Scottish Parliament
Procedures Committee
Tuesday 28 November 2006
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: [The Convener opened the meeting at 10:18]
Members' Bills
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The Convener (Donald Gorrie): : The first item of business this morning is consideration of various papers—from Rosemary Byrne, the Health Committee and the Communities Committee—on members' bills, the last of which has just been put before the committee, as it arrived with the clerks after they had sent out the agenda. In her late paper, Rosemary Byrne raises a new point about the support that members who wish to introduce a bill receive from the non-Executive bills unit and so on. I suppose that although the issue impinges on our activities, it is not central to them.
The Health Committee has argued that the cut-off point for introducing members' bills should be earlier. I do not know what colleagues think about that. I should point out that any change will not take effect for three or four years and, at the risk of passing the buck, I think that it might be sensible to leave the matter to the committee in the next Parliament, when there might be different views on the balance between Executive time and the time allocated to members' bills. On the other hand, members might want to make a definite statement on the matter—or perhaps merely make a suggestion—and leave things to the future committee.
Kate Maclean (Dundee West) (Lab): : As a member of the Health Committee, I took part in the consideration of Rosemary Byrne's member's bill. You might be right to suggest that the matter be flagged up in our legacy paper, but any MSP who has sat on a committee has a general idea of how long it takes a bill—even at its quickest—to pass through the three stages. Some of the problem might be alleviated if members showed a bit of common sense. After all, a bill that is introduced in September will not get through the various stages by the end of March.
If committees are to have enough time to consult, take evidence and consider reports on bills, the cut-off point of the September before dissolution is simply too late. It would be far more sensible for the cut-off to be prior to the summer recess, as that would give committees the usual eight to 12 weeks to issue their call for evidence and carry out consultation. However, this is probably a matter for the future committee, as members and organisations should be asked about, for example, the time allocated to consultation and evidence taking. After all, many people do not feel that enough time is given to those aspects.
Mr Bruce McFee (West of Scotland) (SNP): : Having read through the papers—and having only just scanned the late paper that we received—I have to say that my views on this issue are not as hard and fast as Kate Maclean's. I am a member of the Justice 1 Committee, which tomorrow begins its consideration of Des McNulty's member's bill. I am not sure whether it would have fallen foul of Kate Maclean's suggestion that the cut-off time for introducing members' bills should automatically be pulled forward to before the summer recess.
I am interested to find out how many of the Executive bills that are currently under consideration by various committees were introduced before the summer recess—gey few, I suspect. There seems to be a particular problem with members' bills, and I want to know more about the issue before I reach any conclusion. However, I appreciate that, given where we are at the moment, this will be a matter for the next session.
I am a wee bit concerned about a comment in the first paragraph of Rosemary Byrne's letter:
"My experience with the Drug Treatment Bill has … not been a positive one. I feel that I have been misled by the Parliament. I was set strict guidelines and deadlines for the submission of my Bill which I followed to the letter."
I wonder whether that is strictly true. I note that in your response, convener, you say that the bill
"was introduced on 29 September"—
in other words, at the wrong end of the month. As a result, the timescale seems to have been quite tight.
I also note the comments about the potential contentiousness of the bill in question. Perhaps Des McNulty's member's bill might be somewhat less contentious. However, given that we are under no pressure to take a decision and that we cannot undo what has been done, we could seek some more information on this matter. I need to be convinced of the arguments before I agree to any recommendation.
The Convener: : Kate Maclean said that the matter requires proper scrutiny and consultation before any decision can be reached.
Mr McFee: : Indeed.
Chris Ballance (South of Scotland) (Green): : This matter raises quite a few issues. I have a certain amount of sympathy for Rosemary Byrne, who, I assume, met the deadlines that she was given and therefore expected her bill to go through the various stages. Clearly, that has not happened, and we need to clarify the rules in that respect. That said, there is a strong case for having an earlier deadline for introducing member's bills. However, as Bruce McFee pointed out, there is a wider issue, which is the resourcing and treatment of members' bills. The fact that eight members' bills were passed in the first session, whereas in this session a maximum of two are likely to be passed, suggests either that members, having had more experience, are putting in fewer worthwhile proposals or that the system is working to exclude more members' bills.
