Part 5 - Stages of Private Bills

The three-Stage process

5.1         All Private Bills are subject to a three-Stage process. These are––

·         Preliminary Stage – in which the Committee considers and reports on the general principles of the Bill and whether it should proceed as a Private Bill, and gives preliminary consideration to any objections; the Parliament then decides whether the Bill should proceed to the next stage

·         Consideration Stage – in which the Committee gives full consideration to any objections, then considers any amendments lodged

·         Final Stage – in which the Parliament considers any further amendments lodged, and then decides whether to pass the Bill.

5.2         A separate Reconsideration Stage is also possible in certain circumstances.

Preliminary Stage

5.3         This Stage begins once the Bill has been published and a Private Bill Committee established. The Committee’s role is to produce a report (the Preliminary Stage report) on—

·         the general principles of the Bill, and

·         whether the Bill should proceed as a Private Bill.

5.4         In addition, the Committee is required to give preliminary consideration to any objections.

5.5         At its first Preliminary Stage meeting, Committee members first make declarations of interest and of impartiality, and then choose a Convener (and Deputy Convener).  Either at the same meeting or a subsequent one, the Committee then normally decides what approach to take to its Preliminary Stage consideration.  This involves, for example, considering which witnesses to invite, whether to appoint an adviser, how often to meet, and how long completion of the Stage is likely to take.  While this discussion may be taken in private, the outcome is published so that the parties are aware of the likely timescales, and of any deadlines for submitting evidence.

Consideration of general principles

5.6         In considering the general principles of the Bill, the Committee should consider the Bill “in the round” without focusing unduly on points of detail that are more properly a matter for Consideration Stage.  This normally includes taking oral evidence from the promoter, and perhaps from other witnesses (e.g. experts in the subject-matter).  Any written evidence that has been submitted (whether in response to an invitation by the Committee or otherwise) will also be taken into account.  If there are objections to the whole Bill, the Committee may wish to take evidence from some or all of the relevant objectors, to ensure that it has a balanced view of the arguments before reaching a view on the Bill’s general principles.

Consideration of whether the Bill should proceed as a Private Bill

5.7         In considering whether the Bill should proceed as a Private Bill, the Committee must consider, in particular:

·         whether the Bill conforms to the definition of a Private Bill set out in Rule 9A.1.1, and

·         whether the Bill’s accompanying documents conform to Rule 9A.2.3 and are adequate to allow proper scrutiny of the Bill (Rule 9A.8.3).

5.8         On the first of these points, the Committee should consider, for example, whether the Bill involves obtaining for the promoter “particular powers or benefits in excess of or in conflict with the general law”.  A Bill should not proceed as a Private Bill unless a statutory remedy is either the only means of achieving the result sought or the best available in the circumstances; nor should it proceed if the result sought would more appropriately be achieved by means of changes to the general, public law (i.e. by a Public rather than a Private Bill) that would give the same powers or benefits to others in a similar position, without the need to single out the promoter.

5.9         On the second point, the Committee should establish whether each accompanying document meets the requirements set out in Rule 9A.2.3, and does so in a way that is suitable for the intended purpose.  For example, the Committee should consider whether the Explanatory Notes give sufficient information to explain the effect of the provisions of the Bill, and whether the Promoter’s Statement is sufficient to demonstrate that all those persons likely to be affected were properly notified.

5.10      In relation to any “works Bill”, the Committee’s consideration of the adequacy of accompanying documents should include consulting on the Environmental Statement.  This is to ensure that the Parliament complies with case-law on the application of EU legislation on public participation in relation to environmental impact assessments.  The Preliminary Stage report should include a summary of the responses received, together with the Committee’s conclusions, and a link to the responses themselves.

5.11      If the Committee takes the view that the accompanying documents do not meet the requirements of Rule 9A.2.3 and are not adequate to allow for proper scrutiny of the Bill, it may require the promoter to provide supplementary accompanying documents (Rule 9A.8.4).  It is for the Committee to specify what further documents it requires and to set a reasonable timescale within which they must be provided.  Under Rule 9A.8.5, supplementary accompanying documents must satisfy the same requirements of form as apply to the original accompanying documents.  Supplementary accompanying documents are published and distributed on the same basis as the original accompanying documents (Rule 9A.8.6).

Preliminary consideration of objections

5.12      The third main role of the Committee at Preliminary Stage is to give preliminary consideration to any admissible objections lodged.

5.13      Preliminary consideration is limited to the Committee considering whether each objection demonstrates that the objector’s interests are clearly adversely affected by the Bill.  If the Committee considers that the objector’s interests are not clearly adversely affected, it must reject the objection (Rule 9A.8.2).  These decisions are normally made solely on the basis of the information contained in the objections, although the Committee may invite oral or written evidence from an objector before reaching a decision.  If the Committee decides to undertake the preliminary consideration of objections in private, the results of its decision will be published shortly after the meeting, and any objectors whose objections have been rejected will be informed directly by the clerks.  The Committee’s decisions on objections (on the basis of its preliminary consideration) do not require to be endorsed by the Parliament, and only those objections not rejected proceed to Consideration Stage for full consideration.

Preliminary Stage Report

5.14      Once the Committee has completed its detailed consideration of the above three issues, it prepares a Preliminary Stage Report to the Parliament.  The report normally includes a recommendation to the Parliament on whether the general principles of the Bill should be agreed to and whether the Bill should proceed as a Private Bill.  It also sets out the result of the Committee’s preliminary consideration of any objections.

5.15      The report is published on the Committee’s web-page.  The clerks inform the promoter and objectors when the report is published, and copies are sent to the same premises to which copies of the Bill and accompanying documents were sent on introduction.

Preliminary Stage debate

5.16      After the Preliminary Stage Report has been published, it is for the Parliament to debate and decide on the general principles of the Bill and whether it should proceed as a Private Bill.  The date and time for this Preliminary Stage debate are advertised in the Business Bulletin at least a week in advance.

