Transport and Works (Scotland) Bill: Stage 2
Agenda item 2 is consideration of the Transport and Works (Scotland) Bill. I welcome to the meeting the Minister for Transport, Tavish Scott, who is supported by Frazer Henderson, Andrew Brown and Catherine Wilson. For this item, members should have copies of the bill, the marshalled list and the groupings of amendments.
Sections 1 and 2 agreed to.
Schedule 1 agreed to.
Section 3—Crown land
Amendment 1, in the name of the minister, is grouped with amendments 2 and 3.
Most of the amendments under consideration are technical, and many of them address issues that the Subordinate Legislation Committee has raised with this committee. I apologise in advance for some of the somewhat dry and legal explanations of some of these measures.
Members will be aware that, as part of the drafting process, we are required to provide the Queen's representative with a draft of our proposed legislation. We subsequently received representation from the Queen's solicitor to adjust the bill to cover Her Majesty's interests in the private estates. We are happy to accede to that representation, which is why we have lodged these amendments.
I move amendment 1.
Amendment 1 agreed to.
Amendments 2 and 3 moved—[Tavish Scott]—and agreed to.
Section 3, as amended, agreed to.
Section 4—Applications
Amendment 4, in the name of the minister, is grouped with amendments 5 and 6.
I am grateful to the Subordinate Legislation Committee for drawing to the Executive's attention the apparent contradiction in section 4(7), in which the Scottish ministers seem to have the power to make rules to give themselves special or general directions in providing environmental information to the promoter. Amendment 4 therefore seeks to remove the Scottish ministers from an already non-exhaustive list.
I move amendment 4.
Amendment 4 agreed to.
Section 4, as amended, agreed to.
Sections 5 and 6 agreed to.
Section 7—Model provisions
Amendments 5 and 6 moved—[Tavish Scott]—and agreed to.
Section 7, as amended, agreed to.
Section 8—Objections
Amendment 7, in the name of the minister, is grouped with amendments 8 to 10, 12, 15 to 19, 27 and 28.
Amendments 9 and 10 follow through on the commitment that I gave the committee on 3 October—to extend to regional transport partnerships, navigation authorities and Network Rail the statutory right to require an inquiry or hearing if they raise valid objections to a proposal.
Amendment 7 enables us to be confident that the policy intention will be met through the legislation. It has always been our intention that, as well as objections, positive or neutral views about a transport project should be able to be expressed. We have therefore decided to provide for rules to be made for representations as well as for objections.
Amendments 8, 17 and 19 result from the change established by amendment 7; they ensure consistency of drafting.
As currently drafted, the bill states that the minister is obliged to notify only the person who applied for the order and the people who made an objection that was referred to an inquiry or hearing in accordance with section 9. We think it appropriate that the additional bodies given in amendment 12 should be identified in primary legislation.
Amendment 28 ensures that the drafting fulfils the policy intention. The policy behind section 17(3) as introduced was not to subject the board of British Waterways to any requirement to seek consent or permission from any party when it was seeking to promote or oppose an order under section 1.
Amendments 15, 16, 18 and 27 are technical; they simply improve the drafting.
I move amendment 7.
I welcome the amendments in this group, particularly amendment 7, which adds representations. MSPs who have been involved in private bills have been surprised to find that, to make representations, they have had to lodge objections if they want to be heard. For example, some MSPs who strongly support the Bathgate to Airdrie railway line had to lodge objections before they were able to argue the case for additional stations.
Equally welcome is the fact that the minister have listened to the committee's recommendations on the bodies that should be added to the bill—Network Rail, the navigation authorities and the regional transport partnerships. I am sure that the committee will welcome that, too.
I am grateful for those comments.
Amendment 7 agreed to.
Section 8, as amended, agreed to.
Section 9—Inquiries and hearings
Amendments 8, 9 and 10 moved—[Tavish Scott]—and agreed to.
Section 9, as amended, agreed to.
Section 10 agreed to.
