6.1 This Part of the Guidance explains the rules and procedures relating to amendments in more detail. It explains the principles behind amendments, how they are lodged and published and the creation of Marshalled Lists. It also explains how amendments are grouped and (at Stage 3) selected, and how the proceedings on amendments are conducted.
6.2 An amendment is a proposal to change the wording of the text of a Bill. It is the only mechanism that may be used to make such a change. An amendment is also the key mechanism for allowing debate on the Bill’s provisions at Stages 2 and 3. (Some amendments – sometimes referred to as “probing amendments” – are lodged primarily to allow an issue to be debated, without any intention of changing the Bill’s text.) All amendments must conform to the rules governing the admissibility, style and content of amendments.
6.3 The Standing Orders relating to amendments are based on two guiding principles: the rule of separate textual amendments and the rule of progress.
Separate textual amendments
6.4 This is the principle that every substantive change to the text of a Bill requires an individual amendment to be lodged, moved and agreed to. As a legislature, the Parliament must agree to the precise form of words that has legal effect, and not just to the underlying policy behind those words. This means that it cannot simply agree, for example, to change every occurrence of word X to word Y, since the legal effect of changing X to Y will depend on the context in which the word occurs and may be different in each case.
6.5 When the Parliament (or a Committee) agrees to an amendment, it is precisely that amendment – and only that amendment – that may be made to the Bill (the only other changes that are permitted being strictly non-substantive “printing points”). The Parliament (or the Committee) cannot decide only on the principle underlying a change to the text of a Bill; it must also decide on the precise manner in which that change is to be made. Note that some major changes to the legal effect of a Bill can be achieved by a single amendment, whereas other, less major changes may require dozens of separate amendments.
The rule of progress
6.6 The second basic principle is that amendments must be taken and disposed of strictly in order. This order is not always the order in which the sections and schedules appear in the printed Bill but, whatever the order is, it must be followed. It is never permitted to return to a point in the order earlier than the last amendment moved at that Stage of the Bill. This obviously makes it important that amendments are marshalled (i.e. sorted into order) accurately and that a degree of formality is applied in the manner in which amendments are called and disposed of, since mistakes often cannot be rectified at the same Stage. The rule of progress also explains the importance of wording amendments consistently – since this will determine their relative places in the Marshalled List and hence their precedence in debate.
Admissibility of amendments
6.7 Rule 9C.14.6 establishes five criteria for the admissibility of amendments. These are explained below by reference to the paragraphs of that Rule.
6.8 It should be noted that legislative competence is not a criterion for the admissibility of amendments. Whether a Bill, or specific provisions within it, are within the Parliament’s legislative competence may be a matter of debate throughout the passage of a Bill.
(a) Proper form
6.9 The Presiding Officer has made a determination on the form of amendments (see Annex O). The clerks will aim to ensure, as a matter of course, that an amendment that is otherwise admissible is put into proper form. Amendments should, therefore, rarely be ruled inadmissible on this ground alone.
6.10 It is implicit in this first criterion that an amendment is inadmissible if an identical amendment has already been lodged. This includes not just amendments which can be worded in only one way (e.g. “Leave out section 1”) but also amendments that differ from an amendment already lodged only in trivial respects that would have no legal effect. A member seeking to submit such an amendment has the choice of either changing the amendment to make it substantively different from the one already lodged, or indicating support for that amendment.
6.11 An amendment is inadmissible if it is not relevant to the Bill. This is sometimes referred to as an amendment being outwith the “scope” of the Bill – though this is not always easy to determine.
6.12 It is sometimes wrongly imagined that the long title alone can be used to determine the scope of the Bill. The long title is intended to provide a concise description of the main purposes of the Bill and so is a useful guide to scope; but it is not definitive. The reason why amendments to the long title are permitted (and are taken last) is to allow it to be adjusted to take account of amendments made elsewhere in the Bill – amendments that had to be within the scope of the Bill to be admissible, but were not consistent with the long title as it stands.
6.13 The normal rule of thumb is that where a Bill has only one or two purposes when it is introduced, any additional purpose is unlikely to be relevant; but if the Bill has three or more purposes when it is introduced, it may be relevant to add a further purpose by amendment, so long as the new purpose is no more remote in terms of subject-matter to the existing purposes than those purposes are to each other. However, it is unlikely to be appropriate to add a whole new purpose to a Hybrid Bill by amendment unless the new purpose is unrelated to the provisions that make the Bill hybrid, as this could call into question the validity of the Parliament’s scrutiny process (which aims to involve directly, from an early stage, all those people whose interests could be adversely affected by the Bill).
6.14 As well as being relevant to the Bill as a whole, each amendment must be relevant to the provision to which it is made. An amendment to a section, for example, is admissible only if it is relevant to the subject matter of the section. Similarly, an amendment to leave out a section and insert a new section in its place is appropriate only where the new section has essentially the same purpose as the old (but uses a different form of words to achieve that purpose). If the new section is doing something quite distinct, two amendments should be lodged, one to leave out the existing section, the other to insert the new one. The Parliament (or Hybrid Bill Committee) should, in that case, have the option of agreeing to one amendment without the other. Similar considerations apply to amendments to leave out smaller provisions such as subsections and insert new such provisions in their place.
6.15 Where an amendment is relevant to the Bill but not to any existing section (or schedule), it should be put in the form of a new section (or schedule). In that case, care must be taken to place it appropriately in the Bill. In particular, if the Bill is divided into Parts and Chapters or under italic headings, a new section must be placed under a Part, Chapter, or italic heading to which it is relevant (which is easier if one of those headings is “General” or “Miscellaneous”). If the new section is not relevant to any existing heading, it may be necessary to prefix it with its own heading.
