Convention Rights Proceedings (Amendment) (Scotland) Bill: Stage 1
The next item of business is a debate on motion S3M-4396, in the name of Kenny MacAskill, on the Convention Rights Proceedings (Amendment) (Scotland) Bill. We have a little time—a little flexibility—available in the debate.
As I just mentioned, the bill stems from the House of Lords judgment in the Somerville v Scottish Ministers case. Members will recall that we made a commitment to introduce before the summer recess legislation to deal with the issue. We have delivered on that commitment, so I hope that Parliament will take the final step by passing the bill.
The judgment has meant that, unlike every other public authority in Scotland and the United Kingdom Government, the Scottish Government does not have the protection of a one-year time limit for human rights claims. The bill will remove that anomaly by establishing for human rights claims under the Scotland Act 1998 the same one-year limitation period as exists for claims under the Human Rights Act 1998.
This is not just a theoretical legal issue. As I have told Parliament, as a result of the Somerville judgment, the Scottish Prison Service had to set aside £67 million of public money to meet claims for doubled-up slopping out, more than £11 million of which has been paid out. The bill will enable us to draw a line under that liability and will provide protection against indefinite exposure to future claims that might arise from alleged breaches of convention rights.
Since the issue stemmed from the wording of the Scotland Act 1998, we needed to secure the UK Government's agreement to the proposed change. After lengthy discussions, we succeeded in securing that agreement. The Scottish Parliament then had to be given competence to legislate. An order that gave Parliament such competence was made on 10 June, having been approved at the Westminster Parliament and here at Holyrood.
The bill is straightforward and reflects the approach that I outlined to Parliament in my statement on 11 March. It will require proceedings against the Scottish ministers for an alleged breach of convention rights to be brought within a year of the alleged breach, or such longer period as the court or tribunal considers equitable, having had regard to all the circumstances. That will bring the Scotland Act 1998 into line with the equivalent provision in the Human Rights Act 1998. The new time limit will apply to proceedings that are brought on or after 2 November 2009, which means that it will apply not only in cases where the alleged breach took place after that date, but in cases where the alleged breach took place before 2 November but the petitioner had not brought their claim to court before then.
The broad discretion that will be given to the court to allow cases outwith the one-year time period will serve as an important safeguard. It will ensure that the court can allow a case to proceed after one year when it is equitable to do so. In reaching a decision on that matter, the court will be required to act compatibly with the petitioner's human rights.
How does the cabinet secretary respond to the suggestion that although the justification for the bill in relation to prisoners slopping out might have popular appeal—many people feel that prisoners whose human rights have been abused do not deserve compensation—the bill will have far wider applications?
The bill could prevent members of the public whose human rights might be infringed in the future from taking action, if they were unaware that actions had been taken. For example, a long process of freedom of information requests and appeals, followed by appeals to the Scottish Information Commissioner, might be necessary before someone had sufficient facts at their disposal to know that their human rights had been violated or infringed. Given that, how does the cabinet secretary respond to the Law Society of Scotland's proposal that the one-year time bar should relate to the date when an individual became aware of the facts rather than the date when the event took place?
As I said, the ability to seek to overturn the time limit will be available, as with all damages cases in Scotland. In damages cases, the triennium applies. If somebody breaks a leg or their flight is delayed and they are absent because of circumstances that are beyond their control, so that a claim cannot be lodged within three years, the court takes action. However, such judicial discretion is not intended to apply to somebody who has not bothered to take an interest or make an investigation. The same provision will apply to the one-year time limit in the bill.
On the Law Society's point, I make it clear that we are seeking not to introduce anything new, but to restore what was thought to apply in Scotland—the one-year time limit. That position will not be unusual to Scotland. We seek to apply to Scotland what applies elsewhere, to give the Scottish Government the same rights as other Scottish bodies and bodies south of the border. That is not predicated on a whim or a fancy by either the Scottish Government or the UK Government. The one-year period has been fixed after debate and discussion in Europe. Indeed, in Europe it is viewed as the norm.
Damages claims are complicated matters on which, for example, Bill Butler always has interesting points to make. We have a great deal of sympathy with such points, but human rights cases are distinct from cases to do with injuries that may result from asbestosis or a car crash, which is why the European norm of one year should apply, as happened with the UK Human Rights Act 1998. It was the norm that we thought applied in Scotland before the Somerville case made us think again. We are therefore now simply seeking to reaffirm in Scotland the position that we thought was the law, and to ensure that rights here are consistent with those south of the border and elsewhere.
The Law Society of Scotland is perhaps gilding the lily. On the issue of the one-year period, people will still have opportunities to claim if they have good reason for not having been able to pursue a human rights claim. That is similar to the way in which people still have opportunities to pursue a damages claim within the triennium if they have good reason for not having been previously able to pursue a claim.
