Private Legislation
The next item of business is a debate on motion S2M-2764, in the name of Iain Smith, on behalf of the Procedures Committee, on its report on private legislation, which is its fourth report in 2005.
I am pleased to see such a packed chamber for this important debate.
It is important to give some history behind why the Procedures Committee proposed today's debate on its report. To some extent, the Scotland Act 1998 left a hole in respect of how private legislation and bills such as works bills should be handled. Pre-devolution, the Private Legislation Procedure (Scotland) Act 1936 allowed a provisional order to be laid. If that was opposed, parliamentary commissioners considered matters and could hold a public inquiry if necessary. A confirmation bill then went to the Westminster Parliament. However, that procedure, which applied prior to 1999 for Scottish private legislation, is no longer available to the Scottish Parliament.
In England and Wales, the Transport and Works Act 1992 removed major works, such as railway and tram works, from the private bill procedure. There is a draft order and, if there are objections, a public inquiry, followed by ministerial confirmation. There is no direct parliamentary involvement in the transport and works process. That procedure is not available to us in Scotland.
In the absence of any legislative alternative, the Scottish Parliament effectively had no option but to establish through the standing orders—as it is entitled to do by the Scotland Act 1998—a procedure for handling private bills. That procedure was drafted by the Procedures Committee in 2000, ahead of the introduction of the first private bills in 2002. The standing orders do not differentiate between different types of private legislation: between works bills for new railways, for example, and non-works bills, such as the National Galleries of Scotland Bill.
The procedures work pretty well for relatively straightforward pieces of legislation, such as uncontroversial bills to which there are no objections. However, it has become increasingly clear during the course of this parliamentary session that the present procedures place an unacceptable burden on parliamentary resources when complex works bills are being dealt with, especially if the bills attract a considerable number of objections. Also, due to the record investment that the Scottish Executive has made in public transport, there has been a much larger volume of works bills than may have been anticipated. The Stirling-Alloa-Kincardine Railway and Linked Improvements Bill has been passed, and the Waverley Railway (Scotland) Bill, which will establish the Borders rail link, is under scrutiny. The two Edinburgh tramline bills are also presently under scrutiny, and bills to establish rail links to Edinburgh and Glasgow airports will be coming down the track, as it were, in the coming months.
A number of specific problems have resulted from those factors. There is a limited pool of available members who can serve on private bill committees. Each bill involves a huge time commitment for members on those committees, not only because of the number of meetings that they may have to attend, but because of the vast amount of documentation that goes with such bills. That time commitment is on top of those members' normal parliamentary and constituency requirements—attendance at normal committee meetings and at meetings of the Parliament, and dealing with their constituency business. There is also a huge administrative burden for the Parliament in handling the processes, and there is concern that the number of private bills that are being dealt with may lead to delays in our ability to go ahead with some important infrastructure investment. There is also a degree of public dissatisfaction at the fact that it is not always clear what the purpose of a private bill is and what the public can legitimately object to.
The attention of the Procedures Committee was drawn to a number of specific issues that arose during the passage of the early private bills. The committee decided that it was a priority to consider the private bill procedures and to make long-term and short-term proposals to address those issues. The committee took a considerable amount evidence from those who have been involved in the private bill process, including extensive briefing sessions with clerks from the Scottish Parliament's private bills team and clerks from the Houses of Parliament. We also visited Ireland to discuss with Government officials, members and clerks from the Houses of the Oireachtas how works legislation is conducted in Ireland. That was particularly valuable, as it became apparent that whenever possible in Ireland, matters that may previously have required private bills had become, under primary legislation, subject to ministerial powers. That approach may be appropriate for consideration of such things as the navigation rights around offshore wind farms such as Robin rigg. That matter was addressed through a private bill, but if we are to have many more offshore wind farms, it might be better to deal with the matter through some form of primary legislation that gives ministers appropriate powers, rather than through a series of private bills.
Having considered the evidence, the committee agreed that it needed to devise a new procedure for dealing with works-type private bills, and we are grateful to our working group of Executive and Parliament officials, which examined the practical implications of various options that were available. We concluded that the best way forward was a new statutory framework that was based on the Transport and Works Act 1992 model but which retained a higher level of parliamentary involvement. We have called that framework TWA-plus, and it is referred to in annex C of the committee's report. It is a system in which the Scottish Executive would be responsible for laying the orders for a new works scheme for a railway, a tramline or even a canal, and in which the Parliament would have an opportunity, at an early stage, to consider whether that order should progress to more detailed consideration. That detailed consideration would not be carried out at parliamentary level; it would be done through an independent reporter and a public inquiry, if appropriate, as would happen for a major road scheme. In fact, it might be possible to extend the model to the construction of motorways and major road schemes, for example. Once the public inquiry had been conducted and the reporter had reported, the ministers would make the final determination and lay an order for parliamentary approval.
The introduction of that framework would require primary legislation, and we consider that that would best be progressed by the Executive. We recommend that the Executive introduce such legislation during the current session. The exact shape of the process, including the extent of parliamentary involvement at the various stages, would be a matter for further discussion during the development of the legislation and its passage through the various bill stages.
We also considered some more urgent matters because we felt that we needed to make some immediate changes to standing orders. I will run through them quickly because I know that our time is limited.
