Transport (Scotland) Bill: Stage 3 (Day 2)

– in the Scottish Parliament on 10th October 2019.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is continuation of stage 3 consideration of the Transport (Scotland) Bill. I will not repeat the procedural advice, because I think that members are familiar with it. However, the division bell will sound before we have the first division of the afternoon and Parliament will be suspended for five minutes to allow members to come to the chamber.

The Presiding Officer:

Group 23 is on the workplace parking levy and the application of net proceeds. Amendment 171 is the only amendment in the group.

Photo of Dean Lockhart Dean Lockhart Conservative

I will try to be brief and use the notes that I abbreviated at 9 o’clock last night.

As it is drafted, section 58 requires local authorities to apply proceeds from the workplace parking levy only for the purpose of facilitating local transport policy. The purpose of amendment 171 is to require the proceeds that are raised under the levy also to be used for supporting local business improvement districts, including town centre and high street regeneration projects in the local authority area.

The Scottish Conservatives fundamentally disagree with the workplace parking levy, but if it is to be introduced, the proceeds should be used in a way that directly benefits our high streets and town centres. High streets across Scotland are facing unprecedented pressure, with an average of five shops closing each week according to a recent survey. Parliament needs to take action to revive our high streets. Ring fencing the proceeds from the levy for investment into high streets would be a positive first step.

I therefore encourage members to support their local high streets and support the amendment.

I move amendment 171.

Photo of Michael Matheson Michael Matheson Scottish National Party

Amendment 171 concerns the application of net proceeds from a workplace parking licensing scheme. As drafted, the bill requires funds that are raised to be used for activities to achieve policies in a local authority’s local transport strategy, or in the strategy of local authorities with which it is working jointly for transport purposes.

The local transport strategy will be developed to address local circumstances, and may, at the local authority’s discretion, include transport-related policies to strengthen business improvement districts or any other locally significant initiatives. Rather than seeking to determine the initiatives to be supported at national level, it is appropriate to allow local authorities to determine how funds are allocated through their transport strategies. As a result, I do not support the amendment and I ask members to reject it.

Photo of Dean Lockhart Dean Lockhart Conservative

I appreciate that the cabinet secretary is keen to increase funding for transport, especially given the dismal performance of ScotRail. However, Scotland’s high streets face unprecedented pressure from increasing business rates and a stagnant economy under the Scottish National Party. Amendment 171 would give the high street a much-needed boost, and it would give local authorities full discretion over how to use the money for the benefit of town centres.

I therefore encourage members to support their local high streets, and to support amendment 171.

The Presiding Officer:

The question is, that amendment 171 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

This is the first division of the day, so I suspend the meeting for five minutes while we summon members to the chamber.

13:54 Meeting suspended.

13:59 On resuming—

We move to the division on amendment 171.

Division number 1 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 44 MSPs

No: 59 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 44, Against 59, Abstentions 0.

Amendment

171 disagreed to.

Amendment 12 moved—[Neil Bibby].

The question is, that amendment 12 be agreed to. Are we agreed?

Members:

No.

Division number 2 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 47 MSPs

No: 55 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 47, Against 55, Abstentions 0.

Amendment 12 disagreed to.

Section 58M—Accounts:

Amendment 110 moved—[Michael Matheson].

The Presiding Officer:

The question is, that amendment 110 be agreed to. Are we agreed?

Members:

No.

Division number 3 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 76 MSPs

No: 26 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 76, Against 26, Abstentions 0.

Amendment

110 agreed to.

Amendment 13 moved—[Neil Bibby].

The question is, that amendment 13 be agreed to. Are we agreed?

Members:

No.

Division number 4 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 48 MSPs

No: 55 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 48, Against 55, Abstentions 0.

Amendment 13 disagreed to.

Section 58N—Penalty charges:

Amendment 111 moved—[Colin Smyth]—and agreed to.

Amendment 14 moved—[Neil Bibby].

The Presiding Officer:

The question is, that amendment 14 be agreed to. Are we agreed?

Members:

No.

Division number 5 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 48 MSPs

No: 54 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 48, Against 54, Abstentions 0.

Amendment 14 disagreed to.

Section 58O—Evidence from approved devices:

Amendment 15 moved—[Neil Bibby].

The Presiding Officer:

The question is, that amendment 15 be agreed to. Are we agreed?

Members:

No.

Division number 6 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 48 MSPs

No: 55 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 48, Against 55, Abstentions 0.

Amendment 15 disagreed to.

Section 58P—Enforcement powers:

Amendment 16 moved—[Neil Bibby].

The Presiding Officer:

The question is, that amendment 16 be agreed to. Are we agreed?

Members:

No.

Division number 7 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 47 MSPs

No: 54 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 47, Against 54, Abstentions 0.

Amendment 16 disagreed to.

