 I welcome members to the 30th meeting in 2015 of the Delegated Powers and Order of Form Committee. As always, I ask members to switch off my mobile phones, please. Agender item 1 is a decision on taking business in private. It's proposed that we take items 10 and 11 in private. Item 10 will allow the committee to further consider a draft report to the Health and Sport Committee on the Alcohol Licensing, Public Health and Criminal Justice, Scotland Bill and item 11 will enable the committee to reflect on the evidence. It's heard on the remedial order subject to affirmative procedure. Does the committee agree to take items 10 and 11 in private, please? Yes. Thank you. Agender item 2, then, is the remedial order subject to affirmative procedure and oral evidence on the Police Act 1997 under protection of vulnerable groups, Scotland Act 2007, remedial order 2015, SSI 2015 330. This is currently out for consultation by the Scottish Government under consideration by the committee. We welcome Laura Dunlop, who is representing the Faculty of Advocates. I am in a position to ask members to produce questions for Laura Dunlop, please. Can I take you straight way to article 8 in general terms? What do you see is the principal article 8 ETHR issues arising in connection with the remedial order with particular reference to the UK Supreme Court judgment in T and another versus the Secretary of State for the Home Department and another? I would see the main issue as being whether the problem identified by the Supreme Court has been remedied. My answer to that question would be yes in that there will no longer be blanket disclosure of people's convictions taking place solely because of the context of the request for information. However, there is a supplementary issue, which is whether the scheme as amended is still capable of operating so as to represent an unjustified interference with a person's article 8 rights to respect for his private life. I am saying his or her private life. I suspect that one cannot rule out the possibility of a case in which a court might consider that there had been an interference that could not be justified. It is very difficult in a prospective exercise of this nature to use words such as always or never. Would you like to expand on where that possibility of still interfering with his or her rights might occur? There is a measure of consensus about the article 8 analysis in that particular factual situation. Firstly, it seems to be accepted that the particular aspect of article 8 that we are talking about is respect for private life. It is often said that what article 8 is about is seeking to prevent arbitrary interference with the interests protected by article 8. If you have an interference, which I think is on the basis of the hypothesis that we are considering, one would have an interference and one would be talking about whether it could be justified in terms of article 8, then the issue becomes is that interference in accordance with the law and the necessary in a democratic society. The matter of proportionality always arises and one matrix, if I can call it that, for analysing proportionality involves looking at four things. Firstly, the goal that is sought to be achieved and secondly whether the measure that is being taken is rationally connected to that goal. Again, there is a measure of consensus, firstly in relation to the goal that everybody understands to be protection of people who are vulnerable and also consensus about the connection to that goal. The connection is self-evident. The third and fourth aspects of the quartet of tools of analysis are perhaps slightly more difficult. The third one is whether the goal could be achieved by another less draconian route and then the fourth one is whether a fair balance has been struck between the competing interests. The competing interests obviously being the need for disclosure in order to protect vulnerable groups but, on the other hand, the goal of enabling people who have a criminal conviction not to have an albatross around their neck forever. Quite. So when is an interference not an interference with the human? When can it be justified? It's very difficult to avoid a sense of it being an impressionistic test. If you look at the two decisions that Clark drew to my attention and which I've looked at, the Northern Irish decision and the English decision about whether particular interferences can be justified now in the English High Court case, the problem was the continued disclosure of an offence of actual bodily harm, causing actual bodily harm. The scheme passed the test in that case in that the High Court wasn't persuaded that it was an unjustified interference to disclose a conviction for causing actual bodily harm. On the other hand, in the Northern Irish case, the offence is concerned with having young people travelling without a properly fastened seatbelt and the measure didn't withstand a challenge in that instance. I think that I would use that to support my suggestion that there is a degree of impression here and that a judge considering an individual's circumstances and an individual who has this conviction disclosed will probably have a bit of a first reaction to whether that feels fair or not. I'm sorry if that isn't a very satisfactory answer, but I think that, to some extent, that does always come into it. But, properly so, judges should always have an element of discretion. By the time that you're at the fourth point, which is that a fair balance has been struck, it's very difficult to articulate criteria that one could use to test whether a fair balance has been struck. It must, to some extent, be what sense the judge has of whether it feels fair or not. Can I just ask you if you've quoted the two UK recent cases? Given that we're talking about a European convention, is there any wisdom to be gleaned from cases around Europe? I appreciate that there are different jurisdictions and have different words, so I'm just wondering, is there anything for us to learn about how it works elsewhere? I'm sure there is. I can't say that I've done an exhaustive study of comparative