Scottish Parliament
I advise members, for their guidance, that proceedings will be suspended until 7 o’clock.
18:30
Meeting suspended.
18:59
On resuming—
Motion without Notice
I am minded to take without notice a motion to suspend rule 2.2.5(c) of the standing orders to allow the Parliament to continue beyond 7 pm.
Motion moved,
That Rule 2.2.5(c) be suspended to allow the Parliament to continue beyond 7 pm.—[Bruce Crawford.]
Motion agreed to.
Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill: Stage 3
We come to stage 3 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill. The Presiding Officer has accepted one manuscript amendment. Members will find the marshalled list on their desks. Amendment 1, in the name of Robert Brown, is in a group on its own.
The chamber will be glad to know that amendment 1 is the only amendment in the stage 3 process; nevertheless, it is an important amendment. I refer members to what I said earlier about problems with section 1(8). I said that the section undermines the right of a suspect to access a solicitor, given that it indicates that a constable can continue the interrogation of a suspect without a solicitor being present. The circumstances that are given are quite elaborate. The Cabinet Secretary for Justice was kind enough to say that he envisaged that the provision would be used in exceptional circumstances. Amendment 1 proposes to add to section 1(8) the words “in exceptional circumstances”. I anticipate with confidence that the cabinet secretary will be able to accept the amendment.
I am anxious to have a definition, even by means of example, of what constitutes “exceptional circumstances”.
I am hastily trying to think of what the circumstances might be. It could well be where there is information about other terrorist suspects or drug people—something of that sort. It is difficult to know exactly what the position would be. My difficulty is that I am not clear what the cabinet secretary had in mind in having the section so drafted in the first place.
Given that we are, apparently, about to pass very rushed legislation, we may find many errors in the bill—errors that we do not have time to correct before the bill goes to the final vote. If we accept Robert Brown’s amendment 1, could legitimate challenge be made if the practice became regular and routine? If that were to happen, could people say, “This is not being used in exceptional circumstances. This is being used routinely.” Surely that would provide a reasonable safety lock to the provision becoming standard practice.
Patrick Harvie’s intervention is helpful. Certainly, that is the intention of the amendment. In the circumstances under section 1(8), we have to have confidence to a degree in the ability of the court to interpret things reasonably, given the set of circumstances that come before them. I do not pretend to have a comprehensive view of all the circumstances that may arise. Patrick Harvie got to the nub of the matter. As he said, we do not want the situation to arise where the rights that Cadder purports to give to people—following on from Salduz and the European convention on human rights considerations—are taken away by routine avoidance of the requirements.
I am still having a little bit of difficulty with the proposal, but I think that Robert Brown can clear things up for me. I asked him for an example. I know that it is late in the evening and that it is difficult to come up with a spontaneous response. That said, the example that he cited of terrorism, of course, comes under United Kingdom terrorism legislation under which the powers of detention are much firmer. As such, the example is not an apposite one.
I take the rebuke. The point is correctly made. The central core of my argument is that, under the ECHR arrangements, people should have a right of access to a solicitor to advise them during questioning while they are under police detention. My central point is that that ought not to be aborted routinely. If we add into the bill the wording “in exceptional circumstances”, it makes it clear that justification of a substantial kind—the kind of justification that would stand up in court—is required. All of this is likely to be the subject of comment by courts at various levels, if people object to what happens in particular situations. Clearly, there will be no issue if people see no difficulty or if they have agreed certain things and are happy with what has been said or done. However, if accused persons’ solicitors take the view that what has taken place has denied them their rights or has affected the outcome of the case in a substantial way, they will have an objection. Earlier I made the point that I thought that the bill might not be compatible with the European convention on human rights, given the terms in which the Cadder judgment was expressed. Bill Aitken may accept that point.
I am interested in the cabinet secretary’s response to the amendment, which is a genuine attempt to improve the bill in relation to an issue about which we have made valuable points without our amendments having been successful so far. Amendment 1 is a valid amendment that could be accepted. Given the cabinet secretary’s earlier comments, I hope that he will view it favourably.
I move amendment 1.
The Government is happy to accept the amendment. I have had an opportunity to speak to both the Association of Chief Police Officers in Scotland and the Crown Office, which confirm that it merely puts on the face of the bill what is common practice. Mr Graham from ACPOS made it clear that the police would utilise the power only in exceptional circumstances, but we are happy to state that in the bill.
Patrick Harvie can rest assured that agents will use the amendment to challenge the practice that he describes, in the few instances where that happens. Doubtless the High Court will set guidance and guidelines at that stage. We cannot be too precise—I have every sympathy with Mr Brown in that regard—and will have to wait and see what exceptional circumstances arise. However, we accept the spirit in which the amendment has been lodged. The amendment confirms what is happening in reality. Mr Brown and Mr Harvie can be assured that the police and the Crown already acknowledge that but are happy for it to be stated in the bill.