I thank members throughout the chamber for the consensus on this important issue. It has been a good example of how all parties can work together in the public interest. I hope that the consensus will continue throughout today's deliberations.
Following my original statement, consultation was mentioned. We acknowledge that people need to be made aware of the change that is being made. Robert Brown made a similar point earlier when we considered whether to treat the bill as an emergency bill. That is why we have informed a range of interests—including all serving prisoners—of the proposed limitation period.
We stated publicly our desire for a change in the law as long ago as November 2007, so the change should not come as a surprise to anyone. We originally envisaged that the time limit would apply from 31 July, but parliamentary officials expressed concerns that that deadline might breach convention rights. The Government does not accept that view but, given the importance of the issue, we want as much consensus as possible about the bill. The bill therefore provides that the new one-year time limit will apply to proceedings brought on or after 2 November.
There has, of course, been comment about our proposals since first we made them. Let us be quite clear: as I said to Mr Harvie, the bill is not about removing anybody's right to seek redress for breaches of human rights. The grounds on which individuals will be able to make such claims will remain completely unchanged, and the time limit that the bill will introduce is the same as the time limit that currently exists under the Human Rights Act 1998. Any suggestion that the bill will somehow deprive anyone of their fundamental rights is completely unfounded.
The Law Society has proposed certain amendments that would change the period from which the one-year time limit runs: instead of running from the date of the alleged breach, it would run from the date when the person became aware of the breach. I cannot support the amendments for a number of reasons. First, and crucially, they are incompetent. The section 30 order, which gives Parliament the power to pass the bill, is narrowly drawn and requires the time period to run from the date of the alleged breach.
Secondly, the amendments are unnecessary. No evidence has been provided as to why the formulation in the bill is problematic. Thirdly, they are inconsistent with the time limit in the Human Rights Act 1998. Our aim is to ensure that a consistent time limit applies to all human rights-based claims against public authorities. We should be wary of any amendment that, in seeking to cure one inconsistency, ends up creating another.
From day 1, there has been general agreement that the anomaly that was identified by the Somerville decision needs to be addressed. The bill will do that fairly and effectively. I therefore hope that Parliament will endorse our approach.
I move,
That the Parliament agrees to the general principles of the Convention Rights Proceedings (Amendment) (Scotland) Bill.
The issue of compensation payments for prisoners as a result of slopping out has been extremely controversial, but the debate today should not be. We all agree that Parliament must act to ensure that the payments can be curbed.
There has, understandably, been great concern among the public that the payments have been made. Of course we want the several million pounds involved to go not to offenders as a result of their incarceration, but to investment in key areas of Scottish life, such as health and education. There has been anger that people who have been put in custody because of serious offences can, as a result of their time in jail, receive some £2,000 in compensation payments if they can show that their rights have been breached.
The Somerville judgment greatly extended the potential for the number of claims. A loophole in legislation has been exploited as claims against Scottish ministers have not been subject to a one-year time bar, as they are for UK ministers or indeed for other public authorities. It is right to seek to close that loophole today.
We understand the need to achieve our aims through the curtailed parliamentary process for emergency bills. As the Law Society points out in its briefing, that process has not allowed for the usual consideration of amendments. I am pleased that the society has scrutinised the bill and raised important matters for consideration, but I am satisfied by the arguments that the cabinet secretary has just made that we should proceed without amendment. I understand the legitimate reasons why the bill must be passed as an emergency bill, and therefore why there is not the usual capacity for further debate.
However—this relates to issues that Patrick Harvie raised—I wonder whether other consequences could be considered by Parliament if the Scottish Law Commission's draft limitations (Scotland) bill were to be progressed. If appropriate, we could have further opportunities to discuss the issues that Patrick Harvie and the Law Society have raised.
ln his statement to Parliament in March, the Cabinet Secretary for Justice told us that the Scottish Prison Service had had to make provision in its annual accounts for £66.7 million in the financial year to meet the costs of claims for slopping out. He made it clear then, as he has today, that 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 that the result would be the release of up to £50 million for spending on other, more worthy, purposes.
I am pleased that we can now introduce this one-year time bar, following the successful conclusion of dialogue between the Scottish and UK Governments. The clear intention is that, after we vote on this bill today, the UK Government will seek the agreement of the Westminster Parliament to a comprehensive solution for all three devolved Administrations through primary legislation. The process has not been simple; it has taken considerable time, and complicated legal questions have been discussed, and are being discussed again today. The initial House of Lords judgment on the Somerville case itself was a split decision. There has also been some debate over the best legislative vehicle to achieve change.
However, through the discussions it has been clear that the legislative solution that has been pursued by ministers has been the right one. I am pleased that UK and Scottish ministers were able to reach agreement. Ministers here have clearly been right to pursue this issue to what we hope will be a satisfactory conclusion. I am pleased that the Secretary of State for Scotland has, in turn, used his good offices to help the process. It is clear that since he came to office he, too, has appreciated the need for the speediest possible resolution.
