Procedures Committee, 07 Nov 2000

Meeting date: Tuesday, November 7, 2000

Official Report 231KB pdf

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Private Legislation

Andy Kerr has bust a gut to get here in time for the discussion on private legislation. Carol McCracken is here. She is very confident today because Mr Leitch is not with her—is he?

No, Elizabeth Blair is here instead.

We will try to crack through this item quite quickly. We can either go through it in painstaking detail or pick up on the one or two issues that have arisen from the report.

The report is a revised version of the one that we considered at our previous meeting. The revised parts of the text are in bold, so that we can pick them out. Going through the report, I ticked the amendments and noted the points on which I wanted further information.

The summary of recommendations does much the same thing.

It does. However, I reached the summary of recommendations only after I had been through the text, so I have ticked the amendments to the text rather than the recommendations summarised at the end of the report.

I will go through the report, picking out the paragraphs in bold. Members may intervene if they have comments. The changes start at paragraphs 6 and 7, which pick up on points made by Donald Gorrie. Is Donald happy with the proposal for hybrid bills?

Yes.

There are also changes to paragraphs 10, 15, 17, 21 and 22. I have comments on paragraphs 25 and 26, where I believe there is some textual inconsistency. In paragraph 25, Railtrack is reported as having supported operating under the Transport and Works Act 1992, but in paragraph 26 it is identified as an organisation that is not particularly supportive of the act. I would like that to be sorted out; I am sure that it is a textual point, rather than a point of substance. The time scale for the report meant that it had to be done in a great hurry. Presumably, we will receive a tidied-up version of it.

The next amendment is in paragraph 29. We are recommending an important change—that we allow bills to be lodged at any time. I ask Carol McCracken to clarify what we are agreeing to in the amendments to paragraph 32.

The Convention of Scottish Local Authorities suggested that the Presiding Officer should have the discretion to allow a promoter not to meet one of the requirements laid down in standing orders as having to be met before introduction of a private bill. That provision would apply if, for example, the promoter had not provided all the accompanying documents required or had not made all the necessary advertisement or notification arrangements.

In our view, it would be very difficult for the Presiding Officer to make a judgment on that. In this report—and in our previous report—we suggest that in an accompanying document the promoter either could say that he has advertised fully, in accordance with the guidance provided by the Presiding Officer, or could explain why he had not done that. If the promoter explained why he had not done something, he would still be complying with standing orders.

At the preliminary stage, the bill committee would have an opportunity to examine all the accompanying documents and to consider whether the promoter had done everything as he should. If the committee felt that there was a case for the promoter to undertake further notification and advertisement, or if he had failed to provide it with all the maps and other documentation required, the committee could consider giving him time to do that. However, we think that it would be inappropriate to require the Presiding Officer to make that decision.

The procedure is clarified if one reads paragraph 32 together with the parts of the report that explain the preliminary stage, where the committee has the discretion to do what I have outlined.

I suggest that you include those cross-references in paragraph 32 and explain slightly more fully what waiving non-compliance means. I appreciate that the substance of the report is for the specialist. However, the report is being made to MSPs and what is being suggested in paragraph 32 is not awfully clear. The clarification that you have just given would benefit all members.

The next change is to paragraph 35. Paragraph 36 contains an important recommendation. Essentially, we have concluded that we will not require promoters to submit evidence about a bill's compliance with the European convention on human rights. That will have to be tested over the whole process, rather than just for this part of the process. We may be criticised for that, but we are not taking on the whole planning and legal system as part of this piece of work.

Paragraph 41 recommends that we make the promoter pay for copies of the bill. Paragraph 42 recommends that there should be a period of two calendar months from the date of introduction during which objections in writing can be lodged with the clerk. There is a change to paragraph 43. Paragraph 45 indicates a shift in emphasis. If the objectors fail to submit their objections in time, they must demonstrate why those should be accepted. We should be very clear that we are recommending that.

There are further amendments in paragraphs 50, 51 and 52.

Given members' work load and the fact that local and regional members are not allowed to sit on a private bill committee, I suggest that we recommend a committee of three. The chances of finding five people who are eligible to do the work and can find slots in their diary for it are pretty slim, although if there are only three members on a committee it is essential that they turn up for meetings. Sometimes consideration of private bills can take a long time. I think that at Westminster private bill committees have three members, and that seems to work. If we had committees of three members, with a quorum of two, more than one committee could operate at a time. I have no idea how much of this activity there will be, but it would be unfortunate if we had a Harris quarry-type inquiry that lasted for ever and held up everything else. I would prefer committees of three, which would allow more than one bill to be considered at a time.

