Under our second item today, we continue to take evidence as part of our scrutiny of the Scotland Bill and the relevant legislative consent memoranda. Those who have had a chance to look at the agenda will have noticed the huge range of areas that we will try to cover today. We are also trying to ensure that the committee has a little bit of time to process what it has heard. If all the witnesses will forgive us, we will rather race through the questions. It may be that only one or two committee members engage each witness in questioning so as to ensure that we keep to time. We are very grateful to all the witnesses who have provided written evidence, which has guided the committee in advance of today’s deliberations.
I am very pleased to be here. I left the BBC trust at the end of 2010, having served for six years as its first national governor and then as national trustee for Scotland. I remain chairman of the BBC Pension Trust Ltd, so I still have some links with the organisation, but they are, in effect, as an independent member of the pension trust; I have no other links with the BBC trust.
I wish to pick up on what the Calman commission recommended, which was that the Scottish ministers should, in the future, determine the appointment of the BBC trustee from Scotland. Our interpretation of clause 17 of the Scotland Bill is that, although that decision regarding a trustee would require the consent of the Scottish ministers, the actual decision would still be made by UK ministers. Do you have a view on whether or not that meets the terms of the Calman recommendation?
That does not appear fully to meet the proposal that was set out by Calman. What really matters in my view, however, is that whoever is the member for Scotland on the BBC trust must have the confidence and ability to satisfy both the UK Government and the Scottish Government. That person is a member of the UK board, with all the responsibilities that that includes, but is at the same time the member for Scotland, which involves chairing the BBC audience council Scotland and having particular responsibilities to licence fee payers in Scotland. It is important that both elements of the role are appropriately fulfilled and therefore that whoever is appointed has the confidence of both the Scottish Government and the UK Government that they are able appropriately to fulfil those roles.
Does the proposed arrangement strike the right balance?
That will depend on precisely how it is implemented, but my understanding is that what is proposed under the bill is that an agreement should be reached on who should be put forward, and that the appointment should be made following consideration by Scottish as well as by UK ministers. I suspect that my successor, who is now in post, went through a similar interview process that involved representatives of both organisations.
In your experience as a governor and as a trustee for six years, would you have been inhibited or assisted in any way in your deliberations if you had been appointed only by a Scottish minister rather than by a UK minister?
The difficulty is that, at times, one must consider matters on which a genuine UK issue is at stake. In such circumstances, there are advantages in the appointment being made by both sides that enable one to fulfil the function.
Thank you very much. My questions have been answered fully.
Good afternoon, Mr Peat.
I think that I am clearer on my position on MG Alba than I am on how the digital channel can be progressed, which is an extremely complex issue. Money comes into it to a rather large extent.
On funding, Mark Thompson certainly suggested that BBC spend in Scotland should move towards population share. Do you think that the influence that the Scottish Government might have over appointments to the BBC trust might help in getting that kind of shift in investment by the BBC, as opposed to the current arrangement or the proposed halfway house?
I think that what Mark Thompson has proposed, and what the trust has carried forward, has been that network commissioning in Scotland should be proportionate to population share. That is an important development that will aid the sector in Scotland and will help to deliver the interests of licence fee payers throughout Scotland.
Do you recommend that we suggest amendments that would put such accountability into the bill?
That is for you and others to consider. I am not sure whether it requires amendments to the bill. I do not believe that there would be any difficulty if you were at any time to seek the presence of the trustee and BBC Scotland or the BBC executive on, say, an annual basis. I do not think that that would cause any problem. I was just saying that that is the way that I believe that accountability can be enhanced. To me, that would be more valuable than simply a transfer of responsibility for the appointment from one minister to another. I believe that the dual agreement will yield the best result.
Jeremy, thank you very much for your evidence and for joining the committee today. We will pause for a moment to allow the next panel to take their places.
We will now look at elections in Scotland. Sir John Arbuthnott, who we had hoped would be able to join us today, is unfortunately unwell and unable to attend. We are delighted to welcome to the committee Mary Pitcaithly and Chris Highcock of the interim electoral management board for Scotland. I invite Mary and Chris to make opening remarks before we go to questions.
Thank you very much. We have not prepared anything in particular. I am happy to try to answer questions from members on elections. I am here as chair of the interim electoral management board. For members’ information, I am also a returning officer and the regional counting officer for the referendum, which is to be held—or potentially to be held—on 5 May. Mr Highcock is secretary to the board.
Thank you. You will be a busy woman, so we will try not to detain you too long.
Obviously, the best way of ensuring that you have the power to do something that you anticipate when you draft a bill is to be absolutely specific about it. In the absence of that, however, I am sure that the committee’s deliberations will help you to reach a conclusion about whether something more specific or detailed has to be said on the matter.
The bill will transfer some administrative powers from the Secretary of State for Scotland to the Scottish Government, but not the legislative power over elections, which will remain reserved. Does that have the potential to create confusion?
Returning officers have long cherished the idea of having a consolidated piece of legislation that covers everything that could potentially relate to elections—or one piece of legislation for each of the main elections—as we would be able to keep a copy of that on our shelves and get rid of the other copies of all the other pieces of legislation that we have gathered over the years. In the absence of that, there is always the potential for confusion.
It might not be that unusual, but everyone would agree that the 2007 elections were an absolute debacle, which is why Gould was tasked with examining the elections in Scotland. Gould’s recommendation, which was supported by all the parties in the Parliament, was that only by fully devolving the powers of the election could we avoid a repetition of the confusion and disenfranchisement that surrounded the 2007 elections. Do you support the Gould report and the views that were expressed by all the parties in this Parliament at that time?
I have no difficulty whatever with the findings of Mr Gould. I did not interpret his findings as suggesting that the entirety of the 2007 election was a “debacle”. There were many things about that election that went well, although there were some things that did not go so well. I have not read the Gould report in detail recently, but I had no difficulty with its findings at the time, and I understand that Parliament endorsed those findings.
Under the bill, the Secretary of State for Scotland will retain a number of responsibilities, including voter registration, rules about the composition of the Parliament, the procedure for filling a vacancy in a regional seat and the rules relating to disqualification. Those areas are to be covered by separate Scottish Parliament rules that are to be made by the Secretary of State, but there is no requirement at the moment for the Secretary of State to consult the Scottish ministers about those rules. Would it be preferable if the provisions called for consultation between the Secretary of State and the Scottish ministers on any proposed changes in those areas?
