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Good afternoon and welcome to this joint meeting of the Justice 1 Committee and the Justice 2 Committee. The reason for the short—and unusual—delay is that we are not supposed to start our meetings before the published time, which in this case is 2 pm. There is a first time for everything. As the Minister for Justice has only 45 minutes to give us today, committee members have ensured that we are on time and ready to start.
First, I thank the convener for the invitation to come before the committees today. She will know from previous events in which both committees and I have been involved that I consider Scotland playing its role in Europe to be an important issue. There are many areas that we can influence.
Thank you. For the purposes of today's meeting, committee members will be primarily interested in the justice and home affairs agenda as well as in the presidency as a whole. I am sure that we will run out of time today, so it would be helpful if you could relay some of that information to the committees in writing.
I am more than happy to do that and to provide an outline of what is happening at each of the meetings at which the focus will be on the justice and home affairs agenda.
What role do you expect to play in the UK presidency? What input do you think that you will make to deliberations?
I take very seriously the issue of being part of the UK delegation, where appropriate. I expect to continue to work with my ministerial colleagues in both the Home Office and the Department for Constitutional Affairs, because there are issues that relate to both those UK Government departments. I expect, where appropriate, to be part of the UK delegation to the formal councils. Since becoming the Minister for Justice, I have tried to attend a formal council meeting at least once during each presidency and to play as full a part as possible. We are also working closely with our colleagues to ensure that in Scotland there will be a number of significant events that will allow me and, possibly, the First Minister to be involved. A number of events will also be of particular interest to the committees. Members will want to receive early notification of those, so that they can be involved.
I would like to ask about the Hague programme action plan, which we expect to be published at the end of May. What elements of the plan does the Executive expect to be of particular significance to Scotland and how is it approaching them?
You are probably aware that the Hague programme action plan follows on from the work that was done in Tampere back in 1999. We will continue to take an interest in a number of issues, especially in the general area of criminal justice. I refer, for example, to the continuing programme of mutual recognition of judicial decisions. We also expect further work to be undertaken in relation to the approximation of criminal law and procedures throughout the EU. There is a range of other issues on which we must continue to work to ensure that Scotland's unique legal system is respected, at the same time as we seek mutual recognition across the different member states. We have worked on that matter carefully and closely with our UK colleagues, to ensure that it is included. The issue has been raised not just by me, but by some of my Home Office colleagues at various stages. Once the action plan has been produced, we will consider it in more detail during the UK presidency.
My next question relates to the presidency and one element of the Hague programme, which will be reflected in the action plan. Immigration and asylum is a reserved area, but the Scottish Executive may have an input into policy. You may have seen the House of Commons European Scrutiny Committee's fourth report of 2005. The Parliamentary Under-Secretary of State at the Home Office states that the UK will opt into the asylum and immigration aspects of the programme
You mention the fresh talent initiative, which is an important part of Scottish Executive policy. We will continue to work with Home Office ministers and others on that. However, I take seriously the point that it is right and proper that, when Scottish Executive ministers attend JHA councils, for example, they should represent the UK. When discussing certain matters, including at council meetings, I have spoken on behalf of the UK delegation. Although we attend to ensure that Scottish interests are represented, we also represent wider interests as part of the UK delegation. There will be on-going discussions at official level. If members want more detail on those, I am sure that that can be provided. However, as a matter of principle, it is important to recognise that we have an input but are part of the wider UK delegation.
Will you ensure that, when the national interests of the member state are determined, the Scottish Executive's position on the fresh talent initiative, for example, is included in discussions?
I will certainly seek to ensure that the Executive's position is represented in discussions, but if I attend a JHA council meeting, I do so as a minister who has a responsibility to consider some of the issues that concern the UK. I must play a broader role than that of seeking only to represent Scotland's interests. At council meetings, it is just as important that I represent wider UK interests.
What role do Executive officials play in the discussions on such subject areas? Do they take the lead?
Home Office officials and senior Executive officials have regular discussions on some of the specifics of immigration and nationality issues. Executive officials will also be included in discussions at the European level when that is appropriate. The short answer is that Executive officials are involved in those discussions.
As part of the Commission's work programme action plan, a policy plan on legal migration will be produced. Are Executive officials in discussions with the Commission on that plan or is that all being done through the UK?
Executive officials have been involved in those discussions, in which we have had good representation. The officials might want to give the committees a bit more detail.
We have formed an arrangement to have regular meetings with some of our colleagues who are responsible for both the policy and the operational aspects of migration. To reinforce our regular contact, we have set up meetings twice a year or so at which we can bring together any on-going issues in a more strategic way. If we meet the people at the other end, it means that when we have discussions day by day and week by week we know with whom we are dealing.
