(Session 2) Tuesday 6 March 2007 the Committee Will Meet at 1.45 Pm

J1/S2/07/12/A

JUSTICE 1 COMMITTEE

AGENDA

12th Meeting, 2007 (Session 2)

Tuesday 6 March 2007

The Committee will meet at 1.45 pm in Committee Room 4.

1. Decision on taking business in private: The Committee will decide whether to take item 6 in private.

2. Subordinate Legislation: Johann Lamont MSP, Deputy Minister for Justice, to move S2M-5641—

That the Justice 1 Committee recommends that the draft Number of Inner House Judges (Variation) Order 2007 be approved.

3. Subordinate Legislation: The Committee will consider the following negative instruments—

the Civil Legal Aid (Scotland) Amendment Regulations 2007, (SSI 2007/59);

the Advice and Assistance (Scotland) Amendment Regulations 2007, (SSI 2007/60);

the Police (Injury Benefit) (Scotland) Regulations, (SSI 2007/68); and

the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment) 2007, (SSI 2007/87).

4. UK Borders Bill (UK Parliament legislation): The Committee will consider the legislative consent memorandum lodged by Cathy Jamieson MSP, Minister for Justice (LCM(S2) 14.1).

5. Petition PE914: The Committee will consider a petition by Peter Fallon, calling on the Scottish Parliament to urge the Scottish Executive to amend criminal justice legislation to require criminals to make financial reparations to the victim(s) of their crime.

6. Legacy Paper: The Committee will consider a draft legacy paper.

Callum Thomson Clerk to the Committee

Papers for the meeting—

Agenda item 2

Note by the Clerk on the draft Number of Inner House Judges J1/S2/07/12/1 (Variation) Order 2007

Agenda item 3

Note by the Clerk on the Civil Legal Aid (Scotland) Amendment J1/S2/07/12/2 Regulations 2007, (SSI 2007/59)

Note by the Clerk on the Advice and Assistance (Scotland) Amendment J1/S2/07/12/3 Regulations 2007, (SSI 2007/60)

Note by the Clerk on the Police (Injury Benefit) (Scotland) Regulations, J1/S2/07/12/4 (SSI 2007/68)

Note by the Clerk on the Act of Sederunt (Fees of Solicitors in the J1/S2/07/12/5 Sheriff Court) (Amendment) 2007, (SSI 2007/87)

Agenda item 4

Note by the Clerk on LCM(S2) 14.1 J1/S2/07/12/6

Agenda item 5

Note by the Clerk on petition PE914 J1/S2/07/12/7

Agenda item 6

Draft Legacy Paper (PRIVATE PAPER) J1/S2/07/12/8

Documents for information—

The following documents are circulated for information:

• Letter from Deputy Minister for Justice, on the Council of Europe Convention Against Trafficking in Human Beings;

• Information sheet from the Commission for Equality and Human Rights; and

• Letter from Minister for Justice, on a review of Bail Supervision services.

Documents not circulated—

Copies of the following documents have been supplied to the Clerk—

• Scottish Executive, Proposals for a Judiciary (Scotland) Bill; this document is also available online, at: http://www.scotland.gov.uk/Publications/2007/02/13115213/0

• Interception of Communications Commissioner, Annual Report, 2005-06; this document is also available online, at: http://www.ipt-uk.com/docs/HC315.pdf

• Scottish Executive, Plan for action on alcohol problems: update; this document is also available online, at: http://www.scotland.gov.uk/Publications/2007/02/19150222/0

• HM Inspectorate of Prisons, Report on HMP Barlinnie; this document is also available online, at: http://www.scotland.gov.uk/Publications/2007/02/01130102/0

• Audit Scotland, A review of service reform in Scottish fire and rescue authorities; this document is also available online, from the Audit Scotland website, at: http://www.audit-scotland.gov.uk/publications/index.htm

• Scottish Executive Social Research, An Evaluation of the High Court Reforms Arising from the Criminal Procedure (Amendment) (Scotland) Act 2004; this document is also available online, at: http://www.scotland.gov.uk/Publications/2007/02/19111137/0

These documents are available for consultation in Room T3.60. Additional copies may also be obtainable on request from the Parliament’s Document Supply Centre.

Forthcoming meeting—

Wednesday 28 March, Committee Room 6.