The bill provides for consultation the other way, but I think that it would not be at all unreasonable for it to require there to be mutual consultation.
There should also be consultation of the practitioners who are involved—it is not just a matter for legislators. We all need to be involved in the decisions that are being made.
Would not a much cleaner solution be simply to have all those matters fully devolved, as was the expressed will of the Parliament and as was suggested by Professor Gould? That could be done rather than have the complications and potential for confusion to which you referred earlier. That solution should be considered particularly in the light of the issues relating to the 2007 elections and the potential complications, which are being widely aired, with the alternative vote referendum being held on the same day as the Scottish Parliament elections this year.
I think that I have already acknowledged that there is potential for confusion, but I suspect that difficulties would not necessarily be avoided either by having responsibilities entirely reserved or entirely devolved. What matters is the quality of the legislation that is passed by whichever chamber has the responsibility for it.
I understand the point that you are making and am sure that it is correct, but can you see the logic for the division of responsibilities that is proposed in the bill, which would mean that the Secretary of State for Scotland would retain powers over the things that the convener outlined, which would not be devolved to the Scottish ministers?
We understand some of the approach, with the franchise being a UK issue at the moment, but as Mary Pitcaithly said, we have been asked to comment on policy issues. Our job is to implement rather than to develop policies.
Are you convinced by that logic? Is there a strong enough reason for keeping responsibilities split in the way that has been proposed?
I can certainly see the logic in such an approach where it is desirable to have consistency across the UK, but perhaps somebody can explain the logic to me where things are less obvious. I presume that the main driver for what has been proposed is the desire for consistency on matters that affect the whole of the UK.
On matters of consistency that affect the whole of the UK, surely the rules or procedures for filling a regional seat vacancy in the Scottish Parliament have less to do with the UK Government than the Scottish Parliament, but the Secretary of State will be able to make rules on that without any consultation of the Scottish ministers or the Scottish Parliament. Do you find that a bit strange?
That is certainly an area in which consistency is not immediately obvious.
I thank Mary Pitcaithly and Chris Highcock for their evidence, which is very helpful. I am sorry that the session has been so brief.
I welcome the next panel of witnesses, with whom we will look at the provisions of the bill concerning airguns. We are delighted to be joined today by Colin Shedden, the director in Scotland of the British Association for Shooting and Conservation; Tom Ewing, temporary assistant chief constable of Fife Constabulary, who is here today representing the Association of Chief Police Officers Scotland; and David Scott, who is accompanying Tom Ewing.
Thank you for coming. We are dealing with the partial devolution under the bill of legislation on air weapons. I invite you to put on record your views on whether that is a good thing. Should the issue remain reserved, or should it be devolved in the way that the bill suggests? Given some of the comments that you have made, would there be any merit in full devolution of the issue?
I will put the issue in context. The best estimate is that there may be as many as 500,000 air weapons in Scotland. At the moment, those weapons—apart from the most dangerous, which are classed as section 1 firearms under the Firearms Act 1968—are unregulated. ACPOS’s position is that, in an ideal world, to avoid confusion, one set of legislation would be the best option for licensing. However, if the Scottish Parliament decided that it wished to license air weapons, we would be happy to be involved in consultation on the issue.
I agree with Mr Ewing that, in an ideal world, firearms would fall under one legislative competence. Partial devolution of firearms legislation is the worst-case scenario and would cause a lot of confusion.
Arguably, the test of whether the provisions in the bill are workable is how precise and understandable the definition of an airgun is, especially against the background of the exception for specially dangerous weapons, responsibility for which is reserved to the UK Government. Is the definition workable in policing terms? Will it allow you to identify what is and is not a devolved airgun?
This is a complex area. In terms of poundage, airguns may be considered section 1 firearms, but there are various opinions on what constitutes a lethal air weapon. It is simplistic even to define it as a weapon with 1 joule of power, because the dangerousness of a weapon depends on the projectile that is used, as well as on the weapon’s poundage. Paint-ball guns are a good example. Their power may exceed 1 joule but, because of the nature of the missile that is used, they do not ordinarily cause serious injuries. What constitutes a dangerous air weapon, below the level of those that are already classed as section 1 firearms, is a complex issue.
I suppose that the other possible outcome of all this discussion is the devolution of all firearms legislation to the Scottish Parliament. Is that a practical solution? What issues might arise if such an approach were taken? There might be issues to do with the border and the movement of weapons, for example.
There is an elegance to the complete devolution of firearms legislation, which would give an opportunity for review. Review is much needed, because the legislation is complex and virtually unworkable in certain areas. However, the complete devolution of firearms legislation to Scotland would introduce pretty complex cross-border issues—indeed, the devolution of airgun legislation will do that.
I am not sure that I entirely follow. Will you expand on what you said?
The issue is that people will come to the UK with airguns, as they do now. Currently, airguns that are under the 12 ft lbs limit do not fall under any legislative regime. If Scotland had its own legislation, under which people who were resident in Scotland had to have some form of licence and security for their airguns, it would be only fair to expect people who came to Scotland with an airgun to fall under similar provisions or to have a visitor permit—or something along those lines. That would add layer on layer of bureaucracy to an activity that is currently taking place with few real issues or problems.
Do members of the British Association for Shooting and Conservation Scotland travel around the country to go to competitions that involve the type of airguns that might be devolved?
There is a series of competitions that involve airguns for target shooting, which take place in Scotland, south of the border and elsewhere in Europe. The Commonwealth games and the Olympic games also feature airgun shooting, so there is a pretty big international picture.
Given that competition takes place at international level, is it not the case that the regulation of such matters is already complicated, in that there are different rules in different jurisdictions? It cannot be unreasonable to assume that people who want to be involved in competition shooting must already address such issues. Where is the problem?
It is not unreasonable to assume that. However, there are not many restrictions on the use of low-power airguns as used in the Commonwealth and Olympic games.
Perhaps Mr Ewing will tell us whether we have a problem with airguns at all in Scotland.
That depends on the definition of “problem”. Statistics for 2009 showed that there were 92 injuries from air weapons, of which 15 were serious. That is in the context of there being some 500,000 guns.
Mr Ewing, did you say that there are 250,000 unregulated air weapons in Scotland?
