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High Court (Appeals System) (PE617)
Item 2 is consideration of new petitions. PE617 is in the name of James Crossan, whom I thank very much for coming this morning. Our normal procedure is to allow petitioners to speak for three minutes, after which I open up the discussion to allow members to ask questions. We will then consider the information given.
Good morning. I call on the Parliament to establish a system of independent appeals against decisions of the Crown in High Court cases. As things stand, the family of a victim can do nothing about action taken by the Crown during a murder trial. Families of a victim—such as our family—who dare to complain to the Lord Advocate are treated with utter contempt. We would like the committee to consider our petition. Convener, would you like me to summarise it?
You have distributed a paper that members have only just had the chance to see. If it forms the basis of information that you would like to put to the committee, you still have a minute or two to expand on it.
I will give members a quick summary of the background to the petition. In December 1997, five people came to my door, which resulted in our son being stabbed to death. One of the five was charged with murder but no charges were ever brought against the other four. The murder trial began on 8 April 1998 and the Crown closed its case on the same day. The jury heard just four hours of evidence. Even though the accused admitted killing my son, he was acquitted on a verdict of not proven. I was cited as a witness, as the only person who saw the fatal blow being struck, but I was not called to give evidence. No explanation for that has ever been given.
Thank you. We are sympathetic towards your situation. Members will now seek clarification of or make points about the issues that you have raised.
Mr Crossan, I assume that your MSP at the time, John McAllion, wrote to the Crown Office on your behalf. Did the Crown Office shed any light on some of the contradictions that you have reported to us? Obviously, the committee cannot review individual cases. If the Crown Office had given you satisfactory explanations, I wonder whether you would be pursuing a right of appeal.
John McAllion represented us. We wrote the letters and he sent them. The replies to his letters were the same as the replies to our letters—he was not given any more of an explanation because he was an MSP.
Too often, I hear complaints from victims' families who feel that they do not know what is going on or that they are not being taken into consideration. Did you feel that, throughout the process, you were given information and explanations of why things happened? Afterwards, were you offered a meeting with the Crown Office to allow you to talk through the events? If so, how were you treated at that meeting?
We wrote to the Crown Office and to the Lord Advocate on many occasions, but he refused to meet us.
He refused?
Yes. He said that there was no way he would meet us, so we could not ask for explanations. That is why we have been writing to the Crown Office for the past five years.
I know of people who have had meetings with the Lord Advocate when they felt that a case had not been dealt with properly, which has cleared the air a bit. It seems strange that a meeting was refused and that you are still writing to the Crown Office.
When the Lord Advocate refused to meet us, he arranged a meeting with the procurator fiscal in Dundee, but she simply said that she could not answer our questions—the meeting was a waste of time. The Crown Office has refused to meet us to discuss any of the issues that we raised in our letters.
I have a great deal of sympathy, not only with your case, but with other cases that relate to the justice system. There are two issues. The first, which you have not touched on but which has been mentioned to me, is the issue of the not proven verdict. If the verdict had been guilty, the Crown could have appealed against the sentence. We should consider that point.
Yes. That would be beneficial not only for me but for the other victims' families with whom I have spoken. We asked the Lord Advocate how a judge could advise a jury to bring a verdict of not proven when someone has admitted that he killed the deceased, but the Lord Advocate refused to answer that question. As things stand, there is nothing that we can do. The Lord Advocate lied to me and yet I have to write to him to complain about that. That is a ludicrous situation.
I understand that. Thank you.
Hello, Mr Crossan. I extend my sympathies to you. You find yourself in a dreadful situation. My first question concerns the actions of the police. You said that forensic evidence was not gathered. Did you receive an explanation from the police or their forensic section about that?
No.
Did you make a complaint about that to the police?
We met the senior police officer who was involved in the case. He said that he was satisfied that everything had been conducted properly. The police believed that they had the knife that killed our son. Although the police did not fingerprint it or send it for forensic testing, they believed that they had the murder weapon.
Did the police explain why the knife was not fingerprinted or sent for forensic testing?
No.
Did you pursue a complaint?
No. We concentrated on trying to get an explanation from the Crown Office. When I met the police officer, he told me that he believed that the police had the murder weapon. At that time, we did not know how much further we could pursue matters with the police. We thought that it would be more beneficial to take up the case with the Crown Office.
When was it clear to you that you were not being called as a witness?
I was told just after lunch on the day.
Who told you?
Someone from the procurator fiscal's office in Dundee.
Did he explain why?
No. I asked him why and whether the accused was changing his plea. The person from the procurator fiscal's office said that the accused was not doing so as such, but that a plea of culpable homicide had been accepted. However, that plea was not brought into the court. I do not know what happened.
Was the reduced charge of manslaughter brought?
That is what culpable homicide is. The accused was discharged from the murder charge.
Right. So he was convicted of culpable homicide.
No. He was acquitted altogether.
So the culpable homicide option did not come before the court.
No.
But that was what you understood was going to happen.
Yes.
Did anyone explain why that did not happen?
No. It might be hard for people to understand that, but when you meet the people from the procurator fiscal's office and the Crown Office, they tell you only what they want you to know. When I met the woman from the procurator fiscal's office in Dundee, I tried to get answers by putting hypothetical situations to her, but she kept saying that she would not or could not answer the question. What was the point of arranging the meeting in the first place?
My sympathies are with you and your family, Mr Crossan, not least because of the way in which things have been made worse for you by the fact that you have not been given the information that you have sought.
Yes.
Your answers to Carolyn Leckie's questions have to some extent clarified the matter about which I wanted to ask. You have said:
He claimed self-defence. He said that my son had run out of the house with a knife and that there was a struggle.
In point 7 of your supporting documentation, you said that the reason why you were not called to give evidence was that
That was the information that I was given at the time.
