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Justice Committee

Meeting date: Tuesday, September 25, 2012


Contents


Decisions on Taking Business in Private

The Convener

We will ask them, because we have now taken a vote and it is unfortunate that they are not here. I would like them to express their view on whether the work programme should be discussed in public or private.

Do members agree to take in private item 6, which is consideration of a draft report on the legislative consent memorandum on the Defamation Bill?

Members indicated agreement.

Thank you very much.

The Convener

For 13 years, it has been standard practice for the committee to discuss in private our work programme as well as draft stage 1 reports, likely witnesses and approaches. Are you happy for us to consider in private item 6, which is a draft report, item 7, which is a draft stage 1 report, and item 4, which is our approach to an issue?

Item 4 is the approach, item 6 is a draft report and item 7 is a draft stage 1 report. Can we narrow our present discussion to the work programme?

I am just trying to move us on. We have a lot of work to do. If you do not want to debate them, we can tick off items 4, 6 and 7 and talk just about whether the work programme should be discussed in public.

Jenny Marra

I would be happier if we stuck to your original proposal to discuss them one by one.

Jenny Marra

Is that the one on prisons?

Right. My question is, why should we discuss an approach to a legislative consent memorandum in public?

We have done so for 13 years.

John Finnie

Every parliamentarian wants the electorate to see the work that they are doing. I presume that, if there is a long-standing convention in place, there is a reason for that. Without putting the clerk on the spot—although I am about to put the clerk on the spot—would it be possible to outline the rationale behind decisions to take individual items in private? I am supportive of the committee doing as much as possible in public, but that may fetter us when we are discussing individual witnesses.

Peter McGrath

Each case must be considered on its merits, and it is obviously a decision for the committee.

The convener is right to identify that the main reason for discussing the work programme in private is that, in discussing potential future work, the committee may discuss potential future witnesses, and it may be considered more appropriate to do that in private. In each case, it would depend on the circumstances of the item that is under consideration.

Graeme Pearson

That is my memory from last year, not that it happened often.

The Convener

I have said what I have to say. As I said, I have been a convener four times and I hope that I know something about convening by now. Good will is terribly important to the good running of a committee. Political posturing is a committee’s death knell. People having arguments in public over what might be, at the end of the day, quite a small matter in a stage 1 report is bad for a committee. Our duty is to try to work together, regardless of our political differences, to be coherent in our approach to legislation and to put the Government to the test. That is much easier to do in inquiries, although this committee has not had much opportunity yet to do that.

I have seen the process work well—if it ain’t broke, don’t fix it. I understand that it looks on paper like we are taking a lot in private. That happens to be the case today, but there will be weeks when there is nothing in private. It is swings and roundabouts.

We take items in private for the reasons that members have aired, particularly when discussing the work programme. We have good reasons for not doing certain things. If we decide not to take up something that somebody has raised with us, we write a letter to them explaining why we have been unable to take it up. It is not that they are not informed. It is done in a proper manner.

10:30

Graeme Pearson

Peter McGrath might be able to help us again. With regard to the likes of item 4, which is on the Prisons (Interference with Wireless Telegraphy) Bill, is it feasible that we could discuss our approach in public? If we decide that we want to take evidence, we can go into private session to discuss witnesses. At least we could have the logic of holding the debate on the public record, because it looks like a sinister thing—

That is not—

I agree with you, but I think that we would have to have a separate agenda item for the selection of witnesses.

Graeme Pearson

That is why I am asking.

Graeme Pearson

We might decide once we have discussed the issue that we are happy to let it flow through and that we do not need to do anything more about it, or we might want to talk about witnesses.

I would be very unhappy about the discussion of witnesses being held in public.

Graeme Pearson

That is what I am saying—we can go into private at that stage. At least we will have talked the business through in public.

Right, we have done that. I would like the committee now to consider whether we should continue to deal with draft reports, including draft stage 1 reports, in private for the reasons that I have given.

Graeme Pearson

If I remember what happened last year correctly, if a member of the committee feels strongly about a report, they can have a paragraph put in. That means that, if we fall out about something, we can record that there was a falling out, even though the discussion took place in private. If there is a feeling that, because of the way that the committee is operating, we are not ventilating matters properly, we can stand on principle and insist that a paragraph be inserted in the report, even though it might be a minority view.

Jenny Marra

That relates to the discussion of our reports, whereas Graeme Pearson’s suggestion relates to item 4, in which we will consider our approach to the Prisons (Interference with Wireless Telegraphy) Bill, rather than discuss a report. We can move into private for the selection of witnesses. That seems reasonable to me.

Absolutely.

