Justice and Home Affairs Committee, 29 Jun 1999

Meeting date: Tuesday, June 29, 1999

Official Report 118KB pdf

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Remit

Members will have received the good briefing notes from the clerks. I hope that everyone has had the opportunity to read through them—perhaps everyone is appalled and wishes they had chosen a different committee.

Members will appreciate that this committee has a wide remit and that the work load will be very heavy. Members have undoubtedly begun to ascertain interest from outside organisations, who have their own agendas and manifestos. We will perhaps wish to discuss those in the future.

Members will be aware that, of the eight bills that have been proposed by the Executive in this first year, three will be dealt with by this committee. That will make our work different from that of most other committees: we will deal directly with legislation. A lot of our work in the first year will be taken up with that.

I propose that we have a discussion in two parts today. In the first, I ask members to confine themselves to the issues that we know will come up. An abolition of feudal tenure bill is likely to be introduced in early September—as soon as we return from the recess—and the incapable adults bill will be introduced at the same time. The consultation paper for the land reform bill will be published during the recess and the draft bill is expected by the end of the year, so we will get some breathing space between the initial two bills and the third bill—but not much.

The response to the Macpherson inquiry report into the Stephen Lawrence case is likely to be published during the recess, too, and I understand that there are plans for it to be sent directly to this committee for comment. That means September—along with the two bills that we are expecting.

An Executive consultation paper on freedom of information is expected in the autumn, and the draft bill is to be published early next year. The committee is expected to deal with that both at the consultation stage and at the bill stage.

Those are the matters that we know about. I ask that, for this part of the discussion, we confine our comments to those areas. It is important at this stage that individual members get the opportunity to let the clerks know what kind of written and oral briefings they require for the next few months, to help them with the issues that we will be landed with very soon.

Committees with different remits can examine matters jointly. At its meeting last week, the Equal Opportunities Committee also expressed the desire to examine the Macpherson report. It would probably be simpler for this committee and the Equal Opportunities Committee to agree to examine it jointly. That would be simpler for the officials who are servicing the committees and for clerks and members. The report falls into both committees' remits.

That will be taken on board. Timetabling might be a difficulty, because of this committee's likely heavy work load and the need to meet more often than other committees. It might be awkward, but I am sure that the clerks will wish to consider that possibility to minimise everybody's work load.

I hope that this committee will, by and large, be non-contentious. We will not agree on everything, but there will be a lot of common ground.

I seek a little guidance from you, convener, or from the clerk, on our work load. I am not familiar with committees at all: they are not animals that I have had much to do with in my previous existence. Like many people, I have bees in my bonnet and lots of pet projects. I could make a list of 40 things that I would like this committee to deal with.

Is our work load so heavy that we will have no time to initiate anything ourselves? Will we consider so much work done in other committees and in the Parliament that we will not be able to do anything off our own bat?

I would be disappointed if that happened. This Parliament's committee system affords the opportunity for the committees to be creative and to initiate some items. We must not forget that issues will arise over the next year—from week to week and month to month—which it would be wrong for this committee to ignore, but we cannot plan for that now.

Our work load will be very heavy, but I want to ensure that we have the opportunity to do at least some of our own work and not just react to work that comes from the Executive. We will have to get into the business of prioritising—there is no doubt about that.

Roseanna, you have identified the programme: September looks like being a hell of a month. The Macpherson report could come out before then. It is my understanding that there is no reason under the standing orders why the committee should not meet during the recess. We could perhaps consider having a meeting in August or at a suitable time after the Macpherson report comes out.

I recognise that members will have their fortnight's holiday or whatever arranged during the recess. Members' holiday dates will be staggered, so there might be some difficulty getting everyone together at the same time, but a preliminary examination could be worthwhile.

I want to associate myself with Phil's comments on our work load and on how important it is that, come September, we hit the ground running. There seems to be a very strong case for this committee meeting formally sometime during the recess. We should also discuss who we wish to invite as advisers and who we would like to brief us. The briefing process should certainly be under way before we return in September.

I want to discuss the issue of invitations later in the meeting. There is the opportunity for both formal and informal briefings over the summer. The Scottish Office home department has already indicated its willingness to conduct briefings on its work and, presumably, on that of this committee, during the summer. The difficulty during the summer is getting people together at the same time. It would be difficult to fix that today, but it might be useful to proceed on the basis that, because some briefings are informal, everyone's attendance will not be required or expected. We should perhaps consider in principle fixing one formal meeting of this committee over the summer recess. To do that, we would have to accept that we will have to hand to the clerks our various commitment dates for the summer recess, so that they can draw up some kind of appropriate timetabling of summer business.

