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Title    : Scottish Parliament: Committees: Justice 2: Official Reports:
Meeting 7, 2003
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Text

Session 1 (2003) 
Scottish Parliament
Justice 2 Committee
Official Report 
Meeting No 7, 2003 

--------------------------------------------------------------------------------
 
18 March 2003 
CONTENTS

Tuesday 18 March 2003


JUSTICE 2 COMMITTEE 7TH MEETING 2003, SESSION 1
 
SEXUAL OFFENCES BILL
SUBORDINATE LEGISLATION
Births, Deaths, Marriages and Divorces (Fees) (Scotland) Amendment
Regulations 2003 (SSI 2003/89)
Sheriff Court Fees Amendment Order 2003 (SSI 2003/97)
LEGACY PAPER
PETITIONS
Asbestos (PE336)
Paedophiles (Sentencing) (PE490)
Fishing Industry (Fixed Quota Allocations) (PE365)
Judiciary (Freemasons) (PE306)


JUSTICE 2 COMMITTEE
7th Meeting 2003, Session 1

CONVENER

*Pauline McNeill (Glasgow Kelvin) (Lab)

DEPUTY CONVENER

*Bill Aitken (Glasgow) (Con)

COMMITTEE MEMBERS

*Scott Barrie (Dunfermline West) (Lab)
*Mr Duncan Hamilton (Highlands and Islands) (SNP)
George Lyon (Argyll and Bute) (LD)
Mr Alasdair Morrison (Western Isles) (Lab)
*Stewart Stevenson (Banff and Buchan) (SNP)

COMMITTEE SUBSTITUTES

Roseanna Cunningham (Perth) (SNP)
Lord James Douglas-Hamilton (Lothians) (Con)
Donald Gorrie (Central Scotland) (LD)
Dr Sylvia Jackson (Stirling) (Lab)

*attended

WITNESSES

Alison Coull (Office of the Solicitor to the Scottish Executive)
Sharon Grant (Scottish Executive Justice Department)
Hugh Henry (Deputy Minister for Justice)

CLERK TO THE COMMITTEE

Gillian Baxendine

SENIOR ASSISTANT CLERK

Irene Fleming

ASSISTANT CLERK

Richard Hough

LOCATION

The Chamber
 
--------------------------------------------------------------------------------
 
18 March 2003 
Scottish Parliament

Justice 2 Committee

Tuesday 18 March 2003

(Morning)

[THE CONVENER opened the meeting at 11:04]

The Convener (Pauline McNeill): Good morning everyone and welcome to the
final meeting of the Justice 2 Committee. As usual, it would be helpful if
members could switch off their mobile phones and pagers before we begin.

I have only one item to report. The Scottish outdoor access code resulting
from the Land Reform (Scotland) Act 2003 is now up for consultation. I
believe that there are already some differences about the access code.
Although members will be busy with other matters, they may wish to keep an
eye on the consultation period. Any new committee should come back to the
issue to ensure that the access code reflects the detailed analysis that
the committee gave as well as the assurances from the minister about how
the act would operate. I put that on record.

Sexual Offences Bill

The Convener: The committee will examine the Sexual Offences Bill, which
the United Kingdom Parliament is considering. I welcome Hugh Henry, the
Deputy Minister for Justice, and his officials.

As usual, committee members have a note that the clerks have prepared to
accompany the Executive memorandum, which sets out the Executive position
on the bill. The deputy minister will make an opening statement, which will
allow the committee to hear about the measures. He will then answer any
questions that the committee may have.

The committee will be aware that standing orders do not set out a formal
procedure for the consideration of Sewel motions. Once the committee has
taken its evidence, it may report its conclusions to Parliament in advance
of the Parliament considering the motion this Thursday.

The Deputy Minister for Justice (Hugh Henry): I am sure that we are all
aware of the significance of the issue that we are debating today. The
registration of sex offenders is clearly an issue that concerns the public,
who want to be assured that appropriate measures are in place. We are
attempting to improve the way in which the police keep track of convicted
sex offenders, which will assure the public. The proposed measures will
improve our ability to monitor the whereabouts of convicted sex offenders
and will strengthen our ability to protect children and other potential
victims from the risk that sex offenders can pose.

We know that the public are understandably concerned about the menace of
sex offenders and the wider risks that such offenders pose. The Executive
and our Westminster counterparts have acted quickly to introduce safeguards
where the need to strengthen the sex offenders register has been
highlighted. As far as is practically possible, we have sought to do that
across the UK as a whole.

We know that sex offenders can be adept at avoiding detection and
circumnavigating the public protection and community safety restrictions
that we have placed on them. Sex offenders are no respecters of their
victims, and they are certainly no respecters of the differing criminal
justice systems that apply in the UK and, indeed, in different parts of the
world.

Several important measures to strengthen the sex offenders register have
already been introduced in the UK. Those measures respond to public concern
about the dangers that sex offenders pose following the tragic death of
Sarah Payne. The measures were contained in the UK Criminal Justice and
Court Services Act 2000 and more recently in the Police Reform Act 2002.

Both of those were the subject of Sewel motion debates on 5 October 2000
and 26 June 2002 respectively. The Scottish Parliament supported measures
that included increasing the maximum penalty for failure to register from
six months' to five years' imprisonment. Following a particularly difficult
case in which a dangerous sex offender was convicted in England but moved
to Scotland, we took steps to ensure that the mutual recognition of sex
offender orders was respected across the UK.

The further measures that we now propose to introduce will strengthen
arrangements in a number of areas that were highlighted in the Home
Office-led review of the Sex Offenders Act 1997. The Scottish Executive was
actively involved in that review between June 2000 and July 2001.
Improvements will address concerns that notification by post does not
enable the police to know that the offender is in their area; that the
period of 14 days to register a change of address is too long; that the
onus is on the police to ensure that the offender is still at the
registered address rather than on the offender to ensure that they keep the
registered information up to date; and that itinerant offenders can evade
registration. Such concerns are undoubtedly valid and our proposals to
address them are sensible.

We also mean to tackle the sexual exploitation of children wherever it
occurs. Currently, the courts do not have the power to stop an individual
who has been convicted of sex offences against children travelling overseas
for the purpose of activities that involve sexual harm to children. We
believe that that is wrong and so we propose measures that will prevent sex
offenders from travelling overseas in certain circumstances. Clearly, the
court would have to be satisfied that certain conditions had been met
before such a measure was taken—for example, that the offender's
behaviour posed a high risk to children abroad—but it is important that
the power is there for the courts to act if necessary.

Through regulations, we intend to tighten the arrangements for the
notification of foreign travel by registered sex offenders. The Scottish
Parliament will have a further opportunity to debate those measures when
the regulations are made. We also intend to introduce a new order to make
those who have been convicted of sex offences overseas register when they
come to the UK.

There are a number of measures through which we propose to take a different
approach from that of the Home Secretary. In 2001, the expert panel on sex
offending submitted to ministers its report entitled "Reducing the Risk:
Improving the response to sex offending". The report made 73 wide-ranging
recommendations, which form a cohesive framework for the management and
supervision of sex offenders. The recommendations covered community and
personal safety, risk assessment, access to personal change programmes,
housing and information management. It also dealt in detail with
strengthening existing monitoring, which is the subject of this Sewel
motion.

