Justice Committee,

Meeting date: Tuesday, May 5, 2009

Official Report 245KB pdf

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Subordinate Legislation

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Scotland Act 1998 (Modification of Schedule 4) Order 2009 (Draft)

Agenda item 3 is evidence on the Scotland Act 1998 (Modification of Schedule 4) Order 2009, which is an affirmative instrument. Prior to the debate on the motion at agenda item 4, members may ask questions of the cabinet secretary and his officials on a matter that has been the subject of some controversy in the past. I draw members' attention to the cover note on the instrument. The Subordinate Legislation Committee did not draw any matters to the attention of this committee. SPICe has prepared a short background briefing paper.

I welcome Kenny MacAskill, the Cabinet Secretary for Justice; Brian Peddie, the head of the European Union and international law branch; and Fraser Gough, a solicitor in the Scottish Government legal directorate.

The draft order stems from the judgment by the House of Lords in the Somerville case in October 2007. That judgment identified a significant legal anomaly in relation to time bar for human rights claims, which has resulted in substantial cost to the taxpayer by way of compensation payments and legal costs. I was pleased that there was strong support across the Parliament for our efforts to remove that anomaly and for the solution that was eventually agreed with the United Kingdom Government, which was announced in Parliament by the First Minister on 19 March. The draft order is the first stage in delivering that solution.

As the Somerville judgment related to the wording of the Scotland Act 1998, before the problem that is highlighted by the case can be addressed, an order under section 30 of the act is required. That would give the Scottish Parliament competence to legislate to establish a one-year time bar for bringing human rights claims under the Scotland Act 1998, similar to the time bar that exists for claims under the Human Rights Act 1998. The draft order would achieve that. It has also been laid before the Westminster Parliament for approval, as required by the Scotland Act 1998.

Assuming that the order is approved by both Parliaments, it will then be made by the Privy Council. A bill to amend the Scotland Act 1998 in relation to time bar will then be introduced in the Scottish Parliament. Our aim is to secure the passing of that bill before the summer recess, to enable the time bar to come into effect as soon as possible thereafter—all as announced by the First Minister last month.

I hope that that brief explanation was helpful. I am happy to answer any questions.

Thank you, Mr MacAskill. I remind members that we have received a letter dated 4 May from the Law Society of Scotland, which is pertinent to our considerations.

Good morning, cabinet secretary. As the convener stated, we have received a letter from Mr Clancy of the Law Society of Scotland. He states:

"It is unfortunate that the Scottish Government did not take the opportunity to consult widely on this proposal as it will have the effect of limiting the capacity of many people, who may have had their human rights infringed by Scottish Ministers from taking appropriate action to vindicate their human rights."

Do you share the Law Society's concern?

I understand why the Law Society would welcome consultation; however, we had to act expeditiously. We could not move until there was agreement with the UK Government, although the matter was of great concern both here and south of the border. Once we had agreement, rather than compound the agony that is caused in many communities by people receiving money while they are serving sentences, we chose to move urgently. That is not the norm for us and it was not the norm for previous Administrations, but we reserve the right to protect the broader public interest. That is why we acted as we did.

The Law Society also states:

"It is a point of debate as to whether one year is the correct period for the time bar."

You obviously feel that a year is the correct period. Why?

That is the period that applies in the Human Rights Act 1998 and that is viewed as the norm in such matters, not simply in UK jurisdictions but elsewhere. We are satisfied with that. If others have other suggestions to make, we would be happy to consider them. Nevertheless, one year seems to be the appropriate period. The matter has been considered, consulted on and discussed, and we are happy that we now have that protection.

I am obliged.

There is always the fail-safe position that, on application and cause shown, the one-year period can be extended—is that not the case?

Absolutely, as it is with other aspects of claims in Scotland on cause shown. The time bar period was considered in great detail before the Human Rights Act 1998 was passed and was viewed as providing the appropriate balance.

I am sure that I join many in welcoming the instrument, which puts Scotland in the same position as England and Wales. It is a matter of huge regret that it has taken us so long to do that. We all recognise that we have much better things to do with £50 million or so. Can the cabinet secretary give an indication of how soon he thinks that the measure can be put into effect and the £50 million can be moved from a reserve into front-line funding? We recognise the importance of doing that in today's climate.

The member asks his question without wishing to indicate what is likely to happen under the next agenda item, of course.

Indeed.

I can indicate what the First Minister has already indicated clearly. There are procedures to be gone through, and we seek to do so as expeditiously as possible. Good will from elsewhere has allowed us to address issues at the appropriate juncture. We hope to have dealt with the matter by the summer recess, if all goes smoothly. What follows falls within the financial domain. We want to ensure that the money is used to protect and preserve public services for good citizens, instead of being paid out to prisoners.

I want to explore two issues relating to the effects of the committee agreeing to recommend that the Parliament approve the order. Proposed paragraph 4A(4) refers to

"such longer period as the court or tribunal considers equitable having regard to all the circumstances."

It strikes me that that is a lesser test than the phraseology of prescription limitation legislation more generally, which refers to exceptional circumstances. Has the Cabinet taken a view on the extent to which the provision will allow other sorts of cases to go through—which is relevant to the £50 million that has been mentioned—and on which cases may be affected by the change from the existing three-year provision to the one-year period for which the instrument provides?