Are members happy enough to take a decision in principle to do that, which would allow the clerks to come back with proposals on when some of those informal briefings might take place and when a summer meeting might take place? The clerks will rely on members providing information.

Other committees are meeting over the summer. I know that the European Committee is. I have to travel down from Inverness, so it would be very helpful for me, for example, if committees could meet on the same day in the summer. Perhaps that could be taken into consideration.

Can you be a wee bit clearer about what you have in mind by informal briefings?

The Scottish Office has extended an invitation to committee members to visit the department for an introductory briefing about its work and how it is organised, and about how we would go about getting factual briefings on specific areas. I think that that would be a useful early exercise for most members of this committee, if not for all.

Would that be a briefing on the content of the bills, or on legal issues?

It would be about the operation of the department at the Scottish Office, how it will link into what we do and how we can link into, and use, its expertise in order to get briefings. I do not mean specific briefings on the bills—that is an entirely separate issue.

I think that it is very important that we are not simply a scrutinising committee, but that we initiate legislation. It is exciting that this committee can legislate on a number of areas that will affect ordinary people. We all have our pet lists, but I am sure that we can reach consensus on some areas, such as family law or domestic violence, in respect of which measures could be introduced that would really change the lot of many people in Scotland. That would show that the Parliament is delivering in a very simple but obvious manner. It is terribly important that we do not end up just scrutinising, editing and revising, but rather that we suggest powerful but ordinary measures. We must keep that balance clear from the start.

We are drifting into the second part of this discussion without finishing the first. While I know that it is difficult to avoid that, I would like us to talk about the more fixed programme. We should finalise that and get an indication from members about the areas on which they feel they need more specialised briefing. The briefing does not have to be face to face—it can be written. Members are all capable of reading and absorbing briefings.

I will run through the list again: the abolition of feudal tenure bill, the incapable adults bill, the land reform bill, which has a slightly longer time scale, the Executive response to the Macpherson report on the Stephen Lawrence case, which will come in September, and the consultation paper on freedom of information. Those are the issues that are being, in a sense, thrust upon us. In those areas, are there specific issues on which members feel strongly that they need briefing?

I need a briefing on feudal tenure. I have had some passing experience of some of the terms—terms of art, I suppose—in the existing legislation, but I do not think that I would be able to comment in detail without a specific briefing. It will be a highly technical bill and I will need considerable assistance, otherwise I will not know what I am doing with some of the terms and conditions in existing legislation. I am sure that that is true for other lay members of the committee.

It would be useful if the clerks could draw up a list of organisations that could advise us on each of the bills that we know is to be passed to us. Perhaps in association with Roseanna, we could pick four or five organisations and individuals to brief the committee. We could proceed from there.

The idea of compiling a list of organisations with the strongest input into specific legislation as a first effort is quite good. However, the slight difficulty with that suggestion is that we would be talking about a large number of meetings over the summer recess, which might be more difficult to organise.

I agree with both of those suggestions as I, too, need that information. My difficulty—it may be shared—is a chicken-and-egg problem. I do not know what I need to know. If information were given to us, or if someone said, "There's that bill—and that one, and that one," I could come back the next day and say what I needed to know. I know that this is not very helpful, but it is a circular problem. I see other members nodding. Until the information is sent to us, it is hard to identify our ignorance.

We are all in the same boat. The difficulty is that, if we wait until September, we will be in an even worse situation.

I agree with everything that has been said so far. Although it means moving on to the second issue, I will take up Christine's point. It is important that we get this bit right, to create space for some of the things that we want to put on the agenda.

My feeling is that there should be a briefing on where we are now. As a law student, I know quite a bit about land reform and I am interested in the subject. For many people who pay feu duties and who have been caught up in the Brian Hamilton affair and so on, it is an area that could be quite interesting if we make it so. We should not make too many assumptions about what we know. Obviously, some members know more than others do.

I am keen to spend the recess doing quite a bit of detailed background reading in order to get my head round the legislative areas. At the beginning, I would rather get away from the legislative process in order to get my head round where we are now. I am in favour of meeting during the recess—taking into account all that you say, convener, about the difficulties. I applaud your introductory remarks and, as there are fewer controversial issues between us, we have to put a little trust in one another. If members are not available, we should allow the committee to go ahead and meet. There should be at least one meeting during the recess but—very soon—a lot of reading material should be sent to us as a starting point, so that we can move forward.

