Official Report 293KB pdf
Cairngorms National Park Authority (PE481)
We begin with consideration of new petitions. The first petition to be considered is PE481, from Mr Bill Wright, on the powers of the Cairngorms national park authority. Mr Wright is here to speak to the petition, along with Mr Bill McDermott and Mr Robert Maund.
I am here this morning on behalf of the Cairngorms Campaign. I am joined by Bill McDermott and Robert Maund of the Scottish Council for National Parks. Formerly, Bill was deputy chief officer of the peak district national park; nowadays he is a shellfish farmer and Highland resident. Robert is the former director of planning for Strathclyde Regional Council. He is familiar with the circumstances under which the Loch Lomond and the Trossachs national park is being established.
Thank you.
I said everything that I wanted to say in the debate. My principal concern—I ask our witnesses to reflect on it—is the full implication if the Cairngorm area were to receive world heritage site status. What would be the implications for management if we go down the road that is currently suggested rather than the road that the witnesses are suggesting?
I will answer, because I was present at the members' business debate when the situation with regard to world heritage site designation was discussed. From the evidence from the International Union for the Conservation of Nature and Natural Resources—IUCN—it is clear that it would be unlikely that, without integrated planning powers, the Cairngorms would have any possibility of meeting the necessary criteria.
Perhaps it would be helpful if you could explain to us the situation in the English national parks. Could you comment on that, given that you have had experience in the peaks area?
I should say that I am talking about the experiences of English and Welsh national parks; the Welsh are proud of their national parks. There were 40 years of what many would say was rough justice for most of the national parks in England and Wales.
It is unfortunate that our two members from the Highlands are not here today. Perhaps that is sod's law.
Robert Maund could answer that question, given that he was a director of planning in Strathclyde region and that he is familiar with the way in which the interim committee is operated in Loch Lomond and the Trossachs. There will be a new board with five directly elected members, 10 ministerially appointed members and 10 established councillors.
Before the national park was set up, and when I was working in Strathclyde, we had a joint committee between four local authorities, two districts and two regions. One of the difficulties was that, although the relationship at the joint committee level was good, when it came to implementation, the district councils retained planning powers. Most of the judgments that had to be made were local concerns at that stage. The boundary at Loch Lomond went straight up the middle of the loch, and nothing could be done about the fact that the agreed policy was implemented on one side of the loch but not on the other. Such a situation would be extremely worrying in the context of future national parks.
You still have not really answered my question about levels of expertise. You suggest that there is likely to be confusion and that different policies will operate in the area unless the plans all come under one authority. However, the ultimate authority is the Scottish Executive, which sets planning guidelines that must be observed. Will there be evident expertise in the park authority, in order to ensure that the organisation sticks to those guidelines?
I have no reason to believe otherwise. Organisations throughout Scotland are made up of elected members or a combination of elected and appointed members, who bring a great deal of competence and commitment to those organisations. There is absolutely no reason why that should not be the case with the national park authority.
Excuse my ignorance, but are you saying that if an individual wanted to adapt an old farm or a derelict building, both the planning and the building warrant aspects of that individual's application would be controlled by the park authority?
We are concerned about planning, land use, preparation of the plan and development control powers. We want the park authority to have those powers, as was agreed for Loch Lomond and the Trossachs.
You have referred several times to the fact that five members of the board will be elected. How will they be elected and by whom?
Under the National Parks (Scotland) Act 2000, they will be directly elected by residents within whatever the national park boundary is to be. Anyone who is resident within the national park boundary will be able to vote for those five members. The precise details of the election procedure have yet to be determined.
You also referred to the fact that the Loch Lomond and the Trossachs national park has full planning powers. When was the park given those powers?
The designation order for Loch Lomond and the Trossachs has not been completed yet. Robert Maund probably backs that view. However, the order, which has been put out for public consultation, includes those powers.
The Executive is recommending full planning powers for one national park, but not for another.
That is correct.
Is there any rationale for that difference?
We do not believe so.
That is an important issue. We believe that the correct judgment was made about the Loch Lomond and the Trossachs national park, but there does not seem to be any rational reason why the Cairngorms should be treated differently. There are five local authorities in the Cairngorms and getting them to pursue exactly the same, consistent path will be complex.
What are the views of the five local authorities?
They take the opposite view to us. That is understandable, because planning powers are a key function of local government these days. However, international convention is that integrated management of planning generally takes place in national parks.
It has been suggested to me that that is the same situation as in Loch Lomond and the Trossachs—there will be local authorities in those areas that do not want to give up their planning powers. What is the difference?
In Loch Lomond and the Trossachs, by and large, the local authorities have favoured the arrangement.
Are you saying that the Cairngorms will not get world heritage status unless you have the full planning powers?
We cannot guarantee world heritage status, because the criteria have been tightened up. The case for world heritage site designation has been pursued by the UK Government since 1981—particularly in 1990 by Lord James Douglas-Hamilton when he was a Scottish Office minister. It is clear from the advice in letters from the IUCN, which acts as the arbiter, that there is no possibility of such a designation without full planning powers.
I want to get this clear. Around what issues would the kind of conflicts that you mention between local authorities and the board revolve? Are we talking about economic exploitation of the Cairngorms, tourism development and so on? Are those the areas of potential conflict?
Yes. In the initial phase of the legislation, Sam Galbraith talked about finding a new way of doing things. He was really talking about rural sustainable development. The national park authority will have to find new ways of socioeconomic development that conserve the natural and cultural heritage. That is its duty. We are moving into a completely different paradigm for economic development in national parks, and leaving the old ways behind. It is no longer a case of jobs at all costs; it is about finding new ways of creating rural jobs.