5.17      The Preliminary Stage debate takes place on a motion, lodged in the name of the convener of the Private Bill Committee, reflecting the recommendations of the Preliminary Stage Report.

5.18      The normal motion is “That the Parliament agrees to the general principles of the [short title] Bill and that the Bill should proceed as a Private Bill”.  If such a motion is agreed to by the Parliament (whether on a division or otherwise), the Bill proceeds to Consideration Stage.  If such a motion is not agreed to, the Bill falls (Rule 9A.8.10).

5.19      Alternative forms of motion may be used where the Private Bill Committee did not recommend that the general principles be agreed to or did not recommend that the Bill should proceed as a Private Bill (or both).  If any such motion is agreed to (whether on a division or otherwise), the Bill falls – unless the motion has first been amended so as to convert it into the normal motion (agreeing the general principles and that the Bill should proceed as a Private Bill).  Any MSP may lodge such an amendment, which is subject (like all amendments to motions) to selection by the Presiding Officer (Rule 8.5.6).

5.20      Similarly, where it is the normal motion (see para 5.18) that is lodged, any MSP may lodge an amendment to that motion.  Such an amendment may be selectable if, while expressing reservations about the Bill, the amended motion would continue to make clear that the Bill should proceed to Consideration Stage.  However, an amendment to reverse the motion (for example, making clear that the Bill should not proceed to Consideration Stage for a reason specified in the amendment) would not normally be selected by the Presiding Officer, as rejection of the amended motion could cast doubt on whether the Bill was still in progress.

5.21      All MSPs may participate in the Preliminary Stage debate.  The debate is opened and closed by the Convener (or Deputy Convener), speaking on behalf of the Committee.  Other members who speak may do so as party spokespersons, on the basis of a constituency or regional interest (which should be declared), or in their capacity as members of the Private Bill Committee.  A Minister may speak on behalf of the Scottish Government.  

5.22      Any member may, before the Preliminary Stage decision is taken, move that the Bill be referred back to the Private Bill Committee for a further report on the general principles of the Bill, or on whether the Bill should proceed as a Private Bill.  Such a motion should normally be lodged in advance and (if selected by the Presiding Officer) taken before the Preliminary Stage debate.  If the motion is agreed to, the Bill returns to the Private Bill Committee for a further report, and the Preliminary Stage debate is adjourned until that has happened (Rule 9A.8.9).

Crown consent

5.23      If a fundamental purpose of the Bill requires Crown consent (see paragraph 2.71 above), this is signified by the relevant Scottish Government Minister at the beginning of the Preliminary Stage debate. (If Crown consent is required only in respect of minor or subsidiary provisions of the Bill, it may be signified at Final Stage.)

Consideration Stage

5.24      Unless the Bill is rejected at Preliminary Stage, it proceeds to Consideration Stage, which is taken by the Private Bill Committee (Rule 9A.9.1).

5.25      The overall purpose of Consideration Stage is to consider the detail of the Bill.  If there are no objections – either because no admissible objections were lodged, or because any admissible objections were rejected at Preliminary Stage – then Consideration Stage normally consists only of an opportunity to consider amendments (like Stage 2 of a Public Bill).  However, if there are objections, these must be considered first, before any consideration of amendments begins.  In these circumstances, the Stage falls into two distinct phases, distinguished by the style of proceedings – the Committee first meets in a quasi-judicial capacity to hear evidence from the promoter and objectors, and then meets in a legislative capacity to consider and dispose of any amendments.

Consideration of objections – principles

5.26      Consideration Stage is the main opportunity for objectors to explain their grounds for objection, and for the promoter to respond.  The role of the Private Bill Committee is to facilitate agreement or compromise where possible, and otherwise to act as arbiter between the parties.  Therefore, before it reaches a decision on the merits of objections, the Committee must ensure that each party has had a fair opportunity to present its own case and question the opposing case.  This may involve the leading of evidence and the cross-examination of witnesses and their evidence.  It is open to the promoter, at any point in the process, to resolve specific issues by direct negotiation with relevant objectors, thus reducing the number of issues that need to be considered and decided upon by the Committee.  

Invitations to give evidence

5.27      Where there are objections to consider at Consideration Stage, the Committee must first decide from whom to invite evidence, and whether to invite oral evidence, written evidence or both.

5.28      The Committee has only limited discretion about whom to invite.  Under Rule 9A.9.3(a), it must invite the promoter.  With objectors, the Committee should first group objections that it considers to be the same or similar and then select one or more objectors to give evidence on behalf of each group (Rules 9A.9.3(b) and 4).  It must also invite each objector whose objection has not been grouped – unless the Committee takes the view that the objector’s interests are no longer adversely affected by the Private Bill, for example because of a relevant change in the objector’s circumstances since Preliminary Stage (Rule 9A.9.3(c)).

5.29      For the purpose of grouping, objections will normally be treated as similar only if they give similar reasons in opposition to similar aspects of the Bill, or are objecting on the basis of having similar interests (e.g. by reference to where they live).  This ensures that all legitimate arguments are considered, while avoiding unnecessary repetition.

5.30      While the grouping of objections and the selection of objectors to represent those groups is a matter for the Committee, it is normal practice to allow objectors to comment on what is proposed before decisions are finalised.  The Committee may, for example, make provisional decisions (on the basis of advice from the clerks) and then allow a period of (say) a couple of weeks for feedback from objectors.  This allows objectors to say whether they are content with the group they are in and with the person nominated as lead objector for that group. 

5.31      Invitations are normally to give both oral and written evidence.  A Private Bill Committee is only likely to limit the evidence invited to written evidence where the issues at stake are relatively minor and uncontroversial.  Where oral evidence is to be taken, the parties invited to attend a particular meeting are normally given the opportunity to submit written evidence in advance of that meeting.  Where the promoter is invited to give oral evidence, it may choose to be represented in person (by an office-holder or employee, if the promoter is a body or organisation) and/or by an agent (e.g. solicitor or advocate).

