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SP Paper 490

SPPA/S3/10/R5

5th Report, 2010 (Session 3)

The recommendations of the Commission on Scottish Devolution regarding Scottish Parliament procedures

CONTENTS

Remit and membership

Report

Background and introduction

Final Report of the Commission on Scottish Devolution

Discussion of the Commission’s recommendations

1 Relations between Parliamentary committees

The Commission’s recommendations
The Scotland Act 1998 and participation of non-MSPs
Options for closer working

2 Relations between Scottish MEPs and the Scottish Parliament

The Commission’s recommendation
Existing mechanisms for interaction between the Scottish Parliament and Scottish MEPs
Views of the European and External Relations Committee

3 Legislative Consent Motions (LCMs) and legislation in reserved areas

The Commission’s recommendations
Direct communication on LCMs
UK Parliament consideration of Scottish legislation
Power for the Scottish Parliament to legislate in reserved areas

4 Inter-government and Parliament relations

The Commission’s recommendations
Championing the importance of interaction between the Parliaments and Governments
Secretary of State to appear before the Scottish Parliament on legislative programme
Scottish Parliament or UK Parliament to pass motion seeking response from the relevant Parliament on issues on which they interact

5 Recommendations concerning the Scottish Parliament’s procedures

Committee membership and establishment of sub-committees
The Commission’s recommendations
The legislative process
The Commission’s recommendations
Statements on legislative competence
The Commission’s recommendations
Appointment of Presiding Officers
The Commission’s recommendation

6 Procedural review of Scotland Act

The Commission’s recommendation
General approach

7 Members’ interests

Members’ interests
Background: Calman report
Legislative background
Case for change
Options for change
Committee’s preferred option

Annexe A: Scotland Act provisions relevant to parliamentary procedures

Annexe B: Letter from the Presiding Officer on behalf of the Parliamentary Bureau

Annexe C: Letter from the Convener of the European and External Relations Committee

Annexe D: Extract from Minutes

Remit and membership

Remit:

1. The remit of the Standards, Procedures and Public Appointments Committee is to consider and report on—

(a) the practice and procedures of the Parliament in relation to its business;

(b) whether a member’s conduct is in accordance with these Rules and any Code of Conduct for members, matters relating to members’ interests, and any other matters relating to the conduct of members in carrying out their Parliamentary duties;

(c) the adoption, amendment and application of any Code of Conduct for members; and

(d) matters relating to public appointments in Scotland.

2. Where the Committee considers it appropriate, it may by motion recommend that a member's rights and privileges be withdrawn to such extent and for such period as are specified in the motion.

(Standing Orders of the Scottish Parliament, Rule 6.4)

Membership:

Robert Brown
Aileen Campbell
Angela Constance
Marilyn Livingstone (Deputy Convener)
Nanette Milne
Gil Paterson (Convener)
Peter Peacock

Committee Clerking Team:

Clerk to the Committee
Gillian Baxendine
Alison Walker

Senior Assistant Clerk
Mary Dinsdale
Roz Wheeler

Assistant Clerk
Catherine Fergusson

Support Manager
Stephen Fricker

The recommendations of the Commission on Scottish Devolution regarding Scottish Parliament procedures

The Committee reports to the Parliament as follows—

Background and introduction

1.At its meeting on 8 December 2009, the Parliamentary Bureau (“the Bureau”) referred to the Standards, Procedures and Public Appointments Committee (“the Committee”) a number of the recommendations from the final report of the Commission on Scottish Devolution (“the Calman Commission”).The letter from the Presiding Officer and the Bureau paper are at Annexe B.

2.The Bureau asked the Committee, in the first instance, to report in principle on the recommendations, identifying where and how further, more detailed work might need to be undertaken, and to what timeframe.The Bureau envisaged that such an initial report would come before the Parliament for debate and resolution on the next steps.

3.Since the Committee began consideration of the referral from the Bureau the UK general election has taken place, leading to a new UK Government.The new Government has indicated that it intends to take forward the implementation of the recommendations of the Calman Commission with a bill to give effect to this due to be introduced in the autumn of 2010. In view of the tight timescale for the introduction of the Bill, the Committee is now making specific proposals to the Parliament about whether and how to implement the recommendations referred to it in so far as they relate to parliamentary procedure covered in the Scotland Act 19981.

4.However, these time constraints have meant that the Committee’s consideration has not been as detailed as it would have wished.

5.This report sets out the Committee’s views on the recommendations referred to it which relate to—

1 Relations between parliamentary committees;

2 Relations between Scottish MEPs and the Scottish Parliament;

3 Legislative Consent Motions (LCMs) and legislation in reserved areas;

4 Inter-government and Parliament relations;

5 Recommendations concerning the Scottish Parliament’s procedures

  • Committee membership and establishment of sub committees;

  • The legislative process;

  • Statements on legislative competence;

  • The appointment of Presiding Officers;

6 Procedural review of the Scotland Act;

7 Members’ interests.

Final Report of the Commission on Scottish Devolution

6.The Commission on Scottish Devolution published its final report2 on 15 June 2009.

7.Responses to the Commission’s final report have been published by the Scotland Office on behalf of the previous UK Government3 and by the Scottish Government4.

8.A political steering group was established by the previous UK Government and has been continued by the present Government with membership from the three parties who initiated the Commission – Conservative, Labour and Liberal Democrats. The current steering group consists of the leaders of these three parties in the Scottish Parliament along with, from the UK Parliament, the Secretary of State for Scotland, the Parliamentary Under Secretary of State for Scotland and the Shadow Secretary of State for Scotland.

9.The Scottish Parliament has debated the report twice since its publication.On 25 June 2009, the Parliament agreed the following motion (by division, 69 to 49)—

“That the Parliament warmly welcomes the Calman Commission on Scottish Devolution's report, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, which is based firmly on evidence and engagement with the people of Scotland; thanks the chair and members of the commission for their work on behalf of the Parliament and the UK Government; agrees that the commission's report is a comprehensive response to the remit approved by the Parliament on 6 December 2007; welcomes the establishment of the steering group to take forward the report's recommendations to strengthen devolution and enable the Parliament, through new powers and responsibilities, to serve the people of Scotland better in the United Kingdom; calls on the Scottish Government to make fully available the resources of the Scottish administration to cooperate in this respect, and calls on the Scottish Parliamentary Corporate Body to continue to allocate appropriate resources and funding to enable the Parliament to support the work of the steering group and consider the recommendations that apply to the Parliament.”

10.On 9 December 2009 the Parliament agreed the following motion (by division, 63 to 61)—

“That the Parliament welcomes the recommendations of the Calman Commission on Scottish Devolution that responsibility for the law across a range of areas be devolved to the Scottish Parliament and also welcomes the recommendations for closer working between the Scottish and UK Ministers to ensure that the needs of Scotland are properly represented, and urges the UK Government to work with the Scottish Parliament to ensure that, where there is consensus, all such recommendations are implemented before the dissolution of the current UK Parliament.”

Discussion of the Commission’s recommendations

11.In the following sections, the relevant Commission recommendations are detailed, followed by the Committee’s views.

1 Relations between Parliamentary committees

The Commission’s recommendations

Recommendation 4.5: A standing joint liaison committee of the UK Parliament and Scottish Parliament should be established to oversee relations and to consider the establishment of subject specific ad hoc joint committees.

Recommendation 4.6: Committees of the UK and Scottish Parliaments should be able to work together and any barriers to this should be removed.

a. Any barriers to the invitation of members of committees of one Parliament joining a meeting of a committee of the other Parliament in a non-voting capacity in specified circumstances should be removed.

b. Any barriers to committees in either Parliament being able to share information, or hold joint evidence sessions, on areas of mutual interest, should be removed.

c. Mechanisms should be developed for committees of each Parliament to share between them evidence submitted to related inquiries.

The Scotland Act 1998 and participation of non-MSPs

12.In considering these recommendations the Committee noted that this general issue was considered by the Session 1 Procedures Committee in its 3rd report 2003 The Founding Principles of the Scottish Parliament5.This report looked at the proposal made by the Consultative Steering Group that non-MSPs might be members of parliamentary committees and commented that the matter had been considered by the Conveners Group which had received legal advice that such participation was not permissible under the terms of the Scotland Act.No further detail regarding the terms of the advice referred to in that report was available.

13.In its 4th Report 2006, the House of Commons Scottish Affairs Committee also commented on the permissibility of participation by non-MSPs in proceedings of the Scottish Parliament—

“Section 27 of the Scotland Act 1998 would seem to indicate that that Act would have to be amended before Westminster Members could participate in proceedings at Holyrood, as it expressly enables the Scottish Law Officers so to participate; the general rule of interpretation is that, in default of clear words to the contrary, the expression of one category excludes all others. However, this cannot debar the House from deciding to allow MSPs to participate in the proceedings of its own committees. This would be unusual, but not without precedent for UK Parliamentarians.”6

14.The Committee therefore considered whether the provisions of the Scotland Act, including section 27, prevent the participation of non-MSPs in proceedings of the Parliament, unless specifically authorised. The Committee agrees with the conclusions above and notes that the Scotland Act treats members of the Scottish Parliament differently to non-MSPs in relation to participation in proceedings of the Parliament. For example, non-MSPs can attend committee proceedings to give evidence whereas MSPs are entitled to participate in those proceedings by, for example, voting on the details of a bill.The Committee also considered whether it would be possible for such participation to be provided for in Standing Orders. The Committee considers that, while section 22 of the Scotland Act enables the Parliament to regulate its proceedings by standing orders, the distinction between the type of participation engaged in by MSPs and non-MSPs would still be maintained.

15.The Committee therefore notes that, if the Commission’s recommendation were to be agreed to and taken forward by means of a formal parliamentary committee, it would appear that amendment of the Scotland Act to enable the participation of non-MSPs in proceedings of the Scottish Parliament would be necessary prior to the implementation of any procedural mechanism for closer working.

Options for closer working

16.The Committee also notes that there is a range of ways in which joint working between the Parliaments could be taken forward, including: formal joint working (through, for example, the establishment of a standing joint liaison committee, as suggested by the Calman Commission); concurrent meetings of committees; or further development of mechanisms which already exist.

Joint meetings of committees

17.The particular form of joint working envisaged by the Calman Commission (in terms of recommendation 4.5) is joint meetings of committees.Given the issues surrounding the ability of non-MSPs to participate in proceedings of the Parliament, the Committee notes that formal joint working would require an amendment to the Scotland Act before it could be implemented.

18.The Committee noted the views of the Scottish Affairs Select Committee in its report to the UK Parliament on the Report of the Commission on Scottish Devolution. That Committee stated—

We are not persuaded that the challenge involved in overcoming the necessary complexities in establishing a formal joint committee would be justified by the likely level of demand for the creation of joint subject-specific committees. However, we feel there is greater merit in our recommendation of our 2006 Report that the House establish a "Super" Scottish Grand Committee, composed of Scottish MPs, MSPs and Scottish MEPs that could meet to consider matters of mutual interest. This option would not only be more practical in procedural terms but would include Scottish MEPs, providing a broader political canvas to debate Scotland's future.

Our 2006 recommendation was not considered on the floor of the House and was treated unenthusiastically in the Government's response. As a consequence it has never been considered by the Procedure Committee. We invite the Procedure Committee to revisit the idea of a "Scottish Super Grand Committee".

We conclude, however, that removing procedural barriers is only one part of improving communication and co-operation between committees. The structures should be put in place to facilitate co-operation, but that co-operation will only result if there is the political will for committees to work together.7

Concurrent meetings of committees

19.While the Committee acknowledges that complex issues arise with joint committees, the Scotland Act does not appear to prevent the possibility of concurrent meetings of committees of the UK and Scottish Parliaments and there may be some scope to provide for such meetings without the need to amend the Scotland Act.

20.Further examination would be required as to whether and how such meetings could be authorised under Standing Orders.The Committee again notes that given the limitations on participation of non-members in proceedings of the Parliament, Standing Orders would have to be clear about the nature of such meetings. It may be that if it were agreed that this type of meeting would potentially be of benefit, it would be preferable for such meetings to be specifically authorised under the Scotland Act.

21.The Committee noted that Standing Order 10.48 of the National Assembly for Wales (“the Assembly”) enables committees of the Assembly to meet concurrently with any committee or joint committee of either House of Parliament.However, the relevant legislation governing the operation of the Assembly does not contain a specific provision to enable the concurrent sitting of committees and section 28(2) of the Government of Wales Act 2006 explicitly prohibits Assembly Standing Orders from allowing anyone who is not an Assembly member to be a member of a committee.

22.The terms of Standing Order 10.48 stem from an original Standing Orders provision enabling joint meetings of committees.In February 2005, the Assembly agreed to introduce a provision enabling certain of its committees to invite members of the UK Parliament’s Welsh Affairs Committee to attend and participate (but not vote) in committee proceedings.In May 2007, the current Standing Order 10.48 was adopted in preparation for the implementation of the Government of Wales Act 2006.

