Scottish Parliament e-Brief

Issue 83, 10^th September 2001

SECTION 1 - BUSINESS THIS WEEK

THE CHAMBER

IN COMMITTEE

This week's likely highlights are:

• Finance starts the 2002/03 Budget Process and considers the structure of its PFI / PPP Inquiry.
• Public Petitions meets to consider a number of new petitions.
• Subordinate Legislation will choose a new Convenor from the SNP.
• Justice 1 elects a new Convenor from the SNP. It will also take evidence on the annual report of HM Chief Inspector of Prisons for Scotland.
• European will discuss the response of the Scottish Executive to the Committee’s report on the Common Fisheries Policy.
• Local Government will consider a draft Stage 1 Report on the Police and Fire Services Bill.
• Rural Development considers a number of items of subordinate legislation and will consider amending the Stage 1 debate on the Protection of Wild Mammals Bill.
• Enterprise and Lifelong Learning will consider a number of negative instruments relating to student loans and take a report back on their Lifelong Learning Inquiry case studies.

More detail will follow in tomorrow's Committee News.

SECTION 2 - NEWS

MEN URGED TO TAKE RESPONSIBILITY FOR THEIR HEALTH

Men should regularly examine their testes for lumps, was one of the messages in a drive launched on Friday to make them take their health more seriously.

Speaking at the start of Men's Health Week 2001, Deputy Health Minister Malcolm Chisholm said that early detection of testicular cancer can greatly increase the success of treatment. His call was backed by Everton footballer Alan Stubbs, who had a two year battle to fight the disease.

Mr Chisholm said that initiatives like these would help raise awareness amongst men about their own health, and break down barriers which prevent men from accessing health services.

He added:

"The Scottish Executive is committed to promoting better health for all Scots. Rightly the media has focussed on high profile issues round women’s health, such as breast cancer, but weeks like these are important in raising awareness of men’s health issues as well.

"Men are often unwilling to seek medical advice and tend to have infrequent contact with health professionals. There is also often embarrassment over men seeking assistance for mental or sexual problems.

"The Scottish Executive is supporting a wide range of measures that will improve men's health and access to services in Scotland. For example, Coatbridge Local Healthcare Co-operative runs a series of men-only evening clinics in venues like pubs. Grampian Health Board is supporting a Men's Health Fair which is looking at ways of improving men's health. Highland Health Board has also hosted a conference that will look at why men are reluctant to seek medical advice.

"But men also have to take more responsibility for their own health. For example, simple checks such as those for testicular lumps, can mean the difference between life and death."

Supporting the initiative, Alan Stubbs said:

"It is vital that men take more care of their health. Finding problems earlier means that they can be sorted out quickly and easily. That is why I am backing Men's Health week."

Full Story

COUPLES TO HAVE CHOICE OF CIVIL MARRIAGE VENUE

The Marriage (Scotland) Bill, announced last week as part of the Scottish Executive's programme for the coming Parliamentary session, will permit civil marriages to be solemnised at locations other than registration offices. The aim is to give couples who wish to have a civil marriage more choice in the venue for their wedding.

The Bill will give local councils the power to approve specific sites as venues for civil marriages, as long as they preserve the dignity of the marriage ceremony and the clear distinction between a civil and religious marriage.

The Bill follows extensive consultation carried out in 1998 by the Registrar General for Scotland, the lodging of a Member’s Bill proposal in March 2000 by Euan Robson MSP and the publication on June 21 2001 of the Scottish Executive’s proposals and draft legislation in the White Paper Civil Marriages Outwith Registration Offices.

The Scottish Executive hopes to introduce the Marriage (Scotland) Bill next month (with the Bill aiming to become law in February 2002.) The regulations to implement the Bill’s provisions will come into effect 3 or 4 months after that. The Bill would have no bearing either upon religious marriages or any other aspects of marriage law.

Justice Minister, Jim Wallace said:

"Couples opting for a religious marriage have long been free to select any location for their wedding, providing their chosen ‘celebrant’ has agreed. Ministers, priests, imams and other authorised ‘celebrants’ have therefore performed marriage ceremonies in castles and hotels as well as churches and other religious buildings.

"However, couples choosing a civil ceremony have been limited to picking one of the 247 offices in Scotland where there is a registrar authorised to perform civil marriages. The Bill would do away with this anomaly and give couples a wider choice of venue at which to celebrate their special day."

Full Story

SECTION 3 - NOTES ON THIS WEEK’S CHAMBER BUSINESS

WEDNESDAY begins with the third and final stage of the International Criminal Court Bill.

The International Criminal Court will provide a permanent place to deal with war crimes and genocide. It would provide a permanent forum for trials such as those which followed the Rwandan and Bosnian conflicts.

After long campaigning it was agreed to establish an ICC under the Rome Statute of 1998. As well as signing the Statute, a given number of states have to ratify it in order for the Court to be set up. The UK has pledged to ratify the statute setting up an International Criminal Court as early as possible.

Only seven states voted against the ICC, including China, Iraq, Israel and the USA. The USA subsequently signed, although the Bush administration is refusing to ratify. Israel’s concern is that the transfer of population into an occupied territory is a crime under the Statute.

It is important to note that the trial of an ICC suspect detained in a country will normally take place in the courts of that country. This is why the provisions of the Statute need to be incorporated into domestic law. Only where a state is unable or unwilling to try a suspect will the ICC itself step in.

The Relationship Between the UK Act and the Scottish Bill

The International Criminal Court Act 2001 was passed shortly before the dissolution of the Westminster Parliament earlier this year. The interaction between it and the Scottish bill is complex (an analogy is the parallel Regulation of Investigatory Powers Acts) but the position essentially is that:

• Certain matters are concerned with foreign affairs and therefore had to be in the UK Act;
• Certain matters are considered by the Executive to be devolved. But, in dealing on the international stage with persons accused of very grave crimes, the view was taken that it made sense to have a common UK framework and approach. These were therefore included in the UK Act, and Parliament debated a Sewel motion to this effect in January; (see e-Brief 49)
• Certain matters are devolved, and are dealt with in the present Scottish bill.

