Seòmar agus comataidhean

Good morning. I thank the committee for asking me to speak to the regulations.

The purpose of the instrument is to support implementation and commencement of the Age of Criminal Responsibility (Scotland) Act 2019, which provides for orders in relation to children to allow investigation of their actions, notwithstanding that they will not have committed offences.

The orders, when they are granted, will largely permit the sort of interventions that the police would otherwise be able to make in respect of suspects, including searches, interviews and taking of prints and samples. The interventions will enable the police to determine what has happened so that the right support can be put in place for a child whose behaviour has caused harm, as well as for the person who was harmed by that behaviour.

The legal aid provisions are to allow for representation in respect of applications for the orders, in order to ensure that the rights of children—and others, in some cases—are protected in the course of proceedings.

That is a brief overview of the regulations. I am, of course, happy to answer any questions that the committee has.

The draft order confers various legal immunities and privileges on the conference of the parties to the United Nations Framework Convention on Climate Change—COP26—and specified participants.

COP26 is considered to be the most significant climate change event since the 2015 Paris agreement. It is the biggest summit that the United Kingdom has ever hosted and it is a huge honour to welcome the conference to Scotland.

To enable COP26 to fulfil its purpose and take place successfully, it has been agreed that certain privileges and immunities require to be granted to certain attendees. A host country agreement, negotiated between the UK Government and the UNFCCC secretariat, regulates the privileges and immunities that are to be afforded to certain COP26 attendees—for example, certain tax exemptions and immunity from legal process. The agreement obliges the UK to abide by the terms of the protocol on privileges and immunities.

The draft order gives effect to those agreed obligations in so far as they relate to devolved matters in Scotland. Equivalent provision in respect of host country agreement obligations for reserved matters and devolved matters in the rest of the UK is being made by order in council at Westminster. However, to the extent that the privileges and immunities relate to devolved matters, the issue rightly falls to the Scottish Parliament. Subject to parliamentary consideration in this Parliament and at Westminster, both orders in council will be signed.

To assist the committee, I will say a little about the nature of the privileges and immunities. The draft order provides that the representatives of parties to the UNFCCC, the Kyoto protocol and the Paris agreement, the representatives of observer states and the officials of the specialised agencies of the UN will have immunity from suit and legal process. Those immunities cover things done or omitted to be done only while they are exercising their official functions in connection with the Glasgow conference and during their journeys to and from conference premises. The order also provides for the inviolability of any private residence used by representatives during COP26, as well as exemptions and privileges in respect of personal baggage and exemption or relief from all devolved and local taxes.

Importantly, the draft order permits that immunity can be expressly waived by an appropriate party or state. It also provides limited immunity from suit and legal process for representatives of the clean development mechanism executive board. That immunity is conferred only while the executive board exercises its official functions as part of the conference and can be waived by the secretary general of the UN.

It is customary for a sovereign state to grant such privileges and immunities to diplomatic missions and international organisations, to enable them to function. The host country agreement between the UK and the UN on COP26 is broadly in line with that global practice and includes provisions to ensure that immunities and privileges do not impede the proper administration of justice. It is important to emphasise that immunity does not provide carte blanche for ignoring the laws and regulations of the host country. The privileges and immunities that will be conferred by the order are granted primarily on the basis of strict functional need, and it has been agreed by the UK and the UN that they are of no greater an extent than is required to enable COP26 and the specified individuals connected with it to function effectively.

The immunities and privileges are limited in that they apply only to official functions that are undertaken in connection with the Glasgow conference, they can be waived and they do not give an individual freedom to commit criminal activity. The immunity is similar to but more limited than that which has, for generations, been conferred on diplomats working in foreign jurisdictions. As with diplomatic immunity, all individuals who benefit from such privileges and immunities in Scotland are expected to respect Scots law, both criminal and civil.

The order will implement the agreement that the UK has reached with the UNFCCC secretariat in line with global practice. It will enable COP26 to be held in Glasgow and the conduct of associated activities in the UK, while ensuring and upholding protections for the effective administration of justice. As a good global citizen, the Scottish Government has a responsibility to bring the draft order to the Parliament.

I thank Pauline McNeill for noting that change. That specific carve out has been agreed for the draft order.

The purpose of the draft order is to confer immunities and privileges, in so far as those are within devolved competence, on the delegation of the EU and Euratom, their staff members, diplomatic agents and family members. The privileges and immunities are conferred in accordance with the UK-EU establishment agreement. The order will give effect to the devolved aspects of that agreement.

Equivalent provision for reserved matters and devolved matters in the rest of the UK was conferred by legislation at Westminster in July 2021. However, to the extent that the privileges and immunities relate to devolved matters, the issue falls again to the Scottish Parliament.

