Under item 3, we will take evidence from the Minister for Justice on justice and home affairs in Europe.
Thank you, convener. I did not anticipate that you were going to move immediately to questions. I assumed that I would have the opportunity to set out some of the issues that are of particular interest to the committee and to expand on them, but as everyone is shaking their heads, that is obviously not the case. [Laughter.] So there goes all my work in preparing a wonderful speech for you. I will, of course, try to move straight into answering the questions.
I think that we should also welcome your colleagues, who I am sure had some part in that extra work.
Yes, indeed. I also welcome those whom I have been allowed to describe as the anoraks, who will deal with the specific issues to be addressed in this session.
Are there any other issues that are still under discussion, apart from the six-hour rule?
Danny Jamieson may be able to add information on that from the working groups.
Yes. It would appear that, following the justice and home affairs council meeting of EU justice ministers on 1 June, the dossier was referred back again to the working groups. What was under consideration at that meeting on 1 and 2 June was a document that presented an alternative series of proposals, which were less detailed than the European Commission's original proposal. There was also a suggestion that, given the amount of time that the working groups had already spent on the matter without appearing to be able to arrive at an agreement, an alternative might be to consider a series of practical measures rather than to focus on creating specific rights that might be at variance with the ECHR. That is the latest information that we have. The dossier has been remitted back to the working groups for further consideration of those alternative approaches.
Does the Executive have any view about changes or a view on the six-hour system as it is operated by the police?
Rather than asking about the implications of the discussions that are going on at European level, you are asking whether there ought to be changes to our domestic system.
You are not asking me, minister; I am asking you.
I think that the matter would require a great deal of further consideration. If the committee wants to look into that further or thinks that we should explore it further, that is a separate issue from the implications of the directive. I do not mean to be disrespectful, convener, but I think that that is a separate issue.
As you might be aware, when committee members visited Brussels, we discussed with officials the green papers on bail and sentencing. Can you give us an update on progress in respect of the Executive's input in those areas?
This may sound like I am repeating some of what I said in relation to the previous dossier, but we have made representations on those issues and on bail in particular. We have no further recent information from the Commission on when the proposal on the mutual recognition of bail decisions will be presented, but we will scrutinise it closely when it appears. We will take full account of our on-going domestic arrangements before deciding on our approach to the proposal. One issue for us is that we have made a commitment to tighten up our bail and monitoring provisions, so we will need to examine the proposal when it is introduced. I reassure the committee that any proposal that is brought forward will be subject to rigorous scrutiny if that is required to protect the position that we have decided is best for our domestic arrangements.
You mentioned your concerns about the proposal to make it necessary for the police to allow people to have legal advice immediately when they are arrested rather than after a wait of six hours. Do you have any thoughts about the proposals on free interpretation and translation when someone is arrested? One issue that has been raised with me locally is that there is a lack of capacity to provide such services for migrant workers. Is that a problem?
I am not sure whether you are referring to the practicalities of ensuring that someone is available who can interpret and translate or to the creation of a right that would enable people to access those services at an earlier stage. The practicalities of the issue have not been brought to my attention, but if officials have further information on the issue, I will be more than happy to provide that to you.
Obviously, if such a right were created, the practicalities would kick in because we would need to be able to provide such services for people.
Sorry, I may have misunderstood the question. Obviously, if there were such a right, we would need to ensure that the resources could be put in place. I thought that the question was perhaps suggesting that there might be issues to do with people being detained beyond the six hours at present when access to interpretation or translation is an issue. Obviously, if that were a problem, we would need to look at it.
I assume that some areas of EU work are always likely to have resource implications for criminal justice bodies in Scotland. One obvious example is that police and procurators might need resources and training for the European evidence warrant. How will that be factored in and what is the likely scope of it?
Sorry, I did not catch the question.
How will those implications be factored into our normal budget considerations and what is the likely scope of the additional resource requirement?
At this point, I cannot give a figure about the likely scope. We are dealing with a whole range of issues. In preparation for today's meeting, I counted more than 20 different dossiers of work that is on-going. We have simply highlighted the areas that we think have the most immediate implications for us.