What new ways of creating rural jobs would you approve of and promote? Is there serious concern about the extension of winter sports—ski lifts and so on?
There is a sore and painful history of the development of winter sports in the Cairngorms, with which I am sure the committee is familiar. All three ski centres are virtually on the boundaries of local authorities—Glenshee is on the boundary of Perth and Kinross and Aberdeenshire, the Lecht is on the boundary of Moray and Aberdeenshire and Cairngorm itself runs adjacent to the boundaries of Moray and Aberdeenshire. Both Moray Council and Aberdeenshire Council objected to the funicular railway development.
Would you approve of those activities above the extension of skiing activities?
We regard them as much more sustainable.
Highlands and Islands Enterprise did a study of the income to the Highlands through walking and mountaineering and concluded that more than £50 million could be attributed to such activities. The foot-and-mouth outbreak means that everyone realises the importance of access to the countryside.
I am sorry that I am late in arriving. I had to queue for half an hour for a taxi at Edinburgh airport, after spending half an hour in the air from Inverness.
Perhaps we should get a petition on that.
We should. I would speak to it.
I want to pursue what Dorothy-Grace Elder was saying. Surely the issue is not so much your opinion of what should be happening as your opinion of the way in which it should be managed. Irrespective of your views on the development of skiing, it is clear that there are an extraordinary number of areas of conflict between three or four councils over the same sport, let alone all the other things that are going on in the Cairngorms. Do you agree with that?
Our greatest fear is not about skiing development or the bulldozing of tracks on traditionally managed Highland estates in the core area. Our greatest concerns are about inconsistencies in housing development, such as the development of second homes. That is already an issue in Loch Lomond and the Trossachs, in Badenoch and Strathspey and—Bill McDermott will be aware of this—in the peak district.
One of the issues for local people living in that part of Scotland might be accountability. Many of us throughout Scotland have views about the accountability of quangos and elected organisations. In this instance, the issue is getting a balance between the two. There is a move throughout Scotland to encourage more directly elected representation. However, you are suggesting a move away from that. I invite you to comment on that.
The Parliament, in its wisdom, decided that there would be a majority of elected members on the national park authorities. The intention was to ensure accountability. If the park authority was the planning authority, its decisions would be made locally. I am not familiar with the arrangements in the Highland region. However, if, for example, a planning application was to be dealt with by the main Highland Council planning committee, the deliberations could be carried out by people from a wide area, not as locally as would be the case for the national park.
In the supplementary information to the petition, we are told:
We are in the hands of the National Parks (Scotland) Act 2000 in respect of the proportions. Scottish Natural Heritage's proposal is for five out of 25 board members to be directly elected.
Those 25 also include 10 elected councillors from the local authority.
In addition, yes.
So, 15 members of the 25 will be elected.
Yes. Indeed, there is nothing to prevent the board members who are appointed by ministers from being councillors. That has happened occasionally south of the border.
Would the normal planning law apply? Could any developer who was refused planning consent appeal to the ministers?
That is one of the problems with the proposal that has been set out. Scottish Natural Heritage's officials advised its board that, under the proposed arrangements, more applications were likely to end up on the desks of ministers if the national park board did not have full planning powers. Appeals would be against local authority decisions if the decisions were left with the local authority alone.
Why are higher powers being offered to Loch Lomond and the Trossachs national park?
The powers that are being offered to Loch Lomond and the Trossachs national park are the powers that all national parks in England and Wales have. I think that Dr Ewing was not present when we spoke about that earlier. There were 40 sad years during which those powers were not available to all the national parks in England. Loch Lomond and the Trossachs will follow the example of England and Wales and the rest of Europe. The Cairngorms national park will be different; the difficulty is that we do not know why.
No one knows the answer to the fundamental question.
That is the question that we want MSPs to put to the Executive and to SNH.
I presume that ministers know the answer. Do the witnesses know when the designation order for the Cairngorms national park will come before—or is expected to come before—the Rural Development Committee?
The designation order for the Cairngorms national park has not been published. We approached the Public Petitions Committee with the hope that the Executive will pay heed to today's discussions. Robert Maund knows about the designation order for the Loch Lomond and the Trossachs national park.
The Loch Lomond and the Trossachs national park should become operative on 1 April 2003.
That is a year from now.
It is much more advanced.
I thank the witnesses for their evidence, which has been informative for the members of this committee who are not on the Rural Development Committee. We have discovered a lot. The witnesses are welcome to stay and listen to the debate on the petition.
I prefer the first option. I have always supported the idea that we should have elections rather than unelected quangos, so I read the material on the petition with less sympathy than I have developed since hearing the arguments about the number of members of the national park authority who will be elected. The arguments have swayed me a bit. We should go for the first option, which is more aggressive.
The first option would mean that the committee would remain in charge of the petition. If we pass the petition to the Executive, it will pass out of our control. Should we write to the Executive to seek clarification on the issues?
I would like a clear explanation for the difference in approaches.
Yes. That is the key. We must know why the Executive takes a different approach to the two national parks.
In the letter to the Executive, could we make the point that influenced me about the proportion of elected members of the authority? Although it has been said that only five members will be elected directly, as the convener pointed out, there will be a further 10 elected representatives. Fifteen out of 25 members will be elected. It is possible that there could be more elected members because of ministers' discretion.
It appears that that matter is dealt with in the National Parks (Scotland) Act 2000, but we could ask the Executive for its views on whether the 10 members that it will nominate are likely to include elected people. The Executive can nominate more councillors for the board.
