Justice Committee, 10 Feb 2009

Meeting date: Tuesday, February 10, 2009

Official Report 179KB pdf

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Coroners and Justice Bill

On resuming—

I welcome back the Cabinet Secretary for Justice, who is joined from the Scottish Government by Gerard Bonnar, who is the head of the summary justice reform branch in the criminal procedure division; Ben Plouviez, who is the head of the information services and information systems division; and Andrew McConnell, who is a policy adviser in the enterprise and industry division.

I invite Mr MacAskill to make an opening statement on the Coroners and Justice Bill, which is UK Parliament legislation.

I am seeking to promote the legislative consent motion on the UK Coroners and Justice Bill, which covers three sets of provisions that extend to devolved matters.

The first set is on criminal memoirs. The bill introduces a scheme to recover profits that criminals make from publicising the stories of their crimes. The scheme will apply when convicted criminals write or contribute to accounts of their crimes. It covers all forms of publication, such as books, films and the internet. It has a public interest test and follows existing guidelines and limits on asset recovery in other cases.

It is hoped that the change in the law will act as a powerful deterrent to criminals who seek to profit from their crimes through publicising their stories. Scotland has a separate jurisdiction on the matter, but the Scottish Government considers it important to take a common approach throughout the UK. For any scheme to be effective, comprehensive UK legislation will be more workable than introducing complex legislation in both Parliaments on different timescales. Having UK-wide provisions will help to avoid cross-border issues such as the exploitation of differences between Scottish laws and laws in other parts of the UK by those who seek to profit from publishing material about their crimes.

The second set of provisions relates to the European Union services directive, whose aim is to open up the internal market in services in the same way as it is open for the movement of people, capital and goods. It ensures that service providers can operate anywhere in the EU, free from burdensome or discriminatory restrictions. The directive must be implemented before 28 December 2009.

The provisions that the LCM promotes will allow the Scottish Government to have all the powers that it requires to implement the directive through secondary legislation under the European Communities Act 1972, by disapplying the limitation on penalties that can be included in secondary legislation that is made under that act. The relevant clause in the Coroners and Justice Bill will not implement anything in itself. However, if the Parliament agrees to the legislative consent motion, Scottish ministers will be able to implement the directive by secondary means through the normal legislative process.

The third set of provisions covered by the LCM relates to the creation of a power for ministers to create information-sharing gateways. The aim is to enable ministers in the UK Administrations to permit bodies to share personal information where there is a need and a willingness to do so.

The proposal to create such a power came from the data-sharing review that Richard Thomas and Mark Walport carried out during 2008. They identified that some safe and beneficial information sharing is prevented, either by specific legal obstacles or by the lack of necessary legal powers for public bodies. The power referred to in the LCM will allow ministers to overcome barriers when it might not be practical to gain individual consent to sharing, but such sharing is necessary and proportionate to achieve a policy outcome. The draft motion before the committee will allow the bill to change the functions of Scottish ministers so that they will have the power to issue orders when the information relates to a Scottish matter and the proposed sharing of that information is between Scottish bodies.

It has been argued in the press that the bill as it stands offers insufficient safeguards on the use of the power; that question will, no doubt, be debated at Westminster. The issue for us to consider today, however, is about ensuring that the powers that Scottish ministers have with regard to devolved matters are no less than those of the other UK Administrations. I have asked officials to look at how we can put in place effective procedures for consultation and notification when Scottish ministers have occasion to consider the use of the power in practice.

It is in the interests of good governance and an effective justice system that the provisions of the Coroners and Justice Bill that relate to criminal memoirs, the EU services directive and the power to create information-sharing gateways, in so far as those matters fall within the legislative competence of the Scottish Parliament or alter the executive competence of the Scottish ministers, should be considered by the UK Parliament.

You spoke about information-sharing gateways. For clarification and for the record, what kind of information sharing would be, as you put it, "necessary and proportionate"? Are you and the Government satisfied that there are sufficient safeguards with regard to the devolved matters that you mentioned?

