Citizen Participation and Public Petitions Committee

Meeting date: Wednesday, October 4, 2023

Official Report 682KB pdf

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Continued Petitions

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Community Participation Requests (Appeal Process) (PE1902)

Under agenda item 4, we will consider continued petitions. The first such petition is PE1902, on an appeal process for community participation requests. Our parliamentary colleague Edward Mountain has stayed with us to assist in the consideration of the petition, on which he will make a representation. We have also received a submission from Rhoda Grant, to which I will refer in a moment.

The petition, which was lodged by Maria Aitken on behalf of Caithness Health Action Team, calls on the Scottish Parliament to urge the Scottish Government to allow an appeal process for community participation requests under the Community Empowerment (Scotland) Act 2015.

We previously considered the petition on 18 January, when the committee agreed to write to the Scottish Government, and we have since received a response from the Minister for Community Wealth and Public Finance. The minister stated that the Scottish Community Development Centre is

“giving careful consideration to when an appeal could be made”,

how the process could be

“fair, open and transparent, and who would be best placed to manage that process.”

As I said, we have received a written submission from Rhoda Grant, who is unable to attend the meeting this morning. She has made the case for CHAT to be accepted by NHS Highland as a community organisation under the participation request process, and she has asked that the committee put the matter to NHS Highland. She has also requested that the committee keep the petition open until the Scottish Community Development Centre has published its proposals on an appeal process.

Before I ask committee members how they would like to proceed, I ask Edward Mountain whether he has any suggestions.

11:45  

The Caithness Health Action Team has been around for a long time and has been instrumental in helping to resolve issues of inclusion, in relation to health concerns, for people in the Highlands. It is a strong advocate. I have supported Rhoda Grant and the Caithness Health Action Team in delivering their request to NHS Highland. There is a very simple answer, as Rhoda Grant has suggested, which is for NHS Highland to accept CHAT as a community organisation under the process.

I urge the committee to keep the petition open and to push on NHS Highland’s door to see whether it will include CHAT, because, by excluding it, NHS Highland is doing itself and Caithness no good at all.

I am tempted to suggest that we keep the petition open and write to NHS Highland, as Rhoda Grant has suggested, seeking the inclusion of CHAT in its community participation representation. There is also a material basis for us to wait for the Scottish Community Development Centre to publish its proposal, so that we can be satisfied that progress will be made on those two fronts.

Are there any other suggestions, or are we content?

I am absolutely content with that. However, I want to add that, on 18 January, there was agreement. I spoke—as did Alexander Stewart, the convener and Rhoda Grant—and asked for the minister to be specific and say when we would get a decision. That was 18 January, but here we are—almost another year has passed—and we now know that nothing will happen until the early part of next year, when the report from the SCDC will be available. I will not be holding my breath about the content of that report. Without being too critical, I do not expect a great deal from it. I am not sure that it is even necessary.

Be that as it may, however, the minister fails to say when a decision will be taken after the SCDC report has been issued. Therefore, we are none the wiser about when the minister will get around to doing something. I put that on the record in the vain hope that, when we ask a Scottish Government minister to give us the courtesy of a reply on something so basic as timing, we do not just see things kicked into the long grass in perpetuity, particularly in these days of rewilding when the grass is very long.

That is duly noted, Mr Ewing.

Do we agree to keep the petition open on the basis that has been suggested?

Members indicated agreement.

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Strategic Lawsuits against Public Participation (PE1975)

Our next petition, PE1975, which was lodged by Roger Mullin, calls on the Scottish Parliament to urge the Scottish Government to review and amend the law to prevent the use of strategic lawsuits against public participation, which have the unfortunate acronym of SLAPPs.

We previously considered the petition at our meeting on 18 January, when the committee agreed to write to the Scottish Law Commission, the Law Society of Scotland, the National Union of Journalists, the Scottish Newspaper Society and the Scottish Government.

The Scottish Law Commission has confirmed that it does not have any current work in its programme of law reform that is relevant to the petition.

The Minister for Community Safety’s written submission noted that, although defamation is not the only type of proceeding that is used for this purpose, it

“is the most common route to silence or intimidate.”

The submission details enhanced legal protections that have been brought about by the Defamation and Malicious Publication (Scotland) Act 2021, particularly the ability for unfounded proceedings to be dismissed at an early procedural hearing in relevant circumstances.

The Law Society of Scotland points out that, between 2013 and 2021, when the threshold to bring defamation action was lower in Scotland than it was in England and Wales, there was not a significant increase in the number of cases brought in Scotland. It highlights work that is being undertaken by the Council of Europe to develop a draft recommendation on SLAPPs, with the working group concluding its work by December 2023.

