2. ESTABLISHMENT AND MEMBERSHIP
Establishment of committees
2.1. Committees are normally established on a motion of the Parliamentary Bureau1 . Such motions also specify the membership, remit and duration of the committee (under Rule 6.1.3). It is also possible for an individual member, by motion, to propose the establishment of a committee (Rule 6.1.2), but in practice, a motion by an individual member would require the support of the Bureau which would lodge the relevant motion for decision by the Parliament.
2.2. Rule 6.1.5 requires that, for each session of the Parliament, seven “mandatory” committees must be established. Since the rules require these committees to be established, and separately specify their remits (Rules 6.4 to 6.11) and duration (Rule 6.12.1), it is, in practice, only the proposed membership of these committees that the Parliament has discretion to accept or reject when it considers the Bureau motion.
2.3. The mandatory committees are the Standards, Procedures and Public Appointments Committee, Finance Committee, Audit Committee, European and External Relations Committee, Equal Opportunities Committee, Public Petitions Committee and Delegated Powers and Law Reform Committee2.
2.4. Two of these mandatory committees, the Standards, Procedures and Public Appointments Committee and Finance Committee, must be proposed to the Parliament by the Bureau within 21 sitting days of the general election (Rule 6.1.6). The other mandatory committees must be proposed by the Bureau within 42 sitting days of a general election.3 All mandatory committees are established for the duration of the session (Rule 6.12.1).
2.5. Most of the other committees established at the beginning of a session are referred to as “subject committees”. (The term is defined in Rule 6.1.4 to mean any committee established to deal with a particular subject, other than a mandatory committee or a committee established only to take certain stages of a Bill.) The practice so far has been for the Bureau to propose subject committees for the main areas of devolved policy, with remits roughly corresponding to the portfolio of a cabinet minister, and for these committees also to be established for the duration of the session. There are no procedural limits on the number of subject committees that may be established, and it is always possible for a new subject committee to be established mid-session, or for an existing one to be disbanded (under Rule 6.12.3).
2.6. Standing Orders provide for a third type of committee, distinct from the mandatory and subject committees, namely committees established for the purpose of taking certain stages of a particular Bill. These include:
Consolidation Committees, Codification Committees, Statute Law Repeals Committees and Statute Law Revisions Committees – established to take Stages 1 and 2 of these specialised types of Bill whose purpose is to tidy up the statute book rather than change the law in substantial respects (Rules 9.18.3, 9.18A 9.19, 9.20).
2.7. Further information about these ad hoc bill committees can be found in the separate Guidance on Public Bills and Guidance on Private Bills. The rest of this Guidance deals only with the mandatory and subject committees.
2.8. Standing Orders (Rule 12.5) allow committees to establish one or more sub-committees4, with the approval of the Parliament on a motion of the Bureau.
2.9. The remit and membership of a sub-committee must also be agreed by the Parliament, on a motion of the Bureau. The remit cannot extend beyond the remit of the “parent” committee (Rule 12.5.2). It is for that parent committee to propose to the Bureau which of its members (and, where appropriate, which members of other committees) are to be members of the sub-committee (Rule 12.5.3).
2.10. Sub-committees are subject to the same rules as other committees in relation to the ability to appoint a temporary convener, rights to attend, the role of substitutes, quorum, timing of meetings and powers to invite witnesses and documents. Sub-committees report to the committees which establish them (rather than directly to the Parliament).
2.11. Each mandatory and subject committee must have at least five but not more than fifteen members, under Rule 6.3.2. In Sessions 1 and 2, most committees had seven, nine or eleven members; in Session 3, most have eight members. In proposing membership, the Bureau must have regard to the balance of the parties within the Parliament and to the qualifications and experience of any member expressing an interest in a particular committee (Rule 6.3.4).
2.12. In practice, the number of seats for each party on each committee is decided on a roughly proportional basis. This gives the larger parties a share of seats on each committee that matches their share of seats in the chamber, while smaller parties may have a single seat on some committees and none on others. It is then primarily for each business manager to advise the Bureau which members of his or her party are to take up the committee places allocated to that party. In this way, most discussions about committee membership take place within the Bureau and, if they are resolved successfully, it may be possible to have a single, unopposed motion for Parliamentary approval. However, it is also possible for any member to propose amendments to the Bureau motion when it is taken by the chamber.
