Scottish Parliament, 30 June 2011

305 contributions from 71 members. The official report.

Renewable Energy

Tricia Marwick (None, Mid Fife and Glenrothes)

Good morning. The first item of business is a statement by Fergus Ewing on the 2020 route map for renewable energy in Scotland. The minister will take questions at the end of his statement, so there should be no interruptions or interventions.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

Scotland’s renewable energy story can be traced back to the period following the second world war and the vision and determination of Tom Johnston. As a Highlands MSP, I am well aware of the impact of the hydro programme, which began in the 1940s, in transforming the lives of families and the fortunes of the region. In the period since devolution, renewable energy has become linked with the growth of modern Scotland, and the rapid pace of progress has allowed us to be ever more ambitious about the contribution that a wide range of renewable sources can make towards our energy needs.

The Government has introduced a target to meet 100 per cent of Scotland’s electricity demand from renewables by 2020. That is not all that we produce; it is equivalent to all that we consume. We will produce up to twice as much as that. The target reflects scale, strength and value: the scale of our natural resources; the strength of our energy capabilities; and the value that we place on that high-growth sector of our economy. The achievement of that target and our ambitions for renewable heat and sustainable transport will mean that we can meet at least 30 per cent of our overall energy demand from renewables by 2020. With our emissions reduction targets and our aim to reduce consumption by 12 per cent by 2020, it is clear that, as a nation, we are at the forefront of the global shift towards sustainable, low-carbon development.

However, we need to go further and faster to secure our place as a European leader in renewable energy. Therefore, the renewables route map, which is being published today, sets out the key actions that are needed to achieve our new targets and to seize the opportunity for Scotland to research and develop, design, construct and service the technologies that will power the 21st century.

The headlines from the route map speak for themselves. We have a challenging electricity target and actions to meet it, but it is not just about electricity. Our route map sets out progress towards the target to meet 11 per cent of heat demand from renewables by 2020 and our commitment to ensure that impacts on existing biomass users are mitigated as demand continues to grow, including through our forthcoming review of support for large-scale electricity-only biomass under the renewables obligation (Scotland). We do not believe that large-scale biomass electricity-only plants, which require the transglobal shipment of wood, are good for the planet or the economy.

We have made a commitment to set up an expert commission on the development of district heating, and we have set a new target to meet 30 per cent of overall energy demand from renewables by 2020 and a new target of 500MW community and locally owned renewable energy by 2020. That is a transformational opportunity for the local ownership of energy that is set within our wider aspiration to support community asset ownership. To help to meet that challenge, we undertake to work with investors to establish a new green equity fund for community renewables. We will follow up our securing the benefits consultation to provide greater clarity for community benefits from commercial schemes, and we will enhance our commitment to small-scale and rural renewables through the development of a microgeneration strategy and an agri-renewables strategy.

We do not underestimate the challenges. In particular, there is a need to ensure that the United Kingdom electricity market continues to provide the right level of incentives. We are working constructively with the UK Government to highlight areas in which we have a legitimate devolved role in setting the support framework for developing low-carbon generation, especially protection of our role in determining financial support for renewables and, in future, for carbon capture and storage.

We need to continue to work to secure adequate connection with European Union neighbours to ensure that UK demand is not a limiting factor on the ability of Scottish generators to dispatch and export their electricity.

Good progress has been made on renewables employment opportunities. The picture is fast moving, but the latest projections from Skills Development Scotland are for up to 40,000 new jobs in the sector by 2020. I am sure that we all recognise the potential of renewables for the Scottish economy.

We must address the range of technology and market failures that may act as a barrier to deployment and tackle the many infrastructure, skills and supply chain barriers to deployment. We need to ensure that Scotland secures adequate economic and social benefit from renewable energy deployment. Lastly, we need to secure the funding required for all those ambitious plans.

The route map goes further in scope and ambition than any previous strategy for renewable energy in Scotland. It sets out a comprehensive path towards achieving our ambition to be the green energy powerhouse of Europe. Taken alongside our electricity generation policy statement, which is currently being updated, the route map sets the course for a rapid expansion in renewables capacity, complemented by greater energy efficiency, advances in energy storage and the development of carbon capture and storage technologies.

This Government will continue to listen and to make the most of the expertise of all parties in Parliament, including the Economy, Energy and Tourism Committee, to ensure that we get our energy policies right for Scotland.

However, we see no place for new nuclear power, because it is an expensive technology of the last century that offers Scotland no competitive advantage. We welcome the recent announcement by the German Government of a decisive move to phase out nuclear by 2022, alongside a huge expansion of its already significant renewables capacity. That announcement adds to the growing international realisation of the difficulties associated with nuclear power.

Renewable energy provides perhaps Scotland’s greatest economic and environmental opportunity this century. Our new route map sets out what we need to do collectively to write the next chapter in Scotland’s renewable energy story. I hope that Parliament will unite behind it to ensure that we grasp the opportunity in front of us.

Richard Baker (Labour, North East Scotland)

I thank the minister for the advance copy of his statement and welcome the scale of the Scottish Government’s ambition for our country to be a world leader in renewables.

Having set that ambitious target, ministers face the key question of how they will achieve it and how they will show in this session of Parliament that they are on course to deliver on the 2020 pledge on renewables generation, which changed rapidly from a target of meeting 80 per cent of demand to one of meeting 100 per cent of demand.

The road map, too, is welcome, but the projections for renewable electricity generation show the steep increase required in the years ahead to meet the target, particularly between 2015 and 2020.

How often will the minister provide updates on the progress that is being made? What interim targets will he set in this session to show that the Scottish Government is on course for the overall 2020 target?

The road map refers to the £70 million national renewables infrastructure fund, which is welcome, but it is likely to be a fraction of the investment required. How will the Scottish Government ensure that improvements in the infrastructure of our ports and other facilities—improvements that are necessary to realise the targets—are delivered?

We still require more detail from ministers on how they will ensure that Scotland’s economy benefits from increasing manufacturing in the renewables sector. Will the minister bring further plans on that to Parliament, as it is vital if we are to reap all the rewards that we should reap from Scotland’s natural advantages in what is a vital industry for the future?

Fergus Ewing (Scottish National Party, Inverness and Nairn)

I thank Richard Baker for his questions and the tone with which he put them. I commend his colleague Sarah Boyack who, when she was a minister, set targets that at the time appeared ambitious but which were all achieved, as we discussed yesterday in a briefing session for members. Equally, although our targets are ambitious, we believe that they are achievable. In the foreword to the route map, I point out that more than a quarter of Scotland’s electricity needs already come from renewables. I also make the important point, which is perhaps not widely appreciated, that renewables projects and operations that are under construction or have consent will provide almost 60 per cent of our electricity needs. So, although there is a mountain still to be climbed, we are a good way up that mountain.

Richard Baker asked how frequently we will report back to Parliament. We will report back to Parliament as frequently as is necessary and certainly when there are major changes. Timing in the next six to 12 months will be absolutely crucial. There will be negotiations and discussions with the United Kingdom Government about electricity market reform. Project transmit and the unfair charges from which Scotland currently suffers and the issues surrounding operation and investment will all be considered in the next six months. In fact, we might be seeing the biggest set of changes in the energy sector since the electricity privatisation of 1989. The next six to 12 months will be absolutely critical. We are working with the UK Government to get the best possible deal for Scotland.

The member’s final question concerned the industrialisation of Scotland and where the jobs and investment will come from. Plainly, we believe that the investment should come from several sources. We are negotiating for the return of the fossil fuel levy—currently at £200 million—from the Westminster Government, which has already drawn down some of England’s share of the levy. We are working with many companies, including Mitsubishi, Gamesa and Doosan, which are world-leading companies in the manufacture of turbines, and negotiating with them to try to persuade them to invest heavily in our ports. We will use the £70 million fund towards that aim.

I hope that those rather long comments answer all of Mr Baker’s questions.

Jackson Carlaw (Conservative, West Scotland)

I, too, thank the minister for providing an advance copy of his statement. On behalf of the Scottish Conservatives, I admire the Government’s ambition. Indeed, for the members of his party congress who are with us this morning, I say that the Scottish Conservatives support, applaud, embrace and will ring the bells for the Government’s ambition in this regard. We will do all that we can to support the Government, business and industry in realising Scotland’s natural renewables potential.

Although the minister’s statement was full of the poetry of ambition, the targets are tough, the timeline is fixed and the actions are conditional. I hear what the minister said about new nuclear capacity, which was rather a slap in the face for President Obama and his Administration, which has invested $500 billion in new thorium nuclear capacity. To paraphrase the minister, that is new technology for this century that offers the world, and particularly the most disadvantaged countries, a tangible competitive advantage.

Does the minister rule out completely the lifetime extension of Scotland’s existing nuclear capacity and, in particular, Hunterston B, during this session of Parliament?

Fergus Ewing (Scottish National Party, Inverness and Nairn)

Jackson Carlaw accuses me of being poetic, which is not an accusation that I have hitherto faced. He goes on to say that our targets are ambitious and, yes, they are. I think that I recognise his snatchets from the initial renewable energy debate in this session of Parliament. The targets are ambitious, but they are not quite as ambitious as those of another party in its 2011 manifesto, namely the Welsh Conservatives. That manifesto states that the Welsh Conservatives wish to “Generate More Renewable Energy” and goes on to say that they will

“Promote a diverse range of renewable energy sources—including solar, wind, marine, small scale biomass, and microgeneration technologies with an aim to produce 100% of our energy needs from renewable sources by 2025.”

I commend the ambition of the Welsh Conservatives; and I commend it in particular to the Scottish Conservatives.

I was asked about the extension of the life of nuclear power stations—an issue that we accept must be considered rationally. We are perfectly open to an extension of the life of the existing nuclear power stations, providing that the case is justified on economic and environmental grounds. That case exists, and it exists because of the need for security of supply. We have always acknowledged that, although we are clearly opposed to the building of new nuclear power stations. I hope that my answer has given some assurance to Jackson Carlaw.

Adam Ingram (Scottish National Party, Carrick, Cumnock and Doon Valley)

Will the minister confirm that the exciting renewables revolution that he has outlined this morning will translate into a massive boost for job creation? When does he expect significant employment opportunities to come on stream? Will my constituents in south and east Ayrshire have as much access to those opportunities as people anywhere else in the country?

Fergus Ewing (Scottish National Party, Inverness and Nairn)

As I said in my statement, the prediction of the Office of the Gas and Electricity Markets is for 40,000 more jobs in the renewable energy field. In the low-carbon sector, the target is 130,000. Of course, low carbon covers more than renewable energy; it also covers environmental jobs, and jobs related to waste and the efficient use of energy. That is all to be welcomed.

We believe that there is an environmental case for renewable energy—which can also answer the question of the volatility of gas prices. As has been debated in this Parliament, one utility company has made substantial increases.

We also believe that renewable energy will transform job opportunities in the Scottish economy. I have already mentioned three of the largest companies in the world in the manufacture of offshore wind turbines, and they are all interested in coming to Scotland. One reason for that is precisely our setting of ambitious targets. That has aroused, stimulated and secured the interest of the leading companies in the world, and that must be a good thing.

Rhoda Grant (Labour, Highlands and Islands)

I want to ask the minister about some of the targets in the 2020 document. The Scottish Government proposes 375 new electric vehicle charging points; we in the Labour Party have proposed 10,000 charging points by 2015. Will the Government review its commitment, bearing in mind that 20 per cent of carbon emissions come from transport?

The Government’s target for renewable heat is also reasonably modest, at 11 per cent by 2020. Current output is ahead of the Government’s trajectory, so will the Government increase that target too?

Fergus Ewing (Scottish National Party, Inverness and Nairn)

We certainly wish to achieve the greatest possible success in transport and we are happy to work with the Labour Party on that. I am well aware of the Labour Party’s ambitious commitments and I would like to continue a dialogue on how, in practice, we can exceed our hopes and aspirations on all those fronts.

I hope that we will make progress with the announcements that I have made today. For example, I would like to develop the strategies on microgeneration and agri-renewables and to get them in place before the end of the year, if possible. I am willing to work with all members to secure that objective.

Nigel Don (Scottish National Party, Angus North and Mearns)

Will the minister expand on his comments on the green equity fund? I think that he connected it with community and locally owned facilities.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

We want to encourage community renewables schemes, which is why we have set the target of 500MW. At the moment, we are in the region of 180MW—so, again, we have set an ambitious target.

One of the ways in which we think it would be sensible to stimulate such projects is by having a green equity fund that would focus on the community side. We debated the green investment bank in Marco Biagi’s members’ business debate some weeks ago and focused on large-scale investment. The purpose of the green equity fund is to fill a gap for small-scale community schemes. Members might ask: how much will this fund be? I thought that somebody would have asked me that, but since no one has, I will answer the question anyway. We have not yet set the fund total because we want to see how successful we are in securing the return of the £200 million fossil fuel levy, which, thus far, the Chancellor of the Exchequer and the Chief Secretary to the Treasury have been unwilling to return to us. We hope that that will change, and when it does, we hope that the green equity fund will include a reasonable proportion of the levy to develop community schemes.

Sarah Boyack (Labour, Lothian)

The minister’s targets are set out in the route map. Does he accept that fuel poverty now affects 40 per cent of Scottish households? Will he use his leadership to ensure that households benefit from affordable local and community renewables? Will he commit to considering the Birmingham City Council model, which is delivering energy bill reduction, a massive increase in local renewables and energy efficiency all at the same time? There will be a big payback for that council over the next 25 years using the feed-in tariff. In our manifesto, we committed ourselves to supplying 10,000 houses with renewable energy over the next four years. Will the minister commit to match that or go further than us? I know that the Government has a target to meet by Christmas. The Birmingham model already exists and works, so we are keen to accelerate that target.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

There is a consonance of objectives between the Government and the views that Sarah Boyack has expressed, as I have already tried to make clear. Since the introduction of the fuel poverty programme, we have seen, through the energy assistance package, more than 150,000 people on low incomes reduce their energy bills and keep their homes warm now and for years to come. It is plain, however, that the recent increases in electricity and gas prices will hit the most vulnerable hardest. That is an area in which I expect to work with all members to see what can be done practically to help those families.

Liam McArthur (Liberal Democrat, Orkney Islands)

I thank the minister for the advance copy of his statement and welcome both the route map and the content of his statement this morning. I welcome particularly the reference in the route map to microrenewables and storage.

The minister talked about an aspiration to support community asset ownership. The document refers to the Forestry Commission in Scotland leading the way on the public estate. The minister will be aware of concerns about the way in which the Forestry Commission has gone about harnessing the assets at its disposal and that it has not always been to the community’s benefit. Perhaps the minister will let the chamber know where lessons have been learned in that regard.

Following the constructive tone of his response to Rhoda Grant, will the minister advise the chamber when we might see the low-carbon vehicle action plan, which would go some way towards addressing some of the concerns that Rhoda Grant raised?

Fergus Ewing (Scottish National Party, Inverness and Nairn)

In response to the member’s first question, I am aware of the issue, which was raised by Sarah Boyack in the renewable energy debate when she alluded to her concern about the Forestry Commission tendering process not availing communities of opportunities in that regard. Given that we have made a commitment this morning to introduce a microgeneration strategy and that we want to develop community initiatives as far as possible by the end of this year, I have decided that it would be reasonable to engage fully and directly with the Forestry Commission to see what lessons we can learn for the future.

In response to the second question about low-carbon vehicles, we want to see what progress can be made as quickly as possible. Since Liam McArthur has raised the matter today, I will raise it with the Minister for Housing and Transport, Keith Brown, and the Minister for Environment and Climate Change, Stewart Stevenson, so that we can take it forward. We will get back to Liam McArthur and give him a specific answer on timing if we can.

Rob Gibson (Scottish National Party, Caithness, Sutherland and Ross)

I hope that the minister can clarify with urgency permitted development rights and the guidelines on the noise window for wind turbines, so that local planners, who have held up numerous consents in my constituency for over nine months, can adopt a can-do approach to small-scale and community wind projects.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

I am aware that this problem has been reported in various parts of the country. Parliament supported the introduction of permitted development rights for domestic microgeneration equipment in 2009-10 and for non-domestic equipment this March; nevertheless, inconsistencies in local planning decisions have been reported to us. Planning decisions are made locally, but we have produced guidance on these matters and will be looking closely at the situation to see whether we can do anything more, especially on the consistent treatment of noise. The issue has been reported to us and we look forward to working with Rob Gibson and other members who are rightly concerned about it.

Claudia Beamish (Labour, South Scotland)

I welcome the minister’s statement. The route map states that microenergy schemes are most cost-effective and effective at reducing carbon emissions and energy bills only when combined with energy efficiency measures such as insulation. How does the minister propose to ensure that that vital link is maintained, including for those on low incomes? Will he also be more specific about the microgeneration targets? After all, the industry needs certainty if it is to grow.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

We certainly wish to encourage microgeneration and to that end we will introduce and work with all members on the strategy.

On energy efficiency, which every member has mentioned, plainly we want to encourage all means by which people might use less energy. At a recent housing expo in my constituency, pioneering design in the efficient heating of housing was demonstrated across a whole range of renewable resources, including solar and geothermal energy. I wish to avoid stating the obvious, but the benefit of renewables is that they are renewable. There will be no volatility in the price of the sun, the waves or the wind. The benefits are clear and we will do all that we can to drive forward measures to reduce energy consumption, with a particular focus on the most vulnerable.

Marco Biagi (Scottish National Party, Edinburgh Central)

Will the minister outline in more detail the steps that he intends to take to secure community benefits from renewable projects, in particular those accruing to the community of the whole nation from the tremendous potential of the North Sea offshore resource?

Fergus Ewing (Scottish National Party, Inverness and Nairn)

Section 3.1 of the route map, which I looked at earlier this morning, spells out the massive opportunity for Scotland’s needs to be powered by offshore wind many times over. I see Jackson Carlaw almost nodding in agreement.

We wish to bring greater clarity to the arrangements for community benefit from onshore wind. Doing so would help to reduce some of the difficulties and tensions that can arise from time to time over applications for onshore wind farms.

Patrick Harvie (Green, Glasgow)

I, too, thank the minister for an advance copy of the route map. However, I encourage him to go a little further on the ownership of renewables. I welcome his comments about the forest estate and I hope that they imply that, instead of forest land simply being handed over to big energy companies, communities bidding for it will be prioritised in the process.

Moreover, why is it so hard to find a mention of Scottish Water? Just last year, we heard commitments from the First Minister—

Patrick Harvie (Green, Glasgow)

—on a publicly owned energy company becoming one of the biggest renewable energy generators in the country. Is the Scottish Government still committed to that and, if so, why is it so hard to find in the route map?

Fergus Ewing (Scottish National Party, Inverness and Nairn)

I think that the route map that we have produced is broadly welcomed by Patrick Harvie—at least I hope so. We will ensure that all bodies in Scotland, including Scottish Water, are playing their full part towards achieving the objectives that the route map sets out.

We have set an ambitious new target for community renewables this morning, and that is good. I get the sense that that is broadly welcomed. We all want more communities to benefit. Many schemes in the Highlands and Islands have benefited many communities greatly. In Shetland, for example, energy costs have been reduced, compared with the cost of fossil fuels, through a district heating scheme.

I am sure that Patrick Harvie and I will work shoulder to shoulder in the years ahead on all those matters.

Hanzala Malik (Labour, Glasgow)

The minister will not need reminding that we are a nation of inventors. The proposed new community schemes are excellent and very welcome, but I hope that we will have provision to protect any new schemes that come forward, particularly when it comes to international patenting and so on. Community groups will not have the appropriate resource to back up any inventions that they come up with.

Secondly, the reporting back to the Parliament needs to be more focused. The challenge for us as a nation is huge, and we should not just say that there will be reports back as and when we need updated; I think we should have a regular arrangement, so that we can focus on where we are going and monitor and benchmark our success.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

Mr Malik is absolutely right to praise the achievements of Scottish inventors; indeed, some people argue that Scotland invented the modern world.

Through the work that they do, our universities, including the University of Strathclyde, are leading the way—Jim McDonald briefed members on these matters yesterday. That is why Gamesa has already committed to research jobs in this country—precisely because of the intellectual know-how, capability and leadership in the field of research into renewable energy. That is very much to be welcomed.

We will certainly update Parliament as regularly as appropriate, and my door is always open.

Scotland Bill (Supreme Court)

Tricia Marwick (None, Mid Fife and Glenrothes)

The next item of business is a debate on motion S4M-00447, in the name of Kenny MacAskill, on the Scotland Bill—the role of the Supreme Court in Scots criminal law.

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

I pay tribute to Lord Rodger of Earlsferry, who sadly died earlier this week, following a short illness. I am sure that members will wish to join me in acknowledging the outstanding contribution that he made to public life in Scotland over the course of a distinguished career, including as a judge and as Lord Advocate. The First Minister noted on Monday that Lord Rodger was held in the highest regard by all those who worked with him in public service. That is an assessment that I and, I am sure, many other members share.

I turn now to the subject of today’s debate. Scotland has a unique legal tradition, which is many centuries old and is proudly independent. The existence of a distinctive Scots law predates the treaty of union by centuries. The old Scots Parliament was making laws for Scotland, and those laws were being applied in Scotland’s courts, long before 1707. The distinctiveness of Scots law has been at the heart of our national identity, and it is something that we have a duty to preserve and uphold. I know that that view is widely held—it is not a party-political point. It is critically important that we maintain the identity and the substance of Scots law—they are the foundations on which our legal institutions stand, and they are part of our civic democracy. That identity and independence was constitutionally guaranteed by the treaty of union and it has been cherished and preserved for centuries since.

