Criminal Procedure (Scotland) Act 1995 Compensation Offer (Maximum Amount) Order 2008 (SSI 2008/7)
Item 2 relates to subordinate legislation. There are two negative Scottish statutory instruments for consideration. The first is SSI 2008/7. As members have no comments, are they content to note the instrument?
My one comment is that the order enables a compensation offer of £5,000 to be made by the procurator fiscal. I personally consider it unsatisfactory that compensation of £5,000 can be payable without anyone having a conviction recorded against their name. However, the matter was dealt with in earlier legislation. I have made it clear that I do not think that it is the function of the committee to seek to thwart the wishes of the Parliament, and the Parliament voted through the principal legislation unanimously. Therefore, I, too, am content to note the instrument.
That is very consensual and also very sensible.
Discontinuance of Legalised Police Cells (Scotland) Rules 2008 (SSI 2008/8)
The second instrument on the agenda is SSI 2008/8. After the papers were issued for the meeting, the clerks were advised that the instrument is to be revoked. A letter from Scottish Prison Service officials that explains the position has been received and circulated. Members therefore do not need to comment—they can merely note that a revocation order will be made in due course.
I agree that there is not much that we can do, but it seems strange that a day before the committee was to look at the instrument the SPS states that a revocation order will be made. That is rather puzzling. Can we ask that, in future, such short notice of a revocation order is avoided at all costs?
The relevant question to ask is: what subsequent information became available that necessitated the SPS's letter of 4 February?
Like Bill Butler, my curiosity has been aroused by the fact that a cabinet secretary laid before the committee a set of rules that has been revoked in a letter from the SPS. Surely the cabinet secretary should be telling us about that rather than the SPS. I seek clarification about who is entitled to revoke instruments that are laid before the committee.
The revocation order will, in fact, come in the cabinet secretary's name, but he may wish to be made aware of the issue.
My point is that although the instrument was laid by the cabinet secretary, we have nothing from him revoking it; we have a letter from the SPS. My argument is that if the cabinet secretary lays an instrument, it should be the cabinet secretary who revokes it; we should not be basing our decisions on a letter from the SPS. Are we opening the door to allow any other organisation that may be the subject of an order to say, "We are asking for the instrument to be revoked, so we do not want the committee to consider it"?
I agree with a lot of what John Wilson said but, given that the SPS would not say that a revocation order will be made without the cabinet secretary being aware of that—at least informally—and agreeing to it, it is in order that we inquire as to why circumstances changed so dramatically and so suddenly.
John Wilson has raised a valid point. I would like clarification on what the changes were—they seem to have taken place within a matter of days. Perhaps we should consider having an understanding between the committee and the cabinet secretary that, if he lays an instrument before us and an organisation that is attached to the justice department—the SPS is an arm's-length body, but it is still attached to the department—requests that it be revoked, the revocation request should come from the cabinet secretary himself, with an explanation.
I propose to write to the cabinet secretary to ask for an explanation of the information that became available that necessitated the correspondence from the SPS, and what the protocol will be for the future. Is that agreed?
You have asked the main question, convener: what new information came to light that necessitated the change? However, my colleague Liam McArthur had intimated to the clerks that he wanted to come to the committee to talk about the rules' impact on Orkney, and I suspect that one of the things that came to light was that local members suddenly became aware of the implications of the rules for remote parts of the country. Perhaps there is a practical reason why cells need to be available at any given time, even if only for a short period, in parts of the country that are sometimes snowbound or weather bound.
With all due respect to Liam McArthur, if the situation was obvious to him, it should have been obvious to the Scottish Prison Service. We will make the appropriate inquiry.
We have raised points on the specifics of the situation, but I have a procedural issue that I have raised previously. A practice has started to creep in whereby, when we request information from the cabinet secretary, we receive responses from the various agencies. That is poor practice. I would have raised the same matter with the previous Minister for Justice if it had arisen. If we ask the cabinet secretary for a response, it should come directly from him, although I appreciate that he might get his civil servants to prepare it for him. Poor practice has crept in, and it is important that we make that point at the same time as we make our points about the rules.
I agree. We will proceed on that basis. In the meantime, we simply have to note that a revocation order will be made in due course.
Meeting continued in private until 10:15.