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Good morning and welcome to the third meeting in 2006 of the Justice 1 Committee. As usual, I ask members to switch off anything that might interfere with the sound system. All members are present, except Bruce McFee. No apologies have been received, so he may join us at some point. I introduce our adviser on the Scottish Commissioner for Human Rights Bill, Jim Murdoch. We also have with us Sarah Harvie-Clark and Murray Earle, who are from the Scottish Parliament information centre and have been assisting us through the passage of the bill.
Given that the proposed Scottish commissioner for human rights would be an office holder of the Parliament, is the SPCB content with the Executive's consultation during the preparation of the bill? We have your written submission on that issue, but I ask you to expand on those comments.
It might have been helpful if there had been greater consultation with the SPCB about the financial memorandum. However, we have an opportunity to feed into the consideration of the bill through the committee, for which we are grateful. The minister in charge of the bill, the Deputy Minister for Education and Young People, was recently a member of the SPCB and had the portfolio responsibility for commissioners, so he probably would have been aware of the likely views of the SPCB. However, more consultation with us might have been helpful.
Do your concerns relate only to the bill's financial aspects?
We would like one or two other aspects of the bill to be amended. First, the bill proposes that the accountable officer should be the chief executive, but we feel that, in line with what happens with other commissioners, the accountable officer should be the commissioner himself or herself.
I hope that Ms Radcliffe is familiar with the Finance Committee report on the bill, because I want to address what it says on the relationship between the corporate body, the commissioner and—the third leg of the stool—the Executive. First, are you satisfied with the way in which the commissioner's budget will be set and with the corporate body's role in that?
We would like greater clarity in the bill about that relationship. We would like the bill to make it clear that it is for the corporate body, in discussion with the commissioner, to set the budget. With other commissioners, we can only comment on the budget before it goes to the Finance Committee, but it would be better if the bill was clear that the budget is to be set by the corporate body, in discussion with the commissioner.
Your response appears to suggest that you see the corporate body as being the senior partner in the negotiations. You stated that the corporate body would "set the budget." Are you satisfied that it will not compromise the independence of the commissioner if you play that role, rather than the position being one in which the commissioner proposes and the corporate body disposes, as is the case with other commissioners?
The lack of clarity in relation to other commissioners is caused by the fact that the corporate body does not dispose; it can only comment on what the commissioner has proposed to the Finance Committee. We found this year that that was not a very satisfactory arrangement. It would have been better if the budgets had been agreed between the commissioners and the corporate body and had then gone to the Finance Committee. The Finance Committee has recommended that it would prefer that mechanism, which we would like to be codified.
I understand perfectly the tension that you describe, but the important part of my question, which you really need to address, is whether, by making the role of the corporate body more explicit and perhaps greater than it has been, we risk compromising the independence of the commissioner.
I do not think that that risk would arise, because someone, somewhere must say what the limits are on spending and be accountable for the use of public money. At some stage, someone will have to say whether something is or is not giving value for public money. It seems to me that, in this instance, the corporate body is the appropriate body to do that. I do not see why that should in any way compromise the integrity or the functionality of the commissioner.
You said in your response to my colleague Marlyn Glen that one of the changes that you wish to see made to the bill is for the commissioner to be made the accountable person in law. In the answer that you have just given, you talk about the SPCB being accountable for expenditure. Can you help me to understand the distinctions that you are making?
All the other commissioners are the accountable officers—is that the technical term?
They are accountable for the money that they spend.
They have to sign the accounts. They are accountable to Robert Black or his successor.
They can account for the money that they have been given in their budget, which is different from saying that we think that the amount of money that they need to fulfil their functions and give value for money is X amount. Someone, somewhere must set the budget, but that does not mean that how the commissioner exercises their functions is compromised, unless the budget is set at such a ridiculous level that they are not able to fulfil their duties. We have a statutory responsibility to enable them to fulfil their duties.
What we are looking for is greater clarity in the process. When we consider commissioner budgets, there are considerable discussions at official level before the matter reaches the corporate body. The corporate body then takes evidence from each of the commissioners about their budgets before putting their budgets forward as part of its overall budget bid to the Finance Committee. We want there to be greater clarity about what the final determining element of the budget process is.
Colleagues will ask about how much money is needed. I will close this part of my questioning by asking about the SPCB's approach. In determining your approach to the negotiations—that is what we are talking about—with the commissioner, will you be driven by the amount of money that you can make available, telling the commissioner that they must work out what they can deliver for that, or will you simply challenge the commissioner's assertion that they need a particular sum of money to do what they think is necessary? After all, they are responsible for publishing the plan of what they have to do. How does the balance of the negotiations work out? What are the respective roles of the SPCB and the commissioner in driving towards an agreement on the budget?
With all due respect, that is like asking, "How long is a piece of string?" The rough parameters are set out in the financial memorandum, so we know roughly what ballpark we are operating in. It is then for the commissioner to propose a budget that they can justify and which we accept is justifiable. When we have agreed it, the money will come from the corporate body's budget and then our budget as a whole will go to the Finance Committee, so there are checks and balances in the system.
But which approach do you think you will take? Will you say, "This is the money that is available," or will you respond to what the commissioner says they need? I have had such arguments too many times to be readily convinced that these things are straightforward. They are not. Things always get difficult when money is involved.
It depends on the proposal that is made. If the commissioner asked for more than we thought was reasonable, that might evoke one response, but they might ask for less than we thought was reasonable, which might evoke a different response. We cannot—
So you can envisage circumstances in which you would say to the commissioner, "Please take more and do more."
I do not think that it would be couched in those terms. It is not for us to say what the commissioner should do, but it may be for us to say, "Your plan is to do such-and-such. Do you think that you have costed it adequately?" It would be couched in that way. We cannot compromise the independence of the commissioner.
This year, one of the commissioners came forward with a programme that the corporate body thought, in monetary terms, was too ambitious—the corporate body thought that the commissioner probably could not achieve it. All that the corporate body could do was provide a note of caution to the Finance Committee. The corporate body felt that that was the extent of its powers. If it had greater powers, it could ask the commissioner to reconsider the matter and come back with more formal proposals for debate so that a conclusion could be reached on the project.
That brings me right back to the beginning. You think that the corporate body needs more powers to control and direct what the commissioner does.
A commissioner's budget should be agreed at the point of discussion between the corporate body and the commissioner, not at a different point when we have sent our corporate budget to the Finance Committee. We think that it is more helpful to agree the commissioners' budgets before we present our entire budget to the Finance Committee.
I ask Huw Williams to clarify the example that he gave. You talked about a commissioner who came forward with a special project. Why was the corporate body asked to sign that off? If a budget had been set for the commissioner, why did they have to come to the—
A budget had not been set.
The discussion was about setting the budget.
Was it about the overall budget or a budget heading?
It was about the overall budget. On one aspect of the budget, we thought that a proposed programme was not deliverable within the proposed timeframe. We asked why the commissioner had budgeted for something that they could not deliver and asked for a justification.
So there was no overall budget to start with. That was the first attempt. The commissioner came to the corporate body saying, "This is what we want to spend and this is what we want to spent it on."
Yes.
I will ask you the same question that Stewart Stevenson asked, but I will put it differently. The backdrop to the question of independence and accountability is the Paris principles. We are learning about those ourselves, but they are the international standard for human rights commissions. Is the corporate body satisfied that, in broad terms, it has met the Paris principles?
Well—
You do not have to answer that, but we have to make you aware that that is the context. If the corporate body is taking a view about budget setting, I would like to know whether it is satisfied that that can be done within the Paris principles.
That was one of the arguments that the commissioner for children and young people made to the Finance Committee. Obviously, we have to take the Paris principles into account, but we must also remember that the Parliament has to approve the use of public money for the commissioner's functions.
But these matters are not mutually exclusive. You are arguing, "Our body will be accountable for expenditure, because someone has to be." I have no difficulty with that, but I suppose that it all comes down to how one interprets the Paris principles. My question is whether, in taking that particular view, the SPCB is satisfied that what it is doing is in the spirit of those principles.
I wonder whether we could write to the committee on that question, because I do not want to give an unequivocal response right now. I would rather give the committee a written, reasoned response that sets out our position on the matter.
That would be helpful.
I have a more specific question about finance. Is the commissioner's proposed operational budget of £1 million a year realistic?
We are concerned that, in comparison with the budgets for other commissioners, it might be a bit tight. For example, the Scottish information commissioner's budget is £1.4 million and the commissioner for children and young people's budget is about £1.3 million. I think that £1 million will be adequate in the first year, as it will not have to cover a full year; however, it might prove somewhat restrictive in subsequent years.
