Contents
- Attendance
- Defamation and Malicious Publication (Scotland) Bill: Stage 1
- Subordinate Legislation
- European Union (Withdrawal) Act 2018
Subordinate Legislation
International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2020 [Draft]
The committee will now consider six statutory instruments: three affirmative Scottish statutory instruments, one negative SSI and two United Kingdom SIs. For the three affirmative SSIs, we are joined by the Cabinet Secretary for Justice, Humza Yousaf, who is accompanied by various officials from the Scottish Government to support the committee in its consideration of the instruments.
We turn to the first of the three affirmative instruments that the committee must consider. I welcome the cabinet secretary and his officials and I invite him to make a short opening statement.
Good morning, convener. Since this is the first time that I have appeared in front of the committee with you as its convener, I put on record my congratulations and welcome you to your role. I am sure that this will be the first of many exchanges, which I look forward to.
Thank you very much.
The draft International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2020 confers various legal immunities and privileges on the Square Kilometre Array observatory.
In March 2014, the UK Government committed to investing £100 million in the construction of the observatory, which is around 16 per cent of the total construction cost. That was agreed as part of the process to bring the headquarters to the UK.
A treaty-level agreement—the SKA observatory convention—was signed by seven countries in March 2019. The convention provides the basis for the creation of a new international organisation, the SKA observatory. So far, the Netherlands, Italy and South Africa have ratified the convention. The convention will come into force once all three host countries—namely, the UK, South Africa and Australia—have also ratified it.
The overarching reason for the order is to help the UK fulfil its international obligations, and the order before the committee fulfils those obligations in so far as they relate to devolved matters in Scotland. Equivalent provisions in respect of reserved matters and devolved matters in the rest of the UK are being conferred by legislation at Westminster. However, to the extent that the privileges and immunities relate to devolved matters in Scotland, conferral rightly falls to the Scottish Parliament. When their respective parliamentary passage is complete, both orders will go before the Privy Council.
Although the order is limited to the issue of privileges and immunities, I will quickly say a little about the background to the observatory.
The project is an international effort to build the world’s largest radio telescope. Around 100 organisations across 20 countries are participating in its design and development. World-leading scientists and engineers are working on a system that will require two supercomputers that are each more powerful than the current best supercomputer in the world.
The observatory’s unprecedented sensitivity will give astronomers insight into the formation and evolution of the first stars and galaxies after the big bang, the role of cosmic magnetism—I, too, had to Google that—the nature of gravity and, possibly, even life beyond earth.
To enable the observatory to fulfil its purposes and carry out its functions, certain privileges and immunities must apply. That is standard practice for international organisations, as it enables them to function effectively across multiple territories. Privileges and immunities are granted primarily on the basis of—I emphasise this—strict functional need. Their conferral is, in effect, a condition of membership and is necessary to enable the observatory to function as an international organisation in the UK.
The specific purpose of the order is, therefore, to provide immunities and privileges to the observatory, members of staff and designated experts—again, I emphasise this—in the course of official activities in Scotland. It reflects the equivalent Westminster order and the terms of the protocol on privileges and immunities, which has been agreed at international level.
On the nature of the immunities involved, the order provides that the director-general, members of staff and experts shall have immunity from suit and legal processes in respect of things done or omitted to be done—again, I emphasise this—in the course of the performance of official duties.
12:00It is important to emphasise that the immunity is not for officials’ personal benefit and it does not provide carte blanche for officials to ignore the laws and regulations of the host country. The privileges and immunities that are conferred by the draft order are no greater in extent than those that are required by the convention to enable the observatory and specified individuals connected with it to function effectively.
Immunity can be waived by the observatory council in the case of the director-general, and by the director-general in the case of a member of staff or a designated expert. Representatives of a member of the observatory will also be afforded privileges and immunity from legal process while performing their official capacity. That immunity can be waived by the Government of that member.
That immunity does not apply to a person who is a British citizen or to any person who, at the time of taking up their function, is a permanent resident of the United Kingdom.
In the particular case of motor vehicle incidents, the observatory has no civil or criminal immunity where the vehicle belongs to or is operated on behalf of the observatory.
Immunities and privileges are, therefore, limited in that they apply only to official actions and can be waived. They do not give an individual freedom to commit criminal activity. An assault, for example, would be prosecuted in the normal way.
The order will help the UK fulfil its international obligations in respect of Scotland. As a good global citizen, it is the duty of the Scottish Government to bring it forward to the Parliament.
I hope that that is helpful. I am more than happy to take questions.
That is very helpful, indeed.
So far, one member has indicated that he wishes to ask a question. I note that all questions will be directed to you, cabinet secretary, but if you want to bring in your officials at any point, please feel free to do so if you think that that would be helpful to you or the committee.
