Private Bill Committee Assessors
We welcome to give evidence Alan Boyd, a director of McGrigors, and Kelly Harris, an assistant at Shepherd and Wedderburn. The committee wished to hear from the witnesses because they are from two law firms that submitted very interesting written evidence. I will allow both witnesses to emphasise what they think are the main points in their evidence, and then we will ask questions. We start with Alan Boyd.
Thank you, convener. I will briefly summarise our written evidence. We have one main concern, and a number of subsidiary points have occurred to us through our involvement with clients in the private bills procedure.
Our main concern is about parliamentary competency, particularly in so far as the interim solution is concerned, which is the amending of standing orders until primary legislation can be introduced. Having had the benefit of looking at other papers and considering the matter further since we submitted our evidence, my concerns about the interim position have amplified. I reached my view because of the particularly well-focused argument in the written submission from the Faculty of Advocates.
I find quite compelling the logic that the faculty employed. The standing orders regulate the proceedings of a committee, and the term "proceedings" is defined in the interpretation section of the Scotland Act 1998. Committees or sub-committees comprise MSPs—not a mixture of MSPs and lay people or other advisers. Therefore, as a Iawyer, I reached the conclusion that the Parliament might find itself in difficulty from a legal challenge if it went down the route of attempting to amend standing orders to allow assessors.
My first subsidiary point is that much private legislation contains provisions that deal with the extinction or diminution of private rights—for example, the power to take property by compulsory purchase. It is therefore important that any changes to the process ensure that the rights of individual objectors are clearly taken into account. It is recognised that it is legitimate to have a parliamentary process to allow, in the interests of society at large, the compulsory acquisition of property. However, checks and balances are built into the existing system. The Human Rights Act 1998 is superimposed on the whole framework now, of course, so if assessors are to be appointed it will be very important that the rights of objectors to be heard properly are taken through the amended procedure.
Secondly, we suggest that many significant problems arise not at the consideration stage but prior to that. I do not quite know how this would be managed, but we have suggested that it would be useful if an assessor could be involved to assist in the negotiating out of most objections before the consideration stage, so that the committee would be left to deal only with objections of real substance.
Our third point follows on from that. We believe that, as matters stand, promoters have no incentive to negotiate following the serving of the initial notification. Certainly, our experience of some of the transport private bills is that the promoters were unwilling to come to the table. They promoted bills with significant powers of compulsory purchase, but were quite happy to leave the committee to do the inquiry. We feel that that has not proved satisfactory. There have been very long committee hearings and promoters have been negotiating at the last minute because the committee instructed them to do so and made it clear that it expected real negotiation to happen. However, we are in the early days of private legislation and matters might improve as promoters of bills begin to understand how parliamentarians wish to proceed.
An interesting little point arose during the Edinburgh tramline bills process regarding flexibility in committee procedures, because it became clear that the standing orders leave little room for flexibility. The position that was drawn to my attention is that, between the promotion of the bill and the taking of evidence, there was a significant amendment to traffic movement along Princes Street, which became, in fact, a one-way system, with significant alterations in the type of traffic that could use it. That had a consequential effect on the terms of some objections, but the committee felt that, because of the way in which the standing orders are drafted, it could not allow written submissions to be amended, albeit that the background scenario had shifted. My plea to this committee is that, if the standing orders on committee procedures are being considered, room be given to flexibility, where possible.
Our final point results from promoters' unwillingness to undertake meaningful consultation in an attempt to negotiate out major objections at an early stage. Objectors have incurred unnecessary expense in preparing for committee meetings that sometimes did not take place because of an 11th-hour settlement. Objectors have had to spend on legal advice money that would have been better spent on other things, to be honest. Do not get me wrong—my job as a lawyer is to advise my clients, which is how I earn my living. However, I like to give my clients advice that will be of practical benefit to them, rather than indulge in firefighting because we have no other option.
We have suggested that, as the committee reviews the procedures, it should consider sanctions to prevent parties from delaying meaningful negotiation. Perhaps the ability to award objectors expenses against promoters that fail to fulfil their obligations properly might be sufficient.
That was a summary of the evidence that we submitted.
That was helpful.
Kelly Harris (Shepherd and Wedderburn):
I will focus on three points that arise from our submission. The first is about legality and the ability to amend standing orders in the proposed way. I read the other submissions and paid particular attention to that of the Faculty of Advocates. We recognise fully that whether standing orders can be amended in the suggested way is arguable. The best people to advise the committee on the issue are the Parliament's lawyers, as they have the most experience in the matter.
