The Crofting Reform (Scotland) Bill and the curious incident of the unopposed opposition amendment

The Crofting Reform (Scotland) Bill was passed by the Scottish _Parliament on 1st July 2010. It is an important piece of legislation that will transform aspects of crofting law addressing issues of crofter absenteeism, and neglect and misuse of crofts; the introduction of elections for membership of the Crofting Commission; new rules on common grazings; and new rules on succession of crofts; as well as – controversially – the introduction of a new map based register of crofts. The original model of register introduced at Stage 1 (which appeared to be heavily based on the much criticised Land Registration (Scotland) Act 1979) has been tempered by substantial amendments duiring the parliamentary process.

For students of the Scottish parliamentary process the Crofting Reform (Scotland) Bill will be remembered for other reasons. For only the second time in the history of the Scottish Parliament proceedings were suspended mid-session (on an emergency motion). The first instance involved a protest by Scottish Socialist Party MSPs. This time the matter that prompted the suspension came from the chair.

At Stage 3 of the Bill there were around 230 amendments. The timetabling within the Parliament meant that these 230 amendments had to be dealt with in around 3 hours. For a teacher of statutory interpretation – where textbooks and judicial statements proclaim that the reader is to discern the intention of Parliament (prompting some more cynical students to enquire as to the level of scrutiny the legislative end product receives) – the consideration of Stage 3 of the Crofting Bill will be a useful case study. At the commencement of the debate the Presiding Officer pronounced,

 "The first division will be a 30-second division, following a five-minute suspension. Thereafter, there will be a voting period of one minute for the first division after a debate and the voting period for all other divisions will be 30 seconds. We are incredibly tight for time, so, to begin with, I ask no speaker to speak for more than one minute." (col 28046)

To those not in the chamber or viewing the live feed of the crofting debate from Holyrood TV the first sign that something was awry was on Twitter from the leader of the Green Party. Patrick Harvie tweeted at 11.11 am

"Holyrood descends into shambles as the DPO ignores MSP's demands to vote against an amendment."

And in response to a query from Tweeter skvodahl79 Mr Harvie replied,

"I didn't mean the DPO voted – she refused to let anyone vote! Majority was against, but she accepted the amendment and moved on."

While racing through the amendments, Trish Godman, the Deputy Presiding Officer, allowed an opposition amendment to pass through without noting the objections.

The relevant passage in the Official Report is here:

 "Amendment 93 moved—[Peter Peacock].

The Deputy Presiding Officer: The question is, that amendment 93 be agreed to. Are we agreed?

That is agreed.

Amendment 93 agreed to.

The Deputy Presiding Officer: I call amendments 94 to 97, in the name of the minister—

Roseanna Cunningham: Sorry, we said no to amendment 93.

The Cabinet Secretary for Rural Affairs and the Environment (Richard Lochhead): We said no.

The Deputy Presiding Officer: One of the clerks heard it, but I can assure you that I did not hear it, so perhaps you should shout a wee bit louder next time.

The question is, that amendment 93 be—

Members: No! [Interruption.]

The Deputy Presiding Officer: As I had already called amendments 94 to 97, as far as I am concerned the vote has been taken. [Interruption.]

Roseanna Cunningham: I appreciate that you did not hear me say no, Presiding Officer, but the clerk did and so did members here. I really must ask that the vote be taken on amendment 93.

The Deputy Presiding Officer: I am sorry, but I am in the chair. The clerk said that she heard it after I had called the next amendments. I did not hear you—[Interruption.]" (col 28102)

The video footage of the debate is available on-line until the end of July. The relevant passage is at 1 hour 33 minutes to around 1 hour 43 minutes.  Passing over the issue of the Deputy Presiding Officer failing to realise that an opposition amendment would be likely to face objections (given that every previous amendment proposed by Peter Peacock MSP had been opposed and voted down during the Stage 3 proceedings) it is apparent that the Deputy Presiding Officer  appeared ready to ask the question again until there were objections from within the chamber. As the Deputy Presiding Officer then refused to let a vote proceed things became heated and argument between the parties then proceeded.

"Alasdair Allan: On a point of order, Presiding Officer.

The Minister for Parliamentary Business (Bruce Crawford): On a point of order, Presiding Officer.

The Deputy Presiding Officer: I call Alasdair Allan.

Alasdair Allan: With the greatest respect to the chair, Presiding Officer, we are not responsible if the only person in the chamber who did not hear was you. [Interruption.]

The Deputy Presiding Officer: Can I just answer that? That was not a point of order—[Interruption.] If members would quieten down, they might hear something. That was not a point of order, but I was not the only one up here who did not hear. There are three people sitting here; two did not hear.

Karen Gillon: On a point of order, Presiding Officer. Under standing orders, I understand that, as you have called another vote, we should therefore proceed and the vote stands.

Bruce Crawford: On a point of order, Presiding Officer. I realise that this is a difficult situation—I fully understand that. However, you have just conceded yourself that a member of the clerking team heard a no being called in the Parliament. Therefore, there is only one conclusion that can be drawn—that a no was clearly called from the Parliament. In those circumstances, you must accept that.

The Deputy Presiding Officer: I am sorry, Mr Crawford, but it is not clear. That is the problem: it is not clear—[Interruption.] I have moved on. I did not hear it, and I intend to move on.

Bruce Crawford: Under these circumstances, Presiding Officer, I call for an adjournment.

The Deputy Presiding Officer: I do not see any reason for an adjournment, as I have already called the next set of amendments. I did not hear it, and I am moving on.

I call amendments 94 to 97—[Interruption.]

Tricia Marwick (Central Fife) (SNP): On a point of order, Presiding Officer.