The wording is lifted directly from the Human Rights Act 1998. As you and I know, different terminology and nomenclature are used in legislation north and south of the border. When setting the one-year limit, we considered the need to strike a balance. The wording that we chose does not refer to the ability to pursue claims outwith the triennium—the convener referred to claims outwith the period—but it is used in the Human Rights Act 1998. It is meant to be a fail-safe, where there is a manifest injustice that could not otherwise be recognised. We are open to suggestions. However, given that the wording appears in the Human Rights Act 1998, we believe that it is perfectly reasonable for us to incorporate it into the Scotland Act 1998.

Has any assessment been made of the extent to which this secondary option will be pursued and of the effect that that will have on the number of cases that come before the courts, both with regard to slopping-out arrangements and more broadly?

Not that we are aware of. The assumption is that those slopping-out cases that have sneaked under the wire will have to be dealt with. Thereafter it is a matter for the courts, to some extent. I cannot prejudge what they may decide on any argument that is made, but it is fair to say that, once the one-year time limit has been set, the circumstances in which a longer period is considered equitable will have to be exceptional.

Can you or your officials give an indication of the sort of cases that may be affected by the provision? The Law Society of Scotland refers to people losing their rights as a consequence of the instrument. A consultation might have given a flavour of which cases would be affected. However, you have explained the reasons for not conducting such an exercise in this instance.

Some of the same exceptions that apply to human rights cases subject to the triennium will apply to cases subject to the one-year limit. I refer to cases in which, through fault on the part of their lawyers or because they have slipped and broken their leg, people bring proceedings one week after the end of the limitation. There is a balance that needs to be struck. It is difficult to set absolute parameters for the circumstances that would apply.

It is about manifest injustice. It is about circumstances beyond someone's control, because of ill health, incapacity or whatever. It is about providing that justice can be served by allowing matters to happen outside the one-year time limit, which is the approach that applies in Scotland in relation to the triennium or quinquennium. It is about ensuring that when something has gone fundamentally agley, and people have not just sat on their hands and failed to take action, the scales of justice can come down in favour of allowing a late application.

It is difficult to envisage circumstances in which the kind of individual that we are talking about would not be very much on the ball about their claim.

Under the heading, "Policy Objectives", the executive note on the order says:

"Under section 7(5) of the Human Rights Act, proceedings brought under section 7(1)(a) must generally be brought within one year from the date of the alleged breach, unless a stricter time limit applies to the proceedings in question."

What circumstances do you envisage in that regard? Could a stricter time limit apply in the cases that we are talking about?

The wording is a straight lift from the Human Rights Act 1998. Off the top of my head, I am not aware of proceedings that involve a time limit of less than a year, but there might be such instances. For reasons partly of urgency and partly of consistency, we simply took the wording from the Human Rights Act 1998, even though the act is perhaps written in more English than Scottish terms. There is no hidden agenda to target certain cases; it was simply about getting Scotland back in kilter with the rest of the UK, because UK bodies are protected whereas bodies in Scotland are not. That is the situation that we seek to remedy.

Was it deemed to be easier and better to go for equity throughout the UK and a one-year limit than to go for a limit of six months or nine months in Scotland?

It was not simply about equity throughout the UK. The UK Human Rights Act was discussed and debated and much discussion and debate about the issue had taken place at European level. The one-year period emerged from those discussions. The Human Rights Act was passed contemporaneously with the Scotland Act, and the reason why we got into difficulties is that it was assumed that matters had been incorporated; there was no problem until legal eagles discovered the lack of protection for Scottish bodies. We are not seeking to reinvent the wheel; we are seeking to get Scotland into the position that we thought it was in until the Somerville judgment. We have simply sought to build in the protection of the Human Rights Act, which was the intention way back in the previous millennium, at the end of the 1990s, when the act was passed.

Agenda item 4 is formal consideration of the motion to approve the order. I invite Mr MacAskill to move motion S3M-3961.

Motion moved,

That the Justice Committee recommends that the draft Scotland Act 1998 (Modification of Schedule 4) Order 2009 be approved.—[Kenny MacAskill.]

If there are no comments from members, I take it that our consideration has concluded. The matter has been of considerable public concern, and considerable animosity has been directed towards the recipients of damages over the years, so the issue is fairly straightforward.

Motion agreed to.

Meeting suspended.

On resuming—

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Justice of the Peace Courts (Sheriffdom of South Strathclyde, Dumfries and Galloway) Order 2009 (SSI 2009/115)

I welcome Elaine Murray MSP and Cathy Jamieson MSP, who are attending for items 5 and 6. Item 6 is a motion for annulment, which has already been lodged. The purpose of item 5 is to take evidence on the order from the cabinet secretary. I draw members' attention to the order and the cover note. The Subordinate Legislation Committee did not draw any matter to our attention. A letter from Elaine Murray has been circulated.

I welcome again Kenny MacAskill, the Cabinet Secretary for Justice; Gerard Bonnar, head of the summary justice reform branch in the criminal procedure division of the Scottish Government criminal justice directorate and Stephen Crilly, principal legal officer in the Scottish Government legal directorate.

I invite Kenny MacAskill to make a short statement and to introduce the officials who accompany him.

