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CHAPTER
10:
SUBORDINATE LEGISLATION PROCEDURE
Rule 10.1 Laying of instruments
1.
Where, by virtue of any enactment, any instrument or a draft of any instrument made in the exercise of a power to make, confirm or approve subordinate legislation is required to be laid before the Scottish Parliament, the lodging of a copy of the instrument or the draft with the Clerk at any time when the office of the Clerk is open shall be treated for all purposes as being the laying of it before the Parliament.
2.
The Clerk may require the person laying the instrument or draft instrument to provide such additional copies as he or she considers necessary.
3.
Where any instrument or draft instrument is laid before the Parliament, the Clerk shall give members notice of that fact in accordance with Rule 10.9 and shall refer the instrument or draft instrument to the lead committee and to the Subordinate Legislation Committee for consideration, unless the Parliament, on a motion of the Parliamentary Bureau, decides that the instrument or draft instrument is to be considered by the Parliament.
Rule 10.2 Lead committee
1.
The lead committee is the committee within whose remit the subject matter of the instrument falls.
2.
Where the subject matter of the instrument falls within the remit of more than one committee, the Parliament may, on a motion of the Parliamentary Bureau designate one committee to be the lead committee. Copies of the instrument or draft instrument shall be sent to the other committees which may also consider the instrument or draft instrument and make any recommendations they consider necessary to the lead committee by a date specified in the business programme.
Rule 10.3 Subordinate Legislation Committee
1.
In considering the instrument or draft instrument, the Subordinate Legislation Committee shall determine whether the attention of the Parliament should be drawn to the instrument on the grounds-
(a) that it imposes a charge on the Scottish Consolidated Fund or contains provisions requiring payments to be made to that Fund or any part of the Scottish Administration or to any local or public authority in consideration of any licence or consent or of any services to be rendered, or prescribes the amount of any such charge or payment;
(b) that it is made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts, on all or certain grounds, either at all times or after the expiration of a specific period or that it contains such provisions;
(c) that it purports to have retrospective effect where the parent statute confers no express authority so to provide;
(d) that there appears to have been unjustifiable delay in the publication or in the laying of it before the Parliament;
(e) that there appears to be a doubt whether it is intra vires;
(f) that it raises a devolution issue;
(g) that it has been made by what appears to be an unusual or unexpected use of the powers conferred by the parent statute;
(h) that for any special reason its form or meaning could be clearer;
(i) that its drafting appears to be defective;
or on any other ground which does not impinge on its substance or on the policy behind it.
2.
The Committee shall report its decision with its reasons in any particular case to the Parliament and to the lead committee. It shall do so no later than 20 days after the instrument or draft instrument is laid.
Rule 10.4 Motion for annulment
1.
In the case of any instrument which is subject to annulment in pursuance of a resolution of the Parliament, any member (whether or not a member of the lead committee) may, not later than 40 days after the instrument is laid, by motion propose to the lead committee that the committee recommend that nothing further is to be done under the instrument.
2.
In addition to the provisions of Rule 12.2.2, that member and the member of the Scottish Executive or junior Scottish Minister in charge of the instrument, if not members of the lead committee, are entitled to attend the committee and participate in the proceedings for the purpose of debating the motion but may not vote. The debate on the motion shall last no more than 90 minutes.
3.
The lead committee shall report to the Parliament on the instrument setting out its recommendations, taking into account any recommendations made by any other committee. It shall do so no later than 40 days after the instrument is laid.
4.
If the lead committee makes a recommendation as mentioned in paragraph 1, the Parliamentary Bureau shall, no later than 40 days after the instrument is laid, by motion propose that nothing further is to be done under the instrument. Only the member moving the motion and the member of the Scottish Executive or junior Scottish Minister in charge of the instrument may speak in any debate on such a motion. Each such person may speak for no more than 3 minutes.
Rule 10.5 Motion that draft instrument be not made or submitted
1.
In the case of any draft instrument laid before the Parliament where the instrument may be made without the approval of the Parliament, any member (whether or not a member of the lead committee) may, no later than 40 days after the draft instrument is laid, by motion propose to the lead committee that the committee recommend that the instrument be not made (or, in the case of a draft Order in Council, be not submitted to Her Majesty in Council).
2.
In addition to the provisions of Rule 12.2.2, that member and the member of the Scottish Executive or junior Scottish Minister in charge of the draft instrument, if not members of the lead committee, are entitled to attend the committee and participate in the proceedings for the purpose of debating the motion but may not vote. The debate on the motion shall last no more than 90 minutes.
