Scottish Parliament e-Brief

Issue 24, 19^th June 2000

SECTION 1 - BUSINESS THIS WEEK

THE CHAMBER

Wednesday 21^st June

• Stage 3 of the Ethical Standards in Public Life Etc (Scotland) Bill
• Member’s Business: Edinburgh Folk Festival (Roseanna Cunningham)

Thursday 22^nd April

• SNP Debate:Fuel Duty
• SNP Debate: Education
• Executive Motion on Care Standards (UK Legislation)
• Member’s Business: Milestone House Hospice (David McLetchie)
• Question Time
• Stage 1 of the Bail and Judicial Appointments Etc. (Scotland) Bill

COMMITTEE BUSINESS

• Procedures. A heavy agenda includes a paper on the costs and volume of Parliamentary questions.
• European looks at the European Water Framework Directive.
• Rural affairs continues its marathon consideration of Stage 2 of the National Parks Bill, and also continues its inquiry into changing employment patterns in rural Scotland.

Further briefing on committee business will be published as soon as it is available.

SECTION 2 - NEWS

JOINT MINISTERIAL COMMITTEE ON HEALTH – GLASGOW

In Glasgow last Friday, the Prime Minister chaired a meeting of the Joint Ministerial Committee on health, bringing together health ministers from all parts of the United Kingdom. This follows from 2 earlier meetings in Cardiff on 7^th April and London on 5^th June.

At the meeting, Ministers discussed 2 papers presented by the Scottish Executive on partnership and prevention.

The other administrations agreed that Scottish experience of engaging local communities about service change was valuable in the wider context of NHS reform.

The Scottish Executive also presented a paper on their experience of preventative policies, focusing on the key areas of cancer and coronary heart disease. Scotland is not alone in suffering these problems - Northern Ireland, Wales and many parts of England have similar levels of preventable illness. Health Ministers in the different administrations have each been developing policies and initiatives to combat the human and financial costs that result.

The Scottish Executive is now developing four major national demonstration projects in the areas of: children's health; teenage sexual health; cancer, and heart disease. These will provide a test bed for action and act as models for the rest of Scotland to show how health can be improved by taking innovative approaches.

Tele-medicine

Following from an initial discussion in Cardiff on 7 April, Jane Hutt, Assembly Secretary for Health in the National Assembly for Wales tabled a paper on the major improvements which can be made to health care through modern technology.

Increased use of IT can help address some of the most profound problems facing health services today especially inequalities in access to health care. It can help maintain a high quality of patient care in rural and urban areas. It can reduce the inconvenience and costs of which patients and doctors face in travelling to appointments. And it can help nurses to work in the communities they serve, while still being given adequate supervision.

The meeting agreed that a further paper should be prepared on the benefits that the full range of modern technologies can bring to patients.

The National Assembly for Wales is investing in a pioneering eye care development programme which includes a tele-medicine project for screening diabetes patients in the South Wales valleys. This is being evaluated for roll out in the rest of Wales.

HENRY MCLEISH SAYS SMART MONEY IS ON SCOTLAND'S INNOVATORS

On Thursday, Minister for Enterprise and Lifelong Learning, Henry McLeish, announced funding of nearly half a million pounds to support nine of Scotland’s most innovative small firms.

The companies are winners in the first round of the SMART:SCOTLAND 2000 Competition which provides funding for the research and development stages of new products and processes.

From the award fund, winners receive a grant of 75% of the costs of carrying out a technical and commercial feasibility study lasting between six and eighteen months.

Further funds of nearly £1 million are available to take the results to pre-production prototype stage.

Announcing the winners, Mr McLeish said:

"The Scottish Executive is committed to creating a vibrant enterprise culture in Scotland whose strengths are based on knowledge and skills. Industrial innovation is key to the growth and development of this knowledge-based economy.

"The SMART:SCOTLAND Competition is particularly effective in supporting small, technology-based companies, one of Scotland's main sources of innovation. SMART provides funding for these companies at a crucial stage when private finance can be difficult to access.

"I am delighted to be able to make these Awards and I am very encouraged by the quality and diversity of the winning projects, some of which have global market potential.

"All our winners have leading edge projects that will give Scotland crucial ‘market-firsts’ in a wide range of industries including e-commerce, medical research and environmentally friendly power generation. It is vital that Scotland's most innovative projects receive the finances they need to succeed and SMART is doing just that by providing them with a fast track to the market place."

Entries for SMART:SCOTLAND can be submitted at ant time of the year by individuals planning to start a business in Scotland and by small existing firms/groups with less than 50 employees. Applicants should have either an annual turnover not exceeding ECU 7 million (approximately £4.35 million) or a balance sheet total not exceeding ECU 5 million (£3.11 million). The aim is to help small businesses improve their competitiveness by developing new, highly innovative and commercially viable products and processes to the benefit of the national economy.

