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Report of the Consultative Steering Group on the Scottish Parliament
 
 
SECTION 3.5:
THE LEGISLATIVE PROCESS
 
Introduction
1. In considering the detailed process through which legislation should be made in the Scottish Parliament, we have been influenced in particular by our key principles of power-sharing and of access and participation. It is important that those most affected by legislation should have the opportunity to influence the development of the policy leading up to the legislation. We therefore propose an important role for Committees in the scrutiny process. We have also sought to ensure that the Executive is fully accountable to the Parliament on the legislation, both primary and secondary, which it introduces. Finally, we have sought to ensure that there are adequate arrangements in place to enable Committees to initiate legislation, and for individual Members to put forward proposals.
 
Primary Legislation
2. One of the things that will distinguish the Scottish Parliament from other devolved assemblies is the fact that it will be able to enact primary legislation on a wide range of issues affecting Scotland. While we do not envisage that the Parliament will have to pass significant numbers of Acts of the Scottish Parliament each year, we expect that certainly in the first few years it might choose to consider 10-12 Bills each year, together with a heavy load of secondary legislation. This section sets out our proposals for the policy development and pre-legislative process; the 3 stages of a Bill; legislation originating in the Executive, Committee and the individual Member; secondary legislation and private legislation.
 
The policy development process
3. The design of a uni-cameral Scottish Parliament has led many to focus on the important role that Committees may play as the "revising Chamber" in scrutinising draft legislation. While our proposals for Committees recognise the need for a strong role for Committees in considering legislation, we believe that there is a need to extend the process to form a recognised policy-development stage. This has been echoed in many of the submissions made to us. A formal, well-structured, well-understood process would not only deliver a scrutiny stage pre-Introduction, but would also allow individuals and groups to influence the policy-making process at a much earlier stage than at present. By making the system more participative, it is intended that better legislation should result.
 
4. Consultation, in the form of inviting comments on specific legislative proposals for example, would not meet our aspirations for a participative policy development process. We have noted elsewhere that there is a perception among those we consulted (and within our own group) that once detailed legislative proposals have been published, in whatever form, it is extremely difficult for outside organisations to influence changes to those proposals to any great extent. What is desired is an earlier involvement of relevant bodies from the outset - identifying issues which need to be addressed, contributing to the policy-making process and the preparation of legislation.
 
5. There appears to be little doubt that, while Members and Committees in the Scottish Parliament will have the power to initiate legislation, the majority of legislation will originate from the Executive. This is the case in the various Parliaments we have looked at. Given that there should be some form of participative involvement in the development of legislative proposals, we recommend that Standing Orders should require Executive Bills to complete a consultative process before being presented to Parliament. The role of the Committee would essentially be a monitoring/enforcing role to ensure the requirement is met. The Committee would always remain able to take evidence relating to the legislative proposals if it felt that the Executive's consultation process had been insufficient.
 
6. Under this model, the relevant Minister would inform the relevant Committee of the Government's legislative intentions in its area, including discussion about which relevant bodies should be involved in the consultation process. The Executive would, in consultation with the appropriate bodies, identify the issues to be addressed and the policy to be introduced. The Committee should be kept informed of progress. When the draft legislation is introduced by the Executive, Standing Orders should require such drafts to be accompanied by a memorandum explaining the need for the legislation, the options considered, the consultative process undertaken, and the degree of consensus reached. Committees would be able to monitor the Executive's performance in this area, and to take additional evidence if necessary. The benefits of this model include:
  •   involving relevant bodies in the development of policy and the legislative process at an early stage;
  • allowing the Executive, as the elected Government, to take forward its policies;
  • ensuring proper participative consultation by the Executive through giving Committees a supervisory role;
  • freeing up valuable Committee time, allowing Committees to focus on proposals which have already been the subject of participative involvement of interested bodies.
 
