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Section 5 — Making of designation orders
National Parks (Scotland) Bill: Stage 3
Nicol Stephen (Liberal Democrat)
Amendment 16 is the major Executive amendment in this group. The rest of the Executive amendments are minor and technical, and are intended to add clarity to the bill.
In the original draft bill it was proposed that there should be only four stages in the designation process: the initial national park proposal, a public consultation on that proposal, a published report and, finally, the laying of a draft designation order before Parliament. In response to concerns expressed by the Rural Affairs Committee and the Subordinate Legislation Committee, the Executive introduced amendments to the bill at stage 2 and the further amendments that are before members today, to strengthen public consultation and the involvement of Parliament in the process.
There will now be six stages in the designation process, and at certain points there will be strengthening of those stages. The first stage is now the initial national park proposal, on which there will still be public consultation, to be followed by a published report. Then come the new stages that we have introduced. The proposed designation order will be published, and there will be a public consultation on it. There will be a duty on ministers to take into account the views received during that consultation. Ministers will then have an opportunity to amend the proposed designation order before finalising it. Finally, there will be a statement or a report on the consultation to Parliament and the draft order will be laid.
It is clear that there have been significant changes to and strengthening of the public consultation process and the involvement of Parliament in it. Section 5 of the bill was amended at stage 2. The Executive amendment at that stage, which was lodged in response to the concerns that I have described, provided for a wide consultation on the proposed designation order. Previously, as I have said, there was nothing of that nature in the bill. In the light of comments received on the proposed designation order, the Scottish ministers could amend the order prior to laying it before Parliament for consideration as an affirmative instrument. The Parliament will, therefore, have an opportunity to consider the statutory instrument. The 12-week consultation process provides the public with an
Amendment 16 is an additional Executive amendment being brought forward today to give further strength to the consultation process. It puts a duty on the Scottish ministers to lay a statement on the consultation at the same time as they lay the final proposed designation order—the draft designation order as it will technically be known. This statement will include the views and comments received in the consultation process and how, if at all, the draft designation order has been amended in the light of consultation comments. This ensures that there is transparency in the process. It will help to inform the debate in Parliament when it is deciding whether to approve the draft designation order through the affirmative process.
Amendment 9 puts right an omission from the Executive amendment at stage 2. It ensures, in keeping with consultation provisions elsewhere in the bill, that when the Scottish ministers go out for consultation on a proposed draft designation order, a copy of the draft is laid before Parliament.
As I have said, the rest of the amendments in this group add clarity to the bill. They describe draft designation orders, which are sent out for consultation, as proposed draft designation orders to distinguish that stage of the draft from the affirmative draft laid after the consultation process has been completed.
I have extensive notes on amendment 28, in the name of Mr MacAskill. Unfortunately, he was not present during the stage 2 debate on this issue, when a similar amendment in his name was moved by Irene McGugan. I will keep my remarks short and say that, in my opinion, what Kenny MacAskill and the Subordinate Legislation Committee were trying to achieve has, in essence, been achieved by the Executive amendments that have been brought forward at stages 2 and 3.
I appreciate that Mr MacAskill is going about the process in a different way, but we have now provided for a wide consultation process on a proposed designation order, before the designation order is formally laid before Parliament. I hope that Parliament will agree that this process is the right way to go about it. There are some differences in what Kenny proposes, but we have moved a long way from what was proposed at stage 1.
I move amendment 7.
Mike Rumbles (Liberal Democrat)
I will make one additional comment. In future, when the Executive publishes the reasons why changes were not made after the consultation process, could those reasons be publicised? Past experience has shown that it is helpful if the reasons for not doing something that becomes a major issue in the consultation process can be explained.
Fergus Ewing (Scottish National Party)
We welcome all the steps that have been taken to ensure that consultation should be as wide as possible when we consider the designation orders and that that consultation should engage the public. However, it is most unfortunate that the Executive has not accepted the case for there to be the ultimate form of consultation, by asking the people who live and work in a national park area whether they agree that they see the benefits of a national park.
Fergus Ewing (Scottish National Party)
I will give way in a minute, minister. Members in this chamber may not realise that there are no fewer than 17,100 people in the Cairngorms Partnership area—that is a lot of people. I believe that the ultimate form of consultation is a referendum. Anyone who is a democrat—whether a Liberal Democrat or any other type—must welcome the possibility of holding a referendum to ask people whether they agree that they wish to be part of a national park. That is true consultation.
