 Felly gwelwch roi gain i'r 15 ysgolwsgrwlau cyfarpwyd. Rydw i'n mynd arddangos yn y cydwyddiant, wrth gwrs, mae'r tynnu ddod lleithwyr o'r Llywodraeth yn ymythbu diwrnod yn ymgyrchu'r ein cyfnodig ymddangos hefyd a'i gyrchwyr yma, ac rydw i ni'n dweud y swydd,就是 o'i sloeddau. Yr ymwneud yma yn cymhwysg shopwyd i'r liddau i gyfarfodau P1458 o Peter Cierbyd ac o unrhywf yn rhoi'r ffordd o ddysg dros Menân Cymru. Mae ddysgol oedd yn bwrth gael i'r ddisgolion yng Nghymru Lord Gill, ddgylcheddiaeth Môr Prif Weinidol yn sylfor prif. Ffawr i'r ddysgolion Lord Gill a nhw'n meddyliad. Mae'r adonai darloedd wedi Ffinn Rudi Gw feddwlach o ddau Lord Garder. Ffawr i'r ddysgolion Lord Gill a choes i'r ddau darkygl, wedi bod yn ddeg wrth fynd i ddsodd y dy 느낌. Это a comedian for your welcome. Your predecessor wrote to me in June of this year and requested me to discuss with the committee my views on what the petition seeks, I'm very happy to do that today. It does seem to me that the petition raises some quite straightforward questions as to the purpose of the proposal and as to the problems that it seeks to deal with if they exist. Of course, behind it, in my view, there are wider constitutional issues regarding the position of the judiciary in Scotland. Also, there is a question to be asked, and that is what is the committee's opinion of the judiciary that we have got. I don't want to take up time, Mr Convener. I want to leave as much time as possible for the committee's questions. For the moment, I shall simply say that I'm not entirely certain what is to go into the proposed register. I'm not clear what current problems there are that the register would solve, and therefore I'm sceptical about what it would achieve. However, I would hope that perhaps there would be time for us to take a wider view of this and consider that perhaps the constitutional questions are such that that petition may not be the appropriate way of dealing with them. It seems to me that there is a very serious question as to why Scotland should wish to be out of step with every other jurisdiction in the United Kingdom and with New Zealand, which is the example that the petition mentions in this respect. With that, Mr Convener, I'm happy to discuss whatever matters the committee wishes to raise. I thank you very much for introducing your thoughts to the consideration that the committee will have. I'm happy to pass over to members of the committee because my throat might not last very long this morning. I don't want to use it up too much. However, if any members of the committee have questions that they want to ask, I will pass over to them. John Swinney, thank you very much. Good morning, Lord Gill and Mr Flynn. Just for the record, could I ask in what capacity is Mr Flynn here today in the witness chair? Clearly, he works for the Lord's President's office. You are the former Lord President, Lord Gill, so I just want to, given the position when you were the Lord President, you refused to come before this committee to give evidence. You met with the previous convener and vice-convener privately to discuss the petition, so could you just seek clarification from you, convener? What is Mr Flynn's capacity at this meeting this morning? I can answer that very simply. When I was Lord President, Mr Flynn was my legal secretary and he was closely involved in the work of my office. He is here today simply because he is familiar with the documentation. In case I need to refer to any documents, he will help me to do so. I think that you said that he was a witness, but he is in hot. That is a matter of record, convener, in terms of what we have in terms of the paperwork presented to the committee this morning. What it actually says on the agenda is that we will take evidence from the right honourable Lord Gill, former Lord President of the Court of Session and Roddy Flynn, legal secretary to the Lord President. I wanted to get that clarified, convener, because I wanted to be clear about whether or not—I assumed that that is why Lord Gill, Mr Flynn, was here this morning, as your legal secretary when you were the Lord President, but I just wanted to get that on the record, convener. To move to the petition— That is wrong, Mr Wilson. Lord Gill, what I have presented in front of me is what I am reading from, and the agenda stipulates to take evidence from. I am sure that, in your line of work— If one of the questions that is asked, if Lord Gill wanted to defer to Mr Flynn to answer the question, or if a member of the committee wanted to ask Mr Flynn a question directly, that would be perfectly in order, in which case Mr Flynn would then be a witness. I do not think that it is any more complicated than that, John. I am just trying to get that on the record, convener, because we did have a problem previously when this committee tried to get evidence and go on to that issue later on. But to get to the heart of the matter that we are discussing this morning is the petition that has been lodged by Peter Cherby. In relation to your views, Lord Gill, you do not think that a register would be appropriate or necessary? I do not think that it is either of those things. It is just that Peter Cherby has provided the committee previously with various pieces of evidence to the committee to justify his position. Since the petition was originally introduced, we have the register of recusal until we know that when judges or sheriffs recuse themselves from particular cases because they have a particular interest, we had one situation where a judge, I believe it, recused themselves because he was a member of the RSPB and felt that he could not hear a case because of the conflict in that type of membership. Part of the difficulty is that the register of recusal is a voluntary register, as I understand, so it is up to judges and sheriffs themselves to decide to declare to recuse themselves from hearing a case before them. Surely, if we did have a register as highlighted by the petition, then the issue of recusal would become less likely because people would then be publicly aware of the interests of the person sitting on the bench in judgment of a case. The two points in answer to that. One is that the register is not voluntary. To the best of my knowledge, the clerks of court are scrupulously accurate in keeping it and, wherever there is a recusal, you may depend on it. It will be recorded in the register. Perhaps the more important point is that there are countless cases where the register does not even come into play because you may find in a sheriff court, particularly in the country areas, that the sheriff will say to the sheriff that, if any cases come into the court involving such and such a body or such and such a person, make sure that I do not get them because I have a connection there with the result that, of course, the cases never reach the sheriff and therefore the register never comes into play. That has always been the case. After a while, in a court, most sheriff clerks will know exactly the sort of cases in which the local sheriff may have some sort of connection. I do not really see it as a problem. The other thing, of course, is that I should, forgive me if I just add this point too, that what has become very clear from the register of recusals is that the vast majority are related to circumstances that this petition, this register that is being proposed, would not affect in any way. For example, supposing the sheriff and the night before a case sees the defender's witness list and recognises someone who is a close friend, then, of course, he will immediately recuse himself, but a register of assets such as this petition proposes would be of no value in a situation like that. We have had heard from the two judicial complaints reviewers, the current judicial complaints reviewer and the previous judicial complaints reviewer, who both have indicated that they would welcome a register of interests. The current judicial complaints reviewer indicated that they would like to see that register also include a hospitality given or received. Do you think that judicial complaints reviewers are wrong in their opinion in relation to keeping a register as well as including the hospitality given or received? We have a recent press article highlighted a situation with sheriffs who were involved in overseas trips. One sheriff in particular has called for his peers to be removed from