I think that I know the answer to this, but is the first option to keep charge of the petition, to wait for a response from the Executive and subsequently to recommend that the matter be passed to the Rural Development Committee or the Transport and the Environment Committee?
Yes. Do members agree to take the first option?
Police Assaults (PE482)
The second new petition is from Mr Douglas J Keil, on compulsory blood testing of suspects. Mr Keil, who appears on behalf of the Scottish Police Federation, will make a brief presentation. He has with him Jim McDonald and Raymond Pratt. Mr Keil has three minutes to make a presentation and then members will ask questions.
Mr Jim McDonald is the research officer for the Scottish Police Federation and Mr Raymond Pratt is a police officer from Strathclyde.
On behalf of the committee, I thank you for the material that you have made available to members. I did not appreciate the terrible dangers that police officers and other members of the public services face in dealing with such difficult individuals.
Mr Keil said that the police are there to protect the public and that the public have a responsibility through the Parliament to those who enforce the law. I fully accept that. The dangers to policemen change daily. Is it true that some people use their medical conditions as a weapon against being arrested or in resisting arrest, as some of your examples seem to suggest?
Unfortunately, I think that that is the case. Often, a threat is used in the hope that that will prevent arrest, but police officers do not operate on that basis. Regardless of the circumstances, they have no option but to go and deal with such people. Every incident is by no means the result of people wittingly being determined to infect officers. Circumstances can be accidental—for example, a police officer might have to deal with a victim of a road accident. Subsequently, it might be learned that the victim carried an infectious disease and that the policeman has been exposed to that risk. There can be risks in many incidents and on any day of the year.
One of the cases that is highlighted involved a policemen having to undergo medical attention on the basis that there may have been contamination. The treatment seemed to have had a serious effect on that individual's life and may have been far more harmful than the consequences of the contact would have been.
The medical advice is that, wherever there is a risk, treatment should be undergone. It is extremely unpleasant treatment. It can cause the officer involved to be physically unwell for weeks or months. It would be a huge gamble for an officer who had been exposed to the risk of contamination, no matter how small, to decide not to take the treatment. There is no option. Such an officer has to go through the treatment.
Other members probably have many questions on the issue, so I will make one more comment before I hand over. Prison officers and nurses must come across the same situation. Does the call for such testing extend beyond the police? Are prison officers, for example, protected in that medical checks are made on individuals who are going into prison so their circumstances are known? Is there a similar situation with nurses?
I do not know what other professions have done about the matter in Scotland. We have started to examine what has been done throughout the world. Australia and Canada have drawn up legislation that covers all emergency workers and, indeed, any victim who is exposed to risk. I do not know if anybody else has made a similar request in this country, but in the petition we acknowledge that many other groups could benefit.
You have opinion from counsel on the Human Rights Act 1998. Is there any doubt about that opinion or has it been consolidated? Is it the opinion of one member of the bar? Do you have good, solid support?
It is the opinion of one member of the bar, but we would like to think that he gave us a quality opinion. He deals with article 3 of the European convention on human rights, which states:
It sounds quite good, actually. There are precedents in our criminal law in which a refusal can be regarded critically from an evidential point of view. As there are precedents, should a refusal to submit to a test be regarded as critical evidentially in the courts?
Yes. That is part of the petition.
You are requesting that.
I can say with some certainty that we have not done that. It is almost a standard question on an application for insurance and most other commercial contract arrangements. Raymond Pratt might say something about that, as he has experienced it.
I had taken out an insurance policy two days before I was attacked. The insurance policy was to take effect seven days after I was attacked. In the insurance application form, I was asked whether I had submitted to an HIV test. When I filled out the form, I had not, but two days later I had. I was left with the dilemma of whether I should disclose that information to the insurance company and face the consequences of the disclosure. I was advised that, at the time that I submitted the form, I had not submitted to a test, so the form had been completed correctly and there was no necessity for me to divulge a subsequent test to the insurance company.
Surely your research department realises that, although insurance companies have a right to ask that perfectly reasonable question for commercial reasons, when they are dealing with police officers, who protect the public, they should treat them more considerately, as it is not a purely commercial question. It seems to me that the insurance company should be tackled on those questions.
I have spoken informally to people in the insurance industry. Their point of view is that even though a condition may have been acquired innocently, the economic risk to the insurance industry is the same. They are not willing to take a more sympathetic view simply because it is police officers who have fallen victim to an assault in the course of their duty.
Even when the tests are negative?
If a member of the public went to an insurance company and clarified the situation, they might get a more sympathetic hearing, but most of the assessment processes that major companies have are computerised. It is a tick-box situation, but it is open to anyone, including policemen, to explain what has happened if a result is negative.
We are all shocked, because some of us had no idea that tests were not compulsory. We are also shocked by the degree of manipulation that can be used against the police. In an age of contaminated blood and saliva—to a degree that we have never had before—does spitting on the police or exposing them to blood constitute using blood and saliva as weapons against the police? If so, surely it would be fair to both sides—the police and even the wretched accused—to have compulsory blood testing, because it would show whether or not the threat was serious. Have you explored that angle?
We support that view. If there was evidence that the person acted knowingly, their behaviour would aggravate the assault charge, but we are looking at how we can get some form of protection for police officers. What Dorothy-Grace Elder says is absolutely true.
There are difficulties. You are right that in many instances, attacks with blood or saliva—in particular deliberate ones—are at least as dangerous and possibly more dangerous to a policeman and his family than are other attacks. Fiscals face difficulties in prosecuting such attacks, because the evidence that can determine the seriousness of an assertion in such circumstances can only be supplied by the accused person.
You are saying that fiscals have the power now to compel someone to submit quickly to a blood test, but that they are not exercising that power, although they know the dangers of this age.
