JUSTICE COMMITTEE

Tuesday 23 February 2016

Session 4

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Tuesday 23 February 2016

CONTENTS Col. DECISION ON TAKING BUSINESS IN PRIVATE ...... 1 FAMILY LAW (SCOTLAND) ACT 2006 ...... 3 PETITIONS ...... 23 Self-inflicted and Accidental Deaths (Public Inquiries) (PE1501) ...... 23 Fatalities (Investigations) (PE1567)...... 23 Justice for Megrahi (PE1370) ...... 24 Emergency and Non-emergency Services Call Centres (PE1510) ...... 28 Inverness Fire Service Control Room (PE1511) ...... 28 SUBORDINATE LEGISLATION...... 30 Scottish Sentencing Council (Submission of Business Plan) Order 2016 (SSI 2016/55) ...... 30 Regulation of Investigatory Powers (Prescription of Ranks and Positions) (Scotland) Order 2016 (SSI 2016/56) ...... 30

JUSTICE COMMITTEE 7th Meeting 2016, Session 4

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

DEPUTY CONVENER *Elaine Murray (Dumfriesshire) (Lab)

COMMITTEE MEMBERS *Christian Allard (North East Scotland) (SNP) *Roderick Campbell (North East Fife) (SNP) *John Finnie (Highlands and Islands) (Ind) Margaret McDougall (West Scotland) (Lab) Alison McInnes (North East Scotland) (LD) *Margaret Mitchell (Central Scotland) (Con) *Gil Paterson (Clydebank and Milngavie) (SNP)

*attended

THE FOLLOWING ALSO PARTICIPATED: Professor Jane Mair (University of Glasgow) Professor Kenneth Norrie (University of Strathclyde)

CLERK TO THE COMMITTEE Peter McGrath

LOCATION The Mary Fairfax Somerville Room (CR2)

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before us and in obtaining evidence on this issue, I Scottish Parliament feel that this is yet another nail in the coffin. Justice Committee That is now on the record and I would like to write to Police Scotland to say that we would prefer—I will be polite—to have the redacted Tuesday 23 February 2016 documents in time for our next evidence session, bearing in mind that we are running out of time. [The Convener opened the meeting at 10:00] The committee does not sit during the last week of the session and we will soon be into purdah, when Decision on Taking Business in the Parliament will no longer be sitting. We want to Private deal with this before that happens. Do you agree? Members indicated agreement. The Convener (Christine Grahame): I The Convener: Thank you. I will suspend for a welcome everyone to the seventh meeting in 2016 couple of minutes to allow the witnesses to come of the Justice Committee. I ask everyone to switch in. off mobile phones and other electronic devices as they interfere with broadcasting, even when they are switched to silent. We have received apologies 10:02 from Alison McInnes and Margaret McDougall. Meeting suspended. Before I move on to agenda item 1, I want to refer to something that I am sure the committee is 10:03 not too happy about. Before Christmas, we asked Police Scotland for documentation on standard On resuming— operating procedures—a Police Scotland The Convener: I now move on to agenda item document and documentation from the 1, which is a decision on taking items 5 and 6 in Interception of Communications Commissioner’s private. Item 5 is consideration of a report on the Office. Police Scotland’s lawyers previously said legislative consent memorandum on the Armed that the documents could be provided with Forces Bill, and item 6 is consideration of our work redactions. Having requested an update on when programme. Do members agree to take those the committee would finally get to see the items in private? documents, we received an email on 22 February that said: Members indicated agreement. “This redaction work is intensive and requires to be accommodated in terms of daily business, and within the resources which are available from time to time. It is reasonably estimated to take another couple of weeks.” In other words, it looks like the documents will not be provided before the evidence session on 1 March with the chief constable and the head of the Scottish Police Authority. It may be even longer than that and, bearing in mind that we are running out of time, I am not very happy that Police Scotland is apparently deferring, to put it politely. I think that we should be pressing further on this matter. What do members feel? John Finnie (Highlands and Islands) (Ind): I do not think that the police are deferring at all; I think that they are being consistently obstructive. This committee knows better than others that Police Scotland is very adept at redaction; we have seen it in action at first hand. I suspect that Police Scotland is hoping that this will go away and that we will not come back, but I do not think that its response is acceptable. The Convener: I appreciate that this is not an agenda item—I am being reminded of that. However, I am in the chair, and given that we have had great difficulty in getting witnesses to come

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Family Law (Scotland) Act 2006 of the marriage—typically by death—it was suddenly discovered that the marriage was, for The Convener: Agenda item 2 is on the Family some reason, invalid. I think that Jerry Hall had that problem, although not in relation to . Law (Scotland) Act 2006. This is our main item of In that instance, Scots law might preserve that business today and it is our first evidence session marriage by applying the doctrine of marriage by on post-legislative scrutiny of the Family Law cohabitation with habit and repute—people were (Scotland) Act 2006. During the short time that we reputed to be married, so they were married. have available for this work, we will focus our attention mainly on two matters: provisions in the The amendment was introduced at the very last act on cohabitation; and provisions in the act on minute—I think it was actually at stage 3—without parental responsibilities and rights. much debate, which probably explains why you do not remember the discussion. It said that we would I welcome to the meeting Professor Jane Mair keep marriage by cohabitation with habit and from the University of Glasgow’s school of law, repute if the issue was important after one of the and Professor Kenneth Norrie from the University parties died, and they had married abroad and of Strathclyde’s law school. Professor Norrie, I their marriage was invalid according to the rules of note that you were the adviser to the Justice 1 the foreign jurisdiction. Fair enough. Committee when it looked at the original bill 10 years ago—I was not in the chair then. It is good The problem was that the provision related to to welcome you back although, according to your marriage but did not give any protection to civil written evidence, not everything that you had to partnerships that were entered into abroad. say was listened to. Committee members will recall that civil partnership came in at the end of 2005, which was I thank you both for your written submissions. just about the same time as the Family Law We will go straight to questions. (Scotland) Bill was being signed off in about Margaret Mitchell (Central Scotland) (Con): December 2005. At that point, it seemed to me to Good morning, panel. I wonder if I could ask create discrimination between married couples Professor Norrie about his submission, in and civil partners—in other words, between same- particular the section on marriage by cohabitation sex couples and opposite-sex couples. with habit and repute. Maybe he could elaborate a I raised the issue again, through the Equality little bit on this concept’s abolition not being Network, when the Marriage and Civil Partnership complete because of the provisions in sections (Scotland) Bill was going through in 2013. Again, a 3(3) and 3(4), which late amendment was introduced to extend the “effectively retain the concept where its application would concept of marriage by cohabitation with habit and protect the validity of marriages invalidly contracted repute to same-sex couples marrying abroad. abroad”. However, again, couples who civilly empartnered Having been on the original committee, I confess abroad were forgotten. If they got the forms wrong, that I did not remember that we had agreed to there was nothing that we could do about it. My that, so I would be very interested in your personal view has always been that if you cannot comments in that regard. even be bothered to get the process right, you should suffer the consequences, and we say that Professor Kenneth Norrie (University of for civil partners but give extra protection to Strathclyde): The issue arose at a very late married couples. My point is: either give them the stage, because in the original bill—and certainly same or give them neither. as the bill was going through—the concept of marriage by cohabitation with habit and repute Margaret Mitchell: I think it is a point well made was simply being repealed. It was deemed to be and certainly something to flag up in the scrutiny entirely unnecessary since its primary function process, which already, even on that point alone, was to give certain benefits—and obligations—of has proved worthwhile. I would probably tend to marriage to unmarried couples who had not gone agree with you: if a marriage has been invalidly through a form of marriage. So, with regard to the agreed abroad there is a question about whether cohabitation provisions, the original aim was we should ratify it in this country. That is perhaps simply to abolish the concept completely. something for further debate. Then, at a very late stage, a Government Could I also ask both panel members whether, amendment was introduced to meet the concerns under family law, we should be looking at of at least one committee member who thought formulating less adversarial procedures for that it would be useful to retain the concept in a determining orders for parental responsibilities and very unusual scenario: one in which you had rights or for contact and residence? married abroad, assumed that the marriage was Professor Jane Mair (University of Glasgow): valid, come back home and spent your life The evidence is that, to a very large extent, together as a married couple and then, at the end