Are you talking about briefings on feudal tenure, or much wider briefings?

I am talking about everything, really. However, we should prioritise the bills that will come up in September, such as feudal tenure, which is connected to land reform, and incapable adults.

The committee could have either an informal, face-to-face briefing from the Scottish Office, or written information along the lines that you suggest. I do not perceive there to be any difficulty about that. We will ensure that we communicate that to the Scottish Office in order to get information sent out as early as possible during the summer, so that members have it for as long as possible.

I suggested that organisations should provide written briefings. We are fortunate that the subject areas of the bills that will come before us are not new. Many organisations in Scotland have already done much work on land reform, feudal tenure and incapable adults, and have lobbied on those issues for a long time. There is a wealth of knowledge out there and we should ask those organisations to provide us with briefing papers, so that we can read the available material before we meet formally in September to consider the bills.

My point was that that information is already available, and it is a question of targeting the right organisations and getting that information in, which would provide the background material that all members of the committee need.

We are all prepared to read right through the summer, but is it too much to ask the clerks to give us what they think might be useful? [Laughter.]

Without getting into a huge row with the clerks, we do not want the committee to be driven entirely by the clerks, either.

It is difficult to identify what we want unless we have something first. Can the clerks, together with—

I will draw this part of the discussion together. I suggest that, particularly on the feudal tenure and incapable adults bills, we could all do with a list of organisations, as Trish Marwick was saying, and all the written briefings that are undoubtedly already available—in fact, some might be lurking in filing cabinets as we speak. We should do that at the earliest opportunity, before we widen our interest to take in some of the other areas. I am not suggesting that those should be our only briefings, but they should be the first, as those are the bills that we will have to deal with first. Are members happy with that suggestion?

I back that up, Roseanna. I recognise that Westminster is a dirty word here, but the select committee process was good at teasing out information from various interested organisations, along the lines of Trish's suggestion.

I suggest that, if we made it known publicly— through the clerks—that we require information and views on the feudal tenure bill and the incapable adults bill, we would get a raft of information from many people with useful things to say. If we made that announcement now, we could probably secure all those contributions by the end of July at the latest.

We could probably do that by the end of the week, knowing some of those organisations.

We have gone as far as we can with discussion of the committee's specific remit. Let us now consider some of the wider aspects of the remit; some of the things that the committee might want to examine. I ask members to bear it in mind that we will not have an endless opportunity to do so because of our work load.

Members will know, from listening to the radio this morning, that I have strong views on domestic violence. I hope that the committee will want to consider issues connected with domestic violence, which is an area where we could do quite a lot. All members will have their own areas of interest. This is their opportunity to indicate the directions in which they would like the committee to go within its wider remit.

As Mr Jackson said, we could probably produce endless lists, but there are two areas that I would like to examine. The first is the operation of the small claims court, particularly in relation to small civil claims. There should be a more effective method of processing such claims. The second is the operation of the Criminal Injuries Compensation Board.

Those are two areas of interest to me, and, although I appreciate that we will not be able to allocate time to them now, I would like the committee to address them in detail over the four years of this Parliament. In year two there might be more scope for that, because fewer bills will come before us.

The average citizen comes into contact with the law through small claims cases, and that contact is often thoroughly unsatisfactory for a variety of reasons. It would be very valuable if we could do something to smooth the process and to make it more effective.

I am conscious that we have recently signed up to additional human rights legislation through Europe. That will have a massive impact on the Scottish legal system. Gordon and Christine probably have much greater knowledge of this area than I do, but there seem to be a couple of areas in which there will be a direct effect. I understand that one of the problems for the Scottish police service is that, under the present questioning and charging procedures, police officers must question and charge suspects within six hours, during which period the individual has the right to have access to a solicitor. South of the border, the police have 72 hours for that process. That could place an added burden on the police in Scotland, which we should consider. It could have a practical effect on the way in which our justice system is served.

The other matter that I would like the committee to examine is past legislation—the intermediate diets that have been set up. I get the impression that all that was hoped of those diets has not come to fruition. It would be worth while for us to look into that, to discover whether measures need to be taken to improve the court procedures and the efficiency of everyone who is involved, from witnesses and police to clerks and those who sit on the benches.

That makes two votes for procedures.

I am aware that we will have an extremely heavy work load, but if the committee is to work, we must be seen to initiate legislation—and we need time to do that. It is incumbent on us that we drive forward an agenda of our own making, not simply that of the Executive. There are two areas about which I am particularly concerned: domestic violence and charity law.