That is right, but it must be kept in perspective. My appreciation of the problem is that a fiscal would have to apply to the court for a warrant to obtain blood. There are processes that have to be followed. Obviously, the accused would have a voice, and a right to be represented, but it would be a long and difficult process. By the time all that had been gone through, the benefit would be lost.
So weeks or months could have passed.
In theory, yes.
I refer you to the case examples that you provided. Case 4 indicates the extreme degree of cruelty that sometimes is used by people against the police. Case 4 was a case from Glasgow, where a police officer arrested a man for assaulting his girlfriend, and the man spat in the policeman's mouth. In relation to that case, you state:
When I was assaulted, the heroin addict concerned used the phrase "I hope you die" as a means of reinforcing what he had done. On that occasion, I was told that it was easier for me to submit to a test and then wait for three months than for the suspect to be tested.
That was because of the legal situation, rather than any medical or physical situation.
That is correct. Legally, it was easier for me to obtain a test and wait three months to undergo another test than to test the suspect. That seems ludicrous in my opinion, because it led to my wife losing a baby. My wife could not understand either how someone could do such a thing to someone deliberately and not agree to undergo a test.
You are the police officer mentioned in the document, whose wife lost the baby.
Yes. We wondered why the suspect could not submit to a test. We had to wait three months before I could obtain the second of the two tests. It would have been far easier to test the suspect at the time.
How many children did you have then?
Two.
And your wife deliberately ended the pregnancy because of her terror about HIV.
Yes. She could not understand the process. I had been assaulted on many occasions as a police officer, but that was the first time that it had a direct effect on my family and on my life outwith the police service. My wife could not understand why the person concerned was putting us through three months of anguish.
She had another three months of her pregnancy to go, and simply could not bear the terrible distress.
The stress proved too much for her.
So policemen's and policewomen's families are being denied human rights as well.
Yes.
Is there some correlation between the testing that we have been discussing and breath testing for alcohol? The public have to submit to alcohol breath tests in the interests of the wider human race. Can the same argument or parallels be drawn in the context of human rights legislation? We accept breath testing. We know that it is a good thing and we know why we do it. Could a parallel be drawn in this case?
We like to think so. That relates to the point that Dr Ewing made. There are areas of the law, such as the example of breath testing for alcohol that you mentioned, where refusal to submit to a test leads to an offence. We believe that that should be true in this case. It should a matter of trying to compel the person to submit to a test. The hope is that that could be the result of this petition.
The petition has come from the federation's membership, but what about the chief constables and police authorities? Do they have a view about this?
Some time ago we contacted the Association of Chief Police Officers in Scotland and the Association of Scottish Police Superintendents, saying that we were embarking on this process. It is fair to say that they were reasonably supportive. I know for a fact that the ASPS is absolutely behind the petition, about which it has an article in its most recent members' magazine. Ultimately, however, we decided to pursue the matter ourselves.
Has the matter been raised with the elected police authorities?
To my knowledge, we have not raised it with the police authorities.
Has there been any reaction to your petition from civil liberties bodies?
I sent a copy of the petition to Liberty, but I do not think that we got a response. I am sure that once the petition gets some publicity, such bodies will take an interest. We can understand that reaction. What we think is important is the appropriateness and the proportionality of the issue, and we believe that that falls on our side.
I will ignore the human rights argument, as sometimes that can err in the wrong direction, but that is another point. The petition deals with two issues. Dorothy-Grace Elder identified one, concerning the need to process the samples quickly. A problem that arises from that relates to victims of a motor car accident, an example that was mentioned earlier. It is one thing to talk about the rights of a criminal; it is quite another to talk about the rights of an innocent victim. The second issue relates to your call for the Data Protection Act 1998 to be amended to allow the results of tests to be retained in the national police computer. I suspect that that is a UK matter and that, by trying to deal with it, the result that I think we all want will be delayed. It might be more useful to divorce that element at this point.
The clerk has advised me that we can ask the Executive to respond on that issue. The Executive would have to speak to the UK Government, but that would not prevent the petition from being considered.
I think that, although the Data Protection Act 1998 is a UK act, Helen Liddell deals with it in Scotland.
The Executive could consult the appropriate authorities.
There is a chance that the Data Protection Act 1998 will not be a major issue. At the moment, we can retain information on the Scottish Criminal Records Office computer and the police's national computer in relation to HIV and contagious diseases, but only with the permission of the person concerned. If legislation were passed and we could hold that information, the issue of the 1998 act would not be important. I am not sure of the legal position.
We can seek clarification on that issue. I thank you for your testimony this morning. You are free to sit and listen to the discussion about what to do with the petition.
Can we leave out the part about consulting the UK Government, apart from in relation to the Data Protection Act 1998? I do not think that we have to consult Westminster to change Scottish criminal law.
I seek the committee's view on the wider issue. It has been pointed out this morning that members of other front-line professions—the ambulance service, for example—might come into the scope of the legislation that we are discussing. I endorse the suggestion that we write to the Executive to ask for its views. However, we should bear in mind the other professionals who may equally be victims. I am most concerned by what I have learned this morning and I have every sympathy with the petitioners. We ought to address this issue and I hope that the Scottish Executive feels the same way.
I am sitting here boiling with rage and you will not see my feet for dust as I get over to the bills office to see what we can do about this.
Does a problem arise over patient confidentiality in hospitals? I wonder, too, whether we need to go dashing off to the bills office because it may be—although I am not sure—that the issue can be dealt with by statutory instrument.
I doubt it.
