First steps in the legislative process

There have been substantial White Papers on the Scottish Health Service and education and a Green Paper on housing.  The Scottish Law Commission is continuing with its important work on abolition of the feudal system, the law of the tenement and real burdens.  The Scottish Office has also published the first consultation paper on Travel Choices for Scotland which follows upon the transport White Paper released last year and a consultation paper has also been issued on Land Use Planning under a Scottish Parliament.  Clearly, we can expect the Parliament to undertake an ambitious programme of legislation.  But how is it to undertake this task?

• The Scotland Act says little about the actual making of legislation.  Section 36 of the Act simply prescribes three stages for Bills:
• A general debate on a Bill with an opportunity for MSPs to vote on its general principles.
  
• Consideration of, and an opportunity for MSPs to vote on, the details of the Bill, and
  
• A final stage at which a Bill can be passed or rejected.

Clearly, much more will be required, particularly in a unicameral parliament, to ensure adequate scrutiny and quality of legislation.  Furthermore it will be necessary to build into the legislative process adequate safeguards to ensure that Scottish Bills are not likely to be successfully challenged as being outwith the legislative competence of the Parliament, or incompatible with rights arising under the European Human Rights Convention or under European Community Law.

Legislative process

The CSG report envisages that during the first few years the Scottish Parliament might choose to consider 10-12 Bills each year, together with a heavy load of secondary legislation.  Whilst there will be provision for legislation to be proposed by Committees of the Parliament and for private members Bills it is envisaged that the majority of legislation will originate from the Executive.  The CSG recommends that Executive Bills should complete a consultative process before being presented to Parliament.  Committees would undertake a monitoring/enforcing role to ensure the consultation requirements are met.  Committees would also remain able to take evidence relating to the proposed legislation if it was felt that the Executive’s consultation process had been insufficient.

Ministers would require to inform the relevant Committee of the Government’s legislative intentions in its area, including discussion about which relevant bodies should be involved in the pre-legislative consultation process.  The Executive would, in discussion with the appropriate bodies, identify the issues to be addressed and the policy to be introduced.  Committees should be kept informed of progress and when draft legislation is introduced Bills would be accompanied by a memorandum explaining:

• the nature of the problem to be addressed and the strategic approach adopted
  
the options considered and why the proposed option was chosen
the consultative process undertaken

• the best estimated costs, benefit and financial implications
  
• possibly such other criteria as the impact on sustainable development, equal opportunities, implications for islands communities, human rights and business cost compliance

Finally, before a Bill is introduced a draft is to be referred to the Presiding Officer to decide whether or not, in his or her view, the provisions of the Bill would be within the legislative competence of the Parliament.

Executive Bills

The procedure is quite different from that at Westminster where Bills require to go through a broadly similar number of stages in both Houses of Parliament.  There are at least six procedural steps before a Bill is first considered by the Scottish Parliament in Plenary in what might be regarded as the equivalent of a second reading debate.  Committees play a pivotal role both during the pre-legislative process and in the course of the actual Parliamentary proceedings.

The CSG report sets out similar detailed flow charts for Bills originating in Committees and for private members Bills.

It is proposed that the Scottish Parliament should adopt a four-year legislative session.  This corresponds with the fixed term of each Parliament and should allow more time for proper scrutiny.  Importantly, it will avoid Bills being “lost” at the end of the annual cycle as happens at Westminster.

Programming of business

It is recommended that the Parliament should operate open and transparent systems for planning and timetabling business.  The sitting pattern of the Parliament, including the allocation of time for Committee, Plenary and for party political and constituency business, together with details of planned recesses, should be publicised at the beginning of each Parliamentary year.

It is expected that the all-important Business Committee will propose a regular programme of business for Parliamentary approval.  This might be done on a weekly basis.  It is also expected that the Business Committee will agree a timetable for the consideration of legislation in Committees as well as setting an overall timetable for the consideration of other business in the Committees, including the conduct of inquiries.

The daily business of the Plenary, including debates, will also be planned according to a daily timetable.  The intention is to ensure that MSPs have sufficient time to focus on areas of interest to them, balanced against the need to conduct the overall business of the Parliament efficiently.

Well-publicised timetabling coupled with a clear understanding of the detailed legislative stages should ensure that interested parties have adequate opportunity to prepare position papers and brief MSPs on points of interest or concern to them.  There are important opportunities here for Scottish solicitors to advise clients on legislative proposals, the effect which these are likely to have on clients’ business and the most effective manner in which the clients’ interests can be represented to the Parliament.

Sitting periods

The CSG suggests that the Parliament should be in session for approximately 30-33 weeks of the year.  This would allow for a long recess during summer with 2-4 week breaks at Easter and Christmas.  Additional mid-term breaks in February and October could also be built in.

