Scottish Parliament
Transport and the Environment Committee
Official Report

Meeting No 6, 2003

contents page 18 March 2003

Scottish Parliament

Transport and the Environment Committee

Tuesday 18 March 2003


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[THE CONVENER opened the meeting at 11:05]

The Convener (Bristow Muldoon): Welcome to the sixth meeting this year of the Transport and the Environment Committee. I must disappoint members. We had hoped to conclude all our business today so that this meeting would be our last. However, Callum Thomson, the clerk, advises me that the Subordinate Legislation Committee is likely to continue until next week its consideration of some of the statutory instruments that we had put on today's agenda. It will therefore not be possible for us to consider those instruments.

Agenda item 7 concerns a number of statutory instruments. The only one that we will be able to consider today is the Strathclyde Passenger Transport Authority (Constitution, Membership and Transitional and Consequential Provisions) Amendment Order 2003 (SSI 2003/128). I propose that we defer consideration of the other statutory instruments until next week. I hope that that meeting, which is timetabled for 3 pm next Tuesday, will not be lengthy. I am sorry for any inconvenience that the extra meeting will cause members, but it is unavoidable, as the Subordinate Legislation Committee has indicated to us that it is likely to continue until next week its consideration of at least some of the instruments.

We have had only one apology for today's meeting, which is from Fiona McLeod, who is unable to attend.

Items in Private

The Convener: I ask members to agree to take items 5 and 6 in private. As a final adjustment to the agenda, I suggest that, if we take items 5 and 6 in private, we consider the statutory instrument after item 4, in advance of those two items. Does the committee agree to take that course of action?

Members indicated agreement.

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Sites of Special Scientific Interest and Special Protection Areas (Arran, Barra and Yell) (PE462, PE463 and PE464)

The Convener: We have a number of petitions to consider. Petition PE462, from Mrs Margie Currie, PE463, from Councillor Donald Manford, and PE464, from Mr Robert Cunyngham Brown, all relate to Scottish Natural Heritage's consultation procedures.

It is clear that, at this stage in the parliamentary session, we are not in a position to carry out any substantial work on the petitions. The committee faces a choice. One option is to refer the petitions back to the Public Petitions Committee so that they can be passed on to our successor committee after the election. The other option is to conclude consideration of the petitions at this stage, on the basis that there is a strong likelihood that, early in the next session, there will be an opportunity for the issues to be addressed as part of the scrutiny of a nature conservation bill, which has a high chance of being introduced in that session. I look to members for their views about which of those options—or any other option—they wish to adopt.

Robin Harper (Lothians) (Green): Are the options mutually exclusive? Would it not be better to be on the safe side and refer the petitions back to the Public Petitions Committee? That would mean that they would at least be sent to our successor committee for discussion if, for any reason, the nature conservation bill were delayed for another six months to a year. At this stage, we simply do not know what the new Administration's priorities will be or, indeed, who the new Administration will be. Would it not therefore be safer to refer the petitions to the Public Petitions Committee so that it could refer them back to our successor committee at the beginning of the next session?

The Convener: That would be a perfectly acceptable position for us to adopt.

Maureen Macmillan (Highlands and Islands) (Lab): I agree with Robin Harper. I know that there is often local tension between SNH and communities. The Executive is saying that it acknowledges the need for greater transparency and wider consultation. It wants to involve a broader range of stakeholders, including local communities. As Robin Harper said, we want to ensure that, if the bill is delayed for any reason—and we know that bills can be delayed—something happens to alleviate any tensions that may arise.

John Scott (Ayr) (Con): I agree with everything that has been said so far, but I believe that

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imposition of the designations should be delayed until the bill is introduced. One of the recommendations, which is to be found at paragraph 15 of the clerk's paper, is for a review of SNH's consultation procedures and consideration of whether an appeals procedure should be put in place to examine the scientific validity of SNH's claims. I believe that such a review is vital. I reiterate my view that the designations should not be imposed until the proposed nature conservation bill is introduced or a review of SNH has been undertaken.

The Convener: My opinion is that the committee could not legitimately take that position without having studied the issue in considerably more detail. It would not be appropriate for the committee to draw such a conclusion on the basis of absolutely no evidence. I do not favour that approach, although I will be guided by the views of other members.

