Bankruptcy and Diligence etc (Scotland) Bill

Bill Number: SP Bill 50
Introduced on: 21 November 2005
Introduced by: Alan Wilson (Executive Bill)
Passed: 30 November 2006
Royal Assent: 15 January 2007

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Passage of the Bill

The Bankruptcy and Diligence etc. (Scotland) Bill was introduced on 21 November 2005. The Enterprise and Culture Committee, as the lead committee, began taking Stage 1 oral evidence on 6 December 2005. The Committee published its Stage 1 report on 17 May 2006 with the Stage 1 debate taking place on 24 May 2006. The Committee considered amendments to the Bill at Stage 2 meetings between 13 June and 7 November 2006. The Bill was passed following the Stage 3 debate on 30 November 2006.

Purpose and objectives of the Bill

The Bill aims to:

• modernise the laws of personal bankruptcy and diligence to strike a better balance between the rights of creditors and debtors
• support business risk, thereby helping to promote an entrepreneurial culture and grow the economy
• modernise the law of floating charges to remove existing uncertainties and make arrangements more transparent.

Provisions of the Bill

The Bill changes the law on bankruptcy by:

• reducing the period of bankruptcy from three years to one year
• introducing Bankruptcy Restrictions Orders and Undertakings on potentially fraudulent or culpable debtors
• requiring debtors to contribute towards their sequestration, where possible, by introducing income payment orders and agreements
• reforming the requirements for "apparent insolvency"
• reforming restrictions and disqualifications on debtors
• increasing transparency in and monitoring of Protected Trust Deeds
• streamlining the bankruptcy process and reducing court involvement
• taking bankruptcy proceedings out of the Court of Session and consolidating them in the sheriff courts

The Bill makes provision for a new Register of Floating Charges to be maintained by the Keeper of the Registers of Scotland and establishes a Scottish Civil Enforcement Commission to operate as the sole regulatory body where all matters relating to enforcement are determined and overseen. The Bill also reforms the main types of diligence, the legal term for the procedures by which orders of the civil courts are enforced.

Parliamentary consideration

The Finance Committee welcomed the reduction in the period of bankruptcy but despite calls for the period of repayment to be similarly reduced the Committee supported the Bill proposals that debtors be subject to a longer period for the repayment of debts.

The Finance Committee was concerned that bankruptcy proceedings should not cause homelessness and recommended that the debtor’s main home should be excluded from the scope of proposals for land attachment. This was not accepted but the Bill was amended at Stage 3 to raise the minimum debt from £1,500 to £3,000 before a creditor can institute bankruptcy proceedings. A proposal to set the minimum at £5,000 was defeated.

Amendments were lodged at Stage 2 to give a prior claim to credit unions when distributing the assets of debtors who have entered into a protected trust deed. These were withdrawn or not moved on assurances from the Minister that he would consider the concerns expressed. The Bill was amended to allow Scottish Ministers to make regulations on the extent to which a debtor may be discharged, by virtue of a protected trust deed, from his liabilities or from such liabilities or class of liabilities as may be prescribed in the regulations.

The Bill as introduced proposed that the terms “messengers at arms” and “sheriff officers” be replaced with “messenger of court” but this was not popular with the profession. The Bill was amended at Stage 2 to replace “messenger of court” with “judicial officer”.

Concerns were raised by witnesses during Stage 1 that a debtor may be subject to an earnings arrestment and an arrestment of their bank account at the same time. There was also concern at the lack of protection from arrestment of tax credits and social security benefits paid into bank accounts. Amendments were lodged by the Minister at Stage 2 to allow a debtor to apply for an order to stop an arrestment in respect of all or some of the funds attached if the arrestment is ‘unduly harsh’. If a debtor applies for such an order, automatic release of funds is stopped. The new sections grant the sheriff the power to make an order for the release of those funds attached, where they consider the arrestment to be unduly harsh. The amendments were agreed to at Stage 2. The Minister also stated in evidence at Stage 2 that he would be happy to have further discussions with the banking sector about whether technology could simplify the process of protecting funds.

The Minister lodged an amendment at Stage 2 to introduce a new section to the Debtors (Scotland) Act 1987 to prevent debtors who receive holiday pay in advance having larger proportions of their earnings deducted. The amendment changes the Bill to treat holiday pay as a separate payment or payments made for the pay period or periods during which the debtor is on holiday and not as if it were an increase added to the normal pay. The amendment was agreed to at Stage 2.

The Debt Arrangement and Attachment (Scotland) Act 2002 introduced the debt advice and information package. The Bill as introduced made provision for debtors to be provided with information about enforcement as well as contact details of free local money advisers before diligences for land attachment or residual attachment are competent. However there was concern at the time lapse which can occur between issuing the package and implementing a charge to pay. Amendments were lodged which provide that the package must be served within 12 weeks of either the registration of a notice of land attachment or an application to the court for a residual attachment order. The amendments were agreed to at Stage 3.

Planning etc. (Scotland) Bill

Bill Number: SP Bill 51
Introduced on: 19 December 2005
Introduced by: Malcolm Chisholm (Executive Bill)
Passed: 16 November 2006
Royal Assent: 20 December 2006

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Passage of the Bill

The Planning etc. (Scotland) Bill [SP Bill 51] was introduced in the Parliament on 19 December 2005.  The Communities Committee was appointed as lead Committee with the Local Government and Transport Committee as a secondary committee.  The Communities Committee published its Stage 1 Report on 10 May 2006.  This was debated by Parliament on 17 May 2006.  The general principles of the Bill were agreed by a vote in which 98 members voted for the Bill, 11 against and two abstained. The Committee then commenced Stage 2 of the Bill, which ran from 14 June 2006 until 4 October 2006. 

Purpose and objectives of the Bill

The main aim of the Bill was to streamline the operation of the Scottish planning system. It aimed to do this by creating a ‘hierarchy of developments’, allowing planning authority resources to be targeted where they were needed to ensure planning applications were dealt with as quickly as possible. The Bill also aimed to increase the involvement of local communities in the drafting of development plans and in decisions on planning applications. The Bill also intended to ensure that development plans were kept up to date and that compliance with planning legislation was improved through amendments to the enforcement system.

Key Provisions of the Bill

National Planning Framework: The National Planning Framework (NPF) is currently a non-statutory, Scotland-wide planning policy document first published by the Executive in 2004. The Bill would put the NPF on a statutory footing and subject it to a process of parliamentary scrutiny prior to its adoption. The next National Planning Framework (NPF2) is to be published in 2008. The Bill requires NPF2 to identify “…developments of national significance”, decisions on which would normally be made by Scottish Ministers. No objections to developments of national significance would be allowed, on the basis that a development is not needed, once it was included in the NPF.

Strategic Development Plans: The Bill removed the requirement on planning authorities to produce structure plans and replaced this with a new requirement on authorities in the four main city regions, formed into Strategic Development Planning Authorities (SDPA), to produce strategic development plans. The Bill places each SDPA under a statutory duty to update its strategic development plan at least once every five years. SDPAs are required to publish, and update, a development plan scheme which outlines its programme for preparing and reviewing the strategic development plan. Each strategic development plan must be accompanied by an action programme, which must be updated at least once every two years

Local Development Plans: The Bill also removed the requirement on planning authorities to produce local plans and replaced this with a requirement to produce local development plans. The Bill placed each planning authority under a statutory duty to update its local development plan(s) at least once every five years. In addition, planning authorities are required to publish, and update, a development plan scheme which outlines its programme for preparing and reviewing local development plans. Each local development plan must be accompanied by an action programme that must be updated at least once every two years.

Development Management: The Bill introduced a three tier ‘hierarchy of development’, i.e. national, major and local developments. Responsibility for notifying neighbours about proposed developments is passed from applicants to planning authorities.

The Bill established a formal system of pre-determination hearings, allowing applicants, objectors and supporters of certain types of development to appear in person before a planning authority prior to it making decisions on whether to grant planning permission. The Bill also required each planning authority to set up a formal scheme of delegated decision making, giving planning officers formal authority to make decisions on local developments. Decisions made under such a scheme would be open to review, under a scheme to be established by secondary legislation, as opposed to an appeal to Scottish Ministers.

The Bill reduced the normal duration of planning permission from five to three years and replaced the system of outline planning permission with a new category of ‘planning permission in principle’.

The Bill also replaced planning agreements with an expanded system of ‘planning obligations’, allowed developers to register unilateral planning obligations and allowed for the creation of ‘good neighbour agreements’ between developers and certain community organisations.

Enforcement: The Bill introduced a new temporary stop notice. It also required all planning authorities to publish, and keep under review, ‘Enforcement Charters’. In addition developers are required to notify the planning authority when they start and finish a development.

The Bill also updated the system for the designation and management of Tree Preservation Orders, allowed for the formation of Business Improvement Districts and established a statutory basis for National Scenic Areas.

