Convener's Report
Item 7 is my report. I suggest that members may take advantage of the coffee and tea that is available while we go through the report.
Will this item take long?
No, although I know you are agitated about this item, Gordon.
No.
It is good that you are not agitated, as there are a few matters that I want to raise and on which it is important that the committee makes a decision.
If item 7 is to be short, I say that we carry on. If it is to take longer, we should adjourn.
One or two issues need to be dealt with, so the item will take about 10 to 15 minutes. Will we break for a short adjournment so that we can get coffee and tea, or will we continue?
I am content to go on.
Okay, I shall not force-feed you coffee.
My report contains several matters. First, I refer members to the letter, J1/02/02/10, which comes from Elaine Bailey, who is managing director of Premier Prison Services Ltd, which runs Kilmarnock prison. I will read the letter out and refer to the Official Report to which it refers. I do this simply to put the letter on record. The letter is dated 20 December 2001. I quote:
"Dear Sirs,
Subsequent to my appearance at the Justice 1 Committee on 31st October, which I attended with Ron Tasker, we have exchanged correspondence in relation to Michael Matheson's questions regarding the Freedom of Information Bill.
In researching Mr. Matheson's question, I reviewed the transcript of the meeting and whilst so doing recognised that I had made an error in one of my responses to the Committee. I said that I saw no problem with members of the Committee seeing privately in its entirety the contract that we have with the Scottish Prison Service.
That was an error on my part and I wish to withdraw that response from the record. There are a small number of issues which must remain commercially confidential in order to preserve our competitive position both in Scotland, and England and Wales where we also operate.
Earlier this year we had been in discussion with the Scottish Prison Service about the publication of the contract between ourselves and SPS and had agreed an acceptable position. I understand that publication is now imminent.
There was a further error in my response in relation to the level of profit I quoted. I said that our profit in 2000 was £300k and that it was likely to be the same this year. I now find that to be incorrect; our forecast for 2001 is standing at £700k.
I apologise unreservedly for these mistakes and any confusion that may have been caused as a result. It was my first time before a Government Committee and I was somewhat nervous. I apologise for misleading Committee members, it had certainly not been my intention to do so.
Your sincerely,
Elaine Bailey
Managing Director
copy: Mr. Jim Wallace, Deputy First Minister
Mr. Tony Cameron, SPS
Mr. Ron Tasker, HMP Kilmarnock"
I refer members to the Official Report of the committee meeting on 30 October. Michael Matheson asked:
"Would you have any problem with publishing the contract and placing it in the public domain with the commercially confidential sections removed? Would you be happy for members of the committee to view the contract in private with the commercially confidential information still included?"
Elaine Bailey answered:
"I shall take the last two questions first, because I understand those. I thought that the contract had been published, or was at least in the throes of being published. I know that we had discussions with the SPS about precisely which parts of the contract would be treated as commercial and confidential; both the SPS and Premier wanted to reduce that to a bare minimum. As far as I know, if the contract has not already been published, it is very close to publication. I would have no problem with the committee seeing the commercially confidential information privately."
That is the evidence that is in the Official Report.
I am most concerned that the months have passed and what was offered then is now changing. I make no comment about the reasons, but I am concerned. I say by way of preface that it is not possible to change what is in the Official Report by letter. It is not possible to withdraw it and have it changed. The letter that I have read out is now in the Official Report.
Several options are open to the committee if it has concerns about the nature of the evidence that we will now not have. The committee can choose to respond to the letter from Premier Prison Services Ltd. We can also question the reason given for refusing to produce the entire contract, given our undertaking to examine the document in private, which was the position that was accepted originally. We can call Elaine Bailey back to give further evidence to the committee on the reason for refusing to produce the entire contract. We can make a written request to the Minister for Justice that the full contract be produced and invite the minister to give evidence on it. The other option is to await the agreed version of the contract, as it may provide all the information the committee needs, although I remind members that the Official Report says:
"As far as I know, if the contract has not already been published, it is very close to publication."—[Official Report, Justice 1 Committee, 30 October 2001; c 2725.]
We are now in the middle of January.
