The Scottish Parliament:-Parliamentary Procedure-Guidance on Committees

1.1 This is one of a number of volumes of Guidance published by the Scottish Parliament, each one covering a distinct area of Parliamentary proceedings.

1.3 The Scottish Parliament is a creation of statute and must act in accordance with the terms of the Scotland Act 1998. That Act provides, in section 22, that the proceedings of the Parliament shall be regulated by Standing Orders. This includes the proceedings of the committees. Only the Presiding Officer has the power (under Rule 3.1.1(c)) to determine any question that may arise as to the interpretation of Standing Orders.

1.4 This Guidance provides information about current working practices within the committees. However, provided that the Act, Standing Orders and Presiding Officer’s determinations are complied with, whilst this document may provide a useful source of reference, the committees can develop their own working practices. It cannot supersede the Act, Standing Orders or Presiding Officer’s determinations and, provided committees comply with the requirements of those documents, any resolutions of the Parliament and the general law, the Guidance is not mandatory and committees can continue to develop their working practices.

1.5 The Guidance is primarily intended as a source of reference for MSPs and Parliamentary staff but is also a useful source of reference for anyone wishing to follow committee proceedings or who wishes to contribute to the work of the committees by, for example, submitting evidence or acting as a committee adviser.

1.6 Anyone wishing to obtain detailed information about the work of individual committees should refer to the Committees pages on the Parliament’s website.

1.7 This Guidance is published only in electronic format and every effort will be made to ensure that it reflects current practices and procedures.

1.8 The Guidance was prepared by the Committee Office in the Parliament’s Clerking and Reporting Directorate, and comments and suggestions should be addressed in the first instance to the Head of the Committee Office who can be contacted at the Scottish Parliament, Edinburgh EH99 1SP or by e-mail at committee.office@scottish.parliament.uk

1.9 One of the founding principles of the Scottish Parliament is recognition of the need to promote equal opportunities for all.

1.10 The Conveners Group has agreed that consideration of equalities issues should be mainstreamed into the work of all committees.

1.11 This means that not only is each committee responsible for equality proofing legislation which it scrutinises, but also that equal opportunities criteria underpin the processes and mechanisms which support the committees in their other work and, in particular, in conducting inquiries. Committees, therefore, include equal opportunities considerations in matters such as identifying advisers, consultees and witnesses as well as identifying equal opportunities impacts as part of the inquiry and legislative processes.

2.1. Committees are normally established on a motion of the Parliamentary Bureau ¹ . Such motions also specify the membership, remit and duration of the committee (under Rule 6.1.3). It is also possible for an individual member, by motion, to propose the establishment of a committee (Rule 6.1.2), but in practice, a motion by an individual member would require the support of the Bureau which would lodge the relevant motion for decision by the Parliament.

2.2. Rule 6.1.5 requires that, for each session of the Parliament, seven “mandatory” committees must be established. Since the rules require these committees to be established, and separately specify their remits (Rules 6.4 to 6.11) and duration (Rule 6.12.1), it is, in practice, only the proposed membership of these committees that the Parliament has discretion to accept or reject when it considers the Bureau motion.

2.3. The mandatory committees are the Standards, Procedures and Public Appointments Committee, Finance Committee, Audit Committee, European and External Relations Committee, Equal Opportunities Committee, Public Petitions Committee and Subordinate Legislation Committee².

2.4. Two of these mandatory committees, the Standards, Procedures and Public Appointments Committee and Finance Committee, must be proposed to the Parliament by the Bureau within 21 sitting days of the general election (Rule 6.1.6). The other mandatory committees must be proposed by the Bureau within 42 sitting days of a general election.³ All mandatory committees are established for the duration of the session (Rule 6.12.1).

2.5. Most of the other committees established at the beginning of a session are referred to as “subject committees”. (The term is defined in Rule 6.1.4 to mean any committee established to deal with a particular subject, other than a mandatory committee or a committee established only to take certain stages of a Bill.) The practice so far has been for the Bureau to propose subject committees for the main areas of devolved policy, with remits roughly corresponding to the portfolio of a cabinet minister, and for these committees also to be established for the duration of the session. There are no procedural limits on the number of subject committees that may be established, and it is always possible for a new subject committee to be established mid-session, or for an existing one to be disbanded (under Rule 6.12.3).

2.6. Standing Orders provide for a third type of committee, distinct from the mandatory and subject committees, namely committees established for the purpose of taking certain stages of a particular Bill. These include:

2.7. Further information about these ad hoc bill committees can be found in the separate Guidance on Public Bills and Guidance on Private Bills. The rest of this Guidance deals only with the mandatory and subject committees.

2.8. Standing Orders (Rule 12.5) allow committees to establish one or more sub-committees⁴, with the approval of the Parliament on a motion of the Bureau.

2.9. The remit and membership of a sub-committee must also be agreed by the Parliament, on a motion of the Bureau. The remit cannot extend beyond the remit of the “parent” committee (Rule 12.5.2). It is for that parent committee to propose to the Bureau which of its members (and, where appropriate, which members of other committees) are to be members of the sub-committee (Rule 12.5.3).

2.10. Sub-committees are subject to the same rules as other committees in relation to the choice and role of the convener and deputy convener, the ability to appoint a temporary convener, rights to attend, the role of substitutes, quorum, timing of meetings and powers to invite witnesses and documents. Sub-committees report to the committees which establish them (rather than directly to the Parliament).

2.11. Each mandatory and subject committee must have at least five but not more than fifteen members, under Rule 6.3.2. In Sessions 1 and 2, most committees had seven, nine or eleven members; in Session 3, most have eight members. In proposing membership, the Bureau must have regard to the balance of the parties within the Parliament and to the qualifications and experience of any member expressing an interest in a particular committee (Rule 6.3.4).

