The Scottish Government

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BRITISH TRANSPORT POLICE FORCE CONSULTATION RESPONSE

BIGGART BAILLIE LLP

Fraser Henderson Esq

Transport Strategy

20 - Dockside

Scottish Executive

Victoria Quay

EDINBURGH

EH6 6QQ

Our Ref: NMA/115.538

Dear Fraser

Transport & Works (Scotland) Act Secondary Legislation Consultation -British Transport Police Force ("BTP") and British Transport Police Authority ("BTPA")

I set out below replies to each of the consultation questions on behalf of British Transport Police Force ("BTP") and British Transport police Authority ("BTPA").

Application and Objections Procedure Rules

A1. Are the consultees mentioned under Rule 8(1)(e) with whom applicants are expected to consult appropriate and comprehensive? Are there any bodies that should be added to or deleted from Schedules 3 and 4?

A1.1 ORR, Network Rail, "RPC, PTUC and BTP are listed in respect of works which would affect the operation of any existing railway, passenger or tramway services provided under statutory powers or the construction of a new railway for the provision of passenger transport, or any new tramway. The same parties are to be consulted in relation to works to construct a railway to which any regulatory provisions in the Railways Act 1993 would apply. That list, however, fails to include British Transport Police Authority.BTPA has a statutory duty to secure efficient and effective policing of the railway under Section 20 of the Railways & Transport Safety Act 2003. Accordingly, BPTA request that it is added to said list and any other list of statutory consultees for railway or tram related interfacing proposals.

Equally, whilst Network Rail and ORR are referred to, there is no reference to franchisees, Transport Scotland or DfT. The omission of rail freight interests is striking. One formulation would be to require notification of appropriate operators under licences or licence exemptions under the Railways Act 1993.

The role of the BRB (Residuary) Limited as the holder of the residue of British Railways Board's estate which may have strategic transport use is not expressly acknowledged.

Equally, there is no reference to the relevant bridge authority (which may be the local roads authority, Network Rail or BRB (Residuary) Limited depending on the circumstances) in respect of any works affecting a bridge, the abutments or approaches to the same.

A1.2 There is no reference to the Civil Aviation Authority, airport operator or NATS (En Route) plc or NATS (Services) Limited in respect of works at or adjacent to an airport. Equally, there is no reference to NATS (En Route) plc in relation to any works which may impact on air navigation or safety equipment or aids.

A2.In respect of rule 17 we welcome views on the level of fees for applications. In the last Parliament a commitment was given that charitable organisations would not pay a fee greater than the cost of applying for a Private Bill (which is currently £1,250). We would welcome views as to whether the same level of fee for an application should apply to private developers, public developers and charitable concerns. We do not want to set a fee level that will act as a disincentive for people to come forward, nor do we want the fee level to encourage proposals that have not been well thought through and therefore welcome views on the appropriate level or levels of fees for the various classes of applicants.

No comment.

A3. Are there any inconsistencies or unintended consequences in the rules as drafted?

A3.1 Rule 3 stipulates the applicant must send the Scottish Ministers, not later than 42 days before making an application:

(a) a draft of the proposed order;

(b) a draft explanatory memorandum to the order; and

(c) a draft of the statement and memorandum in respect of legislative competence.

It may be surmised that the Scottish Executive are to pre-vet applications, in particular in respect of their competence. The draft Rules, however, do not stipulate what purpose is to be served by this step in the procedure.

A3.2 Rule 5 provides for a "screening decision" under which the Scottish Ministers notify the applicant of whether or not an environmental impact assessment is required in relation to any proposed works which are to be covered by the order application. Rule 6 provides for a "scoping opinion" under which the Scottish Ministers provide an opinion as to the adequacy of information provided in the environmental statement. In both cases (Le. a screening decision and a scoping opinion) it is for the applicant to decide whether or not to apply for such (the draft provides that "an applicant may make a request"). Whilst Rule 3(3) provides that the applicant shall send not later than 42 days before making the application a draft of the applicant's statement of environmental information to the Scottish Ministers, SEPA and SNH, Rule 3 does not specify the purpose for which the statement is to be so submitted.

