Freedom of Information
I thank Alan Miller for joining us. [Interruption.] We can deduce that the press is less interested in freedom of information than we thought it would be.
This part of the meeting is the committee's attempt to find time to deal with freedom of information while the consultation process is still going on. Given the committee's work load, it has been difficult to give the issue extensive time, but we agreed to make some inquiries. After your visit, Professor Miller, and once we have decided what line we will take, we will make a brief submission by letter to the consultation process. You will be aware of the line of questioning that we pursued when we took evidence from the Scottish Executive team and from Mr David Goldberg, with whom, I am sure, you are well acquainted.
Perhaps you could make a short opening statement about the Executive paper, highlighting the good and bad points.
Professor Alan Miller (Scottish Human Rights Centre):
I know that it is customary to say that it is a pleasure to be invited to speak to any meeting, but I can genuinely say that this is a pleasure. I was a bit player in the consultative steering group process and was a strong advocate of a powerful committee system, so I am glad to provide any assistance I can.
I do not want to revisit the topics that I know you have considered. There has been a broad welcome for the Scottish Executive's proposals on freedom of information. That is justifiable and I do not want to waste time going over ground that you have covered. I want to provide something new to your consideration and give a perspective on what the relationship might be between a freedom of information regime and the European convention on human rights, given that that convention provides the framework in which law in Scotland is made and applied.
There are three areas on which I wish to advise the committee. The first is the potential interface between freedom of information proposals and certain rights in the ECHR. Secondly, I want to relate the convention to some points that have concerned the committee, such as exemptions, ministerial veto, public authorities and interests, and the distinction between Holyrood and Westminster. Thirdly, I will examine monitoring.
It would be wrong to think that the convention has little to say on the potential interface between a freedom of information regime and the convention, although at first glance that may seem to be the case. I refer the committee to two rights in the convention that will impact significantly on any freedom of information regime. Article 8 is the right to respect for privacy of individual and family life, home and correspondence.
The article is interesting because, first, it is unique in placing on the state a positive obligation; the state is obliged to protect privacy. Secondly, recent case law from Strasbourg has shown that this right is the most dynamic as it is being used successfully in environmental law and in the protection of the environmental rights of individuals.
Therefore, when public authorities come to consider freedom of information, they will have to take into account their obligations under the European convention. For example, if a member of the public wants information about the risk of radiation from Dounreay, which is a reserved matter, but still an issue, or about the risk of radiation from mobile phone transmitters around schools or neighbourhoods, which is a devolved matter, because it is the responsibility of the local authority, my view is that, under article 8, that member of the public is entitled to be given that information. Some cases from Strasbourg would support that view.
Another example of entitlement to information would be that of a victim who seeks an explanation of why a particular prosecution has not taken place, or of why a particular anti-social behaviour order has not been imposed by a local authority. There is a potential, through the convention, for information to be obtained.
Article 6 refers to the right to a fair and public hearing or trial. The accused in a criminal case is entitled to information from the prosecution that would be material to the defence. In other types of proceedings, a constituent may want to challenge a public authority in court and may need access to medical information or records. In the McGinlay case, McGinlay wanted to find out what his risk had been of being exposed to radiation as a result of his service in the British Army. His right to obtain that information was recognised by the Strasbourg court.
Equally, before a pension tribunal or a social security tribunal, access to medical information would be obtainable through the convention.
The other important contribution that the convention will make to freedom of information is the test for whether something should be disclosed. That test will be one of proportionality. Proportionality may be defined as being whether there is a reasonable relationship between a justified aim of not disclosing information and the means employed by the state to achieve that aim.
Using the test, it would be asked whether there had been an alternative, or whether a compromise could have been reached by the public authority in providing some information, as opposed to none. Strasbourg has defined proportionality by saying that the state can withhold information only if doing so is necessary in a democratic society and if there is a pressing social need for it to be withheld. In the absence of that, no matter what any freedom of information act may say, the state could be found wanting under the convention and could be required to hand over the information.
I know that some concerns have been expressed to or within the committee about a number of the aspects of the proposals. The first of those concerns is about class-based exemptions. It would not really matter whether something was class based or content based, because where a right under the European convention is at issue—I have given some examples of that—the test of proportionality, not whether the case was class based or content based, will be decisive. For a court to determine whether the state has got a decision right in terms of proportionality, it will have to consider the facts, circumstances and merits of each case.
