Prisoners (Compensation Payments)
The next item of business is a statement by Kenny MacAskill on compensation payments for prisoners. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions during it.
In answers to previous parliamentary questions, I reported to Parliament on the House of Lords judgment in the Somerville case about a time bar for claims of alleged breaches of human rights. As Parliament will recall, those claims arose in relation to the period from the beginning of devolution to the ending of doubled-up slopping out in February 2005.
I have previously told Parliament that the Scottish Prison Service had to set aside £67 million—I apologise to colleagues to whom it was suggested that the figure was £50 million—of public money to pay to prisoners who were claiming that doubled-up slopping out breached their human rights. Today, I will provide a further update on our efforts to address the consequences of the judgment. We are working constructively with the United Kingdom Government, the UK Parliament and the Scottish Parliament to enable the release of up to £50 million of that £67 million to be put to better uses. As I will explain in more detail later, we believe that the issue can be resolved before the summer recess. However, time is of the essence and swift action is needed if that timescale is to be achieved.
The judgment, which was made in October 2007, means that unlike every other public authority in Scotland, and unlike the UK Government, the Scottish Government does not have the protection of a one-year time bar for human rights claims. Thus, for instance, human rights claims arising from conditions in English and Welsh prisons are subject to a one-year time bar, whereas claims from Scottish prisoners are not. We estimate that the Scottish Government could, as a result of the judgment, face more than 20,000 claims arising from doubled-up slopping-out conditions in prisons.
My answers to previous parliamentary questions in November 2007 and June 2008 described more fully the impact of the judgment, along with the practical measures that we have taken to address it. I also undertook to keep Parliament advised of developments in our attempts to persuade the UK Government to remove the anomaly that has been created by the judgment. That is an issue of major importance.
Since I last reported to Parliament in June last year, the number of claims for doubled-up slopping out, and the claims' associated costs, has continued to rise. At 5 March this year, 3,737 cases had been settled at a total cost of more than £11.2 million in compensation payments and associated legal fees. A further 1,223 cases are being dealt with and, on average, around 200 new claims are being raised per month. We are thus faced with a continuing and substantial liability that shows no sign of abating.
The Scottish Prison Service has had to make provision in its annual accounts for £66.7 million in the current financial year to meet the costs of such claims. That is bad enough, but there is also the possibility of claims on other human rights grounds being raised in the future. The absence from the Scotland Act 1998 of any explicit statutory time bar greatly increases the potential liability on the Scottish ministers for such claims.
We therefore concluded that the Scottish Government should have the same protection that is afforded to public authorities south of the border. To achieve that, a change in the law is needed so that claims against the Scottish ministers under the Scotland Act 1998 are subject to the same one-year time bar that applies to claims against other public authorities under the Human Rights Act 1998. As the Somerville judgment related to a provision of the Scotland Act 1998, such action requires to be supported by the UK Government.
Therefore, on 25 October 2007—the day after the Somerville judgment was pronounced—I wrote to the Lord Chancellor, setting out the case for change and seeking urgent action. In his initial response, the Lord Chancellor agreed that this was an important issue and said that he and his colleagues would engage with us constructively on it. I and my officials subsequently had very extensive correspondence and discussions with the UK Government. Those discussions culminated in December last year when the Lord Chancellor told us that the UK Government was not persuaded of the case for action.
However, because of the overriding public-interest aspect, the First Minister took the matter up with the Lord Chancellor. Two weeks ago, the First Minister and the Lord Advocate went to London to meet the Lord Chancellor and the Advocate General for Scotland. Yesterday, following those discussions, the First Minister wrote again to the Lord Chancellor, and the Lord Chancellor has replied, saying that there might be scope for our two Administrations to come to an agreed view on this issue, and suggesting further urgent discussions between senior officials. We welcome that response, as it seems to indicate a desire on the part of the UK Government to arrive at a solution. However, the time for action is short, for reasons that I will describe shortly.
The UK Government had suggested that we in Scotland might address the Somerville issue by changing the law on time bar more generally. However, that would reduce the rights of many deserving claimants, such as those who suffer from pleural plaques or who have been injured through the negligence of employers. We believe that there is no case for such sweeping change: indeed, the Scottish Law Commission has recently argued that the time limits for personal injury cases should be extended, so a reduction in all time limits to one year would be completely wrong.
Time bars are a common concept and exist in most jurisdictions. The European Court of Human Rights in Strasbourg applies a six-month time limit for bringing cases, so what we propose is not unique or even unusual.
