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Preface

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BILL HANDBOOK

A GUIDE to BILL PROCEDURE for SCOTTISH PARLIAMENT BILLS

PREFACE The purpose of this Handbook is to provide guidance on the procedures that the Scottish Government follows in putting Government Bills through the Scottish Parliament and in dealing with other types of Bills in the Parliament. This handbook will be revised from time to time in the light of experience in the preparation and passage of legislation and will take account of changes to the Standing Orders of the Scottish Parliament. It has been revised to take account of the provisions of the Freedom of Information (Scotland) Act 2002 (the “FOISA”) and the Environmental Information (Scotland) Regulations 2004 (the “EIRs”). Any additions or improvements which Bill Teams or others wish to suggest should be sent by e-mail (citing the version number on the previous page and the paragraph number, if appropriate), to: Legislation and Parliamentary Liaison Team Area:GA North Ext 45169/42365 A full list of useful contact names, addresses and telephone numbers is provided at Annex 10. Scottish Government Legislation and Parliamentary Liaison Team March 2011

Contents

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CONTENTS Chapter 1 INTRODUCTION How to use the Guide 1.1 Freedom of Information (Scotland ) Act 2002 1.3 Environmental Information (Scotland ) Regulations 2004 1.4 Subordinate Legislation 1.6 Chapter 2 AT-A-GLANCE CHECKLIST FOR BILL TEAMS Chapter 3 PROJECT START-UP Introduction 3.1 WHO - Those involved The Bill Team 3.3 SGLD 3.12 Office of the Scottish Parliamentary Counsel 3.14 Legislation and Parliamentary Liaison Team 3.19 Minister for Parliamentary Business and the Business Bureau 3.20 Ministers and Private Offices 3.22 Policy Divisions 3.26 Press Office 3.29 Committee Liaison Officers 3.33 WHEN - Timetable for Bills Timetable for Bill 3.34 Policy Instructions 3.37 Drafting Instructions 3.38 Timing 3.39 Chapter 4 PREPARATION OF A BILL Legislative Programme 4.1 Ministers and Collective Responsibility Cabinet Sub-Committee on Legislation (CSCL) 4.3 Approval of Proposals by Cabinet 4.7 Policy Proofing Involvement of UK Government Departments 4.9 Notifying Freedom of Information Unit 4.10 Scotland Act Orders 4.11 Equal Opportunities 4.15 Business and Regulatory Impact Assessment 4.19 Offences, Penalties and Powers of Entry 4.22 Civil Jurisdiction and Procedures and Tribunals 4.23 Public Bodies 4.28 Civil Enforcement 4.33 Disqualification from Membership of UK Parliament and Devolved Administrations 4.34 Maladministration 4.40

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Stakeholders Consultation and Civil Participation 4.43 Bill Development Instructing and Drafting a Bill 4.62 Policy Instructions 4.63 Instructions to OSPC 4.71 Preparation of Drafts of a Bill 4.73 Legal Issues Gender Neutral Drafting 4.77 Use and Recognition of Electronic Signatures 4.79 Legislative Competence 4.81 EU Implications 4.88 International Obligations 4.89 Particular Aspect of Bills 4.91 Hybrid Bills 4.102 Commencement 4.103 Delegated Powers 4.113 Crown Application 4.121 Crown Consent - Government Bills 4.127 Accompanying Documents Accompanying Documents 4.138 Delegated Powers Memorandum to the Subordinate Legislation Committee 4.148 Chapter 5 PREPARATION FOR INTRODUCTION Bill Management Meetings 5.1 Ministerial Approval to Final Draft Bill and Introduction 5.11 3 Week Pre-Introduction Consideration (Submission to the Presiding Officer) 5.17 Submission of Drafts 5.26 Referral to the Scottish Law Officers 5.28 UK Government Departments and the UK Law Officers 5.32 Signing of Bill 5.38 Lodging Accompanying Documents 5.43 Printing/Availability of Accompanying Documents 5.45 Copying Bills to UK Government Departments 5.46 Reprinting of Acts etc Relevant to a Bill 5.50 Press and Public Relations 5.53 Use of the Official Report in Construing Statute (“Pepper v Hart”) 5.54 Chapter 6 PARLIAMENTARY STAGES OF A BILL

Introduction 6.1 Designation of Lead Committee 6.2 Contact with the Lead Committee before Formal Introduction 6.3 Parliamentary ‘Days’ 6.5 Access to the Parliament 6.5 Stage 1 6.9 Evidence Sessions 6.11 Scrutiny by Other Committees 6.15 Stage 1 Report 6.19 Stage 1 Debate 6.21

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Amendments to Stage 1 Motions 6.25 Financial Resolutions 6.29 Stage 2 6.35 Amendments 6.45 Wrecking Amendments 6.50 Legislative Competence of Amendments 6.51 Lodging Amendments 6.55 Order of Consideration 6.59 Grouping of Amendments and Order of Debate 6.60 Notes on Amendments 6.63 Purpose and Effect Notes 6.73 Summary of Bill Team Work at Stage 2 6.76 Preparation for Stage 3 6.77 Stage 3 6.83 Reconsideration Stage 6.96 Royal Assent 6.98 Proof Reading 6.104 Chapter 7 ACTION FOLLOWING ENACTMENT OF A BILL Powers of Intervention of a UK Government 7.1 Royal Assent 7.3 Printing of Acts of the Scottish Parliament 7.4 Explanatory Notes 7.5 Circulars 7.7 Forms 7.9 Commencement Orders 7.10 Chapter 8 MEMBERS BILLS, COMMITTEE BILLS, BUDGET BILLS,

EMERGENCY BILLS AND OTHER TYPES OF BILLS Members Bills 8.2 Lodging of Proposal/Introduction of Members Bills 8.3 Member Lodges Draft Bill Proposal 8.5 Member Lodges Final Bill Proposal 8.8 Allocation of Responsibility within the Executive 8.16 Government Memorandum 8.19 Parliamentary Consideration 8.22 Committee Consideration of Member’s Proposal where Member has not Prepared a Bill 8.24 Financial Resolutions for Members Bills 8.27 Crown Consent 8.31 Committee Bills 8.33 Budget Bills 8.39 Emergency Bills 8.40 Private Bills 8.44 Consolidation Bills 8.45 Statute Law Repeals and Statute Law Revisions Bills 8.52 Annex 1 BRIEFING AND FILING SYSTEMS Systems for Preparing Briefing Commissioning Briefing Receiving and Storing Briefing Filing

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Example of a Method of Compiling and Storing Briefing Annex 2 EXECUTIVE BILLS: MAIN STEPS Annex 3 STAGES IN THE PASSAGE OF A PUBLIC BILL Annex 4 REQUEST FOR AGREEMENT TO INTRODUCTION OF THE BILL

AND TO ITS INTRODUCTION DATE Annex 5 EXPLANATORY NOTES FOR BILLS AND ACTS Purpose of the Explanatory Notes Status Content of the Notes The Introduction Main Body of the Explanatory Notes Handling Explanatory Notes for Acts Annex 6 TIMETABLE FOR PREPARATION OF BILL Timetable for Preparation and Passage of a Bill – Key Milestones Timetable for Preparation and Passage of a Bill – Milestones Timetable for Preparation and Passage of a Bill – Guidance Notes Pre-Parliamentary Stages Parliamentary Stages Annex 7 CABINET SUB-COMMITTEE ON LEGISLATION – REMIT AND

WORKING ARRANGEMENTS Remit Guidance Notes on Working Arrangements

Annex 8 BILL MANAGEMNT MEETING GUIDANCE Annex 9 COUNCIL ON TRIBUNALS CONSULTATION CODE Introduction Subject Matter and Timing of Consultation Time Allowed for Consultation Scheduled Tribunals Process of Consultation Reporting the Results of Consultation

Annex 10 CONTACT LIST Scottish Government and UK Government Contacts Scottish Government Contacts UK Government Department Contacts Political Parties, Churches and Faith Groups in Scotland

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Political Parties Churches and Faith Organisations

Chapter 2: At-A-Glance Checklist For Bill Teams

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Chapter 1 INTRODUCTION How to use the Guide 1.1 The Scotland Act 1998 provides for the establishment of the Scottish Parliament. Sections 28 and 29 enable the Scottish Parliament to make laws for Scotland, to be known as Acts of the Scottish Parliament (ASPs), so long as no provision of the Act concerned is outside the legislative competence of the Parliament. Sections 29 and 30 and Schedules 4 and 5 define the Parliament’s legislative competence. 1.2 The Report on the Consultative Steering Group on the Scottish Parliament (the “CSG”), published in December 1998 made recommendations for parliamentary procedure including the passage of legislation. This formed the basis of the Parliament’s Standing Orders chapters 9 and 9A which relate to Bill procedures. The CSG Report provides useful background reading on the thinking behind the procedures that have been adopted, but it is the Scotland Act and the Standing Orders which are authoritative. References to “Rules” in this Handbook are to Rules in the Standing Orders. In some areas, the procedures set out in this Handbook stem from agreements between the UK Government and the Scottish Government set out in the Memorandum of Understanding between the UK Government and the Scottish Ministers, Concordats and the Guidance Note on Common Working Arrangements available in the Guidance section of the Scottish Government intranet. In others, the procedures reflect the provisions of the Freedom of Information (Scotland) Act and the Environmental Information (Scotland) Regulations. Freedom of Information (Scotland) Act 2002 1.3 The Freedom of Information (Scotland) Act 2002 (the “FOISA”) came into force on 1 January 2005 and establishes a legal right of access, by anyone, to recorded information of any age, subject to certain conditions and exemptions. Importantly in terms of this guidance, it also establishes a duty to proactively release as much information as possible under an authority’s Publication Scheme. Due consideration should therefore be given at all times to what information about the Bill can be proactively released and included in the scheme. The Environmental Information (Scotland) Regulations 2004 1.4 The new regulations for Scotland on public access to environmental information also came into force on 1 January 2005 and have been drafted to bring the regime closer to the FOISA regime. The Regulations also impose a duty on authorities to “actively disseminate” environmental information relevant to an authority’s functions. A full list of the types of information which is required to be published under this duty is included at section 4 of the Regulations but, for information, the lists includes information about legislation on the environment, environmental impact studies and risk assessments. The regulations can be viewed at:

http://www.opsi.gov.uk/legislation/scotland/ssi2004/20040520.htm

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1.5 This Handbook deals primarily with the procedures which Government Bills (including Budget and Emergency Bills) must follow. A summary of key milestones in the preparation and passage of a Government Bill is given at chapter 2. The Handbook also outlines general rules and the proper form of Bills applicable to all Bills, and Chapter 8 provides some guidance on other types of Bill including:

• Committee Bills

• Member’s Bills

• Private Bills

• Consolidation Bills

• Statute Law Repeals Bills

• Statute Law Revision Bills Chapter 8 deals with the handling of Member’s Bills. Further information and guidance is available through the SGLD/OSPC instructing Bills intranet site and the Billskill bulletins which can be accessed at:

http://intranet/content/departments/osse/new/bills/GLSS.Bills.Sco.1.htm Subordinate Legislation 1.6 This Handbook does not deal with subordinate legislation (except in respect of powers to make subordinate legislation contained in Bills – see para 4.148). The SSI Guidance for Policy Teams is available through the link below: http://sa45eda/lcs/Legislation%20Portal/SSI%20Guidance%20for%20Policy%20Teams.aspx Chapter 2

Chapter 2: At-A-Glance Checklist For Bill Teams

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AT-A-GLANCE CHECKLIST FOR BILL TEAMS Milestones 1 CSCL agrees slot in outline legislative programme.

2 Cabinet approves CSCL provisional recommendation.

3 Policy Division drafts consultation paper.

4 Consider financial arrangements with Finance team.

5 Cabinet approves consultation proposals.

6 Publication of Consultation Paper on general policy as approved by Cabinet.

7 Policy Division completes policy instructions for SGLD.

8 Cabinet approves CSCL recommendation of Bill’s firm place in legislative programme.

9 Consultation responses collated/analysed (this may be completed before steps 7/8 or ongoing during step 11).

10 Consider the need for orders under the Scotland Act 1998.

11 SGLD completes drafting instructions to OSPC.

12 OSPC completes draft Bill.

13 Cabinet approves terms of draft Bill for consultation.

14 Second consultation (ideally) on draft Bill.

15 Second consultation responses collated/analysed.

16 Cabinet agrees final policy proposals.

17 Policy Division drafts accompanying documents, notably Explanatory Notes, Policy Memorandum and Financial Memorandum; also draft Delegated Powers Memorandum, as appropriate.

18 Financial Memorandum cleared with Finance.

19(a) Officials Bill Management Meeting (mandatory) on state of readiness for introduction (Bill Teams should discuss with Legislation and Parliamentary Liaison Team).

19(b) Ministerial Bill Management Meeting (mandatory) on state of readiness for introduction (Bill Teams should discuss with Legislation and Parliamentary Liaison Team).

20 Draft Bill and accompanying documents finalised and approved by Cabinet Secretary / subject Minister and others with an interest (including Cabinet Secretary for Finance and Sustainable Growth).

Chapter 2: At-A-Glance Checklist For Bill Teams

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21 Final version of draft Bill signed off by First Minister.

22 Final draft of Delegated Powers Memorandum approved by lead Minister and others with an interest.

23 Draft Bill and accompanying documents submitted to Presiding Officer.

24 Draft Delegated Powers Memorandum to Parliament’s Legislation and Parliamentary Liaison Team (at least 1 week before introduction).

25 Views of Scottish Law Officers on legislative competence obtained.

26 Agreement to introduce Bill sought from Minister for Parliamentary Business.

27 Agreement to introduction received from the Minister for Parliamentary Business (allow at least 3 working days).

28 Bill with accompanying documents introduced to Parliament (publication is usually early the following day).

29 Delegated Powers Memorandum published and submitted to Subordinate Legislation Committee by Parliament’s Legislation and Parliamentary Liaison Team (immediately after Bill introduction)

30 Publish Equality Impact Assessment (If not already done) 31 Media briefing no earlier than day of publication of Bill (i.e. usually the day

after introduction). 32 Financial Resolution (as appropriate) agreed by the Cabinet Secretary for

Finance and Sustainable Growth and lodged with Parliament. 33 Stage 1 debate (allow at least 12 weeks).

34 Stage 2 (at least 11 sitting days after Stage 1).

35 Revised or supplementary Delegated Powers Memorandum to be submitted to Parliament’s Legislation Team roughly at least 10 days before Stage 3.

36 Revised or supplementary Explanatory Notes to be submitted to the Parliament’s Legislation Team roughly at least 7 days before Stage 3.

37 Revised or supplementary Financial Memorandum to be submitted to the Parliament’s Legislation Team roughly at least 7 days before Stage 3.

38 Secure Crown consent, where needed, before Stage 3 at very latest.

39 Stage 3 (at least 9 sitting days after Stage 2).

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Finalise the Explanatory Notes (this should be done in the 4-week period between Stage 3 and Royal Assent. Once the notes have been agreed with SGLD and OSPC the Bill Team should forward them to the Queen’s Printer for Scotland – see guidance notes.)

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Royal Assent (at least 4 weeks after Stage 3, except by agreement of CSCL and Law Officers – please specify if this is likely to be required).

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Earliest commencement of Bill (at least 8 weeks after Royal Assent, except by agreement of CSCL – please specify if agreement required).

Chapter 5: Preparation For Introduction

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Chapter 3 Project Start-up Introduction 3.1 Developing a Bill is a challenging project. No two Bill experiences are the same. You may be involved in emergency legislation or you may be setting out towards the introduction of a significant Bill some time in the future. 3.2 The more familiar you can become with the Bill process as early as possible the easier the Parliamentary stages are likely to be. This guidance will provide you with information about the key processes and milestones involved in the Bill process, but you are likely to benefit considerably from discussing with previous Bill Teams their experiences. Those involved The Bill Team If you are in the process of putting together a Bill Team you may find the following generic job adverts useful: Administrative Officer Policy Officer Team Leader 3.3 Below is a list of tasks which all Bill Teams will have to undertake during a Bill’s development and parliamentary passage. The number of people required to undertake these tasks will depend on the context of the Bill (size, complexity, stakeholder landscape, political views etc.) but the average Bill Team comprises 2/3 people. 3.4 Bill Management – Overall management of the Bill project; ensure Ministers’ policy intentions reflected in the Bill; creating or managing the creating of key documents; ensuring all key tasks completed to time; leadership to wider Bill Team. 3.5 Policy – Developing the initial policy rationale for the Bill and refining it in the light of Ministerial/stakeholder/parliamentary views. 3.6 Legal – Working with lawyers; understanding the technical operation of the Bill. 3.7 Stakeholder engagement/Comms – Developing good internal and external relationships; internal with Private Office, Comms Team, other policy branches, SGLD/OSPC; externally with stakeholders, NDPBS, Parly Clerks etc. 3.8 Processes – Negotiating internal and external processes and tracking Bill development, such as consultation requirements, Cabinet clearance, Bill Management Meetings, introduction to Parliament, parliamentary stages, Royal Assent and implementation. 3.9 Administration – A range of general support tasks, including and maintaining distribution lists, contact details, filing and general logistical support.

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3.10 Documentation etc. – Producing a wide range of documents, including Cabinet papers, briefing, Bill accompanying documents, BRIA/EQUIA, notes on amendments, policy instructions etc. 3.11 Finance – Establishing a robust understanding of the financial implications of the Bill, and the sources of funding which will support implementation. Scottish Government Legal Directorate 3.12 Every Bill Team includes at least one solicitor from the Scottish Government Legal Directorate (SGLD) who will be responsible for advising on legal issues arising from the Bill. The solicitor should be involved in the development of the policy in order that any potential difficulties with legislative competence are ironed out at an early stage. Based on the Bill Team's instructions (through 'policy instructions'), the solicitor instructs Parliamentary Counsel (the draftsman, who is a member of the Office of the Scottish Parliamentary Counsel, OPSC) to draft the Bill (the 'drafting instructions') and, subsequently, any Government amendments. 3.13 Before the Bill is introduced, the solicitor drafts a note on legislative competence which is sent to the Scottish Law Officers for their confirmation that they are content that the Bill is fully within competence. The solicitor will also be asked to check the accompanying documents and other documents such as consultation documents. Further information on the role of the instructing solicitor is contained in the SGLD Bill guidance. Scottish Parliamentary Counsel 3.14 Government Bills are drafted in the Office of the Scottish Parliamentary Council (OSPC) on the basis of the drafting instructions prepared by SGLD. The Draftsman will follow the “proper form of a Bill” and “form of amendments” as are determined by the Presiding Officer. See also the Parliament’s Bill Guidance at the link below: http://www.scottish.parliament.uk/business/bills/billguidance/gpb-c.htm 3.15 At an early stage in the Bill’s development, First Scottish Parliamentary Counsel nominates a lead drafter (usually a senior Counsel) for the Bill. He or she should be kept informed of significant developments in the policy and of progress in preparing the drafting instructions. The lead drafter (usually working with a junior Counsel) will be responsible for preparing the Bill. Preparing a draft of a Bill of a reasonable size can be expected to take at least three months from the time when Counsel starts work on the instructions. Throughout the process, there is likely to be a sequence of comments, exchanges and further instruction until the Bill is ready for Introduction. As with the process of instructing the drafting of the Bill in the first place, the process of refining and developing the draft Bill is mainly through the instructing solicitor. If at any point you do deal direct with OSPC it is essential to ensure that SGLD is apprised of substantive exchanges as early as possible. Patterns of working are usually established at the outset. 3.16 Three weeks before the Bill is ready to be introduced (or earlier if a potentially difficult or doubtful issue has emerged) Counsel will write to the Parliamentary authorities about questions to which the Bill might give rise which would be of particular concern to the Presiding Officer (often referred to as the 'three week letter'). For example, OSPC will supply the Parliamentary authorities with a note setting out the Government’s views on legislative competence, consult them on matters such as hybridity, the need for a Financial Resolution or for Crown consent, and have some general discussion about the scope of the Bill. The Bills scope dictates, through the rule that amendments must be relevant to the Bill, the permissible

Chapter 5: Preparation For Introduction

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subject matter of amendments which may be made to the Bill in the Parliament both by the Government and by others. 3.17 OSPC will, again on the basis of specific written instructions from SGLD, prepare Government amendments to Bills and certain procedural motions. If a Bill requires a financial resolution, OSPC will draft the appropriate motion without instructions. 3.18 OSPC may attend the stages of Bills at which amendments can be made and may be invited to attend Ministerial briefings, particularly those where matters relating to the wording of the Bill or any of the specific matters mentioned above are likely to be relevant. OSPC can also advise on matters such as grouping of amendments and running order of proceedings at stages 2 and 3. Legislation and Parliamentary Liaison Team 3.19 Responsibility for preparing the Government’s legislative programme in each session of Parliament rests with Legislation and Parliamentary Liaison Team within Constitutional and Parliamentary Secretariat. The team provide advice and guidance on dealing with primary legislation and the Bill Handbook. The main contacts are Ian Turner, Steven MacGregor and Michael Abell. Ian, Steven and Michael will be in contact with you throughout the process of preparation of your Bill and you should not hesitate to contact them at any stage. In general, submissions to Cabinet on legislation (including timetabling matters) should be cleared with them in advance of going to your Minister for clearance. Cabinet Secretary for Parliamentary Business and the Business Bureau 3.20 The Cabinet Secretary for Parliamentary Business is responsible for the management and monitoring of the Government’s business in the Parliament. The Cabinet Secretary is also concerned with the operation and procedures of the Parliament. It is the Cabinet Secretary for Parliamentary Business who agrees the Introduction date of all Bills. PS/Cabinet Secretary for Parliamentary Business (Gill Glass) will advise on the timetable for the Parliamentary stages of a Bill. 3.21 The Parliamentary Bureau consists of representatives of all the political parties with 5 or more MSPs and is chaired by the Presiding Officer. The Cabinet Secretary for Parliamentary Business is the Government’s members of the Bureau. In relation to Bills, the main roles of the Parliamentary Bureau are in:

• organising the business programme of the Parliament, including the timetable for consideration of Bills by the Parliament and committees;

• referring Bills on Introduction to the lead Committee or, where the subject matter spans several committees, submitting a motion to the Parliament to designate a lead Committee; and

• determining the order of consideration for Bills at Stage 2 if the Parliament has not so decided on a motion of the Parliamentary Bureau. Amendments are disposed of in the order in which the provisions to which they relate arise in the Bill unless the Parliament has decided otherwise on a motion of the Parliamentary Bureau.

Ministers and Private Offices 3.22 Some people working on a Bill will already be familiar with the workings of the Ministerial office, their demands, idiosyncrasies and foibles. Those who are not will need to

Chapter 5: Preparation For Introduction

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catch on as quickly as possible. Securing and maintaining the goodwill of the Private Office is invaluable. Securing and maintaining that of the Minister is even better, but his/her office is a good place to start. The key to this relationship is:

• respecting deadlines; • always keeping the Private Office and the Minister in touch with what is going on;

being reliable; and • remembering that you are not the only fish the Minister has to fry (nor necessarily the

biggest one in his/her pond).

3.23 Responsibility for preparing, organising and checking the Minister’s papers will be divided between the Bill Team and the Minister’s Private Secretary and it is essential for their respective duties to be complementary. It is the responsibility of the Bill Team to:

• prepare the relevant background and briefing material; • ensure that at least one set of all relevant briefing material (e.g. copies of the Bill,

Notes on Amendments, etc) is made available to the Private Secretary at the time requested by the Minister. At Stages 2 and 3, it may be necessary to liaise with the Private Secretary to have the final briefing delivered to the Minister as soon as it is ready, which might not be until the evening before a Committee or Plenary session;

• keep a note of any Ministerial undertakings made during all stages of the Bill and provide, at the conclusion of each stage, a note for the Minister with an indication of the action that is being taken; and

• under the terms of the FOISA, Scottish public authorities are required to proactively release as much information as possible through their Publication Scheme. The Bill Team, therefore, should give due consideration to the proactive release of as much information as possible, at every stage of the process, to give interested parties as much background as possible to the legislation.

3.24 It is usually convenient for the Minister’s and Private Secretary’s papers to be recovered from them immediately after any debate, for spent notes to be weeded out, the notes on the new amendments inserted in the appropriate order, and the papers returned in good time to the Private Secretary. Time should be allowed for the Minister to go over the papers again before the next briefing session, at which point notes on late amendments will be added by the Private Secretary to the Minister’s papers. It is the responsibility of the Private Secretary to:

• ensure (so far as possible) that the Minister sees and reads papers from the Bill Team in good time, and to let the Bill Team know as soon as possible whether any further action is required of them;

• give the Bill Team clear instruction as to the Minister’s preference on both the form and the content of speeches, Notes on Amendments, etc;

• ensure that the Minister’s, and the Private Secretary’s own, set of papers are returned to the Bill Team immediately after each session for them to be updated; and,

• check the Official Report. This is important when there have been particularly complex amendments discussed or there is reason to believe that the Minister departed substantially from the speaking note. Any Ministerial statements made during the passage of the Bill could be used by the courts in determining what the Parliament had in mind when passing the Bill so it is important that the Minister’s words are accurate. Bill Teams can liaise with staff at the Official Report as to when the copy is ready to check and suggest corrections. While the Official Report will

Chapter 5: Preparation For Introduction

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accept corrections where they have incorrectly reported what was said, they will not accept alterations to the substance of a speech. Where the Minister has made an inadvertent error, Parliament are developing (as at November 2010) a procedure for dealing with this: contact the staff of the Official Report for guidance on what to do.

3.25 Copies of the Business Bulletin and marshalled lists of amendments are obtained from the Scottish Parliament website. Policy Divisions 3.26 If your Bill Team has policy responsibility for the Bill’s provisions you will probably have few dealings with other Policy Divisions in the Government. However, if the Bill covers areas of responsibility beyond those of the Bill Team, you may be co-ordinating the input of various policy leads across the Government. If this is the case, you will need to look at the systems you use to facilitate this process. How will you distribute and allocate amendments? How will you receive briefing? It is a good idea to make contact with other Bill Teams to find out how they manage the process and what IT systems are used. The Legislation and Parliamentary Liaison Team are also able to offer advice. 3.27 As the Bill Team, you must know or find out what is going on at each stage. Share this information with the other policy leads whenever they need to know it. In return, ask them to keep you appraised of anything that the Bill Team should know such as the impact of amendments they are dealing with. To help achieve this, ask policyholders to copy any important papers to the Bill Team. 3.28 Although the Bill Team’s life revolves around the Bill, the other policy leads will have other work to keep them busy. There will be times when you will want these people to respond to extremely tight deadlines and other unreasonable requests. To make that task easier, always be reasonable with deadlines at other times. Do not say you need something by tomorrow morning, if the day after tomorrow would do. Be understanding, be honest, be friendly and always be appreciative. When sending lengthy documents to policy leads, it can be helpful to list the different paragraphs or sections that are relevant to the different policy leads, in a covering email, rather than having them wade through text that has no impact on their area. Press Office 3.29 The advent of the FOISA on 1 January 2005 signalled the need for greater openness and transparency across the Scottish public sector. As stated above, each authority covered by the Act, including the Scottish Government and the Scottish Parliament, is now under a statutory obligation to proactively release as much information as possible under their Publication Scheme. 3.30 Some Bills, however significant they seem to their Bill Teams, will slip largely unnoticed by the media through their Parliamentary stages. However, if your Bill is an important feature in the Government’s programme, an absence of Press attention will not be considered a success. 3.31 Press Office play an ever-increasing role in helping Ministers to set and control the agenda for press coverage of legislation. Discuss the appropriate media strategy for your Bill with the relevant Press Desk at an early stage, including announcements concerning the release of new information, seeking Ministers’ views as necessary. Agree where your respective responsibilities lie.

Chapter 5: Preparation For Introduction

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The Bill Team should:

• in consultation with the Committee Clerk on likely progress, estimate which sections are likely to be debated on which days and suggest that the Press Office plan news releases accordingly;

• provide the Press Office with the necessary material to use in writing news releases (lines to take, excerpts from speeches etc.);

• warn the Press Officer of any impending controversial debates, announcements or Executive amendments;

• consider publication of further information regarding the legislation and discuss with the Press Officer inclusion of a reference to this in the press release; and

• provide the Press Office with contact telephone numbers in case of enquiries.

The Press Office should:

• advise on the best days to maximise press coverage; • when appropriate, brief journalists before and after debates; • write news releases, using information provided by the Bill Team; and • supply the Bill Team and Cabinet Secretary for Parliamentary Business with daily

press reports.

3.32 As with Ministers, your relationship with Press Office will be a success if both sides do all they can to minimise the likelihood of nasty surprises. Committee Liaison Officers 3.33 The Committee Liaison Officers (CLOs) are the main link between the Committee Clerks and DG’s. The Bill Team leader will be expected to develop good relations with the relevant Clerk. The CLO will have established good links with the respective Clerks and it will be useful to keep them appraised of progress. Many CLOs are also PS/DG’s so will already be alert to the main issues. When – Timetable for Bill 3.34 Bills vary in length, complexity and importance; some are controversial and many cut across a multitude of interests. These and many other factors affect the timetable for preparation of a Bill. 3.35 The timetable should always be prepared in consultation with SGLD (Scottish Government Legal Directorate), OSPC (Office of the Scottish Parliamentary Counsel, sometimes called 'Counsel'), Legislation and Parliamentary Liaison Team and PS/Cabinet Secretary for Parliamentary Business. The length and complexity of the proposed legislation will have an influence upon the work required in developing policy proposals, carrying out consultations and preparing policy instructions for the solicitor (SGLD). 3.36 A timetable template is available from Legislation and Parliamentary Liaison Team along with guidance notes for its completion. Policy instructions 3.37 Once policy proposals are developed, Cabinet has agreed and a consultation has been carried out, policy leads and the Bill team consider the evidence from the consultation and other information to develop 'policy instructions'. This is a document(s) that says what the Government wants to achieve through having a Bill, why it is necessary, what already exists

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and why this needs to be changed or amended, an overview of existing legislation in the relevant areas, and a detailed consideration of what the issues are, what the policy is and what is expected to be the outcome. The policy leads should develop these and they are filtered through the Bill team, who are instructing SGLD. There may be more than one policy area so the Bill team has the overview and project manages the development process. Drafting instructions 3.38 SGLD then considers these policy instructions and works with the policy leads through the Bill team to clarify the intent of the policy. SGLD develops and writes 'drafting instructions'. For a medium sized Bill (see below, under Timing) this can take 2 to 3 months. 'Drafting instructions' instruct OSPC to draft a Bill. OSPC drafts the Bill based on the drafting instructions and a series of exchanges between OSPC and SGLD. During these exchanges, SGLD liaise with the Bill team to sort out issues, questions, etc. The Bill team act as the filter for these queries back to policy leads. It can be helpful if the Bill team, OSPC and SGLD meet on particularly thorny issues. This process can take around 3 months for a medium sized Bill. Timing 3.39 Sufficient time should be allocated for SGLD to prepare the drafting instructions to OSPC and for OSPC to draft the Bill. Much depends on the length and complexity of the Bill. Bills are divided into sections (like topics within the overall subject) and as a rule of thumb a more complex Bill will have more sections and a long Bill will have more sections. Preparing a Bill of a medium size (21-50 sections) to the stage where the Bill is ready to be sent to the Parliamentary authorities for its pre-introduction scrutiny (usually three weeks before the Bill's official introduction date) takes around 5 to 6 months. That doesn't include the time taken by policy leads and the Bill Team working together to prepare the policy instructions that go to SGLD. 3.40 Depending on the Bill, there may be overlap between some of these pre-introduction stages. For example, OSPC may be able to begin work on parts of the Bill before they have received all of the drafting instructions. That means that parts of the Bill are at different stages. 3.41 Timetables will be kept under review by the Legislation and Parliamentary Liaison Team and PS/Cabinet Secretary for Parliamentary Business. Although timings may alter due to factors outwith the Bill Team’s control, time limits should be set at each stage, agreed with SGLD and OSPC, and observed as far as possible. Do not expect SGLD and OSPC to make up the time if too much time has been spent drafting policy instructions. The Bill team need to have a firm grip at this early stage, especially where there are a lot of different policy leads involved or where policy leads are not clear on what they want to achieve through a Bill. Any slippage in the agreed timetable which results in the late delivery of policy instructions to SGLD and thus the late delivery of drafting instructions to OSPC may lead to further delays in producing a draft Bill. Any likely slippage in the timetable should be reported to Legislation and Parliamentary Liaison Team as early as possible since this will impact on the overall legislative programme as well as on the Bill’s progress through Parliament.