We turn to group 24, which is on enforcement powers: workplace parking levy and road works. Amendment 112, in the name of Colin Smyth, is grouped with amendments 113, 115 to 118 and 177.

Photo of Colin Smyth Colin Smyth Labour

Amendments 112, 113 and 115 to 118 seek to tidy up the bill’s provisions on the issuing of warrants to access private premises for the purposes of enforcing the workplace parking levy and conducting inspections relating to road works. At points, those powers seem unnecessarily broad, so the amendments in my name would add small but useful caveats.

Amendments 112 and 117 clarify that warrants should be obtained only where attempts to enter the premises with permission from the owner have been unsuccessful. The bill as it is currently drafted says that a warrant can be granted if the sheriff reasonably expects to be denied entry. It is not clear what that means or what purpose that provision serves, so I do not see any reason to have it in the bill.

Amendments 113 and 118 place a time limit of 28 days on the execution of warrants. Warrants should not be open ended, so those amendments simply clarify the timeframe within which they should be used. I believe that 28 days is a reasonable period of time for that purpose.

Amendments 115 and 116 clarify that the inspection powers in relation to road works, which the bill introduces, must be used only within reason. Specifically, those amendments would make it clear that the person undertaking the inspection could retain relevant information only for as long as they reasonably consider necessary, and could require the provision of facilities and assistance only as they reasonably consider necessary. Those are small but important changes that make it clear that the powers granted under this part of the bill are not without restriction.

I move amendment 112.

The Presiding Officer:

I call Graham Simpson to speak to amendment 177 on behalf of the Delegated Powers and Law Reform Committee.

Photo of Graham Simpson Graham Simpson Conservative

As you said, Presiding Officer, I speak on behalf of the committee.

Section 58N(1) was inserted at stage 2 and provides the Scottish ministers with the power to make provision to impose penalty charges connected with workplace parking licensing schemes. As the bill is currently drafted, such regulations would be scrutinised by the Parliament using the negative procedure. The Government has said that that form of procedure would be appropriate as the power is procedural and technical in nature. It added that it is equivalent to other powers relating to the penalties in the bill on low-emission zones and the parking prohibitions that are also subject to the negative procedure

The committee agrees with the Government that much of the detail of the power, which relates to

“the notification, payment, adjudication and enforcement of penalty charges”,

is better suited to the negative procedure.

However, part of the power in section 58N extends beyond merely technical and procedural matters; it includes the power to define the circumstances in which a penalty charge may be imposed. The power is therefore wider than the powers relating to penalties in respect of low-emission zones and the parking prohibitions, for which the circumstances in which a penalty would apply are set out in the bill. The ability to define in regulations the circumstances in which a penalty is payable is a substantive power, and as such it requires enhanced parliamentary scrutiny. The committee considers that the affirmative procedure is the most appropriate vehicle for this part of the power.

Photo of Jamie Greene Jamie Greene Conservative

We had some reservations about Colin Smyth’s amendments 112 and 113, and his amendments 117 and 118. In the beginning we were unsure, and we were hoping that Colin Smyth would clarify exactly why those amendments are important. I am open to hearing what the cabinet secretary has to say about the matter. However, my concern is that, if we start to shift the terms of warrants that are issued under this legislation, it may have a knock-on effect on other pieces of legislation with regard to the enforcement of other types of offences.

To be fair, if it is deemed to be of merit to access a property for which a warrant is required, those in enforcement should be afforded all due law to enable them to carry out that act. I have slight worries about the consequence of Colin Smyth’s amendments altering the terms of such warrants. However, we are pleased to support amendments 115 and 116, which insert an element of protection for the general public in respect of what is, and what may not be, reasonable.

Photo of Michael Matheson Michael Matheson Scottish National Party

I am happy to support amendments 115 and 116, which make it clear that enforcement officers must act reasonably in the exercise of their enforcement function in respect of road works. Although, in my view, the amendments are not strictly necessary, I am happy to make that requirement explicit in the bill.

I am also content to support amendments 113 and 118. In practice, warrants for the exercise of enforcement powers in relation to workplace parking and road works are unlikely to be needed for more than 28 days, so the amendments would cause no practical difficulties.

However, I cannot support Colin Smyth’s amendments 112 and 117, which would undermine the effective exercise of workplace parking and road works enforcement functions. By requiring enforcement officers to apply to gain entry to the premises, even in cases in which they know that the application will be refused, the amendments would effectively offer organisations under inspection a window during which they could take action to frustrate the inspection. Powers of this kind are commonly found in comparable statutory enforcement regimes, and a warrant is granted only where a sheriff is reasonably satisfied, on the basis of evidence, that entry will be refused.

Graham Simpson’s amendment 177 would change the procedure under which certain regulations on penalty charges, in association with the workplace parking licensing scheme, are made. Although I appreciate the point that Graham Simpson has made, the approach that amendment 177 takes would potentially give rise to confusion as to when the affirmative procedure was applicable and when it was not, and would lead to very technical provisions being subject to an inappropriate level of parliamentary scrutiny. For those reasons, I cannot support amendment 177.

