Part Five: Stages of a Bill

Part Five: Stages of the Bill

The three-Stage process

5.1 All Private Bills will be subject to a three Stage process. These are––

Preliminary Stage
Consideration Stage
Final Stage
5.2 A separate Reconsideration Stage is also possible in certain circumstances (see paragraphs 5.90-5.97).

Preliminary Stage

5.3 This Stage begins once the Bill has been printed and a Private Bill Committee established. The Parliamentary Bureau then refers the Bill to the Committee (Rule 9A.8.1). The Committee’s role is to produce a report on whether to recommend to the Parliament that the—

general principles of the Bill should be agreed to; and
Bill should proceed as a Private Bill.
5.4 In addition, the Committee is required to give preliminary consideration to any objections and to give full consideration to any objections to the whole Bill (in the context of the consideration of the general principles of the Bill). Each of these three functions in explained in more detail below.

Consideration of general principles

5.5 In considering the general principles of the Bill, the Committee should consider the Bill “in the round” without focusing unduly on points of detail that are more properly a matter for Consideration Stage. Although it is not required to take oral evidence at this Stage, the Committee is likely to offer the promoter an opportunity to explain what the Bill does and why it is considered necessary. The Committee would likely do this through the submission of written evidence supplemented by the hearing of oral evidence. The Explanatory Notes and the Promoter’s Memorandum will also assist in these respects.

5.6 If the Committee has substantial doubts at this Stage about the Bill’s general principles, and is considering recommending that they be disagreed to, it should give the promoter an opportunity to respond to such doubts.

Consideration of whether the Bill should proceed as a Private Bill

5.7 The second main issue for the Committee to address in its Preliminary Stage report is whether the Bill should proceed as a Private Bill. This in turn involves the Committee satisfying itself on two points: first, that the Bill conforms to the definition of a Private Bill set out in Rule 9A.1.1, and secondly that the Bill’s accompanying documents conform to Rule 9A.2.3 and are adequate to allow proper scrutiny of the Bill (Rule 9A.8.3).

5.8 On the first of these points, the Committee should establish the identity of the promoter, for example, to satisfy itself that a promoter who is an unincorporated association of persons has been properly constituted as such. It should also establish whether the Bill involves obtaining for the promoter “powers or benefits in excess of or in conflict with the general law”. A Bill should not proceed as a Private Bill if a statutory remedy is not necessary to achieve the result sought; nor should it proceed if the result sought would more appropriately be achieved by means of changes to the general, public law (i.e. by a Public rather than a Private Bill) that would give the same powers or benefits to others in a similar position, without the need to single out the promoter.

5.9 On the second point, the Committee should establish that each accompanying document meets the requirements set out in the relevant paragraph of Rule 9A.2.3, and that it does so in a way that is suitable for the intended purpose. For example, the Committee should consider whether the Explanatory Notes give sufficient information to explain the effect of the provisions of the Bill; and whether the Promoter’s Statement provides sufficient information about advertisement of the promoter’s intention to introduce the Bill.

5.10 If the Committee takes the view that the accompanying documents do not meet the requirements of Rule 9A.2.3, or are not adequate to allow for proper scrutiny of the Bill, it will not normally decide to recommend that the Bill should not proceed as a Private Bill without first offering the promoter an opportunity to provide supplementary accompanying documents (Rule 9A.8.4). It is for the Committee to specify what further documents it requires and to set a reasonable timescale within which they must be provided. Under Rule 9A.8.5, supplementary accompanying documents must satisfy the same requirements of form as apply to the original accompanying documents. The clerks will make similar arrangements for the publication and distribution of supplementary accompanying documents as were made for the original accompanying documents (Rule 9A.8.6).

5.11 Previous Private Bill Committees have, at a very early point in their proceedings (e.g. at the first meeting), considered and agreed what the Committee’s approach to Preliminary Stage will be. This has included decisions on which organisations, bodies, individuals other than the promoter it wishes to invite to submit written and/or give oral evidence and on what particular issues. Committees have also considered and agreed provisional timetables to which they work for the purposes of inviting written evidence, holding oral evidence meetings and publishing their Preliminary Stage report. Agreeing and publishing such details allows all affected parties, the promoter and objectors, to be aware of how and when the Bill will be taken forward.

Consideration of objections

5.12 The third main role of the Committee at Preliminary Stage is to give preliminary consideration to any objections lodged, and to give full consideration to any objections to the whole Bill.

5.13 It is not the Committee’s role at this Stage to decide the admissibility of objections; that is settled at the time they are lodged by the clerks (paragraph 3.7). Preliminary consideration is limited to the Committee satisfying itself that each objection is based on a reasonable claim that the objector’s interests would be clearly adversely affected by the Bill. If the Committee is not satisfied on that point, it may reject the objection (Rule 9A.8.2). The Committee may (but need not) offer an objector an opportunity to be heard at a meeting of the Committee before deciding whether to reject their objection.

5.14 As regards objections to specified provisions of the Bill, this is not the time to consider the substance of such objections (that is for Consideration Stage). However for those objections (or part of objections) that relate to the whole Bill, the Committee will first give preliminary consideration to such objections and, if satisfied that the objections are based on a reasonable claim, then give detailed consideration to them in the context of its consideration of the general principles of the Bill. The Committee’s approach to the handling of such objections (in terms of selection and grouping of objections and evidence gathering) will replicate the process by which objections to specified provisions are dealt with at Consideration Stage.

5.15 If an objection relates to the whole Bill as well as to specified provisions, that part of the objection regarding the whole Bill will be dealt with at the Preliminary Stage, but the remainder of the objection would be allowed to continue to the Consideration Stage.

