The Scottish Parliament:-Parliamentary Procedure-Guidance on Public Bills

The second edition of this Guidance was published in September 2001, since when there have been a number of changes to Standing Orders affecting how public Bills are dealt with, as well as the continuing development of administrative practice, precedent and convention as more legislation has gone through the Parliament. This third edition of the Guidance has been prepared to take account of those developments. It is hoped that it will prove to be a useful source of reference to a wide range of readers – Members, Parliament and Executive staff, and outside parties with an interest in the legislative process, whether as witnesses, practitioners or observers.

The aim of this document is not just to explain the Rules but to provide guidance on how they are to be applied in particular instances. However, it is only guidance and cannot itself impose a definitive interpretation. In particular, it cannot supersede the power of the Presiding Officer to determine any question that may arise as to the interpretation or application of the Standing Orders under Rule 3.1.1(c). And while every effort has been made to ensure the Guidance is as up-to-date as possible at the time of publication, procedures and practices can be expected to continue to develop.

This Guidance was prepared by the Legislation Team in the Parliament’s Chamber Office, and comments or suggestions should be addressed to the clerks in that Team in the first instance. The Team can be contacted in Room T2.60, the Scottish Parliament, Edinburgh EH99 1SP.

1.1 A Bill is a draft Act, and contains the text that will, if the Bill is passed and enacted, become part of the statute law. Most Bills, and the only ones dealt with in this Guidance, are “public Bills” – that is, Bills introduced by members and dealing with matters of public policy and the general law. (Private Bills – that is, Bills introduced by private individuals or bodies seeking powers or benefits in excess of or in conflict with the general law – are subject to distinct Rules and are the subject of separate Guidance.¹) Bills are also items of Parliamentary business, subject to a process of scrutiny over various Stages. The main purpose of this Guidance is to describe that process as it applies to public Bills in the Scottish Parliament.

1.2 Before devolution, all Bills affecting Scotland were introduced in, and subject to the procedures of, the United Kingdom Parliament (that is, the two Houses at Westminster). Some such Bills were limited in extent to Scotland, while others applied to the whole of Great Britain or the United Kingdom (often with some distinct provisions applicable only to Scotland).

1.3 Section 28(1) of the Scotland Act 1998, which established the Scottish Parliament, provides that “subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament”. The limit on that power to legislate, set out in section 29, is the limit of “legislative competence”.

1.4 Legislative competence is defined according to five criteria (set out in section 29(2)). Expressed in general terms, those criteria are:

1.5 While many of the limits on legislative competence are clear-cut, others may be subject to differences of interpretation. As such, the precise boundaries of the Parliament’s powers to legislate can ultimately be decided only by the courts. The Scotland Act requires the legislative competence of any Bill to be assessed before it is introduced in the Parliament, and provides an opportunity for it to be challenged after it is passed but before it can become law (as described in Part 2 below).

1.6 Although the Scottish Parliament has the power to legislate on a wide range of matters devolved to it - including most aspects of civil and criminal justice, health, education, local government, transport and housing - the United Kingdom Parliament retains a general power (under section 28(7) of the Scotland Act) to legislate on all matters, both reserved and devolved. However, the exercise of this power is subject to the convention that Westminster will not legislate on a devolved matter – or to alter the legislative competence of the Parliament, or the executive competence of Scottish Ministers – without the consent of the Scottish Parliament.² The Parliament’s consent is obtained by the Parliament's agreement to what is known as a legislative consent motion. The procedure associated with this process is contained in Chapter 9B of Standing Orders and is not further covered by this Guidance.³

1.7 The Scotland Act provides minimum requirements about the process to be followed by the Parliament in passing Bills. Section 36(1) requires there to be at least three distinct stages to which Bills are subject – namely a stage when members can debate and vote on the general principles of the Bill; a stage when they can consider and vote on its details; and a final stage when the Bill can be passed or rejected. This 3-stage model may be departed from in relation to specific types of Bill, and an additional stage must be provided for where a Bill is subject to challenge after being passed.

1.8 The Standing Orders of the Parliament provide its procedural framework. The process governing the passage of a public Bill is set out in Chapter 9 of the Standing Orders. (Private Bills are dealt with separately in Chapter 9A.) However, the rules in Chapter 9 need to be read in the context of the Standing Orders as a whole – including in particular, the rules relating to the management of business (Chapter 5), proceedings in committee (Chapters 6 and 12) and in the Parliament (Chapter 7), and on decision-making and voting (Chapter 11). It should be borne in mind, in particular, that any of the rules (except to the extent that they reflect requirements of the Act) may be suspended or varied on a particular occasion or for a particular purpose (Rule 17.2).

1.9 Bills in the Scottish Parliament are very similar, in terms of layout, structure and the conventions of legislative drafting, to Bills in Westminster. This is primarily because the Acts of the Scottish Parliament (ASPs) to which they are intended to give rise form part of the UK “statute book” alongside existing statute law in the relevant area, most of which consists of Acts passed by the UK Parliament before devolution.

1.10 Rule 9.2.3 requires Bills to be in “proper form”. The Presiding Officer has made a determination of “proper form” which, together with recommendations on the content of Bills, is reproduced at Annex A. An illustration of the form of a Bill and its principal components is set out at Annex F.

1.11 Users of this Guidance who are unaccustomed to dealing with primary legislation may find it useful to familiarise themselves with the information given in Annex B, which explains the structure of Bills and certain common features of drafting.

2.1 This Part of the Guidance serves to amplify and explain the Standing Orders as they relate to the various procedures that a Bill goes through from before introduction to Royal Assent and beyond. The description relates principally to an Executive “programme” Bill – that is, a Bill introduced to give effect to Executive policy – and to the “general rules” in Chapter 9 (Rules 9.2 to 9.13A). There are also “special rules” (Rules 9.14 to 9.21) which apply different procedures to particular types of Bills. These are described in Part 3 of the Guidance. The rules relating to amendments (principally Rule 9.10) are further explained in Part 4 of the Guidance. The three-stage process is also illustrated by means of the diagram in Annex E.

2.2 For Executive Bills, the legislative process begins with the formulation of policy by Ministers and civil servants. Once it has been decided that primary legislation is necessary in order to give effect to the policy, a “Bill team” consisting of administrators and solicitors is formed to develop the policy in detail. The Bill team solicitor prepares drafting instructions, on the basis of which the drafter (who works closely with the Bill team but is not a member of it) prepares the Bill.⁴

2.3 In many cases, there will be a public consultation process during the preparation of the Bill. This may involve the publication of an Executive consultation document and/or detailed proposals. The latter may include a consultation draft of the Bill. The committee of the Parliament expected to consider the Bill when it is introduced may consider the proposals (or draft Bill) at this stage, perhaps taking evidence from interested individuals and bodies. Such “pre-legislative scrutiny” can be useful in allowing members to familiarise themselves with the subject-matter prior to introduction.

2.4 Once the Executive has finalised the text of the draft Bill, there is a three-week period during which officials of the Parliament take certain steps preparatory to formal introduction.⁵ This period begins with the drafter sending a copy of the draft Bill to the Head of the Chamber Office and to the Parliament’s Director of Legal Services, together with a note of the Executive’s view on legislative competence, draft accompanying documents and a covering letter.

2.5 The drafter’s covering letter sets out the Executive’s view on the following issues:

2.6 During the 3-week pre-introduction period, the Parliament’s Directorate of Legal Services prepares advice to the Presiding Officer on legislative competence. At the same time, the clerks consider the points raised in the drafter’s letter, with the Head of Chamber Office sending a response shortly prior to introduction. The clerks also prepare advice to the Presiding Officer on whether a financial resolution is required. They also make final formatting changes to the Bill to ensure that it conforms to the Presiding Officer’s determination (under Rule 9.2.3) on “proper form” (reproduced in Annex A). All reasonable efforts are made to ensure that the proposed date of introduction can be met.

2.7 All Bills submitted for introduction must be accompanied by the various documents required under paragraphs 2 to 4 of Rule 9.3. For most Executive Bills⁶, these accompanying documents are—

All Bills must also be accompanied by a statement by the Presiding Officer on legislative competence (under section 31(2) of the Act and Rule 9.3.1).

2.8 Under Rule 9.3.6, the Parliament may decide (by agreeing to a motion lodged by the member proposing to introduce a Bill) to allow a Bill to be introduced without one or more of the accompanying documents required under Rule 9.3. This Rule does not, however, permit the Parliament to waive the requirement for a Presiding Officer statement on legislative competence (or, if the Bill is to be introduced by an Executive Minister, the requirement for an Executive statement), since that is a requirement of the Act and not just of the Standing Orders.

