Meeting of the Parliament

Meeting date: Wednesday, October 27, 2010

Official Report 933KB pdf

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Committee of the Whole Parliament

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Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill: Stage 2

The next item of business is stage 2 proceedings on the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill, which will be considered in a Committee of the Whole Parliament. The occupant of the chair is the convener.

In dealing with amendments, members should have the marshalled list and the groupings that I have agreed. The division bell will sound and proceedings will be suspended for five minutes for the first division this afternoon—I think that it is still 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. All other divisions will be 30 seconds.

Section 1—Right of suspects to have access to a solicitor

Amendment 1, in the name of Robert Brown, is grouped with amendments 5 and 6.

I am conscious that there is a long list of amendments to this difficult emergency legislation; that indicates the problems with trying to pass such legislation so quickly.

The first grouping is pretty minor, and I will explain briefly what it is about. It relates to line 12 on page 2 of the bill, under section 1, which states with regard to the right of the suspect to have access to a solicitor that

“The suspect has the right to have intimation sent to a solicitor”

in certain circumstances. I am quibbling over whether “sent” is the right word in that context. Such things are normally done by telephone, and “made” is perhaps a better word. I would appreciate a response from the Cabinet Secretary for Justice on that point—to which amendments 5 and 6 also relate—with regard to how he anticipates that the intimation would be made in such situations. Would it normally be made by telephone, or does he have in mind—as the wording suggests—a more elaborate procedure in that regard?

I move amendment 1.

I welcome the spirit in which Robert Brown has lodged amendment 1. However, it is a technical amendment that we believe would achieve nothing in practice, and it might cause confusion. The term “sent” is consistent with the wording in sections 14, 15 and 17 of the Criminal Procedure (Scotland) Act 1995, and to use a different term in the current bill would be likely to cause confusion.

Mr Brown himself will have been—if I can put it in inverted commas—“sent” intimation from his clients in custody. The process is well established; the bill simply uses the legal term for what takes place in a variety of ways. It is custom and practice, and we do not seek to change that in any way. A change of the nomenclature would disturb a pattern that is already settled in the 1995 act.

Given the cabinet secretary’s response, I seek to withdraw amendment 1.

Amendment 1, by agreement, withdrawn.

Amendment 2, in the name of Robert Brown, is grouped with amendment 7.

Amendment 2 is a paving amendment for amendment 7, which is the substantial amendment that refers to lines one to five on page 3, under section 1. Again, it relates to the right of suspects to have access to a solicitor.

It is worth reading out the phrasing in subsection (8) of proposed new section 15A of the 1995 act. It states:

“A constable may delay the suspect’s exercise of the right under subsection (3)”

—that is, the right to have a solicitor present—

“so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor.”

If ever I saw a clause that gave a right with one hand and took it away with the other, that is it. I question whether the Government has got that particular matter right.

I refer members to the decision in the Cadder case, which went into the matter in some detail and made clear that the right of a suspect to the presence of a solicitor was an absolute right. The right was certainly subject to the procedures that surround it in the individual jurisdiction, but it was not intended that there should be a systematic exception to it. Lord Hope made all sorts of observations in that regard. He made it clear that the grand chamber of the European Court of Human Rights

“was determined to tighten up the approach that must be taken to protect a detainee against duress or pressure of any kind that might lead him to incriminate himself.”

He also made it clear that, although there would be an interval of time before the arrival of the solicitor, and arrangements would be made for that,

“there is no hint anywhere in its judgment that”

the European court

“had in mind that the question ... will depend on the arrangements the particular jurisdiction has made”.

He said that it does not permit a “systematic departure” from the requirement. That was his major objection and difficulty with the decision in Her Majesty’s Advocate v McLean.

I suggest to the Parliament and particularly to the minister that the provision as it is worded at present goes significantly beyond the Cadder decision, establishes a systematic exception to the right, and is therefore questionably compliant with the European convention on human rights. More to the point, it seems to me that any policeman worthy of his salt could readily justify an extension of the time for detention just by reference to the needs of the investigation of the case. The provision is not specific, adds nothing to the substance, gives no criteria of real meaning, and is exactly the sort of thing that requires further detailed examination before we go in that direction. Against that background, I strongly suggest to the Parliament that subsection (8A) of proposed new section 15A of the 1995 act should be removed from the bill.

I move amendment 2.

I support amendment 2. I would like to hear from the justice secretary an explanation of subsection (8). The reason why we have the legislation is to give people the right to consult a solicitor. Subsection (8) states:

“A constable may delay the suspect’s exercise of the right ... so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders”.

Are those not the reasons why people are detained in the first place? In other words, what is the purpose of the provision? When a suspect is brought to a police station, it is for those reasons and no other, is it not?

I can understand why, at first glance, Robert Brown would have raised his eyebrows and seen some cause for concern, but the provision is necessary. It replicates a high test that is already contained in section 15 of the 1995 act, under which intimation can be delayed. It is nothing new because it is already in that act. I point out to Mr Rumbles that it will be exercised only in compelling circumstances but will be necessary in some serious cases. I assure him that it is ECHR compliant.

Will the minister take an intervention?

Not at the moment. Moreover, I do not know whether Mr Rumbles had read the judgment, but I doubt it—

There was no time.

It was published at 9.45 yesterday.

Oh, great.

Order.

Lord Rodger accepts at paragraph 95 that there may be compelling reasons to restrict the right, and he quotes a similar matter. Amendment 2 would take away the ability of the police to delay access to a solicitor. There are instances in which the interests of justice could be jeopardised, somebody could evade capture, some further witness could be threatened, or vital evidence could be interfered with. Such cases are very rare. They are few and far between, but the provision replicates what we already have in section 15 of the 1995 act to ensure that we protect the interests of justice. It is an extremely high test that has been used but sparingly by our police. That is why it is necessary.

Will the minister take an intervention?

By all means.

I thank the cabinet secretary for taking an intervention. I would accept everything that he says if he had said that in the bill that we are considering, but it does not say that in subsection (8). It states:

“A constable may”.

There is nothing about exceptional circumstances. Under the law that he is asking us to pass today, we are giving people the right to legal representation, but in subsection (8) we are taking it away again.

The Government just does not accept that. Indeed, I argue that Mr Rumbles is in danger of putting the police at a disadvantage and jeopardising victims, witnesses and, in the most serious cases, the opportunity to apprehend and detain people and ensure that they are brought to justice.

I find the cabinet secretary’s tone unfortunate. This problem has arisen because we are having to deal with legislation that he and his Government are seeking to force through today. Had we had the time to consider the issue properly, as we should have been able to, we would not be in this position.

As for Lord Rodger’s comments, which the cabinet secretary rightly referred to, I point out that he did not say that section 15 of the 1995 act should be continued. Indeed, there must be a question mark over that in light of the decision. Lord Rodger says that the type of circumstances in section 15

“could perhaps constitute compelling reasons”,

but we need to go a bit further and define what we are talking about here. The provision does not relate to exceptional circumstances, substantial reasons or any other criteria beyond the reason for having the person there in the first place, which is the investigation of the crime. Although I accept that in certain cases a delay might be possible, we should remember that, under the cabinet secretary’s proposals, it will be possible to extend the time for detention at a later time. This provision is designed to allow the police to question someone without the presence of the solicitor concerned, which is the significant issue that was raised in the Cadder case. Frankly, the cabinet secretary has not responded to that point properly and I certainly do not think that subsection (8) responds to it either.

Against that background, I am afraid to say that I will press amendment 2.

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

There will be a division. As it is the first division in the proceedings, we will have a five-minute suspension.

17:11 Meeting suspended.

17:16 On resuming—

Before we come to the vote, I inform members that, thanks to Bill Kidd, who has generously agreed to postpone it, the members’ business debate will not be held this evening.

Members: Aw!

I agree.

We move to the division on amendment 2.

For

Brown, Robert (Glasgow) (LD)

Finnie, Ross (West of Scotland) (LD)

Harper, Robin (Lothians) (Green)

Harvie, Patrick (Glasgow) (Green)

MacDonald, Margo (Lothians) (Ind)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

O’Donnell, Hugh (Central Scotland) (LD)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Stephen, Nicol (Aberdeen South) (LD)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Tolson, Jim (Dunfermline West) (LD)

White, Sandra (Glasgow) (SNP)

Against

Adam, Brian (Aberdeen North) (SNP)

Aitken, Bill (Glasgow) (Con)

Alexander, Ms Wendy (Paisley North) (Lab)

Allan, Alasdair (Western Isles) (SNP)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brown, Keith (Ochil) (SNP)

Brownlee, Derek (South of Scotland) (Con)

Butler, Bill (Glasgow Anniesland) (Lab)

Campbell, Aileen (South of Scotland) (SNP)

Carlaw, Jackson (West of Scotland) (Con)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Eadie, Helen (Dunfermline East) (Lab)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

FitzPatrick, Joe (Dundee West) (SNP)

Foulkes, George (Lothians) (Lab)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Goldie, Annabel (West of Scotland) (Con)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grahame, Christine (South of Scotland) (SNP)

Grant, Rhoda (Highlands and Islands) (Lab)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Henry, Hugh (Paisley South) (Lab)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Johnstone, Alex (North East Scotland) (Con)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Lamont, Johann (Glasgow Pollok) (Lab)

Lamont, John (Roxburgh and Berwickshire) (Con)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McGrigor, Jamie (Highlands and Islands) (Con)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McLetchie, David (Edinburgh Pentlands) (Con)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McMillan, Stuart (West of Scotland) (SNP)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Morgan, Alasdair (South of Scotland) (SNP)

Mulligan, Mary (Linlithgow) (Lab)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

Murray, Elaine (Dumfries) (Lab)

Neil, Alex (Central Scotland) (SNP)

Oldfather, Irene (Cunninghame South) (Lab)

Park, John (Mid Scotland and Fife) (Lab)

Paterson, Gil (West of Scotland) (SNP)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Somerville, Shirley-Anne (Lothians) (SNP)

Stevenson, Stewart (Banff and Buchan) (SNP)

Stewart, David (Highlands and Islands) (Lab)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

The result of the division is: For 18, Against 100, Abstentions 0.

