MDRN-24

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 12

35th Meeting, May 17, 2017

Witnesses: Rt. Hon. Ken Macintosh M.S.P., Presiding Officer, The Scottish Parliament; and
Sir Paul Grice, Clerk and Chief Executive, The Scottish Parliament. 0

The Special Senate Committee on Senate Modernization met this day at 12:21 p.m. for the consideration of methods to make the Senate more effective within the current constitutional framework. 1

Senator Thomas J. McInnis (Chair) in the chair. 2

The Chair: Honourable senators, I call this meeting of the Special Senate Committee on Senate Modernization to order. 3

During this phase of its work, the committee is focusing on the role of the Senate in Canadian governance. In considering this subject, our committee is looking for expert advice from other jurisdictions, particularly about how other parliaments organize their business. 3-1

A few weeks ago, some of us had the privilege of meeting with The Right Honourable Ken Macintosh, Presiding Officer of the Scottish Parliament, during his visit to Ottawa. We found this exchange to be most informative and so we have invited him to share his views and insights with the whole committee. 3-2

The presiding officer is the Speaker of the Scottish Parliament, and his role is to chair the plenary proceedings in the Scottish Parliament chamber, the Scottish Parliamentary Corporate Body and the Parliamentary Bureau. 3-3

Before entering Parliament in 1999, he was a television producer for BBC news. In Parliament, he has served as a ministerial aide to the then First Minister Jack McConnell, and in opposition he has served as Shadow Minister for Schools and Skills, Culture and External Affairs, Education, Finance, Social Justice, Communities and Pensioners' Rights. In 2016, he was elected as the Scottish Parliament's fifth presiding officer. 3-4

He is accompanied today by Sir Paul Grice, Clerk and Chief Executive of the Scottish Parliament. 3-5

Gentlemen, welcome. 3-6

It's nice to see your face again, Mr. Macintosh. It was very considerate and kind of you to send along a submission to our Modernization Committee, which we believe will be quite helpful. As well, you also sent the Scottish Parliament's approach to developing its rules, procedures and working practices, the background on that. We thank you for that. 3-7

Do you have some opening comments? The procedure here normally is that we call on our witnesses, our guests, to say a few words, and then, of course, the members of the committee would like the opportunity to question you. Please proceed. 3-8

The Right Honourable Ken Macintosh, M.S.P., Presiding Officer, The Scottish Parliament: Thank you very much, Senator McInnis. It's great to see you. I'm sorry we can't be there in person. I came within a hair's breadth of persuading Sir Paul to allow us to go to Canada and attend in person, but we were more aware of the public purse, perhaps. 4

I'm not going to make an opening statement, so much as to say a few words of thanks for the opportunity this offers us, but also for the fantastic hospitality and welcome that you gave us on our trip. My colleagues and I agreed it was a fantastic experience, extremely worthwhile, extremely informative, and that was particularly thanks to your committee, as well as all of your colleagues in the Senate and in the Parliament of Canada. 4-1

We here in Scotland are, as you are, part of a long-established tradition of parliamentary democracy. But unlike you, we are actually a relatively new Parliament here in the Scottish Parliament. Having said that,when I came to office as presiding officer just a year ago, I also put in place a reform commission, because I think we always have to be on top of our own procedures to make sure that we accurately reflect the wishes of the people we represent. So for us, this is a mutually beneficial exchange. 4-2

Having said that, I should introduce Paul Grice, who is the Chief Executive of the Scottish Parliament. He is going to give evidence with me. In fact, Sir Paul will fulfill two functions. He will take all the difficult questions and correct me if I'm wrong, which is virtually every second question. 4-3

On that note, Senator McInnis, I will hand it back to you and your colleagues for any questions. 4-4

The Chair: The deputy chair of our committee, Senator Serge Joyal, will commence comments and questions. 5

Senator Joyal: Thank you again for your availability to accept our invitation to participate. 6

I understand that there is a parliamentary committee on reform, so you also seem to be faced with challenges of adaptation. What are the objectives of the committee and what reforms specifically are you considering to improve the operation of the Scottish Parliament? 6-1

Mr. Macintosh: When this Parliament was first established, it was quite a long process, but we established a number of principles. There was a Civic Forum that established a number of principles on which the Parliament should operate, including transparency, accountability, participation and sharing power with the people of Scotland. 7

We have operated to those principles. We're not trying to revisit those principles, but the Parliament itself has undergone various different iterations. We've had five elections, so five different sessions of Parliament. In that time, we have had different political forces at work. For example, we have the spectrum of political views, but we have had a referendum on whether or not Scotland should be an independent country. And the Parliament itself has found its procedures tested, but the principles have stood the test of time. 7-1

We want to now look at whether we can perhaps get back to the spirit, to make sure that we putting in practice the spirits that were originally intended, to make sure that we are still engaging with the people of Scotland, still accessible, still open, still sharing power, and to make sure the checks and balances are still operating. For example, is there a clear division between government and Parliament? Are we still open? 7-2

When we were established, we were very anxious to be sharing power. We set up a number of bodies. We had a body called the Civic Forum, which was a partnership body that we were supposed to relate to, but that didn't quite work out and was abandoned after about seven years in. 7-3

We also had a Petitions Committee. That's very much gone from strength to strength, but it's not produced as much legislation in recent years as it did initially. 7-4

We want to look at all of those processes and procedures, and the checks and balances, to make sure they are operating correctly and whether or not they can be improved. 7-5

Senator Joyal: I understand that your priority is to establish and maintain a link with the public. First, is that link supported by any kind of committee or commission or regulations that compels, for instance, the committee to consult with the public, to open its meetings to the public? And, second, how are political parties or groups represented in the Scottish Parliament involved in making this reality happen? 8

Mr. Macintosh: One of the principles on which we operate is openness, and therefore there is a presumption that all of our plenary sessions and our committee sessions are held in public. That doesn't mean to say they have to be at all times. 9

For example, when committees are deliberating on producing a report, after the evidence sessions that are all held in public, usually they go into private session before producing the report. Other than that, there is a presumption that they will all be held in public, and that is the case across the board, in all sessions. 9-1

I set up an independent commission, by the way, to look at reform. I've given this in evidence, but it's chaired by John McCormick, who is external to Parliament. It has five independent members and five parliamentary members. 9-2

