Procedures Committee, 03 Apr 2001

Meeting date: Tuesday, April 3, 2001

Official Report 232KB pdf

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Private Bills (Guidance)

Item 1 is on guidance on private bills. We are joined by Bill Thomson, head of the chamber office, and David Cullum of the non-Executive bills unit. It would be appropriate for you to say a few words about the main thrust of the paper, Bill. Members will then ask questions.

Like the clerk to the committee, I am conscious that there is a considerable volume of material in the papers that have been circulated. I emphasise that the guidance has been drafted within the boundaries of the policy decisions that are set out in the committee's second report of 2000, on private legislation in the Scottish Parliament. That report led to the introduction of chapter 9A to the standing orders. In preparing the guidance, we came across one or two minor problems with the new standing orders, which will be addressed under agenda item 3.

The draft guidance refers to a number of determinations, most of which are to be made by the Presiding Officer—one has been made by the clerk and one requires to be made by the Scottish Parliamentary Corporate Body. One or two determinations have already been made, and work on the remainder is almost complete. We intend to submit those to the Presiding Officer for his consideration this week. The terms of the draft guidance necessarily anticipate the precise wording of the determinations, and may need to be adjusted if any changes are made in consultation with the Presiding Officer over the final form of those determinations.

Once the guidance and determinations are complete, the Parliament will be in a position to receive and consider its first private bills. Our aim is to reach that position by Easter. Our intention is that the guidance and the determinations then be made available to the interested parties, including potential promoters or objectors, and their agents, if they have any. We will review the documents in the light of experience and will report back to this committee if we consider that any substantial changes are required. Ideally, we would like to be in a position to publish a complete and more glossy revised set of documents by the end of the year.

With your permission, convener, I would like to take the opportunity to acknowledge the hard work of the remarkably small team of clerks and legal advisers who have been burning the candle at both ends to draft, critically assess and present the materials that are before members this morning.

The covering report that is before us is perfectly straightforward. The recommendation is to approve the guidance and to make appropriate arrangements—that is not for us, but the details will be printed later in the year, as Bill Thomson has explained.

The way for us to consider the guidance is probably to take it part by part, and for members to raise any points or concerns that they may have. If we are to proceed in that way, we will start with part 1 on page 2.

I have a question on the earlier stages of the process. As I recall, representatives of the sort of people who produce private bills were involved in the consultation. Were they also involved in the consultation on the guidance, or is it understood that they are reasonably happy?

Those representatives have seen all the drafts—several successive drafts. We have not received any formal comments, but we have been in touch with them throughout the process.

I hope that this comment does not come back to haunt me, but it may save time if I say that we are quite happy with what we see in the draft guidance.

In that case, I will now introduce the two or three questions that I have on the draft guidance. Other members can of course come in on the back of points that I raise.

My first points relate to paragraphs 2.15, 2.16 and 2.17 on page 6, and are about objection. The provision that has been made for the memorandum, the statement and the expectation of potential objection appears to attach only to people with heritable property, whereas many private bills will convey within them a planning consent. In handling a planning application, a local authority would allow an objection to be lodged by anyone who was interested, as opposed to anyone who had an interest. I could object to a planning application to lower the roof of Waverley station, for example, but if a private bill on such a matter had to satisfy the procedures before us, the requirement would be only to involve and accept representations from people who had a definable property interest.

That appears to apply again, at a later point in the paper, on page 11. Paragraph 3.1 covers the possibility for people to

"lodge an objection to a Private Bill which would adversely affect their interests."

In planning terms, people have a much wider remit to object than is covered under that paragraph. I am concerned that we may be narrowing the rights of people to object to something simply because they do not have a registrable property right.

There is no single answer to that point. The notification to people with an interest in heritable property is only one of the steps that the promoter will have to take. There are certain other people—different classes of interest—who have to be notified directly, and there is a requirement to advertise in the local press or, if the bill has national importance, to advertise nationally. It is not meant to be implied that only those who have a heritable property interest can object. The objection is competent if it comes from anyone who can establish that their interests will be adversely affected.

That is not defined in great detail in here, nor for that matter, as you will be well aware, are the specific categories of those who can object to planning applications. It would be a matter for the private bill committee ultimately to determine whether it took the view that an individual's interests were sufficiently adversely affected for them to be a competent objector. It is quite possible for the process to develop to allow people in the categories you are envisaging to have a right to be heard.

The matter arose again in paragraph 3.2, where it said that the committee would

"reject any objection where the objector … does not clearly show how they"—

that should be he or she, I suppose—

"will be adversely affected by the Bill".

I say that in deference to Mr Mylne, who is the protector of grammar in this morning's agenda.

The requirement to show adverse effect could be quite oppressive if it were interpreted in that way. I wonder whether it is appropriate for some addition to be made to the guidance to make it clear that the committee's interpretation of the categories need not be narrow and that it would, for example, be acceptable for an amenity group that did not have a direct involvement nonetheless to feel that its purpose entitled it to offer objections.

It is perfectly correct that we do that. The Private Legislation Procedure (Scotland) Act 1936 requires objectors to show that their interests are seriously and adversely affected. The committee, when it was considering its report, accepted that "seriously and adversely affected" was a rather complicated term and reduced it to "adversely affected"; however, we could incorporate a paragraph to expand the point that you have suggested.