Carol, how do you react to the suggestion that we recommend a committee of three?

We could alter the wording of standing orders to give the Parliamentary Bureau the power to appoint a committee of up to five members. We understand that at Westminster private bill committees have four members. We recommended an odd number because that would make voting easier. If members had travel or other difficulties, those might present problems for a committee of three. It is questionable whether a quorum of two is big enough.

Would substitution be allowed on these committees?

We thought that it should not. We did not cover the issue in the report, because we thought that it should be dealt with when this committee gives detailed consideration to the question of committee substitutes. Once the private legislation provisions have been incorporated into standing orders, we can consider whether committee substitutes should be allowed. We thought not, because of the rules governing membership of the committee and because of the fact that members would be doing a sharply focused piece of work that required them to gain expertise in the area that they were examining. In that context, I am not sure that substitution would work.

I could live with the wording "up to five members". We could have committees of five for dealing with big issues and committees of three for dealing with small local issues.

We are agreed on that. Carol, I suggest that you address the issue of substitutions in this report, so that we do not have to tackle it later in our report on substitutions. I do not know how you should do that, but the matter should be discussed somewhere and is unlikely to get a hearing anywhere else.

Certainly.

I agree with your point about substitutes. None of the votes on a private bill committee will be party political. To invite someone on to a committee simply to vote is unreasonable if they have not been thoroughly involved in taking evidence.

There are changes to paragraphs 51 and 52.

I wondered about the issue of only one bill going through at the same time.

I think that the flexibility that we have just identified could take care of that. If we find ourselves with two reasonably light bills to consider, two smaller committees might be able to do it. I do not think that it is prescribed that there will never be two committees sitting simultaneously.

The question of party balance is relevant. We would certainly want to have more than one party represented, but, for example, I do not think that there is a Liberal Democrat view on whether Fraserburgh should have a new harbour, or a Labour view.

We can expect that to be in an SNP leaflet next week.

There are no SNP members here—we are all right.

The party balance does not matter.

Indeed—we can be too hung-up about party balance on committees.

There are changes to paragraphs 53, 54, 55, 57, 58, 61, 69, 75—

I want to talk about adversarial and consensual approaches. It is probably okay that the first part of the activity would involve discussion and going through ideas before we reached a more adversarial period with proper amendments. I could probably go along with that. It may be that we get a better result with a more discursive and a less adversarial approach.

When we are considering the promoters' proposals and the objectors' interests and objections, the arguments need to be gone into rigorously. The adversarial approach would be more likely to bring out weaknesses and to highlight difficulties for MSPs than would the normal way of collecting committee evidence on an issue. We need a rigorous approach and I think that the committee felt that, on balance, the case for that had been made by the witnesses.

All right.

The following paragraphs have also been changed: 78, 81, 83 and 89. Carol, the text of paragraph 89 appears to be corrupted.

A line is missing. The first sentences of paragraph 89 should read:

"In response, we should say that the Group's Report made it clear that promoters and objectors may put forward suggestions for changes they would like to see made to the Bill. These could be put forward by them to the Clerk. They can then submit evidence in support."

This paragraph is to do with the question of how amendments will be introduced and moved. We wanted to balance the fact that only a member had the right to move amendments with the need to allow promoters and objectors to introduce suggested amendments. We will tidy up the text.

I would like to go back a bit. This is an example of my failing memory. Is there a member in charge of a bill as well as a member in charge of an amendment?

It is really at stage 3 that we need to consider the member in charge of the bill—especially when there is a suggestion that the bill might be remitted back to committee. With Executive bills or with members' bills, it is normally the member in charge who would suggest that. We are suggesting that the convener of the committee would act as the member in charge of the bill. We did not think it necessary, during the detailed consideration of the bill, to identify a member in charge, but it may be that the convener of the committee will formally pick up and run with most of the amendments, which should have been discussed in general terms at the inquiry stage.

I was thinking about the proverbial level playing field. You may have a bill that sets out what may be the reasonable consensus view of those involved. You may then have an amendment that one party strongly supports. That party will brief a member, who will be fighting for the amendment. Who will be fighting for the consensus view, which may be much more sensible? I worry that things may be lost by default.

