Plenary, 18 Mar 2004

Meeting date: Thursday, March 18, 2004

Official Report 767KB pdf

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Justice (Northern Ireland) Bill

The next item of business is a debate on motion S2M-936, in the name of Cathy Jamieson, on the Justice (Northern Ireland) Bill, which is United Kingdom legislation.

We are asked to agree that an amendment should be made to the Justice (Northern Ireland) Bill to provide for the compulsory transfer of prisoners from Northern Ireland and that that amendment should be considered by the United Kingdom Parliament.

It is right that, in our jurisdiction, we should be able to play a part in the peace process, if required. However, I emphasise to members that the power that is sought would be reserved and would be used only in exceptional circumstances when all other options open to the Northern Ireland Prison Service had been tried. The Minister for Justice, Cathy Jamieson, has made it clear that the power would be considered only in one or two cases. She also has the right to refuse a transfer of prisoners. Further, if it was felt appropriate, after a transfer had been agreed, that the prisoners should be transferred back to the Northern Ireland jurisdiction, that would be done at the minister's request.

It is appropriate that we consider the Sewel mechanism for the measure. I do not believe that we need a full parliamentary bill to consider a measure that might never be used and which might be used in only one or two circumstances. We have many important issues to consider in the Parliament and I believe that the Sewel mechanism is appropriate in this case. I hope that all members will show their commitment to the peace process and agree that, if the measure is required in exceptional circumstances and poses no threat to the security and stability of our prison service, we are prepared to consider the transfer of prisoners as stated.

I move,

That the Parliament agrees that an amendment should be made to the Justice (Northern Ireland) Bill to provide for the compulsory transfer of prisoners from Northern Ireland to Scotland and that this should be considered by the UK Parliament.

The Justice (Northern Ireland) Bill was originally intended to give the Secretary of State for Northern Ireland the power to make orders for the compulsory transfer of prisoners to prisons in England and Wales in order to maintain security and good order in the prisons in Northern Ireland. Only at a late stage in the consideration of the bill did the Secretary of State for Northern Ireland seek to extend its provisions to include the transfer of prisoners to prisons in Scotland.

Ministers have stated that the new compulsory transfer powers are required to assist in the maintaining of good order in Northern Ireland's prison estate and to assist with the peace process. If the Parliament can play a role in assisting the peace process, we should consider that in open debate rather than railroad it through in the form of a Sewel motion.

I will deal with some of the issues that were highlighted in the Justice 1 Committee's report. Clause 12 of the Justice (Northern Ireland) Bill provides for the Secretary of State for Northern Ireland to make an order for the transfer of a prisoner to Scotland. The Deputy Minister for Justice stated, in his evidence to the committee, that the Scottish Executive would retain an absolute right to veto such a transfer; the minister has restated that position this afternoon. However, the committee was correct to point out in its report that no such right is included in the bill's provisions. The minister informed the committee that the Executive would have the right to require the return of a prisoner to Northern Ireland's jurisdiction at any time; again, he has restated that position this afternoon. As the committee pointed out, that right is not expressed in the bill.

The minister's explanation was that the right to veto a transfer and the right to have a prisoner transferred back to Northern Ireland are dealt with in the memorandum of understanding that accompanies the bill, which is in draft form. However, it is one thing to have a memorandum of understanding and another to have a right that is expressed in the legislation. If the Executive believes that it should hold such rights, why should they not be included in the bill?

The Executive's policy memorandum states that the bill would have no financial effect, because any transferred prisoners would be managed within the existing Scottish Prison Service budget. Over recent years, the SPS has done considerable work on the average cost of a prisoner place in Scotland. The Executive's recent document on rehabilitation in the prison system stated that the average cost for a prisoner place for six months was around £15,000. Given that the prisoners from Northern Ireland will be additional to the Scottish prison population, as the committee stated in its report, it is inevitable that additional costs will arise. I hope that the minister will take on board the committee's recommendation that the situation should be monitored closely.

