Guide to Collective Decision Making
Annex A
GUIDE TO COLLECTIVE DECISION MAKING
CABINET APPROVAL OF PROPOSALS FOR PRIMARY LEGISLATION
Paragraph 3.2 of the Scottish Ministerial Code provides that: "Ministers should not give undertakings either in or outside the Parliament to introduce primary legislation on any issue without the prior agreement of the Cabinet". What this means in practice is that the Cabinet should be asked to:
Approve the content of future legislative programmes (normally on the basis of a draft programme put forward by the Cabinet Sub-Committee on Legislation);
Agree to the principle of legislation on an issue before any public commitment is given to bring forward primary legislation on that issue and before resources in the Office of the Solicitor to the Scottish Executive and the Office of the Scottish Parliamentary Counsel are committed to the preparation of the relevant legislation. (This approval in principle will normally be given when the Cabinet discusses and agrees plans for future legislative programmes - see sub-paragraph (a) above);
Approve the policy content, and scope and extent, of each Bill before the Bill is issued for consultation or otherwise published;
Approve proposed changes to the agreed policy content of a Bill if the Cabinet Sub-Committee on Legislation considers that the proposed changes are of such significance or sensitivity as to require Cabinet consideration. (See paragraph 3 below).
In the case of major Bills, the approval referred to at paragraph 1(c) above should normally be sought in a Cabinet memorandum put forward by the lead Minister(s) for discussion at a Cabinet meeting. In other cases (particularly where a Bill deals with detailed policy issues that raise no new issues of special significance) it may be appropriate to seek Cabinet approval for the policy content and scope and extent of the Bill via Cabinet Correspondence (see paragraphs 4.12 above and the Guide to clearing proposals with Cabinet in Cabinet Correspondence). The Secretariat of the Cabinet Sub-Committee on Legislation should be given an opportunity to comment on a draft of any paper (Cabinet memorandum or Cabinet Correspondence) seeking Cabinet approval for the policy content etc of a Bill.
Where it is proposed to make (or accept) significant amendments to the policy content of a Bill after the policy content has been approved by the Cabinet, the amendments should be referred to the Cabinet Sub-Committee on Legislation for approval. As indicated in paragraph 1(d) above, where the Sub-Committee considers proposed changes to the policy content of a Bill to be of such significance or sensitivity as to require Cabinet consideration (or where it is unable to agree on a course of action), the matter should be referred to the Cabinet for decision together with the Sub-Committee's recommendation (where appropriate).
The Cabinet Sub-Committee on Legislation is also responsible for:
Considering proposals for Member's Bills and Committee Bills and making recommendations on the position to be taken by the Executive on each proposal; and
Approving proposals for the Parliament to be invited to give consent by means of a Sewel motion to the inclusion in UK Bills of legislation relating to devolved matters.
Where the Sub-Committee considers the subject matter of a proposed Sewel motion to be of such significance or sensitivity as to require Cabinet consideration (or where it is unable to agree on a course of action), it will refer the matter to the Cabinet for decision together with its recommendation (where appropriate). In other cases the Sub-Committee will take a final decision on behalf of the Cabinet.
In the case of Member's Bills and Committee Bills, the Cabinet should always be given an opportunity to comment on the Sub-Committee's recommendations in relation to the handling of the Bill. In most cases, the Cabinet will be notified of the Sub-Committee's recommendation in a minute from the lead Minister to all Cabinet Ministers. Formal, and specific, endorsement by the Cabinet of the recommendation made by the Sub-Committee will normally only be sought where the Bill raises issues that are contentious or are otherwise not clear cut.
Cabinet Secretariat
August 2003
Annex B
GUIDE TO COLLECTIVE DECISION MAKING
CONSULTATION WITH THE LAW OFFICERS
The Law Officers must be consulted in good time before the Executive is committed to critical decisions involving legal considerations. The opinion of the Law Officers should normally be obtained through a reference from the Office of the Solicitor to the Scottish Executive.
It will normally be appropriate to consult the Law Officers in cases where:
(a) The legal consequences of proposed action might have important repercussions in the foreign, European Union or domestic fields;
(b) A legal adviser in the Scottish Executive has doubts about the legality or constitutional propriety of proposed legislation or Executive action, particularly where it concerns any devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998;
(c) Ministers, or their officials, wish to have the advice of the Law Officers on questions involving legal considerations before proposals are referred to the Cabinet or to a Cabinet Sub-Committee; or
(d) There is a particular legal difficulty that may raise political aspects of policy.
Cabinet Secretariat
August 2003