2.12. In practice, the number of seats for each party on each committee is decided on a roughly proportional basis. This gives the larger parties a share of seats on each committee that matches their share of seats in the chamber, while smaller parties may have a single seat on some committees and none on others. It is then primarily for each business manager to advise the Bureau which members of his or her party are to take up the committee places allocated to that party. In this way, most discussions about committee membership take place within the Bureau and, if they are resolved successfully, it may be possible to have a single, unopposed motion for Parliamentary approval. However, it is also possible for any member to propose amendments to the Bureau motion when it is taken by the chamber.

2.13. The only procedural limitation on committee membership is Rule 6.7.2, which prohibits any Minister ⁵ or junior minister from being a member of the Audit Committee. In practice, no member appointed as a minister or junior minister has also served as a member of a committee at the same time, and members newly appointed as ministers have immediately resigned any committee memberships they hold. The Presiding Officer also does not serve on a committee, although Deputy Presiding Officers have served as committee conveners, members and substitute members.⁶ Given the number of committees established and the number of members needed to make them effective, it has been necessary for many MSPs to be members of two (and occasionally more than two) committees at once.

2.14. Under Rule 6.3.5, an MSP appointed to a committee will normally serve as a member of the committee for its duration (whatever duration is decided by the Parliament) unless the committee is disbanded or unless the member resigns, is removed by the Parliament (on a motion of the committee), or ceases to be an MSP (otherwise than by virtue of a dissolution).

2.15. An MSP resigns as a member of (or substitute for) a committee by intimating his or her resignation to the Presiding Officer, as chair of the Bureau (preferably copied to the clerk to the Bureau, the clerk to the committee and the committee convener). Such a resignation takes effect from the date intimation is received by the Presiding Officer (or any later date specified in the intimation) (Rule 17.2A). The clerk to the Bureau copies the intimation to the other Bureau members. An MSP may be removed from a committee by the Parliament only if a motion lodged on behalf of the committee (and therefore with the support of a majority of the committee’s members) is agreed to by the Parliament. Where a committee member ceases to be an MSP (for example, by resigning, being disqualified or on death), his or her membership of the committee ceases immediately, creating a vacancy on the committee. (While that vacancy exists, a party can deploy a committee substitute (paragraphs 2.29-2.37 below)). A vacancy is filled by the Parliament agreeing a Bureau motion to appoint a new member. Membership of the committee is effective from the date on which the Parliament agrees the motion.

2.16. Under Rule 12.1, each committee must have a convener to convene (i.e. call) its meetings and to chair them.

2.17. It is for the Parliament to decide, on a motion of the Bureau, the political party whose members are eligible to be the convener of each committee (or that the eligible members are those not representing any political party). The Bureau must have regard to the balance of political parties in the Parliament when making such proposals. In practice, the distribution of convenerships among the parties is done using a version of the “d’Hondt” formula. This is an algorithm that can be applied objectively to achieve fair distribution according to numerical strength. The first “round” allocates one convenership to the political party with the most MSPs; in the next round that party’s numerical strength is divided by 2 (i.e. the number of convenerships it has already secured +1) and so on. The only formal restriction is that the convener of the Audit Committee cannot be a member of a Scottish Government party (Rule 6.7.2).

2.18. At its first meeting, each committee is chaired by the oldest committee member present (and willing to perform this function) until a convener is chosen (Rule 12.1.6). The choice of convener is then the first substantive item of business (after declarations of interest). Should more than one eligible member seek the position, it would be for the committee as a whole to choose between them.

2.19. Under Rule 12.1.3, the Parliament may (but need not) also decide (on a motion of the Bureau) that every committee should have a deputy convener. The distribution of deputy convenerships among the parties is also done on a broadly proportional basis, using the d’Hont formula and the choice of deputy convener by each committee is largely a formality. In most cases, the convener and deputy convener are members of different parties, though this need not always be the case.

2.20. The role of the deputy convener (where there is one) is to chair meetings when the convener is unavailable and otherwise to carry out the functions of convener when the convener is unable to do so. More information about the role of the convener can be found in the Guidance for Conveners.

2.21. A convener is not required to be impartial and is entitled to participate in the work of the committee and express his or her view on the topic under consideration. Although there is no provision specifically requiring a convener to reflect the balance of the parties in calling speakers, it is normal practice for the convener to do so. Conveners hold both a personal and a casting vote in the event of a tie. There are no conventions on the use of the casting vote and how it is used is a matter for the discretion of the convener.

2.22. Conveners and deputy conveners hold office for the duration of the committee unless they resign (by letter to the Clerk), are removed from office by a decision of the committee or cease to be MSPs or members of the committee (otherwise than by virtue of a dissolution) (Rules 12.1.8 and 12.1.10). A convener or deputy convener can only be removed from office by the committee if a motion to that effect is agreed by absolute majority⁷. Any member of the committee may lodge such a motion and, if it is supported by at least one other committee member, it must be taken at the first meeting of the committee that is at least two days later (excluding days when the office of the Clerk is closed⁸) (Rule 12.1.8B).

2.23. If either the convener or deputy convener ceases to hold office, the committee must choose another convener or deputy convener, subject to the same restriction on party affiliation previously agreed by the Parliament. If that is not possible (for example, because the outgoing convener or deputy convener was the only member of that party on the committee and has not been replaced), the Parliament must take a further decision about the political party from which the convener or deputy convener is to be drawn (Rule 12.1.9).

2.24. Where the office of convener is vacant, the meeting will be chaired by the deputy convener for the purpose of choosing a convener (Rule 12.1.13).

2.25. Where the office of deputy convener is vacant, and there is a convener, he or she will chair the meeting as normal and a new deputy convener will be chosen⁹.

2.26. Rules 12.1.11 and 15 to 17 make provision for a committee to choose a temporary convener to carry out the functions of deputy convener in certain specific circumstances.