Amendment 2 disagreed to.

Amendment 3, in the name of Robert Brown, is grouped with amendment 4. I draw members’ attention to the pre-emption information on the groupings paper.

Amendment 3 relates to what section 1 inserts in the 1995 act on the method of consultation. In that regard, I draw members’ attention to lines 26 to 28 on page 2 of the bill, which say that consultation between the solicitor and the client

“means consultation by such means as may be appropriate in the circumstances, and includes, for example, consultation by means of telephone.”

Order. I am sorry, but there is far too much background noise. Will members please respect the member who is on his feet?

I have lodged two alternative amendments, as the issue is difficult. I think that most of us would regard consultation with a solicitor as involving a private meeting with that solicitor in a room in a police station, or something of that sort. Conversation by telephone or perhaps by e-mail or carrier pigeon for all I know seems to me to be a slightly odd concept when we are talking about the protection of a suspect in custody. The provision refers to

“consultation ... as may be appropriate”.

Appropriate to whom? That is an issue. Who would decide what might be appropriate in the circumstances?

I propose that the provision is not necessary, as consultation with a solicitor is well understood and does not need to be defined in the bill. The only purpose behind the Government trying to define it in the bill is to narrow its scope. Alternatively, if the Government thinks that consultation has to be defined, it must be defined rather more narrowly than has been proposed. I accept that there could be a distance problem, for example, or exceptional circumstances in which there might have to be some other form of contact. Perhaps provision could be made for that, but that should not suborn the whole section. Therefore, amendment 4 suggests that the normal thing would be consultation in person at the police station or other place where the suspect is being detained,

“except where the suspect requests that alternative means be used”.

I do not know what those alternatives might be, but I can envisage that there might be something in that regard.

Amendment 3 would pre-empt amendment 4. Primarily—although subject to the cabinet secretary’s comments—I seek to delete subsection (5) of proposed new section 15A of the 1995 act. However, if there is merit in what I say and there are circumstances in which a meeting in person is not the only possibility, I am open to a slightly broader approach. I am interested in the cabinet secretary’s responses on that.

I move amendment 3.

Of course there is merit in what Robert Brown asks us to do, but the issue is covered by the existing proposals. The issue is about providing the right balance between ensuring that there is access to a solicitor and allowing the accused to make an informed choice on certain occasions as to whether a solicitor’s presence is required. There will be cases in which the accused will be reluctant to wait. As Mr Aitken said, the lawyer might have to come from Inverness or Fort William to Portree, but the accused might well decide that they do not want to wait that long and might say, “Can we just get on with it and get it over with?” However, he will have to have the opportunity to take advice. The solicitor might say, “Don’t be so daft—wait until I get there,” or they might say, “That’s fine—this is what I advise you to do and if you want to get on with it, feel free to do so.”

That is one example. There will be instances in which somebody is not sure whether they need advice. In some instances, they will not need advice, but they should at least have the opportunity to speak to a solicitor and be told what they think. The accused might be persuaded that they need advice or be satisfied that they do not.

There are other practical matters. For example, there could be force majeure. There could be a landslip on a road that means there is no access. Such things occasionally happen in Scotland. The time limit would be expiring and it might be that the matters could be dealt with by telephone. Equally, as I am sure all members know, we are looking to move towards the use of new technology, such as Skype and videoconferencing or whatever. We must take it into account that, in some instances, as well as a telephone call being offered, some other new form of technology might be available.

There is a legitimate question to be raised, but I hope that Mr Brown accepts that the issue is about allowing an informed choice for the accused, while ensuring that he has the opportunity to access a solicitor. If, because of the circumstances or by his own choice, he does not want to access a solicitor, the police can press on.

I want to clarify the issue of whose choice it is. The bill talks about

“consultation by such means as may be appropriate”,

but it does not say that that is the suspect’s choice. Rather, it indicates that it is the choice of the authorities in a general sense. We need clarity on that point.

The accused will have access to a solicitor, apart from in the situations that we have already discussed in relation to amendment 2. The police would ask the accused whether he wanted to speak to his agent or whoever. That is a matter of discussion between the suspect and the police. The police would not say that it is a phone call only. In some instances—if for example the suspect declined—the police would ask the accused whether they wanted to clarify anything and inform them that they could speak to a solicitor. The accused might just want to get on with it, but the police, for good reason—to minimise appeals—might say, “Actually, you should speak to the solicitor in the first place.” Some of the issue must be left to common sense and discussion, with the balance that matters can be appealed.

It is helpful to have clarification of the meaning of the provisions. I support what the cabinet secretary has said so far. Is it clear that it is a matter for the accused to determine what form access to a lawyer would take and that it is for the accused to determine whether a lawyer is present during the interview? Who makes that determination?

That has to be a matter of balance. I talked about force majeure. If a solicitor is on their way but there has been a landslip on the A-whatever-it-is and he cannot come, he can speak to the suspect on the phone. I do not think that it would be legitimate if justice were to be circumvented in that situation. As I said, if the process is not satisfactory, that will be borne in mind by the procurator fiscal when matters are reported and, ultimately, the issues will be clarified by the High Court. It cannot be an absolute mandatory choice for an accused to say, “I’m not doing anything other than having a solicitor here,” if, for example, there are good reasons why a solicitor cannot get there in time and some alternative method has been suggested.

That said, it is clear from where the Association of Chief Police Officers in Scotland is heading in its guidance that police will ask the accused how they want to deal with matters. There must be some flexibility and pragmatism to take into account a variety of eventualities. Those eventualities will be rare, but they might well arise.

I have listened to what the cabinet secretary has said and there is obviously a lot of content to it. However, frankly, I do not think that it deals with the point, as Pauline McNeill said. There is an important issue to do with where the rights of the matter lie that cannot be dealt with by ACPOS guidance. That is the substance of the issue, or so it seems to me.

In the circumstances, I will seek leave to withdraw amendment 3 and press amendment 4. There might be some advantage in defining “consultation”. I am not entirely certain that amendment 4 does the trick, but I am definitely unhappy with the current phraseology of the section. At least amendment 4 arrives at the point at which it is up to the suspect. The suspect does not have to have legal advice; he has the right to have legal advice or not, and nothing takes away his right to refuse legal advice if he wants to do that.

I am certain that the police will make arrangements for telephone conversations when that is appropriate. However, the central point is that the normal situation will still be a face-to-face, private meeting in a cell or a meeting room of some sort at the police station. That must be reflected in the statute and, against that background, I will press amendment 4.

Amendment 3, by agreement, withdrawn.

Amendment 4 moved—[Robert Brown].

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Robert (Glasgow) (LD)

Finnie, Ross (West of Scotland) (LD)

Harper, Robin (Lothians) (Green)

Harvie, Patrick (Glasgow) (Green)

MacDonald, Margo (Lothians) (Ind)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

O’Donnell, Hugh (Central Scotland) (LD)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Stephen, Nicol (Aberdeen South) (LD)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Tolson, Jim (Dunfermline West) (LD)

Against

Adam, Brian (Aberdeen North) (SNP)

Aitken, Bill (Glasgow) (Con)

Alexander, Ms Wendy (Paisley North) (Lab)

Allan, Alasdair (Western Isles) (SNP)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brown, Keith (Ochil) (SNP)

Brownlee, Derek (South of Scotland) (Con)

Butler, Bill (Glasgow Anniesland) (Lab)

Campbell, Aileen (South of Scotland) (SNP)

Carlaw, Jackson (West of Scotland) (Con)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Eadie, Helen (Dunfermline East) (Lab)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

FitzPatrick, Joe (Dundee West) (SNP)

Foulkes, George (Lothians) (Lab)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Goldie, Annabel (West of Scotland) (Con)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grahame, Christine (South of Scotland) (SNP)

Grant, Rhoda (Highlands and Islands) (Lab)

Gray, Iain (East Lothian) (Lab)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Henry, Hugh (Paisley South) (Lab)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Johnstone, Alex (North East Scotland) (Con)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Kidd, Bill (Glasgow) (SNP)

Lamont, Johann (Glasgow Pollok) (Lab)

Lamont, John (Roxburgh and Berwickshire) (Con)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McGrigor, Jamie (Highlands and Islands) (Con)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McLetchie, David (Edinburgh Pentlands) (Con)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McMillan, Stuart (West of Scotland) (SNP)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Morgan, Alasdair (South of Scotland) (SNP)

Mulligan, Mary (Linlithgow) (Lab)

Murray, Elaine (Dumfries) (Lab)

Neil, Alex (Central Scotland) (SNP)

Oldfather, Irene (Cunninghame South) (Lab)

Park, John (Mid Scotland and Fife) (Lab)

Paterson, Gil (West of Scotland) (SNP)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Somerville, Shirley-Anne (Lothians) (SNP)

Stevenson, Stewart (Banff and Buchan) (SNP)

Stewart, David (Highlands and Islands) (Lab)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

White, Sandra (Glasgow) (SNP)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

The result of the division is: For 18, Against 102, Abstentions 0.