I have been involved with members' bills. People at the non-Executive bills unit have informed me that any member who introduces a member's bill now will not get it through before the end of the session.
Well, tough—somebody else can take it on.
The reason is simply that a list of members' bills is already in the pipeline.
Some of them are on pretty frail stuff compared with this subject.
Is this a Parliament or is it not a Parliament? Is it staffed or is it not staffed?
It is. The point is that any member's bill has to go out to consultation. Given that less than a year of the session remains, no member's bill has a realistic chance of making it on to the statute book.
Well now we know.
I love being up against unrealistic chances.
However, preparatory work could be done.
There is a sense of urgency and the problem has been around for a while. Many incidents have been reported and I am sure that many more have gone unreported. Every committee member has spoken of the sense of urgency and I would like that to be communicated to the Executive. We should ask whether a statutory instrument could be used. That would bring about a quick solution. However, if that is not possible, the Executive could perhaps find time for a short but effective bill.
I will try to go through all the suggestions that have been made. When we write to the Scottish Executive to ask it to respond to the petition and to outline any action that it intends to take, we should also ask it to consult the UK Government separately about the Data Protection Act 1998. We should point out to the Scottish Executive the precedent of the breath test and how that could be relevant in the circumstances that the petition refers to. We should also refer to other precedents, where a refusal to take a test has affected an accused person's rights in court. In a separate letter to the Association of British Insurers, we should ask about the problem—in relation not only to police officers but to other front-line professionals in the emergency services who find themselves in such a position. Indeed, in our letter to the Executive, we should ask it to consider those other professionals. We should also raise the issues of human rights and patient confidentiality in the national health service.
You have missed out querying whether a statutory instrument could be used and you have missed out emphasising the urgency of the matter.
Yes—I am sorry. We will ask the Executive whether changes could be implemented by statutory instrument or by any other legislative means and whether it proposes to do anything of that kind.
Convener, I am sure that you will stress that the Executive must respond urgently to your first tranche of questions. Like other members, I do not want the data protection element to slow down the Executive's reply for many months.
We want the Executive to respond to the issues for which it is responsible separately, while it consults the UK Government on issues for which the Government is responsible. Although insurance companies are a reserved matter, that should not prevent us from asking about a petition that has been submitted to the Scottish Parliament.
Perhaps that question could be lobbed in with our questions on data protection.
We will write to the Association of British Insurers separately.
It is the association's behaviour in Scotland that we are interested in.
It is fair to ask for the association's reaction to the petition, because it has been submitted to the Parliament and raises concerns. Do members agree with the proposed course of action?
Judicial Appointments (PE485)
Petition PE485, in the name of Mr James Duff, is on judicial appointments. Mr Duff, who is accompanied by Mr Derek Cooney, will make a brief presentation to the committee in support of the petition.
My petition concerns the appointment of Mr Kenneth Ross as resident sheriff at Dumfries and Galloway sheriff court. The area was his main place of business as a solicitor for 20 years and the Sheriff Courts (Scotland) Act 1971 makes it clear that, in such a case, a sheriff has no title to sit or to be appointed resident sheriff. There must be a conflict of interest here.
Thank you.
There must be a lot of other complaints from members of the public in Dumfries and Galloway regarding Mr Ross's conduct.
You have to remember that the Public Petitions Committee has limited powers and that we cannot interfere in individual appointments. We can deal only with the general issues.
I know of someone who is going to the Court of Session following today's committee meeting and who is to refer to Mr Ross's conduct over a period of 17 years. The matter is serious.
I accept that. However, you will have to accept that there are limitations on the Public Petitions Committee. I repeat that we can deal only with the general issues about the method of sheriff appointments, not with individual cases.
We cannot have anything to do with the things that have been said about Mr Ross's alleged defaults in cases. Those are nothing to do with us. Other bodies deal with issues such as that.
We are at the questions stage.
Yes. However, Mr Duff is ignoring the fact that the alternative to someone with experience is someone with no experience.
I am sure that there are plenty of competent lawyers throughout Scotland who could be appointed as sheriffs and who have a great deal of experience, but in Dumfries and Galloway Mr Ross has a conflict of interest. Over a 20-year period, he has had thousands of clients. I know that many of his clients have grievances against him. That is why he left Dumfries in the first instance. He had to obtain a house outside Dumfries because of the demonstrations.
I hate to disagree with my distinguished and knowledgeable colleague Dr Winnie Ewing on this issue, but I think that the appointment of a sheriff who has worked in a court for many years leads to an old boys and old girls system. For many years, that sheriff has been working in a small pool with the local fiscals and other solicitors. It could be argued that they will be subject to influence, regardless of who they are. I am concerned by the sheer cosiness of it all. One big danger that we face in Scotland is not outright corruption, but cosy corruption—palsy-walsy stuff in a small pool.
I, too, am interested in the petition. Mr Duff, are you aware of other professions that require people to work outwith areas in which there is a potential conflict of interest? There exists an organisation called Planning Aid. A planning officer cannot help or advise a constituent from the area in which they reside, but must operate in another jurisdiction. Do you know of other professions in which that situation prevails?
Mr Cooney and I have done a great deal of research in libraries about the appointment of resident sheriffs. There is no record of a solicitor being appointed as a resident sheriff in the area in which they previously worked. As far as I know, Mr Ross is the first person to be so appointed, in contravention of statutory requirements. Parliament passes laws, but those are not being abided by in this case.
I would like the witness to clarify that statement. Are you saying that guidelines for making judicial appointments already exist in statute and that those guidelines are not being applied?
Mr Cooney can answer that question, because recently he has spoken to senior judges about it. They have made it quite clear that Mr Ross should not be in his post.
