Convention Rights (Compliance) (Scotland) Bill
We are now 20 minutes ahead of schedule. The next item of business is a debate on motion S1M-1941, in the name of Mr Jim Wallace, which seeks the Parliament's agreement that the Convention Rights (Compliance) (Scotland) Bill be passed.
I thank members of the Parliament, particularly the members of the Justice 1 Committee, for the work that they have done on the Convention Rights (Compliance) (Scotland) Bill. I also thank all those who contributed to the work of the Justice 1 Committee with oral and written evidence.
The Executive has demonstrated its willingness to work with the Parliament to produce legislation that achieves its objectives and that is workable in practice. I appreciate the points that members have made during the debate and we have been happy to accept amendments that have resulted in improvements to the bill. Although I rejected one of Mr Matheson's amendments on remedial powers, it is absolutely appropriate that Opposition parties challenge the Executive—with amendments and provisions such as that one—to make it give its arguments as to why it seeks the powers that it seeks.
I would like to thank the officials in the justice department for their considerable help with the bill. We have seen in this afternoon's proceedings that these matters are not always straightforward and easy to deal with. The nature and complexity of the amendments are indicative of how much attention to detail is given by officials. I also thank the Deputy Minister for Justice, Iain Gray, for the work that he has done, not least at stage 2. As proper reward, he was allowed to make a concession to the Opposition—the only one that we made this afternoon.
I consider this to be an important bill. It gives us another opportunity to confirm our commitment to the European convention on human rights. It recognises the need to introduce amendments to our laws when we consider that we are at risk of challenge. By passing the bill, the Scottish Parliament will recognise the important place that the protection of human rights does, and should, take in Scotland.
The bill contains proposals on adult mandatory life prisoners, the appointment and removal of Parole Board members, legal aid, homosexual offences and the Lyon Court. It also introduces a new general remedial power.
The bill will bring the release arrangements for adult mandatory life prisoners into line with the arrangements that are in place for other life prisoners in Scotland—specifically, for under-18 murderers and for discretionary life prisoners. Those arrangements came into place, I think, in 1995 legislation. At the time, Mr Gallie was only too willing to support them. We believe that the proposals will satisfy the ECHR. I cannot accept the accusation that the release of dangerous individuals is imminent as a result. The important point is that life sentence prisoners will serve a period that satisfies punishment and deterrence. That period will be set by the judiciary in open court. That ought to give greater certainty not only to the prisoner, but to the families of the victims of crime.
The assessment of risk will be determined by an independent and impartial body with expertise in the area. I believe that it is wrong for ministers to take decisions about the length of time to be served by life sentence prisoners. Those decisions are properly taken by the judiciary and the assessment of risk will properly be made by an independent and impartial body. The result will be a more logical and transparent system. As I indicated, ministers have already been removed from having a role in relation to the release of under-18 murderers and discretionary life prisoners. The bill will ensure that adult mandatory life prisoners have their release determined in the same way.
In relation to the Parole Board, I undertook to provide draft appointment and removal regulations prior to stage 3. Those regulations were made available last week. The removal procedures follow closely the contents of the regulations that we introduced on part-time sheriffs. It is our intention to consult fully on the regulations before they are laid formally before the Parliament. I would certainly welcome comments from members.
On the extension of legal assistance, I undertook to provide the Justice 1 Committee with details by stage 3 of the bodies for whose proceedings we propose to make legal assistance available. Six bodies were consulted—the Office of Social Security and Child Support Commissioners, the Pensions Ombudsman, the Occupational Pensions Regulatory Authority, the VAT and Duties Tribunal, the unified appeal tribunals and the Special Commissioners of Income Tax. In addition, we consulted the Council on Tribunals, the Federation of Small Businesses, the Scottish Legal Aid Board and the Law Society of Scotland.
To avoid the risk of breaching article 6.1 of the ECHR, we consider that legal assistance should be made available where a court, tribunal or other body determines civil rights and obligations and certain clearly defined circumstances apply. I wrote to the convener of the Justice 1 Committee, Alasdair Morgan, last week to confirm that it is my intention to extend legal assistance in respect of two bodies—the Office of Social Security and Child Support Commissioners and the VAT and Duties Tribunal. I am still considering the position of the unified appeal tribunals and the Special Commissioners of Income Tax, as I have not yet received sufficient information from those bodies to enable me to reach a decision.
It is important to stress that no definitive position has been reached. I expect this to be an on-going process as ECHR jurisprudence develops. There may be other bodies in relation to which legal assistance should be made available. Some other bodies have been suggested in the consultation responses I have received and my officials will follow those up. I am happy to outline the reasons for the decisions if members would find that helpful.
