1.1 A Bill is a draft Act. A Bill introduced in the Scottish Parliament contains the text that will, if the Bill is passed and enacted, become part of the statute law as an Act of the Scottish Parliament.
1.2 A Hybrid Bill “is a Public Bill introduced by a member of the Scottish Government which adversely affects a particular private interest of an individual or body in a manner different to the private interests of other individuals or bodies of the same category or class” (Rule 9C.1.1). As the name suggests, a Hybrid Bill combines the characteristics of other Public Bills – being introduced by Ministers, and often dealing with matters of general public policy – with some of the characteristics of a Private Bill (a Bill introduced by a non-MSP promoter to obtain particular powers or benefits in excess of or in conflict with the general law). Because a Hybrid Bill (like a Private Bill) directly affects specific people or bodies in ways that set them apart from the public more generally, it require procedures that allow those people or bodies to object, and to make direct representations to the Parliament, in much the same way as the procedures used in consideration of Private Bills.
1.3 Hybrid Bills are subject to a three-stage process that is explained in detail in Part 5. A graphic overview is provided in Annex A.
The Scottish Parliament’s “legislative competence”
1.4 Section 29 of the Scotland Act 1998 imposes limits on the Scottish Parliament’s powers to legislate (whether in the context of a Public, Hybrid or Private Bill). The five criteria of “legislative competence” (set out in section 29(2)) mean that:
- the Parliament can only apply for or in relation to Scotland
- it cannot legislate in relation to the “reserved matters” set out in Schedule 5 to the 1998 Act. Only the UK Parliament can legislate on those reserved matters
- it cannot modify certain enactments set out in Schedule 4 to the 1998 Act (which include the Human Rights Act 1998, certain provisions of the Acts of Union and the European Communities Act 1972)
- its legislation must be compatible with the European Convention on Human Rights (ECHR) and with European Union law; and
- it cannot remove the Lord Advocate from his or her position as head of the system for criminal prosecutions and the investigation of deaths.
1.5 The 1998 Act requires separate statements on the legislative competence of any Bill to be made by the Presiding Officer and by the “member in charge” of the Bill before it is introduced in the Parliament. The 1998 Act also provides an opportunity for the legislative competence of a Bill to be challenged after it is passed but before it can become law.
1.6 While many of the limits on legislative competence are clear-cut, others may be subject to differences of interpretation. Whether the provisions of a Bill are within the legislative competence of the Parliament may be a matter of debate throughout the process of considering the Bill – both in regard to general debate on the Bill as a whole (or specific provisions in it) and in the context of particular amendments. The precise boundaries of the Parliament’s powers to legislate can ultimately be decided only by the courts.
1.7 As well as defining Hybrid Bills in general, the standing orders also identify a special category of such Bills – namely Bills that either seek to authorise the construction or alteration of certain classes of works (as listed in Annex B), or seek to authorise the compulsory acquisition or use of any land or buildings. Such Bills – Bills to which Rule 9C.1.2 applies – are sometimes known as “works” Bills.
1.8 Works Bills are subject to a number of specific additional requirements, as follows.
1.9 Firstly, they may only be introduced if the Scottish Government has first consulted the following bodies – referred to as “mandatory consultees”:
· Scottish Natural Heritage
· the Scottish Environment Protection Agency
· Historic Environment Scotland
· the local planning authority or authorities (which may include a National Park Authority).
1.10 The type of consultation required, and the relevant timescales, are set out in Annex C.
1.11 As well as being consulted by the Scottish Government before introduction, the mandatory consultees also have a right to make statements to the Parliament, after introduction, for example if they have concerns about the adequacy of the consultation that was undertaken. Such statements may be made during the same 60-day period, beginning on the day after the Bill is introduced, during which objections may be lodged – although a statement by a mandatory consultee is not itself treated as an objection (Rule 9C.8).
1.12 Secondly, various additional accompanying documents are required at the time a works Bill is introduced – namely, an Estimate of Expense and Funding Statement, maps, plans, sections and books of references, and an Environmental Statement. (These are explained in more detail in Part 2.)
1.13 Thirdly, there are additional restrictions on which MSPs may be members of the Hybrid Bill Committee established to consider a works Bill (as explained further in Part 4).
1.14 Finally, such a Committee has the option of having an independent assessor appointed to carry out much of the detailed scrutiny at Stage 2 – including, in particular:
· making recommendations on how the objections are to be grouped, which objectors should be appointed lead objectors, and whether the evidence taken should be written or oral
· taking that evidence, including through oral hearings, and reporting on it to the Committee.
1.15 The role of the assessor is explained further in Part 4.