material, but it is always interesting and attractive to come across something from another jurisdiction, which is very similar on its facts. If you are looking at a problem of revelation of an old or an elderly conviction and that thwarting someone's attempts to secure employment or even a position in the voluntary sector, an analogous case has cropped up in the Netherlands or something like that. I think that one would want to look and see, particularly if cases from other jurisdictions have gone to Strasbourg, one would want to look and see what sort of attitude has been taken in that situation. I just wanted to go back to where you kind of started from and ask you just the straightforward question. Is the faculty of advocates view that what is before us creates an environment where the prospect of a successful challenge under article A is sufficiently remote that this is as good as we reasonably can do at the moment? At the end of the day, to ask you to say that it is impossible to challenge clearly is not something to which you could say yes. I am applying the sufficiently remote test and asking if that is something that the faculty of advocates would feel expresses it. Would you forgive me if I interfere from the chair just to start off with that I am conscious that Ms Dunlop is not here as representing the faculty of advocates? I probably would not want to do so, so whilst you may want to answer the question, I think that it needs to be clear on the record that we are not asking her to speak for the faculty of advocates at that point. Forgive me, you are described as a faculty of advocates on the agenda and I asked it in those terms, but whatever capacity you wish to answer. I am comfortable with the question and I think that I can handle it. I should say, and I think that this is probably obvious even from what I have said so far, that I can figure hard cases. I do not think that that is any surprise, it will not be any surprise to members, but it is not terribly difficult to dream up hard cases. Without giving anything away, I have recently been approached on an informal basis by someone who is in fact a hard case, so one does not have to be terribly creative to think of examples of people who are very close to where lines are drawn. Lines are drawn on the basis of time in relation to the rules list, if I can call it that. Lines are drawn in the compartmentalisation, so what offences have been put on each list and what offences are not on the lists at all. That is all line drawing, and the closer you get to those boundaries, the harder sometimes cases become. The position of a faculty of advocates is that until the invitation to come today, we actually had not been minded to put in a written response, but we will now. That has been a by-product of the invitation and really quite a lot of thinking about the measure that has taken place in recent days, and I certainly feel that it is something on which we should be putting in a written response. I have already approached somebody else to help with it, and I have someone else in mind who I think will be very well placed to feed into this, so I cannot say that it will be a definitive answer to some of those questions. It will not be, but we can offer more comment, we can offer a written comment. I am trying to keep John on track. Is the test that I have put of successful Chevalange is sufficiently remote a decent test for us to be applied? Well, I think that it is a comprehensible test and that it is a reasonable test, but you could be wrong. Anyone expressing a view on that may be wrong, so one does one's best. One of the things that struck me when I was reading the order and I read the evidence from last week was that a great deal of thought has gone into this, and it is sometimes quite sensible to make one change and see what happens. This may not be the end of the story, there may require to be further adjustment in the light of experience, there may be further challenges in England that will result in a development of the jurisprudence, so it may be that this reform happens and further tweaking or adjustment is required, but what I can say is that, and I am slightly repeating myself now, it is obvious that a lot of thought has gone into this, thought informed by experience of the sorts of issues that come up, and the sense of arbitrariness and possibly random effects that one got from considering the previous scheme has been greatly alleviated, so I think that there is no doubt that a substantial reduction in the likelihood of challenge is being effected. To be welcomed, you would regard what we are seeking to achieve as honest endeavour in that and progress, so thank you for that. Of course, we would also welcome any further information that the Faculty of Advocates have to give us, and I just wonder if, if there is anything further, you would in general wish to add to the tests against which a court will assess the compatibility of an interference with the articulate rights. Well, I suppose that one of the issues which struck me when I was preparing to come today, and I don't really have any concluded views on that, but I think that it is an issue, is that the 10-year period for rehabilitation, which is the maximum period of rehabilitation under the Scottish provisions of the 1974 act, as I understand last week's evidence, that was the starting point for the selection of 15 years, so one of the answers given in your session last week was that the 15-year period for the rules list or the B list was informed by the fact that under the act 10 years is the maximum period before which a particular conviction will become spent, unless it is one that never becomes spent. Now, the Scottish provisions of the 74 act, the Rehabilitation of Offenders Act, have not been amended, but the English ones have, so their periods have shrunk, and I suppose I can imagine arguments if you particularly think of the third of the four parts of the proportionality analysis, that it is possible to achieve an acceptable result by a different method. It is conceivable that that argument could be strengthened by a comparison with a