6.16 Under Rule 9C.14.11, an amendment to insert a new section or schedule should “normally” specify where it is to be inserted. “Normally” here means “wherever possible”. For any new section/schedule amendment that is admissible, it must be possible to find a place in the Bill where it can be relevantly inserted – and it should be lodged as an amendment to that place in the Bill if submitted before the Stage begins. But if proceedings at the Stage in question have already progressed beyond the last place where the new section or schedule could relevantly be inserted, then it may be lodged as an amendment to an unspecified place in the Bill. (Before accepting such an amendment, care should be taken to ensure that it conforms to the fourth criterion below.) Such an amendment would be printed under the heading “At an appropriate place in the Bill”.
(c) Consistency with general principles
6.17 An amendment is not admissible if it is inconsistent with the general principles of the Bill as agreed by the Parliament. This criterion is intended to rule out so-called “wrecking amendments” – 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. Amendments may be used to improve the means by which the Bill gives effect to those general principles, but not to frustrate those principles. The proper course, therefore, for members who oppose the basic thrust of the Bill is to vote against the motion to approve its general principles at Stage 1 – or, if any amendments made at Stage 2 and Stage 3 are insufficient to make it acceptable in their view, to vote against the Bill at the end of Stage 3.
6.18 In determining whether an amendment would be inconsistent with the general principles of the Bill, a similar approach to that described under Relevance above is employed. Where a Bill is introduced with only one or two principal purposes, an amendment to leave out (or substantially alter) that purpose or one of those purposes would not normally be admissible. But where the Bill was introduced with three or more purposes, it may be possible to leave out by amendment any one of them without “wrecking” the Bill. In any particular case, account would be taken of how substantial the purpose is, the extent to which the remaining purposes would be affected by its removal (or substantial alteration) and how close it is in terms of subject-matter to the other purposes of the Bill. It would normally be possible to remove by amendment from a multi-purpose Bill a minor purpose that stands apart from the remainder of the Bill and on which the rest of the Bill does not depend, but not to remove a substantial purpose that is central to the Bill as a whole.
(d) Consistency with decisions already taken on amendments
6.19 An amendment is not admissible if it is inconsistent with a decision already taken on an amendment at the Stage at which it is proposed. This criterion is intended to prevent decisions taken on one amendment being effectively overturned by a decision on a subsequent amendment at the same stage. Rule 9C.14.13 prevents a later amendment already on the Marshalled List (i.e. that was admissible when it was lodged) being called; but this criterion of admissibility prevents such an amendment being published if the amendment with which it is inconsistent has already been agreed to. It also prevents an amendment being published if another amendment that would have essentially the same effect has already been disagreed to. The rationale for this criterion is to prevent a member who has been defeated once on an issue simply coming back again with a similar amendment later during the same Stage.
6.20 The clerks in the Legislation Team will ensure that all amendments are in proper form and also aim, where possible, to ensure that amendments submitted conform to the other criteria above. Where there is doubt about the admissibility of an amendment, the clerks will seek to raise this with the member as soon as possible. In any case of dispute about the admissibility of an amendment, the final decision rests with the convener of the Hybrid Bill Committee at Stage 2 or the Presiding Officer at Stage 3 (under Rule 9C.14.5).
6.21 The clerks may, if need be, hold back amendments of doubtful admissibility from publication while the issue is resolved, to avoid the situation where an amendment is published in the Business Bulletin and is subsequently deemed inadmissible. Where an amendment is so held back for this reason, the member who submitted it will be informed. However, where an amendment of doubtful admissibility is lodged on the last day before the deadline, it may sometimes be necessary to publish it before its admissibility is decided, to ensure that notice is given. This may lead to a delay in publication of the Marshalled List until the amendment’s admissibility is decided.
When amendments may be lodged
6.22 A Hybrid Bill can be amended at Stage 2 and at Stage 3 (Rules 9C.11.10 and 9C.12.3). A Bill that is referred back to the Hybrid Bill Committee for further Stage 2 consideration under Rule 9C.12.11 may be further amended at that Stage and again when it returns to Stage 3 (to the limited extent specified in that Rule). A Bill that is reconsidered after it has been passed may be amended to the extent allowed under Rule 9C.13.4.
6.23 At Stage 2, amendments may be lodged as soon as consideration of objections has been completed or, if there were no objections to consider at that Stage, after the completion of Stage 1 (Rule 9C.11.10). Stage 3 amendments may be lodged as soon as Stage 2 has been completed (Rule 9C.12.3).
6.24 The final day for lodging amendments at Stage 2 (or Reconsideration Stage) is the third sitting day before the day on which consideration of amendments at that Stage begins (Rule 9C.14.2). So where Stage 2 amendments proceedings are to be taken on a Thursday, amendments should be lodged no later than the Monday. The purpose of the notice period is to ensure members have an opportunity to read and think about amendments in advance of the debate, and to allow the clerks adequate time to prepare the Marshalled List and advise on groupings. There is a single lodging deadline even where the amendment proceedings are being taken over more than one day.
6.25 At Stage 3, the final day for lodging amendments is the fourth sitting day before the day the Stage is due to start (Rule 9C.14.3).
6.26 At all amending Stages, amendments may be lodged on any day when the office of the Clerk is open. This excludes weekends and holidays, but includes most days of recess. Amendments may normally be lodged until 4.30 pm. However, at Stage 2 and Reconsideration Stage, the deadline on the final day when amendments for the Stage may be lodged is 12.00 noon (Rule 9C.14.2).
6.27 Amendments lodged after the deadline may be accepted as “manuscript amendments” under Rule 9C.14.7, but only at the discretion of the convener of the Hybrid Bill Committee (at Stage 2) or Presiding Officer (at Stage 3 or Reconsideration Stage). Procedures for dealing with such amendments are set out below.