2.27. Temporary conveners are only required when there are deputy convener functions to be carried out and either there is no deputy convener or the deputy convener is unavailable or unable to act (Rule 12.1.11). The need for someone to carry out deputy convener functions may arise

2.28. In the first of these circumstances, the meeting is chaired by the convener (before he or she leaves the chair) or by the oldest committee member who is willing to do so, until a temporary convener is chosen. In the second of these circumstances, the oldest committee member must convene (and then chair, if he or she is willing to do so) a meeting of the committee for the purpose of choosing a temporary convener (Rule 12.1.16). Once chosen, the temporary convener takes the chair and exercises the functions of the convener until the convener or deputy convener (if there is one) is again able to act.

2.29. Each political party which has two or more MSPs may nominate one of its members to be the party’s substitute on each committee (Rule 6.3A). A party can nominate only one substitute per committee on which it has a member and a member cannot be nominated to be a committee substitute for more than one committee (or for a committee of which he or she is already a member) (Rule 6.3A). Nominations are made to the Bureau, which then proposes the substitutes’ names to the Parliament in a motion. A member’s appointment as a committee substitute begins when the Parliament agrees to the Bureau motion and then lasts for the duration of the committee unless the substitute resigns, is removed by decision of the Parliament (on a motion of the committee) or ceases to be an MSP, or unless the party ceases to have two MSPs.

2.30. The main role of the committee substitute is to stand in for a committee member of the same party if that member is unavailable for a committee meeting or is unable to act as a committee member at any other time because of illness, family circumstances, adverse travel conditions beyond the member’s control, a requirement to attend to other Parliamentary business or urgent constituency business (Rule 12.2A.1). “Other Parliamentary business” includes attendance at meetings of other Parliamentary committees (including outside Edinburgh), other committee events (such as fact-finding visits or informal briefings) and participation in external events or activities in the UK or overseas (such as “Tartan Day” or the annual conference of the Commonwealth Parliamentary Association) where the member has appropriate Parliamentary approval to attend as a representative of the Parliament (and not just on behalf of a political party).¹⁰

2.31. Committee substitutes may also stand in where there is a temporary gap in the membership of a committee (for example, where a member has died or resigned, and a replacement member has not yet been appointed). In addition, committee substitutes may stand in for committee members of the same party who are excluded (by Rule 9.13A) from participating in any consideration by the committee of a Bill (or proposal) that they are promoting (unless, of course, the substitutes are themselves excluded by the same Rule).

2.32. It is important to note that a committee substitute is entitled to attend only where the member cannot attend for one of these specified reasons; having a member on a committee and a substitute does not give a party the right to decide which of them attends on a particular occasion.

2.33. When a committee substitute attends a meeting (or other committee activity), he or she assumes the full rights of an ordinary member of the committee. In particular, the substitute can attend meetings (or parts of meetings) held in private, and can vote. However, if two or more members of that party are unavailable, the party substitute still has only a single vote. In addition, a substitute who stands in for the convener, or the deputy or temporary convener, does not take on the additional functions of those offices (Rule 12.2A.5). So if the convener’s substitute, for example, attends in place of the convener, the meeting would be chaired by the deputy convener rather than by that substitute.

2.34. With one exception, where a committee substitute participates in a meeting (or other committee activity) in place of a committee member, the member is prevented from then participating as a member in the remainder of that meeting (or activity) (Rule 12.2A.3). For example, if a substitute takes the place, during a meeting, of a committee member delayed in traffic, that member cannot take over from the substitute if he or she arrives later in the meeting. The member is, however, entitled to attend in the more limited capacity available to all MSPs (under Rule 12.2.2) – i.e. he or she may participate in public items at the discretion of the convener, but may not vote.

2.35. The exception is that, if the substitute is taking the place of a member excluded from consideration of a Bill (or proposal) under Rule 9.13A, the substitute may only participate while the Bill (or proposal) is under consideration, and the member is only excluded for that item. For example, if a committee member is also the member in charge of a Member’s Bill being considered by the committee under item 2 on the agenda, he or she is excluded from participating as a member during that item, and the party’s substitute can take his or her place. If item 2 is taken in private, the member must leave the meeting; but if it is held in public, he or she may continue to attend, but only in another capacity – to give evidence to the committee on the Bill, to question other witnesses, or simply to observe. If there is a division during consideration of the Bill, the substitute has the right to vote but the member does not; but as soon as that item is concluded, that right reverts to the member.

2.36. Where the committee member who is excluded from consideration of a Bill (or proposal) under Rule 9.13A is an independent MSP, or the sole representative of a political party, there will be no committee substitute able to take his or her place. In these circumstances, the Bureau may nominate an MSP as a “Bill substitute” on the committee for the duration of the Bill (under Rule 6.3B). The choice of Bill substitute must not affect the Scottish Government/Opposition balance on the committee. The same MSP may be a Bill substitute for more than one Bill being considered by a committee, and for the same Bill on more than one committee. In terms of participation in proceedings, a Bill substitute has the same rights as a committee substitute standing in for a member excluded under Rule 9.13A – i.e. he or she has the full rights (including voting rights) of a committee member, but only for the duration of relevant items.

2.37. Substitutes are entitled to receive all committee papers, including private papers. They may, however, prefer to receive papers only for meetings they expect to attend, or only normally to receive public papers (getting private papers in addition only for meetings they expect to attend).¹¹

3.1. Committees are, by their nature, subsidiary bodies in the sense that they only operate within the remit given to them by the Parliament which establishes them and to which they are, ultimately, accountable. However, within those remits, Scottish Parliament committees have a wide range of general powers which give them the ability to set their own priorities and act with a high degree of autonomy.

3.2. The general function of a committee is to consider matters within its remit – “competent matters” – and report on them to the Parliament. Rule 6.2 sets out in more detail what this can involve. It includes

3.3. In practice, however, not all committees do all of these things. For one thing, the remits of the mandatory committees restrict them to only some of these general functions. For the subject committees, the balance among these functions is largely a product of how much business is formally referred to them from elsewhere in the Parliament. Some subject committees find that the large majority of their time is taken up with matters referred to them (particularly Bills introduced by the Scottish Government¹², statutory instruments and petitions), while others can spend more of their time on inquiries of their own choosing.