The first is environmental impact—I can tell that Alasdair Morgan is very keen to speak on that subject. There was concern that the private bill procedures were not as robust as those required for other planning matters, particularly as regards the early involvement of statutory bodies such as Scottish Natural Heritage, Historic Scotland and the Scottish Environment Protection Agency. We have therefore proposed changes to standing orders to ensure that the private bill process is every bit as robust as the processes that are governed directly by environmental impact assessment regulations. Those proposed changes are attached to our report. Incidentally, members who have read the report in great detail will have spotted that there is a mistake in the cross-references in annex A to the proposed new rule 9A.1.4A, which, as members know, should be references to rule 9A.1.4B. Those corrections will be made by the clerks before the standing order changes are published.
Secondly, we considered the make-up of the private bill committees. We wanted to clarify the rules about who is eligible to be a member of such committees to allow—we hoped—a bit more flexibility. We also wanted to ensure that there is public confidence in the system. As part of that, we believe that a public commitment to impartiality has to be made by members at the first meeting of a private bill committee. For example, although all members generally support the new rail schemes, private bill committee members have to consider those bills impartially, and there has to be a commitment to that on the record.
Thirdly, we wanted to adjust the rules about attendance at private bill committees because we felt that they were rather too rigid. In fact, the committee had a very robust discussion with legal advisers about whether the rules were appropriate. We came to accept that the legal advice was very clear that all members had to be present. However, the rules need to be changed to ensure that only people whose evidence was being taken at the time have a right to object if a member is not present, rather than everyone who is involved in the process being able to object, as that might involve hundreds of objectors.
Fourthly, at the request of the Edinburgh Tram (Line One) Bill Committee, we considered late objections to ensure that, while we were tightening up the criteria for lodging late objections, we were giving the private bill committees a bit more flexibility in considering them.
Finally, the issue of a change of promoter might become particularly relevant if the Transport (Scotland) Bill is passed, as the promoter for the Glasgow airport rail link might have to change.
That concludes my quick run through all the key issues that are included in the proposed changes to standing orders.
I move,
That the Parliament notes the Procedures Committee's 4th Report 2005 (Session 2), Private Legislation (SP Paper 334); agrees that the changes to Standing Orders set out in Annexe A to the report be made with effect from 12 May 2005, but agrees that new Rule 9A.1.4A shall not apply to any Bill introduced before 5 September 2005.
Today's debate had its genesis in 2000, when the former Procedures Committee recognised the potential of a system that could be established by an act of Parliament to deal with private bills. However, due to constraints on time and resources, the committee concluded that it would not be practical to move ahead at that time.
Five years on, we have the makings of a system that radically alters the existing private bills system in a way that is progressive and advantageous to all parties. Members who are reading the fourth report in 2005 of the Procedures Committee for the first time might find the subject matter dry. However, the evidence that we received and the dialogue that we held have been quite interesting. If nothing else, that comment should ensure my entry into the anorak of the year awards, if not guarantee me the first prize.
Although it was abundantly clear from most, if not all, witnesses that the present system for dealing with certain private bills is cumbersome, demanding and likely to lead to delays—there was a united front for change—there were sharp divisions over the shape of any new system, on which conflicting evidence was offered. It is fair to say that the committee's view altered as we heard evidence supporting various proposals, then changed again as we heard about the downside of those proposals. We learned quite a lot from our witnesses: MSPs who had been involved in the process; objectors to previous bills; different agencies; and, of course, the professionals, some of whom might or might not have had an interest in retaining the current system. We also gleaned valuable information from our visit to Dublin, when we heard at first hand about the changes to the Irish system.
However, at the end of the process, having listened and studied the various models from different places, we decided to recommend none of them.
The system that we have recommended is, in effect, a hybrid of two or more schemes and is designed to improve the process for all. It will ensure greater consistency, make best use of parliamentary time and bring greater experience and knowledge to the process, but it will still leave the political decisions to elected members rather than officials.
Our recommendation for a TWA-plus system is outlined in a non-prescriptive way in annex C of the committee's report. Implementing the recommendation will require primary legislation, which will need the Executive's co-operation in creating space both for the drafting of and consultation on the proposals and for the passing of a bill before any of the desired changes can be made. However, the whole Parliament will be involved in scrutinising any such legislation, because annex C does not specify the final model. It may be two years or more down the line before any new system is operational, but the suggested system would be infinitely superior to continuing to make the piecemeal changes to existing procedures that the committee has been required to propose to help to alleviate the pressures that have built up in the current system.
The biggest proposed change is to move from a purely parliamentary system to a statutory one, whereby instead of the introduction of a private bill that becomes the subject of detailed scrutiny by MSPs, the Executive would make an order that would have be scrutinised by an independent reporter with expertise in the field. If that proposal is legislated for and implemented sensibly, we will have a process that is coherent, transparent and easily understandable.
I ask the Executive to pay particular attention to some of the provisions in the Irish scheme before it drafts any legislation. Under the Transport (Dublin Light Rail) Act 1996, an order-making procedure for light-rail projects was introduced that was used for four Dublin tram proposals between 1998 and 2001. The system involved the appointment of an inspector—rather like our reporter. In three cases, the inspector granted the order. In the fourth case, an order was not granted but a revised application was submitted and eventually accepted.