Mr Ross issued an illegal decree against me because I was one of many people who made a complaint against him. I petitioned the Court of Session to use its nobile officium in the case. There are 32 judges at the Court of Session, and more than 20 of them know me personally. They include Lord Cameron of Lochbroom, who had to resign. He remembers my telling him years ago, when he was Lord Advocate, about Kenneth Ross's behaviour. When the records were checked, they revealed that Lord Cameron had ordered a personal investigation into Ross's conduct, which was covered up. My case was considered by a senior judge, a junior judge and a retired judge. They made it clear that a sheriff cannot sit in an area where he has been involved with clients and cannot deal with cases involving them.
Are you saying that a sheriff cannot sit in an area where he has previously worked?
He cannot. I have taken up the case with the Scottish Executive and have asked it to ask the Lord President for directions. However, the Executive refuses to do that, on the ground that it is awaiting the outcome of my case. Although the Executive is well aware that every civil and criminal case that Mr Ross has dealt with since he went to Dumfries will have to be quashed, it says that it will await the outcome of the case before taking any action against him.
Are you involved in an on-going legal action?
Yes.
Is that against Mr Ross?
No. It is against Dumfries and Galloway Council, to which Mr Ross granted the illegal decree, but it involves Mr Ross. The case details his past conduct. Everything is there.
Is that legal action separate from the question of the appointment of judges?
No. The petition takes up the fact that Mr Ross cannot sit as a sheriff, under the Declinature Act 1594 and the Declinature Act 1681. I have referred judges to much past authority and I am aware from clerks that the court has made representations to the Scottish Executive, which it has ignored, as it awaits the outcome of the case.
It is important that we understand the position. Does the current legal action involve the question whether Mr Ross should have been appointed as the sheriff at Dumfries and Galloway sheriff court?
Yes.
If the matter is before the courts, it is difficult for us to become involved. We can ask about the general issues that the petition raises, but we cannot become involved in the case.
The point of the petition is to declare that the illegal decree that Mr Ross granted was indeed illegal. The petition also highlights the fact that he should not have been presiding over my case in the first place.
I am sorry, but we are treading on dangerous ground.
The Sheriff Courts (Scotland) Act 1971 allowed the Secretary of State for Scotland to ask the Lord President to conduct an investigation. That happened in the case of Sheriff Stewart. Lord Hope and Lord Ross conducted an investigation, which was referred to the Secretary of State for Scotland, and Stewart was removed. My point is that the courts made it clear in my case that Ross should not be in his post. The matter is up to the Scottish Executive, which refuses to deal with it.
That is not the subject of the petition. From now on, we cannot deal with whether Mr Ross should be in Dumfries and Galloway sheriff court. That is a matter for on-going legal action, which has nothing to do with the committee. We can address only the general issues about the appointment of sheriffs. We cannot deal with the case, which is sub judice. It is as simple as that.
I will return to the point that Dorothy-Grace Elder and Dr Ewing raised. Why should not a sheriff be appointed to the court in which they practised? Dr Ewing has given good reasons for doing that practice, while Dorothy-Grace Elder talked about its disadvantages. If we forget Sheriff Ross, why do you feel that a sheriff should not sit in his home court?
I feel that for one reason only. If it is unlawful for him to be appointed, all the cases that he handles will have to be recalled. That is not good for Scottish justice.
Any sheriff who was a practising solicitor could have been involved in many cases that he deals with at some stage as a sheriff. That is a fair point that I would like to be put to the Scottish Executive.
No.
Given that this is a public meeting, I suspect that if you stick to that line, a libel charge could be made.
I was only—
I want to move on to my next question. Are you concerned by the fact that someone can appoint themselves as a commissioner to look after the affairs of a sequestration, even though they had been involved in the situation leading up to the sequestration? I ask you to avoid commenting on Mr Ross.
It was Mr Ross who caused the sequestration by failing—
A solicitor caused the sequestration and was then appointed as administrator?
He was sitting as a commissioner for 17 years with a solvent estate and surplus—
All right, Mr Duff, but I am trying to move away from that. Let us say simply that a solicitor was involved in the sequestration of your company and that the same solicitor was then appointed to manage it—
Yes. He kept information back from the sheriff.
Would it be fair to say that you are concerned about that and that you want to communicate those concerns to the committee?
Yes. Mr Cooney is also concerned about it.
I have taken advice from the clerks. The position is that there is protection for witnesses who appear before the committee and, indeed, anyone who participates in the work of the committee. However, we are not certain that that protection covers statements that may be libellous.
I am talking about how the appointment was granted to Mr Ross by the minister. Did he give the minister the information that he had acted as a sheriff for 20 years?
I must rule that we cannot get involved in the individual appointment of Mr Ross. That issue is simply beyond the powers of this committee, especially as the matter is already sub judice and before the courts. All that we can deal with is the general question of whether the system for appointing sheriffs should be reformed or whether the Executive is reforming that system in the appropriate way. That is the issue that we must address.
Thank you for hearing me.
The suggested action explains that we simply cannot become involved in the specific case of the appointment of Mr Ross to Dumfries and Galloway sheriff court. However, we can write to the Executive to ask for its views on the more general issues that the petition raises. We could ask for an update on developments on the proposed independent judicial appointments board that the Executive is promoting. We can also ask the Executive whether the issues that the petitioner raises are likely to be considered by the board when it determines its procedures and criteria for judicial appointments.
I agree with the action that the convener has suggested. I also welcome the fact that a judicial appointments board will be appointed. However, I have strong concerns about the potential conflicts of interest, which is the general issue that has been raised and on which we should ask the Scottish Executive to comment. We are all—MSPs and councillors right across the range—obliged to be careful not to get ourselves into a position in which we might have a conflict of interests. I endorse that general point.