A3.3 Rule 4 entitles an applicant to serve notice on any party, which is not a Scottish public body for the purposes of the Environmental Information (Scotland) Regulations, requiring provision of environmental information relevant to a screening decision or for the preparation of the environmental statement to be submitted by the applicant. The absence of protection for the commercial confidentiality of the party in receipt of such a notice is striking, particularly when one bears in mind that at the stage at which information so required is being disclosed to the applicant, it is by no means certain that the proposed order will be granted or for that matter implemented and that compliance with the notice may lead to sensitive information entering the public domain following transmission of it to any of a number of public authorities.

A3.4 Rule 8(1)(e) requires that the application should include a report summarising the consultations undertaken, including confirmation that the applicant has consulted all those named in the column (2) of the tables in Schedules 3 and 4 where authority is sought for works or other matters described in column 1 of those tables, or if not, an explanation of why not. There is, however, no express pre-condition that consultations be undertaken. The absence of a clear duty in this regard would appear to be an omission from the draft.

A3.5 Rule 8(9) provides that the Scottish Ministers can direct the application to provide further information if the Scottish Ministers are not satisfied with the information submitted is adequate. There is, however, no express statement of the ability of the Scottish Ministers to reject an application or require resubmission in the event of failure to provide adequate / further information.

A4. What further legislative action, if any, should be taken to facilitate the effective operation of the proposed applications and objections procedure? What opportunities exist, for example, to shorten time frames or remove activities that may be perceived as redundant?

A4.1 Rule 7(3) provides for applications to be signed by the applicant or by the duly authorised agent of the applicant - in the latter case details of the authorisation are to be appended to the application. This latter requirement seems to fly in the face of basic concepts of the law of agency and established practice for statements by the legal profession in particular of items being submitted for and on behalf of the client being accepted at face value.

A4.2 Rule 12 deals with publicity for the application. Whilst Rule 12(2) refers to a newspaper publication of a notice in the form of Form 1 in Schedule 2, it is not clear why reference cannot be made to such a form of notice in respect of the publication in the Edinburgh Gazette and / or notification to the relevant parties in accordance with Schedule 4.

The extent to which providing that the draft Order and associated materials can be downloaded from a website or the extent to which soft copies mayor should otherwise be provided is also not clear.

A4.3 Although Rule 25 entitles the Scottish Minister to allow further time for the taking of any steps pursuant to the Rules, there is no express provision encouraging negotiation and withdrawal of objections and no express duty on the Scottish Ministers to allow time for negotiation or compromise agreement and thus withdrawal of objections. Crucially, there is no express duty upon applicants or objectors to seek to resolve objections.

A4.4 There is no provision for the publication of papers submitted under written representation (whether on the website or otherwise) or any right for an objector to seek the position being adopted by the applicant and/or other objectors.

Inquiries and Hearings Procedure Rules

B1. Are there any further efficiencies that could not be met in terms of the timing of pre-inquiry activities without causing problems for participants?

Please refer to comments in replies to A4 above.

B2. Do respondents agree that there is still reasonable opportunity for all interested parties to make relevant contributions at an inquiry or hearing?

There is provision at Rule 16 (6) for the reporter to refuse to permit the cross examination of persons giving evidence, or to require such cross examination to cease if it appears to the reporter that permitting or allowing such cross examination to continue would have the effect that the timetable for the inquiry set by the reporter could not be met.

This provision appears to create issues of balance on the reporter's handling of the inquiry particularly where one considers that Rule 9(1) states that the reporter may at any time vary the timetable and that Rule 9(1) specifies that if the reporter allows a party to alter and add to a statement of case the reporter shall (if necessary by adjourning the inquiry) give every other person entitled to appear an adequate opportunity of considering any fresh matter or document.

The reporter should only be able to refuse to permit cross examination where (a) there is a timescale problem AND (b) where, in the reasonable judgement of the reporter, (continued) cross examination would only provide information that is either immaterial or otherwise available to the reporter - and thus unlikely to assist him in reaching a soundly based recommendation.

B3. Should the requirement for a statement of case be retained despite its potential to be a rephrasing of the original representation?