6.28 At all Stages, members are advised to lodge amendments as early as possible before the deadline. Members are also encouraged to contact the clerks as early as possible to discuss amendments they propose to lodge.
6.29 Amendment lodging deadlines for all Bills in progress, where these deadlines are known, are published in the Business Bulletin.
Where amendments are lodged
6.30 Amendments to a Hybrid Bill should be lodged with the clerks in the Legislation Team (rather than with the clerks to the Hybrid Bill Committee). The Legislation Team is based in Room T1.01 and can be contacted on (0131 34) 85277 or at Legislation_Team@parliament.scot.
Which parts of the Bill may be amended
6.31 Any part of the “legislative text” of the Bill (i.e. the words that have legal effect) may be amended. This includes every section and schedule of the Bill and the long title (although the long title is normally amended only in consequence of amendments made elsewhere in the Bill). The short title may be amended where it is cited in the Bill itself (usually in the final section).
6.32 The parts of the Bill that may not normally be amended are Part and Chapter titles, italic cross headings, section or schedule titles, or any of the numbers assigned to any of the component parts of the Bill. The principle behind this distinction between legislative text and other elements of a Bill is that the Parliament must decide what the legislative effect of the Bill is to be, and these other elements can then be adjusted administratively to reflect what the Parliament has decided. (These administrative changes are known as “printing points”.)
6.33 Similar considerations apply with punctuation and numbering. For example, an amendment to break up a subsection into two paragraphs, (a) and (b), might only insert the number (b), leaving the (a) to be inserted later as a printing point. A separate amendment to do nothing more than insert the number (a) would normally not be permitted, but may be accepted if it was necessary to make the effect of the principal amendment clear.
6.34 Amendments to amendments are permitted (Rule 9C.14.8), and are subject to the same rules as other amendments, save for minor differences of style.
Who may lodge amendments
6.35 Any MSP may lodge amendments to a Hybrid Bill at Stage 2 or Stage 3, and there is no limit to the number of amendments that each MSP may lodge.
6.36 As with other items of business, amendments (under Rule 17.4) may be lodged either in writing by the member, or on his or her behalf by a third party whom the member has authorised in writing, or by e-mail if the member has authorised the acceptance of business from his or her e-mail account. Amendments cannot be lodged by fax, nor can they be lodged by e-mail from the e-mail address of anyone other than the member.
6.37 Each amendment must be in the name of just one member, but may also have up to four supporters – or five if one is the member in charge of the Bill (Rule 9C.14.4). Supporters’ names need not be attached to the amendment when it is lodged – they may be added at any time during the period when amendments for the Stage may be lodged (Rule 9C.14.4). Where supporters’ names are added to an amendment that has already been published in the Business Bulletin, the amendment is not re-published just because new names have been added. The additional names will, however, appear when the Marshalled List is published.
6.38 Part of the rationale for allowing members to support amendments is that a member cannot lodge a particular amendment if another member has already done so – but the second members’ name may be added in support of the amendment. An amendment may be withdrawn by the member who lodged it, but only with the consent of all supporters and only during the period when amendments for that Stage may be lodged (Rule 9C.14.9). So by adding his or her name to an amendment, a member can prevent the amendment being withdrawn in advance and so be assured of the opportunity (under Rule 9C.14.16) to move it if the member who lodged it does not.
6.39 Where the member who lodged an amendment seeks to alter it (or lodge a new version in substitution), the consent of any supporters to the original amendment is only required if the alteration is substantial (or the new version substantially different). If any such supporters’ consent has not been obtained, their names must be left attached to that version of the amendment (which cannot therefore be withdrawn in advance of the Stage).
6.40 Supporters’ names cannot be added to a manuscript amendment, nor can such an amendment, once lodged, be withdrawn in advance of the Stage (Rules 9C.14.4 and 9). As with any other amendment, it is of course open to the member who lodged a manuscript amendment not to move it when it is called.
6.41 It is quite normal for many of the amendments to a Hybrid Bill to be lodged by the Minister in charge of the Bill. Other members may add their names as supporters just as with non-Government amendments.
Correcting amendments after lodging
6.42 All members – and others – with an interest in a Bill are advised to check the Business Bulletin every day during the period when amendments may be lodged, to ensure they have seen and considered all amendments lodged to the Bill. It is particularly important that members who lodge amendments check them carefully in the next day's Bulletin. The clerks may make minor changes of wording and structure to ensure that amendments are, so far as possible, consistent with the structure and drafting style used in the Bill. The clerks make every effort to clear changes of substance with members before publication, but this is not always possible and occasionally the purpose of an amendment may be misunderstood. It is the responsibility of members to ensure that amendments published in their name achieve the intended purpose.
6.43 Members who wish to correct amendments that have been published should contact the Legislation Team as early as possible. If the corrections are substantive (i.e. non-trivial) but do not change the overall purpose of the amendment, the corrected amendment will appear on the Marshalled List marked with an asterisk (*). This alerts other members to the fact that the amendment is not the same as the version previously published with that amendment number. (New amendments – i.e. those not previously published – are also asterisked on the Marshalled List.) Where a more fundamental correction is sought, a new amendment must be lodged and is published in the Bulletin as “in substitution for” the earlier amendment. This procedure ensures that maximum notice is given of the new amendment, while simultaneously alerting other members to the fact that the earlier amendment has been superseded.