Such matters are, to some extent, always under review, which is why there will be a debate. There are two things to consider. First, if we did not consent to the legislation, the powers would be put in place anyway, but UK ministers rather than Scottish ministers would exercise them and deal with the issues. Therefore, the question is not whether we agree with the proposals, but whether we wish there to be some accountability and some recourse to ministers in the Scottish Government, as opposed to leaving it all at Westminster.

Secondly, it is clear that, as a society and as members of different political parties, the views that we hold on such issues ebb and flow, which is why a debate will be held at Westminster. The Government's view is that the issue is not the technology, but how it is used. There have been certain instances in which technology could have been used in a beneficial way—for example, by allowing the sharing of data in a way that would have supported Government departments in targeting poverty and addressing problems in areas where there are high levels of need. There are cases in which such data sharing could have been constrained.

This issue is not just about the restrictions and limitations on sharing data in relation to targeting individuals for criminal justice reasons; some of it relates to using information to ensure that certain health, social or economic matters, for example, can be dealt with. Views will ebb and flow and will doubtless be debated.

I do not know whether the officials wish to add anything.

I will add a couple of useful examples. The cabinet secretary referred to the fact that the targeting of information at the poorest families in the digital switchover process was prevented by the legal barriers between Government departments and the contractor. It was not possible to direct the information specifically at individuals in need.

The difficulties that were experienced in attempting to use a convenient existing and beneficial identifier so that we could proceed with the national entitlement card in Scotland were considerable, and primary legislation was necessary to overcome them. In such areas, the powers will simplify a power that we already have under primary legislation.

The Government does not support identity cards—we see them as a gross waste of money. However, given the constraints on us—because UK matters are involved—if there is to be an entitlement card, we should maximise the benefit. It can be of benefit to share information between departments and bodies.

I am grateful to the cabinet secretary and Mr Plouviez for giving the committee examples of the kind of information sharing that the cabinet secretary referred to as "necessary and proportionate". That clarifies the issue.

Our note on the LCM suggests that the facility to hold fatal accident inquiries in Scotland for Scottish servicemen might be dealt with by a subsequent LCM relating to the bill. Has agreement been reached on that?

I had a meeting with the Lord Advocate yesterday, and the Lord Advocate and I are to have a videoconference discussion with Westminster ministers tomorrow. Regrettably, it was not possible to address the matter at this juncture, but we hope to return shortly with a measure that will, we hope, reduce, if not eradicate, the pain that service families have had to endure. I hope that tomorrow we will resolve the matter finally between the Government here and that in London.

That is helpful.

I welcome most other parts of the LCM, but I have several questions on the significant issue of data sharing. Paragraph 12 of the LCM states:

"Where information is to be shared between Scottish and UK bodies, or"—

fairly obviously—

"where the sharing would relate to reserved functions, the power to create such a gateway would reside with the appropriate UK minister."

That suggests that, under the bill, it would be open to UK ministers to require the Scottish ministers or Scottish public authorities to set up almost any information-sharing arrangements that might be required to implement the ID card scheme, which the cabinet secretary mentioned. Not to beat about the bush, that is a wide power. I understand the point about the need for information sharing on issues such as the digital switchover, but should not major issues such as ID cards or the problems of information sharing between devolved functions that arose in the previous session of Parliament be examined through the primary legislative process in the Parliament?

Do you accept that the bill will give UK ministers the power to direct Scottish departments and public services to share information for the purposes of ID card arrangements? Do you also accept that powers will be given to the Scottish ministers, for devolved functions only, in relation to sharing pretty much any information that they might want to be shared, but without that being examined through the primary legislative process, which in the past the Parliament might have thought appropriate?

I understand the concern, although I must say that the power is to allow, not to require. Therefore, there is the hopeful safeguard that no Scottish Government would seek to use or abuse the power—we certainly give that undertaking. The power is not forced on us; it is a power that we could seek to exercise in relation to matters that come to us from whatever level at Westminster.

There is a constitutional issue about where such issues should ultimately be decided. Clearly, members of the committee and the Government have different views about where powers should lie and on other matters that are part of the devolution settlement. I return to the point that not proceeding with the LCM would not stop the process; it would simply mean that certain matters would not be dealt with by the Scottish ministers, for which they would not be held accountable.

