Police, Public Order and Criminal Justice (Scotland) Bill
Good afternoon, ladies and gentlemen, and welcome to the ninth meeting in 2006 of the Justice 2 Committee. The only apology that I have received is from Colin Fox, who will be late.
Before we continue, I draw attention to the fact that this is our clerk Gillian Baxendine's last meeting because she will leave soon to have a child. On behalf of the committee, I wish her every success with that. I thank her—I also thank her colleagues—for her time here and the support that she has given to the committee. I gather that she has been involved with the committee for five years, quite apart from the support that I have received from her. We wish her well for the future.
I remind members that we have agreed to consider agenda item 5 in private—it is an unfinished private session that has been carried forward from last week.
Agenda item 1 is the Police, Public Order and Criminal Justice (Scotland) Bill. We are joined today by Alastair Merrill and Callum Percy of the Scottish Executive Justice Department, who will give evidence on the draft Scottish Executive guidance on marches and parades. Welcome, gentlemen.
Alastair Merrill (Scottish Executive Justice Department):
Thank you, convener. We are pleased to be here today to answer the committee's questions on the draft guidance. As you are aware, the guidance is to be issued to local authorities under what will be, if enacted, section 65A of the Civic Government (Scotland) Act 1982.
Since last autumn, I have been the chair of the Executive's working group on marches and parades. I am accompanied today by Callum Percy from the police division in the Justice Department. He provides the secretariat for the working group.
With the convener's permission, I will outline briefly the role of the working group, and then draw out a few points from the latest guidance document, which I submitted to the committee on 17 March. Finally, I will touch on the second document that we sent to the committee on that date—the overall report of the working group—and explain its relationship to the guidance.
The working group was first convened in March last year. It has 15 members and draws together the interests of various key public bodies; the Convention of Scottish Local Authorities, the Society of Local Authority Lawyers and Administrators in Scotland, the Society of Local Authority Chief Executives and Senior Managers, the Association of Chief Police Officers in Scotland, the Scottish Police Federation and the Association of Scottish Police Superintendents are all members. Some of the members double up as representatives of their local authorities—in particular, Glasgow City Council, the City of Edinburgh Council, Scottish Borders Council and North Lanarkshire Council. The group's main task has been to support the implementation of the non-legislative recommendations of Sir John Orr's "Review of Marches and Parades in Scotland", but it has also had a role in informing development of the provisions in the Police, Public Order and Criminal Justice (Scotland) Bill.
The group meets formally and informally. It has held four formal meetings and has established a series of sub-groups that focus on developing specific parts of the guidance. Much of the group's correspondence has been conducted through e-mail as the draft guidance has taken shape.
We have recognised the importance of keeping the key marching organisations informed of the working group's progress as well as the progress of the bill, although they are not formally represented in the group. We have met separately with the Orange order, the Apprentice Boys of Derry, Cairde na hÉireann and the West of Scotland Band Alliance.
The group is due to convene again in the second half of April when we hope to be in a position to sign off the draft guidance and the report. We then plan to circulate both documents to a wider audience for formal comment, including all 32 local authorities, all eight police forces and the marching organisations, before the final version is approved by ministers.
The purpose of the guidance is twofold. First, it spells out the main legislative changes for local authorities and where their responsibilities lie. Secondly, it sets out the good practice that authorities should consider under the new rules when assessing notifications to march. Those areas of good practice flow directly from Sir John Orr's recommendations.
Our overall aim throughout has been to produce a clear, practical and effective tool that will be of genuine benefit to local authorities and march organisers alike.
As the committee will already be more than familiar with the legislative changes that make up the first section of the guidance, I will outline some areas of good practice that do not feature in the bill. The guidance includes sections on how local authorities might create opt-in lists, introduce codes of conduct, develop how-to guides, hold precursory and debriefing meetings, attempt to assess risks and encourage organisers to attend risk assessments. Those issues are not enshrined in statute because we accept that some marches will cause more difficulties than others and that local authorities and the police are best placed to decide the detail of what will best suit their specific needs in the particular circumstances.
The committee will note that the bill makes no provision for community consultation on each notified procession. The Deputy Minister for Justice wrote to the convener on 13 March to explain his thinking behind that decision. In essence, it would be extremely difficult to distinguish in legislation between those processions for which consultation should automatically take place and those for which it would not always be necessary. Moreover, as the vast majority of local authorities deal with relatively small numbers of processions, we took the view that to place all authorities under a statutory duty to obtain the views of communities on each procession would introduce a disproportionate bureaucratic burden, which we are keen to avoid.