the committee, all of them, because he has accused them of leaking information about sheriff's trips overseas trips. Surely, if we had a register where those things were being declared and publicly declared, there would be less need for accusations to be made against sheriffs or judges in relation to their activities either within the UK, Scotland or elsewhere in the world? The first judicial complaints reviewer was very strongly of the opinion that there should be a register of assets for judicial office holders. She will, obviously, infer. I disagre entirely with her about that. As for the current complaints reviewer, I think that she came here probably to speak about something rather different and she was asked about it and she expressed her views. All I can see to you is that I do not agree with them. In your question, perhaps you have changed the agenda of this meeting, because my understanding is that what we are here to discuss is a proposal in this petition that there should be a register of judicial office holders, assets and property. If you are now suggesting that you want a register of gifts and hospitality, then that is a separate issue that would have to be dealt with separately. I was referring to the current judicial complaints reviewer's comments and the judicial complaints reviewer came to this committee to discuss the petition that is before us this morning. In response to questions asked to the judicial complaints reviewer, they did indicate that they felt that there should be a register of interest and they extended that, the current judicial complaints reviewer extended that to include hospitality, either given or received. In relation to the issue, yes, it does widen out the scope of the original petition, but it was something that was raised when evidence was given to this committee by the judicial complaints reviewer. I have read her evidence. Good morning. Can you tell me or expand why you think that the current safeguards on place are sufficient? It is very obvious that, for a long time in Scotland, the judiciary has operated on a basis of integrity, deriving from the judicial oath that they take upon appointment, and the terms of that are quite stark, quite plain, and they are the lamp by which every judge is guided in his judicial path. In addition to that, in the modern era, we have added to it the code of judicial ethics, which is a very carefully crafted document that went through a very wide process of consultation and drafting. That really gives every judicial office holder where it needed clear guidance on all the problems of ethics that are likely to occur. The question is whether the committee is in a position where it trusts the judges of this country to do what they do with integrity and honour, or whether it feels that there are among the judicial office holders of Scotland men and women who are liable to act wrongfully. That, of course, depends on how you approach the problem. It may be that, if your starting point is that you have a belief that among the judges and sheriffs there are men and women who are capable of hearing cases in which they have a personal interest and therefore are capable of being guilty of misconduct contrary to their oath, then, of course, I can see that there is an argument for having a register. As you will imagine, Mr Torrance, I take the opposite view. After nearly 50 years in the legal profession, I believe more strongly than ever that the Scottish judiciary is dedicated and committed that it is honourable and loyal to its judicial oath and that it has integrity. If I had thought that among the judicial office holders in Scotland there were men and women who did not have that standard of honour, I would not have wished to be their leader. John The Holy Cronus, a supplementary question to that question. In your term of office as the Lord President, Lord Gill, how many judges or sheriffs were suspended or removed from the bench for inappropriate behaviour? None that I know of. I can sheriff Watson. He was not as you put it, removed from office. What happened was that a litigation arose in which he was involved and I, in the exercise of my discretion, suspended him from sitting as a temporary sheriff until the matter was resolved. I will go back to my original question. How many sheriffs or judges were suspended or removed from the bench during your term of office as Lord President? As I have told you, the answer is that I suspended temporary sheriff Watson. I did not suspend any other judicial office holder nor was it in my power to remove them from office. They can only be removed from office by a procedure that involves the First Minister and this Parliament. Would a register have the temporary sheriff registered an interest? Would that have helped or had any implications at all in terms of your decision? No, you have made my point, Mr Convener. That would not have been caught in a register. By the way, we cannot make any judgments of factor in that case because it is still, as I understand it, a matter of litigation. We do not know what the facts are. Okay, thanks, convener. Good morning, Lord Gill. Good morning, Mr Flynn. As we have heard, one of your main arguments is that judges have a different role from other public officials. Could you perhaps explain in more detail in what way the role of a judge is different from that of other public officials and why that merits the judiciary being treated differently in regards to a register of financial interests? Yes, if you are, let's say, a councillor in a local authority and you are engaged in the business of the authority, you will be involved in making decisions that involve the spending of council money, the placing of contracts, the purchasing of services and so on. It is perfectly understandable that, in public life, people should be able to know that when an individual councillor is voting on whether a particular company should be given a particular contract, it should be publicly known what, if any, interests that that councillor should have. Judges fulfil an entirely different function. They administer the law. They resolve disputes between parties. By their imaginative development of the law, they improve the law, they extend it, they explain it in their judgments. That is an entirely different constitutional function. Now, if I could put it to you this way, in a devolved Scotland, the ministers, the legislators, like you and the judges, as I once was, carry out their quite different functions in their own different ways. That is dependent upon their doing so in a spirit of mutual confidence in which the three organs of the state carry out their functions in the knowledge that they have the trust of the others. That is why, in Scotland today, our devolved democracy is working so well. The assumption underlying this petition, of course, raises a matter of extreme concern. The petition implies that there are judicial office holders in this country who are unfit to hold that office. If the committee exceeds to the principles behind this petition, then I think that it would be very regrettable because it would mean that this committee had evinced its own belief that there are judges and sheriffs in this country who are not to be trusted. Today, I would like to invite you as a committee to demonstrate your confidence in this country's judiciary. If you were to do that, I am convinced that both you as legislators and the judiciary would be all the better for that. Thank you, Lord Gelford, for that response. I think that it was important to get that fundamental view on the record. If I could move to looking at other jurisdictions, what is your view on the fact that the United States has successfully introduced a register of judicial interests? Do you think that the system in the States has increased public confidence in the judiciary? I do not know if you would want to have a judiciary here like they have in the United States. It is entirely a matter of your own personal point of view. I am not giving you my view, but you can guess what it is. I will not pick up on that particular point, but has there been any evidence on the impact that the US system has had on judges' independence or the way that the media, for example, treats judges in the USA? I would be very sorry to see a judiciary in which candidates ran for election. I would be very sorry to see a judiciary in which candidates' election