2.9 The Explanatory Notes normally provide a brief overview of what the Bill does, followed by a more detailed commentary on the individual provisions. They are required to be neutral in tone – that is, they explain what the Bill does without seeking to justify or advocate. They can be useful to the reader in describing the legal context in which the Bill operates and explaining technical terms or drafting conventions used in the Bill. Straightforward or self-explanatory provisions do not require explanation in the Notes.

2.10 The Financial Memorandum sets out estimates of the expected costs of the Bill to the Scottish Administration (i.e. the Executive, in the broad sense of Ministers, departments and agencies), to local authorities and to other bodies, individuals and businesses. In each case, the Memorandum indicates the timescales over which such costs are expected to arise and the margin of uncertainty in estimates given.

2.11 This document is required only in relation to a Bill containing provisions “charging expenditure on” the Scottish Consolidated Fund. A charge on the Fund is a charge which the Executive is required to pay without obtaining further authority from the Parliament by means of a Budget Bill. By agreeing to the provision, the Parliament voluntarily gives up its right to scrutinise the budget for the item concerned (see also paragraph 2.80, below).

2.12 This statement is always in a standard form of words, to the effect that the relevant Minister considers the Bill to be within the Parliament’s legislative competence.

2.13 The Policy Memorandum, published separately from the other accompanying documents for an Executive Bill, sets out the Bill’s policy objectives, what alternative approaches were considered, the consultation undertaken and an assessment of the effects of the Bill on equal opportunities, human rights, island communities, local government, sustainable development and other matters considered relevant. It provides an opportunity to argue the case for the Bill, and so can provide a useful complement to the Explanatory Notes.

2.14 The duty on the Presiding Officer to make a statement on legislative competence differs from that on the Executive. Unlike the Executive statement, the Presiding Officer’s statement may indicate a view that the Bill is (or specified provisions of it are) outwith competence, giving reasons. A statement in such terms does not prevent the Bill from being introduced. The Presiding Officer’s statement, although it must express a definite view one way or the other, is ultimately only an opinion (as indeed is the Executive’s), and should not be regarded as precluding the Parliament, or any committee, from critically examining a Bill on grounds of legislative competence during its passage.

2.15 Where an Executive Bill contains provisions conferring powers to make subordinate legislation, the member in charge must also lodge with the clerk a memorandum on delegated powers. This must set out:

2.16 Accompanying documents (other than the Presiding Officer’s statement on legislative competence) are prepared by or on behalf of the member in charge of the Bill (in the case of Executive Bills, by the Bill Team). The clerks have a role in ensuring that they are presented appropriately and conform to Standing Orders.

2.17 Once the Presiding Officer has made a statement on legislative competence, and the other pre-introduction steps have been taken, the Bill may be formally introduced. A Bill may be introduced on any sitting day (Rule 9.2.1) by being lodged with the clerks. The Bill must be signed by the member introducing it and by any supporters whose names are to appear on the published version (Rules 9.2.2 and 4).

2.18 The member who introduces the Bill is also, in the first instance, the “member in charge” of it. As such, he or she has certain specific rights in relation to the Bill at later stages during its passage. That member may also designate another member as member in charge. (In the case of an Executive Bill, only a junior Scottish Minister⁷ may be the designated member in charge (Rules 9.2A.1(b) and 9.2A.5); and in the case of a Committee Bill, only a member of the committee may be the designated member in charge (Rules 9.2A.3(b) and 9.2A.5).) Such a designation is made in writing to the clerks, and only one other member may be so designated at any time. The designation of another member does not prevent the member who introduced the Bill from exercising any rights conferred by the Rules on the member in charge (Rule 9.2A.4)⁸.

2.19 Although such a designation may be made at any time, it is most conveniently made at the time of introduction. It gives the member who introduced the Bill an assurance that any necessary procedural steps can still be taken should he or she be unavailable for a period or on a particular occasion. In the case of an Executive Bill, it is likely that the member introducing the Bill (who must be a member of the Scottish Executive) will designate the relevant junior Scottish Minister as “member in charge”.

2.20 In the case of an Executive Bill or Committee Bill, the member who introduces the Bill becomes the original member in charge by virtue of that member’s role (as Minister or committee convener), rather than in an individual capacity. If another member takes over that role during the passage of the Bill, the new Minister or convener automatically assumes the status of member in charge (Rule 9.2A.1 and 3).

2.21 On the day of introduction, the Bill and accompanying documents are sent by the clerks to the Parliament’s printers (currently RR Donnelley) for publication, both in hard copy and on the Parliament’s website, the following day (Rule 9.4).⁹

2.22 The introduction of a Bill is recorded in Section G of the Business Bulletin.

2.23 Once a Bill has been introduced, the Parliamentary Bureau refers it to whichever committee has the Bill within its remit. For the purposes of Stage 1, this committee is known as the “lead committee”. If there is more than one committee to which the Bill is relevant, the Bureau must recommend to the Parliament which is to be the lead committee. In that case, the other committees, known as “secondary committees” may (but need not) report on the Bill to the lead committee (Rule 9.6.1). The Bureau also establishes a timescale within which the lead committee is expected to report.

2.24 If the Bill contains powers to make subordinate legislation, it is considered by the Subordinate Legislation Committee, which reports on the relevant provisions to the lead committee (Rule 9.6.2). The committee may also report on any provisions in the Bill which confer other delegated powers – for example, powers to issue guidance or codes of conduct (which are non-legislative in nature). In considering those provisions, the committee normally considers the delegated powers memorandum provided by the Executive, and may also take evidence from officials and other interested parties. The committee considers in particular whether any of the powers delegated by the Bill concern matters which should be the subject only of primary legislation and whether the parliamentary control proposed in each case is appropriate.

2.25 The lead committee’s role is to report to the Parliament on the general principles of the Bill – that is, on the principal purposes of the Bill, rather than the fine detail. (In other words, the report should look at the Bill “in the round” without anticipating the detailed scrutiny that is more properly a matter for Stage 2.) It is normal (but not obligatory) for a Stage 1 Report to include a recommendation to the Parliament as to whether the general principles of the Bill should be agreed to.

2.26 For any substantial Bill, the lead committee can be expected to take evidence from a range of witnesses over a number of meetings. Where time permits, a call for written evidence may be issued at the beginning of the inquiry. For any Executive Bill, officials or the Minister (or both) are likely to be invited to give evidence.

2.27 The lead committee must include in the Stage 1 Report consideration of the Financial Memorandum, taking into account any report on that document that may (but need not) be made to it by the Finance Committee. In the case of an Executive Bill, the Report must also include consideration of the Policy Memorandum. This enables the lead committee to consider, for example, whether sufficient consultation was undertaken before introduction.

2.28 The Stage 1 Report is normally published with any reports by the Subordinate Legislation Committee, Finance Committee or secondary subject committees included as annexes. If a date for the Stage 1 debate has been set, the Stage 1 Report must be published not later than the fifth sitting day before that date (Rule 9.6.3A).

2.29 The Parliament is then required to consider the general principles of the Bill and decide whether to agree to them (Rule 9.6.4). This debate cannot take place earlier than the fifth sitting day after publication of the Stage 1 Report (unless a motion proposing that the debate takes place earlier is agreed to) (Rule 9.6.3A). This is intended to ensure that there is, in the normal course of events, at least a week between publication of the Stage 1 Report and the Stage 1 debate.

2.30 Any member may, before that day, lodge a motion “That the [short title] Bill be referred back to the [name] Committee for a further report on the general principles of the Bill” (or of specified sections of the Bill). If such a motion is agreed to, the Bill returns to the lead committee for a further report (Rule 9.6.6).¹⁰ Otherwise, the Bill’s general principles are debated and decided (which need not involve members voting in a division).

2.31 The debate takes place on a motion by the member in charge of the Bill (“That the Parliament agrees to the general principles of the [short title] Bill”). Such a motion may be amended, but the Presiding Officer has indicated that amendments will only be selected for debate if they are so worded that they cannot cast any doubt on what the status of the Bill would be if the amended motion were agreed to. Such amendments will therefore only be selected if—

As an example, amendments in category (a) might be worded to add a reason why, in agreeing to the motion, the Parliament does so with some regret or misgivings – e.g. Insert at end “but, in so doing, expresses reservations about [etc.]”. Amendments in category (b) should be worded so as to reverse the terms of the motion for a reason stated in the amendment – e.g. Leave out from “agrees” to end and insert “does not agree to the general principles of the [short title] Bill because [etc.]”.¹¹

2.32 If the (or a) fundamental purpose of the Bill requires Crown consent (see paragraph 2.5 above), this is signified by the relevant Minister at the beginning of the Stage 1 debate. (If Crown consent is required only in respect of minor or subsidiary provisions of the Bill, it may be signified at Stage 3.)

