We move to item 4, which is consideration of subordinate legislation. Two motions will be moved and debated separately. We have with us Iain Gray, the Deputy Minister for Justice. I ask him to speak to and move motion S1M-1561, on the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No 2) Regulations 2001.
I will say a few words of explanation.
Thank you. Do any members want to speak on the regulation?
Are people suspected of being involved in terrorist activities the only ones who would be in custody without charge and would require ABWOR, or could there be parallel cases involving others involved in criminal law procedures?
The regulations refer only to detentions under the Terrorism Act 2000, because the provisions are so specific and unusual. The detention requires an extension to take place within 48 hours of the arrest taking place. During those 48 hours, the person involved will be in detention. That is why there is no opportunity for a proper financial assessment to be done. The danger would be that if proper legal representation were not available, someone who was suspected of terrorist activity might escape the criminal justice system. It is prudent to ensure that legal assistance is available.
I am on the side of prudence, minister, but it seems to me that the terrorism legislation has been in place for a long time and that there has been no difficulty with it in the past. I wonder why the Executive feels it necessary to introduce this new proposal now. If there is a reason under the European convention on human rights, I should point out what Michael Matheson reminded me of last night: that the ECHR has had some influence on UK law since 1952 without being incorporated. Perhaps the minister could expand on that.
I do not know whether I can expand on the final point. It is true that the situation that we are dealing with today—the extension to detention that must be made within 48 hours—was introduced by the Terrorism Act 2000. The situation that is being dealt with is new and different.
The question is, that motion S1M-1561 be agreed to.
Motion agreed to.
That the Justice 1 Committee recommends that the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No 2) Regulations 2001 be approved.
The second motion before us is S1M-1560, on the Legal Aid (Scotland) Act 1986 Amendment Regulations 2001.
The main purpose of this instrument is to add proceedings before the proscribed organisations appeal commission under the Terrorism Act 2000 to schedule 2 to the Legal Aid (Scotland) Act 1986, which sets out the civil proceedings for which civil legal aid is available. The 2000 act re-enacts and extends the proscription regime that exists under the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emergency Provisions) Act 1996. To ensure that the provision is fully compliant with the ECHR, the 2000 act introduces a new route of appeal for a person affected by an organisation's proscription. The person first applies to the Home Secretary for de-proscription. If the Home Secretary refuses that application, the applicant can appeal to the POAC.
The regulations are somewhat different. I have no argument with the minister's technical amendments, but I have strong feelings about civil legal aid. There are many reasons why civil legal aid should be extended, but the last one that I can think of is one that is linked to terrorist involvement. I do not understand why terrorist organisations should be given any additional privileges with respect to civil legal aid. I am aware that the legal aid process is under review and that the committee is examining the issues. Perhaps this issue could be considered later as part of that examination. I am not persuaded that the regulations represent a good extension of our civil legal aid requirements, irrespective of the fact that the right of appeal may not be used much, if at all.
Mr Gallie makes the important point that this committee is conducting an inquiry into legal aid. That might be a better forum for an examination of the extent of availability of legal aid than today's discussion.
I assume that we are talking about an individual acting on his own behalf. What are the provisions for an organisation to appeal against its proscription? Would the proposal cover a person appealing on behalf of an organisation rather than on a personal ground?
It would cover both those situations, but the organisation could not appeal against its proscription; an individual would have to.
With regret, I have to say that I am not persuaded by the minister's arguments. I can think of many just cases in which civil legal aid should be made available, but cases of the sort that we are discussing fall well outside the priorities that I would list. On that basis, I cannot accept your comments.
I am surprised that Phil Gallie did not pick up on the fact that the second technical amendment is presumably caused by the insertion of another 57 articles in one of the European treaties, most of which I presume he thinks are burdensome on us.
May I answer that? I took the minister's word that the amendment was merely a technicality. I did not want to go through each article in turn.
I do not share Phil Gallie's view on the more substantive issue. If the Home Secretary has proscribed an organisation, it is fundamental that individuals who are affected should be able to appeal, on the basis that even secretaries of state have been known to get it wrong on occasion. Proscribing an organisation is a draconian step and is open to appeal. The question is whether that kind of appeal should be any less liable to assistance in the courts than any other kind of appeal.
Does the measure affect organisations that are already proscribed or are we talking only about new organisations?
Organisations that are already proscribed would be covered and it would be possible for an individual to appeal on that basis. I stress to Mr Gallie that we are talking about an individual right of appeal and that there is no question of civil legal aid being made available to the organisation that has been proscribed. As the convener implied, legal aid would be available only to the individual.
I want to make it clear that I am not against the right to appeal, but I am against the right for an individual to get state aid for an appeal in such cases. As I have said, there are higher priorities. However, despite the minister's comments about the various groups, I can assure him that any such person would have the backing of the proscribed group. Many of those groups are very well funded and could afford to fund the appeal on behalf of the individual. If we follow this line, we will have got our priorities totally wrong.
Presumably a person appealing under that provision would be someone who was resident in Scotland. I assume that the decision on whether to grant legal aid would be subject to the usual checks on their financial status.
That is absolutely correct. In answer to Mr Gallie's final point, I should say that if there were an alternative source of financing for the appeal, it would be open to the Scottish Legal Aid Board to refuse civil legal aid.
The question is, that motion S1M-1560 be agreed to. Are we agreed?
No.
There will be a division.
For
The result of the division is: For 6, Against 1, Abstentions 0.
Motion agreed to.
That the Justice 1 Committee recommends that the draft Legal Aid (Scotland) Act 1986 Amendment Regulations 2001 be approved.
We are required to report to the Parliament on the affirmative instruments. Usually the reports on such instruments are fairly short and follow a formula. I propose that we circulate the draft report on the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No 2) Regulations 2001 by e-mail and send it out subject to comments by members. I would propose the same procedure for the draft Legal Aid (Scotland) Act 1986 Amendment Regulations 2001, but perhaps Phil Gallie would like more time to consider that draft report and discuss it in committee.
I would be happy for us to follow the arrangements for the report on the first instrument, providing that my views are reflected. If there were any disagreement after the e-mail had been circulated, it could come back to the committee for discussion.
I am told that we have to report to Parliament by 12 February, which would take us up to our next meeting. We will circulate a draft by e-mail taking account of the views that have been expressed in committee. If that draft is accepted, it will form our report; if it is not, we will consider how best to proceed.