Is it agreed that we include in our letter to the Executive a suggestion that it comment on the potential for conflicts of interest where sheriffs are appointed to sheriffdoms in which they have acted for many years as solicitors?
That is fine, but I would also like us to ask a general question on whether someone can be appointed as a commissioner for an individual's sequestration when they have been involved in that individual's case beforehand. There may be a conflict of interest in that.
Under conflict of interest, we will also ask the Executive to comment on whether solicitors who have previously been involved in a sequestration by representing the clients should be able to be appointed as commissioner for that sequestration. Is that agreed?
We shall write to the Executive in those terms. We will address the petition again when the reply comes in.
Planning Legislation (PE484)
Petition PE484 from Mr and Mrs Shields asks the Parliament to investigate the failure to take action on maladministration allegations in relation to planning issues due to the non-clarity of the legislation. From the papers you will see that the petitioners complained to the ombudsman about maladministration by the council in respect of the planning application. The ombudsman told the petitioners that he was unable to investigate their complaint because there was a right of appeal to the Scottish Executive inquiry reporters unit.
Sex Offenders (Home Office Project) (PE486)
Petition PE486, from Mr John Dick, calls on the Parliament to note the progress of a Home Office project to help sex offenders to avoid reoffending, and to note the work of the Scottish Quakers in applying the principles of that scheme in Scotland. The petition also calls on the Parliament to consider the possible application of the scheme in Scotland.
Are there any other bodies currently working in the field? What areas of overlap might there be?
In Scotland?
Yes.
You want to ask whether there are any other bodies in Scotland doing work in the field and whether that work corresponds to the work that has been suggested in the petition.
Local authorities have particular responsibilities and might welcome such outside interests, so it might be useful to seek views on the matter from local authorities.
The petition mentions Canada. We should also consider America, where I believe some imaginative work is going on and there is a good programme of rehabilitation for sex offenders.
So, as well as asking the Executive for information about any other bodies that are involved in work that corresponds to the work of the Quakers, we should ask whether it has learned any lessons from the experience in Canada and America. Phil Gallie has also suggested that we ask the Convention of Scottish Local Authorities to comment on the petition.
Yes, because local authorities have related responsibilities.
We could also approach the Scottish Prison Service. The Quakers' offer of help, through a scheme that has worked well in England, comes at a time when there is a threat to Peterhead prison, which is the number one unit in Scotland for the rehabilitation of sex offenders. The mainstream Scottish prisons, such as Barlinnie, do not want sex offenders back. They want them to be sent to the specialist unit at Peterhead.
As the issue is the treatment of people once they have left prison, it may not be relevant to the situation at Peterhead.
Peterhead has a good scheme that links into the community after people have left prison.
The Scottish Prison Service is suggesting that Peterhead should close, so it might not be sympathetic to the petition. However, I am sure that we can ask the Executive to comment on any potential implications for the proposed closure of Peterhead prison.
A body of prison visitors is already engaged in rehabilitation. Could we ask for its view?
Do you know the name of the organisation?
I think that it is called the National Association of Prison Visitors. I know people who are involved in it.
Okay, we will ask for that organisation's comments on the petition.
Political Process (Young People) (PE487)
The next petition is also from Mr John Dick. He wants the Parliament to take a range of steps to encourage young people to become engaged in the political process and adult society. He recognises that the Parliament is already doing valuable work in that respect, but he asks specifically for every 17-year-old in Scotland to visit the Parliament and be welcomed by their constituency MSP; to receive a personalised book about the Parliament, a video of its opening ceremony and other items from the visitor centre; to register as a Y voter; to visit Edinburgh Castle; and to receive a voucher for a free kilt or other tartan garment, such as a skirt or turban, or emblematic jewellery.
I am full of admiration for what is being done for the schoolchildren who visit the Parliament. Visits depend on the willingness of teachers. Teachers do not have to bring schoolchildren here, and it is quite nerve-wracking for the teachers to have to keep count of the children—particularly the younger ones. I have often seen teachers' harassed faces near the chamber. Participation in visits depends on teachers volunteering to carry out the programme. Maybe we should ask the Educational Institute of Scotland for the views of teachers on the subject.
Do you seriously think that we should approach the EIS?
There is no point in us pontificating on giving kids a right to come to the Parliament when we know that such visits depend on the teachers' willingness to bring them.
We have to respond to the petitioner, who asks for a series of actions to be taken. I detect that most members do not believe that the suggested series of actions should be encouraged, apart from that of trying to involve younger people in a more meaningful way in the electoral process. That is why we suggest writing to the Electoral Commission, which now has an office in Scotland, as it should deal with the issues that are raised in the petition. I do not detect any need to do anything further at this stage.
The clerks have outlined our participation with young people well. The Parliament must be congratulated on the work that it has done, although that is not to say that there is no room for improvement.
We are most definitely not in the business of handing out free kilts and turbans. I think that the petitioner is unaware of just how excellent the education service is already. Even under the difficult conditions that are caused by the spread of buildings in the Parliament's campus, every MSP would praise the service, the patience of the parliamentary staff and the marvellous behaviour of the schoolchildren. I sometimes get a wee bit worried when schoolchildren come to the Parliament on a Thursday afternoon and see extremely bad classroom behaviour from MSPs at question time.
Speak for yourself.
I enjoy my bad behaviour.
I detect that members agree to the recommendation that we should write to the Electoral Commission.