2.13. The only procedural limitation on committee membership is Rule 6.7.2, which prohibits any Minister 5 or junior minister from being a member of the Audit Committee. In practice, no member appointed as a minister or junior minister has also served as a member of a committee at the same time, and members newly appointed as ministers have immediately resigned any committee memberships they hold. The Presiding Officer also does not serve on a committee, although Deputy Presiding Officers have served as committee conveners, members and substitute members.6 Given the number of committees established and the number of members needed to make them effective, it has been necessary for many MSPs to be members of two (and occasionally more than two) committees at once.
Changes in membership
2.14. Under Rule 6.3.5, an MSP appointed to a committee will normally serve as a member of the committee for its duration (whatever duration is decided by the Parliament) unless the committee is disbanded or unless the member resigns, is removed by the Parliament (on a motion of the committee), or ceases to be an MSP (otherwise than by virtue of a dissolution).
2.15. An MSP resigns as a member of (or substitute for) a committee by intimating his or her resignation to the Presiding Officer, as chair of the Bureau (preferably copied to the clerk to the Bureau, the clerk to the committee and the committee convener). Such a resignation takes effect from the date intimation is received by the Presiding Officer (or any later date specified in the intimation) (Rule 17.2A). The clerk to the Bureau copies the intimation to the other Bureau members. An MSP may be removed from a committee by the Parliament only if a motion lodged on behalf of the committee (and therefore with the support of a majority of the committee’s members) is agreed to by the Parliament. Where a committee member ceases to be an MSP (for example, by resigning, being disqualified or on death), his or her membership of the committee ceases immediately, creating a vacancy on the committee. (While that vacancy exists, a party can deploy a committee substitute (paragraphs 2.29-2.37 below)). A vacancy is filled by the Parliament agreeing a Bureau motion to appoint a new member. Membership of the committee is effective from the date on which the Parliament agrees the motion.
Appointment of conveners and deputy conveners
2.16. Under Rule 12.1, each committee must have a convener to convene (i.e. call) its meetings and to chair them.
2.17. It is for the Parliament to decide, on a motion of the Bureau, the political party whose members are eligible to be the convener of each committee (or that the eligible members are those not representing any political party). The Bureau must have regard to the balance of political parties in the Parliament when making such proposals. In practice, the distribution of convenerships among the parties is done using a version of the “d’Hondt” formula. This is an algorithm that can be applied objectively to achieve fair distribution according to numerical strength. The first “round” allocates one convenership to the political party with the most MSPs; in the next round that party’s numerical strength is divided by 2 (i.e. the number of convenerships it has already secured +1) and so on. The only formal restriction is that the convener of the Audit Committee cannot be a member of a Scottish Government party (Rule 6.7.2).
2.18. At its first meeting, each committee is chaired by the oldest committee member present (and willing to perform this function) until a convener is chosen (Rule 12.1.6). The choice of convener is then the first substantive item of business (after declarations of interest). Should more than one eligible member seek the position, it would be for the committee as a whole to choose between them.
2.19. Under Rule 12.1.3, the Parliament may (but need not) also decide (on a motion of the Bureau) that every committee should have a deputy convener. The distribution of deputy convenerships among the parties is also done on a broadly proportional basis, using the d’Hont formula and the choice of deputy convener by each committee is largely a formality. In most cases, the convener and deputy convener are members of different parties, though this need not always be the case.
2.20. The role of the deputy convener (where there is one) is to chair meetings when the convener is unavailable and otherwise to carry out the functions of convener when the convener is unable to do so. More information about the role of the convener can be found in the Guidance for Conveners.
2.21. A convener is not required to be impartial and is entitled to participate in the work of the committee and express his or her view on the topic under consideration. Although there is no provision specifically requiring a convener to reflect the balance of the parties in calling speakers, it is normal practice for the convener to do so. Conveners hold both a personal and a casting vote in the event of a tie. There are no conventions on the use of the casting vote and how it is used is a matter for the discretion of the convener.
2.22. Conveners and deputy conveners hold office for the duration of the committee unless they resign (by letter to the Clerk), are removed from office by a decision of the committee or cease to be MSPs or members of the committee (otherwise than by virtue of a dissolution) (Rules 12.1.8 and 12.1.10). A convener or deputy convener can only be removed from office by the committee if a motion to that effect is agreed by absolute majority7. Any member of the committee may lodge such a motion and, if it is supported by at least one other committee member, it must be taken at the first meeting of the committee that is at least two days later (excluding days when the office of the Clerk is closed8) (Rule 12.1.8B).