Presumably, you, your wife and your other son must have been there at the same time.
That is correct.
If all three of you were there at the same time, what evidence could you have given that your wife and other son would have been unable to give?
They were asked in court whether they had seen the fatal blow being struck and they had to answer that they had not.
But you saw it.
Yes.
The police knew that you had seen it—you had told them that you had seen it.
Yes—I made three statements to that effect.
You said that you met the police and the procurator fiscal. Were you accompanied by John McAllion, a solicitor or anybody else?
No. When the meeting was arranged, the procurator fiscal told us that only my wife and I could appear. We were not allowed to take copies of forensic reports, for example.
Had John McAllion asked to be present at meetings as your representative?
To be perfectly honest, I cannot remember.
It would be inappropriate for an elected representative to be denied access in such circumstances. Perhaps we could find out about that.
Mr Crossan, my sympathies, too, are with you. Even at this late stage, if you were to be given a full and proper explanation from the procurator fiscal's office and taken through the reasons why you were not called to give evidence, would you be happy with that?
I do not know whether I would be satisfied. I would like an inquiry into the whole handling of the case. Is it normal practice not to fingerprint knives, or did that happen only in this case? Is it normal practice to send knives for forensic tests? I do not understand the point of having a forensic department if items are not sent for forensic tests. Do such things happen all the time, or did they happen only in this case? It seems that people could not be bothered to do anything to gain a conviction.
I have some brief questions, if you do not mind, Mr Crossan. I think that there is often a perception among people who end up in difficult circumstances that the law is a bit of a game and that lawyers are more concerned with playing games than with what actually happened. How did your legal representatives deal with the matter? Did they feel that you had been badly treated? Were you given any assistance by them?
I agree that some legal representatives enjoy themselves in court. When I approached a deputy at about 3 o'clock in the afternoon to ask him why I was not called as a witness—
Are you talking about your lawyer?
I am talking about the deputy who was prosecuting the case. He was going back to his chambers. I asked him whether he could tell me why I was not being called to give evidence. He said, "I don't have to tell you anything. That was my decision." I shouted after him that surely my evidence was vital, but he just ignored me and kept on walking up the stairs.
So you feel that even those who were supposed to have represented you did not do so.
I was not in the court at the time, but my wife and son were there and other members of the family told me that, when witnesses were speaking, he drummed his fingers and checked his watch with the clock as though he had something more important to do than prosecuting a murder trial.
Did you go for legal advice after the trial?
Yes, we did. Our solicitor acted for us, but he could not get anywhere. He met the procurator fiscal, but their conversations were off the record.
There would be cost implications there that—
He could not tell us anything that would have had any bearing on what we thought.
The committee will now discuss what to do with Mr Crossan's petition, which essentially requests an option of appeal against decisions that the Crown takes in relation to murder trials. Our discussion should keep to what we should do about the direct request in Mr Crossan's petition.
Although we are sympathetic, we cannot ask for a review of the circumstances of Mr Crossan's case. I suggest that we write to the Executive, making it aware of the terms of the petition and asking whether there is any appeal or review mechanism for use in such situations. Equally, I would be keen to tease out the Crown Office's proposal to have victim information and advice officers throughout Scotland, although there will obviously to be a rolling programme for that. I would like to find out what role that service could have played in preventing the lack of communication that has given rise to the issues in Mr Crossan's case. I would be keen for the committee to write to the Executive on those two points.
Some time ago, the Executive said that better victim support services would be put in place, yet victims and their families are being side-stepped by the system and feel that they are not getting a fair hearing. Could we also ask the Executive whether it has monitored changes that have taken place in supporting people through those hard times? I am not a legal expert and could not begin to talk about whether it would be feasible to have an independent appeals system. We would have to start by writing to the Executive for information. We often hear of people being treated badly by the justice system. We must consider ways of trying to make the system better and force whatever Executive is in power to take action to stop such things happening.
I agree with what Linda Fabiani says. I have great sympathy with the circumstances of the specific case. However, I have a problem with the idea that there should be a general right to appeal a case on the basis of the outcome. That would cut both ways and give the Crown the opportunity to appeal a case after a not guilty verdict. Moreover, it could lead to a huge glut of appeals, as I imagine that few people in the circumstances in which Mr Crossan and his family find themselves would be satisfied with an outcome other than a finding that the person who had been charged was guilty, especially if they were in court at the time. I therefore have difficulty with that general proposal, as it could lead to an almost unlimited number of cases being reopened after a verdict had been given by a jury.
I agree with Jackie Baillie and Linda Fabiani. We should write to the Executive about this case and, perhaps, other cases as well. Unlike Mike Watson, I think that there is cause for a right of appeal in such cases and I would like to ask the Executive for its opinion on that. Checks and balances should exist. If it is proven that the Crown and the procurator fiscal have been negligent and that evidence exists that they did not produce, people such as Mr Crossan should have the right to appeal. However, I do not know the Executive's view on that. When we write to the Executive, we could ask for its opinion on the right of appeal in a case such as Mr Crossan's as well as in other cases.
The last thing that Mr Crossan needs is to come up against another closed door. We should do whatever we can to find an avenue for redress. I am not closed to the idea of an appeal in some of the circumstances that have been mentioned. We should not close down that option, because none of us here is a legal expert. The petition should be referred to one of the justice committees to examine the circumstances of the case and to determine the appropriate means of dealing with the situation.
Good morning, Mr Crossan. I understand that with your petition you are trying to establish a right of appeal, although not in your case—you are just giving us the benefit of your experience, which was distressing. I understand that your plea to the committee is to establish some sort of appeal in cases similar to yours.
That is correct. My plea is more to do with decisions that are taken during murder trials.