The expert panel's recommendations strengthen the notification provisions
of the Sex Offenders Act 1997 in relation to offences that are committed in
Scotland. They extend the notification requirements to sex offenders who
are convicted of specific offences—abduction with intent to rape, assault
with intent to rape or ravish and indecent assault—not just when the
victim is under 18 or the offender was sentenced to at least 30 months, as
is presently the case. Also, where an offender is convicted of any offence
that does not carry an automatic notification requirement, but where the
evidence discloses that there was a sufficiently significant sexual element
to the offender's behaviour to warrant additional measures to protect the
public from serious harm, they require that the court should have
discretionary power to order notification.

Those provisions recognise that persons who commit serious offences against
victims of any age or where there is a significant sexual element should
not escape the notification requirement. It is preferable to legislate in
accordance with the expert panel's recommendations. Doing so will mean that
the courts can examine the sexual element of the crime at the time of
trial. In England and Wales, the approach is to list specified offences
that allow the courts to examine sexual behaviour. Both approaches are
directed at the same ends, but we believe that the Scottish approach better
fits with our common law traditions and the approach that the courts take
in Scotland.

Scotland has benefited not only from the findings of the joint review of
the legislation, but from the recommendations of the expert panel on sex
offending, which considered closely the operational issues facing the
criminal justice system in Scotland in managing and supervising sex
offenders.

Indeed, the Parliament has already recognised the importance of
strengthening the system in recently passing the Criminal Justice
(Scotland) Bill, which will introduce—also as a result of expert panel
recommendations—provisions to improve the information that is available
to the courts in sexual offence cases. Before passing sentence in
indictment cases or cases where offences involve a significant sexual
element, the court will be required to obtain reports, including a
psychological assessment.

The provisions that are contained in the Sewel motion build on that
approach. I hope that the committee will be minded to support it.

The Convener: If the judge decides that there is a significant sexual
element, will the judge determine whether the person will be registered on
the sex offenders register?

Hugh Henry: Yes.

Stewart Stevenson (Banff and Buchan) (SNP): I listened carefully to what
the minister had to say and I want to raise a range of issues with him. The
first issue is a matter of principle. I understand that the second reading
of the Sexual Offences Bill took place in the House of Lords on 13
February. That begs the question: why are we discussing the subject for the
first time on 18 March? If it was valid for the House of Lords to have a
second reading more than a month ago, has it suddenly become invalid today?
The minister might want to deal with that issue before I move on.

11:15

Hugh Henry: I did not follow your question. What did you mean when you said
that it had "become invalid today"?

Stewart Stevenson: I am in a quandary about why we are being asked to grant
to the Houses of Parliament at Westminster the right to deal with a
Scottish issue, when it is manifest that they are already in the course of
doing so.

Hugh Henry: That might be their procedure for dealing with the bill, but we
have the opportunity to make our comment. We believe that we are taking the
right way forward. Although there will always be timetabling issues, which
mean that consideration cannot coincide perfectly, it is best to progress
on a United Kingdom basis. We acknowledge that some of the issues to do
with the crimes that are involved often arise on a UK basis.

Stewart Stevenson: I am not debating that issue—we could debate it, but I
do not intend to spend much time on it. My point is simply that, if the
House of Lords has had the second reading and so is already engaged in the
process of considering the bill, in practice, have not we missed
significant opportunities, because of the relationship between the
timetabling of our deliberations and the timetabling of consideration at
Westminster?

Hugh Henry: We still have the opportunity to influence the process, because
the measures will be subject to committee consideration at Westminster. We
will be able to influence what comes out of committee at that stage.

Stewart Stevenson: I am grateful for that.

Let me move to the substance of my questions. In your opening remarks, you
made the point that we wish to deal with the matter in Scots law through
the common law and the definition of offences. I suspect that my colleagues
would agree with that. On page 71 of the bill, schedule 2 provides
specifically for a list of offences in Scotland. That list is rather
different from the list of offences that we have incorporated in the Sexual
Offences (Procedure and Evidence) (Scotland) Act 2002 and the Criminal
Justice (Scotland) Bill. Will we have the opportunity to delete that list,
given that you wish to rely on the common law, or to align it with the
lists that have been used in legislation that the Scottish Parliament has
passed in very recent times?

The Convener: The minister is considering his answer. Members of the
committee do not have the list in the bill.

Stewart Stevenson: I have it here.

Hugh Henry: The way in which we are approaching the issue is to extend the
coverage of offences with a significant sexual aspect in line with the
recommendations of Lady Cosgrove's expert panel on sex offending. We do not
propose to delete anything from the bill.

The Convener: I think that the member's concern is that the list looks like
a statutory list, such as would be compiled in England and Wales, which
might negate our principle. We would prefer to rely on the common law and
do not see a need to list the sexual offences.

Hugh Henry: That is a moot point. The committee has made some helpful
recommendations, which we are trying to reflect, along with the concerns
that the committee has expressed. We believe that this is the most
appropriate way in which to do that.

Stewart Stevenson: Nonetheless, there is a dichotomy between the argument
that you are deploying in support of the use of a list in schedule 2 to the
Sexual Offences Bill that is before the House of Lords and your opening
remarks, which referred to common law.

Essentially, it is part 2 of the bill that will apply to Scotland. I do not
pretend to have read all 100 pages of the bill in detail—I have read only
the parts that I have been told apply to Scotland—so I am prepared to
have any shortcomings in my study of the bill drawn to my attention, but at
the beginning of part 2, the bill states that a person is subject to a
notification order if

"he is convicted of an offence listed in Schedule 2".

The list is on page 71, in schedule 2.

Not only might that list be incomplete or extend beyond what is in common
law; in certain respects—specifically in respect of offence 51, which
relates to homosexual offences—it deals with those offences in a
different way from other recent legislation. I recognise from the
minister's opening remarks the fact that we have the opportunity to change
the bill through input from ministers and the Scottish Parliament.
Nevertheless, I am concerned that the bill as it is presently drafted deals
with offences in a very different way from other recent legislation.

The Convener: Let us be clear that other committee members—including
me—understand what you are talking about. You are saying that you would
prefer not to have a list of offences because, as it is constructed, it
appears to be trying to list every possible sexual offence; whereas we
could simply refer to the common law of Scotland when there is a serious
sexual element to an offence. You are saying that, given the fact that the
judge—who knows the law in Scotland—will decide anyway, there is no
requirement for the bill to be constructed in that way. Is that correct?

Stewart Stevenson: I am minded to accept what you have just said. I have
not done sufficient work to come to a firm conclusion on the matter, but I
would prefer the reference to be to the common law. My simple point is that
there appears to be a conflict between what the minister said and what the
bill says. I seek to clarify which direction the minister will choose to
take in his advice to parliamentary colleagues.

The Convener: I did not say that there is a contradiction. I think that we
might be talking about different things. That is your question.

Stewart Stevenson: As I said, the minister can perhaps put me right.

Hugh Henry: The bill attempts to incorporate what is already in the Sex
Offenders Act 1997, which lists offences in Scotland. Paragraph 2(1) of
schedule 1 to the 1997 act states:

"This Part of this Act applies to the following sexual offences under the
law of Scotland, namely-

(a) the following offences-

(i) rape;

(ii) clandestine injury to women;

(iii) abduction of a woman or girl with intent to rape;

(iv) assault with intent to rape or ravish;

(v) indecent assault;

(vi) lewd, indecent or libidinous behaviour or practices;

(vii) shameless indecency; and

(viii) sodomy".