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Chapter 4 PREPARATION OF A BILL Legislative Programme 4.1 Responsibility for preparing the Government’s legislative programme in each session of Parliament rests with Legislation and Parliamentary Liaison Team within the Constitutional and Parliamentary Secretariat. Each session of the Scottish Parliament lasts for 4 years, i.e. if a Bill is not passed in one year it can be “carried over” to the next Parliamentary year of the 4 year session. However, the First Minister announces in June or September an annual programme of legislation and, at this stage, the general expectation is that Bills which are announced as part of the programme will be completed within the Parliamentary (or legislative) year. 4.2 Legislation and Parliamentary Liaison Team will commission information on proposed future legislative proposals from DG’s on, at least, an annual basis. DG’s will be asked to state briefly what the proposed Bill will do, in what timescale the legislation is required if time critical and if it is, whether the legislation is generally contentious or sensitive and how many sections the Bill is likely to contain. Legislation arising from an ECHR incompatibility or potential incompatibility may be inescapable but the speed at which it requires to be taken forward will depend on whether a Court decision has been taken or is being anticipated. Where the Government is taking pre-emptive action, a little bit more time may be available. You should make this clear when setting out information for a bid under the legislative programme. DG’s proposing a large number of Bills will also be asked to prioritise these, since the manageable size of the Government's legislative programme in each year is around 15 Bills. In addition to the Government's planned legislative programme, there is also the need to provide for contingencies and to allow for time for Members’ or Committee Bills. Ministers and Collective Responsibility Cabinet Sub Committee on Legislation 4.3 Legislation and Parliamentary Liaison Team also acts as Secretariat to the Cabinet Sub-Committee on Legislation. The future legislative programme is derived in the main from Manifesto commitments made in the run-up to each new Parliamentary Session. There may of course be additions to the programme in the course of the Session. The CSCL Secretariat should be given the opportunity to comment on draft papers to Cabinet relating to the principle of legislation on an issue and draft papers relating to the policy content, etc, of a proposed Bill. In general, the approach to Cabinet should be by means of a memorandum for discussion, unless the approach relates to detailed policy issues raising no new issues of special significance, in which case it may be appropriate for consideration of the issues to be taken by Cabinet correspondence. 4.4 Around June each year, Cabinet will take decisions about the legislative programme for the coming year. Approval is usually given in principle to plans for the forthcoming legislative programme starting after the summer recess up to the following June and will form the First Minister’s statement. Once Cabinet has agreed the forward legislative programme, at least in principle, Legislation and Parliamentary Liaison Team will ask Bill Teams to

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complete a fortnightly monitoring report along with a detailed timetable for the various stages of their Bills – see template. 4.5 CSCL approval may be required where the Bill policy initially approved by Cabinet has significantly changed – usually either following consultation or in the course of the Bill’s Parliamentary process - and CSCL Secretariat will be happy to advise in each case. 4.6 If a CSCL paper is required the following template should be used - the paper will be issued by CSCL Secretariat following clearance by the relevant Cabinet Secretary and responses from CSCL members (DFM, Minister for Parliamentary Business and Lord Advocate) can be requested in either 7 days (routine) or 3 days (urgent). When seeking clearance from the relevant Cabinet Secretary CSCL Secretariat (Ian Turner & Michael Abell) should be copied in. Cabinet Sub-Committee on Legislation - Remit and Working Arrangements Chair: Deputy First Minister Deputy Chair: Minister for Parliamentary Business Members: Lord Advocate Senior Officials: The following senior officials will normally attend:- DG Governance and Communities Director International and Constitution Directorate First Scottish Parliamentary Counsel The Solicitor Head of Constitutional and Parliamentary Secretariat Remit: To:- (a) Monitor the management of the Government’s current legislative programme and submit regular progress reports to the Cabinet; (b) Keep under regular review the Government’s priorities for future legislation and recommend future legislative programmes to the Cabinet; (c) Approve the terms of proposed statements or other commitments relating to the timetabling of legislation already approved by the Cabinet; (d) Consider proposals for significant changes in the policy content of Bills following approval by the Cabinet of that policy content*; (e) Consider proposals for Member's Bills, Committee Bills and Private Bills and make a recommendation on the position to be taken by the Government on each proposal;

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(f) Approve proposals for the Parliament to be invited to give consent, by means of a Sewel motion, to the inclusion in UK Bills of legislation relating to devolved matters*; and keep the operation of the Sewel convention under review. (g) Consider other matters relating to the management of the Executive’s legislative programme. (h) Monitor the transposition of EU obligations and infraction cases. (* Where the Sub-Committee considers proposed changes to the policy content of a Bill or the subject matter of a proposed Sewel motion to be of such significance or sensitivity as to require Cabinet consideration (or where it is unable to agree on a course of action), the matter should be referred to the Cabinet for decision together with the Sub-Committee's recommendation (where appropriate). In other cases the Sub-Committee will take a final decision on behalf of the Cabinet.) Anticipated Lifespan: Not time limited. Reporting Arrangements: The Sub-Committee will usually meet during the year. It will report to Cabinet providing a progress report on the current legislative programme and/or making recommendations in relation to future legislative programmes. The Sub-Committee will also report to the Cabinet on an ad hoc basis as appropriate. Secretariat: Legislation and Parliamentary Liaison Team in the Constitutional and Parliamentary Secretariat. Approvals of Proposals by Cabinet 4.7 The Scottish Ministerial Code provides that “Ministers should not give undertakings either in or outside the Parliament to introduce primary legislation on any issue without the prior agreement of the Cabinet”. Consistent with this, Cabinet will continue to be asked to: (i) Approve the content of future legislative programmes as approved by the Cabinet Sub-Committee on Legislation; (ii) Agree the principle of legislation on any issue before any public commitment is given and usually before Government resources are committed such as policy Departments or the Office of the Solicitor to the Scottish Government and Office of the Scottish Parliamentary Counsel; and (iii) Approve the policy content, and scope and extent, of each Bill before it issues for consultation/publication (as submitted by the lead Minister after clearance with the Sub-Committee’s Secretariat, i.e. the Legislation and Parliamentary Liaison Team); and (iv) Approve any proposed change to the agreed policy content of a Bill where the Sub-Committee considers that the proposed change is of such significance or sensitivity as to require Cabinet consideration. Further advice can be obtained from Cabinet Secretariat. 4.8 The approvals referred to above (i) and (ii) should normally be sought in a Cabinet Memorandum put forward by the lead Minister(s) for discussion at a Cabinet meeting following the usual pre-digest process. Only in exceptional circumstances – and with the prior agreement of the Minister for Parliamentary Business – should Cabinet approval for the principle of legislation on an issue, or for the policy content of a Bill, or for significant amendments to the policy content of a Bill, be sought in correspondence. The Memorandum referred to above should contain, where appropriate, an indication of the issues that will need

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to be reported on in the Financial Memorandum i.e. timescales, margins of uncertainty, compliance costs and costs to local government. It should also cover staffing implications. The Memorandum should be cleared in draft with the Legislation and Parliamentary Liaison Team before it is submitted to the Minister concerned, and the financial sections of the memorandum must be cleared by Finance before submission to Cabinet and where appropriate Local Government Division. Where a Bill has European Union aspects this should be mentioned in the Memorandum. The Cabinet Memorandum should also make it clear that the proposals have been considered in terms of compliance with ECHR. The paper should set out the specific articles engaged, the issues and key case law considered and the conclusions reached. Ministers must be made aware of any doubts about ECHR compliance. This is particularly important since the Minister has to certify on introduction that the Bill is compatible with ECHR. Bills that are incompatible with ECHR are outwith the competence of the Scottish Parliament. Attention should also be drawn to any perceived risk of legal challenge. Any questions on legislative competence i.e. any other issues about the competence of the Scottish Parliament to legislate on the issue (reserved/devolved matters), should also be dealt with at this time. This part of the Memorandum should have been seen and cleared by the Scottish Law Officers as part of the pre-digest process. Policy Proofing Involvement of UK Government Departments 4.9 Paragraph 4 of the Memorandum of Understanding between the UK Government and the Scottish Ministers provides that the administrations are committed to the principle of good communication with each other, and especially where one administration’s work may have some bearing upon the responsibilities of another administration. The primary aim is not to constrain the discretion of any administration but to allow administrations to make representations to each other in sufficient time for those representations to be fully considered. This should be the guiding principle behind dealings with UK Government departments on proposed legislation. Bills should never come as a surprise to UK counterparts. Bill Teams should therefore liaise with colleagues in UK Government departments from an early stage in the development of proposals. Notifying Freedom of Information Unit 4.10 Schedule 1 of the FOISA lists all the Scottish public authorities which are subject to the provisions of the Act. If your Bill will amend that Schedule in any way, either by adding a new public body or deleting from it one which is no longer in existence, FOI Unit must be informed. The EIRs rely heavily on Schedule 1 of the FOISA in designating which bodies are covered by the Regulations. Scotland Act Orders 4.11 During the preparation and throughout the development of a Bill the interface with reserved matters and the possible need for orders under the Scotland Act 1998 should be considered. Sections 30(2) and 104 of the Scotland Act provide the powers that are most often used to prepare for or to respond to Scottish legislation, although other powers may also be relevant in certain circumstances. Section 30(2) orders change the reservations listed in Schedules 4 and 5 of the Scotland Act either to increase or to reduce the scope of reserved matters. Section 104 orders make provision that is considered necessary or expedient in relation to reserved legislation in consequence of any provision made by or under an Act of the Scottish Parliament. Scotland Act Orders require the agreement of the Scotland Office and all UK Government Departments at an early stage, and s30(2) orders also require the

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consent of the Cabinet Sub-Committee on Legislation and the Whitehall Policy Devolution Committee. 4.12 Section 30(2) orders require the approval of both the Scottish and the UK Parliaments (by affirmative procedure) before being made at Privy Council while s104 orders only have procedure (often, but not always, affirmative) in the UK Parliament. The Scottish Parliament should be notified of prospective Scotland Act orders: in the Policy Memorandum (if the order has been agreed at least in principle with the UK Government); in debate (again if there is agreement at least in principle); and once a s104 order is laid in the UK Parliament by means of a letter from the lead Minister to the Conveners of the lead subject Committee and the Subordinate Legislation Committee, copied to the Clerks. 4.13 Securing agreement to and enactment of such Scotland Act orders can be complex and very time-consuming, in terms of principle, policy, detailed drafting and Parliamentary passage. A long lead-in time should be allowed and orders have to be carefully timetabled since there are generally a large number of orders in the pipeline and resources are limited, both in terms of drafting resources and Parliamentary time, especially in the UK Parliament. Note particularly that where an order is a prerequisite for the proper implementation of devolved legislation, the timetable and preparation of the order needs to be planned carefully. 4.14 If the possible need for a Scotland Act order arises, you should discuss this in the first instance with Constitutional Policy and Civic Participation Unit (Duncan Isles, ext. 45064 or Al Gibson ext. 45560) and with your solicitor. Scotland Act Orders will also be discussed at Bill Management Meetings. Equal Opportunities 4.15 Equal opportunities is one of the four founding principles of the Scottish Parliament, based on the premise that all people are equal and that everyone would have an equal opportunity to participate in society, without fear of discrimination or unfair treatment 4.16 An Equality Impact Assessment (EQIA) should be carried out for all Government Bills (unless agreed otherwise by your Minister). An equality impact assessment tool has been developed to help inform thinking about the policy/practice you are developing, what its purpose is and how it will impact, positively or negatively, on different equality groups. A link to this can be found below http://vq73eda/systems/EqualityUnit/Assessment/ The Equality Unit in DG Health will be happy to provide further advice. 4.17 An example of an EQIA that was well received by the Scottish Parliament's Health and Sport Committee can be found here. 4.18 Separately, all Scottish Executive bills are to be accompanied by a policy memorandum (PM) which must include an assessment of any effects of the bill on equal opportunities. You should use the completed EQIA to help shape this. For more information please refer to Rule 9.3.3 of Standing orders or go to para 4.15 Business and Regulatory Impact Assessment 4.19 A Business and Regulatory Impact Assessments (BRIA) should be completed and published as part of the process of introducing any Bill or Statutory Instrument to the Scottish

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Parliament. The BRIA is mandatory (unless a Minister specifically determines otherwise), and versions produced at key points in the policy cycle should help you ensure you: • Apply the five principles of better regulation (proportionate, consistent, accountable, transparent and targeted) and consider whether legislation is necessary; • Understand and takes appropriate account of relevant factors including business impacts and interests, and thereby support increased sustainable economic growth; and • communicate the evidence base effectively to stakeholders and the Parliament. 4.20 Detailed guidance on Business and Regulatory Impact Assessments is at http://www.scotland.gov.uk/Topics/Business-Industry/support/better-regulation/guidance Advice and support is available from your analytical and legal teams, and from the Better Regulation and Industry Engagement team in Atlantic Quay. A key point is that you should start the BRIA process as early as possible in the policy cycle and refresh the assessment as required, including in implementation and evaluation phases. 4.21 The Cabinet Secretary or Minister responsible for the policy is required to sign off all BRIAs prior to publication, and 5 copies placed in the Scottish Parliament Information Centre when the regulation/legislation is presented to Parliament. Where appropriate, one copy should be sent to each of the lead Committee, Subordinate Legislation Committee, Parliament Legal Advisers, and the Better Regulation Team who will ensure that it is published on their website. Offences, Penalties and Powers of Entry 4.22 All provisions creating new offences or altering penalties should be considered against the terms of the Scottish Government’s Guidance on Offences, Penalties and Powers of Entry in Legislation. They should also be drawn to the attention of the Criminal Law Division at as early a stage of formulation as possible and their attention drawn to any aspects that might give cause for concern in relation to the terms of the SG guidance. Criminal Law Division will provide guidance on the terms of any new offence and on the suitability of the proposed penalty and may also refer the draft provisions to COPFS Policy Group for comments as appropriate. Civil Jurisdiction and Procedures and Tribunals 4.23 Legal System Division should be consulted on any legislation which it is considered may have resource implications for the Scottish courts or which raise questions of civil jurisdiction and procedure in civil proceedings or similar questions in connection with Tribunals. Legal System Division should also be consulted in connection with proposals to change the law of evidence, in either civil or criminal proceedings. Proposed provisions for inclusion in a Bill should be drawn to the attention of the Legal System Division at as early a stage of formulation as possible. In certain circumstances it may be desirable for there to be consultation with the Lord President, Sheriffs Principal and/or the Sheriffs’ Association about the legislative proposals. While the Bill Team would normally undertake such consultation, Legal System Division should be consulted on whether such consultation is appropriate or necessary and how it should be undertaken. For example, in certain circumstances it may be desirable for the consultation with the judiciary to be undertaken by a Minister. 4.24 Where a Bill will create or abolish a tribunal, consideration should be given to the interaction with the Tribunals and Inquiries Act 1992. This Act requires the Administrative Justice and Tribunals Council and (in the case of Scottish tribunals) the Scottish Committee of the Council, to be consulted on rules of procedure for those tribunals listed in Schedule 1 to the Act. Section 13 of the 1992 Act contains a power for tribunals to be added to the

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Schedule. The power to add a new tribunal to the schedule is now separately exercisable in or as regards Scotland by the Scottish Ministers, and by the Lord Chancellor as regards England and Wales. Accordingly, if it is intended to add a new tribunal whose functions are exercisable in respect of other parts of the United Kingdom as well as Scotland, then two Orders will require to be made, one by the Scottish Ministers to extend the Council’s remit in or as regards Scotland and the other by the Lord Chancellor to cover the rest of the United Kingdom. 4.25 Consultation with the Administrative Justice and Tribunals Council or its Scottish Committee on proposals for primary legislation affecting scheduled tribunals or establishing new tribunals is not mandatory, but usually takes place and is welcomed by the Council. Consultation re proposals for secondary legislation, however, is mandatory. 4.26 A copy of the Code for Consultation is reproduced here - Administrative Justice and Tribunals Council A consultation period of 4-6 weeks is needed and Bill Teams should make every attempt to comply. It is also worthwhile noting here that it is not necessary to present a final draft of the Bill (or Statutory Instrument) as the consultation document. In all cases, a preliminary draft will suffice and should ensure adequate time for consultation and will pre-empt any adverse comment or declaration by the Council. 4.27 The effect of some Bills will be that other Rules of Court will be required or existing Rules of Court will require amendment. The need for such provision will be considered by the Rules Councils set up to regulate procedure in the Sheriff Court and the Court of Session. Bill Teams should contact the Secretary to the Sheriff Court Rules Council and the Secretary to the Court of Session Rules Council for further advice and guidance on any requirement for Rules of Court. Bill Teams should also inform Legal System Division of the potential for Civil Rules of Court. Bill Teams should bear in mind time may be required to provide Rules of Court to be in place when an Act comes into force. Public bodies 4.28 The Public Bodies Policy Division should be consulted on any legislation which has implications for public bodies, which affects appointments to public bodies or which seeks to set up a new public body (or to abolish an existing body). If the legislation refers to a particular public body, the relevant sponsor branch, Finance Team and Solicitors must be made aware of the legislation at an early stage. 4.29 Primary legislation to establish a new public body that will fall within the remit of the Commissioner for Public Appointments in Scotland (CPAS) should on introduction to the Parliament be accompanied by an Order made under section 3 (3) of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (the 2003 Act). This Order (which is subject to affirmative resolution) will provide that the office or body is to be treated, for the purposes of or in connection with any appointment to the office or body, as if it were one of the specified authorities during the Bill’s passage through the Scottish Parliament. The Bill should include provision to add the new body to schedule 2 of the 2003 Act, this schedule being the list of specified authorities that fall within the remit of the CPAS. 4.30 The practical effect of this measure is to ensure that an appointments process for the body’s first board can be commenced as soon as the Order has been approved. In considering the need for this additional legislation, Bill Teams must bear in mind that an appointments round will typically take about 6 months from the invitation to apply through to the actual appointments.

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Further advice on the public appointments process and the requirements of the 2003 Act can be obtained from the Public Appointments Team. 4.31 Bill Teams should also consider the implications of the Public Services Reform (Scotland) Act 2010, which makes provision for the transfer and delegation of the functions of public bodies, for the publication of information on expenditure and certain other matters by certain public bodies; about the exercise of scrutiny functions by certain bodies, including provision in respect of the involvement of users of scrutinised services, co-operation and joint inspections; and in relation to complaints handling procedures of listed authorities. 4.32 The Bill should include provision to add the new body to the appropriate Schedules. Advice should be obtained from the Public Bodies Policy Division. Legislation which contains definitions or lists of public bodies which may need to be amended includes: • the House of Commons Disqualification Act 1975 and the Scottish Parliament (Disqualification) Order 1999 – see paragraph 4.34; • Legislation on maladministration – see paragraph 4.40; • the Ethical Standards in Public Life etc. (Scotland) Act 2000, schedule 3 – contact Local Governance Division; • the Freedom of Information (Scotland) Act 2002 – contact the Freedom of Information Unit; (see also paragraph 4.10); • the Equality Act 2010 - contact the Equality Unit, DG Governance and Communities; • The Public Appointments and Public Bodies etc. (Scotland) Act 2003, schedule 2 – contact the Public Appointments team in HR Resourcing; • The Public Services Reform (Scotland) Act 2010 – Schedules 5, 6, 7 and 8. 19 and 20 – contact the Public Bodies Policy Division Civil Enforcement 4.33 All provisions concerning the use of diligence for the enforcement of civil obligations, or for the civil enforcement of a criminal or administrative penalty should be drawn to the attention of the Civil Law Division at as early a stage of formulation as possible. Criminal Justice Division will provide guidance on the suitability of the proposed use. Disqualification from Membership of UK Parliament and Devolved Administrations 4.34 It is common for UK Acts of Parliament which create public offices to provide for holders of those offices to be disqualified from membership of the UK Parliament by adding them to Schedule 1 to the House of Commons Disqualification Act 1975. Statutory mechanisms also exist for office-holders to be disqualified from the devolved administrations and legislatures (the Scottish Parliament and the Welsh and Northern Irish Assemblies). Parliamentary disqualification is a reserved matter. A Need to Disqualify Office Holders? 4.35 Where a Bill proposes to create, alter or abolish offices, Bill teams will need to consider whether office holders within those offices should either be disqualified or, where it is proposed that an office is to be abolished, whether an entry in the existing disqualification framework should be removed.

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If the following policy criteria apply to an office holder, they should be disqualified: • Offices for profit in the gift of the Crown or Ministers (this includes salaried, pensionable and certain fee-paid posts, but excludes posts attracting expenses alone. To prevent trivial disqualification, offices where the remuneration is less than £10,000 per year are not normally disqualified); • Certain positions of control in companies in receipt of Government grants and funds to which Ministers usually although not necessarily make appointments; • Offices imposing duties which would prevent their holders from fulfilling Parliamentary duties satisfactorily; and • Offices whose holders are required to be and be seen to be politically impartial. 4.36 The question has previously arisen of whether the ‘office of profit’ criteria would remain relevant in terms of disqualification from the UK Parliament where office-holders operate wholly in the devolved area and are now appointed by Scottish Ministers as opposed to UK Ministers. The UK Government’s view is that there are strong arguments for holders of offices of profit in the gift of devolved administrations to be disqualified from all the administrations and the UK Parliament. Further, the policy criterion are consistent across the UK and therefore (irrespective of which criterion applies) disqualification from one legislature or administration should result in disqualification from all. How to Disqualify Office Holders 4.37 Where Bill teams consider, subsequent to the criteria outlined directly above, that it is necessary to change the existing provisions for disqualification, this should not be done by attempting on the face of the Bill to directly amend the 1975 Act or the relevant statutes that apply to the devolved administrations. Such direct amendments are unlikely to fully comply with the restrictions on the legislative competence of the Parliament. Neither should Bill teams seek to provide for disqualification of office holders from membership of the Scottish Parliament by way of general powers contained in the Scotland Act 1998 to make subordinate legislation, such as section 104 of that Act (see section 4.57). 4.38 Instead, provision for disqualification from membership of the Scottish Parliament should be made through one of the periodic Orders in Council that are made specifically for this purpose under section 15(2) of the 1998 Act. Uniquely, these Orders are laid before, and approved by resolution of the Scottish Parliament only, thereby ensuring its role in the process. Constitutional Policy and Civic Participation Team has lead interest within the Government for such Orders. Accordingly, please consult Constitutional Policy and Civic Participation Team in the first instance who can then arrange to make the necessary legislative provision. 4.39 Disqualification from membership of the UK Parliament, the Welsh Assembly or the Northern Ireland Assembly can be provided for in section 104 Orders (see section 4.57), Scotland Office colleagues co-ordinating necessary clearances with relevant UK Government Department contacts as appropriate. Maladministration 4.40 Where a Bill proposes to create a public body, Bill teams should consider whether the body should be subject to the jurisdiction of the Scottish Public Services Ombudsman (SPSO). The SPSO’s role is to consider complaints from members of the public of injustice or hardship arising from maladministration or service failure on the part of public authorities. If it is considered that a proposed body will have dealings with members of the public then

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provision should normally be made in the establishing legislation to amend Part 2 of schedule 2 to the Scottish Public Services Ombudsman Act 2002 (asp 11) to insert a reference to the new body. 4.41 Further, where it is proposed to alter the functions of an existing body, consideration should be given to whether SPSO coverage remains or becomes relevant and, where a body is to be abolished, whether any existing reference to the body in the Scottish Public Services Ombudsman Act 2002 needs to be removed. 4.42 Such action will ensure that the SPSO’s investigatory remit is kept up to date without the need for separate “housekeeping” Orders to be promoted under the Scottish Public Services Ombudsman Act 2002 and, in so doing, make best use of valuable Parliamentary time. Further advice on these matters can be obtained from Constitutional Policy and Civic Participation Unit (Duncan Isles, ext. 45064 or Al Gibson ext. 45560) who should, in any event, be informed of any intention to amend the 2002 Act. Stakeholders Consultation and Civil Participation 4.43 The Government is expected to have involved the public by consulting them before legislation is brought before the Parliament. All Scottish consultations should follow the SG Consultation Good Practice Guidance (GPG). 4.44 Generally, an initial and secondary civic participation/consultation process should take place. For written consultations, the GPG advocates a minimum consultation period of 3 months although you should take into account the accessibility of those you wish to reach and factor in a longer period if necessary. Where a shorter consultation period is required, the reasons for this should be explained to consul tees and every effort made to maximise responses in the time available. There are a variety of participation methods which you could consider using in addition to, or as an alternative to, written methods. 4.45 It is important to involve SGLD in the consultation process, particularly in view of the limits on the competence of the Scottish Parliament and to try to avoid a situation in which Ministers have consulted on a matter which cannot be given effect to by the Scottish Parliament. SGLD may also be able to suggest alternative approaches which would enable the policy to be achieved. 4.46 Your consultation exercise should be ‘fit for purpose’, designed to suit the issue under consideration and the needs of your target audience. The GPG contains full guidance on how to make the most of your exercise. Teams should be able to justify the consultation process followed in any particular case. 4.47 The entire process should be open and transparent. In line with good practice, feedback should be provided to respondents explaining what has happened as a result of your exercise and why. Responses to written consultation exercises must be published in the SG library; (internet publication should also be considered) and an analysis of the response should also be published.. It should be noted here that Class 2 of the SG Publication Scheme commits us to publishing all consultations including responses and summaries of responses and this should be borne in mind throughout the process. 4.48 If the Parliament considers that the consultation process has been inadequate, it has the option either of rejecting the legislation at Stage 1 or of remitting the Bill back to the lead

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Committee for further consultation. This could jeopardise the Government’s timetable for the passage of legislation, and might raise questions about whether the Government was giving due regard to FOISA on the issue of openness and civic participation. The civic participation/consultation process for any proposed legislation should be agreed by Cabinet either in a Cabinet discussion, by Cabinet correspondence or a minute from the lead Minister to Cabinet colleagues. Cabinet Secretariat will be able to advise which method is appropriate in the circumstances. 4.49 The extent of civic participation/consultation before Introduction should, therefore influence the amount of time that the Committee spends on it at Stage 1 – an extensive consultation process should lead to a shorter Stage 1, unless the Government has rejected the views of the participants. Committees have indicated that they will still require to take evidence on Bills, however extensive the Government’s consultations have been. 4.50 It will be for the lead Minister, on advice from Bill Teams to determine the level and form of consultation necessary on a particular Bill, subject to Cabinet approval. It is important to consult with SGLD and OSPC in drafting the consultation document or other material. Decision making about the participation/consultation process should be open and transparent. There may be some Bills (e.g. emergency or consolidation Bills) where the usual level of civic participation/consultation is not appropriate, and this is acceptable under Standing Orders, which do not specify a certain level or method of consultation: rather, they require that the Government informs the Parliament of what consultation, if any, has taken place. When determining what participation/consultation should take place, officials should bear in mind the following factors: • whether the legislation contains new policy provisions; • whether it is likely to be controversial (although this should not be used as a reason for not consulting on non-controversial Bills!); • whether it reflects a manifesto commitment of the Government (In such circumstances, it may be the case that the participation/consultation should be waived. There is little point consulting with stakeholders/general public if there is, in fact, no scope for change); • whether officials have already received representations on the issue from external organisations and individuals; • whether material already exists (either within government or in the public domain) which provides an indication of external views; • that wide ranging consultation should lead to better legislation; and • what work has been undertaken by Committees. 4.51 The gist of the Consultative Steering Group (CSG) recommendations is that the policy-making process should be widened out considerably to take on board the expertise in civic society and that the Government should be more proactive than it has been previously. What this means in practical terms is that the Government should be considering as wide a range as possible of methods of participation and consultation and, in terms of the FOISA, of publishing the results. There continues to be a role for traditional methods of written consultation, but officials and Ministers should also consider other ways of eliciting the views of particular organisations and the public as necessary. You should be clear about your target audience and the particular sectors of the population you wish to reach. Examples of the sectors we consult with include the following: • Business sector • Equalities Groups • General public • Health Boards • Professionals or professional bodies • Local Authorities

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• Other Government Departments • Trade Unions • Voluntary sector • Community Groups Different sectors have different needs. Groups at particular risk of exclusion from the consultation process include the following: • Young people • Older people • Minority ethnic communities • Women • LGBT groups • Faith groups • Disadvantaged or excluded groups/individuals (e.g. those with communication difficulties) This list is not exhaustive and you should always consider the issues for your particular exercise and how better to encourage greater access to the participation/consultation process. 4.52 The civic participation/consultation methods selected should take account of the needs of your target audience. Guidance on carrying out open and effective consultation is provided in the Consultation GPG.. 4.53 Advice and assistance is available from a range of sources across the SG to help you make the most of your exercise (e.g., Civic Participation Policy Branch, MCG, CISD, and Equality Unit). You may also find it useful to seek advice from external organisations that may be able to help in planning and designing your exercise. They may also help you reach your target audience by facilitating communication between the Parliament/Government and civic society (e.g., by advertising and distributing your consultation exercise/paper, by organising meetings etc). 4.54 External organisations may be able to help you reach particular groups and sectors (e.g., young people, minority ethnic communities, the voluntary sector). Some umbrella groups may be able to provide access to a wide range of membership organisations e.g. Scottish Council of Voluntary Organisations (SCVO). Further information on groups who may be able to assist you is provided in the GPG. Please note that the information there is not exhaustive, and teams should think afresh for each exercise. Information on methods for reaching particular sectors of the community is also provided in the GPG but, generally, it will be useful to involve appropriate groups in any decisions about the design of your exercise. 4.55 The advent of the Scottish Parliament, freedom of information and civic society’s expectations of an open and accessible decision-making process, has encouraged the growth of organisations and institutions whose purpose is to act as a facilitator of communication between the Parliament/Government and civic society. Some of these, such as the Scottish Civic Forum, cover a wide range of external organisations. However, you should bear in mind that you may need to pay for the services of such organisations Political Parties, Churches etc 4.56 All consultative papers should be sent to the headquarters of each of the mainstream political parties in Scotland and to churches and faith organisations. Consideration should also be given to involving them in other civic participation activities. Access to and Confidentiality of Responses 4.57 The policy-making process is an open and accessible one. Under the terms of the SG Publication scheme, the Government is committed to publishing all consultations, their

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responses and summaries of responses. Respondees are asked at the outset whether they wish to “opt in” to having their responses published and under the Data Protection Act , regard must be given to their wishes. Access to Information and Responses 4.58 Ministers have emphasised the importance they attach to extending access to official information and responding positively, subject to the conditions of the FOISA, to requests for such information. There are a number of ways in which the Government will channel information to MSPs, including Parliamentary answers, announcements, publications, the Scottish Government website and briefing sessions. However, provision of information to the Scottish Parliament Information Centre (SPICe) offers a quick and straightforward means of ensuring that MSPs have access to Government information and publications. 4.59 The Parliament’s Document Supply Centre acts as a repository for documents and can therefore be used as a channel for making Scottish Government publications (consultation papers, Annual Reports, Departmental circulars etc.) available to MSPs. As much information should be deposited with it or published under the SG Publication Scheme. A minimum of 5 copies must be provided for this purpose. Many of these reports will be formally laid before the Parliament. Separate guidance on the laying of documents is available on the intranet. The key difference is that the Statutory Instrument Clerk co-ordinates the arrangements where the document is to be laid before Parliament. Also, all laid documents are numbered (for tracking purposes). Guidance on contacts with SPICe is available here. 4.60 Arrangements should also be made for copies of documents (such as Consultation papers) to be provided to the Committees which may have an interest. The Committee Liaison Officer (normally the PS/DG) should discuss with the Clerk the number of copies required and ensure that this information is passed on to the relevant division. If it is not possible to alert the Clerk in advance then sufficient copies should be provided to ensure one copy for each member and a copy for the Clerk. 4.61 Wherever possible, Bill Teams should inform the Convener of the lead Committee of the publication date of consultation papers, White Papers etc. at the same time as the Press and general public are made aware of this. Correspondence with the Committee should be by way of a letter from the Minister to the Convener. All correspondence to the Convener should be copied to the Clerk and vice versa. It is helpful if correspondence can be e-mailed as well as issued hard copy. Some Bill Teams have developed an online presence to help keep stakeholders informed about progress with the development of their Bill. Recent examples are: • Housing Bill - http://www.scotland.gov.uk/Topics/Built-Environment/Housing/16342/safeguarding • Children’s Hearings Bill - http://www.scotland.gov.uk/Topics/People/Young-People/c-h-bill • Wildlife and Natural Environment Bill - http://www.scotland.gov.uk/Topics/Environment/Wildlife-Habitats/WildNatEnvBill • Historic Environment (Amendment) Bill - http://www.historic-scotland.gov.uk/index/heritage/environmentbill.htm • Crofting - http://www.scotland.gov.uk/Topics/farmingrural/Rural/crofting-policy/reform-programme/Bill

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• Forth Crossing Bill - http://www.transportscotland.gov.uk/projects/forth-replacement-crossing/bill-process • Public Records Bill - http://www.nas.gov.uk/recordKeeping/publicrecordsbill.asp Bill Development Instructing and Drafting a Bill 4.62 At a suitable point during the pre-legislative consultations, attention will turn to the preparation of the Bill itself. Ideally you should consult on a draft Bill wherever possible. However, the point at which the Bill is drafted will depend on the nature of the consultation process which is being followed, but the key determining factors are likely to be: • whether the policy is sufficiently well developed to allow policy instructions to be prepared and the Bill to be drafted without incurring too much abortive effort, having in mind the need to take fully into account responses to the consultation once that exercise is completed; • the need to ensure that proposals are within the legislative competence of the Parliament (or that there is enough time for any difficulties to be removed); and • the need for a draft Bill (or sections) to be published as part of a second or subsequent round of consultation, allowing for a final review in the light of consultation responses. Policy Instructions 4.63 The Bill Team instruct the solicitor (SGLD) as to the policy proposals for the Bill. These are the policy instructions. The instructions should set out clearly the background to the proposals, what it is that they are intended to achieve and whether there are any existing precedents for the preferred approach ie, what is the problem or issue, what will the policy do in order to change this problem or issue, why legislation is necessary to do that and whether it has been done in this way before. The policy instructions should give an overview of the impact of the policy on human rights, equal opportunities, sustainable development, business etc. For most of these there are separate impact assessment tools and documents that should also be completed separately and that go into more detail. Complete these in order to get the overview for the policy instructions. 4.64 SGLD should be met with at an early stage to discuss the policy instructions and to clarify roles and expectations of each other (Bill team, policy leads and solicitors) in the process. SGLD will provide advice on what they will require to enable them to 'instruct Counsel' (which means prepare instructions so that OSPC will draft a Bill). It is also worth asking them for examples of previous relevant policy instructions that they think were good examples. 4.65 Policy instructions vary in their length and complexity depending upon the particular policy proposals. In some cases, SGLD may be able to instruct Counsel without the need for very much in the way of specific policy instructions. In other cases, SGLD may require a considerable amount of detail to be thought about and set out before being able to take the process forward. For that reason, it is essential to discuss this at an early stage with your solicitor. 4.66 Policy officials and the Bill team need to bear in mind that they are responsible for instructing all of the content of the Bill, down to the finest level of detail: neither the solicitor nor counsel have the responsibility for adding subject matter to the Bill. That is not to say that

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the solicitor or counsel are prevented from suggesting additional or alternative material, but the primary responsibility for deciding on the content lies with policy administrators. For this reason, the policy officials should ensure, as far as possible, that the policy instructions cover all the necessary detail. A look at any recent legislation and the policy instructions on the same (or similar) topic as that covered by the Bill should give a good indication of the level of detail that the instructions might need to include. 4.67 The process of instructing and developing the policy of a Bill rarely ends with the sending of the policy instructions to the solicitor - these are often turn out to be just the first draft of the policy instructions. It is likely that the policy will be further developed as a result of questions raised by the solicitor or counsel. For this reason, it is helpful to involve the solicitor and, where appropriate, counsel in the earlier discussions on the policy content of the Bill. This will not only help to familiarise them with the policy but they may also help to develop the policy and suggest various policy options which should be considered. 4.68 When considering the policy instructions, the solicitor may detect questions of legislative competence which may require to be referred to the Scottish Law Officers and for UK Government Departments to be consulted. 4.69 At the end of this process, the Bill Team ought to be in clear agreement as to what exactly is proposed. This ought to be embodied in a set of final policy instructions which you should send to the solicitor. Sometimes, however, this process is short-circuited and the final policy is embodied in the first draft set of instructions to OSPC which the solicitor sends to you to confirm your policy. It is the responsibility of the administrator to check that what is being instructed by SGLD is in accordance with the desired policy and to raise any concerns about this with SGLD. It is important that the Bill Team keeps track of progress on all aspects of the Bill. 4.70 In light of FOI, policy instructions could be classed as a withhold on the working assumption that they form policy advice, recommendations and preferred options and opinions. They would be classed as a withhold under exemption 29(1) (a) of the FOISA [formulation of government policy] and 30(a) [prejudice to the effective conduct of public affairs – collective responsibility]. Other exemptions may also apply. Further guidance on the working assumptions of FOISA is available here. Instructions to OSPC 4.71 It is for the solicitor (SGLD) to instruct Counsel (OSPC) to draft the Bill (drafting instructions) in accordance with the Bill team's policy instructions. Except in the case of very short Bills, the drafting instructions are usually divided into parts dealing with a particular policy proposal or part of it. Each part of the drafting instructions describes briefly the policy proposal, the background and existing law, and then contains a detailed description of what is proposed. This should reflect the discussions which the Bill team have had with the solicitor on the detailed development of the policy. 4.72 The drafting instructions should also contain any proposals for consequential amendments (ie where another piece of legislation will need to be amended as a consequence of your Bill) or repeals of other or earlier legislation, any transitional or savings provisions and what is proposed for commencement of the provisions.

