SECTION 36: Stages of Bills

Purpose and Effect

This section requires the standing orders to make provision for the various stages which a Bill will normally go through in the Parliament. Different procedures may, however, be made for certain different kinds of Bills. They must also provide for the reconsideration of a Bill after it has been passed in certain limited circumstances.

Parliamentary Consideration

Details of Provisions

Subsection (1) requires the standing orders to make provision for 3 stages which a Bill must normally go through in the Parliament, namely:

(a)     a general debate on it with an opportunity to vote on its general principles;

(b)     a detailed consideration of it, with an opportunity to vote on its details; and

(c)     a final stage at which it can be passed or rejected.

The Standing Orders of the Parliament provide for these three stages. Although these three stages are similar to the procedures which a Bill has to go through in each House at Westminster, the procedures leading up to a Stage One debate in the Scottish Parliament are, in particular, markedly different. They involve a report on the Bill by the relevant Committee, usually after evidence has been taken upon the Bill from the Scottish Executive and interested groups and individuals.

Subsection (2) provides that subsection (1) does not prevent standing orders making provision to enable the Parliament to expedite proceedings in relation to a particular Bill. This provision is necessary to ensure that, for example, emergency legislation can be adequately dealt with. The Standing Orders of the Parliament make provision for an expedited procedure for those Executive Bills which are Emergency Bills. This procedure was used in respect of the Mental Health (Public Safety and Appeals etc.) (Scotland) Act 1999 (asp 1) and the Erskine Bridge Tolls Act 2001 (asp 12).

Subsection (3) allows the standing orders to make different provision from that required under subsection (1) for certain different kinds of Bills, namely Bills which restate the law, Bills which repeal spent enactments and private Bills. The Standing Orders have made provision for different procedures.

Subsection (4) requires the standing orders to provide for the reconsideration of a Bill passed by the Parliament if (and only if):

(a)     the Judicial Committee decide that the Bill or any provision of it is outside the legislative competence of the Parliament;

(b)     the Judicial Committee refers the Bill to the ECJ for a preliminary ruling and the reference to the Judicial Committee by the Law Officers in relation to the Bill under section 33 is withdrawn following a request for withdrawal of the reference under section 34(2)(b); or

(c)     the Secretary of State has made an order in relation to the Bill under section 35 prohibiting the Presiding Officer from submitting it for Royal Assent.

Subsection (5) requires the standing orders to ensure that any Bill amended on reconsideration is subject to a final stage where it can be approved or rejected.

Subsection (6) ensures other provisions in the Bill which refer to a Bill being passed are read, in cases where the Bill has been amended on reconsideration, as references to the Bill being approved. The references are in section 28(2) (when Bills become Acts), section 36(4) (reconsideration after passing), section 38(1)(a) (Letters Patent signifying Royal Assent to a Bill passed by the Parliament), and paragraph 7 of Schedule 3 (Crown consent before passing).

SECTION 37: Acts of Union

Purpose and Effect

This section provides that the Acts of Union are to have effect subject to the provisions of the Scotland Act.

General

This section seeks to ensure that nothing in the Act, or anything authorised by the Act, such as the provisions authorising the Scottish Parliament to make laws, could be challenged on the grounds that it is contrary to the Acts of Union.

The Acts of Union were passed by the Scottish Parliament and the English Parliament and gave effect to the Treaty of Union between Scotland and England and Wales.

This section is intended to make it clear that it is Parliament's intention that, in so far as there may be any inconsistencies between the Acts of Union and provisions in this Act, including anything authorised by the Act, the Acts of Union are to have effect subject to what is in, or authorised by, this Act.

There are, however, various provisions in the Scotland Act which prevent the Scottish Parliament from modifying certain matters mentioned in the Acts of Union. Paragraph 1(2)(a) of Schedule 4 prevents the Parliament from modifying Articles 4 and 6 of the Acts of Union "so far as they relate to freedom of trade". Article 4 provides in part that "all the subjects of the United Kingdom of Great Britain shall from and after the Union have full freedom and intercourse of trade and navigation to and from any port or place within the United Kingdom.."

