Part Four: Private Bill Committee

Part Four: Private Bill Committee

Establishment and membership

Establishment of Committee

4.1 The first formal step to be taken following the introduction of a Private Bill is the establishment of a Private Bill Committee. Like other committees of the Parliament, a Private Bill Committee is established by a resolution of the Parliament. Such a resolution results from the Parliament agreeing to a motion in the name of the Parliamentary Bureau (Rule 6.1.3). The motion should include the name, remit and duration of the Committee. The membership of the Committee may be established in the same or a separate Bureau motion.

4.2 If there are two or more Private Bills in progress at the same time, it is expected that separate Committees will be established for each. There may be occasions, however, when it is appropriate to establish a single Committee to deal with two or more closely-related Private Bills introduced at around the same time. In addition, depending on the number of mandatory and subject committees already established and the number of members serving on one or more of those committees, it may not always be practical for there to be more than one or two Private Bill Committees in operation at any time.

Remit and duration

4.3 The remit of a Private Bill Committee will be to consider and report to the Parliament on the Bill in question. The Rules, guidance and practice applicable to other committees will also apply to Private Bill Committees except to the extent that different provision is made for those Committees in Chapter 9A and described in this Guidance.

4.4 A Committee will normally be established for the duration of the Bill – that is, until the Bill has received Royal Assent, falls or is withdrawn. In practice, its role will normally be at an end once Consideration Stage is completed, but further meetings of the Committee would be required should the Bill be referred back for further Consideration Stage consideration (see paragraphs 5.82-5.84).

Membership

4.5 Under Rule 9A.5.2, a Private Bill Committee shall have at least three but not more than five members.

4.6 There are various constraints on who can serve as a member of a Private Bill Committee. As with other committees of the Parliament, the Bureau is required (Rule 6.3.4) to have regard to the balance of political parties within the Parliament and to take into account the qualifications and experience of any member who has expressed an interest in serving on the committee. Given that Private Bills will not normally raise issues of a party-political nature, the proportions of members from the various parties on such a Committee may depart to some extent from the proportions of seats held by those parties in the Parliament. However, no Committee should ever consist only of members from one political party. In addition, given the small size of each Private Bill Committee, it may be more appropriate to assess conformity with the requirement of party balance by reference to the overall balance of members across various Private Bill Committees over a period of time.

4.7 In addition to these general constraints on membership, the quasi-judicial nature of Private Bill Committees makes it particularly important that the members appointed to it are seen as neutral and impartial. Accordingly, under Rule 9A.5.3, an MSP may not be appointed to a Committee if—

  • his or her principal place of residence is within an area in which works are proposed to be authorised by, or under, the bill;
  •  any land or building owned by the member, or in which the member has a right or interest, would be subject to compulsory acquisition, or use, or under the bill;
  •  the constituency or region that he or she represents, or any part of it, falls within the area in which works are proposed to be authorised by, or under, the bill;
  •  he or she represents a constituency or region that, in the opinion of the Parliamentary Bureau, is particularly affected by the works proposed to be authorised by, or under, the bill;
  •  he or she has a financial interest that, in the opinion of the Parliamentary Bureau, directly relates to the promoter or the subject matter of the bill; or
  •  he or she has any other interest registered in the Register of Interests of Members of the Scottish Parliament5 that, in the opinion of the Parliamentary Bureau, would, or would be likely to, prejudice the ability of the member to participate in the Committee’s proceedings in an impartial manner.

4.8 The function of the Register of Interests is “to provide information about certain financial interests of members which might reasonably be thought by others to influence members’ actions, speeches or votes in the Parliament, or other actions taken in their capacity as members”. In most contexts, the existence of a financial interest requires to be registered and declared in relevant contexts, but does not inhibit the member from participating in the proceedings of the Parliament.

4.9 In relation to a Private Bill Committee, however, the Rules exclude from Committee membership any member with a financial interest that, in the Bureau’s opinion, directly relates to the promoter or the subject matter of the Private Bill, even if the amounts involved do not exceed any registrable threshold applied when members register interests. To ensure that financial interests are known to the Bureau when it is proposing membership of a Private Bill Committee, any member nominated must bring such interests to the attention of Bureau members (Rule 9A.5.4). In addition, the rules exclude from Committee membership any member with a registered interest that (in the Bureau’s opinion) is likely to prejudice his or her ability to consider the Bill impartially.