I am grateful to the cabinet secretary for accepting the amendment. He referred to ACPOS. An important distinction must be made throughout between ACPOS guidance, which is not the law, and the law of the land, which the Parliament is passing. On a number of occasions this afternoon, the cabinet secretary has elided that difference. We are debating a provision that will be included in the bill. I am grateful to the cabinet secretary for accepting the amendment, which will make a reasonably significant difference to understanding the procedure in this matter.
Amendment 1 agreed to.
Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill
The next item of business is a debate on motion S3M-7268, in the name of Kenny MacAskill, that the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill be passed.
19:07
I thank members for their forbearance; it has been a long day and a fairly gruelling couple of days. I am grateful to members, as this is an important matter that we must address. I put on record my thanks to all the staff involved, especially those in the bill drafting team. The bill had to be drafted at breakneck pace. Although preparations were made and scenarios were planned for, details were not available or known about until 9.45 yesterday—[Interruption.]
Order. Far too many conversations are going on that could, if necessary, take place outside the chamber.
Members of the bill team, the justice department, my private office and people in the Parliament have worked above and beyond the call of duty to ensure that essential and necessary legislation is passed. They have the Government’s thanks for the efforts that they have made to ensure that we have been able to deal with these matters.
There has not been the usual delay of many weeks, if not months, since stage 1, so many of the issues have already been discussed. Given the time, I will not seek to inflict those points yet again on Parliament. Suffice it to say that the Government did not wish to find itself in this position, which is the result of a decision by the Supreme Court. We have had debates about constitutional matters, which will be continued elsewhere. However, we are grateful that the Parliament has worked with us to respond to the decision in the way that is required.
The cabinet secretary said that he did not want to repeat any of the points that were made earlier. I apologise for repeating my point, but before we vote on the bill I want to be clear about who will decide on the nature of the representation that is provided. Will it be the accused or the Scottish Legal Aid Board?
I struggle to understand the point. We are having to change things—the matter was raised with us by the criminal law committee of the Legal Aid Board. Previously, there would always have been a nominated solicitor. The Legal Aid Board and legal aid lawyers do not wish to be troubled in the middle of the night on many an occasion, and this is at their request—they are asking for the arrangements to be changed so as to involve a directed solicitor. That is done on the agreement—
Will the cabinet secretary give way?
If I could just finish the point. One of the worries that lawyers used to have—and I practised in that profession myself—was that if they did not have access and could not deal with the situation, they might lose their client to somebody else. It is fair to say that the legal profession is now striking a balance: lawyers do not wish to be disturbed at all hours of the night to deal with their clients, so there will be a solicitor who is directed by the Legal Aid Board. However, that solicitor will not necessarily be the one who will appear should the person subsequently be brought into court. It will be a matter of the Legal Aid Board making that direction, and that would be done with the consent of the criminal lawyers, but on the basis that the person who attends at the police station is not necessarily the person who will be the lawyer thereafter. I do not know whether that clarifies the point for the member.
I refer to a point that Robert Brown raised earlier. We discussed whether or not a phone call would be held in private, or whether there would be a private consultation. Who decides whether the accused gets access to the lawyer via a phone call or through a private consultation? That is what I meant.
The assumption is that it will be a private consultation, unless there is some good reason for things to be otherwise. That good reason might come from the client—the individual who is detained—who might not want to wait for two hours, say, for the lawyer to come and see them. They might be happy to take their chances, and they might not have much to say, so they might ask simply to get on with it rather than wait. Sometimes, they will be happy to speak to their lawyer on the phone rather than waiting two hours for them to arrive, and to discuss the situation that way. There might be occasions involving force majeure or whatever, when the lawyer cannot get there and time ticks on. Such situations are a matter of balance.
There is the ultimate caveat that, if any admission is made, it will not be a factor that is considered at the trial before any presiding sheriff or at any appeal. It is not a matter of either/or—it is a matter of circumstances. The initial view is that the right of access is there, but there can be circumstances that overcome it.
Pauline McNeill has reminded me of the question about constitutional matters and what aspects the Government had worked on beforehand regarding matters going before the Privy Council and the House of Lords. When we instructed Professor Neil Walker to carry out an investigation into questions around the Supreme Court and ultimate appeals in Scotland, he looked into that aspect, and it is contained in his report. The matter was flagged up to us by the Crown.
The issues have been canvassed, and we accept that the change in the law of Scotland is a significant one. It has been brought upon us, and the Government sees, with perhaps the same heavy heart that Paul McBride and Lord McCluskey referred to, a pyrrhic victory on the part of those who view the developments as a great advancement of civil liberties in Scotland. It might very well be so, if that is how people see it—I have to say that I do not see it that way. The downside could be significant, and it could be a change for the worse.
