I am pleased to say that, as the minister has managed to fight her way through the traffic, we can revert to item 1, which is the first oral evidence-taking session in relation to our work on private bills. I welcome Margaret Curran, the new Minister for Parliamentary Business, to her first meeting of the Procedures Committee—I am sure that her appearance today will not be her last. Accompanying the minister are Colin Miller, head of the Executive's constitution unit, and Damian Sharp, of the Executive's public transport major infrastructure team. Our normal format allows the minister a few minutes to make an opening presentation before taking questions from members.
It is unfortunate that my first appearance before the committee has to start with an apology. I have a transport colleague with me; perhaps he can sort out my transport problems so that I am not late again in future. I am pleased to make my first appearance before the Procedures Committee. Indeed, this is my first appearance before a committee in our wonderful new building.
Thank you, minister, for those remarks. I open the meeting to questions.
In your third option, minister, you discuss the possibility of dealing with major transport infrastructure projects differently from other private bill issues. One thing that surprised the committee when we started investigating the area was that major transport infrastructure projects for roads do not have to go through the private bill procedure, unlike rail, canal and other transport infrastructure projects. I am interested in getting a bit more of your thinking on whether there is scope for differentiating transport infrastructure private bill issues from other private bill issues and on the relevance of separating rail transport infrastructure proposals from those for road transport infrastructure.
That is an interesting point. I am trying to come to terms with the issues, but it seems to me that there are several historic reasons for the existing situation. Perhaps this is the time to consider whether to continue with those historic arrangements. Colin Miller will give you a detailed explanation of why we are where we are. In our discussions from this point on, we can consider where we should take the matter.
One answer to the question is that there will always be a need for a private bills procedure, along the lines of the long-established one at Westminster and of the Scottish Parliament procedure, to deal with certain types of private bills. As you will know, two of the three private bills that the Parliament has passed were not transport bills. Those two bills were the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill and the National Galleries of Scotland Bill. There will always be a category of private bill that has nothing to do with transport. There may be a case for streamlining existing private bill procedures, but I do not think that the Executive would contemplate departing from them altogether.
The reasons are partly historic and partly to do with different responsibilities. The Scottish Executive promotes major roads orders in part because it is the trunk roads authority—the Scottish ministers are directly responsible for the trunk roads network. Even after the outcome of the rail review, the Scottish ministers will not be the trunk rail authority in the same way as they are the trunk roads authority. However, there is still a question about whether there should be different private bill procedures because ministers' roles in relation to trunk roads and the rail networks are different. We would have to explore that issue. Should we have different procedures? Alternatively, should the procedures be similar or even the same? We would wish to explore that in more detail with the Parliament.
I understand the point about the different roles of the Scottish ministers, but beyond that I do not see a major difference between the types of powers that are required for a rail proposal and those that are required for a road proposal.
Many of the powers for a heavy rail proposal and a road proposal are similar—for example, the compulsory purchase of land, the power to construct and the power to enter land to survey and to do ancillary works such as drainage. Those are common to all major civil engineering projects. There are also private bills to do with tramways. Those include provisions around operations, fares and so on, which are distinct from and additional to the powers required for operating a road. Some aspects are different, but many are common.
I am just at my second meeting of this committee, so I am a fellow rookie. I want to explore something a wee bit further. I am thinking about the option of going down the route of the Transport and Works Act 1992 and I am not thinking too favourably about it, to be honest. If we followed that route, would you anticipate that procedures would be speeded up? I am mindful of the length of time that is required for the procedure, particularly if it involves a public inquiry—it can take up to four years. Is there any benefit to following that route as far as timing is concerned?
Again, that is an area that we need to think about. When we considered the possibility of using the model of the 1992 act, we were mindful of the fact that the procedure has not necessarily speeded up the process at Westminster. Given that we are trying to streamline the process and to make it more efficient and effective, that is obviously something that we need to bear in mind.
As the minister says, we would certainly not regard the 1992 act as a panacea or as a blueprint that we would suggest the Scottish Parliament simply adopt. It is certainly a model that is worth examining, however, and it is worth exploring whether we could develop something along similar lines in Scotland, but something that achieved the twin objectives of streamlining the process and of continuing to provide proper rights for objectors.
