Convention Rights (Compliance) (Scotland) Bill: Stage 2
We now move on to the Convention Rights (Compliance) (Scotland) Bill, which we are considering at stage 2 for the first time. We will consider the bill in the order determined by the motion that members agreed to earlier.
I take it that members are familiar with the Parliament's method of dealing with stage 2. It is sufficient for me to say that amendments have been grouped to facilitate debate, but the order in which amendments are called and moved formally is dictated by the marshalled list. Members will need in front of them the groupings and the marshalled list. There will be one debate only on each group of amendments.
We will have a short pause while the minister and his team assemble.
Good morning, minister. I welcome you and your substantial team, which should certainly be able to answer any questions members have.
Section 5—Appointment and removal of Parole Board members
Amendment 56 is in a group on its own. I ask the minister to speak to and move amendment 56.
In the past, the Parole Board for Scotland has had occasional problems when witnesses have failed to respond to invitations to attend hearings. That hampers the tribunal's task of assessing risk.
Section 20(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 confers powers on Scottish ministers to make rules on the Parole Board's proceedings. Amendment 56 would extend that power and allow the Scottish ministers to use the rules to make it an offence for a witness who has been required to attend a hearing of the Parole Board to give evidence to refuse to attend or wilfully to neglect to attend, or for a person who is required to produce a book or document or who is liable to be required to produce the same wilfully to alter, suppress, conceal, destroy or refuse to produce any such book or document.
The maximum penalty for such an offence would be a fine at level 2 on the standard scale.
I move amendment 56.
I have a marginal point. Can the minister define the types of person he envisages would attend the board? For example, the committee discussed whether victims might attend the Parole Board. Could the Parole Board insist that someone who has been a victim of a crime some years ago should attend to give evidence?
Before the minister answers that, we will take other questions. No, the member who indicated that he had a question has changed his mind. If members have no other points to raise, the minister may sum up.
It would be for the Parole Board to say who, or what documents, it needs to see. It would depend on the circumstances. Social workers, psychologists and people who give professional advice to the board are the kind of people who are likely to be covered, if the committee agrees to amendment 56.
Given the minister's reasoning, I accept that that point is important, but the amendment's scope seems rather wide. Will the minister consider whether the provisions of amendment 56 are marginally wide and whether he could be more specific at stage 3, given the fact that I go along with the examples that he has suggested?
I am happy to consider Phil Gallie's point and I will try to make some response at stage 3. What amendment 56 is attempting should be read alongside our work on the development of the victims strategy. In the strategy, we are considering, in close consultation with victim support organisations, victims' rights and requirements.
Amendment 56 agreed to.
Amendment 4 is also in a group of its own. I ask the minister to speak to and move the amendment.
Amendment 4 is designed to address one of the recommendations of the committee's stage 1 report. Section 5 provides for the appointment and removal of Parole Board members. Section 5(3) contains nine new paragraphs to be inserted into paragraph 2 of schedule 2 to the Prisoners and Criminal Proceedings (Scotland) Act 1993. Proposed new paragraph 2E provides that a person may be reappointed as a member of the Parole Board only if at least six years have elapsed since they ceased to be a member and they have not already been reappointed under the new provisions. The committee's stage 1 report on the bill stated that
"there would be merit in reducing the period from 6 to 3 years."
The rationale for the six-year gap was that it would avoid any appearance that a Parole Board member might show bias towards the Executive to secure reappointment. However, we are satisfied that a three-year gap is sufficient to remove any legitimate doubt about the independence and impartiality of members. We indicated at stage 1 that we would lodge such an amendment to reflect the points that the committee made.
I move amendment 4.
Amendment 4 agreed to.
Amendment 60, in the name of Phil Gallie, is grouped with amendments 62 and 63.
Amendment 60 seeks to delete the phrase,
"carried out at the request of the Scottish Ministers".
The bill is concerned with removing the powers of Scottish ministers and allowing tribunals to stand in their own right. On that basis, I query why we do not leave the tribunals to investigate on their own initiative.
I move amendment 60.
Does Phil Gallie want to speak to the other amendments in the group?
Amendments 62 and 63 follow along the same lines. They both refer to the involvement of Scottish ministers.
I differ from Mr Gallie on the purpose of the bill. The bill's purpose is not to remove powers from Scottish ministers, but to ensure compliance with the European convention on human rights and to set up processes that are effective, efficient and fair. Amendments 60, 62 and 63 would not be necessary to achieve ECHR compliance and would, I fear, fail to set up such processes. The amendments' effect would be to ensure that a tribunal rather than ministers would initiate an investigation into whether a member of the Parole Board was unfit for office. They would also allow a tribunal to determine its own procedure—including the duration of the suspension from office of a member who was under investigation and what effect that would have. We do not believe that that is necessary to achieve compliance with ECHR.
In light of the Starrs decision, we acknowledge that the current system of appointment, reappointment and removal of board members may not comply with article 6 of the ECHR. However, by setting up the tribunal we believe that compliance will be achieved. The bill mirrors the arrangements that were provided in the Bail, Judicial Appointments etc. (Scotland) Act 2000, in which we addressed a similar issue in respect of part-time sheriffs.
It is also worth saying that we have in mind an ad hoc tribunal, not a standing tribunal, so it is difficult to see how it could determine its own procedures. In order to set down those procedures, the bill requires that regulations be placed before the Parliament. Those regulations would be subject to the affirmative procedure, so they would be subject to the scrutiny of the Parliament. That seems to be desirable to us, but it would be lost if amendments 60, 62 and 63 were agreed to. I therefore ask Mr Gallie to withdraw amendment 60 and not to move amendments 62 and 63.
Before I do so, I would like the minister to describe for the record how precisely that tribunal would be set up.