That is where we are, and we have had to deal with the situation. We have provided what is necessary within the European convention on human rights; we have balanced the provisions with the extension of periods of detention; we have ensured that those who are required to attend are provided for with legal aid funding; we have dealt with the question of the certainty of appeals; and we have dealt with matters in respect of the Scottish Criminal Cases Review Commission. The Parliament, especially those members in other parties who have some concerns, have the assurance that all those matters will be reviewed by Lord Carloway. They will have to be the subject of primary legislation after May 2011. If Lord Carloway or others flag up some issues, there is the possibility of returning to the matter. I do not see that as being the situation, however.
The bill is a temporary fix that allows us to deal with the consequences of Cadder v HMA. In due course, the Parliament post 2011, however it is constituted, will have a bill dealing not simply with the aspects that we have touched on today but with deeper, more fundamental matters. At that stage, many of us might ask whether it was worth the candle as far as Cadder v HMA was concerned. However, this is the position that we find ourselves in.
I move,
That the Parliament agrees that the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill be passed.
19:14
This has been a constrained but important process, in which key issues for our justice system and Scots law were raised, the most important of which for us is that we act for the benefit of justice and our legal system.
We heard the debate on the necessity for and quality of the bill, and I remain persuaded by the cabinet secretary’s arguments on the need to support it, notwithstanding the efforts of some Scottish National Party backbenchers to persuade me otherwise during the stage 1 debate, when they tried to turn the matter into a debate on independence. Their arguments were odd, given their party’s support for legislation on ECHR and enthusiasm for Scotland in Europe.
We must be realistic, and it is not realistic to suggest that we should not be treated in the same way as Belgium, Ireland and the Netherlands, which face exactly the same situation, are treated. We heard the point that the First Minister made, but a hearing by the European Court of Human Rights would have only delayed matters, not changed them.
All the evidence is that situations such as the one that we face are best addressed expeditiously, so we agree that it is right to move quickly to ensure that our provisions on access to legal representation during detention are compliant with European law, in statute as well as in practice. It is not evident that not moving to such a position would not carry a risk of further legal challenge. It is right to be cautious and accept what the cabinet secretary said.
I agree that it is necessary that the SCCRC considers finality when it deals with applications. That could make a material difference in the number of cases that will be affected by the Cadder judgment.
We had some sympathy with the idea of a sunset clause and with the idea that extensions to detention should be approved by sheriffs. If we had had more time, we might have come to different conclusions, particularly on the latter point, but due to the issues of practicality, which we are not currently in a position to gainsay, we supported the Government position.
However, I remind members that the issues will be fully debated when we consider new legislation on all those matters, which should happen as soon as is practicable and sensible. Labour is committed to bringing forward legislation, if we are in a position to do so, on the most feasible, sensible and expeditious timescale. The problem with a sunset clause is that we do not know what is in the future. Any Parliament can face unforeseen circumstances and it is not acceptable that we should potentially again face a situation in which we mush rush through legislation or in which we are not compliant with European law. That is why I stand by our position on amendment 27.
The process will be informed by a much fuller debate on a bill, subsequent to Lord Carloway’s important review, which we welcome. Even at this late hour, I want to inject optimism into the debate—as Ed Miliband said, “We are the optimists”. We should not accept that it is inevitable that at the end of the process we will have a worse legal system. The process might ultimately provide an opportunity to seek improvement, as a consequence of Lord Carloway’s review. We did not seek to review the arrangements, but we do so now and we might end up with better law and better legislation. We should at least look forward to that happening—it might not be inevitable but it is surely possible.
The process has been somewhat traumatic, but today we did what needed to be done as an interim measure. The Government was right to introduce the bill on that basis. We look forward to further debate on and full legislative scrutiny of the matters in the fullness of time.
19:19
I am pleased that the Parliament will vote in favour of the bill at decision time—I hope that it will do so.
Notwithstanding the European convention on human rights and the Human Rights Act 1998, I would argue that, in the past, Scotland has gone above and beyond what is required to protect its citizens’ rights. Despite the Supreme Court’s ruling, we have a fair justice system. The third verdict of not proven and the need for corroboration are just two ways in which the Scottish system achieves justice and respects individuals’ rights.
We should not forget that the consequences of the Salduz v Turkey case, which was brought to the European Court of Human Rights, are the reason for the emergency bill that we are considering. In that case, a juvenile had not been granted the right to see a lawyer during the first few hours of interrogation, during which he self-incriminated.