Amendment 4 disagreed to.

Amendments 5 and 6 not moved.

Amendment 7 moved—[Robert Brown].

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Finnie, Ross (West of Scotland) (LD)

Harper, Robin (Lothians) (Green)

Harvie, Patrick (Glasgow) (Green)

MacDonald, Margo (Lothians) (Ind)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

O’Donnell, Hugh (Central Scotland) (LD)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Stephen, Nicol (Aberdeen South) (LD)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Tolson, Jim (Dunfermline West) (LD)

Against

Adam, Brian (Aberdeen North) (SNP)

Aitken, Bill (Glasgow) (Con)

Alexander, Ms Wendy (Paisley North) (Lab)

Allan, Alasdair (Western Isles) (SNP)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brown, Keith (Ochil) (SNP)

Brownlee, Derek (South of Scotland) (Con)

Butler, Bill (Glasgow Anniesland) (Lab)

Campbell, Aileen (South of Scotland) (SNP)

Carlaw, Jackson (West of Scotland) (Con)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Eadie, Helen (Dunfermline East) (Lab)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

FitzPatrick, Joe (Dundee West) (SNP)

Foulkes, George (Lothians) (Lab)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Goldie, Annabel (West of Scotland) (Con)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grahame, Christine (South of Scotland) (SNP)

Grant, Rhoda (Highlands and Islands) (Lab)

Gray, Iain (East Lothian) (Lab)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Henry, Hugh (Paisley South) (Lab)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Johnstone, Alex (North East Scotland) (Con)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Kidd, Bill (Glasgow) (SNP)

Lamont, Johann (Glasgow Pollok) (Lab)

Lamont, John (Roxburgh and Berwickshire) (Con)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McGrigor, Jamie (Highlands and Islands) (Con)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McLetchie, David (Edinburgh Pentlands) (Con)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McMillan, Stuart (West of Scotland) (SNP)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Morgan, Alasdair (South of Scotland) (SNP)

Mulligan, Mary (Linlithgow) (Lab)

Murray, Elaine (Dumfries) (Lab)

Neil, Alex (Central Scotland) (SNP)

Oldfather, Irene (Cunninghame South) (Lab)

Park, John (Mid Scotland and Fife) (Lab)

Paterson, Gil (West of Scotland) (SNP)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Somerville, Shirley-Anne (Lothians) (SNP)

Stevenson, Stewart (Banff and Buchan) (SNP)

Stewart, David (Highlands and Islands) (Lab)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

White, Sandra (Glasgow) (SNP)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

The result of the division is: For 17, Against 102, Abstentions 0.

Amendment 7 disagreed to.

Section 1 agreed to.

Section 2 agreed to.

Section 3—Extension of period of detention under section 14 of 1995 Act

Amendment 8, in the name of Robert Brown, is grouped with amendments 9 to 23 and amendment 28, as shown in the groupings. I should point out to members that the amendment that is shown between numbers 13 and 15 on the groupings paper should read “14” and not “4”. I think that that is a satisfactory explanation. I also call members’ attention to the pre-emption information on the groupings.

17:30  

Perhaps that shows the potential for deficiencies creeping into the bill by accident during this sort of procedure.

Section 3 is perhaps the most substantial part of the bill because it relates to arrangements for the extension of the six-hour period of detention under section 14 of the Criminal Procedure (Scotland) Act 1995. I have tried to subject the cabinet secretary’s proposals to a degree of critical, but I hope friendly, scrutiny.

Amendment 8 relates to the six-hour period of detention. The only reason why we should be considering the extension of the period today is the result of the Cadder case and any difficulties that there might be in securing the attendance of a solicitor at a police station to provide the support that is required. Any other agenda that might exist behind the scenes to extend periods of detention for other reasons should be dismissed from our minds during this debate.

Through subsection (4) of proposed new section 14ZA of the 1995 act, which amendment 8 would insert, I have tried to give the police—in this instance, it is the police who should make the decision—the authority in exceptional circumstances to extend the period of detention from six hours to 12 hours,

“if the officer is satisfied that the detained person wishes to exercise the right ... but has been unable to do so due to a difficulty in securing the attendance of a solicitor.”

That is straightforward enough. As with the principal act, we are talking about an officer of the rank of inspector or above.

There is also the situation with the period of detention going beyond 12 hours, which I am trying to tighten up significantly. I have two suggestions to make, one of which would pre-empt the other. Amendment 9 is my substantive amendment, through which I seek to suggest that there is no hurry on this matter. It is perfectly able to be examined at leisure by the Justice Committee.

Does Robert Brown accept that the regulations for which amendment 9 would provide would take at least two months—maybe a bit longer—to go through Parliament? For that time, the 12-hour period alone would be set. Is not there a danger that forensic evidence in the case of an accused rapist or paedophile would not necessarily be available within 12 hours and that therefore such an accused person could be released if amendment 9 were agreed to?

I suggest to Mr Thompson that he has not listened to what I said. I said that it was important to distinguish the reason for the emergency legislation today—the need to deal with Cadder—from more general arguments of the sort that he makes. There might well be a case for the argument that Mr Thompson makes in general terms, but if there is—we are talking about individuals’ civil liberties—it should be dealt with properly by legislation through this Parliament, not as a by-blow, and it should not be used as an excuse to take things forward in that way. Mr Thompson is approaching the matter in the wrong way altogether.

Would Robert Brown’s remarks apply equally if more than one person were being detained? I am thinking of a smaller police facility in which a number of people were being detained for 12 hours or more.

I take the point, but I am bound to say that the Scottish Government has been in power since 2007. If it thought that that was such a compelling issue—on the advice of the Lord Advocate, who engages with the Government from time to time on such matters—then I am at something of a loss to understand why we have not had legislation since then to deal with that particular point. Even the emergency arrangements that have been made by the Lord Advocate continue the six-hour provision—obviously she could do only that. They have operated reasonably satisfactorily over the summer. Things operated that way before the Cadder decision was made and would otherwise—but for the bill—have continued to operate after the decision was made. If there are arguments about the point that Margo MacDonald makes, they have to be examined properly by substantive legislation on a different basis.

The point that I was making on amendment 9 was that we could move forward to the 12-hour period if the Government wishes, but that, through the Justice Committee following the statutory instrument process, the amendment would ensure that the more substantial change from the 12-hour period to the 24-hour period would benefit from proper examination by the Parliament. The process would allow the committee to conduct that examination, to hear people’s views and to make a more considered and proper decision about what is required. That would be the best way of tackling the matter.

However, if amendment 9 does not find favour, my amendment 10 offers the Parliament the option that the extension of a detention period to 24 hours would be sanctioned by a sheriff and not by a police officer. That proposal is pretty important. In all sorts of situations, warrants are sought from sheriffs and other judicial officers when the police require to do searches or obtain information. To involve a sheriff is the obvious way to proceed. Apart from anything else, that would protect the police from allegations that funny things went on in the police office and that the inspector simply rubber-stamped the request to extend the time.

All the other amendments in the group are consequential, so I need not deal with them in detail.

I move amendment 8.

In the stage 1 debate, we asked whether applications to extend the detention time should be agreed by sheriffs rather than by police officers of the rank of inspector or above, which Robert Brown has just discussed. We welcome his raising the issue for debate.

We accept that, in England and Wales, senior police officers consider such applications. However, that will be a substantial change to our system, so we should consider the best checks and balances for us. We have sought to look further into the matter and we have met the Lord Advocate in doing so.

It is regrettable that we have no evidence beyond the ACPOS advice, but we cannot obtain such evidence because of the strictures that we are under. We have been told that securing permissions from sheriffs would involve practical difficulties in rural areas. On the parliamentary timescale, we cannot gainsay that claim, so—most regrettably—we will not support amendment 8. However, we will have to return to the matter when Parliament properly scrutinises legislation on the issues later. In other circumstances, we might well have supported Robert Brown’s amendment.

I am slightly at a loss. If we pass the emergency bill today, it will become a statute of the country on Friday, when it will receive royal assent. When will Parliament have a chance to return to the provisions? I presume that that would require a new bill from the next Government. To say that a future Parliament can consider the matter, if we have got it wrong, is the wrong way of operating. We need to get the bill right today, because it will be law on Friday.

Our not taking action today might have unintended consequences. However, Mr Smith is right: the issue needs to be the subject of new legislation—probably from a new Government after the next election. When such legislation is introduced, we will be able to debate the points fully. That is the right way to proceed.

We have sympathy with Robert Brown’s amendment 9, which would give the Justice Committee new opportunities to debate the matters on a shorter timescale. However, agreeing to it would mean removing the bill’s current provisions on extending detention times, and we are concerned about what would happen in the interim. The best way to proceed is for me to speak further with Robert Brown before stage 3 to consider whether there is any way to give effect to the proposed mechanism after the provisions in the bill are passed. I hope to have further dialogue with him on that before stage 3.

