Part 4: Private Bill Committees
Establishment and membership
Establishment of Committee
4.1 Following the introduction of a Private Bill, the Parliament must establish a Private Bill Committee to consider it. It is for the Parliamentary Bureau to propose the relevant motion (Rule 6.1.3). The motion normally specifies the new committee’s name (usually the Bill’s short title plus “Committee”), remit and duration, plus the party from which the Convener and Deputy Convener are to be chosen. The names of the Committee members may be included in the same or a separate Bureau motion.
Remit and duration
4.2 The remit of a Private Bill Committee is to consider and report to the Parliament on the Bill in question. What this involves is explained in detail in Part 5.
4.3 Private Bill Committees are normally established for the duration of the Bill – that is, until the Bill is passed or rejected, falls or is withdrawn. In practice, the Committee’s role will normally be at an end once Consideration Stage is completed.
4.4 Under Rule 9A.5.2, a Private Bill Committee must consist of three, four or five members.
4.5 There are various constraints on who can serve as a member of a Private Bill Committee. As with other committees of the Parliament, the Parliamentary 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. Although seats on committees are normally allocated in proportion to the strength of the parties (as measured by their number of MSPs), this is less important in the context of a Private Bill, which is unlikely to raise issues of a party-political nature. In any case, the small size of Private Bill Committees usually makes proportionality across all the parties impossible.
4.6 In addition to these general constraints on membership, the quasi-judicial role that Private Bill Committees are expected to perform makes it important that their members are, and are seen to be, neutral and impartial. Accordingly, under Rule 9A.5.3, the following may not be appointed to a Private Bill Committee—
· an MSP whose principal place of residence is within the area of any works that the Bill would authorise
· an MSP who owns (or has any other right or interest in) any land or buildings that would be subject to compulsory acquisition or use under the Bill
· an MSP whose constituency or region includes any part of the area of any works that the Bill would authorise
· an MSP whose constituency or region would, in the opinion of the Parliamentary Bureau, be particularly affected by any such works
· an MSP who has a financial interest that, in the opinion of the Parliamentary Bureau, directly relates to the promoter or the subject matter of the Bill
· an MSP who has any other interest registered in the Register of Interests of Members of the Scottish Parliament that the Parliamentary Bureau considers would, or would be likely to, prejudice the MSP’s ability to participate in the Committee’s proceedings in an impartial manner.
4.7 The function of the Register of Interests is to provide information about certain financial interests of members, namely those which “might be thought to influence a member’s actions, speeches or votes in the Parliament”. In most contexts, the existence of a financial interest requires to be registered and declared in relevant contexts, but does not prevent the member from participating in the proceedings of the Parliament.
4.8 In relation to a Private Bill Committee, however, the test is simply whether the member has 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 are below the normal threshold for registration. Accordingly, to ensure that the Bureau is in a position to judge eligibility for membership of a Private Bill Committee, any MSP who has been nominated must bring to the attention of the Bureau any unregistered financial interest they have in relation to the promoter or the subject-matter of the Bill (Rule 9A.5.4).
4.9 In addition, the rules exclude from membership of the Private Bill Committee 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 To further demonstrate the importance attached to the impartiality of members, a declaration of impartiality must be made at the first meeting they attend (see paragraph 4.21 below).
Changes of membership
4.11 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.
Attendance at meetings
4.12 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).
4.13 Partly because of the small size of Private Bill Committees and partly because of the special nature of their proceedings, members are expected to attend all meetings of the Committee, and may be absent from a meeting only in exceptional circumstances (Rule 9A.5.5).
4.14 Unlike the position for most other committees, substitute members cannot be appointed to a Private Bill Committee (Rule 6.3A.3). The Rules on “Bill substitutes” (Rule 6.3B) also do not apply in the context of a Private Bill Committee.
4.15 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 either—
· he or she was present on each occasion when the Committee took oral evidence directly relevant to that objection, or
· he or she instead views a recording of the relevant proceedings or reads the Official Report.
4.16 Normally, the second option (viewing a recording or reading the Official Report) is available only if each person who gave oral evidence in the absence of the member, and the promoter, agrees (Rule 9A.5.6). So if one of the parties (objector or promoter) withholds agreement, the member who was absent is barred from participating in consideration of the objection.
4.17 However, if the net effect is that fewer than half of the committee members would remain eligible to participate in consideration of an objection, the committee must invite all those who were previously invited to give evidence to give their evidence again (Rule 9A.5.6A). If the party who withheld agreement accepts this invitation, the members who would otherwise have been ineligible to participate in consideration of objections become eligible (by having now heard the evidence in person). And if the party does not take up the invitation, their agreement is no longer required – thus allowing the otherwise-ineligible members to become eligible (by viewing a recording or reading the Official Report of that party’s original evidence).
