Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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Law and change: Scottish legal heroes

3 Other ways to become involved

There are also other ways to become involved in petitioning for legal change. Two which you may have come across are:

  • Private Members’ Bills

Individual Members of Parliament have the power to introduce their own legislation known as a ‘Private Members’ Bill’. Private Members’ Bills may be the result of an MSP or MP being approached for support for a proposal put forward by particular interest groups operating outside Parliament. Private Members’ Bills in the Scottish Parliament may also originate from a Scottish Government suggestion to an MSP that they propose a particular measure.

  • Pressure groups

A pressure group can be described as an organised group that exists for the purpose of permanently representing particular interests. Pressure groups do not generally put up candidates for election but seek to influence government policy or legislation. They can also be described as ‘interest groups’, ‘lobby groups’, ‘campaign groups’, or ‘protest groups’. In the UK, the number of political parties is very small, whereas the number of pressure groups runs into thousands. A pressure group can be a huge organisation like the CBI (Confederation of British Industry), which represents approximately 150,000 businesses, but it can also be a single-issue, locally based organisation.

The aim of all pressure groups is to influence the people who actually have the power to make decisions. Pressure groups provide a means of popular participation in national politics between elections. They are sometimes able to gather sufficient support to force government to amend or even repeal legislation. You came across some examples of this in Week 7.

Now attempt Activity 3 which explores a change in the law made though the enactment of a Private Member’s Bill in the Scottish Parliament.

Activity 3 High hedges

Timing: Allow about 20 minutes

This activity is in two parts.

Part 1

The High Hedges (Scotland) Bill was a Members’ Bill introduced in the Scottish Parliament on 2 October 2012 by Mark McDonald MSP. The Scottish Government supported the Bill.

Figure 9 and Figure 10 Examples of high hedges

The Bill was seeking to provide a solution to issues where the high hedges of one neighbour interfered with other neighbours’ enjoyment of their property. High hedges can restrict light, damage property and generally restrict the enjoyment of a garden. The Bill provided that where a hedge has been defined as a high hedge, an owner or occupier of a domestic property may apply to the relevant local authority for a high hedge notice. Local authorities were to have new powers to issue high hedge notices to owners of hedges specifying the work, if any, to be carried out to remedy problems and prevent their re-occurrence. If the owner of the high hedge failed to comply then the local authority could carry out the work and recover the costs of carrying out the work.

Although high hedges may impact on only a proportion of individuals, the work, damage and issues caused can be significant.

Make a list in the box below of anyone you think may have an interest in commenting on the draft Bill or of any association that may wish to comment on the draft Bill.

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Comment

There is no one correct answer to Part 1. This part was designed to get you thinking about the Bill and which organisations or individuals may respond to a request for comments.

Part 2

Read the following extract from a briefing on the committee hearing of the Stage 1 of the Bill and make a note of:

  • a.the organisations that made representations
  • b.what the main debate was about.

The Stage 1 hearing - 5 February 2013

The definition of a high hedge as provided in the Bill as introduced was, undoubtedly, the key issue raised by witnesses who gave evidence to the Local Government and Regeneration Committee (“the Committee”) at stage 1. The Bill as introduced defined a high hedge as one which:

  • is formed wholly or mainly by a row of 2 or more evergreen or semi-evergreen trees or shrubs;
  • rises to a height of more than 2 metres above ground level; and
  • forms a barrier to light

The definition is similar to those used in England and Wales and in Northern Ireland and is intended to capture the commonly perceived problem of fast-growing conifers in suburban areas. Under the Bill as introduced, a single tree is not considered to be a high hedge.

Most of the written and oral evidence received by the Committee commented on this aspect of the Bill. Opinion varied between those witnesses who believed that the definition should be expanded to include other forms of vegetation, such as single and deciduous trees, while others favoured retaining the definition as set out in the Bill as introduced. Other witnesses believed that the definition should be narrowed even further to provide protection to various types of evergreen or semi-evergreen species (e.g. yew or juniper).

The campaign group Scothedge, while being strongly supportive of the introduction of the Bill, argued that the definition should be expanded to include single evergreen or deciduous trees. While acknowledging that the definition in the Bill broadly replicates those in England, Wales and Northern Ireland, they stated that:

“Our preferred definition is the one that is used in the Isle of Man, because it is a wide definition. The wording is about something that stops people having reasonable enjoyment of a property….We prefer the Isle of Man definition because it allows all the cases to be made. People can make a complaint and their case can be considered. If we do not do that, the danger is that people will just switch species. Believe me; our experience is that some pretty unscrupulous people are growing these hedges.”

(Scottish Parliament Local Government and Regeneration Committee 2012a).

Other witnesses giving oral evidence were unanimously opposed to the expansion of the Bill to include single trees. For example, Dr Maggie Keegan of the Scottish Wildlife Trust argued that the principle intention of the Bill should be to:

“….capture leylandii and other trees such as western red cedar that have little biodiversity value”. (Scottish Parliament Local Government and Regeneration Committee 2012a).

Dr Keegan suggested that the definition in section 1 of the Bill could be amended to specifically identify non-native evergreen and semi-evergreen species.