No one can say whether such amendment would give rise to a legal challenge. Ultimately, in law, there will never really be a right answer until a judge says what his decision is. The legality of the process is a risk, but it is small in the light of the deference that judges tend to show Parliament. It is obviously imperative that every objector should be able to be heard fairly, but whether they are heard by a committee or an adviser to the committee is another question, which is open to argument either way.
We were asked in particular whether the proposed amendments would save time, and we address that point in our submission, as do the Society of Parliamentary Agents. The proposal would not necessarily save time during private bill proceedings. The three private bills that are in progress have taken substantial time. I read the Official Report of the committee's previous meeting, at which it was said that much of that time related to the inexperience of the people who were involved and, in particular, to the promoters' stance of not consulting earlier in the process. Given that many of the costs related to private bills fall to promoters, they will in future be more aware of their obligation to consult early. I hope that that will speed up proceedings.
As for whether the proposed amendments would save time, people would again have to learn a new process for the three bills that are to be introduced before the legislation changes. As the process would be new, that would slow proceedings. Whether the proposal would save time for the three bills involved is also a point for debate. No one has an exact answer, but the answer will not definitely be yes.
Our submission discusses the availability of people to undertake the role of assessor, which was on the agenda of the committee's previous meeting. The Executive's submission was that the Scottish Executive inquiry reporters unit would fulfil that role. We address the point in our submission when we raise our concerns that the unit may not have the capacity to undertake the work. Although I have read what the inquiry reporters unit said in the submission that it made to the committee about its ability to take on the work, our practical experience tells us otherwise. I think that the total number of reporters in the unit is 17, of whom the most experienced seven to 10 reporters are probably best placed to undertake this work. However, of those, at least seven face retirement in the next year to 18 months. The issue for the unit is one of its internal capacity.
There is also the issue of perceived independence. Clearly, the inquiry reporters unit is, in fact, independent. However, there is a serious argument that that is not the case. There were a few legal challenges on that point earlier this century, and the Executive admitted that the unit was not independent of the final decision maker.
Whether those issues can be overcome is another matter. The practicalities are probably best addressed by the Executive. We recognise that a large number of people operate as freelance reporters at the moment. It may be that that system would operate more effectively for the Parliament.
Thank you. I will pick up one point before I invite my colleagues to ask questions. Both of you, either in written or in oral evidence, talked about the value of getting an assessor or similar person involved earlier in the process. You also spoke about the evident reluctance of promoters to come to the table to negotiate.
The advice that we have been given is that a railway—let us say—belongs to the promoter and not to the Parliament until a bill is introduced. It is therefore quite hard for a committee of the Parliament to appoint an assessor before the Parliament is involved in the process. I take your point that the earlier that controversial issues can be settled, the better. Do you have any practical suggestions to make on the subject? Some advice on how we could achieve that would be helpful.
I think that the term of art is "front-loading the obligations". I fully take your point; the issue is a difficult one. As I said, I am very concerned at the substantial costs that some objectors have incurred. The Edinburgh tramline bills are a good example, because of the complexity of the legislation and the fact that the promoter is trying to put a substantial infrastructure project through a combination of residential and business areas in an old city. People have been quite adept at objecting for a range of reasons.
There is one common thread, which is that for each set of objections that we, as a firm, have resolved, we have persuaded the promoter to move quite dramatically from its starting point. The promoter started out by drawing a red line around an area and seeking the compulsory purchase powers to do what it wanted—that was that. However, at the end of the day, we have a detailed agreement for an area that is not the whole area that the promoter wanted to take. The promoter has made several concessions and provided a number of extra undertakings by way of the parliamentary process.
If there had been consultation up front—in some cases, there was absolutely no consultation—and if some impetus had been put on the promoter, a lot of fear, concern and expense would have been avoided. The question is a difficult one to which I cannot provide an easy answer—if I could have done, I would have been able to write the textbook and retire tomorrow.
Thank you. That was very helpful.
On compulsion, there is probably very little that the Parliament can do. Clearly, the Parliament is a gateway. If the promoter's case is to be heard, a private bill needs to be introduced in the Parliament, and if a promoter is to introduce a private bill, it has to meet certain technical requirements that are set out in the standing orders.
It is arguable that it would be possible for a requirement for a consultation period to be put into the standing orders. There is an extent to which consultation happens at the moment, as a promoter must go through a notification process. It is also arguable that one could add a requirement that a certain amount of negotiation has to take place before introduction, so that, for a private bill to be accepted, it would have to go through such a process. That suggestion is off the top of my head; the matter would best be considered by people with more experience.
