Good morning and welcome to the second meeting in 2005 of the Procedures Committee. We have received apologies from Jamie McGrigor. I remind colleagues that we agreed at our last meeting to discuss items 4 and 5 in private.
I will kick off and my colleague, Nicol Stephen, will come in at the end. We will indicate our views in this preliminary part of the session. I appreciate that members want to question us on the subject.
My interest is in ensuring that we drive forward our programme of capital investment in better transport infrastructure. We must get things done and we must get projects delivered on time and to budget. The private bills process plays a vital role in scrutinising projects and ensuring that they are financially sound; however, it can also be a delaying factor if we do not progress bills quickly through Parliament or if a queue develops before bills can enter the parliamentary process. All of that is significant for the transport projects that we are promoting at present.
I thank Margaret Curran and Nicol Stephen for those helpful introductory remarks. Before I open up the discussion to general questions, will Margaret Curran expand on why the Executive prefers the model of the Transport and Works Act 1992 to the other models, in particular the semi-parliamentary model, which seems to have some of the benefits of the TWA approach while retaining some of the benefits of the existing private bills system?
I will go through a number of issues, and Colin Miller can come in after that. You can then tell us whether we have answered your questions. We envisage a system that involves order-making powers—which would be overseen by the Executive, but which would also undergo parliamentary scrutiny and approval at key points —for the big public transport infrastructure projects, such as tram and rail projects, much as has been described in the officials' report that members have seen. One of the advantages of that model is that it could be extended to cover a number of other sorts of project that are currently subject to procedures for which the Executive has responsibility. That would provide greater consistency of approach. For smaller projects, we think that it would be sufficient for Parliament to adopt a lighter role that would be broadly similar to its role under existing procedures.
There is an element of horses for courses for the various possible models. I am sure that the committee will always want to bear in mind a number of considerations, including the need for proper protection of the rights of private objectors and the need to streamline the system and make it more efficient—in other words, to make it work. There is also a need for proper parliamentary input.
I have a couple of questions. Like you, I am drawn to the TWA model for major transport infrastructure projects. There is an issue around navigation with offshore wind farms. There may be a need for one of the ministers to come forward with a statement of intent to Parliament, so that we do not have to have a private bill for every single offshore wind farm. We will need a private bills process for bills that are of a genuinely private nature, but I do not accept that a railway is a private interest—it is a public interest.
You might expect the Executive to suggest a procedure that is purely ministerial and which follows the approach that is taken with major roads schemes. However, if the Executive and Parliament work at this collectively, we can reach a sensible solution that continues to involve Parliament appropriately. Parliamentary involvement will achieve two important things, among others. The first is an element of independence from the Executive in terms of scrutiny of proposals, particularly if a scheme is promoted and largely funded by the Executive. Secondly, it will keep the pressure on to ensure that we deliver to a tight timescale, because the parliamentary process would be public.
Can I come in on the inquiry reporters unit, to which Karen Gillon referred? All the models have implications for, and require engagement with, the Executive's inquiry reporters unit. Karen Gillon is right about our having to focus on resources and to ensure that we get a turnout from them. I acknowledge that resources are an on-going issue. The unit's resources are stretched at present. I am advised that transfer of some posts from Parliament to the Executive would be necessary to cover the relevant transfer of business, but I cannot go into detail on that. We would have to pursue that matter. The alternative would be for Parliament to set up its own independent expert reporter service, but I think that Parliament would face the same problems because often it is access to the reporters that is important. We face challenges, but they are unavoidable—whatever model is used, the challenges must be faced.
I can see some challenging faces behind you, minister, but we will deal with that later.
I am used to that.
I am slightly confused by Nicol Stephen's comments about wanting to keep a parliamentary element within the process. I suggest that that would be a hybrid model rather than a TWA model. I do not know how you could have a TWA model with parliamentary involvement, other than for Parliament to approve general principles, perhaps.
As Margaret Curran said in her opening remarks and in her answer, we envisage a system with order-making powers that would be driven by the Executive, with parliamentary scrutiny and approval at key points for big public transport infrastructure projects, such as tram and rail projects. I think that the officials set out that view in their joint report, so they could probably elaborate on that. I agree with Karen Gillon that there are issues around defining what a big public transport project is, and when we would and would not want parliamentary involvement it. However, in the process that we suggest for the TWA model, the important thing is that, at key points in projects there would be parliamentary scrutiny and approval.
