Part 4 - Hybrid Bill Committee

Establishment and membership

Establishment of Committee

4.1         Following the introduction of a Hybrid Bill, the Parliament must establish a Hybrid Bill Committee to consider it.  It is for the Parliamentary Bureau to propose the relevant motion (Rule 6.1.3). The motion normally specifies the name, remit and duration of the Committee, and the party from which the Convener and Deputy Convener are to be chosen.  The names of the Committee members may be included in the same or a separate Bureau motion.

Remit and duration

4.2         The remit of a Hybrid Bill Committee is to consider and report to the Parliament on the Bill in question.  What this involves, and the role of other committees in scrutiny of the Bill, is explained in detail in Part 5. 

4.3         Hybrid Bill Committees are normally established for the duration of the Bill – that is, until the Bill is passed or rejected, falls or is withdrawn. In practice, the Committee’s role will normally be at an end once Stage 2 is completed.

Membership

4.4         Under Rule 9C.6.2, a Hybrid Bill Committee must consist of three, four or five members.

4.5         There are various constraints on who can serve as a member of a Hybrid Bill Committee. As with other committees of the Parliament, the Parliamentary Bureau is required (Rule 6.3.4) to have regard to the balance of political parties within the Parliament and to take into account the qualifications and experience of any member who has expressed an interest in serving on the committee. Although seats on committees are normally allocated in proportion to the strength of the parties (as measured by their number of MSPs), the small size of Hybrid Bill Committees usually makes proportionality across all the parties impossible.

4.6         In addition to these general constraints on membership, the quasi-judicial role that Hybrid Bill Committees are expected to perform makes it important that their members are, and are seen to be, neutral and impartial. Accordingly, under Rule 9C.6.3, the following may not be appointed to a Hybrid Bill Committee—

·         an MSP whose principal place of residence is within the area of any works that the Bill would authorise 

·         an MSP who owns (or has any other right or interest in) any land or buildings that would be subject to compulsory acquisition or use under the Bill

·         an MSP whose constituency or region includes any part of the area of any works that the Bill would authorise

·         an MSP whose constituency or region would, in the opinion of the Parliamentary Bureau, be particularly affected by any such works 

·         an MSP who has a financial interest that, in the opinion of the Parliamentary Bureau, directly relates to the subject matter of the Bill

·         an MSP who has any other interest registered in the Register of Interests of Members of the Scottish Parliament[1] that the Parliamentary Bureau considers would, or would be likely to, prejudice the MSP’s ability to participate in the Committee’s proceedings in an impartial manner.

4.7         The function of the Register of Interests is to provide information about certain financial interests of members, namely those which “might be thought to influence a member’s actions, speeches or votes in the Parliament”.[2]  In most contexts, the existence of a financial interest requires to be registered and declared in relevant contexts, but does not prevent the member from participating in the proceedings of the Parliament.

4.8         In relation to a Hybrid Bill Committee, however, the test is simply whether the member has a financial interest that, in the Bureau’s opinion, directly relates to the subject matter of the Hybrid Bill, even if the amounts involved are below the normal threshold for registration. Accordingly, to ensure that the Bureau is in a position to judge eligibility for membership of a Hybrid Bill Committee, any MSP who has been nominated must bring to the attention of the Bureau any unregistered financial interest they have in relation to the subject-matter of the Bill (Rule 9C.6.4).

4.9         In addition, the rules exclude from membership of the Hybrid Bill Committee any member with a registered interest that (in the Bureau’s opinion) is likely to prejudice his or her ability to consider the Bill impartially.

4.10      To further demonstrate the importance attached to the impartiality of members, a declaration of impartiality must be made at the first meeting they attend (see below).

Changes of membership

4.11      The circumstances in which a member of a Hybrid Bill Committee may cease to be a member of it are the same as for other committees – namely, resignation, removal from office by the Parliament on a motion of the Committee, and ceasing to be an MSP (Rule 6.3.5). In such an event, the Bureau may appoint a replacement member. However, if the membership of a Hybrid Bill Committee falls below two, the Bureau is required (Rule 9C.6.10) to establish a new Committee.

4.12      If a new Hybrid Bill Committee is established under these circumstances and the Bill was, at the time, part-way through a Stage, then the new Committee may pick up at the point where the previous Committee left off only if two conditions are met.

4.13      The first condition applies where earlier proceedings at the Stage in question had involved the Committee taking oral evidence, and the condition is that everyone who gave that evidence must either give it again orally to the new Committee, or agree that the new Committee members can instead view a recording or read the Official Report of the earlier proceedings. 