Section 11—Making or refusal of orders under section 1
Amendment 11, in the name of Donald Gorrie, is grouped with amendments 13, 14, 20 to 25 and 51. If amendment 20 is agreed to, I will not be able to call amendment 21 as it will be pre-empted.
Amendments 11, 13, 14, 20 and 51 are in my name. They are a package and relate to the same issue—an issue that greatly concerned the Procedures Committee, which dealt with the bill as a secondary committee to this committee. The Procedures Committee made arguments in its report that this committee did not accept. I made the same arguments in the stage 1 debate, but the minister did not accept them either.
The Procedures Committee did not wish to lodge official committee amendments, but it was happy for the point to be made in amendments lodged by an individual. I am the convener of the Procedures Committee, so I lodged the amendments.
The issue is purely about procedures; it is in no way party political. I do not know whether any party has views on the matter, but we think that the Parliament should have an opportunity to consider all orders that are made under the bill. Under the bill as introduced, some would be considered by the Parliament and others would not. We think that the relevant committee should have an opportunity to scrutinise all orders on public works projects. The committee may be content with what is proposed and nod it through, but we think that committees should have an opportunity to scrutinise all proposals.
Also, the Parliament should have as much say as the minister in deciding which projects fall into which category. Under the bill as introduced, the minister has the power to decide which will be considered by the Parliament and which will not. It would be possible for a minister who was less scrupulous than the present one to cherry pick so that proposals came before the Parliament only if that suited him. That would be unsatisfactory.
The minister argued that the Parliament will have enough opportunities to debate and scrutinise all projects, but the Procedures Committee believes that that is not the case. There will doubtless be debates on the national planning framework, but major rail or roads projects will figure in those debates in only a small way. A speaker might concentrate on a particular project, but it will not be properly debated. Questions to ministers are sometimes of value, but they are not an effective way to scrutinise a proposal thoroughly. The national planning framework and the strategic projects review will give some opportunities for debate, but they will be inadequate opportunities.
I leant heavily on professional advice in lodging my rather complicated amendments. They have the simple effect of ensuring that all orders made under the bill are scrutinised appropriately by the Parliament. Such scrutiny need not hold things up. If the Parliament is guaranteed an opportunity to consider all orders, that will improve the quality of decision making. Members might or might not agree with the simple proposition that I put forward. I will not go through the technicalities of my amendments, but they would achieve what I have described.
I move amendment 11.
I will speak first to my amendments in the group. I will then speak to Donald Gorrie's amendments.
Amendments 21 and 24 are technical amendments. Amendment 21 seeks to clarify, for the avoidance of doubt, that the Parliament will be informed of all orders that are made under part 1 of the bill. Amendment 24 also has a simple objective: it seeks to clarify that it is the latest version of a plan or book of reference that must be presented to the Parliament with an order on a development of national significance.
On amendment 22, I refer members to the Subordinate Legislation Committee's concern that powers in the bill could be used to amend provisions in a private transport act without being subject to any parliamentary procedure. The Subordinate Legislation Committee therefore sought a provision that would make a section 1 order to amend a private transport act subject to a parliamentary procedure. We agreed with that and have therefore taken appropriate action.
As a consequence of amendment 22, I have lodged amendment 25, which is necessary to ensure that when an order seeks to amend a previous order that was subject to an affirmative measure, the new order can be subject to that procedure, too.
Amendment 23 is a consequential drafting amendment.
I understand the sincerity of the arguments that have been made for Donald Gorrie's amendments. Like, I am sure, all other members, I endorse the general principle that Parliament must have an opportunity to call ministers to account for their decisions. We argue that we are delivering that through the bill and that Donald Gorrie promotes the wrong mechanism. I see little additional value in subjecting minor local projects to the negative procedure.
Donald Gorrie will appreciate that most public transport projects—even relatively small ones—are supported in one way or another by the Government, so ministers are accountable through a range of existing parliamentary mechanisms, including scrutiny by the committee. Such scrutiny has often happened in my time as Minister for Transport and in my predecessors' time. I am therefore genuinely unsure as to why we would wish to clutter Parliament with ever more orders under the negative procedure. That would not be an efficient use of Parliament's resources.