The list is a restatement of what is already in legislation and reflects
the 1997 act. The 1997 act contains two separate lists of offences,
recognising the differences in law in different parts of the United
Kingdom. We are attempting to get the best of both.

The Convener: You have given us an explanation of the list. It is for the
committee to comment on whether that is the way in which the bill should
proceed.

Stewart Stevenson: I have one final point. I accept the minister's
comments. Will he add to the list of offences the traffic in prostitution
offence that was introduced under section 20A of the Criminal Justice
(Scotland) Bill, which we have just passed?

Hugh Henry: I do not think that that would be listed, but I will take
advice.

The Convener: We will have to come back to that point because I have a
question on whether a judge would consider that to be a serious offence. I
worry about whether a judge should have that level of discretion.
Prostitution could become a sexual offence if we say that it should. I
would like to explore that point later, which will answer the question
about whether prostitution should be on the list.

Bill Aitken (Glasgow) (Con): The problem is that no list can ever be
totally exhaustive. I will propose a scenario that could occur and that is
not covered by the list or by the bill as drafted. Let us suppose that
there was a serious breach of the peace in which there was a clear sexual
element—for example, a man exposes himself to a woman in a confined area,
utters threats but does not touch her or assault her in any way. That could
be indicted as a breach of the peace. As the bill stands, that is not
included on the list, when arguably it should be.

Hugh Henry: That is one of the things that Lady Cosgrove considered. We are
proposing to address that issue.

Bill Aitken: As I see it, what you are proposing does not cover that
scenario because the list does not cover it. If such an incident were dealt
with under the common law of Scotland, there would be no difficulty.

Hugh Henry: We are proposing that, where evidence given in court suggests
that there is a serious sexual element to the offence, the judge can decide
to take account of that factor. The list is not exclusive, because it still
gives discretion to the judges. We clearly intend to implement Lady
Cosgrove's proposals.

Bill Aitken: That is inconsistent. Surely the safest way of getting round
the issue is not to have a list. Such matters should be considered in
relation to the common law, which is all-inclusive. That would prevent
anything from falling into the spaces.

Hugh Henry: The situation that you have described is not covered by the
bill, but it will be included after the committee stage. The issue will be
addressed. There is a clear intent to cover the point that you have made
and the powers will be given to the judges.

Mr Duncan Hamilton (Highlands and Islands) (SNP): That does not make any
sense to me. You say that there is an intention to deal with the issue at
the committee stage. How can you know what is going to happen at that stage
or that the issue will be addressed?

Hugh Henry: The technical procedure for dealing with it will be through an
amendment.

Mr Hamilton: I understand that. However, the nature of amendments is that
one has no idea how they will end up.

Hugh Henry: That is always an issue when we are dealing with bills.

Mr Hamilton: So how do you know that the issue will be addressed?

Hugh Henry: We have agreed proposals that will be brought forward in that
way.

The Convener: For the purposes of this discussion, the committee is
perfectly entitled to relay its view to the minister and report to
Parliament. We might have to take some advice.

I can see that the Executive has been consistent in terms of the Sex
Offenders Act 1997. However, it might be that the 1997 act is wrong and
there is no need to construct a list of offences given that we are ensuring
that judges can exercise their discretion and that such offences can be
dealt with under the common law of Scotland anyway. The situation gets
dangerous when we try to list all the offences, as something might be
missed off the list. The committee can determine those issues in its
report.

Hugh Henry: There are two separate issues. One is Bill Aitken's concern
about whether the judge will have the power to determine whether, for
example, there was a serious sexual element in a breach of the peace case.
We believe that that will be addressed. The separate, more fundamental
issue is whether a list of offences should be prescribed in a way that is
not entirely consistent with common law. I would be worried if, in passing
the new legislation, we were to try to change the Sex Offenders Act 1997 by
reducing some of its provisions. I am worried that that could result in a
weakening of powers, when we are attempting to strengthen the law.

11:30

The Convener: I do not think that we are at odds with you on what you want
to do. The question is how it should be done. I suggest that the committee,
even at this late stage, might want to take advice. We know what we would
like to do and perhaps we need to take advice on how we can achieve it.
Presumably judges either know what the common law is or they have a list
themselves. The question is whether such a list ought to be in the
legislation. If something is missed off, we would have to keep adding to
the legislation, but if the legislation just refers to the common law,
everything is covered. If the judge has discretion to determine whether he
should refer to the sex offenders register an offender who has committed
any common-law offence with a serious sexual element, we would be achieving
the Executive's aims anyway.

Hugh Henry: If we did that, we would not just be talking about the bill; we
would be moving on to consider whether we should strike down, by whatever
means are available to us, the list contained in an existing piece of
legislation because we do not believe that that list is appropriate. I
remain to be persuaded that that would be an appropriate way of
proceeding.

The Convener: I do not think that we would be striking down the 1997 act.
We might just be saying that, in future, we would prefer such matters to be
dealt with without there being a list, although the 1997 act would
obviously remain as it is. I feel that I need to think about the issue.

Mr Hamilton: In answer to a question on how our deliberations fit in with
what is happening in Westminster and why we are discussing the bill after
it has been agreed to in principle, the minister quite properly said that
there is an opportunity for us to influence the legislation, to tease it
out and to see how it looks in a Scottish context. Is not there an argument
that that is precisely why, post devolution, the legislation should have
come to this committee?

Let us look at the package of measures as a whole, and let us assume that
we want to achieve the same thing and ensure that it is sensitive to the
Scottish position. Would not there have been an argument for including
those provisions in the recent Criminal Justice (Scotland) Bill, on the
basis that it was a miscellaneous bill anyway, or as near as damn it? The
question is why the package as a whole was not brought forward then.

Hugh Henry: Technically, it could have been considered then, but one of the
reasons why there was a delay was that we wanted to await the outcome of
the Home Office review. The timetable for the Criminal Justice (Scotland)
Bill did not fully allow us to do that. Duncan Hamilton is right that, in
theory, we could introduce our own legislation, by appending it to some
other bill or by creating our own specific legislation, but there are a
number of constraints, including timetabling.

In principle, we could decide to introduce our own legislation in the next
session of Parliament, but that could lead to a situation in which a
stronger set of measures was available in England and Wales than was
available in Scotland. That could happen if we were to have a delay, but
there is nothing in principle to prevent the Scottish Parliament from
saying, even at this stage, that it wants its own legislation. However, we
believed that it was not practically possible to introduce such provisions
on the back of the Criminal Justice (Scotland) Bill.

Mr Hamilton: Lady Cosgrove's recommendations were published in 2001. It may
have been decided that it was best to wait for the Home Office
consultation, but I am not sure what more that was supposed to achieve. If
the Executive thought that that was the right thing to do, that is what it
should have done.

Hugh Henry: To do what?

Mr Hamilton: What we are just about to do.

Hugh Henry: As I said, we wanted to wait for the outcome of the Home Office
review. Convener, would it be possible to bring in some of the officials
who have been more closely involved with this issue?

The Convener: We are just trying to do what we have been asked to do, which
is to scrutinise something that is before us, so that would be helpful.