Parliamentary consideration

Throughout the parliamentary consideration of the Bill there were two major issues, although not included in the Bill as introduced, that were the focus of much debate. These were the introduction of a ‘third party right of appeal’ against planning decisions and a requirement to hold a full public inquiry into the National Planning Framework prior to its adoption. These issues were strongly supported by some opposition members and environmental/community NGOs but opposed by the Executive, some opposition members and business NGOs. Amendments to introduce these measures were lodged at Stage 2 and Stage 3 but were rejected by the Communities Committee and the Parliament as a whole.

Amendments, which had not formed part of the original Bill proposals, were agreed at Stage 2. The principal being those amendments allowing the issue of a fixed penalty notice where an enforcement notice or breach of condition notice had been issued and not complied with, and those amendments related to the designation and management of National Scenic Areas.

Local Electoral Administration and Registration Services (Scotland) Bill

Bill Number: SP Bill 52
Introduced on: 19 December 2005
Introduced by: Tom McCabe (Executive Bill)
Passed: 22 June 2006
Royal Assent: 1 August 2006

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Passage of the Bill

The Local Electoral Administration and Registration Services (Scotland) Bill [SP Bill 52] was introduced in the Parliament on 19 December 2005. Stage 1 Oral Evidence commenced on 17 January 2006, with the Local Government and Transport Committee as the lead committee. The Stage 1 debate took place on 4 May 2006 and the Bill was passed following the Stage 3 debate on 22 June 2006.

Purpose and objectives of the Bill

The objectives of the Bill are: to make provision in relation to the administration and conduct of local government elections; to reorganise local registration services; to amend the law in relation to the registration of births and deaths and the procedure in relation to marriages and civil partnerships; to provide for the recording of certain events occurring outwith Scotland in relation to persons who have a Scottish connection; to make available certain information and records held by the Registrar General; and for connected purposes.

There are 2 parts to the Bill. The first part includes provisions for electoral administration relating solely to local government elections in Scotland. The administration of Scottish Parliamentary elections is reserved to the UK Parliament but the administration of local government elections in Scotland is a devolved matter.

The UK Electoral Administration Act 2006 will implement changes in respect of all statutory elections, including local government elections across the UK, in certain reserved areas, such as voter registration and the regulation of political parties, as a result of a number of Electoral Commission reviews and recommendations. The UK Act also contains provisions for local government elections in England and Wales. The Bill largely follows the approach taken by the UK Electoral Administration Act in order to ensure uniformity in electoral procedures, such as measures to improve access to the electoral process and to improve the security of postal voting.

The second part of the Bill provides for registration services of “vital events”, i.e. births, marriages and deaths, in Scotland. These provisions are the result of two consultation exercises carried out by the General Register Office for Scotland. The Bill provides for a number of reforms to registration services, including allowing the registration of births and deaths anywhere in Scotland, bringing registration district boundaries into line with local authority boundaries, allowing more flexible registration office opening times, allowing for e-registration and establishing a “Book of Scottish Connections”.

Provisions of the Bill

Part 1 of the Bill deals with local electoral administration in relation to the following issues. The Bill enables Scottish Ministers to set and publish performance standards for returning officers at local government elections, and to direct reporting officers to submit reports on their performance against these standards. It provides electoral administrators with a power to correct errors or admissions that may arise during the preparation for and conduct of local government elections. Sections 4 to 6 of the Bill provide for issues relating to access to election documents. It also details provisions in relation to observers. Sections 10 to 13 deal with offences related to voting and false information. Sections 14 to 17 aim to clarify legislation on election expenses and to bring procedures on election expenses for local government elections into line with those used for other elections. Part 1 also contains provisions for piloting the collection and use of personal identifiers to offer safeguards against postal voting abuse. Miscellaneous provisions are dealt with in sections 20 to 26.

Part 2 of the Bill deals with registration services, which refers to the process via which births, deaths and marriages are registered in Scotland. The General Register Office of Scotland administers registration services in partnership with local authorities. This part of the Bill provides for the re-organisation of local registration services districts to be made coterminous with local authority boundaries. It also provides for the registration of births, re-registration of births, still births and deaths to be carried out at any registration office in Scotland, or on-line. The Bill also provides for the establishment of a new public record termed the ‘Book of Scottish Connections’, which will be used to record events relating to persons outwith Scotland.

Parliamentary consideration

Throughout the Parliamentary process, the Bill has been largely uncontroversial, with overall agreement on its general principles. At Stage 1, the Local Government and Transport Committee supported the proposals in the Bill, stating that it contained appropriate measures for improving electoral administration and modernising registration services. Some recommendations for further improvements to the Bill and requests for additional information or clarification were put forward. One of the main points raised by the Committee was whether the setting of performance standards should be subject to Parliamentary scrutiny and the Stage 1 report suggested this issue could be returned to at Stage 2. Amendments were put forward in this regard, but were not moved, leaving responsibility for setting performance standards with Ministers. An amendment was agreed to which gave ministers powers to direct returning officers to provide information on expenditure at local government elections. Amendments were also agreed at Stage 2 to replicate changes to the UK Bill to allow the collection and use of personal identifiers for absent voting at local government elections in Scotland without the requirement to carry out a pilot. The Bill, as amended, was generally welcomed at Stage 3 and was passed on 22 June 2006.

Budget (Scotland) (No 3) Bill

Bill Number: SP Bill 53
Introduced on: 19 January 2006
Introduced by: Tom McCabe (Budget Bill)
Passed: 9 February 2006
Royal Assent: 21 March 2006

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Passage of the Bill

The Budget (Scotland) (No 3) Bill [SP Bill 53] was introduced on 19 January 2006. The Stage 1 debate took place on 26 January 2006. The Finance Committee considered the Bill at Stage 2 on 31 January 2006 and the Bill was passed by the Parliament on 9 February 2006.

Purpose and objectives of the Bill

The passage of the Bill is the final stage in the annual budget process and gives parliamentary authority for spending in Scotland for financial year 2006-07. The budget process is intended to allow the Parliament’s subject committees the opportunity to comment on the Executive’s spending plans at several points during the year prior to the annual budget being agreed. The expectation is that the subject committees should have an active role in scrutinising and making recommendations on spending priorities.

Provisions of the Bill

The Bill will authorise over £25.46bn of cash expenditure by the Scottish Executive and its associated bodies, other organisations whose core funding is centrally provided (e.g. local authorities and health boards), the Forestry Commissioners, the Food Standards Agency, the Scottish Parliamentary Corporate Body and Audit Scotland.

For more details of the Scottish Budget process see the summary for the Budget (Scotland) Bill [SP Bill 16].

Glasgow Airport Rail Link Bill

Bill Number: SP Bill 54
Introduced on: 31 January 2006
Introduced by: Strathclyde Passenger Transport Executive (Strathclyde Partnership for Transport) (Private Bill)
Passed: 29 November 2006
Royal Assent: 15 January 2007

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Passage of the Bill

The Glasgow Airport Rail Link Bill [SP Bill 54] was introduced in the Parliament on 31 January 2006. The 60 day period for objections ended on 3 April 2006, with 47 admissible objections lodged. The Glasgow Airport Rail Link Bill Committee was established and met for the first time on 14 March 2006. The Committee published its Preliminary Stage Report on 8 June 2006. The Parliament then debated the Bill at Preliminary Stage on 21 June 2006 and agreed (by a majority) the general principles of the Bill and that the Bill should proceed as a Private Bill. The Parliament also passed the Financial Resolution on the Bill.

Purpose and objectives of the Bill

The Bill authorises the construction of a double track electrified railway, approximately two kilometres long, from a point east of Paisley St James Station to a new station at Glasgow Airport. The Bill also authorises the upgrade and expansion of approximately nine miles of existing railway between Paisley St James Station and Glasgow Central Station. It also allows for works related to the construction and operation of the railway.

Provisions of the Bill

The Bill grants the promoter, and their successors, the powers to build the railway line as well as authorising the construction of other works associated with it. To this end the promoter is granted a power of compulsory purchase and the power to stop-up roads and footpaths where necessary.

Parliamentary consideration

While the Glasgow Airport Rail Link Bill Committee supported the progress of the Bill from the Preliminary to Consideration stage they concluded that the business case for the scheme would be substantially improved if the Glasgow Crossrail scheme, which would link rail services from the north and east of Scotland with those from the south-west, were also constructed. In addition

Brian Monteith MSP, a member of the Committee, dissented from those parts of the Report which stated that the “The Committee supports the general principles of the Bill” and that “the Committee recommends to the Parliament that the general principles of the Bill be agreed to”.

Much of the evidence during the Consideration Stage of the Bill was heard by an independent assessor, Professor Hugh Begg. This was the first time an assessor had been used during the consideration of a Private Bill. No major amendments were made to the Bill at this Stage, although minor amendments were agreed and commitments given by the promoters to secure the upgrade of St James’ football pitches in Paisley and to reduce the hours during which construction of the line could be undertaken. The Committee also asked that the promoter investigate whether the hours of operation of the line could be extended to meet early/late flights.

Concerns were also raised during the Consideration Stage about the possible impact the proposed Edinburgh Airport Rail Link might have on passenger numbers, and therefore the economic viability, of the Glasgow scheme The Transport Minister made several statements in oral and written evidence to emphasise that the impact of the Edinburgh project on the Glasgow scheme would be minimal.

