I welcome Margaret Curran and Tavish Scott, whom we all know well, to the meeting. I also welcome Murray Sinclair, head of the constitution and parliamentary secretariat; Frazer Henderson, transport and works bill team leader; and Patrick Layden, deputy solicitor in the office of the solicitor to the Scottish Executive. I hope that I read that correctly.
That was fantastic. Could two of the gentlemen turn their name-plates round?
That is a very intelligent suggestion. Thank you.
That is why I am your deputy.
As I understand it, Margaret Curran will kick off—if that is the right analogy—and Tavish Scott will run with the ball thereafter.
We are both delighted to be here, convener. I suppose that it is appropriate to congratulate you on your new role as convener of the Procedures Committee. I think that this is our first formal engagement with you; we look forward to working with you in future.
I am grateful to Margaret Curran, the Parliamentary Bureau and the committee for their consideration of and assistance on the matter, which has caused us some issues in relation to the way in which we take forward our exciting and challenging agenda on capital transport projects.
Karen Gillon has the first question.
If the process that has been described is so fantastic, why was it not proposed during our inquiry some months ago?
You raise a fair point, which I have reflected on myself. In all honesty, my initial—and proper—reaction at the time was to say that the real answer lay in legislation and my feeling that we needed to go ahead with the bill. That is what I was focused on and wanted to happen. However, with the subsequent pressure, particularly from MSPs, over timescales, I felt that we were reaching an unsustainable position and asked officials to look again at what we could drag out of the situation. Up to that point, I did not think that we were in such a position. That is the honest reality.
Thank you for your honesty, minister. I trust that it will not happen again.
What—the honesty?
I am not talking about the honesty.
I ask Murray Sinclair, who is one of my very informed legal advisers, to address some aspects of that question.
On the primary question whether powers would be conferred through standing orders, we take the view that, legally, that could happen. However, we do not think that that will be the primary model. Instead, we believe that the role and remit of an assessor appointed by a committee should be clearly set out in the directions that he is given on his appointment. That would be similar to the contractual relationship that you described. We think that, as long as the remit is clear, fairly and reasonably operated and, indeed, stuck to, there will be no difference in principle between the role of an assessor and that of an inquiry reporter in many planning and other contexts. One need think only of the work that housing officers carry out for local authorities and the ample judicial authority of that position.
I take Karen Gillon's point about the legitimacy of parliamentarians' rights and responsibilities and the lines of decision making and accountability. However, as I understand it, any decision still rests with the committee. Moreover, the assessor will simply provide information for the committee. We are not seeking to alter the existing framework fundamentally.
That is a key point. The reporter would be answerable to the committee under the remit that it set for him and the committee would still take any decisions.
In other cases, people in the same position have statutory powers that the assessor would not have. Pursuing Karen Gillon's line, I wonder whether we could insert a standing order to the effect that the committee would refuse to hear people who had bloody-mindedly refused to attend the assessor's hearings. In my natural role of being bloody minded, I have already aired the possibility that some bloody-minded objector might say, "No, I'm not going to speak to this assessor; I want to speak to the committee." We do not want that to happen; instead, we want everyone to get a fair deal from the assessor. Could standing orders be changed to give as much power as possible to the assessor, given that he or she will not have statutory powers?
There is no reason why that should not happen. Our view is that standing orders could be used to regulate what the assessor does, which would cover the assessor's rights in relation to certain objectors or certain types of objections. We would hope that, in practice, there would be no need to resort to rules such as you describe, just as there is no need in many similar inquiry processes. We would hope that a clear remit and a clear and fairly operated process would suffice. Is that a fair comment, Patrick?
I think so. What is important is that people with valid objections are given a fair opportunity to present those objections. We envisage that standing orders could provide for the assessor to give those people that opportunity; if they then chose not to take it, we would see no difficulty in the committee refusing them an additional bite at the cherry that other objectors would not have had.
