Procedures Committee, 10 Feb 2004

Meeting date: Tuesday, February 10, 2004

Official Report 220KB pdf

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Private Bill Procedure

The next item on the agenda is consideration of a paper on private bill procedure. The private bills unit has asked us to consider this item, as a couple of issues have arisen from private bills that are being considered. Ken Hughes, the head of the chamber office, Rodger Evans from the private bills unit and Fiona McClean from the directorate of legal services will gave evidence on the paper. I invite Ken Hughes to say a few words of introduction before we move to questions.

As the convener has said, there are two emerging issues that present problems under the guidance to which we currently operate. We are recommending that changes be made to provide solutions.

The first change is directed at handling proposed amendments to a bill that could attract new objectors. At the moment, it is perfectly possible and feasible for a private bill to be amended, which could affect the interests of a completely new set of objectors. There is nothing in the guidance that advises us on how to deal with such proposals. The procedural loop that we suggest would provide everyone whose interests might be adversely affected by a bill with the same opportunity to object. We want to ensure that there is a level playing field for objectors, irrespective of whether their objections relate to the bill as introduced or to amendments that are proposed subsequently at consideration stage. Putting in place the loop should ensure accessibility of information and transparency of process for all the parties involved. It should also ensure that the bill can progress without an added threat of legal challenge.

The second change relates to objections to the entire bill, rather than a particular aspect of it. Experience so far suggests that the majority of objections are to detail, rather than to whole bills, but we receive a smattering of objections to whole bills. We are proposing that objections be considered fully at preliminary stage, instead of continuing into consideration stage, as happens under the current guidance. That would call for a certain replication—if not a total replication—at preliminary stage of the process of detailed scrutiny that happens at consideration stage. We are recommending the change because we are concerned that the private bill committee could end up considering objections to the general principles of a bill after the stage at which that should happen has passed and consideration stage has begun. Again, there is a gap in the guidance, which does not address that circumstance.

Members may be wondering why we are recommending these changes to the committee at this stage. The private bills with which we are now dealing are significantly different in nature, scale, size and complexity from those with which we dealt in the first session. Session 1 bills were modestly sized and relatively straightforward and they had a discrete purpose. I refer to the National Galleries of Scotland Bill and the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill. In session 2, those have been followed by major works bills, such as the Waverley Railway (Scotland) Bill, the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill, the Edinburgh Tram (Line One) Bill and the Edinburgh Tram (Line Two) Bill. Those major works bills are now testing the guidance that we originally wrote and are identifying new procedural issues that we need to address. That is why the matter has reached this stage before we have been able to come to the committee.

The changes to guidance will not necessitate standing order changes, certainly in the short term. I make it clear that the changes that we are suggesting do not go against anything that is currently in standing orders, although, for the sake of clarity and consistency, there may at some stage be a need to consider changing standing orders to make them consistent with the guidance.

Some urgency is attached to the changes to the guidance. Possible amendments and objections of the type that we are talking about are already in the pipeline and some of the bills that will be affected are in progress, so we recommend that we have a quick look at solving the problems that we face.

It might be easier if we examine the two issues discretely. We will begin with comments on the possible amendments and the procedural loop and then examine the whole-bill objections. It will be easier to treat the issues separately rather than cutting between the two. Do members wish to kick off on the first issue, which is the procedural loop?

I am new to this process. Are any timetables or time limits set out in the private bill procedure? My concern is that the additional loop may keep on looping round.

The loop creates a new objection period for people who are newly affected or who could be affected by any proposed amendment to a bill. Standing orders and the guidance state a period of up to 60 days. If all the objectors are identified and come forward within the 60 days, either to say that they object or to confirm that they will not object, we are suggesting that we do not have to see through the whole 60-day period again before we can go to consideration stage. Moreover, at consideration stage, amendments would be coming only from the promoter or from the committee, so it does not appear that anything would be created to stall or stymie a bill unnecessarily.