But you are not asking the committee to consider an appeal in your particular case.
Not on the acquittal, no. I know that nothing can be done about that. Mr Watson suggested that a lot of people who were not happy with the decisions of juries would come forward, but that is not what my petition asks for. It asks for explanations from the Crown Office if it withholds evidence. The Crown Office might think twice if the committee said, "Here, wait a minute. Why wasn't this evidence put to the jury?" As things stand, the Crown Office can do what it wants.
Members have made a number of suggestions and asked specific questions on which they would like responses from the Executive. We can write to the Executive, asking those questions and seeking its views on the contents of Mr Crossan's petition.
What specific questions will you put to the Executive?
The ones that were asked by members, for example Jackie Baillie's question—
Will you ask about the specific proposal for a general right of appeal or about the circumstances surrounding the case?
We can write to the Executive and the Crown Office with the questions that members raised this morning and ask for a specific response on those points. I suggest that we wait for the Executive's response before we make any decisions about what we ask others to do.
There is a distinct line to be drawn. If we go for an absolute right of appeal in all cases, we are into a jungle.
As I said, it would be worth while seeking the views of the Executive and the Crown Office. We have heard Mr Crossan speak on his petition this morning and, when we receive a response from the Executive and the Crown Office, we can decide what further action to take.
Who would define which cases would be allowed to go to appeal?
We have to wait for the Executive's response to our letter, in which we will ask it for its views on the circumstances under which an appeal should be allowed. Is that agreed?
Thank you, Mr Crossan. We will keep you updated.
Thank you.
Historic Scotland (Church Building Restoration) (PE620)
Convener, this might be the appropriate time for me to give notice that I do not intend to participate in the discussion on PE620 because I was involved in the case in a ministerial capacity earlier this year.
Thank you for clarifying that.
First, thank you for agreeing to hear my evidence. I am the session clerk at Riccarton parish church in Kilmarnock. The church was built in 1825 and is a B-listed building. It stands on a hill and is the most prominent landmark at the south of Kilmarnock, just off the bypass. In 1997, the church entered into an agreement with Historic Scotland concerning restoration work. That came about because there were serious structural problems with the chancel of the church. We were faced with a choice between instructing that the work be carried out almost immediately or vacating the church. The congregation could not have coped with the cost involved in restoration and decided to vacate the church, at least temporarily, and worship elsewhere.
You have spoken for almost five minutes. Could you wind up, please?
I will be quick.
I will have to ask you to come to a conclusion.
Certainly. We are asking for the 60 per cent funding arrangement to be reinstated in our case as that was the understanding at the start.
I should point out that the Public Petitions Committee's duty is to consider the general case that your situation highlights.
I will try to be brief. I am here supporting the petitioners because this is the second time since my election in 1999 that I have been involved in a case concerning Historic Scotland's funding for places of worship. I have found the system that is operated by Historic Scotland to be archaic and lacking in openness and transparency. In my view, a lot of hoodwinking goes on.
Thank you. Do members have any questions?
Hello, Mr McWilliam. I want to ask a couple of questions to get the situation clear in my own mind. We are talking about a tax offset that allows Historic Scotland to reduce its support. Does Historic Scotland work out the grant, or whatever it is that it eventually gives, by looking at the total cost, including the VAT and all other costs, and then giving a percentage of that? Is that why you say that Historic Scotland takes the benefit from the tax offset?
Yes. Historic Scotland gives us a percentage of the total estimated cost.
So, if VAT went up, Historic Scotland would still give the same percentage of the total cost.
Phases 2 and 3 were put together because it was felt that if work was done at a later phase on the steeple, damage might be done to the roof. We expect that each of the other phases will be taken as a separate entity.
That is fine. So, although the work was defined as separate phases, the impression was certainly given that the same grant level would apply throughout.
Yes. I have several letters to indicate that, including a letter from Historic Scotland in which the only figure that is mentioned is 60 per cent. Until this time, Historic Scotland has never mentioned any figure other than 60 per cent in any of the correspondence. Before we decided to go ahead with the work, we were told in a letter from our architect:
Is Historic Scotland basically now saying that the church is so well off that the grant will be cut?
That argument has never been used.
Historic Scotland regularly receives details of our financial position whenever they are requested. It is fully aware of our church's financial position. The annual income from our congregation is enough to cover the normal running of a church with very little left over. The fact is that, by a combination of means, we have already raised in phases 1 and 1A more than 10 per cent of the total because we had no other option. Therefore, we should not be asked for any more. If all the work had been done in one phase instead of six, we would already have raised more than the 10 per cent. Just because the work has been split up into six phases, we do not see why that means that the more than 10 per cent of £1.2 million that we have already raised should not be counted.
I am trying to get at Historic Scotland's reasoning. Margaret Jamieson is right to say that Historic Scotland is not transparent or open. It is difficult to get information from and people have to try to work through the machinations of what it does.
That is not really a question. Sandra White has a question.
It is a particular interest of mine.
I understand that, but I am trying to give everyone the opportunity to ask questions.
The petition calls on the Scottish Parliament to investigate whether the grant practices of Historic Scotland are fair and reasonable, as well as whether its use of the listed places of worship grant scheme is proper. In your submission, you said that you wanted the 60 per cent grant reinstated for your church. If the committee wrote to Historic Scotland or the Executive, we would be writing for all places of worship and not just for your particular case.
Yes.
This is the first time that I have heard about the issue of listed places of worship funding although, like Margaret Jamieson and others, I have spoken to Historic Scotland and tried to get information about other areas. Is there a list of other churches that have been through this particular process?