We return to item 2.

Jenny Marra

I am sorry but I have got the item numbers mixed up. Do you have a revised agenda?

The Convener

Right. We have aired the issues. I will now go through—one at a time—the items that we must decide whether to take in private.

Do we agree to take item 4, which is discussion of our approach to a legislative consent memorandum, in private?

It is item 4. We can take it in public and not discuss witnesses. Do members agree to that?

Members indicated agreement.

Do we agree to take in public item 5, which is discussion of our work programme?

Members: No.

The Convener

There will be a division.

For

Marra, Jenny (North East Scotland) (Lab)

Pearson, Graeme (South Scotland) (Lab)

Against

Campbell, Roderick (North East Fife) (SNP)

Finnie, John (Highlands and Islands) (SNP)

Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)

Keir, Colin (Edinburgh Western) (SNP)

White, Sandra (Glasgow Kelvin) (SNP)

Graeme Pearson

We need to be careful about the issue that Jenny Marra raises, which is that the fact that we are not discussing something in public makes it look like we are being secretive. We must demonstrate that we deal with matters in private only when we absolutely have to, and that we still publicly record our views. It is a reasonable issue for discussion. I hope that we can come to a sensible outcome.

Sandra White

Convener, I agree with Graeme Pearson, Jenny Marra and you about witnesses—that issue must be dealt with in private.

I do not think that it is helpful when Jenny Marra talks about secrecy, because we are not being secretive; we are protecting everyone. I am not a lawyer, so when I read the papers, I do not understand the lawyerspeak, and I am concerned that I might be seen to be stepping over the mark if everything is held in public. If we are going to have such discussions in public, the clerks would need to keep us absolutely right, because of the legal situation.

The issue must be looked at seriously. However, the clerks would need to produce a paper to make me comfortable with certain things being held in public.

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

It is regrettable that other members are not here. Is it proper to ask the other members who were not able to come for their view, or can they not take a view on the matter now?

Do we agree to take in private our consideration of a stage 1 report, which is item 7?

Members indicated agreement.

Graeme Pearson

I suppose that you could turn the question around and ask why there is a natural presumption that we would always discuss such things in private.

The Convener

I am a very open member of Parliament, and I always have been. I take on the Government on all sorts of occasions; I will probably even do so this afternoon. For me, the issue is the freedom of members to discuss openly with other members whether we take on certain issues and how we approach matters. Members may sometimes say silly and inappropriate things—perhaps I should not have said that in public.

If we were to try and record such a discussion in the Official Report, it would be messy—people would be jumping in and the conversation would be very free. It is not like taking evidence or any of the other things that we do, in which we try to bring a coherence to our questioning, even though we have differences.

With regard to the efficient working of the committee, there is not a single sinister element in any of us doing any of those particular things in private. It just so happens that today there are four items in private, two of which are draft reports, which we have always taken in private to allow for free discussion and for amendments to be made.

We will go over the draft stage 1 report and perhaps take out the odd word, and members may fight over an adverb. It would look awfully daft to the world outside if we go to the wire over a conjunction or a semicolon. That free discussion allows members to relax and be honest, and sometimes not to look foolish.

I have been in Parliament for a long time and have been a member of various committees, and I have never objected to taking business in private with conveners of any other hue. When we go through the work programme, there is a reason why we might not take something on: perhaps we have too much on our plate, or we think that a reasonable case has not been made to take on that piece of work rather than something else. That can be quite hard for people who have taken the trouble to write to the committee to ask us to do something.

In fairness to committee members and to those people, we must have the freedom to sift through work. As Jenny Marra knows, we decide on our work programme collectively. This committee has come to decisions collectively and in good will, even though we often have different views. I am rather sad to see business that has been held in private over my 13 years in Parliament being raised as a contentious matter, because to me that is wholly unnecessary.

Conveners across the committees have operated in that way for as long as I can remember, and today just happens to be one day when there are several items in private. On other days, we will take nothing in private.

I have said my bit, so I will let others come in, but I think that the issue is a bit of a red herring.

Jenny Marra

As I explained at the start of the meeting, more than half of today’s business is being taken in private. I have raised before my unease at the work programme being considered in private. I do not feel that there is anything that I want the Justice Committee to consider going forward that needs to be discussed in private. I am happy to discuss our priorities in public. Sandra White picked me up on my reference to my party, and I clarify that I meant my party’s priorities for the committee and what it should be looking at—I do not have anything to discuss in private. The work programme should be open to scrutiny by the public, which is why I propose that item 5—as it now is—should be taken in public.

Jenny Marra

I thought that your proposal was to take them one by one.