Criminal Proceedings etc (Reform) (Scotland) Bill

Bill Number: SP Bill 55
Introduced on: 27 February 2006
Introduced by: Cathy Jamieson (Executive Bill)
Passed: 18 January 2007
Royal Assent: 22 February 2007

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Passage of the Bill

The Criminal Proceedings etc (Reform) (Scotland) Bill [SP Bill 55] was introduced in the Parliament on 27 February 2006. The Justice 1 Committee, as lead committee, commenced taking Stage 1 oral evidence on the general principles of the Bill at its meeting on 19 April 2006. The Stage 1 debate took place on 14 September 2006 and the Bill was passed following the Stage 3 debate on 18 January 2007.

Purpose and objectives of the Bill

The Scottish Executive established an independent Summary Justice Review Committee, under the chairmanship of Sheriff Principal McInnes, in 2001. The Committee was asked to review the provision of summary justice in Scotland and to make recommendations aimed at more efficient and effective summary justice. Its report, ‘The Summary Justice Review Committee: Report to Ministers’, was published in 2004. The Scottish Executive consulted on the report and, in 2005, published its plans for summary justice reform in ‘Smarter Justice, Safer Communities: Summary Justice Reform – Next Steps’. The Bill was intended to take forward those plans requiring legislation.

In addition, the Bill was intended to take forward Scottish Executive commitments to reform the law on bail set out in ‘Bail and Remand: The Scottish Executive Action Plan’ (2005). The proposals in the Action Plan were informed by the work of the independent Sentencing Commission for Scotland, which published its ‘Report on the Use of Bail and Remand’ earlier in 2005.

Provisions of the Bill

The Bill as introduced included provisions:

• changing the system of bail and remand
• changing the law on criminal proceedings (mainly in relation to summary court procedure)
• increasing the sentencing powers of summary criminal courts
• expanding the range of alternatives to prosecution
• changing the way in which fines can be collected and enforced
• establishing justice of the peace courts in place of district courts
• changing the way in which justices of the peace (JPs) are appointed and trained
• placing the Inspectorate of Prosecution in Scotland on a statutory footing

Parliamentary consideration

The general principles of the Bill were broadly supported by the Justice 1 Committee, and by most witnesses, as necessary and proportionate to achieve the goal of improving the effectiveness and efficiency of the summary justice system and the system of bail and remand. Accordingly, the committee recommended to the Parliament, in its Stage 1 Report, that the general principles of the Bill be agreed to. The Parliament went on to agree those principles following the Stage 1 debate.

However, a number of amendments agreed at Stage 2 reflected concerns or recommendations expressed by the Justice 1 Committee in its Stage 1 Report. These included:

• changes to the provisions on bail, in response to the committee’s suggestion that there should be explicit reference to ‘public safety’ as one of the factors to be taken into account by a court considering bail
• changes to the provisions dealing with fiscal fines, introducing a further ground for recall where acceptance of a fiscal fine has been deemed under the ‘opt-out approach’ introduced in the Bill
• in response to concerns about the appointment of JPs with limited court experience, changes to the provisions dealing with the appointment of JPs so that only those placed on the court rota during the 12 months prior to the new appointments system coming into force will be eligible for automatic appointment to deal with cases under the new system

Further information on the Parliament’s consideration of the Bill during Stages 1 and 2 of its passage is set out in the SPICe briefing 07/01 ‘Criminal Proceedings etc (Reform) (Scotland) Bill: Parliamentary Consideration Prior to Stage 3’ (2007).

Amendments agreed to during Stage 3 also included a number in response to issues raised by Members during earlier consideration. These included:

• changes to provisions on the liberation of an accused on an undertaking, so as to provide that the imposition of any special conditions must be authorised by a police officer of the rank of inspector or above
• changes to provisions on fiscal fines, to limit the maximum to £300 rather than the £500 set out in the Bill as introduced

Proposed amendments not agreed to at Stage 3 included a number of non-Executive amendments aimed at bringing the Bill’s provisions on trial in absence for summary criminal cases more into line with those currently applying in relation to solemn cases. Although some Members still had concerns about various aspects of the Bill, it was passed without the need for a division following the Stage 3 debate.

Legal Profession and Legal Aid (Scotland) Bill

Bill Number: SP Bill 56
Introduced on: 1 March 2006
Introduced by: Cathy Jamieson (Executive Bill)
Passed: 14 December 2006
Royal Assent: 19 January 2007

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Passage of the Bill

The Legal Profession and Legal Aid (Scotland) Bill [SP Bill 56] was introduced in the Parliament on 1 March 2006. Stage 1 commenced on 14 March 2006 with the Justice 2 Committee designated the lead committee. The Stage 1 debate (on the general principles of the Bill) took place on 7 September 2006 and the Bill was passed following the Stage 3 parliamentary debate on 14 December 2006.

Purpose and objectives of the Bill

The Bill has two main purposes: first, it seeks to reform the system for handling complaints against lawyers by the creation of a new statutory body called the Scottish Legal Complaints Commission and, secondly, it seeks to improve the delivery of all forms of publicly funded legal assistance.

Provisions of the Bill

The key provisions of the Bill are as follows:

• a new Scottish Legal Complaints Commission will be established. This will be led by a Board with a non-lawyer majority and a non-lawyer chair, to receive complaints about lawyers which cannot be resolved at source (but with an emphasis on complaints being resolved at source where possible)
• responsibility for dealing with complaints about lawyers will be split between the new Commission and the professional bodies of the legal profession (i.e. the Law Society of Scotland and the Faculty of Advocates) as follows:
  • responsibility for handling complaints about ‘inadequate professional services’ will rest with the new Commission, taking over from the aforementioned professional bodies, the Scottish Legal Services Ombudsman and the Scottish Solicitors Discipline Tribunal
  • responsibility for professional discipline will remain with the professional bodies and the relevant discipline tribunals (i.e. the
  • Scottish Solicitors Discipline Tribunal and the internal discipline tribunal of the Faculty of Advocates)
• the office of the Scottish Legal Services Ombudsman will be abolished as a result of the creation of the Commission
• the maximum amount of compensation that can be awarded will be raised from the current level of £5,000 to £20,000 where a complaint about ‘inadequate professional services’ is upheld, in order that the Commission will be able to handle moderate-value negligence claims
• first steps will be taken towards giving rights of audience and rights to conduct litigation to member of professional bodies other than the Law Society of Scotland or the Faculty of Advocates
• responsibility will be transferred from the courts to the Scottish Legal Aid Board for granting and determining legal aid in serious criminal cases
• the Scottish Legal Aid Board will be able to fund certain advisors other than solicitors to provide ‘Advice and Assistance’ (a type of public funding available in relation to both criminal and civil matters which makes it possible to obtain initial advice on any matter of Scots law)

Parliamentary consideration

A key issue throughout the parliamentary passage of the Bill was whether it was compliant with the European Convention on Human Rights. In this regard, concerns were focused on two aspects of the Bill: first, the composition of the new Commission and the extent of its independence from the Scottish Executive and secondly, the absence of an external right of appeal from a decision of the Commission. To address the first area of concern, a range of Executive amendments were agreed to at Stage 2 covering matters including the process for removing members of the Commission and their security of tenure.

In relation to the second area of concern, non-Executive amendments, supported by the Executive, were agreed to at Stage 3 which created a limited right of appeal to the Court of Session against decisions of the Commission.

Another important issue which arose during the passage of the Bill was whether it was appropriate that only complaints about services provided by practitioners should be considered by the new Commission, whilst responsibility for complaints about professional conduct remains with the professional bodies. Non-Executive amendments were moved at both Stages 2 and 3 which would have abolished this distinction making the new Commission responsible for dealing with all complaints against practitioners but these were not agreed to.

Another area of concern during the Bill’s passage was the increase in the maximum compensation level from £5,000 to £20,000. Non-Executive amendments were lodged at Stages 2 and 3 which would have resulted in a lower maximum being set but these were not agreed to.

Finally, the circumstances in which the two levies (the annual levy and the complaints levy), which will fund the new Commission, will be payable were given careful consideration during the Bill’s passage.

In the Bill as introduced the complaints levy was payable by all practitioners against whom an eligible complaint had been made. However, at Stage 2 an Executive amendment was agreed to so that the Bill as passed provides that the complaints levy will be paid by a practitioner only where: 1) the outcome of mediation is accepted by the parties; 2) an informal settlement is accepted by parties; or 3) a complaint is upheld on a formal determination by the Commission. This change substantially reflects a key recommendation of the Justice 2 Committee in its Stage 1 report.

Crofting Reform etc. Bill

Bill Number: SP Bill 57
Introduced on: 2 March 2006
Introduced by: Ross Finnie (Executive Bill)
Passed: 25 January 2007
Royal Assent: 1 March 2007

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Passage of the Bill

The Crofting Reform etc. Bill [SP Bill 57] was introduced in the Parliament on 2 March 2006. Stage 1 commenced on 19 April 2006 with the Environment and Rural Development Committee as the lead committee. The Stage 1 debate took place on 27 September 2006 and the Bill was passed following the Stage 3 parliamentary debate on 25 January 2007.