I think that Bruce McFee is right. When we heard about the 1992 act at our away day, people were initially attracted to it, as that approach would be less cumbersome and difficult than the current system here. Obviously, we would not want simply to put a tartan ribbon on it.
We obviously do not want the working group to take too long to report, given that the objective is to try to reduce the time taken. The matter is dependent on the committee's approach, but I am told that the work could be done efficiently and quickly because we already have information to work with. If possible, we want to achieve a consensus on how to progress. I see the group's scope as being fairly wide. I hope that there will be a partnership approach to resolving some of the issues. We have not as yet laid out terms for the process, but we see the work as evolving from discussions with the committee.
I have reservations about going down the route of the 1992 act, simply because we would, in essence, end up with two different systems—one for transport projects and one for non-transport projects. As your colleague correctly said, three private bills have been passed so far, one of which was for a transport project. My feeling is that the process should be streamlined because we should not delay unnecessarily major infrastructure projects if we can avoid doing so, although we must protect people who have relevant interests.
That is a possible model and we are interested in considering it to see whether it would provide solutions. We do not rule that out at this stage. We are genuinely interested in your assessment of the 1992 act. From the limited understanding that I have of the matter, the reporter option is a possible one and we are sympathetic to it, although it would be interesting to ask the officials to consider the details and complexities, which we might not grasp at this stage. With the committee's permission, we would want the working group to consider that option.
The member draws an important distinction between technical matters, on which MSPs or civil servants do not necessarily have core skills—
Does anybody?
On such matters, we need a lot of help from technical experts to reach decisions. However, private bills also involve matters of policy and questions about the effect on people and how Scotland should or should not change, which are very much matters for MSPs. To improve the existing process, we need to use MSPs' time on matters on which MSPs can add value. From my experience of the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill process, the committee that considered the bill at times had to take advice at face value because it had no means of knowing whether technical details were true. If such technical matters were dealt with more efficiently and the MSPs' role was to ensure that the process was right, proper, fair and thorough, rather than to go through the details, that could help everyone concerned, including the objectors.
The solution might lie in some sort of amalgamation of the processes from the Transport and Works Act 1992 and the Private Legislation Procedure (Scotland) Act 1936, which used to apply to such bills in Scotland. There could be a parliamentary process to consider the general principles and whether the project should get the go-ahead—because there is public involvement in the financing of the schemes involved—and a process for final confirmation, but the detail of the bit in the middle could be dealt with through the public inquiry-type approach.
Yes. We need to examine the detail to ensure that it works, accords with parliamentary procedures and will get the job done.
Having read a lot of the evidence and having heard the various speakers, I know that one of the biggest criticisms is that the procedure is, in many ways, a rubber-stamping exercise. There is little room to amend bills. I do not know what value the process has. One criticism is that people have said, "If you want to amend it, that's fine, but that means we can't go ahead with it." We need a system that has value for objectors and that enables the Parliament—if it is to have a role—to influence the process, rather than just to rubber-stamp a proposal and to tinker at the edges, which is where we are at the moment.
Absolutely. The work that we are doing just now should help us to address some of the serious concerns that members have expressed to the Executive and through parliamentary platforms about their frustration at the current level of involvement and at the whole process. We recognise that, which is why we are keen to work with you to see whether we can develop different models and move on. As Bruce McFee said, there are projects that we need to get under way. There is work to be done. We need to sort out some of the issues. We accept your points.
Could you explain how you envisage a hybrid bill procedure operating and how it would differ from the present process, because, of the various solutions, that is probably the only one that could be introduced without primary legislation?
That model offers a number of attractions, which I am sure you can see. May I refer you to Colin Miller, who is more on top of the detail?
Essentially, when we refer to a hybrid bill, we mean a public bill—in other words, a bill that is brought forward by the Executive—but one that is hybrid because, unlike normal Executive bills, it affects specific private interests as well as the general public interest that lies behind the project.
I wish to pursue that, because I am not entirely clear how the stage 2 process would differ from the present consideration stage of a private bill, in that the members of the ad hoc committee, or whichever committee was dealing with the bill, would have to consider all the evidence and objections and make recommendations. If that is the case, how would that speed up or streamline the process?