6.44 Major corrections (i.e. those that would require an “in substitution” amendment) can only be made up to the deadline for lodging amendments at that Stage. Minor corrections may be made at any time until the Marshalled List is finalised. However, members should notify the clerks of all corrections as early as possible, since in practice the deadline for finalisation of the Marshalled List may not be much later (particularly at Stage 2) than the deadline for lodging amendments. The published Marshalled List is treated as a definitive document. The only amendments that may be moved and agreed to (aside from any manuscript amendments that may be lodged) are those published in the List.
Rules on marshalling amendments
6.45 The preparation of both daily lists of amendments and Marshalled Lists is based on rules determined by the Clerk of the Parliament (under Rule 9C.14.10). They are subject to the “order of consideration” – the order in which the sections and schedules of the Bill are to be considered. At Stage 2, the order of consideration is the order set out in Rule 9C.11.9 or such other order as is decided by the Hybrid Bill Committee under that Rule. At Stage 3, it is the order in which the sections and schedules appear in the Bill or such other order as the Parliament has decided under Rule 9C.12.6. The long title is always considered last.
6.46 The rules on marshalling amendments are as follows—
An amendment to insert a new section or schedule before or after an existing section or schedule is taken before or after (as the case may be) amendments to the existing section or schedule.
An amendment to leave out a section or schedule and insert a new section or schedule in its place is taken after all amendments to the section or schedule, but before any amendment to leave out the section or schedule. An amendment to leave out a section or schedule is, in turn, taken before any amendments to divide or move the section or schedule.
Within each section or schedule, amendments are considered in the order determined by the first point in the section or schedule to which they relate, subject to the following rules:
· Amendments to leave out a block of text within a section or schedule (such as a subsection or paragraph) are taken before any amendments to that block of text.
· Amendments to leave out words are taken before any amendments to leave out words beginning at the same place in the Bill and insert other words in their place.
· Amendments to insert new words at the end of the last line of a block of text are taken before amendments to insert new blocks of text at the end of that line; and amendments to insert new blocks of text at the same place in the Bill are taken in the order in which those blocks of text would appear in the Bill if all such amendments were agreed to.
Where the order of amendments to the same place in the Bill is not determined by the above rules, they are normally taken in the order in which they are lodged, but with precedence given to those lodged by the member in charge of the Bill.
6.47 For example, amendments would be marshalled as follows:
In section 12, page 10, line 8, leave out subsection (1)
In section 12, page 10, line 8, leave out subsection (1) and insert—
<(1) Text of new subsection.>
In section 12, page 10, line 8, leave out <word>
In section 12, page 10, line 8, leave out <word> and insert <words>
In section 12, page 10, line 8, after <word> insert <words>
In section 12, page 10, line 8, at end insert <words>
In section 12, page 10, line 8, at end insert—
<( ) text of new paragraph;>
In section 12, page 10, line 8, at end insert—
<( ) Text of new subsection.>
Leave out section 12 and insert—
<Title of new section
Text of new section.>
Leave out section 12
Divide section 12 into two sections, the first (Title of first new section) to consist of subsections (1) and (2) and the second (Title of second new section) to consist of subsections (3) to (5)
Move section 12 to after section 14
After section 12.
After section 12, insert—
<Title of new section
Text of new section.>
Daily lists of amendments
6.48 Where possible, all amendments lodged before the deadline on a particular day are published in the following day’s Business Bulletin under the short title of the relevant Bill. The amendments in each such “daily list” will normally appear in marshalled order, numbered consecutively from top to bottom of the list. Amendment numbers on a second daily list begin where the numbers on the first such list left off. The exception to this numbering is for amendments to amendments, which are numbered by reference to the amendment to which they relate, so amendments to amendment 3 are 3A, 3B etc.
6.49 Normally, by the time a Marshalled List is published, all the amendments to be included will already have been published in a daily list. The Marshalled List is therefore simply an amalgamation of the various daily lists (minus any amendments that have been withdrawn), together with any manuscript amendments (if the convener or Presiding Officer has agreed they may be moved). At Stage 2, the Marshalled List excludes any amendments that (in the opinion of the Private Bill Committee) adversely affect private interests, but which do not have the merit described in Rule 9C.11.10C, and so (under Rule 9C.11.10D) may not be moved. At Stage 3, the Marshalled List excludes those amendments not selected by the Presiding Officer (Rule 9C.14.10).
6.50 Because each daily list may contain amendments scattered throughout the Bill, and because amendment numbers do not change once assigned, Marshalled Lists are not numbered consecutively but in an apparently random order. Although this may at first appear odd, it has significant advantages. The fact that each amendment is numbered as soon as it first appears in print makes it easier for members and others with an interest to follow the progress of the amendment – which is only possible because amendment numbers do not change once assigned.
6.51 Marshalled Lists are numbered by reference to the relevant print of the Bill. So the first Marshalled List at Stage 2 of SP Bill 3 will be SP Bill 3–ML1, the second ML2, and so on. If the Bill is amended at Stage 2 and reprinted as SP Bill 3A, the Stage 3 Marshalled List will be SP Bill 3A–ML; if the Bill is not amended, the Stage 3 Marshalled List will be numbered in the same sequence as those at Stage 2.
Grouping of amendments
6.52 The purpose of grouping amendments is to minimise repetition by debating together amendments on particular topics and to allow the committee (or the Parliament) the maximum choice. Some groups may consist of a single amendment. There are four principal grounds on which amendments are grouped together—
Amendments that stand or fall together, or are to a lesser extent dependent on each other, are grouped.
· For example, there might be a series of amendments throughout a Bill to change a particular date or title, where there would be no point in agreeing to any one such amendment without also agreeing to all the others, and where a single debate on the issue is all that is required.
· Another clear case would be an amendment to insert a new schedule and the amendment to insert a provision introducing the schedule, where the Bill would be defective if it included one and not the other.
