Procedures Committee, 27 Sep 2005

Meeting date: Tuesday, September 27, 2005

Official Report 243KB pdf

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Private Bills

The next item is a request from the Parliamentary Bureau concerning private bills, on which the clerk has circulated a note. Coming to the issue anew, but with some background on it, I take the view that there is widespread support for the concept of having more of the work on private bills undertaken by a skilled planner who could hear objections and so on, rather than by a committee. I think that most of the committee would support the objective behind the paper.

The problem is the timetable that the bureau suggests for our making a change to the standing orders. The bureau wants the change to be made as soon as possible, as it is afraid that some bills may not get through the process before the next election. However, we are here to guard the parliamentary aspect. Also, especially on such a contentious subject, anything that we decide must be ultra-waterproof legally, as it would be a great opportunity for lawyers to make lots of money if anyone was unhappy about the outcome because they stood to lose their house, garden or whatever. Any system that we establish must be foolproof, so that it cannot be killed off through an appeal in the courts.

I am interested to hear how members think that we should progress. The clerk suggests that, as a first stage, we could interview ministers on the subject and perhaps ask for written views from other people as a step forward. We should not say that we will do nothing, but neither should we act as a lapdog for the powers that be.

I sat through the committee's previous inquiry into the issue and my concern is the advice that we were given then. I want clarification before we invite anybody to the committee. Would the Parliament have the powers to introduce what is proposed? It was made clear to us when we considered the matter before that it would require legislation. Can the matter be dealt with through the standing orders? If so, why were we not made aware of that during the committee's previous inquiry, which took a substantial amount of time? Is there a problem with the powers that such an assessor would have?

Furthermore, what would happen to the ruling that all MSPs who are considering a private bill must hear all the evidence? We were told that if one member is not present at one meeting, there is a problem, and we went through the whole question of whether we could have substitute members for private bill committees. If MSPs make the decision to dismiss objections without having heard the objections—having heard only a report on the objections—does not that open us up to some form of action?

I understand the rationale behind the proposal, but I wonder why, if the option was available to us, we did not consider it when we looked into the issue only a few months ago.

Convener, I am sure that you will find over the next few months that we do not tend to act as anybody's lapdog, so you can be reassured on that point.

We have two different sets of legal advice. I guess that the Executive's legal advice is that we can proceed with the proposal and I guess that our legal advice is that we cannot. Legal advice from the Parliament's legal directorate is always that we cannot do something, which worries me, although the official line is that the directorate cannot give legal advice to members. If the proposal can be implemented, I am very drawn to it, but I share Bruce McFee's concern about the conflicting legal advice.

I do not know if we can get an answer without exploring the two sets of legal advice. I do not think that the Parliamentary Bureau would have supported the proposal if its legal advice did not say that it could be done. Clearly, the clerks have prepared a paper that says potentially it cannot be done. The evidence that we received before was that we cannot do anything, because we are only MSPs and everybody wants to take us to court. A bit of me says that we need to start pushing the barriers as a Parliament and stop allowing ourselves to be so constrained. It would be in everybody's interest for somebody with the relevant skills and expertise to conduct that part of the private bill process, rather than MSPs, who are not planning experts.

If that can be done, we should do it. We need to explore the legal advice. We can do that only if we hear from the Minister for Parliamentary Business and get some written evidence from others. I do not want to get into a big debate about the whole private bill process, because we have been there, seen it and done it—we know that legislation is necessary. I do not know if we have it yet, convener, but I want a written guarantee from the minister on behalf of the First Minister and the Executive that whatever we do with the proposal, legislation will be enacted in this parliamentary session. We need to be sure that the proposal is not just a way of circumventing the need for legislation.

We have not received any written assurance of that.

My understanding is that the First Minister announced in his legislative programme that there would be a bill along the lines recommended by the committee in its report and that the Executive understands that that bill will be progressed to a timetable for completion by the end of the session.

We should get that in writing.

I agree with all Karen Gillon's points. What she says gives us a helpful way forward. The issue is not about acceding to the bureau; it is about an enabling measure for the Parliament. The private bill process has put great pressure on the Parliament and parliamentarians. The recommended move, which we covered in our inquiry, would improve rather than detract from the process and its accountability. I agree with Karen Gillon that, if the proposal can be implemented, we should go ahead with it.

It might help that we received so much evidence in our previous inquiry. We need to invite the minister to give evidence, but surely written evidence can be provided expeditiously, because we know exactly who will wish to make their views known. We know from our inquiry that they have already formed their views and the proposals are along similar lines to the ones that we considered in the inquiry. The information can be provided expeditiously and efficiently without minimising consultation in any way. The proposal is desirable and, if it can be achieved, it will be an improvement on the current process for all those concerned.

I agree that the proposal would be an improvement for everyone involved. As other members have said, it is not necessary to have a full-blown inquiry. The important issue for me is that we get legal advice that what we endorse is within the spirit of the law. I am happy to hear what the minister has to say and to balance that with written evidence and legal opinion.

