Private Legislation
We are supported for this item by Carol McCracken; Bill Thomson might join us later. They are the prime movers behind this matter.
There is a background paper and a full report, and we also have the exemplars that the committee requested at the previous meeting. I am sure that everyone has carefully read the orders that were produced by the Edinburgh Merchant Company, Railtrack and Comhairle nan Eilean Siar.
Mine have not arrived—I look forward to reading them when I get home.
If you wish to read mine this afternoon, Michael, you are very welcome.
Our idea, Carol, is for you to speak to your report before we discuss it.
Carol McCracken (Director of Clerking and Reporting, Scottish Parliament):
At its meeting on 8 June, the Procedures Committee accepted a paper setting out some of our concerns about the current rules for processing private legislation in this Parliament. The paper explained that a small working group of officials had been set up to review the rules and to draw up some recommendations for the committee to consider. The report that members have in front of them represents that work; the clerk to the committee has drawn up some proposals for taking evidence on the matter and for taking the report forward.
I am very grateful to Gavin Douglas QC, the senior counsel to the Secretary of State for Scotland on private legislation, and Joe Durkin, from the Society of Parliamentary Agents, for their input into the working group report. That input was invaluable, as, given their experience, they had more expertise than all the officials put together. I also thank officials in the Scottish Executive.
The paper includes examples of private legislation. One piece establishes a causeway between South Uist and Eriskay and another provides for the redevelopment of Waverley station. In general, private legislation is introduced by an individual or body to benefit themselves. The legislation relates to their private affairs and should not include matters of public policy; if it does, it is no longer private legislation. The main aim of any procedure for processing private legislation through the Parliament is to ensure that other people's interests have been taken into account and to deliver a fair and equitable system. The report speaks about the quasi-judicial nature of any system for considering proposals for private legislation.
Rule 9.17 leans heavily on existing practice for public bills, which is not appropriate. Questions have been raised about its practical application. There are gaps in our understanding of how a private bill would be amended, what the process would be and how the promoter and the objectors get their suggestions over.
Some of the problems were listed in the paper that came before this committee in June. Section 3 of the report sets out the case for changing the rule, so I will not dwell on that. I will deal with the proposals in detail. This matter is not being presented to the committee as a fait accompli; the move is being made at an official level and we see it as the committee's role to take evidence from the interested parties and to weigh up the politics of taking it through the Parliament. The procedure that the group is putting forward as a basis for your consideration is set out in section 5 of the report on page 13.
I will list the main differences between the procedures that are proposed for private legislation and those that exist for public legislation, with which the committee will be familiar. Many more additional documents would be required with private legislation. They include what we are calling a promoter's memorandum, setting out the need for the private legislation, an estimate of expense and a statement explaining ways in which landowners and others with an interest in the legislation have been notified. Standing orders would place an onus on the promoters of private legislation to complete certain tasks—such as submitting those additional documents, arranging for newspaper advertisements and so on—before a bill comes before Parliament. That ensures that everyone who has an interest has been informed. We propose that the process would be set out broadly in standing orders and that the details would be determined by the Presiding Officer and set out in guidance.
The procedure provides for objections to a bill to be lodged with the clerk. The hope is that landowners and so on who have been notified will sort out any objections with the promoter before the legislation comes before the Parliament. If that has not happened, they can lodge their objections. The Parliament's role would be to ensure that, where possible, all the objections had been balanced and that some sort of fair arrangement had been arrived at.
In a change to rule 9.19, we are proposing for each piece of private legislation the appointment of a small private bill committee. I should point out that we are not expecting to be inundated with private legislation. Based on his experience with private legislation, Gavin Douglas has said that the committee might take four or five days to consider the legislation, unless the matter was contentious, in which case it might take longer. We propose establishing a small committee with up to five members, with some limitations on who should be on the committee. We suggest that members who have a constituency interest should not be on it, as it should be seen as a judicial committee that is free of vested interests.
The Procedures Committee will want to consider whether that size of committee is acceptable politically. Obviously there are questions about political balance. The view of the group was that, as private legislation does not deal with matters of public policy, the political balance is perhaps less important; the Parliament could ensure that the parties had been balanced over a period of three or four private bill committees.
We propose—this does not seem to be precluded in standing orders—that those committees are conducted like a cross-examination. In other words, the promoter would be allowed to lead his evidence and ask questions of the objectors. Similarly, the objectors would be allowed to ask questions of the promoters. That is the best way of getting all the facts and evidence before the committee. As the legislation will not deal with matters of public policy, it may not be fair to expect members and their researchers to be briefed on all the issues that are likely to come up. That is why we suggest a cross-examination. It has been part of the procedures to date and the external experts on our group thought that it was a good idea. This is a matter that the committee will want to think about in terms of its implications for other parliamentary committees.
In the Scottish Parliament, it is normally members who put forward proposals for amending legislation. However, given that private bills come in from promoters and external people make the objections, we suggest that, in the first instance, the committee might listen to all the evidence—all the arguments that are made for and against amendments and objections—and at a later stage carry out the section-by-section consideration. We think that that would work.
Another issue that the committee will want to consider when it takes evidence and weighs up how the procedure will work is costs. The issues are set out in paragraph 7.6 on page 28 of the report. The issue of costs is complex and difficult to get a handle on. Westminster does not recover full costs; some costs are borne by the Parliament. However, it has been difficult to get an idea from Westminster of the percentages.