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Preparation of Drafts of a Bill 4.73 The instructions to Counsel are only the starting point in producing a Bill. On the basis of the instructions, Counsel produces a first draft, which may be of a complete Bill or of particular provisions. Counsel’s drafts are sent to the instructing solicitor, usually with a commentary on the drafts and on any points of difficulty in the instructions. The drafts are subjected to critical line-by-line examination by the Bill Team and other officials (co-ordinated by the Bill Team), whose comments are relayed to Counsel by the instructing solicitor. Counsel prepares revised drafts, which are discussed and further revised as necessary until an agreed draft Bill is achieved. Again, it is the responsibility of the administrators with assistance from SGLD to be satisfied that the draft achieves the policy. Counsel will normally provide fresh prints of the Bill at each round. Once drafting changes have been agreed, a new print of the Bill can usually be produced quickly. 4.74 Full account should be taken of the time required to draft a Bill. Achievement of a target date for issuing a consultation paper on a draft Bill, or Introduction of the Bill or the need to achieve Royal Assent by a specific date may be put in jeopardy if the delivery of policy instructions to SGLD or drafting instructions to Counsel is delayed. The earlier SGLD is able to instruct Counsel and the earlier Counsel is able to begin the drafting, the greater the prospects of meeting the deadlines. The procedures of the Scottish Parliament provide for only two stages at which the Bill can be amended, compared with five in the UK Parliament. It is therefore more important to have the Bill in good order on Introduction as there is much less opportunity to amend it during its parliamentary passage. 4.75 For pre-parliamentary prints Counsel provides a draft which can be copied by the Bill Team as required. The Bill Team is responsible for the distribution of prints of the Bill to all other interested parties. (It may also be advisable to circulate copies of the instructions to Counsel to interested parties.) At this stage, each section and schedule will have an unique “j number”, which will remain with it until the Bill is in its final form for Introduction – it is usually easier to refer to sections by their “j number” as the section number may change from print to print as material is added or deleted. 4.76 Most Bills involve the repeal or amendment of existing legislation. This is an essential part of the drafting (even though usually consigned to a Schedule) and the Bill Team will normally be able to help the solicitor and Counsel by identifying repeals and amendments that are necessary. Bill Teams may find the Statute Law Database useful in doing this, as references to particular bodies etc. which may occur throughout the statute book can be searched for and identified. Teams should consult SGLD’s Library for instructions on access to the database. Library staff will explain the system and issue a password. Legal Issues Gender Neutral Drafting 4.77 The Office of the Scottish Parliamentary Counsel (OSPC) members will draft the Bill. The people doing the drafting (Counsel) are also called draftsmen. Although that isn't a gender neutral term, the draftsmen will draft a Bill in language that means it clearly refers to both men and women, for example, using 'the person' rather than 'he'. Previously, Bills would often use just 'he', 'him', 'his' etc and the convention was that this also applied to women. 4.78 However, Bill Teams should note that where a Bill textually amends an Act, the amendment may be drafted according to the form and conventions of the language of the Act being amended so that the inserted text blends into the recipient Act. Gender neutral drafting

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is not used in such amendments if doing so would result in doubt as to the meaning of existing gender specific language in the Act. Use and Recognition of Electronic Signatures 4.79 Bill Teams should note that when planning new or amending legislation consideration is given to providing for the use and acceptability of electronic signatures. Where there is a requirement for something to be “in writing” and a signed hard copy (such as a letter) is considered acceptable, then an e-mail or some other type of electronic communication with an electronic signature may be equally acceptable, subject to there being an acceptable level of security and authenticity for such electronic communications and signatures. The legislative sources of these provisions are the EC Directive 1999/93/EC and the Electronic Communications Act 2000. 4.80 There are a number of instances in existing legislation which do not comply, e.g. references to “by hand”, “by post” or “by recorded delivery”. Where it is not absolutely clear whether electronic signatures are included in any legislation it may be necessary to amend accordingly. For new legislation it is important to avoid terms such as “writing” and “signing” and to use a technology-neutral term. Legislative Competence 4.81 To a far greater extent than is the case in the UK Parliament, legislation in the Scottish Parliament is subject to external control. The Scotland Act 1998 provides mechanisms for the compliance of a Bill with the limitations on the powers of the Parliament to be verified on Introduction. The Standing Orders then aim to prevent a Bill from stepping outwith these powers. The Scotland Act 1998 then provides an opportunity for the UK Government and the Law Officers to intervene before the Bill is submitted for Royal Assent. Finally, the Scotland Act 1998 provides mechanisms for the compliance of an Act to be tested by the courts. 4.82 Bill Teams need to be aware from the outset of the existence and importance of these limitations and mechanisms. This Handbook does not attempt to provide a full analysis of the intricacies of the limitations of the legislative competence of the Parliament, and simply touches on the key aspects. For this complex subject, early discussion with SGLD is essential. 4.83 Careful and precise drafting of legislation can avoid later legal challenges. Bill Teams should be aware of the need to minimise the risk when advising on the shape or content of legislation and in considering draft legislation which they are preparing. Any perceived risk of challenge should be drawn to the attention of Cabinet in the Memorandum seeking approval for the proposed content of the Bill. 4.84 The limitations upon the legislative competence of the Scottish Parliament are set out in section 29(2) of the Scotland Act 1998. The main limitations are that a provision in an Act of the Scottish Parliament is outside legislative competence if – • it relates to the reserved matters (which are set out in Schedule 5 of the Act); • it is in breach of the restrictions in Schedule 4; • it is incompatible with European Community law; or • it is incompatible with any of the European Convention on Human Rights (ECHR) rights which are given effect by the Human Rights Act 1998. 4.85 Questions about whether a provision in an ASP contravenes any of these restrictions are “devolution issues” which may be adjudicated by the courts. As noted earlier, the

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member of the Scottish Executive in charge of a Bill is required by section 31 of the 1998 Act to make a statement on or before its Introduction that its provisions would be within legislative competence. The Presiding Officer has to state “whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament” 4.86 Under section 33 of the Scotland Act, once a Bill has been passed, there is a four-week period during which the Advocate General or the Attorney General (Law Officers in the UK Government) or by the Lord Advocate (one of the Scottish Law Officers) may refer the question of whether the Bill or any provision of it would be within legislative competence to the Judicial Committee of the Privy Council (JCPC). Under section 32, the Presiding Officer may not submit the Bill for Royal Assent while a Law Officer is entitled to make such a reference, while the JCPC is considering the matter, or if the JCPC has decided that the Bill or any provision in it would not be within legislative competence. It would be unusual for the Lord Advocate to refer a Government Bill to the JCPC under section 33. However, such a referral might be made if, for example, a non-government amendment had been passed which the Government considered to be outside competence. 4.87 Bill Teams should take steps to minimise the likelihood of the legislative competence of a Bill being challenged. Their main source of advice will be the relevant Scottish Government’s solicitor. Where there is any doubt, consultation should also take place at an early stage with interested UK Government Departments with the aim of reaching an agreed view on the competence of the Scottish Parliament to legislate to give effect to the proposals. SGLD will assist in this process and in cases of difficulty may decide that the questions should be referred to the Scottish Law officers for a formal opinion. The UK Cabinet Office Constitution Secretariat should be consulted about any legislative competence issue raised with a UK Government Department, particularly one which raises constitutional issues i.e. about the devolved/reserved divide. Elspeth Macdonald, Head of Constitutional and Parliamentary Secretariat, ext. 40570 should also be notified at an early stage. EU Complications 4.88 At the earliest possible stage in preparation of any Bill, consideration should be given to the EU implications of what is proposed and legal advice should be obtained on whether there is any potential conflict with Community law. All Acts of the Scottish Parliament must be compatible with Community law. Consideration should also be given to whether the Bill should be notified to the European Commission as a draft technical regulation under Directive 83/19/EEC, as amended by Directive 94/10/EEC. International Obligations 4.89 Compliance by Acts of the Scottish Parliament with the international obligations of the UK is, with the exception of EC obligations and incorporated ECHR rights, not a limitation upon the legislative competence of the Scottish Parliament. This is because the courts generally do not take cognisance of the international obligations of the UK except where they have been given effect in domestic law. Instead, under section 35 of the Scotland Act 1998, the UK Government has powers by order to prevent the Presiding Officer from submitting a Bill for Royal Assent where the Secretary of State has reasonable grounds to believe that provisions in the Bill would be incompatible with any international obligations. International obligations for the purpose of this power are defined as excluding obligations under Community law and incorporated ECHR rights. 4.90 This power of intervention is intended to be a power of last resort. Early consultation should take place with relevant UK Departments with the aim of ensuring that the need for its use does not arise.

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By contacting Branch 2 of Europe Division, DG Economy, Bill Teams (in conjunction with their solicitor) can establish whether or not the proposed new legislation causes any breach of international obligations. Europe Division holds a list of past treaties and conventions that outline areas of international (non-EU) law, which may contain obligations of relevance to devolved areas. This is updated annually in conjunction with the Foreign and Commonwealth Office and it is imperative that Bill Teams ensure that their Bill does not breach any of these obligations at an early stage in the proceedings. You should also note that the UK is party to a number of international human rights treaties. Although these treaties are not incorporated into our domestic law, the UK is bound to observe them and the UK courts can and do make reference to these international obligations. These treaties may impact on a wide range of policy areas. In addition, when the proposed Scottish Human Rights Commission is established, it will be in a position to hold Ministers to account on upholding those international obligations. Your solicitor or the Human Rights Unit can offer further advice. Particular Aspect of Bills Form of Bills 4.91 A Bill may not be introduced unless it is in the proper form. The Presiding Officer determines the “proper form” of Bills. Counsel is responsible for ensuring that a Bill is in the proper form. See also the Parliament’s Bill Guidance. The Long and Short Titles of a Bill Every Bill has a long title and a short title. 4.92 The long title is set out at the beginning of the Bill and begins “An Act of the Scottish Parliament to…”. It is a summary of what the Bill does. The long title tends to be drafted by Counsel as the content of the Bill becomes clearer. There tends to be little discussion about the long title but it should be checked to ensure it covers everything in the Bill. The long title can be amended to reflect new material added to the Bill by amendment. 4.93 The short title is set out at the top of the Bill and in the running header. It is also authorised in the text of the Bill itself, usually in the final section of the Bill. The citation provision is usually in the form “This Act may be cited as the Example (Scotland) Act 1999”. (The year is that in which Royal Assent is expected to be given.) The short title can also be amended. 4.94 The Presiding Officer’s recommendations on the content of Bills indicate that the text of a Bill, including the short title, should be in “neutral terms and should not contain material intended to promote or justify the policy behind the Bill”. Titles such as “Improvements in Health Bill” or “Better Farming Bill”, whilst superficially attractive, are unlikely to be helpful to the user of the legislation in the future and will be frowned upon by the Parliamentary authorities. 4.95 Similarly, to assist users of the legislation, the short title of Bills should include “(Scotland)” unless the link with Scotland is already clear (e.g. Standards in Scotland’s Schools, etc Act 2000). This should help users to identify that the legislation is an Act of the Scottish Parliament, rather than of the UK Parliament, and should avoid the possibility of having two Acts with identical titles if, say, both Parliaments were to pass Education Acts in the same year.

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4.96 A Bill often acquires a working title in the early stages of policy development. Whilst that in itself should not determine the short title it is often the case that this working title (or something close to it) ends up as the short title. The short title does not have to be settled until close to the point where the Bill is sent to the Parliament for pre-introduction scrutiny. Where there is a strong desire for a particular form of words to be used for presentational reasons it is important to alert Counsel so that they can advise on whether the proposed title will reflect the content of the Bill and conform to the requirements of neutrality. Counsel may suggest alternatives if necessary. 4.97 Both the short and long titles are discussed in the letter which Counsel sends to the Parliament with the draft Bill 3 weeks before introduction. This gives the Parliament the opportunity to comment, in particular on whether the titles are consistent with the determination on proper form and the recommendations on the content of Bills. Further background information on long and short titles can be found here. The Scope of a Bill 4.98 Standing Orders provide that an amendment to a Bill is not admissible if it is not relevant to the Bill or the provisions of the Bill which it would amend. The effect of this rule on admissibility of amendments is reflected in the concept of the “scope” of a Bill. The “scope” of a Bill is what the Bill is about and helps determine whether any amendment is relevant to it. The scope of a Bill is determined by its content when it is introduced. The long title must reflect that content, and so is a guide to the Bill’s scope, but does not determine it. So an amendment to the Bill at Stage 2 or 3 may be within the scope of the Bill (i.e. relevant to the Bill) but outwith the long title, necessitating an amendment to the title. 4.99 Scope is one of the matters which Counsel discusses with the Parliamentary authorities before the Bill is introduced, so it is important that Counsel is aware of any further matters which the Executive proposes to add to the Bill by way of amendments, or any desire to have a narrowly focused Bill. Either situation could affect the drafting of the provisions of the Bill as well as the long title. Determining a Bill’s scope and its effect on amendments is a difficult matter and Counsel will be happy to offer advice in relation to your Bill if scope is a sensitive handling issue, as it sometimes can be. 4.100 As a rule of thumb, it is unlikely to be relevant to add an additional topic or purpose to a one-purpose bill or to a two-purpose Bill; but it may be relevant to add a purpose to a Bill which has three or more purposes. Generally speaking, each ‘limb’ of the long title describes a distinct topic or purpose. In practice, most Bills which contain several topics or purposes have a common theme, e.g. education, transport, in which case amendments may be permitted only if they fall within the theme of the Bill. Retrospection 4.101 Where it is proposed that any provision in a Bill is to apply retrospectively, the agreement of the Scottish Law Officers is required. This will be obtained by SGLD. This is of particular importance as Article 7 of the European Convention on Human Rights requires that: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

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A retrospective provision in a Bill might be contrary to this Article, and be outwith the legislative competence of the Parliament. The same considerations apply to any power to make subordinate legislation which is permitted to have retrospective effect. Hybrid Bills 4.102 In the UK Parliament, there is a concept of “Hybrid Bills”, which essentially combines elements of public and private bills. In terms of the process in the Scottish Parliament the Standing Orders do not yet mention hybridity. However, the Presiding Officer’s Recommendations on the Content of Bills (Business Bulletin 37/1999 30 July, 1999) notes: “Any Bill introduced as a Public Bill should not normally contain provisions that would affect a particular private interest in a manner different from the private interest of other persons or bodies of the same category or class. Where a Bill introduced as a Public Bill does contain such provisions, or is amended to include such provisions, it may be necessary for the Parliament to establish procedures similar to those applicable to Private Bills to allow persons or bodies who would or might be adversely affected by those provisions to make representations to the Parliament.” Hybridity is one of the matters which Counsel discusses with the Parliamentary authorities before Introduction of a Bill (see paragraph 3.14 and paragraph 5.11). Commencement 4.103 Paragraph 2 of Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions)(Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (SI. 1999/1379) (“the Interpretation Order”) provides that an Act of the Scottish Parliament (or a provision of such an Act) comes into force: (a) where provision is made for it to come into force on a particular day, at the beginning of that day; or (b) where no provision is made for its coming into force, when the Bill for the Act receives Royal Assent. Options for commencement provisions are– (a) specifying a particular date in the Bill; (b) providing that the Bill, or parts of it, come into force at a given interval after Royal Assent [NB not a given period after the passing of the Bill, as is used in the UK Parliament]; (c) providing a power to make a commencement order; or (d) silence, in which case the Bill comes into force when it receives Royal Assent. 4.104 In general, all Bills should commence by commencement order, with the exception of the formal sections dealing with commencement, short title and extent which should come into force on Royal Assent. 4.105 The first option of specifying a particular date in the Bill should normally not be chosen. This is because it will normally not be possible, during the passage of the Bill, to determine when Royal Assent will be granted and therefore any specific date for commencement which is written into the Bill may not be achievable. This is in view of the provisions of sections 32, 33 and 35 of the Scotland Act 1998. Section 32 prevents the Presiding Officer from submitting a Bill for Royal Assent during the period of 4 weeks beginning with the passing (or subsequent approval) of the Bill and, during that period, the

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Law Officers (i.e. the Advocate General, the Attorney General (UK) or the Lord Advocate (Scottish) (see paragraph 6.92) may refer the Bill to the JCPC under section 33 or the Secretary of State may make an order to block the Bill under section 35. In the event of a reference being made to the JCPC, the Bill cannot be submitted for Royal Assent until the reference is disposed of and it will not be known when any decision of the JCPC may be given. 4.106 Accordingly, the first option of specifying a particular date in the Bill should not be chosen unless a clear undertaking has been given in advance by the Law Officers (as previous paragraph) and the Secretary of State that they will notify the Presiding Officer that they do not intend to make a reference under section 33 or, as the case may be, an order under section 35. It is essential to obtain the approval of the Cabinet Sub Committee on Legislation to such a course of action as far in advance as possible. 4.107 Similar considerations also apply to providing that the Bill, or parts of it, should come into force at a given interval after Royal Assent. Unless the period of delay of 4 weeks after the Bill is passed after Royal Assent is waived by the Law Officers and the Secretary of State as mentioned above, it cannot be assumed that the Bill will receive Royal Assent at the end of that period because there could be considerable delay if there is a reference to the JCPC or from there to the European Court of Justice (ECJ) or if the Bill is reconsidered, in which case sections 32, 33 and 35 apply over again (see also paragraph 6.92). 4.108 In general therefore, no Act or part of an Act should be brought into operation earlier than 2 months after Royal Assent whether by a provision in the Act or in a commencement order made under the Act. The purpose of this general rule is to ensure that those who will be affected by the Bill have reasonable opportunity to acquaint themselves with its final form and to prepare for its coming into force. This will mean that, unless the period of delay of 4 weeks after the Bill is passed by the Parliament is waived by the Law Officers and the Secretary of State as mentioned above, the total period of time between the date of passing of a Bill and its coming into force may be at least 3 months and may be much longer if there is a reference to the JCPC or from there to the ECJ or if the Bill is subject to be considered in which case sections 32, 33 and 35 apply over again. It is particularly desirable that this minimum period should be observed in respect of provisions that will directly affect the public, legal practitioners or pending court proceedings. Given this last point it is recommended: • that in general all Bills should commence by commencement order, with the exception of the formal provisions about commencement, short title or extent which should come into force on Royal Assent; • that normally the commencement order should not commence provisions earlier than two months after Royal Assent, other than provisions enabling subordinate legislation to be made in time to coincide with the commencement of the main provisions of the Bill. It is preferable that early commencement is used in this way rather than relying on paragraph 10 (anticipatory exercise of powers) of Schedule 1 to the Interpretation Order; but • the period of two months may be waived by CSCL in exceptional circumstances, such as where there has been a very long period of time between the date of passing of the Bill and its Royal Assent, or other pressing reason such as the need for early implementation. 4.109 Where it is considered necessary to dispense with all or part of the 2 month minimum interval, the express authority for this must be obtained from the Cabinet Sub-Committee on Legislation. CSCL Secretariat will provide the appropriate template and any advice. Immediate commencement would normally mean “on Royal Assent” and would be achieved by the Bill remaining silent on commencement. However, experiences with particular Bills have shown that because of practical arrangements, urgent provisions should be specified in the Bill as coming into force “the day following Royal Assent”.

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4.110 This 2 month period does not apply to Consolidation Acts and Statute Law Revision Acts, for which a minimum period of 3 months between Royal Assent and the earliest commencement date should be observed. It is recommended that Consolidation Acts should also be expressed to commence by a commencement order just in case there are questions that are referred in connection with such Bills. Statute Law Repeals Acts normally come into force immediately on Royal Assent. Counsel will normally observe the following practice for easy identification of commencement provisions in a Bill: • Group all commencement provisions together at the end of the Bill where it is practicable to do so; • Aim to include the word commencement in the title of any section which includes commencement provisions affecting provisions outside the section itself; and, • Put all commencement provisions in a separate section (or schedule) where their length or complexity warrant it. 4.111 The Bill Team should ensure that a full statement of the arrangements for bringing the Act into force is made generally available as early as possible, preferably during the passage of the Bill and that the commencement section of the Bill comes into force on Royal Assent. The Bill Team should also assume responsibility for ensuring that the final arrangements are well publicised, e.g. through Press Releases, articles in specialist press, circulars etc. 4.112 Powers to make commencement orders should normally be conferred on the Scottish Ministers and be exercisable by statutory instrument. Commencement Orders are not subject to any parliamentary procedure, but are scrutinised by the Subordinate Legislation Committee. Delegated Powers 4.113 The Bill Team will have to take decisions at the drafting stage as to whether it will be necessary or desirable for the Scottish Ministers to be given powers to make subordinate legislation – usually in the form of a statutory instrument – and which class of instrument would be most appropriate to give effect to those powers. Bear in mind that the decisions taken will have to be justified to the Parliament, and in particular to the Subordinate Legislation Committee. In some cases, the Bill will be an enabling mechanism leaving the details to be worked out in subordinate legislation (e.g. the Primary Medical Services (Scotland) Act 2004). In the case of such Bills which mainly confer powers on Minister, the lead subject Committee and the Subordinate Legislation Committee expect draft Regulations to be available by Stage 1 failing which by Stage 2. Some of the considerations that can have a bearing on the decisions to be taken are set out below. Frequency of Amendment 4.114 Subordinate legislation may be more appropriate where the provisions are subject to frequent amendment (which would be difficult if they were contained in primary legislation). Examples include lists of bodies, fees, qualifications, etc. Implementing Body 4.115 In many cases the responsibility for putting provisions of an Act into operation rests with an agency other than the Government, e.g. a local authority.

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Attitude of the Parliament 4.116 The Scottish Parliament is reluctant to delegate powers for use later by a Minister unless there are strong arguments of practicability in favour of delegation. The Minister responsible for the Bill must be prepared to justify his request that powers be reserved to him under a Bill and to explain how he will use the power which he proposes to take. Subordinate legislation powers should therefore not be used to avoid policy development on the basis that it will be worked out later and after the Bill has been passed. The Subordinate Legislation Committee are paying particular attention to “Henry VIII powers” (powers to amend primary legislation ). Parliamentary Control of Subordinate Legislation 4.117 The Scottish Parliament exercises varying degrees of control over statutory instruments. Instruments may require to be laid before the Parliament and, if laid, can be made subject to a negative or affirmative resolution. This latter form of control is, of course, the more stringent and, since the terms of the parent Act will settle the type of control to be exercised by the Parliament in subordinate legislation based on the Act, the Bill Team will wish to consider carefully what degree, if any, of Parliamentary control is appropriate in each case. The degree of control should reflect the policy importance of the provision. See also available Scottish Statutory Instruments – Guidance for Administrators on the intranet at the attached link: 4.118 As subordinate legislation cannot normally be amended by the Parliament (it can only be approved or rejected as a whole), the Parliament will be unable to change the detail in the way that it would if the material were contained, say, in a Schedule to the Bill. Super-Affirmative Procedure 4.119 Bill Teams should be aware that on occasion it may be proposed (perhaps by the Subordinate Legislation Committee) that there might be what is sometimes called a “super-affirmative” procedure. Essentially, this is a procedure that involves stages in excess of what is normally required by affirmative procedure (e.g. a mandatory period of consultation on a draft SSI). In general, the Government resists such proposals. Indeed, the Government has agreed to what might be called a “super-affirmative” procedure only in rare and quite exceptional cases (e.g. the designations of the National Parks, where the area of the Park and the powers to be given to the Park Authority were the subject of acute and wide ranging public attention). 4.120 The Government’s current position remains that a proposal for “super-affirmative” procedures should generally be resisted. If one is being considered, you should contact Constitutional Policy and Civic Participation Unit (Duncan Isles, ext. 45064 or Al Gibson ext. 45560) as soon as this proposal arises. It is important to consider whether this additional procedure is justified and the wider legislative implications. Copy the Minister for Parliamentary Business and DG Constitution and Corporate Change into any advice on significant or sensitive policy issues and/or proposals involving subordinate legislation. Crown Application 4.121 Government policy is that the Crown should in general be subject to regulatory requirements and enforcement arrangements on the same basis as others, except where there is a legitimate reason for exemption, for example on grounds of national security.

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4.122 Section 20 of the Interpretation and Legislative Reform (Scotland) Act 2010 provided a new default provision for Scottish legislation whereby the Crown will now be bound by the terms of an ASP or SSI, unless the provision expressly exempts it. This section also abolished the common law rule that the Crown could be bound by the terms of an ASP or SSI by necessary implication. The position as to which Westminster Acts and instruments made under them bind the Crown remains unaffected by the provisions in section 20. 4.123 The approach to Crown immunity adopted in the Food Safety Act 1990 should in general be followed in future legislation, subject to modifications as necessary in particular cases. The process of arriving at the formulation ultimately adopted for the Food Safety Act showed that some legal difficulties could arise in this field. The Scottish Law Officers should therefore be consulted on any future proposals to depart from the Food Safety Act norm and on any Bills where Crown immunity is an issue. Where a Bill will affect a UK government department, the Central Secretariat of the Cabinet Office should be consulted (see Annex 10 for contact). Contact need not be made through the Scotland Office but they would expect to be kept abreast of any issues. 4.124 The Crown Estates Commissioners should also be consulted at an early stage in the preparation of the Bill about any Crown application provision. Once the scope of the proposed legislation and the extent to which it affects Crown interests has been established, they will then advise on the need for and form of a Crown application provision. 4.125 Enforcement action in the courts should however be confined to seeking a declarator of non-compliance and should stop short of exposing the Crown to criminal prosecution. 4.126 Section 40 of the Scotland Act 1998 provides that courts may only make declarators in proceedings against the Parliament, and may not make orders for suspension, interdict etc. However, the effect of this section may be modified by an Act of the Scottish Parliament. Care should therefore be taken in considering the application of any Bill to the Parliament itself, or to the Scottish Parliamentary Corporate Body. Crown Consent – Government Bills 4.127 Rule 9.11 (which reflects the requirements of paragraph 7 of Schedule 3 to the Scotland Act 1998) states that: “Where a Bill contains provisions, or is amended so as to include provisions, which would, if the Bill were a Bill for an Act of the United Kingdom Parliament, require the consent of Her Majesty, the Prince and Steward of Scotland or the Duke of Cornwall, the Parliament shall not debate any question whether the Bill is passed or approved unless such consent to those provisions has been signified by a member of the Scottish Executive during proceedings on the Bill at a meeting of the Parliament.” 4.128 This means that the UK Parliament rules on Crown consent effectively apply to Bills of the Scottish Parliament. The question of whether or not Crown consent is necessary is one which will have to be considered in conjunction with Counsel (and the Parliamentary authorities), prior to the Bill being introduced. 4.129 Early consideration must be given by the Bill Team, in consultation with Counsel, as to whether Queen’s consent, or the consent of The Prince of Wales as Prince and Steward of Scotland, to a Bill is required. If there is any possibility that such consent is necessary, Counsel will thereafter consult the Legislation Team to ascertain their views. If the Legislation Team think that it is necessary, then Crown consent should be sought. Ideally, the question should be given initial consideration at consultation stage and, if it is thought

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possible that Crown consent may be required, a copy of the consultation paper should be sent to the Private Secretary to The Queen and/or the Private Secretary to The Prince of Wales, as appropriate. 4.130 The consent of The Queen must be obtained where a Bill affects, directly or by implication, the prerogative, hereditary revenues or the personal property or interests of the Crown. It is not required for provisions affecting The Queen’s servants (e.g. Ministers of the Crown or the Armed Forces) or property belonging to them as Her servants (e.g. the land or property of a Government Department, or of the Scottish Administration). A provision of a Bill affects prerogative if, for example, it alters the terms of appointments or abolishes offices which come within the prerogative. The hereditary revenues of the Crown are the revenues and lands held by The Queen in right of the Crown, e.g. ultimus haeres, treasure trove and bona vacantia. The Queen’s private estates, e.g. Balmoral, are the main examples of The Queen’s personal property and early attention is particularly required if the Queen’s private estates are to be affected. The instructions for a Bill should contain a clear statement as to whether or not any of the aforementioned rights or interests of the Crown are to be affected. 4.131 On the basis of a draft prepared by the Bill Team, the First Minister’s Private Secretary writes to Her Majesty’s Private Secretary enclosing 3 copies of the Bill and asking him or her to ascertain whether the provisions in the Bill which affect the Crown are acceptable to Her Majesty. (In exceptional circumstances, the letter can be sent by a senior official dealing with the Bill, provided that it explains the need to depart from normal practice.) This should be done as early as possible before the Bill is introduced since the Palace have stressed the need for time to be allowed for comments particularly where the Crown is involved in its personal as distinct from its official capacity. Her Majesty should always be given 14 days to respond to a request for consent. If, very exceptionally, consent has to be sought after a Bill has been introduced, it should be sought not less than 14 days before Stage 3. Consultation with the Palace need not wait until the Clerks have given their view on the need for Crown consent. 4.132 Where The Queen’s interest is affected, the letter to Her Majesty’s Private Secretary should begin with a sentence stating that the writer has been asked by the First Minister to approach the Private Secretary with a view to obtaining Her Majesty’s consent to the application of provisions of the Bill to Her Majesty’s private estates or hereditary revenues, or whatever the case may be. A brief summary of the contents of the Bill should be included, explaining why it is thought Her Majesty’s prerogative or interests are affected and, where appropriate, reference made to the particular sections affecting Her Majesty’s interest. The Queen’s Private Secretary will arrange for copies to be sent to other Royal Private Secretaries. A copy of the letter with the draft Bill should be sent to the Queen’s solicitors in Scotland and, where appropriate, to the Chief Executive and Second Commissioner to the Crown Estate Commissioners. If the draft Bill is not yet finalised at this point, the latest version should be sent in the interim and the final draft sent as soon as available. If, after consent has been obtained, the contents of the Bill affecting the rights of the Crown are altered materially, further consent may have to be sought. 4.133 The specific consent of The Prince of Wales, as Prince and Steward of Scotland, or as Duke of Cornwall, must also be obtained where a Bill affects his interest. The need to obtain his consent arises very infrequently since the lands in the “Principality of Scotland” have all been feued and the benefits to the Prince of Wales consist of income from feu duties. The Conveyancing and Feudal Reform (Scotland) Act 1970 was the first for about a century that required the Prince’s consent. A recent example in the UK Parliament is the House of Lords Act 1999. The same considerations apply as in relation to The Queen’s consent: the letter asking whether the relevant provisions are acceptable to The Prince of Wales is sent by the First Minister’s Private Secretary to the Private Secretary to The Prince of Wales.

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4.134 The Bill Team will receive, through the First Minister’s Private Office, a copy of the reply from the Palace (an example can be found here). Before the Introduction of the Bill the Parliamentary authorities should be advised by Counsel that Crown consent to the Bill has been obtained and that the consent requires to be signified in Parliament. 4.135 Once obtained, Crown consent requires to be signified by the Minister in charge (i.e. Cabinet Secretary) of the Bill during proceedings on the Bill at a meeting of the Parliament i.e. at a stage when the Bill is being considered by the whole Parliament i.e. either at Stage 1 or Stage 3 proceedings. This is done at Stage 1 only when the matter is central to the Bill in question, otherwise Stage 3 would be the appropriate time. Where the need for Crown consent arises during the passage of a Bill, as a result of an amendment, consent will have to be signified at Stage 3. The Cabinet Secretary must signify Crown consent at the beginning of the Stage 3 debate to comply with Standing Order Rule 9.11. In these circumstances it is expected that the Cabinet Secretary would signify Crown Consent during the opening speech. However, should it be necessary for a Minister to open the debate the bill team should contact the PS/Minister for Parliamentary Business to make arrangements with the Parliament so that the Presiding Officer will invite the Cabinet Secretary to deal with Crown Consent before the Stage 3 debate is opened. See, for example, the beginning of the Stage 3 debate on the Tobacco and Primary Medical Services (Scotland) Bill. 4.136 The form of signification of Queen’s consent and Prince’s consent is as follows: Queen’s consent only: “For the purposes of Rule 9.11 of the Standing Orders, I wish to advise the Parliament that Her Majesty, having been informed of the purport of the [ ] Bill, has consented to place Her Prerogative and interests, so far as they are affected by the Bill, at the disposal of the Parliament for the purposes of the Bill.” Queen’s and Prince’s consent: “For the purposes of Rule 9.11 of the Standing Orders, I wish to advise the Parliament that Her Majesty and The Prince of Wales, as Prince and Steward of Scotland, have been informed of the purport of the [ ] Bill. Her Majesty has consented to place Her Prerogative and both Her Majesty and The Prince of Wales have consented to place their interests, so far as they are affected by the Bill, at the disposal of the Parliament for the purposes of the Bill.” 4.137 It is unlikely that circumstances will arise where only Prince’s consent will be required. Bill Teams should also note that a reference to the Duke of Cornwall may have to be inserted in the above alternative letter either in place of or in addition to the Prince and Steward of Scotland if Duchy of Cornwall interests are being affected. Accompanying Documents Accompanying Documents 4.138 On Introduction a Bill must normally be accompanied by the following documents (Rule 9.3): • a written statement by the Presiding Officer indicating whether or not the provisions of the Bill are within the legislative competence of the Parliament; • a written statement by the member of the Scottish Government in charge of the Bill indicating whether or not the provisions of the Bill are within the legislative competence of the Parliament; • Explanatory Notes; • Financial Memorandum(part of the Explanatory Notes); • Policy Memorandum;

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• Auditor General’s Report (in some cases); and • Delegated Powers Memorandum (although not strictly an accompanying document, where a Memorandum is relevant it is required under Standing Orders to be submitted in draft and published immediately after introduction of the Bill). Together, the documents which must accompany a Bill are known as the “accompanying documents”. Further information on these documents is set out in the Billskill note. http://sa45eda/sgld/legal/Wiki%20Pages/Bills.aspx 4.140 Templates for these accompanying documents have been prepared by the Parliament for use by Bill Teams and are available, in MS Word, under the general templates section. Further advice can be obtained from OSPC. It is important that these templates are used and that the notes which accompany them are followed, otherwise Introduction of the Bill may be delayed if the Clerks have to reformat material. 4.141 The templates have proved to be a source of difficulties for many Bill Teams, with problems of PCs “crashing” being reported. Bill Teams are advised to save the documents regularly (and to use the “Save As” option from time to time to help limit the size of the document being stored). Along with the main templates, the Parliament has provided a blank template titled “AD Component.dot” which contains all the Styles used in the main template. Bill Teams may find it easiest to draft material using the AD Component template and then to paste it into the main template – this has the advantage of allowing several people to work on different parts of the document at the same time. It is vitally important to have a system for version control for the templates particularly because the documents are likely to get revised at various points by a number of different people. Note that although a separate template for a Financial Memorandum is available, it is intended for use with Member’s Bills (which only require a Financial Memorandum). For Government Bills, the Financial Memorandum appears as part of the Explanatory Notes template. Policy Memorandum 4.142 Rule 9.3.3 of Standing Orders requires that each Executive Bill on Introduction is accompanied by a “Policy Memorandum” which sets out: • the policy objectives of the Bill; • whether alternative ways of meeting those objectives were considered and, if so, why the approach taken in the Bill was adopted; • the consultation, if any, which was undertaken on those objectives and the ways of meeting them or on the detail of the Bill and a summary of the outcome of that consultation; and • an assessment of the effects, if any, of the Bill on equal opportunities, human rights, island communities, local government, sustainable development and any other matter which the Scottish Ministers consider relevant. Note that the sections on these issues should be cleared with the relevant interests in the Scottish Government, eg a section relating to island communities should be cleared with the relevant interests in the DG. 4.143 The lead Committee will consider and report on the Policy Memorandum at Stage 1. It is important to include consideration of issues relating to equal opportunities, human rights, communities, local government and sustainable development (see Policy Proofing at paragraph 4.9). Explanatory Notes

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4.144 Rule 9.3.2A requires that each Government Bill on Introduction is accompanied by Explanatory Notes which “summarise objectively what each of the provisions of the Bill does and give other information necessary or expedient to explain the effect of the Bill” . Inadequate Explanatory Notes can potentially delay the introduction of a Bill, particularly if the Parliamentary authorities take the view that they are so bad as not to comply with the requirements of Rule 9.3.3(b). The Explanatory Notes should be drafted by the Bill Team and cleared by Solicitors. Counsel should also be given an opportunity to comment on the draft Notes (after they have been cleared by the solicitor) in good time before they are finalised for submission to the Parliamentary authorities. The format of such notes vary depending on the size of the Bill, but normally include section by section analysis. Further guidance on the content of the Explanatory Notes is given at Annex 5. The temptation to simply paraphrase the provisions of the Bill should be avoided as far as possible. Where implementation of European legislation is to take the form of an Act of the Scottish Parliament, the transposition table should be part of the Explanatory Notes. Financial Memorandum 4.145 Rule 9.3.2 of Standing Orders requires that: “A Bill shall on introduction be accompanied by a Financial Memorandum which shall set out the best estimates of the administrative, compliance and other costs to which the provisions of the Bill would give rise, best estimates of the timescales over which such costs would be expected to arise, and an indication of the margins of uncertainty in such estimates. The Financial Memorandum must distinguish separately such costs as would fall upon- (a) the Scottish Administration; (b) local authorities; and (c) other bodies, individuals and businesses.” 4.146 Financial Memoranda are required so that the Parliament can have the best possible information on the costs (and savings) arising from proposed legislation. Estimates of costs and savings are therefore required regardless of budgetary considerations such as a budget already being in place. Estimates should be comprehensive and include sufficient detail on the basis of figures to enable the Parliament to come to a view on their robustness. Costings should be provided on both a gross and a net basis together with details of any anticipated savings on existing costs and any related income. Detailed guidance on the preparation and clearance of Financial Memoranda is included in . Finance Guidance Note 2009/01 The Bill Team is responsible for preparing the Memorandum in accordance with this guidance and for clearing it with the portfolio Finance Team before the draft Bill and accompanying documents are submitted to Ministers for approval. It is essential that the preparation of the Financial Memorandum should begin at a very early stage in the Bill process. Auditor General’s Report 4.147 An Auditor General’s report is required only where a Bill charges expenditure on the Scottish Consolidated Fund (as opposed to providing for expenditure to be payable out of the SCF). Such expenditure charged on the SCF is not subject to the annual Budget Act approval by the Parliament. If the Bill puts a charge on the Scottish Consolidated Fund (SCF), thereby bypassing Parliamentary approval for expenditure, it must be accompanied on Introduction by a report from the Auditor General for Scotland. Charges on the Fund are very unusual and proposals to put one in place should be treated with extreme caution; and any proposal to include a charge must be discussed with the Scottish Government Finance Directorate at an early stage. A charge requires money to be taken from the Fund without prior approval of the

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Parliament in a Budget Act or similar legislation. (An example would be the payment of judges’ salaries). Thus, by agreeing to a charge, the Parliament would be relinquishing its right to approve expenditure, which would have to be “top sliced” from the Parliament’s Budget. There is no “charge” if a Bill is to be funded from the SCF, but actual payment requires the authority of a Budget Act. The Bill Team should liaise with Finance to approach the Auditor General at least 3 weeks before Introduction. The Auditor General’s report should be sent direct to the Parliament and it is up to the Bill Team to ensure that it will be available in time. Delegated Powers Memorandum to the Subordinate Legislation Committee 4.148 Where a Government Bill confers a power to make subordinate legislation, a Memorandum on Delegated Powers must be lodged immediately after introduction of the Bill (rule 9.4A – see below). “Rule 9.4A Memorandum on delegated powers 4.149 Immediately after introducing an Executive Bill which contains any provision conferring power to make subordinate legislation, the member in charge shall lodge with the Clerk a memorandum setting out, in relation to each such provision of the Bill— (a) the person upon whom, or the body upon which, the power is conferred and the form in which the power is to be exercised; (b) why it is considered appropriate to delegate the power; and (c) the Parliamentary procedure (if any) to which the exercise of the power is to be subject, and why it was considered appropriate to make it subject to that procedure (or not to make it subject to any such procedure). The Clerk shall arrange for the memorandum to be published.” 4.150 The Memorandum must cover each of the points set out in the rule above. We have an agreement with the Parliament’s Legislation Team to provide them with a final draft Memorandum at least 1 week in advance of the Bill introduction date so that they can scrutinise for conformity with the provisions of rule 9.4A prior to publication and submission to the Subordinate Legislation Committee on the day of introduction. Please ensure that you build into your timetable sufficient time to prepare and clear the Memorandum with SGLD, OSPC and your Minister. OSPC will arrange for the Memorandum to be sent to the Head of the Legislation Team on behalf of the Clerk. Duncan Isles of the Constitutional Policy and Civic Participation Unit, should also be sent copies of draft and final versions of the Delegated Powers Memorandum. A copy should also be sent by the Bill Team to the Clerk to the Subordinate Legislation Committee. The memorandum will allow the Government to justify the need for taking powers and to explain its reasoning for the choice of parliamentary procedure, possibly avoiding any misunderstanding of the Government’s intentions, and ensure that the Subordinate Legislation Committee’s consideration of the Bill does not delay production of the lead Committee’s Stage 1 report. 4.151 Where the subordinate legislation is important to an understanding of the core policy, the lead Committee will usually wish to see draft Regulations, etc for scrutiny at Stage 1 if possible or at the very least seek a detailed explanation of the use to which the power will be put, especially if the powers are wide. Otherwise, the Committee will almost certainly wish to see draft instruments at Stage 2. Preparation of this material will need to be planned well in advance.