Purpose and objectives of the Bill

The Bill is the final piece of legislation in the Scottish Executive’s land reform programme intended to modernise and reform Scottish land law. Large parts of crofting law remain as it was when introduced at the end of the nineteenth century. The objectives of the Bill are to simplify crofting legislation and the administration of crofting, to allow new crofts to be created, to allow crofters to undertake a wider range of activities on their crofts, and to modernise crofting legislation to take account of changes such as the increasing interest in renewable energy development in crofting areas.

Provisions of the Bill

The Bill will allow new crofts to be created within the crofting counties, and in other parts of Scotland in areas designated in an order made by Ministers. Statutory small landholders in these areas will be able to turn their holdings into crofts. Crofters will be able to use their crofts for “purposeful uses” other than grazing livestock or forestry. Crofters will also be able to use common grazing land for wider purposes. The role of the Crofters Commission in deciding on regulatory applications from crofters will change. It will only decide on assignations, divisions, and sublets of crofts where there is an objection to the proposal or where certain conditions apply. Landowners will be able to resume land from crofting tenure temporarily, instead of permanently as at present. Resumed land which is not used will revert to crofting tenure. Landowners or developers will be able to apply to the Land Court for a development scheme, e.g. for a wind farm development. The Land Court will decide if crofters would be fairly compensated before approving a scheme.

Since the enactment of the Land Reform (Scotland) Act 2003, part 3 of which gives crofting communities an absolute right to buy their croft land, there has been evidence that landowners have been leasing certain rights e.g. rights to develop renewable energy, to intermediary companies, and so exclude these rights from the right to buy. To prevent this, the Bill will allow crofting communities to buy any leases which exist over crofting land, as well as the land itself.

Parliamentary consideration

Certain aspects of the Bill proved to be controversial during Parliamentary consideration. The main concern among crofters was that the buoyant housing market in the Highlands and Islands has led to the growth of a market in crofts, which in some communities is pricing local crofters out of the market and is allowing the best crofting land to be developed for housing. There was a feeling that the Crofters Commission was not using its powers to dampen down the market in crofts. This was felt by many to be threatening the future of crofting as a protected system of agricultural land tenure. The Executive brought forward proposals to regulate owner-occupied crofts, but these were rejected by the Environment Committee in its Stage 1 report. The Stage 1 report was critical of many aspects of the Bill, suggesting that some proposals should be dropped altogether, and ultimately the Committee was not able to make a recommendation on the general principles of the Bill to Parliament. In its response, the Executive agreed to remove sections of the Bill during stage 2, and also to establish a Committee of Inquiry on crofting to undertake a wide ranging review of the regulation of crofting tenure and the future of the Crofters Commission.

During stage 2 the Executive tabled amendments to remove the sections of the Bill which would have changed the status of the Crofters Commission, and those which referred to the market value of a croft. The proposals on owner occupiers were never tabled. A small number of technical amendments were made to the Bill during stage 3.

In December 2006 the Executive appointed Professor Mark Shucksmith to chair the Committee of Inquiry, and the Committee is expected to conclude its work by the end of 2007.

Edinburgh Airport Rail Link Bill

Bill Number: SP Bill 58
Introduced on: 16 March 2006
Introduced by: TIE Limited (Private Bill)
Passed: 14 March 2007
Royal Assent: 19 April 2007

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Passage of the Bill

The Edinburgh Airport Rail Link Bill [SP Bill 58] is a Private Bill and, as such, is subject to different Parliamentary procedures. The Bill was introduced in the Parliament on 16 March 2006. The Edinburgh Airport Rail Link Bill Committee first met on Tuesday 18 April 2006.  The 60 day period objection period concluded on 15 May 2006 and 48 admissible objections were lodged against the Bill. The Committee published its Preliminary Stage report on the Edinburgh Airport Rail Link Bill on 15 September 2006. The Parliament then debated the Bill at Preliminary Stage on 21 September 2006. The Parliament also passed the Financial Resolution on the Bill.

Phase one of Consideration Stage also began on 21 September 2006 and concluded on 13 February 2007 with the publication of the Committee’s Consideration Stage report, Appropriate Assessment report on the Firth of Forth Special protection Area and Report on the Edinburgh Airport Rail Link Bill and European Protected Species. Phase two of Consideration Stage was concluded on 27 February 2006 when the Committee considered and agreed 95 amendments to the Bill.

Purpose and objectives of the Bill

The powers sought by the Bill are to provide the promoter with statutory authority to construct a new station at Edinburgh Airport; and to link this new station by rail to the national rail network. The Bill also provides authority to undertake other works associated with the construction of the Edinburgh Airport Rail Link.

The policy objectives of the Bill are to:

• stimulate economic growth of the Edinburgh city region and Scotland as a whole by enhancing Scotland’s global, national, and regional competitiveness, connectivity and encouraging inward investment;
• assist in the delivery of social inclusion to Scottish towns and cities (including Aberdeen, Dunfermline, Kirkcaldy, Glenrothes, Dunblane, Dundee, Glasgow, Inverness, Perth, Falkirk and Stirling, as well as Edinburgh itself) by providing direct access to Edinburgh Airport;
• assist in the further growth of Scottish tourism and in making Scotland a thriving and year round tourist destination by providing direct rail access to the above towns and cities;
• offer a sustainable public transport alternative to accessing Edinburgh Airport that will be attractive to car and other vehicle users and thus reduce road congestion and environmental impacts;
• assist towards a sustainable basis for future growth at Edinburgh Airport as an integral part of Scotland’s transport infrastructure and economy and;
• facilitate a public transport interchange hub at Edinburgh Airport by providing interchange opportunities between air, rail, tram, bus and bicycle for both employment, leisure and other journeys.

Provisions of the Bill

Part 1 of the Bill gives powers relating to the works required to build the rail link. There are two types of works, those that are specifically described in the Bill, and those carried out under general powers. Part 2 of the Bill gives compulsory purchase powers.  Part 3 covers a number of miscellaneous subjects, whilst Part 4 gives some definitions and sets out the powers of Scottish Ministers.

Parliamentary consideration

In its Preliminary Stage Report, the Committee agreed the general principles of the Bill (by a majority) and that the Bill should proceed as a Private Bill. The Committee however also agreed to seek further evidence, at Consideration Stage should the Bill proceed, on a number of concerns in relation to the scheme including: funding, availability of suitable rolling stock, deliverability of and reliability of the operating timetable as well as the fares policy for the scheme. The Parliament then debated and agreed by a majority the general principles of the Bill and that the Bill should proceed as Private Bill.

In its phase one of Consideration Stage Report, the Committee did not uphold any of the outstanding objections although it sought further strengthening of the mitigation policy documents provided by the promoter. The Committee also indicated that it was content with the further evidence it received on the outstanding issues it had identified in its Preliminary Stage Report. At phase two of Consideration Stage the Committee considered and agreed 95 amendments to the Bill arising from its recommendations within its Consideration Stage Report.

Christmas Day and New Year’s Day (Trading) (Scotland) Bill

Bill Number: SP Bill 59
Introduced on: 20 March 2006
Introduced by: Karen Whitefield (Member’s Bill)
Passed: 7 March 2007
Royal Assent: 13 April 2007

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Passage of the Bill

The Christmas Day and New Year’s Day (Trading) (Scotland) Bill was introduced in the Parliament by Karen Whitefield MSP on 20 March 2006. Stage 1 began on 5 September 2006 with the Justice 2 Committee as the lead committee. The Committee’s Stage 1 report, published on 14 November 2006, recommended by majority, support of the general principles of the Bill. The Stage 1 debate took place on 22 November 2006 and the Parliament agreed to the general principles of the Bill. Stage 2 was completed on 16 January 2007. The Stage 3 debate took place on 7 March 2007 and the Bill was passed.

Purpose and objectives of the Bill

The objective of the Bill is to prohibit large retail shops from opening in order to engage in retail trading on Christmas Day and New Year’s Day. This is in response to what is considered could become a trend of larger shops trading on these days.

Provisions of the Bill

With the exception of a number of exempted categories the Bill would prohibit large shops (those with 280 square metres or more of relevant floorspace) from opening on both Christmas Day and New Year’s Day for the purpose of making retail sales.

Exemptions include cafes, pubs, takeaways, registered pharmacies, transport related shops (in ports, railways stations, airports, and motorway service stations) and petrol stations. The penalty for allowing a shop to trade would be a fine not exceeding £50,000.

Parliamentary consideration

The Public Petitions Committee discussed a petition on the same topic on 21 January 2004 and agreed by division to support its general principles and to write to the Executive seeking its views. The Executive reserved its position on the proposal.

Karen Whitefield, the Member in charge of the Bill, carried out a consultation on the draft Bill between November 2004 and February 2005.

The Bill was introduced in the Parliament on 20 March 2006. The Justice 2 Committee was nominated as the lead Committee and Stage 1 began on 5 September 2006.

