Procedures Committee,

Meeting date: Tuesday, May 29, 2001

Official Report 286KB pdf

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Convener's Casting Vote

Welcome to the fifth meeting of the Procedures Committee in 2001. We are slightly behind time, but everyone whom we have been expecting is now here. An apology for lateness has been received from Frank McAveety, who has missed his train. No reasons—humorous or relevant—have been offered for that, but we will no doubt get the story later.

The first item on the agenda is the question of the convener's casting vote at various stages in committee. I welcome Alex Johnstone, Margaret Smith and Mike Watson, who are representing the conveners liaison group—as it is called until we change standing orders. An apology has been received from Andrew Welsh, who was also invited to attend.

The essential background to the issue is set out in a brief paper. The issue was highlighted to the committee a long time ago. Recently, when we reached the stage of acting on the request to consider the matter, the committee agreed that I should write to the conveners liaison group and the result is the attendance of our three witnesses this morning. I do not want to put anybody on the spot, but I offer our witnesses the opportunity to make a statement about the general use of the casting vote. Mike Watson has looked up purposefully.

We have not prepared anything in advance, so we are all looking at each other. I speak in the light of my experience not only in the Parliament as the convener of the Finance Committee but as a previous member of committees in other forums and other places.

The general principle that a casting vote should not be used to effect change is broadly accepted, and I subscribe to it. I would adopt that position in the Finance Committee, if the situation arose. In two years of the Finance Committee, I have been obliged to use my casting vote only once and on that occasion change was not the issue.

It is important to state that there are different situations in which the casting vote may be used, as the discussion paper highlights. The situation in the Finance Committee arose when we were deciding what a topic of inquiry would be. I have subsequently learned that I acted incorrectly. Two proposals were put forward for an inquiry subject, and I counted those in favour of one and those in favour of the other together in the same vote, whereas the committee should have voted for and against each one. The vote was tied and I used my casting vote to vote for one of the topics of inquiry. That is the only such occasion that has arisen in the Finance Committee.

There is a difference between a situation in which a committee is dealing with amendments to a bill—or amendments to a committee report, when a vote might effect change—and a situation in which a decision is being taken on which inquiry to choose. If I had handled the vote correctly, the vote would still have been tied. Nonetheless, following my experience, the procedure is now clear in my mind.

I believe that there is some benefit in establishing a common approach to casting votes. It would be in the interests of conveners, committees and the Parliament to have such an approach for the protection of conveners and committees and to avoid accusations of using a vote to gain political advantage.

In considering its forward work programme, a committee is considering a change, and the status quo is the previously agreed programme. However, in drawing up a programme from scratch, the status quo cannot be defined. I presume you think that, in those circumstances, it is reasonable to exercise a casting vote as a substantive vote.

If a committee has begun a certain inquiry and then there is a proposal to suspend or abandon it and move on to another inquiry—

That is different, though. No change is involved if a committee has completed an inquiry, or anticipates completing an inquiry, and is discussing what to do next.

Yes. I do not regard that as change because, until a vote is taken, there is nothing to follow the inquiry. The vote does not change something that already exists.

You would feel happy about exercising a casting vote as a substantive vote in such circumstances.

In that situation, yes.

That seems fair enough.

I have experience of using the convener's casting vote. I am not at liberty to discuss all the occasions on which I have done so, for various reasons. The first time that I used my casting vote was when the Rural Affairs Committee was discussing the National Parks (Scotland) Bill. The suggestion was that a simple majority in the initial vote was always required to effect change—that is a firm guideline that we should stick to. During the passage of that bill, I had the experience of voting for an amendment and then using my casting vote to defeat it. I had no problem with that. We can stick to the simple procedure of requiring a majority for change in the initial vote.

However, there are other ways in which the casting vote can be used. I am concerned by the forcefulness with which some of the papers before us emphasise the requirement for strict guidelines to protect the convener. The guidelines are not always as simple to interpret as they were in the example that I gave from the debate on the National Parks (Scotland) Bill. As Mike Watson said, there will come a time when a convener has no alternative but to cast his vote as he feels appropriate. In that situation, it is important that he makes his decision and is prepared to defend it, rather than hiding behind the defence that is available to him.