I am accompanied by Nadya Stewart from the Crown Office and Procurator Fiscal Service and by Eric McQueen from the Scottish Court Service.

The order is part of the unification of court administration that has already taken place in four of the six sheriffdoms in Scotland. I will begin by explaining some of the details of what the order does.

The order is made under the Criminal Proceedings etc (Reform) (Scotland) Act 2007. It establishes justice of the peace courts in the sheriffdom at Ayr, Coatbridge, Cumbernauld, Dumfries, Hamilton, Kirkcudbright, Lanark, Motherwell and Stranraer.

The order also makes consequential and transitional provision. It includes repeals of provisions of the District Courts (Scotland) Act 1975. At the same time as it enters into force, a commencement order will bring into force for the sheriffdom the repeal of the provisions of the Criminal Procedure (Scotland) Act 1995 under which local authorities can determine where their district courts will sit. That and various other functions will be repealed for the relevant local authorities, so that they will no longer be required or entitled to operate district courts within the sheriffdom of south Strathclyde, Dumfries and Galloway.

The order makes provision for a staff transfer scheme to be made for any staff transferring to the employment of the Scottish Court Service. That scheme will be signed off before the unification date of 29 June 2009. The order also provides for the transfer of certain records in relation to penalties that are not specifically covered by the transitional provisions in the 2007 act.

The order makes transitional provisions to assist in the smooth transition of on-going cases from the district court sittings at Airdrie, Ayr, Cumnock, Dumfries, Hamilton, Kirkcudbright, Lanark and Stranraer to the new JP courts. The provisions will allow the district courts to fix dates in the new court before it is fully established and also for witnesses and accused to be cited in advance. The provisions for transfer of records and transitional arrangements complement and supplement the provisions of section 66 of the 2007 act.

A further order amending this order will be made by early June to deal with any property transfer issues arising from the unification. That will be by way of amendment because of the nature of the powers in the act.

While establishing JP courts in the sheriffdom, the order also disestablishes the district courts sitting there. In some areas, a JP court is established in a different location. A decision on whether to establish a JP court in a particular location was made in accordance with section 59 of the 2007 act, which requires at least one JP court for each sheriff court district except where ministers determine it unnecessary.

A consistent decision-making framework has been employed throughout the unification process in each sheriffdom. Decisions as to where JP courts are established are based on a range of factors including business levels, value for money and the standard of existing facilities. I have provided the committee with information on the business profiles of some of the courts in the area and I hope that that assists members in their consideration of the order before the committee today.

I hope that that brief summary of the order was helpful. I understand that members may have questions. I am happy to answer them in conjunction with the officials who accompany me today.

Do members have questions?

I am not quite sure whether it is appropriate for us to lodge our objections at this stage in proceedings, or whether you will take those under item 6.

We are at the questioning stage. If there are any questions that you wish to ask, I would be more than happy to accommodate those.

I do not want to ask any questions; I want to make the opposite case.

I would like to ask a number of questions.

Please proceed.

I will keep them brief. They relate, in particular, to the Cumnock and Girvan courts. Strong representations have been made to me by East Ayrshire Council and the JP committee in East Ayrshire about the closure of the Cumnock court. They assert that the facilities there, which are mentioned in your note, are no worse, if I can put it that way, than the facilities at the Ayr court, where it is proposed that all the business will be located. They feel strongly that the proposal does not take account of local access to justice. I invite the cabinet secretary to explain the basis on which the decision was taken. Was it taken on purely financial grounds? What account has been taken of the representations that have been made by East Ayrshire Council and the local JP committee?

It might be best if I get Eric McQueen from the Scottish Court Service to answer that. It is clear that the decision has not been made simply on financial grounds; the reason for it is to do with the standard of accommodation and facilities.

I would be happy to try to cover that. We have met council officials and JPs in the area concerned to go over the points that have been raised. Our position is that the court facilities at Cumnock are not of the standard that we would require to run criminal business in the future. The fact that the building has major shortcomings was reflected in our discussion with the JPs. Those shortcomings relate, in particular, to the custody arrangements, secure access, interview rooms and witness provision. There is an issue with the provision of safe access throughout the court complex at Cumnock.

We fully understand that there are issues with the Ayr justice of the peace court, which is why we are investing money in it to bring it up to the standard that is required. The decision was not just about money; it was based on consideration of where it would be best to target our investment, given the levels of business. Our view is that the size and environment of the present district court in Ayr give us the capacity to create a highly satisfactory JP court there in the future, which will be able to take the business at Ayr and the business at Cumnock.

I have a supplementary. What consideration has been given to the fact that people from the more outlying parts of East and South Ayrshire will need additional travel time? For example, for people from Muirkirk who will now have to travel to Ayr, the through buses are only once every two hours. If they were to change buses, they would do so in Cumnock, right across the road from the existing district court. To what extent has that been taken into account? In addition, people who would have gone to the Girvan court will now be required to travel to Ayr.

As regards the custody position, I understand that the number of custody cases at Cumnock and Girvan is extremely low. Given that we are talking about cases that involve situations in relation to which local communities have a genuine interest in seeing justice being done, rather than some of the more serious cases, surely it would be beneficial for the communities to retain the courts in their areas.