I have no doubt that there will be debate about the history of the issue, but there can also be no doubt that, during the previous session of Parliament in particular, there has been massive investment in Scotland's prison estate in order to end the practice of slopping out in our jails. Chemical sanitation still remains in Peterhead—although that will have to be resolved, it is a different procedure. It was right to invest in our prison infrastructure, not only because the Scottish Government must not be exposed to the potential for such claims in the future, but because our prison estate must be fit for purpose. Human rights should not be infringed. However, a key issue is the restriction of further claims—although they may not be eradicated by this legislation today. It would be helpful to know from the cabinet secretary how many claims the Scottish Government still expects to receive in the future. However, clearly and happily, there should not now be the potential for 20,000 claims, as was opened up by the Somerville judgment.
The fact that this is a complex issue has also been borne out by the revised position on the commencement of the legislation, which will now be in November rather than in July. I understand that that was done not on the basis of legal advice to either Government but on the basis of advice from the Parliament. I will defer to legal opinion on this, although it seemed to me that a July commencement was reasonable, especially given the discretion that will be afforded to the courts under proposed new section 100(3B)(b) of the Scotland Act 1998. However, it would be useful to hear from ministers what impact that will have on potential future costs. Is it still hoped that there will be savings of some £50 million, or will that figure now be reduced? The other key question is about in what the Scottish Government intends to invest the savings.
There remain the issues of prison capacity and the proposal for a pilot community court in Glasgow. There is also the understanding that the cabinet secretary is to announce significant additional funding for community sentences. It would be helpful to know to what extent they can be funded from the savings. Of course there are pressures on public sector spending, but the demands in the justice system are none the less important and significant.
There will be no savings if the bill is not passed, which is why we are pleased that it can be decided on today, in a single day, by Parliament. It is being concluded with co-operation between the Scottish and UK Governments and Parliaments.
Aware as we are of the need to pass the bill expeditiously, we intend to support it without amendment today.
We would all agree that the extraordinary procedures that are being adopted should be used only sparingly but, in this instance, it is totally justified to proceed in this fashion.
I concur completely with the views that the Cabinet Secretary for Justice expressed on the somewhat narrow legal points that exist. I accept the point that Patrick Harvie made and understand his concerns, but he must appreciate that those who have not been able to lodge claims timeously have always had available to them the remedy of application to the court for a waiver of the limitation of actions or the triennial prescription. The issues that he raised are perfectly worth raising, but procedures are in place to ensure that no one will fall through the cracks in that respect, so we can proceed with confidence.
The benefit of the bill—I do not wish to trawl through its history—is that it will remove a problem that has been a bit of a running sore for quite some time: there has been considerable public resentment at the fact that people who are considered to be undeserving can benefit at the expense of the Scottish taxpayer.
I do not intend to press Bill Aitken on the point of substance, but does he at least agree that an individual whose human rights have been violated and who has then received compensation does not "benefit"? It is about something that should not have happened to them, not simply something that should not have happened to the public purse.
If Mr Harvie is asking whether I approve of slopping out, I state clearly that I do not. I have never suggested that prisoners should have to live in unsanitary or Dickensian conditions, but there is a simple way to avoid doing that: namely, not to commit crime and get a custodial sentence.
One or two issues are worth debating a little further. I concur with Richard Baker's view on the date at which the bill comes into effect. The cabinet secretary and Government have similar concerns. On balance, we might have been as well to pursue the 31 July date, but I appreciate that there are genuine risks in that and that, in the circumstances, it would not be wise or prudent to do other than what is proposed in the bill. We do not wish to be dragged once again through the courts and, possibly, to face losing recoverable revenue as a result.
I suspect that, in the days and months ahead, there will be various debates on budgetary considerations. For once we will, I hope, have more money than we thought we had. Members may have individual ideas as to how that money might be used within the justice account or elsewhere, but we must ensure that it is forthcoming.
What is happening today reflects well on everyone. The Westminster Government is to be congratulated—as, indeed, is the Scottish Government—for seeking to achieve an agreement that enables the bill to be processed as quickly as it will be. Were we not to pass it today, we would find ourselves under serious public criticism, bearing in mind the history of the matter. I reiterate the undertaking that I gave earlier on behalf of the Conservative party that we will process the bill as expeditiously as possible.
Like other parties in the Parliament, the Liberal Democrats support the bill and have done so from the earliest stage. The need for it arose from a contentious and, as Richard Baker pointed out, divided ruling by the House of Lords in the Somerville case—which refers to an earlier contrary decision in the same case by the Court of Session—on the interaction of the Human Rights Act 1998 and the Scotland Act 1998. However, its real significance was the door that it opened to a flood of claims on slopping out as a result of the Robert Napier case.
