The Scottish Parliament’s bill process and the Hate Crime and Public Order (Scotland) Bill

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This is a post setting out how the Scottish Parliament handles government bills, and what that means for the Hate Crime and Public Order (Scotland) Bill.

A Bill is the draft form of an act of parliament. An Act of the Scottish Parliament is “primary legislation” and covered by the parliament’s primary legislation procedures, available in full here. Primary legislation is subject to several stages of scrutiny and can be changed as it goes through the parliament. Secondary legislation is the name for legislation that is easier to make (regulations, orders) because it is not subject to such intense scrutiny.

Stage 1
The process starts when the government lays a Bill in front of the parliament. It has to provide accompanying documents explaining what the Bill does (the explanatory memorandum), why it thinks it is needed (the policy memorandum), what it is likely to cost (the financial memorandum) and why it needs any new powers in the Bill to make secondary legislation (the delegated powers memorandum). The government did this for the Hate Crime and Public Order (Scotland) Bill on 23 April. All the documents it provided are here.

The parliament then agrees which committee will be in charge of examining the Bill in detail (the “lead committee”). For this bill, the Justice Committee is doing this: details of the Committee are here. All its activity on this Bill is summarised here: this is the most useful page to bookmark if you are interested in following the Bill, as it should gather together all the relevant material, although this new page for the Bill is also worth saving (the parliament’s website is currently being reorganised). At a meeting on 18 August, Committee members agreed “To issue a news release/public statement on their approach to and timetabling of consideration of this Bill,including the publication of written submissions of evidence.” We have not yet been able to find this, but will add it when we do.

The Justice Committee normally meets on Tuesday mornings, generally weekly for around two and a half hours, although meetings may last longer. It will work on this Bill alongside its other business. Its current work programme also includes the Defamation and Malicious Publications (Scotland) Bill (also at Stage 1, with the second oral evidence session held on 25 August 2020) and scrutiny of the actions of the Scottish Government, and the wider civil, criminal justice and prosecution system in Scotland in responding to the Coronavirus/Covid-19. The second of these looks likely to be a substantial bit of work: some of the detailed of issues are listed here. The Committee has also noted that other legislation may also still be brought forward, dealing with the impact of the COVID on the courts and on domestic abuse protection orders.

The lead Committee invites the public to comment on the bill. The Justice Committee did this on 4 May. The deadline for responding was 24 July.

The responses to that invitation are posted on the Committee’s website. This has not yet happened for this Bill, although individual responses have been published by some organisations. The most recent Bill legislating in this area (the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill) received around 300 submissions at this stage.

The Scottish Parliament Information and Research Centre (SPICe) will normally prepare a report on a Bill at this stage, which summarises the main arguments, issues and evidence. These reports are public.

If a Bill includes new powers to make secondary legislation, the Delegated Powers and Law Reform Committee will be asked to give a view on those. That Committee considered this Bill on 25 August: its report is here. The Committee did not raise any concerns, but has passed on to the Justice Committee copies of evidence submitted by ForwomenScotland and by us, questioning the apparent power in s15 of the Bill not only to add “sex” as a characteristic at a later date using regulations, but also to use those regulations to define it differently from the Equality Act 2010. It will be for the Justice Committee to decide whether that part of the Bill is acceptable as it stands.

A Bill with any possible financial implications is also sent to the Finance Committee for comments. The Finance Committee called for evidence and received a small number of responses, including from Police Scotland and the Scottish Police Federation, available here. Its report to the Justice Committee does not yet appear to have been finalised.

Based on the responses it receives, the Committee decides which individuals or organisations to invite to appear in front of it to give oral evidence. The Committee decides how many oral evidence sessions to hold. Witness sessions are generally held in public, at the moment are available to watch on-line at the time or afterwards, and are recorded word for word in the Official Report, published on the parliament’s site here. Sessions are included as part of the Committee’s regular programme of meetings. At its 18 August meeting, the Committee agreed “To begin to take oral evidence on this Bill, most probably from late October”.