The proposed reform is partly driven by the need to ensure that local justice can be done and that better-quality cases can be dealt with by JPs. You are quite correct—the number of custody cases at the courts in question is extremely low. However, if the changes go through, one would hope that there would be an improvement in the level of cases that could be dealt with in Ayr, given the investment there, which would benefit JPs. I invite Eric McQueen to deal with some of the specific issues that you raised.

We have to take a wide look at the impact on different communities and on witnesses travelling. In relation to the closure of Cumnock district court, our view, on balance, is that, given the low volume of witnesses coming through the system, the travelling distance from Cumnock is not significant. We understand that there are places such as Muirkirk from which travel can be more problematical, given the limited availability of public transport. However, we looked at the figures for the period November 2008 to February 2009 and found that no witnesses from Muirkirk were cited to court. On average over a year, only a small number of people, if any, will therefore be affected by the more difficult travel from certain areas.

The point about travel largely applies to Girvan, too, because although it might be inconvenient for witnesses from outlying areas to travel to Ayr, the statistics showed that the number of such witnesses at Girvan was either nil or very small. The task is to try to balance overall business levels, the impact on witnesses and costs. It is our firm belief that our investment would be better targeted in one area that can serve a wider community and provide a better service to all court users who attend that JP court in future.

I have a further question. It has been brought to my attention that the local JPs in East Ayrshire made a submission to the consultation. They are concerned about Kilmarnock district court, which is in the same local authority area as the Cumnock court but in a different sheriffdom—I am sure that the question of the boundaries there will be considered at some stage. The Kilmarnock court appears to have an increasing workload, and the local JPs are concerned that different policies have been applied in the procurator fiscal's office in Kilmarnock and in Ayr that have led to a deliberate decision to send fewer cases to Cumnock recently in order to be able to make the case for its closure. Could the cabinet secretary comment on that?

I do not know whether Eric McQueen or Nadya Stewart wants to comment on that. It would be inappropriate for me to comment on Crown Office and Procurator Fiscal Service matters.

I think that it is a question for Ms Stewart.

The allocation of cases to Cumnock court or any other court is based on the location of the crime and from where the report is received. There is no deliberate process of marking cases to a preferred location. The appropriate marking decision is based on the crime; the location of courts and their facilities are not taken into account.

I have a couple of questions on Annan district court. Elaine Murray's letter makes a point about the custody facilities in Annan that echoes my earlier representations on Rutherglen district court. It states that the courtroom is 20yd away from Annan police station, which has full detention facilities. What is wrong with an arrangement that makes use of those facilities?

I will ask Eric McQueen to comment on a variety of matters relating to custody. The issue is not simply cell facilities but how prisoners are moved and how defence witnesses are segregated from prosecution witnesses. It is not simply about having them in separate rooms; it is inappropriate for them to be in adjacent rooms or to have to use the same toilet facilities because there could be contamination of evidence or intimidation, which we must protect against—the police support that position. Understandably, we want a visible police presence in our communities, not to have officers babysitting people in a court or required to be available for that. That would be likely to occur if we had to ensure that officers were stationed in Annan district court because of custody requirements. I think that the people of Annan would prefer the police to be out patrolling, protecting and guarding, not sitting drinking a cup of tea because a case may or may not be sent 20yd across the road.

I echo Mr MacAskill's comments on that issue. I would add only that the Scottish Prison Service has responsibility for the safe transfer and conduct of prisoners, which is now outsourced to Reliance as part of its contract. The intention of that was to relieve police of the burden of managing custody on a day-to-day basis so that they could put officers on the street. The Association of Chief Police Officers in Scotland and the police would strongly oppose any move back from that position, for the reasons that Mr MacAskill outlined.

I have two further questions, one of which relates to the level of business in Dumfries district court. It is suggested that that cannot be sustained without special courts being arranged. If that is correct, there appears to be a challenge there. The other question relates to the issue of distance, because we must consider the far points as well as the medium points in district court areas. The note on the order makes the point that the distance from Langholm to Dumfries is around 40 miles, but it also makes the more important point that Dumfries is not the most convenient place for Langholm residents to get to. In all these cases, account must also be taken of the ability of witnesses, the public and accused people to get to the court. How far has that been done? You are minimising the issues, but in rural areas they are quite important because of the transport situation.

The general issues have had to be considered elsewhere. We have agreed that there were transport difficulties in getting to Inverness from Kingussie and Nairn, and getting from Inverurie to Aberdeen was a matter of concern. In my constituency, there have been transport difficulties to Loanhead and Penicuik, which is where the court was before it was in Loanhead. Those difficulties are factored in, although we do not deny that some communities find themselves further away. As I say, these matters must be viewed in the round, along with a variety of factors to do with improving the service at the venue at which the proceedings are located and getting best value from the service.

There are other matters that must be dealt with, such as improving public transport and ensuring that court sittings take transport difficulties into consideration. However, such matters are addressed frequently in Scottish courts. I have appeared in sheriff courts in places such as Lochmaddy, for example, and know the difficulties that people face not only in getting to district courts, which may close depending on the outcome of today, but in getting to sheriff courts that are still sitting.

With respect, Mr MacAskill, I suggest that if you were to attend Lochmaddy sheriff court, you would be there the night before and would have no travelling distance to concern you.

