Bail, Judicial Appointments etc (Scotland) Bill
The next item of business is the debate on motion S1M-1079 in the name of Jim Wallace, which seeks agreement that the Bail, Judicial Appointments etc (Scotland) Bill be agreed to.
The Bail, Judicial Appointments etc (Scotland) Bill was introduced on 25 May this year. The fact that we are debating stage 3 on 5 July demonstrates that it has taken a great deal of commitment from all concerned to enable us to get to this stage before the summer recess. It was important that the bill be passed before the summer recess so we could appoint part-time sheriffs and have legislation in place by 2 October.
I want to thank the convener, members, clerks and officials of the Justice and Home Affairs Committee for the efficiency with which they dealt with stages 1 and 2 of the bill and for their co-operative handling of it. I want to extend a personal thanks to the Deputy Minister for Justice, Angus MacKay, for having borne the brunt of the ministerial work relating to the bill. I also want to thank officials in the justice department for the work that they have done. It is clear that this is an important piece of legislation and that it has required a lot of intensive work.
I hope that the Executive has co-operated and collaborated during the passage of the bill. We have listened carefully to the views that have been expressed by distinguished lawyers and experts on human rights, such as Professor Chris Gane, and by the Law Society of Scotland, Victim Support Scotland, the Sheriffs Association and the District Courts Association. When it has made sense to do so, we have willingly lodged amendments, and the bill is the better for all the work of the Justice and Home Affairs Committee and the representations that it received, distilled and put forward in its reports.
We have removed the power to appoint the members of the tribunal to remove part-time sheriffs from ministers' hands and put it into judicial hands. Greater security of tenure has been conferred on part-time sheriffs by stipulating that their reappointment will be automatic unless one of the grounds that are specified in the bill applies. We have brought the procedure for removing a justice of the peace into line with that for the removal of a part-time sheriff. We have also lodged an amendment that allows councillor justices to remain eligible for appointment to the justices committee.
My thanks are extended to all those who have expressed a view on the bill, who have helped to ensure that it will be a sound piece of legislation. The passing of this bill before the summer recess will enable the appointment of part-time sheriffs to proceed, thus relieving the burden on our sheriff courts. It will also ensure that our district court procedures on bail, under Scots law, can stand scrutiny under the European convention on human rights.
This is an important bill. It is the first piece of legislation that the Executive and the Parliament has dealt with that specifically addresses ECHR concerns. Throughout the bill process, I have been impressed by the readiness of members to accept the key importance of the convention and the need for Scotland to ensure that our laws and procedures are constructed in accordance with the rights that are guaranteed by it.
As I know only too well, the process of ensuring ECHR compatibility is not always comfortable. We may support the underlying values of the convention, feeling that our legislation already embodies them, but it is sometimes difficult to acknowledge instances in which it does not. The process of this bill has shown that when there is a commitment to the ECHR and the principles that it represents, much can be achieved through a constructive and sensible approach. I believe that the European convention on human rights should not be about conflict, but about development and acknowledging mistakes, when necessary, and seeking improvement. Most of all, it should be about putting into practice our beliefs in fundamental rights. I am therefore grateful for the approach that members from all parties have taken and I commend the bill to the Parliament.
I move,
That the Parliament agrees that the Bail, Judicial Appointments etc (Scotland) Bill be passed.
With the exception of the emergency Mental Health (Public Safety and Appeals) (Scotland) Act 1999, which was passed in the aftermath of the Noel Ruddle affair, this must count as some kind of record for getting a piece of legislation on to the statute book. It feels as though the bill was introduced only about three and a half minutes ago. Paradoxically, we have run a marathon in that time to reach this point.
Unlike the Conservatives, the SNP does not bewail the incorporation of the European convention on human rights: we regard it as the minimum standard that we should seek to achieve in all that we do in Scotland. For that reason, we have accepted the need to make changes to bail. The truth is that there will be precious little difference in the granting and refusal of bail. I wish that the Conservatives would accept that, instead of taking the line that they have taken today. In practice, the bill will not make that big a difference.
Although the speed with which the Justice and Home Affairs Committee has had to deal with the bill has been breathtaking, I do not want to repeat my criticisms of that today. I understand why the minister was so concerned to have this bill passed. The impact of the Starrs and Chalmers case, which effectively found against the use of temporary sheriffs, was immediately felt in Scotland's courts, and the extent to which the justice system had come to rely on the extensive use of temporary sheriffs was perhaps not fully understood until they were no longer available. Arguably, that was a failure of previous Administrations, who did not monitor the situation.