It is clearly in the public interest that slopping out claims be restricted as narrowly as possible. It is also in the public interest that up to £50 million of public funds be released from compensating such claims to be spent on more beneficial public purposes. I agree with Bill Aitken that the action that the Westminster Government and the Scottish Government have taken to deal with the matter is a useful example of good co-operation.
At stage 3, I may say something about the further use of the funds, but this morning I will examine closely whether the bill is watertight, and will do what is intended and not do what is not intended. It is fine to agree to the principle of the bill, but it is the duty of Parliament and its committees to scrutinise its detail and to question the Government on that. That is why I asked whether it might have been possible, despite the use of the emergency legislation procedure, to do a bit more to spread information about the issues and to have the opportunity for more detailed scrutiny earlier.
I will ask the Government some detailed questions. First, will it clarify precisely who and what the bill applies to? According to the bill, it applies to the Scottish ministers, but not to other public bodies such as councils. I think that that is for technical reasons that relate to the interaction of two acts. I presume that the bill applies to the Scottish Prison Service—that is its purpose—which is operationally independent of the Scottish ministers, but what about bodies such as NHS Greater Glasgow and Clyde, the Scottish Housing Regulator or Her Majesty's Inspectorate of Education? Is the Crown Office covered by the phrase "the Scottish Ministers"? What about the Scottish Children's Reporter Administration or, in this time of economic crisis, various enterprise bodies?
We must be clear exactly who and what the bill applies to so that we can understand its implications, which would have been the point of early scrutiny. It would be helpful if the minister would, when he replies, give a clear statement about those matters so that we know exactly what we are doing.
What does the bill apply to? We know from the Scottish Parliament information centre briefing that the independence of the planning system and inquiries into blood-borne infections from transfusions are the sorts of issues that might be challenged on human rights grounds. The issues are far wider than slopping out and apply not only to prisoners who, although they may have little public support, are entitled to their human rights. They cover all Scottish Government ministries and, I assume, agencies of various kinds.
The time bar is intended to provide a level playing field throughout the UK and, as I understand it, will be replaced by comprehensive UK legislation when a legislative opportunity offers itself. Will the minister confirm whether the wording is identical throughout the UK?
A more significant question is whether the extension to the one-year time limit is right as phrased. There is a difference between the wording of section 19A of the Prescription Limitation (Scotland) Act 1973, under which the judges have discretion over extending a time bar, and the provision in the bill, which perhaps supports the idea that they have discretion only over the length of the extension rather than over whether there should be an extension in the first place.
What of the date of knowledge and the date at which the time bar starts? Is the time bar one year after the start of the breach of rights, as the Scottish Government apparently argued in the Somerville case or, as is more usual, after the end of the breach of rights—in other words, when it ceases? As Patrick Harvie pointed out and the Law Society's briefing stresses, there is no reference in the bill to the date of knowledge as there is in other prescriptive limitations. Are the bill's provisions tight enough to do what we want to do on the slopping out cases while not restricting too narrowly what might arise in other cases? In a slightly different context, asbestosis provided us with time-bar issues more recently.
The Liberal Democrats will support the bill, as I said, but it is appropriate that the Government respond in some detail to the technical questions that I have asked so that we know that we are addressing the matter in the right way and dealing properly with the application of the European convention on human rights, which Liberal Democrats support and which gives people across the board—some of whom we like and some of whom we do not like so much—rights that they are entitled to exercise against the Scottish ministers in appropriate conditions. Has the cabinet secretary got the detail right?
I want to examine a number of issues in the bill, the first of which is, as Robert Brown has just highlighted, the time bar. I am grateful to Patrick Harvie for emphasising the Law Society of Scotland's point that there is a difference between the usual time bar for damages and injury claims and the one-year time bar in human rights legislation. We simply need to get our minds around that difference, which, I should add, is recognised throughout Europe. Of course, the question whether that is right is an interesting one, but perhaps not to be debated today.
However, I reiterate the question that Robert Brown posed: if a person is subject to certain conditions day after day for a year and, six months later, brings a claim under human rights legislation, can they claim for the whole year or only the last six months? That might seem like a legal technicality, but it is a significant issue, given that prison is all about serving time. I would be grateful if I received an answer to that question and was told the authority for it.
As I reflect on how we have reached this position, I cannot help but notice that even though the decision on the Somerville case was not substantive—the House of Lords was split on it—it has nevertheless produced a significant change in the law. Indeed, what comes to mind is the Donoghue v Stevenson case a couple of generations ago: although the House of Lords was split on the matter and was never able to reach a substantive decision on the mythical snail, the decision changed consumer law out of all recognition. That highlights the interesting way in which our law can sometimes proceed.