campaigns were based upon fundraising from companies and corporations who would be lit against in their courts. I would be very sorry if the day ever came where, before appointment, judges had to come before a committee of this honourable legislature for confirmation and for examination of their political, ethical and social views. I am delighted that you are with us this morning. When the petition first came before us in 2012, I thought that it was rather vexatious. However, we went through the normal process that we do and initiated the inquiries as is our want. What surprised me, given that you had a record of giving evidence to other committees of this Parliament and given that there is nothing terribly controversial in the evidence that you have given us this morning in response to the petition, was why you felt that it was inappropriate to comment to the committee at that much earlier stage, before the petition started to gain attention and momentum in the media, and to meet but only privately with the convener and deputy convener as was of the committee. Presumably, to say to them what you have said to us today, all of which, unfortunately, gave wind to those who felt that there was something slightly paternalistic in the approach that was being suggested, which was one of, well, I am not terribly interested in discussing this. I have told you that I think it largely a bunch of nonsense. Please accept that to be so and carry on, if I can put it like that. I am interested in what was the reluctance and what do you feel could only be said in private that you feel able to say today? I do not know if it was you, Mr Carlaw. I think that it may have been you. I probably added a bit of colour. You said that I looked down upon the Hoi Ploi. I freely admit to a bit of colour in order to compensate for the magisterial response that we had received, Lord Gil. I think that your remark might have come as a surprise to people who know me, but this is all water under the bridge. We cannot keep harping on about this forever. The main thing today is to discuss this petition, which is what I am here to do. You have asked the question and I have got a jolly good answer for you, so here it comes. The point was that in two detailed letters I set out my reasons for why I was against this petition. I hope and I think that I set those reasons out with the greatest of clarity. I had no further reasons to add to that, and therefore I was quite satisfied that I had placed before this committee all the help that I could give it. I have appeared numerous occasions before the Justice Committee in this very room, so it is not as though I have an aversion to appearing before committees. I am happy to be here today and I am enjoying this stimulating conversation. Having given you all that I could do, there was nothing to be gained by my coming here. I had also to consider the office of Lord President, which I then held. My judgment was that it was not a situation where, under the Scotland Act, it was necessary that I should come here for examination before the committee. That was the view that I took. I am aware that you take a different view, and I hope that, in differing on that, we will not fall out. I am sure that we will not. Obviously, you then did meet privately with the convener and the deputy convener to explore the very issues of the advice that you felt you had given us. I only suggest that, in so doing, it created, beyond this committee, an impression that there was a reluctance to bear witness to the advice that had been given or to allow us to explore with you the contrary advice that we had received, which, again this morning, you have dismissed from the former chair of the JCR. No, I think that that is a highly overdramatised view of what I did. It seemed to me that, since there was concern among the committee, it was perfectly reasonable for me to meet the then convener and discuss what his concerns were. What came out of that was really quite helpful, because I was able to tell him things that he did not know. I told him, for example, that if he wanted to know what all my assets were, he could go to the Scottish Courts website and get them, and he did not know that. I also told him that I was perfectly happy if it would help to institute a recording system for recusals. He said that he thought that that would be a good idea, and I went back to my office and my staff duly implemented that. Have you got any questions for me about the merits of this petition? I should say that I remain broadly sympathetic to the views that you expressed. I simply say to you that I think that it was unfortunate that we found ourselves in the position that we did. Mr Cartlaw, this is water under the bridge now. Well, that is why I am moving on. Please ask me some questions about the petition, if you may, because I think that that is what is the most profitable use of time. I will ask questions of the petition and also on the remarks that you made in opening and in response to the answers that you gave, if you will forgive me to allow me to frame my own questions rather than have them suggested to me. You spoke movingly and with conviction earlier about why you felt that this petition was inappropriate and unnecessary. I would suggest that, probably representatives of each of the professions who have ever found themselves the subject of a register, their leaders would have said much the same about the character of the individuals with whom they themselves kept company. That in itself was not an argument against the register. You said that it would put us out of step with the rest of the United Kingdom, which is something of a monkey see monkey do argument. Scotland has led the way in a number of different aspects of legislation, and the fact that other parts of the United Kingdom have chosen not to do something is not in itself an argument. I simply ask you, despite the eloquent way in which you spoke about the character of the individuals involved, uncomfortably for us both perhaps, do we not live in a more cynical age in which transparency and the aims of the petition as set out have become part of commonplace life and that which many of the public now expect of us irrespective of where we find ourselves serving? Well, you may be right. It may be that the public, it may even be that the legislature is in a more cynical frame of mind than in the past. That may be just an aspect of the modern world, but I know of no example of a case where this register would have prevented it from occurring. As far as I can see, any problems that are likely to arise in this area are exactly the sort of problems that this petition would not address. What I've mentioned to you is the most common one, and that is the case where the judicial office holder either knows one of the parties or knows one of the witnesses. A register is not going to pick that up. The petition also mentions the New Zealand situation. Of course, as the committee may know, when the proposal was put to the New Zealand Parliament in February, it was defeated by 104 votes to 16. If you don't have the documentation about that, I'd be happy to make it available. I read it up in preparation for this meeting. In that case, it arose from a most unfortunate situation where a judge in a case owed money to one of the lawyers. Obviously, it was deplorable that such a judge would sit in that case, but I think that you'll appreciate that that would not be caught by this register. What it really comes to is that this register does not meet what appear to be the concerns, and, on the contrary, there is just no evidence basis to support it. In essence, your argument beyond all others is that the actual objective that is established in the petition by the petitioner would not necessarily satisfy the objective that he potentially is trying to seek. That is my view. Can I ask you then just finally, and given that you accepted that we may live in a more cynical age than neither of us might wish that we did, is there in your mind something further yet which might arise in the foreseeable future in the most general of terms, which might give further public confidence? Given the illustrations that you gave of the oath and the process that currently exists, do you think that that in itself is properly understood by the public in terms of the confidence that it can take in the judiciary? Yes, I do. I