not pursue the consultation on the first item until we—
Until we have got all the other stuff sorted out.
I am happy to agree to that, given that the committee has made its decision. However, I think that we should tell members the rationale behind the wording—
We will. That has been agreed.
—and what it would change.
Right.
I find it amazing that these little conventions spring up without consultation with anybody. Somebody in the Parliament says, "Oh, we'll just do that." We are the Procedures Committee and we should determine the Parliament's procedures, but people just make wee decisions here and there without consulting anybody.
It is called practical life.
But is it practical life if—
The day-to-day management of the Parliament requires decisions to be made. Sometimes those decisions are minor and insignificant, but sometimes they are more significant and they lead to practices that are on the borderline of the Parliament's official procedures. The paper assesses several such matters and asks whether the decisions should be formalised.
I do not think that such decisions have to be made overnight. At the least, I would like a courtesy letter to come to the Procedures Committee before decisions are made. The letter would say, "This is what we are going to do," even if it was just for information.
I think that we are being unduly critical of the chamber desk. Of its own volition, it has adopted a system that shows courtesy to other members who have supported a motion or amendment. If it did not do that, it might be criticised for not showing that courtesy.
We are not talking about that specific example.
Well, I am, because that is the subject that we are on.
In my experience, chamber desk staff sometimes make such decisions at very short notice with people such as me standing beside them shouting and waving bits of paper.
So it is your fault.
That is fair enough, but you are going down a very dangerous road. We have three examples of decisions that have been made without consultation with members of the Parliament. There are other things happening in the building. There are people moaning about how the building is run and it is going on and on and on.
I understand what Karen Gillon is saying, but I take an entirely different view. We have three issues before us. The first is the issue of pre-emption, which in my view is a matter of competence. Decisions on that are left to the discretion of the Presiding Officer, so no changes to the standing orders would be required. The second issue is about—
The Parliamentary Bureau.
Yes. It is about the removal of motions with the consent of members, albeit not those in all groups. Again, no changes to the standing orders would be required.
I will refrain from commenting on that.
The original suggestion was that the facility for the member to withdraw the motion or amendment might be put in the standing orders, but there was no suggestion that notification by e-mail would be part of that; that is just a suggested matter of practice.
What change are you suggesting? Where is the form of words?
There is no form of words as yet. That would be the next stage of the process. The suggestion was that there would be something in the standing orders to give authority to the withdrawal of a motion or amendment by the member who lodged it.
Surely we cannot stop a member withdrawing a motion. Members have the right to do whatever they like.
Yes, but those who supported the motion would then have the right to lodge another one.
But nobody is stopping members doing that. If I withdrew a motion, there would be nothing to stop you lodging a similar one the next day. Nothing in the standing orders would stop you doing that.
I am thinking particularly of amendments at stage 2 or stage 3—
But anyone can move an amendment at stage 2 or stage 3.
No. Members have to be a supporter of an amendment to move it. That is why you will find members rushing around signing other people's amendments in advance of a stage 2 or stage 3 debate to ensure that they have the right to move it, should the original—
But we are not talking about bills.
This has absolutely nothing to do with bills.
This is about the mad motion on the price of cheese in—
It is not mad. I am lodging it next week.
If Karen withdraws a motion and I want to take it up, I am perfectly at liberty to do so.
We are talking not about bills but about members' motions.
Right, but there is a question about the status of the people who have signed up to a motion. Is the motion the possession of the person who lodged it or the collective possession of all the people who signed it? We are trying to clarify that, although it is the possession of the member who lodged it, everyone else who signed it has rights and so should be told about its withdrawal. That way, they would not be left in the lurch and could go and do something about it if they wanted to. The proposal in paragraph 22 covers that.
I agree. I endorse the practice described in paragraph 22. I do not know whether we need to include a formal form of words in standing orders, but it would be good if the committee could endorse the current practice.
I would oppose a system that removed an individual's right to withdraw a motion or an amendment, but that is not suggested. An individual must always have that right.
Supporters have rights; the question is how they are made clear.
I say with respect that supporters do not have rights. They will be notified, but that gives them no right to retain a motion on an agenda under the name of the individual who lodged it. A supporter has the right to lodge any motion at any time.
A supporter will have the right to be notified so that they can do that, whereas at the moment, the thing might slip through without their being aware of it.
A supporter receives an e-mail and the information is in the Business Bulletin.
I proposed that that system should continue.
It is proposed that it should be formalised in standing orders, but what is missing is not a provision in standing orders but something else. How would a new member know about the system? Members might not be aware of some practices that go on. Whether all the information should be in standing orders is another issue—I do not necessarily think that the provision should be there. An information gap exists between standing orders and custom and practice. People who are not involved day to day will not know what happens. Nobody has sent me a note that says what procedure is now being followed—or perhaps it has been sent and I have not seen it. I am not aware of such a note, which is why I think that, if such conventions are followed, the committee at least should be informed of how they will operate, so that that is in the Official Report and everybody knows about it. That would be a courtesy to members.
It might help to mention the volumes of guidance that the clerks who deal with the various procedures have prepared and which are designed to flesh out standing orders and to describe the convention and practice that have built up around them. There is guidance on motions.
Is the practice that we are discussing in that guidance?
A new edition of the guidance on motions is in preparation and will be brought to the committee for approval once this minor inquiry is completed.
On that basis, I propose that we suggest to the people who are producing the guidance that it would be far more practical to include the information in that than to make it formal in standing orders.
The point about notifying members by e-mail is exactly the sort of information that will be added to the guidance but which is not appropriate for standing orders.
Do we agree to forward that suggestion to whoever is drawing up that wonderful document? We can ask them to include a paragraph on the matter. All the work that has been done can be passed on. Forgive me if I am wrong, but I am not convinced that the information needs to go in standing orders.
It is a matter of good practice.
Yes. Nothing can be put in standing orders that prevents a member from withdrawing a motion; if that happened, every member would be up in arms.
Nobody is suggesting such an addition.
The suggestion that the good practice should be noted and incorporated in the guidance is good. I hope that members will read the document, but they do not read standing orders, either.
I read them every night.
Do you have problems sleeping?
The proposal is that we convey the suggestion that the reasonable system that paragraph 22 describes should be written into the guidance. Is that agreed?
Members indicated agreement.
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