Transport and Works (Scotland) Bill: Stage 1
With us for item 1 on the agenda we have Tavish Scott, who is accompanied by Frazer Henderson, Andrew Brown and Catherine Wilson. I think Tavish intends to make an opening statement, following which we will ask him questions. The interest of the committee in this bill is very much to do with the parliamentary and democratic aspects. I hope that we can concentrate on those.
I invite Tavish to set out his stall.
I am grateful to the committee for adjusting its timetable today. I am going to meet our colleagues on the Local Government and Transport Committee later this morning, which is why I have to move on. I welcome the opportunity to share my thoughts on the bill and on the Procedures Committee's interest in its proposals and approach.
The principal importance of the bill—and, I suspect, the principal point of interest for this committee—is the extent of Parliament's engagement in the proposed order-making process, which is what I want to concentrate on this morning. First, however, I want to stress my belief that the principal focus of the bill must be on outcomes—it is about transforming the transport infrastructure of the country. In order to deliver that outcome, it has always been our intention to have a simple, straightforward and efficient process. Anyone who has served on a private bill committee—I have a list of those members with me and spoke to one yesterday—knows the level of intensity of effort that that takes. Serving on such a committee requires a considerable commitment from members, the people who promote bills on behalf of the Executive, local government and the other partners. It is important to acknowledge that.
It is also important that a process has the confidence of promoters, the people who will be affected by proposed developments and the wider public. The intention is that the bill will strike a balance between natural justice for the people who may be affected by a transport development, and the efficiency of the process, which many see as being equally important.
I am keen to ensure that there is consistency of approach across all order-making processes for transport developments. I suspect that many members will be acutely aware of the current difference between the ways in which road and rail projects are handled. When we announce a major roads project—when Government agrees to spend considerable amounts of taxpayers' money on such a project—the process is very different from that for a major rail project. I do not appear before private bill committees in relation to major roads matters, but I do appear before such committees in relation to major rail projects. Yesterday I appeared before the Airdrie-Bathgate Railway and Linked Improvements Bill Committee. Through the Transport and Works (Scotland) Bill, we are seeking increased parliamentary scrutiny of existing legislation on road and harbour developments, in order to achieve consistency with the approval process for railway, tramway and canal developments, as is set out in the bill.
As members are aware, the intention is to apply parliamentary scrutiny proportionately. Transport developments that are of national significance will be subject to parliamentary scrutiny, but lesser developments that address local transport concerns will not be subject to such scrutiny. It is important to emphasise that, under the bill, MSPs will have a much more focused role in engaging with transport projects than they have as part of the private bills process. Members will have an opportunity to influence transport projects at the early stages of development, through various transport strategy documents that will culminate for nationally significant projects in the national planning framework. Members who have studied, or are involved in scrutinising, the Planning etc (Scotland) Bill will be aware of how it is planned that the framework should operate.
The national planning framework will be subject to consultation, parliamentary review, parliamentary consideration and parliamentary scrutiny. Scrutiny of the framework will establish both the national policy context and the principle of the proposals within it. That approach is consistent with the spirit of the proposals that the Procedures Committee made in its report to Parliament last year. I am grateful to the committee for that report.
Promoters will be obliged to engage with members whose constituencies will be affected by a proposed development, in order to ensure that members are fully engaged and are able to influence the design of a transport project that affects their area. Our proposals also confirm the role of Parliament in approving developments that are of national significance. All orders in respect of national developments will be subject to the affirmative procedure at the end of the process. Parliament will be involved at two stages: first, via the national strategy documents and the national planning framework; and secondly, at the end of the process, through the affirmative procedure.
There are also existing mechanisms that Parliament can apply to scrutiny of projects. Many members and commentators argue that Parliament's committee structure is one of the most important aspects of our young and evolving parliamentary democracy. We have a Finance Committee and Local Government and Transport Committee that are charged with scrutiny of the finance of the Executive's transport investment plans, and of particular projects and the principles behind them. Parliament will have as many opportunities as it wishes to take for committees to scrutinise individual projects or the transport programme as a whole.
I have no doubt that the Local Government and Transport Committee will interrogate the findings of the strategic projects review as it flows from the national transport strategy over the next couple of years. That committee can investigate expenditure against policy objectives and does and will require the Minister for Transport of the day to account for policy and investment decisions. That is as it should be.