2.23. If either the convener or deputy convener ceases to hold office, the committee must choose another convener or deputy convener, subject to the same restriction on party affiliation previously agreed by the Parliament. If that is not possible (for example, because the outgoing convener or deputy convener was the only member of that party on the committee and has not been replaced), the Parliament must take a further decision about the political party from which the convener or deputy convener is to be drawn (Rule 12.1.9).
2.24. Where the office of convener is vacant, the meeting will be chaired by the deputy convener for the purpose of choosing a convener (Rule 12.1.13).
2.25. Where the office of deputy convener is vacant, and there is a convener, he or she will chair the meeting as normal and a new deputy convener will be chosen9.
2.26. Rules 12.1.11 and 15 to 17 make provision for a committee to choose a temporary convener to carry out the functions of deputy convener in certain specific circumstances.
2.27. Temporary conveners are only required when there are deputy convener functions to be carried out and either there is no deputy convener or the deputy convener is unavailable or unable to act (Rule 12.1.11). The need for someone to carry out deputy convener functions may arise
2.28. In the first of these circumstances, the meeting is chaired by the convener (before he or she leaves the chair) or by the oldest committee member who is willing to do so, until a temporary convener is chosen. In the second of these circumstances, the oldest committee member must convene (and then chair, if he or she is willing to do so) a meeting of the committee for the purpose of choosing a temporary convener (Rule 12.1.16). Once chosen, the temporary convener takes the chair and exercises the functions of the convener until the convener or deputy convener (if there is one) is again able to act.
2.29. Each political party which has two or more MSPs may nominate one of its members to be the party’s substitute on each committee (Rule 6.3A). A party can nominate only one substitute per committee on which it has a member and a member cannot be nominated to be a committee substitute for more than two committees (or for a committee of which he or she is already a member) (Rule 6.3A). Nominations are made to the Bureau, which then proposes the substitutes’ names to the Parliament in a motion. A member’s appointment as a committee substitute begins when the Parliament agrees to the Bureau motion and then lasts for the duration of the committee unless the substitute resigns, is removed by decision of the Parliament (on a motion of the committee) or ceases to be an MSP, or unless the party ceases to have two MSPs.
2.30. The main role of the committee substitute is to stand in for a committee member of the same party if that member is unavailable for a committee meeting or is unable to act as a committee member at any other time because of illness, family circumstances, adverse travel conditions beyond the member’s control, a requirement to attend to other Parliamentary business or urgent constituency business (Rule 12.2A.1). “Other Parliamentary business” includes attendance at meetings of other Parliamentary committees (including outside Edinburgh), other committee events (such as fact-finding visits or informal briefings) and participation in external events or activities in the UK or overseas (such as “Tartan Day” or the annual conference of the Commonwealth Parliamentary Association) where the member has appropriate Parliamentary approval to attend as a representative of the Parliament (and not just on behalf of a political party).102.31. Committee substitutes may also stand in where there is a temporary gap in the membership of a committee (for example, where a member has died or resigned, and a replacement member has not yet been appointed). In addition, committee substitutes may stand in for committee members of the same party who are excluded (by Rule 9.13A) from participating in any consideration by the committee of a Bill (or proposal) that they are promoting (unless, of course, the substitutes are themselves excluded by the same Rule).
2.32. It is important to note that a committee substitute is entitled to attend only where the member cannot attend for one of these specified reasons; having a member on a committee and a substitute does not give a party the right to decide which of them attends on a particular occasion. It is good practice for members to notify the convener in writing or in an email of their intention to send a substitute, and their reason for doing so. This should prompt the member to consider why they are sending a substitute, as well as assisting the convener in the management of the meeting.
2.33. When a committee substitute attends a meeting (or other committee activity), he or she assumes the full rights of an ordinary member of the committee. In particular, the substitute can attend meetings (or parts of meetings) held in private, and can vote. However, if two or more members of that party are unavailable, the party substitute still has only a single vote. In addition, a substitute who stands in for the convener, or the deputy or temporary convener, does not take on the additional functions of those offices (Rule 12.2A.5). So if the convener’s substitute, for example, attends in place of the convener, the meeting would be chaired by the deputy convener rather than by that substitute.
2.34. With one exception, where a committee substitute participates in a meeting (or other committee activity) in place of a committee member, the member is prevented from then participating as a member in the remainder of that meeting (or activity) (Rule 12.2A.3). For example, if a substitute takes the place, during a meeting, of a committee member delayed in traffic, that member cannot take over from the substitute if he or she arrives later in the meeting. The member is, however, entitled to attend in the more limited capacity available to all MSPs (under Rule 12.2.2) – i.e. he or she may participate in public items at the discretion of the convener, but may not vote.