The use of temporary sheriffs had been criticised for a considerable number of years. A main concern was that it was a way of getting justice on the cheap, as temporary sheriffs do not have rights to a holiday entitlement and other benefits—although that fact may give rise to what Phil Gallie anticipates as a trade union for sheriffs. Critics were equally concerned that the annual process of hiring and firing substantially reduced the appearance of impartiality, which is essential in our courts. Some of those critics were well known and wrote in the press years ago—people such as Ian Hamilton QC, who has been concerned about the use of temporary sheriffs for many years.
Unlike the Conservatives, I believe that it is right that, where possible, the Executive should anticipate successful challenges. My criticism in the past has been that the Executive did not properly anticipate challenges and that it did not do so in the case of Starrs and Chalmers, although it had been widely predicted that the Starrs and Chalmers decision would be unfavourable to the use of temporary sheriffs.
Was any assessment made of the likely effect on court rotas of the withdrawal of temporary sheriffs? It almost seems as if the Executive was caught by surprise by the impact of their removal. The result has been a period of profound disruption in Scottish courts. Trials have been set down for dates many months in the future and other business has been delayed almost indefinitely in some areas.
Those who use our courts will be relieved when the new part-time sheriffs are in place and there can be a return to some semblance of normality, although the events in the High Court in Glasgow last week suggest that normality in Scottish courts may be relative.
Surprisingly, the section on justices who are councillors turned out to be the section that generated most correspondence. Understandably, that came mainly from individual councillor JPs. Unfortunately, the alternative mechanism that they identified as preferable to removing them from the bench was not a measure on which the Parliament was competent, even if it had been politically acceptable, which is doubtful. That will be of little comfort to them, but it is difficult to see how the potential problem could have been solved other than by what is proposed in the bill.
Despite the short time scale for processing the bill, the Justice and Home Affairs Committee identified some serious shortcomings that required to be rectified before it would allow the bill to proceed. To its credit, the Executive accepted almost all of the committee's recommendations. On behalf of the committee, I thank the Executive for doing that.
With the agreed amendments, the SNP can support the bill. It is hoped that the woes of court practitioners will now be alleviated.
I am a little disappointed that ministers did not use their ingenuity to find a means of introducing into the bill Tony Blair's ideas on on-the-spot fines.
We express regret that the sections on bail seem to have weakened the bail laws. We take some assurance from the words of Roseanna Cunningham and the minister that these provisions will not induce a major change in the operation of the bail laws as they are perceived by the public. We will watch this issue very closely and—believe it or not—we will bring it back to Parliament by some means or other if we find that the bail laws have been weakened.
Section 5 was not debated today. As Gordon Jackson said at a recent meeting of the Justice and Home Affairs Committee, temporary sheriffs are no more. In fact, when one examines section 5, one sees that there is still a place for temporary sheriffs. There is a continuing role for those who were appointed before enactment of this bill. Given the Starrs and Chalmers decision, that comes as a bit of a surprise. As ministers have not seen the need to change it, we will go along with it.
We have had a good debate on councillors today. It is right that we have paid tribute to many long-serving and capable JPs who were councillors. I am a little disappointed that the minister could not find a way to retain some of their knowledge and experience on the bench, but I would not want judgments at whatever level to be challengeable.
The failure to accept Roseanna Cunningham's amendment on the Lord Advocate and the Solicitor General being party to the appointment of those who will sit in judgment on prosecutions is a case of allowing poachers to appoint the gamekeepers. Difficulties may lie ahead.
Overall, time has been the enemy on the bill. Roseanna Cunningham said that it seemed as if it had been introduced three or four minutes ago. In fact, it will be a fortnight tomorrow since it was introduced. I do not think that that makes for good legislation. Ministers must consider that issue in respect of future legislation. I recognise that we are working under pressure from the European convention on human rights. It is pointless to hark back to that continually—it is in the past and we must look to the future. We must ensure that our law conforms so that no more verdicts and decisions of our courts are challenged.
In respect of the need for haste and our support, I refer members to the case last week in which a person involved in the drugs scene was discharged because the case was time barred. That is the last thing the Conservatives want and it is one reason why we are supporting implementation of the bill today.
I do not know whether I am speaking only for myself or for all members of the Justice and Home Affairs Committee when I say that I was hardly filled with great excitement when I discovered that the committee was to discuss something called the Bail, Judicial Appointments etc (Scotland) Bill, but the subjects that we have discussed and that have been introduced by what in a few minutes' time will become an act are vital.
We have heard that the changes to the bail procedures in Scots law are necessary to bring us in line with the ECHR and to ensure that our bail procedures are robust and are able to stand up to the highest scrutiny. We have also heard, in committee and from the Deputy Minister for Justice in Parliament, that that will not affect the standards of bail decisions or lead suddenly to vast numbers of people being granted bail who previously would have been refused it.