The general principles of the Bill were supported by some witnesses such as the Union of Shop, Distributive and Allied Workers (USDAW), the Scottish Churches Parliamentary Office, the Humanist Society, and some retailers. A number of witnesses expressed concerns about the Bill, including the Scottish Retail Consortium, some retailers, VisitScotland and the interest group Deregulate. Most concerns were expressed in relation to the impact of the ban on New Year’s Day. However the Committee heard fewer objections to the proposals to prevent large shops from trading on Christmas Day.

The Scottish Executive took no formal position and stated it was still weighing up the merits of the arguments.

In its Stage 1 report the Committee noted the general lack of robust evidence in relation to the economic impact of the Bill. This included a lack of evidence on the impact of the Bill on the retail and tourism sectors and a lack of reliable data to estimate the numbers of employees that would be ‘caught’ by the Bill.

Although a number of those responding to the consultation and appearing as witnesses argued the case for treating the two days separately, the Committee acknowledged that an attempt to remove one of the days from the Bill could be viewed as a wrecking amendment.

By majority the Committee recommended that the general principles of the Bill be agreed to. Three Members dissented (Stewart Maxwell MSP, Jeremy Purvis MSP and David Davidson MSP). The Stage 1 parliamentary debate was held on 22 November 2006 and the general principles of the Bill were agreed to.

At Stage 2, on 16 January 2007, the Deputy Minister for Justice explained that the Executive had not reached a position on the Bill but lodged a number of amendments in order to allow a debate to take place. The amendments offered the Committee the opportunity to remove New Year’s Day from the Bill, or alternatively to give ministers the power to lay an order introducing a ban on trading on New Year’s Day (subject to the affirmative resolution procedure) at a later date, potentially with the requirement that a social and economic impact report be carried out. These amendments were all rejected by the Committee.

In the Stage 3 debate on 7 March 2007 the Parliament accepted a group of Executive amendments concerning the application of the bill to New Year’s Day. The Bill still banned Christmas Day trading, but conferred an order making power on Scottish Ministers to ban New Year’s Day trading at a later date. Such an order would only follow a consultation, a report on the economic impact and impact on family life and a statement of the Executive’s reasons for introducing the order. The Parliament agreed that the Bill be passed with 100 voting for, 17 against, and with two abstentions.

Tourist Boards (Scotland) Bill

Bill Number: SP Bill 60
Introduced on: 20 March 2006
Introduced by: Patricia Ferguson (Executive Bill)
Passed: 25 October 2006
Royal Assent: 30 November 2006

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Passage of the Bill

The Tourist Boards (Scotland) Bill (SP Bill 60) was introduced in the Parliament on 20 March 2006 by the Minister for Tourism, Culture and Sport. Stage 1 began on 28 March 2006 with the Enterprise and Culture Committee as the lead committee. The Stage 1 debate took place on 29 June 2006 and the Bill was passed, as introduced (without amendment), following the Stage 3 debate on 25 October 2006.

Purpose and objectives of the Bill

The Scottish Tourist Board was established by the Development of Tourism Act 1969. The Local Government (Scotland) Act 1994 required the establishment of area tourist boards. Fourteen such boards were created but these have been wound up and two new network area tourist boards created in their place. The Scottish Tourist Board and the network area tourist boards operate under the banner of VisitScotland. The Bill is intended to abolish the network area tourist boards, to rename the Scottish Tourist Board ‘VisitScotland’ and increase the number of Board members.

Provisions of the Bill

The Bill

• Changes the name of the Scottish Tourist Board
• Increases the limit on the number of appointed board members from six to eleven
• Removes the requirement that there be area tourist boards
• Makes consequential amendments to existing legislation

Parliamentary consideration

The Enterprise and Culture Committee recommended that Parliament agree the general principles of the Bill. At Stage 2 an amendment was lodged to retain the name “The Scottish Tourist Board” but this was disagreed to in Committee.

The Bill was passed without amendment with 96 for, 2 against and 15 abstentions.

Adoption and Children (Scotland) Bill

Bill Number: SP Bill 61
Introduced on: 27 March 2006
Introduced by: Peter Peacock (Executive Bill)
Passed: 7 December 2006
Royal Assent: 15 January 2007

2007 asp 4

Passage of the Bill

The Adoption and Children (Scotland) Bill [SP Bill 61] was introduced on 27 March 2006. Stage 1 commenced on 10 May with the Education Committee as the lead committee. The Stage 1 debate took place on 13 September 2006 and the Bill was passed following the Stage 3 Parliamentary debate on 7 December 2006.

Purpose and objectives of the Bill

According to the Policy Memorandum the objective of the Bill is “to improve, modernise and extend adoption in Scotland and to provide greater stability for children who cannot live with their original families”.

The Bill restates, with some amendments, many of the provisions contained in the Adoption (Scotland) Act 1978 (c 38) and introduces a number of new provisions. In particular the Bill:

• replaces existing freeing orders and parental responsibilities orders with a single court order called a permanence order. The aim of this order is to increase stability for children who cannot live with their original families but to be flexible enough to cater for the needs of individual children. A permanence order can be sought with or without a measure granting authority for the child to be adopted, dependent on the needs of a particular child. The latter case may be similar to long term fostering.
• allows joint adoption by unmarried couples (including same-sex couples). Currently, one person in an unmarried couple can adopt, while their partner may apply separately for an order under section 11 of the Children (Scotland) Act 1995 to gain parental responsibilities and parental rights.
• extends the adoption support services framework for people affected by adoption.
• includes a regulation-making power allowing the Scottish Ministers to set a national system of care allowances

Parliamentary Consideration

The Education Committee’s Stage 1 report was supportive of the general principles of the Bill. One issue where concerns were raised by some witnesses related to the proposal to extend joint adoption to unmarried couples. However, the Committee agreed in principle with the Executive’s proposals as outlined in the Bill. Many of the matters that were raised during Stage 1 were technical issues relating to the drafting of the Bill. Therefore, the Committee’s report included, in an annex, a list of drafting comments.

Some of the evidence received by the Committee was concerned about the lack of provisions in the Bill in relation to fostering issues. In evidence the Executive had argued that many issues relating to fostering could be dealt with through regulations and would be considered further in light of the forthcoming consultation on the national fostering strategy.

SPICe briefing 06/101 provides an overview of the main amendments made at Stage 2 and the key areas of debate. Many of the amendments passed were of a technical nature or related to the operation of permanence orders.

The Bill as introduced would have allowed Ministers to make regulations about fostering allowances. At Stage 2 an Executive amendment changed the reference in the Bill to “care allowances” and widened the range of circumstances in which carers would be eligible for an allowance. At Stage 3 eligibility for care allowances was widened to include to those carers who care for a child before the child has become formally looked after by the local authority and relieved the local authority of a duty that it would otherwise have had towards the child.

During Stage 2 an amendment was lodged by Michael McMahon MSP, which was later withdrawn, to the effect that faith based adoption agencies would be provided with a right to uphold their values when considering applications from prospective adopters. The Member lodged an amendment on the same issue at Stage 3 but it was narrowly defeated.

Paul Martin MSP lodged an amendment at Stage 2 that would have meant that prior to making an adoption order the court would have to be satisfied that consideration had been given to placing a child with a married couple. Although the amendment was not moved but at Stage 2, at Stage 3 Paul Martin returned with an amendment that changed the criterion for adopting couples from being in "an enduring family relationship" to "a stable family unit." The amendment was passed on a narrow vote.

At Stage 3 a proposed amendment by Roseanna Cunningham MSP which would have prevented joint adoption by same sex couples was defeated.

Other amendments passed at Stage 3 were largely of a technical nature or in relation to the operation of permanence orders, and in particular the interaction of the court with the Children’s Hearing System.

Adult Support and Protection (Scotland) Bill

Bill Number: SP Bill 62
Introduced on: 30 March 2006
Introduced by: Andy Kerr (Executive Bill)
Passed: 15 February 2007
Royal Assent: 21 March 2007

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Passage of the Bill

The Adult Support and Protection (Scotland) Bill [SP Bill 62] was introduced in the Parliament on 30 March 2006. Stage 1 commenced on 25 April 2006 with the Health Committee as the lead committee. The Stage 1 debate took place on 23 November 2006 and the Bill was passed following the Stage 3 parliamentary debate on 15 February 2007.

Purpose and objectives of the Bill

The Bill took forward recommendations of the Scottish Law Commission’s Report on Vulnerable Adults (Scot Law Com No 158, 1997), and those of the Social Work Services Inspectorate (now the Social Work Inspection Agency) and the Mental Welfare Commission following investigations into Scottish Borders Council. The Bill sought to protect and benefit adults at risk of being abused, by introducing investigative rights and duties as well as a range of post-assessment interventions. These measures were to be underpinned by the creation of local multi-disciplinary Adult Protection Committees to both oversee and coordinate the work of various agencies involved in abuse investigations and to develop prevention strategies.

