The next item is continuation of our consideration of the Convention Rights (Compliance) (Scotland) Bill, for which we will again take evidence from the Scottish Executive. We welcome Niall Campbell, the head of the criminal and civil law group, Ian Allen, the head of the legal aid branch, and Gillian Russell of the office of the solicitor. Other representatives of the Executive are also available to answer questions as appropriate. I apologise for the poor accommodation in which we are forced to meet—in years to come, it can only improve.
I apologise for my absence from the previous meeting.
Before a bill is introduced in the Scottish Parliament, it must be certified as competent. By definition, it must be compatible with the European convention on human rights. Gillian Russell will describe the procedure for establishing that.
The minister who is responsible for a bill must provide a certificate to show that it is within the legislative competence of the Parliament. The Presiding Officer also must confirm that. I am not sure whether that answers your question.
Not really. The ultimate arbiter would be the European Court of Human Rights. If the evidence of either the minister or Sir David was disputed, where would individual members or the Parliament as a whole go if it was felt that a bill should proceed?
Are you envisaging a situation in which there is a declaration of competence although members believe that a bill is not competent?
No, the reverse.
The bill would not be introduced unless a certificate of legislative competence was produced.
It might be a member's bill.
I presume that such a bill would also require a certificate of competence. Have you not experienced that in the introduction of a committee bill?
Not so far.
That certificate would come from the authorities in the Parliament, not from Scottish ministers. Are you wondering what would happen if members did not agree with their assessment of the bill?
Yes.
I do not know the procedure that would be required, but we can find that out and write to the committee. The issue is what happens to a committee bill. We are clear about what happens to Executive bills: we have to certify them as competent. The issue is one for the Parliament.
Excuse me for intervening, but I am struggling to understand how this discussion relates to the bill that we have before us.
The issue is fundamental to all bills.
Our job is to scrutinise the bill that is before us. Are you saying that there is something missing from the bill? There is nothing in the bill that concerns the introduction of bills in the Scottish Parliament.
The bill is intended to make the Scottish Parliament compliant with the ECHR. It is in the interests of the bill that we clarify whether there is a fundamental question regarding the competence of the Parliament. We have already been given a satisfactory answer and we have been promised another answer that will clarify the issue. I do not understand your concern, convener.
I shall let the discussion run just a little longer.
Mr Foubister, of the office of the solicitor, can perhaps add something.
A certificate of competence from the minister is required before Executive bills can be introduced. The Presiding Officer also must give his view on whether an Executive bill or a member's bill is within the Parliament's legislative competence. However, if the Presiding Officer's opinion is that a provision in a bill is not within the legislative competence of the Parliament, that does not prevent the bill from being introduced. The Presiding Officer must give his reasons for saying that it is not within the Parliament's legislative competence, but the member can still introduce their bill. However, if the Executive felt that a provision in a bill was not competent, it would refer the matter to the Privy Council, which would be the ultimate arbiter in that situation.
That answers my question for the moment.
Are the people who are involved in drafting the legal elements of the bill responsible for advising the minister whether it complies with the ECHR?
In the Executive?
Yes.
Not necessarily. The drafters are specialists.
They are referred to the Executive by solicitors such as yourselves.
Yes. The instructing solicitors are involved.
So the people who advise what should be in the bill are those who certify it as compliant with the ECHR.
Yes.
That is probably an argument for having a human rights commission.
The Executive can refer a matter through the system to the ultimate arbiter, the Privy Council. However, if Phil Gallie had a disagreement—perish the thought—over whether a bill was within the Parliament's legislative competence, could he, as an individual member, refer the matter to the Privy Council?
No. I am not sure what circumstance would arise. Mr Gallie would be entitled to introduce a bill that the Presiding Officer did not think was within legislative competence. However, if the Executive did not think that the bill was within legislative competence, it is likely that it would take steps either to amend it or to block it.
I was thinking of the reverse situation. If a bill was introduced that Mr Gallie thought was not within the Parliament's legislative competence, could he—like the Executive—refer the matter to the Privy Council, to block the bill?
No. However, the bill would be required to pass through the usual stages and, once it had been enacted, it could be challenged in court by an MSP as by anyone else.
Let us return to our discussion of the way in which the Convention Rights (Compliance) (Scotland) Bill deals with legal aid.
At the previous meeting, officials were unable to give an estimate of how many courts, tribunals or statutory inquiries are likely to be affected by the bill. If a broad interpretation of the bill's provisions is intended, people taking part in tribunals such as Department of Social Security tribunals might qualify for legal aid. Can our witnesses tell us now which tribunals and other bodies or types of statutory inquiries the Executive considers are likely to be affected by the proposed extension of legal aid?
We are not able to do that today. We must consider separately each tribunal, the nature of its business, the sanctions that may be attached to its proceedings and the complexity of those proceedings, when deciding which will come on to the list of tribunals in which cases may be legally aided.
What criteria are ministers likely to prescribe for when the Scottish Legal Aid Board considers applications for civil legal aid in those additional proceedings?
The criteria will include the complexity of particular proceedings, whether there is a substantial question of law, whether the evidence is complex and whether there is a procedural difficulty. Those criteria will be applied to cases in order to see whether they qualify for legal aid.
How would you go about settling disputes over whether a case qualifies?
It is entirely for SLAB to decide whether legal aid should be granted in individual cases. Ministers play no part in those decisions. The decisions of SLAB, which is an independent body, may be challenged by way of judicial review.
Would SLAB decide whether a case involved a matter of civil rights or obligations?