The guidance goes into some detail about various ways of achieving community engagement. It explains how existing legislation in the Local Government in Scotland Act 2003 might play a part in the planning of marches and parades and how section 67 of the bill, which will amend the 1982 act, will require local authorities to provide communities with more information on processions. Taken together, those duties will give community members sufficient information to make representations about particular marches if they so wish. The draft guidance also emphasises that good practice can play a valuable part in the seeking of community views and in keeping communities informed of what is happening; for example, community bodies could be invited to attend the opt-in lists and the precursory and debriefing meetings.
A key part of the new procedures will be about monitoring how successfully local authorities and the police put the new processes into practice. Sir John Orr made it clear in his report that he does not believe that that will be an onerous task, so although discussions on monitoring are at an early stage, we are working on that basis. We are also mindful of the reform agenda, so we hope that it will be possible to incorporate monitoring of marches and parades into the existing returns that are provided by local authorities. We are in discussion with the Convention of Scottish Local Authorities to see how we might do that without placing additional undue burdens on local authorities.
We have included in the annexes to the guidance a number of standard templates to provide a standard notification form for organisers, a standard letter that authorities can send to bodies on their opt-in lists and a standard risk assessment form. Authorities will be under no statutory requirement to use those templates, which they will be able to adapt to suit their purposes. However, members of the working group felt that it would be helpful to provide templates from which local authorities could work. Over and above that, we have provided at the end of the draft guidance a step-by-step guide and a flow chart to show how the processes would work. Those are intended to allow practitioners to see at a glance how the new processes should operate in practice.
To summarise, the principal aim in creating the guidance was to produce a useful practitioner's guide to the new processes. The guidance also aims to carry a clear message to local authorities about the importance of implementing Sir John Orr's recommendations and how those recommendations—statutory and non-statutory—can be achieved without our needing to implement bureaucratic or overly complicated procedures.
The second document, which is the report of the working group on marches and parades, has been provided to the committee to set the guidance document in context. Its purpose is quite different from that of the guidance. Whereas the guidance is intended to be a working tool for practitioners, the report sets out for the record how each of Sir John Orr's 38 recommendations is being implemented. Although the report complements the guidance, it serves a fundamentally different purpose and therefore delves into a number of areas that are not covered by the guidance, although there is some overlap and duplication of text between the documents.
Both documents still require some tidying up, not least to ensure that they are fully consistent with one another. However, as members will probably have gathered from reading the documents, our efforts have been focused on ensuring that the guidance is fit for purpose. I am happy to take questions on the guidance and to hear committee members' suggestions on how we could improve it.
I am grateful to Mr Merrill for the clarity of his preliminary comments. Committee members will have received copies of the minister's letter, which has been circulated. I presume that members also have copies of the COSLA letter.
I understand from Mr Merrill's opening statement and from my reading of the documents that the working group had no wish to be overly prescriptive. However, given that authorities will be able to choose to use different templates and so on, did the working group give any thought to what might happen if someone challenges the way in which guidance has been applied? I presume that the minister will be the ultimate arbiter on the final guidance, but what would happen in the event of a challenge in the early stages? Obviously, if the draft guidance document is being circulated for further consultation, the document may need to be clarified again. I trust that the committee will be in the loop on all of that.
It will, indeed.
How did the working group approach the matter? I appreciate that an overly prescriptive approach would cause difficulties because of the identified differences among authorities, but what will ultimately happen if someone wishes to object to the way in which a process has been handled?
I think that that will come out during the monitoring and evaluation process. As the draft guidance has now been agreed by COSLA, the draft document will be put to the full working group for its agreement at the next formal meeting. The guidance document that will then be sent out will have been agreed and endorsed as a statement of good practice by all the key public bodies that deal with marches and parades. Therefore, if an authority wishes to diverge from the guidance, we will expect it to have good reason for doing so.
We hope that any such issues will become evident during the consultation process. If a good reason emerges, we will amend the final published version of the guidance accordingly. If it does not, we will watch how the guidance works in practice. As I said, we are keen not to be overly prescriptive. We want the guidance to help to turn the bill into a measure that will achieve the Scottish ministers' desired outcomes of better control and management of marches and parades, better information and better involvement of communities. We will follow closely how the guidance is implemented and then take stock if evidence emerges of vastly diverging practices.
You said that you have met marching organisations and various groups that will, as marchers and processors, have an interest in the guidance. Will such groups have an opportunity to feed back into the process before the guidance reaches its final stages?
