Rural Economy and Connectivity Committee

Meeting date: Wednesday, May 10, 2017

Official Report 530KB pdf

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Seat Belts on School Transport (Scotland) Bill: Stage 1

Item 2 is the Seat Belts on School Transport (Scotland) Bill. Last week, the Minister for Transport and the Islands sent correspondence to the committee detailing a technical issue regarding seat belts on school transport. This morning we will receive an update on that issue.

I welcome Gillian Martin, who is the member in charge of the bill; Humza Yousaf, who is the Minister for Transport and the Islands; Brendan Rooney, who is a road safety policy officer; and Anne Cairns, who is a legal adviser to the Scottish Government. Minister, I ask you to make a short statement, please, on the correspondence that you sent to the committee.

Good morning, convener. Your emphasis has been noted. First, I put on record my appreciation for the diligent work that the Rural Economy and Connectivity Committee has undertaken on the bill. You will be aware that the Scottish Government supports the legislative measures that Ms Martin has brought before the Parliament.

We of course consider road safety to be an issue of utmost importance, particularly when considering children and young people. I have been following stage 1 consideration and the evidence sessions, and it is heartening to see the support around the committee table and across the chamber.

You will be aware that last week I wrote to inform committee members that the Scottish Government has taken the view that the provisions in the bill should now be notified to the European Commission. Such notification is of course done by the United Kingdom Government, as the European Union member state, on behalf of the Scottish Government, rather than something that Ms Martin would do as the member in charge of the bill.

We are conscious that that administrative process will have an impact on timetabling, and we will look to engage with the committee on that. However, subject to your agreement, I contend that the timescale that was set out in my letter seems a sensible way forward. Notifying after stage 2 consideration appears to have the least bearing on the committee’s work plan, and it also mitigates the situation whereby there is a need to notify again because significant amendments are accepted.

Previously, the Scottish Government had taken the legal view that notification was not necessary. Such matters are of course always kept under consideration and under review as legislation passes through the process. The predominant reason for a change was consideration of the ruling of the Court of Justice of the European Union on the municipality of Palmela case in February. That considerably lowered the threshold for notification, and not notifying could risk the bill being unenforceable.

Thank you for the opportunity to make an opening statement. I welcome any questions.

Thank you, minister. I will start off. Are you aware of the law in Wales requiring seat belts to be fitted on school transport?

Yes.

Can you confirm when that bill was passed?

I have that in writing, and I will double-check for you. That measure on school bus safety was in 2010.

I think it was 2011, but I will go with your figure.

Perhaps it got royal assent in 2011, or that might have been the year of commencement.

Gillian, did you scrutinise that measure when you introduced your bill?

The Welsh bill went much wider than the bill that I have introduced. There were quite a lot of recommendations in that bill about things other than seat belts: it also covered closed-circuit television and bus monitors. The compelling thing was that the type and size of vehicles used were specified. That had quite a large bearing on it.

It is important to mention that nothing came back from the European Commission when Wales made that submission to it—sorry; keep me right with my terminology here—

Notification.

Yes, notification. Sorry—I forgot the word just for a second. Nothing came back from the European Commission when the notification was put in. We considered the Welsh aspect, in that there was a precedent for seat belts. However, we were not going down the route of implementing all the other measures, which was one reason why notification was not considered to be necessary.

It was quite clear from considering the measure in Wales that the Welsh had worked out very early on in the process that notification of the European Commission would be needed regarding seat belts. I am totally confused. What made the Scottish Government and indeed you, Ms Martin, as the member in charge of the bill, believe that it would not have to go to the European Commission? I am sorry, but I am confused by your answer. I am not clear why you thought that that would not be the case.

As you will know, when a member pursues a member’s bill, they take their advice from the Scottish Government legal department. It might be a good idea to ask Anne Cairns to explain why the Government did not deem it necessary at that point for us to get that European—I have forgotten the word.

It appears that the minister wants to jump in with some advice on that.

I, too, will defer to Anne Cairns from the Scottish Government legal department. I will also correct myself on the record. The Welsh Government’s notification of the bill was in 2010, but you are right, convener, that the bill was indeed passed in 2011.

Just to add weight to what the member in charge has said, it would be wrong to think of the Welsh bill simply as a seat belts bill. There were other things in it. It contained provisions for the description of vehicles, provisions for the recording of visual images or sound—CCTV—provisions for driver training, and provisions for safety risk assessments of learner transport. The directive examines whether the other requirements on the product, in this case a bus—seat belts, CCTV and everything else that I have mentioned—would significantly influence the composition or nature of the product or its marketing.

