Official Report 271KB pdf
I welcome to the committee the Minister for Transport, Tavish Scott, who is supported this afternoon by Frazer Henderson, who is the head of the bill team, Andrew Brown and Catherine Wilson, who are solicitors in the Scottish Executive, and Damian Sharp, who is the head of major projects for Transport Scotland.
It is important to recognise that there has been a positive response to the bill. We all recognise the benefits of removing transport projects from the private bills process, particularly those of us who have sat on private bill committees.
There is a measure of consensus about the bill, and I am pleased that, following the submission of evidence to us, Network Rail, the regional transport partnerships and the navigation authorities are to be statutory consultees. The evidence that we heard from Shetland Islands Council was probably instrumental in ensuring that the navigation authorities gained that status.
We might reflect on the other evening's members' business debate, which was secured by Bill Butler, on the Glasgow crossrail project. I said that I was from the school of decision making that Charlie Gordon illustrated in his speech. It might be strange for Charlie Gordon, Fergus Ewing and I all to agree, but we share a concern about the length of time that projects take to get through the process and come to fruition. I imagine that it is fair to say that all members agree. I would not be promoting the bill if I did not believe that we could achieve a better process for future Governments—of whatever persuasion. It is crucial that the bill does that.
If the bill is enacted, a major change—perhaps the major change—will be the replacement of the work of ad hoc committees of MSPs with the involvement of the Scottish Executive inquiry reporters unit, or SEIRU. That will mean that the delays that result from MSPs being restricted to meeting on a weekly cycle, broadly speaking, with various gaps for recesses will be avoided, as SEIRU will presumably be able to deal with an inquiry in a continuous period of one to three weeks. Is that your understanding of the main way in which we will make time savings in the national projects that come under the bill?
That is a reasonable and fair assessment of how time efficiency can be brought into the process. It is important to reflect on the fact that in carrying out its work, the inquiry reporters unit must ensure—and this is the Government's job—that the resources are available, in particular the skilled men and women who are able to conduct assessments.
Indeed. The consensus continues apace, minister.
Yes, it will be. It is Government's job to ensure that that happens. By the time the bill is an act of the Parliament—which will be, of course, subject to parliamentary approval—SEIRU will be in a position to take forward the work that it needs to take forward.
Finally, I want to focus on the nuts and bolts of SEIRU's approach to rail projects. How will it acquire expertise in a field in which I assume it has not been involved previously? Will it establish a unit of specialist advisers who are familiar with the delivery of rail projects? If that is not part of the plan, is there a plan to equip it with the expertise that will enable it to come to a reasoned and fair judgment in each case?
Yes. The plan is to bring in appropriate expertise. That has been built into SEIRU's operating business plan. The situation is equivalent to the way in which we developed expertise in Transport Scotland, for example, by bringing in highly able men and women to scale up the organisation to cope with the commercial pressures for which the organisation has responsibility and to deliver an extensive programme of transport improvements. Mr Ewing can take it that we plan to ensure that the necessary expertise is in place to allow SEIRU to do its job properly.
I might come back to you later with a question about heritage railways, but I will leave the matter there for the moment.
A number of heritage railways, including the Deeside light railway in my constituency, have contacted us about the bill. I am quite used to dealing with legislation in which ministers try to gather powers to themselves. However, with section 21 we are being asked to agree that powers—in this case, the power to make light railway orders—be taken away from the Scottish ministers. That is unique in my experience of considering legislation. The irony is that the light railway companies that have contacted the committee are concerned about ministers losing that power. As I understand it, the costs under the current system are quite low, whereas the companies will incur major costs under the system prescribed in the bill. What is the purpose of section 21? Why are you taking away that power? Moreover, will you give us more information about costs?
The straight answer to Mike Rumbles's first question is that we seek to treat all transport developments in the same way. The situation is similar to our management of road versus rail in the few brief years since 1999. Our focus is on ensuring that, as far as possible, we put in place the same procedures to deal with all transport developments. As with any other railway development, heritage railway projects can raise issues of noise, vibration and disturbance.