I urge members to support amendments 113, 115, 116 and 118, but I ask Colin Smyth and Graham Simpson not to press amendment 112 or move the other amendments in the group. Otherwise, I ask members to reject them.

The Presiding Officer:

I call Colin Smyth to wind up, and to press or withdraw amendment 112.

Photo of Colin Smyth Colin Smyth Labour

My amendments all make what I believe are relatively simple but important changes to the bill’s provisions on warrants and inspections. I think that we all recognise the need for those enforcement powers, and I am not looking to hinder them in any way. Rather, I am looking to clarify in law the expectation that they will be used in a responsible and reasonable manner. On that basis, I am happy to press amendment 112.

The Presiding Officer:

The question is, that amendment 112 be agreed to. Are we agreed?

Members:

No.

Division number 8 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 23 MSPs

No: 78 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 23, Against 78, Abstentions 0.

Amendment 112 disagreed to.

Amendment 113 moved—[Colin Smyth]—and agreed to.

Amendment 17 moved—[Neil Bibby].

The question is, that amendment 17 be agreed to. Are we agreed?

Members:

No.

Division number 9 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 48 MSPs

No: 55 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 48, Against 55, Abstentions 0.

Amendment 17 disagreed to.

Section 58R—Enforcement powers: further provision:

Amendment 18 moved—[Neil Bibby].

The Presiding Officer:

The question is, that amendment 18 be agreed to. Are we agreed?

Members:

No.

Division number 10 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 47 MSPs

No: 56 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 47, Against 56, Abstentions 0.

Amendment 18 disagreed to.

Section 58S—Power of entry: Crown land:

Amendment 19 moved—[Neil Bibby].

The Presiding Officer:

The question is, that amendment 19 be agreed to. Are we agreed?

Members:

No.

Division number 11 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 47 MSPs

No: 56 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 47, Against 56, Abstentions 0.

Amendment 19 disagreed to.

Section 58T—Interpretation of Part:

Amendment 20 moved—[Neil Bibby].

The Presiding Officer:

The question is, that amendment 20 be agreed to. Are we agreed?

Members:

No.

Division number 12 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 48 MSPs

No: 54 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 48, Against 54, Abstentions 0.

Amendment 20 disagreed to.

Group 25 is on the recovery of unpaid parking charges. Amendment 172, in the name of Pauline McNeill, is grouped with amendments 173 and 114.

Photo of Pauline McNeill Pauline McNeill Labour

Amendment 172 would leave out section 58U(2), which says:

“It is immaterial for the purposes of this Part whether or not the vehicle was permitted to be parked (or to remain parked)”.

Amendment 173 would leave out the word “conveniently” from section 58Z1.

I have concerns about the precedent that is being set in the parliamentary process, because there was no committee scrutiny of this part of the bill. I acknowledge that it began as one of many members’ bills and that it had a consultation, but it probably passed many members by because they were busy with their own bills. I agree with many aspects of what Murdo Fraser has tried to achieve here, but I am concerned about the practice of inserting members’ bills into bills at stage 2. I note that only 35 per cent of the respondents to his consultation were in favour of the concept of keeper liability. There did not seem to be a majority for it.

It is extraordinary that the Government was prepared to accept the concept lock, stock and barrel, on the basis that it already exists in this form in England and Wales. That is not a satisfactory test. England had wheel clamping, which we did not have in Scotland. England has trespass laws, which we do not have in Scotland. There is a debate to be had about whether Scotland has been getting things right while England has been getting things wrong. That also concerns me. There is also a debate to be had about access by private companies to car registration information, but that might be for another day.

I am grateful to Paul Wheelhouse, who wrote to me after stage 2, on behalf of Michael Matheson, in an attempt to clarify the points that I had raised. Section 58U, which is in part 4B, states that

“It is immaterial for the purposes of this Part whether or not the vehicle was permitted to be parked ... on the land.”

It makes it clear that the keeper liability provisions are to apply irrespective of whether the vehicle was permitted to be parked on the land or whether the driver of the vehicle had a contract in place with the landowner. That creates a clear liability on the keeper of the vehicle. If there is a contract in place, surely the driver should have the permission of the landowner.

In his letter, the minister gave the example of non-residents in a parking bay in a residents-only parking area. Does that mean that, if a person has rights over a parking bay, they cannot let their son or daughter use the space that is allocated to them? If a person owns a parking bay in a residents-only parking area, why would we need a subsection that says that it is “immaterial” whether permission was given? We should strive for clarity in the law and not confusion. Having read this subsection several times, I am confused as to why it is needed.

