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Criminal Justice in Scotland's Parliament
This part of the site is a weekly review of criminal justice business at Holyrood starting, in its present format, from September 2006. The page is supported by a grant awarded by the Clarke Foundation for Legal Education and is written by our Parliament correspondent, Katrina Morrison.
Glossary: 'Law Officers' = the Lord Advocate and the Solicitor-General for Scotland. 'SPICe' = Scottish Parliament Information Centre
It is possible to view Committee business on the 'Holyrood. TV' archive for up to a month following the date of the meeting.
Parliamentary Report for the 9th to the 13th of June 2008
Stage 2 of the Judiciary and Courts Bill was discussed in the Justice Committee and in the Chamber there were justice related questions for the First Minister.
The Justice Committee
Subordinate Legislation
Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2008 (Draft)
The Committee were joined by the Cabinet Secretary for Justice, Kenny MacAskill, to firstly consider a number of items of subordinate legislation.
The first draft order sought to amend legislation so that domestic law reflects what has been agreed between the US, the UK and the EU in relation to the the UK and the US ‘mutual legal assistance treaty which aims to improve co-operation and mutual legal assistance in the investigation of serious crime. Mr MacAskill said that there was concern that if the terms of the EU-US mutual legal assistance treaty are not implemented across the EU before the Lisbon treaty comes into force – which is planned for 1 January 2009 – the EU-US treaty will fall. The Committee agreed to the draft order without any questions.
Human Tissue (Scotland) Act 2006(Consequential Amendment) Order 2008 (Draft)
The second order sought to amend legislation in order to close a loophole that currently exists in the law which can be exploited by those involved in human trafficking. This draft order would ensure that no trafficking takes place for the purposes of organ removal. He said that, although there is currently no evidence of trafficking for the purposes of organ removal in Scotland, there was a need to ensure that the law is ready should it ever be broken.
Judiciary and Courts (Scotland) Bill: Stage 2
The Committee then began the Stage 2 consideration of the Judiciary and Courts Bill. This legislation seeks to modernise the way the judiciary operates, handing over the operation of the Scottish Court Service to the office of the Lord President, the most senior judge in Scotland. The Lord President will continue to undertake judicial duties, but his office will also now be responsible for the operation and running of all the courts in Scotland.
The Committee considered this Bill during Stage 1, and, although they were content with the broad intentions of the legislation, they raised a number of concerns in relation to a possible increase in the administrative burden placed on the judiciary. As a result of this, the Government commissioned an independent report on whether or not there would be a loss of judicial time were the proposals implemented, which concluded that as long as the measures will be phased in incrementally, the proposed legislation is justified.
At Stage 2 of a Bill’s process through Parliament, the Government takes on board concerns that were raised by the Committee, the Chamber, and returns to the Committee with their own amendments, and also to discuss amendments which the Committee and other MSPs have lodged. Although the real changes take place at Stage 3, this part of the process sheds light on the issues that will crop up further down the line, and give an indication to the Government of the amount of work it will need to do before the Bill can be presented again at Stage 3.
The Cabinet Secretary therefore remained with the Committee to discuss the amendments. Most of the debate in the meeting concerned, not over the principle of judicial independence should be enshrined or not, but over deciding exactly where the line between Government and the judiciary should be drawn, and the implication of this for the democratic accountability of what takes place within Scottish courts.
There were several groupings of amendments. Firstly, the principle of making the Lord President in charge of operating all the courts was discussed. The Government argue that this move will not only end the ‘fudge’ of the current situation whereby the Lord President is in charge of the High Court and the Court of Sessions, and Sheriff courts and Justice of the Peace Courts fall under the jurisdiction of Ministers, but it will also make the operation of all courts much more efficient.
While most members agreed this would indeed aid efficiency, there were a number of concerns. Cathie Craigie (Lab) felt that the responsibility for such a fundamentally important function of the state should remain with the Scottish ministers. Margaret Smith (LD) also felt that handing over so much power to the Lord President would result in a loss of accountability, and she argued that Parliament ought to retain the right to decide on matters such as deciding where the boundaries of the of sheriff court or JP court jurisdiction should lie. The Committee convenor, Bill Aitken (Con), sought to ensure that decisions, such as closing courts or opening new ones, could only be taken by the Lord President following consultation, and Paul Martin (Lab), argued that further evidence was required prior to Stage 3 before he could agree that the capacity of the Lord President’s office to take on so many extra powers. Pauline McNeill (Lab) argued that judicial independence does not need to stretch to include powers to take decisions that affected local communities, these decisions should be left to accountable politicians.
In response, the Cabinet Secretary argued that if the amendments were agreed to, then not only would a key strand of the Bill be undermined, but it would also mean that the way the courts are organised would remain unchanged from the way they were set up in the 1970s. He also pointed out that the Parliament will be involved in matters such as the closure of a court, through subordinate legislation, which will have to be agreed to by MSPs. He also agreed to Bill Aitken’s amendment which would require for a consultation to take place before major changes were made to sheriff and justice of the peace courts.