In light of the circumstances of Salduz, I find it remarkable that the case can now be used through the human rights convention to influence Scots law in the way that it has. Salduz was convicted of participating in a demonstration for an organisation that Turkey had deemed to be illegal and for hanging an illegal banner. Was the real injustice committed by Turkey when it denied him the right to a lawyer during his interrogation or when it denied him the right to participate in a demonstration? The human rights convention argues that the right to a lawyer is a fundamental human right, but is the right to speech, protest and association not far more fundamental?
It would not be our job to determine the validity of Turkish law, but the consequences of the case are felt here today because of the Supreme Court’s decision and the decision of others to incorporate the human rights convention into Scots law in the way that they did. As we heard from many speakers over the afternoon, the impacts of the decision will be far reaching. The costs to the public purse will increase significantly and the police fear that our relatively high conviction rates will be compromised.
The decision has also significantly shifted the balance of our justice system in favour of the criminal rather than the victim and the law-abiding majority in Scottish society. Scottish criminal law will never be the same again. Scotland has lost control of its criminal justice system, not as a result of the UK Supreme Court’s decision but because other political parties decided to incorporate the European convention on human rights into Scots law through the Scotland Act 1998.
We have heard much nonsense from some Scottish National Party back benchers. They say that, in an independent Scotland, things would be much different, but we would still be subject to the convention through the European Court of Human Rights and we would still be living with the consequences of the decision to incorporate the convention into Scots law.
The Conservatives are pleased to support the bill and will participate fully in the review of Scotland’s criminal law and practice.
Well said, John.
The conscience of the Tory party is at the back of the chamber.
Order.
19:21
The emergency bill process has been fairly long, but this has nevertheless been an important event and the Parliament has risen to the occasion.
The dispute is about a major issue of civil liberties, rights and detention periods. Normally, I take a cautious approach on such matters. As I think the cabinet secretary will concede, when we have dealt with justice bills in the past I have often been prepared to accept his position, backed as it is by Government resources. However, in this case I am not by a long, long straw convinced of the position that he has taken.
Obviously, I do not object to the fact that there must be legislation and that action must be taken to deal with the results of the Cadder decision; my concern arises from the fact that it has been so rushed—unnecessarily. The Lord Advocate rightly put in place interim arrangements to deal with the position from July. I am not clear that any additional cases would have been produced had we not legislated on the matter today, but taken the bill through the Parliament properly.
The debate has drawn out the fact that the bill gives rise to a lot of issues. For example, there is the fairly arcane but important debate about the attempt to adjust the balance between the Scottish Criminal Cases Review Commission and the High Court. Some of the issues could not be developed in the time available. Alison McInnes made an interesting point about the effects on children. The point was not taken further, but it emerged that the detention periods for children who are in custody—in the context of the bill, children are people aged under 18—will be the same as for adults. The Parliament has not examined that.
We heard some issues about consultation. It became clear that the cabinet secretary consulted primarily prosecution interests. The interests that take a broader view, such as the Law Society of Scotland and the Scottish Human Rights Commission, take the view that it would have been possible to go ahead with legislation in the normal way, given the precaution that the cabinet secretary put in place.
I am not clear about the position that the cabinet secretary and the SNP Government take on the European convention on human rights. They seem to have considerable qualms about the Cadder decision. Not to beat about the bush, I understand where they come from on that—I share some of them—but it is clear from a reading of the judgment, which, as I have said before, had two significant Scottish lawyers as the lead judges, that whether the decision was by the UK Supreme Court or by the European Court of Human Rights is academic; it was obvious what was going to happen. The result would have been the same even if the decision had been taken in another jurisdiction. Any other argument is a red herring.
We have a decision that we have to follow up. The cabinet secretary recognised that if we had not taken action on it we would have left Scotland exposed as one of the only countries in Europe that did not afford the level of protection that the European convention provides in other European countries. That is not a position that I would like to be in.
Against that background and the Government’s failure to accept a number of points—the need for a sheriff to certify detention periods, to change the detention period and to allow a bit of time on some of the issues, and the uncertainty on section 1—Liberal Democrats will vote against the bill tonight. We do not do that easily; we do it because we are convinced that major issues in the bill have not been satisfactorily dealt with. Indeed, in this process they could not have been, which means that we will be subject to further challenges if we are not careful and the implications of the major changes the bill makes have not been worked through.
The member should finish.
I will come to an end on that point. There are major issues that still need to be dealt with and which will come back to haunt us in the weeks and months to come.
19:26
I am extremely concerned at how the Government has used this emergency bill to change the criminal law of Scotland in ways that have no relevance to the emergency that we faced. Our justice minister has been keen to quadruple, from the current six hours to 24 hours, the time that suspects can be detained by the police before charge or release. That is simply wrong.
I have been somewhat alarmed by the justice minister’s use of language in the debate—
For goodness’ sake.
That intervention is indicative of the justice minister’s attitude to the issue. I am disappointed that, even now, from a sedentary position, he dismisses my comments in that way.