Role of lead objectors

5.32      For practical reasons, it is likely that a single “lead objector” will be nominated for each group.  The main role of the lead objector is to coordinate the evidence given on behalf of the group, and to act as a contact-point for the group in relation to practical arrangements.  If the lead objector does not wish to give all the oral evidence himself or herself, he or she may nominate other objectors from within the group to speak on particular topics (e.g. because of relevant expertise).  The lead objector is also responsible for submitting any written evidence on behalf of the group.  It is for the lead objector to satisfy him/herself that any evidence (whether oral or written) given on behalf of a group represents the views of the group as a whole. 

5.33      In carrying out their role, lead objectors should ensure that the evidence that is given, whether orally or in writing, on behalf of the group relates to the grounds of objection set out in the group’s original objections.  New material can be included that is relevant to these grounds of objection (e.g. to expand on or update the original points made), but new grounds of objection cannot normally be added at this stage. 

5.34      As well as nominating other objectors within the group to give evidence on specific topics, lead objectors may also request that third parties (i.e. people who are not objectors themselves) be invited to give evidence on behalf of the group.  A third party may be suggested, for example, because he or she has relevant experience or expertise not available within the group.  Another option is that the group may wish to have their case presented by a solicitor or advocate. 

5.35      Committees will normally agree to invite as witnesses any additional objectors or third parties nominated by the lead objector (although it may sometimes be necessary to set an upper limit on the number of witnesses invited on behalf of a group).  Where third parties are invited, they are eligible for travel expenses on the same basis as other witnesses, but it would be for the objectors in the group to meet any professional fees they may charge for their attendance.

5.36      If an assessor has been appointed, his or her role will normally include making recommendations to the Committee about the grouping of objections, the choice of objectors to give evidence on behalf of each group, and whether evidence should be given orally or in writing.  The final decision on these matters rests with the Committee, but would be informed by the assessor’s recommendations.

Timetabling of meetings

5.37      Once the groupings and lead objectors have been finalised, a timetable for the consideration of objections is drawn up.  The aim of this is to give the promoter and the objectors reasonable notice of when oral evidence from each group (or individual objection, if not grouped) will be taken.  The clerks consult the parties about their availability in the preparation of the timetable so that their preferences can be accommodated as far as practicable.

5.38      The deadline for the submission of any written evidence on behalf of a group (or individual objection, if the objection has not been grouped) is usually a week before the meeting at which oral evidence is to be taken, so that submissions can be circulated to Committee members and to the promoter in advance.  The same deadline normally applies to any written evidence by the promoter.

5.39      A similar deadline is likely to be set for the parties to finalise who is to appear on their behalf.  For each group, this will normally include the lead objector and may include other objectors from within the group and any third-party witnesses the Committee has agreed to invite.  For the promoter, this will normally include a lead spokesperson, other representatives of the promoter, and any third-party witnesses the Committee has agreed to invite.  The clerks will need the full names and designations (e.g. job titles) of all those who wish to give oral evidence, together with an indication of the topics they are likely to cover and the time they consider is likely to be required for their evidence.  (It is, however, for the Convener rather than the parties to make final decisions on the time available for oral evidence.)

Written evidence

5.40      Written evidence should, so far as possible, be concise and non-technical.  It is greatly appreciated if it is submitted electronically so it can easily be re-formatted for circulation and publication on the Committee’s web-pages.  If there is any reason why evidence should not be published in full (e.g. for reasons of commercial sensitivity), this should be discussed in advance with the clerks. The clerks may also query evidence that appears to contain personal data (particularly sensitive personal data) or to include defamatory statements, and may require that material to be amended, or redact it, before the evidence is published.

Structure of oral evidence-taking

5.41      It is for the convener of the Committee to call witnesses to speak and to determine the overall order of proceedings.  In relation to each group of objections (or individual objection, if not grouped), normal practice is to give each “side” (i.e. the objectors, or the promoter) an opportunity to set out their arguments – including by calling any third-party witnesses – and then to give the other side an opportunity to test these arguments through cross-examination.  Both sides may also be questioned by Committee members.  At the end, each side has an opportunity to sum up and make any final points. 

5.42      Where a number of groups have similar grounds of objection, the parties to later groups are encouraged to rely on evidence already given to the Committee, rather than repeating it.  The Committee also has the option of amalgamating the proceedings on two or more groups, for example to allow relevant third-party witnesses to be cross-examined by objectors from more than one group.

Committee decisions on objections

5.43      Once evidence-taking is completed, it is for the Committee to reach a decision on the merits of each objection in the light of the evidence that relates to it (Rule 9A.9.4A).  Each objection may be accepted (in whole or in part) or rejected.  Acceptance in part may involve, for example, the Committee recommending additional measures that the promoter could take to offset the adverse impact on objectors.  Where the Committee accepts (in full) an objection to the whole Bill, this may (depending on the circumstances) lead it to recommend rejection of the Bill by the Parliament at Final Stage.

5.44      It is for the Committee to decide how to make its decisions on objections known.  Should it wish to explain and give context to the decisions, it may wish to agree a “Consideration Stage report” – in which case, the decisions would be made as part of the process of agreeing the report, and made known by its publication.  If a report is not considered necessary, then the minutes of the meeting at which the final decisions on objections are made provide the means for making the decisions known.

5.45      Where a Consideration Stage report is published, copies are distributed to the premises at which the Bill and accompanying documents were distributed on introduction.  The report is also published on the Committee’s web-pages.

Assessor hearings and report

5.46      Where evidence is given to an assessor, rather than directly to the Committee, it is for the assessor to determine the order in which the parties give evidence and generally to manage the proceedings.  However, the approach taken is likely to be similar to that outlined above in relation to evidence-taking by the Committee.  (See also paragraph 4.31.)