I return to the issue of whether the Sewel procedure is the most appropriate way of dealing with matters that fall within the competence of this Parliament. Whatever arguments the Executive makes in favour of Sewel motions, it remains the case that, when we allow Westminster to legislate on devolved matters, our opportunity to scrutinise is constrained and not as full as it would be if the Scottish Parliament were to consider the legislation in detail. Our objection is not about the substance of the bill, but about the process that is being used to present it to the Parliament. On that basis, we will not vote in favour of the Sewel motion.

Overall, Conservatives do not support the detail of the Justice (Northern Ireland) Bill, because we feel that it contains an element of appeasement, which has led to a situation in which a sister organisation—the Northern Ireland Assembly—lies dormant. It is my understanding that, mainly for that reason, Conservative and Unionists at Westminster will vote against the bill on its second reading. However, they will not oppose—nor should they—prisoner transfer within the United Kingdom.

Scotland, Wales, Northern Ireland and England are bonded together within the union. Over the centuries, we have stood firm together, with great success, against external threat. On terrorist activity and the stand against terrorism internally, our bonds should be tightened. If, at any time, we in Scotland can help to alleviate particular pressures on Northern Ireland and the Ulster prison service, we should be prepared to do so.

The Sewel motion seeks to allow for a change that, if implemented, would have an effect on the operation of the SPS. It appears that legislative adjustment is needed to make that change. By using a Sewel motion, we can facilitate that change through a one-off piece of UK legislation, thereby simplifying the legislative process, as the minister suggested. An added benefit would be a reduction in the civil service effort that is needed to progress such legislation. Topically, perhaps, that falls into line with the wider aspirations that one of Scotland's Westminster representatives—the member for Dunfermline East—expressed yesterday.

After the bill's enactment, Scottish Executive ministers will remain in control of the situation and their agreement will be necessary before transfer. For those who are entrenched in the desire to ensure that devolved powers are not eroded, that must be a comfort. I understand that the Scottish Prison Service's management is happy with the proposals and that staff have been, and will continue to be, consulted.

In recognising the proposal's merits, I ask the minister whether an opportunity exists to extend the bill's scope. In the present difficult times, we should not close our minds to events that could transpire. A reciprocal clause that allowed reverse-direction transfers would be worth while, even if the need to use it never arose. I will take that up with my Westminster colleagues, who take a positive interest in all aspects of the bill. However, it would be more effective if Executive ministers persuaded their Westminster counterparts of the wisdom of examining the cross-transfer suggestion.

My colleagues and I will support the Sewel motion.

All of us are aware of terrorism in our society. We live in a time when tension is in our everyday lives and we never know whether that tension will break out at any place or any time. If we in the Scottish Parliament can do anything to relieve that tension, we should face that opportunity positively.

Michael Matheson suggested that the Justice 1 Committee's report was not conclusive about clause 12 of the bill. However, the minister has given several undertakings and the memorandum of understanding between the secretaries of state and the Scottish ministers is clear. There is no doubt about what the memorandum says.

If Mike Pringle thinks that the memorandum of understanding is the basis on which a power of veto exists, will he explain what legal authority it has?

I understand that the memorandum is part of the bill.

Mr Maxwell indicated disagreement.

Michael Matheson indicated disagreement.

Members disagree, but that is my understanding. The minister has given us several assurances. I do not think that he would give those assurances unless he was clear about how the bill and the Sewel motion would work in Scotland. The minister told the committee:

"Scotland would just be a further option. We must keep stressing that we do not know whether any such requests would be made."—[Official Report, Justice 1 Committee, 10 March 2004; c 582.]

The minister also made it clear that we are talking about one or two people at the most.

I have spoken to my colleagues in London, who have said that they understand that some of the prisoners who are likely to be transferred from Northern Ireland to England, Wales and/or Scotland might well be under serious threat if they were kept in the prison system in Northern Ireland. Some of those prisoners might be on remand awaiting trial. Such prisoners are more likely to be transferred to Scotland, as that would give them some protection.