Although the act was superseded by the wider Transport (Railway Infrastructure) Act 2001, the process was generally felt to have worked well, partly because it placed an onus on the promoter to try to resolve objections before the start of the public inquiry. Six months before the submission of the application, the promoter was expected to begin consultation with local communities that would be affected by the proposal.
In addition, the system did not involve any fee for the lodging of objections, although objectors were responsible for bearing their own costs. Crucially, objectors could apply to ministers for reimbursement of costs incurred, including legal costs. The system also provided for objectors to put submissions directly to both the minister and the public inquiry. A public inquiry was compulsory in all cases. The inspector/reporter was independent and had the power to compel both the attendance of witnesses and the production of relevant documents. An important point is that the inspector had a degree of flexibility to amend proposals without requiring that a new application be submitted.
In conclusion, the committee's report is a positive step towards a 21st century method of handling what we currently call private bills. I hope that Parliament will endorse the report. I trust that the Executive will examine the positive elements of practice in other countries when it drafts the legislation.
I am happy to outline the Conservative position on this issue.
Members of the Procedures Committee were circulated with an interesting late written submission from Councillor Lawrence Marshall—who, like me, is obviously a great railway enthusiast—who suggests that the procedure requiring rail schemes to be promoted via a private parliamentary bill is a relic of the Victorian era that discriminates against rail and tram projects.
Among the main criteria for deciding which MSPs will sit on a private bill committee are that the MSPs are not local members and have no axe to grind about the project. Interestingly, Councillor Marshall challenges that. His guiding principle would be that decisions on private bills ought to be taken by MSPs who represent those who live in the immediate vicinity of the project. In that way, the members of the committee would be accountable to the local population for their decisions if things went wrong. He suggests that projects would be best determined by local councils. Indeed, he asks what the difference is between a councillor sitting on a planning committee that considers a proposal to build a new school and an MSP who sits on a private bill committee that considers an application for a rail or tram project.
I found Councillor Marshall's ideas thought provoking, but was reminded of the well-known comment that Ross Finnie makes whenever he talks about fish, which is that fish do not recognise boundaries but constantly swim from one territory to another. In the same way, trains go steaming through council boundaries, and that is perhaps where Councillor Marshall's theory might not work in practice. At any rate, so long as private bills are to be looked at by members of this Parliament, we agree in principle with the changes suggested by the Procedures Committee.
The changes are intended to bring flexibility and, in the main, are common sense. However, we are concerned that the environmental aspect is perhaps being highlighted more than is necessary, bearing in mind that the Parliament is fulfilling its objectives pertaining to European Community directive 85/337/EEC, on the assessment of the effects on the environment of certain public and private projects, by ensuring that environmental information on a project is collected, publicised and taken into account in determining whether or not to pass a bill. That is done in the form of an environmental statement, which is one of the essential documents required for any works bill. Therefore, the safeguard should be in place. As statutory environmental bodies currently have the same rights as any others, we do not really see why they should be entitled to a priority right above all other agencies.
We believe that the long-term statutory proposal is a sensible way forward. Although the initial concern might be that the system is moving away from the Parliament and from MSPs, we consider that the TWA-plus option is probably the right one. Having looked at the systems used by other Parliaments, it appears that most of them eventually turn to such a system when it comes to scrutinising intricate and technical bills. It makes sense to have experts examine the proposals first, rather than expect MSPs to become experts overnight. We also sincerely hope that the new proposals will lessen the sheer weight of private bills that are before the Parliament at the moment, so that no one suggests bringing in congestion charges to ease the private bill traffic jam.
I welcome the report's contents and, unlike Jamie McGrigor, I very much welcome the measures that will improve the system, particularly in terms of environmental issues. Proper regard can be given to Scotland's natural heritage and environment by the proper inclusion of the Scottish Environment Protection Agency, Scottish Natural Heritage and Historic Scotland in the process.
The main issue that we should discuss today is the long-term vision of how we deal with private bills—a particularly arcane and increasingly difficult type of legislation—in this Parliament. As has been said, the Procedures Committee discussed different ways of dealing with private bills, including the TWA model, the semi-parliamentary model, the 1936 model and so on. It became clear towards the end of the process that the TWA model was the one that was finding most favour. As Jamie McGrigor suggested, there were real concerns that the TWA model that is used at Westminster took important scrutiny powers away from Parliament and away from members of Parliament, and that it gave too much power to determine the process to the Executive or Government. We must recognise that there is a reason why the matters that are addressed in private bills are legislated for: it is because powers are conferred that go beyond the normal planning regime and they need proper national scrutiny.
Having heard the evidence, I recognise completely the major dissatisfaction with the current system. The MSPs who have been on private bill committees have found the whole process extremely tedious and taxing, and there have been questions about whether sitting on one of those committees and, in effect, carrying out a public inquiry is an effective and appropriate use of MSP time. I agree that we need a new system. Having heard evidence from Margaret Curran and Nicol Stephen, I was reassured about the TWA model that was being proposed. I believe that the model that we are now calling TWA-plus is actually a long way away from the TWA model that is being used at Westminster—in many ways, it is unhelpful to call it TWA-plus, because it is so different. It is those differences—the plus part of TWA-plus—that make the Executive's proposal much more acceptable.