Does that meet with the approval of the committee?

Members indicated agreement.

That is satisfactory.

Given our preoccupation with European conventions, we must be careful that we do not at any stage lay the Parliament open to the accusation that it excludes people with a right to object.

My next point concerns the content of paragraph 4.18 on page 17. I remember our agreeing to that at the previous stage, but it strikes me that its implication might not have been fully worked out. In that paragraph we talk about a reporter undertaking a site visit alone being an example of a meeting where all members were not expected to be present. From local authority experience, I can imagine a successful legal challenge to a licensing decision because it was framed on the basis of comments from a member who had conducted a site visit when other people on the relevant committee did not have the same information.

I am aware of a local authority that will not allow councillors to take part in deciding a planning application if they have not been on a site visit because it takes the view that if they have not been there, they do not have the information. I wonder whether that is not a wee bit of a hostage to fortune. It might be better to proceed without that sentence and let the committee, in the light of the circumstances of the time, work out what it wants to do in the case of less than full attendance. If we put the sentence in, we are almost inviting it to be done. If it is successfully challenged, the guidance is weakened.

Removing that is a matter for the committee. It is simply a statement of the current position that applies to all committees under standing orders. I see no problem in its being removed. However, we would expect a private bill committee to be properly advised at each stage of its proceedings. If such issues were relevant, I would expect them to be pointed out.

Does that sentence add anything to the guidance?

I felt that it added something, but I have no problem with its being deleted if the committee would prefer that. We would not lose anything.

I would prefer to remove the sentence. I am trying to find out whether you feel that we would lose anything by removing it. Other members may or may not agree.

I agree with you, convener. There is a difference between a committee acting in a judicial capacity and a committee considering an issue with a view to possible future legislation. In the latter case, a reporter and small groups making visits are helpful. However, when a committee is acting in a judicial capacity and a visit takes place, all committee members should participate. The group would be small anyway. The position should be all or nothing. I support the convener's contention.

The idea seems to command general support.

I have a query about paragraph 5.11 on page 22, which says that there is no right of appeal against the committee's decision. Are decisions open to judicial review?

Yes. I made myself a marginal note about that.

Should we include a caveat that decisions are subject to statutory judicial procedures?

Yes.

My next query is about paragraph 5.16. The Parliament has sometimes found itself caught by the approval of the general principles of a bill at stage 1 when in a stage 2 debate about whether certain amendments would be inadmissible because they might materially amend or delete one of the principal points. How flexible is the stage 2 procedure? In approving the principles of a private bill at stage 1, is there a risk that we cannot materially amend the bill at stage 2?

That depends on what you mean by materially amending the bill. The same rules that apply to wrecking amendments to public bills would apply to private bills. Approval of the general principles limits the scope of any activity at stage 2, but for good reason, because otherwise we could end up with an ill-defined procedure at stage 2. I do not think that there is any greater risk with private bills than there is with public bills. As the committee is aware, the process is designed as far as possible to bring private bill procedure within the normal rules of the Parliament's legislative process. I hope that that is one of its attractions. Therefore, the rules that apply to public bills, unless they are inoperable, will apply to private bills.

I understand that. If we find that we have a general difficulty, it will be tackled in the round.

I have a question—I am not really competent in the area. If Edinburgh presented a private bill for an underground railway system that was paid for in a particular way, could amendments say that we agree with the railway but want it to be funded by a private-public partnership, a trust or another method? Such amendments would be fairly fundamental. Are they possible in private legislation, or must we stick to the proposition, and if we do not like it, throw it out?

Such a bill would require a financial memorandum that would explain the funding basis. I do not think that it is certain that the funding basis would be set out in the bill. In some circumstances, a financial resolution might be required for a private bill. Only a member of the Executive could propose that. I find it difficult to understand why the bill might incorporate the funding process, but if it did, that would be open to amendment.

Given the sort of issues that are in dispute in relation to the London underground, the bill might require a body to be set up that would run the underground system. I wonder whether it is possible to make far-reaching amendments to private legislation.

Gentlemen on either side of me are dying to get in. In essence, the answer to that question is the same as the answer to the convener's previous question: the same rules that apply to public bills apply to private bills. It is difficult to answer abstract questions.

I appreciate that. Thank you.

Annexe E on page 69 deals with the pro forma for an objection to a private bill. The paperwork for the promoters asks them to specify their positions—for instance, whether they are the chairman of a company or something similar—but I could not quite understand what was meant by the position of an objector.

It is not intended to be a geographical or physical reference. We envision, as you suggested, that objections will come in from amenity bodies or unincorporated associations of other forms. It would be helpful to the parliamentary process to know whether the person signing the letter was a committee leader, a secretary or chairman of a body or whoever. If the letter has been sent by an individual, we would not expect there to be a reference to their position.

In that case, "position if applicable" might be a better form of words.

Yes. I do not think we have quite got the form right yet.

Subject to that small amendment, I am quite happy with it.

It is an area in which there will be a determination. Once that has been agreed, there may need to be some improvement to this annexe.

Do we accept the recommendation to approve the report with all the consequent implications?

Members indicated agreement.