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ANNEX A
GUIDE TO COLLECTIVE DECISION MAKING
CABINET APPROVAL OF PROPOSALS FOR PRIMARY LEGISLATION
1. Paragraph 3.2 of the Scottish Ministerial Code provides that: "Ministers should not give undertakings either in or outside the Parliament to introduce primary legislation on any issue without the prior agreement of the Cabinet". What this means in practice is that the Cabinet should be asked to:
(a) Approve the content of future legislative programmes (normally on the basis of a draft programme put forward by the Cabinet Sub-Committee on Legislation);
(b) Agree to the principle of legislation on an issue before any public commitment is given to bring forward primary legislation on that issue and before resources in the Scottish Government Legal Directorate and the Office of the Scottish Parliamentary Counsel are committed to the preparation of the relevant legislation. (This approval in principle will normally be given when the Cabinet discusses and agrees plans for future legislative programmes - see sub-paragraph (a) above);
(c) Approve publication of the consultation document on proposals from primary legislation;
(d) Approve the policy content, and scope and extent, of each Bill before the Bill is issued for consultation or otherwise published;
(e) Approve proposed changes to the agreed policy content of a Bill if the Cabinet Sub-Committee on Legislation considers that the proposed changes are of such significance or sensitivity as to require Cabinet consideration. (See paragraph 3 below)
2. In the case of major Bills, the approval referred to at paragraph 1(c) above should normally be sought in a Cabinet papers put forward by the lead Cabinet Secretary(s) for discussion at a Cabinet meeting. In other cases (particularly where a Bill deals with detailed policy issues that raise no new issues of special significance) it may be appropriate to seek Cabinet approval for the policy content and scope and extent of the Bill via Cabinet Correspondence. The Secretariat of the Cabinet Sub-Committee on Legislation (located within Constitution, Law and Courts Directorate - Constitution and Parliamentary Secretariat) should be given an opportunity to comment on a draft of any paper (Cabinet paper or Cabinet Correspondence) seeking Cabinet approval for the policy content etc of a Bill.
3. Where it is proposed to make (or accept) significant amendments to the policy content of a Bill after the policy content has been approved by the Cabinet, the amendments should be referred to the Cabinet Sub-Committee on Legislation for approval. As indicated in paragraph 1(e) above, where the Sub-Committee considers proposed changes to the policy content of a Bill to be of such significance or sensitivity as to require Cabinet consideration (or where it is unable to agree on a course of action), the matter should be referred to the Cabinet for decision together with the Sub-Committee's recommendation (where appropriate).
4. The Cabinet Sub-Committee on Legislation is also responsible for:
(a) Considering proposals for Member's, Committee and Private Bills and making recommendations on the position to be taken by the Government on each proposal; and
(b) Approving proposals for the Parliament to be invited to give consent by means of a Legislative Consent Motion to the inclusion in UK Bills of legislation relating to devolved matters.
5. Where the Sub-Committee considers the subject matter of a proposed Legislative Consent Motion to be of such significance or sensitivity as to require Cabinet consideration (or where it is unable to agree on a course of action), it will refer the matter to the Cabinet for decision together with its recommendation (where appropriate). In other cases the Sub-Committee will take a final decision on behalf of the Cabinet.
6. In the case of Member's Bills and Committee Bills, the Cabinet should always be given an opportunity to comment on the Sub-Committee's recommendations in relation to the handling of the Bill. In most cases, the Cabinet will be notified of the Sub-Committee's recommendation in a minute from the lead Minister to all Cabinet Secretaries. Formal, and specific, endorsement by the Cabinet of the recommendation made by the Sub-Committee will normally only be sought where the Bill raises issues that are contentious or are otherwise not clear cut.
Cabinet Secretariat
2008
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