5.16 If an objection is rejected at the Preliminary Stage, the objector will be informed of the Committee’s decision by the clerks. The fee paid for lodging the objection will not be refunded in these circumstances. The Parliament’s procedures do not provide for a right of appeal against such a decision although the decisions of the Parliament and its committees may be subject to review by the courts.

Preliminary Stage Report

5.17 Once the Committee has completed its detailed consideration of the above issues, it will prepare a report to the Parliament. The report is published in hard copy (and will be made available in each relevant public library) and made available on the Parliament’s website.

5.18 The report will contain a recommendation to the Parliament on whether the general principles of the Bill should be agreed to and whether the Bill should proceed as a Private Bill. It will also set out the result of the Committee’s preliminary consideration of objections and list any objections rejected (Rule 9A.8.2) on the ground that the objector’s interests are not clearly adversely affected. The report will also include the Committee’s decisions with regard to any objections against the whole Bill. If the Committee upholds an objection against the whole Bill, the Committee will recommend to the Parliament that the general principles of the Bill are not agreed to.

Preliminary Stage Debate

5.19 After the Preliminary Stage Report has been published, the Parliamentary Bureau will recommend, in a Business Motion, a time in the Parliament’s Business Programme for a Preliminary Stage debate. If the Business Motion is agreed to, the agreed Business Programme is advertised in Section B of the Business Bulletin.

5.20 The Preliminary Stage debate takes place on a motion, lodged in the name of the convener of the Committee, reflecting the recommendations of the report. The procedural possibilities depend on the form of the motion.

5.21 One possible motion is “That the Parliament agrees to the general principles of the [title] Bill and that the Bill should proceed as a Private Bill”. If a motion in that form is agreed to by the Parliament (whether on a division or otherwise), the Bill proceeds to Consideration Stage. If such a motion is not agreed to, the Bill falls (Rule 9A.8.10).

5.22 Alternative forms of motion may be used where the Committee either did not recommend that the general principles be agreed to, or that the Bill should proceed as a Private Bill, or both. (For example, “That the Parliament does not agree to the general principles of the [title] Bill and does not agree that the Bill should proceed as a Private Bill”). If any such motion in that form is agreed to (whether on a division or otherwise), the Bill falls. If any such motion is not agreed to, the Bill also falls. The Bill could only proceed to Consideration Stage on the basis of such a motion if the motion was first amended. The necessary amendment (in relation to the motion given as an example above) would be to leave out “does not agree to the general principles of the [title] Bill and does not agree” and insert “despite the recommendation of the [name] Committee, agrees to the general principles of the [title] Bill and agrees”. Any MSP may lodge such an amendment, which is subject (like all amendments to motions) to selection by the Presiding Officer (Rule 8.5.6).

Consideration Stage – Phase 1 (Evidence)

5.23 If the Bill is approved by the Parliament at the Preliminary Stage debate, it is then for the Private Bill Committee to take Consideration Stage (Rule 9A.9.1).

5.24 The overall purpose of Consideration Stage is to consider the detail of the Bill. Within that, there are two distinct phases, distinguished by the style of proceedings. The first involves the Committee meeting in a quasi-judicial capacity to hear evidence on the Bill and on objections to it; the second involves it meeting in a legislative capacity to consider and dispose of any amendments (some of which may have arisen out of objections that the Committee upholds).

5.25 The role of the Private Bill Committee at Phase 1 is to act as arbiter between the promoter and objectors and to report its decisions to Parliament. This involves allowing differences between the parties to be resolved by negotiation but also, where that is not possible, choosing between them. Before it can do so, the Committee must ensure that each party has had a fair opportunity to present its own case and question the opposing case. This may involve the leading of evidence and the cross-examination of witnesses and their evidence.

5.26 It is worth considering factors that determine the length of phase one of Consideration Stage. For example, the number of outstanding issues arising from objections and the complexity of these issues is one factor. However, overarching this is the number of objections that actually proceed to oral evidence at Consideration Stage, i.e. those objections on which a satisfactory agreement has not been reached. That is why promoters and objectors are encouraged to enter into early dialogue to seek resolution of objections whenever and wherever possible.

Selection and grouping of objections

5.27 At the beginning of the first phase of Consideration Stage, the Committee must agree from whom to invite evidence, and whether to invite oral evidence, written evidence or both.

5.28 The Committee has only limited discretion about whom to invite. Under Rule 9A.9.3(a), it must invite the promoter. With objectors, the Committee should first group objections that it considers to be the same or similar. From each group, the Committee must then select one or more objectors to co-ordinate evidence (whether oral or written) on behalf of that group (Rule 9A.9.4). For the purpose of grouping, objections will normally be treated as similar only if they give similar reasons in opposition to similar aspects of the Bill. This ensures that all legitimate arguments are considered, while avoiding unnecessary repetition.

5.29 Of the remaining objections i.e. those that the Committee cannot (or chooses not to) group, it must invite every objector whose interests would (in the Committee’s opinion) be clearly adversely affected by the Bill to give evidence. This power of the Committee at Consideration Stage to decide not to invite evidence from certain objectors is separate from its power at Preliminary Stage to reject objections on similar grounds. Only objectors whose interests are (in the Committee’s opinion) clearly not adversely affected by the Bill may be rejected outright at Preliminary Stage.