Through the bill, I have sought not only to provide Parliament with statutory opportunities to influence transport projects—particularly those that will have public money attached to them—but to build on the existing processes in respect of how Parliament scrutinises Executive spending and policy decisions.
The bill makes no distinction between consideration of developments that are promoted by ministers and developments that are promoted by other parties. The development, not the promoter, is the key to consideration. All promoters will have to provide similar levels of information and to operate within the legislation. All information will be available for public scrutiny. All decisions will have to be supported by detailed, justifiable reasoning and, of course, will be made public. Therefore, there will be no actual or perceived advantage for projects that are promoted by ministers.
In previous years, the Executive has provided both financial and other support to promoters who have, in the main, progressed developments in which we have shared objectives. My intention is to be more transparent about ministers' involvement in the future. Transport Scotland, on behalf of ministers, would promote rail projects, in addition to its current responsibilities for road schemes. We are seeking to achieve consistency between how we promote a road project and how we promote a rail project, which is what Transport Scotland was set up to do. It is important that we achieve such consistency, and that we achieve transparency in the lines of accountability and greater distinction of roles and responsibilities.
Our proposals are very much in line with the spirit of the Procedures Committee's recommendations for appropriate parliamentary engagement and accountability. Importantly, our proposals, on which we have conducted extensive consultation, have the overwhelming support of stakeholders.
I hope that that was an adequate summary of the proposals. I will do my best to answer the committee's questions.
Thank you. The committee responded to the consultation document that you produced in a letter that I signed on 25 April, so I think that you will be aware of some of our concerns. Nobody wants to keep the status quo, but we are concerned about the checks and balances in the procedures that you recommend. We highlighted three points in the letter. We said that there should be initial parliamentary consideration; that there should be a stronger system of parliamentary approval at the end of the procedure for Government proposals rather than third-party proposals; and that all applications should be open to some parliamentary consideration, not just the ones that the minister thinks are sufficiently important. Will you address those points that the committee made in its letter?
Yes. There will be stronger scrutiny of Government proposals for road and harbour developments. Most of us have been here for seven years and we know how the process of scrutiny has operated. I argue strongly that we are enhancing Parliament's ability to monitor proposals for such transport projects.
You mentioned the Parliament's ability to influence developments at the outset. I was clear in my opening remarks that our production of a national transport strategy this year and the strategic projects review, which is under way—both of which will be heavily interrogated by members in all the forums that are open to them in Parliament—will provide an early stage of engagement in transport projects, in addition to members asking questions every Thursday. Believe me—such questions do come up every Thursday; some of my colleagues manage to take questions only once every three weeks, but interest in transport never goes away. That is a good thing for Scotland. I do not think that there is any doubt about the level of scrutiny of both policy and process.
In addition to the strategy and the projects review, which relate to major capital projects throughout Scotland, there is also the national planning framework, which will of course be subject to the eventual Planning etc (Scotland) Act. I am sure that there will be opportunities for members to ask precisely how that framework is going to work as the Planning etc (Scotland) Bill takes its course.
Ministers strongly intend that there will be full parliamentary engagement with the process and with the structure of the national planning framework so that there is parliamentary approval at the appropriate stage.
One of the issues that the convener raised was the difference between projects that will be put forward for final parliamentary approval and projects that will not. The committee's response to the Executive's consultation refers to parliamentary approval being required for applications for
"projects of ‘national strategic importance'".
In practice, will subjective decisions have to be made? Would it be more desirable to ensure that virtually all projects are put forward for parliamentary approval, even under the negative procedure?
I do not agree that all projects should come before Parliament. Is Mr Johnstone saying that we should micromanage local authorities' roads budgets simply because we ultimately fund those budgets through the grant-aided expenditure system? I am sure that he is not; I am simply taking things to their logical conclusion, but if he is saying that, I do not agree with him.
Mr Johnstone will be acutely aware that we passed the Transport (Scotland) Act 2005, which set up regional transport partnerships. I strongly believe that those partnerships should have a capital allocation. We have given them a two-year capital allocation, and I hope to do more about such allocations to them in future years. I am sure that the same approach will continue after the election, irrespective of who is in charge, because it makes good sense. We do not know best what the best local transport solutions in the north-east or anywhere else are, so it is logical to devolve decision making for such projects to local authorities or regional transport partnerships.