If Donald Gorrie is after more scrutiny of a proposal, he will note that we have proposed in the draft secondary legislation that promoters be placed under a statutory duty to consult and engage with MSPs in the locality of a proposed transport development. I assure the convener and the rest of the committee that no transport project promoter—and certainly not Transport Scotland as promoter of Government projects—would take that requirement lightly.
If, however, Donald Gorrie is after more information about decision making, I confirm that the process that we have designed will operate in accordance with full communication about and transparency over the decision-making process, including ministerial accountability to Parliament. I will not go over at length the arguments that we have rehearsed in this committee and in Mr Gorrie's Procedures Committee, but I ask him to reflect on the assurances that I have given, on the concrete measures that are in the bill and, for the reasons that I have outlined, to consider withdrawing amendment 11 and not moving his other amendments.
I want clarification of where Donald Gorrie is coming from. First, he said that the Procedures Committee considered the matter and decided not to act as a committee, but that it felt that it might be appropriate for an individual to do so. He then said that that was why he lodged the amendments as the Procedures Committee's convener. He cannot have it both ways: the amendments either do or do not come with the Procedures Committee's authority.
In arguing the case for the amendments, Donald Gorrie used terms such as "we, the Procedures Committee", "collectively" and "we looked at", but he also referred to "the simple proposition that I put forward" and used phrases such as "I move", "I consider" and "I believe". I do not know where he is coming from.
The Local Government and Transport Committee considered the same issues and debated the ministerial powers. No member of this committee felt it necessary to lodge amendments on the matter and the Procedures Committee did not feel that that was necessary. Donald Gorrie said that he took advice from professional counsel, which underpins his amendments, but in all the evidence that we received on the bill, no one felt it necessary to ask members of this committee to lodge amendments on the subject. I do not know where he is coming from and I hope that he will withdraw amendment 11 and not move his other amendments.
The minister's position is right. Detailed parliamentary scrutiny will—rightly—be of developments that are of national significance, which will be clearly set out in due course.
I do not think that it is necessary to use up parliamentary time on a discussion about minor projects, or even projects of regional significance, because those projects will have been extensively scrutinised locally, by MSPs and, more important, by the communities and local authorities in those areas.
The minister is also right to point out that, for most of the projects that will be considered under the procedure, the main promoter is likely to be an individual authority or a regional transport partnership, or a body established by a local authority or regional transport partnership. The only other likely significant exception is Network Rail, which is obviously significantly funded by the Executive and whose plans are discussed by Transport Scotland, so the minister is held to account in that way.
I feel that Donald Gorrie's amendments are not necessary, so I encourage him to withdraw or not move them. If no other members wish to comment, I shall invite the minister to respond to the issues that have been raised in the debate.
I have nothing to add, convener.
I therefore invite Donald Gorrie to respond to the debate and to indicate whether he wishes to press his amendments.
I am sorry that I failed to make clear the sequence of events. I shall try to explain them properly. The Procedures Committee was asked for its views on the subject. It took evidence from the minister and from others, and it set out its view, which was conveyed in a document to the Local Government and Transport Committee, which felt, as is its right, that it would not accept the Procedures Committee's arguments.
The Procedures Committee then agreed that we should keep to our argument and put it forward in the stage 1 debate on the bill. The committee's position was duly set out at that stage. After the Parliament agreed to the bill at stage 1, we discussed the matter again. The committee as a whole did not support lodging an amendment, but it did not see that as retreating from its point of view: its view was merely that, in the light of the rejection of its views in the previous debate, there was no point in lodging an amendment. The amendments in this group are therefore my amendments, but they set out the views of the Procedures Committee as stated in evidence to the Local Government and Transport Committee at stage 1 and in the stage 1 debate in Parliament.
