Part 2: Stages of Bills - the general rules
2.1 This Part of the Guidance explains the various procedures that a Bill goes through from before introduction to Royal Assent and beyond. The description relates principally to the “general rules” (Rules 9.2 to 9.13A) for the three stages of a Government “programme” Bill – that is, a Bill introduced to give effect to Scottish Government policy.
2.2 There are also “special rules” (Rules 9.14 to 9.21) which apply different procedures to particular types of Bills (including to some specific types of Government Bills such as Budget Bills, and to Member’s Bills and Committee Bills). These are described in Part 3 of the Guidance.
2.3 The rules relating to amendments to Bills are explained in Part 4 of the Guidance.
2.4 The three-stage process is illustrated by a diagram in Annex D.
Government Bills – preparation for introduction
2.5 For Government Bills, the legislative process begins with the formulation of policy by Ministers and civil servants. Once it has been decided that primary legislation is necessary in order to give effect to the policy, a “Bill team” consisting of administrators and solicitors is formed to develop the policy in detail. The Bill team solicitor prepares drafting instructions, on the basis of which the drafter (who works closely with the Bill team but is not a member of it) prepares the Bill. Scottish Government Bills are drafted by the Parliamentary Counsel Office (PCO). PCO also drafts some non-Government (Members’ and Committee) Bills, and drafts some Scottish provisions in UK Government Bills.
2.6 In many cases, there will be a public consultation process during the preparation of the Bill. This may involve the publication of a Government consultation document, perhaps including detailed proposals for a Bill. The consultation may include a draft of the Bill.
2.7 The committee of the Parliament expected to consider the Bill when it is introduced may consider the proposals (or draft Bill) at this stage, perhaps taking evidence from interested individuals and bodies. Such “pre-legislative scrutiny” can be useful in allowing members to familiarise themselves with the subject-matter prior to introduction.
The pre-introduction period
2.8 Once the Government has finalised the text of the draft Bill, the drafter sends a copy of the draft Bill to the Head of the Parliament’s Chamber Office and to the Solicitor to the Scottish Parliament, together with draft accompanying documents and a covering letter. These documents are normally sent three weeks in advance of the date that the Bill is expected to be formally introduced in the Parliament. At the same time, a note of the Government’s view on legislative competence is sent to the Office of the Solicitor to the Scottish Parliament (OSSP).
2.9 The purpose of this pre-introduction period is to allow officials of the Parliament to prepare advice on various procedural matters that need to be decided in respect of each Bill, and to prepare for the formal introduction of the Bill. The draft Bill and accompanying documents submitted by the drafter are near-final versions, but it is possible for changes still to be made at this stage. For this reason, and because the Parliament has the exclusive right to publish the Bill and the accompanying documents after introduction, the text of the draft Bill and accompanying documents are confidential during this pre-introduction period.
2.10 The drafter’s covering letter sets out the Government’s view on the following issues:
- Content: whether the Bill conforms to the Presiding Officer’s recommendations on the content of Bills – in particular, whether the short and long titles accurately and neutrally reflect what the Bill does (see Annex A).
- Scope: what is the extent of the purposes of the Bill, and hence what advice would be given about the sorts of amendments that would be relevant to the Bill and consistent with the general principles of the Bill (see paragraphs 4.14-4.23 below).
- Protected subject-matter: the Government's initial view on whether a provision of the Bill relates to a protected subject-matter and whether the scope of the Bill would allow amendments that did so relate to be made (see paragraphs 2.83-2.84 below).
- Crown Consent: whether the Bill or any provision of it affect the prerogative, private interests or hereditary revenues of the Queen (or the interests of the Prince of Wales in his capacity as Prince and Steward of Scotland or Duke of Cornwall) and so require the signification of Crown consent (under paragraph 7 of Schedule 3 to the Scotland Act 1998 and Rule 9.11 – see paragraphs 2.51-2.54 below).
- Hybridity: whether the Bill or any provision of it affects private individuals of any category or class in a manner different to others of the same category or class, so that those adversely affected might reasonably demand the right to make representations to the Parliament.
- Financial provisions: whether any provisions of the Bill would have implications for expenditure from the Scottish Consolidated Fund, or would impose or increase any charge or payment payable into the Fund, thus requiring a financial resolution under Rule 9.12.3 or 9.12.4 (see paragraphs 2.119-2.151 below).
- Delegated powers: whether the Bill contains provisions conferring power to make subordinate legislation, or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, and so requires to be considered by the Delegated Powers and Law Reform Committee under Rule 9.6.2 (see paragraphs 2.36 and 2.37).
2.11 During this pre-introduction period, the OSSP prepares advice to the Presiding Officer on legislative competence, in order to assist the Presiding Officer in making a statement as to whether the Bill would be within the Parliament’s legislative competence, as required by section 31(2) of the 1998 Act.
2.12 At the same time, the clerks consider the points raised in the drafter’s letter, with the Head of Chamber Office sending a response shortly prior to introduction, setting out the advice that clerks will give on the issues covered in paragraph 2.10. The clerks also prepare advice to the Presiding Officer on whether a financial resolution is required (see paragraphs 2.119-2.151). They also make final formatting changes to the Bill to ensure that it conforms to the Presiding Officer’s determination (under Rule 9.2.3) on “proper form” (reproduced in Annex A) and prepare it for printing and publication.
2.13 All reasonable efforts are made by the Solicitor’s Office and the clerks to ensure that work is completed in time for the proposed date of introduction to be met. Periods of parliamentary recess cannot usually be counted towards the period of three weeks. It is sometimes possible to carry out the necessary pre-introduction work in less than three weeks. However, circumstances can also arise when a longer period is needed – for example, because a number of other Bills have been submitted at around the same time.
Accompanying documents and other documents
2.14 All Bills submitted for introduction must be accompanied by the various documents required under paragraphs 2 to 4 of Rule 9.3. For most Government Bills, these accompanying documents are—
- a statement on legislative competence by the Presiding Officer (under section 31(2) of the Scotland Act 1998 and Rule 9.3.1);
- a statement on legislative competence by the member in charge of the Bill (under section 31(1) of the 1998 Act and Rule 9.3.3(a));
- a Financial Memorandum (under Rule 9.3.2);
- Explanatory Notes (under Rule 9.3.2A);
- a Policy Memorandum (under Rule 9.3.3(c));
- an Auditor General’s Report, if required (under Rule 9.3.4).
2.15 For some specific types of Government Bill (Budget, Consolidation, Codification, Statute Law Repeals and Statute Law Revision Bills) different accompanying documents are required (Rules 9.16, 9.18, 9.18A, 9.19 and 9.20). For the requirements in relation to Committee Bills, see paragraph 3.39.
2.16 Under Rule 9.3.6, the Parliament may decide (by agreeing to a motion lodged by the member proposing to introduce a Bill) to allow a Bill to be introduced without one or more of the accompanying documents required under Rule 9.3. This Rule does not, however, permit the Parliament to waive the requirement for the statements on legislative competence by the member in charge and the Presiding Officer, since those are requirements of the Scotland Act 1998 and not just of the Standing Orders.
Statements on legislative competence
2.17 The duty on the Presiding Officer to make a statement on legislative competence differs from that on the member in charge. The Presiding Officer’s statement may indicate a view that the Bill is (or specified provisions of it are) outwith competence, giving reasons. A statement in such terms does not prevent the Bill from being introduced.
2.18 The established form of words for the statement on legislative competence by the member in charge of the Bill is: “In my view, the provisions of the [short title] Bill would be within the legislative competence of the Scottish Parliament.”.
2.19 Although the Presiding Officer’s statement must express a definite view as to the legislative competence of the provisions, and the statement by the member in charge must be that the Bill would be within competence, both statements are opinions as to the competence of the Bill at introduction. Legislative competence can be a complex issue, and can ultimately be determined only by the courts. It can be an important issue of debate throughout the scrutiny of a Bill (see paragraphs 4.10 and 4.11). The statements should not, therefore, be regarded as precluding the Parliament, or any committee, from critically examining a Bill on grounds of legislative competence during its passage.