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couples already make agreements about children. should make reference to my registered interest A relatively small proportion of such cases come as a member of the Faculty of . to court or reach final adjudication in court so, First, I will turn to the definition of “cohabitant” in although I completely agree that there should be section 25. Since the Marriage and Civil further encouragement of non-adversarial Partnership (Scotland) Act 2014, that is now approaches, I think that agreements already deemed, among other things, to mean that section happen. In some research that I did a couple of 25(1)(a) must be read as extending to two people years ago, we were looking at separation of the same sex who are living together or as if agreements, and certainly almost half of the they were married to each other. Professor Norrie, sample that we looked at included arrangements you made the comment: about children—those were just part of the agreement. Now, getting that agreement might “The substance of the law is clear but, requiring to be have been a very contentious process; read in the light of the 2014 Act, is obscure.” nonetheless, the evidence shows that couples are I do not want to put words in your mouth, but do I already making such agreements to quite a large detect that you mean not that the law cannot be extent. interpreted but that it needs tidying up if we are Margaret Mitchell: Maybe I have a skewed looking at this whole area? view, but for anyone who comes to me, the Professor Norrie: Yes, I think that is fair. It is position seems to be less than amicable, and relatively straightforward, I think, for lawyers to mediation or alternative dispute resolution, in the understand what is going on, but it is far less easy interests of the child, has not been entered into or for non-lawyers to look at one piece of legislation even considered. that refers to another piece of legislation, marry Professor Mair: There does seem to be a real them together and come out with the result. So, split. For those for whom it becomes contentious, yes, that comment would be fair. it becomes very contentious. Roderick Campbell: Professor Mair, have you The Convener: I know, because I used to be a a view on the definition? family lawyer. The ones who dig their heels in Professor Mair: First of all, I agree with that make it worse. point. It would be a lot clearer if the law just said “a Professor Mair: I think that is right. couple who live together as if they were husband and wife”. The Convener: I do not know if you want to comment on that, Professor Norrie. Roderick Campbell: I will move on from definitions to section 28 and, in particular, property Professor Norrie: The only thing that I was rights. I do not know whether the witnesses have going to add was that although it is a really had the opportunity to look at the submission from important question, I would slightly reformulate it, Kirsty Malcolm of the . She to ask whether there was anything in our current talks about some guidance having come from the law that disabled people from coming to Supreme Court in the case of Gow v Grant but appropriate agreements. I think the answer to that says, in her second paragraph: is probably no, and that there is nothing in our current legislation that specifically sets couples up “It is impossible in my view to provide any further guidance within the legislative framework that would as adversaries, apart from the whole facilitate the understanding or application of section 28 process. I recall Margaret Mitchell lodging an because, as was identified at the time these provisions amendment to the bill—which, unfortunately, was were in contemplation, each case will turn very much on its not agreed to—on the whole divorce issue. We own facts and circumstances.” have a number of processes, both before a case Are there any comments on that? gets to court and during the court process, to encourage couples to come to some sort of agreement about children. The bottom line is that 10:15 some separated couples will never come to an Professor Norrie: The Government policy agreement. when the 2006 act was going through was very The Convener: I accept that the question went clearly that cohabitants must be treated differently down the road of mediation, but can I get from married couples. One of the consequences of members to focus on cohabitation and parental that—although not the only one—was that courts responsibilities and rights? The focus is very were to be given a far greater degree of discretion narrow, albeit important. Members should just in dealing with the financial implications of focus on those two particular issues. separation for cohabitants than they were for married couples. Sheriffs and judges were very Roderick Campbell (North East Fife) (SNP): deliberately given the widest possible discretion, Thank you, convener. Perhaps before I start I and the assumption behind that was that