Obviously, co-operation is important. Is progress on some matters slower than you would like? If so, does that have implications for public safety? For example, the latest Hague work programme describes work on the mutual recognition of prohibitions from working with children as slow. Does that cause you concern?
Overall, it is fair to say that, for various reasons, timescales on several parts of the Hague programme have slipped. One reason why progress on the prohibitions from working with children has been slow is the complexity of the systems. Member states operate different systems and some are much more prescriptive than others. Some may use lists and some may consider the situation case by case when people apply for jobs.
I accept that difficulties exist and that the task takes time—perhaps longer than any of us wishes. What is being done in the interim to ensure that children in Scotland are protected from any individuals who may have been convicted of sexual offences in other member states?
Some concerns are obvious. More people are moving around; people move for jobs and education and to do business. It is important that our system is as robust as possible. We will obviously rely on obtaining appropriate information when people apply for jobs here that involve working with children and we will want to ensure that checks are done. That can sometimes take time, which causes frustrations. Even in our own system, checks south of the border can sometimes take a long time. Members frequently write to ask me to speed up the process. As always, we must achieve the right balance. We must do our bit and ensure that we can access appropriate information when possible. I am sure that further improvements will be made.
In the work on the transfer of sentenced persons between member states, an outstanding issue is the extent to which prisoners should have a say in transfers. What is the Executive's position on that?
In some situations, prisoners can request a return to Scotland to serve a sentence. In my time as Minister for Justice, I have dealt with several such requests. Some have seemed reasonable. When a person has family connections or a link to an area, it is logical and sensible to allow the transfer to take place. Other requests have not involved the same family connections. In broad terms, I understand that we would probably collect more people than would want to leave as a result of such arrangements.
The Executive makes decisions case by case rather than taking a general stance.
People can apply to return and some people take up that opportunity. We would be wary if it were expected that a transfer would happen without any reference to our prisoner numbers and a range of other matters.
So the Executive says that it must have input and flexibility. You would resist a directive that removed flexibility and said that you had to take a quota, for instance.
Our general approach on all these issues is to ensure that we have a degree of flexibility rather than to impose complete harmonisation on everything. Also, as I have just been reminded, we try to ensure that the transition of prisoners who will return to this country at some stage is managed smoothly. For example, if a UK national wants to return to live in this country permanently, it may be better that we deal with that in a phased and managed way, rather than waiting until the person turns up at the end of a sentence served elsewhere. We take account of those kinds of considerations case by case.
Are you saying that, although the development of a framework is important, it must have some in-built flexibility?
Generally speaking, we take the approach that frameworks ought to be helpful in solving problems and securing better outcomes. From the point of view of making our streets safer, the rationale for a framework that allows people to return to Scotland to serve part of their sentence is that we can then ensure that they get the correct supervision and support when they move back into the community. If it were simply a numbers game, I would be concerned about that.
I am obliged for those answers.
I want to ask about the exchange between member states of the information that is contained in criminal records. It has been pointed out to us that some member states are concerned about the fact that, for obvious reasons, the UK has more than one central authority for holding such records. What stance has the Executive taken in addressing concerns about the fact that we have a separate judicial system?
Let me explain the process. Under the Council decision on the exchange of information extracted from criminal records, which is basically intended to improve information sharing among member states for policing and judicial purposes, each member state must designate a central authority to receive requests for information from other member states. The Association of Chief Police Officers provides that service for the UK. Member states have not agreed to there being more than one central authority in each member state. Obviously, we need to ensure that all our systems for collecting information both in Scotland and more broadly in the UK are able to feed into one another so that they can provide that information. However, each member state has only one point of contact or central authority for the passing on of that information.
In effect, the pressure from other member states is that the UK should have, for want of a better phrase, one point of contact, rather than that it should centralise all records.