I was worried by the lack of parliamentary scrutiny in the TWA model at Westminster because there is a requirement for parliamentary scrutiny only of proposals of national significance. I find the national-regional division very unhelpful; that was borne out by a consultants' report in 2002 into the TWA model at Westminster. We can learn a lot from the consultants' report about how to bring about a better system for Holyrood.
As I said, I was reassured by the ministers' comments. Nicol Stephen made it clear that the system that was envisaged was one of order-making powers that would be driven by the Executive but would include parliamentary scrutiny and approval at key points. It is important that we have the correct balance.
The Executive may put forward proposals that it will usually fund, and I see the advantages of a system that is based on TWA rather than bills, but in which there is proper parliamentary scrutiny at all the key points. It is important that Parliament itself decides the level of scrutiny and that there is no arbitrary national-regional divide. Nicol Stephen made it quite clear that
"There will need to be discussion between the Parliament and the Executive on the issue, but if the Parliament expressed a clear wish to be involved in a scheme, I find it difficult to believe, under the model that we are developing, that the Executive would wish to resist that or would seek powers to resist that."—[Official Report, Procedures Committee, 1 February 2005; c 803.]
It is also important that there is a proper public inquiry and a proper opportunity after the public inquiry for Parliament to scrutinise the minister's decision. Under step 6 of the proposed TWA-plus model, a ministerial decision would attract much less attention than previously. However, we need a proper level of scrutiny at that later stage and, given ministers' remarks, I am confident that we will get that level of scrutiny.
The convener suggested to ministers that, to some extent, we are discussing a semi-parliamentary model—one that would use orders rather than bills. We have to take the proposal forward in that light. I welcome the consensual remarks that the ministers have made about working together to produce a system that will speed up and bring about the major transport infrastructure developments that Scotland needs.
I am pleased that we are having this debate and I am delighted that the Procedures Committee has published the report—it has stuck with the issue for a considerable time. I am even more delighted that my local colleague, Councillor Lawrence Marshall, the member for Portobello, has featured so prominently in the debate, courtesy of Jamie McGrigor. I am somewhat mortified—as I am sure Lawrence Marshall will be—that it has taken a Tory to recognise his contribution to the transport debate. I rectify that by putting on the record the fact that I, too, recognise his contribution to the debate.
The reason why Lawrence Marshall and others, including me, have taken an interest in the issue is that we are passionate about making improvements to our transport infrastructure and other areas of development in Scotland. On the face of it the debate might seem to be solely for procedural anoraks, but when we translate the procedural technicalities into what they mean in practice, the fundamental question—as Iain Smith said in his opening speech—is about how we deliver key infrastructure investment projects throughout Scotland.
If I have a gentle criticism of the Procedures Committee report it is that a great deal of its analysis views the matter through the prism of process rather than outcome. Although I accept that concerns about the amount of parliamentary time, the level of parliamentary resources and the detailed scrutiny of objections are important, the key consideration for us as a national Parliament should be to ensure that we move forward further and faster in delivering the rail links, tram systems and other projects that we need in a modern, 21st century Scotland.
I would have no difficulty in supporting the status quo and arguing that we should put more time and effort into the existing decision-making process if I thought that that was the best way of pursuing the overarching objective, but I truly do not believe that it is. I say—as I have said before—with the utmost respect to colleagues who are involved in the various private bill committees in the Parliament that I am concerned that our current approach adds years rather than value to the decision-making process. That is not sustainable.
I fundamentally believe that the Scottish Parliament's role should be to consider the strategic direction of our nation and to set the overall legislative and policy framework; it should not be to scrutinise the detail of every project or proposal that comes before us. In Scotland there are 32 democratically elected local authorities, goodness knows how many non-departmental public bodies and all sorts of other mechanisms and forums—including the Executive—that could do that work.
Moreover, the more the Parliament concerns itself with such operational detail, the more our energies and mindset are diverted from the strategic considerations that only a national Parliament can address. Let us consider the proposals for tramlines in Edinburgh. Of course the Parliament should be involved in strategic considerations about whether the reintroduction of trams is the right way forward for our capital city, or whether the overall network that is proposed is the right one, but the consideration of the detail of each route in a single bill is surely not the best contribution that the Parliament can make. Hundreds if not thousands of person hours are taken up by such detailed consideration, although much of that work has already been done by a democratically elected local authority.
The current rules require such detailed consideration, and I appreciate that colleagues have done the job thoroughly. However, it is within our gift to change the rules and procedures and I sincerely hope that we will do so. I will return to the example of the tramlines, because the matter is of considerable concern to me. Indeed, I take the opportunity to say that although only two proposed tramlines have come before the Parliament, a third line should be delivered, too. The fact that such proposals come before the Parliament as individual bills, which require detailed discussion about individual routes, militates against the Parliament's consideration of the strategic questions that we ought to be considering. I do not for a moment suggest that the concerns of local residents about a rail link or a tramline's route should not be considered; I say simply that the Parliament is not the best or most appropriate forum in which to do that.