2.33 If the Parliament agrees to the general principles of the Bill at Stage 1, the Bill proceeds to Stage 2. (If the general principles are rejected, the Bill falls – Rule 9.6.7.) The Parliamentary Bureau may refer the Bill back to the Stage 1 lead committee for Stage 2 or propose (by motion) that a different committee or committees take that Stage. The Stage 2 committee can be a Committee of the Whole Parliament¹², of which all MSPs are members and the Presiding Officer is the convener. The Bureau may also propose that the Bill be divided among two or more committees for Stage 2 consideration – preferably with each committee being allocated whole Parts or Chapters to deal with.¹³

2.34 The Bureau may set a timescale within which Stage 2 is to be completed. Except for Budget and Emergency Bills, there must be at least eleven whole sitting days between the completion of Stage 1 (i.e. the decision at the end of the Stage 1 debate) and the beginning of Stage 2 (Rule 9.5.3A). Thus, if the Stage 1 debate takes place on a Wednesday, Stage 2 could begin on the Friday of the second week thereafter (assuming all intervening weekdays are sitting days). Since committees normally only meet on Tuesdays, Wednesdays or (occasionally) Mondays, this rule effectively ensures that two whole weeks of Parliamentary business must pass before Stage 2 commences.

2.35 The principal role of the Stage 2 committee is to consider and dispose of amendments. The procedures which require to be followed in so doing are explained in more detail in Part 4 of this Guidance. However, it is also open to the committee, within the timescale available, to take further evidence on the Bill at Stage 2.

2.36 As soon as a decision has been taken at Stage 1 in favour of the Bill, it is open to members to lodge amendments to the Bill (Rule 9.7.5). As explained in Part 4 below, any member of the Parliament (not just members of the Stage 2 committee) may lodge amendments at Stage 2, and there is no limit on the number of amendments that may be lodged. There is no selection of amendments at Stage 2, so all admissible amendments may be moved. Further details of the procedures relating to amendments at Stage 2 are set out in Part 4.

2.37 Under Rule 9.7.4, the “default order” for consideration of the sections and schedules of the Bill is with the sections taken in the order they arise in the Bill and each schedule taken immediately after the section which introduces it.¹⁴ If any other order is to be followed, it must be decided by the Parliament (on a motion by the Parliamentary Bureau) or, if the Parliament does not so decide, by committee decision, usually on a motion by the convener. No such motion should be lodged by the convener until the clerk has given the member in charge notice of, and an opportunity to comment on, the order proposed.

2.38 Where the order of consideration is to be decided by motion, this should, if at all possible, be done before the meeting at which the committee commences Stage 2 consideration – to allow the Marshalled List of amendments (see Part 4 below) to reflect the agreed order. If the order is to be decided during the committee meeting at which Stage 2 begins, the clerk will aim to secure the informal agreement of committee members in advance, to allow the Marshalled List to be finalised in advance of the formal decision being taken.

2.39 For each week of Stage 2, a Marshalled List is published and a groupings list prepared. Both documents are available on the Parliament’s website, in the Document Supply Centre and at the committee meeting. The clerks provide the convener with a procedural brief to assist him or her in calling amendments according to the groups and putting all the necessary questions to the committee. The Committee Minutes list how all amendments were disposed of and all sections and schedules agreed to (whether or not amended). The same information can be obtained by reference to the Official Report.

2.40 There is normally no separate report of the committee’s Stage 2 proceedings. The Official Report and the “As Amended” print of the Bill (if there is one) serve the purpose that would otherwise be served by a discursive report. It is, however, open to a Stage 2 committee to prepare a Stage 2 report – perhaps to explain why particular amendments were made or to draw the Parliament’s attention to provisions of the Bill where, although the committee could not agree on any particular amendments, it agrees that some amendment is required.

2.41 If any amendment (however small) is agreed to, the Bill is re-printed in amended form (Rule 9.7.8). The re-printed Bill shows all amendments made by sidelining in the right margin. Except where it would clearly be appropriate to do so (such as to take account of the internal restructuring of a section caused by amendment), provisions in the Bill as introduced are not re-numbered – so, for example, a new section inserted by amendment between sections 1 and 2 will appear as 1A, whereas the removal by amendment of section 3 will not cause section 4 to be re-numbered. These presentational conventions are intended to assist members and others see clearly where amendments have been made, but they apply only for the duration of the Bill: all numbering is corrected for the Act.

2.42 The re-printing of a Bill is recorded in Section G of the Business Bulletin. In most cases, re-printed Bills are published within a day of the end of Stage 2.

2.43 If any amendment is made to the Bill at Stage 2 inserting a new section or schedule or substantially changing an existing provision the member in charge must produce revised or supplementary Explanatory Notes. This must be done no later than four sitting days before Stage 3 starts (Rule 9.7.8A). The Notes should fulfil the same purpose that the Explanatory Notes provided on introduction i.e. they (or, in the case of supplementary Notes, they, when read with the original Notes) should provide an objective explanation of what each provision of the Bill does, to the extent that any provision requires explanation.

2.44 An amended Bill may have been changed in a way that the member in charge did not welcome and the member may even have it in mind to propose amendments reversing those changes at Stage 3. This does not negate the requirement to explain neutrally what those provisions would do (to the extent that that is necessary), although it would be permissible for the Notes to draw attention to perceived anomalies or to errors in such provisions that are objectively evident.

2.45 The member in charge must also lodge with the clerks a revised or supplementary Financial Memorandum if a Bill has been amended so as to substantially alter any of the costs set out in the original Memorandum. This must be done at least four sitting days before Stage 3 (Rule 9.7.8B). The Memorandum (or, in the case of a supplementary Memorandum, that document read together with the original Memorandum) must provide the same information in respect of the Bill as amended as the original Memorandum provided for the Bill as introduced.

2.46 If any amendments are made to insert provisions in the Bill conferring power to make subordinate legislation, or to make substantial alterations to such provisions already in the Bill, the Subordinate Legislation Committee must report to the Parliament on those provisions (Rule 9.7.9). If a Bill is so amended, that committee may also consider and report on any new or substantially altered provisions conferring other delegated powers. In the case of an Executive Bill, the member in charge must also, no later than the end of the second week before the week in which Stage 3 will take place or commence, produce a revised or supplementary memorandum on delegated powers for the Committee’s consideration (Rule 9.7.10). (See paragraph 2.15 for a discussion on Delegated Powers Memorandums.)

2.47 Stage 3 takes place at a meeting of the whole Parliament (Rule 9.8.1). Except in the case of a Budget or Emergency Bill, the day on which Stage 3 begins must be at least nine whole sitting days after the day on which Stage 2 ends (Rule 9.5.3B). Thus, if Stage 2 ends on a Tuesday, Stage 3 cannot take place until the Tuesday of the second week thereafter (assuming that all intervening weekdays are sitting days).

2.48 Amendments for Stage 3 may be lodged as soon as Stage 2 is completed (Rule 9.8.3). Where the Bill was amended at Stage 2, Stage 3 amendments must relate to the “As Amended” version of the Bill. Amendments lodged before that version is ready can only be published once the page and line references have been checked against the amended Bill.

2.49 Rule 9.8.5 requires amendments at Stage 3 to be taken by reference to the order of the sections and schedules in the Bill (with amendments to the Long Title taken last), unless the Parliament agrees to a Bureau motion proposing an alternative order. Any such motion should be taken as early as possible before Stage 3, to ensure that the Marshalled List reflects the agreed order.

2.50 As at Stage 2, any member may lodge amendments, there is no limit to the number of amendments that may be lodged, and all admissible amendments are printed in the Business Bulletin. Unlike at Stage 2, however, only those amendments selected for debate by the Presiding Officer appear in the Stage 3 Marshalled List (Rule 9.10.8).¹⁵

2.51 The first part of the Stage 3 proceedings consists of the moving and disposal of those amendments selected for debate. Stage 3 proceedings on amendments are similar to those at Stage 2, except that all members may vote, and there is no requirement to agree to each section and schedule. Unlike at Stage 2, there is likely to be a timetabling motion agreed to by the Parliament, setting out deadlines by which debates on particular groups of amendments must be concluded. As this is best understood in the light of the discussion on the purpose and procedural implications of grouping amendments, the discussion on the timetabling motion takes place later in this Guidance (see paragraphs 4.86 to 4.97).

