This section provides the Parliament with powers to require witnesses to appear before it to give evidence or to produce documents. The section provides the Parliament with an ability to scrutinize, question and investigate matters concerning any subject for which any member of the Scottish Executive has general responsibility.
This section should be read with sections 24, 25 and 26 which form the general package of provisions which confers upon the Parliament and its committees the necessary powers to scrutinise and investigate matters. These provisions are essential to ensure that the Scottish Parliament is able to hold the Scottish Executive and other bodies to account and to investigate and scrutinise any subject for which any member of the Scottish Executive has general responsibility. The Standing Orders of the Parliament make further provision in this regard.
On 1 November 2000, the Parliament approved a motion setting out certain principles which it commended to Committees as guidelines to be followed by them when seeking official information from the Scottish Executive and in particular exchanges between officials and Ministers on policy issues. The motion made it clear that, as part of its policy of openness, the Executive should make as much information as possible publicly available; that, while officials can provide Committees with factual information, the Committees should look to Ministers to account for the policy decisions which they have taken and that “where, exceptionally, Committees find it necessary to scrutinise exchanges between officials and Ministers on policy issues, arrangements should be made to ensure that the confidentiality of those exchanges is respected”. In other words, in the exceptional case where a Committee may find it necessary to look at these exchanges, it should, rather than seeking to require their production publicly in exercise of its powers under section 23, be prepared to enter into arrangements in terms of which it can see the documents in confidence.
| Stage | Date | Column |
|---|---|---|
| CC | 29-Jan-98 | 571 |
| CC | 29-Jan-98 | 572 |
| CR | 12-May-98 | 197 |
| LC | 16-Jul-98 | 485 |
| LC | 21-Jul-98 | 771 |
| LC | 21-Jul-98 | 776 |
| LC | 21-Jul-98 | 779 |
| LR | 28-Oct-98 | 1917 |
| LR | 28-Oct-98 | 1918 |
| LR | 28-Oct-98 | 1920 |
| LR | 28-Oct-98 | 1921 |
| LR | 28-Oct-98 | 1925 |
| LR | 28-Oct-98 | 1941 |
| LR | 28-Oct-98 | 1944 |
| L3 | 9-Nov-98 | 531 |
| L3 | 9-Nov-98 | 532 |
Subsection (1) provides that the Parliament may require any person to attend its proceedings for the purpose of giving evidence or to produce documents in that person’s custody or control which relate to any matters concerning “any subject for which any member of the Scottish Executive has general responsibility”.
“Proceedings” includes proceedings of committees and sub-committees of the Parliament (section 126(1)) and subsection (8) sets out the conditions in which the power in subsection (1) may be exercised by a committee or sub-committee. “Document” includes anything in which information is recorded in any form (section 126(1)). The reference to “person” would include a legal person, such as a body corporate under section 25(5).
There is no definition of what is meant by “any subject for which any member of the Scottish Executive has general responsibility” but it is not limited to matters where functions have been conferred upon a member of the Scottish Executive, whether in relation to devolved or reserved matters. It would also cover matters which fall within the general policy responsibility of a member of the Scottish Executive, even where the functions may be carried out by an office holder, such as the Keeper of the Registers of Scotland.
This is the main criterion which requires to be satisfied before the Parliament can impose any requirement upon any person under this section. The other subsections all refer back to “such a requirement” under this subsection and impose additional restrictions in different circumstances.
Subsection (2) provides that the Parliament may, subject to subsection (3), only impose a requirement under subsection (1) on a person outside Scotland in connection with the discharge by him of functions of the Scottish Administration or of functions of a Scottish public authority or a cross-border public authority or Border rivers functions which concern a subject for which any member of the Scottish Executive has general responsibility.
“Scottish Administration” is defined in section 126(6)-(8); “Scottish public authority” in section 126(1); “cross-border public authority” in section 88(5) and “Border rivers functions” in section 111(4).
This would enable, for example, the Parliament to summon a member of a cross-border public authority, who resides outside Scotland, in connection with the discharge by him of the functions of that authority in relation to devolved matters in or as regards Scotland. Those functions would concern a subject for which a member of the Scottish Executive has general policy responsibility, even although that member of the Scottish Executive does not have any general policy responsibility for the cross-border public authority itself.