23.The Committee understands that since May 2007 only one formal meeting has been held under Standing Order 10.48, between the Domiciliary Care Legislative Competence Order (LCO) Committee and the Welsh Affairs Committee.However, the Committee also understands that, subsequently, legislation committees of the Assembly have held informal meetings, for discussion only, with the Welsh Affairs Committee.

24.The Committee also notes that the UK Parliament Standing Order which makes reciprocal provision, Standing Order 137A(3), does not refer to joint or concurrent meetings but enables the Welsh Affairs Committee to invite members of any specified committee of the Assembly to attend and participate in its proceedings (but not to vote).

Parliamentary privilege and other rules applying to proceedings

25.Parliamentary privilege at Westminster flows from the 1689 Bill of Rights. Article 9 of the Bill of Rights “confers on ‘proceedings in Parliament’ protection from being ‘impeached or questioned’ in any ‘court or place out of Parliament’.”8Parliamentary privilege for the Scottish Parliament exists only to the extent defined by section 41 of the Scotland Act in relation to protection against claims of defamation for statements made in parliamentary proceedings or published under the authority of the Parliament.

26.In addition, there are a number of other areas where proceedings in the Scottish Parliament are governed by rules that apply to a different extent and manner than to the UK Parliament.Provisions in the Scotland Act which set out rules regarding contempt of court, the power to call for witnesses and documents and those regarding the declaration of interests would all have to be considered in taking forward the Commission’s recommendations.

27. The Committee therefore draws to the Parliament’s attention that, in pursuing any of these options, consideration would need to be given to any differential extent of the application of parliamentary privilege, and other rules,applying to proceedings of the UK and Scottish Parliaments.

Options for sharing information

28.Points (b) and (c) of recommendation 4.6 relate to mechanisms for sharing information and evidence on matters of mutual interest and the removal of any barriers to the operation of such systems.

29.The Committee notes that evidence submitted to Scottish Parliamentary committees is generally made public during the course of inquiries. This information is therefore accessible to anyone who wishes to view it. This is also the case with oral evidence given to committees.It would therefore be possible for any UK Parliamentary committee to access this public information.Highlighting this may not, however, be reflective of the greater communication between Parliaments that appears to be envisaged by the Calman Commission. The Committee suggests that while a more structured system for the exchange of information could be put in place as a result of discussion between the two Parliaments, such a system would not need to be formalised within Standing Orders.

30.Consideration would also have to be given to the issue of data protection requirements in relation to sharing personal information (including addresses) with another body which is subject to slightly different requirements under the Data Protection Act 19989 and for a purpose other than which the information was provided to the Scottish Parliament. From the Scottish Parliament’s perspective it may be that for some information such a barrier could be overcome by the addition of a statement to any call for evidence indicating that the information provided, including contact details, may be provided to the UK Parliament in connection with any work being undertaken on a similar issue. Anyone submitting evidence would be asked to agree to the information they submitted being used in this way. However, this could not be seen as meeting all data protection requirements, and further consideration may have to be given as to how such requirements could be fully met.

31.House of Commons Standing Order 137A provides any committee or sub-committee of that House with a power to communicate its evidence to any other UK Parliamentary committee or the Scottish Parliament, National Assembly for Wales and the Northern Ireland Assembly.

32.Recommendation 4.6(b) calls for the barriers to holding joint evidence sessions to be removed. Similar issues arise in relation to such sessions as arise generally in the holding of joint committees. Consideration would have to be given to changes which would be required to the Scotland Act to enable such joint sessions as different rules apply to, for example, the calling of witnesses and documents.

33.The Committee therefore highlights the possible implications of data protection requirements and that there are specific provisions in the Scotland Act which relate to the power to call for witnesses and documents.

34.The Committee notes the range of options for joint working between the two Parliaments and that the more formal option of establishing a standing joint liaison committee may require amendments to the Scotland Act. The Committee considers that this might require more detailed consideration than the current timescale would allow, and suggests that development of more informal working arrangements is an option which could be looked at in the first instance.

2 Relations between Scottish MEPs and the Scottish Parliament

The Commission’s recommendation

Recommendation 4.18: Closer involvement between Scottish MEPs and the Scottish Parliament is needed, and Scottish MEPs should be invited to attend, and should attend, the Scottish Parliament European and External Relations Committee regularly on a non-voting basis. The Committee should schedule its meetings to facilitate their regular attendance.

35.In considering this recommendation, the Committee looked at existing mechanisms of interaction between Scottish Parliamentarians and Scottish MEPs and sought the views of the European and External Relations Committee (“the EERC”) on the terms of the recommendation.

36.The Committee also noted that the same issue regarding participation of non-MSPs, as discussed above, would also apply in relation to recommendation 4.18.

Existing mechanisms for interaction between the Scottish Parliament and Scottish MEPs

37.There are a number of mechanisms of engagement currently in place to support relations between the Scottish Parliament and Scottish MEPs.These include—

  • MEPs being invited to give evidence to the EERC on an issue by issue basis;

  • the Parliament’s European Officer (based in Brussels) having regular contact with MEPs (including MEPs having been invited to make regular contributions to the Brussels Bulletin produced by the European Officer);

  • Scottish MEPs being approached for formal or informal meetings when members of the EERC (and other committees) visit Brussels;

  • EERC representative and Scottish MEPs being invited to attend EMILE meetings (see next paragraph).

38.In addition, there are a number of ways in which the Scottish Parliament engages not just with Scottish MEPs but also with other institutions.

  • The European Chairs-UK Group (EC-UK) was established in 2000 and provides a forum to encourage closer links between the European Committees in the House of Commons, the House of Lords, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.

  • EMILE (Elected European Members’ Information and Liaison Exchange) is a forum chaired by the Minister for External Relations and attended by elected representatives in Scotland who have an interest in European issues. Membership includes, amongst others, the six Scottish MEPs and local authority representatives.

39.Both EC-UK and EMILE meetings take place twice a year.

The Lisbon Treaty and subsidiarity

40.Tied into the issue of the relationship between the Scottish Parliament and Europe is the subsidiarity principle under the Lisbon Treaty, which is described as being “intended to ensure that decisions are taken as closely as possible to the citizen and that constant checks are made as to whether action at Community level is justified in the light of the possibilities available at national, regional or local level.”10As a result regional parliaments are to become more involved in the scrutiny of European legislation than has previously been the case.

41.Allied to the subsidiarity principle, the Committee notes that, under Standing Orders Rule 6.2, engagement with Scottish MEPs and consideration of European policy or procedural matters is within the remit of each committee of the Parliament, and that interaction with Scottish MEPs should therefore not be seen as falling solely on the EERC.

Scheduling of European and External Relations Committee meetings

42.The Commission recommends that meetings of the EERC should be scheduled to facilitate the regular attendance of Scottish MEPs.The Committee notes that there would be practical difficulties in achieving this due to the sitting patterns of the Scottish and EU Parliaments as for MEPs to attend would require meetings of the EERC being scheduled on Mondays or Fridays.

43.While recognising the importance of developing interaction between the Scottish Parliament and Scottish MEPs, the Committee does not consider that the Commission’s recommendation would provide the most effective means of achieving increased interaction.

Views of the European and External Relations Committee

44.The views submitted to the Committee by the EERC (attached at Annexe C) support the underlying point of the Commission’s recommendation that there is scope for improving interaction between the Scottish Parliament and Scottish MEPs. In particular, the EERC refers to the context of the Treaty of Lisbon and the new powers the European Parliament has in relation to areas of particular interest to Scotland, such as the Common Agricultural Policy and the Common Fisheries Policy.

45.However, the EERC highlights difficulties about inviting MEPs to attend EERC meetings. In particular, the EERC refers to possible issues of precedent with regard to Scottish Parliament committee membership and contact that has been made “by Cosla suggesting that, if MEPs became committee members, its elected representatives would seek membership also”.11

EERC proposals for developing closer links with Scottish MEPs

46.The EERC therefore proposes an alternative means by which closer links could be developed. The three aspects of the alternative proposed by the EERC are—

  • the introduction of an ‘Open Door’ policy – a mechanism through which MEPs could add items to the agenda of the EERC (giving them parity in this regard with EERC members);

  • a programme of regular video-conferences with MEPs – every fourth committee meeting a slot would be created for an MEP to enter into dialogue with the EERC and facilitate regular information sharing; and

  • a proposal to hold an annual meeting of the EERC in Brussels with all Scottish MEPs to jointly analyse the European Commission’s Work Programme.

47.In relation to the third proposal, the EERC highlights that an amendment to Standing Orders Rule 12.3.2 (enabling committees to meet at any location in Scotland) may be required to facilitate such a meeting.

The Impact of the Treaty of Lisbon report

48.On 23 June 2010, the EERC published the report of its inquiry on The Impact of the Treaty of Lisbon12 in which it recommends a new model for the way in which European issues are handled in the Parliament which would result in greater levels of engagement with Scottish MEPs and European matters in general.The key features of the new model are—

  • The role of the European and External Relations Committee would be that of overseeing and co-ordinating European relations as a whole, horizon-scanning on behalf of the Parliament, acting as an informed and competent conduit for the subject committees and, where necessary and possible, acting as a safety net.

  • The active scrutiny role would rest primarily with the subject committees, which they would do under their own volition (by prioritising issues, initiating research, conducting inquiries, etc.).

  • At the core of the proposed new model would be the creation of ‘European Union Co-ordinators’ on each subject committee. EU Co-ordinators would act as conduits between the European and External Relations Committee and their own committee and would have a number of specific roles in relation, for example, to highlighting the EU dimension where relevant to policy debates. The idea is based on a model that has been successfully utilised in the Bavarian Parliament and the Flemish Parliament and reflects the original aspirations of Standing Orders (rule 6.8.4) to have strong links between the European and subject committees.

49.The Committee concludes that the EERC proposals, as set out in paragraph 46 above, appear to offer an effective means of achieving the development of closer links between the Scottish Parliament and Scottish MEPs without the complexities of committee membership for MEPs.It recommends that the Parliament consider further whether the EERC proposals offer a satisfactory alternative way to deliver the spirit of the Commission’s recommendation.

3 Legislative Consent Motions (LCMs) and legislation in reserved areas

The Commission’s recommendations

Recommendation 4.3: The UK Parliament and Scottish Parliament should have mechanisms to communicate with each other:

a. There should be detailed communication about legislative consent motions (LCMs), and in particular if a Bill subject to an LCM is amended such that it is outside the scope of the LCM.

b. A mechanism should exist for each Parliament to submit views to the other, perhaps by passing a motion where appropriate.

Recommendation 4.9: Where legislation interacts with both reserved and devolved matters there should be continued cooperation:

a. For any UK Parliament Bill which engages the Sewel Convention on a matter of substance, consideration should be given to including one or more Scottish MPs on the Public Bill Committee, who should then be invited, as appropriate, to meet the Scottish Parliament committee scrutinising the legislative consent memorandum.

b. A Scottish Minister should as appropriate be asked to give evidence to the UK Parliament committee examining Orders made under the Scotland Act.

Recommendation 4.15: A new legislative procedure should be established to allow the Scottish Parliament to seek the consent of the UK Parliament to legislate in reserved areas where there is an interaction with the exercise of devolved powers.

Direct communication on LCMs

50.The first recommendation calls for the establishment of direct channels of communication between the two Parliaments in relation to LCMs.It appears likely that this could be achieved as far as the Scottish Parliament is concerned through administrative action (for example, an agreed protocol) without legislative or rule changes.

51.The Scottish Government does not support this recommendation, taking the view that parliaments can already make their views known by passing a motion such as an LCM and that the responsibility for transmitting those views from one parliament to another should fall to governments.

52.The Committee notes that no legislative change is needed and recommends that further discussion is given to the possible benefits of the development of a protocol.

UK Parliament consideration of Scottish legislation

53.The steps proposed in recommendation 4.9 are primarily a matter for the UK Parliament but it appears they could be achieved under existing procedures: the Scottish MPs on the House of Commons Committee could meet the Scottish Parliament Committee either informally or by appearing as witnesses. There is no bar to a Scottish Minister giving evidence to a UK Parliament committee.This would appear therefore to be a matter which could be implemented by discussion and agreement between the two Parliaments and governments.

54.The Scottish Government does not support part (a) of this recommendation, taking the view that neither MPs nor the Westminster committee have any role in relation to devolved matters.While the Scottish Government is not wholly opposed to part (b) of the recommendation, it emphasises that there should be no blurring of lines of accountability since Scottish Ministers are not accountable to Westminster.