In Dumfries, there is no issue with court capacity. It is our intention to run a further two or three sittings if that is required to deal with the volume of business. We are confident that the business levels now or in the future, even if they grow, could be accommodated comfortably in Dumfries without additional works being required there.

Travelling in from the outlying areas has been an issue for us in all the sheriffdoms but particularly in Nairn and Kingussie, where we have addressed the issues before. In the vicinity of Annan, although there are outlying areas, only very low numbers of people are being cited to court as witnesses. None at all was cited from Langholm during 2008, and only three people were cited from Lockerbie, which has better travel arrangements and provision although similar distances are involved.

We are looking at marginal numbers given the type of investment required. We are trying to ensure that we have a court system that is the best for Scotland's needs, taking account of rural areas.

The order that we are considering mentions the Airdrie sheriff court district and Cumbernauld as a location for a justice of the peace court. What does it mean for the Airdrie sheriff court district and for Cumbernauld?

Our intention for the Airdrie sheriff court district is, over time, to move the JP court at Coatbridge into Airdrie. Immediately on unification, it will stay within the Coatbridge building. However, once we have provided sufficient space in Airdrie, we will consider moving the JP court there. That suggestion has been well received by the council and by JPs in the area.

What about Cumbernauld?

There is a court established at Cumbernauld under the order. I do not think that the Scottish Court Service has any proposals to reconsider that in the near future.

No, the court will stay exactly where it is. Sorry.

You mentioned in one of your earlier answers that very few people would be inconvenienced by the change from Annan to Dumfries and the other change to Ayr. Will people benefit from such changes? Clearly, there are people who are currently inconvenienced by having to travel to Annan, Cumnock and Girvan. I just wonder what the other side of the coin might be if the courts are moved to Dumfries and Ayr.

The residents of Lockerbie will certainly benefit. As I have said, the travel arrangements for people travelling from Lockerbie will be far better than for those travelling from other parts of the country. It is a given that there will be swings and roundabouts. In some areas a small number of people will be disadvantaged, but in other parts of the community in which we propose to have courts, where bus services are more frequent and there is more regular travel into the area, the number of people who are disadvantaged will be small.

None of the changes that we are making can be entirely cost free; there will be a cost to some individuals in some communities. It is important to remember that 70 per cent of cases at Annan appear to relate to road traffic offences on the M74. Cases are arising not from traffic between Langholm, Annan, Lockerbie and Dumfries but from traffic that passes through Dumfries and Galloway. Some of the accused might be residents, but in the main they appear to come from outwith the jurisdiction. Indeed, at times more than 95 per cent of cases have related to incidents on the M74 and people who had no relationship with Annan but were simply passing through Dumfries and Galloway.

I was going to ask about that. The information that has been provided to the committee indicates that the vast majority of cases are to do with road traffic offences. From the list, it seems that people travel from London, Glasgow, Washington and other far-flung places outwith Dumfries and Galloway. I am sure that the cabinet secretary agrees that it is probably easier for such people to get to Dumfries than to Annan.

A check during a particular period showed that 94 per cent of cases were dealt with without a personal appearance being required. That ties into the point about people who were travelling from starting point A to destination B, both of which are outwith Dumfries and Galloway.

I understand that the average court roll in Annan district court is around 90 cases. Will it be possible for Dumfries district court to absorb an additional 180 cases per month without a substantial increase in regular court sittings?

The point was made that the vast majority of those cases relate to road traffic offences in which pleas are made by letter. The number of accused who are required to appear at court is small.

How small, on average?

In January and February there were 187 new cases at Annan, in which only 10 accused were required to be present, only one of whom was from the Annan area. We are talking about marginal numbers.

Are you confident that the additional cases can be absorbed by Dumfries district court without substantial—or indeed any—increases in court sittings?

As I said, we might have to increase sittings by two or three days, and we are considering the issue. The court has the capacity to do that and we are confident that the business will be managed within the court.

I thought that no additional diets were proposed for the Dumfries court.

We have considered the volume of business that comes through the courts and we have the capacity to run two or three further sittings if that proves to be required.

Do you mean two or three additional sittings per month?

Yes, if they are required.

What is the layout of Dumfries sheriff court? Are there two courtrooms or one?

There are two: one very small civil room and one large criminal room.

How many sheriffs are there?

I think that Dumfries has two sitting sheriffs.

Therefore, if a JP court moves in, a sheriff will have to move out. Will that add to the pressure?

As is the case in all our courts, the courts do not sit every day. A programme of business is marrying business in the JP court with business in the sheriff court.

Writing time and a variety of other matters are factored into sheriffs' diaries, as the convener knows—

We need not go there.

Sheriffs work hard, but they are not in court from 10 am until 4 pm every day.

I categorically assure members that accommodating two or three additional sittings a month in the sheriff court would not be an issue.

Does the High Court sit at Dumfries on circuit?

It did in the distant past, but it has not done so recently.

Members have no more questions, so that disposes of item 5.

Item 6 is formal consideration of the motion to annul the order. I invite Elaine Murray to move motion S3M-3927.

I thank the convener and the minister and his officials for agreeing to postpone this item in order that I could be here for it.

