Part Six: Amendments

Part Six: Amendments

Introduction

6.1 An amendment is a proposal to change the wording of the text of a Bill. It is the only mechanism that may be used to make such a change, and also a key mechanism for allowing debate on the Bill’s provisions. (Some amendments are lodged primarily to allow an issue to be debated, without any intention to effect a change in the Bill’s text.) All amendments must conform to the rules governing the admissibility, style and content of amendments.

Basic principles

6.2 The Standing Orders relating to amendments are based on two guiding principles: the rule of separate textual amendments and the rule of progress.

Separate textual amendments

6.3 This is the principle that every substantive change to the text of a Bill requires an individual amendment to be lodged, moved and agreed to. As a legislature, the Parliament must agree to the precise form of words that has legal effect, and not just to the underlying policy behind those words. This means that it cannot simply agree, for example, to change every occurrence of word x to word y, since the legal effect of changing x to y will depend on the context in which the word occurs and may be different in each case.

6.4 When the Parliament (or a Committee) agrees to an amendment, it is precisely that amendment – and only that amendment – that may be made to the Bill (the only other changes that are permitted being strictly non-substantive “printing points”). The Parliament (or the Committee) cannot decide only on the principle underlying a change to the text of a Bill; it must also decide on the precise manner in which that change is to be made. Note that some major changes to the legal effect of a Bill can be achieved by a single amendment, whereas other, less major changes may require dozens of separate amendments.

The rule of progress

6.5 The second basic principle is that amendments must be taken and disposed of strictly in order. This order is not always the order in which the sections and schedules appear in the printed Bill but, whatever the order is, it must be followed. It is never permitted to return to a point in the order earlier than the last amendment moved at that Stage of the Bill. This obviously makes it important that amendments are marshalled (i.e. sorted into order) accurately and that a degree of formality is applied in the manner in which amendments are called and disposed of, since mistakes often cannot be rectified at the same Stage. The rule of progress also explains the importance of wording amendments consistently – since this will determine their relative places in the Marshalled List and hence their precedence in debate.

Admissibility of amendments

6.6 Rule 9A.12.5 establishes four criteria for the admissibility of amendments. These are amplified below by reference to the paragraphs of that Rule.

Proper form

6.7 Amendments are almost never ruled inadmissible on this ground alone. An amendment that is otherwise admissible can always be put into proper form – that is the clerks’ job. The form of amendments has been determined by the Presiding Officer (see Annex S).

6.8 It is implicit in this first criterion that an amendment is inadmissible if an identical amendment has already been lodged. This includes not just amendments which consist of only one wording (e.g. “Leave out section 1”) but also amendments that differ from an amendment already lodged only in trivial respects that would have no legal effect. A member seeking to submit such an amendment has the choice of either changing the amendment to make it substantively different from the one already lodged, or adding his or her name to that amendment.

6.9 Amendments must be in English.

Relevance

6.10 This is a key criterion. An amendment is inadmissible if it is outwith the scope of the Bill – though this is not always easy to determine.

6.11 It is sometimes wrongly imagined that the long title alone can be used to determine the scope of the Bill. The long title is intended to provide a concise description of the main purposes of the Bill and so is a useful guide to scope; but it is not definitive. Indeed, the reason why amendments to the long title are permitted (and are taken last) is to allow it to be adjusted to take account of amendments made elsewhere in the Bill – amendments that had to be within the scope of the Bill to be admissible, but were not consistent with the long title as it stands.

6.12 As a rule-of-thumb, where a Bill has only one or two purposes when it is introduced, any additional purpose is unlikely to be relevant; but if the Bill has three or more purposes when it is introduced, it may be relevant to add a further purpose by amendment, so long as the new purpose is no more remote in terms of subject-matter to the existing purposes than those purposes are to each other.

6.13 As well as being relevant to the Bill as a whole, each amendment must be relevant to the provision to which it is made. An amendment to a section, for example, is admissible only if it is relevant to the subject matter of the section. Similarly, an amendment to leave out a section and insert a new section in its place is appropriate only where the new section has essentially the same purpose as the old (but uses a different form of words to achieve that purpose). If the new section is doing something quite distinct, two amendments should be lodged, one to leave out the existing section, the other to insert the new one – the point being that the Parliament (or Committee) should, in that case, have the option of agreeing to one amendment without the other. (Similar considerations apply to amendments to leave out smaller provisions such as subsections and insert new such provisions in their place.)

6.14 Where an amendment is relevant to the Bill but not to any existing section (or schedule), it should be put in the form of a new section (or schedule). In that case, care must be taken to place it appropriately in the Bill. In particular, if the Bill is divided into Parts and Chapters or under italic headings, a new section must be placed under a Part, Chapter, or italic heading to which it is relevant (which is easier if one of those headings is “General” or “Miscellaneous”). If the new section is not relevant to any existing heading, it may be necessary to prefix it with its own heading.