The other church that I have been involved with is St Sophia's in Galston. Again, it needed work done in a number of phases and it had difficulty in having that work started because of the state of the building. The parishioners have been out of the church for three years. Recently, I went to look at the work that is going on just now and learned that it is anticipated that the parishioners will be back in the church by Christmas. Again, the work carried on over several phases and at each phase, the church was required to make that financial commitment. That was not explained at day one.
Mr McWilliam, it seems to be unfair that the congregation has to make a commitment to pay its share of the renovation but, it appears, Historic Scotland does not. I find that bizarre.
The letters do not constitute a contract and Historic Scotland would be able to say that. I refer you to one of the letters. We wrote to our architects, who have experience of dealing with Historic Scotland, to ask for their view on the commitment of Historic Scotland. The reply that we received was as follows:
In that case, would it not be wise to run it past your solicitors?
That would cost money.
As someone who has dealt with such matters, I have a point of information. The correct term is not a contract—it is an offer of grant, which is based on the condition of acceptance.
After Carolyn Leckie has asked her question, I am keen that we get a chance to discuss what to do with the petition.
Will you clarify when you understood that the grant level would not be 60 per cent and how that was communicated and explained? Do you have anything in writing to that effect?
Yes. The work on phases 2 and 3, which have now been completed, started in March 2002. The work started two weeks before we received the letter stating that the grant was being reduced from 60 per cent to 45 per cent. I have correspondence that shows the reason for that. Our architects requested that the work begin, because everything was in place—the contractor had been selected and all the finances seemed to be in place—and they were getting very worried about the steeple. Therefore, they asked whether the work could start before the grant had received formal approval from Historic Scotland. HS wrote back to the architects and said that the work could start, although it reminded them that it had no responsibility for work that started before the grant had been approved if, for example, it decided that there would be no grant. In other words, we would have been responsible for the amount of money that was spent in the two weeks prior to the decision on the grant. However, I am sure that our experienced architects were fully aware that the process was in place and the grant would come through. We had the six-phase agreement. The architects took their action in good faith; they assumed that within two weeks we would be informed that we would receive 60 per cent.
I was coming to that. You said earlier that Historic Scotland seemed to be able to make decisions about work that is to be carried out and to give people the idea that money will be available. Do you suspect that its intention is to obtain commitments from the other funding bodies, to get that funding in place and to get the work started, so that situations in which decisions to close a church, for example, which might be made if people were fully informed, do not arise? Is that your suspicion?
I ask you to be careful about asking for Mr McWilliam's impressions of whether someone did something right or wrong, as it might be difficult to establish the motivation.
The term "hoodwinking" was mentioned.
I used that term.
I do not want anything to come back on anyone if they start making accusations.
I am just trying to understand—
I understand, but I am asking you not to put Mr McWilliam in a situation in which he says something that could be difficult to substantiate in the longer term. I am just trying to be careful.
A difficulty is that the people who are in charge of the funding at Historic Scotland are not up front early enough in the process and do not indicate to people what level of funding they are talking about. The congregation at Riccarton was under the impression that 60 per cent funding would be available for the whole contract. It found out that 60 per cent had become 45 per cent only when it signed on the dotted line and even that level of funding is not guaranteed for future work.
I would like us to have a discussion about what we do with the petition. Do members have suggestions?
In a slightly different guise, I have come across Historic Scotland before and have been aware of the difficulties expressed about its grant-awarding practices, so I am conscious that what the petitioner is calling for relates to more than just its use of grant funding for listed places of worship. Therefore I suggest that the committee write to the Executive seeking an explanation of the grant-awarding practice. We should ask specifically whether in the review of Historic Scotland's structure and functions that was announced in February particular consideration could be given to grant-awarding practices, because they have caused people difficulties.
That would form the basis of a good question to ask about Historic Scotland. If no members have other suggestions for questions to ask, we will write to the Executive as Jackie Baillie suggested and await the response. I thank the petitioners for coming along this morning.
For which petition is everybody here? I am desperate to know.
Petition PE647 on Falkirk Football Club—as if you did not know.
I am not saying that one petition is more important than another, but spaces in the public gallery are being taken up by MSPs and I am a bit concerned that the gallery is becoming overcrowded with them.
Just send them away.
I would like to make that suggestion as well. If members are happy to stick to the agenda, we will do so.
I am easy.
In fairness we should stick to the agenda. I am sure that the MSPs will not mind and the other petitioners who have been waiting patiently should have their say.
Matrimonial Law (Women's Land Rights) (PE624)
We come to petition PE624, by Ann Mallaby on behalf of the Women's Land Reform Group. I thank the petitioners for coming. I think that both petitioners want to speak to the petition. We will go into more detail in questions, so you can expand a bit more on the underlying problem then. Please stick to three minutes to explain the reason for the petition.
Thank you. I will try to do that.
I ask you to conclude your comments as soon as possible.
Can I have half a minute more please?
Yes.
Thank you.
Thank you very much. Members will have a few questions on what has been said.
I was glad to hear towards the end of your statement that your individual cases are being looked at. That is important and it is on-going.
That is a valid point. However, I will take further questions.
Our papers show that the Executive wrote to Ms Mallaby on 12 May. The letter from the equality unit stated that Yvonne Strachan
No.
We should ask the Executive about that. The letter was in response to a letter dated 28 April. Two months have elapsed since then. Has the Lord Chancellor—his office still exists, even if Lord Irvine has moved on—replied to the letter from Nino Gemelli, dated 7 February?
There has been no reply to that letter, to my knowledge.
Again, we need to get to the full facts behind that.
It is the registration that is fraudulent. The transfer is to our knowledge, but it is against our wishes. If we do not sign the documents, third parties will sign them for us.
I noted down that you said transfer "without knowledge". Did you mean "without agreement"? You said "knowledge", so I understood that something had been done surreptitiously.