The best estimate—and it is an estimate—is that there could be as many as half a million air weapons in the country.
Sorry, I picked up the wrong number; there are some 500,000 unregulated weapons.
I take it that Mr Mundell was referring to the air weapons that are prohibited under the Firearms Act 1968, such as revolver-type airguns and those over a particular poundage.
Is it your perception that the number of air weapons is growing in Scotland?
That is a difficult one to answer. I do not think that we are seeing an increase in dealers selling them. The problem is that, when the weapons are not licensed, it is difficult to come up with an estimate: 500,000 is an estimate because there is no licensing system. It is therefore difficult to have any idea whether the numbers are increasing. The feeling is yes, but it would be difficult to provide science or evidence for that claim.
So, in essence, we need some sort of licensing scheme to allow us to get a true picture of how many air weapons there are in Scotland.
There is no measure at the moment—to get some sort of measure of what is out there would require some form of licensing scheme.
I have a couple of questions. First, I offer my apologies for not being here at the start of your evidence session; I was attending another meeting.
It is often quoted in the press that Scotland has a particular problem with air weapons and that there is an increasing problem with firearms offences in Scotland. The figures that we present in our written evidence show that there is a declining pattern in both. The particular problem in Scotland does not exist: there are proportionately more air weapon offences in England and Wales than there are in Scotland, as there has been a significant decrease here in the past 10 years.
Do you have a police perspective, Mr Ewing?
I do not have an intimate knowledge of the England and Wales figures, but my perception is that they are reducing, as the figures for Scotland have been since 2006 when the last spike occurred.
Head for head, is there any reason to suggest that the problem requires particular and special Scottish attention as opposed to attention on a UK-wide basis?
Not that I am aware of.
More than half of all firearms offences in Scotland last year involved an airgun. In England, just over a third of all firearms offences involved an airgun. Surely those figures suggest that there is a distinct problem in Scotland.
You could argue that both ways with regard to firearms offences: for example, you could say that there is less of a section 1 firearms issue in Scotland than there is in England and Wales. Again, I do not have an intimate knowledge of England and Wales—it is probably open for analysis, but I cannot give a definitive opinion on where the England and Wales figures are going.
I thank the witnesses for their answers. As you will be aware, this panel is primarily dealing with the issue of airguns. However, while we have a police representative here, it will be very valuable to have his thoughts on the issues of the drink-driving limit and the speed limit, to which we are just coming.
ACPOS welcomes the bill’s provisions on the drink-driving limits. We have long campaigned to reduce the problem of drink driving on Scotland’s roads, and the drink-driving limit offers one way in which that could be done.
Might it also be better if there was full devolution of the issues to do with alcohol levels? At present, there are no proposals to devolve issues to do with the tests or the penalties for breaking the law.
Are you suggesting that the penalties would change as well?
As I understand it, there is no intention to devolve issues to do with breath tests or the level of penalties for any breach of the law. Would it not make sense to devolve the whole package?
I think that the current powers are sufficient. Obviously, it is a matter for the courts and not for the police. Our position is that a reduced drink-driving limit would assist the police in enforcing and, hopefully, reduce the number of deaths on the roads.
Not devolving issues to do with random testing might also have implications for safety. I cannot understand why that and the penalty regime for any breaches are not being devolved as well.
Sorry, I maybe misunderstood your question. Although the penalties are probably sufficient at the moment, random breath testing would certainly be of benefit to policing enforcement.
If there were powers in Scotland to set speed limits on national roads, do you envisage any safety implications arising from traffic coming north of the border that would be unaccustomed to a different speed standard and, equally, from traffic heading back south?
Yes, that is one of the reasons for my point about the national speed limit sign meaning two different things. It would probably be better if the sign had a number.
Do you think that, if there is a problem, it could be addressed by different signage and that that might be sufficient to take care of the problem?
The problem is not insurmountable.
I think that mainland Europe, which has many different countries, copes very well with having different speed limits from country to country. I see no reason why that should not happen between Scotland and England.
Again, I do not think that there would be insurmountable problems. It is almost the same argument as with the national speed limit, is it not? If the national speed limit was different in England and Scotland, would it be different for a lorry driver or a coach driver? Yes, it would. Again, however, I do not see the problems as insurmountable.
Let me understand, because maybe I did not explain my question fully. Are you saying that, if all speed issues were devolved to the Scottish Parliament, including for lorries, buses and the towing of caravans, that would not be an insurmountable problem?
I do not think that it would be. ACPOS has a position, in that we would probably not like speed limits to increase.
Provided that we kept speed limits the same or reduced them, you would be quite happy.
Yes.
Thank you.
I thank the witnesses for their time and suspend for a few moments to allow the next panel to take their places. Thank you, gentlemen.
I welcome the next panel of witnesses, with whom we will focus mainly on drink driving and speed limits. We have before us Neil Greig, who is known to many and is the director of policy and research at the Institute of Advanced Motorists; Kathleen Braidwood, who is road safety officer for the Royal Society for the Prevention of Accidents Scotland; and Phil Flanders, the Road Haulage Association director for Scotland and Northern Ireland. Welcome, ladies and gentlemen. Does anyone wish to make a couple of opening remarks? If not, we will move straight to questions.
I represent ROSPA, whose mission is to save lives and reduce injuries. We welcome the opportunity to be represented here today, to enable Scotland to lead the way in the significant aspects of casualty reduction with regard to road safety, reducing the drink-drive limit and reviewing the speed limits.
I thank the committee for the opportunity to speak to you today.
Will you expand on which amendment that is?
If I can find it. It was in a document that came out today on speed limits—the Government has taken some legal advice. I think that it was circulated earlier today.
The amendment would allow a change in national speed limit for classes of vehicles other than simply cars.
Good afternoon. Will you indicate to me why it is thought that the Scottish Parliament has a keener interest in reducing the drink-driving limits than does the Parliament at Westminster? Is the road and public safety agenda not shared between both Parliaments? Why is the reduction not simply being enacted UK-wide?
Obviously there is a shared interest in road safety in both Parliaments—I hope that it is fairly fundamental. The issue is that there has perhaps been a greater degree of coherence among safety organisations in Scotland, the police and local authorities in campaigning for a lower limit, which has led to a little frustration at the slow pace of change.