Until 1998, the High Court of Justiciary was at the apex of the Scottish criminal justice system. There was never any real intention that devolution would or should change that situation. The mechanisms that were built into the Scotland Act 1998 to deal with devolution issues were narrowly drawn and limited in intent, but in practice we have seen a steady encroachment since 1999. That has meant the emergence of a novel jurisdiction under which the United Kingdom Supreme Court, in which Scottish judges are in the minority, has come to exercise increasing influence over Scots law.

As Ian Smart, a former president of the Law Society of Scotland, has said,

“There is disquiet right across the legal profession that we have drifted into a situation where there is a second layer of appeal … The Court of Criminal Appeal is the final appeal court in Scottish criminal procedure. … Nobody intended that routine cases should be dealt with in the Supreme Court.”

This is not about apportioning blame but about recognising the situation that has arisen.

James Kelly (Labour, Rutherglen)

Does the cabinet secretary dissent from the view expressed by the Law Society that only 23 cases have gone to the Supreme Court in the past 14 years so the practice is not as frequent as he is trying to make out?

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

I do not think that I mentioned frequency. What I said was that cases have gone to the Supreme Court and those cases have been of fundamental significance, as they include the Cadder case, which Mr Kelly and everyone else in the chamber knows. Indeed, 14,000 devolution minutes have been marked. There is significant input and the consequences and effects are manifest and radical.

As the Court of Session judges noted in 2008 in responding to the Calman commission, the practical consequences of encroachment have included delays to trials and appeals and additional expense for all concerned. Indeed, Mr Kelly might well recall that the First Minister commented in the chamber that printing costs in one instance were in the region of £80,000 or £90,000 simply for the Crown.

I am therefore in no doubt that there is a problem here that needs to be addressed. The evidence is overwhelming.

Let me be clear: this is not a debate about our commitment to human rights. Scotland’s belief in the fundamental values that are reflected in the European convention on human rights is not in any doubt. Notwithstanding some of the comments that have been bandied about in the chamber, I am not aware of anyone who is elected or who sits in this chamber who does not support human rights being applied here in Scotland.

Furthermore, this debate is not fuelled by our well-known desire for constitutional change because, although that is part of the ethos of the party that I represent, we equally have a duty to ensure that we preserve good order in our court systems.

Johann Lamont (Labour, Glasgow Pollok)

Given that the cabinet secretary said that we have a commitment to human rights, does he agree that having those rights enforced through the Supreme Court is more accessible than having to wait to be heard at Strasbourg?

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

We are trying to ensure that we get the appropriate balance. Strasbourg is the place where these matters are ultimately dealt with. I prefaced my comments by saying that I believe that everyone has accepted that the ultimate court of criminal appeal in Scotland should be the High Court of Justiciary. As I was going to say in relation to Lord McCluskey’s review, it is about how we strike the right balance between having the ECHR and the Strasbourg court, which apply both north and south of the border, and preserving the integrity of our centuries-old legal system, which has a duty to apply the criminal law.

What we are discussing today is the self-evident fact that the existing devolution settlement requires structures that work and which avoid unforeseen and unintended negative impacts. The simple fact is that there are significant problems with those existing structures. That is why we have sought to promote public debate and why we have asked some of Scotland’s most eminent legal minds to examine the current difficulties and to provide their expert advice.

We have had passionate and sometimes outspoken public debate in recent weeks, but it is now time to move that debate on to a considered examination of the options that are available. I am, therefore, pleased to welcome the first report prepared by the independent review group led by Lord McCluskey. I welcome him and his colleague Sheriff Charles Stoddart to the chamber. That eminent group draws on the vast experience and in-depth knowledge not only of Lord McCluskey but of Sir Gerald Gordon, Sheriff Charles Stoddart and Professor Neil Walker. It has been asked to work independently of Government, without fear or favour.

What the group has given us in its first report is objective and measured, and has been informed by an unparalleled level of expertise. The report provides a sound and sensible basis for debate.

James Kelly (Labour, Rutherglen)

I do not doubt what the cabinet secretary says about the experts on the group, but he tells us that the interim report has been informed by an “unparalleled level of expertise”. How can he say that when the group could not conduct any interviews because of the short timescale in which it had to produce its report? [Interruption.]

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

We should remember that we are talking about an interim report and that a final report will be produced later in the autumn. We should also remember that Lord McCluskey and his review group had the opportunity to look at representations that were made to the Advocate General for Scotland’s review group by the Law Society of Scotland and others, and that they have made it clear that they will be happy to take evidence subsequently. Therefore, it seems to me that an appropriate level of information was out in the public domain and was accessed by the review group. Many members believe that there comes a time when we need to cease having consultations and start providing solutions. That applies to other developments that are under way, but I certainly think that the interim report is based on sound evidence. It will be subject to further debate and discussion, which is the purpose of this morning’s debate.

The group is clear in its view that Scots criminal proceedings have been “unexpectedly” brought under review in the Supreme Court. As the group observes in its report, because of the lack of parity of appeal mechanisms, the High Court of Justiciary

“has been placed under a broader and, in the light of developing practice since 1998, a more intrusive jurisdiction than has been created for the rest of the UK in relation to … human rights issues in criminal cases.”

It does not recommend ending the current jurisdiction of the Supreme Court. In providing that advice, the group recognises the “constitutional realities” of the current settlement, which I accept. We are where we are, even if it is not where we seek to get to ultimately.

However, it is crystal clear that what emerges about existing arrangements is that the statutory basis in the Scotland Act 1998 is unsatisfactory; that the position of the High Court of Justiciary is anomalous and significantly weaker than that of equivalent courts elsewhere in the UK; that the proper role of the Supreme Court—if it is to continue to have a role in Scottish criminal cases—lies in defining and clarifying constitutional and human rights law; and that it is for the High Court to apply that law in practice, in the context of the individual cases that come before it. There is an urgent need to resolve those problems.

The review group has already identified some potential solutions, including further amendments to the Scotland Bill, which now require more detailed development. It is clear from the report that the High Court should remain at the apex of the Scottish criminal justice system. There is a clear distinction between the role of the High Court and that of the Supreme Court. It is for the Supreme Court to rule on the most challenging and complex human rights questions, subject to the overarching jurisdiction of the European Court of Human Rights in Strasbourg, but it is the proper function of the High Court of Justiciary to apply the law of Scotland in accordance with rulings by the other two courts.

Those are distinct and separate functions. The jurisdiction of the High Court is different from that of the Supreme Court or of the court in Strasbourg. None of them is in competition with the others. In fact, the work of all three courts should complement, not conflict. There is no question but that the High Court can be relied on to apply the law consistently with the determinations of the Supreme Court. It is every bit as capable of applying the law in accordance with the conclusions reached by the European Court of Human Rights.

The challenge that we face lies in ensuring that the existing structures deliver the right results for criminal justice in Scotland and that they do not result in the unintended erosion of the role of the High Court or the distinctive character of Scots law. The suggestions by the review group in this first report help us to address the challenge, but they are not final conclusions.

As I said earlier, I welcome Lord McCluskey’s undertaking to explore in further detail the issues that he has identified. Those are issues that will need to be satisfactorily addressed by the UK Government in the Scotland Bill when it reaches the House of Lords in the autumn. As Lord McCluskey highlights, the changes under debate engage reserved and devolved interests. For our part, we have already made it clear that there are elements of the Advocate General’s existing proposals that we welcome and support. However, the final shape of the bill must properly reflect the concerns—and the solutions—identified by Lord McCluskey. Those provisions will need to gain the confidence and support of this Parliament if they are to be credible and successful.

Lord McCluskey’s group will continue its work over the summer. I look forward to the outcome of that work and to a further report from the group in due course. I also look forward to the opportunity for constructive dialogue with the UK Government. With that in mind, I believe that we should all be able to work together to take forward the review group’s recommendations and to see a package of proposals in the Scotland Bill that we can all support.

I move,

That the Parliament welcomes the interim report of the independent specialist group led by Lord McCluskey; believes that it provides a constructive and well-informed basis for further detailed consideration of the role of the UK Supreme Court in Scots criminal law, and looks forward to receiving the further advice and final report of the group in autumn 2011.

Johann Lamont (Labour, Glasgow Pollok)

I associate my party with the cabinet secretary’s comments on the sad death of Lord Rodger and recognise the significant contribution that he made to Scottish public life. We send our condolences to his family at this sad time.

I am happy to contribute to the debate. The role of the Supreme Court is a complex one. The interim report of the review by Lord McCluskey and his colleagues is an interesting and valuable contribution to our understanding of the issues involved. I do not pretend to be a legal expert on those issues, and I recognise that those with expertise in and experience of our judicial system and Scots law are engaged in significant debate about the role of the Supreme Court. It is evident that, in the next period, as Lord McCluskey moves towards a fuller report, there will be disagreement and debate about the group’s conclusions. Perhaps it is unfortunate that the interim report has been constrained in its access to information simply by a timetable imposed by the Scottish Government.

The issue of the need for leave to appeal to the Supreme Court requires further consideration, but we should be alive to the fact that that change is not universally accepted. There are those who would not agree that this is an issue of parity. However, it will be important to reflect on the effect and impact of such a change and to understand what its consequences might be.

What we should be able to agree on today is that this report by the First Minister’s group, led by Lord McCluskey, is a rebuttal of the stance of the First Minister and the Cabinet Secretary for Justice. If members recall, the First Minister and the cabinet secretary argued that there should be no role for the Supreme Court in Scotland’s judicial system—not when we get independence but now.

There was an argument that the Supreme Court was somehow predatory upon the Scottish courts, that the Supreme Court routinely sought to interfere and that Scottish judges, sitting in London, were not able or competent enough to address issues of Scottish law. Indeed, it was argued that the English judges, no matter how learned they were, were not capable of understanding the Scottish legal system, and that their understanding was limited to excursions to the Edinburgh fringe. There was an argument that the Scots would be better served by access to Strasbourg than to London, even if that access meant many more years of uncertainty. The review group clearly rejects that position and the cabinet secretary’s new focus on appeals is the inevitable fallback for someone whose argument has been roundly refuted.

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

Does the member think that Cadder-type situations, which require the kind of emergency legislation that we had to introduce, are beneficial either to Scots law or to good order in this country?

Johann Lamont (Labour, Glasgow Pollok)

Some have argued that if the Scottish judicial system had been more alive to such issues earlier and had responded at a certain point, emergency legislation would not have been required. Nevertheless, I am not sure whether it is appropriate to judge the quality of courts on the consequences of individual decisions, which is precisely the point that is being made in this debate.

Of course certain interesting issues have to be resolved, but that will never happen through foghorn diplomacy. Given his own intemperate comments, the cabinet secretary’s claim that he was promoting public debate somewhat stretches credulity. He must acknowledge that his approach to this complex issue has been entirely inappropriate. The language that he and the First Minister have used has demeaned their office, insulted individuals’ integrity and, worryingly, introduced the MacAskill principle of government, which is that he who pays the piper calls the tune. In that respect, I am interested to hear whether the same principle applies to, say, voluntary sector and other organisations that might wish to comment.

The main reason why the approach taken was problematic was that it was counterproductive and obscured the real debate. Of course, this debate has been driven not by judicial dilemma but by the simple politics of a nationalist Scottish Government, whose innate nationalism defends all things Scottish on the basis of their being Scottish and is hostile to anything south of the border. The problem with the Supreme Court is not what it does but where it sits. Such a conservative defence of the Scottish legal system is odd, given Scots law’s historically strong willingness to learn from other jurisdictions and approaches. Indeed, Mr MacAskill himself has introduced provisions from the English legal system into the Scottish system and, even as we speak, Lord Carloway is considering issues of fundamental historic significance to Scots law such as the question of corroboration. Given the challenge to providing victims of crime with access to justice, we must never allow a complacent view that resists change in a changing world.

Indeed, that is where we must focus: the role of the Supreme Court and, more broadly, the legal system itself in protecting victims and ensuring fairness. At the height of the First Minister’s excesses in railing against the Supreme Court, his position shifted significantly from an attack on a perceived wounding of the Scottish legal system by an English court to what seemed to be an attack on the way in which human rights legislation protected and gave succour to perpetrators of crime, not their victims. That issue is important for all of us who want human rights to be protected in our courts and communities. We still have to address the hostility that is felt by many people in Scotland and beyond towards a human rights agenda that compensates prisoners for slopping out while appearing to offer no protection to families under the cosh from aggressive neighbours and unresponsive public services that do not address their needs. We have to rehabilitate the case for human rights and ensure that it protects the victims of crime instead of being used as an alibi for agencies that have failed to protect them. In that regard, we on this side of the chamber are more than happy to engage in a debate on rights and responsibilities and various balances and understandings in relation to human rights legislation. We must talk about human rights for those in care homes, our schools or wherever and about the balance of rights and responsibilities in our communities.

We regret the tone in which this debate began and the fact that it was driven by a political agenda, not by an agenda concerned with the legal system. However, we acknowledge the significant contribution made by Lord McCluskey’s report and the challenge that it presents and, indeed, welcome Lord McCluskey’s comment in the report that the debate cannot be confined to the legal profession. Although it should be informed by the profession and although we should recognise that people with great expertise in the field hold a range of views on the matter, there has to be a buy-in from far beyond the legal profession. After all, if there is a gulf in understanding between the views of the legal profession, the courts and judges, and the experience of the people in our communities, we are all diminished. In that respect, the human rights issues are significant.

We would therefore welcome further reporting from Lord McCluskey and engagement with the UK Government, particularly with the Advocate General. We urge the Scottish Government to engage in quiet diplomacy, rather than the foghorn diplomacy of the past. That did not inform or shape the debate; rather, it prevented the debate from proceeding constructively. We are open to an interrogation of the present system and to change that protects access to justice. Above all, we urge the cabinet secretary to debate the issues of justice in terms of justice and not as a convenient hook on which to attach the Government’s political mission. I look forward to the debate.

I move amendment S4M-00447.2, to leave out from “believes” to end and insert:

“further welcomes the group’s reaffirmation of the continuing role of the UK Supreme Court in constitutional and human rights issues affecting Scotland; recognises that the interim report and the work of the expert group set up by Lord Wallace raise some important questions in relation to devolution issues; regrets the inappropriate language of the First Minister and the Cabinet Secretary for Justice with regard to highly respected judges of the UK Supreme Court and the threat to withdraw funding from the court, and believes that wider consultation and discussion on proposals for change are vital in order to allow proper, well-informed, thorough and detailed consideration of all the relevant issues and implications of reform.”

John Lamont (Conservative, Ettrick, Roxburgh and Berwickshire)

I am pleased that we have reached the stage of a parliamentary debate on the important issue of the Supreme Court and how it relates to Scots law. Although the workings of the Supreme Court are beyond the legislative competence of the Scottish Parliament, the court’s decisions have had a bearing on high-profile legal cases in Scotland, so it is important that we have a proper debate on the issue. That much I warmly welcome. However, the issue has undoubtedly become marred in recent weeks by much tub thumping and name calling on the part of the Scottish Government, which has done little to foster the mature debate that we need on such important issues. Whatever the merits of the argument, encouraging incendiary headlines in our newspapers is not the way to conduct a meaningful and rational discussion on an issue of such importance. The Government ought to argue its case on the basis of facts rather than personal slurs on senior Scottish judges.

We in the Conservatives pay tribute to the talent and service of Lord Rodger, who died earlier this week. Along with his colleague Lord Hope, Lord Rodger served as one of two Scots on the UK Supreme Court. From the tributes that have been paid to him this week, it is clear that Lord Rodger brought a substantial talent to his role. His death is a great loss to the Scots legal profession. In the context of today’s debate, he brought a great deal of knowledge of the Scots legal system to the Supreme Court.

We are indebted to Lord McCluskey and his team for their interim report, not least because of the timing demands that the Scottish Government placed on them. They have produced a clear and concise summary of the key issues in a short space of time. However, it is not clear what the Government’s rush is to have a debate on the issue. Of course it is important, but why not wait for the final report, by which time the review group will have had time to engage properly with experts and stakeholders in the field? Holding a debate when we have only an interim report suggests that things are being rushed for some reason.

No one denies that there are issues with how the Supreme Court engages with Scots law in determining points that relate to human rights. After all, those issues are hugely complicated, given that they deal with the legal relationship between the High Court, the Supreme Court and the European Court of Human Rights in Strasbourg. That relationship between the workings of a Scottish court, a UK court and a European court demonstrates simply that Scotland is part of the United Kingdom and the European Union. The Scottish Government is clearly uncomfortable with one of those facts—for political and ideological reasons—but they are the facts, and the Scottish Government needs to learn to deal with the national and international legal obligations by which we are bound.

That said, we fully support any effort to tidy up the way in which our courts operate and to establish the most effective working relationship between the institutions. The interim report identifies a number of issues in the relationship between the courts. However, it clearly backs the UK Supreme Court’s jurisdiction to rule on human rights in Scottish criminal cases. Furthermore, the report goes on to argue that if, as is the Scottish National Party’s preferred option, the European Court of Human Rights in Strasbourg is used instead,

“there is the potential for further uncertainty and delay.”

I am sure that all members agree that we certainly do not want that when dealing with important human rights cases.

Stewart Maxwell (Scottish National Party, West Scotland)

I commend the member’s view that we must try to make access to justice as speedy as possible and that going to Strasbourg would create too much delay. Therefore, does he agree that it would be much speedier in an independent Scotland if we kept the apex of our judicial system here and did not have to go through the extra step of going to London?

John Lamont (Conservative, Ettrick, Roxburgh and Berwickshire)

I do not quite follow the logic of that. The delay in hearing cases in the European Court of Human Rights is significant—tens of thousands of cases are waiting to be heard. Claimants—people trying to secure their human rights—will not get access to justice any more quickly. Indeed, they will have to wait longer. The consequences of Cadder could have been far reaching if the delay before the case was heard had been much longer than it was at the Supreme Court. Access to justice has been achieved much more quickly under the current system of the Supreme Court than it would be achieved under the system preferred by the SNP.

Unlike the First Minister, the report does not say that the Supreme Court does not know or understand Scots criminal law. Some of the best Scottish judges are appointed to the court. It is insulting to suggest that they are unable to consider Scots cases correctly. If the concerns are really about the need to have Scottish judges to determine Scottish appeals, a solution would be to appoint one further Scottish judge to the Supreme Court and thereby produce a majority in Scottish appeals.

The report also stresses the need for coherence in the way in which human rights laws are applied both north and south of the border. The UK Supreme Court undoubtedly provides a mechanism to ensure that that happens.

I understand that the Advocate General will consider the interim report from Lord McCluskey, and I know that he will be paying close attention to the contributions in today’s debate. However, I have no doubt that he will also draw on the conclusions of his own expert group and the evidence given by the Scottish legal community when they were consulted on these matters.

I am sure that this will be a helpful debate in establishing some of the facts surrounding the relationship between the High Court and the UK Supreme Court. Too much of what we have heard from the Scottish Government on this issue in recent weeks has been either devoid of facts, or a deliberate distortion of facts.

I move amendment S4W-00447.1, to insert at end:

“; notes the realistic conclusion of the interim report that “the Supreme Court would continue to make final and binding rulings on human rights issues including those arising in criminal cases from Scotland”; calls on the Scottish Government to accept this central conclusion, and further notes and expresses its appreciation of the outstanding contributions to Scottish public life and the Scottish legal system made by Lord Hope of Craighead and the late Lord Rodger of Earlsferry”.

Nigel Don (Scottish National Party, Angus North and Mearns)

I, too, am grateful to Lord McCluskey and his review group. I start with paragraph 42 of his first report, which says:

“Those who prefer to see the essence of the arguments distilled will find that that has been expertly done in the Expert Group Report. It would be superfluous to repeat their summary here.”

So he does not repeat it.

I would like to go back to the expert group convened by the Lord Advocate, under Sir David Edward, which reported last November—and offered, as it were, the view from the other side. The expert group had slightly longer to consider the issues. I will start with a quote:

“It is sufficient for present purposes to note that the House of Lords”—

which preceded the Supreme Court—

“on more than one occasion, held that a criminal appeal to the House from the High Court of Justiciary was not competent. This was put beyond doubt by the Criminal Procedure (Scotland) Act 1887. The Criminal Procedure (Scotland) Act 1995 provides that decisions of the High Court of Justiciary ‘… shall be final and conclusive and not subject to review by any court whatsoever.’”

A little further down, the report notes that the Supreme Court, under the Scotland Act 1998, is a court with “constitutional” jurisdiction, ensuring the legislative competence of the Scottish Parliament and the devolved competence of the Scottish ministers. The cause of the problem is that Scottish ministers include not only those who are obviously Scottish ministers but the Lord Advocate and the Solicitor General.

What are devolution issues? The report says that they have to do with “legislative competence”. I do not think that that is in dispute—which is one of the reasons why the Supreme Court will remain. The report also says that devolution issues are questions about

“the exercise (or purported or proposed exercise) of a function by”

a minister, and questions about the

“failure to act by a member of the Scottish Executive”

and whether that

“is incompatible with a Convention right or EU law.”

That, of course, is a point to which we will return.

It is because, and only because, the Lord Advocate is a member of the Scottish Executive that his or her acts are subject to review as a devolution issue. There is no parallel in other parts of the United Kingdom.

I apologise, Presiding Officer, for the speed with which I am going through this, but time is not on my side.

On page 12—

Johann Lamont (Labour, Glasgow Pollok)

Will the member take an intervention?

Nigel Don (Scottish National Party, Angus North and Mearns)

Forgive me. As I have just said, time is not on my side, and I really want to get this on the record.

The expert group’s report says on page 12:

“Any tension between the tests applied by the Supreme Court and the High Court was effectively resolved by the decision of the Supreme Court in McInnes—”

which was in 2010.

“In that case, the Supreme Court also made clear that where a case raises special features of Scots criminal law and practice, the Supreme Court ‘must be careful to bear in mind the fact that the High Court of Justiciary is the court of last resort in all criminal matters in Scotland’.”