2.20 The Financial Memorandum sets out the best estimates of the expected costs of the Bill to the Scottish Administration (i.e. the Government, in the broad sense of Ministers, departments and agencies), to local authorities and to other bodies, individuals and businesses. In each case, the Memorandum should indicate the timescales over which such costs are expected to arise and the margins of uncertainty in estimates given.
2.21 The Explanatory Notes normally provide a brief overview of what the Bill does, followed by a more detailed commentary on the individual provisions. Their purpose is to summarise objectively and clearly what each provision of the Bill does and to give other information necessary or expedient to explain the effect of the Bill. They must be neutral in tone, and should explain what the Bill does without seeking to justify the policy or advocate its merits. They should be as clear and readable as possible so as to be comprehensible to people with no legal or specialist knowledge. Explanatory Notes can be useful to the reader in describing the legal context in which the Bill operates, including reference to relevant statute and common law on which the provision relies, and explaining specialised terminology used in the Bill. Straightforward or self-explanatory provisions do not require explanation in the Notes.
2.22 The Policy Memorandum sets out the Bill’s policy objectives, what alternative approaches were considered, the consultation undertaken and an assessment of the effects of the Bill on equal opportunities, human rights, island communities, local government, sustainable development and other matters considered relevant. It provides an opportunity to argue the case for the Bill, and so can provide a useful complement to the Explanatory Notes.
Auditor General’s Report
2.23 This document is required only in relation to a Bill containing provisions “charging expenditure on” the Scottish Consolidated Fund. A charge on the Fund is a charge which the Government is required to pay without obtaining further authority from the Parliament by means of a Budget Bill. By agreeing to the provision, the Parliament voluntarily gives up its right to scrutinise the budget for the item concerned (see also paragraph 2.125, below).
Memorandum on delegated powers
2.24 Where a Bill contains provisions conferring powers to make subordinate legislation, or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, the member in charge must also lodge with the clerk a memorandum on delegated powers. This must set out:
- the person on whom any such power is conferred;
- the form in which the power is to be exercised;
- why it is considered appropriate to delegate the power;
- the parliamentary procedure (if any) to which the power is to be subject; and
- the reason for opting for that procedure.
2.25 The delegated powers memorandum is not formally an accompanying document, and therefore need not be lodged on the point of introduction. Instead it is lodged “immediately after” introduction (Rule 9.4A.1). In practice, the memorandum tends to be published at around the same time as the Bill and accompanying documents, normally on the day after introduction.
Role of the clerks in relation to accompanying documents
2.26 Accompanying documents (other than the Presiding Officer’s statement on legislative competence) are prepared by or on behalf of the member in charge of the Bill (in the case of Government Bills, by the Bill Team). The clerks have a role in ensuring that they are presented appropriately and conform to the requirements of Standing Orders (described in paragraphs 2.14-2.23 above).
Introduction of the Bill
2.27 Once the Presiding Officer has made a statement on legislative competence, and the other pre-introduction steps have been taken, the Bill may be formally introduced. A Bill may be introduced on any sitting day (Rule 9.2.1) by being lodged with the clerks. (A “sitting day” is any day when the office of the Clerk is open, but not when the Parliament is in recess or dissolved – Rule 2.1.3. The office of the Clerk is open on most weekdays throughout the year, other than the main public holidays. Recess dates and public holidays are published on the Parliament’s website.) The Bill must be signed by the member introducing it and by any supporters whose names are to appear on the published version (Rules 9.2.2 and 4).
Member in charge of the Bill
2.28 The member who introduces the Bill is also, in the first instance, the “member in charge” of it. As such, this member has certain specific rights in relation to the Bill at later stages during its passage. That member may also designate another member as member in charge. In the case of a Government Bill, only a junior Scottish Minister may be the designated member in charge (Rules 9.2A.1(b) and 9.2A.5). Such a designation is made in writing to the clerks, and only one other member may be so designated at any time. The designation of another member does not prevent the member who introduced the Bill from exercising any rights conferred by the Rules on the member in charge (Rule 9.2A.4).
2.29 Designation of another member as member in charge may be made at any time, but is normally made at the time of introduction. It gives the member who introduced the Bill an assurance that any necessary procedural steps can still be taken should the member be unavailable for a period or on a particular occasion.
2.30 In the case of a Government Bill, the member who introduces the Bill becomes the original member in charge by virtue of that member’s role as Minister, rather than in an individual capacity. If another member takes over that role during the passage of the Bill, the new Minister automatically assumes the status of member in charge (Rule 9.2A.1).
Publishing the Bill and accompanying documents
2.31 On the day of introduction, the Bill and accompanying documents are sent by the clerks for publication (Rule 9.4). The Bill and accompanying documents are normally available, both in hard copy and on the Parliament’s website, at 8:00am the following day.
2.32 Bills appear in “pdf” format on the website, so that page and line breaks remain identical to the printed version. This enables the internet user to make sense of amendments, which are worded by reference to the page and line numbers.
2.33 The introduction of a Bill is recorded by an announcement in the Business Bulletin. Information on the progress of a Bill through the Parliament also appears in the Bulletin.
2.34 Stage 1 is the stage where members can debate and vote on the general principles of a Bill.
Lead and secondary committees
2.35 Once a Bill has been introduced, the Parliamentary Bureau refers it to the committee within whose remit the subject matter of the Bill falls. For the purposes of Stage 1, this committee is known as the “lead committee”. If there is more than one committee to which the Bill is relevant, the Parliament may designate (on the recommendation of the Bureau) which is to be the lead committee. In that case, the other committees, known as “secondary committees” may (but need not) consider and report on the general principles of the Bill to the lead committee (Rule 9.6.1).
Delegated Powers and Law Reform Committee
2.36 If the Bill contains provisions conferring power to make subordinate legislation, or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, it must be considered by the Delegated Powers and Law Reform Committee, which reports on the relevant provisions to the lead committee (Rule 9.6.2). The Committee may also report on any provisions in the Bill which confer other delegated powers.
2.37 In considering those provisions, the Committee normally considers the delegated powers memorandum provided by the member in charge, and may also take evidence from officials and other interested parties. The Committee considers in particular whether the delegation of powers proposed by the Bill is appropriate or whether any powers concern matters which should properly be the subject only of primary legislation, and whether the parliamentary control over exercise of the delegated power proposed in each case is appropriate.
Stage 1 Report
2.38 At Stage 1, the lead committee’s role is to consider and report to the Parliament on the general principles of the Bill – that is, on the principal purposes of the Bill, rather than the fine detail.
2.39 The Parliamentary Bureau normally proposes to the Parliament a timescale within which Stage 1 should be completed. By setting a date by which the debate and decision on the general principles must have taken place, this will effectively set a date by which the lead committee should report.
2.40 The lead committee can decide how it will go about fulfilling its role. It may take different approaches depending on the subject matter of, and background to, the Bill. The lead committee is likely to issue a call for written evidence at the beginning of the inquiry. The lead committee is likely to consider different methods of gathering evidence from those who are likely to have an interest in the Bill or be affected by its provisions. The committee will normally also take oral evidence from a range of witnesses over a number of meetings. For any Government Bill, the relevant Minister or junior Minister and Scottish Government officials are likely to be invited to give evidence.
2.41 The lead committee must include in the Stage 1 Report consideration of the Financial Memorandum, taking into account any report on that document that may (but need not) be made to it by the Finance and Constitution Committee. In the case of a Government Bill, the Report must also include consideration of the Policy Memorandum. This enables the lead committee to consider, for example, whether sufficient consultation was undertaken before introduction.