6.15 Under Rule 9A.12.9, an amendment to insert a new section or schedule should “normally” specify where it is to be inserted. “Normally” here means “wherever possible”. For any new section/schedule amendment that is admissible, it must be possible to find a place in the Bill where it can be relevantly inserted – and it should be lodged as an amendment to that place in the Bill if submitted before the Stage begins. But if proceedings at the Stage in question have already progressed beyond the last place where the new section or schedule could relevantly be inserted, then it may be lodged as an amendment to an unspecified place in the Bill. (Before accepting such an amendment, care should be taken to ensure that it conforms to the fourth criterion below.) Such an amendment would be printed under the heading “At an appropriate place in the Bill”.

Consistency with general principles

6.16 This criterion is intended to rule out so-called “wrecking amendments” – amendments that would reverse, substantially alter or render ineffective a principal purpose of the Bill. The rationale for this rule is that, by the time the Bill comes to be amendable, the Parliament has already voted at Preliminary Stage in favour of its general principles. The purpose of Consideration Stage is to subject the Bill to detailed scrutiny and to improve the means by which it gives effect to those general principles. The proper course, therefore, for members who oppose the basic thrust of the Bill is to vote against the motion to approve its general principles at Preliminary Stage – or, if any amendments made at Consideration Stage are insufficient to make it acceptable in their view, to vote against the motion to pass the Bill at Final Stage. What they should not do is attempt, by amendment, to frustrate the general principles of the Bill already agreed to by the Parliament.

6.17 In determining whether an amendment would be inconsistent with the general principles of the Bill, a similar rule-of-thumb to that described under Relevance above is employed. That is, where a Bill is introduced with only one or two principal purposes, an amendment to leave out (or substantially alter) that purpose or one of those purposes would not be admissible; but where the Bill was introduced with three or more purposes, it may be possible to leave out by amendment any one of them without “wrecking” the Bill. In taking a view in any particular case, account would be taken of how substantial the purpose is, the extent to which the remaining purposes would be affected by its removal (or substantial alteration) and how close it is in terms of subject-matter from the other purposes of the Bill. Thus it may be possible to remove by amendment from a multi-purpose Bill a minor purpose that stands apart from the remainder of the Bill and on which the rest of the Bill does not depend, but not to remove a substantial purpose that is central to the Bill as a whole.

Consistency with decisions already taken

6.18 This criterion is intended to prevent decisions taken on one amendment being effectively overturned by a decision on a subsequent amendment at the same stage. Rule 9A.12.11 prevents a later amendment already on the Marshalled List (i.e. that was admissible when it was lodged) being called; but this rule prevents such an amendment being printed if the amendment with which it is inconsistent has already been agreed to. It also prevents an amendment being printed if another amendment that would have essentially the same effect has already been disagreed to. The rationale for this rule is to prevent a member who has been defeated once on an issue simply coming back again with a similar amendment later during the same Stage.

6.19 The question of whether an amendment qualifies as “inconsistent” with a decision already taken will often require judgment to decide; and here in particular the benefit of any serious doubt should always be given to the member seeking to lodge the amendment. If need be, the convener (or Presiding Officer) can be alerted to the issue that the amendment may contravene this rule, so that he or she can alert the Committee (or the Parliament) to the issue when the amendment is taken.

6.20 In particular, if a new section amendment has been disagreed to early in proceedings, it is not permitted to lodge (later in the stage) an amendment to insert the same (or a substantially similar) new section to an unspecified place in the Bill. Such an amendment, if admitted and then agreed to, could undermine the earlier decision. Amendments to insert new sections or schedules at unspecified places are thus, in practice, admissible only where they deal with issues not substantively discussed when the part of the Bill to which they are relevant was being taken.

Role of clerks in determining admissibility

6.21 The clerks aim, where possible, to make amendments submitted conform to the above criteria. Where the changes that are required to make an amendment admissible are non-substantive, they may be made administratively. But where it is only possible to render an amendment admissible by making substantive changes to the wording, the clerk will clear these changes with the member wherever possible. If doubts about the admissibility of an amendment cannot be resolved, the ultimate authority is the convener or (as the case may be) the Presiding Officer (under Rule 9A.12.4).

6.22 Amendments of doubtful admissibility may, if need be, be held back from printing while the issue is resolved, to avoid the situation where an amendment appears in print and is subsequently deemed inadmissible. Where an amendment is so held back, the member who submitted it will be informed. However, amendments lodged on the last day before the deadline for preparation of the Marshalled List should be given the benefit of the doubt and included in the Marshalled List to ensure that notice of them is given before the Stage begins.

