General

This section about the Presiding Officer is one of three section set under the heading of the Presiding Officer and Administration. Other sections in the Act relating to the Presiding Officer and setting out his statutory functions include:

Sections 2, 3 and 9 - recommending to Her Majesty the date for holding general elections and fixing the dates of by-elections;

Sections 10 and 14 - receiving notification of a member's resignation and of the filling of a vacancy in a regional seat;

Section 21 - membership of the Scottish Parliamentary Corporate Body;

Section 26 - administering oaths to witnesses before the Parliament;

Sections 31 to 35 - scrutiny of Bills and submission of Bills for Royal Assent; and

Sections 45 and 46 - recommending to Her Majesty the Parliament's choice of First Minister and the appointment of another member to exercise the First Minister's functions in certain circumstances.

The Standing Orders of the Parliament also provide that the Presiding Officer shall have such other functions as may be conferred upon him or her by the Parliament or by the Standing Orders.

Parliamentary Consideration

Details of Provisions

Subsection (1) requires the Parliament at its first meeting following a general election to elect from amongst its membership a Presiding Officer and two deputies. The elections have to take place after members take their oath of allegiance because the members cannot take part in any proceedings until they have done so under section 84(2). The Standing Orders of the Scottish Parliament further detail the procedure for the election of the Presiding Officer and deputies.

Subsection (2) provides for a Presiding Officer or deputy to hold office until:

a new Presiding Officer is elected;

he resigns;

he ceases to be a member otherwise than by virtue of a dissolution; or

he is removed from office by resolution of the Parliament.

In other words, the Presiding Officer and the deputies will not cease to hold office merely because of the dissolution of the Parliament before a general election. They will continue to hold office until such time as the new Parliament elects a Presiding Officer (and the deputies) under subsection (1).

Subsection (3) requires the Parliament to elect a replacement for the Presiding Officer or a deputy who ceases to hold office for any reason before dissolution of the Parliament. The Standing Orders of the Parliament make further provision in this regard.

Subsection (4) provides that the Presiding Officer's functions may be exercised by a deputy if the office is vacant or if the Presiding Officer is for any reason unable to act.

Subsection (5) empowers the Presiding Officer, subject to standing orders, to authorise any deputy to exercise functions on his behalf.

Subsection (6) enables standing orders to regulate the participation of the Presiding Officer and deputies in proceedings of the Parliament. In particular they may cover any constraints on the way in which the Presiding Officer and deputies may vote in proceedings which they chair.

Subsection (7) provides that the validity of any act of the Presiding Officer or a deputy is not affected by any defect in his election.

SECTION 20: Clerk of the Parliament

Purpose and Effect

This section provides for the appointment of a Clerk of the Parliament, who is an employee of the Scottish Parliamentary Corporate Body (SPCB). The section also provides for an Assistant Clerk to act in place of the Clerk in the event of the office being vacant or where circumstances exist preventing the Clerk from undertaking his functions. Authority is also provided for the Clerk to delegate his functions to any Assistant Clerk or other Parliamentary staff.

General

This section is linked to section 21 providing for the establishment of the Scottish Parliamentary Corporate Body (SPCB) which oversees the administration of the Parliament and represent it in legal matters. It also appoints the Clerk.

Paragraph 3(1) of Schedule 2 requires the SPCB to appoint Assistant Clerks and also allows it to appoint other staff. The Clerk and other persons appointed by the SPCB are the staff of the Parliament whose terms and conditions of appointment are determined by the SPCB - see paragraph 3(2) and (3) of that Schedule. Paragraph 5 enables the SPCB to delegate any of its functions to the Presiding Officer (elected under section 19), or to the Clerk.

The Clerk has statutory functions under sections 24 (giving notice to witnesses) and 28 (writing the date of Royal Assent on Acts of the Scottish Parliament). Other functions are conferred upon the Clerk by the Standing Orders.

Provision was made for the appointment of a Temporary Clerk for the period before a permanent appointment was made by the Scotland Act 1998 (Transitory and Transitional Provisions) (Administration of the Parliament) Order 1999 (S.I. 1999/1098).

Parliamentary Consideration

Details of Provisions

Subsection (1) establishes the office of Clerk of the Parliament. The Clerk is the senior official and plays a major role in the workings of the Parliament.

Subsection (2) provides for the Clerk to be appointed by the SPCB.