That point is not clear in our briefing paper, which says specifically that the model
We are obviously not aware of that. I will ask Colin Miller to clarify, because he was involved in the process.
Having spoken with Damian Sharp, one of the officials in the group, I think that what we were trying to do was to set out the issues, the options and the pros and cons associated with each of the models. We were certainly not trying to lead the committee or, for that matter, the ministers to any considered conclusion.
I would like to clear up one area of confusion. The problem for me—and, I suspect, for Karen Gillon—lies in the description of the TWA model, which is the model that you say you favour. According to our papers, the Executive will decide whether a scheme is of national or regional significance. The minister might then refer the matter to Parliament after which the Executive would decide whether to have a public inquiry. The minister can make the order without further reference to Parliament. If that is the proposal, I would no longer support a broad TWA model, because it would concentrate far too much power in the hands of ministers and the Executive, perhaps at the expense of objectors to a scheme. After all, any centralising of power must be balanced by mechanisms for people who might for whatever reason oppose a scheme.
Just to be helpful, I should say that I think that we all agree on this point. I have reread the description of the TWA model on page 4 of the private bills inquiry report and do not think that it reflects the model that we have suggested this morning. In our proposed model, there would be greater parliamentary involvement and powers would not rest completely with ministers. In my earlier remarks, I wanted to emphasise that we are not looking for an approach that gives the Executive all the power and requires minimal parliamentary involvement. However, we have not yet reached agreement on all this. We need to discuss the matter more with the committee and our ministerial colleagues before we reach a final position. That said, we believe that Parliament needs to be more involved in the process than the model that is set out in the paper would suggest.
So, to some extent, it would be a semi-parliamentary model, using orders rather than bills.
Yes.
Yes.
I simply wanted to clarify the difference between the model that you were endorsing this morning and the description of the TWA model in our papers. When you said that you endorse the first model, I was thinking, "Horror of horrors."
It is an important point.
I accept Nicol Stephen's comment that the proposal that he set out this morning is different from the model that is described in our papers.
Perhaps I should briefly clarify our position. We are simply saying that we favour the first model; we are not saying that issues such as the criteria for major infrastructure projects, how we do all this and so on have been finalised. This is a starting point for us; we are not attempting to impose a model on you without your permission.
I accept that it is a rough model. However, I want to be clear about the situation. Would the principles of a project that qualified for the TWA model first have to be approved by the Parliament? If decisions are not to be concentrated in ministers' hands, what would be the Parliament's role in the procedures for establishing an inquiry and making the order at the end of the process? Would the Parliament have a role in determining whether an inquiry would be held? In other words, is it the Executive's intention that at every critical point the matter would come before the Parliament?
We would want matters to come before the Parliament, but we would need to discuss the level of detail that would be put to the Parliament. This suggestion comes at a very early stage and we will be influenced by what the committee says about the matter, but I suggest that we would establish criteria and tests that would cause certain processes to kick in. Criteria would need to be established to allow anything to be referred anywhere, whether it would be the Parliament or the Executive that made the decision. It would be remiss of us to provide too much detail to the Parliament—
In case we could not handle it.
No. The decision might be straightforward and it might be obvious that certain things would happen. Clearly, a major infrastructure project would be referred and not necessarily the decision but the criteria that were used would be held to public account.
Are you saying that as an absolute minimum, in the first instance the general principles would come before the Parliament for approval?
I think that they would have to, would they not? I need officials who can give me the same advice.
This might not be the time or the place to go into all the detail. We are talking about the TWA model. In the current process for major transport projects, the decisions that the Executive takes when it makes an order do not come before the Parliament—they are the responsibility of the minister. However, we should remember that ministers—whatever their portfolio—are accountable to the Parliament for their decisions.
You talked about what happens when the order-making procedure is followed. Currently the order-making process does not include a general principles stage, because there is no bill. We would move away from a bill process to an order-making process. It is up to us to create a new process. Everyone accepts that we will require legislation, at least in the medium term. We might be able to work with standing orders and increased resources to improve and speed the current system, but we will need legislation, so the responsibility for all of us is to create a new procedure that is effective for Scotland in the 21st century. We can go for an order-making process, but we may want to have an initial stage for parliamentary approval and involvement. If members are concerned about a reporter going off for what might be a long period—six to nine months—before producing a final report and about there being no ministerial or parliamentary involvement during that process or before the reporter's findings return to us, we could find a way to involve MSPs or ministers in that process.