Alasdair Allan: On a point of order, Presiding Officer.

Mike Rumbles (West Aberdeenshire and Kincardine) (LD): On a point of order, Presiding Officer.

The Deputy Presiding Officer: I am not sure who was first but, if it is the same point of order, I call Tricia Marwick.

Tricia Marwick: No was clearly said, but the point of order is this, Presiding Officer. You may have gone on to the next set of amendments, but Ms Cunningham did not move them. Therefore, no vote has been called and you are quite within your rights to go back to amendment 93 and take a vote on it.

The Deputy Presiding Officer: No, that is not the case—[Interruption.]

Alasdair Allan: On a point of order, Presiding Officer.

Mike Rumbles: On a point of order, Presiding Officer.

The Deputy Presiding Officer: I call Alan Alexander again.

Members: Alan Alexander?

The Deputy Presiding Officer: Alasdair Allan—sorry, Alasdair.

Alasdair Allan: I ask for the record whether it is the Presiding Officer's view that the clerk who heard those words imagined them. [Interruption.]

The Deputy Presiding Officer: Mr Allan, this is a very serious moment. I really do not feel that you should make that kind of comment. I call Mr Rumbles.

Mike Rumbles: With respect, Presiding Officer, having taken informal soundings among three of the four business managers—I hope that the fourth business manager would agree—I think that it is in everybody's interest if we could suspend standing orders for the moment and have an adjournment until we sort this out.

The Deputy Presiding Officer: I am in the chair and the business managers do not run what we are going through.

The Minister for Housing and Communities (Alex Neil): On a point of order, Presiding Officer. We have been in a similar position before, when a Presiding Officer did not hear and was about to move on but then took the vote. I suggest that we follow precedent.

The Deputy Presiding Officer: I point out again that I had moved on. I had already called out the next set of amendments when I was told that someone had called out no—I do not know who it was.

Bruce Crawford: On a point of order, Presiding Officer. I would like to move a motion to suspend.

The Deputy Presiding Officer: You cannot have a motion to suspend. [Interruption.] I am sorry but, if you all shout at me at once, I cannot attend to you.

Karen Gillon: On a point of order, Presiding Officer. I understand that, according to the standing orders, if the Presiding Officer has made a ruling and we have moved on to a different set of votes, then another vote has been called and we should proceed to that vote. That is what the standing orders say. If the Government wishes to bully the Presiding Officer—

Members: Oh!

Karen Gillon: That is what it is seeking to do. The Presiding Officer has called the vote and we should carry out that vote.

The Deputy Presiding Officer: I make it absolutely clear that I do not think that I am being bullied. I have given you a ruling. I genuinely did not hear anyone say no. I have moved on and the vote has been taken.

Paul Martin (Glasgow Springburn) (Lab): On a point of order, Presiding Officer. I appreciate that there might be discrepancies in what has been heard. However, we know that audio recordings are taken of proceedings in the chamber. I think that it would be helpful to have an adjournment to allow the audio tapes to be interrogated to clarify whether the Minister for Environment did, in fact, say no in respect of the amendment. We have been able to interrogate tapes in the past in that respect.

The Deputy Presiding Officer: I am sorry, but I have made a ruling from the chair. I did not hear anyone say no, and I moved on to the next set of amendments. I intend to continue with those." (cols 28102 – 28105)

An emergency motion to suspend proceedings was then put by Bruce Crawford and – after some time – agreed to by the chair.

On resumption it was not apparent to the watching public what had happened. However, BBC Scotland political editor Brian Taylor enlightened the curious:

"I understand the controversy was resolved as follows. The contentious Labour amendment (number 93, if you're still following this) was designed to insist upon a further affirmative resolution before part two of the Bill takes effect.

Part Two deals with a proposed new register for crofting. Labour dislikes the plan and, in effect, was seeking to thwart it or, at least, facilitate second thoughts.

My belief is that Mr Crawford secured agreement from others that they would permit the new register to go ahead, on affirmation.

Job done, row over. "

Occasionally commentators are critical of legislation. Sometimes such criticism is directed at drafting. Sometimes at policy. But typically such criticism has to take into account that the legislation (particularly within the Scottish Parliament) has been subject to an extensive Stage 1 process where evidence from interested parties and experts is gathered by a specialist committee – prior to line by line scrutiny in later stages. However, is all well in the manner in which legislation is dealt with by the Scottish Parliament?

For example, on the day of posting, the manner in which the Scottish Parliament implemented the recommendations of the Scottish Law Commission's Report on Title to Sue for Non-patrimonial Loss (Scot Law Com no 187) are criticised in the Outer House in Mykoliw v Botterill [2010] CSOH 84.

The procedure in the Scottish Parliament last week means that those affected by legislation in their day to day lives can take little comfort in the scrutiny of legislation given by parliamentarians. That the 230 Stage 3 amendments to the Crofting Bill were dealt with in under 3 hours; and the nearly 200 amendments considered at Stage 3 of the Criminal Justice and Licensing (Scotland) Bill were dealt with in similar time; and that speeches on what can be technical and important amendments are limited to 1 minute duration, with divisions taking either 30 seconds or 1 minute, does not reflect well on the Scottish Parliament – and it is astonishing that in those circumstances that problems of the type that arose in relation to Peter Peacock's amendment 93 do not occur more frequently.

The writer endorses the pertinent question asked by Brian Taylor,

"Is it right that time for final decisions on this legislation is so truncated that the amendments have to be read out at the speed of a bingo caller?"

One trusts that those in control of timetabling legislation in the Scottish Parliament (at Stage 2 and Stage 3 in particular) take account of last week's debacle. Surely it is better to get legislation right, than to get it right now.