similar individual in England, because the maximum period that has been chosen for England is 11 years, not 15 years, so there is that difference between the regime as it will operate in Scotland and the regime as it will operate in England, and that might be territory in which one could begin to fashion a proportionality argument. I suppose one of the questions I have, and I do not know the thinking behind why there is now that differential between the periods in section 5 of the Rehabilitation of Offenders Act, so that the periods have all been stepped down in the English part of the act and they have not been stepped down for Scotland. You are putting that very subtly by asking a question, why is there a difference? Would it be your recommendation that there should not be a difference? I do not think that I can go that far, because I have not heard the other side. There may have been a decision taken not to change the periods in Scotland for some reason, but it did strike me as potentially anomalous. That is an obvious question to pursue with others. I think that that is as far as I am. I am sure that this is going to be a flowing discussion. As we understood it from the UK Supreme Court, there were four issues that should be considered the nature of the offence of the disposal in the case, the time that has elapsed since the offence, and the relevance of the disclosure information to the employment sought. It is that fourth one, the relevance of the disclosure, which has certainly been concerning me, I think, has concerned the whole committee. I would just like to have your views. The answer that we seem to have got from the Government is that it is making it a bit more specific by putting a group together, so that effectively a class of positions is saying that certain spent convictions would always be relevant for a whole class, i.e. all the people who need the higher level disclosure. I had thought that relevance might be more for the specific post, and they would therefore need to look at every single case. I do understand that that would be a challenge for Disclosure Scotland if they were to look at every single case. Can you give us a view on that? I think that I understood the rationale for doing it the way that it has been done. There is, if you like, a first consideration of relevance or a first generalised screening for relevance, which is that the first list, the A list of offences that will always be disclosed, have been included because of their particular characteristics. The list of offences that may become non-disclosed again are themes underlying the composition of that list. I saw one of the answers last week referring to the characteristics that the offences possess about causing harm to individuals or indicating breach of trust or recklessness or something like that. There is an attempt to abstract offences possessing those particular characteristics, which, in a general sense, one can see as being relevant to posts involving how you treat other people and how one behaves in a position of trust. The specific relevance for an individual in a post I cannot think of a way in which that could be addressed other than through a measure such as has been included, which is providing an individual right of challenge to the sheriff who can then scrutinise the particular position that the person is looking to enter and the nature of the offence so that the individual's specific relevance decision can be taken in that context. I think that once I had seen that there are about a thousand disclosures a day, I could not really practically imagine any way in which one could build that particular individual scrutiny into the system at that point. Yes, I think that we will explore that some more, the whole thing with the sheriff and so on. I understand and you are confirming that there would be practical issues for disclosure Scotland. It struck me as a bit, I do not know if clumsy is the right word, that what I see in other employment law is that something happens, a grievance or a discipline, they then have to go through internal systems before they get as far as the employment tribunal or the courts. Whereas here it just seems to be very much initial step and then straight into the courts, but you do not really see that as a problem? I think that if there were an alternative suggestion I would be interested to hear it. I suppose that the only, this is just blue sky thinking, but the only sort of analogy would be some kind of internal review, but I am not sufficiently all fair with the workings of the body to know whether that is a realistic suggestion or not, whether one could try to build in a provision at that point without necessarily having to go the length of taking the matter to a sheriff. I think that that is exactly the same, that that is right, I do not know the details of it enough and we have been assured that there are practical issues. Going back to the wider picture, somebody might have been going for a post in financial services but the conviction or whatever is for quite a different area and then it would seem that there would be a potential challenge on relevance. Yes, I suppose that the big divide that people make in criminal law is between offences against the person and crimes of dishonesty and I suppose superficially one can see that there is perhaps a mismatch if the job is in an area where it is perhaps about financial property and the conviction is something to do with an offence against the person but I am not sure how far that sort of apparent mismatch really goes and it may be that that is exactly the sort of territory that is right for scrutiny by a sheriff. If that is truly as much of a mismatch as it first appears then that will be apparent to the sheriff when he or she comes to scrutinise the particular circumstances. I think that you have covered quite a lot of the ground on my first question in response to Stuart Stevenson but I was going to ask about the adoption of the system of general rules which may lead to harsh results in cases at the margins or hard cases you spoke about earlier and firstly in terms of the compatibility