feel very strongly that the people of this country have a judiciary whom they know and they trust. It is one of the reasons why one would want to live in a country like this. It is important that the public should know that the Scottish judiciary enjoys a reputation throughout the judicial world that is out of all proportion to the size of our small nation. The influence that it exerts in judicial thinking is enormous. The Scottish judiciary is admired, it is respected and it plays its part in the international world of judicial affairs. We should be very proud of that. It is one of Scotland's best assets, and it would be such a tribute to our judiciary if the committee were to acknowledge that by its decision in this case. I have to be honest with you that I am very impressed with what you have said to us this morning. I want to perhaps ask your opinion on something that no one has actually raised and that is that if—and I use the word if cardedly—there was to be it. Do you think that that could actually put our judiciary at risk in terms of security and terrorism? I do not think so. I do not see that as a serious problem. As you will have gathered from my previous answers, I simply think that it would just achieve nothing. The reason why I ask is because I think that this register would introduce another layer of information, which is perhaps greater than currently available, despite the fact that it might not have a practical role. I am just thinking that would it be wise for us to have that out there in the open? I really do not think so. I will ask one question. Short of agreeing with the petition, which I know that you are encouraging us not to do, do you believe that an enhancement of the complaints system could address any concerns that people may have about the interests that a sheriff or judge would have sitting in a case? Given the number of cases that go through the Scottish courts in a year, the volume of complaints that come to the Lord President is remarkably small. Very, very few of those complaints are upheld. There is a very efficient system for investigating them. It is carried out thoroughly and effectively. I do not really think that it is in any urgent need of improvement. It is working well. Of course, the role of the complaint reviewer, we have to remember, is not to deal with the merits of those complaints. The role of the reviewer is to ensure that the complaints are handled correctly and that the process is carried out in accordance with the regulations. That is a useful function and it is very helpful to have a reviewer. On the merits of the complaints, I think that you may be reassured by me that it is being handled very well. In normal circumstances, who would take a complaint? Would it be a defence lawyer? Would it be a witness? Very often, the complainer is the losing party in a litigation. It is perfectly understandable. There are very few official complaints, if I can put it that way. They are mostly from members of the public. We have a very effective system of dealing with them. As soon as they come in, they are immediately assigned to the disciplinary judge who then reads the papers. If there is a reasonable basis for investigating them further, they are then investigated by an independent investigator. For example, if it was a complaint against a sheriff, it would probably be carried out by a sheriff principal from another jurisdiction. The matter has gone into very thoroughly. At the end of the day, it comes before the Lord President with a recommendation that he is free to accept or to modify. I suppose that the follow-up question is, if someone was to make a complaint, they must already have a suspicion that something is untoward with the sheriff who is presiding. Whether that information is on a register or not on a register would be irrelevant. You would be surprised how few of the complaints have any substance in them. When they have substance in them, in my experience, it tends to be as to the behaviour on the bench rather than to any personal interest on the part of the judicial office holder. Sometimes judicial office holders do get exasperated on the bench. You would be surprised. Colleagues of Angus. With regard to the Scottish Law Commission, I am clear that you would like us to take a decisive action on this petition. In doing so, would it be your view that there would be some merit in the Scottish Law Commission examining this issue in more detail? That is not a matter for me. The Scottish Law Commission will drop its programme of work, and that will then be approved by the justice minister. The justice minister may make individual references to the commission on ad hoc topics. It may be that the justice minister would wish to refer that to the commission. That is a matter for him. But you do not have a view on it anyway. Well, for the moment, until someone can come up with a specific example of a case where this register would have made any difference, I will continue to take the view that it achieves no purpose. John Finch-Ever, Lord Gill, once again, the purpose of the petition that was before us and that was submitted. You made reference earlier to the petition that only calls for a register of pecuniary interests, but when you read further into the petition, it talks about submitting the interest and hospitality that is received to a publicly available register of interests. We have registered in place and the registers have been instituted under your Lord Presidency in relation to the list of recusal public register there. We have, and the petitioner kindly furnished us for today's meeting with the Scottish Courts and Tribunal Service judicial members' shareholding register, which has been introduced as well. Surely the petition has served some purpose and action has been taken to address some of those issues, because you mentioned earlier that when you met with the convener and the deputy convener of this committee in private session, you referred to the register of recusals. Surely the debate that we have had around this petition has been useful and has moved not only the Parliament forward and the petitioners' issues forward but also moved to Lord President's office forward? I disagree with you emphatically, Mr Wilson. All that the register of recusals has done is to prove exactly the point that I made to your convener at the time, and that is that there has not been a single example of a recusal, which would be in any way connected to this petition. It has been useful evidence, from my point of view, in demonstrating that what I had imagined was the case is the case. The second point is that, as far as the register of interests of members of Scottish Courts are concerned, that register was in existence long before this petition was lodged, so this petition has not been the cause of that. That appears to have concluded our questions. Is there anything else, Lord Gill that you want to add? No, thank you very much, Mr convener, for inviting me and thank you for the cordial atmosphere in which this session has been conducted. I have sincerely tried to help the committee and I hope that what I have said has been helpful and that I would strongly urge you to refuse this petition. I do not think that we are going to make a decision on it this morning. I will ask agreement for the committee that if we drop a paper to be discussed at a future meeting, so that we can collate all the information, the comments that Lord Gill and others have made, and we can make a final decision at a future meeting. The colleagues agree with that course of action. I indicate a previous meeting that we would try and invite the new Lord President when they were appointed to give formal evidence to the committee. I am not sure if the committee is still of a mind to wait on the appointment of the new Lord President and invite because the new Lord President, we have a different opinion than the former Lord President in relation to giving evidence before this committee. I am hoping to be for the committee to agree whether they want to do that. I was not party to the previous conversation, so I do not know what the members agree with all the angus and jacks. I am happy and feel that I am in a position to make a decision, so I do not need any more meetings on this other than our own meeting. Given the situation that we found ourselves in with the previous Lord President, perhaps some