A final sanction is open to the Parliament under section 23 of the Scotland Act 1998, which gives Parliament the power to require any person
"to produce documents in his custody or under his control".
We may not be near to using that sanction yet and the committee may not feel that we are even going in that direction. I say that by way of completing the picture of remedies that are open to us. It is up to the committee to determine what it wants to do about the letter, in light of the evidence that I have read out.
The letter is dated seven weeks after the meeting at which Elaine Bailey gave evidence. That is not totally unreasonable. I have noticed that ministers of successive Governments have sent letters of clarification after, in lengthy evidence, they gave responses on one or two details that were not strictly in accordance with the correct position. The matter should have been clarified as soon as it was noted that that had happened. Seven weeks is not totally out of line with previous practice. It may have taken some time for Elaine Bailey to notice the mistake. She gave evidence over—how long? Was it half an hour?
I cannot tell immediately from the Official Report. She started giving evidence before 14:30. We will check that for you.
The key point is that she has corrected inaccuracies that needed correction. We should ask for the agreed contract to be sent in and we should note the terms of her letter. We are not entitled to ask her to breach commercial confidentiality. It would not be a good precedent for the Parliament to set.
The point is that the contract was to be seen in private.
Let us hear the discussion. My first reaction is that I do not agree with Lord James Douglas-Hamilton about seven weeks being a reasonable length of time. Had I been Elaine Bailey, not having been before a parliamentary committee before, the first thing that I would have done when the Official Report came out would have been to read it and see what I had said. It would be human nature to do that, given that it was her first time before a parliamentary committee.
I have problems with the delay of seven weeks between the meeting and the letter. Ministers are a different matter. We know the pattern that they set and the amount of work that they have. I am not justifying their practice, but that is the reason that is given for long delay. It is human nature to look at what one has said when the Official Report comes out.
There is a parliamentary precedent for committees examining in private financial figures that would not be released to the public: the Transport and the Environment Committee has done that on private finance initiatives and the water industry.
I am sorry that Elaine Bailey has retracted the offer she made to the committee. Perhaps Premier Prison Services Ltd will reconsider; I wonder what it will offer us.
Is it your position that we should respond to the letter in writing and question—given the undertaking—the reasoning for refusing to produce the entire contract?
Yes. We could point out that in other committees in the Parliament, that issue has not been a problem.
Personally, I am not very interested in the phrase "given the undertaking". The first issue is whether they should let us see the whole contract. That is Maureen Macmillan's point. The second issue—which is totally separate—is the fact that Elaine Bailey said that she would let us see the whole contract. Her position is that she should not have done that.
She went beyond her brief.
Yes, she did. She went beyond whatever authority she had. We do not know whether that was spotted a week later and it took six weeks to tell her or whether the chairman of the board spotted it three days before the letter. Either way, she went beyond her brief and she has said that she is sorry she did so. That is the end of that. Her position is that she should not have said what she said and that she is not prepared to show us the contract. We can no longer rely on the undertaking that she gave. I found her a straightforward witness. If she repents for having given an undertaking that she should not have given, we cannot do much about that—we cannot force the undertaking.
The only question is whether Premier Prison Services Ltd should be obliged to let us see the whole contract—whether or not it gave an undertaking. I do not know the answer to that. There will obviously have to be an agreement with the Scottish Prison Service about what the company shows. My inclination is to wait and see how much is published, to identify what is missing and to complain, as a committee, if we think we should see more.
Forgive my cynicism, but I would not think that anything that was shown to seven people was confidential. I would not trust the confidentiality of any seven people in the world, because with as many as seven people it is never possible to prove who is responsible for any leak. I would never trust seven people in a confidential situation. Few Cabinets do not leak, never mind the Justice 1 Committee.
I agree that there are two issues. I agree with Gordon Jackson that the fact that Elaine Bailey cannot live up to her undertaking is not a hanging offence. We must accept that. The matter of whether we should see the whole contract is much more serious. Commercial confidentiality is often used in a totally dishonest manner to conceal what might be embarrassing. I am not sure whether that has been the case on this occasion. I do not know who has leant on Elaine Bailey. We should pursue the issue of the whole contract being made available, but there is no need to take Ms Bailey off to the tolbooth.