2.42 The lead committee must take into account any views submitted to it by another committee. The Stage 1 Report will normally include links to (and comment on) any reports by the Delegated Powers and Law Reform (DPLR) Committee, Finance and Constitution Committee or secondary subject committees.
2.43 It is normal (but not obligatory) for a Stage 1 Report to include a recommendation to the Parliament as to whether the general principles of the Bill should be agreed to.
2.44 If a date for the Stage 1 debate has been set, the Stage 1 Report must be published not later than the fifth sitting day before that date (Rule 9.6.3A).
Stage 1 debate
2.45 The Parliament is then required to consider the general principles of the Bill and decide whether to agree to them (Rule 9.6.4). This debate cannot take place earlier than the fifth sitting day after publication of the Stage 1 Report, unless a motion by any member proposing that the debate takes place earlier is agreed to (Rule 9.6.3A). This is intended to ensure that there is, in the normal course of events, at least a week between publication of the Stage 1 Report and the Stage 1 debate.
2.46 Before the Parliament has decided on the general principles of the Bill, any member may propose by motion “That the [short title] Bill be referred back to the [name] Committee for a further report on the general principles of the Bill” (or of any specified part of the Bill). If such a motion is agreed to, the Bill returns to the lead committee for a further report (Rule 9.6.6). Otherwise, the Bill’s general principles are debated and decided.
2.47 The debate takes place on a motion by the member in charge of the Bill (“That the Parliament agrees to the general principles of the [short title] Bill”). Such a motion may be amended. By way of example, amendments might be worded (a) to add a reason why, in agreeing to the motion, the Parliament does so with some regret or misgivings – e.g. Insert at end “but, in so doing, expresses reservations about [etc.]”; or (b) so as to reverse the terms of the motion for a reason stated in the amendment – e.g. Leave out from “agrees” to end and insert “does not agree to the general principles of the [short title] Bill because [etc.]”.
2.48 Amendments of both types are admissible and may be lodged. Like all amendments to motions, such amendments are subject to selection by the Presiding Officer. Amendments may be selected by the Presiding Officer for debate if they are so worded that, if agreed to, the amended motion would make clear that the Bill should proceed to Stage 2. The Presiding Officer has indicated (in an announcement to the Chamber on 9 May 2017) that reasoned amendments of type (b) to reverse the motion would not normally be selected. This is because rejection of a motion amended in this way would mean that the Parliament has not made a resolution either way and would, therefore, could cast doubt on whether the Bill was still in progress.
2.49 A decision on the general principles need not involve members voting in a division. There is no quorum of members present required for the purpose of agreeing to the general principles.
2.50 If the Parliament agrees to the general principles of the Bill at Stage 1, the Bill proceeds to Stage 2. If the general principles are rejected, the Bill falls (Rule 9.6.7).
2.51 If a Bill contains provisions which would, if it were a Bill in the UK Parliament, require the consent of the Queen (or the Prince of Wales in his capacity as Prince and Steward of Scotland or Duke of Cornwall), the Parliament cannot debate whether to pass the Bill unless Crown consent has been signified to the Parliament.
2.52 Crown consent is required if a Bill contains provisions that would affect the prerogative, private interests or hereditary revenues of the Queen (or the Prince of Wales in the capacity explained above). It is understood that the Prince of Wales does not have any private interests as such in Scotland and, therefore, that Prince's consent is unlikely to be required for a Bill in the Scottish Parliament.
2.53 It is the Scottish Government’s responsibility to identify the need for, and to seek, Crown consent in relation to a Government Bill. (The Scottish Government would also normally be expected to seek consent, on the request of the member in charge, where a Member’s Bill required consent, and on the request of the committee convener where a Committee Bill required consent.) Discussions to agree whether consent is required (and, if so, at what Stage of the Bill’s passage it should be signified to the Parliament) take place as part of the correspondence between the Government drafters and the Parliament in preparation for the Bill’s introduction (see paragraph 2.8).
2.54 It is generally advisable to wait until the latest appropriate stage to signify consent, so that account can be taken of any amendments that might affect whether consent is required. Consent should be signified at Stage 1 if the provisions requiring consent are central to the Bill – if, in other words, there would be no point in proceeding with the Bill if consent were refused. Consent is signified to the Parliament in a brief statement at the beginning of the Stage 1 debate and must be done by a member of the Scottish Government (i.e. not a junior Scottish Minister). In any other case (the majority of cases where consent is required), signification at Stage 3 is more appropriate (see paragraph 2.97).
Stage 2 committee
2.55 If the Bill proceeds to Stage 2, the Parliamentary Bureau may refer the Bill back to the Stage 1 lead committee for Stage 2 or propose by motion that a different committee or committees take that Stage. The Stage 2 committee can be a Committee of the Whole Parliament, of which all MSPs are members and the Presiding Officer is the convener. (An example of a Bill dealt with at Stage 2 by a Committee of the whole Parliament was the Census (Amendment) (Scotland) Bill in 2000 (SP Bill 8, Session 1)).
2.56 The Bureau may also propose that the Bill be divided among two or more committees for Stage 2 consideration – preferably with each committee being allocated whole Parts or Chapters to deal with. For example, the Community Empowerment (Scotland) Bill (SP Bill 52, Session 4) was dealt with at Stage 2 in 2015 by both the Local Government and Regeneration Committee and the Rural Affairs, Climate Change and Environment Committee.
Timescale for Stage 2
2.57 Except for Budget and Emergency Bills, there must be at least 12 sitting days between the completion of Stage 1 (i.e. the decision at the end of the Stage 1 debate) and the beginning of Stage 2 (Rule 9.5.3A). So, for example, if the Stage 1 debate takes place on a Tuesday, Stage 2 could begin on the Friday of the second week thereafter (assuming all intervening weekdays are sitting days). Since committees normally only meet on Tuesdays, Wednesdays, Thursdays or (occasionally) Mondays, this rule effectively ensures that two whole weeks of parliamentary business must pass before Stage 2 commences.
2.58 Stage 2 proceedings may be dealt with at one committee meeting, or may require two or more meetings and be spread over a number of weeks. The Parliamentary Bureau may propose by motion a date by which Stage 2 is to be completed.
Lodging amendments etc.
2.59 As soon as a decision has been taken at Stage 1 to approve the general principles of the Bill, any member may lodge amendments to the Bill (Rule 9.7.5). As explained in Part 4 below, any member of the Parliament (not just members of the Stage 2 committee) may lodge amendments at Stage 2, and there is no limit on the number of amendments that may be lodged. There is no selection of amendments at Stage 2, so all admissible amendments may be moved. Further details of the procedures relating to amendments at Stage 2 are set out in Part 4.
Order of consideration
2.60 The normal or “default” order for consideration of the sections and schedules of the Bill at Stage 2 is for the sections to be taken in the order they arise in the Bill and each schedule taken immediately after the section which introduces it (Rule 9.7.4). Where a schedule is introduced by more than one section, it would normally be taken after the last such section.
2.61 A Bill can be considered in a different order. This may be done if, for example, a particular provision or Part early in a Bill is critical to the overall scheme of the Bill and the committee wants to defer consideration of that provision so that it can decide any amendments to it in the light of amendments agreed to other Parts of the Bill, or where consideration of an early Part of the Bill will allow more time for key issues it raises to be resolved and amendments drafted.
2.62 If any order other than the default order is to be followed, it must be decided by the Parliament (on a motion by the Parliamentary Bureau) or, if the Parliament does not so decide, by committee decision, usually on a motion of the convener. Before any such motion is lodged by the convener, the member in charge should be given an opportunity to comment on the order proposed.
2.63 Where the order of consideration is to be decided by motion, this should, if at all possible, be done before the meeting at which the committee commences Stage 2 consideration. This allows the Marshalled List of amendments (see Part 4 below) to reflect the agreed order.