3.4. In relation to most of these types of activity, the main output of a committee’s work is a published report. Formally speaking, these reports are made normally to the Parliament (as the committee’s “parent” body), but in practice, some or all of the recommendations may be directed primarily at the Scottish Government or at other persons or organisations. Committee reports can (with a few specific exceptions) only recommend actions for the Parliament (or others) to take – Scottish Parliament committees are in this sense quite distinct from the committees that operate within many local authorities, which are delegated a range of “executive” functions.

3.5. Not all committee activity is directed towards the production of a report. Sometimes a committee may take evidence, or consider an issue, just in order to inform itself, or without seeking to reach a definite conclusion (for example, a one-off evidence session with a minister to find out about the Scottish Government’s priorities for the coming year). In other cases, a committee may reach a conclusion without it being necessary, or without there being time, to express that in the form of a discursive report (i.e. with an explanation of the background or reasoning). Committee consideration of petitions often takes this form, for example (though it is also, of course, possible for a committee to conduct a full inquiry on a petition and publish a report at the end of that process).

3.6. Where a question arises about whether it is competent for a particular committee to consider a particular matter – that is, whether the matter is within that committee’s remit – it is for the Bureau, after consultation with the Conveners Group¹³, to decide (Rule 6.13.1).

3.7. Where a matter falls within the remit of more than one committee, Rule 6.13.2 allows the Parliament, on a motion of the Parliamentary Bureau, to designate one committee to be the lead committee. Before proposing such a motion, the rule requires the Bureau to consult the Conveners Group. It should be noted that this procedure does not apply to the designation of lead committees in relation to Bills and SSIs. These are dealt with under Rules 9.6.1 and 10.2.2 respectively and the procedure for designation of a lead committee does not involve consultation with the Conveners Group.

3.8. In practice, it has not been necessary for the procedure contained in Rule 6.13.2 to be used, as committees have agreed informally any issues arising.

3.9. If any matter falls within the remit of more than one committee, the committees concerned may, if they wish, seek the agreement of the Bureau to meet jointly. The Bureau must consult the Conveners Group before agreeing (Rule 6.14.1).

3.10. At joint meetings, both (or all) of the committees involved must be individually quorate, i.e. there must be at least three members from each committee in attendance. The meetings are chaired by one of the conveners of the committees involved (Rule 6.14.2), by agreement between the conveners concerned. A joint agenda and joint minutes are produced of any meeting held jointly, and any report that results is also published in the joint names of all the committees involved (Rule 6.14.3). As an alternative to full joint meetings of two or more committees, the committees concerned may each seek to establish sub-committees in order for those sub-committees to consider a particular matter jointly (Rule 6.14.4).

3.11. Joint consideration is an alternative to having one committee designated as the lead committee (to which the others report). It is therefore appropriate when no single committee’s remit gives it an obvious primacy in relation to the subject, or where there are real advantages in involving members of the different committees in questioning the same witnesses or discussing together a subject of mutual interest. During part of Session 1 and throughout Session 2, there were two Justice Committees with identical remits, and their practice was to meet jointly during the annual budget scrutiny process..

4.1. Under Rule 12.3.1 it is for each committee to agree its own programme of work. In practice, most committees plan their work programmes for at least six months ahead and sometimes for twelve months ahead.

4.2. To consider what should be included in a committee work programme, committee members often find it useful to get together informally towards the end of the summer recess. Members can make an assessment of the likely workload as a result of Bills, subordinate legislation, European legislation and petitions as well as the time needed to scrutinise the Scottish Government budget. They can also assess the time that is likely to be available to undertake committee inquiries and give consideration to possible topics for inquiries.

4.3. Topics for inquiries can be generated by committee members themselves, other MSPs, stakeholder/interest groups and members of the public as well as arising from briefing papers prepared by Parliamentary staff. Work programmes agreed by committees in this way require to be flexible and are reviewed during the year to take account of changing priorities and the political climate. A work programme may, for example, require refinement following the First Minister’s statement on the Scottish Government’s legislative programme which normally occurs in September, and may need further adjustment on the introduction of a Bill, when a timetable for completion at Stage 1 and Stage 2 will be agreed with the Bureau.

4.4. Although the initial discussions of committee work programmes may take place in an informal setting, the work programme is then agreed by each committee in a committee meeting.

4.5. Under Rule 12.3.1 it is for a committee to decide the dates and times of its meetings. The frequency of committee meetings is determined by a committee’s work programme but it is normal for a committee to meet either weekly or fortnightly. From time to time, committees require to meet more than once a week if the work programme so demands. Also under Rule 12.3.1, the agenda for each meeting is set by the convener with the assistance of the clerk, who notifies members by publishing the agenda in the Business Bulletin¹⁴. In general, agendas are available the preceding Thursday for committees meeting on a Tuesday and the preceding Friday for committees meeting on a Wednesday. The committee clerks also send copies of the agenda and papers to members of the committee concerned.

4.7. Under Rule 5.5.1 the agenda published in the Business Bulletin must give details of the business to be considered. As a result, any changes to the agenda can only be made if there is still time available to publish an amended agenda.

4.8. To ensure that both committee members and members of the public get proper notice of the business to be considered, items on agendas are specific about the business to be taken and items such as “matters arising” and “any other business” do not appear.

4.9. The Business Bulletin and committee web-pages also contain information about forthcoming business expected to be taken at subsequent meetings of committees.

4.10. Committees can meet on any day, whether a sitting day or not, although standing orders (Rule 12.3.3) provide that committee meetings shall “not normally” be held in the Parliamentary recesses. In practice, it is extremely unusual for committee meetings to be held during Parliamentary recesses.

4.11. Rule 12.3.3A provides that committees cannot meet when the Parliament is meeting although they can meet when a meeting of the Parliament is suspended or has been adjourned. In practice this means that committees can meet, if necessary, when the Parliament has been suspended for a lunch break. This does not happen frequently but can be useful if a short additional meeting is needed, for example to finalise a report when time is of the essence. It is still necessary to comply with the formalities of publishing the agenda in the Business Bulletin.