4.14      The second condition – which applies whether or not oral evidence was previously given – is that all those with a right to give evidence at Stage 2 (under Rule 9C.11.5) agree.  If the previous Committee had already identified which objectors had such a right (by choosing lead objectors and considering whether the interests of other objectors were still adversely affected by the Bill), then it is only those objectors so identified – together with the Minister – whose agreement is required.  If the previous Committee had not identified which objectors had a right to give evidence, then the agreement of all remaining objectors – together with the Minister – is required.

4.15      If these two conditions are not met, the new Hybrid Bill Committee must go back to the beginning of any Stage that was left uncompleted by the previous Committee. Even if the conditions are met, the new Committee may prefer to begin evidence-taking again if its membership is substantially different from that of the original Committee or if the amount of evidence to be re-heard is not substantial.

4.16      The need either to comply with the above conditions or to go back to the beginning of the Stage in the event of a new Hybrid Bill Committee being established does not arise where consideration of objections is being undertaken by an assessor (whose appointment is unaffected by the change in Committee).  In those circumstances, Rule 9C.6.13 provides for the assessor’s report to be considered by the new Committee.

Attendance at meetings

4.17      Like other committees, a Hybrid Bill Committee cannot commence consideration of any business or vote with fewer than three members present (Rule 12.2.1).

4.18      Partly because of the small size of Hybrid Bill Committees and partly because of the special nature of their proceedings, members are expected to attend all meetings of the Committee, and may be absent from a meeting only in exceptional circumstances (Rule 9C.6.8). In particular, at Stage 2, a member of the Committee may not participate in any consideration of the merits of an objection, or in any further proceedings relevant to that objection, unless either—

·         he or she was present on each occasion when the Committee took oral  evidence directly relevant to that objection, or

• each person who gave oral evidence in the absence of the member, and the Minister, agree that the member may instead view a recording of the relevant proceedings or read the Official Report (Rule 9C.6.9).

(This does not, however, apply where the Committee is considering the merits of an objection by reference to a report prepared by an assessor, since it will then have been the assessor rather than the Committee members in whose presence the evidence was given.)

4.19      Unlike the position for most other committees, substitute members cannot be appointed to a Hybrid Bill Committee (Rule 6.3A.3).  The Rules on “Bill substitutes” (Rule 6.3B) also do not apply in the context of a Hybrid Bill Committee.

4.20      For all these reasons, it is particularly important that members of Hybrid Bill Committees notify the clerks as far ahead as possible of any circumstances that might prevent them attending all or part of a scheduled meeting, so that consideration can be given to changing the times of the meeting or re-scheduling it altogether.  If such circumstances arise during a meeting, it may be necessary for the meeting to be adjourned for a time, or closed early.  Because of the inconvenience this may cause to non-MSPs involved in the proceedings, members should make every effort to ensure that such circumstances do not arise.

First meeting

Declarations of interest and impartiality

4.21      All members of committees are expected under the Code of Conduct to declare any interests they have that are relevant to the remit of the committee, at the first meeting they attend.[3]

4.22      In addition, each member of a Hybrid Bill Committee must, at the first meeting he or she attends, make the following declaration (under Rule 9C.6.5):

“I declare that I will act impartially, in my capacity as a member of the [name] Committee, and will base my decisions solely on the evidence and information provided to the Committee.”

Convener and Deputy Convener

4.23      Like other committees, a Hybrid Bill Committee must choose a Convener at its first meeting.  In practice, this is normally a formality, as the Parliament will already have decided that only members of a particular political party are eligible to be the Convener (in the motion establishing the Committee), and there is likely to be only one member of the Committee from that party. 

4.24      Until the Convener is chosen, the meeting is chaired by the oldest Committee member present (Rule 12.1.6 and 12.1.19).

Role of Convener and Deputy Convener

4.25      The Convener holds office for the duration of the Committee unless he or she resigns, is removed from office by a decision taken by an absolute majority of the Committee, or ceases to be a member of the Committee or an MSP.  If the convener ceases to hold office, the Committee must choose a successor (Rules 12.1.8 and 12.1.9).  In these circumstances, the Bureau may propose a fresh motion specifying the party from which the convener is to be taken.

4.26      The convener’s role is to convene and chair all meetings of the Committee and (with the assistance of the clerks) to ensure that it follows the applicable procedures.  The convener can vote in any division, and must exercise a casting vote in the event of a tie.

4.27      If the Parliament decides, when it establishes the Committee or subsequently, that the Committee should have a deputy convener, the Committee must choose one of its members to occupy that position.  As with the convener, the Parliament chooses the political party, and the Committee’s choice is therefore usually a formality.  The main role of the deputy convener is to chair meetings of the Committee in the absence of the convener.  He or she is also likely to share with the Convener responsibility for speaking on behalf of the Committee in Chamber debates on the Bill.