It is proposed that only general provisions relating to the sitting times are included in Standing Orders and these might prescribe that

• Parliament should normally meet between 9.30am and 5.30pm on Tuesday to Thursday; 2.30pm to 5.30pm on Monday; 9.30am to 12.30pm on Friday.
  
• The Parliament should be in recess for a specified number of weeks per year which would enable it to break for the Scottish school holidays
  
• Committees should be able to meet at other times when the Plenary itself is not in session.

Generally, it is recommended that voting in the Parliament should take place at a regular time, for example, towards the end of the day’s business, say from 5pm onwards for Plenary sessions or at the end of a Committee session.  It is, however, recognised that the Parliament should be allowed to vote at any time during a business session, to allow for emergency business.  Such regular voting times would reflect the practice of the European Parliament.

It should be possible to allow for late sittings of Parliament to vote on a Motion to continue sitting until current business is completed; however, standing the principle of creating a family-friendly Parliament, it is recognised that late sittings ought to take place only in exceptional circumstances.

Rules of debate

The Standing Orders will require to set out the detailed rules for the conduct of Parliamentary debates.  The CSG report considered the following matters:

• behaviour - members should conduct themselves in a courteous and respectful manner and at all times respect the authority of the Chair.
• powers to be conferred on the Presiding Officer for preservation of order including determining the order of speakers, time limits for speeches, requiring Members to discontinue where speeches are repetitive, irrelevant or exceed time limits and to suspend Parliament in the case of grave disorder.
• interventions during speeches - to be allowed only with the agreement of the current speaker.
• use of quotations during speeches - to be permitted subject to the provisions relating to repetitive or irrelevant speeches.
• sub judice - Standing Orders are required to include provision for a sub judice rule.  For the purposes of the law of defamation any statement made in the proceedings of the Parliament and publication under the authority of the Parliament shall be absolutely privileged.  However, the proceedings of the Scottish Parliament, unlike those of Westminster, will be subject to the law of contempt of court.  This means that Standing Orders will include provision for preventing conduct which would constitute contempt of court.  We can expect that the general laws of contempt taken together with the Standing Orders will restrict press coverage of some but not all of the proceedings of the Parliament where there would be a substantial risk of serious prejudice to active proceedings.

Official Report of Parliamentary proceedings

The CSG recommends that a transcribed written record of proceedings of the Parliament should be available both on the Internet and in print.  It is now settled law that the Courts can in certain circumstances refer to Hansard in construing legislation and it is envisaged that the Official Report of the Scottish Parliament might be used in a similar way.  This presumably opens the way for Courts to apply Pepper v Hart in respect of Scottish Parliamentary proceedings.  Solicitors should be aware of this possibility! It is likely that reports will be “substantially verbatim” such as the Hansard used at Westminster CSG also recommends that the Scottish Parliament should produce some form of summary report, perhaps edited highlights of each week’s proceedings.  If this proposal is adopted it could provide a readily assimilable report for solicitors the relevant parts of which could be referred to clients with an interest in particular areas of the Parliament’s work.  Emphasis is placed on the use of reporting proceedings by electronic means and it is suggested that a daily printed version will not be necessary.  Taking into account the need to avoid incurring unjustified costs there is a possibility that the printed version of the “ Scottish Hansard” will be published weekly.

Committee proceedings will also require to be reported and it remains to be seen to what extent verbatim reports of committees will be available.  The CSG report recognises that the legal profession finds verbatim reports of Committee consideration of Bills helpful in indicating what a particular provision is intended to mean.  It is to be hoped that reporting of Committee proceedings will be undertaken timeously and in sufficient depth to be of value both to MSPs and to others interested in the detail of legislative proposals.  To do otherwise could result in the Parliament failing to achieve its open, accessible and transparent objectives.  Those unable to attend or be represented at the actual proceedings of Parliamentary Committees could have difficulty in effectively monitoring the progress of important legislation.

Conclusion

Clearly the advent of the Scottish Parliament presents major opportunities for Scottish solicitors.  The profession will be able to do much more than simply identify and interpret the law for clients.  Analysis of legislative proposals, advice on the opportunities to brief Members and to influence the outcome as well as the drafting of amendments to legislation are likely to become an important part of our work.  Once clients become aware of the rules of the new system they will look for our advice.  Is the profession prepared to seize this rare opportunity or do we retreat into our bunkers and leave this brave new world to be explored by accountants, consultants and public affairs advisers who will not hesitate to proffer advice to our clients.  The choice is yours. 

Niall Scott and Alan Boyd are members of McGrigor Donald’s Scottish Parliament Group