Two issues are involved. First, one must decide in principle for which tribunals one would make legal aid available. The key factor in that decision is whether the proceedings could be said to determine civil rights and obligations—for example, whether there would be a loss of livelihood or reputation, or whether property rights were involved.
Would not the criteria include consideration of whether the tribunal was capable of having a case with civil rights implications brought before it?
That could be determinative of whether, in principle, legal aid would be made available. However, according to case law based on the European convention on human rights, we do not have to make civil legal aid available in all cases to which article 6 might apply.
DSS tribunals do not qualify for civil legal aid or assistance by way of representation. Could a civil rights issue arise at a DSS tribunal?
If we were to take the view that DSS tribunals determined civil rights and obligations, one could say that, in principle, legal aid could be made available for them. However, one would then have to consider issues such as the complexity of the proceedings in the tribunal and whether legal aid should be made generally available to comply with article 6. All those issues are up for consideration.
Some of my constituents would say that some of the matters that are discussed at DSS tribunals are very complex indeed.
Our view is that legal aid is a devolved matter; it is for the Scottish Executive to decide for which tribunals we would make legal aid available.
That would be similar to the statutory instruments under the Terrorism Act 2000 that we will consider next week. Although that act is a reserved matter, legal aid in that respect is devolved. Is that right?
That is correct.
We will move on to exceptional cases.
Section 7 of the bill will allow ministers to make regulations for exceptional circumstances in which someone who would normally attract legal aid on a fixed-payment basis would receive it time and line, as it is described. What exceptional circumstances could occur?
Such a provision might be justified for cases where, for example, there is a large number of witnesses, which makes precognoscing them—taking statements—more costly. In addition, if witnesses are at some distance, the cost of meeting them and taking a precognition is much greater. In such situations, legal aid might be provided outside the fixed-fee scheme.
So the exceptional circumstances will probably relate to the number of witnesses.
That is the most obvious example. Extreme complexity of the law might also create exceptional circumstances. The number of such cases is small. The policy memorandum mentions that the figure is 1 per cent of cases, which is about 500.
I see that the figure is 500. The explanatory notes say that the provisions will have a "modest impact" on the Legal Aid Board's expenditure. What does "modest" mean?
For each of the 500 cases, we pay about £500 or £600. The possibility of picking up only the more expensive cases, which run to £1,500 in solicitors' fees, will mean that figures of £250,000 to £500,000 are involved. In a budget of £130 million, such figures are relatively absorbable. We will have to consider that as the cases arise. Inevitably, costs will vary from year to year.
Will the amount that is available be capped?
No.
Is the amount open ended?
Time and line is open ended; the case just drops out of the fixed-payments scheme. The average cost of a case may be quite high because it includes counsel's fees and other outlays, but we are considering only the solicitors' fees.
Are you establishing a precedent? If time-and-line payments are allowed for exceptional cases, is not it just a matter of time before a challenge arises from another case for which a fixed payment of legal aid has been provided?
The intention is to provide flexibility to deal with the exceptional case. The regulations will establish the factors that should be taken into account and the Legal Aid Board will take the decision. If someone is unable to obtain representation under the provisions for fixed fees or exceptional cases, the bill will allow the Legal Aid Board to employ a solicitor directly to ensure that the person is represented and that the requirements of the European convention on human rights are met. We hope that we have provided a complete system of safety nets that will ensure representation in all circumstances.
I cannot help but feel that a challenge is likely at some point. My understanding is that there have been challenges over 40-odd cases.
Against the fixed fees?
Yes.
The cases that we are discussing are considered exceptional; the fixed fee does not provide adequate financial coverage for them. We are making an arrangement for such exceptional cases so that the payment will match the cost in solicitors' fees.
So all the challenges to date have involved exceptional cases.
The ground that has been used is that the fixed fees would not allow for proper representation.
Have all the challenges involved the number of witnesses and complexities in the law?
Yes. The High Court decided that the concept of fixed payments was compatible, but observed that some hard cases exist. By introducing the exceptional powers, we feel that we will address the hard cases. Of course, the judicial committee of the Privy Council has still to consider that issue, which is under appeal.
I will follow up Michael Matheson's questions. In some rural sheriff courts, there have been difficulties in obtaining representation. I presume that the provisions would revisit that issue and would be used as a mechanism to sort out the many cases that are exceptional because of distance and lack of representation.
The fixed-fees scheme makes provision for distant courts by allowing for an extra payment, particularly for cases that are heard in courts in the Highlands. An attempt has already been made to meet that need.
So a case for which no solicitor was available would be exceptional.
Yes. If no solicitor were prepared to take up a case under the fixed-fees scheme, the Legal Aid Board's ability to employ a solicitor would provide a safety net.
I will follow up Michael Matheson's question. Are retrospective challenges likely as a result of the bill? Time-and-line payments will be provided for cases that would have attracted only fixed fees. If someone feels that he was disadvantaged because the provisions were not enacted at the time that he went to court, does he have scope for a challenge?
The bill includes provisions to disapply any of the criteria, to cover transitional cases, because we were concerned about that issue. When the regulations on exceptional cases are adopted, we expect to have to disapply some of the conditions to be fair to solicitors who could not keep the paperwork or did not know that that would be necessary, for example.
What do you mean by transitional cases?
If the regulations are adopted on 1 August, it is likely that 30,000 summary criminal cases will be in the system. It would be fair for those involved in such cases to be able to seek exception from the system and receive time and line. However, we must recognise that solicitors may not have been able to collect the paperwork and do all that was necessary during the six months for which such cases have been running, unlike those who are involved in fresh cases.
My question related more to retrospective challenges from cases that were not transitional but had finished at the time when the regulations came into force.
