Local Government and Transport Committee, 24 Oct 2006

Meeting date: Tuesday, October 24, 2006

Official Report 391KB pdf

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Provision of Rail Passenger Services (Scotland) Bill

The next agenda item, consideration of the Provision of Rail Passenger Services (Scotland) Bill, will take us a little bit longer to deal with. It is a member's bill and was introduced by Tommy Sheridan on 29 September.

Members have before them a paper that was commissioned by me relating to the bill, and I ask them to consider the paper with respect to our approach to the bill. In my comments and in my recommendation, I do not intend to make any judgment about the merits or otherwise of the bill's policy intentions; they relate more to its legislative competence. It is in that light that I make the following comments.

On 28 September, the Presiding Officer stated that the Rail Passenger Services (Scotland) Bill was

"not within the competence of the Scottish Parliament."

The committee may decide to take evidence on the bill and submit a stage 1 report in the usual way. However, members might consider that it would not be advisable to proceed with a bill the provisions of which, in the view of the Presiding Officer, are not within the competence of the Parliament. I do not, at this stage, intend to make any comment as to whether its provisions ought to be within the competence of the Parliament; I wish simply to give my own assessment on the current position.

Standing orders allow a committee to recommend to the Parliament, on a motion of the convener, that it does not agree to the general principles of a bill in cases in which the bill appears to be outwith the competence of the Parliament and it is unlikely to be possible to amend it to bring it within the Parliament's competence. On behalf of the committee, I have sought further advice on the issue from the Parliament's legal office and the Scottish Parliament information centre. That advice is annexed to the paper in my name.

In that paper, I set out the following comments:

"In my view, it would not be advisable for the Committee to proceed to consider the Bill at Stage 1 in the normal way, because

• it appears to be outwith the legislative competence of the Parliament;

• it appears to be unlikely that it can be brought back within legislative competence; and

• if the Judicial Committee were to decide that the Bill was not competent, then the Presiding Officer could not submit the Bill for Royal Assent."

I therefore recommend in the paper:

"(a) that the Committee recommends to the Parliament that the general principles of the Bill not be agreed to on the grounds that, in the opinion of the Committee, having regard to the terms of the Presiding Officer's statement on legislative competence under Rule 9.3.1, the Bill appears to be clearly outwith the legislative competence of the Parliament and it is unlikely to be possible to amend it at Stages 2 and 3 to bring it within legislative competence; and

(b) that the Committee agrees that I should lodge the appropriate motion under Rule 9.14.18."

I seek the committee's agreement to that recommendation. I invite members' views.

As you would expect, I will oppose your recommendation. The position that the committee finds itself in is very serious. I think that this will be the first time ever that a committee takes such a decision, and a decision of such uniqueness should be taken with as much information to hand as possible. I do not think that rule 9.3.1 is satisfied at all. To satisfy the standing orders, the committee must be convinced, under rule 9.14.18, that the bill is

"clearly outwith the legislative competence of the Parliament".

At half past 12 this afternoon, I met the director of legal services. We had a debate revolving around the major devolving of powers that was delivered via the Railways Act 2005, which conferred on Scottish ministers a huge number of new powers relating to railways in Scotland.

During a debate on the matter in December 2004, Pete Wishart of the Scottish National Party said:

"I have been keen to intervene to congratulate the Secretary of State in overseeing the biggest devolution of power since the Scotland Act 1998 was passed. It confirms the view of devolution as a process, not an event."—[Official Report, House of Commons, 6 December 2004; Vol 428, c 928.]

In February 2005, the Earl of Mar and Kellie—I am sure that David McLetchie will be able to confirm whether he is a Conservative—said:

"The Bill brings welcome constitutional change. The devolution of most railway activity in Scotland is the first major modification to Schedule 5 to the Scotland Act 1998. I am very pleased about that".—[Official Report, House of Lords, 10 February 2005; Vol 669, c 937.]