It was always intended, from when the Human Rights Act 1988 was enacted, that a one-year time bar for bringing human rights claims should apply. It is completely wrong if claimants circumvent that by instead using the Scotland Act 1998.
The situation that has been created in Scotland by the judgment is untenable and unacceptable. The introduction of a one-year time bar would enable us to draw a line under our liability in relation to claims of the kind that are being made in respect of the Somerville judgment, and so could release up to £50 million for spending on more worthy purposes. It would also reduce our liability in relation to other human rights claims that might arise in the future. Fifty million pounds is a large amount of money. It could pay for the construction of eight new primary schools or 500 new affordable housing units, or it could be used to employ 1,250 teachers or 1,600 nurses for a year. This is, therefore, a real and important issue.
We have proposed a straightforward course of action involving minimal time at Westminster. It would involve an order under the Scotland Act 1988 that would allow the Scottish Parliament to introduce the time bar, followed by urgent legislation in the Scottish Parliament. We have drafted the measures and, with support from both the Scottish and Westminster Parliaments, the legislation could be in place before the summer recess. However, the matter is now extremely urgent, as completion of the process that I have outlined by the summer recess would require that the necessary order be laid before the end of March. We will have to move quickly to achieve that, but I believe that it can be done.
I hope that there will be broad support for that course of action. I am arranging to meet the other parties and look forward to discussing the matter with them. I have also arranged for copies of our proposed draft legislation to be placed in the Scottish Parliament information centre.
In the light of the delay in progressing the necessary change, and because time is now very short if legislation is to be on the statute book by the beginning of the summer recess, the Scottish Government also raised the issue at the meeting of the joint ministerial committee in London today.
We have brought the matter to Parliament now, because we will all share responsibility for taking the issue forward on the lines that I have described, and because we believe that Parliament ought to be kept fully informed in case it needs to take a view.
The issue that has been created by the Somerville judgment is a matter of deep and justifiable public concern. Too much public money has already had to be paid out to prisoners, some of whom have committed extremely serious—indeed, appalling—crimes. We need to bring that situation to an end. The public rightly expects that we should do so as quickly as possible. I hope that that position will enjoy broad support in the chamber.
The cabinet secretary will now take questions on the issues that were raised in his statement. We have about 20 minutes for such questions, after which I will move to the next item of business.
I thank the cabinet secretary for the advance copy of his statement and for briefing me and other justice spokespeople on the issue earlier this afternoon.
The issue of compensation payments for prisoners—many, of course, for slopping out—has been a vexed one, because nobody wants offenders to receive such payments. That is why it was so important that the previous Executive invested so much in ending slopping out in all but one prison.
I ask the cabinet secretary to ensure that the issue is taken forward constructively and collaboratively with colleagues in the United Kingdom Government. This is a highly technical matter and there is scope for considerable debate on the details of the law: I understand that there was a split decision in the House of Lords on the Somerville case. I am sure that we can all agree that the issue must be resolved satisfactorily.
I spoke to the Secretary of State for Scotland yesterday evening and he made it clear that he wants a successful outcome, so I ask the cabinet secretary to receive the latest communication from the UK Government in that spirit. Of course, the secretary of state is meeting the First Minister today.
Finally, the cabinet secretary has made suggestions about what £50 million could be spent on should the money be retained. Can he give further details of what consideration there has been of how such funds might be spent?
I assure Richard Baker that we are dealing with the letter from the Ministry of Justice in the spirit in which we believe it was sent. We have been attempting to negotiate and to seek a solution to the issue since 25 October 2007. It would be fair to say that we now want to concentrate on what can be achieved, especially given the urgency of the situation, as the clock ticks towards the end of March. I also assure him that we will work constructively in the chamber—as we have sought to do, so I am grateful for his opening comments—and with those south of the border. We must resolve the issue. That is what the public expects. They should expect no less, so that is what we will do.
The question of how the £50 million might be spent is broader, but what we have said—I have said it previously—is that it is about time we started looking after our pensioners rather than pandering to our prisoners.
I, too, thank the cabinet secretary for the pre-release of his statement and for the offer of a discussion on the matter, which was taken up on the Conservative group's behalf by my colleague John Lamont.