The parallel issue is exactly that: how one can find ways of streamlining the process to get a transport infrastructure bill through more quickly, while continuing to allow for rights of objection. In other words, it is exactly the same issue as would arise under almost any of the models that we are considering. In every case, the objective is to find ways of streamlining and expediting the process while allowing proper scrutiny and rights for objectors.
You have confused me slightly because you gave the impression that we could keep the private bill system for other things. I have spoken to a number of members who agree that, whether it is for a wind farm or a railway line, the private bill process does not work because one cannot amend or influence the legislation. The question is whether the process can be fixed or whether we need to start again.
Members might want to question details of what Colin Miller has said. Although the committee's inquiry is helpful, if members are agreeable, I believe that we need to have a working group to consider the details. There are attractive models that could help us to streamline procedures, but we need to consider the detail of how they operate. It seems that some of the models that we propose are up for discussion. They are certainly fliers for possible ways to proceed, but we need to go into the details rapidly so that we can start to address the situation.
Not at all.
My concern about the private bill procedure is that Parliament just rubber-stamps a private idea and does not have any influence. The experience has been, "Well, if you want to amend the bill, that's fine, but we aren't going to do so." How can the Parliament have more genuine influence on a private bill, instead of being involved in just a rubber-stamping exercise?
One answer to that question might be for the committee that scrutinises the bill to appoint an expert reporter to assist it in dealing with what Damian Sharp describes as the technical aspects of the project—assessing the objections and the reasons for them and making recommendations to the committee. It, in turn, would be able to influence the content of the bill—not simply whether the project goes ahead, but the terms under which it goes ahead.
Why bother setting up the working party? Why bother considering changes? Why does the Executive not just introduce the practice that operates for major road improvements or major new roads, of publishing orders? Why do we not just adopt that system for major transport infrastructure projects?
There might be details with which I am not yet familiar but, as I understand it, the standing orders of the Parliament were framed in such a way as to allow private bills to deal with issues such as those in the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill and the National Galleries of Scotland Bill, where there is a requirement for an order of Parliament before projects can proceed. The way in which land is managed in Scotland and the way in which decision making is structured meant that there would have been a gap if we had not provided for private bills.
I accept that and I know that we would need to make other changes if we changed how we deal with private bills. Instead of having everyone spend more time on this, we want to speed the process up. Instead of spending more time having working parties and inquiries, why do we not just adopt the system that we use for major trunk road developments or improvements?
I do not know that the Procedures Committee would want us to do that. It might complain about us if we did.
The point that I am trying to make is that we use that method if we want to extend a motorway and in many other situations, so why do we not regularise transport issues by using that method for a new rail or tram line?
I will let Damian Sharp speak in a minute, but the primary point is that that would reduce accountability.
So are you saying that the way in which ministers deal with road improvements, by publishing orders, means that they are not accountable to the objectors?
No; it is about the interface—not only in road use. There are broad comparisons with the planning system, where there are different forms of scrutiny and accountability. I am not pretending that I am familiar with all the details, but as a principle I do not think that the Parliament would be happy with the Executive if we were to move away from scrutiny to more direct decision making.
There are two aspects to this. It is perfectly possible to make the change that Cathie Craigie suggests, but it would require primary legislation, so there is the issue of timing. There are already three transport bills before the Parliament. There might well be another four before the end of the parliamentary session in 2007. That means that there would be seven bills to deal with before an order-making power could hit the books and be operational. There is a need to deal with issues of the here and now as well as to implement a long-term solution.
On that specific point, you will be aware that I have had considerable experience of one rail line. Does the fact that we went through the private bill process here in Scotland mean that the Stirling to Alloa and Kincardine rail line will not encounter the problems from the private sector that the Larkhall to Milngavie line encountered?
It will not, not because the bill was passed in Scotland rather than at Westminster but because having had those problems, we took account of them and ensured that there was a provision within the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill that made sure that one promoter could not hold all the powers and hold everyone else to ransom.
Good.
That is good.
Is not the distinction between the trunk road orders and the rail, tram and canal orders that once a trunk road is built, anyone can use it, whereas if a rail line is built, only specified operators can use it? A private toll road, for example, would be different and would require a private bill procedure.