3.
The lead committee shall report to the Parliament on the draft instrument setting out its recommendations, taking into account any recommendations made by any other committee. It shall do so no later than 40 days after the instrument is laid.
4.
If the lead committee recommends that the instrument be not made or, as the case may be, be not submitted to Her Majesty in Council, the Parliamentary Bureau shall, no later than 40 days after the draft instrument is laid, by motion propose that the instrument be not made or, as the case may be, be not submitted to Her Majesty in Council. Only the member moving the motion and the member of the Scottish Executive or junior Scottish Minister in charge of the draft instrument may speak in any debate on such a motion. Each such person may speak for no more than 3 minutes.
Rule 10.6 Motion for approval
1.
In the case of any instrument or draft instrument laid before the Parliament where the instrument or draft instrument-
(a) cannot be made;
(b) cannot come into force; or
(c) cannot remain in force beyond a stated period,
unless the Parliament by resolution approves the instrument or draft, the lead committee shall decide whether to recommend that the instrument or draft instrument be approved.
2.
Any member of the Scottish Executive or junior Scottish Minister (whether or not a member of the lead committee) may by motion propose to the lead committee that the committee recommend that the instrument or draft instrument be approved.
3.
In addition to the provisions of Rule 12.2.2, that member and the member of the Scottish Executive in charge of the instrument or draft instrument, if not members of the lead committee, are entitled to attend the committee and participate in the proceedings for the purposes of debating any such motion but may not vote. The debate on the motion shall last no more than 90 minutes.
4.
The lead committee shall report to the Parliament on the draft instrument setting out its recommendations, taking into account any recommendations made by any other committee. It shall do so no later than 40 days after the instrument is laid or, in the case of an instrument falling within paragraph 1(c), by the end of the stated period.
5.
If the lead committee recommends that the draft instrument be approved, the Parliamentary Bureau shall by motion propose that the Parliament approve the instrument. Only the member moving the motion, the member of the Scottish Executive or junior Scottish Minister in charge of the draft instrument (if he or she is not the member moving the motion) and one speaker against the motion may speak in any debate on the motion. Each such person may speak for no more than 3 minutes.
Rule 10.7 Instruments considered by the Parliament
1.
Where the Parliament has decided that an instrument or draft instrument laid before the Parliament be considered by the Parliament, any member may give notice of and move the relevant motion in relation to that instrument or draft instrument, as provided for in Rule 10.4.4, 10.5.4 or 10.6.5, within any relevant time limit set by that Rule. The debate on the motion shall last no more than 90 minutes.
Rule 10.8 Withdrawal of instruments
1.
An instrument or draft instrument laid before the Parliament may be withdrawn at any time by the member of the Scottish Executive or junior Scottish Minister in charge of it.
Rule 10.9 Notice of instruments and draft instruments
1.
The Clerk shall ensure that notice of any instrument or draft instrument laid before the Parliament is published in the Business Bulletin. The notice shall give the title of the instrument or draft instrument.
Rule 10.10 Application to other documents
1.
The Rules in this Chapter shall also apply, with such modifications as are appropriate, to any report, guidance, code of practice or other document laid before the Parliament which is subject to any form of Parliamentary control having the same or equivalent effect to those mentioned in Rules 10.4.1, 10.5.1 or 10.6.1.
Rule 10.11 Calculation of days
1.
In calculating for the purposes of this Chapter any period of 20 days or 40 days, no account shall be taken of any time during which the Parliament is dissolved or is in recess for more than 4 days.
CHAPTER
11:
DECISIONS AND VOTING
Rule 11.1 Decisions of the Parliament
1.
All decisions of the Parliament shall be taken by resolution.
2.
A matter requiring a decision of the Parliament shall be decided by a question being put to a meeting of the Parliament by the Presiding Officer on the motion of a member. The question shall be that the motion is agreed to.
3.
Where any question requires to be put to the Parliament, it shall be put in accordance with Rules 11.2 to 11.4.
Rule 11.2 Decision Time
1.
Except as provided in Rule 11.3, the Presiding Officer shall put any question in relation to a motion during Decision Time on the day on which the motion is moved.
2.
Decision Time is the period which normally begins at 17:00 where a meeting of the Parliament is held on Monday, Tuesday, Wednesday or Thursday and at 12:00 where a meeting of the Parliament is held on Friday and which ends when every decision which is to be taken during Decision Time has been taken.
3.
Normally, Decision Time shall end not later than 30 minutes after it begins but, in accordance with Rule 2.2.4(a), it may continue, in order to complete any voting which is not adjourned to a later meeting under paragraph 5.