One of the pieces of evidence they heard was questioning whether or not we were still meeting in public as much as we were initially. In other words, have practices crept back in whereby committees were meeting in private perhaps more often than they needed to? These are some of the issues that we're looking at too. 9-3

Something North America has been better at than perhaps here in the U.K. is openness. Your freedom of information culture and openness has perhaps been greater than ours has been in the past, but the Scottish Parliament established early on to embrace that principle of always being open. 9-4

To give you one example, there was another rule very early on. The press have free access around the building, on the parliamentary campus. No areas are off-limits to members of the press. They can come and go as they please, and that's everywhere. They're not allowed to go into members' individual offices unless they're asked in, but they can go up the members' corridors and everywhere else. 9-5

It was also deemed early on that when speaking to the press, members would not be speaking off the record; everything would be on the record where possible. 9-6

We've tried to practise that from the outset. Again, though, sometimes practices change with time. One of the reasons we're looking at it again is to make sure we're still fulfilling that in practice as well as in spirit. 9-7

Senator Joyal: One of the essential elements of the dynamics of public debate is the diversity of views—and, to a point, conflicting views—being expressed around an issue, theme or question. How do you manage to be sure in the Scottish Parliament, with the political make-up you have, that those views find their way forward and are expressed as freely as possible? 10

Mr. Macintosh: It's always difficult in the sense that we try to be open with all members of the public. The committees themselves, particularly the clerking support, which is the parliamentary support for our committees, place great stake in this. 11

Most of our committees will try and establish links within their area of expertise. So the education committee, the local government committee or the health committee will try and establish links with all organizations operating in that sector. For example, when a committee decides to launch an inquiry or the government puts forward a piece of legislation, the committees, on behalf of Parliament, will then write out to all of those organizations and bodies, and to the public more generally, to garner views. 11-1

But we don't just stick with those organizations. We're always looking at new ways of reaching out, particularly to those disengaged communities or those who are most difficult to reach. 11-2

We take the Parliament out. Literally, committees do not meet in the building here but go around to different parts of Scotland. They meet in official sessions, with the Official Report present, recordings and all the paraphernalia that goes with a proper committee meeting, but we'll have it in a community halls in particular areas of Scotland. 11-3

We also sometimes employ organizations such as those which might be particularly good at working with young people to make sure that we hear the views of young people. We ask them to help us make sure that the way we present information is in a language that those we wish to engage with understand, and that we then collate the responses in a manner that gives them confidence to appear before our committee. 11-4

Could I actually bring Sir Paul in at this point? He might want to add a few comments. 11-5

Sir Paul Grice, Clerk and Chief Executive, The Scottish Parliament: Thank you. I have only a couple of additions to what you've said. 12

Social media is increasingly useful to us in terms of reach and diversity, and we're investing a lot of effort in developing our capability in that area. I would say we have some distance to go, but that's a key area. 12-1

In terms of diversity and reach, we have a huge number of events in the Parliament each year—around 400 events—major events such as our Festival of Politics. One of the primary purposes of those events is to allow a wide range of citizens, whatever their interest, to come to the Parliament and engage with members. 12-2

So those are just a couple of footnotes to the points you made. 12-3

Mr. Macintosh: Thank you, Senator Joyal. 13

Senator Dupuis: Thank you for appearing before the committee today. My question has to do with the Parliamentary Bureau. If I understand correctly, it comprises political parties with five members as well as individuals not affiliated with a political party. In terms of how the bureau operates, could you explain the mechanism it uses to balance the presence of committee members with other elements? 14

Mr. Macintosh: Thank you, Senator Dupuis. 15

I've given you a slightly misleading impression. The Parliamentary Bureau is a particular organization responsible for establishing the business of Parliament. When I was talking about inviting participation from outside Parliament, that tends to be the work of the committees of the Parliament rather than the bureau. That would be subject committees or standing committees looking at particular areas. 15-1

The bureau itself a very much an internal body. I chair it as Presiding Officer, and there are five other representatives. Each of the representatives represents any party with five or more members. To qualify as a group or a caucus in the Scottish Parliament, you have to have five or more members. In the current session, we have five parties with five or more members. 15-2

We try to arrange and discuss business. For example, we'll propose the business for Parliament over the next two or three weeks. It has to be approved; we put it to Parliament and Parliament votes on it. 15-3

We will also take decisions on how many committees there should be and who should be on them. We allocate bills or subject matter to particular committees, and we take a few other decisions. 15-4

The members of that bureau have weighted votes. At the moment, the SNP, Scottish National Party, representative will have 63 votes behind him and the Conservative member have 31 votes, representing the makeup in the Parliament. 15-5

But we try whenever possible not to have votes. We try to reach consensus or agreement, and that's how we conduct our business. 15-6

Senator Dupuis: You said the Parliamentary Bureau decides on the membership of the committees. As part of the reform process, did you examine the committee categories? In other words, at what point did you assign areas of responsibility to the committees? Do you plan to review the makeup of the committees? 16

Mr. Macintosh: That's an excellent question. I can give you a few comments on it, although I can't tell you definitively, because the commission itself is due to report in exactly one month. So they haven't given us their conclusions. 17

But I can tell you that we currently have 15 committees, but that number can vary; it can go up or down. There are currently six standing or mandatory committees. Those would be the subjects like finance and constitution, audit, equal opportunities and so on. They're standing committees. Then we have nine subject committees, and they would reflect the policy areas such as health, education, justice, environment and so on. 17-1

Just to give you an idea of some of the areas we are looking at, the number of members of these committees is a subject of some debate and contention. The difficulty we have is that we have a Parliament of 129 members. We have seen that, in practice, smaller committees tend to be more effective, more discursive and less adversarial, and actually quite productive as well. 17-2

When you've got a cross-party committee as we have, if we can reach agreement across the parties, then the power the committee has, and the impetus and the momentum it gains from reaching agreement, is tremendous. In previous sessions we found that committee agreement has propelled matters through Parliament without much dissent because all members have seen when we reach agreement at committee, that really gives us confidence that this is something worthwhile and that the political contention has been taken out of it. 17-3

Now the difficulty we have is that with the current numbers, to maintain proportionality it's very difficult with five parties and different numbers within the parties. It's very difficult to maintain small committees and be truly proportional. What we find is that when the smaller parties want to be represented on a committee, the larger parties want to have more members. So even though we started the process in the bureau of negotiating the size of committees with the intention of keeping them small, we found that in practice there were a few areas where they all wanted to be on the committees. 17-4