Your evidence has confirmed two points for me: first, there are as many legal opinions as there are lawyers—perhaps more; secondly, the present system does not work and is not effective.
I am not sure how, given the three bills ahead of us, we can deal with your point about early intervention—the bills are about to be drafted and are probably about to be introduced. Much of the pre-consultation work should have gone ahead already, although that probably has not happened.
We will need to feed your points into the consultation on the proposed transport and works bill so that we can ensure that the new process—because what we are discussing is obviously an interim process for three private bills that are pretty far down the line—addresses the concerns that you have raised.
My question is about the use of the inquiry reporters unit or buying in expertise. I am pretty open to the committee choosing either of those two options. A private bill committee could decide, using a process of competitive tender, who would be the best assessor. What could the private sector bring to the process?
If the assessor's role is to be as suggested in the Executive's submission, what you are looking for in an assessor is someone who can hear a case fairly, clearly and in a well-organised way, almost like a judge. There are a large number of people, particularly in the specialist fields of mediation and arbitration, who have experience of running such a process. In this case, we are looking for a fair and transparent process, no matter who undertakes it.
An assessor must be able to run the inquiry process; whether they require experience of a particular area depends on the nature of the private bill. Some bills would benefit from someone with experience in, for example, the rail industry and, in those cases, consideration should be given to appointing a person with a particular expertise. Whether that will be a person who was involved in the rail industry in some capacity—such as a chief executive—or whether it will be a member of a transport users group who had gained particular experience would have to be decided.
The private sector has some of the skills that you are after, but some of those skills can also be found in the public sector. Appointing assessors is about identifying experienced individuals who can undertake the work, and then thinking about the process of appointing the right person.
There is also the question of how the outside world perceives the independence of an appointment. There are many people who have the substantial experience and skills that an assessor would need but who are not necessarily in the inquiry reporters unit. However, I recognise that a substantial number of the reporters would also do the job very well.
I am not sure that I will get much further, as I may be asking for the easy answer that the witnesses say does not exist. However, I am interested in the issue of negotiating out objections. If we can do that, we are guaranteed to speed up the progress of private bills and make a big difference. At the moment, a negligible number of objections are being negotiated out. It would be very much easier for us if you could suggest a way in which we could encourage a promoter to have meaningful negotiations with objectors before the process starts. I am open to any suggestions.
I will offer two thoughts. It is a difficult issue because we must consider what sanctions could be brought to bear. Perhaps the only real sanction would be a financial one. In other words, if the private bill committee reaches the view that the promoter of the bill has not acted reasonably and diligently in negotiating with objectors at the appropriate time, the committee—or the Parliament, if needs be—should have the power to order the promoter to meet the financial costs incurred by the objectors as a condition precedent on the bill making progress.
The second possible route might be to make it clear to promoters that if it becomes apparent at consideration stage, which is when the committee gets the chance to identify the problems, that there has been no meaningful negotiation, the bill will be put into storage, if you like. The procedure could be suspended for a period of, for example, six months to enable the promoter to go away and do what it should have done earlier. That solution would involve a non-financial penalty.
Those are two options. The private bill committee could penalise the promoter and say, "If you do not do this we will hit you where it hurts: your pocket." Alternatively, the committee could decide not to make progress with the bill and the promoter would have to go away and consult to the committee's satisfaction.
I want to posit the suggestion that perhaps not be much more can be achieved by involving an assessor than we have achieved under the current process.
I cannot speak for the Edinburgh tramline bills, but my experience from having sat on the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill Committee is that a significant effort was made by the promoter and by the clerks to the committee to ensure that attempts were made to resolve objections before they got to the parliamentary process. However, many objections do not go away, whatever the promoter does to assuage the objectors' fears. It is inevitable that objectors will wish to press their point. That causes a pinch point at the consideration stage. Very few levers can be used to try to change that. With the greatest respect, I suggest that the levers that Mr Boyd suggests could lead to a bill being thrown out entirely. A six-month delay to the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill would have put up the cost of the project hugely and might have made it economically unviable. I am playing devil's advocate and asking whether much progress can be made through the use of such levers, however desirable they might be.
If a promoter knew that failure to enter into significant and meaningful discussion might have the effect of making the whole scheme unviable, that would, to my way of thinking, provide a sufficient incentive to enable negotiations to take place. We acted for certain objectors on the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill, which was different from some of the other private bills. It had less significant effects on property rights than the tramline bills have or, I suspect, parts of the two airport rail link bills will have. They will be much more intrusive as far as property interests are concerned than either the Waverley Railway (Scotland) Bill or the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill.