Introduction of a Bill
7. We recommend that the Scottish Parliament should have the ability to require Bills to be presented in a particular form. We favour the model used in some continental Parliaments where a Bill is prefixed by a memorandum (separate from the preamble which forms part of the completed Act) explaining:
  •   the nature of the problem it is intended to address, and the strategic approach;
  • the options considered, and why this particular option was chosen;
  • the consultative process undertaken;
  • the best estimated costs, benefits and financial implications;
  • possibly, such other criteria as the impact on sustainable development, equal opportunities, implications for Islands communities, human rights and business cost compliance.
 
8. Before or on the introduction of a Bill, the Presiding Officer is required by section 31 of the Scotland Act to decide whether or not, in his or her view, the provisions of the Bill would be within the legislative competence of the Parliament, and to state his or her decision.
 
9. We propose that a Bill should not be introduced before the draft Bill is first referred to the Presiding Officer for his or her consideration. The interpretation of the legislative competence of the Parliament is legally complex and cases may arise where there is genuine uncertainty as to where the boundary should be drawn. The Presiding Officer may want to consult a legal adviser before reaching his or her decision, but that need not be prescribed in Standing Orders. Standing Orders should provide for the form of the statement of a decision by the Presiding Officer on legislative competence to the Parliament and for it to be published.
 
Stages of a Bill
10. The Scotland Act (section 36) requires Standing Orders to provide 3 stages in the consideration of a Bill. We recommend that Stage 1, debate and vote on the principles of the Bill, should be conducted in Plenary. A Bill, once introduced, should be referred to the relevant Committee, which should consider and report on the general principles in the Bill, to inform a debate and vote on the principles of the Bill in the Plenary session.
 
11. The role of the Committee as proposed would be to provide a report to the Parliament as to whether or not the Bill should be approved in principle. It would not at this stage be a detailed consideration on a line by line basis of the Bill's content. At this stage, the Committee would also be able to comment on the Memorandum accompanying the Bill, in particular on the extent of consultation undertaken, and to recommend whether further evidence should be taken to inform the next stage of consideration of the Bill.
 
12. Following a debate and positive vote in Plenary on the principles of the Bill, the Bill should be referred again to Committee for detailed consideration. Where there are 2 or more interested Committees, one Committee should be identified as the "lead" and other interested Committees should submit their views to the lead Committee within a specified time.
 
13. A specified period should be required to elapse between the debate and vote in Plenary on the principles of the Bill, and detailed consideration in Committee. During this period all MSPs should have the opportunity to propose amendments to the Bill, which would require to be considered in Committee. If further evidence were to be taken, it should be done during this period.
 
14. Committee stage should be able to be taken by the Plenary rather than being remitted to an individual subject Committee.
 
15. The third stage of the Bill should be a debate and final vote on the Bill, as amended in Committee. The Bill returned to the Plenary from the subject Committee should be accompanied by a report explaining the Committee's reasons for the amendments made. Plenary should then consider the Committee report. Further amendments should be allowed at this stage. Standing Orders should specify tight criteria for what sorts of amendments might be moved. The Bill as then amended should in Plenary session be passed or rejected by the Scottish Parliament. A quorum of Members, equivalent to at least 25% of the total number of seats, would be required to vote, to allow a final decision on a Bill to be taken on a simple majority vote.
 
16. Where the Judicial Committee of the Privy Council has decided that a Bill, or any of its provisions, are outwith the legislative competence of the Scottish Parliament, (or where the Secretary of State has made an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent) the Bill or its relevant provisions would have to be amended. It should be open to the Executive to propose to withdraw the Bill at this stage, subject to the Parliament's agreement. If the Executive does not withdraw the Bill, then the Bill should be remitted to the relevant Committee for amendment to address the problem identified by the JCPC, before being approved or rejected by the Parliament.
 
