Group 1 is on the appointment of a commissioner/establishment of a commission. Amendment 1, in the name of the minister, is grouped with amendments 1 to 4, 6 to 26, 30 to 34, 36 to 96, 98, 100 to 104, 106 to 128, 131, 132, 134, 136, 137, 139 to 150, 152, 153, 156 and 158 to 174. I draw members' attention to the pre-emptions that are printed on the groupings paper.
The Executive amendments in group 1 will implement the commitment that we gave at stage 1 to create a commission instead of a commissioner.
The bill as introduced was framed in terms that would create an office of the Scottish commissioner for human rights. That followed the model that the Parliament adopted in previous cases, such as the Scottish Public Services Ombudsman Bill.
During stage 1, it became clear that the Justice 1 Committee and others had concerns about the potential difficulties involved in entrusting a single person with the task that was to be given to the proposed commissioner for human rights. Having considered those concerns, and as part of a wider strategy, the Executive agreed to revert to the original concept of a commission.
Let me pause for a moment to say, by way of providing some context, that the general architecture and the accountability and administrative framework have been substantially strengthened following the stage 1 discussions and the committee's suggestions. The commission will now operate within the context of a strategic plan. We have also changed the commission's accountability to Parliament on budgetary and locational issues, which will be much more closely tied to the powers of the Scottish Parliamentary Corporate Body.
Amendment 1 will replace the current section 1(1) with a new subsection that will establish
"a body corporate to be known as the Scottish Commission for Human Rights".
Having considered the issues that the committee raised at stage 1 and the concerns that have been raised in wider contexts, such as the recent Procedures Committee and Finance Committee inquiries into commissioners more generally, we propose significant improvements to the architecture of the original proposals. Several of the amendments are consequential on the change of wording from "Commissioner" to "Commission".
Amendment 100 will amend schedule 1 by inserting a new paragraph to provide that the commission will have a chair and up to four other members. Like the existing commissioners, the chair will be appointed by Her Majesty, on the nomination of the Parliament, with the other members being appointed by the parliamentary corporation. There is a saving in that procedure. All the members could be full or part time, but a likely outcome is that the chair will be full time and the other members will be part time. The change could, therefore, result in administrative cost savings, compared with our original estimates.
In light of the views expressed in the Parliament at stage 1, what consideration did the minister give to amalgamating this office with one of the other offices that Parliament has already established and thereby simplifying some of the architecture of the commissioner and ombudsman sector for which Parliament has legislated in the past and for which it may legislate again this afternoon?
As Mr Swinney is aware, that suggestion was the subject of discussion at stage 2 and was rejected. We will deal with the issue later.
We are all aware that a number of issues arise from both the governance and management arrangements and from the architecture and structures of commissions and commissioners. One key point is whether there is a place for a distinct focus at commissioner level on the issues involved. In my view, there is a need for a clear focus on human rights through the establishment of a Scottish human rights commission. Notwithstanding that, there is considerable scope for the commission to share common and back-room services with other bodies and to consider the option of co-location. As Mr Swinney is aware, a lot of attention has been given to those matters during consideration of the bill—far more than was the case during the appointment of other commissioners.
There are further minor amendments to the arrangements. A provision in schedule 1, as introduced, prohibited the commissioner and deputy commissioners from holding any other office or employment without the consent of the parliamentary corporation. That provision was removed at stage 2, to avoid any implication that members of the commission ought to be full time.
Amendment 117 allows the commission, with the approval of the parliamentary corporation, to make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of the commission. That reflects the status of the commission as a body corporate with employees.
The remaining Executive amendments in the group make changes consequential to the move from a commissioner to a commission. For example, they change the references in various parts of the bill. Although it looks as if there is a large number of amendments in the group, they all relate to the same issue.
Amendments 3 and 4, in the name of Margaret Mitchell, revisit the issue on which John Swinney touched. What they propose was discussed at length and rejected at stage 2 by the Justice 1 Committee. Essentially, the amendments would make the Scottish commission for human rights and the Scottish public services ombudsman one organisation, by requiring the commissioner to be the same person as the ombudsman and the deputy commissioners to be appointed only from among those people who are already deputy ombudsmen.
I cannot support the proposal and will repeat some of the arguments that were made before the committee at stage 2. At present, the ombudsman is a full-time appointment, and the expectation is that the chair of the human rights commission will also be full time. There is a significant contradiction between requiring the ombudsman to take on the significant extra responsibilities that are envisaged for the chair of the human rights commission and expecting her to continue to perform her ombudsman duties on a full-time basis.
More important, it would be inconsistent with the principle of establishing a new post to stipulate that it could be filled only by the holder of another post. The Parliament should be able to reach a view before taking a decision, rather than it being laid down in advance who must be appointed. That will allow the substantial difference between the ombudsman's role and that of the commission, on which I have touched and which the ombudsman has recognised, to be taken into account. It will also be more in accordance with the principles that govern public appointments, which are aimed at ensuring the accessibility of all
More fundamentally, it remains our view that there is a significant gap that only the creation of a separate human rights body can fill effectively. In that context, it is worth noting that a report that Amnesty International published recently concluded that there was still a widespread lack of focus on human rights among Scottish public authorities and called for more to be done to secure awareness and compliance. If only one report had made those points, that would have been one thing. However, reports by organisations as varied as the better regulation task force, the National Audit Office, the British Institute of Human Rights and the Executive itself reached similar conclusions.