The second concern was about the ministerial veto. The same argument applies. The ministerial veto must also be subject to the test of proportionality and the facts of the case and the justification given for the ministerial veto will be subject to challenge. For example, it will be asked whether there was not some alternative information that could have been made available.
What is the public interest? The European convention has not given a definition of that, other than the test of proportionality. In my view, that is the test that the courts will come to use when rights under the convention are being argued.
What is a public authority? When rights under the convention are being argued to obtain information, there is no doubt that the Scottish Parliament will be a public body; whether it seeks to opt in or out would be irrelevant. A range of other bodies—including privatised utilities and quangos—would also be public authorities from the point of view of the human rights act.
A distinction must be made between Holyrood and Westminster. There will be two different acts and two different regimes, and there will be distinctions between the two pieces of legislation. If information is disproportionately withheld by a public authority, in line with the UK freedom of information act the citizen will be able ask the court to consider that that is incompatible with the convention and, if need be, an appeal can be made to Strasbourg.
In Scotland, the situation will be different. If the Scottish freedom of information act is used by a public authority to prevent the disclosure of information and the applicant can successfully use convention rights to convince the court that the state was wrong in not disclosing information, the court will be able to disapply what the public authority in Scotland has done, and can give a remedy, there and then, to the member of the public.
Finally, on monitoring, compatibility with the ECHR is becoming an increasingly relevant issue. Stage 1 would be to determine whether the draft bill is compatible. My suspicion is that it would be. Stage 2, however, is what really matters—the application of the freedom of information bill to examine how it is applied in real cases. That is where compatibility with the ECHR begins to be tested.
At the third stage, there must be some system of monitoring how the freedom of information regime is implemented. There have been suggestions that that should come within the remit of this committee, although I suspect that that would not be welcomed—and I understand why. A debate took place in the Parliament last week on the merits of a human rights commission. It strikes me that a human rights commission could be expected to play a role in monitoring the way in which a freedom of information regime was being used.
Thank you, Alan. Yes, we were a bit alarmed last Thursday morning when some back-bench MSPs seemed to think that this committee could take on the role of a human rights commission as well as the rest of its work. That idea betrays a lack of understanding of what is required.
Was that suggested on Thursday?
Yes, that suggestion was made on Thursday morning and it was greeted with shock by most members of the committee.
I would like to begin by clarifying some of what you said right at the beginning of your speech, about the articles of the ECHR that impinge directly on freedom of information. You talked about article 8, the right to privacy. I made a joke on Thursday morning about it now almost being necessary for us to walk around with copies of the ECHR in our pockets. Although I think that that should be made compulsory, I have omitted to bring mine today.
I do not have in my head the wording of article 8, but from what you said, the right to privacy seems to be construed as a right to disclosure. When you began to speak, I wondered whether that was a point at which freedom of information and the ECHR were going to clash. Notwithstanding what is understood as freedom of information, the ECHR could stop that if somebody else claimed that it was breaching their privacy. You seem to be saying that article 8 implies a right to disclosure as well. Is that what you are saying?
Yes. Article 8 confers a particularly dynamic right under the convention. It has been open to modern interpretation: it provides for the individual and the family to enjoy their life, home and possessions, and any interference with the enjoyment of those could lead to a breach of that right of privacy.
In the disclosure of information, that could mean a variety of things. It could mean the right to get information about whether the family or house is subject to environmental contamination and whether the state has failed in its obligations to protect them. It could mean the right to have access to information that a children's panel is using to decide a child's situation. Similarly, if a victim is subject to an assault or some interference in the enjoyment of his or her family life and home and the state does not provide a remedy, there is an entitlement to get at least an explanation from the state of why no remedy has been provided.
A number of committee members would be interested if you could elaborate on the issue of information from the Crown Office, because at the moment that is one of the exemptions. Is it your understanding that that exemption would be challengeable under the European convention on human rights? Do you think that the current lack of disclosure on why cases are not proceeded with is challengeable?
The Lord Advocate is a minister and a member of the Scottish Executive. As such, he must act in a manner that is compatible with the convention. Under article 8, an individual who is the victim of some crime or interference with their rights and privacy is entitled to a remedy. If the state fails to provide that, the victim is entitled to an explanation. The Lord Advocate could be judicially reviewed on, for example, the decision not to prosecute in a particular case.
Although the Lord Advocate could be judicially reviewed, he might himself use arguments from the convention to explain why disclosure could not be made. He could, for example, refer to the presumption of innocence or the need to respect the privacy of others, such as witnesses or potential accused.