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cohabiting couples present a huge array of reason why the approach to cohabitation should different personal circumstances and that it is not be similar to that for marriage. However, that inappropriate to have a set of rules that applies to will take a fundamental decision of principle: do we them all. I am not convinced by that argument; it want to treat cohabitation and marriage in the seems to me that married couples also lead their same, or in a similar, way? lives in a very individual way—and they should be Roderick Campbell: I take that point on board entirely free to do so. as well as the point that it seems to be self-evident We give quite detailed guidance on the division that where there is discretion, it is very difficult for of married couples’ assets, and Professor Mair’s lawyers to advise as to what the outcome will recent research shows clearly that that works very actually be. Kirsty Malcolm indicated that there is well in Scotland. However, for cohabitants, sheriffs an absence of published judgments—that material are allowed to do what they think is appropriate in is not available—so it is really difficult for lawyers, the individual case, which makes it virtually but she also says: impossible for practitioners to give any advice to “Whilst heavily criticised, it is difficult to see what might couples and actually creates contention. If you take the place of section 28, and because there is a need, have a piece of legislation that deliberately allows in my view, for the possibility of a financial award in judges to do what they think is fair in the individual appropriate cases, albeit difficult to work with, the current case, you are inviting parties to take up cases on arrangements provide a remedy that was missing before.” the off-chance that they will get a good deal. It She then agrees that we could perhaps look at seems to me that it would be far more sensible if things other than the payment of capital sums. Do we gave virtually the same guidance to the two you agree that it would be difficult to replace different types of couples—if, indeed, they are so section 28? different. Professor Norrie: I do not agree at all. It is right Professor Mair: I would very strongly agree that section 28 has provided a very valuable with that. The cohabitation provisions are very remedy where none existed before—I absolutely much based on an understanding that cohabitation agree with that. However, the starting point should is in some way different from marriage. There is a be section 9 of the Family Law (Scotland) Act wide range of different research—social policy, 1985, which is the provision that deals with social science and anthropology-type research— married couples. It would be a very useful exercise that all tends to indicate that there is a huge to go through the five justifications for making a variety of types of relationship among all kinds of financial award that apply to married couples and couples. For me, there is an underlying distinction ask: is this appropriate for cohabitants? If the between marriage and cohabitation in terms of the answer is yes, then that principle should apply; if legal relationship that I do not think is borne out in the answer is no, the principle should not apply. how people live their lives. We have a model that we could tap into; we do not In Kirsty Malcolm’s submission, in particular, need to reinvent the wheel. what she was saying was that, if we stick with the Roderick Campbell: Professor Mair? basic system that we have at the moment, it is perhaps difficult to see what further guidance can Professor Mair: I would agree. I disagree with be given to the courts. I agree with Professor Kirsty Malcolm’s view on that; there are ways in Norrie that if we go back and look at the starting which section 28 could be improved—it could be in point, the question is: do we think that marriage is a more minor way. Put simply, the provision is fundamentally different from cohabitation? If we do poorly drafted, it is complicated and it is difficult to not, very similar guidance should be given for understand how the various subsections relate to cohabitation as is given for marriage. one another, so even if we just stuck to the two basic principles—that it is just about economic The courts, family lawyers and couples advantage and disadvantage, and about on-going themselves are now so used to financial provision childcare—the section could be a lot clearer. The on divorce, and the Family Law (Scotland) Act other approach, which I would favour, would be to 1985 is so clear and so well understood, that it look at it again: to go back to section 9(1) of the seems to work very easily. As Professor Norrie 1985 act and consider all of the principles. said, that is the finding of the research that I have been doing recently about cases from the past Roderick Campbell: Thank you. thirty years: everybody understands the law, it The Convener: How far would you go? Given works really well and that, in turn, encourages that we have such a varied, and quite established, couples to reach agreement without going to court. set of relationships in society now, rather than The 2006 cohabitation provisions just stand out doing things piecemeal, has the time come to in such stark contrast to that very clear legislation remove all distinctions between same-sex and make it even more difficult for courts and marriage, heterosexual marriage, cohabitation and sheriffs and judges to operate. I do not see any civil partnerships, in terms of financial

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arrangements and contact with children, obviously states have more or less got rid of the differences, subject to evidence on cohabitation and other certainly in relation to the financial situation. You matters? might also look at the statistics to see whether the number of people who get married in those Professor Mair: I think that the time has countries has gone down. At the moment, the definitely come to consider that. Whether we answer is no—take from that what you will. decide to do it or not is for debate, but we have However, that is a very important political and reformed a lot on a piecemeal basis for a very long social question rather than a precisely legal one. time, and for good reasons, but have not gone back and looked at the whole picture. The Convener: You did not mention contact and residence with children. Does the position on For family law purposes, we need to decide proving rights vary in different relationships? what is the purpose of the regulation in the first Would you extend having the same tests as for place: what are we trying to achieve? Are we marriages beyond consideration of financial trying to protect, in which case the position of all arrangements to consideration of contact and these relationships is very similar? Or are we residence orders? trying to send some sort of message and say to couples that we would rather they entered into one Professor Norrie: Yes, but we more or less do sort of relationship rather than another? We have that in any case. to decide what family law is trying to achieve. I The Convener: We do that now. Thank you. definitely think that it is time to look at the provision, because different relationships have John Finnie: I have some questions about been introduced into the law for different reasons children. Professor Sutherland and the Law and without any clear underlying principle. Society of Scotland advised the committee that the definition of “child” in section 28 of the 2006 act is The Convener: Professor Norrie? narrower than in the comparable provisions Professor Norrie: I would agree with that. The relating to divorce and the dissolution of civil only thing that I would add, and it actually goes partnerships. The suggestion is that that is not back to the earlier point about the definition in satisfactory. section 25. One of the ways that the ad hoc I understand that section 28 applies if the child approach plays out is that every time we have new in question is the child of both cohabitants; it does legislation dealing with cohabitants, people look at not cover the child of one cohabitant who is cared the definition and add tweaks to it. The new for by the other cohabitant. Is that a gap that succession bill—not the one that you have just needs to be filled? passed but the next, more fundamental succession bill—will tackle succession rights for Professor Mair: It is another example of cohabitants and what they should be, and the inconsistency. Different pieces of legislation have current proposals have a definition based on the been reformed at different times. In family law in same factors, but with a slightly different list from Scotland, the child is often taken to be the legal the one that we currently have in section 25, which child of the couple or a child who is accepted into will still presumably apply to section 28. the family. There is an anomaly in the cohabitation provisions, in that section 28 applies only when Also, of course, this act is not the only act that both cohabitants are the parents of the child. gives legal consequence to cohabitants; we have the Matrimonial Homes (Family Protection) In other situations, such as in relation to the (Scotland) Act 1981, which again talks about living provision of aliment, an adult owes an obligation to together as husband and wife, without any list of a child who has been accepted as a child of the factors. Now, if you have got one piece of family. It would be more consistent if “child” was legislation with no list, another with a bit of a list, defined in broader terms for the cohabitation and another with a long list, you could end up with provisions. the ludicrous situation of having to tell somebody Professor Norrie: It is a great tripwire in a that they are a cohabitant for one purpose of the law but not for another. What we should be doing family law exam to talk about the child in relation to the application of section 28, but if it is a good is taking an overview and saying in law what a tripwire in an exam, that generally means that it is cohabitant is for all statutory and other purposes. bad law. The Convener: Is there not a point of view that A deliberate decision was made when the 2006 you devalue marriage by doing that, and that if you simply want to ensure your rights, marry? act was going through about what should happen with a stepchild. As far as I recall, it was felt that, if Professor Norrie: That is a political debate that a person marries somebody who already has a is worth having. It would presumably involve child, that person undertakes obligations to that examination of the situation in other countries child as well as to the person he or she is such as Australia and New Zealand, in which most marrying. If, however, the person simply moves in

