Civil Appeals (Scotland) Bill: Stage 1
Good afternoon and welcome to the 33rd meeting of the Justice 2 Committee in 2006. I ask everybody present to ensure that all mobile phones, pagers, BlackBerrys and other such devices are switched off, please. We have received apologies from Fergus McNeill and Susan Wiltshire, the advisers to the committee, who are unable to attend today's meeting.
I welcome Adam Ingram MSP, who is here for item 1, which is the Civil Appeals (Scotland) Bill—a member's bill that he has introduced. Members have the approach paper in my name. Adam will say a few words before we go any further.
As members will be aware, I first proposed the bill back in September 2003. As you can see, it is a simple and straightforward bill—in my view, it has taken an inordinate length of time to reach the committee and it seems that members' bills are not getting a fair crack at the whip in Parliament. I believe that it is in all members' interests to try to redress that situation.
I take issue specifically with the convener's paper and its recommendation. The paper focuses on the legal competence of the bill—a question that has never been raised with me over the three years of the bill's gestation. Until a couple of months ago, there had been no suggestion that there were problems: nothing arose from the consultation responses and I had no indication whatever from the Scottish Executive—at any point, including during the Sewel motion debate on the Constitutional Reform Act 2005—that anything was amiss in respect of the bill's legal competence. It is, therefore, extraordinary that the kibosh is being applied to the bill in this way. I appeal to the committee not to take at face value the legal advice from the Presiding Officer on the competence of the bill. I hope that the committee will at least scrutinise that advice and hear external legal opinion on the bill's legislative competence.
The convener's paper states categorically:
"The parliament of the United Kingdom, including the judicial functions of the House of Lords, is reserved under paragraph 1(c) of Schedule 5 to the Scotland Act 1998."
That is inaccurate and misleading. Paragraph 1 of schedule 5 to the Scotland Act 1998 provides only that certain aspects of the constitution are reserved matters. In line with the rule of statutory interpretation of schedule 5, a matter that is not mentioned as a reserved matter is therefore devolved.
As is noted in the Scottish Parliament information centre briefing paper, paragraph 1(c) of schedule 5 states that
"the Parliament of the United Kingdom"
is a reserved matter. However, it makes no reference whatever to the judicial functions of the House of Lords. At the very least, we are dealing with a grey area of schedule 5 to the Scotland Act 1998, but the convener's paper does not reflect that. The presentation of the convener's views in such a categorical manner is misleading and wholly unsatisfactory as the basis for a decision on the legislative competence of the bill.
The system of courts in Scotland and their treatment under schedule 5 of the Scotland Act 1998 reflects the position that the Scottish courts system is a devolved matter. There are examples in other legislation of the judicial committee of the House of Lords being defined not as part of the UK Parliament, but as a court. Section 6(3) of the Human Rights Act 1998 states that the term "public authority"
"does not include either House of Parliament".
Subsequently, section 6(4) of that act states:
"‘Parliament' does not include the House of Lords in its judicial capacity."
Therefore, the House of Lords acting in its judicial capacity is defined as a court but not as a Parliament. Why should the Scottish Parliament treat the House of Lords acting in its judicial capacity any differently from the way in which the UK Parliament treated it in respect of the Human Rights Act 1998?
Even if it were proved on further scrutiny that the position of the judicial committee of the House of Lords in relation to Scottish civil appeals were to encroach on reserved areas, the convener's paper gives no consideration to section 29(3) of the Scotland Act 1998, which states that
"the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined … by reference to the purpose of the provision".
In the academic session 2001-02, first-year undergraduates at the University of Edinburgh were asked in their public law class to imagine that they were legal advisers to the Presiding Officer in the Scottish Parliament and that a bill was introduced to abolish appeals to the House of Lords. What advice would they give? The answer that the tutors gave the students was that schedule 5 to the Scotland Act 1998 appears to provide that such a bill would be within the legislative competence of the Scottish Parliament.
The Civil Appeals (Scotland) Bill relates to the provisions in Scots law for dealing with appeals on Scots civil matters. In so far as it impacts on a body that draws its membership from a house of the UK Parliament, that impact appears to be incidental to the bill's primary purpose.
Himsworth and Munro, who are both professors of law at the University of Edinburgh, quote Lord Sewel, who said:
"it is intended that any question as to whether a provision … ‘relates to' a reserved matter should be determined by reference to its ‘pith and substance' or its purpose and if its purpose is a devolved one then it is not outside legislative competence merely because ‘incidentally it affects' a reserved matter. A degree of trespass into reserved areas is inevitable because reserved and other areas are not divided into neat watertight compartments."—[Official Report, House of Lords, 21 Jul 1998; Vol 592, c 819.]