The justice minister consistently referred to criminals being detained by the police and the risk of criminals escaping justice. I ignored it at first because I thought it was a slip of tongue, but it was not and I intervened to point it out to him at stage 2. It is indicative of the justice secretary’s approach that, when I pointed it out, he did not understand the difference between a criminal and a suspect. I find that extremely worrying.
What is more, the justice secretary says that he has consulted, but he has consulted only the police, the Association of Chief Police Officers in Scotland, the prosecution and the Lord Advocate.
Has the member made any representations to his colleagues in Westminster about what will happen when people are warned about, and sometimes detained for, making false applications for social security benefits because they did not understand the form? Does it concern him that people could lose their benefits, or is this a case of him being more sympathetic to those who are charged with serious offences than to those who are the poorest and most vulnerable?
That intervention says everything about the attitude of our so-called justice secretary. I think that he should be ashamed of what he has just said and of the approach that he has taken to the debate. It is entirely wrong.
I am a member of the Scottish Parliament, as is the justice secretary. We should take the passing of criminal legislation in this Parliament extremely seriously—not smile and laugh about it and dismiss it, but take it seriously. I made the point—
That is pathetic.
The minister said that that is pathetic.
Yes.
Well, I am making what I think to be reasonable and serious points, and I would hope that our justice secretary would listen to them carefully. He may not like what I am saying, but that is my job as an MSP. I represent the people of West Aberdeenshire and Kincardine. I want to represent them properly in this Parliament to ensure that no innocent people are detained for 24 hours without charge. It might come as a surprise to the justice secretary that innocent people are arrested by the police. The police do a really good job, but not everybody they arrest is a criminal, and I am shocked that the justice secretary has a problem with that. We are facing a fundamental issue.
In my view, it is simply wrong to use an emergency bill to increase so dramatically—to 24 hours—the time that innocent citizens can be detained without charge. Let us not forget that the emergency bill was intended to allow suspects legal representation. The Government has misused the process. What we have now is a bill that changes the law without our having any evidence before us. This is a bad bill. It has been an unsatisfactory process that has produced a bad law, and the Liberal Democrats will not support it.
19:30
We have really not shown ourselves at our best today, in terms of our process and the muddle that always comes with rush. I am sorry to say that I also do not think that the cabinet secretary has shown himself at his best. He knows that, when he has previously taken very controversial decisions and been attacked by Opposition parties, I have not taken an opportunistic oppositional position. I have been prepared to back him on some controversial issues in the past. However, I am prepared to say that the cabinet secretary has not shown himself at his best today either on points of process—for example, he acknowledges that the bill is an interim measure but opposes the idea of a sunset clause precisely because the legislation will be temporary: an argument that makes no sense—or on points of substance.
There are times when we feel that being challenged by Mike Rumbles is an indication that we are on sure ground—but today was not one of them. The point that Mike Rumbles made in his most recent speech was significant. At one point in his speech, the cabinet secretary dismissed the distinction between criminals and suspects as “pedantry”—he dismissed the presumption of innocence as pedantry. I hope that he comes to regret that intemperate remark.
The cabinet secretary and the Government have made a poor show of arguing either that there is an urgent need to change the period of detention—indeed, to quadruple the period of detention in some circumstances—or that there is an urgent need to change the remit of the SCCRC. They have made a poor show of arguing that there is no need for a sunset clause, and I would say that they have made a poor show of arguing that the bill should be treated as emergency legislation at all. In his first speech in the stage 1 debate, Bill Aitken described the bill as a form of firefighting. I am sorry to say that I think that we are firefighting while nothing is burning down. This is not an emergency, and there are slower, calmer and more considered ways of dealing with the situation.
There are members of all parties who are a bit tired and annoyed at having had to cancel other plans that they had for this evening. There are, no doubt, community groups around the country that have been deprived of our fine presence this evening. I had a pleasant evening planned, so, in compensation, I will be going to the bar after the debate. If any member wants to join me there, I will offer a wager. I will wager a drink—a double if they are a minister—that, within a year, we will come to regret some detail of this bill; some detail that we cannot fully understand because there has been no scrutiny to date. I will offer a further wager that, in the next session, we will have to rewrite the whole thing.
Like the Liberal Democrats, the Greens will vote against the bill at decision time.
19:34
I will make just a couple of comments because I appreciate that members have heard a lot from me today, but what I have to say is not unimportant. The central point of the debate on the bill has been the lack of evidence that has been brought forward by the Scottish Government to justify not legislation, but legislation at this particular point in time. That is the point on which it is hung up today.
