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Minister for Transport
Tavish Scott MSP
Mr Bristow Muldoon MSP
Convener
Local Government & Transport Committee
The Scottish Parliament
Edinburgh
EH99 1SP / Victoria Quay
Edinburgh EH6 6QQ
Telephone: 0845 774 1741


1 December 2006

Dear Bristow

Transport and Works (Scotland) Bill – Stage 1 Report

As I mentioned at the Stage 1 debate I am grateful to the members of your committee for the constructive tone of the report and its endorsement of the Bill. You rightly highlighted forthe Parliament that there are a number of areas where greater exploration is necessary and I am sure that these matters will be raised during our Stage 2 discussions. I thought, however, that it might be of benefit if I set out my thinking in respect of the recommendations that the committee makes within the report. To that end I have provided a response,where required, to your recommendations as well as those recommendations made in the report’s annexes by the Bill’s secondary committees.

The intention is to validate the applicant’s statement of fact (which summarises the consultation engagement) by seeking confirmation from consultees to the statements made.

At its most simple validation may be undertaken by performing spot-checks. It should be noted that a promoter will be required under secondary legislation (see rule 11 in the draft Applications and Objections Procedure Rules) to serve a copy of the application, which includes the report of fact, on a number of persons. If any of these persons identifies a misrepresentation in the report of fact there will be an opportunity to raise the matter both with the promoter and the Scottish Ministers. Significant discrepancies, of course, may stimulate objections which clearly will not be beneficial to the promoter. By ensuring that the consultation takes place properly, process benefits will naturally accrue to the promoter. I should state also that the Executive will be producing good practice guidance to assist promoters.

As part of the Executive’s consideration of the promoter’s report of fact consultees may be asked, amongst a range of matters, for an expression of views on the appropriateness of the published information provided. It is important that such a review is conducted by the Executive as part of its approach of ensuring that the process and all matters associated with the process are subject to continuous improvement. The good practice guidance, which itself will be subject to consultation, should be instrumental in highlighting potential concerns for promoters.

I can confirm that SEIRU will have the necessary resources to perform its additional function. In respect of cost – recovery for the examination the Executive has yet to come to a final view. As my officials explained to the Finance Committee our guiding principle is that the level of fee should be such that there is no cost to the public purse, however, as my officials explained:

“We are giving careful consideration to whether the same level of fee for an application should apply to private developers, public developers and charitable concerns. We do not want to create a fee system that is bureaucratically all-consuming; the system should be fairly straightforward.

We do not want to set a fee level that will act as a disincentive for people to come forward, nor do we want the fee level to encourage proposals that have not been well thought through. We have not agreed a figure, but we expect to go out to consultation on the matter next summer, after which we will reflect accordingly.” (Finance Committee col.3875).

The matter therefore will be addressed fully next year. I have already given a commitment to the committee that, notwithstanding considerations next year, fees in respect of orders promoted by heritage railways will not be greater than they are currently.

As stated in the Policy Memorandum (see paragraph 60 of that document) the Scottish Ministers will be expected to make a decision within 12 weeks of receipt of all information. Since Ministers are obligated to make their decision public it is appropriate that the reporter’s report, for contextual purposes, is made available at that time. The Executive does not believe that there is anything to be gained by setting an arbitrary 2 month date; the aspiration, of course, is that decisions are made quickly and it is to be hoped that all decisions are made well before the 12 week target date.

It is perhaps also worth mentioning that the annual report (see section 20 of the Bill) will also prove informative in determining the efficiency of the process as well as providing a synopsis of decisions.

All decisions to reject, make or make with modification an order will have to be comprehensively and publicly explained. By publishing the decision notice together with a copy of the reporter’s report readers will be able to understand better the considerations and any cross-references.

Ministerial decisions rightly should be subject to Parliamentary scrutiny and this currently occurs; Ministers can be, and often are, called by Parliament and individual committees to provide justification and explanation for their actions and decisions. I see no reason that this need change. I note that this matter has been referred to the Procedures committee (paragraph 151) and I, like you, await with interest its consideration.