2.52 If the debate on the motion to pass the Bill is scheduled to take place later in the same day as the day on which Stage 3 amendments are disposed of, either the member in charge or a Minister, if any, with general responsibility for the subject matter of the Bill may move, “That further Stage 3 consideration of the [short title] Bill be adjourned to [date]/a later day”. (The motion may, but need not, name a day.) This motion, which must be moved immediately after the last amendment is disposed of, may be moved without notice and cannot be amended or debated – so the question is put on it straight away. If the motion is agreed to, no further proceedings take place on the Bill until the day named in the motion (or until the day subsequently appointed by the Bureau as the “later day”) (Rule 9.8.5C). In the interim, further amendments may be lodged only by either the member in charge or (in the case of a non-Executive Bill) a Minister, if any, with general responsibility for the subject matter of the Bill, and such amendments may be lodged only for the purpose of “clarifying uncertainties” or “giving effect to commitments given at the earlier proceedings at Stage 3” (Rule 9.8.5D). This limited right to lodge amendments also exists where the debate on the motion to pass the Bill is already scheduled to take place on a later day.

2.53 These two categories of permissible additional amendments correspond to two possible reasons the member in charge may have for moving to adjourn to a later day. The first reason is to gain an opportunity to consider the implications of any unexpected or unwelcome decision to agree to Stage 3 amendments. In particular, any substantial new material inserted into an Executive Bill by a non-Executive amendment may require some adjustment to its drafting, and further changes elsewhere in the Bill may also be necessary before the Bill is, once again, fit to be enacted. It is important to note that the Parliament’s agreement to a motion to adjourn Stage 3 would not permit the Executive to lodge amendments that would have the effect of reversing amendments to which the Parliament has agreed.

2.54 The second reason for moving to adjourn Stage 3 proceedings is where the member in charge or (if different) relevant Executive minister has promised, earlier in the Stage, to make some concession on a controversial issue, to meet concerns expressed by members in debate or in response to amendments already proposed. In such a case, the Parliament may feel able to support the motion to adjourn Stage 3 proceedings, on the ground that this will allow time for a mutually satisfactory compromise to be reached and appropriate amendments to be lodged. These amendments can then be moved by the member in charge at the resumed Stage 3 proceedings.

2.55 It may emerge during or shortly before Stage 3 proceedings that adjourning Stage 3 consideration is not sufficient to resolve outstanding difficulties with the Bill. It may become apparent, in other words, that although there is still general support for the Bill, the limited scope for further Stage 3 amendments does not allow the necessary changes to be made. This would be the case, in particular, if the Executive wished to overturn an unwelcome amendment agreed to at Stage 3. In such a case, the member in charge may move “That the [short title] Bill be re-committed for further Stage 2 consideration in respect of [specified sections and/or schedules]”, under Rule 9.8.6. Only whole sections and (normally) whole schedules should be specified in the motion, and no more than half of the sections of the Bill may be so specified – on the ground that where the difficulties with the Bill are more widespread it would be better to withdraw it and introduce a new Bill in its place.

2.56 If the motion is agreed to, it is for the Bureau to determine which committee should conduct the proceedings on re-commitment and the timetable for those proceedings. A Bill may be re-committed only once (Rule 9.8.8). Proceedings on re-commitment follow the same rules as for Stage 2 (except that only those sections and schedules specified in the motion to re-commit need be agreed to).

2.57 A Bill amended on re-commitment is re-printed and then returns to Stage 3. There must be at least four whole sitting days between the end of proceedings on re-commitment and the resumption of Stage 3 (assuming the Bill has been amended on re-commitment) (Rule 9.5.3C). Stage 3 amendments may again be lodged – but only to those sections and schedules specified in the motion to re-commit or to other parts of the Bill (including the long title) if they are necessary in consequence of amendments made on re-commitment.

2.58 After proceedings on amendments at Stage 3 are concluded (including any adjourned proceedings under Rule 9.8.5C, and any further Stage 3 proceedings after re-commitment), the Parliament must decide whether to pass the Bill. The debate takes place on a motion by the member in charge of the Bill “That the Parliament agrees that the [short title] Bill be passed”. Such a motion may be amended, but subject to similar criteria that the Presiding Officer applies in selecting amendments to Stage 1 motions (see paragraph 2.31 above). Thus, an amendment to a Stage 3 motion will be selected only if—

2.59 If there is a division when the question on the motion is put, the result is only valid if at least a quarter of MSPs vote. If the majority votes against the Bill, or the result is invalid, the Bill falls.

2.60 If provisions of the Bill require Crown consent, and that consent has not been signified at Stage 1 (or if the provision giving rise to the need for consent has been inserted by amendment), it is signified at this Stage by the relevant Minister during his or her speech.

2.61 If a Bill is amended at Stage 3, it is re-printed to show the Stage 3 amendments. (As with other amended versions, the Bill shows by sidelining amendments made since the previous versions, and leaves numbering un-corrected.) If it was not amended at Stage 3, the previous print of the Bill serves the purpose of showing the Bill in the form in which it was passed.

2.62 Section 32 of the Scotland Act provides that a Bill, once passed, may be submitted for Royal Assent by the Presiding Officer after the expiry of a four-week period. During that period, the Bill is subject to legal challenge by the Advocate General for Scotland, the Lord Advocate or the Attorney General under section 33, and may also be subject to an order made by the Secretary of State under section 35. The Presiding Officer may, however, submit the Bill for Royal Assent after less than four weeks if notified by all three Law Officers (under section 33(3)) and the Secretary of State (under section 35(4)) that they do not intend to exercise those powers.

2.63 The Secretary of State may only make a section 35 order on the ground that the Bill is incompatible with international obligations or defence or security interests, or because it would adversely affect the operation of the law on reserved matters, where that law is modified by the Bill. Such an order, which must specify the provisions of the Bill objected to and the reasons, prohibits the Presiding Officer from submitting the Bill for Royal Assent. A challenge from one of the Law Officers is made on grounds of legislative competence and takes the form of a reference to the Judicial Committee of the Privy Council (JCPC).¹⁶ Once such a reference has been made, the Bill cannot make further progress towards Royal Assent until the JCPC has either decided (or otherwise disposed of) the reference, or has referred a question arising from it to the European Court of Justice (ECJ).

2.64 Where the JCPC refers to the ECJ a question arising from the case brought by the Law Officer, proceedings on that case are stayed pending the ECJ judgement. Since the ECJ can often take two years or more to decide a question referred to it, section 34 of the Scotland Act allows the Parliament to have a reference to the JCPC withdrawn if the JCPC has in turn made a reference to the ECJ. This is effected by a motion, under Rule 9.9.1 of Standing Orders, “That the Parliament resolves that it wishes to reconsider the [short title] Bill”. Such a motion may be moved only by the member in charge of the Bill and only if neither the reference to the JCPC nor the JCPC’s reference to the ECJ has been decided or otherwise disposed of. If the motion is agreed to, the Presiding Officer informs the Law Officers and the one who made the original challenge must then (under section 34(2)) request withdrawal of the reference to the JCPC. Reconsideration Stage may not take place until the withdrawal of the JCPC reference has been formally confirmed.

2.65 If there is no ECJ reference, nothing further can be done in the Parliament until the JCPC has decided (or otherwise disposed of) the Law Officer’s reference. If the JCPC decides that the Bill (or part of it) would be outwith the legislative competence of the Parliament, or if a section 35 order is made, the member in charge of the Bill may move “That the Parliament resolves to reconsider the [short title] Bill”. If such a motion is agreed to, the Bureau proposes in a Business Motion a time for Reconsideration Stage on the Bill at a meeting of the Parliament.

2.66 The purpose of Reconsideration Stage is to allow those provisions of the Bill subject to a section 33 reference or a section 35 order to be amended so that the problem which led to the reference or order being made is removed. Rule 9.9.4 therefore provides that only amendments aimed at resolving that problem are admissible. The judgment of the JCPC, the question that was referred to the ECJ or the section 35 order will be used by the clerks as a guide to the admissibility of amendments at Reconsideration Stage. Amendments are worded by reference to the “As Passed” version of the Bill. There is no selection of amendments at Reconsideration Stage, so all admissible amendments lodged may be moved.

2.67 The above differences aside, proceedings at Reconsideration Stage are similar to those at Stage 3. Once the amendments have been disposed of, the Bill may be further debated before the Parliament decides whether to approve the Bill. If there is a division, only a simple majority is required (the 25% quota required for the Bill to be passed does not apply).

2.68 A Bill approved after reconsideration is again subject to legal challenge by the Law Officers or to the making of an order by the Secretary of State in exactly the same way as it was after it was first passed. There is no limit to the number of times that the Parliament may approve a Bill or that those persons may exercise their rights under the Scotland Act in relation to it.