adoption of such a system with article 8 I suppose you don't want to give us a definitive answer but any further views on that would be welcome but also more broadly whether adopting such a system of general rules strikes a fair balance between the public interest and effective private interests for example in those hard cases which on the cusp of the various rules. I did read with interest the sorts of situations in which these kind of bright line rules have withstood challenge and the circumstances in which they haven't and I think again it would be very difficult to articulate general criteria for when a bright line rule is acceptable and when it's not. The examples given by the Supreme Court are not necessarily clearly it's not necessarily clear why a particular rule belongs in one category and not in the other. I suppose one can say confidently that sometimes bright line rules are accepted and you know that there is still here a degree of bright line rule although it's a much lesser degree than under the previous regime so I suppose the extent to which there is a bright line rule is in relation to those offences which will always be disclosed and I can't I suppose predict any more than that there may be a challenge by an individual who has a conviction for an offence which will always be disclosed and my crystal ball would suggest that the likely factual circumstances would be that this is something done as a young person you know mistakes are made in adolescence Lord Wilson in the supreme court refers to childish error so somebody does something in their teens and in their 30s or 40s they are looking perhaps even just for a position in the voluntary sector they're looking to take up sports coaching or something like that and this offence will still be there what would happen what about the the bright line rule in that case I'm not sure that it may be and this is why I referred to the need possibly to adjust the system in future that if a scenario of that nature were to go through the courts it may be that some kind of review provision would have to be introduced in relation to the always disclosed offences as well but I can certainly understand why that's not being done at the moment and I know you said the faculty was forming more views on on this issue at the moment and so I'm sure the committee will welcome the further views from the faculty when they coalesce. The Scottish Government noted in its evidence the possibility that an employer might choose to disregard conviction information which had been disclosed on the grounds that it was not an employer's view relevant to the post applied for do you think that that might be a fact which would be relevant to the compatibility of the state disclosure regime? I suspect the answer to that is no that there in many situations where someone commits an act which is unlawful there is the opportunity for somebody else further down the line to rescue that situation but the fact that that possibility exists doesn't actually alter the character of the initial breach. John Mason, that is going to take us back to the next bit. It's kind of building on what I was saying before and I think it's building on what Richard Baker said because he said one of your answers to him that if a situation arose you might need to have a review in the future we might the government might need to review in the future and I think that was the kind of area that I was interested in because if in the scenario you suggested that somebody when they were younger had done something and then when they went for a sports coaching role something was disclosed which they then challenged even if they won that challenge as it wasn't relevant for that post somebody the next day with exactly the same situation would again have the disclosure because the rules would not change based on what the sheriff was deciding and theoretically you could have a string of things. I suppose my feeling would be be better to try and pre-empt that by having a bit more flexibility within disclosure Scotland but is it satisfactory that we set the rules in place and then we just have to review the rules if that situation arises? I think it's a pragmatic response but I suppose in answer to the scenario you're putting to me I have to come back at you and suggest that the two circumstances are most unlikely to be exactly the same because for a start you're talking about two individuals so the circumstances of the second individual will not mirror exactly the circumstances of the first individual. I think that in a scenario of that nature where an application in front of a sheriff has succeeded on similar grounds so one has to assume that the conviction is similar and the circumstances of the two individuals are similar and the position that they're going for the two positions are similar so if an application in a similar set of circumstances has succeeded in front of the sheriff one might expect that the second application would also succeed I mean there would have been no actual precedent because it's not a pure question of law but I think it would be likely that there could be an appeal to the previous decision or it could be referred to if there had been some degree of publicity I suppose that's opening another difficult can of worms because quite how well publicised these decisions are going to be and quite how people will obtain information about how sheriffs have approached this power is not immediately obvious. Yeah I mean that's helpful I mean I think you know we are obviously looking for things that could be improved but I think you're quite right that I mean a lot of it does need to be pragmatic and we're going to have to see how it goes. I think that's okay for that thanks. Okay I think we're going to move to Stuart around this issue thank you. I want to just ask about some aspects of the sheriff process where an individual wants the challenge before the sheriff court now we heard last week that the sheriff can take the hearing in private to prevent the disclosure of the matter which may ultimately not be disclosed and that's as far as it goes perfectly satisfactory I