- The Convener:
Item 6 on our agenda concerns the bill to reform the High Court of Justiciary, the Criminal Procedure (Amendment) (Scotland) Bill. Members will recall that they agreed to invite Professor Christopher Gane to be one of our advisers on the bill. I now notice that he is here—I could not see him because he was sitting too close to me. I thank Professor Gane for agreeing for the second time to act as the adviser on a bill.
As I requested, extracts from the Criminal Procedure (Scotland) Act 1995 have been circulated to members. I do not want members to be put off by that, but in the past, when amending legislation, we have not had the relevant act in front of us. The extracts will provide members with the most up-to-date position on the 1995 act as they scrutinise the bill.
Members also have a note that has been prepared by the clerk. We will seek members' views on the list of possible witnesses and any other items that they believe the committee should consider when scrutinising the bill. Would members like to make any general points about how we should scrutinise the bill?
We usually appoint advisers, draw up a list of witnesses, schedule meetings, take evidence from witnesses and issue a stage 1 report. I was wondering whether there was any way we could reach High Court practitioners to refamiliarise ourselves with their—albeit anecdotal—views about how the High Court operates. That might mean that we have to hold meetings outside this committee room. As a result, it has been suggested that holding some kind of seminar might meet our aims—we could play around with the idea. It is not as though the High Court reform bill will be lengthy; however, we really need to get it right. I think that we should feel free to open out our approach to certain subjects if doing so means that we feel that we are better informed.
- Michael Matheson:
What is the time scale for stage 1 of the bill?
- The Convener:
The Parliamentary Bureau has yet to agree the timetable. However, at the moment, we are looking to complete the stage 1 report by mid-January 2004. In the past, we have agreed with the Parliamentary Bureau a timetable that we think we can meet, but sometimes we have had to reassess things in the light of evidence that we have received. As convener, I feel strongly that we should try to meet the terms and the timetable that we agree with the bureau; however, I also feel equally strongly that we should not be tied to a timetable if something comes up that we as legislators think merits further scrutiny. If that happens, we will simply have to renegotiate our position with the bureau.
Although we try to assist everyone in the process, we have just as great a responsibility to ensure that the committee is satisfied. Given the October recess, the time scale is quite tight, because the recess means that we will have to start in the last week of October and work through November. In fact, even as I speak to members, I am beginning to doubt whether we will have enough time. I open up the discussion to members.
- Bill Butler:
You said that flexibility must be built into our scrutiny. If we feel that the time scale is not long enough, we have simply to say so. I think that it will mean that we have a packed programme.
- The Convener:
We can, depending on what members decide initially today, draw up a temporary programme, which would allow us to defer discussions about the timetable until we see how things look on paper. We can then decide whether the programme is achievable.
We should move on to discuss the witnesses that we want to speak to and the kind of information that we will need in order to scrutinise the bill.
- Michael Matheson:
I know that we have already lined up a visit to the High Court in Glasgow. As I have never visited the High Court before, such a familiarisation visit will help me to understand how it operates.
I should also say that I found our discussions with procurators fiscal and sheriffs during Monday's visit to be very informative; they helped me to understand some of the issues that they face. I wonder whether it would be possible to factor in meetings with similar parties in the run-up to our consideration of the High Court reform bill. Such meetings might give us further background information that we could utilise effectively in our evidence-taking sessions.
- The Convener:
Yes. For the record, I should say that, although our official visit was to a sheriff court, we started off at a procurator fiscal's office. Michael Matheson is absolutely right: informal discussions allow us to get to the root of issues and to understand them. If members feel that we should hold some informal evidence-taking sessions, that is okay.
Michael Matheson mentioned that we will visit the High Court in Glasgow on 27 October. That is quite neat, because that is when we will kick off the inquiry. As I recall, we have visited the High Court in Glasgow—we have some figures, statistics and a report of that visit, which it might be quite important to dig out. The reason why I suggest that is that I am pretty sure that there was opposition among the courts administration to the introduction of preliminary diets. It might be useful for us to see that report. We could ask at the High Court about that in the light of what we will examine, which is the introduction of preliminary diets. Chris, do you have any advice?
- Professor Christopher Gane (University of Aberdeen):
It is critical that the committee see what happens in the High Court in order to get some feel for the practical difficulties that Lord Bonomy was trying to address and which the Executive is trying to address in its bill.
If possible, some members of the committee should also visit a High Court outside Edinburgh and Glasgow. The experience of High Court practice on the circuit in some of the other major centres in Scotland can be quite different. There is a perception that circuits are sometimes prone to collapse when late guilty pleas are submitted or when cases simply do not go ahead. The experience might be different in Dundee, Arbroath or Aberdeen from the experience of the High Court in Edinburgh. That is something to bear in mind.
