Part One: Hybrid Bills
The Scotland Act and Standing Orders
1.1 The Scotland Act provides minimum requirements about the process to be followed by the Parliament in passing Bills. Section 36(1) requires there to be at least three distinct stages to which Bills are subject – namely a stage when members can debate and vote on the general principles of the Bill; a stage when they can consider and vote on its details; and a final stage when the Bill can be passed or rejected. This 3-stage model may be departed from in relation to specific types of Bill, and after a Bill is passed an additional stage of consideration must be provided for in the case of certain references to the Judicial Committee of the Privy Council, or where an order of the Secretary of State is made further to section 35 of the Scotland Act (Secretary of State’s power to intervene in certain cases).
1.2 The Standing Orders of the Parliament provide its procedural framework. The process governing the passage of a Hybrid Bill is set out in Chapter 9C of the Standing Orders. However, the rules in Chapter 9C need to be read in the context of the Standing Orders as a whole – including in particular, the rules relating to the management of business (Chapter 5), proceedings in committee and in the Parliament (Chapters 6, 7 and 12), on Public Bills (Chapter 9) and on decision-making and voting (Chapter 11). It should be borne in mind, in particular, that any of the rules (except to the extent that they reflect requirements of the Scotland Act) may be suspended or varied on a particular occasion or for a particular purpose (Rule 17.2).
Definition of a Hybrid Bill
1.3 A Hybrid Bill, according to Rule 9C.1.1 of the Standing Orders of the Scottish Parliament, “is a Public Bill introduced by a member of the Scottish Executive which adversely affects a particular interest of an individual or body in a manner different to the private interests of other individuals or bodies of the same category or class”. Rule 9C.1.2 sets out that a Hybrid Bill to which that particular rule applies is one which seeks to authorise the construction or alteration of such classes of work as determined by the Presiding Officer (see Annex K) or one which seeks to authorise the compulsory acquisition or use of any land or buildings. Although a Hybrid Bill is essentially a Public Bill, elements of the Hybrid Bill process take account of the private interests of particular individuals or bodies who may be affected by such a Bill.
1.4 Public Bills may be introduced by a Minister of the Scottish Executive, an individual member of the Scottish Parliament, or a committee convener, and range from major Bills of Scottish Executive policy to small amending Bills, Budget Bills and Bills to tidy up the statute book, commonly they all involve only changes to the general law and matters of public policy. As such, they are subject to a process that is entirely parliamentary in character and in which only MSPs, elected to serve the public interest, participate.
1.5 A Hybrid Bill is a Public Bill that is introduced by a Minister of the Scottish Executive to make provision about the public and general law; however its provisions can also directly affect the interests of particular individuals or bodies. These individuals or bodies are entitled to participate in the proceedings. The procedures in place for Hybrid Bills are largely similar to those for Public Bills. However they also incorporate certain procedural safeguards where the Hybrid Bill process may affect the private interests of particular individuals or bodies.
Devolution and the limits of legislative competence
1.6 Immediately prior to devolution in 1999, all Bills affecting Scotland were introduced in, and subject to the procedures of, the United Kingdom Parliament (that is, the two Houses at Westminster). Some such Bills were limited in extent to Scotland, while others extended to the whole of Great Britain or the United Kingdom (often with some distinct provisions extending only to Scotland).
1.7 Section 28(1) of the Scotland Act 1998, provides that “subject to section 29, the [Scottish] Parliament may make laws, to be known as Acts of the Scottish Parliament”. Section 29 of that Act imposes limits on the Scottish Parliament’s powers to legislate, setting out tests of its “legislative competence”.
1.8 Legislative competence is defined according to five criteria (set out in section 29(2)). Expressed in general terms, those criteria are:
- that the Parliament can only legislate in or as regards Scotland;
- that it cannot legislate in relation to the “reserved matters” set out in Schedule 5 to the Act (which include key elements of the constitution, foreign affairs, defence and social security, plus a range of more specific matters in home affairs, trade and industry, energy and transport, among others);
- that it cannot modify certain matters set out in Schedule 4 to the Act (which includes the Human Rights Act 1998 and certain provisions of the Acts of Union and the European Communities Act 1972);
- that its legislation must be compatible with the Convention Rights and with European Community law; and
- that it cannot remove the Lord Advocate from his or her position as head of the system for criminal prosecutions and the investigation of deaths in Scotland.
1.9 The Scottish Executive should ensure that everything it seeks by way of a Hybrid Bill would be within the Scottish Parliament’s legislative competence before embarking on the process described in this Guidance. It will also be aware that any Hybrid Bill introduced in the Scottish Parliament will be subject to various legislative competence checks before, during and after its passage through the Parliament. It may only be introduced if accompanied by a statement of the Presiding Officer’s view on whether or not the Bill is within the Parliament’s legislative competence (under section 31(2) of the Scotland Act). Secondly, if passed by the Parliament, it could be subject to challenge by the Advocate General, the Lord Advocate or the Attorney General, who have the power (under section 33 of the Act) to prevent it being submitted for Royal Assent until any doubts about legislative competence have been resolved. Finally, even where it has been enacted, a provision in an Act of the Scottish Parliament may be subject to challenge in the courts on the basis that it is outwith the Parliament’s legislative competence.
Layout and presentation
1.10 Although the procedures are different, Hybrid Bills in the Scottish Parliament are very similar, in terms of layout, structure and the conventions of legislative drafting, to Public Bills. This is because all Bills that are enacted become Acts of the Scottish Parliament (ASPs) and are not distinguished, in terms of presentation, according to the type of Bill from which they originate. In particular, hybrid ASPs are numbered in the same single series as Public and Private ASPs.1
1.11 Scottish Hybrid Bills are therefore almost identical in appearance to Scottish Public Bills. The layout of Bills in the Scottish Parliament, although broadly similar to that adopted by both Houses of Parliament at Westminster, is different in a number of respects. In particular, they are printed on a distinctive purple paper.
1.12 Standing Orders require Hybrid Bills to be in “proper form” (Rule 9C.1.6). The Presiding Officer has made a determination of “proper form” which, together with recommendations on the content of Bills, is reproduced at Annexes B and C (see also paragraphs 2.9-2.11).
1.13 Users of this Guidance who are unaccustomed to dealing with primary legislation may find it useful to familiarise themselves with the information given in Annex C, which explains the structure of Hybrid Bills and certain common features of drafting.
1 The numbering of ASPs is currently established by article 4 of the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (SI 1999/1379).