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Report of the Consultative Steering Group on the Scottish Parliament
 
 
SECTION 3.2:
ISSUES RELATING TO MEMBERS, OFFICES AND BODIES OF THE PARLIAMENT
1. This section considers matters relating to the Presiding Officer, the Scottish Executive, Scottish Law Officers, Members, the Scottish Parliamentary Corporate Body and Committees of the Parliament.
 
The Presiding Officer
2. The Scotland Act provides (section 19, sub-sections (1), (2) and (3)) that:
 
(1) The Parliament shall, at its first meeting following a general election, elect from among its Members a Presiding Officer and two Deputies.
(2) A person elected Presiding Officer or Deputy shall hold office until the conclusion of the next election for Presiding Officer under sub-section (1), unless he previously resigns, ceases to be a Member of the Parliament otherwise than by virtue of a dissolution or is removed from office by resolution of the Parliament.
(3) If the Presiding Officer or a Deputy ceases to hold office before the Parliament is dissolved, the Parliament shall elect another from among its Members to fill his place.
 
3. We propose that where there is no Presiding Officer, the oldest Member in the Parliament, who is not a candidate for the posts of Presiding Officer, Deputy Presiding Officer or First Minister, should preside over the election of the Presiding Officer or Deputy.
 
4. While it will be for MSPs themselves to elect their Presiding Officer, we believe that it is important to specify as far as possible the main functions of the post, so that MSPs may make an informed choice as to the most suitable candidate for the job.
 
5. We propose that the main functions of the Presiding Officer should be:
  • to be politically impartial, taking the interests of all Members equally into account;
  • to preside over the proceedings of the Scottish Parliament in the Plenary session, exercising a casting vote in the event of a tie;
  • to apply and give rulings on Standing Orders;
  • to chair the Business Committee, which would prepare proposals for the Scottish Parliament on the agenda, organisation of business etc;
  • to take decisions on the legislative competence of draft Bills; to submit Bills for Royal Assent, and other functions associated with the legislative process;
  • to represent the Parliament in interactions with the Scottish Administration; the UK Parliament; and the devolved Assemblies in Northern Ireland and Wales and any inter-Parliamentary bodies associated with them;
  • to represent the Scottish Parliament in interactions with other Parliaments and Assemblies furth of the United Kingdom.
 
Other Functions
6. We have proposed a number of other detailed functions for the Presiding Officer to which we refer in the relevant sections. For example, we propose that the Presiding Officer should have considerable discretion over the control of conduct in the Chamber, and in applying rules of debate etc. We propose a role for the Presiding Officer in relation to sub judice, and a role in relation to exclusion of both Members and non-Members from proceedings. In every case we have taken into account the dignity of the office, and the need to preserve the impartiality of the Presiding Officer.
 
Impartiality
7. To preserve the impartiality of the office, we propose that the Presiding Officer should not take part in proceedings of the Parliament (eg participate in debates, ask Parliamentary Questions), and should have only a casting vote. We suggest that the casting vote might be, as it is in Westminster, a vote to have the matter reconsidered, or a vote for the status quo, to avoid the Presiding Officer becoming embroiled in political controversy. However, Standing Orders should provide only for a casting vote; the conventions surrounding its use would develop over time.
 
8. While we believe that it is important for the Presiding Officer in the chair to be seen as above party politics, we recognise, however, that due regard must be given to ensuring that, in a Parliament of 129 MSPs, there is a sufficient pool of MSPs willing to stand for the positions of Deputy Presiding Officers (DPOs). If DPOs were to be precluded from voting at any time (except when using the chair's casting vote), this could act as a disincentive to Members who wished to be able to vote on the business of the Parliament when not presiding. In considering this issue, we noted that most Deputy Presiding Officers or equivalents in continental Parliaments are able to participate and vote when not presiding. Provided that, when in the chair, they are seen to act impartially, this does not appear to give rise to difficulties. We recommend that there should be no restrictions on the DPOs' powers to participate in debate or to vote unless they are presiding over the business of the Parliament at the time.
 
9. We recommend that at the first stage of the election of the Presiding Officer, nominations, which should be seconded, should be made from the Plenary. A set period should be allowed for such nominations to be made. A successful candidate would be given the opportunity to speak to accept election after the vote.
 
10. Nominations may be made only at the beginning of the process, not between successive votes.
 
11. A ballot should be held, overseen by the Clerk and 2 scrutineers drawn by lots from the Members who are not candidates.
 
12. If there are more than 2 candidates, the candidate receiving the fewest number of votes in the first ballot should drop out, and successive ballots should be held until a clear winning candidate has been identified.
 
13. The winning candidate should command the support of a simple majority of Members voting, subject to a quorum for the number of Members voting of 25% of all the seats in the Parliament.
 