It is also worth noting that, at stage 1, the Scottish public services ombudsman herself welcomed the bill and expressed a preference for the creation of a freestanding human rights body over any expansion of her remit. In doing so, she noted the substantial difference between her role, which is reactive and focused on individual complaints, and the role of the proposed SCHR, which is proactive and aimed at addressing more general issues. We do not believe that there is a significant overlap between the two bodies.
That is not to say, of course, that the commission and the ombudsman's office should neither work closely together on issues of mutual interest nor explore opportunities for sharing support services and other resources. Indeed, we have taken significant practical steps to facilitate the possibility of sharing resources among different bodies by discussing the matter with the ombudsman, her staff, the SPCB and the United Kingdom team with responsibility for establishing the Great Britain commission for equality and human rights. Indeed, that reflects our general approach to public bodies.
I will highlight one matter that might be appropriate in that regard, although I should point out that we do not know what cases will arise in future and that, of course, many people already take such cases through the courts.
A human rights analysis undertaken by Professor Alan Miller at the request of Carstairs state hospital led to very significant improvements in the institution's practices and policies that better safeguarded the inmates' human rights—which I trust Bill Aitken accepts are important; improved public practice at the hospital; and, bearing in mind the challenges that might have been made to the previous regime, resulted in possible cost savings.
I stress the point about location because, given that both the UK Government and the Executive are establishing new bodies, the SPCB should fully investigate the possibility of co-locating both organisations if, as I hope, the bill is passed this evening.
The key point is that Parliament must have the discretion to decide who should be appointed as commissioners or members of the proposed human rights commission on the basis of their suitability for those roles. As a result, I hope that the Parliament will see fit to reject amendments 3 and 4, even though I understand the point that lies behind them. I also hope that, given the strengthened financial and administrative framework, members will support the new changes that we are seeking to make to the commission.
I move amendment 1.
Amendment 3 seeks to confer the functions that the bill establishes for a Scottish human rights commissioner on the Scottish public services ombudsman by extending his or her role to include human rights promotion and awareness-raising. The Justice 1 Committee identified that narrow gap in existing service provision during its stage 1 consideration of the bill.
"established by Act of the Scottish Parliament" whose principal functions would be the same as those of the commission for equality and human rights south of the border. The problem is that no one in Scotland has had a human rights promotion and awareness-raising function, although that does not mean to say that the promotion or protection of human rights has been ignored or neglected here—indeed, far from it. Pre-devolution, Scotland had a very good record of dealing informally with human rights issues. Post-devolution, with the incorporation of the European convention on human rights into Scots law, courts must take account of human rights issues and, under the Parliament's standing orders, every
In addition, post-devolution, numerous commissioners have been created to deal with matters that range from health to freedom of information. All the commissioners also have responsibility for human rights in the areas that fall under their remits. On top of that, non-governmental organisations and HM prisons inspectorate for Scotland all have a human rights role.
Can the member elaborate on her statement that those other commissioners have a human rights role? By that, I do not mean something incidental but something central and intrinsic to their role.
The minister has only to look at the work of the commissioner for children and young people. She is certainly not slow in promoting human rights or highlighting any aspect of her remit in which she thinks that human rights are being adversely affected.
The gap is a narrow one, so the minister's response, which is to create a commission or a commissioner, is in our view disproportionate. The minister's proposal certainly does not provide a value-for-money solution, as it will cost £1 million per annum. That money could and should be used to give voluntary organisations the funds to carry on in the role that they perform very well, with their expertise and experience in promoting and protecting human rights and, crucially, in taking up individual cases. The bill does not give power to either a commission or a commissioner to take up individual cases.
On top of that, I believe that by giving the role to the Scottish public services ombudsman, unnecessary duplication and overlap would be avoided. There would be a one-stop shop, which the public could readily access and use to address their concerns about human rights. Such a role would certainly complement the Scottish public services ombudsman's current role, which is to investigate maladministration. Human rights are a huge aspect of that role.
The main advantages would be that complementary role and the fact that there would be a one-stop shop. The public services ombudsman already has, from her investigations of maladministration, a good idea of where gaps exist and where she would like to promote and raise awareness of human rights among local authorities and other public bodies. Crucially, our proposal would save a considerable part of the £1 million that has been earmarked to pay for a commission or a commissioner. The money would be much better used to fund voluntary organisations rather than pay for advertising or for
I support the arguments that Margaret Mitchell has put forward. Those arguments must be carefully explored by Parliament before we establish another stand-alone commission to add to the number of commissioners for which the Parliament has already legislated.
I preface my remarks by saying that I have no doubt that human rights issues must be addressed and that awareness of human rights must be improved. However, I doubt whether, to make that happen, we need to establish a separate and discrete infrastructure in addition to the infrastructure for which Parliament has already legislated over the past few years.
I intervened on the minister to ask him what consideration had been given to the arguments against the proposition that Margaret Mitchell has put forward. The fact that an amendment is rejected at stage 2 does not render the argument futile. Rather, we must hear compelling arguments why it is necessary not to build on the existing infrastructure that we have established but to establish a stand-alone commission. With the greatest respect to the minister, I did not feel that in his response to my intervention he provided a compelling explanation of why the incorporation of the human rights remit and responsibilities within the functions of the Scottish public services ombudsman could not be done following the requisite changes that would make that possible.