The discussion in the Scottish Parliament focused on the fact that the transfer of powers that was involved represented the single biggest conferral of reserved powers from Westminster to Scottish ministers. The legal argument revolves around whether those new powers have been conferred on Scottish ministers without Parliament having the ability to instruct them how to use those powers or whether Scottish ministers have the right to use those powers in whatever way they see fit. In the discussion between Thompsons Solicitors, who are acting on my behalf, the National Union of Rail, Maritime and Transport Workers—which is adamant that the bill is competent—and the director of legal services, it was clear that a grey area exists and that the question is not black and white. Accountability for the new ministerial powers could involve no more than people having the ability to ask questions and seek answers on how those powers are used—such matters could be discussed. The other view is that the Parliament has the right to instruct ministers how to use their powers.

Earlier today, I asked the minister about the new budget and the new powers. I asked him who he was accountable to for spending the new budget; he answered that he was accountable to the Parliament. If ministers are accountable to the Parliament for the use of the new powers, a logical and legal argument is that we should be able to instruct them legislatively how to use those powers.

Bristow Muldoon is right to leave aside the argument about whether people would support a not-for-profit railway. Today, we are arguing about whether we have the right to attempt to instruct ministers to use their powers so that the profit element is removed from the delivery of railway services in Scotland. An important constitutional question is involved. If huge new devolved powers have been conferred on Scottish ministers but we cannot instruct them how to use those powers, questions are raised about the strength of parliamentary democracy as far as the Scottish Parliament is concerned.

I ask members to reject the convener's recommendation in order to allow the bill to be properly discussed, evaluated and scrutinised. If it is considered by the Parliament and overcomes all the parliamentary hurdles, there can then be an important judicial argument over whether powers of such a nature and magnitude could be conferred on Scottish ministers without the Parliament having the ability to instruct them legislatively how to use those powers. At the moment, the committee is not armed with the necessary material to allow it to conclude that the standing orders clearly state that the bill is outwith the Parliament's legislative competence. The committee is in no position to reach such a conclusion. Therefore, I ask it to recommend that the bill be scrutinised in the normal way.

Tommy Sheridan says that the issue is not as black and white as the Parliament's legal advisers would have us believe, but he bases that view on a conversation that he had this afternoon with someone who said that it might or might not be a grey area. We have received legal advice that says in black and white that, in view of the Parliament's devolved powers, the bill is not legally competent.

Tommy Sheridan has also said that Thompsons Solicitors and the RMT disagree with our legal advice and believe that the bill is competent. What we need to decide, therefore, is whether we go ahead, have the various discussions, go through the various political processes and then take the matter to judicial review to find out whether we can implement something that we might not agree on or whether we get Thompsons Solicitors and the RMT to mount the challenge at the outset, prove that the bill is legally competent and then have the debate in the knowledge that we are not wasting our time. As it stands, the only black-and-white evidence that we have on the matter is that the bill is not competent. If the RMT and Thompsons Solicitors can prove otherwise, it is incumbent on them—not us—to do so. The convener has sought, and we have received, legal advice on the matter. In the absence of any other legal advice, we have to accept the conclusion that the bill is not competent.

Obviously, it will not come as a crashing surprise to members that I state for the record the SNP's position that Scotland should have the full range of powers to take whatever action is necessary in its own interests.

However, the question is whether the time of the Parliament and, in particular, this parliamentary committee should be taken up with considering a bill that the Presiding Officer has ruled—and which the convener has indicated in his paper—is outwith the Parliament's legislative competence. Although I wish that all such matters were within the Parliament's competence, we need to ask whether, under the current rules, this particular ruling is correct. I am not an expert, but it appears that the ruling is correct. If the member had realistically expected us to take account of material related to a conversation that he had earlier today with the director of legal services, he should have ensured that members were furnished with a statement, preferably a letter, from that person. Plainly, there have been a lot of opportunities to get and provide the committee with such material. As those opportunities have not been taken and as we do not have that material, we cannot really consider it. Of course it is open to the member to pursue these matters in his debating time in the chamber, in the same way that the SNP frequently uses its own time to debate reserved matters.