55.The Committee notes that no legislative change is needed and recommends that further discussion is given to the possible benefits of the development of a protocol.

Power for the Scottish Parliament to legislate in reserved areas

56.In recommendation 4.15, the Commission recommends that there should be a procedure to enable the Scottish Parliament, in certain circumstances and for specific purposes, to legislate in reserved areas where there is close connection with the exercise of devolved powers.The procedure envisaged by the Commission would be for the UK Parliament, by order made by Statutory Instrument, to give the Scottish Parliament authority to legislate on a specific matter only in response to proposals from the Scottish Government or Scottish Parliament.The Commission notes an occasion (in relation to the Somerville Case13) where existing Scotland Act provisions were used to transfer a power to

legislate to the Scottish Government, with political agreement that once the immediate problem had been resolved the power to legislate would be removed again.

57.The Commission’s proposal would require amendment to the Scotland Act.It is possible that some Standing Order rule changes would be required, although depending on the nature of the legislative change, it may be that any subsequent order could be accommodated within the Parliament’s existing procedures.

58.The Scottish Government does not support this recommendation, taking the view that competence should be transferred permanently.

59.The Committee notes that, while it may be desirable to have a procedure such as that outlined in the Commission’s recommendation, flexibility already exists in current powers to enable a limited extension of legislative competence.

4 Inter-government and Parliament relations

The Commission’s recommendations

Recommendation 4.7: To champion and recognise the importance of interaction between the Parliaments and Governments:

a. UK and Scottish Government Ministers should commit to respond positively to requests to appear before committees of the others’ Parliament.

b. The UK Government Cabinet Minister with responsibility for Scotland (currently the Secretary of State for Scotland) should be invited to appear annually before a Scottish Parliament committee comprised of all committee conveners, and the First Minister should be invited to appear annually before the House of Commons Scottish Affairs Committee.

Recommendation 4.8: Shortly after the Queen’s Speech the Secretary of State for Scotland (or appropriate UK Government Cabinet Minister), should be invited to appear before the Scottish Parliament to discuss the legislative programme and respond to questions in a subsequent debate. Similarly, after the Scottish Government’s legislative programme is announced the First Minister should be invited to appear before the Scottish Affairs Committee to outline how Scottish Government legislation interacts with reserved matters.

Recommendation 4.10: Either the Scottish Parliament or either House of the UK Parliament should be able, when it has considered an issue where its responsibilities interact with the other Parliament’s, to pass a motion seeking a response from the UK or Scottish Government. The relevant Government in each case should then be expected to respond as it would to a committee of its own Parliament.

60.Recommendations 4.7, 4.8 and 4.10 concern the way in which Ministers of the UK and Scottish Governments relate to the UK and Scottish Parliaments.The Committee notes that much of what is recommended in these recommendations could currently be implemented by agreement between the two governments and Parliaments, without the need for formal procedural mechanisms or for any amendment to the Scotland Act.

Championing the importance of interaction between the Parliaments and Governments

61.Recommendation 4.7(a) is political rather than procedural; UK and Scottish Government Ministers can appear, and have on occasion appeared, as witnesses before committees of the other Parliament. However, in relation to committees of the Scottish Parliament, a UK Minister can only be required to attend where that Minister exercises a function which concerns a subject for which any member of the Scottish Government has general responsibility, and does not exercise that function jointly with or with the agreement of the Scottish Ministers. The Scottish Government agrees that in general there should be a positive response to requests to appear before parliamentary committees to provide information and evidence.The Committee notes that this recommendation is a matter for political agreement or a protocol between the respective Parliaments and Governments but does not require procedural change.

62.There are several ways in which the proposal in recommendation 4.7(b) relating to the Secretary of State for Scotland appearing annually before a Scottish Parliament committee could be implemented.

63.The Committee notes that, while it is not in the Scottish Parliament’s gift to require the Secretary of State for Scotland to appear annually before a Scottish Parliament Committee, there are a number of ways in which the proposal in recommendation 4.7(b) could be taken forward with the UK Government’s agreement.

Option 1

64.The Conveners Group consists of the convener of each mandatory and subject committee. The rules relating to the operation of the Conveners Group are set out in Chapter 6A of the Standing Orders.Rule 6A.2.2 states that “the Conveners Group shall not be regarded as a committee for the purpose of these Rules”.If the Conveners Group were to be the formal forum for such an evidence session, it would be necessary to create a rule which states that the Conveners Group will be regarded as a committee for this purpose.It would also be necessary to amend the functions of the Conveners Group to include the annual evidence session.These would not be complicated rule changes and could be implemented relatively quickly.

Option 2

65.Alternatively, the Parliamentary Bureau could propose either an ad hoc committee of conveners on an annual basis or a permanent committee of Conveners with this single purpose as its remit.Neither of these options would require any amendment to Standing Orders which already allow for the creation of additional or ad hoc committees.

Option 3

66.The third option would be for the UK Minister’s appearance not to be a formal parliamentary proceeding.For example, the UK Minister could attend an informal meeting of the Conveners Group, which could be held in public if necessary.This was the process adopted for the evidence session with Michael Moore, the current Secretary of State for Scotland, when he appeared before a meeting of Committee Conveners and Business Managers at the Scottish Parliament on 17 June 2010.

67. The Committee’s preferred option would be for the UK Minister’s appearance not to be a formal parliamentary proceeding, which would retain more flexibility in arrangements for the Minister’s attendance.

68.The Committee also notes that whilst the establishment of a convention for taking evidence from the Secretary of State on an annual basis would be of benefit, it could not be a requirement given the limit on the Scottish Parliament requiring UK Government Ministers to attend its proceedings (as outlined at paragraph 61).

69.The recommendation that there should be an annual appearance of the First Minister before the House of Commons Scottish Affairs Committee was considered by the Scottish Affairs Committee (“SAC”) of the House of Commons before the last UK general election.14The SAC noted concerns expressed to it that “to entrench these recommendations could prove detrimental to co-operation and act as more of a media exercise than valuable evidence session”.The SAC therefore concluded that—

“Both the UK Government and the Scottish Executive have indicated that they would be willing to respond positively to requests to appear before committees of either Parliament.However, we conclude that invitations should be at the discretion of the committee or Parliament and reflect the workload and timetable of both UK and Scottish Government Ministers.”

70.The Committee notes the views expressed by the Scottish Affairs Committee and is content that this recommendation is a matter for the UK Parliament.

Secretary of State to appear before the Scottish Parliament on legislative programme

71.Recommendation 4.8 is that the Secretary of State for Scotland should be invited to appear before the Scottish Parliament to discuss the legislative programme.This clearly raises similar issues to recommendation 4.7. The Scottish Government does not support this recommendation and considers that it would blur boundaries and cause confusion.

72.The Committee considers that such a formal procedure is not necessary and that existing processes work adequately.The Committee is of the view, however, that there should be an expectation of annual dialogue between the Scottish Secretary of State and the Scottish Parliament, and the First Minister and the UK Parliament in relation to the legislative programme.As outlined above in relation to recommendation 4.7, the Committee believes that this dialogue should be achieved by convention and would not require any changes to Standing Orders.

73.The Committee recommends that there should be dialogue about their legislative programmes between the Secretary of State and the First Minister with the relevant parliaments but that such discussions should be informal and not require any provision in Standing orders.

Scottish Parliament or UK Parliament to pass motion seeking response from the relevant Parliament on issues on which they interact

74.Recommendation 4.10 is that either the Scottish Parliament or either House of the UK Parliament should be able, when it has considered an issue where its responsibilities interact with the other Parliament’s, to pass a motion seeking a response from the UK or Scottish Government. The Commission considers that there may be occasions when the Scottish Parliament wishes to convey views to the UK Government, or the UK Parliament to the Scottish Government, and proposes that there should be a formal mechanism for this.The report comments that: “We would not envisage this mechanism being subject to frequent use, and an appropriate threshold to activate it would need to be developed.”15

75.The Scottish Government does not support this recommendation on the grounds that no government should have to justify itself to a parliament to which it is not accountable.It also notes that any committee could invite evidence from ministers and members from the other Parliament on matters within its jurisdiction.

76.The Committee does not support this recommendation. The Committee notes that the Scottish Parliament is already able to make its views known to the UK Government when required, whether through debate, correspondence, evidence sessions or through Scottish Government Ministers.

5 Recommendations concerning the Scottish Parliament’s procedures

77.Eight of the recommendations referred to the Committee concern the Parliament’s own procedures.Some of the changes only require Standing Order changes; some would also require amendments to the Scotland Act.

78.The Scottish Government has made a general comment that these recommendations are for the Parliament to consider but that it believes that as our Parliament and democratic culture continues to grow and develop, the challenges are to make Parliament a relevant and accessible place and to ensure it is open and responsive to change.The Government would want to ensure that the Parliament’s procedures remain effective and do not become unduly cumbersome and bureaucratic as the result of any change.

Committee membership and establishment of sub-committees

The Commission’s recommendations

Recommendation 6.1: In relation to the Parliament’s committeesystem:

a. The structure of dual-purpose committees established both to carry out investigative inquiries and to undertake the detailed scrutiny of legislation should be maintained.

b. The level of turnover of committee memberships during a session should be minimised, in order to enable committee members to build expertise.

c. Committees should have the facility to establish subcommittees to address temporary problems of legislative overload, without this requiring the prior approval of the Parliament as a whole.

79.Recommendation 6.1(a) is simply a restatement of support for the dual-purpose committee system in the Parliament and would not require any action by the Parliament since such a structure already operates.

80.Recommendation 6.1.(b) reflects the Commission’s view that, if committees are to be effective, they need to build up expertise in the subject-matter over time and this requires a relatively low rate of turnover of members. The level of turnover of committee memberships is dictated by various factors, including changes in spokespersons’ portfolios, resignations, etc.

81.While it may be the case that political parties should give greater recognition to the value of continuity in committee members, the Committee takes the view that this is a matter for the parties and not something which can be addressed through procedural solutions.

82.Recommendation 6.1(c) highlights the practical difficulty of legislative overload on committees and on their ability to strike a balance between legislative scrutiny and proactive inquiry work.It suggests that committees might make more use of sub-committees so that work on a particular bill could be ongoing in parallel with inquiry work.The Commission proposes that this could be made simpler by removing the requirement for Parliamentary Bureau and parliamentary approval.

83.Rule 12.5 of Standing Orders states that a committee may establish one or more sub-committees, with the approval of the Parliament on the motion of the Parliamentary Bureau.The Scottish Parliament has to date made little use of sub-committees16, tending to deal with additional work through the establishment of ad hoc committees or, as with justice in Sessions 1 and 2, by establishing separate parallel committees.

84.The Committee considers that the current mechanisms for the establishment of sub-committees are adequate and do not require to be reviewed since there is no evidence of any unmet demand for the establishment of sub-committees by committees.

The legislative process

The Commission’s recommendations

Recommendation 6.2: The current three-stage Bill process should be changed to a four-stage process, with Stage 3 becoming limited to a second main amending stage, taken in the Chamber, while the final debate on whether to pass the Bill would become Stage 4.

Recommendation 6.3: The Parliament should amend its rules so that any MSP has the right to propose, at the conclusions of the Stage 3 amendment proceedings, that parts of a Bill be referred back to committee for further Stage 2 consideration.

Recommendation 6.4: The Presiding Officer should be able to identify in advance of Stage 3 amendments that (in his view) raise substantial issues not considered at earlier stages. If, at the end of the amendment proceedings, any such amendment has been agreed to, relevant provisions of the Bill should be referred back to committee for further Stage 2 consideration unless the Parliament decides otherwise (on a motion that may be moved only by the member in charge of the Bill).

The current rules

85.The procedures governing Stage 3 consideration of bills are set out in Standing Orders Rule 9.817.The two distinct parts of Stage 3 (proceedings on amendments and debate on the motion that the bill be passed (“the debate”)) are embodied in Rules 9.8.3 and 9.8.2 respectively—

Rule 9.8.2

At Stage 3, the Parliament shall decide, on a motion of the member in charge of the Bill, whether the Bill be passed.

Rule 9.8.3

A Bill may be amended at Stage 3.Notice of an amendment may be given by any member after completion of Stage 2.

86.There are currently three elements of flexibility in how these are scheduled—

  • The amendment proceedings and the debate may be scheduled in advance to take place on separate days.

  • Where the amendment proceedings and the debate are scheduled for the same day, the member in charge has a right to move, immediately after the amendment proceedings are concluded and without notice, that the debate be adjourned to a later day (Rule 9.8.5C).

  • The member in charge has, at the beginning of the debate to pass the bill, a right to propose by motion that no more than half of the bill be referred back to committee for further Stage 2 consideration (Rule 9.8.6).