Robert Brown’s amendments are arguable and have some merits. They are based on his wish—which every one of us has, I am sure—for people to be detained in custody for the minimum possible period before being charged. I have no difficulty in going along with that. The problem is with the practicalities.

No difficulty should arise in 99.9 per cent of cases, because they occur in urban areas, where no problems are experienced in getting hold of solicitors. I have no doubt that figures will be produced in the fullness of time to show that the vast majority of people are charged and released or are kept in custody after consulting a solicitor.

I do not think that the problem should arise very often. The practicality element falls down in cases such as that on the Isle of Skye, which I cited earlier. Under Mr Brown’s amendment 9, it would be impossible to guarantee access to a solicitor within the period. If we were to agree to his consequential amendment 10, a sheriff would be involved in having to agree on the cause shown to extend the period. It is highly unlikely that that would be practicable. Sheriffs do not always live in rural areas. I assume that Mr Brown wants the sheriff to have the deponent—namely the custody officer—come before him to put him on oath. On the basis of what is said, the sheriff will either extend or refuse to extend the period. Practicality is not with Robert Brown in this instance. What he proposes is well meant, but it is simply not workable.

I understand the points that Richard Baker made. Yesterday, when we held the meeting subsequent to the announcement, I said that I would encourage discussion—indeed, ACPOS is also quite willing to discuss matters. There is legitimate reason to ensure that we get right the provisions. Equally, I know that Mr Baker has had discussions with the Lord Advocate, who is monitoring the matter. Again, she will be more than happy to co-operate. Finally, we give the assurance that Lord Carloway will review the matter.

The Government feels that it is necessary to resist amendments 8 to 10 and we support Bill Aitken’s comments in this respect. The six hours that Robert Brown proposes in amendment 8 are simply not enough to deal with serious cases. We have information from ACPOS on a variety of scenarios that have occurred since the introduction of the Lord Advocate’s guidelines. We have been told of instances, including of multiple accused or people being held in different geographic areas, and of solicitors who have turned up to see multiple accused and who have refused to deal with them collectively—which is understandable in many instances. Nonetheless, the six-hour time limit was threatened in all of those. Six hours is entirely inappropriate. The scales of justice have been tipped. The requirement is now for a solicitor to be present for the interview. A change to the period of detention therefore needs to be made and the period before review that we propose is shorter than that which applies in England and Wales. In many instances, the safeguards that we propose are similar to those in England and Wales; in some instances, they go beyond them.

I turn to amendment 9. As Richard Baker correctly flagged up, we do not believe that we can wait. The amendment would require us to wait for royal assent and to bring to the Parliament regulations under affirmative procedure. As Dave Thompson correctly pointed out, we could be approaching Christmas before we could do that and, in the interim, no one could be detained beyond the 12 hours. As I said, serious criminals could evade capture or jurisdiction. As Dave Thompson said, if someone was detained in Portree or Inverness and forensic or ballistic evidence was required, the 12 hours could be up by the time the information became available. That is unacceptable—

Will the cabinet secretary give way?

I need to make progress.

Safeguards are appropriate. As I said, Lord Carloway will review the matter. Delay is entirely unacceptable. We need the legislation and we need it now.

I am a bit concerned about the language that the cabinet secretary is using. We are passing criminal law and the cabinet secretary keeps referring to “criminals”. Surely someone who is detained in a police station is a suspect and not a criminal.

What we are trying to address is serious legislation of fundamental affect to the people of our country. The pedantry and nomenclature that Mr Rumbles is employing ill befits him.

I turn to amendment 10. The period of detention that we propose before review is shorter than that which applies in England and Wales, I remind Mr Brown and Mr Rumbles. The position that we suggest for Scotland, which ACPOS supports given the review that it has undertaken, are 12 and 24 hours. The 12 hours can be extended by an officer of at least inspector rank and only in serious cases of an indictable nature. The situation in England and Wales under the UK Government—the Liberal Democrats are part of that coalition Government—is a mandatory 24 hours that can be extended by an officer or someone of similar rank to 36 hours. A magistrate can extend the period to 72 hours, but a magistrate is not even on a par with a sheriff in Scotland.

Mr Aitken’s points on the difficulties in accessing sheriffs are correct. We require to work with the Lord Advocate who will work with the Parliament and the police to develop the guidelines. We need sheriffs to focus on what is their best use of judicial time. We also need to ensure that unnecessary matters do not interfere with the due process of law and we need to let the police get on with their investigations.

The bill strikes the correct balance. The scales of justice have been tipped by the Supreme Court’s decision in Cadder v HMA. We must ensure that the police are armed equally to the solicitors who are there to assist the accused. That is why I oppose Mr Brown’s amendments.

17:45

This has been an interesting and important debate on an issue that is at the core of the bill. The cabinet secretary is scratching about a bit if he is blaming the current coalition Government, which has been in power for only five months, for the legislative situation at Westminster. I am not sure what he expected us to do about the situation within that period, even if it became an issue.

Mike Rumbles was right to say that there is an issue of language that affects the approach that is taken. As I said in the stage 1 debate, the cabinet secretary has consulted people on the prosecution side: the Crown Office, the Lord Advocate and ACPOS, which has been brought into the debate. There is a balance to be struck when one is dealing with criminal legislation. Mike Rumbles was right to say that we are dealing with people who are suspects—people who are accused of crimes but who may or may not have committed them.

I am saying not that there should be no extension of the detention period but that, over the summer, since the Lord Advocate’s guidelines have been in place, we have had a bit of experience of one or two of the issues relating to timescales and so on that may be thrown up. That may justify extension of the detention period to 12 hours, for the sake of argument, but it does not necessarily follow from that that we must do so immediately, without the possibility of detailed consideration of the implications.

The cabinet secretary indicated that some information about possible problems is coming through from ACPOS. The Parliament has no knowledge of that, bar a throwaway paragraph—in fact, a subordinate clause—in the policy memorandum. We do not have the details and nor do we know the strength of the information. We do not know the extent of the problem or how often it occurs. The suggestion that, because there may be a problem on the Isle of Skye, we must change the legislation completely to deal with that, seems peculiar. Clearly, we must deal with the problem on the Isle of Skye, but the normal position ought to be one that is applicable and reasonable in the rest of Scotland. There ought to be further discussion of the issue, as we are talking about periods of six, 12 and 24 hours’ detention.

I accept the point that Bill Aitken made about sheriffs not living in rural areas, but we live in an era in which there are such things as e-mails and telephones and it is possible to transmit information to a distant point. Surely it is possible, in the exceptional circumstances that have been described, to deal with matters in a satisfactory way. I do not pretend to know the answer, but situations that are relatively exceptional should be dealt with as such.

The bill is a criminal statute that will allow the prosecution authorities—in particular, the police—to lock up people for longer than has hitherto been possible. There may be good cause for that, but it should not be done without careful consideration and examination. Amendment 9 offers the Parliament the opportunity to consider the issue with a degree of leisure after the detention period has been extended to 12 hours, if members are so minded.

We are dealing with a significant matter of civil liberties. The position should not be changed by way of a by-blow, and the bill should not take on board all of the other issues that members have raised. The Government could have dealt with those in other ways, if it had concerns about them. Due consideration should be given to the matter. Against that background, I will press the amendments in my name.

The question is, that amendment 8 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Robert (Glasgow) (LD)

Finnie, Ross (West of Scotland) (LD)

Harper, Robin (Lothians) (Green)

Harvie, Patrick (Glasgow) (Green)

MacDonald, Margo (Lothians) (Ind)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

O’Donnell, Hugh (Central Scotland) (LD)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Stephen, Nicol (Aberdeen South) (LD)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Tolson, Jim (Dunfermline West) (LD)

Against

Adam, Brian (Aberdeen North) (SNP)

Aitken, Bill (Glasgow) (Con)

Alexander, Ms Wendy (Paisley North) (Lab)

Allan, Alasdair (Western Isles) (SNP)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brown, Keith (Ochil) (SNP)

Brownlee, Derek (South of Scotland) (Con)

Butler, Bill (Glasgow Anniesland) (Lab)

Campbell, Aileen (South of Scotland) (SNP)

Carlaw, Jackson (West of Scotland) (Con)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Eadie, Helen (Dunfermline East) (Lab)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

FitzPatrick, Joe (Dundee West) (SNP)

Foulkes, George (Lothians) (Lab)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Goldie, Annabel (West of Scotland) (Con)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grahame, Christine (South of Scotland) (SNP)

Grant, Rhoda (Highlands and Islands) (Lab)

Gray, Iain (East Lothian) (Lab)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Henry, Hugh (Paisley South) (Lab)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Johnstone, Alex (North East Scotland) (Con)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Kidd, Bill (Glasgow) (SNP)

Lamont, Johann (Glasgow Pollok) (Lab)

Lamont, John (Roxburgh and Berwickshire) (Con)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McGrigor, Jamie (Highlands and Islands) (Con)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McLetchie, David (Edinburgh Pentlands) (Con)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McMillan, Stuart (West of Scotland) (SNP)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Morgan, Alasdair (South of Scotland) (SNP)

Mulligan, Mary (Linlithgow) (Lab)

Murray, Elaine (Dumfries) (Lab)

Neil, Alex (Central Scotland) (SNP)

Oldfather, Irene (Cunninghame South) (Lab)

Park, John (Mid Scotland and Fife) (Lab)

Paterson, Gil (West of Scotland) (SNP)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Somerville, Shirley-Anne (Lothians) (SNP)

Stevenson, Stewart (Banff and Buchan) (SNP)

Stewart, David (Highlands and Islands) (Lab)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

White, Sandra (Glasgow) (SNP)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

The result of the division is: For 18, Against 102, Abstentions 0.