4.12. Committees normally meet on Tuesdays and Wednesday mornings. The Conveners Group agrees an outline timetable of meetings allocating each committee a regular half day slot. The outline timetable takes account of members’ other commitments such as membership of the Scottish Parliamentary Corporate Body (SPCB) or the Parliamentary Bureau or membership of more than one committee.

4.13. Within this framework, committees can, if need be, schedule additional meetings when required, for example, to meet the timetable agreed with the Parliamentary Bureau for consideration of Stage 1 or Stage 2 of a Bill, although regard must be had to the availability of accommodation and resources.

4.14. Committees can meet anywhere in Scotland, with the approval of the Parliamentary Bureau and the Conveners Group (Rule 12.3.2). Meetings outside Edinburgh provide a valuable opportunity for people from different parts of Scotland to attend parliamentary proceedings – the Finance Committee, for example met in Cupar when taking evidence as part of its scrutiny of the budget in 2004. Members find it particularly useful to hold meetings outside Edinburgh where topics under consideration have a local interest. For example, the Education Committee met in Skye when carrying out its inquiry at Stage 1 of the Gaelic Language (Scotland) Bill 2004.

4.15. Committees cannot hold meetings which are part of the proceedings of the Parliament in venues outside Scotland. Members of committees may, in certain circumstances, travel abroad in connection with the work of the committees but these visits are for the purpose of fact finding or to undertake case studies. As these visits do not form part of the proceedings of the Parliament, the provisions of section 41 of the Scotland Act 1998 do not apply¹⁵.

4.16. Rule 12.3.4 provides that committee meetings shall be held in public except where a committee decides, under Rule 12.3.5, to hold all or part of a meeting in private. That rule, however, goes on to provide that a committee cannot agree to meet in private when it is considering proposals for legislation (whether before the Scottish or UK Parliament) or EC legislation, international conventions or proposals for law reform – although committees can decide to take evidence in connection with these matters, if appropriate, in private. The Presiding Officer has also ruled (4 September 2002) that committees can consider draft Stage 1 reports on Bills in private.

4.17. It is good practice not to leave a decision to meet in private to the day on which the item is scheduled to be taken. Taking such a decision in advance allows proper notice to be given to all interested parties and avoids members of the public turning up to hear an item, only to find the committee agreeing to take it in private. If a decision has been taken at an earlier meeting, then the agenda item for the business concerned will clearly indicate that the agenda item will be taken “in private”.

4.18. When a committee is considering an item of business in private, the effect of Rule 12.2.2 is that only committee members (including substitutes), support staff and any witnesses from whom evidence is being taken in private can remain in the room. Everyone else, including other MSPs who are not members of the committee, will be asked to leave. However, Rule 12.2.3 provides an exception in relation to the situation where a committee is taking evidence in private on a Bill when, in addition to committee members, the member in charge of the Bill and, for non-Executive Bills, the relevant minister may attend and participate.

4.19. When a committee is meeting in private, its proceedings are not broadcast and, unless the Parliament has directed otherwise, there is no Official Report of its deliberations (Rule 16.5.2). However, the committee minutes record the business taken and any decisions reached during the private as well as the public items¹⁶.

4.20. Where committee meetings are held in private, the papers considered and the detail of the committee discussions remain confidential and are covered by section 9.4 of the Code of Conduct for Members. Under that code it is a breach for any member to circulate, show or transmit any such material to any other person or body, including to other MSPs who are not members of the committee or to the Scottish Government.

4.21. Committees have taken items in private where they wish to discuss confidential material in connection with a third party (for example individual claims for witness expenses or shortlists of committee advisers). Committees have also met in private to take oral evidence or to consider written evidence of a particularly sensitive nature (for example evidence involving commercial confidentiality or evidence from vulnerable or intimidated people). Committees have also met in private to discuss draft reports when they have considered that this will facilitate the achievement of consensus and prevent media focus on preliminary conclusions which may not feature in the final report. Each decision to meet in private has, however, to be taken based on the facts and circumstances of the particular item of business.

4.22. The general rule is that only members have the right to participate in the proceedings of the Parliament, which includes proceedings in committees. This stems from an interpretation of the Scotland Act 1998 in which provision is made in section 27 for the Lord Advocate or Solicitor General to participate in the proceedings of the Parliament if they are not members of the Parliament. It therefore follows that, in the absence of any further such special provision, participation in the proceedings is otherwise restricted to members.

4.23. Rule 12.2.2 and Rule 12.2.3 contain provisions which apply specifically to participation in the proceedings of committees. Rule 12.2.2 allows any MSP to attend committee meetings held in public and participate with the convener’s permission, but not to vote. In practice it is relatively unusual for members to attend meetings in this way although, where they do, it has been the practice for conveners to allow them to participate in the committee’s consideration of business.

4.24. When a committee is considering a Bill, Rule 12.2.3 gives the member in charge of the Bill and, in the case of a non-Executive Bill, the relevant minister or deputy minister the right to participate in committee proceedings, but not to vote.

4.25. Witnesses attend committee meetings for the purpose of giving evidence (Rule 12.4.1)¹⁷.

4.26. Staff and advisers attend committee meetings to provide advice or clarification if requested to do so by the convener¹⁸.

4.27. A convener convenes and chairs meetings of a committee, ensuring that the procedural requirements are fulfilled.

4.28. The convener is responsible for ensuring that the published agenda is followed, for keeping order in committee meetings and for calling members and witnesses to speak. Conveners facilitate debate in the committee and, where possible, allow the committee to reach a consensus view, whilst acknowledging that there will be differences between members.

4.29. The convener also has a role as a full member of the committee and, on occasions, may be the sole representative of his or her party on the committee. Accordingly, in addition to chairing the meeting conveners also participate fully in committee meetings by, for example, asking questions of witnesses, expressing opinions on matters under discussion and voting as an individual in the event of a division.