Aedán Smith of the RSPB highlighted what he saw as the advantages of retaining the definition of a high hedge as set out in the Bill as introduced:

“The current definition has the merit of simplicity, which has obvious benefits in terms of administration and management if the implementation of the bill is progressed. As Dr Keegan said, the current definition is likely to mean that hedges and trees that, broadly speaking, are of higher biodiversity value—those tend to be native species—will not be captured by the bill. Our primary concern is that there should not be an adverse impact on wildlife or biodiversity, and the current simple definition means that adverse implications for wildlife are less likely.”

(Scottish Parliament Local Government and Regeneration Committee 2012a).

The Scottish Tree Officers Group (“STOG”) represents local authority tree officers who will have primary responsibility for implementing and managing the high hedge notice system under the Bill. In their evidence to the Committee they expressed some concerns in relation to the definition of a high hedge in section 1 of the Bill. STOG felt that this definition may be draw too widely and could lead to the removal of trees and hedges of historic and biodiversity value.

In its written evidence STOG provided an example where the Bill may give rise to a problem where two evergreen trees could be planted 5 metres apart. Eventually, the lower branches come together and form a barrier to light, however the original intention was the establishment of two individual trees, not to form a hedge.

In oral evidence to the Committee, Robert Paterson of STOG expanded these concerns when he stated—

“My understanding of section 1 is clear, which is that it applies to a hedge or two or more trees growing closely together. We would seek to have the latter part of the provision removed because it could relate to a couple of mature yew trees that are 3,000 years old. If, as you suggest, those trees are reduced to 2m high, we will no longer have yew trees that look individual.”

(Scottish Parliament Local Government and Regeneration Committee 2012b).

Angus Yarwood of the Woodland Trust Scotland expressed a concern that widening the definition of the Bill to include single trees would require a more considered examination of the implications, telling the Committee:

“If there is to be a broader definition, we would want to go back and look at the other sections in the bill, particularly with regard to tree preservation orders and the importance of heritage trees and the proper assessment of biodiversity value.”

(Scottish Parliament Local Government and Regeneration Committee 2012a).

The Member in charge of the Bill, Mark McDonald MSP in addressing the questions raised about whether the definition of a high hedge should be amended, stated that “we should go forward on the current basis and see how the definition works in a Scottish context”. On single trees he added:

“…deciduous trees will be covered by the bill if they are part of a high hedge that is mainly formed of evergreen or semi-evergreen plants. Deciduous trees are not, by definition, completely off the agenda. However, in our view, the real problem in the context of barriers to light is the semi-evergreen or evergreen hedge.” (Scottish Parliament Local Government and Regeneration Committee 2012c). Mr McDonald also stated that he did not support protection for native Scottish species of evergreen and semi-evergreen plants fearing it would create a “significant loophole” whereby anyone who wished to pursue a neighbourhood dispute could simply shift from a non-native to a native species.

The Minister for Local Government and Planning Derek Mackay MSP (“the Minister”) stated that the Government supported both the Bill, and the definition of a high hedge as set out in the Bill as introduced, stating that it “broadly strikes the right balance and required neither narrowing nor expanding”. (Scottish Parliament Local Government and Regeneration Committee 2012c). The Committee (by a majority - Stuart McMillan MSP dissenting) concluded in its stage 1 report that it was content with the definition of a high hedge as established by section 1 of the Bill stating that it did not believe, at this stage, that the definition needed to be amended to include single or deciduous trees, or other forms of vegetation.”

(The Scottish Parliament, n.d.)

Comment

Part 2 considered the Stage 1 debate. This is the only part of the process of consultation and other organisations and individuals will have made contributions at other stages. From the extract provided the organisations that made representations included:

  • the campaign group Scothedge
  • Dr Maggie Keegan of the Scottish Wildlife Trust
  • Aedán Smith of the RSPB
  • the Scottish Tree Officers Group (‘STOG’). Local authority tree officers who will have primary responsibility for implementing and managing the high hedge notice system under the Bill.
  • Angus Yarwood of the Woodland Trust Scotland
  • the Member in charge of the Bill, Mark McDonald MSP.

The main debate concerned the definition that would be used in the Act. Some contributors wanted this widened, others expressed concerns over ancient trees which may have protection orders, others over the type of trees to be included. The final definition, agreed after the Bill went through all three stages of the parliamentary process is shown in the box.

               High Hedges (Scotland) Act 2013 2013 asp 6

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 28th March 2013 and received Royal Assent on 2nd May 2013.

An Act of the Scottish Parliament to make provision about hedges which interfere with the reasonable enjoyment of residential properties.

Meaning of “high hedge”
  1. Meaning of “high hedge”

(1) This Act applies in relation to a hedge (referred to in this Act as a “high hedge”) which—

(a) is formed wholly or mainly by a row of 2 or more trees or shrubs,

(b) rises to a height of more than 2 metres above ground level, and

(c) forms a barrier to light.

(2) For the purposes of subsection (1)(c) a hedge is not to be regarded as forming a barrier to light if it has gaps which significantly reduce its overall effect as a barrier at heights of more than 2 metres.

(3) In applying this Act in relation to a high hedge no account is to be taken of the roots of a high hedge.

The purpose of this activity was to introduce you to the types of activity that are carried out during committee and debate stages in the Scottish Parliament. In reading the extract you can begin to see the thought and level of scrutiny that appear even for what seem to be the most straightforward of Acts (and definitions) before they become law.

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