Much emphasis has been placed on the fact that the Executive's proposal might relieve MSPs of some of their burden. However, is it fair to say that the key aims of the proposal are not simply to expedite the process but to improve the level of scrutiny? As was suggested by some witnesses during our inquiry, the appointment of a reporter would mean the introduction of a level of expertise into the scrutiny of what can be very complicated issues. In the vast majority of cases, it is inevitable that MSPs will not have such expertise. It would be possible to introduce that expertise while maintaining parliamentary authority through the committee; the final decisions would still be taken by the Parliament.
That is a fair assessment of what the process should be like if it is operating correctly. When dealing with private bills on major transport projects, MSPs on all sides encounter very detailed issues—not the least of which are the financial issues. If we wish to improve our processes, it will be eminently sensible if the assessment of evidence can take place in the way that we propose. That would lead to an improvement in the provision of advice—and advice is what it would be—to a private bill committee. The committee would then decide how it wished to proceed. There is a lot in Mr Baker's analysis of why we have made the proposal that we have made.
I will pursue the same line—constructively, as we all do—of wondering how we can make the system as good as possible. Many written submissions that we have received from lawyers who are knowledgeable in this area say that the efforts to bring people together to discuss possible solutions do not happen early enough. That raises two points. First, is there any way in which you as the Executive or we as the Parliament can put pressure on promoters to adopt such an approach? It has been alleged that some promoters are very bad in that respect. Secondly, once an issue comes within our ambit, when the bill is published, could we change the system to ensure that the committee is established quickly so that it can appoint the assessor who will then be able to deal with things at the preliminary stage as well as at the consideration stage? As I understand them, the Executive's suggestions have related only to the consideration stage. It might be possible to do things better if we got involved earlier.
We might not need that second aspect—that is, a role for the assessor at the preliminary stage—if we can get the first aspect right. It is in the promoter's interest to sort out as many issues in advance as it can. We have all learned from the process that we have been using—including the promoters and especially the agents and other formal bodies or representatives whom promoters employ to give advice. Those bodies may be law firms or—dare I say it?—public relations agencies.
That is not a point that we have considered in any detail. We were concentrating on the part of the process where the obvious pressures lay. However, if there are pressures at the earlier stage as well, I can see the attractions of the suggestion for the assistance of an assessor, which a committee may find to be of value. That would give the assessor a different sort of role from the one that we envisage. It would have more to do, perhaps, with managing the process. That is why the minister has indicated that, if there is pressure on the promoters to manage the process better, and if they have more experience, there may not be the same pressure at that stage in the process. Nevertheless, we can see that the suggestion could be an advantage.
It is worth looking at whether we or the promoters should try to reduce the number of conflicts, rather than having a better system for dealing with conflicts at consideration stage. If we can prevent conflicts from happening, rather than having to deal with them, that would be a step forward.
We are talking about three forthcoming bills, after which—subject to parliamentary scrutiny and approval—we shall be into the transport and works bill mechanism. I hope that that will allow us to handle such processes in a more constructive manner, not least because the Executive will have overall responsibility for them and will therefore be held to account by the Parliament on future projects. It is important to recognise that we are talking only about three bills. However, that is not to say that issues of difference will not arise in relation to those three measures.
What I want to say follows on from your point, minister. We have encountered problems with people not being involved in the process at an early enough stage and not having the opportunity to be involved in the sort of consultation that we would want, in line with good parliamentary practice. We do not want to encounter those problems, which have not helped the process, when we deal with the forthcoming bills. I hope that we will be able to build in a good level of pre-legislative scrutiny and consultation.
That is a fair point and I hear you loud and clear.
If committees were to get outside assistance, it would be assistance of a different nature from the sort of evidence-gathering role that we are proposing. What Karen Gillon is thinking about is more a process-management role, to which this committee would have to give quite a lot of further thought.