In the case of domestic violence, the law can be tidied up in a number of areas, without requiring lengthy bills. We can make a real difference very quickly for women in Scotland who are suffering. I would like us to examine the areas of the law that could be tidied up without necessitating a great swatch of legislation. I am sure that that would be possible.

I did not declare an interest at the start of the committee, but I worked for Shelter prior to my election. Shelter is a charity that helps homeless people in Scotland. To that extent I have a continuing interest in the charity and voluntary sector in Scotland.

One of the major problems faced by charities and voluntary organisations in Scotland is that there is no regulatory framework for them: charities are allowed to do whatever they want. Unlike the Charity Commission for England and Wales, which has regulatory powers of investigation, the equivalent office in Scotland is small and has virtually no powers. Anybody in Scotland can set up a charity with very little investigation even when things go wrong. That should not happen. We should consider how charities and the voluntary sector work in Scotland, as they are responsible for collecting an awful lot of money. We must ensure that people who give money in good faith are protected, because that is not the case at the moment. We would do a great service to the voluntary and charitable sector in Scotland if we could initiate legislation on that.

I endorse what Tricia said about domestic violence: improvements could be made very easily to help women in that situation. The Scottish Office has a work plan that we can look at. I am interested in the related matter of sentencing policies in the case of abuse victims who are convicted of murder. I am interested in the questions of what murder is, what sentencing policy should be in place, and whether we are now out of line in defining murder as a premeditated act without taking into account the experience of someone who has been abused over a long term. Diminished responsibility is also an area of the law that needs to be examined.

Like Phil, I would be interested in examining court procedures, although other people might think that that was very boring. I speak from experience when I say that the way in which things are organised often dissuades people from appearing again as witnesses. The process costs those people money and they feel that they are left hanging around without being told what is happening. There is also the great cost to local government and the public purse of professional witnesses such as police officers, the fire service and local government officials.

The system must be improved, because it is not cost-effective and it dissuades people from coming forward as witnesses because they feel that they are not valued even though it takes up a lot of their time. I wrote to the minister about the matter some time ago, and I met the procurator fiscal in Dundee to discuss it, but I did not get far with my inquiries. I hope that the committee will get further than I did.

Picking two subjects of interest is simple. I would love to examine the way in which the police service is delivered, but that is a huge issue. The way in which we deal with mentally disordered offenders at every level also interests me a lot. I could happily talk about almost everything that has been mentioned. It is known that I have a particular bee in my bonnet about the issue of murder under diminished responsibility, and that is an issue about which I could talk for ever.

To pick up on something that Christine said, I wonder whether we should try to identify matters on which we can introduce legislation. We can choose to examine hugely contentious and complicated subjects such as the way in which the police service is delivered, which would make for a fascinating talking shop, or we can try to identify subjects on which we might share common ground. Those subjects might be important to people without being fantastically contentious.

We could then initiate legislation with the very real possibility of its being enacted. That way, we would make a difference. Perhaps we should have small targets—and I say that with hesitation—which are things that we could achieve, rather than huge, fascinating topics on which we cannot deliver.

That is what this process is about. It will be easier to proceed if we can identify the areas where several members of the committee want to take things forward. For example, we must be careful about discussing the issue of the police. Although it is a good topic to discuss, we know that a consultation document will come before the committee at some time, and it might be appropriate to leave our discussion on the matter until then.

We must be careful that we do not come up with a big shopping list, as Gordon Jackson said, which is based on the hobby-horses that people want to promote. You are quite right in saying that we must get consensus on the issues—or the issue—on which most members agree.

The issue that I want to raise has been discussed extensively in the media during the past few months: legal aid and access to the civil justice system. We should examine that, as it is one of the foundations of the justice system. I hope that we will discuss that subject in the next few months.

Civil legal aid is one of my hobby-horses because it is becoming a nightmare for practitioners and for the public. That has to be addressed because it is preventing people from getting access to remedies.

One thing that Gordon mentioned—a simple thing—is that the matrimonial interdict falls on divorce and the woman loses the protection of the power of arrest. Sometimes a divorce does not bring an end to dreadful things and they continue for a considerable time afterwards. That is a simple area that we could address.

I hope that we will also address the issue of mental health in Scotland. I have found myself in difficulties while representing people with alleged mental disorders. Whether or not they have capacity or whether they have something that could be defined as a mental illness is a difficult area of the law. Quite often, there is injustice to the person in the middle of it all who has been deemed to have some kind of mental illness. I believe that the sheriffs would be sympathetic to our considering the matter, as they find it difficult to deal with people who are brought before a civil court and who, although obviously unwell, are not unwell enough to be sectioned, and need a system for protecting their rights.