As you are aware the National Planning Framework will be published in 2008, and therefore Ministers will be making a statement to Parliament next year on the considerations that they will take into account in deciding whether a particular development should be designated as a national development within the framework.

My own perspective on this matter is that any definitional criteria ought to be clear and straightforward. I do not believe, for instance, that it would be helpful to designate a project for inclusion solely on the basis of size, whether that is measured by cost or land take, since it is conceivable that a small relatively low-cost project may actually be nationally significant. I am more interested in definitions that capture those developments that, for instance, improve Scotland’s connectivity with the rest of the world (such as a major container transhipment facility), deliver strategic improvements to internal considerations (such as new trunk roads or railways), cut across city region boundaries or are essential and major (in terms of costs) elements of a national programme of investment in infrastructure.

On that basis I think it highly likely, for instance, that the Aberdeen Western Peripheral road and the recent railway bills would have featured in an NPF as developments of national significance.

The Habitats Directive (Directive 92/43/EEC, Conservation of Natural Habitats and of Wild Fauna and Flora) has been transposed into UK law through the Conservation (Natural Habitats, &c.) Regulations 1994 (known commonly as the Habitats Regulations). We have always been aware that we would have to amend these Regulations so as to require that an appropriate assessment is carried out to assess the implications of works authorised by an order under section 1 of the Bill on a designated European site. As the amendments required are to secondary legislation, we do not intend to deal with them in the Bill but will use either the general amending powers provided by the Bill (section 27(7), as read in this case with section 27(6)(b)) or the power conferred by section 2(2) of the European Communities Act 1972.

The Habitats Directive has already been implemented in relation to harbour orders by the 1994 Habitat Regulations and section 48A of the Harbours Act 1964 (inserted by the Transport and Works Act 1992) which also applies to Scotland. We do, however, intend to further amend the 1964 Act in order to implement the Public Participation Directive on environmental impact assessments (either in the Bill itself or by a section 2(2) order).

Annexe A

Report of the Finance Committee

I note the Finance committee’s intention to consider, together with the Minister for Finance and Public Service, how its recommendations regarding scrutiny of large capital projects can be taken forward. The issue the committee raises is broader than transport projects, however I welcome contributing to its consideration, if that should prove of assistance.

Report of the Procedures Committee

I note the comments in respect of the level of Parliamentary oversight of the processes within the Bill. I note also the comments, at paragraph 18 of the report that the Local Government and Transport committee is “…not persuaded that there is an additional need for Parliamentary scrutiny, within the provisions of the Bill, of those projects which are not of national significance.” Those sentiments chime with my own views which I have set out to the committees and reiterated within the Stage 1 debate (col 29525). My position has always been that there are a number of existing avenues for Parliamentary scrutiny and that these applied appropriately should provide Parliament with the confidence that it seeks in ensuring that processes are operating appropriately. I therefore endorse your committee’s observation.

Report of the Subordinate Legislation Committee

I can confirm that where previously indicated I will lodge at Stage 2 appropriate amendments to address the matters raised by the committee within paragraphs 12, 14, 34, 36, 37, 38, 41, 43, 46, 47, 49 and 52 to address the concerns of the committee.

In respect of the paragraphs 21-23 – power to amend provisions in a private Transport Act without being subject to any Parliamentary procedure – I can confirm that I am reflecting on the issues but am not yet at a stage at which I have reached a conclusion.

On the issue raised within paragraphs 30-31 – rules regarding the content of the delegated powers memorandum – I note the intention to pursue a change to the Standing Order of the Scottish Parliament.

I trust that my response has proved genuinely helpful. I understand that the Stage 2 debate is set to commence on 12 December. I shall ensure therefore that the Executive’s amendments will be lodged well in advance so as to aid the committee’s consideration.

I am copying this letter to the Conveners of the Procedures, Finance and Subordinate Legislation Committees for their respective interests.

Your sincerely

TAVISH SCOTT