Nicol Stephen (Liberal Democrat)
It is important to remember that we are talking about national parks rather than local parks.
The issue was fully debated at stage 2, at which time there was an opportunity for Mr Ewing to put across his arguments in favour of a referendum. As I recall, the result of the vote on the matter—which members of the SNP took part in—was eight to zero against having a referendum.
Fergus Ewing (Scottish National Party)
I must correct the minister: the vote was not as he said. I believe that there were two votes from my colleagues in favour of a referendum. I have since become aware that members of another party would have been minded to support the idea if it had been permitted for debate today. I accept the Presiding Officer's ruling, but I will say that it is unfortunate that we do not have the opportunity to debate matters of principle at stage 3.
I do not want to dwell on the matter, as the point
Kenny MacAskill (Scottish National Party)
Amendment 28 seeks to ensure adequate democratic scrutiny in this chamber. It is meant to enhance the input of Parliament and parliamentarians. For the benefit of the Executive, I will say that it seeks to do so within the bounds of the existing Scotland Act 1998. It does not detract from the Executive amendment; indeed, it adds to and complements it. It ensures greater scrutiny and interaction from the Parliament. The Executive amendments ensure greater interaction and scrutiny from the public. We are trying to replicate the opportunity for parliamentarians to take part in the consultative process before matters proceed.
I am speaking to the amendment not as a member of the SNP but as the convener of the Subordinate Legislation Committee. This is not a committee amendment, but I point out that the suggestion for a super-affirmative procedure was carried unanimously in the committee and continued to receive the complete support of the committee even upon review at later stages.
I should indicate that subordinate legislation is an important part of the democratic process. If every matter that we deal with had to go through stages 1, 2 and 3 in the Parliament, we would make no progress. Clearly, there is a need for speedy methods of dealing with matters that will not be opposed in any way. I do not want to rehash the arguments about whether national parks should have proceeded by way of enabling legislation. The fact is that subordinate legislation is, in the main, non-contentious. That is shown by the number of occasions on which members of the Parliament have used their powers to move against any statutory instrument that has appeared.
A problem arises only when enabling legislation is used for matters that will be complex. We will spend all afternoon on this bill. We have had debates on the bill in numerous committees and in this chamber. The difficulty is that we have not yet decided where a national park will be, what its boundaries will be, what its geography and domain will be, who will be a member of the national park's authority, nor how those members will be elected. Many important issues still have to be examined.
There has to be local democratic input, but there also has to be a way for those who represent areas that are not in the park area to progress matters and participate. That will not conflict with
My amendment would focus matters for representatives of all airts and pairts of Scotland. I welcome the additional mechanisms to provide consultation at local level, but I believe that members of this Parliament should also have the opportunity to take part in the consultative matters. That will ensure that, when subordinate legislation goes through this Parliament, it will be focused. We will know what people are commenting on and will have before us the Executive response. Members will still be left with either a yes or a no, but at least they will have a better view of what is being debated.
This amendment enhances the democratic process—and the democratic nature of this Parliament—and adds to the powers that we should have. It does not detract from the ability of the elected Executive to process speedily matters for which it has already obtained the enabling powers.
Murray Tosh (Conservative)
As a rule, I try never to agree with Kenny MacAskill in this chamber: it makes for a livelier debate when I do not. However, this afternoon I support Mr MacAskill's amendment. It is not an SNP amendment, but one that he is moving in his capacity as the convener of the Subordinate Legislation Committee.
In many respects, it is a great pity that we have to go through the stages of primary and secondary legislation to establish only two or—at the outside, and allowing for a few more years to pass—three national parks. We have debated that issue in the Transport and the Environment Committee, and the reasons for it are well known. Nevertheless, the fact is that this Parliament has surprisingly little direct input into the ultimate process.
I am not detracting in the slightest from what Nicol Stephen said in his opening remarks. It is clear from the amendments that the Executive lodged at stage 2 and this afternoon that it has listened to what was said on that point at stage 2 in the Transport and the Environment Committee, and that it has taken those views into account. I am happy to support the amendment that Nicol Stephen has spoken to this afternoon, along with the other amendments that have been lodged—not least amendment 9, which provides for the laying of documentation before the Parliament.