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with someone who already has a child, the person changed as time has gone on. We do not have a may be undertaking obligations to the other party, family law code; we have bits and pieces of but there is no legal relationship with the child. legislation, each very good in itself and each reflecting the feelings of the time, but now there is The basis of the distinction relates to what the very little coherence. obligant is undertaking by entering the relationship. Should the parties separate and the John Finnie: Okay. Thank you very much. child remain with the non-parent, it leads to a Gil Paterson (Clydebank and Milngavie) really unfortunate conclusion, although admittedly (SNP): How would it work when two people it would be an unusual situation. The non-parent cohabit, of whom one is a parent and the other is would have no claim under section 28 for a share not, and there is a third party who is the other of the childcare costs, although they are bringing parent? Where would the other original parent’s up the child. They can cover the costs through rights fall if, as you suggest, the rights are to be child support and that sort of thing, but there is no given to the cohabitees rather than to them? additional claim under section 28. That is an unusual scenario, but it leaves the child in an Professor Norrie: The original parents—the unfortunate position. legal parents—of any child have financial obligations to that child. Whether or not the parent is living with the child, that parent will have 10:30 financial obligations. The person who is living with In child law, the starting point ought always to the child has financial obligations, whether or not be the child, not the parents and the obligations to they are a parent, so there could be three people each other that they feel that they have with financial obligations to the child. undertaken. The starting point should always be the child and what will give the best result for Section 28 tries to recognise the fact that, if them. If the child is the starting point, it seems to someone is actually bringing up a child, they will me that the best result is to treat all children have greater costs than the alimentary cost of equally, whether the two adults they live with both feeding, educating and clothing the child. They will happen to be their legal parents or only one is be required to put on birthday parties and take the their legal parent. child to the football—they will have to spend more. Section 28 tries to share those additional costs John Finnie: Thank you. It was my fairly, and although it does that fine for a child in a understanding that everything was focused around situation where both cohabitants are the parents, it the child’s welfare being paramount. That seems does it less well if the second parent is not to be the case in that particular tripwire somewhere else. instance. Professor Mair: My understanding is that Professor Norrie: In child law, the welfare of section 28 is primarily about the adults. The the child is paramount, but that particular provision classic situation would be a cohabiting couple with is not seen as part of child law; it is seen as to do a child who is the child of the man. The couple with adult relationships, so the welfare of the child splits up and the woman continues to care for that does not come in. Again, that is part of the broader child—the child is not her child but she continues issue that Professor Mair was talking about. Let us to have the economic burden of caring for them. step back and look at it as a whole instead of Section 28 would address any on-going burden on taking it piecemeal and making an artificial her in terms of reduced working, impact on distinction between the child’s relationship and the earning and that sort of thing. However, support adults’ relationship. for that child would be separate; section 28 is John Finnie: Many people will be surprised that more about the adults. there has not been some consolidation. There Gil Paterson: You have made it clear that the have been a lot of initiatives—getting it right for birth parents still have the same financial every child, for example. Is there is a requirement responsibility. for a broader consolidation of provisions affecting the child across our civil law? Professor Mair: Yes. Professor Norrie: In 1992, the Scottish Law Gil Paterson: That does not change. Commission suggested a broad consolidation of Professor Mair: No. the whole of family law, and it produced something that was almost a draft code. The Scottish Gil Paterson: Thank you. That explains it well. Parliament and the Parliament in London have Elaine Murray (Dumfriesshire) (Lab): Section spent the time since then picking out bits and 24 of the 2006 act amended section 11 orders pieces and building something up. However, the under the Children (Scotland) Act 1995. We have times today are different from what they were in had a variety of evidence from witnesses on that. 1992, and our motivations and values have Scottish Women’s Aid feels that the provision

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could work but is not being implemented properly. to that is that, if we look carefully at the wording, Others say that there should be a more we see that it did not actually promise much. comprehensive list of factors that the court should Professor Mair: I am sorry to disappoint you, take into account. Families Need Fathers feels but it turns out that we do not disagree. that the provision is being abused by people who do not want fathers to have contact with their Professor Norrie: I thought that you liked lists. children. What are the witnesses’ views on it? Is Professor Mair: No, I do not like lists. further amendment necessary? The Convener: Well, that is a tiny Professor Norrie: That may be an issue on disagreement. which Professor Mair and I take slightly different views. Professor Mair: It was important to have further The Convener: Good. We like it when clarification of what domestic abuse might mean, witnesses fall out. the different ways in which it might operate and the different impacts that it might have within a Professor Norrie: We will not fall out; we might family. Therefore, I think that the motivation behind take politely differing views. that was really good, and it is good to have that detail. I am not a great believer in lists of factors. Section 25 of the 2006 act contains a list of factors However, I agree that having that clarification in that we take into account in defining “cohabitant”. section 11 of the 1995 act skews that section. As It has often been argued that, under section 11 of Professor Norrie said, we have a very clear the 1995 act, as in the equivalent English concept of welfare, but we do not have a list of legislation, the welfare of the child is paramount, factors. Section 11 therefore looks a bit strange. and here is a list of factors that the courts have to We have spoken about tripping up students, and it take into account. trips them up all the time, because they pick up on it and think that it is something different from However, I am not persuaded that such lists are welfare. You have to tell them, “No, it is about valuable. There are two problems. First, they lead welfare and about trying to give the courts further to a tendency for the courts simply to tick the clarification and guidance on how to assess boxes and say, “Yes, I have taken account of A, B, welfare.” I do not think that the format of section C or D.” Secondly, they tend to emphasise the 11, as amended, is particularly helpful. statutory, listed factors as opposed to any other Nonetheless, I think that it is very important to factors that might arise in an individual case. have as much awareness as possible about the When the 1995 act was first passed, section 11 potential impact of abusive relationships within had no such list. We still do not have a list; slightly families. anomalously, the 2006 act added in one factor—it There is very little evidence to show how the is broadly one factor, although it can be broken provision is used by the courts and what impact it down—that the courts should take into account is having. I am familiar with research by Kirsteen when determining the welfare of the child. Mackay, who looked at child contact cases and Speaking very broadly, that factor is domestic how children’s views have been treated in those abuse. That one factor—it is not additional; it is a cases, specifically in the context of alleged abuse. factor in itself—is specified. She found that children were not listened to as The question that was asked but never often as they might have been and that, when satisfactorily answered in 2006 was whether there children specifically raised issues of abuse, the was any evidence that the courts were court quite often went ahead and ordered contact, systematically ignoring domestic abuse as a although the children specifically said that they did factor. I do not recall any proper evidence being not want to have contact. advanced to say that that was the nature of the Elaine Murray: In your view, is there a better problem. Perhaps that was not the purpose of the way of drawing the court’s attention to the additions to section 11. The purpose was probably importance of considering the potential for abuse? a more symbolic one of giving a message that, if If you do not particularly like the way that that is there is domestic abuse in the family, that is a done in section 24 of the 2006 act, is there a really important matter that the court will take into better way of achieving the aim of getting courts to account. However, its practical effect has not been take domestic abuse into consideration? The particularly great. There have been very few Abusive Behaviour and Sexual Harm (Scotland) judicial discussions of the provision and there is Bill is under consideration in the Parliament, and certainly no evidence that court practice has there will probably be further legislation on changed in any noticeable way. Therefore, I can coercive control in the new session. Is the understand people who argue that the provision provision just in the wrong place? Should it be in promised more than it has delivered. My response guidance? Is there a better way of doing it?