2.69 If the Bill has been amended on reconsideration to include provisions that would require Crown consent, consent for those provisions is signified during debate on whether to approve the Bill.

2.70 If a Bill that has been passed (or approved after Reconsideration) has not been subject to a section 33 reference or a section 35 order within the statutory 4-week period – or if the Secretary of State and all three Law Officers have confirmed that they will not exercise their powers under those sections – the Presiding Officer then sends the Bill, together with draft Letters Patent, to the Palace for Royal Assent.

2.71 To prepare for this, a version of the Bill is prepared for the Palace, showing the Bill in its final form.¹⁷ This is the same as the previous, published version but with all numbering corrected and any necessary “printing points” taken in. Printing points are non-substantial corrections (i.e. typographical points and other minor corrections that do not alter the legal effect of the Bill).

2.72 At the same time, the “Official Print” version of the Act is prepared. This is produced on special archive-quality paper bound with ribbon. The Official Print is identical, in terms of its legislative text, to the Bill that was passed by the Parliament. (This is made possible by the drafting convention that, within the text of a Bill, all references are, for example, to “this Act” rather than “this Bill”.)

2.73 Royal Assent, when the Bill becomes an Act, is treated (under section 28(3) of the Scotland Act) as taking place at the beginning of the day on which Letters Patent signed by the Queen are recorded in the Register of the Great Seal by the Keeper of the Registers of Scotland (under section 38(1)(a)). When the Keeper confirms that Royal Assent has taken place (under section 38(2)), the Clerk of the Parliament writes the date of Royal Assent on the Official Print (under section 28(4)). The Clerk also assigns an “asp number” in the form “2007 asp 1” (for the first Act given Royal Assent in 2007). (This number is the equivalent of the chapter number assigned to an Act of the UK Parliament.) The Clerk then sends a certified copy of the Official Print to the Queen’s Printer for Scotland, as authority to publish the Act. The Official Print itself is sent to the Keeper of the Records of Scotland for inclusion in the National Archives of Scotland. (NAS also hold the signed Letters Patent.)

2.74 The “Queen’s Printer” version of the Act – which is identical to the Official Print except with the date and asp number added – is available to the public through Stationery Office bookshops and on the OPSI (Office of Public Sector Information) Internet site. (It is not a publication of the Parliament and therefore does not appear on the Parliament’s website, although there is a link to it.) The text of the Act is also sent to the Statutory Publications Office for inclusion in the electronic Statute Law Database.

2.75 Where a Bill contains particular provisions affecting payments into or out of the Scottish Consolidated Fund (the “SCF”), it cannot proceed beyond Stage 1 unless the Parliament has, by resolution, agreed to the relevant provisions. That resolution is known as a “financial resolution” and the rules governing such resolutions are set out in Rule 9.12.

2.76 Rule 9.12 is intended to give effect to the principles of the Financial Issues Advisory Group (FIAG) which reported to the Consultative Steering Group (CSG) before the establishment of the Parliament. In its report, FIAG advocated a clear separation between “policy Bills” that would create powers or functions, and “Budget Bills” that would allocate resources. The latter, it argued, should never do more than provide authorisation for the spending of money on existing functions, whereas separate provision would always be needed in policy Bills for conferring the functions which give rise to the demand for funding – and it is this sort of provision that requires the consent of the Parliament by means of a financial resolution. Such a resolution recognises that the new (or increased) demand for funding in a policy Bill is something that will require to be met from the SCF. This is distinct from the annual Budget process, which determines the amounts of funding allocated.

2.77 In recommending this system, FIAG was attempting to give effect to the established principle that the executive arm of government has a unique responsibility in relation to the management of public funds. If it is to fulfil this function of “balancing the books”, the executive must maintain control both over the raising of revenue and over public spending. Hence the need for a mechanism to secure executive consent for payments either into or out of central funds.

2.78 It is for the Presiding Officer to decide, in every case, whether or not a financial resolution is required for a Bill (Rule 9.12.2). This decision is made at around the time of introduction, and communicated to the member introducing the Bill and to relevant Ministers and committee conveners.

2.79 The clerks’ advice to the Presiding Officer is based on the following general considerations:

2.80 Rule 9.12.3(a) makes clear that a resolution is required in every case where a Bill “charges expenditure on” the SCF. Such charges – which the Executive is required to pay without obtaining further authority from the Parliament by means of a Budget Bill – are provided for only in exceptional cases. An example is provision for judicial salaries. By agreeing to such a provision, the Parliament voluntarily gives up its right to scrutinise the budget for the item concerned. (It is for this reason that, where a Bill contains such a provision, it must be accompanied on introduction by a report by the Auditor General for Scotland (under Rule 9.3.4).)

2.81 Under Rule 9.12.3(b) a resolution is only required in relation to other expenditure charged on or payable out of the Fund if two tests are satisfied. The first test is what the “likely effect” of the Bill would be. This means that a resolution may be required even where the Bill does not directly require or render certain new or increased expenditure, but where such expenditure is the likely outcome of its implementation, taking into account the wider context in which the Bill operates. If, however, the implications of a Bill for expenditure are very indirect or uncertain a resolution may not be required.

2.82 The second test is that the expected expenditure (whether it is new or increased) must be “significant”. As a result, a resolution may not be required for a Bill which will require expenditure but where the amounts involved are expected to be trivial or easily capable of being absorbed within existing budgets. Whether expenditure is “significant” is a matter of judgement – not only is there no quantifiable amount that represents the threshold, it may vary according to context. Thus, for example, there may be a need to impose a new administrative function on a number of statutory bodies, where the annual cost of fulfilling the function is expected to be the same in cash terms no matter which body is involved. A Bill to impose that function on the Scottish Legal Aid Board might not require a resolution, since it could readily be absorbed by the Board’s existing staff and administrative budget, whereas a Bill to impose it on an ombudsman with very few existing functions and a tiny staff, would.

2.83 Under Rule 9.12.4, a financial resolution is required if a Bill satisfies the two tests set out in sub-paragraphs (a) and (b) of that Rule. The first test is that it would impose or increase a charge, or otherwise require a payment to be made, including by provision that is to be made by subordinate legislation (as the words in brackets make clear).

2.84 The second test is that the charge or payment must be made – with one exception – to persons with a statutory duty to pay the amounts involved into the Scottish Consolidated Fund. In practice, this means the Scottish Ministers and other office-holders in the Scottish Administration, together with directly-funded bodies. It excludes most non-departmental public bodies (NDPBs), whose income is not payable into the Fund.

2.85 The exception (set out in brackets in Rule 9.12.4(b)) relates to bodies which are not required to pay income received (e.g. from charges or payments) into the SCF, but who are only not so required because a provision in an ASP allows them instead to keep that income. Bodies in that position, in other words, have the power to “recycle” income – offsetting it directly against money they would otherwise require to be given from the SCF for expenditure purposes.

2.86 The purpose of the exception is to ensure that a Bill which authorises such a body to levy charges or payments is not automatically exempted from the need for a financial resolution just because the body isn’t required to pay the income into the SCF. Without this exception, an arbitrary distinction would be drawn between public bodies which have this limited type of financial autonomy and those which don’t – even though the impact on the SCF of a Bill authorising either type of body to raise new income would be essentially the same.

2.87 Rule 9.12.5 provides two exemptions from the application of Rule 9.12.4. The first is a similar exemption for insignificant amounts as is provided in relation to expenditure by Rule 9.12.3. The second is an exemption for charges or payments which are levied to recover the cost of goods or a service provided. In relation to goods, the exemption applies so long as the goods are to be sold for reasonable amounts. In relation to a service, the exemption applies so long as the amount charged can wholly or largely be accounted for by reference to the cost of the service. This would cover, for example, a charge for providing someone required to register information with a copy of their entry in the register. It would allow the charge levied to be at a higher level than would be justified only in terms of marginal cost recovery (i.e. the cost of the paper, photocopier toner and staff time making the copy) – but not substantially higher. The underlying intention is that a financial resolution should only be required in cases where charges or payments can be levied in such a way as to generate substantial profit or to contribute significantly to the income of the body in question.

2.88 Under Rule 9.12.7, a motion for a resolution may be lodged and moved only by a member of the Executive or a junior Scottish Minister.¹⁸ (For non-Executive Bills, it is for the member in charge of the Bill to approach the Executive, once it has been decided that a resolution is required, to request it to lodge and move a suitable motion.) The motion must be lodged within 6 months of the completion of Stage 1 (Rule 9.12.8(a)) and amendments to such a motion are inadmissible (Rule 9.12.7). If no motion is lodged within this time or if such a motion is lodged but not agreed to by the Parliament when it is taken, the Bill falls (Rule 9.12.8).