In order to make cost savings, the SPCB will certainly try wherever possible to share support services such as information technology. Obviously, we cannot provide any estimates on such matters at the moment, but it will really depend on the location of the office and the number of staff to be employed. However, I should say that we are grateful for the SPCB's powers of determination over such matters.
It has been suggested to the committee that a £1 million budget is insufficient. For example, the Northern Ireland Human Rights Commission is already seeking additional resources. Should we consider that example in our deliberations?
It helps to examine the experience of comparable posts elsewhere. For example, when we compared the budget for the proposed Scottish human rights commissioner to those of the other commissioners in Scotland, it seemed a bit restrictive.
That is helpful.
I feel that the budget is lamentably low. The Finance Committee highlights the fact that staff salaries will amount to £175,000, which I presume will include the chief executive's salary. In comparison, the chief executive of the Mental Welfare Commission is paid £106,000; the chief executive of the Scottish Commission for the Regulation of Care is paid almost £100,000; and the chief executive of the Water Industry Commission for Scotland gets more than £80,000. Given that £175,000 is being allocated for staff salaries, it appears that, once the chief executive is paid his or her salary, there will be only about £75,000 left to do everything else. I simply do not think that that is feasible. Moreover, I find it bizarre that the commissioner's salary has been set at £75,000 right at the beginning of the process.
Staff salaries come to about £350,000.
We thought that it should be a bit more than that. We estimated that it should be closer to £388,000.
I do not disagree about the post of chief executive; it would be an unnecessary luxury.
When we set the salary level, we took into account what we do with our other commissioners. This will be the fifth commissioner that we have appointed.
With our other commissioners, we commissioned the Review Body on Senior Salaries to consider whether the salary levels that have been set already were appropriate. Based on what it said, the ombudsman's salary was increased, but the others were felt to be within an appropriate range. The SPCB has not yet determined the salary level for the human rights commissioner.
Perhaps we can explore that with the minister.
We have information about the current commissioners' salaries. The Scottish public services ombudsman earns £84,477—that was the salary that the Review Body on Senior Salaries thought should be uprated. The Scottish information commissioner earns £77,722, and the Scottish commissioner for children and young people earns £74,520. Therefore, the salary for the new commissioner will be in the same ballpark.
Was any account taken of the fact that the role is mostly promotional and awareness raising? The commissioner will not instigate legal proceedings, so additional costs for legal advice for public authorities and the commissioner will not come into the equation.
The promotional activities will be largely covered by the budget for salaries in the same way as they are for the Scottish commissioner for children and young people, which is an equivalent role.
That would not happen as a matter of course, because there is no duty to intervene, and that might be reflected in the amount involved.
That is correct.
What would the procedure be if, during the financial year, the commissioner were to come along and say that it was clear that the budget was going to be overspent?
There is a central contingency fund that all commissioners can draw on if they need to, so it would depend on the nature of the overspend. If it was seen as something that could legitimately be met out of the contingency fund, there is money to cover that. If it was something that we thought could be dealt with differently, we would advise accordingly.
Which budget would that come from? Would it come from the SPCB budget?
Yes.
Would you get an increase in funding? Is there a tacit agreement with the Executive about that?
We were quite attracted to the Finance Committee's recommendation that, if it turned out in practice that the budget was too low, the Executive should meet any shortfall if it could be demonstrated that that had come about because the initial budget was inadequate.
Would that be done by giving you the money to pass on?
No. It would be a case of the Executive underwriting any potential overspend as a result of not having estimated the budget accurately at the outset.
So it would not come out of the SPCB budget.
It would do at the moment. The way things stand, we would endorse the Finance Committee recommendation that, if there was an overspend because the initial budget had been inaccurate or inadequate, the Executive should meet that shortfall.
How much attention would be paid to the reasons for the overspend? If the budget is found to have been inadequate, who decides that?
It is difficult to say.
We would look first of all to the commissioner contingency fund, which is there for unforeseen events. It is a capped amount; it is not an unlimited amount of money. Should we be unable to meet the shortfall from that contingency fund, we would have to look in the SPCB's overall budget, the purpose of which is to support the Parliament. If we could not meet the shortfall, we would have to put forward a supplementary estimate to the Finance Committee, part of which would have to include a justification as to why there was a shortfall and what the reason for the increase was. That would be a matter for debate with the Finance Committee.
That is excellent. Thank you.
At the end of the SPCB submission are a number of comments that I think we have already covered. For example, we have talked about the chief executive and staff and about the role of the accountable officer.
We are looking at the pros and cons of co-location and how it could be accomplished. Audit Scotland is conducting a review of SPCB governance and we have asked it to extend its remit to consider options for sharing services or co-location among commissioners. If the GB commission is to have a presence in Glasgow, there are strong arguments for co-location, because the two commissioners will have to liaise closely. Obviously, such things depend on what is available at the time, what looks like being best value for money and where it is sensible and practical to share resources. Those considerations will all be taken into account when decisions are made. I hope that that answers your question. It is quite an amorphous thing that we are dealing with when it comes to the practicalities, but we are actively looking at sharing services and at co-location, and there would be quite a strong argument for the co-location of our commissioner and the GB commissioner, as they will have to liaise closely.
Most of the SPCB-related issues have been covered.
The SPCB takes the view that the accountable officer should be the commissioner. However, the bill says:
No. Those are the SPCB-related items. The SPCB submission also raised questions on areas that are outwith its remit, one of which concerns section 9, on report of inquiry. Our question is, what will happen to an excepted inquiry report? The issue is one for the committee to consider.
Thank you. We have no more questions. We thank you for your evidence. The committee would be pleased to receive comments from the SPCB on the Paris principles. One of the debates that we are having is about the balance between accountability—about which Nora Radcliffe rightly spoke—and the independence of the commissioner. We need to ensure that the right balance is struck. Effectively, the SPCB will act on behalf of the Parliament on the matter. We want to know that, broadly speaking, the SCPB is satisfied that its determinations are in line with the Paris principles.
We will write formally to the committee on the matter. I thank the committee for the opportunity to give evidence today. The SPCB appreciates that.
Thank you.
Meeting suspended.
On resuming—
Our second panel is Robert Brown MSP, the Deputy Minister for Education and Young People, and his team of officials from the bill team, who are Brian Peddie, Ed Thomson and John St Clair. I welcome them and thank them for appearing before the committee this morning. I thank the deputy minister for the detailed letter that he has given the committee. Although we have not had the chance to take it all in, it is a thorough and detailed response, which is very helpful to the committee.
If I may, I will take a little bit of time on my response to the question. As the committee rightly says, that is the core question and I have a variety of things to say by way of response.
That was helpful, but I would like to break it down a bit. You highlighted some useful examples—I have to say that, in evidence, we have been a bit short of examples. We are trying to make the bill real for the people whom we represent, so examples are helpful. The issues that you mentioned are all issues that elected members talk about and members act as advocates on behalf of people who are affected by those issues. One question that arises is whose job it is to advocate on behalf of some of our most vulnerable groups.
The commissioner could become involved at the request of the committee or might regard something as part of their workload. Obviously, in sorting out their workload, the commissioner should know about and keep up to date with the forthcoming legislative programme. Of course, not every bill has significant human rights implications, but many of them do. The primary point at which the matter will come into focus and the human rights commissioner might have some input is when the committee is considering its stage 1 report on a bill, after there has been some consultation. It is important for committees to get some guidance not so much on the decisions that they make on the issues but on the issues that arise. We in the Parliament have our own perspectives on particular bills, but we are not experts on human rights issues and we are not expert lawyers.
The issue is important. To give an example, the protection of children is a live issue. In considering the creation of risk of sexual harm orders, the committee felt that there were fine balances to be struck. You may not be aware of this, but chief constables will be able to apply to the court for such an order without having conviction information, if certain tests are satisfied. That is a strong power, so we were concerned about the human rights impact on individuals who are subject to such orders. I do not want to be bounced into decisions on such matters as a result of the human rights commissioner declaring that, in their view, a certain decision would be a breach of human rights. I feel strongly that the commissioner should not have that role.
We must be careful about what we say on the issue. I do not like the use of the word "declarator" in this context. Nowhere in the bill does it state that the commissioner will have the role of declaring the law. As I tried to make clear earlier, that will certainly not be the commissioner's role. It is absolutely clear that the courts declare the law and Parliament makes it. However, Parliament should not be too worried about authoritative-sounding opinions. We employ experts of all sorts in different ways—we have committee advisers and other people who give views. We also have screaming headlines in the press from time to time. In the overall scheme of things, an authoritative view from the human rights commissioner will not bounce MSPs into decisions that they would not otherwise make.
