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Edinburgh Tram (Line One) Bill: Preliminary Stage<br />Edinburgh Tram (Line Two) Bill: Preliminary Stage
Members have been furnished with the appropriate bills and our legal adviser's comments on them. You will remember that we previously discussed whether we should examine the delegated powers within private bills. The Edinburgh Tram (Line One) Bill has seven such powers and members have been given a memorandum that will assist them.
Before we go on to talk about that, I point out that the delegated powers in the Edinburgh Tram (Line One) Bill are exactly the same as those in the Edinburgh Tram (Line Two) Bill, so I put it on the record that anything that we say about the Edinburgh Tram (Line One) Bill will be said of the second bill, which will save us going through the same thing a second time, if that is possible.
That is correct, and it is a very good way to proceed. We are considering both bills at the same time.
I understand why the promoters would want the ability to extend the five-year period. That seems entirely reasonable, because objectors might try to use the legal system to delay the project beyond any finite date, if there is such a thing as a finite date. At the same time, I sympathise with those who might have property in the area that might then be blighted for many years to come if there was an infinite ability to extend the time limit. Although I am happy with a period of five years and I am not unhappy with an extension to that if it is necessary, it does not seem reasonable that the promoters of the bill will be able to go back to ask for an extension of the time limit for ever more. We must ask the promoters about that.
With some hesitation, I find myself thinking that whether the proposed order should be subject to the negative procedure is our business, but the other point is not. I have a feeling that the point about whether the promoters should have extensions and how long they should be is a policy issue, as opposed to being part of the methodology and whether the order should be subject to the negative or affirmative procedure. We might have strayed into discussing the substance of the bill in a way that is not our concern.
That is a reasonable point to make. I certainly did not intend to stray into policy because you are quite right, we should not do that. The point that I was trying to make was about whether we are comfortable with such an unlimited power in subordinate legislation.
Okay.
I take Gordon Jackson's point but, for the reasons that Stewart Maxwell has set out, we have to limit the powers. I think that Stewart's suggestion is a good one, but I accept the point about policy.
I accept that and only flagged up my concern because when we move from talking about subordinate legislation into talking about policy that is always a grey area. I suppose that the committee could say that it seems rather a lot to do by statutory instrument. I take Stewart Maxwell's point entirely. There are two ways of looking at the issue and I am happy with the way in which he is looking at it.
Stewart Maxwell's point is a good one in terms of the balance of the delegated power. It is a fair question to be asking.
Before we leave this point, I mention that because the bill is a private bill, the questions will go to the promoter. The clerk has assured me that the private bill committee will also get this information.
This is Government at the highest level. I can see the cabinet sitting up at night thinking, "Will we get the penalty fares now or not?"
Are there any points to raise or is it fairly straightforward?
It is straightforward.
It is okay.
Section 44(3) is about the amount of penalty fare. We have a few points to discuss about the section. At the moment, section 44 of the bill sets the level of penalty fare at £40 or 10 times the amount of the full single fare, whichever is the greater amount.
Again, although I take Gordon's point about the previous area we were considering, we are talking about the limits on a power. As it stands, the power to raise the penalty is unlimited and there is no maximum in place; maximum limits for fines are usually set. The bill seems to be a bit confused about the ability to raise the fines. Can the promoters raise the £40 to whatever they like? Can they increase the penalty from 10 times the amount of the full single fare to 20 times or 30 times the full fare? There is a lack of clarity about what will happen.
My point is the same as before; I think that we are treading in that grey area but I have no problem with asking the question.
In all fairness to what Stewart Maxwell is saying, section 44(3) says:
I agree. It has to be clear that the penalty fare should be 10 times the full single fare. There is no maximum at the moment, but if it is specified that the maximum can only be 10 times the full fare and not 15 times, 20 times or 30 times, there will be a maximum, which, as the fare goes up over the years, will be whatever 10 times the fare is. That seems to be entirely clear, but at the moment the bill is not clear and it needs to be made so.
I take it that if the provision were clearer, we would not be so worried about the instrument being a negative one. Clarity is the big issue.
Given that this is a Henry VIII power, we usually take the view that the affirmative and not the negative procedure should be used. However, if the power is clarified and we are happy with the explanation it becomes an administrative matter and I would be happy for the negative procedure to be used in this instance.
I have a question for the clerk. We ask these questions of the promoter. Do we get replies in the same way as we do from the Executive?
Yes, we will receive answers within exactly the same timescale as we would for questions to the Executive.
Right. I thought that I should know what the procedure is. I welcome Murray Tosh who has joined us earlier than he thought would be the case.
I thought that you would have finished by now.
No. We are having a really exciting time with the Edinburgh Tram (Line One) Bill.
Section 61 deals with insulation against noise. It is linked to section 62: section 61 outlines the scheme and section 62 sets out the process for getting an order for insulating new buildings. Are members agreed that no points arise on the section?
Section 63 concerns the repeal of sections 61 and 62. Obviously, if a national scheme for insulating buildings were to be brought into force, sections 61 and 62 would need to be repealed. Are we agreed that this is a sensible provision?
However, paragraphs 29 and 30 of our legal briefing draw our attention to two points. The first raises the issue that, given that the power is a Henry VIII power, the affirmative procedure should have been used. The counter argument could be put that the power is consequential on the need to repeal sections 61 and 62 if a national scheme were to come into force. Are members happy with my explanation of the point that has been drawn to our attention?
I am happy with your explanation, convener. I agree that, as the section 63 power is consequential, I am not concerned about the use of the negative procedure in this case. The provision makes it clear that public inquiries would have to be held. Enough safeguards are built into the section and I think that we can therefore leave it alone.
The second point that has been drawn to our attention relates to section 63(2). There is a discrepancy in the wording between this section and section 79(2)—in particular there is a reference to "savings" in section 63(2) that was missed out of section 79(2). It would be better if the provisions of both sections were brought together, perhaps in section 79(2). If that were to be done, section 63(2) would not be needed. Are members agreed that we should ask the question of the promoter?
Finally, because of Mike Pringle's kind suggestion that we deal with lines one and two together, as the delegated powers to do with both bills are the same, I assume that members are agreed on the recommended actions for the Edinburgh Tram (Line Two) Bill?
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Executive Responses