Scottish Government (Accountability) (PE488)
PE488 is also from Mr Dick and is on the accountability of the Executive. He is concerned about the Executive's accountability to the Parliament because that accountability depends on the adequacy and quality of information that is provided by civil servants to committees and MSPs. He believes that the Executive is failing to adapt to the devolved system or to effect changes in a civil service culture that remains in tune with the culture of the Westminster Parliament.
Mr Dick is to be congratulated on spending his time in Stornoway so intellectually.
Absolutely. He obviously has the best interests of the Parliament at heart—that is to be encouraged these days. Do members agree with the suggested action?
Afghan Prisoners (PE489)
The next petition, which calls for a debate on the treatment of Afghan prisoners in the USA, is from Mr Ivor Birnie and has 36 signatures. The petition is presented on behalf of the Edinburgh stop the war coalition and was prompted by the coalition's concerns about the imprisonment and treatment of Afghan captives in the USA which, the coalition claims, contravene international agreements.
Paedophiles (Sentencing) (PE490)
The next petition is PE490 from Ms Jacqueline Reid. The committee documents say that the petition has only one signature, but in fact a significant number of signatures were subsequently submitted in support of the petition, which came to the Parliament via Anne Begg MP. Members will see that the petition has the support of Anne Begg, Frank Doran and Malcolm Savidge, who are all MPs. The petition calls on the Parliament to take the necessary steps to amend existing legislation on the sentencing of convicted paedophiles or to introduce new legislation to ensure tough sentencing, with a minimum sentence for repeated convictions.
I have a quick point. Although I recognise the objectives of the Criminal Justice (Scotland) Bill with respect to minimum sentencing for repeated convictions, it is sad to think that there is a need for that—even though I recognise why there is a need. I am concerned about the maximum sentences that can be handed down. I would like an assurance that there is no ceiling on the sentences that courts can hand down.
We will ensure that your comments are referred to the Justice 2 Committee, which will be dealing with the petition.
HMP Peterhead (PE494)
The last of the new petitions is PE494, which is from prisoners in HM Prison Peterhead. It calls on the Parliament to urge the Scottish Executive not to close Peterhead prison, and to provide a new, safer, modern unit where prisoners can continue to rehabilitate. They are concerned about the potential impact of the closure of Peterhead. They argue that the environment at Peterhead is much more conducive to the successful rehabilitation of offenders. They distinguish between the situation in Peterhead prison, which provides a safe environment where inmates are treated with dignity, and the situation in local prisons, where offenders and their visitors have been subjected to threats of violence, intimidation, humiliation and bullying at the hands of fellow inmates and prison staff.
Will we write to the petitioners? I have a number of suggestions.
It is our role to keep the prisoners informed of the petition's progress.
In that case I would like to make three points about what we should say to them. One of the Parliament's security guards worked for the Scottish Prison Service for 34 years—perhaps members know him. He spent most of his time in Peterhead and later moved to Saughton; he has enormous experience. When I discussed the issue with him from the point of view of prison officers, he said that the only place in Scotland where a sex offender can have what he would call a life is in Peterhead, because in other prisons in central Scotland they have to be locked up for almost 24 hours a day in the interests of their safety. In Peterhead they have a life of some sort, and if they have any kind of life they might be subject to rehabilitation, which is the aim of it all. We must recognise that sending such offenders to any other prison is a disaster. The petition is politely worded, but behind it all is rampant fear.
It is important that the Justice 1 Committee is aware of your points. I think that members across the committee share those views.
Not quite. I agree with rehabilitation, but I also think that prison is a punishment and part of the punishment for some of those individuals is to be despised by their criminal colleagues. If that makes life in prison uncomfortable for them—without violence—it is part of the deterrent factor. That life in prison might be uncomfortable for prisoners is the least persuasive argument that I have heard for the retention of Peterhead, although there are many good arguments from other sources.
It is the violence that worries me.
The potential for violence worries me, too. I know that Barlinnie, which I have had contact with for many years, was very glad that Peterhead could take offenders on its special course—of course, Barlinnie has its own rehabilitation programme. The provision for sex offenders at Peterhead defuses the general prison situation in Scotland. I hope that, in the flurry and hurry of the day, the Justice 1 Committee does not ignore the fact that the petition is extraordinary. Where else have we heard of prisoners praising their jail and appealing for it to remain open? It could be a world first.
I sat in on the debate last Thursday and I know that the convener of the Justice 1 Committee has invited any member of the Parliament to sit in on that committee's evidence-taking sessions over the next few weeks. The main issue that came up last week was privatisation. Just about every person who spoke in the debate separated out privately building a new prison from privately running that prison. I suspect that the comments of Winnie Ewing and Dorothy-Grace Elder have to do with the issue of privately running a prison. The point that came out of the debate was that it would be morally reprehensible for the state to take away someone's liberty and put them into the hands of someone who could profit from the removal of their liberty. Certainly, a prison should be run by the public sector. However, Jim Wallace's point was important: we have signed up to the European convention on human rights, which means that we were supposed to have ended the practice of slopping out by 2000. That means that we need to have new prisons built. Jim Wallace pointed out that it would take up to 13 years to have a new prison built under the public sector but only three years under the private sector. I am not qualified to judge whether that statement is right or not. It disappoints me that the public sector cannot meet the targets sooner than that, but that is a debate for another time.
On a point of accuracy, the moderator of the General Assembly of the Church of Scotland was very positive about the private prison in Kilmarnock and said that that balanced his views. However, I do not think that that has anything to do with the petition.
In any case, to ensure that both the petitioners and the Justice 1 Committee are aware of the range of views within the committee, we will send a copy of the Official Report to them.
Next
Current Petitions