Mr Johnstone made a fair point about judgment calls having to be made about what is and is not nationally significant. Ministers have not reached conclusions on that tricky matter, but we are considering it. A relatively small project in monetary terms that tackles a strategic pinchpoint on a road or rail network could make a phenomenal improvement—I am thinking of a passing loop project in Ayrshire, on the Ayr to Glasgow rail line, which would make a phenomenal improvement to the efficiency of our rail services on the west coast of Scotland and improve the transport system there. It could be argued that such an improvement would be nationally significant. It would potentially cost £15 million, and we should simply get on with it. It would not be right to hold it up in endless parliamentary procedure. I agree that judgment calls will have to be made, but I am sure that Parliament will properly scrutinise and decide whether judgments that have been made on what is or is not nationally significant are right.
I was ungenerous in not acknowledging that you had greatly improved things with regard to roads and harbours—you get a brownie point for that.
Let us consider, for example, a quite important road proposal in the north-east of Scotland that is deemed not to be of national significance. Who will decide whether there will be a public inquiry? Could the council organise a public inquiry or would the minister have to say yes or no to one? One of our recommendations is that there should almost automatically be a public inquiry, which could be modest if a small development is involved. Will you explore that matter?
Yes. I apologise for not being clear at the outset. Nothing will change with respect to roads. If there are local objections under the existing statutory processes—which the convener will remember from his local government days—what has previously happened will continue to happen. If a local bypass or a local upgrading of a road is proposed and there are formal objections to the proposal, a local public inquiry will take place, just as it currently would. There will be no change in the right of individual citizens to object formally. Statutory undertakers, landowners, householders or people who own a house in the area will still be able to object.
You mentioned a railway loop project, which could have an adverse effect on the local geography for residents. Would they have a chance to have a shout about what was proposed?
Yes. In any rail project, there is an inquiry mechanism both for statutory undertakers and for people who might be directly affected by the passing loop. For example, if someone's house lies on a loop's proposed route, that will usually be handled by what is known as advance purchase: indeed, the bill refers to and makes provision for that agreed procedure.
Before I became a member, this august committee held a detailed inquiry into and made a series of recommendations on the process. In response to the Executive's consultation document, it decided to repeat those recommendations. What representations did you receive in response to that document that persuaded you that the committee was wrong?
Mr Ballance cannot have been listening to my earlier comments. We have not said that the committee is wrong; instead, we have broadly accepted the committee's approach, which has been supported by our consultation. For example, we have enhanced the parliamentary scrutiny of road and harbour facilities. As far as rail projects are concerned, anyone who has served on a railway bill committee knows that that process has to be changed. I do not accept for a moment that we have ignored the committee's findings—in fact, quite the reverse is true. The basis of your question is simply wrong.
Perhaps I should clarify my question. What responses to your consultation persuaded you to omit the fourth and sixth steps in the process that the committee recommended, both of which require parliamentary involvement?
We have to reach a judgment on such matters—
What responses did you receive that persuaded you to reach that judgment?
I would like to answer the question instead of being interrupted by Mr Ballance.
We have reached a judgment on the matter. Mr Ballance clearly disagrees with our decision. However, I notice that he has never served on a private bill committee, so he is not in a great position to lecture the rest of us on how tough the process is or how much time it involves for a lot of members.
My overriding consideration was the very strong representations that I received from all the political parties—I stress that for Mr Ballance's benefit—about their concern that the current process is disproportionate with regard to the time that members have had to spend on it and the level of scrutiny that is required. With the Airdrie to Bathgate rail link, which I was discussing in committee yesterday, the Government's proposal emerged from the central Scotland transport corridor study on ways of reducing road traffic on the M8 and improving public transport links. If Government decides to move forward with such a proposal, the proposal itself becomes open to all kinds of scrutiny, which we are seeking to enhance both through the processes that we have discussed this morning and through the national planning framework. I believe that such moves represent steps forward in parliamentary scrutiny. In any case, we have to make a judgment call on the level of scrutiny that can be carried out without slowing the process down even further. As we know, MSPs and bill promoters have been deeply concerned about that. We believe that we have made the right decision.