In addition, paragraph 4(1) of Schedule 4 has the effect of preventing the Parliament from amending the Scotland Act, including references in that Act to the Court of Session or the High Court (such as section 95 or Schedule 6) but, by virtue of paragraph 9 of that Schedule, the Parliament could change the titles of these courts and of the judges in them.

SECTION 38: Letters Patent and proclamations

Purpose and Effect

This section makes further provision in relation to Letters Patent signifying Royal Assent to Bills of the Scottish Parliament and in relation to royal proclamations dissolving the Parliament and providing for elections to be held. It also makes provision for a Wafer Scottish Seal and for it to be used instead of the Scottish Seal itself.

General

Section 28 provides for Bills of the Scottish Parliament to become Acts when they have received Royal Assent. Royal Assent is given by recording in the Register of the Great Seal Letters Patent under the Scottish Seal signed with Her Majesty's own hand signifying Her Assent to the Bill. Sections 2(5) and 3(2) provide for dissolution of the Scottish Parliament and the fixing of dates for election by royal proclamation under the Scottish Seal.

Letters Patent and proclamations for similar purposes in relation to the UK Parliament and the elections to that Parliament pass under the Great Seal of the United Kingdom. However, in relation to the Scottish Parliament and elections to that Parliament it was considered more appropriate that they should pass under the Scottish Seal. All documents passed under the Scottish Seal are recorded in the Register of the Great Seal.

Section 45(7) provides that the First Minister is to be the Keeper of the Scottish Seal and, by virtue of paragraph 5 of Part I of Schedule 5, it is within the competence of the Scottish Parliament to make provision as to the use of the Scottish Seal.

Section 38 also makes provision for a Wafer Scottish Seal to be used in place of the Scottish Seal. This is because the Scottish Seal would have to be affixed as wax pendant attached by a ribbon, which is a cumbersome and expensive process, for every Letters Patent signifying Her Majesty's Assent to a Bill or every Royal proclamation. In terms of the Wafer Scottish Seal Directions 1999 (S.S.I. 1999/130), made under this section, the Wafer Scottish Seal takes the form of an embossment on a die. The provision made by this section and these directions is similar to that made for a Wafer Great Seal (of the United Kingdom) by the Great Seal Act 1884.

Parliamentary Consideration

Details of Provisions

Subsection (1) requires the Keeper of the Registers of Scotland to record in the Register of the Great Seal all Letters Patent signed by Her Majesty signifying Royal Assent to Bills passed by the Parliament and all royal proclamations providing for the dissolution of the Parliament and the holding of elections which have passed under the Scottish Seal.

Subsection (2) requires the Keeper to intimate to the Clerk of the Scottish Parliament the date of the recording of Letters Patent. Section 28(3) provides that the date of recording in the Register is the date of Royal Assent and section 28(4) requires the Clerk to endorse this date on the Act of the Scottish Parliament in question.

Subsection (3) provides for more detailed provision as to the preparation and publication of such Letters Patent and proclamations to be set out in an Order in Council. The Scottish Parliament (Letters Patent and Proclamations) Order makes this provision (S.I. 1999/737).

Subsection (4) allows for impressions of the Scottish Seal to be made, the exact details of size and material being specified in a direction made by the First Minister. The Wafer Scottish Seal Directions 1999 (S.S.I. 1999/130) were made by the First Minister on 19 October 1999.

Subsection (5) states that each impression provided for in subsection (4) is to be known as a Wafer Scottish Seal and shall be kept in accordance with directions made by the First Minister.

Subsection (6) states that if a Wafer Scottish Seal is used on any Letters Patent signifying Royal Assent to Bills of the Scottish Parliament or any royal proclamation dissolving the Parliament and providing for elections then that document has the same validity as if it had passed under the Scottish Seal.

SECTION 39: Members' interests

Purpose and Effect

This section requires the Parliament to make "provision" by or under an Act of the Scottish Parliament for the registration and declaration of members' interests and for the rules which members must comply with when taking part in proceedings of the Parliament. This provision must also prohibit members from advocating any matter on behalf of a person by specified means, or urging other members to do so, in return for payment or benefit. The section also creates a criminal offence where a member is found to be guilty of contravening those provisions. The provisions of this section will apply to the Scottish Law Officers even if they are not members of the Parliament. The section sets out the minimum requirements for the provisions.