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Professor Mair: I suppose that it ultimately 10:45 comes down to how all those things are put into Professor Norrie: Whatever the law says, you practice. It is about education and understanding. I will never completely resolve the problem that was struck by a sentence in one of the some people will lie. I do not know the submissions—I think that it was from percentages, but there have certainly been cases Grandparents Apart UK—that stated that the law in which allegations either of domestic abuse or of is generally fair, but that there is a problem with neglect have been raised and, after hearing the the way that it is put into practice. It is dangerous evidence, the has held that the person who to always go back to the law and ask how we can made the allegations was not truthful. That is, of make it better, because the problem is with how course, unfortunate, but it shows that there is a the law is put into practice. possibility that people will raise such allegations The provisions in section 11 of the 1995 act do unjustly. Nothing in the legislation either not seem to be in the right place. Perhaps they encourages or discourages that. should have been in a separate section on their The Convener: Yes—you are saying that that own. That might have made their purpose clearer. will happen whether or not the issue is in the Otherwise, I imagine that it is just a question of legislation. training and education for family lawyers, courts, judges and sheriffs. I do not think that there is any Christian Allard (North East Scotland) (SNP): magic way of changing the situation. Section 11 My question is a supplementary, as I would like to has become quite unwieldy. It highlights domestic understand a little bit more about that. I thought abuse, but not necessarily in a good way. It that we would be talking about the 2006 act this perhaps makes it more contentious. morning, but it seems that you are talking about a lot of other acts as well, such as the 1985 act and The Convener: Is there any evidence that the 1995 act. mischievous parties might aver that in a writ? There might be issues to do with contact or The Convener: In fairness, that is because they residence involving children who might have said all interact. We cannot just pluck out one issue that that is what happened to them. I do not know; and not say that it refers back to previous I am just asking. If section 11 is skewed, as you legislation. said, they might want to skew what they put down Christian Allard: That is my question. The in a writ. witnesses have talked about piecemeal legislation. Professor Mair: I mentioned the research that If we work only on the 2006 act, will that be was carried out by Kirsteen Mackay. She found another example our dealing with legislation in a that when children gave the view that they did not piecemeal way? Do we need to review the family want contact and raised the issue of domestic courts altogether? abuse, a significant proportion of those children Professor Norrie: Most of the 2006 act amends were nevertheless made subject to a contact other pieces of legislation. The only part that order. When they said that they did not want stands substantively on its own concerns the contact and did not mention domestic abuse, they cohabitation provisions, but there are also various mostly did not have contact. other pieces of legislation that deal with aspects of The Convener: So you are saying that the cohabitation. Our family law, which is nearly all sheriff was taking a broad and proper view of all statutory, is contained in a whole variety of the aspects in the test that the welfare of the child different pieces of legislation, going back decades is paramount. and decades, some of which interlink quite nicely and some of which clash. That takes us back to Professor Mair: I think that Kirsteen Mackay Professor Mair’s original point in her written was suggesting that perhaps, when domestic submission. The time has probably come: it would abuse was also raised, that raised a doubt in the be useful if the Parliament took the decision to court’s mind and in the sheriff’s mind that maybe stand back and look at family law as a whole in the the child was being unduly influenced by the other modern world and to try to work out an appropriate parent. structure for all the various ways in which people The Convener: It is a difficult and sensitive lead their family lives today. area; I accept that. However, I was thinking about Christian Allard: I agree that looking at the neglect of a child, such as not washing or feeding 2006 act in isolation may not be the best thing to them. Surely that would come out in court when do. parents are arguing, or when the court is concerned—even if the parents are not arguing— Professor Mair: It would be much better to take about the welfare of the child. time to look more broadly at how the whole system works. For a period of time, particularly in the 1980s and 1990s, Scots family law was moving

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closer to becoming codified. It was becoming The Convener: However, if the court takes it much easier for everyone to understand, and that into account, it cannot then make an order for a was positive. We have drifted since then and there test. have been lots of different amendments, so it is Professor Norrie: Although they can in criminal definitely time to step back and review the area on matters, our courts currently cannot, in the civil a broader scale. law, demand or require someone to consent to the Christian Allard: Is there a way of drafting taking of a DNA sample not just from themselves legislation to ensure that it is more easily but from a child. Professor Sutherland suggests amendable than it has been in the past, so that it that a simple amendment would be to give the can follow changes in society? courts the power to require the taking of DNA samples. Professor Norrie: I would have thought not, actually, because different Parliaments with I have some hesitation about that, because civil different political make-ups will have different litigation has always been based on the views. Family law is a really political subject. You proposition that you have no obligation to help can take a very socially conservative view of your opponent. On balance, however, if what is family or a very libertarian view of family. Different needed for a DNA test is such a minimal invasion Parliaments will want to do different things. of a child’s bodily integrity as a mouth swab or a hair sample, and if that gives the truth, maybe my If we had a full structure—what lawyers tend to concerns are less important. call a codified system—for family law, it would become more difficult to amend it. What we have The Convener: With that hesitation, you would at the moment is no real structure but all sorts of agree— different pieces of legislation, and we get along Professor Norrie: I would probably support with it fine whenever there is an amending statute. Professor Sutherland’s suggestion that courts The 2006 act is a perfect example of that. I have should have the power to require the provision of not counted the pieces of legislation that it DNA samples. amends, but it has to do this, that and the next thing. We get by in that way. I am not sure that we The Convener: However, the court could also can make the legislation itself easier to amend in take the view that, given the evidence or the the future. circumstances before it, it would not take even that step. Is that correct? A test would not be done in The Convener: I have a question on something all cases on the application of a father. that we have not touched on yet. It is, in my view, strikingly unjust that an unmarried father is Professor Norrie: Absolutely. We occasionally permitted to register paternity only at the discretion get such cases. There was a case in the sheriff of the child’s mother. Even if the father wants to court two or three years ago in which paternity have a DNA test, the mother can block that. There was in question and no DNA was available, for might be good reasons why the mother would not whatever reason. The court took evidence on the want the father to be registered, but in some sexual relationship between the parties, on circumstances that might be blocked out of—I am whether the dates worked out and on the physical trying to find the right word—vindictiveness, or not similarities—different skin tones were involved— for the right reasons. How would we get around and other evidence of that nature. that? How would any future Parliament that was looking at family law get around that issue? In my The court always has the power to take other view, it needs to be dealt with. factors into account to build up a case. The thing with DNA is that the evidence is so certain—it Professor Norrie: I think that Professor leaves absolutely no room for doubt and is easy to Sutherland, in her written comments, makes a obtain. DNA evidence is not without financial cost, suggestion. Our current legislation, which is of course. almost never used, says that, if somebody refuses Professor Mair: It is a very difficult area. There to give consent to the appropriate DNA testing, the court may take that into account in determining has always been an argument that the courts should not be able to require anyone to submit to where the truth of the matter lies. The English testing. I agree that it is such a minimal invasion courts have very strongly said that, if somebody that perhaps it is not so bad. When considering refuses, that means that they have something to the whole area of paternity and the registration of hide. The Scottish courts have resisted that approach and have interpreted the legislation the father, it is important to bear in mind that the exactly as it is worded—the court may take the issue is about the welfare of the child. We must keep going back to that point. matter into account, without there being any implication as to how it is taken into account. The Convener: Dr Sutherland makes the point in her submission that the court’s decision should be