In addition, the Bill sought to amend the Adults with Incapacity (Scotland) Act 2000 with the aim of simplifying and streamlining the protections for adults with incapacity whilst improving access to them. It also sought to make a number of amendments to the Social Work (Scotland) Act 1968 regarding the liable relatives rule, direct payments and ordinary residence. Finally, it sought to amend the Mental Health (Care and Treatment) (Scotland) Act 2003 to ensure that Mental Health Tribunal reviews take place every two years.

Provisions of the Bill

Part 1 of the Bill proposed new provisions for the protection of adults at risk of abuse. The Bill defined an adult at risk and what was to be considered as abuse. It placed a duty on local authorities to inquire if it believes an adult is at risk of abuse. It also placed a duty of cooperation on a number of bodies including the local NHS Board, to support the council with its inquiry or to inform the local authority of any adult it believes it is at risk of abuse. The Bill then provides local authorities with new powers to carry out assessments of the person and their circumstances; intervene to remove the adult or manage the risk of abuse; if necessary and in the last resort, to exclude the perpetrator; and, if necessary and in the last resort, to force entry to perform the above functions.

However, such interventions were to complement other interventions that did not require statute including informal mediation between victim and perpetrator to negotiate and agree future plans. The Bill also contained a principle to ensure that any intervention was essential for the welfare of the individual and the least restrictive possible.

Finally, Part 1 of the Bill proposed a duty on local authorities to establish a multi-agency Adult Protection Committee which would take a strategic overview in jointly managing adult protection policies, systems and procedures at a local level.

Part 2 of the Bill contained provisions to amend the Adults with Incapacity (Scotland) Act 2000. Following a two year consultancy, the work of the Parliament’s Justice 2 Committee and an Executive consultation, Part 2 aimed to address issues arising from the early days of implementation and ensure that the legislation was better able to meet its objectives by simplifying and streamlining the protections for adults with incapacity and improving access to them. Amendments were proposed in a number of areas including powers of attorney, authority to intromit with funds, intervention orders and guardianship orders.

Part 3 of the Bill sought a number of amendments and appeals to the Social Work (Scotland) Act 1968, namely amendments:

• to the provisions on ordinary residence to clarify and update the legislation determining which local authority is financially responsible for providing community care services especially when a person moves between local authority areas
• to repeal provisions regarding the liable relatives rule as it applies to charging for care home fees in Scotland
• to allow to allow Scottish Ministers to make provision for the delegation of functions to local authorities so that the local authorities can exercise flexibility in designing an individual’s direct payments care package. It was proposed that the new power would allow local authorities to determine whether exceptional circumstances exist which would justify using direct payments to employ a close relative in a particular case.

Finally, Part 3 of the Bill sought to make an amendment to the Mental Health and Treatment (Scotland) Act 2003 to ensure that Mental Health Tribunal reviews take place every two years, as was the original attention of the Act.

Parliamentary consideration

Following its stage 1 scrutiny of the Bill the Health Committee published its Stage 1 Report on 10 November 2006. The Committee had major concerns with Part 1 of the Bill contending that the provisions raised fundamental issues about the balance between the reach of the state in its duty to protect, as against the rights of the individual. On the one hand the Committee accepted that this part of the Bill contained specific provisions which could be genuinely useful and help to counter the abuse of vulnerable people, especially the elderly. However, on the other hand it considered that the provisions were very widely drawn, potentially encompassing every adult member of the population. It also noted that a number of the groups that the Bill intended to help, in particular disability groups, were opposed to it and had raised some serious issues in evidence before the Committee.

The Committee recommended the following changes to Part 1 of the Bill:

• that the definition of who is covered by Part 1 of the Bill be amended so that it is not so all-encompassing and discriminatory in terms of those with disabilities
• the term ‘abuse’ should be removed from the Bill and replaced with a less pejorative term so that it does not stigmatise and alienate those who have only been guilty of benign neglect, resulting in attempts to improve circumstances for the adult at risk being hindered
• the Bill should be amended so that it does not override rights established in other pieces of legislation, in particular the rights to advocacy and advanced statements contained in the Mental Health Act
• the same right to appeal that is proposed for banning orders should be extended to removal orders to reduce the risk of challenge under the European Convention of Human Rights
• the definition of the person who has the power to enter premises should be made more specific than ‘a council officer’
• the test which a Sheriff must apply before making a protection order against the wishes of the adult at risk should be tightened

The Committee welcomed the proposals in Part 2 of Bill, though did make one recommendation on an aspect of the amendments to the application to intromit with funds. It also supported the proposals in Part 3 of the Bill, though following evidence received did recommend that the Executive establish transitional arrangements under the ‘ordinary residence’ provisions of the Community Care and Health Act by order so that a recipient of a care package continues to receive that package whilst the relevant local authorities agree the financial aspects.

On 17 November 2006 the Deputy Minister for Health and Community Care, Lewis Macdonald MSP, responded to the recommendations of the Committee on Part 1 of the Bill. He made commitments on all the recommendations, apart from that concerning the right of appeal to a removal order. Such commitments were reiterated during the Stage 1 debate on 23 November 2006.

On 11 December the Deputy Minister for Health and Community Care sent a letter to the Committee regarding its recommendations on Parts 2 and 3, and explained his reasoning for not supporting these. He also advised the Committee of a large amendment at Stage 2 which would seek to consolidate the proposed changes to the Adults with Incapacity Act in one amendment.

Stage 2 took place on 12 December 2006 (Part 1) and 19 December 2006 (Parts 2 and 3). As regards Part 1, the Minister made a number of amendments that he had committed himself to, including the definitions of “an adult at risk” and the term “abuse”, and making it clear that granting an order against the consent of an adult at risk is a last resort. In addition he either accepted at Stage 2 or said he would come forward with amendments at Stage 3 a number of issues raised by Members of the Committee. These included:

• that the Council officer visiting an adult at risk must explain why they are there
• the adult at risk must be made aware they can refuse medical examinations
• the Sheriff must be satisfied adult at risk can be taken to a suitable place

As regards Parts 2 and 3 a number of amendments were proposed by the Minister and accepted by the Committee. In addition a number of amendments were proposed by Members of the Committee. Some of these were agreed to, or the Deputy Minister gave assurances he would come forward with amendments at Stage 3. These amendments as well as all those concerning Part 1 are discussed in more detail in the SPICe Briefing 07/07 ‘Adult Support and Protection (Scotland) Bill: Parliamentary Consideration Prior to Stage 3’.

Stage 3 took place on 15 February 2003. Prior to it on 7 December 2007 the Deputy Minister for Health and Community Care sent a letter to the Convener of the Health Committee advising of a further amendment he intended to propose regarding the Adults with Incapacity Act 2000. The Deputy Minister also proposed amendments that he previously committed himself to taking account of the issues raised by Members of the Committee at Stage 2.

Health Board Elections (Scotland) Bill

Bill Number: SP Bill 63
Introduced on: 31 March 2006
Introduced by: Bill Butler (Member’s Bill)
Fell: 31 January 2007

Passage of the Bill

The Health Board Elections (Scotland) Bill [SP Bill 63] was introduced in the Parliament by Bill Butler MSP on 31 March 2006. Stage 1 evidence taking began on 24 October 2006 with the Health Committee as the lead committee. The Stage 1 debate took place on 31 January 2007 but the Bill fell on a vote of 55 for and 64 against with no abstentions.

Purpose and objectives of the Bill

The objective of the Bill was to make provision for local public elections to National Health Service Boards in Scotland, with the intention of democratising Scotland’s Health Boards. The Bill aimed to allow the public to influence health service delivery in their local communities, and to ensure greater openness, transparency, and local accountability between board members and the communities they serve.

Provisions of the Bill

The Bill made provision to reserve a majority of publicly elected Health Board places (50% plus no more than two) over appointed members. The chair would still be appointed by Scottish Ministers, but elected members would have majority control of the Board. Elected members would receive no remuneration.

The proposed method of election was via a postal ballot using the ‘first past the post’ electoral system in the context of a multi-member constituency for a fixed four year term, with all the costs being met by NHS boards.

Parliamentary consideration

With the exception of one Member, who opposed the Bill, the majority of the Health Committee was either in favour or neutral on the general principles of the Bill. The Committee had three main concerns which, in their view, required further consideration:

• the electoral system should provide more equitable geographical representation
• the proportion of directly elected members on the board
• the addition of remuneration for directly elected board members

The Bill fell at the Stage 1 debate on a vote of 55 for and 64 against. There were no abstentions.

Airdrie-Bathgate Railway and Linked Improvements Bill

Bill Number: SP Bill 64
Introduced on: 30 May 2006
Introduced by: Network Rail Infrastructure Limited (Private Bill)
Passed: 28 March 2007

Royal Assent: 8 May 2007

2007 asp 19

Passage of the Bill

The Airdrie-Bathgate Railway and Linked Improvements Bill [SP Bill 64] is a Private Bill, and, as such, is subject to different Parliamentary rules procedures. The Bill was introduced in the Parliament on 30 May 2006. The Airdrie-Bathgate Railway and Linked Improvements Bill Committee was established by Parliament on 15 June 2006 and met for the first time on 28 June 2006. The 60 day period for objections concluded on 31 July 2006. There were 79 admissible objections lodged to the Bill.