Agenda item 2 J1/S2/07/12/1

Justice 1 Committee

24 January 2007

SSI Cover Note For Committee Meeting

SSI title and The draft Number of Inner House Judges (Variation) Order 2007 number:

Type of Instrument: Affirmative

Meeting: 12th Meeting, 2007 (Session 2)

Date circulated to members: Thursday 1 March 2007

Minister to attend Justice 1 Johann Lamont MSP, Deputy Minister for Committee meeting Justice

SSI drawn to Parliament’s No attention by Sub Leg Committee:

Affirmative Instrument – Procedure

1. The Justice 1 Committee has been designated lead committee and is required to report to the Parliament by 19 March 2007.

2. The draft Order was laid on 15 February 2007. Under Rule 10.6.1(b), the Order is subject to affirmative resolution before it can be made, it is for the Justice 1 Committee to recommend to the Parliament whether the Order should be approved. The Minister for Justice has, by motion S2M-5641 (set out in the agenda), proposed that the Committee recommends the approval of the Order. The Deputy Minister for Justice will attend in order to speak to and move the motion. The debate may last for up to 90 minutes.

3. At the end of the debate, the Committee must decide whether or not to agree to the motion, and then report to the Parliament accordingly. Such a report need only be a short statement of the Committee’s recommendation.

4. The motion will be considered by the Parliament on 14 March 2007.

Agenda item 3 J1/S2/07/12/2

Justice 1 Committee

6 March 2007

SSI Cover Note For Committee Meeting

SSI title and The Civil Legal Aid (Scotland) Amendment Regulations 2007, number: (SSI 2007/59)

Type of Instrument: Negative

Meeting: 12th Meeting, 2007 (Session 2), 6 March 2007

Date circulated to members: Thursday 1 March 2007

Justice 1 Committee deadline to Monday 12 March 2007 consider SSI:

Motion for annulment lodged No

SSI drawn to Parliament’s No attention by Sub Leg Committee:

If members have any queries or points of clarification on the instrument which they wish to raise with the Scottish Executive, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting.

1 Agenda item 3 J1/S2/07/12/3

Justice 1 Committee

6 March 2007

SSI Cover Note For Committee Meeting

SSI title and The Advice and Assistance (Scotland) Amendment Regulations number: 2007, (SSI 2007/60)

Type of Instrument: Negative

Meeting: 12th Meeting, 2007 (Session 2), 6 March 2007

Date circulated to members: Thursday 1 March 2007

Justice 1 Committee deadline to Monday 12 March 2007 consider SSI:

Motion for annulment lodged No

SSI drawn to Parliament’s No attention by Sub Leg Committee:

1 Agenda item 3 J1/S2/07/12/4

Justice 1 Committee

6 March 2007

SSI Cover Note For Committee Meeting

SSI title and The Police (Injury Benefit) (Scotland) Regulations 2007, (SSI number: 2007/68)

Type of Instrument: Negative

Meeting: 12th Meeting, 2007 (Session 2), 6 March 2007

Date circulated to members: Thursday 1 March 2007

Justice 1 Committee deadline to Monday 19 March 2007 consider SSI:

Motion for annulment lodged No

SSI drawn to Parliament’s No attention by Sub Leg Committee:

1 Agenda item 3 J1/S2/07/12/5

Justice 1 Committee

6 March 2007

SSI Cover Note For Committee Meeting

SSI title and Act of Sederunt (Fees of Solicitors in the Sheriff Court) number: (Amendment) 2007, (SSI 2007/87)

Type of Instrument: Negative

Meeting: 12th Meeting, 2007 (Session 2), 6 March 2007

Date circulated to members: Thursday 1 March 2007

Justice 1 Committee deadline to Monday 26 March 2007 consider SSI:

Motion for annulment lodged No

SSI drawn to Parliament’s No attention by Sub Leg Committee:

1. Correspondence received from the Lord President’s Private office on the instrument is attached as an annexe to this paper.

2. If members have any queries or points of clarification on the instrument which they wish to raise with the Scottish Executive, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting.

1 J1/S2/07/12/5 Annexe

THE LORD PRESIDENT’S PRIVATE OFFICE

Parliament House Edinburgh EH1 1RQ

The Clerk Subordinate Legislation Committee The Scottish Parliament 16th February 2007 Edinburgh EH99 1SP

Dear Sir or Madam,

ACT OF SEDERUNT (FEES OF SOLICITORS IN THE SHERIFF COURT) (AMENDMENT) 2007

The above instrument is being laid before the Scottish Parliament. I expect that following scrutiny by the Subordinate Legislation Committee, it will be passed to one of the Justice Committees. I am hoping that this letter might be passed to the relevant committee with the instrument in due course.