  • If further Stage 2 proceedings are agreed to, when concluded, a Stage 3 date will be scheduled as normal, providing for both proceedings on amendments and the debate.A bill may be referred back to committee for further Stage 2 proceedings only once.

Four stage legislative process

87.The Commission’s recommendation 6.2 suggests a four stage legislative process.The Commission notes that the normal practice is for all the Stage 3 consideration of a bill (i.e. amendments and debate on the motion that the bill is passed) to be timetabled on one day.It points out that with some controversial bills that has sometimes resulted in a final decision being taken to pass a bill only very shortly after significant changes to the detail of the bill have been agreed to, with no opportunity for members to consider the final shape of the bill.To address this, the Commission recommends that Stage 3 consideration is split over two different days, with the amending stage and the debate on the motion being separated.

88.Rule 9.8.5C allows the member in charge of a bill to propose, after the last amendment has been disposed of, that the remaining proceedings be adjourned to a later day.The Commission concludes that, as this Rule has only been used once18, it is viewed as a “procedural back-stop only to be used in exceptional circumstances” (paragraph 6.62).The Commission feels that there is a strong case for the Parliament to amend the rules so that the splitting of Stage 3 becomes the normal practice.Stage 4 would also provide a limited opportunity for further correcting amendments (as is already provided in Rule 9.8.5D where Stage 3 is adjourned).

89.Under current rules, the Parliament can already achieve the separation of the amendment proceedings and the debate envisaged by recommendation 6.2 in particular cases, either by scheduling the two parts of Stage 3 on separate days in advance or in response to particular events by the member in charge moving for an adjournment under Rule 9.8.5C19.

90.The Committee notes that, just as there are cases where separating amendment proceedings and the debate would be particularly beneficial (for example, for large, complex bills which are expected to be heavily amended at Stage 3), there may equally be cases where separate proceedings might be unnecessary (such as small, uncontroversial bills which are amended in only minor ways, or not at all, at Stage 3).

91.If the assumption is that having the debate on a separate day would generally increase the time available for amendments, then the overall amount of time required for consideration of legislation would increase.That could have consequences for the time available for other business generally20 but could have a disproportionate impact on Government business.Alternatively, if the same overall time was allocated to each bill as would have been made available under the current rules, there would be no impact on other business.

92.The Committee also considered whether changes would be required to the Scotland Act if it was recommended that there should be provision for additional stages of bills.

93.Section 36(1) of the Scotland Act provides the minimum requirements for the stages through which a bill should pass while proceeding through Parliament and provides that—

“(1) Standing orders shall include provision—

(a) for general debate on a Bill with an opportunity for members to vote on its general principles,

(b) for the consideration of, and an opportunity for members to vote on, the details of a Bill, and

(c) for a final stage at which a Bill can be passed or rejected.

94.This does not appear to require that Standing Orders should include provision for only the requirements of section 36(1)(a) – (c), but that in regulating its own proceedings by making Standing Orders (as it is required to do under section 22 of the Scotland Act), the Parliament includes provision for a bill to pass through stages which will at least allow the requirements of section 36(1)(a) – (c) to be fulfilled. In turn, this suggests that section 36 would not preclude Standing Orders making provision for additional stages (or requirements) so long as they are neither incompatible with nor would have the effect of removing the requirements of section 36(1).

95.The Committee considers that there is adequate flexibility within the current rules for a four stage process to be used if required and recommends that the Stage 4 procedure proposed should not be progressed.

Any MSP to propose referral back to committee for further Stage 2 consideration

96.Recommendation 6.3 proposes that the Parliament should amend its rules so that any MSP has the right to propose that parts of a bill be referred back to committee for further Stage 2 consideration. (Currently, the right to propose that a bill be referred back to for further Stage 2 consideration is restricted to the member in charge and even they may only refer back up to half of the number of sections in a bill.)

97.The Commission highlights the problems of introducing new material at Stage 3, partly because of the limited time available to consider the implications of new provisions. However, it also recognises the disadvantages of ruling out such amendments altogether, principally in relation to the lack of flexibility to respond quickly to legislative problems that have only come to light during the passage of a bill.At present only the member in charge may propose referring the bill back to committee for further Stage 2 consideration.The Commission recommends extending this power to any MSP, to make it easier for the Parliament at Stage 3 to refer a bill back to committee if substantial new provisions are added by amendment.The actual decision on whether to refer the bill back would remain in the hands of the Parliament as a whole.

98.The Committee notes that extending the right to refer back to Stage 2 to all members would give rise to some practical considerations.For example, it is not clear how such a provision could work if a number of members wanted to propose that different parts of the bill be referred back.It is implicit in the current Rule that referral back to Stage 2 is not a means of opening up the whole bill again.While it is easy to ensure that no more than half the bill is referred back when only one member can make the proposal, it is less so if any member can make such a proposal.Such motions can currently be debated but, if they became more commonplace once the right to lodge them was extended, allowing time for such debates might become an issue.

99.The Committee believes that the recommendation that any member could move that consideration of a bill be referred back for further Stage 2 consideration is too broad.The Committee recommends that further consideration be given to whether this could be restricted to the lead committee convener and committee members, in view of the lead committee’s expertise and interest in a bill.

Presiding Officer to identify Stage 3 amendments which raise new issues

100.In recommendation 6.4 the Commission proposes that the Presiding Officer should be given the power when selecting amendments at Stage 3 to identify amendments which raise new issues and which should be given further committee scrutiny before becoming law.This would not change the Presiding Officer’s selection criteria – such amendments would still be available for the Parliament to debate and decide upon – but agreeing to any such amendments would trigger a referral back to the committee for further Stage 2 consideration (unless the member in charge persuaded the Parliament otherwise).

101.The Committee believes that recommendation 6.4 provides both a stronger presumption in favour of referral back and a simpler mechanism than recommendation 6.3 for achieving it (especially as referral back would take place at the end of amendment proceedings rather than at the start of the debate).However, that recommendation introduces the problem of deciding what is and is not a new issue and whether it is significant or not.The Committee considers that it would not be desirable for the Presiding Officer to be drawn into matters of potential political debate. While there will be some clear cut cases, in others a finer line would have to be drawn: for example, whether a completely new way of addressing an issue that had been raised previously was a new issue or not.

102.The Committee is concerned that any mechanism which creates a greater presumption in favour of new issues being referred back to Stage 2 potentially adds a layer of uncertainty to Stage 3 amendment proceedings.Members may not be sure whether they want to agree to an amendment raising a new issue when they cannot be absolutely certain at that point what effect this will have in terms of whether that decision will lead to a referral back (and so a delay in passing the whole bill).

103.The Committee also considers that, if sufficient time was available to debate the new issue at Stage 3, then there might not be that much difference between that debate and the discussion of the amendment that might have taken place in committee if it had been lodged at Stage 2.

104.The Committee recommends that the Presiding Officer should not be given an additional role in identifying substantial issues which have not been considered at earlier stages of the legislative process and that there should not be any automatic referral back to committee at Stage 3.

Statements on legislative competence

The Commission’s recommendations

Recommendation 6.5: Section 31(1) of the Scotland Act should be amended to require any person introducing a Bill in the Parliament to make a statement that it is (in that person’s opinion) within the Parliament’s legislative competence.

Recommendation 6.6: The Explanatory Notes published with a Bill should give a general account of the main considerations that informed the statement on legislative competence under section 31(1).

105.Section 31 of the Scotland Act states that:

(1) A member of the Scottish Executive in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament.

(2) The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision.

(3) The form of any statement, and the manner in which it is to be made, shall be determined under standing orders, and standing orders may provide for any statement to be published.

106.The Commission recommends two changes.Firstly, the requirement in 31(1) should apply to anyone introducing a bill, not just a Minister.Secondly, the Explanatory Notes accompanying a bill should include some information about the considerations informing the statement of legislative competence.

107.The first of these recommendations would require an amendment to the Scotland Act. The second could be implemented through a Standing Order rule change.

108.The Committee notes the UK Parliament practice where Explanatory Notes to Government Bills provide an outline of the thinking behind the ECHR-compatibility statement required for all such bills under the Human Rights Act and agrees with the Commission that this is a useful precedent, which provides a general public indication of where competence issues with a Scottish Parliament bill arise. The Committee also agrees with the Commission’s view that the requirement for a Presiding Officer statement helps ensure that vires issues are thoroughly considered during a bill’s drafting process.

109.The Committee supports these recommendations.

Appointment of Presiding Officers

The Commission’s recommendation

Recommendation 6.7: Section 19(1) of the Scotland Act should be amended so as to loosen the requirement on the Parliament to appoint a Presiding Officer and deputies at the first meeting of a new session, and to enable additional deputies to be appointed if and when that becomes appropriate.

110.Section 19(1) states that: “The Parliament shall, at its first meeting following a general election, elect from among its members a Presiding Officer and two deputies.” These provisions are then reflected in the Parliament’s Standing Orders.

111.The Commission’s recommendation for more flexibility is intended to address two problems, both of which have actually arisen in the life of the Scottish Parliament. Firstly, additional pressure may be placed on Presiding Officers if one of them is ill for any period of time since, although the deputies can take on the Presiding Officer’s responsibilities if necessary, there is no flexibility to appoint an additional deputy.Secondly, difficulties may arise where a close election result means the parties have difficulty reaching an early decision about releasing one of their members to stand as Presiding Officer.The Commission suggests that the Scotland Act be amended to allow the appointment of temporary additional deputy Presiding Officers when required, and to allow additional time for the appointment of a Presiding Officer – say, within 14 days of the election.

112.The Committee supports this recommendation and notes that it could be implemented by a relatively straightforward amendment in principle, (although it would require changes to the Scotland Act and subsequent Standing Order amendments).

6 Procedural review of Scotland Act

The Commission’s recommendation

Recommendation 6.8: There should be a review of all other provisions in the Act that constrain the Parliament in terms of its procedures or working arrangements to ensure they are proportionate, appropriate and effective.

113.The Commission recognises that there are a number of areas where the Scotland Act makes provision for operational matters: for example, the titles of the various bodies and offices of the Parliament.The Calman report states that the starting point is “a presumption that these provisions of the Act should be retained

unless there is already evidence that that they are causing practical difficulties, or unless some adjustment of the wording might better enable them to achieve their purpose.” However, the report also comments in relation to provisions imposing requirements about what must be included in Standing Orders:

“while we regard them as a reasonable set of general standards for the operation of a devolved Parliament, they may also be capable of improvement.Some of them could be described as unnecessary but harmless, since the Parliament would almost inevitably do in any case what they require. Others, however, may be more questionable.”21

114.The report therefore recommends consideration of any useful alterations to the wording of provisions imposing requirements about what must be included in Standing Orders. It also recommends a review of other aspects of how the Scotland Act creates fixed points for the Parliament in relation to its internal arrangements and procedures. The report makes clear however that it has received no particular evidence about difficulties with the existing provisions.

General approach

115.It is understandable that in 1998, when there was no Parliament in existence, it was felt necessary to provide pointers in the Act for the way that the Parliament should run itself.Ten years on, with an established Parliament, the Committee takes the view that it is appropriate to revisit the Scotland Act provisions and consider whether all are still necessary in principle and whether they had caused any difficulty in practice.

116.The Committee feels that there may be a distinction to be drawn between constitutional principles which should rightly be included in the Parliament’s founding statute and matters of procedure which can appropriately be left to the Parliament itself to determine. Equally, some matters of procedure need a sound legal foundation in the Parliament’s founding statute.The legal foundation may be necessary to—

  • confer status or personality;

  • confer a function which can be enforced or the exercise of which has legal effect;

  • provide a reference point or fixed definition;

  • define and ensure minimum provision.

117.The Committee further notes that the question of whether matters should be provided for in the Scotland Act is distinct from the question of whether or not the Scottish Parliament should be given the power to amend that legislation.Under the current settlement, the Scottish Parliament already has the power to amend certain provisions in the Scotland Act (see paragraph 4 of Schedule 4).The Scottish Parliament can also be given that power by order of the UK Parliament.22In other words, it is not necessary for the legislative base to be placed somewhere other than the Scotland Act in order for the Scottish Parliament to have an element of control over the subject matter of the provision.If it is agreed that the Scottish Parliament can do so then that can be accommodated in the constitutional settlement.

118.The Committee’s original intention was to consult more widely on possible changes to the Scotland Act, with a view to identifying whether any of the provisions impacting on the Parliament’s operation had caused difficulties or were susceptible to improvement.However, with the acceleration of the timetable for amending the Scotland Act since the UK election, the Committee has not been able to undertake such a consultation.Annexe A details the relevant provisions of the Act and discusses the extent to which they appear to provide necessary constitutional or legal safeguards, as well as any problems that have been identified with their operation.

119.The Committee notes that, while a broad ranging review of the Scotland Act in terms of the Parliament’s procedures and working arrangements would be desirable, there is inadequate time to consider this in any detail because of the timetable for the introduction of the Bill.