In my case, two farms were involved. My name was on the deeds of one of them—the home farm. The other farm was also paid for by the partnership, of which I was an equal partner. Unknown to me, however, the second farm had been entered with the Land Registry in my former partner's name, not in mine. The second farm was paid for fully by the partnership; my former partner had no funds other than mine and his with which to pay for it. In the court hearings, that farm was allocated to him, although I had paid for it as an equal partner. I was without knowledge that he had entered the farm with the Land Registry in his name only.
And that has been held to be legal.
The farm has been held to be his, although all the accounts—I have copies of them, although I was not allowed to see them until after the second hearing of my case—showed that everything had been paid for by the partnership. Because my former partner had put the farm in his name with the Land Registry, it was allocated to him, as his, along with everything on it, despite the fact that the partnership had paid for all the things that he owned, as well as the things that I owned.
If we had committed fraud against our partners, we would have been prosecuted for that. That is not the case when the man commits the fraud against the woman.
You said, if I remember correctly, that the Government has been advised that its land policy is illegal. Aside from yourself, has some body or organisation informed the Government of that? Are you referring to the European Parliament?
You have seen the letter from the European Parliament.
So that is what you were referring to.
Yes.
I just wanted to clarify that. Thank you.
I want to get to the details of this case. Where were you farming at the time?
In England.
Were both of you farming in England?
Yes.
So this is a matter for the English courts.
No, because the same thing could happen in Scotland.
I am not entirely sure that agricultural law in Scotland is the same as it is in England. Nonetheless, am I right in saying that, in Ms Greenslade's case, her husband owned the farm but that apparently a partnership was formed beneath that ownership to run it?
The partnership was formed before the farm was purchased.
Your husband owned the farm, but the partnership was created and you were brought into it.
No. The partnership was founded when we got married in 1961. However, we owned no property at that time. Everything that was acquired after that was bought by the partnership with partnership funds.
And the partnership bought the farm.
We bought one farm a year later. The other farm was bought in the early 1970s.
And yet the farm was registered in his name.
The second farm was registered in his name, but the first one was not.
Did you not protest about that at the time?
I did not know about it.
Documentation must have been provided.
I did not expect to get divorced at that point. As the farm had been bought with partnership funds, I did not think that I needed to question things.
The policy is implemented under matrimonial law. The discretionary powers in that respect are similar in England and Scotland.
My final question is for Ms Mallaby. I understand from Nino Gemelli's letter that you chose to represent yourself in the court action in 1973. Why did you do that?
When was that?
I am referring to Nino Gemelli's letter, which states:
Yes. I did not receive any explanation then about why solicitors would not take on the case. However, I have since discovered the reason.
You approached solicitors but they would not represent you.
That is right. They would not act on my instructions.
I also instructed lawyers. Although they said at first that they would act on my instructions, they did not do so when the final case came up.
Lawyers are happy to take our money, but not to follow our instructions.
Have you been to the Equal Opportunities Commission? If so, what was its response?
Yes. The case was referred to Liberty.
My case was also referred.
However, Liberty would not take it on, even though we presented it as a test case.
I am absolutely amazed that such a thing can happen in the 21st century, and I thank the petitioners for raising the issue. As Linda Fabiani said, we do not know enough about the background, so we should write to the Executive to clarify some points. Do you know how many other women are in a similar position?
Pamela, would you like to answer that from an English perspective?
I have only read about other cases in the papers and know only what the public media have reported.
From a survey that we have been conducting, it seems that women in farming are not aware that their land has been registered solely in their partner's name. However, they are very afraid. Some women are in abusive marriages and would like to come out of them, but they are afraid to get a divorce because they would lose everything—their homes, business, assets and even their children.
I have difficulty in understanding the legality of registering land in the male partner's name without your knowledge. Did you not have to sign any conveyancing documents? Are they not superior to land registration?
In my case, the farm was unregistered—some farms remain unregistered in England.
I do not understand the process of the registration superseding any other documentation.
I think the reason is the policy. The belief is probably that registration should be in joint names. In my case, one farm was in joint names and one farm was not. However, all the documentation and all the accounts showed that everything was paid for by the partnership.
We believe that our land and assets are registered in joint names, but that does not come to light until a case comes to court.
I am becoming confused. Is the position under Scots law different from that under English law? Have women taken any test cases under Scots law of the circumstances that you have encountered? You claim that the Government knows that what it is doing is illegal, but is doing nothing to deal with the situation. Does proof of illegality under Scots law exist?
I am not aware of that, but I am hearing of more cases that look as though they should have been taken to court, but were not, because lawyers are unwilling to do that.
I went to the Court of Appeal, because I was first given an award that was valued at my half-share of the milk quota on the farming business that I had. The milk quota was in joint names, as were all the cows, the vehicles, the tractors and everything on the farms, although my former husband claimed in the court that they were his and he was allowed to get away with that. Given all the proof that the partnership owned all the property, the animals and everything else, I can think only that another agenda must be involved.
Was that in an English or Scottish court?
I do not think that there is any difference.
There is a huge and fundamental difference. If your case is based on circumstances that occurred in England and have never been tested in a Scots court, Scots law has not been proven insufficient to deal with those circumstances. That is fundamental to your petition. We must clarify whether what the Women's Land Reform Group says is the experience purely of English law or whether evidence exists of a similar problem under Scots law, which we would have to deal with.
The answer depends on whether the law is UK-wide. The fact that the position has not been tested in Scotland would not matter if the law were UK-wide. The question that we must ask is whether different law applies in Scotland, not whether the law has been tested in Scotland. If the law were UK-wide, a case about something that happened in south-east England would still apply to Scotland.
We mainly seek justice, which we have not got.
The policy can be implemented under English law and under Scots law and we have no reason to believe that it has not been.