17. Standing Orders should allow for the minimum requirements for gaps between stages of Bills, and for proceedings to be expedited in the case of Bills which the Parliament agrees are emergency Bills. For example, it might not be necessary to remit such a Bill to Committee before the debate and vote on the principle of the Bill. Such Bills, needed to deal with emergency situations, might be introduced by a member of the Scottish Executive as an "urgent Bill", put to the vote, and if accepted as an urgent Bill by the Parliament, should be subject to a shortened scrutiny.
 
Bills Initiated in Committee
18. The SCC report and the White Paper "Scotland's Parliament" envisaged the possibility of Bills being initiated by Committees of the Parliament. We endorse the proposal that Committees should have the power to initiate legislation (see section 3.2).
 
19. We recommend that Committees of the Scottish Parliament should have the capacity to conduct inquiries (which would include the taking of written and oral evidence) on the need for legislation or further legislation in any area within their terms of reference. The Committees should report on such inquiries, with recommendations; such reports might include reference to the matters on which the Scottish Executive is required to provide information when promoting a public Bill (in a manner consistent with a legislative proposal as opposed to a draft Bill). In a Plenary session, the Scottish Parliament would adopt, or reject, the Report. The question of what should happen then needs to be clarified. If the Executive were required to provide a response to such Committee reports, before the Plenary debate, then it should be clear whether the Executive intended to introduce legislation on the lines proposed. If not, then the adoption of the Report by the Parliament should provide authority for the legislation to be drafted, within a given time if that is specified by the resolution of the Parliament. The Committee Convener should be authorised to instruct the preparation of a Bill on behalf of the Committee, within a given time if that is specified by the resolution of the Parliament. If the Executive indicated that it would bring forward the relevant legislation, then the Committee should not proceed to instruct.
 
20. Following introduction and a general debate and vote on the Bill in Plenary session, the Bill should follow the same procedure as proposed above for Bills proposed by the Executive with the exception that the detailed scrutiny of the Bill at its Committee stage might be undertaken in Plenary session.
 
Private Members' Bills
21. Individual Members should be entitled to submit written proposals for legislation to the Presiding Officer. Such proposals should be brought before the Plenary if either they could secure the support of a minimum number of MSPs (perhaps 10% of the total), or by submitting them to the relevant subject Committee which should then have a discretionary competence to initiate an inquiry on the need for such legislation and to report to the Scottish Parliament. We also recommend that individual members should be able to introduce no more than 2 Bills in any Parliamentary session.
 
Legislative session
22. We propose that the Scottish Parliament should adopt a 4-year legislative session. This would allow more time for proper scrutiny and would avoid important Bills being "lost" at the end of the annual cycle.
 
23. It is proposed elsewhere in this report that the Executive should announce its forward legislative programme for the full Parliamentary session soon after each election. (In practical terms, this would most likely be when Parliament resumed following the summer recess after the May election.) It should, however, be open to the Executive to come forward with a revised programme from time to time throughout the session, to enable it to respond to changing circumstances. Indeed, the Executive should be required to inform Parliament annually of its planned timetable for bringing forward legislation.
 
Bills - Queen's Consent
24. Schedule 3, paragraph 7 of the Scotland Act requires that Standing Orders provide for ensuring that a Bill containing provisions which would, if the Bill were a Bill for an Act of the UK Parliament, require the consent of Her Majesty, the Prince and Steward of Scotland or the Duke of Cornwall, shall not pass unless such consent has been signified to the Parliament.
 
25. It is proposed that, in the case of Executive Bills, the onus should be placed on Departments of the Executive to recognise that consent should be sought, and arrange for the First Minister to write requesting the necessary consent from Her Majesty. In the case of Private Members' Bills and Committee Bills we propose that the office of the Parliament which handles legislation should alert the Private Member or the Committee Convener who would ask either the First Minister or the Presiding Officer to obtain Queen's Consent.
 
26. Once Her Majesty's consent has been received, the Presiding Officer should be notified and should ensure that a note was put on the Order Paper, stating that Her Majesty's Consent has been signified. To ensure accuracy, the Clerk of the Parliament (or one of his or her assistants) could endorse the record copy of the Bill.
 