Cost has been mentioned and was discussed by the Justice 1 Committee. I do not understand how the cost of transferring prisoners will be more than marginal. Northern Ireland will pay for prisoners to be transferred here, for members of a prisoner's family to come here and for any costs of the legal process. The only extra cost will be extremely marginal. The prison warders and the estate already exist, so little extra cost will be incurred. We should not dwell on cost.

As I said, the bill is a positive move. The minister has given us several assurances. We are talking about a very low number of people. The Sewel motion is the right way of proceeding, because it will save the Parliament publishing a bill and taking it through three stages. It is much quicker and easier to deal with the issue by means of a Sewel motion.

The Justice 1 Committee was asked to consider on 10 March a Sewel memorandum on the transfer of prisoners from Northern Ireland under the Justice (Northern Ireland) Bill.

The subject has received much press attention, as matters relating to Northern Ireland often do. However, that was certainly assisted by an SNP press release that claimed:

"In effect, they"—

the Executive—

"want the power to import some of the worst terrorists into Scottish jails."

That is a sensationalist way of describing the reality of the situation. Northern Ireland ministers asked specifically that Scotland be included in a provision in the bill that would fulfil a commitment made to Northern Ireland, in a review of security, that the UK would provide a small number of prison places for prisoners when the situation demanded it, although only where absolutely necessary.

Northern Ireland has only two adult prisons and capacity is tight. Because of the nature of some of the prisoners, who are segregated, managing the Northern Ireland system is a sensitive matter. In recent times, the potential for industrial action in response to threats to prison staff by paramilitary groups has meant that the system requires some assistance.

The Justice 1 Committee, in its short report, pursued vigorously the key issues for Scotland and the Scottish prison system. Michael Matheson summarised some of those issues, but I would like to emphasise the point. Scottish ministers will be approached directly by Northern Ireland ministers should they wish to make use of this provision. Scottish ministers will assess whether we have the capacity to take any prisoners. We will be told which prisoners are to be transferred and in what circumstances. We can say that we do not want to take those prisoners and, crucially—as the committee established during debate—Scottish ministers can decide to return a prisoner if they decide that that is appropriate in the circumstances.

The committee's report mentioned the costs of any transfer and asked the Executive to consider and to continue monitoring that issue. In the short time that was available to the committee, we drew out a number of important issues.

A Scottish bill would achieve nothing that has not been achieved by the process in which we are engaged. Given the assurances that we have received—and provided that they are accurate—it is correct in this situation to agree that the Sewel procedure should be used, because nothing further would be achieved by having a specifically Scottish bill. I would not support a Sewel motion this afternoon if I thought that ministers would not have the powers that I mentioned previously.

It must be emphasised that the transfer of prisoners is a last-resort measure. I hope that it will not need to be used, but it is useful that we should play our part in the peace process to ensure that the provision is available.

Mike Pringle raised the issue of the memorandum of understanding. I understand that it does not form part of the bill, but it is an important protocol without which we would have no evidence of the assurances that we have requested.

Scotland should be involved in this important piece of legislation. Given the assurances that we have received, we should agree to the Sewel motion this evening.

Here we are yet again—another week, another Sewel motion. Frankly, it never ceases to amaze me that certain sections of the Parliament are continually and so keenly in favour of giving up power—handing it back to London—and ensuring that the devolution settlement for which they fought is undermined by this process.

It is welcome that the Deputy Minister for Justice appeared before the Justice 1 Committee to say that under the Justice (Northern Ireland) Bill the power of veto for a Scottish minister is absolute. He said that, but as the committee's report indicates and as is quite clear, that provision is not contained in the bill, but is in a memo of understanding. A right is not a legal power or right when it is contained in a memo of understanding, which is no more than that.

The bill states:

"If it appears to the Secretary of State that … a person serving a sentence of imprisonment in Northern Ireland … should be transferred to"

another part of the United Kingdom

"in the interests of maintaining security or good order in any prison in Northern Ireland, the Secretary of State may make an order for his transfer to"

that other part of the United Kingdom

"there to be remanded in custody pending his trial or, as the case may be, to serve the whole or any part of the remainder of his sentence, and for his removal to an appropriate institution there."