There is also the issue of the resourcing of NEBU. The Scottish Parliamentary Corporate Body recommended to the Parliament to instruct NEBU not to give assistance to quite a number of members' bills, all of which were in perfectly good order. All of those issues around members' bills should be considered.
Given that we do not have time to make any changes this session, I would be content with a note in our legacy paper. We could recommend that our successor committee launches an inquiry, hopefully soon into the new session, so that members can be certain that if they propose bills, they will be considered.
On members' bills versus Executive bills, the Schools (Health Promotion and Nutrition) (Scotland) Bill was lodged around the time of the member's bill deadline. That bill is going through, whereas none of the members' bills that were submitted at the deadline are.
Kate Maclean: : It very much depends on the bill and the committee's work programme, so we really have to factor in a little bit of extra time. Rosemary Byrne's bill was lodged towards the end of September, but the Parliament first had to agree which would be the lead committee. The first opportunity the Health Committee had to consider the bill was at the beginning of October. Every piece of proposed legislation has a 12-week call for evidence—we would not want to treat members' bills any differently. For a major piece of legislation, a committee would have at least four evidence sessions and possibly two or three further weeks to consider the stage 1 report before presenting it. Within the timetable that is normally given to legislation, we probably would not even have been able to take the member's bill to a stage 1 debate in Parliament. The Health Committee would have spent quite a few weeks taking evidence. Hard-pushed organisations would have given evidence, essentially for nothing to happen, because the bill would not have reached the end of stage 1, let alone stage 3.
The Health Committee is already considering legislation and a member's bill. Some committees might have time to take a member's bill through at this point in the session, although I doubt that any committee could take a member's bill through to stage 3. I will be surprised if the Justice 1 Committee is able to do that. A lot more time has to be factored in to take account of the position that different committees find themselves in. I find it difficult to sit on a committee and decide not to take a bill through when it is something that I feel strongly about, which is the case with drugs issues. I would have been happy to consider the bill, but the committee did not have time to do it.
Richard Baker (North East Scotland) (Lab): : We cannot equate members' bills with simple issues, and Rosemary Byrne's bill was not a simple one. The Health Committee had no other option but to decide not to consider it. I sympathise with Rosemary Byrne, who will be upset that her bill cannot go through. Although it is right to mention the matter in the legacy paper and give the next committee the opportunity to review the situation, members have got to be realistic. It does not take Sherlock Holmes to deduce that there will be a lot of Executive legislation at the end of a parliamentary session and that there will be a huge amount of pressure on time, including that of committees.
Members should be realistic about the point at which they should be proposing bills and about the fact that a deadline is a deadline. It is an arbitrary date, but once a member has been here for three or four years, they know about the pressures on the timetable and they should know that they have to lodge bills as quickly as possible if they are to have a real chance of being considered. I am happy to mention reviewing the deadline in the legacy paper, but the issue might be just as much about advice to members.
If we moved the deadline forward, members would complain about that. Also, committees that have a lighter workload than, for example, the Health Committee might be able to complete consideration of a bill in the period between the current deadline and the end of a session. The guidance to members should say, "This is the deadline, but if you lodge your bill at this point in the parliamentary session it is unlikely that there will be enough time for the committee and the Parliament to consider it." The advice from NEBU should tell members that there is a technical deadline but that they should lodge their bills as soon as possible. However, I am happy for the matter to be included in our legacy paper.
The Convener: : The deadline says, "If you submit your bill after this date, you're dead." It does not say, "If you submit your bill before this date, you're guaranteed to get it through." I would have thought that Rosemary Byrne would understand that. I do not accept that she was "misled by the Parliament." It is important that we get as much support as possible for members' bills, but resources are not infinite. If all 100 back benchers—or however many there are—introduced members' bills, the system would collapse, so we cannot guarantee that all such bills will go through the system. On the other hand, we want those members who do introduce bills to get a fair shot.
We should include the matter in our legacy paper and explain the issues that have been raised with us.
Mr McFee: : You are probably right, convener. Including the matter in our legacy paper is probably the right way to deal with it.
Some members' bills are designed to fail—they are introduced to make a point. Rosemary Byrne's bill is on a serious matter, and I do not believe that it is one of those, but we should bear that in mind.
