Justice Committee

Meeting date: Tuesday, November 8, 2011

Official Report 354KB pdf

---

Petitions

We move on now to item 3 on the agenda. There are three petitions for the committee to consider today. This is the first time in this session that the committee has had the opportunity to consider petitions referred to us and I thought it might be helpful for new members to know why petitions are referred. Perhaps you do not need me to tell you. Do you want me to?

Members: Yes.

The Public Petitions Committee only refers a petition to another committee when there is an anticipated benefit in doing that, such as when referral could create an opportunity for more detailed scrutiny or when the subject committee anticipates undertaking work in a relevant area. Decisions by the Public Petitions Committee are made on a case-by-case basis and, of course, any subsequent course of action is entirely up to the lead committee, which in this case is us.

---

Legal System (Fee Arrangements) (PE1063)

The first petition is PE1063, by Robert Thomson, on the apparent conflict of interest between solicitors or advocates and clients in the present system of speculative fee arrangements known as no win, no fee.

Members will see from paper J/S4/11/13/2 that the Justice Committee in session 3 considered Mr Thomson’s petition and mentioned it in its legacy paper. Our options, other than taking no action and closing the petition are: to write to Sheriff Principal Taylor’s review of expenses and funding of civil litigation in Scotland, to inform the review group of the petitioner’s concerns, and then close the petition; or to take any other action that members suggest. I am in your hands.

I declare an interest as a member of the Faculty of Advocates. In view of the review that Sheriff Principal Taylor is undertaking, the proper course is to write to him.

Do members agree with that approach?

Members indicated agreement.

Thank you. I heard someone say, “That is sensible”—we are a sensible committee. Do members agree to close the petition on that basis?

Members indicated agreement.

---

Fatal Accident Inquiries (PE1280)

PE1280, by Julie Love and Dr Kenneth Faulds, calls for the amending of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 to require the holding of a fatal accident inquiry when a person from Scotland dies abroad.

As members will see from paper J/S4/11/13/3, the petition was recently referred to the Justice Committee by the Public Petitions Committee. Other than taking no action and closing the petition, one option is to keep the petition open and write to the Cabinet Secretary for Justice to request further details of when the Scottish Government intends to introduce legislation to amend the 1976 act. Do members want to suggest alternatives? Perhaps we should keep the petition open.

The petitioners have raised a relevant issue. There is a difference between Scotland and England, in that an inquiry can be held when someone from England dies abroad. It would make sense to flag up the issue to the cabinet secretary and ask him whether he plans to amend the legislation.

Has that issue not already been addressed? In our briefing, I think that it says that the cabinet secretary does not have plans to amend the legislation, but there is a possibility that the Lord Advocate will be given powers to push forward with a fatal accident inquiry in exceptional cases. I will need to have another look at the paper. It says:

“Government officials have advised that the Scottish Government currently has no plans for any further extension of the FAI regime to deaths occurring outwith Scotland”.

Is there any point in writing to ask the Government if it has plans to legislate?

The advice is two years old. The least that we can do is to ask whether that remains the Government’s position. I suggest that we keep the petition open in the meantime. Do members agree?

Members indicated agreement.

---

Justice for Megrahi (PE1370)

PE1370, which was lodged by Dr Jim Swire, Professor Robert Black QC, Mr Robert Forrester, Father Patrick Keegans and Mr Iain McKie, on behalf of Justice for Megrahi, calls on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.

I declare an interest. As members are aware, I am a member of the Justice for Megrahi campaign and I have had a fairly high profile in arguing that Mr al-Megrahi’s conviction was unsound. I invite comments from members before I speak about the petition myself.

I refer the committee to my entry in the register of members’ interests and point out that my brother, Tony Kelly, has had a long-standing interest in the case.

I will comment on two issues. The petitioners assert that Mr al-Megrahi’s conviction is unsound. The place for the conviction to be tested is in the courts. As members know, the previous appeal from Mr al-Megrahi was withdrawn shortly before the granting of his release on compassionate grounds. I note that the Scottish Criminal Cases Review Commission has said that it can consider a previously abandoned appeal and refer it to the High Court. That is the correct route for testing the soundness of Mr al-Megrahi’s conviction.

In addition to some of the other issues referred to in the further paper that was submitted to the committee by the petitioners, the situation in Libya is fluid, particularly after recent events, and new information continues to come to the fore. The relevant place for that information to be considered is by the Scottish police and Scottish prosecutors. As such, I do not think that there is a role for the Justice Committee in considering the petition further.