Bruce Crawford (Mid Scotland and Fife) (SNP): John Scott's second point was about a review of SNH's procedures. I say to him that, as part of the bill procedure, it is inevitable that the successor Transport and the Environment Committee will take evidence from witnesses. I am certain that any proposals will generate considerable comment not only from SNH, but from the various bodies throughout Scotland who feel aggrieved by SNH's actions.

As part of the bill scrutiny process, witnesses will come before our successor committee to express their concerns about the way in which SNH has dealt with sites of special scientific interest and other designations and the way in which SNH has allowed communities to participate. Even if witnesses did not want to raise those issues, I would want them to be put on the table; we need to prise out that information.

It is inevitable that the proposed bill will set out how SNH should go about its business in future and perhaps what guidance the Executive should give. John Scott's concern is whether we should do something now or whether a future Transport and the Environment Committee should consider the issue as part of a bill process. I believe that the committee cannot start to take decisions until we have had an opportunity to investigate the matter.

Robin Harper: I would like to record my fundamental disagreement with John Scott's second point, which would be an unsafe recommendation for the committee to make. It would prejudge SNH before we have even taken evidence. On the balance of the evidence that I have read so far, in the majority of cases there is good justification for the creation of the SSSIs.

John Scott: I do not dispute the justification for the creation of the SSSIs and I am not against

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their creation. However, the petitioners need a response to their petitions and we should not write them off, saying that it is bad luck that the petitions arrived at this point. Members may say that we lack the powers to make a difference and that we have to wait for new legislation. In the meantime, however, the designations will be imposed on the petitioners. The designations should be postponed until the bill is introduced or a review of SNH is undertaken. The petitioners have given evidence to this committee and to the Public Petitions Committee and their views must be taken into account.

The Convener: The consensus seems to be that we should refer the petitions back to the Public Petitions Committee so that they can be considered after the election. I recognise that John Scott wishes to go further, but I do not hear anyone else agreeing with him. We will refer the petitions back to the Public Petitions Committee. After the election, our successor committee will take account of the issues that the petitions raise when it considers the proposed nature conservation bill.


Robin Harper: We should make it clear that that is why we are referring the petitions back to the Public Petitions Committee. If the nature conservation bill is delayed for any reason, our successor committee should reconsider the petitions.

Bruce Crawford: We should add one small caveat. I cannot imagine the circumstances in which this would happen, but if for whatever reason a nature conservation bill does not arrive on the table, we will need to come back to the petitions and take on board the points that the petitioners have made.

The Convener: I accept that. That can be noted.

John Scott: We all agree that the system needs greater flexibility, as is noted in the clerk's paper. We hope that the nature conservation bill will deal with the issue but, if it does not, our successor committee will, as Bruce Crawford rightly said, have to deal with that situation.

The Convener: Indeed. Is it agreed that we refer the petitions back to the Public Petitions Committee?

Members indicated agreement.

Planning Process (PE508)

The Convener: PE508 is on the implementation of environmental impact assessments, about which we took evidence from the Deputy Minister for Social Justice two weeks ago.

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I look to members for guidance on how they wish the committee to deal with the petition. We could decide to conclude our consideration of the petition by noting the Executive's willingness to consider undertaking research into environmental impact assessments. Obviously, that research would also consider whether consultation with communities should be beefed up. It would then be open to the committee to decide whether it was satisfied with the outcome and conclusions of the Executive's research.

Another option would be to make a firm recommendation that such research be carried out and to draw to the Executive's attention specific areas that we think should fall within the remit of the research. What are members' views on how we should conclude our consideration of the petition?

John Scott: I agree with the recommendation that is given and I agree with everything that the convener has said. Further research should be carried out, particularly on whether there are conflicts of interest. If independent research could determine whether the problem was real or imagined, that would put minds at rest.

Robin Harper: I would like to see further research not only on terrestrial EIAs, but on EIAs for aquaculture. There is a crying need for a review of the way in which such EIAs are implemented.

The Convener: For a second, I thought that Robin Harper was about to ask for research into extra-terrestrial EIAs.

Bruce Crawford: Given this morning's announcement of the discovery of 120 soundings from extra-terrestrial bodies, perhaps Robin Harper is closer to the reality than we expected.