The National Union of Journalists states that threats of legal action often act as an effective deterrent and go unreported, which means that the true scale of the issue “cannot easily be captured.” The NUJ argues that the statutory definition of SLAPPs must be broad in order to cover the wide range of tactics deployed.

The anti-SLAPP research hub’s written submission points to the UK Government’s consultation, which observed that protection through a serious harm test or public interest defence in defamation cases comes too late in proceedings to deter abusive litigation.

The petitioner’s written submission describes the Scottish Government’s response as “complacent” and states that

“SLAPPs cannot be judged solely on the basis of those cases that come to court.”

His most recent submission highlights some of the on-going work that is being done to increase engagement on the call for Scottish anti-SLAPP legislation.

After that rather extended summary, do members have any comments or suggestions for action?

We should take evidence from the petitioner, the anti-SLAPP research hub, the Law Society of Scotland and the Minister for Victims and Community Safety. In addition, we should hear from Mr Graeme Johnston, who has provided a detailed, forensic and closely argued submission. I make that suggestion because, from what the National Union of Journalists, Mr Johnston, the anti-SLAPP research hub and others have said, it appears that Scotland is at risk of becoming the jurisdiction of choice for people such as oligarchs to abuse the court system, throw their weight around and, by taking SLAPP actions, prevent freedom of speech. Surely, freedom of speech is something that we are here to preserve and fight for.

In particular, I was struck by the point that high-profile SLAPP cases are simply the tip of the iceberg. The NUJ submission states that they

“do not reflect the volume of threatening letters and interference that takes place pre-publication.”

In other words, we have no idea how many threats of legal action are made that we never hear about because the person from, for example, a small publisher or small newspaper thinks, “I havenae got the money to take on this guy,” so that is the end of it—David, no sling, no action; another victory chalked up to Goliath.

I have absolutely no doubt that we need to get the evidence and to learn more from the various points that have been challenged in relation to the Government’s response, which—I am sorry to say—I found a bit on the complacent side.

The petitioner, Roger Mullin, is with us in the public gallery today. We will seek to take evidence from him, the anti-SLAPP research hub, the Law Society of Scotland and the Minister for Victims and Community Safety at future meetings. Are there any other organisations that we would like to include? Fergus Ewing has suggested that we speak to Mr Graeme Johnston, too.

Are we content to proceed on that basis?

Members indicated agreement.

We will keep the petition open and seek to hold an evidence session at a subsequent committee meeting, as agreed.

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Child Protection (Public Bodies) (PE1979)

Our next petition is PE1979, regarding the establishment of an independent inquiry and an independent national whistleblowing officer to investigate concerns about the alleged mishandling of child safeguarding inquiries by public bodies. The petition has been lodged by Neil McLennan, Christine Scott, Alison Dickie and Bill Cook. I see that the petitioners are with us in the public gallery. A warm welcome to you. You have had quite an extended morning before we got to your petition.

The petition calls on the Scottish Parliament to urge the Scottish Government to launch an independent inquiry to examine concerns that allegations about child protection, child abuse, safeguarding and children’s rights have been mishandled by public bodies, including local authorities and the General Teaching Council for Scotland, and concerns that there are gaps in the Scottish child abuse inquiry and to establish an independent national whistleblowing officer for education and children’s services in Scotland to handle such inquiries.

We considered this petition at our meeting on 8 February, at which point we agreed to seek further information from a number of relevant organisations. We have subsequently received responses from the General Teaching Council for Scotland, the Children and Young People’s Commissioner Scotland, the Scottish Social Services Council, the Educational Institute of Scotland and the Convention of Scottish Local Authorities. Copies of the responses are in the papers for today’s meeting.

The GTCS has provided an overview of its fitness to teach process and identified national education reform and the Scottish child abuse inquiry as opportunities for driving improvement on the roles and responsibilities in child protection.

The responses from the Scottish Social Services Council, the EIS and COSLA suggest that the existing guidance and processes for child protection are sufficient, with both the EIS and the SSSC hesitant about the need for an independent national whistleblowing officer for education and children’s services.

In contrast, the Children and Young People’s Commissioner Scotland response notes that it has identified

“a number of gaps in the national guidance and a need for stronger accountability mechanisms.”

Its response suggests that there would be merit in exploring the creation of a national whistleblowing officer, perhaps in a similar format to the independent national whistleblowing officer for the national health service.

The committee has received three submissions from the petitioners that reflect on our previous consideration of the petition and comment on the content of responses that we have otherwise received.

Finally, members of the committee and I have received email correspondence from a number of individuals seeking to make submissions to the committee or to give evidence in support of the petition, but only if they can do so under conditions of confidentiality, which the committee can obviously agree to.

Do members have any comments or suggestions for action?