Is that contact with the Commission?
I was talking about the UK people who deal with immigration and asylum matters.
My question was about the Commission's policy plan on legal migration, which the Hague programme had requested be produced by the end of this year. Are Executive officials involved in discussions with the Commission on that?
The answer that was given shows that my officials follow the correct route for dealing with such matters. There will be occasions on which it will be right and proper for representations to be made directly to the Commission. As regards the legal migration plan, it is my understanding that work has been undertaken in conjunction with Home Office officials, as Valerie Macniven outlined.
You talked about Executive officials being fully involved in the process along with UK colleagues. Is that the position in all areas, or will Executive officials lead on negotiations on particular proposals, because of their potential effect on Scotland?
That may well happen. Officials will probably want to give some examples of occasions on which they have taken a leading role, particularly in relation to the civil justice agenda. There is a particular need for involvement of fairly senior officials in discussions on some of the matters that are about to come up, in which the committees will probably want to take an interest. That is being progressed.
You mentioned civil justice. Will officials also play a leading role in relation to criminal justice matters or is their involvement restricted to the area of civil justice?
I referred to civil justice because some interesting proposals are about to come on to the radar, in which the committees might want to take an interest—time permitting, I might be able to return to those. That may well be the case on the criminal justice side, too. I realise that I am at risk of labouring the point, but the fact that we have a different legal system in Scotland means that there are opportunities both to learn from elsewhere in the EU and to contribute to developments. It is right and proper that we have tried to lead the way in some areas. Executive involvement is not restricted to civil matters.
I just wanted to clarify that point.
You said in your opening remarks, minister, that there are plans for a wide range of justice-related events to take place in Scotland during the UK presidency. Will you tell the committees more about the purpose of the civil justice and policing conferences in particular?
On the policing conference, we have a particular interest in sharing best practice around the policing of youth crime and antisocial behaviour, and links have been established with other EU countries. There is an opportunity for us to bring in people to share examples of how those problems have been tackled. Sometimes, there is a tendency for us to think that we are the only ones who are facing such issues.
Among the themes of the civil justice conference will be access to justice for citizens in a European context. We will examine how disputes that have a cross-border dimension to them can be settled and will focus on alternative dispute resolution, in which I know that the committees are interested. We will consider both formal and informal procedures and will perhaps bring in experts from across Europe to help to inform policy and practice. The conference will focus on the practical aspects of how disputes can be resolved.
You also mentioned the best of Scotland week in November, and the justice seminar that will take place. Will ministers participate in that event directly? What do you hope will be the outcome of the seminar?
I understand that planning for the seminar is being undertaken at the moment. The idea is that there will be a series of speakers at that event, and Valerie Macniven can update the committees on the planning for it.
A number of events will take place in Brussels during that week, and we want to use the opportunity to extend knowledge in Brussels about the Scottish justice system. We hope that we will be able to inform people who are working in Brussels and make them more generally aware. It will be a showcase event on the practicalities of the justice system in Scotland.
It is worth clarifying—we could set this out in the information that is to be supplied to the committees—that the different events will target different audiences. For some, we are seeking to bring in other justice ministers and politicians; others will be at the official level and will be about giving information and trying to get across some of the issues that are particularly relevant to Scotland. All of that, taken together as a package, constitutes a significant volume of work for the people who are involved. If it all goes to plan, it will have a positive benefit in getting out information about what happens in Scotland and in getting people to come here.
Have you planned any follow-up activity to maximise the impact of all that work for the longer term?
It is important to recognise that we are holding the seminar because there is an agenda coming down the line in Europe. For example, there are several green papers in which the committees will be interested, and the seminar will give us an opportunity to focus on those areas. Also, for the policing conference, we have established working partnerships with people in Ireland, Bavaria, Latvia and Spain. The conference gives us an opportunity to deal with some of the issues and then to follow the process through. The different events will have different follow-up, depending on the target area.
There is a lot of interest in the area of law enforcement co-operation, on which members have quite a few questions.
The Hague programme has considered ways of improving the practical exchange of criminal intelligence and establishing better co-operation between EU member states in trying to combat serious organised international crime. What kind of representation do we have on Eurojust and Europol, which was established in 1999? Has Scotland always had such representation? How has Eurojust panned out?
It is important to put on record the fact that the Scottish police service benefits from Europol, which is the EU's criminal intelligence agency, as members are aware. Europol has no operational powers, but it supports national law enforcement agencies. The Scottish Drug Enforcement Agency in particular benefits from the rapid and secure exchange of intelligence between member states on a range of serious and organised crime issues. Police forces and officers in Scotland are working with their colleagues in the rest of the UK to try to remove any barriers that might exist to successful co-operation throughout the EU.