2.35. The exception is that, if the substitute is taking the place of a member excluded from consideration of a Bill (or proposal) under Rule 9.13A, the substitute may only participate while the Bill (or proposal) is under consideration, and the member is only excluded for that item. For example, if a committee member is also the member in charge of a Member’s Bill being considered by the committee under item 2 on the agenda, he or she is excluded from participating as a member during that item, and the party’s substitute can take his or her place. If item 2 is taken in private, the member must leave the meeting; but if it is held in public, he or she may continue to attend, but only in another capacity – to give evidence to the committee on the Bill, to question other witnesses, or simply to observe. If there is a division during consideration of the Bill, the substitute has the right to vote but the member does not; but as soon as that item is concluded, that right reverts to the member.
2.36. Where the committee member who is excluded from consideration of a Bill (or proposal) under Rule 9.13A is an independent MSP, or the sole representative of a political party, there will be no committee substitute able to take his or her place. In these circumstances, the Bureau may nominate an MSP as a “Bill substitute” on the committee for the duration of the Bill (under Rule 6.3B). The choice of Bill substitute must not affect the Scottish Government/Opposition balance on the committee. The same MSP may be a Bill substitute for more than one Bill being considered by a committee, and for the same Bill on more than one committee. In terms of participation in proceedings, a Bill substitute has the same rights as a committee substitute standing in for a member excluded under Rule 9.13A – i.e. he or she has the full rights (including voting rights) of a committee member, but only for the duration of relevant items.
2.37. Substitutes are entitled to receive all committee papers, including private papers. They may, however, prefer to receive papers only for meetings they expect to attend, or only normally to receive public papers (getting private papers in addition only for meetings they expect to attend).11
1 Parliamentary Bureau The body within the Parliament responsible under Standing Orders (chapter 5) for proposing the business of the Parliament, recommending the establishment of committees, and other related functions. It is not a parliamentary committee. It consists of the Presiding Officer (chair), a representative of each party that has five or more MSPs, and a representative of any group of five or more smaller-party members or independents. There is a system of weighted voting according to party strength. The Deputy Presiding Officers also attend.
2Until September 2007, the Procedures Committee and the Standards and Public Appointments Committee were separate mandatory committees.
3 Sitting days are defined in Rule 2.1.3. They exclude weekends and some weekdays during recesses.
4 No sub-committees were established in session 1 and only one in session 2.
5 The Scotland Act makes a distinction between “Ministers” (appointed under s.47 of the Act) and “junior Scottish Ministers” (appointed under s.49). Only the former, together with the First Minister and the Scottish Law Officers (Lord Advocate and Solicitor General for Scotland) qualify as “members of the Scottish Executive” (also known collectively as “the Scottish Ministers”). In Session 3, the Scottish Executive has changed its name (except for formal, legal purposes) to “the Scottish Government” and has adopted the terminology of “Cabinet Secretary” for Ministers appointed under s.47 of the Act and “Minister” for junior ministers appointed under s.49. In this Guidance, all references to “ministers” or to “Scottish Government ministers” cover both categories unless the contrary is explicitly stated.
6 Murray Tosh continued as Convener of the Procedures Committee in session 1 after his election as a Deputy Presiding Officer, and was appointed a substitute member of that committee in session 2. He was also a member of the Subordinate Legislation Committee in Session 2. Trish Godman was appointed as a substitute member of the Environment and Rural Development Committee in session 2, having already been appointed a Deputy Presiding Officer.
7 Absolute majority When the number of committee members voting for removal is more than half of the total number of members of that committee or sub-committee (as opposed to the number of members voting) (Rule 11.11.3).
8 The office of the Clerk is closed at weekends, on public holidays and some days during recesses (as decided by the Parliament under Rule 2.1.3).
9 For information on the role of the convener in a meeting, see paragraphs 4.28 to 4.30.
10 See Procedures Committee, 6th Report, 2006, Public Bills and Substitution, paragraph 50.
11 The Procedures Committee, 2nd Report, 2002 envisaged substitutes being routinely circulated with public and private committee papers (paragraph 32). Substitutes may prefer not to receive private papers routinely, however, on the grounds that this imposes additional obligations on them in relation to how these papers are handled.