Sharon Grant (Scottish Executive Justice Department): In answer to Duncan
Hamilton's question about our falling behind in waiting for the Home Office
review, I would point out that the review was a joint review between the
Scottish Executive and the Home Office. The recommendations in Lady
Cosgrove's report came out shortly before the consultation took place on
the joint review. As a result of the joint review, some of the
recommendations in Lady Cosgrove's report were not taken forward, because
the recommendations that came out of the joint review were better, to put
it bluntly. That is why we have delayed the remainder of Lady Cosgrove's
recommendations.

Additionally, the timetable for review of the Sex Offenders Act 1997
slipped, because the Home Office decided that it needed to have a complete
review of sex offences. It then amalgamated its proposals for what became
the Sexual Offences Bill with the review of the Sex Offenders Act 1997. By
that time, the timetabling was too late for the Criminal Justice (Scotland)
Bill. Again, we wanted to avoid causing any gaps in registration
requirements north and south of the border, which is why we are asking for
a Sewel motion to be able to take the measures through Westminster.

Mr Hamilton: It strikes me that, even though the second part of the delay
that you describe was nothing to do with the Scottish Executive or the
Scottish Parliament, it will nonetheless impact on whether the legislation
gets the scrutiny here that it deserves. On scrutiny, you said that the
bill would be referred to a committee. To which committee will it be
referred?

Sharon Grant: As far as I am aware, it will go through the Westminster
process. Officials have agreed with Home Office officials to amend our
Scottish schedule to the Sex Offenders Act 1997.

Mr Hamilton: In terms of the scrutiny, do we know to which committee the
bill will go?

Sharon Grant: It will have to go through parliamentary scrutiny, but I will
have to take solicitor's advice on that.

Hugh Henry: I do not know off hand to which Westminster committee the bill
will go, but we can find that out.

Mr Hamilton: I would be interested to know the level of Scottish
representation on the committee and how seriously the scrutiny will be
taken by that committee, because I am willing to bet my last buck that some
of the perfectly valid issues that have been raised by this Scottish
parliamentary committee will not be raised by another committee.

Hugh Henry: The committee stage will be taken on 24 March by a House of
Lords committee on the floor of the chamber, as far as I know.

Mr Hamilton: I have another point, which picks up on something in the
Executive memorandum on Sewel motions generally. The enshrined principle is
that the UK Parliament will not normally legislate on devolved matters, yet
the Executive memorandum states:

"the policy of both the Scottish Executive and the UK Government has
consistently been, so far as possible, to legislate for sex offenders on a
UK basis."

In other words, the principle in this policy area is to go exactly against
the general principle of Sewel. For the record, I take it that, as a matter
of policy, the Sewel convention is suspended when it comes to sex
offences.

Hugh Henry: No. We still have the right to legislate appropriately—

Mr Hamilton: I am interested not in the right, but in the practice.

Hugh Henry: We will operate pragmatically. We will do whatever gives the
best safeguards to members of the public and whatever affords the strongest
possible measures to deal with sex offenders. If, pragmatically, that comes
as a result of legislation being considered at Westminster, we will take
that opportunity. If, however, we believe either that that is insufficient
or that the timing is not right for us, we will legislate in our own terms
as appropriate.

The issue is about getting the best of both worlds. It is not about having
a policy decision that the convention will be suspended for sex offenders
or that sex offence issues will be treated any differently. We would look
to ensure that there is consistency UK-wide, simply because we have already
seen high-profile cases of people moving from one jurisdiction to another.
If we believe that something needs to be done here to give us either
additional or stronger powers, action will be taken.

The Convener: I do not have a policy difference with the Executive on that,
but I do not know about other members. The committee needs to understand
the route by which it might relay to ministers and, in turn, to the
relevant Westminster committee our concerns about the presentation of our
common-law position. We are rehearsing what we have said before, but that
is what we need to work out.

I want to discuss the discretion that would be given to judges. Stewart
Stevenson asked whether the new human-trafficking offence would be included
on the list. How would you expect a judge to interpret that kind of
provision or do you take no view at all?

Hugh Henry: To some extent, we could be talking about different things. We
have already introduced additional powers to deal with people who are
involved in the trafficking of women for the purposes of sexual
exploitation. What we are talking about here are offences against women
that are specific to individuals—the judge would have the discretion to
determine whether a specific act was of a sexual nature and required the
individual to be registered.

I do not think that the trafficking of women would necessarily have been
considered in relation to listing. However, I presume that, if something in
the charge were sufficient to give the judge a concern that the individual
should be registered, there would be nothing to prevent the judge from
registering the individual as a result of what they heard. We have said
clearly that such discretion would be available to the judiciary.

The Convener: Should this not be a policy matter for politicians rather
than judges? There is a case for saying that there might be a serious
sexual element to organising human trafficking and exploiting women for the
purposes of prostitution.

Hugh Henry: We should cast our minds back to some of the discussions that
we had on the Criminal Justice (Scotland) Bill. The offence could cover a
wide range of people. It could technically cover the van driver who was
driving women between different locations; it would be for the judge to
decide whether the van driver was a threat or a menace to women for the
purposes of registration for sexual offences. The driver would have
committed an offence in relation to the trafficking of women for the
purposes of sexual exploitation, but may not, in the opinion of the judge,
be a sufficient risk to a woman to be on the register.

I would not want to diminish the value of the register by requiring in
statute that everyone loosely associated with that activity should be
placed on the register. That would make the job of the police horrendously
difficult. In the eyes of many people, it would start to diminish the value
of the register. It might send a strong warning to those involved
peripherally in the trade of women, but we are talking about two different
things.

The Convener: What you are saying makes sense. I just wonder whether the
issue should be a matter of policy or a matter for judges. I will have to
give that further thought. I will allow a few more minutes for questions.

Bill Aitken: How many people are currently on the register?

Hugh Henry: The figure that I have at the moment is 1,794.

Bill Aitken: Since when has the system been operating?

Hugh Henry: Since September 1997.

Bill Aitken: I notice that the police are given powers to check
fingerprints and to take a photograph each time that there is a
notification. Those registering require to confirm their details annually.
Would it not be a safeguard to ensure that a photograph is taken at every
annual re-registration, given the way in which people's appearances can
change, either by accident or by design?

Hugh Henry: I am advised that that could be done.

Scott Barrie (Dunfermline West) (Lab): In your introduction, you talked
about the registration of people who have committed sexual offences abroad
and come here. What would be the procedure, given that not every country
has a similar system to ours? What may be deemed to be a sexual offence in
this country may not be an offence in another country and vice versa. How
would the system work?

11:45

Hugh Henry: Clearly, there are some difficulties, not least the fact that
we probably have a more advanced and stronger system for dealing with this
issue than most other countries do.

UK citizens who commit sexual offences abroad will be delivered back to the
UK authorities and we will be notified when they arrive. If a UK citizen
were deported from Canada, Australia or the United States, it would be easy
for us to identify them at the point of entry and to make the appropriate
arrangements.

It is more difficult to deal with people who have been convicted and who
take advantage of the freedom of movement that now exists within the
European Union to come to this country. It is right that we should put in
place the requirements while working with our UK and European colleagues to
strengthen measures. There are arguments for introducing in the fullness of
time some kind of European registration—a scheme that would ensure that
people are required to provide notification to jurisdictions in the
European Union when they move.