Timetabling

5.30 A timetable will normally be prepared for the hearing of evidence. Depending upon circumstances this will normally be prepared in one of the following ways––

the clerks may draft a timetable following informal discussions with the promoter and objectors;
the Committee members may wish to meet parties informally before agreeing a timetable; or
the Committee may wish to discuss and agree a timetable at its first evidence-taking meeting.
5.31 Where possible, discussions on timetabling will take place at least two weeks in advance of the commencement of the taking of oral evidence. This will allow the Committee to provide those witnesses whom it invites to give oral evidence (whether in front of it or an assessor appointed by it) with adequate notice. Where the Committee intends to meet outwith Edinburgh to take evidence, it may be necessary for it to finalise the list of oral witnesses at the beginning of the first such meeting. In that event some witnesses may be required to be on stand-by to give their evidence. Any such witnesses will be given as much advance notice as possible.

5.32 Prior to any meeting to discuss timetabling, the promoter and objectors will be expected to provide in writing the following details of any witness they would wish to support their position––

name and position;
summary of their evidence;
the expected time required to give their evidence; and
availability to attend.
5.33 Such information should ideally be available seven days in advance of the timetabling discussions to allow copies to be given to other parties. The clerks will liaise with all parties as necessary on this.

Written evidence

5.34 In some instances written evidence will be invited and a timescale for this to be received will be set. Written evidence should wherever possible be succinct, concise, focussed and as non-technical as possible and set out in numbered paragraphs. Clerks will provide a template for the submission of written evidence. The electronic submission of evidence is greatly encouraged as this eases distribution and speeds up the evidence gathering process. It is not necessary for written evidence to repeat material already available to the Committee in the accompanying or other documents.

5.35 All written evidence submitted must relate to the original objections. It may not raise, for example, any unrelated new issues not raised in the relevant original objections. The evidence should clearly state those issues upon which there is no disagreement between the objectors and promoter. Any evidence that does not relate to issues in the original objection will not be considered by the Committee (or any assessor).

5.36 The following is an example only of an approach to gathering written evidence where the Committee agrees the grouping of objections and lead objectors of such groups (it is for each Committee to consider and agree on what approach it will take)—

Step 1

5.37 A letter is issued to all objectors and the promoter informing them of the outcome of the meeting at which the Committee considers and agrees its approach to Consideration Stage (decisions on groupings, lead objectors). The letter might invite the submission from each objector group of—

written evidence on each outstanding issue identified in each objection within the group that the group wishes to pursue;
provisional witness lists i.e. the witnesses each group will put forward on each topic of evidence; and
invite each group to provisionally indicate how long it will take to present its oral evidence and cross examine witnesses.
Step 2

5.38 Upon receipt of the written evidence from each group, a copy would be forwarded to the promoter inviting it to—

respond to the written evidence received on each outstanding issue raised by each group;
submit provisional witness lists i.e. the witnesses the promoter will put forward on each topic of evidence within each group should the Committee wish to hear oral evidence on the issues raised; and
provisionally indicate how long it expects to take to present its oral evidence and cross examine witnesses for each group.
Step 3

5.39 Upon receipt of the promoter’s written evidence response, a copy would be forwarded to each group inviting it to submit a further written response on each outstanding issue.

Step 4

5.40 Upon receipt of each group’s response evidence, the Committee would expect to be in a position to invite its assessor to proceed to oral evidence hearings.

5.41 The intention of such an approach is to filter down to the outstanding issues to be pursued through oral evidence. At this point, each group and the promoter could be invited to finalise their respective witness lists and firm up their expected timescales for cross-examining witnesses. This assists in finalising the timetable for oral evidence hearings. It should however be noted that the Committee has discretion as regards who to call for oral evidence and how much evidence to hear. For example, the Committee may refuse to hear evidence which in its opinion is irrelevant or repetitious or on an issue not raised in the original objections.

5.42 Objectors are encouraged to include within their evidence details of amendments they would like to see made to the Bill.

5.43 To ensure fairness to all, written evidence submitted will be published in electronic form on the Committee’s home page on the Parliament website and as part of the Committee’s report when published. If, exceptionally, an objector has grounds for not wishing their written evidence to be published, then this must be indicated to the clerks. The Committee will then consider any such requests.

Legal representation

5.44 If the Committee decides that an objector (or a representative of objectors that the Committee has grouped) should be invited to give oral evidence, it is a matter for the promoter and each objector to decide whether or not to employ legal or other representation to appear for them in the proceedings before the Committee (or any assessor). There is no obligation to employ legal or other representation and parties may represent themselves. It is expected that each party that chooses to employ any representation will bear the costs of so doing. Parties may of course reach alternative arrangements if they so wish, but that is not a matter for the Parliament.

Order of proceedings

5.45 It is for the convener of the Committee to call witnesses to speak and to determine the overall order of proceedings. However it is expected that the Committee will first hear from the promoter, followed by questioning of the promoter by Committee members themselves and cross-examination by objectors in whatever order the Committee determines. It will then be for objectors to present their evidence (in the agreed order), each objector being subject to questioning by the Committee and cross-examination by the promoter. The parties will be expected to have regard to the overall timetable to which the Committee is working (and on which they would have been consulted). Oral evidence should focus only on those matters that remain in dispute between the parties.

Additional evidence and witnesses

5.46 If, during the Consideration Stage evidence-taking, one of the parties wishes to introduce additional written evidence or propose that an additional witness be heard, a formal request should be made via the clerks. It is for the Committee itself (or any assessor appointed by the Committee) to decide what evidence is taken and which witnesses are heard.

Assessor

5.47 At Preliminary Stage, the Committee can decide to direct the Scottish Parliamentary Corporate Body (SPCB) (subject to the Bill proceeding to Consideration Stage) to appoint an assessor to consider and report to the Committee at Consideration Stage (Rule 9A.8.2A).

