Local Government and Transport Committee, 05 Oct 2004

Meeting date: Tuesday, October 5, 2004

Official Report 297KB pdf

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Subordinate Legislation

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Scotland Act 1998 (Modifications of Schedule 5) Order 2004 (Draft)

The Minister for Transport, Nicol Stephen, has come along to take part in our debate under item 4. The draft Scotland Act 1998 (Modifications of Schedule 5) Order 2004 was laid under the affirmative procedure, which means that the Parliament must approve the instrument before its provisions come into force.

As is normal practice, members may ask questions of the minister and his officials prior to the start of the formal debate, in which the officials may not participate. I ask the minister to make his introductory remarks as concise as possible—some of us, including the minister, have pressing diary engagements—but if members have a significant number of questions, he and his officials will be given every opportunity to answer them. The minister will have a further opportunity to speak when we move to the formal debate.

It is a great pleasure to attend the committee for the first time in this new venue. Let me introduce my officials. On my left is Andy Bishop, who is the head of the Executive's science and higher education research branch. Next to him is Ian Turner, who is a railway policy official. Beside me, on my right, is Laurence Sullivan, who is from the office of the solicitor to the Scottish Executive. Richard Hadfield is from the transport bill team. No doubt the committee will see a lot of those individuals over the next few months as the bill progresses. Finally, Paul Allen is the head of the constitutional policy unit.

The draft order, which is made under section 30 of the Scotland Act 1998, has three aspects. First, it clears up a mistake, or technical defect, in the European Parliamentary Elections Act 2002. The UK Government has agreed that, as this presents the first opportunity to rectify the mistake, it makes sense to use the draft section 30 order as the vehicle to correct the problem. However, I will not go into the details of that, as the convener asked me to keep my remarks brief.

Secondly, the draft order deals with the arts and humanities research council—the AHRC—which was the subject of a Sewel motion. After a full discussion of the issue on 27 January 2004, the Enterprise and Culture Committee agreed without division that the process should go ahead. The research community in Scotland strongly supports the idea that Scottish research should be funded through a UK-wide AHRC, as is proposed in the draft section 30 order.

Thirdly, the draft order deals with rail transport. As part of the restructuring of the railways, greater responsibility for rail is being devolved to Scotland. In part, that will enable us to drive through change under our transport bill, which will come before the committee after it is introduced to the Parliament in the next few months. Some changes to the rail industry will result from the UK legislation that will follow on from the Department for Transport white paper that set out the conclusions of the rail review. However, one element of the proposed changes—indeed, every element—requires co-operation between the UK Government and the Scottish Executive. The draft section 30 order must pass through both houses of the Westminster Parliament and through the Scottish Parliament before legislative competence for rail can be devolved to the Scottish Parliament. The draft order will allow Scottish ministers to take responsibility for the rail powers that will be transferred from Strathclyde Passenger Transport.

That transfer of powers to Scottish ministers in relation to the ScotRail franchise is one part of the jigsaw. The proposals for the transfer of rail powers across the rest of Scotland are contained in the UK white paper. Subsequently, they will be transferred through UK legislation.

I have set out the three elements that are involved. The section 30 order will allow the Parliament to legislate in due course on the transfer of rail powers to Scottish ministers. That will allow us to become a formal participant in and signatory of the ScotRail franchise in Scotland.

Thank you for that concise statement, minister. I am sure that it will help us to understand the instrument. We move to questions.

My question is not entirely tongue in cheek, minister. You said that a mistake had been made in the European Parliamentary Elections Act 2002, which was being corrected—I am sure that all of us recognise the need for that to be done. Of course, until the mistake is corrected, it exists. Does that mean that the legal power to hold European elections—indeed to hold this year's elections—was not in fact reserved to Westminster? Surely, unless something is reserved, it is devolved? In other words, I suggest that the power to hold European elections was a devolved matter. Surely the absence of a Scottish Parliament European elections act means that the holding of the European elections was illegal—or at least as far as Scotland is concerned—and so the result is void?

I ask Paul Allen to comment.

The answer is no. The only bit of the act that we are changing is the interpretation provision, which was not updated when it went through Westminster in 2002. We take the view that, as the interpretation provision is, in effect, vacant, the courts would take a commonsense view of the matter. They would consider the act that had been replaced in schedule 5 and find that it was the European Parliamentary Elections Act 1978, which was a reserved matter.

The frank answer is that all of these matters can be tested in the courts. Ultimately, if an appropriate individual or organisation had a locus, they could take the matter to court and a judge would decide on it. The strong advice that we have received is that it would not lead to the outcome that Fergus Ewing attempted to describe.

I am grateful for the clarification. As I want Ian Hudghton and Alyn Smith to remain entirely legal, I will not press the matter to judicial review.

I hope that the UK Independence Party takes the same view on the matter.

I have a question about the transfer of rail functions. Scottish ministers are taking on powers over the SPT and SPTE at the same time as powers will be devolved from Westminster to Scottish ministers for the rest of the rail network. I want to ensure that, when we get to the end of the process, the powers for the rest of the rail network will be the same as the powers that are designated in the draft order for SPT and SPTE. Is there not the potential for confusion? Will everything come under one umbrella in the end? How long will it take for legislation to come through from Westminster? The answers to those questions will give us an understanding of the timescale in which you will be invested with the powers.