Initially, the Procedures Committee was concerned about the fact that proposals for tramlines, for example, are not considered through the regular planning system, but we became convinced that when a private company such as Transport Initiatives Edinburgh Ltd wants powers that go way beyond normal planning powers, there must be proper scrutiny of the matter, which is why a private bill is introduced. Does Susan Deacon acknowledge that the granting of such powers to private companies must be subject to proper scrutiny?
I am glad that Mark Ballard raised that issue and I make two points in response. First, of course there must be proper scrutiny. However, I repeat that the Parliament and its current procedures do not offer the best or most appropriate way of carrying out such scrutiny. Ours is a devolved Parliament and we should promote the general principle that scrutiny should be devolved to a local level as far as possible. That has happened and it can and should happen.
Secondly, I will risk being slightly provocative by saying that the Parliament will ultimately be judged not on the quality of our questioning and analysis but on the ambition and scale of the changes that we deliver. Scrutiny, consultation and accountability are watchwords of the Parliament and remain true, but they represent a means to an end, not the end in itself. As the Parliament grows and develops, of course we should consider how we ensure that we have effective scrutiny processes, but we must balance that against the need to ensure that we reach a decision timeously and in a way that matches real-world needs with real-world demands. We live in a fast-moving world. If Scotland is to compete on the global stage, we must ensure that the record investment that Iain Smith mentioned hits the target quickly—that is what the people of Scotland look for from us.
I am grateful to the Procedures Committee for its inquiry and the report that it has now published.
Do the procedures under which the Parliament currently operates help, or get in the way of, the delivery of the transport infrastructure that we all want and that Scotland needs? I think that they get in the way. As the convener of the Waverley Railway (Scotland) Bill Committee and as the Scottish National Party chief whip, I am involved in all parts of the process. I know how difficult it is to get MSPs to go on to a private bill committee.
I have served on the Waverley Railway (Scotland) Bill Committee for a year and a bit. I was promised that it would only last a year, but there is probably another year and a bit to go before we are finished. After long trials, jury members can be given exemptions for life. Some MSPs have served a long time on private bill committees. The committees are extremely time consuming and difficult, and work done by MSPs on such committees is in addition to their work in the Parliament and on other committees.
I welcome the Procedures Committee's report and the scrutiny that the committee has given to the system for private bills. I welcome the proposal for a statutory system; that is a sensible way forward. The way that we operate at the moment is not helpful—either to the proposers of the bills or to the MSPs on the private bill committees.
It was not anticipated that there would be many works bills, but we now have two tram committees and the Waverley committee, as well as a smaller committee that is not considering a works bill. Many MSPs are involved on those committees. Most of the bills are to do with the same area, and the local MSPs are precluded from being on the committees.
The Stirling-Alloa-Kincardine Railway and Linked Improvements Bill Committee, the Edinburgh Tram (Line One) Bill Committee, the Edinburgh Tram (Line Two) Bill Committee and the Waverley Railway (Scotland) Bill Committee have involved an inordinate—and I would say unfair—number of MSPs from Fife. We are close enough to the action but not actually involved in it. Because it would be unfair to bring somebody down from Aberdeen or Inverness on a Monday to serve on the committees, some other MSPs are being distinctly put upon. I include myself in that category. All business managers should be a bit fairer to the folk of Fife in future.
This Parliament and its processes are evolving. At the beginning, we were not sure what would be involved. We sucked it and we saw, and it is not to anybody's advantage to continue as we are.
The Procedures Committee has taken the Parliament and its processes a big step forward. As Susan Deacon said, the challenge is to translate that into real infrastructure. Although I welcome the proposal for the Executive to introduce legislation, I urge that such legislation should be introduced as soon as possible. A number of private bills are already waiting in the wings and my biggest concern is that they will go through our present process, with all the difficulties that that would entail. The Executive should find a way to bring forward the legislation so that proposals that are in the pipeline can be brought into the system as quickly as possible. That will allow Scotland's transport system to move forward.
Like other members, I welcome the Procedures Committee's report. However, the committee has not addressed some fairly fundamental issues as straightforwardly as I would have hoped.
There is a fundamental issue at the core. Major transport projects can proceed only with the blessing of the Executive and at the Executive's behest, so why are we taking the private bills route? There is something fundamentally inconsistent about the use of a private bills mechanism to progress what are clearly Executive programmes. If we have a process of scrutiny that is separate from the subject committee system and the usual system of financial scrutiny—in which, as the convener of the Finance Committee, I have an interest—we could end up examining closely the detail of proposals and how those proposals will operate in a particular setting within a given programme at the expense of looking across programmes and finding out how choices are made.
To pick up Susan Deacon's point, I question whether the Parliament's scrutiny resources are necessarily being used in the correct way if we use the private bills mechanism to focus separately on each transport project rather than have a system of overview. I can understand why the Procedures Committee has concentrated on streamlining the existing procedures, because it is clear that they contain flaws—not just the amount of time that members must spend on the consideration of private bills—but we need to address some more fundamental issues.
Susan Deacon was right to make the point that there are three rather than two Edinburgh tram proposals: only two have been taken up in private bills. There are three other proposed transport projects in the greater Edinburgh area—the Borders railway, the Waverley project and the airport link. There is no logic in considering each of those proposed developments in isolation. The Executive has given a clear statement that it will move towards establishing a national planning framework. I hope that that will involve a mechanism for cross-project analysis, which will enable us to determine what added value is given by one project as opposed to another. That would mean that the Parliament would be factored into the process of making the key choices.