From the written evidence that we have gathered so far from parties that would have an interest, there seems to be general support for a move along the lines that we are discussing. Some of that evidence refers to the issue of who appoints the reporter or assessor. The Executive has certainly provided information on what its inquiry reporters unit can do and on the work that it has been involved with in the past and is involved with currently. However, some evidence has suggested that the inquiry reporters unit could not cope with any additional work. Somebody who seemed to know about the inside running of the unit even suggested that people are about to retire and that the unit would therefore be losing expertise. I would appreciate the Executive's comments on whether it believes that the inquiry reporters unit could cope and whether it sees the unit as being independent enough to meet the needs of an open and transparent process and to satisfy the bloody-minded witness whom Donald Gorrie keeps talking about.
I shall kick off on that, but my colleagues may also want to comment. We have lots of experience of bloody-minded people.
The minister is exactly right: the courts have established that, largely because of the fairness of the procedures that the inquiry reporters unit operates and the fair way in which it operates the procedures, the unit is generally speaking sufficiently independent and impartial to put the legitimacy of its decisions beyond challenge. The unit is fair and impartial and, as such, its procedures are apt for processes such as the one that we propose should operate for private bills. I ask Patrick Layden whether that is fair.
It is. The reporter will not be a judge—he will not try to work out whether the policy is good, as the Parliament will have decided that by agreeing to the bill at the preliminary stage. The reporter will investigate the factual issues and the objections to the proposal. As I said, it is important that people who have legitimate objections get a proper chance to make them and have them considered. The reporter will not decide whether a railway line or airport is a good policy, because the Parliament will have decided on that and will do so again later; he will simply take account of all the valid comments that are made by those who are for and against it. In that context, the courts have held that the use of the inquiry reporters unit is an impartial method by which to carry out that process.
It is worth stressing that the context in which the courts have reached that view is one in which the relevant policy is that of the Scottish ministers. As the inquiry reporters are employed by the Scottish ministers, that relationship is in principle much closer than the one that we envisage.
If technical issues arise—for example, whether a new railway going under an airport runway would cause aeroplanes to fall into the tunnel—we need to have somebody who understands them. Would the private bill committee hire an expert on tunnel collapse or would the assessor call witnesses who knew about collapsing tunnels?
Again, that would be part of the remit that the committee would set down. It would be open to the committee to make the judgment. If it decided that an assessment of large holes into which aeroplanes might fall would be appropriate, it might wish to put that in the remit.
So the committee could decide.
Very much so.
We have heard claims that the inquiry reporters unit is under substantial pressure and may come under greater pressure. The minister mentioned the possibility of law firms providing assessors or expertise. What analysis have you done of the costs that will fall to the SPCB, given that it will be improper under human rights legislation for the Executive to pay its own assessors to assess an Executive programme?
Again, I will kick off and then ask my colleagues to come in—to support me, I hope. I will make two points to clarify what I said earlier. First, as someone who used to be the minister with responsibility for planning, I was in regular touch with the reporters unit, so I appreciate that it has a heavy workload and is under pressure. However, the evidence that we have is that it is not under pressure to the extent that it could not play a role in the process. If there is evidence to the contrary—that the unit can play no role—I am not aware of it. Any reporter could reasonably be part of the process.
The costs would primarily fall to the Parliament, but the Parliament ought to have powers in relation to the fees that it can charge to recoup some of the cost from the promoter.
Are you saying that no cost will fall to the Scottish Parliamentary Corporate Body because any cost would be automatically recouped from the promoter?
It is for the SPCB to determine, in line with the procedures that are now being developed, how it will determine and recoup those costs. I do not think that the SPCB would be too pleased with the Executive if we were to direct it over how it should do so. We have had reasonable and constructive discussions to ensure that we get a reasonable solution at the end of the day.
It just seems that you are proposing measures that might involve costs to the SPCB. We have to be clear about whether that is the case.
Inevitably, costs will be associated with the process, just as costs are associated with the existing process. The view that is shared across the Parliament and the Executive is that, ultimately, private bill promoters should pay for the process. How that is determined is a matter for the Parliament rather than the Executive.