I will not try to argue that it would be appropriate to spend £800,000 on Annan district court or on replacing the court in Annan. I argue that it is unnecessary to spend anything like that amount in order to meet the required standards. Local solicitors, councillors and my fellow MSPs Jim Hume and Derek Brownlee—who have both opposed closure of the court—believe that the information on which the proposal to close it is based is inaccurate, and that the court building is a lot more flexible than has been suggested. We suspect that the closure is a cost-cutting exercise.

The building that is used is the old town hall. A modern extension is the main access point for members of the public coming in for council facilities, to pay their rent to local housing associations and so on. There are security staff in the part of the building where the court is and where some council meetings are held, because parts of the building are accessible to the public.

The court serves the whole of Annandale and Eskdale, which includes Langholm, Canonbie, Gretna and Ecclefechan—communities from which people do not generally go to Dumfries for services such as hospitals and so on, because Carlisle is a lot closer. In the past 10 years in which I have represented Dumfries, I have never had a complaint from residents in Lockerbie or Moffat about their not being able to access Annan court; it has never been an issue. I note that nobody from Langholm has been cited to the district court in the past year. Perhaps that is testament to the law-abiding nature of my constituents in Langholm. This is not just about accused persons: it is about the ability, when necessary, of members of the community, witnesses and relatives to see justice being done.

Annan is the third-largest town in Dumfries and Galloway. We do not have courts dotted around Dumfries and Galloway in every small community. Annan is a significant community; it is a royal burgh and I believe that the court has been there for many centuries, so it is part of the history of the town.

I turn to specific issues that are raised in the consultation document. First is the matter of having separate entrances. That is possible, because the court does not sit in the council building; it sits outwith the council building, so it is possible to separate the entrances. There was also the issue of witness rooms. There are three witness rooms at present: one for the police, one for the defence witnesses and one for the accused. It is not necessary for those people to mix or for their health and safety to be compromised.

There are cells at Annan police station, which is across the road—a stone's throw from the court. It is significantly nearer the court than Dumfries police station is to Dumfries court. I am not suggesting that the cells would be required in many instances. They would probably be rarely required, given the sorts of cases that might come to Annan court.

A question was raised about police officers: however, in Dumfries it is in fact Reliance that takes prisoners from the police station to the court. I can see no reason why Reliance would not be able to fulfil the same function in Annan, if necessary.

The question of witnesses and accused persons having to use the same toilets was also raised. The building is quite flexible and there are toilets in the old part and in the new part. With a bit of imagination, it would be possible to restructure use of the toilet facilities for such instances.

Dumfries and Galloway Council has indicated willingness to help to address some of the problems with the building. Some £20,000 has been identified for health and safety matters. I should say that the council has been committed to the building. It has recently spent £350,000 on improvements, including dry-rot works. The building is now in good condition.

The workload for the Dumfries court should also be considered. We have heard that the Dumfries court has only two rooms, one of which is small. I do not think that it is any bigger than the small room in Annan district court, so transfer of business from one small room in Annan to another small room in Dumfries will not improve the situation.

I argue that this is centralisation of the services of a rural area. At present, I think that there are only three courts in Dumfries and Galloway—certainly, there are only two in my constituency. I think there is another one in Stranraer, but it covers a large rural area. The centralisation of services in the town of Dumfries goes against the grain of how we would like to decentralise services in rural areas such as mine. It is not the central belt of Scotland where people can easily nip from one place to another. It is a dispersed rural area, and I argue that the current number of courts is appropriate for Dumfries and Galloway.

I cannot say as much on the Girvan and Cumnock courts, but I believe my colleague Cathy Jamieson has made a strong case for their retention.

I hope that the committee will give consideration to these specific issues in respect of such rural areas.

I move,

That the Justice Committee recommends that nothing further be done under the Justice of the Peace Courts (Sheriffdom of South Strathclyde, Dumfries and Galloway) Order 2009 (SSI 2009/115).

The point that Elaine Murray raised in relation to the centralisation—or apparent centralisation—of justice is very important. I refer to comments that have been made to me by the East Ayrshire justices, who recalled the early discussions following the McInnes committee report when it was proposed that lay justice would be dispensed with and that justice would be a totally professionalised service. I was involved then, as were other members who are sitting around the committee table today.

The decision to retain lay justice was very much based on ensuring that communities could see justice being done and that crimes and offences that had been committed in communities and which were particularly relevant locally could be dealt with there. With regard to the justices, the modernised system of lay justice would ensure that a wider range of people would be involved and that those who dispense justice would have knowledge of the area and understand the circumstances.

My concern in relation to Girvan and Cumnock courts is not simply about the buildings, although they are very important. It is also about the wider message that their closure would send to communities: that we are moving away from a system that is based on community involvement in the justice system to something that is literally more remote from such communities.

I have made a number of comments that are particular to Girvan and Cumnock. I do not intend to go over them again other than to say that my recollection of discussions on the summary justice reforms is that it was never the intention that we would end up with JP courts and sheriff courts sitting side by side in the same town or area. The intention was to try, where possible, to rationalise the court estate in a way that would ensure that we spread to local communities the opportunity for justice to be done. I will rest on that point.