I presume that the Scottish Executive is satisfied that the commissioner will have general public support. Some of the issues that you have raised are important to many people, but others are exclusive and only people who operate in certain circles will be interested in them. Have you given any thought to the general public's reaction to the creation of another commissioner on an issue with which many people already deal, and with a potential cost of more than £1 million a year?
People will have a range of views, as the MORI poll that was carried out for the committee indicated. No single view emerged from that poll—if I recall correctly, the most common view on what human rights meant was shared by only 17 per cent of respondents. However, the poll showed that there was fairly wide acceptance of the importance of human rights, especially for people at the bottom of the scale, by which I mean people who live in deprived or vulnerable circumstances. Oddly enough, the greatest acceptance of the importance of human rights was among working-class people, as the poll defined them. That seemed to reflect the fact that, more generally, there was considerable understanding of what, broadly, human rights legislation is designed to do.
In a previous answer to the convener, I think that you mentioned the standing and authority of the person who is appointed as the commissioner. I want to explore that. To me, the human rights commissioner will probably be the most important commissioner in Scotland, so surely we must make certain that that person, whoever they are, is highly respected and that there is no doubt about their ability, so that people will listen when they make a pronouncement. Bearing that in mind and taking into account what you have said about the legal aspects of the commissioner's role, can you say whether the person who is appointed will have to have a legal background and be able to demonstrate considerable expertise?
That is fairly likely, but we have not put in the bill that that is a requirement of the job. People who are qualified and have standing as solicitors, advocates or members of the judiciary would all count as having a legal background, as would certain academics and people who come to the law from a different perspective. We should not necessarily rule out people who have no legal background, but it is reasonably unlikely that that will be the direction of travel. The analytical requirements of the role require such expertise to be brought to bear. I have no doubt that when the corporate body works out the job specification, such matters will be given further consideration.
You would agree that we must ensure that, whoever the person is, their opinions cannot be in doubt. They must be someone of serious expertise.
I would not phrase it in quite that way. They would certainly have to be someone who would be listened to. That is the bottom line. They would have authority not just because of who they are but because of what they say. They would need to build up a track record of being reasonable, sensible and right. That, too, will be important to the quality of the appointment that we make.
At stage 1, we are determining whether the commissioner might add value, which is fundamental. So far, the evidence on that has been sketchy. You have outlined some definite ways in which you think that having a commissioner would add value. You spoke about the task of analysing whether bills were compliant with human rights legislation. On many occasions, the convener has made the point that the Parliament has not yet passed a bill that has not been HR compliant. A commissioner has not been necessary to achieve that.
It is clearly the role of elected politicians to make many of these decisions. However, the Justice 1 Committee and the Parliament are not making decisions on the ground about local authorities, quangos and a whole range of things, although there may be a duty of accountability, through ministers, or to councils on those matters. As a wide range of bodies of that kind is covered by the duty under the ECHR, considerable issues could arise and the ability of the commissioner to be proactive is important.
Is there not a disadvantage in taking such an holistic approach? You are almost sidelining the very people who have expertise and who have been working on human rights for many years, who could make the situation much clearer. You have provided a list this morning. How many commissioners do we need, if they are going to delve in there, and where is the duplication? Who will have the final decision if another commissioner may challenge totally what the human rights commissioner says? Are we not creating more problems and making the law less clear?
No, I do not think so.
Are you not almost sidelining or bypassing the expertise that is already out there by creating a commissioner?
The point that I was trying to make is that there is perhaps not as much expertise as we would like out there. The commissioner will provide a fulcrum for producing more of it. It may well be that not all the commissioner's activities, such as providing human rights training for public bodies, will be done in-house. Nevertheless, the commissioner will provide a centre of expertise, which is very important. I do not accept your proposition about the sidelining of expertise; in fact, there will be a development of expertise in consequence of the creation of the commissioner.
I want to pick up on your development-of-expertise policy. You said that you would not sideline the existing expertise of the many non-governmental organisations out there, or of the other commissioners. Rather than spending this £1 million budget on the creation of a centralised commissioner, would it not be more effective to spread that budget over those non-governmental organisations and commissioners to allow them to staff up and get the expertise or the kind of advice that the Parliament's committees would get from people who are steeped in human rights issues from all angles? Would not that be preferable?
That is the point that Lord McCluskey has made. He is one of only three people involved in the original consultation who were opposed to the concept of the commission. Lord McCluskey seems to come from a rather different strand on human rights with a definite view on the role of the courts in such matters, which I do not think fits with the views that we got from anybody else.
Right, but I return to the point that, if the expertise is to be developed, should we not fund those people to develop human rights expertise rather than rely on the central point? If the children's commissioner is an advocate for children, should they not be up to date on children's human rights? Should not all the other commissioners be up to date? Should not the non-governmental organisations be funded to bring their case properly rather than through a third party? Should they not have more than a sketchy view of things? That is another way of looking at it. Lord McCluskey had a particular way of arguing it; I am asking you whether that would not be more effective.
No, I disagree fundamentally on that point. Apart from any other issues, we have tentatively suggested that the human rights commissioner might have a role in providing expert advice to the other commissioners. As I have said—and as you rightly say—it is important that those commissioners have an appreciation of and mainstream human rights in their work as well as they can. However, that is not the central requirement that is placed on the information commissioner, the standards commissioner or the public services ombudsman, for example. Human rights are incidental to their work; therefore, there will be added value in the existence of the human rights commissioner, to whom such matters will be more central and who will be more impartial in handling human rights than some of the other commissioners with their slightly different roles.
Could not the public services ombudsman's function be increased to fulfil that role? She is already considering some human rights issues.
Yes, I saw the evidence that the public services ombudsman gave in that regard. She made the point that, in one or two other countries—which perhaps started from a slightly different point—the role of the ombudsman service has been expanded to include human rights. That is not the usual remit, but it leads us into the territory of the ability to support individual cases. The crucial difference between the public services ombudsman and the proposed human rights commissioner is that the public services ombudsman is very much case-driven. Her role is to deal with maladministration in individual cases and to take things forward in that connection; she does not have a sectoral role in the way that the human rights commissioner will have one. Nor, indeed, is she required to consider human rights issues specifically.
Was that possibility considered prior to the bill?
Consideration was given to a number of options. I was not in post at that point, so I do not know the content of the earlier discussions.
Some consideration was given to the fundamental question of the role of a commissioner, the need for a commission and whether a role could be given to other bodies. It is probably fair to say that the roles of the other commissioners and the ombudsmen were not all fully formed at the time that the proposals in the bill began to be developed. I would not necessarily claim that there was a full, in-depth analysis of the option of giving the human rights remit to the public services ombudsman; however, some consideration was given to whether, instead of having a free-standing commissioner for human rights, the role might be given to the ombudsman or indeed to some other body.
Among the questions in the first consultation was something along the lines of whether there were other ways to fulfil the function of a human rights commissioner. That is exactly the point with which you began. One of the main purposes of the consultation was to find out the public response to that question. For what it is worth, from my reading of the evidence, Alice Brown's view—even having an interest in where this goes—was that the preferred method was to create a human rights commissioner.
She also said that there was some advantage in having a one-stop shop and putting all the functions with her.
I accept that entirely. To some degree she has come to that conclusion after having amalgamated a number of ombudsmen's roles that were previously dealt with separately. She has experience of that. The point that we have made throughout is that there is a complementarity—if that is the right word—between the roles of different bodies here. I would certainly wish and expect, as I imagine the corporate body said in its evidence, for there to be as much co-operation between the bodies as possible and as much common use of back-office services and so on as it is reasonable to have in the circumstances. That is entirely reasonable. Alice Brown has developed a number of IT activities, in which she is trying to interest other commissioners. That has gone forward in some respects. It is all good stuff.
We have dealt quite thoroughly with this question, but I have one point to raise in conclusion. You say in the opening paragraph of your evidence to the committee that
As you rightly imply, human rights is at the heart of the devolution settlement. The Human Rights Act 1998 is part of the Scotland Act 1998 to all intents and purposes. We therefore have a much higher profile for human rights in Scotland than in the UK or in other countries.
I start with the modest observation that Scotland has fewer politicians per head of population of any country in Europe—34, which compares to 42 in England.
I am not convinced that that observation will attract public acclaim.
It is merely an observation that those who claim that politicians need additional support from a commissioner such as the one that we are discussing might care to consider.