If the bill were to be considered, it would use up a huge amount of time, which would prevent us from carrying out work on other issues within our powers. Although the SNP has the highest ambitions for Scotland, we cannot simply wave a magic wand and disapply the standing orders, rules and procedures within which the Parliament has to operate. If those rules are flouted or ignored, the Parliament cannot proceed in an orderly way.

In any case, having read the various papers that have been circulated, I think that the proposal is completely unworkable, untenable and unrealistic. The idea that a company will submit a tender, secure in the knowledge that all the effort that it goes to and all the money that it spends—which can sometimes amount to £500,000 or £1 million—will result in its automatic rejection, is quite frankly risible.

I will not allow anyone to say that the SNP is ducking the issue. It would simply be absurd to support any debate of such a proposal, which, in common with the vast majority of the policies of the party that the member currently represents, is unworkable and unrealistic. For those reasons, I support the convener's ruling on this matter.

Convener, I commend you for your approach to this matter and for seeking the advice that has been set out in the papers before us. I should also commend Tommy Sheridan and his advisers for working their way through the undergrowth of the Scotland Act 1998 to achieve their objective and bring to the Parliament's attention a substantive policy issue in which they fervently believe—and in which I certainly do not believe.

The advice that we have been given is quite clear. We are not in the business of setting up some kind of constitutional showdown over the question whether the bill is competent to be determined by the courts at some future date. Michael McMahon and Fergus Ewing have made perfectly valid points about the time that the process would involve.

Given that the advice that we have received suggests that the bill is not competent and does not fall within the Parliament's current powers, if Tommy Sheridan, the RMT and others who support it think otherwise, the appropriate course of action for them would be to seek a judicial declaration from the courts in Scotland to that effect. If they were to obtain such a declaration, we could consider the bill's substance.

However, there has been no such ruling and, in light of all the advice that we have received, I believe that we cannot proceed with the bill. Moreover, we are only six months away from dissolution. Given the time constraints that the Parliament is facing with regard to the consideration of bills, I simply do not believe that we have enough time to consider this proposal. As a result, I support the convener's recommendation.

I welcome members' support for the position that I have outlined in the paper. I respect Tommy Sheridan's position, although the guidance that I have received suggests that it is not the right one.

On certain points that Tommy Sheridan made about the additional powers given to Scottish ministers under the Railways Act 2005, I should say that although powers can be conferred on Scottish ministers under the devolution settlement, that does not mean that the Parliament is also given the power to legislate on them. On certain occasions, ministers might operate on behalf of the Crown—in other words, the UK Government—in undertaking certain duties and performing certain functions that remain within the UK Parliament's legislative competence.

Of course, ministers are accountable to Parliament in a number of ways for their performance of functions that are devolved to them but which are not within their legislative competence. For example, members can ask parliamentary questions about or have parliamentary debates on how ministers exercise those powers. Ultimately, motions of no confidence can be moved if ministers do not use their powers appropriately.

In my opening remarks, I made no judgment on the merits of the bill's aims or on whether the Scottish Parliament should have these powers. On the basis of the advice that I—and, indeed, the Presiding Officer—have received, my judgment is that the bill is not within the competence of the Scottish Parliament.

The question is, that the committee makes to Parliament a recommendation under rule 9.14.18 that the general principles of the Provision of Rail Passenger Services (Scotland) Bill not be agreed to. Are members agreed?

No.

There will be a division.

For

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Watt, Ms Maureen, (North East Scotland) (SNP)

Against

Sheridan, Tommy (Glasgow) (Sol)

The result of the division is: For 5, Against 1, Abstentions 0. The recommendation is therefore agreed to.