14. If a clear winner is not identified, the process should begin afresh.
 
15. The DPOs should be elected successively after the Presiding Officer. We would expect MSPs to have regard to our fourth key principle, equal opportunities, in nominating candidates. If the Presiding Officer and first Deputy Presiding Officer elected came from the same political party, then nominations for the second Deputy Presiding Officer should not be allowed for candidates from that party.
 
16. The Presiding Officer and the Deputies may resign at any time. The Deputy Presiding Officers should intimate resignation to the Presiding Officer, who should announce the resignation to Parliament. The Presiding Officer should announce his/her resignation to Parliament. Resignations would be published.
 
17. Standing Orders should provide for a maximum period of 14 sitting days between the resignation of a Presiding Officer or Deputy Presiding Officer and the holding of an election for a successor.
 
18. The Presiding Officer may be removed from office only by an absolute majority of the number of seats in the Parliament: ie, at least 65 votes in favour of removal would be required. The same should apply to Deputy Presiding Officers.
 
19. The voting rights of the Presiding Officer should be restricted to a casting vote. The Presiding Officer should not be able to participate in proceedings of the Parliament, other than to fulfil the functions imposed on him/her in the Scotland Act and proposed in this report.
 
20. The Presiding Officer should be able to delegate any of his/her functions to the Deputy Presiding Officers, subject to the provisions of the Scotland Act.
 
21. There should be no restrictions on the Deputy Presiding Officers' powers to participate or to vote, unless they are presiding over the business of the Parliament at the time.
 
22. Deputy Presiding Officers should be allowed to make a casting vote when they are presiding.
 
The Scottish Executive
Scotland Act
23. Sections 44-50 of the Scotland Act provide for the Scottish Executive. They prescribe the way in which the Executive should be appointed and removed from office, and make associated provisions.
 
Appointment of the First Minister
24. The appointment of the First Minister will have 3 main stages:
  • nomination of a candidate by the Parliament;
  • recommendation of the nominated candidate by the Presiding Officer to Her Majesty The Queen for appointment;
  • appointment of the First Minister by Her Majesty The Queen.
 
25. Any MSP, provided they are supported by a proposer and a seconder, should be able to stand for nomination for First Minister. The names of candidates should be submitted to the Presiding Officer. Following this an election or series of elections would take place by means of a roll call vote of MSPs, in which names should be progressively eliminated until one candidate emerged who enjoyed the support of a simple majority of MSPs. A quorum for voting, equal to 25% of the total number of seats, would be required. The successful candidate would then be recommended by the Presiding Officer to Her Majesty The Queen for appointment.
 
Scottish Ministers
26. The Scotland Act provides that once the First Minister has been appointed by The Queen, he or she may, with the agreement of the Parliament and with Her Majesty's approval, appoint Scottish Ministers. Before seeking The Queen's approval of any appointment the First Minister must obtain the agreement of the Parliament.
 
27. We propose that Standing Orders should remain flexible enough to allow the First Minister to seek the Parliament's approval of the proposals for appointment of Scottish Ministers either individually or en bloc. In any case Standing Orders should provide a mechanism for agreeing to the appointment of individual Ministers in the case of resignations, and other contingencies.
 
28. Agreement to these appointments should be sought on the basis of an amendable motion to enable the Parliament to reject, but not to substitute, particular individuals included in the list submitted by the First Minister should it wish to do so. As the power of appointment lies with the First Minister it would not be appropriate to allow Parliament to add names to the list. A simple majority of those voting, subject to a quorum for voting equal to 25% of the total number of seats, would be required to secure the Parliament's agreement to the motion. We note that the allocation of portfolios to Ministers would be a decision for the First Minister alone and would not be included as part of the motion. However we suggest that such information might be made known to Members on an informal basis.
 
Junior Scottish Ministers
29. The First Minister may, with the agreement of the Parliament, seek Her Majesty's approval to appoint junior Scottish Ministers. We propose that this should be handled in the same way as the appointment of Scottish Ministers.
 
Lord Advocate and Solicitor General
30. The Scotland Act provides that the First Minister may recommend to Her Majesty the appointment or removal of a person as Lord Advocate or Solicitor General. The Parliament must first agree. We propose that the same procedure as that used for the appointment of Scottish Ministers should be used to secure the Parliament's agreement to the appointment of the Law Officers.
 
31. A simple majority of those voting should be required to signify the Parliament's agreement to a Law Officer's removal.
 
Designation by the Presiding Officer
32. The Scotland Act provides that if the office of First Minister is vacant or he or she is for any reason unable to act, the functions exercisable by the First Minister shall be exercisable by an MSP designated by the Presiding Officer.
 