I too have the feeling that Elaine Bailey was leant on. I am not so relaxed about the seven weeks. I do not impugn Elaine Bailey, who gave the evidence. I am curious about the fact that it took seven weeks to retract the undertaking. I cannot believe for a minute that the witness and those who might have leant on her looked at what was said a long time ago. Why are we being denied the whole contract now?
I also have concerns about the delay in getting anything out of Premier Prison Services Ltd. It was said in evidence that something would be published shortly. That was at the end of October. We are months down the road. I would like some guidance on the terms of our response, so that a letter can be composed and circulated to members of the committee—including those who are not present. We want something that the committee will get behind wholeheartedly.
I would be happy to say that the committee was delighted at the undertaking to give us the whole contract; that we are disappointed that that is no longer the company's position; that we have been exercised about why we will not see the contract; and that we reserve the right to revisit the matter when it is produced.
I refer members to the stage 1 debate in the Parliament on the Freedom of Information (Scotland) Bill, during which the Deputy Minister for Justice, when asked about the Kilmarnock prison contract, stated that it would be "substantially published". That is at column 5514 of the Official Report. Executive officials said that the contract will be published within the next month or so. Are members content that we write to Premier Prison Services Ltd with the response as outlined by Gordon Jackson? We should also state that we intend to see the contract in February. We require clarification from the minister about when we will see the contract, given his statement in the stage 1 debate.
Could we ask Premier Prison Services Ltd whether we can find out anything that is not in the public domain, without the company releasing confidential information?
We can take that up when we find out which details of the contract are published. I hope that we will have the contract in February. The matter should not be delayed further; Elaine Bailey gave evidence to the committee in October.
The fourth paragraph of Elaine Bailey's letter makes it clear that the publication of the contract is imminent. Therefore, Jim Wallace is as much involved as Elaine Bailey. We should, by all means, ask Premier Prison Services for clarification as to the date of publication, but we should also ask Jim Wallace.
Yes.
Gordon Jackson's comments on our letter were correct. The letter should put down a marker; we will wait for the report, but we reserve the right to return to the matter.
Certainly.
We should be prepared to revisit the matter.
It is difficult to draft a letter by committee, but we will get there. I will send a draft copy to members, who can comment on it.
We should move on. The next point is on Tony Cameron's evidence. Members will remember that there was a conflict of evidence. We have received responses on Peterhead prison from Jim Wallace and Alex Salmond, but we await one from Henry McLeish. I suggest that we do not proceed with the matter until we have all three responses, at which point the committee can decide.
Members indicated agreement.
The next point is on research for the regulation of the legal profession inquiry. I remind members that before Christmas it was agreed that comparative research into the regulation of the legal profession should be commissioned. Comments have been made about the New South Wales ombudsman. Because commissioning and carrying out research is a lengthy process, it might not be possible to conduct the research in the time scale of the inquiry. We now have an adviser, who has expertise in comparative models. Next week, the committee will take evidence from academics with knowledge of the matter. I propose that we use the adviser and do not proceed with an application for funding for research. What are members' views on that?
Do we have a paper on the matter?
No. At previous meetings, it was asked whether we could examine models from Europe, Australasia or the American states. I get the feeling that the committee is moving in a certain direction on the regulation of the legal profession, but I do not want to pre-empt the matter. It would be useful to have a description of other models in a paper from the adviser. If we want to take the matter further, we can, but I do not think that we should bid for research.
That is a good idea.
Should we approve an adviser?
We have an adviser.
So we should authorise him to proceed.
Yes, we should authorise him to proceed with research. Are members content with that?
Members indicated agreement.
Representatives of Scotland Against Crooked Lawyers will give evidence next week. I do not want to be flippant, but several members of the committee have been designated as crooked lawyers.