Such challenges would be unlikely, because the point should have been raised when the case was in the court. That would be a matter for the prosecution. The McLean appeal has been out for some time. People are aware that the appeal court has said that, in exceptional circumstances, the legal aid system as it stands may not produce a proper result.
In response to a question asked by Maureen Macmillan, Niall Campbell said that if a solicitor in a rural area could not take on a case under the fixed-fee arrangement because of costs that would be incurred—costs for travelling to the court, for example—the case could be classed as exceptional. Is that correct?
Not entirely. The fixed-fees scheme already makes provision for an extra payment for any case at one of 10 or 11 courts, which are all in the Highlands and Islands. That payment recognises the extra costs of rural cases.
Will you remind me how the estimate of 500 cases was arrived at?
We discussed the likely number of cases in the tripartite group with the Law Society of Scotland and the Legal Aid Board. The number is not precise. It is an estimate that seemed acceptable.
Was it just plucked out of the air, or did you do a sample survey of so many cases and say, "That's one that might possibly have fallen foul"?
It was not done on a scientific sampling basis, but on the basis of judgment within the tripartite group.
I am probably running behind the pack on this issue of 500 cases, but why is there a need for what I would call retrospection, given that with respect to adult mandatory life sentence prisoners, previous judgments have said that there is no need for change?
Do you mean retrospection in the legal aid situation?
Yes, but is there not an element of retrospection in looking back at previous sentences when trying to establish levels of punishment and levels of risk to the public?
The sentence remains. There is no change to the sentence of life sentence prisoners—it is life, and that remains unchanged. What is happening is that for all those who are still in prison, a period is being set for punishment and deterrence, which determines the point at which they go to a tribunal of the Parole Board for Scotland to be considered in terms of risk. The sentence remains unchanged, so there is no retrospection at all in that sense. I am not sure that I have answered your question.
Perhaps my question was not clear, but I did say that I am lagging behind.
I am sure that you will catch up, Mr Gallie.
Obviously, we keep the Lord Chancellor's Department in touch with what we are doing. There already are differences between the legal aid systems north and south of the border—for example, our fixed-fees scheme is not the same as in England—but they have the same objective, which is to ensure adequate representation to meet the tests of a fair trial.
The general rule on discrimination is that there must be an objective and reasonable justification for a difference in treatment. Our view is that as the UK Government has decided that it is appropriate for different administrative parts of the United Kingdom to decide how to make legal aid available, that in itself is the objective and reasonable justification for having differences north and south of the border. We think that we are doing what we need to do to meet our ECHR obligations, and we are doing it where it is within our competence to do so.
You said that there are differences with the fixed-fees scheme in Scotland. Did you consider scrapping the system altogether, because I think that there were adverse reactions when it was introduced?
Clearly, if a scheme is challenged one looks at it carefully, but the fixed-fees scheme has various administrative advantages for both the lawyer and the Legal Aid Board in terms of the speed that applications can be dealt with. It also has delivered significant savings in the total cost of legal aid. For both those reasons, it is now an established part of the way in which legal aid is given in summary criminal cases. The objective of this bill is to make changes that will address the risk of incompatibility with the convention.
I dare say that that is a subject that we may return to in our legal aid inquiry.
No organisations were consulted on this proposal to change the law, which flows directly from a Strasbourg judgment that said that the law was incompatible with the convention. If it would be helpful, we can make the judgment available to the committee.
It would be helpful if you sent us a copy.
Not many. A difficulty arises from the way in which the Criminal Law (Consolidation) (Scotland) Act 1995 is constructed. Two offences are grouped together under section 13 of that act. In 1998, for example, 30 people were convicted under the broad offence, part of which we are proposing to repeal. In 1999 there were 11 convictions. We cannot split the convictions between more than two people taking part in homosexual activities and homosexual activity in public toilets, which is not being dealt with by this bill.
If there are only 11 cases it would not be hard to work it out. You say that you cannot split them. If you had thousands of offences, I could see that providing the statistic would be difficult, but if you have as few cases as that, just picking up 11 summonses would tell you the answer.
The information came from our criminal statistics.
They are published statistics. Obviously, if one got hold of the case papers one could get the information.
The numbers are so small that that would not be a difficult exercise.
Yes, they are small.
Are there other similar provisions in law? In other words, are there instances where an offence for homosexuals is not an offence for heterosexuals, or is this the only problem that you will have with the ECHR in this area?
The European Court of Human Rights ruling was on the definition of privacy, so under the ECHR this was a matter of privacy rather than sexual discrimination.
Understood. Do members have any other questions on this provision?
Very seldom. To give you some idea of the scale of the operation, the fees last year for the procurator fiscal of the Lyon court were £1,800, so the functions are not exercised frequently.
What does the procurator fiscal of the Lyon court do?
In effect, he performs the same role as a procurator fiscal. He prosecutes before the Lyon court in the kind of cases that the court deals with that are to do with grants of arms and coats of arms.
I do not think that the committee wishes to pursue this matter.
Apart from asking whether we really need the Lord Lyon.
I have a question.
Mr Gallie, do you wish a coat of arms?
The policy memorandum on the Convention Rights (Compliance) (Scotland) Bill states:
The point is that in the situation regarding temporary sheriffs, the objection was not to who appointed them, but to the lack of tenure. If memory serves, in Starrs v Ruxton the High Court said that there was nothing objectionable about the Lord Advocate making the appointment. What was objectionable was that the temporary sheriffs only held office for one year, and were renewed from year to year. So just as Scottish ministers continue to be involved in the appointment of the senior judiciary, we see nothing objectionable about the appointment of the procurator fiscal of the Lyon court.