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4.152 Rule 9.6.2, which deals with Stage 1 of the legislative process, states that “Where a Bill contains provisions conferring powers to make subordinate legislation, the Subordinate Legislation Committee shall consider and report to the lead subject Committee on those provisions.” The Subordinate Legislation Committee may also consider and report to the lead Committee on any provision in such a Bill conferring other delegated powers. The list of powers which is sent to the Parliament in advance of Introduction of the Bill will assist in determining whether a reference to the Subordinate Legislation Committee is required – see paragraph 5.9. 4.153 The term “subordinate legislation” includes instruments other than statutory instruments, so includes instruments such as directions and guidance which are of legislative quality (which is a matter on which the solicitor or Counsel can advise). The memorandum to the Subordinate Legislation Committee should include such powers explaining in particular why the instrument is not to be made by Statutory Instrument and whether it is to be subject to parliamentary procedure. Not all powers to do things conferred by a Bill will be “subordinate legislation”. Some powers of direction, for example, are not of a legislative quality. The letter sent by Counsel to the Parliamentary authorities 3 weeks before Introduction (see paragraph 5.9) will have sought their agreement about which powers constitute subordinate legislation, and are therefore to be covered in the memorandum to the Subordinate Legislation Committee. 4.154 The form of the memorandum will vary depending on the nature of the Bill and the scope of the subordinate legislation powers conferred by it. But the memorandum must, in relation to each power, cover each of the matters set out in paragraphs (a) to (c) of Rule 9.4A.1 as set out above. So it is suggested that a separate entry should be included for each power covering those matters. The following matters should also be considered as appropriate: • the expected use of the power (e.g. are early drafts available?); • the Parliamentary procedure; • detailed scope of power, e.g. power to modify enactments, power to make incidental/consequential/transitional provision, power to delegate functions, power to create offences, power to have retrospective effect, power to oust jurisdiction of courts; • in the case of powers to make local SSIs, which are generally not published, an indication should be given of how they are to be brought to the knowledge of those affected by them, or whether despite being local instruments they are to be published by the Queen’s Printer for Scotland (as permitted by article 7(2)(b) of the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 (1999 No 1096); and • what consultation on subordinate legislation proposals has taken place. 4.155 Where the subordinate legislation amends primary legislation the Government has agreed that such powers should normally be subject to affirmative procedure. There may however be occasions on which this would be unnecessarily burdensome or restrictive. In such circumstances the Government has agreed it would be appropriate that it should be required to provide an explanation in the memorandum for the position adopted. 4.156 Examples of Memoranda, and correspondence between the Government and the Subordinate Legislation Committee can be found in the Appendices to Stage 1 Reports, available on the Parliament's website under the appropriate lead subject committee. Your solicitor will also be able to provide guidance on the content of the memo. 4.157 Where the Bill is amended at Stage 2 so as to insert or substantially alter provisions conferring powers to make subordinate legislation, then a revised or supplementary Memorandum will be required for consideration by the Subordinate Legislation Committee in advance of Stage 3 (see paragraph 6.72).

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4.158 Rule 9.7.9 provides that, if the Bill is amended at Stage 2 so as to “insert or substantially alter provisions conferring powers to make subordinate legislation”, then the Bill is to be referred back to the Subordinate Legislation Committee for it to consider and report on those amendments – even if the amendments reflect recommendations of the Subordinate Legislation Committee at an earlier stage. Further details are provided at paragraph 6.72 4.159 It is also very helpful to alert the Subordinate Legislation Committee Convener and Clerk, by means of a letter from the lead Bill Minister to the Convener with a copy to the Clerk, to relevant amendments proposed at Stage 3, whether the amendments are entirely new or are intended to reverse amendments made at Stage 2.

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Chapter 5 PREPARATION FOR INTRODUCTION Bill Management Meetings 5.1 A Bill will have two Bill management meetings (also known as 'passporting meetings'): an Officials' Bill Management Meeting and a Ministerial Bill Management Meeting. 5.2 The Officials' meeting is a good preparation for the Ministerial Meeting. There should be a frank exchange of issues and concerns. Specific people should be invited and the Bill team will be expected to give a short presentation on the Bill and present a paper. The Bill team, the Solicitors and the draftsmen (Counsel) will be questioned by other officials based on the information in the paper. It's better to be completely open in the paper and to get a grilling as everyone is then apprised of any issues and can suggest solutions. Speak to the Legislation and Parliamentary Liaison team for more details on the format, who to invite, etc. 5.3 A Ministerial Bill Management meeting is mandatory before a Bill can be formally announced or introduced to Parliament. This meeting is to allow the Lord Advocate, Solicitor General and the Minister for Parliamentary Business to assess in discussion with the lead Minister the Bill’s readiness and any significant legal issues. The Legislation and Parliamentary Liaison Team will invite the Bill Team Leader to arrange the meeting. The meeting is usually arranged for a date after SGLD has submitted most instructions to OSPC by which time any problem areas are likely to have been identified. The Minister for Parliamentary Business will normally chair the meeting. It is important to ensure close liaison with SGLD and with OSPC and with Legislation and Parliamentary Liaison Team who will brief the Minister for Parliamentary Business. The lead Minister should make a short presentation (prepared by the Bill Team) to start off the discussion. The Bill Team should take a note of the meeting and follow up on any action points. Occasionally, it may be necessary to have more than one such meeting. Further details are available from the Legislation and Parliamentary Liaison Team. You might also want to refer to the Billskill note on passporting meetings. BILL MANAGEMENT MEETING GUIDANCE 5.4 In order to assist in the management of the legislative programme, every Bill is required to undergo a Bill Management process before it is allocated a firm place in the legislative programme. This process involves the lead Minister, the Minister for Parliamentary Business and the Lord Advocate, and enables them to carry out a clear assessment of issues such as: · policy readiness

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· the scale and scope of the Bill · competence, ECHR and other legal issues · environmental issues · regulatory impact assessment · equality compliance issues. · complexity and sensitivity · staffing arrangements for the Bill Team · financial implications · Explanatory Notes – timeous preparation and fit for purpose · timetable · Associated subordinate or consequential legislation (e.g. Regulations or Scotland Act Orders) · any Parliamentary or political issues which require particular attention, and · what has been done (or is planned) to engage Government backbenchers. · media plan in preparation, engagement with interest groups/stakeholders. 5.5 The general aim is that the Ministers for Parliamentary Business, the Lord Advocate and the Solicitor General should discuss these issues with the lead Minister after Cabinet has agreed each year's legislative programme in principle, but before detailed work has begun on drafting the Bill. 5.6 The format of the meeting should be along standard lines and the following points should be noted: 5.7 The meeting will normally be chaired by the Minister for Parliamentary Business. A presentation should be given by the lead Minister for the Bill. A short (no more than 2 pages) written brief should be circulated at least 4 working days in advance of the meeting along with an agenda using the attached template. The whole event should last no more than 1 hour. The Bill Team should dedicate an official to specifically produce an action point note of the meeting, cleared with Legislation and Parliamentary Liaison Team, for circulation to all attendees. If possible this should be done within 5 days of the meeting. Annexed is a list of those who should be invited to the Bill Management meeting.

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5.8 Legislation and Parliamentary Liaison Team will advise Bill Teams of optimum dates for the meeting according to your Bill’s place in the legislative programme. 5.9 The following is a list of people who should be invited to the Bill Management meeting: Lead Minister(s) Lord Advocate Solicitor General Minister for Parliamentary Business Murray Sinclair, Solicitor Colin Wilson, First Scottish Parliamentary Counsel Colin Troup, Legal Secretariat to the Lord Advocate Bill Team (including SGLD and OSPC contacts) Special Advisers 5.10 Constitution and Parliamentary Liaison Team Secretariat (Elspeth Macdonald, Ian Turner, Steven MacGregor and Michael Abell) Note: It may not be necessary for all of the above to attend, but they should all be invited. It is important however that at least the Lord Advocate or Solicitor General and the Minister for Parliamentary Business attend. BILL MANAGEMENT MEETING WORKING TITLE OF BILL DATE AND TIME AGENDA Introduction 1. Presentation by Name of Minister covering:- · Main scope and content of the Bill · Policy Readiness · Timetabling

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· Parliamentary handling Discussion 2. · policy readiness · the scale and scope of the Bill · competence, ECHR and other legal issues · environmental issues · regulatory impact assessment · equality compliance issues. · complexity and sensitivity · staffing arrangements for the Bill Team · financial implications · Explanatory Notes – timeous preparation and fit for purpose · timetable · Associated subordinate or consequential legislation (e.g. Regulations or Scotland Act Orders) · any Parliamentary or political issues which require particular attention, and · what has been done (or is planned) to engage Government backbenchers. · media plan in preparation, engagement with interest groups/stakeholders. Conclusion 3. Follow up action and next steps Ministerial Approval to Final Draft Bill and Introduction First Minister 5.11 The approval of the First Minister must be obtained before the draft Bill and accompanying documents are submitted to the Presiding Officer for 3-week pre-introduction consideration. OSPC will arrange for submission of the documents to the Presiding Officer following First Minister approval.

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5.12 If the final draft of the Bill departs in some significant way from the policy previously agreed by Cabinet, CSCL approval must first be obtained. Any major changes to policy may require full Cabinet clearance. CSCL Secretariat will be happy to advise. Minister for Parliamentary Business 5.13 After the draft Bill has been submitted to the Presiding Officer for its 3-week pre-introduction consideration, the formal agreement of the Minister for Parliamentary Business should be sought for the formal introduction of the Bill to the Parliament 10 days before introduction. 5.14 This agreement is obtained by a minute from the Minister in charge of the Bill to the Minister for Parliamentary Business, copied to the First Minister, Deputy First Minister, Lord Advocate and the Legislation and Parliamentary Liaison Team. The minute should also be copied to any other Ministers with a portfolio interest in the Bill. It should be sent to the Minister for Parliamentary Business 10 working days before the planned date of Introduction of the Bill. To help with preparation of the minute, a checklist of requirements which should be covered can be found [Checklist for Introduction]. A recent example of a minute seeking approval to introduce can be found. 5.15 The minute should contain an assessment of the state of preparedness of the Bill and the likelihood of the need for Government amendments to be made during the Bill’s passage. It should also include confirmation that the Bill policy remains consistent with that approved by Cabinet; that all the necessary documents to accompany the Bill have been prepared, including the Ministerial statement on legislative competence, and that the Bill is in a state to be submitted to the Presiding Officer, or has already been submitted to the Presiding Officer, to enable him to prepare his statement on whether the Bill is within the legislative competence of the Parliament. The minute should also confirm whether there is a need for a Financial Resolution. 5.16 The minute should set out the recommendation as to which Committee should be designated as the lead Committee for the Bill and highlight those subject Committees which will have a substantial interest in the Bill. It should provide an assessment of the level of evidence expected to be taken by the lead Committee and what work the Committee has already undertaken (if any) on the Bill. This information is required to assist the Minister for Parliamentary Business’ Office in considering the likely time required for Stage 1. It should be borne in mind that where there is a likelihood that secondary subject committees will take evidence it could lengthen the time taken for Stage 1. 3-Week Pre-Introduction Consideration (Submission to the Presiding Officer) 5.17 Section 31(2) of the Scotland Act 1998 requires the Presiding Officer, on or before the Introduction of a Bill, to decide whether or not in his view the provisions of

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the Bill would be within the legislative competence of the Parliament (Parliamentary Standing Orders Rule 9.3.1) 5.18 Formal arrangements have been made with the Parliament for the draft Bill and accompanying documents to be submitted in confidence by OSPC to the Head of Chamber Office 3 weeks ahead of the intended introduction date. OSPC aim to alert the Directorate of Legal Services around 2 weeks ahead of the 3-week period. The draft Delegated Powers Memorandum should be submitted 1 week in advance of introduction of the Bill. The 3 week period is the subject of a memorandum of understanding between the Government and the Parliament which should be referred to for more detail about the expectations that apply on both sides. 5.19 Where the 3 week period falls wholly or partially in recess, OSPC will consider with the Parliament whether the pre-introduction period should be extended. At the current time it is unlikely that periods of recess will count towards the 3-week period. 5.20 Along with the draft Bill, OSPC will send to the Parliament, in confidence –

• a note by OSPC on the scope of the Bill, financial matters, Crown consent, long title and other matters concerning its Parliamentary handling;

• a note listing the provisions of the Bill which confer powers to make subordinate legislation Responsibility for preparing the list of provisions lies with the Bill Team. However, this can change due to the circumstances of a particular Bill if the Bill Team and OSPC agree some alternative method of proceeding;

• the latest draft of the Explanatory Notes, Financial Memorandum and Policy Memorandum; and

• the SGLD note setting out the Government’s views upon which provisions in the Bill, if any, may give rise to a devolution issue, together with an explanation as to why it is thought that those provisions would be within the legislative competence of the Parliament. This will be similar to the note which is referred to the Scottish Law Officers in terms of paragraph 5.28. This note is being sent to assist the Directorate of Legal Services in giving independent advice to the Presiding Officer as to whether the Bill is within competence and will enable the Presiding Officer to reach a view which is informed by the Government’s reasoning but which does not simply rely on it.

5.21 Experience suggests that the 3 week period has caused some confusion and has sometimes resulted in an unnecessary loss of drafting time, and therefore the need for additional amendments at Stage 2. The Parliament insists that the text of the Bill in respect of which the Presiding Officer gives his statement on legislative competence must, apart from typographical changes, be identical with that of the Bill as handed in for Introduction. So, once the minute on legislative competence has gone from the Directorate of Legal Services to the Presiding Officer, any change to the Bill’s text will necessitate a further submission and may delay the issue of the Presiding Officer's statement, and hence Introduction.

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5.22 In practice it is often possible to continue to make changes to the Bill up to the point where the Directorate of Legal Services start work on the Bill, at which point an up to date print of the Bill is forwarded. If any of the changes affect the Government's note on legislative competence, a further note is to be supplied. 5.23 In summary:

• Ideally, no substantial changes to the text of the Bill should be made during the 3-week period (“substantial” meaning other than minor corrections of style, structure, punctuation etc);

• Normally, no amendments are to be made thereafter (apart from typographic changes and punctuation); and

• If, exceptionally, the need for some vital amendment is identified in week 3, OSPC will consult the Parliament as to whether making the amendment would delay the Presiding Officer’s statement beyond the proposed introduction date; Ministers can then decide on the basis of their response whether to proceed with it.

5.24 The Parliament’s Director of Legal Services should, in turn, advise OSPC whether there are any provisions in the Bill which cause concern. This should be done not later than one week before the proposed Introduction date. 5.25 There may be circumstances when it would be helpful to provide copies of the draft Bill in advance during the 3 week period when it is being considered by the Parliament. The arrangements made with the Parliament note that the Government will respect the Parliament’s exclusive right to publish Bills and accompanying documents. A draft Bill in the near final form in which it has been submitted for the 3-Week pre-introduction consideration will not therefore be published or made publicly available by the Government other than in exceptional circumstances. Where such circumstances apply, the Legislation and Parliamentary Liaison Team should be given an opportunity to comment. In all cases, the advance approval of the Minister for Parliamentary Business must be obtained, and the Legislation and Parliamentary Liaison Team should be copied into drafts. This does not affect the Government’s right to publish drafts ahead of a Bill being ‘3-weeked’ Submission of Drafts 5.26 Once Ministers have cleared drafts of the Explanatory Notes, Financial Memorandum and Policy Memorandum these will be forwarded by Counsel to the Parliamentary authorities at least 3 weeks before Introduction of the Bill. The documents should therefore be drafted to meet this timescale. It is possible that the Clerks will offer comments on whether they consider the draft Explanatory Notes to meet the requirements of Rule 9.3.2A, particularly if they consider that the draft is not objective. Where such comments are offered, Bill Teams should consider them (in conjunction with their Solicitor and Counsel) with a view to reaching agreement with the Parliamentary authorities. It is possible that the Clerks may refuse to allow Introduction of a Bill if they object to the documents.

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5.27 Occasionally it may be that the documents are referred to in litigation, in the same way that the Official Report is under the Pepper v Hart rule (see paragraph 5.42). The Policy Memorandum has also been relied upon by the courts to assist in ascertaining the intention behind the legislation and to enable them to ensure that the legislation was construed within competence (e.g., Flynn & Ors v HMA – Privy Council 18 March 2004 in respect of the Convention Rights Compliance (Scotland) Act 2001) So it will be important for those producing the Notes and Policy Memorandum to make sure that the notes do not mislead; and not to include material which seems to take the law further than the Bill or Act does. Referral to the Scottish Law Officers 5.28 Section 31(1) of the Scotland Act 1998 requires a member of the Scottish Government in charge of the Bill, on or before the introduction of the Bill, to give a certificate that, in his view, the provisions of the Bill would be within the legislative competence of the Parliament. 5.29 Before such a certificate is given, the Scottish Law Officers should be asked to confirm that the provisions of the Bill would be within the legislative competence of the Parliament. 5.30 This reference will be made to the Scottish Law Officers by the instructing solicitor in practice shortly after the Bill has been submitted to the Parliamentary authorities. so as to allow adequate time for the Scottish Law Officers to consider the matter and any adjustments to be made to the Bill. SGLD will usually request that the Law Officers will be in a position to give their opinion at least one week before the proposed date of introduction of the Bill. Any significant amendments made to the Bill during that time will be drawn to their attention by SGLD. 5.31 It is, however, stressed that what is being sought from the Scottish Law Officers at this late stage is merely confirmation of the legal view previously taken that the Bill is within the legislative competence of the Parliament. If there is any question as to whether a provision in the Bill is within that competence, then the opinion of the Scottish Law Officers should have been sought at a much earlier stage during the preparation of the Bill. UK Government Departments and UK Law Officers 5.32 Bill Teams should keep the relevant UK Government Department(s) informed about the proposals in their Bill, and send them copies of the Bill during its preparation in line with the Memorandum of Understanding between the UK Government and the Scottish Ministers and Concordats. (See paragraph 5.46 on the procedures for copying Bills to UK Government departments). 5.33 If there is likely to be a devolution issue raised by the Bill, the instructing solicitor should normally raise this with his counterpart in the relevant UK Government Department and, if questions persist, it may be necessary for them to seek the opinion of the Scottish Law Officers.

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5.34 Assuming these discussions have taken place Bill Teams should therefore be aware of whether there is any risk of the UK Government taking the view that the Bill is outside competence and making a reference after the Bill has been passed. 5.35 In cases where it is essential for the Bill to come into operation quickly (e.g. Emergency Bills), it may be agreed with the relevant UK Government Department and the UK Law Officers that they would consider the provisions of the Bill during its passage so that, immediately after the passing of the Bill –

• the UK Law Officers might be in a position to notify the Presiding Officer in terms of section 33(3) of the Scotland Act that they do not intend to refer the Bill to the JCPC under that section; and

• the Secretary of State might be in a position to notify the Presiding Officer in terms of section 35(4) of that Act that he does not intend to make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

5.36 Such an approach should be approved in advance by Cabinet when agreeing to the proposal for the Emergency Bill, or subsequently by the Cabinet Sub-Committee on Legislation. If such notification is given, this would then enable the Presiding Officer to submit the Bill to the Queen for Royal Assent without waiting the four week period after the passing of the Bill before he can submit the Bill for Royal Assent in terms of section 32 of the Scotland Act. However, this mechanism should only be used where there is genuine urgency – the UK Government should otherwise be allowed the full 4 week period. 5.37 The Scottish Government is required to notify Bills to the UK Government both when they are introduced and when they are passed by the Parliament. Further information is set out in Paragraph 5.46. Signing of Bill 5.38 Rule 9.2.4 requires that a Bill must, before introduction, be signed by the member introducing it. The rule also permits the Bill to be signed at this stage by any other member or members who support the Bill. The Lord Advocate and the Solicitor General may also sign as a supporter of the Bill. It is not possible for officials to sign on behalf of the Minister. 5.39 A Government Bill should normally be introduced by the member of the Scottish Government (i.e. Cabinet Minister) with policy responsibility for the subject matter of the Bill. Accordingly, the Cabinet Secretary should sign as the member introducing the Bill. Normally the deputy (or one of the deputies where the Minister has more than one) of the Minister should also sign as a supporter. That deputy should normally also be designated as an additional “member in charge” under Rule 9.2A.1(b). The Bill should also be signed by any other Cabinet Secretary or Minister who has a substantial policy interest in the subject-matter of the Bill. Where it is expected that a Bill will have an effect across the Scottish Government (e.g. the annual Budget Bill), the support of the First Minister, and the Minister for Parliamentary Business should be sought.

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5.40 Members of the Parliament who are not members of the Government should not normally be invited to sign the Bill to indicate their approval, unless there is a particular need to demonstrate cross-party support. Where Bill Teams consider that this would be appropriate, they must consult the Minister for Parliamentary Business’ Office before proceeding. 5.41 The Bill should not be signed by the Cabinet Secretary until it is in final form. OSPC will notify the Bill Team when the Bill is in final form and provide a copy for signature. It is then for the Bill Team to get the Bill to the relevant Ministers for signature and to return it to OSPC. The time available for signature, and availability of Ministers, may limit the number of signatures which can be collected – lack of a signature (other than that of the member in charge) should not delay introduction. 5.42 Where there is a change of Cabinet Secretary, provided the Cabinet Secretary subsequently appointed assumes responsibility for the subject matter of the Bill, no further action is required. Where the junior Minister changes, it will be necessary to formally designate the new junior Minister as the member-in-charge. A simple minute of designation signed by the lead Minister should be provided to OSPC for onward transmission to the Parliament. (Rule 9.2A of the Parliament’s Standing Orders refers.) Lodging Accompanying Documents 5.43 The Explanatory Notes, Financial Memorandum, Policy Memorandum and the Minister’s statement on legislative competence are lodged by OSPC with the Parliament (see paragraph 4.138). 5.44 Although Rule 9.3.6 of the Parliament’s Standing Orders provides for a Bill to be introduced without one or more of its accompanying documents (subject to the agreement of Parliament), this mechanism should not be used by the Government except in extreme circumstances and only with the Minister for Parliamentary Business’ agreement. Printing/Availability of Accompanying Documents 5.45 Rule 9.4 requires the Clerk of the Parliament to arrange for the Bill and its accompanying documents to be printed and published after introduction. The documents all have Parliamentary copyright. The published Bill and accompanying documents are usually publicly available on the Parliament’s website* about 8 am on the morning after introduction. Bill Teams may find it easier and quicker to download Bills etc than to order hard copies. The terms of copyright waivers for this material should be checked.

http://www.scottish.parliament.uk/business/bills/billsInProgress/index.htm

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Copying Bills to UK Government Department Contacts 5.46 Under the terms of paragraph 5.7 to 5.9 of the Guidance Note on Common Working Arrangements agreed between the UK Government and Scottish Government1, the Scottish Government is required to notify Bills to the UK Government both when they are introduced and when they are passed by the Parliament. It has also been agreed that Bills will be notified to UK Government departments after Stage 2 if they have been amended. 5.47 The purpose in copying the Bills at these stages is to ensure that the UK Government is in a position to determine whether they need to make use of the procedures set out in the Scotland Act which allow the Law Officers or Secretary of State in certain circumstances to prevent a Bill from being submitted for Royal Assent and for a reference to be made to the Supreme Court to rule on legislative competence. 5.48 At each landmark stage of the Bill (i.e. Introduction, Stage 2, when passed and on receipt of Royal Assent), Bill Teams should notify Legislation and Parliamentary Liaison Team by e-mail also including contact details of the Bill Team Leader. The Legislation and Parliamentary Liaison Team then notifies UK Government departments and the Scotland Office and directs them to the Parliament website. 5.49 The above rules also apply to Private Bills, Member’s Bills and Committee Bills. A “Bill Team” will normally be identified within the Government to take responsibility for work on such a Bill. In the absence of an identified Bill Team. Reprinting of Acts etc Relevant to a Bill 5.50 Bills frequently amend, replace or refer to earlier legislation, and the effect of the Bill is impossible for the reader to understand without reference to the text of that earlier legislation. For the benefit of Bill Teams, Ministers and members of the Parliament, Bill Teams may find it useful to create up-to-date versions of the relevant parts of the earlier legislation. Bill Teams may find that the easiest way to do this is to use the legislation.gov.uk website. 5.51 If such up-to-date texts are prepared, the Bill Team should send a copy to the Clerk of the lead Committee for onward distribution to interested members. Copies should also be placed in the Scottish Parliament Information Centre (SPICe). 5.52 Section 45 of the Copyright, Designs and Patents Act 1988 (as amended by paragraph 25 of Schedule 8 to the Scotland Act 1998) provides some exemption from copyright law for things done for the purpose of parliamentary proceedings. The terms of the copyright waivers offered by the Queen’s Printer and Queen’s Printer for Scotland in respect of texts of primary and secondary legislation should be checked. (if in doubt, the terms can be checked by e-mailing the Queen’s Printer for Scotland) – although use in value-added contexts is generally permitted..

1 This document is available at http://www.scotland.gov.uk/cwa/

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http://www.opsi.gov.uk/advice/crown-copyright/copyright-guidance/index.htm Press and Public Relations 5.53 Although the policy content of the Bill will have been open to public and media scrutiny during the pre-legislative stage, the introduction of the Bill is likely to lead to renewed interest and provides an opportunity for the Government to present itself positively. You should therefore be prepared for both press and public interest and in the spirit of the FOISA be prepared to put in the public domain as much information about the Bill as possible. The Bill Team, in conjunction with Press Office and the Minister’s Private Office, should devise a press strategy for the Bill and this should be discussed at the Ministerial Bill Management Meeting. Likely elements include:

• For introduction, a news release and, as appropriate, a launch event;

• During Parliamentary stages: news releases to coincide with significant debates or conclusion of Stages; briefing of journalists by Minister to explain Government amendments and attitude to other amendments. Consideration should also be given to any further information that can be provided, for example any releasable correspondence between the Minister and main stakeholder groups, reasons for changes between the draft Bill and the Bill as introduced, online updates detailing progress and changes made at Stage, links to relevant excerpts from the Official Report;

• Royal Assent and publication of the Act; news release; photo opportunity with published Act;

• During the implementation phase, regular updates on implementation, FAQs on process etc, useful contacts etc.

Points to Note:

• The full News Release and Media briefing should not be issued or take place until the Bill has actually been published – usually the morning after introduction.

• Copies of the Bill will not become available to the Press until the morning following introduction.

Use of the Official Report in Construing Statute (“Pepper v Hart”) 5.54 Following the decision of the House of Lords (in Pepper v Hart [1993] All ER 42) the courts may, in certain circumstances, look to Parliamentary material as well as to the text of the statute itself when construing legislation. The implication of Pepper v Hart is that courts may do this if three conditions are satisfied:

• the legislation is ambiguous or leads to an absurdity;

• the material relied upon consists of a statement by a Minister or other promoter of the Bill, together with such other Parliamentary material as was necessary to understand that statement; and

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• the statements relied upon are themselves clear. 5.55 We have already had experience of the Court of Session examining the Official Report of the Scottish Parliament in the case of Anderson, Docherty and Reid v the Scottish Ministers and the Advocate General for Scotland. This case challenged, on ECHR grounds, the first Act of the Scottish Parliament, the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. Since clarity and the avoidance of ambiguity are key objects in the drafting of legislation, the procedure adopted in Pepper v Hart should remain very much the exception rather than the rule. Nevertheless, Bill Teams should bear this possibility in mind and exercise great care in drafting material for use by Ministers which may find its way onto the record of debates in the Parliament (including Committees) and, if necessary, find a satisfactory method for correcting any significant mistakes or ambiguities which appear in such records. In order to achieve this the following steps should be followed:

• all speeches and speaking notes should be reviewed by the Solicitor (and if necessary Counsel) for possible influence on interpretation;

• the solicitor should always attend relevant Parliamentary proceedings on the Bill as part of the Minister’s official support (i.e. Stages 2 and 3);

• officials should take care in providing impromptu advice on interpretation in order to assist a Minister to answer a point raised during proceedings on a Bill. Where possible Ministers might be invited to offer to reflect on a point and reply on a future occasion;

• the Bill Team and Solicitor should always review the Official Report record of Ministers’ contributions to a debate and consider whether there is any inaccuracy or other hostage to fortune;

• ambiguities or inaccuracies in the wording of legislation should always be put right by amendments where this is possible;

• references to the Pepper v Hart judgement in Ministerial statements are best avoided as this could be taken to imply that the provision of the Bill being debated is indeed ambiguous;

• if it is considered that the Official Report cannot be allowed to stand, Ministers should be advised accordingly and asked urgently to consider what action should be taken. Ministers will need to make a judgement, in the light of the official and legal advice, on whether and how to clarify the record. Factors influencing this judgement might include the possible effect on interpretation and implementation of the legislation, the desirability of precision in the particular circumstances of the case, and the political and handling implications of re-opening issues which may be controversial. The Minister for Parliamentary Business’ Office and Counsel should always be consulted about a proposal to correct the official record during proceedings on the Bill;

• where it is decided that the record needs to be corrected during the passage of the Bill it is desirable that it should be done at a time and in such a way that it would be clear to the courts that the Parliament was aware of the matter before passing the Bill. The approach adopted may vary depending on the importance of the matter, the stage which the Bill has reached and the nature of the proceedings during which it is proposed that the correction should be

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made. The correction should contain a date and column reference to the Official Report record of the original statement;

• where a Ministerial correction is made in this way it would be helpful if a cross-reference could be inserted at the Official Report record of the original statement. This may be possible if the correction is issued in time to be reflected in the bound volume. This should be discussed with the Official Report staff;

• where a ministerial correction is made after the Bill has been passed by the Parliament, it is unlikely that the courts will take it into account. This makes accuracy particularly important during the later stages of Bills;

• although letters to individual members will not be an effective way of correcting statements in the Parliament about the meaning of Bill provisions, they may still be appropriate as a way of giving or correcting factual information or of answering points raised in debate.

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Chapter 6 PARLIAMENTARY STAGES OF A BILL Introduction 6.1 The parliamentary passage of a standard Scottish Government Bill has three main stages:

• Stage 1 – the Bill’s general principles are scrutinised by the appropriate

committee of the Parliament (“the lead Committee”) and then debated and voted upon in a plenary session of the full Parliament

• Stage 2 – the lead Committee considers amendments to the Bill • Stage 3 – the plenary considers amendments to the Bill and then votes on

whether to pass or reject the Bill The Parliament has produced guidance on the passage of Scottish Government Bills and this can be found here – http://www.scottish.parliament.uk/business/bills/billguidance/gpb-c.htm Bill Teams will also wish to familiarise themselves with the Parliament’s Standing Orders, which set out the basic rules which all Scottish Government Bills must adhere to. The Standing Orders will be referred to throughout this chapter, and they can be found here – http://www.scottish.parliament.uk/business/so/sto-4.htm#9 Designation of lead Committee 6.2 The first step following introduction of a Bill is usually for the Parliamentary Bureau to decide which committee of the Parliament will be designated as the lead Committee once the Bill is introduced. Bill Teams will be asked to express a view on which Committee is most appropriate to be designated as lead Committee (this will have been addressed on a preliminary basis in the Agreement to Introduce minute which is submitted to the Minister for Parliamentary Business before introduction), and the Scottish Government’s position will be represented at the Bureau by the Minister for Parliamentary Business.

Contact with the lead Committee before formal introduction 6.3 Bill Teams should make early contact with the relevant lead Committee Clerk. This will ideally be done before formal introduction of the Bill but should not normally be done until after the intention to introduce a Bill has been set out in the First Minister’s statement on the legislative programme. This early meeting should enable both sides to establish good relations and for the Clerk in particular to discuss handling, etc. arrangements for the Bill. Bill Teams may also find it useful to have introductory meetings (or a phone call) with the clerks to the Finance and Subordinate Legislation Committees.

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6.4 The lead Committee will often request an informal meeting with the Bill Team and/or the Minister in charge of the Bill before they begin their formal Stage 1 scrutiny. These off-the-record meetings enable the Committee to be briefed in a neutral setting and provide an opportunity for the Committee to gain an understanding of the purpose and effect of the Bill and its provisions. The meeting is also likely to act as an early indicator of any initial concerns the Committee may have. Bill Teams should ensure their Minister is content before agreeing to an informal meeting with the committee.

Parliamentary ‘days’ 6.5 In relation to the Parliamentary process, reference to ‘days’ means ‘sitting days’ (i.e. days when the Office of the Clerk is open) and can generally be construed as ‘working days’ but excludes recess and certain public and privilege holidays. Note that the Parliament does not observe the same public and privilege holidays as the Government, e.g. it has a St Andrew’s Day holiday on the Friday closest to 30 November. The term ‘clear days’ means a period of whole days which excludes the day on which counting started and the day on which the event is to take place.

Access to the Parliament 6.6 The Bill Team should ensure that Scottish Parliament security passes have been arranged for members of the Bill Team well in advance of the Bill introduction. The relevant form can be found through the following link:

http://intranet/InExec/SEAndMe/Secure/Physical/Parliament 6.7 Separate passes for access to the Chamber and/or Committee Rooms will also be required. The Parliamentary Clerk’s Office will assist with access to the Chamber – see guidance at:

http://intranet/content/corporate/guidance/parliament/box-passes.pdf.

They will arrange passes for officials who require entry to the officials’ table for Chamber business, by means of creating a “boxlist” for the security office to make up official passes. Two tables have seating for up to 9 people and all requests for entry to the box must be with Parly Clerk’s office by 2 pm the day before entry is required. Passes are then collected by officials from the desk at the staff entrance to the Parliament 10 minutes before the debate is due to start. All requests should be e-mailed to the “Parly Clerk Scotland” e-mail box and should include the name of the official, date of entry, debate title and debate time. The Parliamentary Clerk’s Office does not issue passes for the public gallery: this is done by the Scottish Parliament Public Information Office (ext. 85411). 6.8 Attendance at Committee meetings should be agreed in advance with the relevant Clerk to whom the full list of names should be given. The numbers of officials attending should be kept to the minimum necessary. Arrangements should be made for any Government staff who do not have a Parliament security pass to be met and signed-in. Staff attending as observers will require to collect their passes

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from the desk at the Public Entrance. See Protocol for Access Arrangements available on the intranet at:

http://intranet/content/corporate/guidance/parliament/contacts/Executive_Access_Arrangements.pdf

See also Guidance on Executive Evidence and Responses to Committees on the intranet at:

http://intranet/content/corporate/guidance/parliament/erc/erc-00.asp Stage 1 6.9 When preparing the timetable at least 12 weeks (excluding recess periods) should be allowed for the Stage 1 process for a medium-size Bill.

6.10 Rule 9.6 of the Parliament’s Standing Orders deals with Stage 1 of the Bill’s progress through Parliament. The key elements of Stage 1 are:

• Referral of the Bill to its lead Committee by the Parliamentary Bureau with a

date by which the Committee should report back to the chamber • The issuing of a ‘call for evidence’ by the lead Committee which invites views

on the Bill from stakeholders • Oral evidence sessions involving officials, stakeholders and the lead Minister • Scrutiny of the Bill for their interests by the Finance Committee and the

Subordinate Legislation Committee • The development of a Stage 1 Report on the general principles of the Bill by

the lead Committee • A debate and vote by the plenary on whether the Bill should proceed to Stage

2 Bill Teams should check the committee pages, and particularly the agenda for future meetings, of the Parliament’s website on a regular basis to keep on top of when the lead committee, Finance Committee and Subordinate Legislation Committee are discussing their Bill. Call for evidence The first step for a lead committee is usually for it to issue a ‘call for evidence’. This is effectively a mini-public consultation by the lead committee when it seeks written evidence on the general principles of the Bill. The lead committee will normally say that it is interested to hear the views of organisations and individuals on the proposals contained in the Bill and their likely impact. Recent examples of calls for evidence can be found here:

• http://www.scottish.parliament.uk/s3/committees/lgc/inquiries/PrivateHousing/index.htm

• http://www.scottish.parliament.uk/s3/committees/lgc/inquiries/LocalElections/index.htm

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Responses to the call for evidence will be published on the Scottish Parliament’s website. Bill Teams will wish to monitor these responses as they will provide a clear indication of the approach which key stakeholders are likely to take when they come to give oral evidence. Evidence sessions 6.11 In considering the general principles of the Bill lead Committees tend to hold a series of meetings at Stage 1, inviting written and oral evidence from selected public bodies and interest groups. The bodies invited to give evidence are usually key stakeholders, and the Clerk is likely to ask for the Bill Team’s view on which organisations should be invited to give oral evidence.