We will establish in our general discussion whether the petitioners' concerns about Scots law and the problems with Scots law are legitimate. The European Parliament's Committee on Petitions has received a similar petition from the petitioners, and I suggest that we should find out what ruling or decision it made. We have correspondence on that. The clerks will be able to check with their colleagues on the European Parliament's Committee on Petitions what exactly that committee looked into. We should find out from the Scottish Executive where we stand on the question that Mike Watson raises. The question in my mind is whether Scots law and English law would lead to the same difficulties for women in respect of land.
We would welcome that.
I agree with you, convener. What you suggest is sensible.
As Mike Watson said, we need further clarification from Yvonne Strachan of the Scottish Executive. We need to know whether the Scottish Parliament should be investigating a matter that was first heard—and was subject to an appeal—in the English courts.
The principle could well apply in Scotland as well, as the petitioners are saying. Yvonne Strachan's letter is not clear. She talks about an English case and then describes the situation in Scotland. That may or may not mean that Scots law is different. Before we can rule on this, we have to be clear on the details.
A survey of how many women could be affected in Scotland would be helpful.
That would be difficult. I would ask for the committee's agreement that we start by writing to the Scottish Executive—
We are conducting further inquiries as we speak.
Given the evidence that we have heard this morning, the committee will have to clarify many things before we can consider any other actions. The first point of contact will be the Scottish Executive on the issues that have been raised this morning. Do members agree that we should contact the Executive?
I thank the petitioners for their evidence.
Falkirk Football Club (Promotion) (PE647)
I think that everyone is becoming familiar with our procedure. Petitioners have three minutes to discuss the purpose of their petition, after which there will be questions from members. The committee will then discuss what further action to take.
Thank you, convener. What you just said has summed up a fair bit of our case. Being a Falkirk supporter, I am not used to such big crowds, but I am delighted to see our local MSPs here. They have been tremendously supportive of the club over the years. That demonstrates the community impact of our campaign.
Thank you very much. If any MSPs want to make brief comments, they are welcome to do so, although I ask them to keep their contributions very brief.
I will be brief. Would it be all right if I also suggested a course of action for the committee?
I have no problem with that.
The situation is one of the biggest injustices in the history of Scottish football. Those who were members of the Parliament in the previous session will recall that I lodged a motion on the matter that was debated in the Parliament in March. That motion was supported by more than 70 MSPs and called on the SPL to
It is a pleasure to come along to a committee that has musical accompaniment from next door.
I will be brief. A lot has been said already. Falkirk football fans are frustrated, as are the folk of Falkirk in general. At a time when it is necessary to work to grow football by encouraging youngsters to participate and by involving local people, it is an outrage that the decision has been made behind closed doors. A form of glass ceiling is appearing for clubs such as Falkirk. As Michael Matheson and Dennis Canavan said, this is not just about Falkirk; it is about other football clubs in similar situations. I know that Falkirk fans are pleased that the committee is considering the petition. I support Dennis Canavan's call for action, and his recommendations on how to proceed.
I take on board Dennis Canavan's comments, which the committee can discuss, but before I open up the discussion, I have a question.
At the beginning of each calendar year the SPL writes to each first division football club, asking them to submit proposals on what would happen in the event of their being promoted. The SPL wrote to Falkirk FC as it wrote to everyone else. We replied and asked for a full set of the criteria listing what we would have to do. Having gone through those criteria, we submitted the documentation to the SPL at the end of March, before it was scheduled to make a decision on 31 March. The SPL decided at that point that it was not going to make a decision until later in the season.
You will be pleased to hear that, being a Partick Thistle fan, I am used to huge crowds.
Without wishing to be flippant, if I knew the answer, we would probably not be here today. We have not yet been told by the SPL what the reason is.
At the relevant point in March did you have the capacity and all the things that the SPL was looking for?
Yes. We have an agreement with the Dudley Group for a head lease for the 10,000-capacity stadium at Shyberry. It is also agreed that we will have first access to the ground for all cup-ties within the SPL, the Scottish cup and the CIS Insurance cup, and any other access as and when we need it, if we give 24 hours' notice. Even if matches—cup-ties and so on—have to be abandoned or replayed, we have a watertight agreement. I do not know why the SPL has decided that we do not meet the criteria. That is one of the questions that I hope the committee can ask the SPL.
Let me press you further. I am conscious that there are issues of timing. Was the package tied down prior to the end of March?
Yes. Had it not been, I have no doubt that on 31 March the SPL would have told us that we did not meet the criteria for this or that reason and would have thrown out our application. If we were told that we had done something that we should not have done, or that we had not done something that we should have done, that might have been painful but we could have lived with it. What we find unacceptable is being told that we do not meet the criteria but not being told why.
The SPL considered the appeal last week—
The SFA considered the appeal last week.
Who is considering the appeal today?
The SFA—the appeal was inconclusive last week. Tonight has been set aside for the appeal, which starts at 6.30 and ends at about 9.30; tomorrow night has also been set aside. The SPL has been unable to say, "There is something clearly lacking in Falkirk's capacity to meet the criteria." Were that the case, we would have been blown away a long time ago. The fact that five clubs say that we have fulfilled the criteria indicates the strength of our position.
What is the relationship between the SFA and the SPL?
Last week, that would have been a difficult question to answer, because the SPL was challenging whether the SFA had jurisdiction to hear an appeal against the decision. My understanding is that prior to the hearing's going ahead last Thursday night, all parties accepted that in football terms the SFA appeal is the end of the road. The SPL said originally that the SFA did not have jurisdiction over its affairs, because the SPL is a completely private entity. However, the SFA puts forward nominations for clubs to compete in Europe, and clubs have to be members of the SFA to be nominated. At the moment, it appears that the SFA has primacy.