The usual pattern is for Scottish government officials to be seen first, to allow the Committee to clarify any points about the proposals, then a mixture of witnesses representing various perspectives and areas of expertise, and finally the Minister (in this case, Humza Yousaf MSP).

Although only Committee members have voting rights, other members may attend sessions, with the agreement of the Committee convener, and ask questions (this is relatively unusual).

The Committee then produces its Stage 1 Report, setting out its view on the Bill. The report is expected to say whether or not the committee recommends agreement to the general principles of the Bill. The report as a whole and any specific recommendations it makes may be agreed unanimously or by a majority of committee members. Where there is only majority agreement, the minority members may ask for their views to be recorded separately in the report.

A debate is then held involving the whole parliament. This Stage 1 debate normally cannot take place fewer than 5 “sitting days” (a working week, generally) after the Stage 1 report is published, although the parliament can agree to ignore that rule. At the Stage 1 debate, the parliament then votes to accept or reject the general principles behind the Bill. This is a single yes/no vote. If the parliament agrees, the Bill goes forward for further detailed consideration. Otherwise, the Bill falls. It is very unusual for a government Bill to fall at Stage 1, although Ministers can promise at this stage to make changes, to get enough votes to proceed.

It is difficult to say how quickly the Stage 1 process is likely to be completed in this case. That will depend on other pressures on the committee’s time, how quickly it is able to digest responses to its call for evidence and decide who it wants to invite to give oral evidence, how many evidence sessions it needs to schedule and how easily it can pull its conclusions together into a report. Oral evidence on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill was spread over 6 committee meetings.

The Committee will miss two meetings in October due to the parliamentary recess (10-25 October inclusive). The Parliamentary Bureau has set a deadline of Friday 18 December for completing Stage 1. The Justice Committee is therefore expected to plan its work in order to achieve this, but timetables set at this stage can be amended. Friday is not usually a day when the parliament meets, so this implies the Stage 1 debate taking place no later than Thursday 17 December, and the Stage 1 report being published no later than Thursday 10 December (and therefore being agreed no later than the Committee’s meeting on Tuesday 8 December). At its meeting on 18 August the Committee agreed “That sufficient time needs to be given to scrutinise this Bill. To revisit the current Stage 1 deadline of 8 December 2020 if this proves to be necessary.”

Stage 2
If it is agreed at the Stage 1 debate that a Bill can proceed, it then goes back to the bill committee (here, Justice). There must be at least 12 “sitting days” between the Stage 1 debate and the start of Stage 2. If the Stage 1 debate did take place on 17 December, the Christmas/New Year recess (24 December-8 January inclusive) means the earliest date for Stage 2 starting would be Tuesday 26 January 2021, if the Committee kept to its usual schedule of Tuesday meetings.

The committee considers whether to accept the detailed content of the Bill or to amend it. Amendments can be put forward by MSPs (“lodged”) as soon as the parliament approves a Bill at a Stage 1 vote. For a committee sitting on a Tuesday, amendments must be lodged no later than the Wednesday preceding the meeting where they are going to be discussed.

Although only committee members have voting rights, any MSP can put forward amendments and attend to speak in their favour. The government often brings forward its own amendments at this point, to deal with recommendations made by the Committee at Stage 1, follow up promises it has made in Stage 1 debate, fix technical points or occasionally include new material, within the limits of the Bill’s general scope. The relevant minister will generally attend and speak at Stage 2 sessions. It is in theory possible for the Committee to decide to take more oral evidence at Stage 2, where amendments raise new issues, but this is unusual.

Amendments are published by the parliament as they are put down, by adding over and over again to a daily list. Just before the meeting, all the proposed amendments are published in a “marshalled list”, grouped by theme, to help the committee see how they relate to each other and avoid having the same debate several times.

There are rules about what amendments are permitted (“admissible”). One of these rules is intended to make it impossible to introduce “wrecking amendments” at Stage 2 which try to reverse the parliament’s agreement to a Bill’s general aims. The final decision on the admissability of amendments rests with the committee’s convener.