I have two questions on the loop. The first is on the principle of changing the process at this stage, given that bills have already begun their process. The promoters, the objectors and everyone involved understood what the process was at the beginning. We are now suggesting that the procedure might be changed part way through. What danger is there of a promoter or an objector seeking judicial review, because the process was not the same as it was when it started and therefore the game had changed? I am concerned that there might be avenues for people to exploit if they are unhappy with the outcome. I can see that happening particularly with the Waverley Railway (Scotland) Bill. If I were an objector, I might think about asking for judicial review if the process changed.

Secondly, if the committee intimates a possible amendment to the promoter and the promoter does not accept it, the committee would have to say, "Okay, we are going to suggest that the bill should not be passed at the final stage." That would be to get to the nuclear option very quickly. If the promoter refused to lodge an amendment, could not the committee suggest its own amendment to avoid an important bill being lost? If the committee lodged its own amendment at that stage, that could allow an important piece of legislation to get through without being thrown out at the final stage.

I will have to defer to Fiona McClean slightly, but I can kick off. When we saw the emerging problems, the possible impact of changing the rules as we went along on the bills that are currently in progress immediately became apparent. That is why we are stressing the urgency of the need to institute changes before we go too far.

We are still at an early stage with the Waverley Railway (Scotland) Bill and we are not instituting any change to the objection period process that we have just gone through. The issue arising with the Stirling to Alloa line is probably more pertinent but, again, we have been careful to try to get in before the start of the process. We do not want to enter into a process and then change it in mid-stage. However, the imperative for us was to make the change rather than to ignore the issue.

Bruce Crawford mentioned judicial review. One of the reasons why we are suggesting the changes is that, if we did not include the loop process, those who might be affected would have no chance to object to the bill or any proposed amendments—they would have a chance to judicially review the bill either as it was going through the process or when it was passed. By including the loop, we are taking steps to prevent judicial review.

The loop might prevent a potential objector from seeking judicial review. However, even with the loop, could an objector who had not won their case not come back at the end of the process and suggest that, because the process changed and the game was not the same at the end as it was when the process started, the organisation that promoted the bill, or the Parliament, had not acted in a reasonable way and that there was therefore potential for judicial review? That risk might be small, but I just want to clarify what might happen.

The risk is very small because the objector would have to show that they had been affected and that they had been a victim of the change. We are at the start of the process with the Waverley Railway (Scotland) Bill—the private bill committee met this morning. It has been agreed that, before the preliminary stage, the officials will meet all the objectors to discuss the procedure. That is what we have done for the other bills. We have not yet reached the stage of discussing the process with the objectors. If the guidance is changed, the new process will be explained to them.

I cannot remember what stage the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill has reached. Has it gone past the stage where a loop could be introduced?

We are just about to start the consideration stage. One of the reasons for the urgency of the changes is that the promoter missed including in the bill the closing off of a right of way at an accommodation crossing and now has to amend the bill in order to shut down that right of way. That could affect people who, although they were aware of the bill because the railway line will cross their land, were not aware that the crossing would be closed. The promoter of the bill is leading with that amendment.

That is useful, but it does not deal with my second point.

On the second point, the nuclear option would be for the bill to be thrown out or for the promoter to withdraw it. As you say, another option would be for the committee to take the matter on, instead of the promoter.

Will it be specified in the new guidance that the committee could take on the amendment if it wished?

It is important to bear in mind the fact that the bill is a private bill not a public one. The promoters have a commercial interest. The Parliament cannot force the promoters to build a railway on a certain route. The promoters are always going to be able to choose to walk away from the project.

I understand that the promoters could walk away at any stage—that is their choice. However, if the committee felt strongly enough that the bill had to be amended, it could, rather than throwing out the bill, force the promoters into a situation in which they had to withdraw it. As long as that provision exists, I am happy.

On the possible changes to the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill, are you aware that the promoter has argued that people have always been aware that changes were a possibility and that they have had plenty time to object? Communities were given a huge amount of notice of the scheme. Would the new procedure be used in every case in which there was an amendment to a scheme? New 60-day periods of consultation late on in a scheme could have a significant financial impact on the scheme and could make a big difference to its viability. Did you take that into consideration in proposing the changes?