The minister has paid some attention to the Procedures Committee's line of argument, but in my view he still does not go far enough. I think that there should be an opportunity for every proposal to be scrutinised by the Parliament. Even quite a minor proposal can be controversial locally, and can raise important issues of principle. The Parliament should have the opportunity to consider each proposal, so that it can pass quickly those proposals to which no controversy is attached but examine more carefully those proposals that are controversial.
I still think that I am trying to make an important point, which the Procedures Committee has made in the past. To test the water, I shall press amendment 11, but if it fails I will not move the others.
The question is, that amendment 11 be agreed to. Are we agreed?
No.
There will be a division.
For
Sheridan, Tommy (Glasgow) (Sol)
Against
Jackson, Dr Sylvia (Stirling) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
The result of the division is: For 1, Against 7, Abstentions 0.
Amendment 11 disagreed to.
Am I correct in assuming that Donald Gorrie does not intend to move any of the other amendments in his name?
You are. I thank the committee for its consideration.
Section 11 agreed to.
Section 12—Publicity for making or refusal of order
Amendment 12 moved—[Tavish Scott]—and agreed to.
Amendments 13 and 14 not moved.
Amendments 15 to 19 moved—[Tavish Scott]—and agreed to.
Amendment 20 not moved.
Amendment 21 moved—[Tavish Scott]—and agreed to.
Section 12, as amended, agreed to.
Section 13—"Developments of national significance" etc: special procedure
Amendments 22 to 25 moved—[Tavish Scott]—and agreed to.
Amendment 51 not moved.
Section 13, as amended, agreed to.
Section 14—Consents etc under other enactments
Amendment 27 moved—[Tavish Scott]—and agreed to.
Section 14, as amended, agreed to.
Sections 15 and 16 agreed to.
Section 17—Powers of certain bodies to apply for, or object to, order under section 1
Amendment 28 moved—[Tavish Scott]—and agreed to.
Section 17, as amended, agreed to.
Section 18 agreed to.
After section 18
Amendment 29, in the name of the minister, is grouped with amendments 43 and 44.
As the committee will be aware, one of the policy drivers behind the bill is to permit the Scottish ministers to act as a promoter of developments. Amendment 29 is required to enable ministers, when acting as the promoter of a development, to operate a voluntary purchase scheme. The drafting of the amendment is consistent with the Roads (Scotland) Act 1984 and will ensure that roads, inland waterways and any transport system authorised under section 1 of the bill will be treated in a similar manner.
Amendment 44 is a technical amendment. According to the bill as introduced, ministers would be able to provide only to a third party funds to purchase properties from the landowner for a voluntary purchase scheme. We have reflected on the matter and decided that the qualifying interest for receipt of a payment under a voluntary purchase scheme should be extended to cover certain tenants' interests.
The new drafting means that owner-occupiers, tenants, agricultural interests and small businesses now fall within the definition of a qualifying interest. Amendment 44 ensures consistency between the approach taken on roads where the Scottish ministers are operating the voluntary purchase scheme, the approach under proposed new section 18A, and the approach taken on other projects where third parties are reliant on funding from ministers to operate a voluntary purchase scheme.
Amendment 43 makes a necessary change to ensure consistency with new section 18A.
I move amendment 29.
Amendment 29 agreed to.
Sections 19 to 22 agreed to.
Section 23—Amendment of Roads (Scotland) Act 1984
Amendment 30, in the name of the minister, is grouped with amendments 31 to 33.
Amendment 30 is an involved, technical amendment that is worthy of a full explanation.
An anomaly has been identified in the drafting of new section 143A, which the bill inserts into the Roads (Scotland) Act 1984. The affirmative procedure is to be applied to an order under section 5 or a scheme under section 7 of the 1984 act that authorises the carrying out of work that would constitute a national development.
However, although section 5 orders are used when a trunk road is being constructed, the order itself does not authorise the works. Section 5 orders are used to direct that a road should become or cease to be a trunk road. The power to construct new trunk roads is contained in section 19 of the 1984 act. This issue does not arise in respect of special roads under section 7 of the 1984 act because that section provides powers for the construction of the scheme. However, it is orders and schemes for trunk roads and special roads that are likely to feature in the national planning framework and, therefore, it is those mechanisms that will be subject to the affirmative procedure.