Does the member think that the decision of the House of Lords on Donoghue v Stevenson was a good one? After all, it sometimes makes good decisions, even though that is arguable in this case.
I am not sure that it is worth commenting on whether the decision was good, given that everyone involved is now dead and buried. We certainly have reason to be very grateful for the way in which it changed the law, although it is not obvious to me whether the change had to happen then or would have come about later. The point is that, sometimes, changes in our law are precipitated by the most ridiculous things. That is the way it goes.
Clearly, we need to pass the bill. I entirely respect the point that people's human rights need to be looked after—they are, after all, our human rights as individuals—but I do not think that there is any serious desire among the public to pay significant sums of money to prisoners. The best way not to have a problem in prison is not to be put there in the first place. That is what I intend to do and I am sure that everyone else will be well advised to do the same.
Although the crux of the bill is to ensure that the one-year time bar applies to human rights claims brought under the Scotland Act 1998, and although—notwithstanding issues about chemical sanitation—slopping out has become a thing of the past, I will for the record state my objections to the practice, as it forms an important backdrop to the bill. The situation that we are trying to rectify has arisen not only as a result of the House of Lords judgment but because of the time it has taken to end slopping out.
Anyone who has ever visited a prison and has had to interact with prisoners in cells with buckets of human waste sitting in the corner will know that the practice of slopping out adds absolutely nothing to the rehabilitation or punishment of offenders. The fact that it took so long to end slopping out was detrimental not only to our justice system but to public confidence in the system, as it created a situation in which people could make claims under human rights legislation.
The SPS's original target was to end slopping out by 1999, but a review in 2002 of the prison estate and plans to build two new prisons pushed the date back to 2008 at the earliest. In 2004, the Napier case established that slopping out was indeed a breach of human rights. In 21st century Scotland, should it really have taken human rights legislation to end a Victorian practice? In that respect, we—and I mean that collectively—made a rod for our own backs to the detriment of taxpayers. The reticence of and feet dragging by politicians and the SPS showed what happens when we frame justice debates in terms of hard or soft measures instead of focusing on what is proportionate, what is right, what is just and what actually works. I hope that we can all learn this salutary lesson for future debates on the criminal justice system.
I have no doubt that, in overturning the Court of Session judgment on the Somerville case, the law lords were very erudite in the legal points on which they based their decision. What I did not understand was Jack Straw's reticence and the view that he expressed in December 2008 that he was not persuaded of the case for changing the law. As the Cabinet Secretary for Justice has made clear, it was wholly unjust and unacceptable for the Scottish ministers to be the only public authority in Scotland—and, indeed, in almost the whole of the UK—to be exposed to claims for damages under human rights legislation outwith the one-year time bar.
I am glad that the situation has been resolved and that, as a result of the bill, savings will be made to the public purse. Many people were alarmed to hear that the SPS had to set aside £67 million to deal with just over 1,200 outstanding cases and that it expected to deal with 200 new cases a month. I look forward to hearing how the cabinet secretary plans to put the savings to good use. For the record, I hope that some consideration is given to making extra funding available for community sentencing. Although I have never subscribed to the view that money alone can solve all the ills and difficulties faced by criminal justice social work departments and those who are tasked with supervising offenders, I think that, in introducing enhanced community payback orders and ending unconditional automatic early release, we have an opportunity to invest further in innovative and imaginative practices that will enhance public confidence in the criminal justice system.
I welcome this morning's debate. It has taken considerable time to reach this point, but it is my hope that if—as I fully expect—the bill is passed later today, the Scottish prison system will finally begin to move on from the slopping out row that has caused so much controversy in recent years.
I know that the Law Society of Scotland, among others, has expressed concern about the lack of public consultation on the bill, given its constitutional significance and the fact that its outcome will benefit the Scottish Government, and I note those concerns. However, given the nature of emergency legislation and the bill's purpose in bringing Scottish human rights law in line with that of the rest of the United Kingdom as a precursor to the Westminster Government introducing primary legislation at a future date, I am satisfied that the Government has thoroughly considered all the options and plans to do the right thing in resolving the legal anomaly. Surely it is not desirable to continue to allow claims that are brought against the Scottish Government under the Scotland Act 1998 to be subject to a different time bar to those that are pursued under the Human Rights Act 1998. The cabinet secretary gave a very full response to Patrick Harvie's question on that point.
As Bill Aitken and Richard Baker have pointed out, there has been some controversy over changing the effective date of the new time bar from 31 July to 2 November. The fact is that whenever one gets two lawyers in a room, it is always extremely difficult to get them to agree, and that seems to have been the case this time.
The crux of the matter, however, must be finding the correct balance between the rights of those who wish to make a claim under the Scotland Act 1998 and the Government's desire to make savings and allocate them effectively. As other members have said, if the Government is going to save substantial numbers of millions of pounds, surely it would be much better, in the current economic climate, to spend that money on schools, hospitals and other things that benefit us all.