Subsection (3) provides that, in relation to the exercise of functions of a Minister of the Crown, the Parliament may only impose such a requirement under subsection (1) on a person who is or has been a Minister of the Crown or a person in Crown employment (e.g. one of his civil servants under the Carltona doctrine) where the exercise of that function concerns a subject for which any member of the Scottish Executive has general responsibility. This is, however, subject to subsection (4).
This would enable, for example, the Parliament to summon a Minister of the Crown (or his civil servants) in relation to the exercise of his functions in connection with the devolved functions of a cross-border public authority because those devolved functions would concern a subject for which a member of the Scottish Executive has general policy responsibility. Other examples might be where functions are exercisable by the Scottish Ministers but only with the agreement of, or after consultation with, a Minister of the Crown. This subsection would enable the Parliament to require that Minister or his civil servants to give evidence in connection with the discharge of his function, such as the reasons for giving or refusing consent or the views which he expressed upon consultation.
“Minister of the Crown” includes the Treasury - see section 126(1).
“Crown employment” is defined by reference to section 191(3) of the Employment Rights Act 1996 which defines it as “employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision.”
Subsection (4) qualifies subsection (3) by providing that the Parliament may not impose such a requirement upon a Minister of the Crown or a person in Crown employment in connection with the exercise of functions which are exercisable:
by the Scottish Ministers as well as by a Minister of the Crown, such as, for example, the shared functions under sections 56 or 57(1); or
by a Minister of the Crown only with the agreement of, or after consultation with, the Scottish Ministers. Subsection (4)(b) is qualified by subsection (5).
Section 44 makes provision in relation to Scottish Ministers.
Subsection (5) provides that subsection (4)(b) does not prevent the Parliament imposing such a requirement in connection with the exercise of functions which do not relate to reserved matters.
The effect of subsections (4) and (5) is that, although a Minister of the Crown or his civil servants will not be a compellable witness in respect of the discharge of his functions merely because they are exercisable with the agreement of or after consultation with the Scottish Ministers, they will be compellable if those functions relate to devolved matters. For example, under subsection (3), it has been pointed out that a Minister of the Crown, or his civil servants, may be a compellable witness in relation to the exercise of his functions in relation to the devolved functions of a cross-border public authority. Subsection (5) ensures that this remains the position even although the Minister of the Crown is required by section 88(2) or by an order under section 89 to consult Scottish Ministers before exercising those functions.
Subsection (6) provides that the Parliament may not impose such a requirement upon a person in connection with the discharge by him of the functions of any body where all of the functions of the body relate to reserved matters. Section 126(3) makes provision for determining whether the functions of a body relate to a reserved matter.
Subsection (7) provides that the Parliament may not impose such a requirement upon a judge of any court or a member of any tribunal in connection with the discharge of by him of his functions as such a member.
“Tribunal” is defined in section 126(1) as meaning any tribunal in which legal proceedings may be brought.
Subsection (8) permits committees and sub-committees of the Parliament to exercise the power to call witnesses and documents if they are expressly authorised to do so by standing orders or otherwise. The Standing Orders of the Parliament provide a general authorisation for committees.
Subsection (9) states that a person is not obliged to answer any question or to produce any document which he would be entitled to refuse to answer or produce in court proceedings in Scotland. There are various circumstances in which the courts in Scotland recognise the right of a person to refuse to answer questions or to produce documents, such as where they may lead to self incrimination or breach legal confidentiality or where the documents were prepared for the purposes of litigation in certain circumstances, or where disclosure would be contrary to the public interest.
Subsection (10) provides that a procurator fiscal is not obliged to answer any question or produce any document concerning the operation of the criminal prosecution system in any particular case if the Lord Advocate considers that doing so might prejudice criminal proceedings in that case or would be contrary to the public interest, and he has authorised the procurator fiscal to decline to answer the question or produce the document. Section 27(3) makes provision in relation to the protection afforded to the Scottish Law Officers.