Another example is that owners of flats in city centre developments with parking spaces find it impossible to enforce their rights. However, if a city centre owner wants to give their friend the right to park in their parking bay, I do not see why it should be “immaterial” that that permission was given. If I have misunderstood that, I will be glad to be corrected.

Amendment 173 deals with the word “conveniently”. That is where my more serious concern lies. It clarifies that the keeper of the car can be held liable for charges incurred by the driver only where

“the creditor does not know ... the name of the driver” and either the driver’s address or

“an address at which the driver ... can conveniently be contacted.”

That provision is in place to facilitate options for the driver to be pursued before the creditor moves to pursue recovery from the vehicle keeper. I seek to remove the word “conveniently” because I am not clear why it is there.

In essence, my concern is about the meaning of “conveniently”. Does “conveniently” mean that the creditor attempted to contact the driver, or the person who was allegedly driving at the time? Does it mean that they knocked on the door of the driver or turned up at the driver’s place of work? Of course, there are huge issues about that concerning data protection.

I must draw Parliament’s attention to my serious concerns. I know that members have dealt with the overexuberance of private companies that have issued parking notices unfairly and unlawfully, and we do not even know about the code of practice, which is not in force yet. We do know, however, that the issuing of parking notices is of great interest to some overexuberant private companies. My experience of that has not been good.

We should not let the provisions pass without further scrutiny, or at least without accepting these amendments. Let us not forget that, when a parking notice is issued—I am not talking about a parking offence—it is only an allegation that the person was in breach; they might not have been. We are giving huge powers in this part of the bill to private companies that will go after the keeper of the car, not the driver. Lots of ordinary people will be caught out by that. At the very least we should pass my amendments so as to clarify the law, but I am unhappy about the whole matter.

Photo of Elaine Smith Elaine Smith Labour

Could Pauline McNeill confirm for the Parliament that the word “conveniently” is not at all defined in the bill?

Photo of Pauline McNeill Pauline McNeill Labour

My understanding is that it is not defined. That is what my concern is. What the bill is driving at, as I read it, is that, if it is convenient to go and find the driver, the creditor should go and do that. However, we do not know what that means.

I honestly do not trust these private companies to use the legislation. They will go after the keeper, because we have made it easy for them to do so. I do not know whether the bill goes even further than the English and Welsh legislation, because we have not had a chance to test it.

I move amendment 172.

Photo of Michael Matheson Michael Matheson Scottish National Party

Amendment 172 seeks to remove subsection (2) from section 58U. The removal of that subsection would significantly limit the reach of the keeper liability provisions, as it would leave considerable doubt about whether they apply to instances of drivers parking in parking areas that they are not permitted to park in and to instances where an allocated parking time has been exceeded. Those practices are precisely the sorts of irresponsible parking that the keeper liability provisions attempt to address.

Amendment 173 seeks to amend the first condition that must be met before a creditor can rely on the keeper liability provisions in the bill. Creditors have the right to enforce against the driver, but they cannot, as they do not know the driver’s name or address. The bill says that the latter is

“an address at which the driver for the time being resides or can conveniently be contacted.”

In this context, the word “conveniently” limits the potential addresses that can be caught by the provision. If the word is removed, the potential addresses at which the driver could be contacted could be very far reaching. That amendment could also lead to confusion as to what addresses could be caught, and it could ultimately reduce a creditor’s ability to rely on the keeper liability provisions.

Photo of Elaine Smith Elaine Smith Labour

I pose the same question to the cabinet secretary that I asked Pauline McNeill: how do we define “conveniently” in the law?

Photo of Michael Matheson Michael Matheson Scottish National Party

The point that Pauline McNeill did not refer to is that the provisions of this element of the Transport (Scotland) Bill tie into the Parking (Code of Practice) Bill, which was taken through the UK Parliament by Greg Knight, and the statutory code of practice, which sets out that any company using the process must apply the rules, including on how it would see “conveniently” applied to an address. For the first time, there is a statutory code of practice that deals with the type of rogue companies that are misusing the system as it stands. The new arrangements make it more suitable to prevent those types of rogue companies from exploiting the loopholes that we have in the law at present.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Will the cabinet secretary confirm to whom it is convenient?

Photo of Michael Matheson Michael Matheson Scottish National Party

In law, it is convenient in that it does not allow them to look for any address that relates to the particular person. The statutory code of practice will set out how it is to be applied in order to obtain the information.

Amendment 144, in my name, relates to section 58Z4. It sets out the circumstances under which the keeper of a vehicle may be contacted if a fine remains unpaid by the driver of a vehicle. As it is currently framed, the keeper may be contacted

“within the period of 28 days beginning within the day after that on which the notice to driver was given.”

That is not quite how the provision should operate. Instead, in line with the provisions that have been made in England and Wales, it should operate so that it is only once the driver has been given a period of 28 days within which to make payment but has not done so that the notice to the keeper may be issued. The purpose of amendment 144 is, therefore, to give effect to that intention.

