 I welcome everyone to the 29th meeting of the Justice Committee in 2015. I ask everyone to switch off mobile phones and other electronic devices and to interfere with broadcasting, even when they are switched to silent. No apologies have been received. I am inviting the committee to agreed to consider item 7, an issue that is paid from the Community Justice Scotland Bill. Item 8, our approach to scrutiny of the abuse of behaviour and sexual harm in Scotland Bill. Item 9, our work programme in private. Are you agreed? The next item is considering one affirmative instrument, the draft criminal justice and licence in Scotland Act 2010, supplementary provision order 2015. I welcome Michael Matheson, cabinet secretary for justice and government officials, will it lament criminal justice division, you are still here and Laura Mitchell legal services director. Can I remind everyone that the officials can take part in this item, obviously, with leave of the cabinet secretary, but not in the formal debate that follows and that the same applies when we come to consider the next affirmative instrument today? This is an evidence session. Cabinet secretary, you wish to make an opening statement. I can make a very brief opening statement. Committee members will be aware that the Scottish Sensing Council was officially established just a few days ago on Monday 19 October. It is planning for the commencement of the relevant provisions in the Criminal Justice and Licensing Scotland Act 2010. It was noted that there was no explicit provision within that act to authorise payment of fees and expenses to members of the council. Earlier this year, members will recall that secondary legislation was brought forward under the Judiciary and Court of Scotland Act 2008 to enable the Scottish Court and Tribunal service to provide administrative support to the council. It has been agreed with the Scottish Court and Tribunal service that payment of fees and expenses should also be made by them, given the administrative support functions to the council. The financial memorandum in the 2010 act envisaged such a role for the Scottish Court and Tribunal service in assisting the operation of the council. In this order, made under the Auxiliary Powers in the 2010 act, we will put beyond doubt the ability of the Scottish Court and Tribunal service to pay fees and expenses to members of the council. Express Authority to pay expenses to members of the council will help to give full effect to the operation of the council. I am, of course, happy to answer any questions of committee. There are no questions. I beg your pardon. Who is getting their hand up? Alison, sorry. Thank you. I just wondered if you shared my disappointment at the lack of gender balance on the new sentence in council. The constitution of it is, through the appointment that is part by the Scottish Government and by the Lord Justice General or the Lord Justice Clerk in his absence at the present moment. Of the members whom we have the powers to appoint to it, nearly 40 per cent are female—sorry, over 66 per cent of them are female—from the Scottish Government's nominees. The Lord Justice Clerk has decided to appoint individuals that they see as being appropriate. I know that that is an issue that the committee has engaged with the Lord Justice Clerk on previously. Overall, it is about 40 per cent to our female, but we have appointed individuals that we see as being the most appropriate individuals to represent the Scottish Government on the new sentence in council. It was not really about that, but it does not matter. I can now move straight to item 3, the formal debate. I invite the cabinet secretary to move motion S4M-14395 that the Justice Committee recommends the draft criminal justice and licence of Scotland Act 2010, supplement provision order 2015, be approved. I take it that no members wish to speak on the motion. I do not think that cabinet secretary will respond to that. The question is that motion S4M-14395 be agreed to, are we all agreed? I now move on to item 4, which is the—I think that there are other officials coming in, have they? I will not suspend. I will just waffle for a bit. That is what politicians can do. Many of us are paid to waffle. I cannot waffle much longer. Do not say that you can. That is not fair. I now move on to a further affirmative instrument. The draft international organisations immunities and privileges Scotland amendment order 2015. Cabinet secretary of year, of course. I welcome officials Nicola Wysdal. Is it Wysdal? Wysdal, sorry. Civil law and legal systems division and Alistair Smith legal services division. Can I go straight to questions from members? Cabinet secretary is not making an opening statement, Elaine, and then Roger Roddrick. I have forgotten his name, yes. Don't, Elaine. Drugs are picking in. I just wondered. I suppose that there is always something when you see banks and legal privileges and immunities that raises your eyebrows a bit. I wonder if you can say a little bit more about what sort of legal privileges and immunities would be conferred on this particular bank. I