4.10 At the first meeting of the Committee that a member attends, he or she shall declare that, in his or her capacity as a member of that Committee, he or she will act impartially and will base decisions solely on the evidence and information provided to the Committee (Rule 9A.5.4A).

4.11 Like other committees, a Private Bill Committee cannot commence consideration of any business or vote with fewer than three members present (Rule 12.2.1).

4.12 The circumstances in which a member of a Private Bill Committee may cease to be a member of it are the same as for other committees – namely, resignation, removal from office by the Parliament on a motion of the Committee, and ceasing to be an MSP (Rule 6.3.5). In such an event, the Bureau may appoint a replacement member. However, if the membership of a Private Bill Committee falls below two, the Bureau is required (Rule 9A.5.7) to establish a new Committee.

4.13 If a new Private Bill Committee is established under these circumstances and, at the time of its establishment, the Stage that the Bill was at had not been completed, then the proceedings on it shall recommence at the beginning of that Stage. However, the proceedings may resume at the point during the Stage where the previous Committee left off if the—

person, or persons, whose evidence has already been taken give that evidence again (Rule 9A.5.9(a)); or
those person(s) agree that the new committee can consider the proceedings of the previous committee by viewing a recording or reading the Official Report. Rule 9A.5.9(a)(ii); and
persons referred to in Rule 9A.9.3 (the promoter, those objectors chosen by the Committee as representatives of grouped objections and other objectors identified by the Committee as having interests adversely affected by the Bill) and any other person from whom the Committee has agreed to take evidence, agree (Rule 9A.5.9(b));
Quorum and attendance at meetings

4.14 Partly because of the small size of these Committees and partly because of the special nature of their proceedings, there is a formal expectation on members to attend all meetings of the Committee (Rule 9A.5.5). Members are permitted to be absent from a meeting only in exceptional circumstances. In particular, members are expected to hear all the evidence presented during the Consideration Stage (should the Committee itself undertake Phase One of this Stage itself and not appoint an assessor (see below)). The Rules provide that, at Consideration Stage, a member of the Committee may not participate in any consideration of the merits of an objection, or in any further proceedings relevant to that objection, unless—

all the evidence directly relevant to that objection given orally at Consideration Stage has been given in the presence of the member; or
with the agreement of the persons who gave any such evidence in the absence of the member, and the promoter, the member has viewed a recording of, or read the Official Report of, the meeting at which the evidence was given (Rule 9A.5.6).
4.15 Unlike the position for other committees, members of a Private Bill Committee may not be represented at meetings by substitutes (Rule 6.3A.3).

4.16 In these circumstances, it is particularly important that any member who will, or may, be unable to attend a particular meeting gives early notice to the clerks. Wherever possible, meetings of a Committee will be arranged at times suitable for the members and the other participants. In addition, if at any time during a meeting circumstances arise that makes it necessary for a member to leave, the meeting is likely to be adjourned for a short time, or closed early. Because of the inconvenience this may cause to non-MSPs involved in the proceedings, members should make every endeavour to ensure that such circumstances do not arise.

Convener and Deputy Convener

4.17 Like other committees, a Private Bill Committee must choose a convener at its first meeting. Before that meeting can be held, however, the Parliament must decide the political party of the convener (or that the convener should be a member who is not a member of a political party). The Parliament’s decision is taken on a motion lodged on behalf of the Parliamentary Bureau (Rule 12.1.2), likely, in practice, to be the same motion by which the Committee is established.

4.18 Until that choice is made, the meeting is chaired by the oldest member of the Committee who is present at the meeting and agrees to chair the meeting for that purpose (Rule 12.1.6 and 12.1.19). It is expected that the convener will be chosen simply by one (or more than one) member indicating a willingness to stand and the other members indicating their agreement to that member (or one of those members) being the convener. Should there be any disagreement, the choice may be made by division.

4.19 The convener holds office for the duration of the Committee unless he or she resigns, is removed from office by a decision taken by an absolute majority of the Committee, or ceases to be a member of the Committee or an MSP. If the convener ceases to hold office, the Committee must choose a successor (Rules 12.1.8 and 12.1.9). In these circumstances, the Bureau may propose a fresh motion specifying the party from which the convener is to be taken.