Amendment 8 disagreed to.

If amendment 9, in the name of Robert Brown, is agreed to, amendments 10 to 23 will be pre-empted.

Amendment 9 moved—[Robert Brown].

The question is, that amendment 9 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Robert (Glasgow) (LD)

Finnie, Ross (West of Scotland) (LD)

Harper, Robin (Lothians) (Green)

Harvie, Patrick (Glasgow) (Green)

MacDonald, Margo (Lothians) (Ind)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

O’Donnell, Hugh (Central Scotland) (LD)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Stephen, Nicol (Aberdeen South) (LD)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Tolson, Jim (Dunfermline West) (LD)

Against

Adam, Brian (Aberdeen North) (SNP)

Aitken, Bill (Glasgow) (Con)

Alexander, Ms Wendy (Paisley North) (Lab)

Allan, Alasdair (Western Isles) (SNP)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brown, Keith (Ochil) (SNP)

Brownlee, Derek (South of Scotland) (Con)

Butler, Bill (Glasgow Anniesland) (Lab)

Campbell, Aileen (South of Scotland) (SNP)

Carlaw, Jackson (West of Scotland) (Con)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Eadie, Helen (Dunfermline East) (Lab)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

FitzPatrick, Joe (Dundee West) (SNP)

Foulkes, George (Lothians) (Lab)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Goldie, Annabel (West of Scotland) (Con)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grahame, Christine (South of Scotland) (SNP)

Grant, Rhoda (Highlands and Islands) (Lab)

Gray, Iain (East Lothian) (Lab)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Henry, Hugh (Paisley South) (Lab)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Johnstone, Alex (North East Scotland) (Con)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Kidd, Bill (Glasgow) (SNP)

Lamont, Johann (Glasgow Pollok) (Lab)

Lamont, John (Roxburgh and Berwickshire) (Con)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McGrigor, Jamie (Highlands and Islands) (Con)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McLetchie, David (Edinburgh Pentlands) (Con)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McMillan, Stuart (West of Scotland) (SNP)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Morgan, Alasdair (South of Scotland) (SNP)

Mulligan, Mary (Linlithgow) (Lab)

Murray, Elaine (Dumfries) (Lab)

Neil, Alex (Central Scotland) (SNP)

Park, John (Mid Scotland and Fife) (Lab)

Paterson, Gil (West of Scotland) (SNP)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Somerville, Shirley-Anne (Lothians) (SNP)

Stevenson, Stewart (Banff and Buchan) (SNP)

Stewart, David (Highlands and Islands) (Lab)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

White, Sandra (Glasgow) (SNP)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

The result of the division is: For 18, Against 101, Abstentions 0.

Amendment 9 disagreed to.

Amendment 10 moved—[Robert Brown].

The question is, that amendment 10 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Robert (Glasgow) (LD)

Finnie, Ross (West of Scotland) (LD)

Harper, Robin (Lothians) (Green)

Harvie, Patrick (Glasgow) (Green)

MacDonald, Margo (Lothians) (Ind)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

O’Donnell, Hugh (Central Scotland) (LD)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Stephen, Nicol (Aberdeen South) (LD)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Tolson, Jim (Dunfermline West) (LD)

Against

Adam, Brian (Aberdeen North) (SNP)

Aitken, Bill (Glasgow) (Con)

Allan, Alasdair (Western Isles) (SNP)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brown, Keith (Ochil) (SNP)

Brownlee, Derek (South of Scotland) (Con)

Campbell, Aileen (South of Scotland) (SNP)

Carlaw, Jackson (West of Scotland) (Con)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

FitzPatrick, Joe (Dundee West) (SNP)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Goldie, Annabel (West of Scotland) (Con)

Grahame, Christine (South of Scotland) (SNP)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Johnstone, Alex (North East Scotland) (Con)

Kidd, Bill (Glasgow) (SNP)

Lamont, John (Roxburgh and Berwickshire) (Con)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McGrigor, Jamie (Highlands and Islands) (Con)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McLetchie, David (Edinburgh Pentlands) (Con)

McMillan, Stuart (West of Scotland) (SNP)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Morgan, Alasdair (South of Scotland) (SNP)

Neil, Alex (Central Scotland) (SNP)

Paterson, Gil (West of Scotland) (SNP)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Somerville, Shirley-Anne (Lothians) (SNP)

Stevenson, Stewart (Banff and Buchan) (SNP)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

White, Sandra (Glasgow) (SNP)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

Abstentions

Alexander, Ms Wendy (Paisley North) (Lab)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Butler, Bill (Glasgow Anniesland) (Lab)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Eadie, Helen (Dunfermline East) (Lab)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

Foulkes, George (Lothians) (Lab)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grant, Rhoda (Highlands and Islands) (Lab)

Gray, Iain (East Lothian) (Lab)

Henry, Hugh (Paisley South) (Lab)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Lamont, Johann (Glasgow Pollok) (Lab)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Mulligan, Mary (Linlithgow) (Lab)

Murray, Elaine (Dumfries) (Lab)

Oldfather, Irene (Cunninghame South) (Lab)

Park, John (Mid Scotland and Fife) (Lab)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Stewart, David (Highlands and Islands) (Lab)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

The result of the division is: For 18, Against 61, Abstentions 41.

Amendment 10 disagreed to.

You might be relieved to know, convener, that I do not propose to move the rest of the amendments in this group.

I am perfectly content, Mr Brown, and I think that members in the rest of the chamber are, too.

Amendments 11 to 23 not moved.

Section 3 agreed to.

Sections 4 to 6 agreed to.

Section 7—References by the Scottish Criminal Cases Review Commission

Amendment 24, in the name of Bill Aitken, is grouped with amendments 25 and 26.

Amendments 24 to 26 would all amend section 7, and relate to the appeal process—specifically to references by the Scottish Criminal Cases Review Commission. From time to time in the course of the debate, we have indicated that there must be finality in the legal process. Everyone is entitled to a fair trial, and everyone is entitled to appeal where there are grounds to do so—no one could possibly object to that—and that is to maintain the standards of human rights that we in Scotland support.

However, under section 7(4), the issue is left open to some strange interpretation. As it stands, the bill states:

“Where the Commission—”

that is, the Scottish Criminal Cases Review Commission—

“has referred a case to the High Court under”

the relevant section of the earlier legislation,

“the High Court may ... reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.”

Frankly, that is a pretty fatuous piece of legislation. If proceeding with the appeal would not be in the interests of justice, why would it be allowed to proceed? That should be the end of the matter, pure and simple.

One can continue with the appeal process only so far, and I would be very surprised if the High Court were ever to hear an appeal when it was not in the interests of justice to do so. Why would we want legislation that said that that would be appropriate? There should be a prohibiter in section 7(4), which would be achieved by changing “may” to “must”. Amendment 25 takes that approach.

I suspect that amendment 26, in Christine Grahame’s name, is predicated on her involvement in the Megrahi case. I do not share Ms Grahame’s views in that respect, but she is perfectly entitled to put them forward.

We can allow an appeal process to continue only so far. The interests of justice demand that appeals be heard, and heard appropriately. The current wording of the bill will leave us in an extremely anomalous position, which will be profoundly unhelpful in respect of future determinations.

I move amendment 24.

Amendment 26 is a probing amendment, which is supplementary to my intervention during the cabinet secretary’s opening speech in the stage 1 debate and further develops my concern about section 7. There has been a focus on the Supreme Court’s role, the Scottish criminal legal system and the period of detention during which representation is required, and the ramifications of section 7 have been overlooked, in the main. I intend to redress that problem.

The current position is that if, after consideration, the SCCRC thinks that there might have been a miscarriage of justice, it will make a referral to the High Court if an appeal is in the interests of justice—full stop. Section 7(3)(b) will insert a further test, which can override the current criteria. The test is:

“the need for finality and certainty in the determination of criminal proceedings.”

Therefore, the interests of justice can be outweighed by the need for finality and certainty. Finality for whom? Certainty for whom? In whose interest?

Further to that substantial change to the SCCRC’s remit, section 7(4) will introduce for the High Court the power to reject a referral if it is not in the interests of justice, having regard to

“the need for finality and certainty”—

that phrase again. The current position is that when the SCCRC makes a referral to the High Court, the court must accept it—it has no discretion in the matter. The approach in section 7(4) is a substantial change. The court of appeal will be able to reject the referral, even if the case has met the test in section 7(3)(b).

Bill Aitken referred to the Megrahi case, so I will use that case as an example. Let us suppose that on Abdelbaset al-Megrahi’s death a third party steps into a dead man’s shoes and applies to the SCCRC for referral to the court of appeal, and the SCCRC says—even though the finality and certainty test has been introduced—“Yes, we agree to that referral to the High Court.” However, the High Court says, “No, we do not think that it is in the interests of justice that the referral is taken up by us; that is not in the interests of finality and certainty.” The problem is that the judges who make that decision are the very judges whose previous judgment is being challenged. There is a conflict of interest, which compounds the problem.