The tribunal would be set up if there were a case for it to consider. Appointments to the tribunal would be the responsibility of the Lord President of the Court of Session. It would not be a standing committee; it would deal with particular instances as they arose.
Amendment 60, by agreement, withdrawn.
Amendment 5, in the name of the minister, is grouped with amendments 61 and 23.
Executive amendment 5 is designed to address one of the recommendations that was made by the committee in its stage 1 report. Section 5 of the bill makes provision for the appointment and removal of parole board members. Section 5(4) would replace the original paragraph 3 of schedule 2 to the Prisoners and Criminal Proceedings (Scotland) Act 1993 with new paragraphs 3, 3A, 3B, 3C and 3D, which detail the conditions under which a Parole Board member may be removed from office, by providing for a tribunal that may order a member's removal if, after investigation,
"it finds that the member is unfit for office by reason of inability, neglect of duty or misbehaviour."
New paragraph 3B would fix the membership of the tribunal and, as we have just discussed, it would provide that the Lord President of the Court of Session appointed them. The three members must be:
"(a) either a Senator of the College of Justice or a sheriff principal, (who shall preside);
(b) a person who is, and has been for at least 10 years, legally qualified;
(c) and one other person."
The committee's stage 1 report stated that the committee saw no good reason why it should not be stated specifically that the "one other person" should not be legally qualified. Since it had always been the intention that the other person would be a layperson, we are happy to amend the bill to reflect that.
Mr Gallie's amendment 61 goes further and would place unnecessary restrictions on the power of the Lord President to appoint appropriate members of the tribunal. We consider that there is nothing to be gained by excluding those who have law enforcement or social welfare experience, provided that such persons are not legally qualified. I hope that Mr Gallie will not move his amendment.
Mr Matheson's amendment 23 seeks to expand the definition of someone who is qualified as a lawyer to include one who is registered under the European Communities (Lawyer's Practice) (Scotland) Regulations 2000 (SSI 2000/121). Those regulations allow lawyers from other European countries to register with the Law Society of Scotland or the Faculty of Advocates and to carry out certain professional activities in Scotland under their home professional title.
For two reasons, we do not believe that such lawyers should be eligible to sit as the legally qualified member of the removal tribunal. The purpose of requiring the second member of the tribunal to be an advocate or a solicitor who has been legally qualified for at least 10 years is to ensure that the member is familiar with Scots law and with the process of judicial decision-making in Scotland. That would not necessarily be the case with a registered European lawyer. We believe also that registered European lawyers are not disbarred by section 5 of the bill, because they may apply to enter the professions of solicitor or advocate without undertaking any further qualifications, provided that they have been registered for at least three years and have effectively and regularly pursued professional activities in Scotland. It is therefore possible that a registered European lawyer could become a member of the tribunal. On that basis, I hope that Michael Matheson will consider not moving his amendment.
I move amendment 5.
I am delighted that the minister has lodged an amendment to clarify the point that the third member of the tribunal will not be a legally qualified person. The thinking behind my amendment was that many individuals who have had professional involvement in either law enforcement or social welfare matters will have firm and fixed views. I believe that a degree of flexibility could be lost by their inclusion on the tribunal.
The minister used the term "layperson". That layperson should not have been involved in any way with the process.
Amendment 23 was intended as a probing amendment. I listened to what the minister said and I am reassured that European lawyers who choose to become solicitors or advocates will not be disbarred from the tribunal, should they want to become involved. I am satisfied with what the minister has said.
I want to ask for clarification of the definition of "legally qualified". Does that include only people who have a practising certificate or does it include people who gained a law degree in the past?
The relevant qualification would be a practising certificate.
Mr Gallie said that individuals who have had professional involvement in either law enforcement or social welfare matters might have firm and fixed views. The reverse of that would be that, equally, they might have profound experience and understanding that would be valuable in the work of the tribunal. The decision about who would be an appropriate and effective member of the tribunal would lie with the Lord President of the Court of Session. The existing requirements probably circumscribe his choice enough without it needing to be reduced any further. That is why we oppose Mr Gallie's amendment.
In that case, on the basis that amendment 5 might rule out my amendment, I will not vote for it.
The question is, that amendment 5 be agreed to. Are we all agreed?
No.
There will be a division.
For
Alasdair Morgan (Galloway and Upper Nithsdale) (SNP)
Gordon Jackson (Glasgow Govan) (Lab)
Maureen Macmillan (Highlands and Islands) (Lab)
Paul Martin (Glasgow Springburn) (Lab)
Michael Matheson (Central Scotland) (SNP)
Mr Jamie Stone (Caithness, Sutherland and Easter Ross (LD)
Abstentions
Phil Gallie (South of Scotland) (Con)
The result of the division is: For 6, Against 0, Abstentions 1.
Amendment 5 agreed to.
Amendments 61 and 23 not moved.
Amendment 24, in the name of Michael Matheson, is grouped with amendment 26.
The intention of amendment 24 is to ensure that Scottish ministers will consult interested parties before making regulations that specify the procedures that are to be followed by the tribunal. The tribunal will perform an extremely important function in determining whether members should be removed from the Parole Board. That procedure has to be workable, transparent and clear. It is on that basis that it is essential that we have a commitment from the Executive that there will be a proper consultation of interested parties before regulations are made. That will ensure that those who will be affected by the procedures have had an input in the process.
I move amendment 24.
The amendments seek to ensure that Scottish ministers may not make regulations regarding the powers of the tribunal and the procedure to be followed by and before the tribunal, until they have undertaken consultation. The Executive would not demur from the principle that underlies the amendment, but we contend that it is neither necessary nor appropriate for the point to be included in the bill. Amendment 26 would insert into section 5(4) the requirement to undertake consultation. That section sets up the tribunal that would consider the removal of Parole Board members from office, and section 7 of the bill provides for Scottish ministers to prescribe in regulations the specific circumstances in which a case may be exempted from the fixed-payment scheme. In both cases, however, there is an obligation to consult.