The bill does not say, "unless the Scottish Executive, the Scottish ministers, the First Minister or the Parliament say no". No matter what the minister said, the bill does not say that and therefore the assurance is not worth the paper that it is written on.

The Executive says that the bill will have no financial effect. Of course there will be financial effects. Michael Matheson mentioned the cost of keeping a prisoner in a Scottish prison. I agree that there are fixed costs whether or not a prisoner is held, but there are additional costs for every prisoner who is kept in the Scottish Prison Service. It does not seem right that costs should be borne by the Scottish Prison Service budget for prisoners from Northern Ireland. The Northern Ireland Prison Service should bear those costs.

The SNP wants to do everything that it can to support the peace process in Northern Ireland. However, that is no reason why we should hand over powers to Westminster yet again. There has been ample time to introduce a Scottish bill on the matter. We could have had a short and simple bill to confirm the ability to transfer prisoners, but that did not happen.

When the minister appeared before the Justice 1 Committee, I asked him when the bill was introduced at Westminster. The bill was introduced in the first week of December and completed its stages there on 10 February. The bill took two months to go through Westminster, which means that we could have done the same here. The minister told the committee that the aim was to ensure that the legislation was passed speedily and that we did not hold it up. Given that the bill was introduced in the first week of December and that it was passed in two months, we could easily have introduced a bill and passed it in time so that there was no delay in Scotland.

I keep hearing from ministers about the relationship between the Scottish Executive and the Government in London. We hear often about the concordats, the meetings, the discussions and how the Executive and the Government work together closely, hand in hand. Surely that means that ministers did not find out on 3 December that the bill had been introduced—they knew about it well before that date. I am sure that the minister was well aware that the bill was to be introduced, so even more time was available than the months that I mentioned.

It is nonsense to suggest that we should give up powers willy-nilly, week in, week out. Phil Gallie's suggestion about transferring prisoners from Scotland was interesting. If we had a Scottish bill, we could have an open debate on that issue here and decide for ourselves whether that was a good suggestion.

Mike Pringle made the point—and Pauline McNeill made a similar point—that it was better to use a Sewel motion because doing so would not waste administrative time. The wasting of administrative time, as Mike Pringle calls it, is what I call the democratic process. Pauline McNeill said that we did not have to spend time on the matter and that we should leave it to Westminster, but that process is what I call democratic scrutiny. The idea that we should give up such scrutiny is an abdication of responsibility, the democratic process and democratic scrutiny. The Scottish Parliament was set up in order to return certain powers to Scotland, so that Scottish people could see that their representatives in the Scottish Parliament could spend time processing and scrutinising matters that affected Scotland. To give up those powers in such a weak-mannered way is nonsensical.

I reiterate that we do not object to helping the peace process and, in fact, we support it. However, we object to the mechanism that is being used to try to assist the peace process. To prove that, I point out that the SNP supported the principles of the bill in its early stages at Westminster. We support helping the Northern Ireland peace process, but we do not support the handing over of power in such a fashion.

I have a final question, which I hope that the minister will answer. To which prisons in particular would prisoners be transferred, if that were to happen? Will all prisons be considered? It seems that certain prisons are more suited to taking such prisoners than others and I think that the communities who live near those prisons have a right to know whether their local prison is being considered to take some of the most dangerous and disruptive terrorist prisoners in the UK. Communities should be aware that that might happen in the near future.

As Michael Matheson said, we do not object to supporting the peace process. We are fully behind that, but we object to the Sewel motion and we will vote against it.

Before I invite the minister to respond to the debate, I make the observation that I am calling him to speak slightly early. In the event that the minister does not fill the four minutes that are left to us, I will suspend the meeting, rather than take decision time early.

You need have no worries in that respect, Presiding Officer.

Excellent.

A number of valid points have been made this afternoon. I will deal with one or two specific points and then move on to the general concepts.