This is good news, and we are pleased that progress has been made. Clearly, input will be required from other parties, so we are committed to ensuring that the matter can be dealt with as expeditiously as possible. However, perhaps the cabinet secretary could clarify for me why there is such urgency. I know that there are some excellent illustrative examples of how the money might be used, but I am not clear why there is such urgency to deal with the issue before the end of the year, although if needs be, it will be done.
Is the cabinet secretary confident that there will not be an influx of claims as a result of former or current prisoners being notified of the situation by less-than-scrupulous legal advisors, thus reducing the potential savings?
Finally, I suggest that the clawback of the estimated outstanding liabilities might be used to improve the prison estate and thus reduce the prison overcrowding with which the cabinet secretary regales us almost daily.
I am grateful to Bill Aitken for the spirit in which he asked that question. I confirm that we will work with him and his colleagues to achieve a settlement.
As I said in my statement, 200 claims a month are being received. However, we see no reason why there should be a late flurry of such claims if action is being taken. As we know, there is a small industry of firms that deal with such issues. Of course, that is their right and entitlement, although some might wonder about how such work benefits greater society.
The matter has taken on urgency since October 2007 because we do not have the necessary protection. If we are to bring in legislation before the summer recess, the order has to be laid by the end of this month. After all, we must also remember that at Westminster there is a 40-day laying period for instruments and that emergency legislation will then be required here. If we do not lay the necessary order by the end of the month, either there will have to be emergency meetings of the Parliaments north and south of the border, or the matter will not be resolved until the end of the year. Frankly, we think that any late rush—if I can put it that way—that might arise as a result of people trying to get under the wire before legislation comes in would be offset by the need to deal with all the other claims, 200 of which continue to come in every month and, indeed, keep arriving almost every day.
With regard to Mr Aitken's final suggestion, it is quite clear that we have invested substantial amounts in the prison estate. However, it is about time we invested in honest law-abiding citizens, instead of always shelling out to those who damage our communities.
I, too, thank the cabinet secretary for the advance copy of his statement and for the informal briefing to which other colleagues have referred.
I assure the Government that it has the Parliament's general support and, certainly, the support of the Liberal Democrats in resolving the issue of the time bar—or the lack of it—in slopping-out cases, and the resulting release of the earmarked £50 million. However, does the cabinet secretary agree that the focus of his statement is the communication between his Government and the UK Government? Given that he has now raised this issue with Parliament, is he able to place in the public domain all the correspondence that has been sent and minutes of meetings that have taken place to allow us to judge the matter fully or—in the light of the discussions with the other parties to whom he referred—is he able at least to provide us confidentially with some indication of the background to the difficulties? I have to say that I am finding it difficult to understand the nub of the problem.
Will the cabinet secretary also assure Parliament that he and his officials have, since October 2007, responded speedily to all communications from Westminster on this matter? If he shares my view that Governments usually act responsibly on such matters, will he simply tell Parliament what the nub of the problem with Westminster is? Do UK Government ministers now agree that what Scottish Government officials have proposed is, in fact, the way forward in fixing the problem? If not, have any other proposals been made? Does the cabinet secretary understand my scepticism and my feeling that there is a bit more to this story than we have heard in his statement?
I assure the member that, in coming to the chamber, we are being as open and as frank as possible. With regard to putting the correspondence in the public domain, we have both sent and received correspondence and any move to put such material in the public domain will have to be discussed with the Ministry of Justice south of the border to find out its perspective on the matter. I do not think that we would stand on ceremony in that respect. In any case, the freedom of information procedure is available to anyone who wishes to act on the matter.
I can certainly assure Robert Brown that we have been trying to reach a solution since I first wrote to the Lord Chancellor, Jack Straw, on 25 October. To be fair, some of the responses that we have received from the Government south of the border have been technical; for example, it was suggested that we might be able to resolve the problem by changing the law of damages in Scotland. However, given the important step that we are likely to take this afternoon with regard to pleural plaques, it is rather retrograde to suggest that Parliament should make those who suffer from pleural plaques and other asbestos-related conditions, or who are knocked down in car accidents and so on, subject to a one-year time bar when, in fact, the Scottish Law Commission has recommended that the current three-year limitation be extended to a quinquennium.
We do not quite know what the UK Government's final position is. However, as Mr Baker pointed out, it has indicated that it is willing to continue discussions, so that is what we will do. However, we have ruled out making matters worse for citizens who suffer industrial injuries, vehicle accidents or whatever else. All that the Government seeks for our people and our Government is the rights and protections that exist south of the border. We do not seek something better; we just seek parity. [Interruption.]
