Committee Meetings (Evidence Taking)
Good morning, everybody. Welcome to the 10th meeting in 2002 of the Procedures Committee. We have an apology for absence from Susan Deacon and an apology for lateness from Paul Martin, who is stuck in traffic somewhere.
We have four items on our agenda this morning. The first concerns evidence in formal committee meetings, on which the committee has correspondence in front of it. We are joined this morning by Elizabeth Watson, whom I invite to summarise, succinctly but comprehensively, the position that the conveners liaison group is urging us to take.
Elizabeth Watson (Scottish Parliament Directorate of Clerking and Reporting):
This matter arose at the conveners liaison group. The Presiding Officer asked the conveners to consider it after the Rural Development Committee had asked him about the provisions in the standing orders for taking evidence. The Rural Development Committee was having a meeting outside Edinburgh and wanted to incorporate what was effectively a panel session with the audience. The committee wanted to know whether it could do that as part of the formal proceedings or whether it would have to form part of the civic participation event, outside the formal meeting structure.
The advice that the Presiding Officer gave was that the standing orders allowed the committee to do that as part of the formal meeting structure, but that procedural difficulties and practical problems might arise from it. In the event, the committee did not hold the panel session as part of the formal meeting; they held it as an informal fact-finding exercise. Although the official report reported it extensively, it was not published as an Official Report—the meeting would have to be formal for an Official Report—but a verbatim report was kept.
When the conveners liaison group considered the matter, they shared the Presiding Officer's concerns, which are set out in George Reid's letter and fall into two main groups. First the conveners liaison group saw issues around keeping order in the meeting and achieving balance in the contributions. The conveners felt that it was important to know the background of the people giving evidence.
The other group of concerns focused on issues of transparency and making information available to people who were following committee proceedings. The latter was referred to by Kate Maclean in particular, who felt that there were benefits to be derived from having witnesses listed on the agenda so that people who were following the proceedings would know who was coming to the committee meetings and could decide whether they wanted to attend.
Because of those two groups of concerns, it was the unanimous view of the nine conveners who were present at the meeting that the standing orders should make it clear that witnesses should be invited to attend. Everyone agreed that the informal sessions had a place and provided useful information for the committees, but that they should not be formal evidence-taking sessions. That view was reached having regard to the fact that a range of options are available to committees concerning the recording of the meetings. A committee can have an official reporter attend an informal session to produce either a summary of it or a verbatim report. Alternatively, the clerks can minute it. The record can be tailored as appropriate to the occasion, so the conveners did not feel that there would be any loss of information as a result of not taking such evidence as part of the formal proceedings.
That sums up the discussion at the meeting.
Thank you. I was not present at that meeting. In discussing the issues, did the conveners mention the possibility that what they are looking for could be covered in committee guidance? From attending a meeting recently, I know that the conveners liaison group is reviewing committee guidance. I have no difficulty with the thrust of what the group has asked for, although I have reservations about the final paragraph of George Reid's letter. I would have thought that, by and large, the matter would be in conveners' own hands.
No, they did not discuss that.
Let us consider the final paragraph of George Reid's letter. I have summarised what I thought was good practice in holding an open forum, touching on changing the standing orders. George Reid advises that
"individuals or organisations invited to give evidence at committee meetings should be clearly identified in advance".
I understand the reason for that, and it is good practice, but how do we cope with the not infrequent circumstance at a committee meeting when we are confronted not by the person who is named on the agenda, but by someone who has substituted for them at the convenience of the organisation? I am worried that, if we changed standing orders to enshrine—perhaps entomb—good practice, we might reduce our flexibility or the flexibility of organisations that give evidence to us.
That is at the heart of Kate Maclean's concern about people knowing who will attend. At least the name of the organisation should be given in advance; the name of the individual witness is not so important. It is important to identify the organisation that is attending, which may be a legal person.
Donald, you had a point about this when we discussed the matter briefly at our previous meeting.
Yes. I was going to make the point that you have just made about substitution. I agree that the names of the people who are invited to speak should be on the agenda, so that the public can decide whether they want to listen to them.
My concern is about contributions from the public gallery. For example, a committee might be discussing whether a specific bridge is safe. The bridge might be unknown to committee members and they may not know who built it, but the guy who built it could be in the public gallery. To refuse to allow him to say, "It is not safe because of A, B and C", is pretty perverse. That sort of thing might happen only rarely, but relevant contributions could be made from the public gallery. On the other hand, if there is a heavy lobby against some activity such as fox hunting, we do not want the public to take over the meeting.
I would not go to the stake over that issue. However, following the thrust of your suggestion, we could make meetings as informal as possible under the rules that are laid down. If all committee members agreed that it would be helpful to take five minutes' evidence from Mr X in the public gallery, that should be allowed.
At the previous meeting Paul Martin, who has not yet arrived, emphasised the fact that not everyone can attend committee meetings. Paul gave the example of a group from his constituency that complained about the high cost of public transport. That group would be at a disadvantage because it would not be able to come to Edinburgh to make its point, whereas representatives of the transport companies would. People who are able to come to meetings should not have an unfair advantage over the rest of the community. Did the conveners raise that issue?
They did not, but committees can agree to meet witnesses' expenses—there is a witnesses' expenses scheme. Someone who wanted to come to Edinburgh to give evidence would not have to be disadvantaged in the way in which the member describes.