I am delighted to hear, minister, that there will not be any increase in costs for companies in relation to the Light Railways Act 1896. That addresses the fundamental point, and it is an excellent outcome.
No, I do not. Five per cent of cases is very low. It does not constitute a lot of transport projects in any one period. However, I understand Mike Rumbles's point and I assure him that the issue was debated extensively at the Procedures Committee.
I understand that entirely in the context of projects that are of national significance, because such projects would come back to the Parliament for scrutiny, so there would be public accountability. However, if the development was not of national significance, the minister would appoint a reporter who would simply report to the minister. The minister could say yea or nay to the development without the matter coming back to the Parliament. Accountability is the nub of the issue. For projects that are not of national significance, should not someone else consider the 5 per cent of cases in which there is a dispute between the reporter's findings and the minister's decision?
As I said, such an approach would put in place another hurdle for projects to overcome. We should distinguish between projects that are nationally significant and projects that are locally significant—
I am not talking about nationally significant projects.
A locally significant project would undoubtedly be included in the local transport strategy that the local authority and the regional transport partnership take forward. If a local authority promoted a proposal for a road, it would have to overcome a considerable number of hurdles in relation to the local inquiry. In addition, the minister with responsibility for transport would have to satisfy himself or herself that the correct procedures had been followed locally. If the reporter found against the local authority and the case was referred to the minister for a decision on whether to ratify or overturn the reporter's findings, the minister would be accountable to the Parliament for their decision. As Mr Rumbles knows from his experience in the Parliament, members rightly hold ministers to account, through all the mechanisms that we know and love.
If the inquiry reporters unit was considering the detail of a project to which the Executive was committed, could the reporter's remit make absolutely clear to the public that the Executive supported the project, so the reporter would consider not whether the project should go ahead but whether details of the project should be amended before it could go ahead?
From constituency work, we are familiar with cases in which the inquiry reporters unit has dealt with planning applications. It is clear that it is a quasi-judicial process. While you and I, convener, as members of the Scottish Parliament can write to the reporter to say, "Our constituent has written to us on this matter and we would be grateful if their comments were taken into account," reporters can airily chuck our letters into the bucket if they so choose. The process is independent, as it should be.
We have asked most witnesses what they see as a project of national significance. What do you understand by the term "national significance"? What is your definition of it? In what circumstances will ministers use their discretionary powers?
I appreciate that this is not the answer that is looked for but, as I said, that matter will be considered in Parliament as the Planning etc (Scotland) Bill is scrutinised, particularly at stage 2. Transport projects such as the M80 and the Edinburgh airport rail link—to name but two that are in our capital transport programme—are nationally significant. I cannot add to that today, because the precise definition is ultimately a matter for the Planning etc (Scotland) Bill. As I am sure Maureen Watt fully appreciates, the definition affects not only transport but infrastructure spending throughout the Executive.
What steps have officials taken to ensure that the Planning etc (Scotland) Bill and the Transport and Works (Scotland) Bill are complementary rather than contradictory?
That is a fair question. Officials have engaged at an appropriate level to ensure that transport is thought about carefully in relation to how the definition works. That will continue as we consider the Planning etc (Scotland) Bill at stage 2.
It has been said that the Transport and Works (Scotland) Bill is the English act with bells and whistles. Apart from section 21, the bill will give ministers more powers than the English act does. Why was it thought necessary to do that?
What I will say might be slightly unpopular south of the border, but I think that we have produced a better model. We have learned from how the system has worked at Westminster and we have taken advice on it. The bill team has contacted colleagues in the south to learn from the experiences of the Westminster mechanism.
Are you willing to share examples of the English legislation not being strong enough?
I cannot be drawn on that today, but I would be happy to reflect on that in correspondence, if that would help.