written evidence from the new Lord President would suffice rather than asking him to appear, he or she, to appear at this committee again. I think that there is a distinction between the petition that we are considering and some of the more general issues that have arisen during our consideration of it. I think that the evidence that we have heard this morning is quite compelling in relation to the decision that we will arrive at in relation to the petition itself. What we might suggest by way of any future examination of the broader issues is separate. In order to arrive at the determination of the petition before us, I feel that I now have the evidence that I would require in order to do that. I see most members of the committee nodding at that, so I think that the suggestion that we bring a paper to a future meeting and make a decision at that point, having collated all the information that we have gathered up to this point, I do not see any desire from the members to seek any further information or to wait until we can get a response from the new Lord President. I do not think that there is any demand for that. My comments were based on John Wilson's suggestion that we should seek the new Lord President appearing here. I do not think that that is helpful. I would concur with other colleagues that I also have sufficient knowledge now to make a balanced judgment. We will bring a paper to a future meeting and we will debate the information that was so far collated. I do not need anything else. Once again, Lord Gill, thank you and Mr Flynn for joining us this morning and we will deliberate this future meeting. I thank the members of the committee, too. I will suspend the meeting for a few minutes until we change witnesses. Our next item of business is consideration of PE1580 by Sheila Duffey on behalf of Ash Scotland on guidance for the Parliament staff on international health treaty standards. I welcome the petitioner, Sheila Duffey, from Ash Scotland to the meeting. She was to be accompanied this morning by Professor Jeff Collin, the director of global public health unit at the University of Edinburgh, but I think there might be some travel problems this morning. I had to experience them myself. If he does manage to get along, he is more than welcome to join you. In the meantime, if we just ask you to leave off the discussion on the petition, I will give you five minutes or so to introduce the subject and then we will discuss it further. Thank you, convener and committee, for making the time to hear more about this petition. I am sure that Professor Collin has been unavoidably delayed. He will be able to send further information to you later if you need it. Scotland has a proud record of tackling tobacco. It is hard for me to believe that next year we will see 10 years since Scotland implemented smoke-free public places. I would like just to take a moment to remember what tobacco is. It is widely available with eight tobacco retail outlets for one pharmacy in Scotland, so it is easier to buy poison than it is to buy medicine. It is addictive and dependency-forming and engineered to be as highly so as possible by tobacco companies. It is primarily a childhood addiction, not an adult choice, and it is lethal to at least one in two, and recent research suggests as many as two in three consumers when used long-term in accordance with the manufacturer's intentions. In Scotland, tobacco is estimated to be responsible for around a quarter of the adult deaths recorded every year, some 13,000 lives lost early. Behind each death, there are likely to be over 20 people living with chronic and disabling disease caused by tobacco. This is a major and largely a hidden epidemic, and it is a commercially driven epidemic, driven by an industry with a long and well-documented history of denial, delay and deceit with regard to health measures, and an industry that has demonstrated that its main interests lie with its profits. Because the tobacco industry is a worldwide predator, the world health organisation developed and put forward the first and only international public health treaty, which has 180 signatories, including the UK and the EU, and which covers 90 per cent of the world's population. The treaty requires parties to introduce broad brush measures to try and reduce the harm from tobacco. Things that we already have, such as tobacco tax, smoke-free enclosed spaces and curbs on tobacco advertising. The petition relates to article 5.3 of the Framework Convention on Tobacco Control, which requires parties in setting and implementing public health policies to act to protect the policies from the commercial and other vested interests of the tobacco industry. That could be quite a wide instruction, but fortunately the conference of parties developed further detailed guidance about how the article could and should be implemented. To give you one example of the kind of things that are in the guidance, parties should interact with the tobacco industry only when and to the extent strictly necessary to enable them to effectively regulate the tobacco industry and tobacco products. I believe that we need to raise awareness of the treaty in Parliament. I believe that there have been recent actions unknowingly committed which have gone against our obligations under the treaty. The point of the petition is to ask Parliament to consider the international treaty and its article 5.3 to think about Scotland's obligations under it and to develop guidance for parliamentary staff to ensure that we meet those obligations. Can I ask that? First of all, I don't know if it's declaring an interest, but I'm not a smoker. I'm not a fan of the tobacco industry at all. My own personal view is that it's not an illegal product and I'm always concerned that we sometimes appear to be straying into private decisions that people make around whether they should smoke or not. I fully supported the ban because it affects people who choose not to smoke. Where do you see the line being drawn between the obligations of the Parliament to take a view on behalf of the public and to step across into the private lives of individuals? What I'm talking about here is an international treaty to which we are sitting, not individual lives and tobacco control measures. That's very clear, and that's from my point of view, clarifies the situation. Does anyone want to come in? Jackson and then Kenny? I would say all that the convener said in terms of having a lifelong non-smoker and having no particular interest in the tobacco lobby at all. Does the World Health Organization define what the tobacco industry is? Are you part of the tobacco industry, given that you depend on its existence for your employment? No, I don't depend on its existence. Is that not why Ash exists? Ash was set up by the Royal Medical Colleges because, for over a decade, the scientific evidence about the harms of tobacco had not got out to the general public because of the PR activities that depended on the tobacco industry to exist. If there was no smoking, there would be no need for Ash effectively. If there was no smoking, there would be no need for Ash. Should our meetings with you therefore require to be held in public, as you have suggested? I am entirely happy with transparency as a working principle. Do you encourage that? Do you list, for example, on Ash's website the politicians that you are meeting, when you are meeting them and the issues that you discuss with them? Ash Scotland is not subject to an international treaty. But you are part of the tobacco industry? No, we are not part of it. You said that it wasn't defined, so I am asking if you are part of it. Ash Scotland is a health charity that is working to counter the misinformation and interference of the tobacco companies. Should it do that correctly then? I notice in the evidence to this petition that, despite the over a million pounds of public funding that you receive, you managed to make a number of errors in the submission relating to this petition. If you exist, should you not exist to ensure that you accurately represent the dangers that are presented by the tobacco industry rather than making factual errors in a petition to this Parliament? There was one error made in that a member of my team accessed the wrong link and quoted part of someone else's submission. So it was somebody else's fault? But it does not. No, I take responsibility