Part 2 - Preparations for Introduction

2.3         References in this Guidance to “the Minister” or “the member in charge” of the Hybrid Bill are either to the member of the Scottish Government who introduces the Bill (or who is subsequently appointed by the First Minister to take general responsibility for the subject matter of the Bill), or to a junior Scottish Minister designated by him or her (Rule 9C.2.1).

Initial steps

2.4         Scottish Government officials are advised to contact the Non-Government Bills Unit (NGBU) at the Parliament at an early stage.  NGBU is responsible for handling Hybrid Bills, and offers advice to all those involved throughout the process.  This includes advice on the procedural requirements, the likely costs and the timescales involved. 

Pre-introduction consultation etc.

2.5         The standing orders require the Scottish Government to demonstrate (in accompanying documents published on introduction) that it has advertised its intention to introduce the Bill, and that it has consulted on the Bill’s objectives, the ways of meeting those objectives and on the detail of the Bill.  In certain cases, the Scottish Government must also demonstrate that it has notified certain people directly affected and, in some instances, obtained their prior consent.

2.6         It is for the Scottish Government to ensure that there is sufficient time to complete these steps in advance of introduction.  This may take some planning, depending on the circumstances.  For example, where it is necessary to notify people with an interest in heritable property that may be affected, the Scottish Government will need to decide what those properties are, establish who owns or lives in each one, and then prepare the letters to be sent or delivered to them.  However, it is unwise to complete these steps too far ahead of introduction, as this may lead the Hybrid Bill Committee to question whether the reported outcomes can still be relied upon, given the time that has since elapsed.

Preparation of the Bill

“Proper form” and layout of Bills

2.7         Hybrid Bills must conform to the Presiding Officer’s determination on “proper form” under Rule 9C.1.6 (see Annex D(1)).  The Presiding Officer has also made a number of recommendations about the content of Hybrid Bills and the form in which they should be printed (see Annex D(2)).  The aim is to ensure that all Scottish Parliament Bills (and the Acts that they become) conform to standard conventions of style and layout.[1] 

Preparation of accompanying documents

2.8         This part of the Guidance deals with the preparation of the accompanying documents and provides a brief explanation of the function of each document.  All accompanying documents must comply with the Presiding Officer’s determination on the proper form of accompanying documents (see Annex E).   Other determinations made under Rule 9C.3.2 are also relevant to the information that must be included in accompanying documents, and these are explained by reference to specific documents below.   

2.9         Under Rule 9C.3.2, every Hybrid Bill must be accompanied on introduction by:

·         a statement on legislative competence by the Presiding Officer (Rule 9C.3.2(a))

·         Explanatory Notes (Rule 9C.3.2(c))

·         a statement on legislative competence by the member introducing the Bill (Rule 9C.3.2(d))

·         a Policy Memorandum (Rule 9C.3.2.(e))

·         a Financial Memorandum (which must contain additional information if the Bill is a “works Bill” – i.e. one to which Rule 9C.1.2 applies) (Rule 9C.3.2(f) or (g)(i))

·         a Scottish Ministers’ Statement (which must contain additional information if the Bill affects heritable property) (Rule 9C.2.3(h)).

2.10      In certain circumstances, an Auditor General’s Report may also be required (Rule 9C.3.2(b).

2.11      The Scottish Government is responsible for preparing all of these other than the first.

2.12      Additional accompanying documents are required for Hybrid Bills to which Rule 9C.1.2 applies, sometimes referred to as “works” Hybrid Bills.  These are Bills that seek to authorise the construction or alteration of certain classes of works, or the compulsory acquisition or use of any lands or buildings.  As well as requiring additional information in the Financial Memorandum (as noted above), such Bills must be accompanied on introduction by––

·         certain maps, plans, sections and books of references (or a statement as to why they are not provided) (Rule 9C.3.2(g)(ii)), and

·         an Environmental Statement (Rule 9C.3.2(g)(iii)).