I am attaching, for information, a copy of the letter which was sent in April 2005 to the Clerk of the Justice 1 Committee concerning the Act of Sederunt (Fees of Solicitors and Witnesses in the Sheriff Court) 2005 in answer to various queries raised at the time by the Committee. My purpose in attaching this letter is to provide the Parliament with some background concerning the current instrument. As before, the instrument regulates the fees which a successful party in civil litigation may recover from the unsuccessful party. It does not regulate the fees that a solicitor may charge his or her client. Similarly, the figures in the current instrument have been calculated in the light of advice provide by the Lord President’s Advisory Committee on Solicitors’ Fees which has considered actuarial information provided by the Law Society of Scotland.

This year the Law Society sought an overall increase of 4.6%, which was based on the increase in the National Average Earnings Index, however, the Court was of the view that this figure was not justified, given that other figures for inflation are

2 J1/S2/07/12/5 Annexe significantly below 4.6%. The Court decided that an increase of 4% should be applied across the table of fees.

I hope this is helpful but please do not hesitate to contact me if you require any further information about this instrument.

Yours faithfully

Carolyn Breeds Deputy Legal Secretary to the Lord President

3 J1/S2/07/12/5 Annexe

THE LORD PRESIDENT’S PRIVATE OFFICE

Parliament House Edinburgh EH1 1RQ

Callum Thomson, Clerk, Justice 1 Committee 25th April 2005 The Scottish Parliament Edinburgh EH99 1SP

Dear Mr. Thomson,

Act of Sederunt (Fees of Solicitors and Witnesses in the Sheriff Court) 2005

Act of Sederunt (Fees of Shorthand Writers in the Sheriff Court) (Amendment) 2005.

I refer to your letter to this office dated 21st April 2005 setting out various concerns raised by your committee members about the above instruments. The Lord President has asked me to respond to you on his behalf.

This response is limited to those points raised in your letter to this office and does not seek to address any wider points. I have responded on the basis of information held by this office only.

4 J1/S2/07/12/5 Annexe

The Table of Fees referred to in the Act of Sederunt (Fees of Solicitors and Witnesses in the Sheriff Court) 2005 regulates the maximum level of recovery of expenses by a successful party from an unsuccessful party in civil litigation in the Sheriff Court. A maximum limit is in place to provide some certainty for unsuccessful parties. The actual level of fees charged between a solicitor and client is subject solely to agreement between them. The table sets out a maximum limit to the expenses that may be recoverable from an unsuccessful party. Therefore the unsuccessful party is given some protection. The final amount of expenses that can be recovered from the unsuccessful party is subject to the general discretion of the auditor of court in allowing recovery only of those expenses which he considers reasonable for the conduct of the litigation in a proper manner. Annulling the instrument would have no effect on fees charged by solicitors. It would affect the level of recovery of expenses by a successful party in a case.

The Table of Fees is not related to the legal aid budget, or to any other public service spending. The table does not represent any costs paid out of a public sector budget, except where a public entity has been an unsuccessful party. A public entity that is successful will be entitled to recover some of their legal costs from the unsuccessful party by reference to the table of fees.

Where a party in receipt of legal aid is unsuccessful, the court may, in certain circumstances, order that the legal aid board should pay that party’s expenses to the successful party. The circumstances where this is possible are limited to case in which the unsuccessful party initiated the litigation, the court is satisfied that the successful party would suffer financial hardship if the award were not made, and it is just and equitable to make such an award.

It should also be noted that the court has the power to modify any award of expenses against a party in receipt of legal aid to a fixed amount, or even to nil, despite the table of fees.

Further, if a successful party is in receipt of legal aid, the sums recovered with reference to the Table of Fees prevent the legal aid budget from having to bear all of the costs of the litigation.

In answer to the specific bullet points in your letter, points one and two are most conveniently dealt with together. The Cost of Time Survey is an analysis of the costs of running a firm or incorporated practice of solicitors. It is carried out on the behalf of the Law Society of Scotland by a firm of consulting actuaries. Firms of varying sizes in various locations across Scotland provided detailed information to the actuaries about the various costs involved in running a firm or incorporated practice

5 J1/S2/07/12/5 Annexe

of solicitors, including the cost of salaries. This information, much of which was of a commercially sensitive nature, was provided on a confidential basis to the actuaries.