Subsections (3) and (4) provide for any Assistant Clerk appointed by the SPCB to exercise the functions of the Clerk, if the office of Clerk is vacant or the Clerk is unable to act for any reason. The Clerk also has the power to authorise any Assistant Clerk or other member of the staff of the Parliament, appointed by the SPCB, to carry out functions on his behalf.+

SECTION 21: Scottish Parliamentary Corporate Body

Purpose and Effect

This section provides for the establishment, membership and functions of the Scottish Parliamentary Corporate Body (SPCB) which oversees the administration of the Parliament and represents it in legal matters. The Parliament itself is not a body corporate and the establishment of a corporate body for it simplifies its administrative and legal arrangements. The SPCB carries out the functions conferred on it in the Scotland Act and may have additional functions conferred on it by virtue of other enactments. It carries out its functions under directions issued by the Parliament and has powers to appoint staff, hold property, and enter into contracts.

The SPCB will consist of the Presiding Officer and 4 other members of the Parliament. The detailed arrangements for the SPCB are set out in Schedule 2.

General

This section forms part of a set dealing with the administration of the Parliament including section 19 (Presiding Officer) and section 20 (Clerk of the Parliament). Detailed provisions relating to the SPCB are set out in Schedule 2.

The concept of the SPCB is based on similar arrangements in place at Westminster. The House of Commons (Administration) Act 1978 establishes the House of Commons Commission as a corporate body for the purposes of appointing staff. The Parliamentary Corporate Bodies Act 1992 establishes Corporate Officers for both the House of Commons and the House of Lords, with powers to hold property and to enter into contracts for the purposes of the respective Houses.

Parliamentary Consideration

Details of Provisions

Subsection (1) establishes the Scottish Parliamentary Corporate Body which in the Act is referred to as "the Parliamentary corporation". This subsection also provides that the SPCB is to perform the functions conferred on it under the Act or under any other enactment.

Subsection (2) provides for the membership of the SPCB to be the Presiding Officer and four members of the Parliament who are to be appointed in accordance with standing orders. Standing Orders make provision for the members to be appointed by the Presiding Officer either after an election by the Parliament or, if any of the offices is not filled after an election, by the Presiding Officer. This membership is intended to ensure close Parliamentary control of the SPCB.

Subsection (3) places a duty on the SPCB to provide or make arrangements for the Parliament to be provided with the property, staff and services which are required for the Parliament's purposes. These are the main functions of the SPCB. Further detailed provisions as to the SPCB's functions, powers, proceedings etc. are set out in Schedule 2.

Under subsection (4) the Parliament has the power to give special or general directions to the SPCB for the purposes of or in connection with the exercise of its functions.

Subsection (5) provides that any property and liabilities acquired or incurred by the Parliament and which relate to matters within the general responsibility of the SPCB, shall be treated as property or liabilities of the SPCB. By virtue of section 126(1) property includes rights and interests of any description, and so will include contractual rights. This provision may be modified by the Scottish Parliament by virtue of paragraph 4(2) of Schedule 4.

Subsection (6) provides that any expenses of the SPCB, such as staff salaries etc., are payable out of the Scottish Consolidated Fund. This provision may be modified by the Scottish Parliament by virtue of the amendment made to paragraph 4(3) of Schedule 4 by Article 3 of S.I. 2000/1831.

Subsection (7) places a duty on the SPCB to pay any fees or other sums of money it receives into the Scottish Consolidated Fund. This is subject to any provision made by or under an Act of the Scottish Parliament for the disposal of, or accounting for, such money. Such provision is now made by the Public Finance and Accountability (Scotland) Act 2000 (2000 asp 1) but, until 1 April 2000, it was made by S.I. 1999/441.

Subsection (8) gives effect to Schedule 2 which makes further provision about the SPCB.

SECTION 22: Standing orders

Purpose and Effect

This section requires the proceedings of the Scottish Parliament to be regulated by standing orders.

General

The matters which the Act requires to be dealt with in standing orders are:

the fixing of the date on which a constituency vacancy is to be treated as occurring (section 9(5));

the fixing of the date on which a regional vacancy is to be treated as occurring (section 10(7));

the appointment of four members to the Scottish Parliamentary Corporate Body (section 21(2));

regulation of the proceedings of the Parliament (section 22(1));

the form and manner of making of statements on whether a Bill is within the legislative competence of the Parliament (section 31(3));

stages of Bills (section 36(1));

reconsideration of Bills (section 36(4));

provision for final stage of Bill following its reconsideration (section 36(5));

consideration by the Parliament of financial reports and accounts laid before it (section 70(3));

who may move motions on tax-varying resolutions (section 74(5)); and

those matters which are listed in Schedule 3, namely preservation of order, the holding of proceedings in public, the reporting and publishing of proceedings, political allegiance of the Presiding Officer and deputies, committees and Bills requiring Crown consent.