Phil Gallie asked about reciprocal powers of transfer. Frankly, we do not consider such powers to be necessary. There are only two prisons in Northern Ireland, which are closed prisons. There are considerably more prisons in Scotland and in England and Wales, so if we were ever confronted with a situation in which we needed to move prisoners, we would be far better able to handle it than the Northern Ireland Prison Service would be. The scenario that Phil Gallie envisaged is unlikely, although I understand the principle that he raised.

Mike Pringle and Pauline McNeill encapsulated and reinforced the reasons for the Sewel procedure being the appropriate approach to the matter. Pauline McNeill said that a bill of the Scottish Parliament would achieve nothing that could not be achieved by the Sewel motion, other than the taking up of a considerable amount of parliamentary time and the pushing back of other work that we think is appropriate.

I wonder whether Stewart Maxwell, Michael Matheson and other members of the Scottish National Party have thought the matter through. They asked specifically about the powers in the bill. In relation to Scottish ministers' powers, the bill and the memorandum of understanding would work in exactly the same way as the Crime (Sentences) Act 1997 currently works in relation to the transfer of prisoners between Scotland and England. A memorandum of understanding supports that legislation.

Frankly, the measures in the bill cannot, could not and will not work without the specific consent that is encapsulated in the memorandum of understanding, even though that is not stated in the bill. There is no chance whatsoever, given the signed memorandum of understanding, that Cathy Jamieson, the Minister for Justice, would be forced to accept prisoners when she had concluded that that was not the right thing to do. The SNP is scaremongering and, as usual, posturing.

When Pauline McNeill was speaking, a thought crossed my mind. Given what the minister said about the powers of Scottish ministers and Northern Ireland ministers to demand the return of a prisoner, has the minister given any consideration to what would happen if a prisoner who had been transferred from Northern Ireland committed a serious misdemeanour while he was in prison in Scotland, and so might have infringed Scottish law?

I am not quite sure of the technicalities of that, but if anyone is transferred from Northern Ireland to Scotland as a result of the arrangements in the bill and we believe that they should no longer be here, they will be transferred back. If I have missed a point in relation to Phil Gallie's question, he can take it up with me separately.

Stewart Maxwell and others have raised issues about the costs of our having the prisoners here in Scotland. I will be frank: the costs of two prisoners at any one time, when considered as part of the wider Scottish prison budget, are minute. Michael Matheson was right when he said that the bulk of the costs would be fixed costs. If there were to be extra costs, Stewart Maxwell says that he believes that the Northern Ireland Prison Service should bear them. Is he suggesting that, for the variable costs of two prisoners, we should sit down and do the calculation? If the prisoners from Northern Ireland come, should we ask them, "How many Weetabix did you have today, and how much milk did you take with the Weetabix?" Should we ask those questions because we are going to send a bill to Northern Ireland, because we are going to have an accountant draw it up, because we have to verify the costs, because we are going to get a cheque sent back, and because we are going to lodge that cheque? That is the SNP's idea of proper accounting and recovery of costs. SNP members have nothing better to do than consider minutiae and trivial matters, as is their wont. The principles are far more important than worrying about the number of Rice Krispies or Weetabix that anyone consumes at a particular time. The SNP misses the whole point.

The SNP suggests that the issue could have come to the Scottish Parliament and that we could have rushed through a bill. Oh yes—we could have rushed through a bill. But would the SNP, in its wisdom, have said that it regarded the bill as emergency legislation and that everything else should be abandoned to rush it through? I do not think so. I think that we would have heard SNP weasel words demanding full scrutiny.

Stewart Maxwell let the cat out of the bag. He wants full consultation with every community in Scotland that might have to take a prisoner who is transferred. He does not want to upset the peace process, but he wants to go to all the communities around prisons and have full debates on whether those prisoners should come over here. If he does not think that that would stoke up problems in those communities, who is he kidding? He is certainly kidding no one here.

We are dealing with this matter properly. We have given it proper consideration. We have reserved the right to say no, and we, yet again, are the ones who are behaving responsibly while the SNP postures, gestures and avoids difficult decisions.