There are choices to be made. It is not possible to do every project, so we must decide in a systematic way which are the best projects to do and must have transparent reasons to explain why project A rather than project B should proceed.
I do not necessarily disagree with some of the things that Des McNulty is saying, but I think that he has perhaps misunderstood the purpose of our report on private legislation. Is it not the case that the issues to which he refers are matters that should be dealt with as part of the Parliament's budget process or considered in the context of the discussions on the regional and national transport plans that are taking place as the Transport (Scotland) Bill goes through Parliament?
There is an argument for examining the private bills process, but only if we can get the other mechanisms right and ensure that the private bills process does not pre-empt those other mechanisms. That is what I think is the problem with the current arrangement. The Procedures Committee has produced a partial solution to one set of problems, but there is a bigger set of problems that we as a Parliament need to address. We have not got the mechanisms right.
The danger is that people—whether promoters or the Executive—will go a considerable way down the private bills route with a project that might not go ahead because it is not the right project with which to proceed. Decisions change because they have to—that might be because of external financial constraints or because the costs that are associated with a project change significantly. A few weeks ago, the Minister for Transport pointed out that the costs that are associated with the Aberdeen western peripheral route have gone up by more than 100 per cent since the original announcement was made. That situation will not be unique to that transport project; it might well arise for other projects.
A project's cost-benefit analysis must be kept under constant review and should not be considered in isolation, separately from analyses of other kinds of project. Such scrutiny is not part of normal budgetary scrutiny, but it must be factored into the process. We must be able to hold ministers properly to account for what they do. In my view, the parliamentary mechanism that is used to factor in such scrutiny—the private bills process—might be preventing that role from being exercised as it should be.
I am very dissatisfied with the present procedures. I recognise that the Procedures Committee has come up with some positive steps to streamline the private bills process. However, as all of us know, these transport infrastructure projects come from the Executive. We need to take a further look at the general process of how we deal with them. I hope that we do not view our support of the Procedures Committee in this instance as the end of the matter; other fundamental issues still need to be addressed.
We move to winding-up speeches. I would be grateful if members could keep their speeches as tight as possible.
Having listened to other members, I have nothing further to add. The Conservatives will support the motion.
Thank you, Mr McGrigor.
That was one of the best speeches that I have heard from Jamie McGrigor for some time, but I will not be quite as brief.
I was one of the members of the National Galleries of Scotland Bill Committee, which held four very short meetings. If anything exemplifies the bizarre nature of the private bills procedure, the National Galleries of Scotland Bill does so. We had the full weight, expense and majesty of parliamentary procedure, all to allow the National Galleries of Scotland to build on about 50yd2 of Princes Street gardens—a development to which no one objected in any case. If I recollect correctly, the most interesting thing to emerge from the meetings was the admission by the City of Edinburgh Council that it had got over the prohibition on commercial building in the gardens before by classifying a permanent ice cream kiosk as a garden shed.
I now sit on the Edinburgh Tram (Line Two) Bill Committee, which is a different beast in terms of the complexity of the project and the number of objections. I agree with Susan Deacon that the level of detail that our current procedure forces us to get involved in is not appropriate for a Parliament. In general, the Scottish Parliament should deal with matters of broad principle. We should have a procedure outwith the Parliament that allows for fair and thorough coverage of the issues on the one hand, but which does not become a mechanism by which projects are delayed inordinately on the other.
I do not necessarily agree with everything that Des McNulty said. I am conscious that the Edinburgh Tram (Line Two) Bill Committee cannot consider whether the money that is to be invested in tramline 2, if it goes ahead, should instead be spent on tramline 3, but neither should it have to do so. The Parliament has a Local Government and Transport Committee that deals with transport matters and that committee could consider the issue if it chose to do so—that avenue is open to the committee; indeed, it may have decided to take that route.
My understanding is that the rules of the Parliament make it difficult for the Local Government and Transport Committee to engage in considering a transport project that a private bill committee is considering.
It might be an idea if we were to change the rules. Surely it is not beyond the wit of the Local Government and Transport Committee to investigate whether money would be better spent on a tramline to Edinburgh royal infirmary than on a tramline to the airport and to do so in general terms without impinging on legal considerations and risking judicial review. That should not be a problem, and even if an issue were to arise, we should be able to find a way round it.
Does not a commonsense issue need to be factored into the argument? I am thinking of the people whom we keep asking for their views. I return to my preoccupation with the tramlines. The local authorities concerned have already asked people for their views on the tramlines and yet Alasdair Morgan is advocating that not one but two parliamentary committees should also ask for their views. That is not an effective use of anyone's time, energy or thinking capacity. We need to move forward on the issue.
The point that I was making picked up on Des McNulty's point about the Parliament taking an overview of Government expenditure and the strategic projects in which the Scottish Executive should invest our cash. Des McNulty made the point that the Parliament should consider the broader issues. I cannot see any obstacle to doing that under the current procedures.
Iain Smith referred to confusion about the current procedures, which is indeed a problem. The process can appear complicated to the public. Many people in Galloway thought that everything was done and dusted when the Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Bill went through the Parliament. In fact, the bill was only one part of the 10 or 15 permissions that required to be obtained north and south of the border before the Robin Rigg wind farm development could go ahead.