We have got that bit.
That is fine. I will stop there.
Having been a member of the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill Committee, I have a particular interest in the matter. For all that committee's good work, my experience was that having greater parliamentary scrutiny and involvement does not always equate to more thorough or effective scrutiny. That is not because of a lack of work by committee members or a lack of parliamentary resources, but because of the sheer complexity of the issues, some of which people need engineering degrees to get to grips with. That is why members of that committee—including its convener, Bill Butler, who gave us evidence—were in favour of more expert involvement at least and it is why I had few problems with the TWA procedure as described in our paper. However, I am happy to consider a TWA-plus.
I think that that is right. It is not a general principles stage, but we might call it that. It introduces something new into the order-making process.
This new system?
We might well come to call the new system the general principles stage. It is up to us what we create and what we call it. However, it is too early for us to commit. We want to have discussions with the committee and with the various transport spokespeople to come up with a system that will work.
That is a useful elaboration. Some dialogue will be needed on this issue. There should be flexibility in the approach so that we can ensure that account is taken of what the Parliament thinks is important. I know that, once the general principles of the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill had been approved, there was little room for manoeuvre at the consideration stage. I am glad to hear what the minister says about the dialogue, which will be useful.
I was going to suggest that we consider the wider issues to do with the longer-term or medium-term solution before dealing with any changes that the minister might want to make to the present standing orders.
That is exactly what I was going to say. We need to think about making changes to the standing orders to enable the Parliament to deal with the immediate challenges, but the way in which we manage the process from this point depends on what this committee's conclusions are.
Minister for Parliamentary Business, at the start—
Is that my Sunday name, Mark?
I would call you simply "minister", but there are multiple ministers present. Margaret Curran, at the start—[Laughter.]
Big Mags, as I am normally known.
Earlier, you said that you were looking to learn from the experiences of other Parliaments and from the workings of the Transport and Works Act 1992. In that regard, I am struck by the report of the consultants that were hired by the House of Lords to examine the operation of the 1992 act. It seems to me that the model that you are proposing is more similar to the amendments to the 1992 act that were proposed in the report than to the TWA model that is described in our papers. The consultants' report states:
Maybe. I am not sure which part you are referring to.
I refer to the section on parliamentary scrutiny in the MVA consultants' report on TWA orders.
It certainly sounds similar.
The report was circulated with the papers for the meeting. It is paper PR/S2/05/2/3.
I appreciate that you have the paper before you. Obviously, officials have been looking at what happened in England and Wales, where there have been amendments. We want to find out how effective those amendments were. Our proposals, notwithstanding that some of the details still need to be ironed out, have borrowed from what happened in England and Wales but they are not an absolute copy. They are adapted to our circumstances. Colin Miller has more of the details.
The section on parliamentary scrutiny in the MVA report recommends that
There will need to be discussion between the Parliament and the Executive on the issue, but if the Parliament expressed a clear wish to be involved in a scheme, I find it difficult to believe, under the model that we are developing, that the Executive would wish to resist that or would seek powers to resist that. However, we need to discuss those issues. If there are to be a number of such schemes, the Parliament will want to take a sensible approach to the volume of schemes that go through parliamentary procedure. It could be that a scheme that is relatively low in value would nevertheless be regarded by parliamentarians as significant in terms of the national interest. Therefore, there should be a power to bring such a scheme into the parliamentary system.
I am conscious that we are under some pressure of time and we need to move on to consider some of the more immediate changes to standing orders that we might need to make. Are there any final, brief questions on the wider issue?
I will try to be brief. Given that there seems to be some acceptance that there will be some form of parliamentary approval of general principles, which will have another name—big Mags's seal of approval, or whatever we want to call it—I invite the ministers to give their thoughts on the requirement for pre-consultation on proposals. If they believe that there should be some form of pre-consultation, particularly on Executive bills, where does that fit into the parliamentary process? Should it take place before or after the approval of general principles?