You are correct to flag up possible consequences. The powers that the UK could use would allow, but not require, the Scottish Government to proceed in a certain manner. The Government has a great deal of concern about a variety of issues relating to ID cards. On those matters, we will seek to act appropriately and proportionately. We think that the Government should be accountable to the Parliament—

I am sorry to interrupt, but I want to be totally clear. The power to create a gateway, where the information is to be shared between Scottish and UK bodies, will lie with UK ministers. There will be no role at all for the Scottish ministers in that regard, or for the Scottish Information Commissioner, if I understand the matter correctly.

We have the Government's national conversation, and other political parties are involved in discussions about where power should lie. However, we have no role in that—

Has the Scottish Government made any representations on these matters to the UK Government?

I am not aware that we have made specific representations, but debates are on-going at Westminster. The Scottish Government has set out its position quite clearly on where we stand on ID cards, which is the primary matter that is exercising people's minds about data sharing. As my colleague Ben Plouviez explained, our view is that the use of technology in certain areas is not only benign but beneficial, such as in relation to tackling poverty and deprivation. We simply seek to strike a balance to protect the public's interests.

Clearly, some of the issues are constitutional. We are aware that we are frequently accused of always seeking to have constitutional battles, but we have such battles when they are appropriate. We have made representations to the UK Government. The memorandum seeks to ensure that powers reside with Scottish ministers, who are accountable to Parliament, rather than with UK ministers, who are not.

You will forgive me for saying so, but you have confirmed that you have not made representations on the matter. The bill is capable of amendment, so the UK Government could respond to legitimate issues that were raised without our getting into a constitutional fangle. If I understand you correctly, you and your colleagues and officials have made no representations about involving the Scottish Information Commissioner or providing a role for Scottish ministers in the sharing of information between UK and Scottish bodies, or anything of that sort. Is that correct?

There have been discussions on the powers in the bill. Where the purpose of information sharing relates to a devolved matter, the UK minister must obtain the consent of Scottish ministers. An information-sharing gateway between a UK body and a Scottish body can be created only by a UK minister but, if it relates to a devolved function, the consent of Scottish ministers must be obtained. The provisions maintain the primacy of Scottish ministers within the devolved functions.

Let me explore that, as I am not sure that I fully followed that point, which is not stated in our papers. Are you saying that, for information sharing between UK bodies and Scottish bodies, the power will lie with the UK ministers but the consent of Scottish ministers must be obtained? That is not what our papers say.

If the information sharing relates to a devolved function, that is correct. If the information sharing is for the purpose of a reserved function, Scottish ministers will need to be consulted but their consent will not be required.

For the sake of argument, let us take the cabinet secretary's example of ID cards. The consent of Scottish ministers would not be required but their permission would be sought. Is that where we are at?

Yes, although it would depend on what function of ID cards was being considered.

Do Scottish ministers regard that position as satisfactory?

No. Scottish ministers seek an independent Scotland within the European Union with a normal nation state's powers, including on matters such as how the state deals with its citizens and how it deals with data.

We have made it clear that we view ID cards as not simply an intrusion on civil liberties but a gargantuan waste of public money at a time of great pressure on public services. I can give a clear assurance that the Scottish Government has made its position on ID cards clear. Indeed, my colleague Fergus Ewing has made that clear to the Parliament. If the committee so wishes, I am more than happy to tell the UK Government that the committee's view accords with our position, which is that such matters should be dealt with by the Scottish Government.

However, some matters are reserved under the devolution settlement—which we seek to challenge through the national conversation and, ultimately, through a referendum—so we cannot buck against them. Therefore, where UK provisions provide practical benefits in tackling social and economic inequalities, we will seek to ensure that they are available to our people.

Regardless of all that, have you made no representations to UK ministers on the issue to date?

We have made representations on ID cards—

But not on the issue that we are discussing.