Does the member recall that the issue of whether a Scottish human rights commission could be amalgamated with other bodies was included in the consultation on the proposals? That approach was considered as part of the preparatory work on the bill as well as more recently during stage 2 consideration.
I do not deny that, but I have heard no compelling reason why that route should not have been followed.
The remits of existing office-holders could be amended by the Parliament, if the Parliament deemed that to be the most appropriate way to proceed. As I said, human rights gaps exist and need to be addressed. We need to ensure that there are appropriate organisations that have the appropriate responsibilities to address such issues. Changes could be made, if the Parliament was minded to move in that direction.
The minister said that a purpose of the exercise is to secure greater awareness of human rights
In response to Bill Aitken's question about human rights issues that have been addressed, the minister cited the example of the state hospital, at Carstairs. Human rights at Carstairs needed to be addressed, but the issue was not addressed by a commissioner; indeed, it was dealt with before the proposal to have a human rights commissioner was made. Why do we need to establish a £1 million infrastructure, given that various processes of public policy allow us to address such issues? If there are gaps, let us allocate responsibilities and statutory duties to office-holders and give those people the appropriate resources to allow them to do the job, rather than expand and confuse the infrastructure of governance in Scotland. I hope that members will reflect on that point. The democratic Parliament of Scotland has a duty to ensure that we have a Government infrastructure that is simple, efficient and responsive and, most important, which does not duplicate what is going on in different corners of the public arena.
The issue could have been approached much more effectively, without incurring the cost to the public purse that is envisaged. We are repeatedly told that the spending situation will get tighter and hard choices will have to be made. This morning's debate on the budget review was all about the hard choices that we face. However, we do not seem to be making hard choices about how we allocate responsibility with resources, without increasing the burden on the public purse.
Is the member aware that the Executive has set aside £58 million, to cope with the possibility of legal action on slopping out? Slopping out is a human rights issue that could have been successfully tackled by a commissioner. Prisoners are not popular people and they cannot rely on MSPs to make their case.
With the greatest respect to Mr Harvie—and to Mr Wallace—the issue could have been resolved years ago by Mr Wallace. A commissioner could not have directed Mr Wallace, when he was Minister for Justice, to end slopping out. A minister is an elected member of the Parliament who is, quite properly, accountable to the Parliament. Mr Wallace was entitled to decide to spend money not on ending slopping out but in another fashion—[ Interruption. ] If Mr McCabe, who was absent from this morning's debate, wants to intervene, he should get on his feet. I cannot hear what he is trying to say.
To return to Mr Harvie's point, Mr Wallace was the democratically elected Minister for Justice and was entitled to take the decision that he took on slopping out, and the Parliament was entitled to hold him to account for that. The decision was completely within his powers. If he was still the Minister for Justice, no commissioner today could direct him on that matter. I would not approve of a commissioner who tried to do so, because the electorate must determine whether we take the necessary action. I reject Patrick Harvie's argument entirely.
Parliament has an opportunity to pause and reflect on the issues. We should not clutter up Scotland's infrastructure but take a sensible step forward—Margaret Mitchell's amendments and those of other members would help us in that respect. Parliament needs to pause and reflect on the issues before we commit to more public expenditure that could go to other matters. The minister's approach will not assist in the governance of Scotland or in addressing the human rights problems and concerns that our constituents bring to our attention.
As I said when the Parliament debated the bill previously in a substitute chamber, my starting point has always been that I was elected to the Parliament to represent people and to take seriously the issue of human rights, which I have done. I believe in the European convention on human rights and in many other rights that are not covered in that convention. I have always argued that every single elected member in the Parliament has a responsibility in relation to human rights and that that is our primary purpose.
Patrick Harvie and others have argued that, if we had a human rights commissioner now, we would not have slopping out in prisons today. I put it on the record that I utterly oppose slopping out in prisons—it is wrong and we are well on the way to ending it. However, if I thought for a minute that the human rights commission would think that its priority and that of the general public was to spend public money on taking cases to court, I would not support the proposals.
It is important to look carefully at the Executive's amendments, because they fit together. Importantly, the Executive has, I think, changed substantially the direction in which it is going. The bill was amended so that the duty of the
The question that we will determine this afternoon is whether any body should exercise a human rights function. Although the Justice 1 Committee did not endorse the bill's general principles and had divergent views on how the human rights function should be exercised, our view was that someone should have that statutory function. The proposals have changed from being for a commission to a commissioner at least four times, and we must make a decision once and for all today—that is for sure.
The Executive's proposals today are a wee bit different. The structure of the new body is important and we have before us the possibility of a commission that involves part-time people. That is important because, as a trade unionist, I believe that trade unions can make a significant contribution to human rights. The proposals would allow people from different backgrounds to be part of the structure and to contribute to the promotion of human rights.
Whatever members think on the issue, they should acknowledge that a lot of work has been done. Margaret Mitchell was right to lodge amendment 3, because it is legitimate for the Parliament to discuss whether the Scottish public services ombudsman is the right person to exercise the human rights function. I happen to think that the Executive's proposal to create a commission is the right way forward, although I attach some conditions to that. It is important that the rest of the debate fits in. I will not support the Executive amendments until we get further down the road of ensuring that the commission will be accountable for its finances. We need to know who will determine the location of the body—whether it is co-located with the public services ombudsman or the Great Britain commission. I do not believe that the decisions on those matters will interfere with the commission's independence.