We have already undertaken to provide, prior to stage 3, a draft of the relevant Parole Board regulations. That will give members the opportunity to comment. I can confirm that it is our intention to invite other interested parties—including the Parole Board, the Lord President, and sheriffs principal—to comment on the regulations, which will be laid later this year.
On fixed payment regulations, the Deputy First Minister has already made it clear that we recognise the importance of consultation. We will proceed with drafting regulations as soon as the bill has been passed. We will consult interested parties on those draft regulations, prior to laying them before Parliament.
Legal aid issues are also discussed regularly with the tripartite group that includes the Scottish Legal Aid Board, the Executive and the Law Society of Scotland. We also consult regularly on statutory instruments under the Legal Aid (Scotland) Act 1986. There appears to be no justification for singling out the new subordinate legislation power on legal aid as the only one in the bill on which something is said in statute about consultation. We fear that amendment 26, by insisting on consultation but not specifying who should be involved in that consultation, would also lay us open to the danger of a lack of clarity as to how wide consultation would be.
It is unnecessary to make express statements about consultation in the bill, given the general commitment to and practice of consultation in preparing and making regulations. I hope that members feel able to accept my guarantees that consultation will take place. On that basis, Mr Matheson might consider withdrawing amendment 24 and not moving amendment 26.
Can the minister clarify that the regulations for the tribunal process that are to be published before stage 3 will be draft regulations?
They will be an advance copy of a draft of the regulations.
Will there be an opportunity before stage 3 to discuss the regulations in greater depth, if there are points that need to be considered?
Yes, there will be.
Amendment 24, by agreement, withdrawn.
Amendment 63 not moved.
Section 5, as amended, agreed to.
Section 6—Extension of advice and assistance and civil legal aid under Legal Aid (Scotland) Act 1986
I call Phil Gallie to speak to and move amendment 64, which is grouped with amendments 65, 6, 7, 66, 67, 68, 69, 70 and 71.
Amendment 64 refers to the
"Extension of advice and assistance and civil legal aid",
which, if the section were passed as introduced, would allow legal aid to be granted for tribunals in Scotland.
The tribunal system has benefited from the fact that the people who are involved in it tend not to be legally qualified—solicitors have been kept away from the tribunal system to an extent. When I say that those who are involved are not legally qualified, I do not mean the chairmen of tribunal panels, who are legally qualified. Tribunals tend to be more of a negotiating or arbitration arrangement that is not adversarial, as the courts tend to be. If we include solicitors and, perhaps, other legally qualified people in the tribunal service, we will lose that underlying aspect of the service. That gives me some concern.
It is for that reason that I lodged amendments 64 to 71. I am grateful to the clerks for putting me right on the amendments to ensure that I covered everything in the section. I have some concerns and I will listen to what the minister has to say about them.
I move amendment 64.
As members are aware, Scottish ministers, in fulfilment of their obligations under article 6 of the ECHR, consider that they should make civil legal aid available where a court, a tribunal or any other proceeding is determining civil rights and obligations in certain clearly defined circumstances. Those circumstances are: where the applicant cannot fund or find representation; where the case is arguable; and where the case is too complex to be presented to a minimum standard of effectiveness by the applicant. It is not the intention of section 6 to lose the non-adversarial characteristics of certain tribunals, which have been advantageous.
We feel unable to support amendments 64 to 71 on two counts. First, they are somewhat inconsistent. They attempt to remove all references to tribunals from section 6 of the bill, but many other references to tribunals in the Legal Aid (Scotland) Act 1986 would still remain. In fact, some of the changes that are proposed by amendments 64 to 71 are to interpretation provisions of that act. They would therefore leave doubt as to how references elsewhere in the act were to be read.
More importantly, we believe that amendments 64 to 71 would be contrary to our policy objective for section 6, which is to allow Scottish ministers to make legal aid available for any proceedings, including those before tribunals, where there is or may be an ECHR requirement to do so.
I will speak briefly to Executive amendments 6 and 7 in the grouping. Section 13(5) of the 1986 act prevents ministers from extending civil legal aid under schedule 3 to proceedings in a court and tribunal
"before which persons have no right to be and are not normally represented by counsel or a solicitor".
That is an unnecessary restriction, as we cannot be sure that there will not be bodies in that category for which we may need to make legal aid available in future. Amendments 6 and 7 would therefore delete section 13(5) of the Legal Aid (Scotland) Act 1986.
I therefore ask Mr Gallie to consider withdrawing amendment 64 and not pressing his other amendments in the group.
Agreement to amendment 7 will pre-empt amendment 66.
Has the minister attempted to determine the extent of the extension of civil legal aid? How much further will it be extended? To how many tribunals will it be extended?
Has the minister given any consideration to costs? It is important to consider costs when debating a bill. Costs have an effect on other activities in the civil law scene in Scotland. It is my understanding that there is a ceiling on the civil law budget and the measures in the bill will have a direct effect on that budget.
The extension is substantial. As tribunals are not defined in the bill, can the minister give a list of the tribunals that might fall within the remit of the measures?
Mr Gallie raised two separate but related points: cost, and the extent of the effect of the bill.
We have, of course, considered the potential cost. We believe that the legal aid cost increases will not be substantial and significant. I point out that that was one of the factors that had to be considered in the preparation of the financial resolution, which was passed by the Parliament at stage 1 of the bill. In a sense, the Parliament has considered and accepted the costs.
The extent of the tribunals to which the extension will apply has been discussed at some length in committee and plenary debates at stage 1. We have given an undertaking to construct an initial list and to consult interested bodies as to which tribunals should be on that list.