5.47      Once assessor hearings have concluded, the assessor prepares a report to the Committee with recommendations as to which objections should be upheld (in whole or in part) and which rejected.  This report is then circulated to the Committee for consideration, usually in private.  The Committee may accept the report (in whole or in part) or reject it.  The Committee may also take such other steps as it thinks fit – including referring further matters to the assessor to consider, or taking further evidence itself (Rule 9A.9.4B). 

5.48      As in the normal case (where there is no assessor) the final decisions on objections rest with the Committee (rather than with the assessor, or with the Parliament), and it is for the Committee to decide whether to publish a Consideration Stage report to explain its decisions.  The Committee might, for example, decide to prepare such a report in order to explain any decision it had taken to depart substantially from a recommendation of the assessor.  In that event, the assessor’s report is published as an annexe to the Committee’s report.  If there is no Committee report, the assessor’s report is published on the Committee’s web-pages to allow objectors and others to understand the detailed consideration that informed the Committee’s decisions.

Consideration Stage amendments

5.49      Once the first phase of Consideration Stage – including consideration of the merits of objections – has been completed, Consideration Stage amendments to the Bill may be lodged.

5.50      If there were no objections which required to be given full consideration, but there were late objections which needed to be given preliminary consideration at the beginning of Consideration Stage, amendments may be lodged from when that preliminary consideration was completed.  Where no admissible objections were lodged, or any such objections were rejected at Preliminary Stage, amendments may be lodged as soon as Preliminary Stage is completed (Rule 9A.9.7).

5.51      There must be an interval of at least five sitting days between the day on which amendments can first be lodged and the day on which the Private Bill Committee begins formal proceedings on amendments (Rule 9A.9.7A).[1]  The deadline for lodging Consideration Stage amendments is 2 sitting days before consideration of the amendments is due to begin (Rule 9A.12.2).

5.52      Only members of the Private Bill Committee may lodge amendments to the Bill at Consideration Stage.  The promoter cannot lodge amendments, but may wish to invite a Committee member to do so on its behalf – either to give effect to Committee recommendations, or for other reasons (e.g. to reflect the outcome of direct negotiations held with objectors, or because it has identified separately improvements to the Bill it wishes to make).  In any such case, the clerks should be informed when the amendment is lodged, so it can be published as being “on behalf of the promoter”.

5.53      Amendments are lodged with the clerks in the Parliament’s Legislation Team (not with the Committee clerks) and, if admissible, printed in the Business Bulletin. Before the first meeting of the Committee at which amendments are considered, a Marshalled List, showing all the admissible amendments lodged, in the order in which they will be considered, is prepared. The Convener may group amendments for debate, and a groupings list is also published in advance of the proceedings.  (See Part 6 for more details.)

Order of consideration

5.54      Under Rule 9A.9.6, the Private Bill Committee may decide the order in which the sections and schedules of the Bill are to be taken.  If it does not, the default order prescribed by the Rule is to take the sections in the order they appear in the Bill and each schedule immediately after the section that introduces it.  The promoter will be consulted on any proposal to depart from the default order, and if the promoter wishes to propose a different order, it should contact the clerks well in advance.  The last opportunity for deciding any non-default order of consideration is the Committee’s last meeting before that on which consideration of amendments begins.

Amendments adversely affecting private interests

5.55      The Private Bill Committee’s consideration of amendments begins with it deciding whether any of the amendments would adversely affect private interests – that is, whether the amendment would result in the Bill having an adverse effect on a private interest that is distinct from (or goes beyond) any adverse effect of the Bill as introduced (Rule 9A.9.7B).

5.56      Where the Committee considers that there are amendments that adversely affect private interests, it must then consider whether they pass the “merits test” – i.e. whether the amendments have (in the Committee’s opinion) “sufficient merit that there is a possibility of their being agreed to after further scrutiny” (Rule 9A.9.7C).  If any amendment (which the Committee considers affects private interests) fails this test, then it may not be moved (Rule 9A.9.7D) – and such an amendment does not appear in the Marshalled List (Rule 9A.12.8(a)). But if any amendment passes this test, none of the amendments (whether or not affecting private interests) may be moved until the tasks outlined below (paragraph 5.58) have been completed (Rule 9A.9.7E). 

5.57      The purpose of this two-step screening process is to ensure that amendments are not decided upon until those whose private interests would be adversely affected have been given an opportunity to comment – and to do so in a way that minimises the impact on the timescale for the Bill’s passage.  By screening all the amendments together, the process ensures that where Consideration Stage proceedings need to be put on hold to allow the holders of private interests to be consulted, this need be done only once.  And the merit test aims to ensure the proceedings are not put on hold at all if the only amendments that adversely affect private interests are unlikely to be agreed to anyway (for reasons unrelated to any adverse impact on private interests they may have).[2]

5.58      Where the Committee has decided that there is at least one amendment that adversely affects private interests and that passes the merits test, the tasks that must be performed (in relation to each such amendment) are:

·         notifying the holders of the affected private interests of the terms of the amendment and its implications, and of how they may lodge an objection

·         where admissible objections are lodged, taking evidence on those objections

·         where such evidence is taken, considering that evidence and reaching conclusions (Rule 9A.9.7H).

5.59      Where the relevant amendments have been, or are to be, lodged on behalf of the promoter, it is for the promoter to carry out the first task (notification) (Rule 9A.9.7F).  This may be done in advance of Consideration Stage if the need for the amendment is identified early – in which case, the promoter (or agent) should consult the clerks about the process of notification to be followed.  Otherwise, it is for the Committee either to carry out these tasks itself or to instruct an assessor (where one has been appointed) to do so.  If the promoter or an assessor is to carry out a task, the Committee may direct how this is to be done – for example, by deciding on an appropriate period for the lodging of objections (which need not be the same 60-day period allowed for lodging objections to the Bill after introduction) (Rule 9A.9.7G). 