· A less clear case might involve an amendment to insert a new section, and a number of other amendments to insert cross-references to that new section in various existing provisions of the Bill. It might be that the new section would be ineffective without at least some of the other amendments, but members who support the new section might differ on which of the existing provisions of the Bill should be made subject to its procedures, and hence which of the associated amendments should be agreed to.
Amendments that represent alternative ways of addressing the same issue, or are otherwise closely related in terms of the issue they raise, are grouped.
· Here the clear case involves directly competing alternatives, where it would not make sense to agree to all of the amendments and where the issues raised are identical: for example, where the Bill makes provision for a specified period of notice (e.g. one month) and there are amendments to substitute different periods (e.g. two months, three months, six months).
· A less clear case would be where there are various amendments to a particular provision that are related only by the fact that their subject matter is determined by the provision. Some might make major changes to the provision, others only small changes. Some might be mostly technical in nature (e.g. to improve the drafting), whereas others might involve major changes of policy. In this situation, there are likely to be various acceptable ways in which the amendments could be grouped.
Amendments to amendments are always grouped with the amendments to which they relate.
Similarly, amendments that would be pre-empted by other amendments (see paragraph 6.60) are never grouped in such a way that they could be pre-empted without ever having been debated. In practice this usually means that amendments are grouped with the amendments that would pre-empt them.
6.53 The groupings are decided by the convener of the Hybrid Bill Committee or Presiding Officer (Rule 9C.14.14). The clerks, in preparing a draft, may seek the views of members and the Scottish Government, but the convener’s or Presiding Officer’s decision is final. Groupings lists are prepared no later than the day before the relevant meeting of the Hybrid Bill Committee or the Parliament and are available in advance from SPICe and on the website. Like Marshalled Lists, groupings are numbered by reference to the Bill number (e.g. SP Bill 3-G1 for the first).
6.54 The Groupings document also includes the text of the amendments arranged in group order. This is for guidance only, and the Marshalled List should still be treated as the definitive document on which the proceedings are based.
Selection of amendments
6.55 There is no selection of amendments at Stage 2 (or Reconsideration Stage) and all admissible amendments may be debated. But at Stage 3 the Presiding Officer has the power to select which amendments of those that have been lodged (and are admissible) are to be taken (under Rule 9C.12.4). The decision of the Presiding Officer is final.
6.56 The purpose of selection is to ensure that proceedings on the Bill can be completed in a reasonable time and to avoid repeating unnecessarily discussion of issues fully debated at Stage 2. In making the selection, the Presiding Officer aims to apply the following criteria (striking a balance between them, if need be)—
An amendment that would adversely affect private interests will not normally be selected unless—
· the holders of those interests have been notified and given a reasonable opportunity to make representations to the Parliament about the proposed amendment, or
· the Parliament has agreed to defer proceedings on amendments in order to allow the holders of those interests to be notified and given such a reasonable opportunity.
Trivial amendments or amendments that are technically defective (e.g. “probing” amendments which, if agreed to, would leave the Bill in need of further amendment) should not be selected, to allow the debate to concentrate on the more important issues and on amendments that could improve the resulting legislation. Selection should not, however, reduce the range of important issues considered.
Amendments that raise issues fully considered at Stage 2, particularly where it is obvious from the Stage 2 proceedings that there is little real merit in the amendment or little support for it, should not be selected.
An amendment that was fully discussed at Stage 2 may, however, be selected if:
· its wording has been revised to take account of criticisms made at Stage 2, where those criticisms were (or may have been) decisive in its not being agreed to at that Stage
· the Minister gave an undertaking to reconsider the issue, particularly if no Government amendment has been lodged
· the response by the Minister to the earlier debate left genuine doubt as to the attitude of the Scottish Government to the issue, or
· there has been (or appears to have been) a change of Scottish Government policy on the issue, or a relevant material development, such that, had it applied when the Stage 2 debate took place, a different result might have obtained.
The selected list should continue to reflect the major concerns of all political parties and of individual MSPs who have lodged amendments.
Selection may also be used to reduce the number of alternative or overlapping amendments. But there need be no selection among a number of valid alternative amendments (which would in any case be grouped and debated together).
All Government amendments are normally selected.
Committee amendments (i.e. amendments lodged by the convener of a committee on behalf of that committee) are normally selected.
Proceedings on amendments – all Stages
6.57 The way in which proceedings on amendments are conducted is similar at all Stages, in the Hybrid Bill Committee and in the Parliament. In the description that follows, references to the convener (of that Committee) should be read as references to the Presiding Officer, and references to the committee as references to the Parliament, in the context of proceedings at Stage 3 or Reconsideration Stage. Guidance that applies only at Stage 2 is set out at the end.
6.58 The convener calls amendments in turn from the Marshalled List. Each amendment is called – and, if moved, disposed of – individually in its place in the list.
6.59 The only situation in which an amendment on the Marshalled List may not be called is where it would be inconsistent with a decision already taken on an amendment at the same Stage (Rule 9C.14.13). Instances of this are described as “pre-emptions”. This will arise in a case where one amendment would, if agreed to, remove the text on which the later amendment relies. An amendment to leave out subsection (1), for example, would pre-empt any amendment to the text of that subsection. Pre-emptions may also arise with amendments aiming at the same result but at different points in the Bill, where agreeing to the later amendment would be inconsistent with disagreement to the earlier. This would not, however, be treated as a pre-emption in any case where the later amendment may be regarded as the better means of achieving the shared intention.
6.60 In any instance of pre-emption, the convener will, before calling the earlier amendment, draw the committee’s attention to the implications for the later amendment of agreeing to the earlier amendment. The published groupings also provide notification of any pre-emptions, as well as of direct alternatives (see below).