4.
The Parliament may, on a motion of the Parliamentary Bureau, decide that Decision Time on a particular day or days shall begin at a time other than that mentioned in paragraph 2.
5.
The Parliament may, on a motion of any member moved without notice not more than 30 minutes after the beginning of Decision Time, decide that decisions which have not been taken by the time the motion is moved are to be taken at a later meeting of the Parliament. Members shall be notified of the day and time when such decisions are to be taken.
6.
Where-
(a) a motion is listed on the daily business list for consideration before Decision Time; but
(b) that motion has not been moved before Decision Time begins,
the Presiding Officer may allow the motion, and any amendment to it, to be moved at the beginning of Decision Time.
Rule 11.3 Decisions at times other than Decision Time
1.
In the following cases the Presiding Officer shall, subject to paragraph 3, put the question immediately after he or she has closed the debate on the motion in relation to that question or, if there is no debate on the motion, immediately after the motion is moved-
(a) a motion seeking the agreement of the Parliament to the First Minister's recommendation for the appointment of a person as Lord Advocate or Solicitor General for Scotland under Rule 4.3 or for the removal of a person as Lord Advocate or Solicitor General for Scotland under Rule 4.4;
(b) a motion seeking the agreement of the Parliament that a person be appointed a Minister under Rule 4.6 or a junior Scottish Minister under Rule 4.7;
(c) a business motion;
(d) a motion for the closure of a debate;
(e) a motion for the adjournment of a debate;
(f) a motion under Rule 9.6.5;
(g) a motion under Rule 9.8.5 or 9.8.6;
(h) a motion in relation to an Emergency Bill;
(i) a motion for the exclusion of a member;
(j) a motion for the adjournment or closure of a meeting of the Parliament; and
(k) a motion on Members' Business.
2.
The Presiding Officer shall put the question on an amendment to a Bill immediately after the debate on that amendment or, if there is no debate, immediately after the amendment is moved.
3.
Decisions may, at the discretion of the Presiding Officer, be taken at a time other than Decision Time or the times mentioned in paragraphs 1 and 2. Members shall be notified of any such time.
Rule 11.4 Order in which questions are put
1.
At Decision Time or any alternative time mentioned in Rule 11.3, questions on motions shall be put in the order in which the motions were moved.
2.
Questions on amendments to a motion shall be put in the order in which those amendments were moved. The Presiding Officer shall, before putting the question under paragraph 1, put, in turn, each question that an amendment to the motion be agreed to.
3.
If any member disagrees with the question put under paragraph 1 or 2, there shall immediately be a division.
4.
The provisions of this Rule shall apply to amendments to amendments with such modifications as are appropriate.
Rule 11.5 Right to vote
1.
Only members have a right to vote at a meeting of the Parliament. A member is not obliged to vote.
2.
A member shall vote only in person and shall not vote on behalf of any other member.
3.
A member may vote although he or she did not hear the question put.
4.
A member shall vote only once on any question.
5.
Except in the case of a vote of an election or a selection process under Rule 11.9 or 11.10 the Presiding Officer shall exercise a casting vote in the event of a tie in any vote at a meeting of the Parliament, but he or she shall not otherwise vote in the Parliament.
Rule 11.6 Divisions
1.
A division shall be held where it is required by Rule 11.4.3 and shall be conducted in accordance with the following provisions.
2.
The Presiding Officer shall repeat the question. The Presiding Officer shall then ask members to vote within a specified period of time.
3.
Once the Presiding Officer has repeated the question, no-one except the Presiding Officer may speak until the Presiding Officer has declared that the specified period of time has ended.
4.
Points of order concerning the validity of the division may be raised only after the Presiding Officer has declared that the specified period of time has ended.
5.
The Presiding Officer shall establish the numerical result of the division and shall announce the numbers of votes for and against and the number of votes to abstain.
6.
In the event of a tie, the Presiding Officer shall exercise his or her casting vote.
Rule 11.7 Manner of voting
1.
Normally members shall vote at a meeting of the Parliament using the electronic voting system.
2.
If it appears to the Presiding Officer that the electronic voting system cannot be used for any reason or that it has produced an unreliable result, a roll call vote, or a vote in accordance with such other manner of voting as the Presiding Officer may decide, shall be held.
3.
In a roll call vote, the roll shall be called in alphabetical order. Voting shall be by word of mouth and shall be expressed by "Yes", "No" or "Abstain".
Rule 11.8 Committees
1.