Our officials have had discussions with officials in London. The view that is laid out in my letter follows logically from the scheme of the Scotland Act 1998. Not to beat about the bush, the argument is a bit tortuous. It goes back to the definition in the Human Rights Act 1998 of victims being people who bring actions of one sort or another. The view that has been taken by our officials—in agreement with Westminster officials, I thought, although I might be wrong—is that, because that act is linked with the Scotland Act 1998 in terms of how the Parliament is set up, we cannot give our commissioner the power to raise individual cases.
That was quite a wide-ranging answer, minister. Later, one of my colleagues will develop issues relating to the power to enter premises.
Are you talking about the Human Rights Act 1998?
No, I am talking about the Scottish Commissioner for Human Rights Bill. I apologise for my lack of clarity.
No, I think that I allowed my mind to wander further than I should have from this rather complex argument.
Perhaps, but perhaps not. The subject is complex and I think that we do not yet want to restrict your wanderings, although we might later.
I will start with the policy. The concept that we have proceeded with from the beginning has been that we have not been keen to go in the direction of allowing the commissioner to take action in their name. We did not see that as being the commissioner's primary function. It is perfectly true that, in some other jurisdictions—Northern Ireland, for example—a substantial case-work function has grown up around the human rights commissioner, perhaps for local reasons. However, our decision was made for two reasons. First, an expansion of the remit would have budgetary implications; secondly, there are other bodies that are relevant in this area, including the courts, as Lord McCluskey quite rightly pointed out, whose role it is to be active on these kinds of issues.
It was debated on Monday.
In response to the amendment, the minister, Meg Munn, said:
Let me give you an example, minister, to test whether I understand this correctly. It is perfectly possible that I do not. In your opening remarks, you referred to some of the cases that the commissioner might take on. One of those was a teacher being falsely accused of improper conduct in relation to a pupil. Under the bill, the Scottish commissioner for human rights could make inquiries about the general framework and could report on whether matters were being conducted in an appropriate manner that was consistent with human rights. However, that would do nothing to move forward any individual's case unless the local authorities were to take action in relation to teachers being allowed to teach, and so on. We are talking about highly sensitive and complicated things in which there would be great variability in instances that might occur.
Even in the Westminster context, the likelihood of the GB commission supporting a large number of individual cases is not that great.
Allow me to clarify, minister. Although I am referring to the delivery of justice to individuals—which is what we have to ensure—I envisage that in the sense of the GB commission taking action on the general issue.
I accept that entirely; however, we are talking about the support or the institution of individual cases and, frankly, I cannot conceive of a situation in which the GB commission would support the taking of such an individual case in Scotland—which, you will accept, is entirely a matter of devolved Scots law with regard to education and schools—or, indeed, in which the Scottish commissioner would regard it appropriate to consent in that particular context.
So would it be a matter for Alice Brown to deal with? That brings us back to her assertion that she is involved in human rights and should be given the additional responsibilities to—
Her issue proceeds from maladministration and her role is slightly different. She might have a role in that matter, as might others; however, I suspect that, in the sort of case that you are talking about, a legal decision by the court would be the end of the matter, failing legislation to put the matter beyond doubt. In relation to legal aid, many trade unions support their members in taking legal action by paying for lawyers. I do not know the position of the teachers unions, but support of that kind might be available. That is a broader issue.
You used that example yourself in your preliminary remarks. It is still unclear to me how the commissioner will achieve justice for the individuals in the situation that you described.
I was talking about that in the context of, among other things, the commissioner's power to raise awareness and to hold inquiries. It would be perfectly possible for the commissioner, if he or she saw fit, to hold an inquiry not into the practice of a specific council but into the practice of councils generally in matters of that kind and to produce a report with recommendations, which the appropriate bodies would or would not take on board, as they saw fit. That would be a contribution of a powerful kind both to the debate and, perhaps, to parliamentary legislation if that was thought appropriate. It would be one remedy or way of taking things forward. Nobody is suggesting that the human rights commissioner or anybody else could solve all the problems by their very existence or that they would have the power to take action in every conceivable situation. That is certainly not the case.
You thought that that example was important enough to include it in your preliminary remarks.
Yes.
Does it matter whether we have a huge debate if, ultimately, there is no process by which the individuals whose human rights we have identified as being transgressed can get a remedy?
There are two points to make on that. First, as you have rightly identified, there is redress through the courts, if that is appropriate.
And if that is available.
Just a minute. There may be issues about support, the applicability of legal aid, and so on, but there is redress through the courts. That is the primary instrument—it always has been—for the vindication of people's legal and human rights.
Are you ruling out the Scottish commissioner in such circumstances or, in the long list of examples of circumstances that you gave, asking the Westminster-created commission to act?
It is inconceivable that the Westminster commission would take such a request on board: doing so would not be part of its functions. I accept that, because of the relationship between the two bodies and the two legislatures, there is a difficulty with squaring the circle. In the situation in question, before action could be taken, the power for the victim's interest to be represented would have to be given. The primary issue for the committee and the Executive is whether we want to go in that direction. The Executive's advice is that we do not, because we think that other remedies are available in such circumstances.
Do you mean that a view has not been expressed about devolved competencies?
Yes.
We have had extensive discussions with officials in the UK Government. It has not expressed such a view to us and I was not aware that it had expressed such a view to the committee. I would find that rather surprising, but I do not know what was said to you.
I want to be cautious and I was careful to say that the capacity in which a view was expressed to us was not necessarily of the same quality as the capacity in which a view was expressed to you. I acknowledge that absolutely. However, committee members were left uncertain about what the position was.
The Executive is subject to the decision of Parliament in these matters. Parliament can take a different view from the Executive on where it wants to go. The policy objective and the advice that the Executive is giving the committee is that we do not want to go in that direction, partly for the reasons that I have set out about overlap and duplication and partly because there would be budgetary implications, which we all have to be cautious about in these flattening-financial-trajectory times, if I can use such a horrible phrase to support my position. If the committee and the Parliament take a different decision, that aspect will have to be revisited.
I just want to be clear about this, although I think Stewart Stevenson has clarified the point. Our discussion with officials was purely informal. We are not implying that any status is attached to our discussions. I just wanted to nail that down.
Leaving aside the phraseology of the Equality Bill, which we know is not finalised, I understand—and I look to Meg Munn's statement to the Commons on this matter—that it would be possible to deliver the objective if it was specified in our bill in terms of section 104 of the Scotland Act 1998. I make no claims to be an expert on the technicalities of that. Whether it is the way forward might need to be the subject of further detailed advice, but that is what the Westminster minister said.
Speaking as a lawyer, as far as officials are concerned, the unity of advice that we have received so far is that we cannot change section 7 of the Human Rights Act 1998 by way of an act of the Scottish Parliament. The clear advice that we have also been given is that we cannot be confident that it could otherwise be done by a section 104 order. Section 7 looks like a substantive measure in its own right; it does not contain provisions that are necessary or expedient in consequence of something that the Scottish Parliament has done. I am not saying that section 104 has not been stretched almost to breaking point up until now, but that we cannot be confident that we can effect the change in that way.
Certainly, it is no longer possible to get anything into the Equality Bill to cover the issue. I return to the point that—
I am sorry, minister, but I want to be clear about what John St Clair said. My understanding is that if we decided to change the Human Rights Act 1998 to give Scotland the equivalent power for its commissioner that the GB commission for equality and human rights will have, the change would have to be done by way of Westminster primary legislation.
That is not the only way in which it could be done. It could also be done by an amendment to schedule 5 to the Scotland Act 1998 through an order in council. That is quite a big constitutional measure to take, however.
And it still comes under the primary legislative competence of Westminster.
I agree; it is not within the competence of the Scottish Parliament to do that.
Before we come to a view on whether the change is desirable, it is helpful to understand the legal technicalities of the issue.
The matter is extremely technical; I am learning as we go along—learning on the job, as it were.
My question appears to be more straightforward; it is perhaps also less controversial. Unlike the Westminster bill, which requires the commission for equality and human rights to prepare a strategic plan and to consult on it in advance, the Scottish commissioner for human rights does not appear to be required to prepare such a plan. Is the minister prepared to look further at the issue? Why did we not take a similar approach to that which was taken at Westminster?
My understanding is that the requirement emanates not from the human rights perspective but from that of the other areas of discrimination for which the commission for equality and human rights will be responsible. The requirement on the commission follows on from the practices of the current commissions—the Equal Opportunities Commission and so forth—which it is to replace.
The minister referred to section 12(3), which includes the wording, "form and content". If we seek to have a commissioner who is independent of the SPCB, is the use of the word "content" appropriate? I do not envisage the corporate body flexing its muscles unduly in this regard, but if "content" is used, it appears that the commissioner will be pretty much under the thumb of the corporate body.
