The next agenda item is on whether the member who is in charge of a member's bill should be able to be a member of the committee that deals with the bill. The matter is summarised in heavy type at the bottom of page 3 of paper PR/S2/06/7/4. We have three options: to leave matters as they are; to amend the rules so that the member in charge of a bill cannot be a member of the lead committee; or to amend the rules to allow substitution. What do members feel?
My initial view was that we should prohibit the member's involvement in the committee but, having listened to and chatted with members, I now think that the member should simply not be able to participate as a committee member in the committee's work on the bill, or have sight of private committee papers that relate to the bill. By amending the rules on substitution so that a substitute committee member can take part in that work, and so that the private information for that work is not available to the member in charge of the bill—as is the case for all non-committee members who participate in any bill process—we would have equality across the board. That is the right way in which to proceed.
I am not sure what concern there is, other than the one that Karen Gillon has raised. Changing the substitution rules would make no difference to the member in charge having sight of the private papers and suggested lines of questioning, because substitution normally takes place fairly late in the day. Would the substitution be compulsory?
I am suggesting that, once the Parliamentary Bureau and the Parliament have decided that a member's bill is to be given to a committee, it should be clear from the outset that the member who is in charge of the bill cannot participate as a member of the committee in the consideration of the bill. They would be treated as Dennis Canavan is treated when the Enterprise and Culture Committee considers the St Andrew's Day Bank Holiday (Scotland) Bill. He presents evidence and can cross-examine witnesses, but he does not receive the private papers that the committee receives.
So your suggestion is more akin to option B in the paper, rather than option C.
I suppose that it is a mixture of the two, but the main point is about substitution.
Yes, the point is to allow a substitute to come in.
I will explain my reasoning. If I had a member's bill that came next week to the Enterprise and Culture Committee and I was excluded from the committee's work for the next eight weeks, that would mean that, although I sat through all the evidence on stage 1 of the Bankruptcy and Diligence etc (Scotland) Bill, another member would have to come in for stage 2, even though they did not hear the evidence. We should have a hybrid system.
I understand the logic, but I am trying to consider the extension, which is whether the substitution would be compulsory. That would change entirely how the system operates. With normal substitutions, the member of the committee still receives all the information, whereas, under Karen Gillon's suggestion, we would deny, or at least not give them access to, that information. I was trying to get to the bottom of that issue. If that is the only perceived problem, Karen Gillon's suggestion would eliminate it. In many ways, we could argue that the suggestion would be advantageous, particularly for smaller parties, because they would have a member advocating the bill and a member questioning in favour of the bill, too.
I support going along the lines that Karen Gillon suggests. However, the clerk has pointed out some effects of choosing option C. A more general issue about substitution arises. The clerk blames me for this, because the measure was agreed to by the Procedures Committee in the first parliamentary session but, for some reason, the smaller parties—which did not exist then, as there were singletons rather than small parties—do not have substitution rights. We would have to amend that rule, but I do not see why smaller parties should not have substitution rights.
I have a point of clarification on paragraph 19. At the moment, nobody is excluded from substitution, because the independents are a group.
That is not correct. They are a group and they have a representative on the Parliamentary Bureau, but the rule is specific that substitution is available only to political parties with five or more members. Therefore, the independents do not count for the substitution rules.
I am not sure that it is possible to have a substitute. If an independent member is on a committee as an individual, how can they have a substitute?
They cannot under the current rules.
But how can they have a substitute? I understand that, if a member is on a committee as part of a group that is represented on the Parliamentary Bureau, whether a political party or a grouping, it is possible to have a substitute from within the group, but how is it possible to have a substitute for an individual member? There is no other person to substitute for them.
They cannot have a substitute at the moment, as I understand it. A group does not count; only a political party can have a substitute.
I am saying that I can understand how we would amend the rules to allow for groups that are represented on the Parliamentary Bureau to have substitutes, but how can we create a rule that allows a member to be substituted when there is no alternative person to substitute for them?
The independents are a group that is recognised by the bureau.
I understand that and I can accept changing the rules to enable them to substitute, but what happens if, in the next parliamentary session, there is a group of independents and another independent, who is not part of the group and who is on a committee? How can that person have a substitute? Who would be the substitute for them?
This discussion presupposes that everybody who sits on a committee will vote along a party line.
No it does not.