From the information provided to them, the actuaries calculated the average rate of expense, per hour, of running a firm. This took into account the projected cost of salaries, adjusted to take into account growth in national average earnings during the previous year, and projected non‐salary expenses, adjusted to take into account the level of retail price inflation in the previous year. In the estimates of the cost of time in 2005, the figures used were 4% for earnings and 2.5% for retail price inflation.

The resulting calculation brought out an average hourly expense rate of £118.46. In 2004, the figure was £113.02. The percentage average increase was therefore 4.8%.

The results of the Cost of Time Survey, along with various suggestions by the Law Society for substantive changes to the tables of fees, were presented to the Lord President’s Advisory Committee on Solicitors’ Fees by the Law Society. This committee is made up of four solicitors, a senior member of the Faculty of Advocates, the Auditor of the Court of Session and is chaired by a Senator of the College of Justice. The committee had to consider the suggestions, and then make recommendations to the Lord President. On the basis of the detailed information provided to the committee in the Cost of Time survey, it was decided that the percentage increase in the recoverable expenses was reasonable, and the committee so recommended to the Lord President. Further information on the actuarial detail of the Cost of Time Survey would require to come from the consulting actuaries.

You ask whether solicitors have been encouraged to make efficiency savings and contain costs. I cannot comment on whether or not this is the case as firms or incorporated practices of solicitors are private enterprises. This office has no information about how individual private businesses are run, or whether the Law Society has issued any information regarding how best to run a firm in an efficient manner. In the context of expenses that are incurred in the course of a litigation, a number of features may encourage a solicitor to conduct a case in the most efficient manner possible, such as the general discretion of the auditor, as mentioned above, to strike out certain parts of the account if he is not satisfied that they were justified. A court can always award expenses for particular stages of court procedure in favour of a party where the other party is considered to have caused extra procedure or had been unsuccessful in that part of the cause. An account of expenses, unless agreed by the parties, will always be subject to a procedure known as taxation, where the auditor of court considers the file, and whether each particular area of expense that was incurred was justifiable. Each area of expense requires to be properly vouched before recovery of it will be allowed by the auditor. It is also possible for a court to find a solicitor personally liable in expenses if it seems that the

6 J1/S2/07/12/5 Annexe

solicitor is personally responsible for incurring improper costs. It should not be overlooked that the Table of Fees is not related to the fees a solicitor charges his clients. On a solicitor to client basis, the solicitor may charge whatever he sees fit to charge and the client is willing to pay.

The fourth point raised in your letter relates to recovery of witnesses’ loss of earnings or profits. The Law Society of Scotland made representations to the Lord President’s Advisory committee about the appropriate level of recovery. Their suggestion was that the upper limit of £250 was wholly inadequate, and that the ceiling should be removed altogether. Following discussion of this issue by the committee, it was agreed that this was an inadequate maximum level of recovery. The committee did not agree that the ceiling should be removed altogether. A witness as to facts in a civil action may lose substantial earnings or profits should he be required to attend court. While the party citing that witness may agree to reimburse that witness in full, it would introduce an unacceptably random element into the recovery of expenses in the event that the party who had not cited that witness was unsuccessful and required to cover the entire amount of the expense. The figure of £400 was selected as an appropriate maximum level of recovery. As with recovery any other outlays, appropriate vouching will be required, and the auditor of court has residual discretion to refuse to sanction unjustifiable payments.

In relation to the query regarding the increase of fees in the Act of Sederunt (Fees of Shorthand Writers in the Sheriff Court) (Amendment) 2005, the increase in the fees payable to shorthand writers was calculated on the same basis as the increase to the fees of Sheriff Officers and Messengers at Arms which came into effect on 1st January 2005. This was based on the movement in the Inflation and Average Earnings Indices over the twelve‐month period from July 2003 to July 2004, calculated as follows:‐

Inflation percentage change = 3.0% Average earnings change = 4.4% Mid‐point (3.0%+4.4% divided by 2) = 3.7%

The inflation percentage is based on the headline annual percentage figure in the Retail Prices Index for July 2004. The average earnings percentage is based on the percentage figure for the increase in average earnings, as calculated by the Office for National Statistics.