Subject to paragraph 2, the convener of a committee or sub-committee shall determine the time at which members shall take a decision on any item of business.
2.
The convener shall put the question on an amendment to a Bill immediately after the debate on that amendment or, if there is no debate, immediately after the amendment is moved.
3.
Except as provided in any direction given to a committee by the Parliament, members of a committee or sub-committee shall vote by show of hands unless, before they do so, a member of the committee or sub-committee requests a roll call vote, as described in Rule 11.7.3, and the convener agrees to that request.
4.
Rule 11.5 applies where members vote in a committee or sub-committee except that-
(a) only members of the committee or sub-committee may vote in that committee or sub-committee, as the case may be; and
(b) the convener of a committee or sub-committee may vote and shall also exercise a casting vote in the event of a tie.
5.
Rules 11.4 and 11.11 shall apply to the taking of decisions at meetings of committees and sub-committees as they apply to the taking of decisions at meetings of the Parliament, with such modifications as are appropriate.
Rule 11.9 Election of Presiding Officer and deputy Presiding Officers
1.
This Rule applies to any election of the Presiding Officer or any deputy Presiding Officer to be held by virtue of Rule 3.2 or 3.3.
2.
The vote at an election shall be by secret ballot and shall be held during the voting period appointed under Rule 3.2 or 3.3. Where there is more than one candidate, there may be more than one round of voting in accordance with paragraphs 7 to 12.
3.
The result of any vote under this Rule is valid only if the number of members who voted is more than one quarter of the total number of seats for members. For this purpose, in calculating the number of members who voted-
(a) account shall be taken not only of those voting for or against a candidate, but also of those voting to abstain; and
(b) where there is more than one round of voting the result of each round of voting shall be treated as a separate result and the number of members who voted shall be taken to be the total number who voted in that round.
If the result of any vote at an election is invalid under this Rule, no candidate shall be elected at that election.
4.
Each candidate may appoint a member to act as a scrutineer on his or her behalf. Each scrutineer may monitor the counting of votes by the Clerk and may request the Clerk to perform a count again. The Clerk may refuse such a request only if he or she considers it unreasonable.
5.
Any member may, at the beginning of a round of voting, obtain a ballot paper from the Clerk. Any member who obtains a ballot paper shall immediately mark his or her vote on that ballot paper and then put the ballot paper in the ballot box provided for that purpose by the Clerk. That member may not thereafter obtain another ballot paper or vote during that round of voting.
6.
Where there is only one candidate in a round of voting, a member may vote for or against that candidate or to abstain. At the completion of that round of voting the Clerk shall count the votes and inform the person chairing the meeting of the number of votes for the candidate, against the candidate or to abstain. The candidate shall be elected if he or she obtains a simple majority of votes in his or her favour.
7.
Where there is more than one candidate in a round of voting, a member may vote for one of those candidates or to abstain. At the completion of each round of voting in which there is more than one candidate, the Clerk shall count the votes and inform the person chairing the meeting of the number of votes for each candidate and the number of votes to abstain.
8.
Where there are two candidates in a round of voting, a candidate shall be elected if he or she obtains a simple majority of votes in his or her favour.
9.
Where there are more than 2 candidates in a round of voting and the number of votes for one candidate exceeds the total number of votes for all the other candidates, that candidate shall be elected.
10.
Where there are more than 2 candidates in a round of voting but no candidate is elected under paragraph 9, the candidate or candidates with the smallest number of votes shall be eliminated and there shall then be a further round or rounds of voting until-
(a) a candidate is elected in accordance with paragraphs 6, 8 or 9;
(b) paragraph 11 applies; or
(c) the result of any vote is invalid under this Rule.
11.
Where in any round of voting the candidates all receive the same number of votes no candidate shall be elected at that election.
12.
A candidate may withdraw his or her candidature at any stage between the rounds of voting mentioned in paragraphs 7 to 10.
13.
In counting the votes, the Clerk may disregard any ballot paper if, in his or her opinion, it does not clearly indicate the voter's choice.
14.
When a candidate has been elected in accordance with this Rule the person chairing the meeting shall announce the name of the candidate who has been elected. He or she shall also announce-
(a) after the count in a case where the provisions of paragraph 6 apply, the number of votes for and against the candidate and the number of votes to abstain; and
(b) after the count in any other case, the number of votes for each candidate, the number of votes to abstain and the name of any candidate who has been eliminated at that round.
15.