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“subject to the usual test that the child’s welfare is the seem to be saying that the court should be able to paramount consideration”. order the testing of a child’s DNA. That is what I meant about the caveat for the Professor Norrie: I do not really want to court: even if the law in Scotland changed and the commit myself. court could make an order that DNA be taken, it would be subject to the test in respect of the The Convener: You did earlier, so now you are child’s welfare. Would that satisfy you? backtracking. Professor Norrie: Can I jump in here? There is Professor Norrie: On balance, I would probably a slight risk. We should not take the welfare of the go that way. child into account in terms of avoiding the truth. The Convener: What about you, Professor The welfare of the child should be an important Mair? Can I pin you down on that? consideration in determining whether to take the sample, but that is all. We should not open Professor Mair: No. ourselves to an argument that it would be good for The Convener: You are saying that you do not the welfare of the child not to know. want me to pin you down. The Convener: In other words, you are saying Professor Mair: I do not want to be pinned that we should not prejudge. You are saying that down on that. that is all we can do and after that, any rights that might flow would flow from the test. The Convener: You are on the fence. Professor Norrie: They would flow. Professor Mair: I am. The Convener: Professor Mair, would that Gil Paterson: Before I ask my substantive satisfy you? question I have another question on that very point. We know that when it comes to separation Professor Mair: Probably. I have hesitations and divorce, in many—not all—circumstances, about saying that the court should be able to order there is a tendency for people to harass the other a test. party. The Convener: What are those hesitations? If there were such a provision, would it not be Professor Mair: We would not want the court to used for harassment purposes? I am thinking of be able to compel any of us to submit to DNA someone who is a third party—in other words, testing. That is the principle. That is why I have someone who had previously cohabited with one slight reservations. of the parties but who is now in another relationship, whether they are cohabiting or have The Convener: But we have capacity and a got married. Would that not happen? Would the child does not. Would the court not just be child not be used as a tool to harass one of the stepping in where the person did not have parties? It is normally the woman who is harassed capacity? in that way. Professor Norrie: Not necessarily. To get the full DNA analysis you need samples from both 11:00 parents. For example, if the father is trying to deny paternity, rather than establish it, he might say, Professor Norrie: I could not say that that “You’re not getting any of my DNA”. Equally, there would never happen, because people can be very might be a situation where the court wants to order vindictive, particularly after relationships have a person to undergo DNA analysis—for example, broken up, and they can use children as weapons. if it relates to a claim for aliment or child support. Whether the use of the provision would amount You would have to establish who the father is, and to harassment is a matter of definition. Now that I if he is denying paternity and refusing to give a have committed myself to it, I suppose that my DNA sample, you might well want to argue for an defence would be that a DNA test is a minor order. If you can argue for such an order for a invasion that will quickly give a result and resolve child I see no reason why you would not want to the matter one way or the other, so why not argue it for a competent adult. provide for it? The Convener: Yes. The Convener: Thank you for that. Professor Norrie: That raises even more Gil Paterson: My substantive question is about hesitations. Do we really want our courts to require cohabiting couples and the one-year time bar. Are people to help their opponents in civil litigation? similar restrictions put on married couples who The Convener: It is the proverbial legal can of have separated, prior to divorce? I imagine that, if worms. In solving one thing, you would create there was to be a court case on a divorce, all the another lot of problems. However, on balance, you issues would be raised in that action. Are any

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restrictions put on folk who have separated in the time limit at all, as is the case for people who are lead-up to divorce? married and in civil partnerships? Would it be better and tidier to treat everyone in the same Professor Mair: With divorce, if the parties way? want to apply to the court to have issues concerning financial provision dealt with, they do it Professor Norrie: There is an attraction to that, at the time of divorce, but there could be a long but one of the problems is that a married couple period of separation before they get to the point of has to go to court in any case to get divorced, going to court for their divorce, so I think that the whereas a cohabiting couple does not need to go two situations are quite different. to court. Cohabitants do not need the state’s permission to separate, whereas married couples With cohabitation, because of the one-year limit, do, so they will be going to court in any case. It there is some evidence to suggest that couples might be two years after separation, having built have to make a decision much more quickly. If up the ground for divorce after two years of non- they want to apply to the court, they have to do it cohabitation, or it might be decades and decades quickly. They are very conscious of the time limit. later, but if they want to divorce, they must go to A number of family law argue that it is court. That then becomes the natural time to raise more difficult to get cohabiting couples who have the financial claim. That is the sense in which separated to reach some sort of agreement, there is no time limit from the point of separation; it because at the back of their mind there is always is done naturally at the time of divorce. That does the feeling that they if they want to go to court, not happen with cohabitants, who do not go to they have to do it before the one-year time limit is court unless they have a financial claim to make. up. With people who are divorcing, it would be much more normal for them to try to reach In the civil law generally, we have a three-year agreement before they get to the point of applying limitation for raising all sorts of actions. I would to the court for their divorce. The two situations have thought that a three-year limitation would be are not comparable. There is not the same appropriate, rather than a slightly anomalous two- pressure on divorcing couples. year period—given that there is no connection with the two years of non-cohabitation as a ground for Gil Paterson: Something else kicks in with divorce. married couples. Although it is not frequent, some married couples separate and then get together The problem is even more difficult in relation to again. The one-year period for going to court section 29 of the 2006 act, which is about making means that, in effect, the court is stopping a a claim on death, because the cohabitant has only separation failing. It seems odd that the effect of six months in which to do so. That creates real that is recognised for married couples but not for problems in practice: people who have gone cohabitees. through the grieving process go to their after six months, only to realise that they have lost Professor Mair: It might have an impact on the all possible claim. The time limit problem is even relationship. In some of the more recent court worse under section 29 than it is under section 28. decisions, consideration has been given to the date on which the cohabitation comes to an end. Gil Paterson: Do you want to comment, In at least one case that I can think of, the sheriff Professor Mair? took a very commonsense, real-life approach and Professor Mair: I agree. The time limits are too said that the reality was that if a couple is moving short. However, there has to be a limit, for the towards separation, they probably live apart and reasons that have been explained. then get back together for a while. The sheriff decided that the date of separation was much later The Convener: Yes. People have to know what than the date that the man was arguing for. The their financial position is. man argued that the date of separation was the Thank you both for your evidence, which was point at which he first left the house, whereas the court decided to be a bit more generous and a bit intriguing. I hoped that you would disagree a little, more realistic, in recognition of the fact that that is and you fulfilled that hope. We will take more evidence on 8 March, but we have not yet decided just the way that relationships sometimes go. who our witnesses will be. We will report or leave The one-year limitation potentially has an impact something for our successor committee in the next on what decisions couples might make about the session of the Parliament to take further. I think final separation, and it certainly seems to put that we all agree that family law really must be couples under some pressure to raise an action, looked at again in the next session, given that even if they do not pursue it. circumstances have changed since—well, since 1985, Christian. Gil Paterson: There is a suggestion that the period should be doubled to two years. If a change 11:08 is to be made, do you think that there should be no Meeting suspended.