He is not the judge in the court; the Lord Lyon is the judge.
I understand.
We will move on to part 6, which deals with the remedial orders. Gordon, would you like to ask a question?
I have some difficulties with this part, but I should immediately say that my difficulties may be more for the minister than for the officials.
That would depend on the kind of situation that the Executive was trying to put right. The powers are there to deal with emergency situations in which it is necessary to do something quickly.
Can I just stop you there? I have sympathy with what you say, but my difficulty is with one of the situations in which the powers that your policy memorandum lists would be required.
It would not be a question of the Parliament not being able to examine such provisions because the procedure allows a super-affirmative resolution procedure, which is already precedented in the Human Rights Acts 1998. The speeded-up procedure is what is different. The process of primary legislation is the same.
Am I right in understanding that while the Rolls-Royce-style super-affirmative procedure allows more time for chatting and drafting, it does not give the Parliament power to amend what is proposed?
That is correct.
That means that the Scottish Parliament could be put behind the eight ball and face a choice between having to throw out a piece of legislation that it broadly liked or to accept it in full.
That is not realistic. The basic provision for the non-urgent cases allows something like a 60-day period for comments to be made on a draft of a draft. If there is a strong view that something in the draft of the draft is unacceptable, that would be taken on board.
Of course it can be taken on board. Ministers can always do what they want. However, am I right in saying that there would be no power in the Parliament to make that amendment?
I think that you are correct in saying that. If ministers chose to progress the draft of a draft in spite of views that had been expressed, the Parliament's options would be to accept the legislation or reject it.
Eventually, the Parliament would have to take all or nothing of what might be serious legislation.
Yes.
Given what you have said about the super-affirmative procedure and its 60-day period, why is that thought to be much quicker than emergency legislation that would allow the Parliament to deal with the necessary amendments in the normal way?
Under the proposals, there would be a fast procedure that would almost certainly be faster than primary legislation.
Yes, but I am talking about the normal way.
The normal procedure would probably take less time than taking primary legislation through quickly, but not necessarily. Primary legislation must go through the three-stage process and the procedure that is proposed would be a much-compressed procedure.
I understand why the Executive might want an emergency procedure, although I cannot see why any order under that procedure should not be time limited and have a sunset provision so that Parliament, if necessary, can re-enact the provisions with full parliamentary scrutiny. I am at a loss to understand why the Executive would want a remedial order procedure that you have just said might take more time than a piece of primary legislation, yet allows ministers to amend any act of Parliament that deals with a devolved issue.
I do not think that I said that it would be slower. I think that both the normal procedure and the fast procedure would certainly be faster than achieving the same result through primary legislation.
Okay, it may be faster. Presumably that is the reason why the power is being made. I cannot believe that ministers are making the power because they want to avoid there being full scrutiny.
We are also conscious of the pressure on the legislative programme, which is full.
Have you given any consideration to putting a sunset provision—"This order will expire after two years" or something—into the orders?
One of the issues to bear in mind is that the sort of changes that might be made under the orders could be small. For the sake of argument, it might be that the absence of the provision for an appeal to be made to a sheriff in a particular administrative situation is all that is wrong with a piece of legislation. That can be remedied in legislative terms in short compass. The question is whether it is in any way inappropriate for that to be done by an order that persists for ever or one that persists until repealed in due course.
Stuart Foubister has partially answered the question that I wanted to ask. My understanding is that the primary role of the orders will be to amend pieces of legislation. I would guess that any bill that would be introduced to amend another piece of legislation in such a way would be small and not detailed.
That is correct. In an ideal world, the power would not be used at all.
The likelihood is that, in this context, only small bills that could be dealt with in a short period would come before Parliament.
I continue to think that there are difficulties in relation to the urgent cases. I do not think that any lawyer would say that the ECHR is a black-and-white world; it is grey and we often do not know what will come up in advance.
In emergency cases, would the order lie for 60 days?
In the middle course, there is a super-urgent procedure, if you like, which allows the order to be made before it is laid in urgent cases.
In such cases, would the order have been made by the time it is considered?
Yes.
The standard procedure is that there would be a 60-day period. However, an additional provision in the bill allows for ministers, in urgent cases, to go ahead and make the order. That provision, however, has a sunset clause.
Given that we now have the benefit of hindsight, having witnessed various cases in which challenges have been made on the basis of the ECHR, can you give me an example of a case in which the super-fast procedure would have been appropriate?
I cannot think of one offhand. To a certain extent, the bill before us today takes up all the things that need to be done at the moment. I do not think that it would be difficult to produce an example of anything that has been done so far that would have been done by this procedure.
That means that this procedure is for something that might happen; no previous case would suggest that the power is needed.
The background to the power is that, in Scotland, a piece of legislation that is found to be incompatible with the ECHR is immediately struck down. The human rights situation in Scotland is such that we might have to act much more quickly than England and Wales, which have a declaration of incompatibility and time to put through legislation to rectify a situation. The power would help us to avoid an impossible situation arising or the striking down of a piece of legislation.
I accept that in urgent cases the court has made a decision that the matter had to be dealt with. I also accept that it will often be a small matter, but this provision gives the Executive power to do things that are neither urgent nor small. I trust the Executive implicitly, but I might not trust the next one or the one in 10 years' time. We must remember that we are making legislation for the long term.
We cannot answer that question this afternoon. We would need to give it consideration. You will be seeing the Deputy First Minister in a fortnight's time; we will obviously report on the issue to him. I do not think that it would be for us to suggest that that could be done. Obviously, the Pepper v Hart statement that you mentioned is another possibility, for describing more fully in the proceedings on the bill how the remedial powers might be used.