2.89 Rule 9.12.6 provides that an amendment to a Bill cannot be agreed to if the effect of the amendment would be that the Bill, had it been introduced in that form, would need a resolution that it doesn’t have. Rule 9.12.6 does not affect the admissibility of amendments, and an amendment to which it applies may be lodged and printed in the Business Bulletin and in a Marshalled List. However, such an amendment cannot be moved unless, by the time the point in the Bill to which it relates is reached, a suitable financial resolution in relation to the Bill has been agreed to.

2.90 Rule 9.13 allows a Bill to be withdrawn during Stage 1 by the member in charge of the Bill. The consent of the Parliament (or of the other members whose names appear on the Bill as supporters) is not required. Withdrawal is effected by writing to the Clerk, who will include a notice of the Bill’s withdrawal in Section G of the Business Bulletin.

2.91 After a Bill has received the Parliament’s endorsement of its general principles, it is treated as the property of the Parliament as a whole, and can only be withdrawn if the Parliament agrees. This requires the member in charge to move, “That the [short title] Bill be withdrawn.” If there is a division on this motion, it is decided by simple majority of those voting.

3.1 This Part of the Guidance explains the special procedures applicable to Bills other than the Executive “programme” Bills dealt with in Part 2. The process for introducing a Member’s or Committee Bill is also illustrated in simplified form in Annex D.

3.2 The Non-Executive Bills Unit (NEBU) is a clerking team within the Parliament whose role is to assist both members and committees in preparing members’ or Committee Bills and taking them through Parliament. This may include helping members prepare draft and final proposals, analysing consultation responses, obtaining drafting support for Bills and preparing Bill drafting instructions, helping members prepare Bill accompanying documents, and giving procedural advice as the Bill goes through Parliament. Any member considering whether to propose a Member’s Bill should contact NEBU at the earliest opportunity.¹⁹

3.3 Any MSP who is not a member of the Executive may seek to introduce a Bill, by one of two ways. The first is by encouraging a committee to make a proposal for a Committee Bill (see paragraph 3.22 below). The other is by proposing a Member’s Bill under Rule 9.14. Members have the right to lodge up to two Members’ Bills per session.

3.4 The first formal step in introducing a Member’s Bill is to lodge with NEBU a draft proposal for a Bill (Rule 9.14.3). The proposal consists of the proposed short title of the Bill and a brief explanation of its proposed purposes. With the proposal must also be lodged either a document consulting on the policy objectives of the draft proposal, or a written statement (a “statement of reasons”) explaining why the member thinks that a case for the Bill has already been established and that consultation is unnecessary. The draft proposal is published in the following day’s Business Bulletin, along with information about the consultation or about where copies of the statement of reasons may be obtained.

3.5 The presumption behind this formal encouragement to consult on the proposed Bill is that consultation can add value to the process, by exposing ways in which the policy might be developed and improved and offering stakeholders a chance to participate in improving that policy. To ensure adequate time to respond, Standing Orders require consultation to last 12 weeks or more.

3.6 Allowing members to lodge a statement of reasons rather than a consultation document amounts to recognition that there may be particular circumstances that justify a member not consulting (for instance, because the Executive has already recently consulted on matters closely related to the proposed Bill). Where a member lodges a statement of reasons, the committee to which the Parliamentary Bureau refers the proposal has one month to determine whether the statement is adequate justification for not consulting. (If the committee does not come to a view within that time, the member may proceed to lodge a final proposal.) If the committee decides it is not satisfied with the statement, the proposal will fall unless the member then lodges a consultation document within two months.

3.7 The next formal step is the member lodging a final proposal for the Bill with NEBU. If the member lodged a consultation document, the earliest point at which this can be done is at the end of the consultation period. If the member instead lodged a statement of reasons, the first point at which the final proposal can be lodged is any time after the committee has decided that it is satisfied with the statement, or (if the committee does not come to a view within one month of the draft proposal being lodged) the end of that month.

3.8 If the member chose to lodge a consultation document, the final proposal must be lodged with a summary of consultation responses (including any conclusions the member draws from those responses), together with copies of those responses. If the member instead lodged a statement of reasons, it is the statement (or a revised version of it) that must be lodged with the final proposal.

3.9 The final proposal is then published in the Business Bulletin for one calendar month, whilst the consultation summary or (as the case may be) statement of reasons is made available via the “Proposals for Members’ Bills” page of the Parliament website. During this period, any member may notify support for the proposal, this being recorded in the bulletin. If, at the end of the month, at least 18 other members, drawn from at least half the parties or groups represented on the Parliamentary Bureau, have indicated their support, the member has the right to introduce a Member’s Bill. This is unless a Minister has indicated either:

Such an indication must be given in writing to the clerk, who will arrange for it to be published in the Business Bulletin (Rule 9.14.7A).

3.10 While there is no limit to the number of proposals that each member may lodge (but he or she cannot have more than two – whether draft or final – in progress simultaneously (Rule 9.14.17), the member may only introduce two Members’ Bills in any session. This includes any Committee Bills that result from draft proposals submitted by that member (Rule 9.14.2).

3.11 NEBU can assist in introducing a Member’s Bill. This includes preparing drafting instructions (an external drafter drawn from a drafting panel maintained by NEBU will draft the Bill if the member works with NEBU) and helping members prepare accompanying documents. (NEBU assistance on introducing a Member’s Bill is subject to authorisation from the Scottish Parliamentary Corporate Body.)

3.12 As with any Executive Bill, the finalised text of a Member’s Bill should be submitted for a Presiding Officer statement on legislative competence three weeks before the proposed date of introduction. Whether or not the member (or NEBU acting on the member’s behalf) sends a “three-week letter” to the Head of Chamber Office (see paragraph 2.4), advice relating to the matters set out in the bullet points under paragraph 2.5 is likely to be sent to the member by the Head of Chamber Office shortly before the time of introduction.

3.13 On introduction, a Member’s Bill must be accompanied by the same types of accompanying documents as are required for an Executive Bill. This exception is that the Bill need not be accompanied by a statement from the member in charge stating that in his or her view its provisions would be within the Scottish Parliament’s legislative competence. A memorandum on delegated powers is not required either.

3.14 Stage 1 consideration of a Member’s Bill is no different to that for an Executive Bill with one important exception. This is that the lead committee has the option, under Rule 9.14.18, of recommending to the Parliament (on a motion of the convener) that the general principles be not agreed to, on one of three grounds:

3.15 The use of this power effectively allows a committee to curtail Stage 1 consideration and, in particular, not to produce a report on the general principles. A committee considering whether use of the power would be appropriate might wish to consider whether evidence should be taken on disputed matters before coming to a view, in order to help put beyond doubt that any of the three grounds applies. This would apply in particular where the Committee is minded to propose rejecting the Bill on competence grounds but the Presiding Officer’s statement on legislative competence indicated that the Bill was competent. In similar vein, it might be considered unusual for the same committee that indicated satisfaction with a statement of reasons to go on to propose early rejection of a Bill because it now considers that the statement failed to make a case for legislation, although there might be circumstances where those decisions would be consistent.

3.16 The Standing Orders require that a member’s final proposal must be broadly similar to, but not necessarily the same as, the draft proposal (Rule 9.14.8). In other words, both the draft and final proposal must be about “the same thing” – they must both seek to promote the same overall aim or address the same perceived problem. On the other hand, since the main purpose of the draft proposal stage is to enable the development of policy, it would be within the rules to make quite significant change in policy, especially where it is apparent that the change arises from taking on board constructive criticism made during consultation.

3.17 By contrast, by the time a final proposal is lodged, the assumption is that the member’s policy will be reasonably well developed. This is reflected in the requirement in Rule 9.14.12 that a Member’s Bill should “give effect” to a final proposal (Rule 9.14.12). So a draft Bill which contained provisions extending substantially beyond the terms of the final proposal or which did not provide a substantial element of what was outlined in the final proposal could not be introduced. This approach also serves to protect the interests of members who have signed up to the final proposal with a reasonable expectation of what the Bill resulting from it would be like. (And it is only proposals that have obtained a particular level of support that may be introduced as Members’ Bills.)

3.18 Members should discuss the wording of draft and final proposals with NEBU before they are lodged.

3.19 Under Rule 9.13A.1, a member who has lodged a draft proposal for a Member’s Bill accompanied by a statement of reasons and who is also a member of the committee considering the statement may not participate in the committee’s consideration of the proposal as a committee member. Such a member may participate in another capacity (for example, the member may be invited to give evidence in relation to the statement of reasons). This also applies where the member making the proposal is a committee substitute on the committee considering the proposal. Rule 9.13A.2 makes equivalent provision relating to the period after the Member’s Bill is introduced (i.e. Stage 1 and 2 committee consideration).²⁰

3.20 Where a member is prevented from participating in proceedings as a committee member by Rule 9.13A, a committee substitute (Rule 6.3A) or a Bill substitute (Rule 6.3B) may participate instead.