5.48 The Procedures Committee report, Private Bill Committee Assessors6 recommended that the Private Bill procedures to be changed. In essence, the report proposed that Private Bill Committees should have the option of appointing an independent assessor to hear and consider objections during the first phase of Consideration Stage. The primary benefit of the proposal was described as its capacity to ‘reduce the burden on MSPs in dealing with what are at times highly complex and technical matters’, while also enabling the process to be conducted more efficiently.

5.49 The Parliament agreed to the changes and Chapter 9A of Standing Orders has been amended to include provision for the appointment of an assessor (and related procedures).

5.50 While an assessor could report to the Committee in the ways highlighted above, it remains the sole duty of the Committee to decide and report on any outstanding objections at Consideration Stage. Standing Orders are clear that the Committee can accept in whole or in part, or reject, any report by an assessor. Furthermore, after an assessor reports, the Committee could take such other steps as it thinks fit, for example, referring further matters to the assessor for consideration and report, or itself taking further evidence.

5.51 Should the Committee decide to appoint an assessor, then under Rule 9A.8.2A the Committee may, during Preliminary Stage, direct such an assessor to report to it in one or both of the following options—

Option 1: Grouping, invitations and evidence

5.52 The assessor would recommend to the Committee in a report—

the objections that are the same or similar and which should be grouped under rule 9A.9.4;
which objectors should be chosen to give evidence in relation to the objections so grouped; and
whether the invitations to give evidence should be invitations to give evidence orally or in writing.
Option 2: Evidence only

5.53 The assessor would report on the evidence given and report with such recommendations on the basis of that evidence as the assessor considers appropriate. The other functions of grouping objections and then inviting written and oral evidence would be undertaken by the Committee (as expanded on above).

Data Protection

5.54 As previously referred to (see paragraphs 3.12-3.17) the Parliament must process all written evidence under the terms of the Data Protection Act 1998. All written evidence submitted will be seen in full by the assessor, the promoter and the Committee, i.e. without deletion of personal data7 or sensitive personal data8 concerning objectors.

5.55 However, any personal data concerning a third party who is not an objector will not be forwarded to the promoter unless the clerks receive the clear written consent of the person whom the data concerns. If the clerks do not have that consent, they will forward the written evidence to the promoter with this third party data deleted and no further evidence will be taken on that specific matter.

5.56 In submitting written evidence objectors should therefore avoid the inclusion of personal or sensitive personal data unless this is necessary to make a particular point. For example, written evidence must include the names and titles of witnesses, but there is no need to include their phone numbers, addresses and other contact details. It will be for the lead objector to ensure that objectors or third parties agree to the inclusion of their personal data in any evidence submitted to the Parliament.

5.57 All written evidence will be published on the Parliament’s website. However, all personal data or sensitive personal data will be removed from the published version.

Consideration Stage Report

5.58 Once Phase One has been completed, the Committee will prepare a report giving its decisions on the objections considered with reasons where appropriate. Such a report may also indicate areas where the Committee expects the Bill to be amended during the second phase of Consideration Stage. In the event of an assessor being appointed by the Committee, the Committee’s report will take into consideration the conclusions and recommendations made in the assessor’s report. It is likely that the Committee would append this report to its own. The report will be published in hard and electronic formats. Affected parties will be notified when the report is to be published.

Possible amendments to the Bill affecting third parties

5.59 Prior to the end of Phase One, a proposal may be made to amend the Bill in such a way that might adversely affect the interests of new prospective objectors (that is, persons whose interests are not affected by the Bill as introduced, and so would not have been able to object to it, but who would be able to object to the Bill if it was amended as proposed), or that might adversely affect the interests of existing objectors in new ways (for example, giving them new grounds of objection). Such a proposal could either originate with the Committee or with the promoter, and might be based on arguments made by objectors or on other considerations.

5.60 If the proposal originates with the Committee then the promoter will be expected to respond to this proposal, indicating whether it is willing to put in place the arrangements necessary for a new objection process to take place.

5.61 Should the promoter indicate unwillingness to accept the Committee’s proposal, the Committee may recommend to the Parliament that the Bill not be passed at Final Stage. However, the final decision as to whether the Bill be passed is a matter for the whole Parliament.

5.62 It is important to note that, where the Committee agrees to consider such a proposal, it is not stating that it definitely wishes the Bill to be amended in line with the proposal (even if the proposal originates with the Committee rather than the promoter), merely that it considers there to be merit in further exploring the detail of the Bill. It would be inappropriate for the Committee to decide whether to amend the Bill before it had given those who might be adversely affected by the amendment an equivalent opportunity to object to it (as was given prior to introduction of the Bill to those who might be adversely affected by the Bill itself). It may be that objections will be lodged (and subsequent evidence presented) to the amendment that are more persuasive than the arguments in favour of the amendment. The point being that the Committee needs to be aware of the considerations on both sides before it can decide.

5.63 It will be for the Committee to agree with the promoter what material will be needed to inform prospective objectors of what the proposed amendment would involve. This may involve the preparation of draft amendments to the Bill and drafts of revised or supplementary accompanying documents (that is, drafts of how the accompanying documents to the Bill would need to be revised or supplemented if the amendments were agreed to).

5.64 The process of notification and advertisement should be equivalent to the original process undertaken before introduction of the Bill, to ensure that new prospective objectors have the same rights as the original prospective objectors. The new objection period should also normally be 60 days. However, in circumstances where the Committee is satisfied that potential new objectors will not be hindered in the exercise of their right to object then it may specify an objection period of less than 60 days.

5.65 Following the end of the objection period, the Committee will give preliminary consideration to any objections lodged as well as considering the draft revised or supplementary accompanying documents on the same basis as was the case at Preliminary Stage.

5.66 Following preliminary consideration, if the Committee is content that any objections are made on a reasonable basis, then the Committee will consider the detail of these objections on the same basis as any other objections at Consideration Stage.