Cabinet secretary, if the order is approved, how many individuals in Scotland will benefit from the international immunities and privileges, which include not paying tax and immunity from civil and criminal law? What is the total number?
Initially, there are expected to be 100 people working in the UK who would be offered those privileges and immunities and, once up to capacity, there could potentially be 200 such people. At this stage, I cannot tell you the number that would be based in Scotland—those discussions will be on-going. As I said, in the UK, there are expected to be 100 people, initially, and, once up to full capacity, around 200 people.
I am sorry if I did not make my question clear, but I meant the total number of individuals in Scotland who will not have to pay taxes and will be given immunity from civil and criminal law as a result of this legislation. As you know, I have been raising such issues from the period when you were a young man and a member on the Justice Committee with me.
Forgive me, but I do not have that number to hand. You will know that there is a list of dozens of organisations that are granted privileges and immunities, including the International Maritime Organization, the European Police College, the European Organisation of Astronomical Research in the Southern Hemisphere and the European Bank for Reconstruction and Development.
Forgive me for not having the number of people in Scotland that the order will affect, but I can ask my officials to see whether we can get an updated number for you and we can write to the committee with that detail.
I have a further question; forgive me if the answer is contained in the information on the order. Would the immunity extend to premises being inviolate, which I understand is the term, or would Police Scotland, for instance, be able to crave a warrant in respect of premises that are owned and occupied or rented by this organisation?
It is a good question. Through the order, the observatory shall not allow the premises to be used for any unlawful activity, and it shall not permit the premises to become a refuge from justice for persons who are avoiding arrest or legal processes under the law of the United Kingdom or against whom an order of extradition or deportation has been issued by the appropriate authorities. Therefore, if police officers had reason or cause to enter the premises because they suspected illegal activity, there would be nothing preventing them from doing so.
I understood that to be the position for the previous SIs that have been brought to the committee. Is this order different?
Forgive me, I would have to double-check whether that was the case in previous SIs, but under this order, the observatory would not allow the use of its premises for any unlawful activity.
I am sorry—I lost connection and missed the first part of the exchanges. I have participated in such exchanges with Mr Finnie however, so I hope that I have got the gist. Can the cabinet secretary clarify whether the proposition is ultimately based on the obligations that flow from international law?
We are required to fulfil our international legal obligations, at least in normal circumstances—not to get too political about yesterday’s events in the House of Commons—and much interesting legal authority exists on the rationale for the Convention on the Privileges and Immunities of the United Nations, from which all this stems. Is my understanding correct—that the SSI before us in fact just reflects that position?
Yes is the short answer. The immunity and privileges order has previously been conferred on a number of international organisations—some of which are not-for-profit—and a number of the provisions in the order also touch on the Vienna Convention on Diplomatic Relations, and so on.
That is a normal process, which we, as a good global citizen, have to fulfil, thereby also assisting the UK Government where the observatory’s headquarters will be based. The UK Government has to pass the order to be able to ratify the convention. It can do that in Westminster for reserved matters, but the responsibility falls on us for devolved matters. The short answer is yes—Ms Ewing’s interpretation is spot on.
No other member has indicated that they wish to question the cabinet secretary about the order, so we move to its formal consideration. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and had no comments to make on it. Motion S5M-22416 can now be moved, with an opportunity for formal debate if necessary.
Motion moved,
That the Justice Committee recommends that the International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2020 [draft] be approved.—[Humza Yousaf]
I thank the cabinet secretary and Ms Ewing for their comments. This is indeed “normal process”, because a lot of things that used to be normal are no longer so. In relation to this order, members will note that neither consultation nor impact assessments have taken place. I have said many times when those issues have been brought before us—the number must be in the thousands—that the committee should be concerned with the equitable application of Scots law, not with its disapplication for any individual or organisation. Once again, I oppose this format, this approach and this particular statutory instrument.
I am happy to note Mr Finnie’s long-standing opposition to those orders and understand the principle on which he does so.
Although I respect him for taking that consistent approach, I state that this is an important order, not just to allow for the exploration of space, the universe and galaxies, but also because, as a good global citizen, we should confer on others the immunities and privileges that we would expect others to confer on us in their jurisdictions.
I am happy to leave it at that, and I ask members to support the order.
The question is, that motion S5M-22416 be agreed to. Are we agreed?
I see that we are not all agreed. Therefore, there will be a division. We will use the chat function on BlueJeans to vote.
For
Adam Tomkins (Glasgow) (Con)
Shona Robison (Dundee City East) (SNP)
Rona Mackay (Strathkelvin and Bearsden) (SNP)
Annabelle Ewing (Cowdenbeath) (SNP)
James Kelly (Glasgow) (Lab)
Liam Kerr (North East Scotland) (Con)
Fulton MacGregor (Coatbridge and Chryston) (SNP)
Against
John Finnie (Highlands and Islands) (Green)
The result of the division is: For 7, Against 1, Abstentions 0.