At stage 2 of a bill, when amendments are considered, we thought that that would be done initially as a cross-examination. The objectors would have said why they did not like the bill and how they would like it to be changed. Similarly, the promoters—away from the committee—may have been negotiating with objectors to try to have some of the objections withdrawn before the stage of detailed consideration was reached. We expect that much of the consensus-type discussion, between the promoters and the objectors, will take place outside the committee. However, the committee is there to listen to the objectors' arguments on the amendments. If the committee is convinced by those arguments, committee members will move and discuss those amendments. They will have already heard all the arguments of the promoters and objectors.

After paragraph 89, the changed paragraphs are 90, 91 and 96. With our previous discussion on the Presiding Officer's discretion on selecting amendments in mind, I wondered whether paragraph 96 should refer to his doing so in accordance with the guidance on public bills. Would the same criteria apply? I feel that we ought to state some criteria, or have some framework, for the benefit of people who are promoting legislation or amendments.

All right.

The next changes are the financial ones in paragraphs 107 and 109. Why would we propose to subsidise the cost of promoting a private bill through Parliament? As all the benefits will, I presume, accrue to the promoter, should not the promoter pay the whole cost?

We came at this from a number of angles. We considered the arguments for and against having higher costs to put through a private bill in the Scottish Parliament than at Westminster. That might arise if there were similar bills on, for example, railways. Our understanding is that costs are subsidised at Westminster. A fee is set, although we are not all that clear how it is calculated. It seems that not all the costs are recovered. On balance, we thought that there should be a level playing field, north and south of the border, for the cost of putting through legislation. Until we have had some experience with such bills, we will not be sure what the full costs will be. There will be a learning curve.

Westminster probably has more generous resources than we have and I am worried that the costs may be considerably higher than we estimate. If there were a run of bills, the public purse would be paying a lot to promote private interests. I hope that we may be able to build in some way of reviewing or reassessing this. After all, the promoters of bills tend to be the sort of people who promote planning applications and so are used to a fee-based system, where the planning authority will recover all its costs at the promoters' expense. I do not think that such a system would appear unreasonable to them. I appreciate the fact that we have not implemented the system yet and therefore do not know what will be involved.

Are there further comments on the changes to paragraphs 114 and 115?

On paragraph 114, I am happy that the promoters should pay all costs of the objectors, but there should be a caveat for unreasonable objectors. Promoters should not have to write a blank cheque. If someone, such as the convener of the committee, thought that an objector was being very unreasonable, there should be some provision for that objector to pay costs.

I would like to clarify that paragraph, as it needs to be tidied up as we go through and proofread the document.

Paragraph 114 says that

"the promoters should be liable for all costs of objectors".

That refers to all the costs of objectors that would be due to the Scottish Parliament—in other words, the costs associated with the production of the Official Report and so on that we identified earlier. Going back to our discussion at the previous meeting of the Procedures Committee, I should make it clear that paragraph 114 does not refer to legal costs, such as the costs of representation.

There are two points about the award of costs. First, on frivolous objections, it is proposed that, at the preliminary stage, the committee would have the power to consider whether objections are relevant. If they are not relevant, the committee will have the discretion to disregard them.

Secondly, if the committee finds that an objector is simply wasting the committee's time by drawing out the process, a legal problem arises, as standing orders do not allow us to facilitate the award of costs. That point is brought out in paragraph 118. The effect of what we are saying is that a promoter who had to pick up the fees of an objector, where he believed that the objector had pursued a frivolous objection, would be required to pursue that matter through the courts. We suggest that that point should be kept under review. If it appears that the system is giving rise to problems, we could consider introducing legislation to cover the award of costs.

I had not grasped that point. Is it not the case that the promoter would have to pay if the objector signed up someone like Menzies Campbell, Gordon Jackson or someone else who costs a lot of money?

No. We will clarify that point.

I am content with that reply.

That takes us past paragraph 118 and on to paragraph 119.

I remember that we discussed planning before. I wondered about this issue, but I presume that it is up to the Scottish Executive to decide whether it will run with the recommendation in paragraph 119.

We received clarification from the Scottish Executive this morning. An amendment has been made to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992, through the Scotland Act 1998, with the effect of deeming planning consent to be granted to developments authorised by a local or private act of the Scottish Parliament. Therefore, that problem has been addressed. If a private bill that is passed by the Scottish Parliament requires planning consent, that consent is deemed to have been given. Therefore, the promoters do not need to go through both hoops.