If the concern is that all Scottish criminal records will be held at a central point in the UK, I can confirm that I do not think that that will be an issue. In fact, under one proposal that could have been considered, the central authority for the UK could have been based in Scotland. There would have been nothing to stop that. Indeed, I was happy to pursue that proposal at various stages.
I accept that the point of contact could be based anywhere within the UK, but that was not the question. My question is whether there was pressure from other member states for centralisation of criminal records. Were other member states happy for the UK simply to have a single point of contact?
It is important to recognise that, in Scotland, the Scottish Criminal Record Office will be an authority for the purpose of replying to requests for records that are held in Scotland. Although there will be a single UK point of contact, the SCRO will still have a central purpose in that.
If another member state—for the sake of argument, let us say Germany as that happens to be where the football is being played—asks the UK for information on a person without knowing where the person is from, can the interchange systems among the police forces in the UK simplify that request in a way that allows it to be processed rapidly?
I suggest that the answer is yes. If a request for information were made on that basis, the various police forces in Scotland and throughout the UK would be able to access the details and pass on the appropriate information.
What timescales would be involved in handling a request that was received in the UK?
It must be understood that information might be sought for different purposes. There would probably be one timescale for dealing with a request for information on a person's previous convictions that was intended to be used in a court abroad, for example, but I am sure that the relevant authorities would be able quickly to supply information that was needed immediately. I could not say off the top of my head how many hours and days would be involved in dealing with requests, but I expect that the timescale would be affected by the urgency of the request. In fact, my officials have just advised me that requests ought to be replied to within 10 working days.
I have a couple of brief questions on implementation. Will the Executive monitor the performances of other member states from which information is requested in order to determine whether they have met requirements? Sometimes in the Parliament too much is said about our duties to meet requirements. What would happen if other member states did not meet our law enforcement agencies' requirements? What position would the Executive take if a member state such as Germany did not provide information in good time to us?
I am sure that we would want to follow such things up. Perhaps my officials could say whether we have not received information within the appropriate timescales.
I will make a general point. Where there are no infraction proceedings, the implementation of EU Council third pillar framework decisions is monitored by the Commission, which routinely requires member states to indicate what measures they have taken to implement dossiers and regularly reports on them. An individual member state cannot assess another member state.
I appreciate that, but I wondered whether there was a mechanism in Scotland that would assist the Executive in making representations to the Commission after our police forces had made requests. However, I think that that point is on the record and I see the minister nodding to acknowledge what I have said.
It is important to remember that we are talking about the exchange of information about criminal records and that the primary intention is to improve information sharing for policing and judicial purposes. Information will not be stored in a random fashion. When requests are received, they will obviously have to be responded to, but the information that is provided will primarily be about where a record is held on the criminal history system. The appropriate member state will be notified if one of its nationals is convicted in a Scottish court, for example. My understanding is that we will not supply a whole range of information about people; as I say, we are primarily talking about information that is held on the criminal history system.
Does that mean that it would not be possible to send DNA samples?
We have already discussed DNA samples and profiles in another context. I am not aware of any suggestion that samples would be sent.
This stream of work deals exclusively with criminal convictions. Other proposals further back in the stream relate to what Jeremy Purvis asks about and there is a draft framework decision on the principle of availability, which covers DNA information. However, that is a considerable way off and negotiations have not yet started on it.
Nothing in the orders before us today would allow the exchange of DNA samples and profiles.
The framework decision on financial penalties is to be implemented in March next year. I understand that the Executive has stated that it needs to liaise with the Home Office on technical matters so that a fine that is imposed in one member state can be enforced in another and to ensure consistency throughout the UK. Have those matters been addressed successfully?
I cannot provide much of an update today on whether we have resolved those issues. There have been concerns about the compatibility of financial penalties. Officials might be able to give us news from the latest working group meetings.
The framework decision has been agreed and the relevant division in the Justice Department is considering issues that it raises. It will continue to liaise with the Home Office.
Perhaps you will be able to come back and update the committee on those discussions.
We will certainly be able to do that. Although we can pursue matters to an extent, we are in the hands of others as far as timescales are concerned. I recognise that that is not particularly satisfying for the committee, but I cannot give you an answer to your question today. We will supply the information when we can.