 

2.13      The specific requirements of the Rules and determinations applying to each accompanying document are set out below.  It is the role of the clerks, prior to introduction, to check compliance with these Rules and determinations, including by satisfying themselves that all the required information has been provided.  But it is not their role to endorse the accuracy of that information or to validate whatever methods are described.  For example, while the clerks’ role is to ensure that the Policy Memorandum includes a reasonable amount of information about the consultation undertaken on the Bill, it is not for them to judge whether that consultation was carried out effectively.  This is, however, something that the Minister can expect to be questioned closely about at Stage 1, by the Hybrid Bill Committee.

Auditor General’s Report

2.14      This document is required only in relation to a Bill containing provisions “charging expenditure on” the Scottish Consolidated Fund (SCF) (Rule 9C.3.2(b)).  A charge on the Fund is a charge which the Scottish Government is required to pay without obtaining further authority from the Parliament by means of a Budget Bill.  By agreeing to the provision, the Parliament voluntarily gives up its right to scrutinise the budget for the item concerned.  Where a Bill contains such provisions, the Auditor General is required to set out his or her views on whether such a charge is appropriate.

Explanatory Notes

2.15      The Explanatory Notes normally provide a brief overview of what the Bill does, followed by a more detailed commentary on the individual provisions.  Their purpose is to summarise objectively and clearly what each provision of the Bill does and to give other information necessary or expedient to explain the effect of the Bill.  They must be neutral in tone and should explain what the Bill does without seeking to justify the policy or advocate its merits. They should be as clear and readable as possible so as to be comprehensible to people with no legal or specialist knowledge.  Explanatory Notes can be useful to the reader in describing the legal context in which the Bill operates, including reference to relevant statute and common law, and explaining specialised terminology used in the Bill. Straightforward or self-explanatory provisions do not require explanation in the Notes.

Minister’s statement on legislative competence

2.16      Every person introducing a Bill in the Parliament is required (under section 31(1) of the Scotland Act 1998, as amended by section 6 of the Scotland Act 2012)) to make a statement on the Bill’s legislative competence.  The established form of words for such a statement is: “In my view, the provisions of the [short title] Bill would be within the legislative competence of the Scottish Parliament.”  The statement must be in writing, and must be signed by the Minister who introduces the Bill.

Policy Memorandum

2.17      The Policy Memorandum sets out the Bill’s policy objectives, what alternative approaches were considered, the consultation undertaken (including, in the case of a “works” Bill, consultation with the mandatory consultees), and an assessment of the effects of the Bill on equal opportunities, human rights, island communities, local government, sustainable development and other matters considered relevant. It provides an opportunity to argue the case for the Bill, and so can provide a useful complement to the Explanatory Notes.

2.18      The Memorandum should specify in reasonable detail what consultation was undertaken on the proposals in the Bill.  Such details might include the means by which consultees were selected, the manner in which they were approached, when the consultation was carried out, what was consulted on and with whom, the number of responses received and what (if any) changes to the proposal were made as a result.

2.19      Where Rule 9C.1.2 applies to the Bill (i.e. because it seeks to authorise the construction or alteration of certain classes of works or the compulsory acquisition or use of any lands or buildings), the Memorandum should also describe what consultation was carried out (under Rule 9C.1.8) with the mandatory consultees (listed in Annex C).  That Annex sets out what aspects of the project the Scottish Government must consult the mandatory consultees on, and the timescales for the consultation.  It also requires the Scottish Government to inform the mandatory consultees of their right to lodge statements in relation to that consultation with the Parliament, during the objection period (under Rule 9C.8).

2.20      It is in the Scottish Government’s interests to ensure that the consultation undertaken is meaningful and effective, as this is liable to be a focus of scrutiny by the Hybrid Bill Committee.  While it is up to the Scottish Government to decide what is appropriate in the circumstances, the Committee is likely to look for evidence that the consultation was widely advertised to all those with an interest, whether they were likely to be supportive or hostile; that it explained what the Bill would do in a clear, open and balanced way; and that consultees were given adequate time, and a range of means, to feed in their views. 

2.21      Effective consultation can provide helpful feedback, enabling the Bill to be improved; it can also help to allay fears and suspicions and so reduce the likelihood of objections being lodged once a Bill is formally introduced.

Financial Memorandum

2.22      The content of the Financial Memorandum varies according to whether the Bill is one to which Rule 9C.1.2 applies.