We should make it clear that we will not be able to produce something by the end of November. The best that we can do is what is outlined in the paper from the clerk. If possible, we would want to conclude some work in this parliamentary term, so that it could go before the Parliament by Christmas, but it may be that that could not happen before the first week back after the recess. It will be for the Executive to determine when a debate would be timetabled. It would have been useful for us if, before making its decision, the bureau had taken on board the comments that were made to it. Asking the committee to complete work by November is unrealistic given the workload that we already have.

I do not know whether Cathie Craigie has misinterpreted, but I did not hear anybody suggest that we should open up the whole question of private bills again. We came to a reasonable decision on that.

I have two concerns. First, the proposal might be a method of circumventing the full process. I agree with what Karen Gillon said about that: we should have some sort of reassurance from the First Minister in writing.

The big concern, however, is whether what is being proposed can be done legally. It goes part of the way down the road that we all agreed was the right road, but—having sat through all those debates and having been party to making the changes to standing orders that we were asked to make in order to expedite things in the short term—I am concerned that what is in this proposal was not even mentioned as a possibility before. The proposal has come late in the day. If there had been legal advice that it was practical, it could have been placed before us earlier so that we could have made changes to standing orders that would have been enforced by now.

Totally contradictory legal opinions have come to us very late and my concern is that the proposal may have been cobbled together in such a way as to leave us open to challenge. I want to explore that, rather than the principles behind the proposal. I do not disagree with some of those principles—indeed, I think that we endorsed them in our initial inquiry.

I want to ask about the taking of written evidence. I presume that all the people who are interested in the subject have given evidence on the concept of reporters hearing things instead of MSPs hearing them, so we do not need to revisit that. The question now is whether we can put into effect through standing orders what the Executive is going to put into effect through legislation a little later. Is that right?

I think that that is right, convener. In the committee's inquiry, a certain amount of evidence was taken on the general merits of taking some of the process outside the Parliament. However, I suspect that quite a few of the witnesses were not directly asked about, and did not directly address, the legal issues that would arise in relation to the way of achieving that purpose that we are now considering. It may therefore be worth seeking further views on the point, within the timescale that the committee wishes to sign up to.

Views on the legal process?

Yes.

I am not sure whom we would be asking. If we ask Mrs X, who complained about private bill Y, about the legal process, she will probably not be aware of the legal constraints on the Parliament. We have to be clear what we are asking people. I would be keen to ask people who know, rather than simply issuing a general call for written evidence to people who gave us evidence before. We do not want to complicate matters more than is necessary. However, do we not have to make a general call for written evidence anyway?

That is up to the committee.

If the committee has covered most of the ground in the past, I would have thought that we would not have to make such a call. Picking up on Karen Gillon's point, I would have thought that we want evidence from the clever lawyers who are the guys who will be taking us to court if we get things wrong. That would give us a preview of the holes in the proposal.

I suspect that, if we ask two sets of lawyers, we will get three sets of opinions. However, I am concerned about the issue. We really will have to look into the technicalities of the proposal. I genuinely do not have a problem with the thrust of the proposal—we have already travelled that particular route. However, our report contained all sorts of checks and balances to do with the formal consultation processes that had to be gone through before something could be taken out of the remit of MSPs and put into the hands of a reporter. I do not see those checks and balances in the current proposal.

We must be sure about the powers that we would give the reporter. Does legislation allow us to give a reporter the powers that he or she would require to undertake a full investigation? What would be the effects of altering only one part of the system? What would happen if the committee that dealt with a bill disagreed with a reporter's recommendations? Under the proposal, would the reporter make recommendations? What would be the formal process by which one approved or otherwise the reporter's recommendations, if he or she were allowed to make recommendations? On what basis would the reporter make recommendations?

I am not trying to overcomplicate matters, but people out there will want to overcomplicate the system and to take advantage of it. The proposal looks as though it has been cobbled together and thrown in at the last minute.

The minister's people must produce a more extensive piece of paper than that which we have, to take account of some of your points.

We can raise all those matters when we take evidence from the minister. I take on board Bruce McFee's concerns but, even with the current proposal, the final decision still rests with committee members. Paragraph 5 of the minister's paper says:

"It would remain for the committee to decide whether to accept the report … or to consider further evidence as necessary."

We can ask the minister about those matters, but the paper addressed some of the concerns.

Several helpful questions in paragraph 8 of the clerk's note could be addressed in advance. Given the timescale because of the October recess, could we ask the Executive for a written response that could be circulated for members to consider before the meeting? Can we also ask our legal people for a similar written brief? That would be a private paper. I reiterate that I would like our legal people to tell us how something can be done, rather than constantly telling the Parliament how things cannot be done. I have become increasingly frustrated with legal advice that is seen to protect the interests of officers rather than members.

Good stuff. The consensus is that we will ask the minister to give evidence and that, before that, the minister's people and our people will produce pieces of paper.

What about whom we ask for written evidence from outwith Government sources? To take into account points that have been made, do we have a selective invitation to people who could contribute usefully on the legal aspects of the argument?

The Law Society of Scotland and the Faculty of Advocates are used to providing expert legal opinion on matters with a legal aspect to parliamentary committees. We could ask them to do that within a reasonable timescale. We could discuss other sources with the convener after the meeting.

Okay.