Finally, it is important that, whatever body we set up to exercise the human rights function, that body—or person—should tell the Parliament what it intends to do with its £1 million. Were the corporate body to appoint such a body or person, it is only right that, for the five years covering the appointment, the Parliament should be told what the body or person will do with its time.
This is not just about supporting the amendments in the first group; it is about everything else that goes along with that. If we are going to have a body or person that exercises the
Even if members support amendment 3, which would give that function to the ombudsman, they still have to decide the detail of how the function will be exercised. One way or another, some decisions have to be taken. With those conditions, I support the Executive's amendments to section 1.
I very much hope that we will create a full commission for human rights. The opposition to that approach echoes the general but, I hope, minority opposition to the bill. A full commission might not be the cheapest option—although, in bandying around the figure of £1 million, we should remind ourselves that that is the annual cost of a small handful of MSPs—but it will be the best and the strongest option and will give the greatest value.
I use the word "full" to differentiate a commission from a commissioner, but I very much agree that we should give the body the full set of teeth that it will require to promote and protect human rights. I regret that we are unlikely to do that, but I want the body established so that it can grow in its authority and—I hope—be given those teeth over the years.
Margaret Mitchell's amendments propose merging the proposed commission with the public services ombudsman, but the two organisations have fundamentally different ethos. Human rights are focused on the individual. Maladministration is focused on a public body that is executing some function. In focusing on maladministration, the public services ombudsman may encounter human rights issues, but that organisation's ethos is different from that of the proposed commission. Further, I disagree with the concept that there is a narrow gap. The human rights issues that the commission will engage in cover the full range of the Scottish Parliament's functions and devolved issues.
It has also been suggested that the other bodies that engage from time to time with human rights issues can fill the gap. Other bodies engaged with human rights issues have human rights responsibilities, but all public bodies have to comply with the law. It would be bizarre to suggest that we can muddle by without any organisations whose specific focus and remit is the justice
Margaret Mitchell used the phrase "one-stop shop". The proposed commission will not be a one-stop shop if we merge it with the public services ombudsman, because the ombudsman has a role in maladministration in relation to individual cases. Regrettably, the proposed commission will only have a role in promotion. If we go down the route of Margaret Mitchell's amendments, there will come a point when an individual may be given the response, "No, I'm sorry, there's no maladministration here. This is a human rights issue. I have to put the phone down on you now because I have no responsibility for individual cases."
Would the member rather create a commission or a commissioner that cannot take up individual cases, in the hope that it may one day have the ability to do so—although perhaps it never will—or would he rather use the money available to fund voluntary organisations that do sterling work in promoting and protecting human rights for many vulnerable people in our society?
I happily join Margaret Mitchell in commending the voluntary sector for the work that it does, but it is wrong to turn up our noses at the proposed commission simply because it will be given only one of the two important functions. I want the commission to have both functions, but it is getting one of them today and that is better than nothing.
I agree with Pauline McNeill that many people would not agree that slopping out should be a priority for the commission. I am reminded of the statement—I cannot remember who said it—that the problem with human freedom is that we spend our lives defending scoundrels because oppressive laws are used first against scoundrels. If oppression is to be stopped, it must be stopped at the beginning. It is not appropriate to say that, because a group is unpopular, it should not be a priority and its human rights can have second-best status.
Is the member seriously suggesting that, if we go down the proposed route and appoint a human rights commission, it will somehow be able to direct ministers on how to spend public money? That is the only way in which a human rights commission could have ended slopping out.
I am sorry. I have taken a lot of interventions.
Members from across the political spectrum believe that the European convention on human rights is part of the moral fabric of a modern society. If we believe that the treatment of people, no matter who they are, must not slip below a certain minimum standard, we should be willing to establish a strong, independent, focused human rights commission. I hope that members will vote to do that today.
A human rights commission was not required in order for me, in September 2002, to announce the biggest-ever investment in refurbishing and building new prisons. That programme has been carried on and enhanced by Cathy Jamieson.
Life was made difficult for me when I produced the plans for reforming the prison estate, not least by Christine Grahame and the Justice 1 Committee. When they were quibbling over whether the programme should be private, private-public or public build, I remember saying to a colleague, "It is interesting that none of these people ever mentioned the need to end slopping out earlier." I take some of Mr Swinney's criticisms with a pinch of salt.
I remind Mr Swinney that, in a Conservative party debate on the European convention on human rights in March 2000, Michael Matheson, who was the SNP's deputy justice spokesman at the time, said:
"a massive vacuum has been left in relation to human rights in Scotland and that vacuum must be filled. The most effective way of achieving that would be by establishing a human rights commission in Scotland."
Linda Fabiani said:
"If the European convention on human rights is to be properly incorporated into Scots law, Scotland needs its own human rights commission in the form described in the Scottish National party amendment."
I could quote Ms Cunningham too.
I anticipated that the member would do that.