Yes, statement of case allows for account of an evolving position on detailed understanding of proposals I accommodation works and on negotiations and other parties' positions to be incorporated.

B4. Are there any inconsistencies or unintended consequences in the rules as drafted?

When required by notice from the Scottish Ministers to do so, any party who has lodged a competent objection or has otherwise notified the Scottish Ministers of an intention or wish to appear at the inquiry will have 4 weeks to lodge their written statement. The absence of a requirement upon the Scottish Ministers to advertise the decision to hold an inquiry and an address for notification to the Scottish Ministers of an intention or wish to appear, seems to be an omission from the procedure.

Additionally, please refer to answer to B2 above.

B5. What further legislative action, if any, should be taken to facilitate the effective running of inquiries and hearings?

Whilst the Rules provide for notices, statements, etc to be copied to (or opportunities for copies to be taken by) other parties to the process, the rules do not expressly deal with such being done by way of a website, virtual data room or other electronic means. This appears to be a missed opportunity particularly in light of the way in which information was handled during the progression of recent Private Bills.

Consents

C1. Are the consents as listed appropriate? Are there any other consent regimes that could be usefully incorporated within the regulations?

No Comment

C2. Are there any inconsistencies or unintended consequences in the regulations as drafted?

No.

Access to Land on Application Order

D1. Does article 5 of the legislation request appropriate information? Is there too little or too much relevant information and if so what could usefully be dispensed with or be additionally required?

Please refer to reply to D4.

D2. Do consultees agree that the notices contained within Forms 1 and 2 provide all pertinent information in sufficient clarity as to be understandable by recipients?

Please refer to reply to D4.

D3. Are there any inconsistencies or unintended consequences in the order as drafted?

BTP and BTPA would sincerely hope that all promoters and their agents will respect the public safety and security imperatives of not disrupting police operational efficiency and effectiveness. BTP and BTPA nonetheless request a saving provision to that effect both the decision to grant access and any conditions attached to the same shall have due regard to any policing implications and that the applicant and the Scottish Ministers shall consult with BTP and BTPA in that regard/

D4. What further legislative action, if any, should be taken to facilitate the effective operation of the proposed procedure?

D4.1 Article 5(5)(a) requires provision of a certificate of liability insurance. It is not clear whether such insurance is for third party or public liability and/or for professional indemnity cover for those carrying out or directing the work.

D4.2 Article 5(7) provides that the Scottish Ministers may dispense with the requirement to provide the certificate of liability insurance "In any case where they consider it appropriate to do so." This begs the question as to what such grounds might be.

D4.3 Article 5(5)(e) requires the applicant to provide a report of the reasons as to why entry to land is required and why that cannot be achieved without such entry. Given the potential for disruption to be caused by entry being taken, it may also be appropriate for the report in question to be extended to include an explanation of why entry cannot be delayed until the proposed order is granted.

D4.4. Article 6 provides that the applicant is to notify not only the owner and every tenant and occupier of the land in question but also the relevant local authority and any National Park authority. The rationale for the additional notifications is not clear. Equally why SEPA is not to be notified is not clear.

D4.5 Article 8(3) provides that authorising the applicant to take entry to land, the Scottish Ministers may attach such conditions limitations to the authorisation as they consider appropriate. Article 8(4) provides a non-exhaustive list of conditions and limitations which may be attached. These include requiring the making good of any damage done entering or in consequence of entering the land and requiring the provision of a guarantee, bond or other security to secure performance of the applicant's obligations.

To provide better comfort to the owner or occupier of the land to which access is taken, consideration ought also to be given to conditions requiring:-

1. Fencing and site security.

2. Method statements and safety cases.

3. An explicit requirement to indemnify the owner/occupier.

4. Provisions in relation to maintaining commercial confidentiality and non disclosure. There may be a need for a balance to be struck in terms of data being used for the purposes of preparation of material in support of an order application and any inquiry following thereafter. There should, however, be no reason why confidentiality cannot be required where disclosure and/or entry into the public domain is not otherwise necessary. This may ease concerns regarding how mature or certain a proposed project is before access is granted.

