Criminal Cases (Punishment and Review) (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Criminal Cases (Punishment and Review) (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate.
Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.
Members should now refer to the marshalled list of amendments.
Section 3—Exception to non-disclosure rule
Amendment 1, in the name of the Cabinet Secretary for Justice, is grouped with amendments 2, 14 and 15.
Amendment 1 is a technical amendment that deletes from the bill new section 194M(3) of the Criminal Procedure (Scotland) Act 1995. That provision was originally included to make clear that the Scottish Criminal Cases Review Commission’s power to decide to disclose information under new section 194M(1) of the 1995 act was subject to other provisions within the overall framework. However, new section 194M(3) is not essential to the operation of the framework, so amendment 1 deletes it to simplify the provisions in new section 194M. The result is that the natural context of the set of provisions in part 2 of the bill will mean that new section 194M(1) is qualified to the extent that is provided for in the other provisions, but without that having to be stated expressly.
Amendments 14 and 15 are consequential amendments that delete references to new section 194M(3) at new section 194Q(1) and (3)(b).
Amendment 2 is intended to address concerns that we have received from the United Kingdom Government that new section 194M could be read in such a way that it sought to override reserved legislation that would otherwise limit the disclosure of information. Notwithstanding that that has never been our intention, we have considered carefully the UK Government’s comments. We have always been clear that the Scottish Government is committed to being as open and transparent as possible on the al-Megrahi case within the devolved competence of the Scottish Parliament.
Furthermore, we are satisfied that, as I said to the Justice Committee when the issue was debated at stage 2, the provision at new section 194M(4), which was inserted at stage 2, does not affect any restriction or limitation on disclosure that is imposed by reserved legislation.
As members will be well aware, the Scottish Parliament cannot legislate on matters that are outside its competence. All acts of the Scottish Parliament require to be read within the context of section 101 of the Scotland Act 1998, which provides that acts of the Scottish Parliament are to be read in a way that is consistent with the devolved competence of the Parliament.
However, following stage 2, we were asked by the UK Government to recast the provision, for two reasons; first, to make explicit that any limitation on disclosure imposed by an enactment is not overridden by new section 194M(1) of the 1995 act; and, secondly, to remove the reference to “any obligation of secrecy” that was contained in new section 194M(4) of the 1995 act.
In lodging amendment 2, we have kept our minds entirely focused on ensuring that our policy aims are met. We are satisfied that our recast provision continues to meet our policy aims, as it is sufficient to address the concern that was expressed by the Scottish Criminal Cases Review Commission in its evidence to the committee that the bill as introduced did not provide the necessary authority for it to disclose information that is covered by legal professional privilege or by any common-law duty of confidentiality.
If amendment 2 is agreed to, I can assure members that the commission will still have the necessary authority to decide whether it is appropriate to disclose information, even if that information is covered by legal professional privilege or by any common-law duty of confidentiality.
On that basis, I move amendment 1.
As no other member has requested to speak—[Interruption.] Sorry. I call Lewis Macdonald—a late request.
I admit that it was a late bid to speak, Presiding Officer.
I simply want to reflect on the cabinet secretary’s comments that his inquiry in relation to this matter was raised following representations from the UK Government. Can he tell us whether, having recast the provision, he has had further discussion with the UK Government?
I had discussions with the secretary of state and the Lord Advocate had discussions with the Advocate General, from whom we received a communication this morning. I believe that there has been full and frank discussion and that the fears and alarms of the commission have been addressed. We think that we have struck the correct balance between doing what we have always said that we will do with regard to being as open and transparent as possible on the al-Megrahi case and obliging foreign Governments and the UK Government by acknowledging their requests in a way that has assured them that they feel that their rights are protected.
Amendment 1 agreed to.
Amendment 2 moved—[Kenny MacAskill]—and agreed to.
Amendment 3, in the name of the cabinet secretary, is grouped with amendment 7.
Amendment 3 has been lodged to address concerns that have been expressed by the UK Government about the way in which the bill treats information that it has provided to the commission.
The UK Government has expressed concern that it does not have final control over the release of information that is held by the commission but which it provided.
We have explained that the bill enables any person who has provided information that is held by the commission to take legal action in their favour in respect of potential disclosure of information. That includes the UK Government. We had considered that that was sufficient to meet the balancing policy aims of relaxing the restrictions on the commission to facilitate the publication of information while protecting the interests of affected persons and interested persons in respect of the potential disclosure of their information. However, the UK Government has indicated that it is not satisfied with those protections.
As we have consistently made clear, the Scottish Government’s policy is to be as open and transparent as possible about all aspects of the Lockerbie atrocity. Taking into account the fact that the commission’s statement of reasons for referring al-Megrahi’s case to the appeal court has been published, and reflecting that that was the main reason why part 2 of the bill was brought forward, we accept the need to ensure that the provisions contained in the bill do not jeopardise future co-operation between the UK Government and Scottish police, the Crown Office and the commission.
Concern has been expressed that future co-operation between the UK Government and Scottish authorities may be put at risk if no change was made to the bill in this area. In view of that, we lodged amendment 3, which provides that consent of the UK Government is required for the disclosure of any information that
“is held by the Commission”
and which
“has been supplied by the UK Government”.
That puts the UK Government on the same footing as foreign authorities, whose consent the commission must seek before disclosing information that they have supplied.
We accept that amendment 3 represents a very fine balance between being as open and transparent as possible and ensuring that there is no adverse impact on future co-operation in investigating serious cross-border crime.
Avoiding the risk of a lack of future co-operation between other countries and Scotland in criminal investigations led us to ensure that the bill provides that foreign authorities retain control over information that they have supplied. Such considerations also apply within the UK, which ultimately led us, after much reflection, to include a consent mechanism for the UK Government.
Amendment 7 is a minor consequential amendment following on from amendment 3. It makes it clear that there is no unnecessary double consent mechanism whereby consent from abroad is also needed in cases in which the UK Government’s consent is required.
I move amendment 3.
Amendment 3 agreed to.
Amendment 4, in the name of the cabinet secretary, is grouped with amendments 5, 6 and 8 to 13.
Amendments 4 to 6 and 8 to 13 are minor technical amendments that are intended to clarify and simplify the provisions in the bill that require the commission to obtain the consent of foreign authorities before disclosing information that has at any time been supplied by them. The amendments do not seek to change the policy intent of the provisions, with consent still being required before the commission can consider disclosing information that it holds that has been provided by a foreign authority.
Overall, the amendments seek to remove the distinction between information that has been obtained from foreign authorities through international assistance arrangements through the Lord Advocate and information that has been obtained on the commission’s own application. They instead make it clear that, quite simply, if the commission holds information that was supplied by a foreign authority, the commission must obtain that authority’s consent before disclosing that information.
I move amendment 4.
Amendment 4 agreed to.
Amendments 5 to 15 moved—[Kenny MacAskill]—and agreed to.
That ends consideration of amendments.