Michael Matheson asked for an example. Would it be fair to say that the Ruddle bill was an example of the kind of matter for which this power could have been used?
We can provide examples of the sort of thing that would be dealt with under the powers in the bill. The Ruddle situation would not have been, because it was not a human rights problem; it was a loophole in the existing domestic legislation. Temporary sheriffs could have been dealt with under the powers in the bill. It would have been for consideration as to whether that would have been an appropriate way to do it and whether the matter was sufficiently urgent; there was a gap of about a year between temporary sheriffs being removed and part-time sheriffs arriving.
Others have expressed concern over comments about pressures on the legislative process. The Parliament was set up to overcome that and to ensure that there is a democratic analysis of all legislation that is passed. This cuts across that basic premise.
There is still parliamentary scrutiny, as I have described. This power gives Scottish ministers powers that UK ministers already have under the Human Rights Act 1998. It allows that to happen in the Scottish Parliament so, to that extent, it is bringing the scrutiny here.
I am sorry, but you are not seriously suggesting that the UK ministers are going to use this power to amend devolved legislation in Scotland, are you?
That power exists.
The power is in the Scotland Act 1998. We would not know whether UK ministers would use it, but the power is there.
Could you refresh my memory? In the Regulation of Investigatory Powers (Scotland) Act 2000, did not we amend the powers—I should know this, because it was my amendment that was accepted at stage 3—for ministers to make certain orders in exceptional circumstances, as the ministers were humble and decided that they would give up those powers because they had not produced an example of when they would require them?
I am afraid that I do not know that act well enough to comment.
It meant that there was a distinction between the powers that ministers had in the Scottish and Westminster acts. I cannot remember exactly which powers were removed from Scottish ministers and which orders they were prevented from being able to make. That set a precedent for a situation in which ministers could not produce an example of when they would require powers. History seems to be repeating itself in the bill. We are yet again giving ministers powers when there is not a previous example of why they would be required.
There is a distinction, which is that in the bill we are saying that these are powers to remedy ECHR incompatibilities. If we knew that those existed at the moment, we would remedy them in the bill. As I said, I do not think that the world of human rights is black and white. Issues might emerge in the future.
Given the non-black-and-white nature of this world, what is in the bill are matters that you think are problems here and now. Are there any matters where you think there might be problems over the horizon?
We are aware of the ones that are at present under challenge. The planning system as a whole is under challenge; court proceedings are pending, which might not be resolved for some time. Litigation is continuing on the confiscation of the proceeds of drug trafficking; the Privy Council has heard the appeal, but no decision has yet been made.
As members have no other questions for the witnesses, I thank Mr Campbell and his colleagues for their attendance on both occasions.
This is not an opening statement, but for the sake of completeness I will say that I am also a solicitor in private practice, dealing exclusively with criminal legal aid work, so I have experience of the fixed-fee system as a practitioner.
To what extent were you consulted on the provisions in the bill? If you were, do you see the results of your efforts in the bill? What do you think about the bill?
We were not consulted at all. When you were told last time round that letters had been sent out to various organisations, you were being told that at the same time as—or just after—the letters had gone out. We were expecting the bill earlier; it was originally due in September or October.
Are there matters that you think are likely to be the subject of challenge in the future, which we should be considering now?
One matter that concerns me is Mr Campbell's comment at the end of his evidence that this is all that the Executive thinks might need to be amended. That cannot be right. I should be interested to know who conducted the audit.
Far be it from me to defend the Executive, as that is not what we are on committees for, but do you accept that there are some issues that are better left until there is a court decision? The law is an inexact science—which is how some of us have made a living at it, because no one knows the answers—so it is better sometimes to wait and see rather than make a change that is not needed.
I agree, and for the cases outstanding at present it is appropriate to wait and see. That is particularly true for the cases about which we still have to hear from the judicial committee, but there are other areas. I am not happy that the audit was carried out by the Executive with no consultation and that it then presented us with the bill, saying that everything that the Executive does, apart from what is in the bill and apart from the grey areas where there might be challenges and where there are differences of opinion, is ECHR compliant. I cannot believe that that exhausts all the problem areas, apart from those where there are good arguments on either side.
That brings me to remedial powers, because the logic is that the Executive agrees with you. It must suspect that other areas will come out of the woodwork. You heard my comments earlier—can you give me your view on the concerns that I expressed?
I cannot express the concerns that I have better than the committee has already done. I do not feel comfortable with the idea that it is up to the Executive to decide on the appropriate way to proceed—whether to use the powers that the Executive will be given in situations that it judges to be an emergency or whether to proceed by a normal legislative path. I do not think that that should be the Executive's decision.
You referred to the Executive undertaking the audit. Who do you think should have undertaken it?
Along with other organisations in the voluntary sector, we think that there should be a human rights commission. That commission should have undertaken the audit. The commission should be a facility for members. That addresses a point made by Mr Matheson and Mr Gallie earlier. How is an ordinary MSP supposed to be able to find out whether there are ECHR issues that have been ignored or side-stepped by the Executive? I do not see that there is any way that MSPs can do that except through organisations such as mine. There should be a more reliable method, especially if the Executive is presenting certificates saying that everything is okay. How can MSPs challenge that if they have no access to decent, up-to-date, independent information?
So you would see an independent human rights commission fulfilling a pre-legislative, scrutiny role?
Yes.
We should move on to the specifics of the bill, first of all the punishment part of a sentence. I believe that Euan Robson has a question.