Finally, keeper liability is not a new process in Scots law. It is presently used in Scots law in a number of areas, including in road traffic legislation. Therefore, it is important to recognise that the provisions help to address loopholes in the law that can be used by unscrupulous companies that seek to exploit individuals.

As each of Pauline McNeill’s amendments is significantly detrimental to the success of the operation of the keeper liability regime, I urge members to reject amendments 172 and 173, and to support amendment 144.

Photo of Elaine Smith Elaine Smith Labour

I will speak in support of amendment 173, in the name of Pauline McNeill. It is worrying that there has been little scrutiny of this particular issue, which is a point that also applies to other parts of the bill. Giving more power to private parking companies to track people down is not something that I would support. Many of those companies operate deeply concerning practices. As far back as 2009, I lodged a motion about their charges, which I entitled “Highway Robbery”. I spent a lot of time challenging the so-called fines that they hand out to my constituents, particularly elderly and disabled constituents, who feel threatened and worried by the aggressive letters that they receive—often for simple errors such as displaying their disabled badges upside down. Many of my constituents simply cannot afford the exorbitant charges.

I wrote to the Driver and Vehicle Licensing Agency to ask why it sells driver information to those private companies, and—indeed—about how the general data protection regulation affects that practice. What it said is very relevant to the word “conveniently”, which Pauline McNeill’s amendment seeks to remove. It said:

“Information about the registered keepers of vehicles can be released by the DVLA under Regulation 27 of the Road Vehicles (Registration and Licensing) Regulations 2002 and does not require the consent of the individual concerned. This legislation allows vehicle keeper details to be disclosed to third parties who can demonstrate that they have a reasonable cause to receive it. Although reasonable cause is not defined in legislation, the Government’s policy is clear. Requests should relate to the vehicle or its use following incidents where there may be liability on the part of the driver.”

As Pauline McNeill said, how do we even know that there is liability?

Photo of Michael Matheson Michael Matheson Scottish National Party

The Greg Knight bill that was taken through the UK Parliament is about tackling specifically the issue that Elaine Smith highlighted. That is why the provision that is created in this bill is about hooking it into that legislation in order to deal with those companies that might misuse the system. As part of that, the DVLA will provide information only to companies that have signed up to the statutory code of practice and apply the rules, which will prevent rogue operators from getting access to the information.

Photo of Elaine Smith Elaine Smith Labour

Although the letter goes on to say some of that, it still says what I read out—that is, that there has to be “reasonable cause”, which is not defined in legislation. Therefore, no matter the code of practice, the companies can still be given the information.

I am sure that nobody in the chamber condones irresponsible or selfish parking, but there is no doubt that some private companies harass and frighten vulnerable people, which certainly should not be condoned. Amendment 173 would at least assist in ensuring that some protection exists for keepers of cars. We should have further debate and discussion about the provision in section 58U and it should not be rushed through the parliamentary process. I support amendment 173.

Photo of Neil Findlay Neil Findlay Labour

I support Pauline McNeill’s amendments 172 and 173. If we do not support them, we will give a free hand to owners of private parking facilities to pursue the owner of a car, rather than the driver at the time of an offence, for the value of a fine. The driver at the time of the offence could be a family member, friend, colleague or anyone else who was insured and had permission to drive the car. Their deliberate or inadvertent parking on a site might result in a parking ticket being issued. However, if the perpetrator could not be identified, the vehicle owner would cop for the cost of the fine.

No one is saying that no one should be held accountable for an infringement, but the right person has to be held accountable. If it is not the right person being held accountable, that is fundamentally wrong. It is like saying that we could not identify the bank robber but we know who owns the getaway car, so they are going down for the crime. That is fundamentally wrong.

The cabinet secretary rightly complained about Jeremy Balfour not lodging his amendment at stage 2, but the provision in section 58U did not exist at stage 1, but came absolutely out of the blue through Murdo Fraser introducing a members’ bill into this bill with no scrutiny whatsoever, which is ludicrous.

I ask members to support Pauline McNeill’s amendments to remove a potentially bad piece of law from the bill. If we do not, all MSPs will be approached by constituents with cases of their being held liable for offences that they have not committed.

I ask Scottish National Party members in particular whether they will join the Tories today to give the power in question to owners of private companies. Will they support—of all people—Murdo Fraser? That is what they are being asked to do. I ask them to support the amendments in Pauline McNeill’s name and to throw out the provision in section 58U.

Photo of Jackie Baillie Jackie Baillie Labour

I, too, support amendments 172 and 173, because section 58U of the bill will give effect to a members’ bill from stage 2 that was not scrutinised by the committee or Parliament at stage 1, which means that there might be unintended consequences, as has been illustrated by Pauline McNeill.