When I was on the other side of the fence, as a member of the corporate body, I had responsibility for dealing with the commissioners. That was the sort of concern it had. I am perfectly certain that the corporate body will be restrained: "content" does not mean what goes in; it means the subject matter that goes in, if you see what I mean. It is about the things that have to be included, rather than things that are left out. It is not about what the report itself says.
Section 18, on interpretation, does not provide a definition for "content", but I am sure that good faith will prevail.
What I have said this morning is also relevant, if there is ambiguity. This phraseology is used in other legislation and it has the overall implication that I have described against the overall context of the bill.
I accept that entirely, but I am sure that you also accept that it is up to committees to work from a zero base and to question previously accepted nostrums for their continuing utility or otherwise.
I would not expect anything else.
Lord McCluskey questioned the inclusion of human rights beyond what had been legislated for and the extent to which human rights, as defined in the bill, include things that are not capable of enforcement in law. Might the bill's being almost a blank cheque carry with it the danger of a loss of focus on the key issues that are essentially entrenched in law?
It is fair to say that we do not have an open-ended bill, but the other conventions that you mention form, to some extent, what might be described as background flavouring in the legislative approach taken by the courts. As I understand it, the courts are entitled to have regard to some of those other conventions in instances of ambiguity and to help them in interpretation or in deciding on the approach to be taken. There are obviously specific issues with regard to visiting international human rights committees of one sort or another, which are entitled to call upon us to assist in their endeavours in that regard. That is a specialist sort of area and is pretty self-explanatory.
It comes back, presumably, to the plans that the commissioner lays before Parliament. Will those plans take account of what weight those considerations will have in the future work programme?
That might be the case, although I am not altogether certain that the plans would go into that level of detail, as opposed to saying, "We're going to do an inquiry into X, rather than Y." However, that may be an aspect that should be considered. I would be surprised, to be quite honest, if the workload of the commissioner were significantly determined by the existence of the right to look to other international instruments of one sort or another.
Will you, at some point, give the committee a list of the relevant human rights conventions that would come into play?
I thought that that had been done, but if it has not we are happy to do that.
Primarily, the commissioner will deal with the Human Rights Act 1998. We have been given some examples to do with the convention on torture, but there are other conventions and we need to know exactly what powers we would be giving a commissioner and what areas might be covered.
I am happy to do that. I think you will find that the European Court of Human Rights and the Scottish courts probably have some regard to those other conventions when they interpret human rights legislation and the ECHR itself. I am not an expert on that, but I think that that is probably the case.
That is accepted but, for our purposes, we need to be clear about the situation.
Would it be helpful for you to have a list of the international human rights conventions that the UK has ratified? That is what the bill refers to.
Yes, and a broad description of what they are about.
We can provide that. Would you like copies of the conventions or would you be satisfied with just a summary to start with? I warn the committee that some of them are lengthy.
Let us protect the trees.
I think that we are all agreed that a summary of the broad issues would be fine.
We will provide that.
Section 14(2) says:
I think you missed out the qualifying phrase at the beginning of section 3, which is:
With regard to the direct incorporation of the ECHR into Scots law, is that not already being considered? Is that not being automatically taken into account in any review?
Yes. With regard to the incorporation of the ECHR, it should be noted that its provisions are set at a fairly general level—a prohibition against torture, a right to privacy, a right to security of possessions and so on. The meaning of all of those elements is capable of indefinite development because of changing social conditions. We are not dealing with a static society. As society changes, views about those issues and about the top standard in terms of human rights change as well.
My question was whether bodies such as the Law Society of Scotland, the Scottish Law Commission, the Parliament and the Executive are already examining the role of public bodies where the ECHR comes into the equation.
You are right to say that a series of bodies are examining the issue, but you would not postulate that we should have the Parliament, the courts and nothing else. A series of public bodies carry out administration: local authorities; in a slightly different context, quangos, and so on. There are individuals to inspect, to monitor and to perform various other tasks in that connection.
It comes down to a value judgment.
Absolutely.
In reply to questions from both Margaret Mitchell and Stewart Stevenson, we established that you are content that the commissioner will not have an individual inquiry function. Is that correct?
Yes.
Some of the witnesses from whom we have heard—for example, representatives of the Disability Rights Commission—have suggested that that is one of the pitfalls. In the wider public arena, there may be an expectation that the commissioner will have an individual inquiry function. How do you respond to that concern?
There is a comprehension aspect to the issue. As the bill progresses, the commissioner is appointed and so on, we will get a clearer view of the commissioner's role and his or her central duties. Human rights is a term that has a wide connotation. When I was practising as a lawyer, a significant number of the clients who came through the door said that their human rights had been breached. In 99 cases out of 100, it was just a phrase—they really meant that they felt that injustice had been done in their case. Whether there was right or wrong on their side is another matter, but issues relating to the ECHR were rarely raised. There needs to be an educative process in that connection, so that people can understand the position.
Given that she said that she wanted to keep the matter under review, will the Executive consider doing that?
The Parliament rather than the Executive will want to keep all such matters under review. The Finance Committee has had concerns about budgetary levels, sharing of services and the location of commissioners' offices, which we have reflected in the bill. It is entirely right for the Parliament to take an overview of those issues as they affect all the bodies, which, after all, are set up under the Parliament's authority. The Executive might have a view to contribute, but we would prefer the Parliament to take the lead role in that process because of the independence of the commissioners.
Do you think that there could be a problem in that someone who thinks that they have had their human rights breached and goes to the commissioner that the Parliament will establish could be told that they should go to their lawyer, whom they should have gone to in the first place?
Perhaps. The commissioner will have an advice function, so they could support individuals by providing them with advice. However, the point has already been made that limited resources will go into that, so the commissioner's ability to do that sort of thing will be limited. Whether people in remote rural areas can get access to a lawyer with human rights expertise and, if they cannot, how we can go about filling that gap might be more of an issue. In that connection, there might be a number of ways of meeting need, without getting the commissioner involved in the provision of financial or other support to individuals who want to take a case to court. However, in the long term, we rule nothing out; we would naturally wish to keep that issue under review as the system develops.
That is helpful. We will come back to resource issues later.
I want to clarify what you were referring to when you mentioned the commissioner's advice function.
Under section 4(1), the commissioner may, among other things, "provide advice or guidance". The terms are general. There is an issue about how the commissioner will provide advice or guidance and the extent to which it will be available to individuals. The experience of the Northern Ireland Human Rights Commission has given us some information on what happens when a commission body is given that additional function. I think that I am right in saying that evidence on numbers was available from the Northern Ireland commission, which was helpful in getting a taste of things.
I will answer that. What is envisaged by the text of section 4 is that the commissioner may provide general advice to the public rather than individual case advice because it would be inconsistent for the commissioner to investigate only sectors, but to give advice about individual cases. We do not think that section 4(1)(b) could properly be read as giving the commissioner such a specific role.
I stand corrected.
Mary Mulligan is essentially correct in the sense that if a member of the public goes to the human rights commissioner and says that they think they have a complaint, they will have to be sent away.
That is right. The commissioner will not have the facility to support such activity. That said, an individual complaint might lead into consideration of an issue that has general application. We would not want to rule that out, so the commissioner would have to be open to receiving information in some way. The commissioner and their chief executive would have to give a bit of thought to the best way of ensuring that that was possible.
Such a case could be considered to be at the margins, because there is a general understanding that public bodies have a duty to be as open and helpful to the public as possible. An individual would not immediately have the door closed on them, but the commissioner might point them in the right direction. It would go no further than that; the commissioner would not get involved in the detail of an individual case.
I want to be absolutely clear about what constitutes a Scottish public authority, in relation to inquiries. I realise that that goes back to the Human Rights Act 1998. Would the private company Kilmarnock Prison Services fall within that definition? I choose that company not for any particular reason, but just as an example.
Are you opening up a new subject area?
I am just asking whether inquiries could be conducted into that company. I will take your advice, convener, on whether this is an appropriate point at which to raise that issue.
Before we move off the specific point of the advice function, I think that we need to discuss the issue further so that it is clear to us where the dividing line lies. When a commissioner is created, it is inevitable that members of the public will queue up to get advice or assistance. What will be the mechanisms for dealing with that?
I come back to the general duty
Judging from what you have said, however, there could be some back-door ways. We need to be clear about that. We will come to the question of how priorities are determined. The human rights commissioner will, inevitably, get letters from members of the public and will write back saying, "I can't take up your individual complaint because I don't have the power to do that." However, those individuals may raise issues with a common theme on which, I presume, the commissioner might want to take a view, especially if several hundred people had written to them about it. We need to make clear where the dividing line is. That would be an individual complaint that just happened to be a common issue for many people.