Although I have been billed as someone who has used her casting vote, my clerk has confirmed that I have not yet had to do so. We found that in the Health and Community Care Committee there have been fewer than 10 votes in two years, during which we have considered two pieces of legislation. Like most committees, we do most of our work by consensus.

I endorse many of the comments that my colleagues have made. We would benefit from clarity as to the convener's position. The paper's position on the procedure for dealing with amendments to bills is to be welcomed and I support it. However, I am concerned about the implications for the select committee work that we do. Like Mike Watson, I have questions about discussions on future work load and work programmes. I would not like the more informal type of committee work to become formalised just for the sake of it. Members have traditionally taken an informal approach to discussions about work programmes and so on.

My question is: what is the status quo? When a committee is dealing with an amendment to a bill, it is clear what the status quo is. However, in many other situations it is much more difficult to determine. Is the status quo what the convener has in front of them—an amendment to the wording of a report on which the committee has been working in select committee mode—or is it the policy of the Executive and the Parliament as a whole? That is often open to interpretation.

There is mileage in seeking clarification of the convener's role in the legislative part of our work. The situation regarding other types of work is more complicated. It will be difficult to devise a rule that suits every occasion. Guidance—but with a strong steer—would probably be more useful. We should try to uphold the general principle that the casting vote should not be used to effect change. However, the convener should be allowed some flexibility because there are situations that do not fit neatly into that box.

I saw Brian Adam and Donald Gorrie indicating that they wanted to speak. If the conveners want to respond, they need only indicate that.

I share Margaret Smith's view that the key question is: what is the status quo? The papers before us suggest that, when dealing with legislation, the status quo is the bill. However, the bill is just a set of proposals. At stage 2 we also have a committee report, in which a committee of the Parliament, acting on its behalf, has taken a view on the bill. How would the conveners act if the bill said one thing and the committee report another? Would they regard the committee report as the status quo—because that represents the decision that the Parliament has reached on the matter—or would they regard the proposal in the bill as the status quo? Recently, in the debate on the Housing (Scotland) Bill, there were some examples of where the casting vote was exercised against the view expressed in the committee report.

I might not be the best convener to comment on this because the Finance Committee does not deal with much subject legislation. Where a committee produces a report that is at odds with the bill or calls for changes to the bill, that is a clearly expressed position of the committee itself. Amendments have to be lodged in respect of the bill, not the report. The amendments to which Brian Adam refers would relate directly to the report. It is a tricky issue. It could be argued that the committee's position is the majority one. However, in strict terms, the bill is the status quo, because it is in that context that amendments are moved and debated. On balance, the bill is the basis of the discussion and is therefore the status quo.

I am strongly inclined to agree with Mike Watson, particularly in relation to Executive bills. If the Executive commands a majority in Parliament, it must have the authority to act on behalf of Parliament. Where a committee chooses to challenge that, the Executive must be treated as holding the view of Parliament in that respect. I will throw into the works a point that occurred to me while I was rereading the paper: although the Executive view should be regarded as the view of Parliament while a majority runs the Executive, that would not necessarily be my view if the Executive were run by a minority administration.

That raises an interesting question.

There is a pragmatic approach to the problem. Members often use stage 1 committee reports as an opportunity to flag up difficulties in the bill. They tend to welcome the general principles of the bill but use stage 1 to indicate that they have a problem with particular issues. Generally, everyone in the committee can agree that there is a difficulty with a particular element of a bill. However, by the time we reach stage 2 and stage 3, the discussion is fine-tuned to the level of what amendments members are prepared to support. The stage 2 debate to which Brian Adam referred was very detailed. If, at that point, a convener cannot persuade the whole committee to come behind a particular amendment on an area of concern that was flagged up in the stage 1 report, that is when the casting vote comes into play. Stage 2 is a different animal from stage 1, particularly the generalised concern that might be expressed at stage 1. It may well be that the Executive will have introduced proposals to allay the fears of some members of the committee, who then feel that the approach taken at stage 1 has worked. Although other members might not agree, that is the balance of opinion at stage 2.