That is fine—that is not a problem.

Graeme Pearson

Wait a minute—let me finish. As a headline, it looks like a sinister thing, but in actual fact it is fairly mundane and practical.

Roderick Campbell

I do not want to reiterate what members have already said but, on the work programme, there is something to be said for the fact that we can speak freely about competing priorities. If we all had to be very careful about what we were going to say because the discussion was going to be in public, that would be a disadvantage.

Jenny Marra

I will make a quick comment about the work programme item, which is the item about which I feel most strongly. I understand what colleagues are saying about having a free discussion, but I feel that, because we have been elected to the Parliament, we must have broad shoulders and be able to justify the committee’s priorities in public and to the public.

Politics is all a matter of competing priorities—we will always have that issue. However, the more that we push into private our discussions of those priorities, the less transparent we are to the public.

The Convener

I would also be very unhappy if draft stage 1 reports were debated in public. We come to a pretty well unanimous decision on such reports, and we manage to get a form of words that we can sign up to. That has sometimes not been easy, but folk have been prepared to give and take a bit. I do not know whether they would be prepared to do that if the discussion was held in public, and that worries me in respect of the operation of the committee, which has been very successful.

That is fine. Does the committee agree to take item 4 in public, and to discuss only our approach to the legislative consent memorandum, not witnesses?

Members indicated agreement.

Peter McGrath

They can express a view, but—

The Convener

This is my fourth time as a convener. I have never stopped someone expressing a view. I try to get consensus on the wording first so that everyone can sign up to it but, sometimes, that is not possible. In those cases, so be it. It is perfectly right that someone should be entitled to express a different view.

Colin Keir

I have a slightly different view. I find the private sessions handy because we can have a substantive debate, with ground rules that we all know, without having a party-political bun fight, because we have agreed the process beforehand. I am concerned about the possibility that we end up with something in public, then something in private, and then head back for a substantive debate, with everything looking a bit messy. That is my problem with the suggestion.

On the work programme, our workload has been heavy over the past 18 months and it will continue to be heavy in the coming months. However, if we have a piece of work to which someone has contributed and a member says, “I don’t think we should be taking that at this time,” it will almost look like the committee or the individual member who made that suggestion is devaluing that piece of work.

We should at least produce a line of work heading forwards that we are all agreed on. We should set ground rules that will enable us to get into the substantive debate more quickly.

We return to item 2.

Jenny Marra

As I explained at the start of the meeting, more than half of today’s business is being taken in private. I have raised before my unease at the work programme being considered in private. I do not feel that there is anything that I want the Justice Committee to consider going forward that needs to be discussed in private. I am happy to discuss our priorities in public. Sandra White picked me up on my reference to my party, and I clarify that I meant my party’s priorities for the committee and what it should be looking at—I do not have anything to discuss in private. The work programme should be open to scrutiny by the public, which is why I propose that item 5—as it now is—should be taken in public.

The Convener

For 13 years, it has been standard practice for the committee to discuss in private our work programme as well as draft stage 1 reports, likely witnesses and approaches. Are you happy for us to consider in private item 6, which is a draft report, item 7, which is a draft stage 1 report, and item 4, which is our approach to an issue?

Jenny Marra

I am sorry but I have got the item numbers mixed up. Do you have a revised agenda?

Item 4 is the approach, item 6 is a draft report and item 7 is a draft stage 1 report. Can we narrow our present discussion to the work programme?

Jenny Marra

I thought that your proposal was to take them one by one.

I am just trying to move us on. We have a lot of work to do. If you do not want to debate them, we can tick off items 4, 6 and 7 and talk just about whether the work programme should be discussed in public.

Jenny Marra

I would be happier if we stuck to your original proposal to discuss them one by one.

Right. My question is, why should we discuss an approach to a legislative consent memorandum in public?

Graeme Pearson

I suppose that you could turn the question around and ask why there is a natural presumption that we would always discuss such things in private.

We have done so for 13 years.

John Finnie

Every parliamentarian wants the electorate to see the work that they are doing. I presume that, if there is a long-standing convention in place, there is a reason for that. Without putting the clerk on the spot—although I am about to put the clerk on the spot—would it be possible to outline the rationale behind decisions to take individual items in private? I am supportive of the committee doing as much as possible in public, but that may fetter us when we are discussing individual witnesses.

Peter McGrath

Each case must be considered on its merits, and it is obviously a decision for the committee.

The convener is right to identify that the main reason for discussing the work programme in private is that, in discussing potential future work, the committee may discuss potential future witnesses, and it may be considered more appropriate to do that in private. In each case, it would depend on the circumstances of the item that is under consideration.