I emphasise that that was the Supreme Court saying that.

The report goes on:

“In adopting this approach the Supreme Court recognised what has been repeatedly emphasised by the European Court, namely that it is not concerned with substantive domestic law but only with ensuring compliance with the rights secured under the Convention. Devolution issues only properly arise where there is an issue of procedural unfairness.”

However, the report of the expert review also notes, on page 14:

“in reviewing a devolution issue, the Supreme Court has (at least in certain circumstances)—”

and this is prior to the recent Fraser case—

“effectively reviewed the whole merits of a decision. It is unsatisfactory that such a wide jurisdiction should be the by-product of interpretative ingenuity applied to the concept of the expression ‘act of the Lord Advocate’.”

That would perhaps be fine if the Supreme Court was made up exclusively of Scots judges. I go back to John Lamont’s comments—I am not sure why having a majority of Scottish judges would help; they should really all know what they are doing.

Lord Hope’s personal response to the expert group is cited on page 15 of the report, at paragraph 3.16, which notes:

“Lord Hope concludes by saying:

‘For the most part the fact that the Supreme Court draws its membership from several jurisdictions has not given rise to difficulty. In practice the other justices defer to the expertise of the Scots on matters of Scottish criminal law and procedure that may come under scrutiny, and I am confident that this will continue to be the case.’”

Others will argue about other problems, but I take from the quotes that I have read out the point that the Supreme Court itself recognises that it is reviewing, although it should not be. It now finds itself with just one Scottish judge, sadly, although there will no doubt be two again ere long. The majority of judges in that court are simply not experts on the subject, but on occasion—albeit it might not be very often—they are asked to review the whole merits of a case. As far as I am concerned, that is what should not be happening, and the Supreme Court itself recognises that it should not be happening. Furthermore, every statute that I have cited recognises that that should not be happening. We absolutely have to address that.

Graeme Pearson (Labour, South Scotland)

I acknowledge the contribution of Lord Rodger of Earlsferry to the wellbeing of Scottish justice. I also acknowledge his humanity and the way in which he dealt with members of the public in the performance of his duties.

This is one of the last debates before the summer recess, and I would have imagined that we would be dealing with an issue of great concern to the ordinary members of the public of Scotland. I thought that it might have been about the 200,000 Scottish children who are living in homes that have been designated cold and damp and who are suffering from fuel poverty, or about the 20,000 children who reside in homes with adults who are affected by drug abuse.

No. We find that we are dealing with the role of the Supreme Court, a subject so significant to our future that the First Minister, in his interview with Holyrood magazine, focused his wrath on the institution in terms that one could only describe as unprecedented and unparliamentary. The attack on Lord Hope of Craighead, who is an acknowledged leading light in Scottish jurisprudence, was astonishing in its venom, and indeed in its inaccuracy. Taken in concert with the justice minister’s assertion that

“He who pays the piper ... calls the tune”,

it presented Scotland’s Government in an undignified light, creating an atmosphere for debate more akin to that of the football terraces than that of political discourse.

The First Minister’s attack on

“the vilest people on the planet”

does nothing more than play to gut prejudice. He well knows that prisoners are in our prisons not because of who they are but because of what they have done.

One can only imagine that the immediate thrill of its success in the election caused the Scottish National Party Government to lose the place—although hopefully it did so only momentarily. At least the First Minister has since recognised common sense by delaying his sectarianism legislation. Perhaps he now realises the error of his ways in his management of this issue, too, and perhaps the cabinet secretary will follow his example.

Is the function of the Supreme Court of such import that it required the First Minister’s immediate attention? Apparently not. The genesis of the current situation emanates from the Scotland Act 1998 and the Human Rights Act 1998. The First Minister, who was then a member of the Westminster Parliament, presumably recognised the significance of section 57(2) of the Scotland Act 1998, given that it introduced a role for the Judicial Committee of the Privy Council in reviewing the acts of the Lord Advocate. At the time, Mr Salmond harshly described the Judicial Committee of the Privy Council as consisting of many members who had held political office and owed their appointment to the council to politics.

It has been 13 years since the Scotland Act 1998 and six years since the creation of a non-political Supreme Court, yet only now is the Scottish Government overcome by the absolute imperative of ensuring that Scottish courts are maintained in the fiction that they exercise their function in total isolation and that external courts should have no influence on the Scots law tradition. Depending on which part of his speech one listens to, the justice secretary’s position is either that the Supreme Court deals with routine cases or that it deals with fundamentally significant cases.

It is curious that at this time we should find our attentions diverted from the real issues that are important to normal people.

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

Did the member take that view when we had to have emergency legislation in relation to Cadder? Does he think that we should just have viewed that as routine? Does he not recognise that some of the matters decided by the Supreme Court cause such significant issues that we have to deal with them as emergency legislation? Does he wish that situation to continue in the future?

Graeme Pearson (Labour, South Scotland)

I obviously recognise that the decisions taken by the Supreme Court are of fundamental import to Scots law, but the issues arising from the Cadder decision were flagged up earlier by a decision in relation to a Turkish case. That should have been acknowledged and acted on much earlier.

The reality is that when the United Kingdom signed up to the Human Rights Act 1998, each jurisdiction in the UK became subject to responsibilities in relation to the Strasbourg court and the European convention on human rights. It seems to me that instead of denouncing a London-based court, which had two pre-eminent Scottish judges on it, Lord Hope and Lord Rodger, the Government would have done better to examine the ends at which the arrangement was aimed—swifter and better justice—and not become overwhelmed by the means by which the court’s decisions were arrived at.

The Government’s concentration on both the court’s location and the nationality of the judges who are involved reduced Scotland’s position to one akin to hillbilly politics—and not for the first time. The substantive issue of having proper procedures while acknowledging the Supreme Court’s right to rule on appropriate Scottish matters was lost in the brouhaha. Common sense and decorum were abandoned as insults were flung and aspersions were cast.

The McCluskey report offers a sane interim before the next stage: proper measured discussions involving experts who can advise best on the way to arrive at an appropriate solution to the current administrative lacuna.

Be in no doubt: the independent report by McCluskey states that the Scottish Parliament has no power to alter the jurisdiction of the Supreme Court in human rights matters. The report states—with the expert group’s agreement—that the Supreme Court should continue to have jurisdiction over human rights issues in Scottish criminal cases.

For me, the key issue is to get the Government’s agreement on a way forward that acknowledges the Supreme Court as a valuable mechanism for deciding human rights matters affecting Scottish courts. Only then is it likely that, as the Cabinet Secretary for Justice suggested, a line can be drawn under this matter.

John Scott (Conservative, Ayr)

You must close now, Mr Pearson.

Graeme Pearson (Labour, South Scotland)

The Government has diverted our attention away from the real issues and, as such, I support Johann Lamont’s amendment.

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

My speech is in three parts, covering the historical perspective; Lord McCluskey’s review, which, as most will acknowledge, sets out a reasonable way forward for the UK Supreme Court, especially with regard to parity between the various jurisdictions; and the ECHR itself.

Could we have foreseen the reach that the UK Supreme Court would have? Certainly not. In the debate on the Sewel motion on the UK Supreme Court’s establishment that we had in 2005, the motion was moved by Hugh Henry, the then Deputy Minister for Justice. At the time, he said—and I am being fair though selective in my quotations:

“Those areas relate to the rights of appeal in civil cases from the Court of Session on non-devolution issues.”

That is what people were focusing on. Mr Henry also said:

“We must also ensure, as Pauline McNeill said, that the independence and integrity of Scots law are maintained. The separate nature of the Scottish legal system is an important part of how Parliament can operate differently, reflecting the needs and aspirations of the Scottish people.”

He also mentioned that the Justice 2 Committee

“proposed that there should be enshrined in legislation the requirement for a Scottish majority in the supreme court for cases that emanate from Scotland that give rise to devolution issues.”

Those issues were aired in the debate at the time. The Conservatives opposed the move—indeed, there is a delightful comment from Bill Aitken about happening to find himself for the first and perhaps last time on the same side as the then shadow minister for justice, Kenny MacAskill—with Annabel Goldie making it clear that their opposition was based on the fact that the legislation was rushed, that no royal commission had been set up and that there was no real consideration of the proposal. Mike Pringle of the Liberal Democrats supported it, but even he focused on civil cases. Everyone had their eye on the House of Lords’s dual judicial and legislative purpose and it was felt—appropriately, I think—that there was a conflict of purpose and interest in its sitting as a legislator and as a court of appeal on Scottish civil court cases. As far as I can see, no one in that debate seemed to think for a moment about criminal cases.

That was the position in 2005 and, as a result, I think it really rather impolite to say that a senior bench of Scottish judges should have seen this train crash coming down the track. They know a lot more about Scots law than anyone sitting in the chamber and if they could not see it coming, I do not know how anyone else was supposed to.

I also find it ironic that, in that earlier debate, the current Cabinet Secretary for Justice said:

“Ultimately, we have to ensure parity.”—[Official Report, 19 January 2005 ; c 13629-33.]

Of course, he was talking about civil cases; as we now know, the flow has been the other way. As Nigel Don pointed out, criminal jurisdiction has partly shifted towards the House of Lords in a way that, I think, was never envisaged.

I welcome the interim report from Lord McCluskey’s review group and look forward to the publication of the final report in August. However, I say to Johann Lamont that she should take a look at some of the cases that are before the UK Supreme Court. One particular case, which involves AXA General Insurance Ltd and others as appellants against the Lord Advocate and others, seeks to reduce the effect of legislation on pleural plaques, an act of this Parliament that her party campaigned for. They are attempting to challenge the Parliament’s competence in passing that legislation under the European convention on human rights. As we know, every bill that comes before Parliament has to be certified as competent under ECHR, but the fact is that all those people who are waiting for damages under that legislation are not getting them anymore.

We need to consider the unforeseen breadth of the cases that are coming before the Supreme Court. For example, one case, referred to as Her Majesty’s Advocate v Ambrose (Scotland), relates to the evidence obtained when an accused person responded to police questioning at the roadside without any legal presence. That is where this is taking us.

Richard Simpson (Labour, Mid Scotland and Fife)

Taking the example that the member has highlighted, I point out that tobacco companies, for example, take us to court to delay the implementation of legislation. What would happen if the Supreme Court did not exist? Would the matter not go to Strasbourg? If so, would that not result in much longer delays?

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

With respect, I think that the member misses my point. The Supreme Court is challenging the Parliament’s competence to deliver its own acts and is, in fact, reviewing our own legislation. The legal advice that we received on this particular legislation, which as I recall was passed unanimously, was that it was ECHR-compliant; however, that is now being reviewed. No one envisaged that happening.

I turn, in my final minute and a half, to the convention itself, which the Council of Europe established when it had only seven members. I fully support the principles and rights that are embodied in the convention, but the Council of Europe now has 47 member states, all of which have very different cultures, economies, jurisdictions and rules. In Scotland, people have a right to silence, from which guilt cannot be inferred. In Scotland, independent corroboration is necessary in criminal cases. In Scotland, people have access to criminal legal aid. In Scotland, people have a right to apply for bail in certain cases. Does all that apply in other nation states? I do not think that it applies across the board.

I suggest that, after 60 years of the ECHR, rather than challenge the rights and duties that exist under it, we should ask for a review of its operation across nation states to take account of the different jurisdictional checks and balances that are applied in those nations. That way, we might avoid judgments coming through that are not sustainable.

Kezia Dugdale (Labour, Lothian)

I very much welcome the opportunity to take part in today’s debate on the Supreme Court.

I am conscious that we all walked past Public and Commercial Services Union members who are on strike as we entered the building this morning. I am aware that many of the staff who work in our court system are PCS members, and it would be wrong to discuss the work that they do without recognising their hard work and dedication to public service. They are striking today because of the serious attack on their living standards that is the result of measures that the UK Government has taken, and I encourage members to sign my colleague Drew Smith’s motion in support of their position.

In preparation for today’s debate, I read the interim report of the group that is chaired by Lord McCluskey, who is supported by Sir Gerald Gordon, Sheriff Charles Stoddart and Professor Neil Walker. I was fortunate enough to have been taught constitutional law by Professor Walker at the University of Aberdeen a decade or so ago, and I admit that I had hoped that I had left late nights of reading legal opinion for his class behind me but, alas, that is not the case.

Like the SNP, I am very proud of Scotland’s legal system and its proud history, which is one of the first things that students learn about at law school. We are different, and our system has been admired and plagiarised, in the best possible way, around the world.

However, I fear that the SNP, through its attempts to chastise the Supreme Court for the role that it plays, has done our legal system a disservice. Let me develop that point. The McCluskey report is right to recognise the fact that Scotland is the only devolved authority in the UK for which the Supreme Court has an unqualified right to grant special leave when the court below has not granted leave. That is an anomaly, which the report is right to raise, but it does not amount to a constitutional crisis that demands the levels of hysteria that have been displayed by the justice secretary and the First Minister.

For me, the answer is not to narrow the role of the Supreme Court in Scotland, but to refine it by addressing the anomalies that exist and to use it to our advantage. For as long as Scotland is part of the UK, which is the signatory to the convention and is therefore accountable for its application, that is the right and proper way to function.

The McCluskey report argues that the Supreme Court should have a role in identifying the law that the criminal courts apply, but that that law should be remitted back to the High Court for application. Paragraph 60 of the report says:

“Once the Supreme Court has defined and expressed the law applicable in response to the point of general public importance raised in the certificate, the High Court of Justiciary should be able to apply that law to the case in hand. This method of proceeding would ensure that the Supreme Court, in dealing with its human rights jurisdiction in criminal cases, would concentrate on identifying and articulating clearly the relevant law contained in the Human Rights Act and would not proceed to decide the case as if it were the High Court of Justiciary. In this way the traditional role of the High Court of Justiciary would be preserved.”

That might make uncomfortable reading for Government ministers, coming, as it does, in a report that they commissioned, but it strikes me, at this early stage, as being a sensible and legally sound position to adopt.

The report goes on to discuss briefly the prospect of the High Court seeking a ruling from the Supreme Court on a point of human rights law before trial. Actively seeking the Supreme Court’s guidance on the application of human rights law prior to the commencement of a trial could, arguably, speed up the justice process and improve the finality of decisions. That is an extremely interesting prospect, and I look forward to reading more on the detail of that idea in the final report of Lord McCluskey and his team. I acknowledge that, as other members of my party have said, the report that we are discussing is an interim report and that much more evidence needs to be gathered before any real conclusions can be drawn.

I do not accept that the integrity of Scots law is under attack from an English court. I am firmly of the view that the application of our law needs to be read alongside our duties under human rights legislation, and I am as proud of our country’s human rights laws as I am of the Parliament. Freedom of expression and the right to privacy, life, freedom from torture, a fair trial and freedom of thought, conscience and religion are all fundamental to a free and fair society. The Supreme Court exists to protects those rights, and we will undermine them if we choose to make this debate about a constitutional question about Scotland’s relationship with its neighbour. We have a duty as parliamentarians to reaffirm why those rights exist and to recognise that there is no hierarchy of rights between law-abiding and law-breaking individuals. As my colleague Graeme Pearson said, “vile people”—the First Minister used that term—go to jail not for who they are, but for what they have done. When we send people to prison, we remove their liberties, but not their rights. That said, the public debate about human rights in action would benefit from more positive stories about their capacity to protect victims and vulnerable people.

The Scottish people’s choice of Government is indisputable, but their future constitutional preference is not. Government ministers’ attempts to cut off the Supreme Court and remove it from the jurisdiction of our land to raise the spectre of independence are not just poor politics; they border on abusing the rule of law. That is why I welcome Lord McCluskey’s thoughtful and sound interim report and look forward to seeing the continuation of the debate surrounding the Supreme Court.

Alison McInnes (Liberal Democrat, North East Scotland)

The Scottish Liberal Democrats, too, mark the sad death of Lord Rodger by paying tribute to his work and his contribution to the Scots legal profession.

I join other members in thanking Lord McCluskey and his group for working so quickly to get their first report to us in time to inform this debate, which is taking place just before the summer recess. I also welcome the language in the Government’s motion. It is fair to say that it is somewhat more considered than what the Cabinet Secretary for Justice and the First Minister have said in recent weeks.

It seems to me that the Government has found itself in a slightly awkward position in that it is being forced to welcome a report that it disagrees with. I sense that SNP members will make interventions and try to claim that that is not so, but the First Minister has said that the Scottish Government believes that

“the UK Supreme Court should have no role in matters of Scots criminal law”.

He has said:

“It is our firm view that the final appeal court for any Scottish criminal case should be in Scotland”.

In fact, he set up the review group expressly

“to examine how best to achieve that.”—[Official Report, 2 June 2011; c 305.]

Perhaps now, having been forced to beat a hasty retreat for the second time in a week, Government ministers will think twice before they pronounce on issues using the tawdry language that showed so much disrespect to the Supreme Court, its judges and our legal system. It should be a matter of great concern to everyone that ministers, who play a role within our judicial system, should launch attacks on judges and their judgments. Respecting the judiciary’s independence is a fundamental responsibility of the Government, and I hope that ministers will take that duty more seriously in the future.

The truly disappointing aspect of the debate is that the intemperate comments from Mr Salmond and Mr MacAskill have served only to distract us from the real issue at hand. The main issue that we should be concerned with is not where the Cadder or Nat Fraser ruling was made; we should be far more worried about the deficiencies in our criminal law and procedures that are creating doubts about the legitimacy of convictions in the first place. Those cases and other recent cases have not been examples of a foreign court imposing itself into Scottish criminal proceedings; rather, they have been a warning that we need to look closely at our body of law and review exactly how it sits in relation to our ECHR responsibilities.

In its briefing for this debate, Amnesty International rightly pointed out that

“It is unfortunate that most public, or even political, engagement with the ECHR centres around criminal cases”,

with the consequent

“assumption that human rights exist principally to benefit”

the criminal classes. That perception of the ECHR is not the reality, of course, but it lingers and in many ways makes the discussion about how it should work in relation to Scots law more difficult. However, that difficulty is not a reason to ignore it. The recent cases have demonstrated that we must look to address the matter with some urgency.

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

I want to pick up on the point about our focusing on the criminal. Does the member consider the AXA case to be hugely significant? It is a civil case in which a huge insurance company is relying on the right to possessions—in other words, its funds.

Alison McInnes (Liberal Democrat, North East Scotland)

I understand the points that the member raises in relation to that case, but if we have established a robust position, we should not be frightened of defending it.

If any court identifies holes that leave Scots law open to successful appeal on human rights grounds, we cannot assume that they are isolated issues and hope for the best. We must take a proactive approach and act to close any further gaps that might remain. I therefore whole-heartedly endorse the Law Society of Scotland’s call to set up a full audit of the compatibility of Scots criminal law with the ECHR. The people of Scotland must have confidence that our laws will hold up to human rights challenges. I hope that the cabinet secretary will set in motion such an audit at the earliest possible opportunity.

I have a few concerns in relation to the McCluskey report. Although, as I said, we are all grateful for the speed at which the group has worked to meet another of the Government’s needlessly rushed deadlines, that speed has necessarily come at the expense of full consideration. For example, I am forced to wonder why we seem to be giving the report the same weight and significance as the Advocate General’s expert group’s report. That report was put together over several months and on the back of evidence taking and discussions with a wide range of experts and interested parties.

I am certainly not opposed to receiving a second opinion of sorts on the optimum solution for how the relationship between the Scottish courts and the Supreme Court should work. However—I say this with the greatest respect for the members of the review group—it is not possible to consider the issues and implications fully without the detailed consultation that the Advocate General’s group carried out. It is something of an oddity that we are having this debate about a hurried interim report that was commissioned on the back of rash comments from Government ministers that deflected attention from a failure of our legal process to properly protect a citizen’s human rights.

There is certainly discussion to be had on the role of the Supreme Court in Scotland, but that discussion has largely been had already. We have had a full detailed report and amendments that will readjust and clarify the Supreme Court’s role. Perhaps, given time to fully investigate the situation, the review group will recommend that the discussion should be reopened. Until then, I cannot help but feel that we would have been better served discussing what needs to be done to stop so many human rights issues arising in Scots criminal cases in the first place.

Graeme Dey (Scottish National Party, Angus South)

As the First Minister has made clear, the Government does not claim a monopoly on wisdom, be it on the issue that we are discussing or on any other matter. However, it is interesting to note the long list of legal experts—including, to name but two, Paul McBride and Elish Angiolini—who have echoed the Government’s concerns about the Supreme Court.

I am mindful of the wise counsel of a constituent of mine who has a long-standing interest in matters legal. He has made clear that

“There is a perfectly adequate system within Scotland for criminal justice appeals to be taken in Edinburgh.”

I do not agree on everything with that constituent. Indeed, I am sure that he was not among the 16,000 or so people who chose to vote SNP in my constituency in the recent election. However, just because Lord Fraser of Carmyllie remains misguided politically, that does not mean that his opinion on the Supreme Court is unworthy of respect. After all, Peter Fraser is a former Lord Advocate and Solicitor General and someone who, on legal matters at least, ought to know what he is talking about.

So, too, one would think, is Ian Smart, who is a former president of the Law Society of Scotland. As the Cabinet Secretary for Justice mentioned, he has stated:

“we have drifted into a situation where there is a second layer of appeal which was never anybody’s intention.

The Court of Criminal Appeal is the final appeal court in Scottish criminal procedure. If anybody had any intention of changing that, it would have been changed in Statute. Nobody intended that routine cases should be dealt with by the Supreme Court.”

Perhaps so, but that is where we found ourselves.

The Government’s opposition to what is happening is not, as Iain Gray has claimed, “constitutional grandstanding”. It is not, as Johann Lamont said, driven by a political agenda; it is about standing up for Scotland’s distinct legal system and seeking to prevent further erosion and interference.