120.However, the Committee does recommend that section 21 be amended to give greater flexibility over the composition of the SPCB.

7 Members’ interests

Members’ interests

121.In the context of recommendation 6.8, which proposes a review of statutory constraints on the Parliament’s operation, the Commission draws attention to section 39 of the Scotland Act, Members’ Interests.

Background: Calman report

122.The Calman report makes the following observations—

“6.108 Section 39 of the Act is quite prescriptive about the type of members’ interests regime that the Parliament must impose (by means of legislation). We are aware that this caused some difficulties when, in Session 2, the Parliament replaced the earlier Scotland Act transitional order with its own Act.

6.109 A particular problem was that the Scotland Act directly proscribes certain conduct (failure to register or declare certain interests, paid advocacy) and makes it a criminal offence subject to a specified level of penalty. This prevented the Parliament, in passing its own legislation, from providing defences to certain offences in appropriate circumstances – for example, when a member has a reasonable excuse for failing to register an interest within the specified time-limit. The clear implication from the debates at the time was that MSPs accepted the general need for a regime along the lines set out in section 39, but would have liked more flexibility on the details.

6.110 Recent events have shown that the probity and standards of conduct expected of politicians remain an issue of great sensitivity and public importance. All the same, thinking about how best to set and enforce appropriate standards is continually evolving (not least through the work of the Committee on Standards in Public Life) and we believe it is important that the Parliament’s own standards regime is able to evolve and adapt to changing circumstances.

6.111 On this basis, we see a case for some amendment of section 39 of the Act to allow for additional discretion to be exercised in how the key principles of probity that it aims to protect are translated into law. We do not consider it is for us to specify in detail the changes that are required, but suggest that the Parliament itself be invited to discuss this with the UK Government (on the basis of its experience of drafting the Bill that became the 2006 Act).”

Legislative background

123.Section 39 of the Scotland Act prescribes the type of members’ interests regime that the Parliament must impose.In particular, the Scotland Act—

  • requires that provision is made which proscribes certain conduct (failure to register or declare certain interests, paid advocacy) and makes contravention of those provisions a criminal offence; and

  • enables the Parliament to apply its own sanctions for any breach irrespective of whether a person has been found guilty of an offence.

124.Section 39 requires the Parliament to make provision by or under an Act of the Scottish Parliament for the registration and declaration of members' interests and for the rules which members must comply with when taking part in proceedings of the Parliament.This provision must also prohibit members from advocating any matter on behalf of a person by specified means, or urging other members to do so, in return for payment or benefit (paid advocacy).The section also creates a criminal offence where a member is found to be guilty of contravening those provisions. The provisions apply to the Scottish Law Officers even if they are not members of the Parliament.23

125.The Interests of Members of the Scottish Parliament Act 2006 (“the Interests Act”) implements the requirements of section 39. It sets out the requirements for members to register certain financial interests, to declare any registrable interests in relevant Parliamentary proceedings and prohibits paid advocacy.

126.The Interests Act also sets out the criminal sanctions a member may be subject to if found guilty of breaching that Act (replicating and implementing section 39 of the Scotland Act). If it is considered that there has been a breach of the Interests Act which would constitute an offence, it is then a matter for the Procurator Fiscal to determine whether there should be a prosecution.

127.In addition, and again in pursuance of section 39, the Interests Act also sets out the parliamentary sanctions which members may be liable to if they breach its provisions. The sanctions set out in the Interests Act24 can be applied irrespective of whether the member has been found to have committed a criminal offence.

128.If changes are made to section 39, it should also be noted that changes would also be required to the Interests Act, the Scottish Parliamentary Standards Commissioner’s Act 2002 (“the Standards Commissioner Act”), the Parliament’s Standing Orders and the Code of Conduct for MSPs.Any changes to section 39 would therefore involve a substantial amount of work to update the legislative and procedural framework before the Scotland Act changes could be given full effect.

129.The Committee is currently taking forward proposals to amend the Schedule to the Interests Act.These changes, which if approved by the Parliament would come into effect at the start of next session, are intended to clarify and simplify the Schedule based on the following principles—

  • the register of members’ interests should capture significant financial interests;

  • this should be done in the simplest possible way to make it as straightforward as possible for members to comply with the registration requirements; and

  • any changes proposed should be in the public interest and should ensure that transparency and accountability is maintained.

130.However, the changes that can be made are constrained by the issues which the Calman report identified and which are discussed in the next section.

Case for change

131.The Committee agrees with the Calman Commission that some change is required to section 39.The Committee notes that the current Scotland Act provisions effectively make no distinction between a minor or excusable breach of the registration and declaration requirements and a serious, intentional breach.All are criminal offences potentially subject to the same criminal sanctions.This may result in disproportionate attention being given to relatively unimportant breaches of the requirements, undermining the overall credibility of the interests regime.

132.In contrast, the parliamentary sanctions can be much more flexibly calibrated to the gravity of the offence (including in some cases no sanction being imposed at all). Even there, however, there is no scope for the Parliament or the Commissioner to determine that there is a reasonable excuse for a member’s breach of the requirements.

133.The Committee therefore concludes that section 39 requires amendment and has looked at the options for this.

Options for change

134.The three key areas covered by section 39 are—

  • the registration of certain interests;

  • the declaration of certain interests; and

  • the prohibition of paid advocacy.

135.Section 39 also creates an offence if a member participates in proceedings having been banned from participating as a result of a parliamentary sanction (i.e. where the member has breached the registration or the declaration requirements of the Interests Act).This is not discussed in detail here but consideration would be needed at a later stage as to how any changes would apply to this element of section 39.

136.The Committee identified three broad options for amending the Scotland Act so as to provide a greater level of discretion.

Option 1: the Scotland Act does not specify detailed requirements for an interests regime;

Option 2: the Scotland Act specifies requirements for an interests regimes but does not include any criminal offences;

Option 3: the Scotland Act specifies the requirements for an interests regime, and breaches remain a criminal offence, but there is discretion as to the circumstances in which an offence has been committed.

Option 1: the Scotland Act does not specify detailed requirements for Members’ Interests regime

137.Section 39 obliges the Parliament to make provision in relation to the registration and declaration of interests and prohibition of paid advocacy. During the passage of the Scotland Bill through the UK Parliament, it was made clear that the intention was to place a basic duty on the Scottish Parliament.25

138. A mature Parliament might reasonably be expected to take more responsibility for establishing its own interests regime.In that case, it would no longer be necessary for the Scotland Act to specify the detailed requirements of that regime.

139.To enable this, section 39 could be replaced with a general and much less detailed power which principally requires the Scottish Parliament to make provision for a members’ interests regime and enables such a regime to be given effect. Such a power would make it clear that the Parliament is expected to make provision in relation to members’ interests but give the Parliament much greater discretion as to how this would be achieved.

140.This would allow the Parliament more flexibility and enable it to amend its interests regime more comprehensively in response to changing circumstances and expectations.To give full effect to this, further consideration will be needed as to the powers the Parliament may need to implement the regime and enable sanctions, where appropriate.

Option 2: the Scotland Act specifies requirements for an interests regime but does not include any criminal offences

141.A second option would be to amend section 39 so that breaches of the interests regime are no longer criminal offences but exclusively matters for parliamentary sanction. It would then be for the Parliament itself to determine what sanctions, if any, should apply following any breach by a member.

142.The Standards Commissioner would continue to determine in relation to any complaint whether or not there was a breach of the Interests Act.However, since such a breach would no longer be a criminal offence, there need no longer be an automatic requirement for the Standards Commissioner to refer potential breaches to the Procurator Fiscal.26(Evidence of criminal offences such as fraud and bribery could of course still be reported to the Procurator Fiscal by the Standards Commissioner or indeed any other person).

143.The Committee recognises that this option might be interpreted as a weakening of the MSP standards regime.This would in the Committee’s view be a misinterpretation of the way the interests regime operates in practice.The interests regime is a key part of the Parliament’s accountability to its electorate. This is reflected in the fact that the most significant sanction against MSPs who breach the regime is the associated reputational and political damage.Although there have been relatively few breaches since 1999, there have already been cases where MSPs found in breach have felt obliged to resign from positions they held within the Parliament or their party.

144.As well as this, the Committee notes that the sanctions available to the Parliament are significant, covering withdrawal of any rights or privileges as an MSP, including prohibiting participation in proceedings for a given period and withholding of pay and allowances.

145.The Committee further notes that requiring the Parliament to take full responsibility for dealing with breaches of the interests regime would speed up the investigation and reporting of complaints and avoid wasting Procurator Fiscal and police resources for breaches which can properly and effectively be dealt with by the Parliament itself.The Committee has noted that there has never been a prosecution of a breach of the Interests Act (on one occasion only the Procurator Fiscal took action by means of a direct measure).It would remain the case that any action by an MSP which constituted an offence could still be prosecuted.

146.It would also be possible to remove the criminal offence element from some but not all of the areas covered by section 39 (registration of interests, declaration of registrable interests and prohibition of paid advocacy).For example, it might be felt that paid advocacy should continue to be a criminal offence, but not breaches in relation to registration and declaration.

147.The removal of the criminal offence provision would not affect the absolute obligation to register/declare interests.So there would still be no scope for mitigating circumstances to be taken into account in relation to whether or not there was a breach; only in relation to what parliamentary sanctions, if any, were appropriate following a breach.

Option 3: Scotland Act specifies requirements for interests regime and breaches remain a criminal offence but some discretion is introduced

148.As outlined above, there is an absolute requirement in section 39(2) that provision is made requiring members to register financial interests and declare them (in related proceedings).Failure to comply with the requirements can lead to the Parliament imposing sanctions (39(5)) and it is an offence for a member to take part in any proceedings of the Parliament without having complied with those requirements (39(6)).

149.There are, therefore, two separate enforcement regimes to which a member may be subject: one under criminal law and one which is exclusively parliamentary.This is reflected in the provisions of the Interests Act. Section 16 enables the Parliament to exclude from proceedings a member who has failed to comply with the registration requirements and section 17 makes provision as to offences committed for failure to comply with the same requirements.

150.It would be possible to amend section 39 so that a “reasonable excuse” for failure to comply would be available in relation both to the offence provisions and under the parliamentary procedures.

151.In doing this, the Parliament would have to consider whether it wishes the absolute requirement to register and declare to remain.It may be difficult to envisage how a system to require registration and declaration would work effectively without an initial clear and absolute obligation.It might therefore be appropriate for the “reasonable excuse” element to be applied to the breach of compliance provisions (sections 39(5) and (6) and provisions made under them).

152.If this option were adopted, the Committee considers that the Scotland Act need not prescribe in any detail what would constitute a reasonable excuse; this could be left to any provisions made in pursuance of an amended section 39. Consideration would also be needed as to the respective roles of the Commissioner and the Committee in operating any discretion.

153.Further consideration would also be needed as to what, if any, requirements should be placed on the Standards Commissioner to report matters to the Procurator Fiscal, and whether these should differ if there was or was not a reasonable excuse. As outlined above, the Procurator Fiscal could prosecute a criminal offence whether or not it was reported by the Standards Commissioner.

154.Section 39(4) prohibits a member from advocating or initiating any cause or urging another member to advocate or initiate any cause for payment. It is difficult to envisage how this could not be done “knowingly”. Therefore, the Committee does not consider that it would be appropriate to apply any “reasonable excuse” defence to a contravention of this requirement (either in relation to parliamentary or criminal sanctions).

Committee’s preferred option

155.The Committee recommends that the Parliament should be given a greater degree of discretion in how it regulates its members’ interests regime and that any of these options would offer greater flexibility than the current provisions in section 39.

156.The Committee’s preferred option is option 1, which gives an appropriate level of flexibility to the Parliament to regulate its affairs, while maintaining a sufficient safeguard to ensure that a members’ interests regime is in place. If option 1 is to be implemented, the Committee suggests that transitional provision would be needed to continue the existing scheme of regulation, until the Parliament was able to consider in detail its own provision, including what should be retained in the way of criminal offences and whether there should be provision for “reasonable excuse”.

Annexe A: Scotland Act provisions relevant to parliamentary procedures

This Annexe identifies the specific provisions in the Scotland Act which the Committee considers are relevant to recommendation 6.8 and which it has considered as outlined in the main report.

Provisions identified in Calman report

Section 19 concerns the election of Presiding Officers.

The Committee agrees, as set out in its main report, that the Parliament should have more flexibility in the timing of the Presiding Officer’s appointment and in the number of deputies.

The Committee also notes that subsection 19(7) – “The validity of any act of the Presiding Officer or a deputy is not affected by any defect in his election” – can already be modified by an Act of the Scottish Parliament since it is exempt from the schedule 4 entrenchment of the Scotland Act.