That is what I was trying to get at, and I was trying not to go too far into all this. The commissioner must be open to getting through the door knowledge about general issues of that kind—some of the issues that I talked about before. At the same time, they could get bogged down in hours of discussion with individuals, trying to find out what on earth the issue was, as people sometimes have difficulty in explaining themselves. The commissioner would have to work out the practicalities, but the direction of travel is very clear. We do not want the commissioner to undertake a direct advice function on individual cases, but we want to be able to bring into the organisation knowledge about general issues that might be the subject of general inquiries.
Have you not just underlined the case for giving the funds directly to the non-governmental organisations to which the individual would be directed by the commissioner?
No. We are talking about a subsection of section 4 that relates to only one aspect of the commissioner's general duty. I do not think that our earlier discussion points us in the direction that you suggest.
I accept that entirely. We are looking at the best way of doing things. However, you have just said that approaching the commissioner is not the best way of dealing with individual complaints. You outlined a process in which the commissioner would direct the individual to a non-governmental organisation, which would then look at the general theme of the complaint before referring it back to the commissioner. Why not just let the commissioner run with the complaint in the first place? Going back to the commissioner to explain everything seems to be the duplication that we seek to avoid.
As I have said, there are concerns about how the process will work and what the facilities will be for referral to other agencies. Nevertheless, it remains the case that it will not be the commissioner's job to take up individual complaints or to give individual advice—that has been made very clear.
With respect, we are talking about an individual in whom expectation could be created by this commissioner, who will—
Explaining to the public what they can expect from the commissioner will be part of that office's promotional campaign. In my experience, people are pretty good at finding their way to the relevant bodies in such situations. In some cases they might have to be redirected, but that happens anyway; the advent of the commissioner will not create that problem. With great respect, your viewpoint is not supported.
You do not accept that the creation of the commissioner could produce confusion.
No, I do not. Clarity is available. However, nobody disputes for a minute the fact that there will be overlaps in functions. The potential for duplication exists, but the bill contains a specific duty to avoid that. I fail to see what more we can do to avoid such difficulty other than letting the commissioner explain, as part of the promotional activities, exactly what his or her role is. The same applies to almost anything that we do. When my department advertises for applications to the children's panel, part of our job is to explain what members of the children's panel do—that is endemic to the existence of almost any organisation.
You spoke about the value of the committee's evidence session with the New Zealand chief human rights commissioner. She told us that her commission had conducted an extremely successful inquiry into public transport in rural areas, which had considered the human rights practices of private operators. Would our commissioner be allowed to conduct such an inquiry?
I do not want to give a view on Kilmarnock prison in particular, but my understanding is that private prisons in general would come under the definition of public bodies in the Human Rights Act 1998 because they provide a whole service for the public authority. The same might apply to care homes in certain instances, but not to private care homes, which operate in a different capacity. There will be some grey areas for which a definition will have to be developed.
Are you saying that you would not rule out the possibility of private operators being part of such an inquiry?
As I said, I would not exclude private operators in so far as they provide services to public authorities. John St Clair will correct me if I am wrong, but I do not think that that would necessarily include private transport operators.
The legal definition of public function is problematic. If a body carries out a public function it will come under the Human Rights Act 1998 and hence be caught by the bill. There is authority that large transport companies that cover almost the whole nation are carrying out a public function, so they could be investigated. The mere fact that the function is being performed by a limited company does not mean that it is off limits for the Human Rights Act 1998 or the bill.
It is a bit of a grey area, but the grey area arises not from the bill but from the definitions and powers that are given in the Human Rights Act 1998. That is the difficulty. You might be right to say that there are issues with the definition of public authority, but that is a broader issue, which does not affect the bill.
I apologise for my earlier intervention; I pre-empted my colleague's line of questioning.
I think that it is slightly different in that if, as in the case of Kilmarnock prison, the company carries out a function on behalf of an Executive department, it becomes a public function although it is carried out by a private body and is therefore caught by the bill.
Yes, but the test that removes ambiguity is that the company's core business is to provide that service.
No. We do not have to consider the whole company's core business; we consider the function that is being carried out. The company can count as a public authority even if the public function is only a small part of its business.
The definition emanates from the provision of public services. We have to consider the matter from that angle, not the company angle.
So it is the services, which happen to be provided by a private company, that are within the scope of the bill. It is not the case that, because part of the private company's business is the provision of those public services, its whole enterprise is drawn into the scope of the bill.
We agree with that.
The issue is the services rather than the organisational structures that deliver them.
That is correct. It might help to mention that the Commons and Lords Joint Committee on Human Rights published a report on the definition of a public authority. It gave the example of a security company that ran a private prison and provided security services at a supermarket. The first service would clearly be public, so the company would fall within the definition of a public authority to that extent. The provision of services to a supermarket would not fall within that definition, even though the same company supplied the services. The question involves the function and what is provided.
Is it fair to say that it is not envisaged that all services that are acquired by public money will fall within the definition of public services?
We agree that not all services that are acquired by an authority will become public functions. For example, if a hospital has a contract with a private health provider to run the hospital and to deliver almost all the health services, that is almost certainly a public function. However, a contract to do the electric lighting or to dig up drainage, for example, probably does not involve a public function. Determining to what extent something is a public function is a question of the degree and scope of the function.
Is one of the definitive tests that the service is delivered to an individual real person who has human rights? The electrician who is employed to provide electrical services in a hospital, for example, directly provides services not to a real human being but to an organisation.
The service need not be provided directly to the consumer to be a public function. Quite a lot of functions that are undertaken on the Government's behalf do not impact directly on the consumer, but the citizen has an interest in their being undertaken. Defence is a classic example of that.
However, in defence, provision of the service—let us say the Army, for the sake of argument—is clearly part of the public service; it is controlled and directed in the public service. On the other hand, the transport of tanks is now fulfilled by a private company. At one point, that was clearly a public service. I do not want to become overembroiled in one instance, but you gave that example. Is such transport a public service?
That is a difficult question, because the function is on the borderline between public and private. I would not like to give a view on that—the point could be argued both ways.
The committee is left with a genuine dilemma—perhaps the Executive is in a similar dilemma. How the heck will we resolve what is or is not a public service?
The problem is addressed in different ways in different legislation. All the public functions can be listed, which produces a huge document, or a definition that uses a big word such as "public" can be used. Neither option is perfect and both lead to difficult cases, such as your example of transporting tanks.
I am genuinely concerned about how the definition issue will be resolved when it arises.
I make the general important point that the question does not arise from the bill or the commissioner's role. I understand entirely that the committee needs to comprehend the issues and I have listened to the discussion with interest, but we can do nothing in the bill to clarify or change the position, because it arises from the Human Rights Act 1998. If we talked about the commissioner's right to conduct an inquiry, I suppose that somebody could interdict the commissioner from becoming involved in a subject because the definition did not cover it. I doubt whether anyone would go down that route, but that could—just—be envisaged as a possibility. That would mean that a definitive decision of the court had been made in one of the grey areas that you have talked about.
There is, however, a sense in which the commissioner is protected by the definition in section 17(a)(ii), which explicitly permits intervention where there are "mixed functions".
That is true, but the point that Marlyn Glen was pursuing is that there is an on-going debate about the definition of a public authority under the Human Rights Act 1998. That was the central issue that was raised by the New Zealand chief human rights commissioner.
I take the point, but there are bodies that relate to private care homes, such as the care commission, which could be the subject of human rights investigations. Perhaps that helps. Some of the issues that we are discussing might, incidentally, be taken on board. I do not want to go too far in that direction, but members can see the lie of the land of what I am suggesting. The care commission has rights of inspection of private care homes and other such bodies.
I take the minister back to the example that was given by the New Zealand commissioner: that of transport, and bus services in particular. From what you have said, my understanding would be that FirstBus, for example, would not be covered by the legislation in providing its service, because it is a private company. What would be the situation if FirstBus were to be assisted by a local authority in running a particular service? Would that service be encompassed?
There are two points about that. First, it is likely that the railway bodies will be covered, because they provide a service that is commissioned, in effect, by the Scottish Executive. To an extent, that is also the case with bus companies. FirstBus and other companies would, in certain parts of their role, be covered by the definition of public authority, as there are quality bus partnerships and other arrangements of a more technical nature—with which I do not claim to be au fait—as well as subsidy arrangements, under which people run special lines and so on. Organisations are given licences to run bus services, and the role of public authorities can be regarded on that basis.
The definition of public authority is very problematic, but there is no way of getting round it. The minister is right to say that there is an argument that certain types of private company that run transport services for the benefit of a large section of the public could be classed as performing a public function. We cannot define things more tightly than that. We could not definitely say that FirstBus, for example, was performing a public function. The more locked into the local authority and the more interwoven with its functions that an organisation is, the more it becomes public. It comes back to questions of degree.