John Scott: That probably falls outwith our brief.

Bruce Crawford: Yes. It probably comes under culture, as you cannot get hold of it.

I think that we should perhaps go a bit further than asking for more research. Before we heard evidence from the minister and his officials on future strategic planning issues, we discussed whether it might be wise to ask the Executive to respond to the issues that the petition raises by including the whole area of environmental assessments in its review of strategic planning. We should go that step further by saying that we expect environmental assessments to be part of that wider strategic review. So far, the Executive has not said that it would do that. When and if a bill or new regulations are placed in front of us, we would then have research material and could get witnesses round the table to discuss the issue.

Maureen Macmillan: I would not want us to

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give the impression that EIAs are necessarily flawed because they are conducted by the person who wants the development. Robin Harper mentioned aquaculture. I have seen the EIAs that the fish farming firms have done—those assessments are detailed and extremely thick and I have no doubt that they are done well. I do not want us to give the impression that we think that there is some sort of sleight of hand. There might be problems occasionally, of course.

Nora Radcliffe (Gordon) (LD): We are being asked what issues the research should address. People might think the process more transparent if the planning authority commissioned the EIA and charged the developer to recover costs. That would not cost anyone any more money, but it might give people more confidence in the system.

John Scott: Just as we expect to deal with a nature conservation bill in the next session of Parliament, we may want to deal with environmental assessments through the new planning bill that whoever forms the Government after the election will introduce in the next session. We should ask the Executive to deal with the matter in that way.

Robin Harper: On the concerns of the petitioner, we should ask for the research to be carried out with a view to revising planning advice note 58. That should address some of the petitioner's concerns.

The Convener: If we said that there should be a revision before we have carried out the research, we would be in danger of making decisions before analysing the evidence.

I am picking up that members support research into EIAs and want to recommend that the Executive conduct such research. We seem to feel that that research should consider statutory requirement for public consultation in advance of the production of an EIA, the weight that is given to evidence produced by SNH and the Scottish Environment Protection Agency and the role that the EIA has in influencing the decisions of planning committees. We could also mention Bruce Crawford's comment about including EIAs in the strategic review.

Nora Radcliffe: We should add the issue of whether the body that commissions the EIA should be the planing authority or the developer.

The Convener: That can be added. Do members agree to write to the Executive making those points and to conclude consideration of the petition, writing to the petitioner to advise him of the recommendations that we are making?

Members indicated agreement.

The Convener: Before we begin the next item on our agenda, we will suspend the meeting to

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allow the minister and his officials to take their seats.


Meeting suspended.

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On resuming—

Railways and Transport Safety Bill

The Convener: I welcome to the Transport and the Environment Committee, for the last time in this parliamentary session, I suspect, the Deputy Minister for Enterprise, Transport and Lifelong Learning and his officials Caroline Lyon, Andrew Maclaren and Derek Willis.

This agenda item relates to a Sewel motion on the United Kingdom Railways and Transport Safety Bill. The Sewel motion is due to be debated on 20 March in Parliament, which will be invited to endorse the principle of introducing alcohol and drug testing for mariners, as set out in the bill, and to agree that the relevant provisions in the bill that impact on devolved matters should be considered by the UK Parliament. In order to aid that process and inform the debate in the chamber, Lewis Macdonald is here to answer members' questions.

There are no formal procedures in standing orders to allow the committee to report to Parliament our views on the Sewel motion, so we do not have to adopt a position today. Our aim is to ensure that Parliament's consideration of the Sewel motion is aided by members' understanding of the issues. The minister will make some introductory remarks before answering questions.

The Deputy Minister for Enterprise, Transport and Lifelong Learning (Lewis Macdonald): I am grateful to the committee for allocating time for the consideration of the Sewel motion, which relates to important issues concerning drug and alcohol testing for mariners. I am happy to summarise the key points involved and to recommend consent to the Sewel motion.

We need to bring the issue to the committee's attention because judgments elsewhere in the UK have created some ambiguity about interpreting the legislation. We want to make the position clear and remove those ambiguities. We believe that the principles of the bill will command wide support and that it is right that we should seek to have consistency across the UK on the issue of maritime safety.