Nigel Don (SNP) and Margaret Smith both lodged a number of amendments in relation to judicial training, which had been a contentious issue during Stage 1. The Committee’s Stage 1 report said that public confidence would be greatly enhanced if training were compulsory, but there has been strong resistance from parts of the judiciary for any such compulsion, and the Government have so far been reluctant to insist for an element of compulsion to be put in the Bill. Margaret Smith said that her group of amendments sought to create a compromise, following correspondence received from the Lord President who intimated that he would be willing to accept mandatory training so long as there is no ministerial direction and that his office will retain the right to decide which areas of training will be mandatory. She said that, although it would remain at the discretion of the Lord President, the public would expect mandatory training on key issues such as the Vulnerable Witnesses (Scotland) Act 2004 and family law, and also that the judiciary would be trained early in respect of the implications of significant new legislation, such as the rape and sexual offences legislation that will be considered by Parliament shortly.
He agreed to hold discussions with Cathie Craigie (Lab) prior to Stage 3, in order to see if they could reach a compromise, and in return she withdrew some of her amendments. However, he agreed to her amendment which would give the Lord President discretion over which parts of training should be mandatory, as long as an element of compulsion remained.
Another contentious group of amendments related to whether or not the Lord President would be compellable to answer questions in the Parliament. Currently, the Scotland Act 1998 states that all judges are exempt from being compelled to appear before Parliament, though they can be asked and if they chose, they are allowed to answer questions. Several members of the Committee felt that, if the Lord President is to chair the Scottish Court Service (SCS), then he ought to be accountable before Parliament. The current Lord President has indicated that he would be happy to appear and answer questions should a ‘serious matter’ arise, but numerous concerns remained with the Committee. Cathie Craigie (Lab) wondered who would decide what was a ‘serious matter’, and she argued that the Government were in effect relinquishing their democratic power to a non-elected body. The Bill does provide for the Chief Executive of the SCS to answer questions before a Parliamentary Committee, but Margaret Smith (LD) also argued that there was a need to be able to ask the Lord President who sits as chair of the SCS, to either answer questions in Parliament or to produce documents. She also pointed out that, although the Lord President who is currently in post has co-operated with the Parliament, it is safer to make the change to the legislation should a future Lord President not be so co-operative.
The Justice Secretary was less conciliatory over this section than he had been over others. He argued that the whole point of enshrining the independence of the judiciary in statute was to formalise the tripartite separation of powers. He said that there was no point in creating an entity that sits half way between judicially led governance, and ministerial responsibility. He said that either the SCS should be created as a separate statutory entity with accountability to Parliament, or it should be retained as ministerial entity in which the judiciary can have no more than an informal advisory role.
He argued that the proposed governance of the SCS had been constructed carefully, and that although it will give it substantial authority, but it will also be subject to safeguards. For example, it will have a strong element of independent and non-judicial membership, and also be under a specific statutory duty to take account of the needs of the public and of court users, and to co-operate with the rest of the justice system. It will also operate within a plan that is agreed with ministers and a budget that is voted on by Parliament and it will have to account directly to Parliament for its actions via its Chief Executive. Furthermore, the Bill also provides that in the highly unlikely event that the SCS’s actions put the administration of justice at risk, ministers can seek parliamentary agreement to an order providing for control over the SCS’s functions to be taken back by the Government.
The members who raised concerns in this section of the Bill remained unconvinced however, and Kenny MacAskill was reminded that this is a minority Government, so he will have to do a substantial amount of work to allay the fears of opposition MSPs before he is able to rely on their votes. However, they agreed to withdraw this amendments prior to Stage 3 of the Bill, on the undertaking that the Cabinet Secretary meet with them to discuss these issues further in the mean time.
Other amendments on parts of the Bill relating to issues including the incapacitation of the Lord President, and the appointment of temporary judges, proved less controversial and were either agreed to or withdrawn with the full agreement of the Committee. However, many significant issues remain unresolved at Stage 2, and the Cabinet Secretary has his work cut out in seeking to persuade members to withdraw their amendments. However, Stage 2 really gives only an indication of the sort of issues that will arise at Stage 3, when amendments are voted on firstly by the Committee, and then by the Chamber, when the Bill will be finally passed. Stage 3 is scheduled to take place in September after the summer recess.
In the mean time, you can access all the documents relating to this Bill on the Judiciary and Courts (Scotland) Bill homepage
You can read the full transcripts of this meeting in the Official Report, and also watch it on Holyrood.TV.
The Chamber
First Minister’s Questions
Summary Justice Reforms
Annabel Goldie (Con) at FMQs said that the recently introduced summary justice reforms (whereby the number of crimes that can be diverted away from prosecution through the use of fixed penalty notice has increased), meant that ‘more criminals are not being prosecuted’. She also claimed that public confidence in the justice system is ‘haemorrhaging’ in light of recent headlines about unprovoked violent crimes. She said that, although she does not question the prosecutors’ right to discretion, she does question if this discretion is exercised appropriately. She quoted a letter in a national newspaper from a local group of solicitors, who claimed that the summary justice reforms have resulted in a range of charges, including indecent behaviour and lewd and libidinous conduct against children, not being put forward for prosecution, and she argued that his letter must highlight just the tip of the iceberg. She said that the increase in diversions from prosecution is a result of the Government’s ‘relentless drive to empty our jails’, and she concluded by saying that the criminal justice system exists to deter, punish and protect, and that it currently fails on all three counts.