Another factor that several members have remarked on is the issue of competence, and specifically the difficulty of an increased possibility of a legal challenge to a bill that the Presiding Officer indicated—because of the parliamentary lawyers—was outwith the Parliament's competence. I therefore welcome the fact that the parliamentary authorities and the Government have managed to reach a compromise position. By November, if someone has had more than a year to make a claim—and, in some cases, more than two years, since the Somerville ruling in late October 2007—and has not done so, they will have had a reasonable amount of time. The fact that a time bar has been drawn now is surely justifiable.
As noted in the policy memorandum, the European Court of Human Rights fully accepts that the proportionate limitation periods imposed in pursuance of a legitimate human rights claim do not breach those rights. In adopting a compromise position, the bill will ensure that the letter and spirit of that statement are adhered to. I therefore fully support the aims of the bill, and welcome the fact that the legal loophole is finally being closed.
I will largely adopt the arguments that I previously canvassed on the subject. It is perhaps important to underline that no one disputes the fact that Lord Bonomy's decision in the original Napier case was correct. Clearly, slopping out is not acceptable, and Lord Bonomy was correct, in the terms of the European legislation, to find as he did. There is no point in raking through the history of the matter and speculating about what should then have happened, but, as Angela Constance suggests, action should have been taken much earlier.
Ms Constance commented on the use to which the £50 million might be put, but that is not a year-on-year windfall: once the £50 million has been spent, there will not be any more. In contrast, our considerations under the Criminal Justice and Licensing (Scotland) Bill are on-going. I flag up a danger sign that if we think that the £50 million will help us to cope with the increased expenditure in respect of alternatives to custody, we are wrong.
I have heard nothing this morning that dissuades me from my original proposition that the bill should proceed to stage 2.
The debate has shown us that members are united in one respect: in an ideal world, we would not want prisoners to benefit from compensation payments. As far as I am concerned, prison should be seen as punishment, not as an opportunity for compensation payments. As Richard Baker said—other members have referred to this—the issue is complex, and we have faced it for many years. Legal minds have been challenged on the rights and wrongs of the issue but, as others have said, we are now required to face up to the Somerville judgment in such a way as to bring us into line with the rest of the United Kingdom.
Like Richard Baker, I am pleased that we can now introduce the one-year time bar, following constructive dialogue between our Westminster colleagues and the Scottish Government. On Angela Constance's point, according to all the reports from ministers, that dialogue has been helpful and has allowed us to take matters forward.
I appreciate that Conservative members want to highlight the issues that may have exposed us to the claims in the first place. The Government press release refers to the prison estate that the Government inherited. It is important to recognise the work that was carried out by the previous Scottish Executive, under the leadership of Jim Wallace and Cathy Jamieson, to modernise the prison estate. In 2005, the previous Executive announced an investment in HM Prison Edinburgh of £16 million. That included a new prison house block and a health education centre, which enabled slopping out in Edinburgh to end. At HMP Glenochil, a £28 million investment enabled the construction of a new prison house block and a health centre. That investment also allowed us to move forward. Under the previous Executive, an investment of more than £35 million in HMP Perth enabled the construction of a new prison house block, a health centre and an activity centre, which allowed the ending of slopping out in Perth.
I could go on, but the important point is that the previous Executive highlighted concerns about slopping out and took action to ensure that the number of cells in which slopping out was required reduced from more than 1,900 in 2001 to the figures that have been referred to today. It made a significant investment in the prison estate, at an unprecedented level.
Such investment in the prison estate does not fit with the populist agenda. Understandably, the vast majority of our constituents want money to be invested in schools, community facilities, health centres and so on, and politicians respond to that. The passage of the bill will lead to savings of an estimated £50 million, so perhaps we can meet the aspirations of our local communities in that respect. Given the cross-party co-operation that has been displayed in the chamber today, I hope that we can work with the Cabinet Secretary for Justice on how best those savings can be expended.
I hope that Paul Martin would agree that as well as serving the populist aspirations of constituents to which he refers, Parliament has a responsibility to serve their interests. In recognition that more brutal prisons make more brutal prisoners, perhaps the £50 million would be better spent within the prison estate than elsewhere.
I have already exhibited the unprecedented investment in the prison estate by the previous Scottish Executive. Although it is important that such investment takes place, we must recognise that the populist agenda does not necessarily involve investing in the prison estate. However, I appreciate Patrick Harvie's point—it is important that we have a modern prison estate. The Justice 1 Committee reviewed the prison estate in 2001, when I was a member. I refer Patrick Harvie to the Official Report, in which he will see that I emphasised that it is important to invest not just in the prison estate but in the rehabilitation of prisoners to prepare them for release.