will ask you another question if there is any else with questions apart from Elaine and Roddrick. I am just interested, perhaps no more than that, as to whether any other banks, apart from the Asian Infrastructure Investment Bank, have known absolutely nothing about, just the clarity of why this particular organisation, if it is the only one, is going to be marked out. This follows an international agreement that was entered into by the UK Government. Part of that agreement is the immunity for prosecution for this particular bank in its operations within the UK. Part of the UK agreement to that is that it needs to have immunity from prosecution across the whole of the UK. The devolved competence around being immune from prosecution falls to the Scottish Government. The similar orders to implement similar provisions are presently before the UK Parliament. In effect, it provides it with diplomatic immunity and the provisions that are provided under diplomatic immunity. The immunity from prosecution falls to us. That is the purpose behind this particular order. There is a significant amount of background as to why the UK Government is seeking to have this bank base in the UK. My understanding is that the purpose of this bank is for it to raise money within the UK and Europe for investment in Asia. It is the purpose and part of the attraction that it wants to provide to being based within the UK is having immunity from prosecution and the diplomatic immunity provisions that it receives. I am not aware if there are any other banks that have immunity from prosecution, but there are a whole range of different organisations that have immunity from prosecution for a whole variety of reasons, largely through international treaties and the requirement for Governments to implement those provisions within their own domestic law. I will repeat your question. Cabinet Secretary, you looked at your official. Does he have a question whether there were any other banks apart from this one? There is none detailed within the order details, but we can check and respond to the committee on that matter. What assurances can you give us that Scottish citizens who invest in this bank are given the same safeguards as anybody banking with another bank? This is not a commercial high-street bank operation. This is an investment bank that is operating for infrastructure investment, so it is not a bank that is operating on a retail basis. It is not another high-street bank that is seeking to operate in the UK. This is an infrastructure investment organisation that is going to be operating on a global basis. The UK Government's desire to have it based in the UK. If it is not individuals, would it be companies or pension funds that might invest in it? I am not going where that is. No, I am concerned. I do not know enough about it, but I am concerned to understand it. There is supplementary information that has been provided by the UK Government in this matter. Our responsibility is the issue of helping to support the international agreement that it has reached around providing immunity from prosecution in Scotland. The nature of the business that I understand is raising investment in the UK with a view to investing in Asia in infrastructure projects. The concept behind it is that I understand that it is to help to support the Asian economy. In helping to support the Asian economy, there is a benefit to the UK and European economy as a result. My understanding is that, as I said, what I have heard is that it is about raising capital investment in the UK that can then be invested in the Asian economy. I thought that it was going the other way, unless I have been misreading the newspapers that were Asian capitals being invested in our economy, but there we are. Anyway, we appreciate that it is not your money that is involved in this, Alison. You are not an international investor, as far as we know. John Finnie, please. Some details back to Rod Campbell's point here. There are other banks. First yes, then. Yes, about banks that have the European Bank for Reconstruction Development, the Asian Development Bank, the Inter-America Development Bank, the Caribbean Development Bank have all been given privileges and immunities across the whole of the UK, which includes within Scotland from prosecution. Morning, cabinet secretary. Cabinet Secretary, are you able to say if these immunities are to the corporation, the institution or to individuals? It will be on the basis that there will be granted immunity from prosecution as an organisation. And I presume that the individual immunities for individuals will be to do with diplomatic immunity, which would be afforded by the UK Government. But this is immunity for the organisation to be immune from prosecution under Scott's law. If I might, it does include immunities for individuals in their official capacity in very much the same way as other listed bodies. The effect of the order is to add and further schedule into the international organisations, immunities and privileges, Scotland Order 2009. That says 15 schedules dealing with various bodies and this