Consideration Stage –

Phase 2 (Amendments)

Consideration Stage amendments

5.67 Once the first phase of Consideration Stage – the hearing of evidence – has been completed, there must be an interval of at least five sitting days before the Private Bill Committee begins phase 2 – formal proceedings on amendments (Rule 9A.9.7). Between the conclusion of the evidence taking and deadline for lodging amendments (Rule 9A.12.2), members of the Committee may lodge amendments to the Bill. The Committee will encourage the promoter to prepare amendments to give effect to any recommendations contained in its Consideration Stage Report. The clerks can distribute these for members of the Committee to lodge and subsequently consider during phase 2.

5.68 Amendments are lodged with the clerks and, if admissible, printed in the Business Bulletin. Before the first meeting of the Committee at which amendments are considered, the clerks will prepare a Marshalled List (a document showing all the admissible amendments lodged and not so far disposed of, in the order in which they will be considered) of amendments. The convener may group amendments for debate. If proceedings on amendments take place over more than one meeting, a separate Marshalled List and groupings will be prepared for each day.

Order of consideration

5.69 Under Rule 9A.9.6, the Private Bill Committee may decide the order in which the sections and schedules of the Bill are to be taken. It need only make a formal decision about the order of consideration if it wishes to depart from the default order prescribed by the Rule, which is to take the sections in the order they appear in the Bill and each schedule immediately after the section that introduces it. If the Committee proposes to depart from that order, the clerks will inform the promoter (and the promoter may wish to propose, via the clerks, an appropriate order to the Committee).

5.70 Where the order of consideration is to be decided, this should, if at all possible, be done before the first meeting at which the Committee considers amendments (i.e. at the last Consideration Stage meeting at which evidence is taken), so that the Marshalled List can be prepared to reflect the agreed order. However, the clerks should first ensure that the convener is content with the order proposed and then circulate a note explaining the proposal to the Committee, inviting any member who might object to do so in advance. This should ensure that the order can be agreed to formally and that the Committee can immediately begin to consider amendments in that order.

Recording decisions on amendments

5.71 It is not expected that the Private Bill Committee will normally prepare any report to the Parliament at this stage of the process. However, it is open to the Committee to prepare a report explaining why particular amendments were made or drawing the Parliament’s attention to provisions of the Bill where, although it could not agree on any particular amendments, it agrees that some amendment is required.

The Bill as amended

5.72 If any amendment (however small) is agreed to, the Bill must be re-printed in amended form (Rule 9A.9.10). If substantial amendments are made (particularly the insertion of new sections or schedules) the promoter will be expected to provide revised or supplementary Explanatory Notes. The re-printing of a Bill is recorded in the Business Bulletin.

Final Stage

5.73 Final Stage takes place at a meeting of the Parliament (Rule 9A.10.1). If the Bill has been amended at Consideration Stage, there must be nine sitting days between the last day at that Stage and the day on which Final Stage takes place (or begins) (Rule 9A.7.3A). If the Bill has not been amended, the gap is four sitting days.

Amendments at Final Stage

5.74 Amendments for Final Stage may be lodged as soon as the Consideration Stage is completed (Rule 9A.10.3). Where the Bill was amended at Consideration Stage, Final Stage amendments must relate to the “As Amended” print of the Bill. Where amendments are submitted before that print is ready, the clerks will accept them only on a provisional basis and print them when the page and line references have been checked against the printed version of the amended Bill.

Order of consideration

5.75 Rule 9A.10.5 requires amendments at Final Stage to be taken by reference to the order in which the sections and schedules arise in the Bill, unless the Parliament agrees to a Parliamentary Bureau motion to the contrary. If the promoter takes the view that Final Stage consideration should follow any order other than that laid down by the Rule, it may suggest that order to the clerks. If there is to be a Parliamentary Bureau motion, it should, if possible, be lodged in sufficient time to allow the motion to be taken by the Parliament the week before Final Stage.

Selection of amendments

5.76 All amendments that are admissible under Rule 9A.12.5 will be printed in the Business Bulletin; but if the Presiding Officer decides under Rule 9A.10.4 not to select all of the amendments, not all of the admissible amendments lodged will appear in the Final Stage Marshalled List. The clerks prepare a draft Marshalled List containing all the amendments lodged and put this to the Presiding Officer two days before the Final Stage is to be taken, together with a covering note recommending which amendments are selected (see Part 7 for how these recommendations are arrived at). The final Marshalled List is then prepared and sent for printing.

Proceedings on amendments

5.77 Final Stage proceedings on amendments are similar to those at Consideration Stage, except that all MSPs may vote.

Adjournment to a later day

5.78 After all amendments have been disposed of, the convener of the Committee may move, after the last amendment is disposed of, “That remaining Final Stage proceedings on the [short title] Bill be adjourned to [date]/a later day” (the motion may, but need not, name a day). This motion may be moved without notice and cannot be amended or debated, and under Rule 11.3.1, the question is put on it straight away. If the motion is agreed to, no further proceedings take place on the Bill until the day named in the motion (or until the Bureau has appointed a “later day”). In the interim, the convener of the Committee may lodge further amendments, but only for the purpose of “clarifying uncertainties” or “giving effect to commitments given on behalf of the promoter at the earlier proceedings at Final Stage” (Rule 9A.10.5).

5.79 These categories of permissible additional amendments correspond to the two possible reasons the Convener may have for moving to adjourn to a later day. The first reason is to give the promoter an opportunity to consider the implications of any significant Final Stage amendments that have been agreed to. Changes made to the Bill by an amendment on which the promoter has not been consulted may require some correction, and further changes elsewhere in the Bill may also be necessary before the Bill is, once again, fit to be enacted.