Proceedings at Stage 2
2.64 The principal role of the Stage 2 committee is to consider and dispose of amendments. The procedures which require to be followed in doing so are explained in more detail in Part 4 of this Guidance. It is also open to the committee, within the timescale available, to take further evidence on the Bill at Stage 2 – for example, if it wishes to do so to inform its consideration of amendments.
2.65 There are no set time limits for members to speak on amendments at Stage 2. Within the time available, it is for the committee convener to decide how to manage the proceedings. Where Stage 2 is expected to take place over a number of committee meetings, the convener may announce a target point beyond which the committee will not proceed at a particular meeting.
2.66 Any member may attend the committee to participate in Stage 2 proceedings. Any member who has lodged an amendment, the member in charge and (if different) any Government Minister present is entitled to speak on the amendment. However, only members of the committee (or committee substitutes attending as such) can vote on amendments at Stage 2.
Recording decisions in committee
2.67 For each week during which there are to be Stage 2 proceedings, a Marshalled List is published and a groupings list prepared. Both documents are published on the Parliament’s website and circulated to members of the committee and to any other member who has lodged amendments. The clerks provide a procedural brief to assist the committee convener in calling amendments for debate according to the groups and putting all the necessary questions on amendments to the committee. The committee minutes list how all amendments were disposed of and all sections and schedules agreed to (whether or not amended). The same information can be obtained by reference to the Official Report.
2.68 There is normally no separate report of the committee’s Stage 2 proceedings. The Official Report and the “As amended” print of the Bill (if there is one) serve the purpose that would otherwise be served by a discursive report. It is, however, open to a Stage 2 committee to prepare a Stage 2 report – perhaps to explain why particular amendments were made or to draw the Parliament’s attention to provisions of the Bill where, although the committee could not agree on any particular amendments, it agrees that some amendment is required.
After Stage 2
The Bill “as amended”
2.69 If any amendment (however small) is agreed to, the Bill is re-published in amended form (Rule 9.7.8). The re-published Bill indicates all amendments agreed to by side-lining in the right margin. Provisions in the Bill as introduced are not re-numbered as a result of amendments being agreed to. So, for example, a new section inserted by amendment between sections 1 and 2 will appear as 1A, and the removal by amendment of section 3 will not cause section 4 to be re-numbered. This is intended to assist members and others to see clearly where amendments have been made during the parliamentary scrutiny of a Bill. All numbering is corrected for the Act if the Bill is passed.
2.70 The publication of a Bill as amended is recorded in the Business Bulletin. The Bill as amended is normally available, both in hard copy and on the Parliament’s website, at 8:00am on the day after Stage 2 is completed.
Revised or supplementary accompanying documents
2.71 If any amendment is made to the Bill at Stage 2 inserting a new section or schedule or substantially changing an existing provision, the member in charge must produce revised or supplementary Explanatory Notes. These must be lodged with the clerks no later than the fourth sitting day before Stage 3 starts (Rule 9.7.8A). The Notes should fulfil the same purpose that the Explanatory Notes provided on introduction i.e. they (or, in the case of supplementary Notes, they, when read with the original Notes) should provide an objective explanation of what each provision of the Bill does, to the extent that any provision requires explanation.
2.72 The member in charge must also lodge with the clerks a revised or supplementary Financial Memorandum if a Bill has been amended so as to substantially alter any of the costs set out in the original Memorandum. This must be done not later than whichever is the earlier of:
a) the tenth sitting day after the day on which Stage 2 ends;
b) the end of the second week before the week on which Stage 3 is due to start (Rule 9.7.8B).
The Memorandum (or, in the case of a supplementary Memorandum, that document read together with the original Memorandum) must provide the same information in respect of the Bill as amended as the original Memorandum provided for the Bill as introduced (see paragraph 2.20 above).
2.73 An amended Bill may have been changed in a way that the member in charge did not welcome and the member may even have it in mind to propose amendments reversing those changes at Stage 3. The member in charge is still required to produce revised/supplementary Explanatory Notes to explain neutrally what those provisions would do (to the extent that that is necessary), although it would be permissible for the Notes to draw attention to perceived anomalies or to errors in such provisions that are objectively evident. Similarly, the member in charge is still required to produce a revised/supplementary Financial Memorandum to set out best estimates of the costs of any amendments that substantially alter the costs set out in the original Memorandum.
2.74 If any amendments are made to insert provisions in the Bill conferring power to make subordinate legislation, or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, or to make substantial alterations to such provisions already in the Bill, the Delegated Powers and Law Reform Committee must report to the Parliament on those provisions (Rule 9.7.9). If a Bill is so amended, that committee may also consider and report on any new or substantially altered provisions conferring other delegated powers.
2.75 The member in charge must also, no later than whichever is the earlier of:
a) the tenth sitting day after the day on which Stage 2 ends;
b) the end of the second week before the week on which Stage 3 is due to start,
lodge a revised or supplementary memorandum on delegated powers for the Committee’s consideration (Rule 9.7.10). (See paragraphs 2.24 and 2.25 above for a discussion on Delegated Powers Memorandums.)
2.76 As for revised/supplementary Explanatory Notes and Financial Memorandum, the member in charge is required to explain any new or substantially altered provisions conferring power to make subordinate legislation, or conferring power on the Scottish Ministers to issue any directions, guidance or code of practice, even if these powers are the result of amendments not welcomed by the member in charge.
2.77 Stage 3 takes place at a meeting of the whole Parliament (Rule 9.8.1). Stage 3 is in two parts: proceedings to debate and dispose of those amendments (if any) selected for debate; and a debate on a motion by the member in charge that the Bill be passed. The two parts of Stage 3 are often scheduled to take place on the same day, but need not be.
Timetable for Stage 3
2.78 Except in the case of a Budget or Emergency Bill, there must be at least 10 sitting days between the day on which Stage 2 ends and the day on which Stage 3 starts (Rule 9.5.3B). So, for example, if Stage 2 is completed on a Tuesday, Stage 3 cannot take place until the Wednesday of the second week thereafter (assuming that all intervening weekdays are sitting days).
Amendments at Stage 3
2.79 Amendments for Stage 3 may be lodged as soon as Stage 2 is completed (Rule 9.8.3). Where the Bill was amended at Stage 2, Stage 3 amendments must relate to the “as amended” version of the Bill. Amendments lodged before that version is ready can only be published once the page and line references have been checked against the amended Bill.
Order of consideration
2.80 Rule 9.8.5 requires amendments at Stage 3 to be taken by reference to the order of the sections and schedules in the Bill (with amendments to the Long Title taken last), unless the Parliament agrees to a Parliamentary Bureau motion proposing an alternative order. Any such motion should be taken as early as possible before Stage 3, to ensure that the Marshalled List reflects the agreed order.
Selection of amendments
2.81 As at Stage 2, any member may lodge amendments, there is no limit to the number of amendments that may be lodged, and all admissible amendments are published in the Business Bulletin. Unlike at Stage 2, however, only those amendments selected for debate by the Presiding Officer appear in the Stage 3 Marshalled List (Rule 9.10.8). Selection of amendments is explained in more detail in Part 4 below.
Proceedings on amendments
2.82 The first part of the Stage 3 proceedings consists of the moving and disposal of those amendments selected for debate. Stage 3 proceedings on amendments are similar to those at Stage 2, except that all members may vote, and there is no requirement to agree to each section and schedule. Unlike at Stage 2, there is likely to be a timetabling motion agreed to by the Parliament, setting out deadlines by which debates on particular groups of amendments must be concluded (see paragraphs 4.104-4.115 below for discussion of timetabling motions).
Statement on protected subject-matter
2.83 After any amendments have been disposed of, the Presiding Officer is required to decide and make a statement on whether or not, in his or her view, any provision of the Bill relates to a “protected subject-matter” within the meaning of section 31(4) of the Scotland Act 1998 (Rule 9.8.5BA). Where a Bill contains such provisions, it can only be passed by a two-thirds majority of members – i.e. at least 86 MSPs must vote in favour (Rule 11.11.4). A provision relates to a protected subject-matter if it would modify, or confer power to modify—
- who is entitled to vote in Scottish Parliament elections,
- the voting system for Scottish Parliament elections,
- the number of constituencies, regions or any equivalent electoral area,
- the number of members to be returned for each constituency, region or equivalent electoral area.