3.21 Any committee may make a proposal for a Bill to the Parliament under Rule 9.15.2. Such a proposal may originate from within the committee (prompted, perhaps, by evidence received in the course of an inquiry, or by a petition referred to the committee). A member of the committee who wishes the committee to make a proposal should raise the matter with the convener, who can then invite the committee to decide whether to conduct an inquiry on the subject.

3.22 An alternative route is provided in Rule 9.15.4, which allows any MSP to submit a draft proposal for a Committee Bill to the Parliamentary Bureau. (In practice, members are advised to contact NEBU in the first instance for assistance with the wording of a draft proposal. NEBU can then refer the agreed draft to the Bureau on the member’s behalf.) This is the mechanism used where the MSP concerned is not a member of a committee within whose remit the Bill would fall. A draft proposal is not printed in the Business Bulletin, but is referred by the Bureau to an appropriate committee. The committee is required to consider a draft proposal referred to it in this way (Rule 9.15.4). In doing so, the committee may (but need not) conduct an inquiry on the merits of the draft proposal before reaching a decision on whether to propose a Bill.

3.23 If a committee makes a proposal, whether in response to a draft proposal referred to it or on its own initiative, it does so in the form of a report to the Parliament. Unlike the short description required for a proposal for a Member’s Bill, a report containing a proposal for a Committee Bill should set out clearly, and in reasonable detail, why a Bill is considered to be necessary and what it would contain (Rule 9.15.5). In particular, the report must make clear that the committee is proposing a Committee Bill under Rule 9.15.²¹ The report may, but need not, include a draft Bill (Rule 9.15.5).²² Because there is no Stage 1 report on a Committee Bill (see below), it is important that a committee developing a proposal for such a Bill takes similar evidence to the evidence it would expect to take at Stage 1 of a Bill, and otherwise consults adequately on the proposal, before finalising its report.

3.24 Committees are advised to involve NEBU at an early stage during any inquiry on a Committee Bill proposal. NEBU’s role at this stage is primarily to help the committee to ensure that the proposal both expresses the policy of the committee and provides a suitable basis for the drafting of a Bill. To do this, a proposal must be sufficiently detailed to allow the Parliament to make a properly informed decision as to whether to support it, but not so detailed as to restrict the ability of the drafter subsequently called upon to implement the committee’s policy in legislative terms.

3.25 Once the committee report containing the proposal has been published, the Convener should lodge a motion such as the following:

The Bureau must allocate time in a Business Motion for consideration of the proposal on the basis of the committee’s report (Rule 9.15.6).

3.26 If the Parliament agrees to the proposal, the committee convener may instruct the drafting of a Bill to give effect to the proposal (or, if a draft Bill already exists, introduce it) – but not until the fifth sitting day after the debate and not if the Executive has indicated by that time that it will introduce in the same session an Executive Bill to give effect to the proposal or that Her Majesty’s Government proposes to legislate to the same effect, within two sessions (Rule 9.15.7: This is equivalent to Rule 9.14.13 in relation to Members’ Bills discussed further at paragraph 3.9 above.)

3.27 A Committee Bill may be introduced only if it is broadly consistent with the terms of the proposal that was agreed to by the Parliament. If, in the course of finalising the Bill, the Committee decides not to include in the Bill a substantial element of the proposal, or to include in the Bill substantial provisions that were not mentioned in the proposal, it would need to obtain the Parliament’s agreement to a further report containing a revised proposal. (It is partly to avoid any such difficulties that committees are advised to involve NEBU from the earliest stage in the preparation of any proposal.) If the proposal is agreed to, NEBU will develop drafting instructions in consultation with the committee, arrange for a Bill to be drafted, and provide support to the member in charge of the Bill during its passage.

3.28 A Committee Bill is introduced by the convener of the committee. Explanatory Notes, a Financial Memorandum and a Presiding Officer Statement on Legislative Competence are required – but not a Policy Memorandum, because it is expected that in many cases the information contained in the committee report proposing the Bill would contain the sort of information found in a Policy Memorandum. NEBU would normally be expected to provide assistance to the committee in preparing any accompanying documents.

3.29 At Stage 1, a Committee Bill is not referred to a lead committee for a report on its general principles. But the Finance Committee will consider and report on the Financial Memorandum in the normal way – unless it was the Finance Committee which proposed the Bill. Similarly the Subordinate Legislation Committee Bill must report on any provisions conferring powers to make subordinate legislation unless it initiated the Bill. Once those committees have reported to the Parliament (Rule 9.15.8), the Stage 1 debate takes place in the normal way. And after Stage 1, a Committee Bill proceeds in a similar manner to an Executive Bill.

3.30 A Budget Bill is a Bill consistent with the description of a Budget Act, as defined in section 29(3) of the Public Finance and Accountability Act 2000 (asp 1). Broadly, Budget Acts are Acts authorising the use of resources by the Executive, authorising payments out of the Scottish Consolidated Fund, enabling sums otherwise payable into the Fund to be applied for other purposes, and governing maximum amounts of expenditure and borrowing by certain statutory bodies.

3.31 A Budget Bill may be introduced only by a member of the Executive, and is accompanied only by the two mandatory statements on legislative competence (Rule 9.16.2). It is referred immediately for a Stage 1 debate, without the need for a Stage 1 report. If it contains provisions conferring power to make subordinate legislation, a memorandum on delegated powers will be required and it will be considered by the Subordinate Legislation Committee under Rule 9.6.2, but that committee is only required to report on it before Stage 3 (Rule 9.16.3).

3.32 Stage 2 of a Budget Bill is taken by the Finance Committee. At all Stages, amendments may be lodged and moved only by a member of the Executive or junior Minister (Rule 9.16.6). Otherwise, the procedures at amending Stages are the same as for other Executive Bills.

3.33 Budget Bills are subject to an accelerated timescale. Stage 3 must be completed not later than 30 days after introduction (although that Stage cannot begin until 20 days after introduction) (Rule 9.16.5). The normal rules on intervals between Stages do not apply (Rule 9.16.4).

3.34 A Budget Bill that is dependent on the Parliament passing a tax-varying resolution (under section 73 of the Scotland Act) to increase the basic rate of income tax falls if the requisite resolution is disagreed to. However, if a Budget Bill falls or is rejected for that or any other reason, another Bill in the same or similar terms may be introduced immediately afterwards.

3.35 The special rules applicable to Budget Bills reflect the convention that the Executive has a right of veto in relation to the Parliament’s budgetary decision-making. However, the Budget Bill itself is only the final stage in the annual budget scrutiny process. The first two stages of that process, which involve reports by the Finance Committee and debates in the Parliament, provide subject committees and the Parliament as a whole with the opportunity to comment on the Executive’s budgetary plans for the coming financial year.

Consolidation Bills, Codification Bills, Statute Law Repeals Bills and Statute Law Revision Bills

3.36 Where the statutory basis of the law in a particular area is scattered among a wide range of Acts, or where those Acts have been heavily amended, it may be appropriate to introduce a single Consolidation Bill to re-enact the existing provisions in a more logical and coherent form. Such Bills are usually prepared by the Executive in conjunction with the Scottish Law Commission. A Consolidation Bill may make various minor amendments to the law (particularly to give effect to Scottish Law Commission recommendations²³) as well as simply re-stating it, but may not contain substantial new provisions, nor make substantial changes to the existing law.

3.37 The only accompanying documents required for a Consolidation Bill are a Presiding Officer’s statement on legislative competence (and, assuming it is an Executive Bill, an Executive statement), plus tables of derivations and destinations. These tables show the connections between the provisions of the Bill and the equivalent provisions of existing statute law which are restated. The table of derivations follows the order of the Bill, while the table of destinations follows the chronological order of the restated statutes (listed by year and chapter/asp number). If a provision giving effect to a Law Commission recommendation charges expenditure on the Scottish Consolidated Fund, an Auditor General’s Report is also required.

3.38 Once introduced, the Bill is referred to a Consolidation Committee established (on a motion by the Bureau) for the purpose of considering the Bill. Where possible, at least one member of the committee should be a member of a relevant subject committee (Rule 9.18.4). The remit of such a committee is limited to consideration of the Bill in the terms set out in the Rules, and it is established only for the duration of the Bill – that is, until the Bill has received Royal Assent, falls or is withdrawn. In other respects, a Consolidation Committee is subject to the same Rules as other committees of the Parliament.