We can see from the treatment of other bills in the Scottish Parliament—such as the Christmas Day and New Year's Day Trading (Scotland) Bill—that although that principle appears to have been accepted, it has not been accepted in relation to the Civil Appeals (Scotland) Bill. Why not? In so far as the Civil Appeals (Scotland) Bill encroaches upon reserved areas—I do not accept that it does—why is the bill being treated differently to other bills? Is it merely due to time pressures on the Justice 2 Committee?
My final criticism of the legal advice is on the incomprehensible statement that the bill would breach article 6(1) of the European convention on human rights. The right to a hearing before an independent and impartial tribunal has been established by law and would be unaffected by the bill, and the explicit right to a fair and public hearing within a reasonable time would be enhanced by the repatriation to Scotland of the final appeals process.
The committee should be aware that I am urgently seeking a meeting with the Presiding Officer—I understand that he is in Canada this week—to discuss my concerns about his legal advice. I therefore urge the committee not to make irrevocable decisions today but to call for clear, accurate and transparent legal advice on legal competence.
Thank you for your forbearance in listening to my arguments.
Thank you for giving your views so concisely. You will appreciate that the committee did not consider time pressures in the way that you suggested. If you have looked at our work programme, you will know that we take on everything that is given to us. We hope to give everything a fair and tidy hearing within the competence of the committee.
I note Adam Ingram's references to section 29(3) of the Scotland Act 1998 and I note that he is seeking a meeting with the Presiding Officer. It is a tradition in Parliament that committees pay attention to the advice that is given to the Presiding Officer, who acts on behalf of Parliament. The committee is only a small part of the parliamentary process, so I hope that he appreciates our position.
Adam Ingram has raised a number of matters and I am sure that members will want to make points or ask questions. I open the meeting for such points or questions, and also for comments on the paper that I circulated.
I hope that Adam Ingram is not inviting us to consider the bill—which may or may not be competent—simply because it is a member's bill. I have a high regard for members' bills, but I would not want Parliament to pass anything that was inappropriate.
When a member wants to introduce a bill, there is a process to go through. I am curious to find out whether at any stage of that process you asked any of the officials in the non-Executive bills unit or, indeed, anyone else whether the bill that you sought to introduce was legislatively competent. I would also like to know, just for my information, what part of the Christmas Day and New Year's Day Trading (Scotland) Bill you believe touches on reserved matters. As a member of the committee that scrutinised the detail of that bill, I cannot recall which part of it you might be referring to.
The Christmas Day and New Year's Day Trading (Scotland) Bill seeks to regulate the operation of certain businesses in Scotland as regards their opening hours, but head C1 in part II of schedule 5 to the Scotland Act 1998 specifically reserves all matters relating to regulation of companies and business organisations. The reservation specifically includes
"The creation, operation, regulation and dissolution of types of business association."
Jackie Baillie asked whether I ever asked about the legal competence of my bill. My main concern in seeking to repatriate the final appeals process in civil cases was that I would not stray into reserved matters. I was well aware that the judicial committee of the House of Lords also deals with devolved matters. At no time was I advised that repatriation of the final appeals process in civil cases to the Court of Session or to another body in Scotland was not competent. It came as a great surprise—indeed, a shock—to me when that advice emerged.
Sure. As the member in charge of a member's bill, I went through a similar exercise and the first question out of my mouth was whether my bill would be competent. I find it curious that you did not ask that question. I understand your explanation that you were not provided with any advice about that, but my starting point is whether you asked the question.
Do you want to respond, Mr Ingram?
I was aware of that question at all times because I did not want to stray into reserved matters and have the bill knocked out as a result. I was sensitive to the issue.
When you commented on the Christmas Day and New Year's Day Trading (Scotland) Bill, you seemed to refer to the law on formation of companies, but the bill is about trading. It is not about employment and it has nothing to do with formation or dissolution of companies or the rules on how company directors are registered. I point that out in passing.
I think that wider issues have been raised. I am grateful for the paper that the convener circulated to us in advance. It is surely a matter of concern to all MSPs that although Adam Ingram's member's bill was laid in September 2003, it is only now, in the twilight of this session of Parliament, that a ruling has been made not to allow it to proceed. That might lead people to think that members' bills are not being treated with the respect that they deserve.
I lodged a member's bill, so I am familiar with the process that the member has gone through. I hope that every member of Parliament has respect for the member's bill as an important legislative route. After I lodged my member's bill, I was presented with all sorts of rule changes and hurdles—I am sure that the same applies to all the other members' bills that have been lodged. We start off playing football, the game is changed to rugby and we end up playing golf.