The next thing we know, the Lingerbay quarry will come to the Transport and the Environment Committee.

We are almost there. There is an important change under the heading "Carryover of Bills", where we suggest that a private bill should not fall at the end of a parliamentary session.

May I seek guidance from the committee on the carry-over of bills? The draft standing orders that are before members contain a paragraph in square brackets on that point. When we started to consider in detail how we would make that provision work, some questions of principle arose. For example, a private bill could have partly completed the second stage, and evidence could have been taken, or the bill could have been partly amended. If the Parliament were dissolved for the election to take place, and a new Parliament were established, possibly with some different members, the membership of the private bill committee might change. That would raise the question whether the committee could carry on from where it stopped.

I do not know whether Elizabeth Blair wants to comment. At the moment, lawyers take the view that the private bill may have to be allowed to fall and be picked up by the new committee, which could skip some stages, if that made sense. For example, if the previous Parliament had agreed to the general principles of the bill, stage 1 could be taken as read. However, the committee might have to take further evidence on the bill. I am sure that the bureau would take such factors into account in timetabling bills towards the end of a session. However, the issue gave rise to difficulties of principle and technical difficulties in drafting the standing order.

Is that suggestion covered in the changes to standing orders that have been proposed today?

Yes.

Do you require to make further changes?

The full procedure is not included. All that the draft standing orders say is:

"A Bill introduced in any session of the Parliament falls if it has not been passed by the Parliament . . . but a Bill in the same or similar terms may be introduced in any subsequent session."

If the committee were sympathetic to the idea of a fast track, we could try to draft such a procedure.

We would not like people to have to repeat all the evidence gathering. Even a former member who had been replaced would not wish that on their replacement.

Can the new committee simply decide to do that anyway, or must standing orders make such a provision? The new committee might decide that the evidence gathering had by default already been done.

If the bill fell and we facilitated its reintroduction, the committee would be required to complete stage 1 and report to the Parliament on the general principles of the bill, unless standing orders said that it did not need to do that.

Okay.

Donald, you seem confused.

Yes. I thought that the bill could stay alive and that the new committee could decide on the way in which it would pick up the bill and handle it.

What we are establishing is that a bill must die, but when it is reborn in the next session, we will find ways of streamlining procedures and avoiding duplication of work. We are developing a way of giving the new committee the principle of carry-over without its being able to carry over a bill.

There are conceptual problems in allowing a bill to be extant while there is no Parliament, but we will try to ensure that, when standing orders say that a bill may be reintroduced, we will not require all the fees and accompanying documents again. We will try to short-cut all those procedures and ensure that the system works without putting an unnecessary burden on the promoter.

My concern is that you should make the changes to the draft standing orders to give effect to those ideas now, rather than making a further adjustment later. I do not think that all members have a copy of the draft amendments to standing orders, which I saw for the first time this morning. In the private session, I am afraid that the committee will have to discuss some mechanism of examining and approving those amendments, because we cannot do that today while they are unread. We will receive further amendments before we have a meeting to discuss the issues.

May I press the previous issue? Is it impossible for a private bill to go into purgatory, if that is the right expression—I am not a Roman Catholic, so I am not acquainted with such terms—before resurrecting itself in the new session? Will the bill have to die and be stuck in a hole?

We think so. We are considering that at the moment. We will try to achieve a system that works as though the bill has been on hold while the Parliament has been dissolved, even if the bill must actually fall and be reintroduced.

There is a change in paragraph 130. It is simply a procedural point. There are additional comments in paragraph 132 and a recommendation is set out in paragraph 133.

I ask members to approve the report in principle, with the various amendments that have been flagged up. We have to consider separately whether to approve the draft standing orders. I ask the relevant officials to provide us with the amended text of those paragraphs in which we have agreed today that clarification, addition or amendment is necessary. It might be a good idea to hang on to that for the meeting at which we will discuss standing orders. Is that agreed?

Members indicated agreement.

The next item on the agenda is an inquiry into committee operations. We have a paper with four reports. This looks as though it will be the longest-ever meeting of the Procedures Committee.

Could we take a short coffee break?

Why not? My powers allow me to adjourn the meeting for a few minutes.

Meeting adjourned.

On resuming—