Some committees have sent reporters out into communities to take evidence. The fact that evidence is not taken formally does not mean that it cannot be reported back to the committee. Reports of some of the open forums that have taken place have been annexed to committee reports. A record of the evidence is available and the committee can have regard to it.
I agree with the convener that this matter should be dealt with in guidance rather than in standing orders. I do not see the point of entombing it in standing orders.
I do not know how to solve this problem. I would be worried if a so-called expert in the public gallery were able to participate in a meeting on the basis that they were an expert, whereas other members of the public were not. At formal evidence-taking sessions such an approach could prove disruptive.
We must find a mechanism for doing two things. First, we must ensure that the process is clear and that everyone understands it. Secondly, the public must have the ability to make an input. In my view, the only way of proceeding is to name in advance those who will give evidence. Perhaps we should name organisations rather than people. That would allow someone who was ill to be replaced by a substitute. People could also give evidence as representatives of the public.
I am very sympathetic to the approach that Donald Gorrie would like to take. Reports could be produced on evidence that has been taken informally. The power to conduct meetings should always be with the convener, to ensure that meetings start and finish properly.
That is my view. I do not like the idea of conveners never being able to take an additional agenda item simply because it was not published on the website. The convener of the Transport and the Environment Committee might want briefly to mention something striking that had happened in transport, in order to commission work or to arrange for evidence to be taken on that.
Conveners would also like to have the flexibility to take evidence that had not been scripted in advance. I recall inviting Andrew McNaughton, who is in the public gallery today, to come to the table to advise the committee on an issue that he knew about and which was relevant to the discussion that we were having that day, even though he was not scripted to speak. I do not know whether he found that advantageous, but the committee and I did.
It is important that the committee and the convener should have some flexibility. However, I share the central concern of the conveners liaison group that committees should be able to control the evidence that they receive. Large public forums are best accommodated as part of informal proceedings. It may be that, to some degree, the uncertainty that arose in the instance that the Rural Development Committee raised stemmed from a lack of awareness of what the official report could provide. It may be that the attempt to get evidence on the record led to the committee sensing that it wanted to add details of members of the public to the committee agenda.
We should give clear advice to the conveners that we understand the difficulty, support them in their attempts to achieve best practice and urge on them a revision of their own guidance so that a clear lead can be given in circumstances that may arise in future. I propose that we agree not to take action on the conveners liaison group's recommendations on changes to the standing orders. However, if the difficulties are such that they can be resolved only by a change to the standing orders, we are open to suggestions.
The issue has to be one of fairness and accessibility. We should take on board the points that have been made by the conveners liaison group. It has sought our advice and made clear to us its strong views on the matter. Crucial to the success of any inquiry are the people from whom committees take evidence. That process has to be fair, as it requires a distribution of views. Flexibility is also required. It might be possible for a member to send a note to the convener during an evidence-taking session, drawing attention to an expert in the public gallery. A request to speak could be articulated through the convener, but conveners need flexibility on that matter.
The crux of the matter is whether changes should be made to the standing orders. I would like to ask for advice from the clerks and from Elizabeth Watson on that. In the last paragraph of his letter to the committee, George Reid wrote:
"individuals or organisations … should be clearly identified".
The understanding that I have gained in almost three years of drafting is that there is a difference between "should" and "must". If the word "must" were to be used, that would preclude people who were not listed on the agenda from speaking at committee. However, if the word "should" were to be used, there is a clear inference that people should be listed on the agenda if they are to speak at committee, but that, on the odd occasion when a person was not listed, they would not be precluded from being called to speak.
If the conveners liaison group seeks a change to the standing orders and it also seeks flexibility, we could change the standing orders but use the word "should" rather than the word "must". In order for conveners to share best practice, we should advise the conveners liaison group that, if a convener is taking evidence from someone who is not named on the committee agenda, they should report to the CLG their experience and the reasons for doing so. Those suggestions would suit the needs of conveners and meet the request that has been made by the CLG. We need to take into account the fact that the CLG has asked us to change the standing orders.
The difficulty with that suggestion is that "should" is likely to become "must". Even if we used the words "should normally" or "in normal circumstances", the words would not be precise enough for use in the standing orders. Conveners have to be able to say that the situation is possible or that it is not. Thereafter, once a convener has said that something is possible, they go to guidance to define the circumstances under which the occurrence is regular, normal or expected. If conveners were challenged on the standing orders, they would have the flexibility to say that the standing orders provide for that occurrence or that they do not do so.
Conveners also need to have guidance, which has been clearly framed and refined in the light of experience over a long period of time. Clear guidance sets out best practice not only for the committee and the convener, but for people who wish to give evidence. To do so would be in the interests of accessibility and balance. I would be happy to strengthen the response that we give to the conveners to incorporate the points that Fiona Hyslop made.
Fiona Hyslop asked for advice from the clerks and from Elizabeth Watson, but I jumped in front.
I do not think that I could add anything to what the convener said.
We will also send a copy of the Official Report of this meeting to the conveners liaison group. That report will give the conveners a clear indication that we accept absolutely their concerns and that we invite the CLG and officials to consider the guidance to conveners. If, at the end of that process, the CLG is not happy with the guidance, we can revisit the arguments.
I agree.
I thank members and Elizabeth Watson.