In this case, an important question will be how far approval of the Hate Crime and Public Order (Scotland) Bill’s general principles at Stage 1 would limit the scope for changes to Part 2 of the Bill (on “stirring up”), up to and including removing that section. Removing Part 2 would simply leave the existing law on against stirring up racial hatred unchanged. Subject to any other amendments, the Bill would still consolidate existing law on hate crime aggravations and add provisions for age and VSCs; introduce a power to add the characteristic of sex at a later date; and abolish the offence of blasphemy.

The parliament’s rules say:

Where a Bill is introduced with only one or two principal purposes, an amendment to leave out (or substantially alter) that purpose or one of those purposes would not normally be admissible. But where the Bill was introduced with three or more purposes, it may be possible to leave out by amendment any one of them without wrecking the Bill. In any particular case, account would be taken of how substantial the purpose is, the extent to which the remaining purposes would be affected by its removal (or substantial alteration) and how close it is in terms of subject-matter to the other principal purposes of the Bill. It would normally be possible to remove by amendment from a multi-purpose Bill a minor purpose that stands apart from the remainder of the Bill and on which the rest of the Bill does not depend, but not to remove a more substantial purpose which is more central to the Bill as a whole. (para 4.23 here)

The purpose of a Bill is set out in its “long title”. In this case this is:

An Act of the Scottish Parliament to make provision about the aggravation of offences by prejudice; to make provision about offences relating to stirring up hatred against a group of persons; to abolish the common law offence of blasphemy; and for connected purposes.

Presuming the Bill proceeds to Stage 2, it is difficult to say how many such sessions the Bill would need. It is relatively short compared to many. Bills of this length can be dealt with in one sitting, depending on how many amendments are put forward, and on how many different themes.

The sessions are public and recorded word for word in the Official Report.

At the end of Stage 2, a new version of the Bill “as amended at Stage 2” is produced.

Stage 3
At this stage, the Bill returns to be debated by the whole parliament. There must be at least 10 “sitting days” between completing Stage 2 and Stage 3. The debate has two stages. During the first part, amendments can be agreed, although there are quite strict limits on what amendments can be made. In the second part, the parliament has a general debate on the Bill and either accepts or rejects it. These two parts are usually completed on the same day.

At this point, predicting timetables becomes even more speculative, but if the Stage 1 debate happened on 17 December, and if the detailed debate on content at Stage 2 was dealt with in a single sitting on 26 January, the earliest date for Stage 3 would be Thursday 18 February (assuming the usual week of recess in the first half of February). If Stage 2 instead required 2 sittings, on these assumptions Stage 3 could not take place before Thursday 25 February (and Thursday 4 March, if Stage 2 needed 3 sittings; more than that would be very unusual for a relatively short Bill). The week beginning 22 March should be the parliament’s last week of business before it closes for the elections in May. So if the Committee meets the timetable already set for it for Stage 1, completing Stages 2 and 3 is tight, but doable.

Becoming law
After this point, a Bill goes forward to Royal Assent, when it becomes law. This is generally a technicality, although it is possible at this stage for a Bill to be referred to the UK Supreme Court by the Scottish government’s Lord Advocate or by the UK government if there is doubt over whether it falls within devolved competence (for example, by breaching the European Convention on Human Rights) and on a handful of other grounds. There is a further process to go through if this happens, which can result in the Bill requiring to go back to the parliament, to deal with any problems identified by the Court, before it can receive Royal Assent.

Once it has Royal Assent, some parts of an Act may “come into force” immediately, while others only do so once an order is used to bring them into force. Under this Bill, the substantial changes all require further orders to be made by Scottish Ministers before the changes come into force. Those orders would not need to be debated, unless MSPs took additional steps at the time to trigger a debate (see here under “negative procedure”: if an MSP asks for it, there must be a debate in the relevant committee, at which the order could be rejected). Sometimes an Act may have received Royal Assent but not all parts have been brought into force.

In this case, it seems unlikely any changes would be brought into force before the end of this parliament. In evidence to the Justice and Finance Committees, Police Scotland and the Scottish Police Federation identify police training as a substantial issue which would need to be addressed before changes to the law came into effect. If the Bill were to pass, this final stage would therefore be expected to be taken forward by Ministers and the parliament after the 2021 election.