4.18 In view of these constraints, it is particularly important that members of Private Bill Committees notify the clerks as far ahead as possible of any circumstances that might prevent them attending all or part of a scheduled meeting, so that consideration can be given to changing the times of the meeting or re-scheduling it altogether. If such circumstances arise during a meeting, it may be necessary for the meeting to be adjourned for a time, or closed early. Because of the inconvenience this may cause to non-MSPs involved in the proceedings, members should make every effort to ensure that such circumstances do not arise.
Declarations of interest and impartiality
4.19 All members of committees are expected to declare any interests they have that are relevant to the remit of the committee, at the first meeting they attend.
4.20 In addition, each member of a Private Bill Committee must, at the first meeting he or she attends, make the following declaration (under Rule 9A.5.4A):
“I declare that I will act impartially, in my capacity as a member of the [name] Committee, and will base my decisions solely on the evidence and information provided to the Committee.”
Choice of Convener
4.21 Like other committees, a Private Bill Committee must choose a Convener at its first meeting. In practice, this is normally a formality, as the Parliament will already have decided that only members of a particular political party are eligible to be the Convener (in the motion establishing the Committee), and there is likely to be only one member of the Committee from that party.
4.22 Until the Convener is chosen, the meeting is chaired by the oldest Committee member present (Rule 12.1.6 and 12.1.19).
Role of Convener and Deputy Convener
4.23 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.
4.24 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.
4.25 If the Parliament decides, when it establishes the Committee or subsequently, that the Committee should have a deputy convener, the Committee must choose one of its members to occupy that position. As with the convener, the Parliament chooses the political party, and the Committee’s choice is therefore usually a formality. The main role of the deputy convener is to chair meetings of the Committee in the absence of the convener. He or she is also likely to share with the Convener responsibility for speaking on behalf of the Committee in Chamber debates on the Bill.
Sub-committees and reporters
4.26 Like other committees of the Parliament, Private Bill Committees can establish sub-committees (with the agreement of the Parliament on a motion of the Parliamentary Bureau), or appoint members as reporters (Rules 12.5 and 12.6). However, given the presumption in favour of all evidence being heard by all Committee members, Private Bill Committees generally do not use these powers.
4.27 In the case of a Private Bill to which objections have been lodged, the Private Bill Committee can decide (at Preliminary Stage) to direct the Parliamentary corporation (the SPCB) to appoint an assessor to undertake some of the detailed work on the Bill at Consideration Stage (assuming the Bill proceeds that far).
4.28 The facility to appoint an assessor was introduced in 2006 following a period when a number of “works” Private Bills, seeking authorisation for major transport infrastructure projects, had been introduced. The aim was to bring professional expertise into the process of considering the detail of such Bills, and so to reduce the burden on MSPs and Parliamentary resources more generally. This was, however, seen only as a stop-gap solution, pending the creation of a new, non-parliamentary system. Following the enactment of the Transport and Works (Scotland) Act 2007, developers can seek authorisation for major infrastructure projects without introducing a Private Bill, and the assessor mechanism has been largely superseded for “works” Bills. However, similar considerations apply to non-works Bills which attract large numbers of objections. Accordingly, in 2021, the Rules were changed to allow an assessor to be appointed for any Private Bill (whether or not it is a “works” Bill) to which objections have been lodged.
4.29 The main role of an assessor is to consider the evidence given by the promoter and objectors at Consideration Stage, and to report to the Committee with recommendations. The assessor may also be asked to carry out an initial assessment of the objections and recommend to the Committee how they should be grouped, which objectors should be chosen as lead objectors, and whether the evidence invited should be oral, written or both (Rule 9A.8.2A).
4.30 Where an assessor is appointed and the Committee agrees (whether or not on the assessor’s recommendation) that the evidence invited should include oral evidence, it is for the assessor to conduct the oral evidence hearings as he or she sees fit. While these are not proceedings of the Committee, they are in practice conducted in a similar way, including with the parties leading their own evidence and cross-examining each other’s evidence. The Committee clerks may assist the assessor in preparing for these meetings, much as they would do with Committee meetings. A transcript of any oral proceedings held in public (similar in style to the Official Report of a Committee meeting) is prepared and published.
4.31 Following the completion of assessor hearings, the assessor prepares a report, with recommendations, and provides it to the Committee. It is then for the Committee to reach decisions, based on the assessor’s report, just as it would do if it had taken that evidence itself. (See also Part 5.)
Clerks, advisers and other staff
Clerks to the Committee
4.32 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.