Were your appeal to the SFA successful, would the SFA have the legal capability to enforce its decision with the SPL?
I understand that the SPL has given the undertaking that it will accept the decision. If the SFA says that we are at the end of the road and Falkirk has met the criteria, I sincerely hope that that will be the end of the matter. Time is pressing for the start of the new season.
The SFA is the governing body for the whole of Scottish football. Every league in Scotland, including the SPL, must abide by the SFA's constitution and rules.
I have a couple of questions. Am I right to think that both Falkirk FC and the SPL will give evidence at tonight's hearing?
Yes, that is my understanding. Motherwell Football Club will apparently be represented as well, although I am not sure why.
I can understand that; if the decision goes Falkirk's way, Motherwell will be relegated. Do you anticipate that the hearing tonight will bring answers to the 10 questions that you listed? Will the outcome be made public in relation to the basis on which a decision was made?
I do not expect that we will get those answers. The hearing tonight will consider whether the case that Falkirk FC put forward satisfied the criteria set out by the SPL. If we are deemed to have met the criteria, my understanding is that we will be promoted. If we are deemed not to have met the criteria, we will not be promoted. I very much doubt that the member clubs of the SPL will say that they decided not to vote for a particular reason. I also doubt that the SPL will tell us officially what the vote was.
I have two other questions that concern the ground in Airdrie, which Jackie Baillie touched on to an extent. The question of 31 March is important, because the rules state that the conditions must be satisfied by then. Presumably one of the reasons for that is that the outcome of the league championship is not known so the date cannot necessarily be seen to serve one of the clubs' interests. Were the guarantees that you received put in place by the 31 March?
Yes.
I understand that the ground in Airdrie is still owned by North Lanarkshire Council.
There is an arrangement between North Lanarkshire Council and KPMG, the liquidator. Dudley Group is the preferred bidder to operate the stadium.
Has North Lanarkshire Council given a written assurance that it will allow Falkirk to have the necessary primacy of use?
We received letters from North Lanarkshire Council while it was no longer a political body, because of the elections. We received letters from the officers of the council saying that if for any reason the agreement entered into for the Dudley Group falls though, the council will ensure that any subsequent bidder has to honour the terms of the contract between the Dudley Group and Falkirk FC.
The point is that the guarantees from North Lanarkshire Council were in place before 31 March.
Mr Bird made reference to public money. Even if we do not have a legal locus in relation to the actions of the SFA and the SPL—although I think that we should have—the fact that public money is involved means that we have some moral authority. Does Mr Bird know how much public money has been received by the SPL, the SFA and the individual clubs?
No.
Recently, sportscotland gave Rangers Football Club £0.5 million for the building of Murray park as a training facility.
I think that we are straying into areas where we should not go. As I said at the outset, we need to be clear about what the Public Petitions Committee should consider in relation to this matter. The petition concerns an organisation that affects a large number of people making decisions in a non-transparent manner. I do not think that the value of money that flows between one organisation and another has any bearing on that.
I think that it is relevant in relation to what political pressure can be brought to bear and how the committee might exert such pressure. Would it not be feasible to ask the Executive how much public funding it has committed to the football bodies and whether it thinks that it should take into account their current actions when considering future funding?
The issue before us is what we do today. There is no time for us to engage in correspondence with the Executive, given what has been said about the appeal.
We could correspond with the Executive at a later stage. There is a strong moral argument in that regard.
I am conscious of time and—although I should let Carolyn Leckie's question stand because we have had an answer to it—I am trying to keep us focused on the situation that affects Falkirk Football Club today, bearing in mind that an appeal will be heard this evening and that we have no influence on that process.
The points that Carolyn Leckie raised about public funding might be extremely relevant, especially if the committee decides to suggest that the Enterprise and Culture Committee should conduct a longer-term inquiry into the matter. However, immediate action is of the essence, given that the appeal will be heard tonight. If the Public Petitions Committee is going to be helpful at all, it should make a decision at this point to communicate with the SFA.
That was the point that I was trying to make. I appreciate your assistance, Dennis.
We should write to the SFA as soon as possible, as the issue is important for the economy and for the feelings of Falkirk's supporters. We should take on board what Dennis Canavan has said. I note the point about the public money that the bodies have received and I think that Carolyn Leckie is quite right to raise that issue, but we should not enter into that argument at the moment as time is of the essence.
The terms of the letter that we write are crucial. We should note that we have no particular jurisdiction over the decision-making process but that, nonetheless, we would like the SFA to note the petition. We should let the SFA have a transcript of the discussion that the Public Petitions Committee of the Scottish Parliament has had and ask for our deliberations to be taken into account. I do not know how much more we can do.
That is the crux of the issue. The purpose of dealing with the petition today is to ensure that the issue has a hearing in the Scottish Parliament before the decision is made and to ensure that the people who will make the decision are aware of the strength of feeling of the people of Falkirk and beyond. We do not seek to influence the decision, as it should be made by the powers in Scottish football, but it is important that the organisations are made aware of the strength of feeling that has been expressed today in the Parliament. The committee should make them aware of that.
It is also important to note that this is an issue not only for Falkirk. Having arisen this year, the situation could arise another year. Imagine that Ayr United Football Club were to find itself in the same situation next season as we were in this year and so entered into an agreement with St Mirren Football Club to secure access to an SPL-compliant stadium. Before submitting its papers to the SPL, the club might want to touch base with Falkirk Football Club to find out what went wrong with our bid to ensure that the same mistakes are not made, but we could not say what went wrong with our bid.