That is a further difference that is also part of the issue. Once a trunk road is built and operating, it is governed by a different set of rules to the very complex rules on how a railway operates. There are some differences there.
I am aware that this meeting is sounding like an episode of "Yes Minister". I am in favour of streamlining, but there have to be counterbalances, primarily for objectors. What will you be considering, or what should the Parliament be considering, in relation to notification and objection procedures? Most people are pretty au fait with how to go about objecting to a normal planning application, or can find out relatively quickly if they are not, but this is a different set of circumstances. Should professional help be available to objectors in respect of what can be very technical issues, not least to ensure that an objection is competent in the first place? If so, at what stage and to what level should such professional help be available? I am talking about help not for those with vested interests or for companies, but for ordinary people who do not have the information at their disposal.
I am not sure how specific an answer this will be but it lies at the heart of all the options that have been canvassed so far. The critical question is how and where to strike the balance between the right to make informed objections and streamlining the process so that the whole thing is not interminably protracted to the frustration of everyone, including the objectors. The same question will arise whatever option the committee decides to run with. If we end up with a menu of different procedures—for example, the existing private bill procedure in certain circumstances, a hybrid bill introduced by the Executive and possibly also something modelled on the 1992 act—there might be at least three different processes, and the same question would have to be addressed in relation to each one of them.
I understand Bruce McFee's point. There is a lot that we can learn from trying to improve the planning process, in essence to empower people to participate in it appropriately without slowing down the process and while ensuring that the objectives are still met. Those are the kind of issues that we can examine as we move through the process. We should consider the issues around supporting people and legitimate participation within processes. Perhaps we could move on to discuss that in detail.
A consultancy firm's report on Westminster Transport and Works Act 1992 orders recommended more consultation and direct negotiation before an application is produced for ministerial or parliamentary scrutiny. How much scope will exist for introducing such measures under a Transport and Works Act 1992 model or a streamlined reporter model?
Damian Sharp tells me that encouragement is already given to take such measures. In general, in the management of any project—especially one that involves procedures and legal guidance—consultation and use of the maximum number of opportunities to disperse information should always be encouraged. That should be embedded in everything that is done as a matter of principle. The more that people are informed, the more effectively they are helped to participate. That leads to better decision making.
No matter how we consider the position, the inevitable conclusion is that we will probably need primary legislation to implement some of the available options, even if that just gives the Parliament more flexibility about when it acts internally through committees or externally through reporters. If the committee recommends a committee bill or an Executive bill, what commitment can you give to providing support in drafting resources and time?
I am sure that members know that I cannot pre-empt the First Minister's announcements on the legislative programme. However, we would be as sympathetic as we could be to facilitating an answer. We do not have unlimited resources, but we want to resolve the situation as best we can. I am sure that members appreciate that I cannot be more definitive, for which I am sorry.
The answer does not surprise me.
Thank you.
Will the group involve just officials?
The group will deal with technical stuff on drawing up standing orders and will not make decisions. It will consider how proposals would work in practice, so that we have information on which to base decisions.
I thought that the Executive was establishing the working group. As a committee member, I would like to see the working group's remit.
We have asked for the remit to be provided for our next meeting. If the committee agrees to the remit, the working group can get on with its work. The group will report to us.
We could agree to a remit that covered all the available options. The committee might want to consider the pace of the inquiry, because it might be useful to have the working group's report before we go into more detail.
That is why I suggest that we should have the suggested remit to consider at our next meeting.
If the working group is in the process of being established—
It is not. If we agree to it, it will be established. The Executive has expressed willingness to participate in a working group. I suggest that we should accept that offer and ask our officials to work with Executive officials to produce a remit to which the committee can agree. The group will help to inform our inquiry.
I clarify that, as you said, we will have a suggested remit for a working group at the next meeting, which we will be able to approve or otherwise, and that we will be able to approve the working group or otherwise. We will take it from there.
That is my suggestion.
I do not think that the committee has the power to approve the setting up of a working group. If the Executive is to establish a working group, it should get on with getting the working group set up and report, so that we can comment on that.
I think that the minister was making a suggestion to help us with our inquiry.