The Convener

I am a very open member of Parliament, and I always have been. I take on the Government on all sorts of occasions; I will probably even do so this afternoon. For me, the issue is the freedom of members to discuss openly with other members whether we take on certain issues and how we approach matters. Members may sometimes say silly and inappropriate things—perhaps I should not have said that in public.

If we were to try and record such a discussion in the Official Report, it would be messy—people would be jumping in and the conversation would be very free. It is not like taking evidence or any of the other things that we do, in which we try to bring a coherence to our questioning, even though we have differences.

With regard to the efficient working of the committee, there is not a single sinister element in any of us doing any of those particular things in private. It just so happens that today there are four items in private, two of which are draft reports, which we have always taken in private to allow for free discussion and for amendments to be made.

We will go over the draft stage 1 report and perhaps take out the odd word, and members may fight over an adverb. It would look awfully daft to the world outside if we go to the wire over a conjunction or a semicolon. That free discussion allows members to relax and be honest, and sometimes not to look foolish.

I have been in Parliament for a long time and have been a member of various committees, and I have never objected to taking business in private with conveners of any other hue. When we go through the work programme, there is a reason why we might not take something on: perhaps we have too much on our plate, or we think that a reasonable case has not been made to take on that piece of work rather than something else. That can be quite hard for people who have taken the trouble to write to the committee to ask us to do something.

In fairness to committee members and to those people, we must have the freedom to sift through work. As Jenny Marra knows, we decide on our work programme collectively. This committee has come to decisions collectively and in good will, even though we often have different views. I am rather sad to see business that has been held in private over my 13 years in Parliament being raised as a contentious matter, because to me that is wholly unnecessary.

Conveners across the committees have operated in that way for as long as I can remember, and today just happens to be one day when there are several items in private. On other days, we will take nothing in private.

I have said my bit, so I will let others come in, but I think that the issue is a bit of a red herring.

Graeme Pearson

Peter McGrath might be able to help us again. With regard to the likes of item 4, which is on the Prisons (Interference with Wireless Telegraphy) Bill, is it feasible that we could discuss our approach in public? If we decide that we want to take evidence, we can go into private session to discuss witnesses. At least we could have the logic of holding the debate on the public record, because it looks like a sinister thing—

That is not—

Graeme Pearson

Wait a minute—let me finish. As a headline, it looks like a sinister thing, but in actual fact it is fairly mundane and practical.

I agree with you, but I think that we would have to have a separate agenda item for the selection of witnesses.

Graeme Pearson

That is why I am asking.

That is fine—that is not a problem.

Graeme Pearson

We might decide once we have discussed the issue that we are happy to let it flow through and that we do not need to do anything more about it, or we might want to talk about witnesses.

I would be very unhappy about the discussion of witnesses being held in public.

Graeme Pearson

That is what I am saying—we can go into private at that stage. At least we will have talked the business through in public.

The Convener

I would also be very unhappy if draft stage 1 reports were debated in public. We come to a pretty well unanimous decision on such reports, and we manage to get a form of words that we can sign up to. That has sometimes not been easy, but folk have been prepared to give and take a bit. I do not know whether they would be prepared to do that if the discussion was held in public, and that worries me in respect of the operation of the committee, which has been very successful.

Jenny Marra

That relates to the discussion of our reports, whereas Graeme Pearson’s suggestion relates to item 4, in which we will consider our approach to the Prisons (Interference with Wireless Telegraphy) Bill, rather than discuss a report. We can move into private for the selection of witnesses. That seems reasonable to me.

That is fine. Does the committee agree to take item 4 in public, and to discuss only our approach to the legislative consent memorandum, not witnesses?

Members indicated agreement.

Right, we have done that. I would like the committee now to consider whether we should continue to deal with draft reports, including draft stage 1 reports, in private for the reasons that I have given.

Graeme Pearson

If I remember what happened last year correctly, if a member of the committee feels strongly about a report, they can have a paragraph put in. That means that, if we fall out about something, we can record that there was a falling out, even though the discussion took place in private. If there is a feeling that, because of the way that the committee is operating, we are not ventilating matters properly, we can stand on principle and insist that a paragraph be inserted in the report, even though it might be a minority view.

Absolutely.

Graeme Pearson

That is my memory from last year, not that it happened often.

The Convener

This is my fourth time as a convener. I have never stopped someone expressing a view. I try to get consensus on the wording first so that everyone can sign up to it but, sometimes, that is not possible. In those cases, so be it. It is perfectly right that someone should be entitled to express a different view.