5.60      Where objections to amendments are lodged, they are subject to most of the same Rules as objections to the Bill (as described in Part 3), but with a number of variations (set out in Rule 9A.9.7J to 7N).  Accordingly:

·      Objections may be lodged by an individual, body corporate or unincorporated association during whatever period for lodging objections has been specified (by the Committee or assessor).

·      Objections may be lodged in writing or by e-mail (but e-mailed objections must be followed up in writing within 7 days).

·      To be admissible, the objection must be in proper form; set out the nature of the objection; specify how the objector’s interests would be adversely affected by the amendment; and be accompanied by any fee determined by the SPCB (currently set at zero).[3]

·      A list of objectors’ names need not be published in the Business Bulletin (but is provided instead in committee papers).

·      Objections that are lodged after the deadline but before the Committee’s first meeting to consider amendments may be given consideration if they are accompanied by a statement to explain the delay and the Committee is satisfied that (a) the objector had good reasons for lodging after the deadline, (b) the objection was lodged as soon as reasonably practicable after the deadline, and (c) consideration of the objection would not be unreasonable having regard to the rights and interests of objectors and the promoter.

·      Objections may be withdrawn by the objector.

5.61      Objections to amendments (unlike objections to Bills) are not subject to any process of preliminary consideration by the Committee. Instead, the Committee (or an assessor) proceeds immediately to invite evidence on the objections – which may be written evidence, oral evidence or both – from objectors and the promoter.  The Committee (whether or not on the basis of a recommendation by an assessor) may group objections that it considers to be the same or similar and appoint lead objectors to give evidence on behalf of each group.  Timetabling, the handling of written evidence and the structure of oral evidence-taking may be conducted on a similar basis as would be the case for objections to the Bill, or a simplified approach may be adopted. 

5.62      The Committee is then required to consider the merits of objections in the light of the evidence (or assessor’s report) and has the power to accept or reject, in whole or in part, any objection (or assessor’s report).  In practice, it is likely that the decisions made on amendments will constitute the Committee’s final decision on some of the objections lodged to those amendments.

Proceedings on amendments

5.63      The procedures governing the formal consideration of amendments, by which they are moved, debated and disposed of, are explained in more detail in Part 6.  Committees may take evidence on amendments before these formal proceedings begin, although this is unusual in practice (other than in the circumstances described above, where evidence is taken on amendments adversely affecting private interests).  As well as considering any amendments, the Committee must consider and agree each section and schedule of the Bill, and the long title (Rule 9A.9.5). 

Recording decisions on amendments

5.64      Decisions on amendments are recorded in the Committee’s minutes, and in the Official Report of the proceedings.  A Committee report is not normally prepared, but this would be an option if, for example, the Committee wished to draw the Parliament’s attention to provisions of the Bill where, although it could not agree on any particular amendments, it agreed that some amendment is required.

The Bill as amended

5.65      If any amendment (however small) is agreed to, the Bill is re-published in amended form (Rule 9A.9.10).  If substantial amendments are made (particularly the insertion of new sections or schedules) the promoter should consider providing revised or supplementary Explanatory Notes (or other accompanying documents).  The publication of the amended Bill is recorded in the Business Bulletin.  Copies of any amended Bill and any revised or supplementary Explanatory Notes are sent to the premises to which the original Bill and accompanying documents were sent on introduction.

Final Stage

5.66      Final Stage takes place at a meeting of the Parliament (Rule 9A.10.1). If the Bill has been amended at Consideration Stage, there must be at least 14 sitting days between the last day at that Stage and the day on which Final Stage takes place (or begins) (Rule 9A.7.3A).  If the Bill has not been amended, the minimum interval is nine sitting days.  The business programme containing the date (or dates) for Final Stage is agreed by the Parliament (on a motion of the Parliamentary Bureau) and advertised in the Business Bulletin.

Final Stage motion

5.67      In advance of Final Stage, the convener of the Committee must lodge a motion on which the Parliament will decide whether to pass the Bill.  The normal form of this motion is “That the Parliament agrees that the [short title] Bill be passed”.  But alternative motions may be lodged in certain circumstances – for example, if evidence from whole-Bill objectors at Consideration Stage persuaded the Committee to recommend rejection of the Bill at Final Stage.  Whichever form of motion is lodged, other MSPs may lodge amendments to it, and any such amendments are subject to selection by the Presiding Officer.  As at Preliminary Stage (see paragraph 5.20 above), amendments will not normally be selected if rejection of the amended motion would leave it unclear whether or not the Bill had been passed.

Amendments at Final Stage

5.68      Amendments for Final Stage may be lodged as soon as Consideration Stage is completed (Rule 9A.10.3).  The deadline for lodging amendments is eight sitting days before Final Stage is due to begin (Rule 9A.12.2A).  Where the Bill was amended at Consideration Stage, Final Stage amendments must relate to the “as amended” version of the Bill.  

5.69      Any MSP (whether or not a member of the Private Bill Committee) may lodge amendments at Final Stage.  Amendments are lodged with the Legislation Team clerks and, if admissible, are published in the Business Bulletin.  As at Consideration Stage, where amendments are lodged on behalf of the promoter, this will be made clear when they are published.

Order of consideration

5.70      Rule 9A.10.5 requires amendments at Final Stage to be taken by reference to the order in which the sections and schedules arise in the Bill, unless the Parliament agrees (on a motion by the Parliamentary Bureau) a different order.  If the promoter takes the view that Final Stage consideration should follow any order other than that laid down by the Rule, it may suggest that order to the clerks.  It is unlikely to be possible for the Parliament to agree any such order less than a week before Final Stage begins.

Selection and grouping of amendments

5.71      At Final Stage, the Presiding Officer selects which of the admissible amendments are to be taken (Rule 9A.10.4).  Only the selected amendments appear in the Marshalled List.