The Act also mentions certain matters about which standing orders may make provision. These are:

the exercise of the Presiding Officer's functions by a deputy (section 19(5));

the participation of the Presiding Officer and his deputies in the proceedings of the Parliament (section 19(6));

power of committees or sub-committees to call for witnesses and documents (section 23(8));

administration of oath to persons giving evidence before Parliament (section 26(1));

payment of allowances and expenses to persons attending Parliament to give evidence or producing documents (section 26(4));

participation of Scottish Law Officers in the proceedings of the Parliament if they are not members (section 27(1));

publication of statements on legislative competence in relation to Bills (section 31(3));

provision for expediting proceedings in relation to a particular Bill (section 36(2));

provision for different procedures for different types of Bills (section 36(3)); and

the matters mentioned in Schedule 3, namely exclusion from proceedings of members contravening standing orders on preservation of order; withdrawal of rights and privileges of members of the Parliament; conditions of attendance of members of the public at proceedings; appointment of committees and sub-committees; and exclusion of non-members of committees and sub-committees from their proceedings.

In addition standing orders may cover such other matters as the Parliament may decide.

Before the Scotland Act was passed, the Secretary of State for Scotland established a Consultative Steering Group, consisting of various persons and representatives, including those from the four main political parties in Scotland. It reported on the working procedures of the Scottish Parliament. Its report informed the drafting of transitional standing orders in the Scotland Act 1998 (Transitory and Transitional Provisions) (Standing Orders and Parliamentary Publications) Order 1999 (S.I. 1999/1095). The form and structure of these Standing Orders were also influenced by the rules of procedures for the European Parliament. The Parliament adopted its own Standing Orders with effect from 17 December 1999 which were based largely on those in S.I. 1999/1095. They are amended from time to time by the Parliament.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that the proceedings of the Parliament are to be regulated by standing orders. "Proceedings", in relation to the Parliament, is defined in section 126(1) as including proceedings of any committee or sub-committee.

Subsection (2) gives effect to Schedule 3 which lists various matters which the standing orders must or may include.

SECTION 23: Power to call for witnesses and documents

Purpose and Effect

This section provides the Parliament with powers to require witnesses to appear before it to give evidence or to produce documents. The section provides the Parliament with an ability to scrutinize, question and investigate matters concerning any subject for which any member of the Scottish Executive has general responsibility.

General

This section should be read with sections 24, 25 and 26 which form the general package of provisions which confers upon the Parliament and its committees the necessary powers to scrutinise and investigate matters. These provisions are essential to ensure that the Scottish Parliament is able to hold the Scottish Executive and other bodies to account and to investigate and scrutinise any subject for which any member of the Scottish Executive has general responsibility. The Standing Orders of the Parliament make further provision in this regard.

On 1 November 2000, the Parliament approved a motion setting out certain principles which it commended to Committees as guidelines to be followed by them when seeking official information from the Scottish Executive and in particular exchanges between officials and Ministers on policy issues. The motion made it clear that, as part of its policy of openness, the Executive should make as much information as possible publicly available; that, while officials can provide Committees with factual information, the Committees should look to Ministers to account for the policy decisions which they have taken and that "where, exceptionally, Committees find it necessary to scrutinise exchanges between officials and Ministers on policy issues, arrangements should be made to ensure that the confidentiality of those exchanges is respected". In other words, in the exceptional case where a Committee may find it necessary to look at these exchanges, it should, rather than seeking to require their production publicly in exercise of its powers under section 23, be prepared to enter into arrangements in terms of which it can see the documents in confidence.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that the Parliament may require any person to attend its proceedings for the purpose of giving evidence or to produce documents in that person's custody or control which relate to any matters concerning "any subject for which any member of the Scottish Executive has general responsibility".

"Proceedings" includes proceedings of committees and sub-committees of the Parliament (section 126(1)) and subsection (8) sets out the conditions in which the power in subsection (1) may be exercised by a committee or sub-committee. "Document" includes anything in which information is recorded in any form (section 126(1)). The reference to "person" would include a legal person, such as a body corporate under section 25(5).

There is no definition of what is meant by "any subject for which any member of the Scottish Executive has general responsibility" but it is not limited to matters where functions have been conferred upon a member of the Scottish Executive, whether in relation to devolved or reserved matters. It would also cover matters which fall within the general policy responsibility of a member of the Scottish Executive, even where the functions may be carried out by an office holder, such as the Keeper of the Registers of Scotland.

This is the main criterion which requires to be satisfied before the Parliament can impose any requirement upon any person under this section. The other subsections all refer back to "such a requirement" under this subsection and impose additional restrictions in different circumstances.

Subsection (2) provides that the Parliament may, subject to subsection (3), only impose a requirement under subsection (1) on a person outside Scotland in connection with the discharge by him of functions of the Scottish Administration or of functions of a Scottish public authority or a cross-border public authority or Border rivers functions which concern a subject for which any member of the Scottish Executive has general responsibility.