Is it not the case that the Scottish Government intends to bring forward legislation fairly imminently to release some of the documentation from the commission? Would it not be sensible to keep the petition open until we see what the Scottish Government comes forward with?

Options are provided in the paper and I certainly favour keeping the petition open pending that legislation coming forward.

I agree with James Kelly that the proper place to test the soundness of a conviction is in the courts. That said, we do not know at this stage what the Scottish Criminal Cases Review Commission’s grounds were and I would hedge my bets and keep the petition open until we have more information.

I share James Kelly’s concerns and his analysis. It is important as a matter of principle that we establish that it is for the courts to determine the validity of a conviction. I hear what Roderick Campbell has said and what others have said, but I think that we should maintain that principle.

Just for the record, I agree with my colleagues, in particular Roderick Campbell.

Again, just for the record, I agree with James Kelly that the courts are the proper place for this to be examined. I have reservations about whether the committee has the ability and the resources to properly test the elements that we would want to examine.

I do not think—

Please, do not respond.

That would be my view, too.

The Justice Committee is not being asked to conduct a public inquiry; that would not be done by the committee. We are asked to ask the Government to consider whether there should be a public inquiry.

I have several issues. The committee may not agree, but this is unfinished business. We had the abandonment of the second part of the appeal, with the whole SCCRC report untested, in extraordinary circumstances. We have Lord Carloway reviewing the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. Those of us who were there the day that we passed the emergency bill—that would be all of us—will recall that I tried to get a section deleted that took away powers from the Scottish Criminal Cases Review Commission and from the High Court. Prior to that, if the SCCRC decided that there had been a possible miscarriage of justice, it would refer the case to the High Court and the High Court had to accept it.

That has changed. Under the 2010 act, it became the case that there was a second test at the SCCRC: not only that there may have been a miscarriage of justice, but that it was in the interest of finality and certainty that it was then referred. Even if the case—not just the case that we are considering, but any case—passed that test and was referred to the High Court, the High Court would not have to hear it. The High Court has a further test: is it in the interest of finality and certainty that the case be heard? I was very concerned that something had slipped in through emergency legislation that required to be fully tested. Lord Carloway is looking at that and should report in November. That is very important for all SCCRC cases that follow.

As we know, legislation will also come to the committee that will permit, subject to data protection, the publication of SCCRC reports where appeals have been abandoned. That is another issue that requires to be considered.

Could you repeat that last bit, please?

At the moment, the SCCRC report is not being published because the appeal was abandoned. However, there is legislation coming to this committee that will allow SCCRC reports to be published, in abandoned cases, subject to data protection considerations. Data protection is a matter for the Westminster Government, so negotiations will have to take place between the cabinet secretary and the Home Secretary on the data protection issues in that legislation. Those are important issues relating to the role of the SCCRC.

Finally, I should note that the submission from the SCCRC says that an appeal can be proceeded with, in cases of abandonment, in very specific circumstances.

I agree with James Kelly that there are routes through the courts, but they are by no means certain at the moment. My suggestion is that we keep the petition open until all the parts of the jigsaw come together. The courts might or might not be the route forward. That is a matter for another time, once the other parts have been dealt with and once we can see, when the report has eventually been published, what happens with the SCCRC’s referrals—whether they go back to how they were or whether the second test, which would lie with the High Court, is kept. All that is important, with regard to serving the interests of justice.

I think that the committee is split on the course of action, unless I have convinced James Kelly and others.

I am persuaded by your arguments and am happy to keep the petition open.

I am afraid that I am not persuaded by your arguments, convener. I am not in favour of keeping the petition open.

I am with James Kelly.

To ensure that we have clarity, we will vote on the matter. The question is, that the petition be kept open.

For

Campbell, Roderick (North East Fife) (SNP)

Finnie, John (Highlands and Islands) (SNP)

Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)

Keir, Colin (Edinburgh Western) (SNP)

McInnes, Alison (North East Scotland) (LD)

Yousaf, Humza (Glasgow) (SNP)

Against

Kelly, James (Rutherglen) (Lab)

Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)

Pearson, Graeme (South Scotland) (Lab)

The result of the division is For 6, Against 3, Abstentions 0. The petition remains open.

I suspend the meeting for a moment.

11:12 Meeting suspended.

11:13 On resuming—