Where no candidate is elected at an election held in accordance with this Rule, the person chairing the meeting shall announce that fact and arrange for another election to be held as soon as possible. The Clerk shall notify members of the day and time appointed for the voting period at that election.
16.
Following a declaration that a candidate has been elected or that no candidate has been elected, the Clerk shall destroy all the ballot papers.
Rule 11.10 Election of members of Parliamentary corporation and selection of First Minister
1.
This Rule applies to-
(a) the election of members of the Parliamentary corporation to be held by virtue of Rule 3.7; and
(b) the selection of a nominee for appointment as First Minister to be held by virtue of Rule 4.1 ("the selection process").
Where this Rule applies, the procedure for the election or selection process shall be as follows.
2.
Voting under this Rule shall be held using the electronic voting system and shall be held during the voting period appointed under Rule 3.7 or 4.1. If it appears to the Presiding Officer that the electronic voting system cannot be used for any reason or that it has produced an unreliable result, a paper ballot of members, a roll call vote, or a vote in accordance with such other manner of voting as the Presiding Officer may decide, shall be held. Where there is more than one candidate, there may be more than one round of voting in accordance with paragraphs 6 to 11.
3.
A member may only vote once in a round of voting.
4.
The result of any vote under this Rule is valid only if the number of members who voted is more than one quarter of the total number of seats for members. For this purpose, in calculating the number of members who voted-
(a) account shall be taken not only of those voting for or against a candidate, but also of those voting to abstain; and
(b) where there is more than one round of voting the result of each round of voting shall be treated as a separate result and the number of members who voted shall be taken to be the total number who voted in that round.
If the result of any vote at an election or selection process is invalid under this Rule, no candidate shall be elected at that election or selected at that selection process.
5.
Where there is only one candidate in a round of voting, a member may vote for or against that candidate or to abstain. At the completion of that round of voting, the Presiding Officer shall establish the number of votes for the candidate, against the candidate or to abstain. The candidate shall be elected or selected if he or she obtains a simple majority of votes in his or her favour.
6.
Where there is more than one candidate in a round of voting, a member may vote in accordance with the following procedure-
(a) the Presiding Officer shall read out the names of all the candidates;
(b) he or she shall then read out the name of each candidate in turn, in alphabetical order;
(c) after each name is read out, those members who wish to vote for that candidate shall cast their votes;
(d) when the votes for the last candidate have been cast, members shall be given an opportunity to vote to abstain.
At the completion of each round of voting in which there is more than one candidate, the Presiding Officer shall establish the number of votes for each candidate and the number of votes to abstain.
7.
Where there are 2 candidates in a round of voting, a candidate shall be elected or selected if he or she obtains a simple majority of votes in his or her favour.
8.
Where there are more than 2 candidates in a round of voting and the number of votes for one candidate exceeds the total number of votes for all the other candidates, that candidate shall be elected or selected.
9.
Where there are more than 2 candidates in any round of voting but no candidate is elected under paragraph 8, the candidate or candidates with the smallest number of votes shall be eliminated and there shall then be a further round or rounds of voting until-
(a) a candidate is elected or selected in accordance with paragraphs 5, 7 or 8;
(b) paragraph 10 applies; or
(c) the result of any vote is invalid under this Rule.
10.
Where in any round of voting the candidates all receive the same number of votes no candidate shall be elected at that election or selected at that selection process.
11.
A candidate may withdraw his or her candidature at any stage between the rounds of voting mentioned in paragraphs 6 to 10.
12.
When a candidate has been elected or selected in accordance with this Rule the person chairing the meeting shall announce the name of the candidate who has been elected or selected. He or she shall also announce-
(a) in a case where the provisions of paragraph 5 apply, the number of votes for and against the candidate and the number of votes to abstain; and
(b) in any other case, the number of votes for each candidate and the name of any candidate who has been eliminated at that round.
13.
Where no candidate is elected at an election or selected at a selection process held in accordance with this Rule, the Presiding Officer shall announce that fact and arrange for another election or selection process to be held as soon as possible. The Clerk shall notify members of the day and time appointed for the voting period at that election or selection process.
Rule 11.11 Simple and absolute majority
1.
Any decision of the Parliament shall be taken by a simple majority unless otherwise expressly stated in any enactment or in these Rules.
2.
A simple majority means that the number of members voting for a proposition is more than the number of members voting against that proposition. No account shall be taken of any members who vote to abstain.
3.
An absolute majority means that the number of members voting for a proposition is more than half of the total number of seats for members of the Parliament or, in the case of a committee or sub-committee, more than half of the number of members of that committee or sub-committee.
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