2.23      If the Rule does not apply, the requirements for the Financial Memorandum are the same as for other Public Bills (Rule 9C.3.2(f)).

2.24      Such a Memorandum must set out best estimates of the expected costs of the Bill to the Scottish Administration (i.e. the Scottish Government, in the broad sense of Ministers, departments and agencies), to local authorities and to other bodies, individuals and businesses.  In each case, the Memorandum should indicate the timescales over which such costs are expected to arise and the margins of uncertainty in estimates given.   

2.25      The additional information required in the Financial Memorandum accompanying a “works Bill” (i.e. a Bill to which Rule 9C.1.2 applies) is explained further below.

Scottish Ministers’ Statement

2.26      The main purpose of the Scottish Ministers’ Statement is to set out how the Scottish Government has notified and made information available to those likely to be affected. The Presiding Officer has made determinations on various aspects of what the Statement must include and these determinations are set out in Annexes F and G.  The determination at Annex E specifies the proper form of certain elements of the document. 

Notification of people with an interest in heritable property affected by the Bill

2.27      The first requirement of the Scottish Ministers’ Statement applies only to Hybrid Bills that affect heritable property.  This is likely to include any Bill to which Rule 9C.1.2 applies.  However, some non-works Bills may still trigger the requirement – for example, if the effect of the Bill would be to reduce amenity for people living in a particular area.  If it is unclear whether this requirement applies, the Scottish Government should seek advice from NGBU.

2.28      Where the requirement applies, the Statement must give details of the notification given by the Scottish Government to certain persons having an interest in that property (Rule 9C.3.2(h)(i)). 

2.29      In practice, this requires the Scottish Government firstly to identify which properties are affected by the Bill, then to establish who has a relevant interest in each such property, and finally to notify (if possible) each such person.  The Scottish Ministers’ Statement should give an explanation of how each step was carried out. 

2.30      Which properties are affected may sometimes be clear from the Bill (for example, where there is provision for specified land to be compulsorily purchased).  But in other cases, the impact of the Bill may be indirect and the Scottish Government will need to adopt criteria for deciding which properties the Bill can be said to affect (for example, in relation to noise impact, by reference to distance from a specific location).  Any such criteria should be explained in the Statement.

2.31      The Statement should then explain (in general terms) the methods used to identify those persons considered to have an interest in each property.  Annex F(1) lists certain broad categories of persons, and the Statement should confirm that the relevant sources (e.g. the Land Register) have been checked.  The Statement should also record whether or not there are people whose identities could not be established, and when the relevant inquiries were made.

2.32      Finally, the Statement should outline the means by which notification was given to the persons identified as having an interest in affected properties.  This will normally involve hand-delivering, or posting by recorded delivery, a letter to each affected person (in the case of a business, to a secretary, chair or other responsible officer), or to the occupier of each affected address. 

2.33      The function of the notification letter is to inform a person or body who may be affected by the proposed Hybrid Bill of the Scottish Government’s intention to introduce it on, or around, a specific date.  In particular, it should inform the person/body of how the Bill may affect any land or building in which the person/body has an interest.  The letter should also explain how to obtain further information about the Bill and the Parliamentary process to which it will be subject, how to lodge an objection to the Bill and refer to the 60-day objection period.  It may be helpful to use as a starting point the model letter set out in Annex F(2).

Advertisement of Ministers’ intention to introduce Bill

2.34      In relation to every Hybrid Bill, the Scottish Ministers’ Statement must include details of the advertisement of their intention to introduce the Bill (Rule 9A.2.3(d)(iv)).  Advertising must be done in two ways – by taking out advertisements in newspapers, and by arranging to have notices put up in public libraries (see Annex G).

2.35      The precise requirements, in each case, vary according to whether the Bill is one to which Rule 9C.1.2 applies. 

2.36      In relation to newspaper advertising, the following points are worth noting:

·         Where advertisements require to be placed in two newspapers, it is not necessary for each to circulate throughout the relevant area, but together they must do so.  Thus, for example, the Scottish Government may choose to advertise in one local or regional paper that has a high circulation in most of the area affected by the Bill, together with one other paper that circulates in the remainder of that area. 