4.30. A member must make a declaration of interests at committee meetings wherever the requirements of section 13 of the Interests of Members of the Scottish Parliament Act 2006 apply. If a member is uncertain as to whether a declaration is required, he or she can consult the clerks to the Standards, Procedures and Public Appointments Committee or his or her own legal advisers. Responsibility for complying with the rules on declarations of interest, however, lies with the individual member.

4.31. It has been established as good practice for members to declare interests relevant to the remit of a committee at its first meeting, irrespective of the business before the committee at that meeting. Members attending a committee as a substitute member should also declare interests relevant to the remit of that committee at the first meeting of the committee they attend or on the first occasion on which they address the committee, irrespective of the business before the committee at that meeting.

4.32. Thereafter, a declaration of interest must be made at each committee meeting where a relevant subject is on the agenda and a member participates, other than by simply attending or voting.

4.33. The declaration should be made at the start of the relevant agenda item (or as soon as possible thereafter) and, in any event, before the member participates in the proceedings.

4.34. The declaration must be made whether the meeting is in public or in private. It is good practice to make the declaration in public, even if it has already been made in private. It is also good practice to ensure that witnesses are aware of the declaration, if it has been made earlier in the meeting.

4.35. Also, as a matter of good practice, members should declare any business or personal relationships they have with witnesses or advisers to a committee. In the case of a witness, this should be done before the witness gives evidence. In the case of an adviser, the member should advise the clerk to the committee at the stage that the person concerned is being considered for appointment, so that this can be drawn to the attention of other members. If the committee subsequently decides to appoint the person as an adviser, there is no need to make a further declaration.

4.36. The quorum is the minimum number of members required to allow a committee to commence an item of business. Under Rule 12.2.1, a committee shall not commence consideration of any business or vote if the number of committee members present (including the convener) is fewer than three. The effect of this is that if attendance falls below three members during the course of a meeting, the committee can conclude the item of business under consideration, but the committee cannot vote on that item and cannot commence another item of business.

4.37. A member may be present at a committee, count towards the quorum and participate fully by means of video conference.

4.38. Although proceedings in committees tend to be less formal than in the Chamber, it is important that order is maintained not only out of respect for the Parliament but also to ensure that an accurate Official Reportcan be produced of the proceedings and that committee members, witnesses and the public gallery can keep track of the proceedings.

4.39. Under Rule 7.2, a member should speak only when called upon to do so by the convener. A member who has been called upon to speak should not be interrupted by any other committee member except the convener. The convener is entitled to enforce time limits on members’ speeches, although this is relatively unusual as committee meetings rarely involve formal debates.

4.40. During committee meetings, the convener is generally referred to by title although he or she can be addressed by name if he or she wishes. Members normally address each other by name rather than by their title. It is not uncommon in committee meetings for members to use first names. However, when that happens it is helpful if a member’s full name can be used on at least the first occasion, to help identification by all present, particularly those with sight disabilities or listening to a sound broadcast. Members and witnesses remain seated during committee proceedings (unlike in the Chamber where members stand to speak).

4.41. If the convener considers that business is being disrupted by the behaviour or conduct of a member, the convener will ask the member to desist. Ultimately, the convener has the authority under Rule 7.3.3 to order a member to leave the meeting and to exclude him or her for the rest of that meeting (or any other meeting held on the next following sitting day).

4.42. The convener cannot exclude a member from subsequent meetings of the committee although this can occur if a decision is taken by the Parliament on a motion of the Parliamentary Bureau.

4.43. Under Rule 7.5, a member may not make reference in a committee meeting to any matter in which legal proceedings are active (as defined in section 2 of the Contempt of Court Act 1981), unless special permission has been received from the Presiding Officer. If a member raises an issue without the Presiding Officer’s permission which, in the view of the convener is, or may be, sub judice the convener will order the member to stop.

4.44. The Presiding Officer issued guidance on the matter of parliamentary privilege in August 1999 and the text of his announcement can be found in Business Bulletin 38/1999 . It is strongly recommended that anyone seeking information on privilege in the Scottish Parliament read this guidance in full.

4.45. In the Scottish Parliament, any “privilege” is conferred by or under the Scotland Act 1998.

4.46. Section 41 of the Scotland Act 1998 provides that for the purposes of the law of defamation, any statement made in “proceedings of the Parliament” (which includes proceedings in the committees) and the publication under the authority of the Parliament of any statement is absolutely privileged. This means that such statements cannot form the basis of an action of defamation. “Statement” in this context means “words, pictures, visual images, gestures or any other method of signifying meaning”. Accordingly, this protection applies to any statements made in public or private meetings of a committee and any committee reports, including written evidence published in or as an annex to a committee report.

4.47. It is, however, important to note that the protection applies only to statements made in the proceedings of the Parliament and publications under the authority of the Parliament. The effect of this is that privilege does not attach to statements made when a member is undertaking any activities such as a fact-finding trip or a case study visit which is not a committee meeting convened under Standing Orders. It also means that any written material published on a committee’s webpage, such as written evidence, which is not published as a committee report under the authority of the Parliament, is not covered by privilege.

4.48. It is also important to note that the protection provided by section 41 relates only to the law of defamation. It does not shield members from the operation of the law in relation to other matters, for example incitement to racial hatred.

4.49. In general, under Rule 11.8.1, it is for the convener to decide the time at which members will take a decision on any item of business. The exception to this is in connection with amendments to Bills where the convener is obliged to put the question immediately after the amendment is debated (or immediately after the amendment has been moved, if the amendment has already been debated) (see Rule 11.8.2).

4.50. In practice, committees take many decisions by consensus without the need for a division²⁰. Where consensus is not arrived at and a division is necessary, members vote by show of hands unless a member has requested a roll call vote and the convener has agreed to that request (Rule 11.8.3).