33. We recommend that the Standing Orders need prescribe only how the Presiding Officer's designation should be made and notified to the Parliament. We would expect the Presiding Officer to consult party leaders to identify a Member who would be accepted by the Parliament, but this is a matter best left to the Presiding Officer's discretion and to convention.
 
Vote of No Confidence in the Scottish Executive
34. The First Minister must tender his or her resignation and Scottish Ministers, junior Scottish Ministers and Law Officers must resign if the Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament. If the Parliament subsequently fails to nominate a successor First Minister then a general election has to be called. Given the significance of a vote of no confidence we consider that the procedures which should apply to such a vote should be carefully constructed.
 
35. Any Member should be able to present a motion of no confidence in the Executive. This should be a debatable and amendable motion and should require a simple majority for approval. We recommend that if 26 or more MSPs sign a motion of no confidence, there should be an obligation on the Parliament to programme time for that motion to be debated and voted upon.
 
36. The Parliament should also be able to consider a motion of no confidence in a named Minister. This is not a requirement of the Act and would not automatically lead to the resignation of the Minister concerned. However, if a Minister lost the confidence of the Parliament then the Minister and First Minister would need to consider whether the Minister should continue in office.
 
Resignations
37. We recommend that Standing Orders should provide for the Presiding Officer to notify the Parliament of any resignations made by a member of the Scottish Executive.
 
 
Scottish Law Officers
Scotland Act
38. Section 27 of the Scotland Act provides that if the Lord Advocate or the Solicitor General for Scotland is not a Member of the Parliament he or she may participate in the proceedings of the Parliament to the extent permitted by Standing Orders, but may not vote; and Standing Orders may in other respects provide that they are to apply to him or her as if he or she were a Member. By virtue of section 39(8)(b) the provisions of that section concerning Members' interests applies to the Lord Advocate and the Solicitor General as they apply to MSPs irrespective of whether the Lord Advocate and Solicitor General are themselves MSPs. These arrangements reflect the fact that as members of the Scottish Executive, the Law Officers should be accountable to the Parliament and should be able to be questioned (subject to the safeguards provided in the Scotland Act) on the performance of their Ministerial duties. Clearly should the Scottish Law Officers also be Members of the Parliament, they would be bound by the Parliament's Standing Orders.
 
General Principles
39. We recommend that Standing Orders should be based around the general principle that, as members of the Scottish Executive, the Law Officers should be able to participate fully in Parliamentary proceedings, with the exception of being able to vote. Standing Orders should in all appropriate cases apply to them. By ensuring that Standing Orders remain flexible on this issue it is envisaged that the Parliament would develop its own conventions at a later date.
 
40. In practical terms this means that the Law Officers should be able to participate in debates in the Plenary sessions like any Member of the Executive and to participate in adjournment type debates and to answer questions. They should be able to attend Committee sessions to the same extent as other members of the Executive; and should be able to steer through primary and secondary legislation for which they are the responsible Minister.
 
Members
Scotland Act
41. Section 39 of the Scotland Act requires provision to be made, by or under an Act of the Scottish Parliament, for the registration and declaration of interests of Members of the Parliament and for restrictions on the participation of Members in the proceedings of the Parliament in certain circumstances where they have an interest in a matter to which the proceedings relate. In addition to this the Secretary of State invited CSG to consider and provide advice on the development of a Code of Conduct for MSPs.
 
Code of Conduct for MSPs
42. We propose the following 9 key principles which should form the basis of a Code of Conduct for MSPs. They reflect the recommendations of the Nolan Committee on Standards in Public Life and are broadly consistent with the proposals for a Code of Ethics for Local Government in Scotland and the existing Code of Conduct for Westminster MPs.
 
Public Duty
Members have a duty to uphold the law and to act in accordance with the public trust placed in them; and a duty to act in the interests of the Scottish Parliament as a whole and the public it serves.
 
Duty to Constituents
Members have a duty to be accessible to their constituents. Members should consider carefully the views and wishes of their constituents; and, where appropriate, help ensure that constituents are able to pursue their concerns.
 
Selflessness
Members should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family or their friends.
 
Integrity
Members should not place themselves under any financial or other obligation to any individual or organisation that might influence them in the performance of their duties.
 
Honesty
Members have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
 
Openness
Members should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. Where a Member has received information in confidence, or where disclosure of information might breach an individual's privacy, that confidence or privacy should be respected, unless there are overwhelming reasons in the wider public interest for disclosure to be made.
 
Responsibility for Decisions
Members remain responsible for any decision they take. In carrying out public business Members should consider issues on their merits taking account of the views of others.
 
Accountability
Members are accountable for their decisions and actions to the Scottish people and should submit themselves to whatever scrutiny is appropriate to their office.
 