Lodging amendments

When an amendment can be lodged

6.23 A Private Bill can be amended at Consideration Stage and at Final Stage. A Bill that is re-committed under Rule 9A.10.6 may be further amended at Consideration Stage and amended again when it returns to Final Stage (to the limited extent specified in that Rule). A Bill that is reconsidered after it has been passed may be amended to the extent allowed under Rule 9A.11.4. At Consideration Stage, amendments may not be lodged until consideration of evidence has been completed (Rule 9A.9.7). At Final Stage, amendments may be lodged as soon as Consideration Stage has been completed (Rule 9A.10.3).

6.24 The deadline for lodging amendments at Consideration Stage (or Reconsideration Stage) is two sitting days before the day on which the consideration of amendments at that Stage begins (Rule 9A.12.2). So where amendments at Consideration Stage are to be considered on a Wednesday, amendments should be lodged no later than Monday. But where Consideration Stage amendments are being considered over more than one day, further amendments may be lodged for the second or subsequent days so long as the same two-day notice period is observed. So if the second day for Consideration Stage amendments was scheduled for the following Tuesday, amendments for that day could be lodged until the Friday preceeding it. The purpose of the notice period is to ensure members have an opportunity to read and think about amendments in advance of the debate, and to allow the clerks adequate time to marshal and group the amendments (see Part 7).

6.25 At Final Stage, the deadline for lodging amendments is three sitting days before the Stage is due to take place (Rule 9A.12.2A).

6.26 At all Stages, amendments may normally be lodged until 4.30 pm on any sitting day. However, at the Consideration and Reconsideration Stages, the deadline for lodging amendments on the final day when amendments for the Stage (or any day at the Stage) may be lodged is 2.00 pm (Rule 9A.12.2). This earlier deadline allows the Marshalled List to be finalised the same day, so it can be published the day before the proceedings take place.

6.27 Amendments for a second or subsequent day of a Stage may be lodged only if they are to a part of the Bill not already dealt with at that Stage. This is easy to determine except where a Stage is being taken over two consecutive days. If, for example, the first day at Consideration Stage is on Tuesday and the second scheduled for Wednesday, then the deadline for the first Marshalled List is the previous Friday. Amendments handed in on Monday would be in time to be added to the second Marshalled List, but only if they relate to parts of the Bill not reached by the end of Tuesday – that clearly cannot be judged on the Monday. In that case, an amendment submitted on the Monday is printed in the Business Bulletin but not in the first Marshalled List (for which it is too late). So long as the point in the Bill to which it relates is not passed during Tuesday’s proceedings, it can be included in the second Marshalled List.

6.28 Amendments lodged after the deadline may be accepted as “manuscript amendments” under Rule 9A.12.6, but only at the discretion of the convener of the Private Bill Committee (at Consideration Stage) or Presiding Officer (at Final Stage and Reconsideration Stage). Procedures for dealing with such amendments are set out in Part 8.

Where amendments are lodged

6.29 Amendments to a Private Bill should be lodged with the clerks to the relevant Private Bill Committee (who will normally be members of the Non-Government Bills Unit).

Which parts of the Bill may be amended

6.30 The sections and schedules of a Bill, together with the long title, constitute the “legislative text” of the Bill. This may be thought of as the Bill itself (as opposed to the document in which it is printed). Anything that would have legal effect (so that if it was any different, the law might be applied or interpreted differently) counts as part of the legislative text. Any part of the legislative text of a Bill – including every section and schedule – may be amended: the long title may also be amended (though normally only in consequence of amendments made elsewhere). The short title may be amended where it is cited in the Bill itself.

6.31 The parts of the Bill that may not normally be amended are Part and Chapter titles, italic cross headings, section or schedule titles, or any of the numbers assigned to any of the component parts of the Bill. (Cross-references in the text of one provision to another provision may, however, be amended.) The principle behind this distinction is that the Parliament must decide what the legislative effect of the Bill is to be, and these other elements can then be adjusted administratively to reflect what the Parliament has decided. So, for example, an amendment to change substantially a particular section might necessitate a change to the italic heading above it, so that the heading continues to describe accurately the provisions that fall under it. If the italic heading is not adjacent to the section in question, a separate amendment to the heading would be inadmissible; but if the two are adjacent, an amendment to leave out the section and insert a new section in its place might replace the heading as part of the amendment.

6.32 Similar considerations apply with punctuation and numbering. For example, an amendment to break up a subsection into two paragraphs, (a) and (b), might only insert the number (b), leaving the (a) to be inserted later as printing. A separate amendment to do nothing more than insert the number (a) is not necessary, but may be lodged if it would make clearer to the reader how the subsection would then be structured.