The memorandum sets out how the UK Government's policy on the issue has evolved. Alcohol and drug testing was proposed following reviews of river safety after the Marchioness disaster on the River Thames in 1989. Recommendations were made for legislation to introduce alcohol testing for mariners similar to the arrangements that apply to motor vehicle drivers. Those recommendations were accepted by the UK

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Government and have been included in the Railways and Transport Safety Bill, which is currently before the Westminster Parliament.

I will summarise the key points that deal with alcohol and drug testing for mariners. The bill will make it an offence to undertake certain maritime duties while over the prescribed blood alcohol limit and will allow for testing to be conducted. The proposed limit will be set at 80mg of alcohol per 100ml of blood, which is the same limit as applies on the roads. The limit will apply to all on-duty professional mariners and to certain mariners off duty who have a safety responsibility such as for the evacuation of a vessel.

The bill will also apply to recreational mariners who are involved in navigating a vessel. In due course, the UK Government will consult on how narrowly that application should be defined. However, the clear intention is to cover all those whose actions might have an impact on safety.

It is intended that the bill will apply to all sectors and waters in and around Scotland. That means applying the rules to all craft, such as personal watercraft or jet-skis. It is also intended that the bill should apply to inland waterways as well as to coastal waters.

There are two areas where possible ambiguities have arisen from court decisions elsewhere. First, the courts have found that mariners simply messing about in boats on an inland waterway were not strictly speaking involved in navigating as defined in the Merchant Shipping Act 1995. The bill deals with that by extending the definition of navigation to include any role that relates to the control or direction of the course of a vessel. Secondly, case law has found that not all pleasure craft are covered by the definition of a ship in the Merchant Shipping Act 1995. The bill deals with that by extending the drink and drugs provisions to cover all types of craft, including jet-skis and personal watercraft.


The definitions of a ship and navigation technically qualify as matters of devolved competence because they are not explicitly covered by the reservations that relate to maritime safety under the Scotland Act 1998. We have therefore come to the view that we should take the opportunity to apply the legislation in Scotland fully. There will be wide agreement that maritime safety is a vital issue and that there is a strong case for the rules to be applied consistently throughout the UK, as happens at present.

It is important to see the devolved aspects of the issue in context. Clearly, the provisions involved apply to all other maritime sectors, such as ferries, merchant ships, fishing vessels and cargo ships.

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Shipping policy and maritime safety issues, including alcohol-testing rules, are reserved matters.

On that basis, we are keen to avoid any potentially anomalous situations arising about how organisations such as the Maritime and Coastguard Agency, the Northern Lighthouse Board and the marine accident investigation branch of the Department for Transport should respond within a UK legislative framework. We also want to avoid any delay to the application of the measures in Scotland, because they will be a useful deterrent to future incidents.

The Sewel motion is the best course of action in the circumstances. I would have liked to have brought the issue to the committee before now, given that the UK bill is currently before the Westminster Parliament, but clearly the priority for our colleagues there was to reach agreement on how the proposed legislation would apply to devolved matters. This is a good example of how we can use the Sewel motion process in a constructive way that does not impinge on the devolution settlement or on the powers of the Scottish Parliament and that introduces provisions that will benefit the people of Scotland. On that basis, I look for the committee's support and I am happy to answer any questions.

Elaine Thomson (Aberdeen North) (Lab): I am sure that many people will welcome the bill, which will go a long way towards improving maritime safety. The minister will be well aware of the difficulties with drug and alcohol misuse in some north-east villages and town. The bill will be helpful in that regard.

However, I would like to ask a few questions. Under what circumstances will the bill be used? Will the process be similar to what happens when someone has a car accident and is automatically tested for the level of alcohol? In what other circumstances might someone be tested for alcohol or drug misuse? Moreover, does the UK Government or the Scottish Executive intend to run a public awareness campaign to promote the legislation and safety at sea and on inland waters?

Lewis Macdonald: The answer to your first point is straightforward. The rules will be enforced on the same basis as alcohol testing is enforced on the roads. A person may be tested in the event of an accident or if the police have reasonable grounds for suspicion that that person is under the influence of alcohol or drugs. There will be no random testing; it will be done on the same basis as for road offences.