I will let Anne Cairns come in after this, but the Scottish Government’s legal department did not deem that Ms Martin’s bill would significantly alter the composition of the product—again, a bus—whereas the Welsh bill was much wider in scope, as it went much wider than just seat belts. It would be incorrect to assume that it was just about seat belts; it was also about the other things that I have mentioned, and indeed there were some things in that bill that I have not mentioned. Therefore, the Welsh chose to notify, whereas, given the narrow, single-issue scope of Ms Martin’s bill, the SGLD did not feel that the Scottish Government needed to notify. The game changer, or the predominant reason why that changed, was the municipality of Palmela case in February this year.

The rulings of the Court of Justice of the European Union come out, and they often have an effect on proposed legislation that is going through the legislative process. That is why the matter was kept under review. Perhaps Anne Cairns wishes to come in to expand on that, in case I have—

Before Anne Cairns comes in, Rhoda Grant wishes to ask a question, and it might be appropriate to bring Anne in after that.

I am slightly confused. When we were taking evidence on the bill, one of the things that we considered was whether the UK Government was going to implement the EU directive on bus safety. That would have superseded the need for the bill. It seems that Europe has already issued a directive on the issue, suggesting that seat belts should be on buses. Now you are saying that we have to go back to Europe and check that what we are doing is okay. It seems very circular to me. Surely, if Europe is saying that we should be doing this, it does not need to sign off the fact that we are actually doing it.

To answer Rhoda Grant’s question, there are two separate directives. The directive that we were talking about on 26 April is the seat belts directive, which is about the safety equipment that is fitted on vehicles. We are now talking about the technical standards directive, which is more related to the principle of the free movement of goods in the Common Market.

Essentially, if someone is going to impose technical specifications that might have an impact on the free movement of goods across the EU, they are supposed to notify the European Commission. We are talking about two completely separate issues.

I just want to check a couple of things. I have got the court decision in front of me, and it is clear that the decision about technical standards in relation to a play park in Palmela was referred by a Portuguese court to the EC. The specific thing that seems to be important is that the court has changed the game in its decision by broadening the reach to include technical standards. My key question is this: if we do not refer the issue to Europe, are the 18 Scottish councils that have contracts that essentially already require what we are going to require all other councils to do at risk of the European Union taking action against them because technical standards permission was not given and the rules have changed?

I note that Palmela was fined €10,000 and €100 in costs, and although that would not be devastating, it is still a financial implication. I seek confirmation that there would be a wider advantage in protecting the 18 councils if we refer the bill to Europe with a significantly tighter interpretation of the 1983 regulations.

We will go straight to Anne Cairns on that, because it sounds like a legal question and I am not sure that Gillian Martin will want to answer it.

On the risk to the 18 councils, the answer would be no. The technical standards directive means that a member state that is proposing a new legislative measure that might introduce a new technical regulation as it is defined in the directive has to notify the EC. The Palmela judgment will not have an impact on our councils because our measure is only at the notifiable stage at the moment. It is just a draft.

I just want to go back on that before the minister comes in again. I am a little bit confused by that answer. You say that the measure is a draft, but surely the councils have written it into their contracts as a requirement. Are they therefore in breach of the law? Yes or no?

The answer to that would be no, because the technical standards directive is not about contracts; it is about Government legislative measures and the laws of the land, as it were. It can be wider than that, but it is not about private contracts.

It would be fair to say—and we can seek clarification from Anne Cairns, although I suspect that members will know this—that local authorities probably also engage their own legal directorates and departments, as well as, potentially, the Convention of Scottish Local Authorities, to look at such issues.

I will take a slightly different angle, if I may. In a sense, the need for the bill is reducing because more and more authorities are gradually taking part anyway. We had 18 taking part originally, and Strathclyde partnership for transport gave a commitment that all the Strathclyde authorities will comply this year. We are now talking about a further three-month delay in the bill because of the directive. Do we really still need to go ahead with the bill?

When we proposed the original timescale for the bill, it would have been passed by the end of the year. We had discussions with the committee members and clerks about the committee’s work programme, and there was an agreement that we would bring the bill process forward so that we could get the bill through earlier and so that the committee could have time to scrutinise it before your work programme became quite onerous.