At the moment, as you know, we're obsessed with Brexit and other such issues. Everybody wanted to be on the committees dealing with Brexit, for example, and so instead of having committees of 7, we ended up with several committees of 11. It was impossible to maintain proportionality. That's one of the issues. 17-5

Another issue might be whether the committees themselves should have their own remit or whether they should reflect the make-up of the cabinet or the government brief. We use the term "shadow" sometimes to mean in opposition, and sometimes in the parliamentary context just to shadow a government area. If the government decides that they will reallocate various areas of responsibility, so that you might have both an environment minister and a rural affairs minister, then we have a debate in Parliament about whether our committees should reflect those ministerial briefs or whether we should actually just stick to our own agenda and have committees that might take evidence from two or three ministers, or two or three ministers might cross different agendas. That's an ongoing issue of which the commission might or might not make recommendations. 17-6

Those are just a couple of issues that have come up. 17-7

Senator Eggleton: Thank you, gentlemen, for your contributions to our deliberations. 18

Let me first of all ascertain the number of groups you have. I think you said there are five parties of five or more people. Do you have independent groups forming as well, or are all of your members tied to an established political party? 18-1

Mr. Macintosh: Thank you, Senator Eggleton. At the moment, everybody is in a political party, but past evidence suggests that may not be the case for the whole five years of this session. 19

I think I'm right in saying there have only been two members, Margo MacDonald and Dennis Canavan, who have actually been elected as independents. In 18 years now, through five elections and a number of by-elections, we have only had two MSPs of all those ever elected as independents directly, one in a constituency and one as a regional member on a list. 19-1

And that's perhaps a reflection of the fact that in Scotland, and in the U.K., the number of independents has declined in the last few decades. It used to be that, particularly in a local government or at the regional level, there would be a lot of independents, but that has really disappeared over the last few decades. 19-2

However, what tends to happen—and this happened in the last session and has happened in every session—is that at various points during the session, members fall out of favour with the party they are in and they either leave or have the whip withdrawn, as it's called here, and they become independents. In the last session, for example, I think we ended up with three independents as well, so that's the nature. 19-3

Senator Eggleton: Now, you don't have an official opposition, so do you think that has compromised the ability of opposition in general, holding ministers to account and the detailed examination of legislation from a critical eye? Do you think without an official opposition that you're missing something that could be valuable to you? Or do you think it works fine? 20

Mr. Macintosh: That is a very good question. There's no doubt that some have raised that question about the Parliament over the years. 21

To give you an idea, when we were first established, we were created by MPs in Westminster, and we were very deliberately set up with a system of proportional representation in a semicircular Parliament to have a different way of doing business. It was deliberately designed not to be that oppositional or confrontational design, which I actually noticed that your Senate and your House of Commons still keep, where the government is on one side and the opposition on the other. 21-1

We have taken the European model, where we sit in a semicircle, at least to reflect this idea that we are trying to seek agreement rather than opposing. And so we don't have, and have never had, the capitalized "Her Majesty's Official Opposition" that they have in Westminster, and that's deliberately so. 21-2

However, there's obviously a bigger question of whether that affects your ability to hold the government to account, and I certainly would hope not. All parties that are not in government are effectively opposition, or are in opposition, but there is no doubt that questions have been asked and various opposition parties have had greater or lesser impact in their duties. 21-3

I think it's an ongoing question. I don't think there's any move away from our more discursive, more collaborative approach and our emphasis on seeking a more consensual, cross-party way of doing business and going for a more oppositional way. In fact, I don't know if there's been any evidence submitted to the commission suggesting that's the way we could move, although there has been evidence about how we could improve accountability. 21-4

Senator Eggleton: If I may just go further on that, is there any lack of vigorous debate? Do you have vigorous debate on bills and vigorous scrutiny of them? 22

Mr. Grice: Yes, we do, in short. I think it has less to do with the structure of the opposition and much more to do with the nature of the legislation before Parliament. 23

A recent controversial example is something called "named person" legislation, which the government introduced and has indeed been the subject of some court cases. There has been very vigorous debate on that. The budget bill each year prompts very vigorous debate. 23-1

Although there isn't an official opposition, I would underline the point the Presiding Officer made, that all of those not in government regard themselves as essentially opposing the government. In my experience, scrutiny comes at maybe two or three different levels. You get the very high-level national political issues, and we're seeing plenty of those at present, not least because there's a U.K. general election in the offing, so you are seeing the tectonic plates, if you like, against each other. 23-2

You get local issues where you get members across parties actually, sometimes including government members, forming an opposition. Land reform would be a good example of that in the last Parliament. 23-3

And then you get technical scrutiny, which is what the committees tend to do at stage two. In my experience, that's mostly done on a cross-party basis, not exclusively, but I would say 75 per cent. 23-4

Although it's hard to say for certain that it has hampered scrutiny, I certainly think there's vigorous scrutiny, and in some cases very vigorous political opposition. It seems to me that's unaffected by whether we have somebody called an official opposition or not, and that would also be partly drawing on my experience and my time in London observing the U.K. Parliament, where, of course, they do have an official opposition. 23-5

Senator Eggleton: Thank you very much. 24

Senator Massicotte: Thank you for being with us this afternoon, or late afternoon for you. Senator Eggleton asked my initial question, so let me proceed to my second one. 25

The recommendation you have made is that you're creating a number of committees. How do you decide the membership of those committees? You mentioned proportionality earlier. How are the individual members selected and how are the officers—the chair and vice-chair—of those committees decided? 25-1

Mr. Macintosh: Thank you again, Senator Massicotte, for a question that we are addressing ourselves in the reform commission. 26

The number of committees we should have and the numbers that should be on those committees are negotiated through the Parliamentary Bureau that we talked about earlier, the body that I chair with the five business managers representing the five parties we have currently in the Parliament. 26-1

We decide the overall shape, in this case the 15 committees with a varying membership from 7 to 11. Once those committees have been agreed on or that shape has been agreed on, we then allocate the convenorships and deputy convenorships of each committee. We do that by using the D'Hondt proportionality method, which, in our Parliament, would go something like: government party, government party, Conservative opposition, government party, Labour opposition, Conservative opposition, government party, then Liberal. It goes on like that in a very mathematical formula, which would allocate, for the 15 committees, probably around about half to the government, perhaps four to the Conservatives, two to Labour. That's roughly it, something like that. The same with deputy convenorships. 26-2