I have a letter that has been sent out. It would indicate to the committee which bodies we have approached. That at least, would give some indication of the size of the net that we are casting. I would be happy to provide members of the committee with copies of that letter at the end today's proceedings, if that would be helpful.
Does the minister feel that it would be appropriate, at the end of the consultation to which he referred, to include that list as a schedule to the bill, perhaps at stage 3?
The answer is that that is not appropriate, partly because we are not attempting to produce an exhaustive list for all time. We believe that that would not be helpful in future, and we would not want to have to return to the matter constantly if we wanted to extend the provisions of the legislation to cover other tribunals. That has always been the basis of the discussions over the list that has been compiled, with the commitment that we will do that before stage 3.
I am still concerned about the matter. We are opening up a minefield and creating problems that could produce less clarity in the future and bring about a lot of argument, concerning who is entitled to civil legal aid. The minister's comment that there is no need for a list because he does not want to be constrained is not consistent with other arguments that he has used for the introduction of statutory instruments to cover such matters in future. The bill grants ministers the right to use their initiative to introduce such instruments. If that base list were included in the bill at an early date, there would be nothing to stop the minister adding to it in future.
The question is, that amendment 64 be agreed to. Are we agreed?
No.
There will be a division.
For
Gallie, Phil (South of Scotland) (Con)
Against
Jackson, Gordon (Glasgow Govan) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Matheson, Michael (Central Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
The result of the division is: For 1, Against 6, Abstentions 0.
Amendment 64 disagreed to.
Amendment 65 not moved.
Amendments 6 and 7 moved—[Iain Gray]—and agreed to.
Amendment 66 is pre-empted.
Amendments 67 to 71 not moved.
Section 6, as amended, agreed to.
Section 7—Fixed payments for criminal legal assistance: exceptional cases
Amendment 72, in the name of Phil Gallie, is grouped with amendments 73, 25, 74, 75, 27 and 28. If amendment 74 is agreed to, amendments 75, 27 and 28 are pre-empted. I call Phil Gallie to speak to and move amendment 72 and to speak to the other amendments in the group.
The other amendments in the group are consequential to amendment 72, which suggests something similar to what was suggested in earlier comments. We are currently taking ministers out of making judgments on criminal defence and interest matters, as they are effectively the prosecutors. By allowing ministers to judge whether additional funding is required for the defence, are we not cutting across that objective? In giving the board the right to determine whether additional funding is required, we would satisfy the principles of the European convention on human rights. As section 33(3C) of the 1986 act is currently worded, it creates non-compliance.
I move amendment 72.
I call Michael Matheson to speak to amendment 25 and the other amendments in the group.
Amendment 25 seeks to clarify the reason for providing time-and-line payments in exceptional cases and the adequacy of the fixed payment. There is a need for some clarification of that, as the evidence that the committee has received during its legal aid inquiry has not concerned the amount of aid so much as its adequacy for proper legal representation. As drafted, the bill fails to address that and seems more concerned with the amount than with the adequacy of it. Amendment 25 seeks to provide that clarification.
Amendment 27 is a probing amendment, which seeks clarification of the conditions that are listed under section 33(3C)(b) of the 1986 act. I would welcome the minister's comments on that issue.
Amendment 28 addresses the issue of solicitors being obliged to keep time-and-line records for professional services that they have provided up until the point at which a case may be considered exceptional, after which time-and-line payments replace a fixed payment. The bill would require solicitors to keep records up until the point at which they find out whether the payment will be time-and-line. Although the case may be taken on for a fixed payment, the solicitors will have to keep records throughout its process, as the payments for the case may then move to a time-and-line basis, for which they will be required to keep records.
Amendment 28 tries to remove some of the burden on solicitors who are uncertain whether they will receive time-and-line payments. A fixed payment is a one-off payment for that function, and they accept that. However, at present, the bill would force them to keep accurate records on a time-and-line basis up until the point at which a decision is made whether to classify the case as exceptional.
Michael Matheson's point is a wee bit pedantic. One can hardly imagine a person not getting a fair trial because his lawyer has been paid too much. The issue obviously concerns the lack of payment rather than excessive payments.
The issue is the adequacy of payments. I could say—
Hang on. We are not having a question-and-answer session across the chamber.
I do not know what the minister's view is, but I cannot help but think that the adequacy of payments is superfluous to the matter.
As drafted, the bill concentrates on the amount of legal aid, which might not be adequate to serve the purpose. Amendment 28 is intended to provide clarification that it is not simply the amount that should be considered, but whether that amount is adequate.
I will not argue with Gordon Jackson on the issue of the adequacy of payments to the legal fraternity.
We feel that amendment 28 is unnecessary. By having regard to the amount of the fixed payment, the board will inevitably consider the sufficiency of that payment in the circumstances that are set out in the regulations. Those are likely to include not only preparation costs, but the complexity of the case, the number of prosecution witnesses and the geographic location of witnesses. We feel that the point that Mr Matheson makes is covered in the bill and that amendment 28 is unnecessary.
We feel that the drafting of the paragraph that amendment 27 addresses is clear enough. New section 33(3H) provides the Parliament with a more detailed list of the conditions that can be included in the regulations under section 33(3C) of the 1986 act. We envisage that those will be the sort of conditions that would normally be included in such regulations. The current wording—
"The conditions that may be prescribed … include"—
makes it clear that it is not an absolute requirement that those that are listed need always appear.
New section 33(3H) sets out three conditions that are included. One of those conditions is that solicitors should keep proper records of all professional services, provided that an outlay is incurred, whether they are provided before or after the board determines that the case should be removed from the fixed payment scheme. Amendment 28 seeks to amend that subsection. I understand why members might feel that that requirement is unnecessarily bureaucratic; however, it is essential that the board is provided with proper records before payment is made from the fund.