You have highlighted two or three matters that are works in progress. Perhaps you will write to both justice committees at the next opportunity about the generality of what comes out in the wash, so to speak.
I certainly hope to do so. One of the things that I planned to say in my opening remarks was that I have tried to keep to my previous commitment that whenever I attend justice and home affairs council meetings, I write to the committees thereafter to update them on decisions taken and progress made. I will continue to do that.
The draft Council decision on the improvement of police co-operation between EU member states seeks to improve co-operation between law enforcement authorities, for example in the prevention and detection of crime, at international events and in operational planning. What is the current status of that draft Council decision?
Again, I understand that this will sound as if progress has ground to a halt. We have been in touch with Home Office officials about the draft Council decision. We did not identify it as a key area on which we want to focus, but one of the Westminster select committees has picked up some issues about the decision. I am not aware of any recent meetings of the working groups about the matter. I am sorry that I cannot give the committee any further information about how it is likely to be progressed.
Okay, but you will keep us informed as and when information comes along.
Indeed.
We turn now to civil judicial co-operation. The small claims procedure in Scotland sets the limit of a claim at £750. A number of organisations consider that to be low. The equivalent limit in England and Wales is £5,000. The proposed limit under the compromise text for the European small claims procedure is €2,000. Has the UK Government been successful in its efforts to amend the text, so that individual member states have the flexibility to set a higher limit?
You referred to the current position in Scotland. As you are aware, that has been the subject of on-going discussions since the previous session, but we have not yet managed to reach a consensus on how to deal with our small claims procedure. You referred to the European situation. People now travel more widely to do their business and families tend to move around. We want consumer issues to be dealt with in a more satisfactory way. Rather than harmonising procedures to create one system across the whole EU, we want to ensure that where cross-border issues come into play, they can be dealt with more quickly than was the case in the past.
Do you intend to alter the current Scottish limit as a result of the intended creation of the European small claims procedure?
As you and other committee members may be aware, there have been a number of discussions about our small claims procedure, whether it is fit for purpose and whether the current limits are correct. We have been reviewing the position here, rather than reacting to developments in a European context. The discussions are on-going.
The UK Government was concerned that the version of the small claims procedure on which it consulted in 2005 applied to internal cases as well as cross-border cases. Does the compromise text still include internal cases?
No. I understand that it is restricted to cross-border cases. That is the basis on which I answered the previous question.
You will be aware that three strands of policy work are being pursued at EU level in relation to family law. Given that the proposals on divorce, maintenance obligations and matrimonial property are regarded as being closely interlinked, does the UK Government's decision not to formally opt into negotiations on the maintenance obligations proposal mean that it must take the same approach to the work on divorce and matrimonial property?
It is for the UK Government to decide how to proceed case by case on all the issues that you raise. The Commission has not issued a final proposal on the applicable law on jurisdiction in divorce. That is not likely to happen until later this summer. At this point, it is unclear what the final Scottish Executive and UK Government position will be. In parliamentary debates, members indicated strongly that we should seek to protect the current position in Scotland and to ensure that, by adopting a different model, we do not create situations in which families are subject to less certainty within a new structure than is the case at present.
I understand that the UK Government can opt into the finalised instrument and that, in practice, it will participate in negotiations. Can you keep us up to date on all three strands? That would be helpful to the committee.
We can do that. Paul Cackette is the expert on these matters and will keep me apprised of the progress that has been made. We will be more than happy to provide the committee with information on that.
As there are no further questions, I thank the minister and her colleagues for attending this afternoon's meeting and I thank her for the openness and fullness of her answers. We look forward to receiving the notes that she has promised in due course.
I am sorry that on many occasions I had to tell the committee that it appeared as if little progress had been made. I hope that the committee will bear with us as we attempt to provide further information on matters whose timescales are outwith our control. I put on record the fact that, during the UK presidency, we achieved a great deal. I did not have the opportunity to speak about that today.
The committee is grateful for the update that you have provided.
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