We don't have much in the way of powers of patronage for the government or opposition whips or government business managers. They don't have many positions. The idea of what at Westminster is called a payroll vote, they don't really have that, but they do allocate members to committees. So they will allocate the convenorships, and they will allocate the members and the substitute members. 26-3

In the Scottish Parliament, MSPs will quite often serve on more than one committee. That is a particular area of concern because if you're on two or sometimes even three big committees, that's very difficult to manage. 26-4

The convenorships have been the subject of much debate for several years now because it's felt that if you want to differentiate between the government and the Parliament, then it's fine for the government to appoint the ministers and the cabinet secretaries and so on, but surely the committee conveners should be chosen by the Parliament itself. 26-5

What happens is that, in practice, the government nominates a person, and then the committees themselves elect. So they are elected by the committee. But there have been several suggestions, and we await with interest to see whether the commission will recommend that perhaps members should either self-nominate or be nominated from the Parliament itself rather than through party influence. We are awaiting the outcome of that deliberation. 26-6

Senator Massicotte: When you mentioned the mathematical formula, I presume that formula is based upon proportionality of those in the house? 27

Mr. Macintosh: That's exactly it: 129 members—63 government, 31 Conservative, 24 Labour. It's a formula that others have applied too. 28

Senator Massicotte: You mentioned earlier that the actual committees vote upon the officers of a committee. Is that a real, independent vote, a confidential vote, or is it automatic, based upon the recommendations of the groups or the caucuses? 29

Mr. Macintosh: First of all, it's a public vote. There is only one secret or private vote in the whole Parliament, and that's the election of the presiding officer—and the deputy presiding officers. That's right. Which is interesting, because I don't have any votes. I don't speak in debate and don't present questions. So it's quite clear that Parliament thinks that a secret ballot was right for the Presiding Officer, and the impartiality that goes with that is a real principle. 30

Committees have a public vote on who should be the convenor. But the nominations come, and everybody knows. It's not even a secret; it is expected that the parties nominate. They will actually look at who the SNP nomination for convener is, who the Liberal nomination for deputy convener is, but that's the bit that's now being questioned. 30-1

Senator Massicotte: Interestingly enough, under your legislation, you actually have committee review relative to the first vote, relative to the vote on the principle of a proposed law. That's certainly unusual to us, where we don't go to committee after the first vote. We go to committee on the second vote. Yet I gather the same committee often reviews after the first vote. They are also similarly implicated in doing the clause-by-clause review, being the second vote. Could you explain why you did that differently than most other legislatures? 31

Mr. Grice: Yes, senator. This was a very deliberate innovation back in 1999. First, we're a unicameral Parliament, and it ties a little bit into the presiding officer's point about the origins of this. Many of the politicians that established this Parliament, particularly Donald Dewar, who was a long-serving member of the House of Commons in London—I think he was very influenced by the fact that a lot of legislation, in his view, was introduced into the House of Commons in London under-prepared and with poor consultation. As you know, under their procedures, you go straight, more or less, to second reading debate on the principles of the bill. His very strong view, backed up by the Civic Forum and others that the presiding officer referred to, was that we should adopt a model much more inspired by, say, the Swedish Parliament, where you have a long period of consultation before the legislation is really considered in detail. The way we achieved that was to have bills immediately referred to a committee. 32

The first question the committee will ask itself is: To what extent has the government adequately consulted on this proposal? The committee then will often undertake its own consultation, and that will depend on how it judges the government has handled it. 32-1

The idea was to try to turn the process around so that there was a period of deliberation before we get into the line- by-line. Then that committee will produce a report to the whole plenary, with a recommendation as to the general principles of the bill and will observe any areas where it feels further work is needed. 32-2

You rightly say that the expectation is that that bill, assuming it passes the first-principles vote, will go back almost always to that same committee for clause-by-clause consideration. So it was a deliberate innovation, and the idea is to try to get the legislation as right as possible, as early as possible, in the legislative process. 32-3

Senator Massicotte: If you look at the U.K. experience, whereby stuff happens, as they say, and things go wrong, like the scandal in London relative to all kinds of personal expenses and personal benefits and public money, the consequence is that they created a committee of review—I forget the right name—where some third parties, some non-officials or non-colleagues, are reviewing certain procedures. It's like a non-committee, with third parties involved. 33

I notice from the structure you have that you are proposing creating a non-committee, but of members of Parliament only, without external review. 33-1

We see the same thing. We're often accused of basically protecting or deemed to be in a conflict of interest, and, therefore, we're protecting our colleagues; we're not being harsh enough;we're not being prudent enough with the spending of public money, and so on. So we are actually debating the implication of third parties to give a broad review. 33-2

I notice you are not proposing to do that, having the inclusion of outsiders on your audit committee. Could you give us your thoughts there on why that is the case and why you have not followed suit with many other legislatures? 33-3

Mr. Macintosh: Yes, absolutely. These are big issues for all parliaments to consider. The issue itself of how you apply internal and rigorous scrutiny I think we try to address through transparency. From the word go, we have tried to be as open as possible in all our affairs so that the public—although independent members may not be represented on particular parliamentary committees—can see all the questions that have been asked. They can see that the questions are being asked, to start with, but they can also follow all of the processes. 34

To take the expenses scandal that hit Westminster, for example, from the word go, we have had robust systems. All MSPs expenses are published, all of them. So you have to declare your salary, any income and any outside earnings. Everything has to be declared from the outset, constantly available for public inspection on the parliamentary website. 34-1

When you are claiming expenses, that's published for inspection, and it's raked over by journalists on a regular basis when it is. 34-2

The processes are there both to satisfy public accountability and also for members' own protection, to make sure that we robustly and rigorously live up to our own standards. So that's the approach we've taken. 34-3

There was an ability built in from the word go in the Parliament to appoint ex officio members to committees, but we've never used it because it became clear that the difficulty with that is who appoints them and what's their mandate? Everyone that has been elected to the Scottish Parliament has the mandate of being elected. 34-4

In theory you can talk about bringing on experts, people with a high calibre of independent thought, but as soon as you get down to the nitty-gritty of who they are, it becomes tricky. Who is appointing them? Does everyone around the group or the committee have to agree that they should be on? We've never gone down that route. 34-5

Instead, committees bring in external advisers on a regular basis, quite often having open forums where you don't have evidence sessions so much as discursive sessions where members sit amongst those who are giving evidence, sit alongside them, rather than the to and fro of giving evidence. 34-6