5.80 A second reason for moving to adjourn Final Stage proceedings is to allow commitments given on behalf of the promoter to be met. A promoter who wishes to make such commitments should write to the Convener of the Private Bill Committee (via the clerks). The Convener, in making the commitment during the Final Stage proceedings, should clearly indicate that he or she is speaking on behalf of the promoter. If the Final Stage proceedings are then adjourned, amendments will only be accepted as being to give effect to commitments given if they are consistent with what the Convener is recorded as saying on the promoter’s behalf.

5.81 Amendments lodged in either of the above categories for the resumed Final Stage proceedings will normally be printed in the Convener’s name followed by “(on behalf of the promoter)”.

Re-commitment

5.82 It may be that adjourning Final Stage consideration is not sufficient to resolve outstanding difficulties with the Bill. It may become apparent, in other words, that although there is still general support for the Bill, the limited scope for further Final Stage amendments does not allow the necessary changes to be made. In that case, the convener in charge may move “That the [short title] Bill be re-committed for further Consideration Stage consideration in respect of [specified sections and/or schedules]”, under Rule 9A.10.6.

5.83 If such a motion is agreed to, the Bureau will refer the Bill (or the provisions mentioned in the motion) back to the Private Bill Committee. Proceedings on re-commitment follow the same rules as for the original Consideration Stage.

5.84 If the Bill is amended during the further Consideration Stage proceedings, it is reprinted as amended and four sitting days must elapse between the day those proceedings end and the day on which Final Stage resumes. If the Bill is not amended, there is no such minimum interval before the Final Stage proceedings may resume (Rule 9A.7.3B). In either case, Final Stage amendments may again be lodged, but only to those sections and schedules specified in the motion to re-commit or to other parts of the Bill (including the long title) if they are necessary in consequence of amendments made on re-commitment.

Debate and vote on whether the Bill be passed

5.85 After proceedings on amendments at the Final Stage are concluded (including any adjourned proceedings under Rule 9A.10.5, and any further Final Stage proceedings after re-commitment), the Parliament must decide whether to pass the Bill. The convener of the Committee moves “that the [short title] Bill be passed” (the motion having been lodged in advance of Final Stage), and a general debate on the Bill may take place.

5.86 Note that the convener will always lodge and move a motion in these terms, even if the Committee recommended at the Preliminary Stage that the Parliament should not agree to the general principles of the Bill or that the Bill should not proceed as a Private Bill. Because the Committee’s role is, in practice, over by this point in the process, the convener is no longer required to represent its views. Instead, for the purposes of the Final Stage debate, the convener’s role is to ensure that a decision is taken either to pass the Bill or not. In moving the motion, therefore, the convener is not acting on the promoter’s behalf and so is not expected, in his or her speech, to advocate or defend the Bill as a whole. Nor is there any expectation that the convener will vote in favour of the motion, despite having moved it.

5.87 If there is a division on the motion to pass the Bill, the result is only valid if at least a quarter of MSPs vote (Rule 9A.10.8). If the majority votes against the Bill, or the result is invalid, the Bill is rejected.

Crown Consent

5.88 If provisions of the Bill would affect the prerogative or interests of the Crown and Crown Consent has not been signified at Preliminary Stage (or if relevant provision has since been inserted by amendment), it is signified during the Final Stage debate by a member of the Scottish Government.

“As Passed” print

5.89 If a Bill that is passed was amended at Final Stage, it is re-printed to show the Final Stage amendments. If it was not amended at Final Stage, the previous print of the Bill serves the purpose of showing the Bill in the form in which it was passed.

Reconsideration Stage

Legal challenges to a Bill once passed

5.90 Section 32 of the Scotland Act 1998 provides that a Bill, once passed, may be submitted for Royal Assent by the Presiding Officer only after the expiry of a four-week period during which the Bill is subject to legal challenge by the Advocate General for Scotland, the Lord Advocate or the Attorney General under section 33, or by the Secretary of State under section 35. The Presiding Officer may, however, submit the Bill for Royal Assent after less than four weeks if all three Law Officers (under section 33(3)) and the Secretary of State (under section 35(4)) notify him that they do not intend to exercise their powers to challenge the Bill.

5.91 A challenge from the Secretary of State takes the form of an order specifying the provisions of the Bill objected to and the reasons that prohibit the Presiding Officer from submitting the Bill for Royal Assent. A challenge from one of the Law Officers takes the form of a reference to the Judicial Committee of the Privy Council (JCPC).9 Once such a reference has been made, the Presiding Officer cannot make further progress towards Royal Assent until the JCPC has either decided (or otherwise disposed of) the reference, or has referred a question arising from it to the European Court of Justice (ECJ).

Motions to reconsider the Bill

5.92 Where the JCPC refers to the ECJ a question arising from the case brought by the Law Officer, proceedings on that case are put on hold pending the ECJ judgement. Since the ECJ can often take two years or more to decide a question referred to it, section 34 of the Scotland Act allows the Parliament to have a reference to the JCPC withdrawn if the JCPC has in turn made a reference to the ECJ. For a Private Bill, this is effected by a motion under Rule 9A.11.1, “That the Parliament resolves that it wishes to reconsider the [short title] Bill”. Any member may move such a motion, but only if neither the reference to the JCPC nor the JCPC’s reference to the ECJ has been decided or otherwise disposed of. If the motion is agreed to, the Presiding Officer informs the Law Officers and the one who made the original challenge must then (under section 34(2)) request withdrawal of the reference to the JCPC. Reconsideration Stage may not take place until the withdrawal of the JCPC reference has been formally confirmed.

