Official Report 134KB pdf
Vulnerable Witnesses (Scotland) Bill: Stage 1
I welcome everybody to the fifth meeting this session of the Subordinate Legislation Committee. The first agenda item is delegated powers scrutiny of the Vulnerable Witnesses (Scotland) Bill at stage 1. As someone new to the committee, I found the Scottish Executive's policy memorandum particularly useful, as it gave an outline of the various delegated powers involved.
We note that the courts have powers to draw up procedural rules but, as we know, having such a power and exercising it can be two different things. It would be useful to suggest that, as a matter of good practice if nothing else, those rules should be drawn up. It is essential that that is done, and I think that we should draw attention to that. In other words, we assume that the courts will draw up such rules, but we should note our view that that is good practice, and we would hope to see the rules once they are drawn up.
That is a good point.
Part 1 of the bill deals with criminal proceedings. I invite the committee's comments on proposed new section 271H(1)(f). New section 271H(1)(a) to (e) defines the special measures that may be taken. Section 271H(1)(f) confers powers on the Scottish ministers to make orders about other special measures, by way of subordinate legislation subject to the parliamentary procedure of affirmative resolution.
It is right that there should be special measures in such a sensitive area as the protection of vulnerable witnesses. I welcome the proposal that such measures should be considered by the full Parliament. The Executive has left provision for additional procedures to be drawn up in the future. Flexibility is allowed for such changes to be made as technology changes or as circumstances dictate.
The Executive has stated that any additional special measures may have financial implications, so it considers the affirmative procedure to be appropriate.
As long as the financial implications are not used as a reason to fail to do something. In an area as sensitive as the protection of vulnerable witnesses, it is not reasonable to cite cost as a reason not to use special measures. I hope that, if that reason were used, it would be in order that the appropriate committee might agree that funds be voted for special measures, rather than that they might not be taken because it was too dear to do so. That point might come up when we examine the issues concerning district courts.
Perhaps I am being naive, but I understood that there would be financial implications and that that is why the affirmative procedure should be used. However, Christine May makes a good point that we could put to the relevant lead committee.
We will now consider section 271N(1), which deals with the application of sections 271 to 271M to proceedings in the district court. Section 271N(1) confers power on the Scottish ministers to extend, by order made by statutory instrument subject to affirmative resolution, the special measures provisions.
I sit on the Justice 2 Committee, which is considering the bill. I raised the point in that committee about why district courts are not covered by the primary legislation. From my experience of sitting in the district court, I know that people who are well known in the local community are charged. There is just as much need to protect vulnerable witnesses in the district court as there is in the High Court or the sheriff court. I agree that we should ask the lead committee to reconsider the matter and that the Executive should also reconsider its position.
I will clarify what the two issues are in this section. One is concerned about when the ministers decide to exercise their powers and the other is about the extent of the powers. Are there any further points?
We should ask why the ministers do not propose to act in the same time scale. There might be good, substantive reasons, but if we have not picked them up from the policy memorandum then we should establish what the explanation is. The superficial analysis might be that there are expenditure and works implications for local authorities to bring district court premises up to the necessary standard to allow for separate rooms and video links. However, that is not a good reason for delaying the implementation of the necessary reforms. That might be a reason for allocating funds to ensure that the premises are in a satisfactory condition. There might be other reasons that are not obvious to us and we should try to clarify those in the time scale.
We are talking specifically about addressing those issues to the Executive. Do members agree that, when we receive the Executive's answers—which might lead to more questions—we will refer the matter to the lead committee?
Let us discuss the location of the court. It is less easy to understand why the special measures that can be authorised should vary according to the location of the court where a case is tried.
In the case of sentencing, for example, the Executive wishes to standardise sentences as far as possible. There is a wish that similar methods of punishment be used throughout the country. In the case of the location of courts, we are talking about creating differences because of geography. There might be good reason for that, but it is not explained by the Executive. It might be to reduce travel distances, but the committee should be told why.