Johann Lamont (Labour, Glasgow Pollok)

Does the member agree that there are people in the legal profession who do not take the same view and that we should recognise that there is a range of views in the profession? Does he agree that we should try to come to a resolution through co-operating, rather than by picking folk who agree with us and saying that there is an issue of principle?

Graeme Dey (Scottish National Party, Angus South)

The member is right that there is a range of opinions. I have here a list of people who tend to agree with the Government.

The issue is not about seeking special treatment; it is about ensuring that our legal system enjoys the same respect and status as exist in other parts of these isles. The unionist parties in the Parliament are happy for Scotland to be part of Britain, so why are they seemingly prepared to accept that Scottish defendants can appeal to the UKSC without leave from our High Court, while English defendants require no equivalent permission? Where is the equality of partnership in the union in that? As a Parliament, we would be failing in our duty if we sat back and accepted a situation where a court in another UK jurisdiction can intervene in our judicial system.

Enshrined within the act of union is the principle that courts outside our borders should have no jurisdiction over Scottish criminal matters. Are those who defend the union really saying that the act that underpins it—or at least an aspect of it—can be ridden roughshod over? Perhaps independence is closer than we thought.

The interim report of Lord McCluskey’s independent specialist group is to be welcomed, at least to the extent that it recognises that there is a need to put the High Court on an equal footing with its counterparts in England and Wales by requiring the granting of a certificate that says that the case raises a point of general importance before a Supreme Court appeal can proceed. The report does not go far enough, in the view of some of us in the chamber, but we are where we are and we need to make the best of a bad job.

I want to address Johann Lamont’s amendment and some of the comments that have been made. We require to move on in this matter. I agree that it would have been preferable if we had been spared the use of words such as “arrogance”, “conceit”, “bile”, “intemperance” and “sneering disregard” in relation to this issue. Unfortunately, the leader of the Conservatives was unable to exercise restraint while participating in First Minister’s question time a couple of weeks ago. That was then; this is now. Let us focus on the issue being debated and the options for resolution.

James Dornan (Scottish National Party, Glasgow Cathcart)

Scotland has many things that distinguish it from the rest of the British Isles: our education system, our history, our culture and, of course, our independent legal system, which was so cherished by us Scots that we ensured that its independence was enshrined in the act of union in 1707. Surely on this issue we can all agree that we lose the independence of our legal system at our peril.

However, here we are more than 300 years later debating why a decision made unanimously by seven Scottish bench judges in a Scottish court is being overturned by a court outside Scotland—the UK Supreme Court—where the majority of judges are not experts in Scots law.

John Lamont (Conservative, Ettrick, Roxburgh and Berwickshire)

Is the member seriously arguing that the European Court of Human Rights would have taken a different decision than the one that the Supreme Court took? Is he saying that, if the case had gone to the European Court of Human Rights, that court would have reached a different conclusion?

James Dornan (Scottish National Party, Glasgow Cathcart)

It is very difficult for me to answer such hypothetical questions.

We have heard the background. Prior to 1999, the judiciary of Scotland were the final arbiters of all things criminal in Scottish law. Even though the Supreme Court was written into the Scotland Act 1998, it was never meant to be able to take on the role that it appears to have taken on.

It is my view that the electorate put us in this chamber for two main reasons: to stand up for our constituents and to stand up for the interests of our institutions and the Parliament. The way that the Supreme Court has behaved recently is a blatant attack on both.

Scotland is not some region of England to be dealt with under English law; it is a proud nation with a long history of a unique and treasured legal system and it deserves to be treated in the same way as every other legal jurisdiction across Europe, with the Strasbourg court as the final option for judgment when required.

James Kelly (Labour, Rutherglen)

Will the member give way?

James Dornan (Scottish National Party, Glasgow Cathcart)

No, sit down.

By now, members will have had the chance to familiarise themselves with the findings of Lord McCluskey’s interim report. He rightly points out that the High Court of Justiciary—the highest court of appeal in Scotland—should be seen as equal and not subordinate to its counterpart south of the border. Yet, since 1999, the Supreme Court has overturned the decision in a Scottish criminal appeal in nine cases and upheld the Scottish decision in six cases. It is important to stress that Strasbourg cannot quash convictions so, although the two courts have similar remits, they are not the same.

How can it be right that a court where the majority of judges are not experts in Scots law should have the power to overturn a decision that is made by seven eminent judges who are experts in Scots law?

Johann Lamont (Labour, Glasgow Pollok)

How many experts in Scots law are sitting in Strasbourg? How long would it take to get cases there and how long does the SNP think is acceptable for people to have to wait for access to an appeal?

James Dornan (Scottish National Party, Glasgow Cathcart)

What I do not think is acceptable is that Scotland is unique among all the legal jurisdictions in Europe in that it has to ask its big brother for permission before cases can go to Strasbourg. What we are asking for is parity for the people of Scotland and for the Parliament.

Quite simply, the current situation is not right. Clearly, I am not alone in that assertion. Lord Fraser of Carmyllie, a former Tory MP, who has already been quoted, said:

“Mr Salmond is spot on ... There is a perfectly adequate system within Scotland for criminal justice appeals to be taken in Edinburgh.”

I know that Lord Wallace is seeking to amend the Scotland Bill with regard to the Supreme Court, but he does not go far enough to protect the integrity of the Scottish judiciary. It should concern him, as it concerns some members of this Parliament, that the High Court can be challenged in a way that was never possible before devolution and was never intended to be possible after devolution.

We all know the background to the Cadder affair. Peter Cadder appealed his sentence on conviction, because the evidence that had been used against him was collected before he spoke to his lawyer. That was common practice in Scotland, although I never heard anybody from the Labour benches complaining about it.

When the UK Supreme Court found in favour of Cadder, Lord Hope gave the lead opinion, saying:

“It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure.”

What I find remarkable about it is that Lord Hope was Lord President from 1989 to 1996. We might have thought that, during that period, such a supposedly glaring deficiency would have come to his attention.

There have always been other safeguards in Scots law, of course, including corroboration, but Lord Hope and his colleagues clearly decided that that was irrelevant.

This issue is of huge importance to the Scottish legal profession and to members of the public, particularly the victims of crime. The Cadder decision alone is thought to have affected up to 40,000 detentions a year. Some of the people who were charged with the most serious of offences have had those charges dropped. How is that good for Scotland?

Scotland deserves the right to be treated as any other ordinary country. We do not need big brother keeping an eye on us in case we get it wrong. I accept that, as long as we are part of this union, which has far outlived any usefulness that it might once have had, the Supreme Court has to be dealt with. I therefore strongly support the McCluskey recommendation that, as happens in England, no appeal can be dealt with by the Supreme Court unless leave is given by the original court of appeal. [Interruption.]

When it comes to being treated as equals, I will believe that when I hear about the Supreme Court dealing with a case where someone in England believes that their human rights have been abused because they were not given the safeguard of corroboration, such as we have here in Scotland. However, I suspect that we will be waiting a while for that.

I urge members to support the Government on this crucial issue.

Gil Paterson (Scottish National Party, Clydebank and Milngavie)

I am very much a supporter of the European Court of Human Rights. The history of Europe tells us that individuals and communities have been persecuted, and that has not stopped—it continues. I firmly believe that the individual should be protected from the state, so that they can get on with their lives without being picked on.

However, my support is not unqualified. I have grave reservations regarding some aspects of how human rights legislation is implemented. Voices have been raised in that regard, and I point in particular to the Tories, who are consistent in their approach to some of the issues that have arisen.

I call this the European straight-banana syndrome, whereby measures are so bizarre when they are implemented that they bring into question the whole system of human rights. Having said that, I am still very much a supporter. I am confident that the areas of concern will be examined, and that things will be changed.

The establishment of the Supreme Court has created a rights issue in Scottish terms. Some members have mentioned the treaty of union. In effect, the United Kingdom has an unwritten constitution, but the nearest thing that we have to a written constitution is the treaty of union and the act of union that followed. The treaty itself discusses the parity between Scots and English law, and with good reason. That is not there, as some members might think, as some gift to the Scots—as some protection from which only the Scots would benefit. It is the United Kingdom, and the two legal systems are entirely distinct from each other. It would be farcical if the law in England was interfered with by Scots law. That has been the case for 300 years, and the arrangements have worked extremely satisfactorily.

However, we now have what is in effect an English model and system interfering with Scots law. In English law, for instance, there is the House of Lords, which has no jurisdiction whatever in Scotland. I can prove as much because in a case that I eventually took to the European Court of Human Rights I was required first to exhaust all domestic legal remedies. I was not required to go to the House of Lords; after I took the case through the Scottish courts, I went straight to Europe, which demonstrates that Europe itself recognises the uniqueness of Scots law.

No matter how many good, hard-working Scottish judges sit on it, the Supreme Court is still, in my view, an English court. I find it strange that, even though I am a firm believer that the only way that Scotland can move forward is through independence, I am, because of the treaty of union, standing here having to defend the union while the very folk who are supposed to be unionists are letting it disintegrate willy-nilly by allowing all this to happen. Given that there is no way the treaty of union can be amended in law, I believe that this court has been set up in a fundamentally unlawful way. I challenge my own ministers and the Law Society of Scotland to go back to first principles—or, in other words, the treaty of union. If English law, as I see it, is gazumping Scots law in this fashion, it should stop doing so immediately in order to protect the union.

Richard Simpson (Labour, Mid Scotland and Fife)

I, like many others, pay tribute to Lord Rodger of Earlsferry, who shared with me a love of the east neuk; indeed, he derived his title from that very area. Rightly considered to be one of the finest legal minds of his generation, he made a profound and outstanding contribution to the Scottish legal system and the Scottish legal profession is poorer for his passing.

I want to consider the role that the UK Supreme Court should play in Scots law. Some of the comments made by the First Minister and the Cabinet Secretary for Justice have been unhelpful; to be frank, I think that some have been disgraceful and certainly amount to nothing more than constitutional wrangling with an incorrect understanding of the real issues.

I accept that, historically, only civil appeals from Scotland went to the House of Lords and that the final court of criminal appeal was always the High Court of Justiciary. However, one should not be surprised that, with the advent in 1999 of devolution and a new legislature and Executive, there needed to be a fundamental shift in the legal system to accommodate such things. It remains the case that the Scottish Government is accountable to a legislature with limited powers; as a result, it is more limited in power than the UK Government, which is accountable to a sovereign legislature.

Under section 57 of the Scotland Act 1998, the Scottish Government is prohibited from carrying out any act that would be incompatible with the ECHR. Originally, an appeal on such grounds would have been made to the Judicial Committee of the Privy Council, but that responsibility was transferred to the UK Supreme Court when it was set up. I do not think that such a change was as groundbreaking as Gil Paterson has suggested. Given that the judges who were on the judicial committee are the same as those who now sit on the Supreme Court, the power that is being wielded over the Scottish Government is not new, and the only conclusion that we can draw is that the Government is behaving in this particular manner because of the Cadder appeal and, more recently, the appeal by Nat Fraser. However, I believe that, instead of accusing the Supreme Court judges of being “ambulance chasers” and threatening to cut funding, we should engage positively with a system that protects the human rights of everyone in this country.

In our manifesto, Scottish Labour pledged to set up an audit of Scots criminal law to ensure that we never have to repeat the rush of panic legislation, costly compensation claims and mass appeals that followed the Cadder judgment. I hope that the Scottish Government will take that plan forward.

We support the European convention on human rights. Some members seem to be implying that they do not. I am sure that that is not their intention. Those rights have made a huge contribution to justice throughout the 46 jurisdictions in Europe, which remain distinct.

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

Whose human rights are being protected in the AXA case? Should we not be protecting the human rights of those who suffer from pleural plaques and upholding the dignity of this Parliament, which correctly acted to protect them?

Richard Simpson (Labour, Mid Scotland and Fife)

I will answer that question a little later.

The ECHR has made a huge contribution to justice throughout the 46 different jurisdictions in Europe and has established an appropriate set of principles. There is a requirement for consistency across vast areas of the European jurisdiction.

Scottish Labour welcomes the McCluskey report’s support for the Supreme Court to continue to hear criminal appeals on human rights grounds as

“a necessary means for securing ‘consistency’ throughout the distinct jurisdictions within the union that constitutes the UK.”

We accept that there is room for improvement and we hope that the McCluskey group now engages in much wider consultation on how that can be achieved before it makes its final report.

Far from encroaching on the independence of Scots law, that approach simply means that the ECHR is one of the latest improving influences on our unique—but not isolated—legal system, which has evolved from a huge number of different sources and traditions. Indeed, as Lord Hope pointed out, Scotland’s early exclusion of evidence elicited under torture demonstrates the way in which Scots law has evolved over the years; presumably, it will continue to evolve. Some SNP members have implied that our legal system is preserved in aspic. I disagree. That was not the case when it said that we should not take evidence elicited under torture and it will continue to evolve and to recognise the ECHR.

Gil Paterson (Scottish National Party, Clydebank and Milngavie)

The member misdirects the chamber. Members on this side of the chamber did not suggest that Scots law has never evolved. It has evolved from within and has taken some leads from other jurisdictions. The distinction here is that it is interference rather than evolution.

Richard Simpson (Labour, Mid Scotland and Fife)

I think that it was Professor Neil Walker who talked about interpenetration between the English and Scottish systems, rather than one dominating the other—one does not tell the other what to do. It is about retaining our uniqueness while nevertheless accepting that there will be a degree of alignment and interpenetration.

I understand fully that there is understandable public concern, referred to by other members, about the uncomfortable imposition of coherence associated with the ECHR, and the apparent greater protection given to the accused than to the victim. While we probably all feel that to some extent, it is not an excuse for attacking the system.

The first act of this Parliament was to deal with the Ruddle case. As those members who were here at the time will remember, the case presented us with the serious prospect of serious and violent offenders being released from our state hospital. It was the incorporation of the ECHR that led to that situation, and a number of uncomfortable decisions have been made since. However, that does not make these decisions inappropriate. That is important. We take a risk if we begin to suggest that, because of their uncomfortable nature, such decisions are wrong, which is what some members have implied in today’s debate. I suspect that the intemperate language of the Cabinet Secretary for Justice has more to do with the campaign for independence than that justifiable public concern or the protection of our system.

As an independent state, we would still need a supreme court or to revert to Strasbourg. Strasbourg has a massive backlog of cases, so the Government party intends to subject us Scots to inordinate delays in achieving justice under the ECHR by removing or changing the Supreme Court. I welcome the McCluskey judgment that we should continue with it, and I hope that there will be wide consultation in trying to reduce some of the anomalies.

I support the amendment in Johann Lamont’s name.

Stewart Maxwell (Scottish National Party, West Scotland)

I begin by thanking Lord McCluskey and his group for their interim report. Comments have been made this morning about the lack of consultation, but point 77 in the final part of the report says:

“We are prepared to consult interested parties on the way forward following publication of this Report and the subsequent Parliamentary debate.”

The group clearly intends to consult before producing a more detailed analysis. It is unfortunate that some members have focused on a lack of consultation, rather than on the issues in the report.

Johann Lamont (Labour, Glasgow Pollok)

The point being made is serious. A timetable has been unnecessarily imposed by the Scottish Government, and we are debating a report on which final conclusions have yet to be reached. The review group says that it wants to consult further, so it would surely have been logical for us to wait for that, rather than addressing the issue on a timetable determined not by the review group but, for whatever reason, by the Scottish Government.

Stewart Maxwell (Scottish National Party, West Scotland)

I am rather surprised by that comment. I have been here for eight years, and the member has been here for 12, so we both know that it is not unusual for us to have debates before the start of a consultation, during a consultation, and after a consultation. Having the debate today does not seem entirely inappropriate. The Presiding Officer has spoken about suggestions for improving debates in the chamber and in committees, and it might be a good idea if committees sometimes initiated debates before beginning a consultation or writing a report. There are many ways of doing things; we do not necessarily have to await a final conclusion or report before speaking about a matter. What the member said was rather misguided.

I agree with what the report says about the realities. For those of us who do not wish to remain part of the UK state, the retention of the Supreme Court is, of course, anomalous. That is my starting point, and that is the SNP’s position. However, we are where we are. As has been said before by many people, we have to deal with the situation as we find it.

Richard Simpson concluded by saying that it would be terrible if Scots were denied justice because of delays or backlogs in Europe. Strasbourg seems good enough for the other 46 or 47 independent countries but, for some reason, it would not be good enough for Scotland. It is rather strange that every other independent jurisdiction and state accepts the role of the Strasbourg court, but the Labour Party thinks that we would be better off if we went to London.

I welcome some of the comments made by the review group in its report. Paragraph 44 says that the expert group thought that

“the existing statutory basis for bringing human rights issues to the Supreme Court was seriously flawed—‘constitutionally inept’ was the term used.”

Of course, the review group agrees.

I am surprised that some members today have ignored some of the comments in the review group’s report pointing out that there have been flaws and that there are anomalies—in fact, it talks about “striking” anomalies. I welcome the fact that Kezia Dugdale acknowledged that there was an anomaly that the review has attempted to address. However, I certainly did not agree with many of her other comments.

I thank Christine Grahame for reminding us of the history of this debate. The SNP did, indeed, argue against the creation of the Supreme Court.

We want a level playing field for our country and parity and fairness for our legal system. We certainly do not want uniformity; indeed, that is one of the dangers we face. On 8 February 2011, the then Lord Advocate Elish Angiolini told the Scotland Bill Committee:

“there is a real danger that we will have not just harmonisation of our criminal law on procedure and evidence but, indeed, a complete loss of identity for Scots law”.—[Official Report, Scotland Bill Committee, 8 February 2011; c 479-80.]

Our concern is not just about giving parity to Scots law but about the danger of uniformity and loss of independent action in it. We ignore such critical matters at our peril.

Of course, it is not only the SNP that has opposed some of the issues that the Supreme Court has raised; many others, some of whom have already been quoted, have made clear their opposition, including Ian Smart, the former president of the Law Society, and Paul McBride QC, who has suggested that in law the First Minister is right on this issue. Moreover, in October 2010, Lord Hope, who sits on the Supreme Court himself, said:

“This has ... brought the Scottish criminal justice system under judicial scrutiny in London in a way that was not, to the best of my recollection, anticipated when the Scotland Bill was being examined in Parliament.”

We have consistently repeated that argument: the original intention has been changed by the introduction of the Supreme Court and its actions. Every member in the chamber, not just SNP members, should be concerned about that. Indeed, as Graeme Dey said, we should all be standing up for the independence of the Scottish legal system.

Finally, I remind the Liberal Democrats that, when the Parliament was having this debate back in 2004 and members were arguing over whether the Supreme Court’s introduction would be a good or bad thing and discussing the impacts that it might or might not have on Scots law, they were pressed on the question whether judges from another legal jurisdiction should have a say in Scots law. Margaret Smith, who I believe was their justice spokesperson at the time—if I am incorrect, I apologise—said in the chamber:

“if the supreme court is considering a peculiarly Scottish case, there is no question of Scottish judges being in the minority.”—[Official Report, 29 January 2004; c 5312.]

That is exactly what has happened in every Scottish case that has come before the Supreme Court. Scottish judges are—and are always—in the minority. I ask that, in summing up, the Liberal Democrats withdraw that remark, apologise for it or change their position and support the proposal that, if the Supreme Court is to continue—which is obviously going to happen while we remain with the UK—Scottish judges should be in the majority when dealing with Scottish cases. That would certainly be helpful.

This is an important matter; it is not a matter for petty politics or personal abuse. I accept that there has been intemperate language both from our side and from members of other parties, but we must try to draw a line under the issue and deal with the matter in hand. It is important that we not only accept but defend the continuation of the independence of Scots law. If we lose that, we will lose one of the most precious things that we have and we will be cursed and damned by future generations for ever.

Roderick Campbell (Scottish National Party, North East Fife)

First of all, I, like others, wish to acknowledge the substantial contribution made to Scots law by the late Lord Rodger of Earlsferry, which is in my constituency. I am a member of the Faculty of Advocates; in accordance with its traditions, Lord Rodger was my great-grandfather and I knew him as a man to whom detail was very important. He had a distinguished career as an advocate and then as Lord Advocate, and from being a judge in the Court of Session, he had a meteoric rise to become Lord President and Lord Justice General. Following that, he became a law lord in the House of Lords and latterly a Supreme Court judge. Whatever our reservations about the Supreme Court’s role, we should acknowledge Lord Rodger’s substantial contribution to that court and to law in general.

Of course, Lord Rodger sat on the Cadder case. In the Cadder judgement, I was particularly struck by his analysis of the Thomson committee report and the history of the passage of sections 2 and 3 of the Criminal Justice (Scotland) Act 1980, which was consolidated in the detention provisions of sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995, which have caused such difficulties. His analysis was that the thrust of the Thomson committee’s view in the 1970s was that the public interest in the detection and suppression of crime outweighed any disadvantage to the detainee in being questioned in the absence of a solicitor. He believed that that was no longer compatible with European human rights law jurisprudence.

The High Court of Justiciary looked at the same issue in HMA v McLean and drew an entirely different conclusion as to compatibility with the European convention on human rights following the Salduz judgment.

Times move on. Human rights law jurisprudence is not static. As human rights lawyers know, the European convention on human rights is a living instrument. Although article 6 of the convention—the fair trial provision—makes no specific reference to the right not to incriminate oneself, that should now be considered an essential element of it.

Lord Rodger suggested that there was not the remotest chance that, had the European Court of Human Rights heard the argument, it would have accepted that, despite the absence of the safeguard of legal representation during interview, the detention procedure would somehow be considered to be compatible with article 6 because of the other protections of Scots law. That view is almost certainly correct, albeit that it is far easier to say that with the benefit of hindsight.