We have different ways of doing it, but we've never gone down the route of the independent system that you're suggesting. 34-7

Mr. Grice: I will add a couple of points. Yes, we've avoided IPSA, which is a body created at Westminster to administer all the expenses. I think that's right for this Parliament. IPSA is a big, cumbersome body. The Presiding Officer is right: We never had the expenses scandal in Scotland. 35

We have an advisory audit board that sits within Parliament and looks across our accounts. I report to that board as accountable officer. The parliamentary corporate body, which the Presiding Officer chairs, has two members on that committee, and three members are actually external. It's externally chaired. That's an important check and balance. They help steer our internal audit program and members' expenses are audited every year as part of that. They receive reports of our auditor. So there is an important check and balance there. 35-1

As I say, that committee has a majority of external members. It's not a public-facing committee but does provide an important check and balance. 35-2

Senator Gold: Welcome, gentlemen. This is fascinating. As my colleagues have already asked most of the questions I was going to ask, I will return to an earlier question of Senator Eggleton. 36

We have a constitutional obligation to ensure that government legislation is subject to proper critical scrutiny. You've talked about how you achieve that in the absence of an official opposition. What in your opinion are the key structures or rules in your Parliament that ensure that level of critical scrutiny of government business, whether it's the Parliamentary Bureau or the committees or rules about how bills progress through the legislative process? What are the most important institutional elements that provide for your success? 36-1

Mr. Macintosh: It's difficult, because I hesitate to name one particular process. For example, over the last 18 years, different elements in the Parliament have come to the fore. One example is the committees. Sir Paul mentioned a few minutes ago we don't have a second chamber. You have the benefit of the Senate. There is quite a large emphasis placed on the committees to fulfill that extra scrutiny function. 37

In the early days, the early sessions of the Parliament, they were seen to be the fore in that role. There was quite a lot of legislation. Committees can promote legislation themselves. They were quite powerful bodies. They were seen to be effective, possibly by contrast at that time to the way the House of Commons worked at Westminster. However, some of the criticism, whether it's deserved or accurate, is that in recent sessions, the committees have not been as dynamic or effective in holding the government to account. 37-1

I generally wouldn't wish to comment. I think the Parliament has adapted in different circumstances. It's a function of holding the government to account. There's been greater emphasis placed, for example, on the chamber and on opposition days. 37-2

We have First Minister's questions, which would be instantly recognizable to your own Prime Minister's questions or to the House of Commons. I think most parliaments have a variation on it. It can be fairly robust. At times, that forum can be more effective than others. 37-3

Then you've got the fact that we are open to the public and, therefore, the public have lots of ways into the Parliament, for example, through the petitions committee, also giving evidence, to raising issues of concern or slightly extraneously to cross-party groups, different ways of bringing issues and putting issues on the political agenda. 37-4

My experience tells me that at different stages over the last 18 years, different parts of our institution have come to the fore. 37-5

There is probably quite a big emphasis at the moment on boosting the committees, giving them a bit more independence. This is why, for example, we've got this big debate about whether conveners should be elected or appointed or nominated by parties. That's a reflection of that tension. 37-6

We also have a discussion around how many days the opposition parties get to choose the subject for debate in the plenary sessions. 37-7

These are the questions for debate. 37-8

Mr. Grice: I wanted to emphasize a point the presiding officer made. The political leadership of committees is absolutely vital. It would be invidious to name names, but my observation is the committees well led, whether it's by government or opposition backbencher, they set the tone and expectation of committees, and that's really important. 38

I would like to add one or two technical points that for me are a part of good scrutiny. There is the fact that there is an independent parliamentary service, particularly our research service, which we look to model on the House of Commons library, which is something I've long admired. We haven't had the 500 or 600 years to establish it; we have had to do it within a few months. We look to model it on that. 38-1

For example, every piece of legislation will have a report published by our research service. This has both the benefit of giving members help with the scrutiny process but also draws in the public. 38-2

Committees will typically appoint expert external advisers and that also brings it in. 38-3

A final novel idea we've looked at in the last few years is continuing professional development for members. This is something that members I think have taken to heart. The Presiding Officer has done sessions with members on his expectations for them. More recently we're doing sessions with members on how legislation is put together, getting advocates to come in from the legal side to help with questioning techniques. 38-4

None of these are as important as the political will to scrutinize, but they all help members to do that job better. I think that's work-in-progress, but those are ingredients that help good scrutiny. 38-5

Senator Gold: Thank you very much. 39

By way of observation, we would love to have members of committees capped at 11. Most of us sit on three or four. Chapeau to you for reining it in. That's what we're trying to do too. 39-1

Senator Dean: Thank you for joining us and for the sharing of information. 40

I want to dig into the Parliamentary Bureau concept. We have heard of the business management committee which would be styled in the same way as the Parliamentary Bureau. 40-1

As we contemplate that, could you share with us your advice on what in your view key success factors are for the operation of a Parliamentary Bureau or business management committee or the Parliamentary Bureau as it works to schedule the legislative work? What, in your experience, should we avoid and what should we consider as success factors? 40-2

There is a second question that might be related. You do want to work by consensus, and I think we'd all like to achieve that. You've mentioned there are some circumstances in which things go to a vote, which contemplates perceived winners and losers. 40-3

What happens beyond that, when there's a vote on a contentious issue where people have deeply held views, and to what extent does that contention play out in the processes beyond the vote? In particular, I'm wondering if there are opportunities for those who perceive they lost in the vote to either extend or to continue to challenge a legislative initiative. 40-4

Those may or may not be connected questions, but first of all, if you can tell us what the success factors are, what the failure factors are for you and what follows a voting process when it doesn't work that well or as desired. 40-5

Mr. Macintosh: I can only speak with a year's experience of chairing the bureau, although I have 18 years as an MSP. I'll start by observing what I think are the potential weaknesses of the bureau, and that is, dealing with a majority government. 41

I say that because in the very first two sessions of Parliament we had a majority government. It was a coalition. We had one party that made a formal agreement. The Labour Party and the Liberal Democrats formed a coalition pact. We had another majority government just in the last session. In each of these cases, because there are weighted votes in the bureau, whatever the government minister said, effectively that carried the day. The trouble is that the bureau is not really designed for a majority system. The bureau is designed to operate in a multi-party system. It's designed for multi-party work. 41-1