Members have addressed the substance of section 58U, but I want to consider the process, because the Scottish Government has created a precedent in something that it usually resists vigorously. Should a back-bench member of a different party, or even of the same party as the Government, attempt to bring to Parliament, for consideration, a proposal that was not included at stage 1 of a bill, they are shouted down by Government ministers and its party’s MSPs. However, lo and behold, the Scottish Government is now guilty of not practising what it preaches, and SNP members are silent about the matter.

Many members will note the precedent that is being created today by the Scottish Government. Henceforth, it will not be able to use that position as an excuse to thwart members’ ambitions in forthcoming bills. This is not a party-political issue; it is about good parliamentary practice, with which we should not be so cavalier.

We do not have a second revising chamber, so we need to be careful about the scrutiny that we undertake. However, the current process falls well short of what is required.

The other point of note is that the provision that has been transposed into the bill relates to an English act and code of practice. Far be it from me to second guess the cabinet secretary, but I hope that he has had that tested against Scots law.

Pauline McNeill was right to point to the potential for confusion and to the lack of certainty and clarity. All law that we pass should be clear, but the provision in section 58U is not clear, and might therefore have unintended consequences, despite the cabinet secretary’s good intentions.

I urge the cabinet secretary to support Pauline McNeill’s amendments 172 and 173.

Photo of Murdo Fraser Murdo Fraser Conservative

I was not intending to speak on group 25, but such has been the sound and fury—and wilful ignorance—of Labour members on the issue, that it is worth making a brief comment on it.

I do not need any lessons about dealing with unscrupulous car parking companies—hundreds of constituents have contacted me about the issue over the past four or five years, which is what led me to run a member’s bill consultation on how the law in that area might be improved. The consultation suggested five reforms, all of which had majority support from all those who responded. I welcomed the opportunity to work with the Scottish Government to insert some of the reforms into the Transport (Scotland) Bill, which is the appropriate vehicle, given that the public had already been consulted on the issues.

What Pauline McNeill seems to have missed—the point was made by the transport secretary a moment ago—is that in tandem with the bill, we have Sir Greg Knight’s private member’s bill at Westminster, which has become the Parking (Code of Practice) Act 2019. That act had unanimous support at Westminster—including from the Labour Party—and has introduced a statutory code of practice for private car parking companies. That means that, for the first time, private companies that do not adhere to the statutory code of practice will not be able to access from the Driver and Vehicle Licensing Agency the records that they require to enforce notices. That is the important and essential point.

Photo of Pauline McNeill Pauline McNeill Labour

If I heard Murdo Fraser correctly, he said that the “majority” of respondents were in favour, but at stage 2, he said:

“In the consultation that I ran as part of my member’s bill proposal, 35 per cent of respondents were in favour of keeper liability, 33 per cent were opposed”.—[

Official Report, Rural Affairs and Connectivity Committee

, 26 June 2019; c 8.]

It is not the case that a majority of respondents were in favour of the proposal. I understand why: people are not in favour of keeper liability because they are frightened of what it actually means.

Photo of Murdo Fraser Murdo Fraser Conservative

I accept Pauline McNeill’s point. The majority of those who expressed a view were in favour—I appreciate that there is a slight difference.

Nevertheless, the package of reforms is sensible, balanced and fair to all. It is worth remembering that the provisions in the bill will not be brought into force until the provisions in the Parking (Code of Practice) Act 2019 are brought into force: it will all happen on the same date.

It is also worth remembering that many people have a legitimate interest in trying to protect their parking rights. I have been approached by the owners of flatted developments in town centres, who are absolutely fed up with their inability to stop members of the general public using their parking spaces, because the law is currently not sufficiently clear.

The same applies to owners of businesses that have allocated parking for workers or customers. It is very difficult to enforce that against members of the public who park without permission. There is legitimate interest in protecting people’s interests in their parking spaces. We can protect those interests only in a balanced and sensible way. What is proposed in the bill, coupled with the

Parking (Code of Practice) Act 2019, is a package that is supported by groups including Citizens Advice Scotland, the British Parking Association and a range of other stakeholders who see it as a balanced and sensible way to proceed.

I encourage members to support the bill and to reject amendments 172 and 173.

Photo of John Finnie John Finnie Green

I hear the concerns of my colleagues. Ordinarily, I would not get up to speak in support of Mr Fraser, but his proposals and the provisions in the bill have brought some welcome clarification, so I am happy with them.

The Presiding Officer:

I call Pauline McNeill to press or seek to withdraw amendment 172.

The Presiding Officer:

The question is—

The Presiding Officer:

Yes—but very briefly please.

Photo of Pauline McNeill Pauline McNeill Labour

I do not wish to detain members unnecessarily, but I do not think that we have had answers to some of the questions that I asked, such as in relation to land owners who give permission.

I take Murdo Fraser’s point about the statutory code of practice, but we do not yet know whether it will deal with rogue companies. Legislation was taken through Westminster, but my point is that separate legislation should also be taken through the Scottish Parliament. We should remember that the charges exceed local authority charges—I have seen charges of £80 or £90.