- The Convener:
That is helpful. The High Court moves around the country and we should perhaps see it elsewhere.
The programme for that day is still to be considered. Now is the time for input if members have any ideas about what we can do on that day. I would be interested in speaking to members of the Faculty of Advocates who spend a lot of their time in the High Court. I wonder whether there is a structured way of shadowing them on the day.
- Michael Matheson:
We could ask them.
- The Convener:
Have not we had an offer to shadow them?
- Michael Matheson:
We could just inform the devil.
- The Convener:
Yes, could we be devil's advocate for the day? We could obviously sit in the High Court and see the processes, but we might also want to speak to people there about what goes on behind the scenes.
- Mrs Smith:
We will want to talk to the people in the court service, the advocates and so on about what we are trying to do. We should try to get a mix of formal and informal input and we can see what suggestions that produces. Monday's visit to the sheriff court worked very well, in that respect. It was helpful to get an informal briefing before we saw formally what happened. That would be a good way in which to approach our visit to the High Court. We should ensure that we are not just thrown in cold.
- Michael Matheson:
Some individuals may interpret the idea of informal briefings as being a way of keeping information out of the public domain. We should emphasise the fact that informal briefings would help to ensure that we were better informed in considering the legislation and taking evidence. If any organisations were to suggest that informal briefings were a way of hiding things, we should make it clear that that is not our intention.
- The Convener:
Yes. We will state our intentions once we have summarised what we want to do.
We will make a visit to the High Court, and the committee feels that, as well as having information on the record, it needs some informal input. The important point is that all the information that we will receive will be included in a report, which will form part of the stage 1 evidence. That report will be open to any member of the public to see, so no one will be excluded. The only difference will be that it will not be an Official Report—it will not be verbatim. Nonetheless, the information that it will contain—which we will use—will be available to the public.
- Mrs Smith:
For clarification, I will give an example of what I thought was very useful when we visited the sheriff court. In the morning, we were able to sit with the fiscal and were told exactly how many cases were coming up in the custody court. We were then able to talk to the fiscal who was going to deal with those cases in the afternoon.
Such an informal meeting can be had away from the Parliament. It does not have an Official Report, but it gives us background information about what we will see when we enter the formal court situation. For many of us, our previous visit was only the first, second or third time that we had been in such a situation. An explanation on the day of what will happen, and an opportunity to talk to some of the participants, will represent the mix of informality and formality that I have in mind.
- The Convener:
That suggestion is good. In principle, we will design the programme to be like that as far as possible. My initial feeling is that we will be constrained by members' available time and by other matters. However, I wonder whether it would be a good use of time to spend one day in the High Court with the Crown and one day with the defence. I know that that would take two days but, in the long run, that might give members a sharper and quicker understanding of both sides.
- Mr Maxwell:
I support that, whether or not the visit takes two days. One great aspect of the visit to the sheriff court was our talking to the PF in the morning and to the sheriffs at lunch time, because that gave us the two sides of the debate. It was enlightening to hear those two angles. I agree entirely with the suggestion, whether the two elements take place on the same day or on different days.
- Marlyn Glen:
Could the idea of visiting the High Court outwith Edinburgh or Glasgow be incorporated? That would take up a second day.
- The Convener:
Yes.
- Professor Gane:
I take groups of students to the High Court regularly and the judges there have always proved to be extremely helpful in providing information that committee members would like, such as explanations of why something happened in a particular way. For a variety of reasons, it is important that we involve judges.
- The Convener:
I thought that judges would be mentioned at some point. I am sure that they would more than welcome our visiting their courts, given that they have a direct effect on the courts.
We could work up the detail on Marlyn Glen's suggestion. We could visit the High Court in Glasgow and in one other place. I am happy to be guided if members have a preference.
- Professor Gane:
Somewhere other than Glasgow or Edinburgh should be visited. The simple thing to do is to talk to the Scottish Courts Administration or the justiciary office about what circuits are likely to be happening at that time to get an idea of official timetabling.
- The Convener:
We could choose two venues. The best places to go to have to be confirmed. We could all go or we could split up. In principle, we have decided that we will spend two days on the visits. If we go to Dundee to spend a day with the Crown, should we return to the same court to spend a day with the defence? Does that matter?
- Michael Matheson:
I wonder whether, rather than spend one day with each side in the same court, we should split one day so that time is spent with the defence in the morning and with the Crown in the afternoon. On the other day, the committee could visit an outlying High Court to find out the general issues there.
- The Convener:
So over two days we would make one big visit and a visit to an outlying court to see what is going on generally.
- Michael Matheson:
Rather than spend two days in one court, we should use one day and split into two groups that could swap round. One group would spend time with the defence in the morning and with the Crown in the afternoon while the other group did the opposite.