4.33 The clerks do not normally speak during public committee meetings but may do so, on the invitation of the convener, in relation to a factual or procedural query. A committee may not meet without a clerk present.
Parliament legal advisers
4.34 A committee may have in attendance one or more of the Parliament’s legal advisers, whose general role is to provide the members and clerks with legal advice.
Official reporters and broadcasters
4.35 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.
4.36 Members of the Parliament’s security staff are present during all public committee meetings. Their role is to assist with public access, maintain order and pass messages to and from members and others.
4.37 Like other committees, Private Bill Committees may seek to appoint advisers to assist them in their work. Advisers are only likely to be appointed if the Bill raises complex or specialised issues and where relevant expertise is not available from within the Parliament. Advisers provide informed, impartial advice to the Convener and other members, and to the clerks. They usually attend meetings, and may contribute to the proceedings, although they do not participate directly in evidence-taking.
Time and place of meetings
4.38 Like all committees, Private Bill Committees normally meet in the morning, on Tuesdays, Wednesdays or Thursdays, although they can occasionally meet at other times or on other days. Private Bill Committees have more latitude than most other committees to meet, or continue to meet, while a meeting of the Parliament is in progress (Rules 9A.5.4B and 4C). In practice, it is for the Committee as a whole to decide how often it needs to meet to carry out the work required of it, and it is for the Convener to make final decisions about the dates and times of meetings. These will be advertised in advance on the Committee’s web-page and in the Parliament’s Business Bulletin.
4.39 Committees may, subject to the approval of the Parliamentary Bureau and Conveners Group, meet anywhere in Scotland (Rule 12.3.2). Depending on the subject-matter, a Private Bill Committee may sometimes meet in or near the area affected by the Bill. Assessor hearings may also sometimes be held in the local area.
4.40 In addition, Committee members (or an assessor) may wish to undertake visits to relevant sites, in order to inform themselves about the context for the Bill and its likely impact. Where such a visit is hosted by the promoter, objectors may be given the opportunity to observe.
Public and private meetings
4.41 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). 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 take certain agenda items in private where these do not relate directly to the consideration of the Bill. This may include, for example, agreeing their approach to a particular Stage of the process, preliminary consideration of objections, a decision on whether to appoint an adviser or an assessor, or consideration of a draft report.
4.42 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.
4.43 Committee proceedings held in private are not reported in the Official Report (unless the Parliament has decided otherwise), and are not broadcast (Rule 16.5.2). However, the outcome of any decisions taken in private are recorded in the minutes of the Committee meeting, which are published on the Committee’s web-pages.
4.44 Assessor hearings are normally conducted in public, but an assessor may occasionally agree to take certain evidence in private for the same sorts of reasons that a Committee might have for meeting in private (e.g. if the evidence is commercially sensitive).
4.45 In advance of each committee meeting, an agenda is circulated to members and published in the Business Bulletin and on the committee’s web-page. For some items, committee papers may also be circulated (e.g. notes by the clerk or written evidence received). Where an agenda item is to be taken in private, the papers (e.g. a draft report) may also be private. Public papers are published with the agenda on the committee’s web-page. After each meeting, minutes are published on the same web-page, alongside the Official Report.
Attendance by non-Committee members
4.46 Any MSP who is not a member of a committee may attend any public meeting it holds (Rule 12.2.2). However, this is more restricted in the context of Private Bill Committees, where non-Committee members are not entitled to participate in the proceedings (Rules 9A.8.7 and 9A.9.9). In this context, “participation in the proceedings” includes questioning of witnesses and discussion of the Bill, as well as moving amendments and voting.
Conduct during meetings
4.47 As in other committees, the convener chairs meetings of the Private Bill 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.
4.48 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 or other person present 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).
4.49 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.
4.50 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 7.3.1 and 2 and 7.8).
Matters sub judice
4.51 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. While this Rule does not “prevent the Parliament from considering legislation”, members should avoid making reference to matters that are sub judice even during proceedings on a Private Bill 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.
4.52 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.
 The Register entry for each current MSP is available online from the Parliament’s website, under MSPs, by selecting the MSP’s name, then selecting “Register of Interests”.
 Code of Conduct for MSPs, Section 1, paragraph 3, accessible on the Parliament’s website, under MSPs.
 This does not apply in a situation where the committee is considering an objection on the basis of a report by an assessor, where the evidence was given to the assessor and not to the committee.
 Guidance on the Code of Conduct for Members of the Scottish Parliament, Section 3, paragraph 6.
 Each committee has a dedicated web-page which can be found on the Parliament’s website, under Chamber and committees / Current and previous committees.