In any project—whether it is a roads project or a public transport project, and whether it goes through the current order-making procedures or through the parliamentary bill process—there is a requirement on the promoter, in the case of a parliamentary bill, or on the Executive, in the case of major road schemes or other schemes that we promote, to have public consultation. The public consultation tends to have an informal stage and later, immediately before the finalisation of the scheme, a formal stage. It is certainly the case that bills that currently come before the Parliament go through formal public consultation and there is formal public consultation on road schemes at the draft order stage, before we move to final orders. We envisage that that will continue.
Do you envisage the informal consultation exercise taking place prior to some form of approval in principle and the formal consultation taking place before the final order?
Not necessarily. It would very much depend on the scale of the scheme. We must design a scheme that is proportionate and ensure that the mechanisms for it are proportionate to the task in hand.
That is why it is necessary to get the timing of events right.
As I understand it, in the private bill process—Richard Baker and some other members will know more about the details because they have had direct involvement—objectors have an opportunity to come to give their views to the committee. That is the stage for formal consultation.
I will raise two points. We must consider the issue of consultation by whom. Consultation by the promoter needs to take place before a formal proposal is made, or at least a lot of it needs to take place before a formal proposal is made. One of the weaknesses of the private bill system is that the guidance on what consultation there is with whom is very loose. Much is left to the discretion of the promoter. As the process is new and there are no precedents, that has been a major problem for promoters and it has also had an impact on objectors. The process has not always been got right because everyone was learning as they went along. It would be helpful to establish clearer guidance about what consultation the promoter needs to undertake in the new process.
We are in danger of making the matter unnecessarily complicated for ourselves. It seems quite simple to me. I do not think that how we do this is rocket science. We would not be in the position of considering a rail link unless there had been major public lobbying for it, public demand for it and political consultation. Executives do not spend £X million just because they think that it would be a good idea to put a railway from A to B; they are pressured into doing so for whatever reason. We are kidding ourselves if we think that an Executive will suddenly decide to build a railway somewhere. There has usually been a 20-year campaign before we get to that point.
In light of our discussion, without committing ourselves to going down a particular route, I think that it might be helpful if the officials could meet again to work up the ideas that have been mentioned into an outline proposal. Committee members should at least have that before them before making a decision. Are the ministers happy with that?
Yes.
Yes.
Moving on, I want to ask the ministers whether they have any issues to bring to our attention about how the Parliament's standing orders could be streamlined to help the private bills that are in the immediate pipeline. Obviously, we cannot do much about the bills that are currently going through Parliament, but it would be helpful to know whether we can do anything to assist the bills that are due to hit us in the next few months.
I was going to make that point. It is important that we make some headway on the standing orders because of the immediate challenges that we face. The timescales are quite tight, because we need to build in some time for consulting key players along the way. I am advised that we need all this done and dusted for next May if at all possible.
Do you mean May 2005 or May 2006?
Sorry, May 2005.
Do members have any other questions on that aspect, or are they happy that the officials should consider those issues and report back to our next meeting with recommendations on the standing orders changes and other changes that are necessary to streamline the process? Are members content with that?
If recommendations to go down specific routes are made, the justification for those should be contained within a paper.
I meant to say that the officials should make proposals rather than recommendations, as it is for us to make recommendations.
As there are no other questions for the ministers or their officials, I thank them very much for what has been a useful session. I look forward to further discussions on the subject over the next few weeks and months.
I have about 32 notes from the clerk. Are we talking about PR/S2/05/2/16?
That is one of the papers; the other is PR/S2/05/2/2. I am now told that PR/S2/05/2/16 is separate from the annex in the first paper.
Given what the ministers said and the line of questioning, will we go for a TWA model, a semi-parliamentary model or a TWA model with parliamentary knobs on?
The ministers will clarify that.
I suspect that it is for us to clarify that.
We have asked the officials to consider the TWA-plus model, which would require some involvement by the Parliament at an early stage on the general principles of a major scheme and then parliamentary approval of the final order at the end of the process. I think that that is what the ministers were talking about. In essence, that is a hybrid of the semi-parliamentary model and the TWA model, but using orders rather than bills. That may just be a technical detail.
I am not worried about what we call it; I was just asking about which of the three models we will go for.