Not on this part of the bill, but on part 2. Mr Scott, you say in your submission that you think that part 2 is necessary and welcome. I agree that it is welcome, but are there aspects of part 2 that you have queries about? Do you have a view on, for example, the termination of appointments? There is a six to seven-year span of appointment and an upper age limit of 75.
I have no specific concerns other than that it is preferable to have a lower upper age limit than 75. What is said on improving the situation of the Parole Board and making it challenge-proof is probably right.
Returning to punishment, given the questions that have arisen about life sentences, do you think that a different approach might be for courts to work within a range of minimum to maximum sentences for every crime?
I am not happy with the idea of minimum sentences or any situation in which the discretion of the court is fettered—at least, as long as there is the possibility of a judicial appointments board and we can begin to have greater confidence in the judiciary. If we are happy with the judges, it is best to leave them to decide, taking all circumstances into account. Maximum sentences might be different.
Would it then be better in every case for the judge or sheriff to determine a fixed period of sentence that the individual should serve for the crime committed?
Do you mean a period that they would actually serve, as opposed to—
If they committed murder and the judge says 20 years, that is what they serve.
That is what it is proposed will happen and currently happens, although such a minimum recommendation is now made only in a small number of cases.
That would be a result of the bill.
Yes. It will happen in every case, so that in every situation where a life sentence is imposed for murder, what will be called the punishment part will be fixed. My only concern is that care will have to be taken to ensure that the punishment part does not edge upwards. At present, the average length of time for people serving sentences for murder is 13 years. There might be an expectation that courts should fix punishment periods that are longer than that. Care will have to be taken when the 500 or so hearings take place, and there might be appeals. If a punishment part is fixed that the prisoner is not happy with, it is subject to appeal to the High Court.
The policy memorandum says that it will be open to the judge in some cases to specify a period of years that could exceed the individual's life expectancy. Does it concern you that that is life without the possibility of parole?
Such a case could happen and would be compatible with the ECHR. I am never comfortable with a situation in which no hope is held out of someone being rehabilitated, regardless of how long they live or whatever happens. I would prefer that power not to be used in that way, to fix a term for punishment that exceeded the reasonable life expectation of the person, but I cannot say that there would not be such a case or that it would never be appropriate.
I would like to return to the question of transferred life prisoners. My understanding of section 3 is that the bill makes no provision for those who are transferred on a restricted basis, who remain subject to the jurisdiction from which they have been transferred. Nevertheless, once they are resident in Scotland and therefore in Europe, article 7 of the ECHR might apply, so do you think that there might be appeals from those who are restricted?
That would depend on which country they had been transferred from. If it was outside the Council of Europe and not subject to the ECHR, I can see that there might be arguments in favour of that, particularly if one took into account article 14 and the right not to be discriminated against. There might be arguments for bringing such prisoners into line with a prisoner in the next cell.
Clearly you would not want to discourage a transfer from a regime that had a bad human rights record. On the other hand, it is conceivable that there could be a challenge once such people were here. Do you think that we should amend the bill to encompass that situation?
The convention applies to anybody in a country that is a signatory to the convention, so that might be necessary. There could be knock-on problems, as countries might consider no longer transferring prisoners to this country. A prisoner in this country has rights because he is in a country that is a signatory to the convention.
Let us move on to part 3 of the bill. You may have heard my earlier question to the Executive about the nature of tribunals that were or were not covered by the provision of legal aid. In particular, I asked about DSS tribunals. Is that an area that might fall foul—if that is the right expression—of the ECHR?
I agree with what you said about the complexity of proceedings at DSS tribunals—clients of mine have appeared before such tribunals. I got the impression that the Executive was not heading in that direction. I find it a bit disappointing that all that the committee was offered was a list of all the tribunals in Scotland. I cannot believe that the Executive has no idea of what tribunals it proposes to include. If it knows, why does not it let us have that list? If it has no idea, that is even more worrying.
What do you think should be included?
That is an area that I did not have much time to examine. I cannot give the committee a wish list of tribunals that should have legal aid, but a starting point would be some information from the Executive. We could then spot the obvious omissions.
That is something that we may have to return to when we have had a chance to examine the matter in more detail.
Another area in which the Executive was a bit vague was time-and-line and fixed-fee payments. The regulations will allow time-and-line payments in such circumstances as Scottish ministers "think fit". Is that sensible? If not, can you suggest something better?
The problem in dealing with legal aid matters is that the difficulties most often arise in the regulations. Thereafter, solicitors have to battle with the Scottish Legal Aid Board to get payment. Whatever regime is set up in the first place, the accounting department at the Scottish Legal Aid Board seems to operate under different rules. The process is like a game of battleships. It has been improving recently, but it is not always possible to work out exactly where the battleships are.
The Executive gave two examples of exceptional circumstances; first, in relation to the number of witnesses and secondly, in relation to a complicated area of law. Another example could be the case of a woman who has been subjected to domestic violence—which we discussed only last week—and who needs civil legal aid to go to court to take out an interdict. There can be delays in such a process, because there are many forms to complete. Could a case in which somebody had to get to court quickly to take out an interdict be classed as an exceptional case?
Yes, although that would be in relation to civil legal aid in any case, to which fixed fees do not apply. The Legal Aid Board has to be sufficiently flexible in such situations to be able to deal with matters quickly. That is generally the case although, on the civil legal aid side, there are still problems of which the committee is aware, and of which it will become increasingly aware through other research that is being undertaken.
If there are no other specific questions on legal aid, I turn to the matter—I asked the Executive witnesses about this—of other areas that have not been dealt with. The Executive witnesses suggested planning appeals. Would other areas be on your list; areas that might not be quite so far over the Executive's horizon?