Shorthand writers are engaged to make a record of proceedings in a court action by the parties to that action. They are employed by private companies. The average salaries of shorthand writers, whether in the Sheriff Courts or the Court of Session, is therefore, not known to this office. While the hourly rate chargeable by firms of shorthand writers is likely to contain elements that are attributable to the cost to the

7 J1/S2/07/12/5 Annexe firms of paying their employees’ salaries, this also has to cover the other costs of running a business. The figure therefore takes into account increases in the cost of running a business over and above increases in salaries.

I trust that this information is sufficient for your purposes.

Yours sincerely,

Susan Dickson, Legal Assistant to the Lord President.

8 J1/S2/07/12/6 Justice 1 Committee

Legislative Consent Memorandum: UK Borders Bill (LCM(S2) 14.1)

Note by the Clerk

Purpose

1. The attached legislative consent memorandum (LCM) from the Scottish Executive concerns the UK Borders Bill currently before the UK Parliament. The memorandum states that the Executive does not intend to lodge a legislative consent motion as the UK Government have lodged amendments so that the provisions of the Bill in relation to devolved areas will be modified so that they do not extend to Scotland.

2. This paper invites the Committee to note the terms of the LCM.

Background

3. The memorandum has been lodged by Cathy Jamieson, Minister for Justice, under Rule 9B.3.1(a) of the Parliament’s Standing Orders. The UK Borders Bill can be found at: http://www.publications.parliament.uk/pa/pabills/200607/uk_borders.htm

4. Most of the provisions of the Bill relate to the reserved matters of immigration and nationality, or do not apply to Scotland. The exception is clause 27 (1) and (2), which amends the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. An explanation of this clause is provided by the LCM, at paragraphs 9-11.

5. The Executive states that the application to Scotland of clause 27(1) and (2) was an oversight. As such amendments have been lodged so that these provisions do not extend to Scotland.

Timetable

6. As there is no motion associated with the LCM seeking Parliamentary consent there is no specific deadline by which the Committee must consider the memorandum.

Report

7. Under Rule 9B.5 of Standing Orders, the lead Committee is required to consider and report on the LCM. In this case, the report need only be a short confirmation that the Committee has considered the memorandum.

Conclusion

8. The Committee is invited to consider and, if satisfied, note the memorandum. LEGISLATIVE CONSENT MEMORANDUM

UK BORDERS BILL

The Minister for Justice invites the Parliament to note that the Executive does not intend to lodge a Legislative Consent Motion to seek consent for certain provisions of the UK Borders Bill which would legislate in devolved areas. This Bill was introduced in the House of Commons on 25 January 2007.

Background

This Memorandum has been lodged by Cathy Jamieson MSP, Minister for Justice, under Rule 9B.3.1(a) of the Parliament’s Standing Orders. The UK Borders Bill can be found at: http://www.publications.parliament.uk/pa/pabills/200607/uk_borders.htm

The Bill is the next step in implementing the Home Office's plans to strengthen the ability of the new Border and Immigration Agency to deter and detect those breaking the rules and ensure that foreign nationals legally in the UK play their part in supporting the UK immigration system.

It is also part of the on-going implementation of the Immigration & Nationality Directorate Review, published in July 2006, and supports the delivery of the Borders, Immigration and Identity Management Action Plan.

The key measures in the Bill will provide immigration officers with greater powers to tackle organised crime and illegal working, ensure that foreign national prisoners face a presumption of automatic deportation and swift removal and help identify and manage those foreign nationals who are entitled to be here and those who are not.

The Bill makes provision about the powers of immigration officers at ports, biometric registration, treatment of asylum claimants, enforcement of immigration legislation, deportation of criminals and sharing of information. Most of the provisions of the Bill relate to the reserved matters of immigration and nationality, or do not apply to Scotland. The exception is clause 27(1) and (2), which amends the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which relates to devolved matters in so far as it applies to Scotland.

Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act) introduced new criminal offences of trafficking people into, within or out of the UK for the purpose of exploitation. A person found guilty of an offence under section 4 is liable, on conviction on indictment, to imprisonment for up to fourteen years, to a fine or to both, or on summary conviction, to imprisonment for up to twelve months, to a fine not exceeding the statutory maximum or to both. A person commits an offence if he arranges for a person to arrive in or depart from the UK and he intends to exploit that person or believes that another person is likely to do so. The offence is also committed if a person arranges travel within the UK by a person if he believes that the person has been brought into the UK to be exploited, and he intends to exploit that person or

LCM(S2) 14.1 Session 2 (2006) believes that another person is likely to do so. For the purposes of the offence, a person is exploited if he is:

• the victim of behaviour contravening Article 4 of the ECHR (slavery or forced labour);

• encouraged, required or expected to do something which would mean an offence is committed concerning organ removal;

• subjected to force, threats or deception designed to induce him to provide services or benefits or enable another person to acquire benefits; or

• requested or induced to do something, having been chosen on the grounds that he is ill, disabled, young or related to a person, in circumstances where a person without the illness, disability, youth or family relationship would be likely to refuse or resist.