Sub-committees and reporters

4.28      Like other committees of the Parliament, Hybrid Bill Committees can establish sub-committees (with the agreement of the Parliament on a motion of the Parliamentary Bureau), or appoint members as reporters (Rules 12.5 and 12.6). However, given the presumption in favour of all evidence being heard by all Committee members, it is not expected that Hybrid Bill Committees will seek to use these powers.

Assessors

4.29      In the case of a Hybrid Bill to which Rule 9C.1.2 applies (sometimes referred to as a “works Bill”), the Hybrid Bill Committee can decide (at Stage 1) to direct the Parliamentary corporation (the SPCB) to appoint an assessor to undertake some of the detailed work on the Bill at Stage 2 (assuming the Bill proceeds that far).

4.30      The main role of an assessor is to consider the evidence given by the Scottish Government and objectors at Stage 2, and to report to the Committee with recommendations.  The assessor may also be asked to carry out an initial assessment of the objections and recommend to the Committee how they should be grouped, which objectors should be chosen as lead objectors, and whether the evidence invited should be oral, written or both (Rule 9C.10.3).

4.31      Where an assessor is appointed and the Committee agrees (whether or not on the assessor’s recommendation) that the evidence invited should include oral evidence, it is for the assessor to conduct the oral evidence hearings as he or she sees fit.  While these are not proceedings of the Committee, they are in practice conducted in a similar way, including with the parties leading their own evidence and cross-examining each other’s evidence.  The Committee clerks may assist the assessor in preparing for these meetings, much as they would do with Committee meetings.  A transcript of any oral proceedings held in public (similar in style to the Official Report of a Committee meeting) is prepared and published.

4.32      Following the completion of assessor hearings, the assessor prepares a report, with recommendations, and provides it to the Committee.  It is then for the Committee to reach decisions, based on the assessor’s report, just as it would do if it had taken that evidence itself.  (See also Part 5.)

Clerks, advisers and other staff

Clerks to the Committee

4.33      Each committee has one or more clerks.  The clerks are members of the staff of the Parliament whose general role is to provide administrative and procedural support to the Parliament as a whole and to its members.  The specific role of the clerk to a committee is to arrange meetings; prepare the agenda, papers and minutes; provide procedural advice to the convener and other members; liaise with the Scottish Government, objectors and witnesses; and draft the committee’s reports.

4.34      The clerks do not normally speak during public committee meetings but may do so, on the invitation of the convener, in relation to a factual or procedural query. A committee may not meet without a clerk present.

Parliament legal advisers

4.35      A committee may have in attendance one or more of the Parliament’s legal advisers, whose general role is to provide the members and clerks with legal advice.

Official reporters and broadcasters

4.36      For every Committee meeting held in public a substantially verbatim report of the proceedings is published (Rules 16.2 and 16.5).  Members of the staff of the Official Report attend meetings and sit at the table for the purpose of preparing this report.  A broadcast (audio-visual or audio only) is also made of all public committee proceedings.  Members of broadcasting staff are present at meetings to control cameras and to operate microphones.

Security staff

4.37      Members of the Parliament’s security staff are present during all public committee meetings. Their role is to assist with public access, maintain order and pass messages to and from members and others.

Advisers

4.38      Like other committees, Hybrid Bill Committees may seek to appoint advisers to assist them in their work.  Advisers are only likely to be appointed if the Bill raises complex or specialised issues and where relevant expertise is not available from within the Parliament.  Advisers provide informed, impartial advice to the Convener and other members, and to the clerks.  They usually attend meetings, and may contribute to the proceedings, although they do not participate directly in evidence-taking.

Committee meetings

Time and place of meetings

4.39      Like all committees, Hybrid Bill Committees normally meet in the morning, on Tuesdays, Wednesdays or Thursdays, although they can occasionally meet at other times or on other days.  Hybrid Bill Committees have more latitude than most other committees to meet, or continue to meet, while a meeting of the Parliament is in progress (Rules 9C.6.6 and 7). In practice, it is for the Committee as a whole to decide how often it needs to meet to carry out the work required of it, and it is for the Convener to make final decisions about the dates and times of meetings.  These will be advertised in advance on the Committee’s web-page and in the Parliament’s Business Bulletin.

4.40      Committees may, subject to the approval of the Parliamentary Bureau and Conveners Group, meet anywhere in Scotland (Rule 12.3.2).  Depending on the subject-matter, a Hybrid Bill Committee may sometimes meet in or near the area affected by the Bill.  Assessor hearings may also sometimes be held in the local area.