will be schedule 16. It is in very similar terms to the other immunities. It does extend to representatives in their official capacity. Can I ask about the practical application of that then? Does that mean that, if individuals or the organisation commit the crime of fraud in Scotland, they will not be prosecuted? You would afford them the same privileges for a diplomat in that they are immune from prosecution in undertaking their roles. Is that a yes, cabinet secretary? In effect. Similarly, money laundering. Well, that is much more complex in itself, but it makes them immune from prosecution. But keep in mind the purpose of this particular bank, that the UK Government is seeking to provide those powers to. If I might add, the instrument provides that the immunities may be waived by the bank. So, if an individual were to be acting outside of the intended role, perhaps fraudulently, then the bank would be able to waive the privilege. So, defroding their own bank in Scotland, might be, would not be subject to diplomatic immunity. Can I ask—and I read this for the first time. Can you answer that? I think that you have to defroding their own bank. Would you like to answer that? I take it that that would be covered by what you have just said. Well, part of the provision is that a person connected with the bank shall enjoy immunity from suit or legal process in respect of things done or admitted to be done in the course of the performance of the person's official duties for the bank, exempt to the extent that the bank shall have expressly waived such immunity. So, if someone is acting outwith what they should be doing for the bank, then they effectively no longer have that immunity. Pretty much like the UK banking industry, it was doing systematically over a number of years prior to the recent crisis. I am trying to understand Cabinet Secretary, and I read this for the first time coming down in the train with some astonishment. This relates to a piece of legislation that starts in 1968, and the UK Government had made a request to the Scottish Government to enact this legislation as regards crimes or offences that would take place in Scotland. That's correct. Yes, they are, of course. Is this the new politics that this building was supposed to be about? Because it doesn't sound like it to me, it sounds like more of the same. Of a situation where we would allow crimes to take place under the protection that this is financial institutions, defroding or committing some sort of offence? Well, there's a range of offences that banks have committed, yes. Of course, frauds are crime. It's a very serious matter to defrode. Part of the protection is in the course of them undertaking their duties. Obviously, if they're outwith that role, then they aren't afforded the same protection. Yes, it's more of the same, and I certainly won't be supporting it anyway. Can I just have an explanation? I know that we're kind of digging in here, but it says, how far is this within the banking, as I understand, it's reserved? So, how far is this to comply with the UK's role in this? I mean, how much flexibility does a devolved Government have in this? I don't know, because it says they're related or they're subject by the UK Parliament as it relates to reserved matters. I thought banking all this was all reserved. So, the UK Government has entered into an international agreement, with regard to this bank, and part of the condition of that international agreement is that those provisions apply across the whole of the UK. So, is this necessary just to bring Scotland into line? Let's put it in ordinary parlance. For the purposes of the UK Government to be able to deliver on the international agreement that they've entered into? No, I just wanted to explain what I've got with some other people. I'll have Elaine in the market, then I'll bring you back in, Elaine. Yeah, I'm still sort of uncomfortable about this. I mean, I totally appreciate this is not of the Scottish Government's making, this is the devolved competence of something that the UK Government's trying to do, but I feel to understand what a bank would be doing that would be breaking the law in Scotland, but that somehow they should be allowed to get away with it because they've got diplomatic immunity. I mean, say, that was part of their duties as somebody who works for the bank, but they were actually breaking the law in our country. I mean, why should they have immunity from the bank? For the same reasons that they're probably given diplomatic immunity from prosecution to the other banks that previously have been development banks, and this is a fact of an odd development bank for infrastructural investment. But for the UK Government in order to deliver on its international agreement, it has to achieve that immunity from prosecution across the whole of the UK and all jurisdictions. Doesn't it strike you that this is partly what's wrong with the banking sector internationally, that they can get away with breaking the law and have these sorts of agreements to enable them to break the law in different countries and the country that