Leadership
Members should promote and support these principles by leadership and example, to maintain and strengthen the public's trust and confidence in the integrity of Members in conducting public business.
 
Arrangements for Taking the Oath
43. Under the provisions of the Scotland Act MSPs will be required to take the oath of allegiance provided by the Promissory Oaths Act 1868 or to make the corresponding affirmation. If they do not do so within 2 months of the day they are returned, or such longer period as the Parliament may allow then they shall cease to be a Member and their seat will become vacant. No payment of salary or allowances may be made to a Member until the oath is taken. Nor may they participate in the proceedings of the Parliament until they have done so.
 
44. We propose that the Standing Orders for the Scottish Parliament should prescribe that the Clerk should officiate over the taking of oaths prior to the election of the Presiding Officer.
 
45. The Scotland Act provides that the oaths must be taken in meetings of the Parliament. It is proposed that this should be the first business of the new Parliament, prior to election of the Presiding Officer.
 
46. Only the version of the oath as it is set out in the legislation is legally acceptable. We recommend that Members should be able to repeat the oath in a language other than English.
 
Notifying the Presiding Officer of Resignation
47. Section 14 of the Scotland Act provides that an MSP may at any time resign his or her seat by giving notice in writing to the Presiding Officer.
 
48. It is proposed that the Standing Orders should provide for this to be notified to the Parliament by being lodged with the Clerk by the Presiding Officer and published.
 
Determination of a Vacancy
49. Sections 9(5) and 10(7) of the Scotland Act provide for the date on which a constituency vacancy and a regional vacancy occur respectively to be determined under Standing Orders. A by-election must be held within 3 months of a constituency seat becoming vacant. There is no time limit for filling a regional vacancy since that will normally be filled by the next person on the list, or left vacant if originally filled by an independent candidate.
 
50. Constituency vacancies can occur in a number of ways. For example in the event of a death, we suggest that the date should be the date on which the death occurred. In the event of resignation, it might be the date on which the resignation was notified to the Parliament by the Presiding Officer. There will be other ways in which a vacancy may occur. We propose that Standing Orders should simply provide that the date is determined as being the date which is announced to the Parliament by the Presiding Officer, or certified by the Presiding Officer, thus moving the discretion on to the Presiding Officer.
 
Scottish Parliamentary Corporate Body
Scotland Act
51. Section 21 of the Scotland Act states that there shall be a Scottish Parliamentary Corporate Body (SPCB) "to perform the functions conferred on the corporation by virtue of this Act or any other enactment". It also states that the five members of this corporate body will be the Presiding Officer and "four members of the Parliament appointed in accordance with standing orders".
 
Appointment of MSPs
52. We suggest that the four members of the SPCB should be elected by ballot. Nominations should be sought from the Plenary, and nominees should be supported by one proposer and one seconder. The election process would be similar to that for the election of the Presiding Officer and Deputies.
 
Party issues
53. We recommend that Standing Orders make no prescription in respect of ensuring that the four members of the SPCB come from different political parties. The appointment of members to the SPCB is not a political one, and members will still enjoy full voting rights within the Parliament. Indeed, there would be nothing to prevent an independent Member from becoming a member of the SPCB. MSPs' choice should not be restricted, although they may wish to appoint SPCB members from across the political spectrum and indeed we expect all parties will want to contribute to the administration of the Parliament. We believe that a broad provision for the election of Members to the SPCB is all that is needed in Standing Orders.
 
Time limits
54. The Scotland Act does not prescribe any time limit within which the Parliament must elect Members to the SPCB. The SPCB will, however, be responsible for a number of important functions and it would be imprudent for its positions to remain vacant for longer than is necessary. We recommend that if the Scottish Parliament has been unable to appoint 4 Members within, say, one month of the election, the Presiding Officer should be given the power to make appointment of Members to the SPCB.
 
Resignations/Removal/Further elections
55. Paragraph 1 of Schedule 2 of the Scotland Act contemplates that a member of the SPCB will cease to hold office if either he or she resigns or ceases to be a Member of the Parliament otherwise than by virtue of a dissolution, or if another Member of the Parliament is appointed in his or her place. Standing Orders should therefore make provisions about the circumstances in which there should be the appointment of a new member of the SPCB to replace a sitting member. We recommend that Standing Orders are flexible rather than prescriptive on this point to allow the Scottish Parliament to elect a new member whenever the Parliament wants, and where necessary to allow the Presiding Officer to appoint.
 
56. Any member of the SPCB would be free to resign at any time. Resignations would be intimated to the Presiding Officer, who would announce the resignation to Parliament and ensure that it was published.
 
57. We recommend that new appointments to the SPCB should take place after each General Election to the Parliament. This would allow the Parliament to make its own endorsements.

 

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