4.20 The convener’s role is to convene and chair all meetings of the Committee and (with the assistance of the clerks) to ensure that it follows the applicable procedures. The convener can vote in any division, and must exercise a casting vote in the event of a tie.

4.21 If the Parliament decides, on a motion of the Parliamentary Bureau, that a Private Bill Committee is to have a deputy convener, the Committee must choose one of its members to occupy that position though this need not be done at the first meeting. As with the convener, the political party from whose members the deputy convener must be chosen is made by the Parliament, on a motion of the Parliamentary Bureau. The role of the deputy convener is to convene and chair meetings of the Committee in the absence of the convener (although, for the reasons given above, this is unlikely to arise). Where the office of convener is vacant, meetings are convened by the deputy convener and chaired by him or her until a convener is chosen. If both offices are vacant a meeting is convened and chaired by the oldest member until a temporary convener is chosen (Rule 12.1.15).

Sub-committees and reporters

4.22 Like other committees of the Parliament, Private Bill Committees can, with the agreement of the Parliament on a motion of the Parliamentary Bureau, establish sub-committees or appoint members as ‘reporters’ (Rules 12.5 and 12.6). However, given the presumption in favour of all evidence being heard by all members, it is not expected that Private Bill Committees will seek to use these powers.

Clerks, advisers and other staff

Clerks to the Committee

4.23 Each Committee has one or more clerks. The clerks are members of the staff of the Parliament whose general role is to provide administrative and procedural support to the Parliament as a whole and to its members. The specific role of the clerk to a Committee is to arrange meetings; prepare the agenda, papers and minutes; provide procedural advice to the convener and other members; liaise with the promoter, objectors and witnesses; and draft the Committee’s reports.

4.24 The clerks do not normally speak during public Committee meetings but may, if invited to by the convener, do so in relation to a factual or procedural query. A Committee may not meet without a clerk present.

Parliament legal advisers

4.25 A Committee may have in attendance one or more legal advisers, who are members of the staff of the Parliament and whose general role is to provide the members and clerks with legal advice.

Official reporters and broadcasters

4.26 For every Committee meeting held in public a substantially verbatim report of the proceedings is published (Rules 16.2 and 16.5). Members of the staff of the Official Report attend meetings and sit at the table for the purpose of preparing this report. A broadcast (audio-visual or audio only) is also made of all public Committee proceedings. Members of broadcasting staff are present at meetings to control cameras and to operate microphones.

Security staff

4.27 Members of the Parliament’s security staff are present during all public meetings. Their role is to assist with public access, maintain order and pass messages to and from members and others.

Advisers

4.28 Like other committees, Private Bill Committees may seek to appoint advisers to assist them in their work.

4.29 In the case of oral evidence at Consideration Stage Phase One being heard by an assessor appointed by the Committee, generally the Clerk to the Committee would assist the assessor in the administrative and procedural arrangements for the hearings and would attend each hearing. However, the other members of Parliament staff identified above are less likely to be in attendance.

Committee meetings

Time and place of meetings

4.30 It is for the Private Bill Committee to decide when it meets. Most Committees cannot meet at the same time as the Parliament itself is meeting. However, a Committee, while it shall not normally meet, or continue to meet, at a time when a meeting of the Parliament is in progress (within the meaning of Rule 12.3.3A), may do so if—

it is necessary for it to do so at that time;
where reasonably practicable, the prior approval of the Parliamentary Bureau has been obtained; and
the business being considered at the meeting of the Parliament is business other than Stage 3, Final Stage or Reconsideration Stage of a Bill (Rule 9A.5.4B).
4.31 A Private Bill Committee may not meet, or continue to meet, when Stage 2 of a Public Bill is being taken by a Committee of the Whole Parliament (Rule 9A.5.4C).

4.32 In practice, however, the deadlines for completion of business set by the Parliament, by competing priorities for accommodation and other resources, and by the other commitments of members are all factors in arranging dates and times of Private Bill Committee meetings. Notice of these meetings is given in the Business Bulletin. Committee members and others invited or expected to attend will be notified directly by the clerks.

4.33 Committees may, subject to the approval of the Parliamentary Bureau, meet anywhere in Scotland. In deciding where to meet (particularly when taking evidence during Consideration Stage), Committees are expected to take into account the strength of local feeling in the area affected by the Bill. As a matter of courtesy, the Committee should inform the relevant constituency and list MSPs and Westminster MP if it is meeting anywhere other than at Holyrood.