5.72      Any amendment that would adversely affect private interests (as described in paragraph 5.55 above) is unlikely to be selected, since this would make it necessary to delay the Final Stage proceedings on amendments to allow time for the holders of those interests to be notified and given an opportunity to make representations.  Accordingly, where the Presiding Officer is inclined to select such an amendment (for example, because it has been lodged on behalf of the promoter), he or she would first have to consult members of the Parliamentary Bureau on the timetabling implications.  It would then be for the Parliament to decide (on the Bureau’s recommendation) whether to defer the Final Stage proceedings on amendments in order to facilitate the Presiding Officer’s selection of the amendment.  It is likely that the Final Stage proceedings would need to be deferred by at least a few weeks in order to allow the holders of the adversely-affected private interests to be notified and given a reasonable opportunity to make representations.  In some circumstances, it may be considered appropriate to give the Private Bill Committee a role in considering any representations made and reporting on them to the Parliament in advance of the deferred Final Stage proceedings.

5.73      As at Consideration Stage, amendments may be grouped for debate, and a separate groupings list is published in advance of the proceedings.

Proceedings on amendments

5.74      Final Stage proceedings on amendments are similar to those at Consideration Stage, except that all MSPs may move and vote on amendments, and there is no requirement to agree to each section and schedule.  (For further details, see Part 6.)

Statement on protected subject-matter

5.75      After any amendments have been disposed of, the Presiding Officer is required to make a statement on whether or not any provision of the Bill relates to a “protected subject-matter” within the meaning of section 31(4) of the Scotland Act 1998 (Rule 9A.10.5A).  This is part of a procedure to ensure that any Bill that alters key aspects of how the Parliament is elected can only be passed with a two-thirds majority.[4]  While it is no doubt unlikely that this would apply in the case of a Private Bill, a statement is required for such a Bill just as it is for a Public Bill.

Adjournment to a later day

5.76      Immediately after the Presiding Officer’s statement on protected subject-matter has been made, the convener of the Committee may move, “That remaining Final Stage proceedings on the [short title] Bill be adjourned to [date]/a later day” (the motion may, but need not, name a day).  This motion may be moved without notice and cannot be amended or debated, and (under Rule 11.3.1), the question is put on it straight away.  

5.77      If the motion is agreed to, no further proceedings take place on the Bill until the day named in the motion (or until the Parliament has appointed a “later day”).  In the interim, the convener of the Committee may lodge further amendments, but only for the purpose of “clarifying uncertainties” or “giving effect to commitments given on behalf of the promoter at the earlier proceedings at Final Stage” (Rule 9A.10.5).

5.78      The same opportunity to lodge such further amendments applies in a case where the debate on whether to pass the Bill was scheduled for a later day from the outset.   

Referral back for further Consideration Stage consideration

5.79      Adjourning Final Stage consideration is one mechanism available to allow further changes to be made to a Bill before a decision is made whether to pass it – but it is suitable only where the changes required fit within the relatively narrow confines referred to above.  Where more substantial changes are required, the Convener of the Private Bill Committee may (at the beginning of the debate on the motion to pass the Bill) move “That [specified provisions] of the [short title] Bill be re-committed for further Consideration Stage consideration”, under Rule 9A.10.6.

5.80      If such a motion is agreed to, the Bureau refers the Bill (or the provisions mentioned in the motion) back to the Private Bill Committee.  At least nine sitting days must elapse between the decision to refer the Bill back and the beginning of the further Consideration Stage proceedings on amendments (Rule 9A.7.3B(a)).  Those proceedings consist, in particular, of a further opportunity for amendments to be lodged and debated – subject to the same rules (e.g. on lodging deadlines) as applied to the original Consideration Stage proceedings.  As in those original proceedings, the Committee must carry out a two-stage screening process on the admissible amendments lodged so that, if any of them adversely affects private interests and passes the “merits test”, the holders of those interests are given an opportunity to comment before decisions on the amendments are made (see paragraphs 5.55 to 5.62 above).  Even where this does not apply, the Committee has the option, if it chooses, of inviting further evidence (e.g. from the promoter and objectors) on any amendments lodged, before they are disposed of.

5.81      If the Bill is amended during the further Consideration Stage proceedings, it is re-published as amended and a further nine sitting days must elapse between the day those proceedings end and the day on which Final Stage resumes (Rule 9A.7.3B(b)).  (If the Bill is not amended, no such minimum interval applies.)  In either case, Final Stage 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 9A.10.6).

Debate and decision on whether the Bill be passed

5.82      After proceedings on amendments at Final Stage are concluded (including any adjourned proceedings under Rule 9A.10.5, and any further Final Stage proceedings after re-commitment), the Parliament must decide (by voting on the motion lodged in advance by the convener of the Committee) whether to pass the Bill.  The debate is opened, and closed, by the Convener (or Deputy Convener) of the Private Bill Committee.  Other members who speak may do so as party spokespersons, on the basis of a constituency or regional interest (which should be declared), or in their capacity as members of the Private Bill Committee.

5.83      If the motion is “that the [short title] Bill be passed”, agreement to the motion passes the Bill (with the proviso that at least 33 MSPs take part in the voting – otherwise the Bill is treated as rejected) (Rule 9A.10.9).[5]  If the motion is to reject the Bill, but an amendment to reverse the terms of the motion is first agreed to, agreement to the amended motion also passes the Bill (subject to the same proviso).  Otherwise, the Bill falls.

Crown consent

5.84      If the Bill requires Crown consent (see paragraph 2.71) and this was not signified at Preliminary Stage (or if relevant provision has since been inserted by amendment), it is signified during the Final Stage debate by a member of the Scottish Government (Rule 9A.13).

“As Passed” version

5.85      If a Bill that is passed was amended at Final Stage, a new version is published to show the Final Stage amendments.  If it was not amended at Final Stage, the previous version of the Bill serves the purpose of showing the Bill in the form in which it was passed.  Copies of the revised Bill are sent to the premises to which the original Bill and accompanying documents were sent on introduction.