There is a new framework within which challenges can be made that the Crown Office has never had to face before. One suspects that the Crown Office is, therefore, thinking about providing at least some additional information to what has historically been given. However, at the end of the day the Crown might be able to use other, perfectly proper, arguments in court for why it did not have to disclose information.
Are you aware of jurisdictions in which more information is given?
Experience elsewhere would lead us to expect that the Crown might, voluntarily, become more forthcoming, as it would not want to be judicially reviewed time and time again.
So the answer is yes—there probably are freer systems.
I am not as up to speed on this as I would like to be and I have a suspicion that other members of the committee may feel the same. This is a very tricky and technical area. If I ask silly questions, please bear with me.
One would think that an attempt would be made to make any freedom of information act compatible with the ECHR. Are you suggesting that the ECHR would force these provisions to be made anyway? Are you saying that we might as well codify freedom of information because the ECHR has made it inevitable?
You are moving in the right direction. The state can be required to act compatibly with the convention where there is a convention right at stake. That is why I have identified the right to privacy as an important potential way of obtaining information. The same applies to the right to a fair hearing or a fair trial. When information can be obtained via those convention rights, a freedom of information act may not be relevant, necessary or the only way. However, there may be other bits of information that fall outwith convention rights, to obtain which one would require the buttress of a freedom of information regime.
But a change in culture towards freedom of information is being to some extent forced on us by the ECHR, whether or not we have an act.
That is correct.
I have read that we will have ministerial exemption certificates. In the past, we had public interest immunity certificates—the things that Heseltine and Rifkind may or may not have signed. My only experience of those was when I once went to the English Court of Appeal during the arms to Iran affair. Is that the same sort of thing, with the same standard and tests, but reformulated?
The European convention on human rights may act as a driving force towards a culture of freedom of information. The convention does not favour generalised immunities, privileges and exclusions—it deals with the facts and circumstances of each case and whether the test of proportionality has been met. Many conventions—written or unwritten—will have to be revisited.
After the arms to Iraq scandal, the theory that ministers could sign something—a public interest immunity certificate—and put it on the table, without questions being asked, disappeared. After that, the courts began to consider what lay behind public interest immunity certificates. Will the ministerial exemption be similar to the development of the immunity certificate, with the courts looking at what lies behind them?
Yes. Public authorities, including the Executive, will be subject to the convention and therefore open to scrutiny and challenge. In the Osmond case, which was very well known—
It is so well known that even we have heard of it.
Previously, local authorities, social work services and the police had immunity from paying damages if, from negligence, they had failed to protect the rights of an individual. The Strasbourg court found that that did not stand up. If the police or the local authority have failed to protect the privacy rights of an individual—removed a child from care when they should not have done, or should have removed a child from a family and did not—the merits of the case can be opened up for scrutiny, the local authority can be held to account and damages can be awarded to the victim. That is part and parcel of increased accountability in public authorities, including the Executive.
I think that I know the difference between class-based and content-based exemptions. Are you saying that, in practical terms, class-based exemptions will disappear? That was always much more developed in England. You have said that it is no longer a relevant distinction—that we must consider individual cases and that classes no longer matter.
Class will not be a decisive factor. It can be triggered only when a convention right has been breached, such as the right to privacy or a fair hearing. If one can argue that people are entitled to the information, there will be a test of proportionality. The convention test is what will count, rather than whether an exemption is content based or class based.
Most of us understand your perspective and the interests that you represent, but I want to ask whether you feel confident about the new freedom of information bill.
I became more optimistic—more than I had been—when, on the day the consultation paper was issued, I was invited to a pre-publication, confidential briefing. That made me think that something was changing.
The proposals are positive and compare well with those south of the border. The Executive has taken on many important points, such as a higher threshold in the test and the information commissioner, so it can be proud of what it has done. We want to see that being implemented. South of the border, as the bill passed through Parliament, some good intentions began to wither on the vine.
Are you reasonably optimistic?
Yes.
There is already a healthy interest from south of the border because it looks as though the Scottish bill will be better than Westminster's. I have had some correspondence on those lines.
I sometimes feel that I am in a constitutional law class again—I have a headache coming on, like I used to get. I want to get my head round this.
I want to illustrate what you have been saying, and I allude to article 8 of the ECHR. If someone in Scotland wanted to inquire about environmental matters relating to the bombardment range at Cape Wrath or about low flying, and they were denied that information because those matters were defined as reserved under the proposed Scottish freedom of information legislation, they could invoke ECHR. The person could take the matter to a Scottish court and get a decision there and then.