No. Such matters are part of our on-going dialogue with the UK Government, which straddles departments. The issues in the bill are dealt with not just by the Ministry of Justice but by other departments. As I said, if the committee so wishes, I am more than happy to add information sharing to the list of the various matters that I discuss in meetings with UK ministers, which include firearms, drink driving and a whole array of issues that we believe would be better dealt with by the people and Government of Scotland.

I will ask one final question, if I may, convener—I am sorry that I am taking some time over this.

It is an important issue.

My question relates to devolved functions in which there is no UK element. We are taking powers through UK legislation to enable data sharing between devolved bodies. Is that not manifestly something the detail of which we should examine ourselves? Should we not consult appropriate bodies on it, identify the issues that might arise and deal with the matter in the Scottish Parliament? Is it not the sort of thing that the Parliament was set up to deal with in the first place?

Yes. Things will come through and will be discussed and debated in due course. We are taking an enabling power that will allow us to address matters such as those that we discussed in connection with the digital switchover. There are clear cases in which it seems appropriate that we should be capable of dealing with such matters if they are benign. More controversial cases are linked to other discussions about the limits of freedom of information. Those matters are subject to continuing debate. The Government has not written a blank cheque; the matters will be dealt with cause by cause and case by case.

Will you give us an indication of the way in which you will determine what is benign and what is not, and what sort of things might be done under the power and what might not? That question is clearly important for civil liberties, as the power concerns personal information and privacy in a series of ways. As you rightly say, it might be okay to implement some data-sharing arrangements, but others would raise serious issues around consent and individual rights.

Security is reserved to Westminster and outwith the control of the Government and the committee.

We are talking about devolved issues.

On devolved issues, we are not looking for an impediment to sharing information but, if and when such situations arise, the matter that you raise should be addressed. The power is about having the ability to share data if it is beneficial to do so, as opposed to being restricted in how we share it. The debate on those matters continues. Where should the limits of freedom of information and data sharing lie? We are in an information age and must ensure that we have appropriate powers. However, equally, we must ensure that we have appropriate checks and balances, as you are correct to point out. That is why other matters will doubtless come back to the committee in some form in due course.

Do you not accept that the power is one on which the Parliament should form a view through the full legislative process, rather than one that should be delegated to ministers through the rather truncated process for Scottish statutory instruments?

We already have broad barriers; we also have the ability to introduce measures in subordinate legislation at any time. It would be inappropriate to require primary legislation on the issue. We are having a political debate as opposed to a legislative one. You are right to say that there will doubtless be proposals that will cause controversy, which will have to be discussed and debated. However, that does not require any legislative debate. We have the legislative framework and the Parliament must decide where the parameters should lie. It is a political discussion, not a legislative one.

The points that Mr Brown raised highlight the tensions that could exist, particularly under legislation on identity cards. Are you satisfied that, were the Parliament to agree to the legislative consent motion, there would be no danger of the power applying in Scotland by stealth, for want of a better word? I accept that that is not your intention.

There are matters that are beyond the Scottish Government's control because of the devolution settlement. On a variety of matters, the Westminster Government can legislate in ways that we do not support and with which we do not agree—indeed, it has done so. I cannot give you the assurance that you seek because I cannot stop the Westminster Government legislating on ID cards, terrorism or even road traffic matters. It could introduce measures with which we disagree. For example, the Parliament supports a reduction in the drink-driving limit, but it is constrained.

However, we see merit in taking the power through an LCM because it will be taken anyway and it is much better that the Scottish ministers, who are accountable in devolved areas, should exercise it in those areas. Mr Brown was right to flag up issues, but the power will allow—not require—the sharing of data.

I cannot give a categorical assurance that actions with which we disagree could not emanate from Westminster, but I assure you that the Scottish Government will not seek to abuse the powers that it holds. The broader issue that Mr Brown correctly raised is a matter not for legislation as such but for a political debate about where the barriers should lie, although I accept that legislation may ultimately be required.

I was anxious to get reassurance from you that the UK bill would not affect devolved powers, and you have given me that reassurance.

I have a point of clarification that relates to provisions on criminal memoirs. Would the scheme that the UK bill proposes cover speaking tours by convicted criminals? The issue is not mentioned specifically in the LCM.