for that. It was quite a combative answer. I understand that, but I think that if you wait till my stuff fully answers the question then you will get the opportunity to come back in with another question. Thank you. There was one factual error made in our submission, which I take responsibility for. As soon as I was made aware of it, I drew to the attention of the committee and proposed a new form of words. It makes no difference whatsoever to the point of the petition. The principle point is the way in which the Scottish Parliament now addresses the issue of engagement with the tobacco industry. The principle point for me is Scotland's obligations under the Framework Convention on Tobacco Control article 5.3 and how those are effectively communicated to parliamentary staff so that we meet our obligations. To achieve compliance with an international treaty to which we are signatories. In respect of the engagement with Parliament, what is it that you want to see us do? What I would like you to do is to implement the guidance on article 5.3 in terms of codes of conduct and guidance for parliamentary staff to ensure that our activities in Parliament are compliant with an international treaty. To do that we would have to do what? That would be your decision in terms of compliance with the guidance on article 5.3. In my opinion, if you were asking for my advice. I was trying to get to earlier really, but what is it that you would like to see us do in order to comply in your view with the treaty? What I would like to see is full transparency. That is transparency not just about the tobacco industry's involvement through its own companies and its vested interests, but transparency about the accuracy of the information that they are submitting to Parliament. I would like to see defined parameters on appropriate engagement with the tobacco industry that are in line with 5.3. I would like codes of conduct to be issued to guide parliamentary staff in their interactions. I would like to see submissions by the tobacco industry and its vested interests fat checked by an independent authority such as SPICE before being submitted to committees. What currently do you think happens that gives you cause for concern? To my knowledge, I have noted three instances in which I feel the obligations of the treaty are not being well met. One in which campaigns information by Philip Morris, which made inaccurate statements, was submitted to a committee. On that point, was that picked up and addressed, or did that remain evidence that went unchallenged? I wrote as a result of that evidence being put in and asked for this to be looked at in terms of engagement with tobacco companies. The health committee has taken evidence from Japan Tobacco International who took the opportunity to comment on issues such as smoking restrictions and hospital grounds. On another piece of legislation, smoking vehicles, the TMA was invited to give evidence on proposed restrictions on smoking vehicles with under 18s present. In both of those examples, those were public sessions held in public, broadcast in fact, for all to see, and where the evidence that any party was submitting was available to challenge from within the committee that was hearing it. Absolutely. Transparency is definitely part of what is required under article 5.3, but there is also the issue of parameters of appropriate engagement. I am trying to understand what would have happened. Are you saying that those witnesses from the tobacco industry should not have been called to the public session of a committee where their evidence could be examined by the committee members present? The framework convention makes clear that there are appropriate parameters for engagement with the tobacco industry and its vested interests, and they relate to proposals to regulate the industry and its products. The engagement that some Scottish Parliament committees have had with tobacco companies goes beyond those parameters. I think that the Scottish Parliament is commendable in its openness to hear from everyone, but I think that there are suggested obligations under this international treaty, which is really the point of this petition, is to ask that they be considered and put into guidance for staff. Effectively, you believe that organisations that represent the tobacco industry or the tobacco industry themselves should be on a list of prescribed organisations from whom parliamentary committees should not be able to hear evidence. Perhaps you have not clearly understood what I was trying to say. The framework convention makes allowance for tobacco companies and their vested interests to be consulted and to give evidence on issues relating to regulating the industry and its products, but it sets parameters on their involvement in other issues. Parliamentary committees should be prescribed from hearing from the tobacco industry on a range of issues, which you say are mandated under the World Health Organization treaty, of which we are a signatory. I think that you are asking me to get into the detail of the guidance for parliamentary staff, which you would have to decide. I am asking you to issue guidance to parliamentary staff and consider and raise awareness of the international treaty. The content of the guidance is your decision. I am very happy to be involved in offering advice on that. I fully support the international action. It seems to me that the behaviour of multinational tobacco companies, especially in the developed world, has been disgraceful. Sadly, they have also been supported by countries such as the United States, putting the threat of sanctions there on. What I am looking for is the practical effects here, because I have to say that in 16 years as a parliamentarian, although I have seen communications come in from the TMA, on everything that has affected, to some extent, the consumption of tobacco. It has usually been by third parties or those who would work within the tobacco industry such as the Grocer's Federation over display, such as retailers over sale, so how do you see it cascading down and what would be the practical effect given that the number of times that parliamentary committees or parliamentarians interact with tobacco manufacturers? I do not know if I have ever had a letter from Philip Morris, I probably have, but I do interact with third parties who would not necessarily be classified as part of the tobacco industry that may actually be more important if I could put it that way in the lobbying. I agree with you that there are third parties such as the Scottish Grocer's Federation who receive funding from tobacco companies who have gold members who are tobacco companies. To me, they would not be classified as vested interests of the tobacco industry, but the Tobacco Manufacturers Association and the Tobacco Retailers Association would be classified as such. Thank you very much. It feels that you have been facing a barrage of questions, but I think that they are all meant in the most sincere way that we are actually trying to get to understand your petition in detail. The fact that you are suggesting that we need to stay within certain parameters in terms of engaging with the tobacco industry, those parameters are questionable. They are grey areas. You have heard very good examples of retailers and constituents who trade not only just in tobacco but other products as well. They have a genuine concern and they lobby their counsellors and their MSPs and MPs in this area, so they will always be an area of a crossover. I am just a little reluctant to accept the petition the way it is because if you are suggesting that I have to somehow stop people in their tracks because there may be an overspill in what they are supposed to do. Perhaps you can explain that to me then because I am now looking at this and I am looking at my constituents who would come to me with issues regarding the retail industry in particular. If, for example, they also sell tobacco and that is an issue as well, I cannot say to them that you need to stop there now because now you are going beyond a level where I am supposed to engage with you because it cannot be done. I cannot clinically remove that from their discussion. What are you actually suggesting then? I am suggesting simply that you look at the Framework Convention on Tobacco Control article 5.3 and the guidance issued by conference of parties. That