6.61 Rule 9C.14.13 does not preclude all of a number of alternative amendments to the same place in the Bill being taken. Amendments to a provision setting a time limit (of, say, one month) might variously propose changing that limit to two, three and six months. Agreement to the first of those amendments would not prevent the others also being taken, so the later amendments are not regarded as pre-empted. Agreement to the first may be taken to involve only a decision that two months is better than one, which does not preclude a decision that three or six months is better still. Amendments of this sort (i.e. two or more amendments replacing the same text with different text) are referred to as “direct alternatives”.
Moving and debating amendments
6.62 In any debate on a group of amendments, certain members have a right to speak. A member in whose name any of the amendments in the group appears has a right to speak. The Minister in charge of the Bill (and any other Minister present) has a right to speak. Other members who wish to speak may be called at the discretion of the convener (Rule 9C.14.15).
6.63 Debate on a group of amendments proceeds as follows:
· The convener calls the member who lodged the “lead” amendment in the group (i.e. the one in the group that appears first on the Marshalled List) to speak to and move that amendment, and speak to all other amendments in the group. The suggested form of words for moving an amendment, which is usually at the end of the speech in support of it, is “Accordingly, I move amendment X”.
· The convener then calls all other members who have amendments in the group to speak in the debate. (This may include the Minister in charge, if he or she did not move the lead amendment.) They are called in the order in which the first of their amendments in the group appears in the Marshalled List. Each such member speaks in support of (but does not move) his or her own amendments in the group, and may also comment on the lead and other amendments.
· The convener then has discretion to call other members (i.e. members who does not have amendments in the group) who may wish to speak in the debate.
· If the Minister in charge has not already spoken, he or she is called at this point to set out the Scottish Government’s position on the amendments in the group.
· At the end of the debate, the convener gives the member who moved the lead amendment an opportunity to reply to points made by other speakers, and to indicate whether he or she wishes to press for a decision on the lead amendment. (Where the lead amendment is in the name of the Minister, it is normally assumed that it will be pressed.)
Not moving an amendment when it is called
6.64 If the member in whose name an amendment appears does not wish to move it, the member should simply say “Not moved” when the amendment is called. In that event, any other member entitled to participate in the proceedings may move the amendment (Rule 9C.14.16). If an amendment is not moved, the convener immediately calls the next amendment on the Marshalled List.
Withdrawing amendments that have been moved
6.65 At any time after an amendment is moved, but before the question is put, the member who moved it may seek to withdraw it (Rule 9C.14.17). In that event, the convener must ask whether any member present objects to the amendment being withdrawn. If any member objects, the amendment cannot be withdrawn and the question on it must be put. If no member objects, the amendment is withdrawn, and the next amendment is immediately called.
Putting the question and voting on amendments
6.66 After the debate on an amendment or a group of amendments is concluded, the Convener “puts the question”, normally by saying “The question is that amendment X be agreed to. Are we all agreed?” Members of the Committee who agree say “Yes”, those who disagree say “No”. If no member disagrees, the amendment is agreed to. If any member of the Committee disagrees to the question on an amendment, the Convener calls a division.
6.67 At Stage 2, divisions normally take place by a show of hands (Rule 11.8.3). The Convener says “Those in favour?”, “Those against?”, “Those abstaining?”, ensuring that hands are raised for long enough in each case to allow the clerks to note the names of those voting. (If a Committee member requests a roll-call vote, and the Convener agrees, the Committee votes by the Convener calling members’ names in alphabetical order, each responding “Yes”, “No” or “Abstain”.) At Stage 3, the electronic voting system is normally used. The normal practice is to have a five minute suspension following the first instance of a pressed amendment being objected to (thus precipitating a division), followed by a 30-second division. After the first division, a one-minute voting period is allowed for the first division after a debate on a group. All other divisions are for 30 seconds.
6.68 If the result of the division is a tie, the Convener must exercise a casting vote.
Amendments in groups
6.69 As explained above, amendments are grouped in order to avoid repetition and to allow a single debate on the issue raised by a number of amendments. But grouping does not affect the requirement that each amendment is called, moved and disposed of in its place in the Marshalled List. The result is that a lengthy debate on a group of consecutive amendments may be followed by the disposal of those amendments in quick succession.
6.70 Where amendments are debated in a group because they are so closely related that they must stand or fall together then, if the first is agreed to, it can be expected that the others will also be agreed to when they are called. But each must be called and moved before it can be so agreed to.
6.71 Where an amendment is called having already been debated earlier, it cannot be debated again (Rule 9C.14.14). If the member wishes to move it he or she need only say “Moved” or “Moved formally” – but the Convener may allow him or her to make a brief remark before the question is put. Where a number of such amendments in the name of the same member (and, at Stage 2, to the same section or schedule) are consecutive in the Marshalled List, they may be moved en bloc. If no member of the Committee objects, a single question on those amendments may also be put, but if any member does object, the amendments must be disposed of individually to the extent desired. If it is clear that the member who lodged a sequence of previously-debated amendments does not wish to move them, they need not be called individually. However, if any other member present indicates a wish to move such an amendment not moved by the member who lodged it, they may exercise their right to do so.
Amendments to amendments
6.72 Where there are amendments to an amendment, these will usually be grouped together. The procedure is similar to that described above, except that the amendments to the original amendment must be disposed of before that amendment is disposed of (Rule 9C.14.12). Taking as an example a Government amendment (35, say) to which two non-Government amendments (35A and 35B) have been lodged, the procedure would be as follows:
· The Convener invites the Minister to speak in support of and move amendment 35.
· Immediately the Convener invites Member A to speak in support of and move amendment 35A.