I believe that the Health Committee has a big workload. In the Justice 1 Committee, we certainly do not have a slack timetable. We meet twice a week—and in the recent past we met three times a week—to try to accommodate what we are being asked to deal with before the end of the session. It is not a question of us simply waiting for somebody to slap us with a member's bill. There is a reasonable prospect that the Parliament will pass Des McNulty's bill before dissolution. The Justice 1 Committee will consider it tomorrow and we will see what happens.
The complexity of members' bills is clearly an issue, but how would we allow for that in setting an earlier deadline? If the deadline was June, Rosemary Byrne's bill would have had a reasonable prospect of becoming law, so I do not want to block off the possibility of an earlier deadline.
Richard Baker said that members should realise that there is a welter of Executive legislation and make appropriate allowances for that, which is true, but there is a huge imbalance in the resourcing of bills. The Executive expects to be able to get through bills that it introduces in September, so perhaps members should have a realistic prospect of that as well. It comes down to resources, which somebody else should consider.
Chris Ballance: : I note that the Communities Committee commented:
"it might be appropriate to introduce a mechanism whereby an assessment of the workload of Committees might be carried before a referral of legislation is made".
We should highlight that important point in our legacy paper.
The Convener: : It has been alleged that bills are sometimes sent to a committee because it has a relatively light workload rather than because the bill is relevant to the committee. We do not want that to happen. The allocation of bills should not be a jigsaw.
Chris Ballance: : Indeed, but the comment was made in the context of changing the standing orders to alter the Communities Committee's remit to allow it to consider the Executive's Schools (Health Promotion and Nutrition) (Scotland) Bill at the same time as three members' bills.
The Convener: : We have given the subject good coverage. Our legacy paper will note some of the relevant points and invite the committee in the next session to consider them.
Journal of the Scottish Parliament
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The Convener: : Agenda item 2 is on the Journal of the Scottish Parliament. Karen Gillon raised an issue on the journal and the clerk has written an explanation of the matter. We have two options. We can accept that, when the rules were changed earlier, one particular rule should have been changed but was not and should now be changed to fit in. In other words, there was never any intention that committees should produce a journal, so we should change the rules to accept that. Alternatively, we can decide that committees should produce a journal of their minutes and then either tell them to do so or say that it would be nice if they had a journal and they can produce one if they wish. I am not sure whether anyone feels strongly on the subject.
Kate Maclean: : We should go for the option of making a consequential change to rule 16.5 to correct the anomaly. We should not deal with the matter any further, because there is no point.
Chris Ballance: : Do we have any evidence on who uses the journal and what its purpose is?
The Convener: : The clerk has a pretty volume, which I think is the first volume of the journal. If I remember rightly, we are several years behindhand.
Andrew Mylne (Clerk): : The journal is now nearly up to date.
Kate Maclean: : To be perfectly honest, it would be a waste of money to do anything else. As nobody even knew what the journal is, it is obvious that we do not all spend our time looking at it.
Chris Ballance: : Either the journal is a waste of money and we should not produce it at all—including for the proceedings of the Parliament—or it is useful and we should therefore produce a journal for committees, too. The present situation seems to be an anomaly, and it treats the meetings of the Parliament as if they are more important than committee meetings, which is not necessarily the case. If the journal has no use and if nobody uses it or is aware of it, why not scrap the whole idea?
The Convener: : Do we have any evidence on how many people consult the journal? If it is a bit behindhand, it may be difficult to get evidence.
Andrew Mylne: : It has been behindhand for some time but, as I say, it has now nearly caught up. The journal has a purpose internally, for staff, but it primarily exists as an historical record. It is not intended primarily for the immediate use of members; it is intended more as part of the long-term record of what the Parliament has done. In that sense, it is part of the archive. For somebody who wants to research what the Parliament has done, it is certainly a lot more convenient and easier to use the journal than look at a lot of individual documents. In particular, the journal has an index that allows people to find when a statutory instrument was laid or when a bill was considered much more quickly than they can do otherwise. The journal has a use.
Chris Ballance: : That suggests that we should extend the procedure to cover committees.