As the cabinet secretary said, keeper liability already exists, but that is in our public and criminal law. We are being asked to give private companies the power to use the concept of keeper liability. Neil Findlay was absolutely right that some people inadvertently park in contravention of the rules. I know people who did not realise that parking at 9 o’clock in a town centre on a dark night when everybody else had gone was a contravention of a parking notice. Will the code of practice deal with that? I would like to know for sure.

I will go back to points that Elaine Smith and Jackie Baillie made. It is not clear what the bill means by “conveniently”. I read that straightforwardly. I do not understand how the cabinet secretary can clarify the meaning of something when he did not actually write the provision—it was written by Murdo Fraser. It seems to be odd that the cabinet secretary can clarify that when the Government has done no scrutiny of the provisions.

Must a record be shown? Perhaps at some point the cabinet secretary will say whether creditors will be required to show what efforts they have made to find the drivers. I would have been happier if we could at least have inserted something like that.

The Presiding Officer:

I am sorry about the confusion, Ms McNeill.

The question is, that amendment 172 be agreed to. Are we agreed?

Members:

No.

Division number 13 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 23 MSPs

No: 80 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 23, Against 80, Abstentions 0.

Amendment

172 disagreed to.

Section 58Z1—First condition: lack of knowledge of driver’s name and address:

Amendment 173 moved—[Pauline McNeill].

The Presiding Officer:

The question is, that amendment 173 be agreed to. Are we agreed?

Division number 14 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 22 MSPs

No: 80 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 22, Against 80, Abstentions 0.

Amendment

173 disagreed to.

Section 58Z4—Giving of notice to keeper following giving notice to driver:

Amendment 114 moved—[Michael Matheson]—and agreed to.

Section 60—Inspection functions:

Amendments 115 and 116 moved—[Colin Smyth]—and agreed to.

Amendment 117 moved—[Colin Smyth].

The Presiding Officer:

The question is, that amendment 117 be agreed to. Are we agreed?

Members:

No.

Division number 15 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 22 MSPs

No: 81 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 22, Against 81, Abstentions 0.

Amendment

117 disagreed to.

Amendment 118 moved—[Colin Smyth]—and agreed to.

Section 64—Fencing and lighting of obstructions and excavations:

Amendment 119 moved—[Colin Smyth].

The Presiding Officer:

The question is, that amendment 119 be agreed to. Are we agreed?

Members:

No.

Division number 16 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 77 MSPs

No: 25 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 77, Against 25, Abstentions 0.

Amendment 119 agreed to.

Amendment 120 moved—[Colin Smyth].

The question is, that amendment 120 be agreed to. Are we agreed?

Members:

No.

Division number 17 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 77 MSPs

No: 25 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 77, Against 25, Abstentions 0.

Amendment 120 agreed to.

Section 68A—Health boards: duty to have regard to community benefit in non-emergency patient transport contracts:

Amendment 121 moved—[Michael Matheson]—and agreed to.

Section 68B—Health boards: duty to work with community transport bodies:

Amendments 122 to 125 moved—[Michael Matheson]—and agreed to.

The Presiding Officer:

Group 26 is on road orders. Amendment 174, in the name of John Finnie, is grouped with amendment 175.

Photo of John Finnie John Finnie Green

I think that members agree that we need more active travel—walking and cycling—and that one of the biggest barriers to that is a lack of infrastructure, such as wider pavements or segregated cycle lanes.

T o deliver that safe infrastructure, local authorities must pursue a legal process called a redetermination Scotland order, or RSO. At present, if objections have been made to such an order and not withdrawn, the matter must be referred to the Scottish ministers. That can delay a new cycle path, for instance, by up to 18 months.

I lodged an amendment on the matter at stage 2, but I did not proceed with it.

Amendment 174 does not seek to alter the process for redetermination orders. Rather, it seeks to transfer the management of the orders from primary to secondary legislation so that any agreed changes to the RSO process could be made in due course by statutory instrument, once further consideration and, if necessary, consultation with stakeholders has taken place. As we know, secondary legislation is a lot quicker and easier than waiting for a new parliamentary bill.

Amendment 174 has the support of the Convention of Scottish Local Authorities and Age Scotland.

I apologise to members, because amendment 175 was incorrectly drafted. I will not move it.

I move amendment 174.

Photo of Claudia Beamish Claudia Beamish Labour

I support John Finnie’s amendment 174, which would simplify the RSO arrangements to remove overtly difficult barriers to active travel. We should simplify such processes, because active travel uptake is in need of a boost.

The Edinburgh west to east city centre cycle route Government inquiry is still under way after a year, after there were formal objections to the council scheme. The City of Edinburgh Council responded to the inquiry and refuted all the objectors’ arguments, showing the scheme to be line with council and Government policies. That has taken up a vast amount of the City of Edinburgh Council’s time and effort. Furthermore, I understand through Spokes Lothian that the same delay is expected to the second phase of the project.