6.12 It is usual for officials (the Bill Team) to be invited to give formal oral evidence first. It is usual practice, although not necessary in all situations, for SGLD to attend the formal evidence session with the Bill Team. The focus of the officials’ evidence session should be on process (for examples, consultation undertaken) and technical issues about the how the Bill is structured and operates rather than on the policy justification for why particular decisions have been taken. A recent example of officials’ evidence can be found here - http://www.scottish.parliament.uk/s3/committees/hs/or-10/he10-2302.htm#Col3237

6.13 . Stakeholders will then usually be invited to give evidence to the lead Committee. The Minister (supported by the Bill Team, SGLD and OSPC ) usually gives oral evidence at the end of the evidence-gathering and this provides a useful opportunity to deal with any issues that have arisen in the course of evidence given by others. A recent example of Ministerial evidence can be found here - http://www.scottish.parliament.uk/s3/committees/hs/or-10/he10-2902.htm#Col3570

6.14 Bill Teams will find it beneficial to attend as many Stage 1 evidence sessions as possible. This will help Bill Teams to develop an understanding of the mood of the Committee, the views of stakeholders and the particular interests of individual Committee members. Most Ministers will expect a summary of Stage 1 evidence sessions to be provided. More generally, you may wish to consider how you will keep Ministers and internal stakeholders of how the Parliament’s consideration of the Bill is proceeding. One example of this can be found here - http://sa45eda/lcs/BillTeams/Shared%20Documents/Weekly%20Update.rtf

6.14 It will also be important for Bill Teams to consider how external stakeholders might be kept informed of the progress of the bill. Continued engagement with stakeholders throughout Stage 1 will often provide valuable information on their intentions regarding amendments to the bill and allow you to take early steps to deal with any problems. Scrutiny by other committees 6.15 Under rule 9.6.1 of the Standing Orders, other “secondary” Committee(s) may be required to comment on the Bill to the lead Committee (but not to produce a report of their own). Where this is the case, the Minister in charge of the Bill may be required to attend/participate, supported by the Bill Team and SGLD. It is usually helpful if officials attend all evidence-taking sessions to hear not only what is said but

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also the tone in which it is delivered to the Committee. The comments from these Committees, will be taken into account when the lead Committee is preparing its report. 6.16 The Finance Committee and the Subordinate Legislation Committee have specific responsibilities in relation to the scrutiny of Bills. The Parliament’s Standing Orders provide that:

• Where a Bill contains provisions conferring powers to make subordinate legislation or other delegated powers, the Subordinate Legislation Committee shall consider and report to the lead committee on those provisions

• The lead Committee shall take into account any views submitted to it by the Finance Committee on the Bill’s Financial Memorandum

6.17 The Subordinate Legislation Committee will scrutinise the Delegated Powers Memorandum which has been submitted to it by the Bill Team. It is likely that the Committee will address questions, in writing, to the Bill Team on points of detail on the delegated powers (for example, why negative rather than positive procedure has been adopted in relation to a specific power) in the Bill. Ministers and officials will usually not have to appear before the Subordinate Legislation Committee to give evidence. The Subordinate Legislation Committee will then produce a report for the lead Committee on the delegated powers of the Bill. The Subordinate Legislation Committee will normally ask to receive a formal response from the Scottish Government on its report before Stage 2 begins. An example of recent exchanges between the Subordinate Legislation Committee and the Scottish Government can be found here:

• Subordinate Legislation Committee letter to Scottish Government, Scottish Government response to Subordinate Legislation Committee and Subordinate Legislation Committee report to lead committee - http://www.scottish.parliament.uk/s3/committees/subleg/reports-10/sur10-42.htm

6.18 The Finance Committee will scrutinise the Bill’s Financial Memorandum, adopting one of three levels of scrutiny:

• Level 1 – the Committee seeks written evidence from organisations financially affected using a standard questionnaire and any responses received are passed directly to the lead Committee considering the Bill. This is completed in advance of the lead Committee’s evidence session with the Minister at Stage 1

• Level 2 – the Committee seeks written evidence from affected organisations before taking oral evidence from the Bill Team and then producing a report for the lead Committee

• Level 3 – the Committee seeks written evidence from affected organisations, takes oral evidence from affected organisations followed by evidence from the Bill Team, and then produces a report for the lead Committee

A formal response to the Finance Committee’s report is not usually required by Bill Teams may wish to consider whether there is advantage to be gained in addressing points raised by the Finance Committee in order that this can be taken into account by the lead committee in its deliberations.

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Stage 1 Report Having issued its call for evidence, taken oral evidence from officials, stakeholders and Ministers, and received reports from other committees of the Parliament, the lead Committee will then report to the Parliament on the general principles of the Bill, the Bill’s Policy Memorandum and the consultation process. An example of a recent Stage 1 report can be found here – http://www.scottish.parliament.uk/s3/committees/ellc/reports-10/edr10-06.htm 6.19 Between the lead Committee reporting and the Stage 1 debate taking place, it may be helpful, given the limited time available at the Stage 1 debate, for the Government to respond to some or all of the points that are raised in the report by means of a short memorandum to the Convener of the lead Committee. This could deal with any misunderstandings that the Committee may have reported to Parliament and to which the Minister may refer in the debate or it may address substantive policy issues where Ministers think it beneficial to provide the committee with advance warning of their intentions (doing so, could, for example, have a positive effective on the likely tenor of the Stage 1 debate). However, providing such a response may not always be possible in the time available and, indeed, it may be beneficial in some situations to await the debate before setting out the Scottish Government’s position. 6.20 The lead Committee’s Stage 1 report should be published at least 5 days ahead of the Stage 1 debate in Parliament to consider the Bill’s general principles. Any shortening of that period must be agreed by the Parliament on a motion of any member to suspend standing orders under rule 9.6.3A. The Scottish Government will (normally) provide the lead Committee with a response to its Stage 1 report before Stage 2 begins. This response will typically set out how the Scottish Government intends to deal with specific recommendations in the committee’s Stage 1 report – such as if the Scottish Government is minded or not to bring forward an amendment which the committee has suggested. A recent example of a response to a Stage 1 Report can be found here – http://www.scottish.parliament.uk/s3/committees/ellc/inquiries/documents/SGresponse03.09.10.pdf Stage 1 Debate 6.21 Following publication of the lead committee’s Stage Report the chamber debates and votes on whether or not the Parliament agrees to the general principles of the Bill (determining whether or not the Bill progresses to Stage 2). The Stage 1 debate is usually shaped by the issues raised in the lead committee’s Stage 1 Report and it is typically lead committee members, along with opposition spokespeople, who make the main contributions to the debate. The date for the Stage 1 debate is set by the Parliamentary Bureau following discussions between PS/MfPB and Clerk of the relevant Committee(s). Please contact the office of the Minister for Parliamentary Business (ext 85593) if you wish to discuss the date for the debate. Please also keep the Legislation and Parliamentary Liaison Team informed.

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6.22 The Minister in charge of the Bill, as well as those Ministers who have an interest in the subject matter, should be present in the Chamber for the Stage 1 debate. Bill Teams will need to prepare an opening and closing speech for their Minister to give at this time. Again, it is expected that the Bill Team, and possibly SGLD and OSPC, will be in attendance for the debate. The Minister in charge will require to move a motion that the general principles be agreed to. 6.23 It is possible for the Bill to be referred back to Committee under Rule 9.6.5 of the Standing Orders for a further report on the general principles of the Bill (or any part of it). It is unlikely that the Government would wish to make use of this mechanism in relation to a Government Bill, and would oppose any attempt to do so by other members. If the Bill, or any part of it, is sent back to the lead Committee for reconsideration the same principles apply as for the initial consideration by the Committee. 6.24 Bill Teams should consider carefully the advisability of making any announcement about the Bill in advance of the Parliament approving the principles of the Bill at the Stage 1 debate. Even if every care is taken to ensure the announcement makes reference to the fact that it is subject to Parliamentary approval, there is no guarantee that the Committee report will not contain any surprises. Following Parliamentary approval of the principles of the Bill, however, consideration can be given to what, if any, further information on the Bill could be made available. Amendments to Stage 1 Motions 6.25 Debates in the Parliament at Stage 1 (and at Stage 3) of the Bill take place on motions lodged by the member in charge of the Bill. At Stage 1 the motion is “That the Parliament agrees to the general principles of the [short title] Bill’’. At stage 3 the motion is “That the Parliament agrees that the [short title] Bill be passed”. Motions of either sort may be amended and, as with other amendments to motions, it is for the Presiding Officer to decide whether they are selected for debate (Rule 8.5.6). Such amendments are sometimes referred to as ‘reasoned amendments’. 6.26 The Presiding Officer will only select for debate amendments which are so worded that they cannot cast any doubt on what the status of the Bill would be if the amended motion were agreed to. Such amendments will, therefore, only be selected if:

• it would remain clear from the amended motion that the general principles of the Bill would be agreed to (and the Bill would proceed to Stage 2), or that the Bill would be passed, as the case may be; or

• it would be clear from the amended motion that the general principles of the Bill would not be agreed to, or that the Bill would not be passed, as the case may be (and, in either case, that the Bill would fall).

6.27 As an example, amendments in the first case might be worded to add a reason why, in agreeing to the motion, the Parliament does so with some regret or misgivings – e.g. Insert at end “but, in doing so, expresses reservations about [etc.]”

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6.28 Amendments in the second case should be worded so as to reverse the terms of the motion for a reason stated in the amendment – e.g. Leave out from “agrees to” and insert “does not agree to the general principles of the [short title] Bill because [etc.]” Financial Resolution 6.29 Standing Orders rule 9.12 states that where a Bill contains provisions–

(a) which charge expenditure charged on the Scottish Consolidated Fund, or

(b) to the likely effect of which would be to–

(i) increase significantly expenditure charged on that Fund:

(ii) give rise to significant expenditure payable out of that Fund for a new purpose; or

(iii)increase significantly expenditure payable out of that Fund for an existing purpose,

no proceedings may be taken on the Bill at any Stage after Stage 1 unless Parliament has by resolution agreed to the expenditure or the increase in expenditure being charged on or, as the case may be, payable out of that Fund. 6.30 It is particularly important that the relevant Finance Team is consulted before instructing provisions in Bills about financial matters such as expenses, accounts and audit and borrowing powers to ensure consistency with the Public Finance and Accountability (Scotland) Act. Thereafter, the Finance Team should be copied into all paperwork regarding the Financial Resolution. Although drafted by Counsel, the Finance Team should also clear the motion and pass it back to the Bill Team who will submit it to the lead Minister and Finance Minister(s) for approval. 6.31 For Bill management purposes, the usual practice is for notice of the motion for the Financial Resolution to be lodged shortly after introduction of the Bill or certainly a few weeks before the Stage 1 debate in plenary on the Bill’s general principles (consult with the Office of the Minister for Parliamentary Business), and for the motion for a Government Bill to be moved immediately after the Stage 1 debate. It is therefore important that Bills which do require a Financial Resolution are identified so that there is no delay in the Bill’s progress. While it is for the Presiding Officer (upon introduction of the Bill) to determine whether or not a Financial Resolution is required, OSPC initially identifies the need for a Financial Resolution, and is responsible for drafting the motion. Motions for Government Bills are usually drawn up in wide terms, whereas those for non-Government Bills are narrowly drawn. 6.32 As set out at paragraph 3.7 of the Scottish Ministerial Code, all motions for Financial Resolutions are lodged by OSPC in the names of the Cabinet Secretary for Finance and Sustainable Growth and the lead Bill Minister named as supporters. Only a Cabinet or Junior Minister may lodge and move the relevant motion. The motion may not be amended. It falls to the Minister responsible for the Bill to which the Financial Resolution relates to secure Parliamentary approval of the Resolution.

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6.33 Bill Teams should also note that under Rule 9.12.8 unless the Parliament approves the Financial Resolution within 6 months of the completion of Stage 1, the Bill falls. The 6 month rule does not apply where the need for a Financial Resolution arises upon an amendment to the Bill. 6.34 Financial Resolutions may only be lodged and moved by the Government, but such resolutions may be required in connection with Committee Bills, Members Bills or, more rarely, Private Bills. Further information on handling of Financial Resolutions for Members Bills etc is to be found at paragraph 8.27. Stage 2 Progressing to Stage 2 6.35 Rule 9.7 of Standing Orders deals with Stage 2 of the Bill’s progress through Parliament. This Stage will potentially be the busiest and most important for Bill Teams. If the Parliament agrees to the Bill’s general principles at Stage 1, the Parliamentary Bureau will usually refer the Bill back to the lead Committee to consider the details of the Bill at Stage 2. Timetabling Stage 2 6.36 There should be an interval of at least 11 ‘clear’ days between the end of the Stage 1 debate and the start of Stage 2 proceedings (rule 9.5.3A). This is the minimum time period which should be built into the timetable. The Bill Team will want to consider how much time will be needed to develop the necessary Stage 2 amendments in the light of the commitments made by the Government during Stage 1 proceedings. The Bill Team will want to discuss the proposed timetable with SGLD and OSPC and also the PS/Minister for Parliamentary Business. 6.37 Allowance needs to be made for when the Committee next intends to meet: some Committees meet fortnightly but a Committee may choose to meet as often as twice weekly during Stage 2 to ensure that they complete the stage to the timetable. It is possible that the Bill Team may become aware that they cannot be ready to commence or continue Stage 2 or 3 before a certain date, for example, because Government amendments are not ready. Early notice of needs like these should be given to the Minister for Parliamentary Business. The Parliamentary Bureau usually sets a timescale within which Stage 2 should be completed following discussions between PS/MfPB and the Clerk to the relevant Committee(s). The Bureau may also negotiate with the Convener of the Committee targets that the Government can achieve (e.g. not to start for 4 or 6 weeks after Stage 1, or not to go beyond a particular section of the Bill on a certain date). 6.38 Once the programme of committee sittings is known, the Committee will usually want to fix targets for each sitting. So, for example, the target for Day 1 might be that the Committee will not deal with amendments beyond section 10 of the Bill; or that it will consider amendments which relate to sections 40 to 60. 6.39 The setting of targets assists the orderly handling of business as amendments which will not be taken on a particular day do not require to be lodged in time for that

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sitting. Targets are usually fixed by agreement between the Bill team (after consulting the SGLD and OSPC) and the Committee Clerks. Stage 2 handling discussion 6.40 Before Stage 2 begins, the Minister for Parliamentary Business’ office will convene a meeting with the Bill Team to discuss handling arrangements including any controversial areas, etc. 6.41 The Minister for Parliamentary Business meets every week with Ministers to consider any issues arising in the Committees they oversee and that can often prove a useful opportunity to identify potential difficulties before they give rise to serious problems for the Bill’s progress. The Stage 2 process 6.42 The principal role of the Committee at Stage 2 is to consider and dispose of amendments. All amendments to the Bill are considered in Committee. MSPs who are not members of the lead Committee are entitled to participate in Stage 2 proceedings. They can lodge and speak on amendments in Committee; they are not however able to vote. Officials supporting the Minister are not entitled to speak, and any attempt by the Committee to persuade them to do so should be resisted. (Rule 9.7.7) 6.43 The Member in charge of the Bill will attend the Committee to move and speak to amendments but may not vote. Ministerial attendance at this stage in the progress of the Bill is essential throughout. It is expected that the Minister will be first to speak on Government amendments and that he or she will have the right to wind up the discussion. The Bill Team Leader and official responsible for the policy area (if not one and the same person) should also be in attendance, together with representatives from SGLD and OSPC. Other officials may attend if space in the Committee room allows thisThe Clerk of the Committee will be able to advise on the number of seats available for officials supporting the Minister. 6.44 The main work of the Bill Team at Stage 2 will consist of providing briefing for the Minister on Government amendments and opposition amendments. In addition, there may be advantage in providing briefing to other members of the Committee on the effect of Government amendments (in order that members of the Committee have a full understanding of what an amendment is intended to do, which is not always obvious from the bare text of an amendment), and this may ease the passage of the Bill. Any such briefings should be sanctioned by the Minister in charge of the Bill, in consultation with the Minister for Parliamentary Business. These are called Purpose and Effect Notes. Bill Teams should also consider whether there is merit in offering similar briefing on non-Government amendments. 6.45 Where Stage 2 is taken by a Committee of the Whole Parliament, the Presiding Officer acts as convener of the “Committee”. The procedures are otherwise as they would be in ordinary Committee.

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Amendments 6.46 Rule 9.10 deals with Amendments to Bills. Ideally, no Government amendments should be needed during the passage of a Bill, but the reality is that almost all Bills will require to be amended to some degree during their parliamentary passage. It may be necessary for presentational reasons to introduce a Bill before every last detail is fully worked out, and Ministers will have been invited to take a view on the preparedness of the Bill. There may be a need to respond to Committee or stakeholder concerns raised during Stage 1, or problems may be discovered in the draft. If the Parliament agrees the principles of the Bill at Stage 1, then the Government is duty bound to propose amendments to ensure that the legislation is clear, unambiguous and workable. Where amendments are required, these should as far as possible be made at Stage 2 rather than at Stage 3, leaving Stage 3 for tidying up and for delivering on undertakings given at Stage 2. Drafting and clearing amendments 6.47 When the need for Government amendments becomes clear, these will be instructed following the same process as for the original Bill. Bill Teams will prepare policy instructions. SGLD will develop legal instructions and OSPC will draft the amendments. The level of Ministerial clearance will depend on the significance of the amendment and involvement of Ministers, but all should be cleared at least in principle with the Minister in charge of the Bill (and their general authority to lodge purely technical amendments should be sought). Some Bill Teams have reported that, in practice, they cleared the text of any controversial amendments with the Minister and covered the rest in a submission which merely gave a list of the subject matter of the amendments. 6.48 Importantly, the financial implications of amendments, including non-Government amendments, should be assessed and cleared as necessary with the relevant Finance Team as well as with the Finance Ministers. OSPC will advise whether a Financial Resolution is likely to be required. 6.49 Any amendment which significantly alters the policy agreed by Cabinet before the Bill’s introduction, or which raises sensitive issues, should be cleared more widely, and should be discussed in the first instance with CSCL Secretariat about whether CSCL and/or Cabinet approval is required. The Minister for Parliamentary Business should be included on copy lists and forewarned of large batches of amendments or politically sensitive amendments. Where there are large batches of amendments or politically sensitive amendments, the Minister for Parliamentary Business has expressed a wish to be minuted separately by the Minister in charge of the Bill or be a top copy recipient on any minute coming forward from officials. Textual changes to the Bill 6.50 Certain changes to the Bill are made administratively rather than by amendment. Changes may be made to section, schedule, Part and Chapter titles and to italic cross-headings to ensure that they continue accurately to reflect what falls

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under them. The numbering (including numbers in cross-references) is corrected and punctuation changed where this is required in consequence of amendments made to the Bill (so long as the sense of the provision is not altered). The changes to a Bill that may be made administratively rather than by amendment are described as “printing points”. OSPC will deal with these points, in conjunction with the Clerks, but it would be helpful if Bill Teams could notify SGLD and OSPC of any points that they identify. Wrecking Amendments 6.51 Where an amendment is proposed it must be consistent with the general principles of the Bill as agreed by Parliament (Rule 9.10.5(c)). This rule is intended to rule out so-called “wrecking amendments” i.e. amendments that would reverse, substantially alter or render ineffective a principal purpose of the Bill. The rationale for this rule is that, by the time the Bill comes to be amendable, the Parliament has already voted at Stage 1 in favour of its general principles. The purpose of Stage 2 is to subject the Bill to detailed scrutiny and to improve the means by which it gives effect to those general principles. The proper course is therefore for Members to oppose the Bill at Stage 1 – or if any amendments made at Stage 2 are insufficient to make it acceptable in their view, to oppose the question that the Bill be passed at Stage 3. The Clerks will often discuss with Counsel any amendment which they think might be a wrecking amendment. There have been examples from previous bills where it has been possible to get round the Rules. For example, during the passage of the Tobacco and Primary Medical Services (Scotland) Bill rather than put forward an amendment to remove a whole Part of the Bill, which probably would have been considered a wrecking amendment, individual amendments were brought forward which removed the individual sections of that Part. The individual amendments were not considered as wrecking amendments. Legislative Competence of Amendments 6.52 The member of the Scottish Government in charge of a Bill is required by section 31 of the Scotland Act 1998 to make a statement on or before its introduction that its provisions would be within legislative competence. The Presiding Officer has to make a statement about whether or not in his view that would be the case. However, there is no statutory requirement for either the Presiding Officer or the Minister in charge of the Bill to give any statement to the Parliament as to whether they consider that any amendment would be within the legislative competence of the Parliament. Neither is there provision in the Standing Orders which would entitle the Clerks or the Convener to rule that an amendment is inadmissible if he or she considers that it is not within the legislative competence of the Parliament. 6.53 It is to be expected, however, that the Government would not propose an amendment where it is thought that the amendment might result in some provision of the Bill being outwith the legislative competence of the Parliament. 6.54 If SGLD consider that a question may arise as to whether the amendment might not be within the legislative competence of the Parliament, he or she may

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consider it appropriate to seek a formal opinion from the Scottish Law Officers that the amendment is within competence in the same way as was done with the Bill itself. The submission seeking clearance to put down the amendment should indicate whether or not there is a competence difficulty that is being or has been considered by the Law Officers 6.55 Equally, there is no provision, either in statute or in the Standing Orders, for vetting whether any non-Government amendment is within the legislative competence of the Parliament. The Bill Team should consider whether any non-Government amendment is likely to be within the legislative competence of the Parliament and brief the Minister accordingly in the Note on Amendment. To state the obvious, it would be unfortunate if the Scottish Government allowed the Parliament to pass such an amendment without drawing the question of competence to the attention of the Parliament, particularly if this results in the Bill being referred to the JCPC by one of the Law Officers (including the Lord Advocate) after the Bill has been passed. Lodging Amendments Lodging amendments 6.56 Government Amendments will be lodged in the name of the Minister in charge of the Bill by OSPC. Up to 4 members may add their names to an amendment (including a Government amendment) after it has been lodged. Although it is possible for other Ministers to add their names to the amendments, this is not necessary. (Rule 9.10.3) 6.57 At each amending stage, amendments may not be lodged until the previous Stage has been completed. For Stage 2 amendments, this means once the Parliament has voted in favour of the general principles of the Bill at Stage 1. Where an amendment is proposed it should be lodged with the Clerk no later than 3 sitting days before the Stage is due to start. When the Committee meets more than once, in different weeks, there is a separate lodging day for each of these weeks, namely before the first meeting in that week (Rule 9.10.2). The purpose of the time limit is to give members an opportunity to consider amendments in advance of the debate, to allow the Clerk time to marshal and group the amendments and for the Government to assemble its briefing. An amendment may be moved at Stage 2 with notice of less than 3 sitting days having been given but only with the agreement of the Convener. Such amendments are known as “manuscript amendments” (Rule 9.10.6). The Minister for Parliamentary Business must be alerted when the Government is considering bringing forward manuscript amendments.

6.58 The Government has agreed that for Government amendments, the 3 day rule should be taken to be an absolute backstop, and amendments should normally be lodged at least 5 sitting days in advance (i.e. on a Wednesday for a Committee meeting the following Wednesday). As the admissibility of amendments is determined after they are lodged and before they are printed, it cannot be guaranteed that amendments lodged after 4.30 pm will appear in the following day’s Business Bulletin. Bill Teams should therefore ensure that amendments are cleared in time to allow Counsel to lodge them by 4.30 pm (or earlier, if a large number of amendments is involved). This deadline applies to lodging amendments at all Stages except on the

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final day when the deadline for lodging all amendments at Stage 2 or Reconsideration Stage, is 12 noon (Rule 9.10.2). 6.59 Amendments are grouped by the Convener of the Committee with advice from the Clerks, who will usually give Counsel an opportunity to comment on the proposed groupings. Bill Teams should be ready to offer Counsel suggested groupings and Clerks are usually willing to provide the Bill Team with an advance sight of their proposals for comments. Amendments can be grouped for the purpose of debate but are voted on in the order they appear in the marshalled list. Any amendment already debated as part of a group may not be debated again when that amendment comes to be disposed of. This process of debating amendments in groups, but voting on them sequentially, is a key part of the Stage 2 process which Bill Teams should familiarise themselves with. The simplest way to do so is to follow Stage 2 proceedings of a current Bill. 6.60 When amendments are lodged notice of them will appear the next day in Section G of the Business Bulletin. On each day when amendments are lodged, the Clerk supplies the Committee members, OSPC and the Bill Team with a Daily List which consists of all the amendments (Government and non-Government) lodged that day. The Business Bulletin should be checked regularly by the Bill Team and will give the text of the amendment, the number of the amendment, the name of the member who proposed it, and those who support it. Only amendments which have been judged to be admissible (see Rule 9.10.5) will appear. This timescale leaves very little time to prepare and Bill Teams are advised to begin preparing briefing as soon as either the first drafts of Government amendments are prepared or non- Government amendments are received to allow for the inevitable rush at the end. Bill Teams should check with their Private Office about any briefing preferences their Minister has – some Ministers may want an initial view on amendments as soon as they are received; others may be content to wait until a full briefing pack has been prepared. Order of Consideration 6.61 The normal order of consideration of amendments (as set out in Rules 9.7.3 and 4) will be for the Committee to work through the sections in the order that they appear in the Bill, with a schedule being taken immediately after the section which introduces it and with the long title being taken at the end. This order cannot be varied by the Committee unless the Parliament has decided an order for consideration on a motion from the Parliamentary Bureau. Where Bill Teams wish to take a Bill in a particular order (e.g. to delay consideration of part of the Bill to allow time for amendments to be prepared), they should consult OSPC and the Minister for Parliamentary Business’ Office in the first instance. The Clerk is likely to consult OSPC at an early stage (before Stage 2 begins) on whether the Parliamentary Bureau is likely to be invited to recommend a particular order of consideration. The Clerk will also alert Counsel to any proposal by the Committee to decide an order other than the normal one. Grouping of Amendments and Order of Debate

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6.62 Amendments are grouped into topics to minimise repetition in debate and to maximise choice by considering related matters at the same time. The grouping of amendments for debate at Stages 2 and 3 is a decision for the Presiding Officer or Convener, as appropriate, on the advice of the Clerk. Bill Teams need to know what the final groupings are so that Notes on Amendments and Speaking Notes for the Minister can be finalised in accordance with those groupings – i.e. each speaking note for a grouping will need to cover all of the (Government and non-Government) amendments in that group. Clerks are aware of the need for this to be done as timeously as possible although a final list cannot be made until the last deadline for lodging amendments has passed. To assist the process, the Clerk will aim to group amendments as they are lodged rather than waiting until the final deadline. This will be a continuous process as new amendments arrive, but it should allow Bill Teams to carry out some useful advance work on Notes on Amendments. 6.63 The Clerk is required to clear proposed groupings with the Parliament’s Legislation Team and they will then share these interim groupings, in confidence, with OSPC who will, in turn, advise the Bill Team. The Clerk is always willing to receive suggested groupings via OSPC. The Clerk will share the proposed final groupings with OSPC at the same time as they are passed to the Parliament’s Legislation Team. Bill Teams and Clerks may wish to consider arranging the first day of Stage 2 for an afternoon sitting of the Committee to allow maximum preparation time. The marshalled list and groupings are prepared by the Clerk for the first meeting in each week. 6.64 Amendments are grouped if they are dependent on each other, or are alternative amendments, or are amendments of amendments, or are about the same or related matters. It is probable that Government and non-Government amendments will be grouped together if they relate to the same topic. This provides an additional challenge in preparing Notes on Amendments and speaking notes for the Minister. If the Government is the lead amendment in the group, the Minister will open the debate and speak to all of the amendments in the group, including non-Government amendments. Speaking to non-Government amendments can confer a tactical advantage (i.e. non- Government amendments being pre-empted), although it also means speculation on the part of Bill Teams as to the purpose of some Opposition amendments, particularly if they are not clearly worded. At the end of the debate, once others have spoken to their amendments, the Minister will respond to points raised both in the Government amendments and the other amendments. For the avoidance of doubt about the Government’s position, it is helpful the Minister’s speaking notes for groupings of amendments conclude with a clear summary of which amendments in the group the Committee is being invited to support or resist. 6.64If the debate opens with non-Government amendments, the Minister will usually be the final person invited to contribute before the member who opened the debate sums up in order that the Minister can respond to the points which members have made on their amendments.

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Notes on Amendments 6.66 The Bill Team should produce Notes on Amendments for use by the Minister during the debate. Notes on Amendments should contain:

• text of amendment(s), with number and names of proposer and supporters (unless text of amendment is long in which case you should refer to the Marshalled list);

• indication of Government line: Resist; Accept; Consider; Accept in Principle (e.g. if drafting defective); Government Amendment;

• Purpose and Effect for each amendment. Short description of what the amendment is intended to achieve and what it actually does – the two may be different!;

• Background Notes (not always needed) which might be helpful for the Minister, e.g. whether amendment provided by campaigning group/subject debated at earlier stage/ correspondence between Member and Minister on the subject;

• Speaking note. Sets out Government position and concludes by inviting the Committee to approve amendment/Member to withdraw amendment etc. Ministers may have particular preferences for the form of speaking note. Notes should be structured so as to make it clear which amendment, or grouping, is being dealt with. For large/complex groupings Bill Teams are advised to have a short outline followed by more detailed notes for use only if needed. Note that Members are simply referred to by name, not by reference to their constituency. The Presiding Officer and Deputy Presiding Officers may also be referred to by that title. It is a matter of choice whether to refer to the Convener by name or by title.

6.67 Considerable numbers of notes can be involved so a strict routine is required to ensure that each amendment is being considered and that the notes are cleared by all interested parties. Ideally, one person should be designated to co-ordinate this operation from the first notice of an amendment to the insertion of the final copy of the note in the Minister’s folder. Although some duplication in effort is involved, most Bill Teams will prepare a note on each amendment (excepting situations where a large number of consequential amendments are involved) and then combine these notes once the groupings of amendments are available from the Parliament. 6.68 If the Minister is moving an Government amendment the normal form of words to be used at the end of the speech is “[Accordingly,] I move amendment [number]”. If the Minister has spoken to more than one Government amendment (because they were grouped) he or she moves only the first amendment in the group. Where the Minister is resisting amendments, the speech should normally end with an invitation to the member who has moved the amendment to withdraw or not move it. 6.69 Where an amendment is called having already been debated earlier, it may be more convenient for the Convener simply to ask the member who proposed it whether he or she wishes to move it – to which the member can simply reply “Yes” or “No”. Where there is a number of such amendments consecutive in the list and within the

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same section or schedule, they may be moved en bloc. But if the member who proposed them does not wish to move them, the Convener should call the amendments individually to allow other members the opportunity to move any one in its place in the list. 6.70 Given the importance of accuracy (Pepper v Hart – see paragraph 5.54), all notes on amendments should be cleared by SGLD before going to the Minister. Where it is necessary for the Minister to read text into the record for Pepper v Hart purposes, without departing from the agreed text this should be clearly indicated in the text (e.g. use of bold typeface) and the Minister briefed on the significance of this. 6.71 Once the marshalled list and groupings list are available, the Bill Team must ensure that the notes contain the current set of amendments and arrange for notes to be split/combined as necessary. (There is an inevitable risk of errors or non sequiturs so it is helpful to have someone who has not written the note read through it.) 6.72 APS/ MfPB will prepare the crib sheet on which the Bill team should mark up the Minister’s voting intentions – either Yes or No. APS/MfPB will issue the crib sheet to Government committee members the night before the committee session. 6.73 Bill Teams should then prepare folders of Notes, in debate order, for the Minister (and a set for the Private Secretary, if required), SGLD, OSPC and other officials attending the debate. The Bill Team should also provide the Official Report with a copy of the speaking notes only – background notes should not be provided. 6.74 Although amendments are grouped for debate and are debated when the first amendment in the group is reached on the marshalled list, later amendments in the group will still be called in the order as per the marshalled list. They will not be debated again, but the Minister needs to be ready to move the amendment/ resist it as appropriate. It is helpful to provide a “crib sheet” as the cover to the pack of notes to guide the Minister and avoid any potential mistakes as proceedings often move along at speed. 6.75 The normal response for non- Government amendments is likely to be “resist” as they will not be in line with Government policy. If the Bill Team is inclined to accept an amendment, SGLD and OSPC should be consulted immediately to ensure that the amendment is not defective. If the amendment is defective, the Minister may accept in principle and undertake to lodge a Government amendment at Stage 3 in correct form. The Minister for Parliamentary Business must be notified as early as possible if any non-Government amendments are to be accepted by the Minister or if any Government amendments are to be withdrawn. 6.76 It is unlikely that amendments lodged by individual Members will be drafted to the same standard as Government amendments. It is considered bad form for the Minister to reject amendments simply because of technical deficiencies, and the Minister should instead address the substance of the amendment – if the amendment is acceptable in principle but technically defective, the Minister may give an undertaking to return at the next Stage with a suitable amendment, (if this happens at Stage 3, it may require the use of mechanisms in Rules 9.8.5C and 9.8.5D – for which see paragraph 6.81 and paragraph 6.83).

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Purpose and Effect Notes for Committee members 6.77 For some Bills, Bill Teams have prepared notes explaining the purpose and effect of amendments for the assistance of the members of the Committee. Whether this is done is for the Minister in charge of the Bill to determine. Some Teams have reported that, for a Bill with a great deal of technical content and a large number of very technical Government amendments, briefing for all MSPs involved proved helpful. It seemed to reassure all sides that a number of amendments could be taken on trust with little or no debate and informed all about amendments which would otherwise have been difficult to understand. Time for debate was then properly focussed on the important or controversial issues. However, it still remains that the decision will be taken by the Minister in charge of the Bill. 6.78 If notes are to be prepared, it is recommended that they should deal only with Government amendments, drawing on the purpose and effect sections of the Notes on Amendments. These should be sent to members of the Committee at least 2 days before the Committee meeting. The notes may also be used for briefing media interests. Some Clerks have been willing to forward these to Members for the Bill Teams. Where this is not the case, Teams have created e-mail distribution lists for all Committee members, Convener and Clerk. 6.79 The notes should not attempt to describe the purpose of non- Government amendments – that is for the member proposing them to explain to the Committee, and the Government may in any event misinterpret the intentions of the member in proposing the amendments. If the lead Minister agrees, it may, however, be helpful to provide members of the Committee from the Executive parties with brief notes of the Government’s line on each of the non- Government amendments – provided through Minister for Parliamentary Business’ Office. Formal requirement for the Committee to consider and dispose of sections/schedules 6.80 Bill Teams will find that the Stage 2 process is driven by the consideration of amendments. However, it is worth bearing in mind that the Standing Orders (Rule 9.7.6) formally require that the lead Committee consider and dispose of every section and schedule at Stage 2. In practical terms this means that the Convener will put the question “That section/schedule x be agreed to.” at the end of each section. Before the question is put, the convener may give members the opportunity to raise any issues relevant to the section or schedule that have not been adequately discussed during consideration of amendments to it. Because the only mechanism to leave a section or schedule out of a Bill is by means of an amendment, putting the question on each section or schedule is, in practice, a formality. There is no obligation on members to agree when the question is put on the section or schedule, but disagreement does not lead to a division and cannot result in the omission of the section or schedule from the Bill. In other words, any substantive decision on whether a section or schedule should remain in the Bill will only be taken if a specific amendment to delete a section of the Bill has been lodged. Summary of Bill Team Work at Stage 2

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6.81 At stage 2 the Bill Team’s main tasks will be to:

• Keep track of all amendments to the Bill, whether Government or non- Government;

• Commission or prepare briefing for the Minister on amendments;

• Brief the Minister in advance of each Committee meeting, indicating in particular where controversial amendments may arise and where any concessions can be made Bill Teams should liaise with the Minister’s Private Secretary;

• Attend Committee meetings and pass additional notes to the Minister as necessary;

• Keep a note of commitments made during sittings (to write, to reconsider, to re-examine drafting etc) and follow these up;

• Prepare Purpose and Effect Notes for other Committee members, if appropriate;

• Keep the Minister for Parliamentary Business’ Office informed of issues relating to Bill handling and of any non- Government amendment which the Government wishes to support;

• Provide APS/MfPB with voting intentions for crib sheet.

• Work with Press Office on presentation considering what information could be released proactively;

• Keep UK Government Departments and the Scotland Office in the picture; and

• If the Bill is amended at Stage 2, inform Michael Abell, Legislation and Parliamentary Liaison Team.