The Committee published its Preliminary Stage Report on 14 November 2006 with the Preliminary Stage debate held in the Parliament on 23 November 2006. The Parliament also passed the Financial Resolution on the Bill.

The Committee commenced phase one of Consideration Stage on 23 November 2006 which culminated in the publication of the Committee’s Consideration Stage Report on 5 March 2007 together with the Committee’s Report on the Airdrie-Bathgate and Linked Improvements Bill and European Protected Species. Phase two of Consideration Stage was completed by the Committee on 14 March 2007 when the Committee considered and agreed 54 amendments to the Bill.

Purpose and objectives of the Bill

The proposals in the Bill would allow Network Rail to construct an electrified double track railway between Airdrie and Bathgate, following the route of a previous railway line. Network Rail would also double track and, where necessary electrify, the existing Airdrie-Drumgelloch and Edinburgh-Bathgate railway lines using their existing statutory powers. The Bill grants Network Rail other powers required to build the railway, e.g. powers to build new roads or stop up existing roads. The end result would be a continuous electrified double track railway between Glasgow and Edinburgh via Airdrie and Bathgate.

The Bill allows for the construction of new stations in the villages Caldercruix and Armadale. The existing stations at Drumgelloch and Bathgate would be relocated and a new light maintenance depot built on the site of a rail served car storage yard in Bathgate, which will itself be relocated to Boghall, to the east of Bathgate. The existing Airdrie-Bathgate cycle path, which forms part of the National Cycle Network Route 75, would be relocated.

The specific objectives behind construction of the railway are to:

• improve direct access to labour markets in Glasgow, Edinburgh, and West Lothian for people living in the Airdrie to Uphall corridor.
• stimulate economic growth of the Airdrie to Uphall corridor by improving the connectivity of the area.
• assist in the delivery of social inclusion to communities in the Airdrie to Uphall corridor by providing enhanced public transport opportunities to those without access to private cars
• contribute towards increasing the number of people using public transport in Central Scotland and provide these communities with improved access into the national rail network
• offer a public transport alternative to the M8 thus helping to reduce the rise in road congestion and subsequent environmental impacts
• construct a rail link that will allow for existing services on the Glasgow North electrics to operate as through services to Edinburgh providing an alternative to the Edinburgh-Glasgow main line service, thus assisting in reducing congestion at peak times

Provisions of the Bill

Part 1 of the Bill gives powers relating to the works required. There are two types of works, those that are specifically described in the Bill, and those carried out under more general powers. Part 2 of the Bill gives compulsory purchase powers. Part 3 covers a number of miscellaneous subjects, whilst Part 4 gives some definitions and sets out the powers of Scottish Ministers.

Parliamentary consideration

In its Preliminary Stage Report, the Committee expressed concerns regarding the consultation undertaken by the promoter, funding contributions to the Bill and the level of house building forecast in relation to the patronage attributed the rail link. The Committee also commented on the high level of support for the provision of additional stations along the route, most notably at Plains and at Blackridge. The Scottish Executive also indicated its support for additional stations at Blackridge and Plains and committed to take this matter forward in the next session.

At Consideration Stage, the Committee did not uphold any of the outstanding objections however considerably strengthened the level of mitigation provided by the promoter to address any adverse impacts of the railway. The Committee also reiterated the need for more meaningful dialogue by the promoter with those adversely affected by the railway.

Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill

Bill Number: SP Bill 65
Introduced on: 13 June 2006
Introduced by: Cathy Jamieson (Executive Bill)
Passed: 15 June 2006
Royal Assent: 27 June 2006

2006 asp 9

Passage of the Bill

The Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill [SP Bill 65] was introduced in the Parliament on 13 June 2006. The Scottish Executive sought the agreement of the Parliament to treat it as an Emergency Bill, under the provisions set out in Rule 9.21 of the Standing Orders of the Scottish Parliament. A motion to this effect was agreed on 15 June 2006 and the Bill was passed without amendment on the same day, with all stages of parliamentary scrutiny being dealt with by the Parliament as a whole.

Purpose and objectives of the Bill

The two most senior judges in Scotland are the Lord President of the Court of Session (who also holds the office of Lord Justice General in relation to the High Court of Justiciary) and the Lord Justice Clerk. The Bill makes provision for the functions of these two judges to be carried out by other senior judges when either office is vacant, or where the judge in question is unable to carry out the functions of the office because of ill health.

In seeking the agreement of the Parliament to treat the Bill as an Emergency

Bill, the Minister for Justice stated that:

“I will briefly outline why I consider that it is important that this short but critical piece of legislation should be handled under those exceptional procedures.

The need arises because Scotland’s senior judge, the Lord President of the Court of Session, has been ill for some time and there is no indication of when he will return. Under the present law, a number of important functions may be carried out by the Lord President alone. His extended absence is already causing difficulties for the administration of the courts. The second most senior judge, the Lord Justice Clerk, has asked ministers to take early action to deal with this gap in our law. The only way in which we can remedy the situation is to legislate to put beyond any doubt that the Lord Justice Clerk may act in place of the Lord President during the Lord President's incapacity.” (SP OR 15 June 2006, col 26619)

Background information on the Scottish court system and judiciary (including the roles of the Lord President and Lord Justice Clerk) is set out in SPICe briefing 06/50 on the Bill.

Provisions of the Bill

The Bill makes provision for the functions of the Lord President (including functions performed in the role of Lord Justice General) and Lord Justice Clerk to be carried out by other senior judges when either office is vacant, or where the judge in question is incapacitated (ie unable to carry out the functions of the office because of ill health).

The Bill provides that the Lord President may be treated as incapacitated where the First Minister receives a declaration to that effect signed by the Lord Justice Clerk and at least four other judges of the Inner House of the Court of Session. Similar provision is made in relation to the Lord Justice Clerk. Thus, in both cases, a majority of Inner House judges must agree.

Where the Lord President is incapacitated, or when the office is vacant, the Bill provides that his/her role can be performed by the Lord Justice Clerk. The Bill goes on to provide that, in such circumstances, the role of the Lord Justice

Clerk can be performed by the next most senior judge of the Inner House (as determined by seniority of appointment). Similar provision is made for situations where it is the Lord Justice Clerk who is incapacitated (or where that office is vacant) – with the next most senior judge below the Lord Justice Clerk performing the role.

Parliamentary consideration

Following the Stage 1 debate, the general principles of the Bill were agreed with cross-party support.

Stage 2 of the Bill (considered by a Committee of the Whole Parliament) involved consideration of a number of detailed amendments which were withdrawn (or not moved) following debate.

Following the Stage 3 debate, the Bill was passed with cross-party support.

Transport and Works (Scotland) Bill

Bill Number: SP Bill 66
Introduced on: 26 June 2006
Introduced by: Tavish Scott (Executive Bill)
Passed: 8 February 2007
Royal Assent: 14 March 2007

2007 asp 8

Passage of the Bill

The Transport and Works (Scotland) Bill [SP Bill 66] was introduced in the Parliament on 26 June 2006. Stage 1 began on 5 September 2006 with the Local Government and Transport Committee as the lead committee. The Stage 1 debate took place on 22 November 2006, and the Bill was passed following the Stage 3 parliamentary debate on 8 February 2007. Royal Assent was received on 14 March 2007.

Purpose and objectives of the Bill

The Bill provides for the making of orders related to, or to matters connected with, the construction or operation of major transport infrastructure projects e.g. railways, tramways and inland waterways.

The Bill aims to replace the current approval system for major transport infrastructure projects (through a Private Act of the Scottish Parliament), with a new system of authorisation. Additionally, the Bill removes the current requirement to obtain an Act of the Scottish Parliament, following a special parliamentary procedure for certain road developments where there are objections from statutory bodies and for harbour developments where there is to be compulsory purchase, and replace it with a system similar to that described above.

Provisions of the Bill

The Bill is in 3 parts.

Part 1 makes provision to enable the Scottish Ministers, under an order-making power, to authorise transport developments and provides details of the procedure for the making of orders.

Part 2 modifies legislation relating to road and harbour developments, making the authorisation process for transport developments more consistent. It also establishes revised procedures for the making of Pilotage orders. A minor modification is made to the Transport (Scotland) Act 2001 to enable the Scottish Ministers to make grants and loans for the purchase of certain properties in consequence of a transport development.

Part 3 describes how secondary legislation (orders, rules and regulations) will be made. It also deals with modifications and repeals predominantly in respect of special Parliamentary procedure, and the commencement and short title of the Act.