I referred to the Megrahi case because Bill Aitken mentioned it. Let us consider the general purpose of the SCCRC. In 2010, 97 cases were referred to the High Court. Of those, the High Court determined 73, with 44 appeals granted, 20 refused and nine abandoned. The success rate was therefore 60 per cent. If two extra hurdles are put in place—that the SCCRC and then the High Court must say that the appeal is in the interests of justice, having regard to the need for finality and certainty—how many cases will proceed in 2011?

My concern is that the provision not only deals with the Cadder case but affects all cases that are referred to the SCCRC and we have had no evidence on it. It is a substantial change to what the SCCRC can do and to the powers of the court of appeal, but not one shred of evidence have we been able to hear on it. It also follows that the amendments that the Conservatives propose would make the situation worse by taking away discretion and making the exercise of the power mandatory.

I look forward to hearing what the cabinet secretary has to say—it is important to put that on the record—and I hope that, if the provision is agreed to, the Megrahi case does not follow the path that I suspect it might if it is taken to the SCCRC.

18:00

One of the striking points about yesterday’s judgment was the need for finality and certainty. The judgment specifically referred to cases that were referred to the Scottish Criminal Cases Review Commission. One of the many concerns is that cases that would come into the retrospective category would go to the commission and might be reopened.

The important point about section 7 is that it addresses that loophole and limits the exposure on certain of the cases that have been discussed in the media of late. From that point of view, the section is essential, therefore I do not support Christine Grahame’s amendment 26.

The Conservative amendments 24 and 25 seem logical, in that, if the commission comes to the view that continuing a case is not in the interests of justice, it should make an absolute referral on it instead of leaving it open, as is the case with the way in which the bill is drafted.

In summary, I oppose Christine Grahame’s amendment and support the Conservative ones.

I have some difficulty with section 7. I must confess that when I first read the bill, my attention was on its earlier sections, and I took at face value the cabinet secretary’s assurance that sections 6 and 7 were designed to deal with the need to avoid additional cases going into the pool. We have representations from a number of legal sources about the difficulties of the matter, and the more I hear about it the more I am unhappy with the direction of travel.

To a degree, it might be argued that at least part of section 7 should make little difference to the Scottish Criminal Cases Review Commission, because the questions of finality and the interests of justice should be part of its remit and process in any event. However, the commission exists for a purpose—to provide a long stop against injustice that has gone on for a period—and has fulfilled a useful role in that regard.

Christine Grahame is right: the issues that section 7 raises go far beyond sorting out the Cadder judgment and show again why it is so difficult to draft emergency legislation that is confined to a particular issue. In practical terms, we are dealing with the remit of the Scottish Criminal Cases Review Commission and its relationship with the Scottish court of criminal appeal. We should not touch that important and sensitive relationship ill-advisedly and without full examination of the consequences. In section 7, we are not only sorting out issues that arise from Cadder—and I am not sure that it will make that much difference to the Cadder implications—but going far beyond that and affecting the commission’s operation, which is highly undesirable.

Christine Grahame is entirely right to raise the issue. Her recommendations to the cabinet secretary should be supported, and I will be interested to hear what he has to say in reply. The Liberal Democrats were concerned about the pool of cases, but I am not satisfied that section 7 makes enough difference to the pool to allow us to override the other, important issues.

James Kelly seems confident and certain that the provisions in section 7 will prevent from coming into play only cases that would have come into play had yesterday’s judgment been retrospective, but it seems clear to me that section 7 is not specific—it is general and will apply in all cases in which a reference might be made to the SCCRC. That point was debated over a long period and after proper, in-depth parliamentary scrutiny when we considered the original legislation.

I have some sympathy with the comments that Christine Grahame made in speaking to her amendment 26. In general terms, both Bill Aitken and the Government are trying to change the general procedures in the referral of cases. Why should we consider a general change to the procedure as an emergency? That speaks to my concern about the whole bill. Even if, as the Government argues, some aspects of the bill need to be treated as an emergency, why is a change to the general operation of the commission such a question of emergency?

Amendments 24 and 25 are almost diametrically opposed by amendment 26. Although we have more sympathy with Mr Aitken, the fact that we have two conflicting proposals makes us think that our suggested course of action is the one that members should initially follow.

I will deal first with Christine Grahame’s amendment 26. James Kelly was correct to make the points that he did. Lord Hope and Lord Rodger made it clear in their judgment that there are difficulties and that we require finality and certainty. As members will know if they have had the opportunity to read the judgment, those difficulties are predicated not on matters relating to the Supreme Court and Scotland or the position of the SCCRC but on matters that are almost universal to other jurisdictions. That is why the major case that they referred to was from the Supreme Court of Ireland—the case of A v The Governor of Arbour Hill Prison. The Supreme Court of Ireland made it clear that we have to have finality and certainty and that matters cannot subsequently be vastly changed, with the great difficulties that would follow. That is required in any jurisdiction and is not related to any one case or specifically to Scotland. It is what all sensible jurisdictions do to ensure that we have finality and certainty. I agree with James Kelly on those points.

To reassure Christine Grahame, I point out that the interests of justice cannot be overridden by the additional test. It is not meant to be an either/or; the bill introduces an additional and parallel test. We are saying to the SCCRC that, as well as looking at the interests of justice, it should also bear in mind the requirements for finality and certainty. On the question of judges, I can also assure her that the judge who considers a referral from the SCCRC will always be different from the original trial judge. She can have no doubts about that.

I have some sympathy with Bill Aitken’s points and where he is coming from, but the current provision in the bill is reasonable and proportionate. We believe that the existing provision is and will be acceptable to the High Court. We also have great faith in and trust the High Court’s judgment—it is not likely to act in a contrary manner. We have great sympathy for it, and we think that it will bear in mind all the issues.

We are happy again to give an undertaking that the provision will be reviewed by Lord Carloway, which provides an appropriate balance in relation to the positions taken by Patrick Harvie, Robert Brown and Christine Grahame. The bill provides an interim measure to bring in a parallel test so that the test is not simply the interests of justice. We provide for the requirement for finality and certainty that Lords Hope and Rodger correctly flagged up in their judgment, but we undertake that the provision will be reviewed by Lord Carloway and could be amended thereafter.

If the cabinet secretary regards the provisions in the bill as an interim measure, why is there no sunset clause?

I will be happy to address that point when we come to the next amendment. I think that the convener would rather that I hold my fire until then—unless he wishes otherwise.

I call Bill Aitken to wind up.

I will largely adhere to my earlier arguments. Despite what the cabinet secretary has said, I am still not persuaded that section 7 is appropriate. Indeed, if we are to have finality and certainty, we cannot have it with section 7.

With regard to some of the appeals that have repeatedly come before the High Court and which have required an ever-increasing bench each time, I was tempted to think that, by means of arithmetic progression, we will run out of available judges to hear cases and that the High Court of Justiciary will become a cast of thousands. Every time that there is a bigger bench, there will be fewer judges to hear the case who have not previously been involved in it.

There must be certainty and an underlining of the judicial process. We cannot have a situation whereby appeals that are not in the interests of justice proceed.

The question is, that amendment 24 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Alexander, Ms Wendy (Paisley North) (Lab)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brownlee, Derek (South of Scotland) (Con)

Butler, Bill (Glasgow Anniesland) (Lab)

Carlaw, Jackson (West of Scotland) (Con)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Eadie, Helen (Dunfermline East) (Lab)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

Foulkes, George (Lothians) (Lab)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Goldie, Annabel (West of Scotland) (Con)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grant, Rhoda (Highlands and Islands) (Lab)

Gray, Iain (East Lothian) (Lab)

Henry, Hugh (Paisley South) (Lab)

Johnstone, Alex (North East Scotland) (Con)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Lamont, Johann (Glasgow Pollok) (Lab)

Lamont, John (Roxburgh and Berwickshire) (Con)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McGrigor, Jamie (Highlands and Islands) (Con)

McLetchie, David (Edinburgh Pentlands) (Con)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Mulligan, Mary (Linlithgow) (Lab)

Murray, Elaine (Dumfries) (Lab)

Oldfather, Irene (Cunninghame South) (Lab)

Park, John (Mid Scotland and Fife) (Lab)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Stewart, David (Highlands and Islands) (Lab)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

Against

Adam, Brian (Aberdeen North) (SNP)

Allan, Alasdair (Western Isles) (SNP)

Brown, Keith (Ochil) (SNP)

Brown, Robert (Glasgow) (LD)

Campbell, Aileen (South of Scotland) (SNP)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

Finnie, Ross (West of Scotland) (LD)

FitzPatrick, Joe (Dundee West) (SNP)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Grahame, Christine (South of Scotland) (SNP)

Harper, Robin (Lothians) (Green)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Harvie, Patrick (Glasgow) (Green)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Kidd, Bill (Glasgow) (SNP)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

MacDonald, Margo (Lothians) (Ind)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McMillan, Stuart (West of Scotland) (SNP)

Morgan, Alasdair (South of Scotland) (SNP)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

Neil, Alex (Central Scotland) (SNP)

O’Donnell, Hugh (Central Scotland) (LD)

Paterson, Gil (West of Scotland) (SNP)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Somerville, Shirley-Anne (Lothians) (SNP)

Stephen, Nicol (Aberdeen South) (LD)

Stevenson, Stewart (Banff and Buchan) (SNP)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Tolson, Jim (Dunfermline West) (LD)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

White, Sandra (Glasgow) (SNP)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

The result of the division is: For 57, Against 63, Abstentions 0.