• After each Stage 2 session provide a short report for the MfPB Preparation for Stage 3 6.82 There should be an interval of at least 9 sitting days between the end of Stage 2 and the start of Stage 3, regardless of whether the Bill is amended at Stage 2 (Rule 9.5.3B). Ensure this is built into your timetable. 6.83 At the end of Stage 2, if the Bill has been amended, the Clerk arranges for the Bill as amended to be reprinted. Sections, subsections etc. retain the numbers which they had in the Introduction print, additional provisions being given a number indicating their place in the Bill (e.g. 18A, subsection (4A)). This numbering is retained throughout the progress of the Bill and makes it easier to track the history of a particular provision throughout the different Parliamentary stages. 6.84 Where powers to make subordinate legislation have been inserted or substantially altered at Stage 2, a revised or supplementary Delegated Powers Memorandum should be provided no later than the end of the second week before the week in which Stage 3 is due to start (or, to put it another way, by the end of the week

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before the Subordinate Legislation Committee meeting in the week before Stage 3) (rule 9.7.10).

• This means that if Stage 3 is due to take place immediately after the minimum 9-day gap after Stage 2, then there may be only 2 days to produce a revised Memorandum. It will probably be helpful to keep track of changes as they take place: every effort should be made to produce the Memorandum as early as possible. We have an agreement with the Parliament’s Legislation Team to provide them with the revised or supplementary Memorandum normally 3 days before the deadline in Standing Orders – see Note at end on ‘days’. This is to allow them time to scrutinise the Memorandum for conformity with the requirements of rule 9.4A before it is published.

• The norm is for a supplementary Memorandum dealing only with new powers or those that have changed. If a revised Memorandum is contemplated this should be discussed with SGLD and OSPC. OSPC will, as appropriate, discuss the format with the Parliament’s Legislation Team before a final view is taken. The format will depend on the number of changes required to the original Memorandum.

• OSPC will arrange for the Memorandum to be sent to the Head of the Legislation Team on behalf of the Clerk.

• It is also very helpful to alert the Subordinate Legislation Committee, by means of a letter from the lead Bill Minister to the Convener with copy to the Clerk, to the relevant amendments proposed at Stage 3, whether the amendments are entirely new or are intended to reverse amendments made at Stage 2.

6.85 Where new sections or schedules have been added or existing provisions have been substantially amended at Stage 2, revised or supplementary Explanatory Notes should be provided at least 4 days ahead of Stage 3 (rule 9.7.8A).

• updated Explanatory Notes will allow the amended Bill to be more easily understood and should summarise objectively what each of the (new) provisions does and giving any other information necessary or expedient to explain the effect of the amended Bill;

• where non- Government amendments have been made these will need to be explained in as objective a manner as possible. In cases where the Government considers the amendment to be legally or technically deficient or otherwise impracticable, it may be appropriate to say so and to indicate what changes are thought necessary;

• the decision on whether revised or supplementary Notes are required should be taken in consultation with SGLD and OSPC. OSPC will, as appropriate, discuss the format with the Parliament’s Legislation and Parliamentary Liaison Team before a final decision is taken. The format will depend on the number of changes required to the original Notes, but it is expected that revised rather than supplementary Notes will be the norm;

• we have an agreement with the Parliament’s Legislation and Parliamentary Liaison Team to provide them with the revised or supplementary Notes normally 3 days before the deadline in Standing Orders (see Note at end on

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‘days’). This is to allow them time to scrutinise the Notes for conformity with the requirements of Standing Orders before they are published;

• OSPC will arrange for the Notes to be sent to the Head of the Legislation Team on behalf of the Clerk.

6.86 Where amendments have been made at Stage 2 or, following Stage 2, where new/updated financial information becomes available that substantially alter the cost implications of the Bill as described in the original Financial Memorandum, a revised or supplementary Financial Memorandum providing the information required under rule 9.3.2 should be provided at least 4 days before Stage 3 (rule 9.7.8B). Finance Guidance Note 2009/01 provides full guidance, but the following general points should be borne in mind:

• any Government amendments that affect costs should have been cleared in advance with the relevant Finance Team and Ministers. Accordingly, suitable material should already be available for any revised or supplementary Memorandum. Please liaise closely with your Finance Team on the terms of any revision or supplement to the original Memorandum which should provide the information required under rule 9.3.2 in relation to the Bill on introduction.

• where a non- Government amendment carries substantial additional costs it should be possible to draw from the briefing prepared, in consultation with Finance colleagues and Ministers, when the amendment was considered at Stage 2. The Memorandum should offer a fair assessment of the costs together with any other relevant information considered appropriate, consistent with rule 9.3.2. It may be that the Executive would seek to remove or revise the amendment at Stage 3;

• we have an agreement with the Parliament’s Legislation and Parliamentary Liaison Team to provide them with the revised or supplementary Memorandum normally 3 days before the deadline in Standing Orders (see Note at end on ‘days’). This is to allow them time to scrutinise the Memorandum for conformity with the requirements of Standing Orders before it is published;

• OSPC will arrange for the Memorandum to be sent to the Head of the Legislation Team on behalf of the Clerk;

6.87 The Minister for Parliamentary Business’ Office will seek information prior to Stage 3. This will include:

• what Government defeats (if any) occurred at Stage 2, the effect of such amendments, whether it is intended to overturn them at Stage 3, the degree of controversy surrounding the amendments and the Minister’s assessment of whether sufficient support can be secured to carry any amendment at Stage 3 to correct the amendments passed at Stage 2;

• the expected number of Government amendments at Stage 3 and an estimate of the number of groupings expected and an indication of how amendments follow on from commitments given by Ministers at Stage 2;

• an estimate of how much time may be required for debate on each grouping;

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• whether an Order of Consideration motion is required;

• likely areas of controversy at Stage 3,

• confirmation that all Executive amendments will be lodged 5 days in advance. MfPB will arrange for a pre meeting to be held the day before the Stage 3 proccedings to agree the handling strategy. Attendees should include, Minister in charge of Bill , a Party Whip, appropriate Special Adviser, and Bill Team leader

Stage 3 6.88 Rule 9.8 of Standing Orders deals with Stage 3. Stage 3 will be taken by the full Parliament at a time proposed by the Parliamentary Bureau on a motion lodged by the member in charge of the Bill (as at Stage 1). It is at this point that the Parliament will decide if the Bill should be passed. There should be an interval of at least 9 sitting days between the end of Stage 2 and the start of Stage 3, regardless of whether the Bill is amended at Stage 2 Rule 9.5.3B). Ensure this is built into your timetable. 6.89 A Bill may be amended at Stage 3. Notice of an amendment may be given by any MSP after completion of Stage 2 up to 4 days before the Stage is due to start. The Government has agreed to lodge amendments at least 5 days in advance. Amendments may be lodged until 4.30 pm on any day. Stage 3 is usually taken in a single plenary meeting of the whole Parliament but where, exceptionally, Parliament plans to meet in more than one calendar week there will be a separate lodging deadline for each of those weeks, i.e. the fourth day before the first or only meeting in that week. As at Stage 2, manuscript amendments may be lodged. Where amendments are lodged, Ministerial and official attendance should be as for Stage 2. At Stage 3, the Presiding Officer has the power to select which amendments are to be considered to ensure that proceedings on the Bill can be completed in a reasonable time. The Presiding Officer is unlikely to select trivial or defective amendments, amendments which raise issues which were fully debated at Stage 2 or for which the Stage 2 debate indicated are of little merit or have little support (although the fact that an amendment was defeated at Stage 2 does not necessarily mean it will not be selected). Executive amendments will always be selected. 6.90 The Government has no locus in the process of selection, and the amendments selected are unlikely to be known until the marshalled list is issued. The marshalled list and groupings are prepared for the first meeting in each week. Bill Teams will therefore need to proceed on the basis that all amendments are to be selected, as a late discovery that an amendment has been unexpectedly selected could be particularly troublesome. However, as for Stage 2, it is always helpful to liaise closely with Counsel and the Clerk. 6.91 Before Stage 3 begins, the Parliament may, on a motion of the Parliamentary Bureau, agree to time limits on amendments as grouped by the Presiding Officer. In applying the time limits, the Presiding Officer will have regard to members who have a right to speak under the rules, any variation in the groupings and not unreasonably curtail debate. Any time limit may, on a motion agreed by the Presiding Officer, be extended and there will be a knock-on effect to all remaining time limits. The total extended time should not exceed 30 minutes overall (rules 9.8.4A , .5 and .13). Please

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liaise closely with the office of the Minister for Parliamentary Business on timetabling, etc. 6.92 Amendments at Stage 3 are to be disposed of in the order in which the provisions they relate to arise in the Bill, unless the Parliament has decided otherwise on a motion from the Parliamentary Bureau. The Clerks will consult Counsel on this. The unit of consideration at stage 3 is each amendment. If no amendment to any particular section or schedule or any sequence of them is lodged, then that section, schedule or sequence of them is not considered at all. 6.93 Rule 9.8.5 provides that if the Bill has been amended at Stage 3 the member in charge of a Bill may, immediately after the last amendment is disposed of or by previous arrangement, propose by motion without notice that the proceedings at Stage 3 be adjourned to a later day. He or she may then lodge further amendments, which may only be for the purpose of clarifying uncertainties or giving effect to commitments given earlier at Stage 3. This mechanism is likely to be used in connection with Government Bills where –

• non- Government amendments have been made to the Bill at Stage 3 and Counsel and the Bill Team need to consider the implications of these and to bring forward further amendments; or

• the Minister has promised concessions on a controversial issue and amendments are needed to give effect to the concession.

6.94 In either case, the Bill Team should be aware in advance of the possible need to invoke the mechanism in relation to a particular amendment or issue. Where there is a risk that this will happen, the Minister for Parliamentary Business should be forewarned. The Minister should move “That further Stage 3 consideration of the [short title] Bill be adjourned to [date]/a later day.” and this motion can be moved without notice and is decided without debate. 6.95 Rule 9.8.6 provides a further mechanism for part of the Bill to be recommitted for further Stage 2 consideration. This may be necessary where simply adjourning Stage 3 consideration under Rule 9.8.5 (as described above) is insufficient to resolve difficulties with the Bill (e.g. because the scope of amendments which Rule 9.8.5 allows is limited). As with Rule 9.8.5, the Bill Team will be aware in advance of the need to invoke the mechanism in relation to a particular amendment or issue and Counsel should be forewarned. The approval of the Minister for Parliamentary Business must be obtained. Recommittal should only take place in extremis. The form of the motion will be “That the [short title] Bill be re-committed for further Stage 2 consideration in respect of [specified section(s) and/or schedule(s)].” As only specified sections or Schedules can be recommitted (and no more than half of the total number of sections can be recommitted), the motion needs to set these out and should therefore be prepared by Counsel in advance so that it can be moved quickly by the Minister. Recommitment can only happen once. Where a Bill is recommitted, the guidance provided for Stage 2 applies. The minimum time interval between further Stage 2 proceedings and resumed Stage 3 proceedings has been set at 4 whole sitting days, but only if the Bill is amended at the further Stage 2 proceedings.

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6.96 Stage 3 is the last point at which Crown consent can be signified by the Minister if necessary. If this has not been done at Stage 1, or the Bill has been amended in a way which may alter the need for Crown consent, this should be signified during Stage 3 proceedings (after amendments have been disposed of). 6.97 Once amendments have been disposed of the Minister in charge of the Bill will propose that the Bill be passed by the Parliament. Then there is a short debate on the motion. This debate normally only lasts 25/30 minutes. The Minister is allocated 5 minutes to open this debate and 2/3 minutes to close. Bill Teams will need to prepare a “set piece” speech for the Minister on the motion and a wind-up speech for the end of the debate. 6.98 Consideration of amendments and the debate that the Bill be passed may, unusually, be held on different days. This can be arranged in advance or by a motion immediately after consideration of the amendments (Rule 9.8.5C and .5D). Please liaise closely with the office of the Minister for Parliamentary Business. 6.99 Where the Bill has been amended at Stage 3 or on reconsideration (see below), a further print of the Bill “As Passed” or “As Approved After Reconsideration” will be published by the parliament, still with provisions numbered as they were when the Bill was introduced. Provisions which have been amended at Stage 3 (or on reconsideration) will be indicated by a line in the margin of the text. 6.100 When a Bill is passed, or if it has been reconsidered, Michael Abell, Legislation and Parliamentary Liaison Team should be informed in order that he can inform all UK Government Department contacts. As the 4 week period during which the Law Officers or Secretary of State can intervene begins with the passing of the Bill, he will arrange this as soon as the print of the Bill “As Passed” is ready. If this print is not available within a few days after passing, UK Government department contacts will be notified that the Bill has been passed and directed to the appropriate website where the Bill will become available in due course. Reconsideration Stage 6.101 Rule 9.9 deals with the circumstances under which Bills which have been passed can be reconsidered. Bill Teams will wish to note that once passed a Bill can only be reconsidered and amended to resolve:

• a decision reached by the Judicial Committee of the Privy Council that the Bill, or a provision within it, is not within the legislative competence of the Parliament; or

• An order made by the Secretary of State under section 35 of the Scotland Act 1998 where he or she has reasonable grounds to believe that the Bill would be incompatible with any international obligations or the interests of defence or of national security or, that the Bill makes modifications to the law as it applies to reserved matters and the Secretary of State has reasonable grounds to believe that such modifications would have an adverse effect on the operation of the law as it applies to reserved matters.

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6.102 A Bill that is reconsidered after it has been passed may be amended to the extent allowed under Rule 9.9.4. Royal Assent 6.103 Bills may only be submitted for Royal Assent by the Presiding Officer. The Bill Team does not need to do anything.. 6.104 Bill Teams must allow for at least a 4-week gap between the date when they expect the Parliament to approve the Bill and the date Royal Assent is granted to allow for possible legal challenge on the grounds of legislative competence. In particular, the Attorney General, the Advocate General for Scotland or the Lord Advocate can refer the Bill to the Judicial Committee of the Privy Council for a ruling on legislative competence (section 33, Scotland Act refers) and the Secretary of State’s powers of intervention under section 35 could be used. 6.105 Bill Teams will wish to note that this potential 4-week delay can be shortened, or avoided, if the Law Officers and Secretary of State give notice that they do not intend to refer the Bill to the JCPC or to make an order under section 35. The Law Officers have indicated that such shortening of the 4-week period is to be the exception rather than the rule. The mechanism should only be used where there is a demonstrable need to obtain Royal Assent quickly (e.g. for an Emergency Bill). Bill Teams are encouraged to ensure that the relevant UK Government departments are kept advised of the Bill’s progress so that the UK Government will be better disposed to assist. 6.106 The fact that the Lord Advocate may refer a Bill to JCPC may appear odd, given that he is a member of the Scottish Government. However, this does provide a mechanism for any question of legislative competence to be conclusively determined at this stage, rather than waiting until a devolution issue is raised at a later date. It is expected that this will be a rare event, and will only occur when the Government has lingering doubts as to the legislative competence or where a non-executive amendment has been passed that the Government considers to be outside competence. It should be noted that, where the mechanism described above is used to shorten the 4-week period between passing of the Bill and Royal Assent, the Lord Advocate is one of the Law Officers who must give notice that he does not intend to refer the Bill to the JCPC, even though the Lord Advocate will have been involved throughout the passage of the Bill. 6.107 It may also be presentationally attractive in other cases for a reference to the JCPC to be made by the Lord Advocate rather than the UK Law Officers, as this may reduce any impression of conflict between the respective governments. 6.108 The Keeper of the Registers of Scotland will simultaneously, by e-mail, notify the Offices of the Presiding Officer and the Minister for Parliamentary Business that Letters Patent have been sealed, that being the last stage of the Royal Assent process. The Office of the Presiding Officer will then notify, amongst others, the Committee Clerk and the Astron representative in the Parliament. The Minister for Parliamentary Business’ Office will inform the Bill Team and Legislation and Parliamentary Liaison

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Team that Royal Assent has been granted. It is the responsibility of the Committee Clerk to arrange for the Act to be published and printed but Astron will have been given notification that the Bill has Royal Assent and that they will soon receive the final text for printing and publishing. It is worth noting that publication does not occur immediately after Royal Assent and can take anything up to a week. It is important to ensure that updated Explanatory Notes to the Act are ready for publication upon or very shortly after publication of the Act. See paragraph 7.2 for further details. Proof Reading 6.109 This is a major task at several stages during a Bill. The Clerks expect the Bill Team to carry out thorough checking, and it has been the experience of some teams, that they are likely to provide drafts for comment at short notice. The task of proof-reading is particularly important before Royal Assent when the Bill is re-numbered to take account of additional/deleted sections schedules etc.

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Chapter 7 ACTION FOLLOWING ENACTMENT OF A BILL Powers of Intervention of the UK Government 7.1 In addition to the powers under section 33 of the Scotland Act for a Bill to be referred to the JCPC (see paragraph 4.58), the Secretary of State may, by order under section 35, intervene to prevent the submission of a Bill for Royal Assent if he has reasonable grounds to believe that: • any of its provisions would be incompatible with international obligations or the interests of defence or national security; • if it makes modifications of the law as it applies to reserved matters (which it might do in consequence of making provision about non-reserved matters); and • he has reasonable grounds to believe that such modifications would have an adverse effect on the operation of the law as it applies to reserved matters. 7.2 Again, there should be early consultation with UK Departments to minimise the likelihood of such perceived adverse effects arising. Royal Assent 7.3 The Presiding Officer submits Letters Patent with a copy of the Bill to the Palace authorities for Her Majesty's signature, usually after the Law Officers have confirmed that they are satisfied as to the legislative competence of the Bill, as noted above. Thereafter, the Letters Patent are sent to the Keeper of the Registers of Scotland for the Great Seal to be affixed and recorded in the Register of the Great Seal. It is upon the date of recording that Royal Assent is deemed to have been given. The Keeper of the Registers thereafter notifies the Presiding Officer and the Minister for Parliamentary Business. The Minister for Parliamentary Business’ Office thereafter immediately notifies the Bill Team and the Legislation and Parliamentary Liaison Team. The date of Royal Assent of a Bill is published in the Business Bulletin. See paragraph 4.91 for hastening Royal Assent. Printing of Acts of the Scottish Parliament 7.4 Once a Bill has received Royal Assent, the resulting Act of the Scottish Parliament (ASP) will be published by the Queen’s Printer for Scotland. The legislative text will appear in the same form as in the Bill, while the overall presentation of the ASP will be similar to that of current Acts of Parliament. Where, on an Act of Parliament, the Royal Arms appear, the Scottish form of the Royal Arms will appear on an ASP. Each ASP will be assigned an “asp number” in place of a chapter number, and there will be an enactment formula giving the date on which the Bill for the ASP was passed or approved by the Parliament and the date on which it received Royal Assent. Acts appear on the Office of Public Sector Information website and will be include in the Statute Law Database.

http://www.opsi.gov.uk/legislation/scotland/s-acts.htm

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Explanatory Notes 7.5 The Explanatory Notes which accompanied the Bill through its Stages should be updated for publication by the Government in the form of Explanatory Notes to the Act (see Annex 5 for further details). The Notes should be updated to take into account amendments made during the passage of the Bill including any renumbering and consequential changes cross referencing and must be cleared with the Solicitor and Counsel. The Notes should include a final table listing the dates and Official Report references for each Stage of the Parliamentary proceedings on the Bill including proceedings before every Committee which considered the Bill at Stage 1. There should be references to any published reports of those Committees e.g. the Stage 1 report from the lead Committee. This is extremely useful for the reader of the Act trying to trace the history of a particular provision and what was said about it during the passage of the Bill. 7.6 The Explanatory Notes should normally be ready to be printed at the same time as the Act is printed (certainly not before Royal Assent) and should be sent directly to the Queen’s Printer for Scotland (by email to legislation@nationalarchives.gsi.gov.uk) for publication on behalf of the Government to appear alongside the Act on the Office of Public Sector Information website. Circulars 7.7 Acts affecting the power or duties of local authorities or other bodies will normally be the subject of a circular to them, which should be issued as soon as possible after Royal Assent has been given to the Bill. As those affected by the legislation will have been involved in the legislative process from the initial consultation stage on the draft Bill the likely impact of the legislation should already be known to them. 7.8 The circular should explain the main provisions of the Act, without purporting to give an authoritative interpretation of it, and should, in particular, draw the attention of the recipients to any new duties placed on them, and changes in their powers. It should also indicate, if possible, how the Scottish Ministers propose to exercise their powers and duties. 7.1 On completion of the passage of a Bill through the Parliament, but prior to Royal Assent, confirmation should be given to Crown Office of any provision being brought into effect, whether by the Act itself, a commencement order, or by a substantive statutory instrument, which could have implications for criminal proceedings. This information should be sent to the Crown Agent at the Crown Office, 25 Chambers Street, Edinburgh, EH1 1LA. Telephone 0131 226 2626: Fax 6564. Forms 7.9 Forms may have to be designed for completion either on behalf of statutory bodies or by members of the public. The difficulty of designing them so that they cover all necessary points without becoming unintelligible or impossibly cumbersome

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is notorious. Guidance is set out in Administrative Forms in Government. An important element in producing good forms is the early involvement of design specialists when drawing up new forms or revising existing ones. All forms should be pre-tested with a representative sample of users before being issued and all forms to be sent to businesses should be cleared with the “Departmental Forms Gatekeeper” – contact the Public Bodies and Agencies Unit for further information. Commencement Orders 7.10 Where the Act provides for provisions in it to be brought into force by Commencement Order, the number of Orders made and of commencement dates specified should be kept to the minimum practicable. Every effort should be made to rationalise their preparation and issue. It is undesirable for Orders bringing into operation different sections of the same Act to be made within short intervals of each other, and for there to be too many different commencement dates. Where several parts of the Government are responsible for the commencement of different parts of the Act, one should be designated as the lead Division and should ensure that arrangements are co-ordinated. 7.11 Commencement orders are not subject to parliamentary procedure, but as a matter of courtesy copies should be provided to the Parliament. However, they fall within the remit of the Subordinate Legislation Committee, which scrutinises statutory instruments even though they are not subject to parliamentary procedure. Separate guidance on commencement orders (including the numbering of series of such orders and arrangements for providing them to the Subordinate Legislation Committee) is available in the Guide to Scottish Statutory Instrument Procedure on the intranet.

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Chapter 8 BUDGET, EMERGENCY, MEMBER'S, COMMITTEE, AND OTHER TYPES OF BILLS 8.1 This Chapter, in particular, provides guidance on the handling of Bills introduced to the Scottish Parliament by Members who are not Members of the Scottish Government. It also briefly covers other types of Bills that Government officials may encounter where different procedures apply. Member’s Bills 8.2 Rule 9.14 sets out the procedures to be followed in relation to Members Bills. The Rule permits a Member to introduce no more than two Bills in a session of the Parliament. There is, therefore, potential for a very large number of Members Bills to be introduced in each four year session. In particular, the Government needs to be able to set out its position in detail to the Parliament at an early stage (including an assessment of the Bill's financial implications), to build support for its position and, where it is opposed in principle, to secure a vote to that effect in the Parliament. The following paragraphs describe the Parliamentary procedures and the steps which need to be taken by the Department with the lead interest in the Bill. Lodging of Proposal/Introduction of Members Bills 8.3 There are two routes by which a Member may seek to introduce a Bill, viz:

• where a Member arranges for a Bill to be prepared (a “Member’s Bill”) or

• where a Member submits a proposal for a Bill to the Parliamentary Bureau, the proposal is considered by the relevant committee and Parliament and a Bill subsequently commissioned by the Committee Convener (a “Committee Bill”, but counts as a Member’s Bill for the purpose of the quota of two per session).

8.4 Any MSP who is not a member of the Government can propose a Member’s Bill. A draft proposal is printed in section G of the Business Bulletin for one day. Thereafter, in most cases, a consultation document is issued seeking comment and views. At the end of the consultation period (or after it has been agreed that no consultation is needed), the MSP can lodge a final proposal, which, too, is printed in section G of the Business Bulletin for a month. The Member may introduce a Bill to give effect to the final proposal at any time during the 4-year session, provided that within one month the proposal attracts support from no fewer than 18 MSPs from at least half the political groups represented in the Parliamentary Bureau, and that the Government does not indicate that they will bring forward their own legislation with similar effect within the current session at Holyrood or via UK legislation within the current or next session in the UK Parliament. The proposal process is outlined in a flow chart at Annex 3.

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Member Lodges Draft Bill Proposal 8.5 In the first case the initial step is for the Member to lodge with the Clerk i.e. the Chamber Office a draft proposal consisting of the proposed short title and a brief explanation of the purposes of the proposed Bill, together with either –

• a consultation document prepared as the basis for a public consultation on the policy objectives of the proposed Bill; or

• a written statement of reasons why, in the Member’s opinion, a case for the proposed Bill has already been established by reference to specified published material and that consultation on the draft proposal is therefore not necessary.

8.6 The draft proposal then appears in the Business Bulletin, together with the Member’s name, the date it was lodged and either –

• the dates on which the consultation period begins and ends; or

• information about where copies of the Member’s statement of reasons may be obtained.

8.7 The draft proposal is then referred by the Parliamentary Bureau to a Committee within whose remit the subject matter of a draft proposal falls. Where a draft proposal is accompanied by a statement of reasons and referred to a Committee, the Committee may, within one month, consider the statement of reasons and decide if it is satisfied with the statement and reasons given by the Member. If the Committee decides that it is not satisfied with the reasons given by the Member for not consulting, the proposal falls unless the Member, within 2 months, lodges with the Clerk a consultation document. Member Lodges Final Bill Proposal 8.8 The Member who lodged the draft proposal may, at any time (during the same session), lodge a final Bill proposal but only after –

• the end of the consultation period;

• the end of the period of one month referred to paragraph 8.9; or

• the Committee decides that it is satisfied with the reasons given by the Member for not consulting on the draft proposal.

8.9 Once the final Bill proposal is lodged, the Government has one month from the date of the final Bill proposal to notify the relevant Member and Clerk of the Parliament that it intends to bring forward Government legislation at Holyrood in the current session or that the UK Government intends to do likewise in the UK Parliament in their current or next Session, or that it intends to waive that right. The Minister should make recommendations to the Cabinet Sub-Committee on Legislation (CSCL) whether to support or resist the Bill or, where circumstances support it, to defer making a final decision pending further information such as the outcome of Government consultations.

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8.10 If the proposal fails to attract the support of 18 other Members within the month, it falls, and a similar proposal may not be lodged by any Member during the same session within 6 months of that proposal falling. 8.11 If at least 18 other Members from at least half the political groups represented in the Parliamentary Bureau indicate support, the right to introduce a Bill to give effect to the proposal may only be exercised until the end of September in the calendar year preceding that in which the next Scottish Parliamentary election is due to be held. 8.12 When the Bill is introduced by the Member it should, unless the Parliament has agreed otherwise, be accompanied by a statement by the Presiding Officer on legislative competence, a Financial Memorandum, and a report from the Auditor General if it contains any provision which involves a charge on the Scottish Consolidated Fund. The Bill should also be accompanied by Explanatory Notes explaining briefly what the Bill does and a Policy Memorandum. Once the Bill is introduced, the Parliamentary Bureau must refer the Bill to a lead Committee, and can set a deadline for completion of the Committee’s Stage 1 report on the general principles of the Bill. In setting the deadline for the Stage 1 report, the Bureau is expected to take account of the other workload of the Committee. 8.13 It should not be the normal practice for the Government to promote legislative proposals by means of Member's Bills, as no separate Parliamentary time is available for consideration of such Bills; indeed Government and Member’s Bills compete for the time available. Against this background, and with due regard to collective Cabinet responsibility, Ministers should not offer support to any Member's Bill, or proposal for a Bill, before the Government’s position is considered collectively and agreed by Cabinet. In the event of any uncertainty about the procedures to be followed in any case, the Minister for Parliamentary Business’ Office will be ready to advise. 8.14 In addition it may be that, prior to the Introduction of the Bill, the Executive is asked by or on behalf of the Presiding Officer for the Government’s view upon the legislative competence of the Bill. This may be for the purpose of informing the Presiding Officer as to the Government’s view before he gives his opinion under section 31(2) of the Scotland Act as to whether or not the provisions of the Bill are within the legislative competence of the Parliament. Counsel should be consulted as soon as a draft Bill is available. Counsel can advise on the adequacy of, or deficiencies in, the Bill and, if the Government is considering supporting the Bill in principle, can indicate what would require to be done to put the Bill into a fit state to be enacted. 8.15 It will be appreciated that this is a different situation from the position with regard to Government Bills or Member’s Bills which have been drafted with Executive support. The usual practice in such cases is for the Government to give its formal view having taken into account any views expressed by the Scottish Law Officers. SGLD/OSPC may find it helpful on occasion to send an informal note in confidence to the Parliament’s Director of Legal Services, or to arrange an informal discussion, as a preliminary to reaching a final view.

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Allocation of Responsibility within the Government 8.16 Unlike Government Bills, for which there will be a clearly identifiable lead Division or a Bill Team, responsibility for dealing with a Member’s Bill or a Committee Bill may not be immediately apparent. Legislation and Parliamentary Liaison Team will alert the appropriate Minister and Department (copy to relevant officials where known) to the draft Bill proposal to enable them to reach a preliminary view on the proposal in the first instance. If there is any doubt about who takes on the lead role, this should be discussed at official level initially with Legislation and Parliamentary Liaison Team. Once the final Bill proposal is lodged, Legislation and Parliamentary Liaison Team will commission a paper for consideration by the Cabinet Sub-Committee on Legislation (CSCL) setting out the background and recommended handling including whether to resist or support the Bill, and whether alternative Executive or UK legislation is planned. Where circumstances support it, a final decision may be deferred until further information becomes available and the Bill is introduced but it is important that the Government reaches a clear view when submitting its Memorandum and before the Stage 1 debate. The CSCL decision will be conveyed to the lead Minister and copied to Cabinet members who will have a short period to raise any objections to the CSCL decision. 8.17 If alternative legislation is proposed that decision must be conveyed to the Clerk of the Parliament (Head of the Non- Government Bills Unit) and to the relevant MSP within one month from the date of lodging the final Bill proposal, in which event the Bill will fall. 8.18 The lead Division within the Government is also responsible for ensuring that Legislation and Parliamentary Liaison Team is informed of all the relevant stages of the Bill so that UK Government Departments and the Scotland Office can be informed. Government Memorandum 8.19 Once the Bill is introduced, Legislation and Parliamentary Liaison Team will invite the lead Minister to submit a Memorandum to the lead Committee within 10 days setting out the Government’s views on the Bill with suggestions on how it should be handled and indicating whether the Government intends to support or resist the Bill. 8.20 The Memorandum should seek to ensure that the proposal is subject to proper pre-legislative scrutiny. It should comment on the consultation undertaken by the Member, recommend organisations who should be consulted or further consulted, give a view on how practicable the proposals are in practice, suggest alternatives, and give an indication of the likely costs. It will be important to comment on the Financial Memorandum accompanying the Bill, particularly if the Memorandum is considered to lack rigour or substance. The Finance Committee and the lead scrutiny committee should be encouraged to examine the proposals carefully. 8.21 Where the Government is opposed in principle to the Bill, the Memorandum should make that clear. If it is clear that the Government is opposed in principle to the

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Bill, it is open to the Government to oppose the motion for approval of the Bill when it is considered by the Parliament. Advice on this should be submitted to Ministers at the same time as a draft of the Government ’s Memorandum. These options should be considered in all cases where it is clear that the Bill should not enjoy the Government’s support. Parliamentary Consideration 8.22 Once the Bill is printed, the Parliamentary Bureau refers it to a lead Committee to consider and report on the general principles of the Bill (Stage 1). The Committee will recommend to the Parliament whether the general principles of the Bill should be agreed. Once the Committee has so reported, the general principles of the Bill will be considered by a meeting of the Parliament. It will be for the Parliamentary Bureau to schedule the debate. If at that Stage the general principles of the Bill are not agreed to, the Bill falls. If on the other hand the general principles are agreed to, the Bill will proceed to detailed consideration in Committee (Stage 2). 8.23 The Government could also move that the Bill be referred back to the lead Committee for a report on its general principles. If the Committee has not considered a Bill in as much detail as the Government considers is necessary, Ministers may wish to press for it to be referred back to the Committee. If not previously considered by CSCL, the lead Minister should write in the first instance to the Minister for Parliamentary Business (and others with an interest) giving reasons why he or she thinks that is the correct course of action. It may be necessary to obtain the views of other Ministers beforehand. Committee Consideration of Member’s Proposal where the Member has not Prepared a Bill 8.24 As an alternative to lodging a proposal to introduce a Bill and preparing a Bill, a Member may submit a draft proposal to the Parliamentary Bureau. The Parliamentary Bureau must refer the proposal to the Committee within whose remit it falls. The Committee must then consider the proposal and conclude either that no further action is required, in which case the proposal falls, or prepare a report for consideration by Parliament. Again it is for the Committee to consider how much work it does in preparation of its report. If the proposal is agreed to by the Parliament, the Convener of the Committee must wait at least 4 sitting days before instructing that a Bill be prepared or a Bill be introduced if one is already available. Subject to the paragraph below, the Bill would be introduced as a Committee Bill. 8.25 It is however open to the Government to notify the Convener and the Clerk within 5 sitting days of the Parliament agreeing to the proposal for a Bill that it intends to bring forward legislation. Use of this procedure may be necessary where Ministers conclude that the introduction of an Government Bill is unavoidable, e.g. because of technical defects in the Member’s draft Bill which the Government supports in principle, and they wish to control the timetable for the legislation. Where the Government gives such a commitment, it need not specify a time by which the Bill will be introduced – it will be for the committee to pursue the matter if no Bill is

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forthcoming within a reasonable time. It is open to the Executive to go out to consultation, if the proposal has received Government support, cleared with Cabinet. 8.26 The consideration of the proposal by the Committee will be the only opportunity for the Government to make its views known before the Parliament debates the proposal at Stage 1. The lead Minister should therefore submit a paper to the Cabinet Sub Committee on Legislation recommending a Government line and for the submission of a Memorandum to the Committee in the same way as for a Member’s Bill noted above. Financial Resolutions for Members Bills 8.27 The need for a Financial Resolution or Crown consent may arise in connection with a Member’s Bill (or a Committee Bill and a Private Bill). Where a Bill (or amendment to a Bill) contains provisions which –

• introduce new, or increase existing, expenditure charged on or payable out of the Scottish Consolidated Fund, or

• impose or increase any tax or charge or otherwise require any payment to be made,

no proceedings may be taken on the Bill or the amendment at any Stage after Stage 1 unless the Parliament has by resolution agreed to the expenditure. 8.28 It is for the Presiding Officer to decide whether a Financial Resolution is required and where it is, he will write to the member in charge of the Bill (or the Convener in the case of a Committee Bill) advising that the member needs to ask the Government to lodge a motion for the Financial Resolution. The letter will be copied to the Cabinet Secretary for Finance and Sustainable Growth. Only a Cabinet Minister or Junior Minister may lodge and move a motion for a Financial Resolution. The motion may not be amended. Failure to do so within 6 months of the completion of Stage 1 will result in the Bill falling. 8.29 Where the Government supports a Member’s Bill (or Committee Bill), the Division responsible for overseeing the Bill should take responsibility for ensuring that a motion for a Financial Resolution is prepared in advance. This is drafted by Counsel, usually in narrow terms, and should be cleared with the relevant Finance Team and finally with the Cabinet Secretary for Finance and Sustainable Growth. The motion should not be lodged in advance of the Stage 1 debate. If the Bill is agreed to by the Parliament at Stage 1, and the Minister for Parliamentary Business has given permission, the motion should then be lodged in the name of the Minister for Finance and Public Service Reform. Further information on Financial Resolutions is to be found at paragraph 6.22 and paragraph 8.27. 8.30 If the Government does not support the Bill, the issue of whether or not to agree to move a Financial Resolution will need careful handling, as without a Financial Resolution being lodged and agreed within 6 months of the completion of Stage 1, the Bill falls. In these circumstances, the Division responsible for overseeing the Bill should clear a draft paper to the Cabinet Sub-Committee on Legislation (CSCL) with the responsible Minister, the Minister for Finance and Public Service