Mr McFee: : In effect, the issue is about archiving and about the wee bits of history that are created. Somebody has to create the journal at some point for people in the future to look back on. I am not against the journal, but I am not in favour of expanding its use. Just as minutes of meetings do not cover every word that is said, neither will the archive cover everything that was said or decided in every committee in every nook and cranny of the Parliament. We should go with the option in paragraph 15 of the paper. An explanation of certain matters was sought from the clerk and a reasonable one has been given. We should therefore make the appropriate changes. We should not expand the journal so that it covers the committees.
I can remember in the early 1990s or late 1980s going to the Mitchell library to look for old county council decisions from the 1960s. I found them, but only because somebody had gone to the bother of archiving the decisions of the old Renfrew County Council. If people do not do such work, decisions will be lost. It may sound sentimental, but we should record what has been done, because there is a place for that.
The Convener: : I feel that most people will look at the Official Report. That is the full report of committees and so on.
Mr McFee: : But probably not in 20 years' time.
The Convener: : I am told that it is all available up in the ether, on the electronic system.
Andrew Mylne: : Yes. All these documents are on the Parliament website. My understanding is that they will be available on the website indefinitely.
Richard Baker: : Let us just go with the option set out in paragraph 15.
Kate Maclean: : That is a relief. People will be able to look back at the minutes of the Procedures Committee nostalgically.
Richard Baker: : And a tear will roll from their eye.
The Convener: : The general feeling is that we accept the option
"to make the consequential change to Rule 16.5 that was overlooked in 2002."
We will put it right this time.
Members indicated agreement.
Transport and Works (Scotland) Bill
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The Convener: : Chris Ballance and I spoke in the stage 1 debate on the Transport and Works (Scotland) Bill, setting out the position of the committee. We focused on the procedural side. We thought that the bill was not strong enough on the involvement of Parliament in future decisions about major rail and road projects. As we know, the Local Government and Transport Committee and the Minister for Transport did not accept our arguments.
The question is whether we still feel that we have a good case and that the rules should give Parliament one serious opportunity to discuss and vote on any major transport scheme. We might wish to lodge an amendment on behalf of the committee to that effect.
Richard Baker: : Chris Ballance and you represented the views of the committee very well in the stage 1 debate. However, the point has been made now and the bill is proceeding. I am quite relaxed about where it is now going. I would have trouble buying into lodging stage 2 amendments. All members can lodge their own amendments if they wish. Perhaps that would be an easier way to progress. I am not particularly perturbed about the direction that the bill is going in at this stage.
Mr McFee: : I think that the bill has taken a totally different direction from the one that we first envisaged. I do not think that it is the right direction, although I think that it is supported by a majority of members. However, this is an area in which the committee should submit amendments, if nothing else to test the arguments, probe the Executive and gain answers to some questions on the record. That is a worthwhile part of the stage 2 procedure. I think that we will probably not win, but that is secondary to getting on the record some of the arguments and answers that ministers will be required to provide.
Chris Ballance: : It is not really about ensuring that the point is made; it is about ensuring that the eventual legislation is good. The committee undertook a detailed inquiry—albeit before I joined—into private bill legislation, and it came up with the recommendation that there should be some form of parliamentary scrutiny. We looked at the Executive consultation in detail and recommended it. If we think that that is the best way for the legislation to go—we clearly have thought that for some time—lodging committee amendments is the right way forward. I will have no hesitation in lodging my own amendment if the committee does not. I am entirely happy to do that. However, I would prefer the committee to be consistent in its views.
Richard Baker: : The committee made its points in its stage 1 report on the bill. There is also room to say that we have pressed the Executive on certain issues. All of us as individual members listened to the Executive's response. I personally do not see huge merit in continually pressing the case when it comes to the points that the committee made previously. I think that I said at earlier meetings that I was not as anxious about some matters as other members were.
My own view—obviously, I dissent from the view of some other members—is that if people are concerned about those points, they can lodge their own amendments. I presume that any committee amendment would need the support of all, or at least most, committee members. I think that the committee should lodge amendments only if it has every intention of getting them passed and should not lodge simply probing amendments. My personal preference is that it should be down to individual members to decide what amendments they lodge. It will be easier to gain consensus on that. However, other members obviously take a different view.
Chris Ballance: : I note that the Minister for Transport said that we had raised "a fair point" and that we needed to get some balance into the system. It may be that there is still room for movement.