The essence of the new system that is being introduced is that payment on a time-and-line basis can be made only where there are proper records to justify such payment. Accordingly, a solicitor who believes that a new case may justify an application for exemption from the fixed fee regime will be under an obligation to keep full records from the outset. If, at a later point in the case, the solicitor reaches the conclusion that the fixed fee will suffice, they can abandon detailed record keeping in that case. However, it seems to us that it would not be acceptable for a solicitor to make application at a very late stage in proceedings and then expect to be paid on a time-and-line basis in respect of prior work for which no proper records had been kept. Clearly, ministers have a responsibility to ensure that the funds available for legal aid are used fairly and properly.
In relation to amendments 72, 73, 74 and 75, I should point out to Mr Gallie once again that the central purpose of the bill is not to remove powers from ministers, but to ensure compliance. As he explained, the amendments would leave the Scottish Legal Aid Board with the responsibility of determining what constituted an "exceptional case". I believe that it is more appropriate for the Scottish Legal Aid Board to administer the legal aid budget within clearly set parameters. That seems only right and fair to the board. The most transparent way to provide such parameters is to make regulations. That leaves the power with ministers, but also ensures that the regulations will have the scrutiny and agreement of the Parliament. The amendments would seem to remove any review of the board's decisions; that seems quite draconian and would be considered unfair by the legal profession.
I invite Mr Gallie and Mr Matheson to consider not pressing their amendments.
I am delighted to hear the minister's comments on the responsibilities of the Scottish ministers, which are aligned with my own. No doubt we will return to that point when we debate part 1 of the bill.
Amendment 72, by agreement, withdrawn.
Amendments 73, 25, 26, 74, 75 and 27 not moved.
I want to return to the subject of amendment 28 at stage 3. I am not entirely satisfied by the minister's comments on the issue. An undue burden might be placed on solicitors who may consider applying for cases in exceptional circumstances, and the provision could act as a deterrent to such applications.
Amendment 28 not moved.
Section 7 agreed to.
Sections 8 and 9 agreed to.
Section 10—Repeal of section 13(2)(a) of the Criminal Law (Consolidation) (Scotland) Act 1995
Amendment 76, in the name of Phil Gallie, is grouped with amendment 90.
Amendment 76 removes section 10, which refers to group homosexual practices. I must accept, as the committee accepted when it expressed great sympathy with some of the representations that were made to us at stage 1, that, whether we like it or not, there must be equality. If we accept the status quo, part 4 of the bill is necessary. However, my argument is that the Executive and the Parliament have a responsibility to the health of the nation. That is represented in many ways—through the food agencies and by ensuring that unhealthy practices are not encouraged and condoned. Group sexual practice of any kind is not something that is wanted in our society today. It puts our society at risk and is unhealthy.
On that basis, I ask the minister to give an undertaking to reconsider the matter and perhaps come back with a new part 4 to change the law in Scotland. Instead of being concerned with equalising homosexuality, the new part should create an offence of practising group sex of any nature—heterosexual or whatever—as that is not something that should be practised in our nation.
I move amendment 76.
I was pleased to note that the Justice 1 Committee and the Equal Opportunities Committee stage 1 reports strongly recognised the need for section 10, which repeals section 13(2)(a) of the Criminal Law (Consolidation) (Scotland) Act 1995.
In the case of A D T v the United Kingdom, the European Court of Human Rights ruled that the English equivalent of the section breached article 8 of the European convention on human rights—the right to respect for private and family life. In light of that judgment, there is no doubt that the repeal of the equivalent Scottish legislation is necessary to ensure compatibility with article 8. Indeed, in speaking to his amendment, Mr Gallie acknowledged that fact.
In our view, there is no option but to repeal section 13(2)(a) of the 1995 act. I cannot give Mr Gallie the undertaking that he has requested—not just because of the substance of the case that he put. What he proposes, which would be a more general review of legislation relating to sexual offences, is not the purpose of our committee meeting this morning—this is not the place to consider the Scottish Parliament's views on such matters. Our purpose today is to ensure that our law is compliant with the ECHR, and in order to do that, we must repeal section 13(2)(a) of the 1995 act. On that basis, I urge Mr Gallie to withdraw amendment 76 and not to move amendment 90, which follows from that.
I am disappointed by the minister's reply. He has simply re-emphasised the comments about justifying the requirements for part 4, which I had already acknowledged. I am suggesting that the Convention Rights (Compliance) (Scotland) Bill gives us an opportunity to re-examine the situation. I disagree with the minister's observation that we have no option; there is an option to include an alternative section, which would not need too much work and which would say that group sex of any kind is not condoned under the rule of law in Scotland. That is an opportunity that the minister could have taken to improve the health and aspirations of society in Scotland. The minister is missing an opportunity.
I will not press amendment 76, because I might want to propose an alternative part 4 at stage 3. I ask the minister to give the matter some consideration. It does not require a full review of the law on sexual activities; it requires a review of one area. That should not be beyond the minister's expertise, particularly given the support that the civil service provides.
Amendment 76, by agreement, withdrawn.
Section 10 agreed to.
Section 11—Appointment of procurator fiscal of the Lyon Court
Amendment 8, in the name of Jim Wallace, is grouped with amendment 9.
Amendment 8 concerns the central issue in the bill, and I know that the committee has been waiting for it.
Amendments 8 and 9 address one of the committee's recommendations in its stage 1 report. Section 11 amends the Lyon King of Arms Act 1867 to allow for the appointment of the procurator fiscal to the Lyon Court to be made by Scottish ministers, who are independent of the Lyon Court.
The committee's stage 1 report recommended that the bill should state expressly that the procurator fiscal should be legally qualified. That was always the intention, and I am happy to bring forward the amendments.
I move amendment 8.
Amendment 8 agreed to.
Amendment 9 moved—[Iain Gray]—and agreed to.