How the proposals are advertised will be a matter for the UK Government. However, I expect that the UK Government will be keen to ensure that people are aware of the application of the new

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rules. I think that the provisions will attract a lot of interest because, although there have been few incidents of late at sea or on inland waters that can be attributed to alcohol misuse, we are all well aware that the potential exists.

Maureen Macmillan: The bill reminds me of an incident from my past involving the Ballachulish ferry on new year's day, a bottle of Chivas Regal drunk on the north side and a ferry that could not dock on the south side. The ferry went up Loch Leven and anchored and there was a stand-off with the police. Later, the Oban Times reported that someone had been charged with being drunk in charge of a ferry. The experience was frightening for everyone on board. I had assumed that such legislation was in place and I am rather concerned that we now have to amend the law.

My question is about pleasure craft. At an event such as the west Highland regatta, a fair bit of alcohol is probably consumed as part of the whole experience of racing from, say, Oban to Tobermory. I am aware the legislation could stop people drinking while they are sailing, but what about when they are aboard their boats in the evening? Under the legislation on road traffic, a person is considered drunk in charge of a motor vehicle even if they are not driving it—if someone is simply sitting in their car drunk they can be charged. I would like to think that people could have parties in Tobermory bay on the evening of the regatta without the police coming along and saying, "Sorry, you're drunk in charge of your yacht," and taking them off to the cells. I wonder what you will do in such cases, where the law obviously cannot be applied in the same way. How will you police the situation? Who will patrol the seas, looking out for drunken yachtsmen?

Lewis Macdonald: There are a number of questions there. You are right that it would be unfortunate and not the intention if the bill resulted in an end to entertaining times at regattas and people enjoying themselves in harbours. John Spellar, the UK minister in charge of the bill at Westminster, has made it clear that he wants to find a way of making sensible exemptions, so that the law is applied in a way that achieves its purpose, which is to improve the safety of vessels at sea and of those using them. The UK Government's intention is to consult on the means by which exemptions might be made. Mr Spellar has made it clear that his intention is to make exemptions for recreational mariners under certain circumstances. The issue is about finding a sturdy legal definition of what those circumstances would be and whether any vessels—for example, those without engine power or those with low engine power—might be exempted altogether. Those are matters on which there will be consultation in due course in order to reach broad agreement on the way forward.

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The distinction is between the kind of case that you mentioned at the outset, in which drunkenness poses a threat to the individual and to others who are using the same vessel or the same waters, and the use of alcohol by recreational mariners in a way that does not pose a threat to anybody. Determining the legal line is a matter that will follow in the secondary legislation. What is important from our point of view is that there is no ambiguity in the primary legislation about the ability of the regulations to cover all types of vessel. That is why the aspect that we are discussing has to be covered in the Scottish Parliament.

Bruce Crawford: Given that the issue is one of criminal law, why has the Sewel motion come to the Transport and the Environment Committee and not to one of the justice committees?

The Convener: The Sewel motion will be considered by the full Parliament; our discussion of the motion is merely in order to aid that consideration. The motion has come to the Transport and the Environment Committee because it deals with transport safety.

Bruce Crawford: I understand that. However, the issue consists of huge chunks of criminal law. I would have thought it appropriate to give one of the justice committees the opportunity to express a view. It is up to the minister to consider what he might do with that suggestion.

Leading on from what Maureen Macmillan said, we have to consider not only parties in Tobermory bay, but the cruisers that use the Caledonian canal and tie up for an evening, as well as the many people involved in recreational angling in boats throughout Scotland, particularly during the fishing season in trout and salmon areas.

The type of vessel might be important, too. I see that we are talking about jet-skis—I presume that a small motorised fishing vehicle will fall into the same bracket, but will a rowing boat? If so, we are suddenly looking at an all-encompassing piece of legislation. That may or may not be right—I realise that the UK Government will make that decision. However, will groups such as the fishermen who fish Loch Leven—a different Loch Leven, in Kinross-shire—fall under the scope of the bill? Will the bill cover people who cruise on the Caledonian canal?

Lastly, what consultation did the Scottish Executive undertake with various recreational sectors throughout Scotland before the Sewel motion was brought to us? I would like to know what the reactions were.