We have asked the officials to draw up an outline of how that proposal would work, which we can consider as an option. That option would require legislation, so obviously it cannot be in place by May 2005, which means that we must consider what other changes we might make to standing orders for the bills that are in the immediate pipeline.
I do not want to be cynical, but what difference will the fees issue make at this stage?
The question is whether the fees as currently set cover what they are intended to cover. Any change will not make a difference to the speed of the process.
I understand why we might wish to iron out major problems in the process, but I would like to see the justification for any changes. I am not against considering changes and implementing them if they are feasible, but I am wary of changing the procedure to expedite a particular matter, given that we are talking about possibly changing the legislation anyway. My concern is that, if the changes are about anything more than good governance or making it easier to deal with private bills, we might create unintended consequences by straying into those areas. I would like to understand the rationale behind any changes.
Paper PR/S2/05/2/16 outlines the issues of fees and costs under the heading "Issue 1". Essentially, the promoter's fees are a matter for the Scottish Parliamentary Corporate Body. Although, in principle, they are intended to meet the costs to the Parliament of the bill, at present they are meeting only roughly half the cost to the Parliament of processing the bill. That is a matter for the corporate body.
We need to sort out issues 2 and 3 in the paper—the issues of statutory consultees and the environmental statement. We are in danger of being outwith the laws that we seek to introduce if we do not sort those two issues out.
The other issues might be considered when a new process is set up. That would be more appropriate.
The final issue—issue 4 in the paper—is whether the outline business case should become an accompanying document. We could say yes, it absolutely should, but that would have implications for timescales and other things. I suggest that we consult further the bodies that would be affected—the promoters and the Executive, in particular—on the impact that that change would have on the process, so that we are aware of the implications when we make a decision.
If the suggestion has come about because of particular pressures that will arise around May—that is my understanding of the previous conversation—I wonder whether we should consider that issue when the new process is set up. If we are not complying with statute just now, we must change that, and the changes that are suggested under issues 2 and 3 could be reasonably easily made. In an ideal world, the outline business case would be stated up front—there is little argument against that. However, the question is whether now is the time to change the process.
I suggested that we might consult so that we could find out whether it is feasible to require the outline business case to be stated up front. If it is feasible, there is no reason why we should not ask for it to be done. We can write to ask people about it now; I am not suggesting anything more than that.
I have a couple of points of clarification in response to the questions that Bruce McFee has asked. First, paper PR/S2/05/2/2, which contains an annex of the various standing orders issues that might be considered by the committee, is meant to include a range of concerns that have been raised either in evidence or through the experience of officials in the private bills unit of dealing with bills so far. It is not suggested that it is important that all the issues here are dealt with in the May timescale; they are not necessarily all issues that would particularly smooth the passage of forthcoming bills. It may be a question of prioritising some of them on the basis that they will have a greater impact on the next tranche of bills coming through.
Did you say that the paper was meant to include those issues?
We have drawn up the list to include as many of the issues that have been raised as we are aware of. Some of them may or may not have a particular impact on speeding up bills coming forward in May.
We can find our own euphemisms for it.
The three suggestions that would speed up the process come under the heading "Standing Order issues" in the note by the clerk about the remainder of the inquiry, under the subheading "Private Bill Committee (9A.5)". They are about the number of members on a private bill committee, the rules on who may take part in a private bill committee and the question:
I do not think that changing any of those would have an impact in the longer term. I am thinking of when the decisions on those issues were made. I know about the decision on the number of members on private bill committees, but I am not sure about the current restrictions on MSPs, which I think is a matter for determination by the legal office, rather than one that comes under the standing orders.
That is in standing orders.
It is a bit of both: it partly concerns potential conflicts of interest and challenge. The question whether private bill committees can meet at the same time as the Parliament would involve a change to the existing standing order that states that no committee may do so.
We seem to be making this more complicated as we go on. The committee seems to favour a system similar to that which operates under the Transport and Works Act 1992, and we are going to get more detail on that. Many of the more complicated private bills have been to do with transport. We should wait until we have seen the model before we change anything. As we said earlier, let us do anything that has to be done, but it would not be fair to the general public if we simply went and started changing things, whether that involved fees or the different stages of consideration, if they are just going to change again sometime later in the year.