· The debate then takes place on amendment 35A. The Convener calls other speakers, including Member B (who lodged amendment 35B). The final speakers are the Minister (to wind up on amendment 35) and Member A (to wind up on amendment 35A and the debate in general). At this point, Member A has the opportunity either to press amendment 35A to a decision or seek to withdraw it.
· If the amendment is pressed, the Convener puts the question “That amendment 35A be agreed to”.
· The Convener then calls Member B to move (or not move) amendment 35B.
· If the amendment is moved, the Convener puts the question “That amendment 35B be agreed to”.
· Finally, the Minister has the opportunity either to press amendment 35 to a decision (or seek to withdraw it). If it is pressed, the Convener puts the question “That amendment 35 (or amendment 35 as amended) be agreed to”.
6.73 Amendments lodged after the normal deadline established by Rule 9C.14.2 or 3 are referred to as “manuscript amendments”. All late amendments fall into this category, whether they are lodged only minutes after the deadline or immediately before the point in proceedings on the Bill when they would have to be moved. Like any other amendment, a manuscript amendment must be lodged in writing with the clerk, and is subject to the criteria of admissibility set out in Rule 9C.14.6. A manuscript amendment at Stage 3 is also subject to selection by the Presiding Officer under Rule 9C.12.4.
6.74 A manuscript amendment may be moved only with the Convener’s agreement. The Convener gives that agreement only if he or she “considers it is justified, in the circumstances, taking account of the disadvantages of lack of proper notice” (Rule 9C.14.7). In applying that test, the Convener should keep in mind that, although there may be a justification for manuscript amendments in particular circumstances, their frequent use erodes the effectiveness of the normal deadline, the purpose of which is to ensure that adequate notice is given of all amendments, both to members and to outside parties with an interest in the Bill.
6.75 The disadvantages of reduced notice depend on the scope and complexity of the amendment, and are generally greater the less notice that is given – particularly at Stage 3 (or Reconsideration Stage), normally the final opportunity to amend the Bill. There is a particular disadvantage in taking a last-minute manuscript amendment at a meeting of the Parliament, given the greater disruption that a suspension causes to Chamber proceedings. A last-minute Stage 3 (or Reconsideration Stage) manuscript amendment may still be justified, however, if it would, for example, correct a defect in the Bill (such as a missed consequential) that had only just come to light. Agreement should not normally be given to move a manuscript amendment that could equally well have been lodged before the deadline. But where a non-manuscript amendment was lodged immediately before the normal deadline, and so is only available in print after that deadline has passed, agreement should normally be given to move any manuscript amendments that are lodged directly in response to that amendment, and on the first available day thereafter.
6.76 If a manuscript amendment is lodged in time for it to be included in the Marshalled List, then (assuming the Convener agrees to it being moved) it will be published with an asterisk beside its number to indicate that it is a manuscript amendment. If it is lodged after the Marshalled List has been finalised, the amendment will normally be made available separately before it is moved. If the amendment is lodged during the proceedings, it may be necessary for the meeting to be suspended to allow copies of the amendment to be made available. A manuscript amendment to leave out a section or schedule, however, may be moved without copies being available.
Proceedings at Stage 2
Agreement to sections and schedules
6.77 Rule 9C.11.8 requires every section and schedule to be agreed to at Stage 2. The question that is put is “that section/schedule X be agreed to” (and no motion is required for this). 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.
6.78 The question on a section or schedule is only put if there is no amendment to leave out the section or schedule. In other words, any substantive decision on whether the section or schedule should remain in the Bill is taken on an amendment. If an amendment to leave out the section or schedule is disagreed to, the question that the section or schedule be agreed to is not put (under the final sentence of Rule 9C.11.11). And if such an amendment is agreed to, it is no longer possible to agree to the section or schedule, since it no longer exists.
6.79 If no amendment to leave out the section or schedule has been lodged in advance, any member who does not wish to agree to the section or schedule must do so by moving a manuscript amendment to leave it out. So long as such an amendment is admissible, the Convener should always consent to it being taken. In the case of a section containing provisions central to one of the principal purposes of the Bill, a manuscript amendment to leave it out may be inadmissible under Rule 9C.14.6(c) – which precludes “wrecking” amendments.
6.80 Because the only mechanism available to leave a section or schedule out of a Bill is by means of an amendment, putting the question on each section and 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.
6.81 Where there is a section or schedule to which no amendments have been lodged, the Convener puts the question on that section or schedule at the appropriate point (i.e. immediately after the last amendment to the previous section or schedule has been disposed of) (Rule 9C.11.11). Where there are two or more consecutive sections or schedules to which no amendments have been lodged, a single question that they be agreed to may be put (Rule 9C.11.8). (But a manuscript amendment to leave out more than one section or schedule is not permitted – separate such amendments would be required.)
6.82 Although all amendments to a section or schedule are taken before the question is put on the section or schedule, amendments to divide or move the section or schedule are taken after the section or schedule has been agreed to. This is in order to allow the substance of the section or schedule to be finalised before deciding any issue of where in the Bill the section or schedule should go.
Consideration of the long title
6.83 At the end of Stage 2, any amendments to the long title are disposed of and the question is then put “that the long title be agreed to”.
Proceedings at Stage 3
6.84 At Stage 3, it is usual for the Parliamentary Bureau to propose a motion (under Rule 9C.12.5) setting out time limits by which the debate on one or more groups must be concluded. Such a motion is moved before Stage 3 begins. The purpose of the timetabling motion is to seek to ensure a reasonable distribution of debating time, by anticipating which groups are likely to be most and least debated.