I wish to add a little from my perspective on the matter. Obviously, I do not have the same knowledge as the local members do on these matters. I am subject to their comments and the comments of the cabinet secretary in response, but this centralisation process is not something with which I am particularly comfortable.

The important point that has been made is not so much to do with where the accused or witnesses come from; it is the fact that the crimes take place in the communities in question. I accept the point that was made on traffic offences; that is perhaps a different issue, although only to a degree in that communities get exercised by road traffic incidents as well.

An issue that has not been touched on is the ability of local newspapers to report on such matters. In some communities, local newspapers fulfil that facility, such as in Rutherglen, which I mentioned when I made the point previously.

I am not particularly persuaded by arguments about the condition of courts. Quite often, with regard to the closure of schools, hospitals and courts across the land, we see an architect's report that tells us how dreadful conditions are, when in fact the building has operated perfectly reasonably for quite a long time. It may well be that a number of things have to be done for the buildings to meet certain modern requirements but—as has been mentioned—with a bit of imagination that is not impossible in some of the buildings we are discussing.

Police time can be an issue, too. A reasonable case has been made for the proposed closures not to go ahead. I do not know the full local position, but I would be interested to hear the cabinet secretary's response to the specific points that the local constituency members have made.

I agree with much of what Robert Brown said. I am not convinced by the Government's case. I am grateful to Cathy Jamieson for reminding the committee—or me, at any rate—that the decision to retain lay justices was taken so that justice could be seen to be done in the communities in which offences were alleged to have been committed. I am also grateful to her for reminding me that JP and sheriff courts were not intended to sit side by side.

I am desperately unconvinced by the argument that has been made about the conditions at Annan court. The constituency member, my colleague Elaine Murray, made the point that it has three witness rooms. The cells at Annan police station are a stone's throw away—that is perhaps an unfortunate phrase, but you know what I mean. There are sufficient toilets and the building has, to the tune of £350,000, been refurbished recently and Dumfries and Galloway Council is offering £20,000 of investment, so I remain unconvinced about its closure. Perhaps the cabinet secretary will be able to convince me. I look forward to his attempt so to do.

I will not comment on the nature of the buildings in Annan, Cumnock, Girvan, Ayr or Dumfries, because the local members will know more about that than I do, but I have an important point to make about the level of inconvenience that it has been claimed people will suffer and how the closures will impact locally. It is clear that the number of people who will be inconvenienced by the proposed changes is exceptionally small. The fact that at least the same number of people, if not more, will benefit from the moves to Dumfries and Ayr must be taken into account.

It is important to take into account the number of cases at Annan court that are to do with road traffic accidents. I think that of the sample of 187 cases that was mentioned, only one involved an accused who was from Annan. That gives us an idea of the impact of moving the court away from Annan. The argument about the impact on the area is somewhat spurious.

I must also point out to members that the process has already taken place in other parts of the country with no ill-effects. I do not think that the south of Scotland is different in its rurality from some of the other parts of Scotland in which the changes in question have been implemented. Unfortunately, I am not convinced by the arguments of Elaine Murray and Cathy Jamieson that their areas are different from those other areas to such an extent that the changes that the cabinet secretary has suggested should not take place.

I call Cathy Jamieson—I am sorry; I meant Cathie Craigie. There is a plethora of Cathies around the table.

All the Cathies in the Labour Party answer to anything—we are used to being confused.

There is a point that I would like the cabinet secretary to address when he responds. Like all courts, the purpose of JP courts is to serve the public for the good of the communities that they serve, so I support my colleagues' argument that they should be located in the communities that they seek to serve. I invite the cabinet secretary to deal with that issue.

As there are no further contributions from members, I will make a final point. Given the points that have been raised, it seems that my vote will be decisive. Unfortunately, the order that we are considering today is in composite form. My use of the word "unfortunately" is deliberate: despite the able advocacy of Cathy Jamieson, the same arguments do not apply in each case. I can with ease dispose of a number of issues. For example, I am not persuaded about the difficulty in respect of the building at Annan. I believe that other practical problems can also be overcome. In the past, when similar situations have arisen, I have made it clear that two principles are involved and must be followed. The first consideration is whether the cost relates to case numbers. Under that heading, the Scottish Government's case for Annan is probably met.

The second consideration is access to justice. I accept that the case load is very low and that the profile of cases is exactly as Elaine Murray outlined in her correspondence and the cabinet secretary put in evidence today. That said, access to justice continues to be an issue. Unless the cabinet secretary persuades me otherwise, it is inappropriate for people to have a four-hour return trip to attend court. I am not concerned about court sittings happening in the same building. That is not necessarily a problem, particularly given the clear cost implications of separate premises. However, I am significantly concerned that people in the eastern part of the Annan court catchment area will have to take a fairly convoluted, time-consuming and possibly expensive trip either to appear as an accused person or give evidence.

I ask Mr MacAskill to wind up.

In addressing the points that have been raised, I turn first to accommodation. Clearly, a variety of factors are involved, including the safety of clerks, fiscals and others. St Andrews house does not deal with matters such as this on a whim or a fancy: the matter is for the experts in court programming who are employed in the Scottish Court Service. We have continued to deliver the accommodation programme that the previous Administration established and we have allowed it to continue without my involvement and without change being made.