General

This section imposes a statutory duty upon the Scottish Parliament to make provision by or under an Act of the Scottish Parliament about members' interests. This is in addition to the provision about corrupt practices which is made by section 43.

Until the Parliament makes such provision, transitional provision is made by the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 (S.I. 1999/1350). In Whaley v Lord Watson of Invergowrie 2000 SLT 475, a petition was brought by persons who had a financial interest in hunting seeking an interdict to prevent Lord Watson from introducing a Bill to ban hunting on the grounds that this would infringe a provision in that Order. The Court of Session held that the Order did not give rise to rights which could be enforced by members of the public.

A Code of Conduct for Members was agreed to by the Parliament in February 2000.

Parliamentary Consideration

Details of Provisions

Subsection (1) requires provision to be made for the establishment of a register of members' interests which is to be published and made available for public inspection.

Subsection (2) requires provision to be made to require a member with a financial interest to register it in the register and to declare a financial interest before taking part in any proceedings of the Parliament relating to that matter. Apart from the fact that it is indicated that financial interest includes benefits in kind, what is meant by financial interest for either of these purposes is left to the Parliament to define.

Subsection (3) requires the provision made under sub-section (2) about members' interests to include any provision which the Parliament considers appropriate to prevent a member with a financial interest for either of the purposes mentioned in subsection (2) from taking part in proceedings of the Parliament which relate to that matter or to restrict his participation in such proceedings.

Subsection (4) requires provision to be made to prohibit a member from advocating or initiating any cause or matter on behalf of another person, by any means specified in the provision, in consideration of any payment or benefit in kind of a description so specified. It also requires the Parliament to prohibit members from urging other members, in consideration for payment or benefit in kind, to advocate or initiate any cause or matter on behalf of any person by any such means.

Subsection (5) requires the provisions to include such provision as the Parliament considers appropriate to exclude any member who fails to comply with or contravenes the provision made under subsections (1) to (4) from proceedings of the Parliament.

Subsection (6) creates a criminal offence if a member takes part in proceedings without having registered a financial interest or declared a financial interest, in contravention of the provisions made under subsection (2) and (3) or the provisions made under subsection (4).

Subsection (7) provides that a person found guilty of such an offence will be liable to a fine not exceeding level 5 on the standard scale.

Subsection (8) defines "provision" as meaning provision made by or under an Act of the Scottish Parliament and ensures that the section applies to the Lord Advocate and the Solicitor General for Scotland whether or not they are members of the Parliament.

SECTION 40: Proceedings by or against the Parliament etc.

Purpose and Effect

This section makes provision as to how legal proceedings are brought by or against the Parliament or its officers and staff but prevents any coercive order being granted against the Parliament, whether directly or indirectly.

General

Apart from the protection from defamation in section 41, there is no general provision which seeks to exclude judicial proceedings being brought against the Parliament or any MSP in respect of anything said or done in the Parliament. There is nothing similar to the privilege conferred upon the Westminster Parliament by Article 9 of the Bill of Rights Act 1688 which confers upon "proceedings in Parliament" protection from being "impeached or questioned" in any "court or place out of Parliament".

Against this background, this section makes provision as to how legal proceedings may be taken by or brought against the Parliament. Instead of protecting the Parliament or its proceedings by preventing such judicial proceedings from being brought, this section restricts the remedies which may be granted directly or indirectly against the Parliament. It prevents coercive orders being granted by the Parliament which would require it to do something or prevent it from doing something on the grounds that this could interfere unduly with the proceedings of the Parliament. Instead, it will be open to the courts to make a declarator and it would then be for the Parliament to decide how it should react.

Similar protection is also provided for MSPs, the Presiding Officer and his deputies, the SPCB and staff of the Parliament if the effect of making an order would be to give relief against the Parliament. This is intended to prevent the protection for the Parliament being circumvented by taking action instead against individual members or office-holders. This follows the same approach as is taken in civil proceedings against the Crown in section 21 of the Crown Proceedings Act 1947 (c.44).