Amendment 31 is a drafting amendment that consequentially adjusts the bill to reflect amendment 30. The inclusion of amendment 30 now means that two subsections now form a single subsection and therefore a further reference to "the instrument" is redundant.
Amendment 32 is a consequential amendment to ensure that a section 5 order can be captured within the definition of a national development.
Amendment 33 seeks to address three matters. The first matter, suggested by the Subordinate Legislation Committee, is to provide for roads—as we have provided for in section 13(6) for rail, guided transport or inland waterway projects—that a subsequent order that seeks to revoke or amend an earlier affirmative order is subject to the affirmative procedure if the Scottish ministers, for whatever reason, decide that the new order should be subject to the affirmative procedure. That provides consistency of approach for all modes.
The second matter that amendment 33 seeks to address is compliance with the public participation directive. The amendment ensures that, where a road project is a nationally significant development, such as the creation of a new trunk road, and the order is therefore subject to the affirmative procedure, the public will be informed that the order cannot come into force until and unless approval is given by the Scottish Parliament.
The third matter, which was, again, highlighted by the Subordinate Legislation Committee, is a consequential amendment in section 144 of the Roads (Scotland) Act 1984, to include a reference to section 143A, in order to ensure consistency with the current wording of section 144.
The amendments address the concerns of the Subordinate Legislation Committee, as well as clarifying and confirming that certain road orders will be subject to the affirmative procedure.
I move amendment 30.
Amendment 30 agreed to.
Amendments 31 to 33 moved—[Tavish Scott]—and agreed to.
Section 23, as amended, agreed to.
Section 24—Amendment of Harbours Act 1964
Amendment 34, in the name of the minister, is grouped with amendments 35 to 41.
Amendment 35 ensures that if a harbour order seeks to amend a previous order that was subject to the affirmative procedure, the new order too can be subject to the affirmative procedure. In the circumstances to which the amendment refers, a new order, even though it amends an earlier order, would still be subject to the affirmative procedure. The likelihood of those circumstances arising is remote, but it is best that we make the necessary provisions at this stage. The amendment also picks up a suggestion made by the Subordinate Legislation Committee that orders can be subject to the affirmative procedure if ministers so direct.
Amendment 34 is consequential to amendment 35.
Amendment 37 adds harbour authorities to the list of statutory objectors to proposals for harbour revision and empowerment orders.
Amendment 38, which is similar to amendment 37, adds harbour authorities to the list of statutory objectors to proposals for a harbour revision order, where the order is being made by the Scottish ministers of their own motion.
Amendment 41 ensures that the objections of a harbour authority to a harbour reorganisation scheme, as a statutory objector, cannot be dealt with by means of correspondence and that there must always be a statutory right to an inquiry or hearing.
Amendments 39 and 40 are consequential on amendment 41.
By making amendments 37 to 41, we ensure that a harbour authority whose interests are affected is now designated as a statutory objector for all transport-related orders, for example, an order under the bill, a roads order, a pilotage order or a harbour order.
Amendment 36 is a technical amendment that provides clarification in the Harbours Act 1964 of the definition of "act" and "enactments" in respect of Scottish Parliament legislation.
I move amendment 34.
Amendment 34 agreed to.
Amendments 35 to 41 moved—[Tavish Scott]—and agreed to.
Section 24, as amended, agreed to.
Section 25—Amendment of Pilotage Act 1987
Amendment 42, in the name of the minister, is in a group on its own.
This is a technical amendment to replicate standard provisions for obtaining evidence and documents in relation to, and expenses for, local inquiries and hearings under the Pilotage Act 1987. It is required because of the removal by the bill of special parliamentary procedure for transport projects and its replacement by a ministerial decision based on an inquiry or hearing. There is no existing provision for inquiries or hearings in the 1987 act. The amendment replicates the provision that is made for inquiries or hearings held under part 1 of the bill.
I move amendment 42.