There is an interesting point to be made about House of Commons scrutiny because, as Iain Smith said, the Scotland Act 1998 left a bit of a hole in our legislation. It does not say much about the practice of constitutional bills being taken by a Committee of the Whole House when details, such as the amendment to schedule 8 that took out the previous provision, are allowed to slip through without any comment.
I do not agree with all the temporary changes to standing orders. Given the size of our regions, I wonder whether the total bar on regional members serving on private bill committees is sensible. Perhaps the situation could be got round in another way. The proposed changes are a reasonable attempt to simplify our current procedures temporarily, but they are no substitute for a fundamental review of the underlying primary legislation.
I had written down to say, "This has been an interesting and a useful debate." Indeed it has. I mean no disrespect to the Procedures Committee, but it has been more interesting and lively than I expected. Standards have been high in the past, but they have been surpassed.
The Executive is grateful to the Procedures Committee for the thorough inquiry that it has undertaken and the nature of the report and recommendations that it has placed before Parliament. The report and the speeches this afternoon have given us much food for thought.
Notwithstanding some of the points that I will come to, private bills have a key part to play in the legislative process at Holyrood. Several important bills have already been passed, and several more private bills that represent significant developments for the people of Scotland are either in progress or in the pipeline.
As an Executive, we have a significant interest in the procedures for dealing with private legislation since, as Iain Smith indicated, statutory authority is required for our substantial programme of transport infrastructure projects, which is necessary to renew and expand our transport network. The Stirling-Alloa-Kincardine Railway and Linked Improvements Bill has been enacted, and many members have referred to bills that are under way. They demonstrate our commitment to modernising transport infrastructure within and between our major cities.
I do not want to repeat points, and members throughout the chamber realise that the current procedures are slow, cumbersome and not always appropriate. Substantive points have been raised to which the Executive will give attention, because it is clear that, under present procedures and given the number of transport and works bills that are in preparation, let alone those that are in the pipeline, the Parliament—never mind the Executive—faces considerable pressure.
I would not normally associate the phrase "put upon" with Tricia Marwick. In my experience, she does a good job of standing up for herself. However, I acknowledge the points that she and other business managers have made at the Parliamentary Bureau about the pressures facing MSPs. I pay tribute to the work that MSPs do in undertaking their duties. I am not sure whether there is a particular Fife dimension to the matter, but if so it is certainly not personal, so I ask Tricia Marwick not to take it that way—although it might be worth bearing that in mind in settling future scores. Before Jackie Baillie shouts at me again, I say that I appreciate members' work in discharging their duties.
When establishing private bill committees, will the business managers and others consider in advance the day on which committees meet, so that they can be resourced accordingly? My poor colleague Alasdair Morgan had to take over from me on the Edinburgh Tram (Line Two) Committee, because it turned out that I was the only member who simply could not fit in with the day on which other members were available, because of other commitments. That practical workaday issue should be examined.
As Stewart Stevenson will know, the Procedures Committee has come up with temporary proposals to address our immediate challenges. I do not think that any business manager would rule anything out if we thought that it would ease the passage of the work.
We need to consider the fundamental challenges that we face. The committee's work has been extremely helpful, because we need to find a better way of dealing with private legislation and with major infrastructure projects that are of national importance.
Susan Deacon and Des McNulty made some telling points. The Executive is in no doubt that we need a system that will enable us to deliver our strategic interests in transport. As Susan Deacon said, the system should match our ambitions for Scotland and our plans for the development of transport and other linked services. We need harmony between the various processes. The financing of transport infrastructure projects is critical to the Executive's budget planning, as Iain Smith said. We must ensure that we get value for money and that we have sufficient resources to undertake other programmes. I assure Des McNulty and Susan Deacon that we will take on board their points, which strike at the heart of our response to the committee's report. We must ensure that we deliver our transport commitments. We are updating transport legislation through the Transport (Scotland) Bill and we will ensure that we work in partnership with the Parliament.
I think that I am getting a gentle reminder from the Presiding Officer to hurry up.
It is not that, minister; it is that your voice is fading as you turn away from your microphone.
I am sure that that is a great disappointment to all concerned.
I understand that people in the public gallery sometimes have difficulty hearing what is said at the front of the chamber.
I apologise. I also apologise to the members whom I am addressing for having my back towards them.
I accept the need for a strategic response and the need to ensure harmony between the processes. However, I do not underestimate the effort that the Procedures Committee has put in. Its clear conclusion is that primary legislation is necessary to establish a different and more streamlined system. I appreciate the committee's work in considering the options—for example, it examined work that is being done in England on the issue and worked with a group of officials from the Executive on some of the details. I accept Mark Ballard's point about the clear need for partnership working.
Any new model would need to have a number of key features. We are interested in the work that the committee has done. The proposal is that the Executive would lead the process. That would address some of the points that have been raised, because it would remove the dependency on private promoters and the need for private bill committees to consider major infrastructure projects, which at present require primary legislation before they proceed. It would be for ministers to decide whether to produce an order, after considering specific statutory criteria, including the financial viability of the project and whether the proposed scheme would be in the public interest.