We have also heard about the Starrs and Chalmers decision which, although it was predicted, has caused difficulties in our courts in the past few months. It is clear that we needed legislation to address those problems; now that it is in place it will be welcomed by everyone who is committed to an effective criminal justice system.
Roseanna Cunningham was right to say that it is perhaps surprising that the sections of the bill that caused if not the most controversy, certainly the most discussion, were those that dealt with councillor JPs. We discussed that issue extensively this morning. I would like to reiterate the remarks that I made when we discussed Phil Gallie's amendment in committee. People cannot have it both ways: either they can criticise the Executive for not anticipating something or they can criticise the Executive for trying to anticipate something. In this case, the Executive is rightly anticipating a possible challenge and is heading it off before it can become successful. The Executive should be congratulated when it gets something right and on this occasion I believe that it has got it right. There is another issue about the principle of whether councillors should sit as lay justices, but that is a separate argument. The legal argument was worth having and the right decision has been taken.
The bill is necessary. I am glad that we have been able to get it through the committee and the Parliament as quickly as we have. The maxim that rushed legislation is always bad legislation is not true. Although the bill has gone through the parliamentary process is remarkably quick time, it is not a bad piece of legislation. Rather, it is necessary legislation that will be welcomed.
It is probably agreed on all sides—notwithstanding specific concerns—that the bill to which we are about to agree is necessary and urgent. I would like to put on record my gratitude to everyone who participated in the various debates that we have had, particularly the Justice and Home Affairs Committee for its constructive and tolerant approach to our proposals.
I will deal briefly with a point that was left over from our earlier discussions. Phil Gallie raised a question about bail exclusions. At the time, I did not have an opportunity to address the matter. It is not a question of the Executive sticking a finger in the air to gauge whether bail exclusions are a problem; the bail exclusions have already been repealed in England and Wales, for good reason. Following the case of Caballero v UK last year, the UK Government conceded that there was a breach of the ECHR. That case made it absolutely clear that the law had to be altered specifically in relation to bail exclusions. It is not a matter of just guessing and maybe thinking that we have a case to answer; the matter is founded in case law. We know that we are in breach of the ECHR and we have to do something about it.
The minister refers to a case that took place last year. Here we are, just a fortnight after introducing a bill to redress the matter, passing the bill. It seems that an awful lot of water has passed under the bridge, given the comments that the minister has just made.
The bill is not just about bail; it is also about judicial appointments. It brings a number of issues together. One of the relevant judgments emerged only relatively recently. That is why the bill has been somewhat delayed.
We cannot pick and choose on compatibility with the ECHR—we either sign up to it or we do not. We can try to develop effective legislation that is compliant but which also protects our communities and their interests. The bill will provide legislation that achieves that.
I have detected a degree of movement, if nothing else, in the Conservative party's position on the ECHR during the discussions on the bill. Initially, we heard from Conservative members statements that were quite difficult to reconcile with the position of the UK Conservatives as expressed at Westminster. The tone of the Conservatives' comments seems to have softened.
If we are to participate in the ECHR with countries such as France, Germany, Italy, Spain and Sweden—as we, in Europe, would expect to do—we have to be a bit more enthusiastic about what its provisions deliver and what we have to do to comply. We must also recognise that if countries such as Albania, Andorra, Cyprus, Estonia, Liechtenstein and Moldova can cope with the ECHR, can comply with it and can give it due process in their law, it should not be an excessively onerous challenge for this country to do likewise. I hope that we have moved the debate on in that respect.
It was important to get the bill on the statute book as quickly as possible. For that reason, the normal process of consultation and of the parliamentary passage of the bill has, I fairly and openly acknowledge, been rushed. That was because we were responding to judicial decisions and because of the fast approach of the summer recess. That made the speed of the legislative process unavoidable. I repeat that, while that was unavoidable, it was not desirable. The Executive will do its best to avoid having to put so much pressure on the committees, on the Parliament—
And ministers.
And on ministers in the future.
Having said that, the bill has highlighted the importance of the work done by the committees in scrutinising legislation. The Justice and Home Affairs Committee and the Subordinate Legislation Committee both did sterling work in considering the bill at very short notice. They made important, detailed recommendations that the Executive was happy to take on board. We were able to lodge amendments to meet the points that were raised and the bill in its final form is, I have no doubt, better for them.
Although the Bail, Judicial Appointments etc (Scotland) Bill is limited in scope, it is a very important measure. It will bring various aspects of our criminal law into line with the ECHR. I have noted some of the points that have been raised in today's discussions that were not dealt with in the bill, and I am confident that we will return to some of them on another occasion. I commend the bill to the Parliament.
The question on the motion to pass the bill will be put at decision time.