That argument was of course never tested in Europe. The European Court of Human Rights is not a criminal appeal court; it exists to ensure that minimum standards on human rights apply across its signatory countries. It does not try cases. Its primary impact is providing just satisfaction to a complainer where it finds that there has been violation of the convention. It is for the contracting state to bring about appropriate changes to domestic law that has given rise to the violation.

Accordingly, the European Court of Human Rights differs from the Supreme Court as it now exists in the UK. Notwithstanding the eminence of its members, that court has played a much greater role in Scottish criminal law than was ever realistically envisaged at the time of the passage of the Scotland Act 1998.

We have no written constitution in the UK. Had we had one, the provisions of the treaty of union in relation to criminal law could not perhaps have been so easily disregarded.

In their submission to the Advocate General for Scotland’s review of devolution issues and the acts of the Lord Advocate, the Scottish judiciary stated:

“By a series of incremental decisions … a major constitutional change has already been brought about in relation to the existence of a right of appeal from a decision of the Criminal Appeal Court to the Supreme Court, and that without the public consultation and careful consideration that such a major constitutional change might have been expected to receive. We cannot regard that as a satisfactory situation.”

Moreover, in criminal matters, the Supreme Court clearly does not operate on an equal footing in the different criminal jurisdictions of the United Kingdom. In that respect, the recommendation of the review group headed by Lord McCluskey that only cases certified by the High Court of Justiciary as raising a point of general public importance proceed to the Supreme Court is to be welcomed. There really should be no basis for allowing a second bite at the cherry for ordinary criminal appeals.

It is also inappropriate that, in relation to its fair trial review, the Supreme Court has the power to quash convictions, whereas the High Court may quash a conviction only on the basis of a miscarriage of justice. That issue needs further examination.

A central issue remains: how do we ensure that Scotland provides the level of human rights protection to its citizens that the convention requires? Although the expert group under Lord McCluskey agreed that the existing statutory basis for bringing human rights issues to the Supreme Court is seriously flawed, it does not suggest an alternative to Supreme Court jurisdiction.

Kezia Dugdale said that the group suggested in its report that the Supreme Court’s role may be to define and express the law applicable in human rights terms and then send the case back to the High Court of Justiciary to apply the law. As Lord McCluskey infers, that would also be an application in practice of the margin of appreciation principle that is central to European human rights law, which allows states—in this case, that ought to be Scotland—to apply the law in the context of their separate legal systems. Of course, that is not what we in my party would ideally prefer, but it requires further examination, which I believe the expert group indicated that it intends to carry out. I look forward to its further report in due course. I urge members to support the motion.

David McLetchie (Conservative, Lothian)

It has been a pleasure to see the cabinet secretary back in the chamber. Having ducked the opportunity to lead for the Government on its bill on offensive behaviour at football, a subject on which he was well qualified to speak, he has now turned up in a debate on the role of the Supreme Court, a subject on which his former remarks demonstrate that he is very ill qualified to speak.

However, at least the cabinet secretary is now a lot better informed, given that, as Johann Lamont pointed out, Lord McCluskey’s report has, in essence, endorsed the approach to the role of the Supreme Court that is being taken in the Scotland Bill by Her Majesty’s Government and, in particular, by the Advocate General for Scotland, Lord Wallace of Tankerness, who is a former Deputy First Minister and distinguished member of this Parliament. I remind members that that approach is to remove acts of the Lord Advocate in his role as prosecutor from review under section 57(2) of the Scotland Act 1998, and to strictly limit the role of the Supreme Court to dealing with human rights issues that arise in Scottish criminal cases.

As we know, and as we have heard throughout the debate, the Government is doing its utmost to highlight the differences between how the Supreme Court handles appeals derived from English criminal cases and how it handles those derived from Scottish criminal cases. Accordingly, the Government’s focus is on the technical recommendations in the McCluskey report on the issues of leave to appeal and special leave to appeal.

It is, of course, ironic that the reason for the different treatment of appeals north and south of the border is not disdain for the Scottish legal system or rejection of the principle that our High Court of Justiciary is the highest court in Scots criminal law—far from it. As we will see, the difference in approach arises out of respect for our system of law.

The McCluskey report rather panders to the Scottish Government’s prejudices by stating that what the Scottish Government regards as an anomaly has been neither noticed nor explained. The implication is that, somehow, the matter has been completely overlooked by Her Majesty’s Government, its expert group and the Advocate General, but it has not been overlooked at all. In fact, the Advocate General explicitly consulted and took evidence from others on leave to appeal and special leave to appeal. As Alison McInnes pointed out, such evidence taking did not form part of the McCluskey review. Interestingly, the Faculty of Advocates and the Scottish Human Rights Commission were strongly of the view that the proposed changes to the Scotland Act 1998 should not alter the present arrangement whereby the Supreme Court remains the ultimate arbiter of whether it hears a case.

Furthermore, if Scotland were to be put on the same footing as England and Wales as regards the handling of criminal cases by the Supreme Court, all criminal cases in Scotland—not merely those that deal with ECHR or Community law points—could go for appeal to the Supreme Court, as is the case in England. That has been ruled out, quite rightly, by Her Majesty’s Government. Accordingly, it is Her Majesty’s Government that is demonstrating a great deal more respect for Scots law, Scots lawyers, Scots judges and the Scottish legal system than the SNP Government, which falsely masquerades as their champion.

Nigel Don (Scottish National Party, Angus North and Mearns)

I apologise for interrupting Mr McLetchie’s flow, which is always wonderful, but I put it to him that he has just skipped over the fact that it is the result of the Cadder ruling that any procedural aspect of an investigation is reviewable and the result of the Fraser review that any evidential issue is reviewable. Are we not now in the position in which practically any Scottish criminal case can be appealed to the Supreme Court?

David McLetchie (Conservative, Lothian)

No. I am afraid that that is nonsense. A limited of number of cases could be appealed under the current system, and they will be further reduced when the reforms that are proposed in the Scotland Bill are enacted.

We have heard a lot about parity, but the argument might just be false. We have heard a great deal about how we have to maintain and sustain the distinct characteristics of Scots criminal law and procedure—in other words, we should be treated differently—but in the next minute, the call is for procedural parity with England. I am sorry, but we cannot have it both ways. No doubt there will be further detailed discussion about the intricacies of leave and special leave to appeal and about what is or is not appropriate in that context, and the arguments may be highlighted in the McCluskey group’s final report, but those arguments should be based on the fundamental principles of the rule of law and human rights, and not rooted in the girning grievance politics of Scottish nationalism.

No amount of exaggeration by Mr MacAskill and the SNP can disguise the fact that the McCluskey report is first and foremost an endorsement of Her Majesty Government’s approach. Its conclusions have made fools of the cabinet secretary and the First Minister on the issue, although they were already making a pretty good job of that all by themselves.

I remind members that the report states:

“We do not suggest that the jurisdiction of the Supreme Court should be ended.”

The report underlines the need for coherence in how human rights laws are applied north and south of the border and says that, if we had to resort directly to the European Court of Human Rights in Strasbourg, there would be potential for further uncertainty and delay. It points out that, far from cell doors being unlocked, cases are remitted back to the courts in Scotland for decision once the human rights issues have been adjudicated. Last but not least, it expressly acknowledges that the Supreme Court would continue to make final and binding rulings on human rights issues, including those that arise in criminal cases from Scotland.

Those are the conclusions of the report that was commissioned by the Scottish Government. They mean that it is game, set and match to Her Majesty’s Government, which is the Government that really respects Scots law and Scots lawyers.

James Kelly (Labour, Rutherglen)

I welcome the opportunity to take part in the debate. Like other members, I associate myself with the comments that have been made and the condolences on the sad death of Lord Rodger, who clearly made a substantial contribution to the Scottish legal system all the way back to his initial task as an advocate in 1974.

I thank Lord McCluskey and his working group for their work on the report, which addresses a number of matters, as the cabinet secretary likes to say. As Mr McLetchie said, the clear view on the Supreme Court playing a role in these issues is central to that report. Alison McInnes was correct to point out that the First Minister made it absolutely clear a few weeks ago that he thought that there was no role for the Supreme Court. The working group’s interim report is therefore a slap in the face for the First Minister.

Kezia Dugdale was correct to point out that it was logical for the working group to have reached such a conclusion. We are signatories within the UK to the European convention on human rights, and it makes absolute sense that there is a Supreme Court to ensure that the convention is applied consistently throughout the UK.

Some speeches from SNP members seemed to suggest that members still have their football scarves on from last week’s debate; it was as if we would all turn up at the Supreme Court and cheer on our preferred point of view. However, if we consider the details of some of the Supreme Court’s judgments, we see that the court is seeking to apply the law. Some SNP members have suggested that the judges sit down and think, “How can we make this awkward for Scotland? Can we come up with a judgment that will cause difficulty north of the border?” Mr Dornan protests, but that is how his contribution characterised the work of the Supreme Court.

Stewart Maxwell painted a picture and suggested that if only we were independent and, like other countries in the European Union, had access to Strasbourg, everything would be fine and dandy. However, Strasbourg has a backlog of three and a half years. If cases were referred to Strasbourg from Scotland, decisions would take three and a half years. That would add to costs and would create considerable uncertainty in the Scottish legal system.

In recent weeks, clear issues have arisen to do with the use of language and a lack of respect. The cabinet secretary mentioned outspoken public statements, but what he did not tell us was that he had been at the centre of many of them. As Graeme Pearson said, the cabinet secretary threatened to withdraw funding from the Supreme Court, claiming that he who pays the piper should call the tune. That was immensely disrespectful. Again, a footballing analogy comes to mind: the cabinet secretary and the First Minister have lost the match, but now they want to take away the ball so that it will not happen again.

Listening to the cabinet secretary’s comments on Monday, I felt that he had tried to row back from his position. I hope that the First Minister will row back from his disrespectful comments about Lord Hope. Such comments do not help the debate at all.

I feel sorry for SNP members in the way that policy has lurched back and forward in recent weeks; I am glad to see that Ms Cunningham has just joined us. Exactly a week ago, SNP members were on their feet telling us that we needed emergency legislation on sectarianism, and they characterised those of us who wanted to extend the timetable as being not fully committed to erasing the blight of sectarianism in Scotland.

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

Will Mr Kelly kindly acknowledge that some people on this side of the chamber shared his view on the timetable and made their views plain—perhaps even before Opposition members did so?

James Kelly (Labour, Rutherglen)

I take that point—but this time last week, members such as John Mason were saying that if we did not get the emergency legislation through it would be a disaster.

As I said, some public comments have now been rowed back from. SNP members must be looking forward to the recess. I hope that when we come back, the Government will have a more considered and stable view.

On human rights issues, I acknowledge the work of Sir David Edward and his group. Nigel Don referred to them as “the other side”, as if they were some dark, plotting group. There is a substantial archive of opinion there, which helps to inform this morning’s debate. That debate can be properly informed only if a consultation takes place—as it now will, under the stewardship of Lord McCluskey’s group. I do not understand why, once the group had been set up, there was a rush to produce an interim report. Some of the issues that we have discussed this morning are fundamental to the Scottish justice system. It would have made good sense to interview the appropriate people, to speak to the Edwards group and to take stock before reaching firmer conclusions.

There is an issue of ensuring that we get the law right. Richard Simpson and Alison McInnes highlighted the importance of an ECHR audit to ensure that we comply with the ECHR in any decisions that we make. It is also important that we provide proper training and support to our judges to ensure that they are adequately briefed on ECHR issues in order to minimise the instances in which Scottish law does not comply with the ECHR.

I endorse the Law Society’s view that we must take our time on these issues. We need a more considered, reasonable and well-informed debate. Scottish Labour supports proposals that make the justice system more effective and which are more supportive of the rights of victims. I look forward to the results of the work that the group will do over the summer and to its further deliberations ahead of producing a more comprehensive and complete report, informed by appropriate consultation.

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

In the main, I welcome the contributions from members. I think that there has been widespread acceptance of the issue and welcome for Lord McCluskey’s report. In a mark of respect from around the chamber, members paid tribute to Lord Rodger. It is appropriate that Lord Rodger’s passing should be marked today by elected representatives and that we should put on record our gratitude for his contribution and our sadness at his passing.

Whatever Mr McLetchie may care to say, we welcome the report. As he is aware, the perspective of the Scottish Government and the SNP is that Scotland should be an independent nation, as with other nations that are represented in Europe, in the Union and in other institutions such as the European court. The court is not, as Mr Lamont seemed to suggest, an EU institution. Ultimately, we seek to be an independent nation and to have the same rights and powers.

While we welcome Lord McCluskey’s review, it is not the position that we necessarily seek for an independent Scotland. It is a constitutional issue that will be debated again in the chamber and ultimately decided by the people of Scotland in a referendum. However, in the interim we have to deal with the good governance and management of our legal system, and the protection of those matters that are fundamental to our civic society and democracy. We think that the present situation is the best that we can achieve in a devolved Scotland, so we are grateful for the review.

I will come to the issue of whether there should have been any delay. First, I want to deal with a point raised by Graeme Pearson, who queried why we were debating the issue. This is a matter of fundamental public interest. Those of us who were members when we had to deal with emergency legislation because of Cadder and the situations that that gave rise to are aware that that was one of the drivers not just for the Advocate General’s review group, but for Lord McCluskey’s group. They are aware that circumstances continue to cause great difficulties. Indeed, there is a question from Christine Grahame at First Minister’s question time relating to the matters that trundle on from Cadder.

Dr Simpson raised the issue of AXA. That is a case based not on human rights per se but on a challenge to the competence of this Parliament. However, such matters are of fundamental relevance to the people of Scotland, to the ability of this institution and indeed to the ability of those who work in Scotland to govern.

We should not underestimate these things. I understand that the number of devolution minutes is not 14,000 but 11,700, but that figure is probably rising by the hour. This is a fundamental issue that has to be debated, which is why we are here today and why we asked Lord McCluskey and his team to consider the matter.

Concerns have been expressed that the timescale for the review group’s work is too tight and that this is simply another case of the Government rushing to take action when a more leisurely period of reflection and inquiry might have served. However, we believe that the report itself is ample evidence that such concerns are unfounded. Lord McCluskey and his eminent colleagues have made it quite clear that there is a significant problem to address. Moreover, we believe that such major issues should be brought before Parliament. Indeed, as Stewart Maxwell has pointed out, the Presiding Officer has already suggested that such matters should be taken care of in advance rather than in arrears and in any case we think that when this kind of interim report is published we should consider it.

Clearly, this process will continue. Lord McCluskey and the members of his group will be listening to the points that are made in this debate. I believe that Alison McInnes expressed concern in that respect but, as I have said, it has been made clear that further evidence can be taken. Of course, as others have pointed out, Lord McCluskey and his colleagues looked at the evidence that had already been taken. They did not just get together on a whim or fancy. Significant evidence had been submitted both to them and to the expert group and although some might disagree with some of Lord McCluskey’s directions of travel, no one, not even Amnesty International or the Scottish Human Rights Commission, has disputed that there was an issue that had to be discussed and debated. We welcome the current position and approach.

Johann Lamont said that the situation regarding leave to appeal is not universally accepted. That is the case with some in the Scottish Human Rights Commission and elsewhere; however, even Brian McConnachie, who is vice-chairman of the Faculty of Advocates criminal bar association and someone who has been quite critical of the First Minister, said in The Times that, with regard to certification, it would be very difficult to argue that we should have something different here. Even those who might disagree with Lord McCluskey’s direction of travel or this Government’s desires recognise that this issue has to be addressed.

Johann Lamont (Labour, Glasgow Pollok)

We can all pick people to reinforce our position. The view on the Labour benches is that there is an argument to be had and that we need to reflect on the serious views that have been taken from a range of people about what the solution might be. It is inaccurate to say that there is a need to establish the leave to appeal in the way that the cabinet secretary has suggested. Instead of simply pulling out people to support our individual position, which does not progress the matter at all, we want people to come to a judgment by having an open mind and listening to all the evidence.

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

That is precisely why we are having this debate. Labour members cannot have it both ways; I do not think that they can criticise us for not providing an opportunity to discuss matters and then criticise us for having this debate at all. If we were not having this debate, the issues would not be brought out. I am sure that Lord McCluskey and his colleagues will consider these issues over the summer as they receive further evidence and representations, and it is a tribute to them that they have come along to listen to the debate. The points that have been raised will undoubtedly be borne in mind.

A number of Opposition members have clearly taken some comfort from the suggestion that the report does not go in the direction that would be taken by a Government in an independent Scotland. However, we should recognise that the current direction of travel—that the current situation is untenable and that we have to make progress—is becoming the majority position and has certainly been endorsed by Lord McCluskey and his colleagues.

David McLetchie seemed to be hiding behind the fact that there are clearly differences between Lord McCluskey’s review and the report of the Advocate General’s expert group. However, let me be quite clear: the review group report has taken explicit account of the work that the Advocate General’s advisers have carried out and, in doing so, has developed and moved beyond that analysis. The review group has identified what it has described as “a striking anomaly” in the current arrangement governing leave to appeal and I am sure that Johann Lamont will take that point on board. As the report makes clear, there is no evident reason why the High Court of Justiciary should be subject to a regime that is significantly different from that which applies in England and Wales and in Northern Ireland.

Despite a clarity of insight that identified the root of the problems in the Scotland Bill, the Advocate General’s advisers did not pursue the full implications of their analysis. What was lacking from the advice on which the Advocate General based the amendments that were tabled to the Scotland Bill was a proper exploration of the discrepancy in which leave to appeal can be granted. Those are crucial points of detail.

The review group’s work was robust and convincing, and it is practical in its application. The speeches from this morning’s debate tell me that I am not alone in thinking that, and I am confident and convinced that the further work that the group intends to do over the summer will produce further refinements to its advice, which will provide a sound, reliable basis on which more relevant legislative changes to the Scotland Bill than are currently on offer from the UK Government can be pursued. That is another point that Ms Lamont must take on board.

Those matters do not exist in isolation from what is happening elsewhere. The Advocate General—as trumpeted by Mr McLetchie—is tabling amendments to the Scotland Bill. If it is perceived that those amendments are deficient—and that is clearly the case, judging from what Lord McCluskey and many others have said—we require to ensure that appropriate further amendments are tabled. If we were not having this debate, there would be a danger of not having appropriate time to consider, reflect and prepare amendments.

The matter cannot be delayed. There will doubtless have to be further discussions, whether they are on the report that is before us or on the Scotland Bill as it goes through Parliament. These matters require to be dealt with, in any event.

I point out to Mr McLetchie that, as Lord McCluskey said, the Faculty of Advocates and the Scottish Human Rights Commission said that they were not really satisfied with the position—I think that Lord McCluskey took that on board. That point is being addressed.

We must be conscious that there is a difficulty, and that is why the review group was set up. I say to Alison McInnes that the group was set up with terms of reference that were prescribed not by us but by Lord McCluskey. The group was not tasked simply with determining the matter of final appeals in Scotland; it was to consider how the Scottish legal system should be protected and how it can work in the current devolved system of the United Kingdom.

Alison McInnes raised the question of an audit of Scots criminal law. It has previously been examined by the Crown, but the First Minister has said that, in his view, that would not necessarily be a bad idea. In discussion with the Lord Advocate, and once we have seen Lord Carloway’s review, we will be happy to consider where we can take that idea.

John Lamont seemed to suggest that we should appoint a further Scottish judge to the United Kingdom Supreme Court. As was pointed out by Stewart Maxwell, we do not have that right—that is a matter that goes through formal procedures, which are not the responsibility of the Government. It is only a convention that there should be two Scottish judges in the court—there is nothing in statute about it. In any event, it is our understanding that, when the court sat, it was a bench of seven.

That covers the position that we find ourselves in. The situation is not one that anybody anticipated—whether at the time of the signing of the treaty of union or at the time of drawing up the Scotland Bill that set up this institution. It is not a question of apportioning blame on individuals about where we are; it is about realising that there is a fundamental concern. The Cadder position caused concern and, whatever Graeme Pearson might say about Salduz v Turkey, the matter had been considered by a High Court of seven judges in Scotland, and the position was accepted as being appropriate in Scots law and as being compliant. That started not under my Administration, but when there was a Liberal-Labour Administration. No justice secretary and no Lord Advocate under that previous Administration thought that the Scots judges were out of kilter. For those parties to criticise the Scottish judges for not acting, when they formed the Administration, is frankly unacceptable. There is an issue there.

Scots law has to be given parity with jurisdictions elsewhere in the United Kingdom. That is accepted by the likes of Brian McConnachie, who is no supporter of either myself or, indeed, the First Minister.

The Supreme Court has a role in a devolved Scotland, as we accept, until that is changed by the outcome of a referendum. It should be for the High Court of Justiciary ultimately to apply the law in Scotland. Matters can be considered and the law decided by the Supreme Court; the ultimate applier of it in Scotland has to be the High Court of Justiciary. That is what was meant when we signed up to the treaty of union. That is what was meant when we signed up to the Scotland Act 1998 and to forming this Parliament. That is what was meant when the Human Rights Act 1998 was passed and the Supreme Court was established. That is why there has to be change. That is why this matter has been brought before the chamber.

Transport Infrastructure (South-east Scotland)

Jim Hume (Liberal Democrat, South Scotland)

1. To ask the Scottish Executive what plans it has to improve the transport infrastructure of the south-east of Scotland. (S4O-00082)

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

The Scottish Government is taking forward a range of transport infrastructure improvements that will benefit the south-east of Scotland. The Forth replacement crossing and the Edinburgh to Glasgow railway improvements programme are progressing well. We are fully committed to delivering the Borders railway project, which will reconnect communities in Midlothian and the Scottish Borders to the national rail network for the first time in more than 40 years. We have recently completed significant road improvements on the A68 Dalkeith bypass and the A7 at Auchenrivock. Our motorway and trunk road programme contains further planned improvements for the A68 and the A702. In the longer term, the strategic transport projects review has identified a number of transport improvements that will benefit the south-east of Scotland.