4.34 In addition to the formal meetings of the Committee, members may wish to undertake familiarisation visits to the site of any works envisaged in the Bill. Any such visits might be accompanied by the parties although, if accompanied, members of the Committee would not be able to listen to any representations on the merits of the case. Clerks would liaise with objectors and the Bill promoter as necessary over the arrangements for such site visits.

Public and private meetings

4.35 Like other committees, Private Bill Committees normally meet in public (Rule 12.3.4). Any committee may meet in private if it so decides, but it may not do so when considering legislation except where, for the purpose of taking evidence, it decides that it is appropriate that a meeting, or part of a meeting, should be held in private (Rule 12.3.5). It follows that a Private Bill Committee, whose remit is limited to the consideration of legislation, can meet in private only to hear evidence that it considers cannot appropriately be heard in public. This might arise in relation to evidence of a commercially sensitive nature, for example. In addition, like other committees, Private Bill Committees may decide to meet in private to consider a draft report.

4.36 Decisions to hold a meeting, or part of a meeting, in private should if possible be taken at a previous meeting of the Committee. This helps to make clear in advance to members of the public who might wish to attend that they will not be able to do so.

4.37 Committee proceedings held in private are not reported in the Official Reportunless the Parliament has decided otherwise, and are not broadcast (Rule 16.5.2).

Attendance by non-Committee members

4.38 Any MSP who is not a member of the Committee may attend any public meeting it holds. However, non-Committee members are not entitled to participate in the proceedings of a Private Bill Committee during the Preliminary or Consideration Stages (Rules 9A.8.7 and 9A.9.9). In this context, “participation in the proceedings” includes questioning of witnesses (see paragraph 5.45) and discussion of the Bill, as well as moving amendments (see paragraphs 6.34 & 8.5) and voting. In respect of participation, Private Bill Committees differ from other committees of the Parliament.

Conduct during meetings

4.39 As in other committees, the convener chairs meetings of the Committee, and other members speak only at the invitation of the convener. Members speak from their seats and should speak through the convener at all times, unless addressing questions directly to witnesses. Members should not interrupt each other, though they may accept interventions (Rules 7.2.1 and 7.2.4 and 7.8). Witnesses should address their remarks through the chair, except during direct cross-examination of other witnesses. Other witnesses should respect the authority of the convener at all times.

4.40 The convener may limit the time available for a particular item on the agenda. He or she may also determine the order of speakers and limit the time available to any member to speak. The convener has similar general powers to maintain order in the Committee as the Presiding Officer has in the Chamber. In particular, he or she may order a member or any other person present to stop speaking if they have exceeded the time allotted to them, or if they are departing from the subject or repeating themselves (Rules 7.2.2 and 7.2.3 and 7.8).

4.41 In Committee meetings, members address each other in the same manner as in the Parliament, that is, by name (and title if they wish). The convener and deputy convener may be referred to as such.

4.42 All participants in the proceedings must conduct themselves in a courteous, orderly and respectful manner, and must respect the authority of the convener at all times. In particular, they must not behave in a manner that would constitute a criminal offence or contempt of court (Rules 7.3.2 and 7.8).

Matters sub judice

4.43 Under Rule 7.5, members may not make reference to any matter in relation to which legal proceedings are active (for the purposes of section 2 of the Contempt of Court Act 1981), except to the extent permitted by the Presiding Officer. However, under Rule 7.5.4, nothing “shall prevent the Parliament from considering legislation”. In practice this means that the restriction does not apply in relation to proceedings on a Bill. Nevertheless, members should avoid making reference to matters that are sub judice even during such proceedings unless they consider it necessary and appropriate to do so. If in doubt, they should, where possible, raise the matter with the clerks in advance.

Language

4.44 All committees normally conduct their business in English (Rule 7.1). However, if a member wishes to address a Private Bill Committee in Scots Gaelic, or in any other language, he or she may do so with the agreement of the convener. A promoter, objector, witness, or any other person invited to speak by the Committee may also address it in a language other than English with the permission of the convener. Permission should be sought, through the clerks, at least two weeks in advance to allow translation or interpretation facilities to be made available.


 

Footnotes:

5  http://www.scottish.parliament.uk/msps/47942.aspx