There has been some debate this afternoon on the general remedial power, which I welcome, as it is an important issue. I need say little more than to confirm that the Executive considers that the power is essential, because our courts can immediately strike down Scottish legislation or functions of Scottish ministers that they find to be incompatible with the ECHR. We need a swift remedy. I emphasise also that there is no intention that the power should be a replacement for primary legislation and for full scrutiny by the Parliament. The amendment that was introduced at stage 2 in response to concerns expressed by members of the Justice 1 Committee, to ensure that there are compelling reasons for using the remedial order route, underlines that.
Part 4 of the bill deals with homosexual offences. It is important to bear it in mind that the changes that have been introduced were made as a direct result of a case in the European Court of Human Rights, which found that the equivalent English law—to which the Scottish law is identical—was incompatible with the ECHR on the ground that it breached article 8 on the right to respect for private life. Therefore, we have introduced a measure to bring Scots law into line with the ECHR.
Part 5 of the bill remedies an irregular arrangement in a 19th century statute that meant that the Lord Lyon appointed the procurator fiscal to his own court. The bill provides that the fiscal to the Lyon Court will in future be appointed by Scottish ministers as an independent third party. We were happy to accept a recommendation in the Justice 1 Committee's stage 1 report that the fiscal should be legally qualified and effect was given to that at stage 2.
In conclusion, the bill before Parliament contains proposals that are necessary in terms of the European convention on human rights, but there are other benefits. It is right to remove ministers from decisions about the release of adult mandatory life prisoners. The public will continue to be protected, but the process will be clearer and more logical. The inclusion in regulations of appointment and removal procedures for members of the Parole Board for Scotland will ensure that the system is fair and transparent. Our legal aid proposals will make justice more accessible when important decisions are being taken about child support, social security and taxation.
I want to see a system of justice in Scotland that is fair, open and transparent. The proposals in the bill accord with those principles and will help to further them. I commend the bill to Parliament.
I move,
That the Parliament agrees that the Convention Rights (Compliance) (Scotland) Bill be passed.
I begin by thanking the clerks to the Justice 1 Committee, who were of great assistance in lodging amendments at stages 2 and 3. I also wish to put on record my thanks to those who came before the Justice 1 Committee and took time to give us evidence, both orally and in writing.
As was outlined in the stage 1 debate, the Scottish National Party welcomes the general provisions of the Convention Rights (Compliance) (Scotland) Bill. Although the argument that the bill has been forced upon the Scottish legal system will not end as a result of the bill being passed, a considerable number of its provisions will enhance and improve the Scottish legal system. If it had not been for our incorporation of the European convention on human rights, we may not have had a debate about improving our criminal justice system in the way that the bill will improve it.
Congratulations should be given to those who decided, back in the 1950s, to sign up the UK to the ECHR. We should congratulate in particular the Conservative members of Parliament who supported the convention at that time and realised the benefits that it would have. I am sure that Conservative members of the Scottish Parliament will want to continue that tradition by supporting human rights in Scotland.
It would be naive of any member to think that the bill will draw a line under some of the conflicts that occur in our justice system or in legislation that does not comply with the ECHR. Two options are available. We can stick our head in the sand and ignore the issues or we can be more proactive and take up the challenge that the ECHR sets us to improve our system. The bill will do the latter.
I hope that the bill will be something of a watershed. Legislation that has dealt with ECHR-related matters, such as the Noel Ruddle mental health issue and the issues addressed in the Bail, Judicial Appointments etc (Scotland) Act 2000, has all been a result of potential conflicts and challenges. At least the Convention Rights (Compliance) (Scotland) Bill is more proactive and will make changes before problems occur. On that basis, it is to be welcomed.
A human rights commission is needed. It would augment the work that has been done with the bill.
I will conclude on a personal note. As the Minister for Justice said, the bill when passed will amend the Lyon King of Arms Act 1867 to transfer the power to appoint a procurator fiscal to the Court of the Lord Lyon to the safe hands of ministers of the Scottish Executive. I am sure that Scotland will be able to rest easy now.
The ECHR has an important role to play in Scotland and is important to the people of Scotland. The bill will enhance and improve the Scottish legal system. On that basis, the SNP will support the motion to pass the bill.
I speak with mixed feelings. Michael Matheson commented on Conservatives signing up to the European convention on human rights. We signed up to the principles and pursued them throughout the years, but we never felt the need to incorporate the convention into the law of our land. Therein lies the difference between other parties and us; it suggests that we were not in favour of incorporation. I repeat that our opposition was supported by several senior figures in the judicial system. [Members: "Name one."] Lord McCluskey. However, the bill is here and we have debated it.
The bill goes further than is necessary to comply with the ECHR. I make no apology for referring again to part 1. South of the border, Mr Straw has made it clear that ministerial responsibility will be retained for the release of those who are considered to be dangerous and violent criminals. He will have the final say. I return to the point that the minister made to the Justice 1 Committee this morning when he suggested that he wants to retain a veto over freedom of information. The minister should also have retained his veto over the freedom of extremely dangerous people in some circumstances. I am disappointed that the minister has pursued part 1.