I suppose that you could call it a delay, but I would like to think of it as the bill going back to its original timetable. Humza Yousaf is right that, if we get it through to stage 2 without any difficulty, before stage 3 there will be a break when we get the notification organised. I do not think that there will be any issues with the notification itself, and it is important to mention that we are erring on the side of caution. That is the advice we have been given. It is prudent for us to take the notification forward because of the Palmela ruling so that we do not get into difficulty later.

09:45  

Given that the bill does not include technical specifications and parameters, I fail to understand the link between the bill and the EU directive that is causing a hold-up in its progress through the Parliament. Are you frustrated that positive progress seems to have stalled as a result of onerous or unhelpful EU directives?

Let us deal with the first point, on the technicalities. Will Anne Cairns or the minister pick up on that?

Technical regulations are notifiable to the Commission, and there are basically three limbs to the test for what is a technical regulation. Jamie Greene is right to say that one of those is technical specifications; the second is about “other requirements” and the third is about prohibition of use. The bill falls within the “other requirements” category.

Okay. I bring in Gillian Martin on the delay.

I want the bill to be watertight, and if notifying the EC means that it will be watertight, I am not frustrated. I want the bill to go through the proper channels. I am glad, not frustrated, that the issue has been flagged up quite soon after the Palmela ruling, so that we can ensure that issues do not arise later.

It is interesting that we are talking about frustration. I have been trying to get witnesses to give us up-to-date information on the number of councils that are moving towards having seat belt provision in their contractual arrangements rather waiting for a legal basis for action. In answer to points that I made at our previous meeting, the Scottish Government has said again that 18 local authorities stipulate seat belt provision in all their contracts and a further six have the stipulation in some contracts, but that is the information that we had three months ago.

When the committee heard from council officials, we got the impression that all councils are moving towards making seat belt provision a contractual requirement. Given that the bill’s provisions will not take effect for secondary schools until 2021, my simple question is this: have we got enough information on how many councils are about to put the stipulation in their contractual arrangements? To me, that is fundamental to whether we need legislation. What is the point of passing a law if everyone is doing it anyway?

Ms Martin will pick up on the substance of your question, as we are talking about her bill, but I will make a couple of points. I will look again at the information that we have from councils and ensure that you get the most up-to-date information, Mr Rumbles. I do not know whether the local authority elections have had any bearing on the matter—possibly not—but in the aftermath of the elections we can go back to the 32 local authorities and see whether there has been any change.

Although councils are doing it now, it is important to future proof. There can be changes of Administration, cost-cutting exercises or whatever—there might be 101 reasons for a council reneging on the approach and choosing not to put the requirement in a contract when it had been there previously, although I think that that would be a deeply unpopular move. That is why legislation can be important. I suppose that that takes us back to Mr Mason’s point. Whether 18, 20, 25 or all 32 councils are doing it, do we have a guarantee that that is future proofed? No. The bill gives that guarantee, I hope.

As I said to the committee previously, I want all children who go to school in Scotland to enjoy the same safety standards that my children do in Aberdeenshire. That is why I introduced the bill. We cannot leave it to the timetables of individual councils; I want the measure to go forward.

People are talking about a delay, but the commencement of the bill’s provisions was always going to be in 2018, and a three-month delay in taking the bill to stage 3 will not have much of an impact on that.

Can I ask a follow-up question, convener?

Yes.

The commencement date is 2018 for primary schools but it is 2021 for secondary schools, is it not?

Yes.

That is four years away. I imagine that you must be proud of the fact that your bill has initiated action by all 32 councils—if all 32 councils are taking action. I would think that that is a good thing to have done. However, I would question whether we need the legislation if all the councils are already taking such action. What you have done so far is admirable, and we are all supportive of the bill’s thrust, but what is the point in spending time on creating legislation if all councils are going to do what it requires anyway? I agree with the minister that it would be ridiculous for councils to backtrack on their contracts.

There is no guarantee that every local authority will take action if it is not put into law.

I do not think that there are any further questions. It is laudable that you are keen on ensuring that the process is 100 per cent correct, Gillian. The committee was somewhat surprised to see that the bill was being referred back when a belt-and-braces approach would have suggested that it should have gone straight to the European Commission at the outset. Nevertheless, the committee will consider the evidence that it has heard today and we will get back to you and the minister on whether we have decided to take the bill forward or to wait for the decision from the Commission.

I thank you for giving evidence to the committee and suspend the meeting as we take a moment to change witnesses.

09:51 Meeting suspended.  

10:06 On resuming—