I turn to centralisation of services. We have based our work on the "Smarter Justice, Safer Communities: Summary Justice Reform—Next Steps" document, which the previous Administration published in 2005. Paragraph 2.16 says:

"Some towns currently have both a sheriff and district court – neither of which is fully employed. In those situations we would take the opportunity to realise sensible efficiencies through rationalisation and upgrade of the estate".

We are simply building on the position of the past Administration.

I oppose the motion to recommend annulment of the Justice of the Peace Courts (Sheriffdom of South Strathclyde, Dumfries and Galloway) Order 2009. The JP courts order is the latest step in a summary justice reform programme that has attracted—and which continues to attract—wide support. The result of the reform is that fewer people in our communities are having to attend court. Where attendance is necessary, victims and witnesses are not required to appear as frequently.

Members have asked about the principles and rationales behind the establishment of JP courts. I welcome the chance to explain the process and the basis for our decision on unification in South Strathclyde, Dumfries and Galloway. The intention behind court unification is to place the administration of our courts in the best possible hands—the professional court administrators of the Scottish Court Service. Seeking to ensure local justice in a modern context, the SCS sought to gain the benefits of unification, including service integration, one provider rather than 32 authorities, one IT system, consistent delivery, greater simplicity and accountability, better estate use, and better facilities that are suitable for victims, witnesses and all court users. The SCS used in driving its decision a number of guiding factors including business levels, value for money, the standard of existing facilities, and the business mix. Of course, it also considered local access and the proximity of courts in Annan, Cumnock, Girvan and East Kilbride.

While seeking to ensure best practice, we also had to take account of the very low volume of business and the lack of adequate and secure facilities in an evolving summary justice system. Where similar issues have arisen, we have applied the decision-making framework consistently across all sheriffdoms. As Mr Maxwell pointed out, we have dealt with the matter in the Highlands and Islands, plans for which the committee considered and approved at each stage of unification.

I value the expertise of local justices of the peace and the contribution that they make. Consideration of the volume and profile of business in the district courts in the area that would be affected by this order shows that local access to justice would not be significantly compromised. Issues relating to local knowledge can be effectively addressed by the training that is being introduced under the reform of summary justice and by the sharing of knowledge and experience among JPs. JPs will, in fact, be better equipped and will be able to deal with a new and more serious mix of business in courts with secure and adequate facilities.

The new courts structure would bring specific benefits to communities in south Strathclyde and in Dumfries and Galloway. For example, it would free officers to patrol the streets. The Association of Chief Police Officers in Scotland acknowledged that point in its response to the SCS proposals, and said that there would be immediate benefits to the police, especially in areas where the police had to provide a service to outlying district courts. The proposed closure of some courts within the sheriffdom would be a distinct benefit.

The Government has had to make difficult decisions in approving the recommendation of the Scottish Court Service. We are satisfied that the recommendation takes careful consideration of all the interests and that it represents the best arrangement for the provision of summary criminal courts in the sheriffdom of south Strathclyde, Dumfries and Galloway.

This is not the first time we have had to consider such a recommendation. We took difficult decisions to close courts in Glasgow and Strathkelvin, Grampian, the Highlands and Islands, and Lothian and Borders, where similar issues arose. For instance, the district courts in Kingussie and Midlothian were closed during previous rounds of unification, and there was a subsequent transfer of business to the JP courts in Inverness and Edinburgh.

Members have rightly asked questions about the effects on local people, and have pointed out that some people will have to travel further. That is not untypical in rural areas; indeed, in some areas, people have to travel further than would be required with the order. We were asked how the residents of Langholm might be affected: they might have to travel further. However, as Mr Maxwell pointed out, in 2008 no civilian witnesses from Langholm were required at Annan district court. It could also be argued that many other services in Dumfries and Galloway require people to go to Dumfries, anyway.

In some places, residents would find it easier to get to court. Several people from Maybole who, over the past few months, have had to attend at Girvan, would have found it easier to get to Ayr. Court locations were for many years the responsibility of local authorities. Over the years, the estate evolved and the locations changed. We are committed to local justice and to improving facilities so that victims, witnesses and other court users can feel more secure and so that the court can deal appropriately with new and more serious business.

In agreeing with the recommendations, I am seeking to strike the right balance. This order is part of a much wider programme that delivers benefits to all, but which requires a degree of change in order to deliver those benefits. The programme has the widest support, so I urge the committee to reject the motion to annul.

I invite Elaine Murray to wind up.

The contributions from Cathy Jamieson, me and other members of the committee have probably rehearsed all the arguments. I will not repeat them, other than to say that I do not believe that it is in the best interests of access to justice that the court service for an area as large as the Dumfries area be centralised in one town.

The question is, that motion S3M-3927 be agreed to. Are we agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)

Against

Constance, Angela (Livingston) (SNP)
Don, Nigel (North East Scotland) (SNP)
Maxwell, Stuart (West of Scotland) (SNP)

The result of the division is: For 5, Against 3, Abstentions 0.

Motion agreed to.

That the Justice Committee recommends that nothing further be done under the Justice of the Peace Courts (Sheriffdom of South Strathclyde, Dumfries and Galloway) Order 2009 (SSI 2009/115).

I thank Mr MacAskill and his officials for their attendance.

Meeting continued in private until 12:49.