Reconsideration Stage

Powers of Law Officers and Secretary of State

5.86      Section 32 of the Scotland Act 1998 provides that a Bill, once passed, may normally be submitted for Royal Assent by the Presiding Officer only 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 (on protected subject-matter grounds) or 33 (on legislative competence grounds), and may also be blocked by an order of the Secretary of State under section 35 (on various grounds, including defence and national security).  The Bill may, however, be submitted for Royal Assent after less than four weeks if all three Law Officers and the Secretary of State notify the Presiding Officer that they do not intend to exercise those powers.

5.87      A challenge from one of the Law Officers takes the form of a reference to the UK Supreme Court.  Once such a reference has been made, the Presiding Officer cannot submit the Bill for 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

5.88      Where the Supreme Court refers to the ECJ a question arising from the case brought by the Law Officer, proceedings on that case are put on hold pending the ECJ judgement.  Since it can take a substantial period for the ECJ 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 Court has in turn made a reference to the ECJ.  For a Private Bill, this is effected by a motion under Rule 9A.11.1, “That the Parliament resolves that it wishes to reconsider the [short title] Bill”.  Any member may move such a motion, but only if neither the reference to the Supreme Court nor the Court’s reference to the ECJ has been decided or otherwise disposed of.  If the motion is agreed to, the Presiding Officer informs the Law Officers and the one who made the original challenge must then (under section 34(2)) request withdrawal of the reference to the Supreme Court.  Reconsideration Stage may not take place until the withdrawal of the Supreme Court reference has been formally confirmed.

5.89      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 Court decides that any provision of the Bill would be outwith legislative competence, if a section 35 order (see paragraph 5.70) is made, or if the Court reverses the decision of the Presiding Officer on whether any provision of the Bill relates to a protected subject-matter, any member may move “That the Parliament resolves to reconsider the [short title] Bill” (Rules 9A.11.2, 9A.11ZA.1).  If such a motion is agreed to, the Bureau allocates a time for Reconsideration Stage on the Bill at a meeting of the Parliament.

Amendments at Reconsideration Stage

5.90      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 as to resolve the problem which led to the reference or order being made (Rule 9A.11.4).  So only amendments aimed at resolving that problem are admissible.  As at Final Stage, 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 9A.11.4).  There is no selection of amendments at Reconsideration Stage, so all admissible amendments lodged must be taken.

5.91      Where Reconsideration Stage is held following a reference under section 32A (on protected subject-matter grounds), the purpose of Reconsideration Stage is to take a fresh decision whether to pass or reject it, subject to the correct majority threshold.  In these circumstances, the Bill may not be amended at Reconsideration Stage (Rules 9A.11.4, 9A.11ZA.2).

Proceedings at Reconsideration Stage

5.92      The above differences aside, proceedings at Reconsideration Stage are similar to those at Final Stage.  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 5.75 above).  The decision whether to approve the Bill must then be taken by division (subject, as at Final Stage, to the requirement that at least 33 MSPs take part in the voting).[6]

5.93      A Bill approved at 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 the Parliament may approve a Bill, or those persons may exercise their rights under the Scotland Act 1998 in relation to it.

Crown consent

5.94      If the Bill has been amended at Reconsideration Stage to include provisions requiring Crown consent, that consent is signified during the debate on whether to approve the Bill.

Financial resolution

5.95      Where a Bill contains particular provisions affecting payments into or out of the Scottish Consolidated Fund, it cannot proceed beyond Preliminary Stage unless the Parliament has, by resolution, agreed to the relevant provisions. That resolution is known as a “financial resolution” and the rules governing such resolutions are set out in Rule 9A.14.  In particular, only a Scottish Government minister may lodge and move a motion for a financial resolution. (For further details, see Annex P.)

Carry-over of Private Bills

5.96      As with Public Bills, a Private Bill introduced in any session of the Parliament falls if a decision whether or not to pass it has not been taken by the Parliament before the end of that session (Rule 9A.7.5).[7]  However, unlike Public Bills, Private Bills that fall in these circumstances may be “carried over” to the following session.

5.97      Under Rule 9A.7.6, where a Bill falls at the end of one session, the promoter may introduce a Bill in the same terms in the next session of the Parliament.  If the original Bill had already completed Consideration Stage and had been re-published as amended,  introducing a Bill “in the same terms” in the second session means the Bill must be in the same terms as that amended Bill.  The promoter is not required to provide new accompanying documents under Rule 9A.2.3 (other than the two statements on legislative competence) when the new Bill is introduced.  Instead, the accompanying documents used for the Bill in the first session are used for the Bill in the second session. 

5.98      Any objections to the original Bill lodged during the earlier session are treated as objections in the later session to the new Bill, and any decision by the earlier Private Bill Committee to reject certain objections at Preliminary Stage applies in relation to the new Bill (Rule 9A.7.8).

5.99      If, on the day the Parliament is dissolved, the original Bill had not completed a particular Stage, then proceedings on the new Bill must normally commence at the beginning of that Stage.  However, the new Bill may commence at a later point in that Stage (up to the point that the original Bill had reached) subject to two conditions (Rule 9A.7.11).  First, if the Private Bill Committee had taken oral evidence on the original Bill at the Stage in question, then everyone who gave that evidence must either give it again orally to the new Private Bill Committee, or agree that the new Committee members can instead view a recording or read the Official Report of the earlier proceedings.  Second, the promoter, any lead objectors that had been chosen by the original Committee to represent groups of objections, and any objectors whose objections had not been grouped must agree (to the new Bill picking up part-way through the Stage).  Securing agreement in this way may be useful to avoid the repetition of evidence taken during the earlier session.  However, the Committee established in the new session may prefer to begin evidence-taking again if its membership is substantially different from that of the original Committee or if the amount of evidence to be re-heard is not substantial.  (If an assessor was appointed in the earlier session, but had not reported on the objections by the end of the session, then it is for the Committee established in the new session to consider the assessor’s report (Rule 9A.7.12).)