Motion agreed to,
That the Justice Committee recommends that the International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2020 [draft] be approved.
I invite the committee to delegate to me the publication of a short factual report on our deliberations on this statutory instrument, and on all the other Scottish statutory instruments that we will consider today. I assure Mr Finnie that his dissent will be recorded. Do we agree to do that?
Members indicated agreement.
Management of Offenders (Scotland) Act 2019 (Consequential Amendments) Regulations 2020 [Draft]
Our next item of business is consideration of a second affirmative instrument. Humza Yousaf and his officials remain with us for this item. I invite the cabinet secretary to make a short opening statement.
I am sorry—there might be a problem with my connection. Would you like me to speak about the Management of Offenders (Scotland) Act 2019 regulations?
Yes.
I will be brief, and I am happy to take questions.
Part 2 of the 2019 act provided for reforms to the system of general disclosure of convictions under the Rehabilitation of Offenders Act 1974. Those provisions, which were supported by all parties through the parliamentary process, included changing some of the terminology that was used in the 1974 act. One of those changes in terminology was to change the term “rehabilitated person” to “protected person”.
Part II of schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 relates to disqualification from jury service as a result of certain criminal convictions. Currently, the 1980 act refers to “rehabilitated persons” for the purposes of the 1974 act rather than “protected persons”. That language needs to be changed to reflect the new terminology under the 1974 act when part 2 of the 2019 act is commenced, on 30 November.
In conclusion, the purpose of the regulations is a consequential change to amend part II of schedule 1 to the 1980 act so that it refers to “protected persons” rather than “rehabilitated persons” for the purposes of the 1974 act. That is simply to maintain consistency with the terminology of the 1974 act.
I am happy to answer any questions that the committee may have. Please forgive me for any connection issues that might have interrupted that presentation.
We are hearing you loud and clear, cabinet secretary—well, I am, at least.
Thank you for your presentation. No member has indicated that they wish to ask a question, so we move straight to the formal consideration of the regulations. The Delegated Powers and Law Reform Committee has reported on the instrument and has made no comments. I ask the cabinet secretary to move motion S5M-22518.
Motion moved,
That the Justice Committee recommends that the Management of Offenders (Scotland) Act 2019 (Consequential Amendments) Regulations 2020 [draft] be approved.—[Humza Yousaf]
Motion agreed to.
Equality Act 2010 (Specification of Public Authorities) (Scotland) Order 2020 [Draft]
Our next item of business is consideration of a third affirmative instrument. The cabinet secretary and his officials remain with us for this item. I invite the cabinet secretary to make a short statement on the instrument.
Again, I will be relatively brief.
Earlier this year, the Parliament passed legislation that created the role of a Scottish biometrics commissioner who will have oversight of the acquisition, retention, use and destruction of biometric data such as fingerprints, DNA and facial images by Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner.
I understand that the Parliament anticipates that the recruitment of the commissioner will be progressed over the coming months, with the successful candidate taking up the appointment early next year.
The order will add the Scottish biometrics commissioner to the list of public authorities specified in part 3 of schedule 19 to the Equality Act 2010, which are required to comply with the public sector equality duty under section 149 of that act. The order would, therefore, place a duty on the commissioner, when exercising their functions, to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the 2010 act; to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and to foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
Some examples of the commissioner’s functions in which this duty is expected to apply are the framing of the content of a code of practice that the commissioner is required to prepare; the reviews undertaken by the commissioner on how biometric data is managed by bodies subject to their oversight; and the recommendations that the commissioner may choose to make.
I recognise the importance of ensuring that the commissioner exercises their functions with due regard to the equality duties, and I consider that this order offers the best approach to ensure that that happens.
I am happy to take questions.
No member has indicated that they wish to ask a question about the order, so we move to its formal consideration.
The Delegated Powers and Law Reform Committee has considered and reported on the instrument and has made no comments. I ask the minister to move motion S5M-22573.
Motion moved,
That the Justice Committee recommends that the Equality Act 2010 (Specification of Public Authorities) (Scotland) Order 2020 [draft] be approved.—[Humza Yousaf]
Motion agreed to.
Mental Health Tribunal for Scotland (Practice and Procedure) (No 2) Amendment Rules 2020 (SSI 2020/246)
Our next item of business is consideration of a negative instrument. I refer members to paper 4, which is a note by the clerk on the instrument.
No member is indicating that they have any comments to make. Are members content not to make any comments to Parliament on the instrument?
Members indicated agreement.
That concludes our consideration of the Scottish statutory instruments.