Mr McFee: : I understand the point that Richard Baker has made, but the danger of not presenting the argument is that we will not test the case. Chris Ballance is right to point out that the minister accepted the need to strike a balance and that the committee's arguments had some merit. Sometimes when an amendment is lodged, the Executive takes a look at the issue to see whether it can do things better. I do not know whether that will happen if the argument is not put. I accept that the amendment would probably be rejected by the Local Government and Transport Committee, but we should still use the opportunity. If our lodging an amendment results in better legislation, so be it. If ministers have a cast-iron case against our proposal, there will be no movement from them, but we will at least have tested the case. It is our job to test legislation.
The Convener: : Do other members have a view?
Kate Maclean: : The issue was considered before I was a member of the committee, so I do not have a view one way or the other.
Alex Johnstone (North East Scotland) (Con): : Personally, I would need to negotiate with some of my party colleagues on any committee amendment. Consequently, I would be more comfortable if the amendment was lodged in the name of the convener or another member of the committee than if it was lodged as a committee amendment.
Karen Gillon (Clydesdale) (Lab): : I concur with Alex Johnstone. Things have now moved on and other members of my party have taken a different position. The Parliament has also taken a particular position. I would want to consult further on the issue. The committee has made known its view, which has not been accepted. At this stage, I am more inclined to agree that the amendment should be lodged by an individual rather than as a committee amendment.
The Convener: : Clearly, we do not have a sufficient majority among committee members for us to go ahead with lodging a committee amendment. I and others who feel strongly on the issue will need to have some conversations about lodging an amendment. We can seek advice from the clerk on the wording of the amendment.
Papers for Information
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The Convener: : Before we end the public part of today's meeting, I want to mention that we have received a letter from the Conveners Group on committee time in the chamber. The letter makes two points. First, it suggests that there should be greater flexibility in the rule that requires that 12 half sitting days in each parliamentary year be made available for committee debates. The Conveners Group thinks that the rule should be more flexible. I am not quite sure what that means, but we can discuss that.
Secondly, the Conveners Group suggests that a distinction should be made between reports from committees such as ours that deal with housekeeping issues and the quite different reports from subject committees such as the Health Committee or the Environment and Rural Development Committee, which deal with issues of policy that committees want to discuss. The Conveners Group thinks that budget reports, Procedures Committee reports, and Standards and Public Appointments Committee reports should be in a separate category and should not be included in the ration of debating time for committee reports. It says that the Parliamentary Bureau will have to find time for them. I have a lot of sympathy with that point.
The advice that I have received is that the flexibility argument is sufficiently covered in the present rules, but members may wish to pursue the issue.
Mr McFee: : I am not aware from reading the letter of what the argument is for part of that—I do not know whether there is a separate briefing on the matter that I do not have—so I will address the point about the 12 half sitting days. There seems to be a misunderstanding of the current rules on the part of the Conveners Group, unless what is being argued—but not explicitly—is that some of the half days could be banked so that they can be used towards the end of the session. That seems to be implied in the comments in the letter from the Conveners Group about the number of committee reports building up towards the end of the session. Unless the Conveners Group is making the specific argument that some days in the earlier part of the session should be banked and put aside until the last year of the session, I do not know what its argument is. If it is making that argument, I am not sure that the proposal is practical.
Either way, I think that the Conveners Group's suggestion falls, because either it is catered for in the current rules or it would be impractical to try to make a change. I find it hard to see what the Conveners Group is arguing for, in that what it is explicitly arguing for is already the case; if it is implicitly arguing for something else, it should say so.
The Convener: : Yes. I was trying tactfully to say roughly the same thing.
Karen Gillon: : I do not think that we are in a position at this point in the review of parliamentary time to address an issue that we have not even considered and to slot in a rule change without consulting anyone. We would be making a fundamental change to the rules in relation to our committee's debates and Finance Committee debates.
A point that emerged from our discussions with other Parliaments is that unless there is a specific rule that allows such debates to be held, they are not held. One of the Parliaments whose representatives came here had rule changes waiting to be implemented for two sessions, but nobody had timetabled debates on them so they were not heard. At least if the debates are held in the committee slots, we have some control over their inclusion, through the parliamentary process and the back-bench Conveners Group. It would give me cause for concern if we were to say that we want a rule change that would introduce new days without discussing the issue with anybody or considering its implications, how many days would be required and what it would mean for the parliamentary timetable at this point in the session or early in the session.