The Conservatives support other elements of the bill. We go along with the idea that the Parole Board should be better constituted. That is an improvement. Michael Matheson suggested that he is glad that the bill has forced us into a debate, to improve Scottish law. I honestly believe that we could have designed a similar bill without the pressure of compliance. If the Executive had the will, we could have a debate at any time to address some of the serious justice and home affairs issues that face Scotland.
The bill contains provisions on legal aid. I regret the fact that part 4 must be enacted, but it is necessary to comply with the ECHR.
Michael Matheson made his joke about the Court of the Lord Lyon, to which the minister referred. The Court of the Lord Lyon has had two or three mentions during the passage the bill. Although it was necessary to include provisions for the court, that part of the bill does not register with people in Scotland.
Part 6 is the key element of the bill. We do not know what is round the corner and part 6 gives ministers powers to address any unforeseen ECHR problems. I am sure that, as a representative of the Executive, the minister will execute those powers soundly, just as any future Conservative minister would if they were to find themselves in such a position.
I thank the Deputy Presiding Officer for allowing us to debate the bill so freely. I also want to associate myself with the thanks that Michael Matheson expressed to the various people who helped the Justice 1 Committee. We will make our own judgment on the bill.
I rise to speak only briefly to give my total support for what we are doing, as most of what I want to say has been said by other members.
I do not understand Phil Gallie's point when he said that the Tory party never found the need to incorporate the ECHR, as the idea of becoming ECHR-compliant is a good thing. It is a sad thing that the Tories did not find the need to incorporate it, as the need was there for 18 years. We have come along and we have said that to incorporate the convention is the right thing to do.
However, we should not think that we are simply doing something because it has been forced upon us. Michael Matheson talked about the bill being "forced upon the Scottish legal system". I do not like that approach, as I have always said that what we do in this sort of bill is not something that is a bad thing that we are being forced to do. The provisions are in themselves good things and some of them hardly got a mention during today's stage 3 debate—for example, what we are doing with the constitution of the Parole Board for Scotland and how people are removed from the board. That is good legislation. Another example is bringing flexibility into payment for solicitors. That is also good legislation.
I disagree very strongly with Phil Gallie over what he said about part 1 of the bill, which covers how we deal with life prisoners. It is absolutely right in principle that the politicians, God bless them, should be taken totally out of the process. Phil Gallie says that Jack Straw will not take the politicians out of the process. I say to him that Jack Straw is wrong on that. On matters that relate to the bill, his writ does not run in this chamber. That is devolution working, and that is how devolution ought to be. I do not apologise for saying that. Politicians under political and media influence have kept people in jail when a proper judicial decision would have been that their time was served and they should be released. That is a disgrace. I say to Phil Gallie that we are moving forward in a proper manner in that respect.
I accept Mr Jackson's opinion on the matter, but does he not agree with me that what we are debating is really the European convention compliance bill? Does he also agree that Jack Straw stepping back demonstrates the point that that issue does not need to be covered by the Convention Rights (Compliance) (Scotland) Bill? If it is the will of the Scottish Parliament, I accept that that is a fair way to take the matter forward.
I do not accept that. No doubt Jack Straw gets his advice from his officials. Time will tell whether that advice is right or wrong. We are taking politicians out of the process to comply with the ECHR, but I say again that we are doing it because it is the right thing to do. We do not believe that politicians should any longer be a part of the process of sentencing. I am totally in disagreement with Phil Gallie on that issue.
The great thing about the bill is that it shows that the committee system is working. The Justice 1 Committee has had a lot of discussions and debates. They have been extremely constructive. Even Phil Gallie will at times admit that we have had extremely constructive debates and that we have made real changes to the bill through the committee system. What we did in terms of compelling reasons for remedial powers was an important change to the bill. It showed the willingness of the Executive to take on board informed, sensible discussion and change the bill. We started with a good bill. We have ended with a better bill. If people in another place do not want to follow that example, that is a matter for them, but we are not apologising. I commend the legislation to the chamber.
I take the opportunity to thank the members of the Justice 1 Committee and the Parliament for their careful consideration of the Convention Rights (Compliance) (Scotland) Bill. I agree with Gordon Jackson—what we have in front of us is a solid, workable piece of legislation that will continue to ensure that Scotland is a place in which human rights are respected and protected.
We have debated the roles of Winston Churchill, through signing the United Kingdom up to the ECHR, and Westminster, through the Scotland Act 1998, which incorporates human rights into our legal system. That is the important thing, I say to Mr Gallie. It allows the principles that were signed up to in the 1950s to be exercised in Scottish courts and the Scottish legal system. It has not always been the most exciting legislating that we have done, but it is important. It is time to stake the Parliament's place in the history of human rights in Scotland. I commend the bill to the chamber.