Subordinate Legislation Committee, 27 Jun 2000

Meeting date: Tuesday, June 27, 2000

Official Report 127KB pdf

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Transport (Scotland) Bill

Item 2 on the agenda is delegated powers scrutiny. We have received a further response from the Executive on the Transport (Scotland) Bill. Various points have been raised.

On section 1, we sought a response on the nature of the procedure to be used. I am not necessarily satisfied with the position on super-affirmative procedures. I am not sure what the Executive's exact intention is. If we are talking about only the strategies, I can understand that a negative procedure may be appropriate; but if a Highlands and Islands transport authority is to be created—and section 1 seems to be the only part of the bill in which that could be done—I think that considerable parliamentary scrutiny would be necessary to determine what would be included in that, what would be excluded and what the powers of the authority would be.

We should draw to the attention of the lead committee, the Transport and the Environment Committee, that if the Executive is simply suggesting the pulling together of strategies, super-affirmative procedures are probably unnecessary. However, if a Highlands and Islands transport authority is to be created, we would want there to be a mechanism whereby people in the area—and people outwith the area—who have a legitimate grievance could have some input.

I agree with that, convener, and I endorse your remarks about the proposed Highlands and Islands transport authority. When matters relating to the powers of that proposed authority were canvassed by me in open question time during one of the meetings of the Parliament in Glasgow, the Minister for Transport and the Environment indicated that consultants are considering whether such an authority could have powers to buy and sell petrol, to try to deal with the problem of high petrol prices in the Highlands and Islands. From the minister's response, which is on record in the Official Report, it appears that the possession of such powers by a Highlands and Islands transport authority has been contemplated, and that the Executive may confer those powers on such an authority. If the authority is to possess such powers, the super-affirmative procedures should apply.

As a separate issue, I wonder whether the conferral of such powers would breach European Union competition rules if a Highlands and Islands transport authority were to receive state aid in excess of the de minimus amount of 100,000 ecus. It is difficult to see how such a body could purchase petrol without exceeding that limit. Given that ministers are considering conferring those powers to a body proposed under section 1, it would be useful for this committee to have a detailed response from the Executive on the issue of super-affirmative procedures and on whether the conferral of powers would comply with EU rules.

It is unclear what powers section 1 is intended to give to the Executive. Given that we have to report by Friday, I agree that it would be appropriate to draw the issue to the attention of the Transport and the Environment Committee, and to allow that committee to ask the Executive the appropriate questions as to what actions it intends to take. We could then come to a conclusion on whether we think that the proposed procedures are appropriate.

We can certainly proceed in that way.

Section 34 is on the fuel duty rebate, a matter in which I have some interest. The suggestion by the Executive is that the level of detail may be inappropriate for regulations. My understanding is that the FDR is within the devolved competence of the Parliament, but that it is dealt with under licence by the Department of the Environment, Transport and the Regions.

The Road Hauliers Association has suggested that the FDR could be extended. It seems to me that for any scheme for which we have devolved competence, and in which the traffic commissioner and the DETR are involved, regulations may be appropriate. They may not be, but the issue should certainly be considered; otherwise, we may have a democratic deficit. Even before we consider the possibility of its being extended, the FDR scheme for bus operators is already fairly complicated at present.

We should therefore suggest that, when considering section 34, it should be considered whether regulations should be published, as opposed to leaving it to the traffic commissioner to decide what is a registered route and leaving it to the DETR to administer that. That should be flagged up to the lead committee, which will doubtless take evidence on the issue from bus operators tomorrow.

Members indicated agreement.

I do not know whether members wish to raise points on section 64 and the European convention on human rights, which extends into every facet of our lives.

Saying that all legislation that this Parliament produces must be ECHR-compliant is different from saying that it is redundant to mention that requirement specifically in any legislation. We should ask for further information from the Executive on whether its proposed provisions, whatever they may be, will be ECHR-compliant. That is a distinct point. It is our duty to raise such issues of competence at the outset, rather than repenting at leisure at some future date.

I go along with that.

One point that the Executive makes is that all legislation has to be ECHR-compliant, but it is entirely appropriate for the lead committee to pursue the Executive and seek assurance that section 64 does comply with the ECHR.

To follow on from what Fergus said, it would seem to be good practice to use this method of looking at legislation, rather than doing so as an afterthought.

I am sure that the lead committee would not be critical, and possibly would be appreciative, if issues of competence were flagged up by this committee. We are entitled to do that under our remit, in the hope that any fears will be readily dismissed by the response of the Executive.

Also, it is not beyond the realms of possibility that at some stage something that is not ECHR-compliant could be within devolved competence. You cannot rely on the wisdom of everything that comes down. The methodology should be considered. The Executive should, as a matter of course, consider implications arising from the ECHR, irrespective of the source.

I do not have any points to raise on section 67(2). I am happy with the Executive's position on the electronic system. Does anyone wish to raise any points?

Is the phrase

"or to any other circumstances whatsoever"

a normal statutory phrase?

We are advised that it is.

I think that we could agree with that power being used in this way.

On section 69, it is suggested that we should welcome the inclusion of the formal consultation of Parliament. We can do so. It looks as if an amendment will be brought forward to deal with matters in section 78.

That is the Transport (Scotland) Bill dealt with.