It hasn't struggled because it has always operated successfully, but it has had to adjust to different contexts. Some of the practices have reflected that, perhaps initially. 41-2

If I may go back, in 1999, a lot of senior MSPs had been MPs at Westminster, and they brought with them what I describe as "majoritarian" ways of working. They were used to Westminster ways of working, and they brought them with them and applied them in the bureau. So we've been working with that. One of the things I hope we'll look at after the commission reports is just looking at it afresh. 41-3

At the moment, the government is a minority, but a very large minority. They have 63 out of 129, so they're just short, but that's almost ideal because they've got the authority of government but they can't carry every vote. So the bureau, in my short experience of a year, literally produces what you might call "grown-up politics": mature reflection and members of the bureau who are willing to discuss and reach agreement without shouting at each other or immediately playing their trump cards and whatever else. The bureau is beginning to develop as an organization because of that. 41-4

I like it. It's a very quick body to get together in this Parliament. It takes decisions quickly. We sometimes have decent discussions. Sometimes we just say, "That's agreed." It's a practical-minded, business-focused body. 41-5

Those are the points I would make about the bureau. Given the weighting, it can bring the best out of most politicians. 41-6

On the opportunities for individuals, that's a tricky one. There are opportunities on an ongoing basis. For example, members can bring forward proposals. There are always opportunities for a member to stand up in the chamber, in plenary sessions or in committee and make their point. But we don't allow members to filibuster. You're not allowed to filibuster and talk a bill down or be obstructive. We are very much designed not to be oppositionist or obstructive in nature. We try to be positive and engaging in the way we do our politics. 41-7

One of the reasons I was actually a little bit late in coming here, in the chamber people raise what are called points of order. At the end of business or at certain points in the day, if they are annoyed, irritated, frustrated or boiling over and there's no room to speak or the debate is finished, they'll stand up and make a point of order and question through the chair whether or not a member is allowed to say something and the government was right to do something. 41-8

In three quarters or more of the cases, they are not genuine points of order. They're literally an opportunity for members to vent, and I listen to them. If it's a genuine point of order, I take it away and if not, we move on. 41-9

I would defend it because it is an opportunity for a member to say what they want and at least to get it officially on the record. 41-10

So, yes, if you were just one individual in this Parliament, you would find it difficult to operate. Even if you were less than a group of five, I think you would struggle. 41-11

In the last Parliament, the Green Party only had two members and they struggled because they're not in the bureau. They're not involved in all of the machinery that makes this Parliament operate and they don't have that status. I think they actually struggled. This Parliament is designed to allow members to make their voices heard but actually within a party system. 41-12

Mr. Grice: I would agree with everything the presiding officer has said. 42

As for the strengths of the bureau, and maybe one or two success factors—just observations—I think one of the real strengths is it has a touch of formality and it's the neutral chair in the person of the presiding officer and the neutral secretariat, if you like, in my staff. I think these are strengths, and the fact that although it doesn't meet in public, there is an openness to its procedures to members. I think that is a strength. Members know it exists. They know when it meets. They probably know where it meets. It's not a mysterious body. That, for me, is a really important point. 42-1

I think it's also a strength—and the presiding officer will be better placed than me to comment—that it actually provides a group of five very senior parliamentarians whom the presiding officer meets every week, both around the table and bilaterally, to give him advice so he can take the temperature around the Parliament. It's not expressed in the formal articles of the bureau—and obviously, the Presiding Officer can comment—but it has been my observation over the years that presiding officers have found that useful, especially in very challenging times. 42-2

I think one simple success factor would be acceptance of its proposals. If its recommendations on business to Parliament aren't repeatedly being challenged, I think you can take that as a proxy for members accepting its recommendations. And also, frankly, the business doesn't all pile up towards the end of session, because its job is also to liaise with the committees and others. 42-3

As to your specific question on process, if there has been a vote in the bureau, even if a party loses that, which does occasionally happen—votes are relatively rare—there is under Standing Orders an opportunity for that person to speak against the business program or to speak against a particular motion tabled by the bureau. That is built into Standing Orders and that's protected. Usually, as a courtesy the member will indicate if they intend to speak against it, and that's facilitated, which allows at least for that party to get their objection on the record ahead of the vote. 42-4

Hopefully that answers your specific question. 42-5

Senator Dean: That's very helpful. 43

Senator Bellemare: What we are hearing from you is very interesting. It looks like your debates are quite mature. 44

You don't seem to have much partisanship—in other words, parliamentarians don't feel the need to put their parties' political interests ahead of the public interest. You seem to have found a very collegial way of working together, where opposition serves a constructive purpose. How do you keep political interests from clouding your proceedings, particularly leading up to an election? Does the bureau play an even larger role in that respect? Does having a bureau like yours influence Parliament's ability to work in a constructive and mature manner? 44-1

Mr. Macintosh: Thank you very much. 45

Well, the interesting thing for now is that when I became presiding officer and set up the reform commission, I didn't have to revisit the original principles of Parliament. In other words, through all the different sessions of Parliament, and the different governments that have been elected, every one of them has abided by those original principles, which places a big emphasis on openness, on a consensual way of working, on working where possible across parties and not to be oppositionist and majoritarian in attitude. All the parties, even if they don't always abide by that in their behaviour—we are politicians, so don't be fooled; there is plenty of disagreement here, too—all the politicians elected to the Scottish Parliament often embrace these principles and repeat them. That by itself is a very powerful message. You'll constantly hear in debates here how proud we are of a different way of working, of trying to seek collaboration and consensus and of trying to work in a collegial manner. That will come out in members' language. 45-1

Yes, it's built into the organization—not just the bureau, which is the political one, but also the Scottish Parliament Corporate Body, which we haven't talked about. The corporate body looks at the mechanics of Parliament, all the support services that keep the Parliament running, including IT, the chamber desk, security, and so on. That works, again, on a cross-party basis and not on weighted votes in this case. There is quite a lot of collaborative working in all of our operations, constantly repeating that message. 45-2

This is just my interpretation, but probably underpinning that is that our voting system is proportional. It tends to produce a different makeup of political parties. We've only had one session in which one party has had an absolute majority. So there is a political need to reach out to other parties, as well as to the public to keep the public with you. 45-3

I'll be honest; I think that system underpins it all. It's arithmetic in the end. 45-4