But a provision does not relate to a protected subject-matter if it is incidental to or consequential on another provision of the Bill.
2.84 The Presiding Officer’s statement can be made orally or in writing. If it is made in writing, it must be published. In either case, the Chamber will be informed before the debate on the motion to pass the Bill begins.
Adjournment to a later day
2.85 If the debate on the motion to pass the Bill is scheduled to take place later on the same day as the day on which Stage 3 amendments are disposed of, the member in charge (or, in the case of a non-Government Bill, the member in charge or a Minister, if any, with general responsibility for the subject matter of the Bill) may move a motion, “That further Stage 3 consideration of the [short title] Bill be adjourned to [date]/a later day”. The motion may, but need not, name a specific day. This motion, which must be moved immediately after the Presiding Officer’s statement on protected subject-matter has been made, may be moved without notice and cannot be amended or debated – so the question is put on it straight away.
2.86 If the motion is agreed to, no further proceedings take place on the Bill until the day named in the motion (or until the day subsequently appointed by the Bureau as the “later day”) (Rule 9.8.5C). In the interim, further amendments may be lodged, but only by the member in charge (or, in the case of a non-Government Bill, the member in charge or a Minister, if any, with general responsibility for the subject matter of the Bill). Such amendments may be lodged only for the purpose of “clarifying uncertainties” or “giving effect to commitments given at the earlier proceedings at Stage 3” (Rule 9.8.5D). This limited right to lodge amendments also exists where the debate on the motion to pass the Bill is already scheduled to take place on a later day.
2.87 These two categories of permissible additional amendments correspond to possible reasons the member in charge may have for moving to adjourn to a later day. The first reason is to gain an opportunity to consider the implications of any unexpected or unwelcome decision to agree to Stage 3 amendments. In particular, any substantial new material inserted into a Government Bill by a non-Government amendment may require some adjustment to its drafting, and further changes elsewhere in the Bill may also be necessary before the Bill is, once again, fit to be enacted. It is important to note that the Parliament’s agreement to a motion to adjourn Stage 3 would not permit the member in charge (or the relevant Government Minister) to lodge amendments that would have the effect of reversing amendments to which the Parliament has agreed.
2.88 The second reason for moving to adjourn Stage 3 proceedings is where the member in charge (or relevant Government Minister) has promised, earlier in the Stage, to make some concession on a controversial issue, to meet concerns expressed by members in debate or in response to amendments already proposed. In such a case, the Parliament may feel able to support the motion to adjourn Stage 3 proceedings, on the ground that this will allow time for a mutually satisfactory compromise to be reached and appropriate amendments to be lodged. These amendments can then be moved by the member in charge (or relevant Government Minister) at the resumed Stage 3 proceedings.
2.89 A third reason the member in charge may have for moving to adjourn to a later day is to consider the implications of the Presiding Officer’s statement on protected subject-matter.
2.90 Where the debate on the motion to pass the Bill has been adjourned to a later day, or was originally scheduled for a later day, then after any such further amendments have been disposed of, the Presiding Officer is again required to make a statement on whether or not, in his or her view, any provision of the Bill relates to a “protected subject-matter”.
Referral back for further Stage 2 consideration
2.91 It may emerge during or shortly before Stage 3 proceedings that adjourning Stage 3 consideration is not sufficient to resolve outstanding difficulties with the Bill. It may become apparent, in other words, that although there is still general support for the Bill, the limited scope for further Stage 3 amendments does not allow the necessary changes to be made. This would be the case, in particular, if the member in charge or the Government wished to overturn an unwelcome amendment agreed to at Stage 3.
2.92 In such a case, the member in charge may move a motion that the Bill be referred back for further Stage 2 consideration in respect of specified sections and/or schedules, under Rule 9.8.6. Only whole sections and (normally) whole schedules should be specified in the motion, and no more than half of the sections of the Bill may be so specified. This is on the ground that, where the difficulties with the Bill are more widespread, it would be better to withdraw it and introduce a new Bill in its place.
2.93 If the motion is agreed to, it is for the Parliamentary Bureau to determine which committee should conduct the further Stage 2 proceedings and the timetable for those proceedings. A Bill may be referred back only once (Rule 9.8.8). Further Stage 2 proceedings follow the same rules as for Stage 2 (except that only those sections and schedules specified in the motion to re-commit need be agreed to). At least four sitting days must elapse between the day on which Stage 3 proceedings are adjourned and the day on which the further Stage 2 proceedings start (Rule 9.5.3C).
2.94 A Bill amended in the further Stage 2 proceedings is re-published and then returns to Stage 3. At least four whole sitting days must elapse between the end of the further Stage 2 proceedings and the resumption of Stage 3 (assuming the Bill has been amended during the further Stage 2 proceedings) (Rule 9.5.3C). Stage 3 amendments may again be lodged – but only to those sections and schedules specified in the motion to re-commit or to other parts of the Bill (including the long title) if they are necessary in consequence of amendments made on re-commitment (Rule 9.8.6). After any such amendments have been disposed of, the Presiding Officer is again required to make a statement on whether or not, in his or her view, any provision of the Bill relates to a “protected subject-matter”.
Debate on motion to pass the Bill
2.95 After proceedings on amendments at Stage 3 are concluded (including any adjourned proceedings under Rule 9.8.5C, and any further Stage 3 proceedings after referral back for further Stage 2 consideration), the Parliament must decide whether to pass the Bill. The debate takes place on a motion by the member in charge of the Bill that the Parliament agrees that the Bill be passed. Such a motion may be amended, but the Presiding Officer applies similar criteria in selecting amendments as are applied to reasoned amendments to Stage 1 motions (see paragraphs 2.47 and 2.48 above). An amendment to a Stage 3 motion will, therefore, be selected only if it would remain clear from the amended motion that the Bill would be passed if the motion were agreed to.
2.96 The question on the motion that the Bill be passed must be decided by division. The result of the division is valid only if at least a quarter of MSPs vote (i.e. if at least 33 MSPs take part in the voting), otherwise the Bill is treated as rejected. If the majority votes against the Bill, it falls. If the Presiding Officer has made a statement that any provision of the Bill relates to a protected subject-matter (see paragraph 2.83 above), the Bill is passed only if at least 86 MSPs vote in favour, otherwise the Bill is treated as rejected.
2.97 If provisions of the Bill require Crown consent (see paragraphs 2.51-2.54), and that consent has not been signified at Stage 1 (or if the provision giving rise to the need for consent has been inserted by amendment), it is signified at this Stage by the relevant Minister during his or her speech. This is normally done at the start of the debate on the motion that the Bill be passed, and must be done by a member of the Scottish Government (i.e. not a junior Scottish Minister).
“As Passed” version
2.98 If a Bill is amended at Stage 3, it is re-published to show the Stage 3 amendments. As with other amended versions, the Bill includes side-lining to show amendments made since the previous version, and leaves numbering un-corrected. If the Bill was not amended at Stage 3, the previous print of the Bill serves the purpose of showing the Bill in the form in which it was passed.
Powers of Law Officers and Secretary of State
2.99 Section 32 of the Scotland Act 1998 provides that a Bill, once passed, may be submitted for Royal Assent (see paragraphs 2.116-2.118 below) by the Presiding Officer after the expiry of a four-week period. During that period, the Bill is subject to legal challenge by the Advocate General for Scotland, the Lord Advocate or the Attorney General under section 32A or 33, and may also be subject to an order made by the Secretary of State under section 35. The Presiding Officer may, however, submit the Bill for Royal Assent after less than four weeks if notified by all three law officers (under section 32A(3) or 33(3)) and the Secretary of State (under section 35(4)) that they do not intend to exercise those powers.