The issue will not go away. The passage of the bill is crucial and should be taken seriously, because it will minimise the risk to the public purse in respect of future claims. I call on members to support the Convention Rights Proceedings (Amendment) (Scotland) Bill.
I am grateful to all members for the constructive way in which this morning's proceedings have been conducted. We have, of course, discussed the issues previously, so it is not surprising—but nonetheless it is welcome—that we have been able to make such rapid progress. Other members have set out the important issues behind the bill and the reasons why we need to take action quickly. I will do my best to respond to the important points that have rightly and properly been made.
At the outset, Robert Brown raised the issue of consultation. The cabinet secretary rightly responded by referring to the circumstances in which the emergency bill process is used. In fact, it has been used five times, for the Mental Health (Public Safety and Appeals) (Scotland) Bill in 1999, the Erskine Bridge Tolls Bill in 2001, the Criminal Procedure (Amendment) (Scotland) Bill in 2002, the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill in 2006 and the Budget (Scotland) (No 3) Bill in 2009. It is fair to canvass that for the sake of the record, and to provide a complete statement of the circumstances in which the procedure has been used.
Of course, the Somerville judgment has attracted a great deal of publicity. It became available in October 2007. Since then, it has been extremely well publicised, for obvious reasons, and has been a matter of great public concern for reasons that members have explained.
Robert Brown raised the issue of what opportunities there have been for consultation. Only in March were we able to proceed on the basis that we had the broad agreement of the UK Government that appropriate steps could be taken, and the Scottish Government gave ample notice of its intentions. Almost immediately after the judgment, in November 2007, we announced that we intended to seek the introduction of a one-year time bar. We then published a draft of the bill in March 2009. On 1 April, we announced the launch of the draft section 30 order. Finally, we advised a range of interests, including all serving prisoners, the Law Society of Scotland and the Faculty of Advocates, of the planned legislation. That was the narrative of events.
That is a helpful response. Nevertheless, does the minister accept that, although it was appropriate for the bill to proceed under the emergency procedure and although there is agreement on the general principles of the bill, it is important that we get the detail right and that, therefore, there might be scope for the Government to consider what might be done—when there is a little more time than was allowed by the Ruddle situation, which was urgent—to have wider involvement in the study of the detail of the bill? Could the bill be subject to an additional helpful process—maybe not a statutory process—through the committee system?
We are always ready to respond to the parliamentary authorities' view on whether the emergency procedures need to be reconsidered. If Parliament decides that the matter should be revisited, we will be wholly co-operative in undertaking that task.
It would be not unreasonable for me to point out the extensive information and additional advice that has been provided to MSPs—and, therefore, made public to all those who are interested in the matter—in the policy memorandum and explanatory notes, which, perhaps because of the short time that is available to us this morning, have not been mentioned in detail. For example, in paragraph 13 of the policy memorandum we explained the alternative approaches that we considered and which could have been adopted. We did that because we wanted to be open and transparent in setting out the various approaches that could have been adopted in addressing the time-bar issue that the Somerville case raised. No approach other than primary legislation was identified. In other words, the first conclusion that we reached was that it was necessary to change the law by primary legislation, not secondary legislation.
Three possible courses of action were identified. The first was to amend the general law on time bar in Scotland by imposing a one-year time limit for all cases brought before the Scottish courts. However, we all agree that scrapping the triennium would have been absurd. It would have meant that the bill that we passed recently on pleural plaques was a bit of a nonsense. It would also have been extremely unfair and inappropriate for us to do that. We are dealing with a tightly focused situation, not the generality of all personal injury cases. The second option was to amend section 100 of the Scotland Act 1998 to make it clear that there was no right to damages under that act, thus requiring all such claims to be brought under the Human Rights Act 1998. The third option was to amend section 100 of the Scotland Act 1998 to impose a one-year time bar on bringing convention rights claims under that act. It was considered that options (a) and (b) would be disproportionate and that, therefore, option (c) would be the most suitable.
It is important to point out that the Government's officials devoted a great deal of time and effort to addressing matters in thorough detail, describing all the options fully and explaining why we decided to proceed with option (c) in the documents that were submitted with the draft bill—which itself has been available for a considerable time.
Robert Brown asked whether the time bar will start to run one year from the start of the breach. The issue was considered but not determined in the Somerville judgment by the House of Lords. The lords who considered the matter took the view that the one-year period would run from the end of the breach. Ultimately, however, it is a matter for the courts to determine. Members will have noticed that proposed new section 100(3B) of the Scotland Act 1998 states:
"Proceedings to which this subsection applies must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place".
It will be for the courts to determine the interpretation of that. That said, my understanding is that the date on which slopping out ceased was some considerable time ago, so I suspect that whether it happened four years ago or four and a half years ago will not be a practical question.