No.
So the case would have to be taken to the UK courts? Would the person have to go to Strasbourg because those matters had been defined as reserved?
Yes.
Could one challenge the definition of those matters as reserved?
The case that you suggest concerns a reserved power and would be dealt with by Westminster legislation; the Ministry of Defence and its decision would have to be challenged. If the person were unsuccessful in a UK court such as the Court of Session, they would have to go to Strasbourg eventually.
If someone had concerns about radiation, which pertained to a devolved body such as a local authority, they could obtain a remedy in a Scottish court.
Could the person take such a matter to court, even if the authority from which the person was endeavouring to get information said that it could not supply that information because it pertained to a reserved matter? Could they challenge the authority by raising the matter as an environmental issue and therefore not a reserved one?
Yes, like the case of mobile phone transmitters. That is a good example, because planning and so on are local authorities' responsibility.
I raised that because I have had difficulties with written questions along those lines.
The impact of ECHR is also important in civil cases. Children's evidence may be taken in camera and the parents—or usually just one parent—does not know, and never finds out, what the child said. Could the parent get more information by invoking ECHR? I think that an attempt has been made to challenge the current arrangements.
There was a Scottish case involving someone called McMichael. The children's panel was found to be in breach of the convention because it was taking into account information that had not been made available to the parent. The children's panel procedure had to be changed and parents now have access to all information that the panel uses in making its decision.
I want to return to my point that whether particular information falls under the proposed freedom of information legislation in Scotland rests not with whether the matter is devolved or reserved, but with who holds the information. Do you agree with that? When information on a devolved matter is concerned, should not there be a reciprocal arrangement between UK and Scottish legislation such that the Scottish freedom of information legislation would apply?
I can see arguments on both sides. Such situations may be an inevitable outcome of a devolved constitutional arrangement, under which sovereignty remains at Westminster and there is a demarcation between reserved and devolved matters.
The attraction of the proposed system is that there is a single regime, of which each public authority is aware. Clearly, Westminster and Whitehall would not wish information to come out the back door from Scotland. On the other hand, it might appear illogical that people cannot get information about a matter that affects Scotland and that is implemented by a Scottish body. That will be one of a number of anomalies which we will live with under a devolutionary constitutional arrangement.
You said that, through a ruling in Strasbourg, the police could be found liable—or at least could be taken to court—with regard to damages. On a point that is of interest to me, could the Department of Trade and Industry be taken to court?
It will become a public authority in October.
The DTI could be taken to court?
Come October, any public authority is under obligation to act compatibly with the ECHR, and could be taken to court by any victim claiming a breach.
And for past acts?
No.
That has given me a free bit of advice.
Christine obviously had something specific in mind that she was not letting the rest of us in on. [Laughter.]
Information about devolved matters that is held by bodies that are not themselves devolved will not be able to be got at. Would such circumstances provide the opportunity for deliberate evasion, with information simply being shifted to take it out of the regime that would apply in Scotland and into a less rigorous regime? Is that a potential danger?
From the state's point of view, there would be a greater degree of protection under the UK rather than the Scottish regime, because of the difference in threshold and the powers of the commissioner. At the same time, where a convention right is at stake, the standard will be the same whether the public authority is Scottish or UK. There will be a test of proportionality, so there will be no escape if the Human Rights Act 1998 is the means of challenge. However, there would be a greater degree of protection under a freedom of information act at a UK level than there would be at a Scottish level. There may be those who would want to shift information as you suggest.
I am thinking of sneaky little statutory instruments that redefine whole chunks of information into a stricter category. If the information is devolved, is it subject to the ECHR?
Whether the information is devolved, reserved or transferred from devolved to reserved—in other words, kept south of the border—as long as the person can trigger a privacy right, a fair hearing right, or any other convention right, the test will remain that of proportionality.
The point about the incorporation of the ECHR is that it is infinitely easier now to trigger the right in Scotland because there is no need to wait for years and go to Strasbourg. That is why there were not many cases before and now there are suddenly hundreds. If the information is about devolved issues but is being held under the reserved regime, will the incorporated ECHR be triggered in a Scottish court—I am thinking about between now and October—or will the longer-term situation obtain?
It is post-October. When there is a level playing field north and south of the border and all public authorities, reserved or devolved—
That would not touch the Westminster Parliament. What about Westminster departments?
It will.
So Westminster departments will be affected, but not acts of that Parliament?
Yes.