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11:10 elected. If possible, we should hold the petitions over to the next session and put a note in our On resuming— legacy report suggesting that, if the present Petitions Government is re-elected, we will have reached the end of the road. As Roddy is, I am satisfied, but I suggest that we hold over the petitions. Self-inflicted and Accidental Deaths The Convener: That is a fair point. John Finnie (Public Inquiries) (PE1501) looks as though he wants to say something. Do you? You are keeking over your glasses. Fatalities (Investigations) (PE1567) John Finnie: We should keep the petitions The Convener: We move on to item 3, which is open. The minister’s response, particularly on the consideration of five public petitions that remain third page, is reminiscent of all the phrases that open. We will go through them in turn. we heard in the evidence that we took on Patricia PE1501 and PE1567 relate to investigations into Ferguson’s bill. On an additional review process, unascertained deaths, suicides and fatal the response questions accidents. The latest response from the Minister “where the funds to support it would come from.” for Community Safety and Legal Affairs is That is not a helpful comment. It also states that provided in annex B of paper 4. The petitioner of the time taken would be PE1501 has responded to the minister’s letter, and that response is provided in annex C of paper 4. “likely to extend the period of distress for bereaved families”. I ask members for their views on what we should do with the petitions. It would be helpful to keep the petitions open, not least because of the ultimate reference to the Roderick Campbell: Are we dealing first with Police Investigations and Review Commissioner. PE1501 and PE1567? Paper 4 states: The Convener: Yes—that is what I said. “The petitioner accepts that his individual case was upheld by PIRC but, as highlighted above, he argues that Roderick Campbell: Thank you, convener. I no lessons appear to have been learned as a result.” note the minister’s comments, and particularly where he states: There are still significant public frustrations about a number of cases. “If they are not satisfied with a decision not to prosecute ... they may seek a review ... under section 4 of the Victims The Convener: I am getting the signal that the and Witnesses (Scotland) Act 2014.” committee wants to keep the petitions open. He mentions that there is also potential to go to Christian Allard: I was happy to close the judicial review, and adds that petitions, but I am content with what is suggested. “The Charter for Bereaved Families will also introduce a The Convener: I think that it is appropriate to process of review in relation to decisions taken on whether to hold a FAI.” keep them open and to refer to them in our legacy paper. Those are reasonable safeguards. I am not sure that we can realistically take the petitions forward. Gil Paterson: I hear what John Finnie says. Is it I am certainly not keen on taking evidence from possible to accommodate his view and say that, if the petitioners at this stage in the session. the Government is re-elected— The Convener: Do you want to close both The Convener: We cannot put that in our petitions? legacy paper. We cannot make presumptions like that. I think that the legacy paper should simply Roderick Campbell: Yes—that is my instinct. If say that the petitions have been kept open— somebody wants to refer them to the next justice committee, I could live with that. Gil Paterson: I am trying my best. Okay. The Convener: Petitions will continue into the The Convener: I think that that is fair enough. next session of Parliament. They do not fall in the way that legislation does. Justice for Megrahi (PE1370) Gil Paterson: I am entirely sympathetic to what The Convener: We move on to PE1370, on the Roddy Campbell suggests. The Government has Megrahi conviction. As I have scolded Police said that it is not minded to change its mind on the Scotland, I will, in fairness, also scold the Lord matter. The only thing is that we are close to the and the Crown Office and Procurator election, and it might be a wee bit arrogant to Fiscal Service. We asked the on 5 assume that the present Government will be re- February to respond to Justice for Megrahi’s latest submission.

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This morning, at 9.45, when I was sitting here he alleged was a misleading statement issued by COPFS getting ready to chair the committee, a response media relations in March 2012 about the Lockerbie arrived. That is not good enough. The committee investigation. The media release followed the publication of Mr Ashton’s book “Megrahi: You are my Jury”. Mrs Dyer is again being expected to take into consideration considered the correspondence from Mr Ashton in that a response that we received only minutes before context, and in particular Mr Ashton’s interpretation of the we sit. I hope that the committee members agree COPFS media release, and did not uphold the complaint. that that is not respectful of the committee. The I reject wholeheartedly the suggestion that because she letter is quite short, so it cannot have taken that failed to uphold a complaint in this context, she cannot long to write. Do members agree that it is not exercise impartiality and independence regarding satisfactory to have to wait until 23 February for a Operation Sandwood. response from 5 February? I do not agree that the process in place in COPFS requires to be amended to address this sweeping and unfounded assertion that Scotland’s Prosecution Service 11:15 cannot act independently in the public interest in a criminal John Finnie: I agree and I think that you are investigation.” being excessively generous to the Lord Advocate. I do not know whether Justice for Megrahi has In his letter—which he has wrongly addressed to seen that letter. [Interruption.] someone who is not even a member of the committee— I am informed that they have seen it very briefly. I know that some members of the campaign are The Convener: I am glad that it was you and present today. I have read the letter out so that it not I who pointed that out. It appears that the is on the record, but it was too late in the day to Deputy Presiding Officer has become deputy get it into the public arena prior to this. convener of the Justice Committee. Roderick Campbell: I know that there are Elaine Murray: Not for the only time. members of Justice for Megrahi in the gallery. Is it John Finnie: There is an important point of possible to hold the petition back until a meeting principle here. We are talking about a significant next week or the week after? case and I am disappointed that such simple facts John Finnie: I would be happy with that, but we can be presented incorrectly. need to highlight certain aspects today. The convener talked about a letter of 5 I understand why you might not have read out February, but the Lord Advocate says: the first sentence of the letter, convener, but it “Thank you for your letter of 12 January” does contain the important phrase although we cannot discount the possibility that he “in which you seek further information to ensure impartiality also got that wrong. We have therefore received a when there have been complaints about COPFS handling response 42 days later and, although you say we of the case” got it at 9.45, I thought that we got it at 9.50. Either The Convener: Yes—sorry. way, the message is very clear. John Finnie: We would have had clarity about Can I comment on the letter, convener? that if the Lord Advocate had provided Justice for Megrahi or the committee with specific responses The Convener: I want to read it out first to the eight legitimate questions that we asked. I because it is not yet public. appeal again for that clarity. Elaine Murray: John Finnie is right that the In the second paragraph of his letter, the Lord letter was sent on 12 January. Advocate says: The Convener: I will read out the Lord “The allegations ... are being considered by Police Advocate’s letter. Scotland in accordance with due process.” “The allegations made by JFM are being considered by Whether or not Justice for Megrahi is happy with Police Scotland in accordance with due process. An independent senior counsel at the Scottish bar, with no that, there has certainly not been due process prior involvement in the Lockerbie investigation and because there has been significant deviation, for associated prosecution, has been appointed to undertake the better, from the normal process. That deviation prosecutorial functions in relation to the Police was—I quote the Lord Advocate again— investigation. This role includes providing an independent legal overview of the evidence, conclusions and “An independent senior counsel at the Scottish bar, with no recommendations and directing the inquiry when required. prior involvement in the Lockerbie investigation and associated prosecution, has been appointed to undertake I note that JFM suggest that because Mrs Dyer prosecutorial functions in relation to the Police considered, and did not uphold, a complaint by Mr Ashton investigation.” in her correspondence to him in February 2013 that she cannot be said to be impartial. Mrs Dyer’s correspondence That is not the normal process, and we are also with Mr Ashton was stage 3 of the then COPFS complaints advised about an independent overview. process and related to Mr Ashton’s complaint about what