We do not underestimate the difficulties. Unfortunately, although we may be
prepared to legislate, that is not always the case elsewhere. However, it
is right to identify the problem, to do what we can to solve it, to
anticipate what may need to be effected and to work with our colleagues to
ensure closer co-operation within the European Union in the first instance
and beyond if possible.

Stewart Stevenson: Over the next two days, the Parliament will debate the
Mental Health (Care and Treatment) (Scotland) Bill. Section 83 of the
Sexual Offences Bill, which is headed "Persons formerly subject to Part 1
of the Sex Offenders Act 1997", deals in subsection (4) with detention in
hospital and section 121 deals with mentally disordered offenders. Is the
minister satisfied that the inter-operation of the Mental Health (Care and
Treatment) (Scotland) Bill and the Sexual Offences Bill is adequate and
complete?

Hugh Henry: I believe so. I will ask Alison Coull to address the specific
issue.

Alison Coull (Office of the Solicitor to the Scottish Executive): The
Sexual Offences Bill is drafted in terms of the Mental Health (Scotland)
Act 1984. However, there is power in the Mental Health (Care and Treatment)
(Scotland) Bill to amend legislation to ensure that the new regime is taken
account of. We will be able to amend the Sexual Offences Bill and to use
the order-making power to ensure that it takes account of the new regime.

The Convener: That ends questioning. We must now report to Parliament.

Hugh Henry: I will try to obtain information urgently on the timetable for
the Sexual Offences Bill, if that would be helpful, and will communicate
that to members through the convener.

The Convener: That would be helpful. I suggest that we take advice on the
matter. I would have been a great deal happier if the provisions in
schedule 2 headed "Offences in Scotland" were headed "Common-law crimes
with a significant sexual element". I do not know whether that would
address Stewart Stevenson's point. At this stage, we need to say what we
would like to see in our report.

Stewart Stevenson: Being a fairly practical person, I think that the only
thing that the committee can say to Parliament is that it makes no
recommendation on the bill. My reason for saying that is that we have spent
only a brief amount of time—less than an hour—on what is a substantial
bill. We spent months on the Criminal Justice (Scotland) Bill, which was
two thirds of the size. I simply do not feel that we can have done justice
to the bill. We have dipped into the issue, but we have found that there
are difficulties, which the minister has not been able to resolve by
plucking an answer from the air. That is not the minister's fault and it is
not our fault, but we are simply not doing justice to the bill. We should
not make a recommendation on the bill or agree to the motion because the
consideration that we have given the matter in the past 45 to 50 minutes is
not sufficient to enable us so to do.

Mr Hamilton: It strikes me that the nature of the discussion that we have
just had is one reason why the bill should have been considered in much
more detail. Notwithstanding the considerations about timing, bills such as
this one should come before the committees of this Parliament as a matter
of policy. We have asked many questions. We have received answers to some
of those questions but not to others. It would be stretching things to
recommend that we are happy to proceed on that basis. I have concerns about
the level of scrutiny that the bill will receive in Westminster. The
assurances that we have received on that were not strong enough for my
liking.

Leaving to one side what we think should happen, I think that it is
important that we at least get clarity on where exactly the line for Sewel
motions is drawn. If we wish to adhere to the principle that the UK
Parliament does not normally legislate on devolved matters, it is clearly
contradictory to state that sexual offences provisions should normally be
dealt with on a UK-wide basis. We may all have different views on that, but
the Executive needs to clarify the issue about Sewel motions.

The Convener: I have no difficulty with the principle that our sexual
offences legislation should be consistent with a UK framework, so we would
have to say that there is a mixed view on that issue. I concur with the
view that we should say that we ought to have had more time, as that would
have enabled us to ensure that we were clear about the elements that we
have discussed this morning. If we had had more time, we could have
appointed an adviser and taken proper advice on some of the issues, which
would have allowed us to come to a more definite conclusion.

However, there are still things that can go in our report. We can draw to
Parliament's attention some of the concerns that we have raised this
morning. Perhaps all that we can do is reflect the mixed opinions about the
Sewel motion and list the concerns that members have raised on the record.

Bill Aitken: We can also highlight our unanimous view that it would have
been preferable if we had had more time to look into the issue and to deal
with it more appropriately.

Stewart Stevenson: My concern is not so much about the principle of Sewel
motions—although I am sure that that will be debated when the motion goes
before the Parliament. Where I am coming from is that there is a practical
issue about the bill. Other people in other places will raise other issues
about Sewel motions per se. My point is simply that if, as a devolved
Parliament, we are in a position in which we have to inter-operate with
other Parliaments, the system must work better than it appears to have
worked in this instance. That is the core of the issue that I have raised
today.

The Convener: We will reflect those comments in our report. I am mindful of
the fact that this is the committee's final meeting and that Parliament
will be dissolved on 31 March. However, we could still take advice for
others to pick up on. It could then be determined whether the listing of
offences in the bill is relevant. We do not have a specific adviser, but I
imagine that we could ask Professor Gane, who was our adviser on the
Criminal Justice (Scotland) Bill, whether he would offer us his opinion. Is
that agreed?

Members indicated agreement.

Mr Hamilton: Could I just get some clarification about what precisely we
are asking of Professor Gane? What is his remit?

The Convener: It is essentially to do with the debate that we had about
Stewart Stevenson's question whether it would be better if the list of
Scottish offences in the UK Sexual Offences Bill were deleted and if the
bill referred to common-law crimes with a significant sexual element,
rather than simply—

Mr Hamilton: And, on scrutiny, the minister will write to the convener to
outline the process from—

The Convener: We will get a note from the minister about the timetabling,
yes.

Mr Hamilton: So once you have received that letter, the committee may want
to reflect and report on it.

The Convener: We would try to draw on the correspondence as much as we can
before the Parliament considers the matter, so that the Parliament has a
report before it. We really have to clear the report by the end of
tomorrow. We can only do our best to pull this together and we will just
have to see whether we can achieve our aims by the end of tomorrow.

Stewart Stevenson: Is the Sewel motion to be considered on Thursday
afternoon of this week?

The Convener: Yes.

That brings us to the end of our consideration of this item. I thank the
minister and all his officials for participating in this morning's
discussion.

Subordinate Legislation

Births, Deaths, Marriages and Divorces (Fees) (Scotland) Amendment
Regulations 2003 (SSI 2003/89)

The Convener: Item 2 is subordinate legislation. We have two negative
instruments to consider. The first is the Births, Deaths, Marriages and
Divorces (Fees) (Scotland) Amendment Regulations 2003 (SSI 2003/89). I
refer the committee to the note that has been prepared by the clerks. The
Subordinate Legislation Committee considered the regulations at its meeting
on 25 February 2003 and had no comment to make. Does the committee have any
comments?

Members: No.

The Convener: We will note the regulations.

Sheriff Court Fees Amendment Order 2003 (SSI 2003/97)

The Convener: The second instrument that we have been asked to deal with
this morning is the Sheriff Court Fees Amendment Order 2003 (SSI 2003/97).
A note on the order has been prepared by the clerk. The Subordinate
Legislation Committee considered it at its meetings on 4 and 11 March. It
sought clarification from the Executive—the Subordinate Legislation
Committee was very much on its toes—and members will see the Executive's
reply, with an explanation of the definition of the "transitional period".
I have no concerns now that I have read the reply. Do any committee members
wish to make any comments?