It has been suggested that there could be a further complication, in that there might be a difference between the receiver of the service, the customer and those who deliver it, who are employed by the private sector company. Would you foresee any difficulty in that regard?
In terms of their human rights?
Yes.
Let me think about that. I suspect that the employees' rights are probably not covered by the human rights implications.
No—employee contractual rights—
It is a different issue, anyway.
Such contractual rights are not covered by the Human Rights Act 1998.
So that issue would not arise. We are interested in the customer, if you like.
It is as clear as mud.
We could probably go on forever with examples in which we might foresee difficulties. However, the minister talked about being clear about where the commissioner will be involved and what role they will play, so it is useful for the committee to have heard some of those examples.
As I mentioned earlier, there is an alternative way. I refer the committee to the Freedom of Information (Scotland) Act 2002, in which the public bodies are all scheduled and there are specific powers of adding by schedule.
Having discussed that complicated and complex situation for a considerable length of time, let us come to a minor issue and an easy question. Schedule 3 to the bill says that the commissioner has to give 14 days' notice when they visit a public authority or a prison, for example. Everyone whom we asked—although we did not ask everyone—thought that that suggestion was not sensible. Will the minister lodge an amendment to the effect that, if the commissioner wants to enter premises, he will not have to give 14 days' notice but will be able to walk up to the front door, knock on it and say, "I want to inspect"?
We could view that on several levels. The power is intended to be a back-up; it is not intended that the commissioner would normally give 14 days' notice. We would expect those organisations that are covered by the powers to give immediate access to the commissioner. However, the 14-day provision sets a basis for further action if access is not granted.
I am not sure that we expect to hear that torture is going on in our Scottish prisons.
We can certainly look at the point again. However, there has to be a basis for following through on the procedure and taking enforcement action. There has to be a refusal or implied refusal to give access to the premises. There is nothing particularly magical about the 14 days; we can look at that again if the committee has strong views about it. However, we do not expect that that power will be used at all, because we will expect public bodies to give the commissioner access on demand.
What happens when the commissioner turns up and expects to get access on demand, but is told that, under the legislation, he has to give 14 days' notice?
Section 8 is the key. It says that the commissioner may
I am grateful that the minister has outlined how he thinks that the provision will work. I am sure that the committee will discuss that later.
I will examine the wording of the bill more closely. Paragraph 1(1) of schedule 3 refers to section 8(1). The schedule states that in relation to any place of detention, the commissioner may exercise the powers under section 8(1) only after 14 days' notice has been given. In other words, it specifically excludes exercise of the powers in certain circumstances by qualifying the powers under section 8(1) and stating that 14 days' notice is necessary. However, it appears that under section 7, which relates to evidence, and paragraph 1 of schedule 2, on requirements to give evidence, the commissioner can turn up at the gates and say, "I require somebody to give evidence, and to do so now," because the power is unqualified. Is that a fair interpretation, or am I being sufficiently selective as to distort what the bill means?
I had better pass over to John St Clair to deal with the detail. However, my general comment is that although we are talking about powers, in 99 cases out of a hundred, such things will be done by arrangement, rather than by exercising powers. We are talking about how the process will operate in exceptional situations.
The minister has said that the authority of the commissioner, like that of the inspector of prisons, means that doors will open automatically when he arrives. However, if he meets resistance, he will be able to invoke formal powers. Sometimes the resistance may be justified. A building might be being reconstructed and it might be dangerous to give access—that is why there is a notice period. The Executive is open to argument on whether the period should be shortened.
So the existence of powers does not preclude the commissioner from entering a place immediately without invoking those powers. Therefore, I am perhaps not being wholly unreasonable in pointing to the interoperation of section 7 and schedule 2, which flesh out that that can happen.
Are you talking about the requirements to give evidence?
Yes.
Evidence can be produced much quicker than access to a place of detention can be granted. That is why there is not such a long period in relation to evidence.
Okay. I will leave it there.
How does that square with the optional protocol, which states that if an inquiry is being conducted, such a person should get immediate entry to "places of detention"?
That is under section 8. Sorry; can you repeat your question? I am not sure that I follow your point.
Our adviser has raised a point about the optional protocol in relation to section 8, entitled "Places of detention: powers of entry, inspection and interview". Section 8(1) states:
But section 8(5) states:
The issue relates not to subsection (1) but to subsection (2).
Subsection (2) just defines "place of detention". The principal power is in section 8(1). It is subject to schedule 3 under section 8(5). I may be missing something. I do not fully understand the point.
I accept that.
The difference seems to be that under the Scottish bill, the commissioner will have to be conducting a specific inquiry.
Do you mean to entitle the commissioner to enter a place of detention?
Yes.
Section 8 specifies that the commissioner may enter a place of detention
Perhaps you could get back to us on that. Our understanding is that the UK has ratified the optional protocol where it does not require—
I beg your pardon, but I think that we are talking at cross purposes. Do you mean the optional protocol to the convention?
I mean the optional protocol against torture that the UK signed up to. The protocol does not specify that there has to be an inquiry before the commissioner would get immediate entry into a place of detention.
You are asking about the link between the rights that the commissioner would have to help out—
My point is that we have signed up to a protocol that gives more rights to a commissioner than the Scottish Commissioner for Human Rights Bill does.
We will write to the committee to clarify the issue. In view of our discussion with the committee, we might consider revising our thoughts about the provision in schedule 3(2) on the 14 days' notice. Is that all right?
That is great.
Neither my officials nor I know of any plans to abolish the office of inspector of prisons in Scotland. I am pretty certain about that. The inspector of prisons will be one of the people whose functions the commissioner will want to avoid duplicating. We are more than happy to engage with the committee on the details of how the budget for the commissioner will operate, his or her relationship with the Scottish Parliamentary Corporate Body and the question of the duplication of functions, if the committee has particular concerns about them. However, those issues do not particularly involve the principles of the bill. Perhaps, in the light of the Finance Committee's report and other reports, the committee has a view on those matters. We will, as I say, be happy to talk to the committee about them. However, the inspectorate of prisons will not be treated any differently from any other inspectorate or commissioner in the field.
You have already dealt with some of the issues around the commissioner's relationship with the Scottish courts. However, a few issues were not covered and I would like to go over them now. Essentially, the Scottish commissioner will have the power to intervene in court and the GB commission will have the power to initiate proceedings. There is also the question of the commissioner's role in supporting wider human rights issues as opposed to individual cases.
Behind the general power to intervene was a desire to avoid the uncertainty that surrounded the Northern Ireland Human Rights Commission in that area. As I understand it, powers do not exist for other interventees—if there is such a word—in criminal cases or in children's hearings cases, which have similar aspects to criminal cases in some regards. There may or may not be a reason for intervention, but if there is, it should be considered generically, not with particular regard to the human rights commissioner. We should consider whether intervention is a good thing and how it would affect the speed of a case, the rights of the accused, and other sideways issues. Intervention in such cases should not be a by-blow of the Scottish Commissioner for Human Rights Bill; it should come about only after proper consultation on the implications that it might have across the board. The question is whether the human rights commissioner's right to intervene in proceedings will lead to other people asking for leave to intervene. Incidentally, the same applies to tribunals. If anything, a stronger case can be made, because tribunals are not criminal proceedings and they do not relate to the children's hearings system in quite the same way.
Will the GB commission have the power to intervene in criminal proceedings in England and Wales?
I think that there may be a right.
Our understanding is that the GB commission will not be able to intervene in criminal proceedings. There may be some confusion because the Equality Bill is framed rather differently from our bill. The Equality Bill confers what looks like a general power to intervene, but that power is qualified. It is described as being
At any level.
Yes. It will be possible for issues that arise from criminal cases to be raised in another context, but not as part of the criminal justice procedure.
The note that we have from our discussion with officials from the Department for Constitutional Affairs states that the GB commission will have such a power.
We can clarify that point in writing, if that would be helpful. It might be that our UK counterparts were making the point that, if the procedures in England and Wales were changed to allow intervention in criminal cases generally, the GB commission would be able to take advantage of that change and intervene. That might be what they were getting at, but we will provide clarification in writing.
The power to intervene is subject to the leave of the court. The commissioner must have permission from the court.
Yes.
The Law Society said that it could not see anything in the bill that would prevent the commissioner from providing financial support to enable individuals to bring cases, given that the commission will not have title to take cases in the Scottish courts.