I have done some speaking tours and, in the main, they are usually predicated on something that someone has published. Would the scheme that the bill proposes catch someone who was invited to give a lecture at Our Dynamic Earth? The short answer is that we would need to check that and to discuss the matter with colleagues south of the border. Perhaps it is a moot point.

There is no doubt that whether any public or private body should pay someone in such circumstances is open to debate, but I am happy to undertake to investigate the matter. It is a moot point whether income from a speaking tour would be covered by the provision on publication. Publication on the internet is covered. You raise an interesting and valid point. I think that it would be viewed as unacceptable to allow a convicted offender to keep the profits of a speaking tour. We will seek to address the issue by working with our English colleagues, because it would be reprehensible if it were possible to prevent former criminals from being paid for speaking tours in one part of the UK but not in another. We will investigate that.

It might be helpful to point out that, in that context, the definition of the word "exploitation" is particularly apposite.

The definition of "exploitation" is probably wide enough to cover such activity.

In my view, it would be, but that is a matter for your officials.

I have a further question about criminal memoirs. Is the cabinet secretary content that the extent of the prohibition is thorough enough? One can envisage a situation in which a convicted offender might work in partnership, or collaborate heavily, on the compilation of a book of which, on the face of it, they were not the author. Convicted offenders could write about the offences of other notorious offenders with whom they might have shared a cell, which would obviously cause great hurt and offence to victims.

The line has to be drawn at some point. It is clear that neither we nor the Government south of the border wants to restrict freedom of expression to too great an extent, even if we find what is expressed to be reprehensible. There are restrictions as regards sexual exploitation and parameters have been set on a variety of matters to do with public decency. The LCM is more about exploitation than what is written; it is about ensuring that convicted offenders do not benefit from what they write. Many of us would agree that some of what is written is in bad taste. Frankly, I find a variety of books about real crime distasteful but would not seek to ban them. That is not the intention. The purpose of the LCM is to deal with those who seek to profit by exploiting their criminal deeds.

If criminal X wrote criminal Y's memoirs, we would seek to deal with criminal Y, to ensure that they did not benefit in any way. We could not necessarily prevent someone who had a talent for it from penning some prose, but we could ensure that their compadre would not benefit financially. The purpose of the measure is not to restrict freedom of expression; it is to prevent people from making any substantial gain by exploiting their crimes. We recognise that there will be murky areas—for example, ghost writers. To some extent, the proposed scheme is akin to civil recovery, when we use our powers to ensure that we tackle people who say that they are running a legitimate company that we know is a front for organised crime. It is a question of having the appropriate laws and investigating matters diligently. The measure in question is about profiting from writing rather than about the writing per se.

I would like to push that a fraction further. Suppose that I am a notorious criminal and my son and heir decides to write a book about my crimes and take the profits—which might be an interesting way of overcoming inheritance tax issues. Would he be caught by the proposal?

Not unless the book became part of a criminal enterprise, in which case it would be dealt with. Such matters are dealt with specifically. There are manifest injustices that are clearly unacceptable. I know that Paul Martin, who is not here today, has rightly pursued a case that has caused great distress to a family in his constituency. We know that there are people who ghost-write books that glorify crime and that individuals who have committed crimes profit from those books. That is what we are seeking to target. We are not seeking to get into questions of taste or of what can be written. We do not have the power to do so, and, to an extent, it would be inappropriate for us to do so in any case.

We cannot devise a law for every possible scenario. Books that purport to be written by people who are involved in criminal activities tend to be ghost-written, and we have to ensure that those criminals do not benefit from those books. The issue of criminal families is a matter for the serious crime task force, which will do what it can to tackle them.

I repeat that the aim of the proposal is to stop individuals benefiting from writing or publishing material or from having material ghost-written for them. Families and communities have suffered, and the ethos of the proposal is that people should not be able to profit from the harm that they have perpetrated.

We all share that view.

As there are no other questions, I will suspend the meeting briefly.

Meeting suspended.

On resuming—