I agree with my colleagues that the bill is the status quo and that amendments should be dealt with as set out in the briefing paper.

Do the conveners agree that when we set up the Scottish Parliament we wanted to enhance the role of the committees? If the conveners regard the bill as the status quo and suggest that conveners should use their casting vote against the view of the committee, surely they are undermining that vision. We should bear it in mind that that happens only in circumstances where there is need for a casting vote. We want a Parliament that is driven by committees and not just the Executive. Do you not accept that, as the committees act on behalf of the Parliament and the only time that the Parliament expresses a view on a bill, beyond the general principles, is when the committee expresses its view, the committee report should become the status quo?

I am confident that, where there is a majority administration in control of the Executive, if Parliament wishes to overturn the views of the Executive it should be able to command a simple majority in committee. If it cannot achieve a simple majority, it would be improper for the casting vote to be used to achieve that.

The bill would come back at stage 3 and in the event of an issue being debated and tied at stage 2, the Presiding Officer would almost certainly select a similar amendment at stage 3, allowing the Parliament as a whole to decide on the issue.

If we accept the view expressed in the paper and by the conveners who are here, the driver is on the Executive's side. However, we should always try to protect the interests of the Parliament. I therefore suggest exactly the opposite: that it should be for the Executive to justify its position against the view of the committee. If the committee has already expressed its view and the Executive has not satisfied the committee, as demonstrated by its failure to achieve a simple majority, it is then open to the Executive to overturn a decision at stage 3.

I remind Brian Adam that the Executive governs with the authority of Parliament, so Parliament's authority lies on both sides.

To qualify what Alex Johnstone said earlier, if the committee decided that it wanted to express a different view from what the bill was saying, there must have been a majority in the committee for that view at that time. Something would have to have happened to change that, such as a slightly amended position on behalf of the Executive. If the committee had a view at stage 1, one could reasonably expect there also to be a majority view in the committee at stage 2. The chances are that the sort of situation that Brian Adam describes would arise relatively infrequently.

Well, it happened five or six times during consideration of the Housing (Scotland) Bill, and the casting votes all went in a direction that did not favour the committee report.

I remind members that we are gathering evidence this morning. We are testing views rather than seeking to change people's minds, and I think that we have explored those points. We will discuss this again when we reflect on the evidence that we have gathered.

I accept the position that, for a Government bill, the casting vote should be given for the bill and against the amendment. I suggest that strong guidance be given to the Presiding Officer that he should select an appropriate amendment to test the view of the whole Parliament.

I have two questions. First, what happens with members' bills? Suppose that Mike Watson is running with his Protection of Wild Mammals (Scotland) Bill, or that I progress with my idea for a bill to outlaw sectarianism. Those bills would contain the views of Mike Watson and Donald Gorrie and not the views of the Executive. If there were an amendment to a bill on sectarianism saying that it was okay to abuse Buddhists but not Hindus, for example, is it the bill or the amendment that represents the status quo? How would that be decided?

My second question concerns reports outwith bill territory. To oversimplify matters, there may be a big issue in the Rural Development Committee about whether subsidies should go to cows or to sheep. If the committee is pretty evenly divided, does the convener have the casting vote, and if the convener happens to be a sheep person or a cow person, can he or she just vote that way? That is a theoretical example.

I think that it goes to the cows, so long as it is dairy. [Laughter.]

Without wanting to personalise the example by referring to my bill on hunting, my view is that the same principles apply. The bill is the status quo, whether it is a member's bill, a committee bill or an Executive bill. That is what the committee is being asked to debate and consider amendments to. I do not differentiate between Executive and non-Executive bills.

The issue that Donald Gorrie raised with his example of sheep and cows would be analogous to the situation to which I referred earlier. In such a situation, we would take the votes for and against sheep and for and against cows. If there is no status quo in such a situation, it is then appropriate for a convener to use their casting vote on the basis of what they think is best in the circumstances.

