Where a Hybrid Bill contains particular provisions affecting payments into or out of the Scottish Consolidated Fund (the “SCF”), no proceedings can be taken on the Bill after Stage 1 unless the Parliament has, by resolution, agreed to the relevant provisions. That resolution is known as a “financial resolution”. Financial resolutions are governed by Rule 9C.16.
Principles behind the Rule
The financial resolution procedure is a means of giving extra control to the Scottish Government over Bills with certain financial implications. Only a member of the Scottish Government or a junior Scottish Minister can lodge a motion for a financial resolution (Rule 9C.16.7), and so the Scottish Government has a veto on whether any Bill that requires such a resolution makes progress. Unless a motion is lodged and the Parliament agrees to it, a Bill that requires a financial resolution falls (Rule 9C.16.8).
Rule 9C.16 is intended to give effect to the principles of the Financial Issues Advisory Group (FIAG) which reported to the Consultative Steering Group (CSG) before the establishment of the Parliament. FIAG was attempting to give effect to the established principle that the executive arm of government has a unique responsibility in relation to the management of public funds. If it is to fulfil this function, the Scottish Government must maintain control both over the raising of revenue and over public spending – hence the need for a mechanism to secure Scottish Government consent for payments either into or out of central funds.
When a resolution is required
The Presiding Officer decides in relation to every Hybrid Bill whether or not a financial resolution is required (Rule 9C.16.2). This decision is usually made shortly after introduction. It is communicated to the Minister in charge of the Bill, other relevant Ministers and the convener of the Hybrid Bill Committee, and announced on the Bill’s webpage.
The decision is made with reference to the provisions contained in the Bill, the accompanying documents and any other relevant information. The need for a resolution does not just arise in relation to mandatory provisions (e.g. those using “must”) in a Bill, but also in relation to optional provisions (e.g. those using “may”). Budgetary authorisation may be required to ensure that a mechanism provided in the Bill can be used, as well as for what the Bill requires to be done. The question is whether, if the mechanism were resorted to, there would be a legitimate claim against the SCF.
Rule 9C.16.3(a): resolutions required due to new charges on the SCF
A resolution is required in every case where a Hybrid Bill “charges expenditure on” the SCF (Rule 9C.16.3(a)). Such charges – which the Scottish Government is required to pay without obtaining further authority from the Parliament by means of a Budget Bill – are provided for only in exceptional cases.
Rule 9C.16.3(b): resolutions required due to other expenditure from the SCF
A resolution is required in relation to other expenditure charged on or payable out of the Fund if two tests are satisfied (Rule 9C.16.3(b)). The first test is what the “likely effect” of the Bill would be. Expenditure is a “likely effect” of a Bill where new or increased expenditure is the likely outcome of the Bill’s implementation, taking into account the wider context in which the Bill operates, not just where the Bill requires expenditure to be incurred.
In addition, expenditure that is likely to arise in the event of a power conferred by the Bill being exercised will be taken into account, even if the power is not certain to be exercised. It is the mechanisms that the Bill provides, not the way in which those mechanisms are expected to be used in practice, that is important. Where there is substantial uncertainty about the level of expenditure that might be involved in a Bill, but there is potential for the expenditure to exceed the “significant” threshold, an approach of erring on the side of caution and saying that a financial resolution is required is likely to be adopted. If, however, the implications of a Bill for expenditure are very indirect or uncertain a resolution may not be required.
The second test is that the expected expenditure (whether it is new or increased) must be “significant”. As a result, a resolution may not be required for a Bill which will require expenditure but where the amounts involved are expected to be trivial or easily capable of being absorbed within existing budgets.
The combined amount of expenditure of the types mentioned in paragraphs (i), (ii) and (iii) of Rule 9C.16.3(b) in a Bill is used to determine “significance”. Expenditure of over £400,000 in any single financial year (regardless of whether that level of expenditure is ongoing or one-off) is the threshold for what is currently considered “significant” for the purposes of Rule 9C.16.3(b). Savings arising from provisions in the Bill may be taken into account in determining whether the overall cost of the Bill exceeds the threshold.