The kind of penalties that you talk about might incentivise promoters to address some of the objections, but they would certainly incentivise objectors to continue with their objection and to try to get the whole project thrown out by default.
But if the private bill committee holds, as such committees have done, a diligent and penetrating inquiry, those matters will be flushed out—particularly as a result of the written objection procedure. It will be clear when objectors are, if you like, flying a kite and when there are significant and reasonable grounds for objection.
There are two issues: whether the interim measures are legal and whether they are desirable in the circumstances in which the Executive is considering using them—that is, for the two proposed airport rail link bills and the Airdrie to Bathgate railway bill. The Executive has intimated that it favours the committee's recommendations, which the Faculty of Advocates has questioned. Do you think that the Parliament has the authority to delegate the part of the process in question to a third party?
I would say that the Parliament probably has the authority to do so as long as the assessor process is more akin to the adviser process that currently exists in which someone hears evidence and provides advice. It is imperative that the fundamental responsibility for making decisions remains with the committee. However, at the committee's last meeting, some difficulties were raised. If objectors refuse to take part in the assessor process and demand to be heard by the committee, it would not be helpful to try to prevent them from being heard. Whether doing so would be legal becomes too technical a question.
The Faculty of Advocates has considered what the Scotland Act 1998 allows the Parliament to do and what that means in reality. There are clear arguments for making a statement in the United Kingdom Parliament on the extent to which the Scottish Parliament can regulate its procedure through its standing orders. We are talking about a matter of statutory interpretation—the issue is open to argument either way—and, unfortunately, I do not think that there can be certainty. That would depend on whether anyone challenges the amendments to the standing orders and what a judge would find.
Leaving aside the longer-term solution and amending legislation, I am inclined to the view that an attempt by the Parliament to amend its standing orders to allow assessors to act is beyond the powers that were conferred on it by the Scotland Act 1998. I have been persuaded by the arguments that the Faculty of Advocates has made, which I attempted to summarise in my opening comments. There are concerns about the risk of a challenge if the Parliament were to proceed in the way that has been proposed.
Let us consider how assessors proceed in planning inquiries. They hear the evidence and then issue their part 1 report, which is, in effect, a summary of the evidence. That summary is circulated among the parties, which have an opportunity to correct matters of fact so that the assessor or reporter will end up with agreed evidence on which he or she will make their recommendation to the Scottish ministers. The Scottish ministers will then make a decision, after which there is still the possibility of an appeal to the Court of Session under planning law, compulsory purchase law or whatever.
I understand that, if the Scottish Parliament adopts the assessor process, the assessor will go away, hear the evidence and then compile his or her report, which will be considered by the bill committee. That committee can then adopt or not adopt the recommendation. However, I do not see any opportunity to give grounds for challenge in the process and so am seriously concerned about the implications of the Human Rights Act 1998. As Kelly Harris said, the Executive has got into certain difficulties over the reporters' impartiality. However, those concerns were set aside, partly because there was an appeal to the court.
I am concerned that, if a private bill grants compulsory purchase order powers on the basis of evidence that is heard only by an assessor without any rights of appeal, that could drive objectors into court to mount legal challenges because they would feel that they had nothing to lose. The credibility and standing of the Parliament would suffer as a result. After all, the Parliament makes the law of the land and it should ensure that that law will not be overturned by courts. If courts begin to overturn the law, we will face a very unhappy situation.
But the process will be no different from the current one. At the moment, a committee hears evidence and makes a decision; objectors have no right of appeal, except through judicial review. That will remain the only recourse for objectors.
From what I hear, you appear to be suggesting that we cannot have a parliamentary standards commissioner, who, after hearing all the evidence, makes recommendations on which the committee bases its decisions. Indeed, not only are you suggesting that the post of standards commissioner—the legislation for which has been agreed to, given royal assent and enacted—is illegal, but you are suggesting that any process established under any transport and works act that involves an assessor would be illegal and that it would also be illegal to use assessors or committee reporters if they are not MSPs.
As I said, under the current process, people have no right of appeal. However, with the proposed process, they could appeal to the committee to be heard if they did not think that their objection had been dealt with fairly.
In response to Richard Baker, you mentioned two sanctions that could be put in place. However, what if the committee did not agree with the objector? You suggested a sanction under which consideration of a bill could not proceed for six months if an objection had not been dealt with. However, if the committee did not agree with the objector, the objector would have the right to go to court and ask why the bill had not been suspended for six months.
On your second point, I am not suggesting for a moment that the committee should simply agree with objectors. In fact, if the procedure were front-loaded, many objections would not be lodged, because the natural process would allow any concerns to be negotiated out.