That key example is in Edinburgh and, although the position often depends on whether there is a determined local objector, it is notable that Glasgow City Council and the Convention of Scottish Local Authorities, as John Finnie highlighted, are also in support. Such problems and inconsistencies can have a big impact on cycling infrastructure projects and are often about very localised decisions, which should, in our view, be sorted out through secondary legislation.

As co-convener of the cross-party group for cycling, walking and buses, and a wary urban cyclist, I support the amendment.

Photo of Edward Mountain Edward Mountain Conservative

I thank John Finnie for not moving amendment 175, although I do not fully understand why.

Amendment 174 builds on amendment 321 that John Finnie lodged at stage 2. I looked back to what the cabinet secretary said about taking the provisions of that amendment and putting them into the traffic regulation order process, which I believe is the intention. I would like confirmation from the cabinet secretary that, under the new subsection 3 that is proposed by amendment 174, there will be sufficient consultation with those people who are involved. I would also like to know whether that consultation will form part of the notification once the order has been made. Subject to those confirmations, the Conservative Party is prepared to accept amendment 174.

Photo of Colin Smyth Colin Smyth Labour

I welcome John Finnie’s amendment 174, which will lay the groundwork for much-needed simplification of the TRO and RSO processes. An onerous TRO process can often act as a barrier to a range of positive measures, from lowering speed limits to developing active travel infrastructure. Simplifying those processes will reduce the burden on local authorities at a time when resources are already incredibly stretched, and help to facilitate the changes that are needed to encourage a modal shift in our transport system.

The Government has repeatedly stated that it intends to review the TRO process and amendment 174 aligns well with that plan. Labour will vote for amendment 174 when the time comes.

Photo of Michael Matheson Michael Matheson Scottish National Party

Amendments 174 and 175 by John Finnie relate to the order-making process for redetermining the means by which the public right of passage over a road may be exercised.

Amendment 174 amends the Roads (Scotland) Act 1984. It replaces the existing power to make procedural regulations for redetermination orders—which is subject to a requirement for a local roads authority to refer an order to which objections are made, but not withdrawn, to the Scottish Ministers—with a wide power to make procedural regulations that is not subject to that requirement. I hope that members are still with me.

As I said during the stage 2 debate, any changes to the procedural requirements for such orders would require careful consideration of the balance between the needs of road users and maintenance of a robust and fair procedure for considering public objections. It is not considered appropriate to make any such changes at this particular point.

The Scottish Government has, however, committed to reviewing the procedures attaching to traffic regulation orders and roads orders. It is considered that the wider power conferred by amendment 174 would provide greater flexibility to respond to the outcome of that review—whatever that may be—than the existing power. It should be noted that the existing procedural regulations would remain in place during the review process and until any new regulations were made. Therefore, the content of any new regulations would be subject to consultation and would also be considered by the Parliament.

I therefore support amendment 174 and urge members to do likewise.

Given that Mr Finnie does not plan to move amendment 175, I will refrain from making any comment on it.

Amendment 174 agreed to.

Amendment 175 not moved.

Section 72—Regulations:

Amendments 126 and 176 moved—[Colin Smyth]—and agreed to.

Amendment 22 moved—[Graham Simpson]—and agreed to.

Amendment 127 moved—[Michael Matheson]—and agreed to.

Amendment 21 moved—[Neil Bibby].

The Presiding Officer:

The question is, that amendment 21 be agreed to. Are we agreed?

Members:

No.

Division number 18 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 48 MSPs

No: 55 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 48, Against 55, Abstentions 0.

Amendment 21 disagreed to.

Amendment 177 moved—[Graham Simpson].

The question is, that amendment 177 be agreed to. Are we agreed?

Members:

No.

Division number 19 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 48 MSPs

No: 55 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 48, Against 55, Abstentions 0.

Amendment 177 disagreed to.

Does any member object to a single question being put on amendments 128 to 134?

The Presiding Officer:

Will Mr Greene clarify which amendments are a concern?

Photo of Jamie Greene Jamie Greene Conservative

If it is helpful, I am happy for amendments 128 to 133 to be considered en bloc.

Schedule:

Amendments 128 to 131 moved—[Michael Matheson]—and agreed to.

Long Title:

Amendments 132 and 133 moved—[Michael Matheson]—and agreed to.

Amendment 134 moved—[Michael Matheson].

The Presiding Officer:

The question is, that amendment 134 be agreed to. Are we agreed?

Members:

No.

Division number 20 Transport (Scotland) Bill: Stage 3 (Day 2)

Aye: 73 MSPs

No: 30 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 73, Against 30, Abstentions 0.

Amendment

134 agreed to.

That ends the consideration of amendments.