would not preclude your interacting freely in any way with retailers or retailer organisations, even if they are part of the echo chamber for tobacco industry messages. That is really about the big tobacco companies and the tobacco companies' vested interests such as the Tobacco Manufacturers Association and the Tobacco Retailers Association, where their main business and purpose is to represent the tobacco industry. Someone like the Scottish Grosses Federation, the National Federation of Retail News Agents or your local retailer do not come under that category. Their main business is something else, so it would not include them. I accept what you are saying. There is no confusion for me from that angle. There is a hesitancy in me to say that, whilst you are quite correct in saying that you are talking about big tobacco companies and all the rest of it, I have to be honest and say to you that I normally deal with my constituents at a very low level. There are small retailers, news agents and tobacconists with mixed businesses. We have no choice but to allow them the space to discuss issues that are facing them, and that may also include tobacco. There is no getting away from that. Regardless of article 5.3, I think that we need to be practical in the sense that when it comes to the street shop on the corner, we have no choice but to allow them that space. It would be unreasonable to expect us not to do so. No-one is suggesting that you should not do so. I think that the only issue would come if you had the chief executive of a tobacco company as one of your constituents, and you might have to then look at how you interacted with them. Retailers and retailer organisations to me are not included in the definition of vested interests of tobacco companies, so I do not see any issue or any limitation on what you are currently doing in those terms. Unless you are talking about the PR executive of a tobacco company being one of your constituents, in which case I would suggest that maybe a little care is warranted under the framework convention. Unlikely, I have got the chief executive living in my constituency, but one lives in hope. Thank you, convener. Good morning. The Scottish Parliament, when it is taking evidence of the committee, prides itself on being open and transparent. What you are saying is that if someday it is to give evidence for tobacco companies or on their behalf, the tobacco companies are here, we are not allowed to take that evidence and listen to their side of the argument. Has that been open and transparent in listening to both sides? Well, what I am asking is that you take a good hard look at article 5.3 and the guidance on implementing it and decide what that means for your committees. At the very least, I would suggest that tobacco companies, given written evidence, there should be a level of independent scrutiny of what they are saying and what the basis for it is, given the amount of misinformation that they have been held responsible for. Would the same of scrutiny apply to us if they would give evidence to committee? Absolutely. I would welcome that, because we try to give evidence based on what we know in terms of published peer review research and experience of other countries. I am very happy for it to be open to scrutiny. It is always scrutinised in detail by tobacco companies, which is why I thank GTI for picking up on the unwitting error in part of our petition. I was going to come back on the type of evidence that is submitted. It is not really possible for our clerks or the staff who help and assist in the running of the Parliament to know the veracity of every piece of information that is sent to us. We have to make judgments, we have to make decisions based on the information that is presented to us and people will come at that sometimes pejoratively, subjectively. They will have their own opinions, and it is not really the role of the staff here to sift through evidence and say, well, I am not going to allow that to go forward, because I do not believe that to be true. Would that be what you are asking for, require the staff to get into that level of judgment about the information that is being presented to them? What I am asking for is that you issue guidance to staff to allow them to make judgments easily and in a well-informed way about what is appropriate in terms of our obligations under an international treaty. I am asking that, potentially, you might consider asking an independent authority who you trust such a spice to fact-check tobacco industry submissions. That is specifically about saying that the tobacco industry who should be treated differently from every other organisation that wants to give evidence or information to this Parliament. I am trying to think of an example of a tobacco matter. Probably, as it happens most of the time, you will think of one as soon as you have finished the meeting. I cannot think of one at the moment, but I have received information from organisations in respect to issues that the Parliament is looking at, such as legislation or inquiries or what have you. It makes you stop and think, why is this organisation contacting me about that? I do not see the relevance of the information, but it does not stop them from making that contribution. Are you saying that we should look at the information that is being sent to us by the tobacco industry if they want to comment on a health issue or on an education issue or on some other aspect of our work and just rule that out purely because it comes from the tobacco industry? What I am asking is for Parliament to consider Scotland's obligations in Parliament as signatories to an international treaty and there is no other industry. However, dubious their methods may be, however harmful their products may be, there is no other industry that is subject to an international treaty in this way. Is the treaty a form of censorship? To be honest, I think that it would save you time because you are busy Parliamentarians and if you have to sift through the misinformation and the arguments that are being made against and the misleading submissions that tobacco companies will slip in with their... The point that I am making is that we get misleading contributions sent to us all the time. It is part of the role of not just the staff but also the politicians to take on board the information that is sent to us, decide what we agree with or do not agree with, to check out the veracity of that. That happens on a daily basis, that is our jobs from morning to night. You are specifically asking this committee to support a petition that says that one organisation, one sector of society has to be stripped of its ability to contact us in a way that everyone else takes for granted. To be very clear, I am not suggesting that you should not hear from tobacco companies and their vested interests, but I am asking you to consider Scotland's obligations under an international treaty to which we are signatories and in that respect the tobacco industry is unique. Okay, so we are being asked to treat them as a specifically different type of organisation, so we can hear from the armed industry, we can hear from the sex industry, we can hear from all sorts of sectors that some people might find controversial and in some cases actually illegal. We can hear from those organisations but not from a legal entity like the tobacco industry. You can hear from anyone you choose to hear from. What I am asking is that you consider what this treaty means for the Scottish Parliament and issue guidance to staff accordingly. Could I ask, because this might be helpful, obviously presumably there are other signatories to this treaty? Yes. Are you able to advance to us the best practice of any other Parliament that is a Parliament of a country that is a signatory to the treaty? Are you able to advance to us the best practice of any other Parliament in the way in which they have sought to implement clause 5.3? Well, I understand that WHO is actually gathering examples and looking at this at this point and Professor Collin was invited to attend an advisory meeting with WHO on this, so he would have been able to give a fuller answer, but may I suggest that the committee writes to the WHO and asks them for current best practice examples as part of informing your decision? From other Parliaments. How many signatories are there to the treaty? There