Jim Hume (Liberal Democrat, South Scotland)

When work began on the Haddington to Dunbar expressway nine years ago, it was claimed by the then deputy transport minister that it would

“plug the dual carriageway gap between Edinburgh and Dunbar”

and benefit local communities between Dunbar and the border.

Tricia Marwick (None, Mid Fife and Glenrothes)

Can we have a question, Mr Hume?

Jim Hume (Liberal Democrat, South Scotland)

Yes, of course.

On the Scottish A1 section, 40 per cent of accidents were between Dunbar and the border. Will the minister provide some welcome good news to the communities of East Lothian and the Borders and confirm that the Government will finally explore the feasibility of plugging the remaining gap in the dualling of the A1?

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

I am happy to meet the member to discuss that, but I have just laid out some positive news for the people of the Borders and the south of Scotland. The Forth replacement crossing is a not insubstantial project and nor is the Edinburgh to Glasgow railway improvements programme, which is costing around £1 billion. The Borders railway project, which has been progressed under this Government, will connect the area to the network for the first time in 40 years at a cost of about £300 million. I also mentioned road improvements, which I know are deeply appreciated in that part of the country. However, I am happy to meet the member to discuss the issue that he raises.

Paul Wheelhouse (Scottish National Party, South Scotland)

Another pressure in the south of Scotland is that on the provision of rural bus services. Does the minister agree that, if pressure is to be taken off rural bus services, which are struggling to cope with high fuel prices, it is time that the Tory and Lib Dem coalition in Westminster took action to reduce those prices?

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

That is certainly a huge issue. When we debated it in the Parliament, we had a remarkable degree of consensus across the parties—I believe that the Liberal Democrats were part of that consensus, as were the Conservatives. Of course, we have still not had the action that we asked for, which was a meaningful reduction in fuel duty. The fuel duty rate is putting up prices not just for passengers but for all members of the public. The member is right to highlight that.

Crown Estate (Freshwater Salmon Fishing Rights)

Adam Ingram (Scottish National Party, Carrick, Cumnock and Doon Valley)

2. To ask the Scottish Government what its position is on the future ownership of freshwater salmon fishing rights in Scotland held by the Crown Estate. (S4O-00083)

Richard Lochhead (Scottish National Party, Moray)

Last week, the Scottish Government published proposals to amend the Scotland Bill to devolve responsibility for the Crown estate in Scotland. That will ensure that Scotland’s assets are managed in Scotland for the benefit of all Scotland’s people. Once management of the Crown estate is devolved, the Scottish Government will consult stakeholders and the wider public on proposals to involve local authorities and communities in decisions about our marine resources, including Scotland’s iconic salmon fishing rights that are held as part of the Crown estate.

Adam Ingram (Scottish National Party, Carrick, Cumnock and Doon Valley)

No doubt the minister will be aware of the work of the Highlands and Islands-based Crown estate working group back in 2006. Among the recommendations that the group made was that the Crown’s feudal rights be abolished and that ownership of salmon fishing be transferred to the Scottish ministers and a scheme introduced for appropriately constituted local angling associations to acquire the beats that they currently tenant.

Adam Ingram (Scottish National Party, Carrick, Cumnock and Doon Valley)

Does the cabinet secretary agree?

Richard Lochhead (Scottish National Party, Moray)

The member highlights some very good points that go right to the heart of the debate about why the Crown estate should be managed in Scotland and not by Westminster. Of course, the Liberal Democrats, who supported the report that was published by Highland Council, can now stick to their word and fulfil their promise to support the devolution of the Crown estate to Scotland.

Of course our angling clubs and others should have a role in the consultation that we promised to hold in this Parliament once the Crown estate is devolved. We all agree that we have to democratise the management of our salmon fishing rights and the other assets managed by the Crown Estate in Scotland.

Rob Gibson (Scottish National Party, Caithness, Sutherland and Ross)

Does the Government have any plans to review salmon fishery boards in order to get more democratic control and transparency, in the interests of all species in each river catchment area?

Richard Lochhead (Scottish National Party, Moray)

That is another good point. Yes, we have plans to review this whole area over the course of this session of Parliament, as outlined in our manifesto. We can all agree that there have been some improvements to the composition and role of the fishery boards in recent years, but it remains the case—I think that many of them would accept this—that their structures are outmoded. We need structures that are fit for purpose in the 21st century.

Tourism (Growth)

Gavin Brown (Conservative, Lothian)

3. To ask the Scottish Executive what plans it has for promoting growth in the tourism industry. (S4O-00084)

Fergus Ewing (Scottish National Party, Inverness and Nairn)

The Scottish Government is determined to maximise the growth of tourism and attract new visitors to Scotland. In doing so, we are committed to supporting the tourism industry and we continue to work with it and our agencies to develop and promote Scotland as an all-year-round tourism destination. Just this week, I brought together key players in business tourism from across Scotland to review what opportunities there are to grow this sector. We are also determined to make the most of our key tourism assets and are committed to further developing and promoting activity, ancestral, cultural and food and drink tourism.

Gavin Brown (Conservative, Lothian)

What is the current status of the ambition for 50 per cent growth of the tourism sector by 2015?

Fergus Ewing (Scottish National Party, Inverness and Nairn)

We are of course ambitious for Scotland to achieve even greater success in tourism. The 50 per cent target was set before the onset of the global recession, as Gavin Brown will know. The figure was based on the then estimates of world tourism growth. Despite that, however, Scotland has done pretty well in tourism of late. In spite of the recession, the heavy snowfall and the volcanic ash cloud, which brought our airports to a standstill, overall visitor spend in 2010 was down by less than 1 per cent compared to 2009. We are of course looking towards the winning years in securing a number of world-class events for Scotland, including the Ryder cup, the Commonwealth games and the year of homecoming in 2014. There is much to be positive about.

Geothermal Energy

Colin Beattie (Scottish National Party, Midlothian North and Musselburgh)

4. To ask the Scottish Executive what plans it has to promote the development of geothermal energy. (S4O-00085)

Fergus Ewing (Scottish National Party, Inverness and Nairn)

The “2020 Route Map for Renewable Energy in Scotland”, which I published today, states that we will commission a study to examine the potential of deep geothermal in Scotland.

Colin Beattie (Scottish National Party, Midlothian North and Musselburgh)

Is the minister aware that—as far as I can discover—the most recent comprehensive feasibility study on geothermal opportunities in the Lothians was carried out some five years ago? I have no doubt that he is aware that Scotland’s industrial heritage has resulted in a large number of flooded mine workings, including in my constituency of Midlothian North and Musselburgh—

Colin Beattie (Scottish National Party, Midlothian North and Musselburgh)

Given the huge increase in energy prices, does the minister consider that there might be an opportunity to revisit the feasibility of that energy source?

Fergus Ewing (Scottish National Party, Inverness and Nairn)

I was aware that the research is now five years old. That is why we are commissioning further work to provide certainty for the industry to exploit this potential. We fully recognise that, in particular, ex-mining areas offer great opportunities for geothermal energy. We are therefore determined to take that form of renewable energy forward.

Scottish Water (Coastal Pollution)

Roderick Campbell (Scottish National Party, North East Fife)

5. To ask the Scottish Government what recent discussions it has had with Scottish Water in connection with coastal pollution in Fife. (S4O-00086)

Stewart Stevenson (Scottish National Party, Banffshire and Buchan Coast)

The Scottish Government has regular discussions with Scottish Water regarding its operations and the delivery of its capital investment programme.

Roderick Campbell (Scottish National Party, North East Fife)

The minister should be aware that there is a Scottish Water waste pumping station adjacent to the shore in Pittenweem, which is designed to transport waste to the treatment works at Pathhead. Overflow pipes from that facility are designed to carry material into the sea during those periods when the pumping system is over capacity. Given the worsening problems with effluent leakage from those overflow pipes—

Roderick Campbell (Scottish National Party, North East Fife)

—directly on to the beach, will the minister undertake urgent discussions with Scottish Water?

Stewart Stevenson (Scottish National Party, Banffshire and Buchan Coast)

We are looking at including waste sewage in the programme for Scottish Water from 2015. The previous programme focused on internal sewage flooding, but it is increasingly important that we regard external flooding as important. Ministers are already in discussion with Scottish Water on that subject.

High-speed Rail Link

James Dornan (Scottish National Party, Glasgow Cathcart)

6. To ask the Scottish Government what recent discussions it has had with the United Kingdom Government regarding the possibility of a high-speed rail link with Scotland. (S4O-00087)

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

That is the subject of on-going dialogue. Officials held a meeting with the Department for Transport and the High Speed Two company as recently as last week, on Thursday 23 June. For my part, I have spoken with the Secretary of State for Transport on the issue, and we plan to hold further ministerial discussions in the near future.

James Dornan (Scottish National Party, Glasgow Cathcart)

Does the minister agree that a high-speed rail link would greatly benefit Scotland’s economic growth and would do so far more than the proposed tram system in Edinburgh, which is a shambles, or the hugely expensive Glasgow airport rail link, both of which were supported by all the main Opposition parties in the chamber?

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

The important point that the member raises is about costs and benefits. He is right to say that the high-speed rail option really only makes sense for Scotland if it comes here—that is when Scotland will get the biggest dividends—so it should do so.

I will leave it to others to talk about the benefits of trams in Edinburgh.

It is a question of ensuring that the benefits are disproportionate to the costs and that we gain a massive advantage from the project, which has happened with the M74. The same can happen with high speed 2 if there is the political will at Westminster to make it happen.

John Scott (Conservative, Ayr)

Improved rail connections between Scotland and England would be very welcome, but it is equally important to improve rail connections within Scotland. On that basis, could the minister provide an update on the Scottish Government’s plans in the strategic transport projects review to increase the frequency of rail services on the Ayr to Glasgow line, which is an improvement that is vital in the interests of local rail commuters and in support of the growing Ayrshire tourism economy?

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

Yes, I could, although it would take some time. As the member will know, the frequency of those trains has increased and there have been improvements in the infrastructure. I will be happy to write to the member on the detail of that, if he would like.

Research and Development Investment (South of Scotland)

Paul Wheelhouse (Scottish National Party, South Scotland)

7. To ask the Scottish Government how much it and the Scottish Further and Higher Education Funding Council invested in research and development in the south of Scotland in 2010-11 and what share this represented of such investment across Scotland. (S4O-00088)

Michael Russell (Scottish National Party, Argyll and Bute)

The Scottish funding council invested £305 million in research across universities in Scotland in the academic year 2010-11. That included support for the Scottish Borders campus of Heriot-Watt University and the Crichton campus of the University of Glasgow and the University of the West of Scotland. An additional £140 million in Government and business research and development was invested in Scotland in 2008-09, the most recent year for which figures are available.

Paul Wheelhouse (Scottish National Party, South Scotland)

A report that I co-authored in 2008 for Scottish Enterprise indicated that just 0.2 per cent of the research and development funding that was invested through universities was invested in the south of Scotland. Will the cabinet secretary meet me to discuss the significance of that issue for the competitiveness of the south of Scotland economy?

Michael Russell (Scottish National Party, Argyll and Bute)

I would be very happy to meet the member. Although the situation is patchy, there are some significant investments. For example, the chemical company DuPont Teijin Films is being supported to invest in a research and development programme in Dumfries that aims to understand polyester chemistry with a view to delivering the desired weatherability. The Agenor Technology investment in information technology is highly significant, too, as is some of the spending on the college and university sector, including that on the new aeronautical engineering centre that has been built in collaboration with the University of the West of Scotland in Ayr. However, I would be happy to meet the member to discuss the issue further.

Antisocial Behaviour

Linda Fabiani (Scottish National Party, East Kilbride)

8. To ask the Scottish Government what sanctions are available to local authorities in cases of antisocial behaviour by tenants of private landlords. (S4O-00089)

Roseanna Cunningham (Scottish National Party, Perthshire South and Kinross-shire)

The Government’s approach to tackling antisocial behaviour, “Promoting Positive Outcomes”, was published jointly with the Convention of Scottish Local Authorities in March 2009. That approach was most recently debated, and agreed, by the Parliament in December 2010.

A number of sanctions are available to local authorities in tackling antisocial behaviour. Specifically, antisocial behaviour notices provide powers for a local authority to act against a private landlord in connection with the antisocial behaviour of the tenant or other occupant.

Linda Fabiani (Scottish National Party, East Kilbride)

Does the minister agree that, too often, victims are evacuated instead of perpetrators being evicted, and that home owners can feel well and truly stuck? Might it be worth while to have a joint information campaign involving Government and local authorities so that this menace in too many of our communities can be dealt with?

Roseanna Cunningham (Scottish National Party, Perthshire South and Kinross-shire)

A joint information campaign would obviously be helpful because it seems that the range of options that are available to local authorities is not particularly well known to the local authorities or those on the other side of the matter. Applications can be made by the local authority to the sheriff court for orders, and if there is a misunderstanding by local authorities about their powers in that regard, it would be helpful if I could have a discussion with the member so that we can try to resolve that misunderstanding.

Uncollected Fiscal Fines

James Kelly (Labour, Rutherglen)

9. To ask the Scottish Executive what action is being taken to collect uncollected fiscal fines. (S4O-00090)

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

The Scottish Government brought forward the legislation enabling the appointment of fines enforcement officers and fully supports the Scottish Court Service’s robust approach to the enforcement of financial penalties. Payment rates are improving all the time as offenders realise that they cannot hide from their responsibility to pay their fines. In addition, we have commissioned an independent evaluation of the fines enforcement process to explore the effectiveness of the provisions and inform further developments in practice.

James Kelly (Labour, Rutherglen)

Recent Scottish court statistics showed that there are more than 11,000 payments in arrears, which are worth £4.6 million. What mechanisms are in place to identify frequent fine defaulters and assess whether they are appropriate for fiscal fines?

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

Operational responsibility for the collection of fiscal fines is a matter for the Scottish Court Service, which is an entirely separate body. As the Scottish Court Service has explained, collection rates for fines that are imposed vary, and the point refers to individuals. These are matters in which we have to strike a balance. There are those who might be described as dysfunctional and on whom it might be difficult to impose a fiscal fine. Equally, it would be perverse if they were to be put through a system that would not necessarily apply to others. As I said, there is a matter of balance. We must allow those at the front line in the court system to exercise discretion. The constable must exercise discretion in the first place, and the sheriff must exercise discretion with regard to the issuing of fiscal fines. They must consider the circumstances relating to the offence, the effect on the victim and the situation of the perpetrator.

The current review will seek to improve matters. In discussion with the Scottish Court Service, we are always open to new and innovative measures, such as confiscating vehicles, as well as simply enforcing the fine.

Judges (Appointment)

Margo MacDonald (Independent, Lothian)

10. To ask the Scottish Executive whether it plans to legislate for the election rather than appointment of judges. (S4O-00091)

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

The Scottish Government has no plans to legislate for the election rather than appointment of judges.

Margo MacDonald (Independent, Lothian)

I am relieved by that reply. My concern was that, during the recent exchange of opinions with some on the Scottish bench, an inference was drawn that the First Minister had referred to the possible election of judges. I am glad to hear that that was a wrong inference.

Kenny MacAskill (Scottish National Party, Edinburgh Eastern)

Yes. I am grateful for the tenor of Margo MacDonald’s reply. Earlier, the chamber united in its sympathy for the loss of Lord Rodger of Earlsferry, and I think that there is a measure of respect between ourselves and the judiciary.

Engagements

Iain Gray (Labour, East Lothian)

1. To ask the First Minister what engagements he has planned for the rest of the day. (S4F-00086)

Alex Salmond (Scottish National Party, Aberdeenshire East)

If I may, Presiding Officer, at this last meeting of the Parliament before the summer recess, I would like to say a few words about Iain Gray. He has served his party with great distinction, as a minister and as leader of the Opposition. His approach on key issues has been constructive. Recently, he has offered support to tackle sectarianism and to deal with the problems that are associated with alcohol in our society. Relevant to today, he has joined us in expressing concern about the United Kingdom’s approach to public sector pensions. His approach has certainly been appreciated and I hope that his successor, whoever that may be, will continue in the same distinguished vein. The Parliament owes Iain Gray a debt of gratitude for his public service. [Applause.]

Iain Gray (Labour, East Lothian)

We have not set a date for the election of my successor yet, but nonetheless I take those remarks in the spirit in which they were made.

In the time in which we have faced each other, the First Minister and I have often talked about the national health service. The First Minister and Nicola Sturgeon have told us that they are protecting the NHS, yet this week we found out that, in the past six months, 1,600 NHS jobs have gone. Of those, 700 are nurses and midwives—the very people on the front line of patient care. The Royal College of Nursing called that “unsustainable”. Why is the First Minister not protecting the NHS as he promised he would?

Alex Salmond (Scottish National Party, Aberdeenshire East)

As Iain Gray knows, we have guaranteed that all consequentials will go to the national health service. That was not a universal view when the issue was debated last autumn. I remember that Iain Gray himself, on “Newsnight Scotland” on 8 September 2010, said:

“We wouldn’t ring fence the health budget.”

The protection of the health budget has meant that, even in these difficult times, health employment in every single category—through medical consultants, general practitioners, dentists and nurses to allied health professionals—is substantially up today on the level that we inherited in 2007.

Iain Gray (Labour, East Lothian)

The First Minister needs to examine the statistics that he has given to make sure of their veracity. The fact is that there are fewer nurses and midwives in the NHS now than there were at the end of 2007-08, which was the period of the last budget of the Labour Administration that was in office up to 2007.

It was not just nurses who got big promises that the First Minister would protect them. In March, he announced:

“if the people return me as first minister, then I will secure that prize—of no compulsory redundancies”.

He said specifically that he was talking about local government, schools, colleges and the health service. Fifty staff at Edinburgh’s Telford College are facing compulsory redundancy. The chances are that some of them voted for Alex Salmond on the basis of that promise. He has his job as First Minister, but they are getting P45s. This Tuesday, Michael Russell told a parliamentary committee,

“I have no power to enforce the policy”,—[Official Report, Education and Culture Committee, 28 June 2011; c 26.]

so why did Alex Salmond make the promise?

Alex Salmond (Scottish National Party, Aberdeenshire East)

I want to correct Iain Gray on the health service statistics. The number of consultants, on a full-time equivalent basis, is up by 20 per cent from September 2006.

Members: 2006!

Well, that is on the basis of the term of the previous Scottish National Party Administration.

The number of general practitioners is up by 7.2 per cent, the number of nursing and midwifery staff is up by 383; the number of dentists is up by 20 per cent and the number of allied health professionals is up by 9 per cent. That is a comprehensive increase. Even under the most difficult and severe Westminster-induced budgetary cutbacks, our decision to pass on the full consequentials and to ring fence the national health service budget shows that we are maintaining and sustaining that level of investment in our staff in the national health service.

As Iain Gray well knows, the no-compulsory-redundancy pledge was made to our 30,000 central Government staff and to the hundreds of thousands of people who work in the national health service in Scotland. That pledge is not available elsewhere in the United Kingdom and nor, incidentally, is that a new phenomenon. I have quotes here from 2006 when Tony Blair, the then Prime Minister, said in answer to a question that it was all right, because there would be only a few hundred compulsory redundancies in the national health service in England. Do not let us believe that compulsory redundancies south of the border started as a Tory-led initiative.

We have applied the policy in the areas that we directly control. As Iain Gray well knows, the colleges, thanks to a statute passed by the Labour Party when it was in government, are independently run in Scotland. The Cabinet Secretary for Education and Lifelong Learning gives them advice. I hope that colleges throughout Scotland will take that advice.

Iain Gray (Labour, East Lothian)

Mike Russell was right and the promise was worthless.

As for directly employed employees, what about the 16 Caledonian MacBrayne workers who are redundant today? CalMac is a company that is wholly owned by the Scottish Government. Those workers are employed by a company that is owned by the Scottish Government and they are redundant today.

If promises to nurses and college staff were worthless, what about teachers? Paul Bisland is a newly qualified teacher who, no matter how hard he tries, cannot get a job, and 80 per cent of his colleagues are in the same boat. Mr Russell wrote personally to Paul Bisland in January and promised him that

“there will be a sufficient number of vacancies for all teachers seeking employment in 2011”,

so where are they?

Alex Salmond (Scottish National Party, Aberdeenshire East)

Can I just correct Iain Gray? As a point of fact, there are no compulsory redundancies in Caledonian MacBrayne. I hope that he accepts that. It is not appropriate to come to the chamber and make an announcement that is absolutely not true. There are no compulsory redundancies.

There are areas in which our advice to other public bodies has prevailed. I am thinking of James Watt College, which, after some debate, accepted the policy of no compulsory redundancies. Recently, I even heard the leader of Inverclyde Council on air reversing his policy of compulsory redundancies. Iain Gray should not underrate the ability of exhortation of ministers in this Administration to persuade even the most recalcitrant Labour authority to follow such a policy. Incidentally, among the groups that we have not yet convinced of the value of our policies are some Labour-led councils in Scotland that, as we know from many previous debates, are responsible for the vast majority of the decline in teacher numbers in Scotland.

Iain Gray (Labour, East Lothian)

This is the pattern, is it not? The First Minister makes the promise and then blames someone else when he breaks it.

When the First Minister made his announcement of no compulsory redundancies in March, he said that he would spend every day trying to deliver the policy. Is the problem not that he has spent every day doing something else? I do not deny that he has been busy, what with non-stop constitutional bickering over his referendum, gratuitously insulting Supreme Court judges and, let us not forget, introducing a bill on sectarianism so badly drafted that his own minister could not explain it.

There has been intransigence, intemperance and incompetence, and, all the time, indifference to cuts in the number of nurses, redundancies in colleges and teachers on the scrapheap. All they get are excuses. When is he going to get off his personal agenda and start paying some attention to the promises of jobs and services that he made to the people of Scotland only six weeks ago?

