Meeting of the Parliament

Meeting date: Tuesday, March 27, 2018

Official Report 793KB pdf

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Topical Question Time

The next item of business is topical question time. Before I call the question, I remind members that there are active legal proceedings concerning the European arrest warrant that was issued in relation to Clara Ponsatí; therefore, the sub judice rule is engaged and members should be careful to avoid mentioning details of the case or making comments that might be seen to influence proceedings.

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European Arrest Warrants (Enforcement)

To ask the Scottish Government what discussions it has had with other governments regarding the enforcement of European arrest warrants. (S5T-01010)

It is well established that the Scottish Government supports the right of the people of Catalonia to determine their own future. We profoundly regret that the Spanish Government has failed to engage in dialogue with Catalonia’s politicians and that, instead, the issue is now subject to the judicial process.

We have been in touch with the Spanish embassy today, and the Cabinet Secretary for Culture, Tourism and External Affairs will write to the Spanish ambassador to express the Scottish Government’s regret at the issuing of a European arrest warrant for members of the former Catalan Government and re-elected members of the Catalan Parliament.

The fact that our justice system is legally obliged to follow due process in the determination of extradition requests does not change those views.

However, the matter is now sub judice, and it is important that the Parliament respects that rule, which is designed to protect the integrity of the judicial process. Under the Extradition Act 2003, the Scottish ministers have no role in the determination of European arrest warrants. Our police, prosecutors and courts are independent, and they are legally obliged to fulfil their responsibilities under European Union and domestic law. The Scottish ministers have no powers to intervene in the process.

That said, the legal process includes the right of any individual who is subject to proceedings under the 2003 act to oppose their extradition in the courts, and it is vital that the integrity of that process is protected.

Enforcement of European arrest warrants is not a matter for the Scottish Government. Under the Extradition Act 2003, the Lord Advocate has a statutory responsibility to conduct extradition hearings on behalf of the requesting state. That function is an aspect of his independent prosecutorial function, and it is independent of ministers, who have no role in deciding on European arrest warrant requests. The decision on whether to order extradition is a matter for the courts.

Will the Scottish Government raise this use of the European arrest warrant with the European Commission?

I can inform the chamber that we have concerns about how the system of European arrest warrants is being used, and we will raise the matter with the European Commission in due course.

I should point out to members that the European legislation that established European arrest warrants makes it clear that it does not modify the obligation to respect fundamental rights and fundamental legal principles.

I appreciate the limitations on the Scottish Government to do or say much on any specific case, to ensure the integrity of the process, but will the Scottish Government restate its opposition to the actions of the Spanish Government in general terms in relation to the arrest and imprisonment of democratically elected Catalan politicians?

The First Minister has already said that it is time for dialogue to replace confrontation. As I mentioned, we profoundly regret the fact that the Spanish Government has failed to engage in dialogue with Catalonia’s politicians and that the issue is now subject to the judicial process. Through dialogue, a way forward should be found that complies with the rule of law but that also respects democracy and the right of the people of Catalonia to choose their own future.

There is a clear tension here. The Scottish Government says that it supports the arrest process, but it also says that Spain should not seek the arrest.

Previously, the cabinet secretary said that the arrest warrant means that Scotland is not viewed as

“a safe haven by those who seek to escape justice.”—[Official Report, 1 November 2016; c 14.]

At what point and in what circumstances would opposition in principle turn into opposition in practice?

First, I want to correct the mischaracterisation that the member made—not deliberately, I hope—in the course of his question. As a Government, we fully respect the due process of European arrest warrants, which is exactly what is taking place now. What we profoundly regret is the failure of the Spanish Government to resolve the matter through dialogue rather than through the judicial process. However, we now respect the fact that due process has been engaged as a result of a European arrest warrant being issued, and that process will happen.

The cabinet secretary pointed to the European arrest warrant system being about the integrity of the judicial process. Outside the specifics, as they may be, the European arrest warrant is an example of strong European co-operation that enables our judicial process to pursue criminals who do not necessarily respect national boundaries. Can the cabinet secretary update Parliament on how the United Kingdom’s withdrawal from the European Union and the loss of the European arrest warrant will impact on our judicial system, and whether there are plans for a successor arrangement?