guess but in making a determination it may be necessary for evidence to be led from the employer and therefore the employer is made aware of matters which ultimately it may be concluded will not be part of the disclosure certificate but have nonetheless been made aware to the employer and it appears that the current legislation although saying the employer should not act upon that knowledge not provided via disclosure there appears to be no sanction or way of enforcing that and I just wondered whether you had a view on that and you might care to break your response down into two parts because the employer might become aware of the nature of what is not being disclosed or at a lesser level merely be aware of the fact that something is not being disclosed that might have been disclosed. That is undoubtedly a difficulty none of us can unknow something we know so if in the course of proceedings before the sheriff an employer has been involved and has discovered something then it's going to be there in the employer's mind and if the person is then unsuccessful it's very difficult to prove conclusively that the reason for the lack of success was the fact that the employer didn't truly disregard this piece of information that he or she had come across. I did wonder when I was preparing for today whether a person in that situation an applicant in that situation would actually take the view that the risk was too great and just wouldn't involve the employer at all but that then I suppose creates a different problem for the applicant which is that it's very difficult to satisfy or it might be very difficult to satisfy the sheriff that the information about the conviction is not relevant without any input from the person who can best describe what the duties of the post will involve but at least in theory one can imagine the application to the sheriff and the hearing on that application taking place without involvement of the employer because I think the risk that you describe is a real one and both the scenarios that you put that the employer discovers something quite specific which he finds he can't close his mind to or the kind of smell-a-rat problem and I wonder too actually if there could be difficulties even with conducting the application without involving the employer because it will take a bit longer I'm not sure about that because having just been through disclosure myself it takes about six weeks it took about six weeks so one can imagine a circumstance in which because a person has elected to go to the sheriff the period is taking longer and the employer even smells a rat from that simple fact yes but six weeks is quite a long time and you know things get delayed in the post and so on and so on I suppose one could finesse it but the sheriff court will be required to progress this type of application with great expedition really what I'm hearing is that yes the problem described is a real problem in the real world is the existence of that problem which appears to have been a problem for a very substantial period of time long before the circumstances that are causing this particular piece of secondary legislation to be considered by this committee in my parliament is there anything new in relation to the order that's before parliament that touches on this and changes the difficulties that there are around this subject because if the answer is there is nothing in particular new that makes it additional difficulties then I suspect for the purposes of passing this order we can disregard this problem although perhaps it should be considered elsewhere on another occasion I haven't identified anything new and the other thing I would say about having the right to go to the sheriff is that notwithstanding the drawbacks which you've identified and with which I agree it's still better to have that right there than not to have it so just finally and you may not wish to answer do you think this is a subject government of parliament should return to it some future point I wouldn't go as far as that I think they should wait and see I think okay as you know it's something one will need to keep an eye on watch developments particularly in the other jurisdictions in the UK I think and in the light of any developments there and indeed if there are cases in Scotland it may be necessary to revisit some of the fine tuning that's in the the scheme in that regard we're longing analysis in terms of defining or agreeing that there is a problem and agreeing that there is nothing new here would you have any proposals that might improve on that which is in front of us or might the faculty of advocates in their reflections come up with a suggestion that would bet on this well to reiterate it is evident both from the order and from the evidence that was given last week that a lot of care a lot of time and thought and care has gone into this already from people who are experienced in dealing with the issues that probably reduces the likelihood that we at the faculty of advocates can think of something they haven't thought of however never say never as I've said before and we will take it away we will think about it the two people I have in mind to approach to to have input I have a lot of confidence in them and we will see if we can think of anything at all which we can offer as a suggestion for how the provisions could be improved many thanks I'm returning now to another question can you forgive me if you've already answered this but there's apparently no provision for either an internal review by disclosure at Scotland or an independent review of the disclosure of non-protected conviction information and applicants only option where they consider that spent conviction information is irrelevant is to apply to the sheriff do you have any views on whether the lack of an independent review other than through the court system has any bearing on proportionality well I suppose the difficulty is more likely to come with the offences which are always disclosed and we've touched on this already that that means that the childish error that lord does lord wilson describes it the adolescent misbehaviour that