I am concerned that a leaflet that has been distributed frequently to people going in and out of the Parliament contains—to use a modest expression—inappropriate comments about members of the committee. I would like the committee's guidance on how to deal with that, given that Scotland Against Crooked Lawyers is coming before the committee next week. I am minded to write to it and give advance warning that I am aware of its comments and that I am not prepared to accept such comments in the course of its evidence.
Scotland Against Crooked Lawyers has also been advised that it must not name individuals or firms because evidence is taken under the sanctity of Parliament and there is no right of redress for those who are named—unlike ministers, who have a platform. That is a clear warning to SACL that that must not be done.
I am concerned about members of the committee being impugned. Four lawyers are sitting around the table. Donald Gorrie is blameless. Can you give me your views on how I should address the matter, because I am very concerned that the committee is being impugned?
I have only recently joined the committee, so SACL probably did not know I am on it. If you are writing to stress that SACL should not name individual firms and cases, you should also say that the witnesses must conduct themselves sensibly. What people put in leaflets is up to them, but what they do on a public occasion such as giving evidence is different and they have to behave themselves. That is my suggestion, if it could be put into parliamentary language.
It might be the wrong thing to say; it might just encourage them. I do not care that much. That kind of thing is water off a duck's back. It is a matter of principle. I personally do not mind what people say, but there is a principle that people should be discouraged from having a go at people gratuitously in that way.
There are a number of important principles around the matter, one of which is freedom of speech. They should be entitled to put the principles of their case, but that does not entitle them to libel or slander people with unproven charges. The witnesses need to be careful in the language that they use.
Anything that has been said about me is also water off a duck's back. Plenty worse has been said in the political forum.
I was taking the view that the leaflet is a slight on the committee as a collective body—and I am not prepared to have that. The committee conducts itself with responsibility and integrity and that must be made plain.
The next item is committee travel. A bid has gone in for the committee to visit various places. You will notice that it is nowhere exotic when you are on the Justice 1 Committee—the list includes Peterhead. We do not get to go to an island unless there is a prison on it.
On the committee debate, I have bid for 21 March for a debate on our report into the legal aid inquiry, but responses from the Executive are coming in advance of that. We may want to amend the report before the debate in light of those responses.
On the Freedom of Information (Scotland) Bill, I inform members that amendments can now be lodged for stage 2. The closing date for lodging amendments for day one of stage 2 is Friday 1 February at 2 o'clock. I encourage members to lodge amendments as soon as possible. The first committee meeting for considering stage 2 amendments is 5 February.
I also advise that during the stage 1 debate, the Executive gave an undertaking to make the draft codes of practice available by Wednesday 30 January. That is important because it means that the drafts will be available prior to amendments being lodged. That will have an impact on the amendments. I am trying to encourage the drafts to be made available to the wider public, who have a great deal of interest in them.
That takes me to the end of the convener's report, so I can take questions.
Over how many days are we going to be doing the stage 2 amendments?
We hope it will take two days. That is why I am asking for amendments to be lodged. We hope it will take two days, but it depends on the number of amendments.
What dates would that be?
It would be 5 and 12 February.
We would therefore do stage 2 for two weeks running in February.
Yes, before the week's recess.
I meant to add something that is not in the convener's report. I was tentatively hoping that a few of us might have a more informal visit to Peterhead prison. I am afraid that that might happen during the recess. I do not know whether anyone who is not going away would be interested. I want to familiarise myself with the sex offenders programme; I might be prepared to do it myself.
Are we not going to do that during our visit to Peterhead?
The trouble with having the committee meeting at that time is that arrangements are more cumbersome for microphones and the official report. That would delay the visit even further. We are still having that meeting; I am proposing an additional visit. I have always found small-scale visits to prisons useful.
Do we have any idea when the away day will take place?
It will probably be mid-March. The Justice 2 Committee is trying to come and we hope to invite the minister. He did not know about that, but he does now.
Could I recap? The Government amendments on the codes of conduct have to be in by 31 January. Is that correct?
The draft codes of conduct should be available by Wednesday 30 January.
When do our amendments have to be in by?
By Friday 1 February. You have only two days. That was as much as we could squeeze out of the Executive.
Item 8 on the agenda is to be discussed in private.
Meeting continued in private until 15:23.