I agree with all that has been said about district courts and the lack of clarity about why they are not covered by the primary legislation. However, I am uneasy about the power of ministers to apply subordinate legislation to the district courts. If the proposals are important in the High Court and the sheriff court, they are equally important in the district court. We are discussing important legislation and I am uncomfortable with the idea that the power to introduce or not to introduce legislation for the district courts should be left entirely in the hands of ministers.
That makes explicit all our previous comments. Are we all agreed?
Part 2 of the bill deals with civil proceedings. Section 13(1)(e) confers power on the Scottish Ministers to add to the special measures, by order made by way of statutory instrument and subject to affirmative resolution. The power is similar to that dealt with in section 271H(1)(f), about which Christine May made the point about financial implications and with which we agreed. Do we agree that this power is in the same vein?
Yes.
I welcome Gordon Jackson to the meeting. I missed him when he came through the door.
I have lost track of our new arrangements. What did we decide?
We had the legal briefing between half-past 9 and half-past 10.
I am still an hour behind. I am really sorry. I have been in Edinburgh since half-past 9.
Glasgow is in a different time zone.
I forgot that we changed the time of the meeting after years of meeting at half-past 10 and quarter-past 11.
We accept your apologies, Gordon and we are sorry to have missed you.
Why does the Executive propose that the bill comes into force in different places at different times? The bill should come into force regardless of the geographical location of the courts. We should make that point to the Executive.
I wonder—with some hesitation—whether we are moving away from the committee's job on such matters. We have always taken a strict view that we would deal with the technical drafting, not the political arguments, which the Justice 1 Committee and the Justice 2 Committee can take up. I know that we can take guidance from the clerk on this point, but I am frightened that we will get too far into the politics of the commencement of the bill. There is nothing wrong with the bill's coming into force at different times in different places. Christine May's point is that the committee exists to protect people, but I am not sure whether we are doing the justice committees' job, rather than ours. It would be perfectly legitimate for Christine May to make the point in the chamber that she objects to the bill's coming into force at different times in different places, but I am not sure whether the Subordinate Legislation Committee should make that point.
I am reliably informed that our role includes the consideration of the use of delegated powers.
Fine.
The legal brief tells us that we are competent to raise the issue. However, as I am fairly new to the committee, I am willing to hear more from Gordon Jackson.
I am simply sounding a slight note of hesitation. In the past, committee members of all parties were careful to ensure that the committee did not deal with political arguments, but with legal ones. We are in danger of discussing the politics of the bill rather than the legal issues relating to its subordinate legislation provisions.
The policy issue is just the context for our question, which to ask the Executive why it intends to proceed by statutory instrument, rather than including the matter in the primary legislation.
That point is well entitled. I was just firing out a little thought.
I am concerned that, because the bill is the first one to be dealt with in this session of the Parliament, the Executive might have rushed it and not given it enough time. In particular, as I have said in the Justice 2 Committee, I am concerned about why the bill will not apply to district courts. It is legitimate to ask about that.
Before Gordon Jackson arrived, we were discussing the big issue that Murray Tosh has just raised, which is why certain measures are in the primary legislation and why other measures are to be introduced through subordinate legislation. For instance, district courts are being dealt with differently from other courts, such as the High Court. Obviously, that matter is within our remit.
All I am saying is that it is difficult to define where the line is crossed. I have no problem with Christine May's point, which was—I am not quoting her—that the bill should be implemented everywhere at the same time, but I felt that that took us into the politics of the bill rather than the reasons for the subordinate legislation provisions. I agree that it is not entirely clear where that line is.
We have no intention of discussing the politics of the bill. We have a genuine concern about why certain measures are in the primary legislation and other measures will be introduced through statutory instruments.
I totally accept that that question is legitimate.
I would be happy if we could find technical words in which to raise the point. I take Gordon Jackson's point: we do not want to run the risk of not getting an answer and of being slapped down because the matter is none of our business. We should proceed properly.
Unlike Gordon Jackson, most committee members are fairly new to the legal scene.
He is the expert.
It is not very expert stuff.
Most of us are trying to find our feet and to discover what background information would be useful. If Gordon Jackson can help us in any way, that would be useful. We might return to the issue next week.
Excuse me, convener. I have another meeting to attend.
Okay. We are sorry to see you go.
Next
Executive Responses