The Act applies throughout the UK and, as regards Scotland, the Scottish Parliament endorsed the principle of creating this new offence to combat trafficking in human beings and agreed to the consideration of these provisions by the UK Parliament.

Clause 27 of the UK Borders Bill: People trafficking

Clause 27, subsection (1) amends section 4(1) of the 2004 Act to provide that a person commits an offence if they facilitate the arrival in, or the entry into, the United Kingdom of a person that they intend to exploit or who they believe is likely to be exploited by another person. This amendment will ensure that acts committed after a person has arrived in the United Kingdom but before they have entered the UK will be covered by the offence.

The trafficking people for exploitation offence contained in section 4 of the 2004 Act currently encompasses anything done in the United Kingdom, anything done outside the United Kingdom by a British national and anything done outside the United Kingdom by a body incorporated in the United Kingdom to facilitate the arrival or entry into the UK of an individual for the purposes of exploitation. Clause 27, subsection (2) amends sections 5(1) and (2) of the 2004 Act by removing this limitation on the territorial application of the offence, thereby ensuring that facilitating the arrival or entry into the UK of a person for the purposes of exploitation, regardless of where the facilitation took place and irrespective of the nationality of the facilitator, are now caught by the offences.

Clause 27 goes on to make similar amendments to trafficking offences in the Sexual Offences Act 2003, but these amendments do not apply to Scotland.

Why no Legislative Consent Motion is being lodged

The application of clause 27(1) and (2) of the UK Borders Bill to Scotland was an oversight. The UK Government have lodged amendments so that these provisions do not extend to Scotland.

The Scottish Executive is considering whether similar amendments should be made to the 2004 Act offence as it applies in Scots law, and to similar offences such as section

22 of the Criminal Justice (Scotland) Act 2003 and sections 9 to 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.

Scottish Executive 27 February 2007

4 J1/S2/07/12/7

Justice 1 Committee

Petition PE914, by Peter Fallon

Background

1. The Committee considered public petition PE914 at its meeting on 1 November 2006. The Committee agreed to keep the petition open during the passage of the Criminal Proceedings etc. (Reform) (Scotland) Bill.

2. Petition PE914 calls for the Scottish Parliament to urge the Scottish Executive to amend criminal justice legislation to require criminals to make financial reparations to the victim(s) of their crime.

3. Before the Public Petitions Committee (PPC) referred the petition to the Justice 1 Committee for consideration, it sought the views of the Crown Office and Procurators Fiscal Service (COPFS) and the Scottish Executive Justice Department in relation to the petition. The relevant extracts from these responses are included in the body of this paper.

Criminal Proceedings etc. (Reform) (Scotland) Act 2007

Provisions in the Act 4. The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 received royal assent on 22 February 2007.

5. In relation to compensation orders, the Act broadens the circumstances in which the court may make such an order to include any alarm or distress caused directly to the victim (section 38 of the Act).

6. The Act also provides for a new alternative to prosecution – compensation offers (section 39 of the Act). Under this disposal, prosecutors will be able to offer an accused the opportunity of paying compensation to the victim of an offence, as an alternative to proceeding with the prosecution. In correspondence to the PPC, COPFS stated that this mechanism would provide “effective and speedy resolution of the matter for the victim and the accused, and provides a means for the victim, where appropriate, to receive compensation without the need to attend court”.

Other means for obtaining compensation

7. In correspondence to the PPC, COPFS and the Executive described a number of other mechanisms by which a person convicted of a crime can be required to pay compensation to a victim of their crime.

Compensation Orders 8. COPFS stated that, under section 249 of the Criminal Procedure (Scotland Act) 1995—

“where a person is convicted of an offence, the court, instead of or in addition to any other disposal, subject to certain limited exceptions, can 1 J1/S2/07/12/7

make an order requiring that person to pay compensation for any personal injury, loss or damage caused, whether directly or indirectly, by the acts which constituted the offence.”

9. COPFS also stated that while there is no limit on compensation in solemn cases, at summary level, compensation can be awarded up to a maximum of £5000.