6.33 Amendments to amendments are permitted (Rule 9A.12.7), and are subject to the same rules as other amendments, save for minor differences of style.

Who may lodge amendments?

6.34 At Consideration Stage, only members of the Private Bill Committee may lodge amendments to a Private Bill (Rule 9A.12.14). At Final Stage (and Reconsideration Stage, if there is one), any MSP may lodge amendments. In each case, there is no limit to the number of amendments that each eligible MSP may lodge.

6.35 Although the promoter cannot directly lodge amendments, it is expected that many amendments will, in practice, be drafted by or on behalf of the promoter. Such draft amendments should be sent to the clerks for circulation to the members of the Private Bill Committee, who may formally lodge them. Where a member of the Committee lodges an amendment drafted by the promoter, the member may (but need not) have the amendment printed as an amendment “on behalf of the promoter”. If lodged for Final Stage, such an amendment will normally be selected by the Presiding Officer.

6.36 As with other items of business, amendments (under Rule 17.4) may be lodged either in writing by the member, or on his or her behalf by a third party whom the member has authorised in writing, or by e-mail if the member has authorised the acceptance of business from his or her e-mail account. (Note that amendments cannot be lodged by fax, nor can they be lodged by e-mail from the e-mail address of anyone other than the member).

6.37 Each amendment must be in the name of just one member, but may also have up to four supporters. At Consideration Stage, only other members of the Private Bill Committee may support amendments (Rule 9A.12.14). Supporters’ names need not be attached to the amendment when it is lodged – they may be added at any time during the period when amendments for the Stage (or the relevant day) may be lodged (Rule 9A.12.3). Where names are added to an amendment that is in print, the amendment is not reprinted just because new names have been added. The additional names will, however, appear when the Marshalled List is printed.

6.38 Part of the rationale for allowing members to support amendments is that member B cannot lodge a particular amendment if member A has already done so – but B may add his or her name as a supporter of A’s amendment. Under Rule 9A.12.7A, an amendment may be withdrawn by the member who lodged it, but only with the consent of all supporters and only during the period when amendments for that Stage may be lodged. So by adding his or her name to A’s amendment, B can prevent the amendment being withdrawn in advance and so be assured of the opportunity (under Rule 9A.12.15) to move it if A does not. Where the member who lodged an amendment seeks to alter it (or lodge a new version in substitution), the consent of any supporters to the original amendment is only required if the alteration is substantial (or the new version substantially different). If any such supporters’ consent has not been obtained, their names must be left attached to that version of the amendment (that cannot therefore be withdrawn).

6.39 Supporters’ names cannot be added to a manuscript amendment, nor can such an amendment, once lodged, be withdrawn in advance of the Stage (Rule 9A.12.3). As with any other amendment, it is of course open to the member who lodged a manuscript amendment not to move it when it is called.

Correcting amendments after lodging

6.40 All members - and others - with an interest in a Bill are advised to check Section G of the Business Bulletin every day during the period when amendments may be lodged, to ensure they have seen and considered all amendments lodged to the Bill. It is particularly important that members who lodge amendments check them carefully in the next day's Bulletin. The clerks do often make minor changes of wording and structure to ensure that amendments are, so far as possible, consistent with the structure and drafting style used in the Bill. As noted above, clerks make every effort to clear changes of substance with members before sending them for printing, but this is not always possible and occasionally the purpose of an amendment may be misunderstood. It is the responsibility of members to ensure that amendments published in their name achieve the intended purpose.

6.41 Members who wish to correct amendments that have been published should contact the relevant clerks as early as possible. If the corrections are substantive (i.e. non-trivial) but do not change the overall purpose of the amendment, the corrected amendment will appear on the Marshalled List marked with an asterisk (*). This alerts other members to the fact that the amendment is not the same as the version previously published with that amendment number. (New amendments - i.e. those not previously published - are also asterisked on the Marshalled List.) Where a more fundamental correction is sought, a new amendment must be lodged and is printed in the Bulletin as "in substitution for" the earlier amendment. This procedure ensures that maximum notice is given of the new amendment, while simultaneously alerting other members to the fact that the earlier amendment has been superseded.

6.42 It follows that major corrections (i.e. those that would require an "in substitution" amendment) can only be made up to the deadline for lodging amendments at that Stage, whereas minor corrections may be made at any time until the Marshalled List is finalised. However, members should notify the clerks of all corrections as early as possible, since in practice the deadline for finalisation of the Marshalled List may not be much later (particularly at Consideration Stage) than the deadline for lodging amendments. The published Marshalled List is treated as a definitive document - that is, the only amendments that may be moved and agreed to (aside from any manuscript amendments that may be lodged) are those printed on the List.