I will ask about triggering of public inquiries. I cannot—given our experience and the reason why the bill was introduced—conceive of a nationally significant transport measure that would attract no objections. The idea that we could dig a sod of ground anywhere and Friends of the Earth would not object is beyond the realms of possibility. However, should no objection be made, the bill will give the minister discretion to call in a proposal. If a transport proposal were nationally significant, would not it be better for the minister automatically to require a public inquiry?
That is a judgment call—ministers of the day would have to make an assessment based on the circumstances. We have achieved the right balance in leaving the potential for a minister simply to move a project forward in the circumstances that Michael McMahon described. That is probably the right judgment call in those circumstances.
I am not greatly concerned by the matter, but I want to press it further because clarification will be worth while. Why would an objection by a national park authority, local authority or landowner who is directly affected by proposals automatically trigger an inquiry, whereas a discretionary approach would be taken to an objection by the Scottish Environment Protection Agency or Scottish Natural Heritage?
The process would be triggered in compulsory purchase cases in which the promoter was seen in law to be removing a right.
I want to ask about the evidence that we heard from objectors last week on their experiences of processes. Do you accept that parity between objectors and promoters does not exist because much more significant resources are available to promoters than to objectors? Is there a way by which we can ensure that there is parity, or movement towards it, that will allow objectors to engage meaningfully in the process?
That is a genuinely difficult question. Paul Martin is right—obviously, if the Government is promoting a major rail or road project through Network Rail, Transport Scotland or a regional transport partnership, it can spend a lot to promote the relevant bill.
You mentioned front-loading the process. Objectors have expressed to us concern about the independence of processes. They are concerned that the outcomes of work will be contaminated because the promoter will be fiercely in favour of the project in question and will seek the outcome that it has proposed.
As the mechanism comes into being—subject, of course, to Parliament's approving it this year—the Government will look closely at the first stages of its introduction. We have been clear about that. If a transport project is being promoted by Network Rail, an RTP or Transport Scotland, the Government will closely check the adequacy of the process. If Paul Martin MSP was deeply unhappy on behalf of his constituents about something that was being done in that process I am sure that he would not be slow to raise it in Parliament. The minister of the day would receive direct representations and be under direct pressure.
During the preparation processes, if an organisation expressed concern, you would see yourself as the adjudicator and say that you had received information that the environmental study had not been carried out properly and so wanted to adjudicate. Would that happen before or after the reporter came in?
That would be part of the normal democratic process. Ministers are rightly accountable to Parliament, certainly in relation to transport projects that the Government is promoting. If the front-loaded process was seen as being deficient, it would be for the minister to ensure, and to demonstrate, that that was not the case. We need to strike a balance between what I might loosely call ministerial meddling and driving hard to streamline the process to make it more efficient, so that the Government of the day delivers the transport projects that it wants to deliver and has a mandate to do so. If an individual or group felt aggrieved that the process at the beginning of the project design was not adequate, the mechanisms that I have described would be available to them and, undoubtedly, a minister would be accountable.
I was interested in the minister's remarks in response to Paul Martin's question, given our experience last week when we heard from objectors to the tramline projects. You said that, under the new system of inquiries for major projects that you envisage, the reporter would have to examine the business case for a particular proposition. We do not have a final business case for the tramline projects–we were supposed to get one in December, but I believe that it will not be unveiled until April next year, which is more than a year after the bill completed the parliamentary process. When would the reporter examine the business case?
I am sorry; I should not mislead the committee. It is not the reporter's job to do what I expect Transport Scotland to do on the capital transport programme, which it will do whoever is minister for transport. It is Transport Scotland's job to ensure that the business case on every capital transport project is correct, robust and does what it says on the tin.
Following that helpful clarification, my next question is on the extent to which the business case will be a legitimate subject at an inquiry. To go back to the convener's question about remits, should it simply be said at the outset that the business case has been laid out by Transport Scotland, approved by the minister, endorsed by Parliament and that is that? Is it correct that inquiries will not involve arguments about whether proposals make economic sense or will represent value for money, although we may have discussions about that in the wider political theatre?