Before I go into the draft order in further detail, it might be helpful to set out the background. Following the UK’s departure from the EU, the EU established the delegation of the European Union to the United Kingdom, which replaced European Commission representation. The delegation is responsible for representing the interests of the EU in the UK and for co-ordination among the 27 EU member states. EU delegations exist in more than 140 countries outside the EU around the world. The EU negotiates establishment agreements with each of those countries to regulate its status, privileges and immunities.

Legislation is required to implement in UK domestic law the obligations of the UK-EU establishment agreement. Two separate orders are required: a Scottish order and a parallel UK order. The UK order came into force on 22 July 2021. Contingency measures are currently in place by virtue of the European Union (Withdrawal) Act 2018. However, if a Scottish order is not made, disparity will remain between Scotland and the rest of the UK in giving effect to the establishment agreement.

I turn to the detail of the draft order. It treats the EU delegation, including Euratom, in terms that are broadly similar to those that have been agreed with other non-EU Governments globally. Important provisions are included to ensure that the immunities and privileges that are conferred do not impede the proper administration of justice.

The draft order provides the EU delegation with criminal, civil and administrative immunity when operating within its official activities. The premises and archives of the delegation, in so far as they are in Scotland, are also to be inviolable, and the property and assets of the delegation in Scotland are to be immune from search, confiscation or other interference.

EU staff members who have been notified to the Foreign, Commonwealth and Development Office as diplomatic agents will have criminal, civil and administrative immunity, and their residences will be inviolable. Diplomatic agents and their family members will not be obliged to give evidence as witnesses, and their personal baggage will be exempt from inspection unless there are serious grounds for such inspection.

The draft order confers criminal, civil and administrative immunity to staff members, including immunity from personal arrest and detention, but only in respect of the exercise of their functions within the scope of their official activities. Staff members’ official papers and correspondence will also be inviolable.

The draft order provides certain fiscal exemptions for the delegation, its staff and their family members. Those include exemptions from direct taxes on the assets, property, income and operations of the delegation. The diplomatic agents, staff members and their family will also be afforded various exemptions in respect of their furniture and personal effects, as well as relief from paying council tax. However, they will not be entitled to any devolved benefits that are paid.

Importantly, the draft order permits that immunity for diplomatic agents, staff members and their family members can be expressly waived in certain circumstances. For example, immunity and inviolability will not be conferred in respect of any alleged road traffic accidents and road traffic offences.

The draft order implements the establishment agreement that the UK has reached with the EU regarding its delegation in London, in line with global practice. It enables the delegation to conduct its activities in the UK while ensuring and upholding protections for the effective administration of justice. The European Union delegation plays an important role in the UK-EU relationship, supporting a partnership based on friendly co-operation.

I commend the draft order to the committee.

Thank you, convener, and thank you to committee members for inviting us both to speak about our priorities for Scotland’s civil justice system.

Many of our daily interactions and important milestones in life are governed by civil law, whether that is getting married and having children, buying a house, entering into a contract when ordering goods or services, taking out a loan or using social media, to name only a few examples. When things go wrong, we are likely to come into some degree of contact with the civil justice system.

I will give some figures to set out the context. In 2019-20, the proportion of adults who were victims of crime was 11.9 per cent, which is down from 20 per cent 10 years before. However, the Scottish crime and justice survey shows that nearly three in 10 adults—that is 28 per cent—were estimated to have experienced at least one civil law problem during the previous three years. Evidence tells us that people with certain characteristics, such as those who are economically disadvantaged, are more likely to experience civil justice issues and to have to rely on the civil justice system.

Over the past 18 months, our civil courts and tribunals have had to adapt to the impact of the Covid-19 pandemic. With the help of amended court rules and the extensive use of technology, they have ensured that the vast majority of activity has been able to proceed effectively and efficiently. I take this opportunity to thank the legal profession, court staff and our judiciary, social workers and the police who provide order in our court buildings for all their efforts. We can all agree that it is because of their dedication and hard work that civil justice has managed to continue as well as it has during the public health pandemic.

All that does not mean that we want civil justice to remain as it is. We want to drive forward changes and improvements so that we have a modern civil justice system that works for the people of Scotland. Our manifesto sets out our ambition to increase the choice that people have in deciding how to resolve disputes. There is widespread evidence from across the world that disputes arising from a range of issues including debt, housing, consumer purchases, contractual matters and family problems can be resolved quickly, cheaply and more effectively for all parties by using alternative dispute resolution—ADR—methods, rather than going to court. The Scottish Government will work with stakeholders to expand the availability of mediation and arbitration services within the civil justice system and consult as appropriate to give our citizens, businesses and organisations access to flexible, affordable and less stressful means of settling those disputes, benefiting them and saving time in courts.

In line with the disclosure requirements on other senior participants in public life, including all of us, we will begin work to establish a judicial register of interests that will improve transparency and trust in our justice system as a whole.