2.100 The Secretary of State may only make a section 35 order on the ground that the Bill is incompatible with international obligations or defence or security interests, or because it would adversely affect the operation of the law on reserved matters, where that law is modified by the Bill. Such an order, which must specify the provisions of the Bill objected to and the reasons, prohibits the Presiding Officer from submitting the Bill for Royal Assent.
2.101 A challenge from one of the Law Officers is made:
(a) under section 32A on grounds of a question as to whether any provision of the Bill relates to a protected subject-matter (see paragraph 2.83). Such a challenge may be made if:
i. the Bill was rejected in a case where the Presiding Officer had stated that, in his or her view, any provision of the Bill related to a protected subject-matter;
ii. the Bill was passed (but with fewer than 86 members voting in favour) in a case where the Presiding Officer had stated that, in his or her view, no provision of the Bill related to a protected subject-matter;
(b) under section 33 on grounds of a question as to whether the Bill or any of its provisions would be within the Parliament’s legislative competence.
2.102 Any such challenge takes the form of a reference to the Supreme Court. Once such a reference has been made, the Bill cannot make further progress towards Royal Assent until the Supreme Court has either decided (or otherwise disposed of) the reference, or has referred a question arising from it to the European Court of Justice (ECJ).
Motions to reconsider the Bill
2.103 Where the Supreme Court refers to the ECJ a question arising from the case brought by the Law Officer, proceedings on that case are stayed pending the ECJ judgement. Since the ECJ can often take two years or more to decide a question referred to it, section 34 of the Scotland Act 1998 allows the Parliament to have a reference to the Supreme Court withdrawn if the Supreme Court has in turn made a reference to the ECJ. This is achieved by a motion that the Parliament resolves that it wishes to reconsider the Bill (Rule 9.9.1). Such a motion may be moved only by the member in charge of the Bill and only if neither the reference to the Supreme Court nor the Supreme Court’s reference to the ECJ has been decided or otherwise disposed of.
2.104 If the motion is agreed to, the Presiding Officer informs the Law Officers. The Law Officer who made the original challenge must then (under section 34(2)(b)) request withdrawal of the reference to the Supreme Court. The Parliament’s reconsideration of the Bill (“Reconsideration Stage”) cannot take place until the withdrawal of the Supreme Court reference has been formally confirmed.
2.105 If there is no ECJ reference, nothing further can be done in the Parliament until the Supreme Court has decided (or otherwise disposed of) the Law Officer’s reference. If the Supreme Court decides that any provision of the Bill would be outwith the legislative competence of the Parliament, or if a section 35 order is made by the Secretary of State, the member in charge of the Bill may move a motion that the Parliament resolves to reconsider the Bill (Rule 9.9.2(a) and (b)).
2.106 A motion to reconsider the Bill may also be moved if:
(a) in a case where the Bill was passed (but with fewer than 86 members voting in favour) where the Presiding Officer had stated that, in his or her view, no provision of the Bill related to a protected subject-matter, the Supreme Court decides that any provision of the Bill does in fact relate to a protected subject-matter (Rule 9.9.2(c));
(b) in a case where the Bill was rejected, the Supreme Court decides that no provision of the Bill that was the subject of the reference to the Court does in fact relate to a protected subject-matter (Rule 9.9A.1).
2.107 If the motion is agreed to, the Parliamentary Bureau proposes in a Business Motion a time for Reconsideration Stage on the Bill at a meeting of the Parliament.
Amendments at Reconsideration Stage
2.108 Where Reconsideration Stage is held following a reference under section 33 (on legislative competence grounds) or an order under section 35, the main purpose of the Stage is likely to be to amend the Bill so that the problem which led to the reference or order being made is resolved (Rule 9.9.4). So only amendments aimed at resolving that problem are admissible. The judgment of the Supreme Court, the question that was referred to the ECJ or the section 35 order will be used by the clerks as a guide to the admissibility of amendments at Reconsideration Stage. Amendments are worded by reference to the “As Passed” version of the Bill. As at Stage 3, amendments are disposed of in the order in which they relate to the Bill, unless the Parliament decides, on a Bureau motion, to follow a different order (Rule 9.9.4). There is no selection of amendments at Reconsideration Stage, so all admissible amendments lodged may be moved.
2.109 Where Reconsideration Stage is held following a reference under section 32A (on protected subject-matter grounds), the purpose of the Stage is to take a fresh decision whether to pass or reject the Bill, subject to the correct majority threshold. In these circumstances, the Bill may not be amended at Reconsideration Stage (Rules 9.9.4 and 9.9A.2).
Proceedings at Reconsideration Stage
2.110 The above differences aside, proceedings at Reconsideration Stage are similar to those at Stage 3. After any amendments have been disposed of and before the Parliament debates whether to approve the Bill, the Presiding Officer must make a further statement on protected subject-matter (see paragraph 2.83 above). The decision whether to approve the Bill must then be taken by division (subject, as at Stage 3, to the requirement that at least 33 MSPs must take part in the voting and that, if the Presiding Officer has made a statement that any provision of the Bill relates to a protected subject-matter, the Bill is passed only if at least 86 MSPs vote in favour).
2.111 A Bill approved after Reconsideration Stage is again subject to legal challenge by the Law Officers or to the making of an order by the Secretary of State in exactly the same way as it was after it was first passed. There is no limit to the number of times that the Parliament may approve a Bill or that those persons may exercise their rights under the Scotland Act 1998 in relation to it.
2.112 If the Bill has been amended at Reconsideration Stage to include provisions that would require Crown consent (see paragraphs 2.51-2.54 above), consent for those provisions is signified during debate on whether to approve the Bill.
From Bill to Act
2.113 If a Bill that has been passed (or approved at Reconsideration Stage) has not been subject to a section 32A or 33 reference or a section 35 order within the four-week period, the Presiding Officer then sends the Bill, together with draft Letters Patent, to the Palace for Royal Assent. As noted above, the Presiding Officer can submit the Bill for Royal Assent before the expiry of the four-week period if the Secretary of State and all three law officers have confirmed that they will not exercise their powers under those sections.
2.114 To prepare for Royal Assent, a version of the Bill is prepared for the Palace, showing the Bill in its final form. This “Palace copy” version of the Bill is not published. This is the same as the previous, published version but with all numbering corrected and any necessary “printing points” taken in. Printing points are non-substantial corrections (i.e. typographical or formatting points and other minor corrections that do not alter the legal effect of the Bill).
Preparation of the Official Print
2.115 At the same time, the “Official Print” version of the Act is prepared. This is produced on special archive-quality paper bound with ribbon. The Official Print is identical, in terms of its legislative text, to the Bill that was passed by the Parliament. (This is made possible by the drafting convention that, within the text of a Bill, all references are, for example, to “this Act” rather than “this Bill”.)
2.116 The Bill becomes an Act of the Scottish Parliament when it receives Royal Assent. Royal Assent is treated (under section 28(3) of the 1998 Act) as taking place at the beginning of the day on which Letters Patent signed by the Queen are recorded in the Register of the Great Seal by the Keeper of the Registers of Scotland (under section 38(1)(a) of the 1998 Act). When the Keeper confirms that Royal Assent has taken place (under section 38(2) of the 1998 Act), the Clerk of the Parliament writes the date of Royal Assent on the Official Print (under section 28(4) of the Scotland Act 1998 and section 38 of the Interpretation and Legislative Reform (Scotland) Act 2010 (“the 2010 Act”)).
2.117 Acts are numbered consecutively in each calendar year (section 38 of the 2010 Act). The Clerk also assigns an “asp number” in the form “2015 asp 1” (for the first Act given Royal Assent in 2015). This number is the equivalent of the chapter number assigned to an Act of the UK Parliament. The Clerk then sends a copy, certified by the Clerk as a true copy, of the Official Print to the Queen’s Printer for Scotland, as authority to publish the Act. The Official Print itself is sent to the Keeper of the Records of Scotland for inclusion in the National Records of Scotland. The National Records of Scotland also hold the signed Letters Patent.