Rule 9C.16.4: resolutions required on grounds of charges or other payments into the SCF
A financial resolution is required if a Hybrid Bill satisfies the two tests set out in Rule 9C.16.4(a) and (b). The first test is that it would impose or increase a charge, or otherwise require a payment to be made, including by provision that is to be made by subordinate legislation. It is assumed for the purposes of Rule 9C.16.4 that a power to impose or increase a charge will be used.
The second test is that the charge or payment must be made – with one exception – to persons with a statutory duty to pay the amounts involved into the Scottish Consolidated Fund. In practice, this means the Scottish Ministers and other office-holders in the Scottish Administration, together with directly-funded bodies. It excludes most non-departmental public bodies (NDPBs), whose income is not payable into the Fund.
The exception (set out in brackets in Rule 9C.16.4(b)) relates to bodies which are not required to pay income received (e.g. from charges or payments) into the SCF, but who are only not so required because a provision in an Act of the Scottish Parliament (or in subordinate legislation made under such an Act) allows them instead to keep that income. Bodies in that position, in other words, have the power to “recycle” income – offsetting it directly against money they would otherwise require to be given from the SCF for expenditure purposes.
The purpose of the exception is to ensure that a Hybrid Bill which authorises such a body to levy charges or payments is not automatically exempted from the need for a financial resolution just because the body is not required to pay the income into the SCF. Without this exception, an arbitrary distinction would be drawn between public bodies which have this limited type of financial autonomy and those which don’t – even though the impact on the SCF of a Hybrid Bill authorising either type of body to raise new income would be essentially the same.
Rule 9C.16.5 provides two exemptions from the application of Rule 9C.16.4. The first is a similar exemption for insignificant amounts as is provided in relation to expenditure by Rule 9C.16.3. The income produced by a Hybrid Bill is currently considered “significant” for the purposes of Rule 9C.16.4 if it is likely to exceed £400,000 in any single financial year. As with Rule 9C.16.3(b), an approach of erring on the side of caution and saying that a financial resolution is required is likely to be taken in cases where there is substantial uncertainty about the level of income that will be produced by a Bill but where there is potential for it to exceed the “significant” threshold.
The second exemption is for charges or payments which are levied to recover the cost of goods or a service provided. Charges for goods that are reasonable and charges for services that are limited to approximately cost recovery level do not require financial resolution cover (provided in either case that the restriction is contained in the Hybrid Bill or existing legislation). This would cover, for example, a charge for providing someone required to register information with a copy of their entry in the register. It would allow the charge levied to be at a higher level than would be justified only in terms of marginal cost recovery (i.e. the cost of the paper, photocopier toner and staff time making the copy) – but not substantially higher. The underlying intention is that a financial resolution should only be required in cases where charges or payments can be levied in such a way as to generate substantial profit or to contribute significantly to the income of the body in question.
Lodging and moving motions for resolutions
Under Rule 9C.16.7, a motion for a resolution may be lodged and moved only by a member of the Scottish Government or a junior Scottish Minister. (The Minister who moves such a motion need not be the one who lodged it, and may move it without having added his or her name as a supporter (Rule 8.3.2).) The motion must be lodged within six months of the completion of Stage 1 (Rule 9C.16.8(a)) and amendments to such a motion are not admissible (Rule 9C.16.7). If no motion is lodged within this time or if such a motion is lodged but not agreed to by the Parliament when it is taken, the Bill falls (Rule 9C.16.8).
Cost-bearing amendments to Bills
Rule 9C.16.6 prevents there being any proceedings taken on an amendment to a Hybrid Bill (or a number of such amendments lodged together) if the effect of the amendment (or amendments) would be that the Bill, had it been introduced in that form, would need a resolution that it doesn’t have. Rule 9C.16.6 does not affect the admissibility of amendments, and an amendment (or amendments) to which it applies may be lodged and published in the Business Bulletin and in a Marshalled List. But unless the necessary resolution is first agreed to, the amendment (or amendments) may not be called, moved or debated, and the question cannot be put.
Motions for financial resolutions are usually broadly worded, which allows many cost-bearing amendments to be debated and decided on at later stages without a further financial resolution being required. Sometimes, however, a motion may be more narrowly worded, making it more likely that any cost-bearing amendments may require a new financial resolution.