While declaring an interest.

If that is appropriate. It might indeed be appropriate if the circumstances to which Donald Gorrie referred occurred in the Rural Development Committee.

I concur with that.

It occurs to me that a member's bill that reaches stage 2 has obviously been approved by Parliament at stage 1. In a sense, the convener would be backing Parliament by treating the bill as the status quo at stage 2.

Did the conveners discuss the paper in the conveners liaison group? I am quite happy for all three of the conveners to speak as individuals on whether the group has a general view and whether all conveners would welcome the clarification that is given in the paper.

We had a discussion but no conclusion was reached, so there is no conveners liaison group position as such.

Do you welcome the clarification that the paper gives? It makes matters much clearer for committee members as well as for conveners. The trickiest areas seem to be those such as future business or reports, which Mike Watson touched on. Margaret Smith has managed to avoid using her casting vote altogether, which is good because it avoids division. Are you happy that there are suitable mechanisms for conveners to avoid having to use their casting votes, which is what we are trying to bring about? Do you have that mechanism at your fingertips?

I am not convinced that we have what I would call a mechanism. The position that I usually take is that unity is strength—if a committee report is unanimous, it is much more difficult for someone who might want to rubbish that report to do so successfully. That does not mean that they would not try. Therefore, I urge the Health and Community Care Committee, when we might be heading towards an impasse, to consider seriously coming up with a position that everyone can agree with, because that would be a much stronger position for the committee and for me as convener to be in and from which to speak to people about the report.

We do not have a mechanism. The role of the convener is to try to pull together all the different proposals. Most of the time, most of us probably feel that committees respond to that. That is the manner in which I deal with disagreement.

As I said, it is quite tricky to say what the status quo is when putting reports together. The Health and Community Care Committee tends to take evidence and then have discussions around that evidence. More often than not, we simply have question-and-answer sessions with experts. We have an expert working with us who, with the committee clerks—usually also with me and sometimes with me and the deputy convener, Margaret Jamieson—will come up with a report that they think reflects the work that the committee has done.

I would find it difficult to consider the draft report as the status quo because the person who compiles the report often misses the point or gets the wrong angle on an issue that we have been exploring—that is no reflection on anyone who has assisted us. The draft report is often rehashed considerably by the committee as members say, "No, that is not what we meant," or, "No, I don't think that."

Defining the status quo will be much more difficult at that point, because an awful lot of clarification takes place. It is more difficult to have clear-cut guidance on the position of a convener in such cases. I would question what the status quo is when discussing a draft report in a way that I would not when discussing bills. I have probably not explained that very well, but it is how we have to deal with situations.

I think that Margaret Smith answered the point perfectly. The point is that the draft report is the status quo—at least that is what we are suggesting. I can imagine, however, that that could be quite tricky in some situations.

If a reporter has come up with a draft report, that draft report simply reflects the views of that reporter. The report has not been anywhere—unlike in the member's bill scenario that was discussed a few moments ago, in which, as Murray Tosh pointed out, Parliament will already have undertaken stage 1. The status quo is more clear in that case.

I am not picking out Mary Scanlon for any reason other than that her measles, mumps and rubella vaccine report was one of the Health and Community Care Committee's more recent reports, but that was simply her report and will remain so until it goes through an exhaustive process of people adding to it, asking questions about it and adding further lines of inquiry.

I have a difficulty with a report as it is first presented—before any committee member other than the member who presented it has had a chance to discuss it or input into it—forming a committee's status quo. That is a grey area and might give rise to various interpretations.

Presumably, the tidying-up exercise—the clarification, the straightening out or members pointing out that the adviser may not quite have understood the sense of what was said—is likely to be done on a broadly consensual basis. We are likely to have a vote, perhaps with the requirement for a casting vote, only if there is a fundamental point of difference within the committee.