Section 11, as amended, agreed to.
Section 12—Remedial orders
Amendment 10 is in the name of Jim Wallace and is grouped with amendments 29, 30, 11 and 31.
Executive amendments 10 and 11 fulfil the commitment that was made by the Deputy First Minister and Minister for Justice at stage 1. The minister said that the introduction of a new general remedial power by part 6 of the bill would be subject to Scottish ministers having compelling reasons to use the remedial order route.
The general remedial power will extend the circumstances under which Scottish ministers can use subordinate legislation to remedy established or perceived incompatibilities with the ECHR. At stage 1, the Justice 1 Committee and the Subordinate Legislation Committee expressed concerns about the proposed scope of the power. The amendments are intended to address those concerns by applying a test similar to that in section 10(2) of the Human Rights Act 1998.
In addition to the Deputy First Minister and Minister for Justice's agreement to bring forward the amendments, he made it absolutely clear at stage 1 that the power was not intended to be a substitute for primary legislation. He also concurred with the committee's recommendation that the power should be used only in urgent cases and where subordinate legislation might be more appropriate.
There is no intention to override parliamentary scrutiny. The bill makes specific provision for the Parliament's role in scrutinising remedial orders. A procedure is set down that is similar to that laid out in the Human Rights Act 1998. In all except the most urgent cases, ministers will be obliged to lay a copy of any proposed order and a statement of their reasons for wishing to make the order before the Parliament, inviting comments. Ministers will be obliged to have regard to comments made before formally laying the final draft order for parliamentary approval. On laying the draft order, ministers must also lay a statement summarising the comments that have been made and specifying the reasons for any changes that have been made.
I hope that the introduction of amendments 10 and 11 reassures committee members that the powers will be used only in appropriate circumstances.
Amendments 29 and 30 in the name of Michael Matheson would remove the word "expedient" from section 12(1) and (2), which confer the power to make supplementary and transitional provisions. We must remain conscious of the different way in which the ECHR has been incorporated in Scotland relative to the functions of Scottish ministers. That is important as the amendments seem to have the effect of reflecting the wording that appears in section 10(2) of the Human Rights Act 1998.
Scottish ministers cannot act in a way that is incompatible with the convention, even where primary legislation appears to require or authorise them to do so. Ministers in the UK Government can. Against that background, we must have a reasonably wide-ranging set of powers to be able to rectify quickly legislation that, in the opinion of Scottish ministers, may not be entirely compatible with the convention.
In view of the proposed Executive amendments and the different constitutional position, we do not believe the amendments to be appropriate.
Amendment 30 in the name of Michael Matheson would remove the words "or may be" from section 12, page 12, line 30 of the bill and would, in effect, restrict ministers to using the remedial order route where a court had made a declaration of incompatibility.
We consider the amendment to be undesirable. It is essential that ministers are able to take action in circumstances where a court has not yet made a declaration of incompatibility. That may be necessary where litigation is pending before a court, for example, and the view is taken that the arguments are so strongly in favour of incompatibility that we require to act in advance of the court's decision, or where a court in England has ruled that legislation is incompatible but there is no such ruling in relation to the corresponding Scottish legislation.
It is important to remember that, unlike our counterparts at Westminster, Scottish ministers cannot simply continue to act on the basis that they are authorised to do so by primary legislation. They do not have the benefit of the defence that is provided by section 6(2) of the Human Rights Act. If every change in the law in Scotland to ensure ECHR compatibility has to await a specific court decision, Scottish ministers may be found to have acted unlawfully in the interim and be potentially liable for damages. I can think of many better ways to spend public funds.
I ask Michael Matheson not to move amendments 29, 30 and 31.
I move amendment 10.
Amendment 29 would allow Scottish ministers to use remedial orders as they currently stand but only when that is necessary to rectify an incompatibility with the ECHR, and not simply when it is expedient to use them.
The minister referred to the Human Rights Act 1998. I think that the Law Society's evidence to the committee highlighted that most of the bill reflects provisions within the Human Rights Act. Section 10(2) of that act states:
"If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility."
At no point in the Human Rights Act is reference made to expediency alone.
Amendment 29 seeks to ensure that the provision within the bill is a mirror reflection of what is in the Human Rights Act.
I take on board what the minister said about the need to be able to act urgently. It emerged in the evidence that a quick process can be used with the remedial order system and that there are provisions to act quickly if that is required. Amendment 30 ensures that the remedial order system will be used only when there is an incompatibility with the ECHR and not on the basis that there may be. There could always be a difference of opinion.
That takes me back to my earlier comments. I can understand that difficulties could be presented if ministers had always to wait for a court judgment, and the remedial order system is a mechanism whereby ministers can move urgently. A super fast-track system is available if required. The amendment does not aim to box in ministers. There are provisions if need be, but the amendments ensure that there is a greater reflection in the bill of sections in the Human Rights Act. Ministers should not be provided with powers on the basis that there may be an incompatibility or that it may be expedient to use those powers for whatever purpose.
I welcome the minister's amendments. It is obvious that some of us did not like the provision as it stood, as we felt that it lacked specification. I very much appreciate the fact that the Minister for Justice and Iain Gray are willing to change it.
Against that background, I will address Michael Matheson's amendments. I do not have much sympathy with amendment 30, which deletes the words "or may be". Such a deletion does not seem appropriate as the ministerial amendments mean that ministers will need to justify the necessity for making a remedial order. Indeed, the minister's argument about situations in which there has been no court determination justifies leaving in the words "or may be". Although it is still possible to argue that those words should not be used, I have no problem with leaving them in.