Otherwise, it appears appropriate and necessary to provide in the Scotland Act for the status and legal personality of the Presiding Officer (and any deputies).Provision must be made for the continuation of that office while a particular Parliament is constituted. It would also seem necessary, given the role of the Presiding Officer, to ensure that the office is filled as the first act of an elected Parliament.

The Calman report raises general issues about the lack of scope for the Parliament to vary the titles of its principal offices.This applies to the Presiding Officer, the Clerk, the SPCB etc.It may be felt that it is important to provide continuity in the title of these offices, on which legal functions are conferred, so that there is a clear reference point. As has been seen by the change in common parlance of the Scottish Executive to the Scottish Government, it is possible to change names for everyday use while retaining the original legal terminology.

However, should the Parliament wish to make a permanent change to the titles of any of its principal officers, this would be an opportunity to make that case.It should be noted that care would have to be taken to change all statutory and non statutory references and for this reason, and the risk of confusion and additional expense, it would be undesirable to make such changes other than exceptionally.

Section 20 concerns the Clerk of the Parliament.

The Committee recognises that the Clerk has functions under the Scotland Act itself and under devolved and reserved legislation. It is clearly useful to be able to identify the Clerk’s office as the principal administrative office of the Parliament in legislation.This section makes fairly minimal provision as to the status of the Clerk and of other persons able to perform his functions.

Section 21 concerns the Scottish Parliamentary Corporate Body.

In general, the Committee considers that this section and the associated schedule 2 provide necessary constitutional safeguards and are helpful in setting out clearlythe powers of the corporate body.Most of the provisions arefairly broad.

The Committee notes that section 21(5) and paragraphs 4(1) to (3) and 6(1) of schedule 2 are excepted from the schedule 4 entrenchment of the Scotland Act, so amendment of these is already possible.These concern property and liabilities of the SPCB; powers of the SPCB; and the validity of acts of the SPCB.

However, the Committee agrees with the Commission that the Parliament should be given greater flexibility over the composition of the corporate body (section 21(2)).It seems important that the Presiding Officer should always be a member of the corporate body.Restriction to four members fits the current number of major political parties but this may not always be the case.It would perhaps be preferable to set a ceiling on the number of members so that the SPCB retains its essential character as representative of the major party interests and does not become unwieldy. It may then be helpful to give the Parliament autonomy to decide the number of members within that limit.The Committee recommends that section 21 be amended to give greater flexibility over the composition of the SPCB.

Section 22 and Schedule 3 concern the Parliament’s Standing Orders:

Section 22(1) is a bare enabling power and section 22(2) simply gives effect to Schedule 3 .

The purpose of Schedule 3 is to provide minimum guarantees as to how the Parliament will operate which cannot be circumvented by the Parliament’s own motion.These underpin the operation of the Parliament as an accessible and accountable body.Most of the detail is left for the Parliament to prescribe in Standing Orders.In most cases, therefore, the Committee has not identified any need for change.Two possible changes are discussed in the Calman report:

Paragraph 5 provides for political balance in relation to the Presiding Officer and deputies.However, in relation to this, the Commission comments that “while most people will agree on the importance of ensuring that the Presiding Officers are seen to be politically impartial when serving in that capacity, it is less clear that the requirement in paragraph 5 of Schedule 3 is the best means to achieve this.”

The Committee recommends the retention of the current provision which operates adequately.

Paragraph 7 concerns Crown consent in relation to Bills.The Committee agrees that this provision is appropriate to remain in the Act.It notes the Commission’s comment that this paragraph “sets as the test for whether a Bill requires Crown consent to be signified in the Scottish Parliament according to whether such a Bill would require such signification in the UK Parliament – a test that, taken literally, is almost impossible for the Scottish Parliament to apply.We see no reason why an equivalent outcome could not be achieved more simply and directly – for example by requiring the Parliament to ensure that Crown consent is appropriately signified in any case where the Presiding Officer, having consulted the Palace, considers that appropriate.”

The purpose of thisparagraph is to ensure that respect is paid to the monarch’s interests in the same way as at Westminster.Although the Commission suggests that the test, taken literally, is almost impossible for the Scottish Parliament to apply, officials are not aware of it causing any problems in practice.Whether Crown consent is required is simply checked with Westminster before a piece of legislation is introduced.

The Committee considers that the current provisions should be retained.

Sections 23 – 26 concern the power to call for witnesses and documents.

The Commission suggests in relation to section 24 thatthe notice to be given of a requirement to attend proceedings or provide documents is a very fixed provision for the Parliament’s internal arrangements

No specific difficulties have been identified with these sections to date. As yet sections 23-25 have not been used although section 26 concerning the administration of an oath to a person giving evidence has been used on a small number of occasions. Section 24(2) on service of notices is already a matter for the Parliament since section 24(2) is not entrenched by Schedule 4.While the rules have not yet been tested, one difficulty which may arise is service of a notice on recalcitrant witnesses. Section 24(2) provides for notice to be given only by registered or recorded delivery post. A witness could therefore seek to avoid service by not being available to sign for the notice and not collecting it from the post office. Unlike in Court proceedings, there is no power to serve by Sheriff Officers. This could be problematic given this power would only be used where a witness was unwilling to give evidence voluntarily. There may be other issues as yet unidentified, however the Parliament already has power to amend this subsection as and when it sees fit.

The remainder of sections 23 to 26 are entrenched by schedule 4. The power to compel witnesses to attend the Parliament on sanction of a criminal nature for failure to do so is a serious power and one where the extent of the Parliament’s powers need to be very clearly set out in the Scotland Act, since these sections enable the Parliament to impose obligations and criminal sanctions on members of the public including (potentially) those outside Scotland.

Section 36 concerns the stages of Bills in the Parliament.

It seems clear that there needs to be a basic legislative basis in the Parliament’s founding statute about how it passes legislation.This is the Parliament’s central function, delegated from the Westminster Parliament, and some guarantee is required for those who will be subject to the Parliament’s laws as to how it will be required to carry out the law making function.

Section 36 only sets out the basic rules. Processes which accommodate those rules can be decided by the Parliament as long as the fundamental elements are respected.

If it were considered by the Parliament that the fundamental components of the process should be something other than the existing three stage process set out in section 36, other suggestions could be put forward for a permanent change. However, it would appear that some form of constitutional guarantee within the Scotland Act is needed.

Equally, it may be possible to amend the specific wording of section 36 if there is evidence that the existing wording creates problems. For example, during the committee’s inquiry into Standing Orders rule 9.7.6, some ambiguity has been noted about whether in 36(1) “Standing orders shall include provision for the consideration of…the details of a Bill..” means there has to be consideration, or simply that standing orders have to allow for the possibility of consideration.

Provisions not specifically highlighted by Calman report

The Committee also notes that certain other provisions not specifically referred to in the Commission’s report nonetheless create fixed points which to an extent constrain the Parliament’s procedures and working arrangements.

In general the Committee considers that these were also sections which should be retained as matters of constitutional principle. The Committee does not propose any changes to these.

Section 2 which makes provision in relation to ordinary general elections;

Section 3 which makes similar provision for extraordinary general elections;

Section 27 which concerns the participation of the Scottish Law officers in parliamentary proceedings;

Section 46 which concerns the choice of First Minister;

Section 70(3) which concerns consideration by the Parliament of parliamentary accounts and of reports on such accounts;

Section 74(5) which provides that motions for tax-varying resolutions may only be moved by a member of the Scottish Executive.;

Section 83(1) which provides that the Parliament must ensure that information concerning sums paid as salaries, allowances, pensions or gratuities to members of Parliament or members of the Scottish Executive is published for each financial year.

Section 84 which concerns oaths to be taken by members of the Parliament and of the Scottish Executive.

Section 91 which concerns maladministration.

Annexe B: Letter from the Presiding Officer on behalf of the Parliamentary Bureau

At the meeting of the Parliamentary Bureau held on 8 December, Bureau Members discussed the attached paper on how the recommendations contained in the final report of the above [Calman] Commission might be progressed.The Bureau agreed with the recommended approach outlined in the paper. I am therefore writing to you on behalf of the Bureau to ask the Standards, Procedures and Public Appointments Committee to consider the Commission’s recommendations as outlined in Table A.

It might be helpful to you if I outline the Bureau’s thinking on how this might be undertaken.We would be grateful if the Committee could, in the first instance, report in principle on the recommendations, identify where and how further, more detailed work might need to be undertaken, and to what timeframe.We would then envisage this initial report coming before the Parliament for debate and resolution on the next steps.

I would be grateful if you provide an indication in due course of how long the Committee might take to deliver the initial report to Parliament.

Alex Fergusson
Presiding Officer
10 December 2009

Parliamentary Bureau Paper

COMMISSION ON SCOTTISH DEVOLUTION (CALMAN) – PROPOSED ACTION

Purpose

1.Further to the Bureau’s initial consideration of the recommendations of the Commission on Scottish Devolution, this paper provides an update on progress and seeks the Bureau’s views on further action.

2.Officials have met with each business manager to discuss how best to proceed; initial discussions have been held with the House of Commons lead official on Calman; the Presiding Officer has met with the Secretary of State to discuss issues of common interest and the UK Government has published its formal response.

Categorisation

3.The final recommendations of the Commission are listed in the annex to the paper, categorised as follows:

  • Table A: Recommendations either completely for the Parliament alone to consider or those recommendations relating to procedural matters requiring amendments to the Scotland Act on which the UK Government is seeking the Parliament’s views.Also, recommendations on joint working of a more formal nature.

  • Table B: Recommendations that are relevant to the Parliament but require discussion and agreement with other organisations

  • Table C: Recommendations that fall to be considered in the first place by the political parties.

Proposed Action

Table A

4.The Standards, Procedures and Public Appointments Committee seems to be the appropriate parliamentary body to review these recommendations.The Committee is responsible for recommending standing order changes to the Parliament on those matters where we have sole locus, and it would appear logical that the Committee should also consider those matters where the UK Government is seeking the parliament’s view.This would enable all those with an interest in these matters, both in and outwith the Parliament, to submit their views to the committee for consideration in their report.The full Parliament would also get the opportunity to debate the report once published in the usual fashion.

5.This approach is also being taken in the House of Commons with the Speaker planning to write to their own Procedure Committee on those recommendations directly pertaining to their standing orders – LCM procedure etc.

Table B

6.These recommendations relate to working practices and liaison arrangements, rather than parliamentary procedure.It is suggested that these matters are pursued jointly with the Scottish Government, the UK Parliament and the UK Government and progress reported to the Bureau on a regular basis.As to process, it is suggested that the Strategy and Development Office, which is responsible for constitutional matters within the SPCB, should take the lead in this work on behalf of the Parliament. Their first task would be to establish the joint working mechanism required to pursue these recommendations.

Table C

7.These recommendations would have an impact on the Parliament, should further or different powers be devolved. That will be easier to assess in due course once the position is clearer.

Recommendations

8.The Bureau is invited to:

(i)offer their views on the categorisation of the recommendations

(ii)agree that the recommendations contained in table A be referred to the Standards, Procedures and Public Appointments Committee for their consideration

(iii)agree that the Strategy and Development Office leads for the Parliament on discussions with other institutions on the recommendations contained in table B, reporting regularly to the Bureau on progress

(iv)note the position on table C and offer any comments.

TABLE A – FOR REFERRAL TO STANDARDS, PROCEDURES AND PUBLIC APPOINTMENTS COMMITTEE

No.

Recommendation

4.3

The UK Parliament and Scottish Parliament should have mechanisms to communicate with each other:

a. There should be detailed communication about legislativeconsent motions (LCMs), and in particular if a Bill subject toan LCM is amended such that it is outside the scope ofthe LCM.

b. A mechanism should exist for each Parliament to submit views to the other, perhaps by passing a motion where appropriate.

4.5

A standing joint liaison committee of the UK Parliament and Scottish Parliament should be established to oversee relations and to consider the establishment of subject specific ad hoc joint committees.

4.6

Committees of the UK and Scottish Parliaments should be able to work together and any barriers to this should be removed.

a. Any barriers to the invitation of members of committees of one Parliament joining a meeting of a committee of the other Parliament in a non-voting capacity in specified circumstances should be removed.

b. Any barriers to committees in either Parliament being able to share information, or hold joint evidence sessions, on areas of mutual interest, should be removed.

c. Mechanisms should be developed for committees of each Parliament to share between them evidence submitted to related inquiries.

4.7

To champion and recognise the importance of interaction between the Parliaments and Governments:

a. UK and Scottish Government Ministers should commit to respond positively to requests to appear before committees of the others’ Parliament.

b. The UK Government Cabinet Minister with responsibility for Scotland (currently the Secretary of State for Scotland) should be invited to appear annually before a Scottish Parliament committee comprised of all committee conveners, and the First Minister should be invited to appear annually before the House of Commons Scottish Affairs Committee.