·         The Edinburgh Gazette may be counted as a newspaper circulating throughout Scotland.  The Gazette is a formal paper of record, but is not widely read by the general public, so it cannot be used as the only newspaper in which advertisements are placed, and the other must be a newspaper that circulates throughout the relevant area.

·         A copy of the newspaper advertisement must be provided to NGBU clerks, who will arrange for it to be posted on the Parliament’s website.[2]  This provides a further means by which the public can be made aware of the forthcoming Bill, at no additional cost to the Scottish Government.

2.37      In relation to notices in libraries, the following points are worth noting:

·         Depending on the circumstances, notices must be placed in a minimum of three public libraries, or in one library in each of the 32 local authority areas.

·         The text of the notice must contain at least as much information as the newspaper advertisement.  The Scottish Government will, understandably, wish to keep the text of newspaper advertisements concise, to minimise costs, but is encouraged to provide additional detail in the context of a library notice.

·         The obligation on the Scottish Government is to request that the notices be prominently displayed for at least a two-week period, but it is recognised that this may depend on factors outwith its control.  Some libraries do not have noticeboards, and library staff cannot always guarantee that notices posted on them are not later removed or obscured.

List of premises where accompanying documents may be inspected

2.38      In relation to every Hybrid Bill, the Statement must include a list of premises at which it is possible to inspect the Bill and accompanying documents (Rule 9C.3.2(h)(iii).  The list must include—

·         the premises to which the Bill and accompanying documents are sent, on introduction, by the Parliament (under Rule 9C.4.2), and

·         any other premises at which the Bill and accompanying documents are to be available for inspection.

2.39      For any works Bill (i.e. a Bill to which Rule 9C.1.2 applies), the premises in the first part of the list must include all public libraries within the area in which works are proposed or in which land that is to be compulsorily acquired or used is situated – but if there are fewer than three libraries within that area, further libraries must be identified that are nearby, so as to make the number of libraries up to at least three.

2.40      For a non-works Bill (i.e. a Bill to which Rule 9C.1.2 does not apply), the premises in the first part of the list must include at least one library or other appropriate premises (e.g. an office operated by the Scottish Administration) within each of the eight Scottish Parliament regions.  However, where the Bill would have a particularly significant impact within one or more of those regions, a greater number of libraries or appropriate premises within the region or regions in question must be included – e.g. at least three within the region of North-East Scotland (see Annex H).  This should ensure that the members of the public most likely to wish to inspect documents can gain access to them within a reasonable distance from where they live.

2.41      In either case, which premises are included in the first part of the list will need to be agreed between the Scottish Government and NGBU, since NGBU is responsible for sending the Bill and the accompanying documents to these agreed premises following introduction (Rule 9C.4.2).  Various factors may be relevant to the choice of premises – including their geographical distribution and accessibility.  Scottish Government officials may need to contact the staff of public libraries to check whether they are prepared to take copies of the documents and make them available on request to the public.  

2.42      It is also open to the Scottish Government to include in the list (in the Scottish Ministers’ Statement) additional premises to which it (rather than NGBU) intends to make copies of the Bill and accompanying documents available for inspection – in which the case, the Statement must include an undertaking to send those documents to those additional premises.

2.43      With any Hybrid Bill (whether or not it is a works Bill), there may be documents that are relevant to the Bill but are not accompanying documents.  This may include, for example, illustrations of how a proposed development might appear once completed. It is good practice for the Scottish Government to send copies of such documents to all the premises listed in the Scottish Ministers’ Statement, so that they can be made available to interested members of the public along with the Bill and accompanying documents. 

2.44      With a non-works Hybrid Bill (that is, one to which Rule 9C.1.2 does not apply), the Parliament is required (under Rule 9C.4.1) to print and publish the Bill and all the accompanying documents.  In particular, this means that all these documents will be available, from the day after introduction, on the Parliament’s website.  With a works Hybrid Bill, the documents that the Parliament is required to print and publish exclude the additional accompanying documents required only for such a Bill – namely, maps, plans, sections, books of references and the Environmental Statement – and these documents may therefore not be available on the Parliament’s website.  If there are documents that are relevant to the Bill but are not accompanying documents, these may also not be available on the Parliament’s website. 

