Seòmar agus comataidhean

Good morning. I thank the committee for asking me to speak to the regulations.

The purpose of the instrument is to support implementation and commencement of the Age of Criminal Responsibility (Scotland) Act 2019, which provides for orders in relation to children to allow investigation of their actions, notwithstanding that they will not have committed offences.

The orders, when they are granted, will largely permit the sort of interventions that the police would otherwise be able to make in respect of suspects, including searches, interviews and taking of prints and samples. The interventions will enable the police to determine what has happened so that the right support can be put in place for a child whose behaviour has caused harm, as well as for the person who was harmed by that behaviour.

The legal aid provisions are to allow for representation in respect of applications for the orders, in order to ensure that the rights of children—and others, in some cases—are protected in the course of proceedings.

That is a brief overview of the regulations. I am, of course, happy to answer any questions that the committee has.

The purpose of the draft order is to confer immunities and privileges, in so far as those are within devolved competence, on the delegation of the EU and Euratom, their staff members, diplomatic agents and family members. The privileges and immunities are conferred in accordance with the UK-EU establishment agreement. The order will give effect to the devolved aspects of that agreement.

Equivalent provision for reserved matters and devolved matters in the rest of the UK was conferred by legislation at Westminster in July 2021. However, to the extent that the privileges and immunities relate to devolved matters, the issue falls again to the Scottish Parliament.

Before I go into the draft order in further detail, it might be helpful to set out the background. Following the UK’s departure from the EU, the EU established the delegation of the European Union to the United Kingdom, which replaced European Commission representation. The delegation is responsible for representing the interests of the EU in the UK and for co-ordination among the 27 EU member states. EU delegations exist in more than 140 countries outside the EU around the world. The EU negotiates establishment agreements with each of those countries to regulate its status, privileges and immunities.

Legislation is required to implement in UK domestic law the obligations of the UK-EU establishment agreement. Two separate orders are required: a Scottish order and a parallel UK order. The UK order came into force on 22 July 2021. Contingency measures are currently in place by virtue of the European Union (Withdrawal) Act 2018. However, if a Scottish order is not made, disparity will remain between Scotland and the rest of the UK in giving effect to the establishment agreement.

I turn to the detail of the draft order. It treats the EU delegation, including Euratom, in terms that are broadly similar to those that have been agreed with other non-EU Governments globally. Important provisions are included to ensure that the immunities and privileges that are conferred do not impede the proper administration of justice.

The draft order provides the EU delegation with criminal, civil and administrative immunity when operating within its official activities. The premises and archives of the delegation, in so far as they are in Scotland, are also to be inviolable, and the property and assets of the delegation in Scotland are to be immune from search, confiscation or other interference.

EU staff members who have been notified to the Foreign, Commonwealth and Development Office as diplomatic agents will have criminal, civil and administrative immunity, and their residences will be inviolable. Diplomatic agents and their family members will not be obliged to give evidence as witnesses, and their personal baggage will be exempt from inspection unless there are serious grounds for such inspection.

The draft order confers criminal, civil and administrative immunity to staff members, including immunity from personal arrest and detention, but only in respect of the exercise of their functions within the scope of their official activities. Staff members’ official papers and correspondence will also be inviolable.

The draft order provides certain fiscal exemptions for the delegation, its staff and their family members. Those include exemptions from direct taxes on the assets, property, income and operations of the delegation. The diplomatic agents, staff members and their family will also be afforded various exemptions in respect of their furniture and personal effects, as well as relief from paying council tax. However, they will not be entitled to any devolved benefits that are paid.

Importantly, the draft order permits that immunity for diplomatic agents, staff members and their family members can be expressly waived in certain circumstances. For example, immunity and inviolability will not be conferred in respect of any alleged road traffic accidents and road traffic offences.

The draft order implements the establishment agreement that the UK has reached with the EU regarding its delegation in London, in line with global practice. It enables the delegation to conduct its activities in the UK while ensuring and upholding protections for the effective administration of justice. The European Union delegation plays an important role in the UK-EU relationship, supporting a partnership based on friendly co-operation.

I commend the draft order to the committee.

I thank Pauline McNeill for noting that change. That specific carve out has been agreed for the draft order.

The draft order confers various legal immunities and privileges on the conference of the parties to the United Nations Framework Convention on Climate Change—COP26—and specified participants.

COP26 is considered to be the most significant climate change event since the 2015 Paris agreement. It is the biggest summit that the United Kingdom has ever hosted and it is a huge honour to welcome the conference to Scotland.