4.8

Shortly after the Queen’s Speech the Secretary of State for Scotland (or appropriate UK Government Cabinet Minister), should be invited to appear before the Scottish Parliament to discuss the legislative programme and respond to questions in a subsequent debate. Similarly, after the Scottish Government’s legislative programme is announced the First Minister should be invited to appear before the Scottish Affairs Committee to outline how Scottish Government legislation interacts with reserved matters.

4.9

Where legislation interacts with both reserved and devolved matters there should be continued cooperation:

a. For any UK Parliament Bill which engages the Sewel Convention on a matter of substance, consideration should be given to including one or more Scottish MPs on the Public Bill Committee, who should then be invited, as appropriate, to meet the Scottish Parliament committee scrutinising the legislative consent memorandum.

b. A Scottish Minister should as appropriate be asked to give evidence to the UK Parliament committee examining Orders made under the Scotland Act.

4.10

Either the Scottish Parliament or either House of the UK Parliament should be able, when it has considered an issue where its responsibilities interact with the other Parliament’s, to pass a motion seeking a response from the UK or Scottish Government. The relevant Government in each case should then be expected to respond as it would to a committee of its own Parliament.

4.15

A new legislative procedure should be established to allow the Scottish Parliament to seek the consent of the UK Parliament to legislate in reserved areas where there is an interaction with the exercise of devolved powers.

4.18

Closer involvement between Scottish MEPs and the Scottish Parliament is needed, and Scottish MEPs should be invited to attend, and should attend, the Scottish Parliament European and External Relations Committee regularly on a non-voting basis. The Committee should schedule its meetings to facilitate their regular attendance.

6.1

In relation to the Parliament’s committee system:

a. The structure of dual-purpose committees established both to carry out investigative inquiries and to undertake the detailed scrutiny of legislation should be maintained.

b. The level of turnover of committee memberships during a session should be minimised, in order to enable committee members to build expertise.

c. Committees should have the facility to establish subcommittees to address temporary problems of legislative overload, without this requiring the prior approval of the Parliament as a whole.

6.2: The current three-stage Bill process should be changed to a four-stage process, with Stage 3 becoming limited to a second main amending stage, taken in the Chamber, while the final debate on whether to pass the Bill would become Stage 4.
6.3: The Parliament should amend its rules so that any MSP has the right to propose, at the conclusions of the Stage 3 amendment proceedings, that parts of a Bill be referred back to committee for further Stage 2 consideration.
6.4: The Presiding Officer should be able to identify in advance of Stage 3 amendments that (in his view) raise substantial issues not considered at earlier stages. If, at the end of the amendment proceedings, any such amendment has been agreed to, relevant provisions of the Bill should be referred back to committee for further Stage 2 consideration unless the Parliament decides otherwise (on a motion that may be moved only by the member in charge of the Bill).

6.5:

Section 31(1) of the Scotland Act should be amended to require any person introducing a Bill in the Parliament to make a statement that it is (in that person’s opinion) within the Parliament’s legislative competence.

6.6:

The Explanatory Notes published with a Bill should give a general account of the main considerations that informed the statement on legislative competence under section 31(1).

6.7:

Section 19(1) of the Scotland Act should be amended so as to loosen the requirement on the Parliament to appoint a Presiding Officer and deputies at the first meeting of a new session, and to enable additional deputies to be appointed if and when that becomes appropriate.

6.8:

There should be a review of all other provisions in the Act that constrain the Parliament in terms of its procedures or working arrangements to ensure they are proportionate, appropriate and effective.

TABLE B - ISSUES REQUIRING DISCUSSION AND AGREEMENT ACROSS INSTITUTIONS

No.

Recommendation

2.1

The Scottish Parliament and UK Parliament should confirm that each agrees to the elements of the common social rights that make up the social Union and also the responsibilities that go with them.

4.1

In all circumstances there should be mutual respect between the Parliaments and the Governments, and this should be the guiding principle in their relations.

4.11

There should be a greater degree of practical recognition between the Parliaments, acknowledging that it is a proper function of members of either Parliament to visit and attend meetings of relevance at the other; and their administrative arrangements should reflect this.

TABLE C – RECOMMENDATIONS TO BE INITIALLY CONSIDERED BY POLITICAL PARTIES

No.

Recommendation

3.1

Part of the Budget of the Scottish Parliament should now be found from devolved taxation under its control rather than from grant from the UK Parliament. The main means of achieving this should be by the UK and Scottish Parliaments sharing the yield of income tax.

a. Therefore the Scottish Variable Rate of income tax should be replaced by a new Scottish rate of income tax, collected by HMRC, which should apply to the basic and higher rates of income tax.

b. To make this possible, the basic and higher rates of income tax levied by the UK Government in Scotland should be reduced by 10 pence in the pound and the block grant from the UK to the Scottish Parliament should be reduced

accordingly.

c. Income tax on savings and distributions should not be devolved to the Scottish Parliament, but half of the yield should be assigned to the Scottish Parliament’s Budget, with a corresponding reduction in the block grant.

d. The structure of the income tax system, including the bands, allowances and thresholds should remain entirely the responsibility of the UK Parliament

3.2

Stamp Duty Land Tax, Aggregates Levy, Landfill Tax and Air Passenger Duty should be devolved to the Scottish Parliament, again with a corresponding reduction in the block grant.

3.4

The block grant, as the means of financing most associated with equity, should continue to make up the remainder of the Scottish Parliament’s Budget but it should be justified by need. Until such times as a proper assessment of relative spending need across the UK is carried out, the Barnett formula, should continue to be used as the basis for calculating the proportionately reduced block grant.

3.5

This system will require a strengthening of the inter-governmental arrangements to deal with finance.

a. The present Finance Ministers’ Quadrilateral Meeting should become a Joint Ministerial Committee on Finance (JMC(F)), and should meet regularly on a transparent basis to discuss not just spending but taxation and macroeconomic policy issues.

b. HMRC should advise Scottish Ministers in relation to those devolved taxes it is tasked with collecting and their responsibilities in relation to income tax and should

account to them for the operation of these Scottish taxes. Scottish Ministers should be consulted on the appointment of the Commissioners of HMRC.

c. All the relevant spending or grant calculations done by HMRC and HM Treasury should be audited by National Audit Office (NAO) which should publish an annual report on the operation of the funding arrangements, including reporting to the new JMC(F) and to the Scottish Parliament

3.6

These changes should be introduced in a phased way, step by step, to manage the risks of instability in public finances and of windfall gains or adverse shocks to the Scottish Budget.

3.7

The Scottish Ministers should be given additional borrowing powers.

a. The existing power for Scottish Ministers to borrow for short term purposes should be used to manage cash flow when devolved taxes are used. Consideration should be

given to using the power in the Scotland Act to increase the limit on it if need be.

b. Scottish Ministers should be given an additional power to borrow to increase capital investment in any one year.There should be an overall limit to such borrowing, similar

to the Prudential regime for local authorities. The amount allowed should take account of capacity to repay debt based on future tax and other receipts. Borrowing should be from the National Loans Fund or Public Works Loans Board.

4.2

As a demonstration of respect for the legislative competence of the Scottish Parliament, the UK Parliament should strengthen the Sewel Convention by entrenching it in the standing orders of each House.

4.4

The UK Parliament should end its self-denying ordinance of not debating devolved matters as they affect Scotland, and the House of Commons should establish a regular “state of Scotland” debate.

4.12

The Joint Ministerial Committee (JMC) machinery should be enhanced in the following ways:

a. The primary focus should be on championing and ensuring close working and cooperation rather than dispute resolution (though it will be a forum to consider the latter as well).

b. There should be an expanded range of areas for discussion to provide greater opportunities for cooperation and the development of joint interests.

c. There should be scope to allow issues to be discussed at the appropriate level including the resolution of areas of disagreement at the lowest possible level.

4.13

The JMC should remain the top level, and meet in plenary at least annually, but most importantly to a longstanding timetable. In addition:

a. JMC(D) and JMC(E) should continue in much the same form, but with more regular meetings and to a longstanding timetable. There should be an additional JMC(Finance) which subsumes the role of the Finance Quadrilateral.

b. Sitting below the JMC(D), JMC(E) and JMC(F) meetings should be a senior officials level meeting, JMC(O).

4.14

Where inter-governmental ministerial meetings are held to discuss the overall UK position in relation to devolved policy areas, the relevant Secretary of State should generally chair these meetings on behalf of the overall UK interest, with another relevant UK Minister representing the policy interests of the UK Government in relation to those parts of the UK where the policy is not devolved.

4.16

In the development of the UK Government policy position in relation to the EU:

a. Early and proactive engagement by the relevant UK Government department with its Scottish Government counterpart should be a matter of course.

b. In addition Scottish Ministers and the relevant Scottish Parliament committee should become more proactive in identifying EU issues of interest to Scotland at an early stage, and taking the initiative accordingly.

c. The JMC(E) should continue to be used to determine the UK Government position on EU matters.

4.17

To ensure Scottish Ministers are visibly engaged with EU business affecting their interests:

a. When a request is received there should be a presumption that Scottish Ministers are accepted as part of the UK delegation where EU matters which cover devolved areas are for discussion;

b. When Scottish Ministers request to speak in support of the agreed UK Government line there should be a presumption that this is granted wherever practicable.

4.19

The JMC process should be subject to greater Parliamentary scrutiny, and have greater public transparency:

a. Agendas and timelines should be published in advance of each JMC, JMC(E), JMC(D) or JMC(F) meeting, and a communiqué from each should be issued.

b. After each full JMC meeting the First Minster should make a statement to the Scottish Parliament, and the Prime Minister, or UK Government Cabinet Minister with responsibility for Scotland, should make a statement to the UK Parliament.

c. An annual report of the JMC should be prepared, and laid by each Government before its Parliament, and it should be scrutinised by the UK Parliament and the Scottish Parliament.

4.20

Scottish MPs should actively demonstrate appropriate oversight and stewardship of the constitution by way of regular scrutiny of the shape and operation of the devolution settlement

4.21

The responsibility for appointing, or approving appointments of, senior civil servants to senior posts in the Scottish Government should be delegated by the Prime Minister to the Head of the Home Civil Service, acting on the advice of the UK Civil Service Commissioners

4.22

The Commission has heard of a lack of understanding of devolution within some UK Government departments, and this should be addressed by reinvigorated training and awareness raising programmes.

4.23

The Civil Service Codes should be amended to recognise the importance of cooperation and mutual respect

5.1

The powers of the Secretary of State for Scotland relating to the administration of elections to the Scottish Parliament should be devolved.

5.2

There should be a single definition of each of the expressions “charity” and “charitable purpose(s)”, applicable for all purposes throughout the United Kingdom. This should be enacted by the UK Parliament with the consent of the Scottish Parliament.

5.3

A charity duly registered in one part of the United Kingdom should be able to conduct its charitable activities in another part of the UK without being required to register separately in the latter part and without being subject to the reporting and accounting requirements of the regulator in that part.

5.4

The responsibility for the appointment of the Scottish member of the BBC Trust should be exercised by Scottish Ministers, subject to the normal public appointments process.

5.5

In recognition of the close interaction of the Health and Safety Executive’s reserved functions with areas of devolved policy, a closer relationship between the HSE in Scotland and the Scottish Parliament should be developed.

5.6

Whilst retaining the current reservation of immigration, active consideration (supported by inter-governmental machinery) should be given to agreeing sustainable local variations to reflect the particular skills and demographic needs of Scotland.

5.7

In dealing with the children of asylum seekers, the relevant UK authorities must recognise the statutory responsibilities of Scottish authorities for the well-being of children in Scotland.

5.8

The Secretary of State for Scotland should, in consultation with Scottish Ministers, more actively exercise his powers of direction under the Crown Estate Act 1961 and, having consulted Scottish Ministers, should give consideration to whether such direction is required immediately

5.9

The appointment of a Scottish Crown Estate Commissioner should be made following formal consultation with Scottish Ministers.

5.10

Funding for policy relating to animal health should be devolved whilst responsibility for funding exotic disease outbreaks should be retained at a UK level.

5.11

That the Scottish Parliament should not have the power to legislate on food content and labelling in so far as that legislation would cause a breach of the single market in the UK by placing a burden on the manufacturing, distribution and supply of foodstuffs to consumers, and Schedule 5 of the Scotland Act should be amended accordingly.

5.12

The regulation of all health professions, not just those specified in the Scotland Act, should be reserved.

5.13

The regulation of airguns should be devolved to the Scottish Parliament.

5.14

Responsibility for those aspects of the licensing and control of controlled substances that relate to their use in the treatment of addiction should be transferred to Scottish Ministers.