We are not proposing anything new in that sense. The standing orders allow committees to appoint assessors. As was said, they could be reporters or, as has happened, they could be engineers. The procedures allow for, first, payment by the SPCB and, secondly, the possibility of fees being charged, which, I imagine, could be used to recoup some of the costs that are involved in the appointment of any assessor. It is for the Parliament to decide how it uses the existing model.
I will give a particular example in response to Mr Ballance's point. The cost overrun in the case of the Stirling-Alloa-Kincardine railway was caused, to some extent, by the costs of the parliamentary process. The reality is that there will be a cost associated with private bills that go through Parliament. I completely agree with Margaret Curran's contention that the objective would be to recoup those costs from the promoter. However, it is not for us to tell the SPCB how to do its job. We will help it in that process, but it is up to the SPCB to sort out the procedures and negotiations in relation to any particular project.
I would like to ask about legal challenges. As has been indicated by other members, the committee and the Parliament as a whole are sympathetic to what you are trying to achieve. However, if anything goes wrong technically or legally, we—not the Executive—will have the problem. Have your people checked carefully that we would not be open to the challenge that the system was unfair under the European convention on human rights or any other legal procedure? It would be unfortunate if the Parliament was presented with lots of legal challenges. That would bring the process to a shuddering halt and frustrate your desire to move speedily. May we have an assurance on the record that your lawyers have considered the situation to ensure that we are setting forth in a waterproof boat?
Are we not using football analogies?
We have come with our lawyers, as you can see.
I should say that, although boats are waterproof, we cannot guarantee that they will not be rained on. Nobody could ever say that there will be no risk of a legal challenge. Two acts of the Parliament have been challenged in the courts as being incompatible with human rights provisions. On both occasions, the challenges were rejected by the courts. It is the nature of a Parliament such as the Scottish Parliament, which is subject to a wider constitution, that its acts are liable to challenge. I could not guarantee that there would never be a challenge.
We will now move on to the subject of timescale. We would probably wish to hear from the SPCB on this, as it would have to provide the resources and defend any legal case. We might also wish to hear from the inquiry reporters unit to find out whether it feels that it could manage and to elicit its guidance on the rules that we should write into the system. We might possibly hear from one or two other people. That evidence would occupy another meeting.
It would certainly be helpful to the Executive if the procedures could go through the Parliament in early January, as long as enough time is given—taking into account the Christmas holidays, dare I say it—for anything formal that must be drafted to be drafted. I hope that you will consider that point, taking advice from your clerks and in discussion with our officials. That would be the important aspect from our perspective.
If I understand this correctly, our advice seems to be that proceedings could take place to set up the three forthcoming works bills without our having got through Parliament the new arrangements for standing orders and so on. That raises the question whether it would be unfair to people if we changed the rules after the process had started. I think the view was that, if we did it properly, that would be okay. Is that correct?
I do not think that we would demur from the proposition that there would be no fundamental legal problem were the change in procedures to take place after the introduction of a bill. However, it would be highly preferable for the changes to be in place before the introduction of any bill. We should liaise with your officials about this. It ought to be possible to have the necessary standing orders in place in good time in January, before the bills in question are introduced. I hope that we can work towards that collectively.
My concern is about any future suggestion—fair or otherwise—that we had changed the rules halfway through. As we have discussed, there are always one or two awkward individuals, as I think we have referred to them. People will make representations and use the fact that, fairly or unfairly, arrangements have been changed. I agree with Murray Sinclair. Given the timescale, it would be hugely useful to have the matter concluded in January if possible.
We will certainly do our best. Taking your line, I acknowledge that it might help awkward people with their case if we appear to rush through the new system without giving it proper thought. We need to strike a balance.
I understand that.
I agree that we have to take the evidence that is necessary to allow us to reach our conclusion. As members of the Parliament, we are aware of the pressure on our colleagues who have to serve on private bills committees, as well as the pressure on their substitutes—one such weary substitute is sitting here. We also have to be aware that if we had to use existing procedures even just to start one of the forthcoming works bills, people would find themselves at breaking point. I am sure that committee members around the table will take that into account and that we will address ourselves to the issue.