I do not think that it would be technically possible to send the SFA a transcript of this meeting before the decision is made as the appeal will be heard tonight. I suggest instead that, at the very least, the convener sends a letter summarising the views expressed at the meeting, appending a copy of the petition, which should be brought to the attention of the appeal body before a decision is taken. The letter should also ask for the outcome of the decision to be communicated to the convener along with a detailed statement of the reasons for that decision.
I have no problem with that, apart from the logistical problem of getting a 3,000 or 4,000-name petition to the SFA by tonight, although it would be useful if we highlighted the text of the petition to the SFA. We should also state that we are concerned about the impact of the football bodies' decision-making process on society. As Dennis Canavan suggested, we should ask the SFA to take cognisance of what has been said at today's meeting.
Seagulls (Health and Safety Hazards) (PE616)
Petition PE616 is from John Boyd, on behalf of Wellpark Action Group.
I came along today because I secured a members' business debate on broadly the same issues on 7 November last year. The debate was primarily based on difficulties that had been encountered with the seagull population in and around Dumfries. During the debate, members from all parties and representing all parts of Scotland spoke about the serious issues that many communities faced.
I agree with a great deal of what David Mundell has said. I am sorry that Mr John Boyd is not here to describe the two attacks that took place. I can appreciate the problem. As the convener might know, Margaret and I stay in Lossiemouth, where seagulls are called gows. One day, I was out for a run between Lossiemouth and Roseisle, when I was attacked by a seagull, which dive-bombed me from the rear. I am happy to say that the seagull missed—I hope that members feel that that was a happy conclusion. It was an intimidating experience—far more so than questioning the First Minister. I read subsequently of a senior citizen in England who was attacked by a dive-bombing seagull while he was halfway up a ladder doing some work on the outside of his house and, as a result, fell off the ladder and died.
I had better declare an interest, as my husband has a pest-control business, and seagulls are certainly a pest. I know a wee bit about the nuisance that they cause and how to get rid of them.
The minister is already committed to developing a national strategy in conjunction with local authorities, which clearly is how it must be done. The committee should gee him up to move that forward, because little or no progress appears to have been made. Extensive research is taking place to try to track the number of birds, where they are and what are the patterns. I understand that the total number of some species of gulls is dropping, which is why certain protections exist, but now seagulls are not just on the coast, they are in urban communities. That is one of the challenges in dealing with the problem.
I am sorry, but the reason why I asked the question was to hear whether other members would say that we should be geeing up the Executive to produce results from the strategy.
I do not think that there is a national strategy. However, David Mundell rightly said that the Deputy Minister for Environment and Rural Development stated on 7 November:
I agree with Fergus Ewing and David Mundell. I represent a maritime constituency and my constituents share the petitioners' problems. We have a particular problem in McCall's Avenue in Ayr, where there has been a huge problem for a number of years.
Do committee members agree to those suggestions?
We should remind the Executive that it said that it would consider a strategy in conjunction with the local authorities.
We will ask the Executive where it is with the strategy. We will ask the CMO for the evidence on which his conclusions were based and ask the Royal Mail to input to our discussions. Are we agreed?
Local Archives (PE628)
Christine Grahame has joined us and we can now move on to our consideration of petition PE628, on the Scottish Borders archive and local history centre.
Thank you for taking my petition out of turn—I was stuck at my own committee. I will take the committee from seagulls to Selkirk and from the high drama at Falkirk Football Club to the high drama of Selkirk, which has been caused by the proposal to remove the archives.
Our heritage is something that everybody thinks is there, but nobody gives much thought to the way in which it is preserved. The issue ties in with the lack of funding for small town museums. I back the call for someone to look into the matter. I am surprised that there is not a national strategy—although that sounds a bit overworked—or somewhere where someone can go to find out where to find all the things from different locations all over the country. I am also surprised that there are no guidelines for storage and so on. I would like to explore this important issue further.
As the petition states, no guidance is issued to local authorities. Practice is determined on an ad hoc basis, and that cannot be satisfactory.
That is clear. Without pre-empting what anybody else might want to say, I think that the committee will want to look into the matter further. The question is how we will do that, whether by contacting the Executive or by looking further.
In the interim, we should ask Scottish Borders Council what it intends to do if there is nowhere else in Selkirk where it can house the collection.
Part of the drama is the rivalry between Selkirk and Hawick. People who live outside the Borders do not realise how bloodthirsty that can get. It was proposed that the archive be moved to Hawick, but the Selkirk people regard it as a tourism asset in their area and they want to keep it. There are other facilities in Selkirk for it.
Has an alternative site been identified?
There is one in Selkirk.
That is fine, if that is what the Selkirk people want.
There are two issues that we must tackle. On the local issue of the archive in Selkirk, we could write to Scottish Borders Council to ask for its proposals for a strategy to deal with the situation. We could also write to the Scottish Executive to ask whether it has any relevant plans and, if not, why not. That would enable us to identify a further course of action; we could refer the petition to another parliamentary committee for further scrutiny. After writing to Scottish Borders Council and the Scottish Executive, we will collate the information that we receive.
I also ask you to contact the Society of Archivists in the first instance, as it might be able to give advice on a database of information about where all the archives are kept.
Do members agree that we should write to the Society of Archivists, too?
Thank you very much, convener. Good luck in your job.
Before we move on, you might be aware that there is a Unison reception in the Hub today, which I and, I imagine, Jackie Baillie, want to go to.
I am aware of that.
However, there is still a relevant, pertinent and topical item on the agenda.
I would like to deal quickly with the final item of new business. When we move on to current petitions, I will deal with the petition on nursery nurses first. Is that okay?
That is great. Thank you.
Asthma Treatment (Prescription Charges) (PE623)
Petition PE623, which is from Vicki Ferguson, is on the abolition of prescription charges for the treatment of asthma. As the petitioner is unable to be here, I will read out the background.
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