As the cabinet secretary has said, the time limit will apply from 2 November, so not only has there been the notice that I have described and incessant publicity on the issue since October 2007, and not only has every serving prisoner received notice of the matter, but there will be an additional period between 31 July and 2 November—effectively, August, September and October—for claims to be made. These proceedings are available to everyone in Scotland—including all solicitors in Scotland who are active in the field—to ensure that any client who wants to make a claim can make that claim before the cut-off date.
I am sorry to intrude again, but the issue applies more widely than just to slopping out cases, as we know from other discussions. It is, therefore, important that we know the Government's policy intent in using the phraseology that it has used in relation to the start and end of the claims period. It is a matter for determination by the courts, but it is also the responsibility of the Government to make clear what it intends to happen.
We intend to bring the position in Scotland into line with the position that has existed in the rest of the UK since the Human Rights Act 1998 was passed. However, the precise interpretation is rightly entirely a matter for the courts.
I hope that I have time to answer all the other perfectly legitimate questions that Robert Brown has raised, of which I have a list.
Proposed new section 100(3B)(b) of the Scotland Act 1998, which I had not got round to quoting, also gives the courts discretion to set the time bar at
"such longer period as the court or tribunal considers equitable having regard to all the circumstances".
In other words, not only are we bringing the law into line with the rest of the UK in respect of the one-year time bar, we are exactly replicating the UK provision on the circumstances in which a court has discretion to disapply that one-year time limit.
Robert Brown asked why we did not follow the wording in the Prescription and Limitation (Scotland) Act 1973, which I am sure he and I spent many a happy hour studying in our former lives. It is because the bill's purpose is to bring human rights claims in Scotland into line with those that are brought under the Human Rights Act 1998 that the bill follows the model of section 7(5)(b) of the Human Rights Act 1998 rather than that of section 19A of the Prescription and Limitation (Scotland) Act 1973.
The substantive point—to get away from quoting sections of acts in a rather narrow legal debate—is that we are seeking to bring the law in Scotland entirely into line with the law in the rest of the UK, which is perhaps what many people thought was the law in Scotland until the Somerville judgment came along.
Robert Brown also, rightly, asked to whom and what the bill will apply. It is clear that the bill will apply to the Scottish ministers and any member of the Scottish Executive, including Scottish Government agencies such as the Scottish Prison Service. Other public bodies that are not caught within the definition in the bill are already caught by the Human Rights Act 1998. The bill will therefore ensure that a consistent time bar applies to all actions that are brought against public authorities in Scotland. That explains the methodology and the terminology that have been used in the bill.
Some members asked about the likely number of claims and whether the delay until 2 November 2009 will lead to increased costs. The later date will allow those with potential claims an additional three months within which to bring a claim, so it could lead to an increased number of cases before the time limit comes into effect.
Presiding Officer, I am not quite sure how much longer I have, but I will soldier on.
The minister should not feel compelled to continue to speak if he does not wish to do so.
I just want to ensure that I answer the main questions that members have asked. If any member feels that I have not answered their question, I would be happy to let them intervene.
I thought that I had cowed everyone into submission, but apparently that is not the case.
Should not Mr Brown and others who are concerned that prisoners and former prisoners might lack the appropriate knowledge to be aware that they have the potential to make a claim take some comfort from the fact that certain members of the legal profession—acting, no doubt, in accordance with philanthropic principles—have been actively canvassing such people to ensure that they are aware of the legal remedy that is available to them?
I am certainly aware of the argument that Mr Aitken has made.
In conclusion, the need for action has been agreed on all sides, almost from the moment of the Somerville judgment. The bill is a good example of the rapid change that the Parliament can deliver when we work together. In that spirit of consensus, I am grateful to everyone who has taken part in the debate. It has been a very constructive morning.
The question is, that motion S3M-4396, in the name of Kenny MacAskill, on the general principles of the Convention Rights Proceedings (Amendment) (Scotland) Bill, be agreed to.
Motion agreed to,
That the Parliament agrees to the general principles of the Convention Rights Proceedings (Amendment) (Scotland) Bill.
The bill will now proceed to stage 2. Members have until 2 pm today to lodge amendments with the legislation team clerks. The Committee of the Whole Parliament will meet at 2.55 pm to consider the bill at stage 2.
On a point of order, Presiding Officer. Could you take a bit more time to explain to us the full procedure for the bill at stage 1, stage 2 and stage 3? I think that we all need to know a bit more detail about when votes may occur. In the circumstances, what will you do to help Parliament to understand exactly what is required of it?
Under the circumstances, that is a very helpful point, Mr Crawford. However, I simply refer members to previous Official Reports on such proceedings, which are not unknown in the history of this Parliament. Indeed, the first act ever passed by the Parliament in 1999—as members will no doubt recall—was an exemplar of such proceedings.