There are a few such areas, but I would prefer to take a bit more time to examine them in detail with my colleagues. We have not had very long to consider them. I am not convinced by the suggestion that the bill covers all the clear-cut, challengeable areas and I am not entirely convinced that the Executive necessarily thinks that. If it included certain things in the bill, it might invite earlier challenges and perhaps risk a run of bad luck.
You are surely not suggesting that the Executive is acting on the basis of problems that it knows exist, but which it is keeping quiet about because nobody has noticed.
It is very difficult to say, because the process that resulted in the bill's introduction was opaque.
Currently, human rights and ECHR compliance in general are taking up a fair bit of the Parliament's time. I know that you have views on that. Do you think that the Parliament's—as opposed to the Executive's—mechanisms for handling that are as good as they might be? What suggestions would you make?
That goes back to what I said about the human rights commission. The commission should be available as an independent resource for the Parliament as well as for other public authorities, and could feed into the whole process. Our vision is of a commission that would promote bills such as this, that would conduct an audit of Government departments and that would provide legislation for consideration by the Scottish Parliament's committees, rather than having the Executive examining it. If, effectively, the same people who draft legislation later certify a bill as ECHR-compliant, that does not seem to offer the degree of independence that one would want.
If no other members have questions for Mr Scott, I thank him very much for attending.
For clarity—people sometimes wonder where we are coming from, and SACRO is variously described in the media and elsewhere—we are a community safety charity. We seek to reduce conflict and offending and to increase community safety and the effectiveness of the juvenile and criminal justice systems. We work with offenders to reduce the incidence of crime and to alleviate its impact in society.
I was going to ask about consultation, but you have answered that question. As you know, we were unable to invite people to give evidence until we had the bill in front of us.
No. I think that they have been answered.
You are totally satisfied.
We suggest that guidance notes should emphasise to the judges the fact that they are setting only the punishment part of a sentence, but not taking risks thereafter into account—that will be assessed by the Parole Board. That may be important, because in some other types of cases judges are required to assess risk. We must clarify what the bill requires judges to do. At the committee's previous meeting, Gordon Jackson questioned whether the bill would decrease flexibility because, in future, there would be no way into the Parole Board system prior to the end of the punishment part of the sentence. We must make it clear that the judges will be required to determine only the punishment part of the sentence.
The committee's previous discussion did not make explicit the fact that the custodial part of a sentence includes punishment and protection of the public. I emphasise—this needs to be made explicit—that a life sentence is still a life sentence. There is a minimum sentence—life—for people who commit murder. When, under the bill's proposals, they serve the custodial part of their sentence, there will be a mixture of punishment, which will be determined by a judge, and protection of the public, which will be determined by the Parole Board. The person will then serve the rest of their sentence in the community, but they can be recalled at any time—they do not have to commit a further offence—to serve the rest of their life sentence or part of it.
That is an interesting comment. Perhaps the public do not always perceive the situation in that way.
We felt that the flexibility that the bill proposes should be retained so that judges can examine all the circumstances of a case. It is appropriate that the 20-year sentencing policy no longer applies because it is not contained in legislation—it is not a statutory provision. One assumes that a judge would take into account the seriousness of the offence and all the other factors that would lead to the imposition of a longer sentence, if necessary.
I am a bit disappointed with that reply, given your earlier comments, because it seemed to me that that was precisely what you were asking for.
Do you mean that I was asking for the 20-year rule to be—
You were asking for greater guidance to judges on the kinds of sentences that should be laid down for specific crimes. That is what the bill does.
I agree with John Scott—from the Scottish Human Rights Centre—that the discretion of the High Court should not be fettered in these matters. Although judges have been entitled to fix minimum periods in more extreme cases, they have never been required to do so. Therefore it makes sense that, rather than depending purely on the results of appeals cases, they should begin to think about how they will go about sentencing, especially if they are to be confronted with a large number of cases at one time. It would be good if judges themselves determined the criteria that they would apply in fixing a minimum period.
In my previous contacts with SACRO, it has always been emphasised to me that there are four elements to sentencing: punishment; deterrence; protection of the public; and rehabilitation of prisoners. Is SACRO's view that those elements, in particular rehabilitation, should no longer be considered by judges?
Rehabilitation falls into the hands of the Parole Board for Scotland, which determines what is necessary to protect the public. At what point is the risk sufficiently low to release a person into the community? I should say that I am a former member of the Parole Board—I am experienced in the kind of decision making that happens there—and part of our experience in SACRO is supervising lifers in the community. The Parole Board will take into account the sorts of things that will reduce risk and they are rehabilitative measures. It will ask questions such as, "Is there suitable accommodation? What is the attitude of people in the local community? What is the level of supervision? Will the long-standing drink problem be addressed?" Those questions are all connected with rehabilitation as well as risk. The Parole Board is charged with the time of release—the judge is not.
Mr Dickie said that, in the past, judges were entitled to fix minimum periods but—I am not nit-picking; there is a reason for this—while they could make minimum recommendations, those were in no sense fixed periods. The point is that often people have been in jail—some still are—long after the period has expired. I think that it was possible for people to go to the Parole Board before the minimum period. In other words, the periods were recommended periods.
I take that point. Obviously, Gordon Jackson is correct on the point of law. In many ways, the upside of the disadvantage that he mentioned is that everybody, including the prisoner and those who are planning for release, such as the Scottish Prison Service, will know at what point they can start planning and assessing the risk. The trouble at the moment is that one might go through a lengthy parole process and have a huge dossier of paper compiled by many people at great expense, after which the Parole Board might recommend release and suggest a provisional release date. However, a minister may then decide, for reasons that they need not elaborate on, that there will be no release. Nobody will know quite why the decision was made, but there might be an assumption that the minister thinks that the prisoner has not been in jail for long enough.