If Mr Wallace cares to think carefully about that debate, he will remember that the SNP was talking about a human rights commission that would have subsumed the various other human rights bodies that are now in place. The human rights commission that we were discussing is nothing like the one that is being discussed now.
Roseanna Cunningham said:
"The SNP wants a commission which would fulfil a wide range of functions. It should promote good practice, and public authorities and private bodies would be covered by human rights legislation."—[Official Report, 2 March 2000; Vol 5, c 328, 333 and 318.]
That is very much in line with what we are proposing today.
Patrick Harvie said that the difference between the proposed human rights commission and the ombudsman is that the ombudsman takes up individual cases—that is correct—and the only function of the commission would be to promote awareness. To be fair, however, the commission's functions will go much further than that. It will provide information, guidance and education but it will also have a responsibility to monitor laws, policies and practices and the power to conduct inquiries. Its role goes a good bit further than simply promoting awareness.
I am sure that Jim Wallace will agree that the commission's functions in relation to individual cases are limited, but I hope that he will also reinforce the point that, because of its specific focus on human rights, it is more important for the commission to work closely with the UK commission than with the Scottish public services ombudsman.
I entirely agree, and I think that Patrick Harvie's comment answers one of the points that Pauline McNeill made about whether the human rights commission could take up an individual case. As I understand the bill, it could not do that and I endorse the point that it must range much more widely than the Scottish public services ombudsman does. That is why I think that Margaret Mitchell's point is misguided, particularly if the Scottish public services ombudsman says that she does not want those responsibilities. It is a full-time job, and to add it to her existing functions would overload the ombudsman, who would probably end up doing neither job as well as it could be done.
Margaret Mitchell said that the money could be given to some of the groups that promote human rights. Most of the groups that promote human rights whose representatives I have met are 100 per cent behind the proposals and want the commission. To pray them in aid—or to pray financial support to them in aid—of opposing the proposal is therefore somewhat disingenuous.
Is it Mr Wallace's contention, therefore, that the various voluntary organisations to which I referred would not welcome a substantial share of £1 million to continue their effective work?
I have never yet come across a voluntary organisation that would not accept money, but those organisations believe that what
When the consultation was produced early in 2003, the Parliament's Education, Culture and Sport Committee had proposed the establishment of a children's commissioner and had published a bill to bring that about. At that stage, the question whether children should be excluded from the human rights commission work was considered, but it was accepted that they should not be excluded. However, the consultation paper stated that the human rights commission should
"establish workable practical arrangements with a Commissioner for Children and Young People", and that that process
"should include considering whether there is scope for co-location and sharing resources."
The idea of collocation and sharing resources was consulted upon and indicated as a preferred option at an early stage. At that stage, of course, the UK Government had not taken its proposals for a human rights commission as far as it has done now. If there were to be some collocation, it would make a lot of sense to work alongside and collocate with the new UK body.
It is a misunderstanding or a misreading of the situation on Bill Aitken's part to say that it is only about specific pieces of litigation. I see the matter as going far wider than litigation, to encompass awareness and promotion of the culture. That is one of the most important things about what is proposed, so it goes further than individual cases. It is also wrong to bask in the idea that everything in the garden is rosy, as Margaret Mitchell seemed to suggest. Many members will have seen the report on Scottish public authorities that was published in September this year by Amnesty International in Scotland. It stated:
"Amnesty International agrees with the Justice 1 Committee that a Scottish Commissioner for Human Rights must '... successfully deliver a core promotional and awareness raising role which will embed an awareness of human rights in the provision of services by all public authorities in Scotland.'
However this survey has demonstrated that over half the public authorities surveyed do not understand what compliance with the Human Rights Act means."
There is a gap to be filled. Awareness needs to be raised and education is required, so the idea of a commission—the original consultations were on a commission, rather than a commissioner—is to be welcomed. The Information Commissioner for the UK has highlighted the problems associated with closed-circuit television, and yesterday the person who pioneered DNA sampling for the police raised issues about that. There are numerous human rights issues to consider and we would benefit from having a commission. The
I congratulate the Deputy Minister for Education and Young People on producing what is probably the most heavily populated group at stage 3, with about 150 amendments in it—would that such cerebral fecundity had been an attribute of the Minister for Justice in his intervention on my colleague, Mr Swinney. Of course, it was not.
Yes, "Yes, Minister" and then "Yes, Prime Minister". The first episode had Jim Hacker meeting his civil servants and asking about a freedom of information bill, only to find that the civil servants had prepared for it. Later in the programme, we hear discussion between civil servants and the view is expressed that the bill is dangerous. However, Sir Humphrey is able to assure his boss at the Cabinet Office that they always get the difficult things out in the title of a bill so that they do not have to talk about them in the detail. In many ways, the bill does that too: it says that it is a Scottish Commissioner for Human Rights Bill, but it actually delivers something considerably less.
Some interesting and strange arguments have been deployed today. In rebutting the proposition that was put forward from the Conservative benches, the Deputy Minister for Education and Young People said that it would not be appropriate to extend the powers of the public services ombudsman, while this morning we heard Jeremy Purvis articulating precisely the argument that it was appropriate to extend the powers of the Parliament. A bit of consistency would be relevant.
We need to look more closely at the detail of what the bill says. What can the commission actually do? It can
"(a) consult, (b) act jointly with, (c) co-operate with, or (d) assist".