- Bill Butler:
That would be a better use of our time. If we spend the morning with one side and the afternoon with the other, that will have a more immediate impact and it will allow us to compare and contrast them.
- Michael Matheson:
The second day would involve a visit to the High Court outwith the central belt.
- The Convener:
Is the idea that we would all go to both places?
- Michael Matheson:
Yes.
- The Convener:
What do members feel about the suggestion that we should hold a seminar with practitioners and others? Again, that would not be an Official Report scenario, but we would have a report drawn up for that.
- Bill Butler:
That would be a good thing. People feel more relaxed in an informal setting, so they are more liable to express their views in an unadulterated way. We would be able to listen to those views and engage in a constructive dialogue.
- The Convener:
I detect a general view among members that they would quite like to spend a bit of informal time on the matter. We might set up the seminar so that we get to spend time with people in smaller groups. I think that those who have an interest in the bill would welcome such an opportunity because we cannot call everyone to give oral evidence to the committee. We will draw up a proposal with some dates. Members will be able to influence the proposal further at that stage.
- Mr Maxwell:
Although the bill obviously deals with reform of the High Court, it might be worth inviting sheriffs and other representatives of the sheriff court to the seminar. There is a proposal to increase the sentencing power of sheriffs from three years to five, so the bill will have an impact on them. It might not be the best use of that seminar time if we were to take evidence from High Court practitioners in isolation.
- The Convener:
That is a good suggestion.
I know that Stewart Maxwell is particularly interested in plea-bargaining, which is referred to in the policy memorandum. Perhaps the seminar could cover a range of subjects. We might be more likely to get information on such issues informally. That is agreed to.
If anything else occurs to members about good subjects to include in the seminar, they can contact the clerks, who will draw up suggestions that will come back to the committee for final confirmation.
We should consider asking sheriffs and judges whether they want to have an input. I have already written to Lord Cullen to ask him whether and how he would want to do that. I have also written to Lord Bonomy—who is, by and large, the author of the proposals—whether he has any suggestions about how we should go about doing that. As members will know, the Scotland Act 1998 prevents us from calling judges in front of the committee. I do not feel that there is a need for us to do that anyway, but there may be a need for us to talk to the justiciary, if it responds. Again, we would draw up a report on that.
Finally, we need to consider whether we want an informal briefing on the bill, during which we would just go through the bill's contents. Do members want such a briefing?
Members indicated agreement.
- The Convener:
The paper before us contains a list of suggested witnesses. As time goes on, members may think of other witnesses who would be more appropriate, but the list in the paper certainly gives us a start.
- Mr Maxwell:
We already have quite a long list of witnesses and I understand that we may want to invite others. At this stage, do we know how much time we will have for oral evidence sessions?
- The Convener:
That will depend on the timetable and the number of witnesses, but I will be guided by the time the committee thinks that it needs. At the moment, I think that we are talking about having four general evidence-taking sessions and one with the minister. That is an extremely short timetable.
- Mrs Smith:
Is that four sessions plus a session with the minister?
- The Convener:
Yes—five sessions in total.
When we get a witness list we try to ascertain in advance the likely areas of interest and to determine timings, so when we start we know roughly when we will finish, although we cannot always predict that. However, with the budget process I found it difficult to question in any depth. For example, Chief Constable William Rae had a lot to say when he gave evidence, but the session could not have been completed in much less than an hour to make it worth while. It is clear that we are up against the clock.
We can work with the list that we have just now and programme in all the events that we have talked about. We will let members see that information, then we can estimate how much time we can programme in. That would give Stewart Maxwell the opportunity to say whether he thinks that there is insufficient time.
- Mr Maxwell:
On the face of it, it does not look like enough time, but it is difficult to be sure. What you suggest is fair enough. We can play it by ear, and if the timetable looks tight we can revisit the issue.
- The Convener:
If members let us know in advance that they want to spend more time with a particular witness, that will assist us in working out if we can do what we want to do in the timetable.
Are there any suggestions for additions to the list? I am not closing the matter. If members feel strongly two or three weeks into the scrutiny that they have to hear from somebody else, we will just have to do that. We will agree the list for the time being, as that will allow us to start to shape the timetable. Members can come back to it later.
Michael Matheson has given notice that he wants to mention something before we go into private session.
- Michael Matheson:
I had to leave yesterday's evidence-taking session on the budget process—I left when we went into private session to discuss the issues that we will raise in our report on the draft budget. I was impressed by Brian Main's paper, which gave us detailed questions and background information.
I confess that, in the course of taking evidence from the Minister for Justice, I was struck by how well prepared she was in her responses to our questions. It occurred to me afterwards—and it went through my mind at the time—that the minister may have had sight of our questions prior to the meeting. I have absolutely no evidence for that, other than my own instinct. Some of the questions that we asked were detailed and focused, and I noticed that the minister always appeared to have ready a response to them, which I found a little surprising. I noticed the change in tone when the Lord Advocate came before us.