Members: No.

The Convener: Are members happy to note the order?

Members indicated agreement.

Legacy Paper

The Convener: Item 3 is our legacy paper. We have to finalise our legacy
report in the light of the further information received from the police
organisations and the Faculty of Advocates. We have also received a reply
from the Minister for Justice on the committee's scrutiny of European
issues. Do members wish to add anything to the paper in light of the
additional information?

Bill Aitken: I am surprised that we have not received a response from the
Law Society of Scotland, which I thought would have been quite keen to make
an input.

The Convener: Is there anything contained in the information that members
wish to add to the legacy paper? Is there anything that the clerks think is
worth drawing from the paper?

Gillian Baxendine (Clerk): Members might find the comments from the Faculty
of Advocates on the timing of legislation of particular interest. They very
much chime with the committee's concerns, so members might wish to
highlight the fact that it is not just committee members who share those
views.

The Convener: Is it possible to submit the letters with our legacy report?

Gillian Baxendine: Absolutely.

The Convener: Why do we not just include everything and call that the
legacy report? The correspondence is fairly short. Furthermore, a future
committee might find it helpful to read what the various organisations
think about stock taking.

Bill Aitken: It is important that we underline how difficult life has
occasionally been made for us by having to get legislation through in a
manner that is not satisfactory for proper scrutiny. The time factors that
apply throughout the Parliament have to be reviewed.

Mr Hamilton: The paper from the Faculty of Advocates says that the
faculty's law reform committee is keen to have feedback from us about the
degree to which a technical rather than policy-focused approach would help
us. The committee should probably reply to the faculty about that.

The Convener: We have had at least one meeting with the faculty in which we
have talked about the relationship that it might have with the committee.
We have made it clear that we would value closer liaison, which would allow
us to talk through the issues of the day. There is often a question of
finding the time to fit that in. We suggested that we could have an evening
session over dinner twice a year, because people are usually around on a
particular evening. That would allow people to eat and talk at the same
time.

12:00

Mr Hamilton: That brings up the prospect of having standing advisers.
Although some flexibility is needed for each issue and the committee might
want to have an individual expert on a matter, is there an argument for
having four or five retained advisers?

The Convener: Yes. I am glad that you have raised that.

Mr Hamilton: Such advisers would not be here all the time, but we could tap
into them as appropriate.

The Convener: That is an excellent point, which I meant to suggest earlier.
I have realised that we should have had an adviser on the Land Reform
(Scotland) Bill. We did very well, but we would have benefited from a wee
bit of assistance. That would probably apply to any weighty bill. Where
could we add that in the report? Should it go with operational issues?

Mr Hamilton: Yes. The committee advisers section of the paper from the
Faculty of Advocates says that the faculty would be willing to act in that
way, as I presume people from other walks of life, such as academia, would
be.

The Convener: We could construct a paragraph under the heading "Operational
Issues" to say that we greatly benefited from the advisers whom we had and
now take the view that advisers should be available for every piece of
legislation, including statutory instruments. We could suggest a standing
panel of advisers and the appointment of more appropriate advisers for
specific matters. Organisations such as the Faculty of Advocates and the
Law Society might not have the status of advisers, but we would find it
useful to keep up liaison with them outside formal committee meetings, to
ensure that the committee has a rounded view.

Mr Hamilton: That would also combat the problem of short time scales for
dealing with legislation or decisions, because we would not have to approve
an adviser. The advisers would be available if we needed to pick up the
telephone to them and such help would be available to all committee
members.

The Convener: Given its remit, a committee on justice and home affairs will
probably need such a resource.

Mr Hamilton: Can I stress that I will be available next year at a cheap
rate?

The Convener: No.

Is everybody reasonably happy with the proposal?

Stewart Stevenson: I have an observation. My party colleagues on the
Justice 1 Committee said that they had reached a different conclusion about
whether two committees should be established. Nonetheless, they have not
succeeded in persuading me that there should be one committee. I remain of
the view that unless a radical change takes place in the approach to
legislation, we need two committees. In practice, any liaison between the
two committees appears to have been conducted in a way that has served the
interests of good legislation and good research.

The Convener: It helps to have that on the record.

Scott Barrie: The establishment of two committees has worked surprisingly
well. I appreciate that other people have a different view on that, but I
was a member of the old Justice and Home Affairs Committee from its
inception and it was patent that that committee's work load was intolerable
and could not have continued. A solution was needed. Whether having two
committees was the solution is for people to have a view on, but it was
obvious that the Justice and Home Affairs Committee could not function with
the volume of legislation that it had, never mind what it would have had to
deal with later—the work load that the two committees have had in the
past 12 months. People who are thinking about not having two justice
committees should also think about how such a work load would be split.

The Convener: I also hope that in future people will not assume that the
justice committees should deal only with criminal-law legislation. One of
the system's successes is that, because of the way in which bills have been
referred, we have been able to deal with civil and criminal legislation.

I think that that deals with our legacy paper—our words of wisdom for
future committee members.

Stewart Stevenson: We now come to the important issue of when we are going
out.

The Convener: I am sorry, but we have one more quite important item to deal
with.

Petitions

Asbestos (PE336)

The Convener: I will go through each of the petitions to establish their
status. However, first we need to discuss the important matter of petition
PE336, which concerns asbestos poisoning. To find out what progress has
been made on that petition, committee members should refer to a note on
last week's meeting with the Lord President and to the final practice note
that has been issued.

Bill Aitken, the clerks and I met Lord Cullen and others over the past
month to convey the committee's support for the principles behind the
petition. I think that we have made some progress, although it is up to the
committee to determine whether that is the case. I will set out the main
points, after which Bill will no doubt want to add some comments. I would
appreciate it if we could then discuss the matter so that I can hear the
committee's views about the petition's progress.

I should point out that, although the matter was first raised in the
petition, it has now been the subject of a committee report and is
therefore part of the committee's general work load. In its report, the
committee recommended that the timetable for diets of proof should be
shortened to six months and that a judge should preside over proceedings
six weeks before proof.

Members will have a copy of Lord Cullen's letter, which explains his
attitude towards those recommendations. He says:

"I have carefully considered the Committee's recommendations in regard to
the procedure in mesothelioma cases and other cases with similar
characteristics. I entirely agree that, in view of the short life
expectancy of the pursuers, such cases should be brought to a conclusion,
whether by settlement or judgment, as speedily as possible."

He also recognises the amount of time and effort that the committee has
devoted to the matter. Although he has some doubts about our recommendation
on shortening the timetable to six months, he has taken our points on board
and has produced the practice note accordingly.

Members will be aware that, under new rules, a diet of proof has to take
place 12 months from the date on which the case is raised and that rule
43.8 allows for either party to apply for the variation of the timetable.
However, it has been made clear that any extension beyond those 12 months
is unlikely.

It is important to point out that the proposal in question centres on rule
43.8. As a result, we sought clarification from the Lord President about
what the rule would mean in practice. He made it clear that references to
cases of terminal illness have been introduced as a matter of policy and
the factor should weigh significantly in the court's decision. He also
explained that as each case will vary it would not be appropriate to take
anything away from the judge's responsibility by specifying a particular
timetable. For those reasons, he did not agree to our recommendation for a
six-month timetable. I should make it clear that we strongly emphasised
that the committee wanted to achieve such a timetable. We still feel that a
judge should be involved in the proceedings to ensure that the parties are
ready.