That is fine, and when we put it in parallel with the public services ombudsman, the inquiries that can be done focus on Scottish public authorities in
The question has been asked whether a minister can be directed by the commissioner. Of course, they cannot.
The real problem with the bill is that it focuses on corporate bodies. It leaves my constituents—and those of every member in the chamber—continuing to be puzzled about why they cannot go to someone's door to seek redress or answer in relation to their rights. The bill does not create such a person. I suspect that if it did, there would be support across the chamber to a much greater extent than there will be at 6 o'clock tonight. The focus on the corporate is unhelpful; the neglect of the individual is not useful.
The bill will certainly do no harm, but it shows little sign that it will do any realistic good that justifies any price tag—whatever it might be—that we put on it.
Some peculiar and contradictory arguments have been made across the chamber. Stewart Stevenson makes a number of good and interesting speeches, but I am not sure that that was one of them, particularly with his rather bizarre allusion to the powers of the Parliament.
Let us be clear about what the human rights commission will do. Bill Aitken set us off on a wrong track by talking about individual remedies. The bill does not propose a commission that will provide individual remedies, as anyone who took the trouble to read the bill would agree. The bill is specifically about improving the promotional arrangements for human rights in Scotland; it also deals with the other aspects that Jim Wallace listed in his excellent speech.
The bill is important because there is a gap that needs to be filled if we are to get better standards of human rights. However, the commission will not solve all the world's problems, as some members have suggested.
Exaggerated statements have been made, notably by Patrick Harvie, on slopping out, which continues to be a matter of great political controversy. John Swinney was right to say that no member would expect any commissioner to give directions to ministers about how to deal with such matters. It is not the intention—nor is it likely—that the commission would have a decisive
I have only four minutes, so I cannot take interventions.
As Patrick Harvie rightly said, there is a range of issues across the gamut of the Parliament's activities on which the commission will be able to adopt a helpful approach to improving standards. The bill focuses on the corporate level. As the various reports that have been done—including that by the Justice 1 Committee—identify, that is where the gap lies. The issue of human rights is complex; expertise is required to deal with it. We cannot always follow it through in all its manifestations without professional input. The new commission will be able to provide such advice and assistance.
John Swinney talked about the need to pause for consideration. No bill in the Parliament's history has had more pause for consideration than the Scottish Commissioner for Human Rights Bill, which began its parliamentary progress in 2000. It has been the subject of two consultations, both of which supported the general principles of the direction of travel and explained clearly what the proposal would mean. It is interesting how many members have suddenly discovered, at a late stage in the Parliament's consideration of the bill, what the various difficulties might be.
Roseanna Cunningham has engaged in some imaginative rewriting of the SNP's position.
No, I cannot.
"I would welcome the establishment of a human rights commission or similar body to act as a point of reference or guidance on a consultancy basis. That is the most effective way of providing advice to public authorities."
It is not misinformation; it is a direct quotation from a parliamentary debate.
Lord James Douglas-Hamilton made similar comments. He said:
"Public authorities in Scotland need a body to which they can refer for expert guidance on action to iron out any difficulties that the incorporation of the European convention on human rights may impose ... it is not inconceivable that public authorities will also have them. That is why we need a Scottish human rights commission".—[Official Report, 2 March 2000; Vol 5, c 307, 350.]
The Executive's amendments are important structurally. The central issue is having a commission rather than a commissioner. That will provide the strategy for making progress on human rights issues. I hope that the Parliament will support our proposal.
Division number 1
For: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Byrne, Ms Rosemary, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Gillon, Karen, Glen, Marlyn, Gordon, Mr Charlie, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Against: Adam, Brian, Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Fabiani, Linda, Fergusson, Alex, Fraser, Murdo, Gibson, Rob, Grahame, Christine, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Morgan, Alasdair, Neil, Alex, Petrie, Dave, Robison, Shona, Scott, John, Stevenson, Stewart, Swinney, Mr John, Tosh, Murray, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra
Division number 2
For: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Byrne, Ms Rosemary, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Gillon, Karen, Glen, Marlyn, Gordon, Mr Charlie, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Against: Adam, Brian, Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Fabiani, Linda, Fergusson, Alex, Fox, Colin, Fraser, Murdo, Gibson, Rob, Grahame, Christine, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Morgan, Alasdair, Neil, Alex, Petrie, Dave, Robison, Shona, Scott, John, Stevenson, Stewart, Swinney, Mr John, Tosh, Murray, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra
"If things have changed in 2006, since a partnership agreement commitment made in 2003, then it makes no sense to press on regardless."
That comment is particularly relevant to the bill. The proposal to establish a combined United Kingdom commission for equality and human rights, with an office in Glasgow, gave us an opportunity to create a one-stop shop to deal with all human rights matters—a solution that would have been more cost effective and, undoubtedly, simpler for the public to understand and access.
In September, the cross-party Finance Committee unanimously recommended that there should be a moratorium on the creation of new commissions. We were prompted by concerns over accountability, overlapping remits and the burgeoning expense of the bodies and felt that, unless it can be demonstrated that there are responsibilities that cannot be picked up by an existing body, no new commission should be established. In this instance, not only could the powers of the existing commission for equality and human rights easily have been extended but there was another alternative. As the Scottish public services ombudsman accepted in evidence to the Justice 1 Committee at stage 1, it would be possible for her office to discharge the responsibilities that were intended for the Scottish human rights commissioner. She accepted that she could undertake the advocacy responsibilities in relation to human rights. She also highlighted concerns about overlaps and duplication should a separate body be created—concerns that the Executive has ignored.