Does Scotland have representation in Eurojust and Europol?
Close working takes place with both organisations. At various stages, different people are involved in different pieces of work.
Is involvement ad hoc? A Scottish representative does not work in either organisation.
That is not my understanding, but I will be corrected if I am wrong. We are represented in Eurojust but we have no dedicated representative in Europol.
Can we explore how that works? How is the dedicated representative appointed?
We could provide you with that information later.
That would be helpful. How are management issues and liaison between Scotland's police forces and judiciary and the two organisations handled?
I can provide further information by way of examples of co-operation. I know that people from the Crown Office and Procurator Fiscal Service have had the opportunity to consider secondments. Co-operation back and forward has taken place on several issues. It might help you if we were to supply further detail.
That would help, because the matter is a priority of the Hague programme and is important. Have any notable prosecutions in Scotland arisen from co-operation with the two agencies?
It would be better to obtain that information from the appropriate people—the law officers.
The Justice 1 Committee is about to start stage 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. You referred to cross-border co-operation by the Scottish Drug Enforcement Agency, within which is the Scottish high-tech crime unit. In a European context, to what extent are we upping the ante in relation to the activities of paedophiles and sexual crime of one sort or another?
The member raises a couple of interesting issues, one of which is intelligence sharing post Bichard and the resulting recommendations. A case that gained a fair amount of notoriety prompted the Belgians to make proposals to ensure that people who have been convicted of paedophile activity in one member state cannot be employed to work with children or seek access to children elsewhere. That is a live issue. We are examining how best to share information. There are issues that we need to consider around enforcement, because it has been suggested that information be recorded alongside the conviction information. The Scottish context is that with the list of adults unsuitable to work with children we have set up a slightly different system. There are issues to tease out, but the matter is on the agenda.
When I visited Bapaume prison near Paris in 2002—for entirely different reasons—it was suggested that more than 50 per cent of people incarcerated in French prisons had a sexual element to their crime, whereas here the figure is probably 8, 9 or 10 per cent. Are you satisfied that a consistent view is being taken throughout Europe? Should more work be done to ensure that we are not failing to catch things or are accepting things from other countries about which we would take a rather different view?
There are issues to do with mutual recognition of how offences are defined and prosecuted and the sentences that are imposed in different jurisdictions. We could perhaps consider that in more detail, without straying into a debate about the number of people in our prison system for whom the index offence might not be a sexual offence but about whose behaviour there might be issues.
On the Scottish dimension, how does the proposed serious organised crime agency fit in with Europol and Eurojust? Will there be a direct umbrella link between one strategic body and another and then a subsidiary, drop-down link to the Scottish dimension? I was interested in what you said about the SDEA. Will we, under the serious organised crime agency, have a direct Scottish link to the two European agencies?
Without getting into a discussion about the relationship between the serious organised crime agency and the Scottish Drug Enforcement Agency—that discussion will have to take place elsewhere—I will say that the important thing for us has been to ensure that Scottish interests are represented in the way in which SOCA has been set up and in the way in which the SDEA fits in with it. As I said earlier, the SDEA has strong operational linkages with the relevant European institutions and contributes to their work, as well as working closely with colleagues elsewhere. I expect and will try to ensure that those positive working relationships are enhanced by the work of SOCA and that the SDEA's on-going international work continues.
I move on to civil justice. Just last month the European Commission published the green paper on applicable law and jurisdiction in divorce matters. The Executive has made legislative proposals on family law, consideration of which the Justice 1 Committee is just about to begin. I appreciate that there has not been a lot of time for the Executive to consider the green paper, but does it have implications for family law in Scotland?
Yes. It is perhaps worth stating at the outset that the green paper was published in March, and already the UK has indicated that it has serious reservations about it. Courts and UK jurisdictions apply only their own law in divorce cases; there are issues around how we would apply international law in domestic circumstances.
In which specific areas might the proposals create problems or challenges?
I am trying to think of a straightforward example, but I cannot provide one off the top of my head. However, there could be difficulties if we had to ask our judiciary to apply the law of another member state in a Scottish context when the grounds for or rules relating to divorce in that member state were different or were governed by principles different from those of Scots law. It is felt that more needs to be done to tease out such issues. It is important that we carry out some consultation on the proposals, to help us to formulate our response to the green paper.
In response to a question from Jeremy Purvis, you spoke about how the Executive has worked with the UK Government to progress issues. However, clearly there will be a Scottish dimension to the proposals that we are discussing. Does that mean that the Executive might produce its own response to the proposals, once it has had time to consider them?