I agree, and I think that the upside is important. There is certainty; once the Parole Board decides, it has decided. I like that, and I see why prisoners would like it. Do you think there is a place for flexibility being built in for exceptional cases, rather than every case being set in stone?
The only analogous situation that I can think of relates to determinate prisoners. Judges currently have a role in assessing risk when they are empowered to make an extended-sentence order in certain categories of case, and a supervised-release order in other cases. A judge might think at the point of sentence that there will be risk when the guy gets out in X years' time—it will be a finite term—and can order additional supervision. Under such provisions, the judge's decision, which will be made through a supervised-release order, can be reviewed at the point of release. Something slightly analogous could be built into the system, but I have not thought of a mechanism to achieve that legally.
Neither have I.
That is why we want to ensure that judges are clear about the fact that the courts should properly separate the punishment and risk elements of a sentence. That relates to what Mr John Scott of the Scottish Human Rights Centre said. We want to ensure that sentences do not get longer and longer. The report of the Scottish Consortium on Crime and Criminal Justice says that there is no evidence that tougher sentences have a significant deterrent effect. If we are to have a rigid system, it must be applied correctly. The Parole Board's assessment of risk must come in at the appropriate point.
The Executive seems almost to be encouraging—or at least suggesting—that judges should, in certain cases, think about setting punishments that are longer than somebody's life expectancy, which is effectively a life sentence without parole. I am not sure whether the witnesses agree that judges should go down that road—I can guess the answer. If they went down that road, would it be more honest to give judges the option of a sentence of life without parole?
I agree with Mr Scott on that. He was not comfortable with the idea of people having no hope. If the judges properly separate the punishment part and the risk element, and if they set the punishment part at an appropriate length, it should probably be applied no matter a person's age. On the other hand, if another rule was set, SACRO would have no problem with it; as long as a person had their risk assessed by the Parole Board before they were released, we would be sure about community safety. That is the important part.
The Executive seems to be suggesting that the punishment element, apart from being determined by some tariff or by precedent, is also determined by life expectancy, which seems curious.
I presume—perhaps wrongly—that judges, when determining the punishment part of a sentence, will take account of all the circumstances of the case. That does not limit their ability to take into account the age of the offender. If somebody aged 75 committed a crime for which the judge thought the appropriate punishment was 20 years, it would be open to the judge to decide to reduce that period. I believe that a pretty small number of people would come into that category. I also suspect that not many people serve more than 30 years. However, some may never get out and might like to know that, rather than having to apply for parole every year. That is at least a possibility—I am speculating.
The bill is about human rights. Discrimination is something that human rights stands against, whether on the grounds of age or sex. You discussed consistency with respect to punishment. How, therefore, could a judge in any court determine a suitable term of punishment on the basis of age?
Each case will be considered individually by the judge. We are suggesting that a set of criteria be taken into account.
Would those criteria include age?
They could do.
Would not that cut across European conventions? We are not meant to discriminate on the ground of age.
I do not know.
I want to ask about the constitution of the Parole Board, which is covered under part 2. Your submission says that you think that the changes are necessary. I read that you are just about content with, for example, the provision that fixes the term of someone's service on the board at six to seven years. What are your feelings on the age limit of 75 for members of the Parole Board? Are you content with that?
Again, we do not want to discriminate on the grounds of age. I think that that provision was included because retired judges are needed for the process—there is a case for that. Some people are more—how would one put it—competent at one age compared to another person. Having said that, much younger people might not carry out their duties effectively and some people aged 80 might be able to do so. A decision on somebody's appointment would have to be made somehow but, if there was no way to determine in an individual case, I presume that there would have to be some age limit.
If that provision for an age limit of 75 years—as proposed in new paragraph 2C of schedule 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993—were removed from section 5(3) of the bill, would you have any difficulty with that?
No.
Are you content with the provision for there to be just three people on the tribunal for removal of members of the Parole Board from office?
We have no difficulty with that.
We have no particular views on that.
How does the Parole Board reach its decisions, particularly in its assessment of risk, which is and will be important? It strikes me that there is not much clarity on how precisely the risk is assessed. Does that need to be more in the public domain and to be more sharply defined?
At present, the Parole Board gives reasons for its decisions. It does so in some depth, typically with four or five reasons why parole has or has not been granted. There is a growing body of research literature and guidance on how to assess the risk of reoffending and the amount of harm that might come from that reoffending. Many people who give advice to the Parole Board—including psychologists, psychiatrists and, more recently, social workers—now receive pretty thorough guidance on the factors that should be taken into account.
Perhaps I am betraying my ignorance, but is that kind of information automatically sought? Is the victim automatically consulted?
No. I think the representative from the Executive told the committee that that does not happen. However, the policy is being reviewed and if the secretary of the Parole Board received such information in a letter, he would automatically put it before the board.
Would you like to add anything else before we finish this part of our agenda?
I have had time to reflect on the matter of discrimination on the basis of age. I would argue that, if there is any, it is likely to be positive. For example, a judge might take into account the fact that someone was extremely old when they committed an offence and that the duration of the punishment would therefore have a more severe effect, as the individual would die sooner. Such age discrimination would not run counter to the European convention on human rights.
Would that lead to consistent sentencing?
I suspect that positive discrimination for one side is negative discrimination for another side.
That is right.
I thank the witnesses for their evidence.