are 180 if you count the EU 179 countries. Okay, fine. That might advance things for us slightly if we can see that. No other colleagues? John Lennon, you want to say that? One thing that crossed my mind, Ms Duffy, is the issue about the public scrutiny, and you indicated that the tobacco industry in particular may provide misleading or misinformed information to the Parliament. Most of the work of this Parliament, particularly of this committee, is subject to public scrutiny. It's not just parliamentary scrutiny that a lot of the submissions are subject to. They're basically the public in this committee in particular. We receive submissions from a number of individuals and organisations who have read online the submissions that have been made by organisations and will then forward on comments or try and correct misleading information. I'm not excusing the tobacco industry for what they trade in, but surely if this Parliament is doing its duty and is taking views from all sides and allows the public and other organisations such as your own to comment on the submissions that have been made, surely that's greater scrutiny and highlights more the work or the misleading information that may be being provided to politicians and to the Parliament. I have a fear that we are actually asking the parliamentary clerks and officers to become gatekeepers for information that is provided to the politicians and to the public because the information that comes into this Parliament is then publicly available. Those clerks will effectively become gatekeepers to the information that comes to the Parliamentarians and the information that is made publicly available to the electorate in Scotland to engage in the debates and discussions that are taking place in this Parliament. This petition isn't focused on the tobacco industry with its history of deceit, denial and delay. It's focused on the only international public health treaty in existence. My presumption in bringing the petition was that the Parliament would wish to consider what its obligations are under that treaty. I think that your question is a relevant one and would need to be part of those considerations on guidance. Anyone who wants to ask the Parliament what its view is on the treaty because it might actually believe that it is currently working within the treaty guidelines. Are there any evidence to suggest otherwise? I think that part of what is set out in the guidance on article 5.3 is appropriate parameters for tobacco industry involvement in influencing health policy. Several examples that I have cited show that there is not a good awareness of those obligations. That does not mean that the Parliament does not believe that it is acting within the treaty. I would be very interested if you would consider it. We have to establish whether the Parliament believes that it is currently acting within the terms of the treaty. Again, that comes down to a subjective judgment. Does it not? My impression was that there perhaps wasn't a high level of awareness of the treaty and its obligations, which was the reason why the petition was brought forward. Jackson Carlos has given a very good suggestion. I think that it takes Sheila Diffie out of a difficult position as well that perhaps we want to see what other signatories have done. You are absolutely right. I had not heard of the treaty myself until your petition came forward. Yes, it has created a win. At least you have made one person more aware than others. I think that it is a useful petition to come forward. I think that we should possibly explore. You are quite right, chair, to suggest that we should ask the Scottish Parliament its view on how we view the Parliament's views and how we are upholding the new treaty as well. To suggest that we are not doing it is almost an admission that the Parliament is not fulfilling its treaty agreements. I think that that also needs to be done. Perhaps I can suggest that if we write to both the organisation who is responsible for the treaty in the first instance to see what good practices are available internationally and the Scottish Government, once we have had both responses, we could maybe come back to this committee to see how we can take it forward. Just to convene out the clarification, the point has been made, the 179 countries, if you include the EU, 180 organisations have signed up to the treaty. Just for clarification, are those Governments who have signed up to the treaty or to the Parliament? I have just tried to make that definition. I think that Hans Allan Malik has made that point. As well as writing to the Scottish Parliament and the corporate body, we would need to write to the Scottish Government to seek the Scottish Government's opinion on whether or not the Scottish Government is acting in line with the treaty that it has signed up to, because the reality is that there are two separate entities. It would be unfair to say to the Scottish Parliamentarians, the back benchers and the committees that we could not consider evidence from the tobacco industry, but at the same time, when the Government is dealing with their legislative framework and carrying out the opinions or taking opinion in terms of government legislation, are consulting with or taking evidence from the tobacco industry. It is just to try and get that definition right in terms of whether or not the Parliament and the Scottish Government are acting under the same obligations that are applied within the treaty. The Scottish Government, in the current five-year national tobacco strategy, has undertaken to do a review of implementation of article 5.3 within the lifetime of the strategy by the end of March 2018, but the guidance on article 5.3 makes clear that the treaty obligations extend to all levels of government and to those involved in informing and informing health policy and scrutinising it, so certainly the committees would be part of the definition. I think that we have had some suggestions on how we can take the petition forward. It has certainly raised awareness, so there is no question about that. I just think that we have to identify where everyone thinks that they are currently with the situation and we will look at that information when we get responses from the organisations that we have agreed to contact. We will obviously keep you aware of the responses that we receive and we will welcome your comments and due course we will continue the petition. Jackson? I think that there is one main point in contacting the World Health Organization. I am not asking for them to repeat to us their guidelines. I am looking for specific examples of best practice from other parliamentary signatures to the treaty. I think that that clarifies it. Obviously, we will take the petition forward and see what the responses direct us towards. Thank you very much for your time. Thank you very much for coming this morning. I will suspend for a minute or two again. Our second new petition today is PE1576 by Owen Martin on blue badges for children with autism and Down syndrome. Members will have seen the paperwork that has been sent to us, Spice briefing and support and evidence. Does someone want to kick off a discussion, Kenny? It seems to me that the transport minister is carrying out a review and review of this. It is due to be reporting or commenting imminently. On that basis, it seems to me that we should simply be perhaps trying to focus where the Government is at, given that we do not seem to have information from anybody else, but it might be a letter to Derek Mackay. It might be a time line. Members agree with that? Yes. We can keep that open and wait to see what the response back from the minister is and consider it at a future meeting. Agenda item 3 is our final item of business today, consideration of 1, continue petition. That is PE1495 by Rob Wilson on the use of gagging clauses in agreements with NHS staff in Scotland. Again, members have paperwork from the clerks and submissions. Does someone want to kick off a discussion on this? Public audit committee is looking at this. I would just go on and wait and give them the time to discuss it. I do not think that there is much more that we can do well on other committees addressing the problem. We will leave it at that then. Obviously, we can come back to us once public audits had its chance to deliberate. That means that we can formally close the meeting.