Amendment 24 disagreed to.

Amendment 25 moved—[Bill Aitken].

The question is, that amendment 25 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Alexander, Ms Wendy (Paisley North) (Lab)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brownlee, Derek (South of Scotland) (Con)

Butler, Bill (Glasgow Anniesland) (Lab)

Carlaw, Jackson (West of Scotland) (Con)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Eadie, Helen (Dunfermline East) (Lab)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

Foulkes, George (Lothians) (Lab)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Goldie, Annabel (West of Scotland) (Con)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grant, Rhoda (Highlands and Islands) (Lab)

Gray, Iain (East Lothian) (Lab)

Henry, Hugh (Paisley South) (Lab)

Johnstone, Alex (North East Scotland) (Con)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Lamont, Johann (Glasgow Pollok) (Lab)

Lamont, John (Roxburgh and Berwickshire) (Con)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McGrigor, Jamie (Highlands and Islands) (Con)

McLetchie, David (Edinburgh Pentlands) (Con)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Mulligan, Mary (Linlithgow) (Lab)

Murray, Elaine (Dumfries) (Lab)

Oldfather, Irene (Cunninghame South) (Lab)

Park, John (Mid Scotland and Fife) (Lab)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Stewart, David (Highlands and Islands) (Lab)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

Against

Adam, Brian (Aberdeen North) (SNP)

Allan, Alasdair (Western Isles) (SNP)

Brown, Keith (Ochil) (SNP)

Brown, Robert (Glasgow) (LD)

Campbell, Aileen (South of Scotland) (SNP)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

Finnie, Ross (West of Scotland) (LD)

FitzPatrick, Joe (Dundee West) (SNP)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Grahame, Christine (South of Scotland) (SNP)

Harper, Robin (Lothians) (Green)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Harvie, Patrick (Glasgow) (Green)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Kidd, Bill (Glasgow) (SNP)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

MacDonald, Margo (Lothians) (Ind)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McMillan, Stuart (West of Scotland) (SNP)

Morgan, Alasdair (South of Scotland) (SNP)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

Neil, Alex (Central Scotland) (SNP)

O’Donnell, Hugh (Central Scotland) (LD)

Paterson, Gil (West of Scotland) (SNP)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Somerville, Shirley-Anne (Lothians) (SNP)

Stephen, Nicol (Aberdeen South) (LD)

Stevenson, Stewart (Banff and Buchan) (SNP)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Tolson, Jim (Dunfermline West) (LD)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

White, Sandra (Glasgow) (SNP)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

The result of the division is: For 57, Against 63, Abstentions 0.

Amendment 25 disagreed to.

Amendment 26 moved—[Robert Brown].

The question is, that amendment 26 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Robert (Glasgow) (LD)

Finnie, Ross (West of Scotland) (LD)

Harper, Robin (Lothians) (Green)

Harvie, Patrick (Glasgow) (Green)

MacDonald, Margo (Lothians) (Ind)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

O’Donnell, Hugh (Central Scotland) (LD)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Stephen, Nicol (Aberdeen South) (LD)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Tolson, Jim (Dunfermline West) (LD)

Against

Adam, Brian (Aberdeen North) (SNP)

Aitken, Bill (Glasgow) (Con)

Alexander, Ms Wendy (Paisley North) (Lab)

Allan, Alasdair (Western Isles) (SNP)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brown, Keith (Ochil) (SNP)

Brownlee, Derek (South of Scotland) (Con)

Butler, Bill (Glasgow Anniesland) (Lab)

Campbell, Aileen (South of Scotland) (SNP)

Carlaw, Jackson (West of Scotland) (Con)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Eadie, Helen (Dunfermline East) (Lab)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

FitzPatrick, Joe (Dundee West) (SNP)

Foulkes, George (Lothians) (Lab)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Goldie, Annabel (West of Scotland) (Con)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grant, Rhoda (Highlands and Islands) (Lab)

Gray, Iain (East Lothian) (Lab)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Henry, Hugh (Paisley South) (Lab)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Johnstone, Alex (North East Scotland) (Con)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Kidd, Bill (Glasgow) (SNP)

Lamont, Johann (Glasgow Pollok) (Lab)

Lamont, John (Roxburgh and Berwickshire) (Con)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McGrigor, Jamie (Highlands and Islands) (Con)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McLetchie, David (Edinburgh Pentlands) (Con)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McMillan, Stuart (West of Scotland) (SNP)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Morgan, Alasdair (South of Scotland) (SNP)

Mulligan, Mary (Linlithgow) (Lab)

Murray, Elaine (Dumfries) (Lab)

Neil, Alex (Central Scotland) (SNP)

Oldfather, Irene (Cunninghame South) (Lab)

Park, John (Mid Scotland and Fife) (Lab)

Paterson, Gil (West of Scotland) (SNP)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Somerville, Shirley-Anne (Lothians) (SNP)

Stevenson, Stewart (Banff and Buchan) (SNP)

Stewart, David (Highlands and Islands) (Lab)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

White, Sandra (Glasgow) (SNP)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

Abstentions

Grahame, Christine (South of Scotland) (SNP)

The result of the division is: For 18, Against 101, Abstentions 1.

Amendment 26 disagreed to.

Section 7 agreed to.

Sections 8 and 9 agreed to.

After section 9

Amendment 27, in the name of Robert Brown, is in a group on its own.

We move to the eve of proceedings at this point. Amendment 27 would introduce a sunset clause, such as was referred to earlier. It refers to the implications of the extension of the detention periods in section 3. As things stand at the moment, the chamber has seen fit to reject a number of changes to the cabinet secretary’s proposals in that regard. We will, therefore, be bringing into effect a number of extensions to custody periods—a significant civil liberties issue that has not been examined by the Justice Committee or through the procedures of the Parliament. I welcome the setting up of the review group by Lord Carloway to look at such issues and I hope that the cabinet secretary—[Interruption.]

Order. Can members keep the background noise down, please?

18:15

I hope that the cabinet secretary will take on board some of the concerns that have been expressed in the debate today about this issue and others, and that he will have Lord Carloway examine them in more detail.

It seems to me that, given that this is emergency legislation and contains provisions that have not been examined in detail by the Parliament, it is appropriate that its duration should be limited. I have suggested that the legislation’s duration be limited to 31 December 2012—or earlier, should other legislation be put in place, perhaps following Lord Carloway’s review, which I understand the cabinet secretary wants to be under way before the next Scottish Parliament elections. That seems to me to be both a reasonable period and a reasonable proposition.

We have not made too much use of sunset clauses in this Parliament—indeed, I cannot think of one that has been passed in the way that we are discussing. However, I think that, in this context, it is an important consideration and will put pressure on the Government to ensure that the matter is examined properly as evidence develops in these areas and that the issues are dealt with properly by the Parliament. It will also help to ensure that more substantial legislation can be produced that will deal with the matter more satisfactorily.

I move amendment 27.

I have given particular consideration to the issue of a sunset clause, in light of the reasonable comments that Robert Brown has made and which Patrick Harvie made to me earlier. We would all hope that it is possible to ensure that full legislation is in place before mid-2012, but I have a concern that, if there is an unforeseen delay—or for unforeseen reasons—we could end up rushing through legislation again or, indeed, find ourselves in contravention of European Union law. I recognise that those circumstances are remote possibilities and I want to make it clear that it would be our intention to legislate within that timescale. However, we will not oppose the amendment; rather, we will abstain.

Is Richard Baker actually saying that he thinks that we could pass legislation in a more rushed fashion than we are doing today?

It is hard to see how that could be a possibility, and I concede that point to Patrick Harvie. What I am saying is that I do not think that it is entirely impossible that we could be in a situation in which we were rushing through legislation again, although perhaps not to this extent. I accept that that might be a remote possibility, but we have to take on board that important consideration when passing this statute today. Therefore, we have to take a cautious approach. I take on board the intention of what is being proposed, but I think that there are issues over practical implementation.

However, the issues that Robert Brown raised earlier around the need for fuller scrutiny of certain issues, particularly that of the extension of detention periods, are a different matter, and perhaps further measures can be introduced in that regard at stage 3.

I understand members’ concerns. We have come to the Parliament with emergency legislation only reluctantly. We said at the outset that we did not wish to be in this position. However, the decision that was published at 9.45 yesterday has brought us to this point, and we are required to act. As I said, it would have been preferable if we had been able to take more time, but I think that the points that Richard Baker made are correct. Like him, I do not think that amendment 27 is necessary. The Government is doing its utmost to ensure that there is a full discussion of the relevant matters, whether that is with ACPOS or the Lord Advocate. Equally, we are giving an assurance that Lord Carloway will deal with the matters in the bill and with many others.

As I said, those who are welcoming a great advancement of civil liberties in Scotland may very well reap what they sow. I can only refer them to certain articles, whether by Paul McBride or Lord McCluskey, about what the outcome of this situation might be. I do not necessarily see the ruling as representing a great advance for civil rights in Scotland.