It is possible for the Parliament to modify sections 40-43 and to make its own provision about such protections - see paragraph 4(2) of Schedule 4.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that the Scottish Parliamentary Corporate Body (the Parliamentary corporation) is the body which represents the Scottish Parliament in all legal proceedings by or against the Parliament. As the Parliament is an unincorporated association consisting of all its members, it was thought that it would be more practical and convenient if legal proceedings were brought by or against the SPCB on behalf of the Parliament. The SPCB is in many respects the legal persona of the Parliament and, in any event, the property rights and liabilities of the Parliament, which are likely to give rise to most of the legal proceedings against the Parliament, are treated as those of the SPCB - see section 21(5).

Subsection (2) provides that any legal proceedings by or against the Presiding Officer or a deputy or any member of staff of the Parliament should be brought by or against the SPCB on his behalf. Provision is made for this in case proceedings are brought by or against the Presiding Officer or a member of the Parliament's staff, such as the Clerk, in his official capacity. It is not thought that it would apply where, for example, a member of the staff may be bringing an action in a personal capacity against the SPCB arising out of his contract for employment with the SPCB.

Subsection (3) provides for the remedies a court may take against the Parliament. A court will not be able to make an order for suspension, interdict, reduction or specific performance or other like order (including an interim order) but may make a declarator. This is similar to what is provided in section 21(1)(a), as read with section 47, of the Crown Proceedings Act 1947 except that it refers expressly to suspensions and to other like orders. Subsection (5) makes it clear that references to an order include an interim order.

Subsection (4) extends the protection given to the Parliament by similarly restricting the remedies which may be granted in legal proceedings against an MSP, the Presiding Officer and his deputies, the SPCB and staff of the Parliament if the effect of making such an order would be to give relief against the Parliament. This is intended to prevent the protection for the Parliament being circumvented by taking action instead against individual members or office-holders. This is similar to what is provided in section 21(2) of the Crown Proceedings Act 1947.

The effect of this subsection was considered by the Court of Session in Whaley v Lord Watson of Invergowrie 2000 SLT 475 where it was held that it did not prevent an interdict being granted against a MSP from introducing a Bill on the grounds that he would thereby be breaching some provision of the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 (S.I. 1999/1350). As the Lord President stated at page 482:

.. the subsection does not bar a remedy against a member simply because it may have some consequential effects on the working of the Parliament: the bar applies only where the interdict against the member would have the effect of granting relief, i.e. a legal remedy, against the Parliament.

Subsection (5) makes it clear that references to an order include an interim order.

SECTION 41: Defamatory statements

Purpose and Effect

This section confers absolute privilege for the purposes of the law of defamation on any statement made in the proceedings of the Parliament and on the publication of any statement under the authority of the Parliament.

General

This section is concerned with the proceedings of the Parliament and is intended to ensure that members are free to debate and the Parliament is free to report on matters of public interest without fear of an action for defamation being raised. The privilege of freedom of speech is part of the law and custom of the Westminster Parliament. It is also reflected in Article 9 of the Bill of Rights Act 1688 which confers on "proceedings in Parliament" protection from being "impeached or questioned" in any court.

No similar privilege is conferred upon proceedings in the Scottish Parliament - see the note on section 40. However, this section and section 42 protect statements made in such proceedings and their publication against proceedings for defamation and contempt of court.

It is possible for the Parliament to modify sections 40-43 and to make its own provision about such protections under paragraph 4(2) of Schedule 4.

There are other provisions which make provision in relation to defamation. For example the amendments made to the Defamation Act 1952 by paragraphs 10 and 11 of Schedule 8 make provision in relation to defamation at elections, and amendments to the Public Order Act 1986 by paragraph 24 of that Schedule make provision in relation to reports of parliamentary proceedings.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that for the purposes of the law of defamation any statement made in the proceedings of the Parliament and the publication under the authority of the Parliament of any statement is absolutely privileged. It applies for the purposes of the law of defamation in any part of the UK by virtue of the fact that the Act generally extends throughout UK (see section 131).