We suggest a flat rate of £5,000 for anyone who wants to introduce private legislation, which is on a par with the current cost of introducing Scottish private legislation, together with full recovery of official report costs, accommodation costs and broadcasting costs, which would vary depending on the length and contentiousness of a bill. We think that that is fair. No doubt you will get a lot of evidence from promoters and objectors on this subject.
The group's report also touches on harbour revision orders and other orders that are subject to special parliamentary procedure. The procedure for those and the statutory background to them are complex; the group did not have time to consider the issue fully. We were considering private legislation because of the date in standing orders, which suggest that any bills could be introduced on 27 November. We were keen for revised proposed procedures to be introduced before that time. The only way to change existing procedures for the harbour revision orders and the special parliamentary procedure would be by an act of the Scottish Parliament. We recommend that, once the private legislation procedures have bedded down and we have learned from them, we should bring forward proposals on the procedure for harbour revision orders, which might make them more consistent with what we are doing on private legislation.
The purpose of the discussion is not to go over the whole report. As Carol McCracken explained, the report is to provide us with the basis for collecting evidence and producing recommendations.
Do members want clarification on any points or do they want to ask questions about aspects that they feel are not wholly covered?
Having read the report, I think that we should support the group's first option, which is set out on pages 9 and 10, rather than the second option. I do not know whether it is legitimate to agree now to do that, but that might reduce the amount of bureaucratic activity thereafter.
Moving on to page 29, I would be unhappy if the objectors had to pay substantial amounts. Could an arrangement be made whereby those whose objections were frivolous, mischievous or naughty would be stung, but anyone who had a reasonable objection would not be? I know that it is difficult to judge what is a reasonable objection, but bona fide objectors should not pay.
The idea is not that we should judge between the two options, but that we discuss the issues with the witnesses who have been suggested because many or all of them have been, or are likely to be, involved in the private bill process. We are being invited to test the report and its recommendations against the perceptions of other people and to reach conclusions thereafter. The important point to grasp is that there is a tight time scale because of the imminence of the first date by which people might reasonably seek to lodge private bills. We have to be able to deal with them by then.
I have a couple of questions. In recent years, there has been a tail-off in the number of private bills. In the early 1990s, they averaged about three a year—in recent years there has been only one a year. It appears that railway bills have disappeared. I presume that that is the result of the changes that have taken place in the railway industry in recent years. One might assume that railway bills will reappear. Will they come to the committee, if they relate entirely to Scotland, or will they remain as Westminster private bills?
If a bill deals with an entirely devolved matter, it will come before the Scottish Parliament. If it covers partly reserved matters and partly devolved matters, it will still go through Westminster procedures. One would have to consider the nature of the bill.
It might be that we will have relatively few private bills, but we must have a procedure in place by the end of November.
On a point of information, I am curious about how private bills come about. Is it because issues cannot find their way into Parliament because they seem like small beer in comparison to the work of the Parliament? Has timetabling kept such bills out and are there other reasons why they are introduced?
The reason is simply that a private bill is in the interest of the promoter, so it is different in nature from bills that are introduced by the Government or by a member. Such a bill could come before Parliament only if it were raised by an individual. Am I missing the point of the question?
The point is, Gil, that the promoter of a private bill seeks powers that ordinary people would not normally have. If Railtrack wants to build a railway line, that requires powers of compulsory purchase, which are usually available only to public authorities. Therefore, Railtrack would have to be given the power by Parliament to develop a specific railway line. Historically, private bills were used often by local authorities before they had powers of compulsory purchase—for example, to set up housing trusts and so on and to allow them to do other things that they were not competent to do.
These days, it is largely a residual practice to promote matters through those who have no statutory function. It seems anomalous that we should examine any harbour revision orders, as most harbour revision orders are dealt with by the minister after a public inquiry, through procedures that are similar to planning inquiries. It seems odd that we had to consider at all the special procedures for harbour revision orders. It is, perhaps, a longer-term issue that we should tidy such matters up.
Private bills are promoted mostly by people who are claiming the power to take land from others, or some similar power, which they can have only if they are given it expressly by Parliament.
There are also some unusual powers that can be granted through private bills. As well as seeking powers that would not usually go to an individual, one can seek Parliament's agreement to do something that is usually outside the law. We heard the obscure example from Westminster of a man who sought to marry his mother-in-law, which they would not usually be allowed to do.
That shut Gil Paterson up.
Sometimes such issues can become very political, although most times they do not. In Lothian and Edinburgh about 15 years ago, the western relief road was a big issue. The matter had to go through private legislation, with a big vote in the House of Commons. Although I was not involved, I can remember reading that the question of lending pictures from the Burrell collection was raised. A private bill can be about giving a public body a power that it does not have, but that is not the sort of thing that a Government should waste its time on. I do not mean to say that the issue would be trivial, but that it is somebody else's issue.
Thanks for that.
The Executive supports generally the approach in section 4.4 of the working group's report, which Donald Gorrie mentioned, and it is happy that the matter should fall to the Parliament to deal with rather than the Executive. The Executive wishes to be included in the list in the clerk's paper of those who would be invited to give evidence. Whether the Executive gave evidence would be another matter, but it should be invited to do so.
I am happy to make that addition and any others that are suggested. We have discussed the report briefly and we have been asked to agree that the clerk should invite any witnesses—the Executive included—to attend the additional meeting on 24 October. That is all that we are required to do today, other than to note the examples and information that have been presented to us. If we hold that evidence-gathering meeting, we will be in a position to make recommendations and to report to Parliament in time for the deadline in late November.
Members indicated agreement.
I thank Carol McCracken.