The minister will not be surprised to learn that I have some sympathy for amendment 29, which deletes the words "or expedient". However, I do not have enough sympathy for it to vote against the minister if it is thought appropriate to leave them in. My sympathy lies not so much with the principle, but with the array of advisers who draft these things. As far as drafting is concerned, the inclusion of the words "or expedient" is simply not my cup of tea; it is the kind of catch-all for which Governments and those who draft bills have a great liking as it allows them to bring in everything that might ever happen.
It is difficult to imagine a situation where it would be expedient but not necessary to make a remedial order, especially in the context of amendment 11, which proposes that ministers will make such an order only where they can show that "there are compelling reasons". If a Government is able to advance "compelling reasons" for making an order, that by definition would come under the category of necessity. It is not entirely clear where the words "or expedient" have relevance or meaning, and my legalistic view is that extra words in legislation are by and large not a good thing.
Without being over-technical, I should point out that I have much more sympathy for the second use of "or expedient", which amendment 31 would delete. In section 12(2)(c), we are past the decision to make a remedial order, and are now discussing what should be included in that order. There might be occasions when, if regulations are being amended anyway, it might be "expedient" to include things that are not strictly necessary. I invite the minister to think about those points. The word "expedient" does not fit equally well the two times that it is used in section 12. However, although I do not see the need for the word the first time, I will not go to the barricades over the matter.
I will ride to the minister's support. As section 12 is required in the bill for the reasons that the minister has fully explained, the last thing we want is to incur any delays that might bring our justice system into disrepute. In some recent situations, the effects of the incorporation of the ECHR has put us on the back foot. Although the bill is intent on overcoming that situation and indeed identifies a few areas where difficulties might arise, I have a great feeling that some problems might emerge that the minister has not yet identified. On that basis, section 12, whether modified or not, gives the minister the right to ensure that we meet the law's requirements.
As for the amendments in this grouping, perhaps some more surface amendments will bring onside one or two people who have made complaints—such as Gordon Jackson. I agree with Gordon's comments on amendment 29 about the use of the word "expedient"; its inclusion is not necessary in section 12(1), as the word "necessary" covers everything. Nevertheless, I will listen to what the minister has to say and give him 100 per cent backing. Whatever he decides on this issue will be good enough for me.
With friends like that, minister, you are not going to need a lot of enemies.
I am speechless, convener.
In the course of his remarks, Michael Matheson referred to "expedient" actions for whatever purpose. That is not the case; any "expedient" action would have to address any incompatibility with the convention. Only a foolish Executive would not ensure that it could demonstrate strong reasons for incompatibility on that basis, because otherwise amendments to the legislation would be open to being struck down. The word "necessary" seems to set a very stringent test. However, I acknowledge the remarks that have been made. Although I hope that Mr Matheson is willing not to move amendment 29, I will go away and consider the use of "necessary" and "expedient" and at the very least provide some fuller explanation and argument at stage 3 for the use of "expedient".
As for amendment 30's deletion of the phrase "or may be", it is very clear that, in any situation where legislation is found to be incompatible with convention rights, the implication is that we will be waiting for a court decision, which will leave us open to the possibility of a period where we would be unable to operate in certain areas. That might give rise to difficult or unsatisfactory consequences. Mr Matheson said that, in such cases, we could use the "super fast-track route"; however, that is designed only for the most urgent and extreme cases and, most important of all, completely bypasses parliamentary scrutiny. In the same way that I was puzzled at defending ministerial powers against Mr Gallie's attempts to strip us of them this morning, I would be surprised if Mr Matheson thought it correct to use a process that would reduce the opportunity for parliamentary scrutiny. On that basis, I hope that he will consider not moving his amendments.
Amendment 10 agreed to.
I take on board the minister's comments. Although my gut instinct is to move amendment 29, I am willing to take the minister at his word and will wait to hear what he has to say at stage 3. I hope that he will be open-minded. If he feels that he cannot use the word "expedient" in section 12(1), which amendment 29 amends, and in section 12(2)(c), which amendment 31 amends, he will be prepared to lodge an amendment to address that lack of justification.
As for amendment 30, I again take on board the minister's remarks. However, I continue to have serious concerns about the range of powers that remedial orders give to ministers, and will likely return to the issue at stage 3.
Amendments 29 and 30 not moved.
Amendment 11 moved—[Iain Gray]—and agreed to.
Amendment 31 not moved.
Amendment 32, in the name of Michael Matheson, is grouped with amendment 33.
The primary purpose of amendment 32 is to get clarification about the types of instruments and documents that may be modified by remedial order. As the bill is drafted, the Scottish ministers will have a wide-ranging power to modify by remedial order an enactment, prerogative instrument or any other instrument or document. The types of instruments and documents that are affected by these powers should be more clearly specified as those relating to the responsibilities of Scottish ministers.
Amendment 33 intends to ensure that no criminal offence, regardless of punishment, shall be created by remedial order. As the bill stands, a criminal offence could be created by remedial order. The creation of a criminal offence is a matter for Parliament to consider. Amendment 33 seeks to ensure that the creation of a criminal offence is brought before Parliament and is not done by remedial order.
I welcome the minister's comments on those issues.
I move amendment 32.
Amendment 32 would amend section 12(2)(d) so that modification by remedial order of any instrument or document that was not an enactment or prerogative instrument could be done only if the instrument or document related to the exercise of functions by ministers. Michael Matheson has asked for clarification on what kinds of instruments or documents we might have in mind. I admit that we have no particular documents or instruments in mind that would fit into the category of not being enactments or prerogative instruments. Nevertheless, it is difficult to predict exactly what amendments may need to be made to our law in future as ECHR case law before the domestic courts develops. It would be a pity if some instrument or document could not be appropriately altered in an emergency due to the deletion of the relevant power in the bill.
I note that under section 113(5) of the Scotland Act 1998 the general remedial powers that are available to the UK Government under section 107 of the act extend to amending relevant instruments and documents, so the bill is consistent with that. Members will wish to note that, if we ever sought to amend instruments or documents by way of remedial order, the consultation requirements that are outlined in sections 13 and 14 of the bill would operate, so those with a central interest in the instrument or document would have the opportunity to comment.