Criminal Injuries Compensation Scheme 10. The Criminal Injuries Compensation Scheme (CICS), operated by the Criminal Injuries Compensation Authority (CICA), provides another means by which victims of violent crime can receive compensation, even when the court has not made a compensation order. In addition, the scheme is not restricted to those cases where there has been a prosecution resulting in a criminal conviction.

11. The Executive noted that under section 20 of the Management of Offenders (Scotland) Act 2005, CICA now has the power to recover sums from offenders that it has paid out to victims.

Diversion scheme 12. COPFS stated that, where an appropriate local diversion scheme exists, it is possible for procurators fiscal to divert an accused to a scheme involving mediation and reparation between the accused and the victim—

“this can provide a very effective form of diversion in respect of less serious offences where the background to an offence involves a conflict between these parties, or where it appears that some kind of amends could be made to the accused. This may, on occasion, involve the accused agreeing to pay some form of compensation to the victim.”

Recommendation

13. In view of the fact that the Criminal Proceedings etc. (Reform) (Scotland) Bill sought to extend the scope of compensation payments to victims of crime, the Committee agreed to keep the petition open during the passage of the Bill.

14. During its consideration of the Bill at Stage 2, the Committee raised a number of concerns in relation to how the new system of compensation offers as proposed in the Act will work in practice. The Committee was content with the Executive’s response to these concerns and did not seek to amend the Bill in this regard.

15. As highlighted in the correspondence received from COPFS, there are also other mechanisms already in place to ensure that victims of crime are properly compensated where it is deemed appropriate and practicable.

16. On this basis, it is recommended that the Committee close its consideration of the petition.

17. The Committee is invited to consider its position on the matter.

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______

COUNCIL OF EUROPE CONVENTION AGAINST TRAFFICKING IN HUMAN BEINGS

I am writing to you to inform you of recent developments regarding the Council of Europe Convention Against Trafficking in Human Beings. As you may be aware, the Prime Minister has recently indicated that the UK Government intends to sign the Convention, a matter which I know is of close interest to you. I am sure you will join me in welcoming this decision.

The Convention requires signatories to put in place measures in three broad areas, to combat trafficking. These relate to the criminalisation of trafficking, enforcement against traffickers and support to victims of trafficking. The UK, including Scotland, is already considered to be compliant with the first two of these. The provisions concerning support for victims of trafficking contain both reserved and devolved elements. The Scottish Executive will be working closely with the UK Government, police, local authorities and other stakeholders to ensure that Scotland meets its devolved responsibilities under the Convention.

I am copying this letter to the Conveners of the Justice Committees and of the Equal Opportunities Committee.

JOHANN LAMONT

abcde abc SE Approved Version 1.1 Paper for information

The Commission for Equality and Human Rights

The Vision

The Commission for Equality and Human Rights (CEHR) was established by The Equality Act 2006 and will come into being in October 2007.

Trevor Philips has been appointed Chair of the CEHR and Dr Nicola Brewer was appointed Chief Executive on 22 December 2006.

The CEHR will champion equality, diversity and human rights as defining values of our society, encouraging all our institutions to operate for the benefit of every individual.

Delivering prosperity for all means ensuring that every individual has the chance to achieve their full potential, free from prejudice and discrimination. Ensuring that everyone can participate in Scotland’s success is critical to its delivery.

What will the CEHR be responsible for?

The work of the current equality Commissions, the Disability Rights Commission, the Equal Opportunities Commission and the Commission for Racial Equality, will be integrated into the new CEHR. The CEHR will also promote equality and tackle discrimination in relation to sexual orientation, age and religion or belief – areas that are not covered by the existing equality Commissions.

The CEHR will also, for the first time, be charged with the promotion and protection of human rights, providing institutional support for the Human Rights Act (HRA). It will encourage public and (where appropriate) private bodies to comply with the principles that underline the HRA, levering up standards by encouraging good practice based on the respect for the dignity of each individual.

Paper for information The remit for human rights is limited in Scotland to reserved issues only, devolved human rights issues will be dealt with by the Scottish Commission for Human Rights (SCHR). This is acknowledged in Section 7 of the Equality Act, which states that the CEHR will not act on any devolved human rights issue in Scotland without first seeking the permission of the Scottish Commission for Human Rights. Work is currently underway on a Memorandum of Understanding between the two bodies to ensure best use of resources, including co-location, to achieve their strategic aims.