Last session, the Scottish Government engaged with the Parliament, in particular the Delegated Powers and Law Reform Committee, to reconsider the criteria for Scottish Law Commission bills. Given that effort, we will over the coming session try to accelerate our implementation of SLC recommendations as set out in various reports. Reform of those areas will bring Scots law up to date so that it serves the people of Scotland.

Finally, on access to justice, we will reform the legal aid system to ensure that Scotland has a modern, flexible and user-focused service. The legal profession contributes to the social value of Scotland and helps to protect our human rights and freedoms. It plays a vital role in upholding the rule of law and providing access to justice. We will therefore continue to engage with the legal profession to consider how best to reform the regulation of legal services. Our manifesto sets out our priorities for reforming Scotland’s civil justice system over this parliamentary session. I look forward to working collaboratively with the members of the committee to ensure that we have a modern system that works for everyone.

The cabinet secretary would like to say a few words as well.

That issue has been in the news, particularly on the criminal side, because there is quite a backlog that needs to be cleared on the criminal side.

Things have not quite been the same on the civil side. Proceedings have continued throughout. Many of the adjustments that have been made have been enabled by court rules, although some have been made by legislation—including, obviously, Covid legislation. Sheriff courts reinstated business very quickly after the first lockdown and business continued through the pandemic. Often, that was conducted by telephone conferencing, but there is also a civil online service—I do not know whether the committee is familiar with that. The courts were able to use that to carry on. By the end of last year, all sheriff and civil courts were able to conduct proofs, debates and evidential and fatal accident inquiry hearings virtually, using their WebEx video platform.

There has been an impact. We think that business is down in general. There is no backlog, as such, in civil justice, but we think that there has been an impact and that it has reduced the amount of business that has gone through. I ask Neil Rennick to give a little more information.

I agree with Karen Adam’s points. One of the aims of the Children (Scotland) Act 2020 that we took through Parliament in the last session was recognition that we need to do more to protect victims of domestic violence on the civil side. A number of representations were made to me by groups of people who were going through criminal proceedings for domestic abuse, sometimes very serious, and when they went into the civil court that would not be taken account of in the way that we might expect. One of the aims of the act and of changing the law was to try to protect victims of domestic abuse more.

We have not commenced all the sections of the 2020 act—that is why we are having this conversation—so not all of its provisions are in force. I am very hopeful that, once all sections of the act come into force, both the perception of what happens and what actually happens to victims of domestic abuse and children when they go through the family courts system are much better. That is what we set out to do.

I set out to ensure that the welfare of the child is paramount and to bring the child’s voice into proceedings, so a sheriff will be able speak to the child, ask them what they want and get feedback. Having the child welfare reporters and the register—which we are discussing now—gives us the ability to ensure that the people who do those jobs, which involves going to families to speak to children and other family members, are able to spot domestic abuse. People have to be trained to see things—it is not always obvious—and to act in a trauma-informed way, as you have just described, so that children have a better experience. We hope that that will be the case.

I am sorry—I cannot remember whether there was a second part to your question. Have I covered it?

We value the SLC’s important work in continually trying to update and modernise Scots law and in the reports that it publishes.

I do not know whether the committee is aware of this, but there was a working group involving the commission and parliamentary officials that looked at a more strategic way of progressing SLC bills through the Parliament. Traditionally the Minister for Community Safety would have done that, but there are, I think, some longer-term capacity issues with the committees. That said, we took forward five SLC bills in the previous five-year session, but we are looking at what more can be done in that respect. That work is on-going, but as there might be an announcement on the matter in the programme for government later today, I will not say anything more about it.

The referral of bills is not really a decision for a minister, but I know that the moveable transactions bill is certainly very important to stakeholders, who are keen for Scots law in that area to be modernised. We are very alive to the issue.

Yes. It does not feel like that long ago; I think that it was in September last year.

We are still working on analysis of the consultation responses, so I will have to get back to the committee once that work has been completed, if that is okay.

The responses point to broad issues that one would expect to come up, around how the child welfare reporters would operate and how they would be appointed. There is broad consensus that child contact centres need to be safe and welcoming. Disabled access to centres was one of the themes that came up.

With regard to timings, we hope to introduce secondary legislation in the autumn—probably around October—which will allow us to commence provisions.

We need to work through quite a lot with those issues. The matter of child welfare reporters was clearly a big part of the bill, so we spent quite a bit of time discussing it. We have a real opportunity to set training and standards for child welfare reporters and curators ad litem, and to ensure that the people who do those jobs are sufficiently trained to work with children in a trauma-informed way. Those are things that members of the committee would, I am sure, want the legislation to have. We still have quite a bit of work to do on getting feedback from the consultation into the regulations that we will introduce. Denise might be able to say more about what came through in the consultation.