It is not too late for the Scottish Parliamentary Corporate Body to be asked to explore options that will allow us to simplify the delivery of the advocacy of human rights, which is the purpose of the bill. My amendment will enable us to save substantial sums of public money that would otherwise be irresponsibly wasted. Before spelling out how that might be achieved, I would like to highlight some process issues that I believe should give every member of the Parliament cause for concern.
We should point out that ministers have flipped and flopped repeatedly over the issue of whether there should be a commission or a commissioner. We are being faced at stage 3 with 164 Executive amendments—not around 150, as Stewart Stevenson said—which were submitted by the minister only last Friday. Although they are
Has Mr McNulty noticed that many of the amendments that the Government has lodged at stage 3 were defeated at stage 2 in the committee? Does that not render redundant some of the arguments that were made by the minister in the previous debate?
Mr Swinney is absolutely right. I was going to point out that similar amendments were defeated at stage 2, when the minister lost not only key votes on his own amendments but, I would argue, all the arguments on my amendments. Mr Brown repeated his performance today, although I thought that it was marginally better than his performance at stage 2. We should also remind ourselves that that performance was preceded by the Justice 1 Committee's refusal to endorse the principles of the bill at stage 1. There has been a catalogue of problems, which should give us pause for thought.
Many members will not have seen the financial note that was sent out by the minister only on Tuesday, which shows that less than a quarter of the money that we are being asked to authorise today will be spent on functional costs and the work of the commission. The remainder will be required to pay support staff—many of whom would probably not have been required if the task had been given either to the ombudsman or to the commission for equality and human rights—and, of course, the inflated salaries of the members of the commission. It is an ill wind that does not benefit lawyers. Those costs might not be a huge element of the Executive's budget, but they represent a heavy price to the people of Scotland for the stubbornness of the minister and his political colleagues.
The Parliament has no revising chamber, which makes it all the more important that we exercise due diligence in legislating. Since 2003, there have been material changes that mean that the case for a new commission has been invalidated. The Executive has had many chances to change tack. Had the minister acted sensibly, the Parliament would have come out of this with some credit. However, the wise words of Jim Wallace, to which I have referred, have not been heeded by his colleagues. They have insisted on pressing ahead despite the growing recognition of most members that the bill is poor legislation. We have arrived at this point by a process that I believe is as embarrassing for this Parliament as the Dangerous Dogs Act 1991 was for Westminster.
Patrick Harvie managed to compound that embarrassment last night by appearing to claim
In conclusion, I return to another point that Mr Wallace made in his lecture. He referred to a conversation with Donald Dewar in which he suggested that it would have been a good thing if the Executive had lost more votes in the chamber, as the rejection of legislation that was inadequate would have sent a powerful signal. He did not recount Donald's reply, but I hope that members will send the right signal by supporting the amendment in my name.
I move amendment 5.
I am indebted to Des McNulty for the trouble to which he went in reading from the speech that Jim Wallace gave at the University of Glasgow. I had not managed to get round to reading it. It puts into context the criticism that Mr Wallace made of the SNP for reflecting that, after six years of devolution and all the legislation establishing numerous commissioners and ombudsmen, this is the moment for us to say no and to pause. Mr Wallace should perhaps be more consistent in what he says from one day to another about the lessons for political parties to learn.
I support unreservedly what Des McNulty has said in representing the opinions of the Finance Committee today. The committee—I would say unanimously, but for the exception of Mark Ballard—has become increasingly concerned about the spiralling costs of ombudsmen and the congestion and duplication that are entering their areas of responsibility. This is the moment at which Parliament can take the option that Des McNulty has offered us and reflect on the duplication and overlap of duties that have been created. The bill has had a tortuous parliamentary journey because it is not a piece of legislation with which members are comfortable or in which they have confidence.
We need to think again about the bill. I urge members to support amendment 5 to ensure that we deliver good legislation for the people of Scotland.
In voting for the creation of a commission, the Scottish Parliament has ignored the recommendation that was made by the Finance Committee. An alternative and better approach would have involved the Scottish public services ombudsman. The option that we now have simply means that, instead of a vast amount of the money that is available going to help people to fight individual cases or to promote human rights effectively, it will go on salaries, pensions and allowances, which is a shame and a disgrace.
I want to respond to Des McNulty. I categorically did not suggest that not voting for the bill would lead to a dictatorship. Des McNulty's comments were an absurd overreaction to what I said, which was that some arguments that have been deployed against the provisions in the bill were more familiar from countries that are emerging from dictatorship, where Governments have behaved as though no one should hold them to account.
Des McNulty suggested that the Great Britain commission should be given the powers in question, but not even the UK Government supports that position. The Westminster legislation includes a specific prohibition on that commission dealing with devolved issues.
Amendment 5 would, in practice, close the door on the Scottish commission co-locating with the Great Britain commission by delaying its creation. The amendment therefore defeats the arguments that Des McNulty has made relating to cost savings. Let us get on, pass the bill, create the commission, save money by preventing future costly court cases and promote a human rights culture.
