Part 3: Stages of Bills – the special rules
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.
The Non-Executive Bills Unit
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
The draft proposal
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.
The final proposal
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.
The right to introduce a Member’s Bill
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:
that the Executive will introduce legislation (which could be a Bill or a statutory instrument) to give effect to the proposal within the same session (i.e. the period, usually of four years, between general elections to the Scottish Parliament), or
that Her Majesty’s Government will introduce such legislation within the same or next session (a session at Westminster meaning a Parliamentary year, rather than the span of years between UK general elections).
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).
Introduction of Members’ Bills
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.
Stage 1 of Members’ Bills
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:
the consultation on the draft proposal, or the published material referred to in the statement of reasons, does not demonstrate a reasonable case for the policy objectives of the proposal or does not demonstrate that legislation is necessary to realise those objectives;
the Bill appears to be clearly outwith the Parliament’s legislative competence and it is unlikely that this could be rectified by amendment;
the Bill has deficiencies of drafting that make it unfit to be passed and which are so serious that they would be difficult or impractical to resolve by amendment at Stage 2 or 3.
If the motion is agreed to, the Bill falls.
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.
Congruence between draft proposal, final proposal, and Bill
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.
Participation in meetings by member proposing Member’s Bill
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:
[Convener’s Name] on behalf of the [Name] Committee: Proposal for a [proposed short title] Bill—That the Parliament agrees to the proposal for a Committee Bill under Rule 9.15 contained in the [Name] Committee’s Nth Report, 2007 (SP Paper X).
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 recommendations 23) 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).
Statute Law Repeals and Statute Law Revision Bills
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.
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.