Yes—they will be formally consulted after the working group's next meeting. Informally, we have also met them separately. Only last week, I met representatives of the Orange order and gave them a copy of the guidance and invited their comments on it. I will meet representatives of Cairde na hÉireann next week to talk them through the guidance and to seek their feedback.
When we took evidence at stage 1 in Glasgow city chambers, it was obvious that consultation of communities is an important part of the bill. It is important that communities be able to interact positively to influence events when that is considered appropriate.
You said that some of the draft guidance will facilitate community consultation. Will you elaborate a little on how the community planning process can help communities to become involved in consultation on marches and parades? You also said that community representatives would be allowed to attend the precursory and debriefing meetings—I think I quote you correctly—which is good, but how will they have a direct influence on those meetings? Obviously, it is for the police and local authorities to assess risk, so will the community have an input?
That will depend very much on the circumstances of the march. I think that I said that community representatives could be invited to attend, rather than that they would have an automatic right to attend. I apologise if I gave that impression.
I quite liked that impression. What you have just said worries me slightly.
We are trying to set out a framework for what constitutes good practice. It should be something that local authorities believe can and will work and that they are prepared to make work. The aim is to strike a balance. Community planning is one process that creates a framework. We have identified some of the other processes and means by which communities could get involved. We have made it clear in the guidance that ministers expect communities to be involved and consulted proactively. We stopped short of legislating for that, for the reasons that Hugh Henry outlined in his letter to the committee.
I accept what the minister said, but there is an opportunity to change the guidance so that it says that community representatives will have the right to attend meetings, rather than that they may or may not be asked to attend. That is important, if they are to have any influence, which is essential. The change of words is not simply semantic.
I can certainly put the suggestion to the working group.
I would like you to do that, if the committee agrees.
The concern that some members of the working group would have is that the suggested wording would imply that any community representative would have the absolute right to attend a meeting, rather than that they would have the right to request to attend.
Again, you are worrying me slightly, after starting so well. I would like my suggestion to be put into the process, regardless of whether it is acceptable. That would be a much more positive approach.
Callum Percy (Scottish Executive Justice Department):
Community representatives will not attend meetings as observers. They will be invited to have their say and to offer input at, rather than just to watch, proceedings.
I take your point, but that can happen only if they have been invited to attend in the first place. If they have not been invited to attend, they will not be able to take part. That is my point in a nutshell.
We will certainly take the suggestion back to the working group and hear members' views on it.
In some councils, the matter will be dealt with by only a small number of councillors. I presume that COSLA has argued that where a march or parade is likely to have an impact on a community, all elected members will have the right to be involved at an early stage.
Elected members will be involved through the opt-in lists.
Mr Merrill, you missed out one small point. Can you say in a little more detail how the community planning process will help communities to be more involved?
I apologise, Mr Butler. Community planning partnerships have discretion to set priorities for a particular area. It could be decided that one priority for the area was marches, parades and processions. If that were to happen, community bodies would have the option to participate in planning public services around such events.
I am obliged. That seems sensible.
I associate myself with Bill Butler's remarks on communities being notified and invited to meetings. Those are critical points.
I point out one inadvertent error that has not been captured: the spelling of the minister's name on page 2 of the draft guidance. I am sure that that will be rectified following this meeting.
There is a helpful comment on dispensations in paragraph 16. It is particularly helpful that you spell out the flexibility that exists to allow the notice period to be waived if there has been a factory closure or unexpected redundancy announcement, for example. You go on to make suggestions for the advertising of processions that are entirely reasonable in cases in which 28 days' notice has been given, but what is your guidance or expectation for emergency situations in which a dispensation has been granted?
Again, it would depend on the circumstances. We do not want to be overly prescriptive about how authorities should advertise marches. If a march is a major event that will attract a lot of publicity and media coverage, opportunities will be associated with that. Council websites and libraries could also be used. Only in exceptional circumstances would we envisage authorities taking out newspaper adverts to publicise a particular march. You will recall from earlier discussions the concerns that COSLA expressed that authorities might be obliged to take out particular forms of advertisement for each and every march. To try to allay those fears, we set out a range of options for publicising marches. Depending on the circumstances, those or other means could be used.
So it is conceivable that, if the timescale was tight, none of those suggestions might necessarily apply.
Indeed. We are not saying that those are the only means that local authorities could use; they are only some of the means.
Yesterday evening, I had the pleasure of meeting the members of the committees of all the common ridings and festivals in my constituency. I hope that you agree that the organisation of those festivals and common ridings provides an example of existing best practice. Of course, the organisers in those cases are the communities, so it should be stressed that there are many instances in which organisers and the community are not the same.