I refer members to the practice note itself, which if accepted sets out the
rules that judges will adopt. One departure from our suggestions is that
the procedure is to be adopted for all parties who have a terminal illness
who apply for a variation to the timetable, even where the illness is not
necessarily related to the action. The Lord President felt that we could
not distinguish between those who have a terminal illness that is related
to the action and those who simply have a short life expectancy. I agree
that that is a fair way in which to proceed.

Members can read through the rules. Rule 43.1 is about application and
interpretation, rule 43.2 is about summons and pleadings and so on, but the
heart of the matter is the variation of the timetable. We pressed hard on
what will happen when parties apply for a shortening of the timetable. We
wanted to know whether it will be possible to achieve a six-month timetable
and were told that it will be. However, if the judge determines that the
process might take a bit longer, it will be their prerogative to say that a
seven or eight-month timetable is required. It is important that members
read the Lord President's notes, but I wanted to let members know that we
pressed strongly on that issue. I believe that we are near to achieving our
objectives. The practice note will allow for the possibility of a six-month
timetable, although where it is shown that that cannot be achieved, the
timetable might be slightly longer—that will depend on the complications
of the case.

I have a doubt at the back of my mind about whether, given the short
timetable, there should be a point at which parties go to the judge to
ensure that they are prepared for the proof. We pressed that point with the
judges, but they are not keen on it for several reasons. One reason relates
to the resources of the court; another is that judges feel that, as the
timetable will accelerate all the processes, the judges will be hard on
parties who are not prepared. If a six, seven or eight-month timetable is
agreed, the parties will be expected to adhere to it.

The petitioners and the committee are concerned about parties who will not
be affected by the new rules and who will have to undergo the procedure
under the old rules because we cannot change the rules halfway through
proceedings. It is the judges' view that, by dint of the dynamics of the
new rules—both the Coulsfield rules and the new shortening of the
timetable where a terminal illness is involved—the existing cases will be
accelerated. Lord Mackay will continue to conduct the by order hearings for
a certain period to ensure that the systems are fast tracked.

The matter is to do with policy. We questioned the wording of the practice
note, because at first read it seems to be in casual or loose
language—for example, it states that the court must

"look with considerable sympathy on"

such requests. However, we have been assured that no judge would contravene
such phrasing in a practice note because it is deemed to be policy and is
instructed by the Lord President. We mentioned that, to a lawyer, the
wording does not mean anything, but we were assured that the wording is the
language of the judiciary for saying in lay person's terms, "This must be
done."

We had a hard discussion and I believe that we achieved a lot—although
that is for the committee to determine.

12:15

Bill Aitken: The process has been interesting and a lot has been achieved.
When the matter first came to the committee, there was tremendous sympathy
for the people who were in such an unhappy position. The committee was
determined to ensure that something was done and I am convinced that we
have achieved that.

The crux of the matter is defined in rule 43.8 of the practice note that
the Lord President proposes to issue. The convener was correct to point out
that she and I were a little dubious about some of the language that was
used. We felt that it could have been more specific and harder, to ensure
that applications for an acceleration of the timetable would be dealt with
in the manner that we would have wished.

However, I draw to the committee's attention to the wording, which states
that the court would

"look with considerable sympathy on"

any such applications. The word inconceivable is perhaps too strong to
describe the situation but, frankly, having heard the Lord President's
explanation, I think that it would be extremely unusual if the process did
not go on along those lines. It should also be highlighted that any
individual or party opposing an application for acceleration must

"demonstrate that their opposition is well founded"—

to use the words that are contained in practice note number 2. There is
also an appeals provision in the event of either party feeling that they
have not received satisfaction in that respect.

This issue is also likely to remain live in the Court of Session. One of
the procedures that was outlined in the Coulsfield rules was that a users
committee could be set up. Such a committee will obviously keep the
situation under constant review, particularly in the early months when
people will necessarily be finding their feet.

That leaves simply the outstanding cases that are already in the pipeline.
As members are aware, on separate occasions the convener and I attended
Lord Mackay's court to see what happened there. From our observations it is
clear that he is making every effort to expedite matters. Delays were not
exclusive to the defenders; the pursuers also had to take responsibility
for delays from time to time.

All in all, our work on this petition has been worth while. Clearly, and
ideally, we would have wished to see all those cases disposed of within six
months, and some of them may well be. We have achieved a result that will
in turn inevitably mean that those cases will be dealt with on a fairer and
more expedient basis than has previously been the case. That is as a result
of subtle pressure that was recognised as being worth while and that
received a receptive hearing from the Lord President and the others whom we
met.

Mr Hamilton: The convener, Bill Aitken and the Lord President are to be
commended for what they have done on this petition. We have reached the
point that is precisely where we would have wanted to end up, and we have
the commitment that matters will be expedited as quickly as possible.

Practice note number 3 states:

"Practitioners are reminded that in any personal injury actions which have
been raised under the existing procedures ... it is possible for a party to
seek an early or accelerated diet of proof or jury trial, where there is
good reason for doing so."

Does that relate to cases prior to April?

The Convener: Yes.

Mr Hamilton: What is the difference between that position and the new
procedure?

The Convener: The difference is that the new procedure will apply under
rule 43.8. The judge must consider that as a matter of policy and must look
with sympathy on applications and on the applicant's circumstances. It is a
stronger provision.

Mr Hamilton: Once that policy has been decided different procedures do not
necessarily mean that those cases prior to April will be leapfrogged in the
process. Is that correct?

The Convener: No.

Gillian Baxendine: Just for clarity, the other difference for the cases
before 1 April is that the Coulsfield provisions will not apply. Those
cases will not automatically be timetabled and the procedure will not be
truncated in that way. There will not be things like the meeting between
the parties prior to the hearing. All the procedures that have been put in
place to accelerate things in the Coulsfield provisions will not exist for
those cases.

Mr Hamilton: But for those who are in the pre-April category, the fact that
the other cases will take place on a truncated time scale will mean that
the queue is shorter and the wait is shorter so everybody will benefit.
However, there is no possibility of changing the pre-April regulations.

The Convener: That is right.

Bill Aitken: Inevitably, the fact that the more recent cases are being
dealt with in this manner will have a knock-on effect.

The Convener: The by order hearings conducted by Lord Mackay can still
proceed for the cases that are pre-April, so that has been successful so
far in shortening the timetable.

Mr Hamilton: Okay. That is fine.

The Convener: Ultimately, what we detect—we can get only a sense of what
we think is going on—is that the will is there to speed up the pre-1
April cases. However, the provisions do not back that up if parties are
dissatisfied.

Mr Hamilton: I appreciate that. My other question is about the dispute that
might surround an application for an accelerated diet and Bill Aitken's
comments about rule 43.8, which states:

"Any party opposing such an application will be required to demonstrate
that their opposition is well founded."

Do we have any greater understanding of what that means? What is the most
likely scenario?

The Convener: We spent a lot of time asking what that meant. A flavour of
what was said to us is that judges would expect a damn good reason from the
defence if it did not believe that a short timetable could be achieved,
given that the policy is about applying a short timetable for a
reason—that the person's life expectancy is so short.