So, I am right to assert that none of the responses to the consultation recommended that you drop the fourth and sixth steps that the committee suggested.
No—Mr Ballance is quite wrong about that. We received representations on that matter. Indeed, given that the issue is arousing such interest, I will go through the three points that the committee made about the matter that Mr Ballance has raised. I state for the record that, in the consultation, stakeholders were against the three points.
The committee said that the process could risk being delayed by the parliamentary timetable—[Interruption.] Sorry—this is what stakeholders said—[Interruption.] Let me start this again.
Will you also be clear about which stakeholders you are talking about?
On the committee's comment that Scottish ministers did not believe it to be necessary or useful to have parliamentary consideration after the objection period, stakeholders in our consultation made three points: first, the process could risk being delayed by the parliamentary timetable; secondly, scrutiny at that stage would pre-empt detailed consideration of the project by a reporter; and thirdly, a full consideration of the issues would be required by Parliament to make an informed judgment. As a result, they felt that such an approach would not be conducive to an efficient process.
We have a situation in which ministers may themselves introduce the project and will
"undertake pre-application scrutiny to ensure that the documentation"
is correct. Ministers will determine whether a project is of national importance. Ministers will also
"decide whether the application is procedurally correct".
Ministers will "appoint an independent reporter", and after the report ministers will
"decide whether to proceed with the final Order".
We will then be presented with an affirmative instrument on which there is the potential for one three-minute speech for and one three-minute speech against in Parliament. That is your definition of appropriate parliamentary scrutiny.
Until his final loaded point, Mr Ballance missed out the role of parliamentary scrutiny. There is parliamentary scrutiny at all stages of the long list that he read out.
Mr Ballance's view is suspect. What we have created, what we are discussing today on the Procedures Committee and what we will ask Parliament to consider later in the autumn is a process in which parliamentary scrutiny will be involved at every stage. The parliamentary scrutiny will be of a variety of different natures and in many cases it will be stronger than it was in the past. Therefore, Chris Ballance is wrong to infer that there will be no parliamentary scrutiny. I do not accept that and I will never accept it. As a democrat, I do not believe that such an approach would be the right way forward. Ministers are not control freaks who want to do things for the sake of doing them. They are here because Parliament is here and they are accountable to Parliament every day of every week. It is wrong to suggest that there will be no parliamentary scrutiny in the process and I will not accept that suggestion.
For the record, I make it clear that I am not inferring that there will be no parliamentary scrutiny; I am inferring that there will be no adequate parliamentary scrutiny and that what little scrutiny there will be is entirely inappropriate.
I fundamentally disagree.
Can we clarify the extent of parliamentary scrutiny that is possible when an affirmative instrument is presented to Parliament? My understanding is that a debate of up to 90 minutes can take place. Although such a debate has traditionally taken place in committee, it could happen in a meeting of Parliament.
That is my understanding of the procedures of Parliament, but this is the Procedures Committee, so I will be guided by its greater knowledge.
The current position is that if the instrument is considered by a committee—
As I understand it, the process under which we deal with an affirmative instrument allows debate of up to 90 minutes. Although in the past that has usually taken place in committee, there is nothing to stop it happening in Parliament should the Presiding Officer decide that that is appropriate.
That is perhaps a point to consider for our recommendations.
The current rules are that in Parliament there can be only one speaker for and one against a motion on an affirmative instrument. It would be necessary for us to change the rules to permit a 90-minute debate.
We recently had the medical fees debate in Parliament, in which a speech from each party was followed by a speech from the minister. I presume that that was under the affirmative procedure, so I do not see why the same approach could not be taken in the situation that we are discussing today.
That debate took place following a motion being passed to suspend standing orders.
Could we not do the same thing in this case?
We can examine standing orders.
I take Chris Ballance's point about the importance of parliamentary scrutiny. However, I have served on a private bill committee and it became clear that there was far too much parliamentary involvement and scrutiny in the old process. In some ways it was not very good scrutiny. It seemed bizarre that we put hurdles in the way of major rail projects when it is much easier to build road projects. The minister has made important points about the consistency of the approach.
I also take the minister's points about the different stages of parliamentary involvement. I know that the committee made it clear that it wanted two parliamentary points of involvement. It seemed bizarre that in the old process Parliament agreed the general principles then took another vote at the end. The debate on the bill after the general principles had been agreed seemed a little bit compromised, limited and in some ways incongruous.