2.118 The “Queen’s Printer” version of the Act – which is identical to the Official Print except with the date and asp number added – is published and made available to the public through Stationery Office bookshops and on the legislation.gov.uk internet site (operated by the National Archives). The Act is not a publication of the Parliament. A link to it will, however, appear on the Parliament’s website.
2.119 Where a Bill contains particular provisions affecting payments into or out of the Scottish Consolidated Fund (the “SCF”), no proceedings can be taken on the Bill after Stage 1 unless the Parliament has, by resolution, agreed to the relevant provisions. That resolution is known as a “financial resolution”. Financial resolutions are governed by Rule 9.12.
Principles behind the Rule
2.120 The financial resolution procedure is a means of giving extra control to the Scottish Government over Bills with certain financial implications. Only a member of the Scottish Government or a junior Scottish Minister can lodge a motion for a financial resolution (Rule 9.12.7), and so the Government has a veto on whether any Bill that requires such a resolution makes progress. Unless a motion is lodged and the Parliament agrees to it, a Bill that requires a financial resolution falls.
2.121 Rule 9.12 is intended to give effect to the principles of the Financial Issues Advisory Group (FIAG) which reported to the Consultative Steering Group (CSG) before the establishment of the Parliament. FIAG advocated a clear separation between “policy Bills” that would create powers or functions, and “Budget Bills” that would allocate resources. The latter provide authorisation for the spending of money on existing functions, whereas separate provision would always be needed in policy Bills for conferring the functions which give rise to the demand for funding. It is the policy provision that requires the consent of the Parliament by means of a financial resolution. A resolution recognises that the new (or increased) demand for funding in a policy Bill is something that will require to be met from the SCF. This is distinct from the annual Budget process, which determines the amounts of funding allocated.
2.122 In recommending this system, FIAG was attempting to give effect to the established principle that the executive arm of government has a unique responsibility in relation to the management of public funds. If it is to fulfil this function, the Scottish Government must maintain control both over the raising of revenue and over public spending – hence the need for a mechanism to secure Scottish Government consent for payments either into or out of central funds.
When a resolution is required
2.123 The Presiding Officer decides in relation to every Public Bill whether or not a financial resolution is required (Rule 9.12.2). This decision is usually made shortly after introduction. It is communicated to the member introducing the Bill and to relevant Ministers and committee conveners, and announced on the Bill’s webpage.
2.124 The decision is made with reference to the provisions contained in the Bill, the information in the Financial Memorandum and any other relevant information. The need for a resolution does not just arise in relation to mandatory provisions (e.g. those using “must”) in a Bill, but also in relation to optional provisions (e.g. those using “may”). Budgetary authorisation may be required to ensure that a mechanism provided in the Bill can be used, as well as for what the Bill requires to be done. The question is whether, if the mechanism were resorted to, there would be a legitimate claim against the SCF.
Rule 9.12.3(a): resolutions required due to new charges on the SCF
2.125 A resolution is required in every case where a Bill “charges expenditure on” the SCF (Rule 9.12.3(a)). Such charges – which the Scottish Government is required to pay without obtaining further authority from the Parliament by means of a Budget Bill – are provided for only in exceptional cases. An example is provision for judicial salaries. The creation of a new charge requires a financial resolution – regardless of the amount of money involved. By agreeing to such a provision, the Parliament voluntarily gives up its right to scrutinise the budget for the item concerned. (It is for this reason that, where a Bill contains such a provision, it must be accompanied on introduction by a report by the Auditor General for Scotland (under Rule 9.3.4).)
Rule 9.12.3(b): resolutions required due to other expenditure from the SCF
2.126 A resolution is required in relation to other expenditure charged on or payable out of the Fund if two tests are satisfied (Rule 9.12.3(b)). The first test is what the “likely effect” of the Bill would be. Expenditure is a “likely effect” of a Bill where new or increased expenditure is the likely outcome of the Bill’s implementation, taking into account the wider context in which the Bill operates, not just where the Bill requires expenditure to be incurred.
2.127 In addition, expenditure that is likely to arise in the event of a power conferred by the Bill being exercised will be taken into account, even if the power is not certain to be exercised. It is the mechanisms that the Bill provides, not the way in which particular Ministers currently intend to use those mechanisms, that is important. Where there is substantial uncertainty about the level of expenditure that might be involved in a Bill, but there is potential for the expenditure to exceed the “significant” threshold, an approach of erring on the side of caution and saying that a financial resolution is required is likely to be adopted. If, however, the implications of a Bill for expenditure are very indirect or uncertain a resolution may not be required.
2.128 The second test is that the expected expenditure (whether it is new or increased) must be “significant”. As a result, a resolution may not be required for a Bill which will require expenditure but where the amounts involved are expected to be trivial or easily capable of being absorbed within existing budgets.
2.129 The combined amount of expenditure of the types mentioned in paragraphs (i), (ii) and (iii) of Rule 9.12.3(b) in a Bill is used to determine “significance”. Expenditure of over £400,000 in any single financial year (regardless of whether that level of expenditure is ongoing or one-off) is the threshold for what is currently considered “significant” for the purposes of Rule 9.12.3(b).
2.130 A financial resolution may be required even if no overall increase in spending from the Fund is anticipated – the fact that a Bill gives rise to a need for spending has to be recognised, even if it is intended that that need will be met by, for example, efficiency savings or diversion of funds from another area. However, savings arising from provisions in the Bill itself may be taken into account in determining the overall cost of the Bill for the purposes of Rule 9.12.3(b).
Rule 9.12.4: resolutions required on grounds of charges or other payments into the SCF
2.131 A financial resolution is required if a Bill satisfies the two tests set out in Rule 9.12.4(a) and (b). The first test is that it would impose or increase a charge, or otherwise require a payment to be made, including by provision that is to be made by subordinate legislation. It is assumed for the purposes of Rule 9.12.4 that a power to impose or increase a charge will be used.
2.132 The second test is that the charge or payment must be made – with one exception – to persons with a statutory duty to pay the amounts involved into the Scottish Consolidated Fund. In practice, this means the Scottish Ministers and other office-holders in the Scottish Administration, together with directly-funded bodies. It excludes most non-departmental public bodies (NDPBs), whose income is not payable into the Fund.
2.133 The exception (set out in brackets in Rule 9.12.4(b)) relates to bodies which are not required to pay income received (e.g. from charges or payments) into the SCF, but who are only not so required because a provision in an Act of the Scottish Parliament (or in subordinate legislation made under such an Act) allows them instead to keep that income. Bodies in that position, in other words, have the power to “recycle” income – offsetting it directly against money they would otherwise require to be given from the SCF for expenditure purposes.
2.134 The purpose of the exception is to ensure that a Bill which authorises such a body to levy charges or payments is not automatically exempted from the need for a financial resolution just because the body is not required to pay the income into the SCF. Without this exception, an arbitrary distinction would be drawn between public bodies which have this limited type of financial autonomy and those which don’t – even though the impact on the SCF of a Bill authorising either type of body to raise new income would be essentially the same.
2.135 Rule 9.12.5 provides two exemptions from the application of Rule 9.12.4. The first is a similar exemption for insignificant amounts as is provided in relation to expenditure by Rule 9.12.3. The income produced by a Bill is currently considered “significant” for the purposes of Rule 9.12.4 if it is likely to exceed £400,000 in any single financial year. As with Rule 9.12.3(b), an approach of erring on the side of caution and saying that a financial resolution is required is likely to be taken in cases where there is substantial uncertainty about the level of income that will be produced by a Bill but where there is potential for it to exceed the “significant” threshold.