I would welcome the opportunity to contribute to the discussions on all the subjects that have been mentioned, but I want to mention another topic that deserves examination. Could we consider the downgrading of cases in courts? That has been commented on by many people, not least myself. People take exception to cases not being pursued as they ought to have been; under other circumstances, they would have had the full remit of the law at their disposal. Society expects to see justice done, and the downgrading of cases does not address people's needs. We ought to look at that.

As this is our first meeting and everyone else is declaring what they are interested in, I see no harm in doing the same. We need to decide, as Gordon Jackson said, what we can achieve, what would be useful and what people think the committee could work on which will be of use to a large section of the population.

I must declare my interest—a non-technical one—in tackling some women's issues in the committee. I would like to see a women's dimension to our work because it is important, in terms of women's perceptions of the Scottish Parliament, that we deal with an issue that affects women. I know that several members are interested in the issue of violence against women, so that may be a good place to start.

Lyndsay McIntosh mentioned the courts system. I have anecdotal evidence of how the courts can fail people, so it might be useful to look at that issue, at least in the preliminary stages, to see how the courts are operating and how we can secure access to justice.

Christine Grahame mentioned civil legal aid. We must not forget that we are dealing with civil law and we must strike a balance in the committee between dealing with civil justice and criminal justice.

Sentencing policy is an interesting area, and a minefield. We must also consider young people, prisons and sentencing policy. There will certainly be no shortage of topics for us to discuss, and we must get the balance right and choose a useful and achievable area of work that we can all get down to.

I want to put down a marker, without being contentious, about something that Pauline mentioned. I consider every issue that has been mentioned in the committee to be a women's issue as well as a man's issue.

As a final point, and I swear that this is the last thing I shall mention, we ought to consider victim support.

Will everyone want to make a final point?

The Equal Opportunities Committee will probably ask, towards the end of the recess, for a briefing from the Commission for Racial Equality. If you wish, I could ask the clerk to that committee to issue an invitation to members of this committee too, so that we can get some background information.

That would be useful.

I would like to bring the discussion to a close. Some of the matters that we have discussed can be dealt with by progressing some specific issues and, even in the shorter term, we can achieve something concrete.

We must not forget, however, that the committee will run for the four years of the Parliament. Some other issues, such as procedural issues, will have to be dealt with over a longer period. There is nothing wrong with beginning to do some work in those areas, but we must not expect to be able to bring it to a close within a month, two months or three months, as we might be able to do in other areas.

During the recess, we must work our way towards prioritising the topics that we want to deal with, by talking informally to one another and in briefing sessions, as well as in any formal meetings that we might have. We have a fairly clear idea of some of the areas that are of major interest. Perhaps, during the summer, we can get more specific briefings on those areas, to give us guidance as to what can be achieved easily and what will take much longer. That will give us a better idea of how to plan meetings.

Before we close, we should return to the matter of possible invitations. I suggest that we extend an invitation to the Deputy First Minister and Minister for Justice and to the Lord Advocate to meet the committee when we come back at the end of the recess. A meeting with them would help to clarify some of the issues that are already on the table. Obviously it will have to be fitted into people's schedules, but are members happy for us to issue an early invitation to both of them?

Members indicated agreement.

Are there any final remarks?

I am thinking out loud. Is there a role for sub-committees? We now have a shopping list and we might be able to identify, say, six things which, without much party contention, we would like to process. One way to process things would be to use smaller groups. After all, there are 11 of us and all 11 do not need to examine every single non-contentious topic. If we want to process part of our work in that way, can we do that?

That is a fair point—sub-committees are certainly an option. Resources, however, might be a difficulty. The committee is already likely to have to meet more often than once a fortnight, which is envisaged in the original timetable—I do not see how we can possibly keep to that, given our work load. Sub-committees could have resource implications, as they would need to be clerked and fitted into a schedule; meeting rooms would have to be arranged. However, we should not close our faces against the idea at this stage, as there might be an absolute need for sub-committees from time to time. We should at least leave the option open, so that we can have them if need be.

Are there any final comments before we bring this first meeting to a close?

No.

Thank you all very much. I also thank the clerks for their work in preparation for the meeting.

I look forward to speaking to most of you and to meeting you again informally—and perhaps formally—during the summer.

We can all look forward to the work that the committee has to do from September.

Meeting closed at 12:51.