Graeme Pearson

We need to be careful about the issue that Jenny Marra raises, which is that the fact that we are not discussing something in public makes it look like we are being secretive. We must demonstrate that we deal with matters in private only when we absolutely have to, and that we still publicly record our views. It is a reasonable issue for discussion. I hope that we can come to a sensible outcome.

Colin Keir

I have a slightly different view. I find the private sessions handy because we can have a substantive debate, with ground rules that we all know, without having a party-political bun fight, because we have agreed the process beforehand. I am concerned about the possibility that we end up with something in public, then something in private, and then head back for a substantive debate, with everything looking a bit messy. That is my problem with the suggestion.

On the work programme, our workload has been heavy over the past 18 months and it will continue to be heavy in the coming months. However, if we have a piece of work to which someone has contributed and a member says, “I don’t think we should be taking that at this time,” it will almost look like the committee or the individual member who made that suggestion is devaluing that piece of work.

We should at least produce a line of work heading forwards that we are all agreed on. We should set ground rules that will enable us to get into the substantive debate more quickly.

Sandra White

Convener, I agree with Graeme Pearson, Jenny Marra and you about witnesses—that issue must be dealt with in private.

I do not think that it is helpful when Jenny Marra talks about secrecy, because we are not being secretive; we are protecting everyone. I am not a lawyer, so when I read the papers, I do not understand the lawyerspeak, and I am concerned that I might be seen to be stepping over the mark if everything is held in public. If we are going to have such discussions in public, the clerks would need to keep us absolutely right, because of the legal situation.

The issue must be looked at seriously. However, the clerks would need to produce a paper to make me comfortable with certain things being held in public.

The Convener

I have said what I have to say. As I said, I have been a convener four times and I hope that I know something about convening by now. Good will is terribly important to the good running of a committee. Political posturing is a committee’s death knell. People having arguments in public over what might be, at the end of the day, quite a small matter in a stage 1 report is bad for a committee. Our duty is to try to work together, regardless of our political differences, to be coherent in our approach to legislation and to put the Government to the test. That is much easier to do in inquiries, although this committee has not had much opportunity yet to do that.

I have seen the process work well—if it ain’t broke, don’t fix it. I understand that it looks on paper like we are taking a lot in private. That happens to be the case today, but there will be weeks when there is nothing in private. It is swings and roundabouts.

We take items in private for the reasons that members have aired, particularly when discussing the work programme. We have good reasons for not doing certain things. If we decide not to take up something that somebody has raised with us, we write a letter to them explaining why we have been unable to take it up. It is not that they are not informed. It is done in a proper manner.

10:30

Roderick Campbell

I do not want to reiterate what members have already said but, on the work programme, there is something to be said for the fact that we can speak freely about competing priorities. If we all had to be very careful about what we were going to say because the discussion was going to be in public, that would be a disadvantage.

Jenny Marra

I will make a quick comment about the work programme item, which is the item about which I feel most strongly. I understand what colleagues are saying about having a free discussion, but I feel that, because we have been elected to the Parliament, we must have broad shoulders and be able to justify the committee’s priorities in public and to the public.

Politics is all a matter of competing priorities—we will always have that issue. However, the more that we push into private our discussions of those priorities, the less transparent we are to the public.

The Convener

Right. We have aired the issues. I will now go through—one at a time—the items that we must decide whether to take in private.

Do we agree to take item 4, which is discussion of our approach to a legislative consent memorandum, in private?

Jenny Marra

Is that the one on prisons?

It is item 4. We can take it in public and not discuss witnesses. Do members agree to that?

Members indicated agreement.

Do we agree to take in public item 5, which is discussion of our work programme?

Members: No.

The Convener

There will be a division.

For

Marra, Jenny (North East Scotland) (Lab)

Pearson, Graeme (South Scotland) (Lab)

Against

Campbell, Roderick (North East Fife) (SNP)

Finnie, John (Highlands and Islands) (SNP)

Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)

Keir, Colin (Edinburgh Western) (SNP)

White, Sandra (Glasgow Kelvin) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

It is regrettable that other members are not here. Is it proper to ask the other members who were not able to come for their view, or can they not take a view on the matter now?

Peter McGrath

They can express a view, but—

The Convener

We will ask them, because we have now taken a vote and it is unfortunate that they are not here. I would like them to express their view on whether the work programme should be discussed in public or private.

Do members agree to take in private item 6, which is consideration of a draft report on the legislative consent memorandum on the Defamation Bill?

Members indicated agreement.

Do we agree to take in private our consideration of a stage 1 report, which is item 7?

Members indicated agreement.

Thank you very much.