5.93 If there is no ECJ reference, nothing further can be done in the Parliament until the JCPC has decided (or otherwise disposed of) the Law Officer’s reference. If the JCPC decides that the Bill (or part of it) would be outwith legislative competence, or if a section 35 order (see paragraph 5.90) is made, any member may move “That the Parliament resolves to reconsider the [short title] Bill”. If such a motion is agreed to, the Bureau allocates a time for Reconsideration Stage on the Bill at a meeting of the Parliament (Rule 9A.11.3).

Amendments at Reconsideration Stage

5.94 The purpose of Reconsideration Stage is to allow those provisions of the Bill subject to legal challenge to be amended so that the basis of the challenge is removed. Rule 9A.11.4 therefore provides that only amendments aimed at resolving the issue on which the Bill was challenged are admissible. The judgement of the JCPC, the question that was referred to the ECJ or the section 35 order will be used by the clerks as a guide to the admissibility of amendments at Reconsideration Stage. Amendments are worded by reference to the “As Passed” version of the Bill. As at Final Stage, amendments are disposed of in the order in which they relate to the Bill, unless the Parliament decides, on a Bureau motion, to follow a different order (Rule 9A.11.4). There is no selection of amendments at Reconsideration Stage, so all admissible amendments lodged must be taken.

Proceedings at Reconsideration Stage

5.95 The above differences aside, proceedings at Reconsideration Stage are similar to those at Final Stage. Once the amendments have been disposed of, the Bill may be further debated before the Parliament decides whether to approve the Bill. If there is a division, only a simple majority is required (the 25% quota required for the Bill to be passed does not apply).

5.96 A Bill approved after reconsideration is again subject to legal challenge by the Law Officers or the Secretary of State in exactly the same way as it was after it was first passed. There is no limit to the number of times the Parliament may approve a Bill, or those persons may challenge it.

Crown Consent

5.97 If the Bill has been amended on reconsideration to include provisions that would affect the prerogative or interests of the Crown, Crown Consent for those provisions is signified during debate on whether to approve the Bill.

Financial resolution

5.98 Where a Bill contains particular provisions affecting payments into or out of the Scottish Consolidated Fund, it cannot proceed beyond Preliminary Stage unless the Parliament has, by resolution, agreed to the relevant provisions. That resolution is known as a "financial resolution" and the rules governing such resolutions are set out in Rule 9A.14.

Carryover of Private Bill

5.99 As with Public Bills, a Private Bill introduced in any session of the Parliament falls if it has not been passed by the Parliament before the end of that session (Rule 9A.7.5).10 However, unlike Public Bills, Private Bills that fall in these circumstances may be “carried over” to the following session.

5.100 Under Rule 9A.7.6, where a Bill falls at the end of one session, the promoter may introduce a Bill in the same terms in the next session of the Parliament. If the original Bill had already completed Consideration Stage and had been reprinted as amended, the new Bill that is introduced in the second session will be in the same terms as that reprinted Bill. The promoter is not required to provide any accompanying documents under Rule 9A.2.3 when the new Bill is introduced, as the accompanying documents used for the Bill in the first session will be used for the Bill in the second session. However, a fresh statement by the Presiding Officer is required in respect of the new Bill. It may not therefore be possible to introduce the new Bill until some time after the beginning of the new session, to allow time for the new Parliament to elect a Presiding Officer (which, under Rule 3.2.1, must take place at the first meeting after the election) and for a fresh statement to be prepared. The new Bill must, however, be introduced no later than 30 days after the new Parliament first meets (Rule 9A.7.9).

5.101 Any objections to the original Bill lodged during the earlier session are treated as objections in the later session to the new Bill, and any decision by the earlier Private Bill Committee to reject certain objections at the Preliminary Stage shall apply in relation to the new Bill (Rule 9A.7.8).

5.102 If, on the day the Parliament is dissolved, the original Bill had not completed a particular Stage, then proceedings on the new Bill must normally commence at the beginning of that Stage. However, the new Bill may commence at a later point in that Stage (up to the point that the original Bill had reached) with the agreement of the promoter, those objectors the original Committee invited to give evidence and any other witness from whom that Committee decided to take evidence. This may be useful to avoid the repetition of evidence taken during the earlier session. However, the Committee established in the new session may prefer to begin evidence-taking again if its membership is substantially different from that of the original Committee or if the amount of evidence to be re-heard is not substantial.

5.103 It should be noted, however, that this Rule does not permit the new Bill to commence its progress at any point during that part of either Consideration Stage or Final Stage which involves proceedings on amendments. This is because Consideration Stage amendments that had been lodged to the original Bill are not carried over to the new session. What is more, decisions taken by the Committee (or the Parliament) to agree to amendments during a Stage not completed during the earlier session have no effect after the dissolution. As a result, it is necessary for the new Bill to begin the relevant proceedings on amendments afresh in the new session to allow the same or similar amendments to be made to the new Bill.

Withdrawal of Private Bill

5.104 Rule 9A.15 allows a Private Bill to be withdrawn at any time by the promoter. The consent of the Committee or the Parliament as a whole is not required. A Bill is withdrawn by the promoter writing to the clerks, who will notify the Committee and include notice of the withdrawal in Section G of the Business Bulletin. The fee for lodging the Bill is not refunded on withdrawal, and any outstanding costs must still be paid by the promoter.

5.105 Where a Bill is withdrawn another Bill in the same or similar terms may not be introduced by the same promoter within a period of six months from the date on which the original Bill was withdrawn (Rule 9A.15).