5. An explicit requirement that the applicant shall be responsible for obtaining any statutory or third party consents necessary for the purposes for which access is to be taken; and

6. Provision of copies of all data, non factual and interpretative reports arising from the site investigations to be given to the owner/occupier and in that regard for any samples taken to be split in order that the owner/occupier receives a sample for verification purposes of it so wishes.

D4.6 Article 10 provides that where the exercise, or in consequence of the exercise of the power of entry of an applicant, damage is caused to the land or any of the property in, on or over the land and that damage has not been made good by the applicant, the owner (and any person having interest in the land or property) may recovery compensation from the applicant. Article 10 also provides for recovery of compensation from the applicant where the owner or a tenant/occupier of the land is disturbed in their enjoyment of the land. Article 10 provides any dispute as to the amount of compensation payable is to be referred to and determined by the Lands Tribunal for Scotland.

The basis of calculating compensation is, however, not specified.

It should be noted that it has been acknowledged in the course of consideration of several Private Bills in recent years that the standard compulsory purchase compensation regime was not able to adequately compensate parties in the railway industry for operational disruption due to the complexities of the contractual matrix of that industry.

Where the efficiency or effectiveness of policing are affected, compensation may not be a sufficient remedy.

D5. What further legislative action, if any, should be taken to ensure that the reasons for requesting access are not merely speculative or for purposes unconnected with investigating a proposed transport development?

Article 4 provides that no application may be made by an applicant unless the applicant is considering making an application for an order to be made under Section 1 of the Act and has attempted to obtain entry to the land with the agreement of the owner and every tenant and occupier of that land. Given the issues which are raised in the replies to 04 above, the vagueness in the expression "is considering making an application" may be open to abuse.

Consideration should be given to the imposition of a key stage test to that applications can only be made in respect of projects with a realistic chance of proceeding.

Access to Land by the Scottish Ministers Order

E1. Do consultees agree that the notices contained within Forms 1 and 2 provide all pertinent information in sufficient clarity as to be understandable by recipients?

Please refer to replies to D4.

E2. Are there any inconsistencies or unintended consequences in the order as drafted?

Please refer to replies to D4.

E3. What further legislative action, if any, should be taken to facilitate the effective operation of the proposed procedure?

Please refer to replies to D4.

Finally, I enclose a copy of Annex H to the Consultation Paper (Respondee Information Form) duly completed.

Yours faithfully

Neil Amner

Partner

For Biggart Baillie LLP Transport & Warks (Scotland) Act 2007 - Secondary Legislation consultation

Scottish Executive

Publications

Transport & Works (Scotland) Act 2007 - Secondary Legislation consultation

Annex H

RESPONDEE INFORMATION FORM: Consultation Paper on the secondary legislation of the Transport & Works ( Scotland) Act 2007.

Please complete the details below and return it with your response. This will help ensure we handle your response appropriately. Thank you for your help.

Name: Neil Amner, Biggart Baillie LLP

Postal Address: Dalmore House, 310 St Vincent Street, Glasgow, G2 5QH

1. Are you responding: (please circle Y/N)

(a) as an individual N go to Q2a/b and then Q4

(b) on behalf of a group/organisation Y go to Q3 and then Q4

INDIVIDUALS

2a. Do you agree to your response being made available to the public (in Scottish Executive library and/or on the Scottish Executive website)?

Yes (go to 2b below) Y/N

No, not at all Y/N We will treat your response as confidential

2b. Where confidentiality is not requested, we will make your response available to the public on the following basis ( please tick one of the following boxes)

Yes, make my response, name and address all available Y/N

Yes, make my response available, but not my name or address Y/N

Yes, make my response and name available, but not my address Y/N

ON BEHALF OF GROUPS OR ORGANISATIONS:

3 The name and address of your organisation will be made available to the public (in the Scottish Executive library and/or on the Scottish Executive website). Are you also content for your response to be made available?

Yes

SHARING RESPONSES/FUTURE ENGAGEMENT

4 We will share your response internally with other Scottish Executive policy teams who may be addressing the issues you discuss. They may wish to contact you again in the future, but we require your permission to do so. Are you content for the Scottish Executive to contact you again in the future in relation to this consultation response?

Yes

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