I will ask the officials to comment on the first point. Certainly, our policy objective is to have consistent powers across the whole of Scotland. I will ask the relevant officials to reassure the member further on the point. We are in discussion with the Department for Transport about the full process and the detail of the arrangements.

We also need to reach an agreement with the DFT on a fair and appropriate transfer of funding and resources. It should take around 18 months for the full process to be concluded, as a parliamentary process must be gone through, but things obviously depend on the progress of proposed legislation that has not yet started its journey through the United Kingdom Parliament.

Ian Turner might want to comment on consistency across Scotland.

We are working closely with the DFT on the section 30 order and on all the legislative matters going forward. We are concerned to ensure that there is a consistent approach and that matters that are devolved following the UK rail review are in line with matters over which the Scottish Parliament will get legislative competence following the section 30 order.

The minister thinks that the period will be 18 months, but there is a danger that the UK elections will get in the way and disturb the process. If you have part powers but not the rest, where will that leave us? Perhaps that is a hypothetical question that is not worth answering at this stage.

We would have to speculate on the outcome of the UK election and what the policy change—if there was a change—would be at UK level following an election. In short, we cannot answer such questions at the moment, but we are proceeding in good faith with the DFT. From what I have heard, there is general cross-party support for the initiative. Therefore, I hope that we can keep to the timetable and that we will be able to implement the changes within the 18-month period.

I have a supplementary question. Would the election stop the process? Would the whole process have to start again, or could it go over the election? I hope that it could do so.

Obviously, the UK Government will announce its responsibilities for delivering on its white paper proposals in due course. The Queen's speech and the timetabling of legislation are matters for the UK Government and it would be wrong for me to speculate on such matters. Obviously, we have had discussions and I mention the 18-month period in good faith. It is based on the best advice that DFT officials have given us in the discussions that are taking place at official level.

The purpose of my question was to ask whether an election would mean that the whole process would have to be started again, irrespective of any political considerations?

I understand from what the minister has said that there are on-going discussions with the DFT and that, if there is an election—obviously, we do not know at this stage whether there will be an election before the powers are devolved—it will be for the incoming Government to schedule its legislative priorities. The minister cannot really answer such a question.

The honest answer is that the process could be affected, but we would hope that the UK Government is taking steps and that somebody is planning for things. Only the Prime Minister knows the potential date of the election, but certain assumptions will be made. We believe that the matter is being allowed for in the plans that the DFT is developing. I do not know whether the officials can say anything more than that. The issue is a sensitive one for us to give more details about today, as it is the UK Government's responsibility. We would be concerned if our legislative proposals were announced in a committee at Westminster before things had been decided; similarly, it would be unfair of me to go further this afternoon.

I did not mean my question in that sense. I was thinking about Scotland, where work on a bill can be started, but if it is not finished before the election, it must be started from the beginning again. I was asking about the process. I think that you are saying that the changes should go through smoothly if the new legislature at Westminster decides that it wants them to go through.

Yes.

If there are no further questions, we should move to the formal debate. I ask the minister to speak to and move motion S2M-1808.

I do not intend to read out the lengthy briefing note that I have brought with me. In summary, all of the proposals have cross-party support; I am not aware of any division in relation to the proposals in the section 30 order. The first element, in relation to the European elections, is a straightforward correction of a problem with the 2002 act. I do not believe that anyone believes that the consequences that Fergus Ewing referred to will arise. We simply need to correct the problem as soon as possible to ensure that the legislation makes sense and does not refer to a date that is prior to the date of commencement of the legislation.

The second issue has been fully scrutinised by the Enterprise and Culture Committee, which has questioned Jim Wallace on the issue in his role as Minister for Enterprise and Lifelong Learning. The proposal was agreed by that committee without division.

On the third issue, which relates to rail powers, I would say that everyone wants there to be greater devolution of responsibility for rail to Scotland. The Department for Transport and Alistair Darling have made proposals in the United Kingdom white paper and, although many details still have to be worked out, the general thrust of the policy is widely supported in Scotland and in the railway sector. The matter that we are discussing today is a first step in that direction. I believe that we need to have a consistent approach across Scotland and that Scottish ministers should have strong powers over the railways in Scotland. To achieve that, I believe that it is an appropriate first step for this Parliament—because the powers would be used subject to scrutiny by and the agreement of Parliament—to transfer the powers to ministers. We cannot transfer the powers without having the legislative competence to do so. The section 30 order devolves to Scotland the legislative competence to allow the beginning of the implementation of the reforms to the rail industry, which will be good for railways and passengers.

I move,

That the Local Government and Transport Committee recommends that the Scotland Act 1998 (Modifications of Schedule 5) Order 2004 (draft), be approved.

Motion agreed to.

I thank the minister and his officials for their attendance.

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Firemen's Pension Scheme Amendment (Scotland) Order 2004 (SSI 2004/385)

No member has raised any points regarding this instrument and no motion for annulment of the instrument has been lodged. Are we agreed that we have nothing to report on the order?

Members indicated agreement.

As agreed, we will now move into private session to consider the paper on scrutiny of the budget for the year 2005-06.

Meeting continued in private until 17:17.