That is absolutely correct and is a fair understanding of what should happen. I simply add that, in certain circumstances, individual objectors may raise issues about, or may object formally to, statements in the business case. For example, an objector may ask about predicted passenger numbers for a particular mode and therefore call into question the modelling that has been used to justify the underlying principles in the business case. That is the sort of issue that I envisage might be raised. Whether the reporter chooses to take account of that will be a matter for them.
The issue takes us back to one of the fundamental points that arose in last week's evidence, which is the confusion between the principle and the detail—I used the business case as an illustration of that. Last week's evidence from objectors was clear that they and many other people who go to inquiries, such as the inquiry on the M74, or who come to private bill committees in Parliament think that we are here to debate the principle or that reporters are supposed to provide an independent Solomon-like judgment and that will be the end of the matter. However, the point that various committee members have tried to get across is that we have a process to take the decision in principle and then a process of inquiry. It would be helpful to the public to clarify that, because people confuse the two processes. The matter is not well understood.
That is a fair comment. Work needs to be done on that, perhaps as the bill goes through its formal proceedings. We might depend on our good friends in the press to get that line across clearly. Ultimately, if the Government says that it will do capital transport projects X, Y and Z, and if Parliament, through the mechanisms that we have described, endorses those projects, we are then into discussions about the detail of how the project will be delivered. David McLetchie makes an important distinction on which I agree.
I suggest that in any inquiry, that distinction must be reinforced at the outset. If the reporter starts to entertain wide-ranging debates about the principles or certain aspects of policy, that will serve only to increase confusion. If people are not ruled out of order, they will assume that what they are saying is in order.
Those are helpful remarks.
Convener, may I ask another helpful question?
Okay.
I do not understand wholly the need for legislation on voluntary purchase schemes, which is another issue that arose in last week's evidence session. Why do we need to legislate for such schemes?
During the passage of the Waverley Railway (Scotland) Bill, it was discovered that funds that Government provides to promoters for transport developments cannot be used to operate a voluntary purchase scheme. The bill will rectify that anomaly. We simply do not have the power, so we propose to create it.
What does a voluntary purchase scheme mean in this context? If I am promoting a scheme and I want to buy a bit of land, why cannot I just buy it? Why do I need a scheme? Why cannot I just tell the landowner that I will give them a certain amount of money for the 5 acres and then draw up a contract?
I am pleased that, voluntarily, Damian Sharp has come along to answer that question.
I would draw a distinction. With an advance purchase, the promoters identify what land they need to deliver a scheme. They can either simply negotiate an agreement or secure compulsory purchase powers. There is no doubt about the ability of promoters to do that, nor about the ability of Transport Scotland to fund that.
Are not the owners of properties that would be adversely affected able to gain compensation under land compensation legislation, which has been on the statute book for years?
They are able to gain compensation under that legislation in most cases, if the impact is to do with noise. However, that legislation is fairly restricted—in particular, it restricts claims for compensation to one year after the opening of the scheme in question. For example, a woman who had a disabled son needed to move because construction of a railway would have exacerbated his medical condition during that time, but the land compensation procedures do not cover that. There is no statutory means of dealing with such situations, so voluntary purchase is the only option. In that case, Scottish Borders Council had the powers to buy the property, but we had no means of funding the purchase under a voluntary purchase arrangement. That illustrates the anomaly that the provisions in the Transport and Works (Scotland) Bill seek to remedy.
In comparison with the other methods of land compensation, acquisition and so on, will the proposed mechanism, which we are being asked to approve as a provision of the bill, be confined to limited circumstances such as the exceptional circumstances that you have just outlined?
Transport Scotland has published a policy in relation to the circumstances that we would expect to apply to schemes that it funded. We have made it clear that there is an initial presumption against use of a voluntary purchase scheme, and that there needs to be proof of the need for one. The policy gives examples of the types of situation in which it would be appropriate for such a scheme to be used.