I sympathise with that view. Three major transport bills are coming and, as Tavish Scott suggested, delaying them would lead to extra cost. That is a serious consideration and I am sure that, when we discuss the matter, the committee will want to go the extra mile to ensure that the appropriate recommendations are made in time. I am also sure that flexibility in meeting the timescale is not beyond the committee.
Being new to the business of convening a committee, I failed to pass on Bruce McFee's apologies for his absence. If that could be put in the Official Report, that would make my nose clean again.
Will I show you? [Laughter.]
Well, thank you for your attendance. The good will of the committee is certainly with you, and we will do what we can, operating prudently, to make progress.
Thank you.
The clerk has pointed out to me that I may have jumped the gun. I am not sure whether the committee decided to have another evidence session, although I thought that we did.
No, we have not decided that.
I apologise. It was my recollection that we had discussed the matter. Could we discuss that now? The SPCB is relevant, as it will have to pay for the process and defend any legal cases, and I presume that the inquiry reporters unit would have some interesting advice on how the standing orders might set up the reporter's role. It might be useful to take evidence from the SPCB and the inquiry reporters unit.
I endorse that. The overwhelming majority of the evidence that we have heard so far has been in favour of the proposal. There seems to be a huge amount of consensus around it. It would be useful to invite the SPCB and the inquiry reporters unit to give evidence, especially on some elements of the process that have been mentioned. It would also be useful to speak to the inquiry reporters unit to clarify the reporter's role. Beyond that, I do not think that we need to cast the net much further, as the inquiry seems to have quite a narrow focus. However, I see the logic in inviting those people to give evidence.
We could ask the corporate body, if an assessor were to be appointed by contract, what experience it has of putting the relevant procedures into such a contract. Those procedures might fill any gaps in what can be put into the standing orders.
I found some of the short written submissions from outside lawyers quite helpful. If we could take evidence from one or two lawyers on the same day, would there be any merit in talking to them about the business of getting involved as early as possible in the procedure?
I cannot remember which, but one of the law firms brought up the point about dealing with the issues as early as possible. Having been a member of the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill Committee, I know that the clerks already try to work on such issues as early as possible. Therefore, some of those concerns are dealt with by the current process. I am bit confused about what the reporter's role would be at that stage. It is a very pertinent point, but it is fair to flag up that work is already done. However, I have no strong opinions on who might be invited to give evidence.
The evidence flagged up a failure in the local planning process. Perhaps I am reading the evidence wrongly, but there seem to be problems at the consultation stage and in drawing up where a railway line will go. I do not know that we can solve those problems other than through the proposed planning bill. The evidence that we have taken might usefully be passed on to our colleagues on the Communities Committee, which will be responsible for scrutinising the proposed planning bill, to see whether something could be brought into that to cover future private bills. The bills that will be introduced in Parliament after Christmas are far too far down the line for their drafting to be influenced now—they will come into the parliamentary process.
Are we confident that we can fit in with the timescale that the minister described? Having heard what he said, it is very important that we deliver usable proposals within the timescales that were mentioned. If we are planning to take evidence from other individuals, it is important that we do that within a comfortable timescale.
Can we finish off taking evidence at the next meeting, which will be in a fortnight? I presume that the SPCB and the Scottish Executive inquiry reporters unit would be able to roll up.
We can certainly contact the SPCB and the inquiry reporters unit and urge them to appear at the earliest opportunity. As you said earlier, other witnesses would have to come within the same timeframe.
It was useful to have the evidence in front of us today. If people have comments to make or evidence to give it would be useful if it could be submitted to the committee in advance. If any updated legal advice comes out after today's meeting but before the next meeting, it would be useful to have that as well.
Does the committee want to seek evidence from Shepherd and Wedderburn, McGrigors and the Society of Parliamentary Agents, among others? It would be useful to have one person from outside. The clerks could approach those organisations; it is just a question of finding one that has the right spokesman available on the right day. If we have an outside view as well as an in-house view, that would show that we have taken the issue seriously.
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