"Scottish Administration" is defined in section 126(6)-(8); "Scottish public authority" in section 126(1); "cross-border public authority" in section 88(5) and "Border rivers functions" in section 111(4).

This would enable, for example, the Parliament to summon a member of a cross-border public authority, who resides outside Scotland, in connection with the discharge by him of the functions of that authority in relation to devolved matters in or as regards Scotland. Those functions would concern a subject for which a member of the Scottish Executive has general policy responsibility, even although that member of the Scottish Executive does not have any general policy responsibility for the cross-border public authority itself.

Subsection (3) provides that, in relation to the exercise of functions of a Minister of the Crown, the Parliament may only impose such a requirement under subsection (1) on a person who is or has been a Minister of the Crown or a person in Crown employment (e.g. one of his civil servants under the Carltona doctrine) where the exercise of that function concerns a subject for which any member of the Scottish Executive has general responsibility. This is, however, subject to subsection (4).

This would enable, for example, the Parliament to summon a Minister of the Crown (or his civil servants) in relation to the exercise of his functions in connection with the devolved functions of a cross-border public authority because those devolved functions would concern a subject for which a member of the Scottish Executive has general policy responsibility. Other examples might be where functions are exercisable by the Scottish Ministers but only with the agreement of, or after consultation with, a Minister of the Crown. This subsection would enable the Parliament to require that Minister or his civil servants to give evidence in connection with the discharge of his function, such as the reasons for giving or refusing consent or the views which he expressed upon consultation.

"Minister of the Crown" includes the Treasury - see section 126(1).

"Crown employment" is defined by reference to section 191(3) of the Employment Rights Act 1996 which defines it as "employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision."

Subsection (4) qualifies subsection (3) by providing that the Parliament may not impose such a requirement upon a Minister of the Crown or a person in Crown employment in connection with the exercise of functions which are exercisable:

(a)     by the Scottish Ministers as well as by a Minister of the Crown, such as, for example, the shared functions under sections 56 or 57(1); or

(b)     by a Minister of the Crown only with the agreement of, or after consultation with, the Scottish Ministers. Subsection (4)(b) is qualified by subsection (5).

Section 44 makes provision in relation to Scottish Ministers.

Subsection (5) provides that subsection (4)(b) does not prevent the Parliament imposing such a requirement in connection with the exercise of functions which do not relate to reserved matters.

The effect of subsections (4) and (5) is that, although a Minister of the Crown or his civil servants will not be a compellable witness in respect of the discharge of his functions merely because they are exercisable with the agreement of or after consultation with the Scottish Ministers, they will be compellable if those functions relate to devolved matters. For example, under subsection (3), it has been pointed out that a Minister of the Crown, or his civil servants, may be a compellable witness in relation to the exercise of his functions in relation to the devolved functions of a cross-border public authority. Subsection (5) ensures that this remains the position even although the Minister of the Crown is required by section 88(2) or by an order under section 89 to consult Scottish Ministers before exercising those functions.

Subsection (6) provides that the Parliament may not impose such a requirement upon a person in connection with the discharge by him of the functions of any body where all of the functions of the body relate to reserved matters. Section 126(3) makes provision for determining whether the functions of a body relate to a reserved matter.

Subsection (7) provides that the Parliament may not impose such a requirement upon a judge of any court or a member of any tribunal in connection with the discharge of by him of his functions as such a member.

"Tribunal" is defined in section 126(1) as meaning any tribunal in which legal proceedings may be brought.

Subsection (8) permits committees and sub-committees of the Parliament to exercise the power to call witnesses and documents if they are expressly authorised to do so by standing orders or otherwise. The Standing Orders of the Parliament provide a general authorisation for committees.

Subsection (9) states that a person is not obliged to answer any question or to produce any document which he would be entitled to refuse to answer or produce in court proceedings in Scotland. There are various circumstances in which the courts in Scotland recognise the right of a person to refuse to answer questions or to produce documents, such as where they may lead to self incrimination or breach legal confidentiality or where the documents were prepared for the purposes of litigation in certain circumstances, or where disclosure would be contrary to the public interest.

Subsection (10) provides that a procurator fiscal is not obliged to answer any question or produce any document concerning the operation of the criminal prosecution system in any particular case if the Lord Advocate considers that doing so might prejudice criminal proceedings in that case or would be contrary to the public interest, and he has authorised the procurator fiscal to decline to answer the question or produce the document. Section 27(3) makes provision in relation to the protection afforded to the Scottish Law Officers.

SECTION 24: Witnesses and documents: notice

Purpose and Effect

This section sets out how any requirement by the Parliament under section 23 to call for witnesses or documents is to be effected.