If ministers were satisfied that the statutory criteria had been met, the Parliament would be invited to agree that the project was in the public interest and, on that basis, to signify an initial approval in principle, subject to the outcome of an inquiry into any objections. As has been said, objections would be heard by an independent inquiry reporter, rather than a private bill committee. The minister would then consider the reporter's report and decide whether to lay an order before the Parliament.
The Executive wants to give attention to that package of proposals, which represents a considerable range of improvements.
Does the minister agree with my point that too much priority is to be given to environmental bodies, given that plenty of environmental safeguards already exist? That will only take up more time and make the whole process longer.
Forgive me, but I tend not to look to the Tories for advice on how to handle environmental issues. We would certainly not want to load the process unduly and repeat activities that have already been undertaken, but the member will appreciate that environmental concerns are of great interest to the Executive. Environmental issues are at the heart of many of our procedures. I do not want to raise Mr McGrigor's hopes on that issue.
The Executive is interested in the range of proposals that the committee has produced. We want to continue the partnership working that we have established with the committee and will proceed on that basis. We appreciate the issues that a range of members have raised in relation to responsibilities. There are immediate proposals for standing orders that could improve the process, on which we would look favourably. However, we appreciate the point that the delivery of transport infrastructure is critical to our agenda for Scotland. We need a process that will deliver that and harmony between our big ambitions for Scotland and the processes that will get us there.
It is a pleasure to close for the committee in what has been a largely consensual debate, even if it got a bit spikier towards the end. It has been good to hear thought-provoking contributions on what the committee recommended.
The committee has focused on the process for dealing with infrastructure proposals. We want the process to be efficient so that proposals can proceed expeditiously with parliamentary involvement. The committee has said that the Parliament should consider not the nitty-gritty and issues that members do not have the time or expertise to consider in great detail but the overall outcome of the proposed projects.
The process that we are recommending should not exist in isolation, away from Parliament's ability to consider the cross-cutting aspects of the transport agenda or the overall feasibility of projects.
Does Richard Baker acknowledge that the proposals that private companies make using the private bills procedure do not necessarily rely on Executive funding? For example, the Edinburgh tramline 3 that Transport Initiatives Edinburgh proposed would have relied on funding from the congestion charge. Therefore, there is a clear need for a private process rather than for what Des McNulty suggested, which is that every proposal should come from the Executive.
Yes, but perhaps the points that we are making are not as much in conflict as Mark Ballard thinks. We need a private bill process for private initiatives. However, for projects with public backing, by the time the private bill committee is set up, the argument for the financial viability of the project should have been established. By maintaining parliamentary involvement at other stages of the process, we will ensure that Parliament not only has the final say but oversees constantly the viability of all the proposals.
We have not suggested merely streamlining the current process. We want the current process to work more effectively but, having been a member of a private bill committee, I would not be satisfied with just streamlining what we have. It was clear to us all on the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill Committee—and indeed to members of other private bill committees—that fundamental reform is required.
The committee heard from a number of people who had concerns about the flaws and inadequacies in the current process and the burden that it places on the Parliament's resources, to which many members, including Tricia Marwick, referred. In gathering evidence, we realised that to justify that burden we would have to find the best possible system. As members have pointed out, it is clear that the current system is not the best possible system. The inadequacies of the current private bills process have been highlighted because of the strides that we are making, particularly in developing new transport schemes that require private bill committees to be established.
The committee has identified changes that need to be made urgently, including having a clearer definition of what constitutes an interest that would preclude a member from sitting on a committee. That would be an important move towards ensuring that membership is not decided on a flimsy basis. We have also highlighted the need for flexibility in determining the number of members who sit on a committee, the notice that is required for environmental bodies—the committee agreed on that section of the report—and the need for improved rules for lodging late objections and handling a change of promoter. More flexibility will achieve extra clarity, so that the process can run more smoothly.
Of course, the committee recognised that more fundamental reform of the system is required and that merely amending the current procedures will not be sufficient. It is right that we review the procedures. We considered what has been done in Westminster, which has amended its process through the Transport and Works Act 1992. However, in recommending the TWA-plus model—or whatever we might call it—we sought to retain greater parliamentary involvement, for the reasons that Mark Ballard highlighted.
The fact that private bill committees have gone out to communities in which transport projects will be undertaken is good, but that does not represent better parliamentary scrutiny than the model that we are proposing, which would involve an independent reporter who would bring the expertise that is required, which Jamie McGrigor highlighted, and the potential for greater local consideration and further public inquiries, which Bruce McFee talked about. The committee heard the case for having more in-depth local consideration, which is why it made proposals to change the system substantially. We look forward to the Executive's response.
Of course, we are not wedded to the proposals that we have made and have listened to the concerns that members have expressed about cross-cutting agendas and the need to consider outcomes rather than the process, which is what we must consider first and foremost. Obviously, we hope that the Executive will take on board the points that have been made today when it comes up with its response.
Whatever happens, the committee is of the clear opinion that the status quo is not an option and that the process that we have recommended can provide informed, thorough and local consideration, while maintaining a key role for Parliament in the decision-making process. I hope that that will enable the scrutiny and reflection on the overall transport agenda that other members have talked about this afternoon.
I commend the motion to Parliament.