Mr Hamilton: That is fine. I was just curious.

The Convener: You have asked the same questions that we asked.

Mr Hamilton: I do not doubt it.

I have one final question on whether the process works. Is there any
facility for keeping a note of the statistics? Is there on-going research
so that we know whether the process works and whether we need to review it
further? I do not know whether such research would be done in conjunction
with the Executive and the courts.

The Convener: The Executive has offered to do that. I think that, in
concluding the matter, we should make it clear that the committee expects
to work with the Scottish Executive and the judiciary to review the
practices. I do not know whether we want to suggest a timetable, but that
must be our strongest point. We currently have to trust that the legal
process will work. At an appropriate point, someone must examine the
process and consider the relevant statistics.

Mr Hamilton: Who is responsible for the collation of the statistics?

Gillian Baxendine: The Scottish Executive has offered the services of its
research department to help with that, but it is a matter for the court.

Bill Aitken: The users group is also involved. It will be representative of
all parties and will have the figures before it. We should be able to tap
into that.

Mr Hamilton: Is this part of our legacy paper? Does the paper already state
that there will be an on-going review?

Gillian Baxendine: The legacy paper will have to be updated in the light of
this discussion.

Mr Hamilton: In that case, I am happy to support that approach.

The Convener: We will state in the paper in the strongest possible terms
that there will be an on-going review.

We are trying to arrange a meeting this week to make the petitioner aware
of both what the Lord President had to say to us in his letter and what the
committee has now agreed. The meeting is likely to be on Thursday. We are
clear that we must now talk to the petitioner. It is helpful if committee
members feel that the objectives in the report have been achieved.

Members indicated agreement.

Paedophiles (Sentencing) (PE490)

The Convener: Petition PE490 is on sentencing of convicted paedophiles. The
committee did not invite any further action on that petition. I guess that
the committee does not want to refer it back to the Public Petitions
Committee.

Fishing Industry (Fixed Quota Allocations) (PE365)

The Convener: Petition PE365 is on a review of fixed quota allocations and
property rights in respect of Scotland's fish stocks. Do members want to
refer that petition back to the Public Petitions Committee?

Members indicated agreement.

Judiciary (Freemasons) (PE306)

The Convener: Petition PE306 is on freemasonry and the judiciary. The
committee decided that it did not want to take further action, but invited
the petitioner to provide more information, which has now been provided.
What is the committee's view on whether the petition should be referred
back to the Public Petitions Committee?

Mr Hamilton: I am content that the issue has been exhausted.

Bill Aitken: I concur.

The Convener: Unless any other member is otherwise minded, I do not propose
to refer the petition back to the Public Petitions Committee.

There is one question that I need to put to the committee on this issue,
which is whether the committee is minded to publish Mr Minogue's evidence,
given that we invited him to submit it. I have been advised that our legal
department has some concerns about the contents of that evidence. The
petitioner is pressing for his evidence to be made available on the web,
but, having read through the evidence, the committee might want to take a
view on that.

Stewart Stevenson: On whose shoulders would the liability lie in law if we
were to publish the evidence in its entirety?

Gillian Baxendine: My understanding is that a number of issues arise, one
of which is possible defamation. The Parliament is protected in relation to
that. Nevertheless, it would be for the committee to decide that it was
happy to publish. There is a separate issue to do with the Data Protection
Act 1998. My understanding is that the Parliament will be liable if it
publishes something that breaches that act, and that there would need to be
some editing of the submission to comply with that act.

Stewart Stevenson: I therefore propose that, based on the legal opinion,
the evidence be edited or those parts that relate to potential breach of
the Data Protection Act 1998 be excised, but that otherwise it be
published. If the petitioner, having been apprised of the legal opinion
that there may be defamation, persists in wishing to publish the evidence,
it is for him to consider the consequences. I propose that we publish.

Gillian Baxendine: To be clear, my understanding is that if the evidence is
published as a parliamentary proceeding, the protection extends to the
petitioner as well.

Stewart Stevenson: In that case, I recommend non-publication.

Mr Hamilton: We have to be careful about this. My take on it is that to
publish half the paper would be to stoke the fire still further. I suspect
that we should simply say that if the petitioner wishes to publish the
evidence, distribute it or put it on his own web page, so be it, but it is
not something with which the Parliament should be associated.

The Convener: I am sympathetic to the principle of the petition, but the
committee decided that it was not, and that is the status of the petition
at the moment. We invited the petitioner to produce information. I have an
open mind on that, but the evidence that has been produced is not the kind
of information that I was looking for. I was quite surprised to read some
of it.

Mr Hamilton: The point is that if we make an active choice to extend
parliamentary privilege to something that we are sceptical about, we do a
disservice.

The Convener: So the committee is agreed that we will not publish the
evidence.

In closing our last meeting, I wish to put on record my thanks to all
members of the committee. I have enjoyed my time here. I know that you have
all worked really hard and have really thought about all the pieces of
legislation that have been before us. It has been a small committee. It has
been a bit hairy at times, in terms of getting everybody here. I know that
tremendous pressures have been placed on members, because we have met twice
a week at times—we have done so more than any other committee—but it
has worked well.

It goes without saying that I speak for all the committee in thanking the
staff and the clerks.

Stewart Stevenson: Hear, hear.

The Convener: They have managed to do the impossible sometimes in
deciphering all the decisions that we have made. I thank them very much.
Perhaps when the meeting closes we will discuss when we can show our
appreciation to them over a drink. I wish them all the best of luck for the
future. They have all done a great job.

Bill Aitken: Before we close the meeting, it would be appropriate to
associate myself with your comments. This has been a tremendously good
committee. We have frequently disagreed—that is political life—but no
one could doubt the commitment of individual committee members to apprising
themselves thoroughly about what they are doing. Every member of the
committee has made significant input into every matter that has come before
the committee. It has been a personal pleasure for me to work with you
all.

In conclusion, some word of praise inevitably is due to you, convener, for
the way in which you have conducted proceedings. You have done so in a
professional and fair manner. When the Faculty of Advocates records within
its letter that it sent us on our legacy paper that the committee has been
impressive, much of that reflects on you. This has been a very good
committee, which has contributed a great deal to the Parliament. It has
been a success story.

The Convener: Thank you.

Stewart Stevenson: I would like to reflect on what has been said by my two
colleagues and political rivals, and agree with them that the committee has
worked well. I have thoroughly enjoyed my time here. I still have not quite
worked out why my party managers put me on this committee, based on my
previous experience and knowledge, but the committee and its work has
greatly expanded them. I thoroughly enjoyed it. As I do not wish to see
myself quoted in anyone's election address, I will stop short of personal
praise, but you know how much I admire my colleagues and their efforts.

The Convener: It is amazing the things that we have learned about one
another, and the things that I have learned about you, Stewart, and all the
jobs that you have had. Sometimes I listen to you and think, "How could you
possibly have done all those jobs?" but I was grateful that you were an
advanced driver when you took us down to Stornoway.

Bill Aitken: I was always just worried that he had a problem holding down a
steady job.

The Convener: I also thank the official report. I cannot imagine what it
must be like keeping up with what members say. Thank you.

Meeting closed at 12:31.


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