2.45      Some members of the public may not be able to travel to a public library or other premises to inspect them (and the libraries or premises where they are available for inspection may not have the facilities for making or selling copies).  Accordingly, it is helpful if the Scottish Ministers’ Statement also includes information about how these documents may be viewed online (e.g. from the Scottish Government’s own website) and/or how printed copies may be purchased, e.g. in person at specified premises, by post or online.

Undertaking to pay costs

2.46      The Scottish Ministers’ Statement must also include (under Rule 9C.2.3(h)(iv)) an undertaking to reimburse the Scottish Parliamentary Corporate Body for certain costs it incurs, during the passage of the Hybrid Bill, in connection with the appointment and use of an assessor. 

2.47      The SPCB has determined (see Annex J) that these costs comprise:

·         the assessor’s professional fees

·         any travel, subsistence and accommodation costs reasonably incurred by the assessor

·         certain costs associated with public assessor hearings (including the costs of preparing a transcript, broadcasting the proceedings, and providing security staff)

• the costs involved in the assessor notifying people whose interests may be adversely affected by amendments lodged to the Bill. 

 

2.48      The form of words to be used for this undertaking is set out in Annex E. 

2.49      As an assessor may be appointed only in connection with a works Bill (i.e. one to which Rule 9C.1.2 applies), the undertaking is not required if the Bill is a non-works Bill.

Accompanying documents required only for “works” Bills

2.50      Rule 9C.3.2 includes certain additional requirements in relation to accompanying documents if the Hybrid Bill is a “works Bill” (i.e. one to which Rule 9C.1.2 applies).  The specific requirements of each of these documents are outlined below.

Financial Memorandum

2.51      The Financial Memorandum for a works Hybrid Bill must include additional information compared with that required for a non-works Bill – as outlined in paragraph 2.24 above.

2.52      Such a Financial Memorandum must set out (under Rule 9C.3.2(g))—

• the estimated total cost of the project, together with a detailed cost breakdown for each element of the project
• the administrative, compliance and other costs involved
• a detailed breakdown of all anticipated and committed sources of funding, covering both capital and revenue costs
• best estimates of the timescales over which such costs would be expected to arise, and
• the margins of uncertainty in all these estimates.

 

2.53      In doing so, the Memorandum must distinguish separately the costs expected to be borne by the Scottish Administration (i.e. the Scottish Government in the broad sense of Ministers, departments and agencies), by local authorities and by other bodies, individuals and businesses.

Maps, plans, sections and books of references

2.54      Hybrid Bills to which 9C.1.2 applies must be accompanied by certain maps, plans, sections and books of references. Further requirements about maps, plans and sections are set out in Annex K.

2.55      A book of references is a document that provides further information about areas of land (or water) directly affected by the Bill.  Annex E includes pro forma wording for the opening paragraph of this document.  Annex K gives further detail about what the document should cover.

2.56      It is helpful for the main part of the document to be set out in the form of a table, with the columns labelled along the following lines:

·         Number (or other identifier) – to identify the plot of land concerned by reference to the Bill or an accompanying map or plan

·         Description – giving extent (e.g. in square metres or hectares) and brief indication of type of land and its location (e.g. by postal address)

·         Nature of impact – e.g. compulsory acquisition, right to use, extinguishment of rights

·         Owners – name(s) and address(es) of owners of the land

·         Lessees – name(s) and address(es) of any lessees of the land (if applicable)

·         Occupiers – name(s) and address(es) of any occupiers of the land (if different from the owners or lessees).

2.57      In the columns for owners, lessees and occupiers, the source of information for the names and addresses given should also be included.

Environmental Statement

2.58      The final accompanying document required only for a Hybrid Bill to which Rule 9C.1.2 applies is an Environmental Statement.  This must contain the same information about the Bill’s anticipated environmental impact as would be required by relevant environmental legislation (Rule 9C.3.2(g)(iii)). 

2.59      Annex L provides full details of the information that is required, including by reference to the relevant environmental legislation.  The final two elements of what the Environment Statement must include (i.e. paragraphs (d) and (e) of the Annex) should be labelled as a Code of Construction Practice, and a Noise and Vibration Policy.