The answer to that is relatively straightforward. The commissioner will have the powers that are conferred by the bill. They will not have a power of general competence that goes beyond the general duties in the bill. The commissioner's powers have to be exercised for the purpose of the general function in section 2. As the commissioner will not have a power of general competence, our understanding is that it will not be competent for them to use funds in that particular way. If they did so, that would raise issues. There was a discussion early on about what would happen if the commissioner went beyond their remit. The short answer is that there would be questions about their ability to spend their budget, which the Parliament will provide for particular purposes.
Finally, I have a question on an issue that we have discussed already but I want to be sure that we have covered it. It is the Scottish commissioner's power to consent to the GB commission acting in relation to a devolved matter. Does the drafting of the UK bill provide a back door for the Scottish commissioner to grant consent for judicial review, given that they will not have the power to initiate proceedings?
Our understanding is that that is not the case, but I look to my officials for clarity.
There is no agenda to that effect. The bill builds on the provisions in the Equality Bill and there needs to be formal consent from the commissioner, but the provisions are not designed to allow the commissioner to initiate intervention by the back door. That would be improper.
I think that we agree that, if we decide that the Scottish commissioner should not have the power to intervene, the drafting of the UK bill should not give them that power by the back door. However, we have raised drafting issues with the Department for Constitutional Affairs. We agree that intervention by the back door would not be desirable, but there is nothing in the UK bill that specifically excludes it. Are you satisfied that the drafting of the bill does not allow such intervention?
The minister may want to make a statement to that effect during the passage of the Scottish bill, so that it is on record that powers are not to be used in that particular way. I would leave that for the minister to consider.
The issue would be whether the Equality Bill at Westminster accidentally changed the legislation on devolution. That would be a substantial constitutional issue, unless any change were made expressly. United Kingdom ministers have been careful to make it clear that they have no intention of doing anything of the sort.
There will be a memorandum of understanding between the Scottish Executive and the department that is piloting the Equality Bill on how the powers will operate. We would expect the possible mischief that you envisage to be formally excluded in that agreement.
Apart from any consideration of what might happen at our end, the GB commission will not operate in the way envisaged. That is the bottom line. That is not the purpose for which the GB commission is being set up. UK ministers have made that clear.
That is helpful. We may want to have further discussions at stage 2 on the impact of the consent power and on what it means.
I want to ask about resources and salaries. I am conscious of the time so I will try to be brief.
No. As I said before, I have considered this issue from the other side, as it were. Oddly enough, when I was a member of the SPCB, one of my responsibilities was to deal with the commissioners. The wheel comes full circle.
You have answered a number of questions there, but I want to be clear on this. A number of witnesses have suggested that the £1 million that the commissioner is to start out with is not sufficient. The Finance Committee has suggested that the issues that you have taken into account to arrive at that figure are perhaps not as robust as they might be. It is important to consider the message that is given out about the budget that is set alongside our establishment of a human rights commissioner.
Yes.
Do you think that £1 million will be sufficient? Will you keep that under review?
Absolutely. At the end of the day, the question is, "How long is a piece of string?" We always encounter issues such as this with budgets. A larger budget means that we can do more things more imaginatively; a smaller budget means that we are a bit more constrained. It is about striking a reasonable balance, paying due regard to the proper use of public funds and considering what will allow the commissioner reasonably to carry out his or her functions.
I do not want to question your judgment further but, should there be a shortfall, would it be appropriate for the SPCB to adjust the figures in responding to that shortfall through what the SPCB witnesses described earlier today as a contingency fund, or should the Executive pick it up?
I think that the question is an artificial one. The commissioner will not be entitled to overspend his or her budget. They are accountable officers as far as the financial arrangements are concerned. I am not an expert on all that but, like any other budget holder—such as the parliamentary authorities and Executive ministers—the commissioner will have a responsibility not to spend money that they do not have. That is the bottom line. They must cut or expand their cloth to meet the requirements of the budget that they are given, and they must take due account of the workload in doing so.
My understanding of Nora Radcliffe's response on the matter earlier is that, if a particular issue arose that had not been foreseen, but that the commissioner felt it absolutely essential to investigate—although to do so would not be possible within their budget—there would need to be some sort of contingency to pay for that. Are you saying that that is not the case?
No, I am not saying that. That would be a matter of the budget being expanded by agreement, and would be up to the corporate body. It would have no implications for the Executive or for the rest of the budget. The corporate body will take that action if it feels that it has the contingency funding to do so.
I am not clear about the permission. Paragraph 13(b) of schedule 1, on finance, refers to
That statement is a standard provision that is used for all commissioners. It is within the ambit of the accountable officer role that you talked about, in paragraph 12 of schedule 1, which is the same as that for other commissioners. That is against the background of the controls that are exercised through audit and in other respects. That is no different from an individual budget—the bottom line is that if you ain't got the money, you cannot spend it.
I understand the fiduciary duty that you describe and that the commissioner would have to give notice if they needed another £23 million to do something, for example. I accept that the bill contains the standard form of words. However, I still comment on them.
I may need guidance on that, but I think that I am right in saying that that relates to the general function not of controlling the commissioner, but of imposing proper standards. I guess that the corporate body acts under such an arrangement, which links to the powers of the auditor.
The Public Finance and Accountability (Scotland) Act 2000 gives the Scottish ministers such powers of direction in relation to accounts. The bill mirrors those provisions.
I will ask just for clarity. In essence, as I suspected, do exactly the same rules apply to the corporate body?
Yes.
Right—that is enough.
The memorandum from the Finance Committee shows the budget for 2006-07, which I will not look at, and that for subsequent years, which neatly comes out at £996,000. We talked about whether the commissioner would want legal advice. We all acknowledge that going down that road is expensive.
You are talking about the financial memorandum, not the Finance Committee's report.
No—the figures are from the Finance Committee, which laid out what it thought the budget might be after 2007. It has various figures for the commissioners' salaries, the recruitment of staff, rent, acquisition, equipment and running costs. One functional cost is for promotion and awareness raising. All that I am asking is, if the commissioner starts to receive legal advice, as we discussed earlier, and they conduct any inquiries, do we seriously think that £175,000 will be enough? I would expect legal advice to be funded from promotion and awareness raising, which is why I have doubts about the ability to stick to £1 million.
The Finance Committee's report lifted those figures from the financial memorandum that the Executive provided. I made the point before that the information is illustrative and represents the kind of costs that might be incurred. The commissioner is entitled to make use of the budget up to the limit that they are given in whatever way they want other than for their own salary. Therefore, more or less could be spent on promotion, legal inquiries or any other function.
Convener, can I go back to a question that does not relate to finances?
I want to close the discussion, so it must be brief.
Minister, I have a question on criminal cases, which arises out of evidence from the Faculty of Advocates. Do you envisage that the human rights commissioner would get involved when the Lord Advocate makes a reference at the end of a criminal trial? I refer to when an accused has won an appeal—the Lord Advocate might refer the case back for a decision of the court.
Do you mean on a point of principle?
Exactly.
All criminal stuff is off limits, but that does not mean that the commissioner could not investigate the way that court services run. You are talking about a case—criminal proceedings.
The Faculty of Advocates gave an example. Valerie Stacey said:
I see. If the matter is not within the proceedings, that would be different. If a general question is being raised about definitions and human rights, the commissioner would be covered by their duty to keep the law of Scotland under review in relation to human rights.
I want to be content and I am not sure that that is quite right, because we are still talking about the commissioner being involved in the context of a case. Are we talking about a reference forward for bench decision?
No. The case is finished.
We are talking about the Lord Advocate's specific power to refer any point of law to a panel of judges, which he did in the examples that Mike Pringle gave. To me, the answer is clear cut because, if the Lord Advocate's reference was on a criminal case, the commissioner would have no locus.
That is my thought. Is that right?
We had better come back to the committee on that. Whether such a reference is still within the proceedings is a very narrow question. If it is not within the proceedings, the commissioner is covered by the general function of keeping the law under review, but we will check that out.
There are too many amateur lawyers like me involved in the argument.
Our adviser has pointed out one other question. Just for the purposes of completeness, would the power of intervention extend to the European Court of Human Rights in Strasbourg? We believe that the Northern Ireland Human Rights Commission has intervened in Strasbourg proceedings, so there may be some precedent for such intervention.
I think that that would be a matter for the court in Strasbourg, rather than the Scottish Parliament, to decide. There is a general power in section 11(8) of the bill, which says:
You will be pleased to know that we have exhausted our lines of questioning. I thank you for being so clear in your answers and for your thorough written evidence, which we will consider now and over the next few weeks as we put together our stage 1 report. I thank you and your officials for coming along.
We move into private to discuss the contents of our stage 1 report.
Meeting continued in private until 13:34.