You say that people have been aware of the railway—

That is what the promoter said; I was not making that argument.

The issue is that people are not entitled to object unless they will be affected by the bill. Even if, in principle, a person objects to the bill, the objection is admissible only if they show that they will be affected. Only people who would be affected have the chance to lodge an objection. Even if people have known about the bill since it was proposed, they have the opportunity to object only when it will affect them.

My second point was about the financial impact on promoters.

We are aware of the financial impact. However, if we did not put in a loop and give people the chance to object, the alternative would be the possibility of a challenge. If the bill were held up in the courts, there would be further delay.

So you do not think that people will be more reluctant to produce schemes via private members' bills because of the new loop process.

The issue does not pertain to members' bills; only to private bills.

Sorry. I meant private bills.

I do not think that people will be more reluctant because the rationale behind private bills is to allow private interests to take additional powers. We are simply trying to make the system that we have more robust and to give more assurance to people who introduce private bills.

Like Mark Ballard, I do not know much about the private bill system. Given that we have had only a couple of private bills, nobody has a great deal of experience of them. Forgive my ignorance, but will you explain what discussion goes on with individuals or companies who wish to produce a private bill? Is the process explained to them? Is it made clear that the proposal that they bring to the Parliament and put on the table should have had a lot of work done on it? For example, with the Stirling-Alloa-Kincardine railway line, was it made clear to the promoter that they had to say what the route was and consult on it and that there could be no changes to the route? Are such issues explained in detail?

Long before the introduction of a private bill, a lot of engagement takes place with the promoters to explain the process. To my knowledge, all the private bills that we have seen so far have been drafted by parliamentary agents who have huge experience in these matters. Promoters get advice from parliamentary authorities and they also seek independent legal advice. When promoters come to us, they are fully aware of the process and what they should look out for because they are backed up by experienced advisers. We ensure that we have meetings with the promoters to explain the processes and to answer any questions.

So presumably the promoters would be fully aware of the right of an objector further down the road to seek a judicial review, and they would know the length of time and the costs that that would add to the project. Have you consulted the promoters of this session's four private bills on the proposed changes?

No, we have not, to tell the truth.

We have not consulted on the paper. We have discussed the process with the promoter of the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill, because they will be involved. It is fair to say that the promoter is just as keen, if not more keen, than the objectors to ensure that the process is in place before the bill is passed, because that is in their interest. The last thing that the promoter wants is a challenge to the bill after it has been passed. However, we have not consulted the promoter of the Waverley Railway (Scotland) Bill.

Why have you not consulted them? Is this a first step? Since we consult people, and they complain about the number of times we consult them, why have you not consulted? I realise that you do not have a crystal ball and you do not know who is going to come forward with a private bill, but there is a group of people who have already started the process.

To be honest, a significant time element was involved. We have come to the problems as we have progressed, predominantly with the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill. The problems were identified in such a short period of time that our first inclination was to come here to try to address them before they proceeded too far. As Fiona McClean said, we have talked to the promoter of the Stirling-Alloa-Kincardine and Linked Improvements Bill about the changes, so they know about them. However, given the timescale with which we have been working, it would not have been feasible to consult widely. At the back of our mind has always been the fact that the objective is to keep the process going in the interests of everybody, including the promoter.

There might be an opportunity over the next wee while to consult.

Bruce, is your point related to this issue?

Yes. I would not raise it if it was not.

I meant, is it related to the issue under discussion?

Yes. It is about objectors. Cathie Craigie makes a fair point. There are issues about the bills that have already been passed. Are you concerned that someone will look at the process and come back and say, "That was not available to me"?

No. The two bills that were passed do not raise any issues, because there were no amendments that affected new objectors.

I sat on the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill Committee. That bill was purely about navigation rights and fishing rights in the area of a proposed wind farm. That was our remit, but endless numbers of people lobbied me about the rights and wrongs of having the wind farm where it was. That had nothing whatever to do with the committee that I was sitting on, but it was quite impossible to tell people that my remit was the committee's remit. Is there any way of making the public aware of what such committees actually do? That would avoid MSPs having to write endless numbers of letters in reply to people saying, "It is none of my business." It does not look as if it is none of your business when you are sitting on the committee.