Alex Salmond (Scottish National Party, Aberdeenshire East)

I recognise that rhetoric—it is a throwback to some 50 days ago. It is what Iain Gray was arguing in the election campaign.

Let us reflect on some of the things that have happened since the election campaign. Unemployment fell by 10,000 over the quarter—the seventh consecutive reported fall in Scotland. Official statistics show that, for the fifth successive year, Scotland is in a stronger budgetary position than the United Kingdom as a whole. What about some specific announcements that I know Iain Gray is dying to welcome? Amazon has created 900 jobs in Scotland. State Street has established its European centre of excellence here. Gamesa, one of the great companies in the renewables revolution, has announced the start of its recruitment programme in Scotland. I know that, in his current position, Iain Gray is not able to welcome those signs of positive achievement under the most adverse circumstances, but I also know that when he is in a different position—when he is less committed and is able to take a judicious view of such matters—he will be the very first to welcome the positive achievements of this Administration.

Prime Minister (Meetings)

Annabel Goldie (Conservative, West Scotland)

2. To ask the First Minister when he will next meet the Prime Minister. (S4F-00077)

Alex Salmond (Scottish National Party, Aberdeenshire East)

If I may, Presiding Officer, at this last meeting of the Parliament before the summer recess I would like to say a word or two about Annabel Goldie. Last month, I said that I will miss enormously the wit with which she pursues her case and her cause at First Minister’s question time, although I might not miss being on the receiving end of it so often. Under her stewardship in the previous parliamentary session, the Tories supported the Government in delivering 1,000 extra police on the streets of Scotland, the small business bonus and greater support for and co-ordination of Scotland’s drug rehabilitation programme, subjects that I know are very close indeed to Annabel’s heart. I have thoroughly enjoyed my weekly jousts with her and wish her every success in all her endeavours in the future.

Annabel Goldie (Conservative, West Scotland)

I thank the First Minister for his very gracious comments. I am glad that he has enjoyed the experience of the exchanges with me at First Minister’s questions, because I am coming back in September. From his adulation, I felt a little apprehensive that he might not be. Nonetheless, I thank him for his comments.

Why, according to a recent report from the United Nations, does Scotland top the list of world cocaine use? Why are there 712 fewer nurses and midwives in Scotland than there were last year? Why is childhood obesity escalating? Why do only 7 per cent of reported rapes end in conviction? Clearly, the First Minister has taken his eye off the ball, preferring to grandstand on the Supreme Court, pick fights with Westminster and provoke constitutional tension. Why has he allowed this appalling catalogue of failure to happen right here in Scotland under his watch?

Alex Salmond (Scottish National Party, Aberdeenshire East)

I do not accept Annabel Goldie’s strictures in that respect. However, I am delighted to find that she will be back after the recess to upbraid me more on these issues. Incidentally, I hope that she reconsiders her entire position and decides to make her comeback permanent. The Conservative Party would be well advised to compare Annabel’s talents with the available alternatives. [Laughter.]

Miss Goldie has nevertheless given me ample opportunity to talk about certain things that she will have noticed. With regard to the health service, in particular, the most recent announcement on waiting time targets, which came at the end of last month, showed that 99.9 per cent of patients are waiting 12 weeks or less for their first out-patient appointment. People with drugs problems continue to access treatment more quickly; indeed, waiting times show that 94 per cent are offered an appointment within four weeks of referral. Although many of the issues that Annabel Goldie has referred to are deeply structured in Scottish society, I know that she will be the first to welcome the positive signs of improvement.

In fairness, Miss Goldie will acknowledge that we face extraordinarily difficult times in public spending in Scotland. That might—just might—have something to do with the £1,300 million of cuts that the Westminster Government is implementing.

Annabel Goldie (Conservative, West Scotland)

Time and again, the First Minister has proclaimed the virtues of free university education, with his mantra being

“the ability to learn, not the ability to pay”.

However, he never told us that his mantra comes with the small print, “Does not apply to students from England, Wales or Northern Ireland and does not plug the funding gap”. Is that not the most brazen and barefaced sell-out of his so-called political principle? It is patently divisive; hypocritical, because it would not even be possible in an independent Scotland; hugely damaging to the welcome tradition of United Kingdom students studying in Scotland; and utterly ineffective in plugging a widening funding gap of more than £200 million. Will he abandon his little Scotlander mindset and bring forward serious proposals for the long-term funding and sustainability of our Scottish universities?

Alex Salmond (Scottish National Party, Aberdeenshire East)

Annabel Goldie knows full well that the circumstances in which we have been placed by decisions of the Conservative-Liberal Administration at Westminster mean that we cannot possibly fund the fees of students from elsewhere in these islands, no more than we can fund free personal care or prescription charges for the people of England. I do not understand why Annabel should think that we have ever argued anything other than that. The only change is that we wanted to have a £6,000 fee across the board, but we were persuaded by the university principals and Universities Scotland that the better way to go was the one that was outlined by the Cabinet Secretary for Education and Lifelong Learning.

I therefore find what Annabel Goldie has said surprising. Time after time, she has upbraided me with quotes from principals from across Scotland who have not been in support of our policy—she has said. Virtually every principal in Scotland has supported Michael Russell, as has the Scottish Youth Parliament. I have with me quotes from Tim O’Shea of the University of Edinburgh, Professor Ian Diamond, the principal of the University of Aberdeen, and professors at the University of Glasgow, Robert Gordon University and the University of the West of Scotland, all supporting the announcement that the education secretary made yesterday.

I will quote from one of them—from Annabel Goldie’s very favourite principal, Anton Muscatelli. She will recall promoting the views of Professor Muscatelli as she was attacking Government policy last autumn. He said today:

“We fully support the Scottish Government moving quickly to address the issue of non-Scottish UK student fees in light of the UK coalition Government’s increase of fees south of the border ... The measures outlined by the Scottish Government play a part in ensuring Scotland’s universities maintain their world class offering.”

Why has Annabel Goldie deserted Anton Muscatelli at this crucial time? She will remember quoting him and upbraiding me about my lack of Latin only a few short months ago. I say to Annabel on what she does with regard to the future leadership of the Conservative party, carpe diem—seize the day.

Tricia Marwick (None, Mid Fife and Glenrothes)

We will now have constituency questions.

Marco Biagi (Scottish National Party, Edinburgh Central)

The First Minister will be aware of today’s announcement by Lloyds Banking Group of 15,000 job losses, focused on offices rather than branches. Many of those offices are in my constituency. I ask the First Minister to contact Lloyds urgently for reassurances and clarity for Scotland-based staff, who woke up to uncertainty this morning.

Alex Salmond (Scottish National Party, Aberdeenshire East)

We have pursued meetings with Lloyds Banking Group, and we have been in touch with Lloyds again this morning; John Swinney will be speaking to its representatives again this afternoon. I hope that it helps the constituency member if I say that Lloyds has given us a statement saying that it expects the reductions to take place without using compulsory redundancy. Lloyds pledges to

“continue to work with the Scottish Government’s Financial Services Jobs Taskforce to ensure maximum levels of employment are retained across the wider financial services industry in Scotland.”

These are difficult times for Lloyds staff. If I can offer one element of hope, however, I have with me a set of workforce statistics for the financial sector. After the financial crisis, employment in the financial sector in Scotland fell from 107,000 right down to 92,000. According to the latest statistics, which were released just last week, the number had risen back to 106,000, thanks to many announcements from a range of financial services companies in Scotland. Some of the work that has been done, both in promoting the financial services sector in Scotland and successfully attracting jobs, and in placing people who had been released from our major clearing banks, is thanks to the Financial Services Advisory Board and the task force that was established to make that possible.

I am pleased that, in these difficult circumstances, Lloyds Banking Group has said that it will work fully with the financial services jobs task force to minimise compulsory redundancies and to maximise levels of employment in the Scottish financial sector.

Siobhan McMahon (Labour, Central Scotland)

Is the First Minister aware of the recent decision to withdraw preferred bidding status from St Philip’s secure unit in Plains? Is he aware that, as a consequence of the decision by the Cabinet Secretary for Justice, the unit will cease to operate tomorrow, resulting in its 259 staff being made compulsorily redundant, leaving many vulnerable children without the necessary support services? Is he aware that, although the staff were advised by Alex Neil that a task force was being set up, Skills Development Scotland has denied that? What support is the Government offering to the staff at this time? What transitional arrangements are in place for the children?

Alex Salmond (Scottish National Party, Aberdeenshire East)

It is a difficult situation with regard to the secure estate. As most people who have followed the issue well understand, there has been substantial overcapacity. I assure the member that meetings are being held to establish the best way to secure the maximum employment, as well as fulfilling the primary purpose, which is to ensure that care is available for the children in the secure estate.

I have been involved in meetings about the issue, and I know that the Cabinet Secretary for Justice, and indeed the member, have been strongly involved in the matter. Everybody is working their best to secure the best outcome for the staff who are employed at the unit and for the children in the secure estate.

Legal Profession (Cadder Ruling)

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

3. To ask the First Minister what discussions the Scottish Government has had with the legal profession regarding the attendance of solicitors during interviews following the Cadder ruling. (S4F-00084)

Alex Salmond (Scottish National Party, Aberdeenshire East)

The Scottish Government has had regular discussions with the Law Society of Scotland regarding the provision of police station advice following the Cadder ruling. Once we have seen the results of Lord Carloway’s review of the law and practice of detaining and questioning suspects in criminal investigations, the society will continue to be fully involved in discussions on longer-term changes that might need to be made.

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

I welcome the continuing discussions with the Law Society of Scotland and recognise that Scotland’s legal system is clearly capable of adapting quickly to the demands that are placed on it, but does the First Minister agree that, at the very least, Scottish courts must be given parity of referral, under certification, to the United Kingdom Supreme Court as soon as is practicable?

Alex Salmond (Scottish National Party, Aberdeenshire East)

Yes, I do. I place on record my thanks to Lord McCluskey and his expert team for producing such a thorough and well-considered report in such a short timescale, in order to inform today’s parliamentary debate on the subject, the debate that will take place over the summer and the definitive report, which will be produced in the autumn.

As Christine Grahame correctly identifies, a key recommendation of the report is that Scotland’s highest court of criminal appeal, the High Court of Justiciary, must be placed on a level footing with other courts across the UK when it comes to appeals before the UK Supreme Court. I welcome that recommendation and the recommendation that amendments be made to the Scotland Bill to limit the role of the UK Supreme Court by ensuring that referrals from the High Court of Justiciary can be made only on the same basis as referrals from courts south of the border. That anomaly must be addressed, and the appropriate amendments to the Scotland Bill should be made after Lord McCluskey’s group publishes its final report this autumn.

Johann Lamont (Labour, Glasgow Pollok)

I bring the First Minister back to the original question’s reference to the attendance of solicitors during interviews. He will be aware that the Law Society of Scotland has estimated that the proposed Scottish Legal Aid Board helpline will cost twice as much as the amount that is currently spent on police station advice. In addition, it has advised that solicitors are voting with their feet, by moving away from the new process. In the interests of achieving value for money, will the First Minister agree to investigate the matter? Will he resist the development of any system that can be shown to be more costly and less effective?

Alex Salmond (Scottish National Party, Aberdeenshire East)

That is precisely why Lord Carloway has been asked to review the law and practice of detaining and questioning suspects in criminal investigations. I am sorry that Johann Lamont does not understand, or does not want to understand, why these matters are relevant. She should look at Lord McCluskey’s report, which says that many aspects of Scottish criminal proceedings have unexpectedly come before the UK Supreme Court on a basis that the report describes as “seriously flawed”. That, says the report, has created “real problems”.

That is where the problems came from. We hope that the solution will lie in implementation of the McCluskey recommendations when the final report comes before us, and in Lord Carloway’s review. That is precisely the way in which to deal with such matters. I know that Johann Lamont really supports the actions that we are taking; she is just finding it a wee bit difficult to say so.

Borrowing Powers

Derek Mackay (Scottish National Party, Renfrewshire North and West)

4. To ask the First Minister what recent discussions the Scottish Government has had with the United Kingdom Government on the issue of borrowing powers. (S4F-00091)

Alex Salmond (Scottish National Party, Aberdeenshire East)

On 20 June, the Cabinet Secretary for Finance, Employment and Sustainable Growth, John Swinney, presented proposals to the Chief Secretary to the Treasury on borrowing powers in the Scotland Bill. Those proposals reflect the consensus across the Scottish Parliament for a robust, substantial and sustainable borrowing framework for Scotland.

Derek Mackay (Scottish National Party, Renfrewshire North and West)

I look forward to those proposals being considered by the UK Government.

It is clear that there is now consensus in the Parliament for the urgent transfer of borrowing powers. Does the First Minister share my belief that Scotland must have access to more economic levers to boost economic activity and support jobs? Does he welcome the comments by Lord Foulkes that the time has now come for Scotland to have full fiscal responsibility?

Alex Salmond (Scottish National Party, Aberdeenshire East)

It is extraordinary that, in four years in this Parliament, Lord Foulkes hardly ever mentioned a sensible idea but, as soon as he went back to the House of Lords full time, he came up with a cracker. I have it here:

“I think that the time has now come when we must seriously consider a more radical change in funding devolved Governments. It is described by some as full fiscal autonomy; I would describe it more appropriately as full fiscal responsibility; so that the responsibility for raising money as well as spending it goes to the Scottish and other Governments.”—[Official Report, House of Lords, 15 June 2011; Vol 728, c 857.]

Out of the mouths of babes and innocents and Lord Foulkes comes a declaration that the Labour Party in Scotland would do well to follow.

Jim Hume (Liberal Democrat, South Scotland)

On the Forth road bridge, does the First Minister welcome the United Kingdom Government’s allowing of prepayment, which will, of course, allow other infrastructure projects in Scotland to go ahead?

Alex Salmond (Scottish National Party, Aberdeenshire East)

We welcome initiatives, but I remind the member that prepayment will amount to the ability to advance borrow perhaps £100 million or £200 million. That money is not a gift; it must be paid back. The Forth crossing, even under the rigorous financial control that the Cabinet Secretary for Finance, Employment and Sustainable Growth is exerting, which has resulted in substantial savings to the Scottish purse, will cost more in the order of £1.5 billion. However, any contribution and sign of flexibility is welcome. I know that, with his long-standing support not only for fiscal responsibility but for fiscal federalism even, the member well understands why prepayment is no substitute for real financial and economic powers.

Care Homes (Inspections)

Jackie Baillie (Labour, Dumbarton)

5. To ask the First Minister what action the Scottish Government will take in response to figures showing that one in 10 care homes have been assessed by Social Care and Social Work Improvement Scotland as weak or unsatisfactory in at least one area of inspection. (S4F-00087)

Alex Salmond (Scottish National Party, Aberdeenshire East)

As Jackie Baillie knows, the Government has already taken action. It was this Government that introduced the grading system to which she refers. That system showed that, in 2008-09, 10 per cent of care homes for older people were unsatisfactory or weak under one of the five new quality measures. The figure for 2010-11 has fallen by nearly a quarter. That is good progress, which I am sure Jackie Baillie will be the first to welcome. There is still room for improvement, of course, and we will strive to make further progress.

Jackie Baillie (Labour, Dumbarton)

If a significant proportion of our care homes are being assessed as weak or unsatisfactory, that is still a matter of concern, as we all want the best standards and the best possible quality of care for our older people.

The new care inspectorate has a key role to play, of course. A couple of weeks ago, the Cabinet Secretary for Health, Wellbeing and Cities Strategy was adamant that the cut in that inspectorate’s budget was 1 per cent and that I was wrong to say that it was 25 per cent. This week, the inspectorate’s corporate plan for 2011-14 shows a 25 per cent cut in its budget, and let us not forget the 20 per cent reduction in staff. Who should we believe—the cabinet secretary or the care inspectorate? Will the First Minister now act, reinstate the budget and stop the staff cuts, so that we can protect the quality of care for Scotland’s older people?

Alex Salmond (Scottish National Party, Aberdeenshire East)

Who should we believe on these matters? Certainly not Jackie Baillie. The care regulator’s budget for 2011-12 is £35.444 million, which is a reduction of 1 per cent in the combined budget of the three predecessor organisations for 2010-11. Jackie Baillie well knows, as the Labour Party has consistently demanded details on this, that budgets for future years are looked at as part of the spending review and against a framework that considers the risk and inspection regime. The crucial point that Jackie Baillie has chosen not to inform members about is that the new inspections are unannounced and risk based. That is a much better framework, and we should have some satisfaction that the new regime has resulted in a fall in the number of unsatisfactory homes. Jackie Baillie will find that her fears are again misplaced, I am afraid, as future budgets are announced. The 1 per cent figure is detailed and verified.

Bob Doris (Scottish National Party, Glasgow)

The Health and Sport Committee has just announced that it will conduct an inquiry into how care for the elderly is regulated, which is a serious attempt to play its part in improving that care, as opposed to engaging in the cheap point scoring that we have just heard. Will the First Minister encourage all those who have concerns to submit evidence to that inquiry and, more important, will the Scottish Government take into account any conclusions that are drawn from it to inform policy and reform?

Alex Salmond (Scottish National Party, Aberdeenshire East)

The debate on care for the elderly is hugely serious. The Parliament, the Government and every single one of us owe an obligation to older people. It is not helpful to deliberately quote a figure from 2008-09—10 per cent—for the number of care homes for older people that are unsatisfactory and not acknowledge that the 2010-11 figure showed substantial improvement. That was acknowledged not in Jackie Baillie’s question, but after I had pointed it out.

That level of debate does not do this subject proper justice. The Government, the Parliament and the parliamentary committees owe it to the older people of Scotland to increase in every possible way and sustain the inspection regime to ensure that performance throughout the care home sector is satisfactory. That is a joint obligation and undertaking. I look forward to the parliamentary committee investigating the matter, because it will see that that commitment is held by all the parties represented in this chamber.

Ambulance and Fire Service Crews (Attacks)

Murdo Fraser (Conservative, Mid Scotland and Fife)

6. To ask the First Minister what action the Scottish Government is taking to reduce the number of attacks on ambulance and fire service crews. (S4F-00096)

Alex Salmond (Scottish National Party, Aberdeenshire East)

Any attacks on emergency service staff are deplorable and we condemn them in the strongest possible terms. As Murdo Fraser knows, we have provided significant financial support for initiatives aimed at protecting emergency workers. For example, the Scottish Government has provided £37 million for a new firelink system that allows fire service staff to utilise a priority call function requesting urgent police assistance if they come under attack and, in 2010, we provided £350,000 to health boards to fund projects to counter violence and aggression in the workplace, which of course, will extend to ambulance workers.

Murdo Fraser (Conservative, Mid Scotland and Fife)

I agree that everyone must condemn these attacks. However, figures published earlier this week show that ambulance crews in Tayside and Fife have been assaulted more than 50 times in the past three years and such incidents are increasing. How will the Scottish Government ensure that the laws protecting those to whom we owe so much are rigorously enforced and that those who carry out such attacks are severely punished?

Alex Salmond (Scottish National Party, Aberdeenshire East)

One of the reasons why we have such full statistics is the special status that emergency workers received through legal changes under the Emergency Workers (Scotland) Act 2005, which was passed under the Labour-Liberal Administration, and the 2008 provisions extending that protection to cover a range of other emergency and support staff. Taking into account our agreement that any verbal or physical abuse of our emergency service workers is totally unacceptable, I know that Murdo Fraser would not like to give the impression that the trend is rising. I note, for example, that in 2006-07 there were 283 of these deplorable attacks in Scotland; the most recent figures, which are for 2010-11, show that there were 265. However, no matter whether the figure is 283 or 265, it is still far too many. I hope that Murdo Fraser will acknowledge the welcome for the firelink initiative from the Chief Fire Officers Association Scotland and the Fire Brigades Union, indicating that they appreciate that it is an extra tool for the necessary protection of our emergency workers.

“The Scheme”

John Scott (Conservative, Ayr)

The next item of business is a members’ business debate on motion S4M-00193, in the name of Willie Coffey, on “The Scheme”. The debate will be concluded without any question being put.

Motion debated,

That the Parliament notes the interest in, and issues raised by, BBC Scotland’s programme, The Scheme; considers that the programme, almost exclusively highlighting people with drug and alcohol addictions, gave an unfair impression of the wider community of Onthank; recognises the many challenges facing people with addictions and leading chaotic lives all over Scotland, and supports measures to assist those leading such lives who want to break the cycle of addiction and return to a normal life.

Willie Coffey (Scottish National Party, Kilmarnock and Irvine Valley)

I lodged the motion to help to restore some balance to the story that the BBC told about my community in Onthank. Despite the film makers’ initial promises that the film would be balanced, it turned out to be nothing of the kind. We did not expect a gloss-over of many of the problems and issues that can be seen anywhere else in Scotland, but we were entitled to expect some balance from a publicly funded broadcaster that takes money from people in licence fees only to turn against them by depicting their community in such a way. It was tabloid TV at its worst.

Local people were kidded and conned by the venture. They feel used and abused, and many who agreed to be filmed now wish that they had not done so. It simply is not good enough to say that it was an exposé of chaotic lifestyles and an insight into addiction. If that was the case, why was it necessary to accompany the stories with the depressing visuals of water running down the drains on a rainy day and graffiti-covered walls and shots of privately owned derelict flats? That was what upset so many local people. The film showed vulnerable, at-risk people parading and playing up in front of the camera, but showed the wider community in a very poor light, too. As recently as a few weeks ago, local children who were playing football for their school team were jeered as “The Scheme” team. There is no defence for that, and there has been no hint of an apology from the BBC.