We are talking at cross-purposes, I think, and I do not want to confuse matters even more. What we are proposing is that we have a joint working group, so that my officials work with your officials to consider the different models. We would seek members' views on the viability of different models. We are not trying to interfere with the committee's inquiry—that is for the committee to determine and I am not trying to tell you how to run your inquiry—but we should get down to the details and work jointly. We hope that we can achieve a degree of consensus in the Parliament on the matter.
It is important that we see a remit for what the working group intends. That is why I am suggesting that that should come to our next meeting. If we are not happy with that, we can say so then.
Yes.
I thank the minister for attending.
I have some slight concerns about having people who are objectors to the Edinburgh Tram (Line One) Bill. We would have to be very clear that we are not considering the objection or the process that the bill is currently going through. For that reason, I would prefer to stick to people for whom the process has finished. I am slightly worried that we could be seen to be taking sides in something that another committee is determining, and for that reason I do not think that we should hear from objectors to the Edinburgh Tram (Line One) Bill.
I know the point that you are making and I share your concerns. However, the written evidence that we have received, in particular that from Alison Bourne, made some useful suggestions on the process rather than on her specific concerns, and she could provide evidence on that as part of a panel. We made it clear to the witnesses that we would not in any way be considering the merits of the Edinburgh Tram (Line One) Bill, and that we would be considering only the process.
I agree with you there. Many issues about the process have been raised in the papers that I have seen from John and Wendy Barkness and from Alison Bourne. Those issues are procedural rather than being linked to the specific bill that they are involved in objecting to.
If we change the process, will that affect bills that are currently going through the Parliament? If not, are we saying that the process that they are going through is in some way wrong, and so giving credence to objections, even though we do not have the full information? If we are involved in something that is being determined by another committee, whatever the procedural aspects might be and whatever the merits of what witnesses are saying, we will be seen to be taking a view on those objections, no matter what we decide about the process.
We have just heard the minister say that the current process is cumbersome, protracted and inefficient, so there has already been criticism of the process. There is a valid role for the committee in considering all criticisms of the process.
I, too, have concerns about taking evidence from somebody who has been involved in a process that is not entirely finished, and I wonder whether it would place us in any technical difficulties if we were to open the door to the introduction of some other process or form of appeal. I think that everybody accepts that there are problems with the procedure, but if, having taken evidence from objectors to the Edinburgh Tram (Line One) Bill, we were to say that we agreed that there is a problem with the procedure, would we be opening ourselves to anything else? Can we have legal advice on whether such a course of action is advisable?
I note the points that members are making, although it would be helpful for the committee to take a wider range of evidence, not only on one bill. On the concerns that are being expressed, it is probably better that we do not invite anybody who is involved in the Edinburgh Tram (Line One) Bill or the Edinburgh Tram (Line Two) Bill, so I suggest that we invite representatives from the Clackmannan railway concern group and the Kincardine railway concern group to give evidence.
Could we not invite people who were involved in the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill? It was a private bill, and we are concerned with private bills full stop, not only transport bills. The bill has gone through the parliamentary process and there were objectors to it who did not feel that they were able to influence the process.
We have not received written evidence from any objectors to that bill. The idea was to select witnesses from among those who submitted written submissions.
I was on the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill Committee. Halfway through the process, there was a bit of a breakdown, because it was discovered that some of the powers were reserved to Westminster. Most of the objectors objected to the erection of wind farms, which the bill did not cover, because it was concerned only with the navigation and fishery matters connected with the possible erection of the offshore turbines. Most of the objections had nothing to do with the bill, although there were one or two about fisheries, but perhaps we should contact the promoters.
We have been in contact with the promoters of all private bills. The National Galleries of Scotland made a written submission on the process, but we have not had anything from the promoters of the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill or from any objectors to it. It would be difficult for us to call for oral evidence from them if they have not felt that they want to give written evidence. I propose that we invite representatives from the Clackmannan railway concern group and the Kincardine railway concern group to form a panel to give evidence on 23 November. Is that agreed?
A number of papers have been submitted together with the paper on oral evidence. If any committee members have any questions or require any clarification, particularly on the summary of private bill procedure or the summary of the Transport and Works Act 1992, they should feel free to ask now or subsequent to the meeting.
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Commissioner for Public Appointments