I have two points to make on that. First, during the course of the debate, I received an e-mail—not in the chamber, but when I went back to my office—from the president of the Glasgow Bar Association. In response to the point that was made about six people being seen by a solicitor, he pointed out that a solicitor should not see more than one accused in custody anyway, according to the code of conduct. He said that, therefore, there would be no danger of their exhausting six hours by interviewing multiple accused. I do not know the ins and outs of it, but I seem to recall that changes that were made to the relevant provisions separated out representation of such matters a little while ago. Whatever the rights and wrongs of that might be, it is an example of the sort of point that has not been addressed in the debate, but which should have been the subject of proper consultation that would have enabled us to find out the precise reality of the situation.
There is no need to legislate quickly. There is no evidence that there will be a flood of other cases because of the lack of retrospectivity of the decision. At the end of the day, this is an important issue. There used to be a sort of theme that criminal statutes were strictly construed—in other words, that one had to establish a case before one could do things that would interfere with the liberty of the subject. That is a good rule, which ought to be applied to this bill. Unfortunately, it has not been and, against that background, the bill ought to be defeated when we vote on it tonight.
19:35
It has famously been said that people should be careful what they wish for. All of us in the chamber are uncomfortable because, today, we have simultaneously taken away some of the civil rights that people regarded as being acceptable—namely on detention by the police beyond the prescribed time—and, undoubtedly, made life easier for the criminal elements. That has resulted because of the original case in Turkey, a country on account of whose appalling human rights record we are now suffering.
The blame for that, as I said earlier, lies not with the courts in Europe or London, or with the High Court in Scotland, which got it entirely correct in relation to the McLean case, but with the fact that, under the Human Rights Act 1998, we were tied into the ECHR. As far as I am aware, everyone in this chamber believes in human rights. However, the European conception of human rights is exceptionally dangerous and has been proved dangerous because of its one-cap-fits-all requirement. What was appropriate in respect of the Turkish case to ensure that human liberties were protected there could surely not apply in Scotland. Those who signed up so enthusiastically in 1998 are in fact the authors of our current misfortunes.
I note Patrick Harvie’s offer. I would have been a little bit more impressed if he had offered a drink rather than a wager, but nevertheless he made his point. He said that I referred to today’s duties as firefighting duties. I reiterate that, because we have had to act. There are many imperfections in what we have had to do, but the fact is that Lord Carloway will now carry out the appropriate review. If there had not been that provision, we would have been very tempted indeed to vote for a sunset clause. However, the fact that it will happen has safeguarded the position.
Bill Aitken said that in his opinion the bill will make it easier for the criminal. In that case, is he going to vote for it?
I am forced to vote for it, because it is the only thing that will protect wider society. It will make it easier for the criminal. Throughout this procedure, the point that has been omitted is that the existing situation, which had been in place for many years, had caused absolutely no difficulties whatever. The court ruling has put that in jeopardy, which is why I and every other responsible member of the Parliament has to vote for the bill at decision time.
19:38
There is no doubt that this has been a long and, at times, difficult afternoon, but the process has been absolutely necessary. As a direct consequence of yesterday’s judgment, there is no doubt that the Government had to act. I do not think that we could have continued with a situation in which certain elements of Scottish law were not compatible with the ECHR. Therefore, with some reservations, the Labour Party supports the bill at stage 3.
On the key elements that have been discussed this afternoon, the Government clearly had to address the issue of giving suspects the right to access to a solicitor. That was a direct consequence of the judgment.
There was a great deal of controversy around the extension of time periods. The current guidelines, which the Lord Advocate issued in July, set the time limit at only six hours. The provision in the bill moves that to 12 hours, with the potential for an application for an extension to 24 hours to be made.
There is reasonable justification for the move to 12 hours, and some practical examples have been given during today’s debate. A lot of members have expressed reservations about the move to 24 hours, and some discussions took place prior to the lodging of stage 2 amendments. To an extent, we have taken assurances from law officers and the Government on trust, so we will see how that process pans out.
Certain elements of the bill are necessary in order to close loopholes. There has not been much mention of the provisions in the bill for bills of advocation and suspension under summary procedures. The bill introduces procedures to deal with that and sets a 21-day limit, which will, I hope, put a cap on any challenges that emerge under those provisions.
The issue of finality and certainty, which was cited in the judgment and which we discussed earlier, had to be addressed; it could not have been left aside. As such, the provisions under section 7 of the bill are relevant.
I remain concerned, as I said earlier, about the costs of the legislation. The financial memorandum states that there will be costs of £30 million. A police summit took place earlier in the week that was attended by the cabinet secretary and other justice spokespersons. A direct consequence of the legislation would be £20 million of police costs, which would have an implication for front-line policing. The Government must carry out an impact assessment on that.
It is welcome that the judgment was not retrospective, and there has been some debate about how many live cases the Government is potentially exposed on. It is hoped that the provisions that we will progress today will limit the number of cases that can be challenged.