About three quarters of the way through the process of the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill, the promoters suddenly decided to get rid of one of the sections that they had been fighting for, because there was doubt about whether it was within the competence of the Scottish Parliament or the Westminster Parliament. The bill has received royal assent, so they must have sorted that out, but at some point during consideration of the preamble to the bill, one would have thought that that point would have come up. How could you prevent that sort of mistake from happening again? We got ourselves into a peculiar situation whereby a lot of people ended up voting for something that they had been arguing against, or voting against something that they had been arguing for.

I am not entirely sure how relevant that is to the item before us.

It is a practical—

It is not specific to the issue that we are considering, which is the lodging of amendments to a scheme at a later stage.

On informing objectors, the clerks hold meetings with potential objectors to let them know what the bill is about and what the process is. There were particular difficulties with the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill, because it was hard for people to grasp the concept that the bill was not about wind farms. In hindsight, I can see that perhaps, as officials, we could have done a wee bit more to educate. That situation does not pertain to all the transport works bills that we are talking about, because the subject matter of those bills is clear. However, the subject matter in the case of the Robin rigg bill was not. We inform people best through public information exercises that ensure that people know what is what and what the bill is talking about. I hope that members of current private bill committees do not have the same difficulties that Jamie McGrigor experienced with the Robin rigg bill.

The competence issue was raised by the promoters. First and foremost, a private bill, just like any other bill, gets a certificate of competence from the Presiding Officer on introduction. We stood by that at the time.

I understand where you are coming from; I just want to raise a practical issue. There might be situations in which an amendment brings somebody new into the process. I am thinking of the railway line at Larkhall with which I am involved, which was not caught up in the process that we are talking about. The council could have been brought in as a potential objector, but it was one of the co-sponsors of the relevant bill. Why would we then have needed a 60-day objection period, which would just hold up the process? Is there scope for having something that says that the committee has the flexibility to allow up to 60 days for objections, but if there is no need for that, it can have a 10 or 15-day objection period?

That is exactly what we are recommending. In cases in which we were able to identify all the potential objectors and get them to confirm whether they would be objecting, it would be left to the committee's discretion to decide whether it wanted to say, "We have identified everybody, so we don't really have to stay with the 60-day period; we can shorten it and move on."

That is not clear from the paper. I would like that to be expressed more clearly so that it stands out.

I agree with Karen Gillon. The paper appears to suggest that an objection period of 60 days applies normally and that objections would be considered only after that period was up. You indicated in an answer to an earlier question that if all the potential objectors had either objected or said that they had no objection, the committee could start the process of dealing with objections sooner than the end of the 60 days. It needs to be clarified that 60 days is the maximum period and that committees can exercise discretion and get on with the job when they know that everything is sorted out.

Sure.

Are there any other questions on paragraphs 5.43 and 5.44 of the revised guidance on private bills, which are mentioned on the second last page of the paper?

Could Ken Hughes build in something that says that the committee has the flexibility to judge whether to have an objection period of up to 60 days?

Yes.

We envisage that the period will normally be 60 days to ensure that new objectors have the same rights as the original objectors. The committee will have the discretion to shorten that period only if all potential new objectors can be identified and have confirmed to the committee whether they want to object.

I think that that should be made clearer in the paper.

I agree.

If members have no other questions on that specific area, I will move on. Subject to the amendment that we have just suggested, are members content to approve that part of the guidance?

Members indicated agreement.

The other section of the paper suggests that objections to the whole bill should be dealt with at the preliminary stage instead of at the consideration stage. Are members happy with that suggestion?

Members indicated agreement.

It is eminently sensible.

I thank Ken Hughes, Fiona McClean and Rodger Evans for their evidence. The Official Report will show that we have agreed to the changes set out in the guidance, subject to the amendment that has been suggested.