Richard Baker is also correct to say that we cannot tie the hands of a future Administration, although we can argue over who that should be. We have given an undertaking that Lord Carloway will come back to Parliament on the issues, which means that they can be debated and discussed after May 2011 and that the next Administration can consider them at that point. However, if a situation arose in which, for example, the required legislation were to be dealt with as part of a wider bill that took longer than expected to pass, we might end up in a situation in which the sunset clause wiped out what we will pass today before the new legislation could be enacted. We cannot afford for that to happen. That would be fundamentally dangerous, but the situation could arise as a result of the timetable of any future Administration or because the legislation was tied in with other issues.

In the interests of good governance, and with the assurance that Lord Carloway is going to review matters and that, as all members have accepted, the status quo that we create today will be in place only temporarily, until we can reflect on it as a community and legislate on the issues at a later date, I urge members not to support amendment 27.

I will press amendment 27, as it is rather important. It is a sensible stricture on Government; I say to Richard Baker that his exchange with Patrick Harvie was perhaps not his finest moment in making a compelling argument.

We are taking an important decision today. We are putting through legislation that is said to be temporary, but which will manifestly be permanent in its implications. It is highly unlikely that we will roll back that legislation in the future, and certainly not—it would appear—under the direction of the current cabinet secretary.

These are important civil liberties issues and we need to get them right. However, we have not had the opportunity to do so, because hardly anyone has been properly consulted until now. The Parliament in particular has not been consulted in the sense of the legislation going through the proper arrangements for justice in the Parliament. That is an important issue, and we should not lose track of it in the rush to pass the bill.

The bill has many implications for police practice, the rights of suspects, the way in which solicitors operate and many other aspects of the criminal justice system, some of which are not immediately obvious. It has not had the advantage of undergoing Justice Committee scrutiny and being examined in the detailed way that it ought to be. In my view the approach that has been taken was not necessary, given the limited retrospective effect of the Cadder judgment, and amendment 27 would at least provide a stricture on any future Government of whatever complexion to ensure that it comes back to the legislation within a certain period.

Frankly, if emergency legislation can be produced within 24 hours, it should not be beyond the wit of members in the chamber and of any Government that is elected next May to do something to sort out the matter by 31 December 2012.

Against that background, I press amendment 27.

The question is, that amendment 27 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Robert (Glasgow) (LD)

Finnie, Ross (West of Scotland) (LD)

Harper, Robin (Lothians) (Green)

Harvie, Patrick (Glasgow) (Green)

MacDonald, Margo (Lothians) (Ind)

McArthur, Liam (Orkney) (LD)

McInnes, Alison (North East Scotland) (LD)

Munro, John Farquhar (Ross, Skye and Inverness West) (LD)

O'Donnell, Hugh (Central Scotland) (LD)

Pringle, Mike (Edinburgh South) (LD)

Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)

Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

Scott, Tavish (Shetland) (LD)

Smith, Iain (North East Fife) (LD)

Smith, Margaret (Edinburgh West) (LD)

Stephen, Nicol (Aberdeen South) (LD)

Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)

Tolson, Jim (Dunfermline West) (LD)

Against

Adam, Brian (Aberdeen North) (SNP)

Aitken, Bill (Glasgow) (Con)

Allan, Alasdair (Western Isles) (SNP)

Brocklebank, Ted (Mid Scotland and Fife) (Con)

Brown, Gavin (Lothians) (Con)

Brown, Keith (Ochil) (SNP)

Brownlee, Derek (South of Scotland) (Con)

Campbell, Aileen (South of Scotland) (SNP)

Carlaw, Jackson (West of Scotland) (Con)

Coffey, Willie (Kilmarnock and Loudoun) (SNP)

Constance, Angela (Livingston) (SNP)

Crawford, Bruce (Stirling) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Don, Nigel (North East Scotland) (SNP)

Doris, Bob (Glasgow) (SNP)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

FitzPatrick, Joe (Dundee West) (SNP)

Fraser, Murdo (Mid Scotland and Fife) (Con)

Gibson, Kenneth (Cunninghame North) (SNP)

Gibson, Rob (Highlands and Islands) (SNP)

Goldie, Annabel (West of Scotland) (Con)

Grahame, Christine (South of Scotland) (SNP)

Harvie, Christopher (Mid Scotland and Fife) (SNP)

Hepburn, Jamie (Central Scotland) (SNP)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Adam (South of Scotland) (SNP)

Johnstone, Alex (North East Scotland) (Con)

Kidd, Bill (Glasgow) (SNP)

Lamont, John (Roxburgh and Berwickshire) (Con)

Lochhead, Richard (Moray) (SNP)

MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)

Marwick, Tricia (Central Fife) (SNP)

Matheson, Michael (Falkirk West) (SNP)

Maxwell, Stewart (West of Scotland) (SNP)

McGrigor, Jamie (Highlands and Islands) (Con)

McKee, Ian (Lothians) (SNP)

McKelvie, Christina (Central Scotland) (SNP)

McLaughlin, Anne (Glasgow) (SNP)

McLetchie, David (Edinburgh Pentlands) (Con)

McMillan, Stuart (West of Scotland) (SNP)

Milne, Nanette (North East Scotland) (Con)

Mitchell, Margaret (Central Scotland) (Con)

Morgan, Alasdair (South of Scotland) (SNP)

Neil, Alex (Central Scotland) (SNP)

Paterson, Gil (West of Scotland) (SNP)

Russell, Michael (South of Scotland) (SNP)

Salmond, Alex (Gordon) (SNP)

Scanlon, Mary (Highlands and Islands) (Con)

Scott, John (Ayr) (Con)

Smith, Elizabeth (Mid Scotland and Fife) (Con)

Somerville, Shirley-Anne (Lothians) (SNP)

Stevenson, Stewart (Banff and Buchan) (SNP)

Sturgeon, Nicola (Glasgow Govan) (SNP)

Swinney, John (North Tayside) (SNP)

Thompson, Dave (Highlands and Islands) (SNP)

Watt, Maureen (North East Scotland) (SNP)

Welsh, Andrew (Angus) (SNP)

White, Sandra (Glasgow) (SNP)

Wilson, Bill (West of Scotland) (SNP)

Wilson, John (Central Scotland) (SNP)

Abstentions

Alexander, Ms Wendy (Paisley North) (Lab)

Baillie, Jackie (Dumbarton) (Lab)

Baker, Richard (North East Scotland) (Lab)

Boyack, Sarah (Edinburgh Central) (Lab)

Brankin, Rhona (Midlothian) (Lab)

Butler, Bill (Glasgow Anniesland) (Lab)

Chisholm, Malcolm (Edinburgh North and Leith) (Lab)

Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)

Eadie, Helen (Dunfermline East) (Lab)

Ferguson, Patricia (Glasgow Maryhill) (Lab)

Foulkes, George (Lothians) (Lab)

Glen, Marlyn (North East Scotland) (Lab)

Godman, Trish (West Renfrewshire) (Lab)

Gordon, Charlie (Glasgow Cathcart) (Lab)

Grant, Rhoda (Highlands and Islands) (Lab)

Gray, Iain (East Lothian) (Lab)

Henry, Hugh (Paisley South) (Lab)

Kelly, James (Glasgow Rutherglen) (Lab)

Kerr, Andy (East Kilbride) (Lab)

Lamont, Johann (Glasgow Pollok) (Lab)

Livingstone, Marilyn (Kirkcaldy) (Lab)

Macdonald, Lewis (Aberdeen Central) (Lab)

Macintosh, Ken (Eastwood) (Lab)

Martin, Paul (Glasgow Springburn) (Lab)

McAveety, Mr Frank (Glasgow Shettleston) (Lab)

McCabe, Tom (Hamilton South) (Lab)

McConnell, Jack (Motherwell and Wishaw) (Lab)

McMahon, Michael (Hamilton North and Bellshill) (Lab)

McNeil, Duncan (Greenock and Inverclyde) (Lab)

McNeill, Pauline (Glasgow Kelvin) (Lab)

McNulty, Des (Clydebank and Milngavie) (Lab)

Mulligan, Mary (Linlithgow) (Lab)

Murray, Elaine (Dumfries) (Lab)

Oldfather, Irene (Cunninghame South) (Lab)

Park, John (Mid Scotland and Fife) (Lab)

Peacock, Peter (Highlands and Islands) (Lab)

Peattie, Cathy (Falkirk East) (Lab)

Simpson, Dr Richard (Mid Scotland and Fife) (Lab)

Stewart, David (Highlands and Islands) (Lab)

Whitefield, Karen (Airdrie and Shotts) (Lab)

Whitton, David (Strathkelvin and Bearsden) (Lab)

The result of the division is: For 18, Against 61, Abstentions 41.

Amendment 27 disagreed to.

Section 10 agreed to.

Long title

Amendment 28 not moved.

Long title agreed to.

That ends stage 2 consideration of the bill.

It has been intimated during stage 2 that members may wish to lodge amendments at stage 3. I will now suspend proceedings for five minutes in order to allow them to discuss whether they will do so. If there are to be amendments at stage 3, I will require a further suspension. I ask members who wish to lodge amendments to come to the well of the chamber to discuss the matter with the clerks.

Meeting closed at 18:23.