Once 3 October has gone by, it will make no difference.
That is right.
Thank you. I wanted to be clear about that.
They will not be able to hide it down the road.
No, they will not. Perhaps I am being paranoid, but I think that that was a reasonable point to raise. In countries that have freedom of information regimes, ways of avoiding freedom of information can become quite sophisticated. We must ensure that there will be no hiding places after 3 October, regardless of the fact that the regimes might appear different at first.
This may be looking into a crystal ball, but it is fair to say that the number of cases that have arisen under the ECHR has taken one or two people by surprise, to put it mildly. [Laughter.] Not me, of course. I anticipated it all along.
Of course you did. You knew the facts. Donald Dewar did not anticipate it.
None of us anticipated the number of cases. Looking ahead, after 3 October it will no longer be the Crown Office alone that will be affected. The whole workings of everybody and their auntie will be open to review under freedom of information legislation.
Lots of work for lawyers.
Is it the case that the freedom of information regime has the potential for a phenomenal explosion in litigation, and people are starting to panic a bit?
That could happen. In Canada and Australia, which had similar systems and went through similar experiences, there was a great deal of activity in and around the courts for two or three years, and in Parliament and the local authorities, as the bodies got themselves up to speed. The situation became clearer and everyone settled down again, although things were not as settled as they had been before.
It is healthy that there should be a transitional process, with light being shone where it should have been shone before. That is how things will go in Scotland for the next two or three years.
Things tend to settle down, presumably, because Government departments get to know what they have to do and people learn to operate in the new world.
That is part of it. The courts' interpretation of various matters also becomes clearer. At the moment, though, there is much uncharted territory.
My understanding is that the biggest problem in Canada, which has had freedom of information legislation for 15 years, is changing the culture. I am concerned about whether sufficient groundwork has been done to ensure that the culture of public bodies can be changed. That would prevent the commissioner having to deal with constant challenges and make rulings that bodies should provide the information.
What work could be done to put some changes in place prior to the bill's coming into force?
Will the powers of the freedom of information commissioner be sufficient? What do you think about how the commissioner will be appointed? Will the post be sufficiently accountable to Parliament or to ministers? In the debate on the European convention of human rights last week, we considered to whom the commission would be answerable. I raised the issue of the Paris principles; should those principles apply equally to an information commissioner? How would that work in practice?
Earlier, you mentioned the possibility of the freedom of information commissioner being part of the human rights commission. Do you think that that should happen or would the establishment of a human rights commission make the legislation less effective?
I hope that you will not ask me to repeat all that.
I will start with the last question, since I have long since forgotten the first.
I think that there should be a separate and independent information commissioner because some areas of information will be beyond the reach of the convention.
There is an argument that the commissioner should be appointed by the Parliament, as the UN says that a human rights commission should be appointed. The Parliament—and not the state—should be accountable. As Michael Matheson said, the culture is critical.
For the past 12 months, I have been giving training and seminars on the ECHR until they are coming out of my ears. Depending on the institution people come from, they tend to filter the information they receive about human rights and freedom of information; they will either have a certain cultural resistance or they will be welcoming.
The critical factor will be how, in time, the information is disseminated. A lot will depend on the impetus that comes from the Scottish Executive. The consultation indicates that the intention exists, but the matter has to go right down to the public authorities, which is where much of the information that your constituents will want exists. There is a real job to be done in local authorities—it is not something that can be left to direction from the Scottish Executive.
At the end of the day, it will be about the extent to which the public is aware of its rights of access to information and the extent to which it exercises those rights and creates a climate of expectation that it will get what it wants or needs. Public authorities have pressure from both sides: from the Executive and from the person on the street. It will take time—you are right that that is the critical factor in all issues such as this.
I apologise for missing a bit of the evidence—I had to sort out my car, which broke down on the way here.
My point follows on from something Michael Matheson has raised twice and concerns the idea of a change in culture. I apologise if this has already been covered, Alan. I come quite new to this concept—it is not something in which I have taken a strong interest in the past, although I suspect that I will do in future. Any discussion on this issue has been about legal technicalities and ECHR—we can all follow it now because we have been so involved in it. It is our life at the moment.
Michael's point is entirely relevant. At some point we must begin to convey what this is really all about. For me, what it is really all about is, for example, that ordinary people should be able to ask why their health board offers one kind of in vitro fertilisation treatment and not another. They should get an answer—one that they can understand—within a couple of weeks.