3.39 The Consolidation Committee’s role at Stage 1 is more restricted than that of a lead committee. Rather than considering the general principles of the Bill, it is required to report only on whether the Bill should proceed as a Consolidation Bill. (In other words, the question is not whether the committee approves of the law that the Bill consolidates, but only whether it approves of it being consolidated.) Similarly, the motion which is the subject of the Stage 1 decision is “That the Parliament agrees that the [short title] Bill should proceed as a Consolidation Bill.” As with any other Stage 1 motion, that motion may be amended (although, as with other Stage 1 motions, amendments which would cast doubt on the outcome of the amended motion will not be selected). There is normally no debate on the motion, although exceptions may be made (if, for example, the Consolidation Committee has raised serious doubts in its report about the rationale for, or the scope of, the consolidation exercise). If the Parliament does not agree to the motion, the Bill falls (Rule 9.18.5).

3.40 Amendments to such a Bill at Stage 2 (or Stage 3) are inadmissible if the ordinary rules on admissibility (other than the prohibition on “wrecking” amendments – see paragraph 4.19) apply or if they would result in the Bill no longer falling within the definition of a Consolidation Bill in Rule 9.18.1. Any amendment that would cause the Bill to make substantial new provision in the area of the law with which it deals is therefore inadmissible. Amendments may, however, propose changes to how the Bill restates the law and how (if at all) it gives effect to any Scottish Law Commission recommendations.

3.41 At Stage 3, there is a presumption that there will be no debate on the motion that the Bill be passed, although again exceptions may be made.

3.42 A Codification Bill restates both statute law and common law (a Consolidation Bill deals only with statute law). Such Bills are subject to the same requirements in relation to accompanying documents and the same procedure as Consolidation Bills (with appropriate modification e.g. the committee established to consider the Bill would be a Codification Committee) (Rule 9.18A.2).

3.43 Statute Law Repeals and Statute Law Revision Bills are also intended to tidy up the “statute book”, mainly by repealing spent enactments or enactments no longer in force. In the case of a Statute Law Revision Bill, this involves re-enacting those provisions in particular statutes that still have application while repealing the remainder of them.

3.44 The Rules applicable to Consolidation Bills also apply to these Bills with some modifications. Tables of derivations and destinations are not required. The committees established to consider such Bills are known as “Statute Law Repeals committees” and “Statute Law Revision committees”. At Stage 1, the motion is “That the Parliament agrees that the statute law which is repealed/revised in the [short title] Bill should be repealed/revised”. Amendments to a Statute Law Repeals Bill must not cause it to cease to be a Statute Law Repeals Bill: so, for example, an amendment proposing the inclusion in the Bill of a repeal of an enactment which is not spent or which (while spent) does not flow from a Scottish Law Commission recommendation would be inadmissible. Similarly, amendments to a Statute Law Revision Bill may vary the extent of the repeals made by the Bill (but not by adding repeals of provisions still in force or which are still necessary), and may also vary the way in which the Bill re-enacts provisions of Acts which are otherwise spent.

3.45 An Emergency Bill is an Executive Bill that needs to be enacted more rapidly than the normal timetable allows, for example to amend the law in response to a recent court judgement which has exposed a loophole or problem of interpretation in an existing enactment. Such a Bill must first be introduced as an Executive Bill and then be converted to an Emergency Bill by the Parliament, on a motion by a Minister (or junior Minister)²⁴. Unless the Parliament agrees (under Rule 9.3.6) to waive the requirement, an Emergency Bill must be introduced with the same accompanying documents as any other Executive Bill.

3.46 Rule 9.21.2 provides that Stages 1 to 3 of an Emergency Bill are taken on the same day unless the Parliament agrees to a motion by the Bureau proposing an alternative timescale. The Bureau is required to propose, by motion, a timetable for the various stages. This does not affect the power to adjourn Stage 3 under Rule 9.8.5C or refer the Bill back for further Stage 2 consideration.

3.47 Stage 2 of an Emergency Bill must be taken by a Committee of the Whole Parliament.

3.48 Emergency Bills may be amended. The Presiding Officer may determine a time by which amendments must be lodged. If no determination is made, the normal notice periods apply (which in practice is likely to mean that all amendments would be manuscript amendments). So, for example, if Stage 1 of an Emergency Bill finished at 11am and Stage 2 was due to start at 2 pm that day, a Stage 2 deadline of 1 pm might be set. This allows time (albeit very limited) both for members to lodge amendments and for a Marshalled List and groupings to be prepared and made available to members. Manuscript amendments could still be lodged after 1 pm but would be subject to the normal test for manuscript amendments set out in Rule 9.10.6.

² This is generally known as the “Sewel Convention” after Lord Sewel, the Minister who announced the Government's intention to establish such a convention during the passage of the Scotland Bill.

³ For further details, see Procedures Committee, 7th Report, 2006.

⁴ The Executive drafters are known collectively as the Office of the Scottish Parliamentary Counsel (OSPC).

⁵ Because the Parliament has the exclusive right to publish the Bill and the accompanying documents after introduction, the final text of the Bill and accompanying documents are confidential during this pre-introduction period.

⁶ Different requirement apply to Budget, Consolidation, Codification, Statute Law Repeals and Statute Law Revision Bills (see below). For the requirements in relation to Members’ Bills and Committee Bills see paragraphs 3.12 and 3.29.

⁷ Standing Orders use the terms “member of the Scottish Executive”, “junior Scottish Ministers” and “the Scottish Ministers”. The members of the Scottish Executive are the First Minister, the Law Officers and Ministers appointed under section 47 of the Scotland Act; these office-holders are also collectively known as “the Scottish Ministers”. “Junior Scottish Ministers” are appointed under section 49 of that Act to assist the Scottish Ministers in the exercise of their functions. The current administration uses the terms “Cabinet Secretary” and “Minister” to refer, respectively, to Ministers appointed under section 47 and junior Scottish Ministers; however, in this Guidance we use the terms found in the Scotland Act and Standing Orders.

⁸ The Rules on member in charge were amended by the Parliament on 31 January 2002 (Procedures Committee, 1st Report, 2002)

⁹ Bills appear in “pdf” format on the website, so that page and line breaks remain identical to the printed version. This is necessary to ensure that the internet user can make sense of amendments, which are worded by reference to the page and line numbers.

¹⁰ This happened with the St Andrew’s Day Bank Holiday (Scotland) Bill 2005 (SP Bill 41, Session 2)

¹¹ These criteria were announced in Business Bulletin No.26/2001 (9 February 2001).

¹² An example of a Bill dealt with at Stage 2 by a Committee of the whole Parliament was the Census (Amendment) (Scotland) Bill 2000 (SP Bill 8, Session 1).

¹³ The Public Finance and Accountability (Scotland) Bill 1999 (SP Bill 2, Session 1) was dealt with at Stage 2 by both the Finance Committee and the Audit Committee.

¹⁴ Where a schedule is introduced by more than one section, it would normally be taken after the last such section.

¹⁵ Selection of amendments is explained in more detail in Part 4 below.

¹⁶ The JCPC consists of Law Lords and other senior judges and sits in London. Its role in dealing with “devolution issues” in this and other contexts is likely to be assumed in due course by the Supreme Court established under the Constitutional Reform Act 2005 (c.4).

¹⁷ This version of the Bill is not published.

¹⁸ Rule 8.3.2 does not apply to motions for financial resolutions, with the result that a Minister may move such a motion without having either lodged it or added his or her name as a supporter.

¹⁹ Further guidance on proposals for Members’ Bills is available to members on request from NEBU.

²⁰ This rule applies not just in respect of Member’s Bills but also to Ministers or junior Ministers who are members in charge of Executive Bills. However Ministers and junior Ministers by convention do not sit on Parliamentary Committees so in practice (as long as this convention remains) the rule has no application to them.

²¹ See for example the Justice and Home Affairs Committee’s 9th Report, 2000, Proposal for a Protection from Abuse Bill (SP Paper 221).

²² NEBU would not expect to instruct the preparation of a draft Bill until the committee has obtained the Parliament’s approval for its proposal.

²³ Such recommendations may, if they relate to aspects of Scots law identical or similar to the law in other parts of Great Britain, be made jointly by the Scottish Law Commission and the Law Commission of England and Wales.

²⁴ The first Bill that the Parliament passed was an Emergency Bill (Mental Health (Public Safety and Appeals) (Scotland) Bill 1999 (SP Bill 1, Session 1)). The Erskine Bridge Tolls Bill (SP Bill 33, Session 1) and the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill (SP 65 Bill, session 2) were also Emergency Bills.