Presiding Officer’s discretion to depart from the timetabling motion
6.85 In managing debate on amendments, the Presiding Officer will always seek to adhere to the time limits set out in the timetabling motion. However, the Presiding Officer has a power to depart from any time limits in the motion, to such extent as is considered necessary (Rule 9C.12.5). This can be for any one of three reasons:
· to enable those members given a right to speak on a group by Rule 9C.14.15 to do so – i.e. the member moving the amendment leading the group; any other member intending to move an amendment in the same group; the member in charge of the Bill and (if different) any Minister present at the proceedings
· to prevent any debate on a group of amendments that has already begun from being unreasonably curtailed, or
· as a consequence of the non-moving of an amendment leading to a change in the order in which groups are debated.
6.86 The first two reasons above are intended to address circumstances where there is a danger of the timetabling motion forcing the debate to come to a premature end (or not even to take place at all). The first reason is intended to ensure that those having a right to speak to the amendments are able to do so, and that the “bare bones” of a debate on a group is therefore always possible. The second reason, unlike the first, can only be relied upon if the debate had already begun before the deadline was reached. It is likely to apply in respect of a particularly important group, where only a truncated debate has been possible within the deadlines set in the timetabling motion. The Presiding Officer may consider that it is important to allow the debate to continue, whether to enable the member leading the debate (and who has therefore already exercised his or her right to speak) to sum up or to allow the debate to be opened up to members other than those who have a right to speak.
6.87 The third reason above addresses the specific, uncommon circumstance of the member called to speak to the lead amendment in a group not moving it, and no other member present doing so either. This has the potential (depending on which amendments immediately follow in the Marshalled List) to muddle the deadlines set out in the timetabling motion so that they apply to the “wrong” groups of amendments. The third reason allows the Presiding Officer to depart from the time limits to correct this.
6.88 If the Presiding Officer invokes the power to depart from any time limit under Rule 9C.12.5, this has no effect on subsequent time limits in the timetabling motion. They must continue to be adhered to, unless the Presiding Officer uses his or her discretion under the rule again. So spending additional time on early groups needs to be compensated for by using less time later in the proceedings. In theory, however, the Presiding Officer can use the discretion as often as is considered necessary to depart from subsequent time limits.
Extending time limits in a timetabling motion
6.89 Rule 9C.12.5 allows departure from deadlines set out in the timetabling motion under certain circumstances. However, using that Rule does not in itself lead to more parliamentary time being spent on Stage 3 overall. Its purpose is to allow the reallocation of the total time allotted at Stage 3 so as to give the Presiding Officer greater flexibility to manage the debate than the timetable would otherwise allow. So, any extra time used for debate on any grouping must be compensated for either in debates on subsequent groupings or in the debate on whether to pass the Bill, or in both.
6.90 However, where it is considered that more debating time on amendments is needed overall at Stage 3, Rule 9C.12.7 may be invoked. This Rule applies at any time during Stage 3 proceedings subject to a timetabling motion (i.e. during the debate on amendments, but not during the debate on whether to pass the Bill). It permits any member present to seek to move a motion without notice proposing that the next time limit to arise be extended by such amount of time (which cannot exceed 30 minutes) as the member specifies. Such a motion, which cannot be debated or amended, may only be taken with the agreement of the Presiding Officer. Any number of such motions may be sought and moved, but the total amount of time by which a Stage 3 may be extended may not exceed 30 minutes. Additionally, where a motion to extend a particular time limit has been disagreed to, no further motion to extend that time limit may be moved.
6.91 While it is open to any member to seek to invoke Rule 9C.12.7 at any time during timetabled stage 3 proceedings, the Presiding Officer may be minded to refuse a motion moved early in those proceedings, on the ground that it might yet be possible to overcome apparent timetabling problems by use of Rule 9C.12.5. If the Presiding Officer refuses a motion this would not stop a member from seeking to move another one later.
Effect of agreeing to a motion to extend the time limits in a timetabling motion
6.92 The effect of a motion under Rule 9C.12.7 being agreed to is that the next deadline is moved forward by whatever amount of time the motion specified, as are any subsequent deadlines in the timetabling motion. Any previous statement from the Presiding Officer under Rule 9C.12.5 that a particular deadline is being departed from for a particular amount of time is superseded by the agreement to the motion.
Effect of agreeing to a motion to extend the time limits in a timetabling motion
6.93 Agreement to a motion under Rule 9C.12.7 has no automatic effect on any subsequent deadlines in the daily business list. This means (assuming that the debate on the motion to pass the Bill immediately follows the debate on amendments), that any time gained in debating amendments is lost in the debate on passing the Bill. Rule 9C.12.8, however, empowers the Presiding Officer to make such alterations to the daily business list, including altering the time of Decision Time, as are considered necessary or appropriate as a consequence of a motion under Rule 9C.12.7 being agreed to. In practice, the Presiding Officer is likely to move all remaining deadlines in the daily business list forward by the same amount of time as was specified in the successful motion under Rule 9C.12.7.
6.94 The wording of Rule 9C.12.8 allows the Presiding Officer effectively to lengthen the debate on whether to pass the Bill. But the Presiding Officer is only likely to use this discretion sparingly, where it is clear not only that there was insufficient time to debate the amendments, but that the time proposed for the debate on the whole Bill is clearly inadequate too. The Presiding Officer may decide not to use this power if, for instance, moving the deadlines back would cause significant disruption to members.
6.95 The Presiding Officer is required to notify the Parliament of any changes to the daily business list made by way of Rule 9C.12.8. A clear spoken announcement would constitute sufficient notification under the rule. Before advising the Presiding Officer about use of this Rule, the clerks would normally consult parties’ representatives on the Parliamentary Bureau.
 The existence of a procedure (outlined in paragraphs 5.57 to 5.64) for notifying, and allowing objections from, people adversely affected by amendments, does not detract from the generality of this point.