Therefore, you are in favour of the devolution of the power because you think that it will facilitate a particular policy outcome, which is not the same as saying that the power should be devolved. If the power was devolved and a policy outcome that you disapproved of was put forward, would that mean that you were not in favour of the devolution of the power?
Our concern is not the devolution of the power but how the power is used. Our expertise is in informing the Scottish Parliament and the Scottish Government what might happen if the power were enacted. Clearly, the implication that we are hearing about is that there would be a reduction in the drink-drive limit. That is certainly worth trialling and piloting, because it is working in other areas, and we have a fairly consistent level of drink-drive offences and deaths in Scotland, which needs to be attacked.
If the UK Government came forward next month to say that it was going to introduce a bill to reduce the drink-driving limit across the United Kingdom from 80mg to 50mg of alcohol per 100ml of blood as soon as possible, I presume that you would be happy with that and, therefore, would not think that it is necessary to devolve the power.
We would be happy. We would raise exactly the same concerns, information and approach—
But that would be on your outcome. You would not be bothered whether the power was devolved—is that correct?
Yes.
What is the ROSPA position?
As a UK national organisation, we would like the reduced drink-drive limit to be rolled out across the UK. The Great Britain strategy “Tomorrow’s roads: safer for everyone” in 2000 highlighted that reducing the limit to 50mg would reduce fatalities. We have had 10 years to consider that under the GB strategy—we had the North review last year and then the House of Commons Transport Committee inquiry into drink-driving limits—but there has been no movement.
Forgive me—I am not familiar with the details—but I take from what you have said that neither the North review nor the House of Commons Transport Committee report recommended a reduction in the drink-driving limit.
The North review recommended a reduction—
From 80mg to 50mg?
Yes. It examined the issue very closely and highlighted examples of good practice from Europe, Australia and America that had worked and the impact that they had had. One of the review’s main recommendations was to reduce the drink-driving limit, but it seems to have gone nowhere.
What about the House of Commons Transport Committee’s report?
It looked at the drink and drug-driving situation in August 2010, but I am not sure where those deliberations have gone or what has happened to them.
Is there any logical reason for devolving power to set the alcohol limit but not powers to introduce random breath testing or to set penalties for drink driving? Would it not be more coherent to devolve the other two powers to Scotland?
In its response to the North review and the House of Commons Transport Committee, ROSPA recommended the introduction of random breath tests, greater police powers, a higher police profile with regard to drink driving and maintaining the same stringent penalties.
But in your opinion, should this committee recommend in its report that all powers over drink driving, including random breath testing and the right to set penalties, be included in the bill?
From a road safety point of view, if we are to reduce casualties and injuries on our roads, one can only conclude that the penalties are right but that there is a need to lower the limit. In fact, one might even consider lowering the limit even further, because any amount of alcohol can impair drivers’ judgment and affect their ability to drive safely.
I tend to agree with Kathleen Braidwood. However, the IAM’s one concern about lowering the limit is the implications that such a move would have for police enforcement. A detailed look at the statistics shows that those who kill as a result of drinking and driving are often two or three times over the limit; in other words, they simply ignore the limit and drive illegally. If you dilute police effort by stipulating that they catch people at a lower limit—who, although not having fatal crashes, are still breaking the law and should not be drinking and driving—you might ultimately end up with the police catching people who are not killing others on the road and therefore having no real impact on road safety.
The normal precursor to measuring the blood alcohol level is a breath test. It would be better to devolve control over the circumstances in which a breath test might happen, given that a larger group of folk might be affected. Does that suit the logic of your position?
Absolutely. The fear of being caught is the biggest deterrent to drinking and driving. In Scandinavia, people expect to be stopped and tested all the time, whereas people are stopped fairly infrequently in Scotland, so the fear does not exist. All those matters are linked together as a total package on drink driving.
I understand entirely that, for road safety reasons, all three witnesses want the drink-driving limit to be reduced and perhaps want other changes. That does not necessarily require a power to be devolved rather than exercised by the UK, except that you assume that a devolved power would be used faster. Is that fair? I do not want to misinterpret your evidence.
The landscape in Scotland is different, because we have the road safety framework to 2020. Legislation on some matters also differs. For example, in the recent ACPOS campaign on drink driving, a forfeiture scheme was introduced in Scotland. That could be done because Scotland has some unique legislation. It would be good to continue the momentum to reduce casualties and injuries on our roads and to promote road safety by making it clear that drink driving is really antisocial and by influencing public opinion. We have gone down the route of the forfeiture scheme in the past 12 to 14 months as a way of gaining momentum.
We need a number of different weapons, as it were.
We move on to speed limits. I plead with the panel and committee members to try to focus on whether powers should be devolved or reserved rather than on the desirability or otherwise of policy change, because panel members have different views on the way forward for speed limits. With that caveat, I call Brian Adam.
I ask Phil Flanders whether any confusion could result from devolving the suggested powers to set speed limits, which could mean different sets of speed limits here from those south of the border. Some speed limits would continue to be controlled from London and some would be controlled here. How would the RHA expect that to pan out?
We think that speed limits in Scotland should be set in Scotland, because of the differences in the roads. The vast majority of roads in Scotland are rural roads. Local knowledge of how safe those roads are, and of the volumes of traffic concerned, means that there would be a benefit from speed limits in Scotland being dealt with in Scotland, rather than at Westminster, where the majority of people have probably never been in Scotland or seen the roads here. There are differences, and we believe that the Scottish Parliament is best placed to make the decisions for the roads here.
What response would you give to WWF, which is in favour of devolving powers, but in order to reduce speed limits? You suggest that it would be safe and sensible—and perhaps even environmentally friendly—to increase speed limits on some of Scotland’s roads.
We are coming at it from an economic point of view. Take the current 40mph speed limit for lorries. Most roads in Scotland could probably cope: most roads have a 60mph limit for cars, and most car drivers are sensible when they go round corners and so on. Lorry drivers and van drivers are the same: they know that the speed limit is the maximum, and they know that they will not be able to reach the maximum speed on many occasions.
Presumably, that would be possible only if the power over speed limits was increased, but that is not in the bill at present.
We are disappointed that that is not in the bill. We had hoped that that would be included, and we would like it to be in the bill.
Are you advocating that, if such devolved powers existed, there should be a different speed limit for the A9, for example, as opposed to other A-class roads, or that all roads of that standard should be covered?