We will engage constructively with the work that Lord Carloway will undertake, because it is absolutely key. It will examine some central features of Scottish law, such as corroboration, and will provide an opportunity to review the bill that will be passed today and to assess any changes that may be required. That will, we hope, give some comfort to members who have reservations.
I emphasise that Labour supports the bill at stage 3. We have engaged constructively with the Government; SNP back benchers who lined up to attack the Labour Party in their speeches should perhaps remember that. We have put a certain element of trust in the Government, so we will look closely at how the provisions work in practice and bring forward changes in the future if they are required.
19:43
I reiterate my thanks to all those involved today—not simply to members, who have been delayed and stayed late, but to the staff in the Government, in Opposition parties and in the Parliament in particular.
I will clarify a couple of matters. All members of the Government—and indeed all members in the chamber—accept the justification for signing up to the ECHR. We disagree on why it is contained in the Scotland Act 1998, imposing powers and obligations on us that are not replicated elsewhere. It is, therefore, not the ECHR that we view as the problem. In the chamber, we are, perhaps, occasionally gobsmacked by some interpretations of it, just as people outwith the chamber are sometimes outraged about payments that are made in respect of slopping out or other such issues. Members share concerns, but nobody doubts the requirement for the ECHR.
As I have said, the issue is not the ruling of the European Court of Human Rights on Salduz but the interpretation made by the United Kingdom Supreme Court.
After the whole debate and after reading the judgment, is the cabinet secretary seriously maintaining that the European Court of Human Rights would have made a different decision from the United Kingdom Supreme Court on the matter?
Well, we do not know. What we do know is that, in October 2009, a court of seven judges, presided over by the Lord Justice General and assisted by the Lord Justice Clerk, considered the case of Salduz v Turkey and held that the system under Scots law was perfectly compatible with the ECHR. The difficulty that we now face is that the UK Supreme Court has taken a decision that it is incompatible. It has turned Scottish criminal law on its head.
Scottish judges.
Reference has been made to the Scottish judges.
Exactly.
Order, Mr McLetchie.
However, as was pointed out, Mr McLetchie, the self-same judges—Lord Hope and Lord Rodger—sat in Scotland for more than 30 years. I started practising in 1980 and they were on the bench then. Indeed, they were in law officer positions and they did not see any problem. That point has been much more eruditely pointed out by Lord McCluskey. Something or other seems to have happened between when they sat on the bench or as law officers in Scotland and when they took on the—I was going to say ermine, but I will not say that as they appear in their lounge suits down there.
We do face a challenge and we are grateful to others for rising to it. I regret that Patrick Harvie does not view the matter as significant. A fundamental change was wreaked upon the Scottish legislative position yesterday.
Will the minister give way?
No. Time is moving on.
The fact of the matter is that there is a fundamental change—lawyers will now require to be in for interviews with detainees. As I have said, that changes matters. It has always been the case that the scales of justice have to be balanced. That is why, as soon as that became required within Scots law, we required to act to deal with other consequential matters, including the lengthening of the period of detention.
Finally, let me deal with the question of the Liberal Democrats. I understand that they intend to vote against the bill. As I pointed out earlier, it is rather remiss that they do not seem to have any care or concern for the vulnerable who are affected south of the border but they do seem to worry about those who are affected by the change here. [Interruption.]
Order.
I say quite clearly to Mr Rumbles that the next time I meet the Scottish Police Federation or the police in Grampian, I will point out to them that I believe that police officers in Scotland do not detain people on a whim or a fancy and that we have the checks and balances of the procurator fiscal acting in the public interest. For him to express the view that, somehow or other, police officers the length and breadth of Scotland are out arresting innocent people—
They do arrest innocent people.
—is frankly a ridiculous, scurrilous attack on hard-working officers who often put their lives on the line. Mr Rumbles can rest assured that we will be transmitting this debate to the Police Federation.
In winding up, I reiterate my thanks. I regret having to introduce the bill, but it is necessary because of what happened south of the border, which was pronounced upon at 9.45 yesterday.
Business Motions
The next item of business is consideration of business motion S3M-7260, in the name of Bruce Crawford, on behalf of the Parliamentary Bureau, which sets out a business programme.