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Reform and the Minister for Parliamentary Business drawing attention to the need for a Resolution and the consequences for the Executive. Ministers and the CSCL will need to weigh the political implications of not lodging and moving a motion for a Financial Resolution (in effect, killing the Bill) alongside the convenience of avoiding unwelcome financial implications. This will be particularly true of Bills enjoying popular support in the Parliament. The paper should discuss any possibility of subsequently amending the Bill in such a way as to make the moving of a Financial Resolution more acceptable. Crown Consent 8.31 Crown consent may be required in connection with a Member’s Bill or a Committee Bill in the same way as for an Government Bill. However, individual Members or Committees cannot obtain Crown consent themselves and must therefore ask the First Minister to do so on their behalf. Although the Government may not approve of the content of the Bill, it would be extremely discourteous to refuse such a request and the Government should therefore provide assistance to the Member/Committee in obtaining Crown consent. 8.32 Further details on the procedures for obtaining Crown consent are to be found at paragraph 4.128. Committee Bills (Rule 9.15) 8.33 Rule 9.15 allows a Committee to make a proposal for a Bill in relation to competent matters within that Committee’s remit. 8.34 The Committee may establish the need for a Bill by, for example, holding an inquiry. It then reports to the Parliament with a recommendation to legislate and an accompanying Financial Memorandum and, usually, a Policy Memorandum and Explanatory Notes. Where a Committee makes a proposal, Rule 9.15.6 requires time to be allocated for consideration of the proposal by the Parliament. This will be arranged by the Parliamentary Bureau. (See also paragraph 8.7 where the Committee considers a draft proposal for a Bill). 8.35 If the Parliament agrees to the proposal, almost certainly on the basis of support from the Government, a 5 day period is provided during which it is open to a member of the Scottish Government to notify the Convener and Clerk in writing that an Government Bill will be introduced to give effect to the proposal. In such a case, the Government would be expected to take on any proposals to which they have agreed in principle in plenary. Standing Orders do not impose any requirement for the timing of introduction of such a Bill, but the Government should expect to introduce it as soon as possible and certainly within 6 months of giving the undertaking and be in a position to demonstrate progress on the matter if Introduction is not achieved rapidly. 8.36 If the Government does not indicate that it will introduce an Government Bill with equivalent purposes, the Convener of the Committee can instruct the drafting of the Bill to give effect to the proposal and introduce the Bill. The Bill will then be

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referred straight to the consideration of its general principles in plenary, without the need for a report from Committee (as would be required for other types of Bill). 8.37 As with a Member’s Bill, it will be necessary for the Division responsible for overseeing the Bill to obtain the agreement of the Cabinet Sub-Committee on Legislation to the Government’s position on whether the Bill should be supported or resisted. Following the CSCL's decision, the relevant Minister (in consultation with the Minister for Parliamentary Business) will require to submit an Government Memorandum setting out the Government's view on the Bill. It will be important also to comment on the Financial Memorandum accompanying the Bill, particularly if the Memorandum is considered to lack rigour or substance. The Finance Committee and the lead scrutiny committee should be encouraged to examine the proposals carefully. 8.38 A flow diagram illustrating a Committee Bill’s journey through the Parliament can be found at Annex 3. Budget Bills (Rule 9.16) 8.39 Rule 9.16 sets out the procedures for Budget Bills which run to an accelerated timescale and differ from the process for other Government Bills in the following ways. The annual budget process begins in March with the publication of the Government’s Annual Evaluation Report (in Spending Review years). In non Spending Review years, a truncated budget process is followed, which begins with the Government’s Draft Budget in September (normally Stage 2 of the budget process). There follow committee reports to the Parliament culminating in a Finance Committee Debate before the Bill is introduced, in the following January. A Budget Bill is defined by section 29(3) of the Public Finance and Accountability (Scotland) Act 2000. A Budget Bill may only be introduced by a member of the Government (i.e. Cabinet Minister) and there is no requirement for it to be accompanied by a Financial Memorandum, Explanatory Notes or a Policy Memorandum. The Bill is referred immediately for a Stage 1 plenary debate without the need for a Stage 1 report. The Bill is also referred to the Subordinate Legislation Committee for consideration of its powers to make subordinate legislation, which requires to report before Stage 3. Stage 2 is taken in the Finance Committee. Amendments may only be lodged and moved by the Government. Stage 3 may not begin until 20 days after introduction and must be completed no later than 30 days after introduction, otherwise the Bill falls. The compressed timetable is to make sure, as far as possible, that the Bill comes into effect before the start of the financial year to which it refers (though there are contingency arrangements should this not be the case). Emergency Bills 8.40 As the name suggest, Emergency Bills are Government Bills that need to be enacted more quickly than the usual process allows, e.g. to promptly amend the law in response to Court decisions which have exposed loopholes or misinterpretations. (The first Bill that the Parliament passed – Mental Health (Public Safety and Appeals) (Scotland) Bill – was treated as an Emergency Bill). It will be necessary to make early arrangements to secure a shortening of the usual period between passing the Bill

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and Royal Assent (see paragraph 6.92 and paragraph 6.93) and between Royal Assent and commencement (see paragraph 4.90). It is usually possible for OSPC to negotiate a shortening of the standard 3-week pre-introduction period. 8.41 Such a Bill is first introduced as an Government Bill and upon Parliament’s approval to a motion by a Cabinet or junior Minister the Bill is treated as an Government Bill in accordance with Rule 9.21. The usual accompanying documents are required as for any other Government Bill, unless Parliament agrees to waive these. However, the usual level of consultation is not appropriate in such cases, but see paragraph 4.18. The timetable is considerably shortened in that all stages of the Bill (to be timetabled by the Parliamentary Bureau) are taken on the same day that the motion is approved, unless the Parliament decides otherwise on a motion by the Bureau. At Stage 1, the Bill is referred immediately to the Parliament for decision on the Bill’s general principles (i.e., the Bill is not allocated to a Committee for consideration and report); Stage 2 is taken by a Committee of the whole Parliament; and Stage 3 is the usual consideration and decision by the whole Parliament. There may be benefits in the Bill being considered over a slightly longer period to ensure that the objectives sought will be achieved by the Bill. 8.42 Different arrangements apply for lodging and selecting amendments in this shortened timetable. Where Stage 2 of an Emergency Bill is taken less than two days after the completion of Stage 1, the normal procedures for lodging amendments cannot be followed (since any amendment submitted would not conform to Rule 9.10.2) and only manuscript amendments (under 9.10.6) may be moved. The effect of this is to apply a form of selection of amendments to expedited Emergency Bills, since manuscript amendments may be moved only if the Convener – in this case, the Presiding Officer as Convener of the Committee of the Whole Parliament – considers them sufficiently important. Alternatively, however, the Parliament may suspend Rule 9.10.2 to allow non-manuscript amendments to be lodged at less than two days’ notice. Similarly, where Stage 3 of an Emergency Bill is taken less than three days after the completion of Stage 2, then (unless the relevant Rules are suspended) only manuscript amendments may be lodged, given the notice required under Rule 9.10.2A. 8.43 If an emergency arises when Parliament is in recess the Presiding Officer may re-convene Parliament under Standing Orders rule 2.2.10. The decision to recall Parliament is for the Presiding Officer alone but it would be extremely unlikely that he would refuse such a request from the First Minister. In practice, the views of all Party Business Managers would be sought on both the recall and the proposed handling arrangements for the Bill. There is no power to recall Parliament during a period of dissolution. If an emergency arises during dissolution the only means of securing a Bill would be to ask the UK Government to bring forward legislation in the UK Parliament or to extend their own Bill to Scotland. Although the Sewel convention provides that the UK Parliament would not normally legislate on devolved matters without the consent of the Scottish Parliament, this course may be appropriate in extreme circumstances.

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Private Bills (Rule 9A) 8.44 These are Bills introduced by an individual person, a body corporate or an unincorporated association of persons (known as the “promoter”) for the purpose of obtaining for that promoter particular powers or benefits in excess of or in conflict with the general law. These include Bills relating to the estate, property, status or style, or personal affairs of the individual/group. Details of the procedures governing Private Bills can be found in the Parliament’s guidance and advice can be had from LPS-Legislation Unit. Consolidation Bills (Rule 9.18) 8.45 The purpose of a Consolidation Bill is to restate existing law, whether or not with amendments to give effect to recommendations of the Scottish Law Commission or of the Scottish Law Commission and the Law Commission jointly. Bills, which restate the law more generally, including the common law and/or case law, are known as Codification Bills. 8.46 Such a Bill should be accompanied by tables of derivations and destinations showing where provisions in it have come from and where provisions in existing law are now to be found and a statement on legislative competence. The usual accompanying documents are not required. 8.47 Once a Consolidation Bill has been introduced in the Parliament the Parliamentary Bureau will propose the establishment of an ad hoc Committee to consider the Bill. Where possible at least one member of this Committee will be drawn from amongst the members of a Committee within whose remit the subject matter of the Bill falls. 8.48 At Stage 1 of a Consolidation Bill the Consolidation Committee (as opposed to a lead Committee) considers and reports on whether the law which is restated in the Bill should be restated. Once the Consolidation Committee has reported Parliament decides (without debate) whether the law should be restated. Unless the Parliament agrees that the law should be restated as in the Bill, the Bill falls. 8.49 The Consolidation Committee also deals with Stage 2. No amendment may be made to the Bill which would cause it to cease being a Consolidation Bill. Therefore, any substantive new provision would be inadmissible but changes to the manner in which the law is restated would be admissible. 8.50 At Stage 3 the Parliament decides, without debate, on whether to pass or reject the Bill. Amendments can only be made at this stage if they are necessary to ensure that the Bill is an accurate restatement of the law or are necessary to give effect to any recommendations of the Scottish Law Commission or of the Scottish Law Commission and the Law Commission jointly. As a result, amendments at Stage 3 are likely to be limited to minor errors not previously corrected. 8.51 The first Consolidation Bill passed was the Salmon Consolidation (Scotland) Act 2003. Ministers agreed that it was appropriate for the Lord Advocate to be the lead Minister.

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Statute Law Repeals Bills and Statute Law Revision Bills (Rules 9.19 and 9.20) 8.52 Statute Law Repeals Bills are used to repeal spent enactments. They are dealt with in the same manner as Consolidation Bills although here the Committee is referred to as the Statute Law Repeals Committee. 8.53 Statute Law Revision Bills are used to revise statute law by repealing and re-enacting provisions as required. These too are dealt with in the same manner as Consolidation Bills. Here the Committee is referred to as the Statute Law Revision Committee.

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Annex 1 BRIEFING AND FILING SYSTEMS Systems for Preparing Briefing The key to the success of this operation (especially in a large Bill) is a database or spreadsheet to track the amendments received and the briefing required. This can show as little or as much information as you require, but a basic minimum would be the amendment number, the section it applies to; the person dealing with it; whether the briefing has been received and what the outcome in debate was (i.e. withdrawn, not moved etc.). You can then add to this system as you see fit. It is worth noting that amendments often change number from their first draft to the one which is lodged and this can be very confusing without an adequate system for tracking them under their different numbers/labels. Model forms, explanatory note templates etc are available from Legislation and Parliamentary Liaison Team as and when required. Commissioning Briefing The most important thing to do on receipt of amendments is to get them into the hands of those who will be responsible for preparing the necessary briefing as quickly as possible. The policy interests responsible for each Government amendment should normally anticipate the need for briefing on these amendments, however, a formal request for briefing by the Bill Team when an amendment appears in the Business Bulletin may be useful. Receiving and Storing Briefing The receipt and collation of briefing may take place over a long period or it may be a manic rush to the finishing line. The latter will more often be the case and you need systems to handle the onslaught of what may be large amounts of briefing material in a short space of time. Filing For a major Bill it is recommended that the following series of files be opened:

1 Preliminary consideration of proposals for the Bill

2 Consultation on proposed Bill

3 Cabinet proceedings on Bill (subject to Rules on filing Cabinet papers)

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4 Accompanying Documents (Financial Memorandum, Explanatory Notes, Policy Memorandum and Ministerial Statement on Legislative Competence, Delegated Powers Memorandum etc.)

5 Stage 1

6 Stage 2

7 Stage 3

8 Royal Assent

9 Publicity

10 Action following the enactment of the Bill. When a Bill is large and complex it may be necessary to open separate files for each section. Each section file would include any representations relative to that section, and should show the history of the section through all stages. A minor Bill (e.g. one of a few sections) may be dealt with in a short series of files. The above may also be the case depending on the extent of the consultation undertaken in the pre-legislative phase. If a number of different approaches are used it will be helpful to have a file on each, e.g. questionnaires; open forums etc. During the frenetic period of Parliamentary stages it may be easier to retain working papers on temporary files. This gives you the flexibility to move papers around as their status changes (e.g. from “possible Executive amendment” to “Executive amendment made at Committee stage”). Example of a Method of Compiling and Storing Briefing

• Set up a Bill Team mailbox. Some teams have set up the alternative system of using a central person, instead of a mailbox, whose responsibility it is to keep track of briefing, and locate and store up-to-date versions of incoming briefing.

• All briefing e-mailed to the Bill Team mail box (or person), having been cleared by the solicitor.

• Briefing given a distinctive Bill Team footer and saved into a public folder organised by section. The spreadsheet/database tracking system should include the footers or file name of the briefing. Footers which are the same as the file names and can be determined from hard copies of the briefing or the tracker system will help everyone locate documents quickly and easily. Footers should be changed for successive drafts so it is clear which version is the most up to date.

• Briefing recorded on a tracker database and cover form attached to paper copy of briefing, this then put in a holding tray for checking by a member of the Bill Team.

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• Once checked for style and content, the amended briefing is put in the Minister’s folder tray. One copy is taken at this stage and placed in a buff folder for future copying purposes.

• Once complete the briefing is inserted into the folder, indexed as necessary (perhaps using card dividers and an index page) and given to the Minister. The remaining copy of the briefing is then used for repeat copying for the other folders. At this point consider how to handle changes made by the Minister after reading his/her folder.

• Once briefing has been debated a copy is kept, marked up with the date of the debate and stored.

• Store selected briefing and speeches on ERDM and remember to keep them up-to-date.

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Annex 2 GOVERNMENT BILLS – MAIN STEPS

Bill becomes Act of the Scottish Parliament

Finance Committee reporton financial provisions

Subordinate Legislation Committeeconsideration and report on use of

delegated powers

Bill rejected

Bill referred to SubordinateLegislation Committee if

delegated powers amended

Bill returned to Committeefor further reconsideration

(once only)

Bill reconsidered ifultra vires or section

35 order made

Bill rejectedStage 3: Debate (with possibility offurther amendments) and final vote in plenary

4 week gap

4 week period during which Law Officersmay refer Bill to JCPC or Secretary of State

can make order under section 35

Presiding Officer submits Bill for Royal Assent

Act comes into force

Stage 1: Lead Committee consideration and reporton general principles (other designated committees

may report to Lead Committee

Stage 1: Plenary debate and vote on generalprinciples and passes Financial Resolution

Stage 2: Bill referred to Lead Committee for detailed consideration (parts may

be referred to other committees)

Bill reprinted (if amended)

9 sitting days

11 sitting days

1-2 week gap(normally)

Executive consultationincluding preparation of draft Bill

Executive submits Bill with statement oflegislative competence to Presiding Officer

3 weeks before introduction

Decision from Presiding Officeron legislative competence.

Introduction of Bill with Accompanying Documents

Parliamentary Bureau refers Billto Lead Committee

NO

NO

YES

within 3 monthsof introduction

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Annex 3 STAGES IN PASSAGE OF A PUBLIC BILL

COMMITTEE draft proposal MEMBER EXECUTIVE

Before Stage 1

proposal falls

Committee Bill Member's Bill Executive Bill

Stage 1

Bill falls

amendments Stage 2

amendments

Stage 3

Bill falls

After Stage 3

amendments

Royal Assent

18 supporters in one month

and agree no Executive Bill?

Stage 1 debate (Parliament)

reference ororder made?

motion to approve Bill agreed to?

4 weeks for section 33 reference or section 35 order

reconsideration stage (Parliament)

Secretary of State

Law Officers

Bill falls

general principlesagreed to?

Stage 1 enquiry and report (committee)

Parliament approves proposal?

motion to pass Bill agreed to?

draft proposalwith consultation

documentor statement of

reasons

Committeeconsideration

proposal

final proposal

detailed consideration

futher detailed consideration

debate on passing Bill (Parliament)

YES YES

YES

Y

NO

NO

NO

NO NO

YES

YES

NO

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Annex 4 REQUEST FOR AGREEMENT TO INTRODUCTION OF THE BILL AND TO ITS INTRODUCTION DATE Title of Bill Responsible Minister Introduction Date Submission copied to First Minister, Deputy First Minister, Lord Advocate and other Ministers with portfolio interest, and Legislation and Parliamentary Liaison Team .

YES/NO

SUBMISSION ACCOMPANIED BY STATEMENT WHICH CONFIRMS:- POLICY APPROVAL Policy is consistent with that approved by the Cabinet YES/NO Provisions of the Bill have been agreed with all the other Ministers who have an interest

YES/NO

CROWN CONSENT Indication of whether Crown consent has been obtained if provisions affect, directly or by implication, the prerogative, hereditary revenues or the personal property or interests of the Crown

YES/NO

LEGISLATIVE COMPETENCE Law Officers have confirmed that Bill is within legislative competence YES/NO Ministerial statement on legislative competence has been prepared YES/NO Confirmation that no outstanding difficulties with UK Government departments

YES/NO

Bill and draft accompanying documents have been submitted to Parliamentary authorities and it is not envisaged that there will be any difficulty about the Presiding Officer giving a certificate that the Bill is within the legislative competence of the Parliament

YES/NO

HANDLING INFORMATION Preparedness of Bill Likelihood of need for Executive amendments to be moved during Bill's passage

YES/NO

Recommendation as to which Committee should be designated as lead Committee and which committees also have an interest

NAME CTTEE

Assessment as to whether Committee is likely to wish to take evidence on the Bill before reporting to Parliament for its Stage 1 consideration

Indication of whether a Financial Resolution is required ACCOMPANYING DOCUMENTS Ministerial statement on legislative competence YES/NO Financial Memorandum YES/NO Explanatory Notes YES/NO Policy Memorandum YES/NO Auditor General’s Report - if required YES/NO

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Annex 5 EXPLANATORY NOTES FOR BILLS AND ACTS The Bill Team is responsible for drafting the Explanatory Notes to accompany the Bill. The draft must be cleared by SGLD before they are sent to OSPC for any comments they may have. The final version should be sent to OSPC for sending to the Parliament alongside the Bill to which it relates. The notes for the Bill will be a Parliamentary document and the Parliamentary authorities will arrange publication together with the other accompanying documents. Crown copyright will be temporarily assigned to the Parliament while the Bill is before the Parliament. The note will be bound as a separate document and will also be made available on the Internet by the Parliament. Purpose of the Explanatory Notes The notes are not intended to be an exhaustive description of the Bill nor to be a substitute for it. Their purpose is to make the Bill accessible to readers who are not legally qualified and who have no specialised knowledge of the matters dealt with in the Bill, allowing them to grasp what the Bill does and how it does it. Status The Explanatory Notes do not form part of the Bill and are not amendable by the Parliament nor endorsed by it. They are not designed to resolve ambiguities in the legislative text – if ambiguities are identified as the Bill progresses, they should be removed by amendment. If a Bill is amended during Stage 2, the Bill Team will have to produce updated Notes, in the form of either revised or supplementary Notes, before Stage 3. Paragraph 6.73 gives further guidance on this. After Royal Assent, the final version of the notes will be published alongside the Act and should contain a list setting out the dates and Official Report references for all the parliamentary proceedings on the Bill, including proceedings before every Committee which considered the Bill at Stage 1 and references to any published reports of those Committees. If the notes are successful in the purpose of helping the reader, they are likely to be read by judges as well as by others. Occasionally it may be that the notes are referred to in litigation, in the same way that the Official Report is under the Pepper v Hart rule (see paragraph 5.42). The Policy Memorandum has also been relied upon by the Courts to assist in ascertaining the intention of the legislation and to enable them to ensure that the legislation was construed within competence (e.g., Flynn & Ors v HMA – Privy Council 18 March 2004 in respect of the Convention Rights Compliance (Scotland) Act 2001). So it will be important for those producing the notes to make sure that the notes do not mislead; and not to include material which seems to take the law further than the Bill or Act does.

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Revision of the notes can often be a bigger task then envisioned, especially if the Bill has been substantially amended. The amended version will again need to be checked by SGLD and OSPC. It is important that time is built in for this. Content of the Notes It is essential that the notes should be neutral in tone, as is the case for the explanatory memorandum they replace. They should not try to “sell” the Bill or the policy underlying it: any attempt to do so is liable to lead to the notes being rejected by the Parliamentary authorities. The Policy Memorandum which also forms part of the set of accompanying documents is the place for the Executive to justify its policy (see also ‘Status’ above). The Introduction All Explanatory Notes should begin with an Introduction which makes it clear that they have been prepared by the Department and do not form part of the Bill. The Introduction should take the following standard form, which is included in the template.

INTRODUCTION These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by the Parliament. The Notes should be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

Main Body of Explanatory Notes There are no fixed rules governing the contents of the body of the notes: exactly what is covered will depend on the Bill. However, they should usually contain the following: Summary and Background. This should give a reader without legal training and with no great knowledge of the matters covered by the Bill sufficient information to grasp the purpose of the legislation. This section should briefly explain what the legislation does and its purpose, including any relevant background, and describe in broad terms how the legislation goes about achieving its aims. Policy issues should not be discussed, but reference may be made to policy material (e.g. green or white papers; ministerial statements). A section which gives an Overview of the structure of the Bill (this may not be needed for short Bills).

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A Commentary section which gives more detailed notes on the legislation. The notes should not follow the format of the old Notes on Clauses for UK Parliament Bills, which typically provided a note on each clause in the Bill. For the Commentary, it is perfectly acceptable to have a single note covering a number of sections. If a section needs no comment, none should be made on it. In particular, do not draft notes which repeat or paraphrase the words in a section. The point of the commentary is to provide additional information, not to duplicate the legislation. You should use the commentary to provide background information which makes the legislation easier to grasp, by including, for example:

• factual background;

• cross-references to, and interaction with, other legislation;

• definitions of technical terms used in the Bill;

• illustrative examples of how the Bill would work in practice (e.g. how the Bill will affect a typical case; how the Department plans to use regulation-making power in the Bill)

• transposition tables should be added where the Act will implement EU Regulations

• it will often be helpful to include material from the discussions that have taken place during the drafting of the Bill if this provides further elucidation on the practical effect of the legislation which may be helpful for the user who will not have had the benefit of the internal exchanges that have led to the drafting of the final provisions.

The above is not a rigid list. Not all the material mentioned will be relevant to all Bills. And in the case of some Bills it may be appropriate to include material not listed above. For example, where a Bill textually amends existing legislation, it might sometimes be helpful to attach to the Explanatory Notes extracts of the legislation as they will read after the changes made by the Bill – if this is done, care should be taken that the effects of devolution are properly reflected in the text (e.g. so that it is clear where functions are now conferred on the Scottish Ministers). Handling Directorates will need to allow time for OSPC to comment on the draft Notes before they are finalised. You should discuss the timing of these notes with OSSE. Explanatory Notes for Acts As soon as the Bill has completed its passage through the Parliament, the Department should prepare a revised version of the Explanatory Notes, to accompany the ASP. In revising the Explanatory Notes to take account of changes to the Bill during its parliamentary passage, the Bill Team should use the electronic version of the Notes as published by the Parliament when the Bill was introduced or as updated after stage 2, which may differ in some respects from the last version held by the Bill Team. The

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Clerks are happy to e-mail a copy of that version to the Bill Team on request. Material other than the Explanatory Notes should be edited out of the Accompanying Documents e.g. the Presiding Officer’s Statement on Legislative Competence, when preparing for publication following Royal Assent. Compared with the Bill version, the following changes to the notes should be made:

• The header should be revised to refer in full to the short title of the Act with the ASP number in the line below.

• The notes should be updated to reflect any changes made in the Bill since the initial version of the notes were prepared.

• References in the note to the “Bill” should be changed to references to the “Act”.

• The Introduction to the notes (see above) should be revised to read:

INTRODUCTION These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament. The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

• The notes should end with a section giving references to the various stages of Parliamentary scrutiny.

After clearing the Explanatory Notes for the Act with OSPC, the Department should send the Act version of the Explanatory Notes by e-mail to the Queen's Printer for Scotland, who will arrange with Office of Public Sector Information for publication of the notes alongside the Act – also available on the Office of Public Sector Information website. The Clerk of the Parliament will have sent the Act in the usual way for printing. The e-mail address for the Queen’s Printer for Scotland can be found in the SCOTS address book in Microsoft Outlook.

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Annex 6 TIMETABLE FOR PREPARATION OF BILL Timetable for Preparation and Passage of a Bill – Key Milestones Note Ref. * KEY MILESTONES

DATE (insert target for

completion) 6 Publication of Consultation paper on general policy as

approved by Cabinet.

7 Policy Division completes policy instructions for SGLD.

11 SGLD completes drafting instructions to OSPC.

12 OSPC completes draft Bill.

20 Draft Bill and accompanying documents finalised and approved by lead Minister and others with an interest (including Cabinet Secretary for Finance and Sustainable Growth).

21 Final version of draft Bill signed off by First Minister

22 Final draft of Delegated Powers Memorandum approved by lead Minister and others with an interest.

23 Draft Bill and accompanying documents submitted to Presiding Officer.

24 Draft Delegated Powers Memorandum to Parliament’s Legislation Team (at least 1 week before introduction).

28 Bill with accompanying documents introduced to Parliament.

29 Delegated Powers Memorandum to Legislation Team for publication and submission to Subordinate Legislation Committee (day following Bill introduction).

42 Earliest commencement of Bill (at least 8 weeks after RA, except by agreement of CSCL– please specify if agreement required).

The timetable must first be agreed by the Bill Team, OSSE and OSPC and then cleared with LPS-CPS-

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Legislation Unit and PS/Minister for Parliamentary Business prior to submission to the lead Minister. If any departure is anticipated from the above dates Legislation Unit should be notified immediately, and a fresh timetable prepared and agreed by all parties, including the lead Minister.

Bill Team Leader SGLD

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Name: Lead Solicitor: Lead Draftsperson: Minister Senior Official

Name:

Lead Minister:

* The number in the first column corresponds with the attached detailed process and accompanying Notes.

TIMETABLE FOR PREPARATION AND PASSAGE OF A BILL (see guidance notes)

WORKING TITLE OF BILL:

MILESTONES

Target completion

dates

Step completed

( box) Pre-Parliamentary Stages

1 CSCL agrees slot in outline legislative programme. [CPS Leg Team to provide]

2 Cabinet approves CSCL provisional recommendation. [CPS Leg Team to provide]

3 Policy Division drafts consultation paper.

4 Consider financial arrangements with Finance team.

5 Cabinet approves consultation proposals.

6 Publication of Consultation Paper on general policy as approved by Cabinet.

7 Policy Division completes policy instructions for SGLD.

8 Cabinet approves CSCL recommendation of Bill’s firm place in legislative programme.

[CPS Leg Team to provide]

9 Consultation responses collated/analysed (this may be completed before steps 7/8 or ongoing during step 11).

10 Consider the need for orders under the Scotland Act 1998

11 SGLD completes drafting instructions to OSPC.

12 OSPC completes draft Bill.

13 Cabinet approves terms of draft Bill for consultation.

14 Second consultation (ideally) on draft Bill.

15 Second consultation responses collated/analysed.

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16 Cabinet agrees final policy proposals.

17

Policy Division drafts accompanying documents, notably Explanatory Notes, Policy Memorandum and Financial Memorandum; also draft Delegated Powers Memorandum, as appropriate.

18 Financial Memorandum cleared with Finance.

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MILESTONES Target

completion dates

Step completed

( box) 19(a)

Officials Bill Management Meeting (mandatory) on state of readiness for introduction (Bill Teams should discuss with CPS Legislation Team).

19(b)

Ministerial Bill Management Meeting (mandatory) on state of readiness for introduction (Bill Teams should discuss with CPS Legislation Team).

20 Draft Bill and accompanying documents finalised and approved by Cabinet Secretary / subject Minister and others with an interest (including Cabinet Secretary for Finance and Sustainable Growth).

21 Final version of draft Bill signed off by First Minister.

22 Final draft of Delegated Powers Memorandum approved by Cabinet Secretary / subject Minister and others with an interest.

Parliamentary Stages

23 Draft Bill and accompanying documents submitted to Presiding Officer. 24 Draft Delegated Powers Memorandum to Parliament’s Legislation Team

(at least 1 week before introduction).

25 Views of Scottish Law Officers on legislative competence obtained.

26 Agreement to introduce Bill sought from Minister for Parliamentary Business. 27 Agreement to introduction received from the Minister for Parliamentary

Business (allow at least 3 working days).

28 Bill with accompanying documents introduced to Parliament (publication is usually early the following day).

29 Delegated Powers Memorandum published and submitted to Subordinate Legislation Committee by Parliament’s Legislation Team (immediately after Bill introduction).

30 Publish Equality Impact Assessment (If not already done)

31 Media briefing no earlier than day of publication of Bill (ie, usually the day after introduction).

32 Financial Resolution (as appropriate) agreed by lead Minister and Cabinet Secretary for Finance and Sustainable Growth and lodged with Parliament.

33 Stage 1 debate (allow at least 12 weeks).

34 Stage 2 (at least 11 sitting days after Stage 1).

35 Revised or supplementary Delegated Powers Memorandum to be submitted to Parliament’s Legislation Team roughly at least 10 days before Stage 3.

36 Revised or supplementary Explanatory Notes to be submitted to the Parliament’s Legislation Team roughly at least 7 days before Stage 3.

37 Revised or supplementary Financial Memorandum to be submitted to the Parliament’s Legislation Team roughly at least 7 days before Stage 3.

38 Secure Crown consent, where needed, before Stage 3 at very latest.

MILESTONES

Target completion

dates

Step completed

( box) 39 Stage 3 (at least 9 sitting days after Stage 2).

40 Finalise the Explanatory Notes (this should be done in the 4-week period

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between Stage 3 and Royal Assent. Once the notes have been agreed with SGLD and OSPC the Bill Team should forward them to the Queen’s Printer for Scotland – see guidance notes.)

41 Royal Assent (at least 4 weeks after Stage 3, except by agreement of CSCL and Law Officers – please specify if this is likely to be required).

42 Earliest commencement of Bill (at least 8 weeks after Royal Assent, except by agreement of CSCL – please specify if agreement required).

PROCEDURES FOR DELIVERY OF SCOTTISH GOVERNMENT LEGISLATION MILESTONES FOR PREPARATION AND PASSAGE OF A BILL: GUIDANCE NOTES • The paragraph numbers below correspond with the numbered steps in the

Timetable for Preparation and Passage of a Bill and may not always be taken in the precise order set out below. PS/Minister for Parliamentary Business and the Legislation and Parliamentary Liaison Team must be involved in the preparation of the timetable along with the relevant SGLD and OSPC contacts.

• Not all steps may be necessary in every case but as a general guide this is the framework on which preparation of a Bill should be based.

• As a general rule, CPS-Legislation Team should be copied into all draft and final papers relating to legislation especially where new policy or timetable issues are discussed.

PRE-PARLIAMENTARY STAGES 1. CSCL agrees slot in outline legislative programme – CPS-Legislation Team will provide this date. Bids for a slot in the provisional legislative programme will normally be made in response to a request from the Legislation and Parliamentary Liaison Team in the context of the overall programme for the Parliament. Ad-hoc bids should be made in consultation with the Legislation and Parliamentary Liaison Team. 2. Cabinet approves CSCL provisional recommendation – the CPS- Legislation Team will seek Cabinet approval for a Bill’s place in the provisional legislative programme, normally in the context of agreeing the overall outline legislative programme. The outcome of the Cabinet discussion will prompt the CPS-Legislation Team to request further detail as necessary from Directorates and to request completion of the ‘contract’ timetable. 3. Policy Division drafts consultation paper - insert here the date when you expect to complete the draft consultation paper for circulation to other interested divisions including the Bill contacts in SGLD and OSPC. Both SGLD and OSPC should be included in consideration of the draft consultation paper to identify potentially complex drafting issues at an early stage. The Bill Team should also make early contact with relevant colleagues for advice on mainstreaming issues, notably equal opportunities, human rights, sustainable development issues, effects on island communities and a regulatory impact assessment. There may be earlier consultation

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to develop aspects of policy which may contribute to formulating more comprehensive proposals for the Bill content. See separate guidance on consultations – http://intranet/content/corporate/guidance/se/gpg/gpg-00.asp 4. Consider financial arrangements with Finance team – to avoid problems further down the line, it is important that policy divisions begin to discuss the financial implications of the Bill’s proposed provisions at an early stage with their Finance team, to ensure that any necessary financial arrangements will be in place at the required time. 5. Cabinet approves consultation proposals - Cabinet Secretariat will advise the Directorate on their approach to Cabinet for consideration of the policy, scope and extent of the Bill before any consultation paper issues. Allow a minimum of 3 weeks for this process to cover the pre-digest and Cabinet process (7 working days needed for each). 6. Publication of Consultation Paper on general policy as approved by Cabinet - this first consultation (“White Paper”) would normally be expected to run for 3 months. Circumstances may dictate that consultation may follow after step 8, for example, depending on the timetable. 7. Policy Division completes policy instructions for SGLD - this step is unlikely to be completed until after all consultation responses have been analysed. Policy divisions should be in close touch with their SGLD contact(s) in preparing policy instructions. It is usual for this to be an iterative process. Any significant or sensitive variations to agreed policy will require to be approved by the relevant Minister, CSCL and, possibly by Cabinet - see step 16. 8. Cabinet approves CSCL recommendation of Bill’s firm place in legislative programme – the Legislation and Parliamentary Liaison Team will provide this date and arrange to seek Cabinet approval of CSCL’s recommended legislative programme for announcement by the First Minister each year – usually May/June in the first and last years of the Session and September mid-Session. 9. Consultation responses collated/analysed - the responses to the consultation exercise will inform the preparation of policy instructions and sufficient time should be allowed to take on board comments and adjust policy instructions as appropriate (following agreement by relevant Ministers, CSCL and, if significant or sensitive, by Cabinet - see step 16). This may be completed before steps 7/8 or be ongoing during step 11. 10. Scotland Act orders – consider the need for orders under the Scotland Act 1998. An order may be needed if the proposed legislation increases or reduces the scope of reserved matters (s30(2)) orders or will require consequential changes to be made to reserved legislation (s104 legislation). Your solicitor and Constitutional Policy and Civic Participation Team will be able to advise. The timetable for such orders needs to be worked out in conjunction with the timetable for the Bill, especially if the implementation of the Act depends on the order being in place.