I say to Jackie Baillie that I presume that the non-Executive bills unit's advice to Adam Ingram was that its initial view was that his bill was legally competent. That was certainly the initial advice that I received on my bill. We must bear in mind that there are only one and a half civil servants in NEBU to deal with the legislative proposals of all MSPs, which is a ludicrously small resource. In effect, the Civil Appeals (Scotland) Bill has been culled, along with four or five other members' bills that were lodged at the same time as Adam Ingram's. It has been decided that they, too, should not be considered further by Parliament.
Against that background, the committee knows well that we have spent a great deal of time considering Executive bills. We have just finished considering an Executive bill, we are considering one at the moment and there will be another one for us to consider soon. It is in the nature of things that the impact and effectiveness of those bills is always questioned.
I read the convener's paper respectfully. I am well aware of the committee's workload and the questions that the Presiding Officer has highlighted. The paper says—quite fairly—that the committee is able to proceed if it so wishes: I would like to proceed with the bill.
Parliament's support for the non-Executive bills unit is outwith the committee's competence, but I note your points, Mr Fox. I have been in a similar situation.
I have read the convener's recommendations and have heard the case that Adam Ingram advanced and the points that Colin Fox made. Having had a bill proposal go through the member's bill system, I know that it is an important part of Parliament's workings. Considerable work goes into members' bills, so I am concerned that when a member has been pursuing a bill for three years, the legal advice to the Presiding Officer that it is not competent pulls the rug out from under it just when it might be going to a committee, despite the fact that the member in charge has received legal opinion that challenges the Presiding Officer's view. I would be concerned if a committee of the Parliament were just to accept that view and kick the bill into touch, which is what the convener's recommendation would do. That would be a disservice to the member's bill process.
The Presiding Officer should be able to give a reasonable answer to the questions that Adam Ingram, the member in charge, has raised. Before the committee considers whether to kick the bill into touch or to proceed with it, it should have sight of responses to the points that Adam Ingram makes in his challenge to the advice that the Presiding Officer has been given. That is not to say that we should disregard the Presiding Officer's view, but that we should try to get clarity on it to ensure that we also protect the integrity of the member's bill process. It is reasonable to try to achieve clarity before we make a decision that would bring about an end to the bill.
Thank you for your comments. As I said, the matters of competence are not for us to consider now; we must decide what to do with the bill, taking on board the advice that the committee has received.
I would like guidance. Is it the case that, even if we recommend that the general principles not be agreed to, there will be an opportunity for Parliament to decide? If there is a stage 1 debate, with our report advising what we wish the Parliament to do, all the issues can be highlighted and Parliament will have an opportunity to decide. I made a proposal for a member's bill: there were questions about its competence and I got written clarification on a number of areas. I am content with the convener's advice, but the matter is still ultimately for Parliament to decide.
I am advised that there will be an opportunity for Parliament to debate the bill. If others wish to bring the broader principles that we have discussed to bear in that debate—not in the committee—that could happen.
Why, then, do you state clearly in your report that we should not agree to the general principles of the bill, based on the advice that the Presiding Officer has provided? Is there not scope for Adam Ingram to get clarification before the committee makes such a final recommendation?
I would have thought that all that would have been dealt with before the bill was laid before the committee to deal with. We receive what we receive in good faith and assume that the parliamentary processes have been conducted correctly. There is no other basis on which a committee can operate when it has been allocated a bill.
Committee members have had an opportunity to discuss the matter. Does anybody wish to make a final comment?
Can I just say—
Sorry. I was going to say that Bill Butler would speak first.
As a member in charge of a member's bill that is proceeding, I know that members in charge feel real ownership because of the amount of hard work that they have put in as the bill goes through the detailed and sometimes elongated procedure to which Colin Fox referred. However, Mr Ingram urges us not to take the legal advice from the Presiding Officer into account, but we do not have that luxury. That is not an option for us—we must take it into account.
I have a question for Mr Ingram. He said in his presentation—I think he was quoting someone but I forget the source, although I think I am quoting correctly—that
"A degree of trespass into reserved areas"
is permissible. However, paragraph 6 of the convener's report to the committee indicates that the Presiding Officer's view is that only one part of the putative bill seems to stray into devolved areas—everything else is outwith such areas. What do you have to say to that?
The key question is whether the House of Lords is regarded in this case as a court or a house of Parliament. The substance of the bill is to transfer back to Scotland powers that the House of Lords currently has, which is why the bill is littered with references to such matters.
I was making the point that the Presiding Officer's advice landed on me very late in the process. I had been going along on the assumption that everything was okay as far as the legal competence of the bill was concerned. I have sought and found alternative legal advice, which is contradictory to the Presiding Officer's legal advice. I would like to get the situation clarified before the committee decides not to consider the principles of the bill. I would like to put my case to the Presiding Officer for him to consider in the light of the new material that I am giving him. I ask the committee to put the matter on the back burner and to perhaps return to it at a future meeting, rather than make a final decision today on whether to consider the general principles of the bill.