In reply, Alex Salmond firstly commented that her question coincided with a press release from Bill Aitken, about the summary justice reforms, and he also pointed out that these reforms in fact received the support of the Conservative Party when they were passed during the previous session of Parliament. He said that the discretion that the Procurator Fiscal operates in the Scottish criminal justice system is the ‘envy of the world’, and he said that PFs are discharging their functions extremely well. He went on to suggest that the letter in the newspaper might be prompted by the fact that the recent changes to legal aid have meant that certain ‘well known groups of solicitors’ have had their legal aid funding cut, and he said it was wise to remember that some people may have vested interests in making the claims they do. In relation to crimes of violence, he said that there had been an increase in unacceptable violence and disorder in Scotland together with many other western societies, and that there has been a concurrent increase in prison overcrowding which the Government are now seeking to address. He then proceeded to list what he said were the failings in criminal justice that occurred under the Conservative Government during the 1980s and 90s, including creating automatic early release and not building any prisons, and he said that these facts ought to be remembered before the Conservative party poses itself as the ‘defender of justice’.
You can read this question in the Official Report
See also the press in the CJScotland Newsblog
“Concerns raised over enhanced fiscal powers of diversion following summary justice reforms”
Drugs and Alcohol Strategy
Later, there was a question from Nigel Don (SNP) which gave the First Minister the opportunity to talk about the Government’s recently announced drugs strategy, and the report into tackling drugs and alcohol published at the beginning of the week by Scotland’s Future Forum. Nigel Don quoted the aspirational target laid out by the Forum by asking what steps the Government are taking to reduce the damage caused by drugs and alcohol by 50% before 2025. He said that the Forum’s report highlights the needs to tackle the alcohol problem in Scotland which he said has grown over recent years, and he highlighted figures recently released by the Government which estimate that around £2.25 billion is lost to the Scottish economy each year through alcohol misuse.
In reply, Alex Salmond firstly outlined the main points of the Government’s drugs strategy (which was debated last week in Parliament), and he said that a consultation paper on how to tackle alcohol misuse will be published imminently. He said that he hoped that this issue would receive the degree of cross party support that the drugs strategy did.
A supplementary question from Dr. Richard Simpson (Lab) said that a number of voluntary organisations that help people with drugs and alcohol problems are being forced to issue redundancy notices because of a lack of money. He argued that it inappropriate that agencies are not only unable to secure three-year funding, but that they do not even have funding for this year. The First Minister replied that Dr Simpson should speak to the relevant cabinet secretaries about the specific agencies he referred to, and he also pointed out that the money announced as part of the drugs strategy has increased the spending in this area in comparison with previous central Government budgets.
You can read this question in the Official Report
See also the press in the CJScotland Newsblog
“Alcohol action plan to be announced on Tuesday”
“Scotland Futures Forum report on drugs and alcohol published”Domestic Abuse
Margaret Curren (Lab) also used her question to the First Minister to raise the issue of funding for voluntary sector organisations, in this case those who work with the victims of domestic abuse. The removal of ring fenced funding by central government and the shifting of funding structure towards ‘single outcome agreements’ has meant that agencies face a less certain stream of money, and there is more discretion about which local authority services each area chooses to prioritise. Ms. Curren said that women’s organisations are reporting a squeezing of services as funding is cut and projects are merged. She said that one local authority recently cut its post of domestic abuse co-ordinator, and she urged the First Minister to intervene to reinstate this service as it was much needed.
Mr. Salmond replied that this Government had increased funding to this area by 100% compared to the previous Administration, and he said that they have already committed support for the national offices of a number of women’s organisation. He said that the single outcome agreements, due for completion by the end of this month, will deliver a better service for women who are under threat throughout Scotland.
And you can read this question in the Official Report. You can also watch all of FMQs on Holyrood.TV.
Written Questions
Written Questions this week were on the subject of alcohol consumption both the connection between binge drinking and price of alcohol and what consultation the Government has undertaken with retailers in relation to alcohol policy; more questions about
alcohol, specifically, the availability of cheap alcohol in supermarkets and about underage drinking. Following concerns raised in the Chamber (see FMQs above) about the summary justice reforms, there were also questions about the training given to Procurator Fiscals about the Criminal Proceedings (Reform) Act 2007. There was a question about the amount of class A drugs seized, and about the number of firearm licences granted. There was a question about identity cards, and about the Stockline disaster. There was a question about the financial savings that would be acheived as a result of the summary justice reforms , and another question about the Stockline disaster. There was a question about police numbers and a number of questions about
prisons, including when the prison at Bishopbriggs will be ready for occupation, the design capacity and current population of all the prisons in Scotland, the numbers who have escaped or absconded, and more questions about prisons, including the involvement of prison contractors, and the number of prisoners who are drug dependent, and about the number of people convicted of wildlife crime
Posted by KM on Tue 17th Jun 2008 at 3:00 pm
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