Meeting date: Tuesday, February 5, 2019
Justice Committee 05 February 2019
Agenda: Decisions on Taking Business in Private, Subordinate Legislation, European Union (Withdrawal) Act 2018, Petitions, Justice Sub-Committee on Policing (Report Back)
- Decisions on Taking Business in Private
- Subordinate Legislation
- European Union (Withdrawal) Act 2018
- Justice Sub-Committee on Policing (Report Back)
Judiciary (Register of Interests) (PE1458)
Agenda item 4 is consideration of two petitions. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper. Paragraph 5 of paper 4 provides the options that are available to the committee when it considers petitions.
The first petition that the committee will consider is PE1458, by Peter Cherbi, on a register of interests for members of Scotland’s judiciary. The petition calls on the Scottish Parliament
“to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.”
This is the committee’s third consideration of the petition. I refer members to annex A of paper 4, which details the response that was received from the Scottish Courts and Tribunals Service. The committee is asked to consider what, if any, further action it wishes to undertake in relation to the petition. The options available include: keeping the petition open; keeping it open and taking additional action, such as writing to the cabinet secretary and/or others; or closing the petition. I seek members’ views.
As was the case when we considered the petition previously, I think that there are reasons to examine it. In everything that I say, I bear in mind our duty to uphold the independence of the judiciary, but I do not believe that openness and transparency contradict that. The Public Petitions Committee took evidence on the issue, but that was some time ago—I believe that it was in 2013—so I wonder whether the committee might want to pull together information regarding how other countries approach the issue. Given that we have a new Cabinet Secretary for Justice, we could perhaps also request his views on the matter.
I fully endorse Daniel Johnson’s view, and particularly the comment about independence. However, there is an obvious tension here. There is a public expectation—it is not unreasonable, in my view—that there should be no conflicts of interest. Our papers refer to the recusal register, but that does not seem comprehensive enough to me. I agree with the proposal that we should find out about the approach in other countries, particularly New Zealand, as that would be helpful.
I totally agree with Daniel Johnson and John Finnie. More information would be helpful. It is an important issue, and transparency has to be key.
For information, I point out that the bill on the issue that was before the New Zealand Parliament was either withdrawn or defeated, but I understand that a register exists in other jurisdictions. I think that Norway has been mentioned.
Clearly, there are huge issues at stake, and a fine balance has to be struck. I would like to know a little more about how the recusal code or policy works. When a conflict of interest is declared, how much detail is recorded and is it in the public domain? It would be good to look at that.
I get the impression from members that they would like to at least explore legislation in other countries. Norway has been mentioned. New Zealand did not proceed with the proposals, but it would perhaps be good to look at what was said there. As Daniel Johnson rightly points out, we have a new cabinet secretary, so it would be good to seek his views.
Are members content to progress by doing those three things?
Members indicated agreement.
Private Criminal Prosecutions (PE1633)
The next petition is PE1633, by Bill Alexander, on private criminal prosecution in Scotland. The petition calls on the Scottish Parliament
“to urge the Scottish Government to change the law to give the people of Scotland the same legal rights as the rest of the United Kingdom by removing the requirement that the Lord Advocate must first give permission before a private criminal prosecution can be commenced in Scotland.”
Before today’s consideration of the petition, the clerk sought views from the petitioner and from the Lord Advocate. I refer members to annex B of paper 4, which contains the responses. The committee is asked to consider the responses and decide what further action, if any, it wishes to take in relation to the petition. The options available include: keeping the petition open; keeping it open and taking additional action; or closing the petition. I seek members’ views.
I declare an interest, in that the petitioner is a constituent of mine.
There is definitely an issue. I read the Lord Advocate’s letter to the convener and I understand the points that he makes. However, of the six questions that the petitioner poses in his submission, I think that it would be reasonable to follow up questions 1 and 4. The Health and Safety Executive is a reserved body. In question 1, the petitioner asks:
“If the Health and Safety Executive will not be accountable to the Scottish parliament, then can the relevant committee at the Westminster Parliament be asked to enquire from the Health and Safety Executive why they have adopted a different policy in regard to risk assessments and reporting injuries for sporting event workers from all other workers, and what evidence they have to support their decision.”
Question 4 asks whether the Lord Advocate can clarify
“whether or not the policies of the Health and Safety Executive in regard to sports workers being considered in a different manner to all other workers is compatible with Article 2 of the Human Rights Act.”
Obviously, there are other questions, but those are the ones that I thought that it would be most pertinent for us to follow up. I think that the matter is worth pursuing, but I am open to comments from other members.
Certain issues around health and safety may indeed be reserved, but that does not preclude this committee from writing to the HSE and cutting out a middle committee. Asking about the policy position with regard to that specific group of workers is a reasonable—indeed, neutral—question. I suggest that, rather than writing to a Westminster committee, we simply write to the HSE ourselves. I am sure that we will get a courteous answer; if, for any reason, we do not, I am sure that we can follow that up.
I seek some clarification. It is my understanding that the petition was originally set out on the basis that the Lord Advocate had to give permission before a private prosecution could go ahead. However, if my understanding is correct, the Lord Advocate has now clarified the position and has stated that he will give a view but that he does not have a veto, and that there can be an appeal. Effectively, that means that he does not have to give permission, although obviously his opinion carries great weight. Is my understanding correct?
Stephen Imrie (Clerk)
The original terms of the petition covered whether the permission of the Lord Advocate was required for a private prosecution. We have set that out in various papers, and the Lord Advocate’s letter to the committee touches on that point, too.
Yes. The difficulty for me is that we have been given a petition whose premise has not proved to be the case. Therefore, I have some difficulty with carrying on and making inquiries. It seems to me that perhaps a new petition should be submitted if there are other issues that people want to follow-up. Of course, I will defer to members’ views, but had you considered that point, Rona?
As the clerk was talking, the possibility of there being a new petition was going through my mind. I do not know whether it is administratively possible to continue with inquiries in relation to this petition.
Again, the difficulty that I have is that we might be setting a precedent if we go on and look at issues that are related to a petition even though the assertion in the original petition is not correct. If we do that, where will we end up?
The question that was asked has been answered: the Lord Advocate has said that he can choose to give a view, which will carry a lot of weight, but that he cannot refuse permission. In view of what has been said, are we content to close the petition and notify the petitioner that, if he wants to bring up other issues, he could choose to submit a fresh petition?
I think that the points that the petitioner has raised with regard to the safety of sports workers are important. However, perhaps they would be better pursued through a new petition.
Is there perhaps a middle way? I accept the points that you make, convener, about the premise of the petition and the question having been answered. However, surely if issues have been raised with us by whatever means, it is open to us to ask questions about them. We might choose to close the petition, but it might be relevant for us to pursue with the HSE the issue that has been raised, and to pursue with the Lord Advocate the issue in question 4, regardless of where the suggestion came from.
I agree with Daniel Johnson. In relation to the legislation that we are discussing, there is the potential for both criminal and civil matters to arise. When we examined the role that health and safety legislation plays in relation to fatal accident inquiries, we encountered similar issues. Out of what is, at the very minimum, idle curiosity on my part, it would be helpful to understand more about the issues, although I accept that the petition could be closed.
That might be a useful halfway house. We could close the petition and write letters to get the answers that the petitioner seeks to those questions, which are not directly connected to his petition, and ensure that he gets a response. Are we content with that approach?
Members indicated agreement.