results in a conviction is still going to be there and be disclosed a long time afterwards so 20 30 years later when someone could be going for something not necessarily employment for a voluntary position and that blot is still there and there is no recourse as the scheme is currently constructed there is no way of going to an independent person or going to the sheriff and asking that because of the long period of time which has passed and the fact that the person may have done many good things in that interval that for this particular purpose could the conviction not be disclosed so there isn't anything there but the difficulty with creating a review mechanism I think for that part you know for the the offences that are always disclosed is that one is basically not actually creating a view you're changing the whole scheme if you do that you know if you create a review mechanism for people in that category then at a stroke you're saying we don't have a list of offences which will always be disclosed on the other hand it does have a bearing on proportionality I think it might yes and therefore does that leave it open again to challenge under articulate well as I've said earlier I think one can one can without being terribly creative one can figure a hard case and if a challenge occurs then the courts will decide it and whatever the view the courts take would inform any adjustment of the scheme that took place thereafter so it might be better to wait and see how that pans out than trying to maybe go too far too fast at the moment right thanks so much I'm wondering how I can get back to the underlying jurisprudence of this because we've talked all the way through about a rules-based set of criteria now you've not given I think any indication that you would ever expect a British court to object to a rules-based criterion we know it'll give hard cases but that's actually what we're steeped in is it fair to say that and is there any indication that that might change the existence of the rules-based criterion as a matter of principle I think that that seems a coherent and logical way to proceed the arguments are going to be about the individual provisions within that you know whether an offence truly does belong on the rules list or shouldn't be there at all and so I think one will might get arguments about the detail but about having a rules-based system as a matter of principle no I think that should be acceptable yes so I'm wondering whether you you might reflect on whether or not there should be in either of the lists greater notice taken of the sentence I appreciate that it's in there if it's a more or less a discharge than it may be discounted I think that's that's perfectly reasonable but is there scope for at least considering whether the sentence might be a criterion which would fit in with sensible set of rules I think I would prefer not to answer that on the hoof as it were I would prefer to reflect on it I can't rule out that there could be greater regard paid to sentence but I think that's something I would prefer to go away and reflect on and we can perhaps cover that when we come to submit something in writing well I think that would be helpful because if we're taking the view that this has essentially to be a rules-based set of criteria then those rules have to be looking at data and the data has to be populated with something so it has to be numbers effectively or ticks the sentence is clearly something that you can enumerate whereas most of the other things that we might want to talk about in the shed if might at some other point want to consider don't come in quite such a text box exercise so I'm just wondering I guess is there anything else that we could possibly get as an innumerable criterion which therefore Disclosure Scotland could use without having to use discretion I suppose I have to record a note of caution about even the potential that using the sentence as some kind of marker carries which is that so many different things come into why a sentence is chosen and further down the line you know after the passage of time it can be very difficult to get an accurate perspective on why a sentence was what it was so even that I think could be difficult but certainly we can think about it there isn't anything else obvious I think that one can select as a marker and then use as a basis for discrimination yeah thank you a couple of other thoughts if I might given that we are surely going to have very very few cases in front of sheriffs even if one were able to get the information on those decisions then is there any reasonable expectation that we're going to build up a body of law over any reasonable period of time or is this just going to be something that Parliament may revisit once a regeneration I guess what I'm trying to challenge was done up as your thought that maybe we'll tweak it as we go along because I'm sure we might if some particular case comes along but I'm not really expecting am I that there will be a body of law built up on any sensible time period that enable us to revise it or am I wrong there well I suppose if that is what the eventuates then one is not then sure whether the lack of cases is because the system is working well or whether there is something else that is stopping people from bringing challenges I suppose absent a body of case law yes it is probably unlikely that amongst the many competing demands on your time that Parliament would find itself revisiting this or the government would revisit this but it wouldn't take very many cases I suppose it depends what what sorts of circumstances arose what kind of challenges arose but even three or four cases which seemed to be illustrating a trend or a line might be enough to justify reexamining the provisions yes yes indeed I'm wondering whether I could just pick up one other thing and I'm hoping I understood you correctly and please correct me if I'm not you said earlier that you felt to have the sheriff route was better and I suspect you you meant by that if I understood you correctly better than not having it at all which I'm sure is right yes I'm sure that's absolutely fair