I will read back from the petitioners’ response of 3 March:

“We thought it might be useful … to take you through several actual case studies highlighted by whistleblowers and victims.”

They also said that it was their hope that

“some whistleblowers will be prepared to speak directly to the committee”.

These are very sensitive matters, as we know, so I suggest that it would be appropriate to invite the petitioners and whistleblowers to a round-table discussion on the issues raised by the petition. If that option is favoured, the committee might want to delegate authority to the convener to work with the clerks on the most appropriate format for that discussion to take place. We are here to make sure that people have a right to be heard. They have not been heard yet, so that would be a way in which we could give them that right.

Colleagues, that might mean that you would be devolving to me the ability to agree that that session might be private in order to protect and respect the anonymity of those individuals who might feel that they want to contribute, and to work with the clerks to ensure that we can identify a format that the individuals who might want to contribute feel that they could support and feel confident in. Do members agree to keep the petition open and to next consider it at a round-table discussion where we will hear direct evidence, in a format that is to be agreed, from the people affected.

Members indicated agreement.

I hope that that meets the immediate hopes and expectations of the petitioners.

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Child Arrangement Orders (PE1984)

PE1984, on the introduction of the C100 form for child arrangement orders in Scotland, was lodged by Amy Stevenson. It calls on the Scottish Parliament to urge the Scottish Government to reduce the financial barriers that prevent parents from having contact with their children by introducing a Scottish equivalent to the C100 form, with a fixed fee for making applications for child residence or child contact orders.

We previously considered the petition on 22 February, when we agreed to write to the Scottish Government, the Scottish Law Commission, the Law Society of Scotland, the Family Law Association, Relationships Scotland, the Scottish Legal Aid Board, the Scottish Courts and Tribunals Service and the family law committee of the Scottish Civil Justice Council.

The Scottish Government response sets out its view that

“it is better if separating parents can agree about what is best for their child.”

The response includes information on existing resources and services intended to assist separating parents to resolve disputes and make arrangements outside of court.

The Scottish Courts and Tribunals Service response highlights the “potential impacts” of the introduction of a form-based approach on the court service. A number of responses that we received also noted that the introduction of a C100-type form might encourage people to go straight to court without first considering alternative options. While fixed fees might reduce some costs, the form could result in increased costs if the individual required legal representation throughout the process.

The Scottish Legal Aid Board suggested that a change in the way cases are initiated would require

“a wider overhaul of the court rules”.

The Scottish Civil Justice Council and Relationships Scotland suggested a review of what happens currently, the latter suggesting that a starting point might be

“a review of the current process … for making applications for child contact or residence orders”.

Do members have any comments or suggestions for action?

12:00  

We should write to the Scottish Government to seek an update on the pilot scheme for mandatory alternative dispute resolution meetings and ask whether it has any plans to review the present system for initiating court action in relation to child contact and residence orders.

Are colleagues minded to accept that suggestion?

Members indicated agreement.

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Drug Testing Kits (PE1986)

PE1986 was lodged by Andy Paterson on behalf of the help not harm campaign, and it calls on the Scottish Parliament to urge the Scottish Government to provide free testing kits for drugs in public spaces such as local pharmacies, libraries and university buildings. We last considered it on 22 February, when we agreed to write to the Scottish Government, which, in its response, highlighted three forthcoming reports from the drug checking research project that all focus on the use of self-testing kits. It also notes that an implementation group has been established and that implementing drug checking will be a priority for the group. No specific timeline is available, as that is dependent on the Home Office and its licensing application process. Two of the applications were due to be submitted by the end of April and a third before the summer. Do members have any comments or suggestions?

I suggest that we write to the Scottish Government to request a summary of the key findings and recommendations of the drug checking research project’s three reports on the use of self-testing kits and to ask it to indicate whether the findings have altered the Scottish Government’s position on the free provision of such kits in public spaces.

I support that recommendation. We might also wish to seek from the Scottish Government an update on what testing and training are provided on the use of naloxone. Many moons ago, between 2007 and 2011, when I was the drugs minister, we promoted the use of naloxone by, for example, police officers. If applied, naloxone can reverse the effects of opioids, and, in certain circumstances, it can save lives. It is not without its controversies, but that measure was introduced years ago. I raise it because, in relation to drug testing, it has the potential to save lives and is very valuable.

It would be helpful to get a fairly comprehensive account from the Scottish Government about how naloxone has been rolled out, whether the police are now using it, as was wished to be the case, whether there are any barriers, and what is being doing with it specifically. We are all alarmed and concerned at the number of drug deaths in Scotland, and, in some circumstances, naloxone can save lives.

Are members content to add that to our list of actions?

Members indicated agreement.