As I said earlier, if you look at first ministers' questions on a weekly basis, you will recognize it as the usual partisan exchange of views that you get in every political system. 45-5

Senator Bellemare: I would like to ask you a pragmatic question to see how you dispose of those kinds of issues. How do you proceed to assess the different offices for the different members of Parliament? Who decides who will have the office or not? 46

Mr. Macintosh: In Parliament itself, or in government, one of the first decisions is electing a first minister. The First Minister then appoints ministers who have to be elected by Parliament. That's the government. 47

Within Parliament there is my own position, the Presiding Officer, and the two Deputy Presiding Officers. We are elected by secret ballot, in a runoff ballot immediately. That is the first election we have. Then the committee conveners, who are the only other parliamentary appointments I can think of, are nominated by the parties but elected by their own committee members. 47-1

Senator Bellemare: But you don't have a physical office in Parliament for each member? 48

Mr. Macintosh: Yes. Sorry. 49

Senator Bellemare: When a new election arrives, how do you collaborate to distribute the different physical offices in the building? It's a very pragmatic question. 50

Mr. Grice: That's a question close to my heart, so thank you for asking that, senator. 51

We spend a long time in the run-up to an election scenario planning as to all the different possible outcomes that might be, and we hope that one of them is about right. 51-1

Typically, we do a number of things. There are enough offices, one for every member. It's a question of who gets to sit where. We have a fairly well-established procedure. We go to the largest party and give them the first pick and then allocate a number of rooms. The allocation of the rooms we give to the party chief whips. That's such a controversial issue, namely, who gets to sit where. We delegate that to the parties and they can deal with the fallout. 51-2

We have a process that usually involves one of my colleagues brokering deals between the parties. We would only go to the Presiding Officer if we reached an impasse. By and large, we usually find a way to make everybody happy. It occasionally means putting a partition in here or an extra office in there, but we usually get around to that. 51-3

We follow the same process for where people sit in the chamber because that's only by convention. Again, the convention is that the biggest party gets to choose where they sit. They've always sat in the middle but they don't have to. Then the second-biggest party gets to choose where they sit, and so on. We produce diagrams and models to help them resolve that. 51-4

You said it was a pragmatic, practical question. By and large, that happens with good will all round and one or two late nights, but we usually get there within a day or two. 51-5

Mr. Macintosh: I should add, Senator Bellemare, that all our offices are very similar. This was a purpose-built building for the purposes of Parliament, so the offices are very similar. Unlike your Parliament, where you have prestigious offices near the chamber and others farther away, ours are very similar. 52

Mr. Grice: The views are better. 53

Mr. Macintosh: Yes; that's right. We're not fighting over a better or worse office. It's more about fighting who is next door. 54

Senator Frum: Thank you for participating in our committee today. I did appreciate, in response to the last question you received, the warning you gave not to fool ourselves about how mature and non-confrontational the Scottish Parliament really is. I'm looking at a headline of two months ago from The Express which states, in capital letters: 55

"'SIT DOWN!', Ruth Davidson brilliantly puts Sturgeon in her place in FURIOUS referendum row. 55-1

"NICOLA Sturgeon was left speechless after she was sensationally told to "sit down" by Scottish Conservative leader Ruth Davidson during a fiery debate in Scottish Parliament...." 55-2

I think that was a good warning, not to overstress the maturity you have. 55-3

I think one of the reasons some of my colleagues want you to share with us today your system is this idea that it is a more consultative and non-oppositional system. However, I think it's important in the context of what we're trying to do here, in the upper chamber in Canada, to point out there are very significant differences between an elected body and an appointed body such as our own. As you said, except for two exceptions, all of your members are members of partisan political parties in your chamber. 55-4

When I looked up "Ruth Davidson," she is referred to sometimes as the leader of the official opposition. I recognize that that's not an official term, but sometimes she's referred to as the leader of the main opposition party, because she is the head of the second-biggest party. Then the other leaders form opposition parties who have run against the governing party and have transparent agendas and ideologies. These are very significant differences to what we're trying to do here. 55-5

My question is about this idea that the leader of the second party is not the official opposition leader, but is it a de facto position? 55-6

Mr. Macintosh: It sort of is in the sense that, for example, we have a semi-circular chamber and the government sits in the middle. Over time we have established that the largest opposition party sits on their left. So the first thing that happened when the Conservatives overtook Labour as the largest opposition party was they swapped seats. So Labour moved across to the right-hand side of the chamber and the Conservatives moved to the left-hand side of the chamber. For example, when I choose questions, either First Minister's questions or in debate, you start off with the government party and then you automatically take the largest group. That's why they will use terms like "the main opposition." They are not an official opposition, but they are certainly the main opposition. 56

You wouldn't want to downplay the role of the other parties because the dynamic in our Parliament is interesting; it always has been. It's not a simple "them" and "us." The dynamic can quite often be all the other parties against the government. It can often be all the parties against the Conservatives because the Conservatives are then actually a proxy for the Conservative government at Westminster, and so you get a dynamic there. Sometimes you have internal alliances. So the pro-independence parties, which would be the SNP and the Greens, form a little group against the Liberal Democrats, Conservatives and Labour. 56-1

You get this different dynamic all the time and that's why it would be wrong for me to mislead you into thinking there's the government and the main opposition. It's not quite like that. They are the first called because they are the largest. It's because of the numbers of elected members they have, and therefore their physical presence. Because there are 31, there are just physically more of them, louder than the others, and that's the way it operates. 56-2

Senator Frum: I do take from that answer it is a highly oppositional body. The alliances shift depending on the issue, but you have proposers and opponents and it's an oppositional. 57

Mr. Macintosh: Yes, it is. There's no point in pretending that politics is not at times robust and confrontational. We try to put the emphasis on being collegiate, on trying to reach consensus and trying to work across party lines, but we recognize that can't always be agreed. 58

We wouldn't wish to impose or try to impose consensus where it doesn't exist. Sometimes you just need to take a view, have an alternative view, you have a vote and you decide. In the end it is a democracy and that's the way we work, too. We wouldn't wish to disguise that. We place the emphasis on working together, rather than at Westminster where you're facing the opposition and there is finger pointing and all the rest. 58-1

Senator Frum: Thank you so much. 59

The Chair: Gentlemen, how is your time? 60

Mr. Macintosh: I think Senator Dupuis and Senator Massicotte wanted two brief return questions. I think two quick questions. We want to help as much as we can. 61