It is important for us to understand all the technicalities because we are going to be legislating on this. Do you think that the people who will ultimately be handling the new legislation when it becomes an act should be asked to drive home a simpler message about the importance of this issue? I fear that it will get lost.
As a practising lawyer in Glasgow, day after day I am asked in the common room what all this will mean. In Glasgow, unless you have a one line answer, no one has the patience to listen to the end of your explanation. The issue is about an increase in the public accountability of public authorities. That is the bottom line in all of these technical debates. It is about improving the quality of public life in Scotland. We are beginning to see that improvement, although it is not widely understood that that is what is happening. In two or three years' time, when we look back at the key decisions that are being made, that will be the common thread through them all.
Are there any other questions?
A lot of work will fall on administrative staff in local authorities and health boards, for example. When we consider how it will all work, we have to consider the resource implications as well.
Thank you for coming to speak to us, Alan.
We will make a brief submission to the consultation process, on the basis of what we have heard. We will outline some of the issues that we have identified as being of concern, such as changing the culture of organisations. Things are at a very early stage because this is just the consultation on the document.
We do not know precisely when the bill will be introduced, although we expect it in the year beginning September. It will then be referred to us for stage 1. It is highly likely that you will be before us again then to go through the principles of the bill.
Before I let you go, I will ask a question relating to the European convention that has arisen from our consideration of the prisons issue—we will discuss our draft report on prisons in private next. An issue that was raised last week was the potential to invoke ECHR on such matters as slopping out by prisoners, and in particular by prisoners on remand. I am advised that the report on that will not be published until 23 March, so we have nothing more to go on than what journalists say. Do you have a view about the susceptibility of the practice of slopping out to challenge under ECHR?
I have long held the view that this area is susceptible to challenge. In 1997, I gave evidence to the United Nations Human Rights Committee in Geneva on the International Covenant on Civil and Political Rights. When I raised the matter of overcrowding and slopping out in Scottish prisons, it was the only time in that session that the interpreter stopped; there was consternation because there was no equivalent to "slopping out" in German, French or any other language.
A challenge to slopping out could undoubtedly be made under ECHR and it is possible that it would be successful. The early ECHR cases on prison conditions were brought in the '70s and '80s. There is no doubt that the convention is a living instrument and the threshold of what is acceptable in prisons changes as the years go by.
A significant factor that Strasbourg might now take into account in considering a case—no slopping out case has ever gone to Strasbourg—is the recommendation, made by the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment which visited British prisons between 1990 and 1994, that slopping out is inhumane and degrading treatment.
That recommendation is not binding on the European Court of Human Rights in Strasbourg, but the court would certainly pay attention to it. It is possible that if there were other factors, such as overcrowding, lack of exercise and association, the package might amount to degrading treatment. Whatever the judgment of the European Court of Human Rights, it would be extremely embarrassing internationally to be taken to Strasbourg on that issue.
Such a challenge would be made under article 3, the short title of which is "Prohibition of torture", but the full text of which is:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
I am not in favour of the practice of slopping out and understand that it could be challenged. The problem is that although we look at our system and see the deficits, every country has a bit of the bad. I visited Saughton prison recently with some German lawyers, who were fascinated by the fact that we keep our sex offenders apart from other prisoners. They put them in with the rest and allow them to get beaten up. It is as crude as that. What will Europe do: take the worst of everybody—
No. The Strasbourg court does not consider the system as a whole; it considers the facts and circumstances of each case that comes before it. If it is a bad case, and an indefensible point, it will find that. It will not say, "Well, it's swings and roundabouts. There are other good things, so we will not bother about this bad thing." It will deal with the hard case that comes before it, rather than the general policy.
So Scotland will not get credit for the 110-day rule? It will not get a balance in credit for the fact that people can be on remand for only a limited time?
The relevant point is that the UK state would argue—if it was taken to Strasbourg over the issue of remand prisoners in Scotland slopping out—that remand prisoners are in prison for only a very short time in Scotland. The effect of slopping out may not necessarily debase them, as they might do it for only 20 to 30 days, or three months at most. The Strasbourg court would pay attention to that argument, although the defence may not be successful.
Thank you very much, Alan. As I said, in one guise or another, we will probably hear from you quite often over the years.
Thanks very much.
Gordon Jackson is indicating that a brief adjournment might be advisable as we move into private session. All those who are not internal to the committee are required to leave. Some members of the public have been present, and I extend a welcome to them although they must now leave. We will take five minutes, which will allow the team to switch off and pack up.
Meeting continued in private until 17:00.