The minister made some helpful points about parliamentary involvement. Members can correct me if I get this wrong, but after the briefing that we had last week, we heard that, if there are no objections to a project of national importance, that project might not go through the parliamentary procedure. Has the minister considered that? Is he comfortable with it or might there be an amendment to cover that situation?
All national projects will be subject to the affirmative procedure in addition to the elements of the process that we discussed earlier, such as the national transport strategy, the strategic projects review and the national planning framework. In addition, without rehearsing the arguments again, it will always be open both to members—through the normal processes of Parliament—and to the Local Government and Transport Committee to examine a particular project if there are concerns.
However, it is fair to reflect that, if there were no objections to a project, we might take the view that something had gone right with the process and that to achieve that position the issues had been teased out appropriately at different levels.
As I understand it, which might not be correctly, the bill weakens the position of local residents with regard to having an inquiry if their property will be blighted but they are not closely involved. Under the bill, they will not have the chance that they get under the existing legislation on roads and railways.
We can check that, but I am not aware that there is any change in that respect. You will be aware that there have been discussions in the Parliament on both the advance purchase scheme and the voluntary purchase scheme in relation to one of our major capital transport rail plans, and we now have those schemes in place. Earlier in the summer, Transport Scotland published a policy in that area specifically to assist with examples of the kind that you mentioned. I am clear that we are not making any change that would be detrimental to those interests.
We will check the point, but I am aware of the issue and we have tackled it through the Transport Scotland policy that is now in place.
This is more a matter for us, convener, but I do not think that there is anything in the rules that would preclude an instrument that is subject to affirmative resolution from being referred to a Committee of the Whole Parliament rather than to a committee. I do not see why that would be impossible.
I am advised that the rules would have to be changed to permit that.
We could make that change to the rules if it was necessary.
It might be easier to get the procedure right in the first place, rather than having to change standing orders.
We come to the matter from different perspectives. I do not want to stop any major road infrastructure projects, but others do. If someone comes from an ideological position of being against major infrastructure development, no process will be perfect and no process will meet their needs if it comes up with the wrong answer.
We have to strike the right balance. Until now, we have not managed to pursue major public transport infrastructure projects at the speed at which many of us in the room would have liked to do so because they have been held up by inadequate processes. If we are serious about driving forward public transport in Scotland, we have to speed up the process and bring it into line with the existing process for roads projects.
I want to probe the minister further on some aspects of the process that has been outlined. If we want to prevent things from happening, we can, but if we want to proceed with major transport infrastructure projects such as the ones that I want to see in my constituency, we have to get the process sorted out sooner rather than later.
That was not a question.
Do you agree, minister?
I do.
Karen Gillon spoke about the need to speed things up. You are aware of a major road project in my constituency that has taken more than 30 years to get to where it is now.
I fully support the bill's objective of making the process more open, transparent and quick. As an example, can you tell us how the A80 proposals would have been affected had the bill been in force?
That is a good but tough question to answer. If that road had not been part of the plan, the strategic projects review would have concluded that it was an important strategic transport investment for Scotland and the road would have become part of the national planning framework, subject to the determination that Alex Johnstone asked about earlier—in other words, that it was nationally significant. At that stage, the project would have rolled through the process that all roads currently go through and will continue to go through.
The important point is that there would have been a parliamentary check, to deal with the cynicism of some, through Parliament's scrutiny of both the strategic projects review and the national planning framework. That process would have taken two to three years. I am sure that we all recognise that resources are an issue, and that could have slowed matters down because, like the infrastructure investment programme across the entire Executive, capital transport projects are subject to the normal constraints of Government spending. However, once the decision had been taken that the project was nationally significant and it had been placed in the national planning framework, the financial argument would have been Parliament's only other consideration with respect to the project.
In short, the bill's proposals should dramatically quicken the process. My only caveat is that it will depend on the road—the linkage that you asked about—or whatever being seen as being nationally significant.
I am not saying that there was anything wrong with the previous procedure, but people found it strange that one man had all the power to make the final decision. Crucially, if the bill is passed, there will be an element of parliamentary scrutiny of the process, which was missing before.