4.41      In addition, Committee members (or an assessor) may wish to undertake visits to relevant sites, in order to inform themselves about the context for the Bill and its likely impact.  Where such a visit is hosted by the Scottish Government, objectors may be given the opportunity to observe.

Public and private meetings

4.42      Like other committees, Hybrid Bill Committees normally meet in public (Rule 12.3.4).  Any committee may meet in private if it so decides, but it may not do so when considering legislation except where, for the purpose of taking evidence, it decides that it is appropriate that a meeting, or part of a meeting, should be held in private (Rule 12.3.5).  This might arise in relation to evidence of a commercially sensitive nature, for example.  In addition, like other committees, Hybrid Bill Committees may decide to take certain agenda items in private where these do not relate directly to the consideration of the Bill.  This may include, for example, agreeing their approach to a particular Stage of the process, preliminary consideration of objections, a decision on whether to appoint an adviser or an assessor, or consideration of a draft report.

4.43      Decisions to hold a meeting, or part of a meeting, in private should if possible be taken at a previous meeting of the Committee.  This helps to make clear in advance to members of the public who might wish to attend that they will not be able to do so.

4.44      Committee proceedings held in private are not reported in the Official Report (unless the Parliament has decided otherwise), and are not broadcast (Rule 16.5.2).  However, the outcome of any decisions taken in private are recorded in the minutes of the Committee meeting, which are published on the Committee’s web-pages.

4.45      Assessor hearings are normally conducted in public, but an assessor may occasionally agree to take certain evidence in private for the same sorts of reasons that a Committee might have for meeting in private (e.g. if the evidence is commercially sensitive).

Committee papers

4.46      In advance of each committee meeting, an agenda is circulated to members and published in the Business Bulletin and on the committee’s web-page.[4]  For some items, committee papers may also be circulated (e.g. notes by the clerk or written evidence received).  Where an agenda item is to be taken in private, the papers (e.g. a draft report) may also be private.  Public papers are published with the agenda on the committee’s web-page.  After each meeting, minutes are published on the same web-page, alongside the Official Report. 

Attendance by non-Committee members

4.47      Any MSP who is not a member of a committee may attend any public meeting it holds (Rule 12.2.2).  However, this is more restricted in the context of Hybrid Bill Committees, where non-Committee members are not entitled to participate in the committee proceedings at Stage 1 (Rule 9C.10.8) or in the proceedings on objections at Stage 2 (Rule 9C.11.12).  In this context, “participation in the proceedings” includes questioning of witnesses and discussion of the Bill.  All MSPs are entitled to participate in the committee proceedings on amendments at Stage 2.

Conduct during meetings

4.48      As in other committees, the convener chairs meetings of the Hybrid Bill Committee, and other members speak only at the invitation of the convener.  Members speak from their seats and should speak through the convener at all times, unless addressing questions directly to witnesses.  Members should not interrupt each other, though they may accept interventions (Rules 7.2.1 and 7.2.4 and 7.8).  Witnesses should address their remarks through the chair, except during direct cross-examination of other witnesses.

4.49      The convener may limit the time available for a particular item on the agenda.  He or she may also determine the order of speakers and limit the time available to any member or other person present to speak. The convener has similar general powers to maintain order in the Committee as the Presiding Officer has in the Chamber.  In particular, he or she may order a member or any other person present to stop speaking if they have exceeded the time allotted to them, or if they are departing from the subject or repeating themselves (Rules 7.2.2 and 7.2.3 and 7.8).

4.50      In committee meetings, members address each other in the same manner as in the Parliament – that is, by name (and title if they wish). The convener and deputy convener may be referred to as such.

4.51      All participants in the proceedings must conduct themselves in a courteous, orderly and respectful manner, and must respect the authority of the convener at all times.  In particular, they must not behave in a manner that would constitute a criminal offence or contempt of court (Rules 7.3.1 and 2 and 7.8).

Matters sub judice

4.52      Under Rule 7.5, members may not make reference to any matter in relation to which legal proceedings are active (for the purposes of section 2 of the Contempt of Court Act 1981), except to the extent permitted by the Presiding Officer.  While this Rule does not “prevent the Parliament from considering legislation”, members should avoid making reference to matters that are sub judice during proceedings on a Hybrid Bill unless they consider it necessary and appropriate to do so.  If in doubt, they should, where possible, raise the matter with the clerks in advance.

Language

4.53      All committees normally conduct their business in English (Rule 7.1). However, if a member wishes to address a Hybrid Bill Committee in Scots Gaelic, or in any other language, he or she may do so with the agreement of the convener.  A promoter, objector, witness, or any other person invited to speak by the Committee may also address it in a language other than English with the permission of the Convener.  Permission should be sought, through the clerks, at least two weeks in advance to allow translation or interpretation facilities to be made available.