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The Convener: The circumstances are also not Secondly, on a point of smaller interest, which I normal, in that the Police Service and the Crown need to check and would be happy to withdraw if I Office are being accused of alleged mischief—let am proved to be wrong, I think that I saw in the us put it like that—with regard to the whole case. I press that Mrs Dyer had announced her retirement am not disputing what you said; the process is as chief executive of the COPFS. very different. I agree strongly that the committee should avoid John Finnie: It is not helpful to concentrate on concentrating on personalities. It should be about individuals. I am concerned entirely about process. process. The process has been confirmed— The Convener: It is also about independence, The Convener: I was not concentrating on real and perceived. individuals. I am just angry that the Crown Office What does the committee want to do? has done this to the committee at the last minute, as I was with Police Scotland. Was that your John Finnie: We should keep the petition open reference? and ask for the eight questions to be answered. John Finnie: No—my reference was to the Christian Allard: I concur with what Rod extensive third paragraph of the letter, in which an Campbell said. We should look at the issue next individual is named. I am not concerned about the week and, as has been said, make sure that we individual. What I am concerned about is that we talk about process and not about individuals. have had confirmation from the Lord Advocate that The Convener: It is to do with process. I read the individual dealt with a complaint—a complaint the letter out because it is not in the public that is very pertinent indeed—that the fifth line of domain. It will be and the person will be named the paragraph says was “about the Lockerbie once it is on the record. investigation”. In the normal course of things, just as we do in the committee, I would expect John Finnie referred to eight questions. I was individuals to declare an interest of prior absent at the time: will that be in the Official involvement. Report? The Convener: You and I have not declared Elaine Murray: There was an earlier paper. interests yet, but perhaps should as members of Justice for Megrahi. Roderick Campbell: Yes. I do not feel that there is sufficient information before us this John Finnie: I am not a member of Justice for morning for the committee to do the issue justice. Megrahi. John Finnie: We know that there are issues. The Convener: I am, and should perhaps have We have discussed on at least two occasions the said that. I have done so before, Mr Allard. legitimate request for information that would inform John Finnie: There has already been our future decision making. There should not be anything controversial in that. significant deviation in the process and it has gone very well. The process is now hitting a critical point The Convener: We can certainly repeat the at which if we revert to the standard process, in questions and we will discuss in private the terms which an individual who may be deemed to have of the letter, which will also be in the public domain direct involvement will remain in charge of what once it is drafted. Do members agree? will be a very important decision, we will reach an impasse. It would be helpful if we could get early Members indicated agreement. responses to the eight questions that have been The Convener: We will keep the petition open legitimately posed, and I concur with Mr Campbell and we can return to it next week—I am told that that the committee should keep the petition open. there is space. Roderick Campbell: I did not quite say that we should keep the petition open. We should certainly Emergency and Non-emergency Services keep it open for today; I am not suggesting that we Call Centres (PE1510) close it today. I suggest that more comment needs to be out there before we can take a considered Inverness Fire Service Control Room view. (PE1511) I have a couple of quick points to make. It is The Convener: We now move on to PE1510 worth stressing that Catherine Dyer is not the and PE1511 on police and fire control rooms. “independent ... counsel”. Her role is simply to co- ordinate matters and is therefore not involved in In January, we agreed to keep the petitions providing an overview. open to monitor progress on the police and fire control room closures. Since that meeting, Police Scotland has announced a timetable for the

29 23 FEBRUARY 2016 30 transfer of the 101 calls and 999 emergency calls Subordinate Legislation from Dundee, Inverness and Aberdeen. What does the committee wish to do with the Scottish Sentencing Council (Submission petitions? of Business Plan) Order 2016 (SSI 2016/55) Christian Allard: On the Ministry of Defence and the fire service, the letter from Chris McGlone, the executive committee member for Scotland of 11:25 the Fire Brigades Union— The Convener: The next item is consideration of two instruments that are subject to negative The Convener: That comes later. You are on procedure. The first is the Scottish Sentencing the wrong thing. Council (Submission of Business Plan) Order Christian Allard: Sorry. 2016, which specifies that the Scottish Sentencing Council must prepare and submit its initial The Convener: Keep taking the pills. business plan to Scottish ministers before 26 John Finnie: It was entirely premature for September 2016. Police Scotland to take the decision that it took The Delegated Powers and Law Reform about control rooms. Many people, including me, Committee agreed not to draw the order to the believed that the interim report from Her Majesty’s attention of the Parliament on any grounds within inspectorate of constabulary for Scotland its remit. Members have no comments. Are evidenced a need to retain those control rooms members content to make no recommendation? rather than a need to dispose of them. I would like to keep the petitions open. Members indicated agreement. Margaret Mitchell: I concur with that. Regulation of Investigatory Powers The Convener: The committee would like to (Prescription of Ranks and Positions) keep the petitions open. Do members want to (Scotland) Order 2016 (SSI 2016/56) recommend that a future justice committee continue to monitor the issues? The Convener: The second negative instrument is the Regulation of Investigatory Members indicated agreement. Powers (Prescription of Ranks and Positions) (Scotland) Order 2016, which prescribes the rank or position of staff within Food Standards Scotland who are entitled to grant authorisations for directed surveillance and covert human intelligence sources, under the Regulation of Investigatory Powers Act 2000, to help combat food fraud and other food crime. Again, the DPLR Committee did not draw the order to the attention of Parliament on any grounds within its remit. Members have no comments. Are members content to make no recommendation? Members indicated agreement.

11:26 Meeting continued in private until 12:00.

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