Not every road will be as suitable as the A9, but the A9 would be ideal for a trial. Neil Greig can correct me if I am wrong about this, but the speed limit for cars on all single-carriageway roads in Scotland is 60mph unless otherwise specified. Buses have different speed restrictions. They can do 50mph on A-class roads, 60mph on dual carriageways and 70mph on motorways. For lorries, the respective speed limits are 40mph, 50mph and 56mph. If we consider the chassis of both types of vehicle, we see that the vast majority of them are identical—they are a lump of metal with a wheel at each corner. If it is okay for buses to do those speeds, why can it not be okay for lorries to do them?
You have illustrated why, because of the unique circumstances, there is a case for having separate powers in Scotland—it is because of the proportion of our roads that are not motorways or dual carriageways. Do the other panel members agree? Are there unique things about Scotland that justify a new devolved power?
The unique feature of Scotland is that it has a much greater length of road per head of population. Whichever way we look at it, we have a much greater length of single-carriageway roads. We also have a higher proportion of rural fatal crashes. In Scotland, about 75 per cent of fatalities are on rural roads; in England, it is about 66 per cent. There is a uniqueness there, if you wish to put it that way.
Of course, there is a tension in the evidence that we have had, to which Brian Adam has alluded. If the outcome were that the speed limit on the A9 went down rather than up, you would not be in favour of devolution—or would you? Is it perfectly legitimate for responsibility for that decision to be devolved, or is it the case that, as Mr McLetchie suggested in relation to drink driving, you want a particular outcome? The problem is that each of you wants a different outcome. WWF wants speed limits to come down for environmental reasons and ROSPA wants them to come down for safety reasons, whereas the RHA would like them to go up slightly. Does that negate the argument about devolution, or is that the nature of the devolution argument?
If the speed limits came down, we would have to accept that, but it would not prevent us from lobbying for them to be changed again. People would have to make a balanced judgment about how that would affect the economy. It would affect the economy badly and it would not do anything for road safety, because people would still speed. We would have no choice other than to accept it, just as we would have to do if Westminster took the decision.
I want to be clear that you are arguing for the power over speed limits to be devolved not simply because you want the speed limits to be changed, but because there are unique circumstances that require to be addressed. Is that correct?
Yes.
Does that go for ROSPA as well?
I looked at the issue only from the point of view of the national speed limits of 60mph and 70mph. ROSPA’s view is that all the research shows that excessive speed and inappropriate speed for the conditions are a major accident causation factor. In Scotland, travelling too fast for the conditions and exceeding the speed limit accounted for 75 fatalities last year. As Neil Greig says, three out of four fatalities are on rural roads.
You heard my question to the policeman about whether having different speed limit regimes north and south of the border would have any cross-border implications. Would that be entirely manageable through signage?
The signage would just need to be clear—drivers need to be properly informed.
Do the rest of the panel agree that the cross-border issue would be manageable?
It would be manageable. It is a signposting issue, but it is also a matching issue. If the speed limit matches the road environment, the vast majority of drivers will adhere to it. Recently, we did a poll of 3,000 visitors to our website—who are meant to be advanced drivers, of course—and, surprisingly, the top reason that they gave for speeding was that they did not agree with the limit that had been set. There is a lot of research to suggest that if there is a dichotomy between the fact that a road is nice and open and the fact that it has a 30mph limit on it, drivers wonder what is going on and they are more likely to speed. Provided that the speed limit matches the road environment, there will not be an issue and people will drive at the right speed anyway.
I have one final question for the panel. The proposal before us is for the power to change the speed limit for cars to be devolved, but we have touched on some of the complexities surrounding the limits for caravans, buses and commercial vehicles. Does anyone see merit in devolving control of the national speed limit for cars to Scotland but retaining uniformity as regards other vehicles, which is where we are with the bill at the moment?
From my point of view, people do not understand the complicated area of speed limits for trailers, caravans and heavy goods vehicles, so if you added an extra layer on to that, my gut feeling is that that would be a complication. If the power was just for cars, people would understand what that was about.
ROSPA’s view is that if you are going to alter the speed limit for cars, there is a need to address corresponding limits for other types of vehicle, so that the differentials are not so great and therefore we do not have such high-speed impacts.
The issues here are to do with economy, safety and the environment. Do the panel members believe that if you reduce speed, you improve the environment? Alternatively, is it counterintuitive, so that if you increase speed, you improve the environment?
If you reduce speed, you improve the environment for people living in the vicinity of roads.
That is in terms of safety. I suppose that I was really talking about pollution. The RHA has employed some arguments around safety, whereby if you have a convoy—for want of a better description—of heavy goods vehicles going up the A9 at 40mph, you will build up a lot of frustration behind it and then you will get increased accident levels, which you might not get if the speed limit was 50mph. That is certainly the RHA’s view. Do other members of the panel share it? On fuel efficiency, current road haulage vehicles actually perform better at 50mph than at 40mph. Is that fair comment?
My view is that the issue is much more complicated than just the speed limit. It is about congestion, free-flowing traffic, hold-ups, crashes and so on. All the things that stop free-flowing traffic add to the amount of fuel that people use, as does how they accelerate. If everybody travelled at a consistent level, that would be great; you would have the best possible eco-driving, if you like. One of the things that we do not train our drivers to do is to drive to the full eco-potential of their modern vehicles. I do not think that speed limits are a huge eco-issue; for us, they are more of a road safety issue.
Given that there is already a whole range of speed limits on the same road, I assume that having a different set of speed limit signs as you come across the Scotland-England border would not make any difference. The question is where the limits are best set. This is the mirror image of the point that Mr Peacock and Mr McLetchie made. Where do you think that the speed limits are best set for Scotland’s trunk roads and A roads outwith built-up areas?
For us, it has to be where the risk is highest. There is a well-accepted system of risk mapping. We know where the crashes take place and where the roads with the highest number of crash incidents are. Speed limits should be part of the armoury of the road engineer in trying to address the problem of road safety. For us, it is about how the power would be implemented. It would give that extra element of flexibility to tailor limits for specific Scottish needs, such as the rural issue, but it should not be a blanket; it should be targeted at those areas where we know that there is a crash problem.
Would that include HGVs as well as motorcars?
Absolutely. I am very much with Phil Flanders on using the A9 for a pilot trial. For us, it is about where the crashes take place and whether there is a speed-related problem there—there would be an extra speed limit that you could apply to that location.