4.52. In a roll call vote, the convener or the committee clerk will call the names of the committee members in alphabetical order and each member may answer “yes”, “no”, “abstain”, or not vote.

4.53. Decisions are taken by a simple majority unless Standing Orders or any other enactment specify that an absolute majority is needed (Rule 11.11). A simple majority for an outcome means that, if there is a division, more members present vote for that outcome than against and no account is taken of members who abstain. An absolute majority for an outcome means that more than half the total of committee members (as opposed to more than half the number of members present) vote in favour of that outcome.

4.54. The convener has an individual vote and a casting vote which he or she is required to exercise in the event of a tie (Rule 11.8.4b). The purpose of the casting vote is to ensure that an issue that has gone to a division is decided one way or another. There are no conventions on how the casting vote should be exercised and it is a matter for the discretion of the convener. It is good practice for the convener to explain the basis on which he or she is using the casting vote immediately before doing so.

4.55. A committee meeting continues until suspended or closed by the convener (Rule 7.4).

4.56. A meeting is normally closed after the committee completes its consideration of all the agenda items. In exceptional circumstances, a committee could agree to defer business to a future date, but this should be avoided in order to minimise disruption to members, witnesses and members of the public.

4.57. A convener can suspend a committee meeting (under Rule 7.4.1 as applied by Rule 7.8.1) in the following circumstances:

4.58. If the convener suspends in the event of a disturbance, the meeting is suspended when the convener leaves the chair after ordering the person or persons causing the disturbance to stop (Rule 7.4.2).

4.59. Where the convener has suspended because of an emergency or a disturbance, he or she can reconvene the meeting only at a time later in the same day. If proceedings are suspended as a result of timetabling issues or for a meal or other break, the convener can specify a time at which the proceedings will be reconvened. A suspended meeting which is not reconvened at a time later in the same day is deemed to have been closed at the time when it was suspended (Rule 7.4.3).

4.60. Proceedings in committees are regulated by Standing Orders. A committee cannot take a decision to suspend or vary Standing Orders. Any decision to suspend or vary Standing Orders for the purposes of a committee meeting or part of a committee meeting or for any item of business taken in a committee meeting must be taken by the Parliament on a motion of the Parliamentary Bureau (Rule 17.2).

4.61. During the course of committee meetings, members may ask for clarification of the provisions of Standing Orders or guidance on practice and procedure in committees. Where these arise, they may be answered by the convener or the convener may ask the clerk to respond. However, such requests for clarification are not “points of order” in terms of Standing Orders. The provisions of Rule 8.17 do not apply to committees and points of order can only be made in the chamber and can be answered only by the Presiding Officer²¹.

4.62. When a committee is meeting in public, proceedings can be viewed from the public gallery, free of charge but subject to availability. Seats are bookable in advance via the Parliament’s Public Information Office.

4.63. When attending a committee meeting, members of the public must comply with conditions determined by the Presiding Officer under Rule 15.2 (Presiding Officer's Guidance on Behaviour) as well as to instructions from the committee convener. In particular, committee conveners have agreed that they consider it disruptive for notes to be passed from the public gallery to anyone seated at the committee table²².

4.64. In terms of Rule 16.1 the minutes of each committee meeting require to be drawn up by the clerk. The minutes record all the items of business taken in the committee at the meeting and the results of any decisions taken and of any divisions and elections which took place. This includes items taken in private, though in such cases it may be necessary (depending on the circumstances) for the minutes to record decisions in such a way as not to reveal the details of private discussions. The minutes are published on the committee webpage as soon as possible after conclusion of proceedings and normally within 24 hours.

4.65. The Official Report (OR) produces a “substantially verbatim” transcript of what is said during public committee meetings. Usually two official reporters sit at the committee table (next to the clerks) in order to “log” the proceedings (although the transcript is prepared from a digital audio system). The Official Report is produced, in hard copy and on the Parliament’s website, within a few days and – other than in exceptional circumstances – before the next meeting of the committee. Rules for the prioritisation of the publication of Official Reports of committee meetings have been agreed by the Conveners Group.

4.66. During a committee meeting, it may be necessary to clarify what a member or witness has said in which case a note will be passed from the official reporter to the individual in question seeking the information required. Once the Official Report is published, a copy is sent to each witness giving them the opportunity to request corrections. The corrected, final version is normally available within a few weeks of the meeting on the Parliament’s website and it is usually that final version which is included in any published committee report.

4.67. Unless otherwise directed by the Parliament, proceedings of committees held in private are not recorded in the Official Report. To date, no such direction has been given.

4.68. Committee proceedings are broadcast live within the Parliamentary complex. They are also web cast live on the Parliament’s web site where they can be viewed on Holyrood.tv.

4.69. Rule 12.9.1 requires all mandatory and subject committees, as soon as practicable after the end of each Parliamentary year²³, to report to the Parliament on the committee’s activities during that year including details of its meetings and the number of times that it has met in private. In the case of the parliamentary year ending on the dissolution of the Parliament before a general election, each committee is required to submit a report before the Parliament is dissolved.

4.70. The Parliament’s website is a useful source of information about the committees. Each committee has its own web page which gives information about membership as well as providing access to committee agendas and public papers. Official Reports of committee meetings can be accessed through the committee web pages, as can minutes of meetings and committee reports.

4.71. Each committee is supported by a clerking team. The clerks are responsible for ensuring the preparation of all meeting papers (including draft reports), providing procedural advice to the convener and committee members, managing inquiries (including receiving written evidence and arranging oral witnesses), responding to correspondence and liaising with both internal and external contacts regarding the work of the committee. When a committee is taking Stage 2 of a Bill, the clerks are also responsible for handling all amendments lodged for that stage (and subsequently for Stage 3).

4.72. At least one member of the clerking team will be in attendance at a committee meeting and will be seated next to the convener. A committee cannot meet without a clerk in attendance as the clerk is required to produce the committee minutes.