Leaving the power as it stands is advisable and of no great concern. On that basis, I invite Mr Matheson to withdraw his amendment. However, if members feel particularly strongly about this matter, I will take it away for consideration and return at stage 3 with further explanation or, if appropriate, an Executive amendment.
Mr Matheson's other proposal, amendment 33, would mean that a remedial order could not create any criminal offence. We do not support the amendment. Just as we do not envisage the remedial order power being used regularly, the instances on which that power would be used to create new criminal offences are likely to be very rare. Of course, criminal law is generally subject to particularly close ECHR scrutiny. I do not think that we want to go so far as to say that the remedial power could never be used to create a new offence.
Perhaps it would be more worrying if it were found necessary to make adjustments to the law on the onus of proof relative to certain elements of an offence or on the assumptions that it is valid for a court to make in criminal proceedings. That could lead us to a situation where it was argued in court that a brand-new offence had been created. We would, accidentally, have abolished the offence in trying to amend the legislation to make it compatible.
Given the safeguards in section 12(3) concerning the level of penalties, we do not feel that it would be wise to go so far as to prohibit entirely the creation of a new offence by remedial order. I hope that Mr Matheson will consider withdrawing amendment 33.
I take on board what the minister has said in relation to amendment 33, although I continue to have concerns about using a remedial order—subordinate legislation—to create a criminal offence. There are real issues about scrutiny, by the committee and the Parliament. I take on board the hypothetical circumstances in which the minister has suggested there could be difficulties. It would be interesting to know whether there have been difficulties since the incorporation of the ECHR to date.
I do not have an example of those difficulties coming to pass and having to be dealt with in the way that we discussed. I am conscious that by giving a hypothetical example, I laid myself open to requests for a more realistic one. Under the Civic Government (Scotland) Act 1982, someone who has a previous criminal record and is found in a public place with certain tools, such as a jemmy, can be assumed to be there for nefarious purposes. That has been questioned under the ECHR. If we felt that it was necessary and expedient to address that point and did so, there would be a danger that it could be argued that by changing the legislation around the existing criminal offence, we had created a new criminal offence. We could strike down the criminal offence without meaning to.
On scrutiny, I fall back on the fact that the orders are subject to scrutiny, as we have discussed. I take Mr Matheson's point about whether subordinate legislation is an appropriate medium by which to create or introduce a criminal offence, but there are existing safeguards concerning scrutiny and the level of penalties. I hope that Mr Matheson will feel that those safeguards are enough to avoid unfortunate side effects.
I hear what the minister has said and he has given an example of where questions have been raised. I can presume only that when the bill is enacted one of the first remedial orders to be introduced will address that incompatibility. I continue to have concerns about making provisions that allow us to create a criminal offence under subordinate legislation. I will seek to return to the matter at stage 3.
Amendment 32, by agreement, withdrawn.
Amendment 33 not moved.
Section 12, as amended, agreed to.
Section 13 agreed to.
Section 14—Procedure for remedial orders: urgent cases
Amendment 20 is a technical drafting amendment to improve the clarity of section 14(5). It inserts text to clarify that modifications to a remedial order include not just amendments to the order but its repeal.
I move amendment 20.
Amendment 20 agreed to.
Section 14, as amended, agreed to.
Section 15—Short title and commencement
Amendment 77 is a probing amendment, which deletes reference to part 2 of the bill from section 15(2). How can the Parole Board measures that the minister has so eloquently outlined today as being necessary to compliance under the ECHR be delayed any more than is necessary? Why should different parts of the bill come into force at different times? I cannot quite fathom that out, and I seek guidance from the minister as to why he is determined to do that.
I move amendment 77.
As Mr Gallie says, the effect of amendment 77 would be that part 2 would commence the day after royal assent, rather than by commencement order. I cannot disagree with him, except to say that it is desirable to commence those provisions as quickly as possible, particularly as they relate to ECHR compliance.
There are benefits in having a short period—we have in mind a couple of months and no more—prior to commencement. Part 1 of the bill requires changes to be made to the Parole Board rules to provide for the board to sit as a tribunal when considering the release of mandatory life prisoners. Furthermore, amendment 56, which was passed by the committee today, allows rules to be made requiring persons to attend hearings of the Parole Board.
We would like to bring the new Parole Board rules into force at the same time as the changes that are made to the constitution of the board under part 2 of the bill. That will ensure that all the board members take on their new functions and begin to operate on the new constitutional basis at the same date. That means, however, that a short period of time is likely to be needed after the passing of the bill, to consult on the new Parole Board rules. It is also desirable to have some time to prepare and consult on the regulations that will prescribe the appointment procedure for new members and the procedure that is to be followed by the removal tribunal, before part 2 of the bill is brought into force.
The purpose of section 15(2) is not delay. It is rather to ensure that things start in a proper and orderly way. There is some work to be done that can only really be done after the bill is passed. On that basis, I invite Mr Gallie to consider withdrawing amendment 77.
I emphasise that I made no objection to part 1 being included as it stands under part 7, simply because I think that it has already been acknowledged that part 1 is not essential to ECHR compliance. Having said that, part 2 is essential to ECHR compliance, and it gives me some concern that we are going to all this trouble to push the bill through while effectively saying that, even after the bill is enacted, we will be in breach of the ECHR.
I have listened to what the minister has said. I shall read his comments closely in the Official Report and I shall then determine what to do on a future occasion. For the moment, however, I shall seek leave to withdraw amendment 77.
Amendment 77, by agreement, withdrawn.
Section 15 agreed to.
That completes consideration of stage 2 for today.
Meeting closed at 12:03.