Removal of the application of special Parliamentary procedure to transport related projects
Summary of responses to the consultation exercise:
Transport Legislation - Review of special Parliamentary procedure provisions
1. The Scottish Executive's Transport Strategy Division carried out a consultation exercise on proposals to dispense with the application of special Parliamentary procedure to transport related projects. A wide range of organisations (see Annex A) with an interest in the special Parliamentary procedure (SPP) were issued the consultation paper. Those organisations included all Local Authorities, relevant Government Agencies, all harbour authorities and a range of other bodies/persons in both the public and private sectors that are known to have an interest in SPP.
2. The consultation paper  was issued on the 6 March 2006 and invited views by the 14 April 2006. Due to the technical nature of the consultation (which proposed amendments to the Harbours Act 1964, the Roads (Scotland) Act 1984 and the Pilotage Act 1987) and its limited interest to the general public, it was decided that a shorter period of 6 weeks would be sufficient to garner views.
3. A total of 16 responses were received. Overall, respondents were supportive of the proposals to dispense with SPP. A number of concerns or issues for clarification were raised and these are summarised later in the paper.
4. The Scottish Executive is grateful to all those who responded to the proposals within the consultation paper. The intention is to analyse the comments and then to bring forward specific proposals within a forthcoming Bill. The responses must be read with the consultation paper.
5. In line with the Scottish Executive's policy of openness, copies of the responses received are made publicly available on the Scottish Executive consultation website and at the Scottish Executive Library, K Spur, Saughton House, Broomhouse Drive, Edinburgh EH11 3XD.
6. Copies of responses can be viewed by visiting the consultation website, by visiting the library or can also be provided by post. Charges for photocopies are made on a cost-recovery basis. To request copies by post and enquire about charges or make an appointment to view responses at the library, contact the Library on 0131 244 4552.
7. A summary of the main comments to the consultation is set out below. The summary follows the sequence in which comments were invited in the consultation paper in respect of the impact on various Acts. The summary does not relate directly to the questions posed within the consultation paper since some respondents were more discursive in their responses.
Harbours Act 1964
There was general support expressed for the proposal to dispense with SPP, though a number of issues of detail were raised.
Whilst it was noted that the proposal to permit Ministerial determination would bring certain advantages compared with the existing parliamentary process concern was expressed about possible delay and complications caused by inquiry-based system with subsequent Ministerial determination. It was suggested that consideration should be given to a timetable within which Ministerial decisions should be made. It was commented on that there was a need to have some mechanism in place to deal with politically-difficult decisions, so that they could not be easily deferred.
There was also a concern raised that, following the detailed examination at an inquiry, the Scottish Ministers would be able to make an alternative determination to that recommended by an inquiry reporter. It was proposed that SPP ought to be retained in such circumstances where the Scottish Ministers disagree with the recommendations of the inquiry reporter.
It was also suggested that any inquiry should be accessible, where appropriate, to the public and subject to official scrutiny and that the Scottish Ministers should be required to justify their reasoning and decisions in all cases. There was also a concern raised about the implications and ramifications of there being no apparent right or means of appealing decisions made by Scottish Ministers.
Roads (Scotland) Act 1984
There was general support for the proposals.
Concerns were expressed that in being promoters of road projects the Scottish Ministers will have an interest and will thus, after the inquiry has been held, be determining the outcome by judging their own cases. The impartiality of the decision maker in such circumstances was therefore left to question. Another respondent commented that the Scottish Ministers should have proper regard to the findings of any inquiry reporter and to follow the findings in the absence of any other material considerations.
It was suggested by a respondent that SPP ought to be retained in order to address matters where the Scottish Ministers disagree with the recommendations of the inquiry.
Concern was expressed about the potential for additional costs in relation to inquiries/hearings in the new procedures for road authorities, compared to the current system of SPP and another respondent commented on the possible financial implications for Local Authorities under the new arrangements.
Pilotage Act 1987
The proposed changes were broadly welcomed by respondents.
There was some concern about changes to the way applications are publicised. It was advised by a respondent that the current method of notifying persons likely to be affected works well with those who are not near the port or are infrequent users being notified and that reliance on public notices may not provide an effective mechanism of notifying all stakeholders.
Concern was expressed that by changing the method of notifying interested parties in conjunction with an undertaking to investigate any objections the potential delay in the making of pilotage orders would increase. A contrary view noted that a 42 day period for the raising of objections would be a satisfactory compromise on the basis that it makes the decision making process swifter, while maximising public involvement and the opportunity to deal with objections.
A respondent emphasised the need for any changes to be promulgated in a simple, diligent and brisk manner.
There was concern expressed that by changing the right to an inquiry to a right to an inquiry or hearing or to address the matter via correspondence there is an implication that an objector would lose their right to an inquiry. It was suggested that hearings are a less robust way of resolving issues. A comment was also received that if an objector lost their right to an inquiry or that procedures were used against their will, there is the potential for the decision and the legislation to be subject to legal challenge.
A respondent noted that SPP requires a higher standard of detail and specification than would be expected under an inquiry because SPP seeks to address matters regarding national and strategic importance. It was also mentioned that the effectiveness of SPP is that it encourages promoters of an order to reach agreement with objectors before an application for SPP is made, in short the potential of using SPP encourages resolution.
There was also a suggestion that the reporters would need additional training if there were unresolved objections containing a subject matter other than that which relates to planning law .
Number of Responses
Annex A contains details of those that were issued with the consultation paper and Annex B contains details of those that responded.  http://www.scotland.gov.uk/Publications/2006/03/SPP