Anyway, I purely flag the matter up because I have a hunch—although it may just be the cynical side of me coming out—that the minister may have had sight of our questions. If so, that is a serious matter, which I am sure members would consider to be an issue of concern. I was not sure how to raise the matter, or how to determine whether the minister had sight of the questions, but I had to flag it up, because it concerned me during the meeting. It may be that the minister was just very well briefed. If so, so be it, but she seemed a bit too well prepared for my liking.
- The Convener:
Thank you for that bombshell. I was aware that you were going to raise the budget process; I was not aware of the specific issue. It is sensitive: a serious allegation has been made that a member handed over a private paper to a minister. Does any member wish to speak?
- Mrs Smith:
I will not mention any names, because it is not fair to mention other members in their absence, but somebody else raised the same issue with me yesterday. They felt the same as Michael Matheson, and when it was pointed out to me, I understood what they were talking about. I do not think that Michael Matheson was alone in feeling that it was possible that the minister had sight of the questions. It may well be simply that the minister was extremely well briefed—I thought that she did a good job—but, as I say, someone else made a similar suggestion.
- The Convener:
The difficulty with this issue, particularly as it is controversial, is that it has not been flagged up to the public by being placed on our agenda. It is therefore difficult to have any further discussion about it today. I therefore propose that we close the discussion at this point; I will then consider what the response might be.
I do not know what you are proposing at the moment, Michael. Are you saying that you want me to raise the concern of the committee? What else might you expect me to do?
- Michael Matheson:
To be honest, I am not sure what can be done. I simply felt that I had to notify the committee of my suspicion. Perhaps you could consult the convener of the Justice 2 Committee to find out whether that committee has similar concerns. If so, perhaps something can be done.
- The Convener:
I am happy to do that. However, as the matter is now on the public record, I think that we have to alert the minister to what has been said to allow her to respond. That is the least that we can do. Once we have done that, we can decide whether the matter should be on the agenda of a future meeting.
- Bill Butler:
We have just heard a serious allegation, but one that is based purely on a subjective impression. The impression that I had yesterday was simply that the minister was well briefed, as I would expect her to be.
I do not know whether there is a precedent for a member raising a matter that is not on the agenda, especially something that is as controversial as this. I would therefore suggest that the best thing to do would be to take some advice on the issue after the close of the meeting and proceed from there.
- The Convener:
Bill Butler is right to point out that we are in danger of starting to debate an issue that is not on the agenda, which we should not do.
I will have to take advice on this matter. For the record I should say that, listening to the minister, my thoughts were not similar to Michael Matheson's thoughts. I thought that she gave good answers. I suppose that, having sat through five budget processes, she can probably anticipate some of the lines of questioning—our areas of interest would be quite obvious to anyone who reads the Official Report. However, if two members of the committee have some concern about the situation, I think that the minister should be made aware of that.
The problem is that I cannot now rewind and take back what has been said during this meeting.
- Bill Butler:
With respect, convener, only one member has said that he has a possible problem with the situation. No one else has said so.
- The Convener:
I picked up from Margaret Smith that someone else had voiced their concern.
- Mrs Smith:
Michael Matheson raised the issue with me earlier—however, I thought that he was going to raise it with you privately, convener; I did not think that he would do so in public. When we spoke, I told Michael that someone had already intimated a similar concern to me; I had not raised the issue with someone else.
- The Convener:
Without entering into a discussion that we should not really be having, can you say whether you are concerned about the issue?
- Mrs Smith:
On balance, I would say that I am probably not concerned.
- The Convener:
Okay.
- Mr Maxwell:
I do not want to enter into this debate as I agree that this is neither the place nor the time for it, but I have to say that the thought that Michael Matheson has expressed went through my mind yesterday as I listened to the responses. Being a new member, however, I was not aware of the procedures and did not know how much information the minister might or might not have. I am not saying that she must have had the questions in advance, but the thought that she might have already seen them went through my mind. I did not raise it with anyone, however, as I was not aware of the rules concerning the minister's preparation for the meeting.
- The Convener:
I must close the discussion down at this point. It should not have got to this stage.
I do not mind members raising matters that are not on the agenda but I should really know about it in advance if the matter is controversial. I would have preferred notice, given that this matter is sensitive. I remind members that we publish the agenda of our meetings in advance to ensure that people are aware of the matters that we are to discuss. That is the protocol.
We have agreed to deal with item 7 in private. It concerns discussion of some information in relation to the second adviser to the committee on the reform of the High Court of Justiciary.
Meeting continued in private until 12:19.