I have a question about access to land in advance of preparations being made for a project. You have helpfully supplied us with some draft Scottish statutory instruments, one of which concerns access to land. Network Rail has expressed concerns about access to land near operational railways. A person gaining access to that land would need to be accompanied by someone who had experience of operational railways, and would need permission to be on the railway. Would the access arrangements take account of such issues and the limitations on when access could be gained, given that the railway's operation should not be disrupted?
Yes. The convener has set out the types of circumstances in which we would envisage that the arrangements would take into account, for example, health and safety considerations and timing of access, given the timing of railway maintenance. The promoter might have to deal with Her Majesty's railway inspectorate.
The chairman of the Heritage Railway Association, Mr Ovenstone, expressed concern in a submission dated 22 August that if the procedure for making an order under the Light Railways Act 1896 is abolished, the cost of authorising Scottish heritage railways will increase. The minister was good enough to assure Mr Rumbles that, under the new regime,
I cannot add to what I said to Mr Rumbles, which is on the record. I meant what I said.
I appreciate that you seemed to give a copper-bottomed assurance, which I welcome. I push the matter only because James McCulloch, from the Scottish Executive inquiry reporters unit, told the committee at last week's meeting that fees would be based on the cost of the work that the reporters unit will be required to do. The minister's assurance appears to be at odds with Mr McCulloch's evidence, because it will be impossible to set a fixed fee if the fee is to be based on the amount of time that reporters spend on an inquiry. I hope that the fee will continue to be £1,250. Can the minister confirm that the Strathspey Railway Company, for example, would pay £1,250 under the new arrangements?
Advisers advise and ministers decide. I said what I said on the record and will say no more or less than that.
Your assurance does not appear to be as categorical as it first seemed to be, although I hope that I am wrong about that. Rule 17 of the draft Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 says, under the heading, "fees for applications":
I am staggered that Mr Ewing is trying to pluck defeat from the jaws of victory. I will not change what I said on the record. I said it—full stop.
I hope that that means what it seems to mean, although the minister will not be explicit—
Oh, come on—
If the minister says that the fee will be £1,250, which is what the Strathspey Railway Company wants to know, we will both have snatched victory from the jaws of defeat.
The minister has given his answer—
He could answer if he wanted to.
You have had about three tries at the minister. He has given the answer that he intended to give. I want to bring in Maureen Watt.
May I ask a brief question on the point that we have been discussing?
If it is to try to pursue the minister for an answer that he has already given, then you cannot. If it is a slightly different point, I will allow it.
I would not like the railway heritage people, who I presume are listening to this debate, to go away with the wrong impression.
They will be able to read the Official Report and see what the minister's answer is.
I want to follow on from what Michael McMahon and Paul Martin said about the role of ordinary members of the public in the planning process for projects of national significance. The minister said that if the front-loading process was regarded as deficient because people's expectations were not met, we would have to revisit it. However, we are at a stage now where we can build provisions into the bill.
It is important to recognise that people who do not get what they want are never happy. If I may say so, we all talk glibly at times about consultation. We in Government are criticised day in and day out, as are local government and community councils, for issuing endless reams of consultation. However, if there is consultation on a subject and a decision is then made that someone is against, they are, by definition, not happy about that. That is the nature of parliamentary democracy, local council democracy and all levels of representative democracy of which I am aware. Ultimately, we do not satisfy everyone—that is the nature of the process.
People are happy to be consulted, but the major reason why people end up so dissatisfied is that they are never told why what they have proposed is not possible—feedback on consultation is missing from many projects, national or local. We cannot just rubbish people and say that they will never be satisfied. There are situations in which all the consultees give their evidence but get no feedback, which results in much of the misunderstanding and the feeling that they have not been properly listened to.
I do not accept that people are never given answers. I suspect that people just do not like the answers that they are given. Those are two different issues. Whether we are ministers, MSPs or whatever, we all experience situations in which we make an argument and do not think that we have been given an answer, although the person, body, statutory consultee or whoever gives the answer clearly feels that they have answered fully and properly. That is how such processes are.
That brings us to the end of questions. I thank the minister for his evidence, and I thank his team of supporting officials.