We will not find out the impact on the community as a whole if we read the brief from Ian Small from the BBC, as it does not mention that. I take it from that that the BBC is not interested in how the community in Onthank feels about the programme that it commissioned. All that we got was the usual stats about how good the viewing figures were. If the programme is the best thing that the BBC has done in Scotland for 10 years, that raises questions about what on earth it has been doing with its public funding for so long.

It was wrong and dangerous to expose on TV for nothing more than public entertainment people who are already at risk and lead chaotic lifestyles. I am sure that the public are following with some alarm the progress made by a few of them since the programme was shown. What will happen to those people when the interest fades, the interviews end and the money runs out? Who will look after them? It certainly will not be the BBC; rather, the decent, honest folk of Onthank, the local authority and voluntary staff will pick up the pieces from those chaotic lifestyles and try to help people to recover some kind of normality. How dare people breenge into our community, do that to us and then swan off into the sunset, leaving behind nothing but an angry community and broken hearts.

Mr Small has claimed that what was on screen was neither contrived nor constructed. How on earth did the camera crew manage to be in a house when the kids were already late for school, with their mother still in her bed? Did they have a key to get in? Did the mother let them in and then go back to bed to get a better camera shot? During all that rubbish, why did nobody think about the kids and get them to school on time? I suppose that the film makers and then the BBC opted for the dramatic rather than thinking about vulnerable kids. It was convenient that the camera also just happened to be rolling for another scene in which a girl came out of her house to slap another person in the face, perfectly on cue. That was purely a coincidence, of course.

If the programme had stuck strictly to the characters only, there might have been a case for it, even with the concerns that I have expressed for their long-term welfare, but it did not. It strayed beyond them to show in the worst possible manner the community that I was born and brought up in, and that was wrong.

Anybody who bothers to look will see that Onthank is a wonderful place to live in. The schools in it—Mount Carmel and Hillhead—are booming and local families are queueing up to get their kids into the local primary and nursery schools. Only on Tuesday, I attended the prize giving at Onthank primary school, which has a thriving Gaelic unit. The event was packed to capacity with proud parents, grandparents and youngsters. I know that the BBC was not interested in telling that story.

I would like a clear message to go out to the BBC from this debate that, in the whole controversy, it is the one body that is open to severe criticism. Everybody else has an excuse for their part in the programme. The programme makers are clearly in the business to make money, and they certainly did that on the back of some of the most vulnerable people in Scotland, especially as they were able to sell the programme for broadcast outside Scotland.

When the BBC was comparing the edited programmes with the apparent objective of the series, it should have demanded changes, not least to the title of the series. There was no one scheme in the programme, and there never was. Those who appeared on screen did not all come from Onthank, and the programmes gave no sense of the complexity of life in Onthank or in any other scheme in any meaningful sense. When the BBC realised that it was being given a programme that focused almost entirely on the lives of people directly and deeply affected by drugs, alcohol and crime, it should have insisted that the families were drawn from a much wider area and that a single scheme and its residents should not bear the brunt of the media focus. The people at the BBC who flunked that decision should hang their heads in shame, and their subsequent failure to acknowledge the error is an example of the media at its worst—being prepared to exercise the power of the press without taking responsibility for the consequences.

The BBC has a duty to come back to Onthank and repair the damage that it has done to the community. We did not deserve to be treated like that. In a perverse way, the programme has galvanised the community by giving us a keener sense of identity and a determination to promote the many positives that we share in Onthank. Let us see if the BBC is up to the challenge of helping us to recover, and perhaps a new film about Onthank will be its next best seller.

Margaret Burgess (Scottish National Party, Cunninghame South)

I thank Willie Coffey for bringing the debate to the chamber because it raises some important issues. Unlike Willie, I am not from Onthank, but I know the community well. I worked with the people of Onthank and others in Kilmarnock for more than 24 years. One of the first things that I learned when I took up my job was that Onthank considers itself to be a community. The people see themselves first and foremost as residents of Onthank.

I remember that when I started working there, I suggested to someone that Onthank is still Kilmarnock; I was corrected and I never made that mistake again. Onthank is a very proud community and the people do not deserve to be treated in the way that they have been by the BBC.

Vulnerable people were exploited and, as my colleague Willie Coffey has already said, they regret it now. Some of them are living with the consequences of their day of fame.

The people of Onthank are proud of their community. They also know that there are problems in the community. They know about the drug and alcohol problems and that some people lead chaotic lifestyles, but they are a small minority of the residents. The people of Onthank, the community groups, the local authority, the health board and voluntary agencies are working actively to address those problems, which are not exclusive to Onthank; they are in every community in Scotland. We have a duty to work together to find long-term solutions to the deep-rooted problems in all our communities.

My issue with the BBC is about the name of the programme. “The Scheme” focused not on a problem but on an area, and that was wrong. It concentrated almost exclusively on the problems of a small minority of people who are living chaotic lifestyles. There was no balance between that and all the good things that happen in Onthank, such as the schools that Willie Coffey talked about. This week, I read about the nursery school in Onthank getting a glowing report from the care commission, and that the parents were congratulated on their input and the effort that they put into the nursery school. A lot of what is going on in Onthank is good.

Willie Coffey is right about the impact that the programme has had on the people and their families—I saw it. They took it as a slur on their community, which was portrayed as a community blighted by drugs and alcohol, as if there was nothing else there. That was very insulting to them. They saw the spectacle of people from many parts of Scotland driving around Onthank expecting to see a rammy in the street or people taking drugs in public, which, of course, they did not see. They saw a housing estate like any other housing estate in our towns and cities, with people going about their business as they would do anywhere. That is the reality of Onthank.

The programme did highlight some important issues about drugs, alcohol and deprivation. Society needs to know about those issues and we must address them, so I do not have an argument with the BBC about that. My argument is with the way in which it tried to build that into some sort of reality TV programme.

The programme had a negative impact on the majority of the Onthank residents, and on the wider community of Kilmarnock. The people saw their community turned into something akin to a soap opera. I urge the BBC and any other programme producers who want to raise issues in future to consider the impact that the programme will have. When they leave the town and walk away, they will, I hope, consider the problems, the negativity and the way that people are left feeling, and I hope that they will consult the wider community before they try to put a programme like that on again.

Ruth Davidson (Conservative, Glasgow)

First, I declare an interest in that I used to be employed by BBC Scotland, although I was never employed by the factual department in charge of the documentary “The Scheme”. In addition, I have never watched the programme. Having read a write-up of it, I had no wish to watch it. I agree that it sounded like tabloid television at its worst—a number of newspapers have called it “poverty pornography”—and that is not my kind of show. Therefore, I do not have the intimate knowledge of the programme that some members in the chamber have when talking about it.

However, I know that nobody wants to see their community misrepresented, particularly on screen to a wide sector of Scottish society. I grew up in Fife and went to school in Buckhaven. I know that there are myriad ways in which communities can be represented. There were high levels of deprivation, drug abuse and economic inactivity in the areas of Methil, Buckhaven and Kennoway, but that was not the whole story for me when growing up. My school delivered a fantastic extra-curricular roster of activities that helped all the children at the school to make the most of their talents. Mr Coffey is right to refer to the Onthank school and the great work that it does at the heart of the community.

The programme has, however, provoked a debate in Scotland about not just poverty and the representation of the people in the programme but addictions. I note that the text of Mr Coffey’s motion refers to recognising the challenges for people who suffer from addictions and lead chaotic lifestyles and to measures to assist those who lead such lives.

Within Mr Coffey’s wider point, I want to talk about the new drugs strategy for Scotland, which a number of my Conservative colleagues helped the previous Scottish National Party Government to implement. The strategy is based on treatment and abstinence, and is a step forward. However, there are grumblings that the strategy’s implementation on the ground does not live up to its aims and ethos. A recent report from Audit Scotland, entitled “Drug and alcohol services in Scotland”, referred to the scale of the problem of drug and alcohol abuse in Scotland. We have a high level of such abuse, particularly compared with other European nations: its incidence has doubled in the past 15 years. The latest figures show that in 2007-08, £173 million was spent on combined drug and alcohol abuse services.

That is not the whole story, however, because Government policy and wider health policy concentrate too much on inputs in drug and alcohol services for tackling what are complex and conflicting problems and not enough on outputs and—most importantly—outcomes, which are far harder to quantify. I hope that the Government recognises the merits of the suggestions in the Audit Scotland report on what we can do better to measure our progress on the ground in order to offer help to the large number of agencies involved in addressing alcohol and drug addiction in co-ordinating their work.

It is entirely appropriate that we, as legislators in the Scottish Parliament, discuss the serious issues of poverty and drug and alcohol abuse, which affect all areas of Scotland and not just Onthank, and I thank the member for Kilmarnock and Irvine Valley for bringing the debate to the chamber.

Paul Wheelhouse (Scottish National Party, South Scotland)

I, too, welcome Willie Coffey’s bringing of the debate to the chamber. I speak not as somebody who has a direct connection with Kilmarnock, although Willie Coffey is aware of my genetic connection to the area, but as somebody who represents the south of Scotland and, therefore, felt that I had a responsibility to the community of Onthank to state my view.

Like Willie Coffey and Margaret Burgess, I have a number of concerns about the BBC programme. The main thing to highlight is the programme’s visual impact, as Willie Coffey rightly said. I was a neutral observer of the programme and I watched only one episode—that was enough for me—but I was struck by the frequent, low-angle shots from the gutter, which showed cans rolling around in the alleyways, and by the focus on graffiti. I thought that the approach was unhelpful and exacerbated the negativity of the programme.

The BBC sent us data about the viewing figures and made great claims about the programme’s popularity demonstrating how good a documentary it was. I interpret the figures slightly differently, The BBC said that the programme had 840,000 viewers on average, which was significantly more than is typical for programmes that are shown at that time of day, which usually attract 230,000 viewers. I congratulate the BBC; it generated a lot of viewing. However, if the BBC is right to suggest that the programme stimulated a debate, why was there a gap of 500,000 between the number of people who viewed the programme and the number of people who viewed the programme about the issues that followed? It is clear that 500,000 people watched the programme for reasons other than those that the BBC claimed.

There was a degree of exploitation—albeit perhaps unintended—of the people of Onthank for entertainment. Members who, like me, use Facebook regularly will have seen hundreds of negative posts about the residents in “The Scheme”. We can conclude only that the programme was about entertainment. It was a reality TV show; it was not genuinely about presenting serious issues for debate. I take Ruth Davidson’s point and I hope that she is right that a genuine debate about the issues will follow, but I suspect that half a million viewers of the programme did not think about the issues and simply enjoyed the programme for entertainment.

The BBC said:

“Concerns were raised around the graphic nature of certain scenes. However, the fact that some people were so shocked surely underlines the need to reveal and inform. Sometimes a powerful image can provoke more response and engagement than any number of words.”

That might be true. However, Willie Coffey is right; the BBC exploited negative aspects. For example, the issue to do with the state of the community centre building was presented in a way that almost suggested that the residents who were part of the group that was trying to restore the centre were going about things in a cack-handed way. When people turned up at the drop of a hat to see the person who was inspecting the building, the programme suggested that that was inappropriate.

Douglas Hamilton, head of Save the Children in Scotland, said:

“The only way to understand deprivation is to see it through the lives of those who experience it on a daily basis.”

I was disappointed by his comments about “The Scheme”, which failed to reflect the exploitative nature of the programme. As Margaret Burgess said, people who visit the estate realise that it is a pretty normal Scottish estate, but anyone who watched the programmes would draw anything other than that conclusion.

I support Willie Coffey’s motion and I hope that the BBC will reflect on the criticisms that have been made in the Parliament.

Roseanna Cunningham (Scottish National Party, Perthshire South and Kinross-shire)

I, too, congratulate Willie Coffey on securing the debate. We heard him give a passionate defence of his community. That was an example of an elected representative doing exactly what an elected representative should do, so I doubly congratulate him in that regard.

The common theme in the debate was the widespread perception of a lack of balance in the programme. I will return to that, but as Willie Coffey and other members know, my ministerial responsibilities do not extend to broadcasting, so I am a little wary of stepping into a minefield by making a critique of broadcasting. It would be hard to defend such views in anything other than an individual sense. I heard the individual responses from members and I am bound to say that as an individual I have great sympathy with what they said.

Like Paul Wheelhouse, I saw some but not all of the series, for exactly the same reason that he and Ruth Davidson gave—it really was not something that I particularly wanted to watch. I do not know whether Willie Coffey would regard that as copping out or whether he is grateful that there were people who felt that the programme just was not appropriate and who did not want to put it on their viewing schedule.

I will say a few words about the Government’s perspective on the important social issues raised in the programme, to which members have referred. We as a Government recognise the role of strong, cohesive and innovative communities in collectively tackling issues around drugs, alcohol, deprivation and social exclusion. Margaret Burgess and Willie Coffey both gave examples of that happening in Onthank, which the programme makers did not really cover.

With our partners, we are supporting safer and stronger communities throughout Scotland. As I said earlier, almost all members talked about balance. There was perhaps one small redeeming feature of the programme: the final episode focused a little more on hope, rather than hopelessness. We saw the beginnings of a sense of recovery from drugs and alcohol and the impact that a few inspired individuals can have when they work together to meet a community need. Both Willie Coffey and Margaret Burgess talked about those people.

We know the importance of the early years in offering the very best start in life for all Scotland’s children. Although I did not see the bit of the programme that involved the young girl in one of the families, it obviously hit home very hard for those who did see it.

Every Scot has a fundamental right to live in a safe and strong community.

We should examine more closely the potential, the strengths and the social innovations that exist in all communities throughout Scotland and not define a community solely by the challenges that it faces. It is the case—Margaret Burgess pointed this out—that the problems focused on could be found in many communities in Scotland. She could have gone much further; she could have pointed out that such problems are manifest in communities not just throughout the whole of the United Kingdom but throughout Europe, too. In one sense, the difficulties, challenges and problems faced within Onthank are faced by many other communities. It was a little unfair to single out a community and to suggest that it was somehow special. That is where the issue of balance comes in. The real issues of drugs, alcohol and deprivation should not be about entertainment, because many of our communities face serious and important challenges in that regard.

Progress is being made and it is a pity that more emphasis was not put on recovery from drugs and alcohol abuse. Communities that support sustained recovery from drug and alcohol addiction are flourishing across Scotland. Those communities are of interest. They belong to the individuals who are in recovery, the network of workers, peers and families involved and others who support those individuals more widely. Those communities welcome all those who aspire to recover; they support them to change their lives and become contributing members of the community. I believe that Willie Coffey, Margaret Burgess and other members would have liked to have seen more focus on those individuals, that contribution and that support, rather than what we got from the programme makers.

As Ruth Davidson said, the Government is very much part of the whole drug programme, the road to recovery, which is beginning to have an impact, although we face a massive challenge. Big improvements are being made: waiting times for access to treatment are coming down significantly. If Ruth Davidson had been in the Parliament four years ago, she would have known that the issue of waiting times for access to treatment is massive in many parts of Scotland. We have made huge inroads in that regard, just as we have made huge inroads in relation to investment to tackle Scotland’s relationship with alcohol.

There is a very great deal to be done, but it is not just about Onthank; challenges are faced right across Scotland and the UK. I warmly congratulate Willie Coffey on his positive contribution about the people he represents.

13:00 Meeting suspended.

14:15 On resuming—

Social Care and Social Work Improvement Scotland (Capacity)

Siobhan McMahon (Labour, Central Scotland)

1. To ask the Scottish Executive what its position is on the capacity of Social Care and Social Work Improvement Scotland to carry out its duties in light of recent budget changes. (S4O-00092)

Nicola Sturgeon (Scottish National Party, Glasgow Southside)

The change from the combined budgets of Social Care and Social Work Improvement Scotland’s predecessor bodies in 2010-11 to its budget for 2011-12 is from £35,894 million to £35,444 million, which is a reduction of just over 1 per cent. The care inspectorate maintains the required skill mix and experience to provide the necessary assurance as to the quality and standards of regulated care services. The budget for future years will be set in the context of the spending review and will be driven by the need to ensure a robust system of inspection.

Siobhan McMahon (Labour, Central Scotland)

Is the cabinet secretary aware of the worrying data that SCSWIS has released in response to Labour’s freedom of information request? Does she know, for example, that in North Lanarkshire four privately owned care homes were revealed to be weak on quality of care and support and that eight privately owned care homes are either weak or unsatisfactory in at least one inspection area? That means that 23 per cent of North Lanarkshire stock is falling short of the required standard. I am sure that the cabinet secretary will agree that that is unacceptable.

Tricia Marwick (None, Mid Fife and Glenrothes)

Can we get to the question?

Siobhan McMahon (Labour, Central Scotland)

Does the cabinet secretary agree that cutting the budget for SCSWIS, the organisation that is tasked with supporting improvement and signposting good practice, will not improve matters, will inhibit the organisation’s capacity to carry out the duty and will lead to further deterioration in standards?

Nicola Sturgeon (Scottish National Party, Glasgow Southside)

I say to the member seriously and genuinely that that is a serious issue and I appreciate any member who comes to the chamber to raise it. We should all be aware of our responsibilities on the issue and pledge to do what we can to ensure that older people have the standards that they have a right to expect. However, the press release that Siobhan McMahon issued yesterday had inaccuracies in it. For example, it said that there were eight care homes in North Lanarkshire, when in fact there are 36 care homes there. The situation is that four services had grades of 1 or 2 for care and support out of a total of 35 assessed care homes for older people in North Lanarkshire. That is 11 per cent of those care homes, not 100 per cent, as was implied in the press release that Labour issued yesterday. Fifty-six per cent are graded good or very good.

I repeat the comments that the First Minister made at First Minister’s question time. We want to ensure the highest standards for every older person in care homes. However, it does nobody in Scotland, including older people and their families, any service to use information that is not factually accurate. The Government will continue to take the necessary action, including on the budget of the care inspectorate, to ensure that older people know that there is a robust inspection regime in place to ensure that we have the standards that all of us want older people to have.

Derek Mackay (Scottish National Party, Renfrewshire North and West)

To ask the Scottish Executive whether procedures are in place to ensure that national health service medical staff seek a full employment history for all new mesothelioma cases.

Michael Matheson (Scottish National Party, Falkirk West)

That is question 6, Presiding Officer.

Mary Scanlon (Conservative, Highlands and Islands)

Given the lack of commitment in the past by the Scottish Commission for the Regulation of Care to following up problems that were identified in care home inspections, I ask the health secretary whether all reports and follow-up reports by SCSWIS can be reported electronically to constituency and regional members within seven days to ensure that all members of the Parliament have the same information on care homes as we currently receive for school inspections.

Nicola Sturgeon (Scottish National Party, Glasgow Southside)

I absolutely agree with Mary Scanlon on the importance of transparency and appropriate follow-up, which are vital components of the inspection regime. If weaknesses are identified, that is a sign of the success of the regime, but we should expect those weaknesses to be followed up and rectified. I am more than happy to relay Mary Scanlon’s specific suggestion to SCSWIS to discuss its practicality. If appropriate, and if it is acceptable to Mary Scanlon, I will get back to her on that point in writing.

Measles Outbreak (Mainland Europe)

Stewart Maxwell (Scottish National Party, West Scotland)

2. To ask the Scottish Government what steps it is taking to warn parents about the measles outbreak on mainland Europe and the dangers of taking abroad children who have not had two doses of the measles, mumps and rubella vaccine. (S4O-00093)

Michael Matheson (Scottish National Party, Falkirk West)

Health Protection Scotland has undertaken a range of activities to raise awareness of the measles outbreak in mainland Europe. Travax, the travel health advice website for national health service professionals that Health Protection Scotland maintains, has been updated to reflect the current situation.

Health Protection Scotland has written to professionals across the NHS several times—it wrote as recently as last week—to provide updated advice. In May, it wrote to directors of education to provide advice that was to be passed on to all parents on the importance of ensuring that children are protected against measles before any travel or school trips to Europe. Similar advice was also provided to universities and further education colleges. Health Protection Scotland continues to monitor the situation and will update its advice as required.

Stewart Maxwell (Scottish National Party, West Scotland)

I thank the minister for his detailed answer. I welcome the fact that the latest quarterly figures published by ISD Scotland—for the quarter that ended on 31 March 2011—show that uptake at five years of age of one dose of the MMR vaccine is 96.2 per cent, which once again exceeds the 95 per cent target. However, uptake at five years of age of the second dose of the MMR vaccine is only 89 per cent. Given the public health concerns that could result from a low uptake of the MMR vaccine, what does the Government intend to do to encourage parents to ensure that their children receive the vital second dose?

Michael Matheson (Scottish National Party, Falkirk West)

Stewart Maxwell raises a worthwhile point. For children to have the proper protection from measles, it is extremely important that they complete the two doses of the MMR vaccine.

Practice nurses and general practitioners have done a considerable amount of work to recall parents and their children for the second dose. As a result of such initiatives, uptake of the second dose is 93 per cent at the age of six.

It is clear that there is more progress to make, but I assure Stewart Maxwell that uptake of the first and second doses of the MMR vaccine is higher in Scotland than in any other part of the United Kingdom. It is important that parents recognise that their children need to complete both doses of the MMR vaccine to be properly protected from measles.

Richard Simpson (Labour, Mid Scotland and Fife)

The minister will be aware that I raised the issue more than once in the previous parliamentary session and that I have done so in recent parliamentary questions. I welcome the fact that uptake levels have always been higher in Scotland than in the rest of the UK and that the figures are approaching a satisfactory level, but I ask the minister to reconsider a written answer that I was given in the previous session to a question about England’s catch-up campaign. I admit that the situation there started from a lower base, but we have not had such a public campaign to encourage parents to vaccinate children whom they did not get vaccinated—partly because of the approach of Opposition parties during our time in power of attacking the combined MMR vaccine. Will he reconsider the approach, which led to low uptake? Significant numbers of older children are unvaccinated.