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11. SGLD completes drafting instructions to OSPC - the allocated solicitor(s) will prepare instructions for Counsel, based on the policy instructions received from the policy division(s). It is usual for this to be an iterative process. The time to be allowed for this must be agreed with SGLD at the outset. 12. OSPC completes draft Bill - based on instructions from SGLD. Whilst the final draft of the Bill will not often be completed until the date it goes to the Presiding Officer, the draft Bill should be substantially complete at this stage. This will of course take time, which will vary according to the size and complexity of the Bill. Although agreement must be reached with OSPC on the time to be allowed for the particular Bill, a rough indication of the likely time needed is as follows: 1. very small Bill (1-10 sections) - between 1 week and 1 month 2. small Bill (11 to 20 sections) - between 3 weeks and 2 months 3. medium Bill (21 to 50 sections) - between 1 month and 3 months 4. large Bill (51 to 100 sections) - between 3 months and 8 months 5. very large Bill (101 to 300 sections) - between 6 months and 2 years 6. massive Bill (over 300 sections) - 18 months or more. 13. Cabinet approves terms of draft Bill for consultation – the ideal is to have a consultation on the draft Bill. Cabinet Secretariat will advise the Department on their approach to Cabinet for consideration of the terms of the draft Bill before its publication for consultation. At least 3 weeks should be allowed to cover the pre-digest and Cabinet process (7 working days needed for each). 14. Second consultation (ideally) on draft Bill - in practical terms, it will not always be possible to fit a second consultation into the process if time is not available. However, the ideal is to consult on a draft Bill usually following an initial consultation. Alternatively, if the Bill is very technical or if it is still being drafted the second consultation could be based on a detailed policy paper. 15. Second consultation responses collated/analysed - consultation responses will be taken on board as appropriate in the final draft of the Bill. Any changes to agreed policy must be approved by relevant Ministers, CSCL and, if significant or sensitive, also by Cabinet - see step 16. 16. Cabinet agrees final policy proposals - policy proposals evolve both through the consultation process and through further work within the Government. Collective (Cabinet) agreement should therefore be sought to the developed policy and to confirm the readiness of the policy for the Bill. 17. Policy Division drafts accompanying documents – the Parliament’s templates for these documents must be used and are available from CPS-Legislation Team (ie, Financial Memorandum, Explanatory Notes and Policy Memorandum as set out in Standing Orders). Drafts should be cleared with SGLD, OSPC and Finance, as well as other Divisions with an interest (see steps 18 and 20). In addition and where

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appropriate, the policy Division should also begin work, in consultation with SGLD and OSPC, on the Delegated Powers Memorandum (strictly, not an accompanying document) which will be submitted in draft by OSPC to the Parliament’s Legislation Team 1 week in advance of the Bill introduction date (see step 24). Where possible, a draft of the relevant subordinate legislation should be prepared for submission at Stage 1, failing which at Stage 2. 18. Financial Memorandum cleared with Finance - it is important that policy Divisions liaise with their Finance Team and Finance: Accountability Policy & Guidance in good time to seek the formal approval of the Cabinet Secretary for Finance and Sustainable Growth to the Financial Memorandum. Financial issues must be cleared and agreement reached before the Bill and accompanying documents are submitted to the Presiding Officer for pre-introduction scrutiny. 19 (a). Officials’ Bill Management Meeting on state of readiness – prior to the Ministerial Bill Management meeting, officials from CPS, SGLD, OSPC, PS/MfPB and the Bill Team will meet to consider the full range of readiness issues, including policy matters, identify areas of concern and agree on appropriate corrective action. The outcomes from this meeting will form the agenda for the subsequent Ministerial Bill Management meeting. Arrangements for the Officials’ Bill Management meeting are to be made by the Bill Team, liaising with CPS to confirm optimum dates. 19 (b). Ministerial Bill Management Meeting on state of readiness. CPS-Legislation Team will advise on timing and agenda for this mandatory meeting when the lead Cabinet Secretary or other appropriate subject Minister should present the proposed Bill policy for scrutiny and discussion with the Lord Advocate (and/or the Solicitor General) and the Minister for Parliamentary Business. Issues covered will include policy readiness, scale and scope, complexity and sensitivity, financial implications, staffing arrangements for the Bill Team, the proposed timetable and any Parliamentary or political handling issues, when the draft Bill is well advanced to take stock of its readiness for introduction. This will include ensuring that all policy issues have been finalised, all outstanding legal issues resolved, all financial implications addressed, that there is a strategy for Parliamentary handling, and a robust and realistic implementation plan. This meeting will be arranged by the Legislation and Parliamentary Liaison Team, with input form the Bill Team, on behalf of the Lord Advocate and Minister for Parliamentary Business. 20. Draft Bill and accompanying documents finalised and approved by lead Cabinet Secretary, Cabinet Secretary for Finance & Sustainable Growth and other Ministers with an interest. The Delegated Powers Memorandum is dealt with separately. OSPC may still be working on the draft Bill but it should be largely in final form with any outstanding issues noted for Ministers. Cabinet approval is only required at this stage if Cabinet has not previously approved the detailed policy (step 5) or where CSCL and Cabinet approval to a subsequent change of policy is still required (step 16). The Cabinet Secretary/ subject Minister should also have briefed Partnership spokespersons on the final policy proposals. 21. Final version of the draft Bill to be signed off by First Minister: – Before the Bill and accompanying documents are forwarded to the Presiding Officer they must be signed off by the First Minister. This will require a copy of the final version of the

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draft Bill (although if OSPC are still working on any significant issue this should be noted) to be sent to the Senior Special Advisers (Kevin Pringle and Stephen Noon), and at least 5 working days should be built into the timetable to allow for this step. 22. Final version of the draft Delegated Powers Memorandum should be prepared in consultation with SGLD and OSPC for approval by the lead Cabinet Minister and any others with an interest for submission in draft by OSPC to the Parliament’s Legislation Team at least 1 week before Bill introduction. Where possible, a draft of the relevant subordinate legislation should be prepared for submission at Stage 1, failing which at Stage 2. PARLIAMENTARY STAGES 23. Draft Bill and accompanying documents submitted to Presiding Officer - the Bill and accompanying documents (not the Delegated Powers Memorandum) must be sent by OSPC to the Legislation and Parliamentary Liaison Team (Presiding Officer) at least 3 weeks before the proposed introduction date for his decision on legislative competence. During this pre-introduction period, the Parliamentary authorities scrutinise the Bill and prepare advice to the Presiding Officer on legislative competence and also on whether a Financial Resolution and Crown consent are required. They may have questions/comments on the Bill or the accompanying documents, which will be relayed via OSPC. N.B. Recess periods do not count as part of the pre-introduction 3 weeks, unless otherwise agreed in advance. OSPC will normally negotiate this with the Parliament’s Legislation Team. 24. Draft Delegated Powers Memorandum to Parliament’s Legislation Team – to be submitted by OSPC, where appropriate, at least 1 week before Bill introduction. Where possible, a draft of the relevant subordinate legislation should be prepared for submission at Stage 1, failing which at Stage 2. 25. Views of Scottish Law Officers on legislative competence obtained - your instructing Solicitor should seek, not later than 3 weeks before planned introduction, confirmation from the Scottish Law Officers (of the view taken by SGLD) that the provisions of the Bill are within the legislative competence of the Parliament. Law Officers should hopefully give confirmation at least 1 week before Bill introduction. 26. Agreement to introduce Bill - the Cabinet Secretary / subject Minister should write seeking the formal agreement of the Minister for Parliamentary Business to the introduction of the Bill to Parliament on the proposed date. The checklist at Annex 4 of the Bill Handbook should be completed at this stage and forwarded to Legislation and Parliamentary Liaison Team. In response, the Minister for Parliamentary Business may request confirmation of any aspects of the pre-introduction procedure that have not been completed, and will ensure that arrangements for introduction are made in the Parliament. At least 3 working days should be allowed for approval to introduce.

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27. Minister for Parliamentary Business agrees to introduction of Bill. 28. Bill with accompanying documents introduced to Parliament - when all the necessary pre-introduction steps have been taken, the Bill must be signed by the Cabinet Secretary introducing it (the member in charge of the Bill), and usually also by the Minister who is usually designated as the member in charge to take the Bill through Committee. Other Cabinet Secretaries who have a policy interest in the Bill may also sign it, but lack of signatories other than the member in charge should not delay introduction. The date of introduction will have been agreed by the Minister for Parliamentary Business (steps 26/27). 29. Delegated Powers Memorandum to Subordinate Legislation Committee upon introduction of the Bill - any Bill conferring powers to make subordinate legislation will be referred to the Subordinate Legislation Committee at Stage 1 for consideration. OSPC will have submitted the Memorandum to the Parliament’s Legislation Team 1 week before Bill introduction (step 24) and the latter will arrange for the Memorandum to be published and submitted to the SLC the day following Bill introduction. 30. Publish Equality Impact Assessment – The Scottish Government is subject to three public sector equality duties which place positive duties on public authorities to address discrimination and harassment and to promote equality of opportunity with regard to race, disability and gender. Therefore Bill Teams are expected to consider all equality issues for each part of their Bill. The Scottish Government has an equality impact assessment tool to aid this process. The tool can be found at: http://fk02fka/systems/EqualityUnit/Assessment/ 31. Media briefing should be arranged for no earlier than the day of publication of the Bill, ie usually early on the day following Bill introduction, unless there are pressing arguments in favour of limited publicity on the day of introduction and that has been agreed in advance with the Minister for Parliamentary Business. Arrangements should be made in advance with the Parliament and their printers for copies of the Bill as published to be made available, but this may not always be possible in the time available. No other version of the Bill should be circulated. 32. Financial Resolution (as appropriate) agreed by the lead Minister and Cabinet Secretary for Finance and Sustainable Growth - if the Presiding Officer indicates that a financial resolution is needed, OSPC will draft the motion and it must be cleared with Finance officials before Ministerial approval is obtained. Counsel will lodge the motion shortly after the Bill’s introduction but it will not be formally moved until immediately after the Stage 1 debate; the Minister for Parliamentary Business’s office will make arrangements to lodge notice of the motion. 33. Stage 1 debate - the date for the Stage 1 debate (at least 5 days after the Stage 1 report is published) will be set by the Parliamentary Bureau following discussion between PS/MfPB and the Clerk to the relevant Committee(s), and the lead Cabinet Secretary in charge of the Bill will normally open the debate with the subject Minister winding up. Bill Teams will need to prepare speaking notes for their Minister and attend the debate. Allow at least 12 weeks for the Stage 1 process. Where

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appropriate, the lead Committee and SLC will usually wish to see draft Regulations, etc for scrutiny at Stage 1 if possible, or at the very least a detailed explanation of the use to which the powers will be put, especially if these are wide. Otherwise, the Committee will almost certainly wish to see draft instruments at Stage 2. 34. Stage 2 - there must be a gap of at least 11 clear sitting days between the end of Stage 1 and the start of Stage 2, but in practice there will often be a gap of nearly 3 weeks depending on when the relevant Committee sits. Allow for this when planning your timetable. Where amendments to the Bill are required, they should as far as possible be made at Stage 2 rather than at Stage 3. Any amendments proposing sensitive or significant changes to agreed Bill policy should be discussed with CSCL Secretariat (Legislation and Parliamentary Liaison Team) to decide whether CSCL and/or Cabinet approval is needed. Every effort should be made to lodge Government amendments at least 5 sitting days in advance of the start of Stage 2, or 5 days in advance of the first Committee meeting in any subsequent week. The absolute minimum lodging date is 3 days in advance (excluding manuscript amendments). Where it has not been possible to provide draft subordinate legislation at Stage 1, the Committee is likely to insist on seeing draft regulations at Stage 2. 35. Revised or supplementary Delegated Powers Memorandum - where powers to make subordinate legislation have been inserted or substantially altered at Stage 2 the Memorandum should be provided no later than the end of the 2nd week before the week in which Stage 3 is due to start (or, put another way, the end of the week before the SLC meeting in the week before Stage 3). Thus, if Stage 3 is due to take place after the minimum 9-day gap with Stage 2, then there may be only 2 days to produce a revised Memorandum. In practice, agreement has been reached for OSPC to submit the draft Memorandum at least 3 days in advance of the formal deadline, ie roughly at least 10 days before Stage 3. Every effort should be made to produce the Memorandum as early as possible. The norm is for a revised rather than a supplementary Memorandum to be submitted, and it should deal only with new powers or those that have changed. The revision should be cleared with SGLD and OSPC and the Cabinet Secretary / subject Minister. It is also very helpful to alert the SLC, by means of a letter from the lead Bill Minister to the Convener with a copy to the Clerk, to relevant amendments proposed at Stage 3, whether the amendments are entirely new or are intended to reverse amendments made at Stage 2. 36. Revised or supplementary Explanatory Notes – where new sections or schedules have been added or existing provisions have been substantially amended at Stage 2, revised or supplementary Explanatory Notes should be provided at least 4 days ahead of Stage 3 so that the revised Bill can be read along with the revised Notes. In practice, agreement has been reached for OSPC to submit the draft Memorandum at least 3 days in advance of the formal deadline, ie roughly at least 7 days before Stage 3. Every effort should be made to produce the Memorandum as early as possible. The norm is for a revised rather than a supplementary Memorandum to be submitted, and it should summarise objectively what each of the new or amended provisions does and give any other information necessary or expedient to explain the effect of the amended Bill. Where any non-Government amendment has been made it will need to be explained as objectively as possible, and where it is considered that the amendment is legally or technically deficient or otherwise impracticable it may be appropriate to say so and to indicate what changes

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are thought necessary. The revision should be cleared with SGLD and OSPC and the Cabinet Secretary / subject Minister. 37. Revised or supplementary Financial Memorandum - where amendments have been made at Stage 2 that substantially alter the cost implications of the Bill as described in the original Memorandum, a revised or supplementary Memorandum should be provided at least 4 days before Stage 3. In practice, agreement has been reached for OSPC to submit the draft Memorandum at least 3 days in advance of the formal deadline, ie roughly at least 7 days before Stage 3. Every effort should be made to produce the Memorandum as early as possible. The additional information should be limited to that required under Standing Orders in relation only to the amendments to the Bill and should not, as a general rule, include revised material unrelated to the amendments such as re-costings that the Government, for example, may consider helpful: such information may, however, be provided in a separate letter from the lead Bill Minister to the Conveners of the lead Committee and the Finance Committee with a copy to the respective Clerks. Where a non-Government amendment carries substantial additional costs it should be possible to draw from the briefing prepared, in consultation with Finance colleagues and Ministers, when the amendment was considered at Stage 2. The Memorandum should offer a fair assessment of the costs together with any other relevant information considered appropriate, consistent with rule 9.3.2. It may be that the Government would seek to remove or revise the amendment at Stage 3. The draft Memorandum should be cleared with the Finance Team, Finance Standards & Guidance, SGLD and OSPC and the subject Minister and the Cabinet Secretary for Finance and Sustainable Growth. 38. Secure Crown consent, where needed, before Stage 3 - where needed, Crown consent should be sought as early as possible preferably before introduction but certainly no less than 2 weeks before Stage 3. 39. Stage 3 - there must be a gap of at least 9 clear sitting days between the end of Stage 2 and the start of Stage 3. Stage 3 usually takes place at one sitting of the Parliament and the date will be set by the Parliamentary Bureau after discussions between PS/MfPB and the Clerk to the relevant Committee(s). Amendments for Stage 3 may be lodged as soon as Stage 2 is completed and again every effort should be made to lodge Executive amendments at least 5 sitting days before Stage 3 is due to start. Notice of these amendments will normally have been given at Stage 2. The absolute minimum lodging date is 4 days in advance (excluding manuscript amendments). 40. Finalise Explanatory Notes – OSPC generally receives a copy of the latest text of the Explanatory Notes from the Parliament’s Legislation Team soon after Stage 3. These are then forwarded on to the Bill Team so they can be finalised (in conjunction with SGLD and OSPC) in the 4-week period in the run-up to Royal Assent. CPS will routinely remind Bill Teams at the end of Stage 3 about the importance of finalising the Notes for publication alongside the Act when it is published on the Office of Public Sector Information’s website (http://www.opsi.gov.uk/legislation/scotland/about.htm). Completed notes should be sent to the Queen’s Printer for Scotland and their email address can be located in the Outlook address book in the usual way (xxxxxxxxxxxxxx@xxxxxxxxxxxxxx.x.xxx.xxx.xx)

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41. Royal Assent – section 33 of the Scotland Act 1998 allows the various Law Officers (UK and Scottish) to refer a Bill to the Privy Council for a decision on whether any provision in it is outwith the legislative competence of the Scottish Parliament. This may be done within the period of 4 weeks after a Bill completes Stage 3 and the Bill will not therefore normally be given Royal Assent during this period. If there are pressing reasons to shorten this period, CSCL agreement should be sought to ask the Law Officers (UK and Scottish) and the Secretary of State for Scotland to give notice that they do not intend to refer the Bill to the Privy Council for a ruling. The need for such an exemption should be signalled as early as possible in the drafting process and a formal approach made well before Stage 3. Legislation Unit will be happy to advise. 42. Earliest commencement of Bill - in general no Act or part of an Act (other than enabling powers) should be brought into operation earlier than 2 months after Royal Assent whether by a provision in the Act or in a Commencement Order made under the Act. If there is a pressing need for early commencement, CSCL agreement should be sought as early as possible. In determining the commencement date, account should be taken of the SSI timetable: there are different procedures for negative and affirmative instruments.

Annex 7: Cabinet Sub-Committee On Legislation – Remit And Working Arrangements

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Annex 7 CABINET SUB-COMMITTEE ON LEGISLATION – REMIT AND WORKING ARRANGEMENTS Remit Name: Cabinet Sub-Committee on Legislation Chair: First Minister Deputy Chair: Minister for Parliamentary Business Members: Ø Deputy First Minister Lord Advocate Senior Officials: The following senior officials will normally attend:- DG Constitution and Corporate Change Director Constitution First Scottish Parliamentary Counsel Solicitor Head of Constitution and Parliamentary Secretariat Remit: To:-

(a) Monitor the management of the Government’s current legislative programme and submit regular progress reports to the Cabinet;

(b) Keep under regular review the Government’s priorities for future legislation and recommend future legislative programmes to the Cabinet;

(c) Approve the terms of proposed statements or other commitments relating to the timetabling of legislation already approved by the Cabinet;

(d) Consider proposals for significant changes in the policy content of Bills following approval by the Cabinet of that policy content*;

(e) Consider proposals for Member's Bills, Committee Bills and Private Bills and make a recommendation on the position to be taken by the Government on each proposal;

(f) Approve proposals for the Parliament to be invited to give consent, by means of a Sewel motion, to the inclusion in UK Bills

Ø Any proposals for changes in the membership of the Sub-Committee should be submitted to the Chair for approval and, if approved, should be notified to the Cabinet in the weekly Business Review paper. If a member (or senior official) is unable to attend a meeting, he/she should try to arrange for a colleague to attend in his/her place.

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of legislation relating to devolved matters*; and keep the operation of the Sewel convention under review.

(g) Consider other matters relating to the management of the Executive’s legislative programme.

(h) monitor the transposition of EU obligations and infraction cases.

(* Where the Sub-Committee considers proposed changes to the policy content of a Bill or the subject matter of a proposed Sewel motion to be of such significance or sensitivity as to require Cabinet consideration (or where it is unable to agree on a course of action), the matter should be referred to the Cabinet for decision together with the Sub-Committee's recommendation (where appropriate). In other cases the Sub-Committee will take a final decision on behalf of the Cabinet.)

Anticipated Lifespan: Not time limited. Reporting Arrangements: The Sub-Committee will usually meet 3 times a year, normally in February, May and October. It will report to Cabinet soon thereafter providing a progress report on the current legislative programme and/or making recommendations in relation to future legislative programmes. The Sub-Committee will also report to the Cabinet on an ad hoc basis as appropriate. Secretariat: To be provided by the Legislation Unit in the Constitution and Parliamentary Secretariat of Legal and Parliamentary Services.

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Guidance Note on Working Arrangements Cabinet 1 The Scottish Ministerial Code (paragraph 3.2) provides that “Ministers should not give undertakings either in or outside the Parliament to introduce primary legislation on any issue without the prior agreement of the Cabinet”. Consistent with this, Cabinet will continue to be asked to:

(i) approve the content of future legislative programmes, as proposed by the Cabinet Sub-Committee on Legislation;

(ii) agree the principle of legislation on any issue before any public commitment is given and usually before Executive (policy Department, SGLD, OSPC) resources are committed;

(iii)approve the policy content, and scope and extent, of each Bill before it issues for consultation/publication (as submitted by the lead Minister after clearance with the Sub-Committee's Secretariat, i.e. the Legislation and Parliamentary Liaison Team); and

(iv) approve any proposed change to the agreed policy content of a Bill where the Sub-Committee considers that the proposed change is of such significance or sensitivity as to require Cabinet consideration.

Cabinet Sub-Committee on Legislation 2 The Sub-Committee will meet usually in February, May and October and report in March, June and December to Cabinet on the development of the legislative programme. It may also report on an ad hoc basis as appropriate. 3 The future legislative programme is derived in the main from Manifesto commitments made in the run-up to each new Parliamentary Session. There may be additions to the programme in the course of the Session. 4 The Sub-Committee’s Secretariat should be given the opportunity to comment on draft papers to Cabinet relating to the principle of legislating on an issue and draft papers relating to the policy content, etc, of a proposed Bill. In general, the approach to Cabinet should be by means of a memorandum for discussion, unless the approach relates to detailed policy issues raising no new issues of special significance, in which case it may be appropriate for consideration of the issues to be taken by Cabinet correspondence. 5 Proposals for amendment to the legislative programme, including any adjustments to a Bill's content, should be directed in the first instance to the Secretariat for consideration at the next Sub-Committee meeting. If there is a pressing need for early clearance, the Committee may exceptionally agree to consider the proposals by correspondence. The Secretariat may advise that the matter is of such minor significance that it does not require Committee consideration; in all other cases the Secretariat will advise, following consideration by the Committee, whether

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an approach to Cabinet is necessary and whether any such approach should be by memorandum for discussion or by correspondence. 6 The terms of any public announcement about the timetabling of any current or future legislation must be cleared in advance with the Sub-Committee’s Secretariat and may be considered by the Committee in correspondence. 7 The Sub-Committee will consider and, where appropriate, agree proposals for Sewel motions by correspondence. In case of any unresolved disagreement, Cabinet will be asked to consider the proposal. The Sub-Committee will monitor the operation of the convention. 8 The Sub-Committee will monitor the transposition of EU obligations and infraction cases. 9 All proposals for submission to the Sub-Committee must be cleared in advance with the Secretariat and must previously have been cleared by all relevant interests and endorsed by all relevant Ministers before being submitted. 10 The Sub-Committee will consider other business, e.g. waiving of the standard minimum 2 month period between Royal Assent and commencement, as appropriate, and as advised by the Secretariat. 11 The Scottish Government interests in Queen’s speech proposals for UK Parliament legislation will be monitored by the Sub-Committee's Secretariat, subject to the overall direction of the Committee. 12 The Sub-Committee will also consider the Government's position on Members Bills, Committee Bills and Private Bills on the basis of recommendations by the relevant lead Minister prior to the matter being submitted by the lead Minister to the Cabinet. The Secretariat will advise on the appropriate procedures in each case. Consideration will usually be by correspondence. The views of the Business Planning Group will be sought as necessary. Other Issues 13 The Ministers for Parliamentary Business will continue to consider with the Constitution and Parliamentary Secretariat at regular intervals overall progress on the legislative programme. Scottish Government Legislation and Parliamentary Liaison Team March 2010

Annex 8: Bill Passporting Meeting Guidance

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Annex 8 BILL MANAGEMENT MEETING GUIDANCE In order to assist in the management of the legislative programme, every Bill is required to undergo a Bill Management process before it is allocated a firm place in the legislative programme. This process involves the lead Minister, the Minister for Parliamentary Business and the Lord Advocate, and enables them to carry out a clear assessment of issues such as:

• policy readiness • the scale and scope of the Bill • competence, ECHR and other legal issues • environmental issues • regulatory impact assessment • equality compliance issues. • complexity and sensitivity • staffing arrangements for the Bill Team • financial implications • Explanatory Notes – timeous preparation and fit for purpose • timetable • Associated subordinate or consequential legislation (e.g. Regulations

or Scotland Act Orders) • any Parliamentary or political issues which require particular attention,

and • what has been done (or is planned) to engage Government

backbenchers. • media plan in preparation, engagement with interest

groups/stakeholders. The general aim is that the Ministers for Parliamentary Business, the Lord Advocate and the Solicitor General should discuss these issues with the lead Minister after Cabinet has agreed each year's legislative programme in principle, but before detailed work has begun on drafting the Bill. The format of the meeting should be along standard lines and the following points should be noted:

• The meeting will normally be chaired by the Minister for Parliamentary Business.

• A presentation should be given by the lead Minister for the Bill.

• A short (no more than 2 pages) written brief should be circulated at least 4 working days

• in advance of the meeting along with an agenda using the attached template.

• The whole event should last no more than 1 hour.

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• The Bill Team should dedicate an official to specifically produce an action point note of the meeting, cleared with Legislation and Parliamentary Liaison Team, for circulation to all attendees. If possible this should be done within 5 days of the meeting.

• Annexed is a list of those who should be invited to the Bill Management meeting.

Legislation and Parliamentary Liaison Team will advise Bill Teams of optimum dates for the meeting according to your Bill’s place in the legislative programme. The following is a list of people who should be invited to the Bill Management meeting:

Lead Minister(s) Lord Advocate

Solicitor General

Minister for Parliamentary Business

Murray Sinclair, Solicitor

Colin Wilson, First Scottish Parliamentary Counsel

Colin Troup, Legal Secretariat to the Lord Advocate

Bill Team (including SGLD and OSPC contacts)

Special Advisers (Stephen Noon and Kevin Pringle)

Ken Thomson, Constitution Directorate (CLAC)

Constitution and Parliamentary Liaison Team Secretariat (Elspeth Macdonald, Ian Turner, Steven MacGregor and Michael Abell)

Note: It may not be necessary for all of the above to attend, but they should all be invited. It is important however that at least the Lord Advocate or Solicitor General and the Minister for Parliamentary Business attend.

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BILL MANAGEMENT MEETING

WORKING TITLE OF BILL DATE AND TIME

AGENDA

Introduction 1. Presentation by Name of Minister covering:-

• Main scope and content of the Bill • Policy Readiness • Timetabling • Parliamentary handling

Discussion 2.

• policy readiness • the scale and scope of the Bill • competence, ECHR and other legal issues • environmental issues • regulatory impact assessment • equality compliance issues. • complexity and sensitivity • staffing arrangements for the Bill Team • financial implications • Explanatory Notes – timeous preparation and fit for purpose • timetable • Associated subordinate or consequential legislation (e.g. Regulations

or Scotland Act Orders) • any Parliamentary or political issues which require particular attention,

and • what has been done (or is planned) to engage Government

backbenchers. • media plan in preparation, engagement with interest

groups/stakeholders.

Conclusion 3. Follow up action and next steps

Annex 9: Council on Tribunals Consultation Code

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Annex 9 COUNCIL ON TRIBUNALS CONSULTATION CODE Introduction 1. This Code has been prepared by the Council on Tribunals to restate the obligation on Departments to consult the Council and the Scottish Committee on proposals for certain subordinate legislation and to suggest the desirability of consulting them on proposals for certain other primary legislation. It also suggests the form and timing of such consultations. The Code was originally circulated to coincide with the coming into force of the Tribunals and Inquiries Act 1992, consolidating and replacing the 1971 Act, and supersedes the Code circulated in 1982 and 1986. Subject Matter and Timing of Consultation 2. Under Section 8 of the Tribunals and Inquiries Act 1992 no power of a Minister, the Lord President of the Court of Session, the Commissioners of Inland Revenue or the Foreign Compensation Commission to make, approve, confirm or concur in procedural rules for certain tribunals is exercisable except after consultation with the Council: a similar obligation to consult the Council is placed on the Treasury. Rules made after such consultation usually state that consultation has taken place. The tribunals concerned are referred to in this Code as “scheduled tribunals”, a term further explained at paragraph 9 of this Code. Similarly, the Lord Chancellor and Scottish Ministers are under a statutory obligation to consult the Council with regard to procedural rules for statutory inquiries. Where consultation is mandatory, it is necessary for instruments containing the proposed rules to be submitted to the Council in draft form before they are made. 3. Before seeking advice on procedural rules, the Council and the Scottish Committee recommend those responsible for drafting them to consult and make use of, so far as may be appropriate, the Council’s Report on Model Rules of Procedure for Tribunals (Cm 1434, March 1991). 4. Consultation on proposals for primary legislation affecting tribunals or statutory inquiries, or on rules for statutory inquiries other than those referred to in paragraph 2, is not mandatory, but usually takes place and is welcomed. As explained in paragraph 8 of this Code, we consider that such consultation is most effective and beneficial to Departments if it takes place at an early stage in the formulation proposals. 5. Consultation on proposals for primary legislation affecting the rights of the citizen which may require consideration of whether, and in what form, new adjudicative procedures are necessary or desirable is also welcomed.

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Time allowed for Consultation 6. The Scottish Committee expects that Departments consulting it will always allow as much time as possible to prepare and submit its comments. This is particularly important when consultation is mandatory and the statutory instrument will state that such consultation has taken place. The Committee meets quarterly in March, June, September and December. It is hoped that Departments will understand that, if considered advice on any important matter is required, certain minimum periods of consultation are necessary. The Committee suggests that the following should be regarded as the optimum periods for consultation:

(a) where proposals are of a routine kind and do not raise major questions of principle or require significant reading: 4 weeks;

(b) where proposals involve major new issues: 6 weeks. 7. Where, for unavoidable reasons, consultation has to be completed in a shorter time, the minimum periods which will enable the Committee to give proper consideration to proposals may be taken to be two weeks and three weeks respectively. If these suggested minimum periods cannot be adhered to and an explanation is given, the Committee will endeavour to complete the consultation process in such time as may be available. The Committee accepts that many proposals cannot be timed to match quarterly meetings and the Secretary frequently undertakes consultation by post. However this of necessity adds a further time factor and makes the above-suggested minimum periods even more relevant. 8. The Committee is very conscious of the constraints imposed on Departments by the Parliamentary timetable. The Committee considers, however, that if difficulty is foreseen in meeting the recommended minimum periods, consultation need not be delayed until a full draft of the new legislation has been produced but in suitable cases may be initiated at an earlier stage, perhaps with regard to specific provisions. Indeed, particularly with regard to non-mandatory consultations, the Committee suggests that the best time for consultation will often be when proposals have taken reasonably firm shape but before Ministers are committed; the Committee may be able to suggest means of solving an adjudication problem which may not have occurred to the Department, e.g. by amending the powers of an existing tribunal to enable it to undertake the work rather than by creating a new tribunal. Scheduled Tribunals 9. The tribunals which come within the jurisdiction of the Council and the Scottish Committee (referred to in this Code as “scheduled tribunals”) are:

(i) those which are listed in Schedule 1 to the Tribunals and Inquiries Act 1992 and

(ii) those tribunals which have been specified in orders made under section 13 of that Act amending Schedule 1.

The Committee will be able to give a view of any case in doubt.

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Process of Consultation 10. In submitting draft instruments to the Committee in cases of mandatory consultation, a copy of the draft should be sent to the Committee with an explanatory statement and any necessary covering letter. Where proposals for primary legislation are concerned, a letter will usually suffice, although material such as draft clauses or instructions to Parliamentary Counsel is particularly helpful. 11. The Committee’s comments will be submitted in writing. Reporting the Results of Consultation 12. It is usual for the outcome of the consultations between Departments and the Committee to be reported in the Committee’s Annual Report, but in every case the accuracy of such reports is cleared with the Departments concerned before publication. Where consultation has taken place on confidential basis, that confidence is respected. 13. Where the Committee has, when consulted, expressed views on an important question of principle, and it is intended to inform Parliament or the public that it has been consulted, the Committee trusts that the general tenor of its advice will be stated at that time.

Annex 10: Contact List

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Annex 10 CONTACT LIST Scottish Government and UK Government Contacts Scottish Government Contacts Head of Constitution Ken Thomson 42131 2W.02, SAH Head of Constitution and Parliamentary Secretariat (CPS) Elspeth Macdonald 40570 G-A(N), VQ Constitutional and Civic Participation Duncan Isles 45064 G-A(N), VQ Al Gibson 45560 G-A(N), VQ

Al Gibson 45560 G-A(N), VQ Legislation and Parliamentary Liaison Team Ian Turner 42365 G-A(N), VQ Catherine Lobban 45572 G-A(N), VQ Michael Abell 45169 G-A(N), VQ Steven MacGregor 41650 G-A(N), VQ Head of Europe Division Alastair Wilson 47944 3-J77 VQ Jane McCloskey 47014 2-H, VQ Cabinet Secretariat Davis Simpson 40124 4N.03, SAH Robin Benn 46933 4W.01, SAH 4W.01, SAH Equality Unit: Laura Turney 42211 2-F, VQ Michael Cutts 40694 2-F, VQ Office of the Solicitor to the Scottish Executive (SGLD) Murray Sinclair Solicitor to the Scottish Government 40531

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Office of the Scottish Parliamentary Counsel (OSPC) Colin Wilson 41670 1-B09, VQ Gregor Clark 41671 1-B52, VQ Diane Barbirou 41669 1-B62, VQ Madeleine Mackenzie 41667 1-B56, VQ Alex Gordon 41668 1-B24, VQ Ian Young 47393 1-B25, VQ Andy Beattie 41665 1-B54, VQ Willie Ferrie 41663 1-B27, VQ Crown Office and Procurator Fiscal Service (COPFS) Policy Group Scott Pattison (Head of Policy Group) 0131 247 2705 Crown Office Rachael Weir (Head of Operational Issues Team) 0131 247 2654 Crown Office Media and Communications Roger Williams (Head of Marketing and New Media) 42706 3W.02, SAH Minister for Parliamentary Business’ Office Gill Glass 85593 Scottish Parliament Nicola Dove 85572 Scottish Parliament Parliamentary Clerk’s Office Lesley Swan 85569 Scottish Parliament Jonathan Brown 85583 Scottish Parliament Better Regulation Liz Hannah 25547 IRIS, MC Sheena Burns 25622 IRIS, MC The Crown Estate Michael Cunliffe Head of Scottish Estates

0131 226 7241 Crown Estate Office, 10 Charlotte Square

Nick Ruck Keene Rural and Commercial Property Manager

0131 226 7241 Crown Estate Office, 10 Charlotte Square

Sheila Harvey Marine Estates Manager

0131 226 7241 Crown Estate Office, 10 Charlotte Square

Ian Pritchard Fish Farming Estate Manager

0131 226 7241 Crown Estate Office, 10 Charlotte Square

Queen’s Printer for Scotland - General

Enquiries 020 3334 2799

Alan Pawsey 01603 723014 020 7276 5200

Queen’sPrinterforScotlanx@xxxxxxxx.xxx.xxx.xx

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UK Government Department Contacts Alasdair Wallace Department for Constitutional Affairs alasdair.wallxxx@xxx.xxx.xxx.xx

Tom Dooley Home Office Tom.Dooley@homeoffice.gsi.gov.uk

Alastair Ross Scotland Office xxxxxxxx.xxxx@xxxxxxxx.xxx.xxx.xx

Michael Parsons Department for Culture, Media and Sport Michael.Parsons@culture.gsi.gov.uk

Bill McFadyen Maritime and Coastguard Agency Bill.McFadyen@mcga.gov.uk

Una Wiatrek Department of Work and Pensions xxx.xxxxxxx@xxx.xxx.xxx.xx

Andy Brown HM Customs and Excise andy.brown@hmce.gsi.gov.uk

Mark Parkinson HM Treasury mark.parkinson@hm-treasury.gov.uk

Charles Mullin Office of the Solicitor to the Advocate General xxxxxxx.xxxxxx@xxxxxxxx.xxx.xxx.xx

Penny Halnan Department for Education and Skills penny.halnan@dfes.gsi.gov.uk

Karl Murphy Department for Transport Karl.Murphy@dft.gsi.gov.uk

Donatella Phillips Office of Deputy Prime Minister Donatella.Phillips@odpm.gsi.gov.uk

James Neilson Culture xxxxx.xxxxxxx@xxxxxxx.xxx.gov.uk

Catherine Scott Advocate General Catherine.Scott@advocategeneral.gsi.gov.uk

Philip Baker Department for Culture, Media and Sport xxxxxx.xxxxx@xxxxxxx.xxx.gov.uk

Cecilia Parker Department for Work and Pension xxxxxxx.xxxxxxxxxxxxx@xxx.xxx.xxx.xx

Clive Kingman Communities xxxxx.xxxxxxx@xxxxxxxxxxx.xxx.xxx.xx

Jonathan Jones Attorney General Jonathan.Jonxx@xxxxxxxxxxxxxxx.xxx.gov.uk

Mike Oneil Food Standards Agencey Mike.Oneill@foodstandards.gsi.gov.uk

Steve Cross Department for Trade and Industry xxxxxxx.xxxxx@xxx.xxx.xxx.uk

Paula Cohen Department of Health Paula.Cohen@dwp.gsi.gov.uk

Ian Mowat HM Revenue and Customs Ian.Mowat@hmrc.gsi.gov.uk

Greer Kerrigan Department for Work and Pensions greer.kerrigax@xxx.xxx.xxx.xx

Sue Gray Cabinet Office sue.gray@cabinet-office.x.gsi.gov.uk

Ikpeme Damon Food Standards Agency ipkeme.damon@foodstandards.gsi.gov.uk

Fiona Walters Department for the Environment, Food and Rural Affairs Fiona.Walters@defra.gsi.gov.uk

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Monica Kurowski HM Revenue and Customs monica.kurowski@hmrc.gsi.gov.uk

Jackie Riley HM Revenue and Customs jackie.riley@hmrc.gsi.gov.uk

Richard Clapson Cabinet Office Richard.Clapson@cabinet-office.x.gsi.gov.uk

Richard Hutchinson Ministry of Justice Richard.Hutchinson@justice.gsi.gov.uk

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Political Parties, Churches and Faith Groups in Scotland Each of the mainstream political parties and the religious organisations below should be sent copies of ALL consultation papers issued by ALL Departments. Political Parties Scottish Conservative and Unionist Party 83 Princes Street EDINBURGH EH2 2ER

Scottish Liberal Democrat Party 4 Clifton Terrace EDINBURGH EH12 5DR

Scottish Green Party 14 Albany Street EDINBURGH EH1 3QB

Scottish National Party 107 McDonald Road EDINBURGH EH7 4NW

Scottish Labour Party John Smith House 145 West Regent Street GLASGOW G2 4RE

Scottish Socialist Party 2nd Floor 73 Robertson Street GLASGOW G2 8QD.

Churches and Faith Organisations Should you wish to discuss coverage of churches and faith groups or obtain a fuller distribution list, please contact Joyce McVarrie, JD-Civil Law , ext. 42027. Sister Isabel Smyth Secretary Scottish Inter Faith Council St Mungo’s Museum of Religious Life and Art 2 Castle Street, GLASGOW G4 0RH

Mr Jeremy Balfour Parliamentary Officer Evangelical Alliance (Scotland) Parliamentary Office Eric Liddell Centre 15 Morningside Road EDINBURGH EH10 4DP

Rev Kevin Franz General Secretary Action of Churches Together in Scotland Scottish Churches House DUNBLANE FK15 0AJ

Rev Dr Graham K Blount Scottish Churches Parliamentary Office St Columba’s Episcopal Church 14 Johnston Terrace EDINBURGH EH1 2PW

Rev Dr Finlay A J MacDonald MA BD Principal Clerk to the General Assembly Church of Scotland Offices 121 George Street EDINBURGH EH2 5EL

Mr John Deighan Catholic Parliamentary Office 3rd Floor 12 Renfield Street GLASGOW G2 5AL