Absolutely. There would be parliamentary scrutiny. Ultimately, the Scottish ministers are accountable for decisions that are made on the approval of, or disagreement with, the findings of local public inquiries. That will continue, and nobody is seriously suggesting that we should change that. Someone has to make the ultimate decisions, otherwise nothing would happen in life—as Karen Gillon pointed out. We live in a democracy and the ministers who make those decisions are accountable to Parliament for them, as they should be.
The policy memorandum raises the possibility of reconsidering the local public inquiry rules to allow objectors who are not legally trained to receive financial assistance. Has that idea been taken any further?
Frazer Henderson, our bill team leader, will deal with that point, as I do not know the detail on it.
Frazer Henderson (Scottish Executive Enterprise, Transport and Lifelong Learning Department):
If an objector seeks initial legal advice, publicly funded advice might be available if it relates to a matter of Scots law. Eligibility for such public funding will be granted in accordance with some statutory tests that will be performed by solicitors. Information or advice on the availability of such public funding will be available from the Scottish Legal Aid Board.
In addition, the Executive will administer the process, and we intend to provide procedural advice to objectors on the process itself. So, in addition to advice from the Scottish Legal Aid Board, substantial procedural advice will be produced by the Executive next year, once the secondary legislation is in place. It will provide advice to objectors on the processes that they must go through and on where they can find assistance.
I understand that an objector is not able to make a submission to the Scottish Legal Aid Board at the moment. Will you confirm that?
That is my understanding although, in certain circumstances, the Scottish Legal Aid Board will view applications favourably. I am more than happy to send a note to clarify that, if that would be helpful.
Thank you. That would be useful.
When the committee drew up proposals some time ago now, it tried to address the need to have a stronger alternative to the minister's view, so it proposed a super-affirmative procedure. I was not involved at the time, but I understand that there was a concern that, for example, a minister might be very keen on a railway from Bathgate to Airdrie, for perfectly good political reasons, and so propose one, and would then make the decision on whether the project should go ahead in that particular form. I am not at all expert in human rights, but is it not possibly contentious to have the minister be the judge in his own case? Is there not an argument for re-examining the committee's suggestions for a super-affirmative procedure in the case of a Government proposal on which the Government will make the decision?
The Government makes proposals on policy issues every day of every week, including on rail lines. If we are blunt about it, it is the Government that is promoting all the rail lines at the moment, using the private bill procedure that we inherited from Westminster. Being a former member of that Parliament, the convener will know more about the private bill procedure than I do. The blunt truth is that we are promoting those schemes and, broadly, we are paying for all of them to a greater or lesser extent. They are Government projects. As I said in my opening remarks, we propose that we should be blunt and transparent about it and say that they are Government proposals. Without rehearsing all the arguments again, the checks in the system in respect of parliamentary scrutiny are important in that regard.
Let us take a hypothetical example. The Parliament might, for whatever reason, be opposed to the Airdrie to Bathgate line and think that it was not the right investment for Scotland because there was suddenly a better transport solution or different spending priorities. That would be entirely fair; indeed, it might be the subject of a future debate in Parliament. I cannot envisage the Minister for Transport of the day deciding to proceed with the measure in a national planning framework or through the strategic projects review in the face of total parliamentary opposition—by that, I mean across-the-board parliamentary opposition.
If it were a case of the Opposition saying, "We don't like this," and the Government saying that it is going to do it, if the Government had a majority, as a democrat I would go with the Government position. However, if Parliament as a whole said that there was something fundamentally wrong with the project or there was some other argument against it—I struggle to conceive what that might be—and Parliament, including back benchers of Government parties, told the Government that it had got it wrong, I suspect that the minister of the day would be in a whole load of trouble. There is a political process and a dynamic in our Parliament that is very active in that way.
Given all the steps and measures that were put in place following consideration by the committee, I think that it would be unnecessary to ratchet things up to the next level. However, we will obviously listen to the committee's conclusions on that point.
On a point of information, you mentioned the stakeholders group. Where can we find information on that? There is no reference to it in the papers supplied to the committee.
I am sure that we can write to the committee on that.
That would be helpful if there is a public document.
We have talked quite thoroughly about the issues that concerned the committee. Different views will be held by different people but we are clear about the facts and the minister's position. I thank the minister for his attendance. We will let you off in time for your next meeting.
Meeting suspended.
On resuming—