Change of promoter

5.106 The identity or status of a promoter may change during the passage of a Bill as a result, for example, of the death of an individual, the merger or bankruptcy of a company, or a legislative change affecting the identity of a statutory body. In many cases, the general rights and liabilities of the promoter will transfer to its successor by operation of law.

5.107 Rule 9A.11A applies where the promoter who introduced the Bill is no longer able, or no longer wishes, to obtain the powers or benefits that it is the purpose of the Bill to confer, but where there is another person or body who can (and wishes to) become the beneficiary of those powers or benefits.

5.108 As the range of possible circumstances is so open-ended, it is difficult to anticipate what impact a change of promoter may have on objectors and the need to ensure proper scrutiny of the Bill and it is therefore for the Private Bill Committee to assess the circumstances. If the Committee is satisfied that a change of promoter would not compromise the proper scrutiny of the Bill, or the rights and interests of the objectors, it can allow the Bill to proceed (although it may require the promoter to provide additional accompanying documents, or give additional undertakings, and it may require Preliminary or Consideration Stage to begin again).

5.109 If, the Committee is not satisfied, it may report to the Parliament that the Bill should not proceed with the new promoter. In that event, proceedings on the Bill would be suspended until the Parliament had considered and decided on that recommendation (on the grounds that no Bill should ever be rejected other than by the Parliament as a whole). If the recommendation was accepted, the Bill would fall (and it would then be open to the new promoter to introduce the same or a similar Bill in order to begin the process again (but see 6 month rule in Rule 9A.7.4)). If the Committee’s recommendation to the Parliament was not accepted, however, the Committee would be required to continue with its consideration of the Bill.

Royal Assent and after

From Bill to Act

5.110 If a Private Bill that has been passed (or approved after Reconsideration) has not been subject to legal challenge (or further legal challenge) within the statutory 4-week period, or if the Secretary of State and all three Law Officers have confirmed that they will not challenge the Bill, the Presiding Officer may present the Bill for Royal Assent.

Royal Assent version of the Bill

5.111 To prepare for this, the clerks produce a “Royal Assent version” of the Bill. This is the same as the previous, printed version but with all numbering corrected and any necessary “printing points” taken in. Printing points are non-substantial corrections (i.e. corrections that do not affect the legal effect of the Bill). For example, changes may be made to section and schedule titles to ensure they continue accurately to describe the relevant sections and schedules. Numbering (including in cross-references) and punctuation are also corrected in consequence of amendments made. The promoter may ask for printing points to be made, but these will be refused by the clerks if they involve substantive changes that should have been made by amendment at an earlier stage.

5.112 As soon as there is no further possibility of legal challenge to the Bill, the Royal Assent version is taken to the Presiding Officer’s office. From there, it is sent together with draft Letters Patent to the Queen for Royal Assent.

Preparation of the Official Print

5.113 As soon as the Royal Assent version has been sent to the Palace, an “Official Print” version of the Act is prepared. The text is identical to the final text of the Bill, but the presentation is altered to that of an Act. In particular, an enactment formula is added, reading “The Bill for this Act of the Scottish Parliament was passed/approved by the Parliament on [date] and given Royal Assent on” [with a space for the date of Royal Assent]. The line numbers and backsheet are removed and a cover page showing the short title of the Act and the “asp number” is prepared.

5.114 The Official Print is printed on archive-quality paper, prepared according to a specification agreed with the National Archives of Scotland (formerly the Scottish Record Office), and bound with blue ribbon.

After enactment

5.115 When the Keeper of the Registers of Scotland (who records the Letters Patent that signify Royal Assent, under section 38(1)(a) of the Scotland Act 1998) informs the Clerk of the Parliament that Royal Assent has taken place (under section 38(2)), the Clerk fills in the date of Royal Assent in longhand in the enactment formula on the Official Print (under section 28(4)). He also writes in the “asp number” (in the place occupied on the Bill by the “status entry”). This number is in the form “2005 asp 1” (for the first Act given Royal Assent in 2005).11 The Clerk then sends a photocopy of the Official Print to the Queen’s Printer for Scotland, who authorises the Act to be printed, and sends the original to the Keeper of the Records of Scotland for inclusion in the National Archives of Scotland.

5.116 The Act version (which is identical to the Official Print except with the date and asp number added) is prepared by the clerks and sent to The Stationery Office (TSO), who print it as soon as authorised to do so by the Queen’s Printer for Scotland. This “Queen’s Printer copy” is available to the public from TSO and its accredited agents and on the Office of Public Sector Information website. The text of the Act is also sent to the Statutory Publications Office for inclusion in the electronic Statute Law Database.

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Footnotes:

6 Procedures Committee's 1st Report, 2006 (Session 2) (SP Paper 481)

7 Personal data means data that affects the privacy of a living, identifiable individual who can be identified from the data. The mere mention of someone’s name is not necessarily personal data – there must be some biographical element that has the individual as its focus and affects their privacy. For example, a person’s name along with their home address is personal data.

8 Sensitive personal data is data which describes racial or ethnic origin, political opinions, religious beliefs or other beliefs of a similar nature, trade union membership, physical or mental health, sexual life, the commission or alleged commission of an offence, or proceedings carried out in relation to an offence.

9 The JCPC consists of Law Lords and other senior judges and is the final court of appeal in civil and criminal cases from certain Commonwealth countries and from domestic sources other than the courts, including the General Medical Council and the Church of England.

Note: The functions of the JCPC will be taken over by the Supreme Court of the United Kingdom under the Constitutional Reform Act 2005 from October 2009

10 Note that, in the Scottish Parliament, the term “session” refers to the period between the first meeting of the Parliament after a general election and the dissolution of the Parliament before the next election. The equivalent term in Westminster is a “Parliament”.

11 The numbering of ASPs is governed 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.)