But not caravans?
As I have said, I think that that would just complicate the whole issue.
I want to be clear about the difference. I understand that the national speed limits relate to all vehicles, not just cars, and that, on top of that, lower speed limits apply to lorries, buses, caravans and so on. The two sets of speed limits are in different sections of the Road Traffic Regulation Act 1984. My understanding is that the national speed limits—the 60mph, 70mph and 30mph—relate to the safety of the road, whereas the other ones for buses and lorries relate to the safety of those vehicles, in relation to their sheer size, ability to corner and so on. Am I right in thinking that, or is there some other reason for distinguishing between general vehicles and heavier vehicles of certain classes?
The stopping distances are different. The highway code gives a stopping distance that is estimated on a reaction time of 0.7 seconds. The stopping distances for larger vehicles are greater than those for cars, because of the increased weight of the vehicle.
But am I right in my general proposition that the distinction in the legislation between the section that deals with national speed limits and the section that deals with buses, lorries and caravans is the difference between the road on the one hand and the vehicle on the other, and that the latter distinction is to do with factors such as the size and make of the vehicle?
I cannot say for certain what the thinking was. As was said earlier, a lot of the limits were set decades ago, when vehicles just could not achieve those speeds. Of course, we now have a European level on top of that, which means that the biggest lorries are speed limited anyway, so there is a certain limit that they will never legally go above.
I thank the panel members for their time. The area is complex, as you have beautifully elucidated for us today.
I welcome the next panel. We are about to deal with some legal issues that the committee finds rather challenging, so we look to an immensely expert panel to help us in that endeavour. The most significant matter that we hope to cover relates to section 57 of the Scotland Act 1998, so we will deal with that first. We will then move to clauses 7, 10 and 16 of the Scotland Bill. I say that by way of guidance to the panel, so that witnesses can identify the areas about which they have more to say. I invite members of the panel to introduce themselves.
I am dean of the Faculty of Advocates.
I am the convener of the Faculty of Advocates law reform committee.
Good afternoon. I am the director of law reform at the Law Society of Scotland.
I am a partner with the law firm Brodies and the convener of the Law Society’s constitutional law sub-committee.
I was a European Court of Justice judge and I was a temporary Court of Session judge. I am a University of Edinburgh professor emeritus.
Thank you very much.
Right. Under the Scotland Act 1998, the Lord Advocate is a Scottish minister. Section 57(2) of that act states that an act of a Scottish minister is ultra vires, or incompetent, if it
You might or might not have seen them, but I wonder whether you are able to comment on the Lord Advocate’s thoughts on the matter, which have been shared with the committee in the past 24 hours.
It is perhaps significant that in their submissions to us the Scottish Government, the justice directorate, the Scottish Law Commission and, indeed, the Lord Advocate all said that the Supreme Court’s jurisdiction should be totally brought to an end. Our view was that there was a case for giving the Supreme Court some jurisdiction, but not in the form in which it had previously existed.
I am minded to hear other panel members’ views before I seek questions from committee members. Mr Keen and Mr Clancy, do you have comments to make?
Convener, do I understand your reference to the recent material to refer to the Advocate General rather than the Lord Advocate?
Forgive me. The Scottish ministers have responded to us, attaching the Lord Advocate’s thoughts. I am aware that the Advocate General is broadly in favour of the proposal. Given the time limits, we are trying to establish the degree of consensus or otherwise that exists around the policy intention set out in the expert group report.
I am obliged. Briefly, for clarity, if I refer to the Supreme Court, I use that reference to embrace what was previously the Privy Council and the jurisdiction of the House of Lords.
Michael, would you like to add anything on behalf of the Law Society of Scotland?
Yes, convener. Thank you. The Law Society is in a slightly different position from either the dean of the Faculty of Advocates or, indeed, members of the expert group that the Advocate General established to look at the issue. We responded to what was described as the informal consultation by the Advocate General last year and, at that point, we took the view that it was not appropriate to remove the Lord Advocate from the ambit of section 57(2) and that, instead, the so-called criminal jurisdiction that the Supreme Court was exercising in relation to devolution minutes actually emanated from the Scotland Act 1998—from contraventions of ECHR or convention rights as defined in that act. That they arose within the context of criminal cases, I cannot gainsay, but nevertheless they were more centred on the human rights issue than on the criminal law, properly so called.
You reveal more than you intend, Michael.
Others might have only passing relationships with devolution minutes.
Christine, would you like to add any opening remarks?
I do not want to detain the committee on this point, as there has been quite a lot of discussion already. Those in the room who know me will know that one of my best qualities is the ability to be self-righteous, so I will be a little self-righteous to begin with.
I am sure that the panel will be extremely gentle with me. I come to the issue completely new, so this may be the daft lassie question. As I understand it from what Professor Edward was saying, the problem—if it is a problem—is that the Lord Advocate is both a Scottish minister and the independent head of the prosecution service. Could those difficulties not be resolved by removing the Lord Advocate as a Scottish minister and keeping her as the independent head of the prosecution service? Would that not be a more elegant solution than what the expert group has advanced?
With respect to Michael Clancy, I think that he should read what we said about the position of the Lord Advocate. We have set out in detail why the Lord Advocate’s retained functions are retained functions. That is at paragraph—I cannot remember where, but it does not matter. The Lord Advocate has always had two hats: one is the autonomous hat as head of the system of public prosecution, and the other has been as a minister of the crown. That set-up remains.
In 2007, one of the first acts of the new Scottish Government was to remove the Lord Advocate from the Cabinet to depoliticise her role, notwithstanding what is in the Scotland Act 1998. If there is a conflict because she is simultaneously a Scottish minister and the independent head of the prosecution service, I would like someone to explain why it would be more difficult to remove her as a Scottish minister than to go through the convoluted series of amendments that we are looking at now.
With great respect, it is not convoluted; it is straightforward. The Lord Advocate would retain certain executive and ministerial functions. The fact that she is no longer a member of the Cabinet does not remove her executive functions.
Why can we not just remove the executive functions?
Because the Lord Advocate has to exercise them.
Could someone else not do that?
I do not think that our function is to reform the system of government of Scotland; it is simply to overcome a problem.