Lewis Macdonald: There are a number of important points. First, to clarify my answer to Maureen Macmillan, the consultation will be on areas of exemption such as for a yachtsman who

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has anchored in Tobermory bay, goes ashore for the evening and then rows back out to the vessel. Clearly, an exemption should be considered for the process of getting from the harbour to the vessel using another vessel. Where a vessel is moored, there is no question of the legislation applying. The provision will apply to

"a ship which is under way".

That is the key phrase. In other words, a vessel that is moored will not, by definition, be covered by the bill. I hope that that provides reassurance.

You ask about the type of vessel. As I mentioned, the ambiguity in the law arises from a court decision that was made south of the border. Whether a jet-ski is or is not a ship is ambiguous, because the question relates to whether one sits in a vessel but on a jet-ski. That may seem an obscure point, but in that sense there is no ambiguity about the status of a rowing boat—it is a vessel, so it is a ship in terms of the Merchant Shipping Act 1995. The question whether an exemption should be applied to a person rowing a rowing boat—in other words, when the boat is under way—will be covered by the regulations. Clearly, however, a rowing boat that is not under way would not be covered, just as no other vessel at mooring would be covered.

Finally, the consultation has been conducted by the Department for Transport and I understand that it has been wide ranging. It has included the police, who would be the enforcement agency, as well as those who are involved in the industry.

Bruce Crawford: Did those who were consulted in Scotland include the organisations that are involved in recreational activities on our inland waterways, such as those who use the Caledonian canal and the fishermen who fish our inland lochs? Were the various umbrella organisations consulted?

Andrew Maclaren (Scottish Executive Development Department): My understanding is that the UK consultation encompassed Scottish organisations. For example, the Royal Yachting Association Scotland is an off-shoot of the Royal Yachting Association in the UK and has hundreds of affiliated clubs and associations. I understand that the UK-wide consultation covered all those interests.

Lewis Macdonald: The Royal Yachting Association is one of our standard consultees. I am sure that that Scottish Fishermen's Federation is another.

Bruce Crawford: That does not include anglers, however. The biggest participatory sport in this country is angling. Were anglers consulted? They are a key group. We should think about their recreational habit and the way in which—I am

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trying to be as kind as I can, convener—they tend to enjoy themselves as part of their sport. Will the law suddenly come into conflict with large sections of the community who have been legitimately going about their business for a long time?

Lewis Macdonald: I expect that when the Department for Transport consults on exemptions, it will take a commonsense approach. One aspect that it is considering is the exemption of all vessels that are not powered. That would cover most of the cases that, I suspect, were in Bruce Crawford's mind when he posed the question.

Robin Harper: Do you have up-to-date figures on the number of accidents caused by jet-skis? Can you reassure us that the intention of the secretary of state under part 4 of the bill is to treat jet-skis as ships?

Lewis Macdonald: To take the second question first, yes, it is intended to extend the definition of "ship" to cover that anomalous point. On accidents, I refer to a couple of relevant incidents, one involving a high-powered motor boat and the other involving a jet-ski, both of which occurred in England in 2001. One of them involved a fatality and the other involved criminal charges being brought. Those are the most recent examples. The problem is not on the scale of drug or drink abuse by road vehicle users, but there is nonetheless a problem that needs to be addressed.

The Convener: If there are no more questions, that concludes our consideration of the issue. There is no provision under standing orders for the committee to report on the Sewel motion. The aim of the discussion was to aid members' understanding of the issue when it comes before the full Parliament. I thank the minister for giving evidence today. I hope that we will be able to avoid a constitutional crisis over the legislation to control jet-skis.

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Subordinate Legislation

Strathclyde Passenger Transport Authority (Constitution, Membership and Transitional and Consequential Provisions) Amendment Order 2003
(SSI 2003/128)

The Convener: The next item is consideration of the Strathclyde Passenger Transport Authority (Constitution, Membership and Transitional and Consequential Provisions) Amendment Order 2003 (SSI 2003/128). No members have raised any points on the instrument and no motions for annulment have been lodged. Can I confirm that the committee has nothing to report on the instrument?

Members indicated agreement.

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Meeting continued in private until 11:48.

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© Scottish Parliament 2003
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