With respect, all that we would do today if the committee were to agree with the recommendation in the convener's report is make a recommendation to Parliament. By the time that it came to Parliament, Mr Ingram would have had time to talk with the Presiding Officer and we could hear what he and the Presiding Officer had to say. I suggest to the convener and colleagues that we must at this stage deal with what the Presiding Officer has said clearly with regard to so many sections and so many paragraphs of the bill, which clearly—if I may use Mr Ingram's words—"trespass into reserved areas". We do not have any option, but it is ultimately up to Parliament to decide.
I would like clarification on what the convener said earlier. My question covers the same territory that Bill Butler has taken us on to. Are you suggesting that the bill should go forward to a stage 1 debate with a recommendation from the committee that it should not proceed, or are you and Bill Butler suggesting that Mr Ingram's only recourse is to challenge the ruling in what will in effect be a ruling debate in Parliament?
It will be the latter.
So there would be no debate on the bill in Parliament.
We have been asked whether the committee can competently progress the bill in the light of the advice that has been presented to us. If there is an issue with the Presiding Officer's advice—Mr Ingram feels that there is and some members of the committee seem to have sympathy with that view—that is outwith the remit of the committee.
We can certainly refer the bill back to Parliament—we have to anyway, one way or another. Then, it is for the Presiding Officer and Parliament to decide on the competence of the bill. I have sympathy on the matter of the late notice from the Presiding Officer's office, but it is not within the power of the committee to vary that. It is his decision.
If Mr Ingram seeks to change the situation, I point out that the matter will not, I imagine, be raised in Parliament this week even if we decide that it must go back to Parliament because we are not content. I say that based on the advice that we have had. That means that Mr Ingram would have some time. I presume that whatever we decide today, members want me to report not just to Parliament but to the Presiding Officer's office on what the committee has discussed today, regardless of the Presiding Officer's current absence.
The Presiding Officer's ruling was made a week before the bill was introduced. Adam Ingram went ahead and introduced his bill, knowing what the Presiding Officer's view was. I presume—he has said that he did—that he has looked for contrary opinions. I wonder whether he has held any meetings with the Presiding Officer in the two months since he made his ruling. This is not something that just happened last week. It happened two months ago, before the bill's introduction.
The member might be aware that it takes some time to acquire legal opinions. It cannot necessarily be obtained in a short time. That does not alter the fact that I am challenging the legal advice that has been given. Now that I have legal advice of my own, I can proceed with a meeting with the Presiding Officer, and I have notified his office to that effect.
You are in effect saying, convener, that I may challenge the Presiding Officer—the Presiding Officer may, in due course, reconsider his legal opinion. You are saying that, by that time, the bill could not come back to the committee. Is that correct?
If Parliament decides that the bill should come back, it would be after a very short debate, not a full stage 1 debate. If my recommendation is carried by the committee, that would result in a minutely short debate, which would be an opportunity for you briefly to argue your case. I presume that you would have a chance before then to deal with the Presiding Officer. I cannot recommend to him what he should do—the matter will be dealt with appropriately, as he sees fit and in accordance with the presentation that you make to him. However, that is not the business of this committee.
I wish to move on. In my view, it would not be advisable at this time for the committee to proceed to consider the bill at stage 1 in the normal way because it appears to be outwith Parliament's legislative competence, it appears to be unlikely that it can be brought back within legislative competence and, if the judicial committee were to decide that the bill was not competent, the Presiding Officer could not submit the bill for royal assent.
On the basis of the paper that we have discussed, I recommend first that the committee recommend to Parliament that the general principles of the bill not be agreed to on the grounds that, in the opinion of the committee, having regard to the terms of the Presiding Officer's statement on legislative competence under rule 9.3.1, the bill appears to be clearly outwith Parliament's legislative competence and it is unlikely to be possible to amend it at stages 2 and 3 to bring it within legislative competence; and secondly, that the committee agrees that I should lodge the appropriate motion under rule 9.14.18.
Does the committee agree with that course of action, or does the committee instead wish to proceed with consideration of the bill and to request that the clerks prepare a further paper on handling the bill and the committee's approach? I put the question to the committee. Does the committee agree with my recommendation in both respects?
No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Against
Fox, Colin (Lothians) (SSP)
Matheson, Michael (Central Scotland) (SNP)
The result of the division is: For 5, Against 2, Abstentions 0. The recommendations in the paper are agreed to
I thank Mr Ingram. I hope that he appreciates that the matter is outwith the general competence of the committee, and that it must be dealt with by the Presiding Officer and Parliament. I wish him godspeed in his deliberations with the Presiding Officer and I thank him very much for attending.