Things will not be changing later in the year. A private bill being considered in the current session will probably not be affected by any potential legislation. By the time new legislation gets drafted and goes through the Parliament, it would probably not hit until—
So when would it be—
The next session, starting in 2007, would be—
Would it be as late as that?
Legislation might take effect marginally earlier, but not much. It would take at least a year for such a bill to be passed. Even if we agreed today what we wanted, it would still take that amount of time to pass a bill, considering the time it would take to draft it and to go through the whole parliamentary process and so on. New legislation will not affect at least two of the private bills that are yet to be introduced, and possibly up to four bills that might come in later. We need to identify any amendments that we could make to standing orders to make them more effective and to streamline the process—"ease the passage" is not quite the right phrase—to make it less burdensome on the Parliament and to make more effective use of parliamentarians' time.
A bill does not need to take that length of time, but it can if we want it to.
I think it will take that amount of time.
We need to establish cross-party consensus on the way forward. If we can do that, we will get any bill through the Parliament quicker than would be the case if there was no such consensus. It can be done if we want to do it—we did it before, with the Commissioner for Children and Young People (Scotland) Bill.
I accept those points.
I have no problems with what Karen Gillon says. Such requirements apply to road orders and nobody would dream of submitting one without taking them into account.
Are committee members of the view that we should consider the number of members on private bill committees?
Are we suggesting that they should have three members, one member or something else?
Three, probably.
How could we work with that? I presume that the current number is five members so that there will be a quorum.
All members of a private bill committee have to be present; that is the big issue. That is one of the problems with private bills, as Richard Baker can testify.
I know where Cathie Craigie is coming from about the need for a quorum. The fact is that the issues are so complicated that, a lot of the time that the committee is questioning and stuff, the clerks are advising on the detail of the questioning. The same goes for gathering evidence. If we can get a cross-party balance, three members would be adequate; with five members, the additional two members only repeat the same knowledge and ability to question and scrutinise.
Why not require that a minimum of three committee members must be present?
Everybody needs to be present, for the sake of objectors and because of the legal process, apparently.
Why? That is not the case for any other type of bill in the Parliament, so why do all committee members need to be present at a private bill committee?
That is what the clerks advised me when I was a member of the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill Committee.
But why? Why is that the case and why can we not amend the standing orders to say that there should be five members of the committee and that only three need to be present at any one time?
I suggest that we put that forward for our report. We are not making decisions today, but determining what we want to examine. I suggest that we ask the officials group to consider the number of members on private bill committees; how many must be present; whether they all have to be present and the reasons why; and the current restrictions on membership of a private bill committee, which are causing problems in establishing some committees.
I would not be in favour of changing the rules to allow conflicts of interest.
I accept that, Bruce. The present rule is wide. There was a recent case in which a member had to come off the Waverley Railway (Scotland) Bill Committee because he had been a member of a council that had previously voted in favour of the principle of a Borders railway link. There is an issue with that; most of the parties around this table are in favour of a Borders railway link, so where do we draw the line? We need to check why the current restrictions are in place and whether they are appropriate or too narrowly drawn.
We need to know the rationale for those restrictions. Presumably, in the not too distant past, members thought that it was a good idea to have the rules as they stand. I want to see the justification for the rules, other than that they simply expedite business.
I agree. I am suggesting not that we make changes just for the sake of it, but that we ask the officials group to look into the matter and to explain the rationale behind the existing position and the implications of any change to the numbers of members and the current restrictions on membership.
I am relaxed about that.
It is a timetabling issue and an issue for all committees. I thought that we were going to consider that later in the year.
We are talking about whether private bill committees should be treated as a special case. I am not asking us to make a decision on that; I am saying only that we should consider that as an option.
It is worth while considering that.
That is what I am suggesting.
Consideration of objections was not the biggest draw on our time. Once they were grouped together, they were not the biggest drawback. However, I certainly think that it is worth considering that.
From my understanding of what has been said, we have to bring in changes ahead of the next bills that will be introduced. If this agenda gets bigger and bigger, we will not be able to do that.
I accept that. I am just trying to focus on what the key issues are.
We discussed the key issues, which are the environmental statement and looking at the make-up of the committee.
I am aware that there is time pressure, which is why I wanted to check what the position was. Are members content to consider those issues?