We have not considered the matter in sufficient detail to slip a wee rule change in at the last moment.
Mr McFee: : I agree with much of what Karen Gillon has said, but I part company with her on the issue of rule changes. I do not see that any rule changes are being requested.
Karen Gillon: : The final paragraph in the letter from the Conveners Group suggests that
"debates on Finance Committee budget reports, Procedures Committee reports on Standing Orders changes and Standards and Public Appointments Committee reports on code of conduct changes should not be included in the 12 half sitting days".
Mr McFee: : Okay. I agree that we should not do that.
I am not aware of committees not securing debates when they want them. Is that fair comment?
The Convener: : No, it is not fair at all. There is a serious queue for committee debates. Some committees will not get the subjects debated that they think should be debated.
Mr McFee: : I do not think that we can address the issue at this stage, but at some point it must be examined. The power is currently in the gift of the bureau. Standing orders state that on the 12 half days committee business is "given priority over" other business. Nothing precludes the bureau from giving priority over Executive business to a debate that a committee wants to be held. My understanding of the rules is that they set a minimum figure.
I do not know whether a cure can be provided by not including the Finance Committee debates and other debates to which the letter refers as business that would come under the 12 half days and therefore increasing the amount of time that would be available for debating other committee business or by having a bureau that is more sympathetic to committees that want to debate issues of substance.
Karen Gillon: : For the next meeting, could we get a breakdown of the number of debates that have not taken place, the implications of not including the debates that are mentioned as business that comes under the 12 half sitting days and the number of days that not including those debates would free up? Such information would be useful if we want to make an informed decision. I certainly do not want to make a decision at this meeting.
I am not aware that the Procedures Committee has taken up masses of debating time. However, I am certainly prepared to support a cap on the time that is spent on mundane debates.
It would also be useful to write to the Minister for Parliamentary Business to ask about what the implications would be if we were to proceed with what has been suggested. We cannot proceed with the suggestion unless we have sufficient information and evidence to do so.
Mr McFee: : I agree.
The Convener: : I entirely disagree with Karen Gillon's point of view. It is important for the Parliament that budget reports, Procedures Committee reports and so on are treated properly and are guaranteed debating time by the bureau when there is reasonable demand for such time to be made available, rather than the Finance Committee and the Procedures Committee having to take their chances with all the other committees. If a Procedures Committee subject is debated, another committee will not have its subject debated. Debates on policy papers from committees and debates on necessary decisions that the Parliament must take on conducting its affairs should be clearly distinguished.
We can certainly consult anyone whom we want to consult. We are not talking about a huge amount of parliamentary time, but separate orders of activity are involved. Confusing committee policy subject debates with parliamentary housekeeping debates is neither logical nor sensible—there should be separate categories.
I have a clear view on the matter; if members disagree with me, I will have to live with that. We are here to defend the Parliament's running of its own affairs. That debates on the things that have been referred to must go into a queue with other committee debates is unsatisfactory.
Mr McFee: : I do not want to widen the argument even further, but some of us argued about Executive time and parliamentary time some time ago, and what we are discussing was addressed by what was said then. However, suggestions were knocked out elsewhere and we are seeing the ramifications of decisions that were taken.
We should remember the Parliament's job of holding the Executive to account as opposed to its job of defending itself. That will not be done if we start from the point of view that all time belongs to the Executive unless otherwise stated, which is, unfortunately, what currently happens. However, what was proposed previously was deemed unworthy of being further consulted on.
The Convener: : The issue that we are discussing is not an item on the agenda, but we could put it on the agenda for the next meeting. We could then discuss any factual information of the sort that Karen Gillon wants if it is provided. Would that be okay?
Members indicated agreement.
The Convener: : We have also received a letter from the Equal Opportunities Committee on amending the standing orders so that committees will report on mainstreaming equalities in their work at the end of every parliamentary session, which means every four years. What do members think about that?
Karen Gillon: : I did not know that the matter was going to be discussed. Could we put it on the agenda for the next meeting?
Mr McFee: : That would be useful.
The Convener: : Fair enough. We will do that.
That concludes the public part of the meeting. We will now move into private session.
: Meeting continued in private until 12:59.