Hansard

Like other committee members, I am grateful to everyone who submitted evidence on the bill, because they certainly helped us to get to grips with an extremely technical piece of legislation. First of all, I should say to Humza Yousaf that my husband does not have a legal background—he is, in fact, a documentary filmmaker—but what he offers me is endless patience. He certainly needed that patience when I tried over and over to explain to him what the bill was about; on this occasion, I might even have stretched it a bit.

During the evidence sessions, there was a great deal of to-ing and fro-ing, particularly with regard to part 2, as arguments about the interaction of data protection legislation and the proposals in front of us played out. Much of that could have been avoided had the Government carried out the usual formal consultation prior to the bill’s introduction.

Like other Justice Committee members, I support the bill’s general principles. As we have heard, it contains two very disparate pieces of legislation. Although not unprecedented, it is not a particularly sensible way to legislate as it ties Parliament's hands. Although part 2 is couched in general terms, we all know that its overriding purpose was to facilitate the publication of the statement of reasons in the al-Megrahi case. Indeed, some might say that it is no longer required, given that a national newspaper published that very document a few weeks ago. Such a development simply highlights how events can overtake us and exposes the dangers that are inherent in linking together two totally separate items in a bill. The fact that part 2 is tied to part 1 means that it cannot be dropped unless we are prepared to allow the whole bill to fall. Of course, that would not be sensible, so we must press on with part 2, however unnecessary it might be. Although it is highly unlikely, I accept that another abandoned appeal in the future might raise significant public interest. However, as the committee convener said, we had little time to take evidence on the general applicability of the provisions as, understandably, most of our evidence related to the Megrahi case.

I support the view that a full and detailed account of the events surrounding Lockerbie should be available to us all. For too long, there has been speculation about the case. As Humza Yousaf rightly pointed out, publication of the statement of reasons would never have resolved all the outstanding issues, but it is an important, if limited, step. Without a doubt, it is in the public interest to know why Mr Megrahi was allowed to appeal. It is vital for Scotland that our justice system is open and transparent and, if mistakes have been made, we must learn the lessons so that justice can be served.

I will focus the rest of my comments on part 1, which relates to the punishment part of non-mandatory life sentences, as we have heard. As the cabinet secretary outlined—the committee convener developed the point in her detailed seminar—it sets out to correct a situation that arose following the appeal court judgment in March 2011 in the case of Petch and Foye v Her Majesty’s Advocate, which meant that prisoners who are given a discretionary life sentence or an order for lifelong restriction can apply to become eligible for parole earlier than those who are serving sentences of a fixed length. The bill is intended to restore to the courts the discretion to set a punishment part of sentences when it considers that appropriate in the circumstances.

Yet again, the Scottish Government finds itself having to play catch-up in relation to ECHR compliance. It has had to get out the sticking plasters again. The fact that this is the latest in a string of such cases highlights the need to ECHR proof all our legislation rather than only responding after the fact. Indeed, the committee’s report draws attention to the interim nature of what is proposed. It is surely time that we looked closely at our body of law and reviewed exactly how it sits in relation to our ECHR responsibilities.

I support what the Government is trying to achieve with part 1, but I question whether it is going about it in the right way. Our committee report highlights concerns about the unnecessary complexity of the proposals. Public confidence in the law and ease of understanding ought to be central to our justice system. Sentencing is a crucial part of that, and it should be readily understood by all those who are involved as well as the wider public. The bill is intended to simplify the situation, yet the Law Society maintains that

“the Bill will not give rise to a clear legislative solution”,

because what is proposed by way of calculation and comparison exercises is similar to what has gone before and may itself bring further confusion and uncertainty, which would give rise to its own complexities.

We heard in evidence from the Faculty of Advocates that this is complicating the issue significantly and interfering with judicial independence, and that there are questions about the extent to which it is appropriate to seek to restrict, control and direct the exercise of judgments. There is a danger that sentencing is becoming too formulaic and we are tying the hands of judges and interfering with their discretion.

I draw members’ attention to the paragraphs on pages 16 to 18 of our report on public confidence and clarity in sentencing. As Jenny Marra pointed out, James Wolffe QC characterised the approach of the bill as being

“to take an already complex piece of legislation and make it even more complex.”—[Official Report, Justice Committee, 31 January 2012; c 864.]

James Chalmers of the University of Edinburgh considered that the bill

“seeks to create a tortuous system which is barely intelligible to lawyers, let alone the general public”.

He went on to state that he had not spoken to anyone who had felt comfortable in reading it and working out what judges are required to do under it.

The committee is of the view that the Government should consider whether a less prescriptive approach would be clearer and more appropriate. I have considered the cabinet secretary’s response that the matter is necessarily complex, but I remain of the view that we ought to be doing everything possible to simplify it, and I ask the cabinet secretary to give further thought to that during stage 2.

I have some sympathy with the view that the sentencing legislative framework has become unduly complex and should be reviewed in its entirety to provide greater clarity. I urge the Government to give serious consideration to that in the longer term.

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