To enable COP26 to fulfil its purpose and take place successfully, it has been agreed that certain privileges and immunities require to be granted to certain attendees. A host country agreement, negotiated between the UK Government and the UNFCCC secretariat, regulates the privileges and immunities that are to be afforded to certain COP26 attendees—for example, certain tax exemptions and immunity from legal process. The agreement obliges the UK to abide by the terms of the protocol on privileges and immunities.

The draft order gives effect to those agreed obligations in so far as they relate to devolved matters in Scotland. Equivalent provision in respect of host country agreement obligations for reserved matters and devolved matters in the rest of the UK is being made by order in council at Westminster. However, to the extent that the privileges and immunities relate to devolved matters, the issue rightly falls to the Scottish Parliament. Subject to parliamentary consideration in this Parliament and at Westminster, both orders in council will be signed.

To assist the committee, I will say a little about the nature of the privileges and immunities. The draft order provides that the representatives of parties to the UNFCCC, the Kyoto protocol and the Paris agreement, the representatives of observer states and the officials of the specialised agencies of the UN will have immunity from suit and legal process. Those immunities cover things done or omitted to be done only while they are exercising their official functions in connection with the Glasgow conference and during their journeys to and from conference premises. The order also provides for the inviolability of any private residence used by representatives during COP26, as well as exemptions and privileges in respect of personal baggage and exemption or relief from all devolved and local taxes.

Importantly, the draft order permits that immunity can be expressly waived by an appropriate party or state. It also provides limited immunity from suit and legal process for representatives of the clean development mechanism executive board. That immunity is conferred only while the executive board exercises its official functions as part of the conference and can be waived by the secretary general of the UN.

It is customary for a sovereign state to grant such privileges and immunities to diplomatic missions and international organisations, to enable them to function. The host country agreement between the UK and the UN on COP26 is broadly in line with that global practice and includes provisions to ensure that immunities and privileges do not impede the proper administration of justice. It is important to emphasise that immunity does not provide carte blanche for ignoring the laws and regulations of the host country. The privileges and immunities that will be conferred by the order are granted primarily on the basis of strict functional need, and it has been agreed by the UK and the UN that they are of no greater an extent than is required to enable COP26 and the specified individuals connected with it to function effectively.

The immunities and privileges are limited in that they apply only to official functions that are undertaken in connection with the Glasgow conference, they can be waived and they do not give an individual freedom to commit criminal activity. The immunity is similar to but more limited than that which has, for generations, been conferred on diplomats working in foreign jurisdictions. As with diplomatic immunity, all individuals who benefit from such privileges and immunities in Scotland are expected to respect Scots law, both criminal and civil.

The order will implement the agreement that the UK has reached with the UNFCCC secretariat in line with global practice. It will enable COP26 to be held in Glasgow and the conduct of associated activities in the UK, while ensuring and upholding protections for the effective administration of justice. As a good global citizen, the Scottish Government has a responsibility to bring the draft order to the Parliament.

First, I will give a bit of context around legal aid. We hear quite a lot about the problems with legal aid, so I want, for the committee’s benefit, to set out a couple of the positives about legal aid in Scotland. The committee might not be aware that 72 per cent of the population of Scotland are eligible for legal aid. We are a leading jurisdiction on legal aid—we are one of only two jurisdictions that have a completely uncapped fund that is entirely demand led; only Scotland and the Netherlands operate such a system. The system is working for the people of Scotland, but we want to modernise it and provide a bit more flexibility. As we discussed earlier, we want to be able to direct aid more than we have previously.

I suppose that there is a way of thinking about legal aid that is more like how we think about other public services, because it is a kind of public service. Should we try to reframe legal aid in that way and, potentially, put the user more at the centre of how it is accessed and how the system is set up in the future?

We have talked about the timings; Denise Swanson will talk a bit about themes that came through the consultation. However, I believe that, in general, people are looking for a user-centred system that is easier to access and use.

Last year, we published what I think was a first: a consultation on what sort of approach we should take to tackle prostitution in Scotland, with an emphasis on challenging men’s demand for prostitution and with the aim of working to reduce the harms and supporting women to exit, should they wish to do so. We received about 4,000 consultation responses, which is quite a lot. Some were from organisations and some were from individuals.

The responses have been published, so members of the committee are free to have a look at them. It would be fair to say that they were evenly split. We did not ask whether we should change the law on prostitution, but lots of people wrote in to say that they favoured one criminal approach or another. Lots of people supported the Nordic model, in which the seller is decriminalised and the buyer is criminalised, such as is done in Sweden and a number of other countries in Europe. There was an approximately equal level of support for what is called the decriminalisation model—the sort of thing that is being done in New Zealand.