When we debated this issue in the committee, I moved a couple of amendments that were
This debate has been substantially shaped by 11 members, plus a couple of visitors to the Rural Affairs Committee. Some might say that this bill has been substantially shaped by one member, whom I presume will speak to further amendments later this afternoon. The rest of the Parliament has not been deeply engaged in the processes or debates. My fear about using subordinate legislation as the means to implement all the details at later stages is that the Parliament as a whole will not engage in the debate and will not be fully aware of the issues. At the final stage, when it is necessary to approve a statutory instrument, relatively few people will have been engaged in that process.
Mr MacAskill's amendment, which is not hostile in any way, would allow the Parliament a greater role and would require the Executive to listen and respond to the points that members make. As Kenny pointed out, there is no procedure for the Parliament to amend the designation order stage by stage. Amendment 28 will allow concerns to be expressed more clearly at the designation order stage, and will give local members—who might have serious points to make about the precise designations of boundaries and powers—the opportunity to bring those concerns before the Parliament. At that stage, the Parliament could be informed and involved, and its support could be sought in attempting to influence the final orders.
That is what is at stake here. The amendment is not trying to spike the national parks or frustrate the Executive's intentions—I repeat: I accept the Executive's amendments and commend them—but is about involving the Parliament and giving it a greater say. Kenny MacAskill has made a good point this afternoon. If, in the spirit of the consultative steering group principles, ministers are genuinely seeking to share the power, this is an area in which they should seek to share the power with the Parliament. There is nothing in amendment 28 that ministers need to fear, but there is a lot to commend it. Therefore, I ask members to support amendment 28 when Mr MacAskill moves it.
Nicol Stephen (Liberal Democrat)
It is unfair to suggest that only a small number of individuals have been involved in the development of these proposals, as a wide range of MSPs and others have been involved.
Members who were not members of the Rural Affairs Committee or the Subordinate Legislation Committee attended meetings on the bill. Many of them spoke eloquently and at great length at those meetings. We should recognise that the bill is the result of a very wide consultation process and that it has been met by a great deal of unanimity. There is a high level of support across Scotland for the proposals. We should welcome that.
The issue is whether we should go further than the current procedures go. I have explained that we have gone far further than was envisaged at stage 1. There has been a significant move. A whole new stage has been introduced and the level of public consultation has been widened. The issue is whether we adopt what has been called a super-affirmative procedure. Such a procedure has been used only very rarely. In the instance of which I am aware, it gave very sweeping and wide-ranging powers to ministers. I do not think that it is appropriate in every instance, although it is up to Parliament to judge when it is appropriate.
There is no doubt that the Parliament will wish to return to this issue. It will be discussed by the Procedures Committee and the Subordinate Legislation Committee. I have no doubt that over time, and quite appropriately, the procedures of the Parliament will develop. For the purposes of the bill, we have gone a long way to answer the concerns that exist.
Alasdair Morgan (Scottish National Party)
The minister said that one of his objections to the super-affirmative procedure was that it gave sweeping powers to ministers. I do not understand how that can be an objection to amendment 28. Rather than giving sweeping powers to ministers, that amendment gives Parliament some way of checking those ministers. Can the minister come up with a better argument?
Nicol Stephen (Liberal Democrat)
Alasdair Morgan misunderstands me. The super-affirmative procedure was introduced in a Conservative piece of legislation. Ministers were given sweeping discretion by that legislation to introduce statutory instruments that affected existing legislation. Therefore, the extra reassurance of the super-affirmative procedure was introduced. The bill is a different kind of legislation, for which a super-affirmative procedure is not necessary but for which the wide-ranging consultation process that we have introduced is entirely appropriate.
Amendment 7 agreed to.
Amendments 8 to 14 moved—[Nicol Stephen]—and agreed to.
Amendment 28 moved—[Mr MacAskill].
Division number 6
For: Aitken, Bill, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fergusson, Alex, Gallie, Phil, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Harper, Robin, Hyslop, Fiona, Ingram, Mr Adam, Johnston, Nick, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Morgan, Alasdair, Mundell, David, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Scanlon, Mary, Scott, John, Swinney, Mr John, Tosh, Mr Murray, Wallace, Ben
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Ferguson, Patricia, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Grant, Rhoda, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Macmillan, Maureen, Martin, Paul, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLetchie, David, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, Mr John, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan
Abstentions: Jenkins, Ian