I acknowledge the work of the Finance Committee, which has been led by Des McNulty. John Swinney and others have also taken a close interest in governance and accountability issues. I do not want to ignore all the debates that have taken place and all the arguments that have been made because valid points have been made in them. That is recognised by ministers, including the Minister for Finance and Public Service Reform, with whom I have already discussed the matter.
It is important to recognise that our public service reform agenda aims to accelerate the pace of reform and secure improvements right across the public services. Improving accountability is important and it is right and proper that we closely scrutinise the activities of every body with public funds at its disposal. If there are gaps in accountability and governance arrangements, we
If the amendments in the group were agreed to, the Parliament would be required to appoint a person to compile a report on the costs of the commission and the scope for minimising overlaps with other bodies' remits. I think that we have dealt with such issues in other amendments.
Notwithstanding the minister's comments on the Government's public service reform agenda, does she acknowledge that, since devolution, the Government has presided over an expansion in the number of public sector bodies, commissioners and ombudsmen? The Finance Committee has made the entirely reasonable proposition that there should be a moratorium until we decide how effective our governance arrangements are. If the Government supports that proposition, we could progress on a much more unified basis than I suspect we would otherwise do.
I hear what Mr Swinney is saying and, as I said, I recognise the work that the Finance Committee has done, which we need to consider. The bodies and positions that we have created have been created for genuine reasons and with the best interests of the people of Scotland at heart. Members of the Scottish Parliament believed that creating a children's commissioner and a public services ombudsman, for example, represented a way of progressing an agenda that would deal with injustices and inequalities in society. It is acknowledged that, in future, we will have to consider the range of commissioners, ombudsmen and organisations to ensure that we are still getting the best value for money and to ensure that public money is being spent wisely and is getting results.
As a result of concerns that were raised by the Justice 1 Committee, we have made a number of changes to the bill. The bill now requires the commission to consult on a strategic plan and then to publish it. The commission must also submit an annual budget proposal for Parliament's approval. Its annual accounts will be subject to the scrutiny of both the Parliament and the Auditor General for Scotland. It will be required to ensure that it does not unnecessarily duplicate the work of other statutory bodies. We have also lodged amendments that will require the commission to have regard to the desirability of sharing services in order to make the best use of resources.
The minister will be aware of a concern that I expressed at stage 2. In the past, the Parliament has been held hostage and has had no option but to approve further budgets for
The Scottish Parliamentary Corporate Body will be responsible for appointing the commission. If the bill is passed, a clear message will go out from the Parliament that it expects the spirit of the bill, as well as the letter of the bill, to be adhered to. There is cross-party support for the idea that all public money should be spent wisely and only after careful scrutiny. Later, we will come to amendments in the name of Mary Mulligan that will give the corporate body more ability to scrutinise.
Karen Gillon makes a valid point. If a budget has to be approved in advance by the corporate body, it will be incumbent on any organisation that receives public money not to go outwith its budget.
I understand what Des McNulty is trying to achieve with amendments 5 and 100A, but I do not think that they are necessary to ensure full and careful scrutiny. It is unlikely that he will seek to withdraw his amendments, but I will still ask him to do so, based on the assurances that we have offered today and the other amendments that the Executive has lodged. I have also assured him about conversations that have already taken place with the Minister for Finance and Public Service Reform.
As recently as Tuesday, new figures were produced that assumed that salaries and office costs connected to the bill would be paid on a part-year basis. However, the functional expenditure has not been adjusted accordingly. Even at this late stage, with the focus on finance, there is an elementary error—one of a number of errors—in the last-minute calculations of the minister.
Amendment 5 would require the SPCB to trim costs substantially where there are savings to be made, rather than pressing on regardless with a budget that does not stand up to scrutiny. Even if the amendment is defeated, I hope that the SPCB will still trim the costs, because that is its job and its obligation.
Not enough attention has been paid to crucial issues. Those issues relate not only to the human rights commissioner but to every other commissioner, because almost identical problems have arisen with every other commissioner. The Parliament must grow into its responsibilities. In elections, we have been given responsibilities by the people of Scotland. We should not give those responsibilities away lightly but should do so only
The amendments in my name allow us a last-gasp opportunity to ask ourselves whether we have got this right before we drive ahead with the fixed model that the Executive has, politically speaking, continually sought to impose on us. The issue is for the Parliament as a whole to consider. As a responsible Parliament, we cannot have processes that lead to this kind of legislation being introduced in this kind of way, especially when the legislation aims to set up an independent commission that should have the support and endorsement of the whole Parliament. A key element should be that everyone buys into the creation of such bodies.
I do not believe that the way in which the bill has been introduced and the controls that are to be put in place are satisfactory. I say that with great sadness, because I think that we could have done better and I hope that we will do better in future. We will do better by being more fundamental in the way in which we look at these issues.
I will press amendment 5.
Division number 3
For: Adam, Brian, Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Fabiani, Linda, Fergusson, Alex, Fraser, Murdo, Gibson, Rob, Grahame, Christine, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Morgan, Alasdair, Neil, Alex, Petrie, Dave, Robison, Shona, Scott, John, Stevenson, Stewart, Swinney, Mr John, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra
Against: Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Byrne, Ms Rosemary, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Abstentions: Murray, Dr Elaine