Amendment 42 agreed to.
Section 25, as amended, agreed to.
Section 26—Amendment of Transport (Scotland) Act 2001
Amendments 43 and 44 moved—[Tavish Scott]—and agreed to.
Section 26, as amended, agreed to.
Section 27—Further provision as regards rules, regulations and orders
Amendment 45, in the name of the minister, is grouped with amendments 46, 47, 49 and 50.
Amendment 45 is a technical amendment, lodged on the advice of the parliamentary authorities. It extends to an order made under section 12(18) or an order made under section 29(3) the requirement to be subject to affirmative resolution, if the order seeks to modify primary legislation.
Amendment 46 has been lodged in response to a technical oversight that we noticed. We have provided the committee with draft indicative secondary legislation that in its current form is likely to involve elements of sub-delegation. The amendment makes express provision for the bill to enable sub-delegation of functions, as we believe that that is appropriate in respect of secondary legislation. By placing the provisions in the bill, we ensure that our intentions are properly conveyed and that we leave no doubt on the matter.
Amendment 47 addresses a different issue. The Subordinate Legislation Committee expressed concern that the powers under section 27(6), read with section 27(8), would allow the modification of the act—not just other enactments—following on from the bill. By removing subsection (8), the amendment ensures that any subordinate legislation that is made under the act cannot be used to modify the act. I am grateful to the Subordinate Legislation Committee for pointing out the problem.
Amendment 49 seeks to address concerns that the Subordinate Legislation Committee raised in paragraphs 51 and 52 of its stage 1 report.
As members are aware, section 26 gives the Scottish ministers powers to fund a voluntary purchase scheme operated by a third party. Amendment 50 enables section 26 to be commenced automatically two months after the bill has received royal assent. The reason for making special provision is to ensure that the voluntary provisions are commenced within that timeframe, because the provisions are required to operate quickly a voluntary purchase scheme for the Waverley Railway (Scotland) Act 2006. Transport Scotland and Scottish Borders Council, the promoter of the Waverley Railway (Scotland) Bill, are concerned that arrangements for such a scheme need to be put in place as quickly as possible. Given the risk of delays due to the Scottish Parliament elections, I have sought to give them that assurance through amendment 50.
I move amendment 45.
The number of amendments that the minister has lodged that have been inspired by the Subordinate Legislation Committee is testament to the diligence of Sylvia Jackson and her colleagues. Well done.
Amendment 45 agreed to.
Amendments 46 and 47 moved—[Tavish Scott]—and agreed to.
Section 27, as amended, agreed to.
Section 28 agreed to.
Schedule 2
Modification of enactments
Amendment 48, in the name of the minister, is in a group on its own.
I will be brief on the amendment. Having reflected on matters, we believe that it is not appropriate to fetter the discretion of procurators fiscal by restricting the options that are available to them. By deleting paragraph 5 from schedule 2 to the bill, amendment 48 ensures that procurators fiscal will continue to operate in an unrestricted manner. Therefore, we are reverting to the status quo.
I move amendment 48.
Amendment 48 agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
Section 29—Short title and commencement
Amendments 49 and 50 moved—[Tavish Scott]—and agreed to.
Section 29, as amended, agreed to.
Long title agreed to.
That ends stage 2 consideration of the Transport and Works (Scotland) Bill. I thank the minister and his team for their contribution to this afternoon's proceedings. I also thank all the members of the committee for their contribution to the debate and, indeed, I thank Mr Gorrie for his amendments and contribution. We look forward to debating the bill at stage 3. Given remarks that were made at stage 1 and the support for the amendments that have been made to the bill so far, it seems likely that the bill will receive widespread support in the Parliament when it is considered at stage 3.
Because the stage 2 proceedings have gone a bit quicker than we had planned, the Minister for Finance and Public Service Reform is not yet available for us to take agenda item 3. He will not be available until half past 3 at the earliest. I propose that we suspend the committee meeting and resume then. Is that agreed?
Members indicated agreement.
Meeting suspended.
On resuming—