Senator Massicotte: In fact it's a follow-up to the question of Senator Frum. I gather the objective of your mission relative to debate, even in your seating arrangement, is more collegial, less conflict-oriented. There's a commitment to really discuss the bills, and that's very good. I like that. You see that in a lot of organizations and it's the desired form of debate. 62

However, as we all know, that only works where every member is committed to the same cause, to the same objective, and if one goes off track or doesn't share the same objective it doesn't work. The teamwork falls apart, because if you're not committed to it, it's not going to work. 62-1

Senator Frum made reference to that. It occasionally occurs, but you have given us comfort that that does not take away from the quality of the debate to make sure you arrive at the right decision, the right bill or the right amended bill if needed. 62-2

Is that also the case for private members' bills? In other words, is that same objective always met and people always try to find a solution? Because if the person in power doesn't want to share or change their mind, then that whole theory falls apart. 62-3

Could you make some comments? 62-4

Mr. Macintosh: Yes. We just had a debate this afternoon, which was an opposition-day debate and they divided it into two. It was Conservative Party business. The first debate was on fishing and was highly contentious. It was quite an acrimonious debate. The Speaker, who is actually my deputy, was mostly in the chair and was intervening constantly trying to keep order. 63

I chaired the second debate, which was on education. The same members were in the chamber, but it was a far more consensual. They reached agreement and all the amendments accepted. 63-1

Even with the same members, on the same day, you can get different moods and different behaviours, in that sense. 63-2

One difficulty we have, and we're addressing now, is to develop the role of parliamentarians. I wouldn't say it was a capacity issue, but we have 129 members. We have the government and those who wish to be in government and those who are part of the opposition who want to be in government. What we don't have very much of is people who were former ministers, senior backbenchers, people who can take a slightly more detached constructive and critical view of parliamentary proceedings, and that's one of the things we're trying to develop. 63-3

This is the idea that on the backbenches we can have people who are still loyal to their own party group but can bring a different perspective. Unfortunately, that's one area where we have struggled. We look, I think, with a bit of envy to Westminster and perhaps parliaments like yours, where you have individuals who pride themselves on being occasionally a bit spiky or difficult or just having been around a long time, having seen it all and therefore being able to offer that perspective. We're looking to see how we can actually develop that capacity. 63-4

Mr. Grice: The process for private members' bills is almost identical to government bills. There's very little difference. We don't have a ballot as some jurisdictions do. Any member has the right to introduce a member's bill. They need to pass a certain threshold of support. Once they do that, actually it follows a remarkably similar process to a government bill. It would also go to the Parliamentary Bureau. The bureau is obliged to refer it to a relevant committee, and that committee is obliged to dispose of it. Obviously at the end of the day you've still got to get the votes to get through. 64

Private members' bills under our process are quite similar to other jurisdictions. They tend to focus on less controversial issues. They are rarely the big issues of the day, but they tend to be of great importance to certain sectors of the community or certain areas. The process is broadly the same. 64-1

We have a unit here in the Parliament—my staff—which is called a Non-Government Bills Unit, and their raison d'être is to support members to pursue their own members' legislation. That tries to bring the rigour, the legal support and the technical support to that process. 64-2

Senator Massicotte: Do they get voted upon as quickly as government bills? 65

Mr. Grice: Yes. They would be scheduled in exactly the same way. The bureau would typically refer a bill to a lead committee. By convention, the bureau sets a deadline for when that committee must report back at stage one, and if it survives a stage-one debate on the principles it will be referred to committee again with a deadline. 66

What you can't do under our system is talk out a member's bill. You can vote it down, but you can't talk it out. 66-1

Senator Massicotte: On a matter of order, when you schedule the discussion of a bill, per se, does anybody rise in the chamber at any point in time and make comments or give a speech on a certain bill, or is there what I call a bunching up, where people will know and the public will know that on this afternoon we will discuss this bill, and then maybe four days later we'll discuss it again? This could be for the sake of capturing the subject matter in one time frame for the member of Parliament because you'll be there, or for the public it would also be more interesting, or could anybody talk about any bill at any point in time without the specific order of discussion? 67

Mr. Grice: It's exactly your first example. It's all programmed and scheduled. I think the Presiding Officer referred to this earlier. You will typically know in the week ahead and the week after pretty much exactly what the business is going to be. 68

Obviously, each day Parliament has to look at it, and so there are urgent ministerial statements and topical questions selected by the presiding officer. But subject to that, you will know exactly what the business is going to be and pretty much how long that business will take. You usually won't know the individual members who will speak until the day of the debate, because the presiding officer takes that judgment, as I'm sure he does in your jurisdiction, in the context of each debate. 68-1

Senator Massicotte: Thank you. 69

Mr. Macintosh: I would just repeat that it's quite important to us that this is about sharing power with the people of Scotland. We want to be very clear. We're not just scheduling business for the benefit of the members. It's actually so the public can know exactly what's coming up and when. For the same reason, for example, all our votes happen at 5:00, at decision time, every day. We put all our votes at the same time. 70

Senator Dupuis: My question is for Mr. Grice. One of the things you said earlier really caught my attention: the fact that parliamentarians have access to a research service that provides an analysis of each bill and to professional development opportunities. That brings me to my question. Things are somewhat different in Canada with the arrival of the new senators, since professional development and research services are not provided by a political party. My understanding is that your Parliament has an institutional responsibility to provide certain support services to parliamentarians in their work, not just IT and telephone services. Is that right? 71

Mr. Grice: Yes is the short answer. It's not set out in law, if you like, but the Scottish Parliamentary Corporate Body that the Presiding Officer chairs has a duty to provide the staff and services required for the Parliament's purposes. That's what the legislation says. I'm, if you like, the chief officer of the Parliament. I regard it as my responsibility to provide every single member with as much support as we can. 72

The priority for our research service, first and foremost, is usually to support committee work, but they also deal with a whole range of individual inquiries. Any member can walk in, or a researcher working for that member can walk in, and we would aim to give them as much help and support as we could. I think that's a fundamental part of the parliamentary service across the piece. 72-1

The Chair: Gentlemen, on behalf of our committee, I would like to thank you very warmly for taking the time to share your insights and your experience with us. Please accept our thanks and appreciation. 73

Mr. Macintosh: Thank you, Senator McInnis. 74

The Chair: We now stand adjourned. 75

(The committee adjourned.) 76

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