Introduction of the Bill

Timing of introduction

2.60      Under Rule 9C.1.4, a Hybrid Bill can be introduced on any “sitting day”.  A sitting day is, under Rule 2.1.3, any day when the office of the Clerk is open but not when the Parliament is in recess or dissolved.  The office of the Clerk is open on most weekdays throughout the year, other than the main public holidays.[3] 

Pre-introduction consideration

2.61      Once the Scottish Government has finalised the text of the draft Bill, it is submitted to the Parliament for pre-introduction consideration, together with drafts of all the accompanying documents.  This is normally done three weeks before the proposed date of introduction.  Periods of Parliamentary recess and public holidays cannot usually be counted towards the three weeks.  

2.62      During this pre-introduction period, clerks in the Legislation Team (separate from NGBU) prepare the Bill and the relevant accompanying documents for publication, and check that the Bill itself is in “proper form” (see Annex D).  They also consider, and advise the Bill’s drafters on, certain procedural issues that may arise later in the Bill’s passage – including what amendments to the Bill are likely to be considered admissible (under Rule 9C.14.6), whether there is any need for Crown consent to be signified (under Rule 9C.15) and whether a financial resolution is likely to be required (under Rule 9C.16).  The Legislation Team clerks may also raise any suggestions they may have about the drafting of the Bill or accompanying documents.

2.63      During the same period, the Office of the Solicitor to the Scottish Parliament (OSSP) prepares advice on legislative competence, in order to assist the Presiding Officer in making the statement required by section 31(2) of the 1998 Act (and by Rule 9C.3.2(a)).

Formal introduction

2.64      A Hybrid Bill that has been submitted for pre-introduction consideration together with drafts of all the relevant accompanying documents can only be formally introduced at the end of that period once various pre-conditions have been met.

2.65      One is that the Presiding Officer’s statement on legislative competence has been signed.  The Scottish Government will be notified as soon as this has happened.  The other pre-conditions are that a signed copy of the Bill itself (Rule 9C.1.9) and a signed copy of the Minister’s statement on legislative competence (Rule 9C.3.2(d) have been lodged with the Legislation Team.  This should be done only towards the end of the 3-week period, once it has been confirmed that there are to be no final adjustments to the Bill’s drafting. 

2.66      Introduction of the Bill is recorded in the Parliament’s Business Bulletin.[4] Information on the progress of a Bill through the Parliament also appears in the Bulletin.

Publication and distribution

2.67      Following introduction, the Legislation Team arranges for the Bill and the accompanying documents (other than, in the case of a “works” Bill, any maps, plans, sections and books of references and the Environmental Statement) to be printed and published.  These documents are available, from 8 am on the day following introduction, in hard copy and on the Parliament’s website.

2.68      Bills appear in “pdf” format on the website, so that page and line breaks remain identical to the printed version. This enables the internet user to make sense of amendments, which are worded by reference to the page and line numbers.

2.69      The clerks then distribute copies of the Bill and accompanying documents to the agreed premises (as listed in the Scottish Ministers’ Statement).  In the case of a Bill to which Rule 9C.1.2 applies, the clerks also send copies to the mandatory consultees.  It is for the Scottish Government to send copies of any other documents that are relevant to the Bill but are not accompanying documents to those agreed premises (and to the mandatory consultees), and to send copies of the Bill and other documents to any additional premises (other than those agreed) at which it wishes them to be available for inspection.

Delegated powers memorandum

2.70      If a Hybrid Bill contains any provision that confers power to make subordinate legislation, or confers on Ministers power to issue any directions, guidance or code of practice, then immediately after introduction the member in charge of the Bill must (under Rule 9C.5.1) lodge a memorandum on delegated powers.  This must set out:

·         the person or body upon whom the power is conferred on and the form in which the power is to be exercised

·         why is it considered appropriate to delegate the power, and

·         the Parliamentary procedure (if any) to which the exercise of the power is subject and why it was considered appropriate to make it subject to that procedure (or not to make it subject to any procedure).

2.71      Any such “delegated powers memorandum” is published on the Parliament’s website, alongside the Bill and accompanying documents.