they break the law in can't do anything about it? I think we're into a much bigger debate there in terms of the operations of banks and the way in which they've been operating across the UK and across the globe in itself, which goes much wider than just this issue in itself. Margaret? I wonder, cabinet secretary, if there's another way to look at this, and I'm not sure that there is, because I understand the concerns that are being raised, and in fact I have the same myself. By giving diplomatic immunity, is there more of a positive case for ensuring information that may be of a very sensitive nature, that may be connected to organised crime, that may even have more sinister links to terrorism, to make sure that all this information is held and forthcoming as soon as possible? Is there anything to do with that within those provisions? I'm not entirely sure that it is linked to that, to be honest with you, because there are many organisations that are responsible for looking at and dealing with those issues that don't have diplomatic immunity in those issues. For example, Police Scotland deal with those matters in Scotland, but they don't have diplomatic immunity. No, this is part of an international agreement that's been reached, and part of the condition within that is the development bank, or the infrastructure bank, because it's described as being given immunity from prosecution, in effect diplomatic immunity across the whole of the jurisdiction in the UK. Roddie. Thank you, convener. Christian and Roddie. You're on an additional piece of paper, that's why. Thank you, convener. Good morning. What would be the consequences of the committee voting down this instrument? Well, my understanding is that this is a condition of the international agreement. If the UK Government aren't able to deliver an international agreement, I suspect that they will not be able to to follow that through. What will happen next? What would you do next? What we do, Bill, it's not our agreement, it's the UK Government's agreement. So they will obviously have to revisit the issue, and what the consequence of that will be is a matter for the UK Government, given its agreement that they've entered into it. Thank you. And now, Roddrick. Thank you, convener. John. A couple of points. I'm not sure whether you'll be able to answer this question in terms of who it is within the jurisdiction of Scotland is providing or likely to be providing the investment for the bank's use. We're not talking about, I assume, Joe Public, we're talking about, presumably, some specialist financial institutions in the first place. And in relation to the other institutions that were referred to, presumably, have they been the subject of affirmative instruments in this Parliament? I don't know if anybody can add, or why is this bank institution why is this affirmative instrument coming up now? Roddy. Roddy, I think they have been. What I should say, just come back to the point about if this committee wasn't to approve this particular order as my understanding, there are other routes which the UK Government could pursue in order to achieve their objective. Which are? That's it. Cabinet Secretary, are you able to answer, provide any more information about where the funding for the investment bank is being provided for in Scotland then to have any information? I'm afraid not, because that's a matter for the UK Government. Right. John. Yeah. Cabinet Secretary, this is the Parliament's Justice Committee. You're here as Cabinet Secretary for Justice and people would anticipate maybe that you would have a clearer understanding of the relationship between those international laws and what you are effectively asking this committee to lend or support to, and that is turning a blind eye to crime that may take place. You've used a term diplomatic frequently. Strong, John. I mean, you know. The possibility of things, but not turning a blind eye. Well, should it take place to disregard it then? Okay, that's better. Let's just, yeah, okay. Okay, off you go. Within the confines of this. It's dramatic stuff. Let's use it like that. Let's go for it. Cabinet Secretary, you've used the term diplomatic. Which countries are involved with this? All in. Every country in Asia? Within the European Investment Bank. Sorry, for the Asian Investment Infrastructure Bank. I'm not entirely sure of all. Well, actually we have. There's a number of regional members which are part of it that go from Australia through to Cambodia, China, Indonesia, Israel, Jordan. There's a list of them here in New Zealand, Pakistan. They're all within it. There is the Singapore, Sri Lanka, Thailand, Vietnam. There's also non-regional members which are from Austria, Brazil, Denmark, Egypt, Finland, France, Germany, Iceland, Italy, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, South Africa, Spain, Sweden and Switzerland, and then the UK. Has any impact, I know that no Bria has been done in respect of this, but has there been any impact assessment on the likelihood of this immunity being called upon? Impact assessment by the UK Government? No, I'm aware of