The Main Points of the UK Bill are that it:

• enables the UK to become a party to the International Criminal Court;
• ensures that domestic courts have jurisdiction on crimes within the ICC’s area of concern;
• provides for co-operation by law enforcement agencies on ICC work;
• gives effect to ICC-ordered fines and forfeitures of assets in the UK; and
• enables those convicted by ICC to serve their sentence in UK prisons.

What’s in the Scottish Bill

The Scottish bill gives effect in Scotland to the UK’s obligations under the statute, by allowing Scottish law enforcement authorities to co-operate (for example by arresting suspects and conducting searches), and by giving effect to fines etc ordered by the court.

• Part 1 incorporates ICC offences such as genocide, war crimes, and crimes against humanity into Scots law. This is not required as such by the Rome statute.
• Part 2 is necessary, and ensures that Scottish authorities can assist the ICC in investigation and prosecution. Examples are evidence taking and the locating of individuals.
• Part 3 enables Scotland to implement orders of the ICC, including the imposition of fines and forfeitures. The UK has also agreed, voluntarily, to hold prisoners convicted by the ICC and this part brings Scotland into this system.
• Part 4 deals with technical matters.

There are also six schedules which incorporate ICC terminology and procedures.

Stage 1 at Committee and Universal Jurisdiction

Witnesses and organisations giving stage 1 evidence to the Justice 2 Committee were universally supportive of the bill, but there was an issue around what is called universal jurisdiction.

The Bill as it stands applies to UK citizens and UK residents. This is in itself a change from the original position at UK level which applied only to citizens. A number of organisations, however, wish the bill to go further and bring within the scope of the bill any person indicted by the ICC who passes through Scotland – the Pinochet scenario, in effect.

The Executive accepts that this universal jurisdiction is superficially attractive, but as well as putting Scotland out of line with the rest of the UK, there are a number of other difficulties:

• The ICC and universal jurisdiction are to some extent alternatives. If the international community had wanted to go down this route it would be written into the Rome Statute.
• The Pinochet affair, it is argued, shows the need for an international rather that unilateral approach to these matters.
• International law may not allow for universal jurisdiction for all ICC crimes. (Although it does for genocide.)
• As the UK Act does not incorporate universal jurisdiction, there would be difficulties with extradition which is a reserved matter.

One other issue worth mentioning is the concern raised by some members that, if the ICC is dissatisfied with a Scottish trial, it can hold a complete retrial under its own auspices.

Stages 2 & 3

Stage 2 of the Bill at the end of June was uneventful. The Executive amendments were all technical, as were a large number from Christine Grahame (SNP) which were aimed at preserving the purity of Scots legal terminology and jurisprudence. Some of these were accepted, others not, and the Executive will return to some matters at Stage 3.

The only political discussion was around the issues of universal jurisdiction, (where Christine Grahame pressed an amendment but found no support) and the definition of residence (where, again, Ms Grahame tabled an amendment. It was not, however, pressed).

Aside from universal jurisdiction, the Stage 3 amendments this week will be on legal technicalities. The Executive will, for example, remove the possibility of cross-examination taking place when a witness statement ("precognition") is being taken outside the court before the trial.

Both the Conservatives and the SNP, however, are backing two sets of amendments from the Law Society which the Executive regards as unnecessary:

• The first is to insert a definition of mental incapacity into the bill. The Executive think this should be a matter for the court, as is normal practice in other cases;
• The second is to replace references to ‘the Scottish Ministers’ with ‘the Lord Advocate.’ While it will in practice be the Lord Advocate who undertakes the duties in question, the Executive believes that the collective reference to all the ministers is the correct term for legislation.

Click Here to Read the Bill

Click Here for the Policy Memorandum

Click Here for the Explanatory notes

Rounding off the day, Member's Business comes from the Conservative Mary Scanlon on Men's Health Week. (See above)

THURSAY is the first opposition day of the new session and the morning sees debates from the Conservative Party on Juvenile Justice and Improving Patient Care. Unfortunately, at the time of writing, neither motion has been published. It is unclear, therefore, which specific issues will be raised.

The text of the motions, however, should be published in the Business Bulletin in the next few days.

After Question Time and First Minister's Question Time, there will be an Executive debate on The Physical Chastisement of Children. The subject of much press coverage last week, this debate will concentrate on the Executive’s proposals to introduce legal protection for children from the use of "unreasonable and excessive" punishment. The proposals are influenced by responses to the consultation on physical punishment issued by the Executive last year.

The main points of the proposals are:

• a total ban on blows to the head, shaking and the use of implements;
• a ban on physical punishment of children up to and including the age of two;
• a ban on the use of corporal punishment in childcare centres, by childminders and in non-publicly funded pre-school centres;
• setting out in statute the factors courts must take into account when determining whether punishment was "reasonable"; and
• parents will set the ground rules for discipline in the home, which will include babysitters and childminders. The change in law will not affect this.

These proposals will require legislation which could be included in the Criminal Justice Bill. A white paper setting out the measures to be included in the Bill will be published in October with the aim of introducing it to Parliament early next year.

It is proposed that the factors which courts must take into account in determining whether punishment was "reasonable" be set out in statute . The factors will include the nature and context of punishment; its duration and frequency; its physical and mental effects on the child; the sex and age of the child; and the state of the his or her health.

The day concludes with a Member's Business debate on Community Issues in Sighthill, Glasgow from Labour's Paul Martin.

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