4.73. Although clerks cannot participate directly in a committee’s consideration of any item of business and do not normally speak in meetings, they can be called upon by the convener to speak to give advice on procedural matters. The convener can also ask the clerk privately for procedural advice during a committee meeting.

4.74. In addition, clerks to the Standards, Procedures and Public Appintments Committee can be asked for advice on matters of policy being considered by that committee.

4.75. Members of the staff of the Official Report attend public committee meetings and sit at the committee table, normally next to the clerks, for the purposes of preparing the report²⁴.

4.76. A member of broadcasting staff is present at each committee meeting to operate the sound and broadcasting system, including operating the microphones. Members and witnesses do not have to press the “request to speak” button before contributing, as members do in the chamber.

4.77 Each subject committee (and some mandatory committees) are supported by one or more specialist researchers from the Parliament’s information centre (SPICe). Part of the role of the researchers is to support the work of the committees by producing research briefings, for example on Bills and Legislative Consent Memorandums. SPICe researchers also frequently assist in planning inquiries, identifying potential advisers and witnesses and providing access to publications.

4.78. Staff who have provided research services to committees are often in attendance at committee meetings. They do not normally sit at the committee table or speak in meetings.

4.79. Members of staff from the Parliament’s Legal Services Directorate may be in attendance, particularly at meetings of the Subordinate Legislation Committee. Where this occurs the legal adviser will usually sit at the committee table, by the clerks, and provide advice if asked to do so by the convener.

4.80. Members of the Parliament’s security staff are present during all public meetings. Their role is to assist with public access and any issues relating to the security and safety of the building and its occupants. They do not sit at the table

4.81. Where a committee has appointed an adviser (see paragraphs 5.52 to 5.54) he or she may be present at a committee meeting and may be seated at the table. The convener may invite the adviser to provide advice or clarification during the committee meeting. An adviser cannot, however, participate directly in committee meetings by questioning witnesses.

¹ Parliamentary Bureau The body within the Parliament responsible under Standing Orders (chapter 5) for proposing the business of the Parliament, recommending the establishment of committees, and other related functions. It is not a parliamentary committee. It consists of the Presiding Officer (chair), a representative of each party that has five or more MSPs, and a representative of any group of five or more smaller-party members or independents. There is a system of weighted voting according to party strength. The Deputy Presiding Officers also attend.

² Until September 2007, the Procedures Committee and the Standards and Public Appointments Committee were separate mandatory committees.

³ Sitting days are defined in Rule 2.1.3. They exclude weekends and some weekdays during recesses.

⁴ No sub-committees were established in session 1 and only one in session 2.

⁵ The Scotland Act makes a distinction between “Ministers” (appointed under s.47 of the Act) and “junior Scottish Ministers” (appointed under s.49). Only the former, together with the First Minister and the Scottish Law Officers (Lord Advocate and Solicitor General for Scotland) qualify as “members of the Scottish Executive” (also known collectively as “the Scottish Ministers”). In Session 3, the Scottish Executive has changed its name (except for formal, legal purposes) to “the Scottish Government” and has adopted the terminology of “Cabinet Secretary” for Ministers appointed under s.47 of the Act and “Minister” for junior ministers appointed under s.49. In this Guidance, all references to “ministers” or to “Scottish Government ministers” cover both categories unless the contrary is explicitly stated.

⁶ Murray Tosh continued as Convener of the Procedures Committee in session 1 after his election as a Deputy Presiding Officer, and was appointed a substitute member of that committee in session 2. He was also a member of the Subordinate Legislation Committee in Session 2. Trish Godman was appointed as a substitute member of the Environment and Rural Development Committee in session 2, having already been appointed a Deputy Presiding Officer.

⁷ Absolute majority When the number of committee members voting for removal is more than half of the total number of members of that committee or sub-committee (as opposed to the number of members voting) (Rule 11.11.3).

⁸ The office of the Clerk is closed at weekends, on public holidays and some days during recesses (as decided by the Parliament under Rule 2.1.3).

⁹ For information on the role of the convener in a meeting, see paragraphs 4.28 to 4.30.

¹⁰ See Procedures Committee, 6th Report, 2006, Public Bills and Substitution, paragraph 50.

¹¹ The Procedures Committee, 2nd Report, 2002 envisaged substitutes being routinely circulated with public and private committee papers (paragraph 32). Substitutes may prefer not to receive private papers routinely, however, on the grounds that this imposes additional obligations on them in relation to how these papers are handled.

¹² Such Bills are referred to in the Standing Orders and hence in this Guidance as Executive Bills.

¹⁴ Business Bulletin A publication produced by the Clerk of the Parliament containing details of current and future business, such as the business programme, the daily business list, agendas for committee meetings, written questions, motions, and other matters to be notified to MSPs. It is produced daily during Parliamentary terms and less frequently during recesses.

¹⁵ For more information on privilege, see paragraphs 4.45.

¹⁶ For more information on Minutes, see paragraph 4.65.

¹⁷ For more information on witnesses, see paragraphs 5.12 to 5.17 and 5.20 to 5.43.

¹⁸ For more information on advisers, see paragraphs 5.52 to 5.54.

¹⁹ For more details on the appointment of conveners, deputy conveners and temporary conveners see paragraphs 2.16 to 2.28, and the Guidance for Conveners.

²⁰ Division – this is a formal term used to describe a decision that is taken by members voting.

²¹ Point of order An intervention, of no more than three minutes, by a member during parliamentary proceedings questioning whether proper procedures have been or are being followed and responded to by the Presiding Officer, usually straight away. A point of order takes precedence over the business under consideration (Rule 8.17).

²² This does not prevent individuals who are attending in support of a witness, but not themselves sitting at the committee table, from passing notes discreetly to the witness. See also the Guidance for Conveners, paragraph 44.

²³ Parliamentary year A period, normally 12 months, beginning on the date of the first meeting of the Parliament following a general election, and on each subsequent anniversary of that date within that session.

²⁴ For information on the Official Report, see paragraphs 4.66 to 4.68.