The committee may be aware of the Scottish Government’s equally safe strategy, which sets out that commercial sexual exploitation, of which prostitution is a part, is a type of violence against women. If we want an equal society in Scotland, we need to think about how women and girls should be treated. I am particularly interested in making Scotland a hostile place for sex traffickers. I will not beat about the bush: I am really keen that we set that out, and we are very firm on that. To my mind, challenging demand for prostitution is one of the ways to do that.

I know that this is a long answer to your question. We will develop a model for Scotland that contains an element of challenging demand, but we have not got to the point where we can set out exactly what that model will be. We have quite a bit of road ahead of us, and I do not anticipate that our bill will be introduced imminently. However, there is a lot of potential to think about how we want women and girls to be treated in a modern Scotland.

I do not think that there is a need. From my recollection, the divorce laws in Scotland are quite different from those in England and Wales. If I am remembering correctly, the issue in England was that there was quite a long time to wait if one partner did not agree to a divorce. I think that it was five years—my officials can correct me if I am wrong—whereas in Scotland it is two years. We do not have plans to do anything similar, because I do not think that there is the necessity for it in Scotland.

Scotland did not vote for Brexit. It is going to be very difficult in a whole host of areas—I will stick to my own brief and not rehearse all of them now—where what we are going to end up with is far shy of the arrangements that we had previously.

The co-operation on civil justice that exists among the members of the European Union is obviously not there for us now that Brexit has gone through, so we are in a bit of uncharted territory. I will ask Neil Rennick to come in to give more background, because it is quite complicated.

As the committee might be aware, previously we had the Brussels 1a and Brussels 2a regulations; we also had the Lugano convention. We are not party to any of those anymore, which means that there is quite an issue with regard to co-operation on a number of civil justice issues across borders. That is going to make things a lot more complicated, and I think that it is going to slow things down.

On family law matters, we still have the Hague convention, and that gives us something of a fallback. However, for some civil and commercial law issues, we do not have that fallback, so the best option is for us to get back into the Lugano convention. I think that that will be the best way to protect the interests of Scottish businesses and citizens, although that protection will not be as good as it was before. That is where we are.

The European Commission has advised that the EU should not let the UK be a party to the Lugano convention; however, the EU is not the decision maker—the nation states in the European Council will make that decision. Some countries—France, in particular—have said that they are not a fan of the idea and do not want the UK to have membership, but other countries are saying that they are okay with it.

Neil Rennick can add more detail about where we are for those who have a civil law issue right now, when we are not covered.

You are right—it does seem that that work was quite a long time ago. For the benefit of the newer members, I point out that I was a minister in the justice portfolio for the last three years of the previous session of Parliament, and have been working on reform of legal aid and legal regulations for quite a few years.

As the committee will probably understand, there is quite a lot to work through. We are trying to take that at the right pace and to build consensus, because some of the proposed changes are really quite broad and would have quite a widespread impact on the sector. The right way to go about all this—I try to work in this way in general—is to try to build consensus, but that can sometimes take quite a bit of time.

I appreciate that that is not always what people want to hear. When people see that there is a need, as Pam Duncan-Glancy has outlined very well, they want to move forward to address the issue and do something, so I apologise for the fact that the work is going quite slowly.

We are now working towards legislation on legal aid, which would give us the ability to target support in ways that we have perhaps not previously been able to do. I cannot give you a timeframe for when we will publish a bill, because it is not up to me, but we are certainly working towards doing something in the current session of Parliament.

When it comes to the number of cases, the answer is that we do not know. We think that, in particular, fewer family cases have been started in court. It may be, as you have said, that those cases will come through in future but, at this point, we do not know.

On virtual business, the picture is mixed. There was a lot of positivity about remote hearings for procedural matters in particular. That positivity was right across the board, I think—civil and criminal. There has been quite a lot of engagement, and I may ask Denise Swanson or Neil Rennick to speak about that. A number of surveys have been done by the Law Society of Scotland, I think, and others; I think that the Faculty of Advocates has done some engagement with its members on what they think. The Lord President has suggested that remote hearings should certainly feature in the future in some form or other.

Adapting to Covid has presented us with opportunities. The ability to change things has been very beneficial in some cases. Previously, civil business was literally pinned to the walls of the court. That was how things used to be done. Obviously, during Covid, nobody was going into court, so the business was published online. Most people would say that such changes are more efficient and allow us to get business done.

In the criminal and the civil system, we need to look at which of those changes—what uses of technology—are working and improving the system, and at what we should and should not retain. Obviously, we want to make sure that we maintain access to justice. We do not want participants—for example, complainers—to feel that they are not able to present their evidence in the best way. We have definitely got to get that balance. One of the officials may be able to talk a little more about the research that has been done.