SECTION 3 - NOTES ON THIS WEEK’S DEBATES

BAIL AND JUDICIAL APPOINTMENTS, ETC. (SCOTLAND) BILL

This Bill is part of the process of bringing Scots law into line with the European Convention of Human Rights and Fundamental Freedoms. It has two basic purposes:

• To change procedures for bail and for district courts to make them ECHR-compatible;
• To create a new office of part-time sheriff, because the former position of temporary sheriff has been declared by the High Court to be incompatible with the ECHR.

Discussion of this bill at committee so far has been non-controversial. One consequence, however, is that local councillors will be restricted in the functions they can perform as Justices of the Peace. This is explored below.

Part 1: Bail

Three parts of the Criminal Procedure (Scotland) Act 1995 cause concern:

• Requiring the accused person to apply for bail;
• Exclusions that prevent the sheriff from granting bail in certain circumstances;
• The right of an accused person to appeal against refusal of bail.

Article 5(3) of the Convention has been interpreted by the European Court, in cases against both Malta and the UK, to require bail to be considered automatically by the presiding law officer. English law has already been changed, but in Scotland the onus is still on the accused person to ask for bail. This Bill will change the position so that the sheriff has to consider bail in every case, but only on the accused’s first appearance.

At the moment, the sheriff cannot consider bail if a person

• is accused of murder or treason;
• is accused of attempted murder, culpable homicide, rape, or attempted rape and has been previously convicted of any of these, or of murder or culpable homicide.

The Bill will remove this automatic exclusion, but the sheriff will still have to exercise discretion. Common law principles established by case law in this regard include public safety, so it would be still exceptional to grant bail in cases of violence or sexual offence.

Finally, the Bill will enable people refused bail to appeal to the High Court.

Part 2 Chapter 1: Part-time Sheriffs

Temporary sheriffs were first appointed in 1971. Their job has been to cover for permanent sheriffs when unavailable, and their appointment has been renewable annually by Ministers.

Article 6.1 of the ECHR insists that a hearing must take place before an independent tribunal, and in response to a case the High Court ruled in November 1999 that temporary sheriffs might not be considered independent because of their dependence on ministerial appointment. No new cases have been allocated to temporary sheriffs since the judgement, although existing cases are proceeding to completion.

The new position of part-time sheriff will have the same entry requirements as permanent sheriffs, along with appropriate conditions and security of tenure. Parliament will retain the power, by order, to determine how many part-time sheriffs there are.

Part 2, Chapter 2: Judicial Appointments

The issue here is also one of the independence of the tribunal. Many local councillors serve as JPs, and there is no concern whatever about their performance or impartiality. However, because local authorities are the financial beneficiaries of some fines imposed in the district courts, independence could be held to be compromised.

In future, therefore, there will be two categories of full justices and signing justices. Politically nominated JPs will continue to sign warrants, election expenses and the like but will not carry out court duties.

Part 3: Prosecutions by Local Authorities

This is essentially the ‘etc’ of the Bill’s title. The same concerns regarding independence above lead the Executive to believe that local authorities should no longer prosecute cases where the legal assessor advising the justices is him or herself employed by the same local authority. This should not affect most of the occasional prosecutions under the Education (Scotland) Act 1980.

Further information

The policy memorandum for the Bill is available from: http://www.scottish.parliament.uk/parl_bus/bills/b17s1pm.pdf

Human Rights in Scotland: The European Convention on Human Rights, the Scotland Act and the Human Rights Act http://www.scotland.gov.uk/library/documents-w9/huri-00.htm

Lord Advocate Acts on District Courts Executive press release: http://www.scotland.gov.uk/news/press1999-13/se1379.asp

ETHICAL STANDARDS IN PUBLIC LIFE ETC. (SCOTLAND) BILL

As one of the first major pieces of legislation to be introduced to the Scottish Parliament, the Ethical Standards Bill aims to put in place a new conduct regime which will build and secure people’s trust in those who serve them on their local councils and other areas of public life.

The Aims of the Bill

• The Bill should enhance the reputation of local government and Non-Departmental Public Bodies and ensure that honest, hard-working councillors are not tainted by misplaced perceptions of corruption.
• There is genuine concern that the current ethical framework does not allow for open and transparent investigation of allegations of misconduct.
• The ethical standards bill will meet the needs of a modern devolved Scotland.

Key Proposals

Following an extensive and detailed consultation period, the key proposals are as follows:

• A fully independent Standards Commission for Scotland to oversee councils and other public bodies including QUANGOs. The Standards Commission will be responsible for enforcing the codes and dealing with allegations of misconduct and breaches of the councillors’ and members’ codes.
• The appointment of a Chief Investigating Officer within the Standards Commission to look into all allegations of impropriety, with impartiality and consistency.
• A national Code of Conduct for local authorities, setting out the principles governing the standards of councillors’ conduct.
• Tough codes of conduct introduced through a new statutory Code of Conduct, or ‘members model code’ for other public bodies which will be adapted to suit the circumstances of each body.
• Special provision for a code of conduct for the Water Commissioner.
• Provision for both local authorities and relevant public bodies to establish and maintain for public inspection a Register of Members’ Interests which includes pecuniary and non-pecuniary interests.
• The amended bill extends Part 2 Enforcement to include a Right of Appeal for a decision taken by the Standards Commission (section 19A – Appeals from Commission), with special provisions made for enforcement and suspension in the case of Crown appointments and special provision for the Water Industry Commissioner.
• The Bill will also repeal section 2a and replace it with a new statutory duty on local authorities in respect of their functions which relate principally to children. Each local authority will be required to have regard to the value of stable family life in a child's development; and to the need to ensure that the content of teaching is appropriate to each child's age, understanding and stage of development. This duty is provided by section 26 of the Ethical Standards in Public Life etc (Scotland) Bill.