I am suggesting that there might be an easier way to overcome the problem that has arisen. I bow to your greater knowledge, but if the problem is that the Lord Advocate is simultaneously a Scottish minister and the independent head of the prosecution service, and that those two roles are incompatible, which is why we are where we are with the amendments, would it not be a more elegant solution to remove the Lord Advocate’s functions as a minister of the Crown? Could those functions not be carried out by someone else, leaving the Lord Advocate as the independent head of the prosecution service?
With great respect, it is not a question of the incompatibility of the Lord Advocate’s functions, but the fact that there are two separate functions. They are perfectly compatible and have been so for centuries. The Lord Advocate used to be the equivalent of the Secretary of State for Scotland and has always had executive functions.
There is a division of functions in England and Wales. The Director of Public Prosecutions is not a member of the Executive and the Attorney General is a minister of the Crown and is also able to instigate prosecution in appropriate circumstances. There is a separation there. Historically, both functions have been held by a single individual.
What we are discussing is reminiscent of the previous Government’s attempts to deconstruct the Lord Chancellor’s office and the complications around that.
Briefly put, the term “devolution issue” is just a label for a series of questions that might arise. One of those questions is whether an act of the Parliament is compatible with convention rights. At the moment, another devolution issue is the question whether something that the Lord Advocate does is compatible with convention rights. As I understand the Advocate General’s proposal, a question about how the Lord Advocate has behaved would cease to be a devolution issue but the question of whether an act of the Parliament is compatible with convention rights would not cease to be a devolution issue. One can imagine circumstances in which a prosecution is taken by the Lord Advocate on the basis of a piece of legislation that is passed by the Parliament, where the question at issue is the validity of the act itself and not just the actions of the Lord Advocate—
So that might move it back a stage, as it were.
As I understand it, the question whether the act were valid would follow the very devolution issue procedure that we are talking about so, in that regard, we would be back to where we are at this point. I have no particular difficulty with that, but I wanted to make the committee aware that this solution will not eliminate devolution issues altogether from the context of criminal proceedings.
I think that the issue arises in a slightly different context. If you want to get back to us on some of the issues at a later date, when the Law Society has considered them in more detail, that would be useful.
The other observation that one could make is that devolution minutes and the procedure that Christine has outlined all stem from acts of adjournal, which might be amended in such a way as to avoid some of the practical difficulties that have arisen in relation to the 10,000 devolution issues that have arisen over the 11 years of the Parliament’s existence. There are many ways in which to get at some of the practical problems.
The ECHR is part of the law of Scotland in the sense that it falls to be applied by sheriff courts, justice of the peace courts and everyone else. Therefore, what we are talking about is whether it is applied correctly and whether it works its way up through the system.
Community law is important, too.
Community law, absolutely. So the situation is reasonably clear cut.
From the perspective of the Scottish judiciary, the difficulty is that, under the present system, you have to give notice of a claim that there has been a breach of a convention right. There are time limits and procedures that have to be gone through. On some occasions, the High Court has held that a claim has been made too late, the procedure was not followed and that is the end of the matter, therefore leave to go to the Supreme Court has been refused. However, when the matter gets to the Supreme Court, the Supreme Court grants leave and says that the fact that the High Court refused to entertain the claim of a breach of the convention right is itself a determination of the convention issue and, therefore, the Supreme Court has jurisdiction, even though the High Court has said that it will not listen to the claim, because it came too late. That has caused considerable concern.
On the point about the time limit for claims, will the solution that you are presenting—which the Advocate General recommends—resolve that problem as well as the miscarriage of justice problem?
It will mean that the case would go to the High Court by the normal process of appeal, and then, with leave, to the Supreme Court. I suppose that it would still leave open the possibility that the Supreme Court would hope that the High Court would say, “We’re not hearing this claim; it comes too late,” and would still maintain that that was a determination of the convention right. It does not solve that problem.
No—absolutely. To follow that through briefly, the issue is—as you mentioned before—not so much the number of decisions by the Supreme Court, but all the other procedural things that are lurking about, which mean that people want to go to the Supreme Court even if they are not allowed to do so. Will that fade over time as decisions are made that obviously indicate that heading in that direction is a waste of space, or will it continue, even if we stop intimating it to Jim Wallace?
One can never put a limit on the ingenuity of lawyers, but like most other things, these issues tend to go in waves. To give you an example, there was a period relatively soon after we joined the European Community—as it was then—in which it was regularly claimed in contract cases that a contract was illegal because it was contrary to the anti-trust or competition rules. Just as that faded out, it is likely, broadly speaking, that the convention issue will calm down, although it will not totally disappear.
I have a final question on that point, with regard to the alternative. One can still go to the European Court of Human Rights after the Supreme Court or the High Court as may be, depending on the procedure. Can you give us some guidance on how many Scottish judges sit on the Supreme Court and the European Court at present? Can you tell us something about the timescales and expense of the two procedures?
On the United Kingdom Supreme Court there are currently two Scottish judges, who are both former Lord Justice Generals. On the European Court of Human Rights in Strasbourg there are no Scottish judges. If a case involves a Community issue, there are likewise no Scottish judges on the EU Court of Justice.
I am keen to move things on, but Peter Peacock has a brief question.
My question is for Michael Clancy, on a procedural matter. As Robert Brown mentioned, you quite rightly reserved the position of your organisation on these matters. However, you indicated that there was superficial—indeed, probably deeper—merit in the proposals, and you wanted “adequate opportunity” to examine them.
I am not sure that anything that the Law Society might do or not do would delay the process of the Scottish Parliament.
Indeed so, but I am trying to give you the opportunity to conclude your deliberations as quickly as possible. I am wondering how quickly that would be.
I am tempted to prevent an answer to that question. Along the lines of the questioning that Peter Peacock has begun, it suffices to add that the committee briefly discussed the issues informally before the witnesses joined us. The committee desires to help in addressing the devolution minutes issue that Sir David Edward has outlined. Scotland Bills do not come along every moment, so the opportunity should be taken if it exists. That said, action should be commensurate with proper consultation by the expert groups that might have a view. A complication is that the evidence that we received from the Scottish Government yesterday indicates that it does not support the proposed solution; another issue is the Lord Advocate’s unavailability to join us today to resolve the matter.