2.136 The second exemption is for charges or payments which are levied to recover the cost of goods or a service provided. Charges for goods that are reasonable and charges for services that are limited to approximately cost recovery level do not require financial resolution cover. This would cover, for example, a charge for providing someone required to register information with a copy of their entry in the register. It would allow the charge levied to be at a higher level than would be justified only in terms of marginal cost recovery (i.e. the cost of the paper, photocopier toner and staff time making the copy) – but not substantially higher. The underlying intention is that a financial resolution should only be required in cases where charges or payments can be levied in such a way as to generate substantial profit or to contribute significantly to the income of the body in question.
Lodging and moving motions for resolutions
2.137 Under Rule 9.12.7, a motion for a resolution may be lodged and moved only by a member of the Scottish Government or a junior Scottish Minister. (The Minister who moves such a motion need not be the one who lodged it, and may move it without having added his or her name as a supporter (Rule 8.3.2).) For non-Government Bills, it is for the member in charge of the Bill to approach the Scottish Government, once it has been decided that a resolution is required, to request the relevant Minister to lodge and move a suitable motion. The motion must be lodged within six months of the completion of Stage 1 (Rule 9.12.8(a)) and amendments to such a motion are not admissible (Rule 9.12.7). If no motion is lodged within this time or if such a motion is lodged but not agreed to by the Parliament when it is taken, the Bill falls (Rule 9.12.8).
2.138 Most motions on financial resolutions are formally moved without any debate taking place. Financial scrutiny takes place through consideration of the Financial Memorandum at Stage 1 and concerns on financial matters may be raised in the Stage 1 debate. Motions for financial resolutions are usually broadly worded, which allows many cost-bearing amendments to be debated and decided on at later stages without a further financial resolution being required. Sometimes, however, a motion may be more narrowly worded, making it more likely that any cost-bearing amendments may require a new financial resolution.
Cost-bearing amendments to Bills
2.139 Rule 9.12.6 provides that the question cannot be put on an amendment to a Bill if the effect of the amendment would be that the Bill, had it been introduced in that form, would need a resolution that it doesn’t have. Rule 9.12.6 does not affect the admissibility of amendments, and an amendment to which it applies may be lodged and published in the Business Bulletin and in a Marshalled List.
2.140 A financial resolution is required in respect of any amendment that would, by itself, cause a Bill to require a financial resolution that it would not otherwise require – referred to as an “individually significant cost-bearing amendment”. The term “cost-bearing” is used here to refer to both amendments that involve expenditure from the SCF and amendments involving income being paid into the SCF.
2.141 If an amendment would change the Bill in a way that makes the costs likely to arise from the Bill (or a charge imposed or increased by the Bill) exceed the “significant” threshold of over £400,000 in any single financial year, a financial resolution will be required.
2.142 An amendment that might, in combination with other amendments, cause a Bill to require a financial resolution that it would not otherwise require is a “cumulative cost-bearing amendment”. These are amendments that involve costs that are not high enough to make them individually significant cost-bearing amendments.
2.143 A financial resolution is required in respect of any cumulative cost-bearing amendment that would, at the time it falls to be disposed of, taking account of any other such amendments already agreed to, cause the Bill to require a financial resolution that it would not otherwise require.
Determination of whether an amendment requires a financial resolution
2.144 The Presiding Officer determines which amendments are individually significant cost-bearing amendments and which are cumulative cost-bearing amendments (and, where necessary, assigns costs to amendments) (Rule 9.12.6C). No determination is necessary where a cost-bearing amendment is covered by the terms of an existing financial resolution.
2.145 Members should consider whether any amendment they intend to lodge might involve costs (and, if so, whether these are covered by an existing financial resolution). An estimate of the costs involved in any potential cost-bearing amendment should be provided. The Financial Scrutiny Unit – part of the Scottish Parliament Information Centre (SPICe) – is available to assist members in this. The Government may also provide its own cost estimate. Amendments should preferably be lodged sufficiently well in advance of the relevant lodging deadline for cost estimates to be submitted, for the Presiding Officer to make a determination and, ideally, for a motion for a financial resolution to be taken by the Parliament in advance of the scheduled proceedings on amendments.
2.146 The Presiding Officer’s determination will be based on whatever information is available – where little information is available or insufficient time is available to obtain information, an approach of erring on the side of caution is likely to be adopted, which may result in amendments being assigned a higher cost than would be the case with better information. The Financial Scrutiny Unit provides analysis of the different cost estimates submitted for the Presiding Officer. Information on the Presiding Officer’s determinations is published as part of the Groupings of Amendments.
2.147 A determination under Rule 9.12.6C is also required in relation to Government amendments that involve costs that are not already covered by a financial resolution and such amendments should therefore also be lodged sufficiently far in advance of the scheduled proceedings on amendments to enable the Presiding Officer to be provided with advice and make a determination. The Government may ask the Presiding Officer to make an early determination that a proposed amendment is likely to require a financial resolution, in advance of the amendment being formally lodged, in order to allow the necessary motion to be lodged and taken by the Parliament before the scheduled proceedings on amendments. Such a request may be made in relation to Government amendments and, where the Government can provide sufficient information, also in relation to non-Government amendments.
Procedure on cost-bearing amendments at Stage 2
2.148 Individually significant cost-bearing amendments may be debated as normal at Stage 2, but the question whether the amendment be agreed to cannot be put unless an appropriate financial resolution is in place (Rule 9.12.6(a)). The effect is that, without such a financial resolution, the amendment cannot be agreed to.
2.149 Cumulative cost-bearing amendments are debated as normal, but the question on them will normally be deferred until a later point in Stage 2 (unless an appropriate financial resolution is in place, in which case the amendment will be disposed of in the normal way) (Rule 9.12.6(b)). At that later point, remaining cumulative cost-bearing amendments will be debated together before being disposed of. In principle, any combination of amendments that does not lead to the Bill requiring a financial resolution may then be agreed to. However, any amendment that will, taking account of other cost-bearing amendments already agreed to, trigger the need for a financial resolution will be disposed of without the question being put (unless an appropriate financial resolution is in place) (Rule 9.12.6A).
2.150 Questions on amendments related to cumulative cost-bearing amendments and the questions on sections and schedules amended by either cumulative cost-bearing amendments or related amendments are also deferred. Questions on amendments and questions on sections and schedules that are deferred by virtue of Rule 9.12.6(b) will be put in their original marshalled order at the time they are disposed of.
Procedure on cost-bearing amendments at Stage 3
2.151 No proceedings (including debate) may take place on an individually significant cost-bearing amendment at Stage 3 unless an appropriate financial resolution is in place. Stage 3 proceedings on a cumulative cost-bearing amendment (including debate and the question being put) may take place if the amendment is covered by a financial resolution. The test is whether, at the time the proceedings should take place, the amendment would (as a result of other cost-bearing amendments already having been agreed to) trigger the need for a financial resolution (Rule 9.12.6B). For example, there may be two cost-bearing amendments, such that neither would exceed the threshold on its own but the joint effect of agreeing both would exceed the threshold. Either one can be debated (as part of a group) so long as the other has not been agreed to. But as soon as one has been agreed to, it is no longer possible to call the other (even if it has already been debated) because agreeing to it would in those circumstances cause the Bill to exceed the threshold.
Withdrawal of Bills
2.152 Rule 9.13 allows a Bill to be withdrawn during Stage 1 by the member in charge of the Bill. The consent of the Parliament (or of the other members whose names appear on the Bill as supporters) is not required. The Bill is withdrawn by the member in charge writing to the Clerk. A notice of the Bill’s withdrawal will be published the Business Bulletin.
2.153 After the Parliament has agreed to the general principles of a Bill at Stage 1, the Bill is treated as the property of the Parliament as a whole, and can only be withdrawn if the Parliament agrees. This requires the member in charge to move a motion that the Bill be withdrawn. If there is a division on this motion, it is decided by a simple majority of those voting.