it. No, no, no. By the Cabinet Secretary for Justice? No, there has been no impact assessment on it being undertaken. None at all, no, okay. You could have come here and called for us to oppose this message. A minute, John. I see the committee is not too satisfied with things at the moment. I'm just wondering if there's a process way where we can get further information. And I appreciate that we've got to report by Parliament by 2 November. And I wonder if there's a way where we can raise all these further issues with you in some detail. And then the committee can consider what its views are on it. I mean, will there be ramifications for this journal across the way that we maybe are unaware of? I'm not aware of them, but, you know, if there's international peace and governance, what's happening? Is there a way that we could possibly deal with it? I see... And we must be report by 2 November. Well, first of all, yes, there is a way in which we can provide you with more information, part of which is if you want to put those points to us, we can also pursue some of those details with the UK Government, who have entered into the international agreement as well, and to provide you with more substance around some of those issues, given that they have got the lead responsibility in this area. In terms of the actual timeframe, whether that alters things that we would have to check and respond to in that matter as well, given that there's already parallel orders being taken forward in the UK Parliament at present time. Well, with the leave of the committee, I suggest that we, with the leave of the committee, we leave this just now. We'll come back to it later today, which is continuation, which is a... You're looking at me. Farton. Margaret? It's okay, I think that's a way forward. Yeah, we'll come back to this later today when your office can provide us with information on whether or not we could either consider... The preferable thing would be to consider this next week with further information so we can... All those issues that are being raised can be considered by the committee and all their application, the whole thing, much more detail. And if not, we will have to take a view on whether or not we then move it and have you back to move it later on the agenda. We're going to private session later on, but at some point we'll come back and move it if the committee decides that, or indeed if we could take this further in the later stage of the week, which is not really satisfactory to others. So my preference, frankly, would be if we could deal with this next week if we're not under some kind of, you know, sord of damoclies to get this done by Tuesday and report, because we can't... My views, we can't report in the morning and ask Parliament the same day so we couldn't do all on the Tuesday next week. It would have to be... There is a timeframe for it to go to the Privy Council, which I believe is at the beginning of December. Well, therefore, it looks... If the committee is agreed, then I would suggest that having... This is the evidence session in part concluded, in part, that if possible we return to this Cabinet Secretary next week when we can hear further evidence, either in written form or oral if you're able to come back and when you'd have to come back to move or not move the instrument. How does the committee feel about that? Was there a lot of things that have been raised that we need to rather than take a hasty view? John. Could the Cabinet Secretary provide clarification about his comment that there might be another route by which... That's exactly fine. That's the kind of thing. If it's a constitutional matter... No, that's the kind of thing I'm happy to explore because it was a lot opened up and we're having to really get the time or the detail to come to a conclusion. Is that content? Of course. Right. Thank you very much, Cabinet Secretary. So that ends the evidence session and I'll get a note back about next week ASAP from your office, hopefully. Thank you very much. I then move on to item 5. Items... Wait a minute. I'm lost. Item 5. No, that's gone. Of course, we're not moving that. We're going on to item 6 because we're not doing the debate. Everybody knows where they are except me. No, that's nothing new. Item 6. Three negative instruments. The first is the discontinuance of legalised police cells Scotland rules 2015. It formally discontinues the legalised police cells in Danone, Oban, Lachmadde, Campbelltown and Thursdale, which in effect means they can no longer be used as legal prisoners for the detention of prisoners before, during and after trial. The DPLR committee did not report on any concerns. The sentiment could have comments on the sentiment from members if you have any comments. Can I just ask what the prisoners do go if they're not using these facilities and if they're closed? Do you know what provision is made? Should they need to use well? I can write for further explanation but I can't answer it. Obviously, I'm not the Government so I can write. That's a question on the record which we'll continue. I just welcome this regulation