It is important that, when an issue has a particular Scottish dimension, we should be able to produce our own response at green paper or consultation stage, where possible. We have already done that in relation to other matters. Once we have produced our response, the process is for the UK, as a member state, to develop its position. However, we have an opportunity at the earliest point in the process to influence that position.
I have a quick follow-up question on the subject of the need for unity in European decision making. Are the substantial opt-outs that Denmark has in this area likely to present particular difficulties?
I am not sure whether the opt-outs will create difficulties—we will have to see how the discussions progress. However, a working group has been set up to take the matter forward. I understand that an Executive official will be able to be involved in the group, so our interests will be represented during the process. We may want to provide the committees with updates and further information, as appropriate.
The minister may be aware that the Justice 1 Committee was in Brussels at the tail-end of last year and that members had the opportunity to speak to officials, especially from the civil justice unit of the Commission. Without exception, all the political parties represented on the committee expressed alarm at the rate at which the European Union was attempting to deal with the conflict of laws issue in civil justice. Obviously, the Commission's view is that movement is far too slow. From our point of view, having to scrutinise it, we feel a bit inundated even by the civil justice side of things. There is a white paper on divorce and there will soon be a paper on succession, and so on. We cannot afford not to be involved in this.
You have picked up on a number of important issues. I believe that we need to try to avoid what you describe as jurisdiction shopping. We must ensure that the principles of mutual recognition are applied rather than have people being able simply to go round about to try to find the member state that gives them the best deal. At the same time, we should make justice more accessible, which, in some instances, may mean simplifying the processes.
We have a few minutes left, so I open the floor to members who have not asked a question. If no one else has a question, there are a few final issues that Stewart Stevenson wants to raise.
I want to pick up on some of the work that colleagues on the Justice 2 Committee have been doing on criminal justice. It has been suggested that the Commission hopes that framework decisions on the European evidence warrant and procedural safeguards will be adopted by the end of the UK presidency. Can you give us an update on that and tell us what the Scottish involvement in that will be?
There were discussions at the February JHA council, on which I reported to the committees in a letter. Some of the issues that were discussed concerned the questions of dual criminality and territoriality. The work that was requested following that particular council is continuing. Scottish Executive officials are involved in that. Valerie Macniven reminds me that one of the officials is in Brussels today dealing with that issue. There is still some work to be done following the last council, but it was agreed that officials would continue with that to get a resolution of the text.
The other issue that is still on our list is the green paper on bail. The justice committees are expecting and hoping to see a copy of the Executive's response on that. When might that be seen and what issues are highlighted for Scotland?
As a general principle, there is no problem with the committees having access to the work that the Executive has done; I am sure that we are able to provide that. Again, officials at various levels have done some work.
Is allowing people who are on bail to be on bail in a different jurisdiction within the European Union being considered?
That is indeed one of the issues. There are questions around how that would be monitored and supervised and what the sanctions would be if an individual failed to comply. Those issues are teased out in much more detail in the green paper.
Are there cross-border tagging arrangements that might go with that?
I have not yet come to that conclusion.
What stage is the paper on bail at?
The green paper has been submitted to the Commission. The United Kingdom package, which consists of the Home Office's response and the Scottish Executive's response, was submitted last month. A meeting of experts was held on 8 April, at which a partial draft framework decision was discussed. I did not attend that meeting, but I understand that the experts expressed a range of views. The Commission has now gone back to think about how to progress the draft in light of those views and of the responses received from the member states in their green papers.
I will conclude the session by saying that I realise that we cannot have access to everything because some of it is work in progress. However, we would welcome any papers that you can give to the justice committees.
I suggest that when the action plan is produced, it might be useful to give the committees an update on where each of the different items is, the likely timescale, and perhaps the critical decision-making points that would inform the committees. At that stage, no doubt the committees would have further and more detailed questions. I appreciate that today it has been possible only to scratch the surface on some of the issues rather than go into all the technicalities.
I welcome what you say, minister. There is also a practical decision that occasionally confronts Pauline McNeill and me as conveners. It might be necessary for one or other of the committees to look at something quickly and we have to agree on which committee has time to do that. If we know in advance roughly what your timescale is, it is extremely helpful to us. We can then try to organise our activities accordingly.
I am sure that we can organise something on that.
We are almost trying to explore models that other committees could use. So much of our work is being dealt with at EU level and we are not the only committees that are in this position. We are trying different ways of fitting into the process. I can never remember whether it is a matter for the Conveners Group or the Scottish Parliamentary Corporate Body, but we need to be able to travel to Europe at least twice a year to make contact with the Commission and other officials so that they know how we work and so that we have some contact with them. That is work in progress.
Meeting closed at 14:46.