Subordinate Legislation
27. The Interpretation Act 1978 describes subordinate legislation as "Orders in Council, orders, rules, regulations, schemes, warrants, bylaws and other instruments made or to be made under any Act". Generally speaking, subordinate legislation allows the Executive (subject to Parliamentary approval) to fill in the details of the implementation of policy already agreed by the Parliament in primary legislation.
Position
28. Until such time as the Scottish Parliament chooses to make its own legislation to provide for the passage of subordinate legislation through the Parliament, the Statutory Instruments Act 1946, with modifications to suit the circumstances of the Scottish Parliament, will be applied. Initially, Standing Orders will have to reflect the transitional arrangements, although such Standing Orders may need to be adjusted should the Scottish Parliament decide to enact its own legislation.
 
General
29. It is common at Westminster for detailed implementing provisions to be prescribed in secondary legislation. Such provision can have a significant impact on those affected by the provisions. Because of the volume of secondary legislation it is often difficult for interested groups and individuals to keep track of proposals, and consultation on secondary legislation is limited. There should be meaningful consultation on secondary legislation before it is laid before the Scottish Parliament. The Parliament should seek to ensure that significant provisions are included in primary rather than secondary legislation.
 
Committees
30. We propose that all subordinate legislation from the Executive which is required to be laid in the Parliament, should be sent both to the relevant subject Committee and to a delegated legislation Committee, similar to the current Joint Committee on Statutory Instruments (JCSI) which serves both Houses at Westminster. Such a Committee would have two main functions: it would examine the provisions within Bills conferring powers to make subordinate legislation, and it would examine subordinate legislation brought before the Parliament, not from a policy perspective but to assess whether it was intra-vires. The Committee would be able to report its concerns on any technical aspect of subordinate legislation.
 
31. All subordinate legislation should be passed to the subject Committee, which would want to consider all subordinate legislation coming before it. However the Committee would neither want, nor be able, to debate all subordinate legislation in detail. It is proposed that the Committee might look at a weekly list of all subordinate legislation submitted and consider which it would like to examine in more detail perhaps in debate. It would be informed by reports from the Committee on subordinate legislation. In the case of affirmative Statutory Instruments (where the approval of the Parliament will be necessary) it is likely that the Committee would want to consider the proposed legislation and report to the Parliament with its recommendations. In the case of Statutory Instruments subject to negative resolution, the Committee would have 40 days to decide whether it wished to oppose the piece of legislation. The Committee could choose to debate the SI in Committee, with a report and a motion going to Plenary as a result of the Committee debate. If the Committee felt that the legislation, or their concerns about it, were of sufficient significance that they wanted the legislation to be debated in Plenary, the Committee would indicate this to the Business Committee.
 
32. It will of course be open to all MSPs to "pray against" negative subordinate legislation. (The term is used in the Statutory Instruments Act 1946, and means simply that Members may indicate their objection to a piece of subordinate legislation. The term "pray against" must be used until the Scottish Parliament decides its own legislation. We recommend that in any new provisions, more accessible language should be used.) In the first instance MSPs should indicate their concerns to the relevant Committee, which could consider whether it wished to debate the legislation and consider whether it wished to recommend that the Plenary should be asked to vote on the legislation. MSPs would be able to explain their concerns to the Committee. It would also be open to MSPs to make their views known to the Business Committee if they felt that legislation should be debated in Plenary.
 
33. It is also proposed that, if debate on an affirmative SI has taken place in Committee and a report laid before the Parliament, there is less need for further debate to take place in Plenary, unless such consideration is recommended by the subject Committee or the Business Committee. A vote should normally suffice. A similar procedure should be put in place for negative SIs where the Committee recommends annulment. No action would be required if the Committee had agreed that no opposition should be made.
 