Subsection (1)(a) confers absolute privilege upon any statement made in the proceedings of the Parliament. The expression "statement" is defined in subsection (2).

The expression "proceedings in the Parliament" is defined in section 126(1) to include proceedings of any committee or sub-committee. It is not otherwise defined. It is intended that it should be construed in a similar way as "proceedings in Parliament" has been construed for the purposes of Article 9 of the Bill of Rights Act 1688 - see H.L. Deb 28 July 1998 vol 592 cols 1447 - 1448.

Subsection (1)(b) confers absolute privilege upon the publication under the authority of the Parliament of any statement.

The Standing Orders of the Parliament provide that "Any statement which is required or authorised to be published in pursuance of these Rules is published under the authority of the Parliament". This would cover the publication of the minutes of proceedings, the Official Report and the Journal which are required to be published under Standing Orders and the broadcasting of proceedings which may be authorised under Standing Orders. It would also include the publication of any report or other document which is laid before the Parliament and which the Clerk is required by the Parliament to publish under Standing Orders.

Subsection (2) provides that "statement" for the purposes of this section has the same meaning as in the Defamation Act 1996 (c.31). Section 17 of the 1996 Act defines it as meaning "words, pictures, visual images, gestures or any other method of signifying meaning". This expression would therefore cover any oral and written statements, motions, papers etc which are made "in proceedings of the Parliament" and the publication of them in the official report of proceedings of the Parliament. It would also cover live radio or television broadcasts and extracts of such broadcasts published with the authority of the Parliament.

SECTION 42: Contempt of Court

Purpose and Effect

This section disapplies the rule of strict liability for contempt of court in relation to publications made in, or in reports of, proceedings of the Scottish Parliament in relation to a Bill or subordinate legislation.

General

The proceedings of the Scottish Parliament, unlike those of Westminster, are subject to the law of contempt of court. No express provision is needed for this because the law of contempt of court and particularly the strict liability rule in the Contempt of Court Act 1981 will apply automatically unless expressly disapplied.

The strict liability rule is defined by section 1 of the Contempt of Court Act 1981 as that whereby conduct may be treated as a contempt of court regardless of intent to interfere with the course of justice in particular legal proceedings. In terms of section 2 of that Act the rule only applies to a publication which creates a substantial risk that the course of justice in active legal proceedings will be seriously impeded or prejudiced. Section 5 of the Act provides that the rule does not apply to publications made during a discussion in good faith of public affairs if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.

Paragraph 1 of Schedule 3 requires standing orders to include provision "for preventing conduct which would constitute .. a contempt of court" and a sub judice rule. This is contained in the Standing Orders of the Parliament.

The present section is intended to ensure that the Scottish Parliament is not prevented from legislating on any matter simply because anything said or done in the proceedings for the purposes of considering a Bill or subordinate legislation might be treated as a contempt of court under the "strict liability rule".

This section forms part of a group of sections which afford some protection to proceedings in the Parliament. It is possible for the Parliament to modify sections 40-43 and to make its own provision about such protections - see paragraph 4(2) of Schedule 4.

Parliamentary Consideration

Details of Provisions

Subsection (1) provides that the strict liability rule shall not apply to any publication:

(a)     made in the proceedings of the Scottish Parliament in relation to a Bill or subordinate legislation; or

(b)     to the extent that it consists of a fair and accurate report of such proceedings made in good faith.

Subsection (1)(a) is necessary to ensure that the Scottish Parliament is able to consider and pass legislation about any matter even if that matter may be the subject of proceedings before a court which are active. Subsection (1)(b) is designed to protect those who report such proceedings in good faith.

The note on section 41 sets out what is meant by proceedings in the Parliament.

Subsection (2) provides that the "strict liability rule" and "publication" have the same meanings as in the Contempt of Court Act 1981. Section 1 of that Act states that "the strict liability rule means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so". Section 2 of the 1981 Act states that for the purposes of the rule, "publication" includes any speech, writing, programme in a cable programme service, or other communication in whatever form, which is addressed to the public at large or any section of the public.