Parliamentary consideration

The Local Government and Transport Committee took Stage 1 evidence on the Bill between September and November 2006. Based on the evidence taken, the committee made recommendations on:

• standards of consultation carried out by promoters and the Executive
• resourcing the Scottish Executive Inquiry Reporters Unit
• publication of inquiry reports by Scottish Ministers
• publication of a written statement when a Minister decides to go against the recommendations of an inquiry report

Stage 2 consideration of the Bill took place on 12 December 2006. The majority of amendments made were of a technical nature. The main changes are:

• an expansion to the list of authorities whose objection to a proposal will require a hearing or inquiry to be held
• additional parliamentary scrutiny for amendments to relevant legislation
• an extension of the application of the voluntary purchase scheme

Aquaculture and Fisheries (Scotland) Bill

Bill Number: SP Bill 67
Introduced on: 29 June 2006
Introduced by: Ross Finnie (Executive Bill)
Passed: 1 March 2007
Royal Assent: 5 April 2007

2007 asp 12

Passage of the Bill

The Aquaculture and Fisheries (Scotland) Bill [SP Bill 67] was introduced on the 29 June 2006. Stage 1 commenced on 27 September 2006 with the Environment and Rural Development Committee as the lead committee. The Stage 1 debate took place on 20 December 2006 and the Bill was passed following the Stage 3 parliamentary debate on 1 March 2007.

Purpose and objectives of the Bill

The Bill has three main purposes: to provide a statutory basis for regulating previously unregulated practices in aquaculture; to enhance emergency powers for controlling Gyrodactylus salaris, a parasite of salmon; and to make a number of miscellaneous amendments to salmon, freshwater and sea fisheries legislation.

Provisions of the Bill

The Scottish Executive published an aquaculture strategy in 2003. This included a commitment to legislate to improve the regulation of aquaculture. The Bill builds on this commitment. Part 1 of the Bill would introduce new powers to control sea lice and escapes from fish farms, and give a statutory underpinning to codes of good fish farming and shellfish farming practice.

Gyrodactylus salaris (GS) is a parasite of salmon. It is currently absent from the UK, but outbreaks have occurred in other European countries. In Norway and Finland it has wiped out salmon from entire river catchments. Scottish Ministers currently have some powers to control GS under fish health legislation, however, these would not extend to the two main methods of eradicating GS, both of which involve flushing river systems with chemicals. Part 2 of the Bill would provide these powers, and strengthen Ministers other powers to control the disease.

The Scottish Executive held a major consultation on freshwater fisheries management in 2000, and followed this with a Green Paper in 2001. The law on salmon and freshwater fisheries was brought together in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. Part 3 of the Bill contains a number of amendments to this Act which have been drawn up in consultation with a Freshwater Fisheries Forum. It also includes a technical amendment to sea fisheries law.

Part 4 of the Bill contains a number of miscellaneous provisions relating to: introduction of live fish into inland waters; provision of information about fish and shellfish farming; allowing Ministers to make payments for compulsory slaughter of fish, and more generally to support the aquaculture industry.

The Executive had intended to make changes to the system of managing freshwater fisheries in Scotland through this Bill. However, it was not possible to develop legislative proposals in time, and the Executive intends to bring forward another fisheries bill, sometime in the next Parliamentary session.

Parliamentary consideration

The Environment and Rural Development Committee’s Stage 1 report to the Parliament on the general principles of the Bill made a number of recommendations. In its findings, the Committee emphasised the importance of preventive measures to stop the parasite Gyrodactylus salaris (GS) reaching Scotland. The Committee called for more robust measures at ports to prevent it spreading to Scotland and recommended the launch of a high profile public information campaign about the importance of disinfecting angling gear and other water-sports equipment.

During Stage 2, the main amendments made to the Bill concerned sea fisheries. A new part was added which provides for administrative penalties for sea fisheries offences. This would give a person charged with an offence the option of accepting a fine, rather than being taken to court. The fixed penalty would not be classified as a criminal conviction. If the person did not accept the fixed penalty then they could be taken to court as is the case at present. The introduction of a fixed penalty system was recommended by the Prime Minister’s Strategy Unit’s enquiry into the future of sea fisheries, which produced a report called ‘Net Benefits’ in 2004.

Schools (Health Promotion and Nutrition) (Scotland) Bill

Bill Number: SP Bill 68
Introduced on: 8 September 2006
Introduced by: Peter Peacock (Executive Bill)
Passed: 14 March 2007
Royal Assent: 19 April 2007

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Passage of the Bill

The Schools (Health Promotion and Nutrition) (Scotland) Bill [SP Bill 68] was introduced on 8 September 2006 and the Communities Committee designated lead Committee. The Committee took evidence at stage 1 on 24 October 2006; on 1, 8, 15, 22 November 2006 and on 6 December 2006. The Committee reported on the general principles on 16 January 2007 in its Stage 1 Report and the Stage 1 debate was held on 24 January 2007. Stage 2 amendments were considered on 13 February 2007. The Stage 3 debate was held on 14 March 2007 following which the Bill was passed.

Purpose and objectives of the Bill

The Bill aims to improve the health of children by ensuring that food and drink supplied in local authority schools is nutritionally balanced and, more generally, it seeks to make all schools ‘health promoting’.

Provisions of the Bill

The Bill includes a duty to make schools ‘health promoting’, a duty to ensure food supplied meets nutritional standards, a power to provide free snacks, a duty to promote the uptake of free school meals and a duty protect the anonymity of those pupils taking free meals.

Parliamentary consideration

During Stage 1 the Committee took oral evidence over six meetings from 11 panels of witnesses, including children’s charities, food suppliers and health organisations. In addition the Committee went on two fact-finding visits. One to a primary in Kilmarnock and another to a high school Glasgow. Members also held a teleconference with pupils in hostel accommodation in Shetland. Issues arising at Stage 1 included:

• extending coverage of aspects of the Bill to the independent school and private nursery sector
• extending entitlement to free school meals
• infrastructure costs if uptake were to increase
• variation in uptake between local authorities and between primary and secondary
• vans outside schools selling unhealthy food
• promoting up take of school meals
• importance of involving children in the process rather than imposing solutions on them

The Committee agreed to the general principles in its Stage 1 report.

At Stage 2 the Bill was amended to provide for guidance to be issued on sustainable development. Amendments relating to free school meal entitlement, use of biometric data and facilities for food preparation were defeated.

At Stage 3 the Bill was amended to further specify the content of the guidance on sustainability. As at Stage 2 amendments relating to free school meals were defeated (although the First Minister, Jack McConnell, had recently announced his intention to use existing regulatory powers to extend entitlement). Other defeats included promotion of free breakfasts and the limitation of advertising and sponsorship from companies producing unhealthy food.

Prostitution (Public Places) (Scotland) Bill

Bill Number: SP Bill 69
Introduced on: 15 September 2006
Introduced by: Tom McCabe (Executive Bill)
Passed: 28 February 2007
Royal Assent: 5 April 2007

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Passage of the Bill

The Prostitution (Public Places) (Scotland) Bill was introduced in the Scottish Parliament on 15 September 2006. The Local Government and Transport Committee, as lead committee, commenced taking Stage 1 oral evidence on the general principles of the Bill at its meeting on 3 October 2006. The Stage 1 debate took place on 17 January 2007 and the Bill was passed following the Stage 3 debate on 28 February 2007.

Purpose and objectives of the Bill

The Policy Memorandum published along with the Bill [as introduced] stated that:

“The Bill seeks to protect our communities from antisocial activity associated with prostitution in public places. The current law in Scotland is focused on those (predominately women) who sell sex on the street and not on those (predominately men) who purchase. There is a need to redress this balance in order to protect communities from the nuisance, alarm or offence arising from street prostitution-related activities in or near public places, whether caused by seller or purchaser.” (para 2)

Provisions of the Bill

The Bill [as introduced]:

• sought to repeal section 46 of the Civic Government (Scotland) Act 1982 which includes provisions making it an offence for a prostitute to loiter or solicit in a public place for the purposes of prostitution
• sought to replace the above offence with new provisions making it an offence for a person to loiter or solicit in a ‘relevant place’ for the purpose of prostitution (i.e. an offence focussed on those who sell sex)
• sought to introduce new provisions making it an offence for a person to loiter or solicit in a ‘relevant place’ for the purpose of obtaining the services of a prostitute (ie an offence focussed on those who seek to buy sex).
• The new provisions, unlike the offence set out in section 46 of the 1982 Act, expressly provided that there would only be an offence if a reasonable person would consider that the behaviour involved was ‘likely to cause alarm, offence or nuisance’.
• The new provisions were applied to any ‘relevant place’, which was defined as including a public place and a place to which at the material time the public are permitted to have access (whether on payment or otherwise)

The Bill [as passed]:

• does not repeal section 46 of the 1982 Act and does not introduce any new offence aimed at those who sell sex – thus, the existing criminal law in this area is not changed by the Bill
• provides that it is an offence for a person to loiter or solicit in a ‘relevant place’ for the purpose of obtaining the services of a prostitute (ie an offence focussed on those who seek to buy sex).
• The Bill no longer provides that there will only be an offence if a reasonable person would consider that the behaviour involved was ‘likely to cause alarm, offence or nuisance’ – given that this is also not required under section 46 of the 1982 Act, it will not be a requirement for the offences aimed at those who sell or those who seek to buy sex

Parliamentary consideration

As indicated above, the Bill underwent some significant