could I ask you to reflect on whether or not the sheriff route might be an essential part of ECHR compatibility because if there is no mechanism whereby an individual can finish up in the courts might that contravene their right to I'm talking about ECHR in total their right to a fair hearing in the context the procedural requirements of article 8 I think are not as well developed as the procedural requirements of some of the other articles having said that yes I think instinctively I think that if there were no review mechanism at all that would probably be a concern yes and that would push us back to judicial review as the sort of full whack and nobody likes to go there no it seems almost like an ambition of defeat yeah thank you John you spoke a moment ago about establishing a body of case law which perhaps has a process already begun in England and Wales and elsewhere do you see that as helpful towards what we're trying to achieve here in Scotland? yes I do it's an area where looking at case law from the other jurisdictions in the UK would be a highly relevant exercise okay I'm just wondering then if you might in if you're going to make a submission like to consider where you feel those other jurisdictions have got to recent cases and what that might might might might help us to understand please that's clearly again not something to do on the hoof now but I think it would be helpful to have an update are there any other questions colleagues because I think we've been around the subject is there anything on reflection that you'd like to add by way of summary or conclusion please sure if you permit me I'll have a look back through my notes because I have quite a lot of notes about the subject no there isn't anything else that I would want to mention okay thank you very much in which case I'm of course that should it occur to you in the small hours of tonight or another night that there was something that you would have said then of course feel free to to let us know please I'm sure the convener was just about to say that anyway but you put it very well John thank you very much indeed and I'll just close this item of the agenda and just briefly suspend the meeting good thank you very much indeed right turn now to agenda item three instruments subject to negative procedure no points have been raised by our legal advisors on the general dental council indemnity arrangement dentists and dental care professional rules order of council 2015 si 2015 1758 is the committee content with this instrument please keep turn right fours instruments not subject to any parliamentary procedure and again no points have been raised by a legal advisor on the act of Soderent child support rules amendment miscellaneous 2015 si 2015 351 is the committee content with that instrument please keep turn to item five the burial and cremation Scotland bill the purpose of some of this item is for the committee to consider its approach to the delegated powers in the bill the bill contains a significant number of delegated powers it's suggested that the committee might wish to explore those powers in oral evidence does the committee agree to invite Scottish Government officials to provide such oral evidence on the 17th of November keep gender item six is the private housing tenants Scotland bill members are invited to consider the delegated powers provisions in the bill at stage one committee is invited to agree the questions that wishes to raise with the Scottish Government on the delegated powers and the bills and written correspondence the committee will consider the responses of future meeting prior to considering a draft report section 91 enables Scottish ministers to make regulations which impose a duty on landlords to provide tenants with information which is specified in the regulations the substantive provisions regarding this duty are left to secondary legislation unlike the statutory items in schedule 2 does the committee agree to ask the Scottish Government whether consideration has been given to including on the face of the bill proposed specified information under section 91 of the bill which a landlord will be under a duty to provide to a tenant and whether they would consider it appropriate to include such information on the face of the bill in a similar manner to the approach taken with statutory items in schedule 2 section 10 allows ministers to make regulations specifying how the duty to provide information which arises under sections 8 and 9 is to be performed in the same manner as section 9 how this duty will operate is to be set out mainly in secondary legislation rather than on the face of the bill does the committee agree to ask the Scottish Government whether consideration has been given to including the provision sorry the proposed provisions about how a duty arising under section 8 or section 9 of the bill is to be performed on the face of the bill rather than the regulations under section 10 gender item 7 is a transplantation authorization of removal of organs etc scotland bill this next item is consideration of the delegated powers provisions in this member's bill the committee is invited to agree the questions that wishes to raise with the member in charge the member on the delegated powers in the bill in written correspondence the committee will consider the responses that a future meeting prior to considering a draft report the bill proposes to insert a new section 2 a into the human tissue scotland act 2006 2006 act this would enable ministers to provide by regulations for the designation of persons or categories of persons as authorized investigating persons persons for the purposes of the 2006 act the delegated powers memorandum states that persons anticipated to be designated as authorized investigating persons will be in clinical and administrative roles in the NHS however the power is drawn to permit any certain persons or categories of persons to be designated as authorized investigating persons does the committee agree to ask the member one to explain what other persons or categories of persons might be designated as authorized investigating persons apart