How will the CEHR operate in Scotland?

There will be one CEHR Commissioner with a specific remit for Scotland. This Commissioner will be required to have specific knowledge of Scottish issues and institutions, and will be appointed by the UK Minister responsible for the CEHR (currently Ruth Kelly MP, Secretary of State for Communities and Local Government), with the consent of the Scottish Ministers. Other Commissioners may also be Scottish or living in Scotland.

There will be a Scotland Committee, which will oversee the work of the CEHR in Scotland and advise the CEHR on the exercise of its functions in Scotland. Where the CEHR plans to take action that affects people in Scotland it must consult the Scotland Committee. The Scotland Committee will also have delegated powers to provide advice and information (including publishing ideas or information, undertaking research, providing education/training, or providing advice/guidance) in respect of the CEHR’s main duties, and to monitor and advise the devolved government about the effect or likely effect of legislation.

The Scotland Commissioner will Chair the Scotland Committee. Each Committee member will be appointed, by the CEHR, for 2-5 years. The Committee must be established before the CEHR assumes its duties.

There is to be a Disability Committee and this will also operate in Scotland, and the Scotland and Disability Committees are expected to liaise on disability issues relating to Scotland.

The powers, duties and functions of the CEHR are all applicable in Scotland, with the exception of the human rights obligations as outlined previously.

The CEHR has specific duties to advise the Scottish Executive and Parliament on equality issues in relation to devolved legislation, and to Paper for information monitor legislation in relation to Scotland to ensure that it is in keeping with the equality enactments. The CEHR can also advise the Scottish Executive and Parliament on positive steps that can be taken to promote equality in Scotland.

The CEHR will also have reference to the specific equality and human rights duties contained in the Scotland Act 1998 and will be able to advise the Scottish Parliament and Executive on those duties. It will require engaging with them on equality and diversity issues relating to devolved issues, when it is dealing with such issues across Britain.

What can the new Commission do?

The CEHR will inherit all the powers of the previous equality Commissions, as well as acquiring new powers. It will be able to:

• provide information, advice and assistance on equality and diversity, human rights and good relations issues across the board; • issue guidance and good practice that will help employers and service providers in the private and public sectors, voluntary organisations and trade unions embrace equality and human rights; • conduct formal inquiries where there are persistent inequalities, human rights or good relations issues that need highlighting; and formal investigations where there is evidence of unlawful discrimination; • give strategic support to individuals with anti-discrimination claims, to intervene in cases where equality and human rights arguments need to be made, and judicially review decisions that contravene human rights or equality legislation and where necessary provide conciliation; • consult all stakeholders in the formation of its strategic plan, reaching out to all sections of society through this new duty; • publish a ‘state of the nation’ report every three years showing: where Britain is failing on equality and human rights; desired outcomes to work towards; and benchmarks for progress; • monitor all hate-crime, including elder abuse and hate-crime against disabled people; • challenge prejudice against and stereotyping of particular groups; • establish a regional presence that will address issues relevant to the daily lives of people at the grass roots level; • promote good relations both within and between members of different communities, and use its regional network in these initiatives; • provide grants to bodies working towards the objectives of the Commission; Paper for information • establish a strong evidence base and understanding of discrimination, to inform future policy development and best practice.

How will the Commission Work?

The Commission will seek to work in partnership with a range of groups and organisations; large and small employers, and public authorities such as in health care, schools, colleges and universities, or local, Scottish and UK government and Parliament. It will also work closely with partners in the voluntary sector that share similar goals to the CEHR, seeking to maximise its impact at the grass-roots level.

What about specific issues?

Fair minded people want equality, but not all challenges are the same. There are real fears that particular discrimination faced by specific groups will not get the attention they deserve under the new arrangements and some groups have voiced fears that they will lose out.

However working together on common challenges does not mean there will be no specific programmes of work for each group covered by the CEHR. Indeed the strategic plan will have to set out the CEHR’s programmes and plans that promote human rights and equality, and challenge discrimination on grounds of race, gender, disability, sexual orientation, age, religion or belief. A common legal framework that will be created by the Single Equality Act, will make this simpler and easier to deliver.

Further information

For further information about the CEHR see www.cehr.org.uk

You can also subscribe to the regular CEHR newsletter at http://www.cehr.org.uk/join.rhtm

Alternatively contact: Rosemarie McIlwhan CEHR Programme Manager – Scotland Email: [email protected] Tel: 0141 245 1815