I think that that is the implication. I understand where Karen Gillon is coming from. If the Labour group has three members on the committee and one cannot make it, they should have a substitute from the Labour group. The same applies to any other group. Karen Gillon is right to raise the matter, although I have come to a different conclusion. I am concerned that if an independent who is not a member of an independents group is the member in charge of a bill, we might remove their rights to vote and receive the committee papers, but nobody will replace them. I am genuinely concerned about that.
That is surely the situation for any member on any bill. If a Labour member brings a member's bill to a committee of which I am a member, I do not pass the private papers to that Labour member. That is against the Parliament's rules.
I am not arguing that.
You are. The members you are talking about are not being disadvantaged. We would be excluding somebody only while a committee considered their member's bill, not from everything else. We would therefore be treating them as we would treat any other member at any meeting of a committee of which they are not a member.
It would alter the balance.
Jean Turner is on the Health Committee because she was a general practitioner and everybody thought it was right to put her on the Health Committee. Who would substitute for Jean Turner and who would decide who her substitute would be?
She would.
Why would she decide? She was put on that committee by a decision of the Parliament, not because she wanted to be on it. Should the Parliament not decide on an individual's substitute?
Yes, as it does with Labour, Scottish National Party and Tory substitutes; we propose our substitutes and the Parliament approves them. The procedure would be exactly the same for independents. If the Parliament thought that a proposed substitution was not appropriate, it would not agree it.
That could cover it. If we change the rules to allow substitution for specific items, an item could be put on the Parliament's agenda to agree that, for the purposes of a certain rule, the substitute for X could be Y. If the Parliament did not like it, it could vote it down. That is a possibility.
We must make clear that a substitution would be allowed only when a committee was discussing specific items in a member's bill. We must tie that in clearly to the current rules, otherwise members would try to use substitutes for many reasons. There has been controversy in the Parliament over the past few weeks about the way in which substitutes have been used, so we must be clear.
That is a useful point. We would have to produce a new rule that specified that a substitution would be allowed only for discussion of a specific item. We would need a rule for agreeing the substitution.
The only change we would need to make to the rules for substitution would be that a substitute would have to be a member of a political party or a group that was recognised by the Parliamentary Bureau. I do not know how we would deal with an independent MSP who was not a member of an independents group. A member may choose to resign from a committee or to take their member's bill through. There should be options, but I do not think that we can write rules to suit independent MSPs who are not members of an independents group—the majority of members represent political parties.
Are we suggesting that an independent member in that position should have a free hand to appoint as their substitute whichever member of Parliament they like? If so, how strictly can we regulate who they choose to appoint?
I do not think that we should allow that.
My view, for what it is worth, is that if we amend the rules for substitution to include parties that are represented on the Parliamentary Bureau, the independents group could nominate a substitute for an independent member. For example, the independents group could nominate a substitute for Dennis Canavan on the European and External Relations Committee. I do not think that we are in a position to allow individual substitutions, but we might disagree on that. A member would not need to resign from a committee to take a member's bill through; they just could not vote on parts of the bill that pertained to them. They could still attend committee meetings, except for meetings in private in which the committee took a view on the bill.
I think we are on dangerous ground when we start to say that there is one set of rules in the Parliament for folk who are members of political parties and another set for those who are independent members.
But there are.
There are and I think that that is wrong—and there is a huge difference between present practice and what we propose. The present practice for substitution is for when an MSP is unable, for whatever reason, to make a particular committee meeting. We are talking about removing the right of a committee member who is in charge of a bill to sit in deliberation on the bill. When we remove somebody's right to do something, we must have a counterbalance. In this case, it must be right to have a substitute. None of our political parties can say, for example, that Karen Gillon can substitute for Cathie Craigie—the Parliament must decide that. I suggest that the same rule should apply to everybody.
Andrew Mylne wants to say something.
I just want to clarify a point for members. Karen Gillon's point was that it would be relatively easy to change the rules so that the substitution option was available to an independents group that had formed to gain a representative in the Parliamentary Bureau. That would cover the independents group as it is currently constituted. There might be particular issues about an independent MSP who was not a member of a group. I am not sure what the committee's view is, but I think that the gap would be for a party that had three or four MSPs. If it was the only small party in the Parliament, it could form a group and it would in principle have enough members to allow substitution. Under the current rules, it would not have that right, so the question is whether members want to cover such a situation as well.