at the Inspector of Prisons. I recommended this some time ago so it's good to see it. Welcome it but we're going to find out what happens in practical terms. Thank you. I'm here to say that the bodies are not used. Oh, but they're not used when they're never used. Have any of them need to be transferred? Can you be a chair, please? Instead of a general little quote on the debate? I'll be... Well, I mean the evidence that we've got is that it's not used and the idea that you're going to keep something and maybe it will be used. We would keep every motor on the road forever, wouldn't we? That's the case. We're back to cars, Gail. I wonder what your connection is. We're also back to cars. I mean, it's just... If it's not been used... We can't just no harm in finding out where they go anyway, okay? So take it. You're content to make no recommendation relation to this instrument. Sorry. Who is going to go where if they are not used? That's exactly it. I feel somebody's put something in the water today. Now, let's just rewind. To keep Margaret's suite, I'm going to find out where they go pro tem, okay? That's all. Now, can we just move on and say, do you have any recommendation in no recommendation relation to this instrument? Are you with me? Thank you, Alison. I hope that I'm looking at you. The second negative incident around consideration is the police pension scheme Scotland amendment regulations 2015. Sorry, could I, at this point and I should have earlier, I was unable to open this particular link I think it's unlikely it will relate to me, but I should declare an interest and possibly as a recipient of a police pension. Yes, let's hope they put their funds in the right place then. Very much. Anyway, having stated that, the purpose of this instrument is to amend the police pension scheme Scotland regulations when it seems to correct errors and omissions in that instrument. Again, the DPLR committee has no concerns in the instrument. Do members have any comments on relation to this instrument? Do you have any comments? No. Sorry, you're content to make no recommendation on relation to this instrument. Thank you. The third and final negative incident consideration is the legal and miscellaneous amendment Scotland regulations 2015. This adapts the framework arrangements and existing regulations to accommodate changes to criminal proceedings in the sheriff appeal court, all Scotland's sheriff courts and for specified civil proceedings and judicial review. Members will recall that last month the committee rejected my majority in affirmative instrument making provision in broadly the same area as this negative instrument. The Government responded by withdrawing that affirmative instrument and laying it in its place. The instrument does not require a solicitor to seek prior approval from the Scottish legal aid board before instructing council for cases in the new court. It also makes provision for solicitor advocates to be paid council rates for criminal legal aid working in the sheriff court. The DPLR committee made no comment on relation to drafting the instrument, but it has drawn our attention to failure to comply with the 28-day rule and the explanation with the Scottish Government for this breach, an explanation in which the committee says that it has accepted. Do members have any comments on relation to the instrument? Alison Foll of Eileen Thank you. Thank you. Well, it's welcome that the Government has responded in this way to the decision that we took in committee. But it is only an interim arrangement. The Law Society points out quite rightly, I think, that we need to keep our eye on this and we need to move this forward. The point to an interim scheme relating to the police station duty scheme in 2011, which is still an interim scheme and hasn't been resolved. So, if there is a way for this committee to monitor the situation and encourage the Government to resolve the situation amicably by within six months, that would be very helpful. To welcome the fact that the Government listened to the majority view of the committee, I think that that's welcome. I'm presuming that whatever the final scheme is, it will have to come back by instrument to us for discussion at the time when it's drawn up. Yes, so it changes if there's a final scheme. Because I thought Alistair MacDonald was saying that this is an interim scheme, so I'm a bit welcome in it at the time. Roderick, do you always think anxious but I mean I didn't notice you? No, no, no, no. No, I presume that presumably the committee in monitoring its own work could seek a progress support from the Government in January or February to see how we're doing. And indeed, according to the letter from the legal aid whom I'm looking at from Law Society is that in fact they're going to report to us on the discussions early in the new year, so we've got the two tranches. We've got the Law Society and we'll also be able to monitor it from the Government. Okay? Thank you very much. Right, we now move into private session and we've agreed so I'll suspend for a couple of minutes to allow the gallery to clear, please.