Some committees have dealt with that simply by reflecting their division of opinion on the relevant issues; others have pushed such matters to votes. The committees that have voted on such matters have experienced the most internal angst; the others have either allowed individuals to be named as dissenters or have shown that a majority of committee members favoured a particular point of view. The art of convenership is to carry people along as much as possible but, where there are fundamental disagreements, to reflect those in committee reports.

You have highlighted the mechanisms that conveners have at their disposal to avoid divisions, convener. However, is it clear, when a report has been drafted, when changes have been made to it and when it is still before the committee, whether that report is the work of a reporter or the expert adviser? If the report does not carry majority support, should the convener support it? Perhaps that situation has not arisen, but I imagine that it could. A reporter's recommendations or an adviser's recommendations, in the form of a draft committee report, may make it through to that stage. Is it the job of the convener to support the report in such a situation and therefore to use their casting vote in favour of it, or should they avoid taking a decision and using a casting vote until the report can be amended to such an extent that it commands majority support?

That is a tricky question. I had not considered the status of a reporter's or adviser's report. I return to the original position: if the majority of committee members are not in favour of a report, that report will not stand, whether the decision is on something that the committee had written or on an amendment to it. I would be unhappy about using a casting vote in such a situation as that would, in effect, create a position that the majority of the committee did not support. I have not been in that position but, if Ken Macintosh were to press me for my view, I would come down on the side of not using the casting vote.

Let us consider the issue as simply as possible. In cases where a proposal is to effect change but that proposal cannot command the majority within a committee, it is critical that the casting vote should be used in such a way as to ensure that no majority equals no change. According to the CLG paper, legal advice suggests that we are required to use the casting vote where a division has taken place and the vote is tied.

May I clarify that point? If the committee is producing a report, the convener would not use a casting vote, because to use a casting vote in that circumstance would be to create a body of opinion that did not previously exist. In other words, we are saying that a report does not really exist until it is recommended by the committee. A report is just a draft produced by a member or an adviser, so the convener would not use their casting vote to make it the will of the committee or the expression of the committee's view.

The casting vote would not be used not because the body of opinion did not exist before, but because there was not a majority of the committee in favour of the proposal. Whether we were discussing the report as presented to the committee or an amendment to the report, if it did not carry the majority of the committee, I would be uneasy about using my vote to create that majority.

These matters are best resolved by avoiding circumstances in which we have to have a vote. If the committee is divided—unless that is clear-cut and we can clearly resolve it by a casting vote that we can justify—there will be a weakness in the committee report, as it will have to reflect the fact that opinion was divided. That is the only fair way.

It was said that the convener would have to justify their decision. I know that conveners cannot be forced to explain the way in which they use their casting votes, but should they explain what they believe to be the status quo and why they have cast their vote in one way or another? Would it be a help or a hindrance to have to have the justification for the vote in the Official Report?

I exercised a casting vote once and I do not think that explained it, but that is a fair point. Have any of the conveners justified or explained a casting vote?

I did not explain it when I used it, but that was not because I was unwilling to do so. I would not cast a vote that I did not feel I could justify. If it is felt that the convener should make a statement after using his or her casting vote, I would be comfortable with that.

I, too, would be comfortable with that, as I believe it would be beneficial. One of the benefits of such a statement would be clarity, which is one of the aims set out in the papers. It would be beneficial to have something in the Official Report to explain why the convener has acted in such a way, particularly in a situation such as Alex Johnstone described, in which he voted one way and then had to use his casting vote in another.

I would have no problem with a requirement to explain why I took a decision. Every time that I have had to exercise a casting vote, I have done so after a brief consultation to make sure that I was fulfilling the guidelines that I personally have adopted. I would be perfectly happy to justify my casting vote when I have to use it.

That is a useful idea to aid good practice. We may reflect on that when we finish dealing with the matter at a subsequent meeting. We have had a good thrash at this issue; we have had half an hour on it. Everyone has had the opportunity to make the points that they wanted to make, so I thank the three conveners for giving up valuable time this morning to share their experience and wisdom with us. We will return to the matter at a subsequent meeting.