First, I acknowledge the right of the people of Catalonia to self-determination and their right to do that within the rule of law. We encourage parties at Spanish Government and Catalan Government levels to seek dialogue in order to resolve the issues and ensure that the future determination of Catalonia is one that is agreed through mutual respect and dialogue, rather than confrontation.

However, there is strong value in the European arrest warrant system, which has been used in Scotland for a number of years. That system is at risk as a result of Brexit. As matters stand, it is unclear from the discussions that we have had so far with the UK Government what successor arrangements there will be, other than new extradition treaties.

The legal process is understood, but the law does not operate in isolation. The vile former South African regime and the vile current Israeli apartheid regime would both tell us that they acted legally at the time, so there must be a tipping point at which political intervention takes place. If a regime is mercilessly beating innocent and defenceless citizens, and jailing elected politicians, what is the tipping point for political intervention by the Scottish Government?

It is important to recognise the provisions in the Extradition Act 2003, particularly for European arrest warrants, because whether an individual is to be extradited will be determined by the courts, and there are a number of prescribed questions that courts must address. Among other matters, for example, extradition can be ordered only if a court considers that to do so is compliant with a person’s rights under the European convention on human rights. The courts must therefore be satisfied on a number of prescribed questions prior to making a decision on any European arrest warrant that is being contested, and a key part of that is ensuring that extradition complies with the European convention on human rights.

Does the cabinet secretary agree that concern about the issue is not limited to people who support Scottish independence? Clara Ponsatí, who is an academic at the University of St Andrews in my constituency, is at the centre of the major political disagreement in Catalonia. It should be the political democratic process that resolves that political disagreement, just as it did in Scotland in 2014. Does the minister agree that dragging the issue into the courts is not the long-term solution for Spain or Catalonia?

I am sure that Willie Rennie will accept that I cannot comment on the individual case because the sub judice rule now applies. However, I made it clear in my initial answer to Clare Haughey that we profoundly regret the fact that the Spanish Government has failed to engage in dialogue with Catalonian politicians, and that the issue has now found itself being part of a judicial process.

As the First Minister has stated, this is a time for dialogue rather than for confrontation. Such matters are best dealt with through dialogue, respecting the right of the people of Catalonia to self-determination within the rule of law. In my and the Government’s view, it is in the interests of all parties to seek dialogue that assists in achieving that, because that can prevent the need for matters to end up in the judicial process.

Thank you. I will call two more members, but be careful, because that question strayed quite close to invoking a particular case. The minister steered his way away from that, but members should just try not to comment on the actual case.

I think that members should be reminded that, after the October referendum vote, it was the Spanish Government that called for another vote, so people’s rights even to vote have been compromised by the actions of the Spanish Government. Will the cabinet secretary therefore join me in condemning the actions of the Spanish Government in its Europe-wide pursuit of elected Catalan politicians through use of the European arrest warrant? Does he agree that such methods must be pursued only for human rights issues and civil liberties?

The decision on the future of Catalonia is clearly a matter for the people who live there. As a democrat, I fully respect their right to self-determination and to choose the form of government that best suits their needs. That issue is not important just to me: it is enshrined in the United Nations charter.

As I mentioned earlier, it is important to recognise that the legislation that established the European arrest warrant mechanism makes it very clear that it does not modify the obligations to respect fundamental rights and fundamental legal principles. Those are matters that will be considered by the court in any individual case.

Does the cabinet secretary agree that countries that wish to make use of the European arrest warrant system should abide by the founding principles of the European Union, which are liberty, democracy and respect for human rights and fundamental freedoms?

I recognise the concerns that Ivan McKee has raised, which a number of other members have echoed in their questions. As I said in responding to Clare Haughey’s question, we will raise the issue of European arrest warrants with the European Commission. The European arrest warrant is, as I said to Daniel Johnson, a very useful tool, and we wish to see it being used in accordance with the legislation’s clear reference to fundamental rights and legal principles. We will pursue the matter with the European Commission, in due course.

I thank members and the minister for their forbearance in discussing this topical issue without straying into sub judice matters.