5.15

Regulation-making powers relating to drink-driving limits should be transferred to Scottish Ministers.

5.16

The power to determine the level of the national speed limit in Scotland should be devolved.

5.17

The effectiveness of the agreement [on marine planning] reached by the UK and Scottish Governments should be kept under review by the intergovernmental machinery, and nature conservation should be devolved to the Scottish Parliament at the earliest appropriate opportunity, taking into account the experience and evidence to be gained from the operation of the regime set out in the respective Marine Bills.

5.18

Research Councils UK should re-examine its approach to funding so that Scottish institutions [such as the Scottish Agricultural College] delivering a comparable function to institutions elsewhere in the UK have access to the same sources of research funding, with the aim of ensuring that the effective framework for research that has been established

across the UK is not jeopardised.

5.19

There should be scope for Scottish Ministers, with the agreement of the Scottish Parliament, to propose changes to the Housing Benefit and Council Tax Benefit systems (as they apply in Scotland) when these are connected to devolved policy changes, and for the UK Government – if it agrees – to make those changes by suitable regulation.

5.20

A formal consultation role should be built into DWP’s commissioning process for those welfare to work programmes that are based in, or extend to, Scotland so that the views of the Scottish Government on particular skills or other needs that require to be addressed in Scotland are properly taken into account.

5.21

The Deprived Areas Fund should be devolved to the Scottish Parliament given the geographic nature of the help it is designed to provide and the fit with the Scottish Government’s wider responsibilities.

5.22

As part of its considerations as to future reform of the Social Fund, the UK Government should explore devolving the discretionary elements of the Fund to the Scottish Parliament.

5.23

The UK Insolvency Service, with appropriate input from the relevant department(s) of the Scottish Government, should be made responsible for laying down the rules to be applied by insolvency practitioners on both sides of the border. This should be achieved by UK legislation.

5.24

The interpretation provision in relation to “social security purpose” in the Scotland Act should be amended to make it clear that the reservation refers to social security purposes related to the type of provision provided by the UK Department for Work and Pensions.

Annexe C: Letter from the Convener of the European and External Relations Committee

Thank you for your letter of 14 April in which you invited the European and External Relations Committee to consider Recommendation 4.18 of the Calman Commission:

Closer involvement between Scottish MEPs and the Scottish Parliament is needed, and Scottish MEPs should be invited to attend, and should attend, the Scottish Parliament European and External Relations Committee regularly on a non-voting basis. The Committee should schedule its meetings to facilitate their regular attendance.

The Committee considered the recommendation at its meetings of 1 and 15 June. In advance of this we asked the European Officer to ascertain the views of MEPs and he was able to do this with five of the six Scottish MEPs. Their views are included in the paper which went to Committee on 1 June and which I attach for your information.

The views of the European and External Relations Committee can be summarised as follows:

1.The Committee’s inquiry into the Impact of the Treaty of Lisbon has identified the need for closer links between MEPs and the Parliament and particularly the European and External Relations Committee. The Treaty of Lisbon gives the European Parliament new powers in areas that are vital to Scotland’s interests, such as the Common Agricultural Policy and the Common Fisheries Policy, and it is important that we bolster links with MEPs.

2.However, we do not believe that the Calman recommendation is the most effective way to achieve this. Making MEPs effectively (non-voting) members of the Committee raises a number of difficulties. There is an issue of precedence with regard to Scottish Parliament committee membership and we ourselves have already been contacted by Cosla suggesting that, if MEPs became committee members, its elected representatives would seek membership also.

3.There are also very significant practical difficulties in MEPs attending European and External Relations Committee meetings, even via video-conference. These were noted in the responses by MEPs in that even those who were positive about the proposal foresaw difficulties in putting them into practice. The Scottish Parliament ‘slot’ for Committees on Tuesdays/Wednesdays does not fit well with the European Parliament schedule. In addition MEPs are very busy representatives, having ‘constituencies’ that cover the whole of Scotland, and a number of Parliamentary roles, particularly post-Lisbon.

4.Our meeting of 1 June provides a good example of the difficulties. We originally approached four MEPs to participate by video-conference. One declined, one accepted but then was called away on an external European Parliament mission, another accepted, but had to withdraw at the last minute to fulfil their role as Rapporteur for the Parliament on the reform of the CAP. We were left with one MEP.

5.The European and External Relations Committee would propose therefore to meet the legitimate demand for closer links with Scottish MEPs in ways other than those suggested by Calman and without offering voting rights.

6.Principally we would like to offer Scottish MEPs an ‘Open Door’ policy in which we would accept suggestions from MEPs for our agenda (subject of course to the usual discretion of the Convener). If an MEP-inspired issue appears on the agenda, the MEP will be invited to the meeting, technically in the role of a witness.

7.This should help MEPs to assist the Parliament in picking up European issues at an early stage, which is one of the key motives behind the Calman recommendation.

8.The Committee is also proposing to move forward with its programme of regular video-conferences with MEPs and to regularise it. We are proposing that for every fourth committee meeting a ‘slot’ would be created for an MEP to dialogue with the Committee. We are assuming that the Scottish MEPs would arrange to rotate this amongst themselves. This process would facilitate regular information sharing.

9.In addition we would like to build on the success of the analysis of the European Commission’s Work Programme that the Committee undertakes for the Parliament as a whole. We would propose in future to hold an annual committee meeting in Brussels with all MEPs to jointly analyse the Work Programme. We recognise that this would require an amendment to standing order 12.3.2 and would like you to consider this in respect of the European and External Relations Committee.

10.The Committee also proposes that the procedures outlined above are covered in the Legacy Paper for its successor so that they have some longevity.

11.One of the other issues to emerge from the information from MEPs was the lack of contact that they have with the Parliament’s subject committees, which is of course important in terms of influencing the development of specific European issues, for example the reform of CAP as mentioned above. We would hope, by employing the techniques set out above, to be able to act as a conduit with subject committees, with whom we already have a lot of contact on European issues, of course.

12.I should add for completeness that one of the issues that the Committee became aware of through this process of consultation with MEPs, was the lack of up-to-date information that MEPs possess on the work of the European and External Relations Committee or indeed the activities of subject committees of the Parliament. From our perspective we will be taking a number of direct steps to address this, including possibly an annexe to the European Officer’s Brussels Bulletin to cover the Committee’s work.

13.I should also probably take this opportunity to alert you to the fact that the Committee’s final report on ‘The Impact of the Treaty of Lisbon on Scotland’ is likely to suggest a radical shake-up in the way that European issues are handled in the Parliament and that this would inevitably have implications for procedures, including the standing orders. Our intention is that the report will start a debate within the Parliament on the handling of European issues and I would of course be happy to brief you at an appropriate time.

I hope that this submission assists you in the consideration of this particular Calman recommendation and if you require any further information, do please contact me.

Irene Oldfather
Convener
15 June 2010

Annexe D: Extract from Minutes

2nd Meeting, 2010 (Session 3), Tuesday 9 February 2010

Commission on Scottish Devolution (in private): The Committee considered a note by the Clerk on the recommendations of the Commission on Scottish Devolution and agreed to consider the recommendations further in private at future meetings. The Committee agreed to report by September.

4th Meeting, 2010 (Session 3), Tuesday 23 March 2010

Commission on Scottish Devolution (in private): The Committee considered a note by the Clerk and agreed its approach to recommendations 4.7, 4.8 and 4.10 of the Final Report of the Commission on Scottish Devolution.

5th Meeting, 2010 (Session 3), Tuesday 20 April 2010

Commission on Scottish Devolution (in private): The Committee considered a note by the Clerk and agreed its approach to recommendations 6.2, 6.3 and 6.4 of the Final Report of the Commission on Scottish Devolution.

6th Meeting, 2010 (Session 3), Tuesday 11 May 2010

Commission on Scottish Devolution (in private): The Committee considered a note by the Clerk and agreed its approach to recommendation 6.8 and paragraphs 6.108-6.111 of the Final Report of the Commission on Scottish Devolution.

8th Meeting, 2010 (Session 3), Tuesday 22 June 2010

Commission on Scottish Devolution (in private): The Committee considered a note by the Clerk and agreed its approach to recommendations 4.5, 4.6 and 4.18 of the Final Report of the Commission on Scottish Devolution.

9th Meeting, 2010 (Session 3), Tuesday 14 September 2010

Commission on Scottish Devolution (in private): The Committee considered a draft report.

10th Meeting, 2010 (Session 3), Tuesday 21 September 2010

Commission on Scottish Devolution (in private): The Committee considered and agreed a draft report.


Footnotes:

1 The Scotland Act 1998 (c.46).Available online at http://www.opsi.gov.uk/acts/acts1998/ukpga_19980046_en_1

5 Scottish Parliament Procedures Committee 3rd Report, 2003 (Session 1).The Founding Principles of the Scottish Parliament (SPP 818), paras 591-595.

6 House of Commons Scottish Affairs Committee, 4th Report 2006 (Session 2005-06).The Sewel Convention: the Westminster Perspective (HC 987).Available online at: http://www.publications.parliament.uk/pa/cm200506/cmselect/cmscotaf/983/98302.htm

7 House of Commons Scottish Affairs Committee, 3rd Report 2010 (Session 2009-10).Commission on Scottish Devolution (HC 255).Available online at: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmscotaf/255/25502.htm

8 McKay et al. (2004) Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 23rd Edition, page 108. London: LexisNexis

9 The Data Protection Act 1998 applies to the UK Parliaments (s.63A of that Act) except where required to avoid infringing Parliamentary privilege (s.35A).

10 EUROPA (Official Website of the European Union).Available online at: http://europa.eu/lisbon_treaty/faq/index_en.htm#3

11 Letter from the Convener of the European and External Relations Committee, 15 June 2010

12 Scottish Parliament European and External Relations Committee, 4th Report (Session 3). Inquiry into the Impact of the Treaty of Lisbon on Scotland (SPP 469).Available online at: http://www.scottish.parliament.uk/s3/committees/europe/reports-10/eur10-04-01.htm

13 Somerville v Scottish Ministers 2008 H.R.L.R In this case it was claimed that a breach of Convention rightshad occurred when 4 prisoners had been removed from association while in prison. The House of Lords held that proceedings brought for breaches of Convention Rights under the Scotland Act were not subject to the one year time limit which would apply if they were brought under the Human Rights Act 1998. In consequence of this decision,a UK Order (SI 2009/1380) was made giving the Scottish Parliament the power to amend the Scotland Act 1998 to enable a time limit for such actions to be set.This power was exercised by the Parliament in the Convention Rights Proceedings (Amendment) (Scotland) Act 2009 (asp 11).

14 House of Commons Scottish Affairs Committee, Commission on Scottish Devolution (Third Report of Session 2009-10), published 11 March 2010

15 Commission on Scottish Devolution. Serving Scotland Better: Scotland and the UK in the 21st Century (Final Report – June 2009), para 4.157

16 To date only one sub-committee, the Justice 2 Sub-Committee, has ever been established by the Parliament.

17 This Rule sets out the standard procedure for Public Bills.However, different rules already apply in relation to certain types of bills (e.g. Rule 9.18.7 provides that there will not normally be a debate on the motion to pass a Consolidation Bill). Rule 9A.10 and Rule 9C.12 make the equivalent provision in relation to Private Bills and Hybrid Bills respectively.Given that the rules are broadly similar, it will be sufficient to consider the proposal in terms of standard Public Bills for the purpose of considering the recommendations.

18 Interests of Members of the Scottish Parliament Bill; Stage 3 started on 26 April 2006 but was adjourned until 8 June 2006. Scottish Parliament, Official Report, 26 April 2006, col. 24974http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-06/sor0426-02.htm#Col24974

19 In addition, Calman envisages that a similar, limited opportunity for further amendments would be provided on the day of debate as is provided for by Rule 9.8.5D.Hence, the only real point of difference is whether the separation of amendment proceedings and the debate is optional (see under “current rules”) or mandatory (as under recommendation 6.2).

20 Some categories of business required by Standing Orders (see Rule 5.6.1) have specific amounts of time devoted to them,e.g. committee business and non-executive debates.When question times are also taken into account, it would suggest that government time would be the main source of any extra time required.

21 Commission on Scottish Devolution. Serving Scotland Better: Scotland and the UK in the 21st Century (Final Report – June 2009), para 6.113

22 See for example The Scotland Act (Modification of Schedule 4) Order 2009 which permitted the Scottish Parliament to pass the Convention Rights Proceedings (Amendment) (Scotland) Act 2009 amending section 100 of the Scotland Act.

23 Taken from the explanatory notes on section 39 of the Scotland Act 1998

24 sections 15 and 16

25 House of Lords, Hansard, 22 October 1998, column 1680

26 Scottish Parliamentary Standards Commissioner Act 2002 (Procedures, Report and Other Matters) Directions 2002