Will the person whose phone is on kindly turn it off, please?
Can the cabinet secretary—[Interruption.]
Order. Somebody has a telephone turned on. Will you please turn it off?
Can the cabinet secretary confirm the process that he is asking us to go through? My understanding is that the second step would be emergency legislation in the Scottish Parliament. We know all about that process, as we have just been through it with the budget. My understanding from what the cabinet secretary said is that all the UK Government would have to do is to lay an order. Would that simply be a statutory instrument that would be typed up and formally laid before Parliament, and some time later the job would be done?
The matters in question are extremely technical, but Nigel Don is right. An order in council in Westminster would require 40 laying days. My understanding is that 40 laying days in Westminster are not 40 consecutive days, but 40 parliamentary sitting days. I also understand that matters there are complicated by the Whitsun recess, which we do not have. Once matters are dealt with in Westminster, we can deal with emergency legislation, which we have done in the Parliament recently with the Budget (Scotland) Act 2008, and at other times since 1999.
As I have said, because of the complexities that are involved, unless the instrument is laid by the end of this month we will not be able to deal with the problem before the summer recess. If we do not do so by then, we will have to reconvene both Parliaments during the summer or, as is probable, not resolve matters until the end of the year. Mr Aitken raised that matter earlier. There is a ticking clock.
Equally, we must recognise that 200 claims are coming in to us every month, each and every one of which can mean our paying out compensation to a prisoner, and paying out even more on the legal costs. We must restrict the damage to the public purse. It has been mentioned that it is not simply that there is indignity in our having to pay out, as that £50 million could be released for the Scottish Government to spend. Whether Mr Aitken wishes to argue for investment in the prison estate, or whether other members or the Government wish it to be spent on other things that would make our communities better, it is better that we use that money than for it to languish in accounts.
I agree that the £50 million is a significant sum that can be put to better use. Can I take it from what the cabinet secretary has said that that £50 million will not be provided for the prison estate? I would like a yes or no answer, please.
The Cabinet will have to make a decision on that—I cannot take such decisions alone. However, I can say that the Government has always said that we want to ensure that we look after our pensioners, not pander to our prisoners. We are putting record investment into the prison estate because of the state of the estate that we inherited. The Government has, in the recession, genuine priorities in respect of getting our economy moving and making it better, building houses, providing schools and creating hospitals. Funding lawyers and their clients is not a priority.
I thank the cabinet secretary for his statement. The matter is extremely important, and I am sure that there is a great deal of public interest in it. Can the cabinet secretary outline any measures that could be taken, perhaps through the Criminal Justice and Licensing (Scotland) Bill, that would enable victims to secure increased compensation from people who have perpetrated crimes against them?
Mr Maxwell asks an excellent question. It is clear that individuals are aghast that prisoners are receiving substantial claims payments at a time when pensioners often go without. If the tabloids are to be believed, prisoners sometimes spend the money that they are given on making things worse for themselves and our communities.
Section 84 of the Criminal Justice and Licensing (Scotland) Bill, which was introduced on 5 March, will provide for courts that have made an order of compensation to be able to review that order. If a prisoner, an accused person or a convicted person receives such funds from the Government, wins the lottery or receives an inheritance from their granny, it should be possible to review the situation. We hope that members of all parties support that measure.
I assure Stewart Maxwell that we will also consider other measures that may be capable of ending the scandal of the Government's having to shell out money to prisoners when many people who have been their victims are in much worse conditions than they are.
I thank the cabinet secretary for providing prior sight of his statement and for the briefing at lunch time. I agree with Bill Aitken that all parties must contribute.
Does the cabinet secretary agree that it would help if all parties spoke to their members in the Westminster Parliament and assured them that the proposed measure would not be a precedent and that they need not be afraid that it will be used to prise open the Scotland Act 1998? I strongly suspect that that is what has been causing the logjam.
I give Margo MacDonald an absolute assurance that that is the position. As I mentioned in my statement, we have lodged in SPICe the draft proposals, which are clearly restricted solely to addressing the anomaly. This is about protecting our communities and ensuring that those who have committed crimes against them are not unjustly rewarded. As I said, we will happily restrict that. However, the Government reserves its right to argue on the constitution in future elections. In the interim, we urge everybody in this Parliament and elsewhere to work together to make our communities safer, to free up the £50 million and to end the manifest injustice whereby the victims of crime lose out while the perpetrators gain at our expense.