I will follow up Tricia Marwick’s questions on the Lord Advocate’s dual functions in such matters. Are we satisfied that continuing those dual functions is compatible with the European convention on human rights? Has that been adjudicated or determined? Has it been suggested that the functions might not be compatible and that a complete separation of executive functions—or rather, the insulation of the independent prosecutorial service from any responsibility of the executive government of the country—would be sensible?
I am not aware of the matter having been adjudicated on. One must make a distinction with the situation of the Lord Chancellor, who discharged a judicial function as well as an executive function. The arguments that applied to the Lord Chancellor do not apply to the Lord Advocate. Beyond that, I wish to make no comment on a matter of such far-ranging constitutional significance.
Under the bill, we are moving to a strict separation of functions between the executive, the legislature, the judiciary and prosecutorial services. Long established our system might be, but it might not fit with jurisprudence that is based on the separation of powers.
That might be a case for a director of public prosecutions in Scotland.
Indeed. Tricia Marwick made that point in her questions.
The question of the capacity in which the Lord Advocate will speak next week is interesting. I presume that she will speak as a law officer rather than a prosecutor and in terms of her devolved rather than retained functions, although the matter that is at hand is her retained functions. I simply make that observation.
My second question might have been partly covered. I understand that the issue in relation to the proposed statutory right of appeal to the Supreme Court is whether that court—rather than the High Court in Scotland—should be the final arbiter in the United Kingdom of whether convention rights have been breached. In either instance, the ultimate arbiter would be in Europe. What is the rationale for an intervening stage? The Scottish Government’s case asks why we do not just let our judges arbitrate on such matters in Scottish courts and say that if someone is aggrieved, they can go off to Strasbourg. What is the objection to that?
There are two short answers to that: expense and delay. Considerable expense and delay are involved in getting to the Strasbourg court. You may think that there is expense and delay in getting to the Supreme Court—there certainly is—but a particular problem in Strasbourg at present, following the accession of a large number of eastern European countries to the Council of Europe, is that there is a big backlog of convention rights cases. People from Scotland who went directly to Strasbourg might wait for four or five years to have a convention rights claim determined.
I do not understand. If someone could go from the High Court to the Supreme Court under the statutory right of appeal and then—as that is not the end of the road—on to the Strasbourg court, surely the whole process would take even longer, or am I missing something?
In effect, the Supreme Court would act as a sift. It would certainly be the case that the number of cases that went to the Supreme Court would not be reflected in the number of cases that went all the way to Strasbourg. Many people’s claims would be determined at Supreme Court level without their having to go on to Strasbourg. There would a volume issue if people could go directly to Strasbourg.
I agree with the point about the UK being the signatory to the international treaty obligation, but there is, in addition, the issue of resolution. If an appeal goes to the Supreme Court, it may resolve it by quashing a conviction, for example, but we should remember that an action that goes to Strasbourg is not an appeal from the UK Supreme Court. It is an entirely new process involving an action against the UK that may result in an award of damages, but which cannot result in the quashing of the relevant conviction. Although the Strasbourg court seems to be the ultimate arbiter of a breach of convention rights, the process is different and the outcome is different.
I thank the witnesses for those helpful answers on section 57(2), on which I invite you to submit even the briefest of memoranda, because it has been outwith the formal evidence taking.
Clause 7 appears to be directed at a tension that exists between two distinct constitutional principles. First, legislation that has been validly enacted by a Parliament should come into force in accordance with the will of that Parliament. Secondly, if a Parliament has not legislated validly—in other words, if it has legislated outwith its powers—there should be a means of determining that it has done so and that the relevant legislation is not law, as it would be said in the terms of the Scotland Act.
That is an interesting suggestion, and we will reflect on it.
You refer to clause 10, which, as I understand it, is intended to be part of a mechanism for allowing the Scottish Parliament to ask Westminster for temporary powers to legislate on particular issues. The Law Society has no particular difficulty at all with that. However, we have some questions about the practical effect of clause 10 and are a bit puzzled about the need for some of its provisions.
It is helpful to have that issue discussed on the record.
So your question is about clause 16.
Yes—my apologies.
Before making some comments on the matter, I should first mention that I was junior counsel for the Scottish ministers in the Somerville case. However, I am sitting here with my convener of the faculty law reform committee hat on.
Tempting though it may be to rise to a debate with James Wolffe about the various merits of the submission from the Faculty of Advocates and our submission, I will not do so because, in a sense, that would not address the substance of clause 16. Clause 16 would replace legislation that the Scottish Parliament has passed. My anxiety revolves around that issue rather than around provisions that have already been debated and passed by the Scottish Parliament.
I think that you have given us enough to chew on. We will have the Secretary of State for Scotland with us a mere 36 hours hence.
As I understand it, the purpose of the provision is to put the making of statutory instruments in the same position as the making of statutes. Under the Scotland Act 1998, the United Kingdom Parliament has the power to pass a statute even if it relates to a devolved matter, but the United Kingdom Government does not have the power to make a statutory instrument where competence lies with the Scottish ministers. Although there is not much explanation in the explanatory notes, I understand the problem to be that many international conventions are highly technical. It is highly desirable that the implementation of such conventions should be uniform throughout the United Kingdom. The provision is simply a means of ensuring that a single statutory instrument has effect throughout the United Kingdom. It seems to me that some form of Sewel convention is needed in relation to the use of the power.
We will consider that helpful observation. Before we finish, I offer panel members an opportunity to comment on other aspects of the bill. As you will see, we are working to an incredibly expedited timetable, so this is probably the only opportunity that you will have to put other issues on the table.
Mr McLetchie had two questions. The first was about whether the position of the Lord Advocate breaches the principle of separation of powers. I was unable to note the second.
It was about why we do not allow final determination of matters in the Scottish courts. A case may go to Strasbourg, but why should there be the potential for an intermediate stage in the Supreme Court? Some other observations were made on that point. Mr Keen explained the rationale for the provision.
First, I do not believe that we are necessarily moving towards the doctrine of separation of powers; we are moving more towards a doctrine of distribution of powers. That is a point for us to discuss later. Secondly, I track back to our interesting and in-depth discussion of section 57(2) of the Scotland Act 1998. It would be helpful and extremely useful for stakeholders to see the amendments that the Government proposes to table at committee stage.
I agree. Within days, at most, of receiving them, we will formally launch a consultation inviting all interested parties to contribute on the issue, to a tight timescale. I thank all members of the panel for their evidence.