Will you go into more detail as to how marches, parades and processions that exhibit best practice on insurance, organisation and their relationship with the police—such as the common ridings and festivals, which already have close relationships with the police, even though the marches begin at the end of May and continue throughout the summer—could be exempted from the regulations after the bill has been passed? If marches exhibit best practice beyond that which is in the draft guidance, they should not be burdened by overly complex and bureaucratic local authority procedures.
That is absolutely right. I hope that the guidance—particularly the flow chart at the end of the guidance, which shows how the process would work—will reassure organisations such as the common ridings that, even if they were not exempted, the full process would not apply to them. We envisage a relatively small number of exemptions, because exemption means exemption from the notification process, which is simply to inform the council that a march is intended to take place. Where that is already happening, where it is long-established good practice and where all the links and management arrangements are in place, everything that we propose undoubtedly already happens. The only difference would be the use of a standard notification form that would give the local authority formal notification that the common riding was to take place on such and such a date.
Equally, if the local authority considers that there is a case for exempting an organisation even from that notification process, it is invited in the guidance to write to the Scottish ministers. The ministers might then decide to make an order at the Scottish Parliament.
I stress that we have gone to considerable lengths to try to move the guidance away from being what someone described as a jobsworth's charter that would impose a bureaucratic process on each and every march to being a tool that will ease the progress of marches through the approval process and provide local authorities with the appropriate tools to focus on the contentious and difficult marches for which there might not be tried and tested processes.
I understand that there is no specific mention of armistice gatherings, parades and marches in the guidance, other than the expectation that funeral parades will be exempted. However, armistice day marches have a different position than most. Has the working group given any consideration to such marches?
There has been no specific consideration of armistice day marches, although their organisation involves road closures, diversions and the co-ordinated efforts of different parts of the local authority and the police. Although one could make a case for exempting them, the procedures for such marches are tried and tested and the only difference that the guidance would make would be that the organisers would be notified and added to the list of processions that take place in a particular area.
You mentioned road closures, which many marches involve, either on trunk or local roads. Apart from only a couple of the common ridings, the rest require road closures. As you will be aware, separate guidance on road closures has been discussed in the transport department. Have you considered that guidance, which has not been implemented throughout Scotland, but is nevertheless live?
Would not it be better to tear up that other guidance and have overall guidance so that any organiser or community may consult best practice on marches and parades notification as well as information about road closures? Few marches or parades do not involve them both, so it seems burdensome to have two separate sets of guidance from two Executive departments with their different timescales and formats.
The guidance to which you refer has been around for some time—since 1984, I think. We will have a word with our colleagues and see where we can go with that.
Just for clarification, the guidance is a bit more up to date than that. Dumfries and Galloway proposed guidance—
Yes, the guidance was re-issued recently. We will certainly work with our colleagues on that.
I would be grateful for that.
We will ensure that we look at that matter before the next iteration of the guidance.
In the minister's letter to us, he said that he was happy to refer back to existing guidance and that he sought only to add provisions to the bill to deal with potential difficulties in communities.
COSLA is somewhat exercised about costs. Are you in a position to make any comment about that?
All I can say is that we have seen no evidence to suggest that there is a need to revisit the costings that we produced in the financial memorandum. I accept fully that those costings were based on a number of assumptions that are open to debate and dispute, but we have not seen concrete evidence from COSLA on what councils would have to do over and above current requirements and current good practice as a result of the bill.
Have you seen a copy of the letter from COSLA to the committee? Perhaps it has not been circulated.
Yes—I have it somewhere in my enormous bundle of papers. I do not attempt to dispute the estimated costs from the bloody Sunday march, but the letter demonstrates what is going on already. It is not clear what COSLA claims it would have to do additionally to police and organise a march after the bill has been passed that it is not already doing. COSLA refers to one of the most difficult and contentious marches. We sent observers along to that march to discuss its handling and policing.
I appreciate your evidence, but will you go back to the working group and request a letter from it to the committee outlining the costings arguments? COSLA has written to me, so I would like to be able to respond, having had something in writing from your good selves.
I will certainly send something in writing, but it will not be from the working group because members of the group have to agree to differ on the costings. As you are aware, COSLA representatives are key members of the group.
I take your point. In the absence of any other questions, I thank you both for making yourselves available this afternoon.
We will have a five-minute suspension while we assemble the minister.
Meeting suspended.
On resuming—