5.100   It should be noted, however, that this Rule does not permit the new Bill to commence its progress part-way through proceedings on amendments (at either Consideration Stage or Final Stage).  This is because amendments that had been lodged to the original Bill are not carried over to the new session.  What is more, decisions taken by the Committee (or the Parliament) to agree to amendments during a Stage not completed during the earlier session have no effect after the dissolution.  As a result, it is necessary for the new Bill to begin the relevant proceedings on amendments afresh in the new session to allow the same or similar amendments to be made to the new Bill.

5.101   The option of introducing a new Bill in the second session to take advantage of the above procedures (which minimise the extent to which the dissolution of the Parliament requires repetition and delay in scrutiny of the Bill) is only available until the 30th day after the session begins (Rule 9A.7.9).  Any new Bill introduced later than that is treated as an entirely new (rather than a carried-over) Bill, to which all the normal Rules (including for accompanying documents, an objection period, and 3-stage scrutiny) apply.

Withdrawal of Private Bills

5.102   A Private Bill may be withdrawn at any time by the promoter (Rule 9A.15).  The consent of the Private Bill Committee or the Parliament as a whole is not required.  A Bill is withdrawn by the promoter writing to the clerks, who will notify the Committee and include notice of the withdrawal in the Business Bulletin.  The fee for introducing the Bill is not normally refunded on withdrawal, and the promoter remains liable to pay any outstanding costs.

5.103   Where a Bill is withdrawn, another Bill in the same or similar terms may not be introduced by the same promoter within a period of six months from the date on which the original Bill was withdrawn.

Change of promoter

5.104   The identity or status of a promoter may change during the passage of a Bill as a result, for example, of the death of an individual, the merger or bankruptcy of a company, or a legislative change affecting the identity of a statutory body.  In many cases, the general rights and liabilities of the promoter will transfer to its successor by operation of law.

5.105   Rule 9A.11A applies where the promoter who introduced the Bill is no longer able, or no longer wishes, to obtain the powers or benefits that it is the purpose of the Bill to confer, but where there is another person or body who can (and wishes to) become the beneficiary of those powers or benefits.  The latter (“the new promoter”) must lodge a memorandum explaining the circumstances and giving reasons for there being a change of promoter (Rule 9A.11A.2).  The memorandum is referred to the Private Bill Committee to consider the implications for the rights and interests of objectors and for the progress of the Bill (Rule 9A.11A.3).

5.106   If the Committee is satisfied that a change of promoter would not compromise the proper scrutiny of the Bill, or the rights and interests of the objectors, it can allow the Bill to proceed, although it may require the promoter to provide additional accompanying documents, or give additional undertakings, and it may require Preliminary or Consideration Stage to begin again (Rule 9A.11A.4).

5.107   If, the Committee is not satisfied, it may report to the Parliament on the implications of a change of promoter, with a recommendation that the Bill should not proceed with the new promoter.  Such a report is then debated by the Parliament, on a motion of the Committee convener.  If the motion is agreed to, the Bill falls; otherwise, the Committee is required to continue with its consideration of the Bill.

Royal Assent and after

From Bill to Act

5.108   If a Private Bill that has been passed (or approved after Reconsideration Stage) is not subject to legal challenge (or further legal challenge) during the statutory four-week period, or if all three law officers and the Secretary of State confirm (during that period) that they will not challenge the Bill, then as soon as that period has ended, the Presiding Officer presents the Bill for Royal Assent.

5.109   The Bill becomes an Act on the day that Royal Assent is formally recorded (by the Keeper of the Registers of Scotland).  This date is included on the first page of the Act when it is published.  Acts of the Scottish Parliament are published online as part of the wider UK “statute book”.[8]

5.110   The Act is textually identical to the final version of the Bill, but with all numbering corrected and any necessary “printing points” taken in.  Printing points are non-substantial corrections (i.e. corrections that do not affect the legal effect of the Bill).  For example, changes may be made to section and schedule titles to ensure they continue accurately to describe the relevant sections and schedules.  Numbering (including in cross-references) and punctuation are also corrected in consequence of amendments made.  The promoter may ask for printing points to be made before the Bill is submitted for Royal Assent, but these will be refused by the clerks if they involve substantive changes that should have been made by amendment at an earlier stage.

Commencement

5.111   Although the date of Royal Assent marks the point at which a Bill becomes law, it is not necessarily the date on which its provisions take effect.  This depends on the provision made in the Bill/Act for commencement.  Some Acts come into force immediately after Royal Assent, while others may come into force only after a specified period.  Some Acts provide for certain provisions to come into force before others, or for the same provision to come into force at different times for different purposes.

                                                                                  



[1] Sitting days are days when the office of the Clerk is open, but not when the Parliament is in recess or dissolved (Rule 2.1.3).  In practice, most weekdays (other than in recess) count as sitting days.

[2] The reasoning behind the procedure is more fully explained in the Standards, Procedures and Public Appointments Committee’s 4th Report, 2016 (Session 4), Standing Order Rule-changes – Legislation.

[3] With objections to amendments, there is no equivalent of the requirement (in Rule 9A.6.5(c)) to explain whether the objection lies against the whole Bill or specified provisions.

[4] This “super-majority requirement” was introduced by section 11 of the Scotland Act 2016. 

[5] Agreement to the motion normally requires only a simple majority (more members voting for the motion than against), but this would be a super-majority (at least 86 MSPs voting for the motion) if, in the Presiding Officer’s opinion the Private Bill related to a protected subject-matter.

[6] As at Final Stage, a simple majority is sufficient unless the Presiding Officer has stated that a super-majority is required (see footnote 5 above).

[7] Note that, in the Scottish Parliament, the term “session” refers to the period between the first meeting of the Parliament after a general election and the dissolution of the Parliament before the next election. The equivalent term in Westminster is a “Parliament”.

[8] All UK Acts, including Acts of the Scottish Parliament, are available at http://www.legislation.gov.uk/ukpga.

 

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