Private Legislation
34. In Scotland, when local authorities or other bodies (eg Railtrack) wish to obtain Parliamentary powers, they may proceed through the promotion of a draft Provisional Order under the Private Legislation Procedure (Scotland) Act 1936. The detailed procedures which deal with Scottish private legislation are laid down in a set of General Orders (the equivalent of Standing Orders) under the 1936 Act. It is intended that under the general power to prescribe transitional arrangements, the Secretary of State will prescribe that, until such time as the Scottish Parliament enacts its own legislation for handling private legislation, procedures mirroring those in the Private Legislation Procedure (Scotland) Act 1936 will apply to private legislation promoted on devolved matters, except that, where there are references to the UK Parliament, these should be interpreted as meaning the Scottish Parliament and references to the Secretary of State should be interpreted as being to the Scottish Ministers. For the purpose of the Standing Orders, therefore, we have assumed that the 1936 procedures will apply. It is, therefore, proposed that until the Scottish Parliament makes its own legislation, the General Orders from Westminster should simply be replicated (and modified where necessary to take account of the Scottish Parliament) in the Scottish Parliament's Standing Orders.
 
Summary of Recommendations for Standing Orders
Standing Orders should:
 
  • require draft Bills on Introduction to be accompanied by a memorandum explaining the consultative process undertaken and the degree of consensus reached, as well as
  • the nature of the problem it is intended to address, and the strategic approach;
  • the options considered, and why this particular option was chosen;
  • the consultative process undertaken;
  • the best estimated costs, benefits and financial implications;
  • possibly, such other criteria as the impact on sustainable development, equal opportunities, implications for Islands communities, human rights and business cost compliance.
  • provide that a Bill should not be introduced before the draft Bill is first referred to the Presiding Officer for his or her consideration.
  • provide the form of the statement of a decision by the Presiding Officer on legislative competence; and for it to be published.
  • provide that a Bill, once introduced, should be referred to the relevant Committee, which should consider and report on the general principles of the Bill to inform a debate and vote in Plenary. At this stage the Committee should also be able to comment on the Memorandum accompanying the Bill and to recommend whether further evidence should be taken to inform the next stage of consideration of the Bill.
  • provide that following a debate and positive vote in Plenary on the principles of the Bill, the Bill should be referred to Committee for detailed consideration.
  • provide that all MSPs should have the opportunity to propose amendments to a Bill, which should be considered in Committee.
  • provide that Committee Stage should be able to be taken by the Plenary.
  • provide that the Bill returned to Plenary from Committee should be accompanied by a report, explaining the Committee's reasons for the amendments.
  • provide that further amendments, subject to tightly specified criteria should be allowed at this stage.
  • provide that for the final vote to accept or reject a Bill, a quorum of Members, equivalent to at least 25% of the total number of seats in the Parliament should be required to vote. A simple majority of those voting would be required for a Bill to be amended.
  • provide for expedited procedures for Bills which the Parliament agrees are emergency Bills.
  • provide that Committees should be able to conduct inquiries, take evidence and report to the Parliament with recommendations for legislation.
  • make provision for the Parliament, in Plenary, to adopt or reject the Report.
  • provide that if the Committee's proposals for legislation are accepted, and the Executive does not indicate that it will bring forward such legislation, the Committee Convener should be authorised to instruct the preparation of a Bill on behalf of the Committee.
  • provide that individual Members should be entitled to submit written proposals for legislation to the Presiding Officer. Such proposals should be brought before the Plenary if either they could secure the support of a minimum number of MSPs (perhaps 10% of the total), or by submitting them to the relevant subject Committee which should then have a discretionary competence to initiate an inquiry on the need for such legislation and to report to the Scottish Parliament.
  • make provision for signifying Queen's Consent when necessary.
  • require all subordinate legislation from the Executive which is required to be laid in the Parliament, to be sent both to the relevant subject Committee and to the Delegated Legislation Committee.
  • in the case of private legislation, replicate the relevant General Orders at Westminster (with appropriate modifications).
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