Of course, like anyone who makes law and has to decide between conflicting opinions, the committee has to make up its mind. I am not suggesting that objectors should receive any favours; I am simply seeking equality of arms.
I listened carefully to your point about the standards commissioner. The difference is that private bill committees deal with legislation and the Scotland Act 1998 sets out clear rules on what is within the Parliament's powers with regard to the passing of legislation. I accept your comment, because I see no difference between us on the matter. My doubts arise from the narrower issue of how the Parliament is required to operate standing orders on the making and passing of legislation.
But the assessor would not make or pass any legislation. The committee would do so based on the evidence that it received, in the same way as it has to make decisions based on its interpretation of any evidence, wherever it comes from.
The committee would read the evidence but would not have a chance to cross-examine any party.
It could if it wanted to. If the committee were not convinced of something, there would be nothing to prevent it from inviting parties back.
That is a subtlety that I had not appreciated; I did not appreciate that the committee would have that power. If it was made clear that the committee could exercise that power, that would get round the difficulty.
We are told that the proposal is a temporary and expedient measure. However, it may not speed up the process, because it is aimed at the wrong part of the process. There will not be preliminary hearings before bills are drafted because bills are already being drafted. Furthermore, if objectors were given the right of appeal, could we not end up with the process taking as long as before?
My many years of experience of planning and other inquiries lead me to doubt what the real time saving might be. There is no doubt that there could be savings as a result of the reporter or assessor being able to sit for five days—a full working week—to hear a block of evidence. Clearly, committees cannot do that.
However, resource issues arise. I am worried that taking reporters away from the planning process might impact on the length of planning inquiries. The lead-in time for such inquiries can be quite significant as it is, so we might be strengthening one part of the system but weakening another.
I have sat through many parliamentary committee meetings at which objections were dealt with and—were it not for the legal difficulties—I would be entirely sympathetic to what you are trying to achieve. If you can truncate the whole process, everyone will be happy. The objectors should be happy, the promoters should be happy and, of course, the long-suffering committee members should be happy.
May I clarify one point? I say to Bruce McFee that I never suggested a right of appeal. It would be for the committee to determine whether it required to take further evidence. That would not be a new appeal stage—indeed, I would not support such a stage, because it does not exist in the current process. However, if the committee is not convinced by the evidence that it has, or if there is some dubiety, it could hear more evidence.
I do not think that I suggested a right of appeal.
No, it was my colleague.
I was highlighting the difference between the reporter's role when acting as an inquiry reporter under planning legislation, where there is a right of appeal, and the reporter's role when acting as a committee assessor. As you say, there is no right of appeal in this case, but you could build in the opportunity for the committee to hear evidence directly from particular objectors.
From your experience of helping objectors, do you know whether, if the committee decided to hear objectors A, B and C, objectors X, Y and Z would also demand to be heard and would think that their human rights had been breached if they were not heard when other people were?
I think not, because that is the way that committees work just now. There have been 100-odd objectors for each of the tram bills, but the committees will hear from only around two dozen witnesses. That corresponds with what happens in planning inquiries, which can be dealt with by written-submission procedure without the need for a formal hearing. It is not the hearing that is important; the critical point is the perception that the decision-taking body takes people's objections into account, no matter whether they are lodged in writing or heard orally.
That has opened up a reasonable line of argument. Let us assume that the assessor has all but dismissed a group of objectors, perhaps by devoting only two lines to them in his or her report. On what grounds would the committee not hear those objectors? Would it not be open to the objectors to take the issue further if the committee, without having seen any part of their evidence, simply decided not to hear them?
Ms Gillon gave the answer to that some time ago, which is that judicial review is always an option in relation to proceedings of the Parliament, although whether the objectors would succeed is another matter. I do not want to get too technical and start talking about Wednesbury reasonableness but, if the committee was seen to be acting unreasonably by, for example, not observing the rules of natural justice, there would be grounds for challenge. However, that procedure is available under the existing process and I do not see how the introduction of assessors would alter that.
The issue is not just about whether the proposal is possible legally. Would criticisms and the risk of challenge be magnified because the Executive, while not being the promoter, would in effect be seen to be promoting the bills and because the measures, we are told, would be temporary? Might that colour a court's view?
The risk might increase, although I do not know whether the increase would be substantial. The fact that the process has been changed simply for three specific bills may raise questions among objectors about the fairness of that process.
As we have no further questions, I thank the witnesses for their evidence, which has clarified many points. We are much obliged. The committee will come to a conclusion in due course.