I would have thought that, if the Parliament has to approve the substitution, that would cover it. Normally, the party would already have a nominated substitute for the committee who has been approved by the Parliament. On an ad hoc basis, a smaller party or the independents could propose to the Parliament that they wanted the substitute to be so-and-so and the Parliament would approve that, which would give them their chance. It would be the same for an independent independent, who could nominate somebody who he or she felt was friendly to the idea of the bill.
Surely, convener, that is not the point of the committee. What you say illustrates exactly my primary concern about an independent member being able to nominate somebody else to a committee to consider their member's bill: they would nominate somebody who was supportive of their position and the Parliament would have no right to change that nomination.
Oh!
Bruce, the convener has made the point that if an independent member was taking a member's bill through the Parliament, they would have the right to put somebody on the committee who supported their bill. As a Labour member, I do not know, nine times out of 10, how other Labour members will vote on a member's bill. If I introduced a corporate killing bill now, I would not know whether the three Labour members of the Justice 1 Committee would support my position. Some of them would and some of them would not, but they would examine and assess the evidence that was presented to them. If an independent member was able to propose a substitute whom they believed to be sympathetic to their member's bill, we would have given them an unfair advantage.
Do you mean in a committee?
Yes.
In that case, we are in danger of creating a quagmire in which, as long as the member in charge of a member's bill is a member of a political party with more than five members, they will be allowed to have a substitute for that agenda item but, if they are not, they will not. There is an argument to be had about whether the present rules are right and we can have that argument at a different time, but it would be fundamentally wrong to do what Karen Gillon proposes. If we want equality on the matter, we would have to keep the status quo or say that the member in charge cannot serve on the committee that is considering their bill. There is a fundamental problem with having particular rules that could easily affect the outcome of stage 1 consideration and are to be applied differently to some members, groupings or non-groupings.
I will suggest a compromise. I do not have the right to nominate somebody to replace me on a committee.
That is correct. Neither should an independent.
But you are suggesting that they should.
No, I am suggesting that the Parliament should.
There is potential for compromise in that the Parliamentary Bureau could nominate a substitute whose appointment would not affect the d'Hondt balance in the committee.
Yes, I am absolutely happy with that. In effect, that is what happens—although the Parliamentary Bureau clearly listens to the views of the parties that are represented on it—and then a motion is lodged.
It is not what happens—for instance, I cannot substitute for an SNP member—but, in the peculiar circumstances in which a member does not belong to a party that is represented on the Parliamentary Bureau, the bureau could nominate somebody as long as their appointment did not disturb the d'Hondt balance of the committee. If it was an Opposition independent, they would be replaced by an Opposition member and if they were a Government independent, who was making up part of a wonderful new rainbow coalition, they would be replaced by a member of a Government party. I do not know whether it is possible to do that within the rules.
We need to think the matter through. The committee discussed the amount of parliamentary time that is taken up by consideration of private bills and the difficulties for members of private bill committees who serve on other parliamentary committees in giving their committee work the time that it requires. If the main parties in the Parliament are asked to substitute a member, there will be a strain on everyone's time.
We seem to be heading towards a proposition that I can support. We are suggesting that it is wrong for a committee member to introduce a bill for which their committee will be the lead committee. Therefore, a member who introduces such a bill should not be allowed to take part in the committee's consideration and standing orders could be changed to allow a substitute to take part in agenda items that relate to the bill. The substitute would be proposed by the Parliamentary Bureau and approved by the Parliament in the usual way, which would enable members to object if they thought that a proposed substitute was a bad choice. I assume that the bureau would propose a member of the same party as the member in charge of the bill—the substitute would have to have the time to give the matter the proper attention—or, if the member in charge of the bill was an independent, seek advice and propose a member who was neither wildly for nor wildly against the bill, but would give it a fair hearing.
I endorse that approach, which seems to address everyone's concerns. The use of a substitute would not affect d'Hondt and would be unlikely to put additional pressures on political parties or independent members, which might address Cathy Craigie's concerns. The approach represents a sensible compromise. I am sure that it is not beyond our wit to change the rules to address concerns about current practice.
Can the clerks draw up a proposal along the lines that I suggested?
We can work on that.
I thank everyone for their contribution. We worked our way towards a sensible proposition.
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