Motion moved,
That the Parliament agrees the following programme of business—
Wednesday 3 November 2010
2.00 pm Time for Reflection
followed by Parliamentary Bureau Motions
followed by Stage 3 Debate: Housing (Scotland) Bill
followed by Business Motion
followed by Parliamentary Bureau Motions
5.00 pm Decision Time
followed by Members’ Business
Thursday 4 November 2010
9.15 am Parliamentary Bureau Motions
followed by Scottish Labour Party Business
11.40 am General Question Time
12.00 pm First Minister’s Question Time
2.15 pm Themed Question Time
Health and Wellbeing
followed by Stage 1 Debate: Historic Environment (Amendment) (Scotland) Bill
followed by Parliamentary Bureau Motions
5.00 pm Decision Time
followed by Members’ Business
Wednesday 10 November 2010
2.00 pm Time for Reflection
followed by Parliamentary Bureau Motions
followed by Stage 3 Proceedings: Alcohol etc. (Scotland) Bill
followed by Business Motion
followed by Parliamentary Bureau Motions
5.00 pm Decision Time
followed by Members’ Business
Thursday 11 November 2010
9.15 am Parliamentary Bureau Motions
followed by Scottish Government Business
11.40 am General Question Time
12.00 pm First Minister’s Question Time
2.15 pm Themed Question Time
Rural Affairs and the Environment;
Justice and Law Officers
followed by Scottish Government Business
followed by Parliamentary Bureau Motions
5.00 pm Decision Time
followed by Members’ Business—[Bruce Crawford.]
Motion agreed to.
The next item of business is consideration of business motion S3M-7261, in the name of Bruce Crawford, on behalf of the Parliamentary Bureau, which sets out an extension to the stage 2 deadline for the Children’s Hearings (Scotland) Bill.
Motion moved,
That the Parliament agrees that the deadline for consideration of the Children’s Hearings (Scotland) Bill at Stage 2 be extended to 5 November 2010.—[Bruce Crawford.]
Motion agreed to.
The next item of business is consideration of business motion S3M-7262, in the name of Bruce Crawford, on behalf of the Parliamentary Bureau, which sets out an extension to the stage 1 deadline for the End of Life Assistance (Scotland) Bill.
Motion moved,
That the Parliament agrees that the deadline for consideration of the End of Life Assistance (Scotland) Bill at Stage 1 be extended to 26 November 2010.—[Bruce Crawford.]
Motion agreed to.
I am minded to take a motion without notice to take business motion S3M-7284, to remove members’ business from today’s business programme.
Motion moved,
That the Parliament consider Business Motion S3M-7284.—[Bruce Crawford.]
Motion agreed to.
Accordingly, the next item of business is consideration of business motion S3M-7284, in the name of Bruce Crawford, on behalf of the Parliamentary Bureau, which—believe it or not—revises today’s business programme.
Motion moved,
That the Parliament agrees the following change to the Business programme for Wednesday 27 October 2010—
delete
followed by Members’ Business—[Bruce Crawford.]
Motion agreed to.
Parliamentary Bureau Motions
The next item of business is consideration of Parliamentary Bureau motions S3M-7263 to S3M-7265, on the approval of Scottish statutory instruments.
Motions moved,
That the Parliament agrees that the Revised Code of Conduct for Councillors for the Ethical Standards in Public Life etc. (Scotland) Act 2000 be approved.
That the Parliament agrees that the Welfare of Farmed Animals (Scotland) Regulations 2010 be approved.
That the Parliament agrees that the Prohibited Procedures on Protected Animals (Exemptions) (Scotland) Regulations 2010 be approved.—[Bruce Crawford.]
The questions on the motions will be put at decision time, at which we have finally arrived.
Members: Hooray!
Decision Time
The first question is, that motion S3M-7212, in the name of Gil Paterson, on the Standards, Procedures and Public Appointments Committee’s report on the draft revised code of practice for ministerial appointments to public bodies, be agreed to.
Motion agreed to,
That the Parliament agrees that the Standards, Procedures and Public Appointments Committee’s 6th Report, 2010 (Session 3): Draft Revised Code of Practice for Ministerial Appointments to Public Bodies in Scotland (SP Paper 491), together with the Official Report of the Parliament’s debate on the report, should form the Parliament’s response to the consultation by the Office of the Commissioner for Public Appointments in Scotland.
The next question is, that motion S3M-7268, in the name of Kenny MacAskill, on the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill, be agreed to. Are we agreed?
Members: No.
There will be a division.
For
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)
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)
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)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Sturgeon, Nicola (Glasgow Govan) (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)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Against
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)
The result of the division is: For 97, Against 18, Abstentions 0.
Motion agreed to,
That the Parliament agrees that the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill be passed.
The final question is, that Parliamentary Bureau motions S3M-7263 to S3M-7265, on the approval of Scottish statutory instruments, be agreed to.
Motions agreed to,
That the Parliament agrees that the Revised Code of Conduct for Councillors for the Ethical Standards in Public Life etc. (Scotland) Act 2000 be approved.
That the Parliament agrees that the Welfare of Farmed Animals (Scotland) Regulations 2010 be approved.
That the Parliament agrees that the Prohibited Procedures on Protected Animals (Exemptions) (Scotland) Regulations 2010 be approved.
That concludes decision time.
Meeting closed at 19:52.