from NHS staff and two is the member in a position to explain what the NHS clinical or administrative roles or grades might be appropriate for designation the delegated powers memorandum justifies the negative procedure for scrutiny of the regulations on the basis they are likely to be largely technical expressed in terms of NHS grading and staff arrangements however the power is capable of being exercised to designate persons or categories of persons beyond persons in the NHS role the exercise of the power would also be highly significant to the proper operation of the opt-out system proposed by the bill does the committee agree to ask the member to explain further why the negative procedure is considered to be more suitable than the affirmative procedure for scrutiny of these regulations section 16 one of the bill would enable the making of regulations to make provision for adults from countries with opt-out systems of organ donation delegated powers memorandum explains that the object underlying this power is that at the judgment of the Scottish ministers there may in future be circumstances where a person dying in Scotland who met the requirements for an opt-out scheme of transportation under their home system should be included within the opt-outs provisions in the new section 6b of the 2006 act inserted by section 6 of the bill section 16 one of the bill would enable by regulations subject to affirmative procedure any further modification of the 2006 act to cater for those circumstances does the committee agree to ask the member to consider whether this power could be more suitably exercised by a super affirmative form of procedure which would enable the parliament to consider an initial draft of the regulations what in this context would the advantages and disadvantages of applying for such a procedure b for the parliament and others in comparison with an affirmative procedure brings us to agenda item 8 which is the community justice Scotland the bill this item of business is the committee to consider the Scottish government's response to its stage 1 report and do members have any comments please on that basis are we happy to note the government's response and if necessary reconsider the bill after stage 2 thank you which brings us to agenda item 9 which is the health tobacco nicotine etc and Care Scotland bill this item of business summaries for the committee to consider the Scottish government's response to each stage 1 report again do members have any comments please are we content to note the response and if necessary reconsider the bill again at after stage 2 we are thank you very much indeed right john desk john sorry there was the issue though of ancillary provision yeah in terms of section 33 and the fact that they've been made in a different way from other legislation and therefore i think this was something that we had wondered but it'd be at least raising with the Scottish government again further questions about why they are taking this approach and and the fact that it is out of line with the approach taken in another legislation and therefore this is not something that the committee might wish to raise once more perhaps not by member at stage 2 that's an opportunity for obviously but certainly at least to potentially right to ministers to highlight this is something we we do have further concerns over right can i say i think as your convener aim i think i'm feeling that we've raised this probably enough for the government to got the message i think we've put in at least three reports it also figures in our quarterly report and i think it's something which we therefore know will come up when the minister comes to minister for parliament comes to speak to us within the next few weeks i think i'd like to suggest to the committee that in this particular context we don't need to do it again and that it really is pretty high up the agenda as far as the government is concerned in many other situations and therefore they will aware of it just feel i should speak in support of richard not not the standing the fact that we have raised tons of relications and we haven't really as yet as far as i'm aware had a satisfactory response to these concerns no i think that's perfectly fair comment i don't think we've had a response charne i did some kind of response that they were we're actually willing to look at it and we're i don't know if there's a timescale for that but i think there was an indication that they were going to review that even though it wasn't maybe their top priority i mean i suppose it's a question of tactics you know do you ask for a new bicycle you know every single day or do you just kind of ask a few times and then leave it for a space can i just ask on the class where do we think we are okay i think the view from my left is that they are thinking about it and we know they're thinking about it and i'm wondering whether on that basis we could bear in mind we're just thinking about this particular response at the moment whether we could take that as that as what they're doing for the time being the obvious threat being we'll come back to it in the next stage one report which would perhaps be a slightly better route than than responding to this response but if the committee wants me to respond to this response then i'll do so i don't really want to push to the vote i mean sorry i think we just need it what's what's a collective view on this i mean given that we you know what we see we're highlighting again our concern about this and given that it's under consideration and given that presumably we can raise this with jophers patrick absolutely to give it because that's a committee i just think it's important that if we haven't had you know what some of us regard as that's actually a response video just drop the issue i wonder whether i might just should i informally just remind the minister we've had this discussion on the record that might be enough just to tell him that's okay thank you i think on that basis that probably does get us to the end of agenda item nine at which point um i'm moving them meeting into private for the last two items