Key Amendments from Stage 2

Right of Appeal

At stage 2, following discussions with the committee, the Executive introduced a Right of Appeal (section 19A). The Local Government committee feels that this was an enhancement to the Bill, which many bodies including COSLA were looking for. The bill includes special provision for dealing with Crown appointments and the Water Industry Commission.

Inclusion of Other Public Bodies

In their Stage 1 report, the committee expressed concern at the exclusion of bodies such as Local Enterprise Companies, further education colleges, Housing Associations and Area Tourist Boards. At Stage 2, the Local Government committee accepted an amendment to include a wide range of bodies within the scope of the proposed Standards Commission. A number of these are supported by the Executive, Area Tourist Boards and Further Education College Boards for example, but the Executive feel that many of the bodies included at Stage 2 are inappropriate. The Executive has brought forward amendments to clarify their position at Stage 3 – further details below.

Additional Information

While the committee wanted to include MSPs within the remit of the bill, they do recognise that there are practical difficulties in including MSPs within the legislation. Under the terms of the Parliament’s Standing Orders, the question of standards of behaviour for members is clearly a matter for the Scottish Parliament’s Standard’s Committee. The committee concluded in their Stage 1 report that ‘this matter then, appears to fall clearly within the remit of the Standards Committee, and it would therefore not be appropriate for the Local Government Committee to recommend formally in its report that this legislation be extended to include MSPs.’

Key Amendments for Stage 3

Repeal of Surcharge

At Stage 1, the committee expressed the view that consideration should be given to the repeal of surcharge for local authorities, and at Stage 2 the Deputy Minister Frank McAveety indicated that an appropriate amendment would be brought forward at Stage 3:

‘We wish to remove surcharge and are happy to lodge amendments to this bill at stage 3, rather than waiting for the omnibus local government bill, as we had anticipated. In order to take on board COSLA's views, we want to find a period between now and stage 3 to work with COSLA and the lawyers to develop a framework that is acceptable to members of the committee.’

An appropriate amendment is expected to be laid by Monday.

Inclusion of Other Public Bodies

At Stage 2, the committee agreed to Kenny Gibson’s amendment to include a complete list of all known devolved public bodies, as listed by the Scottish Parliament Information Centre, within the scope of the proposed Standards Commission. There was, however, concern expressed within the committee, largely by Labour members, that the list did not correctly distinguish between bodies which are appropriate and those that are not relevant to the powers of the bill, and that this would have to be clarified at Stage 3.

In the light of concerns about the inclusion of inappropriate bodies, the Executive have tabled a number of amendments for Stage 3 to remove bodies from the list agreed at Stage 2 either because:

• they stray into reserved areas,
• they are not formally public bodies or,
• they are advisory bodies which do not spend public money, such as the Health Appointments Advisory Committee

Executive amendment 26 asks for Area Tourist Boards to be replaced with:

‘The controlling body of an area tourist board established under section 172 of the Local Government etc. (Scotland) Act 1994 (c.39)’

Executive amendment 34 asks for Boards of Further Education Colleges to be replaced with:

‘The board of management within the meaning of subsection (1) of section 36 of the Further and Higher Education (Scotland) Act 1992 (c.37) of a college of further education within the meaning of that subsection.’

Executive amendment 45 asks for the removal of Local Enterprise Companies from Schedule 3 and Executive amendment 42 asks for the removal of Housing Associations from Schedule 3.

The regulation of Local Enterprise Companies strays into reserved areas as Company Law governs them. Housing Associations are not formal public bodies and they are already regulated under Charity Law or the Industrial and Providence Societies Act.

For further details on the scrutiny of the committee click on hyperlinks below:

Pre-legislative Scrutiny of Draft Ethical Standards in Public Life etc. (Scotland) Bill which can be read by clicking on: http://www.scottish.parliament.uk/official_report/cttee/local99-00/lgr00-02-c.htm

The Local Government Committee has produced their report on Stage 1 of the

Ethical Standards in Public Life etc. (Scotland) Bill which is available by clicking on:http://www.scottish.parliament.uk/official_report/cttee/local-00/lgr00-06-01.htm

To read the bill as amended at Stage 2 click on: http://www.scottish.parliament.uk/parl_bus/bills/b9s2.pdf

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